Van Dusen, Gibbons and Rosen, Circuit Judges.
This is an appeal from an order granting the defendants' motion for summary judgment and dismissing the complaint. The plaintiff, Menkarell, the owner of a motor vehicle, seeks its return, or in the alternative its value. The car was seized by the individual defendants, agents of the Bureau of Narcotics. The complaint also names the United States as a defendant. The United States Attorney, appearing for all defendants, moved to dismiss on the ground that the car had been properly seized and forfeited to the United States pursuant to 49 U.S.C. § 782 et seq. (1970) because it had been used to transport contraband in violation of 49 U.S.C. § 781 (1970). The district court did not reach the propriety of the forfeiture, but dismissed the complaint for the reason that the action was barred by the two year statute of limitations in 28 U.S.C. § 2401(b) (1970). This ground for dismissal was not urged by the government. The defendants urge, however, that whether or not the action was time barred the summary judgment should be affirmed because the seizure and forfeiture were proper.
THE APPLICABLE STATUTE OF LIMITATIONS
The district court held that the two year bar in 28 U.S.C. § 2401(b) governed. The plaintiff contends that the six year bar in 28 U.S.C. § 2401(a) is applicable. Section 2401(b) applies to tort claims against the United States. It is an amendment of the Federal Tort Claims Act, Act of Aug. 2, 1946, ch. 753, tit. IV, 60 Stat. 842, 28 U.S.C. § 2671 et seq. (1970), and it was designed to constitute a bar only to those actions as to which that statute first eliminated the bar of sovereign immunity. The House Report on the statute makes this quite clear:
"The Committee on the Judiciary to whom was referred the bill (H.R. 779) to amend the Federal Tort Claims Act to increase the time within which claims under such act may be presented to Federal agencies or prosecuted in the United States district courts, having considered the same, report favorably thereon without amendment and recommend that the bill do pass." (emphasis added) H.R.Rep.No.276, 81st Cong., 1st Sess. (March 21, 1949). 2 U.S.Code, Cong. & Admin. News, p. 1226 (1949).
If the complaint was one which, prior to the 1940 enactment of the Federal Tort Claims Act, was barred by sovereign immunity, the district court's decision would be correct. But before 1940, under the predecessor of 28 U.S.C. § 1346(a) (2) (1970) the United States has consented to suits for claims for recovery of taxes, fees and penalties alleged to have been wrongfully or excessively exacted under color of federal statutes. See Dooley v. United States, 182 U.S. 222, 21 S. Ct. 762, 45 L. Ed. 1074 (1901); Carriso v. United States, 106 F.2d 707 (9th Cir. 1939). The Carriso court expressly rejected the contention that a suit to recover excessive surveyor's fees exacted by a Collector of Customs was an action sounding in tort. It was instead "a claim founded upon a law of Congress within the meaning of § 24(20) of the Judicial Code [known as the Tucker Act, the predecessor of 28 U.S.C. § 1346(a) (2)]." 106 F.2d at 712.
The Dooley opinion, construing the Tucker Act, makes it clear that an action to recover an unlawful forfeiture under the customs law, though in some respects analogous to a tort action, nevertheless is a claim founded upon a law of Congress, namely a revenue act. See also United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 31-32, 35 S. Ct. 499, 59 L. Ed. 825 (1915).
The complaint in this case alleges an unconstitutional seizure and forfeiture of a vehicle which the government claims was used to transport a contraband narcotic drug possessed with intent to sell in violation of those provisions of the Internal Revenue Code proscribing such possession. 49 U.S.C. §§ 781-782. A suit to recover a vehicle so seized and so forfeited is founded upon a law of Congress to the same extent that a suit to recover duties wrongfully exacted is founded upon a law of Congress. Since the claim in this case is for less than $10,000 the district court had jurisdiction concurrent with that of the Court of Claims. 28 U.S.C. § 1346(a) (2). This being the case the six year statute of limitations in 28 U.S.C. § 2401(a) rather than the two year statute of limitations in 28 U.S.C. § 2401(b) is applicable. Jaekel v. United States, 304 F. Supp. 993 (S.D.N.Y.1969).
The affidavits and answers to interrogatories establish that the motor vehicle owned by the plaintiff was seized on February 21, 1968 by two agents of the Bureau of Narcotics. An agent gave plaintiff a handwritten receipt saying:
"1967 Ford Mustang, New Jersey License MIN-643, was seized by me for violation of the Federal Narcotics Laws, 26 U.S.C. § 781-788. This vehicle was seized from Mr. Alfred Menkarell on February 21, 1968."
Alfred Menkarell is the plaintiff. The reference to 26 U.S.C. §§ 781-788 probably was intended to refer to 49 U.S.C. §§ 781-788. On March 5, 1968 the Acting District Supervisor of the Bureau of ...