Kee v. United States
- Denise Cote
- 1:20-cv-01840
- U.S. District Court · Southern District of New York
- 4
In Kee v. United States, Judge Cote ordered Kee to explain whether equitable tolling saves his apparently late property-return claim.
Charles Michael Kee and the United States; the order set deadlines for Kee’s equitable-tolling submission and the Government’s response.
What happened
In Kee v. United States, Charles Michael Kee sought the return of property that he said the Government had seized, including a watch, cellphone, jewelry, and $2,000. He had previously sought the property in 2001 and 2017, and filed this third petition in 2019.
The court noted that the six-year deadline for claims against the United States appeared to have expired on October 7, 2008, based on the end of Kee’s criminal case. The Government did not waive its timeliness defense.
Judge Denise Cote did not yet decide whether the claim was timely. She ordered Kee to provide facts and argument supporting equitable tolling by August 21, 2020, and allowed the Government to respond by September 4, 2020.
The detailed version
- Kee v. United States · No. 1:20-cv-01840
- Denise Cote
- July 13, 2020
Background
Charles Michael Kee sought the return of property that he said the Government had seized: a gold watch, beeper, lighter, wallet containing an identification card and papers, hat, jewelry, keys, cellphone, and $2,000 in cash. He first filed a motion under Federal Rule of Civil Procedure 41(g) in the criminal case on February 26, 2001. The court denied that motion as premature because Kee’s direct appeal was still pending.
Kee filed a second petition for return of property on October 3, 2017, asserting that the Government had not returned the property after his direct appeal ended. He moved to withdraw that action without prejudice instead of paying the relevant fees or seeking a waiver, and the court dismissed the action on November 27, 2017.
Kee filed this third petition in the criminal case on February 8, 2019. He did not initially pay the relevant fees or seek a fee waiver. He submitted an application to proceed without paying fees on March 30, 2020, but did not submit the required prisoner authorization until May 18, 2020. The Government opposed his motion on July 10, 2020.
Statute of Limitations
The court explained that 28 U.S.C. § 2401(a) generally bars a civil action against the United States unless it is filed within six years after the claim first arises. The court stated that Kee’s criminal proceeding ended, at the latest, on October 7, 2002, when the Supreme Court denied review. It therefore appeared that the deadline to bring this action was October 7, 2008.
The Government did not waive its defense that the action was filed too late. The court gave Kee an opportunity to seek equitable tolling, which can pause or extend a filing deadline in limited circumstances. The court stated that Kee would need to show that he pursued his rights diligently and that an extraordinary circumstance prevented a timely filing. He also had to show a connection between that circumstance and the delay in filing, as well as reasonable diligence throughout the period for which he sought tolling.
Order
The court ordered Kee to file any request for equitable tolling by August 21, 2020. The Government was ordered to respond by September 4, 2020. The opinion did not decide whether equitable tolling applied, whether the action was timely, or whether Kee was entitled to the return of the property.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.