Brandon Pert v. United States

FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON MULFORD PERT, ) No. 11-16269
)
Plaintiff – Appellant, ) D.C. No. 3:10-cv-00739-LRH-RAM
)
v. ) MEMORANDUM*
)
UNITED STATES OF AMERICA, )
)
Defendant – Appellee. )
)
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 6, 2012
San Francisco, California
Before: FARRIS, FERNANDEZ, and BYBEE, Circuit Judges.
Brandon Mulford Pert appeals the district court’s dismissal of his complaint
in which he sought to attack the Drug Enforcement Administration’s (“DEA”)
forfeiture of money that he had in his automobile when he was stopped by the
police. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1) The DEA gave Pert, and his counsel, notice that administrative
forfeiture proceedings were underway. See 18 U.S.C. § 983(a)(1)(A)(i), (iv); 19
U.S.C. § 1607(a); 21 U.S.C. § 881(d). He was informed that he could either
petition the DEA for remission or mitigation,1 or file a claim with it,2 by a
designated date. If the former is filed, the administrative forfeiture proceedings go
forward;3 but if the latter is filed, judicial proceedings are invoked.4 Pert did file a
document with the DEA and we agree with the DEA and the district court that his
filing was a petition for remission. Among other things, the document specifically
asked for remission. When the DEA referred to it as a “Petition for Remission or
Mitigation,” Pert did not inform the agency that his filing was not in fact a petition,
but, rather, reasserted a demand for remission and cited remission regulations. Pert
could not obtain judicial review of the administrative forfeiture decision that
ensued. See Conservation Force v. Salazar, 646 F.3d 1240, 1242–43 (9th Cir.
2011).5 The district court did not err when it so decided. See Robinson v. United
1
See 19 U.S.C. § 1618.
2
See 18 U.S.C. § 983(a)(2).
3
See 19 U.S.C. §§ 1609, 1618; 28 C.F.R. §§ 9.3, 9.5.
4
See 18 U.S.C. § 983(a)(3)(A).
5
Had Pert failed to receive notice, he could have sought review. See 18
(continued...)
2
States, 586 F.3d 683, 685 (9th Cir. 2009); Dreier v. United States, 106 F.3d 844,
847 (9th Cir. 1997).
(2) Pert asserts that the time for filing a claim should have been equitably
tolled. We disagree. The doctrine of equitable tolling does apply in proper cases,6
but it does not avail Pert because he never did expressly change his demand to the
DEA for remission. In fact, as we have already noted, when informed of the
DEA’s position, he again demanded “immediate remission.”7
AFFIRMED.
5
(...continued)
U.S.C. § 983(e); Conservation Force, 646 F.3d at 1242. However, he did receive
notice.
6
See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96, 111 S. Ct. 453,
457–58, 112 L. Ed. 2d 435 (1990); William G. Tadlock Constr. v. U.S. Dep’t of
Def., 91 F.3d 1335, 1340–41 (9th Cir. 1996). The doctrine is limited to
exceptional or unusual cases, and requires parties to exercise diligence in
considering notices and the like. See Baldwin Cnty. Welcome Ctr. v. Brown, 466
U.S. 147, 150–51, 104 S. Ct. 1723, 1725–26, 80 L. Ed. 2d 196 (1984) (per curiam);
Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1005 (9th Cir. 2006).
7
Pert also seeks to assert that the district court should have reviewed the
forfeiture decision of the DEA pursuant to the doctrine of equitable jurisdiction.
We decline to consider that issue; Pert waived it by not raising it at the district
court and by not properly arguing it in his opening brief. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999); Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th
Cir. 1996); see also United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
3