Johns v. McKinley, 170
| Citation | 753 F.2d 1195 |
| Decision Date | 31 January 1985 |
| Docket Number | No. 170,D,170 |
| Parties | Richard JOHNS, III, Plaintiff-Appellant, v. Stanley E. McKINLEY, Immigration and Naturalization Service (INS) Regional Commissioner for the Eastern Region, Alan C. Nelson, Commissioner of the INS, and Benedict J. Ferro, District Director, Buffalo INS, Western District of New York, Defendants-Appellees. ocket 84-6160. |
| Court | U.S. Court of Appeals — Second Circuit |
Gerald P. Seipp, Buffalo, N.Y. (Serotte, Reich & Goldstein, Buffalo, N.Y., on brief), for plaintiff-appellant.
Rodney O. Personius, Asst. U.S. Atty., Buffalo, N.Y. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Buffalo, N.Y., on the brief), for defendants-appellees.
Before: MANSFIELD and KEARSE, Circuit Judges, and METZNER, District Judge. *
Plaintiff Richard Johns, III, appeals from a final judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing his complaint for damages and the return of a 1982 Ford tractor cab seized at the United States-Canadian border by officials of the United States Immigration and Naturalization Service ("INS") on July 21, 1983. The defendants are Stanley E. McKinley, Regional Commissioner for the Eastern Regional Office of INS; Alan C. Nelson, Commissioner of INS; and Benedict J. Ferro, District Director of INS's Western New York office. The district court held, inter alia, that Johns had no right to the return of his cab and that none of these defendants was responsible for the delay now complained of in the processing of Johns's request for the return of his cab. We agree that Johns had no right to compel the return of his cab and that McKinley and Ferro had no responsibility for the delay now complained of; we therefore affirm the judgment as to those two defendants. We are unable to conclude, however, that Nelson had no responsibility for that delay; accordingly, the judgment dismissing the complaint against Nelson is vacated and
the matter is remanded for further proceedings.
The events that led to this lawsuit are not substantially in dispute. On July 10, 1983, Johns entered the United States from Canada. He was accompanied by his Canadian girl friend Heather Owen who was, however, denied entry because of her prior Canadian conviction of a narcotics offense. On July 21, 1983, Johns attempted to smuggle Owen into the United States. As he again entered from Canada, Johns told INS officials that he was alone, but a search revealed Owen hiding in the sleeper compartment of the tractor cab. INS thereupon seized Johns's cab. 1
Johns, a cross-country trucker whose cab was also his residence for most of the year, immediately began his efforts to regain possession of his cab. He retained Gerald Seipp, an attorney experienced in INS matters, who, beginning on July 22, made a series of telephone calls to the INS regional office. Seipp conceded Johns's violation of the immigration laws and requested a prompt adjudication of a request for "mitigation," i.e., a determination that may result in the return of a seized item to an owner who is not innocent of wrongdoing. See 8 C.F.R. Sec. 274.15 (1984). On July 26, 1983, Seipp sent a detailed letter to McKinley's office setting forth Johns's claim for mitigation ("July 26 Letter"). The letter stated that Owen had not sought permanent residence in the United States but merely wanted to accompany Johns as a vacation of sorts; that Johns's violation of the immigration laws should be considered a minor one in the overall scheme of things; that expeditious handling of Johns's request for mitigation was needed because the loss of the tractor cab was preventing Johns from earning a living and was necessitating expenses for food and lodging that he would not otherwise incur; and that Johns would be willing to pay a reasonable fine for his offense, suggesting the amount of $500. In a July 29 telephone conversation, INS regional office counsel advised Seipp, inter alia, that the July 26 Letter could not be considered a petition for mitigation because it did not comply with INS regulations; that INS never quickly compromised a vehicle forfeiture case in the manner urged by Johns; and that, because the value of the cab exceeded $10,000, INS would be required to commence judicial forfeiture proceedings and it might be necessary for the Attorney General of the United States to consider any administrative applications for relief. Seipp eventually informed McKinley's office that a lawsuit would be commenced.
On August 3, 1983, Johns commenced the present action and moved for a preliminary injunction ordering INS to release the cab to Johns immediately. The complaint identified District Director Ferro as the supervisor of the INS agents who had seized the cab; Regional Commissioner McKinley as the statutory custodian of the cab; and INS Commissioner Nelson as the person responsible for the overall conduct of INS. It alleged that the defendants had "refus[ed] to promptly issue appropriate relief in the nature of remission or mitigation," in violation of Johns's due process rights. Johns sought, inter alia, $10,000 in damages and the return of his cab.
In support of the injunction motion, Seipp submitted an affidavit recounting his communications with McKinley's office. Johns submitted an affidavit reiterating many of the assertions made in Seipp's July 26 Letter and setting forth in greater detail the hardship Johns was suffering as a result of the delay in recovery of his cab. He stated that his contract with his employer was due to expire on August 10, 1983, and that although he would normally have anticipated no difficulty in renewing it, the delay in recovery of his cab was interfering with his performance of his obligations and could lead to the loss of his job. In addition, the delay in his return to gainful employment threatened his ability to make the installment payments due on The injunction motion was argued on August 8, and the court reserved decision. The motion was never explicitly decided. On August 8, INS forwarded the administrative file to the United States Attorney for the institution of forfeiture proceedings against the cab. On August 10, Johns filed with the U.S. Attorney's office a formal petition for mitigation that complied with 8 C.F.R. Sec. 274.13 (1984). On the same day, the government commenced forfeiture proceedings against the cab in the district court. Apparently, nothing further happened for more than two months. 2
the cab, thus creating the risk that even if the cab were eventually released by INS, a lengthy delay prior to such release might cause him to lose the cab to his finance company.
On October 14, Johns filed a supplemental affidavit by Seipp seeking action on his motion for preliminary injunctive relief. Seipp pointed out that more than nine weeks had elapsed since the filing of Johns's formal petition for mitigation, with no sign of a response from the government. By letter dated that same day, the Department of Justice advised Seipp that John's petition for mitigation would be granted on three conditions: that he dismiss the present action, that he sign a release from liability as a result of the seizure, and that he pay a fine of $5,000.
On October 18, the defendants moved for dismissal of the complaint for lack of jurisdiction, or failure to state a claim upon which relief may be granted, or summary judgment. Defendants argued, inter alia, that under the pertinent regulations they had no authority to rule on Johns's petition for mitigation, and that that authority lay with the Assistant Attorney General of the United States in charge of the Criminal Division ("Assistant AG/CD"), to whom the petition and other pertinent documents had been promptly forwarded. Several weeks later, Johns cross-moved for summary judgment in his favor. Johns did not assert that the defendants here had in any way caused a delay in sending the petition to the Assistant AG/CD or that there was any issue of fact as to that question.
In an opinion dated April 27, 1984, the district court granted defendants' motion for summary judgment and dismissed the complaint. The court rejected Johns's argument (not pursued on this appeal) that defendants had unreasonably delayed the institution of forfeiture proceedings. As to the government's action on the mitigation petition, the court found that the July 26 Letter did not conform to the requirements of INS regulations for a petition for mitigation and that a proper petition was not filed until August 10; hence the delay of the government in acting upon Johns's petition for mitigation was 65 days. Since the value of the cab was in excess of $10,000, INS regulations required that the petition be filed with, or forwarded to, the U.S. Attorney and ruled upon by the Assistant AG/CD. The court found that the Johns petition had been duly forwarded to those officials and that the authority to rule on the petition for mitigation did not reside in the defendants.
The court also found that the 65-day delay by the Assistant AG/CD in acting on the petition was not unreasonable in light of the facts that Johns had admitted violating the immigration laws, he had not taken advantage of the procedural step of an interview with INS on the day following the seizure to determine his eligibility for the return of his cab, and in any event he had no right to a favorable determination of his petition.
This appeal followed.
On appeal, Johns has expressly abandoned any contention that the government unreasonably delayed in instituting forfeiture proceedings. Instead he contends principally (1) that the procedures provided by INS for the processing of requests for
mitigation of forfeitures do not provide an adequate opportunity for a claimant to obtain a decision with reasonable promptness and hence they deny the claimant due process of law; and (2) that...
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