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United States District Court, Southern District of New York

July 21, 2003


The opinion of the court was delivered by: John Keenan, Senior District Judge


Petitioner, Victor Morales, pro se, brings this action for the return of certain property allegedly seized in connection with his arrest on November 6, 1990, by United States Drug Enforcement Agency ("DEA") agents. Specifically, Morales seeks the return of: "1) his passport; 2) army discharge papers; 3) all papers from Ecuador; 4) any and all other papers, documents, identification, or other property of any kind." See Morales' Mot. for Return of Prop. at 3. The Government opposes the motion and moves to dismiss the complaint. For the reasons set forth below, Petitioner's motion is denied. The Government's motion is granted and the complaint is dismissed.


The following facts are drawn from Petitioner's complaint and from the record in the underlying criminal case. On November 5, 1990, Special Agent David M. Gaona applied for and received federal search and arrest warrants. That day, Victor Morales and his wife Gina Morales were arrested for violations of 21 U.S.C. § 841 and 846 by DEA agents. Gina Morales was arrested at approximately 7:00 a.m. at the Morales residence, 1327 Stratford Avenue, Bronx, New York. Gina Morales then telephoned Victor Morales and informed him of the situation and of the New York Drug Enforcement Task Force's ("NYDETF") warrant for his arrest. At approximately 8:00 a.m., Victor Morales surrendered himself to officers of the NYDETF at 1327 Stratford Avenue without incident. See Rafanello Decl., Ex. A.

On that day, Agent Gaona seized certain property. The following reflects, according to the DEA's records, the items seized from the 1327 Stratford Avenue residence: 1) drugs described as 70 glassine envelopes marked "OK" containing white powder and contained in a brown paper bag; 2) miscellaneous jewelry; 3) miscellaneous papers and records; 4) a 1985 yellow Nissan Maxima seized from Gina Morales; and 5) Victor and Gina Morales' passports. See id. DEA records show that the seized documents were maintained by Agent Gaona and later secured in a vault in the DEA's New York District office ("NYDO"). DEA records indicate that between November 14 and 15, 1990, the following property was returned to and signed for by Gina Morales: 1) five social security cards (belonging to Gina, Victor, and Arlene Morales, and Juan and Jeremiah Aceuedo); 2) four passports (belonging to Juan and Jeremiah Aceuedo, and Victor and Arlene Morales); 3) one "I.D. Card New York State" (number M15658-82860-345723-54); 4) three "Montefiore cards" (belonging to Juan and Jeremiah Aceuedo, and Victor Morales) 5) one "Med Card" (belonging to Gina Morales); and 6) two New York State Social Service cards (one of which belonged to Gina Morales). See Rafanello Decl., Ex. C. On December 18, 1990, Victor Morales pled guilty to Count One of a multi-count indictment, which charged that Morales and others conspired to violate federal narcotics laws by distributing and possessing with intent to distribute one kilogram and more of heroin, violating 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). The remaining charges were dismissed with the Government's consent. Victor Morales is currently serving an eighteen (18) year sentence in Elkton Federal Correctional Institution, Lisbon, Ohio to be followed by five (5) years supervised release.

On February 1, 2002, Victor Morales filed a motion in this Court pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking return of property.*fn1 On May 31, 2002, any remaining non-drug evidence associated with the case against Petitioner that had not already been returned to Gina Morales had been destroyed in a routine purge. See Rafanello Decl., Ex. D (cataloging the destruction of "miscellaneous items," "miscellaneous records," "black scorpion stun gun," "orange sifter, small glassines, manitol," and "brown paper bags."). The Government responded to Morales' motion with a letter seeking an order from the Court pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure dismissing the action. This letter also noted that Petitioner never filed an administrative claim with the DEA regarding any matters raised in this action. See Goldman Decl.


Petitioner brings this action pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of property allegedly seized. Rule 41(g) states in part that "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). The Court in which a defendant has been tried has ancillary jurisdiction to decide the defendant's post trial motion for the return of any seized property. Soviero v. United States, 967 F.2d 791, 792 (2d. Cir. 1992). If the criminal proceedings against the defendant have terminated, as here, such a motion should be treated as a civil complaint for equitable relief. Rufu v. United States, 20 F.3d 63 (2d. Cir. 1994), citing Onwubiko v. United States, 969 F.2d 1392, 1397 (2d. Cir. 1992) ("motion pursuant to Fed.R.Crim.P. 41(e) should be treated as civil complaint"). On December 1, 2002, amendments to Rule 41 took effect. Rule 41(g), originally 41(e), was reworded and subsequently reletttered. However, as the advisory committee notes explain, the amendments were "stylistic" in nature. See Gonzalez v. United States, 01 Civ. 10095, 2003 WL 1213172, at *1 n. 1 (S.D.N.Y. Mar. 17, 2003) Thus, these amendments do not affect the substance of petitioner's motion. In addition, "if it is discovered that the Government has destroyed, disposed of, or is unable to locate the property at issue, a district court should exercise its equitable powers to determine if the claimant is entitled to damages." Id. at *2. Because Petitioner moves pro se, this Court must construe his pleadings and papers liberally, Onwubiko, 969 F.2d at 1397, to ascertain whether he can "prove any set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972). Mindful of this standard, the Court turns to the Government's arguments.

I. Statute of Limitations — 41(g)

The Government argues that Petitioner's 41(g) motion should be dismissed because the motion is time barred. This Court agrees. Specifically, 28 U.S.C. § 2401 states in relevant part: a) ". . . every civil action commenced against the United States shall be barred unless the complaint is filed within six (6) years after the right of action first accrues." Prior to Polanco v. United States Drug Enforcement Admin., 158 F.3d 647 (1998), a Petitioner's awareness that his property had been taken was sufficient to trigger the six-year period provided for in § 2401. Under this standard, Petitioner's claim would have accrued on November 6, 1990, the date of his arrest and seizure of the property. The deadline for filing his claim would have been November 6, 1996. Therefore, under this standard, Petitioner's claim would be time barred.

However, in Polanco the Second Circuit rejected the district court's determination that the plaintiff's cause of action accrued upon the seizure of the property. See generally id. In Polanco, the Court held instead that accrual did not begin when plaintiff had reason to know of his property's seizure, but rather accrued upon whichever of the following occurred first: "(1) the close of the forfeiture proceedings, however soon after the seizure, or (2) if no forfeiture proceedings were conducted, at the end of the five year limitations period during which the Government is permitted to bring a forfeiture action, at which time the claimant — without other notice — had reason to know that the forfeiture proceedings had begun (or that the property was being held) without due process." Id. at 654. Here the Government did not institute forfeiture proceedings; therefore § 2401 was not triggered until the end of the five year period, on November 6, 1995. Thus, Petitioner had six years from that date, November 6, 1995, to bring the claim. Even considering the additional five years afforded Petitioner due to the Government's decision not to initiate forfeiture proceedings against him, Petitioner still moves too late, having filed his claim on February 1, 2002, after the November 6, 2001 deadline. His claim is time barred.

As Morales is proceeding pro se, the Court will look for methods other than Rule 41(g) by which he might show that this Court does have jurisdiction over his claim. The Government contends that any relief the Petitioner might seek under the Administrative Procedures Act ("APA"), the Federal Torts Claim Act ("FTCA"), and the Tucker Act, 28 U.S.C. § 1346(a)(2), are similarly time barred, and therefore any such claims must be dismissed for lack of subject matter jurisdiction. See Government's Mem. of Law in Opp. to Def.'s Mot.

The Court agrees that these claims are time barred. Untimeliness, however, is not the only hurdle preventing the success of Morales' claims under any of the aforementioned Acts. See infra.

II. Administrative Procedures Act ("APA")

"[T]he usual basis for injunctive relief against the United States is found in the APA." Hernandez v. United States, 86 F. Supp.2d 331, 336 (S.D.N.Y. 2000). The APA provides for equitable relief only. However, since the property Morales seeks has been destroyed, relief under the APA is impossible. See generally id.

A. The Government's Waiving of Sovereign Immunity and Exceptions To This Waving which Block Relief under the APA.
In 5 U.S.C. § 702, the Government waives sovereign immunity with respect to actions "seeking equitable relief from wrongful agency action." Id. However, there are exceptions to the sovereign immunity waived in 5 U.S.C. § 702, whereby a claim against the Government cannot be made. Three exceptions exist when (1) "the action also seeks monetary relief; (2) there is an adequate remedy at law; or (3) the action is precluded from judicial review by statute or committed by law to agency discretion." See Polanco, 158 F.3d at 652. Clearly Morales' claim would fit within exception (2), referring to an adequate remedy at law because Morales could have filed a motion under 41(g) for return of property. That he has done so in an untimely manner does not qualify as a reason by which a claim under the APA could be made successfully.

B. Six Year Statute of Limitations Bars Any Relief for Petitioner Under APA Claim
The statute of limitations for the APA is six years, the period within which all civil claims against the Government must be filed. See 28 U.S.C. § 2401. Petitioner's motion pursuant to the APA would be time barred by this six year catch-all statute of limitations, regardless of the above deficiencies because to be timely it should have been filed by November 6, 1996.

III. Federal Tort Claims Act ("FTCA")

A. Two Year Statute of Limitations Bars Any Relief for Petitioner Under FTCA
Any claim Petitioner might construct under the FTCA is also untimely. The Act states in relevant part: ". . . a tort claim against the United States shall forever be barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues in regard to the FTCA. . . ." 28 U.S.C. § 2401(b). In addition, "claims under the FTCA accrue when the plaintiff has, or with reasonable diligence should have, discovered the facts critical to his or her injury, whichever is earlier." See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). Given the fact that Petitioner's wife was "advised of the officers' purpose" when they arrived at 1327 Stratford Avenue and that she contacted her husband and "advised him of the situation," Petitioner would have expected the seizure of property. See Rafanello Decl., Ex. A.

The FTCA claim accrued on November 6, 1990. Any action Petitioner could have hoped to pursue under the FTCA must have been filed by November 6, 1992. No claim was timely filed and it is now time barred.

B. Petitioner's FTCA Claim Does Not Comply with Administrative Procedure
Under 28 U.S.C. § 2675, "an action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury . . . caused by negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing. . . ." Id. Here, Petitioner does not contend, nor is there any evidence, that he presented an administrative claim to the DEA for his seized property and that this claim was denied. Petitioner's failure to file would be enough to dismiss an FTCA claim because such a filing is a requirement that is "jurisdictional and cannot be waived." Keene Corp. V. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864 (1983); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (FTCA suits are jurisdictionally barred when there has not been an exhaustion of administrative remedies); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) ("no subject matter jurisdiction where plaintiff failed to first present his claim to the appropriate agency"). Petitioner's failure to adhere to proper administrative procedures requires dismissal of his claim under the FTCA.

C. 28 U.S.C. § 2680 Exempts Petitioner's FTCA Claim Because His Property Was Seized By Law Enforcement
Although the FTCA provides authority for tort actions against the Government, in relevant part, § 2680 exempts "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods of merchandise by any officer of customs or excise or any other law-enforcement officer. . . ." 28 U.S.C. § 2680. The Supreme Court in Kosak v. United States, 465 U.S. 848 (1984), did not conclusively define the phrase law-enforcement officer. When interpreting this phrase, this district follows the "prevailing opinion of the circuit courts . . . and ha[s] construed the `any other law officer language' to federal officers who were not [necessarily] engaged in activities relating to customs or excise." Schreiber v. United States, 96 Civ. 0122, 1997 US Dist. LEXIS 13563, at *15-16 (S.D.N.Y. Sept. 8, 1997). In Schreiber, the court found that the DEA agents fit within the definition of law enforcement officers relevant to the exception in § 2680. Id. (denying claim for the detention and damage of the bowls and vases by the DEA agents finding sovereign immunity there fit within the § 2680 exemption). Thus, as Petitioner's property was seized by the NYDETF and retained by the DEA, his FTCA claim is barred.

D. FTCA Claim Fails Because Petitioner's Property Was Never Handled Negligently
In Kosak, 465 U.S. at 854, the Supreme Court held that the United States has not waived sovereign immunity with respect to "a claim resulting from negligent handling or storage of detained property." In Petitioner's case, however, there does not appear to be any negligent handling of his property. The property, as the record reflects, was maintained "in the custody of Agent Gaona until it was secured at the NYDO." See Vargas Decl., Ex. C. Moreover, the "routine purge" (Id.) of the documents relating to Petitioner's claim should not be characterized as negligent and linked with the FTCA.

IV. Tucker Act

Petitioner cannot bring a claim for damages for the wrongful destruction of his property under the Tucker Act. See 28 U.S.C. § 1346(a)(2). The Tucker Act does not create any substantive right enforceable against the United States for money damages. United States v. Mitchell, 463 U.S. 206, 216 (1983) (citing United States v. Testan, 424 U.S. 392, 398 (1976)). Rather, a "substantive right must be found in some other source of law, such as the Constitution, or any act of Congress, or any regulation of an executive department." 28 U.S.C. § 1491. Previously, the Second Circuit has ruled that under the Tucker Act, district courts have jurisdiction over claims for procedurally inadequate forfeitures. See Boero v. Drug Enforcement, 111 F.3d 301, 305 (2d Cir. 1997); Onwubiko, 969 F.2d at 1398-99. However, even if there were inadequate forfeiture proceedings here, which is not the situation because forfeiture proceedings were never initiated, and that Petitioner was deprived of his property without due process of law, the Supreme Court found that an individual may not "bring a constitutional claim for monetary damages against a federal agency." FDIC v. Meyer, 510 U.S. 471, 484 (1994) (questioning the validity of Onwubiku). Thus, the circuit court here has subsequently found that, in light of FDIC v. Meyer, the Tucker Act does not give this court jurisdiction over claims regarding the unlawful seizure of property. See Polanco, 158 F.3d at 651. Accordingly, any such claim Petitioner hopes to bring under the Tucker Act is barred.

V. Equitable Tolling

Petitioner presents no reason to toll the statute of limitations: "Federal courts have typically extended equitable relief only sparingly. . . ." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Pimental v. United States Drug Enforcement Agency, 99 F. Supp.2d 420, 428 (S.D.N.Y. 2000). In this case, the Court will not toll the statute of limitations for Petitioner.


The Court finds that it lacks jurisdiction over Petitioner's claim for the foregoing reasons, and accordingly dismisses this action. This case is closed and the Court directs the Clerk of the Court to remove it from the Court's active docket.


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