Nicholas v. U.S. Secret Service

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) PATRICK NICHOLAS, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-0606 (EGS) ) U.S. SECRET SERVICE, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Complaint,

ECF No. 25. For the reasons discussed below, the Court GRANTS the motion.

Plaintiff’s factual allegations are few. The Court understands the complaint to allege that

the United States Secret Service seized $13,198 from Plaintiff at the time of his arrest on July 19,

2011. See Compl. (ECF No. 1) at 5. Plaintiff alleges that the underlying case has been

dismissed, yet the Secret Service seized and forfeited the money. See id. Plaintiff believes that

the seizure and forfeiture violate the Takings Clause of the Fifth Amendment to the United States

Constitution, id., and he is ‘asking the court to return [his] money,” id.

Defendant advances two arguments for dismissal of the complaint. First, Defendant

argues that, to the extent Plaintiff brings a constitutional claim against a federal government

entity under 42 U.S.C. § 1983, the claim is barred. See Def.’s Mem. (ECF No. 25-1) at 5-6.

Second, Defendant asserts that the seizure of Plaintiff’s money is not a compensable taking. See

1 id. at 6-7. Plaintiff responds by citing AmeriSource Corp. v. United States, 525 F.3d 1149 (Fed.

Cir. 2008), in addition to the Fifth Amendment, to support his claim. See Pl.’s Opp’n (ECF No.

27) at 1. He offers no legal argument, however, and again demands the return of his money. See

id. The Court concludes that Plaintiff’s claim, whether under § 1983 or the Takings Clause,

fails.

“[T]he 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).

No federal government agency may waive immunity, and “[i]f the United States has not

consented to being sued under § 1983, sovereign immunity requires the court to dismiss

[Plaintiff’s] claim for lack of jurisdiction. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1105

(D.C. Cir. 2005) (citation omitted).

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983 (emphasis added). Nowhere does § 1983 mention the United States or any

federal government entity. Nor does § 1983 expressly waive of the federal government’s

sovereign immunity. Therefore, Plaintiff’s claim against the U.S. Secret Service under § 1983

must be dismissed for lack of subject matter jurisdiction. See, e.g., Miango v. Democratic

Republic of the Congo, 243 F. Supp. 3d 113, 134 (D.D.C. 2017) (dismissing First, Fourth, Fifth,

and Fourteenth Amendment claims under § 1983 brought against the U.S. Secret Service).

2 “The Takings Clause provides in full: ‘nor shall private property be taken for public use

without just compensation.’” AmeriSource, 525 F.3d at 1152 (quoting U.S. Const. Amend. V)

(emphasis added). It “does not entitle all aggrieved owners to recompense, only those whose

property has been taken for a public use.” Id. The Secret Service allegedly seized Plaintiff’s

property following his arrest on unspecified criminal charges, and “[p]roperty seized and

retained pursuant to the police power is not taken for a “public use” in the context of the Takings

Clause.” Id. at 1153. Plaintiff’s reliance on the AmeriCorp case is misplaced; if anything, the

Federal Circuit’s ruling works against his interests.

The Court concludes that it lacks subject matter jurisdiction over Plaintiff’s purported

§ 1983 claim, and that the complaint fails to state a claim under the Takings Clause.

Accordingly, the Court will grant Defendant’s motion and dismiss the complaint. An Order is

issued separately.

DATED: May 20, 2020 /s/ EMMET G. SULLIVAN United States District Judge