The Honorable James M. Moody, United States District Judg e 1 for the Eastern District of Arkansas, sitting by designation. United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ Nos. 96-1325/1658

___________ Warren C. Hartje; Jean E. * Hartje; Warren Hartje Sales * Company Employees' Pension * Plan & Trust, * * Plaintiffs/Appellants, * * Philip F. Florence; Audrey K. * Florence; Scott W. Florence; * Appeals from the United States Empire Paper Company Profit * District Court for the Distric t Sharing Trust, * of Minnesota. * Plaintiffs, * * v. * * Federal Trade Commission; * Bennett Rushkoff; United * States of America, * * Defendants/Appellees. *

___________ Submitted: November 21, 1996 Filed: February 13, 1997

___________ Before BEAM and LO KEN, Circuit Judges, and MOODY, District Judge. 1

___________ BEAM, Circuit Judge. Appellants Warren and Jean Hartje and the Hartje Sales Compa ny Employees' Pension Plan (Hartj e plaintiffs) and Philip, Audrey and Scott Florence and the Empire Paper Company Profit Sharing PlanThe Honorable Paul A. Magnuson, Chief Judge, United State s 2 District Court for the District of Minnesota. -2- (F lorence plaintiffs) appeal the district court's dismissal o f 2 th eir actions against the United States, the Federal Trad e Commission(FTC), and Bennett Rushkoff, counsel for the FTC. W e affirm.

I. BACKGROUND
Th e Hartje and Florence plaintiffs invested money in rar e coins so ld by T. G. Morgan, Inc. (TGM). Michael Blodgett, TGM' s chief executive officer, personally made the coin sales to th e plaintiffs. Blodgett, however , was in the habit of selling single coins to multiple customers, g reatly overstating the value of such coins, and using coins he had already sold as collateral to obtain loans for his personal use. In connection with these and othe r coin sales, Blodgett was event ually convicted of twenty-two counts of fraud. In response to these fraudulent actions, the FTC initiated a civil enforcement action against TGM and Blodgett. A temporar y restraining order (TRO) was later entered in federal distric t court, freezing the assets of TGM. A consent order, prohibitin g TGM and Blodgett from further selling or purchasing coins without cou rt approval, followed the TRO. The district court the n appoin tedArmen R. Vartian as interim receiver to handle th e disposition of TGM's assets. Vartian was given control over TGM's property and was charged with liquidating the assets to cover the attorney fees of TGM and Blodgett and to defray Blodgett's living expens es. The district court also instructed Vartian to retur n coins to bona fide owners with uncontested ownership claims and to consider and document contested ownership claims. The receiver liquidated many coins from TGM's collection, so me of which allegedly belonged to the Hartje and Florence plaintiffs.-3-

Pla intiffs claim they received no notice of the coin liquidatio n an dthat the FTC and its counsel Rushkoff knew, or should hav e known, of the existence of their ownership claims. Plaintiff s further assert that once they notified the FTC about their claims, the FTC and Rushkoff informed the receiver that such claims wer e meritless and that liquidation should continue. According to the plaintiffs, this advice amount s to illegal interference with their property rights.
Init ially, plaintiffs tried to intervene in the FT C enforcement action. Their motion was denied as untimely. The y then sued the receiver in fede ral district court. That action was dismissed based on official immunity. In addition, plaintif fs have been involved in TGM's bankruptcy proceedings. Still displeased, plaintiffs brought actions against the United States, the FTC and Rushkoff under the Employee Retirement Income Security Act ( ERISA), the Federal Tort Claims Act (FTCA), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Th e district court dismissed the actions for failure to state a claim up onwhich relief could be granted. Fed. R. Civ. P. 12(b)(6)
. Pla intiffs appeal only the dismissal of their FTCA and Biven s actions. We affirm.

II. DISCUSSION
The plaintiffs assert numerous claims against the Unite d Sta tes under the FTCA, alleging, among other things, that th e UnitedStates: (1) deprived them of their property without du e pr ocess or adequate compensation in violation of the Minnesot a Constitution; (2) illegally in terfered with their property rights; and (3) negligently failed to supervise the receiver or requ ire the receiver to be bonded. By waiving sovereign immunity for certain injuries and losse s, the FTCA provides a remedy for torts committed by federal of ficers. 28 U.S.C. § 1346(b). However, the discretionary function ex ception-4-

to the FTCA prohibits the maintenance of claims which are "base d uponthe exercise or performance or the failure to exercise o r perform a discretionary function or duty on the part of a federal agencyor an employee of the Government, whether or not th e discretioninvolved be abused." 28 U.S.C. § 2680(a). Se e Berkovitz v. United States , 486 U.S. 531, 535 (1988). Thi s exception shields the United States from liability in this case.

Th e district court correctly found that Rushkoff wa s per forming a discretionary function while conducting the FT C enforcement action in his position as FTC Counsel. This findin g encompassedRushkoff's actions in advising the receiver as t o specific ownership claims. As the district court stated: Making judgments and recommend ations about potential TGM customer claims was within [Rushkoff's] role as FT C Counsel. The possibility that Rushkoff's recommendation s to the receiver were mistaken does not take his actions to the level of an unconstitutional taking or denial of due process, nor does it remove them from th e discretionary function exception. Hartje v. FTC , No. 3-94-1288, mem. order at 10 (D. Minn Dec. 4 , 1995).
Furthermore, the decision-making responsibility in the coi n liquidation activities of which plaintiffs complain rested w ith the receiver and not with the FTC or Rushkoff. The receiver, in turn, was appointed by the district court and was not responsible t o either the FTC or Rushkoff. Consequently, plaintiffs' theor ies for imposing liability on the United States simply do not fit th e facts of this case or the framework of the FTCA.
Plaint iffs' real dispute is with the receiver's handling o f their ownership claims. Plaintiffs had an opportunity to re ach the receiver in their prior district court action. Additionally , pla intiffs had the chance to intervene in the enforcement actio n and have been involved in the bankruptcy action. Plaintiffs' lack-5-

of suc cess in other actions simply does not justify imposin g liability on the defendants in the present suit.
In their Bivens action, plaint iffs argue that the liquidation proce edings operated as an unconstitutional taking of thei r pro pertywithout adequate compensation and a denial of their du e process rights under the Fifth Amendment. A Bivens action, which provides a cause of action for a constitutional violation, is only available against federal officers, not government entities
. Bivens , 403 U.S. at 397. Ther efore, the United States and the FTC are not proper Bivens defendants because of sovereign immunity
. Phelps v. U.S. Fed. Gov't , 15 F.3d 735, 739 (8th Cir. 1994).

Evenagainst Rushkoff, however, this Bivens action i s untena ble because Rushkoff is protected by qualified immunity
. See , e.g. , Butz v. Economou , 438 U.S. 478, 507 (1978) (official s are entitled to qualified immunity unless actions knowingly violate a clearly established constitutional right). Qualified immunit y protects Rushkoff from liability for mistakes in judgment. None of the actions alleged here either rise above the level of a mistake or to th e level of a due process violation. Id. Therefore, w e agree with the district court that plaintiffs simply offered n o eviden ce which would deny Rushkoff qualified immunity. We hav e considered the remainder of pl aintiffs' claims and find them to be without merit.

III. CONCLUSION The district court's order dismissing plaintiffs' actions is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.