                                                                              FILED
                             NOT FOR PUBLICATION                                 FEB 12 2015

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


MARK SCHWARTZ,                                   No. 12-17133

                Plaintiff - Appellant.           D.C. No. 4:12-cv-00586-YGR

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

                Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                  Yvonne Gonzalez Rogers, District Judge, Presiding

                       Argued and Submitted December 8, 2014
                              San Francisco, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.**

       Mark Schwartz appeals the district court’s decision dismissing his tort

claims brought under the Federal Tort Claims Act (FTCA). We have jurisdiction

under 28 U.S.C. § 1291. Reviewing the district court’s decision de novo, White v.

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Gloria M. Navarro, Chief District Judge for the United
States District Court for the District of Nevada, sitting by designation.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000), we affirm the district court’s dismissal

of Schwartz’s claims for wrongful eviction and wrongful lockout, and we vacate

and remand the dismissal of Schwartz’s negligence claim.

      As an initial matter, Schwartz argues that his apartment was not covered by

the final criminal forfeiture order. Although the street address of Schwartz’s

apartment was not expressly listed in the forfeiture order, Schwartz does not

dispute that the apartment was part of the same building and lot as 704 North Point

Street. Therefore, under the broad terms of the forfeiture order, the apartment was

subject to forfeiture.

      Relying on the forfeiture order, the district court properly dismissed

Schwartz’s wrongful eviction and wrongful lockout claims. To establish claims

for wrongful eviction and wrongful lockout, Schwartz must be able to establish

that he had a tenancy interest in the apartment. See S.F. Admin. Code § 37.2(t);

Cal. Civ. Code § 789.3(b). However, because Schwartz did not petition for an

ancillary proceeding or seek relief from the Attorney General under the governing

criminal forfeiture statutes, his interest in the apartment was “extinguished” upon

entry of the final forfeiture order. See Fed. R. Crim. P. 32.2 advisory committee’s

note to subdivision (c)(2). Therefore, Schwartz cannot maintain a suit for

wrongful eviction and wrongful lockout. See 21 U.S.C. § 853(k)(2) (“[N]o party


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claiming an interest in property subject to forfeiture under this section may

commence an action at law or equity against the United States concerning the

validity of his alleged interest in the property . . . .”).

       The district court erred, however, in dismissing Schwartz’s negligence

claim. In his negligence claim, Schwartz requests damages for the loss of his

personal belongings that were in the apartment when it was seized. The

Government does not dispute that Schwartz owned this personal property.

Because Schwartz’s negligence claim does not involve any disputed ownership

interests, we hold that the claim is not similarly affected by the ancillary

proceedings provisions, which are meant only to determine a claimant’s interest in

forfeited property. See 21 U.S.C. § 853(n); United States v. Nava, 404 F.3d 1119,

1124 (9th Cir. 2005).

       The Government argues that Schwartz’s negligence claim is independently

barred by sovereign immunity. See 28 U.S.C. § 2680(c). We remand for the

district court to consider this sovereign immunity argument in the first instance.

See Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1035 (9th Cir. 2014).

       AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall bear their own costs.




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