UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN D. SMITH,

 Plaintiff,

 v.

JEFF SESSIONS, ATTORNEY GENERAL,

 

 Defendant.

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Case No. 2:16cv0100-PPS-JEM

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED 

COMPLAINT

At issue is whether Plaintiff can recover damages against the United 

States of America or against Attorney General Jefferson Sessions for the loss 

of property seized by agents of the Bureau of Alcohol, Tobacco, Firearms and 

Explosives in the investigation of the underlying criminal case against 

Plaintiff. The Amended Complaint does not set forth the basis of this Court’s 

jurisdiction or allege the legal grounds for recovery against the United States 

or any factual basis for recovery against the Attorney General. As set forth 

below, the few possible grounds for recovery against the United States are 

unavailing. The only damages remedy for the loss of property in these types 

of situations is administrative, specifically, the submission of a claim to the 

Attorney General of the United States pursuant to 31 U.S.C § 3724(a). 

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Liability under the Federal Tort Claims Act

The Federal Tort Claims Act waives sovereign immunity and allows 

individuals to recover damages against the United States for the tortious 

conduct of its employees committed while acting within the scope of their 

employment. 28 U.S.C. § 1346(b)(1) and 28 U.S.C. §2671, et seq. Excepted 

from such waiver, however, is liability arising from the “detention of any ... 

property by any ... law enforcement officer. 28 U.S.C. § 2680(c). 

The property seized herein by law enforcement officers of the ATF 

during the investigation in the underlying criminal case and subsequently 

lost falls within the exception to the waiver. See Kosak v. United States, 465 

U.S. 848, 104 S.Ct. 1519 (1984); Parrot v. United States, 536 F.3rd 629, 635 

(7th Cir. 2008).

An exception to the exception permits claims against the United States 

for injury or loss of goods or property in law enforcement custody if the 

claimant can satisfy four conditions:

(1) the property was seized for the purpose of forfeiture under any 

provision of Federal law providing for the forfeiture of property other 

than as a sentence imposed upon conviction of a criminal offense;

(2) the interest of the claimant was not forfeited;

(3) the interest of the claimant was not remitted or mitigated (if the 

property was subject to forfeiture); and

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(4) the claimant was not convicted of a crime for which the interest of 

the claimant in the property was subject to forfeiture under a Federal 

criminal forfeiture law.

§ 2680(c)(1)-(4). The failure to satisfy any one of the above conditions 

prevents a plaintiff from availing himself of the re-waiver of sovereign 

immunity. See Pearson v. United States, 373 Fed.Appx. 662 (7th Cir. 2010) 

(stating that claimant must meet all four of the requirements set forth in in 

order to benefit from the re-waiver of sovereign immunity.)

Claimant cannot satisfy the first and fourth conditions to bring his 

claim within the re-waiver provision. With respect to the first condition –

that the property was seized for forfeiture – the Indictment does not identify 

the property at issue herein as being subject to forfeiture (DE 1 in USA v. 

John Smith, Case No 2:11-cr-53). Nor did the United States in its Motion For 

Preliminary Order of Forfeiture (DE 135 in Case No. 2:11-cr-53) seek to 

forfeit such property. Claimant cannot meet his burden of establishing that 

the property was seized solely for forfeiture, rather than for only evidence or 

both evidence and forfeiture. Seizure for purposes of evidence or for purpose 

of both evidence and forfeiture defeats the re-waiver provision. Pearson, p. 2. 

Even assuming the first condition is present, the exception to the exception 

does not apply because Claimant cannot satisfy the fourth condition. 

Claimant was convicted on charges of violations of 21 U.S.C. §§ 846 and 841

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(DE 105) for which forfeiture of Claimants property is authorized pursuant to 

21 U.S.C. § 853.

The Government acknowledges that it cannot account for certain items 

that were seized1. However, no relief for the loss of this property is 

cognizable under the Federal Tort Claims Act.2 Therefore, to the extent 

Plaintiff seeks to recover damages under the Federal Tort Claims Act, the 

Amended Complaint should be dismissed pursuant to F.R.C.P. 12(b)(6) for 

failure to state a claim upon which relief can be granted.

Liability under the Tucker Act

It is unclear whether the Tucker Act, 18 U.S.C. § 1491, is a basis for 

relief the loss of the property. See U.S. v. Norwood, 602 F.3d 830, 834-835 

(7th Cir. 2010) (discussing, but not deciding whether the deprivation of 

property under circumstances similar to the one at bar gives rise to a claim 

under the Tucker Act for deprivation of property without due process). 

However, the Court is without jurisdiction to decide the issue, because 

Plaintiff seeks damages in the sum of $190,500.00. This Court only has 

concurrent jurisdiction with the Court of Federal Claims with respect to 

claims against the United States not exceeding $10,000.00 that are based on

 1 In response to the Court’s Order (DE 45) regarding the disposition of 8 identified items, the Government 

responded that it could not account for item 4 (envelope containing loose diamonds; part of item 5 (a diamond 

earing; and item 8 (one male and one female diamond ring) DE 47.

2 Even is such relief were available, Plaintiff failed to first file an administrative claim with the seizing agency, a 

prerequisite to bringing an action against the United States. See 28 U.S.C. § 2675.

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the Constitution, or any Act of Congress, or any regulation or implied or 

express contract with the United States. 28 U.S.C. § 1346(a)(2). If Plaintiff 

does have a cause of action under the Tucker Act for damages in excess of 

$10,000.00, the claim must be brought in the Court of Federal Claims. 

Accordingly, the Amended Complaint should be dismissed pursuant to 

F.R.C.P. 12(B)(1) for lack of subject matter jurisdiction or, alternatively, 

transferred to the Court of Claims.

Suit Against the Attorney General

The Amended Complaint was brought against Attorney General Jeff 

[sic] Sessions. No other defendants are name. If Plaintiff is seeking relief 

against the General Sessions in his individual capacity, the Amended 

Complaint should be dismissed pursuant F.R.C.P. 12(b)(2), because and (4) 

because no process has been served on AG Sessions. Dismissal is also 

warranted under F.R.C.P. 12(b)(6), because the Amended Complaint makes 

no allegations as to AG Sessions personal involvement. Similarly, to the 

extent Plaintiff is suing the Attorney General in his official capacity as head 

of the Department of Justice, an executive agency of the United States, the 

Amended Complaint should be dismissed for lack of service of process.

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Congress Provided an Adequate Remedy at Law Which Precludes a 

Bivens Action Against Law Enforcement Officers for Loss of the 

Property

Congress has provided a remedy for persons aggrieved by the wrongful 

loss of property occasioned by law enforcement officers of the Department of 

Justice. 31 U.S.C. § 3724. Section 3724 provides, in relevant part, as 

follows:

(a) The Attorney General may settle, for not more than $50,000 in any 

one case, a claim for ... damage to, or loss of, privately owned property, 

caused by an investigative or law enforcement officer as defined in 

section 2680(h) of title 28 who is employed by the Department of 

Justice acting within the scope of employment that may not be settled 

under chapter 171 of title 28 .... A claim may be allowed only if it is 

presented to the Attorney General within one year after it accrues.

(b) A claim may be paid under this section only if the claimant accepts 

the amount of the settlement in complete satisfaction of the claim 

against the Government.

The procedure provided by § 3724 is adequate to preclude a Bivens claim 

for a due process violation. See, Marulanda v. USMS, 467 Fed.Appx. 590, 590–

91 (9th Cir.2012); Aron v. Green, 2014 WL 1917543, at *4 (N.D.Tex. May 12, 

2014); Jones v. Federal Bureau of Prisons, 2013 WL 5300721, at *12 (E.D.N.Y. 

Sept. 19, 2013); Hoskins v. Craig, 2013 WL 675734, at *2–*3 (S.D.Ill. Feb. 25, 

2013); Salter v. Nickerson, 2013 WL 866198, at *9–*10 (E.D.Tex. Jan. 25, 

2013), Report and Recommendation Adopted, 2013 WL 866475 (E.D.Tex. Mar. 

7, 2013); Frith v. Hill, 2009 WL 3073716, at *7 (S.D.N.Y. Sept. 23, 2009).

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Plaintiff has not availed himself of this remedy and the time to do so 

has likely expired. Nonetheless, to the extent that Plaintiff asserts a Bivens

claim against AG Sessions, or any unidentified law enforcement officer, on 

due process grounds, the claim should be dismissed since Congress provided 

an adequate remedy to preclude such a claim.

Conclusion

For the foregoing reasons, Plaintiff’s Amended Complaint should be 

dismissed.

Respectfully submitted,

THOMAS L. KIRSCH II

UNITED STATES ATTORNEY

/s/ Orest Szewciw 

Orest Szewciw

 Assistant United States Attorney

United States Attorney’s Office

Northern District of Indiana

5400 Federal Plaza, Suite 1500 

Hammond, Indiana 46320 

Tel: (219)937-5500

Fax: (219)852-2770

Email:orest.szewciw@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on March 19, 2018, the Memorandum In Support 

Of Motion To Dismiss Amended Complaint was electronically filed with the 

Clerk of the Court using the CM/ECF system which sent notification of such 

filing to the following: N/A. 

I hereby certify that I have mailed by United States Postal Service this 

document to the following non CM/ECF participants:

John D. Smith, # 11563-027

TALLADEGA FCI

Federal Correctional Institution

Inmate Mail/Parcels

P.O. Box 1000

Talladega, AL 35160

/s/ Orest Szewciw

Orest Szewciw

Assistant U.S. Attorney

OFFICE OF:

United States Attorney

5400 Federal Plaza, Suite 1500

Hammond, IN 46320

Tel: (219) 937-5500

Fax: (219) 852-2770

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