The opinion of the court was delivered by: Thomas I. Vanaskie, Chief United States District Judge.
This civil forfeiture action is before the Court on the Claimant's
motion to dismiss. Claimant, Theresa Lamplugh, contends that this action
was filed beyond the 120 day statute of limitations prescribed by
18 U.S.C. § 924(d)(1). The government asserts that the institution of
an administrative forfeiture proceeding within the prescribed time limit
satisfied the requirement of § 924(d)(1). Because the government's
filing of an administrative forfeiture proceeding within 120 days of
seizure of the property in question is sufficient to satisfy the
statute, Claimant's motion to dismiss will be denied.
This action has its origins in an investigation of the late Harry C.
Lamplugh, who had been engaged in the business of promoting and
conducting gun shows under the name of Borderline Gun Collectors
Association. His wife, Theresa Lamplugh, the Claimant in this action, had
obtained a federal firearms license to buy and sell firearms after Harry
Lamplugh had been advised that he was ineligible to possess a federal
firearms license based on a prior
Suspecting that Harry Lamplugh was in
possession of and dealing in firearms, the government conducted searches
of his residence and his son's residence on May 25, 1994. As a result of
this search, various firearms and ammunition were seized. The firearms
and ammunition ("defendant property") were appraised to have a value of
Section 924(d)(1) of title 18 U.S.C. authorizes the forfeiture of any
firearm or ammunition involved in or used in any knowing violation of the
statute prohibiting possession of a weapon by a convicted felon. On or
about June 30, 1994, the government commenced an administrative
forfeiture proceeding with respect to the 60 firearms and ammunition at
issue in this litigation. The administrative forfeiture proceeding was
duly advertised in a newspaper. On or about August 1, 1994, Theresa
Lamplugh filed her claim to the property in question as well as a bond in
the amount of $2500. No further action on the forfeiture of the property
was apparently taken by the government until August 16, 2000, when this
judicial action was commenced.*fn2
Claimant, in support of her motion, asserts that the government's
"Verified Complaint of Forfeiture, in rem" was filed outside the 120 day
limitations period prescribed by 18 U.S.C. § 924(d)(1). Section
924(d)(1), in pertinent part, states, "[a]ny action or proceeding for the
forfeiture of firearms or ammunition shall be commenced within one
hundred and twenty days of such seizure." Section 924(d)(1) further
provides that "all provisions of the Internal Revenue Code of 1986
relating to the seizure, forfeiture and disposition of firearms . . .
shall, so far as applicable, extend to seizures and forfeitures under
are two types of "actions or proceedings" pertinent to forfeiture of
firearms and ammunition under § 924(d)(1) — —
administrative and judicial.
The dispute here surrounds the judicial forfeiture. The United States
filed its Verified Complaint of Forfeiture on August 16, 2000. Claimant
argues that this action should be dismissed for lack of subject matter
jurisdiction because the judicial forfeiture was untimely, having been
commenced "six years, two months and twenty-two days after the seizure."
(Claimant's Mot. to Dismiss, ¶ 6.)
The issue presented by the Claimant requires the interpretation of the
final sentence of § 924(d)(1), which reads: "[a]ny action or
proceeding for the forfeiture of firearms or ammunition shall be commenced
within one hundred and twenty days of such seizure." By using the phrase
"[a]ny action or proceeding," did Congress mean "every action or
proceeding," or "either action or proceeding?" In other words, in order to
satisfy the requirements of the statute, is it necessary for the
government to initiate both administrative forfeiture and judicial
forfeiture within one hundred and twenty days of the seizure, or is it
sufficient to bring only the administrative forfeiture action within the
required time limit, thus tolling the statute for the purposes of a later
action in court?
Although sparse, the reported case law interpreting the limitations
provision in 924(d)(1) preponderates in favor of the government's
position. In this regard, there are four district court decisions that
have dealt with this specific issue. Three of the courts found that the
language of 924(d)(1) requires only the institution of the administrative
forfeiture within the 120 day time period, while one court found that the
statute requires the filing of both the administrative and judicial
forfeiture actions within the 120 day period. The four decisions will be
reviewed in the chronological order in which they were decided.
In United States v. Fourteen Various Firearms, 889 F. Supp. 875, (E.D.
Va 1995), the court, faced with the identical issue, reached a contrary
conclusion. In that case, the firearms were seized on May 5, 1994. Id. at
876. On June 30, 1994, the United States issued a notice of an
administrative forfeiture proceeding concerning the firearms. Id. The
United States filed the Complaint for forfeiture on February 3, 1995.
Id. Claimants moved to have the Complaint dismissed pursuant to
Fed.R.C.P. 12(b)(1) and 12(b)(6). For the
purposes of the 12(b)(1) argument, claimants asserted that "because the
seizure occurred on May 5, 1994, . . . the statute required the United
States to file its Complaint in this court on September 2, 1994. Thus,
the claimants argue, the United States was about five months tardy." Id.
at 876-77. The court agreed, concluding that "the forfeiture action was
untimely filed; that, therefore, the court has no jurisdiction; and that
the case should be dismissed." Id. at 877. In support of this conclusion,
the court offered the following rationale:
Here the language [of § 924(d)(1)] is plain and it
is unambiguous. The term "[a]ny action or proceeding"
clearly includes administrative and judicial
proceedings. The common meaning of the word proceeding
includes both administrative and judicial litigation.
The word "action" also has special meaning in the
judicial context because the Federal Rules of Civil
Procedure define as civil actions all the judicial
proceedings brought in federal courts which, of
course, is where judicial actions seeking forfeiture
must be initiated. Thus, any administrative proceeding
or judicial action for the forfeiture of the defendant
fourteen firearms had to begin within 120 days of the
date they were seized, May 5, 1995. The judicial
action respecting these firearms was not filed within
this time limit. Thus, the action must be dismissed.
An examination of sources other than the plain
language of § 924(d)(1) also supports dismissal.
For example, § 924(d)(1) provides that "all
provisions of the Internal Revenue Code . . . relating
to the seizure, forfeiture, and disposition of
firearms . . . shall, so far as applicable, extend to
seizures and forfeitures under the provisions of this
chapter . . . ." One such provision is
26 U.S.C. § 7325. As the United States and the
opinion in United States v. Twelve Miscellaneous
Firearms, 816 F. Supp. 1316 (C.D. Ill. 1993) point
out, in this case which involves goods valued at
$100,000 or less, 26 U.S.C. § 7325 requires an
initial administrative procedure to determine whether
anyone claims an interest in the goods to be
forfeited. Judicial proceedings should then be
instituted only if someone claims an interest in the
goods. Nothing in § 924(d)(1) or the Internal
Revenue Code, however, provides that commencement of
the administrative procedure tolls the 120-day period
in which "any action or proceeding for the forfeiture
of firearms" must be commenced.
In conclusion, the record points to nothing which
would render ambiguous the plain language
interpretation of "any action or proceeding" to
include both administrative proceedings and judicial
actions. The government, which itself relies on a
plain-language argument, cites much support for the
proposition that "any" includes "administrative," and
the court finds this support persuasive. But the
government seems to miss entirely the point that "any"
also includes "judicial." Thus, the provision at issue
would not lose its meaning if it were changed to
read, "Any administrative or judicial action or
proceeding for the forfeiture of firearms or
ammunition shall be commenced within  days of
such seizure." Here, the judicial action was not
commenced within 120 days, and this court therefore
has no jurisdiction over the subject matter of the
Id. at 877-78.
In reaching its conclusion, the Court drew a parallel between the 120
day requirement of § 924(d)(1) and the 30 day requirement for filing
a claim set forth in 26 U.S.C. § 7325(2). In extending the logic
of the Twelve Miscellaneous Firearms court to the 30 day requirement, the
Ironically, the government's logic could be applied to
26 U.S.C. § 7325(2) to allow a person claiming an
interest in seized goods to file his or her claim at
any time. That section requires "any person" claiming
seized goods to "make such claim within 30 days."
Thus, as long as someone makes a claim within the 30
days, someone else can make a claim anytime after that
period. For it is the same logic that reasons, as long
as an administrative proceeding is commenced within
120 days of the seizure, a judicial proceeding may be
commenced any time after that time period. Finding
this logic faulty, this court disagrees with Twelve
Miscellaneous Firearms, 816 F. Supp. at 1317. . . .
Under the plain and strict interpretation of the
statute, any action or proceeding for forfeiture, not
just an administrative one, must be commenced within
120 days of seizure.
There are two other district court opinions that deal with the issue
surrounding the 120 day requirement of 18 U.S.C. § 924(d)(1). They
both agree with the first district court's ruling discussed in this
opinion — that the commencement of an administrative forfeiture
proceeding within 120 days of seizure of the property in question tolls
the statute for the purposes of the judicial forfeiture.
In United States v. Twelve Firearms, 16 F. Supp.2d 738, 740 (S.D. Tex.
1998), the District Court of Texas was faced with a situation similar to
that presented here. Administrative forfeiture proceedings were commenced
approximately one month after the property was seized. About seven months
later, a judicial in rem action was brought. Observing that there were
conflicting decisions from the Central District of Illinois and the
Eastern District of Virginia, the Court first determined that "the
meaning of the word `any' in § 924(d)(1) is ambiguous." Id. at 741.
The court thus examined the forfeiture statute as a whole to determine
the most reasonable construction.
The court first found that "if Congress had intended that the time
limit provided in § 924(d)(1) should always apply to the filing of a
judicial complaint for forfeiture of firearms, even when an
administrative proceeding has also been initiated, it could have easily
specified so in the statute, as it did in 21 U.S.C. § 888(c) with
respect to drug-related forfeitures." Id.*fn4 The court then reasoned
that "an interpretation of 924(d)(1) that would require the United States
to initiate both administrative and judicial forfeiture proceedings
within the same brief time period would defeat the purpose of simplified
administrative proceedings." Id. The Twelve Firearms court thus concluded
that the Eastern District of Virginia ruling was not persuasive, and
interpreted § 924(d)(1) to require only that an administrative
forfeiture be brought within 120 days of seizure of the property.
The fourth and final case which interprets the 120 day requirement of
924(d)(1) is another Central District of Illinois case, United States v.
Miscellaneous Firearms, Explosives, Destructive Devices, and Ammunition,
150 F. Supp.2d 988 (C.D. Ill. 2001). In Miscellaneous Firearms, the
seizure occurred on August 11, 1998, and the forfeiture action was filed
in court on February 8, 2000. Id. at 991. The claimant
asserted lack of subject matter jurisdiction because the judicial
forfeiture was filed well after the 120 day period had expired. Id. The
government argued that it had satisfied § 924(d)(1) by initiating an
administrative forfeiture proceeding pursuant to 26 U.S.C. § 7325
within the necessary 120 days. Id. After giving a brief summary of the
three other relevant district court opinions, the Miscellaneous Firearms
court decided, "the more appropriate course is to hold that a forfeiture
action is timely as long as the Government commences at least an
administrative action within 120 days of the seizure of the property."
Id., 992. The court pointed out:
Claimant asserts that if § 924(d)(1) were
interpreted so that the initiation of administrative
proceedings tolls the 120 day statute of limitations,
the Government would have no limitations on when it
had to file a judicial action. Nevertheless, the
Government would still have to file some action,
administrative or judicial, within the 120 day period
pursuant to § 924(d)(1). Moreover, if Congress had
intended that the statutory limitations period should
apply to a judicial forfeiture complaint even when an
administrative action has been commenced, it could
have specifically indicated so as it has in other
Miscellaneous Firearms, 150 F. Supp at 992-93. (citing Twelve Firearms,
16 F. Supp.2d at 471.)
I find the reasoning of the two decisions from the Central District of
Illinois and the decision of the Southern District of Texas more
persuasive than the Eastern District of Virginia ruling. In this case, an
administrative forfeiture was mandated. It makes little sense to require
the government to initiate both an administrative proceeding and a
judicial forfeiture action within 120 days of seizure of the property.
Under the interpretation adopted by the Eastern District of Virginia, the
government may have to file an action in court before the deadline for a
claimant to file a claim and bond. As pointed out in the Southern
District of Texas decision, "the purpose of administrative forfeiture
proceedings is to provide, if possible, a mechanism for the government and
private parties to resolve their forfeiture-related disputes without the
need for judicial actions." Twelve Firearms, 16 F. Supp. 2d. at 741. The
administrative process is promoted by interpreting § 924(d)(1) to
mean that either an administrative proceeding or a judicial action must
be brought within 120 days of seizure of the property. Because the
government initiated the administrative forfeiture process in a timely
manner, subject matter jurisdiction over this action is not lacking.
Accordingly, the Claimant's motion to dismiss will be denied.*fn5 An
appropriate Order follows.
NOW, THIS DAY OF FEBRUARY, 2002, for the reasons set forth in the
foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Claimant's Motion to Dismiss (Dkt. Entry 16) is DENIED.
2. A telephonic status conference will be conducted on Monday, March
11, 2002 at 8:30 a.m. Counsel for plaintiff is responsible for arranging
the call to (570) 207-5720, and all counsel should be ready to proceed
before the undersigned is contacted.