OCTOBER TERM, 2001
Syllabus
DUSENBERY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 00-6567. Argued October 29, 200l-Decided January 8, 2002
While petitioner was in prison on federal drug charges, the
Federal Bureau of Investigation (FBI) began an administrative
process to forfeit cash that officers seized when they executed a
search warrant for the residence where petitioner was arrested. The
statute in effect at the time required the agency, inter alia, to
send written notice of the seizure and applicable forfeiture
procedures to each party who appeared to have an interest in the
property. 19 U. S. C. § 1607(a). The FBI sent such notice by
certified mail addressed to petitioner care of the federal
correctional institution (FCI) where he was incarcerated; to the
address of the residence where he was arrested; and to an address
in the town where his mother lived. It received no response in the
time allotted and turned over the cash to the United States
Marshals Service. Subsequently, petitioner moved in the District
Court under Federal Rule of Criminal Procedure 41(e) for return of
all the property and funds seized in his criminal case. The court
denied the motion. The Sixth Circuit vacated and remanded, holding
that the motion should have been construed as a civil complaint
seeking equitable relief for a due process challenge to the
adequacy of the notice. On remand, the District Court presided over
a telephone deposition of an FCI officer who stated that he signed
the certified mail receipt for the FBI's notice to petitioner and
testified about the FCI's procedures for accepting, logging, and
delivering certified mail addressed to inmates. The court granted
the Government summary judgment, ruling that its sending of notice
by certified mail to petitioner's place of incarceration satisfied
his due process rights. The Sixth Circuit affirmed.
Held: The FBI's notice of the cash forfeiture satisfied due
process. The Fifth Amendment's Due Process Clause entitles
individuals whose property interests are at stake to "notice and an
opportunity to be heard." United States v. James Daniel Good Real
Property,
510 U. S.
43, 48. The straightforward reasonableness under the
circumstances test of Mullane v. Central Hanover Bank & Trust
Co.,
339 U. S.
306, 313, not the balancing test approach of Mathews v.
Eldridge,
424 U. S.
319, 335, supplies the appropriate analytical framework for the
due process analysis. This Court has never viewed Mathews as
announcing an allembracing test for deciding due process claims,
but has regularly turned
162
Syllabus
to Mullane when confronted with questions regarding the adequacy
of the method used to give notice. In Mullane, notice by
publication was constitutionally defective as to known persons
whose whereabouts were also known, because it was not "reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections." 339 U. S., at 314, 319.
The FBI's notice, sent by certified mail to a prison with
procedures for delivering mail to the inmate, was so calculated.
Contrary to petitioner's argument, Mennonite Bd. of Missions v.
Adams,
462 U. S.
791, 796-797, says that a State must attempt to provide actual
notice, not that it must provide actual notice. And none of this
Court's cases cited by either party have required actual notice in
proceedings such as this. Instead, the Government has been allowed
to defend the "reasonableness and hence the constitutional validity
of any chosen method ... on the ground that it is in itself
reasonably certain to inform those affected." Mullane, supra, at
315. The Due Process Clause does not require heroic efforts by the
Government to assure the notice's delivery, nor does it require the
Government to substitute petitioner's proposed procedures that
would have required verification of receipt for those in place at
the FCI while he was there. Even if the current procedures improve
delivery to some degree, this Court has never held that
improvements in the reliability of new procedures necessarily
demonstrate the infirmity of those that were replaced. Pp.
167-173.
223 F.3d
422, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J.,
filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER,
JJ., joined, post, p. 173.
Allison M. Zieve, by appointment of the Court, 532 U. S. 940,
argued the cause for petitioner. With her on the briefs was Alan B.
Morrison.
Jeffrey P. Minear argued the cause for the United States.
With him on the brief were Solicitor General Olson, Assistant
Attorney General Chertoff, Deputy Solicitor General Dreeben, and
William C. Brown.*
* Julia M. Carpenter filed a brief for the DKT Liberty
Project as amicus curiae urging reversal.
163
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case concerns the adequacy of the means employed by the
Federal Bureau of Investigation (FBI) to provide notice to a
federal prisoner of his right to contest the administrative
forfeiture of property seized during the execution of a search
warrant for the residence where he was arrested.
In April 1986, officers of the FBI arrested petitioner Larry
Dean Dusenbery at a house trailer in Atwater, Ohio. Later that day,
they obtained and executed a search warrant, seizing drugs, drug
paraphernalia, several firearms, a ballistic knife, an automobile
registered in the name of petitioner's stepmother, and various
other items of personal property. Among these was $21,939 in cash,
$394 of which had been found on petitioner's person, $7,500 in the
inside pocket of a coat in the dining area and $14,045 in a
briefcase found on the floor in the living room.
Two months later, petitioner pleaded guilty in the United States
District Court for the Northern District of Ohio to a charge of
possession with intent to distribute 813 grams of cocaine in
violation of 21 U. S. C. § 841(a)(1) (1988 ed.). He was sentenced
to 12 years of imprisonment followed by 6 years of special parole.
Two years later, the United States, no longer expecting the
firearms and knife to be used as evidence in a future prosecution,
and unable to determine their rightful owner, sought and obtained
an order from the District Court authorizing the FBI to destroy
them. The FBI also began the process of administratively forfeiting
the cash and the automobile.
At this time, designated agents of the FBI were allowed to
dispose of property seized pursuant to the Controlled Substances
Act, 84 Stat. 1242, 21 U. S. C. § 801 et seq. (1988 ed.), without
initiating judicial proceedings if the property's value did not
exceed $100,000, and if no person claimed an interest
164
in the property within 20 days after the Government published
notice of its intention to forfeit and sell or otherwise dispose of
it. § 881(a)(6) (subjecting to forfeiture all proceeds traceable to
an unlawful exchange for a controlled substance and all moneys,
negotiable instruments, and securities traceable to such an
exchange); § 881(d) (providing that laws relating to summary and
judicial forfeiture for violation of the customs laws apply to
controlled substance forfeitures); 19 U. S. C. §§ 1607-1609 (1988
ed.) (setting forth customs law requirements for summary
forfeitures).
To effect such a forfeiture, the statute required the agency to
send written notice of the seizure together with information on the
applicable forfeiture procedures to each party who appeared to have
an interest in the property. § 1607(a). It also required the
publication for at least three successive weeks of a similar notice
in a newspaper of general circulation in the judicial district in
which the forfeiture proceeding was brought. Ibid.; 21 CFR §
1316.75 (1988). The FBI sent letters of its intention to forfeit
the cash by certified mail addressed to petitioner care of the
Federal Correctional Institution (FCI) in Milan, Michigan, where he
was then incarcerated; to the address of the residence where
petitioner was arrested; and to an address in Randolph, Ohio, the
town where petitioner's mother lived. App.21-23. It placed the
requisite legal notice in three consecutive Sunday editions of the
Cleveland Plain Dealer. Id., at 24-30. Similar practices were
followed with respect to the proposed forfeiture of the car. Brief
for Petitioner 3. The FBI received no response to these notices
within the time allotted, and so declared the items
administratively forfeited. Ibid.; App. 15. An FBI agent turned
over the cash to the United States Marshals Service on December 13,
1988. Id., at 16-17.
Nearly five years later, petitioner moved in the District Court
pursuant to Rule 41(e) of the Federal Rules of Crimi-
165
nal Procedure 1 seeking return of all the property and funds
seized in his criminal case. The United States responded that all
of the items of petitioner's property that were not used in his
drug business had been returned to him and that other items seized
had long since been forfeited to the Government. The District Court
denied the motion, reasoning that any challenge to the forfeiture
proceedings should have been brought in a civil action, not as a
motion ancillary to petitioner's now-closed criminal case. Case No.
5:95-CV-1872 (ND Ohio, Oct. 5, 1995).
The Court of Appeals for the Sixth Circuit vacated the District
Court's judgment and remanded for further proceedings. Judgt. order
reported at
97 F.3d
1451 (1996), App. 31. The Court of Appeals agreed that
petitioner could not pursue his claim through a Rule 41(e) motion
since the criminal proceedings against him had been completed. It
held that the District Court abused its discretion, however, by not
construing the motion as a civil complaint seeking equitable relief
for a due process challenge to adequacy of the notice of the
administrative forfeiture.
Following remand, the District Court entered an order allowing
discovery and subsequently presided over a telephone deposition of
James Lawson, an Inmate Systems Officer who began to work in the
mailroom at FCI Milan early in 1988 and who had submitted an
affidavit in the case. Lawson testified that he signed the
certified mail receipt for the FBI's notice to petitioner regarding
the cash. App.4950. He also testified about the procedures within
FCI Milan for accepting, logging, and delivering certified mail
addressed to inmates. Id., at 50. Lawson explained that the
1 Rule 41(e) provides that "[a] person aggrieved by an unlawful
search and seizure or by the deprivation of property may move the
district court for the district in which the property was seized
for the return of the property on the ground that such person is
entitled to lawful possession of the property."
166
procedure would have been for him to log the mail in, for
petitioner's "Unit Team" to sign for it, and for it then to be
given to petitioner. Id., at 51. But he said that a paper trail no
longer existed because the Bureau of Prisons (BOP) had a policy of
holding prison logbooks for only one year after they were closed.2
Id., at 51-52.
Both parties moved for summary judgment. The District Court
ruled that the Government's sending of notice by certified mail to
petitioner's place of incarceration satisfied his due process
rights as to the cash. Case No. 5:95-CV-1872 (ND Ohio, Jan. 19,
1999). The Court of Appeals affirmed.
223 F.3d
422 (CA6 2000). Citing Mullane v. Central Hanover Bank &
Trust Co.,
339 U. S.
306, 314 (1950), it held that the Government's notice of the
cash forfeiture comported with due process even in the absence of
proof that the mail actually reached petitioner. 223 F. 3d, at
424.
Because Courts of Appeals have reached differing conclusions
about what the Due Process Clause requires of the United States
when it seeks to provide notice to a federal inmate of its
intention to forfeit property in which the inmate appears to have
an interest,3 we granted certiorari to
2 In a letter received before argument, the Solicitor General
advised us that the BOP now requires the retention of certified
mail logbooks for 11 years in accordance with its implementation of
Government record retention policies under the Federal Records Act
of 1950, 44 U. S. C. § 2901 et seq. (1994 ed.).
3 See, e. g., Whiting v. United States,
231
F.3d 70, 76 (CA1 2000) (due process satisfied by Government's
sending certified letter to inmate at his prison facility absent
proof that mail delivery was unreliable); Yeung Mung Weng v. United
States,
137 F.3d
709, 715 (CA2 1998) (mailed notice to custodial institution
inadequate unless in fact delivered to the intended recipient);
United States v. One Toshiba Color Television,
213 F.3d
147, 155
(CA3 2000) (en banc) (Government bears burden
of demonstrating the existence of procedures that are reasonably
calculated to ensure that actual notice will be given); United
States v. Minor,
228 F.3d
352, 358 (CA4 2000) (endorsing One Toshiba Color Television,
supra); United States v. Woodall,
12 F.3d
791, 794-795 (CA8 1993) (requiring actual notice to defendant
or his counsel of agency's intent to forfeit property); United
States
167
consider the adequacy of the FBI's notice to petitioner of its
intended forfeiture of the cash. 531 U. S. 1189 (2001). We now
affirm the judgment below.
The Due Process Clause of the Fifth Amendment prohibits the
United States, as the Due Process Clause of the Fourteenth
Amendment prohibits the States, from depriving any person of
property without "due process of law." From these "cryptic and
abstract words," Mullane, supra, at 313, we have determined that
individuals whose property interests are at stake are entitled to
"notice and an opportunity to be heard." United States v. James
Daniel Good Real Property,
510 U. S. 43, 48
(1993).
Petitioner urges that, in analyzing his due process claim, we
follow the approach articulated in Mathews v. Eldridge,
424 U. S. 319 (1976).
Brief for Petitioner 12; Reply Brief for Petitioner 7. There we
spoke of a balancing of three factors: (1) the private interest
that will be affected by the official action, (2) a cost-benefit
analysis of the risks of an erroneous deprivation versus the
probable value of additional safeguards, and (3) the Government's
interest, including the function involved and any fiscal and
administrative burdens associated with using different procedural
safeguards. 424 U. S., at 335. The United States, on the other
hand, urges us to apply the method set forth in Mullane, supra,
which espouses a more straightforward test of reasonableness under
the circumstances. Brief for United States 27.
We think Mullane supplies the appropriate analytical framework.
The Mathews balancing test was first conceived in the context of a
due process challenge to the adequacy of administrative procedures
used to terminate Social Security disability benefits. Although we
have since invoked Mathews to evaluate due process claims in
other
v. Real Property,
135 F.3d
1312, 1315 (CA9 1998) (adequate to send summons by certified
mail to jail with procedures for distributing mail directly to the
inmate); United States v. Clark,
84 F.3d
378, 381 (CAlO 1996) (sufficient to send certified mail to
prisoner at jail where he was located).
168
contexts, see Medina v. California,
505 U. S. 437, 444 (1992)
(citing cases), we have never viewed Mathews as announcing an
all-embracing test for deciding due process claims. Since Mullane
was decided, we have regularly turned to it when confronted with
questions regarding the adequacy of the method used to give notice.
See, e. g., New York City v. New York, N. H. & H. R. Co.,
344 U. S. 293,
296 (1953); Walker v. City of Hutchinson,
352 U. S. 112, 115
(1956); Schroeder v. City of New York,
371 U. S. 208, 210
(1962); Robinson v. Hanrahan,
409 U. S. 38, 39 (1972)
(per curiam); Greene v. Lindsey,
456 U. S. 444, 448
(1982); Mennonite Bd. of Missions v. Adams,
462 U. S. 791, 797
(1983); Tulsa Professional Collection Services, Inc. v. Pope,
485 U. S. 478,
484 (1988). We see no reason to depart from this well-settled
practice.
Mullane itself involved a due process challenge to the
constitutional sufficiency of notice to beneficiaries on judicial
settlement of accounts by the trustee of a common trust fund
established under state law. A trustee of such a common trust fund
sought a judicial decree settling its accounts as against all
parties having an interest in the fund. The only notice of the
application for this decree was by court-ordered publication in a
newspaper for four successive weeks. 339 U. S., at 309-310. We held
that this notice was constitutionally defective as to known persons
whose whereabouts were also known, because it was not "reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections." Id., at 314, 319; see
also id., at 315 ("The means employed must be such as one desirous
of actually informing the absentee might reasonably adopt to
accomplish it").
Was the notice in this case "reasonably calculated under all the
circumstances" to apprise petitioner of the pendency of the cash
forfeiture? The Government here carried its burden of showing the
following procedures had been used to give notice. The FBI sent
certified mail addressed to
169
petitioner at the correctional facility where he was
incarcerated. At that facility, prison mailroom staff traveled to
the city post office every day to obtain all the mail for the
institution, including inmate mail. App. 36. The staff signed for
all certified mail before leaving the post office. Once the mail
was transported back to the facility, certified mail was entered in
a logbook maintained in themailroom.Id .• at 37. A member of the
inmate's Unit Team then signed for the certified mail to
acknowledge its receipt before removing it from the mailroom, and
either a Unit Team member or another staff member distributed the
mail to the inmate during the institution's "mail call." Id., at
37, 51.
Petitioner does not seriously contest the FBI's use of the
postal service to send its certified letter to him, a method our
cases have recognized as adequate for known addressees when we have
found notice by publication insufficient.4 Tr. of Oral Arg. 11
("This case is not really a mailed notice case because the
procedures that are inadequate are the procedures that happened
after the mailing"). Instead, he argues that the notice was
insufficient because due process generally requires "actual notice"
to interested parties prior to forfeiture, which he takes to mean
actual receipt ofnotice.5 Brief for Petitioner 8, 15, 18-19; see
also Tr. of Oral Arg. 23.
4 E.
g., Mullane v. Central Hanover Bank &
Trust Co.,
339 U. S.
306, 319 (1950) (noting that the mails "are recognized as an
efficient and inexpensive means of communication"); Walker v. City
of Hutchinson,
352 U.
S. 112, 116 (1956); Schroeder v. City of New York,
371 U. S. 208, 214
(1962); Mennonite Bd. of Missions v. Adams,
462 U. S. 791, 798
(1983); Tulsa Professional Collection Services, Inc. v. Pope,
485 U. S. 478,
490 (1988).
5 The Government's brief notes that the term "actual notice" is
not free from ambiguity as used by this Court in cases such as
Tulsa, supra, and by other courts. Brief for United States 20, n.
12 (stating that the term has been used both to distinguish notice
by mail from notice by publication and to refer to the actual
receipt of the notice by the intended recipient); see also Black's
Law Dictionary 1087 (7th ed. 1999) (defining "actual notice" as
"[n]otice given directly to, or received personally by, a party").
We think the best way to avoid this confusion is to equate, as
petitioner does, "actual notice" with "receipt of notice."
170
For this proposition he cites Mennonite Bd. of Missions, 462 U.
S., at 796-797. But the only sentence in Mennonite arguably
supporting petitioner's view appears in a footnote. That sentence
reads: "Our cases have required the State to make efforts to
provide actual notice to all interested parties comparable to the
efforts that were previously required only in in personam actions."
Id., at 797, n. 3. It does not say that the State must provide
actual notice, but that it must attempt to provide actual notice.
Since Mennonite concluded that mailed notice of a pending tax sale
to a mortgagee of record was constitutionally sufficient,
id., at 799, the sentence is at best inconclusive dicta for
the view petitioner espouses.
We note that none of our cases cited by either party has
required actual notice in proceedings such as this. Instead, we
have allowed the Government to defend the "reasonableness and hence
the constitutional validity of any chosen method ... on the ground
that it is in itself reasonably certain to inform those affected."
Mullane, 339 U. S., at 315.
Petitioner argues that because he was housed in a federal prison
at the time of the forfeiture, the FBI could have made arrangements
with the BOP to assure the delivery of the notice in question to
him. Brief for Petitioner 17. But it is hard to see why such a
principle would not also apply, for example, to members of the
Armed Forces both in this country and overseas. Undoubtedly the
Government could make a special effort in any case (just as it did
in the movie "Saving Private Ryan") to assure that a particular
piece of mail reaches a particular individual who is in one way or
another in the custody of the Government. It could, for example,
have allowed petitioner to make an escorted visit to the post
office himself in order to sign for his letter. But the Due Process
Clause does not require such heroic efforts by the Government; it
requires only that the Government's effort be "reasonably
calculated" to apprise a party of the pendency of the action;
"'[t]he criterion is not the possibility of conceiv-
171
able injury but the just and reasonable character of the
requirements .... '" Mullane, supra, at 315.
Nor does the Due Process Clause require the Government to
substitute the procedures proposed by petitioner for those in place
at FCI Milan in 1988. See Brief for Petitioner 17 (suggesting that
the Government could send the notice to a prison official with a
request that a prison employee watch the prisoner open the notice,
cosign a receipt, and mail the signed paper back to the agency from
which it came). The suggested procedures would work primarily to
bolster the Government's ability to establish that the prisoner
actually received notice of the forfeiture, a problem petitioner
perceives to be the FCI Milan's procedures' primary defect. See Tr.
of Oral Arg. 15 (explaining that the problem is that "[t]he
procedure doesn't require verification of delivery"). But as we
have noted above, our cases have never required actual notice. The
facts of the present case, moreover, illustrate the difficulty with
such a requirement. The letter in question was sent to petitioner
in 1988, but the claim of improper notice was first asserted in
1993. What might be reasonably fresh in the minds of all parties
had the question arisen contemporaneously will surely be stale five
years later. The issue would often turn on disputed testimony as to
whether the letter was in fact delivered to petitioner. The title
to property should not depend on such vagaries.
JUSTICE GINSBURG'S dissent does not contend, as petitioner does,
that due process could be satisfied in this case only with actual
notice. It makes an alternative argument that the FBI's notice was
constitutionally flawed because it was "'substantially less likely
to bring home notice' than a feasible substitute," post, at 174
(quoting Mullane, supra, at 314-315)-namely, the methods used
currently by the BOP, which generally require an inmate to sign a
logbook acknowledging delivery, see post, at 180, 181-182
(describing current BOP procedures and noting the practicability of
BOP Unit Team member's "linger[ing]" a little longer to secure an
in-
172
mate's signature). Just how requiring the end recipient to sign
for a piece of mail substantially improves the reliability of the
delivery procedures leading up to that person's receipt, JUSTICE
GINSBURG'S dissent does not persuasively explain. Nor is there any
probative evidence to this effect in the record.6
Even if one accepts that the BOP's current procedures improve
delivery to some degree, our cases have never held that
improvements in the reliability of new procedures necessarily
demonstrate the infirmity of those that were replaced. Other areas
of the law, moreover, have for strong policy reasons resisted rules
crediting the notion that, "'because the world gets wiser as it
gets older, therefore it was foolish before.'" Advisory Committee's
Notes on Fed. Rule Evid. 407, 28 U. S. C. App., p. 864 (1994 ed.)
(quoting Hart v. Lancashire & Yorkshire R. Co., 21 Law Times
Rep. (n. s.) 261, 263 (1869), and explaining that Rule 407's
prohibition against use of subsequent remedial measures to prove
fault attempts to avoid discouraging persons from taking steps to
further safety). In this case, we believe the same principle
supports our conclusion that the Government ought not be penalized
and told to "try harder," post, at 180, simply because the BOP has
since upgraded its policies.
Here, the use of the mail addressed to petitioner at the
penitentiary was clearly acceptable for much the same reason we
have approved mailed notice in the past. Short of allowing the
prisoner to go to the post office himself, the remaining portion of
the delivery would necessarily depend on a system in effect within
the prison itself relying on prison staff. We think the FBI's use
of the system de-
6 To try to show that there is a "significant risk," Brief for
Petitioner 14, that notice mailed to a prison will not reach an
inmate, petitioner has cited several cases from various Courts of
Appeals involving postforfeiture challenges. As the Government
argues, these cases, like petitioner's own suit here, involve only
claims that notice was not received, not findings of
nonreceipt.
173
scribed in detail above was "reasonably calculated, under all
the circumstances, to apprise [petitioner] of the pendency of the
action." Mullane, 339 U. S., at 314. Due process requires no
more.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE BREYER join, dissenting.
"'The fundamental requisite of due process of law is the
opportunity to be heard.' Grannis v. Ordean,
234 U. S. 385, 394
[(1914)]. This 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."
Mullane v. Central Hanover Bank & Trust Co.,
339 U. S. 306, 314
(1950). Today's decision diminishes the safeguard of notice,
affording an opportunity to be heard, before one is deprived of
property. As adequate to notify prisoners that the Government seeks
forfeiture of their property, the Court condones a procedure too
lax to reliably ensure that a prisoner will receive a legal notice
sent to him. The Court does so despite the Government's total
control of a prison inmate's location, and the evident feasibility
of tightening the notice procedure "as [would] one desirous of
actually informing [the prisoner]." Id., at 315. Because the Court,
without warrant in fact or law, approves a procedure "less likely
to bring home notice" than a feasible alternative, ibid., I
dissent.
I
The Court correctly identifies the foundational case on
reasonable notice as a due process requirement, Mullane v. Central
Hanover Bank & Trust Co., and the core instruction:
"[DJeprivation of ... property by adjudication [must] be preceded
by notice and opportunity for hearing appropriate to the nature of
the case." Id., at 313. Further, the Court recognizes that
petitioner Dusenbery's complaint does not
174
rest on the Government's use of the postal service to dispatch,
from the Federal Bureau of Investigation (FBI) to the Federal
Correctional Institution (FCI) in Milan, Michigan, notice of an
impending forfeiture. Ante, at 169. Were this case about the
adequacy of the transmission of information from the FBI to the
FCI, swift summary judgment for the Government, I agree, would be
in order. But the case we confront is not about notice to the
prison, the warden, or the prison mailroom personnel. It is about
the adequacy of notice to an individual held in the Government's
custody, a prisoner whose location the Government at all times
knows and tightly controls.
What process did the Government provide for getting the FBI's
forfeiture notice from the FCI's mailroom to prisoner Dusenbery's
cell? On that key transmission the record is bare. It contains no
statement by FCI Milan's warden concerning any set of safeguards
routinely employed. The Government presented only the affidavit and
telephone deposition of James Curtis Lawson, an "Inmate Systems
Officer" assigned to FCI Milan's mailroom. App. 36-37, 46-53. On
the mailroom to prisoner transmission, Lawson said simply this:
"The [Housing] Unit Team member or a correctional staff member will
[after signing the mailroom logbook] distribute the mail to the
inmates during the institution's mail call." App. 37. Lawson did
not know whether notice was in fact delivered to Dusenbery. Nor
would he have such knowledge or information regarding any other
prisoner. As Lawson clarified on deposition, he was not acquainted
with particular practices or systems governing mail once it left
the mailroom, because that was not "pertinent to [his] department."
App. 52. According to Lawson, "[t]hat would be case workers'
responsibility,"
ibid.; but no caseworker filled in the
evidentiary gap.
Was the prison to prisoner mode of transmission described by
Officer Lawson "substantially less likely to bring home notice"
than a feasible substitute that would place no "im-
175
practical obstacles" in the Government's way? Mullane, 339 U.
S., at 314-315. The answer, in my judgment, is certainly yes.
Before detailing why that is my view, I will examine what the Court
does not elaborate: In full scope, what does Mullane, the
foundational case, teach about the nexus to the forum and notice to
interested persons necessary to make an adjudication fair and
workable, and thus compatible with due process? 1
II
Mullane was a proceeding in which the trustee of a common trust
fund sought from a New York Surrogate Court an order settling all
questions concerning the management of the common fund during a
statutorily specified accounting period.2 Many of the beneficiaries
resided outside New York. Could a New York court adjudicate such a
case despite the large numbers of nonresidents affected? And if a
New York court could entertain the case, would notice by
publication, for which the New York statute provided, suffice to
inform beneficiaries of the proceeding? The Court recognized that
these were separate questions calling for discrete inquiries.
New York had jurisdiction to adjudicate despite the dispersion
of trust beneficiaries among several States, the Court explained,
because the trust "exist[ed] by the grace of [New York's] laws and
[was] administered under the supervision of its courts." Id., at
313. If New York could not take
1 In briefing this case, the Government questioned whether it is
"permissible for courts to approach the due process issue here as a
matter of what is 'fair' or workable." Brief for United States 31.
Any doubt on that score should be dispelled. Mullane carefully
explained that the due process requirement at stake is not merely
permissive, it demands that both fairness and practicality be taken
into account. See 339 U. S., at 313-320.
2 The decree sought by the Mullane trustee would terminate
"every right which beneficiaries would otherwise have against the
trust company, either as trustee of the common fund or as trustee
of any individual trust, for improper management of the common
trust fund during the period covered by the accounting." Id., at
311.
176
hold of the case, no other State would be better situated to do
so. Without a forum for periodic settlement of the trustee's
accounts, the common fund device would be unworkable. Under the
circumstances, New York's interest "in providing means
[periodically] to close trusts [of the kind involved in Mullane
was] ... so insistent and rooted in custom as to establish beyond
doubt the right of its courts to determine the interests of all
claimants." Ibid.
Having thus settled the question of the nexus between the forum
and the controversy necessary to establish jurisdiction to
adjudicate, the Court turned to the means by which potentially
affected persons must be apprised of the proceeding:
"Quite different from the question of a state's power to
discharge trustees," the Court began, "is that of the [full]
opportunity it must give beneficiaries to contest." Ibid.
"Personal service of written notice," the Court acknowledged,
"is the classic form of notice always adequate in any type of
proceeding." Ibid. But that classic form, the Court next developed,
"has not in all circumstances been regarded as indispensable to the
process due to residents, and it has more often been held
unnecessary as to nonresidents." Id., at 314. For beneficiaries
whose interests or addresses were unknown to the trustee, notice by
publication would do,faute de mieux. Id., at 318. But "[a]s to
known present beneficiaries of known place of residence," Mullane
instructed, notice by publication would not do. Ibid. Personal
service on "the large number of known resident or nonresident
beneficiaries," however, would "seriously interfere with the proper
administration of the fund." Id., at 318-319 (delay as well as
expense rendered such service impractical). For that group, the
Court indicated, "ordinary mail to the record addresses," which
might be sent with periodic income remittances, was the minimal due
process requirement. Id., at 318. The risk that notice would not
reach even all known beneficiaries, the Court reasoned, was
justifiable, for the common trust
177
"presupposes a large number of small interests. The individual
interest does not stand alone but is identical with that of a
class. The rights of each in the integrity of the fund and the
fidelity of the trustee are shared by many other beneficiaries.
Therefore notice reasonably certain to reach most of those
interested in objecting is likely to safeguard the interests of
all, since any objection sustained would inure to the benefit of
all." Id., at 319.
In a series of cases following Mullane, the Court similarly
condemned notice by publication or posting as not reasonably
calculated to inform persons with known interests in a proceeding.
See Tulsa Professional Collection Services, Inc. v. Pope,
485 U. S. 478 (1988)
(notice by publication inadequate as to estate creditors whose
identities were known or ascertainable by reasonably diligent
efforts); Mennonite Bd. of Missions v. Adams,
462 U. S. 791 (1983)
(notice by publication and posting inadequate to inform real
property mortgagee of a proceeding to sell the mortgaged property
for nonpayment of taxes); Greene v. Lindsey,
456 U. S. 444 (1982)
(posting summons on door of a tenant's apartment provided
inadequate notice of eviction proceedings); Schroeder v. City of
New York,
371 U. S.
208 (1962) (publication plus signs posted on trees inadequate
to notify property owners of condemnation proceedings); Walker v.
City of Hutchinson,
352 U. S. 112 (1956)
(publication as sole notice to property owners inadequate to inform
them of condemnation proceedings). In these cases, the Court
identified mail service as a satisfactory supplement to statutory
provisions for publication or posting. But the decisions, it bears
note, do not bless mail notice as an adequate-in-all-circumstances
substitute for personal service. They home in on the particular
proceedings at issue and do not imply that in the mine-run civil
action, a plaintiff may dispense with the straightforward,
effective steps required to secure proof of service or waiver of
formal service. See Fed. Rules Civ. Proc. 4(d),
4(l).
178
III
Returning to the instant case and the question Mullane
identified as pivotal: Was the mail delivery procedure at FCI Milan
"substantially less likely to bring home notice [to prison
inmates]" than a "feasible ... substitut[e]"? 339 U. S., at 315;
cf. Mennonite Bd., 462 U. S., at 803 (O'CONNOR, J., dissenting)
(ability of "members of a particular class ... to safeguard their
interests ... must be taken into account when we consider the
'totality of the circumstances,' as required by Mullane"). Prisoner
Dusenbery's situation differs dramatically from that of persons for
whom we suggested ordinary mail service, without more, would
suffice. Those differences, I am persuaded, are dispositive.
A beneficiary not in receipt of actual notice in Mullane would
nevertheless be protected, in significant measure, by beneficiaries
who did receive notice and might have advanced objections shared by
the large class of similarly situated persons. Moreover, the
Surrogate's Court was obliged to review the trustee's accounting
before approving it. In contrast, Dusenbery's alleged ownership
interest stands alone. No others are similarly situated. Dusenbery
claims that the money the FBI seized at his home was not traceable
to an unlawful exchange for a controlled substance. See 21 U. S. C.
§ 881(a)(6) (1988 ed.). Absent notice of the forfeiture proceeding,
Dusenbery had no opportunity to present that claim before an
impartial forum. See 19 U. S. C. § 1609 (1988 ed.) (if no claim is
filed within the prescribed time, the Government shall declare the
property forfeited).
Nor can any undue hardship justify a less than careful endeavor
actually to inform Dusenbery that his property is the subject of an
impending forfeiture. The agency responsible for giving notice of
the forfeiture, here, the FBI, is part of the same Government as
the prisoner's custodian, the Bureau of Prisons (BOP). As the
Second Circuit observed, "[w]hen [a federal] investigating agency
[seeks] a prisoner's cooperation in testifying against some
important wrongdoer,
179
it has no difficulty delivering the message in a manner that
insures receipt." Weng v. United States,
137
F.3d 709, 715 (1998). Similarly, the federal forfeiting agency
should encounter no difficulty in "secur[ing] the [BOP's]
cooperation in assuring that the notice will be delivered to the
[prisoner] and that a reliable record of the delivery will be
created." Ibid.
A further factor counsels care to inform a prisoner that his
Government is proceeding against him or his property. A prisoner
receives his mail only through the combined good offices of
two bureaucracies which he can neither monitor nor control:
The postal service must move the mail from the sender to the
prison, and the prison must then move the mail from the prison
gates to the prisoner's hands. That the first system can be relied
upon does not imply that the second is acceptable. See United
States v. One Toshiba Color Television,
213 F.3d
147, 154 (CA3 2000); accord, Weng, 137 F. 3d, at 715; cf.
Houston v. Lack,
487
U. S. 266, 271 (1988) (Court recognized that "the pro se
prisoner has no choice but to entrust the forwarding of [mail] to
prison authorities whom he cannot control or supervise and who may
have every incentive to delay"; Court therefore held that pro se
prisoner's notice of appeal must be regarded as "filed" when
delivered to prison authorities for mailing). In the cases in which
we indicated that mail notice would be sufficient, by contrast,
receipt hinged only upon the dependability of the postal service,
"upon which prudent men will ordinarily rely in the conduct of
important affairs." Greene, 456 U. S., at 455; see also Mullane,
339 U. S., at 319 ("[T]he mails today are recognized as an
efficient and inexpensive means of communication."); United States
Postal Service, 2000 Comprehensive Statement on Postal Operations
91 (Table 5.1) (on-time delivery rate of first class mail between
87% and 94%).
The majority asserts that "[t]he Government here carried its
burden of showing the ... procedures ... used to give notice."
Ante, at 168. As to the prison to prisoner trans-
180
mISSIOn, that assertion is groundless, for the Government
carried no burden whatever. It introduced nothing to show the
reasonableness or reliability of the mailroom to cell delivery at
FCI Milan at the time of the forfeiture in question. See supra, at
174.
Beyond doubt, the Government can try harder, without undue
inconvenience or expense. Indeed, it now does so: As the Government
informed the Court on brief, prison employees currently "must not
only record the receipt of the certified mail and its distribution,
but the prisoner himself must sign a log book acknowledging
delivery." Brief for United States 24 (citing BOP Program Statement
5800.100409, 5800.100409A (Nov. 3, 1995)). If a prisoner refuses to
sign, a prison officer must document that refusal. BOP Operations
Memorandum 035-99 (5800), p. 2 (July 19, 1999). The Government
noted additionally that administrative forfeiture notices, along
with "appropriately marked congressional, judicial, law
enforcement, and attorney correspondence," are now marked "special
mail," to be "opened only in the inmate's presence." Brief for
United States 29, n. 19 (citing 28 CFR § 540.12(c) (2001) and BOP
Program Statement 5800.10.35).
The Government, of course, should not be "penalized" for
upgrading its policies. See ante, at 172. It would be improper to
brand the BOP's 1988 procedures deficient simply because those
procedures have since been improved. Nevertheless, the new rules
show that substantial improvements in reliability could have been
had, in 1988 and years before, at minimal expense and
inconvenience. Nor will it do to label these efforts a matter of
executive grace. They undeniably provide a "feasible" means
"substantially [more] likely to bring home notice" than FCI Milan's
prior uncertain mailroom to prison cell practice. See Mullane, 339
U. S., at 315.3
3 The majority suggests that it is necessary to "explain" how
"requiring the
end recipient to sign for a piece of mail
substantially improves the reliability of the delivery procedures
leading up to that person's
181
The Government would assign to Dusenbery the burden of showing
that the mail delivery system inside the prison was unreliable at
the relevant time. Brief for United States 23-24. The Court shies
away from explicit agreement, for that is not what Mullane
instructs. Rather, the party obliged to give notice-here, the
Government-must adopt a method "reasonably calculated" to reach the
intended recipient. See 339 U. S., at 318; One Toshiba Color
Television, 213 F. 3d, at 155 (If the Government "chooses to rely
on less than actual notice, it bears the burden of demonstrating
the existence of procedures that are reasonably calculated to
ensure that [actual] notice will be given."). The Government,
staying "within the limits of practicability," Mullane, 339 U. S.,
at 318, now conforms to the foundational precedent; its prior
practice fell short of the requirement that "[t]he means employed
must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it,"
id., at 315.4
The majority is surely correct that the Due Process Clause does
not require "heroic efforts" to ensure actual notice.
receipt." Ante, at 172. The signature procedure now in place
offers the FBI the same security that motivates any other postal
customer to pay a surcharge for certified mail, return receipt
requested: A sender who knows whether delivery to the addressee was
accomplished can try again if the first effort fails. Moreover, if
forfeiture cannot be had absent a logbook signature or
documentation that the addressee refused to sign, the BOP will have
every incentive to make sure its internal procedures guarantee
reliable delivery. The BOP's incentive fades if all that is
required is a general statement by a mailroom employee that it is
prison policy to deliver inmate mail. See supra, at 174.
4 The majority's concern that a more demanding proof of notice
requirement would undermine finality, ante, at 171, is baffling:
Disputes over whether notice was sent or received would be
diminished, not encouraged, by requiring proof of notice by
signature. Under the regime the majority tolerates, notice may be
delivered or not depending on the diligence or carelessness of the
prison administration and the reliability or neglect of its Unit
Teams. "The title to property should not depend on such vagaries."
Ibid.
182
Ante, at 170. But the BOP's recently installed proof of delivery
procedures require no convoys of armored vehicles to "escor[t]"
prisoners to the post office. Ibid. There is little danger that
Hollywood will confuse the rescuers of Private Ryan, see ibid.,
with a BOP Unit Team member, putatively delivering certified mail
to inmates in his charge at least since 1988, instructed a decade
later to linger for the additional moments required to secure for
each delivery a signature in a logbook.5 The Due Process Clause
requires nothing of the Government in cases of this genre beyond
the practicable, efficient, and inexpensive reform the BOP has
already adopted.
Notice consistent with due process "will vary with circumstances
and conditions." Mennonite Bd., 462 U. S., at 802 (O'CONNOR, J.,
dissenting) (emphasis deleted) (internal quotation marks omitted).
Given the circumstances and conditions of imprisonment, the
Government must have cause to be confident that legal notices to
prisoners will be delivered inside the prison with the care "one
desirous of actually informing the [addressee] might reasonably
adopt to accomplish it." Mullane, 339 U. S., at 315. The uncertain
mailroom to cell delivery system formerly in place at FCI Milan
5 The majority worries that a firmer rule on delivery might
"also apply, for example, to members of the Armed Forces both in
this country and overseas." Ante, at 170. Of course, many
active-duty military personnel, both on and off military bases,
maintain personal mailboxes and interact with local postal
authorities as does any other resident. The majority is right that
other members of the Armed Forces-soldiers in combat, for
example-are in respects material to this case similarly situated to
Dusenbery: Government authority determines their whereabouts and
restricts their movements, and that same authority receives their
mail at a central delivery location and must make arrangements to
distribute it further. It is at least doubtful, however, that a
soldier, oblivious to a pending action, would return home to find
her property irrevocably forfeited to her Government because she
had the misfortune to be in a combat zone too long.
183
fell short of that mark. Greater reliability could be achieved
with modest effort. Because the Court finds that small but
significant effort undue, I dissent.
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