United States v. One 1957 Buick Roadmaster, 17478.

• Decision Date: 03 November 1958
• Docket Number: No. 17478.,17478.
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1957 BUICK ROADMASTER, Motor No. 7D1077697, Defendant.
• Court: U.S. District Court — Western District of Michigan

167 F. Supp. 597

UNITED STATES of America, Plaintiff, v. ONE 1957 BUICK ROADMASTER, Motor No. 7D1077697, Defendant.

No. 17478.

United States District Court E. D. Michigan, S. D.

November 3, 1958.

Fred W. Kaess, U. S. Atty., Donald F. Welday, Jr., Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Garan, Lucow & Miller, Detroit, Mich., for petitioner General Motors Acceptance Corp.

FREEMAN, District Judge.

In this case, the United States filed a libel of information alleging that one 1957 Buick Roadmaster automobile had been used to transport one hundred and forty-six grains of heroin, in violation of 49 U.S.C.A. §§ 781-788, and praying for the relief that is customary in such cases, including condemnation and forfeiture of the automobile. The libel showed that one David Berry was the registered owner of the car and that General Motors Acceptance Corporation (hereinafter called GMAC) holds a lien of $3,178.50 on it. David Berry has failed to appear in this proceeding and an order of default has been entered. General Motors Acceptance Corporation filed its answer and this matter is now before the court for decision on GMAC's petition for judicial review under the Administrative Procedure Act, 5 U.S. C.A. § 1001 et seq.

The petition for review under the Administrative Procedure Act alleges, substantially, that GMAC filed a petition for remission and/or mitigation of a forfeiture, pursuant to the provisions of 19 U.S.C.A. § 1618 and Executive Order No. 6166 (5 U.S.C.A. §§ 124-132 and note), with the United States Attorney and that this petition for remission was denied by the Attorney General of the United States for the reasons contained in a letter from the United States Department of Justice to GMAC dated June 2, 1958. Copies of the paper comprising the petition for remission and the denial thereof are attached to GMAC's petition for judicial review, which further states that the denial of GMAC's petition for remission by the Attorney General constitutes a deprivation of property without due process of law in that said denial is arbitrary, capricious and an abuse of discretion and otherwise not in accordance with the law.

Oral arguments have been made and briefs have been filed by GMAC and the government. GMAC contends that this court has jurisdiction to review the denial of its petition for remission by the Attorney General under Section 1009, Title 5 U.S.C.A., the Administrative Procedure Act, since the denial by the Attorney General constitutes "agency action" adversely affecting the petitioner. The government contends that there is no jurisdiction in this court to review the Attorney General's refusal to mitigate or remit this forfeiture since this agency action is by law committed solely to the discretion of the Attorney General and therefore is within an exception to the operative provisions of the Administrative Procedure Act (Section 1009, 5 U.S.C.A.).

Section 1009, 5 U.S.C.A., provides, in pertinent part:

"§ 1009. Judicial review of agency action.

"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.

"(a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."

In libel actions such as the case at bar, Congress has granted to the Secretary of the Treasury the power to remit or mitigate the forfeiture in his discretion where certain findings are made by him.

Section 1618, Title 19, U.S.C.A., provides in part:

"§ 1618. Remission or mitigation of penalties.

"* * * the Secretary of the Treasury, * * * if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto."

The powers granted by the above section to the Secretary of the Treasury have been transferred to the Attorney General by Executive Order No. 6166 (5 U.S.C.A. §§ 124-132 and note).

The question now before the court is whether the action of the Attorney General, in denying any remission or mitigation to GMAC, is reviewable by this court under the provisions of Section 1009, Title 5 U.S.C.A. This question does not appear to have been previously decided in any reported case.

It is quite true, as has been contended by the petitioner, that the case law indicates that Section 1009, 5 U.S. C.A., is intended to be broadly construed and applied so as to grant judicial review of administrative decisions wherever it is possible to do so. In Heikkila v. Barber, 1953, 345 U.S. 229, 232, 73 S.Ct. 603, 605, 97 L.Ed. 972, the Supreme Court said that the legislative history, "together with the broadly remedial purposes of the Administrative Procedure Act counsel a judicial attitude of hospitality towards the claim that § 10 greatly expanded the availability of judicial review."

On the other hand, it is also true, as the government's argument emphasizes, that Section 1009 expressly prohibits any consideration by this court of "agency action" that has been "by law committed to agency discretion." The petitioner attempts to avoid the force of this exception to the power of judicial review granted by Section 1009 by citing to the court cases where the courts have held that an "abuse of discretion" by the administrative agency has been held to be subject to judicial review. None of the cases so cited discuss or decide a question of the right to judicial review of an exercise of discretion under Section 1618, Title 19 U.S.C.A. In Heikkila v. Barber, supra, the Supreme Court was faced with the question of whether administrative decisions made under the Immigration Act of 1917 were subject to the provisions of Section 1009, 5 U.S.C.A. The court there said 345 U.S at page 233, 73 S.Ct. at page 605:

"No easy answer is found in our decisions on the subject. Each statute in question must be examined individually; its purpose and history as well as its text are to be considered in deciding whether the courts were intended to provide relief for those aggrieved by administrative action."

After an examination of the history and purpose of the Act under question in that case, the court held that the Administrative Procedure Act did not grant a judicial review of agency action pursuant to the Immigration Act of 1917. Therefore, in the case at bar, it is necessary to examine the history and purposes of the statute granting the power to remit and mitigate forfeitures to the Attorney General.

Four cases cited by the government show the history and purpose of this statute and seem to be decisive of the question now before this court. In United States v. One 1946 Plymouth Sedan, D.C.E.D.N.Y.1946, 73 F.Supp. 88, the court was faced with the question whether it had the power to release the vehicle upon the posting of a bond. In the course of its decision on this issue, the court discussed at length the history of the forfeiture statutes. The court showed that the underlying concept of these statutes and this statute in particular was that the thing forfeited was noxious in and of itself and that, therefore, the owner's innocence had no bearing upon the question of whether the object forfeited was or was not to...