Opinion
No. 02 Civ. 3076 (TPG).
August 23, 2003
OPINION
Plaintiff Angel Aquasviva brings this action for the return of $16,187 in United States currency seized by and forfeited to defendant United States Department of Justice Drug Enforcement Administration ("DEA"). The DEA moves to dismiss this claim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for summary judgment on the ground that this court lacks subject matter jurisdiction.
Defendant's motion is granted.
Facts
On January 2, 2002, Aquasviva's home was burglarized. The complaint alleges that when Aquasviva returned home, a police officer from the New York City Police Department asked Aquasviva if he had any cash in his home. Aquasviva escorted the officer to where $16,187 in United States currency was kept. The cash was hidden in a black plastic bag and mixed with coffee grounds. At this time the money was seized, and Aquasviva was given a voucher. This constitutes the funds which are the subject of the present action. Subsequently, the money and the bag tested positive for controlled substances. But Aquasviva has not been charged with any crime.Defendant attaches an affidavit from Merri Hankins of the DEA Forfeiture Counsel's office explaining that after approximately 30 days, on February 1, 2002, the DEA "adopted" the seizure from the New York City Police Department. Hankins states that, after a thorough review of the evidence, the DEA decided to effect civil forfeiture against the funds.
The DEA subsequently commenced forfeiture proceedings on the monies by issuing a notice of seizure on March 19, 2002, which was received by both plaintiff and his attorney, Orlando Balcacer, Esq., on March 26, 2002. Notice of seizure was also published in The Wall Street Journal on three successive Mondays: April 1, 8 and 15, 2002.
As will be described more fully later in this opinion, under the applicable law, a person against whom forfeiture proceedings are brought may file a claim contesting the forfeiture with the Forfeiture Counsel of the DEA within the time specified in the notice of seizure. If this is done the administrative forfeiture proceedings are halted, and the matter is transferred to the United States Attorney, who must institute forfeiture proceedings in court.
If the person fails to timely file a claim, the property is administratively forfeited. However, the person may petition for remission or mitigation of forfeiture within 30 days of receipt of the notice.
The notice of seizure, which was sent to plaintiff, advised him, among other things, of his right to contest the forfeiture and of his right to petition for remission or mitigation. In connection with the former, the notice said that the claimant must file a claim with the Forfeiture Council by April 23, 2002, in order to contest the forfeiture.
On April 4, 2002, plaintiff's attorney Balcacer had a telephone conversation with Robert Porzeinski, a senior attorney with the DEA. In support of the present motion, defendant has submitted the affidavit of Porzeinski. Porzeinski states that he explicitly informed Balcacer that, in order to contest the forfeiture of the funds, he needed to comply with the procedures set forth in the notice of seizure. Porzeinski asserts that he told Balcacer that the DEA needed to receive any claim contesting forfeiture by the deadline set forth in the notice of seizure, and that there would be no extensions.
Balcacer has submitted no affidavit. In his memorandum opposing the motion, however, he alleges that he told Porzeinski that in addition to filing a petition for mitigation or remission, Balcacer would also be filing a claim contesting the forfeiture of the funds. Balcacer alleges in the memorandum that he informed Porzeinski of his intention to file a claim contesting seizure in the United States District Court for the Southern District of New York by the deadline specified in the notice of seizure. Balcacer states that he also mailed a claim contesting the forfeiture to the DEA's Forfeiture Counsel on April 10, 2002. However, Balcacer has not submitted a copy of this alleged claim. Porzeinski states in his affidavit that the DEA never received such a claim.
On April 23, 2002, the date by which the notice of seizure required that a claim contesting the forfeiture be filed with the DEA's Forfeiture Counsel, plaintiff instead filed a complaint in the United States District Court for the Southern District of New York. Plaintiff did not actually serve the DEA until July 30, 2002.
The DEA's Forfeiture Counsel received a letter petitioning for remission or mitigation of forfeiture from plaintiff on April 17, 2002. On April 24, 2002, the DEA sent a letter notifying plaintiff that the petition was defective. Plaintiff received this notice on May 8, 2002. The next day, on May 9, 2002, the DEA received a corrected petition for remission or mitigation.
On June 6, 2002, the DEA forfeited the funds because they had not received a claim contesting the forfeiture from Aquasviva.
As of this time plaintiff had pending his petition for remission or mitigation. He also had pending his lawsuit in the District Court. Apparently, the DEA was unwilling to address the petition for remission or mitigation while an action was pending in the district court. To remedy this, plaintiff discontinued his action on March 21, 2003.
After an investigation including interviews of Aquasviva and others, the petition for remission or mitigation was denied on September 24, 2003. The DEA's Porzeinski issued the decision letter, which stated:
Investigation has revealed that probable cause exists to believe the seized currency was furnished or intended to be furnished in exchange for a controlled substance. . . . Specifically, the subject currency was found in the Petitioner's home hidden in a black plastic bag and mixed with coffee grinds. When asked why the currency was mixed with coffee grinds, the Petitioner had no explanation. The currency and plastic bag subsequently tested positive in an Ion scan for controlled substances.
The decision letter noted that the petitioner asserted that the money was earned from his business. But, during the subsequent investigation he changed his story, claiming that $12,000 of the forfeited money actually belonged to his two cousins. The decision letter stated:
In support of the Petitioner's assertion of a legitimate source of his portion of the forfeited currency, he indicated that he was the owner of an upholstery business and earned approximately $4000 to $5000 per month. However, a review of the 1999 and 2002 income tax returns provided by the Petitioner indicated that the Petitioner only reported $13,980 and $5,194, respectively, each year. The Petitioner did not offer any additional documents to support a legitimate source for the forfeited currency. The Petitioner's two cousins were also interviewed concerning their interest in the forfeited currency. These cousins indicated that they were businessmen in the Dominican Republic and frequently traveled to New York. They also indicated that they gave the Petitioner $12,000 for safekeeping. The cousins did not offer any documents in support of their assertion of a legitimate source for the forfeited currency.
Plaintiff received the decision letter on October 14, 2003. He did not request reconsideration, although he had a right to do so.
On October 23, 2003, plaintiff requested that the court re-open the action that had been discontinued. The case was re-opened on December 10, 2003.
The Current Motion
In February 2004, defendant filed the motion now before the court. Defendant asserts that a claim contesting forfeiture was not filed with the Forfeiture Counsel in a timely fashion, thus allowing the property to be forfeited. Defendant argues that this meant that plaintiff had no right to bring a judicial action, and that therefore the court lacks subject matter jurisdiction over the present action.
As to the plaintiff's position, plaintiff is not suing to review the denial of his petition for remission or mitigation. He is suing solely to contest the forfeiture in its entirety. As described, his lawyer makes an unsworn statement that a claim contesting forfeiture was sent to the Forfeiture Counsel, but there is no affidavit to this effect and no copy of such a letter has been furnished. But, plaintiff's main argument is that he has a right to sue irrespective of the procedures required by law. He contends that he gave the DEA notice of his claim contesting forfeiture in the district court and that this was sufficient. He alleges that the reason the DEA delayed reviewing the petition for remission or mitigation was because a complaint was pending in this court, and that this demonstrates defendant's acquiescence in that this court has jurisdiction.
Discussion
A summary of much of the relevant law relating to the kind of civil forfeiture involved in the present case is contained inDawson v. Drug Enforcement Administration, 927 F. Supp. 748, 751-752 (S.D.N.Y. 1996). As Dawson explains, all funds traceable as proceeds of, or intended for use in, a violation of federal narcotics laws are subject to forfeiture by the United States. 21 U.S.C. §§ 881(a) and 881 (d). Written notice of seizure and the intent to forfeit the property together with information on the applicable procedures shall be sent to each party who appears to have interest in the seized article. 19 U.S.C. § 1607; 21 C.F.R. § 1316.77(a). A claim contesting the forfeiture may be filed with the appropriate official after seizure, and if this is done, it must be no later than the deadline set forth in the notice. 18 U.S.C. § 983(a)(2). If such a claim is not timely filed, the property will be summarily forfeited. 19 U.S.C. § 1609; 21 C.F.R. § 1316.77. However, a proper and timely filing stops the administrative process, and the matter is transferred to the United States Attorney who then must institute judicial forfeiture proceedings in the United States District Court. 21 C.F.R. §§ 1316.76(b) and 1316.78.
Once the administrative process has begun — with the notice of seizure — the res is under the authority of the agency. If the claimant files a proper and timely claim contesting forfeiture, then the jurisdiction over the res will pass to the district court when the United States Attorney commences the forfeiture proceeding in court, as he must. But if no such claim is filed, the property is forfeited in the administrative process. The Government has no need to resort to the court, and the court will not acquire jurisdiction over the res. A district court generally lacks subject matter jurisdiction to review the merits of an administrative forfeiture decision. United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 479-480 (2d Cir. 1992);Dawson, 927 F. Supp. at 752. The court has, however, limited jurisdiction to review a procedurally defective administrative agency decision. 1987 Jeep, 972 F.2d at 480; Dawson, 927 F. Supp. at 752. Such review is limited to determining whether the agency followed the proper procedural safeguards when it declared the property summarily forfeited.
In dealing with the motion now before this court, the court holds that it lacks jurisdiction over the subject matter of the present action. Since plaintiff did not file a proper or timely claim contesting forfeiture, the forfeiture occurred and became final in the administrative process. If plaintiff had duly filed such a claim, there would have been a court action, commenced by the Government, dealing with the merits of the forfeiture. Under the scheme established by Congress, this is the exclusive means by which a claimant can have such a judicial determination as to the forfeiture's validity. A federal district court has no jurisdiction to entertain a lawsuit which is brought by a claimant wholly apart from the procedure established by Congress.
No extended discussion is necessary as to plaintiff's arguments that he gave sufficient notice to the DEA by filing his action and that the DEA somehow acquiesced in the bringing of this action, because it delayed reviewing the petition for remission or mitigation while the action was pending. As already described in detail, the plain fact is that plaintiff failed to follow the prescribed route to a judicial determination, and he cannot now substitute some other method of proceeding.
Conclusion
The motion of defendant to dismiss the action for lack of subject matter jurisdiction is granted.