Opinion
03 CV 3769 (SJ).
November 17, 2004
JONATHAN ELFAND, Otisville, NY, Pro Se.
ROSLYNN R. MAUSKOPF, United States Attorney Eastern District of New York, Brooklyn, NY, By: Artemis Lekakis, Esq., Assistant U.S. Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Currently before this Court are Jonathan Elfand's ("Petitioner's") Motion for the Return of Property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, Petitioner's Amendment to the Rule 41(g) Motion, Petitioner's letter Motion for the Return of Property located at 260 Moore Street in Brooklyn, New York ("Moore Street property"), Petitioner's letter Motion for Summary Judgment (collectively, "Petitioner's Motions"), and the United States of America's ("Government's") Motion to Dismiss or Transfer the Action ("Government's Motion").
Rule 41(g) provides, in relevant part, "A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized." Fed.R.Crim.P. 41(g).
Petitioner alleges that his property was seized absent valid civil forfeiture proceedings and, alternatively, that the forfeitures violated the notice requirements of the Due Process clause. He seeks the return of his property or its monetary equivalent. The Government argues that this Court lacks subject matter jurisdiction to award Petitioner money damages for the destruction of his forfeited property or, in the alternative, that Petitioner's Motion for the Return of (the California) property should be transferred to the Southern District of California because that is the district in which Petitioner's property was seized. For the reasons set forth below, the Government's motion is GRANTED and the Petitioner's motions are DENIED.
FACTUAL BACKGROUND
I. California Property
Sometime in May 1998 agents of the United States Drug Enforcement Administration ("DEA") confiscated property in the possession of Erika Greenfeld and belonging to Petitioner. (Pet'r Mot. at 1). The seizure occurred in San Diego, California and, according to Petitioner, included a convertible BMW automobile, over $30,000 in United States currency, and a carrying bag which contained a timepiece and gold bracelet. (Id.) Notice of the seizure was published in USA TODAY on June 10, June 17, and June 24, 1998. (Resp't Mot. at 2.) No claims were filed for the property within twenty days from the first date of publication of the advertisement. (Id.) On August 15, 1998, the San Diego office of the DEA administratively forfeited the United States currency. (Id.) The automobile was administratively forfeited by the DEA's San Diego office on September 21, 1998. (Id.) The seized items all have been destroyed, sold, or transferred and, evidently, are no longer available for return. (Id.)
According to the Government, there are no DEA records relating to the seizure of the watch or bracelet. (Resp't Mot. at n. 2.) However, the Government concedes that the DEA seized a carrying bag and all of its contents. (Id. at 1.) In addition, the Government values the exact amount of United States currency at $28,020.85. (Id. at 2.)
On October 26, 1998 the DEA's San Diego office transferred or deposited the currency. (Resp't Mot. at 2.) On August 11, 1999 it sold the BMW automobile. (Id.) On October 4, 2000, the carrying bag and all of its contents were destroyed. (Id.)
II. New York Property
In a letter dated June 18, 2004 Petitioner asserted that he is the owner of the Moore Street property which was forfeited by the Government. The Government strongly contests Petitioner's ownership claim and has provided documentary evidence which suggests that Petitioner is, in fact, not the owner of said property. In any event, in June 2002 this Court issued a forfeiture decree for the Moore Street property and said property was sold by the United States Marshals Service. Thus, the Moore Street property is no longer available for return.
Specifically, the Government attached copies of the February 10, 1995 quitclaim deed transferring the ownership rights of the Moore Street property from 260 Moore Street Corp. to Lobert, Inc.,(Resp't Mot. Lekakis Decl. Ex. D), September 24, 1998 Contract of Sale of the Moore Street property from Lobert, Inc. by Albert DeGolas to Joshua Guttman, (id. Ex. C), and the June 2002 Stipulation of Settlement between Lobert, Inc. and the Government in United States of America v. Certain Real Property and Premises Known as 260 Moore Street, Brooklyn, New York, and All Proceeds Traceable Thereto, No. 98 CV 5901 (E.D.N.Y.), (id. Ex. F).
DISCUSSION
I. Standard for Motion to Dismiss for Lack of Subject Matter Jurisdiction
The standard for a motion to dismiss is now well settled. Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a claim when the federal court "lacks jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The plaintiff must then prove the Court's jurisdiction by a preponderance of the evidence.
II. Equitable Jurisdiction, Sovereign Immunity, and Rule 41(g)
Given that there are no criminal proceedings currently pending against Petitioner, Petitioner's Motions are construed as a civil action in equity. See Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992) (noting "where no criminal proceedings against the movant are pending or have transpired, a motion for the return of property is `treated as [a] civil equitable proceeding even if styled as being pursuant to Fed.R.Crim.P. 41(e) [now Rule 41(g)]") (internal citations omitted).
Petitioner seeks the monetary equivalent of his property forfeited by the Government. However, "[e]quitable jurisdiction does not permit courts to order the United States to pay money damages when, for whatever reason, property is not available for Rule 41(g) return. Such monetary awards are barred by sovereign immunity." Adeleke v. United States of America, 355 F.3d 144, 151 (2d Cir. 2004). In the preceding case, the Second Circuit concluded that "Rule 41(g), which simply provides for the return of seized property, does not waive the sovereign immunity of the United States with respect to actions for money damages relating to such property." Id. Therefore, because sovereign immunity bars district courts from awarding money damages for property that cannot be returned under Rule 41(g), in the absence of the Government's consent to be sued, district courts lack subject matter jurisdiction over such equitable claims for money damages. Petitioner's Motions fail to distinguish Adeleke. As a result, Petitioner fails to meet his burden to prove subject matter jurisdiction by a preponderance of the evidence.
Mr. Adeleke's property was seized by United States Customs officials upon his arrest at John F. Kennedy International Airport on drug importation charges. The property was stored at 6 World Trade Center and was destroyed in the attacks of September 11, 2001. Subsequent to Mr. Adeleke's conviction, he brought an action pursuant to Federal Rule of Criminal Procedure 41(e) — now Rule 41(g) — for the return of property seized by the government or for money damages to compensate for the destruction of that property. The district court concluded that, because the property had been destroyed by the unforeseen actions of third parties and not by any act or omission of the government, equity did not warrant an award of money damages.
On appeal, the Second Circuit affirmed the district court's judgment of dismissal on the ground that, "Adeleke's equitable claim for money damages should have been dismissed for lack of subject matter jurisdiction because sovereign immunity bars a federal court from ordering the United States to compensate for property that cannot be returned pursuant to Rule 41(g). Sovereign immunity similarly deprived the district court of jurisdiction over Adeleke's due process claim." Id. at 147.Adeleke is analogous to the case currently before this Court. In light of the controlling law in the Second Circuit, this Court dismisses Petitioner's claims for lack of subject matter jurisdiction. III. Jurisdiction Under the Administrative Procedure Act ("APA")
Consequently, this Court does not reach Petitioner's Due Process claim.
Because Petitioner seeks money damages to compensate for the loss of his property, his claims are barred by § 702 of the Administrative Procedure Act. Section 10(a) of the APA provides in relevant part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702 (emphasis added).
The Supreme Court instructs, in Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999), that although § 702 waives the Government's immunity from actions seeking relief "other than money damages," the waiver must be strictly construed, in terms of its scope, in the sovereign's favor and must be "unequivocally expressed" in the statutory text.
Bowen v. Massachusetts, 487 U.S. 879 (1988), held that Congress employed the phrase "other than money damages" to distinguish between specific relief and compensatory, or substitute, relief. The Supreme Court stated, "The term `money damages,' 5 U.S.C. § 702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies `are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.'" Id. at 895 (internal citations omitted). Petitioner now seeks money damages as compensation for the loss resulting from the Government's destruction, sale, and/or transfer of his property. Consequently, as a form of substitute and not specific relief, Petitioner's claim falls beyond the scope of § 702's waiver of sovereign immunity.
IV. Res Judicata
On September 28, 1998 the United States Marshals Service served Petitioner, via certified mail, with the complaint and warrant inUnited States of America v. Certain Real Property and Premises Known as 260 Moores Street, Brooklyn, New York, and All Proceeds Traceable Thereto, No. 98-CV-5901 in the Eastern District of New York ("Moore Street Action"). A return receipt was signed and dated on September 30, 1998. Petitioner failed to assert his claims of ownership in the above-named case. On June 12, 2002, this Court ordered the forfeiture of the Moore Street property.
Petitioner now claims he never received any notice of the Moore Street Action. However, this Court credits the Government's assertion that a complaint and warrant was served on Petitioner given that a return receipt was signed and mailed. Absent a showing by Petitioner that the Government's proof of service is invalid or incredible in some way, this Court declines to raise that issue sua sponte.
The Supreme Court has made clear that, "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case." Federated Dep't Stores v. Moitie, 452 U.S. 394, 398 (1981). In the instant matter, Petitioner's claims of ownership of the Moore Street property could have been litigated in the Moore Street Action. This Court's judgment that the Moore Street property be forfeited was final and was not appealed. Therefore, Petitioner's attempt to relitigate the Moore Street action is barred by res judicata.
This Court is sympathetic to the difficulties inherent in pro se litigation. However, as the Supreme Court has long recognized, "public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Traveling Men's Ass'n, 283 U.S. 522, 525 (1931). Furthermore, "[t]here is simply `no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata.'" Federated Dep't Stores, 452 U.S. at 401 (quoting Heiser v. Woodruff, 327 U.S. 726, 733 (1946)). Accordingly, the principle of res judicata precludes this Court from addressing Petitioner's claim for the return of the Moore Street property.
CONCLUSION
For the foregoing reasons, the Government's Motion to Dismiss is GRANTED and Petitioner's Motions are DENIED.
SO ORDERED.