Arbelaez v. United States

94 Fed. Cl. 753, 2010 U.S. Claims LEXIS 720, 2010 WL 3705260
CourtUnited States Court of Federal Claims
DecidedSeptember 23, 2010
DocketNo. 09-505C
StatusPublished
Cited by37 cases

This text of 94 Fed. Cl. 753 (Arbelaez v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arbelaez v. United States, 94 Fed. Cl. 753, 2010 U.S. Claims LEXIS 720, 2010 WL 3705260 (uscfc 2010).

Opinion

ORDER & OPINION

DAMICH, Judge:

Plaintiff Omaira Arbelaez has filed a complaint, pro se, alleging several causes of action against the government: 1) “trover and conversion”; 2) “destruction”; 3) “unlawful interference with contracts”; 4) “unlawful retention”; and 5) “breach of duty.” 1 Compl. ¶¶ 9-10, 19 — 42. These claims stem from the seizure of certain property by the FBI in conjunction with the 1993 arrest of Ms. Arbe-laez’s husband, Alejandro Ordonez, on federal drug charges. Compl. Ex. 9; A13-14.2 Ms. Arbelaez has styled her complaint “as a third party seeking to recover an alleged interest in the unforfeited property.” Compl. 1.

On December 4, 2009, in lieu of an answer to the complaint, the government filed a motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment. Plaintiff filed her response on March 11, 2010, and the government filed its reply on March 29, 2010. On May 21, 2010, the court directed the parties to file supplemental briefs on the question of Plaintiffs standing to bring suit. Defendant’s brief was filed on July 1, 2010; Plaintiffs supplemental brief, after missing the first deadline, was filed on July 30, 2010. The government seeks dismissal on several grounds. First, it argues that Plaintiffs claims are barred by the statute of limitations. It also avers that Plaintiff has failed to join Mr. Ordonez, a necessary and indispensible party, pursuant to Rule 19 of the Rules of the Court of Federal Claims (“RCFC”), but further that, even if Mr. Or-donez were joined as a party, the Court would then lack jurisdiction under 28 U.S.C. § 1500 because Mr. Ordonez’s claims are the subject of a pending suit previously filed in United States District Court in California (currently on appeal to the United States Court of Appeals for the 9th Circuit). The government also argues that the court lacks subject matter jurisdiction over certain of Plaintiffs claims sounding in tort and, finally, that Plaintiffs breach of contract claim fails because she has not properly alleged a contract with the United States. See Def.’s Mot. to Dismiss passim. In addition, in response to the court’s order to the parties for supplemental briefing, the government urges dismissal for lack of standing. See Def.’s Resp. to the Court’s May 21, 2010 Questions (“Def.’s Suppl. Br.”) passim. For the reasons discussed herein, the government’s Motion to Dismiss is GRANTED.

I. Background3

A. Ordonez Arrest & Seizure of Property

On January 15, 1993, the FBI arrested Plaintiffs then-husband, Alejandro Ordonez, [758]*758on various drug charges. Compl. Ex. 9; A88; see also United States v. Ordonez, No. 93-181 (C.D.Cal.1993). At the time of the arrest, the FBI agents seized certain property that was in Mi1. Ordonez’s possession. A13-14. The items seized were inventoried and recorded on three FBI “Receipt for Property Received/Returned/Released/ Seized” (“FD-597”) forms. A162-64. These forms bear Mr. Ordonez’s signature. Id. Four days after the arrest, on January 19, 1993, the FBI located, inside a briefcase that was among the items seized, a cashier’s check payable to Ricardo Arbelaez, Plaintiff’s father. Compl. ¶ 13; A166. The cheek was drawn from the Deutsch-Sudamerikanische Bank in the amount of 123,516 Deutsche Marks (“DM”) (approximately $175,000; see Compl. 13). The check was placed into storage with the other seized items belonging to Mr. Ordonez. A166. In addition, the FBI seized business documents described as “in regard to Highland Coffee” Corporation, a family business that Plaintiff and her husband operated. Al, 14.

B. Prior Actions to Recover Property

Approximately six months after his criminal conviction was affirmed on appeal, Mr. Ordonez filed a motion in the United States District Court for the Central District of California seeking the return of his property. See United States v. Ordonez, No. 97-1979 (C.D.Cal.1997). Included among the items sought were the Ricardo Arbelaez cashier’s check and the Highland Coffee business documents. A104-106. In connection with this case, Ms. Arbelaez submitted an affidavit (eo-signed with her son, Francisco Ordonez) which stated that as of January 3, 1997, she had yet to receive any of the seized property back from the government. A137. The government did not oppose Mr. Ordonez’s motion, Allí, and requested that he identify a recipient for the property. A113. (As Mr. Ordonez was incarcerated at the time of his motion, he was ineligible to receive the property himself. A169.) However, according to FBI Special Agent George Q. Fong, Mr. Ordonez never designated an individual to receive the property, and, as a result, the property was not released. A170; see also A35. Mr. Ordonez then filed a motion for judgment on the pleadings, which the court denied in November 1997. United States v. Ordonez, No. 77-1979, docket no. 12; A65.

In November 1999, Mr. Ordonez filed a Bivens action in the Central District of California, alleging various civil rights violations in conjunction with his arrest. See Ordonez v. Johnson, No. 99-9229 (C.D.Cal.1999). After extensive litigation, the court dismissed the case; the United States Court of Appeals for the Ninth Circuit affirmed the dismissal in August 2006. A73-81.

In June 2007, Mr. Ordonez filed yet another motion for return of property, also in the Central District of California. See Ordonez v. United States, No. 07-3751 (C.D.Cal.2007). The court granted his motion and ordered the government to provide Mr. Ordonez with an inventory of the items in its possession. Id., docket no. 11. Mr. Ordonez designated Ms. Lina Giraldo as a recipient, and on September 25, 2007, the FBI mailed Mr. Ordo-nez’s property to Ms. Giraldo. A10. On June 18, 2008, the government filed a “Final Accounting” of Mr. Ordonez’s property with the court, listing the items that had been returned to Ms. Giraldo, including the Deutsch-Sudamerikanische Bank cashier’s check, and other items presumed lost or destroyed. A114-20.

Mr. Ordonez then sought damages stemming from the government’s retention of the property in question. Ordonez v. United States, No. 07-3751, docket no. 28. Ms. Ar-belaez filed an affidavit in support of his motion; that same affidavit was later appended to her complaint in this court. Compare A4, with A141. In September 2009, approximately one month after Ms. Arbelaez filed suit in this court, the district court in California denied Mr. Ordonez’s motion, holding that he had failed to establish both a possessory interest in the seized property and the monetary value of that property. Id., docket no. 40; A87-98. Mr. Ordonez appealed that denial to the Ninth Circuit; his appeal is still pending before that court. A101.

C. Ms. Arbelaez’s Action Before This Court

Ms. Arbelaez filed her complaint pro se with this court on August 3, 2009. From the [759]*759complaint and two rounds of briefing, it is evident that Ms. Arbelaez’s claim against the government derives from the cashier’s check and the unspecified business documents of Highland Coffee (described in the Complaint variously as “documentary materials,” Compl.

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Cite This Page — Counsel Stack

Bluebook (online)
94 Fed. Cl. 753, 2010 U.S. Claims LEXIS 720, 2010 WL 3705260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arbelaez-v-united-states-uscfc-2010.