(concurring and dissenting)
I respectfully dissent from the results reached by my colleagues on this appeal to the extent that they reverse the dismissal of the complaint against defendant Nelson.
The whole matter has turned into a procedural mess due to the obstinacy of plaintiff’s counsel who admits an expertise in the field of immigration law. If he had followed the designated procedures initially in this case, the matter would have been resolved on the merits a long time ago.
Plaintiff admittedly violated the law when he attempted to smuggle into this country his Canadian girl friend who was excludable because of a criminal record. The seizure by the immigration officials of the tractor cab owned by plaintiff and used to bring the young woman into the country was perfectly proper.
Plaintiff’s counsel did not follow the procedures provided by the regulations to re*1205gain this tractor cab valued at $65,000. He decided that the matter could be taken care of informally by phone calls and a letter to local officials. This was his error.
Local immigration officials informed him-that he was not following proper procedures but, undaunted, he instituted the present lawsuit based on the actions he had taken up to that point. He sued Nelson, the Commissioner of INS, McKinley, the Regional Commissioner of INS, and Ferro, the District Director of INS for Buffalo, alleging that their failure to act promptly on his petition violated his constitutional rights. He further alleged that the regulations do not make available procedures for prompt disposition of petitions for mitigation. A week after filing the lawsuit, he finally followed the proper procedures, but he never amended the substantive allegations of his complaint or brought in the proper parties necessary to obtain the relief sought.
Given a set of facts, it does not require great expertise to know what the proper course of action is under the applicable regulations. A case involving a vehicle with a value of more than $10,000 must be referred to the United States Attorney who, under the regulations, must commence judicial forfeiture proceedings. 8 C.F.R. § 274.12 (1984). Prior to the matter being referred to the United States Attorney for institution of judicial forfeiture proceedings, the plaintiff is entitled to file a petition for mitigation (Section 274.15) with the Attorney General (Section 274.13). If the case has already been submitted to the United States Attorney for institution of judicial forfeiture, the petition for mitigation should be filed with the United States Attorney (Section 274.19(a)). The United States Attorney may request that the regional commissioner submit a report of his investigation as to the merits of the petition (Section 274.19(b)). (There is no indication that such a report was requested in this case.) The United States Attorney then forwards the petition with his recommendation to the Assistant Attorney General, Criminal Division of the Department of Justice, for adjudication (Section 274.-19(c)).
Plaintiff filed his lawsuit on August 3, 1984. On August 8, the . INS referred the matter to the United States Attorney to commence judicial forfeiture proceedings as required by the regulations. On August 10, plaintiff filed his petition for mitigation directly with the United States Attorney, who referred the matter to the Assistant Attorney General, Criminal Division. But the case still went forward on the claim that the local immigration officials and Nelson, as the draftsman of the regulations, were proper defendants, and that the regulations were constitutionally defective. In this posture the lawsuit could never resolve the question of whether the constitutional rights of the plaintiff were violated. The court below granted defendants’ motion for summary judgment and denied the cross-motion by plaintiff for summary judgment.
We now find this court trying to straighten the matter out by dropping certain defendants and suggesting that other defendants be brought in. I daresay an amendment of the substance of the complaint will also be necessary. .
I agree with Judge Kearse that in this case the local officials had no responsibility. The fact that Nelson may have drawn the regulations should not make him a party defendant. It is only the person who has the responsibility of carrying out the duties detailed by the regulations who is the proper party defendant. It is the timing of the action of the Assistant Attorney General that is in question here. It is perfectly clear under the regulations that Nelson had no responsibilities in this case, and, as Judge Kearse properly points out, he can be held liable only if he participated or knowingly acquiesced in the delay. The fact that Nelson was the draftsman cannot be a basis for a finding of knowing acquiescence.
Finally, if the proper procedures had been followed in the first place, we would then be in a position to evaluate the true merits of this case under United States v. Eight Thousand Eight Hundred and Fifty *1206Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).
The judgment of the court below should be affirmed and the plaintiff permitted to institute an action against the proper parties with a proper complaint, so that the matter can be clearly presented for determination to the lower court.