U.S. v. Sixty Firearms, 3:CV-00-1470.

• Decision Date: 14 February 2002
• Docket Number: No. 3:CV-00-1470.,3:CV-00-1470.
• Citation: 186 F.Supp.2d 538
• Parties: UNITED STATES of America, Plaintiff, v. SIXTY FIREARMS and Various Rounds of Ammunition, Defendants, v. Theresa Lamplugh, Claimant.
• Court: U.S. District Court — Middle District of Pennsylvania

186 F.Supp.2d 538

UNITED STATES of America, Plaintiff, v. SIXTY FIREARMS and Various Rounds of Ammunition, Defendants, v. Theresa Lamplugh, Claimant.

No. 3:CV-00-1470.

United States District Court, M.D. Pennsylvania.

February 14, 2002.

Christopher H. Casey, U.S. Attorney's Office, Scranton, PA, Theodore B. Smith, III, U.S. Attorney's Office, Harrisburg, PA, for plaintiff.

Theresa Lamplugh, Wellsboro, PA, Joseph A. Ferry, West Chester, PA, for defendants.

MEMORANDUM

VANASKIE, Chief Judge.

This civil forfeiture action is before the Court on the Claimant's motion to dismiss. Claimant, Theresa Lamplugh, contends that this action was filed beyond the 120 day statute of limitations prescribed by 18 U.S.C. § 924(d)(1). The government asserts that the institution of an administrative forfeiture proceeding within the prescribed time limit satisfied the requirement of § 924(d)(1). Because the government's filing of an administrative forfeiture proceeding within 120 days of seizure of the property in question is sufficient to satisfy the statute, Claimant's motion to dismiss will be denied.

BACKGROUND

This is a civil action in rem brought to enforce the provisions of 18 U.S.C. § 924(d)(1) and 26 U.S.C. § 5872. (Complaint, ¶ 1.) Venue is proper pursuant to 28 U.S.C. § 1395 and 18 U.S.C. § 924. (Id., ¶ 2.) This Court has jurisdiction pursuant to 28 U.S.C. § 1395 and 18 U.S.C. § 924. (Id., ¶ 3.)

This action has its origins in an investigation of the late Harry C. Lamplugh, who had been engaged in the business of promoting and conducting gun shows under the name of Borderline Gun Collectors Association. His wife, Theresa Lamplugh, the Claimant in this action, had obtained a federal firearms license to buy and sell firearms after Harry Lamplugh had been advised that he was ineligible to possess a federal firearms license based on a prior felony conviction.¹ Suspecting that Harry Lamplugh was in possession of and dealing in firearms, the government conducted searches of his residence and his son's residence on May 25, 1994. As a result of this search, various firearms and ammunition were seized. The firearms and ammunition ("defendant property") were appraised to have a value of $15,061.

Section 924(d)(1) of title 18 U.S.C. Authorizes the forfeiture of any firearm or ammunition involved in or used in any knowing violation of the statute prohibiting possession of a weapon by a convicted felon. On or about June 30, 1994, the government commenced an administrative forfeiture proceeding with respect to the 60 firearms and ammunition at issue in this litigation. The administrative forfeiture proceeding was duly advertised in a newspaper. On or about August 1, 1994, Theresa Lamplugh filed her claim to the property in question as well as a bond in the amount of $2500. No further action on the forfeiture of the property was apparently taken by the government until August 16, 2000, when this judicial action was commenced.²

DISCUSSION

Presently pending before the Court is Claimant Theresa Lamplugh's motion to dismiss pursuant to Fed.R.C.P. 12(b)(1), in which she claims, "this forfeiture action was untimely filed and, consequently, this Court has neither subject matter nor in rem jurisdiction over this matter." (Claimant's Br. in Supp. of Motion to Dismiss, p. 3.) When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. NMC Homecare, Inc. v. Shalala, 970 F.Supp. 377, 382 (M.D.Pa.1997). In reviewing such a motion, the court can consider not only the pleadings, but any additional evidence made available to the court. Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.1997). Unlike a Rule 12(b)(6) motion, under a 12(b)(1) motion to dismiss, "`no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material fact will not preclude the trial court from evaluating for itself the merits of the jurisdictional claim.'" Robinson, 107 F.3d at 1021 (citing Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). A complaint may be dismissed for lack of subject matter jurisdiction on a 12( b)(1) motion only if it appears to a certainty that a colorable claim cannot be asserted. Smith v. Social Security Administration, 54 F.Supp.2d 451, 453 (E.D.Pa.1999.)

Claimant, in support of her motion, asserts that the government's "Verified Complaint of Forfeiture, in rem" was filed outside the 120 day limitations period prescribed by 18 U.S.C. § 924(d)(1). Section 924(d)(1), in pertinent part, states, "[a]ny action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure." Section 924(d)(1) further provides that "all provisions of the Internal Revenue Code of 1986 relating to the seizure, forfeiture and disposition of firearms ... shall, so far as applicable, extend to seizures and forfeitures under [§ 924(d)]." Significantly, the Internal Revenue Code mandates that administrative proceedings be commenced where, as here, the value of the property subject to forfeiture is no more than $100,000.³ Thus, there are two types of "actions or proceedings" pertinent to forfeiture of firearms and ammunition under § 924(d)(1) — administrative and judicial.

In the case at bar, there is no dispute surrounding the administrative forfeiture proceedings. The defendant property has an appraised total value of $15,061. (Complaint, ¶ 5.) As noted above, the property was seized on May 25, 1994. The administrative forfeiture was commenced around June 30, 1994, at which time Harry Lamplugh was advised of the proceedings by letter. (Id., ¶ 21.) The action was advertised in USA Today on July 14, 21, and 28, 1994. (Id., ¶ 22.) On August 1, 1994, Theresa Lamplugh timely filed her claim and cost bond in the amount of $2,500. (Id., ¶ 23.)

The dispute here surrounds the judicial forfeiture. The United States filed its Verified Complaint of Forfeiture on August 16, 2000. Claimant argues that this action should be dismissed for lack of subject matter jurisdiction because the judicial forfeiture was untimely, having been commenced "six years, two months and twenty-two days after the seizure." (Claimant's Mot. to Dismiss, ¶ 6.)

The issue presented by the Claimant requires the interpretation of the final sentence of § 924(d)(1), which reads: "[a]ny action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure." By using the phrase "[a]ny action or proceeding," did Congress mean "every action or proceeding," or "either action or proceeding?" In other words, in order to satisfy the requirements of the statute, is it necessary for the government to initiate both administrative forfeiture and judicial forfeiture within one hundred and twenty days of the seizure, or is it sufficient to bring only the administrative forfeiture action within the required time limit, thus tolling the statute for the purposes of a later action in court?

Claimant's argument focuses on Rule 2 of the Federal Rules of Civil Procedure, which provides, "There shall be one form of action to be known as `civil action.'" Claimant points to the Advisory Committee Notes that follow Rule 2, which state "2. Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules." (Advisory Committee Note No. 2.) Thus, claimant asserts, "when Congress used the word `action' in this forfeiture statute, it could have only meant the `action' designated by Rule 2 of the Federal Rules of Civil Procedure, a `civil action'. The instant civil action was not initiated within the statutorily mandated one hundred and twenty days of the seizure of the defendant property." (Claimant's Br. in Supp. of Mot'n to Dismiss, p. 3.)

The government, in response, asserts:

There are two immediate problems with this reasoning: First, section 924(d) does not contain any reference to an action at law, so the Advisory Committee Notes have no relevance to the construction of the statute of limitations set forth in section 924(d). Second, section 924(d) does refer to the time within which an action or proceeding, rather than just an action, must be commenced, and claimant conceded that the United States brought an administrative forfeiture proceeding within the required 120 days.

(Pl.'s Br. in Opp. to Mot'n to Dismiss, p. 3.)

Although sparse, the reported case law interpreting the limitations provision in 924(d)(1) preponderates in favor of the government's position. In this regard, there are four district court decisions that have dealt with this specific issue. Three of the courts found that the language of 924(d)(1) requires only the institution of the administrative forfeiture within the 120 day time period, while one court found that the statute requires the filing of both the administrative and judicial forfeiture actions within the 120 day period. The four decisions will be reviewed in the chronological order in which they were decided.

The first case is United States v. Twelve Miscellaneous Firearms, 816 F.Supp. 1316 (C.D.Ill.1993). In that case, the seizure occurred in September of 1991 and an action was not filed in court until October of 1992, over one year later. Rejecting the Claimants' argument that the action was untimely, the court found that "the phrase `any action or proceeding,' as stated in § 924(d)(1), does not refer simply to court actions, as Claimants argue. Rather, the phrase also contemplates administrative actions." Id. at 1317. The court explained:

Clearly the phrase "any action or proceeding" could not be read so narrowly as to preclude administrative proceedings. More importantly, however, § 924(d)(1) is governed by "all provisions of the Internal Revenue Code ... relating to seizure, forfeiture and disposition of firearms ...." The Internal Revenue Code mandates...