Lee v. Thornton

• Decision Date: 02 July 1976
• Docket Number: No. 533,D,533
• Citation: 538 F.2d 27
• Parties: James P. LEE, Jr., Plaintiff-Appellant, v. William L. THORNTON, District Director, United States Customs for Vermont, et al., Defendants-Appellees. Ronald RICH, Plaintiff-Appellant, v. William L. THORNTON, District Director, United States Customs for Vermont, et al., Defendants-Appellees. ocket 75-6089.
• Court: U.S. Court of Appeals — Second Circuit

Page 27

538 F.2d 27

James P. LEE, Jr., Plaintiff-Appellant, v. William L. THORNTON, District Director, United States

Customs for Vermont, et al., Defendants-Appellees.

Ronald RICH, Plaintiff-Appellant, v. William L. THORNTON, District Director, United States

Customs for Vermont, et al., Defendants-Appellees.

No. 533, Docket 75-6089.

United States Court of Appeals Second Circuit.

Argued March 9, 1976.

Decided July 2, 1976.

John A. Dooley, III (Vermont Legal Aid, Inc.), Burlington, Vt., for plaintiffs-appellants.

Terence M. Brown, Atty., Dept. of Justice, Washington, D. C. (Shirley Baccus-Lobel, Atty., Dept. of Justice, Washington, D. C., and George W. F. Cook, U. S. Atty. for the District of Vermont, Rutland, Vt., of counsel), for defendants-appellees.

Before KAUFMAN, Chief Judge, and SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Lee and Rich, two motor vehicle owners, whose vehicles were detained by customs officials in Vermont after crossings of the Canadian border, sued in the United States District Court for the District of Vermont, attacking the constitutionality of the statutory scheme under which the vehicles had been detained. ¹

A decision granting partial relief in favor of the plaintiffs by a three-judge district court, 370 F.Supp. 312 (1974), was vacated by the Supreme Court, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975), on the ground that the three-judge court had erroneously assumed jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2), over claims to enjoin enforcement of the challenged statutes. On remand the three-judge court found no other grounds for three-judge court jurisdiction and returned the cases to Judge Coffrin, who rejected all the claims on the merits.

We hold that, in failing to provide appellants with an adequate opportunity to contest the detention of their property, the contested statutes as here applied violated appellants' fifth amendment right to due process. We reverse and remand.

The facts have been stipulated and are well stated in the opinion of the three-judge court. 370 F.Supp. at 315-16. ²

In brief, Lee was accused of using his van to bring in undeclared persons, merchandise and marijuana, in violation of 19 U.S.C §§ 1459 and 1595a and 21 U.S.C. § 881, assessed a penalty of $1845, the apparent value of the van, and informed that the van and merchandise were subject to forfeiture under 19 U.S.C. §§ 1460 and 1595a and 21 U.S.C. § 881, and that he could file a petition for remission or mitigation. Such a petition is authorized to be determined by the Secretary of the Treasury, and in cases involving less than $25,000, by the district director. 19 U.S.C. § 1618; 19 C.F.R. § 171.21. Some days later Lee filed such a petition and the penalty was reduced to $100. A $250 bond is required by 19 U.S.C. § 1608 in cases involving no more than $2500, to force the government to bring a forfeiture proceeding. Lee was unable to post a bond in this amount, but did pay the $100 to recover his van.

Rich was accused of crossing the border illegally, in violation of 19 U.S.C. § 1459, not having stopped at a border station. His car was seized under 19 U.S.C. § 1594 as security for the penalty to which Rich was subject for violation of § 1459, he was permitted to file a petition for remission or mitigation and the car was released on payment of a $50 deposit toward the ultimate mitigated penalty. Later $25 was remitted to Rich.

Jurisdiction of the district court is based on the Tucker Act, which in 28 U.S.C. § 1346(a)(2) provides for relief against the United States from unlawful fines or forfeitures involving not in excess of $10,000. Glup v. United States, 523 F.2d 557, 559 n. 3 (8th Cir. 1975); Simons v. United States, 497 F.2d 1046, 1049 (9th Cir. 1974); Pasha v. United States, 484 F.2d 630, 632 (7th Cir. 1973); Menkarell v. Bureau of Narcotics, 463 F.2d 88, 90-91 (3d Cir. 1972); United States v. Compagnie Generale Transatlantique, 26 F.2d 195, 197 (2d Cir. 1928); United States v. Summa,362 F.Supp. 1177, 1180 (D.Conn.1972); Jaekel v. United States, 304 F.Supp. 993, 997 (S.D.N.Y.1969).

The district court on remand felt compelled, because of the intervening opinion of the Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), to reject the reasoning of the three-judge court finding the procedures constitutionally lacking. This was error, for the Calero case is clearly distinguishable from the cases before us. In light of the fact that the owner might easily abscond with the yacht there involved, the Court in Calero refused to mandate a hearing prior to seizure. We are here concerned rather with the need for immediate post-seizure hearings to avoid unreasonable continuation of the government custody of the vehicles.

There is an extremely important government interest in policing the passage of persons and articles into the country across its borders. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). On the other hand, the individual has an important interest in the possession of his motor vehicle, often his most valuable possession, see Tedeschi v. Blackwood, 410 F.Supp. 34 (D.Conn.1976), and not infrequently a needed mode of transportation from a remote border point.

It is undoubtedly open to the Congress to provide for seizure of motor vehicles for customs violations or retention as security for penalties incurred by owners for customs violations. The manner in which the contested detention provisions were applied here, however, we think failed to comply with the constitutional requirement of due process of law.

In both cases vehicles were seized and held, penalties assessed and later mitigated on petition, and the vehicles released only on payment of the mitigated amounts, all without hearing. The statutes and regulations should have been interpreted to require an opportunity for prompt hearing.

It is true that review of forfeiture decisions in cases involving a vehicle worth no more than $2500 may be had under 19 U.S.C. §§ 1607 and 1608. This would provide an eventual hearing if the statutory conditions were met. This, however, fails to meet the requirements of due process. The condemnation proceedings necessarily consume substantial periods of time. Compare United States v. 37 Photographs, 402 U.S. 363, 371-72, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Deprivation of means of transportation for such periods requires an opportunity to be heard. Moreover, the filing of a $250 bond was an insuperable obstacle to Lee, and may be too great an obstacle to many car owners seeking to force the government to proceed with forfeiture proceedings. ³

In the case of Rich, the Service in its application of the statutes did not afford an adequate opportunity to be heard. Such an opportunity was not otherwise available to him as a matter of right. The three-judge court that originally heard these cases concluded that Rich could have obtained a hearing in which to contest his liability for his alleged violation of 19 U.S.C. § 1459 by utilizing 19 U.S.C. § 1608 to initiate forfeiture proceedings. 370 F.Supp. at 322. But, as the Service concedes, § 1608 relates only to the avoidance of summary forfeiture, see 19 C.F.R. §§ 162.45, 162.46 and 162.47, and property seized as security pursuant to 19 U.S.C. § 1594, as was Rich's car, is not subject to summary forfeiture.

Some provision for hearing is necessary under the circumstances here. The Supreme Court has spoken quite recently to the question. See, e. g., Mathews v. Eldridge, --- U.S. ----, ----, 96 S.Ct. 893, 897, 47 L.Ed.2d 18, 44, U.S.L.W. 4224, 4228-29 (1976). ⁴ Eldridge instructs us that the need of the vehicle owners in the cases before us to be free from unreasonable detentions of their vehicles must be balanced against the cost and inconvenience to the government of providing some means of prompt determination of the legality of the individual detentions. The cost to the government would not be great since, as Judge Oakes pointed out, 370 F.Supp. at 321, machinery is readily available and, as was conceded in oral argument, is now in use in § 1459 cases.

On the other hand, deprivation to the individual is often serious, involving as it does possible stranding without transportation at border points remote from a traveler's destination.

Balancing, as Eldridge requires, the cost and inconvenience to the government against the seriousness of the deprivation, we hold that when vehicles are seized for forfeiture or as security, action on petitions for mitigation or remission should be required within 24 hours, with notice of the charge, and with opportunity to file a written response and to make an oral appearance and that, if requested, some kind of hearing on probable cause for the detention before an officer other than the one making the charge should be provided within 72 hours if the petition is not granted in full.

Effected in the absence of such adequate procedures, the exactions from Rich and Lee were unlawful and must be returned.

Reversed and remanded for entry of judgment for Rich to recover of the United States $25.00 and costs and for Lee to recover of the United States $100.00 and costs. ⁵

1 19 U.S.C. § 1459 provides in pertinent part:

(T)he person in charge of any vehicle arriving in the United States from contiguous country, shall immediately report his arrival to the customs officer at the port of entry or customhouse which shall be nearest to the place at which such . . . vehicle shall cross the boundary line . . . and if such . . . vehicle have on board any merchandise, shall produce to such customs officer a manifest as required by law, and no such . . . vehicle shall proceed farther inland nor shall discharge or land any...