Opinion
No. C-05-01604 RMW.
March 31, 2006
Todd S. Glassey, Plaintiff (pro se).
Peter L. Isola, Salle E. Yoo, Mark Williams (pro se) Andrea L. Courtney, Mark St. Angelo, Joann M. Swanson, Kevin V. Ryan, A. Francis Acker (pro se), Chinhayi J. Coleman, Counsel for Defendants.
Todd S. Glassey has filed suit against multiple defendants for claims allegedly arising from the bankruptcy of his former employer, CertifiedTime, Inc. The defendants have moved to dismiss on multiple grounds. For the reasons given below, the court will grant all the defendants' motions.
I. PRELIMINARY MATTERS
The parties have submitted voluminous records to the court. Since both sides have made extensive references to this evidence in connection with the motions to dismiss under Rule 12(b)(6), the court accepts this evidence and will treat the motions to dismiss of Amano Corporation, Mark Williams, Jay Goldberg, and Hudson Venture Partners, L.P., as motions for summary judgment under Rule 56, as allowed by Rule 12(b). The court will also treat the motion to dismiss the breach-of-contract claim by the National Institute of Standards and Technologies ("NIST") as one for summary judgment.
All references to a "Rule" are to a Federal Rule of Civil Procedure.
The court also takes judicial notice of the prior proceedings between these parties, both those before the bankruptcy court and the California Superior Court. A federal court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). It will become apparent in the course of this order that the parties' prior proceedings relate directly to Glassey's current action.
II. LITIGATION HISTORY
Certified Time was formed in 1999. 2d Am. Compl. ¶ 10. Its purpose was to develop a commercial internet timing service. Id. ¶¶ 10-12. Glassey, Francis Acker, Williams, and Goldberg were all involved in CertifiedTime. Id. ¶¶ 10, 14-15. Goldberg was also a principal of Hudson; Hudson invested in CertifiedTime. Id. ¶ 15-16.
In early 2000, CertifiedTime entered into a contract entitled "Cooperative Research Development Agreement" with NIST. See St. Angelo Decl., Ex. A ("CRADA") at 1, 9. Glassey was listed as CertifiedTime's "Principal Investigator" for purposes of the contract. Id. at 12. The purpose of the contract was for NIST and CertifiedTime to "study[] secure methods of time-data distribution offering the greatest precision across open networks such as the Internet and across closed networks adjoining the Internet such as are common in the commercial sector." Id. at 13.
On May 21, 2001, Todd Glassey sued Hudson, Goldberg, Williams, and CertifiedTime in the California Superior Court. Makris Decl. ¶ 3. CertifiedTime filed for bankruptcy, and Glassey's action was removed to federal court and consolidated with CertifiedTime's bankruptcy proceeding. Id. Glassey's third amended complaint in his first adversarial bankruptcy proceeding contained claims against Hudson, Goldberg, and Williams for violations of the California Corporations Code, fraud and concealment, tortious interference with prospective economic advantage, and violations of California Business and Professions Code § 17200. Makris Decl., Ex. A.
Glassey filed a total of four adversary proceedings in connection with CertifiedTime's bankruptcy, No. 01-54207-MM: (1) Glassey v. CertifiedTime, Inc., Adv. Proc. No. 01-5317; (2) Glassey v. CertifiedTime, Inc., Adv. Proc. No. 02-5491; (3) Glassey v. Amano Corp., Adv. Proc. No. 04-5142; and (4) Glassey v. Amano Corp., Adv. Proc. No. 04-5532. The bankruptcy court dismissed the first with leave to amend twice, and the court dismissed the matter with prejudice pursuant to stipulation on May 28, 2002. See Adv. Proc. No. 01-5317, Docket entries for 12/14/2001, 1/11/2002, 5/28/2002. Glassey's second adversary proceeding was dismissed for lack of prosecution on August 22, 2003. See Adv. Proc. No. 02-5491, Docket entry for 8/22/2003. The bankruptcy court dismissed the third case pursuant to stipulation on August 31, 2004. See Adv. Proc. No. 04-5142, docket entry 8/31/2004. (This third case involved minor proceedings in the district court as case No. C-04-02522 JW.) The bankruptcy court dismissed Glassey's complaint in the fourth case for lack of subject-matter jurisdiction on March 22, 2005. See Adv. Proc. No. 04-5532, Mem. Decision (Mar. 22, 2005); see also Makris Decl., Ex. E.
On May 13, 2002, Glassey agreed to accept $65,000 from Hudson, Goldberg, and Williams in exchange for a release of all claims against them. Id. ¶ 4. Under the terms of this release, Glassey gave up "all claims of every nature . . . whether known or unknown and whether suspected or unsuspected, existing" at that time. Id., Ex. B. (Settlement Agreement at 2). The release specifically mentioned that Glassey was surrendering "all claims against" Hudson, Goldberg, and Williams "arising out of or in connection with any claims or assets which [Glassey] acquired or could have acquired from the Trustee in Bankruptcy for CertifiedTime, Inc.," and "all claims in any way related to . . . CertifiedTime, Inc.," or Hudson, Goldberg, and Williams's "roles as investors, officers, directors[,] employees or agents of CertifiedTime, Inc." Id. Pursuant to the release, the signatories stipulated to a dismissal with prejudice of Glassey's action in the bankruptcy court, and on May 28, 2002, Judge Marilyn Morgan ordered Glassey's action dismissed on that basis. Adv. Proc. No. 01-5317, Docket entry for 5/28/2002.
Around a year later, Glassey purchased certain assets, including the rights under a contract between CertifiedTime and Amano Corporation, from the CertifiedTime bankruptcy estate. See Yoo Decl., Ex. C (Notice of Tr.'s Intent to Sell at 1). As part of this transaction, he agreed to surrender all claims against the bankruptcy trustee and the estate. Id. The bankruptcy court approved the sale on May 22, 2003. No. 01-54207, Docket entry for 5/22/2003.
On July 15, 2003, Glassey demanded arbitration (as required by the contract between CertifiedTime and Amano) to resolve ownership of assets connected to CertifiedTime. See Yoo Decl., Ex. F. Glassey claimed that he was entitled to certain assets of CertifiedTime controlled by Amano because he had purchased them from the bankruptcy trustee. Id. In November 2004, Glassey filed another complaint against Amano, Williams, Hudson, Goldberg, and NIST in CertifiedTime's then still-pending bankruptcy. Adv. Proc. No. 04-5532, Docket entry for 11/18/2004; see also Makris Decl., Ex. D. On December 1, 2004, the arbitration ended wholly in favor of Amano, and the arbitrator awarded Amano over $400,000. Yoo Decl., Ex. C. A final decree in CertifiedTime's bankruptcy issued on December 28, 2004. No. 01-54207, Docket entry for 12/28/2004. The bankruptcy court found Glassey's action against Amano, Williams, Hudson, Goldberg, and NIST was not a core proceeding and dismissed it as outside the jurisdiction of the bankruptcy courts. Yoo Decl., Ex. E.
On March 16, 2005, Amano filed suit in San Francisco Superior Court to confirm its arbitration award against Glassey. In re Amano Corp., CPF-05-505101 (Pet.). Glassey filed his initial complaint in his present suit before this court on April 19, 2005. On April 29, Glassey moved in this court for an order to vacate or stay the superior court action, which was not granted. Glassey pointed out to this court the standards for removing a case, but does not appear to have filed a notice of removal in the superior court. The day before the decisive hearing in the superior court, Glassey filed a motion to vacate or stay proceedings there pending the outcome of this federal case; that motion was not granted. See CPF-05-505101, Docket entry for 5/10/2005. On May 11, 2005, Judge James Warren of the superior court confirmed Amano's arbitration award and added interest and Amano's additional attorneys' fees to the award against Glassey. Id., Docket entries for 5/11/2005; Yoo Decl., Ex. D. On August 1, 2005, Glassey filed a notice of removal in this court; by that time, the superior court case was closed.
In this case, Glassey has amended his complaint twice. His complaint contains the following causes of action: bankruptcy fraud, 18 U.S.C. §§ 137, 152; misrepresentation of bankruptcy assets, 18 U.S.C. § 152; fraudulent failure to turn over bankruptcy estate assets, 11 U.S.C. § 542; fraudulent concealment of bankruptcy estate property, 11 U.S.C. § 542, 18 U.S.C. § 1431; filing of wrongful bankruptcy claims, 18 U.S.C. § 152; state-law breach of contract; state-law tortious interference with economic advantage; unfair business practices, Cal. Bus. Prof. Code § 17200; and state-law violation of fiduciary duties. Currently before the court are the motions to dismiss of defendants Amano, Williams, Hudson, Goldberg, and NIST.
The defendants' motions to dismiss were initially set for hearing on October 28, 2005. Two days before the hearing date, the parties stipulated to continue the hearing until December 16, 2005, because Glassey had become unexpectedly unavailable on October 28. Between November 7 and December 5, 2005, Glassey made numerous filings. Two of these filings purported to be further amendments to Glassey's second amended complaint, adding a new claim against Amano and adding Agilent Financial, Symmetricon Inc., Blueslate Solutions, David B. Wood, Richard Barnett, and Joe Raiti as defendants. Glassey did not move for leave to further amend his complaint before filing these latest two amendments (nor are they in compliance with Civil L.R. 10-1).
Ninth Circuit case law on amending complaints states that
[a]fter a party has amended a pleading once as a matter of course, it may only amend further after obtaining leave of the court, or by consent of the adverse party. Generally, Rule 15 advises the court that leave shall be freely given when justice so requires. This policy is to be applied with extreme liberality . . . [T]he Supreme Court offered the following factors a district court should consider in deciding whether to grant leave to amend: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be freely given.Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1050-51 (9th Cir. 2003) (citations and quotation marks omitted). The court will not grant Glassey leave to amend his complaint at this late stage of the proceedings. Glassey delayed the hearing on the defendants' motions to dismiss on October 28, 2005, and it would be unjust to allow him to use the additional time to alter his complaint. An amendment of Glassey's complaint at this juncture would cause undue delay, as the defendants began filing motions to dismiss in July 2005.
III. ANALYSIS OF THE MOTIONS TO DISMISS
A. Jurisdiction
Rule 8(a)(1) requires a complaint to contain "a short and plaint statement of the grounds upon which the court's jurisdiction depends." Glassey's complaint sets forth no jurisdictional basis for his claims. Defendants Amano, Hudson, and Goldberg argue that Glassey's failure to plead a basis for jurisdiction requires dismissal of his claims.
On page 4 of their motion to dismiss, defendants Hudson and Goldberg assert that "[i]f the complaint fails to allege a basis for jurisdiction, it must be dismissed. Thornhill Publishing Co. v. General Tel. Elect., 594 F.2d 730, 733 (9th Cir. 1979)." Amano's motion to dismiss contains exactly the same misstatement (also on page 4). Thornhill does not deal with the issue of whether a complaint must allege jurisdiction and instead focuses on whether the plaintiff established that there was a genuine issue of fact as to whether its intrastate activities substantially affected interstate commerce.
The rule is this circuit is clear. So long as facts giving the court jurisdiction are set forth in the complaint, the provision conferring jurisdiction need not be specifically pleaded. Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969); Aguirre v. Auto. Teamsters, 633 F.2d 168, 174 (9th Cir. 1980). Plaintiff not only alleges facts which give rise to federal question jurisdiction, but also specifically alleges several federal causes of action. It is obvious that this court has jurisdiction under 28 U.S.C. §§ 1331, 1367(a).
B. Glassey's Standing to Assert Bankruptcy Fraud Claims
Private parties generally lack standing to enforce federal criminal statutes. Title 18 of the United States Code covers "Crimes and Criminal Procedure;" violations of provisions of specific sections of title 18 are typically prosecuted by the U.S. Attorney's offices.
Glassey seeks to enforce three sections of Title 18: sections 137, 152, and 1431. (Congress specifically gave responsibility for enforcing 18 U.S.C. § 152 to the U.S. Attorneys and the Federal Bureau of Investigation. See 18 U.S.C. § 158.) The other two sections Glassey cites, 18 U.S.C. §§ 137 and 1431, do not exist. Glassey lacks standing to enforce any cause of action based on Title 18 that he has alleged. (Glassey himself seems to admit as much, stating that "The US Attorney notices the Court that PLAINTIFF lacks standing to bring a Criminal Prosecution against the DEFENDANTS in this matter, and he is correct . . ." Docket # 100 ¶ 19.) All Glassey's claims under Title 18 are therefore claims for which he cannot be granted relief.
There is no 18 U.S.C. § 1431. Reversing the digits of the cited section results in "1341." Title 18 U.S.C. § 1341 prohibits mail fraud. The general discussion of Glassey's lack of standing to enforce criminal statutes would be equally applicable to this criminal mail fraud statute.
Title 18 U.S.C. § 3057(a) states "Any judge, receiver, or trustee having reasonable grounds for believing that any violation under chapter 9 of this title or other laws of the United States relating to insolvent debtors, receiverships or reorganization plans has been committed, or that an investigation should be had in connection therewith, shall report to the appropriate United States attorney all the facts and circumstances of the case, the names of the witnesses and the offense or offenses believed to have been committed. Where one of such officers has made such report, the others need not do so." The court will take any action it deems appropriate under this section, though Glassey lacks standing to pursue any such action himself.
C. Defenses Specific to Agencies of the Federal Government
1. Glassey's tort claims against NIST
Defendant NIST argues that plaintiff's claims are barred by the Federal Tort Claims Act ("FTCA") (codified at 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2402, 2671-80). The FTCA limits the scope of suits against a federal agency by providing that "[t]he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under 28 U.S.C. § 1346(b)." 28 U.S.C. § 2679(a). Thus, if a suit is cognizable under § 1346(b), "the FTCA remedy is exclusive and the federal agency cannot be sued in its own name." FDIC v. Mayer, 510 U.S. 471, 476 (1983). Plaintiff, however, asserts that he is not bringing any tort claims against NIST. Docket # 82 at 10-11. This court will take Glassey at his word that he is not alleging any tort causes of action against NIST. 2. Glassey's 11 U.S.C. § 542 claims against NIST
To the extent that plaintiff may have brought causes of action in tort, defendant NIST's motion to dismiss would be granted since plaintiff incorrectly named NIST as defendant. In addition, plaintiff has failed to allege that he met the administrative claim requirements of the FTCA. Before a claimant may bring an action against the United States for money damages for injury or loss of property, the claimant must present the claim to the appropriate agency and must either receive a conclusive denial of the claim from the agency or wait for six months to elapse without a final disposition. See 28 U.S.C. § 2765(a); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974). The failure to file an administrative claim is a non-waiveable jurisdictional defect. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992).
Glassey alleges NIST violated 11 U.S.C. § 542 by fraudulently failing to turn over bankruptcy estate assets and concealing estate property. 2d Amd. Compl. ¶¶ 35-39. Plaintiff specifically states he is only seeking enforcement of U.S. bankruptcy law and recovery of his property. Docket # 82 at 10-11.
Title 11 § 542 generally requires an entity in possession of property from which the trustee of a debtor in a bankruptcy proceeding may derive benefit to turn over such property or its value. 11 U.S.C. § 542(a). Property of the estate is defined as all legal and equitable interests of the debtor in property at the commencement of the bankruptcy case. 11 U.S.C. § 541(a). As such, turnover is not intended as a remedy to determine disputed rights of parties to property; rather, it is intended to obtain what is acknowledged to belong to the bankruptcy estate. See In re Gallucci, 931 F.2d 738, 741 (11th Cir. 1991).
NIST argues that Glassy cannot assert a cause of action against it under § 542 for numerous reasons. The court agrees. The exception to the FTCA's waiver of sovereign immunity prevents this court from exercising jurisdiction over any fraud claim by Glassey against NIST. See 28 U.S.C. § 2680(h); Owyhee Grazing Ass'n, Inc. v. Field, 637 F.2d 694, 697 (9th Cir. 1981) ("[C]laims against the United States for fraud or misrepresentation by a federal officer are absolutely barred by 28 U.S.C. § 2680(h).").
Furthermore, Glassey cannot base any § 542 claims against NIST on the contract between NIST and CertifiedTime. The FTCA does not allow any sort of suit against the United States for interference with contract rights. See 28 U.S.C. § 2680(h); Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1154-55 (D.C. Cir. 1985); Dupreee v. United States, 264 F.2d 140, 143-44 (3d Cir. 1959). Glassey has not shown this court any exception to the FTCA that allows him to bring these claims against NIST, and the court is not aware of one.
Even if NIST did turn property over to the bankruptcy estate, the court does not see how this would benefit Glassey. Glassey has released all claims against the bankruptcy estate of CertifiedTime, so any property received by CertifiedTime would be unreachable by Glassey. Though Glassey styles himself as the successor to CertifiedTime, he was instead a creditor. The Supreme Court has recognized that a party must satisfy three minimum constitutional requirements in order to have standing to sue: (1) injury in fact; (2) causal causation between that injury and the conduct of defendant; and (3) likelihood that a favorable decision would redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Glassey has failed to meet the third requirement under Lujan since any recovery based on § 542 would have to go to the estate of CertifiedTime and could not benefit him.
The court will dismiss Glassey's § 542 claims against NIST.
3. Glassey's state-law breach of contract claim against NIST
Glassey asserts that NIST has breached the contract between CertifiedTime and NIST, and that he, as the "successor" to CertifiedTime, may enforce the contract against NIST. NIST counters that Glassey lacks standing to enforce any contract rights against NIST, because, among other reasons, the contract expired before Glassey obtained any assets from CertifiedTime's bankruptcy estate. NIST also argues that this court lacks subject-matter jurisdiction over Glassey's breach-of-contract claim.
Glassey could not seek more than $10,000 in damages for breach of a contract by NIST because district courts generally have jurisdiction over a "civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon any express or implied contract with the United States." 28 U.S.C. § 1346(a)(2). Glassey, however, apparently seeks only injunctive relief against NIST; the prayer for relief of his operative complaint discusses the return of property allegedly held by NIST. See 2d Am. Compl. at 21. The court is unable to figure out what property belonging to Glassey is allegedly being retained by NIST. Is it property created or purchased by NIST or is it property belonging to Glassey that was used during the CRADA?
The dispute-resolution provision of the CRADA appears to entitle NIST to summary judgment. Under section 10.1 of the agreement:
Any dispute arising under this Agreement which is not disposed of by agreement of the Parties shall be submitted jointly to the signatories of this Agreement. A joint decision of the signatories or their designees shall be the disposition of such dispute. If the Parties cannot reach a joint decision, either Party may terminate this Agreement immediately.
CRADA at 6. NIST is correct that, effectively, "cancellation of the CRADA was the only remedy available to either party in the event of a dispute." Docket # 66 at 10. Assuming for the sake of argument that Glassey obtained any rights under the CRADA, his sole remedy under the contract is the process described above. The court will therefore grant NIST summary judgment on Glassey's breach-of-contract claim. If, however, Glassey is claiming that NIST is retaining some property that he gave NIST possession of during the existence of the CRADA, he may file an amended complaint to clearly so state.
D. Res Judicata
As the late Charles Alan Wright noted, "Courts today are having difficulty giving a litigant one day in court. To allow that litigant a second day is a luxury that cannot be afforded." Law of Federal Courts § 100A (6th ed. 2002). Res judicata serves to "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication." Allen v. McCurry, 449 U.S. 90, 94 (1980). While judges would perhaps prefer solutions that made both sides happy, situations in which there is a mutually-agreeable solution rarely end up in court. Thus, in many disputes decided in court, one side loses. The parties must accept this and move on, rather than becoming enmeshed in a never-ending cycle of litigation about litigation.
Philosophical musings aside, "[u]nder res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Id. A party unhappy with a decision must seek review upwards through appellate courts, rather than laterally attacking a judgment from another (or even the same) trial court. This court must give the same preclusive effect to the judgment of a state court as that state judicial system would. Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir. 1990).
1. Glassey's claims against Amano
All Glassey's claims against Amano are barred by the parties' prior litigation. The doctrine of res judicata precludes not only claims that were actually brought in a prior case, but all claims that could have been brought because they were based on the same common nucleus of operative fact. See Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982). Each of Glassey's causes of action stems from events related to the bankruptcy of CertifiedTime. Glassey seeks to relitigate against Amano claims he has previously asserted in the bankruptcy of CertifiedTime, as well as claims that were arbitrated. The arbitration was confirmed in a California Superior Court action on May 19, 2005. Glassey challenged the underlying arbitration in the superior court. See Amano Corp. v. Glassey, No. CPF-05-505101, Respt's Mem. (April 6, 2005).
Glassey cannot challenge the arbitration award in this court, as that would in essence entail this court reviewing a decision of the superior court. Federal lower court review of a state-court decision is barred by the Rooker-Feldman doctrine. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). Had Glassey wished to contest the confirmation of the arbitration award, he would have had to follow the proper procedure for appeal up through the California state-court system, with a possible final appeal to the United States Supreme Court. See 28 U.S.C. § 1257(a). Glassey cannot maintain any of his claims against Amano in this court, and the court will grant summary judgment in favor of Amano on all claims.
2. Glassey's claims against Hudson, Williams, and Goldberg
Defendants Hudson, Williams, and Goldberg assert that Glassey's claims against them are barred by, among other things, res judicata, the statute of limitations, and the settlement agreement the parties executed in May 2002. This settlement agreement was between Glassey, on one side, and Williams, Goldberg, Hudson, and Bernadette La Casse, on the other. Makris Decl., Ex. B (Settlement Agreement at 1). The agreement stated that the parties surrendered "all claims of every nature, kind, or description whatsoever, whether known or unknown and whether suspected or unsuspected, existing on the date of this Release." Id. (Settlement Agreement at 2). The plain language of this release covers Glassey's current claims against Williams, Hudson, and Goldberg.
Around the time of this release, the parties stipulated to a dismissal with prejudice in the bankruptcy court. Adv. Proc. No. 01-5317, Docket entry for 5/28/2002. The doctrine of res judicata now bars any claims that Glassey could have asserted in his adversarial bankruptcy proceeding. While judgments of bankruptcy courts may be appealed to district court, 28 U.S.C. § 158(a), such appeals must be taken within ten days of the entry of judgment, Fed.R.Bankr.Pro. 8002. Glassey did not appeal within ten days; rather, he filed this original action almost four months after the final decree in the bankruptcy action.
The prior dismissal with prejudice and the release are each sufficient alone to bar all Glassey's current claims against Williams, Goldberg, and Hudson. The court therefore will grant summary judgment to Williams, Goldberg, and Hudson as to all causes of action against them.
IV. OTHER PENDING MOTIONS
All other pending motions by Glassey are denied. If, in light of the dismissals, Glassey believes he can state a claim against a new defendant, he must file a properly-noticed motion for leave to name such defendant.
V. ORDER
For the reasons given above, the court
(1) dismisses all Glassey's claims under Title 18 for lack of standing;
(2) grants summary judgment in favor of NIST on Glassey's breach-of-contract claim;
(3) dismisses all other claims against NIST as barred by the FTCA;
(4) grants summary judgment in favor of defendants Amano, Williams, Goldberg, and Hudson as to all of Glassey's causes of action against them; and
(5) grants Glassey leave to amend his breach-of-contract claim against NIST to state a claim for return of property against NIST.