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 1998-02

Armendariz-Mata v. US Dept of Justice ( 1998 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50301
Summary Calendar
CARLOS ARMENDARIZ-MATA,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT ADMINISTRATION; MICHAEL QUINN, DEA SPECIAL
AGENT; ROBERT HERNANDEZ, DEA SPECIAL AGENT; ALFREDO JUAREZ, DEA
AGENT; GUADALUPE GOMEZ-GAMEZ, DEA AGENT,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-94-CV-484
- - - - - - - - - -
February 2, 1998
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Carlos Armendariz-Mata challenges the district court’s
orders (1) denying his motion for leave to file an amended or
supplemental complaint; (2) granting the Government’s motion for
leave to file an amended answer; (3) granting summary judgment in
favor of the Government and directing that a criminal fine
assessed against him, accrued interest on the fine, and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-50301
-2-
transcript costs be paid out of the funds in the registry of the
court; and (4) calculating prejudgment interest at less than 15%.
Armendariz’s motion for leave to file reply brief out of
time is hereby GRANTED.
Armendariz’s amended supplemented complaint amounted to a
reallegation of his Bivens claims against the original defendants
as well as the new ones.    The Bivens claims were dismissed by the
district court and Armendariz did not challenge that dismissal on
appeal.    Armendariz-Mata, 82 F.3d at 682 n. 4.   The dismissal of
those claims therefore became final.     United Indus., Inc. v.
Simon-Hartley, Ltd.,
    91 F.3d 762
    , 764 (5th Cir. 1996).      Like the
other individual defendants, the new defendants would be
protected by qualified immunity, a finding that was not
challenged on appeal.     Armendariz-Mata, 82 F.3d at 682 n. 4; see
also Harlow v. Fitzgerald,
    457 U.S. 800
    , 818 (1982).       In
addition, Armendariz’s claims for monetary relief were barred by
sovereign immunity.     Armendariz-Mata, 82 F.3d at 682.    That
ruling is now the law of the case and cannot be disturbed by this
court.    Burroughs v. FFP Operating Partners, L.P.,
    70 F.3d 31
    , 33
(5th Cir. 1995).
The tort claim Armendariz sought to assert against the
United States is frivolous.    Since Armendariz did not file an
administrative claim within the two-year period prescribed in
§ 2401(b), the district court did not have jurisdiction over this
No. 97-50301
-3-
claim.    See MacMillan v. United States,
    46 F.3d 377
    , 380 n. 3,
381 (5th Cir. 1995).
Regarding the court’s decision to permit the Government to
file an amended answer, Armendariz fails to demonstrate
prejudice, undue delay, bad faith, dilatory motive, or futility,
the factors considered in determining whether an amendment should
have been allowed.     See In re Southmark Corp.,
    88 F.3d 311
    , 314-
15 (5th Cir. 1996), cert. denied,
    117 S. Ct. 686
     (1997); see
also, Fed. R. Civ. P. 13.    The district court did not abuse its
discretion in granting the Government’s motion for leave to amend
its answer.    Id.; Carson v. Polley,
    689 F.2d 562
    , 584 (5th Cir.
1982).    Nor did it err in requiring deposit into the court
registry and payment of claims therefrom.    The competing claims
made that an appropriate order.     See
    18 U.S.C. § 3613
    ; see also,
Auclair v. Sher,
    63 F.3d 407
    , 409-10 and n. 3 (5th Cir. 1995).
Armendariz has submitted no authority to support his
contention that he is entitled to prejudgment interest at a rate
of 15%.    Since there was no legal basis for the payment of
interest to Armendariz, it was an equitable action by the
district court, reviewable only for abuse of discretion.       See
    28 U.S.C. § 2465
    ; Library of Congress v. Shaw,
    478 U.S. 310
    , 314
(1986); Marine Indem. Ins. Co. of America v. Lockwood Warehouse &
Storage,
    115 F.3d 282
    , 287 (5th Cir.), cert. denied,
    118 S. Ct. 414
     (1997).; United States v. $277,000 U.S. Currency, 69 F.3d
No. 97-50301
-4-
1491, 1494-96 (9th Cir. 1995).   Armendariz has failed to show
that the interest calculation was an abuse of discretion.
AFFIRMED.