Wiren v. Eide

Citation542 F.2d 757
Decision Date22 June 1976
Docket NumberNo. 74-1169,74-1169
PartiesJohn E. WIREN, Plaintiff-Appellant, v. Donald EIDE, as District Director of the Bureau of Customs, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard D. Emery (argued), of The Northwest Washington Legal Services, Seattle, Wash., for plaintiff-appellant.

Charles Mansfield, Asst. U. S. Atty. (argued), Seattle, Wash., for defendants-appellees.

Before CHAMBERS, KOELSCH and KILKENNY, Circuit Judges.

KOELSCH, Circuit Judge:

On his return from Canada in February, 1972, appellant Wiren and the three passengers in his 1970 Volkswagen were stopped and searched at the Blaine, Washington, border station. When a body search of one of the passengers revealed a small quantity of hashish, customs agents seized Wiren's car as a vehicle used to transport contraband into the United States. 1 Immediately thereafter, Wiren claiming he had no knowledge of the presence of hashish petitioned the Secretary of the Treasury under 19 U.S.C. § 1618 for a remission or mitigation of the impending forfeiture of his car. 2 In November, 1972, after making an informal telephone inquiry, Wiren received by unregistered mail a letter informing him of the government's intention to forfeit the vehicle which it had appraised, pursuant to 19 U.S.C. § 1606, at less than $2500. He then filed a claim in accordance with the provisions of 19 U.S.C. § 1608, but did not post the requisite $250 bond because, as he now alleges, he was indigent at the time. However, there being no statutory procedure for Wiren to call this indigent condition to the attention of the Bureau of Customs and no procedure for him to halt the summary forfeiture mandated by 19 U.S.C. § 1609, Wiren filed this action along with a motion to proceed in forma pauperis and an affidavit of poverty. He sought a determination of the constitutionality of the notice, bond, and burden-of-proof provisions contained in the federal statutory forfeiture scheme, a hearing on the merits of his claim that the seizure and impending forfeiture of his car are unconstitutional, and the return of his car together with damages. 3 Appellees agreed to stay forfeiture proceedings pending disposition of this action.

That petition was denied, as was a subsequent appeal to the Bureau of Customs.

The district court granted appellees' motion to dismiss, although it is uncertain from that order whether the dismissal was predicated on jurisdictional grounds or on the merits. We are clear that jurisdiction did exist and that Wiren's procedural claims entitle him to a hearing on the merits of his substantive claim. We therefore remand the matter for a clear disposition on the merits of the substantive claim.

The district court had subject matter jurisdiction of this action. Insofar as Wiren's claim is one for money damages not exceeding $10,000 in amount, the district court was empowered to reach the merits of that claim by the Tucker Act, 28 U.S.C. § 1346(a)(2). Simons v. United States, 497 F.2d 1046, 1049-1050 (9th Cir. 1974); Wells v. United States, 280 F.2d 275, 277 (9th Cir. 1960); Carriso, Inc. v. United States, 106 F.2d 707, 712 (9th Cir. 1939). See also Bramble v. Richardson, 498 F.2d 968, 970 (10th Cir. 1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656 (1974); Pasha v. United States, 484 F.2d 630, 632-633 (7th Cir. 1973); United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882, 884-885 (6th Cir. 1973); Menkarell v. Bureau of Narcotics, 463 F.2d 88, 90 (3d Cir. 1972); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-1357 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 996-998 (S.D.N.Y. 1969); and cases therein cited.

Similarly, § 10 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, also conferred subject matter jurisdiction on the district court. Despite a split in Turning now to Wiren's procedural contentions, we note that his claim of entitlement to pre-seizure notice and opportunity for a hearing was resolved against him in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There the Court held that the absence of pre-seizure notice and the opportunity for a hearing in the context of forfeiture proceedings is not a denial of due process; the seizure of property for purposes of forfeiture is an "extraordinary situation" justifying postponement of notice and hearing requirements. 416 U.S. at 676-680, 94 S.Ct. 2080. 6 Wiren nevertheless contends that the post-seizure notice provision contained in 19 U.S.C. § 1607 providing solely for notice by publication violates due process because it prescribes a method of notice not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

the circuits on the question, see, e. g., Sanders v. Weinberger, 522 F.2d 1167, 1169-1170 (7th Cir. 1975), this court has repeatedly taken the position that § 10 of the APA embodies an independent grant of subject matter jurisdiction to review agency action, irrespective of the amount in controversy, unless the questioned action is committed by law to the discretion of the agency or there is clear and convincing evidence of congressional intent to preclude review expressed in the governing statute or its legislative history. See Proietti v. Levi, 530 F.2d 836, 838 (9th Cir. 1976); Rothman v. Hospital Service of Southern California, 510 F.2d 956, 958-959 (9th Cir. 1975); Brandt v. Hickel, 427 F.2d 53, 55-56 n.2 (9th Cir. 1970); State of Washington v. Udall, 417 F.2d 1310, 1319-1320 (9th Cir. 1969); Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). See also Strickland v. Morton, 519 F.2d 467, 468 (9th Cir. 1975); Ness Investment Corp. v. U. S. Department of Agriculture, Forest Service, 512 F.2d 706, 715 (9th Cir. 1975); C. Byse and J. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 326-331 (1967); K. Davis, Administrative Law Treaties § 23.02 (Supp.1970). While the remission or mitigation of lawful seizures and forfeitures is a matter committed to agency discretion, see 19 U.S.C. §§ 1613 and 1618, 4 the determination of the propriety of the seizures and forfeitures themselves is not. See Simons, supra, 497 F.2d at 1049. We think it apparent that subject matter jurisdiction is additionally furnished by § 10 of the APA. 5

We are sympathetic to that claim. At least two federal courts dealing with the question have ruled that the notice by publication prescribed by § 1607 is inadequate to afford due process with respect to persons such as registered owners of seized vehicles whose identities and addresses are known or easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. Menkarell v. Bureau of Narcotics, 463 F.2d 88, 93-95 (3d Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 998-999 (S.D.N.Y.1969). See also Robinson v. Hanrahan, 409 U.S. 38, 39-40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972). Cf. Calero-Toledo, supra, 416 U.S. at 680 n.15, 94 S.Ct. 2080.

However, we conclude on balance that Wiren's receipt of actual notice deprives him of standing to raise the claim and therefore do not reach it. Having received such notice, Wiren has clearly been accorded due process in the application of the statute as to him personally. The essence of his claim is therefore that the statutory notice procedure is inadequate under the fifth amendment with respect to supposed third parties who receive no actual notice of the seizure and impending forfeiture of their property. The law governing the standing of litigants to assert constitutional claims of third parties not before the court is anything but clear. 7 However, we are doubtful that Wiren has a sufficient interest in challenging the statute's notice provision to satisfy the "case or controversy" requirement of Article III of the Constitution. The Court has expressed concern lest the standards of that requirement become blurred, see Eisenstadt v. Baird, 405 U.S. 438, 443 n.4, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and here we think that Wiren's allegations of injury-in-fact are insufficient to sustain it. See generally Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1975).

Moreover, even if a sufficient "case or controversy" were presented with respect to the statutory notice provision, we think the Court's self-imposed rules of restraint, see United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), would be controlling. True, there does exist a line of Supreme Court authority containing language to the effect that a litigant is not deprived of his ability to challenge a statutory notice provision simply because he may have received as a matter of administrative favor or grace, extra-official or casual notice not prescribed by the statute. See Wuchter v. Pizzuti, 276 U.S. 13, 24-25, 48 S.Ct. 259, 72 L.Ed. 446 (1928); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424-425, 35 S.Ct. 625, 59 L.Ed. 1027 (1915); Central of Georgia Railway Co. v. Wright, 207 U.S. 127, 138, 28 S.Ct. 47, 52 L.Ed. 134 (1907); Security Trust and Safety Vault Co. v. Lexington, 203 U.S. 323, 333, 27 S.Ct. 87, 51 L.Ed. 204 (1906). But those cases must be read in light of the Court's subsequent pronouncements in Raines, supra, 362 U.S. at 20-24, 80 S.Ct. 519. Moreover, the existence of standing in Wuchter has been explained as being predicated on the nonseparability of application of the challenged statute there, see Sedler, supra note 6, ...

To continue reading

Request your trial
55 cases
  • Rush v. Obledo
    • United States
    • U.S. District Court — Northern District of California
    • May 18, 1981
    ...Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Frissell v. Rizzo, 597 F.2d 840, 844, 848 (3d Cir. 1979); Wiren v. Eide, 542 F.2d 757, 762 & n.7 (9th Cir. 1976). For that reason, this court does not reach the issue whether warrantless searches of unlicensed homes are unconstitut......
  • United States v. Eight (8) Rhodesian Stone Statues
    • United States
    • U.S. District Court — Central District of California
    • February 24, 1978
    ...more than $2,500, district court proceedings are required to obtain a judicial decree of forfeiture. 19 U.S.C. § 1610. See Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976). If appraised at $2,500 or less, 19 U.S.C. § 1607 provides for a summary forfeiture and sale by the Secretary without judici......
  • Writers Guild of America, West, Inc. v. FCC, CV 75-3641-F
    • United States
    • U.S. District Court — Central District of California
    • November 4, 1976
    ...... See Hazelwood Hospital v. Weinberger, 542 F.2d 757 (9 Cir. 1976); Wirin v. Eide, 543 F.2d 703 (9th Cir. 1976). See also Rothman v. Hospital Service, 510 F.2d 956 (9th Cir. 1975); Brandt v. Hickel, 427 F.2d 53 (9th Cir. ......
  • Brown v. Dist. of Columbia
    • United States
    • U.S. District Court — District of Columbia
    • July 21, 2015
    ...("In forma pauperis provisions [in a forfeiture statute] are thus constitutionally mandated for the indigent.") (citing Wiren v. Eide, 542 F.2d 757, 763 (9th Cir.1976) ). Regardless of whether a due process or equal protection rubric is used to analyze the bond requirement here, the standar......
  • Request a trial to view additional results
1 books & journal articles
  • "A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.
    • United States
    • Journal of Appellate Practice and Process Vol. 12 No. 1, March 2011
    • March 22, 2011
    ...Richard Chambers, J., U.S. Ct. of App. for the Ninth Cir., to several judges, Re: Wiren v. Eide (Oct. 16, 1975) (addressing Wiren v. Eide, 542 F.2d 757 (9th Cir. (24.) Memo. from James Browning, C.J., U.S. Ct. of App. for the Ninth Cir., to Associates, Re: Saenz v. I.N.S. (Sept. 9, 1986) (a......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT