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Seized Property Recovery, Corp. v. United States Customs and Border Protection

August 17, 2007


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Now pending before the Court are Defendant's Renewed Motion for Summary Judgment ("Def. Mot.") [36], Plaintiff's Renewed Opposition [39] and Cross-Motion for Summary Judgment [42] (collectively "Pl. Mot."), Defendant's Reply to Plaintiff's Opposition [41] and Opposition to Plaintiff's Cross-Motion for Summary Judgment [43] (collectively "Def. Reply"), and Plaintiff's Response to Defendant's Reply and Reply to Defendant's Opposition [44] (collectively "Pl. Reply").


I. United States Customs and Border Protection and Administrative Forfeiture

Defendant, United States Customs and Border Protection ("Defendant," "Customs" or "CBP"), is a unified border agency within the Department of Homeland Security. (Decl. of Richard F. Chovanec*fn2 ("Chovanec Decl.") ¶ 2.) It is a law enforcement agency "with full authority to assess penalties and liquidated damages, seize merchandise for violation of CBP laws or those of other federal agencies that are enforced by CBP, remit forfeitures, mitigate penalties, decide petitions, and cancel claims." (Id. ¶ 3 (citing, inter alia, Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135).)

When Customs seizes certain property valued under $500,000, it may forego judicial proceedings and proceed by administrative forfeiture. See 19 U.S.C. §§ 1607-1609 (2000). Before it may forfeit the property, however, Customs must give notice to any parties in interest and inform them of the applicable procedures for contesting the forfeiture. See 19 U.S.C. § 1607(a). Customs also must publish the notice for three successive weeks "in such a manner as the Secretary of [the Department of Homeland Security] may direct." Id.

The notice requirements set forth in 19 U.S.C. § 1607 are implemented by 19 C.F.R. § 162.45. Section 162.45 directs that, for seized property valued between $2,500 and $500,000, notice of forfeiture must be published "in a newspaper circulated at the Customs port and in the judicial district where the property was seized."*fn3 See 19 C.F.R. § 162.45(b). According to the regulation, the notice of forfeiture must, inter alia, (1) describe the property seized; (2) list the time, cause and place of seizure; and (3) set forth the procedures by which parties in interest may contest the forfeiture. See 19 C.F.R. § 162.45(a). The regulations do not require inclusion of the name and address of the person to whom the seized property belongs or is consigned, unless the property was seized "under the navigation laws." See id.

II. Seized Property Recovery Corporation and FOIA Requests

Plaintiff Seized Property Recovery Corporation ("Plaintiff" or "SPRC") is a Florida corporation (Am. Compl. [12] ¶ 4) whose business includes "representing corporations and individuals on issues pending with Customs" (see Renewed Decl. of Peter S. Herrick*fn4 ("Herrick Decl.") ¶ 13). In 2004 and 2005, Plaintiff filed numerous Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552 et seq., requests with different Customs Ports in the United States. (Id. ¶ 1.) The requests sought names and addresses of certain individuals and commercial entities from whom Customs had seized property which it intended to forfeit. (Id. ¶ 2.)Plaintiff had learned of these seizures and planned forfeitures through notices published in local newspapers. (See Pl. Mot at 2.) (In accordance with agency regulations, the names and addresses of the interested parties had not been included in the published notices. (See 19 C.F.R. § 162.45(a).)) Plaintiff wanted to obtain the names and addresses so that it could contact the interested parties and offer them its services in seeking remission of their property. (See Pl. Mot. at 2, 8, 13-14; see also Reply at 23.)

The Customs's responses to Plaintiff's requests varied initially. In many instances, Customs Ports withheld the requested names and addresses under FOIA Exemptions 7(A) or 7(C). (See Letters from Long Beach Customs Port to Herrick, attached as Exs. 4 & 7 to Chovanec Decl.) In other cases, the Ports released names but withheld addresses under FOIA Exemptions 3 or 7(C). (See Letters from San Francisco and Newark Customs Ports to Herrick, attached as Exs. 9 & 13 to Chovanec Decl.) Still in other instances, the names and addresses were released following an appeal by Plaintiff to Customs's Disclosure Law Branch.*fn5 (See Letters from Disclosure Law Branch to Herrick, attached as Exs. A-D to Herrick Decl.)

Customs also wavered in its position on whether to include names and addresses of interested parties in the published forfeiture notices. On March 17, 2005 the Customs Disclosure Law Branch informed Plaintiff that it was "instructing the [Fines, Penalties & Forfeiture] Officer at the Miami Service Port that in the future, it should include [names and addresses] in its public notices of seizure and sale as it is a regulatory requirement."*fn6 (Letter from Disclosure Law Branch to Herrick of 3/17/05, attached as Ex. A to Herrick Decl.) The Disclosure Law Branch reiterated this position in another letter to Plaintiff regarding the Port of Long Beach, California. (Letter from Disclosure Law Branch to Herrick of 3/17/05, attached as Ex. A to Herrick Decl.) Subsequent to the issuance of these letters, the Ports of Miami and Long Beach began including names and addresses in their published notices. (See Herrick Decl. ¶ 8; Excerpt from Los Angeles Daily Journal, attached as Ex. E to Herrick Decl.) Once these Customs Ports began publishing names and addresses of interested parties, Plaintiff ceased requesting names and addresses from the agency. (Herrick Decl. ¶ 14; see also, e.g., Letter from Herrick to Disclosure Law Branch of 4/19/05, attached as Ex. N to Herrick Decl. (withdrawing all pending FOIA appeals relating to the Port of Los Angeles/Long Beach after the Port began publishing names and addresses of interested parties).)

On or shortly after May 5, 2005, however, names and addresses disappeared from these Ports' published notices. (Herrick Decl. ¶ 9.) Plaintiff later learned that on May 5, 2005, Customs's Acting Executive Director, Trade Compliance and Facilitation, had directed the Ports to cease publishing the requested names and addresses unless the property at issue had been seized pursuant to the navigation laws, i.e., Title 46 of the United States Code. (Id. ¶ 9; Memorandum from Acting Exec. Dir. to Field Operations Directors of 5/5/05, attached as Ex. F to Herrick Decl.) As a result, Plaintiff resumed its FOIA requests for names and addresses. (Herrick Decl. ¶ 9.)

Plaintiff filed its original Complaint in this action on August 3, 2005 seeking review of several Customs decisions denying FOIA requests for names and/or addresses of individuals and commercial entities from whom property had been seized. (See Compl. ¶¶ 21-34.) Plaintiff filed an Amended Complaint on October 14, 2005 seeking review of at least 19 additional FOIA denials by Customs. (See Am. Compl. ¶¶ 35-107.) Plaintiff also seeks a declaratory judgment, under 28 U.S.C. §2201, "that Customs must include the names and addresses of persons from whom it seized property" in its forfeiture publication notices, pursuant to 19 U.S.C. § 1607. (See id. ¶ 2; see also id. ¶¶ 108-09.)

Both sides have filed cross motions for summary judgment, which are now ripe for decision.


Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party points to facts showing that there is an absence of evidence supporting the nonmoving party's case, the nonmoving party may not rest on mere allegations, but must point to specific facts in the record showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere scintilla of evidence in support of [the non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving] party." Id. at 252. In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all inferences are to be drawn in his favor." Id. at 255.


I. Plaintiff's Claims under the Freedom of ...

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