Silva v. United States

51 Fed. Cl. 374, 2002 U.S. Claims LEXIS 9, 2002 WL 62982
CourtUnited States Court of Federal Claims
DecidedJanuary 11, 2002
DocketNo. 01-237 C
StatusPublished
Cited by9 cases

This text of 51 Fed. Cl. 374 (Silva 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
Silva v. United States, 51 Fed. Cl. 374, 2002 U.S. Claims LEXIS 9, 2002 WL 62982 (uscfc 2002).

Opinion

OPINION

DAMICH, Judge.

Presently before the Court is the Defendant’s motion to dismiss for lack of subject-matter jurisdiction, pursuant to Rule of the Court of Federal Claims (“RCFC”) 12(b)(1), or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(4). The Plaintiff seeks the value of 103 parrots (as well as the value of their potential progeny) that were seized by the Government in a sting operation. Because, in this instance, this Court does not possess jurisdiction to hear claims for money damages associated with the seizure of property pursuant to a criminal investigation, the Defendant’s motion to dismiss for lack of subject-matter jurisdiction is GRANTED.

I. Background

Plaintiff Tony Silva is an expert and dealer in exotic birds. On August 22, 1989, the Plaintiff entered into a breeding loan contract with James Mackman in which Mr. Mackman would care for and feed certain birds belonging to the Plaintiff in return for 50 percent of the progeny produced from the birds. Pl.’s Compl. Ex. A at 1. However, at some point in time disputed by the parties, Mr. Mackman agreed to become a “cooperating private individual” (“CPI”) with the Fish and Wildlife Service (“FWS”). In an agreement between Mackman and the FWS signed on May 18, 1990, Mackman agreed “to provide intelligence information” to the FWS and “document violations of state and federal wildlife laws if any” with respect to “subjects of major importance in the exotic bird trade.” Pl.’s Compl. Ex. I at 1 (capitalizations modi[376]*376fled). In furtherance of these objectives, Mr. Mackman was directed to establish a breeding operation for exotic birds secretly under the direction of the FWS. Id. In return, the FWS agreed to pay Mackman $1,750 per month and also to pay all expenses related to the breeding loan operation. Pl.’s Compl. Ex. I at 2.

Pursuant to an undercover investigation of the Plaintiff, Mackman held at his aviary, under the guise of the breeding loan agreement, 110 psittacine birds, i.e., parrots, belonging to the Plaintiff, some or all of which were protected birds illegally imported into the United States. One hundred and three of the parrots were collected by the Government on January 16, 1992, in conjunction with the execution of a search warrant. Pl.’s Compl. Ex. D at 1. On April 24, 1992, an Assistant U.S. Attorney (“AUSA”) for the Northern District of Illinois informed the Plaintiffs then-counsel, Mr. David Schippers, that some of these parrots had tested positive for a variety of diseases or had been exposed to diseased birds and the Government had concerns that, if the Plaintiffs birds were to be dispersed to the general bird population, further spread of the disease would occur. Id. The AUSA requested that the Plaintiff abandon the parrots to the Government so they could be “donated to one or more scientific research projects.” Pl.’s Compl. at Ex. D at 4. According to the Government, the Plaintiffs mother, Gila Daoud, signed an abandonment form on behalf of the Plaintiff, thereby releasing the birds to the Government. Def.’s Mot. at App. 94.1 These parrots were subsequently distributed to various persons and institutions.

On January 30, 1996, pursuant to a plea agreement, the Plaintiff pled guilty to illegal importation of protected wildlife, conspiracy to illegally import protected wildlife, and tax evasion. Def.’s Mot. at App. 54.

On October 14, 1997, Mr. Schippers wrote a letter to the AUSA claiming that, while the Plaintiff abandoned the birds because the Government represented that the parrots were sickly or had been exposed to diseases and that they needed to be euthanized, he had learned through a FOIA request by a third party that the birds were healthy and that they were not destroyed. Pl.’s Compl. Ex. C at 1-2. The Plaintiff claims that he learned of the true situation in late 1998.

On April 20, 2001, the Plaintiff filed a complaint in this Court and also subsequently filed amendments on May 8, 2001, and May 21, 2001. The Plaintiff claims that the collection and disposition of the birds at issue by the Government breached the loan agreement entered into by Mr. Mackman on behalf of the Government and also resulted in a taking under the 5th Amendment.

II. Standard of Review

“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988).

III. Discussion

Assuming, but not deciding, that the Plaintiff is in privity of contract with the United States by means of the breeding loan agreement between the Plaintiff and Mr. Mackman,2 this Court does not have jurisdic[377]*377tion over either the breach-of-contract claim or the takings claim. The Tucker Act vests the Court of Federal Claims with “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). This statute serves as a waiver of sovereign immunity as to those claims. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the waiver of sovereign immunity must be expressed in unequivocal terms. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). Moreover, the jurisdiction in this Court to hear contract liability claims against the United States, as provided by the Tucker Act, does not extend to every situation where the government has entered into an agreement. Sadeghi v. United States, 46 Fed.Cl. 660, 662 (2000). As stated in Kania v. United States,

The Congress undoubtedly had in mind as the principal class of contract case in which it consented to be sued, the instances where the sovereign steps off the throne and engages in the purchase and sale of goods, lands, and services, transactions such as private parties, individuals or corporations also engage in among themselves.

Kania v. United States, 227 Ct.Cl.

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51 Fed. Cl. 374, 2002 U.S. Claims LEXIS 9, 2002 WL 62982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-united-states-uscfc-2002.