John E. Wiren v. Donald Eide, as District Director of the Bureau of Customs

*767 KILKENNY, Circuit Judge

(dissenting):

TUCKER ACT CLAIM

It is settled that the Tucker Act authorizes a judgment for money damages only and if a complaint intermingles a claim for a money judgment with the demand for equitable relief, it is beyond the pale of the Act. Richardson v. Morris, 409 U.S. 464 , 93 S.Ct. 629 , 34 L.Ed.2d 647 (1973). The reason is that the jurisdiction of the district court is concurrent with that of the Court of Claims and the Court of Claims has no power to grant equitable relief. Glidden Co. v. Zdanok, 370 U.S. 530 , 82 S.Ct. 1459 , 8 L.Ed.2d 571 (1962). There, Justice Harlan in speaking to the limited jurisdiction of the Court of Claims — concurrent with the district court under the Act — made it clear that from the very beginning, the Court of Claims had jurisdiction only to award damages, not specific relief. Id. at 557, 82 S.Ct. 1459 . With reference to the jurisdiction of the respective courts, we quote from Richardson v. Morris, supra.

“The Tucker Act plainly gives district courts jurisdiction over claims against the United States for money damages of less than $10,000 that are ‘founded . upon the Constitution.’ But the Act has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States. See United States v. Jones, 131 U.S. 1 , [ 9 S.Ct. 669 , 33 L.Ed. 90 ] (1889). The reason for the distinction flows from the fact that the Court of Claims has no power to grant equitable relief, see Glidden Co. v. Zdanok, 370 U.S. 530, 557 , [ 82 S.Ct. 1459, 1476 , 8 L.Ed.2d 671 ] (1962), . . . and the jurisdiction of the district courts under the Act was expressly made ‘concurrent with the Court of Claims.’ ” Id. 409 U.S. at 465-466 , 93 S.Ct. at 630 .

Another Supreme Court case speaking to the limited jurisdiction of the Court of Claims, where the demand for relief was for other than money damages, is United States v. King, 395 U.S. 1 , 89 S.Ct. 1501 , 23 L.Ed.2d 52 (1969). There the Court in addressing itself to the claim for relief other than money damages said: “. . . This [the claim] is essentially equitable relief of a kind that the Court of Claims has held throughout its history, up to the time this present case was decided, that it does not have the power to grant.” Id. at 3 , 89 S.Ct. at 1502 .

A recent expression of the Supreme Court on the subject is Lee v. Thornton, 420 U.S. 139 , 95 S.Ct. 853 , 43 L.Ed.2d 85 (1975), rev’g 370 F.Supp. 312 (D.Vt.1974), in which the Supreme Court, in substance, held that the Tucker Act is not a proper jurisdictional vehicle in which to travel to injunctive or declaratory relief under a challenge to the constitutionality of various provisions of the Customs Laws, including § 1608. 1 Here, in addition to a money judgment, the appellant seeks injunctive relief against the enforcement of the forfeiture statute, a declaratory judgment that he is entitled to proceed under the Administrative Procedure Act, and a writ of mandamus directing the officials to return the automobile.

A more recent Supreme Court case, United States v. Testan, 424 U.S. 392 , 96 S.Ct. 948 , 47 L.Ed.2d 114 (1976), is closely in point. There, the claimant argued that “. . . the Tucker Act fundamentally waives sovereign immunity with respect to any claim invoking a constitutional provision or a federal statute or regulation, and makes available any and all generally accepted and important forms of redress, including money damages. It is said that the Government has confused two very different issues, namely, whether there has been a waiver of sovereignty and whether a substantive right has been created, and it is claimed that where there has been a violation of a substantive right, the Tucker Act waives sovereign immunity as to all measures necessary to redress that violation.” [Page 400, 96 S.Ct. page 954]. [Emphasis supplied].

*768 In answering this argument, the Supreme Court stressed that the Tucker Act was merely jurisdictional and that the asserted entitlement to money damages depended upon whether any federal statute “. ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” [Page 955, 96 S.Ct. page 955.] The Court went on to comment: “We are not ready to tamper with these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy. In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity, and we regard as unsound the amici’s argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available to redress their violation.” [Page 954, 96 S.Ct. page 954.]

It is clear to me that the Congress never intended that a person could create the right for money damages under the Tucker Act by challenging the constitutionality of the very legislation which forms the basis for his claim.

ADMINISTRATIVE PROCEDURE ACT

The majority holds that the district court had jurisdiction to proceed under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701 — 706. The review section of the Act, 5 U.S.C. § 701 (a), specifically exempts: (1) statutes which preclude judicial reviews, and (2) agency action which is committed to agency discretion by law. The exercise of discretion in denying a petition for remission or forfeiture is not reviewable. United States v. One 1961 Cadillac, 337 F.2d 730, 732 (C.A.6, 1964). Additionally, the Administrative Procedure Act is remedial in character and does not, in itself, create jurisdiction. Subject matter jurisdiction is essential to application of the Act. Zimmerman v. United States, 422 F.2d 326 (C.A.3, 1970), cert. denied 399 U.S. 911 , 90 S.Ct. 2200 , 26 L.Ed.2d 565 . 2

True enough, the Supreme Court has not spoken definitively on the subject. In one instance, Rusk v. Cort, 369 U.S. 367 , 82 S.Ct. 787 , 7 L.Ed.2d 809 (1962), in speaking of “general grants of jurisdiction”. Id. at 380 , 82 S.Ct. at 795, it would seem that Justice Brennan was speaking of something other than pure jurisdiction when he mentioned the Declaratory Judgments Act, in the same breath as the Administrative Procedure Act. It is well settled that the Declaratory Judgments Act does not, in itself, confer jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 , 70 S. Ct. 876 , 94 L.Ed. 1194 (1950). To the same effect, see Lee v. Thornton, supra.

Moreover, since under the provisions of 19 U.S.C. § 1618 absolute discretion is lodged in the agency, judicial review is not available to appellant under 5 U.S.C. § 701 (a). Action on Safety & Health v. F. T. C., 162 U.S.App.D.C. 215 , 498 F.2d 757, 760-761 (C.A.D.C.1974).

The Ninth Circuit cases cited by the majority are not in point. The jurisdiction found in each of those cases was by way of review from action taken in an agency. Here, the appellant has refused to follow the procedure outlined in either 19 U.S.C. §§ 1608 or 1618 and the Secretary has taken no action under those statutes. [Emphasis supplied]. The appellant, in lieu of following the provisions of the statute, has challenged the constitutionality of 19 U.S.C. § 1608 , the latter being an integral part of the procedure outlined by the Congress to be followed by a person who desires a remission or a mitigation of the penalties provided for under § 1618.

For that matter, appellant does not claim that he has a right to a review of any action taken by the Secretary. It is his claim that the Administrative Procedure Act is an in *769 dependent grant of subject matter jurisdiction under which an action can be prosecuted irrespective of action on the part of an agency. I find no authority to support the majority’s position on this jurisdictional claim.

Cases such as Brandt v. Hickel, 427 F.2d 53, 55 (C.A.9, 1970), and Coleman v. United States, 363 F.2d 190 (C.A.9, 1966), rev’d on other grounds 390 U.S. 599 , 88 S.Ct. 1327 , 20 L.Ed.2d 170 (1968), holding that the Administrative Procedure Act does not permit a trial de novo is in support of my position that the Act does not create an independent ground of jurisdiction. Otherwise, the trial would be de novo, rather than by review. As late as United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432 (C.A.9, 1971), speaking to the subject, we said: “ ‘. . . [T]he Administrative Procedure Act does not permit a trial de novo of administrative decisions.’ ” It is fundamental that if a court is not entitled to receive evidence, it is not a court of original jurisdiction.

Under the provisions of the remission statute, 19 U.S.C. § 1618 , absolute discretion is vested in the Secretary of the Treasury. Because appellant did not attempt to file a bond under § 1608, he is in no position to argue that he is entitled to an administrative review of non-existent agency action under that statute. He took no action whatsoever under § 1618.

CONSTITUTIONAL CHALLENGE

Again, I disagree with my brethren. Here, we are concerned with fast moving vehicles crossing out international boundary lines. We cannot close our eyes to the thousands of customs violations committed annually on both our Mexican and Canadian borders. The lodging of some discretion in the Customs Officials as to the seizure of the vehicle and the amount, if any, of the bond is absolutely essential to proper administration. The general attitude and conduct of one driver might be entirely different from that of another and this should call into play a wide discretion on the part of the official in charge.

The majority completely overlooks the known fact that the overland transportation of contraband into the United States is by the use of “junkies” or worn-out motor vehicles seldom of a value sufficient to justify the expense of a formal condemnation proceeding. To avoid this fact, the majority say: “However, ,we cannot believe that Congress either intended to, or may consistently with the Constitution, make enforcement of the forfeiture laws, the primary contemporary justification of which is punishment and deterrence . . . .” Id. at 763'. In making this statement, the majority neglects to comment on the recognized distinction between the seizure of contraband and vehicles used in its movement and the seizure of other property subject to ownership. The legislation does not, as urged by the majority, deny the Fifth Amendment rights of the “poor.” If the “poor” elect to violate our Customs Laws and in doing so use valueless types of vehicles, the values of which will not reimburse the government for its formal condemnation expenses, they should be compelled to comply with existing law, the same as others. The poor and the rich are governed by the same Constitution.

I believed our factual background is governed by United States v. Kras, 409 U.S. 434 , 93 S.Ct. 631 , 34 L.Ed.2d 626 (1973), and Ortwein v. Schwab, 410 U.S. 656 , 93 S.Ct. 1172 , 35 L.Ed.2d 572 (1973), cases which severely limited the overall effect of Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), the ease upon which the majority relies.

In Kras , it is emphasized that the marital relationship and the associated interests that surrounded the establishment and dissolution of the marriage in Boddie had no connection whatsoever with the area of economics and social welfare involved in special proceedings such as in bankruptcy. That being so, the Court reasoned that the applicable standard in measuring the propriety of the Congressional classification, is that of rational justification. Beyond question, the enforcement of our Customs Laws should be classified in the area of economics *770 and our general social welfare, rather than in the donnybrook of the Boddie marital relationship where one party was desperately attempting to obtain a divorce from the other.

Ortwein v. Schwab, supra, is even more closely in point. There, the Supreme Court recognized that the pending litigation involving welfare payments was “. in the area of economics and social welfare.” Id. 410 U.S. at 660, 93 S.Ct. at 1175, and that since no suspect classification, such as race, nationality or alienage was present, that the applicable standard was that of rational justification as applied in Kras . In Kras , as in Ortwein, the rational justification for the payment of fees was that it would produce revenue to assist in offsetting the expenses of administering the system. Clearly, the purpose of requiring the bond under the challenged legislation in the case before us was to make certain there would be a fund available to assist in the payment of the expenses of seizure of the property and attempted confiscation. Surely, it is not beyond our power to judicially notice that a forfeiture proceeding, if resisted by a claimant, could amount to well in excess of $2,500.00. Certainly, there is no suspect classification in the present case.

I would hold that the legislation under attack is an integral part of the laws protecting our borders against smuggling and has a constitutionally rational basis.

CONCLUSION

I would affirm the judgment of the lower court.

. Although 19 U.S.C. § 1608 is not mentioned in the Supreme Court opinion, it is clear from the district court decision that § 1608 was also under constitutional attack.

. Other cases to the same effect are Richardson v. United States, 465 F.2d 844, 849 (C.A.3, 1972), cert. denied 410 U.S. 995 , 93 S.Ct. 1420 , 35 L.Ed.2d 688 (1973); Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (C.A.3, 1974); Pan Ameri can World Airways, Inc. v. C. A. B., 129 U.S. App.D.C. 159, 392 F.2d 483 , 494 (C.A. 1968); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (C.A.8, 1967).