* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 5, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20731

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:89-CR-229-3

--------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Luis Rodriguez, federal prisoner # 00582-424,

challenges the district court’s dismissal of his motion for

return of property, filed pursuant to FED. R. CRIM. P. 41(g), as

time-barred by the six-year statute of limitations set forth in

28 U.S.C. § 2401(a). Although Rodriguez’s motion was filed

pursuant to Rule 41(g), the criminal proceeding against Rodriguez

had concluded when he brought this action. Accordingly, we treat

the Rule 41(g) motion as a § 1331 action, seeking the return of

property, and treat the district court’s denial of that motion as
No. 05-20731

-2-

** We observe that the record does not suggest that the

seized property at issue in this case was administratively

forfeited. 

a grant of summary judgment in favor of the Government. See

Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000). We

review de novo the district court’s determination that the action

was barred by limitations. Id.

The six-year statute of limitations in § 2401(a) governs

civil actions for return of property. United States v. Wright,

361 F.3d 288, 290 (5th Cir. 2004). 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.’” Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir.

1993)(citations omitted). Rodriguez does not dispute that he was

aware of the purported seizure of items from 895 Elizabeth

Street, San Benito, Texas, as of 1989 and also knew of the

purported seizure of items located in the safety deposit box as

of 1992. He necessarily would have been aware, as of 1989 and

1992, of the lack of notice that any forfeiture had been

initiated as to the property.** Rodriguez’s 2005 motion for

return of property was untimely. See Gartrell, 981 F.2d at 257;

see Polanco v. Drug Enforcement Administration, 158 F.3d 647, 654

(2d Cir. 1998) (holding that a cause of action for return of

property forfeited without sufficient notice accrued at the

earliest of the following: 1) at the close of the forfeiture

proceedings; or 2) if no forfeiture proceedings were conducted,
No. 05-20731

-3-

*** Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). 

at the end of the five-year limitations period for the Government

to bring a forfeiture action). Although equitable tolling

applies to § 2401(a)’s limitations period, Clymore, 217 F.3d at

374, we decline to apply it under the circumstances of this case

because the record does not reflect that Rodriguez exercised due

diligence. See Baldwin v. County Welcome Ctr. v. Brown, 466 U.S.

147, 151 (1984). 

If the Government does not have the property, the only

relief possible for Rodriguez would be in the form of money

damages. See Armendariz-Mata v. U.S. Dep’t of Justice, DEA, 82

F.3d 679, 682 (5th Cir. 1996). Assuming, without deciding, that

Rodriguez had a cause of action under Bivens,

*** any such action

is time-barred. See Pena v. United States, 157 F.3d 984, 987

(5th Cir. 1998) (observing that Pena’s motion for the return of

seized property presented the facts necessary for a Bivens

action); TEX. CIV. PRAC. & REM. CODE § 16.003(a) (providing

applicable two-year limitations period).

AFFIRMED.