Has Greenspan broken the law?:
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 11th day of May one thousand nine hundred and ninety-eight.
PRESENT:
Hon. John M. Walker, Jr.,
Hon. Dennis Jacobs,
Circuit Judges,
Hon. Carol Bagley Amon, 1
District Judge.
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DAVID F. MAUNSELL,
Plaintiff-Appellant,
v.
97-6131
ALAN GREENSPAN, Chairman of the Board of
Governors of the United States Federal
Reserve Systems, VERMONT FEDERAL BANK, FSB,
Defendants-Appellees.
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APPEARING FOR APPELLANT: David Maunsell, pro se, Hardwick, Vermont.
APPEARING FOR APPELLEES: Christopher B. Baril, Assistant U.S. Attorney, Rutland, Vermont, for defendant-appellee Greenspan
Martin K. Miller, Esq. (Miller, Eggleston & Cramer), Burlington, Vermont, for defendant-appellee Vermont Federal Bank
Appeal from the United States District Court for the District of Vermont.
This cause came on to be heard on the transcript of record from the United States District Court for the District of Vermont (Sessions, J.), and was argued.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Plaintiff-appellant David F. Maunsell appeals from the May 6, 1997, judgment of the district court granting defendant-appellee Alan Greenspan's motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and defendant-appellee Vermont Federal Bank's (the "Bank") motion for judgment on the pleadings. Maunsell's complaint alleged that Greenspan and the Bank violated his constitutional rights by retaining materials Maunsell had submitted to the Bank as part of a loan application for more than two years without his consent.
We review the district court's dismissal of a claim under Fed. R. Civ. P. 12(b)(6) and 12(c) de novo, taking all well-pled factual allegations as true and drawing all reasonable inferences in the plaintiff's favor. See Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice. Leeds, 85 F.3d at 53.
Maunsell's allegations can be construed as a Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking to hold Greenspan personally liable for the allegedly unconstitutional conduct of enforcing 12 C.F.R. õ 202.12(b)(1), the regulation relied upon by the Bank in retaining Maunsell's materials. Section 202.12 provides, in relevant part, that for 25 months after a bank acts on a loan application, the bank shall retain
in original form or a copy thereof: (i) any application that it receives, any information required to be obtained concerning characteristics of the applicant to monitor compliance with the act and this regulation or other similar law, and any other written or recorded information used in evaluating the application and not returned to the applicant at the applicant's request.
The district court properly determined that Greenspan is entitled to qualified immunity from Maunsell's Bivens claim because no reasonable person could foresee a constitutional violation based upon a regulation that permits a bank to retain, or to return at the applicant's request, voluntarily submitted documents. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights"); Anderson v. Creighton, 483 U.S. 635, 641 (1987) (qualified immunity is lost only if it was "objectively legally unreasonable" for the officials to have believed their actions did not violate those rights).
Maunsell claims that the regulation "led directly to the illegal holding of the plaintiff's private papers for an illegal purpose, search without warrant." Maunsell's Br. at 8. The purpose of the regulation, however, is not to provide a means of circumventing the Fourth Amendment but rather to ensure that financial institutions are not discriminating against credit applicants. See 15 U.S.C. õ 1691; 12 C.F.R. õ 202.1. Greenspan was entitled to believe that the regulation was within the scope of his authority because it is rationally related to the purpose of the Equal Credit Opportunity Act. See, e.g., Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369-70 (1973) (finding Truth in Lending Act regulation was valid because it was reasonably related to purposes of the Act). Even if Greenspan exceeded his authority, however, Maunsell's complaint was properly dismissed because a complaint "containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citation and internal quotation marks omitted).
To the extent Maunsell's complaint sounds in tort, he is precluded from bringing this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. õ 2671 et seq., because he has not demonstrated, nor even alleged, exhaustion of his administrative remedies. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.").
Maunsell also cannot prevail on his allegations of constitutional violations by the Bank because the Bank is not a government entity and was not engaged in government action. See, e.g., United States v. Jacobsen, 466 U.S. 109, 113 (1984) (Fourth Amendment applies only to government action, not action of private individuals). Although the Bank acted pursuant to a federal regulation when it refused to return Maunsell's documents, this fact does not transform the Bank into a government actor. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (indicating that a regulated entity's activity is state action only where the state "exercised coercive power" over or provided "significant encouragement" to the regulated entity). Here, the necessary prerequisites for a finding of state action are absent because regulation 202.12(b) authorized the Bank to either retain or return the materials submitted by Maunsell; it did not coerce or "significantly encourage" the Bank to retain the materials despite Maunsell's request that they be returned.
Even if compliance with the regulation did transform the Bank into a state actor, we find that the fact that Maunsell voluntarily provided his materials to the Bank in the course of a loan application precludes any possible claim under the Fourth Amendment's protection against illegal searches and seizures. Similarly, Maunsell has no claim under the Fifth Amendment for due process deprivation because the Bank not only complied with the applicable law, but also informed Maunsell of the statutory basis for its actions. Finally, the Bank's compliance with the regulation precludes any claim for violating that regulation. Accordingly, there is no basis for reversing the district court's conclusion that Maunsell had no federal claims against the Bank.
Finally, the district court acted within its discretion in declining to exercise jurisdiction over any state claims Maunsell alleged for negligence or other torts, since Maunsell's federal claims were dismissed early in the proceedings. 28 U.S.C. õ 1367(c)(3).
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
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1 The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. |
