United States v. Plunk ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
GEORGE FRANK PLUNK; 1975
SUPERCUB, PA-18 AIRCRAFT, FAA
REG. NO. N4545B; T17N R5W, No. 06-35269
SECTION 33, SEWARD PRIME D.C. No.
MERIDIAN, ALASKA, TRACT A,  CV-96-00335-A-
ALASKA STATE LAND SURVEY NO. JWS
76-182, Hock Lake property, OPINION
Defendants-Appellants,
and
TWELVE PIECES OF REAL PROPERTY
WITH ALL APPURTENANCES,
Defendant.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
August 8, 2007—Anchorage, Alaska
Filed December 21, 2007
Before: J. Clifford Wallace, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Wallace
16625
UNITED STATES v. PLUNK 16627
COUNSEL
Phillip Paul Weidner, Phillip Paul Weidner & Assoc.,
Anchorage, Alaska, for the appellant.
Nelson Cohen, United States Attorney for the District of
Alaska, and James Barkeley, Assistant United States Attor-
ney, Anchorage, Alaska, for the appellee.
16628 UNITED STATES v. PLUNK
OPINION
WALLACE, Senior Circuit Judge:
Plunk appeals from the district court’s Amended Final
Decree of Forfeiture. The court awarded Plunk compensation
in lieu of property to be returned under 28 U.S.C. § 2465 and
calculated the amount due to Plunk based on the sale proceeds
of the property. The court denied Plunk any additional com-
pensation for consequential damages related to the seizure and
forfeiture of the property, and disagreed with his argument
that the value of the property should have been calculated at
the date of its return. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I.
Plunk was convicted on several counts related to his partic-
ipation in a coast-to-coast cocaine smuggling conspiracy. We
affirmed those convictions over multiple challenges. See
United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998); United
States v. Plunk, 161 F.3d 15 (9th Cir. 1998) (unpublished).
The facts underlying those convictions, which are not relevant
to this appeal, are outlined in United States v. Plunk, 153 F.3d
at 1015-16. During the twelve years of civil and criminal liti-
gation related to this case, Plunk’s property has been the sub-
ject of various administrative, criminal, and civil forfeiture
proceedings; however, only two assets are involved in this
appeal: (1) a 1975 SuperCub PA-18 aircraft (SuperCub) and
(2) a cabin and real property located in Alaska (Hock Lake
property).
The SuperCub and Hock Lake property were originally part
of two different civil forfeiture cases. In 1994, at the same
time it indicted Plunk, the government sued to forfeit four air-
craft, including the SuperCub, alleging that the aircraft repre-
sented proceeds of Plunk’s drug trafficking and were subject
to forfeiture pursuant to 21 U.S.C. § 881(a). In 1996, after
UNITED STATES v. PLUNK 16629
unsuccessfully pursuing criminal forfeiture proceedings, the
government initiated civil suits against several pieces of real
property, including the Hock Lake property, pursuant to 21
U.S.C. § 881(a) and 18 U.S.C. § 981(a)(1)(A). The proceed-
ings involving the SuperCub and the Hock Lake property
were consolidated in 1997, and the district court granted the
government’s motion for summary judgment on the consoli-
dated civil proceedings, and executed a Final Decree of For-
feiture.
On appeal to our court, however, we held that we could not
determine, based on the record before us, “whether the gov-
ernment [had] met its initial burden of establishing probable
cause linking the Hock Lake property to the drug trade” and
remanded to the district court to make that determination.
United States v. Twelve Pieces of Real Property, 54 Fed.
Appx. 461, 463 (9th Cir. 2003) (unpublished). We also held
that the government’s admissible evidence failed to establish
probable cause for the forfeiture of the SuperCub. Id. at 463-
64.
On remand to the district court, the government declined to
submit additional evidence showing probable cause for the
forfeiture of the Hock Lake property, effectively conceding
that neither the Hock Lake property nor the SuperCub was
subject to forfeiture. By this time, however, both the proper-
ties had been sold. The district court had permitted the gov-
ernment to sell the SuperCub (over Plunk’s objection) in May
1998 while forfeiture proceedings were pending. The Hock
Lake property was sold after the district court’s August 1998
final decree of forfeiture. Because the property had been sold,
the district court directed the parties to confer in order to
reach a settlement on the amount owed.
The parties disagreed over the amount due Plunk, but in
March 2005 Plunk accepted a check for $88,037.25. This
amount included the sale proceeds for the SuperCub and the
Hock Lake property as well as interest, based on the Seized
16630 UNITED STATES v. PLUNK
Assets Deposit Fund rates, that had accrued from the date of
sale. Plunk, however, maintained that he was owed more
money. He argued that he was entitled to (1) damages for his
loss of use and enjoyment of the property, (2) damages for the
rental value of the property, (3) the fair market value of the
property at the time of return, and (4) interest computed at the
Alaska statutory rate from the date of sale. With respect to the
fourth issue, Plunk has not challenged the district court’s final
interest calculation or award of interest on appeal, and the
issue is therefore waived.
The district court held an evidentiary hearing, received sup-
plemental briefs from the parties, and heard oral argument.
The government contended that it was required to return only
the proceeds realized from the sale of the property. The gov-
ernment presented evidence that two months prior to its sale
the Hock Lake property was appraised at $28,000; it sold for
$23,282, including $1,682 in delinquent taxes, leaving a value
to Plunk of $21,600. Plunk presented a broker’s opinion of the
value of the Hock Lake property at the time of the hearing,
but no evidence of its value at the time of its sale in 1999. The
SuperCub was appraised in July 1998 at a value of $52,040
and sold for $52,525. Plunk presented testimony from a
mechanic who claimed that the SuperCub had a December
1998 value of $122,000.
The district court denied Plunk’s request for additional
compensation, amended the Final Decree of Forfeiture to pro-
vide that Plunk should recover from the United States a total
amount of $88,037.25, and recognized that the government
had fully satisfied its obligation to Plunk. Plunk timely
appealed.
II.
We review de novo the district court’s interpretation of fed-
eral forfeiture law. United States v. 25445 Via Dona Christa,
138 F.3d 403, 407 (9th Cir. 1998), amended by 170 F.3d 1161UNITED STATES v. PLUNK 16631
(9th Cir. 1999). We also review de novo a district court’s
denial of a motion for return of property. United States v.
Marshall, 338 F.3d 990, 993 (9th Cir. 2003).
[1] Plunk first contends that the government’s seizure and
forfeiture of his property violated his Fifth Amendment due
process rights and that he is therefore entitled to be “made
whole” by recovering consequential damages for his loss of
use and enjoyment, and the rental value of his property from
the date of seizure to the date of sale. While it is true that we
require that a claimant be made whole when he or she has suf-
fered an unconstitutional seizure, see, e.g., United States v. 22
Santa Barbara Dr., 264 F.3d 860, 869 (9th Cir. 2001), Plunk
suffered no due process violation. Due process “prohibits the
Government in a civil forfeiture case from seizing real prop-
erty without first affording the owner notice and an opportu-
nity to be heard.” United States v. James Daniel Good Real
Property, 510 U.S. 43, 46 (1993). Plunk does not dispute that
he received notice of the government’s intent to seek forfei-
ture and does not argue that he lacked an opportunity to be
heard.
The return of Plunk’s property is thus governed only by 28
U.S.C. § 2465. Prior to its amendment in 2000, the language
appropriate in this appeal, 28 U.S.C. § 2465, read:
Upon the entry of judgment for the claimant in any
proceeding to condemn or forfeit property seized
under any Act of Congress, such property shall be
returned forthwith to the claimant or his agent; but
if it appears that there was reasonable cause for the
seizure, the court shall cause a proper certificate
thereof to be entered and the claimant shall not, in
such case, be entitled to costs, nor shall the person
who made the seizure, nor the prosecutor, be liable
to suit or judgment on account of such suit or prose-
cution.
16632 UNITED STATES v. PLUNK
Plunk contends that 28 U.S.C. § 2465 requires that he
receive consequential damages. But no case in this circuit has
so held, and other circuits have rejected the argument that sec-
tion 2465 requires compensatory or consequential damages.
See, e.g., United States v. 1461 W. 42nd St., 251 F.3d 1329,
1339 (11th Cir. 2001); United States v. One (1) 1979 Cadillac
Coupe de Ville, 833 F.2d 994, 998 (Fed. Cir. 1987). We agree
with our sister circuits.
[2] First, nothing in the text of section 2465 provides for
the payment of consequential damages. The statute “requires
only that, if the claimant prevails in a forfeiture proceeding,
‘the property seized’ shall be returned to the claimant. It does
not say ‘the equivalent value of the property seized’ shall be
returned.” One (1) 1979 Cadillac Coupe de Ville, 833 F.2d at
998. The statute’s silence on the issue of consequential dam-
ages is particularly significant here because permitting conse-
quential damages would constitute a waiver of sovereign
immunity. See id. Without “clear and explicit” language waiv-
ing immunity, it would be improper for us to construe the stat-
ute to permit consequential damages against the government.
Id. at 998-99.
[3] Second, to the extent it should be considered, nothing
in the legislative history of section 2465 suggests that Con-
gress intended to subject the federal government to conse-
quential damages for seized property and so abrogate
sovereign immunity. See id. at 999. On the contrary, the Elev-
enth Circuit has persuasively stated that the statute’s purpose
was actually “to insulate the government from, rather than
broaden the government’s exposure to, liability for costs or
damages for initially reasonable but ultimately improvident
seizures.” 1461 W. 42nd St., 251 F.3d at 1339. As the Federal
Circuit concluded in One (1) 1979 Cadillac Coupe de Ville,
the “requirement that the seized property ‘shall be returned
forthwith to the claimant’ cannot properly be interpreted as
‘mandating compensation by the Federal Government for the
UNITED STATES v. PLUNK 16633
damage sustained’ by the claimant as a result of the seizure.”
833 F.2d at 999 (internal citation omitted).
[4] Finally, our interpretation of section 2465 is consistent
with our precedent related to the return of seized property. In
United States v. $277,000 U.S. Currency, 69 F.3d 1491, 1492
(9th Cir. 1995), we considered what a property owner may
recover when the “United States seizes property . . . and is
ultimately found to have no proper claim to the property.”
Section 2465 was not at issue in $277,000 U.S. Currency, but
we cited with approval the Federal Circuit’s determination
that section 2465 did not permit consequential damages. See
id. at 1497-98. We ultimately held that “the government is not
generally liable for damages . . . because of sovereign immu-
nity.” Id. at 1492. That reasoning applies with equal force to
property seized and returned under section 2465.
Awarding consequential damages to Plunk would contra-
vene the doctrine of sovereign immunity. Nothing in section
2465 permits that contravention, and we affirm the district
court’s refusal to award consequential damages.
III.
Plunk’s second contention is that the district court erred
when it relied on the actual sale price of the SuperCub and
Hock Lake property to determine the fair market value of the
properties. We review de novo the district court’s legal deter-
mination that the value at the time of the sale rather than the
value at the time of return is the appropriate measure. See
Marshall, 338 F.3d at 993. We review for clear error the dis-
trict court’s factual determination of the value at the time of
sale. Id.Because the property had already been sold when Plunk
prevailed on appeal of the forfeiture proceedings, the district
court properly determined that Plunk was entitled to receive
the value of the property that had been sold. See Republic
16634 UNITED STATES v. PLUNK
Nat’l Bank of Miami v. United States, 506 U.S. 80, 95-96
(1992) (C.J. Rehnquist, concurring) (stating that section 2465
can be construed as authorizing the return of proceeds where
the forfeited property has been sold by the government). The
district court further determined that the sale price was an
appropriate measure of the property’s value.
[5] Plunk contends that he is entitled to the value of the
property on the date of return in 2006, not the value on the
dates of the sales in 1998 and 1999. This contention conflicts
with our precedent on a related issue. In Marshall, which
dealt with the return of property under Federal Rule of Crimi-
nal Procedure 41(g), we stated that “[o]nly on the date of sale
did the government lose the ability to return the property
itself. For that reason, the value [of the property] on the date
of sale [is] the proper measure of the substitution of money
for return of the property.” 338 F.3d at 994. While Marshall
did not address 28 U.S.C. § 2465, its reasoning is persuasive
in this context. Both 28 U.S.C. § 2465 and Rule 41(g) provide
for the return of property where that property is improperly
seized by the government and, as in Marshall, the government
here lost the ability to return Plunk’s property on the date that
it was sold. Consistent with Marshall’s reasoning, we hold
that the date of sale is the proper date for calculating the
amount of money substituted for the return of property under
section 2465. Under this rule, Plunk’s expert testimony about
the value of the property on the date of the evidentiary hear-
ing is not helpful, and the district court did not err in relying
on the date of sale rather than the date of return in determin-
ing the property’s value.
[6] We also reject Plunk’s argument, made for the first time
on appeal, that the SuperCub sale was not commercially rea-
sonable and that the sale price did not reflect the fair market
value at the time of the sale. The district court’s determination
of fair market value was supported by the government’s
experts’ appraisals, which the court was entitled to rely on
over Plunk’s expert’s post hoc appraisal. These factual find-
UNITED STATES v. PLUNK 16635
ings based on conflicting evidence were not clearly erroneous.
We affirm the district court’s determination of the property’s
value.
IV.
[7] Plunk requests attorney’s fees under the Equal Access
to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). However, the
record does not show, and Plunk does not argue in his brief,
that he ever filed an application for attorney’s fees pursuant
to 28 U.S.C. § 2412(d)(1)(B). His failure to make a proper
application for attorney’s fees under the EAJA forecloses our
review of the issue.
[8] Plunk also contends that he is entitled to costs. While
an award of costs seems permissible under section 2465,
awarding them here would be inappropriate. Plunk’s briefs
fail to provide a record sufficient to support a decision on
costs, particularly because he does not clarify for which pro-
ceedings during this drawn-out litigation he requests costs. If
he refers to this court’s earlier decision, in Twelve Pieces, that
the SuperCub and Hock Lake property were improperly for-
feited, he has not explained how an award of costs would be
made considering that he did not entirely prevail. Further-
more, he failed to ask the district court for an award of costs
after our remand.
Plunk is not entitled to costs for this appeal because the
government prevailed in the district court and he has not suc-
ceeded in his present appeal.
AFFIRMED. ATTORNEY’S FEES AND COSTS
DENIED.