United States v. Plunk

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

GEORGE FRANK PLUNK; 1975

SUPERCUB, PA-18 AIRCRAFT, FAA

REG. NO. N4545B; T17N R5W, No. 06-35269

SECTION 33, SEWARD PRIME D.C. No.

MERIDIAN, ALASKA, TRACT A,  CV-96-00335-A-

ALASKA STATE LAND SURVEY NO. JWS

76-182, Hock Lake property, OPINION

Defendants-Appellants,

and

TWELVE PIECES OF REAL PROPERTY

WITH ALL APPURTENANCES,

Defendant.



Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

August 8, 2007—Anchorage, Alaska

Filed December 21, 2007

Before: J. Clifford Wallace, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Wallace

16625

UNITED STATES v. PLUNK 16627

COUNSEL

Phillip Paul Weidner, Phillip Paul Weidner & Assoc.,

Anchorage, Alaska, for the appellant.

Nelson Cohen, United States Attorney for the District of

Alaska, and James Barkeley, Assistant United States Attor-

ney, Anchorage, Alaska, for the appellee.

16628 UNITED STATES v. PLUNK

OPINION

WALLACE, Senior Circuit Judge:

Plunk appeals from the district court’s Amended Final

Decree of Forfeiture. The court awarded Plunk compensation

in lieu of property to be returned under 28 U.S.C. § 2465 and

calculated the amount due to Plunk based on the sale proceeds

of the property. The court denied Plunk any additional com-

pensation for consequential damages related to the seizure and

forfeiture of the property, and disagreed with his argument

that the value of the property should have been calculated at

the date of its return. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I.

Plunk was convicted on several counts related to his partic-

ipation in a coast-to-coast cocaine smuggling conspiracy. We

affirmed those convictions over multiple challenges. See

United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998); United

States v. Plunk, 161 F.3d 15 (9th Cir. 1998) (unpublished).

The facts underlying those convictions, which are not relevant

to this appeal, are outlined in United States v. Plunk, 153 F.3d

at 1015-16. During the twelve years of civil and criminal liti-

gation related to this case, Plunk’s property has been the sub-

ject of various administrative, criminal, and civil forfeiture

proceedings; however, only two assets are involved in this

appeal: (1) a 1975 SuperCub PA-18 aircraft (SuperCub) and

(2) a cabin and real property located in Alaska (Hock Lake

property).

The SuperCub and Hock Lake property were originally part

of two different civil forfeiture cases. In 1994, at the same

time it indicted Plunk, the government sued to forfeit four air-

craft, including the SuperCub, alleging that the aircraft repre-

sented proceeds of Plunk’s drug trafficking and were subject

to forfeiture pursuant to 21 U.S.C. § 881(a). In 1996, after

UNITED STATES v. PLUNK 16629

unsuccessfully pursuing criminal forfeiture proceedings, the

government initiated civil suits against several pieces of real

property, including the Hock Lake property, pursuant to 21

U.S.C. § 881(a) and 18 U.S.C. § 981(a)(1)(A). The proceed-

ings involving the SuperCub and the Hock Lake property

were consolidated in 1997, and the district court granted the

government’s motion for summary judgment on the consoli-

dated civil proceedings, and executed a Final Decree of For-

feiture.

On appeal to our court, however, we held that we could not

determine, based on the record before us, “whether the gov-

ernment [had] met its initial burden of establishing probable

cause linking the Hock Lake property to the drug trade” and

remanded to the district court to make that determination.

United States v. Twelve Pieces of Real Property, 54 Fed.

Appx. 461, 463 (9th Cir. 2003) (unpublished). We also held

that the government’s admissible evidence failed to establish

probable cause for the forfeiture of the SuperCub. Id. at 463-

64.

On remand to the district court, the government declined to

submit additional evidence showing probable cause for the

forfeiture of the Hock Lake property, effectively conceding

that neither the Hock Lake property nor the SuperCub was

subject to forfeiture. By this time, however, both the proper-

ties had been sold. The district court had permitted the gov-

ernment to sell the SuperCub (over Plunk’s objection) in May

1998 while forfeiture proceedings were pending. The Hock

Lake property was sold after the district court’s August 1998

final decree of forfeiture. Because the property had been sold,

the district court directed the parties to confer in order to

reach a settlement on the amount owed.

The parties disagreed over the amount due Plunk, but in

March 2005 Plunk accepted a check for $88,037.25. This

amount included the sale proceeds for the SuperCub and the

Hock Lake property as well as interest, based on the Seized

16630 UNITED STATES v. PLUNK

Assets Deposit Fund rates, that had accrued from the date of

sale. Plunk, however, maintained that he was owed more

money. He argued that he was entitled to (1) damages for his

loss of use and enjoyment of the property, (2) damages for the

rental value of the property, (3) the fair market value of the

property at the time of return, and (4) interest computed at the

Alaska statutory rate from the date of sale. With respect to the

fourth issue, Plunk has not challenged the district court’s final

interest calculation or award of interest on appeal, and the

issue is therefore waived.

The district court held an evidentiary hearing, received sup-

plemental briefs from the parties, and heard oral argument.

The government contended that it was required to return only

the proceeds realized from the sale of the property. The gov-

ernment presented evidence that two months prior to its sale

the Hock Lake property was appraised at $28,000; it sold for

$23,282, including $1,682 in delinquent taxes, leaving a value

to Plunk of $21,600. Plunk presented a broker’s opinion of the

value of the Hock Lake property at the time of the hearing,

but no evidence of its value at the time of its sale in 1999. The

SuperCub was appraised in July 1998 at a value of $52,040

and sold for $52,525. Plunk presented testimony from a

mechanic who claimed that the SuperCub had a December

1998 value of $122,000.

The district court denied Plunk’s request for additional

compensation, amended the Final Decree of Forfeiture to pro-

vide that Plunk should recover from the United States a total

amount of $88,037.25, and recognized that the government

had fully satisfied its obligation to Plunk. Plunk timely

appealed.

II.

We review de novo the district court’s interpretation of fed-

eral forfeiture law. United States v. 25445 Via Dona Christa,

138 F.3d 403, 407 (9th Cir. 1998), amended by 170 F.3d 1161

UNITED STATES v. PLUNK 16631

(9th Cir. 1999). We also review de novo a district court’s

denial of a motion for return of property. United States v.

Marshall, 338 F.3d 990, 993 (9th Cir. 2003).

[1] Plunk first contends that the government’s seizure and

forfeiture of his property violated his Fifth Amendment due

process rights and that he is therefore entitled to be “made

whole” by recovering consequential damages for his loss of

use and enjoyment, and the rental value of his property from

the date of seizure to the date of sale. While it is true that we

require that a claimant be made whole when he or she has suf-

fered an unconstitutional seizure, see, e.g., United States v. 22

Santa Barbara Dr., 264 F.3d 860, 869 (9th Cir. 2001), Plunk

suffered no due process violation. Due process “prohibits the

Government in a civil forfeiture case from seizing real prop-

erty without first affording the owner notice and an opportu-

nity to be heard.” United States v. James Daniel Good Real

Property, 510 U.S. 43, 46 (1993). Plunk does not dispute that

he received notice of the government’s intent to seek forfei-

ture and does not argue that he lacked an opportunity to be

heard.

The return of Plunk’s property is thus governed only by 28

U.S.C. § 2465. Prior to its amendment in 2000, the language

appropriate in this appeal, 28 U.S.C. § 2465, read:

Upon the entry of judgment for the claimant in any

proceeding to condemn or forfeit property seized

under any Act of Congress, such property shall be

returned forthwith to the claimant or his agent; but

if it appears that there was reasonable cause for the

seizure, the court shall cause a proper certificate

thereof to be entered and the claimant shall not, in

such case, be entitled to costs, nor shall the person

who made the seizure, nor the prosecutor, be liable

to suit or judgment on account of such suit or prose-

cution.

16632 UNITED STATES v. PLUNK

Plunk contends that 28 U.S.C. § 2465 requires that he

receive consequential damages. But no case in this circuit has

so held, and other circuits have rejected the argument that sec-

tion 2465 requires compensatory or consequential damages.

See, e.g., United States v. 1461 W. 42nd St., 251 F.3d 1329,

1339 (11th Cir. 2001); United States v. One (1) 1979 Cadillac

Coupe de Ville, 833 F.2d 994, 998 (Fed. Cir. 1987). We agree

with our sister circuits.

[2] First, nothing in the text of section 2465 provides for

the payment of consequential damages. The statute “requires

only that, if the claimant prevails in a forfeiture proceeding,

‘the property seized’ shall be returned to the claimant. It does

not say ‘the equivalent value of the property seized’ shall be

returned.” One (1) 1979 Cadillac Coupe de Ville, 833 F.2d at

998. The statute’s silence on the issue of consequential dam-

ages is particularly significant here because permitting conse-

quential damages would constitute a waiver of sovereign

immunity. See id. Without “clear and explicit” language waiv-

ing immunity, it would be improper for us to construe the stat-

ute to permit consequential damages against the government.

Id. at 998-99.

[3] Second, to the extent it should be considered, nothing

in the legislative history of section 2465 suggests that Con-

gress intended to subject the federal government to conse-

quential damages for seized property and so abrogate

sovereign immunity. See id. at 999. On the contrary, the Elev-

enth Circuit has persuasively stated that the statute’s purpose

was actually “to insulate the government from, rather than

broaden the government’s exposure to, liability for costs or

damages for initially reasonable but ultimately improvident

seizures.” 1461 W. 42nd St., 251 F.3d at 1339. As the Federal

Circuit concluded in One (1) 1979 Cadillac Coupe de Ville,

the “requirement that the seized property ‘shall be returned

forthwith to the claimant’ cannot properly be interpreted as

‘mandating compensation by the Federal Government for the

UNITED STATES v. PLUNK 16633

damage sustained’ by the claimant as a result of the seizure.”

833 F.2d at 999 (internal citation omitted).

[4] Finally, our interpretation of section 2465 is consistent

with our precedent related to the return of seized property. In

United States v. $277,000 U.S. Currency, 69 F.3d 1491, 1492

(9th Cir. 1995), we considered what a property owner may

recover when the “United States seizes property . . . and is

ultimately found to have no proper claim to the property.”

Section 2465 was not at issue in $277,000 U.S. Currency, but

we cited with approval the Federal Circuit’s determination

that section 2465 did not permit consequential damages. See

id. at 1497-98. We ultimately held that “the government is not

generally liable for damages . . . because of sovereign immu-

nity.” Id. at 1492. That reasoning applies with equal force to

property seized and returned under section 2465.

Awarding consequential damages to Plunk would contra-

vene the doctrine of sovereign immunity. Nothing in section

2465 permits that contravention, and we affirm the district

court’s refusal to award consequential damages.

III.

Plunk’s second contention is that the district court erred

when it relied on the actual sale price of the SuperCub and

Hock Lake property to determine the fair market value of the

properties. We review de novo the district court’s legal deter-

mination that the value at the time of the sale rather than the

value at the time of return is the appropriate measure. See

Marshall, 338 F.3d at 993. We review for clear error the dis-

trict court’s factual determination of the value at the time of

sale. Id.

Because the property had already been sold when Plunk

prevailed on appeal of the forfeiture proceedings, the district

court properly determined that Plunk was entitled to receive

the value of the property that had been sold. See Republic

16634 UNITED STATES v. PLUNK

Nat’l Bank of Miami v. United States, 506 U.S. 80, 95-96

(1992) (C.J. Rehnquist, concurring) (stating that section 2465

can be construed as authorizing the return of proceeds where

the forfeited property has been sold by the government). The

district court further determined that the sale price was an

appropriate measure of the property’s value.

[5] Plunk contends that he is entitled to the value of the

property on the date of return in 2006, not the value on the

dates of the sales in 1998 and 1999. This contention conflicts

with our precedent on a related issue. In Marshall, which

dealt with the return of property under Federal Rule of Crimi-

nal Procedure 41(g), we stated that “[o]nly on the date of sale

did the government lose the ability to return the property

itself. For that reason, the value [of the property] on the date

of sale [is] the proper measure of the substitution of money

for return of the property.” 338 F.3d at 994. While Marshall

did not address 28 U.S.C. § 2465, its reasoning is persuasive

in this context. Both 28 U.S.C. § 2465 and Rule 41(g) provide

for the return of property where that property is improperly

seized by the government and, as in Marshall, the government

here lost the ability to return Plunk’s property on the date that

it was sold. Consistent with Marshall’s reasoning, we hold

that the date of sale is the proper date for calculating the

amount of money substituted for the return of property under

section 2465. Under this rule, Plunk’s expert testimony about

the value of the property on the date of the evidentiary hear-

ing is not helpful, and the district court did not err in relying

on the date of sale rather than the date of return in determin-

ing the property’s value.

[6] We also reject Plunk’s argument, made for the first time

on appeal, that the SuperCub sale was not commercially rea-

sonable and that the sale price did not reflect the fair market

value at the time of the sale. The district court’s determination

of fair market value was supported by the government’s

experts’ appraisals, which the court was entitled to rely on

over Plunk’s expert’s post hoc appraisal. These factual find-

UNITED STATES v. PLUNK 16635

ings based on conflicting evidence were not clearly erroneous.

We affirm the district court’s determination of the property’s

value.

IV.

[7] Plunk requests attorney’s fees under the Equal Access

to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). However, the

record does not show, and Plunk does not argue in his brief,

that he ever filed an application for attorney’s fees pursuant

to 28 U.S.C. § 2412(d)(1)(B). His failure to make a proper

application for attorney’s fees under the EAJA forecloses our

review of the issue.

[8] Plunk also contends that he is entitled to costs. While

an award of costs seems permissible under section 2465,

awarding them here would be inappropriate. Plunk’s briefs

fail to provide a record sufficient to support a decision on

costs, particularly because he does not clarify for which pro-

ceedings during this drawn-out litigation he requests costs. If

he refers to this court’s earlier decision, in Twelve Pieces, that

the SuperCub and Hock Lake property were improperly for-

feited, he has not explained how an award of costs would be

made considering that he did not entirely prevail. Further-

more, he failed to ask the district court for an award of costs

after our remand.

Plunk is not entitled to costs for this appeal because the

government prevailed in the district court and he has not suc-

ceeded in his present appeal.

AFFIRMED. ATTORNEY’S FEES AND COSTS

DENIED.