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LEVITT v. F.B.I.

October 8, 1999

JAMES R. LEVITT, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Plaintiff James R. Levitt claims to be the owner of a Henry Moore sculpture which was seized by the government in connection with a criminal matter and remains in its possession. He commenced this action against the Federal Bureau of Investigation ("FBI"), the United States Attorney for this district in her official capacity, and one Samuel W. Eden. The first claim for relief seeks a declaration that Levitt is the rightful owner of the sculpture and judgment directing that it be turned over to him. The second purportedly alleges conversion of the sculpture by the government and seeks an order directing the FBI and the United States Attorney to turn the sculpture over to him or, in the alternative, damages. The third, brought on the theory of replevin, also demands judgment against the FBI and the United States Attorney for possession of the sculpture.

Three motions now are before the Court: (1) Eden's motion to dismiss for lack of subject matter jurisdiction and lack of jurisdiction over his person, (2) the federal defendants' motion to dismiss for lack of subject matter jurisdiction, and (3) Levitt's motion for leave to amend to add additional legal theories on which he claims that the Court has subject matter jurisdiction.

Facts

The complaint, which is quite brief, alleges that Levitt is the owner of a Henry Moore maquette statue entitled Seated Woman, which is said to be worth $40,000. In a manner unexplained in the complaint, the sculpture wrongfully came into the possession of one James J. Holmes, and Eden acquired it from Holmes. In 1997, the FBI and the United States Attorney seized the sculpture from Eden and hold it to this day, refusing Levitt's demands for possession.

The papers before the Court amplify these allegations and tell a slightly different tale. The government alleges that Levitt in 1996 gave the sculpture to an art dealer named Mangel who in turn gave it to Holmes. Holmes, a New York gallery operator who was engaged in fraudulent activities and who this year pleaded guilty in this Court to mail and wire fraud,*fn1 sold it to a co-owner of Atlanta Art Gallery who in turn sold it to Eden. Eden ultimately turned the sculpture over to the FBI.

Levitt commenced this action in January 1999. The government initially filed a counterclaim for interpleader, disclaiming any ownership interest in the sculpture and requesting that the Court determine the respective interests of Levitt and Eden. After concluding, however, that venue over the interpleader claim was improper in this district, the government withdrew its counterclaim, although it has informed the Court that it intends to file an action for interpleader in an appropriate district. Levitt, for his part, has withdrawn his demand for damages against the FBI and the United States Attorney.

Discussion

The complaint alleges that the Court has subject matter jurisdiction because "the matter involves the United States government and agents, agencies thereof, as well as parties who are residents of different states with the amount in controversy inclusive of interest, costs and ongoing damages in exceeding [sic] $75,000."*fn2 In response to defendants' challenge to the existence of subject matter jurisdiction, Levitt has thrown up a confusing array of arguments, some in his memoranda and some in his motion for leave to amend the complaint. At this point, he appears to allege the existence of subject matter jurisdiction on the basis of (1) the alleged presence of a federal question,*fn3 (2) the presence of the United States as a party,*fn4 (3) diversity of citizenship,*fn5 (4) equitable jurisdiction,*fn6 and (5) the Administrative Procedure Act.*fn7 In the interests of resolving the issue with a minimum of procedural intricacy, the Court treats all of his contentions, wherever they appear, as having been asserted in the complaint.*fn8

Federal Question

The complaint does not assert federal question jurisdiction at all.*fn9 Plaintiff now contends, however, that the FBI, the U.S. Attorney, and the United States*fn10 are retaining property that belongs to him in violation of the Fifth Amendment.*fn11

The federal question statute*fn12 grants federal district courts original jurisdiction over all civil actions arising under the Constitution. Osborn v. Bank of United States*fn13 and its progeny teach that an action arises under the Constitution when a "title or right . . . may be defeated by one construction of the constitution . . . and sustained by the opposite construction. . . ."*fn14 Levitt's claim, therefore, "arises under" the Fifth Amendment because a construction of that provision favorable to him would result in his having the right to possession of the statue, whereas an adverse construction would produce the opposite result. In consequence, Levitt's claim that the FBI and the U.S. Attorney, acting on behalf of the United States, are depriving him of property in violation of his Fifth Amendment rights comes within the federal question statute.

Sovereign Immunity

The United States enjoys sovereign immunity and may not be sued without its consent.*fn15 Actions against federal officers and agencies based on conduct undertaken on behalf of the ...


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