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Plumhof v. U.S. Customs and Border Patrol

United States District Court, Ninth Circuit

May 24, 2013




There are three motions currently before the Court, each of which relate to the forfeiture of Plaintiff Karen Plumhof's ("Plaintiff") 1999 Chevrolet Malibu ("the Vehicle").[1] On March 14, 2013, Plaintiff filed the first of the pending motions seeking the release and return of the Vehicle. (Doc. No. 9.) On March 27, 2012, Defendant United States Customs and Border Protection ("CBP") filed the second of the pending motions requesting dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. Nos. 14, 17.) This motion also responded to Plaintiff's motion for release and return of the Vehicle, arguing Plaintiff's motion should be denied as moot because the Vehicle had already been sold. (Doc. No. 14.) On April 17, 2013, Plaintiff filed the last of the pending motions in response to CBP's motion to dismiss, seeking restitution in lieu of wrongfully forfeited property. (Doc. No. 20.) Plaintiff's final motion also seeks to amend/vacate her initial motion for return of the Vehicle. ( Id. ) Pursuant to Civil Local Rule 7.1.d.1, the Court finds the motions suitable for determination on the papers and without oral argument. Accordingly, the motion hearing set for June 6, 2013, is hereby vacated. For the reasons set forth below, Plaintiff's motion for release of property is DENIED AS MOOT, (Doc. No. 9), Defendant's motion to dismiss the complaint pursuant to Rule 12(b)(1) is GRANTED, (Doc. No. 14), and Plaintiff's motion for restitution in lieu of wrongfully forfeited property is DENIED, (Doc. No. 20). The Clerk of Court is instructed to transmit a copy of this order to Plaintiff and close the case.


I. Factual Background

This action concerns the forfeiture of Plaintiff's Vehicle by CBP Agents on April 2, 2012.[2] On April 2, 2012, CBP Agents patrolling the Split Mountain area near Westmorland, California observed a vehicle come to a stop on the side of the road.[3] (Doc. No. 14 at 1:20-23.) The CBP Agents then observed four individuals emerge from the bushes and enter the vehicle. ( Id . at 1:23-24.) The vehicle then continued westbound along the same route, at which point the CBP Agents performed a vehicle stop and questioned all five of the vehicle's occupants. ( Id . at 1:24-25.) All five occupants admitted to being in the United States illegally, including the driver, Lois Margaret Wesolaski. ( Id. at 1:25-26.) Based on this information, the CBP Agents at the scene impounded the Vehicle pursuant to 8 U.S.C. ยง 1324(a) (bring in and harboring certain aliens). ( Id . at 1:27-2:2, 3:7-8.)

On April 19, 2012, the Asset Forfeiture Office ("AFO") of the El Centro Border Patrol Sector ("El Centro") mailed a seizure notice ("Seizure Notice") to Plaintiff via certified mail. (Doc. No. 17 at 1-5.) The Seizure Notice identified the vehicle seized, the events leading up to the seizure, and the legal justification for the seizure. ( Id .) The Seizure Notice was received by Plaintiff on April 20, 2012.[4] ( Id . at 6.) Attached to the Seizure Notice was a separate form detailing the legal options available to Plaintiff and Plaintiff's ability to proceed administratively, by filing a petition with CBP, or judicially, by filing a claim with CBP requesting that CBP refer the case to the U.S. Attorney ("CAFRA Election of Proceedings Form"). The CAFRA Election of Proceedings Form directed Plaintiff to check one of the following choices:

1. [ ] I REQUEST THAT CBP CONSIDER MY PETITION OR OFFER ADMINISTRATIVELY BEFORE FORFEITURE PROCEEDINGS ARE INITIATED. My petition or offer is attached. By making this request, I understand that I can request, in writing, that my case be referred for judicial forfeiture proceedings at any time prior to the completion of the administrative forfeiture proceedings or as set forth in the notice of seizure. If I choose to wait for an administrative decision on my offer or petition, my deadline for filing a claim as required by 18 U.S.C. 983(a)(2)(B) is 30 days from the date of the petition decision , or, if I choose to file a supplemental petition, my deadline for filing a claim as required by 18 U.S.C. 983(a)(2)(8) is 30 days from the date of the supplemental petition. If I file a complete claim and request for judicial proceedings (see option 3, below), CBP consideration of my offer or petition will stop and the case will be sent for judicial forfeiture proceedings.
2. [ ] I ABANDON ANY CLAIM OR INTEREST I MAY HAVE IN THE PROPERTY. I understand that no additional notice about future proceedings' concerning the property will be provided to me.
3. [ ] I AM FILING A CLAIM AND REQUESTING THAT CBP REFER THE CASE FOR COURT ACTION. Please send the case to the U.S. Attorney for court action. I have fully completed, signed and attached a SEIZED ASSET CLAIM FORM. I understand that if I have not fully completed this form, or otherwise made a proper claim and request for judicial forfeiture pursuant to 18 U.S.C. 983(a)(2)(C), CBP will treat my submission as a petition for relief under option I, described above.

(Doc. No. 17 at 5) (emphasis added).

On May 9, 2012, the El Centro AFO received a petition from Plaintiff seeking a return of the Vehicle ("Petition") and an election to seek administrative relief (option one). (Doc. No. 14 at 3:11-12; Doc. No. 17 at 7-13.) The Petition argued that the Vehicle should be returned to Plaintiff because she was not operating the Vehicle at the time the Vehicle was seized, she had no knowledge that the Vehicle was ever gone from her premises, and no violation warranting forfeiture had occurred because no charges were ever brought against the driver of the Vehicle. (Doc. No. 14 at 3:12-14; Doc. No. 17 at 8.)

On July 3, 2012, after reviewing the merits of Plaintiff's Petition, the El Centro AFO mailed a decision letter to Plaintiff granting the petition upon specified conditions: (1) payment of $2, 000.00 (plus any additional costs incurred for towing and storage); and (2) execution of a hold harmless agreement ("the Decision Letter"). (Doc. No. 14 at 3:15-17; Doc. No. 17 at 14-18.) The Decision Letter also notified Plaintiff that failure to accept the decision within twenty (20) days, and all the conditions stated therein, would result in the sale of the Vehicle at auction. (Doc. No. 14 at 3:2-22; Doc. No. 17 at 15.) The Decision Letter further informed Plaintiff that she had ten (10) days following receipt of the Decision Letter to request CBP to reconsider its decision. (Doc. No. 14 at 3:22-23.)

On or about July 10, 2012, the sealed envelope containing the Decision Letter was returned to El Centro AFO with the following handwritten words, "A unk did not know this person." (Doc. No. 14 at 4:1-3.) On August 15, 2012, Claudia Olmos ("Olmos"), a forfeiture support assistant at the El Centro AFO, spoke with Plaintiff and informed her that the sealed envelope containing the Decision Letter had been returned to El Centro AFO with the above quoted language. ( Id . at 4:4-6.) After confirming Plaintiff's address, the Decision Letter was resent to Plaintiff. ( Id . at 4:7-8.) Plaintiff received the Decision Letter on August 16, 2012. ( Id. at 4:9-11.) On August 22, 2012, Plaintiff sought reconsideration of the El Centro AFO's decision ("Reconsideration Letter"). (Doc. No. 14 at 4:12-13; Doc. No. 17.) The Reconsideration Letter was sent to the Rio Grande Valley Border Patrol Sector Asset Forfeiture Office ("RGV Office") in accordance with CBP/OBP procedures.[5] (Doc. No. 14 at 4:13-16.) On September 17, 2012, the RGV Office issued a decision concerning Plaintiff's request for reconsideration ("Reconsideration Decision"). (Doc. No. 14 at 4:17-18; Doc. No. 17 at 26-27.) The Reconsideration Decision denied Plaintiff's request finding Plaintiff did not provide any new or unconsidered evidence demonstrating that the original decision was erroneous. ( Id . at 4:18-21; Doc. No. 17 at 26-27.)

On September 24, 2012, the El Centro AFO received a copy of the Reconsideration Decision issued by the RGV Office. (Doc. No. 14 at 4:25-26.) Because the Reconsideration Decision was dated, signed, and addressed to Plaintiff, and had no instructions for El Centro AFO to deliver the Reconsideration Decision to Plaintiff, El Centro AFO was under the belief that the RGV Office had already mailed the Reconsideration Decision to Plaintiff. ( Id . at 4:26-5:1.) However, on or about January 25, 2013, Albert Carlos ("Carlos"), the supervisor at EL Centro AFO, informed David ...

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