* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 17 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

In re: JAY H. PETERSON,

Debtor.

JAY H. PETERSON,

Plaintiff-Appellant, and SANDRA LOPEZ,

Plaintiff,

v. FEDERAL TRADE COMMISSION; MIKE MARTIN; DEBORAH MARTIN, Defendants-Appellees. No. 99-4243 (D.C. No. 98-CV-709) (D. Utah)

ORDER AND JUDGMENT *1 The notice of appeal was signed by Mr. Peterson (pr o se), but not by Sandra

Lopez. “We therefore refer only to [Mr. Peterson,] although our decision would be the same even if [Ms. Lopez] had appealed.” Duncan v. Gunter , 15 F.3d 989, 990 n.1 (10th Cir. 1994); see 10th Cir. R. 3.1. -2- Before KELLY , BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Debtor-plaintiff Jay Peterson appeals from a distri ct court order dismissing these consolidated adversary proceedings. 1 We affirm, primarily for the reasons stated by the district court, with minor difference s in rationale noted below. In May 1993, the Federal Trade Commission (FTC) com menced an action against Mr. Peterson and several corporations alleg ing deceptive trade practices. The FTC secured appointment of an equity receiver t o manage corporate assets and, in August 1995, a settlement agreement was exe cuted encompassing the FTC’s claims and those of various other parties. Shortly after the FTC action commenced, Mr. Peterso n personally filed for bankruptcy. On November 29, 1995, the bankruptcy c ourt confirmed his Second Amended Plan of Reorganization. While the plan acc ommodated the settlement-3-

agreement in the FTC case in various ways, it was adistinct structuring of assets and debts specific to Mr. Peterson. And, though ce rtain potential claims available against Mr. Peterson were deemed satisfied by virtu e of the FTC settlement, the “receivership estate” and “bankruptcy estate” were nevertheless distinct entities. In August 1998 and January 1999, Mr. Peterson filedtwo adversary complaints (the second adding one claim to the firs t) in his bankruptcy case. These asserted claims against an ex-employee and he r husband (the Martins) for embezzlement and other wrongdoing allegedly prompti ng financial problems leading to the FTC enforcement action and Mr. Peter son’s bankruptcy. They alleged FTC employees aided the Martins and, more g enerally, engaged in “submarine receivership” tactics, prompting an asso rtment of claims against the United States under the Federal Tort Claims Act, Fe deral Debt Collection Act, Tucker Act, Privacy Act, Internal Revenue Code, and Utah law. Eventually, the proceedings were consolidated and withdrawn fro m the bankruptcy court. In October 1999, the district court granted defenda nts’ motion to dismiss. The district court disposed of the case on alternat ive grounds. First, it concluded that the claims were not “related to” the Peterson bankruptcy and, therefore, failed to implicate bankruptcy jurisdict ion under 28 U.S.C. § 1334(b). Second, it held that the claims as pled were defici ent in various legal respects and-4-

thus subject to dismissal in any event. We review both of these conclusions de novo. See Dry v. United States , 235 F.3d 1249, 1252 (10th Cir. 2000). The district court appropriately applied a strict t est for § 1334(b) “related to” jurisdiction, looking to the proceeding’s pract ical effect on implementation of the confirmed reorganization plan, rather than to i ts conceivable effect on the bankruptcy estate. See Zahn Assoc., Inc. v. Leeds Bldg. Prods., Inc. (In r e Leeds Bldg. Prods., Inc.) , 160 B.R. 689, 691 (Bankr. N.D. Ga. 1993). See generally Norman Kinel and Melissa Neier, Post-Confirmation Jurisdiction in the Bankruptcy Courts: Does It Ever End? , 55 Bus. Law. 81 (1999). Any impact on the implementation of Mr. Peterson’s plan is simply too remote a contingency to support bankruptcy jurisdiction under § 1334(b). That is not the end of the matter, as the district court could rely on other, non-bankruptcy bases for federal jurisdiction, at l east where they were explicitly invoked in the pleadings. See, e.g. , Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.) , 910 F.2d 784, 789 (11th Cir. 1990); In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1187-89 (7th Cir. 1986); Cf. Maislin Indus., U.S., Inc. v. C.J. Van Houten E Zoon, Inc. (In re Maislin Indus., U.S., Inc.) , 66 B.R. 614, 617 (E.D. Mich. 1986). Mr. Peterson invoked several gr ounds for extra-bankruptcy jurisdiction in his pleadings. As noted above, the district court’s order includes an alternative disposition of the claims involved.2 The exception concerns allegations regarding ex parte contact with a

magistrate judge, which the court held were not act ionable in light of judicial immunity. Mr. Peterson has not challenged that particular ruling on appeal. -5- The district court held that, with one exception not pertinent here, 2 the FTCA claim was time-barred under the Act’s two-yearlimitations provision. We agree that the provision applied to bar Mr. Pete rson’s FTCA claims, and hold that his attempt to invoke equitable tolling f alls far short of the necessary grounds, see Perez v. United States , 167 F.3d 913, 917 (5th Cir. 1999) (following Irwin v. Dep’t of Veterans Affairs , 498 U.S. 89, 96 (1990)). The district court similarly held the Privacy Act c laim barred under the two-year statute of limitations in 5 U.S.C. § 552a( g)(5). We agree and note that, to the extent Mr. Peterson’s general discussion of equitable tolling is intended to apply, it avails him no more here than under the FT CA. The same is true of his claim under the Internal Revenue Code’s non-disclos ure provision, 26 U.S.C. § 7431, which also has a two-year statute of limitations, § 7431(d). The district court held it lacked jurisdiction overany Tucker Act claim in light of the exclusive grant of jurisdiction to the United States Federal Court of Claims in 28 U.S.C. § 1491. Again, we agree. See, e.g. , Amerada Hess Corp. v. Dep’t of Interior , 170 F.3d 1032, 1035-36 (10th Cir. 1999). Mr. Pet erson now asks for transfer of this claim, but our acquiescen ce in this belated request would not be “in the interest of justice,” 28 U.S.C. § 16 31. After “taking ‘a peek at the-6-

merits,’” we conclude that, in light of both the ti ming of the request and the substance of the underlying claims, a transfer at t his point would entail “wasting judicial resources.” Haugh v. Booker , 210 F.3d 1147, 1150 (10th Cir. 2000) (citations omitted). Mr. Peterson’s Administrative Procedures Act claim fails for various reasons. The most obvious is that his pleadings se ek damages, which are not available under the APA pursuant to 5 U.S.C. § 702. His attempt to circumvent the statute through a perfunctory reference to “res titution” is unavailing.
See California v. United States , 104 F.3d 1086, 1095 (9th Cir. 1997). Finally, the district court dismissed Mr. Peterson’ s state law claims for lack of jurisdiction. Mr. Peterson has failed to c hallenge that ruling on appeal. See generally Franklin Sav. Corp. , 180 F.3d at 1128-29 (potential grounds supporting jurisdiction may be waived like any othe r contention). In sum, Mr. Peterson has failed to show any reversi ble error in the district court’s disposition of the proceedings. To the ext ent any particular arguments he raises on appeal are not addressed explicitly, t hey have been considered by the panel but found to be lacking sufficient merit to warrant express comment.-7-

Accordingly, the judgment of the United States Dist rict Court for the District of Utah is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge