The opinion of the court was delivered by: MCAVOY
The plaintiff, LYNG MOTORS & SERVICE, INC., brings this action pursuant to 28 U.S.C. § 1346(a)(2), and alleges that the United States Customs Service acted ultra vires when it charged plaintiff for administrative costs and charges relating to the processing of plaintiff's property that had been the subject of an administrative seizure. The government, in a motion to dismiss, contends that this court lacks subject matter jurisdiction, that the United States is immune from suit, and that Customs' District Director acted within his statutory authority.
The Complaint states that this is a class action, however, no class has been certified.
On May 26, 1994, and May 27, 1994, a total of twelve automobiles bound for plaintiff from Canada were presented to Customs at the Port of Champlain for importation. The vehicles had been presented with fraudulent papers, and were seized pursuant to 19 U.S.C. § 1595a(c) in that they were being imported in violation of the Clean Air Act, 42 U.S.C. § 7401, and the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. §§ 1392 and 1407. The approximate value of the automobiles exceeded $ 160,000.00.
The company that had imported the vehicles for plaintiff was Capital Auto Leasing, Inc. In early June, notices of seizure for each six vehicle import violation were sent to Capital, with a copy of each to plaintiff. On July 6, 1994, plaintiff submitted a petition pursuant to the notices of seizure, 19 U.S.C. § 1618, and 19 C.F.R. Part 171, seeking release of the twelve cars to plaintiff. With the petition, the plaintiff submitted a signed Hold Harmless and Release Agreement in which plaintiff agreed to release the United States and its employees from any claims arising out of the release of the twelve vehicles.
In a letter dated August 22, 1994, the plaintiff's counsel complained to Customs that the amount charged seemed excessive. On August 30, 1994, the plaintiff petitioned Customs for a refund of the entire amount. The petition was denied in a response dated September 2, 1994. The plaintiff sought reconsideration of the decision on September 9, 1994. The defendant denied the plaintiff's request, and the plaintiff filed this action, on January 12, 1995.
The court will first determine whether it has jurisdiction over the subject matter of this action. If the court has jurisdiction, it will then examine the arguments raised by the plaintiff.
A. Subject Matter Jurisdiction
"'Jurisdiction to determine jurisdiction' refers to the power of a court to determine whether it has jurisdiction over the parties to and the subject matter of a suit. If the jurisdiction of a federal court is questioned, the court has the power and the duty, subject to review, to determine the jurisdictional issue." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d Cir. 1993); 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3536 at 535 (2d ed. 1984).
In this case, the government contends that this court lacks subject matter jurisdiction to review an administrative decision to mitigate the penalty imposed relating to a seizure and forfeiture pursuant to 19 ...