United States District Court, D. Nebraska
M. Gerrard United States District Judge
center of this dispute is a gold necklace previously owned by
the defendant, Gabriel Alonso Ruelas-Lugo. In 2014, law
enforcement officials seized the necklace (and other personal
items) while booking the defendant into the Lancaster County
Jail. Filing 54. Two years later, when the defendant sought
the return of his property, he was informed that the necklace
had been auctioned, and other personal items destroyed. The
defendant now seeks monetary damages from the United States
for the loss or destruction of his property. Filing 50. For
the reasons discussed below, the defendant's motion will
be granted in part, and denied it in part, and this matter
will be (upon joint motion of the parties) set for an
parties' dispute began in 2016, when the defendant filed
a motion to return property under Fed. R. Crim. P. 41(g).
Filing 39. That rule provides an avenue for criminal
defendants to obtain property that the government has
lawfully (or unlawfully) seized from the defendant's
possession. In his motion, the defendant sought the return of
his gold necklace-"which cost is over $5, 000
dollars"-and his wallet, which contained certain
personal belongings. See filing 39 at 4-5. The Court
granted that motion in part (filing 45), authorizing the
Lincoln Police Department to release the property to Etelvina
Avitia-Vizcarra arrived at the police station to retrieve the
items, however, she was informed that the gold necklace had
been auctioned and the wallet destroyed. Filing 46. So, the
defendant filed a separate motion, also under Rule 41(g),
seeking reimbursement from the government in the amount of
$5, 000.00. Filing 46. The Court denied that motion because,
as the Eighth Circuit Court of Appeals has established, Rule
41 does not provide for money damages when the government
loses or destroys personal property. United States v.
Hall, 269 F.3d 940, 942-43 (8th Cir. 2001).
Court also recognized that a Rule 41 motion does not become
moot simply because the property is no longer retrievable.
Id. Rather, "when a court determines that the
government no longer possesses the property whose return is
sought, it should grant the movant an opportunity to assert
an alternative claim for money damages." United
States v. Bailey, 700 F.3d 1149, 1152-53 (8th Cir. 2012)
(cleaned up). The defendant was granted that opportunity
(filing 47), and in May 2017, he filed this motion, seeking
monetary damages under the Little Tucker Act. Filing 50.
Tucker Act confers jurisdiction in the Court of Federal
Claims over any claim against the United States for money
damages "founded either upon the Constitution, or any
Act of Congress[.]" 28 U.S.C. § 1491(a)(1). The
Little Tucker Act confers concurrent jurisdiction upon
district courts when the damage claim is $10, 000.00 or less.
See 28 U.S.C. § 1346(a)(2). These statutes,
however, create no substantive rights for money damages
enforceable against the United States. Rather, "the
claimant must demonstrate that the source of substantive law
he relies upon can fairly be interpreted as mandating
compensation by the Federal Government for the damage
sustained." United States v. Mitchell, 463 U.S.
206, 216-217 (1983) (internal quotations omitted).
Little Tucker Act is implicated in this case because, as both
parties acknowledge, the defendant seeks less than $10,
000.00 in money damages from the United States. See
filing 50 at 10. Less clear, however, is the source of
substantive law on which that claim relies. Indeed, the
defendant cites the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346 et seq., which waives the United
States' sovereign immunity for certain torts committed by
federal employees. See filing 50 at 4. But exempted
from the FTCA's waiver of sovereign immunity is any claim
arising from the "detention of any goods, merchandise,
or other property by any . . . law enforcement
officer[.]" 28 U.S.C. § 2680(c); see
Kosak v. United States, 465 U.S. 848, 854 (1984).
And as the government correctly points out, this case falls
squarely within that exception. Filing 50; see
United States v. Norwood, 602 F.3d 830, 833 (7th
Cir. 2010); Adeleke v. United States, 355 F.3d 144,
153-54 (2d Cir. 2004). Accordingly, to the extent the
defendant seeks monetary damages under the FTCA, his request
will be denied.
Court also construes the defendant's filings as alleging
a takings claim under the Fifth Amendment to the U.S.
Constitution, which provides in relevant part: "nor
shall private property be taken for public use, without just
compensation." U.S. CONST. amend. V, cl. 4. And that
claim fares better because, as several courts have
acknowledged, a takings claim "gives rise to
jurisdiction under the Tucker Act." AmeriSource
Corp. v. United States, 75 Fed.Cl. 743, 747 (2007),
aff'd, 525 F.3d 1149 (Fed. Cir. 2008); see
Parkridge Investors Ltd P'ship v. Farmers Home
Admin, 13 F.3d 1192, 1200 (8th Cir. 1994) ("an
individual claiming that the United States has taken property
can seek just compensation under the Tucker Act[.]");
Adeyi v. United States, 2008 WL 793595, at *7
(E.D.N.Y. 2008) (collecting cases). Thus, the defendant will
be allowed to pursue his claim on those grounds.
not to say, however, that the defendant has proven
an entitlement to just compensation. That would require a
showing that the property, or proceeds resulting therefrom,
was taken for "public use." U.S. CONST. amend. V,
cl. 4. And that, in turn, would presumably require evidence
(1) disconnecting the necklace from the crime of arrest,
see Kam-Almaz v. United States, 682 F.3d 1364, 1371
(Fed. Cir. 2012); and (2) tying the proceeds from the auction
to some public good. Further, assuming the "public
use" element is satisfied, the defendant must prove the
amount of compensation due. The Court assumes that such
compensation, if warranted here, would be equal to the amount
the government received at auction.
a tall order. But it is one that the Court can, and will,
explore after further discussions between the parties.
Bailey, 700 F.3d at 1152-53; United States v.
Chambers, 192 F.3d 374, 378 (3d Cir. 1999). To that end,
the parties will be ordered to contact the Magistrate Judge
within two weeks of the Court's issuance of this Order to
schedule an in-chambers planning conference. There, the
parties shall (1) identify the information and documentation
within their possession that is, or may be, relevant to the
defendant's underlying claim for just compensation; and
(2) in the event that certain information or documentation is
not readily accessible, develop a plan to secure it to the
extent reasonably possible.
information shared and exchanged at that meeting (or in
subsequent discussions) will form the basis of an evidentiary
hearing before the undersigned, which the Court will schedule
upon joint motion of the parties. That hearing will focus
only on the requirements set forth above: (1)
whether the proceeds were used for "public use";
and (2) if so, the amount of just compensation due. The
defendant may be present if there is eventually an
evidentiary hearing; however, he need not-and should not-be
transported to Nebraska for the parties' planning
final matter, it appears from the parties' joint
stipulation that several items of the defendant's
property, including his wallet, remain in the custody of the
Lincoln Police Department. Filing 54 at 2. As set forth in
the stipulation, the defendant (through a designee) is
encouraged to pick up those items "upon notice to the
LPD Property Room." Filing 54 at 2.
the Court will deny the defendant's motion to the extent
that he seeks monetary damages from the United States under
the FTCA. The Court will allow the defendant, however, to
pursue his claim for just compensation under the Takings
Clause. With respect to that claim, the parties shall, within
two weeks of the Court's issuance of this order, schedule
a planning conference with the Magistrate Judge. At the
conclusion of that meeting, and after necessary preparation,
the parties shall file ...