Julio A. Ramos v. United States

In the United States Court of Federal Claims

No. 12-859 C

(Filed August 1, 2013)

* * * * * * * * * * * * * * *

JULIO A. RAMOS, *

* Takings; 28 U.S.C. § 2501

Pro Se Plaintiff, * (2006); RCFC 12(b)(1); RCFC

* 12(b)(6); Untimely Claim;

v. * Confiscation of Property at Time

* of Criminal Arrest Not a Taking

THE UNITED STATES, * for Public Use; Res Judicata;

* Pro Se.

Defendant. *

* * * * * * * * * * * * * * *

Julio A. Ramos, pro se plaintiff.

Ryan M. Majerus, United States Department of Justice, with whom were

Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson,

Director, Franklin E. White, Jr., Assistant Director, Washington, DC, for

defendant. Letitia B. Pinkney, Office of Chief Counsel, Drug Enforcement

Administration, of counsel.

__________________________

OPINION

_______________________

Bush, Judge.

The court has before it defendant’s motion to dismiss this suit for lack of

jurisdiction and for failure to state a claim upon which relief may be granted.

Defendant’s motion has been fully briefed.1 For the reasons stated below,

defendant’s motion, filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of

the United States Court of Federal Claims (RCFC), is granted.

BACKGROUND2

Mr. Ramos was indicted for drug trafficking in 1999 in Texas but was then

living in the Dominican Republic. Compl. ¶¶ 7-8. The United States and the

Dominican Republic cooperated in arresting Mr. Ramos and seizing his assets. Id.

¶¶ 9-13. His assets included vehicles, jewelry, electronics, and real property which

remained in the custody of the Dominican authorities. Id. ¶¶ 13-14. Mr. Ramos

was extradited to the United States, stood trial, was convicted and is currently

serving a 405-month sentence of imprisonment. Id. ¶¶ 15-16. The United States

did not pursue forfeiture of Mr. Ramos’s seized assets. Id. ¶ 17.

In 2002, Mr. Ramos “began litigating” the return of his seized assets in a

federal district court in Texas. Compl. ¶ 18; see also Def.’s Mot. App. at A001-

A008. The motion for return of seized property was filed on August 26, 2002

under Federal Rule of Criminal Procedure 41(e), now codified at Fed. R. Crim. P.

41(g). Def.’s Mot. App. at A001. The motion was denied on September 13, 2002,

as was Mr. Ramos’s related motion for relief from judgment, on July 13, 2005. Id.

at A014, A019-A022. A second motion for relief from judgment, filed December

19, 2005, was denied on January 3, 2006. Id. at A023-A032. The trial court’s

denial of Mr. Ramos’s request for the return of his seized property was affirmed by

1

/ The parties’ briefs include Defendant’s Motion to Dismiss (Def.’s Mot.), Plaintiff’s

Response to Defendant’s Motion to Dismiss (Pl.’s Resp.), Defendant’s Reply (Def.’s Reply), and

Plaintiff’s Notice of Filing of Supplemental Documents (Pl.’s Resp. Supp.).

2

/ The facts recited here are taken from the complaint and are uncontested for the

purposes of deciding defendant’s motion. See Def.’s Mot. at 2 (“For the purposes of this motion,

we assume, as we must, that all allegations in the complaint are true.”). Additional facts are

provided by court records relied upon by the parties. In a challenge to a complaint for failure to

state a claim, court documents are public records which, if undisputed, may be considered

without converting a motion to dismiss under RCFC 12(b)(6) into a motion for summary

judgment. See, e.g., Wagstaff v. United States, 105 Fed. Cl. 99, 103 n.1 (2012) (citing

Biomedical Patent Mgmt. Corp. v. Cal. Dep’t of Health Servs., 505 F.3d 1328, 1331 n.1 (Fed.

Cir. 2007); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994)); Boye v. United

States, 90 Fed. Cl. 392, 416 (2009) (citations omitted), aff’d, 413 F. App’x 239 (Fed. Cir. 2011).

2

the United States Court of Appeals for the Fifth Circuit. Id. at A033-A036; see

Ramos v. United States, 212 F. App’x 348 (5th Cir. 2007) (Ramos I).

Next, on July 27, 2010, Mr. Ramos filed a civil suit in the same Texas

district court for the return of his seized property, again citing Federal Rule of

Criminal Procedure 41(e). Def.’s Mot. App. A037-A044. In this suit, Mr. Ramos

added a claim seeking damages for the “Deprivation of Ramos’ property,” citing

the Fifth Amendment of the United States Constitution. Id. at A038. According to

this suit, the actual value of the seized property in the Dominican Republic was

$51,546,000. Id. at A039.

Mr. Ramos’s civil suit was dismissed, on res judicata grounds, on December

19, 2010. Def.’s Mot. App. at A050-A052. Mr. Ramos again filed a motion for

relief from judgment, which was denied on April 5, 2011. Id. at A053-A057. The

dismissal of the civil suit was upheld by the Fifth Circuit on December 21, 2011.

Id. at A058-A064; see Ramos v. United States, 455 F. App’x 424 (5th Cir. 2011)

(Ramos II).

Aside from the criminal and civil proceedings in district court and appeals to

the Fifth Circuit, Mr. Ramos has pursued other avenues of recourse in his quest to

retrieve the property seized in the Dominican Republic or to obtain compensation

for his confiscated property. By letter dated May 14, 2007, the United States

Embassy, acting in response to a court order apparently obtained by Mr. Ramos,

informed the Dominican authorities that the United States had no interest in the

seized property and presented a request that the property be returned to Mr. Ramos,

if appropriate. Compl. ¶ 21, Ex. B. Mr. Ramos, on March 20, 2012, sent a

document titled “Demand for Compensation for Property Seized/Converted” to the

Attorney General of the United States, the Dominican Republic Embassy, and the

Drug Enforcement Administration. Compl. ¶ 23, Ex. A (Federal Tort Claim Pages

1-3). The amount claimed in the “Demand” is the same amount claimed in Mr.

Ramos’s civil suit in the district court – $51,546,000. Compl. ¶ 23, Ex. A (Federal

Tort Claim Page 1). Finally, in documents dated July 25, 2005, October 17, 2007,

January 8, 2008, July 22, 2008, and May 8, 2013, plaintiff appears to have made

efforts to obtain relief from Dominican authorities. See generally Pl.’s Resp. Supp.

Mr. Ramos asserts he has been notified by the Dominican authorities that his

seized property is no longer “traceable.” Compl. ¶ 22. Plaintiff also states that he

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has had no response from the United States as to his demand for compensation for

the value of the seized property. Id. ¶ 24. On December 10, 2012, plaintiff filed a

three-count complaint in this court, asserting negligent “directed” seizure of his

property by the United States; conversion of his property by the United States; and

a taking of his property by the United States.3 Id. at 8-9. Defendant raises several

challenges to the claims in the complaint which will be discussed in the analysis

section of this opinion.

DISCUSSION

I. Standards of Review

A. Pro Se Litigants

The court acknowledges that Mr. Ramos is proceeding pro se, and is “not

expected to frame issues with the precision of a common law pleading.” Roche v.

United States Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs

are entitled to a liberal construction of their pleadings. See Haines v. Kerner, 404

U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be

held to “less stringent standards than formal pleadings drafted by lawyers”).

Accordingly, the court has examined the complaint and briefs thoroughly and has

attempted to discern all of plaintiff’s legal arguments.

B. RCFC 12(b)(1)

In rendering a decision on a motion to dismiss for lack of subject matter

jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed

factual allegations to be true and construe all reasonable inferences in favor of the

plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other

grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army

& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff

bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v.

United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors

3

/ Plaintiff’s request for a jury trial must necessarily be rejected because there is no right

to a jury trial in this court and this court does not conduct trials by jury. E.g., Webster v. United

States, 74 Fed. Cl. 439, 444 (2006) (citing United States v. Sherwood, 312 U.S. 584, 587 (1941)).

4

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a

preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If

jurisdiction is found to be lacking, this court must dismiss the action. RCFC

12(h)(3).

The court may inquire into evidence outside the pleadings to establish

jurisdictional facts. Reynolds, 846 F.2d at 747; Rogers v. United States, 95 Fed.

Cl. 513, 514-15 (2010) (citations omitted). “Indeed, the court may, and often must,

find facts on its own.” Martinez v. United States, 48 Fed. Cl. 851, 857 (2001)

(citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed. Cir.

1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)), aff’d in

relevant part, 281 F.3d 1376 (Fed. Cir. 2002). When the government has asserted

that a claim is barred by a jurisdictional statute of limitations, the plaintiff bears the

burden of proving the timeliness of his suit. See, e.g., Alder Terrace, 161 F.3d at

1377 (“As the plaintiff in the underlying suit, the burden of establishing

jurisdiction, including jurisdictional timeliness, must be carried by the [plaintiff].”

(citing McNutt, 298 U.S. at 189)).

C. RCFC 12(b)(6)

When considering a motion to dismiss under RCFC 12(b)(6), “the

allegations of the complaint should be construed favorably to the pleader.”

Scheuer, 416 U.S. at 236. The court must inquire, however, whether the complaint

meets the “plausibility” standard described by the United States Supreme Court,

i.e., whether it adequately states a claim and provides a “showing [of] any set of

facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 560, 563 (2007) (citations omitted). It is well-settled that

a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by

the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002).

II. Tucker Act Jurisdiction

This court’s jurisdiction, based on the Tucker Act, 28 U.S.C. § 1491(a)(1)

(2006), is a grant of

jurisdiction to render judgment upon any claim against

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the United States founded either upon the Constitution, or

any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.

The Tucker Act, however, “does not create any substantive right enforceable

against the United States for money damages. The Court of Claims has recognized

that the Act merely confers jurisdiction upon it whenever the substantive right

exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). A

plaintiff coming before the United States Court of Federal Claims, therefore, must

also identify a separate provision of law conferring a substantive right for money

damages against the United States. Todd v. United States, 386 F.3d 1091, 1094

(Fed. Cir. 2004) (citing Testan, 424 U.S. at 398).

III. Analysis

A. This Court Has No Jurisdiction over Tort Claims

The first two counts of the complaint, which allege negligent “directed”

seizure and conversion of property by the United States, Compl. at 8, sound in tort.

E.g., Johnson v. United States, 105 Fed. Cl. 85, 93 (2012) (“Plaintiff’s allegation of

negligence is an archetypal tort claim.”) (citation omitted); Republic of New

Morocco v. United States, 98 Fed. Cl. 463, 468 (2011) (“Claims alleging

conversion or destruction of property . . . sound in tort.”) (citation omitted). These

two tort claims are not within this court’s jurisdiction. See 28 U.S.C. § 1491(a)(1)

(stating that the court’s jurisdiction is limited to cases “not sounding in tort”);

Keene Corp. v. United States, 508 U.S. 200, 214 (1993) (noting that “tort cases are

outside the jurisdiction of the Court of Federal Claims”); Brown v. United States,

105 F.3d 621, 623-24 (Fed. Cir. 1997) (noting that this court “lacks jurisdiction

over tort actions against the United States”). Because counts one and two of the

complaint sound in tort, these claims must be dismissed for lack of subject matter

jurisdiction.

B. Plaintiff’s Takings Claim is Time-Barred

There is no dispute that this court possesses subject matter jurisdiction over

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takings claims against the United States. E.g., Moden v. United States, 404 F.3d

1335, 1341 (Fed. Cir. 2005). Defendant asserts, however, that Mr. Ramos’s

takings claim, presented in count three of the complaint, is barred by the court’s

six-year statute of limitations, 28 U.S.C. § 2501 (2006), thus defeating this court’s

jurisdiction over the sole remaining claim in this suit.4 Def.’s Mot. at 8. If Mr.

Ramos’s takings claim accrued before December 10, 2006, his suit, filed on

December 10, 2012, is barred by § 2501.

The parties disagree as to when Mr. Ramos’s takings claim accrued.

Defendant argues that the date of the property seizure in the Dominican Republic,

August 13, 1999, marks the accrual of plaintiff’s takings claim. Def.’s Mot. at 8.

Plaintiff first argues that his takings claim accrued no earlier than March 19, 2007,

the date of the district court order and the date on which, in plaintiff’s view, the

United States “relinquished an interest in the [seized] property.” Pl.’s Resp. at 2-3.

Although it is not clear from plaintiff’s response brief, plaintiff might also contend

that the letter from the American Embassy, dated May 17, 2007, marks the accrual

date of his claim, because this letter “finally” relinquished any rights the United

States could assert in the seized property. Id.

The court finds that Mr. Ramos’s takings claim accrued no later than August

26, 2002, when he filed a motion for the return of his seized property in the federal

district court.5 It is clear from the face of his motion that in August of 2002 Mr.

Ramos knew all of the facts of the 1999 seizure that would be needed to support

his claim for a taking. See Def.’s Mot. App. at A001-A008. Because plaintiff

knew, on August 26, 2002, all of the necessary facts regarding the government

action he challenges in this suit, his takings claim accrued no later than August 26,

2002. See, e.g., Hopland Band of Pomo Indians v. United States, 855 F.2d 1573,

1577 (Fed. Cir. 1988) (“[A] cause of action against the government has ‘first

accrued’ only when all the events which fix the government’s alleged liability have

occurred and the plaintiff was or should have been aware of their existence.”

4

/ Defendant does not accept that the complaint presents a proper takings claim, even if

the jurisdictional bar of § 2501 could be overcome. See infra.

5

/ The Fifth Circuit recognized in Ramos II that Mr. Ramos, as of August 26, 2002, could

have asserted a claim for compensation for his seized property. 455 F. App’x at 427 (“When

Ramos initially sought the return of his property, he could have also brought a claim for damages

related to the seizure.”).

7

(citing Kinsey v. United States, 852 F.2d 556, 557 n.* (Fed. Cir. 1988))).

Because plaintiff’s takings claim was filed more than ten years after it

accrued, it is time-barred by § 2501. This court’s six-year limitations period is

jurisdictional and may not be equitably tolled. John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 133-34 (2008). For this reason, count three of the

complaint must also be dismissed pursuant to RCFC 12(b)(1).

C. In the Alternative, Count Three of the Complaint Also Fails to

State a Claim

Defendant, pursuant to RCFC 12(b)(6), challenges the sufficiency of the

complaint regarding plaintiff’s takings claim on several grounds. Should the court

have erred in its analysis of the accrual date of plaintiff’s takings claim, the court

also addresses two of defendant’s arguments here for the sake of judicial economy.

First, defendant contends that seizure of property in furtherance of a criminal

prosecution cannot be a taking. Def.’s Mot. at 12-14. Second, defendant argues

that plaintiff’s taking claim is barred by the doctrine of res judicata. Id. at 14-15.

The court agrees with both of these arguments, as discussed below.6

1. Seizures in Criminal Investigations Do Not Give Rise to

Takings Claims

This court is bound by the precedential decisions of the United States Court

of Appeals for the Federal Circuit. One such decision is Acadia Technology, Inc.

v. United States, 458 F.3d 1327 (Fed. Cir. 2006). In Acadia, the Federal Circuit

held that:

When property has been seized pursuant to the criminal

laws or subjected to in rem forfeiture proceedings, such

deprivations are not ‘takings’ for which the owner is

entitled to compensation. The same rule applies even if

the property is seized as evidence in a criminal

investigation or as the suspected instrumentality of a

6

/ The court does not reach and expresses no opinion as to the merits of defendant’s other

RCFC 12(b)(6) arguments.

8

crime . . . .

458 F.3d at 1331 (citations omitted). The principle that police power seizures are

not takings is well-established in precedent binding on this court. See Kam-Almaz

v. United States, 682 F.3d 1364, 1371 (Fed. Cir. 2012) (“‘Property seized and

retained pursuant to the police power is not taken for a “public use” in the context

of the Takings Clause.’” (quoting AmeriSource Corp. v. United States, 525 F.3d

1149, 1153 (Fed. Cir. 2008) and citing Acadia, 458 F.3d at 1331-32)).

This court has applied the principle set forth in Kam-Almaz, AmeriSource

and Acadia in a number of cases. See, e.g., Steward v. United States, 80 Fed. Cl.

540, 543 (2008) (stating that “the loss, depreciation or damage of items confiscated

in the context of a criminal investigation cannot be the basis of a takings claim in

this court”) (citations omitted); Alde, S.A. v. United States, 28 Fed. Cl. 26, 34

(1993) (noting that when this court or its predecessors have considered claims

“based on the seizure of property by the Government, assertions that a taking

occurred have been uniformly rejected”). In Acadia, the Federal Circuit approved

of a decision of this court which reasoned that:

The government’s seizure, retention, and damaging of

[confiscated] property did not give rise to an actionable

claim for a taking, . . . because “items properly seized by

the government under its police power are not seized for

‘public use’ within the meaning of the Fifth

Amendment.”

458 F.3d at 1332 (quoting Seay v. United States, 61 Fed. Cl. 32, 35 (2004)).

Because the property confiscated from Mr. Ramos was seized pursuant to lawful

criminal proceedings and thus was not taken for public use, its loss, under the

precedent of this circuit, cannot give rise to a takings claim. See id.

The facts alleged in Mr. Ramos’s takings claim do not entitle him to a legal

remedy. For this reason, his takings claim, if it were not time-barred, would

necessarily be dismissed for failure to state a claim. Lindsay, 295 F.3d at 1257.

Thus, count three of the complaint would be dismissed under RCFC 12(b)(6) if it

were within this court’s jurisdiction.

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2. Plaintiff’s Takings Claim Is Barred by Res Judicata

Defendant also contends that Mr. Ramos’s takings claim is barred by the

doctrine of res judicata. The Supreme Court has explained that under the doctrine

of res judicata, also known as claim preclusion, “[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.” Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 398 (1981). In order for res judicata to apply here, the government

must demonstrate that: “(1) the parties are identical or in privity; (2) the first suit

proceeded to a final judgment on the merits; and (3) the second claim is based on

the same set of transactional facts as the first.” Ammex, Inc. v. United States, 334

F.3d 1052, 1055 (Fed. Cir. 2003) (citations omitted). This court reviews motions

to dismiss based on res judicata under the standards of RCFC 12(b)(6). Chisolm v.

United States, 82 Fed. Cl. 185, 193, aff’d, 298 F. App’x 957 (Fed. Cir. 2008).

There is no question that the parties are identical in this suit and the civil suit

filed by Mr. Ramos in the district court seeking the return of his seized property.

Compare Compl. at 1, with Def.’s Mot. App. at A037. There is also no dispute that

the civil suit proceeded to a final judgment on the merits. Def.’s Mot. App. at

A050-A052 (dismissing the lawsuit on res judicata grounds); see 18A Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4435 (2d ed. 2002) (“[D]ismissal of a second action on the ground that

it is precluded by a prior action is itself effective as res judicata, and a judgment on

the merits that forecloses further litigation of the preclusion question in a third

action.”); see also, e.g., Sommer v. Unum Life Ins. Co. of Am., 35 F. App’x 489,

490-91 (9th Cir. 2002) (affirming the res judicata dismissal of the third suit filed

by the appellant which followed the res judicata dismissal of his second suit);

Fenelon v. United States Postal Serv., 43 F.3d 669, 1994 WL 724994, at *2 (5th

Cir. Dec. 14, 1994) (table) (“[A] dismissal on the basis of res judicata is also a final

decision on the merits which has res judicata effect.”) (citation omitted). Here,

therefore, the first two criteria for the application of the doctrine of res judicata

have been met.

Furthermore, plaintiff’s takings claim is based on the same transactional

facts as the damages claim in Mr. Ramos’s civil suit in the district court. The

takings claim before this court requests compensation in the amount of

$51,546,000, the same amount alleged in Mr. Ramos’s civil suit before the district

10

court to be the actual value of the seized property. Compare Compl. at 9, with

Def.’s Mot. App. at A039. Mr. Ramos’s takings claim also challenges the same

government action – the seizure of plaintiff’s property in the Dominican Republic.

Thus, the claims in the two suits are based on identical transactional facts. For

these reasons, with all three criteria for claim preclusion having been met, Mr.

Ramos’s takings claim, if it were not time-barred, would necessarily be dismissed

for failure to state a claim because it is also barred by the doctrine of res judicata.

D. All of Mr. Ramos’s Claims Must Be Dismissed Not Transferred

The parties dispute whether transfer of plaintiff’s claims, rather than

dismissal, is appropriate. Transfer of cases from this court to a district court is

governed by 28 U.S.C. § 1631 (2006), which states in relevant part that:

Whenever a civil action is filed in [this] court . . . and

[this] court finds that there is a want of jurisdiction, the

court shall, if it is in the interest of justice, transfer such

action or appeal to any other such court in which the

action or appeal could have been brought at the time it

was filed or noticed, and the action or appeal shall

proceed as if it had been filed in or noticed for the court

to which it is transferred on the date upon which it was

actually filed in or noticed for the court from which it is

transferred.

As this court has stated, “[t]ransfer is appropriate when three elements are met: (1)

The transferring court lacks subject matter jurisdiction; (2) the case could have

been filed in the court receiving the transfer; and (3) the transfer is in the interests

of justice.” Brown v. United States, 74 Fed. Cl. 546, 550 (2006) (citing 28 U.S.C.

§ 1631).

The parties have only addressed the question of whether Mr. Ramos’s tort

claims should be transferred to a district court. The court will nonetheless begin its

analysis of the transfer dispute with a determination of whether plaintiff’s takings

claim should be transferred to a district court. See Texas Peanut Farmers v. United

States, 409 F.3d 1370, 1375 (Fed. Cir. 2005) (noting that § 1631 provides a

“statutory requirement that transfer be considered to cure jurisdictional defects”).

11

The court will then turn to the question of whether § 1631 indicates that plaintiff’s

tort claims should be transferred to a district court.

1. No Jurisdiction in a District Court for a Takings Claim

Exceeding $10,000

Mr. Ramos seeks $51,546,000 for his takings claim based on the seizure of

his property in the Dominican Republic. Compl. at 9. As the Federal Circuit has

noted, “the Tucker Act provides the Court of Federal Claims exclusive jurisdiction

over takings claims for amounts greater than $10,000.” Morris v. United States,

392 F.3d 1372, 1375 (Fed. Cir. 2004) (citing Palm Beach Isles Assocs. v. United

States, 208 F.3d 1374, 1383 n.10 (Fed. Cir. 2000)). Because Mr. Ramos’s takings

claim could not “have been brought” in a district court, transfer of his takings

claim is not permitted by 28 U.S.C. § 1631.

2. Transfer of Plaintiff’s Tort Claims Is Not in the Interest of

Justice

Plaintiff requests, as an alternative to dismissal, that his tort claims for

negligence and conversion be transferred to a federal district court. Pl.’s Resp. at

2. The court does not agree, for at least three reasons. First, the Supreme Court

has recognized that tort claims cognizable under the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680 (2006), do not include claims for

injuries which have occurred outside the United States. Sosa v. Alvarez-Machain,

542 U.S. 692, 712 (2004). Sosa is controlling precedent and would bar relief for

plaintiff on his tort claims in a district court in Texas, where he resides, or in the

United States District Court for the District of Columbia, the court to which he has

requested transfer of his tort claims. See, e.g., Al Janko v. Gates, 831 F. Supp. 2d

272, 284 n.23 (D.D.C. 2011) (citing Sosa, 542 U.S. at 711-12); Hernandez v.

United States, 802 F. Supp. 2d 834, 844 (W.D. Tex. 2011) (citing Sosa, 542 U.S. at

712). Because the FTCA would not support relief for Mr. Ramos’s tort claims in a

district court, it is not in the interest of justice to transfer his tort claims.

Second, as noted by the Fifth Circuit in Ramos II, any additional claims

arising from the operative facts of the seizure of plaintiff’s property are now barred

by the doctrine of res judicata. 455 F. App’x at 427 (“When Ramos initially

sought the return of his property, he could have also brought a claim for damages

12

related to the seizure. As a consequence, Ramos’s added claim for damages does

not prevent res judicata from barring his claims.”). Third, in the court’s view,

plaintiff’s tort claims would not be timely under the two-year statute of limitations

of the FTCA because they were submitted to the United States almost ten years

after August 26, 2002, when, at the latest, such claims accrued. See 28 U.S.C.

§ 2401(b) (2006). Because plaintiff’s tort claims are untimely and fail to state a

claim upon which a district court may grant relief, transfer of these claims,

pursuant to § 1631, is not appropriate.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that:

(1) Defendant’s Motion to Dismiss, filed March 4, 2013, is GRANTED;

(2) The Clerk’s office is directed to ENTER final judgment

DISMISSING all counts of plaintiff’s complaint, filed December 10,

2012, without prejudice for lack of subject matter jurisdiction; and,

(3) No costs.

Lynn J. Bush

Judge

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