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July 16, 1992

Willie L. JONES, Plaintiff,
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Claude BYRUM, Stephen A. WOOD, and one additional unknown officer, Defendants.

The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.



 On February 27, 1991, three police officers seized $ 9000.00 in United States currency from Willie L. Jones at the Nashville International Airport. The currency was subsequently the subject of summary forfeiture proceedings by the Drug Enforcement Administration (DEA) of the United States Department of Justice. In this action, Mr. Jones seeks the return of his currency and declaratory relief against the officers -- Claude Byrum and Stephen Wood of the Metropolitan Nashville Police Department and Taran Perry of the Metropolitan Airport Authority -- and the DEA. For the purposes of the defendants' motions for summary judgment, we accept the plaintiff's allegations as true.

 The plaintiff operates Jones Landscaping in Nashville, Tennessee, and occasionally purchases plants for use in his business from companies located out of state. On February 27, 1991, he decided to travel to Houston, Texas, and asked a coworker to make the airline reservations. In accordance with the plaintiff's instructions, and after being told that the plaintiff could use the full-fare ticket on any flight with space available, the coworker booked as early a return flight as possible.

 Upon arriving at the Nashville airport, the plaintiff approached the American Airlines ticket counter, and tendered cash for his ticket. The ticket price was $ 267. The ticket agent told the plaintiff that she did not know how to handle a cash transaction, and stepped into an adjacent office momentarily. At about this time, defendant officer Byrum received an anonymous phone tip that the plaintiff had paid for his ticket with cash, and had been acting in a "suspicious" manner.

 Officers Byrum and Wood approached the security checkpoint and observed the plaintiff enter the checkpoint. The checkpoint operator informed the officers that the plaintiff was carrying in his overnight bag a piece of paper on which numbers were written. Defendant Byrum also observed a large bulge on the plaintiff's person in the area of his left waistband.

 After passing through the security checkpoint, the plaintiff entered the seating area of gate C-8, and waited for his plane. The officers approached the plaintiff, informed him that they were officers, and that they suspected him of carrying drugs or drug-related currency. The officers asked the plaintiff to accompany them to a more private location, and they led him to an unused jetway entrance.

 Officer Perry joined the three men at the jetway, and the officers asked the plaintiff for identification. He produced his driver's license and the airline tickets (issued in his own name), which indicated that they were purchased with cash. One officer asked if he could search the plaintiff's overnight bag. The plaintiff consented, and the officer searched the bag. Officer Perry then began a pat-down search of the plaintiff, and discovered $ 9000.00 in currency in a money pouch located beneath the plaintiff's waistband. The parties dispute the scope of the plaintiff's consent to these searches.

 Upon discovering the currency, the officers led the plaintiff to the airport office of the Drug Interdiction Unit (DIU). The DIU is an airport-based joint venture among the DEA, the Airport Authority, and the Metropolitan Police Department. While in the office, the officers questioned the plaintiff. When asked why he was travelling with such a large amount of cash, the plaintiff responded that he was going to Houston to look for plant stock for his landscaping business. When the officers did not believe his explanation, the plaintiff stopped answering their questions.

 The defendants contend that while at the office, a trained police dog "alerted" on the currency, indicating that it had been exposed to narcotics. The officers informed the plaintiff that they were confiscating his currency, and they returned his airline ticket. Defendant Byrum also gave the plaintiff a receipt for an "undetermined amount of U.S. currency." The plaintiff left the office, but returned a short time later, and asked defendant Byrum for a more specific receipt. He refused to count the currency, and the plaintiff left.

 The DEA commenced summary forfeiture proceedings against the currency by publishing notice in USA Today, and by mailing notice to the plaintiff at his home. After twice refusing to grant the plaintiff's request for a waiver of the bond requirement, the DEA declared the currency forfeit. The facts surrounding the denial of the waiver application are discussed in more detail below.

 The plaintiff then brought this action, and in his Amended Complaint he seeks a declaratory judgment that the defendants' seizure of the currency was illegal, that the statutory and regulatory scheme for making bond waiver decisions is unconstitutional, and that the defendants be ordered to return his currency. He bases these claims upon the Administrative Procedure Act, 5 U.S.C. §§ 705-06 (1988), the Civil Rights Act, 42 U.S.C. § 1983, and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

 Presently before this Court is defendants' motion to dismiss and for summary judgment, in which they make the following arguments: First, that the DEA cannot be sued eo nomine, as plaintiff has done here; Second, that the defendant officers are entitled to qualified immunity for their actions; Third, that the defendant officers were not state actors, and hence cannot be liable under the Civil Rights Act, 42 U.S.C. § 1983; And fourth, that the plaintiff fails as a matter of law to establish a due process claim. The DEA also claims that its denial of the bond waiver application was not arbitrary.

 Each of these arguments are without merit, and the Court denies the defendants' motion to dismiss and for summary judgment. In addition, the Court holds that the DEA's bond waiver decision is subject to judicial review, and that in this case, the DEA's denial of the plaintiff's application was arbitrary, capricious, and an abuse of discretion.


 The standards governing the decision on a motion for summary judgment are well-established. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Upon meeting this burden, the burden shifts to the nonmoving party, which cannot rest on its pleadings, but must present some "specific facts showing that there is a genuine issue for trial." Id. at 324. A dispute about a material fact is "genuine" within the meaning of Fed. R. Civ. P. 56 only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Id. at 252. Of course, the court is to construe the evidence and all inferences to be drawn from it in the light most favorable to the nonmoving party. Id. at 255.


 The DEA contends that the plaintiff cannot sue the "United States Department of Justice -- Drug Enforcement Administration" eo nomine -- under that name. Citing Blackmar v. Guerre, 342 U.S. 512, 96 L. Ed. 534, 72 S. Ct. 410 (1952), for this proposition, the DEA argues that Congress has not waived sovereign immunity with regard to the DEA or the Department of Justice, the department to which the DEA belongs, and that the DEA should be dismissed as a party defendant.

 These arguments are without merit in a suit such as this, involving judicial review of administrative action under the Administrative Procedures Act, 5 U.S.C. Chapter 7 (1988). In its 1976 amendments to the APA, Congress specifically overruled the Blackmar case in the administrative context. The amendment to § 703 added the penultimate sentence to the current section, which reads:

. . . If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer.

 5 U.S.C. § 703 (1988). Federal courts have subsequently allowed suits against Federal agencies pursuant to the amended § 703. Ford v. Department of Housing and Urban Development, 450 F.Supp. 559 (N.D.Ill. 1978); Computerware, Inc. v. Knotts, 626 F.Supp. 956 (E.D.N.C. 1986). Significantly, the right to name a federal agency as a party defendant has been applied to the DEA in challenges to civil forfeiture actions. Sarit v. Drug Enforcement Administration, 759 F.Supp. 63, 69 (D.R.I. 1991).

 City of Whittier v. United States Department of Justice, 598 F.2d 561, 562 (9th Cir. 1979), on which the DEA relies, is inapposite to this case. City of Whittier involved a subrogated claim against the government under the Federal Tort Claims Act, not the judicial review of agency action under the APA. As such, § 703 of the APA was not triggered, and the eo nomine issue was not resolved by statutory mandate.

 Our interpretation of § 703 is commanded by the clear language of the statute, and the court need go no further in dispensing of this issue. Other sources demonstrate, however, that the government's eo nomine and sovereign immunity arguments are not only without merit, but are nigh frivolous. The legislative history of this amendment is unequivocal. The House Report on S.800 notes:

When an instrumentality of the United States is the real defendant, the plaintiff should have the option of naming as defendant the United States, the agency by its official title, appropriate officers, or any combination of them. The outcome of the case should not turn on the plaintiff's choice.

 Judicial Review -- Administrative Agency Actions, H.R. Rep. No. 94-1656, 94th Cong., 2d Sess. 18 (1976) (reprinted in 1976 U.S.C.C.A.N. 6138). The Senate Report contains an identical statement. Judicial Review of Agency Action, S. Rep. No. 94-996, 94th Cong., 2d Sess. 16-17 (1976).

 The legislative history also underscores that this amendment was remedial in nature, and was designed to prevent injustice because of minor defects in the pleadings. Senator Kennedy, speaking for S.800 on the Senate Floor, said:

Frequently a citizen sues an agency, naming the agency as defendant, only to be thrown out of court for failing to name the individual officer as defendant. If a statute of limitations has run, the aggrieved citizen is without further remedy. Whether the Government can be held accountable in the courts for improper conduct should not turn on the niceties of who is named in the pleading.

 122 Cong. Rec. 22011 (July 1, 1976). The House Report noted:

In the committee's view the ends of justice are not served when government attorneys advance highly technical rules in order to prevent a determination on the merits of what may be just claims.

 Id. at 18-19.

 The applicability of the APA to this case (discussed in greater detail below) also disposes of the government's claim that sovereign immunity has not been waived with respect to the DEA. The 1976 amendments to § 702 of the APA constitute a clear waiver of sovereign immunity where, as here, the relief sought is "other than money damages." 5 U.S.C. § 702. See Ghandi v. Police Dep't of City of Detroit, 747 F.2d 338, 343 (6th Cir. 1984). The plaintiff's demands in this case are equitable in nature (although the plaintiff will receive money if successful, he is seeking the return of the money he alleges was wrongfully taken from him), and he asserts that he ...

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