F I L E D

United States Court of Appeals

Tenth Circuit

DEC 28 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

$30,006.25 (THIRTY THOUSAND

SIX DOLLARS AND 25/100) IN

UNITED STATES CURRENCY;

$1,951.00 (ONE THOUSAND NINE

HUNDRED FIFTY-ONE) DOLLARS

IN UNITED STATES CURRENCY;

CHEVROLET CORVETTE 1979 VIN

#1Z8789S449896, ONE AND THE

PROCEEDS THEREOF;

CHEVROLET CORVETTE 1977 VIN

#1Z37L7S421309, ONE AND THE

PROCEEDS THEREOF; FORD

ECONOLINE E-150 VAN VIN

#1FDEE14F4EHA92259 ONE AND

THE PROCEEDS THEREOF,

Defendants,

_______________________________

JOE EARL RODGERS,

Claimant-Appellant.

No. 00-5046
* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

-2-

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-743-E)

Submitted on the briefs: *

Stephen C. Lewis, United States Attorney for the Northern District of Oklahoma,

and Catherine J. Depew, Assistant United States Attorney, Tulsa, Oklahoma, for

Plaintiff-Appellee.

Joe Earl Rodgers, pro se.

Before TACHA , EBEL and BRISCOE , Circuit Judges.

EBEL , Circuit Judge.

Following the government’s two unsuccessful attempts to forfeit currency

and other property seized from claimant-appellant Joe Earl Rodgers, the district

court ordered the government to return the property to Rodgers. The only issue

presented on this appeal is whether the government must pay prejudgment interest

on the amount of money due Rodgers. We agree with the district court that the

“no-interest rule” prohibits the government from paying interest in this situation
-3-

because there is no applicable waiver of sovereign immunity. We therefore

affirm.

I.

In February 1991, Oklahoma law enforcement officers arrested Rodgers

under state drug laws and seized currency and property from his residences. At

some point, he was charged by federal indictment with conspiracy to distribute

cocaine, and federal authorities adopted for federal forfeiture many of the items

seized by local authorities. These items included (1) $30,006.25 in U.S. currency;

(2) $1,951.00 in U.S. currency; (3) a 1977 Chevrolet Corvette; (4) a 1979

Chevrolet Corvette; and (5) a 1984 Ford Econoline van. The government

(specifically, the Drug Enforcement Administration) forfeited the seized items on

the ground they were used in or acquired as a result of a drug-related offense. 

See 21 U.S.C. §§ 881(a)(4), (a)(6). Rodgers challenged the forfeitures, and on

appeal, this court vacated them on the basis that the government failed to provide

Rodgers with adequate notice of the pendency of the forfeiture proceedings. 

United States v. Rodgers , 108 F.3d 1247, 1251-55 (10th Cir. 1997). 

On May 30, 1997, the government began new administrative forfeiture

proceedings against the same items and, since it had sold the vehicles in 1991, the

proceeds of the vehicles. When Rodgers asserted a claim to the property, the

government instituted this civil forfeiture action. See 19 U.S.C. § 1608. Rodgers
1 We note that the district court cited Title 28 rather than Title 19 of the

U.S. Code for the applicable statute of limitations. The forfeiture procedures

relating to the customs laws apply to forfeitures occasioned by violation of the

drug laws. 21 U.S.C. § 881(d). 

2 Under Ninth Circuit law, the type of account the money was deposited in

affects the amount of interest for which the government is liable. See United

(continued...)

-4-

moved to dismiss the government’s complaint, and the district court granted the

motion, concluding that the forfeiture action was barred by the statute of

limitations. See 19 U.S.C. § 1621 (requiring that forfeiture proceedings be

“commenced within five years after the time when the alleged offense was

discovered”). 1

 The government filed a notice of appeal, but dismissed its appeal

following issuance of our decision in Clymore v. United States , 164 F.3d 569

(10th Cir. 1999). 

After the government dismissed its appeal, Rodgers moved to compel the

return of the property. The government did not object to the motion per se, but

because it had already sold the three vehicles, it requested the district court to

value them at the amounts it had received at auction. In response, Rodgers filed a

“motion to disclose,” in which he contended he was entitled to interest on the

currency seized and on the cash the government received for the vehicles, citing

United States v. $277,000 U.S. Currency , 69 F.3d 1491 (9th Cir. 1995), and he

wanted the government to “disclose” the type of interest-bearing account in which

the money was deposited. 2

 In reply, the government acknowledged there is a split
2

(...continued)

States v. $133,735.30 , 139 F.3d 729, 731-32 (9th Cir. 1998). 

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in the circuits on whether the government must pay prejudgment interest when

ordered to return money, but argued that the better-reasoned view held that

sovereign immunity barred the payment of prejudgment interest, citing United

States v. $7,990.00 in U.S. Currency , 170 F.3d 843 (8th Cir.), cert. dismissed , 120

S. Ct. 577 (1999), and Ikelionwu v. United States , 150 F.3d 233 (2d Cir. 1998).

In resolving the issue, the district court noted that the only disputed matter

was whether Rodgers was entitled to interest on the amounts owed him by the

government, and it agreed with the Eighth and Second Circuits that sovereign

immunity barred Rodgers’ claim for interest. The court granted the government’s

motion to approve the value of the vehicles sold at the amount the government

received at auction, and it ordered the government to return the currency seized

and the proceeds of the vehicles to Rodgers, without interest. Rodgers filed a

timely notice of appeal, and argues only that the district court erred in not

requiring the government to pay interest on the amounts due him. He does not

challenge the district court’s determination regarding the value of the vehicles.
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II.

As noted above, the circuits are split on whether the government can be

ordered to pay interest when it must return seized property to a claimant following

an unsuccessful forfeiture action. The Eighth and Second Circuits hold that

sovereign immunity bars an award of interest since the government has not

waived its immunity from suit in this respect. $7,990.00 , 170 F.3d at 845-46;

Ikelionwu , 150 F.3d at 239. While acknowledging there is no relevant waiver of

sovereign immunity, the Ninth and Sixth Circuits view the matter not as an award

of interest, but as the government’s duty to disgorge property, earned while the

seized res was in the government’s hands, that was not forfeited. $277,000 , 69

F.3d at 1498; United States v. $515,060.42 in U.S. Currency , 152 F.3d 491, 504

(6th Cir. 1998). We cannot agree with the Ninth and Sixth Circuits that

recharacterizing an interest award as a disgorgement of profits circumvents the

effect of sovereign immunity. 

The United States, as sovereign, is immune from suit except as it consents

to be sued, and “[a] waiver of sovereign immunity cannot be implied but must be

unequivocally expressed.” United States v. Mitchell , 445 U.S. 535, 538 (1980)

(quotation omitted). This basic rule of sovereign immunity has led to what is

known as the no-interest rule: “In the absence of express congressional consent

to the award of interest separate from a general waiver of immunity to suit, the
3

In moving in the district court to compel the return of the money, Rodgers

cited Fed. R. Crim. P. 41(e). A motion for return of seized property pursuant to

Rule 41(e), which is governed by equitable principles, is not the appropriate

procedure in this situation because the judicial forfeiture proceedings initiated by

the government and § 2465 provide Rodgers with an adequate legal remedy. See

United States v. Akers , 215 F.3d 1089, 1106 (10th Cir.), cert. denied , 2000 WL

1578322 (U.S. Nov. 27, 2000) (No. 00-6612); Frazee v. IRS , 947 F.2d 448,

449-50 (10th Cir. 1991). 

-7-

United States is immune from an interest award.” Library of Congress v. Shaw ,

478 U.S. 310, 314 (1986). “For well over a century, this Court, executive

agencies, and Congress itself consistently have recognized that federal statutes

cannot be read to permit interest to run on a recovery against the United States

unless Congress affirmatively mandates that result.” Id. at 316; see also Edwards

v. Lujan , 40 F.3d 1152, 1153-54 (10th Cir. 1994); Sandia Oil Co. v. Beckton ,

889 F.2d 258, 261 (10th Cir. 1989).

As the Eighth Circuit has explained, “[w]hen the government has

unsuccessfully sought to forfeit previously seized property under 21 U.S.C.

§ 881(a)(6), no statute expressly authorizes the payment of prejudgment interest

to the successful claimant.” $7,990.00 , 170 F.3d at 844-45. Although the district

court did not cite a statutory basis for ordering the government to return the

currency and proceeds to Rodgers following its decision, the applicable statute is

28 U.S.C. § 2465. 3 Cf. Republic Nat’l Bank of Miami v. United States , 506 U.S.
-8-

80, 95-96 (1992) (holding that § 2465 provides for return of proceeds of seized

property that was subsequently sold). Section 2465 provides as follows:

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 of prosecution.

Id. The provision for the payment of costs does not authorize the payment of

interest. Shaw, 478 U.S. at 321; $7,990.00 , 170 F.3d at 845. 

Despite the lack of a statutory basis for the award of interest on returned

property, the Ninth and Sixth Circuits have not found sovereign immunity to bar

the recovery of prejudgment interest. 

While sovereign immunity customarily precludes the

Government’s liability for interest prior to a judgment [citing Shaw],

to the extent that the Government has actually or constructively

earned interest on seized funds, it must disgorge those earnings along

with the property itself when the time arrives for a return of the

seized res to its owner. . . . [W]e do not view the award of interest in

this case as the typical award of pre-judgment interest which cannot

be recovered absent an express waiver of sovereign immunity; rather,

we view this award of interest as an aspect of the seized res to which

the Government is not entitled as it did not succeed in its forfeiture

action. 

$515,060.42 , 152 F.3d at 504; accord $277,000 , 69 F.3d at 1492. 

We cannot agree that the Ninth and Sixth Circuits have found a legitimate

exception to the no-interest rule. Regardless of what they call it, they are
4 We also note that the district court in the Ninth Circuit case $277,000 had

ordered that the government could deposit the seized currency in an interestbearing account pending the currency’s disposition, and that “all parties thought

that this was exactly what would happen.” 69 F.3d at 1494. The First Circuit

also ordered the government to pay interest on seized funds when the district

court had ordered the funds placed in an interest-bearing account and the

defendant had reasonably interpreted his plea agreement to require the

government to apply interest earned on the funds to his civil tax assessment. 

United States v. Kingsley , 851 F.2d 16, 18, 21 (1st Cir. 1988). Here, there is no

indication the district court ever ordered the seized currency or proceeds to be

deposited in an interest-bearing account, and we need not consider whether such

an order would affect the government’s obligation to pay interest. 

(continued...)

-9-

allowing an award of interest against the United States without a waiver of

sovereign immunity, but “the force of the no-interest rule cannot be avoided

simply by devising a new name for an old institution.” Shaw, 478 U.S. at 321. 

To the extent their holdings stem from the fact that the government may be

unjustly enriched if it is not forced to “disgorge” its profits from the seized

property and that a contrary holding is unfair, they do not cite, nor are we aware,

of any general waiver of sovereign immunity for unjust enrichment claims. 

Moreover, fairness or policy reasons cannot by themselves waive sovereign

immunity. Shaw, 478 U.S. at 321 (“Courts lack the power to award interest

against the United States on the basis of what they think is or is not sound

policy.”) (quotation omitted); see also United States v. Bein , 214 F.3d 408, 413

(3d Cir. 2000) (“[A]pplication of sovereign immunity, by its very nature, will

leave a person wronged by Government conduct without recourse.”). 4
4

(...continued)

-10-

III.

We thus hold that sovereign immunity prohibits the award of interest on the

currency and proceeds returned to Rodgers. Though of little help to Rodgers at

this point, we note that Congress, through the Civil Asset Forfeiture Reform Act

of 2000, has now waived sovereign immunity with respect to interest on returned

currency, negotiable instruments and proceeds. Pub. L. No. 106-185, § 4(a), 114

Stat. 202, 211-13 (2000) (codified at 28 U.S.C. § 2465(b)(1)(C)). This provision

does not apply to this case because, with one exception not relevant here, it was

not effective with respect to forfeiture proceedings commenced prior to August

23, 2000. Id. § 21, 114 Stat. at 225. 

The judgment of the district court is AFFIRMED.