USCA1 Opinion

March 10, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________

No. 92-2001
JORGE SARIT AND DENNIE ESPAILLAT,
Plaintiffs, Appellees,
v.
U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,
Defendants, Appellants.
____________
ERRATA SHEET
The

opinion of this court

issued on February

23, 1993, is

bottom:

should

amended as follows:
Page
"statute".

8, line

from the

"statue"

read

February 23, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-2001

JORGE SARIT AND DENNIE ESPAILLAT,

Plaintiffs, Appellants,

v.

U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________
Cyr, Circuit Judge.
_____________

____________________

David N. Cicilline for appellants.

__________________
Rachel V. Lee,
______________

Trial

Attorney, Civil

Division,

United

Department of Justice, with whom Stuart M. Gerson, Assistant

________________
General,

United States

Director, Torts

Department

Branch, Civil

of Justice,

Sta

Attor

Helene M. Goldbe
_________________

Division, United States

Department

Justice, Michael P. Iannotti, Assistant United States Attorney for

___________________

District of Rhode Island and Lincoln C. Almond, United States Attor

_________________
for the District of Rhode Island were on brief, for appellees.

____________________

February 23, 1993

____________________

BOWNES, Senior Circuit Judge.

____________________

This case

involves

plaintiffs-appellants' attempts to recover $41,448.00 in U.S.

currency,

which

was

seized

by

the

United

Enforcement

Administration

("DEA")

forfeited.

In

action under

their civil

and

States

Drug

now

been

has

28 U.S.C.

1331

against the DEA and its agents, plaintiffs appeal two rulings
by

the

district court.

First,

court's grant of partial

upon

its

finding

constitutionally
forfeiture

adequate

court's

dismissal of

granted

partial

notice

claim,

it

plaintiffs' Fourth

plaintiffs

notice

the case

no

of

the

Second, plaintiffs

summary

the

summary judgment for the defendants

that

proceeding.

plaintiffs challenge

on the

judgment
longer

had

Amendment claim.

of the district court.

I.
I.
Background
Background

had

administrative
challenge

basis that,

on

the

the

once it

Fifth Amendment

jurisdiction
We

received

to

hear

affirm the decision

__________
The procedural background of this case is important
and we
On

rehearse it

July 28,

plaintiffs'

in detail, proceeding

1989,

DEA agents

then-residence located

Providence, Rhode Island.

without a warrant.

On

the

$41,448.00 from

at 114

Alvin Street

the
in

The attendant search was conducted

August 21, 1989, plaintiffs'

filed a motion pursuant

return of

seized

chronologically.

to Fed. R. Crim. P.

currency.

On

September 1,

counsel

41(e),1 seeking
Assistant

U.S.

Attorney Michael Iannotti objected to this motion and filed a

memorandum

of law

which

has played

arguments before this court.

focal role

in

the

In that memorandum, he informed

plaintiffs and the district court that the currency was being
held

for

administrative

forfeiture pursuant

U.S.C.

881(d) and Title 19 U.S.C.

provided

the seizure

currency.
be

sent

to all

those

who

may

Title

have

21

The memorandum

had been assigned

The memorandum also stated

currency," and
next two

number that

1607.

to

to the

that "a notice [would]

an interest

in

the

that "publication [would] commence within the

months."

The Assistant U.S.

Attorney averred that

the

assignment

plaintiffs

of

seizure

number

would

permit

the

"at any time, without waiting for the DEA to take

___________

any further action,

DEA thus causing
Attorney

for

to file a claim

the DEA
the

to refer

initiation

and cost bond

the matter

of

judicial

with the

to the

U.S.

forfeiture

proceedings" (emphasis in original).

____________________
1
Fed. R. Crim. P. 41(e), Motion for
provides in pertinent part:

Return of Property,

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.
-5-

On or about

September 19, the

DEA sent notice

of

the administrative forfeiture proceeding by certified mail to

114

Alvin Street, where the

notice

contained required

memorandum,

currency had been

seized.

information, not included

concerning procedures to

The

in the

be followed, deadlines

to be met, and the right

of a petitioner to proceed in forma

__ _____

pauperis in lieu of the posting of a cost bond.

________
was

subsequently returned to

made no

further attempts to

counsel of the pending

On September

This notice

the DEA "unclaimed."

The DEA

notify the plaintiffs

or their

forfeiture other than by publication.

21, following

a conference with

court pursuant to the 41(e) motion, plaintiffs sent a

to the

DEA advising it

under the

of their

Federal Tort Claims

notice, marking the beginning

which plaintiffs' right
bond would

Act.

On

plaintiffs' 41(e)
the administrative

The first

letter
a claim

publication

of the twenty-day period after

to file a claim

expire, appeared in

September 27.

intention to file

and to post a

the

October 13, the district court

motion on equitable grounds,
forfeiture proceedings.

administrative forfeiture

entered.

-6-

cost

the newspaper USA Today, on

__________
denied the
deferring to

The plaintiffs'

right to file a claim with the DEA expired on October 17.

November 2,

the

was decreed

On
and

On

November 8,

the

plaintiffs,

having

procured

money to post a cost bond, filed a formal claim with the DEA.
Plaintiffs
motion.
for

also moved

On

reconsideration of

December 21, defendants

reconsideration

memorandum,
been

for

and

administratively

plaintiffs' motion
completed.

in

that the

their

accompanying

The

that

their

already

court

because the forfeiture

After learning

motion

currency had

forfeited.

as moot

41(e)

objected to the

included,

the information

their

denied
had been

property had

been

forfeited, plaintiffs filed a motion to vacate the forfeiture

on December 29, which
lack

of

motion was dismissed by the

jurisdiction.

Underscoring

its

court for

awareness

that

plaintiffs had been trying to resolve this matter for several

months, the

court advised plaintiffs

in its order

that the

proper method for collateral attack was a civil rights action

under Title 28 U.S.C.

1331.

Thereafter, plaintiffs filed a civil

against the DEA and
rights

under

the

rights action

its agents alleging violations of

Fifth

Amendment,

claiming

their

insufficient

notice of the administrative proceeding, and under the Fourth

Amendment,

claiming

course

warrantless,

court

initially

district

of

that the

currency

was

non-consensual
denied

seized in
search.

defendants'

motions

the
The
to

dismiss and for summary judgment, finding that the plaintiffs

had stated a valid cause of action under 28 U.S.C.

1331, by

-7-

pleading violations
that

of the Fourth and

sovereign immunity was

Procedures

Act, 5

U.S.C.

Fifth Amendments, and

waived under the Administrative

701 et
__

seq.
___

The court

found

summary judgment inappropriate because of a dispute regarding

consent

in the Fourth Amendment claim, and the need for more

evidence on the issue of adequate notice underlying the Fifth

Amendment claim.
Both

parties

later

filed

motions

for

partial

summary judgment on the issue of the adequacy of notice.

district

court, on

July 15,

1991, granted

partial summary

judgment for the

defendants on the notice issue,

constitutionally

sufficient

notice

to the

seized.

address

The court buttressed

that plaintiffs had

September

from

that
which

memorandum

finding it

the government

had

sent

the currency

had

been

its conclusion with

received the
putting

The

Assistant U.S.
them

on

the fact
Attorney's

notice

that

forfeiture proceeding would ensue.

Trial on the Fourth
11.

The

defendants moved

jurisdiction.

judgment,

moved for

case for lack

court

not to

alter

dismissed

the

of

reconsideration of

of partial summary judgment

Upon deciding
the

to dismiss the

The plaintiffs

the court's grant

issue.

Amendment issue began on March

on the notice

its grant
case

of summary

for

lack

of

jurisdiction finding that, because

the notice issue had been

resolved against plaintiffs, they

thereby lost the waiver of

-8-

sovereign immunity

that had

allowed the court

the case in the first instance.

II.
II.

to entertain

Discussion
Discussion
__________
A.
A.

Notice/Due Process
Notice/Due Process
__________________
We

begin

defendants

failed

by

addressing

adequately

to

administrative forfeiture proceeding.

plaintiffs'
notify

claim

them

of

that
the

Because the district

court granted defendants' motion for summary judgment on this

issue, our

review is

inferences in

plenary, and

favor of plaintiffs.

we construe all

factual

See Damaris Rivera-Ruiz

___ ___________________

v. Leonardo Gonzalez-Rivera, No. 92-1558, slip. op. at 2 (1st

________________________
Cir.

Jan. 5, 1993) (citing E.H. Ashley & Co. v. Wells Fargo

__________________
___________

Alarm Servs., 907 F.2d 1274, 1277 (1st Cir. 1990)).

____________
Notice

of

impending

seizures valued at $500,000

U.S.C.

forfeiture proceedings
or less is governed by

involving
Title 19

1607, which provides in pertinent part:

[T]he 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
-9-

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.
The

regulations

provide

for

interpreting

publication

in

circulation in the judicial

for forfeiture is

the

publication

"a

newspaper

requirement
of

general

district in which the processing

brought."

21 C.F.R.

1316.75(a) (1992).

The publication notice must do the following:

(1) Describe the property seized and show the motor
and serial numbers, if any; (2) state the time,
cause, and place of seizure; and (3) state that any
person desiring to claim the property may, within
20 days from the date of first publication of the
notice, file with the custodian or DEA Asset
Forfeiture Section a claim to the property and a
bond with satisfactory sureties in the sum of
$5,000 or ten percent of the value of the claimed
property whichever is lower, but not less than
$250.
21 C.F.R.

1316.75(b) (1992).
There

with

all

address,

is no

required

dispute that

information to

the address

from

defendants sent
plaintiffs'

which the

notice

last

currency was

known
seized.

There is also no dispute that defendants issued proper notice

by publication.

Thus, defendants met the requirements of the

statute.
Plaintiffs

contend

that

defendants

failed

to

satisfy the notice requirements of the

Due Process Clause of

the

the

Fifth

Amendment.

Relying upon

Supreme

Court's

opinion in Mullane v.
_______

Central Hanover Bank & Trust Co., 339

_________________________________
-10-

U.S. 306, 314

this

case

(1950), plaintiffs

was not

"reasonably

argue that

the notice

in

calculated,

under all

the

circumstances, to apprise interested parties of the

pendency

of the action and afford them an opportunity to present their

objections."

Plaintiffs do not facially challenge the notice

provisions in the statute, but draw our attention

"circumstances" affecting

the question of whether

notice was so "reasonably calculated."

It is

pursuit

DEA was fully

in the seized currency,

of their 41(e) motion,

the DEA's

See id.
___ ___

plaintiffs' position that the

aware of their interest

to special

given their

and their letter

to the DEA

informing the DEA that they intended to take action under the
FTCA.
their

Plaintiffs point out that

representation

identity

and address.2

that the

notice

by

had been

assert, it would have been

counsel

the DEA also

and

of

was aware of

their

counsel's

Once the DEA received an indication

returned "unclaimed,"

plaintiffs

simple to ascertain from

counsel

their

current address, as would it have been to notify their

counsel directly of the pending forfeiture.

Cf. Robinson v.
__ ________

Hanrahan, 409 U.S. 38, 40 (1972) (per curiam) (citing Mullane

________
_______
for

the

proposition

that

notice

by

publication

was

insufficient where plaintiffs' names and addresses were known

or "easily ascertainable").

____________________
2
Plaintiffs treat the government, the U.S. Attorney for
Rhode Island and the DEA in Washington, as a single entity.
-11-

We

find

information
the

that

the

DEA

acted

reasonably

on

the

it had when notice was sent by mailing notice to

address from

which the

property was

seized.

We need

determine only whether the DEA's duty changed in the light of

its

subsequent discovery

ineffective.

Given

that

plaintiffs'

the mailed

notice had

vigorous (although

been
tardy)

pursuit of their claim, the fact that the government had been
involved in ongoing

court action

on the very

issue of

the

seizure of
of

plaintiffs' currency, the

plaintiffs' representation

by

government's awareness

counsel, and

upon treatment of forfeitures, the call

generally United States v.
_________ ______________
Coach,
_____

307

U.S.

219,

the frowned

is a close one.

See
___

One 1936 Model Ford V-8 Deluxe

________________________________

226

(1939)

("Forfeitures

are

not

favored; they should be enforced only when within both letter

and spirit of the law.").
to consider all
___
case

other

memorandum
compel
the

of the

pertinent
and

Nevertheless, Mullane
_______
circumstances, and we

factors,

the conduct

of

including

follow, we

find in

hold

this

the government's

plaintiffs' counsel,

us to uphold the finding of

reasons that

counsels us

which

the district court.

that defendants

For

met the

minimum threshold requirements of due process.

1.
1.

Mullane and its Progeny

Mullane and its Progeny
_______________________
We

note at

the onset

contemplates

inquiry

into

the

-12-

that while

Mullane clearly
_______

"peculiarities"

and

the

"practicalities" of a given
interpreted to

require a

case, it has not

party to make

generally been

additional attempts

beyond

notice that is legally satisfactory at the time it is

sent.

See Mullane, 339 U.S. at

___ _______

an

implicit

bad faith

314-15.

standard

into

The Court has read

the notice

inquiry,

overturning notice even where formal procedures were followed

if the notifying party knew or had reason to know that notice
would be ineffective.
U.S.

37 (1972)

mailed
where
and

See,
___

e.g., Robinson v. Hanrahan,

____ ________
________

(per curiam)

to interested

party's

(in forfeiture
home address

409

action, notice
was

inadequate

government knew party was incarcerated awaiting trial,

where party

proceedings and
Covey
_____

remained in
did not

custody

throughout forfeiture

receive notice until

his release);

v. Town of Somers, 351 U.S. 141 (1956) (in foreclosure

______________

action,

notice

by

publication,

mailing

and
___

posting

was

inadequate where individual involved was known by the town to

be mentally disabled and under the protection of a guardian).
Knowledge

of

the

likely

effectiveness of

the

notice

is

measured from the moment at which the notice was sent.

Virtually
plaintiffs

share the

all

of

the

cases

feature--missing from

the government knew at the time

relied

upon

by

this case--that

the notice was sent that the

notice

was

likely

to

be

ineffective.3

See
___

Fisher
______

v.

____________________
3
Only in one case cited by plaintiffs did the court
require the DEA, absent any evidence of bad faith, to make
additional attempts to notify the defendant when notice was
-13-

Stutman, Nos. 85-3133-MA,

_______

85-4307-MA, 1987 U.S. Dist.

10682, at *6-7

Nov. 6, 1987)(DEA

forfeiture to
in

(D. Mass.

invalid address when they

their possession);

603, 606 (W.D. Va.

with

sent notice

of

had correct address

Gutt v. United States, 641

____
______________

1986) (DEA mailed notice to

F. Supp.

Gutt's hotel

knowledge that he no longer resided there and failed to

apprise

attorney

informed

who

in writing);

Supp. 451,
home

LEXIS

Cepulonis
_________

452 (E.D.N.Y. 1982)

address

when party

United States, 676 F.2d

_____________
publication

specifically

inadequate

was

had

requested

to

be

v. United States, 543

______________

F.

(DEA sent notice

incarcerated);

cf. Vance
___ _____

183, 187 (5th Cir. 1982)

where

government

to party's

knew

v.

(notice by
business

claimant was

engaged in

United States,
______________
(government

304

could not

F.

and claimant's address);

Supp.
rest on

993,

999

Jaekel v.
______

(S.D.N.Y.

publication notice

1969)

where it

knew claimant's name and address).

Thus, courts are reluctant under Mullane to
_______
a

extend

notifying party's duty beyond initial satisfactory notice.

Only exceptional

circumstances would compel us

to so extend

the DEA's duty, absent indication that it knew or should have

known that the notice would be ineffective.
____________________
returned unclaimed.

See Montgomery v. Scott, 802 F. Supp.

___ __________
_____
930 (W.D.N.Y. 1992).
Interestingly, the court relied upon
the fact that the plaintiff was being prosecuted in a
criminal action and that the DEA could have reached him
through that vehicle.
Unlike the case before us, in
Montgomery, the claimant had no actual notice whatsoever of
__________
the pendency of the forfeiture proceeding.
-14-

2.
2.

Circumstances Affecting the Adequacy of the Notice

Circumstances Affecting the Adequacy of the Notice
__________________________________________________

Rather

than

uncovering exceptional

circumstances

compelling us to find that the government had a duty over and

above

reasonable and technical satisfaction of the statutory

requirements, we find that the damage done by the ineffective

notice could
counsel.

and ought to

The

have been stemmed

Assistant U.S.

by plaintiffs'

Attorney's memorandum

to the

district court objecting to plaintiffs' Rule 41(e) motion put

counsel on

notice that a forfeiture proceeding would ensue.

Even though, as counsel for plaintiffs argued, the memorandum

did

not

specify an

counsel lacked

exact

of

publication, and

a precise indication

the twenty-day period would

general

time

notice

of

the

forfeited

within

the

taken.4

The statute

memorandum)

and

the

available to

counsel.

of the date

from which

run, he certainly had sufficient

risk that
coming

the

months

covering

property
if

would

be

were

not

(cited in

the

action

forfeitures

regulations

interpreting

The regulations plainly

consequence of forfeiture in

thus

twenty days.

it,

were

explain the

Counsel

had only

to look to these sources.

____________________
4
The Assistant U.S. Attorney's memorandum was filed on
September 1, 1989.
The DEA could have published notice,
thereby
beginning the
twenty-day period
during which
plaintiffs could challenge the forfeiture, any time after
that date. Plaintiffs' did not file a formal claim with the
DEA until November 8, more than two months later.
-15-

We also do not credit plaintiffs' argument that the

Assistant

U.S.

Attorney's

reference

ability to

initiate action "at any

in

sanctioning

effect

plaintiffs'

to

the

plaintiffs'

time," caused confusion,

delay.

Although

the

memorandum might well have confused plaintiffs had it gone to

them

directly, it ought not to

Counsel is

charged

with

have confused their counsel.

knowledge of

knowledge is imputed to plaintiffs.

in

which

the

phrase appeared,

statement, "at
statement

of

do

the government's

decline to exercise its

law,

and

not

find that

the

misleading.

The

argument that

the

equitable powers under

Rule 41(e), because of the availability of the at-law

provided

by the

argument pointed
Rule 41(e) more

forfeiture
out the

that no

could go

regulations.

remedy
The

move under

quickly than the government could process an

undue delay

ahead and

without waiting,

statute and

plaintiffs' ability to

administrative forfeiture.
point

that

Moreover, in the context

any time," was deliberately

was part

court should

we

the

The

U.S. Attorney was making the

would be caused

plaintiffs, who

challenge the administrative

should the

court decide to

proceeding

defer to

that

proceeding.
In

addition

to

putting

counsel on

notice

forfeiture, the memorandum contained a seizure

counsel could
action,

have

used

to

and to obtain from

ascertain the
the DEA the

of

the

number, which
status

of

the

anticipated date of

-16-

publication notice.
lies

plainly with

Although

the government,

their counsel were aware that

be sent in the
the

DEA of

the duty of

providing notice

once the

notice of the forfeiture would

ensuing two months, they could

their own

plaintiffs and

change of

have notified

address--they were

in the

better position as far as that information was concerned.

Plaintiffs'
the

cost bond

and

explanation for their delay in posting

thereby challenging

the forfeiture

their difficulty in coming up with the funds to do so.

was
It is

unfortunate that plaintiffs did not receive the notice mailed

by the
needy

DEA which plainly

claimant

to proceed

posting the cost bond.

explains the
in
__

forma
_____

right of a
pauperis in
________

poor and
lieu

Once again, however, plaintiffs

of
were

represented by counsel; counsel

his

clients'

rights

to

is charged with knowledge of

proceed

in
__

forma
_____

pauperis,
________

and

counsel's knowledge is imputed to his clients.

We

are not

entirely unsympathetic

to plaintiffs'

argument that the circumstances affecting notice were altered

by the

government's ongoing

litigation

over the

involvement with plaintiffs

return of

the

seized property

plaintiffs' persistent pursuit of their rights.

government could have

choice

We

are also troubled

of publication notice in

consider

particularly

notice

attorney

by the

USA Today, which

_________

effective

and by

No doubt the

ascertained from plaintiffs'

their current address.

in

DEA's

we do not

vehicle

for

-17-

Providence, Rhode Island.

only a

publication "of

district in

The

regulations, however, require

general circulation in

which the . .

. forfeiture is brought,"

find no violation of due process in this regard.

1316.75(a).

the judicial

The government's conduct

and we

21 C.F.R.

simply did not rise to

a violation of the due process clause of the Fifth Amendment.

B.
B.

Dismissal for Lack of Jurisdiction

Dismissal for Lack of Jurisdiction
__________________________________
We next

the case on

review the district

the basis that it lost jurisdiction

remaining Fourth
resolved

against

question

of

plenary.

court's dismissal

Amendment claim
plaintiffs.

law.

Therefore,

to hear the

once the notice

This
our

issue

issue was

poses

standard of

See Liberty Mutual Ins. Co.

___ ________________________

of

review

pure
is

v. Commercial Union
_________________

Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).

________
Because
directed at the
issue

DEA, an

involves the

immunity.
give

the plaintiffs' Fourth

agency of the

United States'

Amendment claim is
United States,

waiver of

this

its sovereign

Only an express waiver of sovereign immunity will

a court jurisdiction to hear a claim against the United

States.

Lehman
______

v. Nakshian, 453 U.S. 156, 161

________

Administrative Procedures Act, 5

-18-

U.S.C.

(1981).

The

702, provides such

waiver

waiver

for
is,

Specifically

certain forms
however,

of

limited

relevant to

equitable
by

this

APA,

case is

relief.5

That

U.S.C.

701.

701(a)(1),

which

limits waiver where "statutes preclude judicial review."

issue

presented is

regulations
judicial

whether the

implementing

relief,

it,

constitute

within the meaning of

forfeiture statute
by providing

statute

an

The

and the

avenue

precluding

for

review

701(a)(1).

The district court originally obtained jurisdiction

over this case due to plaintiffs' claim that constitutionally
deficient notice prevented them,

in the first instance, from

meeting the deadlines necessary

to pursue judicial relief as

provided by the forfeiture

most

challenges

to

statute and regulations.

forfeiture

would be

Whereas

foreclosed

by

____________________
5
Administrative
in pertinent part:

Procedures Act, 5 U.S.C.

702, provides

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by
agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.
An action in a court of the United States seeking
relief other than money damages and stating a claim
that an agency or an officer or employee thereof
acted or failed to act in an official capacity or
under color of legal
authority shall not be
dismissed nor relief therein be denied on the

ground that it is against the United States . . .

Nothing herein (1) affects other limitations on
judicial review or the power or duty of the court
to dismiss any action or deny relief on any other
appropriate legal or equitable ground; or (2)
confers authority to grant relief if any other
statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.
-19-

plaintiffs' failure to
judicial

relief

utilize the

provided

the

regulations,

courts

adequacy

notice, reasoning

of

available
pending

have

in

mechanism for
forfeiture

entertained
that

statute

challenges

the

obtaining
and

to

the

mechanism is

not

to a plaintiff who is not properly notified of the

forfeiture.

See, e.g.,
___ ____

Marshall Leasing, Inc. v.

_______________________

United States, 893 F.2d 1096, 1102-03 (9th Cir. 1990); Willis
_____________
______
v. United States, 787 F.2d 1089, 1092-93 (7th Cir. 1986).
_____________
Once

the district

court found,

as have

we, that

notice was constitutionally sufficient, it further determined

that

701(a)(1) applied to deny the court jurisdiction over

the remainder of the

had had

case.

The court found

the means available under the

that plaintiffs

forfeiture statute to

take the case

to do so.

to a judicial forum, and that

See Sarit v. Drug Enforcement Admin., 796 F. Supp.

___ _____
_______________________

55, 59 (D.R.I. 1992)

available to
forum

they had failed

in

a claimant

which

seizure.'"

("The forfeiture statute `clearly makes

to

invoking the remedy

test

(citation

the

legality

omitted)).

of

an appropriate
the

Concluding

contested
that

the

forfeiture statute was a "statute" which "preclude[d] review"

under

701(a)(1), because the statutory

avenue for judicial relief,

scheme provided an

the district court dismissed the

case.
The

Supreme

whether Congress

Court

intends to

has

held

preclude

that

in

assessing

judicial review,

the

-20-

intention

need not be found

statute, but should

statutory

scheme and

in the express

language of the

be determined from the structure

from

Community Nutrition Inst.,

__________________________

its objectives.
467 U.S. 340,

district court correctly interpreted

of the

See Block
___ _____
345 (1984).

v.
The

701(a)(1) to find that

the

forfeiture statute

precluded

judicial

review in

this

case.
Plaintiffs

ask

us

to

extend the

exception

for

constitutionally deficient notice to hear the merits of their

Fifth

Amendment claim.

It

is their position

that, even if

the notice

was constitutionally

adequate, it still
________

effective.
_________

In practical terms, plaintiffs claim, they had no

knowledge of

the deadlines for filing a cost bond.

legal defect

in the notice,

residual

ineffectiveness

jurisdiction
again,

we

if

where Congress
are

however, we cannot
such
has

sympathetic

there be,

by the

rule of

with

cannot

come

in, deus
____

law and

Absent a

correct any
by

extending

spoken otherwise.
plaintiffs'

attempts to obtain a hearing on the merits.

bound

was not

and

frustrated

We are, however,

the adversary

ex machina,
__________

Once

process.

save a

We

claim where

notice is constitutionally sufficient and any failures in its

effectiveness

should

have

been

counsel.

C.
C.

Equitable Jurisdiction
Equitable Jurisdiction
______________________

-21-

corrected

by

plaintiffs'

Plaintiffs' final request

Fourth Amendment
jurisdiction.

claim by

plaintiffs claimed
district

court.

that this issue

below.

we reach

invoking our powers

The government, in

issue was not raised

is that

of equitable

its brief, argued that the

At oral argument,

that the issue

their

attorney for

had been briefed

for the

We find, however, no evidence in the record

had been raised

We are, therefore, precluded

before the district

court.

from entertaining it on appeal.

See United States v. Curzi, 867 F.2d 36,

___ _____________
_____

44 (1st Cir. 1989);

Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894

________
___________________

(1st Cir.

1979).

The decision of the district court is affirmed.

affirmed
________

-22-