Julio A. Ramos v. United States , 2013 U.S. Claims LEXIS 988 ( 2013 )

In the United States Court of Federal Claims
No. 12-859 C
(Filed August 1, 2013)
* * * * * * * * * * * * * * *
JULIO A. RAMOS, *
* Takings; 28 U.S.C. § 2501
Pro Se Plaintiff, * (2006); RCFC 12(b)(1); RCFC
* 12(b)(6); Untimely Claim;
v. * Confiscation of Property at Time
* of Criminal Arrest Not a Taking
THE UNITED STATES, * for Public Use; Res Judicata;
* Pro Se.
Defendant. *
* * * * * * * * * * * * * * *
Julio A. Ramos, pro se plaintiff.
Ryan M. Majerus, United States Department of Justice, with whom were
Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, Franklin E. White, Jr., Assistant Director, Washington, DC, for
defendant. Letitia B. Pinkney, Office of Chief Counsel, Drug Enforcement
Administration, of counsel.
__________________________
OPINION
_______________________
Bush, Judge.
The court has before it defendant’s motion to dismiss this suit for lack of
jurisdiction and for failure to state a claim upon which relief may be granted.
Defendant’s motion has been fully briefed.1 For the reasons stated below,
defendant’s motion, filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of
the United States Court of Federal Claims (RCFC), is granted.
BACKGROUND2
Mr. Ramos was indicted for drug trafficking in 1999 in Texas but was then
living in the Dominican Republic. Compl. ¶¶ 7-8. The United States and the
Dominican Republic cooperated in arresting Mr. Ramos and seizing his assets. Id.
¶¶ 9-13. His assets included vehicles, jewelry, electronics, and real property which
remained in the custody of the Dominican authorities. Id. ¶¶ 13-14. Mr. Ramos
was extradited to the United States, stood trial, was convicted and is currently
serving a 405-month sentence of imprisonment. Id. ¶¶ 15-16. The United States
did not pursue forfeiture of Mr. Ramos’s seized assets. Id. ¶ 17.
In 2002, Mr. Ramos “began litigating” the return of his seized assets in a
federal district court in Texas. Compl. ¶ 18; see also Def.’s Mot. App. at A001-
A008. The motion for return of seized property was filed on August 26, 2002
under Federal Rule of Criminal Procedure 41(e), now codified at Fed. R. Crim. P.
41(g). Def.’s Mot. App. at A001. The motion was denied on September 13, 2002,
as was Mr. Ramos’s related motion for relief from judgment, on July 13, 2005. Id.
at A014, A019-A022. A second motion for relief from judgment, filed December
19, 2005, was denied on January 3, 2006. Id. at A023-A032. The trial court’s
denial of Mr. Ramos’s request for the return of his seized property was affirmed by
1
/ The parties’ briefs include Defendant’s Motion to Dismiss (Def.’s Mot.), Plaintiff’s
Response to Defendant’s Motion to Dismiss (Pl.’s Resp.), Defendant’s Reply (Def.’s Reply), and
Plaintiff’s Notice of Filing of Supplemental Documents (Pl.’s Resp. Supp.).
2
/ The facts recited here are taken from the complaint and are uncontested for the
purposes of deciding defendant’s motion. See Def.’s Mot. at 2 (“For the purposes of this motion,
we assume, as we must, that all allegations in the complaint are true.”). Additional facts are
provided by court records relied upon by the parties. In a challenge to a complaint for failure to
state a claim, court documents are public records which, if undisputed, may be considered
without converting a motion to dismiss under RCFC 12(b)(6) into a motion for summary
judgment. See, e.g., Wagstaff v. United States, 105 Fed. Cl. 99, 103 n.1 (2012) (citing
Biomedical Patent Mgmt. Corp. v. Cal. Dep’t of Health Servs., 505 F.3d 1328, 1331 n.1 (Fed.
Cir. 2007); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994)); Boye v. United
States, 90 Fed. Cl. 392, 416 (2009) (citations omitted), aff’d, 413 F. App’x 239 (Fed. Cir. 2011).
2
the United States Court of Appeals for the Fifth Circuit. Id. at A033-A036; see
Ramos v. United States, 212 F. App’x 348 (5th Cir. 2007) (Ramos I).
Next, on July 27, 2010, Mr. Ramos filed a civil suit in the same Texas
district court for the return of his seized property, again citing Federal Rule of
Criminal Procedure 41(e). Def.’s Mot. App. A037-A044. In this suit, Mr. Ramos
added a claim seeking damages for the “Deprivation of Ramos’ property,” citing
the Fifth Amendment of the United States Constitution. Id. at A038. According to
this suit, the actual value of the seized property in the Dominican Republic was
$51,546,000. Id. at A039.
Mr. Ramos’s civil suit was dismissed, on res judicata grounds, on December
19, 2010. Def.’s Mot. App. at A050-A052. Mr. Ramos again filed a motion for
relief from judgment, which was denied on April 5, 2011. Id. at A053-A057. The
dismissal of the civil suit was upheld by the Fifth Circuit on December 21, 2011.
Id. at A058-A064; see Ramos v. United States, 455 F. App’x 424 (5th Cir. 2011)
(Ramos II).
Aside from the criminal and civil proceedings in district court and appeals to
the Fifth Circuit, Mr. Ramos has pursued other avenues of recourse in his quest to
retrieve the property seized in the Dominican Republic or to obtain compensation
for his confiscated property. By letter dated May 14, 2007, the United States
Embassy, acting in response to a court order apparently obtained by Mr. Ramos,
informed the Dominican authorities that the United States had no interest in the
seized property and presented a request that the property be returned to Mr. Ramos,
if appropriate. Compl. ¶ 21, Ex. B. Mr. Ramos, on March 20, 2012, sent a
document titled “Demand for Compensation for Property Seized/Converted” to the
Attorney General of the United States, the Dominican Republic Embassy, and the
Drug Enforcement Administration. Compl. ¶ 23, Ex. A (Federal Tort Claim Pages
1-3). The amount claimed in the “Demand” is the same amount claimed in Mr.
Ramos’s civil suit in the district court – $51,546,000. Compl. ¶ 23, Ex. A (Federal
Tort Claim Page 1). Finally, in documents dated July 25, 2005, October 17, 2007,
January 8, 2008, July 22, 2008, and May 8, 2013, plaintiff appears to have made
efforts to obtain relief from Dominican authorities. See generally Pl.’s Resp. Supp.
Mr. Ramos asserts he has been notified by the Dominican authorities that his
seized property is no longer “traceable.” Compl. ¶ 22. Plaintiff also states that he
3
has had no response from the United States as to his demand for compensation for
the value of the seized property. Id. ¶ 24. On December 10, 2012, plaintiff filed a
three-count complaint in this court, asserting negligent “directed” seizure of his
property by the United States; conversion of his property by the United States; and
a taking of his property by the United States.3 Id. at 8-9. Defendant raises several
challenges to the claims in the complaint which will be discussed in the analysis
section of this opinion.
DISCUSSION
I. Standards of Review
A. Pro Se Litigants
The court acknowledges that Mr. Ramos is proceeding pro se, and is “not
expected to frame issues with the precision of a common law pleading.” Roche v.
United States Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs
are entitled to a liberal construction of their pleadings. See Haines v. Kerner, 404
U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be
held to “less stringent standards than formal pleadings drafted by lawyers”).
Accordingly, the court has examined the complaint and briefs thoroughly and has
attempted to discern all of plaintiff’s legal arguments.
B. RCFC 12(b)(1)
In rendering a decision on a motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed
factual allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff
bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v.
United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors
3
/ Plaintiff’s request for a jury trial must necessarily be rejected because there is no right
to a jury trial in this court and this court does not conduct trials by jury. E.g., Webster v. United
States, 74 Fed. Cl. 439, 444 (2006) (citing United States v. Sherwood, 312 U.S. 584, 587 (1941)).
4
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a
preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC
12(h)(3).
The court may inquire into evidence outside the pleadings to establish
jurisdictional facts. Reynolds, 846 F.2d at 747; Rogers v. United States, 95 Fed.
Cl. 513, 514-15 (2010) (citations omitted). “Indeed, the court may, and often must,
find facts on its own.” Martinez v. United States, 48 Fed. Cl. 851, 857 (2001)
(citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed. Cir.
1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)), aff’d in
relevant part, 281 F.3d 1376 (Fed. Cir. 2002). When the government has asserted
that a claim is barred by a jurisdictional statute of limitations, the plaintiff bears the
burden of proving the timeliness of his suit. See, e.g., Alder Terrace, 161 F.3d at
1377 (“As the plaintiff in the underlying suit, the burden of establishing
jurisdiction, including jurisdictional timeliness, must be carried by the [plaintiff].”
(citing McNutt, 298 U.S. at 189)).
C. RCFC 12(b)(6)
When considering a motion to dismiss under RCFC 12(b)(6), “the
allegations of the complaint should be construed favorably to the pleader.”
Scheuer, 416 U.S. at 236. The court must inquire, however, whether the complaint
meets the “plausibility” standard described by the United States Supreme Court,
i.e., whether it adequately states a claim and provides a “showing [of] any set of
facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 560, 563 (2007) (citations omitted). It is well-settled that
a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by
the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295
F.3d 1252, 1257 (Fed. Cir. 2002).
II. Tucker Act Jurisdiction
This court’s jurisdiction, based on the Tucker Act, 28 U.S.C. § 1491(a)(1)
(2006), is a grant of
jurisdiction to render judgment upon any claim against
5
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.
The Tucker Act, however, “does not create any substantive right enforceable
against the United States for money damages. The Court of Claims has recognized
that the Act merely confers jurisdiction upon it whenever the substantive right
exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). A
plaintiff coming before the United States Court of Federal Claims, therefore, must
also identify a separate provision of law conferring a substantive right for money
damages against the United States. Todd v. United States, 386 F.3d 1091, 1094
(Fed. Cir. 2004) (citing Testan, 424 U.S. at 398).
III. Analysis
A. This Court Has No Jurisdiction over Tort Claims
The first two counts of the complaint, which allege negligent “directed”
seizure and conversion of property by the United States, Compl. at 8, sound in tort.
E.g., Johnson v. United States, 105 Fed. Cl. 85, 93 (2012) (“Plaintiff’s allegation of
negligence is an archetypal tort claim.”) (citation omitted); Republic of New
Morocco v. United States, 98 Fed. Cl. 463, 468 (2011) (“Claims alleging
conversion or destruction of property . . . sound in tort.”) (citation omitted). These
two tort claims are not within this court’s jurisdiction. See 28 U.S.C. § 1491(a)(1)
(stating that the court’s jurisdiction is limited to cases “not sounding in tort”);
Keene Corp. v. United States, 508 U.S. 200, 214 (1993) (noting that “tort cases are
outside the jurisdiction of the Court of Federal Claims”); Brown v. United States,
105 F.3d 621, 623-24 (Fed. Cir. 1997) (noting that this court “lacks jurisdiction
over tort actions against the United States”). Because counts one and two of the
complaint sound in tort, these claims must be dismissed for lack of subject matter
jurisdiction.
B. Plaintiff’s Takings Claim is Time-Barred
There is no dispute that this court possesses subject matter jurisdiction over
6
takings claims against the United States. E.g., Moden v. United States, 404 F.3d
1335, 1341 (Fed. Cir. 2005). Defendant asserts, however, that Mr. Ramos’s
takings claim, presented in count three of the complaint, is barred by the court’s
six-year statute of limitations, 28 U.S.C. § 2501 (2006), thus defeating this court’s
jurisdiction over the sole remaining claim in this suit.4 Def.’s Mot. at 8. If Mr.
Ramos’s takings claim accrued before December 10, 2006, his suit, filed on
December 10, 2012, is barred by § 2501.
The parties disagree as to when Mr. Ramos’s takings claim accrued.
Defendant argues that the date of the property seizure in the Dominican Republic,
August 13, 1999, marks the accrual of plaintiff’s takings claim. Def.’s Mot. at 8.
Plaintiff first argues that his takings claim accrued no earlier than March 19, 2007,
the date of the district court order and the date on which, in plaintiff’s view, the
United States “relinquished an interest in the [seized] property.” Pl.’s Resp. at 2-3.
Although it is not clear from plaintiff’s response brief, plaintiff might also contend
that the letter from the American Embassy, dated May 17, 2007, marks the accrual
date of his claim, because this letter “finally” relinquished any rights the United
States could assert in the seized property. Id.
The court finds that Mr. Ramos’s takings claim accrued no later than August
26, 2002, when he filed a motion for the return of his seized property in the federal
district court.5 It is clear from the face of his motion that in August of 2002 Mr.
Ramos knew all of the facts of the 1999 seizure that would be needed to support
his claim for a taking. See Def.’s Mot. App. at A001-A008. Because plaintiff
knew, on August 26, 2002, all of the necessary facts regarding the government
action he challenges in this suit, his takings claim accrued no later than August 26,
2002. See, e.g., Hopland Band of Pomo Indians v. United States, 855 F.2d 1573,
1577 (Fed. Cir. 1988) (“[A] cause of action against the government has ‘first
accrued’ only when all the events which fix the government’s alleged liability have
occurred and the plaintiff was or should have been aware of their existence.”
4
/ Defendant does not accept that the complaint presents a proper takings claim, even if
the jurisdictional bar of § 2501 could be overcome. See infra.
5
/ The Fifth Circuit recognized in Ramos II that Mr. Ramos, as of August 26, 2002, could
have asserted a claim for compensation for his seized property. 455 F. App’x at 427 (“When
Ramos initially sought the return of his property, he could have also brought a claim for damages
related to the seizure.”).
7
(citing Kinsey v. United States, 852 F.2d 556, 557 n.* (Fed. Cir. 1988))).
Because plaintiff’s takings claim was filed more than ten years after it
accrued, it is time-barred by § 2501. This court’s six-year limitations period is
jurisdictional and may not be equitably tolled. John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133-34 (2008). For this reason, count three of the
complaint must also be dismissed pursuant to RCFC 12(b)(1).
C. In the Alternative, Count Three of the Complaint Also Fails to
State a Claim
Defendant, pursuant to RCFC 12(b)(6), challenges the sufficiency of the
complaint regarding plaintiff’s takings claim on several grounds. Should the court
have erred in its analysis of the accrual date of plaintiff’s takings claim, the court
also addresses two of defendant’s arguments here for the sake of judicial economy.
First, defendant contends that seizure of property in furtherance of a criminal
prosecution cannot be a taking. Def.’s Mot. at 12-14. Second, defendant argues
that plaintiff’s taking claim is barred by the doctrine of res judicata. Id. at 14-15.
The court agrees with both of these arguments, as discussed below.6
1. Seizures in Criminal Investigations Do Not Give Rise to
Takings Claims
This court is bound by the precedential decisions of the United States Court
of Appeals for the Federal Circuit. One such decision is Acadia Technology, Inc.
v. United States, 458 F.3d 1327 (Fed. Cir. 2006). In Acadia, the Federal Circuit
held that:
When property has been seized pursuant to the criminal
laws or subjected to in rem forfeiture proceedings, such
deprivations are not ‘takings’ for which the owner is
entitled to compensation. The same rule applies even if
the property is seized as evidence in a criminal
investigation or as the suspected instrumentality of a
6
/ The court does not reach and expresses no opinion as to the merits of defendant’s other
RCFC 12(b)(6) arguments.
8
crime . . . .
458 F.3d at 1331 (citations omitted). The principle that police power seizures are
not takings is well-established in precedent binding on this court. See Kam-Almaz
v. United States, 682 F.3d 1364, 1371 (Fed. Cir. 2012) (“‘Property seized and
retained pursuant to the police power is not taken for a “public use” in the context
of the Takings Clause.’” (quoting AmeriSource Corp. v. United States, 525 F.3d
1149, 1153 (Fed. Cir. 2008) and citing Acadia, 458 F.3d at 1331-32)).
This court has applied the principle set forth in Kam-Almaz, AmeriSource
and Acadia in a number of cases. See, e.g., Steward v. United States, 80 Fed. Cl.
540, 543 (2008) (stating that “the loss, depreciation or damage of items confiscated
in the context of a criminal investigation cannot be the basis of a takings claim in
this court”) (citations omitted); Alde, S.A. v. United States, 28 Fed. Cl. 26, 34
(1993) (noting that when this court or its predecessors have considered claims
“based on the seizure of property by the Government, assertions that a taking
occurred have been uniformly rejected”). In Acadia, the Federal Circuit approved
of a decision of this court which reasoned that:
The government’s seizure, retention, and damaging of
[confiscated] property did not give rise to an actionable
claim for a taking, . . . because “items properly seized by
the government under its police power are not seized for
‘public use’ within the meaning of the Fifth
Amendment.”
458 F.3d at 1332 (quoting Seay v. United States, 61 Fed. Cl. 32, 35 (2004)).
Because the property confiscated from Mr. Ramos was seized pursuant to lawful
criminal proceedings and thus was not taken for public use, its loss, under the
precedent of this circuit, cannot give rise to a takings claim. See id.
The facts alleged in Mr. Ramos’s takings claim do not entitle him to a legal
remedy. For this reason, his takings claim, if it were not time-barred, would
necessarily be dismissed for failure to state a claim. Lindsay, 295 F.3d at 1257.
Thus, count three of the complaint would be dismissed under RCFC 12(b)(6) if it
were within this court’s jurisdiction.
9
2. Plaintiff’s Takings Claim Is Barred by Res Judicata
Defendant also contends that Mr. Ramos’s takings claim is barred by the
doctrine of res judicata. The Supreme Court has explained that under the doctrine
of res judicata, also known as claim preclusion, “[a] final judgment on the merits
of an action precludes the parties or their privies from relitigating issues that were
or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 398 (1981). In order for res judicata to apply here, the government
must demonstrate that: “(1) the parties are identical or in privity; (2) the first suit
proceeded to a final judgment on the merits; and (3) the second claim is based on
the same set of transactional facts as the first.” Ammex, Inc. v. United States, 334
F.3d 1052, 1055 (Fed. Cir. 2003) (citations omitted). This court reviews motions
to dismiss based on res judicata under the standards of RCFC 12(b)(6). Chisolm v.
United States, 82 Fed. Cl. 185, 193, aff’d, 298 F. App’x 957 (Fed. Cir. 2008).
There is no question that the parties are identical in this suit and the civil suit
filed by Mr. Ramos in the district court seeking the return of his seized property.
Compare Compl. at 1, with Def.’s Mot. App. at A037. There is also no dispute that
the civil suit proceeded to a final judgment on the merits. Def.’s Mot. App. at
A050-A052 (dismissing the lawsuit on res judicata grounds); see 18A Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 4435 (2d ed. 2002) (“[D]ismissal of a second action on the ground that
it is precluded by a prior action is itself effective as res judicata, and a judgment on
the merits that forecloses further litigation of the preclusion question in a third
action.”); see also, e.g., Sommer v. Unum Life Ins. Co. of Am., 35 F. App’x 489,
490-91 (9th Cir. 2002) (affirming the res judicata dismissal of the third suit filed
by the appellant which followed the res judicata dismissal of his second suit);
Fenelon v. United States Postal Serv., 43 F.3d 669, 1994 WL 724994, at *2 (5th
Cir. Dec. 14, 1994) (table) (“[A] dismissal on the basis of res judicata is also a final
decision on the merits which has res judicata effect.”) (citation omitted). Here,
therefore, the first two criteria for the application of the doctrine of res judicata
have been met.
Furthermore, plaintiff’s takings claim is based on the same transactional
facts as the damages claim in Mr. Ramos’s civil suit in the district court. The
takings claim before this court requests compensation in the amount of
$51,546,000, the same amount alleged in Mr. Ramos’s civil suit before the district
10
court to be the actual value of the seized property. Compare Compl. at 9, with
Def.’s Mot. App. at A039. Mr. Ramos’s takings claim also challenges the same
government action – the seizure of plaintiff’s property in the Dominican Republic.
Thus, the claims in the two suits are based on identical transactional facts. For
these reasons, with all three criteria for claim preclusion having been met, Mr.
Ramos’s takings claim, if it were not time-barred, would necessarily be dismissed
for failure to state a claim because it is also barred by the doctrine of res judicata.
D. All of Mr. Ramos’s Claims Must Be Dismissed Not Transferred
The parties dispute whether transfer of plaintiff’s claims, rather than
dismissal, is appropriate. Transfer of cases from this court to a district court is
governed by 28 U.S.C. § 1631 (2006), which states in relevant part that:
Whenever a civil action is filed in [this] court . . . and
[this] court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the
action or appeal could have been brought at the time it
was filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for the court
to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is
transferred.
As this court has stated, “[t]ransfer is appropriate when three elements are met: (1)
The transferring court lacks subject matter jurisdiction; (2) the case could have
been filed in the court receiving the transfer; and (3) the transfer is in the interests
of justice.” Brown v. United States, 74 Fed. Cl. 546, 550 (2006) (citing 28 U.S.C.
§ 1631).
The parties have only addressed the question of whether Mr. Ramos’s tort
claims should be transferred to a district court. The court will nonetheless begin its
analysis of the transfer dispute with a determination of whether plaintiff’s takings
claim should be transferred to a district court. See Texas Peanut Farmers v. United
States, 409 F.3d 1370, 1375 (Fed. Cir. 2005) (noting that § 1631 provides a
“statutory requirement that transfer be considered to cure jurisdictional defects”).
11
The court will then turn to the question of whether § 1631 indicates that plaintiff’s
tort claims should be transferred to a district court.
1. No Jurisdiction in a District Court for a Takings Claim
Exceeding $10,000
Mr. Ramos seeks $51,546,000 for his takings claim based on the seizure of
his property in the Dominican Republic. Compl. at 9. As the Federal Circuit has
noted, “the Tucker Act provides the Court of Federal Claims exclusive jurisdiction
over takings claims for amounts greater than $10,000.” Morris v. United States,
392 F.3d 1372, 1375 (Fed. Cir. 2004) (citing Palm Beach Isles Assocs. v. United
States, 208 F.3d 1374, 1383 n.10 (Fed. Cir. 2000)). Because Mr. Ramos’s takings
claim could not “have been brought” in a district court, transfer of his takings
claim is not permitted by 28 U.S.C. § 1631.
2. Transfer of Plaintiff’s Tort Claims Is Not in the Interest of
Justice
Plaintiff requests, as an alternative to dismissal, that his tort claims for
negligence and conversion be transferred to a federal district court. Pl.’s Resp. at
2. The court does not agree, for at least three reasons. First, the Supreme Court
has recognized that tort claims cognizable under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680 (2006), do not include claims for
injuries which have occurred outside the United States. Sosa v. Alvarez-Machain,
542 U.S. 692, 712 (2004). Sosa is controlling precedent and would bar relief for
plaintiff on his tort claims in a district court in Texas, where he resides, or in the
United States District Court for the District of Columbia, the court to which he has
requested transfer of his tort claims. See, e.g., Al Janko v. Gates, 831 F. Supp. 2d
272, 284 n.23 (D.D.C. 2011) (citing Sosa, 542 U.S. at 711-12); Hernandez v.
United States, 802 F. Supp. 2d 834, 844 (W.D. Tex. 2011) (citing Sosa, 542 U.S. at
712). Because the FTCA would not support relief for Mr. Ramos’s tort claims in a
district court, it is not in the interest of justice to transfer his tort claims.
Second, as noted by the Fifth Circuit in Ramos II, any additional claims
arising from the operative facts of the seizure of plaintiff’s property are now barred
by the doctrine of res judicata. 455 F. App’x at 427 (“When Ramos initially
sought the return of his property, he could have also brought a claim for damages
12
related to the seizure. As a consequence, Ramos’s added claim for damages does
not prevent res judicata from barring his claims.”). Third, in the court’s view,
plaintiff’s tort claims would not be timely under the two-year statute of limitations
of the FTCA because they were submitted to the United States almost ten years
after August 26, 2002, when, at the latest, such claims accrued. See 28 U.S.C.
§ 2401(b) (2006). Because plaintiff’s tort claims are untimely and fail to state a
claim upon which a district court may grant relief, transfer of these claims,
pursuant to § 1631, is not appropriate.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
(1) Defendant’s Motion to Dismiss, filed March 4, 2013, is GRANTED;
(2) The Clerk’s office is directed to ENTER final judgment
DISMISSING all counts of plaintiff’s complaint, filed December 10,
2012, without prejudice for lack of subject matter jurisdiction; and,
(3) No costs.
Lynn J. Bush
Judge
13