United States District Court, N.D. Illinois, Eastern Division
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.
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 the filing of the instant action, forfeited the Currency and terminated the administrative process. The Government moves to dismiss the instant action.
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.
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. § 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, 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 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 ...