Averhart v. United States

901 F.2d 1540, 1990 U.S. App. LEXIS 8306, 1990 WL 57872
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 23, 1990
DocketNo. 89-7682
StatusPublished
Cited by9 cases

This text of 901 F.2d 1540 (Averhart v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Averhart v. United States, 901 F.2d 1540, 1990 U.S. App. LEXIS 8306, 1990 WL 57872 (11th Cir. 1990).

Opinion

KRAVITCH, Circuit Judge:

Petitioners Tommy Lee Averhart and Jimmy Averhart appeal the district court’s dismissal with prejudice of their action to recover $67,470 in currency that was seized by the Drug Enforcement Administration (DEA) based upon probable cause to believe that the funds had been used in an unlawful narcotics transaction.1 The petitioners asserted that the seizure was un[1543]*1543justified and that the delay of the government in responding to their request for remission violated their due process rights under the fifth amendment. The district court dismissed the petition, finding that it lacked jurisdiction to review the decision of the DEA and that the petitioners had no protectable interest in the timely disposition of their request for mitigation. We affirm.

FACTS & PROCEDURAL BACKGROUND

On March 26, 1988, the Alabama Bureau of Investigation seized $67,470 from a vehicle driven by petitioners based on evidence that the currency had been used in a narcotics transaction. Subsequently, on June 30, 1988, the DEA notified petitioners that the $67,470 was being seized for forfeiture. The petitioners filed a request with the DEA for remission of the currency on August 8, 1988. The DEA notified the petitioners on August 17, 1988, that “before any decision can be made, the necessary investigation and review of your petition may take up to 120 days from the date of this letter.”

After waiting 166 days for the DEA to assess their petition, the Averharts filed the present action in district court seeking the return of the seized currency. The district court stayed the petitioners’ claim pending a determination by the DEA of the request for remission and mitigation. On March 8, 1989, the DEA denied the petition and, later, the petitioners’ request for reconsideration. The government subsequently filed a motion to dismiss the petitioners’ cause of action which was granted by the district court.

JURISDICTION TO REVIEW AGENCY FORFEITURE DECISIONS

Petitioners contend that the district court erred in refusing to review the DEA’s decision to deny the request for remission. We disagree. The remission of forfeitures is neither a right nor a privilege, but an act of grace. United States v. One 1961 Cadillac, 337 F.2d 730, 733 (6th Cir.1964); Area Airlines v. United States Customs Service, 726 F.Supp. 827, 830 (S.D.Fla.1989); LaChance v. Drug Enforcement Administration, 672 F.Supp. 76, 79 (E.D.N.Y.1987). The purpose of the remission statutes2 is to grant the executive the power to ameliorate the potential harshness of forfeitures. United States v. One 1976 Porsche 911S, 670 F.2d 810, 813 (9th Cir.1979); One 1961 Cadillac, 337 F.2d at 733; Area Airlines, 726 F.Supp. at 830; LaChance, 672 F.Supp. at 79. Under the statute, a decision with respect to the mitigation or remission of a forfeiture is committed to the discretion of the Secretary. 19 U.S.C. § 1608; see One 1961 Cadillac, 337 F.2d at 733; Area Airlines, 726 F.Supp. at 830.

In recognition of these considerations, federal common law consistently has held that federal courts lack jurisdiction to review the merits of a forfeiture decision that the Secretary has reached in the exercise of his discretion. One 1977 Volvo 242 DL v. United States, 650 F.2d 660, 662 (5th Cir. Unit B 1981)3; United States v. One 1970 Buick Riviera Bearing Serial No. 494870H910774, 463 F.2d 1168, 1170 (5th Cir.1971), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972); Area Airlines, 726 F.Supp. at 830; United States v. One 1979 Oldsmobile-Cutlass Supreme, 589 F.Supp. 477, 479 (N.D.Ga.1984); see One 1976 Porsche 911S, 670 F.2d at 813; United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir.1977); United States v. One Clipper Bow Ketch NISKU, 548 F.2d 8, 12 (1st Cir.1977); [1544]*1544One 1961 Cadillac, 337 F.2d at 733. Moreover, federal courts are generally prohibited from reviewing agency forfeiture decisions even where it is alleged that the Secretary abused his discretion. One 1961 Cadillac, 337 F.2d at 733; Area Airlines, 726 F.Supp. at 830.

Only under certain narrow circumstances will a federal court have jurisdiction over an agency’s forfeiture decision. First, a federal court may have jurisdiction when the agency does not even consider a request that it exercise its discretion. One 1977 Volvo 242 DL, 650 F.2d at 662; One 1970 Buick Riviera, 463 F.2d at 1170 & n. 3; Area Airlines, 726 F.Supp. at 830; La-Chance, 672 F.Supp. at 79-80. In order to invoke this exception, a petitioner must either make specific allegations showing a refusal to consider or the government must concede that the application was not properly considered. One 1977 Volvo 242 DL, 650 F.2d at 662. Here, the government made no such concession, and the agency provided a detailed explanation for its denial of remission, dispositively establishing that it considered the request. Cf. United States v. Edwards, 368 F.2d 722, 724 (4th Cir.1966); Cotonificio Bustese, S.A. v. Morgenthau, 121 F.2d 884 (D.C.Cir.1941); Clow v. Nelson, 579 F.Supp. 981, 983-84 (W.D.N.Y.1984).

Additionally, federal courts under limited circumstances may exercise equitable or anomalous jurisdiction over agency forfeiture decisions.4 United States v. Chapman, 559 F.2d 402, 406 (5th Cir.1977); Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir.1977); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir.1975); Hunsucker v. Phinney, 497 F.2d 29, 32-34 (5th Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); In re One 1983 Mercedes Benz Automobile VIN No. WDBCB20A9DB041960, Misc. No. 1664, slip op. at 3-4; In re $49,065.00 in United States Currency, 694 F.Supp. at 1559-60; Ricon, 691 F.Supp. at 1413-14; In re $15,875.00 in United States Currency, Civ. No. C87-922 (N.D.Ga. Nov. 9, 1987) (WESTLAW, 1987 WL 48216). The authority of federal courts to order the return of unlawfully seized property is derived from their well established supervisory authority over officers of the court.

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No. 89-7682 Non-Argument Calendar
901 F.2d 1540 (Eleventh Circuit, 1990)

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Bluebook (online)
901 F.2d 1540, 1990 U.S. App. LEXIS 8306, 1990 WL 57872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/averhart-v-united-states-ca11-1990.