No. 89-7682 Non-Argument Calendar
William J. Snider, Drug Enforcement Admin., U.S. Dept. of Justice, Washington, D.C., John T. Harmon, Asst. U.S. Atty., Montgomery, Ala., for respondents.
Appeal from the United States District Court for the Middle District of Alabama.
Before KRAVITCH, HATCHETT and EDMONDSON, Circuit Judges.
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 thаt 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 unjustified and that the delay of the government in responding to their request for remission violated their due process rights under the
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 investigatiоn 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 thе 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 petitiоners’ cause of action which was granted by the district court.
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); Arca 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; Arca 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.
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. 49487OH910774, 463 F.2d 1168, 1170 (5th Cir. 1971), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972); Arca 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); One 1961 Cadillac, 337 F.2d at 733. Moreover, federal courts are generally prohibited from reviewing agency forfeiture decisions evеn where it is alleged that the Secretary abused his discretion. One 1961 Cadillac, 337 F.2d at 733; Arca 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 agenсy 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; Arca Airlines, 726 F.Supp. at 830; LaChance, 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 considerеd 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. WDBCB2OA9DB041960, Misc. Nо. 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 сourt. Hunsucker, 497 F.2d at 32 & n. 3, 34; In re One 1983 Mercedes Benz Automobile VIN No. WDBCB2OA9DB041960, Misc. No. 1664, slip op. at 4; Ricon, 691 F.Supp. at 1413. Several district courts in this circuit have properly found the court‘s supervisory authority to encompass the activity of DEA agents. In re One 1983 Mercedes Benz Automobile VIN No. WDBCB2OA9DB041960, Misc. No. 1664, slip op. at 4; Matter of $49,065.00 in United States Currency, 694 F.Supp. at 1559-60; Ricon, 691 F.Supp. at 1413 n. 7; In re $15,875 in United States Currency, Civ. No. C87-922; see also Mason, 557 F.2d at 428 (affirming district court‘s exercise of equitable jurisdiction over IRS agents); Richey, 515 F.2d at 1244 (suggesting that supervisory powers reach IRS agents); Hunsucker, 497 F.2d at 33 (same).
The district court was well within its discretion in declining to exercise equitable jurisdiction in this matter. Petitioners received a Notice of Seizure letter from the DEA which accurately apprised them of their option to seek review of the seizure from either the DEA or a federal district court. In order to contest the forfeiture in court, petitioners were required to file a claim of ownership and bond with the DEA within twenty days of the first date of publication of the Notice of Seizure. See
It is inappropriate for a court to exercise equitable jurisdiction to review the merits of a forfeiture matter when the petitioner elected to forego the procedures for pursuing an adequate remedy at law. In re Harper, 835 F.2d 1273, 1274-75 (8th Cir. 1988); United States v. One 1988 Mercedes Benz, 719 F.Supp. 595, 598-99 (E.D. Mich. 1989); In re One 1983 Mercedes Benz Automobile VIN No. WDBCB2OA9DB041960, Misc. No. 1664, slip op. at 5-6; LaChance, 672 F.Supp. at 80; Clow, 579 F.Supp. at 984. Although such jurisdiction might be appropriate when a petitioner‘s failure to properly seek legal relief resulted from errors of procedure and form or the government‘s own misconduct, it cannot be used to enable a petitioner to rescind his own choice as to which avenuе of relief to pursue. See In re Harper, 835 F.2d at 1274-75; In re One 1983 Mercedes Benz Automobile VIN No. WDBCB2OA9DB041960, Misc. No. 1664, slip op. at 5. The district court, therefore, properly held that it lacked jurisdiction to review the merits of the forfeiture.
DUE PROCESS CLAIM
Petitioners also raise the independent claim that the 166 day delay in receiving a determination of their petition for remission violated their right to due process under the
The Supreme Court explicitly has held that an individual‘s property interest in the seized material is insufficient to confer a constitutional right to a speedy disposition of a remission petition. Von Neumann, 474 U.S. at 249, 106 S.Ct. at 614. The Court explained:
The remission statute simply grants the Secretary the discretion not to pursue a complete forfeiture despite the Government‘s entitlement to one.... [R]emission proceedings are not necessary to a forfeiture determination, and therefore are not constitutionally required. Thus there is no constitutional basis for a claim that respondent‘s interest in the ... [seized property], or in the money put up to secure the bond, entitles him to a speedy answer to his remission petition.
Id. at 250, 106 S.Ct. at 615 (emphasis original).
In conclusion, the trial court proрerly held that it lacked jurisdiction to review the merits of the denial of remission. Although federal question jurisdiction supports a review of petitioners’ due process claim, we agree with the trial court‘s conclusion that petitioners failеd to establish such a claim. The judgment of the district court is, therefore, AFFIRMED.