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February 22, 2000


The opinion of the court was delivered by: Scheindlin, District Judge.


This opinion represents the final stop on a twisted journey through the netherworld of administrative forfeiture. In 1992, the Drug Enforcement Administration ("DEA") seized plaintiff Felix Hernandez's car in connection with his arrest on federal narcotics charges. Three years later, the DEA and United States Attorney's Office notified Hernandez that they were declining to prosecute a judicial forfeiture proceeding and were returning the car to him. The twist is that, during those three years, the DEA added the car to its fleet and drove it more than 10,000 miles.

Hernandez's wife finally retrieved the car in 1997, but Hernandez, proceeding pro se, now seeks damages for the government's unauthorized use of, unauthorized retention of, and physical damage to the car. Although the government has agreed to pay for the physical damage and to compensate Hernandez for its unauthorized use of his car, the parties dispute the proper method for determining that compensation, as well as whether the government is liable for damages stemming from its retention of Hernandez's car. In addition, Hernandez seeks interest on the cost bond that he had to post in order to file a claim.

Both parties have filed motions for summary judgment. For the reasons set forth below, summary judgment is granted in favor of Hernandez, who is awarded $742.62 for the government's unauthorized use of and physical damage to his car, as well interest on the overstated value of the cost bond. Hernandez is awarded no damages for the retention of his car.*fn1


A. Facts

Felix Hernandez's Toyota Camry sedan 4D Model No. V24E (the "car") was seized in connection with his August 1992 arrest on federal narcotics charges. See Amended Declaration of Steve Kaufman, Senior Attorney with the DEA ("Am. Kaufman Decl.") at ¶ 6 (attached as Exhibit A to the Declaration of Assistant U.S. Attorney Meredith E. Kotler, dated January 24, 2000 ("Second Kotler Decl.")). On September 8, 1992, the DEA commenced administrative forfeiture proceedings against the car, published notice of the seizure in USA Today, and sent notice of the forfeiture proceedings to Hernandez. See id. at ¶¶ 8-10. The notice advised Hernandez that if he wished to contest the forfeiture, he must file a claim and post a bond in the amount of ten percent of the DEA's valuation of the car at the time it was seized.*fn2 See id. at ¶ 10. On October 23, 1992, having received no timely claim or cost bond, the DEA administratively forfeited the car to the United States, and added the car to the government fleet. See id. at ¶ 12-3; see also 19 U.S.C. § 1609 (permitting summary forfeiture in the absence of a timely claim); 21 U.S.C. § 881 (e) (describing options for disposition of forfeited property); 21 C.F.R. § 1316.77 (a) (forfeited property may be retained for official use).

In July 1993, the DEA discovered that the 1992 notice of forfeiture was defective in that both the Vehicle Identification Number ("VIN") and model year were incorrect. See Am. Kaufman Decl. at ¶ 14, As a result, the DEA rescinded the forfeiture and removed the Camry from the government fleet. See id. at ¶¶ 14-15. The government added 10,298 miles to the car. See id. at ¶ 15.*fn3

On August 18, 1993, the DEA recommenced forfeiture proceedings against the car and again published and sent notice to Hernandez. See id. at ¶¶ 16-17. Having failed to receive a timely claim, the DEA forfeited the car again on October 1, 1993. See id. at ¶ 19. Three days later, however, a claim and bond were filed by Trevor Reid, Esq. on behalf, of Hernandez. See id. at ¶ 20. As a result, on October 12, 1993, the forfeiture was rescinded. See id. at ¶ 22.

The matter then was referred to the United States Attorney's Office for initiation of judicial forfeiture proceedings. See id. at ¶ 21. By letter dated October 26, 1995, the United States Attorney advised Hernandez that prosecution of the judicial forfeiture proceeding had been declined, and the car could be retrieved. See id. at ¶ 24. For the next year Hernandez and the DEA disputed the issue of storage charges. See id. at ¶¶ 24-25. On October 1, 1996, the DEA agreed that it would waive storage charges and that Hernandez could reclaim the car. Id. at ¶ 26. Hernandes refused to accept the car unless the DEA agreed to reimburse him for its loss in value. See id. at ¶ 27, Finally, having received notice that the car would be considered abandoned, Hernandez' wife retrieved the car in July 1997. See id. at ¶ 29.

B. Procedural History

In late 1996, Hernandez filed a Petition, pursuant to Rule 41(c) of the Federal Rules of Criminal' Procedure, seeking the return of his car and damages. See Complaint, Claim for Property Damage(s) in the Amount of $19,650.00 Pursuant to the Federal Tort Claim Act ("FTCA") 28 U.S.C. § 1346 ("Complaint") at 2 (explaining that Hernandez initially filed a "Petition for Return of Property in the full and fair market value pursuant to Civil Equitable Proceeding or Rule 41(e) of Federal Rules of Criminal Procedure"); see also Hernandez v. United States Drug Enforcement Administratio No. 97 Civ. 0429 (SAS). By Stipulation and Order dated August 11, 1997, the motion was dismissed without prejudice to allow Hernandez to pursue his administrative remedies. See Complaint at 2.

On August 27, 1997, Hernandes filed a Standard Form 95, Claim for Damage, Injury, or Death seeking $19,650 for property damage. See id. at 3. Specifically, Hernandez sought (1) $14,300 for loss in the property value of his car; (2) $350 for damage to the side mirror; and (3) $5,000 for "Hardship as a result of the Unconstitutional use of property." See Declaration of Steve Kaufman, Senior Attorney with the DEA, dated November 24, 1999 ("Kaufman Decl.") at ¶ 12 (attached as Exhibit A to the Declaration of Assistant U.S. Attorney Meredith F. Kotler, dated November 24, 1999 ("First Kotler Decl.")). By letter dated June 4, 1998, the DEA offered Hernandez $1,075 in full and final settlement of his claim. See Am. Kaufman Decl. at ¶ 31. Hernandez rejected this offer. See id. at ¶ 38.

On June 15, 1999, Hernandez filed the instant action, seeking $19,650 in damages, based on the loss in retail value of his car over time, damage to the car's side mirror, and "punitive damages for cost and expenses incurred due to hardships resulting from DEA's unconstitutional use, and unnecessary long retention of property without Due Process." See Complaint at 4.


Although the facts of this case are relatively simple, the legal analysis is unexpectedly complex. First, the Court must establish a method by which it had jurisdiction to hear Hernandez's complaint. Then, the Court must determine, within the confines of that jurisdiction, what it can award Hernandez for his loss. Because this case does not present genuine issues of material fact, resolution at the summary judgment stage is appropriate. See Mitchell v. Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir. 1999) ("While genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law. A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial.") (quotation marks and citations omitted).

A. Jurisdiction

Establishing jurisdiction in this case is no easy matter. Hernandez moves this Court pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยง 1346, but that avenue is unavailing. Because Hernandez is proceeding pro se, this Court will look for other methods of establishing jurisdiction. After an exhaustive search, ...

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