LaChance v. Drug Enforcement Admin., CV 86-3816.

• Decision Date: 24 August 1987
• Docket Number: No. CV 86-3816.,CV 86-3816.
• Citation: 672 F. Supp. 76
• Parties: Michel La CHANCE, Plaintiff, v. The DRUG ENFORCEMENT ADMINISTRATION and the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of New York

672 F. Supp. 76

Michel La CHANCE, Plaintiff, v. The DRUG ENFORCEMENT ADMINISTRATION and the United States of America, Defendants.

No. CV 86-3816.

United States District Court, E.D. New York.

August 24, 1987.

Joseph A. Faraldo, Kew Gardens, N.Y., for plaintiff.

Andrew J. Maloney, U.S. Atty., E.D. N.Y., Brooklyn, N.Y., Joseph D. McCann, Asst. U.S. Atty., for defendants.

MEMORANDUM OF DECISION AND ORDER

MISHLER, District Judge.

Statement of the Facts

Plaintiff Michel LaChance brought this action seeking to recover the sum of $49,000 in United States currency which was forfeited to the United States after seizure by the Drug Enforcement Administration ("the DEA"). Plaintiff had unsuccessfully petitioned the DEA for remission or mitigation of the forfeiture, which petition was denied initially and upon reconsideration. Plaintiff asks the District Court to enter judgment directing the defendant DEA to return the seized money to plaintiff. Defendants move to dismiss the action, pursuant to Rule 12(b)(1) and (6) of the Fed.R. Civ.P., for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

The facts of the case are summarized as follows:

On September 9, 1985, Michel LaChance was stopped by Mark Thornton, a DEA agent, while awaiting a flight to Montreal, Canada at LaGuardia Airport Terminal and was asked about large sums of cash found in his luggage.¹ LaChance responded that he had obtained the money from the sale of a horse and from legal gambling winnings at the race track, and identified himself as the world's leading professional harness racing driver. Thornton informed LaChance that he could not take this sum of cash out of the country without reporting it.² LaChance then left the terminal and placed the money in the trunk of a borrowed car that had been left in the airport parking lot.

When LaChance returned to the terminal to wait for his flight, Thornton and Robert O'Leary, another DEA agent, approached him and asked where he had put the cash. In response, LaChance took the DEA agents to the car, opened the trunk and showed them the money. The agents counted the money, totalling $49,000, placed it in a paper bag found in the trunk of the borrowed car, took the money in the paper bag and gave LaChance a receipt.

The agents did not charge LaChance with any illegal activity at that time and allowed him to continue on his trip. The agents subsequently took the money in the paper bag to Kennedy Airport, and exposed it to a drug-sensitive dog. The dog reacted positively, indicating the presence of a controlled substance. It was not determined whether the reaction was to the money or to the bag.

As a result of the airport incident, the New York State Racing and Wagering Board ("the Board") summoned LaChance to a hearing to investigate whether the money was implicated in any criminal activity. The DEA agents testified at the hearing but LaChance refused to answer any questions about the airport incident, following his lawyer's advice that he invoke his constitutional rights. As a result of his failure to cooperate at the hearing, the Board suspended LaChance's racing license.³

On December 2, 1985, the DEA formally notified LaChance of the seizure and impending forfeiture of the $49,000 and advised him of his options, i.e., (1) to file a petition with the agency for remission or mitigation of the forfeiture within thirty days or (2) to file a claim and cost bond of $2,500 and have the matter brought to the United States District Court.⁴

Represented by an attorney, LaChance chose the administrative remedy and filed a petition for remission of the forfeiture on December 11, 1985. He did not pursue his remedy in the District Court. The DEA denied his petition on February 24, on the ground that LaChance had used the money in violation of the law. On March 20, plaintiff requested reconsideration of the petition for remission. The DEA granted the request for reconsideration, and after a "full and thorough re-examination of the entire case file," affirmed its denial of the petition, basing its decision on conflicting statements by LaChance regarding the source and sum of the seized currency. The DEA found that LaChance had failed to establish a good faith interest in the money or to rebut the existence of probable cause to believe that the money was the proceeds of narcotic sales.

LaChance then filed the present complaint against the DEA to recover the forfeited currency and the DEA filed the instant motion for dismissal.

DISCUSSION

The issue before the court is whether a Federal District Court has subject matter jurisdiction over an action to recover monies seized by the Drug Enforcement Agency and forfeited after the DEA has twice considered and denied plaintiff's petitions for remission of the forfeited currency.

Plaintiff alleges that the court has jurisdiction to review the forfeiture and denial of remission pursuant to 28 U.S.C. §§ 1331, 1361, 1391 and 21 U.S.C. § 881 and claims that his money was taken without probable cause, in violation of his constitutional right to due process.

Defendant argues that the court lacks subject matter jurisdiction because the action is against the United States as a sovereign and none of the cited statutory provisions provide for a waiver of sovereign immunity or a grant of jurisdiction. We agree.

An action may not be brought against the United States as sovereign unless it has consented to be sued by statute. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). The terms of its consent define the limits of the court's jurisdiction. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). A waiver of immunity must be "unequivocally expressed" and exceptions are not to be implied. Id. at 161, 101 S.Ct. at 2701-02.

Section 1331 of title 28 of the United States Code,⁵ which provides generally for federal question jurisdiction, cannot be construed as a waiver of the sovereign immunity of the United States from suit. See Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980); Commonwealth of Kentucky ex. rel. Hancock v. Ruckelshaus, 362 F.Supp. 360, 367 (W.D.Ky.1973), aff'd, 497 F.2d 1172 (6th Cir.1974), aff'd, sub nom. Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976). Thus, plaintiff may not bring his claim against the government pursuant to this statute. Nor is the mandamus statute, 28 U.S.C. § 1361, an "all-purpose waiver of the Government's immunity from suit." Doe v. Civiletti, supra, 635 F.2d at 94. Thus an action against the government under § 1361, also will not lie.

Plaintiff's attempted reliance on 28 U.S.C. § 1391 for jurisdictional purposes is also misplaced, as this statute concerns only the separate and distinct issue of venue for civil actions that are properly brought in Federal District Court and has no bearing on the threshold question of whether the court has jurisdiction. See Driscoll v. New Orleans Steamboat Co., 633 F.2d 1158, 1159 n. 1 (5th Cir.1981) ("Venue is distinct from jurisdiction. Venue may be proper or improper, independent of questions of subject matter or personal jurisdiction."); Arrowsmith v. United Press International, 320 F.2d 219, 225 (2d Cir.1963); Berning v. BBC, Inc., 575 F.Supp. 1354, 1357-58 (S.D.Ohio 1983). "Title 28 U.S.C. § 1391 is a venue statute and cannot itself confer jurisdiction." Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 609 n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978).

Similarly, plaintiff errs in relying on 21 U.S.C. § 881 to seek judicial review of the DEA's denial of his petition for remission. Section 881(d) of Title 21 and section 1618 of Title 19⁶ provide for the filing of a petition for remission or mitigation of a forfeiture before the Administration only. See also 21 C.F.R. § 1316.79. The District Court has no jurisdiction to review the denial of such a petition. United States v. One 1976 Porsche 911S, 670 F.2d 810, 813 (9th Cir.1979); United States v. One Clipper Bow Ketch Nisku, 548 F.2d 8, 12 (1st Cir.1977); United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir.1977) (the overwhelming weight of authority supports the position that the denial of a petition for remission by the Attorney General (or agency) is not subject to judicial review on the merits); United States v. One 1970 Buick Riviera Bearing Serial No. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.1972), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972); Bramble v. Kleindienst, 357 F.Supp. 1028, 1033 (D.Colo.1973), aff'd sub. nom, Bramble v. Richardson, 498 F.2d 968 (10th Cir.1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). Remission of a forfeiture is a matter of grace and discretion delegated solely to the exclusive authority of the administrative agency (or Attorney General).⁷ United States v. One 1970 Buick Riviera Automobile, supra, 463 F.2d at 1170 ("The question of our authority to review the Attorney General's denial of the request for remission of the forfeiture is controlled by the long-standing, judge-made rule that the Attorney General has unreviewable discretion over petitions under 19 U.S.C.A. § 1618."). It appears that Congress intended the petition for remission filed with the Administration under 19 U.S.C. § 1618, to be the only available mechanism for leniency to mitigate the harshness of the forfeiture statute. United States v. One 1976 Porsche 911S, supra, 670 F.2d at 813; United States v. One Clipper Bow Ketch Nisku, supra, 548 F.2d at 12.

This court has previously noted that,

The purpose of the remission statute was to grant executive power to relieve against the harshness of forfeitures. The exercise of the power, however, was committed to the discretion of the executive so that he could temper justice with mercy or

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