The opinion of the court was delivered by: Spatt, District Judge.
This matter was referred to United States Magistrate (now
United States District Judge) Carol Bagley Amon pursuant to
28 U.S.C. § 636 and Rule 1 of the Magistrate's Rules for the
Eastern District of New York, to prepare a Report and
Recommendation on the defendants' motions for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c), or in the
alternative, for summary judgment pursuant to Fed.R.Civ.P.
56(c), and on the plaintiff's cross-motion to strike defenses
pursuant to Fed.R.Civ.P. 12(f). On August 8, 1990, Magistrate
Amon rendered her Report, recommending that: (1) the defendant
Drug Enforcement Administration's motion to dismiss for lack of
subject matter jurisdiction be granted; (2) summary judgment be
granted in favor of the defendant United States of America;
and, (3) the plaintiff's cross-motion to strike be granted in
part and denied in part. Thereafter, by letter dated August 15,
1990, the plaintiff timely filed objections to the Report and
The Court having fully considered the Report and
Recommendation, the objections filed thereto, and undertaken
a de novo review of the matter (see 28 U.S.C. § 636[b];
Grassia v. Scully, 892 F.2d 16, 19 [2d Cir. 1989]), it is
ORDERED, that the Report and Recommendation is confirmed and
adopted by this Court in all respects.
REPORT AND RECOMMENDATION TO JUDGE SPATT
Plaintiff brings this action against the United States of
America, the Drug Enforcement Administration (DEA), and Agents
of the DEA to recover moneys seized from him alleging as
jurisdictional predicates 28 U.S.C. § 1331, 28 U.S.C. § 1346,
28 U.S.C. § 1582, 28 U.S.C. § 2680, 19 U.S.C. § 1582, the
Administrative Procedures Act, 5 U.S.C. § 702, 42 U.S.C. § 1983,
and the Fourth and Fifth Amendments to the Constitution
of the United States.
Defendants United States of America and the DEA have moved
for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c)
or, in the alternative, summary judgment pursuant to
Fed.R.Civ.P. 56(c) "for lack of personal and subject matter
jurisdiction." Plaintiff has cross-moved pursuant to
Fed.R.Civ.P. 12(f) for an order striking the first, second,
third, fourth, and eighth defenses of the United States and
This case was referred to me by the Honorable Joseph M.
McLaughlin*fn2 for a Report and Recommendation on these
motions. For the reasons set forth herein, it is respectfully
recommended that the motion of Defendant Drug Enforcement
Administration to dismiss for lack of jurisdiction be granted.
In addition, it is recommended that the complaint against
Defendant United States be dismissed pursuant to Fed.R.Civ.P.
56. It is further recommended that plaintiff's cross-motion to
strike be granted-in-part and denied-in-part.
On February 11, 1987, DEA agents seized $26,400 from
plaintiff at LaGuardia Airport in Queens, New York pursuant to
21 U.S.C. § 881(a)(6). (Sterling Aff't ¶¶ 3, 5; Exh. A to
Although the facts surrounding the seizure are in dispute,
the contested events are not material to a resolution of the
According to the DEA report of the incident, plaintiff was
questioned upon arrival at LaGuardia Airport from Atlanta,
Georgia. He admitted to carrying a large amount of currency
and consented to a search of his garment bag which uncovered
the moneys in his clothing and shoes. Also found on his person
were documents described as drug records bearing the notations
"clips and bullets", "M gun," and "for each bye for guns."
(Exh. A to Sterling Aff't). The currency was seized and
plaintiff was given a receipt. (Exh. A to Nelson Aff't). The
following day, a dog trained to detect the presence of
narcotics gave a positive alert to the money. (Exh. A to
Sterling Aff't). Plaintiff denies freely consenting to a
search of his belongings stating that he was told by the
agents if he refused permission they would arrest him.
(Sterling Aff't ¶ 4). He contends that he told the agents the
money was from lawful sources and denies possessing any drug
records. (Sterling Aff't ¶ 5). Plaintiff was not prosecuted in
connection with this seizure. (Sterling Aff't ¶ 6).
It is undisputed that subsequent to the seizure, DEA sent
plaintiff a Notice of Seizure,*fn3 which plaintiff received
and signed for on March 25, 1987. (Exh. C to Nelson Aff't;
Sterling Aff't ¶ 11). This notice apprised plaintiff, inter
alia, that DEA had commenced administrative forfeiture
proceedings and of the procedures to be followed to challenge
the seizure either at the administrative level or in court.
Specifically, plaintiff was notified that he had thirty days
from the receipt of the notice to seek pardon or mitigation of
forfeiture with DEA's Asset Forfeiture Unit. Plaintiff was
further advised that as an alternative course, he could contest
the forfeiture in United States District Court by filing a
claim of ownership and either a bond or an in forma pauperis
declaration with DEA within twenty days of the first date of
publication of the notice of seizure in the Wednesday edition
of USA Today. The notice also included citations to the
relevant provisions of the United States Code and the Code of
Federal Regulations. (Exh. B to Nelson Aff't). On April 8,
1987, notice of the forfeiture was published in USA Today.
(Exh. D to Nelson Aff't).
It is undisputed that plaintiff neither sought
administrative mitigation of the forfeiture nor filed a claim
and bond with DEA to initiate a court action within the
specified time periods. There being no action taken by the
plaintiff to contest the seizure, on June 11, 1987 DEA's Asset
Forfeiture Unit issued a Declaration of Forfeiture of the
$26,400, which announced that the currency had been forfeited
to the United States. (Exh. E to Nelson Aff't).
Over six months later, on January 25, 1988, plaintiff sent
a letter to the United States Court of International Trade
requesting information concerning the return of the seized
money. (Exh. F to Nelson Aff't). DEA's Forfeiture Counsel
answered this letter on June 13, 1988 and advised plaintiff
that since DEA had not received a response from him as of June
11, 1987, the money was forfeited and the filed closed. (Exh.
G to Nelson Aff't). On October 27, 1988, Robert Dorf,
plaintiff's attorney, sent a "Notice of Claim" to DEA's Asset
Forfeiture Unit demanding immediate return of the money. (Exh.
H to Nelson Aff't). DEA's Forfeiture Counsel responded to this
notice stating that it was being returned because it was both
untimely and defective. The claimed defects were the failure
of plaintiff to sign the notice and post a bond. (Exh. I to
On December 9, 1988, the instant action was commenced. In
his complaint, plaintiff alleges that the United States has
refused to return to him money that was unlawfully seized from
him by agents of DEA without probable cause and in violation
of his civil and constitutional rights. He contends that at no
time did DEA or any other agency commence a forfeiture action
in any court of the United States and that the moneys were
unlawfully seized and converted. Plaintiff seeks judgment in
the exact amount of the moneys seized.
II. The Statutory Provisions Governing Forfeiture
In order to fully address the parties' contentions, it is
necessary to summarize the statutes and regulations governing
administrative and judicial forfeiture.
Section 881(a)(6) subjects to forfeiture "[a]ll moneys . .
. furnished or intended to be furnished by any person in
exchange for a controlled substance in violation of this
subchapter, all proceeds traceable to such an exchange, and
all moneys . . . used or intended to be used to facilitate any
violation of this subchapter." 21 U.S.C. § 881(a)(6). Where
$100,000 or less has been seized pursuant to
21 U.S.C. § 881(a)(6), the currency is subject to the summary forfeiture
provisions of 19 U.S.C. § 1607. See 21 U.S.C. § 881(d);
19 U.S.C. § 1607. In such a case, DEA is required to publish a
notice of seizure and its intention to have the property
forfeited. 19 U.S.C. § 1607; 21 C.F.R. § 1316.75; see also
Application of Williams, 628 F. Supp. 171, 172 (E.D.N.Y. 1986).
In addition, DEA must give written notice of the seizure
together with information on the applicable procedures to any
party that appears to have an interest in the seized currency.
19 U.S.C. § 1607. Within 20 days of first publication, a
person claiming an interest in the currency must file a claim
and a bond of $5,000 or ten percent of the value of the claimed
property (whichever is less, but in no event less than $250) if
he wishes the matter to be heard in the district court.
19 U.S.C. § 1608; 21 C.F.R. § 1316.75-76. Failure to timely file
the notice of claim and bond*fn4 results in forfeiture of the
currency. 19 U.S.C. § 1609(a); 21 C.F.R. § 1316.77. The
petitioner may also seek remission or mitigation of the
forfeiture from DEA. Petitions for remission or mitigation of
forfeiture must be addressed to DEA's Asset Forfeiture Unit or
Special Agent-in-Charge of DEA and executed and sworn to by the
person alleging the interest in the property. 19 U.S.C. § 1618;
21 C.F.R. § 1316.79-80.
I. The Government's Motion to Dismiss
A. The Parties' Contentions
The government contends that plaintiff's claims must be
dismissed as against the Drug Enforcement Administration for
lack of personal jurisdiction and as against the United States
for lack of subject matter jurisdiction. (Defendants' Brief at
The plaintiff concedes that DEA is improperly named.*fn5 He
that the court has jurisdiction over the United States under
the Administrative Procedures Act (APA), 5 U.S.C. § 702, in
conjunction with the general federal question statute,
28 U.S.C. § 1331, or pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 1346(b), depending upon how the court
construes the relief sought in the complaint. Plaintiff
contends as an initial matter that since he is seeking the
exact amount of money seized he is requesting specific
equitable relief properly brought under the APA. Plaintiff
argues in the alternative that if his complaint is construed to
seek money damages, concededly not available under the APA, the
court has jurisdiction under the FTCA.
Plaintiff raises two claims under the APA and Section 1331:
(1) that DEA exceeded its authority in administratively
forfeiting his funds because 19 U.S.C. § 1607 does not include
"money" within its provisions for administrative forfeiture;
and (2) that the administrative forfeiture was a nullity
because he received constitutionally defective notice of the
impending forfeiture in that the notice he received failed to
include a copy of the applicable regulations and the telephone
number of someone who could explain the procedures.
(Plaintiff's Brief at 4-7).*fn6
Under the FTCA, plaintiff asserts that the agents committed
the state law tort of conversion when they seized his money
In response, the government argues that neither the APA nor
the FTCA provides a basis for jurisdiction over plaintiff's
claims. Specifically, the government maintains that sovereign
immunity is not waived under the APA in this case for the
following distinct reasons: (a) the complaint seeks money
damages not cognizable under the APA, (b) the plaintiff has an
adequate remedy in another court; namely, the United States
Court of Claims, (c) the decision to forfeit funds of $100,000
or less is one "committed to agency discretion", and (d) the
forfeiture statute forbids the relief sought. (Defendants'
Brief at 13-14; Defendants' Reply Brief at 12-18).
The government maintains that immunity is not waived
pursuant to the FTCA since DEA's seizure falls within the
exception to the FTCA set forth in 28 U.S.C. § 2680(c), which
provides that the FTCA is inapplicable to "[a]ny claim arising
in respect of the assessment or collection of any tax or
customs duty, or the detention of any goods or merchandise by