Lee v. Forfeiture Counsel, Asset Forfeiture Section, Drug Enforcement Administration et al
Filing
42
OPINION AND ORDER granting 23 Defendant's Motion to Dismiss Complaint. The Complaint is dismissed with prejudice. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 8/18/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KATRICE ANTOINETTE LEE,
Plaintiff,
v.
Case No: 2:13-cv-806-FtM-29CM
FORFEITURE COUNSEL, ASSET
FORFEITURE
SECTION,
DRUG
ENFORCEMENT
ADMINISTRATION
and UNKNOWN RESPONDENT,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of the United
States’ Motion to Dismiss Amended Complaint (Doc. #23) filed on
June 2, 2014.
Plaintiff filed a Motion Against Dismissal of
Amended Complaint (Doc. #36) on June 13, 2014.
For the reasons
stated below, the motion is granted.
I.
On August 20, 2013, the Collier County Sheriff’s Office seized
$48,000 (the “property”) from plaintiff Katrice Antoinette Lee
(plaintiff) during a traffic stop.
The money was subsequently
turned over to the Drug Enforcement Agency (DEA) for administrative
forfeiture and Notice of Seizure letters were sent to plaintiff
and plaintiff’s counsel.
The Notice of Seizure letters provided
that: “You may petition the DEA for return of the property or your
interest in the property (remission or mitigation), and/or you may
contest the seizure and forfeiture of the property in Federal
court. You should review the following procedures very carefully.”
(Doc. #19-1.)
To request a remission or mitigation of forfeiture,
the letter stated:
If you want to request the remission (pardon) or
mitigation of the forfeiture, you must file a petition
for remission or mitigation with the Forfeiture Counsel
of the DEA within thirty (30) days of your receipt of
this notice. The petition must include proof of your
interest in the property and state the facts and
circumstances which you believe justify remission or
mitigation.
(Doc. #19-1.)
To contest a forfeiture, the letter stated:
In addition to, or in lieu of petitioning for remission
or mitigation, you may contest the forfeiture of the
seized property in UNITED STATES DISTRICT COURT. To do
so, you must file a claim with the Forfeiture Counsel of
the DEA by November 13, 2013.
The claim need not be
made in any particular form. The claim shall identify
the
specific
property
being
claimed;
state
the
claimant’s interest in such property; and be made under
oath, subject to penalty of perjury. . . . If you wish
to contest the forfeiture of the asset, you must comply
with the procedures set forth herein. Your failure to
do so will result in the termination of your interest in
the asset, and may preclude your contesting the
forfeiture of the asset in any judicial proceeding –
either civil or criminal – even if such proceeding has
already been commenced or is commenced in the future.
(Doc. #19-1) (internal citations omitted).
On November 13, 2013, plaintiff’s counsel sent a request for
remission to the DEA.
executed.
The request, however, was not properly
The DEA informed plaintiff of the deficiencies in the
request and provided plaintiff with an opportunity to file another
2
request for remission.
(Doc. #27, pp. 1-2.)
In addition to filing
the request for remission, plaintiff filed a Complaint for Return
of Property in federal court on November 18, 2013.
The Complaint was not signed by plaintiff.
was filed on December 12, 2013.
(Doc. #1.)
An Amended Complaint
(Doc. #3.)
Plaintiff cured the administrative deficiencies and promptly
sent an amended letter to the DEA Forfeiture Counsel dated December
13, 2013.
(Doc. #19-3; Doc. #36, p. 3.)
The letter from counsel
was captioned “Re: Remission of Forfeiture As Outlined Below.”
The letter sought the return of the cash on the basis that it was
seized in violation of the Fourth Amendment.
The letter included
plaintiff’s name and address, stated that the currency was hers,
and described the currency.
It further stated that “[t]his claim”
was being sent to Forfeiture Counsel, and was submitted under
penalty of perjury (but was not signed by plaintiff).
The government filed a Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. #8) on January 27, 2014, and plaintiff filed a
Memorandum in Opposition (Doc. #13) on March 30, 2014.
The
government, with leave of the Court, filed a Reply (Doc. #16) on
April 22, 2014.
The Court granted the government’s motion on May
5, 2014, and dismissed the Amended Complaint without prejudice.
(Doc. #18.)
In dismissing the Amended Complaint, the Court stated
that “a federal court generally lacks jurisdiction to review the
merits of an administrative forfeiture . . . A federal court does,
3
however, have jurisdiction to review whether the agency properly
followed
the
forfeiture.”
procedural
safeguards
in
place
at
the
time
of
(Id. at 3.)
Plaintiff
filed
a
[Second]
Forfeiture on May 19, 2014.
Amended
(Doc. #20.)
Complaint
to
Review
Plaintiff alleges that
she filed a request for remission as well as a complaint in the
Middle District of Florida, but was not given a hearing on the
matter.
As to the requested relief, plaintiff requests that the
Court review the case to determine whether the agency properly
followed
the
procedural
safeguards.
(Id.
¶¶
5-9.)
In
the
alternative, plaintiff alleges that the DEA ignored her request
even though she complied with the instructions in the Notice of
Seizure letters by filing a request for remission with the DEA and
a complaint in this Court.
(Id. ¶¶ 11-16.)
The government moves for dismissal of plaintiff’s Second
Amended Complaint on the grounds that plaintiff received proper
notice of the forfeiture and failed to comply with the procedure
for
contesting
an
administrative
forfeiture.
(Doc.
#23.)
Plaintiff admits that she received proper notice, thus, the only
issue is whether she filed a “claim” which would have stopped the
administrative
forfeiture
and
compelled
proceed by judicial forfeiture.
4
the
United
States
to
II.
A person seeking to challenge the administrative forfeiture
of her property in a judicial forum must file a “claim” with the
appropriate official no later than the deadline set forth in the
personal notice letter.
18 U.S.C. § 983(a)(2)(A)-(B).
A claim
need not be made in any particular form, but must: (1) identify
the property being claimed; (2) state the claimant’s interest in
the property; and (3) be made under oath, subject to penalty of
perjury.
18 U.S.C. § 983(a)(2)(C)-(D).
The timely filing of a
claim stops all administrative forfeiture proceedings.
The claim
is then transferred to a United States Attorney who must initiate
a judicial forfeiture action in a federal district court within
ninety days or return the property.
a
claimant
fails
to
file
administratively forfeited.
a
18 U.S.C. § 983(a)(3)(A).
timely
claim,
the
property
If
is
19 U.S.C. § 1609.
In addition to, or in lieu of a claim, a claimant may file a
petition for remission and/or mitigation within thirty days of
receipt of the notice of seizure.
28 C.F.R. § 9.3(a).
“The
purpose of the remission statute is to grant the executive the
power to ameliorate the potential harshness of forfeitures.”
In
re Sixty Seven Thousand Four Hundred Seventy Dollars, 901 F.2d
1540, 1543 (11th Cir. 1990) (footnote omitted).
A petition for
remission and/or mitigation must include a description of the
petitioner’s interest in the property and state the facts and
5
circumstances justifying remission or mitigation.
1.)
See also 28 C.F.R. § 9.3(c).
(Doc. #28, p.
“Any factual recitation or
documentation of any type in a petition must be supported by a
declaration under penalty of perjury.”
28 C.F.R. § 9.3(c)(2).
Upon receipt of a petition, the seizing agency investigates the
merits of the petition and prepares a written report for the
reviewing official.
28 C.F.R. § 9.3(f).
The ruling official then
reviews the petition and report, and rules on the merits of the
petition.
“No hearing shall be held.”
28 C.F.R. § 9.3(g).
If
the petition is denied, the petitioner may file a request for
reconsideration.
28
U.S.C.
§
9.3(j).
“The
remission
of
forfeitures is neither a right nor a privilege, but an act of
grace.”
In re Sixty Seven Thousand Four Hundred Seventy Dollars,
901 F.2d at 1543.
In this matter, plaintiff sought the return of the seized
property by filing a letter with the DEA titled “REMISSION OF
FORFEITURE AS OUTLINED BELOW.”
(Doc. #30.)
The letter is not
captioned a “claim,” it does not refer to itself as a “claim,” it
does not request judicial review, and it does not seek transfer to
a United States District Court.
plaintiff’s
November
13,
2013
(Id.)
letter
Following its receipt of
for
remission,
the
DEA
notified plaintiff and plaintiff’s counsel that the “Petition for
Remission or Mitigation” it received was defective.
1.)
(Doc. #27, p.
Neither plaintiff nor plaintiff’s counsel notified the DEA
6
that the letter had been misconstrued, or that plaintiff wished to
proceed with judicial review rather than administrative review.
On December 13, 2013, the DEA received a second letter titled
“REMISSION OF FORFEITURE AS OUTLINED BELOW.”
(Doc. #19-3.)
The
second letter differed from the first in that it referred to itself
as a “claim” and contained a section titled “Contents of Petition
Pursuant to 28 CFR 9.3(C).”
Under this section, plaintiff states
that she is “claiming interest in the seized property.”
(Id. at
4.) Although the letter referred to itself as a “claim,” plaintiff
does not argue that it should be construed as a claim for judicial
review.
Furthermore, plaintiff’s claim of interest in the seized
property was made pursuant to 28 C.F.R. § 9.3, which governs
petitions for remission or mitigation in administrative forfeiture
cases.
Accordingly, the Court will not construe the claimed
interest in the letter as a claim for judicial review.
See Martin
v. Leonhart, 717 F. Supp. 2d, 92, 99 (D.D.C. 2010) (rejecting the
plaintiffs’ attempt to recast their petition for remission as a
claim for judicial review); Phillips v. United States, No. CV-098172-PCT-FJM, 2010 WL 2690574, at *2 (D. Ariz. July 6, 2010)
(declining to construe the plaintiff’s Petition for Remission or
Mitigation, filed with the assistance of legal counsel, as a claim
for judicial review).
Under the scheme established by Congress, the filing of a
claim by an aggrieved party is the exclusive means by which a
7
claimant can have a judicial determination as to the forfeiture’s
validity.
United States v. Garza, 486 F. App’x 782, 784 (11th
Cir. 2012) (citing Mesa Valderrama v. United States, 417 F.3d 1189,
1196 (11th Cir. 2005)).
The only aspect of an administrative
forfeiture that a court can consider is whether plaintiff was given
reasonable written notice of the nonjudicial civil forfeiture
proceedings in sufficient time to file a claim with the agency.
Valderrama, 417 F.3d at 1196 (citing 18 U.S.C. § 983(e)).
Plaintiff
concedes
that
the
Notice
of
Seizure
letters
provided her with the requisite notice in sufficient time to
challenge the forfeiture proceedings.
specifically
describe
the
Although the notice did not
differences
between
submitting
a
“petition” and submitting a “claim,” the notice clearly informed
plaintiff that she had two distinct avenues of relief available.
Plaintiff—who
has
been
represented
by
counsel
throughout
the
proceedings—attempted to challenge the forfeiture by filing this
action at the time she submitted her first request for remission.
The filing of this action, however, is not a substitute for the
procedure set forth in the Notice of Seizure letters.
See Coley
v. United States, 180 F. App’x 90, 92 (11th Cir. 2006) (the failure
to
file
judicial
a
claim
review
in
of
the
the
administrative
forfeiture).
proceedings
Because
precludes
plaintiff
acknowledged that she was given reasonable notice and failed to
file a claim challenging the forfeiture with the Forfeiture Counsel
8
of the DEA, the Court lacks jurisdiction to the review the merits
of the Declaration of Forfeiture.
Accordingly, it is now
ORDERED:
1.
Defendant’s Motion to Dismiss Amended Complaint (Doc.
#23) is GRANTED and the Complaint is dismissed with prejudice.
2.
The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2014.
Copies:
Counsel of record
9
18th
day of
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