UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Juan Rodriguez

v. Civil No. 05-cv-325-JD

United States of America

O R D E R

Juan Rodriguez, proceeding pro se, brings an action seeking

the return of money that was administratively forfeited by the

Drug Enforcement Agency (“DEA”) in August of 2004. The

government moves to dismiss the action for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 

Rodriguez opposes the motion.

Background

Rodriguez was arrested on March 29, 2004, in Nashua, New

Hampshire, on a fugitive from justice warrant issued in

Massachusetts. The Nashua police seized $1905 in cash that was

found in the hotel room where Rodriguez had been staying. 

Counsel was appointed to represent Rodriguez on the charges

against him in Massachusetts. Rodriguez received a notice from

the Nashua Police Department that his money had been seized and

that it would be subject to forfeiture under New Hampshire law.

Rodriguez states that his counsel contacted the Nashua police

about the return of his money and that she was told the police

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would hold the money pending the outcome of his criminal case in

Massachusetts. 

On June 9, 2004, Rodriguez received a notice of seizure from

the DEA, listing the property seized as $1,905 in United States

currency. The seizure notice stated that Rodriguez could

petition for the return of his property through remission or

mitigation or contest the forfeiture of his property in federal

court. The notice further explained the process of requesting

remission or mitigation and, alternatively, the process for

contesting the forfeiture by filing a claim. The seizure notice

also stated that a petition for remission or mitigation must be

filed with the DEA’s forfeiture counsel within thirty days of the

day Rodriguez received the notice of seizure and that a claim

must be filed by July 8, 2004. 

Rodriguez states that he sent a letter to his counsel on

June 15, 2004, asking her to file a claim with the DEA and that

she told him she had filed a claim. Nevertheless, on June 23,

2004, Rodriguez also filed a “Petition for Return of Property.” 

The DEA represents that the petition was received on July 8,

2004. 

The DEA sent Rodriguez a letter on July 21, 2004, notifying

him that his petition for remission or mitigation had been

received and would be ruled on administratively by the DEA

office. The certified mail receipt indicates that the letter was

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received at the Worcester House of Corrections but was returned

to the DEA on July 27, 2004, because Rodriguez had been

transferred to MCI-Concord on July 22, 2004. Although Rodriguez

states that he never received the DEA’s letter, the record shows

that after the letter was returned, the DEA sent it to Rodriguez

at MCI-Concord, with a return receipt signed by “A Grella” on

September 8, 2004. 

The DEA also published newspaper notice of the forfeiture of

the money seized from Rodriguez’s hotel room, and no claims were

received in response. On August 4, 2004, the DEA entered a

declaration of forfeiture as to the money. The DEA also

continued to process Rodriguez’s petition. On September 20,

2004, the DEA received a letter from Rodriguez in which he

inquired about the status of his petition and indicated his

return address at Worcester House of Corrections. The DEA did

not respond to Rodriguez’s inquiry. On October 13, 2004, the DEA

sent Rodriguez a letter denying his petition and explaining the

process of requesting reconsideration of the denial. The letter

was addressed to Rodriguez at MCI-Concord, and the return receipt

indicates that the letter was received at MCI-Concord on behalf

of Rodriguez on November 1, 2004. Rodriguez states that on

November 1, 2004, he was being held at the Worcester House of

Corrections, which is the address he provided on his letter to

the DEA in September. Rodriguez also explains, however, that

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during October of 2004 he was held at the Bridgewater State

Hospital for observation. 

In August of 2004, Rodriguez sought help from the New

Hampshire Civil Liberties Union, which responded that he should

be aware of and should comply with all deadlines in the

forfeiture proceeding while the NHCLU reviewed his case. 

Rodriguez also wrote to the clerk of this court on November 7,

2004, inquiring about the status of his claim. In response,

Chief Deputy Clerk Lynch explained to him that the forfeiture

proceeding involving his money was a non-judicial forfeiture

action conducted by the DEA and that no complaint had been filed

in this court pertaining to that action. 

Rodriguez completed a “claim” for his money on April 28,

2005. The claim was received by the DEA on June 16, 2005. The

senior attorney in the asset forfeiture section of the DEA wrote

to Rodriguez on July 15, 2005. In the letter, the attorney

reviewed the history of the case and informed Rodriguez that the

case was closed. Rodriguez filed this action on October 5, 2005.

Discussion

The Civil Asset Forfeiture Reform Act, codified at 18 U.S.C.

§ 983, provides the process applicable to civil forfeitures of

certain property. United States v. One Parcel of Real Prop.

Known as 45 Claremont St., 395 F.3d 1, 3 (1st Cir. 2004). A

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forfeiture of property of a value less than $500,000 can be

completed administratively by a declaration, while contested

forfeiture proceedings, in which claims have been filed, are

referred to the United States Attorney’s Office. 18 U.S.C. §

983(a)(2); 19 U.S.C. § 1609. “District courts lack jurisdiction

to review the merits of [an administrative] forfeiture unless the

agency failed to follow statutory and constitutional due process

standards.” United States v. Robinson, 434 F.3d 357, 364 (5th

Cir. 2005); Mesa Valderrama v. United States, 417 F.3d 1189,

1194 (11th Cir. 2005). 

“An individual facing forfeiture risks being deprived of his

or her property and thus is entitled to notice and an opportunity

to be heard.” Nunley v. Dep’t of Justice, 425 F.3d 1132, 1135

(8th Cir. 2005) (citing Dusenbery v. United States, 534 U.S. 161,

167 (2002)). The narrow remedy provided to challenge a

nonjudicial forfeiture is provided in 18 U.S.C. § 983(e) as

follows:

 (1) Any person entitled to written notice in any

nonjudicial civil forfeiture proceeding under a civil

forfeiture statute who does not receive such notice may

file a motion to set aside a declaration of forfeiture

with respect to that person's interest in the property,

which motion shall be granted if-- 

 (A) the Government knew, or reasonably should have

known, of the moving party’s interest and failed to

take reasonable steps to provide such party with

notice; and 

 (B) the moving party did not know or have reason to

know of the seizure within sufficient time to file a

timely claim. 

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Id. at 1195. “Absent exceptional circumstances, written notice

of forfeiture by certified mail to the claimant’s residence

satisfies due process, even if the claimant does not receive

actual notice.” Lobzun v. United States, 422 F.3d 503, 507 (7th

Cir. 2005).

In this case, it is undisputed that Rodriguez received

written notice of the seizure of his money and the forfeiture

proceeding. The seizure notice also provided the options of

filing a petition for return of his property through remission or

mitigation and filing a claim to contest the forfeiture. 

Rodriguez responded to that notice by filing a “Petition for

Return of Property.” The DEA reviewed his petition as one

seeking remission or mitigation of the forfeiture and denied it. 

Rodriguez’s claim in this action is that the DEA mistakenly

treated his petition as seeking a return of his property through

remission or mitigation when he intended to file a claim

contesting the forfeiture. As such, Rodriguez does not dispute

that he received notice and an opportunity to be heard. Instead,

he argues that the DEA should have processed his petition as a

claim.

Rodriguez was represented by counsel appointed in his

criminal case during the time he responded to the DEA’s seizure

notice, and he represents that he sought her assistance in the

forfeiture matter. His response, “Petition for Return of

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Property,” closely follows the language used in the DEA’s notice

to describe a petition for remission or mitigation. Nothing in

the record presented suggests that the DEA’s decision to follow

the administrative process, as opposed to treating the petition

as a claim, “resulted from errors of procedure and form or the

government’s own misconduct.” Mesa Valderrama, 417 F.3d at 1196. 

Because Rodriguez received notice of the seizure and forfeiture

process and was given an opportunity to be heard, no further

remedy is available to him to contest the forfeiture. Therefore,

this court lacks jurisdiction to consider the matters Rodriguez

raises.

Conclusion

For the foregoing reasons, the government’s motion to

dismiss for lack of subject matter jurisdiction (document no. 20)

is granted. The clerk of court shall enter judgment accordingly

and close the case. 

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

March 29, 2006

cc: Juan Rodriguez, pro se

Jean B. Weld, Esquire

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