C. Lack of Subject Matter Jurisdiction
In the alternative, defendant argues that plaintiff has failed to meet his burden of establishing that this court has subject matter jurisdiction over his claims. Defendant asserts that the court lacks jurisdiction to review the merits of an administrative forfeiture once it has become final.
As Sterling points out, although the APA waives DEA immunity from suit in some situations, it does not create a jurisdictional basis for suit. Sterling, 749 F. Supp. at 1209. Thus, even if sovereign immunity had been waived in this case, subject matter jurisdiction must be separately established by the claim. Id.
As a general rule, "a federal court lacks jurisdiction to review the merits of administrative forfeiture decisions once the administrative process has begun." United States v. One 1987 Jeep Wrangler Auto., 972 F.2d 472, 480 (2d Cir. 1992). See also Lopes v. United States, 862 F. Supp. 1178, 1184 (S.D.N.Y. 1994). Moreover, the decision whether to remit or mitigate a forfeiture is solely within the domain of the forfeiting agency, and once the agency has made a determination on the petition for remission or mitigation, courts generally lack the power to review that decision. Lopes, 862 F. Supp. at 1184. See also Schrob v. Catterson, 948 F.2d 1402, 1412 n. 9 (3d Cir. 1991) ("Generally, once the government has made an administrative determination on the petition, courts have no power to review that decision"); Averhart v. United States, 901 F.2d 1540, 1543-44 (11th Cir. 1990) ("federal common law consistently has held that federal courts lack jurisdiction to review the merits of a forfeiture decision that the Secretary has reached in the exercise of his discretion"); La Chance v. DEA, 672 F. Supp. 76, 79 (E.D.N.Y. 1987) ("remission of a forfeiture is a matter of grace and discretion delegated solely to the exclusive authority of the administrative agency").
While it is true that the court generally lacks jurisdiction to review the merits of an administrative forfeiture, the Second Circuit has rejected the view that all DEA administrative forfeitures are immune to judicial review. Onwubiko v. United States, 969 F.2d 1392, 1398 (2d Cir. 1992).
In Onwubiko, the Second Circuit held that, although an administrative forfeiture removes the res from the district court and, therefore, "typically marks an end to the court's in rem jurisdiction," an exception to this general rule applies "if the property is taken accidentally, fraudulently, or improperly." Id. at 1398. See also United States v. Millan-Colon, 836 F. Supp. 994 (S.D.N.Y. 1994). Put another way, "if an administrative forfeiture is procedurally deficient, the court has jurisdiction to correct the deficiency." Onwubiko, 969 F.2d at 1398 (citing The Rio Grande, 90 U.S. (23 Wall.) 458, 465 (1874). Such review is limited to determining whether an agency has followed proper procedural safeguards. One 1987 Jeep Wrangler Auto., 972 F.2d at 480; Hong v. United States, 920 F. Supp. 311, 315 (E.D.N.Y. 1996).
Although never stated explicitly within the decision, the procedural deficiency in Onwubiko appeared to be the "insurmountable obstacle" that filing a $ 250 bond presented to Onwubiko, who was in jail and from whom the DEA had seized all currency.
However, the allegation of a lack of due process in this case does not challenge the adequacy of the DEA's forfeiture procedure. Instead, it challenges the substantive legal basis of the seizure. Thus, the exception allowing judicial review for a procedurally deficient forfeiture does not apply in this case.
Courts have also repeatedly found federal question jurisdiction over forfeiture cases where the plaintiff asserts a violation of the Fifth Amendment. In Sterling, the court held that even if direct challenges to forfeiture proceedings are immune to judicial review, challenges to the constitutional sufficiency of the procedures are not beyond the court's jurisdiction. Sterling, 749 F. Supp. at 1208 (finding jurisdiction under 28 U.S.C. § 1331 where plaintiff made a Due Process claim, arguing that the notice was inadequate because it was too difficult to understand). See also United States v. Willis, 787 F.2d 1089 (7th Cir. 1986) (jurisdiction rested on plaintiff's Due Process claim that notice was insufficient); Montgomery v. Scott, 802 F. Supp. 930 (W.D.N.Y. 1992) (basing jurisdiction on plaintiff's challenge to the Due Process sufficiency of the notice procedure). In addition to Fifth Amendment claims, the Supreme Court has held that administrative forfeitures are open to judicial review under the Eighth Amendment prohibition against excessive punishment. Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993).
A notice claim rests on the assertion that the process was constitutionally insufficient because it failed adequately to alert a plaintiff to the opportunity to contest the forfeiture before it became final. The court, therefore, has jurisdiction over these claims because the plaintiff had no previous opportunity to be heard. See Sarit v. DEA, 987 F.2d 10, 16-17, (1st Cir.) ("Whereas most challenges to forfeiture would be foreclosed by a plaintiff's failure to utilize the mechanism for obtaining judicial relief provided in the forfeiture statute and regulations, courts have entertained challenges to the adequacy of notice, reasoning that the mechanism is not properly available to a plaintiff who is not properly notified of the pending forfeiture"). Similarly, a plaintiff cannot pursue an Eighth Amendment claim of excessive punishment before entry of a final forfeiture judgment. The court must have subject matter jurisdiction over those two types of claims in order to prevent the foreclosure of all avenues of justice to the plaintiff who did not know about the seizure or who was subject to an exorbitant punishment for his crime.
However, plaintiff can make no such argument, and plaintiff's complaint makes neither of these claims. Instead, plaintiff raises only a Fourth Amendment claim, asserting that the DEA did not have probable cause to seize his vehicle. If plaintiff had not received notice of the seizure, a collateral attack on the forfeiture would have been plaintiff's first opportunity to be heard. Then, plaintiff could have challenged the notice procedures and the actual seizure of his property. But because plaintiff had an opportunity during the forfeiture proceedings to have a judicial hearing on probable cause, a collateral attack based only on a Fourth Amendment claim is not permitted. Willis, 787 F.2d at 1093-94 (Fourth Amendment claim dismissed where plaintiff's Fifth Amendment claim failed on summary judgment); Taft v. United States, 824 F. Supp. 455 (D. Vt. 1993) (suggesting that court would have lost jurisdiction over Fourth Amendment claim if Fifth Amendment claim had been insufficient).
Here, plaintiff could have challenged the legality of the seizure by filing a claim and bond with the DEA and forcing the government to institute condemnation proceedings. However, plaintiff chose to pursue an administrative remedy. When plaintiff chose not to file a claim and bond, he implicitly consented to a summary forfeiture. That forfeiture has "the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States." 19 U.S.C. § 1609(b). Thus, "because [plaintiff] chose not to contest probable cause initially, he has waived his right to complain now." Willis v. United States, 787 F.2d 1089, 1093 (7th Cir. 1986). See also Hong, 920 F. Supp. at 317 ("A forfeiture may not be challenged in district court on any basis which could have been raised in an administrative proceeding").
In sum, plaintiff, having pursued his administrative remedy by filing a petition for remission, and having failed to file a claim and cost bond, is deemed to have elected to forego judicial review of the forfeiture. See LaChance, 672 F. Supp. at 80 ("plaintiff has elected an administrative remedy instead of a judicial proceeding, and this operates to foreclose his application before the court.") Moreover, because plaintiff's claims do not allege procedural deficiencies, his claims do not fall within the recognized exception described above. I accordingly recommend that his complaint be dismissed for lack of subject matter jurisdiction.
For the reasons stated above, the undersigned respectfully recommends that plaintiff's claim for equitable relief be dismissed. In addition, plaintiff's motion to compel production of documents is denied as moot.
Objections to this report and recommendation must be filed with the Clerk of the Court, with a courtesy copy to the chambers of the Honorable Frederic Block, within ten (10) days to preserve appellate review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
ROBERT M. LEVY
United States Magistrate Judge
Dated: Brooklyn, New York
August 8, 1996