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Williams v. Federal Bureau of Investigation

United States District Court, D. Oregon

October 18, 2019

STEVEN WILLIAMS, JR., Plaintiff,
v.
THE FEDERAL BUREAU OF INVESTIGATION, THREE UNKNOWN NAMED AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, and THE UNITED STATES, Defendants.

          WILLIAM L. GHIORSO WILLIAM D. BRANDT Attorneys for Plaintiff

          BILLY J. WILLIAMS United States Attorney KEVIN C. DANIELSON Assistant United States Attorney Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT 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, 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 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.” 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 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. § 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 Fed.Appx. 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 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');">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 (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 ...


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