Putch v. United States

• Decision Date: 18 December 1970
• Docket Number: No. 16244,No. 16266.,No. 16265,16265,16244,16266.
• Citation: 353 F. Supp. 66
• Parties: Nick PUTCH et al. v. UNITED STATES of America. James W. HUFFMAN v. UNITED STATES of America. Eddie DOMINGUE, Jr., d/b/a United Service Company v. John N. MITCHELL, Attorney General of the United States.
• Court: U.S. District Court — Western District of Louisiana

353 F. Supp. 66

Nick PUTCH et al. v. UNITED STATES of America.

James W. HUFFMAN v. UNITED STATES of America.

Eddie DOMINGUE, Jr., d/b/a United Service Company v. John N. MITCHELL, Attorney General of the United States.

No. 16265, No. 16244, No. 16266.

United States District Court, W. D. Louisiana.

December 18, 1970.

H. F. Sockrider, Jr., Shreveport, La., for Nick A. Putch, Myrtle H. Singley and Henry A. Breedlove.

John M. Brown, Shreveport, La., for Mrs. A. T. McGuire and William A. Cantanese.

Charles E. Welsh, Bossier City, La., for Aaron Beam.

Donald E. Walter, U. S. Atty., for the United States.

No. 16265, W. D. La., Shreveport Division. No. 16244, W. D. La., Lake Charles Division. No. 16266, W. D. La., Lafayette Division.

REASONS FOR JUDGMENT

NAUMAN S. SCOTT, District Judge.

These matters were consolidated for purposes of trial. All plaintiffs sought an injunction against the seizure of certain pinball machines seized by the United States under the provisions of the Gambling Devices Act of 1962, 15 U.S.C.A. §§ 1171-1178, which provides that it shall be unlawful for any person during any calendar year to engage in the business of repairing, reconditioning, buying, selling, leasing, using or making available for use by others any gambling device under specified conditions unless such person has registered with the Attorney General and made certain information available to the Attorney General. Petitioners sought additional relief which it was not necessary to consider. Defendant filed an answer and a Motion to Dismiss predicated in part on the argument that petitioners were not properly before the Court because they had failed to exhaust the administrative remedies provided in the Act. 15 U.S.C. § 1177; 19 U.S.C. §§ 1607, 1608, and 1610.

15 U.S.C. § 1177 provides as follows:

"Any gambling device transported, delivered, shipped, manufactured, reconditioned, repaired, sold, disposed of, received, possessed, or used in violation of the provisions of this chapter shall be seized and forfeited to the United States. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violation of the customs laws; the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter, insofar as applicable and not inconsistent with the provisions hereof: Provided, That such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the customs laws shall be performed with respect to seizures and forfeitures of gambling devices under this chapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General."

The procedures by which petitioners may claim the seized property are set out in detail in 19 U.S.C. §§ 1607, 1608 and 1610. There is no allegation or pretense that petitioners have attempted to utilize or have utilized these procedures.

It is well established that petitioners are not entitled to the relief which they seek until they have exhausted their administrative remedies. Morgan v. United States, 107 F.Supp. 501 (W.D. Ky.1952); Rice v. Walls, 213 F.2d 693 (6 Cir. 1954), and Hewitt v. National Surety Corp., 130 F.Supp. 110 (N.D.Ga. 1955). The Morgan case, supra, provides as follows:

"The rule appears well settled that where a statute provides for an administrative remedy a party is not entitled to injunctive relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638; Macauley v. Waterman S. S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839; Smith v. Duldner, 6 Cir., 175 F.2d 629. The rule is applicable in the present case even though the plaintiffs' constitutional rights are alleged to be violated. Aircraft & Diesel Equipment Corp. v. Hirsch, supra, 331 U.S. 752, 67 S.Ct. 1493 91 L.Ed. 1796; Smith v. Duldner, supra, 6 Cir., 175 F.2d 629, 631. See Dodge v. Osborn, 240 U.S. 118, 36 S.Ct. 275, 60 L.Ed. 557; Bailey v. George, 259 U.S. 16, 20, 42 S.Ct. 419, 66 L.Ed. 816. The constitutionality of the statute under which the property was seized can be made an issue in the condemnation proceedings in the District Court. United States v. Childs, D.C., 43 F. Supp. 776; United States v. One Oldsmobile Sedan, D.C., 75 F.Supp. 83, 85; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345-346, 57 S.Ct. 816, 81 L.Ed. 1143; State of Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 138-139, 67 S.Ct. 544, 91 L.Ed. 794. Nor is the case removed from the operation of the rule because of any attack on the adequacy and constitutionality of the administrative review provided by the Act, which issues can be decided in the administrative hearing. Arrow Distilleries, Inc. v. Alexander, D.C., 24 F.Supp. 880, 882, affirmed 306 U.S. 615, 59 S.Ct. 489, 83 L.Ed. 1023; Myers v. Bethlehem Shipbuilding Corp., supra, 303 U.S. 41, 49, 58 S.Ct. 459 82 L. Ed. 638.

Plaintiffs' rights are thus fully protected by the administrative procedure provided by the Act, and they should be required to pursue that remedy instead of seeking injunctive relief through the pending actions. Myers v. Bethlehem Shipbuilding Corp., supra, 303 U.S. 41, 58 S.Ct. 459 82 L.Ed. 638; Macauley v. Waterman S. S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839."

Petitioners in the Rice case, supra, sought restitution to them as owners of slot machines alleged to have been wrongfully seized by agents of the United States under "pretended authority" of the Johnson Act, 15 U.S.C.A. §§ 1171-1177, which is the same Act (as amended in 1962) as is presently before the Court. As in the instant case the petitioners failed to file claims as...