United States v. McGlory, 202 F.3d 664 (3d Cir. 02/01/2000)

[1] U.S. Court of Appeals, Third Circuit


[2] No. 97-3057


[3] 202 F.3d 664, 2000


[4] February 01, 2000


[5] UNITED STATES OF AMERICA
v.
REGINALD MCGLORY, APPELLANT


[6] On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 89-cr-00144) District Judge: The Honorable D. Brooks Smith


[7] Michael A. Young (Argued) 165 Christopher Street New York, NY 10014 Attorney for Appellant Mary Houghton Assistant United States Attorney Harry Litman (Argued) United States Attorney Bonnie R. Schlueter Assistant United States Attorney 633 United States Post Office and Courthouse Pittsburgh, PA 15219 Attorneys for Appellee


[8] Before: Sloviter and Alito, Circuit Judges, Alarcon, Senior Circuit Judge* * Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation when this case originally was argued April 5, 1999. Before: Becker, Chief Judge, Sloviter, Mansmann, Greenberg, Scirica, Nygaard, Alito, Roth, Mckee, Rendell, and Barry, Circuit Judges


[9] The opinion of the court was delivered by: Sloviter, Circuit Judge


[10] Originally Argued April 5, 1999


[11] Argued en banc November 8, 1999


[12] (Filed February 1, 2000)


[13] OPINION OF THE COURT


[14] The issue before the en banc court in this case is whether the appellant Reginald D. McGlory received constitutionally adequate notice for the administrative forfeiture of certain property seized by officers of the Drug Enforcement Administration ("DEA").


[15] McGlory was arrested, tried, convicted, and sentenced to life imprisonment for various drug and firearm offenses. Incident to his arrest various of his property was seized and most of the seized property, but apparently not all, was subjected to administrative or judicial forfeiture by the DEA. McGlory first challenged the forfeiture byfiling a motion for return of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. Before we can consider the adequacy of the particular administrative forfeiture notices that are the subject of this appeal,*fn1 we must decide whether the District Court had jurisdiction to consider McGlory's Rule 41(e) motion. Only if it had can we consider the important, albeit narrow, issue whether adequate notice of administrative forfeiture proceedings is provided to a prisoner who is in local detention facilities by mailing the notices to an office of the United States Marshals Service.


[16] I.


[17] On September 8, 1989, DEA agents and local Pittsburgh officers arrested McGlory for conspiracy to possess heroin with intent to distribute. At that time, and pursuant to search warrants, the officers seized property, including cash, from McGlory's apartment at 236 South Negley Avenue in Pittsburgh, Pennsylvania, his mother's home at 4267 Bryn Mawr Road in Pittsburgh, Pennsylvania, and his wife's residence at 285 Suncrest Drive in Verona, Pennsylvania. On September 15, 1989, the Magistrate Judge ordered that McGlory be detained by the United States Marshals Service pending trial. By arrangement between federal and state authorities, federal pretrial detainees are often housed in state detention facilities.


[18] McGlory was indicted by a federal grand jury on October 4, 1989. He was charged with possession of a firearm after having been convicted of a felony, conspiracy to distribute heroin, and possession of heroin with intent to distribute. McGlory pled not guilty, and the court ordered a trial by jury to begin December 11, 1989, which was later continued to February 20, 1990.


[19] On December 13, 1989, the government filed a superseding indictment which added additional criminal charges against McGlory. McGlory was arraigned on the superseding indictment on December 21, 1989. He again pled not guilty to each charge. McGlory's trial began on April 25, 1990. On May 16, 1990, the jury returned its verdict finding McGlory guilty of each of the charges set forth in the superseding indictment.


[20] McGlory was sentenced on February 11, 1991 and was remanded to the custody of the Bureau of Prisons less than two weeks later. He therefore remained in the custody of the United States Marshals Service from the date of his arrest on September 8, 1989 until February 22, 1991, almost all of that time as a pretrial detainee. McGlory has stated that during this time he was housed in various pretrial detention facilities, but neither he nor the government introduced evidence of the facilities in which he was confined or the dates of his confinement at each facility. This court has reviewed the record of McGlory's criminal trial and finds references to McGlory's initial detention on September 11, 1989 and thereafter on December 11, 1989 in Hancock County Jail, West Virginia, which suggests that he was detained there during that period. This encompasses the relevant period for the purpose of this appeal. We note other references that suggest that from approximately May 18, 1990 until at least August 2, 1990 he was housed in Fayette County Jail, Uniontown, Pennsylvania. By November 9, 1990, he had been moved to the Ohio County Jail in Wheeling, West Virginia. Since February 22, 1991, he has been in a federal prison designated by the Bureau of Prisons serving his term of life imprisonment. See 18 U.S.C. S 3621(a) and (b).


[21] Before McGlory's criminal trial began, and during the time McGlory was in the custody of the United States Marshals Service, the DEA initiated administrative forfeiture proceedings regarding the property covered by DEA seizure numbers 52425 ($8,800 cash), 65613 (assorted clothing), 65615 (Louis Vuitton luggage), *fn2 66651 (Louis Vuitton luggage/briefcase), 65323 (miscellaneous jewelry), and 67065 (cellular phone).*fn3


[22] The DEA provided notice of these administrative forfeiture proceedings by three methods. One was by published notice in a newspaper of general circulation. The DEA also sent notice by certified mail, return receipt requested, to McGlory's last known address at 236 S. Negley Avenue, Pittsburgh, Pennsylvania, and his mother's residence at 4267 Bryn Mawr Road, Pittsburgh, Pennsylvania. Finally, the DEA sent notice by certified mail, return receipt requested, addressed to McGlory to or in care of the United States Marshals Service at the federal courthouse located at 7th and Grant Street, Pittsburgh, Pennsylvania. Those notices were mailed between September 26, 1989 and November 15, 1989. McGlory claims that he received none of these notices. The government has made no attempt to show otherwise.


[23] McGlory did not take steps for the return of the property seized until April 11, 1994 when he filed a pro se motion under Rule 41(e) for the return of the seized property. This was after the completion of the criminal trial proceedings on February 11, 1991. On February 3, 1995, the District Court referred McGlory's Rule 41(e) motion for the return of the seized property to a Magistrate Judge for a report and recommendation. While the matter was pending, this court decided United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), another challenge by McGlory to different forfeitures, where we held that the notice given to McGlory in two of three judicial forfeiture proceedings did not satisfy due process. On December 17, 1996, the Magistrate Judge filed his report recommending that McGlory's Rule 41(e) motion be denied without prejudice to the judicial forfeiture actions. On December 30, 1996, before the District Court ruled on the Report and Recommendation, McGlory's counsel filed a motion for permission to file an amended Rule 41(e) motion and to stay any further proceedings on McGlory's pro se Rule 41(e) motion.


[24] On January 3, 1997, the District Court determined that the Magistrate Judge "correctly denied the Rule 41(e) motion" and ordered that "the plaintiff 's Rule 41(e) motion is dismissed without prejudice to the pending civil forfeiture actions." United States v. McGlory, No. 89-144, Slip op. at 1, 4 (W.D. Pa. Jan. 3, 1997). The court opined that "[t]he administrative forfeiture proceedings did not suffer from the same defective notice problem as the judicial forfeiture proceedings, see United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), since petitioner was personally served with notice of those actions." Id. at 2 (emphasis added). The court did not explain what constituted the "personal service" on McGlory to which it referred, nor did it expressly rule on McGlory's motion to file an amended Rule 41(e) motion.


[25] On January 13, 1997, McGlory, through counsel, filed a motion for reconsideration of the January 3, 1997 order denying his Rule 41(e) motion. On January 14, 1997, he filed a notice of appeal from that same order without waiting for any order from the District Court. We stayed the appeal pending resolution of the motion for reconsideration, which the District Court denied on September 22, 1998, when it also adopted the Magistrate Judge's Report and Recommendation on a wide range of issues relating to the forfeitures. Both parties assume that we have jurisdiction to review the District Court's order of September 22, 1998. We do not. McGlory only appealed the January 3, 1997 order.


[26] The Federal Rules of Civil Procedure do not specifically refer to a motion to reconsider but such motions, iffiled within ten days of judgment, are generally treated as motions to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. See Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986); Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir. 1992). We therefore analyze McGlory's motion to reconsider, which was timely, as though he had filed it under Rule 59(e).


[27] Federal Rule of Appellate Procedure 4(a) provides that a notice of appeal filed before the disposition of one of the motions specified in Rule 4(a)(4)(A), including a Rule 59(e) motion, will become effective upon entry of the order disposing of the motion. Because McGlory filed his notice of appeal from the court's January 3, 1997 order while the Rule 59(e) motion was pending, the notice of appeal became effective on September 22, 1998 -- the date the District Court entered its order denying that motion. See Fed. R. App. P. 4(a)(4)(B)(i). However, in order to contest the denial of a Rule 59(e) motion, a new or amended notice of appeal must be filed. Thus, when the District Court denied McGlory's Rule 59(e) motion on September 22, 1998, McGlory could proceed with his appeal of the January 3, 1997 order denying his Rule 41(e) motion without further filing, but if he wanted the appeal to encompass any challenge to the order of September 22, 1998, he was required to file an amended notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii). He failed to do so.


[28] Patently, McGlory's original notice of appeal from the January 3, 1997 order could not confer jurisdiction over the District Court's September 22, 1998 order denying reconsideration. See United States v. Rivera Construction Co., 863 F.2d 293, 298 (3d Cir. 1988) ("However, where the order or judgment upon which the appellant seeks review is neither directly nor indirectly referred to in the notice of appeal, then the issue is not fairly raised and the Court of Appeals does not acquire jurisdiction.") (internal quotation omitted). We therefore must limit our review to the merits of the January 3, 1997 order denying McGlory's Rule 41(e) motion. It follows that the District Court's disposition of certain issues (such as laches) in its Memorandum Order of September 22, 1998, adopting the Report and Recommendation of the Magistrate Judge, is not properly before us.


[29] II.


[30] The government states in its brief that "[t]he district court may have lacked subject-matter jurisdiction over the entire claim." United States Brief at 19. As we understand the government's position, it is that jurisdiction may be lacking both because McGlory's challenge is to an administrative forfeiture and because McGlory's motion was filed after the completion of the underlying criminal proceedings. We have not previously considered whether a district court lacks jurisdiction over a Rule 41(e) motion on either of these grounds.


[31] Rule 41(e) provides:


[32] A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant. . . . Fed. R. Crim. P. 41(e).


[33] McGlory's Rule 41(e) motion requested that the government return property seized from him and forfeited by the DEA in administrative and judicial proceedings,*fn4 as well as property seized from him for which no forfeiture proceedings had been instituted and for which the government has failed to provide an accounting.


[34] The civil forfeiture of property that constitutes the proceeds of drug transactions is authorized by 21 U.S.C. S 881(a).*fn5 When the seized property is $500,000 or less, the government may use the administrative forfeiture process governed by the customs laws; this process entails no judicial involvement. See 19 U.S.C. S 1607;*fn6 21 U.S.C. S 881(d).*fn7 The government is required to publish notice of its intent to forfeit the property once a week for three weeks and to send written notice to any party known to have an interest in the property. See 19 U.S.C.S 1607(a). If a claimant files a claim and a cost bond within 20 days after the first publication, the administrative process is halted and the seizing agency must turn the matter over to the United States Attorney to commence a judicial forfeiture proceeding, see 19 U.S.C. S 1608, which is the procedure automatically followed for property valued over $500,000. See 19 U.S.C. S 1610. If a claimant fails to file the bond to contest the forfeiture, the seizing agency will make a declaration of forfeiture and title will vest in the United States. See 19 U.S.C. S 1609(a). This administrative declaration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. See 19 U.S.C. S1609(b).


[35] A district court ordinarily lacks jurisdiction to review the DEA's administrative forfeiture proceedings. See Linarez v. United States Dep't of Justice, 2 F.3d 208, 212 (7th Cir. 1993) ("[O]nce the government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the district court loses jurisdiction to resolve the issue of return of property."). However, "the federal courts have universally upheld jurisdiction to review whether an administrative forfeiture satisfied statutory and due process requirements." United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993) (citing cases).


[36] Some courts have found equity jurisdiction appropriate to review a claimant's challenge to the sufficiency of the notice on the theory that a claimant who received inadequate notice lacked an adequate remedy at law. See United States v. Claggett, 3 F.3d 1355, 1356 (9th Cir. 1993) (reasoning that "[i]f notice of the pending forfeiture was inadequate, . . . then the forfeiture proceeding was never available to [the claimant] in any meaningful sense."); Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 17 (1st Cir. 1993) ("Whereas most challenges to forfeiture would be foreclosed by . . . failure to utilize [the statutory mechanism], courts have entertained challenges to the adequacy of notice, reasoning that the mechanism is not available to a plaintiff who is not properly notified of the pending forfeiture.").


[37] Further, those courts which have allowed limited judicial review of an administrative forfeiture proceeding on due process grounds have also ruled that a Rule 41(e) motion filed after criminal proceedings have terminated is an acceptable means of obtaining review. For example, the Court of Appeals for the First Circuit has held that"[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint." United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (internal quotation omitted). Other courts have agreed. See Weng v. United States , 137 F.3d 709, 711 n.1 (2d Cir. 1998) (same); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996) (same); Woodall, 12 F.3d at 794 n.1 (holding that a Rule 41(e) motion filed by a pro se plaintiff after criminal proceedings have ended should be liberally construed as seeking to invoke the proper remedy); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987) (holding that a district court has jurisdiction over a motion to return property styled as a Rule 41(e) motion, and should treat such motion as a civil equitable proceeding).


[38] We find the reasoning of these cases persuasive and now hold that a district court has jurisdiction to consider a claim that a person received inadequate notice of completed administrative forfeiture proceedings, notwithstanding that the claim was styled as a Rule 41(e) motion andfiled after criminal proceedings had been completed. Accordingly, we conclude that the District Court had jurisdiction to consider McGlory's claim that he received inadequate notice of the DEA's administrative forfeiture proceedings.


[39] III.


[40] We thus turn to the narrow issue before us on this appeal: whether a pretrial detainee in custody of the Marshals Service has a due process right to have notice of administrative forfeiture proceedings mailed by the forfeiting agency directly to the pretrial detainee at the institution where s/he is being housed. The procedure followed by the DEA in this case, and apparently its general practice, was to mail a notice addressed to the detainee to or care of the Marshals Service at its office in the Pittsburgh courthouse, a practice that McGlory contends does not comport with due process.


[41] The government argues that due process was satisfied by sending the notices to the Marshals Service because under the Service's standard office procedure "any correspondence addressed to a person in custody . . . [was] forwarded . . . to the intended recipient, at his place of confinement, by first class mail, postage prepaid." Declaration of Gary Richards, Chief Deputy, United States Marshals Service, App. at 104. McGlory argues, in contrast, "that in order to satisfy constitutional requirements, the DEA was required to address the certified mail containing the notices to [McGlory] at the prison where the government was confining him." McGlory's Reply Br. at 7-8; see also McGlory's Opening Br. at 19-20.*fn8 Thus the parties are joined on the issue whether the government has fulfilled its responsibility under the Due Process Clause to give reasonable notice under the circumstances by relying on the Marshals Service to forward notice to the detainee when the government, in whose custody the detainee is committed, is uniquely well situated to ascertain the detainee's whereabouts.


[42] The District Court did not meet this issue directly in its order of January 3, 1997, the only order properly before us, as it found that McGlory was personally served with notice of the administrative forfeitures. McGlory has consistently maintained that he was not personally served; further, even the government does not contend that McGlory was "personally served" (the language used by the District Court) by delivery to him. Although the DEA's notices were sent to the Marshals Service certified mail, return receipt requested, the Marshals Service allegedly remailed them by first class mail to McGlory at the prison where he was detained. As previously noted, the government has not produced any return receipts signed by McGlory.


[43] The statute governing administrative forfeitures requires, in addition to notice by publication, "[w]ritten notice . . . to each party who appears to have an interest in the seized article." 19 U.S.C. S 1607(a). That this notice must be one that satisfies the Due Process Clause is beyond peradventure. A half century ago, the Supreme Court declared that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).


[44] Twenty-three years later, in Robinson v. Hanrahan, 409 U.S. 38 (1972), the Court addressed the question whether a notice of forfeiture, mailed to a prisoner's home address by the government entity in whose custody the prisoner was held, was constitutionally sufficient. In a brief, per curiam opinion, the Court, repeating the language from Mullane quoted above, held that it was not:


[45] In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was `reasonably calculated' to apprise appellant of the pendency of the forfeiture proceedings. Id. at 40.


[46] In so ruling, the Court suggested that the notice provided "with respect to an individual whose name and address are known or easily ascertainable," id., must be such notice that can be put to practical use. It cited its earlier decision in Covey v. Town of Somers, 351 U.S. 141 (1956), where it held that even mailing of a notice of foreclosure was inadequate if the individual involved was incompetent and without the protection of a guardian. Consistent with the principle enunciated in these cases, the Court stated in Mennonite Board of Missions v. Adams, 462 U.S. 791, 800 (1983), that "[n]notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascertainable." (emphasis omitted).


[47] We took guidance from these cases in United States v. $184,505.01 in U.S. Currency, 72 F.2d 1160 (3d Cir. 1995), a case involving an earlier set of forfeitures of other of McGlory's property. In that case, the government sent notices to McGlory's last known address but made no attempt to reach him at his place of confinement. We held this attempt inadequate under Robinson and Mennonite Board, stating, "McGlory argues, in our view persuasively, that Robinson and Adams together required that the government at least make an attempt to serve him with notice of the forfeiture proceedings in prison." Id. at 1163 (emphasis added). Robinson alone should be dispositive of the issue in this case.


[48] The government cites no authority, and we are aware of none, that suggests that the forfeiting agency may delegate its responsibility by mailing notice to the Marshals Service in Pittsburgh when the forfeiting agency is aware that the intended recipient is confined elsewhere. Even assuming arguendo that mailing the notices to the Marshals Service is more likely to reach the prisoner than mailing them to his last known address, the defect in $184,505.01, it is still inadequate when the government department or agency responsible for giving notice, here the DEA, knows or can quickly and easily obtain the place where the prisoner is confined.


[49] The constitutional imperative derived from Mullane and Robinson and their progeny plainly suggests that in order to give notice that meets the requirement of due process, the agency responsible for sending notice must, at least in the first instance, address and direct notice to the detainee at his place of confinement. This hardly imposes an onerous burden as the DEA did in fact mail notices to McGlory. Its deficiency was in not mailing them to McGlory's place of confinement. Rather than the two step process followed here, which entailed mailing McGlory's notices to the Marshals Service in Pittsburgh and relying on it to remail them to McGlory at the institution where he was then detained, the DEA could have ascertained McGlory's whereabouts at the relevant time from the Marshals Service (which acts as the locator for all persons in federal custody) and mailed its notices to him directly.


[50] It is not a novel proposition to hold that due process requires that notice to prisoners be directed and mailed to the prisoner where detained. Numerous decisions by other courts of appeals so hold. See, e.g., Weng v. United States, 137 F.3d 709, 714 (2d Cir. 1998) ("Absent special justifying circumstances, the least that can be asked . . . is that [the forfeiting agency] determine where the claimant is detained and send the notice to the right institution."); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996) ("When the government is aware that an interested party is incarcerated, due process requires . . . an attempt to serve him with notice in prison."); Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1161 (2d Cir. 1994) ("[I]f the DEA had desired to give [claimant] actual notification, a simple call to the Bureau of Prisons would have sufficed to reveal where [he] was serving his sentence."). Cf. United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998) (rejecting due process challenge when notice was sent, inter alia, to institution where claimant was confined).


[51] The government also argues that because pretrial detainees are often moved between detention facilities and McGlory could have been moved after the DEA ascertained his whereabouts and sent the mail, "sending notice via the Marshals Service was the most reasonable and efficient means available for the DEA to provide McGlory with actual notice of its administrative actions." United States brief at 23. Even if we assume that the Marshals Service actually followed its policy and remailed the notices, and the government introduced no such evidence, using the Marshals Service as a conduit for forfeiture notices may exacerbate rather than cure the problem it was designed to solve. McGlory could have been moved after the Marshals Service itself sent the mail. And adding the Marshals Service in the chain of mailers duplicates the number of agencies handing the mail, thereby increasing the possibility of error, and doubles the time until his receipt which is hardly a more reasonable attempt at service than mailing the notices directly to the detainee in thefirst place.


[52] There is no suggestion in this case that McGlory was moved about with such rapidity that it would not have been possible for mail to catch up with him. All of the administrative forfeiture notices at issue here were mailed between September 26 and November 15, 1989. What little record evidence there is suggests that McGlory was not moved during this time and that at least the U.S. Attorney's office knew where McGlory was for at least part of that time. See Case Information Reports filed by U.S. Attorney William Conley on October 4, 1989 and December 11, 1989, listing McGlory's place of confinement as Hancock County Jail.


[53] Moreover, the DEA did not even make an attempt to reach him at his place of confinement, as we held was required in $184,505.01, 72 F.3d at 1163. Due process does not require an infallible method of giving notice. But before relying on the Marshals Service policy, which apparently failed in these six instances, the DEA had at hand a method more "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane, 339 U.S. at 314. As the Supreme Court in Mullane stressed, "when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." 339 U.S. at 315. One who was "desirous of actually informing" McGlory would have taken the time to ascertain the easily ascertainable fact of his whereabouts and would, at the least, have directed the notices to him at that address."*fn9


[54] We thus hold that, at a minimum, due process requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement. Whether anything more is required is not presently before us in this appeal.


[55] IV.


[56] For the reasons set forth we will vacate the District Court's order of January 3, 1997 granting summary judgment to the government with regard to DEA seizure numbers 52425, 65613, 65615, 66651, 65323 and 67065 and remand to the District Court for further proceedings consistent with this opinion.*fn10


[57] ALITO, Circuit Judge, dissenting:


[58] I dissent from the judgment of the court and from part III of the court's opinion, which concerns the constitutionality of the notice of forfeiture that was provided in this case. I cannot agree with the majority's decision on this issue because it seems to me to be plainly inconsistent with the legal rule on which the majority purports to rely. According to the majority, "due process requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture must be mailed to the detainee at his or her place of confinement." Maj. Op. at 16-17. That is precisely what may well have happened in this case, and yet the majority holds that the manner in which notice was given here violated due process.


[59] In the majority's view, the following procedure should have been used. An employee of the Drug Enforcement Administration (a component of the Department of Justice) should have ascertained from the United States Marshals Service (another component of the Department of Justice) where McGlory was held at the various times in question*fn11 and then sent the notices of forfeiture to McGlory at those locations by first-class mail. Instead, this is what happened. An employee of the DEA sent the notices to the Marshals Service, which had legal custody of McGlory, knew his exact location at all times, and has extensive experience and responsibilities relating to the service of process. The notices were received by the Marshals Service (the DEA produced certified mail receipts for all of the notices at issue), and, if the Marshals Service followed its standard practice, the Marshals Service forwarded the notices "to the intended recipient at his place of confinement, by first class mail, postage prepaid." App. at 104. Indeed, the Chief Deputy Marshal for the Western District of Pennsylvania affirmed that during the time in question "to the best of [his] knowledge and belief, the standard office procedures of the United States Marshal Service were followed, and all such correspondence was forwarded to Reginald D. McGlory at his place of confinement by first class mail, postage prepaid." Id. at 105. Thus, if the Chief Deputy Marshal's belief and knowledge are correct and the standard practice of the Marshals Service was followed, notice of the forfeitures was mailed to McGlory at his place of confinement by first-class mail -- precisely what the majority says that due process demands.


[60] Why, then, does the majority think that due process was violated? The majority provides no express explanation. The majority opinion appears to hint at two possible explanations, but neither is supportable. First, the majority may believe that it is essential that the notice be sent to the detainee's place of confinement by "the forfeiting agency," Maj. Op. at 11, in this case the DEA, rather than the Marshals Service. Compare Weng v. United States, 137 F.3d 709, 715 (3d Cir. 1998)(treating the forfeiting agency, the DEA, and another component of the Justice Department, the Bureau of Prisons, as one entity for the purpose of due process notice requirements in administrative forfeiture of property of detainee). The majority, however, provides no reason for this requirement, and there is no constitutional basis for it. The forfeiture proceedings were brought in the name of the United States, and I fail to see why it matters for due process purposes whether the notices were mailed by a person working for the DEA or the Marshals Service. Suppose that the notices had been mailed by an employee of the United States Attorney's office or an employee of the Criminal Division of the Department of Justice in Washington. Would that make the notices constitutionally inadequate?


[61] The other possible ground for the majority's decision is internal Executive Branch efficiency. The majority opines that "adding the Marshals Service in the chain of mailers duplicates the number of agencies handling the mail, thereby increasing the possibility of error, and doubles the time until . . . receipt [by the detainee]." Maj. Op. at 15. But even if this is true, it does not matter for purposes of the Due Process Clause. What matters for due process purposes is that notice is in fact mailed to the right place at the right time. If those requirements are met, any inefficiency in the internal government procedures leading up to the mailing is a matter for the Executive, not the Judiciary.*fn12


[62] In sum, the en banc majority has rendered a decision that mailing by the Marshals Service, as opposed to the DEA, violates the Constitution, but the majority fails to say why, and no plausible explanation is apparent. I urge the majority to explain why it matters for due process purposes whether the notices were sent by the DEA or the Marshals Service. Since the majority has yet to offer such an explanation, and since none is apparent I would hold, contrary to the majority, that due process was satisfied in this case -- provided that the Marshals Service followed its standard practice and sent the notices in question to McGlory by first-class mail at his place or places of confinement. It is far from clear that McGlory has raised on appeal the argument that in fact the Marshals Service did not follow its standard practice with respect to the notices in question,*fn13 but I would give him the benefit of the doubt on this point and remand for a factual finding by the District Court. If the District Court finds that the Marshals Service never sent the notices, I would agree with the majority that due process was not provided. But if the Court finds that the Marshals Service did send the notices, I would hold that due process was satisfied.


[63] A True Copy: Teste:


[64] Clerk of the United States Court of Appeals for the Third Circuit



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Opinion Footnotes

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[65] *fn1 . Also before the en banc court are consolidated appeals in United States v. One Toshiba Color Television, Two Answering Machines, and One Health Tech Computer, No. 98-3578, and United States v. Assorted Jewelry, No. 98-3579. Although those appeals involve the identical parties and similar fact patterns as the present appeal, they raise distinct legal issues and will be addressed hereafter in a separate opinion.


[66] *fn2 . The luggage is misnamed throughout the record as Louis Vitton. The brand name is well known and the accurate name is Louis Vuitton.


[67] *fn3 . The government also initiated administrative forfeiture proceedings regarding eleven other DEA seizure numbers: 64582, 68735, 73402, 68730, 68719, 68727, 64563, 68740, 68729, 68743, and 72090. The government contends that the property listed at these seizure numbers was seized from individuals other than McGlory, and McGlory does not contend otherwise in this appeal. In addition, one other administrative forfeiture (66645) involved a Nissan automobile that has been returned to the lienholder, and McGlory did not list this among the seizure numbers challenged on appeal. See Appellant's Brief at 4.


[68] *fn4 . In this appeal, McGlory has not renewed his challenge to the notice provided in the judicial forfeiture proceedings, although that issue is before the court in the related appeals referred to in note 1 supra.


[69] *fn5 . Section 881(a) provides in pertinent part: The following shall be subject to forfeiture to the United States and no property right shall exist in them . . . (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter. . . .


[70] *fn6 . Section 1607 provides: If . . . the value of such seized vessel, vehicle, aircraft, merchandise, or baggage does not exceed $500,000 [,]. . . the appropriate customs officer shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party who appears to have an interest in the seized article.


[71] *fn7 . Section 881(d) states: The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.


[72] *fn8 . Because McGlory has not contended in his brief on this appeal that due process required more of the government than sending certified mail, return receipt requested, to him at his place of confinement, we are not faced with the issue before the court in United States v. Assorted Jewelry, No. 98-3579, namely, whether the government must ensure actual notice or take additional steps to increase the likelihood of actual notice, to prisoners in its custody. See Commonwealth of Pennsylvania Dep't of Public Welfare v. United States Dep't of Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996) (argument not properly raised in brief is deemed waived on appeal).


[73] *fn9 . At oral argument, McGlory did not press the position that due process mandates the use of certified as opposed to ordinary first class mail. In fact, "[c]ertified mail is dispatched and handled in transit as ordinary mail." United States Postal Service, Domestic Mail Manual, Issue 54, S912.1.1 (12/2/1999) (on the Web at http://pe.usps.gov/). As the Postal Service explains, the principal advantage of this type of service is evidentiary. Id. ("Certified mail service provides the sender with a mailing receipt, and a delivery record is kept at the post office of address."). Although we have at times noted the obvious evidentiary value of certified or registered mail, we have not required notice to be effected in that manner. See, e.g., Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 91-93 (3d Cir. 1985) (first class mail and publication provided adequate notice in class action suit); United States v. Smith, 398 F.2d 173, 176-78 (3d Cir. 1968) (notice of divorce proceeding need not be sent by certified or registered mail); see also, e.g., DePiero v. City of Macedonia, 180 F.3d 770, 788-89 & n.9 (6th Cir. 1999) (notice of right to contest parking ticket may be sent first class mail); Armendariz-Mata v. DEA, 82 F.3d 679, 683 (5th Cir. 1996) ("Under most circumstances, notice by ordinary mail is sufficient to discharge the government's due process obligations."); Weigner v. City of New York, 852 F.2d 646, 650-51 (2d Cir. 1988) (notice of tax foreclosure may be sent regular mail). Nor has the Supreme Court suggested a distinction of constitutional magnitude between these types of mail. See, e.g., Tulsa Prof 'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988) ("notice by mail" sufficient to provide actual notice of probate proceedings); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318-19 (1950) (trust beneficiaries had to be notified "at least by ordinary mail" . . . which is "recognized as an efficient and inexpensive means of communication").


[74] *fn10 . We note that the District Court's order of January 3, 1997 did not address McGlory's claim to property he contends was seized but never subjected to administrative or judicial forfeiture, although McGlory did raise the issue in his Rule 41(e) motion. The Magistrate Judge's report of July 23, 1998, adopted by the District Court in its September 22, 1998 order denying McGlory's motion for reconsideration, did address ten household items, and having determined that the government had properly accounted for all but two of the ten disputed items, determined that the government should return to McGlory a stereo system and camera which were seized but never forfeited or the value of these items. The status of the remaining twenty-six items that McGlory claims were also seized but not forfeited is not before us. The District Court may address them on remand.


[75] *fn11 . At no time in this appeal has McGlory disputed the fact that he was moved from one facility to another during the relevant period. Indeed, in a submission filed shortly before the en banc argument, McGlory stated: "[T]he government saw fit to house Mr. McGlory while he was in their custody during this period at a number of state facilities which were apparently under contract with the federal government to house federal prisoners." Appellant's Oct. 25, 1999, Letter-Brief at 4 (emphasis added).


[76] *fn12 . The majority's suggestion that its decision is supported by Robinson v. Hanrahan, 409 U.S. 38 (1972), and United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995), is plainly incorrect. Both cases held that due process was violated where notice of forfeiture was sent to the home address of a person who was incarcerated, rather than the place where he was being held, even though the government knew that the detainee was in custody. Neither case had anything to do with the issue presented here, viz., whether due process was violated because the DEA, instead of mailing the forfeiture notices directly to McGlory's place of confinement, mailed them to the Marshals Service, and the Marshals Service, if it followed its standard practice, then forwarded them to McGlory.


[77] *fn13 . Rather, the main thrust of McGlory's argument, like the majority's analysis, focuses on the conduct of the DEA, and he contends that the DEA's actions -- mailing the notices to the Marshals Service -- were constitutionally inadequate.

United States v. One Toshiba Color Television, 213 F.3d 147, 213 F.3d 147 (3d Cir. 05/24/2000)

[1] U.S. Court of Appeals, Third Circuit


[2] NOS. 98-3578 and 98-3579


[3] 213 F.3d 147, 213 F.3d 147, 2000


[4] May 24, 2000


[5] UNITED STATES OF AMERICA
V.
ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING MACHINES; ONE HEALTH TECH COMPUTER
UNITED STATES OF AMERICA
V.
ASSORTED JEWELRY


[6] Reginald McGlory, Appellant in No. 98-3578 (Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00138) Reginald McGlory, Appellant in No. 98-3579 (Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00370)


[7] Michael A. Young, Esquire (argued) 165 Christopher Street New York, NY 10014 Counsel for Appellant Harry Litman, Esquire (argued) United States Attorney Bonnie R. Schlueter Mary McKEEN Houghton, Esquire Assistant United States Attorney 633 United States Post Office and Courthouse Pittsburgh, PA 15219 Counsel for Appellees


[8] Before: Becker, Chief Judge, Sloviter, Mansmann Greenberg, Scirica, Nygaard, Alito, Roth, McKEE, Rendell and Barry, Circuit Judges.


[9] The opinion of the court was delivered by: Becker, Chief Judge.


[10] On Appeal From the United States District Court For the Western District of Pennsylvania District Judge: Honorable D. Brooks Smith Submitted Under Third Circuit LAR 34.1(a) July 13, 1999


[11] Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.


[12] ARGUED EN BANC: November 8, 1999


[13] Filed May 24, 2000


[14] OPINION OF THE COURT


[15] In these consolidated appeals Reginald McGlory challenges the results of two forfeiture proceedings. The first appeal requires that we revisit the question of the notice that the United States must provide when it pursues forfeiture proceedings against the property of an incarcerated defendant in its custody. The second concerns the District Court's use of the doctrine of laches to prevent McGlory from challenging a forfeiture proceeding in which the notice given for the forfeiture is later discovered to be constitutionally inadequate.


[16] In the first appeal, which concerns forfeiture of certain items of jewelry, the government directed notice by certified mail to the facility in which McGlory was incarcerated. McGlory maintains that he did not receive the notice, and that the government should have ensured that he received personal notification of the proceedings against his property. In United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc), which involved different property of McGlory's that was subject to administrative forfeiture, this Court ruled that merely sending notice to the Marshals Service, in whose custody McGlory was held, did not satisfy the Constitution. We held that "at a minimum, due process requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement." Id. at 674. We noted, however, that "[w]hether anything more is required is not presently before us." Id. This appeal squarely presents the question whether "more" is required. McGlory asks that we rule the judicial forfeitures at issue in this case invalid because he did not receive actual notice of the proceedings.


[17] As in all cases in which proper notice under the Due Process Clause is at issue, the touchstone of analysis is whether the notice was "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 314 (1950). The government urges that mailing a letter by first-class mail to the location of the interested party is always sufficient. McGlory, in contrast, argues that a higher standard should prevail when the party is held in custody by the same government that wishes to serve notice upon him. He maintains that the government was in the position to ensure actual notice of the proceedings. Such notice has been required by several of our sister circuits, most notably by the Second Circuit in Weng v. United States, 137 F.3d 709 (2d Cir. 1998).


[18] Though there is much to recommend the actual notice standard when the United States Attorney is dealing with federal prisoners and detainees, we are not prepared to require the government to bear the evidentiary burden of establishing actual notice in all cases. Such a 780demonstration could impose needless litigation costs, especially if the due process challenge arises years after the conclusion of the initial proceedings. Moreover, the Supreme Court has never required the demonstration of actual notice. At all events, the jurisprudence of constitutional notice appropriately focuses not on what actually occurred, but rather on the procedures that were in place when notice was attempted. Evaluating the adequacy of these procedures requires consideration of the context in which they occur.


[19] We conclude that the circumstances surrounding the federal government's incarceration of a prisoner require greater efforts at ensuring notice than would be expected for individuals at liberty in society. When one is in prison, the relative difficulty to the government to effect actual notice is reduced, while the ability of prisoners to ensure that they receive notices directed to them suffers. However, we stop short of the Weng standard and adopt an approach that focuses on the extent that procedures are reasonably likely to effect actual notice. Under this regime, the government's obligations do not end at the mailbox. Rather, we hold that if the government wishes to rely on direct mail, it bears the burden of demonstrating that procedures at the receiving facility were reasonably calculated to deliver the notice to the intended recipient. On this record, we cannot determine whether such a system was in place in McGlory's facility. We will therefore vacate the judgment and remand to the District Court for further factual findings on the sufficiency of the notice.


[20] In the second forfeiture now before us, which concerns certain electronic equipment, the notice provided to McGlory concededly fell short of the constitutional minimum. The government contends, however, that McGlory's attempt to recover the forfeited property is barred by the doctrine of laches, and the District Court agreed. We conclude that the doctrine of laches should not be considered when the issue is whether a judgment is void. If McGlory unreasonably delayed in seeking the recovery of his property, the proper time to raise the issue is in a proceeding in which he seeks recovery from the government. The District Court will have to consider whether such recovery is available by a motion to vacate that arises under Fed. R. Civ. Proc. 60(b) or if McGlory will have to proceed by other means. We will therefore vacate the District Court's judgment that McGlory's action was barred by laches.


[21] I.


[22] This is the third time that forfeitures of McGlory's property have come before this Court, and the facts surrounding his arrest and detention are described several times in the Federal Reporter, most recently in United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc); see also United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir. 1992) (upholding McGlory's criminal conviction and sentence). We therefore need not rescribe this story save for the highlights.


[23] On September 8, 1989, Pittsburgh police officers and Drug Enforcement Administration agents arrested McGlory for conspiracy to possess heroin with intent to distribute. He was ultimately convicted of conspiracy to possess and distribute heroin, possession of heroin with intent to distribute, possession of a firearm by a convicted felon, use of a firearm in a drug trafficking operation, and laundering drug proceeds. He received a life sentence. On the date of his arrest, the officers searched several residences used by McGlory and seized numerous items of property, including, at issue in this appeal, one Toshiba color television set, two answering machines, one Health Tech computer, and assorted jewelry. In 1990, the United States Attorney instituted civil judicial forfeiture actions against these items under 21 U.S.C. S 881.


[24] Until McGlory was sentenced on February 11, 1991, he was in the custody of the United States Marshals Service, and was housed in various detention facilities with which it had contracted. In initiating the forfeiture against the jewelry, the government mailed notice of the action to McGlory care of the Ohio County Jail in Wheeling, West Virginia, where he was apparently being held at the time. The notice was received at the jail on November 9, 1990 and signed for by one of the jail's officers. The government also sent notice to the jail by regular mail and mailed notice by certified mail to one of McGlory's pre-incarceration residences. That letter was not accepted. Finally, the government sent notice to McGlory's ex-wife, and to an attorney by the name of William Magann,*fn1 and it published notice for three consecutive weeks in a general circulation newspaper. No one filed a claim or answer as directed by the notice to those seeking to contest the forfeiture. A default judgment was entered in the government's favor on January 7, 1991. The government ultimately sold the jewelry for $9,950.


[25] The government also initiated forfeiture proceedings against the television set and the other equipment, mailing the notice to an address used by McGlory. The government also sent notice to McGlory's mother and Magann and published notice in a newspaper. This proceeding was resolved by default judgment in the government's favor on May 31, 1990.


[26] McGlory maintains that he never received any notice, and he was unaware of any of the forfeiture proceedings until December 1993. On April 11, 1994, he filed a pro se motion pursuant to Fed. R. Crim. Proc. 41(e), seeking return of all the property that had been seized from him. The District Court dismissed the motion without prejudice on January 6, 1997, and McGlory promptly filed a motion to reconsider the denial of his 41(e) motion. Shortly thereafter, he filed a motion to vacate the judgments in the two earlier proceedings. The Magistrate Judge to whom the case was assigned concluded that no constitutional notice violation occurred in the jewelry forfeiture proceeding, but that there was a violation in the proceeding concerning the electronic equipment. Notwithstanding this conclusion, he recommended that this claim be dismissed based on the doctrine of laches because: (a) McGlory had inexcusably delayed seeking recovery of the property; and (b) this delay was prejudicial to the government. Relying on the 780Magistrate Judge's report, the District Court denied McGlory's motion to vacate the judgments on September 23, 1998. McGlory filed a timely notice of appeal.


[27] The District Court had jurisdiction over the forfeiture proceedings under 28 U.S.C. SS 1331, 1345, and 1355, and over the motion to vacate judgment under 28 U.S.C. S 1331. We have jurisdiction to review the District Court's final order under 28 U.S.C. S 1291. Our review over constitutional issues is plenary, see United States v. Various Computers & Computer Equip., 82 F.3d 582, 589 (3d Cir. 1996), as is our review of the legal components of the laches issue, see Bermuda Express, N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989).


[28] II.


[29] The central issue in the appeal from the jewelry forfeiture is whether a pretrial detainee is entitled to actual notice of judicial forfeiture proceedings initiated against him.*fn2 The District Court concluded that attempting service in jail via the mail satisfied constitutional requirements for the service of notice. It primarily relied upon two cases. First, it looked to our opinion in United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995), another McGlory forfeiture case, which taught that the government must at least attempt service on an incarcerated defendant in the place where he is being detained. Second, it cited Herbert v. United States, 1996 WL 355333 (E.D. Pa. June 25, 1996), aff 'd without opinion, 103 F.3d 114 (3d Cir. 1996), which declared that notice to the prison in which the defendant was incarcerated met due process requirements. Because it was not affirmed by a published opinion, Herbert is not precedential under our Internal Operating Procedures. See, e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d Cir. 1994); IOP S 6.2.1 (2000 ed.). The District Court nevertheless reasoned that the two cases indicate that, in this circuit, attempting service by mail to a prisoner in jail meets due process requirements.


[30] We have never addressed the specific claim that McGlory urges upon us now. Our most recent pronouncement on the issue, which also involved McGlory, held no more than that the government agency pursuing the forfeiture must send notice to the facility at which the detainee is actually incarcerated and that it may not rely on another agency to do so. See United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc). We turn then to consideration of whether due process requires the government to go further and provide actual notice to an incarcerated defendant against whom it has initiated forfeiture proceedings.


[31] A.


[32] Our analysis perforce begins with Mullane v. Central Hanover Bank & Trust, Co, 339 U.S. 306 (1950), which established the framework for evaluating the adequacy of notice for due process purposes. As described by the Supreme Court, the judgment is a highly contextual one. "An elementary and fundamental requirement of due process in any proceeding which is to be accordedfinality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 314 (emphasis added). A person or entity seeking to give notice must employ means "such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Id. at 315.


[33] Under this framework, it is clear that when an incarcerated individual is the one being served, the serving party must attempt to effect service where the prisoner may be found--that is, in prison, not the pre-incarceration address. See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (per curiam). As the Magistrate Judge's report recounted, this Court has ruled that notices in other forfeiture proceedings involving McGlory were inadequate when they did not attempt to reach him where he was incarcerated. See United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995).


[34] B.


[35] The government argues that precedent supports the conclusion that direct mail always satisfies due process requirements. Indeed, Supreme Court authority indicates that mailing to the location where the party can be found usually suffices for due process purposes. See Mullane, 339 U.S. at 318. In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983), the Court opined, "[n]notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascertainable." The government points to this language and to Tulsa Professional Collection Services v. Pope, 485 U.S. 478 (1988), for the proposition that notice by direct mail suffices to establish its successful discharge of its obligations to McGlory under the Due Process Clause. See id. at 490 ("We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.").


[36] While this argument carries strong surface appeal, it ignores the framework that Mullane decreed. Precedents endorsing direct mail as a means of meeting constitutional notice requirements in certain contexts do not establish that such mailings result in per se satisfaction of notice requirements. Adequacy of notice is always evaluated by reference to the surrounding circumstances. See Mullane, 339 U.S. at 314. "The focus is on the reasonableness of the balance, and, as Mullane itself made clear, whether a particular method of notice is reasonable depends on the particular circumstances." Tulsa Professional Collection Serv., 485 U.S. at 484. For example, in Covey v. Town of Somers, 351 U.S. 141, 146-47 (1956), the Supreme Court held that notice sent to an incompetent taxpayer was inadequate, notwithstanding that the notice was sent by direct mail. Though the facts of Covey are not, of course, analogous to the case at hand, that case's disposition stands as a stark example of the imprudence of gleaning from Supreme Court precedent a per se rule that mail will always be adequate notice. The proper effort at giving notice, the effort "such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," Mullane, 339 U.S. at 315, will vary under the circumstances.


[37] C.


[38] Our sister circuits have differed on what kind of notice is the constitutional minimum for incarcerated individuals whose property is subject to forfeiture. United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996), involved the government's attempt to serve notice of an administrative forfeiture to a pre-trial detainee by mailing it to the facility where he was actually held. The Tenth Circuit held that this notice met the demands of due process, even if the party served did not actually receive the mailed notice. See id. at 381. In concluding that the notice was sufficient, the court employed a logic similar to that urged by the government and pointed to the Supreme Court's indication in Mennonite Bd. of Missions that mail is a constitutionally acceptable form of notice. See id. "We have found no case suggesting that service by mail is inadequate or requiring the government to personally serve an interested party at the place of incarceration. We decline to create such a requirement here." Id.


[39] Other courts of appeals, however, have required more. In Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the Second Circuit announced a requirement of actual notice. Weng involved several administrative forfeiture notices, one of which was sent by certified mail to the federal facility at which the defendant was detained. See id. at 714. The court determined that Mullane's balancing analysis compelled more. Noting the importance of the property interest at stake to the party notified and his inability to rely on others to vindicate those interests, see id. at 714-15, the court declared that the interests and burdens on the other side of the scale were less pronounced."[A]t least


[40] where the owner is in federal custody on the very charges that justify a federal agency in seeking the forfeiture, there is no undue hardship to the agency in insuring that the owner-prisoner actually receive the legally required notification." Id. at 715. The court further noted the disparity in the parties' relative ability to take precautions to ensure the prisoner's receipt of notice.


[41] First, as a prisoner, the owner is unable to insure that he will receive the notice once the post office has delivered it to the institution. The owner is entirely dependent on the institution to deliver his mail to him. Second, because the owner's jailor--the Bureau of Prisons--is part of the same government . . . as the agency seeking to give notice, the forfeiting agent can in all probability easily secure the Bureau's cooperation in assuring that the notice will be delivered to the owner and that a reliable record of the delivery will be created. Id.


[42] The court concluded that, under the circumstances, merely sending notice to the detention facility without ensuring actual delivery to the prisoner is not notice "such as one desirous of actually informing [the owner] might reasonably adopt." Id. (quoting Mullane, 339 U.S. at 315). Instead, the court held that when the prisoner is in federal custody on the charges that are the basis of the forfeiture, "mailing of a notice to the custodial institution is not adequate unless the notice is in fact delivered to the intended recipient." Id.; see also United States v. Woodall, 12 F.3d 791, 794-95 (8th Cir. 1993) ("[I]f the government is incarcerating or prosecuting the property owner when it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires that either the defendant or his counsel receive actual notice of the agency's intent to forfeit in time to decide whether to compel the agency to proceed by judicial condemnation.").


[43] As Weng recites, the circumstances of prisoners differ greatly from free citizens, a fact that potentially alters the evaluation of what steps are reasonably calculated to provide notice. When an individual is incarcerated at a location of the government's choosing, the government's ability to find and directly serve him or her with papers is at or near its zenith. Not only does the government know where to find the person, it can be equally sure that he or she will be there when the papers are delivered. Indeed, it can even move the person to a more convenient location if it so chooses. This appears especially the case where, as here, ongoing criminal proceedings against the prisoner brought the prisoner into frequent face-to-face contact with government attorneys.


[44] For his part, a prisoner lacks the ability to take steps to ensure that his mail is actually delivered to him. This dilemma is especially acute for a prisoner who may be transferred from facility to facility, complicating efforts to effect service. In the outside world, an individual who changes addresses can arrange to have mail forwarded and can notify interested parties as to the change of address. While a prisoner may take similar steps, the effectiveness of these measures may depend in some degree on such independent factors as prison policies vis-a-vis the forwarding of mail or the amount of forewarning a prisoner receives of an impending transfer. We also note that a prisoner may not know how long he or she will be at the changed address, which may make prison forwarding difficult. Shades of the same problem also exist for a prisoner who is not moved, but remains at one facility. If a person lives in an apartment building where the distribution of mail among the residents leads to lost missives, that person has some recourse, through complaint or, possibly, moving elsewhere. Such options are necessarily curtailed for the prisoner.


[45] The relative burdens and benefits of additional steps to ensure actual notice, therefore, suggest that requiring greater efforts at assuring notice by the government is appropriate. In other words, there is much to commend the Weng approach, and as an aspiration, the Weng rule comports with our ideas of the sort of effort that the government should undertake when it wishes to effect notice of a forfeiture proceeding against a prisoner in federal custody. On the other hand, Weng involved a prisoner held in a federal, rather than a state, facility. As the Seventh Circuit has observed, "[t]he prophylactic Weng rule, requiring actual notice, becomes less reasonable as the federal government exercises less control over the detainee." Donovan v. United States, 172 F.3d 53, 1999 WL 50847, at *2 (7th Cir. Feb. 2, 1999). The rejoinder to this argument is that, though McGlory was held in a state facility, he was held pursuant to his arrest on federal charges, and in contracting with state facilities to house pre-trial detainees, the federal government has the ability to demand procedures that will allow the delivery of adequate notice for prisoners.


[46] Though attractive, the Weng rule does present problems. The real difficulty with the Weng rule lies not in requiring the government to demonstrate actual notice, but rather the evidentiary burden that such a standard could impose after the passage of time. Given the temporal gap that may separate a forfeiture from a due process challenge to the proceedings, it is easy to imagine situations in which proof of the delivery of notice may be unavailable, even if such notice was properly served. An overly strict notice requirement, therefore, could lead to unsettling the outcome of completed proceedings based on nothing but bare allegations of a party who had lost property.


[47] More importantly, the Weng approach undermines the procedural analysis that has heretofore animated the Supreme Court's dictates on this subject. The Court has never employed an actual notice standard in its jurisprudence. Rather, its focus has always been on the procedures in place to effect notice. See, e.g. , Mennonite Bd. of Missions, 462 U.S. at 799-80.*fn3 We think this focus appropriate. Thus, while we will not adopt the Weng rule, the concerns animating Weng will inform our decision as to the procedures designed to give notice. We hold that, while the government need not prove actual notice to the prisoner, if it chooses to rely on less than actual notice, it bears the burden of demonstrating the existence of procedures that are reasonably calculated to ensure that such notice will be given. Thus, our rule requires the government to ensure that proper procedures are employed in the facilities where it chooses to house its prisoners.*fn4 Of course, if there is a signed receipt from the served party, the government does not then have to prove anything about the procedures that were in place.*fn5


[48] Because the District Court did not make findings on the sort of procedures in place at the facility at which McGlory was housed and whether these procedures were reasonably calculated to ensure that the notice, once addressed to McGlory, would still reach him upon arrival at the prison (and indeed, would only be accepted were McGlory actually present), we will vacate the District Court's ruling as to the jewelry forfeiture and remand for further proceedings consistent with this opinion.


[49] III.


[50] In the forfeiture proceeding regarding the Toshiba television and other electronic equipment, the government made no attempt to serve McGlory in jail. For due process purposes, therefore, the attempted notice was clearly inadequate. Though the government concedes the constitutional deficiency of its notice, it contends, and the District Court agreed, that McGlory's motion to vacate judgment on this forfeiture is precluded by the doctrine of laches. We disagree.


[51] A.


[52] The District Court treated McGlory's motion as arising under Federal Rule of Civil Procedure 60(b), but concluded that the improper notice given by the government of the forfeiture proceedings rendered the judgments, as applied against him, "voidable" rather than "void," as provided by Fed. R. Civ. Proc. 60(b)(4). We think this conclusion incorrect. As a general matter, we have held that the entry of a default judgment without proper service of a complaint renders that judgment void. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985). The majority of courts of appeals to consider the fate of a prior forfeiture proceeding that violated notice requirements agree that a judgment issued without proper notice to a potential claimant is void. See United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v. D.E.A., Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir. 1996); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir. 1996); United States v. Giraldo , 45 F.3d 509, 512 (1st Cir. 1995). But see United States v. Dusenbery, 201 F.3d 763, 768 (6th Cir. 2000) (treating forfeiture as voidable rather than void); Boero v. D.E.A., 111 F.3d 301, 307 (2d Cir. 1997) (same).


[53] In light of our decision in Gold Kist, we are in accord with the majority view. Gold Kist involved a service of a summons and complaint in a manner that did not conform with Pennsylvania law. See Gold Kist, 756 F.2d at 18. Defendants in that action challenged the default judgment entered against them. Citing Fed. R. Civ. Proc. 60(b)(4), we declared that "[a] default judgment entered when there has been no proper service of complaint is, a fortiori, void, and should be set aside." Id. at 19. Because of the complaint's improper service, as well as the entry of default judgment before the expiration of the time for filing an answer, see id., the Gold Kist panel refrained from considering other factors that could also justify the setting aside of a default judgment. See id.


[54] The same logic applies here. Though we understand the concern expressed by the Sixth Circuit in Dusenbery that a prisoner claimant could sit on his or her rights until after the passage of the statute of limitations for the government to reinitiate a proceeding, see Dusenbery, 201 F.3d at 768, we conclude that this concern can be addressed by other means, see id. at 769 (Cole, J., dissenting). As we explain below, a holding that the forfeiture against McGlory's property was void does not equate to a ruling that he is entitled to a return of the property or monetary relief from the government, because a Rule 60(b) motion is not a claim for the return of property. McGlory will therefore have to pursue further proceedings to recover his property, and it is in these proceedings that the government may invoke defenses that are predicated on McGlory's alleged delay.


[55] B.


[56] The District Court ruled that McGlory's motion to vacate was barred by the doctrine of laches. The doctrine of laches hails from equity, and is invoked when two essential elements exist: inexcusable delay in instituting suit, and prejudice resulting to the defendant from such delay. See Central Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996). We conclude that the District Court was incorrect to have applied laches analysis to McGlory's motion.


[57] McGlory's motion was to vacate the forfeiture judgments against him and is treated, as discussed above, as arising under Fed. R. Civ. Proc. 60(b). It is understandable why the District Court may have thought that the doctrine of laches applied. A motion under Rule 60(b) is equitable in nature, so it is reasonable to believe that equitable doctrines apply. See Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947) ("The proceeding by motion to vacate a judgment is not an independent suit in equity but a legal remedy in a court of law; yet the relief is equitable in character and must be administered upon equitable principles."); see also Winfield Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970) ("Rule 60(b) . . . specifically preserves the right to attack a judgment by an independent equitable action."); In re Brown, 68 F.R.D. 172, 174 (D.D.C. 1975) (describing Rule 60(b) as codification of methods of gaining equitable relief from judgments).


[58] In light of our ruling that the judgment against McGlory in the electronic equipment forfeiture is void, however, no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion. It is true that the text of the rule dictates that the motion will be made within "a reasonable time." See Fed. R. Civ. Proc. 60(b). However, nearly overwhelming authority exists for the proposition that there are no time limits with regards to a challenge to a void judgment because of its status as a nullity; thus laches is no bar to recourse to Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994) (collecting cases); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Katter v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734 (8th Cir. 1985); In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985); Misco Leasing, Inc. v. Vaughn , 450 F.2d 257, 260 (10th Cir. 1971); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962); Moore v. Positive Safety Manufacturing Co., 107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he reasonable time criterion of Rule 60(b) as it relates to void judgments, means no time limit because a void judgment is no judgment at all.") (citation and quotation omitted).


[59] We agree that no passage of time can render a void judgment valid, and a court may always take cognizance of a judgment's void status whenever a Rule 60(b) motion is brought. Without addressing any other reason to bar a Rule 60(b) motion that attacks a judgment as void,*fn6 we hold that laches may not be used to preclude such a motion. Cf. Micro Leasing, 450 F.2d at 260 ("The cases say that a void judgment acquires no validity as the result of laches on the part of the adverse party. We are not asked to consider whether under any particular circumstances a movant under Rule 60(b) may be estopped or precluded fromfiling such a motion.") (footnote omitted).


[60] C.


[61] Though we hold that laches is not available to preclude a claimant from attacking a void judgment, our holding is not to be construed as allowing a petitioner to sit on his or her rights. It is true that if a court is able to determine that a prior judgment is indeed void, it should declare it as such, but that does not mean that other remedies, such as the actual return of property or its cash value, are immune from defenses of waiver or laches. In other words, we conclude that the potential prejudice that arises from such delay is best dealt with outside of the Rule 60(b) context.


[62] Whether McGlory unreasonably delayed in seeking recovery of his property in general, which is the laches issue considered by the District Court, is a matter distinct from whether the judgment that forfeited the property was void. That is not, however, a matter that is before this Court. We are only reviewing the denial of McGlory's motion to vacate. Even if he prevails on this motion, that does not mean that he is entitled to any monetary relief or relief in the form of a transfer of property. It has been held that Rule 60(b) does not provide for such remedies. See United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-57 (5th Cir. 1972) (holding that monetary remedy for void forfeiture, which depends on waiver of sovereign immunity, lies not in Rule 60(b) but in 28 U.S.C. S 1346(a)); see also United States v. $119,980.00, 680 F.2d 106, 107-08 (11th Cir. 1982) (holding Rule 60(b) may not be used to impose affirmative relief beyond setting aside prior judgment); United States v. One Douglas A-26B Aircraft, 662 F.2d 1372, 1377 (11th Cir. 1981) (same). In order to obtain such relief, McGlory may have to look elsewhere.


[63] It is in the pursuit of his remedies that McGlory's delay, if any, will become an issue. Though the vacatur of the earlier judgment will be a powerful weapon for McGlory in such an effort, it will not decide the issue. McGlory would have to act within the confines of whatever legal framework surrounds the legal or equitable remedy he will elect to pursue. At that time, the District Court may consider whether the doctrine of laches applies, or whether the six-year statute of limitations for suits against the federal government is applicable. See 28 U.S.C.S 2401(a). It would appear that the federal statute applies, see Menkarell v. Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972) (applying six-year statute of limitations of 28 U.S.C. S 2401(a) in attempt to recover forfeited property), even if the action is characterized as equitable, see, e.g., Blassingame v. Secretary of Navy, 811 F.2d 65, 70 (2d Cir. 1987) ("[T]he merger of law and equity assured that section 2401(a) covers both legal and equitable actions.").


[64] If the District Court concludes laches analysis to be in order anyway, it will have to determine the interplay between laches and the relevant statute of limitations, giving consideration to the cases that indicate that if a suit is brought within the statutory period, laches would generally be unavailable. See, e.g., Central Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996); Henry v. United States, 46 F.2d 640, 642 (3d Cir. 1931) ("While there is no statute of limitations in equity, yet it generally in this respect follows the law, and will, in the absence of special extenuating circumstances . . . regard the delay as inexcusable and refuse relief after the time of the statute of limitations in that particular locality has expired."); Ikelionwu v. United States, 150 F.3d 233, 238 (2d Cir. 1998) (declining to invoke laches when suit to recover forfeited property brought within statutory period). Also, insofar as it considers the doctrines of equity, the District Court will also have to consider whether the party asserting the defense of laches has clean hands. See United States v. Marolf, 173 F.3d 1213, 1219 (9th Cir. 1999) (refusing to reverse district court's rejection of laches defense in light of government's "inexplicable fail[ure] to remedy" an improper administrative notice or initiate proper judicial proceedings).


[65] We reference the foregoing authority not to express any view on the merits but only to flag important issues that the District Court did not appear to consider in its analysis of laches. At all events, we make no ruling on issues of inexcusable delay because all we have before us is the motion to vacate, and, as we have held, laches analysis does not apply to such a motion. Finally, in ruling that the judgment in the electronic equipment forfeiture is void, we offer no opinion as to whether the government is prohibited from reinitiating the forfeiture action against McGlory or if the passage of the relevant statute of limitations has been tolled. The District Court will have to consider the issue should the government attempt to reinitiate such proceedings.


[66] The judgment of the District Court will be vacated and the case remanded for further proceedings consistent with this opinion.


[67] ALITO, Circuit Judge, concurring and dissenting:


[68] I join parts I and III of the opinion of the court and concur in the judgment insofar as it relates to No. 98-3578. However, I respectfully dissent from the court's disposition of No. 98-3579 and from part II of the opinion of the court, which adopts an interpretation of due process that has no basis in prior decisions of the Supreme Court or our circuit.


[69] The question before us is not whether it would be good policy to require the government in forfeiture proceedings to provide notice to interested parties by some means superior to the mail. Rather, the question is whether the government complied with the minimum requirements of the Due Process Clause by sending notice by mail (return receipt requested) to McGlory at the facility where he was detained. Under Supreme Court precedent, this met constitutional standards. The Supreme Court has repeatedly referred to the service of notice by mail as sufficient to satisfy the minimum requirements of due process. See, e.g. , Tulsa Prof 'l Collection Services v. Pope, 485 U.S. 478, 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983) ("Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of [a] party . . . ."). *fn7


[70] The majority seemingly acknowledges that service by mail sent to the addressee's current address is constitutionally adequate in almost all other contexts, but the majority holds that such notice may not be sufficient when sent to a detainee or prisoner. Why? Why is it that mail sent to, say, an inexpensive long-term-occupancy hotel is reasonably calculated under all the circumstances to apprise an interested party of the pendency of a forfeiture action but mail sent to a jail or prison may not be? The answer must be that there is a significantly higher probability that mail sent to such hotels will reach the addressees than is the case with mail sent to a jail or prison. But where is the evidence that this is so? The majority studiously avoids this point--for the very good reason that no evidence whatsoever to this effect has been adduced, by McGlory, the majority in this case, or any other judicial opinion of which I am aware. Such systemic problems may or may not exist; I don't know; and I doubt that my colleagues do either. But without such evidence, there is no logical basis for the majority's decision.


[71] It may well be that it would be advisable for those with legislative or rulemaking authority to require the government in forfeiture cases to provide better notice than is required by the minimum standard imposed by due process. Congress has recently manifested concern about the fairness of federal forfeiture procedures and has enacted the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (2000), to remedy the problems that it found. This Act, however, does not require that notice of forfeiture be provided by some means better than the mail, but perhaps Congress should consider that question. Congress has the capability--which the federal courts plainly lack--to investigate whether notice of forfeiture sent by mail fails to reach the addressee in a significant number of cases. (The mere fact that McGlory and a handful of other federal prisoners and detainees have claimed that they did not receive notice sent by mail to their facilities is hardly enough to show the existence of a serious problem.) Congress also has the ability to craft a rule that is specifically targeted to deal with any problem it finds to exist. It can specify the addressees to which any such rule applies--e.g., all persons to whom notice is provided, only those in custody, only those in custody on federal charges, or only those in federal facilities. And it can provide that any new rule will not have retroactive effect. A court, in interpreting the Due Process Clause, lacks such flexibility."


[72] I have three additional observations about the majority's decision. First, although the decision formally applies only to notices of forfeiture sent by the federal government to persons in custody on federal charges, its logic extends to any forfeiture notices sent to any persons in custody. If notice of a federal forfeiture proceeding that is sent by mail to a person in a state facility on federal charges is not reasonably calculated under all the circumstances to apprise that person of the pendency of the federal forfeiture proceeding, notice of a state forfeiture proceeding that is sent by mail to another person held in the same facility on state charges cannot be reasonably calculated to inform that person of the pendency of the state forfeiture proceeding. Thus, the majority's decision has a broad logical sweep.


[73] Second, the majority's standard regarding the adequacy of mail handling procedures is left open-ended and will almost certainly lead to confusion and litigation. Under the majority's decision, notice by mail to a detainee or prisoner satisfies due process only if the facility's mail handling procedures at the time in question were reasonably calculated to ensure that the notice reached the addressee. See Maj. Op. p. 14. What does this mean in practical terms? Must there be a written policy? Must the addressee sign a receipt? May delivery of the mail be entrusted to other detainees or prisoners? Must the mail be handed to the addressee personally? One or more rounds of litigation will almost certainly be required to answer these and related questions.


[74] Third, although the majority has attempted to devise a rule that will not impose an undue evidentiary burden in cases in which forfeiture judgments are sought to be vacated for lack of proper notice, the majority's decision may well prove quite difficult to administer. As previously noted, the majority's mail handling standard is murky, and attempting to establish what procedures were followed at various points in the past at the numerous state and federal facilities in which federal detainees and prisoners have been held may not be easy. And if the majority's decision is extended to state detainees and prisoners, as I think logic requires, the problem will be magnified.


[75] I would hold that due process was satisfied and leave it to the legislative or rulemaking processes to decide whether


[76] additional notice requirements should be imposed in forfeiture cases.


[77] A True Copy: Teste:


[78] Clerk of the United States Court of Appeals for the Third Circuit



--------------------------------------------------------------------------------

Opinion Footnotes

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[79] *fn1 . In proceedings below, McGlory claimed not to know who Magann is, and the government does not contend that he represented McGlory in this matter.


[80] *fn2 . The relevant precedents in this area involve both judicial and administrative forfeitures. Insofar as both judicial and administrative forfeiture proceedings carry the potential to affect the property rights of the owner, there would appear to be no reason to distinguish between the notice required by the Due Process Clause in the two situations. At all events, the issue presented in this appeal solely concerns judicial forfeitures.


[81] *fn3 . It is true that Tulsa Prof. Collection Services v. Pope, 485 U.S. 478, 485 (1988), speaks in terms of requiring "actual notice" to those with a liberty or property interest at stake in a proceeding. That opinion, however, also describes mail service as an acceptable means of providing actual notice. See id. at 490. In our view, therefore, "actual notice" is employed not as a rule, but rather as a goal against which various forms of effecting actual notice are evaluated.


[82] *fn4 . Our ruling is analogous to the approach taken by the Ninth Circuit in United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that case, the court declined to require actual notice to a forfeiture defendant when notice was sent by certified mail to the facility in which he was held awaiting trial and evidence was presented that the facility handled certified mail to inmates by opening the letters in their presence and, after checking for contraband, giving the contents directly to them. See id. at 1315. Under these circumstances, the court concluded that sufficient notice was given. See id. at 1316.


[83] *fn5 . Our approach would also apply to the problem of the relocated prisoner. Just as the government can monitor whether mail reaches a prisoner within a facility, it can similarly ensure that mail will follow an inmate who is transferred from one facility to another. See generally Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998) (deeming notice inadequate when notice sent to jail and returned absent indication that effort to find prisoner for resending would be burdensome to government); Armendariz-Mata v. U.S. Dep't of Justice, D.E.A., 82 F.3d 679, 683 (5th Cir. 1996) (holding notice inadequate when notice to jail returned undelivered and sender made no further inquiry).


[84] *fn6 . We also note that McGlory's delay vis-a-vis attacking the judgment (as opposed to inquiring into the disposition of his property, an issue that is not before us) was clearly not unreasonable. He maintains that he promptly sought relief from the judgments against him once he learned of them in 1994, and the District Court made no factfindings that indicate that McGlory learned of the judgments at an earlier date. Nor does this appear to be a situation in which McGlory can be accused of having waived his ability to bring a Rule 60(b) motion, as he did not previously launch a Rule 60(b) attack against the judgments. Cf. Beller & Keller v. Tyler, 120 F.3d 21, 23-24 (2d Cir. 1997) (acknowledging that laches cannot give a void judgment validity, but suggesting that a motion may be untimely when the voidness challenge is raised on a successive motion to vacate).


[85] *fn7 . On only one occasion has the Court held that notice by mail sent to the addressee's correct address was not constitutionally adequate. In Covey v. Town of Somers, 351 U.S. 141 (1956), the Court held that due process was violated where notice of foreclosure for delinquent taxes was mailed to a person who was known to be incompetent, lived alone, and had no guardian, no relatives in the state, and no other person who was able to help her with her taxes. Id. at 146-47. Thus, Somers hardly supports the majority's holding here.

United States v. Minor, 228 F.3d 352, 228 F.3d 352 (4th Cir. 09/13/2000)

[1] U.S. Court of Appeals, Fourth Circuit


[2] No. 99-6047


[3] 228 F.3d 352, 228 F.3d 352, 2000


[4] September 13, 2000


[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
V.
CURTIS BERNARD MINOR, DEFENDANT-APPELLANT.


[6] Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., Chief District Judge. (CR-91-201)


[7] Counsel Argued: James Richard Glover, Glover & Petersen, P.A., Chapel Hill, North Carolina, for Appellant. Michael Francis Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON Brief: Walter C. Holton, Jr., United States Attorney, Lynne P. Klauer, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.


[8] Before Wilkins, Motz, and King, Circuit Judges.


[9] The opinion of the court was delivered by: Diana Gribbon Motz, Circuit Judge


[10] PUBLISHED


[11] Argued: May 4, 2000


[12] Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Wilkins and Judge King joined.


[13] OPINION


[14] This case requires us to decide whether the United States provided adequate notice to a prisoner in government custody before it declared property owned by that prisoner administratively forfeited. The prisoner, Curtis Bernard Minor, brought this action, seeking return of $5214 in currency seized from his residence after his arrest in 1991. We hold that Minor did not receive adequate notice of the administrative forfeiture and vacate the district court's contrary holding, but because the record is unclear as to when Minor did learn of the forfeiture, we remand for a determination of whether the statute of limitations nonetheless bars the present action.


[15] I.


[16] On July 30, 1991, federal marshals and Winston-Salem police officers arrested Minor outside of his home for various parole violations. The officers took Minor into custody, where he has remained continuously since his arrest.


[17] During a protective sweep of Minor's house incident to his arrest for the parole violations, the officers observed a quantity of cocaine, a 9 mm semi-automatic pistol, and currency totaling $5214. After Minor refused to grant the officers permission to search the house, the officers obtained a search warrant and returned later to seize the drugs, gun, and currency. On November 5, 1991, Minor entered a plea of guilty to possession of cocaine with intent to distribute and to having used and carried a firearm during a drug trafficking crime.*fn1


[18] In October 1991, the Drug Enforcement Administration (DEA) initiated administrative forfeiture of the currency that had been found in Minor's residence. Pursuant to summary procedures set forth in 19 U.S.C. §§ 1602-19 (1994 & Supp. IV 1998), the United States may, without resort to judicial proceedings, issue a declaration of forfeiture for property worth less than $500,000 that is otherwise subject to criminal forfeiture. See 21 U.S.C. § 881(d) (1994) (providing that summary forfeitures under drug laws will be governed by provisions of law applicable to such forfeitures under customs laws). The summary procedures provide, among other things, that the government must publish notice of its intention to declare forfeiture of the seized property and must provide written notice to interested parties. See 19 U.S.C. § 1607. The government may declare the property forfeited if, within 20 days of the first publication of the notice, no person files a claim for the property. See id. § 1609. If a claim is filed, the government may seek forfeiture of the property only through judicial proceedings. See id. § 1608.


[19] The DEA published notice of its intention to declare forfeiture of the $5214 in USA Today for three successive weeks in October and November 1991. On October 21, the DEA mailed three written notices of the forfeiture. Notwithstanding the fact that Minor was in government custody, the DEA sent two of these notices to Minor's residence, one addressed to Minor himself, the other to his wife, Sheila Minor, who signed postal receipts for both notices on November 13. The third notice was addressed to Minor at the Forsyth County Jail in Winston-Salem, North Carolina. On November 18, this third notice was returned to the DEA's forfeiture office marked "RETURN TO SENDER."


[20] Although Minor was in state custody for a brief period after his arrest, the record indicates that he has been in federal custody continuously since at least September 17, 1991. The record does not disclose precisely where Minor was incarcerated in October and November 1991, but the government does not dispute Minor's assertion that he was held in federal custody and not in the Forsyth County Jail during this period. Moreover, in accordance with the magistrate's detention order, the United States was able to retrieve Minor for his October 1991 arraignment in federal court from the prison where he was jailed at the time.


[21] The DEA received no claims to the $5214 seized from Minor's residence. Accordingly, on December 9, 1991, it declared the property forfeited to the United States. Under the applicable procedures, that declaration has "the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States." See 19 U.S.C. § 1609.


[22] On April 16, 1998, more than six years after the government's declaration of forfeiture, Minor filed a pro se motion for return of the currency in the United States District Court for the Middle District of North Carolina, the judicial district in which he had been convicted. In this motion, Minor alleged that he had "never received notice of any forfeiture, or forfeiture proceedings."


[23] The district court denied Minor's motion in a brief order, stating that the government had provided notice of the forfeiture and that Minor had failed to respond during the statutorily prescribed time period. This court then granted Minor leave to appeal in forma pauperis*fn2 and appointed counsel for him.


[24] II.


[25] We must first decide whether we have jurisdiction to hear Minor's appeal.


[26] The government, characterizing Minor's motion for return of the currency as an action for money damages under the Tucker Act, urges us to transfer this case to the United States Court of Appeals for the Federal Circuit. Under the Tucker Act's jurisdictional provisions, a district court may adjudicate civil actions against the government for claims not exceeding $10,000, see 28 U.S.C.§ 1346(a) (1994), but the Federal Circuit has "exclusive jurisdiction of an appeal from a final decision of a district court . . . if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title." 28 U.S.C. § 1295(a)(2) (1994). We disagree with the government's characterization of Minor's motion as an action for money damages under the Tucker Act. Even though Minor seeks return of currency, we can see no persuasive reason to treat his motion differently than an action in equity for the return of a tangible item of personal property. In suing for return of the currency, Minor seeks restitution of "the very thing" to which he claims an entitlement, not damages in substitution for a loss. See Bowen v. Massachusetts, 487 U.S. 879, 895 (1988). A court sitting in equity has jurisdiction to order money damages if it cannot effect return of the specific property at issue, and an award of monetary relief under those circumstances "does not alone alter the equitable character of the relief requested." Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1099 (9th Cir. 1990); see also Bowen, 487 U.S. at 893 ("The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as `money damages.'"). Here, the fact that the government obviously cannot restore to Minor the specific currency that was seized does not transform the motion into an action at law. Cf . United States v. Jones, No. 99-6398 (4th Cir. Sept. 13, 2000) (holding soverign immunity deprives courts of jurisdiction to award monetary damages in lieu of destroyed property in a Rule 41(e) action). Rather, this is an equitable action over which we have jurisdiction, and we reject the government's suggestion that we transfer the case to the Federal Circuit.


[27] We note that our sister circuits, without exception, have similarly found that they have jurisdiction to consider such challenges. See United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993) (observing that "the federal courts have universally upheld jurisdiction to review whether an administrative forfeiture satisfied statutory and due process requirements"). To date, at least nine courts of appeals have considered due process challenges to administrative forfeitures, and none has found that it lacked jurisdiction because of the procedural provisions of the Tucker Act, or for any other reason. See United States v. Dusenbery, 201 F.3d 763, 766 n.7 (6th Cir. 2000); Polanco v. DEA, 158 F.3d 647, 651 (2d Cir. 1998); Small v. United States, 136 F.3d 1334 (D.C. Cir. 1998); United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996); Armendariz-Mata v. United States Dep't of Justice, 82 F.3d 679, 682 (5th Cir. 1996); United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995); Woodall, 12 F.3d at 793; Marshall Leasing, 893 F.2d at 1098-1102; Willis v. United States, 787 F.2d 1089, 1092-93 (7th Cir. 1986). Although the Second and Eighth Circuits may view the Tucker Act as an alternative basis for jurisdiction, see Woodall, 12 F.3d at 793; Onwubiko v. United States, 969 F.2d 1392, 1398 (2d Cir. 1992); but see Polanco, 158 F.3d at 651 (questioning the continuing authority of Onwubiko), every other circuit that has addressed the jurisdictional issue has viewed challenges like Minor's as we do--as equitable actions.


[28] While we are confident that Minor's motion is not an action at law under the Tucker Act, and that its roots are in equity, identifying the precise character of Minor's motion presents greater difficulty.*fn3 Courts have recognized the right to judicial review of forfeitures for almost two hundred years: "[r]igorous judicial review of forfeitures began at least as early as Slocum v. Mayberry , 15 U.S. (2 Wheat.) 1, 10, 4 L. Ed. 169 (1817) (Marshall, C.J.), and continues today." See Woodall, 12 F.3d at 793; see also Onwubiko , 969 F.2d at 1398 (citing The Rio Grande, 90 U.S. (23 Wall.) 458, 465 (1874)).


[29] Yet the courts that have considered challenges similar to Minor's have devoted little attention to the substantive source of the right to bring such a challenge. The Fifth Circuit has held that the Administrative Procedure Act, 5 U.S.C. § 702 (1994), not only waives sovereign immunity for equitable actions against the government, but also "creates a right of review regarding actions by federal agencies" encompassing a challenge to the adequacy of notice of an administrative forfeiture. See Armendariz-Mata, 82 F.3d at 682.*fn4 The Seventh Circuit, in an equally brief discussion, has held to the contrary--that although the APA effects a waiver of sovereign immunity, it does not serve as a substantive source for the right to bring an action. See Willis, 787 F.2d at 1093. Instead, the Seventh Circuit located the right to challenge the adequacy of notice of an administrative forfeiture directly in the Fourth and Fifth Amendments to the Constitution. Id.


[30] We need not decide whether the APA provides a substantive source for a cause of action to challenge the administrative forfeiture in this case because we agree that in any event the Constitution does. Recognizing an equitable cause of action in this context clearly effectuates Fourth Amendment protections against improper seizure and Fifth Amendment guarantees of due process. The failure to provide adequate notice of an administrative forfeiture raises the prospect of the government taking ownership of private property while the former owner of that property remains wholly ignorant of the transaction. The adequacy of notice of an impending forfeiture is thus a matter of obvious constitutional magnitude. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (observing that the right to be heard "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest"). When constitutional interests are so clearly implicated, federal courts have broad discretion to fashion a remedy in equity. See Bell v. Hood, 327 U.S. 678, 684 (1946) ("[I]t is established practice . . . to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution."); see also Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring in the judgment) (discussing "the presumed availability of federal equitable relief against threatened invasions of constitutional interests").


[31] Recognition of an equitable cause of action to challenge an administrative forfeiture based on inadequate notice--a cause of action that has been recognized by at least nine other courts of appeals--falls squarely within our discretion to safeguard constitutionally-protected interests.*fn5 We therefore find that we have jurisdiction to consider Minor's constitutionally-derived equitable challenge to the administrative forfeiture of the currency under the provisions for general federal question jurisdiction. 28 U.S.C. §§ 1291, 1331 (1994).


[32] III.


[33] We turn now to the question of whether the government provided adequate notice to Minor of the administrative forfeiture of the currency. To recap, while retaining Minor in custody, the government published notice of the forfeiture for three consecutive weeks in USA Today, sent two notices of the forfeiture to Minor's residence, and sent a third notice to the Forsyth County Jail, in which Minor was not incarcerated. The government maintains that these actions sufficed to apprise Minor of the impending forfeiture. Precedent and logic require us to reject this argument.


[34] In Mullane, the Supreme Court gave content in the forfeiture context to the basic due process notice requirement. Notice, the Court held, must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." 339 U.S. at 314. The Court then elaborated on this standard:


[35] [W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonable ness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where condi tions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Id. at 315 (emphasis added) (citations omitted).


[36] The Mullane Court held that notice of forfeiture via newspaper advertisement, standing alone, was constitutionally insufficient. Id. In a later case, the Court held that a state had not provided constitutionally adequate notice of a forfeiture when it sent notice only to the owner's home address while the owner was being held in state custody. See Robinson v. Hanrahan, 409 U.S. 38 (1972) (per curiam).


[37] Applying the Mullane standard, the First, Second, and Eighth Circuits have expressly held that when an owner of property is being held in federal custody, the federal government must provide "actual notice" to the owner of an impending administrative forfeiture. See Weng v. United States, 137 F.3d 709 (2d Cir. 1998); Giraldo, 45 F.3d at 511; Woodall, 12 F.3d at 794-95. In Weng, when the DEA sent notice to the correct prison but took no steps to see that the notice was actually delivered to the owner, the Second Circuit suggested that the agency seeking forfeiture "secure the Bureau[of Prison]'s cooperation in assuring that the notice will be delivered to the owner and that a reliable record of the delivery will be created." 137 F.3d at 715. The court remanded the case for a determination of whether the owner "in fact received the notices of forfeiture that were mailed to him in care of the [prison]." Id.


[38] The Third Circuit, in a recent en banc decision, explicitly disagreed with this standard. See United States v. One Toshiba Color Television, 213 F.3d 147 (3d Cir. 2000). In One Toshiba Color Television, a federal prisoner being held in a state facility claimed that he had not received notice of a past administrative forfeiture, and he argued that notice by direct mail to the state prison was insufficient to satisfy the standards of the Due Process Clause. The Third Circuit acknowledged that an "actual notice" standard "comports with our ideas of the sort of effort that the government should undertake when it wishes to effect notice of a forfeiture proceeding against a prisoner in federal custody." Id. at 155.


[39] Two concerns prevented the court from adopting this standard, however. First, the Third Circuit worried that "actual notice" could impose an undue evidentiary burden on the government, particularly in cases in which the prisoner challenged the sufficiency of notice long after the completion of the forfeiture. In such cases, "[a]n overly strict notice requirement could lead to unsettling the outcome of completed proceedings based on nothing but bare allegations of a party who had lost property." Id. Second, the court read Supreme Court precedents from related contexts to focus, in determining the adequacy of notice, on "the procedures in place to effect notice" rather than on receipt of notice in the particular case. Id. (citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799-800 (1983)).


[40] We agree with the First, Second, and Eighth Circuits that an actor in the federal government's position--holding a property owner in custody and at the same time "desirous of actually informing" the property owner of the impending forfeiture, Mullane, 339 U.S. at 315 --would take steps to ensure that the imprisoned owner actually receives notice. We agree with the Third Circuit, however, that the focus of the inquiry should ordinarily be on the procedures employed, and that the government should not be required to prove that the prisoner in the particular case actually received notice. Like the Third Circuit, we think that Mullane's requirement of notice "reasonably calculated, under all the circumstances, to apprise interested parties," 339 U.S. at 314 (emphasis added), mandates a context-specific inquiry, and that the requirements of Due Process therefore likely depend not only on the reliability of the procedure employed, but on how reliably that procedure functions in the particular facility in which the prisoner is incarcerated, and on whether it would be substantially more burdensome for the government to employ a more reliable procedure. We anticipate that in most cases the Due Process Clause would be satisfied if the government sent a certified letter, return receipt requested, to the facility at which the prisoner was being housed; a prison official signed for the letter; and the government introduced evidence that mail delivery procedures existed at that facility that "were reasonably calculated to ensure that the notice, once addressed to [the inmate], would still reach him upon arrival at the prison (and indeed, would only be accepted were[the inmate] actually present)." One Toshiba Color Television, 213 F.3d at 156.


[41] In any event, we have little trouble concluding in this case that the notice that the government afforded to Minor was insufficient under the Mullane standard. Publication notice and notice to a person's residence while he is imprisoned are "mere gesture[s]." Id. at 315. The government has cited no case in which a court of appeals has found notice similar to that afforded Minor to be constitutionally adequate. Meanwhile, in addition to the three circuits requiring "actual notice," two other circuits have held that notice essentially identical to that afforded by the government to Minor was insufficient to satisfy constitutional standards. See Small, 136 F.3d at 1335; Armendariz-Mata, 82 F.3d at 683. Cf. One Toshiba Color Television , 213 F.3d at 155-56 (finding that even notice by direct mail to the correct prison facility might be insufficient under some circumstances).


[42] Administrative forfeitures empower the government to take ownership of property without resort to any judicial proceeding whatsoever, placing due process rights at particular risk. Here, the government did not act as if it were "desirous of actually informing" Minor of the impending forfeiture. We therefore vacate the district court's holding that he received adequate notice.


[43] IV.


[44] Finally, we address the government's statute of limitations argument. The government maintains that even if it provided constitutionally inadequate notice to Minor, limitations now bar this action.


[45] The applicable limitations period, six years, is set forth in 28 U.S.C. § 2401(a) (1994). That statute, enacted as part of the Tucker Act, is a catch-all provision; it establishes a general limitations period for civil lawsuits against the United States not otherwise covered by a more specific limitations period. Even if, as here, no specific limitations period applies directly to the cause of action at issue, a federal court will first seek to "borrow" a limitations period applicable to a closely analogous federal or state action. See, e.g., DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 158 (1983). Minor's action, an equitable cause of action derived from the Constitution, "is not closely analogous to any statutory cause of action." See Polanco, 158 F.3d at 653 (declining to adopt three-year limitations period applicable to Bivens actions). Accordingly, we do not "borrow" a limitations period; rather we apply the six-year period prescribed by § 2401.*fn6


[46] To do so we must ascertain when Minor's cause of action accrued. The accrual date is the date on which Minor was on reasonable inquiry notice of the forfeiture, i.e., the earlier of the following: when he first became aware that the government had declared the currency forfeited, or when an inquiry that he could reasonably have been expected to make would have made him aware of the forfeiture. We emphasize that the limitations period begins to run, not when the claimant is on reasonable inquiry notice of the government's seizure of the property, or even when reasonable inquiry would have led to notice of the government's intention to declare forfeiture, but when reasonable inquiry would have led to notice of the forfeiture declaration itself. Cf. Polanco, 158 F.3d at 654 ("Polanco's cause of action accrued when he discovered or had reason to discover that his property had been forfeited without sufficient notice."). The cause of action can accrue no earlier than the date that forfeiture actually occurred, because until that date the owner has not actually incurred the specific injury alleged--deprivation of property without constitutionally adequate notice.


[47] In this case, therefore, the earliest date on which the cause of action could have accrued is the date of the forfeiture, December 16, 1991. If Minor's cause of action did accrue on that date, then, unless the limitations period should be tolled, § 2401 bars the present action because Minor did not file this lawsuit until April 16, 1998, six years and four months later. The record, however, is not sufficiently developed for us to determine when the cause of action actually accrued in this case. On remand, the district court must determine whether Minor was on reasonable inquiry notice of the forfeiture declaration before April 16, 1992. If so, absent any reason that the limitations period should be tolled, Minor is barred from proceeding with this action. If not, he may proceed.


[48] In the latter instance, the government itself may have a limitations period with which to contend. Under 19 U.S.C. § 1621 (1994), the government has "five years after the time when the alleged offense was discovered" within which to institute forfeiture proceedings. The circuits have divided on the effect of this limitations period when the government fails to give adequate notice of a forfeiture. Some have held that a finding of inadequate notice voids the prior forfeiture, and that the expiration of the five-year limitations period therefore operates to prevent the government from perfecting its initial declaration of forfeiture. See United States v. Marolf, 173 F.3d 1213 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569 (10th Cir. 1999). Others have held that a finding of inadequate notice simply puts the claimant in the position he would have been in had he received adequate notice at the time of forfeiture; that is, such a finding requires the government to pursue the forfeiture on the merits in judicial proceedings. See Dusenbery, 201 F.3d at 768; Boero v. DEA, 111 F.3d 301, 306 (2d Cir. 1997).


[49] We will not attempt to resolve the issue here because the parties have not briefed the question, and because it may be that it need never be resolved in this case. This is so because if§ 2401 bars Minor's suit, then he has no further remedy. Despite our finding that he received inadequate notice of the forfeiture, Minor may not disturb the government's possession of property if he did not challenge its possession in a timely fashion. Therefore, the district court need reach the issue of the effect of the government's statute of limitations only if Minor's action is itself not barred.


[50] V.


[51] We vacate the judgment of the district court and remand for further proceedings consistent with this opinion.


[52] VACATED AND REMANDED



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Opinion Footnotes

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[53] *fn1 The district court ultimately vacated the latter conviction when the government conceded that, in light of Bailey v. United States, 516 U.S. 137 (1995), it could not establish all of the elements of the offense.


[54] *fn2 In the future, we will require a litigant in Minor's position, bringing an equitable challenge to a completed forfeiture, to comply with the fee provisions of the Prisoner Litigation Reform Act, 28 U.S.C. § 1915 (Supp. IV 1998). In United States v. Jones, 215 F.3d 467 (4th Cir. 2000), argued the same day as this case, we held that a motion for return of property under 41(e) constitutes a civil action to which these fee provisions apply. The reasoning in Jones requires the conclusion that the fee provisions apply in this related context as well.


[55] *fn3 Minor styled his action in the district court as one under Fed. R. Crim. P. 41(e). That rule provides that "[a] person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property." Minor's action has many substantive affinities with a motion for return of property under Rule 41(e), see supra n.2, but it stretches the rule too far to say that Minor's cause of action here derives directly from it. A criminal defendant may move pursuant to Rule 41(e) for return of property seized in his criminal case even after the close of trial. See United States v. Garcia , 65 F.3d 17, 20 (4th Cir. 1995). Here, however, not only has the criminal case closed, but the seized property has long since been declared forfeited to the government. It seems unlikely that Rule 41(e) provides a remedy when the challenge comes years after the completion of the forfeiture.


[56] *fn4 The APA makes reviewable any"final agency action for which there is no other adequate remedy in a court," 5 U.S.C.§ 704, so long as the statute under which the agency acted does not preclude judicial review or the agency action is not "committed to agency discretion by law." 5 U.S.C. § 701(a).


[57] *fn5 Recognition of the right to challenge an administrative forfeiture based on inadequate notice also serves to effectuate safeguards built into the framework of the forfeiture statute itself. Under that statutory framework, "[a]ny person claiming such [property] may at any time within twenty days . . . of the notice of seizure file with the appropriate customs officer a claim stating his interest therein" and thereby force the government to proceed by judicial condemnation. See 19 U.S.C. § 1608; see also Woodall, 12 F.3d at 793 (noting that,"[u]nder the Tariff Act, the statutory right to compel an agency to proceed by judicial condemnation is a vital congressional restraint on arbitrary confiscations"). The opportunity for interested parties to contest an administrative forfeiture in a judicial forum has little meaning in the absence of notice to those parties that the forfeiture is taking place.


[58] *fn6 We note that § 2401 governs actions brought under both the APA, see, e.g., Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997), and the Tucker Act. Thus, even if it were appropriate to"borrow" a limitations period from an analogous cause of action, a court might well look to § 2401.