Williams v. Federal Bureau of Investigation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN WILLIAMS, JR., 3:19-CV-00418-BR

Plaintiff, OPINION AND ORDER

v.

THE FEDERAL BUREAU OF

INVESTIGATION, THREE UNKNOWN

NAMED AGENTS OF THE FEDERAL

BUREAU OF INVESTIGATION, and

THE UNITED STATES,

Defendants.

WILLIAM L. GHIORSO

494 State Street, Suite 300

Salem, Oregon 97301

(503) 362-8966

WILLIAM D. BRANDT

494 State Street, Suite 300 B

Salem, Oregon 97301

(503) 485-4168

Attorneys for Plaintiff

1 - OPINION AND ORDER

BILLY J. WILLIAMS

United States Attorney

KEVIN C. DANIELSON

Assistant United States Attorney

1000 S.W. Third Avenue

Suite 600

Portland, OR 97204

(503) 727-1000

Attorneys for Defendant

BROWN, Senior Judge.

This matter comes before the Court on Defendants’ Motion

(#11) to Dismiss. The record is sufficiently developed such that

oral argument would not be helpful to resolve this Motion. For

the reasons that follow, the Court GRANTS IN PART and DENIES IN

PART Defendants’ Motion.

BACKGROUND

The following facts are taken from Plaintiff’s First Amended

Complaint and the parties’ filings related to Defendants’ Motion

to Dismiss and are taken as true unless otherwise noted.

On April 11, 2018, Plaintiff Steven Williams, Jr., arrived

at Portland International Airport to take a flight to Phoenix,

Arizona. Plaintiff was carrying approximately $121,940 in cash

in his luggage “for legitimate business purposes.” First Am.

Compl. at ¶ 4. Agents of the Transportation Security

Administration (TSA) observed the cash that Plaintiff was

carrying in his luggage when Plaintiff passed through security,

2 - OPINION AND ORDER

but the TSA agents permitted Plaintiff to proceed to his boarding

gate. The TSA agents, however, notified the Federal Bureau of

Investigation (FBI) about Plaintiff and the cash he was carrying

in his luggage.

Plaintiff boarded his flight to Arizona, but shortly

thereafter three FBI agents approached Plaintiff and directed him

to leave the plane and to return to the terminal. When the FBI

agents asked Plaintiff to explain why he was carrying the cash,

“Plaintiff informed the agents about the nature of his employment

and why he was carrying the money.”1 First Am. Compl. at ¶ 8.

The FBI agents asked Plaintiff to give them his cellular

telephone so they could search it, but Plaintiff refused.

Plaintiff alleges the FBI agents told him that if he did not

provide them with his telephone, they would “handcuff him and

‘drag him through the airport,’ where they would eventually take

his phone and his belongings anyway” and/or “‘raid [his] home,’

and take his belongings.” First Am. Compl. at ¶¶ 10-11.

Plaintiff, “[f]earing he had no other choice[,] . . . handed over

his phone to the FBI agents.” Id. at 11.

The FBI agents searched Plaintiff’s telephone, including his

“text messages and data.” First Am. Compl. at ¶ 12. The FBI

agents informed Plaintiff that they found text messages on his

1 The record does not reflect the nature of Plaintiff’s

employment nor the reason that he was carrying such a large

amount of cash.

3 - OPINION AND ORDER

telephone that they believed were related to the sale of

cannabis. “Plaintiff explained to the FBI agents that the text

messages were not related to any unlawful activity, . . . that

the messages were from seven years ago . . . [, and] that there

was no relation between the money he was carrying and the seven

year old text messages.” First Am. Compl. at ¶ 15.

Nevertheless, the FBI agents confiscated the $121,940 in cash

that Plaintiff was carrying.

Plaintiff alleges the FBI agents told him that it was a

crime for Plaintiff “to possess the cash that he was carrying”

and that if Plaintiff did not “turn [the cash] over to them, he

would be arrested and detained for several days while they raided

his home.” Id. at 10, 16-17. Plaintiff also alleges the FBI

agents told him that “any attempt to contest the forfeiture would

result in his immediate arrest, and that the police would ‘raid

[his] home’ and arrest him if he filed any lawsuit or action to

recover his property.” Id. at ¶ 18.

On June 6, 2018, the United States Department of Justice

(USDOJ) sent Plaintiff a Notice of Seizure of Property and

Initiation of Administrative Forfeiture Proceedings. The Notice

advised Plaintiff that he could challenge the forfeiture in two

ways: (1) file a Petition for Remission or Mitigation with the

FBI not later than 30 days after he received the Notice or

(2) file a claim within “35 days of the date of this letter.”

4 - OPINION AND ORDER

Def.’s Mot. to Dismiss, Ex. 1 at 1-2. The Notice advised

Plaintiff:

TO CONTEST THE FORFEITURE OF THIS PROPERTY IN

UNITED STATES DISTRICT COURT YOU MUST FILE A

CLAIM.

If you do not file a claim, you will waive your

right to contest the forfeiture of the asset.

Additionally, if no other claims are filed, you

may not be able to contest the forfeiture of this

asset in any other proceeding, criminal or civil.

Id. at 2. On June 25, 2018, Plaintiff signed for a certified

letter containing the Notice. The FBI also “posted Plaintiff’s

cash” on the website forfeiture.gov from June 25, 2018, through

July 28, 2018.

“[A]t the end of October 2018” Plaintiff contacted the FBI

“to request the return of his money.” The FBI informed Plaintiff

that it would not return the money.

On November 6, 2018, Plaintiff mailed to the FBI an

“administrative claim[] for the recovery of his money and for the

violation of his constitutional rights.” First Am. Compl. at

¶ 24.

On December 11, 2018, the FBI denied Plaintiff’s

administrative claim on the ground that the 35 days allowed for

filing an administrative claim challenging the forfeiture had

expired, and, therefore, Plaintiff’s claim was untimely.

On March 21, 2019, Plaintiff filed a Complaint in this Court

against the FBI and three unknown FBI agents alleging Defendants

(1) conducted an “unreasonable stop, arrest, search, and seizure

5 - OPINION AND ORDER

of Plaintiff's person and property” in violation of the Fourth

Amendment to the United States Constitution; (2) violated the

self-incrimination clause of the Fifth Amendment when they

“compell[ed] the production of Plaintiff’s property,” “seiz[ed]

Plaintiff’s property . . .[,] and thereafter subject[ed]

Plaintiff’s property to an administrative forfeiture”;

(3) “seized Plaintiff's property without prior notice or a

hearing and then commenced a nonjudicial forfeiture of

Plaintiff's property” in violation of Plaintiff’s right to

procedural due process under the Fifth Amendment; (4) violated

the Takings Clause of the Fifth Amendment when they “seized

Plaintiff's property for public use by removing the money from

Plaintiff's possession and subject[ed] Plaintiff's property to

forfeiture proceedings”; (5) violated the Excessive Fines Clause

of the Eighth Amendment when they seized and forfeited

Plaintiff’s property; (6) committed the federal common-law torts

of conversion and replevin when they seized the cash and

completed forfeiture proceedings; and (7) violated Plaintiff’s

right to substantive due process under the Fifth Amendment when

they “depriv[ed] Plaintiff of his property in the manner

described above.” Although it is not entirely clear, it appears

Plaintiff brought his claims for violation of his constitutional

rights pursuant to Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), and his state-law claims pursuant to

6 - OPINION AND ORDER

the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1340. Plaintiff

sought monetary damages and a declaration that “Plaintiff's

property was not subject to forfeiture under 21 U.S.C.

§ 881(a)(6).”

On June 3, 2019, Plaintiff filed a First Amended Complaint

in which he adds the United States as a Defendant and brings the

same claims against all Defendants. In addition to damages,

however, Plaintiff also requests in his First, Second, Third,

Fourth, Fifth, Sixth, and Eighth Claims that the Court enter an

order “invalidating the forfeiture of plaintiff’s property and

directing its immediate return” pursuant to the Administrative

Procedures Act (APA), 5 U.S.C. § 702.

On June 24, 2019, Defendants filed a Motion to Dismiss in

which they seek dismissal of Plaintiff’s First Amended Complaint.

STANDARDS

I. Dismissal for Lack of Jurisdiction Pursuant to Rule 12(b)(1)

“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994)(citations omitted). See also Quantum Prod.

Serv., LLC v. Austin, 448 F. App'x 755, 756 (9th Cir. 2011)

(same).

“Sovereign immunity is jurisdictional in nature. Indeed,

the ‘terms of [the United States'] consent to be sued in any

7 - OPINION AND ORDER

court define that court's jurisdiction to entertain the suit.’”

Id. (quoting United States v. Sherwood, 312 U.S. 584, 586

(1941)). See also United States v. Mitchell, 463 U.S. 206, 212

(1983)(“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a

prerequisite for jurisdiction.”).

The test for waiver of sovereign immunity is a “stringent

one.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 675–78 (1999)(quotation omitted).

Sovereign immunity may not be impliedly or constructively waived,

and courts must "indulge every reasonable presumption against

waiver." Id. at 678–82 (waivers of sovereign immunity must be

“unmistakably clear”). Any ambiguity in the waiver of sovereign

immunity must be construed in favor of immunity. United States

v. Nordic Village, Inc., 503 U.S. 30, 34 (1992).

II. Dismissal for Failure to State a Claim Pursuant to Rule

12(b)(6)

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as

true, to “state a claim to relief that is

plausible on its face.” [Bell Atlantic v.

Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955

[(2007)]. A claim has facial plausibility when

the plaintiff pleads factual content that allows

the court to draw the reasonable inference that

the defendant is liable for the misconduct

alleged. Id. at 556. . . . The plausibility

standard is not akin to a “probability

requirement,” but it asks for more than a sheer

possibility that a defendant has acted unlawfully.

Ibid. Where a complaint pleads facts that are

8 - OPINION AND ORDER

“merely consistent with” a defendant's liability,

it “stops short of the line between possibility

and plausibility of ‘entitlement to relief.’” Id.

at 557, 127 S. Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). See also Bell

Atlantic, 550 U.S. at 555-56. The court must accept as true the

allegations in the complaint and construe them in favor of the

plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

"In ruling on a 12(b)(6) motion, a court may generally

consider only allegations contained in the pleadings, exhibits

attached to the complaint, and matters properly subject to

judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012)(citation omitted). A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated

therein if the complaint relies on the document and its

authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).

DISCUSSION

Defendants move to dismiss Plaintiff’s First Amended

Complaint. Defendants assert (1) the Court should dismiss

Plaintiff’s constitutional claims against the United States and

the FBI because the United States has not waived sovereign

immunity for constitutional violations; (2) the Court should

dismiss Plaintiff’s APA claims because the Civil Asset Forfeiture

9 - OPINION AND ORDER

Reform Act (CAFRA), 21 U.S.C. § 881, provides an adequate and

exclusive remedy; (3) the Court should dismiss Plaintiff’s Bivens

claims because Plaintiff had an existing, alternative remedy for

challenging the forfeiture of his property; (4) the Court should

dismiss Plaintiff’s state-law claims against the FBI and the FBI

agents because the United States is the only proper defendant

under the FTCA; and (5) the Court should dismiss Plaintiff’s

state-law claims against the United States because the FTCA does

not waive sovereign immunity for forfeiture claims.

I. Plaintiff’s Constitutional Claims Against the United States

and FBI

As noted, Plaintiff asserts in his First, Second, Third,

Fourth, Fifth, and Seventh Claims that all Defendants violated

his Fourth and Fifth Amendment rights. Defendants, however,

assert Plaintiff cannot bring constitutional claims against the

United States and the FBI because the United States and its

agencies have not waived sovereign immunity for constitutional

violations. Individuals do not have a “cause of action directly

under the United States Constitution” for violation of their

constitutional rights. Azul–Pacifico, Inc. v. City of Los

Angeles, 973 F.2d 704, 705 (9th Cir. 1992). See also Ziglar v.

Abbasi, 137 S. Ct. 1843, 1854 (2017)(“In 1871, Congress passed a

statute that was later codified at . . . 42 U.S.C. § 1983. It

entitles an injured person to money damages if a state official

violates his or her constitutional rights. Congress did not

10 - OPINION AND ORDER

create an analogous statute for federal officials. Indeed, in

the 100 years leading up to Bivens, Congress did not provide a

specific damages remedy for plaintiffs whose constitutional

rights were violated by agents of the Federal Government.”).

In Bivens v. Six Unknown Agents the Supreme Court implied a right

of action by an individual against a federal agent for violation

of the individual’s constitutional rights. 403 U.S. at 397. See

also Ziglar, 137 S. Ct. at 1854 (“In 1971, and against this

background, this Court decided Bivens. The Court held that, even

absent statutory authorization, it would enforce a damages remedy

to compensate persons injured by federal officers who violated

the prohibition against unreasonable search and seizures.”)

(emphasis added)).

In Meyer the Supreme Court declined to extend the right of

action implied in Bivens to permit an individual to bring a claim

against a federal agency or entity for damages arising from

violation of the individual’s constitutional rights. Meyer, 510

U.S. at 484-85. The Court noted it had “implied a cause of

action against federal officials in Bivens in part because a

direct action against the Government was not available.” Id. at

485 (emphasis in original). The Court declined to extend Bivens

on the ground that “[i]f we were to recognize a direct action for

damages against federal agencies, we would be creating a

potentially enormous financial burden for the Federal Government

11 - OPINION AND ORDER

. . . . We leave it to Congress to weigh the implications of

such a significant expansion of Government liability.” Id. at

486.

In his Response Plaintiff concedes he cannot bring a Bivens

claim against the United States or the FBI. The Court,

therefore, GRANTS Defendants’ Motion to Dismiss and dismisses

with prejudice Plaintiff’s First, Second, Third, Fourth, Fifth,

and Seventh Claims as to the United States and the FBI.

II. Plaintiff’s APA Claims

In his First, Second, Third, Fourth, Fifth, Sixth, and

Eighth Claims Plaintiff requests the Court to enter an order

“invalidating the forfeiture of plaintiff’s property and

directing its immediate return” pursuant to the APA, 5 U.S.C.

§ 702. Defendants move to dismiss Plaintiff’s APA claims on the

ground that CAFRA provides Plaintiff’s exclusive remedy to

challenge the forfeiture of his property.

A. CAFRA

In 2000 Congress enacted CAFRA, which authorizes the

seizing agency to administratively forfeit assets valued up to

$500,000 after the seizing agency has comported with the

requirements of due process.

Due process under CAFRA requires the seizing agency to

send notice to potential claimants within 60 days of the seizure.

18 U.S.C. § 983(a)(1). “Successful actual notice is not

12 - OPINION AND ORDER

required; the government need only prove an attempt to provide

actual notice.” United States v. Simon, 609 F. App'x 1002, 1006

(11TH Cir. 2015)(citing Mesa Valderrama v. United States, 417

F.3d 1196 (11th Cir. 2005)). After notification, a party may

challenge the forfeiture by filing a claim within 35 days of the

mailing of the written notice. 18 U.S.C. § 983(a)(2)(B). If a

party does not file a claim, “administrative forfeiture occurs by

default, and title in the seized property vests in the United

States.” Simon, 609 F. App’x at 1006.

“After the deadline for filing a claim has passed, an

interest holder has only one mechanism available for return of

his property: a motion to set aside a forfeiture declaration”

under CAFRA. Simon, 609 F. App’x at 1006 (citing 18 U.S.C.

§ 983(e)(5); Mesa Valderrama, 417 F.3d at 1196).

B. Challenging the Forfeiture under the APA

The record reflects the USDOJ sent Plaintiff a Notice

of Seizure of Property and Initiation of Administrative

Forfeiture Proceedings on June 6, 2018, which is within 60 days

of the seizure of Plaintiff’s cash. As noted, the Notice advised

Plaintiff that he could challenge the forfeiture in two ways:

(1) file a Petition for Remission or Mitigation with the FBI not

later than 30 days after he received the Notice or (2) file a

claim within “35 days of the date of this letter.” Plaintiff

received actual written notice on June 25, 2018, and was properly

13 - OPINION AND ORDER

advised of his right to challenge the seizure. The Court,

therefore, concludes the USDOJ satisfied the requirements of 18

U.S.C. § 983.

Plaintiff acknowledges he did not file a claim by

July 11, 2018, which is 35 days from June 6, 2018, the date the

USDOJ sent Plaintiff the Notice. Plaintiff, however, seeks to

set aside the forfeiture under the APA on the grounds of a number

of alleged constitutional and state-law violations by Defendants.

Courts that have addressed this issue, however, have concluded a

plaintiff may not “seek review of an underlying administrative

forfeiture decision via the APA.” Simon, 609 F. App’x at 1006.

As the court explained in Simon:

The APA waives the government's sovereign immunity

against suit and provides jurisdiction over an

action if the aggrieved party is seeking “relief

other than money damages” and “state[s] a claim

that an agency or an officer or employee thereof

acted or failed to act in an official capacity.”

5 U.S.C. § 702. However, the APA limits judicial

review to “final agency action for which there is

no other adequate remedy in a court.” 5 U.S.C.

§ 704. Under § 983(e), CAFRA expressly provides

for the “exclusive remedy for seeking to set aside

a declaration of forfeiture.” 18 U.S.C. § 983(e)

(emphasis added); see also Mesa Valderrama, 417

F.3d at 1195–96 (holding § 983(e) is the exclusive

remedy for seeking to set aside a declaration of

forfeiture under a civil forfeiture statute).

Thus, the only relief available is under § 983(e).

See id. We are unable to find any civil

forfeiture cases governed by CAFRA that provide

for judicial review under the APA. The district

court did not err in determining that CAFRA

applies to prevent review of [the defendant’s]

motions under the APA.

14 - OPINION AND ORDER

Id. at 1007. See also Tamez v. United States, No. 2:18-CV-83,

2018 WL 4921731, at *10 (S.D. Tex. Oct. 10, 2018)(“[T]he only

equitable relief available to Plaintiff in seeking to set aside

the administrative forfeiture arises under” CAFRA. “CAFRA

. . . expressly provides the ‘exclusive remedy for seeking to set

aside a declaration of forfeiture.’ 18 U.S.C. § 983(e) . . .

Because an adequate equitable remedy exists solely under CAFRA,

Plaintiff cannot prevail on his Fifth Amendment claim for

equitable relief brought against the United States or one of its

agencies pursuant to the APA.”).

The Court adopts the reasoning of Simon and Tamez.

Accordingly, the Court concludes Plaintiff may not circumvent the

“existing process for protecting [an injured party’s] interest”

created by Congress in CAFRA by seeking to challenge the

forfeiture under the APA; i.e., Plaintiff’s exclusive means to

“invalidat[e] the forfeiture of [his] property” is through CAFRA.

Ziglar, 137 S. Ct. at 1858.

C. Equitable Tolling

As noted, Plaintiff acknowledges he did not file a

claim under CAFRA within 35 days of June 6, 2018, the date that

the USDOJ sent Plaintiff the Notice. In his Response, however,

Plaintiff asserts to the extent that CAFRA preempts Plaintiff’s

claims, “its timing requirements should be equitably tolled.”

Pl.’s Resp. at 13.

15 - OPINION AND ORDER

The Ninth Circuit has held § 983(e) of CAFRA is not a

jurisdictional provision that forecloses consideration of

equitable tolling. See Okafor v. United States, 846 F.3d 337,

340 (9th Cir. 2017)(“Section 983(e) does not state that it is

jurisdictional, nor is there any evidence in CAFRA's legislative

history or otherwise on the record that it should be treated as

such. Accordingly, we treat § 983(e) as a claim-processing rule.

Because there is no clear jurisdictional limitation in CAFRA, the

district court correctly determined that it had jurisdiction to

hear Okafor's motion for equitable relief.”). This Court,

therefore, has jurisdiction to evaluate Plaintiff’s equitable-

tolling argument.

“‘Generally, a litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.’” Okafor, 846 F.3d at 340

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

Plaintiff alleges an “extraordinary circumstance stood in his

way” of timely filing a CAFRA claim because he “feared

retaliation by the FBI [if he filed a claim under CAFRA] due to

the threats that [the FBI] would ‘raid [his] home,’ ‘destroy his

property,’ and publicly humiliate him if he sought the return of

his money.” First Am. Compl. at ¶ 22. Plaintiff, however, does

not allege or present any evidence that he was “pursing his

16 - OPINION AND ORDER

rights diligently” in the 91 days between the seizure and the

date on which he was required to file a CAFRA claim. For

example, Plaintiff does not allege he contacted an attorney or

sought any advice concerning his rights during the period at

issue. In addition, the record reflects the seizure occurred on

April 11, 2018; Plaintiff received the Notice from the USDOJ on

June 25, 2018; and Plaintiff was required to file a claim not

later than July 30, 2018. Plaintiff does not allege he had any

contact with the FBI agents who conducted the seizure or any

contact with the FBI in the 91 days between the seizure and the

date any CAFRA claim was due.

On this record the Court concludes Plaintiff has not

sufficiently alleged or established that he was pursing his

rights diligently nor that “some extraordinary circumstance”

prevented him from timely filing a CAFRA claim. The Court,

therefore, concludes Plaintiff is not entitled to equitable

tolling of the deadline to file a CAFRA claim. Accordingly, the

Court GRANTS Defendants’ Motion to Dismiss and dismisses with

prejudice Plaintiff’s APA claims.

III. Plaintiff’s Bivens Claims

Plaintiff asserts in his First, Second, Third, Fourth,

Fifth, and Seventh Claims that the individual FBI agents violated

his Fourth and Fifth Amendment rights. Defendant FBI Agents move

to dismiss Plaintiff’s First, Second, Third, Fourth, Fifth, and

17 - OPINION AND ORDER

Seventh Claims against them on the ground that those claims are

not cognizable because in CAFRA Congress has created an

alternative process for protecting the interests of individuals

injured by forfeitures.

As noted, in Bivens the Supreme Court implied a right of

action against a federal agent for violation of a plaintiff’s

constitutional rights. 403 U.S. at 397. See also Ziglar, 137 S.

Ct. at 1854 (“In 1971 . . . this Court decided Bivens. The Court

held that, even absent statutory authorization, it would enforce

a damages remedy to compensate persons injured by federal

officers who violated the prohibition against unreasonable search

and seizures.”). The Supreme Court, however, explained in Zigler

that it was reluctant to expand Bivens to imply a remedy for

other constitutional violations:

In the decade that followed [Bivens], the Court

recognized what has come to be called an implied

cause of action in two cases involving other

constitutional violations. In Davis v. Passman,

442 U.S. 228 (1979), an administrative assistant

sued a Congressman for firing her because she was

a woman. The Court held that the Fifth Amendment

Due Process Clause gave her a damages remedy for

gender discrimination. Id., at 248–249. And in

Carlson v. Green, 446 U.S. 14 (1980), a prisoner's

estate sued federal jailers for failing to treat

the prisoner's asthma. The Court held that the

Eighth Amendment Cruel and Unusual Punishments

Clause gave him a damages remedy for failure to

provide adequate medical treatment. See id., at

19. These three cases — Bivens, Davis, and

Carlson — represent the only instances in which

the Court has approved of an implied damages

remedy under the Constitution itself.

18 - OPINION AND ORDER

* * *

Later, the arguments for recognizing implied

causes of action for damages began to lose their

force. In cases decided after Bivens, and after

the statutory implied cause-of-action cases that

Bivens itself relied upon, the Court adopted a far

more cautious course before finding implied causes

of action. In two principal cases under other

statutes, it declined to find an implied cause of

action. See Piper v. Chris–Craft Industries,

Inc., 430 U.S. 1, 42, 45–46 (1977); Cort v. Ash,

422 U.S. 66, 68–69 (1975). Later, in Cannon v.

University of Chicago, 441 U.S. 677 (1979), the

Court did allow an implied cause of action; but it

cautioned that, where Congress “intends private

litigants to have a cause of action,” the “far

better course” is for Congress to confer that

remedy in explicit terms. Id., at 717.

* * *

Given the notable change in the Court's approach

to recognizing implied causes of action . . . the

Court has made clear that expanding the Bivens

remedy is now a “disfavored” judicial activity.

Iqbal, 556 U.S. at 675. This is in accord with

the Court's observation that it has “consistently

refused to extend Bivens to any new context or new

category of defendants.” Correctional Services

Corp. v. Malesko, 534 U.S. 61, 68 (2001). Indeed,

the Court has refused to do so for the past 30

years.

For example, the Court declined to create an

implied damages remedy in the following cases:

. . . a substantive due process suit against

military officers, United States v. Stanley, 483

U.S. 669, 671–672, 683–684 (1987); a procedural

due process suit against Social Security

officials, Schweiker v. Chilicky, 487 U.S. 412,

414 (1988); a procedural due process suit against

a federal agency for wrongful termination, FDIC v.

Meyer, 510 U.S. 471, 473–474 (1994); [and] . . . a

due process suit against officials from the Bureau

of Land Management, Wilkie v. Robbins, 551 U.S.

537, 547–548, 562 (2007).

19 - OPINION AND ORDER

137 S. Ct. at 1854–55, 1857. The Supreme Court also reiterated

when

there is an alternative remedial structure present

in a certain case, that alone may limit the power

of the Judiciary to infer a new Bivens cause of

action. For if Congress has created “any

alternative, existing process for protecting the

[injured party's] interest” that itself may

“amoun[t] to a convincing reason for the Judicial

Branch to refrain from providing a new and

freestanding remedy in damages.” Wilkie [v.

Robbins, 551 U.S. 537, 550 (2007)]; see also

Bush [v. Lucas, 462 U.S. 367, 385–388 (1983)]

(recognizing that civil-service regulations

provided alternative means for relief).

Ziglar, 137 S. Ct. at 1858.

Although the Ninth Circuit has not addressed the issue,

other circuit courts have refused to recognize a Bivens claim

related to administrative forfeitures of property based on the

Supreme Court’s refusal to expand Bivens and the Supreme Court’s

admonition that courts should refrain from expanding Bivens in

light of the fact that Congress has created an “alternative,

existing process for protecting the [injured party's] interest.”

For example, in Rankin v. United States the plaintiff sought

relief under Bivens for “the purportedly unconstitutional

forfeiture of his property.” 556 F. App’x 305, 311 (5th Cir.

2014). The court noted CAFRA “provides a comprehensive statutory

scheme for challenging a civil forfeiture.” Id. The court

ultimately concluded “[b]ecause CAFRA provides a comprehensive

scheme for protecting property interests, no Bivens claim is

20 - OPINION AND ORDER

available.” Id. (citing Bush, 462 U.S. at 385-89). Similarly,

in Francis v. Milligan the plaintiff asserted “his car and cash

were seized [and forfeited] in violation of the Fourth

Amendment.” 530 F. App’x 138, 138 (3rd Cir. 2015). The

plaintiff brought an action under Bivens seeking damages and a

return of his forfeited property. The court concluded the

plaintiff could not challenge his forfeiture under Bivens on the

grounds that:

By its plain language, [CAFRA] provides a remedy

for the very claim [the plaintiff] sought to bring

under Bivens, and it provides the exclusive remedy

for such a claim. See Mesa Valderrama v. United

States, 417 F.3d 1189, 1195–96 (11th Cir. 2005).

Courts should not extend Bivens when an

alternative remedy exists. See Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 74 (2001).

Francis, 530 F. App’x at 139.

District courts in the Ninth Circuit have reached the same

conclusion. See, e.g., Lefler v. United States, No. 11CV220-LAB

POR, 2011 WL 2132827, at *2 (S.D. Cal. May 26, 2011)(“Even if

[the plaintiff] . . . could show . . . he would have contested

the forfeiture . . . , a Bivens action would not lie because [the

plaintiff] has a remedy under § 983(e).”); United States v. Hall,

2:06-cr-00310-HDM-PAL, 2010 WL 11531405, at *6 (D. Nev. Mar. 31,

2010)(dismissing the plaintiff’s claim brought pursuant to Bivens

for the return of currency seized and forfeited on the ground

that “CAFRA is the exclusive remedy” for the plaintiff’s claim).

District courts in other circuits have also held individuals may

21 - OPINION AND ORDER

not challenge forfeitures under Bivens. See, e.g., Perkins v.

Jordan, No. 1:17-cv-03507-JMS-DLP, 2018 WL 2722875, at *3-4 (S.D.

Ind. June 6, 2018)(holding the plaintiff’s “suit [challenging the

forfeiture of the plaintiff’s currency] may not proceed . . . as

a Bivens claim” because “Congress created a statutory vehicle for

such claims in the form of 18 U.S.C. § 983(e).”); Mikhaylov v.

United States, 29 F. Supp. 3d 260, 271 (E.D.N.Y. 2014)(The

plaintiff’s “exclusive remedy with respect to the forfeiture of

his money is a Section 983(e) motion and not additional Bivens

claims.”).

The Court adopts the reasoning of Rankin, Francis, and

Lefler. The Court, therefore, declines to extend Bivens to

Plaintiff’s First, Second, Third, Fourth, Fifth, and Seventh

Claims on the ground that CAFRA provides the exclusive remedy.

Accordingly, the Court GRANTS Defendants’ Motion to Dismiss

and dismisses Plaintiff’s First, Second, Third, Fourth, Fifth,

and Seventh Bivens claims as to the three unknown FBI agents to

the extent that Plaintiff seeks to litigate the seizure and

forfeiture of his assets. The Court, however, DENIES the Motion

to the extent that Plaintiff seeks to litigate whether the

agents’ seizure of his person or their allegedly coercive

questioning of him violated his Fourth and/or Fifth Amendment

rights.

22 - OPINION AND ORDER

IV. Plaintiff’s Tort Claims

Plaintiff’s Sixth Claim is for conversion and replevin.

Plaintiff seeks damages and the return of the forfeited currency.

Plaintiff brings his Sixth Claim pursuant to the APA and the

FTCA. The Court has already concluded Plaintiff may not bring

his Sixth Claim pursuant to the APA.

A. Defendants FBI and FBI Agents

Defendants move to dismiss that portion of Plaintiff’s

Sixth Claim brought against the FBI and the FBI agents pursuant

to the FTCA on the ground that the United States is the only

proper Defendant under the FTCA.

In his Response Plaintiff concedes the United States is

the only proper Defendant under the FTCA.

Accordingly, the Court GRANTS Defendants’ Motion to

Dismiss and dismisses with prejudice that portion of Plaintiff’s

Sixth Claim against the FBI and the FBI agents brought pursuant

to the FTCA.

B. Defendant United States

Defendants move to dismiss that portion of Plaintiff’s

Sixth Claim against the United States brought pursuant to the

FTCA on the ground that the FTCA does not waive sovereign

immunity for forfeiture claims when the interests of the claimant

have been forfeited.

Under the FTCA the United States waives sovereign

23 - OPINION AND ORDER

immunity for tort claims that result from injuries caused by

negligent or wrongful acts of government employees acting within

the scope of their employment. 28 U.S.C. §§ 1346(b)(1), 2671-80.

Under the FTCA, however, the United States does not waive

sovereign immunity for certain claims, and those exceptions are

set out in 28 U.S.C. § 2680. In particular, under § 2860(c) the

United States does not waive sovereign immunity for claims

“arising in respect of the . . . detention of any goods,

merchandise, or other property by any officer of customs or

excise or any other law enforcement officer” unless:

(1) the property was seized for the purpose of

forfeiture under any provision of Federal law

providing for the forfeiture of property other

than as a sentence imposed upon conviction of a

criminal offense;

(2) the interest of the claimant was not

forfeited;

(3) the interest of the claimant was not remitted

or mitigated (if the property was subject to

forfeiture); and

(4) the claimant was not convicted of a crime for

which the interest of the claimant in the property

was subject to forfeiture under a Federal criminal

forfeiture law.

Emphasis added. See Himex Co., Inc. v. United States, 17 F.

Supp. 3d 77, 80 (D.D.C. 2014)(“However, § 2680(c) states that the

waiver of sovereign immunity provided in § 1346(b) shall apply to

claims that would ordinarily fall under the detention exception

if the plaintiff can establish that: (1) the property was seized

24 - OPINION AND ORDER

for the purpose of forfeiture; (2) the interest of the claimant

was not forfeited; (3) the interest of the claimant was not

remitted or mitigated; and (4) the interest of the claimant was

not forfeited under a federal criminal forfeiture law. . . . In

short, fulfillment of these four statutory conditions will

effectively “re-waive” sovereign immunity, and the claim may be

brought in the district courts.”)(emphasis in original)).

Here Plaintiff’s interest in the currency was forfeited

when he did not file a timely claim. As a result, Plaintiff has

not satisfied all of the statutory conditions set out in

§ 2680(c), and, therefore, § 2680(c) does not “re-waive”

sovereign immunity. Courts that have addressed the issue have

concluded when the interest of a claimant has been forfeited,

sovereign immunity has not been waived and the court, therefore,

lacks subject-matter jurisdiction over the claimant’s FTCA claim.

For example, in Himex the plaintiff’s interest in his property

was forfeited. As a result, the court concluded the plaintiff’s

FTCA claim did “not meet the statutory criteria of

§ 2680(c)(l)–(4) required to ‘re-waive’ sovereign immunity, and

therefore [the court] lack[ed] jurisdiction.” 17 F. Supp. 3d at

81. Similarly, in Cobar v. DEA Asset Forfeiture Section the

plaintiff sought the return of seized currency from the Asset

Forfeiture Section of the Drug Enforcement Administration.

No. 12 Civ. 7415(KPF), 2014 WL 1303110, at *1 (S.D.N.Y. March 31,

25 - OPINION AND ORDER

2014). The court concluded to the extent that the plaintiff

brought his action pursuant to the FTCA, the court did not have

jurisdiction to decide the issue:

“The FTCA waives sovereign immunity, inter alia,

for ‘claims against the United States, for money

damages . . . caused by the negligent or wrongful

act or omission of any employee of the Government

while acting within the scope of his office or

employment.’” Diaz, 517 F.3d at 613 (quoting 28

U.S.C. § 1346). Because of certain limitations

under the FTCA, in order to establish a claim

under this statute, a claimant must satisfy, among

other conditions, that “the interest of the

claimant was not forfeited.” Id; 28 U.S.C.

§ 2680(c)(2). Because Plaintiff's interest has

been forfeited, he cannot satisfy one of the

required conditions to proceeding under the FTCA,

and as a result, this Court would not have

jurisdiction to hear a FCTA claim brought by

Plaintiff.

Id., at *9 n.7.

The Court adopts the reasoning of Himex and Cobar. The

Court, therefore, concludes Plaintiff has not satisfied the

requirements of § 2680(c)(1)-(4) to “re-waive” sovereign immunity

for that portion of his Sixth Claim brought against the United

States pursuant to the FTCA because Plaintiff’s interest in the

currency that he carried was forfeited. This Court, therefore,

lacks jurisdiction to decide that portion of Plaintiff’s Sixth

Claim.

Accordingly, the Court GRANTS Defendants’ Motion to

Dismiss and dismisses with prejudice that portion of Plaintiff’s

26 - OPINION AND ORDER

Sixth Claim brought against the United States pursuant to the

FTCA.

CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motion (#11)

to Dismiss and DISMISSES with prejudice:

(1) Plaintiff’s First, Second, Third, Fourth, Fifth, and

Seventh Claims as to the United States and the FBI;

(2) Plaintiff’s APA claims;

(3) Plaintiff’s First, Second, Third, Fourth, Fifth, and

Seventh Bivens claims as to the three unknown FBI

agents to the extent that Plaintiff seeks to litigate

the seizure and forfeiture of his assets; and

(4) Plaintiff’s Sixth Claim.

The Court DENIES Defendant’s Motion to Dismiss Plaintiff’s

First, Second, Third, Fourth, Fifth, and Seventh Bivens claims as

to the three unknown FBI agents to the extent that Plaintiff

seeks to litigate whether the agents’ seizure of his person or

their allegedly coercive questioning of him violated his Fourth

and/or Fifth Amendment rights.

The Court DIRECTS Plaintiff not later than November 15,

2019, to either file an Amended Complaint setting out any Fourth

and/or Fifth Amendment Claims as to the seizure of his person or

to file a status report advising the Court that Plaintiff does

27 - OPINION AND ORDER

not intend to file an Amended Complaint.

IT IS SO ORDERED.

DATED this 18th day of October, 2019.

/s/ Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

28 - OPINION AND ORDER