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ORl%lNAL
In the United States Court of Federafg&cj<i%a§§§$

No. 16~821 C
Filed: February 14, 2017

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EPHRAIN JOSEPH,
Forfeiture To The United States);

18 U.S.C. § 983(d) (Innocent Owner

Plaintiff, pro se,
Defense);

v.
Act);

Rules of the United States Court of Federal
Clairns (“RCFC”) lZ(b)(l) (Subject
Matter Jurisdiction);

THE UNITED STATES,

Defendant.

RCFC 41(b) (Failure to Prosecute).

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Ephrain Joseph, pro Se, Plaintiff.

Mollie Lenore Finnan, United States Depart.rnent of .l ustice, Comrnercial Litigation Branch, Civil
Division, Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
I. RELEVANT FACTUAL BACKGROUN]).1

Ephrain Joseph sent a package containing $48,880 by the United States Postal Service, “for
the purpose cf purchasing a property.” Cornpl. 1[1{ l, 4. On lone 23, 2015, the United States Postal
lnspection Service (“USPIS”) seized Mr. Joseph’s package as illegal proceeds from the sale of
narcotics and property used to facilitate unlawful drug crimes. Compl. at 1. On December 11,
2015, the Government Eled a Cornplaint in the United States District Court for the Western District
of Texas, seeking forfeiture of the $48,880 under 18 U.S.C. § 981(9.)(1)(€)2 of the Civil Assets

 

l The relevant facts Were derived from the July 11, 2016 Complaint (“Colnpl.”).
2 The Civil Assets Forfeiture Refonn Act, in part, provides,

(a)(l) The following property is subject to forfeiture to the United States:

* * *

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18 U.S.C. § 981(a)(1)(C) (Property Subject To

21 U.S.C. § 881(a)(6) (Controlled Substances

RCFC 15(a) (Arnendrnent of Pleadings);

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Forfeiture Reform Act (“CAFRA”) and 21 U.S.C. § 881(a)(6)3 of the Controlled Substances Act
(r.cCSAM).4

II. PROCEDURAL HISTORY.

On luiy ll, 2016, l\/lr. Joseph (“Plaintiff’) filed a Complaint in the United States Court of
Federal Claims alleging that the Government improperly seized the $48,880, because Plaintiff Was
an “innocent owner,” under 18 U.S.C. § 983(d).5 Compl. 11 2. On that same day, Plaintiff filed a

 

(C) Any property, real or personal, Which constitutes or is derived from
proceeds traceable to . . . any offense constituting “specifled unlawful activity,”
fincluding the manufacture, importation, sale, or distribution of a controlled
Substance].

i8 U.S.C. § 981(a)(1)(C).
3 The Controlled Substances Act, in part, provides,

(a) . . . The following shall be subject to forfeiture to the United States and no
property right shall exist in them:

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(6) All moneys, negotiable instruments, securities, or other things of value
furnished or intended to be furnished by any person in exchange for a controlled
substance or listed chemical in violation of this subchapter, ali proceeds
traceable to such an exchange, and all moneys, negotiable instiuments, and
securities used or intended to be used to facilitate any violation of this
subchapter.

21 U.s.C. § 881(&)(6).

4 “[F]or the purposes of [a] motion to dismiss [the court] must take ail the factual allegations
in the complaint as true, [but] We are not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The July 11, 2016 Complaint
alleges that “the [f]ederal laws that govern [this] forfeiture action . . . are [] 19 U.S.C. §§ 1602-
1621.” Compl. at l. As a matter of law, however, the statutes in this case are provided by 18
U.S.C. 981(a)(1) and 21 U.S.C. § 881(a)(6). Compiaint at 1[2, United Sfafes v. $48,880.00, More
or Less, In U.S. Currency, No. 15-364 (W.D. TeX. Dec. 11, 2015) (“This is a civil forfeiture action
in rem brought against the Respondent Property . . . pursuant to 18 U.S.C. § 98l(a)(l) and 21
U.S.C. § 881(a)(6).”).

5 The Innocent Owner Defense states that, “[a]n innocent owner’s interest in property shall
not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving
that the claimant is an innocent owner by a preponderance of the evidence.” 18 U.S.C. § 983(d)(1).

Motion To Proceed fn Forma Pauperis. ECF No. 3. On August 3, 2016, the court granted
Plaintiff" s Motion To Proceed fn Forma Pauperis. ECF No. 5.

On September 9, 2016, the Government filed a l\/lotion To Dismiss for lack of subject
matter jurisdiction, pursuant to Rule of the United States Court of Federal Claims (“RCFC”)
lZ(b)(l) (“Gov’t Mot.”). Plaintiff’s Response Was due on October li, 2016. But, as of
December 2, 2016, Plaintiff did not file any response or objection On December 2, 2016, the
court issued an Order instructing Plaintiff to show cause Why this case should not be dismissed for
failure to prosecute, pursuant to RCFC 4l(b). ECF No. 7. That same day, Plaintiff filed a Motion
For Extension Of Time To File A Response. ECF No. 8. On December 6, 2016, the court granted
that motion. ECF No. 9.

On January 3, 2017, Plaintiff filed a Response to the December 2, 2016 Show Cause Order
(ECF No. 10), and a Response to the Governrnent’s September 9, 2016 Motion 'l`o Dismiss and
Motion F or Leave To Amend The Complaint (“Pl. Resp.”). On January 17, 201 7, the Government
filed a Reply (“Gov’t Reply”).

III. DISCUSSION.
A. Jurisdiction.

The United States Court of Federal Ciaims has jurisdiction under the Tucker Act,
28 U.S.C. § 1491, “to lender judgment upon any claim against the United States founded either
upon the Constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract With the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a
jurisdictional statute; it does not create any substantive right enforceable against the United States
for money damages . . . {T]he Act merely confers jurisdiction upon [the United States Court of
Federal Claims] Whenever the substantive right exists.” United Stares v. Testcm, 424 U.S. 392,
398 (1976).

To pursue a substantive right under the Tucl<er Act, however, a plaintiff must identify and
plead an independent contractual relationship, constitutional provision, federal statute, and/or
executive agency regulation that provide a substantive right to money damages See Todd v.
United Smres, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires
the litigant to identify a substantive right for money damages against the United States separate
from the Tucker Act[.]”); see also Fisher v. United Stares, 402 F.Bd 1167, 1172 (Fed. Cir. 2005)
(en banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must
identify a separate source of substantive law that creates the right to money damages . . . [T]hat
source must be ‘money-mandating.”’). Specifically, a plaintiff must demonstrate that the source
of substantive law upon Which he relies “can fairly be interpreted as mandating compensation by
the Federai Governrnent[.j” Testan, 424 U.S. at 400. And, plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence See Reynolds v. Army & Az`r Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisdiction [isj put
in question . . . [plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.”).

 

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B. Standard Of Review For Motion To Dismiss, Pursuant To RCFC 12(b)(l).

A challenge to the United States Court of Fedei‘al Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(l) motion[.j”
Palmer v. United Srares, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC l2(b)(1) (“Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . But
a party may assert the following defenses by motion: (l) lack of subject~rnatter jurisdiction[.]”).
When considering whether to dismiss an action for lack of subject matter jurisdiction, “a court
must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusred Integration, Inc. v. United Sfates, 659 F.3d 1159,

1163 (Fed. Cir. 2011).
C. Standard Of Review Foi' Pro Se Litigants.

Pro se plaintiffs’ pleadings are held to a less stringent standard than those of iitigants
represented by counsel See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se
complaints “however inartfully pieaded,” are held to “less stringent standards than formal
pleadings drafted by lawyers”). The court traditionally examines the record “to see if [a pro sej
plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 412 F.2d 1285,
1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs
complaiiit, the court “does not excuse [a complaint’sj failures.” Henke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995).

I). Whether The United States Court Of Federal Claiins Has Jurisdictioii To
Adjudicate The Claims Aileged In The July 11, 2016 Complaint.

1. The Government’s Argument.

The Government construed the July 11, 2016 Complaint to identify four claims, alleging
violations of: (1) federal forfeiture statutes; (2) the Takings Clause of the Fifth Amendment;
(3) the Due Process Clause of the Fifth Arnendrnent; and (4) the Adrninistrative Procedures Act
(“APA”), 5 U.S.C. §§ 500~706. Gov’t Mot. at 4.

The Govei‘nment argues that the court does not have jurisdiction to adjudicate the validity
of civil asset forfeitures under the CAFRA or CSA, because those statutes create a comprehensive
scheme for administrative and judicial review that preempts the couit’s Tucker Act jurisdiction.
Gov’t Mot. at 4.

The Crovernment also argues that the United States Court of Appeals for the Federal Circuit
has held that the United States Court of Claiins does not have jurisdiction over a Fifth Ainendment
taking claim, based on the Governrnent’s in rem forfeiture of property, because Plaintiff could
have participated in the forfeiture proceedings Gov’t Mot. at 5.

ln addition, the court does not have jurisdiction to adjudicate violations to the Due Process
Clause of the Fifth Amendment, because it is not money~mandating. Gov’t Mot. at 5. Nor does
the court have jurisdiction to adjudicate claims alleging procedural errors under the APA, without
identifying an independent substantive right to money damages Gov’t Mot. at 5.

2. Plaintiff’s Response.

Plaintiff responds that the court has jurisdiction to adjudicate the claims alleged in the luly
1 1, 2016 Complaint, because “Plaintiff has not been afforded due process regarding the seizure of
his property.” Pl. Resp. at 3.

3. The Government’s Reply.

The Government replies that Plaintiff s Response does not address the arguments raised
in the September 9, 2016 Motion To Dismiss. Gov’t Reply at 2.

4. The Court’s Resolution.

rfhe court reads the luly 11, 2016 Complaint to allege four possible claims: (1) unlawful
seizure of assets under 21 U.S.C. § 881 and 18 U.S.C. § 981; (2) unjust compensation under the
Takings Clause of the Fifth Amendment; (3) violation of due process under the Fifth Amendment;
and (4) unlawful, arbitrary, and capricious agency action under the APA. See Ruderer, 412 F.2d
at 1292 (holding that the court examines a pro Se complaint “to see if the plaintiff has a cause of
action somewhere displayed”).

As to the luly 11, 2016 Cornplaint’s unlawful seizure of assets claim, the United States
Court of Appeals for the Federal Circuit has held that, by enacting 21 U.S.C. § 881 and 18 U.S.C.
§ 981, Congress intended “to preempt any Tucker Act jurisdiction over a money claim that
challenges the propriety of an in rem administrative forfeiture of property[.]” Vereda, Ltda. v.
United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001); see also lnnovai`r Aviation, er. v. United
States, 632 17 .3d 1336, 1342 (Fed. Cir. 2011) (“Congress created a comprehensive administrative
and judicial review of government forfeitures under 21 U.S.C. § 881 and 18 U.S.C. § 981. . . .
[T]his statutory scheme evinces Congress’ intent to preempt any Tucker Act jurisdiction.”).
Thei'efore, the couit does not have jurisdiction to adjudicate the Complaint’s claim that the
forfeiture of Plaintiff’s assets was unlawful under 21 U.S.C. § 881 and 18 U.S.C. § 981.

Likewise, the United States Court of Federal Claims does not have jurisdiction over a Fifth
Arnendment Tal<ings Clause claim based on the Government’s in rem forfeiture of propei'ty, if the
plaintiff could have participated in the forfeiture proceedingsl See Ver'eda, 271 F.3d at 1376. The
July ll, 2016 Complaint does not allege that the Plaintiff was unable to participate in the prior
forfeiture proceedings ln any event, Plaintiff’ s remedy lies in a motion for reconsideration in the
district court, unless that action is now final

ln addition, “[t]he law is well settled that the Due Process clauses of both the Fifth and
Fourteenth Arnendments do not mandate the payment of money and thus do not provide a cause
of action under the Tucl<er Act.” Sml'th v. United States, 709 F.3d 1114, 1116 (Fed, Cir. 2013).
Therefore, the court does not have jurisdiction to adjudicate the July ll, 2016 Complaint’s
allegation that the Government’s seizure of Plairitiff` s property violated the Due Process Clause
of the Fifth Amendment.

Finally, “the APA does not authorize an award of money damages[.]” Wopsock v.
Na!chees, 454 F.3d 1327, 1333 (Fed. Cir. 2006). ln fact, “section 10(a) of the APA,
5 U.S.C. §702, specifically limits the [APA] to actions ‘seeking relief other than money

damages.’” Id. Therefore, to the extent that the July 1 1, 2016 Complaint seeks an award of money
damages under the APA, the court does not have jurisdiction to adjudicate that claim.

E. Whether The Court Sliould Grant Plaintiff Leave To File An Amended
Complaint.

A party may amend its pleadings once as a matter of course. See RCFC 15(a)(1). “In all
other cases a party may amend its pleading only with the opposing party’s written consent or the
court’s leave.” RCFC 15(a)(2). Although the court should freely give leave to amend when justice
requires, “[f|utility of the proposed amendment is an adequate reason to deny leave.” Culror Corp.
v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1333 (Fed. Cir. 2000). “When a party faces the possibility
of being denied leave to amend on the ground of futility, that party must . . . proffer sufficient facts
supporting the amended pleading that the claim could survive a dispositive pretrial motion.”
Kemin Foods, L.C. v. Pigmemos Vegemles Del Ceritro S.A. de C. l/., 464 F.3d 1339, 1354-55 (Fed.
Cir. 2006).

In this case, Plaintiff contends that “[t]he amended complaint [] will comply with the
Tucker Act . . . and the [money~mandating] source of law.” Pl. Resp. at 3. But, Plaintiff does not
identify any specific money-mandating provision that the court may adjudicate under the Tucl<er
Act. lnstead, Plaintiff argues that he “lias not been afforded due process regarding the seizure of
his propeity.” Pl. Resp. at 4. Since the Plaintiff does not propose any amendment that would cure
the jurisdictional defects of the July 11, 2016 Complaint, the court has determined that the
proposed amendment would be futile.

IV. CONCLUSION.
For these reasons, the Government’s September 9, 2016 Motion To Dismiss is granted.

See RCFC 12(b)(1). The Clerk is directed to dismiss the July 11, 2016 Complaint.

IT IS S() ORDERED.

 

SUSAN . BRADEN
Judge

