Opinion
24-1181
10-16-2024
FRED L. NANCE JR., Plaintiff-Appellant, v. UNITED STATES OF AMERICA, et al., Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
Submitted October 15, 2024 [*]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 22 C 3861 LaShonda A. Hunt, Judge.
Before MICHAEL Y. SCUDDER, Circuit Judge JOHN Z. LEE, Circuit Judge NANCY L. MALDONADO, Circuit Judge
ORDER
Invoking the Federal Tort Claims Act, 28 U.S.C. § 2674, and other laws, Fred L. Nance Jr. sued the United States and federal employees for refusing to act upon his report of a misuse of government funds and for retaliating against him. The district court correctly dismissed Nance's complaint for failure to state a claim; thus we affirm.
Nance's allegations, which we take as true at this stage, Smykla v. Molinaroli, 85 F.4th 1228, 1234 (7th Cir. 2023), concern his employment with a nonprofit organization that had received a federal grant. During his time at the nonprofit, Nance thought that it was misusing the grant by paying a fictitious employee. He reported his concern to the U.S. Department of Justice in late 2020, and according to Nance, the Department investigated and confirmed the alleged fraud but did not try to fix it. A few months after his report, the nonprofit told the Department that it was returning the grant funds because of COVID-related events. Soon after, the nonprofit fired Nance, and Nance has since struggled to find work and pay his bills.
Independently, Nance had previously worked in the Department's peer-review program for federal grant applications. After his discharge from the nonprofit, Nance applied to rejoin the program in 2021. The Department rejected him, citing a financial conflict of interest. Nance says that the conflict did not exist and that the reason the Department rejected him was to retaliate for his complaint against the nonprofit.
These events led Nance to sue the government twice. In his first case, Nance sued under the Federal Torts Claims Act and anti-retaliation laws. The court dismissed the tort claims (without prejudice for lack of administrative exhaustion) and the antiretaliation claims (with prejudice because the government never employed him).
Nance then exhausted his administrative remedies and sued again. The district court construed and evaluated the second suit as follows. First, the court addressed Nance's claims under the Federal Tort Claims Act. These claims accused federal employees of negligence, intentional infliction of emotional distress, abuse of process, defamation, misrepresentation and deceit, and conspiracy. The court construed these claims as against the United States, whom Nance named, rather than the federal employees, see Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008), and then ruled that Nance failed to state a valid claim. Second, the court considered Nance's claims against the government under anti-retaliation and whistleblower laws. It dismissed these as claim-precluded because Nance had raised similar allegations in his first suit, and in any case, he failed to state a claim because Nance admitted that the government never employed him. Finally, the court dismissed a claim under the First Amendment for retaliation because Supreme Court precedent foreclosed it.
Two case-management matters warrant comment. First, shortly before the judge dismissed Nance's claims, the judge chastised Nance for rude remarks in his briefing, where he called the government's lawyers "idiots." Nance says that those lawyers had unfairly criticized him first and the district court's refusal to chastise those lawyers showed bias. Second, after dismissing the claims, the district court denied as moot Nance's pending motions for discovery.
We review the dismissal of this suit de novo, Smykla, 85 F.4th at 1234, and we first address Nance's challenge to the dismissal of his claims under the Federal Tort Claims Act. A limited waiver to the United States's sovereign immunity, the Act allows plaintiffs to sue the United States for certain torts by federal employees if, in similar circumstances, a private person would be liable under the relevant state's law (here, Illinois). 28 U.S.C. § 1346(b)(1); FDIC v. Meyer, 510 U.S. 471, 478 (1994).
Nance has failed to state a claim under Illinois law for negligence and intentional infliction of emotional distress; thus he cannot advance these claims under the Act. We will assume, as Nance alleges, that federal employees failed to act on his report of fraud and to re-admit him to the peer-review program. But, fatal to his theory of negligence, Nance cites nothing stating that a person has a common law duty to retain someone's services. Nor has he shown that when someone reports fraud, the recipient owes a common law duty to the reporter to act on the report. Cf. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (a citizen cannot contest a decision not to prosecute a case against another); In re Appointment of Special Prosecutor, 902 N.E.2d 730, 741 (Ill.App.Ct. 2009) (same). Likewise, Nance's allegation that the federal employees negligently refused to stop the nonprofit from returning its grant also does not state a claim. Without a "special relationship" (not argued to be present here), a person has no duty to stop another's acts. E.g., Brewster v. Rush-Presbyterian-St. Luke's Med. Ctr., 836 N.E.2d 635, 638 (Ill.App.Ct. 2005). Finally, the tort of intentional infliction of emotional distress, which Nance connects to his allegation that federal employees did not re-admit him to the peer-review program despite knowing that he would suffer, also fails. This tort is limited to conduct that goes "beyond all possible bounds of decency and [is] regarded as intolerable in a civilized community." Feltmeier v. Feltmeier, 798 N.E.2d 75, 80-81 (Ill. 2003).
That brings us to the remaining torts that Nance names. He cites abuse of process, defamation, and misrepresentation and deceit claims. But the Act excludes each from its waiver of immunity. 28 U.S.C. § 2680(h). His last named tort is conspiracy. But the failure of the other torts in turn defeats a claim for conspiracy because conspiracy is not an independent tort in Illinois. And without a tort to underlie it, the conspiracy claim fails. Thomas v. Fuerst, 803 N.E.2d 619, 625-26 (Ill.App.Ct. 2004).
Nance also unpersuasively reprises his whistleblower and retaliation claims. To begin, he does not engage with the district court's reasoning that his first suit precludes these claims; thus he has waived any arguments to the contrary. See Cont'l W. Ins. Co. v. Country Mut. Ins. Co., 3 F.4th 308, 318 (7th Cir. 2021). And even if they were not precluded, the court correctly ruled that he failed to state a claim: Nance cannot bring federal statutory whistleblower or retaliation claims against the government unless it employed him. See 41 U.S.C. § 4712; 42 U.S.C. § 2000e-3(a); Worth v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001). But he admits that the government did not. The same admission defeats Nance's similar claim under Illinois's whistleblower protection law, 740 ILCS 174/15. See Rabin v. Karlin &Fleischer, LLC, 945 N.E.2d 681, 687 (Ill.App.Ct. 2011). (An additional problem with this state-law claim is that Nance assumes without authority that Illinois can empower a person to sue the federal government.) Finally, any claim that, under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), federal employees are liable under the First Amendment for retaliation fails. Bivens does not support such relief. Egbert v. Boule, 142 S.Ct. 1793, 1807 (2022).
We end with Nance's two case-management arguments. He first argues that the district court wrongly ignored his motions for discovery. But the court did not ignore his motions-it denied them. And this denial did not prejudice Nance. His claims failed because his allegations (taken as true) did not justify relief-not because Nance was unable to substantiate them. See Young v. United States, 942 F.3d 349, 350-51 (7th Cir. 2019). Nance also argues that the district judge was biased and thus violated his right to due process. We must avoid constitutional questions when possible, see Bond v. United States, 572 U.S. 844, 855 (2014), and we can do so here by considering whether Nance would prevail on a recusal motion under 28 U.S.C. § 455, which exceeds the baseline of due process, see Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890 (2009). Nance provided no basis for recusal. The judge's admonition that Nance show civility, even if Nance perceived his opponents as also ill-mannered, falls far short of showing a "deep-seated favoritism or antagonism" against Nance. Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir. 2002). Moreover, "[j]udicial rulings alone almost never constitute a valid basis" for recusal. Id. Finally, although Nance speculates that the judge was biased against him because of his pro se status and social media posts, he does not substantiate this accusation.
We have considered Nance's remaining arguments, but they are not developed or properly presented and therefore do not require further comment.
AFFIRMED
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).