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INFANTE v. DEA

August 8, 1996

DAVID INFANTE A.K.A. DAVID GARCIA, Plaintiff, against DRUG ENFORCEMENT ADMINISTRATION (DEA), Defendant.


The opinion of the court was delivered by: LEVY

 LEVY, United States Magistrate Judge:

 Plaintiff David Edison Infante brings this action seeking the return of an automobile seized by the United States Drug Enforcement Administration. By Notice of Motion dated February 28, 1996, defendant moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On March 7, 1996, defendant moved to have the court review the motion to dismiss as a motion to grant judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. By order dated April 19, 1996, the Honorable Frederic Block, United States District Judge, referred the above captioned matter to me to report and recommend on the pending motion. In addition, on June 1, 1996, plaintiff moved to compel production of documents. For the reasons stated below, I respectfully recommend that defendant's motion for judgment on the pleadings be granted. Plaintiff's motion to compel production of documents is denied.

 BACKGROUND

 Plaintiff brings this action against the United States Drug Enforcement Administration ("defendant" or the "DEA") to recover an automobile allegedly seized from him. The facts alleged in plaintiff's complaint and accompanying submissions are as follows:

 On March 19, 1990, the DEA seized plaintiff's 1985 Toyota Celica GTS Convertible at 171-04 Courtney Avenue, Flushing, New York 11358, pursuant to 21 U.S.C. § 881(a)(4). *fn2" On June 26, 1990, the DEA sent a written notice of seizure by certified mail, return receipt requested, to David Garcia at 912 Narragansett Boulevard, Providence, Rhode Island 02905. *fn3" The notice was received on July 3, 1990, as evidenced by the postal receipt card, signed by David Garcia. *fn4" This preprinted notice of seizure informed plaintiff that the DEA had commenced administrative forfeiture proceedings and that he had the right to file a claim of ownership to contest the summary forfeiture in United States District Court and/or to petition the DEA, via an administrative process, to remit his property. The notice also contained citations to the relevant provisions of the United States Code and the Code of Federal Regulations. The notice indicated that the deadline to file a claim of ownership had been extended for 20 days *fn5" and that the deadline to file a petition for remission or mitigation of the forfeiture was 30 days from the date of receipt of the notice.

 On July 24, 1990, plaintiff filed a petition for remission with the DEA. On September 6, 1990, the DEA denied the petition for remission, finding that the petition did not meet the requirements set forth in 28 C.F.R. § 9.5 (b)and (c). *fn6" The denial indicated that the plaintiff could file a request for reconsideration within 10 days, but that only one request for reconsideration would be heard. On September 14, 1990, plaintiff filed a request for reconsideration, and on March 6, 1991, the DEA issued a Declaration of Forfeiture. *fn7" On April 4, 1991 the Department of Justice denied the request for reconsideration and declared the forfeiture final. One year later, on March 31, 1992, plaintiff filed the instant complaint, which alleges that the DEA seized plaintiff's 1985 Toyota Celica GTS Convertible without probable cause and unfairly denied plaintiff the return of his automobile.

 Seizure and Forfeiture Procedure

 In order to understand the issues raised in the defendant's motion, a brief review of the statutory scheme is appropriate:

 All controlled substances, the raw materials used to produce them, any property used to contain them and any conveyance used to transport them, or used to facilitate sale, receipt or possession of them are subject to forfeiture to the United States. 21 U.S.C. § 881(a). For property valued at $ 500,000 or less, the government may follow an administrative forfeiture process, as was done here. 19 U.S.C. § 1607. An administrative forfeiture is commenced by publication for at least three successive weeks of a notice of seizure and an intent to forfeit property. In addition, the seizing agency must send written notice of seizure and information on the applicable procedures to each interested party. 19 U.S.C. § 1607; 21 C.F.R. § 1316.75; 28 C.F.R. § 9.5. A claimant must file a claim of ownership and a bond within 20 days of the first publication of the notice of seizure. 19 U.S.C. § 1608; 21 C.F.R. § 1316.76(a). A timely filing of the claim and bond does not entitle the claimant to possession of the property, but it does stop the administrative forfeiture from proceeding (21 C.F.R. § 1316.76(b)), and the matter is transferred to the United States Attorney. 19 U.S.C. § 1608; 21 C.F.R. § 1316.76(a). The United States Attorney must then institute condemnation proceedings in the district court. 21 C.F.R. § 1316.78.

 If no claim or bond is filed within the 20 days, the property is administratively and summarily forfeited. 19 U.S.C. § 1609(a); 21 C.F.R. § 1316.77(a). A declaration of summary forfeiture under section 1609(a) has the same 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).

 Any person interested in any property which has been seized or forfeited, either administratively or by court proceedings, may file a petition for remission or mitigation of the forfeiture. The petition shall include a complete description of the property, the petitioner's interest in the property and the facts which petitioner believes justify remission or mitigation. 21 C.F.R. § 1316.79(b); 28 C.F.R. § 9.3 and 9.4(a)-(c). The petition must be filed within 30 days of receipt of notice of seizure. 21 C.F.R. § 1316.80(a). Upon receipt of the petition the seizing agency conducts an investigation. 21 C.F.R. § 1316.81; 28 C.F.R. § 9.4(e). The determining official does not consider whether the evidence is sufficient to support the forfeiture, but presumes a valid forfeiture. 28 C.F.R. § 9.5(a) (emphasis added). Notice of denial or granting of the petition is mailed to the petitioner, and a denial must include reasons. 28 C.F.R. § 9.4(h). A request for reconsideration of the denial must be submitted within 10 days of receipt of the denial. The request shall be based on evidence that was not previously considered, and only one request for reconsideration will be heard. 28 C.F.R. § 9.4(i).

 As noted above, the DEA seized plaintiff's car and decided to forfeit the vehicle. In accordance with the above rules, it published a notice in USA Today and sent notice of the seizure to the address at which it had seized the car. However, plaintiff no longer resided there and the notices were returned to the DEA. The DEA located plaintiff in Rhode Island and sent a notice of seizure that extended the deadline for filing a claim of ownership from June 12, 1990 to July 16, 1990. The notice also indicated that a petition for remission could be filed within 30 days of receipt of the notice. Plaintiff chose to pursue the administrative avenue and filed a petition for remission, which the DEA denied. In the instant action, as stated above, plaintiff alleges that the DEA lacked probable cause to seize his automobile.

 DISCUSSION

 Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. It argues that plaintiff lacks standing to challenge the forfeiture and that the DEA is immune to suit under the doctrine of sovereign immunity. In addition, defendant contends that the court lacks subject matter jurisdiction to hear and determine plaintiff's claims and that the complaint ...


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