Sarit v. Drug Enforcement Admin.

• Decision Date: 30 January 1991
• Docket Number: Civ. A. No. 90-0296P.
• Citation: 759 F. Supp. 63
• Parties: Jorge SARIT and Denny Espaillat, Plaintiffs, v. DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

759 F. Supp. 63

Jorge SARIT and Denny Espaillat, Plaintiffs, v. DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.

Civ. A. No. 90-0296P.

United States District Court, D. Rhode Island.

January 30, 1991.

COPYRIGHT MATERIAL OMITTED

David N. Cicilline, Providence, R.I., for plaintiffs.

Michael P. Iannotti, Asst. U.S. Atty., Providence, R.I., and Sherri L. Thornton, U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

On July 28, 1989, the individual defendants in this case, Federal Drug Enforcement Agents Henry P. Roy and John Adams, in the midst of an investigation, entered the residence of the plaintiffs, Jorge Sarit and Denny Espaillat, conducted a search and then seized $41,448.00 in United States currency. Since then, the plaintiffs have tried, in a number of ways, to have that money returned to them.

On August 21, 1989, the plaintiffs moved for return of the money pursuant to Fed.R. Crim.P. 41(e) alleging that the currency was seized in a warrantless search. At that time, the government had already attempted to forfeit the same pursuant to Title 21 U.S.C. Section 881(d) and 19 U.S.C. Section 1602 et seq. This Court declined, therefore, on equitable grounds to rule on the 41(e) motion and determined that the constitutional issue should be addressed in the context of the forfeiture proceeding. See Order of October 13, 1989, Misc. No. 89-0112P. Plaintiffs next filed a motion for reconsideration. When the government filed its objection, the plaintiffs learned that their property had already been forfeited administratively. On December 29, 1989, after learning of the forfeiture, plaintiffs filed a motion to vacate the forfeiture based on lack of notice from the Drug Enforcement Agency ("DEA"), the other defendant in the instant action. On June 14, 1990, this Court denied that motion based on a lack of jurisdiction. See Order June 14, 1990, Misc. No. 89-0112. In that order, I noted that the issues previously raised by the plaintiffs would be addressed "if a proper complaint were filed under 28 U.S.C. § 1331." See U.S. v. Mosquera, 845 F.2d 1122, 1126 (1st Cir.1988). With that, we arrive at the motions now before this Court.

Plaintiffs have filed a civil rights action against the DEA and its agents, Roy and Adams, seeking the return of $41,448.00 which was allegedly, unlawfully seized in violation of the plaintiffs' fourth and fifth amendment rights. The defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b), (c) for failure to state a cognizable constitutional claim or in the alternative for summary judgment in their favor pursuant to Fed.R.Civ.P. 56. For the reasons outlined below, defendants' motions are denied.

Jurisdiction and the Administrative Procedure Act

The government first argues that the instant case should be dismissed for lack of jurisdiction under 28 U.S.C. § 1331 because plaintiffs may not bring this action against the United States (or the Drug Enforcement Agency) as the United States has not consented to suit. They contend, therefore, that the case must be dismissed on sovereign immunity grounds. The defendants argue that such dismissal is justified because the plaintiffs' complaint does not fall within the consent provided for in the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). They contend that the FTCA "does not comprehend federal constitutional torts." (emphasis added). Moreover, the government argues that "while the plaintiffs have not alleged jurisdiction under the FTCA ... in so far as plaintiffs seek to recover damages it is the only waiver of sovereign immunity even potentially offered." The government, however, has apparently misapprehended plaintiffs' claim. The plaintiffs, in their memorandum in support of their objection to defendants' motion to dismiss explain that they are seeking jurisdiction under 28 U.S.C. § 1331 and the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. As discussed, infra, it is by way of the APA that the plaintiffs intend to overcome sovereign immunity.

Plaintiffs, anticipating the government's argument that it had no notice of such claim of jurisdiction, state, citing to Dow Chemical v. U.S. Environmental Protection, 635 F.Supp. 126, 129 (M.D.La. 1986), that

"it is well established that when a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute. Moreover, the district court has a duty under Rule 8(a) of the Federal Rules of Civil Procedure to read the complaint liberally and determine whether the facts set forth justify it in assuming jurisdiction on grounds other than those in the pleading." Id. (citing Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980)). See Continental Casualty v. Canadian Universal Insurance Co., 605 F.2d 1340, 1343 (5th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

Because plaintiffs' complaint does present facts which establish that substantive rights may have been violated through the final agency action of forfeiture, see infra, this Court agrees that plaintiffs failure to articulate jurisdiction, under the APA is not fatal to the complaint. Moreover, because the government, although given ample time and opportunity to reply has not chosen to do so, I will go on to consider whether plaintiffs have overcome the sovereign immunity hurdle by way of the APA.¹

Section 702 of the APA provides a limited waiver of sovereign immunity:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that any agency or any officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. Id.

As I noted above, the government has not chosen to reply to plaintiffs' arguments regarding jurisdiction under the APA. This Court, in its research, however, has discovered a recent case, similar to the instant case, in which the government apparently did make arguments regarding the applicability of the APA to an administrative forfeiture proceeding. Because the court's opinion in that case, Sterling v. U.S., et al., 749 F.Supp. 1202 (E.D.N.Y. 1990), not only articulates the government's possible arguments but also responds to those arguments in an extremely well-reasoned and organized fashion, I quote extensively from Sterling as to the applicability of the APA.

The waiver of sovereign immunity under Section 702 is limited by the provisions of Sections 701 and 704 of Title 5. Section 701 provides that the APA does not apply where other statutes preclude judicial review, 5 U.S.C. § 701(a)(1), or where the contested agency action is one committed by law to agency discretion. 5 U.S.C. § 701(a)(2). Section 704 further bars review if there is an adequate remedy in another court. 5 U.S.C. § 704.

a. Money Damages

The government contends that the APA does not waive sovereign immunity in this case because plaintiff seeks monetary relief. The APA by its terms does not apply where the relief sought is money damages. 5 U.S.C. § 702. In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court noted, however, that Section 702's prohibition on claims for money damages does not extend to all situations where the claim could ultimately result in the payment of money by the federal government. 487 U.S. at 893 108 S.Ct. at 2731. Specifically, the Court concluded that "an equitable action for specific relief ... may include an order providing for the recovery of specific property or monies ..." Id. (citations omitted). The term "money damages," according to the Court, does not mean all forms of monetary relief, id. at 896 108 S.Ct. at 2733, but rather compensatory relief or a substitute for a suffered loss. Specific remedies, on the other hand, "are not substitute remedies at all, but attempts to give the plaintiff the very thing to which he was entitled. Id. at 895 108 S.Ct. at 2732 (quoting D. Dobbs, Handbook on the Law of Remedies 135 (1973) as quoted in Maryland Dep't of Human Resources v. Dep't of Health and Human Serv., 763 F.2d 1441, 1446 (D.C.Cir.1985)).

The complaint in this case seeks monetary damages, but in the exact amount seized from plaintiff and accordingly can be construed as requesting a specific equitable remedy; namely, the return of the moneys taken. See Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1099-100 (9th Cir.1990) (claim seeking return of property forfeited pursuant to 21 U.S.C. § 881 cognizable under APA); Willis v. United States, 787 F.2d 1089, 1092 (7th Cir.1986) (same). Consequently, the government's contention that the relief sought by plaintiff defeats jurisdiction under the APA is without merit.

b. Adequate Remedy

The APA precludes judicial review of a final agency action under its provisions if there is another court available which provides an adequate remedy to redress the alleged grievance. 5 U.S.C. § 704. Accordingly, if the claim raised can be adequately addressed in the Court of Claims, Section 704 precludes reliance on the APA. Estate of Watson v. Blumenthal, 586 F.2d 925, 934 (2d Cir.1978).

The government's contention that plaintiff's constitutional claim can be raised in the United States Claims Court is not persuasive.

The Court of Claims' jurisdiction is defined by the Tucker Act, which provides in part:

The United States Claims Court shall have jurisdiction to render judgment upon any claim against the

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