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January 11, 1985


The opinion of the court was delivered by: Plunkett, District Judge.


In this suit, plaintiff Bernard Shaney Willis seeks damages and equitable relief from defendant United States of America, to redress alleged violations of his fourth and fifth amendment rights resulting from a seizure of his car by officers of the Drug Enforcement Administration (the "D.E.A.") pursuant to 21 U.S.C. § 881(a)(4). Plaintiff attempts to invoke, and to the extent that damages do not exceed $10,000, defendant purports to "concede," jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2). We find, however, that plaintiff has not stated a cause of action cognizable under the Tucker Act because the fourth amendment and due process clause of the fifth amendment do not give rise to a cause of action directly against the United States of America for money damages. Furthermore, plaintiff cannot maintain this suit under general federal question jurisdiction, 28 U.S.C. § 1331, because the action is barred by the doctrine of sovereign immunity. Plaintiff's equitable claims, however, are cognizable because of the creation of a cause of action and waiver of sovereign immunity by the Administrative Procedure Act, 5 U.S.C. § 702. On the merits, however, we grant defendant's motion for summary judgment and deny plaintiff's cross-motion for summary judgment because we find that plaintiff has not alleged any cognizable violations of his constitutional rights.


The uncontested facts in this case are as follows. On August 4, 1981, D.E.A. agents seized plaintiff's 1977 Chevrolet Corvette. On August 24, 1981, plaintiff received a letter from an officer of the D.E.A. advising him first, that the car had been seized pursuant to 21 U.S.C. § 881(a)(4), subjecting to forfeiture vehicles used to transport controlled substances; second, that the appraised value of the vehicle was $8,000.00; and third, that plaintiff had the right to petition for remission or mitigation, or contest probable cause, in the following manner:

  If it is your intention to file a petition for
  remission or mitigation of forfeiture, it must be
  filed in triplicate with this office within 30 days
  from the date of this letter and must conform to the
  requirements outlined in the above cited authorities.
  If you intend to place the matter in the United
  States District Court to contest the probable cause
  for this seizure, a claim and cost bond of $250.00
  must be filed with this office on or before September

  16, 1981. Indigent persons who desire to place the
  matter before the court, but who are unable to post
  the $250.00 bond, may file an Affidavit of Indigency.
  Further information on this is available from the
  Drug Enforcement Administration.
  If you have any questions regarding the above, please
  contact Anita L. Paryga at (312) 353-1017.

In response, on September 21, 1981, plaintiff, through an attorney, filed a "Petition for Remission of Seized Property" in which plaintiff claimed that neither he nor his vehicle had been involved in unlawful activity and that the seizure of his car by the D.E.A. had deprived plaintiff of his fifth amendment due process rights. Plaintiff asked for immediate return of the car.

On January 7, 1982, a D.E.A. attorney responded by letter to plaintiff's then-attorney, stating that "[t]he petition is denied since the facts reveal that the petitioner was involved in the use of the vehicle in violation of the law." Seven months later, plaintiff's present counsel wrote to the D.E.A. requesting information about the matter. A D.E.A. attorney replied, stating that D.E.A. reports revealed that the car had been used to transport cocaine, but that plaintiff's failure to file a claim and bond to contest probable cause ended his right to a hearing on the matter. The vehicle remains in storage with the government.

Plaintiff alleges several grounds for relief. In Count I, plaintiff claims that the government violated his fourth and fifth amendment rights because there was no "reasonable cause" for the seizure. In Count II, plaintiff claims that he was not given fair warning that he would be deemed to have waived the opportunity to contest probable cause by failing to post bond, and that as a layman he took "all prudent steps within his limited power" to protect his interests and relied on the expertise of his lawyer. Plaintiff requests that this court use its supervisory powers to protect plaintiff and others in his position "against surreptitiously implied waiver." In Count III, plaintiff claims and seeks a declaratory judgment to the effect that 28 C.F.R. § 9.4, the regulation that establishes procedures for claimants to petition for remission or mitigation but provides that a hearing is not available, fails to conform to the seizure provisions for violations of customs laws, 19 U.S.C. § 1618, and thereby derogates the statutes it purports to implement, 21 U.S.C. § 871, 881(d). These statutes make applicable to narcotics-related seizures the customs laws seizure provisions. Plaintiff alleges that in his case, without a hearing, officers of the defendant failed to ascertain the relevant facts, denying him due process of law. Count IV duplicates Counts I and III. In Count V, plaintiff alleges that the almost four-month interval between plaintiff's filing of his petition for remission and the notification of denial by the D.E.A. violated a requirement of the due process clause for immediate review of summary seizure proceedings. Plaintiff requests as relief on all counts the return of his car, and damages to cover the car's depreciation value, interest, plaintiff's loss of the use of the car, costs in trying to retrieve it, costs of suit and attorney's fees.


The threshold question to be considered in this or any suit against the United States is whether or not the defendant has waived its sovereign immunity. "It long as been established, of course, that the United States, as sovereign, `is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain that suit.'" United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 587-588, 61 S.Ct. 767, 770-71, 85 L.Ed. 1058 (1944)). Since Congress alone can waive the United States' sovereign immunity, see United States v. United States Fidelity Co., 309 U.S. 506, 513, 60 S.Ct. 653, 657, 84 L.Ed. 894 (1940); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 at 157-158 (1976), this court cannot take the government's failure in this case to contest jurisdiction as a waiver but must raise the immunity question sua sponte.

The parties erroneously assume that this court can entertain this suit under the Tucker Act. That Act provides in relevant part,

§ 1346. United States as defendant.

    (a) The district courts shall have original
  jurisdiction, concurrent with the United States
  Claims Court, of: . . .
  (2) Any . . . civil action or claim against the
  United States . . . not exceeding $10,000 in amount,
  founded either upon the Constitution, or any act of
  Congress, or any ...

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