United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 5, 2007
Charles R. Fulbruge III
Clerk
No. 05-20731
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RODRIGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:89-CR-229-3
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Luis Rodriguez, federal prisoner # 00582-424,
challenges the district court’s dismissal of his motion for
return of property, filed pursuant to FED. R. CRIM. P. 41(g), as
time-barred by the six-year statute of limitations set forth in
28 U.S.C. § 2401(a). Although Rodriguez’s motion was filed
pursuant to Rule 41(g), the criminal proceeding against Rodriguez
had concluded when he brought this action. Accordingly, we treat
the Rule 41(g) motion as a § 1331 action, seeking the return of
property, and treat the district court’s denial of that motion as
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-20731
-2-
a grant of summary judgment in favor of the Government. See
Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000). We
review de novo the district court’s determination that the action
was barred by limitations. Id.
The six-year statute of limitations in § 2401(a) governs
civil actions for return of property. United States v. Wright,
361 F.3d 288, 290 (5th Cir. 2004). Under federal law, a cause of
action accrues “when the plaintiff is in possession of the
‘critical facts that he has been hurt and who has inflicted the
injury.’” Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir.
1993)(citations omitted). Rodriguez does not dispute that he was
aware of the purported seizure of items from 895 Elizabeth
Street, San Benito, Texas, as of 1989 and also knew of the
purported seizure of items located in the safety deposit box as
of 1992. He necessarily would have been aware, as of 1989 and
1992, of the lack of notice that any forfeiture had been
initiated as to the property.** Rodriguez’s 2005 motion for
return of property was untimely. See Gartrell, 981 F.2d at 257;
see Polanco v. Drug Enforcement Administration, 158 F.3d 647, 654
(2d Cir. 1998) (holding that a cause of action for return of
property forfeited without sufficient notice accrued at the
earliest of the following: 1) at the close of the forfeiture
proceedings; or 2) if no forfeiture proceedings were conducted,
**
We observe that the record does not suggest that the
seized property at issue in this case was administratively
forfeited.
No. 05-20731
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at the end of the five-year limitations period for the Government
to bring a forfeiture action). Although equitable tolling
applies to § 2401(a)’s limitations period, Clymore, 217 F.3d at
374, we decline to apply it under the circumstances of this case
because the record does not reflect that Rodriguez exercised due
diligence. See Baldwin v. County Welcome Ctr. v. Brown, 466 U.S.
147, 151 (1984).
If the Government does not have the property, the only
relief possible for Rodriguez would be in the form of money
damages. See Armendariz-Mata v. U.S. Dep’t of Justice, DEA, 82
F.3d 679, 682 (5th Cir. 1996). Assuming, without deciding, that
Rodriguez had a cause of action under Bivens,*** any such action
is time-barred. See Pena v. United States, 157 F.3d 984, 987
(5th Cir. 1998) (observing that Pena’s motion for the return of
seized property presented the facts necessary for a Bivens
action); TEX. CIV. PRAC. & REM. CODE § 16.003(a) (providing
applicable two-year limitations period).
AFFIRMED.
***
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).