       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               RUDOLPH RHABURN,
                 Plaintiff-Appellant,

                           v.
                  UNITED STATES,
                  Defendant-Appellee.
              __________________________

                      2010-5017
              __________________________

    Appeal from the United States Court of Federal Claims
in Case No. 09-CV-008, Judge Margaret M. Sweeney.
              ___________________________

                 Decided: July 30, 2010
              ___________________________

   RUDOLPH RHABURN, of Los Angeles, California, pro se.

    JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were TONY WEST, Assistant Attorney Gen-
eral, JEANNE E. DAVIDSON, Director, and MARK A. MELNICK,
Assistant Director.
                __________________________
RHABURN   v. US                                             2


Before RADER, Chief Judge, NEWMAN, AND MOORE, Circuit
                       Judges.
PER CURIAM.

    Mr. Rudolph Rhaburn appeals from the dismissal, by
the United States Court of Federal Claims, of his suit for
unconstitutional “taking” of property without just compen-
sation, in violation of the Fifth Amendment. The property is
$32,000 of currency that was seized during a criminal
investigation. The court held that Mr. Rhaburn has not
stated a Fifth Amendment takings claim, or any other claim
within the jurisdiction of the Court of Federal Claims. 1 We
affirm the dismissal.

                        DISCUSSION

    Mr. Rhaburn’s complaint alleges the following facts: The
United States Drug Enforcement Administration seized
approximately $32,000 of currency from Mr. Rhaburn’s hotel
room during an undercover drug sting on May 26, 2004. By
letter to the DEA, he requested that the DEA return the
seized currency pursuant to 21 U.S.C. §853, governing
forfeiture. The DEA has not returned the currency and,
according to the complaint, has not instituted the forfeiture
proceedings that would be necessary for the DEA to retain
the currency by proving that it was used in or acquired
through a violation of law. Mr. Rhaburn alleges that the
DEA’s continued possession of the currency constitutes a
taking of his property for public use and without just com-
pensation.

     The Court of Federal Claims held that Mr. Rhaburn’s
complaint did not state a cognizable takings claim because
it recognized that the DEA took his property as part of a

    1   Rhaburn v. United States, 88 Fed. Cl. 310 (2009).
3                                               RHABURN   v. US


criminal investigation rather than through an exercise of
the government’s power of eminent domain. Mr. Rhaburn
cites Shelden v. United States, 7 F.3d 1022
(Fed. Cir. 1993), for the principle that an innocent third-
party property owner may pursue a takings claim to recover
just compensation for property subject to seizure and crimi-
nal forfeiture. The Court of Federal Claims rejected this
argument because Mr. Rhaburn did not assert that he is an
innocent third-party property owner.

     The government states that Shelden was implicitly
overruled by the Supreme Court in Bennis v. Michigan, 516
U.S. 442 (1996). In Bennis an innocent third-party property
owner pursued a Fifth Amendment takings claim to recover
her interest in a car which had been seized and was subject
to criminal forfeiture. Id. at 452. The Court ruled that no
taking had occurred, relying on the nature of the govern-
ment power exercised to take the property, i.e., the police
power. Id. at 452-53. The Court rejected any exception
based on the innocence of the owner of the car. Id. In
AmeriSource         Corp.       v.       United         States,
525 F. 3d 1149, 1154 (Fed. Cir. 2008), this court interpreted
Bennis as holding that “so long as the government’s exercise
of authority was pursuant to some power other than emi-
nent domain, then the plaintiff has failed to state a claim for
compensation under the Fifth Amendment.” Thus this court
held that the innocence of the property owner is not a factor
in determining whether there is a cognizable takings claim.
 Id. at 1154. Mr. Rhaburn does not allege that the govern-
ment seized the $32,000 currency in an exercise of the
power of eminent domain.

    As described in the complaint, the government seized
the currency during a drug investigation. Such seizures are
an exercise of police power. See AmeriSource Corp., 525 F.
3d at 1153 (“[P]olice power encompasses the government’s
RHABURN   v. US                                             4


ability to seize and retain property to be used as evidence in
a criminal prosecution.”); Acadia Tech., Inc. v. United
States, 458 F.3d 1327, 1331 (Fed. Cir. 2006); United States
v. Premises Known as 608 Taylor Ave., Apartment 302,
Pittsburgh, Pa., 584 F.2d 1297 (3d Cir. 1978). The seizure of
property pursuant to police power is “an exercise that has
not been regarded as a taking for public use for which
compensation must be paid.” AmeriSource, 525 F. 3d at
1152-53. We affirm that the DEA’s seizure of this currency
from Mr. Rhaburn’s hotel room does not support a takings
claim under the Fifth Amendment.

    The government did not dispute that it has retained the
currency notwithstanding Mr. Rhaburn’s request pursuant
to 21 U.S.C. §853. The Court of Federal Claims recognized
that the allegations as pled may have remedy elsewhere, for
“individuals whose property has been seized by the govern-
ment may pursue a due process remedy pursuant to Federal
Rule of Criminal Procedure 41(g).” Rhaburn, 88 Fed. Cl. at
314. The court held, and we agree, that a claim under Rule
41(g) is not within the jurisdiction of the Court of Federal
Claims. See 28 U.S.C. §1356 (district courts have original
jurisdiction over “any seizure”). The dismissal by the Court
of Federal Claims has no preclusive effect on any such
action in the district court.

    Mr. Rhaburn also states that the Court of Federal
Claims violated his due process rights by dismissing his
case without an oral hearing. The government states that
the court permitted Mr. Rhaburn to respond in writing,
which he did. In this case, where the facts are undisputed,
the law is clear, and Mr. Rhaburn’s views were presented
and considered, we agree that no violation of due process
occurred.
5                                            RHABURN   v. US


     We have considered all of Mr. Rhaburn’s arguments,
and discern no cognizable claim within the jurisdiction of
the Court of Federal Claims. The dismissal of the complaint
is affirmed.

    No costs.

                      AFFIRMED
