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In re Search of the Scranton Housing Authority

May 11, 2007

IN THE MATTER OF THE SEARCH OF THE SCRANTON HOUSING AUTHORITY


The opinion of the court was delivered by: Judge Caputo

04-MISC Nos. 318-322

MEMORANDUM

Presently before the Court is Scranton Housing Authority's ("SHA") Appeal of and/or Objections to Magistrate Judge Malachy E. Mannion's Memorandum and Order Regarding SHA's Motion for the Unsealing of Affidavit of Probable Cause in Support of Search Warrant, and for Return of Property and Information Seized. (Doc. 20.) Because the Court is of the opinion that Magistrate Judge Mannion lacked jurisdiction to entertain SHA's motion, the Court will vacate his Memorandum and Order (Doc. 19) and dismiss SHA's motion (Doc. 6). SHA may file a civil action in the district court seeking the return of its property that was seized by the government.

BACKGROUND

On December 6, 2004, Magistrate Judge Mannion issued a warrant to search the offices of SHA. Upon motion of the government, Magistrate Judge Mannion also ordered the sealing of the application for the search warrant, the affidavit of probable cause, and the motion to seal itself. The following day, federal agents executed the search warrant.

On June 8, 2005, SHA filed a motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, FED. R. CRIM. P. 41(g),*fn1 requesting the unsealing of the application for the search warrant and the affidavit of probable cause which supported the search warrant. (Doc. 6.) SHA also requested that the property which was seized by the government be returned. (Id.) SHA also filed a brief in support of its motion. (Doc. 7.) The government filed its brief in opposition on June 27, 2005. (Doc. 8.) SHA filed its reply brief on July 7, 2005. (Doc. 9.)

After reviewing the parties' briefs, Magistrate Judge Mannion issued an order, dated November 9, 2005, directing that SHA and the government file briefs addressing, first, whether this was a criminal or civil matter, and, second, whether Magistrate Judge Mannion had jurisdiction to decide the matter. (Doc. 10.) SHA filed its supplemental brief on November 28, 2005. (Doc. 11.) The government filed its responsive brief on December 8, 2005. (Doc. 12.)

On May 20, 2006, the government filed, in camera, documents for Magistrate Judge Mannion's consideration in conjunction with its brief in opposition to SHA's motion. (Doc. 16.)

After several continuances, a hearing on SHA's motion was held on June 1, 2006. On June 22, 2006, Magistrate Judge Mannion issued a Memorandum and Order (Doc. 19) deciding the merits of SHA's Rule 41(g) motion. On July 3, 2006, SHA filed its appeal of Magistrate Judge Mannion's Memorandum and Order. (Doc. 20.) SHA filed a brief in support of its motion. (Doc. 21.) On August 30, 2006, this Court held a hearing on SHA's appeal.

Consequently, this motion is now ripe for disposition.

DISCUSSION

The Court is of the opinion that Magistrate Judge Mannion lacked jurisdiction to entertain SHA's Rule 41(g) motion. When no criminal proceedings are pending, either because an indictment has not yet been filed or because a criminal prosecution has terminated, a Rule 41(g) motion is considered a civil action for equitable relief. In re Search of S & S: Custom Cycle Shop, 372 F. Supp. 2d 1048, 1050 (S.D. Ohio 2003) ("Where no other criminal proceeding, other than the execution of a search warrant, has been initiated, the Sixth Circuit and other federal courts have routinely recognized that an action to retrieve property taken pursuant to a search warrant is in the nature of a 'civil complaint.'"); Purcell v. United States, 908 F.2d 434, 437 (9th Cir. 1990) ("Until criminal proceedings have been initiated against the movant by the filing of an indictment or information, motions to return property seized by the government are 'civil equitable proceedings'"); White Fabricating Co. v. United States, 903 F.2d 404, 407-08 (6th Cir. 1990) (motion filed pursuant to former Rule 41(e) prior to the commencement of criminal proceedings is actually equitable in nature and should be treated as a "civil complaint"); United States v. Bein, 214 F.3d 408, 411 (3d Cir. 2000) ("A district court has jurisdiction to entertain a motion for return of property even after the termination of criminal proceedings against the defendant and such an action is treated as a civil proceeding for equitable relief"). Indeed, "[r]eliance on the Federal Rules of Criminal Procedure is unnecessary and misleading as to the nature of the proceedings if no indictment or information has been filed." Purcell, 908 F.2d at 437 (holding that a motion filed pursuant to former Rule 41(e) seeking the return of property seized by the government is a civil proceeding if no indictment or information has been filed). Accordingly, absent the existence of a criminal action, vindication is civil in nature and can be attained by filing a civil action in the district court pursuant to the theory first set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). S & S: Custom Cycle Shop, 372 F. Supp. 2d at 1051-53. However, even if the Court were to recharacterize SHA's motion as a civil Bivens action, Magistrate Judge Mannion would not have had jurisdiction to entertain SHA's claim.

Under the Federal Magistrate Judges Act ("Act"), 28 U.S.C. § 631 et seq., the jurisdiction of a magistrate judge may arise in one of three ways: (1) through the prior jurisdiction of a United States commissioner, 28 U.S.C. § 636(a); (2) through referral by a district judge, 28 U.S.C. § 636(b); and (3) through the consent of the parties, 28 U.S.C. § 636(c). United States v. Douleh, 220 F.R.D. 391, 393 (W.D.N.Y. 2003).

Magistrate Judge Mannion did not possess jurisdiction pursuant to section 636(a) because United States commissioners did not have jurisdiction to hear Rule 41 ...


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