United States v. Minor ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6047
CURTIS BERNARD MINOR,
Defendant-Appellant.
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)
Argued: May 4, 2000
Decided: September 13, 2000
Before WILKINS, MOTZ, and KING, Circuit Judges.
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Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Wilkins and Judge King joined.
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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.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
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 pris-
oner, 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 administra-
tive forfeiture and vacate the district court's contrary holding, but
because the record is unclear as to when Minor did learn of the forfei-
ture, we remand for a determination of whether the statute of limita-
tions nonetheless bars the present action.
I.
On July 30, 1991, federal marshals and Winston-Salem police offi-
cers arrested Minor outside of his home for various parole violations.
The officers took Minor into custody, where he has remained continu-
ously since his arrest.
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 hav-
ing used and carried a firearm during a drug trafficking crime.1
In October 1991, the Drug Enforcement Administration (DEA) ini-
tiated 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
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1 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.
2
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 sum-
mary 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 govern-
ment may seek forfeiture of the property only through judicial pro-
ceedings. See id. § 1608.
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 Novem-
ber 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."
Although Minor was in state custody for a brief period after his
arrest, the record indicates that he has been in federal custody contin-
uously since at least September 17, 1991. The record does not dis-
close precisely where Minor was incarcerated in October and
November 1991, but the government does not dispute Minor's asser-
tion 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.
The DEA received no claims to the $5214 seized from Minor's res-
idence. 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
3
of forfeiture in a judicial forfeiture proceeding in a district court of
the United States." See 19 U.S.C. § 1609.
On April 16, 1998, more than six years after the government's dec-
laration 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."
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 pauperis2
and appointed counsel for him.
II.
We must first decide whether we have jurisdiction to hear Minor's
appeal.
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).
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2 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 provi-
sions apply. The reasoning in Jones requires the conclusion that the fee
provisions apply in this related context as well.
4
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 rea-
son 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 govern-
ment's suggestion that we transfer the case to the Federal Circuit.
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 pro-
cess requirements"). To date, at least nine courts of appeals have con-
sidered due process challenges to administrative forfeitures, and none
has found that it lacked jurisdiction because of the procedural provi-
sions 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
5
(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 continu-
ing authority of Onwubiko), every other circuit that has addressed the
jurisdictional issue has viewed challenges like Minor's as we do--as
equitable actions.
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.3
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)).
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 Administra-
tive 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 administra-
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3 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 dis-
trict 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 pos-
session 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.
6
tive forfeiture. See Armendariz-Mata, 82 F.3d at 682.4 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.
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. Recog-
nizing 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 ade-
quate 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 Constitu-
tion."); see also Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 404 (1971) (Harlan, J., concurring in the judgment) (dis-
cussing "the presumed availability of federal equitable relief against
threatened invasions of constitutional interests").
Recognition of an equitable cause of action to challenge an admin-
istrative forfeiture based on inadequate notice--a cause of action that
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4 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).
7
has been recognized by at least nine other courts of appeals--falls
squarely within our discretion to safeguard constitutionally-protected
interests.5 We therefore find that we have jurisdiction to consider
Minor's constitutionally-derived equitable challenge to the adminis-
trative forfeiture of the currency under the provisions for general fed-
eral question jurisdiction. 28 U.S.C. §§ 1291, 1331 (1994).
III.
We turn now to the question of whether the government provided
adequate notice to Minor of the administrative forfeiture of the cur-
rency. 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.
In Mullane, the Supreme Court gave content in the forfeiture con-
text 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:
[W]hen notice is a person's due, process which is a mere
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5 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 frame-
work, "[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 govern-
ment 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 oppor-
tunity 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.
8
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). 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).
Applying the Mullane standard, the First, Second, and Eighth Cir-
cuits 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 coopera-
tion 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.
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 fed-
eral 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
9
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.
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 com-
pleted proceedings based on nothing but bare allegations of a party
who had lost property." Id. Second, the court read Supreme Court pre-
cedents 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)).
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 pris-
oner 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 sub-
stantially 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 govern-
ment introduced evidence that mail delivery procedures existed at that
10
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.
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 resi-
dence 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 con-
stitutional 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).
Administrative forfeitures empower the government to take owner-
ship 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.
IV.
Finally, we address the government's statute of limitations argu-
ment. The government maintains that even if it provided constitution-
ally inadequate notice to Minor, limitations now bar this action.
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 limita-
tions 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.
11
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 lim-
itations period; rather we apply the six-year period prescribed by
§ 2401.6
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 declara-
tion itself. Cf. Polanco, 158 F.3d at 654 ("Polanco's cause of action
accrued when he discovered or had reason to discover that his prop-
erty 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 constitu-
tionally adequate notice.
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 devel-
oped for us to determine when the cause of action actually accrued
_________________________________________________________________
6 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 limita-
tions period from an analogous cause of action, a court might well look
to § 2401.
12
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.
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 oper-
ates 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). Oth-
ers have held that a finding of inadequate notice simply puts the
claimant in the position he would have been in had he received ade-
quate notice at the time of forfeiture; that is, such a finding requires
the government to pursue the forfeiture on the merits in judicial pro-
ceedings. See Dusenbery, 201 F.3d at 768; Boero v. DEA, 111 F.3d
301, 306 (2d Cir. 1997).
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.
V.
We vacate the judgment of the district court and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED
13