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December 5, 1994

DEKALU ADD RUFU, Petitioner,

I. Leo Glasser, United States District Judge

The opinion of the court was delivered by: I. LEO GLASSER

GLASSER, United States District Judge:

 This is a motion brought pursuant to Federal Rule of Civil Procedure 12(b) (1) to dismiss petitioner's claim for money damages for lack of subject matter jurisdiction.


 Petitioner Dekalu Add Rufu was arrested at JFK International Airport and subsequently convicted of importing heroin into the country. At the time of Rufu's arrest, agents of the Drug Enforcement Administration ("DEA") seized from Rufu two pieces of luggage containing miscellaneous items of personal property. Rufu's post conviction motion for return of that property was denied by this court on June 22, 1993, based on the government's assertion that the property had been returned to Rufu's designated recipient. *fn1"

 On March 28, 1994, the Court of Appeals reversed that decision holding that: (1) Rufu's motion for the return of his property should be treated as a civil complaint for equitable relief; (2) the fact that the government may have destroyed or otherwise disposed of the property sought by Rufu does not preclude the court from awarding damages in lieu of equitable relief; and (3) that at the very least the court was required to take evidence and make factual findings to determine whether the government, in fact, did return all of Rufu's property. The case was, accordingly, remanded for further proceedings. Rufu v. United States, 20 F.3d 63 (2d Cir. 1994).

 The government thereafter petitioned the Circuit Court for a rehearing, seeking clarification of its decision. The court was requested to make clear that if Rufu's property was lost, he could recover money damages from the government only if the government had waived its sovereign immunity from liability in such an action. The motion for a rehearing was denied.

 In its Memorandum of Law in support of this motion ("G Mem."), the government makes reference to Rufu's correspondence with the Court of Appeals in which he seeks money damages in addition to the return of his property which the government has either lost, destroyed, or otherwise disposed of. It is to Rufu's claim that he is entitled to money damages to which this motion to dismiss is addressed.


 The judicial backdrop for this motion and the proceedings preceding it, is, quite clearly, Mora v. United States, 955 F.2d 156 (2d Cir. 1992). In that case, also one by a convicted drug offender for the return of property seized incident to his arrest, the court held that the claim should be treated as a "civil equitable proceeding" and "because the complaint requires equitable relief, the court has power to award damages incident to the complaint." 955 F.2d at 158, 159. The court also held that "the district court should have liberally construed Mora's petition as a complaint under the FTCA" and went on to state that 28 U.S.C. § 2680(c) *fn2" "does not apply where the goods are no longer in the possession of the government, and therefore cannot be regarded as being 'detained.' See Alliance Assurance Co. v. United States, 252 F.2d 529, 533-34 (2d Cir. 1958). " 955 F.2d at 160.

 Alliance was a suit brought to recover the value of goods which disappeared from the possession of United States Customs while being inspected for entry into the country. Two causes of action were alleged, one under the Tucker Act, 28 U.S.C. § 1346(a) (2), for breach of an implied contract of bailment, and the other for negligent loss of goods under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). The government moved to dismiss both causes of action on the ground that subject matter jurisdiction was absent. The district court granted the motion as to the Tucker Act claim and denied it as to the FTCA claim. The government's motion addressed to the FTCA claim was that it was barred by 28 U.S.C. § 2680(c). In rejecting the government's motion, the court held at page 534 that:

In theory, at least, in order to detain, one must possess something to detain. The probable purpose of the exception was to prohibit actions for conversion arising from a denial by the customs authorities or other law enforcement agencies of another's immediate right of dominion or control over goods in the possession of the authorities. An examination of the cases in which the exception was asserted reveals that it is normally used to bar actions based upon the illegal seizure of goods. (Citations omitted). That the exception does not and was not intended to bar actions based on the negligent destruction, injury or loss of goods in the possession or control of the customs authorities is best illustrated by the fact that the exception immediately preceding it expressly bars actions "arising out of the loss, miscarriage, or negligent transmission of mail." 28 U.S.C.A. § 2680(b). If Congress had similarly wished to bar actions based on the negligent loss of goods which governmental agencies other than the postal system undertook to handle, the exception in 28 U.S.C.A. § 2680(b) shows that it would have been equal to the task. The conclusion is inescapable that it did not choose to bestow upon all such agencies general absolution from carelessness in handling property belonging to others. (Emphasis added).

 Mora and Alliance pose two issues for determination in the disposition of this motion. First, is the conclusion reached in Alliance, namely, that 28 U.S.C. § 2680(c) is not applicable, truly inescapable? Second, if that conclusion is escapable and the government has preserved its sovereign immunity by § 2680(c), is that immunity vulnerable to a claim for equitable relief?

 As to the first issue, the Supreme Court, twenty-six years after Alliance, in Kosak v. United States, 465 U.S. 848, 79 L. Ed. 2d 860, 104 S. Ct. 1519 (1984), held that the Circuit ...

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