Rivera - Brigido v. Forfeiture Counsel, Asset Forfeiture Section, Drug Enforcement Administration

Filing 14

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 6/18/2014: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JORGE ADRIAN RIVERA-BRIDIGO,
Plaintiff,
v.
FORFEITURE COUNSEL, et al,
Defendants.

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No. 13 C 8921

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the Government’s motion to dismiss. For
the reasons stated below, the motion to dismiss is granted.

BACKGROUND
On October 15, 2013, the United States Drug Enforcement Administration
(DEA) seized from Plaintiff Jorge Adrian Rivera-Brigido (Rivera) $30,300.00 in
United States currency in $20, $50, and $100 denominations (Currency). In
November 2013, the Government commenced administrative forfeiture proceedings
to forfeit the currency. On December 13, 2013, Rivera filed the instant action and
indicated in his complaint that he opposed the forfeiture of the Currency. On
February 12, 2014, the DEA, having received no claim for the Currency or notice of

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the filing of the instant action, forfeited the Currency and terminated the
administrative process. The Government moves to dismiss the instant action.

LEGAL STANDARD
Pursuant to 18 U.S.C. § 983(a)(2) (Section 983(a)(2)), “[a]ny person claiming
property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture
statute may file a claim with the appropriate official after the seizure. . . .” 18 U.S.C.
§ 983(a)(2). A Section 983(a)(2) claim must “(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. A Section 983(a)(2) claim “need not be
made in any particular form. . . .” Id. In addition, pursuant to 28 C.F.R. § 9.3
(Section 9.3), certain persons may file a petition for remission or mitigation in an
administrative forfeiture proceeding. Id.

DISCUSSION
The Government argues that the instant action should be dismissed because
once the time to file a claim in the administrative forfeiture proceedings expired, this
court was divested of subject matter jurisdiction. Pursuant to Section 983(a)(2), a
claim “may be filed not later than the deadline set forth in a personal notice letter
(which deadline may be not earlier than 35 days after the date the letter is mailed),
except that if that letter is not received, then a claim may be filed not later than 30
days after the date of final publication of notice of seizure.” 18 U.S.C. §
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983(a)(2)(B). A district court is divested of subject matter jurisdiction upon the
initiation of an administrative forfeiture proceeding and jurisdiction will only arise if
there is a timely claim filed. Linarez v. U.S. Dept. of Justice, 2 F.3d 208, 211 (7th
Cir. 1993)(holding that a district court is divested of jurisdiction by the initiation of
an administrative forfeiture proceeding); see also, e.g., Mohammad v. United States,
169 Fed.Appx. 475, 480 (7th Cir. 2006)(stating that “by sending notice of a seizure
and proposed forfeiture to parties known to be interested in the property and
publishing notice to all others in a newspaper-an agency holding seized property
divest[ed] the district court of subject matter jurisdiction to review the forfeiture” and
“[t]he district court remain[ed] without jurisdiction unless an interested party timely
submit[ted] a claim and post[ed] a bond with the seizing agency”); United States v.
Burns, 2000 WL 374283, at *2 (7th Cir. 2000)(stating that “[b]y initiating
administrative forfeiture proceedings, an agency that has seized property divests the
district court of subject matter jurisdiction over the forfeiture”). The Government
contends that a notice of seizure (Notice) was sent to Rivera on November 13, 2013.
The Government contends and Rivera does not dispute that the Notice read in part as
follows:
In addition to, or in lieu of petitioning for remission or mitigation, you may
contest the forfeiture of the seized property in the UNITED STATES
DISTRICT COURT. To do so, you must file a claim with the Forfeiture
Counsel of the DEA by December 18, 2013. The claim need not be made in
any particular form (Title 18, U.S.C. Section 983(a)(2)(D)). The claim shall
identify the specific property bring claimed. . . . 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,
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and may preclude your contesting the forfeiture of the asset in any judicial
proceeding - either civil of criminal - even if such proceeding has already been
commenced or is commenced in the future.
(P Ex. 1). The Government contends that it waited 60 days after sending the notice
and, having received no notice of a claim filed by Rivera or notice of the instant
action, the Government forfeited the Currency and terminated the administrative
process.

I. Filing of Instant Action
Rivera contends that he complied with the timing requirements under Section
983(a)(2), by filing the instant action on December 13, 2013. However, the term
“claim” referred to in Section 983(a)(2) referred to filing a claim with the appropriate
federal agency, rather than initiating an action in federal district court. See, e.g., 18
U.S.C. § 983(a)(2)(E)(stating that “[e]ach Federal agency conducting nonjudicial
forfeitures under this section shall make claim forms generally available on
request”); Mohammad, 169 Fed.Appx. at 480 (stating that “§ 983 defines the steps to
follow in making a claim with the agency that seized and holds the property” and
indicating a claim must “submit[] a claim . . . with the seizing agency”)(emphasis in
original); United States v. $7,696.00 In U.S. Currency, 2013 WL 1827668, at *3
(N.D. Iowa 2013)(explaining that a claim must be filed “with the law enforcement
agency,” in “the nonjudicial forfeiture action”).
The court also notes that although Rivera repeatedly claims that he served the
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DEA with the summons and complaint in this action on December 18, 2013, (Ans. 3,
5, 8, 10, 13), no such executed service has been reflected on the docket by Rivera. In
addition, the certificate of service attached to Rivera’s response shows that service
was mailed to the DEA on February 24, 2014, after the completion of the forfeiture
proceedings. (P Ex. 7); see also Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy,
552 F.3d 885, 891-92 (D.C. Cir. 2009)(stating that the claimant “received adequate
notice of the administrative forfeitures, [] that it chose to contest those forfeitures
only by filing petitions for discretionary remission, and that it never raised any
judicial forfeiture arguments before the DEA”). Thus, the filing of the instant action
did not comply with the requirements in Section 983(a)(2) or the Notice for the filing
of a claim.

II. Petition for Remission or Mitigation
Rivera also contends that on December 11, 2013, he mailed to the DEA a
document (Petition) entitled “Petition for Remission or Mitigation of a Civil
Forfeiture Action by the United States Drug Enforcement Administration.” (Ans. 2).
Rivera contends that he intended his Petition to serve both as a petition for remission
or mitigation under Section 9.3 and a notice of a claim to the DEA under Section
983(a)(2). Rivera, however, points to no controlling precedent that would allow the
same document to serve both as a claim opposing a forefeiture and a petition for
remission or mitigation. Section 983(a)(2) and Section 9.3 clearly contemplate
separate documents, particularly since such documents would entail differing legal
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positions as to the overall validity of the seizure. See In re Twenty-Seven Thousand
Seven Hundred Dollars and Twenty-Five Cents ($27,700.25) U.S. Currency and
Coin, 2014 WL 37749, at *4 (S.D. Miss. 2014)(explaining that a “petitioner seeking
remission or mitigation of a forfeiture does not contest the legitimacy of the
forfeiture,” whereas a “ petition for remission or mitigation is a means of
ameliorating the harshness of forfeiture when mitigating circumstances
exist”)(internal quotation omitted)(quoting United States v. Morgan, 84 F.3d 765,
767 n. 3 (5th Cir. 1996)); Starwood Management, LLC v. United States, 2012 WL
6596635, at *2 (D. Ariz. 2012)(explaining that “[a] petition for remission seeks the
discretionary return of the property from the agency and a claim initiates the judicial
process to decide whether the property should be forfeited”); Cohen-Sanchez v.
United States ex rel. Drug Enforcement Admin., 2012 WL 1150760, at *3 (D.N.J.
2012)(stating that “[a] Claim challenges the validity of the seizure,” but “[o]n the
other hand, by filing a Petition, the petitioner admits the validity of the seizure but
requests relief due to mitigating circumstances”). Rivera has not shown that the
Government improperly construed the Petition as anything other than what its title
reflected, namely a petition for remission or mitigation. See, e.g., Rodriguez v. Drug
Enforcement Administration, 219 Fed.Appx. 22, 23 (1st Cir. 2007)(stating that “[a]
clear misconstrual of his petition states a due process claim within the district court's
subject matter jurisdiction”). Thus, the filing of the Petition did not comply with the
requirements in Section 983(a)(2) or the Notice for the filing of a claim.

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III. Equitable Jurisdiction
Rivera also argues that even if this court were divested of subject matter
jurisdiction by the initiation of the administrative forfeiture proceedings, this court
has discretion to exercise equitable jurisdiction in this case under the equitable
tolling doctrines. (Ans. 10-11); see also Cada v. Baxter Healthcare Corp., 920 F.2d
446, 450 (7th Cir. 1990)(discussing equitable tolling doctrines). However, the
Seventh Circuit has indicated that the exercise of equitable jurisdiction is generally
not appropriate in cases such as this. Mohammad, 169 Fed.Appx. at 481. In
addition, even if this court had discretion to exercise equitable jurisdiction in this
case, Rivera has not shown that such an exercise of discretion is warranted in this
case. Rivera was provided with clear and proper notice of the administrative
forfeiture proceedings and failed to act to pursue a claim in a timely fashion. Rivera
has not provided good cause for his delay. Rivera asserts that he “was induced by
the DEA into allowing the deadline to file a claim to pass,” by sending Rivera a letter
indicating that the seizure would be ruled on administratively and by failing to notify
the United States Attorney’s Office which then could have filed a judicial forfeiture
action. (Ans. 9-10); see also $7,696.00 In U.S. Currency, 2013 WL 1827668, at *3
(explaining that “[u]nder 18 U.S.C. § 983, when a federal law enforcement agency
initiates a forfeiture action and a claimant files a claim of ownership with the law
enforcement agency, the nonjudicial forfeiture action is terminated and the United
States must file a civil complaint for forfeiture within ninety days of the date the
claimant filed the claim of ownership”). However, Rivera has never offered
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documentation to substantiate his assertion that he served the DEA on December 18,
2013. Nor has Rivera shown that he was misled in any way by the Government. The
Notice clearly explained to Rivera what he needed to do to make a claim, and the
undisputed facts show that Rivera chose not to follow such directions. There is
nothing unfair in holding Rivera responsible for his own delay and inaction. The
administrative forfeiture process is in place to avoid unnecessary delays and
expenses. Judicial economy would not be served by reopening the completed
forfeiture process at this juncture.

IV. Evidentiary Hearing
Rivera argues that he is entitled to an evidentiary hearing because the
Government is claiming it received inadequate notice and where due process rights
are at issue a hearing is warranted. See Krecioch v. United States, 221 F.3d 976, 980
(7th Cir. 2000)(stating that “federal courts possess jurisdiction to review collateral
due process attacks on administrative forfeitures”); United States v. Robinson, 434
F.3d 357, 362 (5th Cir. 2005)(stating that “[o]nce an administrative forfeiture is
complete, a district court may review only ‘whether the forfeiture comported with
constitutional due process guarantees’”)(quoting Kadonsky v. United States, 216 F.3d
499, 502 (5th Cir. 2000)). However, the undisputed record shows the notice that
Rivera admittedly received and that Rivera failed to act in a timely fashion to file a
claim in accordance with the Government’s notice and Section 983(a)(2). Rivera
fails to present any evidence relating to his claim in this case that would legitimately
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raise due process concerns. Rivera’s ad hoc explanations and generalized claims of
confusion do not provide any basis for the necessity of an evidentiary hearing in this
case. Nor do the vague representations by Rivera’s counsel that on some unspecified
date he “had conversations with the United States Attorney’s office,” about matters
provide a sufficiently detailed factual basis to warrant an evidentiary hearing. (Ans.
3). Based on the above, the Government’s motion to dismiss is granted.

CONCLUSION
Based on the foregoing analysis, the Government’s motion to dismiss is
granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 18, 2014

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