Menkarell v. Bureau of Narcotics

• Decision Date: 20 June 1972
• Docket Number: No. 71-1597.,71-1597.
• Citation: 463 F.2d 88
• Parties: Alfred R. MENKARELL, Appellant, v. BUREAU OF NARCOTICS et al.
• Court: U.S. Court of Appeals — Third Circuit

463 F.2d 88 (1972)

Alfred R. MENKARELL, Appellant, v. BUREAU OF NARCOTICS et al.

No. 71-1597.

United States Court of Appeals, Third Circuit.

Argued May 2, 1972.

Decided June 20, 1972.

Frederick C. Mezey, New Brunswick, N.J., Mezey & Mezey, New Brunswick, N.J., for appellant; Elliot H. Gourvitz, New Brunswick, N.J., on the brief.

Roger S. Steffens, Asst. U.S. Atty., Trenton, N. J., Herbert J. Stern, U.S. Atty., Newark, N. J., for appellees.

Before VAN DUSEN, GIBBONS and ROSEN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order granting the defendants' motion for summary judgment and dismissing the complaint. The plaintiff, Menkarell, the owner of a motor vehicle, seeks its return, or in the alternative its value. The car was seized by the individual defendants, agents of the Bureau of Narcotics. The complaint also names the United States as a defendant. The United States Attorney, appearing for all defendants, moved to dismiss on the ground that the car had been properly seized and forfeited to the United States pursuant to 49 U.S.C. § 782 et seq. (1970) because it had been used to transport contraband in violation of 49 U.S.C. § 781 (1970). The district court did not reach the propriety of the forfeiture, but dismissed the complaint for the reason that the action was barred by the two year statute of limitations in 28 U.S.C. § 2401(b) (1970). This ground for dismissal was not urged by the government. The defendants urge, however, that whether or not the action was time barred the summary judgment should be affirmed because the seizure and forfeiture were proper.

THE APPLICABLE STATUTE OF LIMITATIONS

The district court held that the two year bar in 28 U.S.C. § 2401(b) governed. The plaintiff contends that the six year bar in 28 U.S.C. § 2401(a) is applicable. Section 2401(b) applies to tort claims against the United States. It is an amendment of the Federal Tort Claims Act, Act of Aug. 2, 1946, ch. 753, tit. IV, 60 Stat. 842, 28 U.S.C. § 2671 et seq. (1970), and it was designed to constitute a bar only to those actions as to which that statute first eliminated the bar of sovereign immunity. The House Report on the statute makes this quite clear:

"The Committee on the Judiciary to whom was referred the bill (H.R. 779) to amend the Federal Tort Claims Act to increase the time within which claims under such act may be presented to Federal agencies or prosecuted in the United States district courts, having considered the same, report favorably thereon without amendment and recommend that the bill do pass." (emphasis added) H.R.Rep.No.276, 81st Cong., 1st Sess. (March 21, 1949). 2 U.S.Code, Cong. & Admin. News, p. 1226 (1949).

If the complaint was one which, prior to the 1940 enactment of the Federal Tort Claims Act, was barred by sovereign immunity, the district court's decision would be correct. But before 1940, under the predecessor of 28 U.S.C. § 1346(a)(2) (1970) the United States has consented to suits for claims for recovery of taxes, fees and penalties alleged to have been wrongfully or excessively exacted under color of federal statutes. See Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Carriso v. United States, 106 F.2d 707 (9th Cir. 1939). The Carriso court expressly rejected the contention that a suit to recover excessive surveyor's fees exacted by a Collector of Customs was an action sounding in tort. It was instead "a claim founded upon a law of Congress within the meaning of § 24(20) of the Judicial Code known as the Tucker Act, the predecessor of 28 U.S.C. § 1346(a)(2)." 106 F.2d at 712.

The Dooley opinion, construing the Tucker Act, makes it clear that an action to recover an unlawful forfeiture under the customs law, though in some respects analogous to a tort action, nevertheless is a claim founded upon a law of Congress, namely a revenue act. See also United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 31-32, 35 S.Ct. 499, 59 L.Ed. 825 (1915).

The complaint in this case alleges an unconstitutional seizure and forfeiture of a vehicle which the government claims was used to transport a contraband narcotic drug possessed with intent to sell in violation of those provisions of the Internal Revenue Code proscribing such possession. 49 U.S.C. §§ 781-782. A suit to recover a vehicle so seized and so forfeited is founded upon a law of Congress to the same extent that a suit to recover duties wrongfully exacted is founded upon a law of Congress. Since the claim in this case is for less than $10,000 the district court had jurisdiction concurrent with that of the Court of Claims. 28 U.S.C. § 1346(a)(2). This being the case the six year statute of limitations in 28 U.S.C. § 2401(a) rather than the two year statute of limitations in 28 U.S.C. § 2401(b) is applicable. Jaekel v. United States, 304 F.Supp. 993 (S.D.N.Y.1969).

THE FORFEITURE

The affidavits and answers to interrogatories establish that the motor vehicle owned by the plaintiff was seized on February 21, 1968 by two agents of the Bureau of Narcotics. An agent gave plaintiff a handwritten receipt saying:

"1967 Ford Mustang, New Jersey License MIN-643, was seized by me for violation of the Federal Narcotics Laws, 26 U.S.C. § 781-788. This vehicle was seized from Mr. Alfred Menkarell on February 21, 1968."

Alfred Menkarell is the plaintiff. The reference to 26 U.S.C. §§ 781-788 probably was intended to refer to 49 U.S.C. §§ 781-788. On March 5, 1968 the Acting District Supervisor of the Bureau of Narcotics wrote to Menkarell this ambiguous letter:

"Re: One Ford Hardtop Mustang

Serial Number 7T01T255333

The above-identified automobile registered in your name, was seized by Federal Narcotic Agents, February 21, 1968.

The automobile in question was used for the transportation of a quantity of narcotics.

Enclosed is a copy of Regulations Number 6, Relating to the Seizure, Forfeiture and Disposition of Vehicles Used to Transport Narcotic Drugs, Etc., under the Act of August 9, 1939, as amended by the Act of August 9, 1950.

Very truly yours,"

The statutory reference, with a little research, can be identified as 49 U.S.C. § 781 et seq. The "Regulations Number 6" are not identified in the present record, but probably are copies of what now appear in 21 C.F.R. Part 316, Subpart E, § 316.71 et seq. and which formerly appeared at 21 C.F.R. Part 330, § 330.1 et seq.

On March 11, 18, and 25, 1968 the Bureau of Narcotics caused to be published in The Trentonian, a newspaper published in Trenton, New Jersey, a legal notice in typically small type as follows:

"TREASURY DEPARTMENT, Bureau of Narcotics, Philadelphia, Pennsylvania, March 11, 1968. NOTICE is hereby given that on February 21, 1968, one 1967 Ford Hardtop Mustang, Motor Number None, Serial Number 7T01T255333, with accessories was seized 1464 Nottingham Way, Trenton, New Jersey for violation of the Act of August 9, 1939, U.S.C. Supp. V. Title 49 sec. 781-83. Any person claiming an interest in said property must file with the District Supervisor, 605 Custom House, 2nd and Chestnut Streets, Philadelphia, Pennsylvania, a claim and cost bond in the sum of $250. with sureties to be approved by said District Supervisor on or before April 1, 1969, otherwise the property will be declared forfeited and will be disposed of accordingly to law. John W. Bitzer, Acting District Supervisor."

Although the Bureau of Narcotics knew that Menkarell was the registered owner of the car and had his address it did not mail him a copy of the notice. Although the Bureau had the motor vehicle registration number of the car it included only the serial number in the notice.

After receipt of the March 5, 1968 letter quoted above Menkarell wrote to the Bureau of Narcotics advising that he had no knowledge of his vehicle having being used for illegal purposes and requesting its return. As a result of this letter two Agents of the Bureau of Narcotics interviewed Menkarell on March 25, 1968. Although the notice of forfeiture quoted above had already been run in The Trentonian on March 11, March 18, and was running in The Trentonian on that very day, the Agents did not call it to Menkarell's attention.

On April 1, 1968 Henry L. Giordano, Commissioner of Narcotics, responded by letter to Menkarell's request for the return of his car as follows:

"The petition for remission or mitigation of forfeiture of the above-described automobile submitted by you is hereby denied. The petition is denied since you were aware that your son, the person who used the vehicle in violation of the law, had previously been arrested and convicted in violation of the law, had previously been arrested and convicted for violating the marihuana laws at the time you permitted him to use the vehicle. Therefore, you are not entitled to relief under the policy of the Treasury Department. This policy is fully explained in the attached copy of Section 15.1 of Title 31 of the Code of Federal Regulations. You are assured that the seizure and forfeiture of the vehicle, as well as the action taken on the petition, are in strict accord with the statutory and case authority and the policy of the Treasury Department.

Sincerely yours,"

Again no mention was made of the forfeiture notice.

On April 4, 1968 the Narcotic District Supervisor, ex parte, signed a Declaration of Forfeiture. This declaration refers to the published notices and recites:

"As no claim was filed for the property within 20 days from the date of the first publication of the advertisement, as required, it is hereby declared that such property has been forfeited to the United States."

The Declaration of Forfeiture does not mention Menkarell's letter.

Menkarell did not see the published notice or the Declaration of Forfeiture until after this suit was started. His son's uncontradicted affidavit states:

"The said vehicle has never been used in any activities involving narcotics or any other illegal activities

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