author: CHARLES R. RICHEY, District Judge.

text:
    HAITIAN REFUGEE CENTER, INC. et al., Plaintiffs, v. Admiral James S. GRACEY, Commandant, United States Coast Guard, et al., Defendants.
    Civ. A. No. 84-2270.
    United States District Court, District of Columbia.
    Jan. 10, 1985.

      Charles Gordon, Washington D.C., Marvin E. Frankel, Arthur C. Helton and Jo. R. Backer, Lawyers Committee for Intern. Human Rights, New York City, for plaintiffs; Ira J. Kurzban, Miami, Fla., of counsel.
    Lauri Steven Filppu, Mark C. Walters, David V. Bernal, Civ. Div., Dept, of Justice. Richard K. Willard, Acting Asst. Atty. Gen., Civ. Div., Washington, D.C., for defendants.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

The complaint in this case raises several challenges to the interdiction by United States officials of visaless aliens on the high seas. This program of interdiction was ordered by the President in 1981. The plaintiffs herein are the Haitian Refugee •Center (“HRC”), a nonprofit membership corporation located in Miami, Florida, and two of its members. The defendants are the Commandant of the U.S. Coast Guard, and the Commissioner of the Immigration and Naturalization Service (“INS”).

The Court currently has before it a motion to dismiss, and cross-motions for summary judgment. Upon consideration of the motions, the supporting memoranda, oral argument, and the entire record herein, the court has decided to grant the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. The Court has today issued an Order consistent with this Opinion.

FACTS

On September 29, Í981, President Reagan authorized the interdiction of certain vessels containing undocumented aliens on the high seas. Proclamation No. 4865, 46 Fed.Reg. 48107 (published October 1, 1981), reprinted in 8 U.S.C.A. sec. 1182 (supp. note). The President had found that the illegal migration of many undocumented aliens into the United States was “a serious national problem detrimental to the interests of the United States”, and that international cooperation to intercept vessels trafficking in such migrants was a necessary and proper means of ensuring the effective enforcement of United States immigration laws. Id.

By Executive Order No. 12324, also dated September 29, 1981, President Reagan ordered the Secretary of State to enter into cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea. 46 Fed.Reg. 48109, 48110 (published October 1, 1981), reprinted in 8 U.S.C.A. sec. 1182 (supp. note). He ordered the Secretary of Transportation to issue instructions to the Coast Guard in order to enforce the suspension of undocumented aliens and the interdiction of any “defined” vessel carrying such aliens. Among the defined vessels were the vessels of foreign nations with which the United States has arrangements authorizing it to stop and board such vessels.

Executive Order 12324 also ordered the Secretary of Transportation to direct the Coast Guard “[t]o return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist.” Id. The Order provided, however, “that no person who is a refugee will be returned without his consent.” Id. The Coast Guard actions were to be taken only outside United States territorial waters. Indeed, plaintiffs admit that the instant suit challenges only actions taken beyond the territorial boundaries of the United States. Transcript at 48.

The President also ordered the Attorney General, in consultation with the Secretaries of State and Transportation, to take appropriate steps “to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland.” Id.

On September 23, 1981, the United States and Haiti entered into a cooperative arrangement for the purpose of preventing illegal migration of undocumented Haitians to the United States by sea. T.I.A.S. 10241. The arrangement permits United States authorities to board Haitian flag vessels on the high seas, to inquire regarding the condition and destination of the vessels, and the status of those on board. If a violation of United States or appropriate Haitian law is discovered, the vessel and passengers may be returned to Haiti. The arrangement provided that “[i]t is understood that under these arrangements the United States Government does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status.” Id. The Government of Haiti also agreed that Haitians returned to their country who are not traffickers will not be subject to prosecution for illegal departure. Lastly, the United States agreed to the presence of a representative of the Navy of Haiti as liason aboard any United States vessel engaged in the implementation of the cooperative arrangement.

THE PRESIDENT’S CONSTITUTIONAL AND STATUTORY AUTHORITY TO SUSPEND THE ENTRY OF ILLEGAL ALIENS ON THE HIGH SEAS

The President’s power to interdict illegal aliens on the high seas derives from statutory and constitutional sources. Congress granted statutory authority in 8 U.S.C. §§ 1182(f) and 1185(a)(1), which provide:

§ 1182(f)
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for' such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
§ 1185(a)(1)
Unless otherwise ordered by the President, it shall be unlawful — (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe; ____

These provisions make it clear that Congress has allowed the Executive Branch to exercise its broad discretion regarding alien immigration. Matthews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). It is particularly appropriate for Congress to give the President a high degree of flexibility where the exclusion of aliens directly implicates the sovereignty of our nation and is interwoven with foreign relations. Id.; Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965); Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950).

Congress has made clear its approval of the interdiction program through the budget process. In providing funding for the program, in a recent Senate Report accompanying Senate Bill 2852, the Committee on Appropriations reported as follows:

The Committee is pleased with the Coast Guard’s Haitian interdiction program which during the first half of fiscal year 1984 interdicted seven vessels, turning back 349 people. Based on actual arrivals to our shores and the INS estimate of the average historical number of arrivals to our shores each year, the program is 95 percent effective. The Coast Guard is directed to continue the current patrols in the Windward Passage and off the various coastal areas of Florida through fiscal year 1985.

Report, Department of Transportation and Related Agencies Appropriations Bill, 1985, S.Rep. No. 98-561 at 15, 98th Cong., 2d Sess. (1984).

Congress has also specified that foreign aid, under the Foreign Assistance Act of 1961, and credits under the Arms Export Control Act, be made available to Haiti only if the President determines that the Government of Haiti “is continuing to cooperate with the United States in halting illegal emigration to the United States from Haiti.” Pub.L. No. 98-151, 97 Stat. 971 (1983). Thus, the President’s action has received explicit support from Congress. The statutory authority for high seas interdiction is beyond doubt in this case, where the President and Congress so clearly concur. Cf. Haig v. Agee, 453 U.S. 280, 300-01, 101 S.Ct. 2766, 2778-79, 69 L.Ed.2d 640 (1981).

The Coast Guard’s interdiction is only allowed outside the territorial waters of the United States. The Coast Guard’s authority is found in 14 U.S.C. § 89(a), which provides for the stopping of ships on the high seas in order to detect violations of American laws. The powers given the Coast Guard under that statute specifically include “lawful and appropriate action.” 14 U.S.C. § 89(a). Thus, an agreement with another country specifically granting the United States permission to return seized vessels and migrants to that country makes such return proper under § 89(a).

In addition to statutory authority, the President has implied constitutional power under Article II of the Constitution to suspend entry of certain groups of aliens. The Chinese Exclusion Case, 130 U.S. 581, 603-11, 9 S.Ct. 623, 628-632, 32 L.Ed. 1068 (1889). As the Supreme Court stated in Knauff v. Shaughnessy, in language applicable here:

[T]here is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of our nation. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 [57 S.Ct. 216, 81 L.Ed. 255]; Fong Yue Ting v. United States, 149 U.S. 698, 713 [13 S.Ct. 1016, 1022, 37 L.Ed. 905]. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

338 U.S. 537, 542-43, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950) (citations omitted) (emphasis supplied). Even if there is no express statute for the President to execute, he may act to protect threatened American citizens or property. In re Neagle, 135 U.S. 1, 63-67, 10 S.Ct. 658, 668-669, 34 L.Ed. 55 (1890). Thus the President clearly has inherent authority to act to protect the United States from harmful illegal immigration.

This inherent power is closely related to the President’s undisputed, exclusive power to act “as the sole organ of the federal government in the field of international relations....” United States v. CurtissWright Export Corp., 299 U.S. 304, 319-20, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936). “It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations.... ” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952).

In sum, the President’s power to suspend the entry of illegal aliens from the high seas by interdiction has a clear constitutional basis.

UNITED STATES OBLIGATIONS TOWARD REFUGEES ON THE HIGH SEAS

The United States is a party to the 1967 Protocol Relating to the Status of Refugees, which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees. 19 U.S.T. 6223; T.I.A.S. No. 2545. The Protocol defines a “refugee” as any person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

Article 33 of the Convention, incorporated into the Protocol, provides as follows:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.

The Protocol does not specify the procedures for determining refugee status. Those procedures are apparently left to each contracting nation. Although Congress has directed the Attorney General to establish procedures for use when an alien arrives in the United States or seeks admission to the United States from a foreign country (8 U.S.C. §§ 1157, 1158), neither Congress nor the Attorney General has established any procedures for use on the high seas.

THE COMPLAINT

In the present complaint, the plaintiffs attack the United States program of high seas interdiction of Haitians, which is carried out pursuant to the cooperative arrangement with Haiti. Alleging that “the human rights situation in Haiti [is] ... very grave,”-and that “hundreds of thousands of Haitians have fled ... to escape ... political persecution,” (Amended Complaint ¶¶ 5, 6), the plaintiffs bring several causes of action against the interdiction program.

In Count I, the plaintiffs contend that the actions of defendants under the interdiction program violate the rights of Haitians under the Refugee Act of 1980 and the Immigration and Nationality Act, 8 U.S.C. § 1253. In Count II plaintiffs contend that defendants have deprived Haitian refugees on interdicted vessels of their liberty and rights afforded them by the Refugee Act and the Immigration and Nationality Act, in violation of the Fifth Amendment of the Constitution.

In Count III plaintiffs allege that the interdiction program fails to satisfy the “nonrefoulment obligation” imposed by the United Nations Protocol and Universal Declaration of Human Rights by creating a substantial risk that political refugees will be forcibly returned to face persecution. Plaintiffs also contend that the program violates the provision against racial and other discrimination in Article 3 of the United Nations Convention. Count IV charges a violation of the extradition statute, 18 U.S.C. sec. 3181 et seq., and the Extradition Treaty between the United States and Haiti, 34 Stat. 2858.

After addressing the preliminary issue of standing, the Court addresses each of these counts below. None of them states a claim upon which relief can be granted.

THE PLAINTIFFS HAVE STANDING TO RAISE THESE CLAIMS

The defendants challenge the standing of the plaintiffs HRC and two of its members. As can be seen by a brief examination of the role of the HRC, the defendants’ argument fails.

Plaintiff HRC is a nonprofit membership corporation organized under the laws of the State of Florida. The two individual plaintiffs, Edouard Franck and Carlos Dorsainville, are members of the HRC. The sole purpose of the HRC, as set forth in its by-laws, is to promote the well-being of Haitian refugees through appropriate programs and activities, including legal representation. A principal activity of the HRC has been the legal representation of Haitian refugees who are seeking political asylum or other official status in this country. See generally Louis v. Nelson, 544 F.Supp. 973 (S.D.Fla.1982), aff'd in part, rev’d in part, sub nom. Jean v. Nelson, 711 F.2d 1455 (11th Cir.1983), dismissed in part, 727 F.2d 957 (11th Cir.), reh. denied, 733 F.2d 908 (11th Cir.1984) (en banc); Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.1982).

In order to establish standing to sue in a federal court, the plaintiffs must satisfy constitutional requirements and prudential considerations. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The constitutional limitations on standing require the plaintiffs to be able to demonstrate some “injury in fact” resulting from the defendants' action. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The prudential considerations include whether the plaintiffs’ interests at stake are “arguably within the zone of interests to be protected or regulated” by the various causes of action in the complaint. Associa tion of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Additionally, the plaintiffs must allege an injury in some way different from the injury suffered by the general public. Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. The HRC and its two member-plaintiffs satisfy these requirements of standing.

1. The Standing of the HRC.

Plaintiff HRC has alleged injury both to itself as an organization, and in a representative capacity for its members.

In bringing suit on behalf of itself as an organization, the constitutional basis for HRC’s standing is assured by Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In that case, a nonprofit organization known as “Housing Opportunities Made Equal” (“HOME”) brought suit against a realty corporation alleging racial steering in violation of the Fair Housing Act. HOME’S organizational purpose “was ‘to make equal opportunity in housing a reality in the Richmond Metropolitan Area’ ”, 455 U.S. at 368. The Supreme Court held that because the defendants’ challenged practices had “perceptibly impaired HOME’S ability to provide counseling and referral services for low and moderate-income homeseekers”, and because this constituted a “concrete and demonstrable injury to the organization’s activities [and a] consequent drain on [its] resources”, HOME had met the constitutional standing requirements. 455 U.S. at 379, 102 S.Ct. at 1124.

HRC’s position in the present case resembles that of HOME in Havens. Like the nonprofit organization in Havens, the HRC exists to provide counseling, legal and other services to a specific and limited class of persons — Haitian refugees. HRC alleges that the interdiction program, like the alleged racial steering program in Havens, impairs its ability to carry out its basic functions, i.e., counseling Haitian refugees. Thus, HRC’s allegations plainly satisfy the constitutional standing requirements.

HRC also brings suit in a representative capacity to redress injuries suffered by its members. In this capacity, HRC alleges injuries to the associational ties of its members. The Supreme Court established the controlling test for standing by such an organization in Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977):

[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.

The HRC members have standing to sue in their own right. Although their alleged injury is not easily quantifiable, such as economic injury, “actual harm to individual values of an abstract or esoteric nature can provide the basis for standing.” O’Hair v. White, 675 F.2d 680, 687 (5th Cir.1982). Significantly, the HRC members allege a harm not suffered by most of the population. Cf. Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758; Warth, 422 U.S. at 500, 95 S.Ct. at 2205. See also NAACP v. Harris, 567 F.Supp. 637 (D.Mass.1983) (allowing the NAACP to bring suit on behalf of black people in Boston, “a defined and discrete constituency”). The HRC similarly represents a “defined and discrete constituency”, and challenges, inter alia, the United States’ cooperative arrangement with Haiti. Because HRC's members, Haitian refugees in the U.S., could bring suit themselves, the HRC has satisfied the first prong of the Hunt test.

The HRC also satisfies the second part of the Hunt test — that of germaneness. The HRC’s primary purpose is to assist indigent Haitians, often in confrontations with U.S. authorities. “[T]he work of HRC focuses on the representation of members and prospective members before the INS.” Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 474 (1980), modified, 676 F.2d 1023 (5th Cir.1982) (emphasis supplied). Therefore, the interests which the HRC seeks to protect in this lawsuit are germane to its purposes. Hunt, 432 U.S. at 343, 97 S.Ct. at 2441.

The defendants make no serious argument that the claims asserted or the relief sought requires the participation in this suit of the individual HRC members. The HRC seeks injunctive and declaratory relief against the interdiction program. As the Court noted in Warth, 422 U.S. at 515, 95 S.Ct. at 2213, “it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Accordingly, the HRC satisfies that third prong of the Hunt test.

Having met the constitutional requirements for standing to bring suit, the HRC must also satisfy certain prudential considerations. As previously noted, the interests at stake must be arguably within the zone of interests protected by the statute, and the alleged injury must be in some way different from that suffered by the general public. See Association of Data Processing, 397 U.S. at 153, 90 S.Ct. at 829; Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. In the present case, as in Hotel & Restaurant Employees Union, Local 25 v. Smith, 563 F.Supp. 157 (D.D.C.1983), these considerations weigh in favor of plaintiffs’ standing.

In Hotel & Restaurant Employees, this Court upheld the standing of a labor union to challenge the practices of the State Department and the Attorney General with regard to the immigration applications of Salvadoran nationals. Because the union alleged injury to its own “ability to organize and retain Salvadoran members as well as its efforts to protect the rights of its existing Salvadoran members to be secure in their jobs”, and injury to the associational ties of its members, the Court held the allegations “plainly sufficient to support standing.” 563 F.Supp. at 159. Citing Hunt, Warth and United, States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Court concluded that “surely standing must be allowed here, where plaintiff has alleged a direct injury to itself as well as to its members’ associational ties.” Id. at 160.

The HRC in the present ease stands in a similar position to that of the union in Hotel & Restaurant Employees. The HRC, by challenging a practice of the United States authorities relating to the immigration of Haitian nationals, is seeking to protect both its own interests and the associational interests of its members. Just as the union in Hotel & Restaurant Employees fell within the zone of interests intended to be protected by the constitutional and statutory provisions governing political asylum and extended voluntary departure, so does the HRC fall within the zone of interests of the constitutional, statutory, and international obligations found in the instant complaint. Moreover, because the HRC represents a “defined and discrete constituency”, NAACP v. Harris, 567 F.Supp. at 639-40, the alleged injury suffered by HRC and its members is not shared by the community at large. Therefore, the HRC, in addition to meeting the constitutional requirements of standing, satisfies the relevant prudential considerations.

2. The Standing of Edouard Frank and Carlo Dorsainville.

Plaintiffs Edouard Frank and Carlo Dorsainville, members of the HRC, have alleged injury to their associational rights as a result of defendants’ actions. Thus, for reasons already discussed, supra p. 1402, these individual plaintiffs have standing to sue.

THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Count I — The Refugee Act and the Immigration and Nationality Act Do Not Provide Aliens Outside the United States with the Right to Apply for “Refugee” Status Nor with the Right to “Exclusion Procedures”.

Plaintiffs' claims under Count I amount to contentions that interdicted Haitians are entitled to invoke procedures established by the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 109 (March 17, 1980), and the Immigration and Nationality Act. However, those acts only establish procedures guaranteed to aliens within the United States. Because the interdicted Haitians never reach the United States, these two acts can provide no relief to plaintiffs.

The Refugee Act of 1980 amended the Immigration and Nationality Act and added an asylum provision:

(a) The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A).

8 U.S.C. § 1158(a) (emphasis supplied).

The present action challenges the high seas interdiction of Haitians, not the treatment of Haitians within the United States (or at a land border or port of entry). This statute by on the high seas, and thus this statute cannot form the basis for a claim for relief.

Count I also stresses that the interdiction violates the deportation provisions of the Immigration and Nationality Act, 8 U.S.C. § 1253(h). That section provides as follows:

The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this Title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group or political opinion.

This provision is found in Part V (Subchapter II) of the Immigration and Nationality Act, which governs deportation and adjustment of status. The deportation provisions of Part V only apply to aliens “in the United States.” 8 U.S.C. § 1251, 1253(a). Thus it is clear that this section, like the Refugee Act, can provide no relief against the program of high seas interdiction.

Plaintiffs’ remaining contention in Count I is that interdicted Haitians are unlawfully denied the benefit of exclusion proceedings. The Immigration and Nationality Act has established procedures for the exclusion of aliens, including the entitlement to a hearing. See 8 U.S.C. § 1226. Those rights, however, are reserved for aliens arriving “by water or by air at any port within the United States from any place outside the United States.” Id. Contrary to plaintiffs’ assertion, the interdicted Haitians also have no statutory “right to counsel”, which is reserved to those aliens in “exclusion or deportation proceedings.” 8 U.S.C. § 1362. Again, because those “exclusion or deportation proceedings” are restricted to aliens arriving “at any port within the United States”, 8 U.S.C. § 1221, it is clear that the interdicted Haitians are entitled to none of these statutorily-created procedural rights, including the right to counsel.

The plaintiffs contend that “the Executive cannot free itself of its procedural obligations merely by reaching out to sea and changing the locale of its process.” Plaintiffs’ Memorandum in Support of Cross-Motion for Summary Judgment at 11. However, because the statutory obligations do not exist until an alien comes within the United States, plainly the Executive can avoid those obligations by interdicting the Haitians on the high seas. As long as interdiction is within the power of the President, which it is (see supra pp. 1398-1400), there can be no claim that it violates the statutory “rights” of aliens in other respects merely because it frustrates the efforts of the illegal aliens to reach the point where those rights attach. Until a person has a right, there can be no denial of that right.

In sum, plaintiffs are entitled to no relief under Count I. Interdicted Haitians have no right to apply for either asylum pursuant to 8 U.S.C. § 1158 or withholding of deportation under § 1253(h). Nor are they entitled to any “exclusion procedures”. Because all of these rights apply only to aliens found within the United States, Count I fails to state a claim upon which relief can be granted.

Count II — The Program of Interdiction Does Not Violate Due Process.

In Count II the plaintiffs contend that the defendants have acted beyond their constitutional and statutory authority and have deprived Haitian refugees of their liberty. Plaintiffs allege that these actions violate the Fifth Amendment because they violate the “standards of due process defined by Congress in the Refugee Act and the Immigration and Nationality Act.” Amended Complaint ¶ 52. This Count fails to state any claim upon which relief can be granted.

As previously discussed, the Executive has ample constitutional and statutory authority for the high seas interdiction program. See supra pp. 1398-1400. Plaintiffs’ contention to the contrary is simply without merit.

Similarly, plaintiffs’ assertion of the Fifth Amendment due process violation cannot withstand scrutiny. As exhaustively detailed in the discussion of Count I, the statutory rights plaintiffs seek to invoke do not apply to aliens outside the United States. Therefore, the defendants have not, as alleged in Count II, violated the Congressionally defined standards of due process found in the Refugee Act and the Immigration and Nationality Act.

Moreover, any claim founded on the Fifth Amendment fails in this context. Aliens have no constitutional rights to enter the United States. Kleindienst v. Mandel, 408 U.S. 753, 765-66, 92 S.Ct. 2576, 2582-83, 33 L.Ed.2d 683 (1972); Galvan v. Press, 347 U.S. 522, 530-32, 74 S.Ct. 737, 742-43, 98 L.Ed. 911 (1954). As the Supreme Court recently stressed in Landon v. Plascencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982):

This Court has long held that an alien seeking admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.

(Citations omitted). Again, in Kwong Hai Chew v. Colding, 344 U.S. 590, 600, 73 S.Ct. 472, 479, 97 L.Ed. 576 (1953), the Supreme Court noted that “ ‘excludable’ aliens ... are not within the protection of the Fifth Amendment.”

This conclusion has recently been buttressed by the Eleventh Circuit Court of Appeals, sitting en banc. Jean v. Nelson, 727 F.2d 957 (11th Cir.1984). That case, which arose out of a class action brought on behalf of Haitian aliens who had arrived in Southern Florida and who were detained at INS facilities pending a final determination of the merits of their asylum petitions, presented “complex and fundamental questions concerning the rights of excludable or unadmitted aliens and the authority of the Executive branch over immigration matters.” 727 F.2d at 961. The Court noted that there is “a fundamental distinction between the legal status of excludable or unadmitted aliens and aliens who have succeeded in effecting an ‘entry’ into the United States, even if their presence here is completely illegal.” Id. at 967. The court went on to hold, in accordance with a long line of Supreme Court cases, that “[ajliens seeking admission to the United States therefore have no constitutional rights with regard to their applications and must be content to accept whatever statutory rights and privileges they are granted by Congress.” Id. Plainly, then, the interdicted Haitians have no Fifth Amendment rights, and Count II must be dismissed.

Count III — The United Nations Protocol and the Universal Declaration of Human Rights Do Not Provide Rights Upon Which Plaintiffs May Rely.

In Count III the plaintiffs invoke the 1976 United Nations Protocol Relating to the Status of Refugees and the Universal Declaration of Human Rights. Because neither document affords any rights to the interdicted Haitians, Count III cannot form the basis for any relief.

The plaintiffs claim that the program of interdiction violates the non-refoulement obligations of the United Nations Protocol. However, it has long been established that for a treaty to provide rights enforceable in a United States Court, the treaty must be one which is self-executing. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829). “Unless a treaty is self-executing, it must be implemented by legislation before it gives rise to a private cause of action.” Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.1979); See also Hanoch Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542, 547 (D.D.C.1981), aff'd, 726 F.2d 774 (D.C.Cir.1984).

The United Nations Protocol is not self-executing. Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982). In Bertrand, the Second Circuit held that “the Protocol’s provisions were not themselves a source of rights under our law unless and until Congress implemented them by appropriate legislation.” Id. This conclusion is compelled by the terms of the treaty itself, which provided that the signatories were to communicate to the United Nations the “laws and regulations which they adopt to ensure the application of the Present Protocol.” 19 U.S.T. 6226. Treaties with “[s]uch provisions are uniformly declared executory.” United States v. Postal, 589 F.2d 862, 876-77 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979).

Congress has implemented the Protocol, at least in part, through the Refugee Act of 1980. Bertrand, 684 F.2d at 218. However, that statute does not provide any rights to aliens outside of the United States. 8 U.S.C. § 1158. Thus, the plaintiffs can find no relief in the United Nations Protocol.

The plaintiffs also assert in Count III that the interdiction program violates Haitians’ rights under the Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations in 1948. G.A.Res. 217, 3 U.N. GAOR, U.N. Doc. 1/777 (1948). This declaration is merely a nonbinding resolution, not a treaty. “It is not and does not purport to be a statement of law or of legal obligation.” In re Alien Children Education Litigation, 501 F.Supp. 544, 593 (S.D.Tex.1980) (quoting 5 Whiteman, Digest of International Law 243 (1965), in turn quoting Mrs. Franklin D. Roosevelt, then-U.S. representative in the General Assembly). It is plain, therefore, that this declaration provides no right of action for the plaintiffs.

Count IV — The Extradition Treaty and Statute Provide Relief Only to Haitians in the United States.

In Count IV the plaintiffs allege that the defendants’ interdiction program violates a 1905 Extradition Treaty with Haiti, 34 Stat. 2858, and the federal extradition statute, 18 U.S.C. § 3181 et seq. Like the other statutes mistakenly relied upon by plaintiffs, the extradition treaty and statute provide relief only to Haitians in the United States. Because the interdiction program complained of occurs on the high seas, outside the United States, this Count fails to state a claim upon which relief can be granted.

The treaty between the United States and Haiti for mutual extradition of fugitives from justice applies only to persons accused or convicted of crimes committed in one country who are “found in the territory of the other.” Treaty of Extradition, January 28, 1905, United States — Haiti, Art. I, 34 Stat. 2858, 2859. This treaty is facially inapplicable to the interdiction program, which is carried out on the high seas. Because the interdicted Haitians are not “found in the territory of” this country, the treaty can provide no relief to the plaintiffs.

Similarly, the extradition statute relied upon by plaintiffs applies only to “any person found within” the jurisdiction of a court of the United States. 18 U.S.C. § 3184. Clearly the interdiction program does not run afoul of this statute.

Because neither the extradition treaty nor statute applies to defendants’ activities on the high seas, Count IV fails to state a claim upon which relief can be granted.

CONCLUSION

Although the plaintiffs have standing to bring this suit, none of the four Counts contained in the instant complaint states a cause of action upon which this Court may grant relief. Because the interdiction program herein attacked occurs outside the jurisdiction of the United States, neither the statutes nor the treaty upon which plaintiffs rely can provide any relief. Because the interdicted Haitians never reach the shores of the United States, they are entitled to no protections contained within the Fifth Amendment of the Constitution. The plaintiffs also can find no relief in the United Nations Protocol Relating to the Status of Refugees and' the Universal Declaration of Human Rights.

It is clear that the President instituted the interdiction program pursuant to ample constitutional and statutory authority. See generally Knauff v. Shaughnessy, 338 U.S. 537, 542-43, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); In re Neagle, 135 U.S. 1, 63-67, 10 S.Ct. 658, 668-669, 34 L.Ed. 55 (1890). This program is carried out pursuant to an agreement with Haiti, and is therefore intricately interwoven with matters of foreign relations. Knauff, 338 U.S. at 542, 70 S.Ct. at 312. Because such programs “are so exclusively entrusted to the political branches of government”, this Court’s review is correspondingly narrow. Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952). Therefore, the result which the Court today reaches should not surprise the plaintiffs. Although the actions of the plaintiffs, and their representatives, are commendable, and stem from the highest form of humanitarian concern, the Court cannot allow its sympathy for the plight of the Haitians to blind it from the law. The Court simply can find no basis for relief. The Court has today issued an Order, consistent with this Opinion, which dismisses this action for the reasons herein stated.


source: Caselaw Access Project

author: PLUNKETT, District Judge.

license: Public Domain

text:
    Bernard Shaney WILLIS, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 82 C 5999.
    United States District Court, N.D. Illinois, E.D.
    Jan. 11, 1985.

      Anna R. Lavin, Chicago, Ill., for plaintiff.
    Elizabeth Stein, Asst. U.S. Atty., Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

In this suit, plaintiff Bernard Shaney Willis seeks damages and equitable relief from defendant United States of America, to redress alleged violations of his fourth and fifth amendment rights resulting from a seizure of his car by officers of the Drug Enforcement Administration (the “D.E.A.”) pursuant to 21 U.S.C. § 881(a)(4). Plaintiff attempts to invoke, and to the extent that damages do not exceed $10,000, defendant purports to “concede,” jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2). We find, however, that plaintiff has not stated a cause of action cognizable under the Tucker Act because the fourth amendment and due process clause of the fifth amendment do not give rise to a cause of action directly against the United States of America for money damages. Furthermore, plaintiff cannot maintain this suit under general federal question jurisdiction, 28 U.S.C. § 1331, because the action is barred by the doctrine of sovereign immunity. Plaintiff’s equitable claims, however, are cognizable because of the creation of a cause of action and waiver of sovereign immunity by the Administrative Procedure Act, 5 U.S.C. § 702. On the merits, however, we grant defendant’s motion for summary judgment and deny plaintiff’s cross-motion for summary judgment because we find that plaintiff has not alleged any cognizable violations of his constitutional rights.

Background

The uncontested facts in this case are as follows. On August 4, 1981, D.E.A. agents seized plaintiff’s 1977 Chevrolet Corvette. On August 24, 1981, plaintiff received a letter from an officer of the D.E.A. advising him first, that the car had been seized pursuant to 21 U.S.C. § 881(a)(4), subjecting to forfeiture vehicles used to transport controlled substances; second, that the appraised value of the vehicle was $8,000.00; and third, that plaintiff had the right to petition for remission or mitigation, or contest probable cause, in the following manner:

If it is your intention to file a petition for remission or mitigation of forfeiture, it must be filed in triplicate with this office within 30 days from the date of this letter and must conform to the requirements outlined in the above cited authorities.
If you intend to place the matter in the United States District Court to contest the probable cause for this seizure, a claim and cost bond of $250.00 must be filed with this office on or before September 16, 1981. Indigent persons who desire to place the matter before the court, but who are unable to post the $250.00 bond, may file an Affidavit of Indigency. Further information on this is available from the Drug Enforcement Administration.
If you have any questions regarding the above, please contact Anita L. Paryga at (312) 353-1017.

In response, on September 21, 1981, plaintiff, through an attorney, filed a “Petition for Remission of Seized Property” in which plaintiff claimed that neither he nor his vehicle had been involved in unlawful activity and that the seizure of his car by the D.E.A. had deprived plaintiff of his fifth amendment due process rights. Plaintiff asked for immediate return of the car.

On January 7, 1982, a D.E.A. attorney responded by letter to plaintiffs then-attorney, stating that “[t]he petition is denied since the facts reveal that the petitioner was involved in the use of the vehicle in violation of the law.” Seven months later, plaintiffs present counsel wrote to the D.E.A. requesting information about the matter. A D.E.A. attorney replied, stating that D.E.A. reports revealed that the car had been used to transport cocaine, but that plaintiffs failure to file a claim and bond to contest probable cause ended his right to a hearing on the matter. The vehicle remains in storage with the government.

Plaintiff alleges several grounds for relief. In Count I, plaintiff claims that the government violated his fourth and fifth amendment rights because there was no “reasonable cause” for the seizure. In Count II, plaintiff claims that he was not given fair warning that he would be deemed to have waived the opportunity to contest probable cause by failing to post bond, and that as a layman he took “all prudent steps within his limited power” to protect his interests and relied on the expertise of his lawyer. Plaintiff requests that this court use its supervisory powers to protect plaintiff and others in his position “against surreptitiously implied waiver.” In Count III, plaintiff claims and seeks a declaratory judgment to the effect that 28 C.F.R. § 9.4, the regulation that establishes procedures for claimants to petition for remission or mitigation but provides that a hearing is not available, fails to conform to the seizure provisions for violations of customs laws, 19 U.S.C. § 1618, and thereby derogates the statutes it purports to implement, 21 U.S.C. §§ 871, 881(d). These statutes make applicable to narcotics-related seizures the customs laws seizure provisions. Plaintiff alleges that in his case, without a hearing, officers of the defendant failed to ascertain the relevant facts, denying him due process of law. Count IV duplicates Counts I and III. In Count V, plaintiff alleges that the almost four-month interval between plaintiffs filing of his petition for remission and the notification of denial by the D.E.A. violated a requirement of the due process clause for immediate review of summary seizure proceedings. Plaintiff requests as relief on all counts the return of his car, and damages to cover the car’s depreciation value, interest, plaintiff’s loss of the use of the car, costs in trying to retrieve it, costs of suit and attorney’s fees.

Jurisdiction

The threshold question to be considered in this or any suit against the United States is whether or not the defendant has waived its sovereign immunity. “It long as been established, of course, that the United States, as sovereign, ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain that suit.’ ” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 587-588, 61 S.Ct. 767, 770-71, 85 L.Ed. 1058 (1944)). Since Congress alone can waive the United States’ sovereign immunity, see United States v. United States Fidelity Co., 309 U.S. 506, 513, 60 S.Ct. 653, 657, 84 L.Ed. 894 (1940); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 at 157-158 (1976), this court cannot take the government’s failure in this case to contest jurisdiction as a waiver but must raise the immunity question sua sponte.

The parties erroneously assume that this court can entertain this suit under the Tucker Act. That Act provides in relevant part,

§ 1346. United States as defendant.
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: ...
(2) Any ... civil action or claim against the United States ... not exceeding $10,-000 in amount, founded either upon the Constitution, or any act of Congress, or any regulation of an executive department. ...

28 U.S.C. § 1346(a)(2). Despite the apparent applicability of its language to plaintiffs lawsuit, the Tucker Act does not give this court jurisdiction over either plaintiffs equitable or his legal claims.

As to plaintiffs equitable claims, due to the fact that the Tucker Act establishes district court jurisdiction concurrent with that of the Court of Claims, a court without equitable powers in matters of this kind, the Act “empowers district courts to award damages but not to grant injunctive or declaratory relief.” Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 854, 43 L.Ed.2d 85 (1975); See Richardson v. Morris, 409 U.S. 464, 465-466, 93 S.Ct. 629, 630-31, 34 L.Ed.2d 647 (1973). Hence, the government has not by the Tucker Act consented to plaintiffs suit to the extent that it requests equitable relief (return of the car), a declaratory judgment, or exercise of this court’s supervisory powers.

As to plaintiff’s claims for money damages we find no source for such a cause of action under the Tucker Act. The Supreme Court has determined that the Tucker Act simply waives sovereign immunity as to substantive rights found in other sources of law, and does not itself create any substantive rights. See United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 2965-66, 77 L.Ed.2d 580 (1983). Accordingly, plaintiff’s complaint does not state a claim under the Tucker Act unless an independent source for it exists in the law. We recognize that the Court of Appeals for the Seventh Circuit has left an open question as to the power of a district court to decide sua sponte whether or not a complaint states a claim upon which relief can be granted. Merrill Tenant Council v. United States Department of Housing and Urban Development, 638 F.2d 1086, 1094 (7th Cir.1981). As we read Mitchell, though, the Tucker Act waives sovereign immunity only as to specific claims based in other sources of law, and where no such source exists, sovereign immunity bars a court from exercising subject matter jurisdiction over a complaint. Parties cannot waive defects in subject matter jurisdiction: “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.R. Civ.P. 12(h)(3) (emphasis added). As a result, we must' sua sponte inquire whether or not an independent source of law creates a substantive right for damages by which plaintiff’s complaint states a claim under the Tucker Act.

The fact that plaintiff’s claims invoke constitutional guarantees does not suffice, for “the claimant must demonstrate that the source of substantive law he relies upon ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” Id. (citations omitted). For a source of a cause of action such as this one to be found, in other words, the question is not simply whether or not the government violated plaintiff’s fourth or fifth amendment rights, but, rather, whether or not those provisions of the Constitution can fairly be read as creating a cause of action for money damages against the government.

We believe that neither constitutional provision can be so read. On its face, neither provision suggests that the government is liable for monetary compensation, as does for example the just compensation clause of the fifth amendment. This facial reading is confirmed by the reasons given by the United States Supreme Court for the creation of the Bivens doctrine in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), under which a damage remedy exists against federal officers for injuries resulting from violations of fourth amendment rights.

In announcing the existence of the Bivens remedy, the Supreme Court was guided by the principle that federal courts must “ ‘be alert to adjust their remedies so as to grant the necessary relief’ ” when federally protected rights are violated, id. at 392, 91 S.Ct. at 2002 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946)), because “ ‘[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,’ ” id. 403 U.S. at 397, 91 S.Ct. at 2005 (quoting Marburg v. Madison, 5 U.S. 137, 1 Cranch 137, 163, 2 L.Ed. 60 (1803)). The Court rejected the defendant agents’ position that state tort law provides an adequate redress for injuries resulting from violations of the fourth amendment. Id. 403 U.S. at 390-95, 91 S.Ct. at 2001-04. As a result, the Court concluded that fourth amendment rights must carry a corresponding remedy against offending officers for money damages.

This result would have been anomalous if it were the case that the fourth amendment gave rise to a cause of action directly against the United States for money damages. Then, the Tucker Act would waive sovereign immunity as to such suits. Federal courts would not have had to “adjust their remedies” to admit the Bivens remedy if another, in fact preferable, avenue of relief, against the government itself, were open. Clearly, the Bivens Court did not consider such a cause of action to be available under, let alone mandated by, the fourth amendment; indeed, Justice Harlan specified in concurrence, “[hjowever desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit,” id. at 410, 91 S.Ct. at 2012 (Harlan, J., concurring).

The same analysis applies to the due process clause of the fifth amendment. The Supreme Court has extended Bivens to recognize a cause of action for damages against federal officers for violations of the “equal protection component” of the due process clause, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), as has the Court of Appeals for the Seventh Circuit for the “due process” component of the due process clause, see e.g. Lojuk v. Quandt, 706 F.2d 1456, 1468-69 (7th Cir.1983). From these holdings we derive the same negative inference as to the availability of relief directly from the government under the due process clause as we derive with regard to the fourth amendment from Bivens itself. Thus, we believe, as several courts have implied or held, see DeVilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir.1981); Duarte v. United States, 532 F.2d 850, 852 (2d Cir.1976), that the fifth amendment does not clearly contemplate redress in the form of damage suits directly against the government.

An alternative source for this cause of action could be found in the forfeiture laws themselves if they carry an implied right of action of the sort sought by plaintiff here. We see no basis, though, for implying a distinct right of action under these statutes which provide explicitly for claimants to post bond and claim seized property in the context of civil forfeiture actions, see 19 U.S.C. §§ 1608, 1615 (made applicable to 21 U.S.C. § 881(a)(4) by 21 U.S.C. § 881(d)); 21 C.F.R. §§ 1316.76, 13416.78.

Admittedly, the Court of Appeals for the Seventh Circuit at one time held that an individual convicted in violation of the due process clause could sue the government under the Tucker Act to recover the value of a vehicle forfeited pursuant to the erroneous conviction. Pasha v. United States, 484 F.2d 630, 633 (7th Cir.1973). It is unclear whether the court believed that the action was founded on the fifth amendment or on the forfeiture statutes. In either case, we do not consider Pasha to be binding precedent. The decision predated and we believe was effectively reversed by the subsequent Supreme Court interpretation of the Tucker Act as being merely jurisdictional and requiring an independent source of a substantive right to recover damages, see United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 2965-66, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Similarly, we disagree with a body of law from various circuits assuming, without due consideration of the source of the substantive right, that unlawful forfeiture claims state a cause of action under the Tucker Act. See e.g., Simons v. United States, 497 F.2d 1046, 1049 (9th Cir.1974); Lowther v. United States, 480 F.2d 1031, 1035 (10th Cir.1973).

Accordingly, we hold that plaintiff has failed to state a claim under the Tucker Act. We proceed to consider whether any other statutes waive sovereign immunity and provide plaintiff with a cause of action in this suit.

We examine the Federal Torts Claims Act (“FTCA”) which gives district courts jurisdiction over

civil actions on claims against the United States, for money damages ... for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). Despite the seeming applicability of this statutory language, we doubt that Congress intended by this statute to create a federal cause of action and waive sovereign immunity for constitutional challenges such as this case. Again, we note the absence of consideration of the FTCA by the Bivens Court in its examination of the unavailability of an adequate remedy for violations of constitutional rights. Admittedly, the FTCA would have presented the same insufficiencies as state tort law; nonetheless, if the FTCA were applicable, then the Court’s failure so to mention in its discussion of state tort law would have been an odd omission. But see Fayerweather v. Bell, 447 F.Supp. 913, 915-16 (M.D.Penn.1978) (federal prisoner claiming that prison personnel negligently lost his property in violation of fifth amendment states cause of action under FTCA).

Moreover, we do not believe that plaintiff’s allegations both suggest “circumstances where the United States, if a private person, would be liable to the plaintiff” and avoid the exceptions carved out of the FTCA by Congress. For the sake of analysis we divide plaintiff’s complaint into two components: a claim that DEA agents took his car without cause, and a claim that after the seizure, plaintiff did not receive the process he was due.

The first component, which resembles the tort of conversion as between private parties, is, we believe, exempted from FTCA coverage by the “Exceptions” clause, which specifies that

The provisions of ... section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid....

28 U.S.C. § 2680. The gravamen of plaintiff’s “conversion” complaint is not that the D.E.A. agents took his property without statutory authority, but rather that the statutes and regulations which authorized the seizure are unconstitutional on their face or as applied to him. The FTCA is an improper vehicle for such a complaint; “the primary purpose of [the § 2680(a) ] exception was to preclude testing the legality of a statute or regulation by a tort action.” Stewart v. United States, 486 F.Supp. 178, 181 (C.D.Ill.1980).

The second component of plaintiff’s complaint, pertaining to the manner in which the officers carried out the statutes and regulations with regard to post-seizure procedures, such as the allegedly improper reading of plaintiffs petition as a waiver of the right to a hearing, and the allegedly unfair delay in notifying him of the denial of remission, purports to suggest a deprivation of procedural due process regardless of whether or not seizure was warranted. Even if this component of plaintiffs complaint could potentially sound in tort, and does not fall within the § 2680(a) “Exceptions” clause, in its present form it does not independently resemble a tort claim as between private parties. Plaintiff has not claimed, for example, emotional distress resulting from the alleged deprivation of due process. As such, the bare allegation of deprivation of due process does not per se give rise to tort liability. See Carey v. Piphus, 55 L.Ed.2d 252, 435 U.S. 247, 258, 262-64, 98 S.Ct. 1042, 1051-53 (1978).

Finally, assuming arguendo that our analysis is incorrect and that the FTCA creates a federal cause of action and jurisdiction for a complaint such as this one, plaintiff’s lawsuit is nevertheless time-barred under the FTCA. Congress waived sovereign immunity only as to those complaints filed “within six months ... of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Plaintiff here received a final denial of his petition by the agency in early January of 1982 and filed this lawsuit on September 30, 1982, more than eight- and-one-half months later. Because the statute of limitations has run, we lack jurisdiction under the FTCA. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979).

Hence, we believe that plaintiff’s claims for money damages are barred since we find no applicable statute by which the United States has waived sovereign immunity to a suit of this sort. We find, on the other hand, that plaintiff’s equitable claims are cognizable under section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702.

Section 702 provides in relevant part, A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial relief thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.

Plaintiff here claims to have suffered legal wrong because of agency action. The APA, unlike the Tucker Act, independently creates a cause of action for equitable relief, see Block v. Community Nutrition Institute, — U.S. -, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984); Glacier Park Foundation v. Watt, 663 F.2d 882, 884 (9th Cir.1981); see also Chrysler Corp. v. Brown, 441 U.S. 281, 316-17, 99 S.Ct. 1705, 1724-25, 60 L.Ed.2d 208 (1979) (availability of review under APA makes implied right of action under separate statute unnecessary), and waives sovereign immunity to such actions, Sea-Land Service, Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982). Furthermore, suits under the APA may be brought, as this one is, directly against the United States without naming an agency or officer as a defendant. See 5 U.S.C. § 703 (suit may be brought against United States, agency, or officer). Therefore, we see no bar to our consideration of plaintiff’s equitable claims under the APA.

Merits

Plaintiff’s primary contention is that federal agents deprived him of property without due process of law by seizing his car without “reasonable cause” and not providing him with a hearing. The statutory scheme pursuant to which the D.E.A. officers seized plaintiff’s car requires procurement of a warrant by the seizing officers except in cases where “the Attorney General has probable cause to believe that the property has been used or is intended to be used” to transport narcotics. 21 U.S.C. § 881(b)(4). In such cases, the statute permits summary seizure, but, where the seized goods are valued at less than $10,-000.00, the statute provides aggrieved individuals with two remedies in accordance with the customs laws, 19 U.S.C. §§ 1607-18, see 21 U.S.C. § 881(d). Within twenty days of notice of seizure, any person may file a claim and post a $250.00 bond to become entitled to participate in a judicial forfeiture proceeding. 19 U.S.C. §§ 1608, 1615; 21 C.F.R. §§ 1316.76, 1316.78. Additionally, within thirty days of notice of seizure, without posting bond, any person may file a petition for mitigation or remission of forfeiture, on which agency officials rather than a court rule without a hearing. 19 U.S.C. § 1618; 21 C.F.R. § 1316.79; 28 C.F.R. §§ 9.1-9.7.

These options were explained to plaintiff in the notice of seizure he received from D.E.A., as reprinted above. Plaintiffs method of responding, whether intentional or inadvertent, was to straddle the available courses of action. In form, plaintiffs response was a petition for remission, in that it was so titled, and was sent within the time for petitioning but after the time and without the requisite bond for filing a claim. In substance, however, plaintiffs “petition” more resembled a judicial claim in that it did not state grounds for remission or mitigation, but rather contested the basis for and constitutionality of the seizure. D.E.A. officers treated the response as a petition for remission. Hence, plaintiff was not accorded a hearing.

We believe that this course of events did not deprive plaintiff of due process of law. The fact that notice and the opportunity for a hearing were postponed until after seizure does not violate the due process clause in circumstances such as this where the government has an interest in asserting in rem jurisdiction over mobile property thought to have been used for illicit purposes. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 676-680, 94 S.Ct. 2080, 2088-90, 40 L.Ed.2d 452 (1974). Plaintiff had the constitutional right after the seizure to be put on notice of his option to receive a hearing. Our reading of the letter sent by D.E.A. to plaintiff is that it so notified him. We believe that the language, “If you intend to place the matter in the United States District Court to contest the probable cause for this seizure, a claim and cost bond of $250.00 must be filed with this office on or before September 16, 1981” instructs in plain English that a hearing is available upon performance of certain acts. Cf. United States v. One 1971 BMW 4-Door Sedan, 652 F.2d 817, 822 (9th Cir.1981) (similar letter meets minimum due process requirement for notification of right to petition for remission); compare Jaekel v. United States, 304 F.Supp. 993, 998-99 (S.D.N.Y.1969) (oral notice of seizure with advice to contact an attorney but without notification of pendency of forfeiture proceedings denies due process). Moreover, the letter provided a name and number to call in case of questions. Plaintiff, assisted by an attorney, failed to follow the outlined procedures for obtaining a hearing. While those who received his “Petition” might have interpreted it as a claim, albeit untimely and without the required bond, it was not incumbent upon them to do so. Otherwise, every petition that hints at a challenge of the grounds for seizure would be susceptible to the later interpretation that it was intended as a claim and entitled the petitioner to a judicial hearing.

Having found that plaintiff received due process in terms of notice and opportunity to intervene in a forfeiture hearing, we still must consider plaintiff’s contention that his petition for remission should have entitled him to a hearing. Plaintiff takes this position because he contends that the regulatory prohibition of hearings on such petitions in 28 C.F.R. § 9(c) derogates the customs laws statute providing that in appropriate circumstances the Secretary of the Treasury may

remit or mitigate the [forfeiture] upon such terms and conditions as he deems reasonable and just____ In order to enable him to ascertain the facts, the Secretary of the Treasury may issue a commission to any customs officer to take testimony upon such petition____

19 U.S.C. § 1618. The government contends that this court cannot review the procedures attendant to agency review of the petition because they are a matter of administrative grace. While the APA may preclude us from reviewing the agency’s decision on the merits of the petition if this “agency action is committed to agency discretion by law,” 5 U.S.C. § 701; see United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir.1977); United States v. One 1958 Pontiac Coupe, 298 F.2d 421, 423 (7th Cir.1962); we have the power under the APA to “hold unlawful and set aside agency action ... found to be ... short of statutory right...” 5 U.S.C. § 706(2). We can, therefore, determine whether 28 C.F.R. § 9(c) deprives plaintiff of a hearing to which its enabling statute entitles him.

We do not, however, believe that 28 C.F.R. § 9(c) derogates 19 U.S.C. § 1618. That latter provision allows the Secretary to take testimony at his discretion but creates no right in a petitioner to demand that the Secretary do so. Hence, the regulatory prohibition does not deprive plaintiff of a statutorily guaranteed right.

Plaintiff further alleges deprivation of due process because of the almost four-month interval between his petitioning for remission and his receipt of notification of denial. Again, the government claims unreviewability because of the discretionary nature of the agency’s treatment of petitions for remission. Here too, however, plaintiff does not ask us to reconsider the merits of his petition but rather to examine the constitutionality of the decision-making process, a task we are empowered to undertake. See 5 U.S.C. § 706. Having created regulations, even if gratuitous, the agency may be required to carry them out in constitutional fashion. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). While we know of no ready formula for determining how much time is too much time under the due process clause for the agency to keep a petitioner waiting, we do not see the four-month period as so egregious as to amount to a constitutional violation. Courts have found no deprivation of due process where intervals of this length or longer delay a seemingly more critical time period than this one; that is, the time between filing of claims and institution of forfeiture proceedings, see, e.g., United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (eighteen month delay); United States v. Oil Screw Gulf Princess II, 543 F.Supp. 1037, 1039-41 (S.D.Car. 1982) and cases cited therein.

Finding no violation of due process, we turn to consider plaintiff’s contention that the seizure violated his fourth amendment rights because the seizing officers lacked probable cause to believe that the car had been used to transport narcotics. We recognize our equitable power to order the government to return to the owner goods seized in violation of the fourth amendment, as plaintiff requests. See Go-Bart Importing Company v. United States, 282 U.S. 344, 355, 358, 51 S.Ct. 153, 157, 158, 75 L.Ed. 374 (1931). Yet if we examine the merits of plaintiff’s fourth amendment claim we will in effect circumvent the legislative scheme for forfeiture proceedings at which claimants may, by asserting their claim and posting bond in timely fashion, intervene and challenge the grounds for seizure. We consider the possibility that plaintiff, by his failure to follow the administrative procedures for causing the government to institute a judicial hearing, either consented to the seizure or forfeited the right to contest probable cause.

To identify plaintiff’s post-seizure fourth amendment rights we analogize to the more typical pre-search or -seizure rights. Ordinarily, of course, government officials bear the burden prior to search or seizure of appearing before a magistrate and demonstrating probable cause to obtain a warrant. An exception exists for searches and seizures conducted pursuant to consent, which extinguishes the warrant and probable cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The apparent rationale for the consent exception is that the individual has agreed to the intrusion into his or her privacy and therefore judicial authorization is not needed to override privacy rights, see Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946) (consent is voluntary waiver of claim to privacy).

Where searches and seizures must be conducted under exigent circumstances in summary fashion, procurement of a warrant is unnecessary but probable cause must exist, and can be challenged after the fact. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). The rationale for applying the consent exception in the pre-search or -seizure context seemingly applies as well after the fact of a summary seizure, so that an individual who chooses not to contest the basis for an exigent search or seizure relieves the government of the need to show that “the exigencies of the situation made that course imperative,” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). When the search or seizure is an accomplished fact, however, proof of consent may be more difficult than where consent is the entryway of police to the item to be searched or seized.

Consent ex ante, and by extension ex post, does not require “ ‘an intentional relinquishment or abandonment of a known right or privilege,’ ” the standard often applied to ascertain waivers of constitutional rights. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-48, 93 S.Ct. 2041, 2051-59, 36 L.Ed.2d 854 (1973) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Rather, consent is effective so long as voluntarily given. Id. at 248-49 (1973). In this case, the voluntariness of plaintiff’s actions and omissions through his attorney, specifically, petitioning for remission and failing to file a claim and bond, is not an issue. Yet, these voluntary actions and omissions do not in our judgment constitute “consent” to the seizure, given that plaintiff’s petition directly challenged the grounds for the seizure. Just as a pre-seizure statement to police of “Yes, you may not seize my car” would not, without other evidence, constitute consent, plaintiff’s omissions in combination with his actions here suggests at least as much a challenge to as an acquiescence in the seizure.

Nevertheless, we believe that despite lack of evidence of consent, plaintiff forfeited his right to contest probable cause. Courts have found in several contexts that fourth amendment rights can be forfeited. See e.g., Nardone v. United States, 308 U.S. 338, 341-42, 60 S.Ct. 266, 267-68, 84 L.Ed. 307 (1939) (defendant must take timely steps to challenge legality of government’s means of obtaining evidence, and judge should not consider such claims in midst of trial unless defendant lacked adequate knowledge to make claim at earlier stage); United States v. Bullock, 590 F.2d 117, 121 (5th Cir.1979) (defendant who failed to raise fourth amendment claim pri- or to or during trial cannot do so on appeal); United States v. Napela, 28 F.2d 898, 903 (N.D.N.Y.1928) (“[e]ven the constitutional right to move for a return of property illegally seized, and to object to evidence obtained and offered in violation of the Fourth and Fifth Amendments, may be impaired, if not lost, when not seasonably asserted”); Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 762, 774-75 (D.R.I.1978), rev’d on other grds, 602 F.2d 1010 (1st Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 752 (1980) (party who failed to press fourth amendment claim at earlier opportunity cannot assert claim in subsequent proceeding); cf. Weeks v. United States, 232 U.S. 383, 393, 398, 34 S.Ct. 341, 344, 346, 58 L.Ed. 652 (1914) (lower court should have granted “timely” and “seasonable” application of accused for return of seized property). In this case, plaintiff failed to avail himself of the opportunity to make the government invoke a judicial hearing on probable cause. Months after the statutorily prescribed time for filing a claim expired, plaintiff filed this suit. This side-stepping of available procedures, cumbersome for the agency and this court, amounts in our view to a forfeiture of the right to obtain a hearing. Cf. Thompson v. Schwaebe, 22 F.2d 518, 519-20 (9th Cir. 1927) (claimant who fails to file claim and post bond after summary seizure cannot, having bypassed adequate legal remedy, sue in equity for return of property).

We have in this opinion attempted to construe plaintiffs complaint and pleadings liberally, but we wish to emphasize that plaintiff did not by any fair reading of his complaint raise, arid as a result we express no opinion on, a number of challenges related to those we have examined. For example, we do not consider whether or not the statutory scheme under which plaintiffs car was seized violates the fourth or fifth amendments by placing the burden of instituting proceedings on the plaintiff, compare, e.g., United States v. Various Articles of Merchandise, 750 F.2d 596, 598 (7th Cir.1984) (consolidated cases); Jones v. City of Atlanta, 647 F.2d 580, 585 (5th Cir.1981) (discussing statutes which place burden on government to institute post-seizure proceedings and do not allow forfeiture by default); whether or not the bond requirement creates an unconstitutional condition; or whether or. not the burden of proof at forfeiture proceedings violates the fifth amendment, see Note, Due Process Implications of Shifting the Burden of Proof in Forfeiture Proceedings Arising out of Illegal Drug Transactions, 1984 Duke L.J. 822.

Conclusion

For all of the foregoing reasons, we find that plaintiff has not alleged any cognizable violations of his constitutional rights and accordingly we grant the government’s motion for summary judgment.