John E. Wiren v. Donald Eide, as District Director of the Bureau of Customs

CHAMBERS, Before KOELSCH and KILKENNY, Circuit Judges. KOELSCH, Judge: Circuit On his return from Canada in February, 1972, appellant Wiren and passen- the three gers in his 1970 Volkswagen were stopped Blaine, and searched at Washington, border station. When body search of one passengers revealed a quantity small hashish, agents customs seized Wiren’s car as a vehicle used to transport contra- band into the United States.1 Immediately thereafter, claiming he had no Wiren — knowledge presence of the peti- hashish — the Secretary tioned of the Treasury under 19 U.S.C. 1618 for a § remission mitiga- or impending tion of the forfeiture of his car.2 claim, 1595a(a). giving 1. See such and the of a bond to the 19 U.S.C. also 18 U.S.C. § penal $250, 545 and 21 U.S.C. 881 and 952. §§ United States in the sum of approved by to be sureties such customs offi- statutory 2. The “heart” of the federal cer, conditioned that in case of condemnation scheme, purposes appeal, at least for of this obligor articles of the so claimed the shall following provisions consists of the of Title 19: pay ceedings expenses pro- all the costs and of the [Seizure]; appraisement condemnation, Same 1606. “§ “The obtain such such appropriate customs officer shall de- officer customs shall transmit such claim and value, bond, duplicate description termine the domestic place merchandise, at the time and with a list and vessel, any vehicle, seized, appraisement, of the articles ney made, to the United States attor- baggage or seized under the for the district in which seizure was proceed laws. customs who shall to a condemnation Same; $2,500 property value 1607. or less “§ of the merchandise or other vessel, vehicle, prescribed by value of such “If such mer- manner law. chandise, $2,500, baggage Same; summary or does not exceed of forfeiture and “§ appropriate customs officer shall cause a sale given notice of the seizure of such articles and the “If no such claim is filed or bond twenty days speci- intention to forfeit and sell or otherwise dis- within fied, hereinbefore pose according appropriate of the same to law to be customs officer shall published vessel, vehicle, merchandise, for at least three successive weeks declare the or Secretary forfeited, baggage public such manner as of the Trea- and shall sell the same at sury may purposes of this section and sections 1610 and 1612 of this direct. For the auction in the same manner as mer- chandise abandoned to the United States is importation sold, dispose title merchandise the prohibited of which is or otherwise of the same ac- $2,500 cording deposit shall be held not proceeds to exceed to law and shall sale, deducting expenses value. after the actual Same; claims; judicial seizure, publication, “§ 1608. condem- of sury and sale in the Trea- nation of the United States. vessel, vehicle, “Any person claiming Same; $2,500 such “§ value more than merchandise, baggage may any any vessel, vehicle, or time the value of “If mer- days chandise, twenty baggage greater from the date within of the first so seized is publication $2,500, appropriate of the notice of seizure file with than shall customs officer case, appropriate report the ing customs officer a claim stat- transmit a with the Upon witnesses, filing his interest therein. names of available to the United procedural denied, did exist that Wiren’s claims was a subse- was as petition That to hearing him a on the merits of his the Bureau of Customs. entitle appeal quent claim. We therefore remand substantive November, making an after disposition the matter for a clear inquiry, received Wiren telephone informal of the substantive merits claim. informing him mail a unregistered letter government’s intention to forfeit subject The district mat court had appraised, pursuant had vehicle which of this action. Insofar ter 1606, at less He than $2500. 19 U.S.C. § money damages claim is one for Wiren’s in accordance with filed a claim then amount, $10,000 exceeding but did of 19 U.S.C. provisions empowered to reach the merits of because, as he requisite post $250 Act, claim Tucker 28 U.S.C. indigent at the time. alleges, he was now 1346(a)(2). v. United Simons However, being statutory proce there 1974); Wells F.2d indigent condi for to call this dure Wiren 275, States, (9th 280 F.2d Cir. v. United 277 of of Cus attention the Bureau tion 1960); Carriso, States, Inc. v. United 106 to halt the procedure for him toms and no 707, (9th 1939). also F.2d 712 Cir. See by 19 summary mandated U.S.C. forfeiture Richardson, 968, v. 498 970 Bramble F.2d a 1609, along this Wiren filed action § denied, 1069, (10th 1974), cert. Cir. pauperis in and an proceed motion forma States, (1974); 656 Pasha v. United sought He a determi poverty. affidavit of 630, (7th 1973); F.2d Cir. 484 632-633 Unit notice, constitutionality of of nation Impala 1965 One Chevrolet ed States bond, burden-of-proof provisions con and Convertible, 882, (6th 475 F.2d 884-885 Cir. statutory forfeiture in the federal tained 1973); Narcotics, Menkarell v. Bureau of scheme, his claim hearing a on merits of (3d 1972); F.2d 90 Cir. 463 impending and forfeiture seizure Impala Red v. One 1961 Chevrolet States unconstitutional, the re his car are and of Sedan, (5th 457 Cir. F.2d 1356-1357 together damages.3 turn of his car States, 1972); F.Supp. Jaekel v. United 304 stay proceed Appellees agreed (S.D.N.Y.1969); 996-998 cases and ings pending disposition of this action. cited. therein granted mo- appellees’ The district court dismiss, although Similarly, 10 of Administra is uncertain § tion (APA), whether Procedure Act 5 701- that order the dismissal tive §§ from U.S.C. jurisdictional grounds subject or on also jurisdic on conferred matter predicated jurisdiction Despite clear on the in split We are tion district court. a the merits. attorney similarity by striking for the in which the States a to that described bears Kennedy for the institution of the was made seizure in v. Mendoza- proper proceedings Martinez, 144, 152-155, for the condemnation property.” request such despite in L.Ed.2d 644 a which — injunction in the third for amended com- Though complaint amended contains Wiren’s plaint indicated issues record “that —the relief, apparent request injunctive this for an contemplate any framed so as not were empanelment in which the action not one injunctive relief.” 372 U.S. at 83 S.Ct. at required three-judge court is under 28 U.S.C. a Mendoza-Martinez, request Under a mere injunctive Wiren seeks no relief 2282. That § relief, declaratory coupled re- with a for three-judge necessitate court such as would a relief, injunctive disposed quest be by plain nature of is made his statement of the court; by single-judge grant- if merits (R. 7), by complaints his the case in each of ed, declaratory relief such affects the relevant request three-judge plainly court his failure all, Congress, totally if at “in a noncoer- Act of required by rule States local of the United does not constitute an “inter- cive fashion” and District the Western District large operation at of the statute.” Washington, diction by at his clear written concession 560; New U.S. at see also separate junctures that he two the record Mitchell, Mart, (R. 32-33, 57), Inc. v. injunctive Orleans Book relief seeks affirmed, F.Supp. (M.D.Fla.1970), (Pet. for Reh. his admission brief similar connection, (1971). record before us In this see, “Nonstatutory 1962 and Judicial Review of g., e. Sand- question, circuits Action, Administrative Weinberger, 522 F.2d Federal 1169-1170 81 Harv.L. ers Davis, repeatedly Admin- 1975), 326-331 K. Rev. (7th Cir. the APA (Supp.1970). 10 of Law position istrative Treaties 23.02 taken subject independent grant mitigation of lawful the remission or While embodies action, agency to review and forfeitures is a matter commit- seizures matter see controversy, discretion, the amount agency irrespective ted to 1618,4 action is committed questioned the determination unless §§ agency to the discretion and forfeitures propriety law of the seizures Simons, convincing evidence supra, is clear See there is not. themselves ex- preclude review intent congressional apparent at 1049. We think it F.2d legis- or its governing statute pressed subject additionally matter Levi, Proietti v. See history. lative 10 of the APA.5 furnished Rothman 1976); (9th Cir. F.2d California, Turning procedural now to Wiren’s of Southern Hospital Service contentions, we note that his claim of en Brandt 1975); (9th 958-959 Cir. F.2d pre-seizure opportu notice and titlement Hickel, (9th n.2 F.2d Cir. Udall, hearing against was resolved him nity for a Washington v. State 1970); Leasing v. Pearson Yacht in Calero-Toledo Cole- 1969); (9th 1310, 1319-1320 Cir. Co., 40 L.Ed.2d v. United man There Court held grounds, 1966), reversed on pre-seizure oppor notice and the (1968); absence 1327, 170 599, 20 L.Ed.2d 88 S.Ct. tunity hearing for a in the context of for Witmer, (9th v. 271 F.2d 29 Cir. Adams Morton, proceedings is not a denial feiture of due v. 519 also Strickland 1959). See property seizure of pur Ness Invest- 1975); process; 467, (9th 468 Cir. F.2d poses “extraordinary of forfeiture is an sit Department Agricul- Corp. v. U. S. ment Service, 706, (9th justifying postponement of notice ture, 715 uation” Forest 512 Fiocca, hearing requirements. Section 416 1975); Byse and J. U.S. C. Cir. 676-680, Mandamus and Venue Act 94 2080.6 S.Ct. 1861 insubstantial; S. & presented States v. U. Coin Curren But see United not for if we 4. be were 1041, 1045, 715, 721, cy, 28 91 S.Ct. 401 U.S. to determine the existence of the bound first (1971), said of 434 in which Court duty, disposing be of the case on its we would remission/mitigation function: wholly inappropriate in merits —an exercise de- Secretary presumed that the “It is not to be ciding question jurisdiction. threshold trust, conscientiously fulfill this will not parenthetically note that the We issuance of the inno- have intervened when the courts extraordinary mandamus is an reme- a writ protests gone petitioner’s have unheed- cent assumption jurisdiction dy. mandamus The ed. inappropriate adequate remedy where an foregoing provi- Assuming arguendo that the complaint or the does not available otherwise any to furnish a sufficient fail for reason sions sufficiently allege irreparable the existence of jurisdictional the district court basis for injury. claims, suppos- of Wiren’s merits reach the jurisdictional the federal hand, void is filled ed once seizure is accom- 6. On the other That 28 U.S.C. mandamus justifications postponement plished, provides a con- to enforce section evaporate, see enumerated Calero-Toledo though perhaps duty stitutional which— 679-680, 2080, 94 and due 416 U.S. at S.Ct. beyond all doubt at outset clear litigation opportunity process requires that notice plain by the court’s sub- rendered —is swiftly, hearing be accorded form of for some sequent on the merits. Knuckles decision See, event, g., and, any prior e. to forfeiture. 1221, (9th Weinberger, 1222 Cir. 511 F.2d 67, 88-93, Shevin, 92 407 U.S. S.Ct. Fuentes v. Mitchell, 1201, 1975); 502 F.2d Workman Burson, 1983, (1972); 556 Bell v. 32 L.Ed.2d 1974). See also 1205-1206 Cir. 539, 1586, 535, 29 L.Ed.2d 90 91 S.Ct. n.5, Testan, 401 403- States v. Goldberg Kelly, (1971); 267- 955-956, 948, 954, n.5, 47 L.Ed.2d (1970); 25 L.Ed.2d 287 Snia- likens to this which the dissenter Family Corp., 395 U.S. Finance dach v. required to invoke case. All that (1969). 23 L.Ed.2d 349 constitutional claim S.Ct. is that under satisfy provision to the “case or controver contends nevertheless Wiren requirement Article III of the Consti sy” provision contained in notice post-seizure expressed concern tution. solely for notice providing U.S.C. § 1607— requirement standards of that be lest the be- process due publication —violates blurred, Baird, 405 come see Eisenstadt v. of notice not a method prescribes cause n.4, 31 L.Ed.2d S.Ct. U.S. calculated, the cir- “reasonably under all (1972), and here we think that Wiren’s cumstances, parties of apprise interested injury-in-fact allegations are insufficient afford them action and pendency Schlesinger it. generally to sustain See present objections.” their opportunity Stop War, Reservists U.S. Co., Trust Hanover v. Central Mullane 216-227, 41 L.Ed.2d 706 652, 657, 306, 314, 70 94 L.Ed. 865 U.S. (1975). Moreover, even “case or if a sufficient to that At sympathetic claim. We are controversy” presented were respect dealing federal two courts least statutory provision, notice think by pub- ruled notice have that the question self-imposed restraint, Court’s rules of inadequate prescribed by lication Raines, States v. see United U.S. respect per- process with afford due 21-22, registered seized owners of such sons True, controlling. be there does ex- would are identities and addresses whose vehicles authority ist a line of con- easily and whose ascertainable known language to liti- taining the effect that a directly af- protected interests are legally deprived ability of his to chal- gant is proceedings question. fected statutory simply lenge provision notice Narcotics, v. Bureau of Menkarell have received as a matter because (3d 1972); Jaekel v. United 93-95 grace, of administrative favor or extra-offi- F.Supp. (S.D.N.Y. prescribed by cial or casual notice not Hanrahan, also Robinson v. See Pizzuti, 276 statute. See Wuchter v. U.S. 34 L.Ed.2d U.S. 13, 24-25, 72 L.Ed. Calero-Toledo, supra, 416 (1972). Cf. Works, Coe v. Armour Fertilizer n.15, 94 S.Ct. 2080. at 680 424-425, S.Ct. 59 L.Ed. 1027 However, we on balance conclude (1915); of Georgia Railway Central Co. v. receipt Wiren’s notice de that actual 127, 138, Wright, 207 U.S. standing him of to raise the claim prives (1907); Security Safety L.Ed. 134 Trust and Having do reach it. re therefore and Lexington, Vault Co. notice, clearly been ceived such Wiren (1906). L.Ed. 204 But those process application due accorded in the must be read light of the cases Court’s as to The es personally. statute him Raines, pronouncements in su- subsequent his claim is therefore that sence of at More- pra, 362 U.S. procedure statutory inadequate notice is un over, standing the existence in Wuchter respect the fifth amendment with to der explained being predicated has been parties third receive no actu supposed who nonseparability application of the impending notice of the seizure and for Sedler, al there, challenged supra statute see property. govern of their The law feiture 71 Yale L.J. note while here there standing of ing litigants to assert con congressional clear intent that the chal- is parties claims third before lenged separable application. stitutional statute have 7 However, anything Equip- is but clear. the court 1652. See also National U.S.C. Rental, that Szukhent, are doubtful has a sufficient Wiren ment Ltd. challenging the statute’s interest notice Relief, Note, See, Standing gate e.g., to Assert Constitu- for Claim 83 Yale L.J. Tertii, Sedler, Standing to (1974); Assert Jus Harv.L.Rev. tional 464-473 Court, Standing Challenge Albert, Jus Tertii in the Constitutional nn.1-3 Inadequate An Surro- Administrative Action: Yale L.J. 600-612 However, indigent persons claiming an Wuchter. rec- distinguishing We

otherwise property valued at less interest in seized ruling raises a risk that the that our ognize entirely treated in an differ- are than $2500 rights parties of innocent process third due By their fashion. force of ent diluted, thereby be but our concern is may deprives inability post the bond economic diminished the observation somewhat any hearing at opportunity them of persons who had failed to receive actu- that to whom the persons Yet it these all. capable notice were nevertheless of vindi- al property proportionately deprivation of rights in Menkarell and Jaekel. cating their grievous. most standing exists problem No such m may requirement It is true that the bond respect challenge Wiren’s government’s being prevent operate requirement. Absent con- statutory bond a meritorious con pursuing from deterred deficiency application stitutional expense pro because demnation here, timely failure provision Wiren’s well exceed the value of the ceeding may receiving valid notice the bond after post government seeks to property which the would, the statu- proceedings under Colacicco v. United condemn. See scheme, oppor- as a waiver of his stand tory (2d 1944) (L. hearing, permitting appel- tunity for a thus Hand, However, J.). we cannot believe summary proceed lees to to, Congress either intended or thereby disposing of the case in its and Constitution, consistently with the make en examine the merits entirety. We therefore laws, pri of the forfeiture forcement his claim. justification mary contemporary of which is deterrence, see Calero-To punishment stated, Broadly Wiren’s contention n.19, 686, ledo, at 681-682 supra, requirement violates his $250 profitable self-supporting process equal protection8 rights to due by denying the fifth amendment operation amendment; forcefully under the fifth only conclude poor. We can rights argues application require of that process both due case—under in this operates deprive ment here of a him fifth protection analyses equal —the significant property interest without ac govern prohibits the federal amendment cording him opportunity hearing for a denying opportunity for a from ment solely indigent. agree. he is because We property has been hearing persons whose subject to forfei potentially seized and statutory The federal forfeiture scheme inability post solely of their ture because uniformly accords property owners of seized a bond. valued at opportunity more $2500 judicial hearing. for a Under 19 Connecticut, In Boddie v. 1610, property the forfeiture of so valued (1971), § 28 L.Ed.2d 113 the Court solely by permitted judicial is means of from process prohibits a state held that due Non-indigent condemnation. owners of inability pay solely because of denying, property valued at less fees, than are like- its $2500 access to filing and court opportunity judicial However, wise accorded for a in United States courts. divorce they determination if file a claim with the Kras, 409 U.S. v.

appropriate (1973), Boddie post customs officer and a the Court held $250 L.Ed.2d re- challenge filing to a fee supra inapplicable bond. See note 2. 497, 499, language Bolling Sharpe, Supreme in v. 347 U.S. 8. Wiren relies on and that, (1954)]. argues that L.Ed. 884 He decisions to the effect “while the Fifth process equal protection im- amendment’s due clause Amendment contains no fifth upon clause, obligation poses federal an it does forbid no less discrimination that ‘so unjustifiable government amendment as to be the fourteenth violative of due ” process.’ Shapiro Thompson, upon states. A recent See does 641-642, Weinberger supports that view. 89 S.Ct. 22 L.Ed.2d decision n.2, Wiesenfield, Rusk, (1969) [quoting 95 S.Ct. Schneider v. U.S. 163, 168, 12 L.Ed.2d seeking ings disposition action, a dis- of that indigent pending an also quirements in bankruptcy. procedure And Ortwein That charge inadequate. in strikes us Schwab, burdensome, complicated, and —as the case Kras, (1973), it concluded that amply demonstrates —time-con before us challenge to Boddie, a a state governed not anticipated by neither suming, the statuto indigent seeking re- by an filing fee court adequate ry to insure protection scheme nor pay- in welfare reductions agency view of indigent rights. Turning of an claimant’s hearings ments, evidentiary where question by Judge left unanswered procedure, a provided level administrative Colacicco, supra, Hand in 143 F.2d at fee, payment of a not conditioned reject proposition we that the for- could seek re- through appellants which provisions pauperis ma of 28 U.S.C. dress. 1915(a) indigent afford a an claimant from obtaining means of relief the bond gov the case before us is think We requirement. applies That Boddie, solely section and Ortwein. not Kras erned proceedings, Boyden indicated court see Court Kras Commis While the Patents, right U.S.App.D.C. had no constitutional sioner of claimant there bankruptcy, 1041, 1044 here discharge denied, a Wiren cert. right hearing a clearly a of some cf. sort, judicial hearing though per a Kras, and supra, — constitutionally re haps otherwise while here under the statute failure a hearing only contem form quired post summary bond mandates adminis —is statutory scheme. by the plated forfeiture and the forbearance of trative connection, do not consider remission or we provisions proceedings court in which the mitigation proceedings adequate an substi might be applied. tute; granting proceedings, in those Having determined that the instant a matter of administrative purely relief is application requirement operat bond agency has grace. an administrative Once unconstitutionally deprive ed Wiren of forfeiture, purposes property seized opportunity hearing, might a claimant, remedy of a absent a the sole other circumstances return the cause to mitigation, voluntary remission or purely district court directions to appel order judgment inappro a that forfeiture court judicial lees to commence condemnation requirement— statutory priate. contemplated Here, action the statute. applied here —denies that at least as it is however, procedural that circuitous route indigent claimant. More remedy to the purpose delay. serves no save additional over, possibility mere that such a claim hearing entitled to Wiren is on the merits perseverance insight and ant have claim; of his substantive since has raised action in forma to commence collateral below, court we see here, why it in the coupled pauperis, as Wiren did no*reason not now possibility agency that the should consider the more remote suspend proceed- clearly dispose it.9 may voluntarily reject generally “it would be difficult complaint constitu- 9. Wiren’s outlines the cir- . owner who claim an tional his car con- of the seizure of cumstances only proved that he was uninvolved in allegation tains Wiren himself had wrongful activity, unaware but carrying knowledge passenger his reasonably that he had done all that also contraband. While the Court held in Calero- expected prevent proscribed the be could applicability that of Toledo forfeiture for, property; his use of that circum- property innocents schemes to does stance, it would be difficult that conclude necessarily render such schemes unconstitu- legitimate purposes served and tional, heavily it relied on the fact that unduly oppressive.” was not voluntarily party “innocent” there had entrust- 689-690, (footnote at at 416 U.S. 94 S.Ct. 2094 possession property ed of the seized omitted). citations another, 688, 690, 416 U.S. at 94 see S.Ct. 2080. voluntarily Proof Wiren never surren- Moreover, pointed the Court out that possession of the seized vehicle to the dered

765 VACATED AND REMANDED.10 Since, as Judge Koelsch amply demon- CHAMBERS, Judge strates, Circuit (concurring): jurisdiction court had presumably culpable passenger, wood, 584, 772, that he had no 591, 767, 312 U.S. 61 85 S.Ct. knowledge passenger possessed by L.Ed. 1058 “the methods which contraband, ignorance and that his was reason- jurisdiction of the federal courts is to be exer- might place able under the circumstances well governed by cised” are the Federal Rules of beyond general the reach of the him rule stated Procedure, 8(a), (e)(2), (f), Civil and Rules bring excep- or him within Calero-Toledo govern pleadings, which the construction of ques- tion above noted. But we leave these clearly jurisdiction mandate the exercise of tions for the district court. damages over the claim in the instant case. passing We note in that Wiren’s constitution- dissenting appears view also to rest on burden-of-proof requirements al attack on the conclusion that several recent appears 1615 of 19 U.S.C. to have been re- Court decisions somehow altered or overruled jected in our recent decision in United States v. prior consistently applied law in the circuits. GTO, Hardtop, 2-Door One 1970 Pontiac 529 decisions, The most recent of those United 65, (9th 1976). F.2d 66 Cir. Testan, 392, 948, States 424 U.S. jurisdiction, respect to Tucker 10. With Act (1976), provides support no what- complaint conclusion is that dissenter’s “a proposition ever for the the “intermin- intermingles money judg- a claim for a [which] requests equitable gling” for relief and mon- equitable demand with the for relief ment . precludes ey damages jurisdiction. Tucker Act beyond pale is the Act.” But as was Testan, relying In the Court of Claims— Zdanok, plain in made Glidden Co. 370 U.S. jurisdictional Act as its Tucker basis—had or- 530, 557, 1459, 1476, 8 L.Ed.2d 571 dered the federal Civil Service Commission to J., (1962) (Harlan, announcing judgment reconsider classification decision on the theo- Court), upon the limitation which the dis- ry that retroactive reclassification would result upon is “a limitation sent relies the remedial plaintiffs’ money damages entitlement to powers (Emphasis sup- of a federal court.” However, backpay. in the form of the Su- plied.) Logically it would follow that the limi- reversed, preme holding (1) properly by invoked tation the district jurisdiction only Tucker Act confers where a declining jurisdiction only court’s in suits in right substantive of action otherwise exists requested equitable which the sole relief nature, (424 397-399, U.S. 392 at at S.Ct. 948 952- money damages not in suits in which 953, 954), (2) neither the Classification Act $10,000 additionally sought. are less than Pay right nor the Back Act create a substantive Hence the federal courts which have con backpay period to wrongful for the of the claimed uniformly sidered that limitation have taken (424 classification U.S. at great point care to out that the limitation di 953-957). As the Court said: jurisdiction vests a district court of Tucker Act “Where the States is United the defendant only request money damages where for has plaintiff suing money and the is not for im- States, been made. See March v. United retained, properly exacted the basis of the 267, 1306, U.S.App.D.C. 506 F.2d claim—whether it federal be the Constitu- (1974); States, n.6 Weils v. United 280 F.2d tion, regulation or a not cre- —does 275, (9th 1960); Cir. Blanc v. United money damages cause ate a of action States, (2d 1957), 244 F.2d Cir. cert. stated, unless as the Court Claims denied, L.Ed.2d 79 fairly interpreted ‘in basis itself can be (1957); Clay States, U.S.App.D.C. v. United mandating compensation the Federal denied, 210 F.2d 686 cert. ” damage for the Government sustained.’ (1954); Lynn 98 L.Ed. 1080 424 U.S. at 96 S.Ct. at 955. States, (5th United 110 F.2d Cir. Here, course, may argued it be that Wiren Jersey Light See also Central Power & Co. v. suing money improperly exacted or re- (1975); Local Union 508 F.2d 698 n.31 not, tained. But even if he is the fifth amend- Lindy Lynn, (3d 501 F.2d Cir. statutory ment and forfeiture scheme 1974); each Phinney, Hunsucker v. plainly compensation, mandate 1974), denied, at least in resti- Cir. cert. tutionary measure, wrongfully owner of Richardson States, property. seized (3d v. United 849 n.2 Thornton, 1972); Neither F.Supp. is Lee v. Bower v. (W.D.Pa.1972). (1975), supportive Thornton, merely the dissent. the Court dissenting appears The essence of the view held appeal had no to hear a direct be that Tucker Act not be exercised, from the present district court because the em- even where it is under the complaint panelment plain itself, three-judge of a terms of the Act where a had been in- request appropriate. contains an Under 28 additional for relief not a three- However, judge point- required authorized the Act. court is of as was course where an Act Congress enjoined ed out the Court in United States v. Sher- as unconstitutional.

766 I, therefore, no on express statute. view the the Tucker Act or under under either of whether that statute would question this Procedure Act to hear the Administrative independent jurisdictional base provide the an action, reach issue of whether I do not for suit. jurisdiction under the mandamus this it also had recognized However, jur- the rule as “a Tucker Mr. Justice Harlan since the Act confers no remedy, powers a case of a to award which on the remedial federal isdiction limitation jurisdictional alleged basis is the sole Tuck- to the er but went on observe: court” by three-judge serving restriction, is definition case. Act from as a “[F]ar brought solely under the Where a suit Tucker of the Court Claims a has allowed limitation greater Act, three-judge properly by district court enjoyed no freedom appeal empaneled, and hence direct lies to legality inquire of into courts to federal way Supreme implies But this in no Court. governmental action.” single-judge district court de- that a Holmes observed more than As Mr. Justice damages under the cide a claim for Tucker Act. Bird, ago Emery, years sixty v. in United States Morris, Richardson v. 409 U.S. 93 Nor is 28, 32, Realty Thayer Company, 35 237 (1973), of assistance L.Ed.2d 499, 500, (1915), L.Ed. it is an Richardson, to the Court re the dissent. jus- great premise act that the “inadmissible three-judge of a versed decision jurisdiction of the embodied in the Court tice granted plaintiffs’ request had court which strictly and read with is to be construed Claims injunctive” relief for “declarative and and had eye.” an adverse Health, Secretary ordered Education and dissenting view that APA confers no pay plaintiffs part to to the as Welfare funds jurisdiction subject on the district court matter Compare specific its decree. Morris Rich v. prior our decisions. The dis- is foreclosed ardson, (N.D.Ga.1972), F.Supp. that 19 vests § senter’s conclusion U.S.C. 1618 States, supra, Blanc v. with United F.2d at Secretary absolute, Treasury with reading The dissent’s Richardson squared unreviewable discretion cannot be by the later refuted decision in Court’s Hurtado Currency, v. U. & with States S. Coin States, v. United 93 S.Ct. 715, 721, 401 U.S. plaintiffs’ which (1971), and our decision in Simons v. United complaint “sought monetary damages under Act, 1346(a)(2) § the Tucker U.S.C. . . . Moreover, the record shows both the Sec- declaratory injunctive equivalent re- retary Treasury’s petition denial of a for 579-580, lief.” U.S. at 93 S.Ct. at 1159. and remission of the seizure and the review questioned juris- never Tucker The Court Act supplemental of Customs’ denial of a Bureau appeal went to diction and determine the merits of (see 42), appears R. the dissenter plaintiffs’ claim. requests those for were conclude that relief Similarly, King, in United States v. 395 U.S. invalid as a matter of law Wiren’s rendered previously satisfy require- the bond failure plaintiff’s essentially claim was one for a tax 1608. Were that conclusion correct § ment of (but timely failure refund and was barred his is), merely it would do not think it we file a claim for refund under requirement of 1608 § to render the bond serve 7422(a); thus the Court of Claims had no oppressive respect more harsh and even jurisdiction money to consider the claim indigent claimant. to the damages. And when court nevertheless respect Finally, dissenting view jurisdiction proceeded to exercise under rational basis for the bond re- that a Act, Declaratory Judgment 28 U.S.C. § impervious quirement it renders constitu- King Supreme Court reversed. held that attack, point that the out tional had no the Court Claims to issue recently a not-dissimilar state dou- held declaratory judgments; it created no limitation requirement equal protec- violative ble-bond on the Court of Tucker Act Claims’ arbitrarily irrationally dis- tion because money damages. claims for decide against appellants. a class of Lind- criminated Indeed, the two decisions cited recent Su Normet, sey 405 U.S. preme opinions as source of the rule It should be remembered 31 L.Ed.2d power to district court is without enter that a required post the that a claimant equitable relief under the Tuck tain claims already govern- will have delivered bond Alire, (6 Wall.) Act—United States er property to which he claims entitle- ment (1867), and United 18 L.Ed. 947 States constituting security up ment —itself Jones, 33 L.Ed. 90 post only $2500 failure to the claimant’s (1889) suits in which the relief —but —were deprive equitable $250 will nevertheless him of sought It is in nature. therefore hearing propriety of the seizure of perfectly initial understandable that in Glidden Co. Zdanok, supra, property. KILKENNY, (dissenting): Judge King, Circuit States U.S. S.Ct. (1969). There the in Court ad- ACT CLAIM

TUCKER dressing itself to the claim for relief other money damages than said: “. . . This the Tucker Act autho- It settled essentially equitable relief of judgment money damages only for rizes a [the claim] a kind that Court of Claims has held intermingles a claim for complaint if a history, up its throughout with the demand for to the time this money judgment decided, relief, beyond pale present it is of the case was it does not equitable Morris, grant.” Richardson v. power Act. U.S. Id. at have the S.Ct. 34 L.Ed.2d The rea- S.Ct. at 1502. jurisdiction son is that district expression A Supreme recent court is concurrent with that of the Court Thornton, subject Court is Lee v. and the of Claims Court of Claims has no (1975), 43 L.Ed.2d 85 U.S. equitable power grant relief. Glidden rev’g F.Supp. (D.Vt.1974), in which Zdanok, Co. v. U.S. Court, substance, Supreme in held that (1962). There, Justice Harlan proper jurisdictional the Tucker Act is not a jurisdiction to the speaking

in limited injunctive vehicle in which to travel or of Claims —concurrent with the dis- Court declaratory relief a challenge under court under the Act —made trict it clear constitutionality of provisions various very beginning, from the Court of Laws, Here, including Customs 1608.1 jurisdiction only had to award dam- Claims a money judgment, appel- addition to ages, specific relief. Id. injunctive against relief lant seeks the en- jurisdiction 1459. With reference to the of the forfeiture forcement a de- courts, quote respective from Rich- claratory judgment that he is entitled to Morris, supra. ardson Proce- proceed under Administrative plainly gives “The Tucker Act Act, directing dure and a writ of mandamus against courts over claims the officials to return automobile. money damages United States of less case, recent Supreme A more Court Unit- $10,000 than that are ‘founded . Testan, ed States U.S. S.Ct. upon the Constitution.’ But the Act has closely long authorizing only been construed There, point. argued the claimant money judgments actions for and not fundamentally the Tucker Act equitable against suits for relief the Unit- “. . . Jones, sovereign immunity respect ed States. See States waives provi- invoking 33 L.Ed. a constitutional any claim [9 90] (1889). The reason for the distinction regulation, federal statute sion or a from the fact flows Court any generally and all ac- makes available power grant equitable Claims has no redress, important forms of in- cepted and relief, Zdanok, Co. v. see Glidden money damages. It is that the cluding said 8 L.Ed.2d [82 very has confused two differ- Government jurisdic- . . . and the issues, 671] namely, whether there has been ent district courts under the Act tion of the whether sovereignty and a sub- a waiver of expressly made ‘concurrent with the created, and it is right has been stantive ” Claims.’ Id. 409 U.S. at 465- has been a viola- that where there claimed 466, 93 at 630. right, the Tucker Act of a substantive tion sovereign immunity as to all meas- waives Supreme speaking Another Court case necessary that violation.” to redress ures the limited of the Court of Claims, page [Emphasis [Page where the demand for relief was 954]. money damages, supplied]. is United Although decision that 1608 was also the district court 19 U.S.C. 1608 is not mentioned opinion, attack. it is clear from under constitutional States, 422 F.2d 326 Supreme Zimmerman v. United answering argument, 1970), 911, was 90 (C.A.3, the Act cert. denied 399 U.S. that Tucker stressed 2200, and that the asserted 26 L.Ed.2d 565.2 jurisdictional merely S.Ct. money damages depended to entitlement enough, the has not True any federal statute “. whether upon the definitively subject. on In one spoken mandating interpreted as fairly ‘can be Cort, instance, Rusk v. 369 82 the compensation by Federal Government speaking in ” [Page damage sustained.’ the for jurisdiction”. Id. at “general grants of of The Court went on page 955.] seem that would ready tamper are comment: “We something speaking Brennan was of Justice principles because it these established pure jurisdiction when he men- re- thought they that should be might be Act, Declaratory Judgments the in tioned en- conception of sponsive particular to a as the Pro- same breath Administrative the policy. lightened governmental Act. well It settled that the cedure States, the there against suit In a not, Declaratory Judgments Act does in it- right money damages be with- cannot a jurisdiction. self, Skelly confer Oil Co. v. sovereign immunity, and a waiver of out Co., Phillips Petroleum argument the regard unsound amici’s 94 L.Ed. 1194 To the Ct.S. rights necessity cre- all substantive of that effect, Thornton, supra. Lee v. see same sovereign immunity a of such ate waiver Moreover, of provisions since under the damages are to re- money available 1618 absolute discretion § 19 U.S.C. 954, 96 [Page their violation.” dress judicial the lodged agency, in review is not page 954.] appellant available under 5 U.S.C. never Congress It is clear to me 701(a). Safety F. Action & Health v. § person a create the intended that could C., U.S.App.D.C. T. 498 F.2d money damages for Tucker right under the (C.A.D.C.1974). constitutionality by challenging Act of by The Ninth cases cited the ma- Circuit which very legislation forms the basis jority point. are in The his claim. by way in each of those cases found from agency. action taken in an review ACT ADMINISTRATIVE PROCEDURE Here, appellant has to follow refused majority The holds that the district court procedure outlined either U.S.C. proceed provi- under the had Secretary and the has taken §§ Act, of the Administrative Procedure sions [Emphasis under those statutes. no action The 701—706. section 5 U.S.C. review §§ appellant, The in lieu of follow- supplied]. Act, 701(a), specifically ex- provisions has chal- ing (1) empts: preclude judicial statutes which constitutionality lenged the of 19 U.S.C. reviews, (2) agency is com- action which being an integral part latter agency by discretion law. The mitted by Congress to outlined procedure in denying petition of discretion a exercise re- person followed who desires a be remission or forfeiture is not reviewa- mitigation penalties or a mission Cadillac, ble. United States One 1961 for under provided (C.A.6, 1964). F.2d Additional- matter, not claim appellant does re- For ly, the Administrative Procedure Act is a right any action not, itself, to review of medial character and does Subject juris- Secretary. It is his claim that jurisdiction. taken create matter an in- application the Act. Administrative Procedure Act is diction essential B., Airways, can World Inc. v. C. A. to the same effect are Richardson 2. Other cases (C.A. 1968); (C.A.3, App.D.C. 392 F.2d v. United 465 F.2d Chippewa Tribal v. Minne- Council 1972), Twin Cities cert. denied Tribe, Atkinson, Chippewa (C.A.8, sota 370 F.2d Chaudoin (C.A.3, 1974); Pan Ameri- dependent grant subject jurisdic- matter majority completely overlooks the prose- an can tion under which action be known fact the overland transporta- irrespective part action on the cuted tion of contraband into the United States is authority I agency. support find “junkies” use or worn-out motor majority’s position jurisdictional on this seldom a vehicles jus- value sufficient to claim. tify expense aof formal condemnation proceeding. fact, To avoid majori- Hickel, such as Brandt v. Cases “However, ty say: ,we cannot believe that (C.A.9, 1970), and Coleman v. United Congress either to, intended or may consist- (C.A.9, 1966), rev’d on ently with the Constitution, make enforce- grounds laws, ment of the forfeiture the primary (1968), that holding the Admin- contemporary justification of pun- which is istrative Procedure Act permit does not a ishment and deterrence . . . .” Id. at in support my position trial de novo is of 763'. In making statement, this the ma- Act independent that the does create an jority neglects to comment on recog- Otherwise, ground jurisdiction. of the trial nized distinction between the seizure of novo, by would be de rather review. contraband and vehicles used in move- its As late as United States Consolidated ment and seizure other property sub- Smelting Co., Ltd., Mines & 455 F.2d 432 ject ownership. to legislation The not, does (C.A.9, 1971), speaking subject, “ urged as the majority, deny the Fifth ‘. said: . . Administrative Pro- [T]he Amendment rights “poor.” of the If the permit cedure Act does not a ” de trial novo “poor” elect to violate our Customs Laws of administrative decisions.’ It is funda- doing and in so use types valueless of vehi- if mental is not entitled to cles, the values which will not reimburse evidence, it is not a original receive court of government for its formal condemna- jurisdiction. expenses, tion they compelled should be provisions Under remission comply existing law, the same as oth- 19 U.S.C. absolute discre- poor ers. The governed and rich are Secretary vested tion is in of the Trea- the same Constitution. Because sury. appellant attempt did I background gov- believed our factual is file a bond under he is in position no Kras, erned United States v. argue entitled an adminis- (1973), 34 L.Ed.2d 626 and trative review agency of non-existent ac- Schwab, Ortwein v. tion under that statute. He took no action cases which whatsoever under § 1618. severely limited the overall effect of Boddie Connecticut, CONSTITUTIONAL CHALLENGE upon ease which the disagree I Again, my brethren. majority relies. Here, we are concerned moving with fast Kras, crossing vehicles out boundary international it is emphasized that the marital We eyes lines. cannot close our relationship and the associated interests thousands customs violations committed that surrounded the establishment and dis- annually on both our Mexican and Canadian solution the marriage in Boddie had no lodging borders. The of some discretion in connection whatsoever with the area of eco- the Customs Officials as to the nomics seizure of and social welfare spe- involved in amount, the vehicle and the if any, proceedings cial bankruptcy. such as in absolutely so, proper being essential ad- That the Court reasoned that the general applicable ministration. attitude and in measuring pro- standard might priety classification, driver entirely Congressional conduct one be justification. Beyond ques- different from that of another that of rational tion, play should call into wide discretion the enforcement of our Laws Customs part charge. of the official should be classified area economics welfare, rather than social general our America, of the Boddie marital donnybrook UNITED STATES of party desperate- was Plaintiff-Appellee, where one relationship from the a divorce attempting obtain ly other. al., Wesley et James AKERS Schwab, supra, even more Ortwein Defendants-Appellants. There, closely point. Nos. 75-1666 and 74-3295. litigation in- pending recognized that Appeals, United States Court was “. payments volving welfare Ninth Circuit. and social wel- of economics in the area Aug. at Id. 410 fare.” classification, suspect such since Rehearing Denied in No. 74-3295 race, alienage present, nationality or 18, 1976. Oct. standard was applicable Rehearing In Banc Denied in No. justification as Kras. In applied in rational 75-1666 Nov. Ortwein, Kras, justifica- the rational as in fees payment of was that for the tion assist in offset- produce revenue to

would administering sys- expenses

ting Clearly, purpose requiring

tem. challenged legislation under us was make certain there

case before be a fund available to assist

would expenses of seizure of the

payment of attempted Sure-

property and confiscation. beyond judicially our

ly, power it is not proceeding, if resist-

notice claimant, to well in could amount

ed $2,500.00. Certainly, is no

excess there present

suspect classification case. hold legislation

I would under pro- integral part

attack laws

tecting against smuggling our borders constitutionally

has a rational basis.

CONCLUSION judgment

I would affirm the of the lower

court.

Case Details

Case Name: John E. Wiren v. Donald Eide, as District Director of the Bureau of Customs

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 9, 1976

Citation: 542 F.2d 757

Docket Number: 74-1169

Court Abbreviation: 9th Cir.