                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3979
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Roy Lee Hall,                            *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: June 12, 2001

                                   Filed: October 19, 2001
                                    ___________

Before LOKEN and HALL,* Circuit Judges, and ROSENBAUM,** District Judge.
                             ___________

LOKEN, Circuit Judge.

       Roy Lee Hall was convicted of conspiracy to distribute and possession with
intent to distribute methamphetamine. We affirmed his conviction and sentence. See
United States v. Hall, 171 F.3d 1133, 1138 (8th Cir. 1999), cert. denied, 529 U.S.
1027 (2000). Hall then filed a pro se motion for the return of property federal agents

      *
       The HONORABLE CYNTHIA HOLCOMB HALL, United States Circuit
Judge for the Ninth Circuit, sitting by designation.
      **
        The HONORABLE JAMES M. ROSENBAUM, Chief Judge of the United
States District Court for the District of Minnesota, sitting by designation.
had seized during their pretrial investigations. The district court granted the motion,
and the government returned some property to Hall. However, the government
advised that it could not return Hall’s 1978 Chevrolet pickup and a waterbed
headboard and liner because “these items were turned over to a towing service August
8, 1995, and have been out of the custody of the government since that time.” Hall
then filed an amended motion seeking money damages in lieu of the missing property.
The district court granted that motion and awarded Hall $2100 as the fair market
value for his lost property, rejecting the government’s contention that the court lacked
jurisdiction to award money damages under Rule 41(e) of the Federal Rules of
Criminal Procedure. The government appeals. Concluding that sovereign immunity
bars the district court’s award of monetary relief under Rule 41(e), we reverse and
remand for further proceedings.

      Criminal Rule 41 contains detailed provisions governing the issuance, contents,
execution, and return of search warrants in federal criminal cases. When first adopted
in 1944, Rule 41 replaced federal statutes previously covering the same subjects.1
Rule 41(e) provides a judicial procedure by which any person, including those not
accused of federal offenses, may seek to recover property that has been seized by
federal agents. Rule 41(e) provides in relevant part:

             (e) Motion for Return of Property. A person aggrieved by an
      unlawful search and seizure or by the deprivation of property may move
      the district court for the district in which the property was seized for the
      return of the property on the ground that such person is entitled to lawful
      possession of the property. The court shall receive evidence on any
      issue of fact necessary to the decision of the motion. If the motion is
      granted, the property shall be returned to the movant, although
      reasonable conditions may be imposed to protect access and use of the
      property in subsequent proceedings.

      1
       See Espionage Act of June 15, 1917, ch. 30, tit. XI, 40 Stat. 228-30, codified
at 18 U.S.C. §§ 611-33 (1925).

                                          -2-
        Because Rule 41(e) does not expressly authorize an award of money damages,
the question has occasionally arisen whether a moving party is entitled to such relief
if the property seized by the government has been lost, destroyed, or transferred to a
third party. Noting that Rule 41(e) proceedings are equitable in nature, some circuits
have concluded (or at least strongly suggested) that federal courts may award money
damages, pursuant to their inherent power to afford adequate equitable relief, when
the moving party is entitled to the return of property the government has lost,
destroyed, or transferred. See Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir.
1992); Mora v. United States, 955 F.2d 156, 161 (2d Cir. 1992); United States v.
Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987). Though we have not addressed the
question of money damages, we have relied upon Soviero and Mora in holding that
Rule 41(e) proceedings do not become moot merely because the government is no
longer in possession of the property in question. Thompson v. Covington, 47 F.3d
974, 975 (8th Cir. 1995), followed in United States v. Willson, 2001 WL 521446 (8th
Cir. May 17, 2001) (unpublished), and Thompson v. FBI, 1997 WL 413605 (8th Cir.
July 23, 1997) (unpublished), cert. denied, 522 U.S. 1032 (1997). The district court
concluded that these decisions establish its jurisdiction to award Hall $2100 in lieu
of the lost property. We disagree.

       None of the above-cited cases addressed the question of sovereign immunity.2
Apparently, the government did not raise the defense in those cases, perhaps because
Supreme Court decisions such as Bowen v. Massachusetts, 487 U.S. 879 (1988),
suggested that a statute granting power to award equitable relief against the United
States authorizes the award of incidental monetary relief. But the sovereign immunity
landscape has changed in the last ten years. In United States v. Nordic Village, Inc.,

      2
       Accordingly, the district court erred in considering itself bound by these prior
Eighth Circuit cases. “[W]hen questions of jurisdiction have been passed on in prior
decisions sub silentio, this Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue before us.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 119 (1984) (quotation omitted).

                                         -3-
503 U.S. 30, 39 (1992), the Court construed a provision of the Bankruptcy Code as
authorizing declaratory and injunctive relief against the government but held that it
did not contain the “unequivocal textual waiver” required to authorize “a recovery of
money from the United States.” In Lane v. Pena, 518 U.S. 187, 197 (1996), the Court
held the United States immune from damage claims under § 504 of the Rehabilitation
Act, agreeing with the government that, “where a cause of action is authorized against
the federal government, the available remedies are not those that are ‘appropriate,’
but only those for which sovereign immunity has been expressly waived.” Finally,
in Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 263 (1999), the Court
narrowly construed Bowen, holding that the Administrative Procedure Act, by
authorizing equitable relief but not money damages against the United States, does
not waive the government’s sovereign immunity from monetary relief that is
“compensation for the loss,” even if that monetary relief is labeled “equitable.”

       In the wake of Nordic Village, Lane, and Blue Fox, three other circuits have
concluded that Rule 41(e) does not contain the explicit waiver of sovereign immunity
required to authorize monetary relief against the government when property cannot
be returned. See United States v. Jones, 225 F.3d 468, 470 (4th Cir. 2000), cert.
denied, 121 S. Ct. 2195 (2001); United States v. Bein, 214 F.3d 408, 415 (3d Cir.
2000), petition for cert. filed, 69 U.S.L.W. 3646 (U.S. Mar. 15, 2001) (No. 00-1469);
see also United States v. Pena, 157 F.3d 984, 986 (5th Cir. 1998). We agree.
Requiring the government to pay Hall $2100 for the lost property is clearly a
compensatory remedy; in the words of Blue Fox, it is “substitute and not specific
relief.” 525 U.S. at 263. “[W]aivers of the Government’s sovereign immunity, to be
effective, must be unequivocally expressed.” Nordic Village, 503 U.S. at 33
(quotation omitted). Rule 41(e) contains no such waiver, and we may not use general
equitable principles to fill the gap. As the Tenth Circuit said in United States v.
30,006.25 in U.S. Currency, 236 F.3d 610, 614 (10th Cir. 2000), cert. denied sub
nom. Rodgers v. United States, No. 00-10412 (U.S. Oct. 1, 2001), “fairness or policy
reasons cannot by themselves waive sovereign immunity.” See also Library of

                                         -4-
Congress v. Shaw, 478 U.S. 310, 321 (1986). Accordingly, the district court
exceeded its Rule 41(e) jurisdiction in awarding monetary relief.

       However, this Rule 41(e) proceeding is not moot. Other statutes authorize
money damages against the United States, such as the Tucker Act, 28 U.S.C. § 1491,
the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and the Federal Tort Claims Act, 28
U.S.C. §§ 2671-81. A cause of action may accrue under one or more of those statutes
when the government discloses that it has lost, destroyed, or transferred property that
would otherwise be subject to a Rule 41(e) order to return. If such a cause of action
has accrued, the government’s sovereign immunity from an award of money damages
may well be waived. See United States v. Mitchell, 463 U.S. 206 (1983). Therefore,
when a district court conducting a Rule 41(e) proceeding learns that the government
no longer possesses property that is the subject of the motion to return, the court
should grant the movant (particularly a movant proceeding pro se, such as Hall) an
opportunity to assert an alternative claim for money damages. The court also retains
equitable jurisdiction under Rule 41(e) to resolve issues of fact that may help to
determine whether such an alternative claim is cognizable. See United States v.
Chambers, 192 F.3d 374, 378 (3d Cir. 1999).

     The district court’s order dated November 8, 2000 is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.

ROSENBAUM, District Judge, concurring.

      I join the Court’s opinion, but write separately to express my view that the law
we are bound to apply is ill-considered in the context of Rule 41 of the Federal Rules
of Criminal Procedure. I urge its reconsideration.

      We hold, as we must, that sovereign immunity bars monetary relief in this case.
But our holding does nothing to deter the government’s flagrant violation of Rule 41

                                         -5-
and nothing to constrain its bald abuse of power. Justice Stevens predicted this when
dissenting from one of the decisions compelling our ruling. He wrote, “The injustice
that the Court condones today demonstrates that it is time to reexamine the wisdom
of the judge-made rules that drive its decision.” United States v. Nordic Village, Inc.,
503 U.S. 30, 39 (1992) (Stevens, J., dissenting).

        The facts of this case exemplify the injustice Justice Stevens foretold. The
government seized Mr. Hall’s property under color of Rule 41, but thereafter disposed
of it in derogation of its concomitant duty to return private property not needed for
evidence. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). In
doing so, the government carelessly deprived one of its citizens of his property. It did
so after availing itself of the very Federal Rule it would later disregard.
Unfortunately for Mr. Hall, however, the authors of Rule 41 did not anticipate that
the government would flagrantly disregard the Rule’s mandate.

        In the absence of any effective penalty for non-compliance with the dictates of
Rule 41, the government more than once has disposed of private property to which
its citizens held lawful title. As a result, several Circuit Courts of Appeals have
invoked their inherent equitable powers and ordered the government to pay damages
after it has lost, destroyed, or transferred seized private property. See Soviero v.
United States, 967 F.2d 791, 792-93 (2d. Cir. 1992); Mora v. United States, 955 F.2d
156, 161 (2d Cir. 1992); United States v. Martinson, 809 F.2d 1364, 1368 (9th Cir.
1987). In Martinson, the Ninth Circuit observed, “When a citizen has invoked the
jurisdiction of a court by moving for return of his property, we do not think that the
government should be able to destroy jurisdiction by its own conduct. The
government should not at one stroke be able to deprive the citizen of a remedy and
render powerless the court that could grant the remedy.” Martinson, 809 F.2d at
1368. With today’s holding, we allow the government to do precisely that.




                                          -6-
       The Supreme Court’s recent sovereign immunity precedents constrain us to
deny recompense after the government has disregarded a Federal Rule, approved of
by both the Supreme Court and Congress. See United States v. Nordic Village, 503
U.S. 30, 33 (1992) (“Waivers of the Government’s sovereign immunity, to be
effective, must be unequivocally expressed.” (internal quotations omitted)); Id. at 34
(“[T]he Government’s consent to be sued must be construed strictly in favor of the
sovereign.” (internal quotations omitted)); Lane v. Pena, 518 U.S. 187, 192 (1996)
(“A waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in statutory text . . . and will not be implied.”).

       In the past three years, three of our sister Circuit Courts of Appeals have been
obliged to rule the same way. See United States v. Jones, 225 F.3d 468, 470 n.3 (4th
Cir. 2000) (“We are mindful of the concern expressed by the Ninth Circuit [in
Martinson] that the government should not be able to defeat jurisdiction by the
unilateral act of destroying the property sought in a Rule 41(e) motion. . . . We are
bound, however, to honor the government’s sovereign immunity from damages in a
Rule 41(e) action.”); United States v. Bein, 214 F.3d 408, 413-15 (3d Cir. 2000)
(“While we respect this policy argument [of the Ninth Circuit in Martinson], . . .
application of sovereign immunity, by its very nature, will leave a person wronged
by Government conduct without recourse.”); United States v. Pena, 157 F.3d 984, 986
(5th Cir. 1998) (“However compelling his case, Pena may not maintain a suit against
the United States for monetary damages under Rule 41(e).”).

        The reasoning supporting our holding today seems suspect, and the Executive
Branch’s claim of sovereign immunity seems hollow. Consider: the Federal Rules
of Criminal Procedure did not simply spring forth like Athena from the forehead of
Zeus. The Executive Branch – through the Department of Justice – has substantial
input into the Rules drafting process. Proposed Rules are offered to the Supreme
Court, which approves the proffered Rules and forwards them to Congress. Congress
is, thereafter, afforded the statutory authority to accept, amend, or reject the proposed

                                          -7-
Rules. See Rules Enabling Act, 28 U.S.C. §§ 2071-74. Through this process
Congress allowed Rule 41 to go into effect.

       The Executive Branch is aware of the nature of sovereign immunity; the
Judicial and Legislative Branches know it, too. Each assented to Rule 41's dictate
requiring the government to return seized property to which it has no claim. The
instruction is explicit. Under these circumstances, when all three Branches of our
government assent to a Rule, it hardly seems an implicit waiver of the government’s
sovereign immunity when the government must be forced to answer for its citizen’s
losses after it flaunts the Rule.

       Every legitimate assertion of sovereign immunity, by its nature, leaves a
person wronged by government conduct without recourse. See Bein, 214 F.3d at 413.
But when all Branches of government have had a hand in imposing an affirmative
duty upon the government, a court-contrived version of sovereign immunity
needlessly exacerbates this harsh rule. Cf. Nordic Village, Inc., 503 U.S. at 45-46
(Stevens, J., dissenting) (“The Court’s stubborn insistence on ‘clear statements’
burdens the Congress with unnecessary reenactment of provisions that were already
plain enough when read literally. The cost to litigants, to the legislature, and to the
public at large of this sort of judicial lawmaking is substantial and unfortunate. Its
impact on individual citizens engaged in litigation against the sovereign is tragic.”
(footnote omitted)).

       Our opinion correctly notes that both the Tucker Act and the Federal Tort
Claims Act authorize money damages. Similarly, when the Fifth Circuit Court of
Appeals held that sovereign immunity bars monetary relief under Rule 41, it granted
the property owner leave to amend his pleadings to include a Bivens claim against the
federal agents directly to seek redress for his loss. See Pena, 157 F.3d at 987. The
possibility of alternative relief to some extent ameliorates this case’s bitter outcome.



                                          -8-
But we sully, rather than protect, the nation’s sovereignty when we erect a
constitutional shield guarding the government from its own wrongdoing.

      So, as we must, we reverse the District Court. But this Judge respectfully
suggests it is well past time to reconsider the law requiring us to do so.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -9-
