Albajon v. Gugliotta

Decision Date07 September 1999
Docket NumberNo. 98-2719-CIV.,98-2719-CIV.
PartiesJuan Carlos ALBAJON, Plaintiff, v. Special Agent N. GUGLIOTTA of the United States Drug Enforcement Administration, et al. Defendants.
CourtU.S. District Court — Southern District of Florida

J.C. Codias, Miami, FL, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

GOLD, District J.

Juan Carlos Albajon filed this action for the return of approximately $70,000.00 consisting of $3,000 in U.S. Traveler's Checks and $67,000 in U.S. currency.1 He alleges claims under Federal Rule of Criminal Procedure 41(e), 28 U.S.C. § 2412(D)(1)(A) (Equal Access to Justice Act), the Federal Tort Claims Act, Bivens, 42 U.S.C. section 1983 for civil rights violations, common-law tort principles, constitutional violations of the Fourth, Sixth, and Fourteenth Amendments, and "any and all other existing statutory authority not specifically included therein."

The government filed a motion to dismiss. By order dated May 3, 1999, the court provided notice to the parties that it would treat the government's motion to dismiss as a motion for summary judgment.2 On May 4, 1999, plaintiff filed a motion for summary judgment. Thus this case is presently before the court on cross motions for summary judgment. Among other things, the government makes the following three arguments: (1) it is entitled to summary judgment because the court lacks subject matter jurisdiction over the Tort Claims Act claim as the United States has retained sovereign immunity for claims arising from the detention of goods by law enforcement officers; (2) the agent is entitled to qualified immunity on the Bivens claim; and (3) the agent was not acting under state law so as to invoke a civil rights violation under 42 U.S.C. § 1983. Plaintiff argues that he is entitled to summary judgment because the agent lacked probable cause to seize the currency and checks.

I. FACTS

Drug Enforcement Administration Special Agent Natale Gugliotta received information that Juan Carlos Albajon would be transporting two to three kilograms of cocaine to Maryland and that Albajon would be on a flight leaving from Miami at 4 p.m. on June 27, 1998. After conducting surveillance on Albajon, Gugliotta followed him to the Miami International Airport. At gate "E" of the Miami International Airport, Gugliotta approached Albajon who, when asked, produced a Florida drivers license and a plane ticket in the name of William Mendez. Albajon said he was traveling to Germany. An officer from the U.S. Customs Service and his canine "Abbey" responded to gate "E" where Abbey gave a positive alert for the presence of controlled substances in a suitcase and a box belonging to Albajon. Albajon gave Gugliotta permission to inspect the suitcase and the box. Inside the suitcase, the agent found a small amount of U.S. currency. When Gugliotta asked Albajon if he was carrying any other money, Albajon lifted up his pants leg and started taking money from his socks and pant's pockets. In all, $57,130.00 in U.S. currency and $3,000 in American Express Travelers Checks were produced. Albajon gave conflicting explanations about the money, saying that it belonged to his son in Germany, that it belonged to a friend, and that it belonged to Albajon himself. Gugliotta seized the money and travelers checks, believing them to be drug proceeds under 18 U.S.C. § 1960. At the time of the seizure Albajon possessed three Florida drivers licenses, in the names of Juan Carlos Albajon, William Mendez and Juan Bautista Arapajon. Albajon has previous arrests for drug charges.

A. Notice of the Administrative Forfeiture Proceedings Related to the Seizure of $57,139.00 in United States Currency. The government initiated administrative forfeiture proceedings against the currency. On September 9, 1998, the DEA sent a "Notice of Seizure" letter by certified mail to two addresses, including Albajon's home address.3 Notice was sent to Juan Carlos Albajon, a/k/a William Mendez, at 2630 N.W. 13th Avenue Miami, FL 33142. The post office forwarded that letter to 156 Mich. 47, 120 N.W. 29 St. #F, Miami FL 33127 (the address from which plaintiff was surveilled prior to his airport encounter with Gugliotta). Service of that letter was attempted on September 17, 1998, and a final notice was given on September 27, 1998. The letter was returned to the DEA marked "Unclaimed" on October 13, 1998. On September 9, 1998, the DEA also sent the Notice to Juan Carlos Albajon a/k/a William Mendez at 120 N.W. 27th St Miami, FL 33127. That letter was returned to DEA on September 22, 1998, marked "Refused 9/11/98." The Notice informed plaintiff about the seizure of the currency and the applicable statutes and regulations. It stated that Albajon could petition the DEA for return of the property or his interest in it (remission or mitigation), pursuant to 28 C.F.R. §§ 9.1 -9.7 within 30 days of receipt of this notice, and outlined the procedure to be followed. Additionally, the Notice stated that pursuant to 19 U.S.C. § 1602-1619 and 21 C.F.R. §§ 1316.71-1316.81, Albajon could alternatively or additionally contest the seizure and forfeiture of the property in court by filing a claim and posting a $5,000 cost bond, or request a bond waiver if indigent. Seizure of the currency was also advertised in USA TODAY on September 2, 9 and 16, 1998. It is undisputed that the plaintiff never submitted a claim and cost bond, or requested a waiver of the bond to secure judicial review of the administrative forfeiture proceedings related to the currency. On December 2, 1998, a "Declaration of Forfeiture" was issued and the currency was administratively forfeited.

B. Notice of the Administrative forfeiture proceedings relating to 115 American Express Traveler Checks totaling $3,000. When administrative forfeiture proceedings were initiated against the traveler's checks, the DEA sent a "Notice of Seizure" letter to the plaintiff on October 28, 1998, at six addresses4 notifying him of the seizure and the applicable statutes and regulations.5 The seizure of the traveler's checks was also advertised in USA TODAY on November 11, 17 and 25, 1998.

On October 12, 1998, the plaintiff, through his attorney J.C.D. Cobias, Esq., sent a letter to DEA Special Agent N. Gugliotta requesting the return of all the monies and negotiable instruments and informing Special Agent N. Gugliotta if he did not hear from him or the agency by October 22, 1998, he would file legal action in federal court. Thereafter, claimant filed a Rule 41(e) Motion for the Return of Personal Property and Complaint for Damages including Attorney's Fees pursuant to 28 U.S.C. § 2412(D)(1)(A) of the Equal Access to Justice Act; and Motion for Deposit of Monies in Interest Bearing Account Pending Resolution of this Claim.6

The DEA sent a letter to Juan Carlos Albajon in care of his attorney advising plaintiff that his claim had been received but was defective. The DEA informed the plaintiff that he had an additional twenty days from receipt of the letter to cure the defect by remitting a cost bond or an affidavit of indigency. Included in the letter was a form affidavit to proceed in forma pauperis in lieu of cost bond. Plaintiff never submitted a cost bond, or requested a bond waiver to secure judicial review of the administrative forfeiture proceedings of the traveler checks.

II. DISCUSSION
A. Federal Tort Claims Act Claim.

The government's first argument is that the court lacks subject matter jurisdiction over plaintiff's claim under the Federal Tort Claims Act.7

1. 28 U.S.C. § 2680(c) Exception to Waiver of Sovereign Immunity. According to the government, there is no jurisdiction under 28 U.S.C. §§ 2674-80 for Albajon's claim because such claims are exceptions from the government's waiver of immunity under the Tort Claims Act. Generally, suits against the United States are barred by the doctrine of sovereign immunity. It is well settled that the United States cannot be sued unless it has expressly waived its sovereign immunity and has consented to be sued. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Waivers of sovereign immunity are strictly construed in favor of the sovereign. See United States Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992); United States v. Nordic Village Inc., 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Furthermore, a waiver of sovereign immunity cannot be implied; it must be unequivocally expressed by Congress. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The terms of the government's consent to be sued in any court define that court's jurisdiction to entertain the suit. Sherwood, 312 U.S. at 586, 61 S.Ct. 767. See also United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Although the Federal Torts Claim Act, 28 U.S.C. §§ 2674-80, provides for a waiver of sovereign immunity, the Act contains certain exceptions; it expressly does not waive immunity for:

Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.

28 U.S.C. § 2680(c). This section has been broadly construed to apply not only to customs officers detaining property, but also to law enforcement officers in other agencies who are performing their lawful duties. See Schlaebitz v. United States Department of Justice, 924 F.2d 193, 194 (11th Cir.1991) (confiscation and release to third party of luggage by U.S. Marshal); United States v. $149,345 United States Currency, 747 F.2d 1278, 1283 (9th Cir. 1984) (applying the exception to the seizure of money by DEA agents pursuant to ...

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