No Heightened Review Without an Arguable Limitations Bar: Fifth Circuit Affirms Rule 41(b) Dismissal of a Post-Conviction Rule 41(g) Property-Return Action

Introduction

In Sanusi v. United States, No. 25-40323 (5th Cir. Sept. 30, 2025) (per curiam) (unpublished), the Fifth Circuit affirmed the Eastern District of Texas’s dismissal without prejudice of a pro se federal inmate’s Federal Rule of Criminal Procedure 41(g) motion seeking the return of seized electronics, legal-status documents, and personal effects. The district court dismissed the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with court orders after the plaintiff did not pay the filing fee or seek in forma pauperis (IFP) status and failed to keep the court advised of his address during multiple Bureau of Prisons transfers.

On appeal, the principal issues were: (1) what standard of review applies to a Rule 41(b) dismissal “without prejudice” when a limitations period may effectively convert it into a dismissal “with prejudice,” and (2) when a post-conviction Rule 41(g) motion, construed as a civil equitable action, accrues and is time-barred. The panel held that the heightened standard of review for dismissals that operate with prejudice applies only where the statute of limitations has arguably run on the claim—a showing the appellant failed to make because the record lacked the date of seizure. The court also reiterated the Fifth Circuit’s 11-year rule-of-thumb for timeliness of Rule 41(g) claims when the government has not instituted forfeiture proceedings.

Summary of the Opinion

The Fifth Circuit affirmed the district court’s dismissal without prejudice, concluding there was no abuse of discretion under Rule 41(b) given Sanusi’s eight-month inaction, his failure to respond to two orders directing him to pay the filing fee or file for IFP status, and his failure to inform the court of his address changes during transfers between facilities in California, Louisiana, and Florida. The court declined to apply the heightened standard of review (used when a dismissal without prejudice effectively acts as with prejudice due to limitations) because the record did not establish the property’s seizure date. Without that date, the court could not find that the statute of limitations had arguably run.

Substantively, the panel reaffirmed that a post-judgment Rule 41(g) motion is a civil action in equity subject to the general six-year limitations period of 28 U.S.C. § 2401(a), which begins after the government’s five-year window to initiate civil forfeiture proceedings expires if no forfeiture is brought—producing an 11-year outer boundary from seizure to suit. The court also noted that Bivens is unavailable for claims involving deprivation of property in this context, so the case was properly confined to the equitable Rule 41(g) framework. The court expressly left the limitations issue to be decided in any refiled action on an adequate record and emphasized that its decision did not comment on the merits of the property-return claim.

Detailed Analysis

Precedents and Authorities Cited

• Fed. R. Crim. P. 41(g): Authorizes a motion for return of property “in the district where the property was seized,” requires the court to receive evidence on necessary factual issues, and permits reasonable conditions on return. When filed after the criminal case has concluded, Rule 41(g) motions are treated as civil equitable actions.
• 28 U.S.C. § 1331 and Bailey v. United States, 508 F.3d 736, 738 (5th Cir. 2007): When the criminal case is closed, a Rule 41(g) motion is properly construed and docketed as a new civil action under the court’s general federal question and equity jurisdiction.
• Rule 41(b) and Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018): District courts have authority to dismiss actions sua sponte for failure to prosecute or failure to comply with court orders.
• Standard of Review: Larson v. Scott, 157 F.3d 1030, 1031–32 (5th Cir. 1998) (abuse-of-discretion review for dismissals without prejudice). Where dismissal without prejudice may effectively be with prejudice due to limitations, heightened review applies. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008); Boazman v. Econ. Labs., 537 F.2d 210, 213 (5th Cir. 1976).
• Heightened Standard for With-Prejudice Effect: Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992), requiring a “clear record of delay or contumacious conduct” before imposing the functional equivalent of with-prejudice dismissal.
• Limitations for Rule 41(g) Equitable Actions: United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004) (per curiam) (six-year period under 28 U.S.C. § 2401(a)); Tampico v. Martinez, 987 F.3d 387, 391 (5th Cir. 2021) (per curiam) (accrual begins after the five-year period for the government to initiate forfeiture under 19 U.S.C. § 1621 expires when no forfeiture occurs); Landry v. United States, 600 F. App’x 216, 219 (5th Cir. 2015) (per curiam) (practical 11-year window from seizure absent forfeiture). Tampico also notes that, in criminal forfeiture cases, accrual occurs at conviction and entry of judgment; but Sanusi’s judgment contained no forfeiture component.
• Post-Judgment Motions: Fed. R. Civ. P. 59(e) (motion to alter or amend judgment), invoked by the magistrate judge in construing Sanusi’s motion to refile/seek IFP after dismissal.
• Bivens: Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (spelled “Bivins” in the panel’s footnote). The panel cites Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir. 2021) (per curiam), and United States v. Mtaza, 849 F. App’x 463, 469 (5th Cir. 2021) (per curiam), for the proposition that the Supreme Court has severely limited Bivens remedies and that deprivation-of-property claims fall outside the recognized contexts.

Procedural Posture and the Standards of Review

The district court docketed the Rule 41(g) motion as a civil action (proper under Bailey) because Sanusi’s criminal case had concluded. Over eight months, the court twice ordered Sanusi to pay the fee or apply for IFP; each mailing to his original California address was returned after he had been transferred to Louisiana and then Florida. Sanusi did not notify the court of his address changes, and mail was not forwarded. The magistrate recommended dismissal without prejudice; the district judge adopted that recommendation on December 2, 2024. Sanusi then moved to refile and to proceed IFP (construed as Rule 59(e)), explaining BOP mail issues. The court denied relief on May 21, 2025, and Sanusi appealed.

On appeal, the standard of review drives the outcome. A dismissal without prejudice is generally reviewed for abuse of discretion. However, if the applicable limitations period has arguably expired, that dismissal operates as with prejudice and triggers a heightened standard requiring a “clear record of delay or contumacious conduct” (and, under the larger Berry/Millan framework, consideration of whether lesser sanctions would suffice). The panel held that the record did not show the seizure date, so the court could not conclude that limitations had arguably run. As a result, only ordinary abuse-of-discretion review applied.

The Court’s Legal Reasoning

1. Nature of the Action and Limitations Framework:
   • Because the criminal case had terminated, the Rule 41(g) motion was properly recharacterized as a civil action in equity under § 1331. This triggers the general six-year limitations period under § 2401(a) for suits against the United States, following Wright.
   • Where no forfeiture is instituted, accrual for the equitable return-of-property claim begins when the five-year forfeiture window under § 1621 expires. This produces an 11-year outer limit from the date of seizure, per Tampico and Landry.
   • In criminal forfeiture cases, accrual occurs upon conviction and entry of judgment; but Sanusi’s judgment contained no forfeiture, so the civil-forfeiture accrual rule governs.
2. Heightened vs. Ordinary Review:
   • Heightened review applies only if the dismissal “without prejudice” would, due to limitations, operate “with prejudice.” The court emphasized that the burden to demonstrate an arguable limitations bar rests on the appellant seeking heightened review.
   • Without the seizure date in the record, the panel could not say limitations had arguably run. Thus, the panel declined to apply the heightened standard and reviewed only for abuse of discretion.
3. No Abuse of Discretion:
   • The record showed months of inactivity, two unheeded orders to pay the fee or apply for IFP, and the appellant’s failure to update his address despite multiple transfers. Rule 41(b) authorizes dismissal for failure to prosecute and to comply with court orders; dismissals without prejudice for such reasons are commonly affirmed under abuse-of-discretion review, particularly where warnings were issued and went unheeded.
   • Sanusi’s post-judgment explanation—attributing noncompliance to BOP mail issues and asserting prompt action once he learned of dismissal—did not compel a different result under Rule 59(e), which is a narrow vehicle requiring manifest error or newly discovered evidence. The magistrate recommended denial, and the district court adopted that recommendation.
4. Bivens Not a Viable Alternative:
   • Although Sanusi suggested his claim “sounds in Bivens,” the panel correctly noted that the Supreme Court has limited Bivens remedies to a few contexts that do not include property-deprivation claims. Following Byrd and Mtaza, the court declined to analyze any Bivens limitations and confined the case to the Rule 41(g)/equitable framework.
5. Limited Holding and Path Forward:
   • The panel affirmed but explicitly invited refiling, noting that Sanusi “may refile his equitable claim and compile an appropriate record,” at which point limitations can be adjudicated on facts including the date of seizure and whether forfeiture was ever initiated.
   • The opinion cautioned that nothing in the decision addresses the merits of any future claim; the affirmance is purely procedural.

Key Rule Clarified by This Opinion

To obtain heightened appellate scrutiny of a Rule 41(b) dismissal “without prejudice” on the theory that limitations effectively convert it to “with prejudice,” the appellant must make a record-based showing that the limitations period has arguably run. Absent such a showing—here, due to the missing seizure date—ordinary abuse-of-discretion review applies.

Impact and Practical Implications

• Burden Allocation on Appeal: The decision clarifies a practical burden-shifting point for litigants. The party seeking heightened review must present enough record material (e.g., the date of seizure) to show an arguable statute-of-limitations bar. Appellate courts will not presume timeliness problems without that showing.
• Record-Building in Rule 41(g) Litigation: Prisoners and counsel should develop a clear record on foundational facts, especially the date and circumstances of seizure and whether the government initiated civil or criminal forfeiture. Without these facts, both timeliness and the availability of heightened review may be impossible to evaluate.
• Address Updates and Compliance: The opinion reinforces a strict expectation that incarcerated litigants keep the court apprised of address changes and comply with fee/IFP directives. Transfers and mail disruptions typically will not excuse noncompliance unless the litigant has diligently updated the court.
• The “11-Year” Rule of Thumb: The panel recites the Fifth Circuit’s established framework: six years under § 2401(a) plus the government’s five-year forfeiture window under § 1621 produce an 11-year outer limit for Rule 41(g) actions when no forfeiture occurs. That practical benchmark will continue to guide district courts handling property-return suits after the conclusion of criminal proceedings.
• Bivens Closed Door: By reiterating that Bivens does not extend to property-deprivation claims, the panel channels litigants toward Rule 41(g) as the primary vehicle for relief and away from damages suits against individual officers in this context.
• Unpublished but Persuasive: Although not precedential under 5th Cir. R. 47.5, the opinion provides persuasive guidance to district courts in the circuit on managing dormant Rule 41(g) actions and on calibrating the standard of review in the absence of a developed record on limitations.

Complex Concepts Simplified

• Rule 41(g) vs. Rule 41(b):
  • Rule 41(g) (criminal rule) allows a person to seek return of property seized by the government. After a criminal case ends, such a motion is treated as a civil equitable lawsuit against the United States.
  • Rule 41(b) (civil rule) allows a court to dismiss a case if the plaintiff fails to prosecute it or disobeys court orders. Dismissals can be “with prejudice” (final) or “without prejudice” (allowing refiling), but a “without prejudice” dismissal may effectively be final if the statute of limitations has run.
• “Abuse of Discretion” vs. “Heightened Review”:
  • Abuse of discretion is a deferential standard: the appellate court asks whether the district court made a reasonable choice among permissible options.
  • Heightened review applies to dismissals that function as with prejudice, requiring a stronger showing of plaintiff misconduct (e.g., a “clear record of delay or contumacious conduct”) before upholding dismissal.
• Accrual and Limitations in Rule 41(g) Cases:
  • General rule for suits against the United States: six years from accrual (28 U.S.C. § 2401(a)).
  • In Rule 41(g) property-return cases with no forfeiture filed, accrual is delayed until the government’s five-year window to initiate forfeiture expires (19 U.S.C. § 1621), creating an 11-year window from seizure to file suit.
  • If the government pursued criminal forfeiture, a different accrual rule applies (accrual at conviction and judgment).
• Bivens:
  • Bivens is a judge-made damages remedy against federal officers for certain constitutional violations. The Supreme Court has restricted Bivens to a few contexts (e.g., unreasonable searches, certain due process/equal protection contexts) and has declined to expand it.
  • Property-deprivation claims like Sanusi’s do not fit within recognized Bivens contexts. The proper route is equitable return of property under Rule 41(g), not a damages suit against officers.
• “Without Prejudice” Dismissal:
  • Means the plaintiff may refile the claim. It does not decide the merits. However, if the limitations period has expired, refiling may be barred, making the dismissal effectively final.

Conclusion

Sanusi confirms two practical pillars of Fifth Circuit law in the Rule 41(g) context. First, the court reaffirmed the 11-year limitations framework (five-year forfeiture period plus six-year § 2401(a) period) for equitable property-return actions when no forfeiture is pursued. Second, it clarified a key appellate review point: the heightened standard for dismissals that operate with prejudice applies only when the appellant demonstrates on the record that limitations has arguably run. Without that showing—here, because the seizure date was absent—ordinary abuse-of-discretion review controls, and dismissal for failure to prosecute and comply with orders will be affirmed where the plaintiff ignored fee/IFP directives and failed to maintain current contact information.

The decision also reemphasizes that Bivens is not an avenue for property-deprivation claims, keeping litigants on the Rule 41(g) equitable track. While unpublished, the opinion delivers clear, practical guidance: build the record on seizure and forfeiture; comply promptly with fee/IFP orders; and keep the court informed of address changes. Doing so preserves heightened-review arguments if dismissal is threatened and ensures that timeliness can be adjudicated on a complete record. Here, because those steps were not taken, the Fifth Circuit found no abuse of discretion and affirmed the dismissal without prejudice, leaving the door open for a properly supported refiling.