Levitt v. F.B.I., 99 CIV. 0584(LAK).
| Decision Date | 08 October 1999 |
| Docket Number | No. 99 CIV. 0584(LAK).,99 CIV. 0584(LAK). |
| Citation | 70 F.Supp.2d 346 |
| Parties | James R. LEVITT, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Stephen W. Edwards, for Plaintiff.
Heidi A. Wendel, Assistant United States Attorney, Mary Jo White, United States Attorney, for Defendants Federal Bureau of Investigation and Mary Jo White.
Allan Young, Porzio, Bromberg & Newman, P.C., for Defendant Samuel W. Eden.
Plaintiff James R. Levitt claims to be the owner of a Henry Moore sculpture which was seized by the government in connection with a criminal matter and remains in its possession. He commenced this action against the Federal Bureau of Investigation ("FBI"), the United States Attorney for this district in her official capacity, and one Samuel W. Eden. The first claim for relief seeks a declaration that Levitt is the rightful owner of the sculpture and judgment directing that it be turned over to him. The second purportedly alleges conversion of the sculpture by the government and seeks an order directing the FBI and the United States Attorney to turn the sculpture over to him or, in the alternative, damages. The third, brought on the theory of replevin, also demands judgment against the FBI and the United States Attorney for possession of the sculpture.
Three motions now are before the Court: (1) Eden's motion to dismiss for lack of subject matter jurisdiction and lack of jurisdiction over his person, (2) the federal defendants' motion to dismiss for lack of subject matter jurisdiction, and (3) Levitt's motion for leave to amend to add additional legal theories on which he claims that the Court has subject matter jurisdiction.
The complaint, which is quite brief, alleges that Levitt is the owner of a Henry Moore maquette statue entitled Seated Woman, which is said to be worth $40,000. In a manner unexplained in the complaint, the sculpture wrongfully came into the possession of one James J. Holmes, and Eden acquired it from Holmes. In 1997, the FBI and the United States Attorney seized the sculpture from Eden and hold it to this day, refusing Levitt's demands for possession.
The papers before the Court amplify these allegations and tell a slightly different tale. The government alleges that Levitt in 1996 gave the sculpture to an art dealer named Mangel who in turn gave it to Holmes. Holmes, a New York gallery operator who was engaged in fraudulent activities and who this year pleaded guilty in this Court to mail and wire fraud,1 sold it to a co-owner of Atlanta Art Gallery who in turn sold it to Eden. Eden ultimately turned the sculpture over to the FBI.
Levitt commenced this action in January 1999. The government initially filed a counterclaim for interpleader, disclaiming any ownership interest in the sculpture and requesting that the Court determine the respective interests of Levitt and Eden. After concluding, however, that venue over the interpleader claim was improper in this district, the government withdrew its counterclaim, although it has informed the Court that it intends to file an action for interpleader in an appropriate district. Levitt, for his part, has withdrawn his demand for damages against the FBI and the United States Attorney.
The complaint alleges that the Court has subject matter jurisdiction because "the matter involves the United States government and agents, agencies thereof, as well as parties who are residents of different states with the amount in controversy inclusive of interest, costs and ongoing damages in exceeding [sic] $75,000."2 In response to defendants' challenge to the existence of subject matter jurisdiction, Levitt has thrown up a confusing array of arguments, some in his memoranda and some in his motion for leave to amend the complaint. At this point, he appears to allege the existence of subject matter jurisdiction on the basis of (1) the alleged presence of a federal question,3 (2) the presence of the United States as a party,4 (3) diversity of citizenship,5 (4) equitable jurisdiction,6 and (5) the Administrative Procedure Act.7 In the interests of resolving the issue with a minimum of procedural intricacy, the Court treats all of his contentions, wherever they appear, as having been asserted in the complaint.8
The complaint does not assert federal question jurisdiction at all.9 Plaintiff now contends, however, that the FBI, the U.S. Attorney, and the United States10 are retaining property that belongs to him in violation of the Fifth Amendment.11
The federal question statute12 grants federal district courts original jurisdiction over all civil actions arising under the Constitution. Osborn v. Bank of United States13 and its progeny teach that an action arises under the Constitution when a "title or right ... may be defeated by one construction of the constitution ... and sustained by the opposite construction ...."14 Levitt's claim, therefore, "arises under" the Fifth Amendment because a construction of that provision favorable to him would result in his having the right to possession of the statue, whereas an adverse construction would produce the opposite result. In consequence, Levitt's claim that the FBI and the U.S. Attorney, acting on behalf of the United States, are depriving him of property in violation of his Fifth Amendment rights comes within the federal question statute.
The United States enjoys sovereign immunity and may not be sued without its consent.15 Actions against federal officers and agencies based on conduct undertaken on behalf of the government are subject to the same principle.16 Hence:
17
Thus, the Court lacks jurisdiction over Levitt's claim against the government absent a waiver of immunity notwithstanding that it arises under the Constitution.
As plaintiff asserts,18 the Administrative Procedure Act (the "APA") waives sovereign immunity with respect to legally sufficient claims for equitable relief as to which federal question subject matter jurisdiction exists where no "other statute that grants consent to suit expressly or impliedly forbids the relief which is sought."19 The government, however, contends that Levitt's ability to assert his claim in the interpleader action that the government intends to commence takes his case outside the APA's waiver of sovereign immunity.
To begin with, the government's argument is inconsistent with the language of the statute. The APA's waiver applies, insofar as is relevant here, unless another "statute that grants consent to suit expressly or impliedly forbids the relief which is sought."20 It is questionable, however, whether the statute that authorizes the government (as well as others) to commence an interpleader action in a district court21 consents to suit against the United States, and it certainly does not expressly or impliedly forbid the relief that plaintiff seeks here.
The principal case relied upon by the government does not support its position. The parenthetical comment in a footnote in Boero v. Drug Enforcement Administration22 to the effect that the APA permits review of certain agency action "for which there is no other remedy in a court" was no more than a shorthand reference to Section 702 and fell far short of a holding that sovereign immunity is waived only if there is no other conceivable remedy in any court.
The government points also to dicta in Infante v. Drug Enforcement Administration,23 which stated in passing that 24 This Court, however, respectfully disagrees.
The provision of Section 704 to which the Infante court referred long antedates the limited waiver of sovereign immunity contained in Section 702, as amended in 1976. There is no suggestion in the latter statute that Congress intended to confine the waiver of immunity by reference to Section 704. To the contrary, Section 702 explicitly waived sovereign immunity while at the same time preserving "other limitations on judicial review [and] the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground."25 In other words, Congress waived the government's immunity from suit, although it preserved whatever defense or objection to relief the government may have by virtue of Section 704.26 The question whether Levitt's ability to assert his claim by defending any interpleader action the government may bring thus is relevant to whether he may prevail in this action, but not to the Court's power to entertain it.27 In consequence, the Court finds that the APA waives sovereign immunity against Levitt's equitable claim against the United States, the FBI, and the U.S. Attorney.28
The question remains whether subject matter jurisdiction exists over the claim against Eden. Once a district court has original federal question jurisdiction over a claim, Section 1367 of the Judicial Code29 grants supplemental jurisdiction over all claims that are so related to the action as to form part of the same case or controversy. In this case, Eden's competing claim to the statue is so related to Levitt's claim against the government that it forms part of the same case or controversy. The government cannot return the statue to Levitt without rejecting Eden's...
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