United States v. Articles of Drug... WANS

• Decision Date: 13 July 1981
• Docket Number: Civ. No. 80-2112.
• Citation: 526 F. Supp. 703
• Parties: UNITED STATES of America, Plaintiff, v. ARTICLES OF DRUG ... WANS, etc., Defendants.
• Court: U.S. District Court — District of Puerto Rico

526 F. Supp. 703

UNITED STATES of America, Plaintiff, v. ARTICLES OF DRUG ... WANS, etc., Defendants.

Civ. No. 80-2112.

United States District Court, D. Puerto Rico.

March 28, 1981.

On Motion For Reconsideration July 13, 1981.

Raymond L. Acosta, U. S. Atty., Hato Rey, P. R., for the U. S.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

This is a civil in rem seizure action arising under the Federal Food, Drug, and Cosmetic Act ("Act"), 21 U.S.C. 301 et seq. The complaint alleges that the articles proceeded against, WANS suppositories and their components, are "new drugs" within the meaning of 21 U.S.C. 321(p), which may not be introduced or delivered for introduction into interstate commerce under 21 U.S.C. 355(a), since they have not been approved for marketing pursuant to 21 U.S.C. 355(b). The complaint also alleges that the seized articles are misbranded, while held for sale after shipment in interstate commerce, within the meaning of 21 U.S.C. 352(f)(1), in that their labeling fails to bear adequate directions for use.¹

Upon the filing of the complaint, the Clerk of the Court issued a Warrant of Arrest, as required by Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure ("Supplemental Rules"). Pursuant to the Warrant of Arrest, the United States Marshal seized the articles named in the complaint. Subsequently, Alcon Laboratories (Puerto Rico, Inc.) ("Alcon") filed a claim to the seized articles as provided for by Rule C(6) of the Supplemental Rules.

Alcon has moved to dismiss the complaint. For the reasons discussed below, the motion is denied.

Alcon first contends that the procedure used to seize the drugs violated its Fifth Amendment due process right and its Fourth Amendment right to be free from unreasonable seizures. Specifically, Alcon complains about the lack of any judicial scrutiny prior to the filing of the complaint and contends that before a warrant for arrest can issue, a judge is required to ascertain ex parte that the seizure is lawful and that it does not constitute an abuse of prosecutorial discretion. This Court has considered Alcon's arguments and has concluded that they are without merit.

Seizures under the Act are required to be accomplished according to the procedure in admiralty. 21 U.S.C. 334(b). Rule C(3), Supplemental Rules, provides that "(u)pon the filing of the complaint the clerk shall forthwith issue a warrant for the arrest of the vessel or other property that is the subject of the action and deliver it to the Marshal for service."² Although the seizure provisions of the Act and Rule C do not provide for any pre-seizure judicial inquiry, they consistently have been upheld and recognized as in accord with the due process clause of the Fifth Amendment. See e. g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Mitchell v. W. T. Grant Co., 416 U.S. 600, 612, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 263 n. 10, 90 S.Ct. 1011, 1018 n. 10, 25 L.Ed.2d 287 (1970); United States v. Olsen, 161 F.2d 669, 671 n. 9 (9 Cir., 1947), cert. denied, 332 U.S. 768, 68 S.Ct. 79, 92 L.Ed. 353 (1947); Cf., Abbott Laboratories v. Gardner, 387 U.S. 136, 147, 87 S.Ct. 1507, 1514, 18 L.Ed.2d 681 (1967); Natick Paperboard Corp. v. Weinberger, 498 F.2d 125, 127 (1 Cir., 1974); United States v. Articles of Hazardous Substance ... Troxler Hosiery Co., 588 F.2d 39, 42-43 (4 Cir., 1978).

In Ewing v. Mytinger & Casselberry, Inc., supra, the Supreme Court held that seizure proceedings under the Act and the rules of admiralty do not violate the due process clause of the Fifth Amendment. The Court specifically recognized that:

"The harm to property and business can ... be incalculable by the mere institution of proceedings. Yet, it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet, it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination." (Citations omitted; emphasis supplied.) 339 U.S. at 599, 70 S.Ct. at 873.

An identical constitutional challenge was made to the seizure provision of the Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq., in United States v. Articles of Hazardous Substance ... Troxler Hosiery Co., supra. That statute's seizure provision is modeled after 21 U.S.C. 334(a). 588 F.2d at 42. In rejecting the challenge, the Fourth Circuit concluded that the Supreme Court's holding in Ewing was controlling. Id. at 43.

The Court of Appeals for this Circuit in Natick Paperboard Corp. v. Weinberger, supra, relied on the Supreme Court's decision in Ewing to hold that a court does not even have jurisdiction to prohibit seizure while it determines whether an article is subject to the Act. While the Court of Alpeals did rule in that case that a court could, in circumstances not present here, consider a request for declaratory relief, the Court was careful to emphasize that:

"... we want to make clear that the existence of this limited jurisdiction (to consider a request for declaratory relief) does not permit the district court to halt in any way the seizure of ... (food) while the definitional issue is being resolved. We think the latter conclusion is compelled by Ewing and the purpose of Section 334." (Emphasis supplied.) 498 F.2d at 129.

In view of this ruling by the Court of Appeals for this Circuit, the position urged by Alcon would result in a meaningless exercise for the Court. The Court would not have jurisdiction to prohibit the institution of seizure under the Act even if the Court in a pre-seizure "review" were to find that the action might involve an abuse of discretion or was not supported by the statute. A court properly should decline to reach such an illogical result.

In support of its position, Alcon relies on recent Supreme Court cases which deal with private seizures under state law. Fuentes v. Shevin, supra (writs of replevin); Mitchell v. W. T. Grant Co., supra (enforcement of vendor's lien); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (garnishment). These cases are not applicable to the issues before the Court because this case involves the institution of enforcement action by the government under express statutory authority accompanied by substantial procedural safeguards.

Seizures under the Act are preceded by careful investigation and extensive, internal F.D.A. review. Only then is a proposed seizure recommended to the United States Attorney for filing. The United States Attorney reviews the action and makes an independent decision whether the action will be filed. See Ewing v. Mytinger & Casselberry, Inc., supra. The Supreme Court in Fuentes recognized that an opportunity for post-seizure judicial review is sufficient when action is taken by public officials to secure a public rather than private right and when prompt action is necessary. 407 U.S. at 91, 92 S.Ct. at 2000. The Court explicitly identified seizures of misbranded drugs as such an action. Id. at 92, n. 27, 92 S.Ct. at 2000, n. 27. Moreover, the Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 678-79, 94 S.Ct. 2080, 2089-2090, 40 L.Ed.2d 452 (1974), reaffirmed the holdings in Fuentes and Ewing that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. In Calero-Toledo the Supreme Court upheld a Puerto Rican statute that authorized the seizure, without prior judicial involvement, of vessels used for the transport of illegal narcotics.

Alcon also contends that the Fourth Amendment prohibition against unreasonable searches and seizures requires judicial intervention before the warrant for arrest can issue. The Court of Appeals for the Fourth Circuit squarely rejected that proposition in United States v. Articles of Hazardous Substance ... Troxler Hosiery Co., supra. The Troxler court held that compliance with the statute and Rule C of the Supplemental Rules was sufficient to satisfy the Fourth Amendment. In so holding, the court relied on Founding Church of Scientology v. United States, 409 F.2d 1146, 1150 (D.C.Cir., 1969), cert. denied 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969):

"(t)hough warrants are generally necessary for arrests of persons and for searches, the warrant requirement has not traditionally been imposed upon seizures of the type involved in this case — attachment of property in the course of civil proceedings. This does not mean that the Fourth Amendment does not apply to such seizures, in both its substantive prohibition against unreasonable seizures and its procedural requirement of judicial or quasi-judicial review of the decision to seize. It means merely that judicial restraint is imposed through a different form of proceeding than the showing of probable cause before a magistrate. In the case of ordinary civil attachments, the details of such proceedings are, even in the federal courts, left to state law. In cases in admiralty, the process is governed by the Admiralty Rules, later recodified as a supplement to the Civil Rules." (Footnotes omitted)

The Fourth Circuit's reasoning is persuasive and supports the same result in this case. Here, the issuance of the warrant of arrest and the subsequent execution of the warrant fully complied with the procedure of Supplemental Rule C. The Court holds that compliance with the requirements of Supplemental Rule C is sufficient to satisfy the Fourth Amendment.³

As an independent...