Opposition Brief — Bein v. United States

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| Supreme Court, US.

e FILED

JUL 18 opp

No. 00-1469

Jn the Supreme Court of the Gunit

ESTHER BEIN AND WILLIAM BEIN, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

BARBARA C. BIDDLE

MARY K. DOYLE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Federal Rule of Criminal Procedure 41(e) provides

that a person aggrieved by an unlawful search and

seizure or by a deprivation of property may move for

the return of seized property on the ground that such

person is entitled to lawful possession of the property.

The question presented is whether Rule 41(e) waives

the government’s sovereign immunity and authorizes

courts to award damages against the government

where the property at issue cannot be returned because

it has been destroyed or otherwise disposed of.

(I)

TABLE OF CONTENTS

Page

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I UIIIID cisnsisiscivsictuiniiccnnchesiiiecenatsionestingsintseemapinsiséndiecssesnihinstenedeinats 1

ITI: ssctdensesscisvisderihicdipdnmiectcsiunpinascnansioneduininsaseneaatetnatannsnsenneiontndienene 2

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I cisbiiiictlasidhedibciitaehcidaihapiisiicedibiiasiapteniistinmendsamenintancintandnicnians 18

TABLE OF AUTHORITIES

Cases:

Automatic Sprinkler Corp. of America v. Darla

Envtl. Specialists, 53 F.3d 181 (7th Cir. 1995) ...........0006 9

Bowen v. Massachusetts, 487 U.S. 879 (1988) ............000 12

Department of the Army v. Blue Fox, Inc., 525 US.

eI soveetinesiicitenibsiabcideenietednatintaneincentiespenmincens 6, 8, 12, 16, 18

FDIC v. Meyer, 510 U.S. 471 (1994) ........cccorssssoscsssessssesees 9

Jones v. United States, cert. denied, 121 S. Ct. 2195

| SERRE Re Se Pe ee +: AES Ne it 8

Lane v. Pefia, 518 U.S. 187 (1996) .......cccccsesessessereee 8, 10, 11, 16

Mora v. United States, 955 F.2d 156 (2d Cir. 1992) ......... 14

National Collegiate Athletic Ass’n v. Smith,

SE PEI ‘ccciscscnitindipeinekanenilshtinnitneeicsehanetinepsinnintsasintane 17

OPM v. Richmond, 496 U.S. 414 (1990) .......cccscccssesseeees 8-9

Pefia v. United States, 157 F.3d 984 (5th Cir.

I ianieleiit ctelitchiscnsshliicienddbbasbidhinsieniasininaesicontiannamesiernayineee 5, 10

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) sid secictibapiaiiantick 15

Republic Nat'l Bank of Miami v. United States,

Se nea MN I hii nineteinindencnicaesninhteninnanbece 11

Thompson v. Covington, 47 F.3d 974 (8th Cir.

1995) ‘ 15

Trout v. Garrett, 891 F.2d 332 (D.C. Cir. 1989) ...........0+ 11

United States v. Bajakajian, 524 U.S. 321 (1998) ........... 17

United States v. Idaho, 508 U.S. 1 (1993) y

United States v. Jones, 225 F.3d 468 (4th Cir.

2000), cert. denied, 121 S. Ct. 2195 (2001) 10, 14

(IIT)

Cases—Continued:

United States v. Kanasco, Ltd., 123 F.3d 209

Page

(4th Cir. 1997) 14

United States v. Martinson, 809 F.2d 1364 (9th

Cir. 1987) 4,6, 14, 15

United States v. Mitchell, 463 U.S. 206 (1983) ..........0000 8,9

United States v. Mottaz, 476 U.S. 834 (1986) .........ccsseee ~

United States v. Nordic Village, Inc., 503 U.S. 30

(1992) 8, 10

United States v. Rotzinger, 47 F.3d 1174 (7th Cir.

1995) 15

United States v. Sanders, 48 F.3d 1233 (10th Cir.

1995) 15

United States v. Sherwood, 312 U.S. 584 (1941) ............0.. 8

United States v. Solis, 108 F.3d 722 (7th Cir.

1997) 15

United States v. Testan, 424 U.S. 392 (1976) .........ccccsse0e0 se)

United States v. Woodley, 9 F.3d 774 (9th Cir.

1993) 7,15

Statutes and rules:

Administrative Procedure Act, 5 U.S.C. 702 12

Federal Tort Claims Act:

28 U.S.C. 1346(b)(1) (1994 & Supp. V 1999) 7

28 U.S.C. 2671 et seq. 7

28 U.S.C. 2680(c) 7

18 U.S.C. 982(a)(1) 17

18 U.S.C. 982(b)(1)(a) 17

18 U.S.C. 1956(h) 17

28 U.S.C. 2414 10, 11

31 U.S.C. 1304 11

42 U.S.C. 2000e-5(k) 11

Fed. R. Crim. P.:

Rule 16(d)(2) 15

Rule 41(e) passim

In the Supreme Court of the Guited States

No. 00-1469

ESTHER BEIN AND WILLIAM BEIN, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTICRARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 19-31)

~~~ is reported at 214 F.3d 408. The opinion of the district

court (Pet. App. 1-17) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 33-

34) was entered on June 5, 2000. A petition for

rehearing was denied on December 5, 2000. The peti-

tion for a writ of certiorari was not filed until March 15,

2001, and is out of time under Rule 13.1 of the Rules of

this Court. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

STATEMENT

This case arises out of petitioners’ arrest and prose-

cution in connection with charges of conspiracy and

interstate transportation of stolen property.

1. On October 3, 1994, petitioners were arrested on

charges of conspiracy and interstate transportation of

stolen property. Pet. App. 1, 20. That same day, search

warrants were executed at petitioners’ residence and

warehouse. /bid. After a superseding indictment was

filed, petitioners pleaded guilty to conspiracy to commit

interstate transportation of stolen property and con-

spiracy to launder money. Jbid. At petitioners’ March

15, 1996, sentencing hearing, the district court ordered

the government to return to petitioners all items that

had been seized. Jbid.; C.A. App. 425. The government

returned certain items to petitioners; it later advised

petitioners that any property that had not been

returned had been destroyed. Pet. App. 21; C.A. App.

427.

2. In May of 1998, petitioners file a motion pur-

suant to Federal Rule of Criminal Procedure 41(e), in

which they sought compensatory damages or return of

the property. Pet. App. 19-21. Rule 41(e) provides:

Motion for Return of Property. A person aggrieved

by an unlawful search and seizure or by the depri-

1 Between December 14, 1994, and November 20, 1996, the

government had returned numerous seized items to petitioners.

Pet. App. 3. Between April 9 and April 11, 1996, however, the

government destroyed some items that had been seized. Pet. App.

4. Detective Conn explained that he had understood the district

court’s March 15, 1996, order as requiring the return of non-con-

traband items only. That interpretation of the district court’s

order, the district court later concluded, was “consistent with th[e]

{cJourt’s intention.” Ibid.

vation of property may move the district court for

the district in which the property was seized for the

return of the property on the ground that such

person is entitled to lawful possession of the prop-

erty. The court shall receive evidence on any issue

of fact necessary to the decision of the motion. If

the motion is granted, the property shall be re-

turned to the movant, although reasonable con-

ditions may be imposed to protect access and use of

the property in subsequent proceedings. If a motion

for return of property is made or comes on for

hearing in the district of trial after an indictment or

information is filed, it shall be treated also as a

motion to suppress under Rule 12.

Petitioners alleged that the government improperly

had destroyed 14 different types of property. Pet. App.

5-13.

After holding several evidentiary hearings, the dis-

trict court granted petitioners’ motion in part and

denied it in part. Pet. App. 1-17. With respect to

numerous items, the court concluded that petitioners

had failed to satisfy their burden of proving either the

item’s existence or its value. Jd. at 14. “Consequently,”

the court ruled, “the Government does not have any

obligation with respect to these items.” Jbid. The court

found, however, that petitioners had met their burden

of proof with respect to the existence and value of six

carts, keys, wedding and bar mitzvah invitations, and a

fax machine. Jd. at 12, 15. The court directed the

government to return the one cart still in its possession

and to pay $2450 to petitioners in compensation for the

remaining items, which had been destroyed. Id.

at 15-17.

The district court also rejected the government’s

argument that it lacked jurisdiction to award money

damages under Rule 4l(e). Pet. App. 15. Postconvic-

tion motions for the return of property seized in

connection with criminal proceedings, the court stated,

are civil equitable proceedings. Ibid. Citing United

States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987),

the district court held that, once a party has invoked

the court’s jurisdiction by moving for the return of

property, the court has jurisdiction to offer complete

relief. The court stated that the government shou!d not

“be able to destroy jurisdiction by its own conduct,” and

that “(t]he government should not at one stroke be able

to deprive the citizen of a remedy and render powerless

the court that could grant the remedy.” Pet. App. 15

(quoting Martinson, 809 F.2d at 1368). Finding that the

government had destroyed the property after the court

had ordered its return, the district court concluded that

it had ancillary jurisdiction to award damages. Id. at

16. Petitioners later filed a motion to alter or amend

the judgment to provide for additional damages; the

district court denied the motion. Jd. at 18.

3. Petitioners appealed, again seeking additional

damages. Although the government did not appeal, it

argued that petitioners were not entitled to additional

compensation under Rule 41(e) because that rule does

not accord district courts authority to award money

damages against the government in the first place. Pet.

App. 20. The Third Circuit agreed and vacated the

district court’s order insofar as it awarded money dam-

ages. Ibid.”

2 The appellate court left untouched the portion of the district

court order directing the return of the cart. The court of appeals

also affirmed the district court’s order denying petitioners’ motion

The court of appeals first observed that federal

courts “do not have jurisdiction over suits against the

United States unless Congress, via a statute, expressly

and unequivocally waives the United States’ immunity

to suit.” Pet. App. 23. “Moreover,” the court continued,

waivers of immunity “must be unequivocally ex-

pressed,” and “any such waiver must be construed

strictly in favor of the sovereign.” Jd. at 23-24 (citation

and internal quotation marks omitted). Examining the

text of Rule 41(e) in light of those principles, the court

of appeals concluded that Rule 41(e) does not waive the

United States’ immunity with respect to claims for

money damages. Jd. at 26. Relying on the Fifth Cir-

cuit’s reasoning in Pevia v. United States, 157 F.3d 984,

986 (1998), the court explained that “Rule 41(e) makes

no provision for monetary damages.” Pet. App. 26.

Instead, that rule “only provides for one express

remedy—the return of property.” Jbid. It is inap-

propriate for federal courts, the court continued, to

“read into the statute a waiver of the federal gov-

ernment’s immunity from [money] damages” where the

text of the rule itself does not provide for such a waiver.

Ibid. (quoting Pevia, 157 F.3d at 986).

In cases between private parties, the court of appeals

noted, the power of a court to grant equitable relief

may also encompass authority to offer money damages

to ensure relief is complete. Pet. App. 27. But what-

ever the merit of “this line of reasoning * * * in

analogous situations with respect to a non-govern-

mental entity,” the court of appeals concluded that “it

does not properly address” the issue of “sovereign

to alter or amend the judgment since that motion challenged only

the district court’s refusal to award additional damages. Pet. App.

20.

immunity.” bid. “In fact,” the court continued, this

Court concluded in Department of the Army v. Blue

Fox, Inc., 525 U.S. 255 (1999), that a “waiver of sover-

eign immunity does not extend beyond the express

terms of the waiver,” even where the relief sought is

equitable in nature. Jbid. Similar reasoning, the court

of appeals explained, applies here:

[T]o the extent a court may read Rule 41(e) as a

waiver of sovereign immunity, it must limit the

waiver to the express terms of the rule. We

reiterate that Rule 41(e) provides for one specific

remedy—the return of property. Although courts

treat a motion pursuant to Rule 4l1{e) as a civil

equitable action, such a characterization cannot

serve as the basis for subjecting the United States

to all forms of equitable relief. A court must strictly

construe the scope of a waiver of sovereign immun-

ity in favor of the sovereign.

Pet. App. 28.

The court of appeals noted that, although the district

court had erred, earlier case law had given that court

“reason to believe” that Rule 41(e) permits district

courts “power to award damages incident to the com-

plaint.” Pet. App. 20, 24 (citation omitted). The court of

appeals rejected that theory, however, because it

ignores the effect of sovereign immunity and the lim-

ited nature of the relief authorized by Rule 41(e). Jd. at

26.

The Third Circuit also rejected the concern, ex-

pressed by the Ninth Circuit in Martinson, supra, and

adopted by the district court in the opinion below, that

the government should not be allowed to destroy prop-

erty and thereby prevent a court from granting a

remedy. “While we respect this policy argument,” the

court stated, “it overlooks the fact that a determination

of whether Rule 41(e) authorizes an award of damages

raises a question not of mootness, but of jurisdiction.

Moreover, application of sovereign immunity, by its

very nature, will leave a person wronged by Govern-

ment conduct without recourse.” Pet. App. 25.

Accordingly, “({a]fter careful analysis,” the court of

appeals “reject{ed] the cases which allow an award of

damages in a proceeding under Rule 41(e),” because

they are inconsistent with the principle that a “Rule of

Criminal Procedure that does not expressly provide for

an award of monetary damages does not waive sover-

eign immunity.” Jd. at 26.‘

Finally, the court observed that allowing a Rule 41(e)

action for money damages could undermine the limita-

tions set forth in the Federal Tort Claims Act, 28

U.S.C. 2671 et seq.; 28 U.S.C. 1846(b)(1) (1994 & Supp.

V 1999). The court of appeals noted that, in certain

circumstances, 28 U.S.C. 2680(c) bars claims arising out

of the “detention of any goods or merchandise by

any officer of customs or excise or any other law-

enforcement officer.” “(G]ranting an award of damages

under Rule 41(e),” the court concluded, “could allow a

party to make a recovery pursuant to a procedural rule

even though he or she would be barred from such

3 The court also pointed out that a more recent Ninth Circuit

decision, United States v. Woodley, 9 F.3d 774 (1993), “appears to

be contrary to [that court’s prior] reasoning in Martinson to the

extent [Martinson] held that a district court has jurisdiction to

award monetary damages despite the fact that Rule 41(e) does not

expressly provide for such an award.” Pet. App. 25.

4 The Third Circuit also concluded that, in view of its holding, it

“need not address the broader question of whether rules of pro-

cedure, standing alone, can be found to constitute a waiver of

sovereign immunity.” Pet. App. 26 n.4.

recovery under a statute passed by Congress. Such a

result would be incongruous as it would be directly

contrary to the intent of Congress.” Pet. App. 30.

ARGUMENT

Petitioners contend (Pet. 1-5) that the district court

had authority, in proceedings under Rule 41(e) of the

Federal Rules of Criminal Procedure, to provide a

monetary remedy for destroyed property. This Court

recently declined review in another case raising the

same issue. Jones v. United States, cert. denied, 121

S. Ct. 2195 (2001). There is no reason for a different

result here.

1. Because the United States is entitled to sovereign

immunity, it “may not be sued without its consent,” and

“the existence of consent is a prerequisite for juris-

diction.” United States v. Mitchell, 463 U.S. 206, 212

(1983). Waivers of sovereign immunity must be unequi-

vocally expressed in statutory text, and are to be

strictly construed in favor of the sovereign. Depart-

ment of the Army v. Blue Fox, Inc., 525 U.S. 255, 261

(1999); Lane v. Pevia, 518 U.S. 187, 192 (1996); United

States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).

When the government does consent to be sued, “the

terms of its waiver of sovereign immunity define the

extent of the court’s jurisdiction.” United States v.

Mottaz, 476 U.S. 834, 841 (1986) (citing United States v.

Sherwocd, 312 U.S. 584, 586 (1941)).

Applying those principles, this Court has recognized

that, “[wJhere a cause of action is authorized against the

federal government, the available remedies are not

those that are ‘appropriate,’ but only those for which

sovereign immunity has been expressly waived.” Lane

v. Pevia, 518 U.S. at 197 (citation omitted). See also

OPM v. Richmond, 496 U.S. 414, 416, 424, 482 (1990)

(plaintiff entitled to money from the Treasury only if.

Congress by law expressly so directs); Automatic

Sprinkler Corp. of America v. Darla Envtl. Specialists,

53 F.3d 181, 182 (7th Cir. 1995) (“The principle of

governmental immunity is simple: anyone who seeks

money from the Treasury needs a statute authorizing

that relief.”). Consequently, when an individual seeks

an award of damages from the federal government, he

must identify a statutorily or constitutionally recog-

nized entitlement to money from the Treasury, and a

waiver of sovereign immunity permitting him to assert

that entitlement in court. See United States v. Testan,

424 U.S. 392, 400 (1976); Mitchell, 463 U.S. at 216-217

(even where jurisdiction exists, the plaintiff “must

demonstrate” that the “source of substantive law he

relies upon can fairly be interpreted as mandating

compensation by the Federal Government for the dam-

age sustained” (emphasis added) (citations and internal

quotation marks omitted)); FDIC v. Meyer, 510 U.S.

471, 484 (1994) (courts may not award damages against

federal agency absent “a waiver of sovereign immun-

ity” and a “source of substantive law [that] provides

an avenue for relief”). See also United States v. Idaho,

508 U.S. 1, 8-9 (1993) (“The cases * * * dealing

with waivers of sovereign immunity as to monetary

exactions from the United States in litigation show that

we have been particularly alert to require a specific

waiver of sovereign immunity before the United States

may be held liable for them.”).

Federal Rule of Criminal Procedure 41(e) provides

neither a waiver of immunity to suits for monetary

compensation nor a substantive right to monetary

payments from the government. Instead, Rule 41(e)

authorizes only one form of relief: District courts, Rule

41(e) specifies, may order the government to “return”

specified items of property to the property’s rightful

owner. As the Third, Fourth, and Fifth Circuits have

all recognized, federal courts are not at liberty to

supplement that authorized form of relief with an

additional money damages remedy. Pet. App. 28; Pera

v. United States, 157 F.3d 984, 986 (5th Cir. 1998);

United States v. Jones, 225 F.3d 468, 469 (4th Cir. 2000),

cert. denied, 121 S. Ct. 2195 (2001). To the contrary, the

“available remedies” against the government are not

“those that are ‘appropriate,’ but only those for which

sovereign immunity has been expressly waived.” Lane

v. Pevia, 518 US. at 197.

2. Petitioners’ attempt to distinguish this Court’s

decisions in Nordic Village, Lane v. Pera, and Blue

Fox is unavailing. Petitioners first argue that, in

Nordic Village, “Congress ha[d] not empowered a

bankruptcy court to order a recovery of money from

the United States,” Pet. 2 (quoting Nordic Village, 503

U.S. at 39); they argue that in this case “Congress has

given express rights to district courts to render

payment,” ibid. (citing 28 U.S.C. 2414). Nordic Village,

however, rested on the fact that there was no waiver of

sovereign immunity, not the absence of a cause of action

against the United States. See 503 U.S. at 39 (“Neither

§ 106(c) nor any other provision of law establishes an

unequivocal textual waiver of the Government’s im-

munity from a bankruptcy trustee’s claims for mone-

tary relief.”). Here too there is no waiver of sovereign

immunity. Rule 41(e) authorizes courts to order the

return of property. But it nowhere waives the govern-

ment’s immunity to money damages claims such as peti-

tioners’.

In any event, petitioners’ attempt to distinguish

Nordic Village rests on the mistaken premise that 28

U.S.C. 2414 gives them a privately enforceable entitle-

ment to money from the Treasury. See Pet. 2. Section

2414, however, merely authorizes the payment of

district court judgments. It presupposes that a district

court, before entering a money judgment payable under

Section 2414, will have found both (1) a congressionally

or constitutionally recognized substantive right to

money from the Treasury and (2) the waiver of immun-

ity that is a prerequisite to jurisdiction. See Trout v.

Garrett, 891 F.2d 332, 335 (D.C. Cir. 1989) (distinguish-

ing between legislation waiving sovereign immunity

such as 42 U.S.C. 2000e-5(k) and “prescriptions to facili-

tate payment of valid claims against the sovereign,

notably, 31 U.S.C. § 1804 and 28 U.S.C. § 2414”). As

this Court explained in Republic National Bank of

Miami v. United States, 506 U.S. 80 (1992), 31 U.S.C.

1304 and 28 U.S.C. 2414 do not “create an all-purpose

fund for judicial disbursement. . . . Rather, funds may

be paid out only on the basis of a judgment based on a

substantive right to compensation based on the express

terms of a specific statute.” 506 U.S. at 95 (quoting

OPM v. Richmond, 496 U.S. at 432). Here, Rule 41(e)

does not give petitioners a “substantive right to com-

pensation” for lost property, much less waive the

government’s immunity to suits seeking such compen-

sation.

Respondents also attempt to distinguish Lane v.

Pera, supra. Lane, they argue, was “not a case [in]

which a right of action exists to enforce a federal right

and Congress is silent on the question of remedies.”

Pet. 2-3 (quoting 518 U.S. at 197 (citation and internal

quotation marks omitted)). This, however, is not such a

case either. Far from creating a right of action and

being silent on remedies, Rule 41(e) speaks directly to

the issue of remedies by authorizing one remedy and

one remedy alone—the return of the property. Because

Rule 41(e) does not authorize the further remedy of

money damages, federal courts may not, consistent

with Lane v. Peja, create such a remedy (and waive the

government’s immunity to suits seeking it) on their

own.

Finally, petitioners attempt to distinguish this

Court’s decision in Blue Fox, supra. In Blue Foz, this

Court held that a plaintiff could not bring an “equitable

lien” claim under the waiver of immunity provided by

the Administrative Procedure Act (APA), 5 U.S.C. 702.

See 525 U.S. at 257. The APA waives the government’s

immunity with respect to claims for judicial review of

agency action, but excepts from the waiver (among

other things) suits seeking “money damages.” 5 U.S.C.

702. Money damages, this Court has explained, is

money given as “compensation for an injury to [the

claimant’s] person, property, or reputation,” or as a

“substitute” for a legal duty the government allegedly

breached. Bowen v. Massachusetts, 487 U.S. 879, 893,

895 (1988). In Blue Fox, the Court rejected the claim

that federal courts could order monetary relief under

the APA’s waiver of immunity whenever such relief

could be characterized as “equitable.” 525 U.S. at 262

(“(T]he equitable nature of the” relief sought “does not

mean that its ultimate claim was not one for ‘money

damages.’”). Instead, the Court explained, the “crucial

question” under the APA is whether the remedy

sought is one for which Congress has waived immunity

or an award of “money damages” for which Congress

specifically chose to withhold waiver. Jd. at 261.

Similarly here, the crucial question under Rule 41(e) is

whether the relief that petitioners seék is the “return of

the property” authorized by that Rule, or some other

form of relief, which Congress has not authorized and

for which Congress has not waived the government’s

immunity.

Petitioners further assert that Blue Fow is distin-

guishable because, in that case, the plaintiff sought the

“substituted relief of a lien” in an action where money

was to be “the end all-be all of” the suit. Pet. 3. Peti-

tioners assert that, unlike the plaintiff in Blue Foz,

they would rather have their property back. I[bid.

Even if that were true, the only question in this case is

whether a district court can order the payment of

money damages under Rule 41(e) as compensation

where property cannot be returned, 1.e., as a substitute

for the property that petitioners cannot recover. Peti-

tioners concede as much in their question presented,

which asks whether district courts have “civil equitable

powers * * * to compensate an individual for de-

stroyed property.” Pet. i. Because Rule 41(e) does not

by its terms authorize such compensatory awards, and

certainly does not waive the government’s immunity to

them, petitioners’ damages claim was properly

rejected.”

5 Petitioners also assert that their property still exists; that the

only testimony supporting destruction was from a witness who

was a “stipulated perjurer”; and that the only evidence of destruc-

tion was a document “stipulated to be false.” Pet. 3. Petitioners

further claim that the prosecutor had suborned perjured testimony

because nobody knew where the property was. Ibid. See also

Pet. 4. That factbound claim does not warrant further review. Al-

though there was a disagreement between two government

witnesses concerning whether the FBI case agent authorized,

participated in, or was aware of, the April 1996 destruction of some

of petitioners’ property, see C.A. App. 29-30, 66-76, 147-152, the

district court made no finding of per'ury. Rather, the court found

that petitioners had failed to establish the existence of numerous

items for which they sought compensation and that many of their

3. Petitioners also argue that, unlike the Third and

Fifth Circuits, the Second, Fourth, and Ninth Circuits

permit damages to be awarded under Rule 41(e). Pet. 2

(citing United States v. Martinson, 809 F.2d 1364 (9th

Cir. 1987); Mora v. United States, 955 F.2d 156 (2d Cir.

1992); United States v. Kanasco, Ltd., 123 F.3d 209 (4th

Cir. 1997)). That claimed division in the circuits does

not warrant this Court’s review.

As an initial matter, petitioners are incorrect to claim

that the Fourth Circuit permits money damages to be

awarded under Rule 41(e). In United States v. Jones,

225 F.3d 468 (2000), cert. denied, 121 S. Ct. 2195 (2001),

the Fourth Circuit held that Rule 41(e) does not

authorize federal courts to award damages against the

United States:

Rule 41(e) does not contain a waiver of sovereign

immunity. We therefore agree with the Third and

Fifth Circuits that courts lack jurisdiction to award

damages under Rule 41(e).

225 F.3d at 470 (citation omitted). In so holding, the

Fourth Circuit distinguished Kanasco, supra, the case

on which petitioners rely, on the ground that Kanasco

did not directly address the issue of sovereign immun-

ity. “Because Kanasco did not address the effect of

sovereign immunity on the legal jurisdiction of the

courts in the Rule 41(e) context,” the Jones decision

explained, the court was “free to address the issue” in

Jones. 225 F.3d at 469.

The remaining cases petitioners cite as contrary

authority are distinguishable for the same reason. Like

Kanasco, they do not squarely address whether Rule

allegations lacked credibility. See Pet. App. 5-13 (Findings of Fact

35, 43, 49, 71, 75, 80, 84, 89, 91, 94, 99, 109).

41(e) creates a substantive entitlement to money from

the Treasury and provides a waiver of immunity per-

mitting that entitlement to be asserted in court. Asa

result, those cases do not bind the courts of appeals to

any particular outcome in cases in which those issues

are raised. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 119 (1984) (“[W]hen questions

of jurisdiction have been passed on in prior decisions

sub silentio, this Court has never considered itself

bound when a subsequent case finally brings the juris-

dictional issue before us.”) (citation omitted). The

Fourth Circuit concluded that it was not bound by its

own earlier decision in Kanasco for that reason; the

Third Circuit in this case distinguished its prior rulings

in this area on similar grounds, Pet. App. 30-31; and the

Ninth Circuit has issued a decision suggesting that it

would be inclined to do likewise, id. at 25-26.’ There is

6 The same is also true of cases such as United States v. Solis,

108 F.3d 722, 723 (7th Cir. 1997) (dictum); United States v.

Sanders, 48 F.3d 1233 (10th Cir. 1995) (Table); United States v.

Rotzinger, 47 F.3d 1174 (7th Cir. 1995) (Table); Thompson v.

Covington, 47 F.3d 974 (8th Cir. 1995).

7 As the court of appeals explained (Pet. App. 25-26), the Ninth

Circuit has already issued one decision suggesting that Martinson

should not be read as resolving the sovereign immunity issue. In

United States v. Woodley, 9 F.3d 774, 781-782 (9th Cir. 1993), the

Ninth Circuit held that Federal Rule of Criminal Procedure

16(d)(2), which authorizes courts to “prescribe such terms and con-

ditions as are just” to remedy violations of discovery orders, does

not authorize the imposition of a monetary remedy against the

government. If the broader grant of authority to “prescribe such

terms and conditions as are just” does not authorize federal courts

to award money damages against the government, it follows a

fortiori that the narrow authority to order the return of property

in Rule 41(e) does not either. Pet. App. 26.

no reason to believe that the other courts, of appeals will

not reach similar conclusions.

In any event, even if some of the earlier court of

appeals decisions upon which petitioners rely could be

read as addressing the issue of sovereign immunity, cf.

Martinson, 809 F.2d at 1368 n.2, those decisions pre-

date this Court’s decisions in Lane v. Pevia or Blue Fox,

supra. Lane v. Petia makes it clear that, when Con-

gress waives immunity with respect to a cause of

action, the only available remedies are those for which

sovereign immunity has been expressly waived. Lane

v. Pena, 518 U.S. at 197. Here, Rule 41(e) permits only

one form of relief—return of the property—and

nowhere contemplates damages awards. Moreover,

while courts of appeals at one time might have assumed

that they could award damages against the government

as an “incident” to a Rule 41(e) proceeding without a

waiver of immunity because the action is “equitable,”

Blue Fox makes it clear that such an assumption is

incorrect. Even if the proceeding or cause of action is

considered “equitable,” courts are prohibited from

awarding money damages against the government in

the absence of an unambiguous statute waiving the

government’s immunity. Blue Fox, 525 U.S. at 261,

262. See also pp. 5-7, 12-13, supra. In light of those

decisions, Rule 41(e)’s mandate for return of property

cannot be read as waiving the government’s immunity

with respect to, and according claimants a substantive

right to, monetary compensation from the government.

4. Finally, petitioners argue that, even if there is no

waiver of sovereign immunity, “equity would still de-

mand a return of some of the monies ordered forfeit by

the District Court.” Pet. 3. In particular, petitioners

rely heavily on the fact that they were ordered to

forfeit money as part of their criminal sentences.

Because the government could have attached peti-

tioners’ property had petitioners not paid their $150,000

forfeiture, petitioners contend that “the converse” right

— ie., the right of petitioners to attach the money in

the Treasury based on the government’s inability to

return otherwise returnable property—“must equitably

exist.” Pet. 4.

That case-specific contention does not warrant

review. As an initial matter, neither the court of ap-

peals nor the district court addressed petitioners’ argu-

ment that they were entitled to offset their damages,

retroactively, against the already completed criminal

forfeiture. This Cour’ ordinarily does “not decide in the

first instance issues not decided below.” National

Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 470

(1999). Petitioners, moreover, were subject to law-

ful criminal forfeitures under 18 U.S.C. 982(a)(1),

982(b)(1)(a) and 1956(h).° They cite no authority for the

proposition that convicted offenders may set off debts

8 Section 982(a)(1) provides in pertinent part that “[tJhe court,

in imposing sentence on a person convicted of an offense in viola-

tion of section 5313(a), 5316, or 5324 of title 31, or of section 1956,

1957, or 1960 of this title, shall order that the person forfeit to the

United States any property, real or personal, involved in such

offense, or any property traceable to such property.” Petitioners

pleaded guilty to violating 18 U.S.C. 1956(h). C.A. App. 411-414.

As this Court explained in United States v. Bajakayian, 524 U.S.

321, 332 (1998), Section 982(a)(1)

descends not from historic in rem forfeitures of guilty prop-

erty, but from a different historical tradition: that of in

personam, criminal forfeitures. Such forfeitures have histori-

cally been treated as punitive, being part of the punishment

imposed for felonies and treason in the Middle Ages and at

common law. See W. McKechnie, Magna Carta 337-339 (2d ed.

1958); 2 F. Pollock & F. Maitland, The History of English Law

460-466 (2d ed. 1909).

allegedly owed to them by the government against a

forfeiture penalty entered against them in a criminal

case.

In any event, because petitioners’ forfeiture was

lawful, and because the forfeited sums were paid into

the United States Treasury, sovereign immunity pre-

cludes petitioners’ effort to treat the forfeited money as

an available “fund” from which they can recover com-

pensation. It is well established that “sovereign im-

munity bars creditors from attaching or garnishing

funds in the Treasury, see Buchanan v. Alexander, 4

How. 20 (1845), or enforcing liens against property

owned by the United States, see United States v.

Ansonia Brass & Copper Co., 218 U.S. 452, 471 (1910)

* * *” Blue Fox, 525 U.S. at 264. Nothing in Rule

4l(e) suggests that Congress intended to alter that

settled principle where, as here, a party does not seek

recovery of his own property from the government, but

instead seeks money from the Treasury as compensa-

tion for a suffered loss.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.