declaration or condemnation of forfeiture (26 C.F.R. § 153.9). Since
notice of forfeiture was mailed to the petitioner on August 7,
1962, and the automobile was not declared forfeited until
September 12, 1962, the petitioner was not in a position to
support a petition for restoration of proceeds of sale or value
of the property, as shown in Exhibit A(9-11).
10. On December 26, 1962, another petition was received in the
Bureau of Narcotics Chicago office from the Pullman Trust and
Savings Bank. On January 3, 1963, the Commissioner of Narcotics
notified the petitioner through its attorney Mr. Patner, that
since the petitioner had not submitted additional support for
administrative relief the Commissioner was compelled to abide by
his decision of December 17, 1962, and the amended petition was
denied, as shown in Exhibit A(12, 13).
11. On January 17, 1963, the Commissioner of Narcotics received
a letter from Mr. Patner which requested reconsideration of the
Commissioner's decisions denying the petitions submitted. Mr.
Patner's letter also raised a question as to what he had been
advised by Mr. Wanzeck of the Bureau of Narcotics Chicago office
regarding the period within which the filing of a petition would
be considered as being "timely", as shown in Exhibit A(14).
12. On January 25, 1963, Narcotic Agent William T. Wanzeck
submitted his comments to the Narcotic District Supervisor
regarding the conversation with Mr. Patner in early December of
1962. Agent Wanzeck's letter reveals that he properly advised Mr.
Patner regarding the caption of the petition and in advising him
that the only recourse available to Mr. Patner was a petition for
restoration of proceeds or value of property. Mr. Patner then
acknowledged to Agent Wanzeck that the petitioner had been
notified of the seizure by letter dated August 7, 1962, but that
he felt that he had no standing to petition until the contract
was in default, as shown in Exhibit A(15-16).
13. On January 29, 1963, Mr. Patner was notified by the
Commissioner of Narcotics that upon reconsideration of the
petitions submitted he was compelled to adhere to his previous
denials of these petitions. The Commissioner advised Mr. Patner
that the denial was predicated on the fact that the delay in
filing a timely petition was entirely due to an error by the
petitioner, and was not the result of any act or omission by an
employee of the Bureau of Narcotics, as shown in Exhibit A(17).
14. On March 1, 1963, the plaintiff filed a Complaint in this
Court seeking review of the actions of the Commissioner of
15. On May 14, 1963, the defendant, United States of America
filed its Motion to Dismiss and Motion for Summary Judgment.
Plaintiff's complaint specifically sets out its reliance upon
the review provision of the Administrative Procedure Act, namely
§ 10 thereof. (Title 5 U.S.C.A. § 1009). It alleges an abuse of
discretion under Title 49 U.S.C.A. §§ 781-788.
Exclusive jurisdiction to consider petitions asserting the
denial of rights or objecting to acts of forfeiture resulting
from violations of the narcotics laws is vested in the Secretary
of the Treasury. Title 19 U.S.C.A. § 1618, U.S. v. One Pontiac
Coupe, 7 Cir., 298 F.2d 421. As already mentioned and set out in
paragraph 6 above, the Secretary of the Treasury has in turn
delegated to the Commissioner of Narcotics authority to exercise
administrative discretion as to "Petitions for Remission or
Mitigation of Forfeiture and/or Restoration of Proceeds of Value
of Property" such as we have here.
§ 1009 of Title 5 U.S.C.A., upon which plaintiff predicates his
complaint specifically excepts from its provisions and therefore
from judicial review; "(2) agency action (which) is by law
committed to agency discretion".
The Commissioner of Narcotics, commensurate with a legally
discretionary power possessed by him, refused to remit or
mitigate the forfeiture in the instant case. This is not a case
where the Commissioner refused to even act per se; we do not
have a situation where he refused to even exercise his
discretionary power. He acted, and his actions were not to the
best interest of the plaintiff. However, his actions were
discretionary. The reason or reasons motivating his actions, by
virtue of the exemption provision of § 1009, cannot be considered
by the court. This court lacks the power to interfere with and in
any way redress the grievances alleged in the instant complaint.
U.S. v. One 1957 Buick Roadmaster, D.C., 167 F. Supp. 597.
Accordingly, the defendant's motion to dismiss the complaint for
failure to state a claim upon which relief can be granted, is
granted, and the complaint is dismissed at plaintiff's costs.
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