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NOT FOR PUBLICATION FEB 12 2015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
2
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.
3