           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 26, 2008

                                     No. 08-50240                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JOHN M VUKSICH

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:07-CV-233


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal brings to us a retired military man’s Federal Tort Claims Act
suit against the Government. The inexplicable failings of both parties to use
reasonable care led to Plaintiff’s personal belongings being auctioned by a
private storage company to satisfy outstanding storage fees. After a bench trial,
the district court entered a take nothing judgment. We affirm.
                                              I


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 08-50240

      John Vuksich (Plaintiff) retired from the Army in June 1993. He was
entitled to have the Army pay for one year of storage for his belongings, and he
was also entitled to have the Army pay to ship his belongings within a year. The
authorized period expired on June 3, 1994. Although the storage entitlement
could not be extended, Plaintiff could request up to five one-year extensions of
the shipping benefit. Plaintiff testified that he “knew that the first one year was
paid for by the government. And [he] knew that after that one year, storage
could continue on [his] nickel.” Plaintiff’s belongings were moved and stored by
a private company.
      Plaintiff duly requested the extension of the shipping entitlement during
the following years. In several of the letters advising Plaintiff that his shipping
entitlement had been extended, the Government reminded Plaintiff that the
storage entitlement was not subject to extension, that it expired a year after his
retirement, and that Plaintiff “must contact the Transportation Office(s) which
is storing your property to arrange payment of storage costs.” Plaintiff, however,
neither contacted the Transportation Office nor paid the storage fees. In April
1999, the Government sent Plaintiff a letter reminding him that his “FINAL
request” for extension of the shipping entitlement had been granted, and that
the extension ran until 30 June 1999.           The letter contained the same
advisements regarding the storage entitlement. Plaintiff, however, made no
effort to arrange for shipment of his goods or to pay the storage fees.
      As the district court explained in its findings of fact and conclusions of law,
“the Plaintiff had been aware since June 14, 1997, at the latest, of the possibility
that a failure to follow the conditions of his storage entitlement and agreement
could ‘result in the commercial company holding a public auction of [his] goods.’”
Plaintiff was also warned in March 1998 that failure to take delivery of his goods
before the expiration of the shipping entitlement would lead to his shipment
being converted to a commercial account.


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       In 2000, 2001, and 2002, the Government sent Plaintiff letters concerning
the storage of his goods; however, the letters were sent to an old address.
Plaintiff had notified the Government of a change of address and provided the
correct address, but for some reason the computer system was never updated.
The Government also provided the private storage company with an incorrect
address for Plaintiff, the effect of which was that Plaintiff never received the
correspondence from the storage company informing him that it was going to
auction off his belongings to pay for outstanding storage fees.                Plaintiff’s
belongings were auctioned in November 2004. A person who had bought some
of Plaintiff’s belongings at the auction contacted him because he wanted to
return some of Plaintiff’s personal effects.
       Plaintiff unsuccessfully sought compensation from the Army through
administrative channels. He then sued the Government under the Federal Tort
Claims Act, alleging negligence and conversation under Virginia law. The
district court held a bench trial. The court concluded that the Government was
negligent, but that Plaintiff was also at fault. Because Virginia maintained the
affirmative defense of contributory negligence, the court held that Plaintiff’s
negligence barred recovery. As to conversion, the court concluded that Plaintiff
failed to carry his burden of proof as he “presented no evidence the [Government]
took any action that was in denial of, or inconsistent with, the Plaintiff’s rights
as owner.” Finally, even assuming that he had proved liability, the court
concluded that Plaintiff “failed to prove by a preponderance of the evidence what,
if any, amount of damages he should receive.” Plaintiff appeals.
                                            II
       “‘The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.’”1 “‘A


       1
        Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006) (quoting
In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005)).

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                                       No. 08-50240

factual finding is not clearly erroneous as long as it is plausible in the light of the
record read as a whole.’”2
                                              III
                                               A
       Plaintiff’s first assignment of error is unclear. The argument revolves
around notice and due process. While Plaintiff tells us that he is not pursuing
a constitutional claim under the guise of the FTCA, we cannot understand the
argument as anything but an assertion that the district court erred because the
“notice” provided by the Government to Plaintiff fell short of what the Due
Process Clause requires. This may be so, but “[t]he FTCA does not in terms
create liability for conduct in violation of the Constitution; such conduct may be
the basis for an FTCA claim only if the conduct violates applicable state tort law
and if the suit is not barred by some federal limitation upon FTCA liability.”3
The cases upon which Plaintiff relies all involve constitutional due process
challenges to the adequacy of notice given by the government.4                       Plaintiff
complains that the district court analyzed the Government’s actions like a mine-

       2
         Walker v. City of Mesquite, 402 F.3d 532, 535 (5th Cir. 2005) (quoting United States
v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998)).
       3
         R. Fallon, et al., Hart & Wechsler’s The Federal Courts and the Federal System 968
(5th ed. 2003); see Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994) (“Indeed, we
have consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the
State—the source of substantive liability under the FTCA.”); Sanchez v. Rowe, 870 F.2d 291
(5th Cir.1989) (“We agree . . . that suits for violations of federal constitutional rights, even
though tortious in nature, are not within the scope of the FTCA. Because ‘[b]y definition
constitutional torts are not based on state law,’ the FTCA does not provide a cause of action
for constitutional torts.” (quoting McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir. 1986))).
       4
         See Jones v. Flowers, 547 U.S. 220 (2006) (due process challenge to the steps taken by
the state to provide delinquent tax payer notice of tax sale); Dusenbery v. United States, 534
U.S. 161 (2002) (due process challenge to the sufficiency of notice given to a prisoner of the
Government’s intent to forfeit his property); Mennonite Bd. of Missions v. Adams, 462 U.S. 791
(1983) (due process challenge to the sufficiency of notice provided to a delinquent tax payer
prior to tax sale of property); Robinson v. Hanrahan, 409 U.S. 38 (1972) (per curiam) (due
process challenge to the sufficiency of notice provided to a prisoner of state forfeiture
proceedings).

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                                        No. 08-50240

run tort, but that, of course, is what the FTCA contemplates. As the Supreme
Court has explained, under the FTCA, “the United States waives sovereign
immunity ‘under circumstances’ where local law would make a ‘private person’
liable in tort.”5
                                               B
      Plaintiff next attacks the district court’s contributory negligence finding.
Plaintiff does not argue that contributory negligence is not the law of Virginia
or that it is not a complete bar to recovery. Instead, he contests the district
court’s application of the doctrine. Plaintiff has shown no reversible error.
      As the Virginia Supreme Court has explained, “Contributory negligence
is an affirmative defense that must be proved according to an objective standard
whether the plaintiff failed to act as a reasonable person would have acted for
his own safety under the circumstances. The essential concept of contributory
negligence is carelessness.”6            “Contributory negligence consists of the
independent elements of negligence and proximate causation.”7 “Negligence of
the parties may not be compared, and any negligence of a plaintiff which is a
proximate cause of the accident will bar a recovery.”8 Proving contributory
negligence is the defendant’s burden, and it is generally a question of fact.9
      The district court found that “[a]s a result of the Plaintiff’s complete
inaction and failure to take reasonable steps to pay for the storage and recover
his property, the Court finds by a preponderance of the evidence the Plaintiff
was negligent and his negligence was a proximate cause of his damages.” The


      5
          United States v. Olson, 546 U.S. 43, 44 (2005).
      6
          Jenkins v. Pyles, 611 S.E.2d 404, 407 (Va. 2005) (citations omitted).
      7
          Estate of Moses v. Sw. Va. Transit Mgmt. Co. Inc., 643 S.E.2d 156, 160 (Va. 2007).
      8
          Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987).
      9
          Sawyer v. Comerci, 563 S.E.2d 748, 752 (Va. 2002).

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                                   No. 08-50240

record adequately supports this finding. Plaintiff admitted in his testimony that
he knew he was responsible for paying storage costs after the first year, and the
Government reminded him of this several times between 1994 and 1999 and told
him to contact the transportation office to arrange for payment. Plaintiff was
unambiguously told that his shipping entitlement expired on June 30, 1999, and
could not again be extended. As Plaintiff testified, “I knew that the shipping was
over. I knew that the storage funded by the government had been over for years.
The situation in my life said I don’t need the property now. . . . The property’s in
D.C. Leave it all alone and live your life that you need over here. So I had no
requirement for the property.”
      And as the district court noted, “the Plaintiff had been aware since June
14, 1997, at the latest, of the possibility that a failure to follow the conditions of
his storage entitlement and agreement could ‘result in the commercial company
holding a public auction of [his] goods.’” Despite Plaintiff’s admitted knowledge
that he was responsible for the storage costs after the first year, and the
Government’s repeated advisements, Plaintiff took no step to pay for the storage,
to contact the Government about the storage, to arrange for the shipment of his
goods, to contact the storage company after his shipping entitlement ended, to
pay the storage company after the shipping entitlement ended, or anything else
for that matter.    In short, the record amply supports the district court’s
conclusion that Plaintiff failed to act as a reasonable person would to safeguard
his property, and that those failings were a proximate cause of his injury.
                                          C
      Plaintiff next contends that the district court erred in finding that he
failed to prove that the Government converted his property. The Virginia
Supreme Court has explained that “[c]onversion is a tort involving injury to
property, in which one wrongfully exercises or assumes authority over another’s
goods, depriving him of their possession. Conversion includes any distinct act


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                                        No. 08-50240

of dominion wrongfully exerted over property that is in denial of, or inconsistent
with, the owner’s rights.”10
      The district court concluded that evidence at trial demonstrated that the
private storage company was the entity responsible for auctioning Plaintiff’s
property, and that “Plaintiff presented no evidence the Defendant took any
action that was in denial of, or inconsistent with, the Plaintiff’s rights as owner.”
The record amply supports these conclusions. We see no evidence that the
Government was aware of or in involved with, let alone authorized, the
auctioning of Plaintiff’s goods. When the Government extricated itself from the
storage and shipping of Plaintiff’s belongings, it did not interfere with Plaintiff’s
rights or wrongfully exercise authority or control over Plaintiff’s property. The
property remained Plaintiff’s at that time, and Plaintiff knew where his property
was and that he was responsible for paying the costs of storage. To the extent
Plaintiff intends to challenge this finding, he has shown no error.
      Plaintiff tries to sidestep this conclusion by arguing that the district court
erred by not treating the Government as a warehouseman under Virginia law,
which matters, Plaintiff says, because of some of the statutory provisions
applicable to warehouseman.11 “The [FTCA] makes the United States liable ‘in
the same manner and to the same extent as a private individual under like
circumstances.’        As th[e] Court said in Indian Towing, the words ‘like
circumstances’ do not restrict a court’s inquiry to the same circumstances, but




      10
           Hartzell Fan, Inc. v. Waco, Inc., 505 S.E.2d 196, 201 (Va. 1998).
      11
           See Va. Code Ann. §§ 8.7-204, 8.7-210.

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require it to look further afield.”12 Under Virginia law, a “[w]arehouseman’ is a
person engaged in the business of storing goods for hire.”13
       Plaintiff has not persuaded us that a warehouseman is the appropriate
“private individual” analogy here. The Government never itself stored Plaintiff’s
belongings. Rather, the Government arranged and paid for a private company
to move and store Plaintiff’s property as a benefit after his retirement. Plaintiff
knew that a private company was providing these services. As the Government
explains, it was acting akin to an employer providing a relocation benefit to an
employee. On the record we find before us, we agree with the Government.
Plaintiff has shown no reversible error.
                                              III
       Because Plaintiff has shown no reversible error in the district court’s
contributory negligence or conversion determinations, we have no occasion to
consider the parties’ damages arguments.
       The judgment of the district court is AFFIRMED.




       12
         Olson, 546 U.S. at 46 (citing 28 U.S.C. § 2674; Indian Towing Co. v. United States,
350 U.S. 61 (1955)) (citations omitted).
       13
            Va. Code Ann. § 8.7-102(m).

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