                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 November 30, 2012
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 EDWARD K. SHIGEMURA,

               Plaintiff-Appellant,                      No. 12-6229
          v.                                           (W.D. of Okla.)
 UNITED STATES OF AMERICA,                       (D.C. No.5:12-CV-00694-C)

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Edward Shigemura is a federal prisoner serving a 78-month prison

sentence. He appeals the district court’s dismissal of his claim under the Federal

Tort Claims Act (FTCA) for lack of subject matter jurisdiction. Shigemura’s

FTCA claim concerns property that the FBI allegedly lost following his arrest in

2009. Because the district court properly concluded that there is no waiver of



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
sovereign immunity given the circumstances of the property’s seizure, the district

court’s order of dismissal is AFFIRMED.

                                 I. Background

      Shigemura was arrested in February 2009 and charged with being a felon in

possession of a gun. Shigemura had been driving a car with two other passengers.

After stopping and searching the car, the police found $17,504.36 in cash on one

of the passengers and $41,983 in cash in a backpack located in the trunk. United

States v. Kitchell, 653 F.3d 1206, 1213–14 (10th Cir. 2011), cert. denied sub nom.

Shigemura v. United States, 132 S. Ct. 435 (2011).

      At sentencing, after a jury convicted him of the gun charges, Shigemura

claimed that the money was not his. After his sentence was affirmed on appeal,

id. at 1229, Shigemura filed a Federal Rule of Criminal Procedure 41(g) motion

for return of seized property. Specifically, Shigemura sought the return of

$44,853.39, the portion of the money seized that he now claimed belonged to him

plus other personal property. The district court denied his motion, and this court

partially affirmed, holding that because Shigemura failed to file an administrative

claim to challenge the forfeiture the district court had no jurisdiction to hear his

case. United States v. Shigemura, 664 F.3d 310, 312 (10th Cir. 2011), cert

denied, 132 S. Ct. 1952 (2012). This court remanded the case back to the district

court to consider Shigemura’s claim that the government still retained some

personal property that was not subject to forfeiture. Id. at 312–13.

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      On remand, the government claimed that only two items were in its

possession, a cell phone and a pair of running shoes. Shigemura, believing that

more property was in the government’s possession, requested the district court to

convert his Rule 41(g) motion to a FTCA claim. The court declined to do so, but

it did order the government to return the two items to Shigemura.

      On May 11, 2012, Shigemura filed an administrative claim for $452 with

the FBI office in Oklahoma City, Oklahoma. The FBI denied his claim, stating

that the claim was not timely filed pursuant to 28 U.S.C. § 2401. Shigemura then

filed a FTCA claim in district court, seeking $452 in damages for loss of personal

property.

      The district court referred the FTCA claim to a magistrate judge, who

recommended dismissing the claim because the FTCA did not waive sovereign

immunity for claims arising from the seizure of property by a law enforcement

officer. The district court agreed with the magistrate judge’s analysis and

dismissed the claim. The court added that while sovereign immunity could be

waived for law enforcement property seizures under certain circumstances, those

circumstances were not implicated here. Shigemura now appeals the dismissal.

The district court has denied Shigemura leave to appeal in forma pauperis (IFP).

                                  II. Analysis

      Shigemura argues that the district court erred in dismissing his FTCA claim

and in denying him leave to amend his complaint. We review de novo a district

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court’s dismissal of a claim for lack of subject matter jurisdiction. Merrill Lynch

Bus. Fin. Servs. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). And we review

a district court’s denial of leave to amend under Rule 15(a) for abuse of

discretion. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).

      The FTCA authorizes claims against the United States “for injury or loss of

property . . . caused by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office or employment.”

28 U.S.C. § 1346(b)(1). Yet such claims are normally not authorized for the

“detention of any . . . property by any . . . law enforcement officer.” 28 U.S.C.

§ 2680(c). The statute makes an exception where

      (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

      (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.

Id. (emphasis added).

      Shigemura claims that the FBI lost his property after the Oklahoma

Highway Patrol turned it over to the FBI. An FBI agent qualifies as a “law

enforcement officer” under § 2680(c). See Ali v. Fed. Bureau of Prisons, 552

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U.S. 214, 228 (2008) (holding that § 2680(c) reaches all law enforcement

officers). Accordingly, the government’s sovereign immunity is not waived

unless Shigemura’s claim satisfies all four conditions outlined in § 2680(c).

       The district court reasoned that the first condition had not been satisfied

because the property was not seized for the “purpose of forfeiture.” It followed

the reasoning of Foster v. United States, 522 F.3d 1071 (9th Cir. 2008), where the

court held that a seizure of property pursuant to a search warrant had not been

done solely for the purpose of forfeiture. Id. at 1075–76. Rather, it had been

seized for purposes of criminal investigation. Even if federal agents had the dual

purpose of seizing for investigation and for forfeiture, the seizure would not

satisfy the first condition. Id. at 1079.

      In reaching this conclusion, the Ninth Circuit relied on the policy rationale

articulated in Kosak v. United States, 465 U.S. 848, 856 (1984), that the FTCA’s

waiver of sovereign immunity was not designed to impair “law enforcement

officers’ effectiveness in carrying out the important purposes underlying the

seizure and redirect their attention from the possibility of danger in executing the

search warrant to the possibility of civil damages.” Foster, 522 F.3d at 1078. We

find Foster to be persuasive. Because Shigemura’s property was seized pursuant

to a lawful arrest, and not solely for purposes of forfeiture, there is no waiver of

sovereign immunity under the FTCA and thus his claim cannot proceed.




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Accordingly, the district court was correct to dismiss Shigemura’s claim for lack

of subject matter jurisdiction.

      Furthermore, the district court did not abuse its discretion in denying

Shigemura leave to amend his complaint. No amendment could alter the

underlying fact that Shigemura’s property was seized pursuant to a lawful arrest.

                                  III. Conclusion

      Having concluded the district court was correct to dismiss Shigemura’s

claim, we AFFIRM the district court’s judgment.

      We also agree with the district court that the appeal was not taken in good

faith, and thus DENY Shigemura’s request to proceed on appeal IFP. The balance

of the court filing fee is now due for payment.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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