Opinion
No. C 02-3446 JL
December 18, 2003
DISMISSAL
Introduction
Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure. Plaintiff filed no opposition, and his counsel notified the Court that his client did not oppose the motion. Both parties consented to this Court's jurisdiction, as required by 28 U.S.C. § 636(c). The Court issues its decision on the pleadings, as provided by Civil Local Rule 7-6.
Background
Plaintiff brought this action to recover interest on $122,240.58 seized from the Bank of America account, #00333-12026, of Bashir Wada, on September 15, 1994, pursuant to a search warrant issued during a wire fraud and money laundering investigation. See Complaint; Collins Decl. Although there were about 125 victims, the only party who filed a claim in the subsequent abandonment proceeding was Plaintiff. After Plaintiff filed his claim by letter dated November 30, 2001, the Secret Service awarded him $122,270.58 and transferred it to him, less a $30 wire transfer fee. Plaintiff then sued for interest on the amount awarded to him, for the time it languished in Mr. Wada's bank account.
Legal Analysis
Plaintiff fails to establish subject matter jurisdiction of this Court. Although Plaintiff alleges jurisdiction under 28 U.S.C. § 1331, Plaintiff has not pled any violation of the Constitution, a federal statute or treaty. There is no waiver of sovereign immunity to allow Plaintiff to sue the government for money damages for interest on the bank account of a third party. The only possible source of jurisdiction would be the Federal Tort Claim Act, but Plaintiff failed to file an administrative claim first.
The United States, as sovereign, is immune from suit except to the extent that it consents to be sued. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); United States v. Testan, 424 U.S. 392, 399 (1976), citing United States v. Sherwood, 312 U.S. 584, 586 (1941). Where the United States waives sovereign immunity from suit, "Limitations and conditions upon which the Government consents to be sued must be strictly observed, and exceptions thereto are not to be implied." Lehman, 453 U.S. at 161; Kosak v. United States, 465 U.S. 848 (1984). A waiver of sovereign immunity must be expressly stated and strictly construed. Department of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999); Lane v. Pena, 518 U.S. 187, 192 (1996). Moreover, because Federal courts are courts of limited jurisdiction, Plaintiff has the burden of demonstrating a waiver of sovereign immunity. See, e.g., Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986).
Federal Question Jurisdiction Is Inapplicable.
Plaintiff cites 28 U.S.C. § 1331 as providing for waiver of sovereign immunity for money damages in his claim for interest on funds belonging to a third party. That section does not confer subject matter jurisdiction on the Court.
Federal question jurisdiction only applies to cases arising under the Constitution, federal laws or treaties of the United States. 28 U.S.C.A. § 1331 (cases cited therein). Plaintiff does not claim that Defendant violated any constitutional or statutory provision or any federal treaty. Therefore, he cannot rely on 28 U.S.C. § 1331 to confer jurisdiction on this Court for a claim that Defendant owes Plaintiff interest on funds which were in the possession of a third party.
The Court Lacks Jurisdiction Under the FTCA.
The Federal Tort Claims Act ("FTCA") offers limited waiver of sovereign immunity which permits an action for money damages under certain circumstances. 28 U.S.C. § 2671 et seq. Under the FTCA, the United States but not its agencies can be held liable to the same extent as a private person for negligent acts or omissions under state law. 28 U.S.C. § 1346(b). In order to pursue a remedy under the FTCA, however, Plaintiff would have to file a timely administrative FTCA claim. McNeil v. United States, 508 U.S. 106, 113 (1993); 28 U.S.C. § 2675(a). He did not. See Complaint.
Even if Plaintiff had filed a timely claim, it would have been barred by the discretionary function exception to the FTCA. 28 U.S.C. § 2880(a). Under this exception, courts lack jurisdiction under the FTCA: (1) if the challenged conduct involves an element of judgment or choice; and (2) if the conduct implements social, economic or political policy considerations. To the extent that Plaintiff is indirectly attempting to challenge as negligent the decision of the prosecutor to continue to conduct a wire fraud and money laundering investigation (for which reason the Wada funds were originally seized), such a challenge would have been barred by the discretionary function exception.
Conclusion
For the foregoing reasons, Plaintiff fails to establish jurisdiction in this Court. Accordingly, Plaintiffs complaint is dismissed with prejudice. The parties shall bear their own costs. The clerk shall close the file.
IT IS SO ORDERED.