United States District Court, D. Oregon
WILLIAM L. GHIORSO WILLIAM D. BRANDT Attorneys for Plaintiff
J. WILLIAMS United States Attorney KEVIN C. DANIELSON
Assistant United States Attorney Attorneys for Defendant
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE
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
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.
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, 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
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.” First Am. Compl. at ¶ 8.
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.
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 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.
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.
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.” 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
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.
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.
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.
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
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 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 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. §
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.
24, 2019, Defendants filed a Motion to Dismiss in which they
seek dismissal of Plaintiff's First Amended Complaint.
Dismissal for Lack of Jurisdiction Pursuant to Rule
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
Fed.Appx. 755, 756 (9th Cir. 2011) (same).
immunity is jurisdictional in nature. Indeed, the
‘terms of [the United States'] consent to be sued
in any 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
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).
Dismissal for Failure to State a Claim Pursuant to Rule
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');">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
“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');">127 S.Ct. 1955
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.
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 ...