* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-41280

Summary Calendar

_______________

ROBERT FOGLIA,

Plaintiff-Appellant,

VERSUS

MICHAEL N. MILBY, District Clerk,

Clerk of the United States District Court

for the Southern District of Texas;

and

UNITED STATES OF AMERICA,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(B-95-CV-85)

_________________________

November 11, 1997

REVISED OPINION

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The appellant's motion for clarification is GRANTED. The
1 The other defendant has absconded from authorities.

2

opinion issued on September 8, 1997, is hereby VACATED, and the

following opinion is substituted, for the purpose of changing the

analysis in part II.C.:

Robert Foglia appeals a dismissal of his claims brought

pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401,

et seq. Finding no error, we affirm. 

I.

This action arises out of attorney Foglia’s 1983

representation of two criminal defendants in the Southern District

of Texas. Foglia posted bail in the amount of $50,000 for one of

the defendants and $25,000 for the other. His co-counsel, Sheldon

Weisfeld, posted the remaining $25,000 for the latter defendant. 

In November 1983, the United States Department of Treasury

gave notice to the Clerk of the Southern District that, pursuant to

the Trading with the Enemy Act (“TWEA”), 50 U.S.C. App. § 1,

et seq., the bail monies were being blocked as Cuban assets. In

April 1984, Foglia filed a motion for return of the $25,000 that he

had posted for one of the defendants.1 In June 1984, Foglia sought

and was granted a stay of the proceedings pending his efforts to

obtain relief through administrative channels, as required by TWEA.

In the meantime, Weisfeld filed a separate civil action
3

seeking return of his bail monies. After exhausting his

administrative remedies, Weisfeld proceeded to trial in August

1989, whereupon the district court held that the blocking order was

void and ordered release of the funds plus interest.

Notwithstanding his original filing of a motion for return of

the $25,000 bail in 1984, Foglia waited until November 1994 to file

a notice of claim with the Administrative Office of the United

States Courts (“AO”) seeking back interest since December 1983.

Although the claim for back interest was denied by the AO, Foglia

did receive his $25,000 principal plus interest earned from January

1995 through the date of release of the funds.

In June 1995, Foglia filed the instant action pursuant to the

FTCA, alleging that the District Clerk negligently had failed to

follow federal regulations that require the deposit in an interestbearing account of all monies blocked under the TWEA. The district

court dismissed Foglia’s complaint, finding that it was barred by

the FTCA’s two-year statute of limitations and that the United

States had not waived sovereign immunity with respect to the

alleged negligent acts.

II.

We review de novo the grant of a motion to dismiss pursuant to

FED. R. CIV. P. 12(b)(1) and (6). See Federal Deposit Ins. Corp. v.

Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992). Thus, we stand
4

in the same shoes as the district court in deciding the issue.

A.

Foglia argues that he has stated a claim under the FTCA

because his cause of action for back interest is cognizable as a

conversion claim under Texas law. Although he is correct that the

FTCA waives sovereign immunity “where the United States, if a

private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred,” 28 U.S.C.

1346(b), the FTCA expressly excepts from its waiver of immunity

claims “arising out of an act or omission of any employee of the

Government in administering the provisions of [the Trading with the

Enemy Act].” 28 U.S.C. § 2680(e). See Price v. United States, 69

F.3d 46, 52-53 (5th Cir. 1995), modified on other grounds, 81 F.3d

520 (5th Cir. 1996). Because Foglia’s claim for back interest

arises out of the Clerk’s alleged failure to place his bail monies

in an interest-bearing account, as required by the TWEA,

jurisdiction does not lie under the FTCA.

Foglia acknowledges the § 2680(e) exception but argues that

because the Clerk did not “administer[]” the provisions of the

TWEA, it is inapposite. According to Foglia, “administering”

requires that an individual use his discretion. He contends that

because the Clerk was required by TWEA regulations to place the

bail money in an interest-bearing account, no such discretion was
2 That Foglia fashions his claim under the FTCA as one of conversion under

Texas state law does not provide an end-run around the § 2680(e) exception from

the limited waiver of sovereign immunity. The underlying facts that comprise the

alleged conversionSSthe Clerk’s failure to place the funds in an interest-bearing

account as he was required to do by TWEA regulationsSSare those for which the

§ 2680(e) exception reinstates immunity for the sovereign.

5

involved.

We do not dispute that “administering” may have such a

connotation under certain circumstances, but we note that the term

also encompasses the non-discretionary acts of executing or

enforcing (or omitting to do the same). Cf. WEBSTER’S THIRD

INTERNATIONAL DICTIONARY 27 (1986). Furthermore, in light of both our

strict construction of the sovereign’s limited waiver of immunity,

see Wilkerson v. United States, 67 F.3d 112, 118 (5th Cir. 1995),

and our prior recognition that the FTCA was not intended to redress

breaches of federal statutes or regulations standing alone, see

Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc), we

adopt the term’s broader definition and affirm.2

B.

Foglia next argues that the district court erred in failing to

construe his FTCA claim as cognizable under Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971). Foglia contends that the

Department of the Treasury deprived him of property without due

process by failing to follow the TWEA regulations that required

depositing the blocked funds in an interest-bearing account.

Foglia does not dispute that negligent deprivations of
6

property do not give rise to constitutional violations, see

Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995),

but insists that his underlying claim of conversion is an

intentional tort. Not only do we disagree that under Texas law

conversion requires intentional conduct, see Lone Star Ford v.

Hill, 879 S.W.2d 116, 122 (Tex. App.SSHouston [14th Dist.] 1994, no

writ), but, even assuming arguendo that such is the case, we note

that Foglia’s complaint speaks of negligent conduct only. Given

that the plaintiff is the “master” of his complaint, see Rivet v.

Regions Bank, 108 F.3d 576, 583 (5th Cir. 1997), petition for cert.

filed, 65 U.S.L.W. 3839 (U.S. June 11, 1997) (No. 96-1971), Foglia

has failed to allege conduct that would give rise to a Bivens

claim.

C.

Foglia asserts that the district court erred in failing to

transfer this action to the United States Court of Federal Claims

to be prosecuted as a claim arising under the Tucker Act, 28 U.S.C.

§ 1346. In his motion filed two weeks after the magistrate judge

had recommended that the FTCA action be dismissed, Foglia moved to

have this action transferred to the Court of Federal Claims; the

district court took no specific action on the motion.

In his complaint, Foglia stated that “[t]he current action is

one for the recovery of damages under the Federal Tort Claims Act.”
7

The statute conferring jurisdiction on that court, however,

specifically excludes “cases . . . sounding in tort.” 28 U.S.C.

§ 1491(a)(1). The complaint mentions no claim that could be

considered by the Court of Federal Claims. Accordingly, if we deem

the district court impliedly to have denied the motion for

transfer, there is no error in that decision.

AFFIRMED.