Scarabin v. Drug Enforcement Admin.

Citation919 F.2d 337
Decision Date18 December 1990
Docket NumberNo. 90-4672,90-4672
PartiesJeffrey M. SCARABIN, Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Victor L. Roy, III, Baton Rouge, La., for petitioner.

Constantine D. Georges, Asst. U.S. Atty., New Orleans, DEA, Office of Chief Counsel, Asset Forfeiture Sec., Arlington, Va., for respondent.

Petition for Review of an Order of the Drug Enforcement Administration.

Before GEE, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

FACTS

Petitioner, Jeffrey Scarabin (Scarabin), operates a fuel dock and marine supply business at the Port Eads Marina in Plaquemines Parish, Louisiana. Port Eads is located about twenty nautical miles from the nearest road and is accessible only by aircraft and boat. At about 3 o'clock a.m. on June 1, 1990, personnel of the Plaquemines Sheriff's Department and the Drug Enforcement Administration (DEA) raided the Marina and found two marijuana cigarette butts on the premises, but not in the vicinity of Scarabin. Scarabin was arrested and charged with possession of marijuana, but the charges were later dismissed for lack of evidence.

At the time of Scarabin's arrest, the Sheriff seized $12,360.00 in cash from Scarabin and turned it over to the DEA for forfeiture as proceeds from drug deals. On July 2, pursuant to 19 U.S.C. Sec. 1607, the DEA sent a Notice of Seizure to Scarabin outlining alternative procedures available for contesting the forfeiture. Additionally, the notice was published on July 11 in USA Today. See 19 U.S.C. Sec. 1607.

On July 25 Scarabin filed a motion with the DEA for expedited release of the property. Albeit on a technicality, that motion was correctly denied by the DEA because expedited release is appropriate only for funds seized for possession of personal use quantities of drugs, and Scarabin's money was seized as purported proceeds of drug sales. Having had no other petitions or actions filed by Scarabin in the matter, the DEA administratively forfeited the funds to the United States pursuant to 21 U.S.C. Sec. 881 and 19 U.S.C. Secs. 1607 & 1608. On November 5, Scarabin filed this action in this court as a petition for review of a final agency decision pursuant to 21 U.S.C. Sec. 877 and Federal Rules of Appellate Procedure 15(a).

ANALYSIS

Despite the DEA's protestations to the contrary, this court does have jurisdiction over this petition for review of the DEA's administrative forfeiture of Scarabin's property under 21 U.S.C. Sec. 877, as a review of a final decision by the Attorney General through an authorized agency. Our review, however, is limited to determining whether the agency followed the proper procedural safeguards when it declared Scarabin's property summarily forfeited. See, e.g., Floyd v. United States, 860 F.2d 999 (10th Cir.1988) (court did not abuse discretion to retain jurisdiction over motion to return unlawfully seized property even after the agency initiated administrative forfeiture where forfeiture was not begun until more than two months after petition was filed); Robinson v. United States, 734 F.2d 735 (11th Cir.1984) (court had power to retain jurisdiction and enter default judgment in suit to return property seized by customs official when agency failed to file for forfeiture until ten months after seizure of property and never answered the complaint). Judicial review on the merits of an administrative forfeiture is barred, however, when the party elects an administrative remedy instead of a judicial one. See, e.g., United States v. One 1970 Buick Riviera Bearing Serial No. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972) (Attorney General has unreviewable discretion over remission or mitigation of forfeitures); United States v. One 1961 Cadillac, 337 F.2d 730, 733 (6th Cir.1964) (remitting a forfeiture is an act of grace by executive, and courts have not been granted jurisdiction to...

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28 cases
  • Albajon v. Gugliotta
    • United States
    • U.S. District Court — Southern District of Florida
    • September 7, 1999
    ...review of the merits of the administrative forfeiture decision when he chose to disregard his administrative remedy. Scarabin, 919 F.2d 337, 338 (5th Cir.1990), citing United States v. One 1970 Buick Riviera Bearing Serial No. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.)(Attorney General h......
  • US v. Millan-Colon, S9 91 Cr. 685 (SWK).
    • United States
    • U.S. District Court — Southern District of New York
    • October 8, 1993
    ...court retains jurisdiction to correct the impropriety. Onwubiko v. United States, 969 F.2d at 1398; see also Scarabin v. Drug Enforcement Admin., 919 F.2d 337, 338 (5th Cir.1990) (holding that district court's review is "limited to determining whether the agency followed the proper procedur......
  • Concepcion v. US, CV 95-5337.
    • United States
    • U.S. District Court — Eastern District of New York
    • August 30, 1996
    ...to review a decision of an administrative agency which amounts to a refusal to exercise its discretion. Scarabin v. Drug Enforcement Admin., 919 F.2d 337 (5th Cir. 1990); See In Re Matter of $67,470.00, 901 F.2d 1540 at 1544 (11th Cir.1990) (a federal court may have jurisdiction to review a......
  • U.S. v. Derenak
    • United States
    • U.S. District Court — Middle District of Florida
    • November 23, 1998
    ...proper procedural safeguards when it declared [defendant's] property summarily forfeited." See id. (citing Scarabin v. Drug Enforcement Admin., 919 F.2d 337, 338 (5th Cir.1990)). Indeed, a number of courts agree that the federal courts retain this limited form of jurisdiction. See, e.g., We......
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