The opinion of the court was delivered by: BONSAL
On November 9, 1966, following the arrest of plaintiff's daughter by Federal narcotics agents for an alleged violation of the Federal narcotics laws, plaintiff's 1964 Chevrolet Convertible (the automobile) was seized pursuant to 49 U.S.C. § 782.
Subsequent to her arrest, plaintiff's daughter was told that the automobile had been seized and to contact an attorney to learn her remedies for getting it back.
On November 10, 1966, the automobile was placed in storage and was subsequently appraised at $1750.00.
On November 14, 1966, plaintiff was interviewed at her home by narcotics agents and was then informed by them that her daughter had been arrested on a charge of unlawful sale of narcotic drugs and that her automobile had been seized for unlawful use to facilitate the sale of narcotic drugs. She was told to contact an attorney for information as to how she could get the car back.
Acting pursuant to 19 U.S.C. § 1607
and 26 C.F.R. § 153.4
(now 21 C.F.R. § 330.5), the District Supervisor of the Bureau of Narcotics placed an advertisement in the New York Post on November 22, 29, and December 6, 1966, which stated:
"TREASURY DEPARTMENT, BUREAU OF NARCOTICS
Notice is hereby given that on 11/9/66, one 1964 Chevrolet Impala Motor #41867T-245660, Serial # same, was seized in the City of New York for violation of the Act of August 9 1939, as amended (49 USC 781-788). Any person claiming an interest in said property must file with the District Supervisor, 90 Church St., New York, N.Y., 10007, a claim and cost bond in the sum of $250.00, with sureties to be approved by said District Supervisor, on or before December 12, 1966, otherwise the property will be disposed of according to law, George M. Belk, District Supervisor."
On December 9, 1966, the First National City Bank, mortgagee of the automobile, filed a petition for remission or mitigation of the forfeiture of the automobile in which it alleged a security interest of $1241.89.
On December 12, 1966, the automobile was forfeited to the United States in a summary administrative forfeiture proceeding, pursuant to 19 U.S.C. § 1609
as no claims had been filed within the allotted period.
On or about February 20, 1967, the First National City Bank elected to have the automobile sold at auction, with the proceeds up to the security interest remitted to it. On March 4, 1967, the automobile was sold at public auction for $750.00, and, after deducting storage and advertising expenses, the United States remitted $645.00 to the First National City Bank, of which $500.00 was credited to plaintiff.
On November 8, 1968, plaintiff commenced this action against the United States and William P. Durkin, in his capacity as Regional Director, Bureau of Narcotics and Dangerous Drugs, seeking to declare, among other things, the administrative forfeiture of the automobile null and void, to recover damages in the amount of $5300.00 or, in the alternative, awarding damages against defendants in the amount of $3600.00 and directing defendants to return the automobile to plaintiff. Plaintiff alleges that the Federal agents who seized the automobile knew she was the owner and were aware of her address; that the notice by publication was inadequate, null, and void; that in fact she had no notice of the forfeiture proceeding; and that the administrative forfeiture proceeding deprived her of her property without due process of law. Jurisdiction is asserted under 28 U.S.C. § 1346(a)(2), and other sections.
Defendants move for summary judgment, dismissing the complaint for lack of subject matter jurisdiction. Plaintiff cross-moves for summary judgment for ...