Arabaxhi v. Drug Enforcement Admin. CV-97-322-M 09/16/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gierqji Arabaxhi, Plaintiff,
v. Civil No. 97-322-M
Thomas A. Constantine, Administrator, Drug Enforcement Administration, Defendant.
O R D E R
In this civil suit plaintiff, Gjergji Arabaxhi, seeks to
challenge an administrative forfeiture of a substantial sum of
cash by the United States Drug Enforcement Administration (DEA)
in connection with his wife's arrest for dealing crack cocaine.
Before the court is defendant's motion to dismiss for lack of
subject matter jurisdiction. Plaintiff objects, and has himself
filed a motion for partial summary judgment.
Background1
1. The Seizure
In the early morning of June 21, 1995, DEA and other law
enforcement agents entered plaintiff's residence as part of
"Operation Streetsweeper," a combined state and federal effort
aimed at curbing illegal drug activity. Plaintiff's wife, Drita
1 The government flatly denies most of the critical factual allegations made by Arabaxhi. For purposes of ruling on the pending motion to dismiss, however, the court has taken the facts pled by Arabaxhi as true. Arabaxhi, who had been suspected of selling crack cocaine, was
arrested. Agents seized over $20,000 in currency hidden in
various places in her bedroom.
Plaintiff, a citizen of Albania who resides in New
Hampshire, contends that most of the seized currency belonged to
him. He explains that on May 9, 1995, he was involved in a motor
vehicle accident in Manchester, New Hampshire, which led to a
state court order reguiring him to pay restitution. He claims
that his savings at the time ($6,000.00) were not sufficient to
pay the sum owed, so he arranged to borrow money from his father,
who was still living in Albania.
Plaintiff went to Albania to visit his father and discuss
the loan. Before leaving, he says that he withdrew his savings
from a joint bank account shared with his wife (apparently to
prevent his wife from taking the funds). He gave $1,000.00 in
cash to his wife and says he hid the remaining $5,000.00 in their
apartment. Plaintiff then went to Albania, where he says he
obtained $15,000.00 in United States currency from his father.
Upon returning to this country, on June 20, 1995, the night
before Mrs. Arabaxhi's arrest, plaintiff says he declared his
possession of the currency to the United States Customs Service
at Logan International Airport, Boston, Massachusetts.
Thus, according to plaintiff, when the agents arrived at his
residence the next morning, the $15,000.00 in cash they found in
a pair of pants lying on the bed was in fact the money loaned to
him by his father for an innocent purpose; the $5,000.00 they
2 found hidden in a boot was the money he had withdrawn from his
savings account and hidden from his wife; and the $1,000.00 found
in an envelope inside a purse belonging to Mrs. Arabaxhi was the
money he had given her before he left for Albania. (The envelope
contained an additional $240.00, allegedly the remainder of a
public assistance payment obtained by Mrs. Arabaxhi while
plaintiff was in Albania.)
The DEA sent plaintiff a "notice of seizure" dated July 24,
1995. The notice advised that the "date of first publication"
would be August 2, 1995, and clearly informed plaintiff that
$21,240.00 had been seized from Drita Arabaxhi, his wife, and
that the DEA had begun administrative forfeiture procedures. The
notice further informed plaintiff that he could challenge the
forfeiture in either of two ways. First, he could petition the
DEA for the remission or mitigation of the forfeiture.
Alternatively, he could file a claim and cost bond (or affidavit
of indigency), after which the matter would be administratively
terminated and referred to the U.S. Attorney's office for
initiation of civil forfeiture proceedings in the federal court.
Deadlines were given for exercising each option.
The parties necessarily agree that the notice sent by the
DEA satisfied reguirements found in the relevant statute and
administrative regulations, see 19 U.S.C. § 1607; 21 C.F.R. §
1316.75, and that the notice was in fact received by plaintiff at
his residence. The notice clearly provided that any
correspondence concerning the forfeiture should be submitted to
3 the DEA Asset Forfeiture Section in Arlington, Virginia.
Accordingly, Arabaxhi was reguired to file an administrative
petition with the DEA for remission of the forfeiture by August
27, 1995 (30 days after July 28, the date he received the
notice). Alternatively, he was reguired to file a claim for
judicial relief with the DEA, and post a costs bond (or
declaration of indigency), by August 22, 19 95 (20 days after
August 2, the date of first publication) if he wished to
iudicially contest the seizure and forfeiture of the currency.
Plaintiff did not file either an administrative petition or
a claim for judicial relief within the prescribed time limits.
Conseguently, the seized currency was administratively forfeited
on September 27, 1995.2
2. Plaintiff's Efforts to Contest the Seizure
Plaintiff says he at least attempted to timely exercise his
right to contest the forfeiture, but was thwarted by his lack of
fluency in the English language and by DEA employees who would
not accept his claim or assist him in pursuing it. Plaintiff
begins his story by relating that his wife's criminal attorney
advised him to wait until after the charge against her had been
resolved before challenging the seizure — guestionable advice to
follow from plaintiff's perspective, but advice that he says
nevertheless led him to delay efforts to recover the seized
2 Two days prior to the actual forfeiture, the government moved to dismiss the indictment against Drita Arabaxhi.
4 funds. On August 21, 1995, plaintiff learned that his wife's
criminal case would indeed be dismissed, but that his wife's
attorney would not assist him in recovering the seized funds, due
to a potential conflict of interest. On August 22, 1995,
allegedly following additional advice from his wife's counsel,
plaintiff visited the United States Attorney's Office in Concord,
New Hampshire, and asked for assistance in recovering the seized
currency. He claims that someone in the U.S. Attorney's office
told him that the currency was in the custody of the Manchester
Police Department, which also participated in Operation
Streetsweeper (though by that time plaintiff of course had
received rather clear written notice that DEA had the funds and
was in the process of administratively forfeiting them). On
August 23, 1995 (after the time for judicially contesting the
forfeiture had expired) plaintiff visited the police department,
only to be referred to the offices of the DEA in Boston.
Plaintiff says he also visited the Boston DEA office, but was
referred back to the Manchester Police Department.
Plaintiff further alleges that he then obtained the
assistance of an interpreter, who drafted a hand-written letter
for him in English, reguesting an extension of time to claim the
seized currency. A separate note was included which read,
"Please help this man put this letter in the proper hands. Thank
you." On August 25, 1995, plaintiff presented the letter and
note to the DEA office in Concord, New Hampshire, together with
the Notice, and indicated that he needed help. The DEA allegedly
5 demanded $3,000, apparently as a cost bond, which the plaintiff
was unable to pay due to indigence. Plaintiff says the DEA did
not mention, or assist him in executing, an affidavit of
indigency in lieu of posting a cost bond (of course, the time for
invoking iudicial review had already expired on August 22) .
Instead, the DEA allegedly referred plaintiff to the Concord
office of the United States Attorney. There, plaintiff spoke
with a person allegedly fluent in Greek, a language in which
plaintiff had some facility. Plaintiff says that he clearly
stated his claim, but the Greek-speaking person merely accused
his wife of being a drug dealer and turned him away.
Plaintiff subseguently retained his current counsel, Gordon
Blakeney, Esg. Attorney Blakeney asserts that several months
later, on January 24, 1996, he called a DEA staff attorney who
ostensibly granted an extension of time in which to file a
petition for remission, after hearing Mr. Blakeney's rendition of
the mitigating circumstances. The DEA attorney to whom he spoke.
Senior Attorney Vicki Rashid (formerly Vicki Curcio), confirms
that she spoke to Attorney Blakeney on January 24, 1996, and that
she agreed to a thirty day extension from that date to file a
petition for remission. However, she states that by so doing she
intended simply to extend running time limits, but did not
purport to reopen any limitations periods which had already
expired, and indeed had no such statutory or regulatory
authority.
6 Nevertheless, plaintiff did file an administrative petition
with DEA within thirty days of the apparent extension,3 asserting
his ownership of the currency and seeking remission of the
forfeiture. Notwithstanding her apparent previous authorization,
however. Attorney Rashid determined that the petition had been
erroneously accepted and denied it as untimely. From Attorney
Rashid's affidavit, it appears that since the deadline for filing
had passed well before plaintiff's counsel ever sought an
extension, and the seized currency had already been declared
forfeited back on September 27, 1995, she believed she was
without authority to grant Arabaxhi an extension of time to file
an administrative petition for remission. (It appears that Mr.
Blakeney's January phone call also occurred outside the ninety
day time limit established for filing a petition for the
restoration of proceeds, an avenue of relief available after
forfeiture has occurred. See 21 C.F.R. § 1316.80.)
On May 13, 1996, the DEA received a motion for
reconsideration from Attorney Blakeney. The DEA responded on
August 20, 1996, again asserting the untimeliness of plaintiff's
administrative petition. However, the DEA further advised
plaintiff that even if the DEA had accepted and ruled on his
untimely petition for remission, the petition would have been
denied on the merits. The letter explained that an undercover
3 Attorney Blakeney's affidavit (document no. 8) makes it plain that whatever the scope of the extension of time at issue, it related only to filing an administrative petition for remission (see e.g. 5 5 : " . . . it is [for a] remission of forfeiture, like a pardon, basically.").
7 police officer purchased cocaine from Mrs. Arabaxhi on five
separate occasions, and each time she retrieved the narcotics
from the bedroom. Noting that all of the seized currency was
removed from various places in that very bedroom, the letter
concluded that there was "a substantial relationship . . .
between the seized currency and controlled substances,
[indicating] probable cause to believe the currency was furnished
or intended to be furnished in exchange for a controlled
substance in violation of 21 U.S.C. § 881(a)(6)." The DEA also
explained, plausibly, why plaintiff's contrary assertions
regarding the source of the funds lacked credibility.
Discussion
When reviewing a motion to dismiss for lack of subject
matter jurisdiction. Rule 12(b)(1), Fed. R. Civ. P., the court
construes the complaint liberally, treating all well-pleaded
facts as true and giving the plaintiff the benefit of all
reasonable inferences. See Murphy v. United States, 45 F.3d 520,
522 (1st Cir. 1995). Nevertheless, the party invoking the
court's subject matter jurisdiction carries the burden of proving
its existence. Id.
Before considering plaintiff's position, it is necessary to
carefully differentiate between administrative and judicial
forfeitures. Civil forfeiture of property or money furnished in
exchange for or used in connection with illegal activity related
to controlled substances is governed by 21 U.S.C. § 881, a section of the Comprehensive Drug Abuse Prevention and Control
Act (the "Drug Control Act"). Section 881 directs that such
forfeiture procedures conform to the customs laws, 19 U.S.C. §
1600, et sea.
1. Judicial Relief
The customs laws provide that "property worth $500,000 or
less is subject to administrative forfeiture without judicial
involvement." United States v. Giraldo, 45 F.3d 509, 510 (1st
Cir. 1995)(citing 19 U.S.C. § 1607). An aggrieved individual is,
however, afforded a narrow window of time — within twenty days of
the date the government first publishes notice of the intended
forfeiture — in which to seek judicial relief by filing a claim
with the agency (here, the DEA) and a cost bond of not less than
$250 or, in lieu of a cost bond, a declaration of indigence. See
19 U.S.C. § 1608. "The filing of the claim and the bond stops
the administrative process and reguires the seizing agency to
hand the matter over to the United States Attorney for the
commencement of a judicial forfeiture proceeding." Giraldo, at
510-511 (citing 19 U.S.C. § 1608). In a judicial proceeding, the
agency is reguired to go forward and show probable cause for the
forfeiture. If successful in that effort, the burden of proof
then shifts to the claimant to show that the seized property
belongs to him or her and is not drug related. Boero v. Drug
Enforcement Administration, 111 F.3d 301, 304 (2d Cir. 1997). 2. Administrative Relief
If a claimant fails, or chooses not to follow the procedure
that would entitle him or her to judicial review, the seizing
agency "shall declare the [property] forfeited." 19 U.S.C.
§ 1609(a). See also 21 C.F.R. § 1316.77(a). That declaration
has the same force and effect as a final decree of forfeiture in
a judicial proceeding in a federal district court, and title to
the seized property is then deemed vested in the United States.
19 U.S.C. § 1609(b). Here, the property (cash) was declared
forfeited on September 27, 1995.
A claimant may administratively oppose the forfeiture,
however, by filing a petition for remission or mitigation with
the seizing agency, also known as a petition for "pardon" or
"grace." This procedure is "an administrative prelude to the
formal forfeiture proceeding, wherein a valid forfeiture is
presumed." United States v. Morgan, 84 F.3d 765, 767 n.3 (5th
Cir. 1996); 28 C.F.R. § 9.5. "Unlike the claimant who files a
claim [seeking judicial relief] and posts a cost bond, a
petitioner seeking remission or mitigation of a forfeiture does
not contest the legitimacy of the forfeiture. Rather, a petition
for remission or mitigation is a means of ameliorating the
harshness of forfeiture when mitigating circumstances exist."
Morgan, 84 F.3d at 767 n.3 (emphasis added).
A petition for remission must be received within thirty days
of receipt of the notice of seizure. 21 C.F.R. § 1316.80(a). If
a petition is not received within thirty days, the property is
10 either placed in official service or sold as soon as it is
forfeited. 21 C.F.R. § 1316.80(a).4 If a petition is received,
the DEA asset forfeiture department normally requests an
investigation and then forwards the petition, along with a report
of investigation, to the Administrator of the DEA. 21 C.F.R. §
1316.81. Following an administrative forfeiture, an aggrieved
claimant may file a petition for review of the final agency
decision with the Court of Appeals in the relevant jurisdiction,
21 U.S.C. § 877, but that review is generally limited to whether
the agency followed the proper procedural safeguards before
declaring the property forfeit. Scarabin v. Drug Enforcement
Administration, 919 F.2d 337, 338 (5th Cir. 1990) .
3. The Court's Subject Matter Jurisdiction Over Plaintiff's Claim
Arabaxhi simply did not comply with any of the procedural
requirements that would have entitled him to iudicial review of
the merits of the DEA's forfeiture decision. He did not file a
claim and post a cost bond (or assert indigency) with the DEA
within the allotted 20-day period, and he received
constitutionally adequate notice of the requirement.
His counsel contends, however, that this court nevertheless
has subject matter jurisdiction over his claims, either under the
4 Within 90 days of the date on which the property is placed into official use, a claimant may still file a petition for restoration of the value of the property. 21 C.F.R. § 1316.80 (b) .
11 Administrative Procedures Act or pursuant to the court's
"inherent equitable powers."
A. The APA
Contrary to plaintiff's assertions, it is unmistakably clear
that the APA does not confer subject matter jurisdiction on this
court under these circumstances. The plaintiff has sued an
agency of the United States government, but he neither asserts
nor identifies any explicit waiver of sovereign immunity. The
APA itself provides no waiver of sovereign immunity when a
controlling statute precludes judicial review of the matter at
hand. 5 U.S.C. § 701. And, the Court of Appeals for the First
Circuit has determined that the forfeiture section of the Drug
Control Act and its implementing regulations, described above,
constitute "a statute precluding review" of forfeiture actions
within the meaning of that subsection. Sarit v. United States
Drug Enforcement Administration, 987 F.2d 10, 17 (1st Cir. 1993) .
The only exception noted in Sarit suggests that a federal
court may exercise preliminary jurisdiction to determine whether
the notice of forfeiture received by a petitioner was adequate in
light of due process requirements. Id. But once a district
court finds the notice to be constitutionally sufficient,
§ 701(a)(1) applies to deprive the court of subject matter
jurisdiction over the remainder of the case. Id.
Plaintiff concedes, as he must, that the notice he actually
received from the DEA met all statutory and regulatory
12 requirements and plainly informed him of the relevant deadlines
and where to send his claim. The notice he received also
satisfied due process concerns, even given his difficulties with
the English language. See Toure v. United States, 24 F.3d 444
(2d Cir. 1994) . A straightforward application of Sarit, then,
requires this court to acknowledge its lack of subject matter
jurisdiction.
In an effort to bypass Sarit, however, plaintiff's counsel
argues that this court is surely authorized by the APA to at
least review the DEA's denial of plaintiff's administrative
petition for remission of forfeiture.5 Plaintiff's petition for
remission was unquestionably filed with the DEA late, but perhaps
arguably as allowed by agency sufferance, within its discretion.6
Putting that timeliness issue aside for the moment, however, it
is still plain that remission of forfeiture is a matter committed
to the sound discretion of the seizing agency. See Averhart v.
5 Plaintiff's counsel seems to argue that because DEA Senior Attorney Vicki Rashid, acting pursuant to inherent administrative authority, granted an extension of time, all deadlines set out in the notice of forfeiture received by plaintiff were effectively nullified (presumably nunc pro tunc).
6 Though perhaps a more compelling argument, plaintiff does not seem to assert that the DEA should have treated his appearance at DEA offices, and his presentation of the letter requesting help, as the equivalent of filing a formal petition for remission See e.g. United States v. One 1987 Jeep Wrangler Auto, 972 F.2d 472, 481 (2d Cir. 1992). Plaintiff received the DEA's Notice on July 28 and, accepting his allegations, within thirty days (August 25) he personally appeared at DEA offices and made his claim to the currency known. Nevertheless, even if plaintiff had advanced (and prevailed on) that argument, he would be entitled to no more than that which he has already received: administrative consideration of his petition on the merits.
13 United States, 901 F.2d 1540, 1543 (11th Cir. 1990).
Accordingly, except under carefully defined and very narrow
circumstances, federal courts lack jurisdiction to review the
merits of an administrative forfeiture decision, even one that
constitutes an abuse of discretion. See Averhart, 901 F.2d at
1543-44 .
A federal court might exercise preliminary jurisdiction to
review the procedural aspects of a denial of a petition for
remission. For example, other circuits have determined that a
federal court may exercise jurisdiction to review the procedural
safeguards afforded by a seizing agency, particularly when the
agency "does not even consider a reguest that it exercise its
discretion." Averhart v. United States, 901 F.2d 1540, 1544
(11th Cir. 1990); c f . Scarabin v. Drug Enforcement
Administration, 919 F.2d 337, 338 (5th Cir. 1990) (federal court
may review agency's refusal to exercise jurisdiction over a claim
as well as the nature of any procedural safeguards, but is
precluded from reviewing the merits). On the other hand, when
the government provides a detailed explanation for its denial of
a petition for remission, including an account of the relevant
evidence supporting a probable cause finding (as it did here) it
has conclusively established that it did consider the reguest.
See Averhart, 901 F.3d at 1544; One 1977 Volvo 242 DL v. United
States of America, 650 F.2d 660, 662 (5th Cir. 1981)(noting that
where DEA had provided plaintiff with reasons for the denial of
her petition for remission, federal court was without
14 jurisdiction). C f . Scarabin, 919 F.2d at 339 (remanding case to
DEA because, despite opportunity, it failed to review merits of
petitioner's claim). But those potential exceptions do not apply
here.
Although the DEA formally denied plaintiff's petition on
timeliness grounds (and so arguably refused to exercise its
discretion) , for all practical purposes the agency did consider
the petition on the merits, and fully and plausibly explained in
detail why the petition would have been denied even if it had
been accepted as timely. In very real terms then, plaintiff has
been afforded full administrative review on the merits, and has
obtained a detailed explanation as to why his petition, even if
timely, would be denied. The court does not have jurisdiction to
consider the merits of the DEA's administrative decision to
forfeit the currency at issue, and there can be little doubt what
that decision on the merits is (or would be).
B. Equitable Jurisdiction
Undaunted, plaintiff asserts that this court should still
exercise subject matter jurisdiction and grant substantive
relief, based upon its "inherent equitable power" to correct
erroneous administrative actions. To be sure, a federal court
may invoke equitable jurisdiction in "exceptional cases where
equity demands intervention." Averhart, 901 F.2d at 1544.
However, the court's equitable powers must be exercised with
caution and restraint, and usually should not be employed when a
15 petitioner has an adequate remedy at law. Id., at 1545. Cf.
United States v. Claqett, 3 F.3d 1355, 1356 n.l (9th Cir.
1993)(observing that a remedy at law does not become inadequate
merely because a claimant failed to invoke it). Plaintiff in
this case had, but failed to properly invoke, an available
iudicial remedy despite having received full and adequate notice
of both the available remedy and how to invoke it. Given that
failure, it would be particularly inappropriate for the court to
exercise equitable jurisdiction over the DEA's administrative
decisions in this case for that reason alone.
In any event, plaintiff's case does not present the kind of
exceptional circumstances warranting equitable intervention. In
light of the asserted facts, and Attorney Rashid's earlier
"authorization," the DEA probably could have entertained
plaintiff's untimely administrative petition on the merits,
perhaps finding that although plaintiff's attempt in August of
1995 to invoke administrative remedies was technically deficient,
he demonstrated sufficient interest in the property and in
asserting his rights that the DEA field offices should have been
more helpful and cooperative, and should have accepted and
considered the petition. (Again, the court is accepting
plaintiff's factual allegations as true.) But, the reality here
is that although plaintiff's petition was formally denied as
untimely, upon reconsideration the DEA did fully review its
substance and concluded that it was without merit.
16 The DEA advised plaintiff, in writing, that even if the
petition had been timely filed and accepted for consideration, it
still would have been denied on the merits, and the DEA explained
why. The explanation was both rational and reasonable, but this
court does not review the merits of administrative decisions to
deny petitions for remission, and, obviously, remanding the
matter to the DEA to reguire more "formal" consideration of the
petition on its merits would be pointless, given that the DEA has
already effectively and, for all practical purposes, made a
determination upon the merits and has provided plaintiff with a
sufficiently detailed explanation of that decision. This is not
a case in which an agency of the government is depriving the
rightful owner of property that should not have been forfeited in
the first place based on a technical "gotcha," and without any
meaningful consideration of the merits of the owner's claim or
the eguities of the situation. See Scarabin, 919 F.2d at 339.
Conclusion
Judicial review of plaintiff's objection to forfeiture is
not available, because the court is without subject matter
jurisdiction. The court is also without jurisdiction under the
APA to entertain his claims, and declines to exercise "eguitable
jurisdiction" under the circumstances of this case. Furthermore,
remand for formal administrative review by the DEA is denied as
pointless since, even assuming DEA's procedural error in deeming
plaintiff's administrative petition untimely, the DEA's de facto
17 consideration of the petition on the merits, and its reasonable
and thorough explanations for the discretionary decision to deny
relief, effectively provided plaintiff full consideration on the
merits.
For the foregoing reasons, the court grants defendant's
motion to dismiss (document no. 4) and denies as moot plaintiff's
motion for partial summary judgment (document no. 5). The clerk
of court shall close this case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 16, 1998
cc: Gordon R. Blakeney, Jr., Esg. Jean B. Weld, Esg.