United States District Court, N.D. Indiana, Hammond Division
JOHN D. SMITH, Plaintiff,
ATTORNEY GENERAL JEFF SESSIONS, Defendant.
OPINION AND ORDER
P. SIMON UNITED STATES DISTRICT JUDGE
long and tortuous route, John D. Smith's remaining claim
against the federal government in this case is captured in
his first amended complaint against Attorney General Jeff
Sessions, in which Smith seeks monetary compensation for
personal property seized from his home by law enforcement
agents in connection with Smith's prosecution for drug
and firearms crimes. By affidavit, Smith identifies the
property the government took and has never returned as 69
loose diamonds, a coin collection, a custom-made replica 2007
Indianapolis Colts Super Bowl ring, one diamond earring, and
a matching men's and women's diamond wedding band
set. [DE 56-1.] Smith's valuations of these items total
$195, 500, although his prayer for relief uses the figure
$190, 500. [DE 56-1 at -3; DE 56 at 3.] The government has
acknowledged that it “cannot account for certain items
that were seized, ” specifically the envelope of loose
diamonds, the diamond earring and the set of wedding rings.
[DE 66 at 4; see 47 at 3.] The coins and Super Bowl
ring were conveyed to Smith's defense attorney. [DE 47-1
before me is the government's motion to dismiss the first
amended complaint, and Smith's motion for summary
judgment. [DE 65.] Smith's pro se pleading does not
identify any particular legal theory to support his claim for
compensation. In its motion, the government articulates legal
challenges to each of a number of different possibilities.
possibility is the Tucker Act. “Under the Tucker Act, a
federal statute found at 28 U.S.C. §1491(a)(1),
jurisdiction over constitutional claims against the
government for monetary relief in excess of $10, 000 lies
only in the Court of Federal Claims.” Sutton v.
United States, 697 Fed.Appx. 890 (7th Cir.
2015). See also 28 U.S.C. §1346(a)(2) (limiting
the district court's concurrent jurisdiction with the
Court of Federal Claims to actions “not exceeding $10,
000 in amount.”) Given Smith's valuation of the
items at almost $200, 000, this court has no jurisdiction
over a claim under the Tucker Act for the loss of the
property. So the Tucker Act claim will be dismissed for lack
of jurisdiction but the dismissal will be without prejudice
so Smith may seek relief in the Court of Federal Claims.
See e.g. Lennon v. City of Carmel, Indiana, 865 F.3d
503, 509 (7th Cir. 2017) (“When a court
dismisses a case for lack of jurisdiction, the dismissal must
be without prejudice.”) I take no position on the
validity of the merits of Smith's claim under the Tucker
possibility is a claim under the Federal Tort Claims Act, 28
U.S.C. §1346(b)(1), which gives the district courts
exclusive jurisdiction of civil claims against the United
States for money damages “for injury or loss of
property...caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment....” But
this avenue is foreclosed by an exception to the FTCA for
loss of property seized by law enforcement officers in the
performance of their duties. The exception is stated in 28
U.S.C. §2680(c), applicable to “[a]ny claim
arising in respect of...the detention of any goods,
merchandise, or other property by...any other law enforcement
officer[.]” See Kosak v. United States, 465
U.S. 848, 854 (1984) (FTCA claim barred for negligent
handling or storage of property in the custody of the Customs
is an exception to the exception, often called
“re-waiver, ” that applies if certain criteria
are met, as provided in the Civil Asset Forfeiture Reform Act
of 2000, in 28 U.S.C. 2680(c). The four requirements for
re-waiver generally describe a failed attempt at forfeiture -
the property was seized for forfeiture, but the
claimant's interest in the property was not forfeited,
remitted or mitigated, and the claimant was not ultimately
convicted. §2680(c)(1)-(4). The government contends that
Smith's claim does not qualify for re-waiver because the
property now at issue - jewelry and coins - was not seized
for the purpose of forfeiture and because Smith was
convicted. The Seventh Circuit has found re-waiver not to
apply where, like here, the seized property was not
specifically identified for forfeiture in the indictment, and
no forfeiture proceedings were ever instituted against the
property. Pearson v. United States, 373 Fed.Appx.
622, 624 (7th Cir. 2010). Smith has not
demonstrated that CAFRA's re-waiver provision applies so
as to permit him to proceed under the FTCA.
event, the government also points out that Smith cannot
proceed with a claim under the FTCA because he has not filed
an administrative claim with the seizing agency, which is a
prerequisite to bringing a claim against the government for
money damages for loss of property caused by the negligent or
wrongful act or omission of a government employee. 28 U.S.C.
§2675(a). To this observation, Smith makes no reply. For
these reasons, Smith does not have a viable claim under the
Federal Tort Claims Act. Although the Supreme Court has
acknowledged that the law enforcement seizure exception
“denies an effectual remedy to many persons whose
property is damaged through the tortious conduct of customs
officials, ” it noted that the concern “is
properly addressed to Congress, ” and that the Court
must apply the statute as it is written. Id. at 862.
See also Parrott v. United States, 536 F.3d 629, 636
(7th Cir. 2008).
other possibilities are addressed in the government's
motion. The government argues that the “only damages
remedy for the loss of property in these types of situations
is administrative, specifically, the submission of a claim to
the Attorney General of the United States pursuant to 31
U.S.C. §3724(a).” [DE 66 at 1.] That statutory
provision authorizes the Attorney General to settle, for not
more than $50, 000 in total, claims for damage to or loss of
privately owned property “caused by an investigative or
law enforcement officer...who is employed by the Department
of Justice...that may not be settled under” the FTCA.
This authority does not support a claim brought by way of a
lawsuit. Furthermore, such a claim “may be allowed only
if it is presented to the Attorney General within one year
after it accrues, ” so Smith may already be too late
for a administrative claim under §3724. Id.
a constitutional claim for loss of the property without due
process is foreclosed by the availability of an adequate
statutory remedy. Hudson v. Palmer, 468 U.S. 517,
533 (1984) (due process was not violated by government
official's intentional deprivation of property, provided
that a meaningful post-deprivation remedy was available).
Section 3724(a) is such a remedy for the unauthorized acts of
a federal employee resulting in the destruction of personal
property. Marulanda v. U.S. Marshals Service, 467
Fed.Appx. 590, 591 (9th Cir. 2012) (affirming
summary judgment in favor of federal agents in action under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 402 U.S. 388 (1971)).
short, Smith's first amended complaint must be dismissed
because he demonstrates no legal theory supporting a claim
for money damages based on the loss of his seized property.
Smith's motion (filed in lieu of a memorandum in
opposition to the motion to dismiss) does not offer argument
defeating any of these legal bases for the dismissal of his
complaint. Smith's motion will be denied.
recognize that the facts would appear to be on
Smith's side, in that the government acknowledges being
unable to account for certain property it seized from Smith.
[That, of course, is not to say that I accept Smith's
estimate of the property's value. I express no view on
that point.] But in order to obtain a judgment in his favor,
Smith must meet the requirements of a particular legal cause
of action, as well as have the facts to support it. And for
each of four possible legal bases for bringing such a
lawsuit, the government has demonstrated one or more legal
reasons defeating the claim at this time in this forum.
government's Motion to Dismiss Amended Complaint [DE 65]
John D. Smith's Motion Pursuant to Fed.R.Civ.P. 54(b) and
Summary Judgment under ...