Walker v. United States

• Decision Date: 23 September 1977
• Docket Number: No. CV276-102.,CV276-102.
• Citation: 438 F. Supp. 251
• Parties: William Q. WALKER, Jr., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Georgia

438 F. Supp. 251

William Q. WALKER, Jr., Plaintiff, v. UNITED STATES of America, Defendant.

No. CV276-102.

United States District Court, S. D. Georgia, Brunswick Division.

September 23, 1977.

Terry L. Readdick, Taylor, Bishop & Lee, Brunswick, Ga., for plaintiff.

William T. Moore, Jr., U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

LAWRENCE, District Judge.

On January 25, 1971, plaintiff sold a Beachcraft Baron aircraft, ID # N214V, to Alfred William Harrison for a $10,000 downpayment and a $35,000 chattel mortgage. The Bureau of Customs seized the plane on January 27th on the ground that it was being used in the illegal importation of marijuana. Harrison was convicted of Customs violations. The Government has stipulated that Walker, who sold the aircraft to Harrison, was innocent of any wrongdoing in respect to the crime.

Plaintiff petitioned for remission of forfeiture. Pursuant to the statute and Regulations (19 U.S.C. § 1618; 19 C.F.R. § 23) and Bureau of Customs Circular ENF-4-PEN, November 29, 1967, the aircraft was released to plaintiff on May 10, 1071, upon receipt of his check for $9,592.84. That amount represented the appraised value of the aircraft less Walker's security interest. Plaintiff stopped payment on the check and the Beachcraft was reseized on June 5, 1971. Customs again released the aircraft to plaintiff on July 22, 1971, upon the receipt of the amount of $9,592.84 paid by certified check. The payment was made by Mr. Walker under protest. Subsequently he brought the present action against the United States. The suit is in two counts. The first is based on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff alleges that the payment made of $9,592.84 in order to recover the aircraft constitutes a deprivation of property without due process and further that the Government was negligent in storing and caring for it in the course of the seizure which resulted in damages exceeding $10,000.

Jurisdiction under Count Two is predicated upon the Tucker Act, 28 U.S.C. § 1346(a)(2). It is alleged that the seizure by Customs created an implied bailment and that the damage by negligent storage of the aircraft did not exceed $10,000.¹

The Government has moved for summary judgment. Oral argument was held on June 23, 1977. Both sides filed extensive briefs with accompanying affidavits.

COUNT ONE

A. The Negligence Claim

Plaintiff alleges in the Federal Tort Claims action that the Government's negligent care of the aircraft during the six months it was in custody of Customs caused damages exceeding $10,000. The statute of limitations for claims under that Act is two years. 28 U.S.C. § 2401(b). Proper presentment is made when Customs receives written notification. 28 C.F.R. § 14.2(a); Steele v. United States, 390 F.Supp. 1109 (S.D., Cal.). In order to maintain an action under FTCA, the plaintiff must present timely written notice to the appropriate agency. See Young v. United States, 372 F.Supp. 736 (S.D., Ga.).

The aircraft was originally released to plaintiff on May 10, 1971. The claim for damages was received by the Government on May 16, 1973, after the statute of limitations had run. Upon oral argument on the Government's motion for summary judgment, counsel for Mr. Walker conceded that the negligence feature of Count One is barred.

B. The Due Process Claim

Plaintiff argues that his deprivation of property claim is not barred by the statute and presents a due process issue which is not precluded by any exception in the Act.

1. The Statute of Limitations

The two year statute of limitations applies to the due process claim. The filing of an administrative claim is a jurisdictional prerequisite to a proceeding under the Tort Claims Act. Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227 (3rd Cir.), cert. den., 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135. To come within the statute of limitations, the claim must be presented within two years after the claim arises. 28 U.S.C. § 2401(b). The Regulations define presentment as follows, 28 C.F.R. § 14.2(a):

"For purposes of the provisions of section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. . . ."

The Government contends that the entire claim arose on May 10, 1971, when the plane was first released to the plaintiff. If such is the case, plaintiff's constitutional claim would be barred since the Government did not receive notice thereof until May 16, 1973.

On the other hand, plaintiff maintains that the claim of deprivation of due process did not arise until July 22, 1971, when he paid the appraised value and took possession of the aircraft. Under that view, the notice of the claim is within the period of the statute of limitations. The Government replies that the May 16th claim was insufficient and that the requisite information was not received until August, 1975.²

An administrative claim filed without a sum certain is insufficient to confer jurisdiction on the courts. Allen v. United States, 517 F.2d 1328 (6th Cir.). Such a claim is a nullity and does not toll the running of the statute. Avril v. United States, 461 F.2d 1090 (9th Cir.). Here, however, plaintiff made a claim for $20,000 which was received by Customs on May 16, 1973. The record does not reveal the supporting evidence submitted by plaintiff in 1975, but the May 16, 1973 claim appears to satisfy the minimal statutory and regulatory requirements.

The period of limitations does not begin to run until plaintiff has the right to enforce his cause of action. Dore v. Kleppe, 522 F.2d 1369 (5th Cir.); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir.). This Court finds that plaintiff's constitutional claim arose on July 22, 1971, when he gave Customs a certified check for return of the aircraft. It follows that notice of the administrative claim on May 16, 1973, was within the statute of limitations.

2. The Tort Claims Exception to Governmental Liability

The Government contends that the due process claim falls within the following exception to liability under the Federal Tort Claims Act (28 U.S.C. § 2680):

"The provisions of this chapter and section 1346(b) of this title shall not apply to —

. . . . .

(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer."

The issue here is whether the due process claim is one "arising in respect of ... the detention of any goods." Plaintiff argues that his claim does not fall within the exception since it arose after the detention of the aircraft. In support of this position, counsel cites Sarkisian v. United States, 472 F.2d 468 (10th Cir.) and Boston v. Stephens, 395 F.Supp. 1000 (E.D., Ohio). These cases are inapposite. They deal with the requirement of promptitude by Customs under 19 U.S.C. § 1603 and unwarranted delay amounting to a violation of due process.³

The cases cited by the Government are not particularly helpful to the inquiry. See United States v. One (1) 1972 Wood, 19 Foot Custom Boat, 501 F.2d 1327 (5th Cir.); United States v. 1500 Cases, More or Less, 249 F.2d 382 (7th Cir.); S. Schonfeld Co., Inc. v. SS Akra Tenaron, 363 F.Supp. 1220 (D.S.C.); States Marine Lines, Inc. v. Shultz, 359 F.Supp. 512 (D.S.C.); United States v. Articles of Food, 67 F.R.D. 419 (D.Idaho). In all of these cases claims for loss or damage to goods while held by Customs were dismissed. Here, plaintiff seeks to recover the payment he made for return of the aircraft rather than damages to the aircraft. In Alliance Assurance Co. v. United States, 252 F.2d 529 (2nd Cir.) it was held that misplaced goods are not detained goods and do not come within the exception. The reasoning in that case, however, has not been followed by other courts.⁴

It would seem that the deprivation claim would come within the literal language of the exception because it grows out of the "detention" of the aircraft. On the other hand, such a claim does not appear to be of the character sought to be excepted in the statute. The Fifth Circuit has suggested that the solution is to show an unconstitutional forfeiture under the Tucker Act. United States v. One (1) 1972 Wood, 19 Foot Custom Boat, supra, 501 F.2d 1327. However, a decision on this issue is not necessary.

3. The Due Process Issue

The essence of this claim, as expressed in plaintiff's brief, is "to recover damages for the willful exaction of money from him as a condition precedent to the return of his extremely valuable aircraft." Applying applicable regulations, the Secretary remitted forfeiture of the aircraft upon plaintiff's payment of the difference between the appraised value of the aircraft and his equity interest. The statute provides that the Secretary may remit a forfeiture "upon such terms and conditions as he deems reasonable and just." 19 U.S.C. § 1618.⁵

Neither side has cited, and I have not found, a case which involves the validity of the terms or conditions of a remission. A review of recent forfeiture cases lends a degree of guidance. In United States v. U.S. Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, the Government sought forfeiture of cash used in a book-making operation under 26 U.S.C. § 7302. Examining the history of the forfeiture statutes, the highest Court noted the uneasy balance between traditional forfeiture doctrine and the Fifth Amendment. The Court concluded, however, that § 7302 must be...