     Case: 12-60914      Document: 00512526477         Page: 1    Date Filed: 02/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 12-60914                         February 7, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
DEMETRIUS S. RANKIN

                                                 Plaintiff-Appellant
v.

UNITED STATES OF AMERICA; JOHN ARTHUR MEYNARDIE, Assistant
United States Attorney; JASON SCOTT GILBERT, Assistant United States
Attorney; JOHN GAFFNEY, Federal Bureau of Investigation; JAMES D.
MASSEY, Federal Bureau of Investigation; JOSEPH W. NICHOLSON,
Federal Bureau of Investigation; TOWANNA R. JOHNSON, Federal Bureau
of Investigation; JEROME LORAINE

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:10-CV-278


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Demetrius S. Rankin filed suit under the Federal Tort Claims Act and
Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971) against the United
States and multiple individuals.             The district court granted summary


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-60914    Document: 00512526477      Page: 2   Date Filed: 02/07/2014



                                 No. 12-60914
judgment in favor of the defendants, finding that the FTCA claims were barred
by sovereign immunity and that the Bivens claims were time-barred. We
AFFIRM the dismissal, VACATE the final order of dismissal, and REMAND
to the district court for entry of an order of dismissal without prejudice.
                          PROCEDURAL HISTORY
      On September 19, 2006, Demetrius S. Rankin pled guilty to one count of
possession of a controlled substance and to one count alleging criminal
forfeiture of property. United States v. Rankin, 480 F. App’x 750, 751 (5th Cir.
2010). The government had seized over $20,000 in cash, vehicles, and home
electronics after his arrest. The plea agreement provided that the property to
be forfeited under the criminal forfeiture would be negotiated by the parties
prior to sentencing and, if the parties could not agree, the issue would be
submitted to the court for resolution.           Despite the agreement, the
administrative forfeiture proceeding went forward and Rankin made no claim
in that proceeding, or in conjunction with his April 2007 sentencing.          In
October 2008, the government filed a motion to dismiss the criminal forfeiture
from the indictment because it had already been forfeited administratively.
The motion was granted.
      In 2010, Rankin obtained leave to file an out-of-time appeal of his
conviction. Rankin argued that the Government breached the plea agreement
by failing to seek a hearing on the forfeiture. This court rejected his argument
on plain error review, concluding that Rankin failed to show that he had any
basis to avoid forfeiture of the property. Rankin, 480 F. App’x at 752. Rankin
then filed this suit against the United States and multiple individuals alleging
that federal agents illegally seized his property, negligently failed to seek a
hearing on the property to be forfeited, submitted false affidavits regarding the
administrative forfeiture, and breached the plea agreement by allowing the


                                        2
     Case: 12-60914   Document: 00512526477     Page: 3   Date Filed: 02/07/2014



                                 No. 12-60914
administrative forfeiture and failing to advise the court of Rankin’s cooperation
at sentencing.
      The Government filed a certification that all the individual defendants
were acting at all relevant times within the scope of their employment with the
federal government, meaning that Rankin’s suit under the FTCA was against
the United States rather than the individual defendants. The government
moved for summary judgment. Rankin responded and filed a separate motion
to set aside the FTCA certification.
      The case was assigned to a magistrate judge who recommended denying
Rankin’s motion to set aside the certification and granting the government’s
motion for summary judgment.        Rankin filed objections to the magistrate
judge’s report.   The district court rejected the objections and adopted the
magistrate judge’s report and recommendation, denying Rankin’s motion to set
aside certification and granting the government’s motion for summary
judgment.
                          STANDARD OF REVIEW
      This court reviews dismissal for lack of subject matter jurisdiction de
novo. Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010). A grant of
summary judgment is also reviewed de novo, and is appropriate if there are no
genuine issues of material fact and the movant is entitled to judgment as a
matter of law. Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233 (5th Cir. 2009).
                                 DISCUSSION
1.    Denial of the Motion to Set Aside Certification.
      Under the FTCA, a suit against the United States is the exclusive
remedy for damages for injury or loss of property “resulting from the negligent
or wrongful conduct of any employee of the Government while acting within
the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). In this case the
government certified that all the defendants were acting in the scope of their
                                       3
    Case: 12-60914    Document: 00512526477     Page: 4   Date Filed: 02/07/2014



                                 No. 12-60914
employment. Such certification is conclusive for the purposes of removal, 28
U.S.C. § 2679(d)(1), but not for the purposes of substituting the United States
as defendant. Garcia v. United States, 62 F3d 126, 127 (5th Cir. 1995) (en
banc). “[W]hether a particular federal employee was or was not acting within
the scope of his employment is controlled by the law of the state in which the
negligent or wrongful conduct occurred.” Id. The plaintiff bears the burden of
proof to show that the employee’s conduct was not within the scope of
employment. Williams v. United States, 71 F.3d 502, 506 (5th Cir. 1995).
      All of the relevant actions took place in Mississippi, and under
Mississippi law courts consider whether the actions were done “in the course
of and as a means to accomplishment of the purposes of the employment and
therefore in furtherance of the master’s business.” Odier v. Sumrall, 353 So.
2d 1370, 1372 (Miss. 1978); Paramenter v. J & B Enterprises, Inc., 99 So. 3d
207, 216 (Miss. App.), cert. denied, 98 So. 3d 1073 (2012). “That an employee’s
acts are unauthorized does not necessarily place them outside the scope of
employment if they are of the same general nature as the conduct authorized
or incidental to that conduct.” Adams v. Cinemark USA, Inc., 831 So. 2d 1156,
1159 (Miss. 2002).
      Rankin argues that the government’s certification should be set aside
because the agents acted in excess of their authority by seizing his property
without probable cause, turning it over to federal authorities without a court
order, and causing his property to be administratively forfeited. Acting in
excess of authority, however, is not equivalent to acting outside the scope of
employment. Rankin was arrested for a drug offense, and his property was
seized and administratively forfeited.     By statute, the Government may
administratively forfeit conveyances used to transport or facilitate transport,
sale, receipt, possession, or concealment of, inter alia, controlled substances,
as well as money or other things of value furnished in exchange for a controlled
                                       4
     Case: 12-60914   Document: 00512526477      Page: 5   Date Filed: 02/07/2014



                                 No. 12-60914
substance, proceeds traceable to such an exchange and money used to facilitate
a drug violation. 21 U.S.C. § 881(a)(1), (6). On the basis of that statute, the
federal agents involved in the seizure and forfeiture of Rankin’s property were
acting in furtherance of the business of the United States, in other words,
within the scope of their employment.           The motion to set aside the
government’s certification was properly denied.
2.    FTCA Claims.
      A.    Wrongful Seizure and Forfeiture.
      The United States is immune from suit as a sovereign absent a waiver.
Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001). The FTCA
provides a waiver of sovereign immunity for tort claims against the United
States, 28 U.S.C. § 2674, but the waiver does not apply to any claim regarding
the “detention of goods or merchandise by any officer of customs or excise or
any other law-enforcement officer.” The waiver does apply, however, if four
conditions are met: (1) the property was seized for the purpose of forfeiture
under any provision of federal law allowing forfeiture other than as a sentence
imposed for conviction of a crime; (2) the property was not forfeited; (3) the
interest of the claimant was not remitted or mitigated; and (4) the claimant
was not convicted of a crime for which his interest in the property was subject
to forfeiture under federal criminal laws.      28 U.S.C. § 2680(c) (emphasis
added).
      Rankin was convicted of a drug charge under 21 U.S.C. § 841, which
subjected his property to criminal forfeiture under 21 U.S.C. § 853. Although
the property was administratively forfeited, it was subject to federal criminal
forfeiture laws, therefore Rankin cannot meet the fourth condition of § 2680(c).
Accordingly, the FTCA claims are jurisdictionally barred by sovereign
immunity.


                                       5
     Case: 12-60914   Document: 00512526477     Page: 6    Date Filed: 02/07/2014



                                 No. 12-60914
      B.    Breach of Plea Agreement and Misrepresentations.
      Rankin contends that the Assistant United States Attorneys named in
this suit had a duty to seek only a criminal forfeiture and breached it by
administratively forfeiting the property. To the extent that these claims are
based on the plea agreement, they are breach of contract claims that do not fall
within the FTCA waiver for tort claims. See Davis v. United States, 691 F.2d
53, 56 (5th Cir. 1991) (holding that claims founded upon an alleged failure to
perform contractual obligations are not tort claims that support subject-matter
jurisdiction under the FTCA).
      Rankin asserts that his claim is for negligent failure to prevent the
conversion of his property because the government failed to pursue criminal
rather than administrative forfeiture. This claim, in essence, is based upon
the same acts as the wrongful seizure claims mentioned above, and is likewise
barred by sovereign immunity. See 28 U.S.C. § 2680(c).
      C.    Dismissal with Prejudice.
      Rankin contends that it was error to dismiss his FTCA claims with
prejudice because a dismissal for lack of jurisdiction is not a determination on
the merits. Rankin is correct. See Davis v. United States, 961 F.2d 53, 57 (5th
Cir. 1991). Because the FTCA claims will be dismissed for lack of subject
matter jurisdiction, we will vacate the order of the district court and remand
for an entry of an order of dismissal without prejudice.
3.    Bivens Claims
      A.    Claims Regarding Seizure.
      There is no federal statute of limitations for a Bivens action, so federal
courts apply the forum state’s limitations period for personal injury claims.
Spotts, 613 F.3d at 573. In Mississippi, that period is three years. Miss. Code.
Ann. § 15-1-49; Edmonds v. Oktibbeha Cty., Miss., 675 F.3d 911, 916 (5th Cir.
2012). Federal law governs when a claim accrues, beginning when a “plaintiff
                                        6
    Case: 12-60914      Document: 00512526477   Page: 7   Date Filed: 02/07/2014



                                 No. 12-60914
knows or has reason to know of the injury which is the basis of the action.”
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
      Rankin claims his constitutional rights were violated by the agents who
allegedly exceeded the scope of a search warrant when they seized his property
on June 1, 2006. Rankin’s counsel enrolled on June 12, 2006, and either
received or sent copies of the warrant and seizure notification on June 15, 2006.
Rankin was also sent notices both at his residence and the Harrison County
Jail of the seizure and administrative forfeiture proceedings via certified mail
in July 2006. Rankin does not contest the assertion that he knew his property
had been seized as early as June 2006, therefore he had until June 2009 to file
his Bivens action. Rankin’s complaint was signed and dated on October 28,
2009. On its face, the complaint is untimely.
      Rankin contends that the complaint should relate back to April 21, 2008,
when he filed a Rule 41(e) motion for return of his property.        Rule 41(g)
provides that “[a] person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for the property’s return.”
Fed. R. Crim. P. 41(g). In Pena v. United States, 157 F.3d 984 (5th Cir. 1998)
the plaintiff filed a Rule 41 motion for the return of property seized from his
home. The government responded that the property had been destroyed.
Because the plaintiff was only then made aware that his property had been
destroyed, the court found that the plaintiff could have amended his motion to
state a Bivens claim.
      Pena is distinguishable. While the plaintiff in Pena could not have
known to seek monetary damages until the government disclosed the
destruction of his property, Rankin knew of the seizure, and the forfeiture
proceedings nearly two years before he filed his Rule 41(e) motion. Pena does
not support Rankin’s argument for relating his complaint back to the filing of
his Rule 41 motion.
                                       7
    Case: 12-60914      Document: 00512526477      Page: 8   Date Filed: 02/07/2014



                                    No. 12-60914
      Rankin next argues that the statute of limitations should be equitably
tolled because he and his counsel were misled by the government into believing
that some of his property would be returned and that the government would
forego any administrative forfeiture in return for his plea. While the statute
of limitations for a Bivens action may be equitably tolled, equity does not favor
Rankin. He knew of the facts underlying the alleged Fourth Amendment
violations in June 2006, and the government sent him notices of the
administrative forfeiture proceedings in July 2006. He does not explain how
the government’s actions prevented him from bringing a timely claim.
      B.       Forfeiture Claims.
      Rankin seeks relief under Bivens for the purportedly unconstitutional
forfeiture of his property. Since Bivens, the Supreme Court has repeatedly
rejected extending Bivens remedies to other constitutional claims. Wilkie v.
Robbins, 551 U.S. 537, 549 (2007). To determine whether a Bivens remedy
should be recognized, courts first look to whether “any alternative existing
process for protecting the interest amounts to a convincing reason” to refrain
from creating a new remedy. Id. Then, where no alternative exists, a court
must still determine whether a remedy is appropriate paying heed to “any
special factors counseling hesitation before authorizing a new kind of federal
action.” Id.
      Here, the Civil Asset Forfeiture Reform Act (CAFRA) provides a
comprehensive statutory scheme for challenging a civil forfeiture. CAFRA
requires the government to send a written notice to interested parties 60 days
after seizure of property, 18 U.S.C. § 983(a)(1)(A)(I), and any interested person
may make a claim on the property. Id. § 983(a)(2)(A). If a claim is filed, the
Government then has 90 days to seek civil forfeiture in a federal district court,
obtain a criminal forfeiture indictment, or return the property.              Id. §
983(a)(3)(A), (B). If the forfeiture proceedings move to court, counsel may be
                                         8
     Case: 12-60914   Document: 00512526477      Page: 9   Date Filed: 02/07/2014



                                 No. 12-60914
appointed, and the Government bears the burden of proving that the property
is subject to forfeiture.   Id. § 983(b), (c).    Because CAFRA provides a
comprehensive scheme for protecting property interests, no Bivens claim is
available.   See Bush v. Lucas, 462 U.S. 367, 385-89 (1983); Schweiker v.
Chilicky, 487 U.S. 412, 424-27 (1988).


4.    Spears Hearing and Leave to Amend.
      Rankin’s final argument is that it was error to fail to conduct a Spears
hearing and to prohibit amending his complaint. In Spears v. McCotter, 766
F.2d 179, 180 (5th Cir. 1985), abrogated on other grounds by Neitzke v.
Williams, 490 U.S. 319, 324 n.3 (1989), this court authorized district courts to
hold an evidentiary hearing in civil rights cases by prisoners to “dig beneath”
conclusory allegations and ascertain the scenario that the prisoner alleged
occurred and the legal basis for the claims. Here, the factual and legal bases
for Rankin’s claims were sufficiently laid out in his complaint and amended
complaint. The complaint was not dismissed as frivolous. No Spears hearing
was necessary.
      Similarly, the district court did not abuse its discretion when it denied
Rankin leave to amend his complaint a second time.            Although a court
ordinarily should not dismiss a pro se complaint without giving the petitioner
an opportunity to amend, leave to amend is not required if he has pleaded his
best case. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). Though
Rankin lists additional facts he would have included in a second amended
complaint, many of the assertions were made in his amended complaint, and
he does not explain how any of the new facts would have affected the
disposition of his claims. Amendment is not required if it would be futile.
Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th Cir.
1991).
                                         9
     Case: 12-60914   Document: 00512526477    Page: 10   Date Filed: 02/07/2014



                                No. 12-60914
5.     Conclusion.
       Accordingly, we AFFIRM the dismissal of this action, but we VACATE
the final order of dismissal and REMAND to the district court for entry of an
order of dismissal without prejudice.




                                        10
