Frazier et al v. United States Of America

Filing 12

ORDER denying Government's 12 (b) (1) 6 Motion to Dismiss. Signed by Chief Judge Lisa G. Wood on 3/31/2015. (ca)

n the wnfteb stafto 3itrid Court
for the boutblern Jttritt of georgia
ruututtk Otbtoton
MARC VICTOR FRAZIER and SHARON
FRAZIER,
Plaintiffs,
CV 214-014
VS.

UNITED STATES OF AMERICA,
Defendant.

ORDER

After the Drug Enforcement Administration seized Plaintiffs
Marc and Sharon Frazier's assets in accordance with federal
civil asset forfeiture laws, Plaintiffs sent the DEA a document
captioned "Request for Remission/Mitigation of Forfeiture and
Objection to Forfeiture." The DEA denied what it interpreted as
Plaintiffs' petition for remission, and Plaintiffs subsequently
filed a complaint for return of the seized property in this
Court. The issue before the Court on the Government's Motion to
Dismiss the Complaint (Dkt. no. 6) is whether the request
Plaintiffs submitted to the DEA can be characterized as a
"claim" that would have required the DEA to cease its
administrative proceedings and initiate a judicial forfeiture

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action or return the property, or whether the request was simply
an administrative request for remission or mitigation, the
denial of which is not subject to judicial review. Because
Plaintiffs indicated that they sought judicial proceedings in
their request to the DEA, and because they allege that the DEA
misconstrued their request in violation of their due process
rights, the Court has subject matter jurisdiction to consider
their complaint and DENIES the Government's motion to dismiss.
BACKGROUND

In April and May of 2013, the DEA seized various assets
belonging to Plaintiffs on suspicion that the assets were fruit
or instruments of an illegal drug trade. Dkt. no. 6, pp. 1-2.
The assets included bank accounts, vehicles, and jewelry. Id. at
2-3.
Throughout May, 2013, the DEA sent Plaintiffs forfeiture
notices for each asset the DEA had seized. See generally Dkt.
no. 1-2. Each notice provided the procedures Plaintiffs could
follow to either seek an administrative pardon by requesting
"remission or mitigation of forfeiture" or contest the
forfeiture in federal court. See, e.g., Dkt. no. 1-2, p. 1. To
initiate the administrative process, Plaintiffs were instructed
to file a "petition for remission or mitigation;" to initiate
the federal court challenge, Plaintiffs were instructed to file

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a "claim." Id. Specifically, under the heading "To Contest the
Forfeiture," the notice 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 July 5, 2013. The
claim need not be made in any particular form.
Id.
On June 18, 2013, Plaintiffs, through their counsel, sent
the DEA a document entitled "Request for Remission/Mitigation of
Forfeiture and Objection to Forfeiture." See Dkt. no. 6-2, p. 2.
The cover letter for that document referred to it as a "Request
for Remission." Id. at 1. Plaintiffs stated in their request
that they "hereby request remission and/or mitigation of
forfeiture and hereby object to the administrative forfeiture
proceedings initiated by the [DEA]," and that they "demand
remission and/or mitigation of the forfeiture action, demand
that the forfeiture action be dismissed and/or withdrawn, and
demand the immediate return and relinquishment of all their
seized property . . . ." Id. at 191 1, 11. On June 26 and July 2,
2013, Plaintiffs submitted substantially similar documents that
included identifications for seized items the previous documents
had omitted. See Dkt. nos. 3, 4. These were each referred to in
their cover letters as "Second Request for Remission" and "Third
Request for Remission," respectively. Id.

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The DEA rejected what it interpreted to be "petitions," and
sent letters to Plaintiffs notifying them that they were
rejected for not meeting the requirements of certain regulations
governing administrative petitions. Dkt. nos. 6-5, 6-6, 6-7. The
notifications gave Plaintiffs 30 days to cure the deficiencies,
Id., which they did on August 19, Dkt. no. 6-8. The cover letter
for the amended "petitions" called them the "First, Second, and
Third Request for Remission." Id. at 1. The DEA responded that
the "Petition for Remission and/or Mitigation will be ruled on
administratively by this office." Dkt. no. 6-9,

p. 1. The DEA

ultimately denied the petitions on October 22, 2013. Dkt. no. 611. Plaintiffs filed a complaint in this Court on February 3,
2014, arguing that the documents they filed were simultaneously
petitions and claims, and that the Government must release the
seized property because it failed to follow the statutory
procedures for initiating judicial review of seizures for which
individuals have filed a claim.
LEGAL STANDARD
The Government challenges Plaintiffs' complaint under both
Rules 12(b) (1) and 12 (b) (6). A motion to dismiss brought
pursuant to Rule 12(b) (1) of the Federal Rules of Civil
Procedure may challenge the court's subject matter jurisdiction
based on the face of the pleadings or the substantive facts of
the case. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th
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Cir. 2003). When addressing a facial challenge, allegations in
the plaintiff's complaint are taken as true, and the court
determines whether the complaint sufficiently alleges a basis
for subject matter jurisdiction. Scarfo v. Ginsberg, 175 F.3d
957, 960 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990)). The complaint may be dismissed on
a facial attack only "if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Jackson v. Okaloosa Cnty., Fla., 21 F.3d
1531, 1534 (11th Cir. 1994) (citation omitted)
When addressing a factual challenge, a court "is free to
weigh the evidence and satisfy itself as to the existence of its
power to hear the case." See Lawrence, 919 F.2d at 1528-29
(quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981)); see also Scarfo, 175 F.3d at 960 ("[M]atters outside the
pleadings, such as testimony and affidavits, are considered.")
Therefore, the presumption of truthfulness afforded a plaintiff
under Federal Rule of Civil Procedure 12(b) (6) does not attach
to a factual challenge to the court's subject matter
jurisdiction. See Scarfo, 175 F.3d at 960.
When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th
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Cir. 2010). Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
"to raise a right to relief above the speculative level." Bell
Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At a minimum, a
complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory." Fin. Sec.
Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001))
DISCUSSION

Civil asset forfeiture is a powerful weapon federal law
enforcement agencies may wield in the ongoing battle against
illegal drug trafficking. Its power lies in its ease of use:
federal law enforcement agencies may seize assets that are the
fruit of illicit activity and justify the seizure simply by
showing, by a preponderance of the evidence, that the asset is,
in fact, tied to some category of illegal activity. This ease of
use, though, also poses the risk of snatching the livelihood and
fortunes of innocent citizens who have not been found guilty of
criminal wrongdoing beyond a reasonable doubt by a jury of their
peers.
To mitigate this risk, Congress saw fit to attach
procedural safeguards to this nation's civil asset forfeiture
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laws. To that end, Congress adopted the Civil Asset Reform Act
of 2000 ("CAFRA"), 18 U.S.C. § 983, to ensure that private
interests were protected. One of those safeguards, relevant
here, is the process for filing a post-seizure "claim" for
seizures amounting to less than $500,000. 18 U.S.C.
§ 983(a) (2) (A) . When a "claim" is filed, the DEA must seek a
judicial forfeiture. Alternatively, a plaintiff may instead
consent to allowing the DEA to administratively determine
whether or not the seizure was appropriate. This process, called
a "petition" for remission or mitigation, allows the seizing
agency to determine the merits of the plaintiff's petition, but
it also bars the plaintiff from later seeking a judicial review
if his petition is denied. See 28 C.F.R. Part 9. The question at
issue here is whether Plaintiffs' responses to the DEA were
"petitions," "claims," or, as they argue, both.
I. "Claims" Under CAFRA

If a party wants to challenge a forfeiture in federal
court, he must file a claim with the DEA by the appropriate
deadline stated in the notice of seizure or, if the party did
not receive a notice, then no later than thirty days after the
final publication of the notice of seizure. 18 U.S.C.
§ 983 (a) (2) (B) . The claim "need not be made in any particular
form." Id. § 983(a) (2) (D). A seizing agency must make claim
forms generally available, but the party seeking a judicial
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challenge to the seizure is not required to use the form. Id.
The claim must identify, under oath, the specific property being
claimed and the claimant's interest in that property. Id.
§ 983(a) (2) (C). "No later than 90 days after a claim has been
filed, the Government shall file a complaint for forfeiture
or return the property . . . ." Id. § 983(a) (3) (A). In the
subsequent civil forfeiture proceedings, the government bears
the burden of proving by a preponderance of the evidence that
the property is subject to forfeiture. Id. § 983(c)(1).
II. "Petitions" Under CAFRA

If a party chooses not to seek a judicial challenge to the
forfeiture, he may choose to challenge the forfeiture
administratively. To do so, the party must file a "petition" for
either remission (voidance of the forfeiture) or mitigation
(reduction in the assets seized). 28 C.F.R. § 9.3. Petitions
must contain the following information:
(i) The name, address, and social security or other
taxpayer identification number of the person claiming
an interest in the seized property who is seeking
remission or mitigation;
(ii) The name of the seizing agency, the asset
identifier number, and the date and place of seizure;
(iii) A complete description of the property,
including make, model, and serial numbers, if any; and
(iv) A description of the petitioner's interest in the
property as owner, lienholder, or otherwise, supported
by original or certified bills of sale, contracts,
deeds, mortgages, or other documentary evidence. Such
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documentation includes evidence establishing the
source of funds for seized currency or the source of
funds used to purchase the seized asset.
Id. § 9.3(c) (1). "Any factual recitation or documentation of any
type in a petition must be supported by a sworn affidavit." Id.
§ 9.3(c) (2). "The petition is to be sent to the official address
provided in the notice of seizure and shall be sworn to by the
petitioner or by the petitioner's attorney upon information and
belief, supported by the client's sworn notice of
representation. . . ." Id. § 9.3(e)(2).
Once a petition is received, the seizing agency may prepare
a report on the merits of the petition to provide to the Ruling
Official. Id. § 9.3(f). The Ruling Official considers the report
and then rules on the petition without any hearing. Id.
§ 9.3(g). If the petition is denied, the petitioner may file a
request for reconsideration that will be decided by a different
Ruling Official than the one who ruled on the original petition.
--

§ 9.3(j)(2).
If the seized property is administratively forfeited, the

district court is divested of jurisdiction to review the merits
of the forfeiture action. Linarez v. United States Dep't of
Justice, 2 F.3d 208, 212 (7th Cir. 1993) ("[O]nce the government
initiates an administrative forfeiture proceeding and the
property is not the subject of an ongoing criminal proceeding,
the district court loses jurisdiction to resolve the issue of
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return of property."). However, federal courts may review an
administrative forfeiture to determine "whether the agency
followed the proper procedural safeguards" in forfeiting the
assets. Scarabin v. Drug Enforcement Admin., 919 F.2d 337, 338
(5th Cir. 1990) . "A clear misconstrual of [a] petition states a
due process claim within the district court's subject matter
jurisdiction." Rodriguez v. Drug Enforcement Admin., 219 F.
App'x 22, 23 (1st Cir. 2007).
III. Is Plaintiffs' ""Request for Remission/Mitigation of
Forfeiture and Objection to Forfeiture" a Claim, a
Petition, or Both?

The Government argues that Plaintiffs did not file a claim,
but instead filed a petition, and after their petition was
denied they were barred from seeking judicial review. In making
this argument, the Government cites to several cases that
discuss what is required for a filing seeking the return of
seized assets to appropriately be considered a "claim" as
opposed to a "petition."
18 U.S.C. § 983(a) (2) (C) states that "[a] claim shall: (i)
identify the specific property being claimed; (ii) state the
claimant's interest in such property; and (iii) be made under
oath, subject to penalty of perjury." Id. § 983(a) (2)(C).
Furthermore, "[a] claim need not be made in any particular
form." Id. § 983(a) (2) (D). Despite this language, some courts
have read implicit requirements into the proper form for claims.
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Some of these requirements apply to how the plaintiff titles his
claim, and others apply to the substance of the claim.
Courts frequently reject arguments that documents submitted
to an agency and simply titled "Petition for Remission or
Mitigation," or some equivalent, are actually claims. For
example, the District of New Jersey held that a self-titled
"Petition for Remission or Mitigation" could not later be
construed as a claim where it was titled as a petition and the
attached cover letter repeated that title. Cohen-Sanchez, Civ.
No. 11-6578, 2012 WL 1150760, at *4 (D.N.J. Apr. 5, 2012); see
also Martin v. Leonhart, 717 F. Supp. 2d 92, 98 (D.D.C. 2010)
(holding a letter entitled "Petition for the Return of Money" is
not a claim where it is not captioned as a claim and does not
mention that a claim is being filed)
Some courts have also placed substantive requirements on
purported "claims" beyond those enumerated in § 983(a) (2) (C)
For example, in addition to the Cohen-Sanchez plaintiff's
labeling faults, the Court noted that his letter did not request
judicial review nor seek to transfer his case to the district
court. 2012 WL 1150760, at *4; see also Martin, 717 F. Supp. 2d
at 98 (holding a letter is not a claim where the letter did not
request judicial review or seek to transfer to a district
court); Pert v. United States, CV 3:10-0739, 2011 WL 1792767, at
*4 (D. Nev. May 11, 2011) (letter not a claim where body of
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letter never mentions a "claim" being filed, "demands that the
entire amount be remitted," and does not seek judicial review or
transfer to a district court)
The earliest and most frequently cited of the cases
rejecting a plaintiff's attempt to later construe a petition as
a claim is Malladi Druas & Pharmaceuticals, Ltd. v. Tandy, 538
F. Supp. 2d 162 (D.D.C. 2008) ("Malladi Drugs I")

(affirmed on

other grounds, 552 F.3d 885 (D.C. Cir. 2009)). In Malladi Drugs
I, the court held that a petition could not later be construed
as a claim where "the Petitions were clearly labeled as such.
They contained not one hint that they were not what they said
they were." Id. at 169. Additionally, the Petitions stated they
were filed "pursuant to 28 C.F.R. Part 9, the regulations that
govern petitions, and not the statutory provisions for claims,"
and gave several other indications that plaintiffs intended to
follow the regulatory scheme for petitions rather than the
statutory scheme for claims. Id.
However, Malladi Drugs I concluded its holding that the
petitions in that case were not claims by stating: "CAFRA
simplified the process by which owners of seized property might
regain it. It provides statutory rights. No special forms are
required, no bond need be paid, no legal mumbo-jumbo is
necessary . . ." 538 F. Supp. 2d at 169.

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This Court finds Malladi Drugs I's reasoning and holding
persuasive. To the extent that the holdings of Cohen-Sanchez,
Martin, and Pert explicitly or implicitly require a party
seeking to challenge a forfeiture judicially to invoke certain
words or phrases like "claim," "transfer to district court," or
"judicial review," this Court is not convinced that any
particular words indicating a wish to seek judicial review are
required. However, all of the cases cited above support the
proposition that the onus must be on the plaintiff to provide
some indicia in his claim that it actually is a claim. See
Malladi Drugs I, 538 F. Supp. at 169 (the documents entitled
"petitions" "contained not one hint that they were not what they
said they were.") . But any further requirements for specific
words, phrases, or incantations runs afoul of § 983(a) (2) (C)'s
statement that "[a] claim need not be made in any particular
form." See also Rodriguez, 219 F. App'x at 23 ("Concerning the
government's argument that the appellant never used the term
'claim', which goes to the merits of the claim, we note that if
special language was required, the notice should have said
so.")
Under this reading of § 983's requirements, as informed by
Malladi Drugs I, Plaintiffs' "Request for Remission/Mitigation
of Forfeiture and Objection to Forfeiture" does provide several
indicia that it seeks a judicial forum for Plaintiffs'
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forfeiture action. Unlike the Plaintiff in Malladi Drugs I,
which could not later construe its petition as a claim when the
petition was specifically brought under 28 C.F.R. Part 9,
Malladi Drugs I, 538 F. Supp. 2d 162, Plaintiffs here challenged
their forfeiture under 18 U.S.C. § 983, which governs judicial
forfeitures. See Dkt. no. 6-2, ¶ 10. Plaintiffs also objected
"to the administrative forfeiture proceedings initiated by the
[DEA]", and requested dismissal of the forfeiture action. Id. at
p. 2, ¶ 11. These statements would be out of place in a document
that merely seeks an administrative review of the forfeiture
rather than a judicial challenge. Finally, the substance of the
"Petition/claim" makes arguments postured for a judicial
challenge rather than an administrative pardon: the Plaintiffs
claim that there was no probable cause for the search and
subsequent seizure, that the seizure was instituted and executed
without the requisite showing of a substantial nexus between the
property and unlawful activity, and that the seizure violates
several state and federal statutory and constitutional rights.
Id. ¶[ 4-10. While the Plaintiffs admittedly never uttered magic
words such as "claim," "transfer to district court," or
"judicial review," no particular words are necessary to initiate
a claim. And while Plaintiffs may have referred to the request
as a "petition for remission" in their cover letters, this
language cannot, on its own, overcome the language, title, and
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thrust of the request itself, which clearly contemplates a
judicial proceeding. Plaintiffs have provided enough in their
claim through its substance and reference to § 983 to render
their "petition/claim" a "claim."
The Government argues that Plaintiffs' "petition/claim"
cannot simultaneously be a petition and a claim. In making this
argument, Defendant cites Cohen-Sanchez, which held that "[a]
interested party may respond to notice of the administrative
forfeiture action by: (1) filing a Claim; and/or (2) filing a
Petition. The interested party cannot, however, use the same
document to file both a Claim and a Petition." 2012 WL 1150760
at *2 (citing Malladi Drugs I, 538 F. Supp. 2d 162) . However,
Cohen-Sanchez seems to over-generalize Malladi Drugs I's
holding, which never stated that a claim cannot also be a
petition, but simply held that the petition in that case was not
also a claim. Malladi Drugs I, 538 F. Supp. 2d at 169. Thus, the
Government here has not presented a sound basis for why
Plaintiff's petition cannot simultaneously be a claim.'
One other court, to this Court's knowledge, has discussed
the effect of simultaneously filing a petition and a claim. In
Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy, 552 F.3d 885
1

The Court is aware of one other case suggesting that filing a petition with
an administrative agency waives one's right to file a claim. Martin, 717 F.
Supp. 2d at 99. However, in Martin the plaintiff had filed a timely petition
and later attempted to file an untimely claim. Id. Thus, Martin may stand for
the proposition that filing a petition, on its own, waives the claimant's
right to later file a claim, but it does not suggest that the same document
cannot simultaneously be a petition and a claim.
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(D.C. Cir. 2009) ("Malladi Drugs II")

(affirming on other

grounds Malladi Drugs I), the D.C. Circuit states that a party

"may choose to pursue either the administrative or the legal
remedy, complying with the applicable filing deadline for its
choice." Id. at 889. However, in a footnote, the D.C. Circuit
notes:
The DEA's notice-of-seizure form states that a party
claiming ownership "may petition the DEA for return of
the property . . . and/or . . . may contest the
seizure and forfeiture of the property in Federal
court," implying that an owner may pursue both routes.
This may be true, but as a practical matter, filing a
claim to contest the forfeiture in court ends the
administrative forfeiture from which an owner would
petition for remission.
Id. at 889, n.l. The D.C. Circuit apparently draws no further
conclusions from this language in the DEA's notice form.
Nevertheless, it later states that the "forfeiture statutes and
regulations provide alternative, not sequential, administrative
and legal remedies for an administrative forfeiture" and holds
that the plaintiff waived its right to file a claim by only
filing a petition for administrative review. Id. at 890. While
the D.C. Circuit appears to find that one cannot file a claim
after already having filed a petition, its footnote above also
appears to leave open the possibility of filing both
simultaneously, as was done here. But because claims and
petitions provide mutually exclusive remedies, the DEA should

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have construed Plaintiffs' petition/claim as simply a claim, and
then proceeded accordingly.
Understandably, requiring the DEA to be on the lookout for
claims dressed up as petitions will naturally place a greater
burden on the agency when it receives and interprets these
documents. Cf. Malladi Drugs I, 538 F. Supp. 2d at 169-70
(allowing responses to notices of forfeiture to simultaneously
be claims and petitions "would require seizing agencies to treat
all petitions as claims and to refer all petitions for judicial
forfeiture. That clearly was not the intent of Congress when it
established the claims process."). But if discerning potential
claims from petitions is too great a burden for the DEA, then
perhaps it should not invite claimants to file them using the
language the DEA selected. The notice letters the DEA sent to
Plaintiffs read: "In addition to, or in lieu of petitioning for
remission or mitigation, any person may contest the forfeiture
of the seized property in UNITED TATES DISTRICT COURT by filing
a claim pursuant to 18 U.S.C. § 983(a) . . ." Dkt. no. 1-2, p. 1
(emphasis added). Because claimants are invited to file both
petitions and claims, and because the notice itself states that
claims need not be made in any particular form, id., it is only
natural that some claimants will file both in the same document
in the absence of any instruction to the contrary. Cf.
Rodriguez, 219 F. App'x at 23 (". . . if special language was
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required [to file a claim], the notice should have said so. The
[claimant] was entitled to notice that was not patently
misleading or uninformative.").
The DEA, then, caused any confusion resulting from
Plaintiffs filing their claims simultaneously with their
petitions. If a claimant files such a document with the DEA and
the agency later fails to initiate the judicial forfeiture
process, as happened here, then the court has subject matter
jurisdiction to consider whether the agency violated the
claimant's due process rights. See Rodriguez, 219 F. App'x at 23
("A clear misconstrual of [a] petition states a due process
claim within the district court's subject matter jurisdiction);
cf. In re Matter of $67,470.00, 901 F.2d 1540, 1545 (11th Cir.
1990) (holding that equitable jurisdiction may be appropriate if
the claimant's "failure to properly seek legal relief resulted
from errors of procedure and form or the government's own
misconduct.").
Finally, the Government argues that even if Plaintiffs'
petition was also a claim, "Plaintiffs received ample notice
that the DEA was construing their submissions as petitions for
remission/mitigation," and thus cannot argue post hoc that their
petition was in fact a claim. Dkt. no. 6,

p. 14-15. However, if

a claimant were to simultaneously file a petition and a claim
(at the agency's invitation), the agency's subsequent
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correspondence regarding the petition's status in the
administrative process would be perfectly consistent with the
claimant's request and would not notify the claimant that his
petition/claim had been misconstrued. Plaintiffs, then, were not
on notice that the DEA had failed to initiate a judicial
forfeiture until the administrative proceedings were complete.
By then, the time to initiate judicial proceedings had passed.
CONCLUSION

Plaintiffs allege in their complaint that the DEA
misconstrued their "request for remission/mitigation of
forfeiture and objection to forfeiture." An allegation of
misconstrual states a due process claim within the district
court's subject matter jurisdiction. Rodriguez, 219 F. App'x at
23. Thus, the complaint on its own survives the Government's
12(b) (6) motion to dismiss, and when considered in conjunction
with the submitted evidence it survives the Government's
12(b) (1) motion to dismiss. As such, the Government's motion to
dismiss (Dkt. no. 6) is DENIED.
SO ORDERED, this 31ST day of March, 2015.

LISA GODSEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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