Bill L. Harbert v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 14, 2006
THOMAS K. KAHN
No. 06-10797
CLERK
D. C. Docket No. 05-00173 CV-LSC-S
BILL L. HARBERT,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(November 14, 2006)
Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
_____________________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
Appellant, Bill L. Harbert (“Harbert”), appeals the district court order
dismissing his declaratory judgment action against Appellee, the United States of
America (“the Government”), for lack of subject matter jurisdiction. For the reasons
that follow, we affirm.
I. BACKGROUND
A. Facts
The facts are, for the most part, taken verbatim from the memorandum
opinion of the district court. Harbert is the former chairman of Bill Harbert
International Construction, Inc. (“BHIC”), a Delaware corporation with its
principal place of business in Birmingham, Alabama. Harbert is also the former
managing director of Bilhar International Establishment (“Bilhar”), formerly
known as Harbert International Establishment. Both companies were involved in
the international construction business. On December 6, 2001, the United States
Agency for International Development (“USAID”) suspended BHIC, Bilhar, and
Harbert from procurement and nonprocurement activities on USAID projects,
pending the completion of the investigation of Bilhar and BHIC for alleged “bid-
rigging” on USAID projects in Egypt from 1988 through 1996.
On July 25, 2001, a federal grand jury indicted BHIC, Bilhar, and Bilhar’s
former president, Elmore Roy Anderson, for violation of the Sherman Act, 15
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U.S.C. § 1, and conspiracy to defraud the United States, 18 U.S.C. § 371. A plea
bargain was reached whereby Bilhar pleaded guilty to a violation of the Sherman
Act and BHIC was dismissed as a defendant. Bilhar agreed to pay a $54 million
fine and fully cooperate with the government’s investigation into bid-rigging.
Bilhar was to pay $10 million upon sentencing and the remaining $44 million in
monthly installments of $733,333.33. In return, with the exception of Bilhar’s
president, Elmore Roy Anderson, the government agreed not to criminally
prosecute any other officers, directors or employees of Bilhar. In consideration for
the plea agreement, Harbert agreed to personally guarantee the $54 million fine
levied against Bilhar. Harbert signed a personal guarantee letter.
Following the district court’s acceptance of the plea agreement, Bilhar paid
$10 million to the government and two subsequent payments of $733,333.33 on
March 26, 2002.
On November 18, 2003, the instant action was filed in the United States
District Court for the District of Columbia seeking declaratory relief on behalf of
Harbert before he was forced to begin paying Bilhar’s fine under the personal
guarantee letter he signed. Upon motion of the defendant in that case, the action
was transferred to the Northern District of Alabama.
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Bilhar made payments of $733,333.33 on the first of each month from April
2002 to August 2004. As of September 2004, Bilhar was no longer able to make
its monthly payments. In total, Bilhar paid $31,999,999.90 of its $54 million fine.
In October 2004, Harbert made a $1,466,666.66 payment into the registry of the
United States District Court for the Northern District of Alabama, representing the
two past due payments that Bilhar owed on its fine. On November 1, 2004,
Harbert took over Bilhar’s monthly payments and by agreement of the parties,
those payments are held by the registry of the Northern District of Alabama
pending resolution of this case. Thus far, Harbert has paid $7,333,333.30 into that
account.
Harbert sought a declaration from the district court that the guarantee letter
he signed is invalid and he sought the return of the funds he paid into the registry
of the court.
The government filed a motion to dismiss challenging the district court’s
subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. The district court granted the government’s motion and Harbert then
perfected this appeal.
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II. ISSUES
(1) Whether the district court had subject matter jurisdiction over Harbert’s
claim pursuant to the Due Process Clause of the Fourteenth Amendment.
(2) Whether the Administrative Procedure Act (“APA”) confers subject
matter jurisdiction on the district court.
(3) Whether the district court should have realigned the parties, thereby
destroying the government’s sovereign immunity.
(4) Whether the district court’s dismissal for lack of subject matter
jurisdiction denied Harbert access to the courts.
(5) Whether it is appropriate to remand this case for the development of a
full fact record.
III. STANDARD OF REVIEW
“We review issues of federal subject matter jurisdiction de novo.” Summit
Medical Associates, P.C. v. Pryor, 180 F.3d 1326, 1333 (11th Cir. 1999).
IV. DISCUSSION
A. Due Process
Harbert argues that 28 U.S.C. § 1331 confers federal subject matter
jurisdiction on the district court because Harbert’s amended complaint alleged
violations of his constitutional rights. Specifically, Harbert alleges that (1) he was
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deprived of the constitutional protections ensured by Federal Rule of Criminal
Procedure 11; (2) he was deprived of his Sixth Amendment right to be informed of
the nature and cause of the accusation against him before the criminal fine was
imposed because there was no formal indictment; (3) he was deprived of his
Eighth Amendment right to be free from excessive fines; and (4) he was deprived
of his constitutional rights because no fact was found by a jury or stipulated within
any plea agreement regarding Harbert’s guilt or the appropriateness of the
application of the fine to him.
It is well established that, ‘“[a]bsent a waiver, sovereign immunity shields
the Federal Government and its agencies from suit.”’ JBP Acquisitions, LP v. U.S.
ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000) (citing F.D.I.C. v. Meyer,
510 U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994)). “The terms
of the federal government’s ‘consent to be sued in any court define that court’s
jurisdiction to entertain the suit.”’ JBP Acquisitions, 224 F.3d at 1263 (citation
omitted).
After reviewing the record, reading the parties’ briefs and having the benefit
of oral argument, we conclude that the district court correctly held that it lacked
jurisdiction pursuant to 28 U.S.C. § 1331 because § 1331 cannot be construed to
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constitute a waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133, 1138
(5th Cir. 1972).1
Further, the Supreme Court has recognized that a suit may be dismissed for
lack of jurisdiction if the claim clearly appears to be immaterial or frivolous and is
made solely for the purpose of obtaining jurisdiction. Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210(1998). Based on our review of the record, we conclude that Harbert has alleged
no colorable constitutional claims. Federal Rule of Criminal Procedure 11, by its
terms, applies to a “defendant,” who after being charged with a crime, enters a
plea in court. The purpose of Rule 11 is to ensure that a defendant’s guilty plea is
“voluntary and knowing.” See United States v. Lopez, 907 F.2d 1096, 1098-99
(11th Cir. 1990). The Government never charged Harbert with a crime in relation
to his business dealings with BHIC or Bilhar. Thus, Rule 11 simply does not
apply to Harbert’s claims.
Moreover, given that criminal proceedings were never instituted against
Harbert, we conclude that he suffered no Sixth Amendment violation because the
Government did not indict him and no “sentencing violation” pursuant to
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October
1, 1981.
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Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
or United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621(2005), occurred.
Additionally, Harbert’s Eighth Amendment claim fails because the Eighth
Amendment applies only to punishment invoked as a sanction for criminal
conduct. Ingraham v. Wright, 525 F.2d 909, 912-13 (5th Cir. 1976). As the
Government correctly argues, Harbert, who was never charged in any criminal
proceeding relating to the charges against Bilhar, was simply not entitled to the
same procedures afforded a criminal defendant.
Next, Harbert argues that the federal courts have power, pursuant to the
Constitution, to entertain constitutional claims against federal government agents
without an authorizing statute from Congress. Citing Bivens v. Six Unknown
Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971) and
Eisentrager v. Forrestal, 174 F.2d 961, 964 (D.C. Cir. 1949), rev’d 339 U.S. 763(1950), Harbert contends in certain egregious contexts, when a United States
citizen has been deprived of fundamental constitutional rights by the executive
branch of government, jurisdiction flows from the Constitution. However, the law
is clear–“the Constitution does not waive the Government’s sovereign immunity in
a suit for damages.” Garcia v. United States, 666 F.2d 960, 966 (5th Cir. 1982).
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Waiver, if it exists at all, must be explicitly authorized by the statute giving rise to
the cause of action. Id. Neither Bivens nor Eisentrager expanded the scope of
jurisdiction in cases where the federal government is the defendant.
Further, the fact that Harbert alleges he is seeking only a declaratory
judgment and no money damages is inconsequential. As the district court
correctly held, the Declaratory Judgment Act does not establish an independent
basis for federal jurisdiction. Seibert v. Baptist, 594 F.2d 423, 428 (5th Cir. 1979).
Thus, none of the arguments that Harbert has advanced support his position that
the mere assertion of constitutional claims invokes the district court’s subject
matter jurisdiction. The record demonstrates that Harbert simply voluntarily
undertook the obligation to guarantee Bilhar’s criminal fine and now he challenges
the very action that he voluntarily undertook.
B. APA
Harbert also argues that the district court properly had subject matter
jurisdiction because the APA, 5 U.S.C. § 702, which he argues is applicable to his
claims, waives the federal government’s sovereign immunity. We first note that
this argument was not made before the district court. Harbert concedes that,
however, he argues because federal courts have an independent obligation to
determine whether subject matter jurisdiction exists, we should nonetheless
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consider his argument. Even if we consider Harbert’s argument on the merits, he
loses.
The APA permits judicial review of “final agency action.” 5 U.S.C. § 704.
Agency action is considered “final” when: (1) the action marks “the
‘consummation’ of the agency’s decisionmaking process;” or (2) the action is one
by which “‘rights or obligations have been determined,’ or from which ‘legal
consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S. Ct.
1154, 1168, 187 L. Ed. 2d 281 (1997) (citations omitted). Harbert argues that by
instituting a policy regarding the use of informal guarantee letters, obtaining the
guarantee from him and attempting to enforce the guarantee, the Department of
Justice has taken “final action” which gives rise to severe legal consequences. We
agree with the Government, however, that Harbert has failed to prove that the acts
complained of constituted “final agency action” because the action that Harbert
challenges is not the Government’s plea offer (inclusive of the guarantee), but
Harbert’s decision to sign the guarantee agreement in conjunction with Bilhar’s
plea agreement. Harbert was not himself subject to any criminal action. The
Government did not and certainly could not have required Harbert to sign the
guarantee without his consent. Thus, although there are legal obligations that flow
from Harbert’s signing the guarantee, those obligations are the result of Harbert’s
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voluntary actions, not the result of any binding agency action and, therefore, are
not the kind of legal obligations with which the finality doctrine is concerned.
Finally, we find the case of Vander Zee v. Reno, 73 F.3d 1365 (5th Cir.
1996), persuasive. In Reno, the district court dismissed the Plaintiff’s APA claims
because it held that the agreement was a settlement decision, within the exclusive
discretion of the Department of Justice. Id. at 1368. On appeal, the Fifth Circuit
refused to decide whether the settlement authority of the Department of Justice
was as far reaching as the district court held, but dismissed the Plaintiff’s claims
on other grounds. Id. at 1371-72. Given that the settlement agreement was not
effective until after it had been approved by the district court, the Fifth Circuit
held that the plaintiff had not sought relief from “agency action,” but instead
sought to collaterally attack the district court’s approval of the settlement. Id. at
1372. Like Reno, the plea agreement here did not become effective and binding
until approved by order of the court. Thus, we conclude that Harbert seeks
declaratory relief, not from agency action, but seeks to collaterally attack the
district court order approving the terms of the plea agreement. Thus, the “final”
agency action was the approval of the plea agreement and for purposes of the
APA, a district court order cannot constitute final agency action.
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C. Realignment of Parties
We can summarily dispose of Harbert’s contention that the parties should be
realigned. Because the Government and Harbert do not have the same ultimate
interest, we conclude that they are properly aligned.
D. Access to the Courts
Harbert argues that because he was not a party to the Bilhar Plea Agreement
or to the criminal action and was unable to seek judicial review of the guarantee
agreement through direct appeal, habeas corpus, or coram nobis, he was denied
access to the courts. Harbert fails to cite any authority for his position. The
Government argues that Harbert has failed to allege a colorable access claim
because his claim does not fall within the category of claims recognized by the
Supreme Court.
Access to court claims generally fall into two categories: (1) claims that
“systemic official action frustrates a plaintiff or plaintiff class in preparing and
filing suits at the present time,” Christopher v. Harbury, 536 U.S. 403, 413
(2002), and (2) claims that a specific case cannot now be tried because official
action “caused the loss or inadequate settlement of a meritorious case,” the loss of
an opportunity to file suit or “the loss of an opportunity to seek some particular
order of relief.” Id. at 413-14. In effect, the “official action” that Harbert
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complains of is the Government’s failure to indict him and make him a party to the
criminal action so that Harbert could appeal the validity of the plea agreement.
Harbert cannot base his access claim on official action that was clearly within the
discretion of the Government. Moreover, given that Harbert was not a party to the
criminal action, he does not have a cognizable underlying claim in the form of an
appeal, habeas, or coram nobis petition that is being frustrated. In sum, we
conclude that Harbert’s claims simply do not fit into a category of cognizable
access claims.
E. Remand for Development of Fact Record
Because of our foregoing discussion, there is no basis to remand this case to
the district court because jurisdiction does not turn on any factual dispute. The
district court dismissed Harbert’s claims based purely upon a question of law – the
Government’s sovereign immunity.
For the above-stated reasons, we conclude that the Government has not
waived its sovereign immunity. Accordingly, we affirm the district court’s
judgment of dismissal.
AFFIRMED.
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