In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3857
JAMES S TUART, JR.,
Plaintiff-Appellant,
v.
M ATTHEW J. R ECH III,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-0507—Charles N. Clevert, Jr., Chief Judge.
S UBMITTED A PRIL 14, 2010—D ECIDED M AY 5, 2010
Before B AUER, P OSNER, and E VANS, Circuit Judges.
P OSNER, Circuit Judge. A magistrate judge issued a
warrant for federal officers to search the premises of a
company of which James Stuart is a principal, for
evidence of tax evasion. Stuart moved for the return of
the property seized in the search, arguing that the
search had violated the Fourth Amendment. The motion
was assigned to the magistrate judge who had issued
the warrant, and he properly construed it as a motion
2 No. 09-3857
for return of property under Rule 41(g) of the Federal
Rules of Criminal Procedure, though Stuart, who was
pro se, hadn’t labeled it a Rule 41(g) motion. (The
criminal investigation against Stuart for tax evasion
apparently is proceeding, though he has not yet been
charged.)
Several months later, Stuart, still pro se, filed another
pleading, this one captioned “replevin,” that names as
the only defendant Matthew Rech, the Internal Revenue
Service agent who had applied for the search warrant.
The pleading contends that in the course of the search
Rech seized chemical formulas worth millions of dollars,
and demands damages as well as the return of the
property or, if Rech no longer has it (it would be
unusual for the law enforcement agent who had
executed a search warrant for corporate documents to
retain them in his personal possession), restitution of
its pecuniary value. The pleading was assigned to a
district judge, who dismissed it on the ground that it
was “equivalent” to the Rule 41(g) motion.
The magistrate judge had denied Stuart’s initial
motion, correctly characterized as a Rule 41(g) motion,
and Stuart has not appealed that denial. But we pause
to note the oddity, and probably the irregularity, of the
magistrate judge’s having denied the motion rather
than recommended that the district judge deny it. We
can’t find in 28 U.S.C. § 636(b), which lists a magistrate
judge’s powers, or in the cases construing that section,
authority for a magistrate judge to rule finally on Rule
41(g) motions. See Gomez v. United States, 490 U.S. 858, 873-
No. 09-3857 3
74 (1989); Thomas v. Arn, 474 U.S. 140, 154 (1985); King v.
Ionization Int’l, Inc., 825 F.2d 1180, 1185 (7th Cir. 1987). We
have found numerous cases in which a magistrate judge
who is asked to consider a Rule 41(g) motion issues a
report and recommendation to the district judge,
pursuant to § 636(b)(1)(B), see Bailey v. United States, 508
F.3d 736, 738 (5th Cir. 2007); Clymore v. United States, 415
F.3d 1113, 1114-15 (10th Cir. 2005); United States v. Martinez,
241 F.3d 1329, 1330 (11th Cir. 2001); United States v. Torres
Gonzalez, 240 F.3d 14, 15 (1st Cir. 2001); United States v.
Manelli, 667 F.2d 695, 697 (8th Cir. 1981), but none in
which an appellate court reviewed a magistrate judge’s
decision granting or denying a Rule 41(g) motion.
No matter; Stuart’s appeal is from the district judge’s
denial of the “replevin” pleading, to which we now
turn. As explained in our recent decision in United States
v. Norwood, No. 09-2507, 2010 WL 1541268, at *1 (7th Cir.
Apr. 20, 2010), a similar case, the only relief that can
be obtained under Rule 41(g) is a return of property. If,
however, in this case, as in Norwood, the owner of the
property also seeks monetary relief, and is proceeding
pro se, he should not be turned away merely because
Rule 41(g) does not authorize such relief—especially
when the relief is requested in a separate pleading (not
labeled a motion), and when in addition, unlike the
situation in Norwood, the claimant pays the full fee for
filing a civil complaint and arranges for service of the
complaint on the defendant. The pleading was indeed
“equivalent” to Stuart’s Rule 41(g) motion in the sense
that both claims were founded on the identical seizure
of his property. But the denial of the Rule 41(g) motion
4 No. 09-3857
could not be given res judicata effect in the “replevin”
action; Stuart could not have sought monetary relief
under Rule 41(g) and therefore cannot be faulted for
seeking it in a different action.
In this case, more clearly than in Norwood, the pro se’s
pleading—the misnamed replevin action—tracks (with-
out mentioning) Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), which
authorizes a federal common law action for damages
against federal agents who violate the Fourth Amend-
ment. See also Groh v. Ramirez, 540 U.S. 551 (2004); Saffell
v. Crews, 183 F.3d 655 (7th Cir. 1999); Michalik v. Hermann,
422 F.3d 252 (5th Cir. 2005). Stuart’s pleading sought
return of the property, or restitution if Rech no longer
has it, as relief additional to damages; but the implied
right of action authorized by Bivens is not affected by
the particular relief sought. Bunn v. Conley, 309 F.3d 1002,
1009 (7th Cir. 2002); see also Farmer v. Brennan, 511 U.S.
825, 850-51 (1994); Ross v. Meese, 818 F.2d 1132, 1134-35
(4th Cir. 1987).
The government has a legitimate concern with the
potential of a Bivens suit to disrupt a criminal proceeding
against the plaintiff in that suit. But that concern can be
accommodated by asking the court to stay the suit.
Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Evans v. Poskon,
No. 09-3140, 2010 WL 1507831, at *1 (7th Cir. Apr. 16, 2010).
Stuart’s pleading was properly denied, but not on the
district judge’s ground; it was a bona fide civil com-
plaint, not a Rule 41(g) motion. But it had no possible
merit. The only ground on which it challenged the
search was that the federal government has jurisdiction
No. 09-3857 5
only in federal enclaves (such as the District of Columbia,
a federal building, or a military base), and the premises
searched by Agent Rech are not a federal enclave.
Stuart’s theory is a variant of a standard tax-protester
theory, denying the federal government’s authority over
activity that occurs on land within states that is not
federal land. We have called this theory “frivolous
squared.” United States v. Cooper, 170 F.3d 691, 691 (7th Cir.
1999); see also United States v. Sloan, 939 F.2d 499, 500-01
(7th Cir. 1991). The “replevin” pleading, with its Bivens
claim, was rightly denied.
A FFIRMED.
5-5-10