legal claim.” Kirksey v. R.J. Reynolds Tobacco Company, 168 F.3d 1039, 1041 (7 Cir. 1999)
“Complaints need not plead law or match facts to every element of a legal theory...” Bennett v.
Schmidt, 153 F.3d 516, 518 (7" Cir. 1998).

Collateral Estoppel

Under the doctrine of collateral estoppel, or issue preclusion, “‘once an issue is actually

and necessarily determined by a court of competent jurisdiction, that determination is conclusive
in subsequent suits based upon a different cause of action involving a party to the prior
litigation.” Adair v. Sherman, 230 F.3d 890, 893 (7" Cir. 2000)(internal cite omitted). There
are four requirements for invoking collateral estoppel: (1) the issue to be precluded must be the
same as the issue in the prior litigation; (2) the issue must have been actually litigated in the prior
action; (3) the determination of the issue must have been essential to the prior judgment; and (4)
the party against whom estoppel is invoked was represented by counsel in the prior litigation. Id.
Collateral estoppel is an affirmative defense, so the burden in establishing it rests on the party
invoking it. Id. at 894.

Federal Tort Claims Act - Exhaustion of Administrative Remedies

“No one may file suit under the Federal Tort Claims Act without first making an

administrative claim...” and the claim must be filed with the appropriate agency within two years
of the date that the claim accrued Kanar v. United States, 118 F.3d 527, 528 (7" Cir. 1997).

The purpose of this requirement is to make certain the claimant exhausts his administrative
remedies before filing suit. Murrey v, United States, 73 F.3d 1448, 1451-2 (7" Cir. 1996). If the
administrative tort claim filed with the agency is deemed inadequate, the court is divested of

jurisdiction over the action. Id. at 1451.


has presented no cases indicating an affirmative duty on the part of the government to provide
such warning notifications. There may be sound reasons for implying such a duty as a part of
the good faith settlement process. On the other hand, an overburdened agency may have
difficulties enough reviewing the claim at all within the six-month deadline.

While the case is a close one, we must conclude that the administrative claim was
defective. The claim includes a laundry list of property, most of which is described in general
terms, such as “gold bracelet” and “pendants.” (Claim at 2) A reader is left to idly speculate as to
their value. Moreover, Plaintiff asks for compensation for his “emotional injury and physical
loss” sustained as a result of the loss of the property. (Claim at 2-3.) There is no basis for even
guessing what compensation the Plaintiff seeks for this portion of the claim.

The Plaintiff, represented by counsel, filed his claim, knowing full well the value of his
property. Indeed, he has attached some receipts to his complaint. Further, he and his counsel
undoubtedly had a dollar figure in mind for his emotional/physical distress claim. Yet despite
this knowledge, Plaintiff failed to even allude to a dollar figure in his claim. It is impossible to
make a settlement offer if you have no idea what a claimant seeks. Therefore, Plaintiff’s failure
to include a sum certain undermined the settlement process.

Bivens Claims

The government maintains that Bivens action against the agents is barred by collateral
estoppel. The government asserts that the validity of the search and arrest was argued before
Judge Conlon in the forfeiture action, and her ruling necessarily concluded that both were valid.
Plaintiff responds to the government’s argument in half a page and largely concedes it.

Nonetheless, the Plaintiff maintains that Judge Conlon’s decision did not address the propriety of


inadequate as a matter of law because it failed to specify a “sum certain,” as required by 28 CFR
§ 14.2(a). Plaintiff maintains that a valid claim need not comply with every technical
requirement §14.2(a). Moreover, Plaintiff argues that the government should not be permitted to
claim that the filing was inadequate now, as the government made no such assertion during the
processing period, but instead merely let the statute of limitations for filing a new claim expire.
Our decision will rest on a determination of exactly how much the Seventh Circuit’s Kanar
decision limits or invalidates prior precedent.

Prior to Kanar, this issue would be cut and dried. A claim was defined by the
requirements of 28 USC §14.2(a), and such a conforming claim had to be filed as a prerequisite
to any suit. Best Bearing Co. v. United States, 463 F.2d 1177, 1179 (7" Cir. 1972). Moreover,
the Seventh Circuit had specifically held that presentation of a “sum certain” was essential to a
valid claim. Erxleben v. United States, 668 F.2d 268, 271-2 (7" Cir. 1981). The court
concluded that the presentation of a sum certain was essential for facilitating settlement and to
setting limits on recoveries in future actions. Jd. at 271. The court emphasized that the utter
failure to include any dollar amount in the claim necessarily defeated the purpose of the
provision. Jd. at 272. In addition, a more recent case noted the strictness of Standard Form 95,
and concluded a claim must include a detailed statement of facts and a “demand for money.”
Murrey, 73 F.3d at 1452.

However, even some early cases have noted that affirmative duties are placed on the
government. For example, if a federal agency fails to timely transfer or return a misfiled claim,
pursuant to 28 CFR §14.2(b), and the statute of limitations runs during the delay, the claim may

be deemed timely presented to the proper agency. Bukala v. United States, 854 F.2d 201, 204 (7"


A “claim” has been defined’ by the Department of Justice as follows:

..a Claim shall be deemed to have been presented when a Federal agency receives

from a claimant, his duly authorized agent or legal representative, an executed

Standard Form 95 or other written notification of an incident, accompanied by a

claim for money damages in a sum certain for injury to or loss of property,

petsonal injury, or death alleged to have occurred by reason of the incident; and

the title or legal capacity of the person signing, and is accompanied by evidence of

his authority to present a claim on behalf of the claimant as agent, executor,

administrator, parent, guardian, or other representative.
28 CFR § 14.2(a). Under the regulation, a claim has four components: (1) notification of an
incident; (2) a request for a sum certain; (3) the title/capacity of the person signing; and (4)
evidence of the signer’s authority as a representative. Kanar, 118 F.3d at 528. Failure to strictly
comply with these requirements will not foreclose litigation, unless the failure hinders the
settlement process. Jd. at 530-1.

DISCUSSION

We begin our discussion with one observation. Plaintiff's claim for the return of his
$9000 is absolutely foreclosed, at least in this court, by Judge Conlon’s forfeiture decree. With
that, we proceed to the two issues raised in the motion: (1) whether the Plaintiff's FTCA claim is
foreclosed by his failure to submit an adequate administrative claim; and (2) whether the Bivens
action against the agents is foreclosed by collateral estoppel.
FTCA Claim

The government maintains that the court has no jurisdiction over the FTCA claim

because the Plaintiff failed to exhaust his administrative remedies due to his failure to file a

legally adequate claim. The government argues that Plaintiffs administrative claim was

3 There is no statutory definition. See Kanar, 118 F.3d at 528.

5


There is a paucity of subsequent case law addressing the sum certain requirement.* Our
research has located one district court case that concluded that the failure to include a demand for
a sum certain was fatal to an administrative claim. Laughlin v. Commissioner of Patents &
Trademarks, No. 98cv0535, 1999 WL 203286, at *3 (N.D. Ill. March 31, 1999).

Plaintiff notes there is some dicta in Kanar questioning whether requiring a sum certain is
at odds with the statutory exceptions for newly discovered evidence and intervening facts. 118
F.3d at 529.5 However, this discussion is in the context of a critique of other circuits that do not
accept that 28 CFR §14.2(a) provides the operative definition of a “claim.” See Id. Moreover,
the two exceptions that the court refers to are directed to the amount that can be sought in a
federal court action at the conclusion of any agency proceeding. See 28 U.S.C. § 2675(b). This
reference does not appear to foreclose a requirement that a claimant at least attach an initial,
“ballpark” amount to his claim, particularly given that the claim can be amended before the
agency any time prior to decision. See 28 CFR § 14.2(c). Plaintiff also notes that the
government failed to notify the Plaintiff that they deemed his claim defective. It was the
plaintiff's failure to correct his claim after numerous such notifications that the Kanar court

deemed decisive in ascertaining whether the settlement process was scuttled. We note Plaintiff

* A recent unpublished Seventh Circuit decision holds that the failure specify a sum
certain renders an administrative claim defective. Ward v. United States, No. 00-2706, 2001 WL
30500 (7" Cir. Jan. 4, 2001)(unpublished). While the case does reference Kanar and deal with
the same issue as the instant case, the fact remains that unpublished decisions of our appellate
court have no precedential value.

5 “Action under this section shall not be instituted for any sum in excess of the amount of
the claim presented to the federal agency, except where the increased amount is based upon
newly discovered evidence not reasonably discoverable at the time of presenting the claim to the
federal agency , or upon allegation and proof of intervening facts, relating to the amount of the
claim.” 28 U.S.C. § 2675(b).


G Order Fp (06/97)

‘ United States District Court, Northern District of [linois

ange Maginrae Judge John A. Nordberg “Than Assigned Jadge

CASE NUMBER 00 C 6499 DATE 12/26/2001
CASE Ibrahim Oyesile vs. United States of America
TITLE

[In the following box (a) indicate the party filing the motion, ¢g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

@ a Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) ira Ruling/Hearing on set for at

(5) a Status hearing[held/continued to] [set for/re-set for]on__setfor__at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—sat__

(7) o Trial[set for/re-set for]on___at

(8) im [Bench/Jury trial] [Hearing] held/continued to_____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) General Rule21 CIFRCP41(a)(1) [FRCP41(a)(2).

qo) =o [Other docket entry} Enter memorandum Opinion and Order. Defendants’ motion to dismiss is

granted. (8-1)

(dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open cour.

Ne wired,
‘0 notices required. number of notices

Notices mailed by judge's staff. AN 0 8 2002

Notified counsel by telephone.

date docker

/ | Docketing to mail notices.

Mail AO 450 form.

dokketing May initials

<date mailed notice

TP deputy’s
initigls ¢

Date/time received in - 7
central Cletk’s Office iain deputy nts



85 F.3d 1225, 1227-8 (7" Cir. 1996). Further, the individual agents do not have custody of his

property, and they are not the ones to grant or deny its return. The only proper defendant for

such a claim is the government, as Plaintiff presented in Count I. The Bivens claim is dismissed.
CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED.

DATED: /

1]


the seizure of the noncash property, and that “a Bivens action lies in the totally unjustified seizure
and holding of the plaintiff's jewelry and watches.” (Plaintiff's Response at 3.)

We note that the standards for collateral estoppel are met. First, Plaintiff does not contest
that the issue of the propriety of the search and arrest is the same in both cases. Second, Plaintiff
does not contest that the issue of the propriety of the search and arrest was actually litigated,
being fully presented to Judge Conlon in a motion for summary judgment. Third, Plaintiff does
not appear to contest that resolving the issue was essential to Judge Conlon’s final ruling. This is
not surprising, as a challenge to a forfeiture can take the form of a motion to suppress. See
generally U.S. v. $32,400.00 in U.S. Currency, 82 F.3d 135 (7° Cir. 1996). Fourth, Plaintiff
does not dispute (and the docket confirms) that Plaintiff was represented before Judge Conlon by
the same counsel representing him in this court.

Judge Conlon concluded that the search and arrest was pursuant to a warrant (by
necessary implication a valid one). See Conlon Opinion at 1-2. As Plaintiffs Bivens claim is
based on the allegations that the agents searched his home and arrested him without a warrant,
and lacked any basis for doing so, his claim is foreclosed.

Plaintiff's response, that the agents are still on the hook for seizing and retaining his
noncash property, is essentially a nonsequitor. First, it has nothing to do with the claims raised
against the agents in his complaint, which are in the nature of wrongful imprisonment and
malicious prosecution. Plaintiff may not amend his complaint in his response to a motion to
dismiss. Second, to the extent he asserts that he can seek relief for the agents “holding” his
property, he is exceeding Bivens and pursuing the wrong “defendant.” Bivens actions are to

obtain money damages for constitutional deprivations. See generally Sterling v, United States,

10


Cir. 1988). The Bukala court also noted that the purpose of the claim procedure was “to provide
for ‘more fair and equitable treatment of private individuals and claimants when they deal with
the Government or are involved in litigation with their Government.”” 854 F.2d at 203 (internal
cite omitted). Even Erxleben court noted the provision’s equitable intent. The “statute

is ‘intended to provide a framework conducive to the administrative settlement of claims, not to
provide a basis for a regulatory checklist which, when not fully observed, permits the termination
of claims regardless of their merits.’” 668 F.2d at 273 (internal cite omitted).

The Kanar decision narrowed some of these precedents: “To the extent Best Bearings and
Erxleben use a jurisdictional analogy to conclude that nothing short of a ‘claim’ as defined in §
14.2(a) ever suffices, they have been overtaken by Jrwin-although their principal conclusion that
§ 14.2(a) defines a ‘claim’ remains good law.” 118 F.3d at 531. So, at present, §14.2(a) defines
a claim, but harmless failures to comply with its requirements are not fatal. In Kanar, the
plaintiff failed to meet criteria #4 of §14.2(a), presentation of evidence that his attorney had
authority to represent him. The court noted the government could have presumed that the
plaintiff's attorney had the requisite authority and proceeded to deal with the claim. Jd.
However, the agency instead asked the plaintiff to submit the necessary materials, he steadfastly
refused, and the agency closed the file. Jd. The Seventh Circuit concluded that the agency’s
action was reasonable, and that the plaintiff's failure to comply with the agency’s request
completely subverted the settlement process. Jd. As such, plaintiff's failure to comply with

criteria #4 was not harmless, and the case was properly dismissed. Jd.


that the Bivens claims are barred by collateral estoppel as a consequence of Judge Conlon’s
ruling. As to the former, the government maintains that Plaintiff’s failure to provide a “sum
certain” in his administrative claim was a fatal defect. As to the latter, the government asserts
that the legality of the search and arrest were presented to Judge Conlon, and her ruling
necessarily reflects the conclusion that both passed muster.
LEGAL STANDARDS

Motion to Dismiss

Evaluating the legal sufficiency of a plaintiff's factual allegations requires the courts to
adhere to a strict standard. A court may grant a motion to dismiss only if “it is clear that no relief
could be granted under any set of facts that could be proved consistent with the allegations.”
Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir.1993)(quoting Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984)). When considering a Rule 12(b)(6) motion, the court must
accept as true all well-pleaded factual allegations in the complaint and view them, along with the
reasonable inferences to be drawn from them, in the light most favorable to the plaintiff.
Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir.1993).
However, the court need not accept as true conclusory legal allegations. Baxter v. Vigo County
School Corp., 26 F.3d 728, 730 (7th Cir.1994). “The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.
Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but
that is not the test.” Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7" Cir. 1995) (quoting
Scheuer v. Rhodes, 416 U.S, 232, 236 (1974)). All that F.R.C.P. Rule 8 requires to state a claim

in federal court “is a short statement, in plain (that is, ordinary, nonlegalistic) English, of the


property and compensation for “the emotional injury and physical loss of his property.” (See
Complaint, Exhibits.) After six months of silence, the government rejected the claim.'
Plaintiff filed another motion for return of the property before Judge Gettleman.? On August 21,
2000, the government “responded” to this motion by filing a forfeiture action against the $9000
of currency. (Case # 00cv5121 before Judge Conlon.)

Shortly thereafter, Plaintiff filed a two-count complaint in this court against the
Defendants. Count I is directed against the government, pursuant to the Federal Tort Claims Act
(“FTCA”), and seeks the return of the $9000 in currency and his various other property (or
compensation it), which Plaintiff claims was wrongfully seized and retained by the government.
Count II is directed against the agents, styled as a Bivens action, and seeks compensatory and
punitive damages for malicious prosecution and false imprisonment. Plaintiff maintains that he
was arrested without a warrant, charged, and jailed for two days based upon the agents’ false
statements regarding his involvement in drug trafficking. (Complaint at 8-12.) On March 12,
2001, Judge Conlon entered an order of forfeiture in case #00cv5121, finding that there was
probable cause that the $9000 in currency was traceable to drug trafficking. According to the
docket, no appeal was taken from this decision.

Currently before the court is Defendants’ motion to dismiss on the grounds that the court

cannot hear the FTCA claim due to Plaintiff's failure to exhaust administrative remedies, and

'This delay is potentially critical, as the two- year limitations period for filing a claim
elapsed during the period.

We note that Plaintiff's frustration appears justified, as he has presented transcripts in
which the Assistant U.S. Attorney repeatedly states that Plaintiff's property will be returned to
him. However, it is not clear whether the government actually has the noncash property, as
Plaintiff acknowledges that Defendants denied that they ever seized it.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
IBRAHIM OYESILE, )
)
Plaintiff, )
) No. 00 C 6499
ve ) ; ;
) HONORABLE JOHN A. NORDBERG
UNITED STATES OF AMERICA, et al, )
)
Defendants. y

DOCKETED

JAN 0 8 2002
MEMORANDUM OPINION AND ORDER

Plaintiff Ibrahim Oyesile brought this action against Defendant United States of America
and Defendants John Jimenez, Joseph Cleary, and Thomas Wilson, all FBI Agents and all sued in
their individual capacities. Before the court is Defendants’ Motion to Dismiss.

BACKGROUND

The rather limited alleged facts are taken from the Plaintiffs complaint. Plaintiff was the
owner of $9000 in U.S. Currency, a gold bracelet, a gold bracelet with diamonds, two gold
chains, three pendants, and four watches (two Raymond Wells, one Rado, and one Movada). On
January 14, 1998, the agents entered his home, without a warrant, arrested him and seized the
listed property. Plaintiff was charged with a violation of.21 U.S.C. ¢ 846, and held in custody
from January 14, 1998 until the government dismissed the charges on January 16, 1998. While
in custody, he filed a motion seeking the return of his property, which Judge Gettleman denied
without prejudice. After his release, he filed another such motion, which Judge Gettleman
denied based on the government’s representation that it intended to file a forfeiture action. On

July 22, 1999, Plaintiff filed an administrative claim with the FBI, seeking the return of his

tr