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PEREZ v. UNITED STATES

December 20, 1993

BARBARA PEREZ, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.


Lasker


The opinion of the court was delivered by: MORRIS E. LASKER

LASKER, D.J.

 Barbara Perez sues the United States to recover items of jewelry seized from her apartment by Drug Enforcement Administration ("DEA") agents, and for damages. Perez alleges three causes of action: replevin, conversion and liability under the Federal Tort Claims Act. The Government moves to dismiss the suit on the grounds of lack of subject matter jurisdiction and failure to state a claim and, in the alternative, moves for summary judgment.

 I.

 On October 22, 1991, Barbara Perez's apartment was searched by DEA agents in a pre-dawn raid of several suspected drug distribution sites used by convicted drug dealer David Claudio, the boyfriend of Perez's sister. During the raid, numerous items were taken from Perez's apartment, including jewelry valued at $ 9,520.

 On November 18, 1991, a Notice of Seizure was issued by the DEA and, according to the Government, was sent to Perez by certified mail. However, the Government has not produced a signed receipt. The Notice, in bold type, detailed two procedures for seeking release of seized property: to request remission or mitigation of the forfeiture, a claimant must submit a petition for "remission or mitigation" to the DEA within 30 days of the Notice of Seizure; in addition to or in lieu of the petition, a claimant may contest the forfeiture in the United States District Court by filing a claim of ownership and a cost bond, in the amount of 10 percent of the value of the items seized, with the DEA within 20 days of the publication of the Notice of Seizure in a specified newspaper. The DEA is required by law to publish its intention to forfeit property. 21 C.F.R. § 1316.75 (1993).

 The DEA also mailed a copy of the Notice of Seizure to David Claudio in fulfillment of its legal requirement to notify anyone who may have a claim to the seized property. The Government produced a signed receipt as proof that Claudio received the Notice.

 Pursuant to 21 C.F.R. § 1316.77(a), *fn1" on January 2, 1992, the DEA issued a Declaration of Forfeiture on the ground that no claimant had contested the forfeiture.

 In her affidavit opposing the present motion, Perez states that she did not receive a copy of the Notice of Seizure until May 1992, when Claudio forwarded to her the copy he had received. During the first week of June, Perez brought the Notice to Barry Levin, Claudio's attorney.

 On June 24, 1992, Levin submitted a letter to DEA petitioning the return of Perez's property, but did not file a notice of claim and a cost bond to contest the forfeiture in the United States District Court.

 On July 29, 1992, DEA denied Perez's petition as untimely and notified her that the property had already been disposed of pursuant to 21 C.F.R. § 1316.80(a), which authorizes the placement of property "in official service or sold as soon as it is forfeited."

 On October 21, 1992, Perez filed this action. She seeks the return of her property or $ 50,000 in compensation for the value of the property if it cannot be returned. She also sues for damages under the Federal Tort Claims Act.

 The Government moves to dismiss on the grounds that (1) Perez failed to file a notice of claim and cost bond and cannot now sue in district court, and (2) the Federal Tort Claims Act does not authorize suits for claims based ...


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