Opinion
NO. 4:99-CV-813-E
January 12, 2001
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND/OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
Now pending before the Court is a "Motion to Dismiss And/Or In The Alternative For Summary Judgment" filed by Defendants the United States of America, the Department of Justice, and the Drug Enforcement Agency (collectively "the Government"), requesting that this Court dismiss the Amended Complaint filed by Plaintiff Ricky Dan Wilhite in this matter. Plaintiff has responded in opposition to Defendants' motion. After considering the submissions of the parties, the record in this matter, and the applicable law, the Court makes the following determination.
I. BACKGROUND
The material facts of this matter are essentially undisputed. On March 26, 1997, DEA agents John Slagle and J.J. Kalash received information from American Airlines concerning Ricky Wilhite, a passenger on a flight from Birmingham, Alabama, to Ontario, California, with a stopover at Dallas/Fort Worth Airport (DFW). Wilhite made a telephone reservation for the 4:14 p.m. flight 20 minutes before its departure, and purchased his ticket at the American ticket counter for $617.00 in cash a mere 7 minutes before the flight was due to depart. He purchased an open-end return ticket, and did not check any luggage.
Slagle and Kalash met the plane upon its arrival into DFW. They observed Wilhite exit the plane, and believed him to be acting nervously. Slage and Kalash approached Wilhite and identified themselves as police officers. Wilhite agreed to talk with Kalash.
After examining Wilhite's plane ticket and Alabama driver's license, Kalash asked Wilhite the nature of his trip to California. According to the Government, Wilhite allegedly told Kalash that he owned a house in the Ontario area which he was trying to sell, and was traveling to check on it. Wilhite disputes this version, and states that he told Kalash that he was renting a house in Ontario that he was interested in purchasing, and was in the process of moving to California. Wilhite gave the address of the house as 1665 Rialto Avenue, Colton, California.
Kalash asked Wilhite if he was carrying large amounts of currency or anything else unusual. After Wilhite denied having any currency with him, Kalash revealed that he had seen a large amount of money in Wilhite's wallet while he was removing his driver's license. Wilhite then removed a bundle of $100 bills from his wallet, and stated that it amounted to approximately $4,000.
After Wilhite stated that this was all the currency in his possession, Kalash asked him to identify the contents of the bulging front left pants pocket of his jeans. Wilhite proceeded to remove another large bundle of currency from his pocket, stating that this amounted to approximately $6,000. He stated that the cash was his "hanging out" money, and had been acquired by selling cars to unknown individuals.
Although Wilhite initially told Kalash that he had never been arrested, Wilhite later admitted that he had been arrested for Possession of Methamphetamine in Amarillo, Texas, in 1995. A criminal history check conducted by Kalash the following day confirmed Wilhite's 1995 arrest in Amarillo, and also revealed another 1995 arrest for Possession of Crystal Methamphetamine in Meridian, Mississippi.
Concluding their conversation, Kalash informed Wilhite that he would not be arrested, but that the money would be taken to a LEA office for counting and to have a narcotic-detecting dog check it for the presence of a narcotic odor. Kalash told Wilhite that he could come to the office with the currency, but Wilhite chose to continue his trip to Ontario.
The currency surrendered by Wilhite was counted and found to be $9,670, consisting almost entirely of $100 bills. The DEA's narcotic-detecting dog positively alerted to the presence of a narcotic odor on the currency during one of the three tests that were conducted.
On April 1, 1997, Kalash mailed a form receipt for the seized currency to Wilhite via certified mail at 442 County Road 1503, Cullman, Alabama 35055, the address that Wilhite had provided for a receipt and forfeiture proceedings notification. The return receipt received by Kalash had been signed by a "Annie Wilhite" on April 3, 1997. Although Wilhite concedes that Annie Wilhite is his sister-in-law, he states that she does not live at the address he provided to Kalash, and she would not knowingly receive his mail.
After a legal review of the probable cause that existed to seize the $9,670 from Wilhite, DEA decided to bring administrative forfeiture proceedings against the property. On April 14, 1997, written notice of the seizure was sent by certified mail, return receipt requested, to Wilhite at the addresses he had provided in Colton, California, and Cullman, Alabama. The notice mailed to California was accepted by a "Juan Ramirez" on April 21, 1997. The Alabama notice of seizure was returned to DEA with the stamps, "Attempted Not Known" and "Not at This Address."
The Government infers in its brief that the probable cause supporting the decision to seize the currency from Wilhite included his suspicious behavior on March 26, 1997, his three prior convictions for possession of Methamphetamine, and the February 1997 seizure of $14,140 from a suspicious individual who was traveling from Birmingham, Alabama, to Ontario, California, to "hang out" with Wilhite.
On April 23, 1997, pursuant to 21 C.F.R. § 1316.75, notice of the currency seizure initially was published in USA Today. The notice was published again on April 30, 1997, and May 7, 1997.
Having not received a timely claim to the currency from Wilhite within the 20-day time period set by law, the DEA administratively forfeited the $9,670 to the United States on June 16, 1997, pursuant to federal law.
Wilhite was arrested on May 4, 1998, and charged with conspiracy and possession with intent to distribute methamphetamine. After pleading guilty to both charges, Wilhite was sentenced to 117 months in prison. He is currently incarcerated at a federal correctional facility in Talladega, Alabama.
On November 29, 1999, Wilhite filed an Amended Complaint in this matter. He asserts three causes of action: first, that the Government did not have probable cause to stop and question him at DFW; second, that the Government did not have probable cause to seize the $9,670 from him at DFW; and finally, that the Government did not give proper notice of the seizure of the $9,670. Wilhite seeks equitable relief and unspecified money damages for his claims.
The Amended Complaint was served upon the United States Attorney for the Northern District of Texas on April 7, 2000, and upon the United States Attorney General on April 5, 2000. The DEA, however, did not receive service of the Amended Complaint.
The Government filed the present Motion on May 30, 2000. On August 31, 2000, Wilhite filed both a response to the Government's Motion and his own Motion for Summary Judgment. The Government responded to both of Wilhite's submissions on October 3, 2000.
II. SUMMARY JUDGMENT STANDARD
The Government's motion will be considered as one for summary judgment under Federal Rule of Civil Procedure 56, rather than as a motion to dismiss, because matters outside the pleadings have been submitted for the Court's consideration. See Fed.R.Civ.Pro. 12(b) (6); Nwagoro v. Department of the Army, 952 F. Supp. 394, 396 (N.D. Tex. 1996).
Summary Judgment is proper when the record establishes that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Hill v. London, Stetelman, Kirkwood, Inc., 906 F.2d 204, 207 (5th Cir. 1990). The evidence in the record is to be viewed in the light most favorable to the nonmoving party. Newell v. Oxford Management Inc., 912 F.2d 793, 795 (5th Cir.), reh'g denied, 918 F.2d 484 (1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In order to prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that she is entitled to a judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988) ; Fed.R.Civ.P. 56(c). The party moving for summary judgment need not produce evidence showing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof. See Celotex Corp., 477 U.S. at 325. Rather, the party moving for summary judgment need only show that the party who bears the burden of proof has adduced no evidence to support an element essential to his case. See id.; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988). If the movant bears the burden of proof on a claim or defense, he must establish all elements of the claim or defense to prevail on summary judgment. See Home Health Agency, Inc., 862 F. Supp. 129, 133 (N.D. Texas 1994) (Mahon, J.); Western Fire Insurance Co., v. Copeland, 651 F. Supp. 1051, 1053 (S.D. Miss. 1987),aff'd, 824 F.2d 970 (5th Cir. 1987).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence showing the existence of a genuine fact issue. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986);Anderson, 477 U.S. at 257. In order to avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Rule 56(e) requires that the nonmoving party "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256.
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See Williams, 836 F.2d at 961. All reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion and any doubt must be resolved in their favor. See Matsushita, 475 U.S. at 587-90; Meyers v. M/V Eugenio, 842 F.2d 815, 816 (5th Cir. 1988). The Court's function, however, is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
III. DISCUSSION
The Government initially challenges this Court's jurisdiction to consider Wilhite's claims. The United States generally is immune from suit unless it expressly waives its sovereign immunity. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Thus, a federal court has no jurisdiction over a suit levied against the United States unless Congress has granted its explicit statutory consent. See Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987) (per curium). Such congressional waivers of sovereign immunity must be narrowly construed. See Wilkerson v. United States, 67 F.3d 112, 118 (5th Cir. 1995).
The Administrative Procedure Act ("APA"), which permits judicial review of the actions of federal agencies, states that:
[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. . . .See 5 U.S.C. § 702. Thus, § 702 of the APA serves as a limited waiver of the United States's sovereign immunity, allowing equitable relief — but not money damages — for suits based on improper agency action. See Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir. 1994).
To the extent Wilhite's three claims ask for monetary damages, this relief is prohibited by the Government's sovereign immunity and the clear language of § 702 of the APA. See Armendariz-Mata v. United States Dept. of Justice, Drug Enforcement Admin., 82 F.3d 679, 682 (5th Cir. 1996). Although the Court does not have subject-matter jurisdiction over Wilhite's claims to the extent they request monetary damages, the Court must now consider whether it has jurisdiction over Wilhite's claims for equitable relief (i.e. the return of $9,670 in currency).
As a general rule, federal courts lack jurisdiction to review the merits of administrative forfeiture decisions once the administrative process has begun. See Kadonsky v. United States, 216 F.3d 499, 506 (5th Cir. 2000); Weng v. United States, 137 F.3d 709, 713 (2d Cir. 1998). One exception to this general rule, however, is where the claimant to the seized property alleges that he did not receive proper notice of the forfeiture from the government. See Kadonsky, 216 F.3d at 506;Barrera-Montenegro v. United States, 74 F.3d 657, 659-60 (5th Cir. 1996) A forfeiture accomplished without adequate notice is void and must be vacated. See Kadonsky, 216 F.3d at 506.
In forfeiture proceedings, proper notice includes publication of the intent to forfeit in a newspaper of general circulation, and written notice sent to each party who appears to have an interest in the seized property. See 19 U.S.C. § 1607; Armendariz-Mata, 82 F.3d at 682. When notice is sent by mail, due process is satisfied if the government acted reasonably under all the circumstances in relying on the mail as a means to apprise the interested party of the pending action. See Armendariz-Mata, 82 F.3d at 683; see also Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950) (to satisfy due process, notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.").
In this case, the Government provided Wilhite with constitutionally-adequate notice of the pending forfeiture proceedings. First, notice was published three times in USA Today, a newspaper of national circulation. Wilhite does not dispute that the published notice complied with 21 C.F.R. § 1316.75 by describing the property seized, the time and place of the seizure, and the procedure for contesting the forfeiture. Thus, this notice was reasonably calculated to alert Wilhite to the administrative forfeiture proceedings.
Second, written notice of the forfeiture was mailed to the address in Cullman, Alabama, that Wilhite had provided to the DEA for notification purposes. Despite the fact that an earlier DEA mailing to this address had been signed for by Wilhite's sister-in-law, the forfeiture notice was returned to the Government undelivered. Considering that Wilhite has admitted that he received mail at the Alabama address "for years and still receive[s] mail at that address," and that this was the address where he specifically directed the DEA to send any notices of forfeiture, the Government's effort satisfied the requirements of due process. See Dec. of Ricky Dan Wilhite, ¶¶ 4, 14. There is no evidence that Wilhite was incarcerated during the period when the notice was sent, and his failure to leave a forwarding address was the primary reason the Government's mailing did not reach him. Due process did not require the Government to make unreasonable efforts to track Wilhite down, especially when he failed to take simple steps to make sure he could be contacted. See Barrera-Montenegro, 74 F.3d at 660 ("[The] DEA is under no obligation to employ extraordinary means to notify an interested party to a forfeiture proceeding . . .") (emphasis added).
Wilhite's arguments as to the unreasonableness of the Government's written notice are speculative and wholly without merit. His contention that the Government's omission of "#" sign in the address of the Alabama notice may have caused a delivery error is directly refuted by a declaration submitted by the Postmaster for Cullman, Alabama, who states that a "#" sign would be unnecessary (and incorrect) for proper delivery. See Pinkard Dec. at ¶ 4.
Also without foundation is Wilhite's assertion that the Government's written notice was unreasonable because it was sent in expedited fashion, despite the Government's knowledge that Wilhite was in the process of moving from Alabama to California. See Pl.'s Opp'n Br. at pp. 9-10. Wilhite offers no proof that the notice was any faster than usual, and, regardless, the key inquiry is where the notice was sent, not thespeed with which it was mailed. See generally Armendariz-Mata, 82 F.3d at 683.
Several courts have held that notice of forfeiture sent to an individual's residence is inadequate if the government has reason to know that the individual is incarcerated. See, e.g., Armendariz-Mata, 82 F.3d at 683. There is no evidence before the Court suggesting that Wilhite was incarcerated when the government's notice of forfeiture was mailed to the Alabama and California addresses he had provided.
Because the Court determines that the Government's written notice of forfeiture mailed to the Alabama address provided by Wilhite satisfied due process, it is unnecessary for the Court to consider whether thesecond written notice that the Government sent — to an address provided by Wilhite in California — was constitutionally sufficient.
Having concluded that the Government provided adequate notice of the forfeiture to Wilhite, and thus that there was no procedural deficiency in the forfeiture process, the Court lacks jurisdiction to further review the forfeiture of the $9,670 seized from Wilhite. See United States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996). Accordingly, because neither equitable nor monetary relief is available to Wilhite for the three claims in his Amended Complaint, it is ORDERED that the Government's Motion to Dismiss And/Or In the Alternative For Summary Judgment is hereby GRANTED.
It is further ORDERED that Plaintiff Wilhite's Motion for Summary Judgment, which incorporates the same arguments that he asserts in his opposition to the Government's motion, is hereby DENIED.
A Judgment in conformity with this opinion shall be entered herewith.
IT IS SO ORDERED.
FINAL JUDGMENT
This action came on for decision on Defendants' "Motion to Dismiss And/Or In the Alternative For Summary Judgment" before the Court, Eldon B. Mahon, U.S. District Judge, presiding. The issues of this case having been duly considered and an opinion having been rendered, it is ORDERED, ADJUDGED, and DECREED that Defendants' motion for summary judgment is GRANTED, Plaintiff Wilhite's motion for summary judgment is DENIED, and Plaintiff Wilhite take nothing by this action.
IT IS SO ORDERED.