by the customs laws relating to forfeiture. 21 U.S.C. § 881(d). Pursuant to DEA regulations and the customs laws in effect in 1994, the federal government may institute administrative forfeiture proceedings against property valued at $ 500,000 or less by sending written notice to all interested parties and publishing notice of the seizure and intent to forfeit the property. 19 U.S.C. § 1607; 21 C.F.R. § 1316.77(a). Once the federal government properly commences a civil forfeiture proceeding, the claimant has the opportunity to choose the forum of adjudication. See 28 C.F.R. §§ 9.1-9.7. A claimant can choose a judicial forum by filing a claim and cost bond within twenty days of the first date of publication. 19 U.S.C. § 1608; 21 C.F.R. § 1316.78. A timely filing of the claim and cost bond stops the administrative process, see 21 C.F.R. § 1316.76(b), and the matter is transferred to the United States Attorney who then must institute judicial forfeiture proceedings. 21 C.F.R. § 1316.78.
If the claimant fails to timely file a claim and cost bond, the property is administratively forfeited at the end of the twenty day period. 19 U.S.C. § 1609; 21 C.F.R. § 1316.77. However, a claimant may thereafter request "remission" and/or mitigation of the forfeiture by filing a petition within thirty days of receipt of notice. 21 C.F.R. § 1316.80(a). With regard to property deemed forfeited, the DEA has broad discretion in deciding whether to grant a petition for mitigation or remission. 28 C.F.R. § 9.5. Here, in the Notice of Forfeiture, the DEA also provided that plaintiff could file a petition to proceed in forma pauperis in lieu of a cost bond.
This statutory and regulatory scheme affords the claimant sufficient notice and opportunity to test the legality of the seizure in the forfeiture proceeding. See United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 479 (2d Cir. 1992); In re Harper, 835 F.2d 1273, 1274 (8th Cir. 1988). However, an administrative forfeiture removes the res from the district court. See Onwubiko v. United States, 969 F.2d 1392, 1398 (2d Cir. 1992); United States v. Ten Thousand Dollars in United States Currency, 860 F.2d 1511, 1513 (9th Cir. 1988). As a result, once the administrative process has begun, a federal district court generally lacks subject matter jurisdiction to review the merits of an administrative forfeiture decision, see Onwubiko, 969 F.2d at 1398; 1987 Jeep, 972 F.2d at 479; In re Matter of Sixty-Seven Thousand Four Hundred Seventy Dollars ($ 67,470.00), 901 F.2d 1540, 1543 (11th Cir. 1990); United States v. One Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir. 1977); United States v. Pinilla, 1996 U.S. Dist. LEXIS 3858, No. 93 CR. 341 (PKL), 1996 WL 145953, at *2 (S.D.N.Y. Apr. 1 1996), including constitutional challenges to the search and seizure. See Linarez v. Department of Justice, 2 F.3d 208, 213 (5th Cir. 1993).
The Court does, however, have limited jurisdiction to review a procedurally defective administrative agency decision. See Onwubiko, 969 F.2d at 1398; 1987 Jeep, 972 F.2d at 480; Scarabin v. Drug Enforcement Administration, 919 F.2d 337, 338 (5th Cir. 1990); One 1977 Volvo 242 DL v. United States, 650 F.2d 660, 662 (5th Cir. 1981); United States v. Pinilla, 1996 U.S. Dist. LEXIS 3858, No. 93 CR. 341 (PKL), 1996 WL 145953, at *2,3 (S.D.N.Y. April 1, 1996), Clow v. Nelson, 579 F. Supp. 981, 983 (W.D.N.Y. 1984). Such review, however "is limited to determining whether the agency followed the proper procedural safeguards when it declared [claimant's] property summarily forfeited," 1987 Jeep, 972 F.2d at 480 (quoting Scarabin, 919 F.2d at 338), or whether the agency refused to consider a request that it exercise its discretion. See Onwubiko, 969 F.2d at 1398; Matter of $ 67,470.00, 901 F.2d at 1544.
Where, as here, plaintiff does not dispute that she actually received the DEA's Notice of Forfeiture on May 3, 1994, that notice was properly given, and that she failed to file a claim, cost bond, or in forma pauperis petition within twenty days - or a petition for remission and/or mitigation within thirty days - of receipt of that notice, plaintiff has failed to state a cognizable claim that defendants failed to follow the proper procedural safeguards or violated her constitutional rights to due process.
See Lopes v. United States, 862 F. Supp. 1178, 1184 (S.D.N.Y. 1994).
Nor has plaintiff alleged any facts affording a rational inference that the government created an "insuperable obstacle" to her right to contest her claims in federal court by, for example, seizing all of her assets with knowledge that she would thereby be precluded from contesting the forfeiture in federal court due to her inability to file a cost bond. Onwubiko, 969 F.2d at 1399 (quoting Lee v. Thornton, 538 F.2d 27, 33 (2d Cir. 1976)). The Notice of Forfeiture clearly advised plaintiff that she could proceed without a cost bond by filing a timely in forma pauperis application. This is especially true here since plaintiff drew a bank check for over $ 5,000 payable to the DEA and Department of Justice after the forfeiture.
In any event, even if financially unable to post a bond, plaintiff had ample opportunity to challenge the forfeiture in court. Although not statutorily required to do so the DEA in its discretion gave plaintiff the option of filing a petition to proceed in forma pauperis in lieu of posting a cost bond, thereby eliminating any financial constraints upon plaintiff's ability to choose a judicial forum. Nonetheless, after receiving proper notice, plaintiff failed to timely file either a claim with a bond or an in forma pauperis petition, or a petition for remission and/or mitigation. This resulted in the money being administratively forfeited.
It follows that this Court lacks jurisdiction to grant plaintiff's claim for return of her currency, whether construed liberally to be a claim asserted under the Tucker Act, 28 U.S.C. § 1346, predicated upon an alleged abuse of discretion in denying her untimely petition for remission, or a claim asserted pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), alleging that the DEA agents violated plaintiff's constitutional rights. See Onwubiko 969 F.2d at 1399; Linarez v. Department of Justice, 2 F.3d 208, 213 (5th Cir. 1993); United States v. Pinilla, 1996 U.S. Dist. LEXIS 3858, 1996 WL 145953 at *2, Reinoso v. Drug Enforcement Administration, 1994 U.S. Dist. LEXIS 18054, No. 93 CIV 1516 (KTD), 1994 WL 708139, *3 (S.D.N.Y. December 19, 1994).
For the reasons set forth above, defendants' motion for summary judgment shall be and hereby is granted. The Clerk of Court is directed to enter judgment and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
June 11, 1996
John E. Sprizzo
United States District Judge