                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
ANTHONY LEWIS,                            )
                                          )
                  Plaintiff,              )
                                          )
      v.                                  )                  Civil Action No. 09-0264 (RBW)
                                          )
DRUG ENFORCEMENT ADMINISTRATION, )
                                          )
                  Defendant.              )
_________________________________________ )


                                 MEMORANDUM OPINION

       The plaintiff brings this action against the Drug Enforcement Administration (“DEA”)

seeking judicial review under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 702

(2006), regarding the seizure of two vehicles, along with their contents, and the administrative

forfeiture of the vehicles by the DEA.1 This matter is before the Court on the defendant’s motion

to dismiss and the plaintiff’s motion for injunctive relief. For the reasons discussed below, the

defendant’s motion will be granted and the plaintiff’s motion will be denied.

                                      I. BACKGROUND

       On August 17, 1993, the plaintiff was arrested at his residence in Tampa, Florida, at

which time two vehicles and the contents thereof were seized by DEA Special Agents Tom

Feeney and Dale Van Dorple, two Tampa Police Department officers, and a Hillsborough



       1
                Under the APA, “[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.” 5 U.S.C. § 702 (2006).

                                                1
County Deputy Sheriff. Complaint (“Compl.”) ¶¶ 3-4. The vehicles were described as a 1969

Cadillac DeVille convertible (VIN E9259095) (“DeVille”) and a 1987 Chevrolet Blazer S-10

(VIN 1G8CS18R2G8116399) (“Blazer”). See id. ¶¶ 3-5; Memorandum of Points and

Authorities in Support of Defendant’s Motion to Dismiss (“Def.’s Mem.”) at 2, Declaration of

Terrence J. King (“King Decl.”) ¶¶ 4(a), 5(a). The personal property inside the vehicles

allegedly included jewelry, clothing, and tools. See Compl., Ex. A (Itemized List).

          According to the plaintiff, he was provided neither a warrant authorizing these seizures,

nor an inventory list of the vehicles’ contents. Compl. ¶¶ 5-6. The plaintiff contends that the

“vehicles were never used to facilitate any illegal narcotics activities, nor . . . [were they] derived

from proceeds of illegal narcotics dealing.” Id., Exhibit (“Ex.”) B (Affidavit of Anthony Lewis)

(“Pl.’s Aff.”) ¶ 5. The plaintiff has “remained incarcerated [by] the federal Government [since]

August 17, 1993,” and allegedly he never “receive[d] notice of the seizure” of his property.

Compl. ¶ 8. “The [p]laintiff was later convicted and sentenced in the [United States] District

Court [for the] Middle District of Florida, Tampa Division,” id. ¶ 17, and is serving a term of life

imprisonment, see United States v. Lewis, No. 8:93-CR-249-RAL-1 (M.D. Fla. filed Sept. 16,

1993).2




          2
                Remote access to documents filed in criminal cases in the United States District
Court for the Middle District of Florida prior to November 1, 2004, is not available. With one
exception [#228], docket entries in the plaintiff’s criminal case prior to July 23, 1997, do not
appear on the court’s electronic docket. A docket entry dated August 12, 1993 [#502] notes that
the first 278 docket entries, including the criminal complaint against the plaintiff [#1], minutes of
the sentencing [#13], and the judgment [#14], appear on the original paper docket sheet, but does
not indicate the dates on which these documents were filed.

                                                   2
                            A. Administrative Forfeiture Proceedings

                                          1. The DeVille

       DEA employees in its Tampa, Florida office “prepared and submitted a forfeiture report,”

which either “[a]n attorney or paralegal reviewed . . . to determine if the DEA field office

provided adequate information to support administrative forfeiture proceedings against the

property.” Def.’s Mem., King Decl. ¶ 4(a). This process “included a legal review of the

evidence that existed to seize the . . . DeVille.” Id. Based on this review, “the DEA accepted

[the] case for administrative forfeiture.” Id.

       Pursuant to 19 U.S.C. § 1607(a) (2006), the DEA sent two written notices of the

DeVille’s seizure by certified mail, along with domestic return receipts, to the plaintiff at his

Tampa, Florida residence. Def.’s Mem., King Decl. ¶ 4(b)-4(c); see id., Exs. 1 and 3 (Notices of

Seizure dated October 8, 1993).3 Someone signed each return receipt on October 18, 1993. Id.,


       3
                The defendant represents that the plaintiff’s property was seized and forfeited in
accordance with the administrative forfeiture procedures set forth in 19 U.S.C. § 1607 (2006),
rather than the provisions of the Civil Asset Seizure Reform Act of 2000, see 18 U.S.C. § 983
(2006), which applies to forfeiture proceedings initiated after August 23, 2000, Def.’s Mem. at 1
n.1.

        Generally, all vehicles “which are used, or are intended for use, to transport, or in any
manner to facilitate the transportation, sale, receipt, possession, or concealment of” controlled
substances or raw materials intended for illegal drug trade are subject to forfeiture. 21 U.S.C. §
881(a) (2006). Under the earlier forfeiture statute, which governs the forfeiture in this case, if
the value of a seized vehicle does not exceed $500,000, the following provision applies:

               [T]he appropriate . . . officer shall cause a notice of the seizure of
               such [vehicle] and the intention to forfeit and sell or otherwise
               dispose of the same according to law to be published for at least three
               successive weeks in such manner as the Secretary of the Treasury
               may direct. Written notice of seizure together with information on
               the applicable procedures shall be sent to each party who appears to
                                                                                         (continued...)

                                                  3
Exs. 2 and 4 (domestic return receipts for certified mail). In addition, the DEA sent a notice of

the seizure to the plaintiff at the Pinellas County Jail in Clearwater, Florida. Id. ¶ 4(d); see id.,

Ex. 5 (Notice of Seizure dated October 8, 1993). This third notice was returned to the DEA by

the United States Post Office, with the envelope “stamped ‘RETURNED TO SENDER’ and

marked ‘MOVED. LEFT NO ADDRESS.’” Id. ¶ 4(d); see id., Ex. 6.

       The DEA provided notice of “the seizure of the property . . . in USA TODAY, a

newspaper of general circulation in the Middle District of Florida and the District of Columbia.”

Def.’s Mem., King Decl. ¶ 4(e). The notice was “published once each week for three successive

weeks: October 20 and 27, and November 3, 1993.” Id. ¶ 4(e); see id., Ex. 7 (Legal Notices).

Both “[t]he published and mailed notices explained the option of filing a claim and cost bond, or

an affidavit of indigency in lieu of the cost bond, with the DEA Forfeiture Counsel in order to

contest the forfeiture action in United States District Court.” Id. ¶ 4(e). The DEA received

neither a claim nor a cost bond by the November 9, 1993 deadline, id., and on November 26,

1993, “the DEA forfeited the . . . DeVille . . . to the United States” pursuant to 19 U.S.C. § 1609

[(2006)]. Id. ¶ 4(f); see id., Ex. 8 (Declaration of Forfeiture dated November 26, 1993).

                                            2. The Blazer

       As was the case with the DeVille, DEA employees in its Tampa office “prepared and

submitted a forfeiture report,” and upon its review, which “included a legal review of the

evidence that existed to seize the . . . Blazer,” the case was “accepted . . . for administrative


       3
        (...continued)
                have an interest in the seized [vehicle].

19 U.S.C. § 1607(a) (2006). DEA Special Agents “are authorized and designated to seize such
property as may be subject to seizure.” 21 C.F.R. § 1316.72.

                                                   4
forfeiture.” Def.’s Mem., King Decl. ¶ 5(a). On November 1, 1993, the DEA sent by certified

mail, along with return receipts, three notices of seizure to the plaintiff – one to the plaintiff’s

Tampa, Florida residence, one to the plaintiff at the Pinellas County Jail, and one to the

plaintiff’s attorney. Id. ¶¶ 5(c)-(f); see id., Exs. 19, 21 and 23 (Notices of Seizure dated

November 1, 1993). The DEA also mailed a fourth notice to Henry L. Lewis at the same Tampa,

Florida address as the plaintiff’s residence. Id. ¶ 5(f); see id., Ex. 25 (Notice of Seizure dated

November 1, 1993). With the exception of the notice mailed to the Pinellas County Jail, which

the United States Postal Service returned, id., Ex. 22, an individual signed for each of the other

three notices, id., Exs. 20, 24, and 26 (domestic return receipts for certified mail).

        The DEA “published in USA TODAY, a newspaper of general circulation in the Middle

District of Florida and the District of Columbia,” a notice of the seizure “once each week for

three successive weeks: November 10, 17, and 24, 1993.” Def.’s Mem., King Decl. ¶ 5(g) & Ex.

27 (Legal Notices). Once again the DEA did not receive a claim or cost bond by the November

30, 1993 deadline, and “the DEA forfeited the . . . Blazer . . . to the United States” on December

17, 1993. Id. ¶¶ 5(g)-(h) & Ex. 28 (Declaration of Forfeiture dated December 17, 1993).

                                   B. Criminal Action No. 93-249

        The plaintiff filed in his criminal case a Petition for Writ of Replevin “in an attempt to

obtain judicial review of the . . . DEA’s seizure and administrative forfeiture of his vehicles and

the contents of his vehicles.” Compl. ¶ 16; Def.’s Mem., King Decl., Ex. 9 (Petition for Writ of

Replevin, Lewis v. United States, No. 93-249-CR-T-21(B) (M.D. Fla. June 9, 1994)).4


        4
                The DeVille and the Blazer already had been forfeited, and the United States took
the position that “the only remaining issue for evidentiary hearing . . . would be limited to the
                                                                                       (continued...)

                                                   5
According to the plaintiff, his property was seized and forfeited without probable cause, proper

notice and hearing, and otherwise was taken in violation of law. See generally, Def.’s Mem.,

King Decl., Ex. 9. The presiding judge in the plaintiff’s criminal case held a hearing on January

30, 1997, and denied the petition on March 24, 1997.5 Compl. ¶ 20. That proceeding has been

summarized by another Judge of the Middle District of Florida as follows:

               Judge Nimmons held that Lewis failed to establish that any of the
               fourteen items of personal property at issue were ever contained
               within either [the DeVille or the Blazer] at the time those vehicles
               were seized on August 17, 1993, or that the items of personal
               property were ever seized from the vehicles by any Government
               agent. Judge Nimmons further held that the Government had
               established by a preponderance of the evidence that Detective Tim
               Lovett of the Hillsborough County Sheriff’s Office, Detective Rick
               Olewinski of the Tampa Police Department, and Special Agents Dale
               Van Dorple and Tom Feeney with the [DEA] did not remove or steal
               any of the fourteen items of personal property from either of the
               vehicles on August 17, 1993, or in the days following, in connection
               with the processing of the vehicles for administrative seizure by the
               [DEA].

See Def.’s Mem., King Decl., Ex. 17 (Order, Lewis v. United States, No. 95-580-CIV-T-24E

(M.D. Fla. July 15, 1997)) at 2 (internal citations omitted). According to the plaintiff, Judge

Nimmons “did not effect review of the . . . DEA’s seizure and administrative forfeiture” of the

vehicles. Compl. ¶ 20.


       4
        (...continued)
personal property contained within the vehicle[s].” Def.’s Mem., King Decl., Ex. 16 (Response
to Lewis’ Petition for Writ of Replevin and United States of America’s Request for an
Evidentiary Hearing, United States v. Lewis, No. 93-249-CR-T-21(B) (M.D. Fla. Sept. 13,
1996)) at 2.
       5
               The plaintiff alleges that he had filed two motions for return of property in his
criminal case, one on June 9, 1994 and another on July 7, 1994, Compl. ¶ 19, and that both
motions were denied, id. ¶ 20. It is not clear from the record whether the second motion was
also addressed at the January 30, 1997 hearing.

                                                 6
                                     C. Civil Action No. 95-580

       The plaintiff “filed a civil action against the . . . DEA and others . . . in the . . . Middle

District of Florida, Tampa Division, in Case Number 95-[580]-civ-T-24E, for the illegal seizure

and forfeiture” of the DeVille and the Blazer. Compl. ¶ 18; see Lewis v. United States, No. 8:95-

580-SCB (M.D. Fla. filed Apr. 14, 1995); see also Def.’s Mem., King Decl., Ex. 10 (Amended

Complaint, Lewis v. United States, No. 95-580-CIV-T-24E (M.D. Fla. May 30, 1995)). The

United States Court of Appeals for the Eleventh Circuit summarized these proceedings as

follows:

                       Lewis . . . filed this civil action seeking declaratory,
               injunctive, and monetary relief against Tom Feeney and Dale Van
               Dorple, agents of the [DEA], Jack Fernandez, the federal prosecutor
               in [his] criminal case, and the United States. Lewis’ amended
               complaint alleged that (1) Feeney and Van Dorple, in connection
               with their arrest of Lewis, seized and disposed of Lewis’ [DeVille
               and Blazer], and personal property therein, illegally and without a
               hearing, and (2) Fernandez failed to prevent Feeney and Van
               Dorple’s illegal actions by exercising his exclusive authority to begin
               forfeiture proceedings against Lewis. Lewis sought to hold Feeney,
               Van Dorple, and Fernandez liable under Bivens [v. Six Unknown
               Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
               (1971)], alleging that the seizure of his property without a warrant
               violated the Fourth Amendment, and the forfeiture of his property
               without notice or a hearing violated the Fifth Amendment. Lewis
               also claimed that Feeney, Van Dorple, and Fernandez were liable
               under the [Federal Tort Claims Act (“FTCA”)], based upon their
               violation of Florida law regarding the illegal conversion of property.
               Lewis sought to hold the United States liable under the FTCA
               pursuant to the theory of respondeat superior.

                                                * * *

                       On August 26, 1996, the district court granted the United
               States’ motion for summary judgment on Lewis’s FTCA claim,
               finding that the seizure of his property fit within the ambit of 28
               U.S.C. § 2680(c), and exemption from the FTCA’s general waiver of
               sovereign immunity in cases where property is seized pursuant to law

                                                   7
               enforcement purposes. In regard to Lewis’ Bivens claims against
               Van Dorple, Feeney, and Fernandez, the district court ruled as
               follows: (1) granted summary judgment for the defendants on Lewis’
               Fourth Amendment claim, finding that the confiscation of Lewis’
               property was supported by probable cause and occurred pursuant to
               a valid warrant; (2) granted summary judgment for the defendants on
               Lewis’ Fifth Amendment claim regarding the forfeiture of two of his
               automobiles, where proper notice had been issued; and (3) granted
               summary judgment for Fernandez, but denied summary judgment for
               Van Dorple and Feeney on Lewis’ Fifth Amendment claim regarding
               the forfeiture of his personal property within the automobiles, finding
               that material issues of fact remained disputed regarding [their]
               actions, but that Lewis had failed to establish a causal connection
               between the loss of his personal property and any actions of
               Fernandez.

Lewis v. Feeney, No. 98-2328, Slip Op. at 2-3, 4-5 (11th Cir. Aug. 31, 1999) (per curiam)

(emphasis added).

       Based on Judge Nimmons’ earlier denial of the plaintiff’s petition for writ of replevin,

Van Dorple and Feeney moved to dismiss the plaintiff’s remaining Fifth Amendment claim on

the ground that the claim was barred under the doctrine of collateral estoppel. See Def.’s Mem.,

King Decl., Ex. 17 (Order, Lewis v. United States, No. 95-580-CIV-T-24(E) (M.D. Fla. July 15,

1997)) at 1. The plaintiff did not file an opposition to their motion, see id., and the court granted

the motion, concluding that “[t]he issues raised by Plaintiff’s instant Fifth Amendment due

process claim relating to the alleged personal property contained in his two seized vehicles were

adjudicated in Case No. 93-249-Cr-T-21B, . . . [and the] Plaintiff is therefore barred from

relitigating those issues here,” id. at 2-3. The plaintiff did not appeal the ruling. Lewis v.

Feeney, No. 98-2328, Slip Op. at 5 (11th Cir. Aug. 31, 1999) (per curiam).




                                                  8
                            D. The Plaintiff’s Complaint In This Case

       The plaintiff summarizes the grounds for this action and the relief he demands as follows:

               This is a civil action pursuant to the Administrative Procedure Act
               (APA) against the [DEA] for illegally, unlawfully, arbitrarily,
               capriciously, maliciously, and as a result of fraud and fraudulent
               concealment, seiz[ing] and administratively forfeit[ing his] property
               . . . . The [p]laintiff seeks judicial review of the DEA’s
               administrative seizure and forfeiture of his property in equity as an
               independent action[, and he asks] the court to hold that the DEA’s
               seizure and forfeiture . . . was erroneous and unlawful, then set aside
               the agency’s action.

Compl. at 1. As a result of the DEA’s actions, the plaintiff asserts that he “has suffered the loss

of his property [and] loss of his property interest [in] violation of his Fourth Amendment right,”

and in “violation of his protected liberty interest” under the Fifth Amendment. Id. ¶ 29.6

       The plaintiff’s Fourth Amendment claim arises from the DEA’s seizure of the DeVille

and the Blazer and their contents, and the administrative forfeiture of the vehicles, on the ground

that the agency “lacked jurisdiction and authority” to conduct the seizure “without first obtaining

a transfer and/or takeover order from the State court which allegedly issued seizure warrants.”

Compl. ¶ 30(A). The plaintiff further asserts that the DEA “lacked probable cause to seize and

attempt forfeiture proceedings” due to the absence of “evidence or facts to support that the

plaintiff’s property was derived from, associated with, or used for any illegal activity, or failing

to show a nexus between the plaintiff’s property and illegal narcotics activity in a drug case.” Id.

¶ 30(B).7 He also contends that the DEA violated his Fifth Amendment right to due process


       6
               The plaintiff also alleges violations of federal statutory law and Florida law.
Compl. ¶ 29.
       7
               According to the plaintiff, the vehicles were used “for advertisement purposes and
                                                                                     (continued...)

                                                  9
because it “failed to provide notice to the plaintiff and an opportunity to contest the seizure and

forfeiture of his [vehicles].” Id. ¶ 30(C). Lastly, the plaintiff contends that the DEA “committed

fraud and fraudulent concealment” in effecting this “unlawful seizure and forfeiture.” Id. ¶

30(D).

         The plaintiff demands declaratory judgment and injunctive relief. Compl. ¶ 31.8 In

addition, he demands compensatory damages of $50,000.00 for the vehicles and their contents,

id. ¶ 31(C)(1), and punitive damages totalling $3,000,000.00 to redress the alleged violations of

his Fourth and Fifth Amendment rights, id. ¶ 31(C)(2), the “loss of the plaintiff’s business

interest” in and the sentimental value of the vehicles, id. ¶ 31(C)(3), and for the “emotional

distress, anxiety, discomfort, and vexation [he] has suffer[e]d in attempting to have his vehicles

and the contents of his vehicles returned to him,” id. ¶ 31(C)(4).

                                        II. DISCUSSION

                                A. Dismissal Under Rule 12(b)(6)9

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the

plaintiff properly has stated a claim upon which relief may be granted. See, e.g., Woodruff v.



         7
        (...continued)
other matters associated with [his] family’s business,” Compl., Ex. B (Pl.’s Aff.) ¶ 8, an auto
body repair shop, id. ¶ 7.
         8
               The plaintiff numbered two paragraphs of the complaint as paragraph 31, one
beginning on page 11 (requesting declaratory judgment), and another beginning on page 14
(requesting injunctive relief).
         9
                Ordinarily, if “matters outside the pleadings are presented to and not excluded by
the court” on a Rule 12(b)(6) motion, “the motion must be treated as one for summary judgment
under Rule 56.” FED. R. CIV. P. 12(d). The Court need not convert the defendants’ motion to
dismiss in this case, however, because the materials on which the Court relies either are referred
to in the complaint itself or are matters of which the Court may take judicial notice.

                                                 10
DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6)

motion, it need only provide “a short and plain statement of the claim showing that the pleader is

entitled to relief,” FED. R. CIV. P. 8(a)(2), in order to “give the defendant fair notice of what the

claim is and the grounds on which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citation omitted). “Although detailed factual allegations are not necessary to withstand a

Rule 12(b)(6) motion to dismiss, to provide the grounds of entitlement to relief, a plaintiff must

furnish more than labels and conclusions or a formulaic recitation of the elements of a cause of

action.” Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007)

(quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Or, as the Supreme

Court more recently stated, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The

complaint must be construed in the light most favorable to the plaintiff and “the court must

assume the truth of all well-pleaded allegations.” Warren v. Dist. of Columbia, 353 F.3d 36, 39

(D.C. Cir. 2004). Generally, on a Rule 12(b)(6) motion, the Court is limited to considering “only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which we may take judicial notice.” EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

        The Federal Rules of Civil Procedure provide that a party may assert an affirmative

defense by motion in its initial response to a complaint. FED. R. CIV. P. 12(b). Res judicata and

collateral estoppel are affirmative defenses. Blonder Tongue Labs., Inc. v. Univ. of Illinois

Found., 402 U.S. 313, 350 (1971); Stanton v. Dist. of Columbia Court of Appeals, 127 F.3d 72,


                                                  11
76 (D.C. Cir. 1997) (“Res judicata is an affirmative defense that may be lost if not pleaded in the

answer[.]”); Nat’l Treasury Emps. Union v. Internal Revenue Serv., 765 F.2d 1174, 1176 n.1

(D.C. Cir. 1985) (“Issue preclusion is an affirmative defense [which] may be expressly waived or

forfeited through failure to raise it at a proper time.” (internal citations omitted)). These

defenses may be raised by motion under Rule 12(b)(6) where they “can either be established

from the face of the complaint, matters fairly incorporated within it, and matters susceptible to

judicial notice.” Felter v. Salazar, 679 F. Supp. 2d 1, 4 (D.D.C. 2010) (internal quotation marks

and citation omitted); Sheppard v. Dist. of Columbia, __ F. Supp. 2d __, __, 2011 WL 710211, at

*4 n.3 (D.D.C. Feb. 22, 2011) (“Res judicata may be raised in a Rule 12(b)(6) motion to dismiss

for failure to state a claim when the defense appears on the face of the complaint and any

materials of which the court may take judicial notice.”). The court may take judicial notice of

public records from other court proceedings. See Covad Commc’ns. Co. v. Bell Atl. Corp., 407

F.3d 1220, 1222 (D.C. Cir. 2005).

                            B. Claim Preclusion and Issue Preclusion

       The defendant moves to dismiss the complaint in its entirety on the grounds that the

claims “against the DEA regarding the alleged improper seizure and forfeiture of [the plaintiff’s]

property . . . have already been litigated,” Def.’s Mem. at 11, and that the issues presented “have

already been decided by a court of competent jurisdiction,” id. at 13.

                                1. Res Judicata (Claim Preclusion)

       “Res judicata plays a central role in advancing the ‘purpose for which civil courts have

been established, the conclusive resolution of disputes within their jurisdictions.’” Apotex, Inc.

v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (quoting Montana v. United States, 440 U.S. 147,


                                                  12
153 (1979)). Res judicata (claim preclusion) bars a subsequent lawsuit “if there has been prior

litigation (1) involving the same claims or cause of action, (2) between the same parties or their

privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent

jurisdiction.” Porter v. Shah, 606 F.3d 809, 813-14 (D.C. Cir. 2010) (citations and internal

quotation marks omitted). Essentially, the doctrine “prevents a party from filing a new civil

action which is based on the same operative facts as underlay a previously-litigated civil action.”

Morton v. Locke, 387 F. App’x 1, 1 (D.C. Cir. 2010) (per curiam) (citations omitted). “Whether

two cases implicate the same cause of action turns on whether they share the same ‘nucleus of

facts.’” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (citing Page v. United States, 729 F.2d

818, 820 (D.C. Cir. 1984)). In determining whether two cases share a nucleus of facts, courts

consider “whether the facts are related in time, space, origin, or motivation, whether they form a

convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations

or business understanding or usage.” Apotex, 393 F.3d at 217 (citations and internal quotation

marks omitted).

       The defendant contends that the plaintiff’s “claims against the DEA regarding the alleged

improper seizure and forfeiture of his property must be dismissed under the doctrine of res

judicata because such claims have already been litigated against Defendant . . . before the

[United States] District Court for the Middle District of Florida.” Def.’s Mem. at 11. The

plaintiff counters that “the present civil action does not contain claims [or] defendants that were

contained in the previous civil action.” Plaintiff’s Arguments with Points and Authorities in

Support of Opposition to the Defendant’s Motion to Dismiss (“Pl.’s Opp’n”) at 13. Rather, he

contends, he brings this action “against the DEA, the agency,” while the “Fourth and Fifth


                                                 13
Amendment claims raised in the . . . previous civil action were against the United States, DEA

agents and the prosecuting attorney.” Id. Further, the plaintiff purports to raise for the first time

in this action new claims, specifically, the DEA’s “lack[] [of] jurisdiction and authority to seize

and forfeit his vehicles and property,” its alleged “fraud and fraudulent concealment in

establishing probable cause to seize and forfeit” the vehicles and their contents, and its “fail[ure]

to comply with the requirements of Title 19 U.S.C. §[§] 1602-1604 prior to the seizure and

forfeiture of the plaintiff’s vehicles.” Pl.’s Opp’n at 14.10 For these reasons, the plaintiff argues

that his claims are not barred under the doctrine of res judicata. Id. He is mistaken.

       The current civil action and the prior action in the Middle District of Florida involve the

same cause of action – the operative facts are those arising out of the August 17, 1993 seizure of

the DeVille, the Blazer, and the property contained in those vehicles, as well as the subsequent

administrative forfeiture of the vehicles and their contents by the DEA. Moreover, there can be

no doubt that the United States District Court for the Middle District of Florida, the same district

where the plaintiff was arrested and where the seizure and forfeiture occurred, is a court of

competent jurisdiction which decided the merits of the plaintiff’s prior challenges to the seizure

and forfeiture of his property.

       Although the plaintiff names as the defendant in this action a party not named in the prior

action, the DEA is in privity with the defendants sued in the prior action. “[F]or purposes of res

judicata, privity exists between officers of the same government,” Lindsey v. Dist. of Columbia,

609 F. Supp. 2d 71, 77 (D.D.C. 2009) (citing Sunshine Anthracite Coal v. Adkins, 310 U.S. 381,



       10
               The plaintiff numbered two pages as page 14. The Court’s citation is to the first
of those two pages.

                                                 14
402 (1940)), and the prior rulings in favor of the United States and DEA Special Agents Feeney

and Van Dorple are binding as to the DEA itself. See Sunshine Anthracite Coal, 310 U.S. at

402-03 (“[A] judgment in a suit between a party and a representative of the United States is res

judicata in relitigation of the same issue between that party and another officer of the

government.”); Mervin v. Fed. Trade Comm’n, 591 F.2d 821, 830 (D.C. Cir. 1978) (concluding

that the plaintiff was barred from pursuing the same reduction-in-force claim before the Federal

Trade Commission that he had pursued previously against the Civil Service Commission). The

defendants named in the two actions, then, are considered the same parties.

        The plaintiff cannot avoid the preclusive effect of the Florida district court’s rulings in

the prior action by presenting in this action new legal theories for relief. “[R]es judicata . . . bars

relitigation not only of matters determined in a previous litigation but also ones that [the

plaintiff] could have raised.” Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1252

(D.C. Cir. 1988); Tutt v. Doby, 459 F.2d 1195, 1197 (D.C. Cir. 1972) (“If the doctrine of res

judicata applies, both parties are concluded, not only as to things which were determined but as

to all matters which might have been determined as well.”); Middlebrooks v. Medstar Health,

Inc., No. 10-1519, 2010 WL 5373939, at *2 (D.D.C. Dec. 22, 2010) (finding no significance in

the fact that the plaintiff’s prior cases in the Superior Court of the District of Columbia asserted

claims under the District of Columbia Human Rights Act and the current case includes a claim

under 42 U.S.C. § 1981 because the plaintiff was “barred from litigating not only claims that

were actually litigated but also those that could have been litigated in the first action”). The fact

that the plaintiff did not present his additional legal theories in the prior suit is immaterial.

“Under the doctrine, the parties to a suit and their privies are bound by a final judgment and may


                                                   15
not relitigate any ground for relief which they already have had an opportunity to litigate even if

they chose not to exploit that opportunity whether the initial judgment was erroneous or not.”

Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (emphasis added).

        For all of the reasons set forth above, the Court concludes that the plaintiff’s claims in

this case are barred by the doctrine of res judicata.11

                              2. Collateral Estoppel (Issue Preclusion)

        “Along with the doctrine of claim preclusion or res judicata, issue preclusion aims to

avert needless relitigation and disturbance of repose, without inadvertently inducing extra

litigation or unfairly sacrificing a person’s day in court.” Otherson v. Dep’t of Justice, 711 F.2d

267, 273 (D.C. Cir. 1983). Under the doctrine of collateral estoppel (issue preclusion), “once a

court has decided an issue of fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of action involving a party to the first case.”

Allen v. McCurry, 449 U.S. 90, 94 (1980). In Yamaha Corp. of Am. v. United States, 961 F.2d

245, 254 (D.C. Cir. 1992), cert. denied, 506 U.S. 1078 (1993), the District of Columbia Circuit

sets forth the following standard for establishing the preclusive effect of a prior holding:

                First, the same issue now being raised must have been contested by
                the parties and submitted for judicial determination in the prior case.
                Second, the issue must have been actually and necessarily determined
                by a court of competent jurisdiction in that prior case. Third,
                preclusion in the second case must not work a basic unfairness to the
                party bound by the first determination. An example of such
                unfairness would be when the losing party clearly lacked any
                incentive to litigate the point in the first trial, but the stakes of the
                second trial are of a vastly greater magnitude.



        11
              The plaintiff’s FTCA claim, see Compl. ¶ 27 & Ex. L (Claim for Damage, Injury
or Death dated October 4, 2004), also is barred by the doctrine of res judicata.

                                                   16
Id. (internal citations and footnote omitted).

       The defendant argues that “the issues raised in Plaintiff’s Complaint have already been

decided by a court of competent jurisdiction and therefore this Court is barred from deciding

them under the doctrine of collateral estoppel.” Def.’s Mem. at 13. The plaintiff counters that

“the present civil action does not contain claims []or defendants that were contained in the

previous civil action filed in the Middle District of Florida,” Pl.’s Opp’n at 14, pointing to the

new defendant, the DEA, and his new legal theories offered as the basis for the relief he is

seeking, to support his argument that collateral estoppel does not bar this action. See id. at 14-

15. Again, the plaintiff is mistaken.

       The Florida district court described the issues presented by the plaintiff in the prior civil

action as follows:

               Regarding the seizures, Plaintiff makes three claims. First, he claims
               that his property was seized in violation of the Fourth Amendment,
               stating in support that he never saw a warrant for the seizure of the
               items. Second, Plaintiff claims that his property was seized without
               adequate due process, in contravention of the Fifth Amendment.
               Third, Plaintiff asserts a federal tort claim of deprivation of his
               property based upon a state law claim of conversion.

Def.’s Mem., King Decl., Ex. 15 (Order, Lewis v. United States, No. 95-580-CIV-T-24E (M.D.

Fla. Aug. 22, 1996)) at 6. The court then construed the claims “as under Bivens . . . and as

pursuant to the [FTCA].” Id. at 6-7.

       The Florida district court then determined that the United States was not liable under the

FTCA for any injury arising from the seizure of the plaintiff’s vehicles. Id. at 7. Because the

FTCA “exempts any claim based on the detention of goods by any federal law enforcement

officer, [and] extends to officers in other agencies performing their proper duties,” the court


                                                 17
deemed the plaintiff’s FTCA claim to be “without merit, and the United States [was] dismissed

as a Defendant in [that] action.” Id.

       In resolving the Bivens claims brought against DEA Special Agents Van Dorple and

Feeney, and their qualified immunity defense, the Florida district court found it “clear from the

record that a warrant to search Plaintiff’s premises was validly issued,” id. at 9, thus resolving

his Fourth Amendment claim based on the lack of probable cause or the absence of a warrant, id.

at 10. Further, that Florida district court found not only that the plaintiff “raise[d] no meritorious

due process claims regarding the forfeiture of his vehicles,” id. at 11, but also that his claims

against the agents with respect to the contents of the vehicles were barred under the doctrine of

collateral estoppel based on Judge Nimmons’ earlier determination, following an evidentiary

hearing, that the agents neither removed nor stole any of the items allegedly found in the

vehicles at the time of their seizure, Def.’s Mem., King Decl., Ex. 17 (Order, Lewis v. United

States, No. 95-580-CIV-T-24E (M.D. Fla. July 15, 1997)) at 2. In short, the Florida district court

determined that no violation of the plaintiff’s Fourth or Fifth Amendment rights occurred. The

plaintiff cannot avoid the consequences of the Florida district court’s rulings by raising new

legal theories in a subsequent lawsuit where, as here, he could have raised such theories in the

prior action. See Hall v. Clinton, 285 F.3d 74, 81 (D.C. Cir. 2002).

       A plaintiff can avoid the preclusive effect of an earlier judicial decision if he can

demonstrate that preclusion would “work a basic unfairness” on him, or that he “lacked any

incentive to litigate the [issues] in the [prior proceedings],” or that he was otherwise denied a full

and fair opportunity to litigate these issues previously. Yamaha, 961 F.2d at 254. However, the

plaintiff presents no such arguments, and given his persistence in seeking the return of his


                                                 18
property, both in the criminal proceedings and subsequent civil proceedings in the Middle

District of Florida, coupled with the rulings rendered in those proceedings, the Court finds that

invoking the preclusive impact of collateral estoppel in this case is not at odds with the

limitations articulated in Yamaha. The Court therefore concludes that the issues presented in this

civil action are barred by the doctrine of collateral estoppel.

                                        III. CONCLUSION

        The Court concludes that the doctrines of res judicata and collateral estoppel bar

relitigation of the claims and issues presented in this case due to the proceedings that were

conducted in the United States District Court for the Middle District of Florida.12 Accordingly,

the Court grants the defendants’ motion to dismiss and denies the plaintiff’s motion for

injunctive relief.13



                                                       REGGIE B. WALTON
                                                       United States District Judge
DATE: April 15, 2011




        12
              In light of these rulings, the Court will not address the defendants’ alternative
arguments for dismissal.
        13
               This Memorandum Opinion accompanies the Order issued on March 31, 2011,
and the Final Order issued contemporaneously, granting the defendant’s motion to dismiss and
denying the plaintiff’s motion for injunctive relief.


                                                 19
