Professional Documents
Culture Documents
15-20245
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
STEVEN CRAIG PATTY,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
_______________________________________________________________
On Appeal from the United States District Court
for the Southern District of Texas (Houston Division)
The Honorable Lee H. Rosenthal
D.C. No. 4:13-cv-03173-LHR
_______________________________________________________________
APPELLANTS BRIEF
_______________________________________________________________
Respectfully submitted,
Arnold Anderson Vickery
Fred H. Shepherd
THE VICKERY LAW FIRM
10000 Memorial Dr., Suite 750
Houston, TX 77024-3485
Telephone: 713-526-1100
Facsimile: 713-523-5939
Counsel for Plaintiff-Appellant
ORAL ARGUMENT REQUESTED
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With great respect for this Court, we do not use this word lightly. As the Court
will see, the facts of this case could rightly be labeled outrageous with respect to
the trampling of a private citizens fundamental rights.
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Table of Contents
Certificate of Interested Parties................................................................................. ii
Statement Regarding Oral Argument....................................................................... iii
Index of Authorities. ................................................................................................ vi
Introductory Note Regarding References to the Record. .......................................... 1
Jurisdictional Statement. ........................................................................................... 1
Issues on Appeal. ...................................................................................................... 1
Statement of the Case................................................................................................ 1
Statement of the Facts. .............................................................................................. 1
Course of Proceedings and Disposition Below......................................................... 5
Summary of the Argument........................................................................................ 6
Scope of Review. ...................................................................................................... 7
Argument and Authorities......................................................................................... 7
I.
B.
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II.
CONCLUSION....................................................................................................... 18
Certificate of Service. ............................................................................................. 19
Certificate of Compliance. ...................................................................................... 20
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Page(s)
Page (s)
Page (s)
28 U.S.C. 1291....................................................................................................... 1
28 U.S.C. 1346(b). ................................................................................................. 1
28 U.S.C.A. 2674................................................................................................. 14
28 U.S.C.A. 2679................................................................................................... 9
28 U.S.C.A. 2680........................................................................................... 15, 16
Constitutions
Page(s)
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owner about its whereabouts and its use. 3 More troubling, although the Officer
knew if were going to use somebody elses vehicle, we have to have
permission, he was just unaware of the actual formal DEA policy or procedure
requiring the Government to obtain permission from the true owner of private
property before using it for Governmental purposes. ROA.719-20. It is not
something that [we] normally, typically do[es] despite hav[ing] to have
permission. Id.
Moreover, because the agents involved in this specific operation were well
aware of the license plate number of the truck (ROA.768), the Officer conceded
the DEA could readily have obtained true ownership information and permission,
if they chose to do so. ROA.715-16. Neither he nor the DEA made any effort to
determine or contact the true owner. Id. at ROA.710-12. They did not because the
officers involved didnt see the necessity of it. Id. at ROA.729. Yet, the officer
also readily admits the truck was used purposefully for governmental purposes and
government benefit and damaged as a result. ROA.730, 751-52.
In the end, the controlled-delivery went horribly wrong. The driver and the
truck were both ambushed and shot. The driver was killed. One law enforcement
3
Patty's driver told [the HPD Officer] that he had contract work that would put
him in the vicinity of Rio Grande City, Texas, and that he would tell the owner
of the tractor-trailer that he was leasing[ ] that he had planned to spend
Thanksgiving in Houston and knew of an inexpensive repair shop in Houston
where he could take the truck for routine maintenance and needed repairs. Patty,
2015 WL 1893584, at 1 (emphasis added).
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officer shot another undercover law enforcement officer by mistake. Pattys truck
was substantially damaged and taken out of service. Patty, 2015 WL 1893584, at
2.
To make matters worse, because of the nature of the damages, Pattys
insurance company refused to repair the truck. Id. Patty was ultimately forced to
take an early withdrawal from his 401k to effectuate repairs. Id. He incurred
significant economic damages for the damages his truck sustained and the penalties
of early withdrawal.
ROA.186.
palpitations. He was diagnosed with an anxiety disorder and depression and was
prescribed prescription medications to treat them.
marriage and resulted in divorce. ROA.771-77 and 778-79.4 This private citizen
who was simply trying to earn an honest living was taken advantage of and left
with the shattered remains of a life that was fundamentally altered both
emotionally and financially all because the DEA decided its law enforcement
mission was more important than protecting his rights. This is patently unjust and
unfair.
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THE
GOVERNMENTS
CONDUCT
UNCONSTITUTIONAL TAKING.
CONSTITUTED
AN
government itself, the waiver is contained in the FTCA. Craig Patty asserted his
pro se administrative claims in accordance with the FTCA, and, in section II, infra,
we explain how the district courts construction of this exception to the rule of
waiver essentially ignores congressional intent and swallows the FTCA waiver in
the process.
Compensable. The Fifth Amendment provides that private property may not be
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taken for public use, without just compensation. U.S.Const., amend. V. The
Supreme Court has decided almost 500 cases involving this constitutional
limitation on the national governments power and this Court has, of course,
decided many more. The cases usually involve one of two questions: (a) what
constitutes a taking and (b) what is just compensation.
The most recent decision from the Supreme Court is Chief Justice Roberts
June 22, 2015, opinion in Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015) which
squarely held that a taking includes, not only appropriation of real property, but
also the governments physical appropriation of personal property, which the
High Court brands as a per se taking, without regard to other factors. Id. at 2427
(emphasis added). 5 The scholarly opinion shows that the Takings Clause has roots
as far back as the Magna Carta, and that, in this country, it was undoubtedly
included in the Constitution because of the abusive practices of the military during
the Revolutionary War of commandeering horses and carriages for military use.
Id. at 2426.
With regard to the putative distinction between real and personal property,
the Chief Judges opinion summed it up as follows:
In spite of the fact that the Fifth Amendment limitation was contained in Pattys
pleadings and mentioned in his summary judgment response, the lower court held
that the issue had been waived for failing to include more fulsome briefing. The
existence and significance of this subsequent Supreme Court authority directly on
point militates against the waiver finding.
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that is taken constitutes an entire parcel or merely a part thereof. Horne, supra,
135 S. Ct. at 2429.
Horne is hardly new law in this regard. Three years prior, in Arkansas
Game & Fish Comm'n v. United States, 133 S. Ct. 511, 515, 184 L. Ed. 2d 417
(2012), the Supreme Court held that this Court's decisions confirm, if government
action would qualify as a taking when permanently continued, temporary actions
of the same character may also qualify as a taking. Id. That decision, too, had
been presaged by an earlier opinion. Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982).
B.
to be Determined by a Jury.
Justice
capable of transfer from owner to owner. 338 U.S. at 5-6. One might argue that
this objective, economic standard of just compensation would seem to preclude
an award of subjective, non-economic damages specific to Craig Patty, even if they
are foreseeable.
However, later case law acknowledges that the question of just
compensation under the Fifth Amendment can also involve careful considerations
of the non-economic benefits of private property ownership. See e.g., Lucas v. S.
Carolina Coastal Council, 505 U.S. 1003, 1019n.8 (1992).7
Moreover, a later opinion from the Supreme Court squarely establishes that
there is a Seventh Amendment right to jury trial in a constitutional takings case and
that the disputed questions [of] whether the government had denied a
constitutional right in acting outside the bounds of its authority, and, if so, the
extent of any resulting damages are questions for the jury. City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 722 (1999)(emphasis added).
As that case explained, an unconstitutional taking is, in essence, tortious in nature.
Though our prior takings cases evince an abiding concern for the productive use
of, and economic investment in, land, there are plainly a number of noneconomic
interests in land whose impairment will invite exceedingly close scrutiny under the
Takings Clause. Id. citing Loretto, 458 U.S. at 436 (interest in excluding
strangers from ones land). In Loretto, the High Court acknowledged that,
temporary takings were invariably situations in which the damages constituting
just compensation included consequential damages.
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II.
clear: The United States shall be liable . . . in the same manner and to the same
extent as a private individual under like circumstances. 28 U.S.C.A. 2674. See
Richards v. United States, 369 U.S. 1, 6 (1962)(The FTCA was designed
primarily to remove the sovereign immunity of the United States from suits in
tort.) Liability under the FTCA extends to all common law torts, including both
negligence and conversion. See e.g., Levin v. United States, 133 S. Ct. 1224, 1231
(2013).
There is no dispute about the fact that any private individual who simply
takes, without permission, another persons truck without their knowledge or
consent would be liable for all damages proximately resulting therefrom. There
is also no dispute in this case that the Government took Pattys truck for its own
purposes and did not have his consent to do so. ROA.710-12, 730, 751-52.
But there is an exception to the rule of waiver. In a different section of the
FTCA Congress provides that the Act shall not extend to any claim based upon
the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
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conduct is not confined to the policy or planning level. [I]t is the nature of the
conduct, rather than the status of the actor, that governs whether the discretionary
function exception applies in a given case. Id. at 325. Nonetheless, as this Court
has subsequently held, for the discretionary function exception to apply, there
must be (a) an element of choice or discretion that is (b) subject to a legitimate
policy analysis.
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court noted that there was no formal policy, regulation or statute that required
[the HPD officer] to obtain Pattys consent prior to using his truck. But there is
such a policy. It is deputized in the Fifth Amendment itself and in the direction
given to the HPD officer who decided he did not have to follow what he knew
existed. And nobody, law enforcement officer or not, has the discretion to violate
the Constitution.
Conclusion
The policy of our government is stated unequivocally in the Constitution
itself.
property without either due process or just compensation. Or, as stated more
poignantly by Chief Justice Roberts, [t]he Government has a categorical duty to
pay just compensation when it takes your car. Horne, 135 S. Ct. at 2426
emphasis added). The DEA did not take Craig Pattys car. It took his truck.
Therefore, whether the claim is analyzed as a direct claim under the Fifth
Amendment, or a statutory claim under the FTCA, the summary judgment in this
case is erroneous, patently unjust, and unfair, and the decision of the court below
should be reversed, rendered as to liability, and remanded for a trial to determine
damages.
//
//
//
//
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Respectfully submitted,
THE VICKERY LAW FIRM
/s/ Arnold Anderson Vickery
Arnold Anderson Vickery
Texas Bar No. 20571800
Email: andy@justiceseekers.com
Fred H. Shepherd
Texas Bar No. 24033056
Email: fred@justiceseekers.com
10000 Memorial Dr., Suite 750
Houston, TX 77024-3485
Telephone: 713-526-1100
Facsimile: 713-523-5939
Counsel for Appellants
Certificate of Service
I certify that on the 7th day of August, 2015, Appellants Brief was
electronically filed with the Clerk using the CM/ECF system, which automatically
sent email notifications of such filing to the following attorneys of record:
Steve I. Frank, Esq.
Fred T. Hinrichs, Esq.
U.S. Attorneys Office
1000 Louisiana St., Suite 2300
Houston, Texas 77002
Counsel for Defendant-Appellee
/s/ Arnold Anderson Vickery
Arnold Anderson Vickery
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Certificate of Compliance
As required by FED. R. APP. P. 32(a)(7)(c), I certify that Appellants brief
has been prepared in proportionally spaced typeface in Times New Roman 14
using Microsoft Word 2010 and the total word count is 4,204. I certify that the
information on this form is true and correct to the best of my knowledge and belief
formed after a reasonable inquiry.
/s/ Arnold Anderson Vickery
Arnold Anderson Vickery
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