Skip navigation
× You have 2 more free articles available this month. Subscribe today.

FBI Loses Prisoner’s Property but Sovereign Immunity Foils Recovery

On May 29, 2012, the Ninth Circuit Court of Appeals barred Galo Alejandro Ordonez from compensation after the FBI and the federal government acknowledged that property that had been previously seized from him and ordered returned was “presumed to be lost or destroyed.” The appellate court held the government had not waived its sovereign immunity, and therefore was immune from suit even for an admitted wrong.

Ordonez was arrested in January 1993 on a federal drug charge, and at that time “several items ... of personal property were seized and inventoried...,” according to the ruling. He was convicted and sentenced to 480 months in prison, then on June 11, 2007 he filed a pro se motion for the return of his property pursuant to Federal Rule of Criminal Procedure 41(g). According to the appellate court, “there was no clear inventory of his belongings, and the government was unable to locate several items listed in the original inventory items.”

Although Rule 41(g) gave Ordonez a cause of action, “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,” the Court of Appeals wrote, citing United States v. Mitchell, 463 U.S. 206, 212 (1983). Immunity from suit may be waived, but the waiver “must be unequivocally expressed in statutory text ... and will not be implied.”

Ordonez relied upon the case of United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987), in which the government destroyed property after the claimant had already filed suit, and the claimant was allowed to seek monetary damages. However, the Ninth Circuit distinguished Martinson because it did not directly reach the issue of sovereign immunity.

“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,” the appellate court stated. “Application 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.”

Regardless, the Ninth Circuit upheld the district court’s order of dismissal, noting that “No matter how compelling the circumstances ... Rule 41(g) contains no express and unequivocal waiver of the government’s sovereign immunity, [and] money damages are not a permitted form of relief,” even though this resulted in a “wrong without a remedy.” Eight other circuit courts have reached a similar conclusion. See: Ordonez v. United States, 680 F.3d 1135 (9th Cir. 2012).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Ordonez v. United States