The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., which waives the United States' sovereign immunity against certain claims sounding in tort, governs the plaintiff's claims against the Smithsonian. See Expeditions Unlimited Aquatic Enters., Inc. v. The Smithsonian Inst., 566 F.2d 289, 296 (D.C. Cir. 1977) (panel opinion reprinted as appendix to opinion en banc) (FTCA applies to the Smithsonian because "the nature of its function as a national museum and center of scholarship, coupled with the substantial governmental role in funding and oversight, make the institution an `independent establishment of the United States,' within the `federal agency' definition" contained within the statute (footnotes omitted)), cert. denied, 438 U.S. 915 (1978); Mac'Avoy v. The Smithsonian Inst., 757 F. Supp. 60, 67-68 (D.D.C. 1991) (replevin and conversion claims against the Smithsonian must comply with the requirements of the FTCA). In order to state a claim under the FTCA, the person attempting to assert it must comply with several strictly construed prerequisites.
This prerequisite is jurisdictional and must be strictly construed." Mac'Avoy v. Smithsonian Inst., 757 F. Supp. 60, 68 (D.D.C. 1991); 28 U.S.C. § 2675(a); see Caidin v. United States, 564 F.2d 284, 286 (9th Cir. 1977). Appellants have not satisfied this prerequisite.
Fed.R.Civ.P. 64(a)-(b); see also Mac'Avoy v. Smithsonian Inst., 757 F.Supp. 60, 67 (D.D.C. 1991) (discussing replevin action for recovery of property allegedly wrongfully detained by the United States).
Under District of Columbia law, "[a] defendant will be liable for conversion if the plaintiff shows that the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal property of another, (4) in denial or repudiation of that person's rights thereto." Gov't of Rwanda v. Rwanda Working Grp. , 227 F. Supp. 2d 45, 62 (D.D.C. 2002) (emphasis added); see alsoMac'Avoy v. The Smithsonian Inst. , 757 F. Supp. 60, 67 (D.D.C. 1991) ("The acquisition of the property is immaterial to a claim in replevin or conversion. The essence of the actions is the wrongful withholding of the property in question."
Replevin actions are classified as torts and are governed by the FTCA. See Mac'Avoy v. The Smithsonian Inst., 757 F.Supp. 60, 67 (D.D.C. 1991). Ms. Jackson concedes that her replevin claim is brought under the FTCA.
Because James' action sounds in tort, the Federal Tort Claims Act ("FTCA") applies. See Mac'Avoy v. The Smithsonian Inst., 757 F. Supp. 60, 67-68 (D.D.C. 1991) (FTCA requirements apply to replevin action against federal agency); Totaro v. Lyons, 498 F. Supp. 621, 627-28 (D. Md. 1980) (same). There is no indication that James complied with the FTCA's requirements.
The "essence" of both a replevin action and a conversion action is the "wrongful withholding of the property in question." Mac'Avoy v. Smithsonian Inst., 757 F. Supp. 60, 67 (D.D.C. 1991). Because a defendant cannot wrongfully withhold property that the plaintiff has abandoned, abandonment must also serve as a complete defense to a replevin action.
Prior to Hunt's request, there was no wrongful withholding, which is required to bring a replevin claim. See generally Mac'Avoy v. Smithsonian Inst., 757 F. Supp. 60, 67 (D.D.C. 1991) (noting that the essence of replevin is "the wrongful withholding of the property in question"). Summary judgment, then, is not warranted on this claim.
As an initial matter, Defendants correctly point out that Bivens actions may only be brought against federal officials in their personal capacity, not in their individual capacity, and may not be brought against the Federal Government. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) ("An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself."); Drake v. F.A.A., 291 F.3d 59, 72 (D.C. Cir. 2002) (stating that it is "well-settled" that Bivens liability cannot be imposed on an agency of the federal government); Mac'Avoy v. The Smithsonian Instit., 757 F. Supp. 60, 69 (D.D.C. 1991) ("the Bivens doctrine does not apply to lawsuits brought against the federal government"); Majhor v. Kempthorne, 518 F. Supp. 2d 221, 244-45 (D.D.C. 2007) ("a Bivens action may be maintained against a defendant only in his or her individual capacity, and not in his or her official capacity") (internal quotation marks and citation omitted). Accordingly, to the extent Plaintiffs attempt to bring their Bivens claims against the United States and the Individual Defendants in their official capacity, such claims must be dismissed for lack of subject matter pursuant to Rule 12(b)(1).
Id. at 56. See also Mac'avoy v. The Smithsonian Institution, 757 F. Supp. 60 (D.D.C. 1991) (holding that the plaintiff's cause of action for replevin under the FTCA accrued when plaintiff first learned that the museum claimed ownership of the disputed artwork). In these cases, the plaintiffs knew that they had been injured and the cause sufficiently to allege, in a manner that would satisfy Fed.R.Civ.P. 11, that the defendant's negligence caused the injury.