                                                               FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                         December 9, 2010
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                           Clerk of Court
                        FOR THE TENTH CIRCUIT


AHMAD R. SHAYESTEH,

            Plaintiff-Appellant,

v.                                                No. 10-4012
                                          (D.C. No. 2:05-CV-00085-TC)
AARON RATY, individually and as                     (D. Utah)
an agent of the Drug Enforcement
Administration; MARK BACON,
individually; RICHARD W. DAYNES,
individually and as an Assistant
United States Attorney for the District
of Utah; PAUL M. WARNER,
individually and as the United States
Attorney for the District of Utah;
STEVE GERARD, individually and as
an agent of the Federal Bureau of
Investigations; FEDERAL BUREAU
OF INVESTIGATION; UNITED
STATES DRUG ENFORCEMENT
ADMINISTRATION; UNITED
STATES ATTORNEY’S OFFICE
FOR THE DISTRICT OF UTAH;
UNITED STATES OF AMERICA,

            Defendants-Appellees.


AHMAD R. SHAYESTEH,

            Plaintiff-Appellant,

v.                                                 No. 10-4051
                                          (D.C. No. 2:04-CV-00488-CW)
                                                     (D. Utah)
    CENTRAL BANK; CENTRAL
    BANCORPORATION; GARY
    JENSEN; DAVE MCBETH; STEVE
    RODEN,

              Defendants-Appellees.


    UNITED STATES OF AMERICA,

              Movant to Intervene.


                          ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



       Some time after arresting Ahmad R. Shayesteh on drug charges, federal

authorities seized the contents of his safe-deposit box. In these consolidated

lawsuits, Mr. Shayesteh claims that the government’s seizure was unlawful and

that he is entitled to damages from federal law enforcement officers, the bank,

and various bank officials. The district court granted summary judgment to the

defendants, and we now affirm that decision.

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
                                          I

                                         A

      The origins of this case take us back to 1996 when Mr. Shayesteh was

convicted in federal district court in Utah on two counts of possession of a

controlled substance with intent to distribute. In connection with that case, Mr.

Shayesteh submitted a personal financial statement to the court representing that

he owned no assets other than $200 in a bank account and a car worth $3,000,

both of which the government seized as part of his arrest. On the basis of his

representations about his financial situation, Mr. Shayesteh was permitted to

proceed in forma pauperis (ifp) in his (ultimately unsuccessful) criminal appeal.

      As it turns out, however, Mr. Shayesteh long had a safe-deposit box full of

money at the Central Bank in Provo. In 2002 and after various efforts to locate

Mr. Shayesteh proved unsuccessful, the bank deemed his safe-deposit box

abandoned, opened it, and found what it thought to be between $70,000 and

$80,000 in cash. The bank contacted the government and explained that Mr.

Shayesteh had rented the safe-deposit box years earlier. After government agents

researched his criminal history and ascertained that he was now in federal prison

on federal drug charges, the Drug Enforcement Agency (DEA) seized the contents

of the box, which DEA agents said amounted to $72,100 in cash.

      The government then pursued an in rem forfeiture proceeding, arguing the

money amounted to proceeds from Mr. Shayesteh’s drug trafficking operations

                                         -3-
and should be remitted to the government. In response, Mr. Shayesteh lodged a

claim to the money and advanced a number of defenses, including one invoking

the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-3422 (RFPA); he

also filed a counter-complaint under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346, 2671-2680 (FTCA). In his counter-complaint, Mr. Shayesteh alleged

that the box contained $80,000 in cash and $4 million in diamonds, and he

asserted that federal agents must have lost or stolen $7,900 in cash and the

diamonds.

      Ultimately, the district court dismissed Mr. Shayesteh’s counter-complaint

on the grounds of sovereign immunity and failure to exhaust administrative

remedies. The court also struck his claim to the seized cash because he exhibited

bad faith in refusing to comply with discovery requests, and the court entered a

judgment of forfeiture in favor of the government. Mr. Shayesteh appealed but

we affirmed. See United States v. $72,100 in U.S. Currency, No. 08-4085,

2009 WL 247837 (10th Cir. Feb. 3, 2009) (unpublished).

                                         B

      This finally brings us to Mr. Shayesteh’s latest lawsuits. Mr. Shayesteh

filed No. 10-4012 seeking damages from various government officials who were

allegedly involved in the seizure of assets from his safe-deposit box. Only two of

the claims in this lawsuit, however, remain contested in this appeal and so require




                                         -4-
our resolution: a claim against FBI agent Steve Garrard 1 under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and a RFPA claim against the FBI, the DEA, and the DEA agent who handled

Mr. Shayesteh’s criminal case, Aaron Raty. At summary judgment, the district

court concluded that (a) the Bivens claim failed because Mr. Shayesteh had failed

to create a triable question of fact over whether Agent Garrard was involved in

the seizure of assets from his safe-deposit box; and, (b) the RFPA claim was

barred by claim preclusion.

      In No. 10-4051, Mr. Shayesteh brought a RFPA claim and a host of

state-law claims for damages against Central Bank, its holding company, and

various bank employees. Mr. Shayesteh alleged that these entities and individuals

bore responsibility for losing the $7,900 in cash and diamonds that, Mr.

Shayesteh contends, were stored in his safe-deposit box. Again, however, the

district court granted summary judgment against Mr. Shayesteh, this time holding,

among other things, that Mr. Shayesteh should be judicially estopped from

claiming that the safe-deposit box contained such riches given his earlier

representations to the court that he was indigent. On appeal, Mr. Shayesteh again

raises only two arguments for reversal, asking us to hold that the district court

erred in (a) applying judicial estoppel to his claims; and, (b) permitting discovery


1
      Although Agent Garrard’s name is spelled “Gerard” in our caption, we use
what appears to be the correct spelling in the body of our decision.

                                         -5-
of certain documents and denying his motion to strike those documents as exhibits

to defendants’ motion for summary judgment.

      In what follows, we review the district court’s summary judgment

dispositions in turn. As always we review a grant of summary judgment de novo,

viewing the evidence and reasonable inferences that can be drawn from that

evidence in the light most favorable to Mr. Shayesteh as the non-moving party.

Because he proceeds before us pro se, we construe Mr. Shayesteh’s pleadings

liberally. Other applicable standards of review we discuss as they become

relevant.

                                         II

                                         A

      In No. 10-4012, Mr. Shayesteh first takes issue with the district court’s

conclusion that he failed to come forward with evidence disputing Agent

Garrard’s declaration that neither he nor any other FBI agent was involved with

the safe-deposit box seizure. 2 Mr. Shayesteh argues that a triable question exists

about Agent Garrard’s participation because the government’s own complaint in

the forfeiture action alleged the FBI’s participation in opening his safe-deposit

box. But the fact that someone at an agency as large as the FBI may have been

involved in the seizure does nothing to call into question Agent Garrard’s

2
       Mr. Shayesteh argues that Agent Garrard’s declaration was not sworn, but
he cites to the very statutory provision, 28 U.S.C. § 1746, that permits an
unsworn declaration like Agent Garrard’s to substitute for a sworn affidavit.

                                         -6-
declaration that he wasn’t involved. Simply put, Mr. Shayesteh hasn’t come

forward with any evidence from which a reasonable fact finder could doubt Agent

Garrard’s declaration.

      Recognizing the difficulty of his position, Mr. Shayesteh replies that the

district court should not have granted summary judgment without first permitting

him time to conduct discovery about Agent Garrard’s role. When a party

opposing summary judgment wishes to obtain more time for discovery, however,

Fed. R. Civ. P. 56(d) (formerly Rule 56(f)) requires that party to file an affidavit

“specifi[ying] [the] reasons [why] it cannot present facts essential to justify its

opposition,” and this duty requires the moving party to identify “(1) the probable

facts not [now] available, (2) why those facts cannot be presented currently, (3)

what steps have been taken to obtain these facts, and (4) how additional time will

enable [the party] to obtain those facts and rebut the motion for summary

judgment.” Valley Forge Ins. Co. v. Health Care Mgmt., 616 F.3d 1086, 1096

(10th Cir. 2010) (internal quotations omitted). Although Mr. Shayesteh included

a declaration with his summary judgment opposition and in it requested time for

further discovery, he did not comply with these requirements. The district court

therefore acted within its discretion in granting summary judgment against Mr.

Shayesteh when it did.




                                          -7-
                                           B

      Separately, Mr. Shayesteh complains the district court erred in holding that

his RFPA claims were barred by claim preclusion because Mr. Shayesteh raised

and had a fair opportunity to litigate any RFPA claim in the forfeiture suit, which

resulted in a final judgment on the merits affirmed by this court. See Plotner v.

AT&T Corp., 224 F.3d 1161, 1168 (10th Cir. 2000) (reciting elements of claim

preclusion). Before us, Mr. Shayesteh argues that the district court’s conclusion

is in error for two reasons: the forfeiture proceeding didn’t result in a final

judgment on the merits because his claims were dismissed as a sanction; in any

event, he was denied a full and fair opportunity to present his claims in the prior

forfeiture proceeding.

      The first of these arguments, however, Mr. Shayesteh disclaimed before the

district court and so may not pursue on appeal. See D.Ct. Order of Nov. 16, 2009

at 16 (noting that, before the district court, Mr. Shayesteh had “admit[ted] that the

forfeiture case resulted in a judgment on the merits”); Plaintiff’s Summary

Judgment Opposition at 8 (conceding final judgment on the merits existed);

United States v. Olano, 507 U.S. 725, 733 (1993) (discussing waiver doctrine).

The second of these arguments — whether he had a full and fair opportunity to

litigate his RFPA claim — Mr. Shayesteh did pursue in the district court. But on

this argument he lost there and cannot prevail here. It is undisputed that Mr.

Shayesteh alleged a violation of the RFPA in the forfeiture action and had every

                                          -8-
chance to litigate the statute’s application there. To this, Mr. Shayesteh replies

cryptically that a RFPA claim is more likely to succeed in this independent

proceeding than it was when raised in connection with a forfeiture action. But

Mr. Shayesteh’s argument focuses on the wrong question. The pertinent inquiry

before us isn’t whether, in the forfeiture proceeding, he would’ve or should’ve

won a RFPA claim but whether he could have raised that claim and had a full and

fair opportunity to litigate it there. Mr. Shayesteh has not explained to the district

court or this court why he lacked such an opportunity and, while we owe his pro

se pleadings a liberal construction, we may not invent or advance arguments, even

for pro se litigants. See In re Antrobus, 563 F.3d 1092, 1099 (10th Cir. 2009).

                                          III

                                          A

      In No. 10-4051, the district court held that Mr. Shayesteh should be

judicially estopped from pursuing claims against the bank and its employees. In

those claims, Mr. Shayesteh argued that the bank and its employees lost or stole

most of the assets in his safe-deposit box, $7,900 in cash and millions of dollars

worth of diamonds. The district court held Mr. Shayesteh should be estopped

from pursuing these claims because of his prior representation to the court that he

was indigent and therefore entitled to proceed with his direct criminal appeal in

forma pauperis. In reaching its holding, the district court explained that

“[a]llowing Plaintiff to proceed with his present claims, which are founded on the

                                          -9-
allegation that Plaintiff actually held millions of dollars worth of assets in a safe-

deposit box at the time he induced the court to allow him to proceed in forma

pauperis,” would reward “precisely the type of fraud on the court which the

doctrine of judicial estoppel was designed to address.” D. Ct. Order of Jan. 29,

2010 at 12, 13.

      We review a district court’s application of judicial estoppel for an abuse of

discretion, Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir.

2007), and see none here. Under federal law, there are no “inflexible

prerequisites” that must be met or any “exhaustive formula” that can be applied in

judicial estoppel cases, but three factors often do inform the analysis: (1) whether

“a party’s later position [is] clearly inconsistent with its earlier position”; (2)

“whether the party has succeeded in persuading a court to accept that party’s

earlier position, so that judicial acceptance of an inconsistent position in a later

proceeding would create the perception that either the first or the second court

was misled”; and (3) “whether the party seeking to assert an inconsistent position

would derive an unfair advantage or impose an unfair detriment on the opposing

party if not estopped.” New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)

(quotation marks omitted). 3

3
    Contrary to Mr. Shayesteh’s argument otherwise, we assess the propriety of
judicial estoppel under principles of federal, not Utah, law. See Eastman, 493
F.3d at 1156 & n.4 (holding that, after this circuit’s adoption of judicial estoppel
in Johnson v. Lindon City Corp., 405 F.3d 1065, 1068-69 (10th Cir. 2005) federal
                                                                        (continued...)

                                          -10-
      All these factors are present here. First, Mr. Shayesteh’s assertion of

indigence in pursuing his direct criminal appeal is clearly inconsistent with his

allegations in this case that he, at the time, possessed millions. Neither, contrary

to Mr. Shayesteh’s view, is there any requirement under federal principles of

judicial estoppel that the inconsistent positions occur in the same or related

litigation, or that the parties be identical or related. See Eastman, 493 F.3d

at 1153, 1159-60 (enforcing judicial estoppel in personal injury action where

plaintiff failed to disclose the action as an asset in bankruptcy proceeding where

defendants were not creditors). Second, Mr. Shayesteh persuaded the district

court to accept his allegation of indigence, so to accept his current allegations in

this case would not only create the perception that he succeeded in misleading

one of the two courts, it would actually allow him the benefit of having misled

the criminal court. And third, as the district court reasoned, after years of

litigation on the subject, Mr. Shayesteh “ha[s] not produced any evidence besides

his own self-serving statements” that there was anything more in the safe-deposit

box than what the government seized, so “[a]llowing this case to proceed to trial

based solely on [his] testimony [otherwise], while overlooking [his] prior

contradictory statements which were relied upon by the court, would clearly give

3
 (...continued)
principles of judicial estoppel apply to both federal and pendent state-law claims),
abrogating Osborn v. Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199,
1207 & n.11 (1994) (applying state-law principles of judicial estoppel prior to
circuit acceptance of the doctrine).

                                         -11-
[him] an unfair advantage in this litigation.” D. Ct. Order of Jan. 29, 2010, at 12-

13.

      Even more important than the narrow focus on these factors is the fact that

judicial estoppel exists primarily to prevent abuse of the judicial process. And, as

the district court rightly explained, permitting Mr. Shayesteh to pursue claims

involving assets he concealed from the criminal court would provide no incentive

for candor before federal tribunals and would instead only reward dissembling.

This case thus implicates the core concern undergirding, and calls out for

application of, judicial estoppel doctrine. 4

                                           B

      Finally, Mr. Shayesteh takes issue with the district court’s orders granting

defendants’ motion to compel discovery and refusing to strike two exhibits

obtained as a result and attached to defendants’ motion for summary judgment —

the presentence investigation report (PSR) and the personal financial statement

from his criminal case.

4
       The district court also concluded that defendants were entitled to summary
judgment based on the immunity provided to financial institutions for certain
disclosures of financial information under 31 U.S.C. § 5318(g)(3)(A). Defendants
claim that this basis for summary judgment pertains to all of Mr. Shayesteh’s
claims and that Mr. Shayesteh’s failure to contest this ground for summary
judgment in his opening brief works a dispositive waiver with regard to all
claims. Mr. Shayesteh argues that the district court’s alternate basis pertains only
to his RFPA claim and states that by not contesting it, he intended to waive only
that claim on appeal, not his state-law claims. Because we base our affirmance on
the district court’s conclusion that judicial estoppel bars all of Mr. Shayesteh’s
claims, we need not resolve this dispute.

                                          -12-
      Once again, our review here is for an abuse of discretion, see Motley v.

Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995), and we see none in the

district court’s conclusions that the documents fell within the scope of its order

permitting discovery of Mr. Shayesteh’s criminal history, and that

DUCrimR 32-1(c) permits the release of PSRs and other confidential information

upon court order. As to the motion to strike, Mr. Shayesteh has not identified,

nor can we discern, how defendants’ use of these documents affected a substantial

legal right in this case; none of the court’s rulings on appeal here depended on

them. See United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999). To

the extent Mr. Shayesteh claims harm in the continued public availability of the

PSR and references to it in defendants’ summary judgment motion, there is no

indication in the record that he filed a motion to seal. Accordingly, there is

nothing for this court to review on that subject.

                                        ***

      The judgments of the district court are affirmed. In addition, in

No. 10-4051, we (1) grant appellees’ Motion For Leave To File Appellees’

Supplemental Brief; (2) deny appellees’ motion to strike Mr. Shayesteh’s

opposition to the filing of their supplemental brief, which is contained in their

reply to his opposition; and (3) grant Mr. Shayesteh’s application to proceed ifp

as there is no suggestion that he any longer possesses substantial assets. We

remind Mr. Shayesteh that under the Prison Litigation Reform Act, 28 U.S.C.

                                         -13-
§ 1915(b)(1), he is obligated to continue making partial payments of all district

court and appellate filing fees until they are paid in full.


                                                 Entered for the Court



                                                 Neil M. Gorsuch
                                                 Circuit Judge




                                          -14-
