REVISED November 26, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40309

Summary Calendar

MITCHELL HAYWARD BAILEY

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Mitchell Bailey appeals the district court’s dismissal of his motion seeking

the return of property seized from him at his arrest and grant of the

government’s motion to dismiss. For the following reasons, we AFFIRM in part,

REVERSE in part, and REMAND.

I. 

Bailey was arrested on January 29, 2000 at a Border Patrol checkpoint in

Falfurrias,Texas when agents discovered marijuana concealed inside the trailer

load of cabbage he was towing. Law enforcement officers seized cash and other

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2007

Charles R. Fulbruge III

Clerk
No. 07-40309

2

personal property from Bailey atthe time of his arrest. Bailey contends that the

DEA seized $11,054. The government contends that the only currency it seized

was $7,760, which it administratively forfeited, and $872, which it returned to

Bailey’s representative. The same day, Bailey received and signed a notice that

the DEA possessed property that had been in his possession at the time of the

arrest and that it would be considered abandoned and would be disposed of

unless recovered within thirty days. On March 2, 2000 the DEA mailed notice

of its intent to forfeit $7,760 in currency. Notice was sent to Bailey at the county

jail at which he was being held and to the mailing address he had given at his

arrest. The DEA forfeiture status report indicates that notice was received at

the jail on March 10, 2000 and to the mailing address on March 11, 2000. Bailey

did not file a claim contesting the administrative forfeiture of the currency. The

DEA declared the seized currency in the amount of $7,760 to be administratively

forfeited as of May 5, 2000.

Nearly six years later, Bailey filed a pro se document requesting return of

property seized from him at the time of his arrest. The document was

postmarked April 6, 2006 but was dated March 10, 2006, and Bailey’s sworn

affidavit states that he placed it in the prison mail system on March 10. The

district court construed Bailey’s filing as a Rule 41(g) motion for return of

property. FED. R. CRIM.P. 41(g). Because Bailey’s criminal case had concluded,

the court properly construed it as a civil complaint under the court’s general

equity jurisdiction under 28 U.S.C. § 1331. See United States v. Taylor, 483 F.3d

385, 387 (5th Cir. 2007). The government filed a motion to dismiss, which the

magistrate judge construed as a motion for summary judgment because it

referred to matters and documents outside the pleadings. 

The magistrate judge found that the government earlier, in the

administrative forfeiture proceeding, had sent sufficient notice of the forfeiture

to comport with constitutional due process guarantees. The magistrate judge
No. 07-40309

3

further found that Bailey’s motion regarding his personal property was

untimely. The district court adopted the magistrate judge’s findings and

conclusions and dismissed Bailey’s motion for return of property. Bailey

subsequently filed this appeal.

II.

We review a grant of summary judgment de novo. United States v.

Robinson, 434 F.3d 357, 361 (5th Cir. 2005). Summary judgment is proper “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” FED. R. CIV. P. 56(c).

III.

Bailey contends on appeal that the DEA did not provide him with notice

of the forfeiture of his currency within 60 days of the seizure as required by the

Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983(a). The

government contends that CAFRA is not applicable to this case because its

requirements apply only to forfeitures commenced on or after August 23, 2000.

We need not decide whether CAFRA applies retroactively to the instant case

because Bailey’s claim would be time-barred under CAFRA’s five-year statute

of limitations. 18 U.S.C. § 983(e)(3). Section 983(e)(3) requires that any motion

to set aside a forfeiture must be filed within five years of final publication of

notice of seizure of the property. The government first published notice of the

seizure in the Wall Street Journal in March 2000, with a claim date of April 2,

2000. The final publication date was therefore no later than April 2, 2000, and

more than five years elapsed before Bailey filed his claim, at the earliest, on

March 10, 2006. 

On the other hand, if CAFRA does not apply, and we assume that Bailey’s

claim was filed within the six-year statute of limitations applicable to motions
No. 07-40309

4

for the return of property, Bailey’s claim still fails because he was not deprived

of due process. “Once an administrative forfeiture is complete, a district court

may review only whether the forfeiture comported with constitutional due

process guarantees.” Robinson, 434 F.3d 357 at 362 (quotation omitted). Due

process requires that a party with an interest in forfeited funds be sent notice

thatis “reasonably calculated, under allthe circumstances,to apprise interested

parties of the pendency of the [forfeiture] action and afford them an opportunity

to present their objections.” Id. Actual notice is not required. Dusenbery v.

United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed. 2d 597 (2002). In the

instant case the government presented evidence that notice of the administrative

forfeiture of $7,760 was sent to the jail where Bailey was housed and to the

address he gave at his arrest and that it was received at both locations. Bailey

offers no evidence that such notice was not sent other than his bare claim that

he did not receive it until December of 2001. Under all the circumstances, the

government’s written notice was reasonably calculated to provide Bailey with

notice and there was no due process violation arising out of the forfeiture. 

IV.

Bailey contends that $11,054 was seized from him at his arrest, $3,294

more than the $7,760 the government forfeited. The magistrate judge ordered

the government to clarify how much money was actually seized. After

considering an affidavitfrom DEA agent Kennemer who worked on Bailey’s case

and the record from Bailey’s criminal case, the magistrate judge concluded that

“the evidence did not give a definitive answer to the question of how much

money plaintiff had in his possession at the time he was arrested. However, in

regard to the forfeiture question, the only aspect of the forfeiture that plaintiff

can challenge in this proceeding is whether he received due process in the

issuance of notice of the forfeiture. Any claim he might have for conversion or
No. 07-40309

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other wrongful taking of currency other than that which was forfeited would

have to be brought in another lawsuit[.]” 

The magistrate judge correctly found that Bailey may only challenge a

completed forfeiture for violations of due process. However, Bailey’s original

motion for the return of property embraces property that the government seized

but did not forfeit, but only if the property remains in the government

defendant’s possession. A finding of whether the government actually possesses

the additional currency Bailey seeks is therefore a necessary predicate to the

resolution of his motion. See Mora v. United States, 955 F.2d 156, 159 (2d Cir.

1992) (finding that when the government denies possession of a claimant’s

property, a finding of whether the government actually retains it and, if not,

what happened to it, is a necessary predicate to deciding a motion for the return

of property). The magistrate judge found conflicting evidence as to whether the

government actually seized $11,054, and did not resolve the conflict. If this

disputed issue is resolved in Bailey’s favor, there is no evidence on the record

showing thatthe government does not currently possess the additional currency,

and the district court must proceed to the merits of Bailey’s motion. Because,

according to the magistrate judge’s own recommendation, a genuine issue of

material fact is in dispute, i.e. whether the government has, or ever had, the

claimed monies in its possession, we hold that the district court erred in

granting summary judgment as to currency Bailey alleges the government seized

but did not forfeit.

If the district court finds on remand that the government did in fact seize

the additional currency, the government bears the burden of showing what

happened to it. See United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th

Cir. 2001) (finding that the person from whom property is seized is presumed to

have a right to its return and that the government must submit some evidence

that seized property was destroyed to support its motion to dismiss a Rule 41(e)
No. 07-40309

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proceeding) (citing United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999)).

If the district court finds that the government no longer possesses the currency

Bailey seeks, his motion must be denied because the government cannot return

property it does not possess, and the doctrine of sovereign immunity bars the

award of monetary damages under Rule 41(g). See Peña v. United States, 157

F.3d 984, 986 (5th Cir. 1998) (finding that sovereign immunity bars a suit for

monetary damages under Rule 41(e)). The district court should, however,

consider allowing Bailey the opportunity to amend his pleadings to assert any

claim he may have under Bivens v. Six Unknown Named Agents, 403 U.S. 388,

91 S.Ct. 1999, 29 L.Ed 2d 619 (1971), or other applicable law. See Peña, 157

F.3d at 986.

V.

To the extent Bailey seeks the return of additional personal property

seized from him at his arrest, his claim is untimely. The six-year statute of

limitations in 28 U.S.C. § 2401(a) applies to civil actions for the return of

property. See United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004)

(applying § 2401(a) to a Rule 41(g) motion for return of property). Under federal

law, a cause of action accrues when the plaintiff is “in possession of the critical

facts that he has been hurt and who has inflicted the injury.” Gatrell v. Gaylor,

981 F.2d 254, 257 (5th Cir. 1993) (citations omitted). Other courts have held

that, in cases of seized property where no forfeiture proceedings were conducted,

a claim accrues at the end of the “limitations period during which the

government is permitted to bring a forfeiture action, at which time the

claimant–without other notice–had reason to know that the forfeiture

proceedings had begun (or that the property was being held) without due

process.” Polanco v. United States Drug Enforcement Admin., 158 F.3d 647, 654

(2d Cir. 1998) (citation omitted).
No. 07-40309

1 Although Bailey contends that he never gave permission, the government presented

evidence that Bailey instructed his son-in-law Greg Taylor to collect his personal property and

that the property was in fact surrendered to Taylor on February 2, 2000.

7

No administrative or judicial forfeiture occurred with respect to Bailey’s

additional personal property. However, after his arrest, the government made

the property available for Bailey or his representative to collect. Bailey received

formal notice of the government’s possession of his property on January 29,

2000, the date of his arrest, in a letter from the DEA, which he signed. The

letter stated that his property would be considered abandoned and disposed of

if not claimed within 30 days. Bailey was therefore on notice that he had the

right to have his property returned and that it was subject to disposal on

February 28, 2000 if not claimed. February 28, 2000 was therefore the latest

date any claim for return of his personal property could accrue. See United

States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004) (stating that, once criminal or

forfeiture proceedings have concluded or statutes of limitations have expired,

“the claimant knows that he has a present right to [his property]’s return, and

he shouldn’t be permitted to postpone his request for its return indefinitely.”).

At that time, Bailey could have challenged the disposition of his personal

property. Even if his claim was filed March 10, 2006, as he avers, more than six

years had elapsed since he had reasonable notice ofthe government’s permanent

disposition of his property.1 His claim for the return of his personal property is

therefore untimely. 

VI.

For the foregoing reasons, the judgment of the district court dismissing

Bailey’s motion and granting the government’s motion to dismiss is AFFIRMED

in part and REVERSED in part, and the case is REMANDED for proceedings

consistent with this opinion.