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October 12, 1990


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 Recommendation.

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][1]; Grassia v. Scully, 892 F.2d 16, 19 [2d Cir. 1989]), it is hereby,

ORDERED, that the Report and Recommendation is confirmed and adopted by this Court in all respects.



August 8, 1990.


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 DEA.*fn1

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.


I. Facts

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 Nelson Aff't).

Although the facts surrounding the seizure are in dispute, the contested events are not material to a resolution of the government's motion.

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 Nelson Aff't).

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 2).

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 without justification.

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. ยง 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 any ...

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