                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
AMIR ALI AZABDAFTARI,         )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 09-2166 (RWR)
                              )
EILEEN C. MAYER,              )
                              )
     Defendant.               )
______________________________)


                         MEMORANDUM OPINION

     Plaintiff Amir Ali Azabdaftari filed suit in Superior Court

against Eileen C. Mayer, Chief of Criminal Investigation of the

Internal Revenue Service, challenging under 18 U.S.C. § 983 the

forfeiture of assets from one of his bank accounts carried out

under 18 U.S.C. § 981.   After removing the case to this court,

Mayer filed a motion to dismiss or in the alternative for summary

judgment, arguing, among other things, that the United States is

the proper defendant in this matter,1 and that Azabdaftari has


     1
       The United States is the proper defendant when a plaintiff
seeks the return of forfeited assets under 18 U.S.C. § 983. See
Miller v. Oceanside Police Dep’t, No. 09 CV 2265, 2009 WL
4884225, at *2 (S.D. Cal. Dec. 10, 2009) (noting that “the United
States is the ‘Government’ referenced in section 983"). Because
Azabdaftari’s complaint does not assert claims against Mayer in
her individual capacity, this aspect of Mayer’s motion will be
treated as a motion to substitute the United States as the proper
party defendant and will be granted. See Zinda v. Johnson, 463
F. Supp. 2d 45, 48 (D.D.C. 2006) (granting defendant’s motion to
substitute the United States as the proper party defendant where
“plaintiff’s complaint makes clear that she is suing defendants
in their official capacities” and where the relevant statutes
                               - 2 -

failed to exhaust his administrative remedies.   Because

Azabdaftari has not pled that he exhausted his administrative

remedies by timely filing a claim with the appropriate official,

the government’s motion to dismiss will be granted.2

                            BACKGROUND

     Azabdaftari alleges that the government seized $28,134.26

from his bank account because he was suspected of violating 31

U.S.C. § 5324(a).   That provision prohibits structuring financial

transactions to evade reporting requirements, and 31 U.S.C.

§ 5317(c)(2) provides that property involved in a transaction

structured to evade reporting requirements, in violation of

§ 5324, “may be seized and forfeited to the United States” under

18 U.S.C. § 981(a)(1)(A).   Neither his original complaint nor his




provide that suits seeking the relief sought by the plaintiff
“should be brought against the United States”). Thus, the
defendant will be referred to in this opinion as “the
government.”
     2
       Azabdaftari has moved to strike the motion to dismiss.
Because he demonstrates no basis or good cause to grant such
relief, his motion to strike will be denied and will be treated
instead as an opposition to the government’s motion to dismiss.
In addition, twenty-three days after the government served him by
mail with its motion to dismiss, Azabdaftari moved for leave to
file an amended complaint, a copy of which accompanied his
motion. He was entitled to amend his complaint as a matter of
course within twenty-four days of being served by mail with the
government’s motion. See Fed. R. Civ. P. 15(a)(1)(B), 6(d).
Thus, his motion for leave to file an amended complaint will be
granted, and the government’s motion to dismiss will be treated
as being directed at the amended complaint.
                                 - 3 -

amended complaint alleges that he pursued any administrative

remedies before filing this action.

                             DISCUSSION

     The government moves to dismiss under Federal Rule of Civil

Procedure 12(b)(6).   “A Rule 12(b)(6) motion tests the legal

sufficiency of a complaint[.]”    Browning v. Clinton, 292 F.3d

235, 242 (D.C. Cir. 2002).   In considering a motion to dismiss

for failure to state a claim under Rule 12(b)(6), a court must

construe the complaint in the light most favorable to the

plaintiff, id., and “the court must assume the truth of all well-

pleaded allegations.”   Warren v. District of Columbia, 353 F.3d

36, 39 (D.C. Cir. 2004).   A plaintiff does not need to plead

detailed factual allegations.    Aktieselskabet AF 21. Nov. 2001 v.

Fame Jeans Inc., 525 F.3d 8, 16 (D.C. Cir. 2008) (stating that

“[i]n general, a complaint should simply identify the

‘circumstances, occurrences, and events’ giving rise to the

claim” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3

(2007))).    But, enough facts must be pled to “state a claim to

relief that is plausible on its face.”    Twombly, 550 U.S. at 570.

     If the government initiates a nonjudicial civil forfeiture

proceeding under § 981, it must send written notice to parties

with an interest in the property.    18 U.S.C. § 981(d); 19 U.S.C.

§ 1607(a).   After receiving notice, a person claiming seized

property may contest the forfeiture by filing “a claim with the
                               - 4 -

appropriate official after the seizure.”   18 U.S.C.

§ 983(a)(2)(A).   A claim by an interested party “may be filed not

later than the deadline set forth in a personal notice letter[.]”

18 U.S.C. §§ 983(a)(2)(B).   This terminates the administrative

forfeiture, and the government then has ninety days to file a

civil complaint for judicial forfeiture or return the property.

18 U.S.C. § 983(a)(3).   Failure to exhaust the administrative

remedies under this process warrants dismissing a plaintiff’s

complaint.3   Malladi Drugs & Pharm., Ltd. v. Tandy, 552 F.3d 885,

889 (D.C. Cir. 2009) (holding that appellant’s “legal challenge

fails because [it] did not exhaust its administrative remedies




     3
       Although the government argues that Azabdaftari’s failure
to exhaust his administrative remedies jurisdictionally bars his
suit (Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss
or in the Alternative for Summ. J. at 3-5), “‘[m]otions to
dismiss for failure to exhaust administrative remedies are . . .
appropriately analyzed under Rule 12(b)(6)’” for failure to state
a claim upon which relief may be granted. Hairston v. Tapella,
664 F. Supp. 2d 106, 110 (D.D.C. 2009) (second alteration in
original) (quoting Hopkins v. Whipple, 630 F. Supp. 2d 33, 40
(D.D.C. 2009)); see also Douglas v. Donovan, 559 F.3d 549, 556
n.4 (D.C. Cir. 2009) (noting that “the exhaustion requirement,
though mandatory, is not jurisdictional”). Additionally, “when
Congress does not rank a statutory limitation on [the statute’s]
coverage as jurisdictional, courts should treat the restriction
as nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546
U.S. 500, 516 (2006). Because 18 U.S.C. § 983 does not state
explicitly that its exhaustion requirements are jurisdictional,
they will be treated as non-jurisdictional. But see Valderrama
v. United States, 326 F. Supp. 2d 1333, 1338 (S.D. Fla. 2004)
(holding that plaintiff’s failure to exhaust administrative
remedies by filing a claim with the seizing official under 18
U.S.C. § 983 is a jurisdictional bar to suit).
                                 - 5 -

before filing suit, having neglected to use the mechanism for

obtaining judicial relief provided in the forfeiture statutes”).

     Azabdaftari does not allege in his original complaint, his

amended complaint, or his briefs that he timely filed a claim

with the appropriate official after he received notice of the

seizure.   Azabdaftari has not stated a claim upon which relief

may be granted because he has failed to plead that he exhausted

his administrative remedies.    See United States v. Martin, 460 F.

Supp. 2d 669, 674 (D. Md. 2006) (holding that the defendant’s

“failure to timely file a claim [with the appropriate official]

is a sufficient basis for” denying plaintiff’s motion for return

of forfeited property).

     Azabdaftari argues that his claim is nonetheless “reviewable

by the Court under the provisions of the Administrative Procedure

Act[.]”    (Pl.’s Mot. to Strike at 1.)   The Administrative

Procedure Act (“APA”) waives the government’s sovereign immunity

and provides jurisdiction over an action by an aggrieved party

“seeking relief other than money damages and stating a claim that

an agency or an officer or employee thereof acted or failed to

act[.]”    5 U.S.C. § 702.   However, the APA does not “confer[]

authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief which

is sought.”   Id.   Because 18 U.S.C. § 983 forbids the relief

Azabdaftari seeks unless a plaintiff timely files a claim with
                              - 6 -

the appropriate official, Azabdaftari’s claim is not reviewable

under the APA.

                           CONCLUSION

     Azabdaftari has failed to state a claim for the return of

his forfeited assets because he has not pled that he exhausted

his administrative remedies by timely filing a claim with the

appropriate official after he received notice of the seizure.

Accordingly, the government’s motion to dismiss will be granted.

An appropriate Order accompanies this Memorandum Opinion.

     SIGNED this 27th day of August, 2010.


                              __________/s/_______________
                              RICHARD W. ROBERTS
                              United States District Judge
