Jaekel v. United States

• Decision Date: 30 September 1969
• Docket Number: No. 68 Civ. 4753.,68 Civ. 4753.
• Citation: 304 F. Supp. 993
• Parties: Brigida JAEKEL, Plaintiff, v. The UNITED STATES of America and William P. Durkin, Regional Director, Bureau of Narcotics and Dangerous Drugs, Defendants.
• Court: U.S. District Court — Southern District of New York

304 F. Supp. 993

Brigida JAEKEL, Plaintiff, v. The UNITED STATES of America and William P. Durkin, Regional Director, Bureau of Narcotics and Dangerous Drugs, Defendants.

No. 68 Civ. 4753.

United States District Court S. D. New York.

September 30, 1969.

COPYRIGHT MATERIAL OMITTED

Bruce J. Ennis, Jr., Burt Neuborne, Edward F. Hayes, III, New York Civil Liberties Union, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty., for Southern District of New York, for defendants, Michael C. Silberberg, Asst. U. S. Atty., of counsel.

MEMORANDUM

BONSAL, District Judge.

On November 9, 1966, following the arrest of plaintiff's daughter by Federal narcotics agents for an alleged violation of the Federal narcotics laws, plaintiff's 1964 Chevrolet Convertible (the automobile) was seized pursuant to 49 U.S.C. § 782.¹ Subsequent to her arrest, plaintiff's daughter was told that the automobile had been seized and to contact an attorney to learn her remedies for getting it back.

On November 10, 1966, the automobile was placed in storage and was subsequently appraised at $1750.00.

On November 14, 1966, plaintiff was interviewed at her home by narcotics agents and was then informed by them that her daughter had been arrested on a charge of unlawful sale of narcotic drugs and that her automobile had been seized for unlawful use to facilitate the sale of narcotic drugs. She was told to contact an attorney for information as to how she could get the car back.

Acting pursuant to 19 U.S.C. § 1607² and 26 C.F.R. § 153.4³ (now 21 C.F.R. § 330.5), the District Supervisor of the

Bureau of Narcotics placed an advertisement in the New York Post on November 22, 29, and December 6, 1966, which stated:

"TREASURY DEPARTMENT, BUREAU OF NARCOTICS

Notice is hereby given that on 11/9/66, one 1964 Chevrolet Impala Motor #41867T-245660, Serial # same, was seized in the City of New York for violation of the Act of August 9 1939, as amended (49 USC 781-788). Any person claiming an interest in said property must file with the District Supervisor, 90 Church St., New York, N. Y., 10007, a claim and cost bond in the sum of $250.00, with sureties to be approved by said District Supervisor, on or before December 12, 1966, otherwise the property will be disposed of according to law, George M. Belk, District Supervisor."

On December 9, 1966, the First National City Bank, mortgagee of the automobile, filed a petition for remission or mitigation of the forfeiture of the automobile in which it alleged a security interest of $1241.89.

On December 12, 1966, the automobile was forfeited to the United States in a summary administrative forfeiture proceeding, pursuant to 19 U.S.C. § 1609⁴ as no claims had been filed within the allotted period.

On or about February 20, 1967, the First National City Bank elected to have the automobile sold at auction, with the proceeds up to the security interest remitted to it. On March 4, 1967, the automobile was sold at public auction for $750.00, and, after deducting storage and advertising expenses, the United States remitted $645.00 to the First National City Bank, of which $500.00 was credited to plaintiff.

On November 8, 1968, plaintiff commenced this action against the United States and William P. Durkin, in his capacity as Regional Director, Bureau of Narcotics and Dangerous Drugs, seeking to declare, among other things, the administrative forfeiture of the automobile null and void, to recover damages in the amount of $5300.00 or, in the alternative, awarding damages against defendants in the amount of $3600.00 and directing defendants to return the automobile to plaintiff. Plaintiff alleges that the Federal agents who seized the automobile knew she was the owner and were aware of her address; that the notice by publication was inadequate, null, and void; that in fact she had no notice of the forfeiture proceeding; and that the administrative forfeiture proceeding deprived her of her property without due process of law. Jurisdiction is asserted under 28 U.S.C. § 1346(a) (2), and other sections.

Defendants move for summary judgment, dismissing the complaint for lack of subject matter jurisdiction. Plaintiff cross-moves for summary judgment for the relief requested in the complaint.

Subject Matter Jurisdiction

Plaintiff claims that the automobile was seized from her and forfeited pursuant to statutes of the United States and that the application of those statutes in her case deprived her of her property without due process of law. As a basis for jurisdiction, plaintiff principally relies on 28 U.S.C. § 1346(a) (2), the Tucker Act, which provides:

"§ 1346. United States as defendant

(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:

* * * * * *

(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort."

The langauge of § 1346(a) (2) would appear to encompass the plaintiff's claim against the United States which is founded on the seizure and forfeiture of her automobile pursuant to 49 U.S.C. § 782, 19 U.S.C. § 1607 and 19 U.S.C. § 1609, and requests an award less than $10,000.00. It is clear that § 1346(a) (2) does confer jurisdiction over claims against the United States, not exceeding $10,000.00, involving the application of a law of Congress. Compagnie General Transatlantique v. United States, 21 F.2d 465 (S.D.N.Y.1927), aff'd 26 F.2d 195 (2d Cir. 1928). Thus, where taxes, fines, or penalties are unlawfully imposed, an action may be maintained under § 1346 (a) (2) to recover the money. United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825 (1915); Compagnie General Transatlantique v. United States, supra.

Though defendants argue that a forfeiture is not a fine or penalty which may be recovered in an action under § 1346(a) (2), "A forfeiture is clearly a penalty for a criminal offense." Compton v. United States, 377 F.2d 408, 411 (8th Cir. 1967); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); and defendants' argument for the proposition that a limitation should be read into the language of § 1346(a) (2) to exclude forfeitures is not persuasive.

The Court of Claims, which has concurrent jurisdiction with the District Court under the Tucker Act, 28 U.S.C. § 1491,⁵ stated recently:

"The claim must, of course, be for money. Within that sphere, the noncontractual claims we consider under Section 1491 can be divided into two somewhat overlapping classes * * *. In the first group (where money or property has been paid or taken), the claim must assert that the value sued for was improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation." Eastport Steamship Corporation v. United States, 372 F.2d 1002, 1007, 178 Ct.Cl. 599 (1967).

Plaintiff's claim that the forfeiture proceeding deprived her of her property without due process of law comes within § 1491 as interpreted by the Court of Claims.

The fact that the automobile is a chattel and not in the possession of the United States is irrelevant to the issue of jurisdiction in light of the language in Eastport, supra, quoted above. Her claim is for the value of her property improperly taken from her as a result of the forfeiture. The nature of the forfeiture proceeding which 19 U.S.C. § 1607 prescribes is solely dependent upon the "domestic value" of the automobile, that is, the "* * * price at which such or similar property is freely offered for sale." 26 C.F.R. § 153.3 (now 21 C.F.R. § 330.4). Compare 19 U.S.C. §§ 1607 with 19 U.S.C. § 1610. In accord with 26 C.F.R. § 153.3, the automobile was appraised at $1750.00 which presents a readily determinable value of the automobile, even though the defendants, having sold it, no longer are in possession of it. As such, there is no necessity for the court to engage in the valuation of the property forfeited in this case.

Defendants argue that remission of the funds to the First National City Bank renders plaintiff's claim moot. However, that contention was sub silentio rejected in the case of Ramsey v. United States, 329 F.2d 432 (9th Cir. 1964). In that case, the Ninth Circuit held that the District Court could properly entertain Ramsey's claim that the forfeiture was void even though remission had been made. The defendants seek to distinguish Ramsey on the ground that the United States retained the balance of the proceeds after remission, whereas here there was no excess over the amount remitted to the First National City Bank. There was no excess because the government sold plaintiff's automobile, appraised at $1750.00, for $750.00. Certainly the jurisdiction of the District Court to entertain a claim that the forfeiture itself was void cannot depend on the amount which the government receives from auctioning off the forfeited property. Likewise, the amount of the security interest, also affecting the amount of the excess, if any, cannot be determinative of the jurisdictional issue. The plaintiff's automobile was appraised at $1750.00. The defendants' actions in disposing of it and remitting the proceeds to a third party, taken after the forfeiture proceeding, cannot deprive this court of jurisdiction to hear plaintiff's claim that the forfeiture itself was void.

Defendants further argue that plaintiff is seeking damages which sound in tort. Plaintiff does not claim that the seizure of the automobile was tortious, however. Rather, plaintiff asserts that the application of the statutes against her deprived her of her property without due process of law. Whatever the measure of damages may be, and whether or not the type of damages recovered ...