UNITED STATES OF AMERICA, PETITIONER V. JOHN VON NEUMANN No. 84-1144 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision and statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-2a) is reported at 729 F.2d 657. The previous opinion of the court of appeals (App., infra, 15a-32a) is reported at 660 F.2d 1319. /1/ The findings of fact and conclusions of law of the district court (App., infra, 35a-40a) are unreported. JURISDICTION The judgment of the court of appeals was entered on March 30, 1984. A petition for rehearing was denied on September 18, 1984 (App., infra, 13a-14a). On December 6, 1984, Justice Rehnquist granted an extension for filing a petition for a writ of certiorari to January 15, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION AND STATUTES INVOLVED The Fifth Amendment to the Constitution provides in pertinent part: No person shall be * * * deprived of life, liberty, or property, without due process of law * * *. 19 U.S.C. 1497 provides: Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to a forfeiture and such person shall be liable to a penalty equal to the value of such article. 19 U.S.C. 1618 provides in pertinent part: Whenever any person interested in any vessel, vehicle, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws * * * or under the navigation laws, * * * a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, * * * if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just * * *. QUESTIONS PRESENTED 1. Whether the statutory provision that allows a claimant to petition the Customs Service for discretionary remission or mitigation of penalties for violations of the customs laws creates a property interest subject to the requirements of the Due Process Clause of the Fifth Amendment. 2. Whether, assuming that due process requirements apply to the remission decision, they impose some obligation of prompt disposition that could be violated by the mere passage of 36 days from the filing of a petition to its disposition. STATEMENT In March or April 1974, respondent, an automobile dealer, purchased a 1974 Jaguar Panther automobile in Switzerland and shipped it to Vancouver, Canada, with the intention of bringing it into the United States (Tr. 13, 20-21). For the purpose, respondent had the automobile registered in the State of California and obtained California license plates for it (App., infra, 36a). On January 20, 1975, respondent arrived in Vancouver to take possession of the vehicle and obtained from Canadian Customs a release form authorizing him to transport it through Canada to the United States-Canadian border in British Columbia. Canadian Customs officers instructed him to delivery the form to the Canadian Customs border station before leaving Canada. Tr. 27-30, 151; App., infra, 16a-17a, 36a. Later that day, respondent drove south toward the United States border. After failing to stop first at the Canadian Customs station to surrender the release form as he had been instructed, he arrived at the United States border checkpoint at Blaine, Washington, at approximately 5:00 p.m. Tr. 31-32; App., infra, 17a, 36a-37a. /2/ Earlier that day Canadian Customs officials had alerted United States customs officers at the Blaine checkpoint that a Jaguar Panther automobile had been off-loaded at the Vancouver ocean terminal and might be driven across the border into the United States (Tr. 110-111). As respondent drove up to the Customs primary inspection point, the inspector on duty recognized that the automobile matched the description given by the Canadians. After the inspector inquired whether respondent was a United States citizen and how long he had been outside the United States, he asked whether respondent had purchased or acquired anything outside the United States (Tr. 113). When respondent answered negatively, the inspector asked him whether he had anything to declare to Customs, "to make sure there was no mistake about what information was needed" (Tr. 114). Respondent indicated that the only property in his possession was his personal belongings (ibid). App., infra, 17a, 37a. /3/ Following this exchange, the inspector directed respondent to park his car and to enter the Customs station. He then referred the case to his supervisor, giving as the reason for additional inquiry respondent's failure to declare the vehicle. Tr. 115-116. When the supervisory inspector asked respondent why he had failed to declare his automobile, respondent answered that he did not think he was required to. The officer then informed him that the vehicle was being seized because of his failure to declare it. Tr. 144-145, 148-149; App., infra, 17a-18a. See 19 U.S.C. 1497, 1602. The supervisor then completed the necessary seizure documents and assisted respondent in preparing a "Petition for Remission or Mitigation of Forfeitures and Penalties Incurred." In his very brief, handwritten petition, respondent stated that he "had no intention of avoiding U.S. Customs duties" and explained that he had mistakenly arrived at the United States Customs office after attempting to locate Canadian Customs for the purpose of surrendering his Canadian release form. C.A. App. 10; App., infra, 18a. /4/ Upon completion of the necessary documents, the supervisor explained that respondent could obtain the release of his vehicle by posting its value /5/ and arranged for respondent to be transportated to a local hotel (Tr. 51, 155-159). 2. Two weeks later, on February 3, 1975, respondent posted a bond for $24,500, the appraised value of his car, and Customs returned the vehicle to him (App., infra, 19a). On February 12, 1975, respondent filed with Customs a "Supplement to the Petition for Remission" in which he provided a detailed account of the circumstances surrounding his attempt to bring the automobile into this country. Respondent alleged for the first time that the customs inspector had never inquired whether respondent had anything to declare; he also repeated his earlier claim that he fully intended to pay the duty on the automobile (C.A. App. 11-14). Petitioner did not, however, request that his petition be acted upon with expedition. On February 25, 1975, the Seattle District Director of the Customs Service /6/ informed respondent that, upon consideration of his petition and the reported facts, the penalty for failing to declare the car was being remitted to $3,600. The District Director therefore refunded $20,900 to respondent (C.A. App. 15). Respondent obtained an administrative review of this determination, and on April 14, 1975, the Regional Commissioner of Customs in San Francisco upheld the $3,600 penalty assessment (C.A. App. 17). App., infra, 19a. 2. Respondent then filed the instant suit in the United States District Court for the Central District of California, seeking, inter alia, return of the $3,600 penalty and a declaration that the seizure of his automobile and the imposition of a penalty were unlawful (C.A. App. 2-9). /7/ After an evidentiary hearing, the district court found that respondent had violated 19 U.S.C. 1497 by failing to declare his automobile and that, accordingly, the seizure of the vehicle by Customs was proper and the automobile was subject to forfeiture (App., infra, 39a). The district court also found that the remission and mitigation procedures followed by Customs "were proper" (ibid.). 3. The court of appeals affirmed the district court's determination that the seizure of respondent's vehicle was proper, finding that "(t)he record fully supports the district court's conclusion that (respondent) attempted to introduce his car into United States commerce without declaring it, despite an opportunity to do so." App., infra, 20a. It reversed, however, the district court's holding that the procedures followed by Customs in acting upon respondent's petition for mitigation were proper. Proceeding from the premise that in cases involving the seizure of an automobile "due process requires the Customs Bureau to act promptly in ruling on petitions for remission or mitigation under 19 U.S.C. Section 1618" (App., infra, 30a), it held that "(t)he (one month) delay in processing (respondent's petition for remission or mitigation * * * violated his due process right to prompt consideration of his claim" (id. at 32a). /8/ The court then went on to articulate specific standards to be used by Customs prospectively to assure the prompt processing of petitions for administrative relief. The court stated that Customs should, unless "unusual circumstances" require a brief delay, act on all petitions within 24 hours of receipt and provide the claimant an opportunity to make an oral appearance to argue his claim (id. at 31a-32a & n.16, 33a-34a). 4. The government sought certiorari, and this Court granted the petition and vacated and remanded for reconsideration in light of United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555 (1983). 462 U.S. 1101 (1983). On remand, the court of appeals adhered in substantial part to its previous decision (App., infra, 1a-12a). The court found that this Court's decision in $8,850 "reinforce(d)" its view that due process rights attach to the processing of the petition for remission, and therefore the court reaffirmed its earlier holding that due process requires Customs to dispose of those petitions promptly (id. at 7a). With respect to the standards it had established for considering petitions for remission or mitigation, the court of appeals drew back from the 24-hour limit that it had imposed, noting that $8,850 had indicated that a due process inquiry should be a flexible one that depends on the facts of a particular case (App., infra, 8a). Relying on $8,850, the court adopted the four-factor analysis of Barker v. Wingo, 407 U.S. 514 (1972), as the appropriate framework for considering a claim of violation of due process through delay in processing a petition for remission or mitigation (App., infra, 8a-9a & n.6). The court of appeals remanded the case to the district court to consider those factors, but it deemed it appropriate to make several observations to assist the district court. Stating that "the propriety of the delay may turn to a great extent upon the nature of the item that has been seized," the court of appeals noted the "special hardships" imposed on persons deprived of their automobiles, which are "particularly grave when the seizure, as here, leaves a traveler without transportation at a remote border point" (App., infra, 10a). Although the reasons for the delay were not previously at issue in the district court, the court of appeals also stated that the record indicated "no obvious reason" for the one-month delay and that it "appears that, at the time of the seizure, Customs may have had all of the facts at hand necessary for an expeditious determination of the petition" (id. at 11a). With respect to the third Barker factor, the court noted that respondent had promptly filed a petition for remission, "which seems a sufficient assertion of his rights" (ibid.). Finally, the court noted that the prejudice to the claimant from the delay could include "expenses resulting from a seizure of his vehicle, sudden disruption of travel plans (and) inconvenience" (id. at 12a). REASONS FOR GRANTING THE PETITION This case presents questions of both practical and theoretical importance concerning the Due Process Clause of the Fifth Amendment. The decision below finds a due process right in a purely discretionary remedy that, as a matter of administrative grace, may relieve an individual who violates the Customs laws from the civil penalty imposed by law for his conduct. Moreover, the due process restraints imposed by the decision below are substantial ones. In a real sense, the court of appeals here has turned normal due process concepts on their head by apparently requiring disposition of remission petitions with such speed that the agency's ability to make fair, accurate, and reasoned decisions will be substantially impaired. In addition, the holding below flies in the face of this Court's recent decision in $8,850 by finding that a 36-day delay in ruling on a petition for remission will ordinarily violate due process, even though $8,850 held that an 18-month delay in holding judicial forfeiture proceedings (conceded by the court of appeals to call for stronger due process protection than this case) did not violate due process. Because the decision of the Ninth Circuit is squarely at odds with numerous decisions of this Court and because it creates significant administrative problems for Customs and potentially injures the interests of all persons whose property is seized for forfeiture in the Ninth Circuit, review by this Court is in order. 1. It is well established that the procedural protections of the Due Process Clause do not extend to all situations in which governmental action or inaction may be adverse to the interests of a particular person or group: Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979), citing Meachum v. Fano, 427 U.S. 215, 224-225 (1976). By its terms, the Clause applies only in those circumstances in which governmental action threatens to deprive a person of "liberty" or "property." Board of Regents v. Roth, 408 U.S. 564, 571 (1972). The decisions of this Court make it clear that the government creates a property or liberty interest cognizable under the Fifth Amendment only when it binds itself to confer a benefit or withhold a sanction on the determination of a particular set of facts. See, e.g., Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 462-467 (1981); Greenholtz, 442 U.S. at 10; Meachum v. Fano, 427 U.S. at 226; Montanye v. Haymes, 427 U.S. 236, 242 (1976). Applying this analysis in Dumschat, 452 U.S. at 465, this Court held that a prisoner serving a life sentence had no due process liberty interest at stake in the decision whether to commute his sentence, because "(t)he (commutation) petition * * * is nothing more than an appeal for clemency. * * * In terms of the Due Process Clause, a * * * felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope." (footnote omitted). See also Olim v. Wakinekona, 461 U.S. 238 (1983); Jago v. Van Curren, 454 U.S. 14, 20-21 (1981). It is plain that the relief of remission or mitigation is similarly a matter of executive grace that is not designed to create any "property" interest protected by the Due Process Clause. Over 150 years ago, in United States v. Morris, 23 U.S. (10 Wheat.) 246, 285 (1825), this Court described the Customs remission process, enacted by the First Congress, Act of May 26, 1790, ch. 12, 1 Stat. 122 et seq., as a "subject submitted to (the Secretary of the Treasury's) sound discretion." Indeed, the Court's description of the remission process is very much like that of a pardon: "It presupposes, that the offence has been committed, * * * and affords relief for inadvertencies, and unintentional error." 23 U.S. (10 Wheat.) at 291. The understanding that an administrative application for remission or mitigation invokes a wholly discretionary power and creates no entitlement in the claimant is clearly expressed in the current statute, 19 U.S.C. 1618, enacted in its present form as part of the Tariff Act of 1930. Section 1618 provides that "the Secretary of the Treasury, * * * if he finds that such * * * forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such * * * forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just * * *" (emphasis added). This statute, like the sentence commutation statute considered in Dumschat, grants the claimant no more than the ability to petition for clemency. The decision whether to grant remission or mitigation and the proper terms of such relief are left to the discretion of the Secretary or his designee. /9/ In a manner similar to that of a state parole board, he is empowered, but not required, to remit or mitigate forfeitures upon such terms as he deems "reasonable and just" when he finds that mitigating circumstances warrant such relief. See Greenholtz, 442 U.S. at 7. There is thus no particular set of facts that, if shown, mandate a decision favorable to the claimant. In the absence of specific factual criteria defining entitlement to relief, remission or mitigation must be considered an act of grace to which due process protections -- including any right of prompt disposition of claims respecting property interests -- do not attach. /10/ 2. Assuming, contrary to our previous submission, that the Due Process Clause attaches to determinations concerning petitions for remission or mitigation and that it imposes some time limits on the making of such determinations, the limitations imposed by the court of appeals' decision are far more stringent than anything that conceivably could be required by the Constitution. The result of the court's holding is that, unless a petition is decided almost immediately, every case will give rise to a triable issue of a due process violation; moreover, the court strongly suggests that, in the absence of unusual extenuating circumstances, a 36-day consideration period violates due process. This is, we respectfully submit, a wholly unreasonable result produced by an analysis seriously flawed in several respects. a. Initially, a conclusion that some process is due in connection with the consideration of a remission petition merely poses, but does not answer, the question whether the required process encompasses a right to a speedy disposition of the petition. Due process is a "flexible" concept that "calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Basically, due process guarantees that a proceeding be fair; "(t)he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The Customs Service has established detailed procedures for the equitable processing of remission petitions (see note 18, infra), and respondent has not complained that he was given an inadequate opportunity to present his case here. There is in fact no need to create a constitutional right to a speedy disposition in order to insure fundamental fairness in the remission context. True, the Court did recognize a due process right to a speedy judicial forfeiture proceeding in $8,850 because the claimant is deprived of the use of the property -- to which he may have a valid claim -- until the forfeitability of the property is resolved. See 461 U.S. at 563-564. The administrative remission context, however, is fundamentally different from $8,850 in this regard. The underlying premise of a remission petition is that the property is forfeitable; the claimant merely seeks to have the penalty eliminated or reduced because of mitigating factors. /11/ When property is forfeitable, it becomes the government's property as of the time it is seized. See United States v. Stowell, 133 U.S. 1, 16-17 (1890); Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir. 1978). Plainly, the claimant should have no constitutional right to speedy disposition of his petition when he is not being deprived of the use of his property during the pendency of the petition (because the property in question is recognized -- for purposes of the administrative petition proceeding -- as belonging to the government). b. In any event, even if there were a constitutional right to speedy disposition of a remission petition and the court of appeals were correct that the claim should be analyzed under the Barker v. Wingo factors, /12/ the court's application of those factors is not faithful to the analysis described in $8,850 and Barker. First, it is clear that the time taken here to act on the petition was far too brief to give rise to any due process claim. The length of the delay under Barker is a factor that "triggers" consideration of the other factors. See 407 U.S. at 530. It is clear that, even in the speedy trial context, where the constitutional protection ought to be significantly stronger than here (see $8,850, 461 U.S. at 565 n.14), 36 days is considerably too short a period to be "presumptively prejudicial" (Barker, 407 U.S. at 530) and therefore trigger consideration of the other Barker factors for a possible speedy trial violation. See, e.g., United States v. Struyf, 701 F.2d 875, 879 (11th Cir. 1983) (seven month delay does not trigger consideration of other Barker factors); United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918 (1982) (five months); United States v. Elorduy, 612 F.2d 986, 988 (5th Cir. 1980) (six months). See also United States v. MacDonald, 456 U.S. 1, 11 (1982). Second, the focus of the court of appeals' Barker analysis is completely misdirected. The court looked to the prejudice resulting from the seizure itself, such as the potential consequences of depriving an individual of a means of transportation for an extended period of time (see App., infra, 12a); but the alleged due process violation arises not from the seizure, but from a delay in processing a petition for remission. The class of cases under consideration involves vehicles as to which there is probable cause to believe that they have themselves been smuggled into the country (as here) or have been employed for the transportation of illegal drugs or other contraband. Generally, the claimant has no basis for objecting to the seizure itself. /13/ The purpose of the remission process is to consider whether there are extenuating circumstances that might justify amelioration of the penalty of forfeiture. As we indicate in the discussion in point 3, this determination will often take considerable time. A person who attempts to smuggle a vehicle or contraband across the border should be held to have assumed the risk of any inconvenience that might result from its seizure. Accordingly, the hardship involved in loss of the vehicle for a period of several seeks, or even months, while a remission petition is under consideration is simply not the kind of prejudice that activates a due process requirement of speedy disposition. /14/ Moreover, procedures exist to permit the claimant to obtain the return of his vehicle; he can post a bond in the amount of the value of the vehicle. That is what respondent did in this case, two weeks after the seizure, at which time the Jaguar was released to him. Indeed, there is nothing in the record to show why he could not have posted a bond and obtained possession of the car within a day or two had he wished to do so. /15/ Moreover, it can hardly be said in this case that respondent was left stranded at the border (see App., infra, 10a). Rather, the Customs agent arranged for transportation for respondent to the nearest town, from which respondent arranged to fly home in his private plane that was waiting in Seattle (Tr. 51-52). In short, the inconvenience suffered by respondent when his effort to escape paying duty on a $24,500 foreign automobile was thwarted was fairly ascribable to his own misdeed and not to any unfairness in the processing of his petition for administrative clemency. Examined in the proper light, i.e., focusing on the delay in processing the petition, the Barker v. Wingo factors cannot possibly be found to support a due process claim in this case. As noted earlier, the length of the delay was entirely too short to suggest any constitutional deficiency. The short delay was almost certainly ascribable to the need to investigate the contentions raised by and assess the merit of respondent's petition for remission. With respect to the third Barker factor, while the filing of the petition for remission at the time of seizure may have indicated respondent's intent to avoid, if possible, forfeiture of the total value of the car, it can hardly be construed as an assertion of his "right" to consideration of his petition in less than 36 days. /16/ Indeed, respondent's filing of a detailed supplemental petition, less than two weeks before his petition was finally acted upon, plainly belies such an intent. Finally, there is no suggestion how the delay in acting on the petition (as distinct from the seizure itself (see App., infra, 12a)) could possibly have prejudiced the claimant in the manner contemplated in $8,850 -- in his defense against the forfeiture action (see 461 U.S. at 569-570) -- or, indeed, in any other way. In short, the court of appeals' remand order, with its suggestion that the district court could find a due process violation because of the 36-day consideration period in this case, is gravely flawed. /17/ 3. The decision of the court of appeals also ordains a wholly irrational system for processing remission petitions that will have deleterious practical effects well beyond the small sum of money at stake in this case. By treating routine delay in processing a remission petition as a due process violation barring imposition of any penalty for smuggling, the decision, if allowed to stand, will inject undue haste into the administrative process that will harm not only the agency but also the interests of claimants generally. In order to give adequate and reasoned consideration to a claimant's petition, Customs must often investigate the basis for the factual allegations in the petition and make other inquiries, which may concern events and circumstances beyond those at the site of the seizure or submission of the petition. As detailed in an affidavit executed by the Director of the Entry Procedures and Penalties Division, Office of Regulations and Rulings, United States Customs Service, which was filed with the government's rehearing petition (App., infra, 41a-50a), most decisions on petitions for remission normally take more than 30 days and, in a large number of cases, at least three to six months is needed for Customs to collect the information necessary to make an informed decision even if it gives high priority to an application over other pending matters (App., infra, 45a, 47a, 49a). /18/ Indeed, the factors that necessitate more extended consideration of petitions than the court of appeals seems willing to accept are well illustrated by this case. See App., infra, 47a-48a. A responsible decision on respondent's petition required at a minimum an inquiry (that could potentially extend all the way to Switzerland) into respondent's ownership interest in the seized vehicle, because it was registered in the name of Grace Blote, its intended recipient (C.A. App. 11). In addition, the District Director was required to consider respondent's allegations that the Customs inspector at the Blaine, Washington, Customs station had never asked him whether he had anything to declare and that respondent lacked any intent to avoid paying his customs duty (C.A. App. 13). To evaluate these claims required at least some inquiry into respondent's background, which could not reasonably be based exclusively on respondent's self-serving statements about his reputation for veracity. If anything, Customs should be commended, not condemned, for reaching a decision on this petition in five weeks. The court of appeals' decision that, except in unusual circumstances, 36 days is too long to consider a petition will require Customs to act in haste that will unavoidably result in a failure fully to explore and consider pertinent facts. Thus, the decision below actually undermines one of the primary purposes of due process, viz., to reduce the risk of governmental error. See Mathews v. Eldridge, 424 U.S. at 335. The unrealistic time constraints will increase significantly the likelihood that the decisions on petitions will be arbitrary. Indeed, the most logical response to the decision below would be for Customs simply to deny petitions that it has not definitely decided to grant in the brief time available. In many cases, the matter would then be referred under 19 U.S.C. 1603 to the United States Attorney for the institution of judicial forfeiture proceedings. /19/ Accordingly, the decision below undermines the congressional purpose in establishing the remission and mitigation remedy, which is designed to favor an administrative, rather than judicial, resolution of claims resulting from Customs seizures. See, e.g., H.R. Rep. 1429, 75th Cong., 1st Sess. 5 (1937); S. Rep. 1465, 75th Cong., 3d Sess. 11 (1938). Moreover, this result is contrary to the interests of most claimants. Usually, and this was certainly true in respondent's case, a claimant's only realistic hope of reacquiring any of his property is the remission process, and thus denial of the petition because of time constraints is rarely in his best interest. See $8,850, 461 U.S. at 566. Because the decision below would have a "disruptive effect" on Customs' forfeiture program (App., infra, 50a) and seriously disadvantage many persons affected by the program, it is important that the erroneous ruling of the court of appeals be overturned by this Court. /20/ CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal. Respectfull submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General JOHN F. DEPUE Attorney JANUARY 1985 /1/ That opinion as reported does not contain the modifications that the court of appeals made to its decision in denying the government's petition for rehearing. See App., infra, 33a-34a. /2/ Respondent testified that he inadvertently had passed the Canadian Customs building because of poor visibility and inadequate directions (Tr. 31-32; App., infra, 17a). /3/ During the hearing, respondent conceded that he knew he had to declare his automobile at the United States Customs station, but he claimed that he planned to do that only after he stopped at the Canadian Customs station. He testified that he understood the Customs inspector's question to relate exclusively to purchases or acquisitions made in Canada and that the inquiry thus did not refer to his automobile, since it had been purchased in Switzerland. Tr. 38-40. /4/ "C.A. App." refers to the excerpt of record filed with the court of appeals. /5/ Customs officials have discretion to release a seized vehicle to a person claiming a "substantial interest therein" upon payment of the value of the vehicle. 19 U.S.C. 1614. The payment serves as a bond to cover any penalty assessed for failure to make the declaration required by law. See 19 C.F.R. 162.43, 162.44(b). /6/ By statute, the Secretary of the Treasury is authorized to act on petitions for remission or mitigation. 19 U.S.C. 1618. This authority has been delegated to District Directors of the Customs Service in cases where the total value of the merchandise forfeited does not exceed $25,000. 19 C.F.R. 171.21. The estimated value of respondent's car, $25,500, thus fell within the District Director's authority to act on petitions for remission or mitigation. /7/ The government filed a contingent counterclaim seeking recovery of the full $24,500 in accordance with 19 U.S.C. 1497, in the event the district court found the administrative mitigation proceedings invalid. The counterclaim was based upon the theory that, if the administrative settlement were found to be invalid, the government was free to seek forfeiture of the full value of the vehicle as a penalty for failing to declare it, just as if no administrative relief had ever been granted (C.A. App. 22-23,32). The district court, having entered a judgment in favor of the government, accordingly denied the contingent counterclaim (App., infra, 39a). /8/ The court of appeals relied heavily upon the decision of the Second Circuit in Lee V. Thornton, 538 F.2d 27 (1976), in concluding that due process requires prompt disposition by Customs of administrative petitions for remission or mitigation of vehicle forfeitures. In Lee, the court, relying upon the balancing analysis in Mathews V. Eldridge, 424 U.S. 319 (1976), held that when vehicles are seized for forfeiture, action on petitions for remission or mitigation should be required within 24 hours, unless a hearing on probable cause is requested by the claimant, in which event the hearing should be conducted within 72 hours of the seizure. 538 F.2d at 33. /9/ It is well settled that the decision whether to grant petitions for remission is a wholly discretionary decision of the Executive Branch; courts lack jurisdiction to review the Secretary's action on a petition for remission or mitigation. See United States V. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir. 1977); United States V. One 1972 Mercedes-Benz 250, 545 F.2d 1233, 1236 (9th Cir. 1976); United States V. One 1970 Buick Riviera, 463 F.2d 1168 (5th Cir.), cert. denied, 409 U.S. 980 (1972); United States V. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964). /10/ This conclusion does not, of course, mean that an individual has no right to due process in connection with the disposition of his seized property. He is entitled to a hearing on the forfeitability of the property, and, under $8,850, he has due process protection against unreasonable delay in the forfeiture proceeding. If delay in processing a petition for remission or mitigation becomes inconvenient for the claimant, he may, of course, withdraw his petition and seek prompt judicial forfeiture proceedings. In any event, he retains the right to raise a due process objection to the delay in the forfeiture proceeding itself. /11/ If the claimant wishes to contest forfeitability, the judicial forum is the place to do so; there, the right to a reasonably prompt determination is protected. /12/ It is by no means clear that a due process claim for delay in acting on a remission petition ought to be resolved by reference to the Barker factors, at least in the absence of a threshold showing of prejudice caused by the delay. In the somewhat analogous area of preindictment delay, this Court has stated that "proof of prejudice is generally a necessary but not sufficient element of a due process claim." United States V. Lovasco, 431 U.S. 783, 790 (1977). This Court did suggest in $8,850 that a due process claim based on delay might be possible in some circumstances in the absence of demonstrable prejudice, but, as the court of appeals itself recognized (App., infra, 6a-7a), the claim here is significantly different from that in $8,850. In $8,850, the claim concerned the delay in holding a judicial forfeiture proceeding, which is the final step in the legal path triggered by the seizure of forfeitable property. It therefore was logical for the Court in $8,850 to look for guidance to cases arising under the Speedy Trial Clause, an analogous situation involving the delay in holding the final step (the trial) in the chain of judicial events triggered by an indictment. But the claim here is not analogous to a speedy trial claim; a petition for remission or mitigation is an optional, and collateral, administrative remedy that plainly is not automatically set in motion by the seizure of forfeitable property. Hence, despite $8,850, some showing of prejudice caused by the delay ought to be a prerequisite to a due process claim of delay in acting on a petition for mitigation, just as Lovasco holds that it is for preindictment delay. /13/ If the lawfulness of the seizure is being disputed, the forum provided for that inquiry is a motion for return of property under Fed. R. Crim. P. 41(e). /14/ The error of the court of appeals' decision may perhaps most clearly be demonstrated by considering what the analogous rule would be as applied to seizure of the person -- an event surely as inconvenient to the individual as the seizure of his automobile. Under such a rule, an individual who had been arrested on probable cause to believe he had committed a crime and who asked the prosecutor to consider a plea bargain or dismissal of all charges could not be prosecuted at all if the prosecutor failed to give a final response to such a proposal within the short time frame suggested by the decision below. No one would seriously propose such a rule in the case of arrests, and we are at a loss to understand why it should apply to seizures of property. /15/ Respondent stated to the Customs officer at the time of the seizure that it would be "no problem" for him to obtain the funds to secure release of the car (Tr. 157, 159). Moreover, respondent testified that he was familiar with Customs "informal entry" procedures that would have required him to post a bond in the amount of the value of the car in order to be allowed to go on his way (Tr. 67). /16/ Since the due process claim involved here can arise only if a petition for remission or mitigation is filed, the court of appeals' analysis completely eliminates this Barker factor from the equation by weighing it in favor of the claimant in every case. /17/ Indeed, it might fairly be said that the court of appeals has distilled Barker into a single factor test for delays in acting on remission petitions. Since, under the court of appeals' analysis, even a very short delay triggers the inquiry, the mere filing of the petition satisfies the demand requirement, and inconvenience caused by the seizure is treated as prejudice caused by the delay, it would appear that three of the Barker factors will be weighed in favor of the claimant in almost every case of this kind. The due process question will turn entirely on the reasons for the delay. If Customs can show that, under the circumstances, it could not possibly have acted on the petition more quickly, the due process claim will be denied. Otherwise, the claim will be granted and the forfeiture invalidated. /18/ The Director's affidavit explains that there are numerous factors that are considered in deciding the extent to which relief should be granted: e.g., whether the violation occurs in connection with a commercial shipment or an importation for personal use; whether the petitioner has a previous record of Customs or criminal violations; whether the violation was negligent or willful; and the validity of a claim that forfeiture would create an extraordinary financial hardship. App., infra, 46a-47a. Both time and manpower are required to conduct the necessary investigations. Moreover, the agency has established formal procedures for processing petitions for remission of forfeiture, which help assure fair and equitable treatment of all petitions. These procedures, which are set forth in the United States Customs Service's fInes, Penalties and Forfeitures Handbook 116-119 (rev. 1979), contemplate a multi-step investigation and review process: (1) upon receipt of a petition, an "FP&F" officer examines the document to determine whether further investigation is needed; (2) if he determines that further investigation is required, he prepares a request for investigation and forwards it to the District Director; if additional investigation is not deemed necessary, he prepares a memorandum for the District Director recommending a final determination based upon guidelines and applicable precedent; (3) in cases where further investigation is deemed necessary, the District Director may refer the case to the Customs Office of Investigation, which will further investigate the allegations contained in the petition or obtain the information specified by the District Director; (4) following the investigation, the Customs investigator files a report with the District Director; (5) upon completion of the investigatory and review processes, the District Director decides the action to be taken on the petition and advises the petitioner of the decision in a written opinion that includes a statement of the findings of fact and the reasoning on which the decision relies. For seizures valued at more than $25,000, there is an additional level of review; the final decision on the petition is made by Customs' Washington, D.C., headquarters or, if the seized items are valued at more than $100,000, by the Department of Treasury (App., infra, 48a-49a). /19/ In 90% of all cases of seizure of non-contraband property, the claimant files a petition for remission or mitigation. See $8,850, 461 U.S. at 558. The Director's affidavit in this case states that in 95% of car seizure cases in which such petitions are filed, the case is settled administratively without the necessity of instituting forfeiture proceedings: i.e., the vehicle is returned upon payment of a mitigated amount (App., infra, 49a). If the decision below induces Customs to act on all petitions within 30 days, even when that period is insufficient to make an informed decision, many of these cases (perhaps as many as 70% (id. at 49a, 50a)) that would otherwise be settled administratively will be referred for forfeiture proceedings. /20/ For these reasons, we urge the Court to grant certiorari even though the case has been remanded to the district court for further proceedings. Even if the United States prevails on remand, the decision of the court of appeals will remain the governing law in the Ninth Circuit, and the serious problems it creates will plague the administration of the forfeiture program until action is taken by this Court. APPENDIX