FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GALO ALEJANDRO ORDONEZ, No. 09-56533
Plaintiff-Appellant, D.C. No.
v. 2:07-CV-03751
UNITED STATES OF AMERICA, CBM
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted
April 13, 2012—Pasadena, California
Filed: May 29, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Janis L. Sammartino, District Judge.*
Opinion by Judge Sammartino
*The Honorable Janis L. Sammartino, District Judge for the U.S. Dis-
trict Court for the Southern District of California, sitting by designation.
5943
ORDONEZ v. UNITED STATES 5945
COUNSEL
Alex Davis (argued), Candace Carroll, Michael Devitt, Uni-
versity of San Diego Legal Clinics, San Diego, California, for
the plaintiff-appellant.
Jessica O. Cheh (argued), United States Attorney’s Office,
Los Angeles, California, for the defendant-appellee.
OPINION
J. SAMMARTINO, District Judge:
Following Plaintiff-Appellant Galo Alejandro Ordonez’s
July 29, 1994, conviction for drug possession with intent to
distribute, Ordonez sought the return of his property seized by
the government during his arrest pursuant to Federal Rule of
Criminal Procedure 41(g). Some of Ordonez’s belongings
were returned to his designated agent, but many were not
returned, having been inadvertently lost or destroyed.
Ordonez then sought equitable relief in the form of money
damages to compensate for the missing property. The district
5946 ORDONEZ v. UNITED STATES
court granted the government’s motion to dismiss, finding
that sovereign immunity barred Ordonez’s suit for money
damages against the government.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ordonez was arrested on January 15, 1993, and ultimately
convicted in the United States District Court for the Central
District of California of drug possession with intent to distrib-
ute. He currently is serving a 480-month sentence.
Several items of Ordonez’s personal property were seized
and inventoried during his 1993 arrest. Following his convic-
tion and sentencing, on June 11, 2007, Ordonez filed a pro se
motion for the return of his seized property pursuant to Fed-
eral Rule of Criminal Procedure 41(g). After initially failing
to respond, the government agreed to locate and return
Ordonez’s seized property. On September 27, 2007, some of
Ordonez’s belongings were returned to his designated agent.
The government filed a final accounting of the seized prop-
erty on June 18, 2008. The final accounting listed the items
that had already been returned to Ordonez’s designated agent
as well as a number of items “presumed to be lost or
destroyed.”
The government also attached as exhibits to the final
accounting two letters from FBI Assistant General Counsel
Stefania M. Porcelli, who was tasked with investigating the
status of Ordonez’s seized property. Ms. Porcelli explained
that Ordonez’s property was initially seized during his 1993
arrest in New Jersey, and was subsequently mailed to the
FBI’s Los Angeles Field Office where the criminal investiga-
tion was taking place. Following Ordonez’s conviction, the
FBI attempted to return his property, but Ordonez could not
ORDONEZ v. UNITED STATES 5947
receive the property while in prison, and the FBI was unable
to locate his wife in order to give her the items. The property
was apparently placed in storage. By the time Ordonez initi-
ated his first federal action for the return of his property in
1997, there was no clear inventory of his belongings, and the
government was unable to locate several items listed in the
original inventory forms.
Following this unsatisfactory final accounting, Ordonez,
still proceeding pro se, filed a motion for summary judgment,
which the district court construed as a request for equitable
money damages from the government. The government
moved to dismiss, and the district court granted the govern-
ment’s motion, reasoning that the court lacked jurisdiction to
award damages pursuant to Rule 41(g) because the govern-
ment did not waive its sovereign immunity. Ordonez timely
appealed.
STANDARD OF REVIEW
We review the district court’s interpretation of Rule 41(g)
de novo. United States v. Kaczynski, 416 F.3d 971, 974 (9th
Cir. 2005) (citing Ramsden v. United States, 2 F.3d 322, 324
(9th Cir. 1993)).
DISCUSSION
Federal Rule of Criminal Procedure 41(g)1 provides a
1
Rule 41(g) provides, in its entirety:
Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property’s return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.
Fed. R. Crim. P. 41(g). Rule 41 was amended and reorganized in 2002. As
part of the “general restyling” of the Criminal Rules, what was formerly
Rule 41(e) is now codified at 41(g), with minor stylistic changes. Fed. R.
Crim. P. 41 advisory committee’s note.
5948 ORDONEZ v. UNITED STATES
mechanism by which any person may seek to recover prop-
erty seized by federal agents. The Rule states that if a motion
to return property is granted, “the court must return the prop-
erty to the movant.” Fed. R. Crim. P. 41(g). But where, as
here, the subject property has been lost or destroyed, Rule
41(g) is silent as to what alternative relief, if any, the movant
may seek.
Because this Rule 41(g) action is necessarily directed
against the United States, see Okoro v. Callaghan, 324 F.3d
488, 491 (7th Cir. 2003), concerns of sovereign immunity
arise in fashioning any equitable relief. “It is axiomatic that
the United States may not be sued without its consent and that
the existence of consent is a prerequisite for jurisdiction.”
United States v. Mitchell, 463 U.S. 206, 212 (1983); accord
Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003).
[1] The federal government may waive its sovereign
immunity, but any waiver “must be unequivocally expressed
in statutory text . . . and will not be implied.” Lane v. Pena,
518 U.S. 187, 192 (1996) (citations omitted); accord FAA v.
Cooper, 566 U.S. ___, 132 S. Ct. 1441, 1448 (2012) (“We
have said on many occasions that a waiver of sovereign
immunity must be ‘unequivocally expressed’ in statutory
text.”). Unlike actions involving private parties, “where a
cause of action is authorized against the federal government,
the available remedies are not those that are ‘appropriate,’ but
only those for which sovereign immunity has been expressly
waived.” Lane, 518 U.S. at 197 (internal quotation marks
omitted); see also Dep’t of the Army v. Blue Fox, Inc., 525
U.S. 255, 263-65 (1999). Thus, to hold the government liable
for money damages, “the waiver of sovereign immunity must
extend unambiguously to such monetary claims.” Lane, 518
U.S. at 192 (citing United States v. Nordic Village, Inc., 503
U.S. 30, 34 (1992)). We apply traditional tools of statutory
construction to determine whether the scope of Congress’
waiver is “clearly discernable from the statutory text.” Coo-
per, 132 S. Ct. at 1448; see also Richlin Sec. Serv. Co. v.
ORDONEZ v. UNITED STATES 5949
Chertoff, 553 U.S. 571, 589 (2008). If it is, then we abide by
Congress’ instruction; if it is not, then we “construe any
ambiguities in the scope of a waiver in favor of the sover-
eign.” Cooper, 132 S. Ct. at 1448 (citing Lane, 518 U.S. at
192).
Eight other circuits considering the issue have held that
sovereign immunity bars an award of money damages against
the government on a Rule 41(g) motion where the property
cannot be returned.2
[2] We have yet to address directly the question whether
sovereign immunity bars an award of money damages in this
situation. The closest we have come to commenting was in
United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987).
There, Martinson was erroneously taken into custody on a
recalled warrant, and the police seized nine nineteenth-
2
Clymore v. United States, 415 F.3d 1113, 1120 (10th Cir. 2005) (“[T]o
the extent the government is no longer in possession of the property and
[the criminal defendant] seeks monetary relief, sovereign immunity bars
his claim.”); Adeleke v. United States, 355 F.3d 144, 147 (2d Cir. 2004)
(“[The criminal defendant’s] equitable claim for money damages should
have been dismissed for lack of subject matter jurisdiction because sover-
eign immunity bars a federal court from ordering the United States to
compensate for property that cannot be returned pursuant to Rule 41(g).”);
Okoro, 324 F.3d at 491 (7th Cir. 2003) (“No one supposes that Rule 41(g)
was intended to waive the sovereign immunity of the federal govern-
ment.”); United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001) (“Rule
41(e) contains no such waiver [of sovereign immunity], and we may not
use general equitable principles to fill the gap.”); United States v. Potes
Ramirez, 260 F.3d 1310, 1316 (11th Cir. 2001) (“[S]overeign immunity
protects the government from money damages sought under Rule 41(e).”);
United States v. Jones, 225 F.3d 468, 470 (4th Cir. 2000) (“Rule 41(e)
does not contain a waiver of sovereign immunity.”); United States v. Bein,
214 F.3d 408, 413 (3d Cir. 2000) (concluding that Rule 41(e) “does not
expressly provide for an award of monetary damages [and therefore] does
not waive sovereign immunity”); Pena v. United States, 157 F.3d 984, 986
(5th Cir. 1998) (“Rule 41(e) makes no provision for monetary damages,
and we will not read into the statute a waiver of the federal government’s
immunity from such damages.”).
5950 ORDONEZ v. UNITED STATES
century black powder Winchester rifles. Id. at 1365. After his
release from jail, Martinson filed a Rule 41(e) motion for the
return of his guns, which was ultimately denied. Id. at 1366.
Martinson appealed. While the appeal was pending, however,
the guns were destroyed pursuant to administrative forfeiture
proceedings. Id.
[3] Wary of the government’s misconduct, we retained
jurisdiction despite the government’s destruction of Martin-
son’s property:
When a citizen has invoked the jurisdiction of a
court by moving for return of his property, we do not
think that the government should be able to destroy
jurisdiction by its own conduct. The government
should not at one stroke be able to deprive the citizen
of a remedy and render powerless the court that
could grant the remedy.
Id. at 1368. Accordingly, we directed that upon remand,
“Martinson should be allowed to amend his motion to request
damages if he so desires.” Id. at 1370.
[4] In reaching this conclusion, Martinson did not address
directly the issue of sovereign immunity.3 And accordingly,
we are not now bound by Martinson in considering the sover-
eign immunity issue here. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 119 (1984) (“When questions of
jurisdiction have been passed on in prior decisions sub silen-
tio” a court is not bound “when a subsequent case finally
3
Alluding to sovereign immunity considerations, the Martinson court
remarked in a footnote discussing a district court case from another circuit
that although “the government had not consented explicitly to be sued and
. . . the equitable jurisdiction of the court was not based on express con-
gressional authorization . . . these concerns exist regardless of whether or
not damages are sought.” Martinson, 809 F.2d at 1368 n.2 (citing Mayo
v. United States, 425 F. Supp. 119, 122 (E.D. Ill. 1977)).
ORDONEZ v. UNITED STATES 5951
brings the jurisdictional issue” to the forefront).4 Beginning
with this clean slate, we agree with the eight other circuits that
have considered the issue, and conclude that Ordonez’s claim
is barred by sovereign immunity.
We cannot find an unequivocally expressed waiver of the
government’s sovereign immunity that extends unambigu-
ously to money damages in the text of Rule 41(g). The Rule
by its very terms provides only for the “return [of] the prop-
erty to the movant,” nothing more. Fed. R. Crim. P. 41(g).
There is no alternative provision for money damages, and
such a provision cannot be implied. Mitchell, 445 U.S. at 538.
The plain language of Rule 41(g) is “clear and unambiguous,”
Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir.
2000), and therefore our “judicial inquiry is at an end,” id. at
831; accord Cooper, 132 S. Ct. at 1448.
Indeed, in the past we have broadly held that there is “no
explicit waiver of sovereign immunity” under the Federal
Rules of Criminal Procedure. United States v. Woodley, 9
F.3d 774, 781 (9th Cir. 1993). There, interpreting Rule
16(d)(2), we determined that sovereign immunity barred the
imposition of monetary sanctions against the government.
Rule 16(d)(2) permits a court to “prescribe . . . just terms and
conditions” to remedy a violation of a discovery order. Fed.
R. Crim. P. 16(d)(2)(A).5 Despite this broad allowance to pre-
4
We note that Martinson has been cited for the proposition that sover-
eign immunity would not bar a Rule 41(g) action in the context of a claim
for reimbursement of monies paid pursuant to a wrongful conviction,
United States v. Hayes, 385 F.3d 1226, 1229 n.2 (9th Cir. 2004), and in
several unpublished Ninth Circuit decisions in which parties sought
money damages against the United States under Rule 41(g). Nevertheless,
Martinson did not confront the question of sovereign immunity head-on,
as we do now. To the extent Martinson has been read as holding that sov-
ereign immunity does not bar a claim for money damages under Rule
41(g), we now clarify that reading is incorrect.
5
Since the decision in Woodley, Rule 16 was amended “as part of the
general restyling” of the rules, with no substantive changes made to Rule
16(d)(2). Fed. R. Crim. P. 16 advisory committee’s note.
5952 ORDONEZ v. UNITED STATES
scribe any sanction that is “just,” because the Rule “provides
no independent authority for a monetary sanction, we
decline[d] to recognize a waiver of sovereign immunity . . . .”
Id. at 781 (distinguishing Federal Rules of Civil Procedure 11
and 37(b), which do “expressly provide for monetary sanc-
tions”). Similarly, Rule 41(g) provides no independent author-
ity for monetary relief, and we are therefore bound by our
own precedent to hold that an award of money damages
against the government under Rule 41(g) is barred by sover-
eign immunity.
[5] We recognize that there are many valid reasons why
one should in fairness be able to pursue a claim for money
damages against the government when it wrongfully loses,
destroys, or otherwise disposes of seized property. Applica-
tion of Rule 41(g)—as we are compelled to construe it—can
work an injustice to someone losing valuable goods, since
there may be no remedy to cure even a flagrant destruction of
those goods. See Hall, 269 F.3d at 943 (Rosenbaum, D.J.,
concurring). Unfortunately, however, these equitable
considerations—standing alone—cannot waive the govern-
ment’s immunity from suit. See United States v. N.Y. Rayon
Importing Co., 329 U.S. 654, 663 (1947); Clymore, 415 F.3d
at 1120. No matter how compelling the circumstances,
because Rule 41(g) contains no express and unequivocal
waiver of the government’s sovereign immunity, money dam-
ages are not a permitted form of relief. Thus, even when it
results in a wrong without a remedy, the federal courts are
without jurisdiction to award money damages against the gov-
ernment under Rule 41(g) until Congress tells us otherwise.
AFFIRMED.