IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50081

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

15530 CLOUD TOP, SAN ANTONIO, BEXAR COUNTY, TEXAS,

Defendant,

HARLAN D. VANDER ZEE,

Movant-Appellant,

versus

STONE OAK NATIONAL BANK; ET AL.,

Claimants,

STONE OAK NATIONAL BANK,

Claimant-Appellee,

STONE OAK BANKSHARES, INC.,

Appellee.

- - - - - - - - - - - - - - - - - - - - - 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ONE 1988 GMC 1500 SLX SIERRA PICK-UP TRUCK,

VIN: 1GTDC14K9JZ510015,

Defendant,
2

HARLAN D. VANDER ZEE,

Movant-Appellant,

versus

STONE OAK NATIONAL BANK,

Claimant-Appellee,

STONE OAK BANKSHARES, INC.,

Appellee.

- - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ONE 1989 MERCURY GRAND MARQUIS,

VIN: 2MEBM75F3KX603496,

Defendant,

HARLAN D. VANDER ZEE,

Movant-Appellant,

versus

STONE OAK NATIONAL BANK,

Claimant-Appellee,

STONE OAK BANKSHARES, INC.,

Appellee.

- - - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ONE 1989 LINCOLN TOWNCAR,

VIN: 1LNBM81F8KY610520,
3

Defendant,

HARLAN D. VANDER ZEE,

Movant-Appellant,

versus

STONE OAK NATIONAL BANK,

Claimant-Appellee,

STONE OAK BANKSHARES, INC.,

Appellee.

- - - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

UNITED STATES CURRENCY, FUNDS, PROCEEDS, AND

MONIES REPRESENTED BY AND INCLUDING ANY AND

ALL PRINCIPAL AND INTEREST RELATED THERETO

TO CERTIFICATES OF DEPOSIT #00950, #00951,

#00952, #00953, #00962, #00963, #01004,

#01167, #01168 AT THE STONE OAK NATIONAL BANK,

SAN ANTONIO, BEXAR COUNTY, TEXAS,

Defendant,

HARLAN D. VANDER ZEE,

Movant-Appellant,

versus

STONE OAK NATIONAL BANK; ET AL.,

Claimants,

STONE OAK NATIONAL BANK,

Claimant-Appellee,

STONE OAK BANKSHARES, INC.,

Appellee.
 

*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opinion should not be published and is not precedent except under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.

4

 

No. 98-51157

 

In re: HARLAN D. VANDER ZEE,

Petitioner.

 

Appeal from the United States District Court

for the Western District of Texas, San Antonio

(SA-89-CV-364 & SA-90-CV-113)

 

June 11, 1999

Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.

PER CURIAM:*

These consolidated proceedings are an appeal (our cause no.

98-50081) by Harlan D. Vander Zee of the district court’s denial of

his motion to intervene in the consolidated forfeiture actions in

the San Antonio Division of the Western District of Texas (civil

no. SA-89-CA 3064) and Vander Zee’s “Alternative Petition for A

Writ of Mandamus” (our cause no. 98-51157), which states it is

filed “in the event this Court determines that the direct appeal

[of the denial of intervention] is somehow unavailable.”

Prior proceedings by Vander Zee in this Court include the

following: Vander Zee v. Reno, 73 F.3d 1365 (5th Cir. February 2,

1996) (Vander Zee I); Vander Zee v. Reno, No. 95-50482 (5th Cir.

Oct. 4, 1996) (unpublished) (Vander Zee II); and Vander Zee v.

Stone Oak Bankshares, No. 95-50795 (5th Cir. May 19, 1997)
5

(unpublished) (Vander Zee III).

The judgment in the forfeiture action in which Vander Zee

sought to intervene was entered in August 1992. That judgment

approved and incorporated a settlement agreement and addendum

between the United States and Stone Oak National Bank (the bank)

which included a provision to the effect that the bank would give

written assurance to the United States Attorney for the Western

District of Texas that it would not rehire Vander Zee (formerly its

executive vice president) in any capacity.

That agreement is referenced in Vander Zee I, 73 F.3d at 1367.

Vander Zee I was an appeal from the dismissal of Vander Zee’s suit,

filed in August 1993 in the Austin Division of the Western District

of Texas, and not a part of the forfeiture action, asserting Bivens

claims for damages against certain individual federal officials and

claims against the United States for declaratory and injunctive

relief as to the bank’s said agreement respecting not rehiring

Vander Zee. In part II of Vander Zee I, we addressed only the

claims against the United States for declaratory and injunctive

relief. Id. at 1371-72. We there noted that the Administrative

Procedure Act (APA) “provides for judicial review of ‘agency

action’ and waives sovereign immunity for claims ‘seeking relief

other than money damages,’” 5 U.S.C. § 702, but that “the federal

courts are specifically excluded from the APA’s definition of

‘agency’ by § 701(b)(1)(B)” and that the settlement agreement

specifically provided it was not effective until approved by order

of the district court. Id. As a result, Vander Zee’s claims for
6

declaratory and injunctive relief against the United States in

substance sought “to collaterally attack the district court’s order

approving the terms of the settlement,” for which “the proper

avenue would be to seek to intervene before the district court

which has retained jurisdiction in order to enforce the terms of

its order.” Id. at 1372. A footnote was then appended stating:

“Should the district court in that proceeding deny

intervention or, although granting intervention, deny

Vander Zee relief, he could seek review of each order by

direct appeal (or, perhaps, mandamus, should direct

appeal be for some reason unavailable).” Id. at 1372

n.8.

Vander Zee’s motion to intervene references the above passage

of Vander Zee I to which the above-quoted footnote is appended, and

his mandamus references the footnote.

In Vander Zee II, we affirmed the April 1995 dismissal of a

damages suit filed by Vander Zee in July 1994 in the Austin

Division of the Western District of Texas against the United States

under the Federal Tort Claims Act (FTCA) and against various

present or former federal officials in their individual capacities,

including a former Assistant Attorney General, a former United

States Attorney and former Assistant United States Attorneys, an

FBI agent, and employees of the Office of the Comptroller of the

Currency—some of which individual defendants were also defendants

in Vander Zee I—for diverse state law torts and Bivens claims.

Vander Zee III was a suit, likewise in the Austin Division of

the Western District of Texas, by Vander Zee against the bank, its

successor, and their liability insurer, for various torts,

including conspiracy and intentional infliction of emotional
7

distress, and for breach of contract, including breach of an

alleged oral contract to rehire him after the money-laundering

litigation was over and a contract to pay his attorney’s fees

incurred in defending the criminal money-laundering charges. The

district court dismissed all claims except the mentioned contract

claims on motion for summary judgment or for directed verdict. The

two referenced contract claims were submitted to the jury, which

awarded Vander Zee $293,750 on the reemployment contract claim and

$43,750 on the contract to pay the attorney’s fees claim. The

district court granted the defendants’ motion for judgment

notwithstanding the verdict on Vander Zee’s breach of contract to

reemploy claim, and on October 5, 1995, rendered judgment for

Vander Zee in the amount of $43,750 on his contract to pay

attorney’s fees claim and for all the defendants on all other

claims by Vander Zee. Vander Zee appealed and in Vander Zee III we

affirmed that judgment.

Vander Zee filed his motion to intervene in the San Antonio

forfeiture case on April 7, 1997. In the intervention, Vander Zee

sought to bring claims, including damages claims, against the

bank—and its successor—and the United States and to join as parties

to the forfeiture action and bring tort and Bivens damages crossactions against four individual defendants, including a former

United States Attorney and two former Assistant United States

Attorneys who had been parties defendant in Vander Zee I and Vander

Zee II. These tort and Bivens claims were essentially the same as

those litigated previously in one or more of Vander Zee I, Vander
8

Zee II, and Vander Zee III. It is evident that the essential and

overwhelmingly predominant purpose of the attempted intervention

was to relitigate the damages claims previously litigated in the

referenced other suits in the Austin Division of the Western

District of Texas. Vander Zee’s intervention papers asserted,

however, that in September 1995, in the trial of Vander Zee III, he

had learned new facts which warranted such relitigation.

The motion to intervene was opposed by the United States and

by the bank and its successor.

On November 18, 1997, the district court denied the motion to

intervene, stating:

“(1) there is no longer a live case or controversy before

the Court; (2) the motion to intervene is untimely; (3)

the would-be intervenor does not have sufficient interest

relating to the property at issue in this consolidated in

rem action to satisfy Federal Rule of Civil Procedure

24(a)(2); (4) would-be intervenor’s claims share no

questions of law or fact with this civil forfeiture

action; and (5) post-judgment intervention almost five

years after these cases were conclusively resolved will

substantially prejudice both the United States and Stone

Oak National Bank.”

After thoroughly considering the record, the briefs, and the

argument of counsel, we conclude that: (1) Vander Zee has

demonstrated neither any reversible error in the district court’s

denial of intervention sought under Fed. R. Civ. P. 24(a) nor any

abuse of discretion in the district court’s denial of intervention

under Fed. R. Civ. P. 24(b) and (2) Vander Zee has demonstrated no

adequate grounds for issuance of mandamus. Accordingly, so far as

Vander Zee appeals the denial of intervention under Rule 24(a), the

district court’s judgment is AFFIRMED; so far as Vander Zee appeals
9

the denial of intervention under Rule 24(b), the appeal is

DISMISSED; and, Vander Zee’s petition for writ of mandamus is

DENIED.

AFFIRMED in part, DISMISSED in part; mandamus DENIED