Calvin J. Weber v. United States ( 1997 )

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No. 96-2667
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Calvin J. Weber, *
*
Appellant, *
*
Carolyn A. Weber; Tracy M. Weber;*
Timothy P. Weber; Richard D. * Appeal from the United States
Weber, * District Court for the
* Eastern District of Missouri.
Plaintiffs, *
* [UNPUBLISHED]
v. *
*
United States of America, *
*
Appellee. *
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Submitted: December 26, 1996
Filed: January 2, 1997
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Calvin J. Weber, a former civilian Army engineer, appeals
from the magistrate judge's1 order dismissing his Federal Tort
Claims Act (FTCA) action for failure to state a claim. Weber, pro
se, filed this FTCA complaint on behalf of himself and his four
minor children against the United States. Weber claims that the
Federal Bureau of Investigation (FBI) investigated him for
disclosing classified Army information and created files containing
1
The Honorable Lawrence O. Davis, United States Magistrate
Judge for the Eastern District of Missouri, to whom the case was
referred for final disposition by consent of the parties pursuant
to 28 U.S.C. § 636(c).
false criminal accusations, causing him "a criminal stigma" and
employment damages, and possibly also stigmatizing his children and
hindering their future employment prospects; and that the
government's failure to release these files in response to his
Freedom of Information Act (FOIA) requests because of an ongoing
"classification review" constitutes "an act of unwarranted abuse of
process." The magistrate judge granted the government's motion to
dismiss, and sua sponte dismissed Weber's children because Weber
failed "to file a motion to proceed as next friend" for his
children. Weber timely appealed, and we now affirm.
Reviewing de novo the grant of dismissal under Fed. R. Civ. P.
12(b)(6), Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442,
445 (8th Cir. 1995), we believe the magistrate judge properly
dismissed Weber's federal claims. See 28 U.S.C. § 1346(b); Klett
v. Pim, 965 F.2d 587, 589 (8th Cir. 1992) (no FTCA action for
violation of federal statute by U.S. agency); see also Laswell v.
Brown, 683 F.2d 261, 267-68 (8th Cir. 1982) (no FTCA claim for
Fifth Amendment violations), cert. denied, 459 U.S. 1210 (1983).
We further conclude that Weber's abuse-of-process claim is
barred by the FTCA's discretionary function exception. See 28
U.S.C. § 2680(h); Georgia Cas. & Sur. Co. v. United States, 823
F.2d 260, 263 (8th Cir. 1987) (FBI investigation is "discretionary
function"); see also Crumpton v. Stone, 59 F.3d 1400, 1406 (D.C.
Cir. 1995) (FOIA classification decision is "discretionary
function"), cert. denied, 116 S. Ct. 1018 (1996). Finally, we
conclude the magistrate judge did not err in dismissing Weber's
children. See Fed. R. Civ. P. 17(c).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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