United States v. One 1970 Buick Riviera Bearing Serial No. 494870h910774, and National American Bank of New Orleans, Claimant-Appellant , 463 F.2d 1168 ( 1972 )

GODBOLD, Circuit Judge.

This appeal is from a proceeding brought by the United States pursuant to 49 U.S.C.A. § 782 to enforce forfeiture of an automobile used to transport heroin in violation of 49 U.S.C.A. § 781.¹ The National Bank of New Orleans intervened in the forfeiture action as holder of a chattel mortgage and vendor’s lien on the car, given as security for a loan made to the owner, Mrs. Myrtle Brooks, whose husband had used the ear to transport heroin. The Bank alleged that it was innocent of any wrongdoing, that it had duly applied to the Attorney General, under 19 U.S.C.A. § 1618, for remission and mitigation of the forfeiture to the extent of its interest in the car, and that the Attorney General had denied its request. The Bank urged that the Attorney General’s decision was reviewable by the District Court and that failure to grant remission would violate the due process and just compensation provisions of the Fifth Amendment. The District Court held that the Attorney General’s denial of the Bank’s claim for remission was unreviewable and found the Bank’s constitutional arguments to be without merit. The Bank appeals and we affirm.

The question of our authority to review the Attorney General’s denial of the request for remission of the forfeiture is controlled by the long-standing, judge-made rule that the Attorney General has unreviewable discretion over petitions under 19 U.S.C.A. § 1618.² United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964); United States v. Kemp, 186 F.2d 808 (10th Cir. 1951); United States v. Gramling, 180 F.2d 498 (5th Cir. 1950); United States v. One 1957 Buick Roadmaster, 167 F.Supp. 597 (E.D.Mich.1958). See also General Finance Co. of Louisiana v. United States, 45 F.2d 380 (5th Cir. 1930) (denying review of an official adverse decision of a mitigation petition under the Tariff Act of 1922, 42 Stat. 987, 19 U.S.C.A. § 532, the pertinent part of which was couched in language identical to that now in 19 U.S.C.A. § 1618); United States ex rel. Walter E. Heller & Co. v. Mellon, 59 U. S.App.D.C. 296, 40 F.2d 808 (D.C. Cir. 1930) (“mandamus will not lie to control the discretionary action of the Secretary” under the Tariff Act of 1922, 42 Stat. 987, 19 U.S.C.A. § 532).

Judicial control of the Attorney General’s remission and mitigation function has been exercised only when administrative officials have refused to entertain a mitigation claim on the erroneous belief that they had no statutory authority to do so, Cotonificio Bustese, S. A. v. Morgenthau, 74 U.S.App.D.C. 13, 121 F.2d 884 (1941), and the extent of judicial control has been merely to require the officials to exercise jurisdiction over the claim, not to review the official decision of the merits.³ Since the Bank does not claim that the Attorney General failed to exercise his discretion, we may not inquire further into the Attorney General’s decision.⁴

The Bank’s due process and just compensation arguments are without merit. Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354 (1926); Goldsmith, Jr.-Grant Co. v. U. S., 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921); Associates Investment Co. v. U. S., 220 F.2d 885 (5th Cir. 1955).

The judgment of the District Court is affirmed.

1 . Jurisdiction over the § 782 forfeiture proceeding was conferred by 28 U.S.C.A. § 1355.

2 . That statute provides :

§ 1618. Remission or mitigation of penalties

“Whenever any person interested in any vessel, vehicle, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws or under the navigation laws, before the sale of such vessel, vehicle, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify tlie remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto.

In order to enable him to ascertain the facts, the Secretary of the Treasury may

issue a commission to any customs agent, collector, judge of the United States Customs Court, or United States commissioner, to take testimony upon such petition: Provided, That nothing in this section shall be construed to deprive any person of an 'award of compensation made before the filing of such petition.”

By Executive Order No. 6166, (June 10, 1933) the Secretary’s authority was transferred to the Attorney General in cases in which judicial proceedings are instituted. Eor simplicity, however, we refer to official action under this statute as being that of the Attorney General, even though some of the cases cited in text involve the Secretary.

3 . A case analogous to Bustese is U. S. v. Edwards, 368 F.2d 722 (4th Cir. 1966), where the court assumed “the general validity of the proposition” that the denial of remission was unreviewable but remanded the case for development of the record, which contained facts tending to show a deliberate official policy of denying claims without any consideration — in other words, a refusal to exercise the discretion mandated by statute.

4 . Although we recognize that agency action is unreviewable only in the exceptional case, see generally Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136, 149-150 (1971) ; Abbott Laboratories v. Gardner, 387 U.S. 136, 139-142, 87 S.Ct. 1507, 18 L.Ed.2d 681, 686-689 (1967), we do not write upon a clean slate. We find no instance where the Attorney General’s discretion was subjected to judicial review ; the full weight of authority lies on the other side.

The only feature that differentiates the Bank’s claim from ones that have been made and rejected before is the use of an alternative source of subject matter jurisdiction, the Tucker Act, 28 U.S.C.A. § 1346(a) (2), as a vehicle to achieve review of the Attorney General’s decision. But even presuming that the Tucker Act’s jurisdictional requirements are met, the answer on the merits of the Bank’s claim for review under that jurisdictional head would be the same. See Heikkila v. Barber, 345 U.S. 229, 237, 73 S.Ct. 603, 97 L.Ed. 972, 978 (1953), (absence of authority to review under the Court’s general equity powers follows “a fortiori” from absence of authority to review under 5 U.S.C.A. § 701).