In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2507
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY W. N ORWOOD,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-30041–001—Jeanne E. Scott, Judge.
S UBMITTED M ARCH 17, 2010—D ECIDED A PRIL 20, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. When the defendant, Larry
Norwood, was arrested on April 24, 2006, state and
federal law enforcement officers took a number of items
of personal property from his possession and made a list
of them. The list included a Rolex watch, a bracelet, rings,
and lighters. (The government does not argue that the
items were related to his drug offense.) At the same
time, the officers seized the truck he was driving, and
the next day they delivered both the truck, and two bags
2 No. 09-2507
described as containing personal property of his, to a
trucking company for safekeeping. But the contents of
the bags were not itemized in the delivery document.
When Norwood later asked the company to return his
personal property, he was met with a denial that the
company had any of it. This was in the midst of the
criminal proceeding against him (he had been indicted in
May 2006, the month following his arrest), and he com-
plained about his missing property to the district judge
in a letter the judge received on December 14, 2006. The
judge sent copies of the letter to Norwood’s criminal
lawyer, directing him to determine what steps should
be taken to address Norwood’s concerns about his prop-
erty. It’s unclear what if anything the lawyer did in re-
sponse to this direction; he never submitted anything
to the court.
On May 17, 2007, shortly after pleading guilty but before
being sentenced, Norwood moved the district court to
order the government to return his missing property.
Rule 41(g) of the Federal Rules of Criminal Procedure
authorizes the judge presiding in a criminal case to order
the government to return property of the defendant that
is in its possession if it has no reason to continue holding
the property. (The Rule 41(g) proceeding may be main-
tained as an ancillary proceeding in the district court
even after the criminal proceeding ends. Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003), and cases cited
there; see also United States v. White, 582 F.3d 787, 806 n. 3
(7th Cir. 2009).) The government filed a written response
to Norwood’s motion two weeks later, stating that it had
No. 09-2507 3
inquired of the Drug Enforcement Administration and
the Illinois State Police and neither agency had Nor-
wood’s property.
At a hearing on July 26, the judge authorized Norwood
to proceed pro se for the remainder of his case (though
he hadn’t yet been sentenced), and discharged his law-
yer. The judge also directed the government to
inquire further into the whereabouts of Norwood’s prop-
erty. At his sentencing hearing, on August 13, the gov-
ernment reported that its further investigation suggested
that the trucking company might have the property. The
judge told Norwood she couldn’t help him recover it
if it was no longer in the government’s possession. She
suggested he sue the state police in the Illinois court of
claims.
On November 21, 2008, while his appeal (later dismissed)
from the criminal judgment was pending, Norwood filed
a motion in the district court seeking restitution from
the government of the value of the missing property,
which he claimed to be $9,995. The district judge denied
the motion on May 8, 2009, on the ground that Rule 41(g)
does not authorize monetary relief. (That is the order
from which the present appeal has been taken.) She was
right about that. E.g., Okoro v. Callaghan, supra, 324 F.3d
at 491; Adeleke v. United States, 355 F.3d 144, 151 (2d
Cir. 2004); United States v. Hall, 269 F.3d 940, 943 (8th Cir.
2001). The rule doesn’t mention monetary relief; and it
would be odd for a court in a criminal proceeding to be
authorized to award damages to the defendant as a
remedy for an irregularity committed by law enforcement
4 No. 09-2507
officers—especially to award damages against the govern-
ment, in the teeth of the long line of cases which hold
that waivers of federal sovereign immunity are not to be
lightly presumed, e.g., McMahon v. United States, 342 U.S.
25, 27 (1951), though it is unclear why this should be
so; “the Supreme Court has given no rationale for the
creation of [this] clear-statement rule.” Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3654, p. 336 (3d ed. 1998); see also
United States v. Nordic Village, Inc., 503 U.S. 30, 42-44 (1992)
(dissenting opinion).
Norwood’s motion for restitution did not mention, and
in fact was unrelated to, Rule 41(g), as it sought monetary
relief rather than the return, no longer possible, of his
property by the government. The motion did not
indicate a ground for the relief sought. The govern-
ment responded on November 26, arguing that the court
couldn’t award damages in a criminal case and, even if
it could, Norwood had no claim under the Federal Tort
Claims Act. He replied on May 7, 2009, that he had a
good claim under both the tort claims act and the Tucker
Act. But he muddied the waters by arguing that the
court’s jurisdiction over his Rule 41(g) motion had not
ended when the criminal proceeding had ended—which
was true, but irrelevant, because he was no longer
seeking the return of the property. The next day the
district judge denied the motion for restitution on the
ground that the court could not award damages in a crim-
inal case. She did not mention Norwood’s tort claims act
or Tucker Act arguments. He renews them in this court.
No. 09-2507 5
The tort claims act authorizes suits against the United
States for damages for “loss of property . . . caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment.” 28 U.S.C. § 1346(b)(1). There is
an exception, however, for the “detention of any . . .
property by any . . . law enforcement officer.” 28 U.S.C.
§ 2680(c); see Kosak v. United States, 465 U.S. 848 (1984).
(There are exceptions to the exception, id., §§ 2680(c)(1)-(4),
but they are not germane to this case.) Property seized
by law enforcement officers and transferred to a third
party is deemed still “detained” by the officers. Parrott
v. United States, 536 F.3d 629, 636 (7th Cir. 2008); Hatten
v. White, 275 F.3d 1208, 1210 (10th Cir. 2002); Schlaebitz
v. U.S. Dept. of Justice, 924 F.2d 193, 194 (11th Cir. 1991)
(per curiam). So Norwood’s claim under the tort claims
act is barred—and for the further reason that the
act requires exhaustion of administrative remedies,
28 U.S.C. § 2675(a); Osborn v. Haley, 549 U.S. 225, 234
(2007); Palay v. United States, 349 F.3d 418, 425 (7th
Cir. 2003), which, as far as we’re able to determine,
Norwood has not attempted.
The provision of the Tucker Act that he invokes autho-
rizes federal district courts to entertain claims against
the United States for up to $10,000 that are founded on
the Constitution or a federal statute or regulation. 28
U.S.C. § 1346(a)(2). Apparently mindful of the statutory
ceiling on the amount in controversy, Norwood is
asking for $5 less than $10,000. If his claim exceeded
$10,000, he would have to proceed in the Claims Court. 28
U.S.C. § 1491(a)(1); see, e.g., Talley v. U.S. Dep’t of Agricul-
ture, 595 F.3d 754, 758 (7th Cir. 2010).
6 No. 09-2507
Norwood claims to have been deprived of his property
without due process of law. But the Supreme Court has
held that the Tucker Act is not a general waiver of sover-
eign immunity, as it might appear to be; the plaintiff
must be able to point to a constitutional, statutory, or
regulatory provision that can “fairly be interpreted as
mandating compensation.” United States v. Mitchell, 463
U.S. 206, 217 (1983) (quoting earlier cases); see also United
States v. Testan, 424 U.S. 392, 400-01 (1976); Willis v. United
States, 787 F.2d 1089, 1092 n. 3 (7th Cir. 1986); Blueport Co.
v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008). The
standard example is the Fifth Amendment’s takings
clause, which in so many words requires the government
to award “just compensation” when it takes private
property for a public use. See, e.g., Preseault v. ICC, 494
U.S. 1, 11-12 (1990); Rose Acre Farms, Inc. v. Madigan, 956
F.2d 670, 673 (7th Cir. 1992). “By virtue of the express
constitutional command for payment of just compensa-
tion, takings claims under the Fifth Amendment have
become one of the classic categories of cases under the
Tucker Act.” Gregory C. Sisk, Litigation With the Federal
Government § 4.09(c), p. 330 (4th ed. 2006).
Some cases hold that a Tucker Act suit can’t be based on
a violation of the due process clause because that clause,
unlike the takings clause, doesn’t say that victims of such
violations must be compensated. Martinez v. Bureau of
Prisons, 444 F.3d 620, 622-23 (D.C. Cir. 2006) (per curiam);
Rothe Development Corp. v. U.S. Dep’t of Defense, 194 F.3d
622, 626 n. 6 (5th Cir. 1999). These cases produce a
curious remedial asymmetry between the two clauses. The
only reason the cases give for the asymmetry—and, as
No. 09-2507 7
we’ve noted, it’s a conclusion rather than a reason—is
that waivers of federal sovereign immunity are inter-
preted narrowly. Duarte v. United States, 532 F.2d 850, 852
(2d Cir. 1976). But we need to explain why we called
the remedial asymmetry “curious.”
The takings clause allows (more precisely, does not
forbid) the government to take people’s property for a
public use, provided that the government pays “just
compensation,” defined as fair market value. United
States v. Miller, 317 U.S. 369, 373-74 (1943); Shaikh v. City
of Chicago, 341 F.3d 627, 632 (7th Cir. 2003). So defined,
just compensation is less than full compensation (what
is called “common law compensation”). Full compensa-
tion will often exceed fair market value—many people
would not sell their home for its fair market value, if
only because of moving expenses. But while acknowl-
edging that fair market value is not always full compensa-
tion, the Supreme Court in Kimball Laundry Co. v. United
States, 338 U.S. 1 (1949), blunted the point by saying that
the shortfall “is properly treated as part of the burden of
common citizenship”—which again is a conclusion
rather than a reason—but in a more practical vein re-
marked the difficulty of determining nonmarket values
by the methods of litigation. Id. at 5-6.
The fact that “just compensation” tends systematically
to undercompensate the owners of property taken by
eminent domain underscores the fact that such a taking
is not a wrongful act. “[T]he takings clause does not
forbid takings; it requires compensation for takings.” Rose
Acre Farms, Inc. v. Madigan, supra, 956 F.2d at 673. (Just
8 No. 09-2507
as buying a toaster is not a wrongful act but failing to
pay for it is.) In contrast, the due process clause
absolutely forbids a deprivation of property without due
process of law. Such a deprivation is a wrongful act. That
is why it is forbidden rather than merely priced. It
seems perverse that the government should be able to
flout due process—depriving a person of his property
with impunity (at least if the deprivation is done by
law enforcement officers) and without paying any com-
pensation, by hiding, selling, or destroying it—merely
because the natural recourse against the government
for such misconduct—a suit for restitution or for dam-
ages—is not expressly authorized in the Constitution,
a statute, or a regulation. Even the takings clause does not
expressly authorize a suit for just compensation, yet
it has been held to authorize such suits nonetheless.
But some of our cases, contrary to the Martinez and
Rothe cases that we cited earlier, suggest that in the case
of a governmental taking that is not for a public use, the
property owner may be able to obtain full common law
damages—perhaps even under the takings clause, as
suggested in Lucien v. Johnson, 61 F.3d 573, 576 (7th Cir.
1995); Schroeder v. City of Chicago, 927 F.2d 957, 961 (7th
Cir. 1991), and Coniston Corp. v. Village of Hoffman Estates,
844 F.2d 461, 464-65 (7th Cir. 1988), viewed as an
absolute bar to such a taking. And neither the Federal
Tort Claims Act nor the Tucker Act exhausts Norwood’s
potential (but we stress “potential”) remedies. One possi-
bility might be a claim against the federal officers who
seized his property, rather than against the government
itself—Bivens v. Six Unknown Named Agents of Federal
No. 09-2507 9
Bureau of Narcotics, 403 U.S. 388 (1971), allowed such a
suit as a remedy for an unconstitutional search—and
against the state officers under 42 U.S.C. § 1983. But
Washington v. Davis, 426 U.S. 229, 239-41 (1976), holds
that only intentional conduct violates the Constitution,
see also Daniels v. Williams, 474 U.S. 327 (1986); Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256,
274 (1979), and if that limitation is applicable here—that
is, if the officers accidentally (even if negligently) lost,
rather than stole or wantonly destroyed, Norwood’s
property—it bars a Bivens claim, see Polanco v. DEA, 158
F.3d 647, 650 (2d Cir. 1998); see also Denson v. United States,
574 F.3d 1318, 1336 (11th Cir. 2009), as well as a claim
against the state officers under 42 U.S.C. § 1983. And a
takings claim as well, since “accidental injuries are not
takings.” Lucien v. Johnson, supra, 61 F.3d at 576.
How a Bivens claim would fare in this case cannot yet be
determined; the record does not reveal what role the
arresting officers (or other officers who may have been
involved) played in the loss of Norwood’s property. It is
unclear whether they stole it, or lost it, or indeed just
deposited it with the trucking company for safekeeping.
If they lost it accidentally, or deposited it with the
trucking company, there would be no denial of due
process. But while Norwood’s opening brief states that
“the government has lost his personal property”—which
might seem to scotch any claim of deliberate wrong-
doing—actually the statement is ambiguous. It could just
mean that the government lost Norwood’s property
because its agents had stolen it; one of his filings in the
district court states that the property was “lost or stolen
10 No. 09-2507
by governmental officials” (emphasis added). We do not
yet know which.
A Bivens suit may fail, regardless of the nature of the
wrongdoing, because of the exclusion (with irrelevant
exceptions) from the Federal Tort Claims Act of govern-
ment liability for a property loss caused by law enforce-
ment officers. The Supreme Court has become ex-
tremely chary of recognizing a Bivens claim where
either there is an adequate alternative remedy, or, though
there is not (and there is not under the Federal Tort
Claims Act, as we have seen), recognition of such a right
of action would disrupt a federal program or have other
untoward consequence. See, e.g., Wilkie v. Robbins, 551
U.S. 537 (2007); Correctional Services Corp. v. Malesko, 534
U.S. 61 (2001); Schweiker v. Chilicky, 487 U.S. 412 (1988),
and other cases cited in Arar v. Ashcroft, 585 F.3d 559, 571-
72 (2d Cir. 2009) (en banc). In fact the Court has not
recognized such a right in a new class of cases since
Carlson v. Green, 446 U.S. 14 (1980), thirty years ago.
The Supreme Court’s reluctance to recognize new
Bivens claims is related to its general retreat (which began
in Cort v. Ash, 422 U.S. 66 (1975), just a few years after
Bivens) from recognizing implied rights of action. (Bivens
had implied a right to sue for damages under the Fourth
Amendment, which doesn’t mention any such right.)
Allowing damages suits to be brought against federal
law enforcement officers accused of having improperly
disposed of a criminal suspect’s property might be
thought an end run around the statutory exclusion of
such claims when filed against the government itself.
No. 09-2507 11
And we’ll see that there may be alternative remedies to
a Bivens claim in a case such as this.
The Supreme Court in the Malesko case did suggest that
the recognition of a right to sue under Bivens might be
appropriate “to provide an otherwise nonexistent cause
of action against individual officers alleged to have acted
unconstitutionally.” Correctional Services Corp. v. Malesko,
supra, 534 U.S. at 70 (emphasis in original). So maybe
there is a ray of hope for Norwood to succeed on a
Bivens claim. But the ray dims when we note that 31
U.S.C. § 3724(a) authorizes the Attorney General of the
United States to “settle, for not more than $50,000 in any
one case, a claim for personal injury, death, or damage
to, or loss of, privately owned property, caused by an
investigative or law enforcement officer . . . employed
by the Department of Justice acting within the scope
of employment. . . .” This fits Norwood’s case to a T. But
unfortunately for him “a claim may be allowed only if it
is presented to the Attorney General within one year
after it accrues,” id., and the time is now up; for his
claim would have accrued no later than August 13,
2007, when, at his sentencing hearing, the government
informed the court (and him) that it didn’t have his
property. His claim may have accrued even earlier, on
May 17, 2007, when he first moved for the return of his
property; for the basis of the motion presumably was a
belief that the property was being wrongfully with-
held from him.
We note the absence of judicial review of the Attorney
General’s decison on whether or on what terms to
12 No. 09-2507
settle a claim: section 3724(b) provides that “a claim
may be paid under this section only if the claimant
accepts the amount of the settlement in complete satis-
faction of the claim against the Government.” In other
words, victims of torts by federal law enforcement
agents are remitted to an administrative remedy that is
final. Cf. 31 U.S.C. § 3721(k); Oriakhi v. United States, 2009
WL 1066109, at *1 (D.N.J. Apr. 20, 2009). If that remedy
is adequate despite the absence of judicial review, this
would probably scotch any Bivens remedy.
A final obstacle to all of Norwood’s potential remedies,
but not necessarily an insuperable one under the
peculiar circumstances of this case, is that a motion in a
criminal case is not a proper method of commencing a
civil suit. He was proceeding pro se, and “when a
district court conducting a Rule 41(e) [now 41(g)] pro-
ceeding learns that the government no longer possesses
property that is the subject of the motion to return, the
court should grant the movant (particularly a movant
proceeding pro se . . .) an opportunity to assert an alterna-
tive claim for money damages.” United States v. Hall,
supra, 269 F.3d at 943. “[A] pro se Rule 41(g) motion should
be liberally construed to allow the assertion of altern-
ative claims.” United States v. Albinson, 356 F.3d 278, 284
n. 9 (3d Cir. 2004); see also Peña v. United States, 157
F.3d 984, 987 (5th Cir. 1998); cf. Jackson v. United States,
526 F.3d 394, 398 (8th Cir. 2008).
Norwood asked for monetary relief in a separate
motion after his Rule 41(g) motion was denied. He would
have to pay a filing fee in order to convert the motion
No. 09-2507 13
into a proper civil suit, United States v. Howell, 354 F.3d
693, 695 (7th Cir. 2004) and if he wanted to make a
Bivens claim he would have to join the officers in their
individual capacities as defendants and serve them. But
the Hall, Albinson, and Peña decisions that we’ve cited
would (and Jackson might) permit such a conversion
when the movant was pro se; and we are not aware of
any contrary authority.
This is not to say, and these decisions do not say, that a
district judge must always, or indeed usually, convert a
motion for civil relief in a criminal case into a civil com-
plaint. The denial of relief under Rule 41(g) is not with
prejudice against the movant’s filing a civil suit for
the value of property taken from him and then lost.
Indeed the denial clears the deck for his filing a civil
suit and is normally preferable to contorting a motion
filed under the criminal rules into a civil pleading. The
wrinkle here is the statute of limitations. Not the statute of
limitations for filing a claim with the Attorney General
under 31 U.S.C. § 3724. That statute has expired for good,
for Norwood never filed anything with the Attorney
General.
But whether the two-year statute of limitations for
filing Bivens and section 1983 claims, Delgado-Brunet v.
Clark, 93 F.3d 339, 342 (7th Cir. 1996), has expired depends
on whether the motion for restitution can be deemed
the commencement of a civil suit. For if so, a Bivens and
a section 1983 claim might relate back to the date on
which the motion was filed, which although more than
two years after the seizure of his property was less than
14 No. 09-2507
two years after his claim accrued under the discovery
rule that governs the accrual of claims in federal suits. The
discovery rule starts the statute of limitations running
only when the plaintiff learns that he’s been injured, and
by whom. United States v. Kubrick, 444 U.S. 111 (1979);
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th
Cir. 1990). That was August 13, 2007, at the latest, as we
said, and Norwood filed his motion for restitution in
November of the following year. But it is now much too
late for him to file a Bivens or section 1983 suit that would
not be barred by the two-year statute of limitations, and
so if the denial of his motion for restitution is affirmed
such claims are barred. This is a harsh consequence for
a pro se, and would be contrary to the Hall, Jackson,
Albinson, and Peña decisions.
If the motion for restitution is treated as a civil com-
plaint, it would have to be amended in order to state
claims under Bivens or section 1983. An amendment to a
complaint relates back to the date of the filing of the
original complaint if (so far as bears on this case), though
the amendment adds or changes a party, the new party
should have known that had it not been for a mistake,
he would have been named in the original complaint.
Fed. R. Civ. P. 15(c)(1)(C)(ii). This is to be distinguished
from a case in which rather than naming the wrong
party, the plaintiff names a fictitious party, or no party,
as defendant. King v. One Unknown Federal Correctional
Officer, 201 F.3d 910, 914 (7th Cir. 2000). One can’t file a
suit against a nonexistent party, although one may be
able to invoke a tolling rule to delay suing if it is not
possible even with the exercise of due diligence to
identify the injurer.
No. 09-2507 15
The condition in Rule 15(c)(1)(C)(ii) for relation back
appears to be satisfied. In its May 31, 2007, response to
Norwood’s original motion, the government indicated
that it had inquired of both the federal and state
officers involved in the arrest of Norwood and the
seizure of his property about its whereabouts. That was
notice to them of his claim and if any of these agents had
stolen his property, they knew that Norwood had made
an excusable mistake in seeking to hold the govern-
ment responsible for the loss because he didn’t realize
that the property was no longer in the government’s
possession.
In Peña—in this respect strikingly like the present
case—the Fifth Circuit held that although the district
court had properly denied the plaintiff’s Rule 41(e) [now
41(g)] motion because his property had been destroyed,
he should have been given the opportunity to amend his
pleadings to add a Bivens claim. The court said that
although the statute of limitations for bringing a Bivens
suit had expired, an amended pleading would relate
back to his original pleading, that is, to his Rule 41(e)
motion. Hall and Albinson are similar. The same result
should obtain in this case. The case must therefore
be remanded to enable Norwood to amend his complaint.
If he decides to do that, he may wish to add a state-law
claim against the trucking company for conversion as a
supplemental claim in his federal suit. Ruiz v. Wolf, 621
N.E.2d 67, 69 (Ill. App. 1993); see 28 U.S.C. § 1367. There
would be no need for relation back because the statute
of limitations under Illinois law for a suit for conversion
16 No. 09-2507
is five years. 735 ILCS 5/13-205; Bontkowski v. Smith, 305
F.3d 757, 763 (7th Cir. 2002). (He could instead file such
a suit in an Illinois state court.)
He might also add a claim against the federal officers
for conversion under Illinois state law, if he can prove
that they stole his property. It is true that the Westfall
Act (Federal Employees Liability Reform and Tort Com-
pensation Act of 1988, 28 U.S.C. § 2679) provides for
the substitution of the United States as a defendant in
any suit against a federal employee which charges a
common law tort committed within the scope of his
employment. 29 U.S.C. § 2679(d)(1). Were Norwood to
charge that, it would convert his suit against the officers
to one against the United States under the Federal Tort
Claims Act. That would thwart his suit if the officers
were acting within the scope of their federal employ-
ment—but they were not if they actually stole his prop-
erty. The Westfall Act would therefore not apply, and they
would be liable for conversion under state law.
Whether Norwood can prevail on any legal theory is
uncertain, especially with his most straightforward
remedy—the filing of a claim with the Attorney General
under 31 U.S.C. § 3724—shut off. But he is entitled to
an opportunity to develop the facts more fully—to try to
discover who actually was responsible for the loss of
his property, and how it was lost—without encountering
the bar of the statute of limitations. Depending on what
such further inquiry reveals, he may have a remedy
against that person or persons, and he preserved the
right to seek such a (civil) remedy, without encountering
No. 09-2507 17
the bar of the statute of limitations (except with respect
to filing a claim with the Attorney General), by the filing
of his motion for restitution in his criminal proceeding.
Unlike many of the plaintiffs in prisoner civil rights
suits, Norwood may well have suffered a harm for which
the law should provide a remedy. A report by the state
police lists the personal property that was taken from
Norwood’s possession when he was arrested, and so
there is little doubt that it was indeed in his possession
then; and while a number of months after his arrest he
wrote the trucking company asking it to turn over his
property to a friend of his named Sparks, he contends, as
yet without contradiction, that the company did not do
so. The merits of his claim that his property has been
lost or stolen cannot be determined without further
proceedings. His pro se status has put him at a serious
disadvantage in dealing with a complex body of law (as
indicated by the length of this opinion); yet given the
modest size of his claim, it is hardly likely that he
could have found a lawyer to represent him.
We vacate the decision of the district court and return
the case to that court for further proceedings consistent
with this opinion. The district judge may want to con-
sider whether to request a member of the bar to represent
Norwood in the further proceedings.
V ACATED AND R EMANDED.
4-20-10