                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


                                 )
RANDY D. MARTIN,                 )
TIANA DUPREE,                    )
                                 )
               Plaintiffs,       )
                                 ) Civil Action No. 09-1747(EGS)
               v.                )
                                 )
MICHELE LEONHART,                )
Acting Administrator,            )
Drug Enforcement Agency,         )
in her official capacity,        )
of Homeland Security,            )
                                 )
               Defendant.        )
                                 )

                         MEMORANDUM OPINION

     This action involves plaintiffs’ request for the return of

$19,800 in U.S. Currency (the “funds”) seized by agents of the

Drug Enforcement Agency (“DEA”) from Plaintiff Tiana Dupree

(“Dupree”) in Washington, D.C. during a random drug search of an

overnight Amtrak train traveling from Miami, Florida to New York,

New York on August 8, 2008.   Pending before the Court is

defendant’s motion to dismiss.   Upon consideration of the motion,

the response and reply thereto, the applicable law, and for the

reasons stated below, the Court concludes that it lacks subject

matter jurisdiction over this action.   Accordingly, the Court

GRANTS defendant’s motion to dismiss.
I.   BACKGROUND

     A.      Initial Seizure of the Funds by the DEA

     On or about August 1, 2008, Plaintiff Randy Martin

(“Martin”) - a New York resident - allegedly went to Florida on

vacation and to look at a car that he was interested in buying

for his girlfriend, Dupree.     Compl. ¶ 10.   Martin brought

approximately $20,000 in U.S. Currency to Florida in order to

purchase the car.    Compl. ¶ 11.   On or about August 8, 2008,

after deciding not to buy the car, Martin asked Dupree - who was

returning to New York – “to bring the money . . . back home to

his safe because he was going to stay in Florida for a few more

days and he wanted the money secured in his safe while he was on

vacation.”    Compl. ¶¶ 15, 17.   After boarding an Amtrak train

headed for New York, Dupree took the money from Martin and

“placed it in her eyeglass case for safekeeping.”      Compl. ¶ 18.

     On or about August 8, 2008, Dupree was awakened by a knock

on the door of her sleeper car by DEA agents conducting a random

drug search on the train.    Compl. ¶ 21.   After inspecting

Dupree’s ticket, the DEA agents searched Dupree’s room.     Compl.

¶¶ 22, 23.    During the course of this search, the DEA Agents

“dumped out the contents of Ms. Dupree’s purse, opened her

eyeglass case, and removed the $19,800 in U.S. currency which was

in the case.”    Compl. ¶ 24.   After being confronted about the

money, Dupree indicated that it belonged to her boyfriend -


                                    2
Martin.    Compl. ¶ 26.   One of the DEA agents then called Martin,

who confirmed that the money belonged to him.          See Compl. ¶¶ 27-

32.   After ending the phone call with Martin, the DEA Agent

purportedly remarked to another DEA agent: “He’s Jamaican.”

Compl. ¶ 33.   The DEA Agent then seized the $19,800 from Dupree’s

eyeglass case, gave Dupree a receipt for the money, apologized

for the inconvenience, and told Dupree to call a number on a

business card he handed her to get the money back.         Compl. ¶ 34.

No arrest was made, nor were any drugs found in connection with

the search of Dupree.     Compl. ¶¶ 7-8.   After Martin called the

telephone number that the DEA agents had provided, he was

informed that he would receive information in the mail regarding

the seized funds.   Compl. ¶ 37.

      B.    Plaintiffs’ Request for Return of the $19,800

      On September 30, 2008, the DEA mailed a Notice of Seizure

(the “Notice”) to Martin and Dupree, as well as their attorney.

See Compl. ¶ 39; see also Def.’s Ex. 1-4, Notices of Seizure.

The Notice lists the seized property as “$19,800 U.S. Currency”

and the owner as “Tania Dupree.”       Def.’s Ex. 1.    The Notice

further states, in relevant part:

       The above-described property was seized by the [DEA]
       for forfeiture pursuant to [21 U.S.C. § 881],
       because the property was used or acquired as a
       result of a violation of the Controlled Substances
       Act . . . . Pursuant to [18 U.S.C. § 983 and 19
       U.S.C. §§ 1602-1619], procedures to administratively
       forfeit this property are underway. You may
       petition the DEA for return of the property

                                   3
      (remission or mitigation), and/or you may contest
      the seizure and forfeiture of the property in
      Federal Court.

Def.’s Ex. 1; see also infra Section II (discussing the statutory

scheme established by Congress in civil forfeiture actions, and

providing an overview of the process for filing (i) a “petition”

for the return of property with the DEA and/or (ii) a “claim” for

the judicial review of the seizure and forfeiture with the DEA).

Plaintiffs received this Notice.       Compl. ¶ 40.1

     On October 10, 2008, counsel for plaintiffs sent the

following letter to the DEA requesting the return of the $19,800

in seized funds (the “October 10, 2008 Letter”):

     I am the attorney representing Ms. Tiana Dupree and
     Randy Martin who on August 8, 2008 had the sum of
     $19,800 taken from them by DEA agents while lawfully
     traveling from Florida to New York. The money was
     seized during an alleged random drug search despite
     the fact that there were no drugs found on my client,
     there was no commission of a crime and the Agent
     could not express any legal basis for the seizure of
     the funds from my clients. There were no arrests and
     no other property was seized.

     I am submitting my clients’ sworn affidavits to
     petition you to return their property forthwith. In
     doing so, we do not waive our right to proceed in any
     other lawful manner to recover the sum in question.
     In the event you have nay [sic] lawful reason for the
     seizure and subsequent forfeiture of my clients’
     money I request that this information be forwarded to


1
     In addition to sending the Notices of Seizure, the DEA also
filed three legal notices in the Wall Street Journal, apprising
potentially interested parties of the seizure and indicating that
November 27, 2008 was the last date to file a claim or petition
for the funds. See Def.’s Ex 9 (Legal Notices dated October 13,
2008, October 20, 2008, and October 27, 2008).

                                   4
      my office immediately. However, as I suspect you
      will agree that the money should be returned to my
      clients’ I would appreciate it if you could forward a
      check made payable to STEVEN M. FEINBERG, ESQ., as
      attorney, to my office address. Thank you for your
      anticipated cooperation.

Def.’s Ex. 10.   The letter was accompanied by sworn declarations

from Dupree and Martin, captioned “Petition for the Return of

Money.”    See Def.’s Ex. 10.

      On October 20, 2008, the DEA mailed a form letter to

plaintiffs, indicating that “[y]our petition for Remission and/or

Mitigation will be ruled on administratively by this office.

Before any decision can be made, your petition must be reviewed

and an investigation may be required.”    Def.’s Ex. 11.   By

letters dated December 26, 2008 and March 12, 2009, plaintiffs’

counsel requested updates regarding the status of his October 10,

2008 Letter requesting the return of funds.    See Def.’s Exs. 13,

16.

      C.    Forfeiture of the Funds

      On March 23, 2009 – while plaintiffs’ October 10, 2008

Letter was still under administrative review – the DEA issued a

Declaration of Forfeiture (the “Declaration”), whereby the

$19,800 in seized funds were forfeited to the United States

pursuant to 19 U.S.C. § 1609.    See Def.’s Ex. 17.2


2
     See Def.’s Ex. 17 (“The [$19,800 U.S. Currency] has been
seized by agents of the [DEA] pursuant to 21 U.S.C. Section 881.
Notice of the seizure has been sent to all known parties who may
have a legal or possessory interest in the property. Also, in

                                  5
     D.   Denial of Plaintiffs’ Petition

     On March 24, 2009, the DEA denied plaintiffs’ petition for

the return of money.   See generally Def.’s Ex. 18.   With regards

to Dupree, the DEA explained that remission or mitigation was

inappropriate because “Ms. Dupree has failed to demonstrate any

interest in the forfeited currency as an owner or a lienholder,

as required by Federal regulation.”   Def.’s Ex. 18 at 2.   Next,

with regards to Martin, the DEA found that he failed to provide

any documentation substantiating his allegation that he was “the

owner of the cash” or “a legitimate source for the seized funds.”

See Def.’s Ex. 18 at 2 (explaining that “[p]ursuant to 28 C.F.R.

§ 9.3(c)(1)(iv), the interest of a petitioner in the property, as

owner or otherwise, must be supported by satisfactory documentary

evidence, for example, employment records, financial statements,

bank statements, or cancelled checks,” and advising that “[i]f

your client is alleging the forfeited currency to be the proceeds

of some transaction, he must then provide credible, verifiable

documentation evidencing the transaction”).   While the letter




accordance with 19 U.S.C. Section 1607, notice of the seizure has
been published and no claim has been filed for the property
within 30 days from the date of last publication of the
advertisement. On this date, I have examined this matter, and
found that there was sufficient information to support the
forfeiture of this property. Therefore, it is hereby declared
that such property is forfeited to the United States pursuant to
19 U.S.C. Section 1609.”).

                                 6
also apprised plaintiffs of their right to file a motion for

reconsideration, no such motion was filed.

     E.     This Action

     On September 15, 2009, plaintiffs - represented by new

counsel – filed suit in this Court alleging violations of 18

U.S.C. § 983, 42 U.S.C. § 1983, as well as the Fourth and the

Fifth Amendments of the United States Constitution.     See Compl.

¶¶ 55-73.   Plaintiffs principally argue that the DEA erred in

failing to initiate judicial forfeiture proceedings, explaining

that their October 10, 2008 Letter to the DEA asserted a claim -

not a petition for remission or mitigation - and that

administrative forfeiture of the seized funds was therefore

inappropriate.    See, e.g., Compl. ¶¶ 45, 56-60;3 see generally

infra Section II (explaining that upon receipt of a notice of

seizure, a claimant may contest the forfeiture in a judicial

forum by filing a claim with the DEA or seek return of the funds

in an administrative forum by filing a petition with the DEA).

Plaintiffs seek, among other things, return of the funds for

defendant’s failure to file a complaint for judicial forfeiture

in a federal district court within 90 days of plaintiffs’ October



3
     See also Pls.’ Opp’n Br. at 3 (“Plaintiffs do not argue now,
nor have they in the past, that they filed a petition for
remission or mitigation. . . . The allegations in the Complaint
and the supporting evidence clearly show that it was Plaintiffs’
intent to file a claim and not a petition for remission or
mitigation.”).

                                  7
10, 2008 Letter.     See generally 18 U.S.C. § 983(a)(3)(B).   On

December 23, 2009, defendant filed a motion to dismiss

plaintiffs’ complaint.    This motion is now ripe for determination

by the Court.

II.   STATUTORY BACKGROUND

      The funds at issue in this case were seized for forfeiture

pursuant to Title 21 U.S.C. § 881(a)(6), which provides that all

funds traceable as proceeds to a violation of the federal

narcotics laws are subject to forfeiture by the United States.

21 U.S.C. § 881(a), (d); see also Def.’s Ex. 1, Notice of Seizure

(“The above-described property was seized by the [DEA] for

forfeiture pursuant to Title 21, United States Code, Section 881,

because the property was used or acquired as a result of a

violation of the Controlled Substances Act[.]”).     Such

forfeitures are governed by the customs laws relating to

forfeiture.     See 21 U.S.C. § 881(d).   Under the customs laws, the

DEA may administratively forfeit goods valued at or less than

$500,000.   19 U.S.C. § 1607.   An administrative forfeiture has

the same force and effect as a final decree and order of

forfeiture in a judicial forfeiture proceeding.      Id. § 1609(b).

The DEA must send written notice to all parties with an interest

in the seized property and publish notice of the seizure and its

intent to forfeit the goods administratively.      Id. § 1607(a); 18

U.S.C. § 983(a)(1).


                                   8
     Once the federal government properly commences a civil

forfeiture proceeding, the claimant has the opportunity to choose

the forum of adjudication.   As discussed below, a claimant may

choose a judicial forum by filing a claim with the DEA or an

administrative forum by filing a petition with the DEA.

     A.   Filing a Claim

      A party seeking to challenge the forfeiture of its property

in a judicial forum must file a claim with the DEA within the

deadline set forth in the notice of seizure or, if the party did

not receive a notice letter, then no later than thirty days after

the final newspaper publication of the notice of seizure.     See 18

U.S.C. § 983(a)(2)(B) (“A claim . . . may be filed not later than

the deadline set forth in a personal notice letter (which

deadline may be not earlier than 35 days after the date the

letter is mailed), except that if that letter is not received,

then a claim may be filed not later than 30 days after the date

of final publication of notice of seizure.”).    A claim “need not

be made in any particular form” and need only identify, under

oath, the property being claimed and the claimant’s interest in

that property.   Id. § 983(a)(2)(C),(D).4   The timely filing of a

claim stops all administrative forfeiture proceedings.    See 21



4
     “A claim shall (i) identify the specific property being
claimed; (ii) state the claimant’s interest in such property; and
(iii) be made under oath, subject to penalty of perjury.” 18
U.S.C. § 983(a)(2)(c).

                                 9
C.F.R. § 1316.76(b).   The claim is then transferred to a United

States Attorney who must initiate a judicial forfeiture action in

a federal district court within ninety days or return the seized

property.   See 18 U.S.C. § 983(a)(3).      In the subsequent civil

forfeiture proceedings, the government bears the burden of

proving, by a preponderance of the evidence, that the property is

subject to forfeiture.     Id. § 983(c)(1).

     B. Filing a Petition

     If the claimant fails to timely file a claim, the property

is administratively forfeited.     19 U.S.C. § 1609.    A claimant

may, however, request remission and/or mitigation of the

administrative forfeiture by filing a petition within thirty days

of receipt of the notice of seizure.       28 C.F.R. § 9.3.   A

petition must include proof of an individual’s interest in the

property and state the facts and circumstances justifying

remission or mitigation.     See Def.’s Ex. 1, Notice of Seizure;

see also 28 C.F.R. § 9.3(c)(1).5       “Any factual recitation or



5
     “All petitions must include the following information in
clear and concise terms: (i) The name, address, and social
security or other taxpayer identification number of the person
claiming an interest in the seized property who is seeking
remission or mitigation; (ii) The name of the seizing agency, the
asset identifier number, and the date and place of seizure; (iii)
A complete description of the property, including make, model,
and serial numbers, if any; and (iv) A description of the
petitioner's interest in the property as owner, lienholder, or
otherwise, supported by original or certified bills of sale,
contracts, deeds, mortgages, or other documentary evidence.” 28
C.F.R. § 9.3(c)(1).

                                  10
documentation of any type in a petition must be supported by a

sworn affidavit.”     Id. § 9.3(c)(2).   Once a petition is received,

a seizing agency investigates its merits and submits a written

report to the Ruling Official.     Id. § 9.3(f).   The Ruling

Official then reviews and considers the report and issues a

ruling.   Id. § 9.3(g).   The DEA has broad discretion in deciding

whether to grant a petition.     See 28 C.F.R. § 9.7(a)(1) (“Whether

the property or a monetary equivalent will be remitted to an

owner shall be determined at the discretion of the Ruling

Official.”).   If the Ruling Official denies the petition, the

petitioner is notified of the reasons for the denial and of the

right to submit a request for reconsideration.      Id. § 9.3(i).     A

request for reconsideration is decided by a different Ruling

Official than the one who ruled on the original petition.       Id.

§ 9.3(j)(2).

III. LEGAL STANDARD

     A motion to dismiss under Rule 12(b)(1) of the Federal Rules

of Civil Procedure tests whether the court has subject matter

jurisdiction over the action.     Zaigang Liu v. Novak, 509 F. Supp.

2d 1, 3 (D.D.C. 2007).     The plaintiff bears the burden of

establishing that the court has subject matter jurisdiction.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).       In

evaluating a motion to dismiss for lack of subject matter

jurisdiction, the court accepts the complaint’s well-pled factual


                                  11
allegations as true and construes all reasonable inferences in

the plaintiff’s favor.    Thompson v. Capitol Police Bd., 120 F.

Supp. 2d 78, 81 (D.D.C. 2000).    Because subject-matter

jurisdiction focuses on the court’s power to hear the claim,

however, the court must give the plaintiff’s factual allegations

closer scrutiny when resolving a Rule 12(b)(1) motion than would

be required for a Rule 12(b)(6) motion for failure to state a

claim.   Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.

2003).   To determine whether it has jurisdiction, the court may

consider materials outside the pleadings.     Alliance for Democracy

v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).

     A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint.     Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002).    A complaint must present “enough facts to

state a claim to relief that is plausible on its face” and “above

the speculative level.”     Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007).   In considering a 12(b)(6) motion, the Court

must construe the complaint “‘liberally in the plaintiff’s

favor,’ ‘accept[ing] as true all of the factual allegations’”

alleged in the complaint.     Aktieselskabet AF 21 November 2001 v.

Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in

original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253

(D.C. Cir. 2008)).   Plaintiffs are entitled to “the benefit of




                                  12
all inferences that can be derived from the facts alleged.”

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

IV.   ANALYSIS

      Defendant argues that because plaintiffs failed to file a

timely claim with the DEA, the agency forfeited the seized funds

through the administrative forfeiture process set forth in the

Civil Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983.

Because the seized funds have already been forfeited to the

United States, defendant argues that the Court lacks jurisdiction

to review the merits of plaintiffs’ complaint.   Plaintiffs,

however, argue that the underlying administrative forfeiture was

improper and that defendant’s argument must therefore be

rejected.   Specifically, plaintiffs contend that because their

October 10, 2008 Letter asserted a claim - not a petition – the

DEA was required to cease administrative forfeiture proceedings

and commence judicial forfeiture proceedings within 90 days or

return the seized funds to plaintiffs.   The threshold issue for

the Court to resolve, therefore, is whether plaintiffs asserted a

claim in their October 10, 2008 Letter to the DEA.   For the

reasons discussed below, the Court concludes that they did not.

      First, the Court is persuaded by the fact that plaintiffs’

captioned their October 10, 2008 Letter as a “Petition for the

Return of Money.”   Def.’s Ex. 10.   Plaintiffs’ letter is not

captioned a “claim”; it does not mention that a “claim” is being


                                13
filed; it does not request judicial review; nor does it seek

transfer to a United States District Court.     See generally Def.’s

Ex. 10.   To the contrary, the October 10, 2008 Letter

“petition[s] [the DEA] to return their property forthwith,” and

purportedly reserves plaintiffs’ right “to proceed in any other

lawful manner to recover the sum in question.”    Def.’s Ex. 10.

While plaintiffs contend that “[h]ad [they] intended their

submission to be construed as a petition for remission or

mitigation, Plaintiffs . . . would not have included information

required specifically for a claim,” such as a “sworn statement,”

Pls.’ Opp’n Br. at 3-4, the Court finds this argument

unpersuasive in light of the fact that “[a]ny factual recitation

or documentation of any type in a petition must be supported by a

sworn affidavit.”   28 C.F.R. § 9.3(c)(2).   Plaintiffs’ counsel is

therefore incorrect in his contention that “a petition for

remission or mitigation need not be accompanied by a sworn

statement.”   Pls.’ Opp’n Br. at 4.

     Second, in response to plaintiffs’ October 10, 2008 Letter,

the DEA notified plaintiffs on October 20, 2008 that it was

construing their “Petition for Return of Money” as a petition for

remission and/or mitigation.   See Def.’s Ex. 11.      Specifically,

the DEA informed plaintiffs, through counsel, that “[plaintiffs’]

petition for Remission and/or Mitigation will be ruled on

administratively by this office.”     Def.’s Ex. 11.   Upon receipt


                                14
of this letter, plaintiffs did not notify the DEA that their

October 10, 2008 Letter had been misconstrued, or that they

wished to proceed with judicial review rather than administrative

review.   Indeed, had plaintiffs informed the DEA upon receipt of

the DEA’s October 20, 2008 Letter that their October 10, 2008

Letter had been misconstrued as a petition rather than a claim,

plaintiffs would have been well within the November 4, 2008

deadline for filing a claim.   Instead of notifying the DEA that

their letters had been construed, however, plaintiffs sent

follow-up letters to the DEA requesting updates “as to the status

of [their] request to have the funds released.”   Def.’s Ex. 13,

16.   Plaintiffs also failed to file a motion for reconsideration

with the DEA after the agency issued its determination that,

among other things, plaintiffs were foreclosed from contesting

the forfeiture judicially because they had failed to file a claim

within the prescribed time.    See Def.’s Ex. 18 at 3.

      Because plaintiffs - who were represented by counsel -

failed to notify the DEA that their petition had been

misconstrued (i.e., that their October 10, 2008 Letter asserted a

claim for judicial review rather than a petition for

administrative review), this Court will not countenance

plaintiffs’ post hoc attempts to recast their administrative

petition as a claim.   See Malladi Drugs & Pharms., Ltd. v. Tandy,

538 F. Supp. 2d 162 (D.D.C. 2008), aff’d on other grounds, 552


                                 15
F.3d 885 (D.C. Cir. 2009) (rejecting the plaintiff’s contention

that its petitions for remission or mitigation of forfeiture were

also claims).   Having carefully reviewed the facts of this case,

the Court concludes that plaintiffs waived their opportunity to

seek relief in a judicial forfeiture action by proceeding with

administrative review by the DEA.    Cf. Malladi Drugs & Pharms.,

Ltd. v. Tandy, 552 F.3d 885, 890 (D.C. Cir. 2009) (“Malladi

elected to forego the legal remedy it seeks here when it chose

the discretionary administrative remedy and allowed the time for

filing a claim under the administrative scheme to pass.    Having

waived its opportunity for judicial forfeiture proceedings during

the administrative process, Malladi may not now attempt to

correct its choice of remedy in federal court.”).

      Accordingly, because plaintiffs did not file a timely claim

with the DEA contesting the forfeiture, the forfeiture occurred

and became final in the administrative process.     See Def.’s Ex.

17.   Under the scheme established by Congress, the filing of a

claim by an aggrieved party is the exclusive means by which a

claimant can have a judicial determination as to the forfeiture’s

validity.6   Because a federal district court has no jurisdiction


6
     A party may also file a motion to set aside an
administrative forfeiture if a person entitled to written notice
of the forfeiture proceeding did not receive the required notice.
See 18 U.S.C. 983(e)(1). In this case, however, plaintiffs do
not argue that they did not receive adequate notice, and
therefore are not eligible to bring such a suit. See Compl. ¶¶
39-40 (“On September 20, 2008, the DEA mailed a Notice of Seizure

                                16
to entertain a lawsuit which is brought by a claimant wholly

apart from the procedure established by Congress, this Court

lacks jurisdiction to review the merits of plaintiffs’ complaint.

See, e.g., McKinney v. DEA, 580 F. Supp. 2d 1, 3-4 (D.D.C. 2008)

(concluding that where the plaintiff received the DEA’s notice of

seizure and failed to timely file a claim, the Court is “without

jurisdiction to review whether the forfeiture was based on a

legal search, as the statute requires, or to order the return of

the asset”); Aquasviva v. DEA, No. 02-3076, 2004 U.S. Dist. LEXIS

16876, at *11 (S.D.N.Y. Aug. 24, 2004)(granting the defendant’s

motion to dismiss for lack of jurisdiction because “the plain

fact is that plaintiff failed to follow the prescribed route to a

judicial determination, and [] cannot now substitute some other

method of proceeding”).7   Defendant’s motion to dismiss is



both to Martin and Dupree. It listed the property as $19,800 in
U.S. currency, the owner as Dupree, and the seizure date as
August 8, 2008. Plaintiffs received the Notices of Seizure[.]”).
7
     Even assuming, arguendo, that the Court has jurisdiction to
review plaintiffs’ constitutional and statutory claims, the Court
concludes that plaintiffs’ failure to raise these claims before
the DEA precludes the Court from considering them in the first
instance. See Malladi Drugs, 552 F.3d at 891-92 (explaining that
because the petitioner “had adequate opportunity to make the DEA
aware of its [] objection but failed to do so, . . . it cannot
[later] challenge the DEA’s action on that ground”); Colon-
Calderon v. DEA, 218 Fed. Appx. 1, 1 (D.C. Cir. 2007) (declining
to consider the petitioner’s constitutional challenge because
“petitioner never raised this contention before the DEA”).
Plaintiffs present no argument to the contrary. See Pls.’ Opp’n
Br. at 5-6 (conceding that plaintiffs did not raise these
arguments before the DEA).

                                17
therefore GRANTED.

V.   CONCLUSION

     For the reasons set forth above, the Court GRANTS

defendant’s motion to dismiss.   The complaint in this action is

hereby dismissed with prejudice for lack of subject matter

jurisdiction.   An appropriate Order accompanies this Memorandum

Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           June 15, 2010




                                 18
