                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           APR 5 2000
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TAMMY CLANTON; UNITED
    PHARMACEUTICAL INC., an
    Oklahoma corporation,

                  Plaintiffs-Appellants,                 No. 98-6355
                                                    (D.C. No. 96-CV-1340)
    v.                                                   (W.D. Okla.)

    UNITED STATES OF AMERICA ex
    rel. The Drug Enforcement Agency,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.




         Tammy Clanton and United Pharmaceutical Inc. appeal from the district

court’s order granting the government’s motion to dismiss their second amended

complaint.   1
                 Their amended complaint sought the return of monies seized and

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       The government also filed a motion to dismiss this appeal, contending that
the district court’s order being challenged here is not a final judgment. Because
                                                                       (continued...)
administratively forfeited by the Drug Enforcement Administration (DEA).

Before the district court, appellants raised both procedural and substantive

arguments against the forfeitures. As to the procedural challenges, the district

court determined that appellants had been afforded adequate due process, giving

them an opportunity to contest the forfeitures administratively. Because

appellants failed to timely file their claims and cost bond to contest the

forfeitures, however, the court determined that it had no jurisdiction to consider

appellants’ substantive arguments challenging the forfeitures.

      On appeal from that decision, appellants raise five issues. They contest the

district court’s conclusion that it lacked jurisdiction to hear their substantive

claims and present arguments challenging the validity of the forfeitures. They

also contend they were not afforded adequate notice of the forfeitures and argue

that the DEA’s refusal of their claims and cost bond, filed with that agency one

day after the deadline, was arbitrary and in bad faith. Finally, they seek an order

directing the district court to issue a writ of mandamus to the DEA requiring it to

rule on their pending petitions for remission of the forfeitures. The DEA has

since ruled on the petitions for remission and appellants have already appealed

that decision; therefore, this last issue is moot.


1
 (...continued)
the district court subsequently certified its ruling pursuant to Fed. R. Civ. P.
54(b), the government’s motion to dismiss is denied.

                                           -2-
       Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. We review

the district court’s decision under the usual appellate standards, applying a        de

novo review to determinations of law and examining the court’s findings of fact

for clear error only.   See Pierce v. Underwood , 487 U.S. 552, 558 (1988).      2
                                                                                     We

agree with the district court’s legal determination that, so long as appellants

received adequate due process with respect to the forfeitures, their failure to

timely file claims and a cost bond constitutes waiver of any substantive

challenges to the forfeitures themselves.      See United States v. Deninno     , 103 F.3d

82, 84-85 (10th Cir. 1996). Therefore we proceed to examine appellants’ due

process arguments.

       Appellant Tammy Clanton is the president and sole owner of United

Pharmaceutical, where her husband, Darrin Clanton, works. During an inspection

and subsequent warranted searches of both the business premises and home of the

Clantons, the DEA seized property including a computer, inventories of

pseudoephedrine tablets, records, currency and cashier’s checks. Appellants

subsequently filed petitions in federal district court seeking return of the monies

and other property. The DEA sent notices of forfeiture in connection with the



2
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

                                             -3-
seizures of the currency and checks to either or both of the Clanton’s home and

business addresses, and published notice as well. The record evidences that at

least one of the notices was received by Tammy Clanton, as president of United

Pharmaceutical.   See R. Vol. II-A at 245. The DEA also sent a letter to

appellants’ counsel, referencing the seizures by number and description, and

giving appellants twenty days from the date of the letter to file their claims and

cost bond to challenge the forfeitures. Appellants sent their claims of ownership

and a corporate check for the cost bond to the DEA. The DEA returned the

claims and the check, informing appellants in a second letter that certified funds

or a cashier’s check were required to post the bond. That letter gave appellants

yet another twenty days to file their claims and proper cost bond. One day after

this extended deadline, the DEA received a phone call from appellants’ counsel’s

office requesting that someone retrieve the cost bond monies from an unspecified

local Western Union Office. The DEA declined this request, and appellants

ultimately filed their claims and cost bond later that day. The DEA rejected the

claims and cost bond as untimely filed, but construed them as a petition for

remission.

      On appeal, appellants contend that: 1) the DEA’s first letter did not inform

them of the need for certified funds; 2) the DEA’s second letter did not

adequately notify them of the second deadline; 3) the DEA’s refusal to accept the


                                         -4-
claims and cost bond one day after the deadline was arbitrary and in bad faith;

and 4) they never received proper notice of the forfeitures before they filed their

federal petitions. Additionally, appellants complain that the letters from the DEA

were insufficient as notice of the forfeitures, and assert that they made good faith

efforts to get their claims and proper cost bond to the DEA by the deadline date.

      The district court found that the DEA employed reasonable means to give

notice to appellants of the forfeitures. Our review of the record on appeal

convinces us that this finding is not clearly erroneous. Further, appellants do

not--and cannot, on this record--contend that they lacked actual notice of the

forfeitures. See United States v. 51 Pieces of Real Property   , 17 F.3d 1306, 1317

(10th Cir. 1994). We also agree with the district court’s ultimate conclusion that

appellants were afforded adequate due process. They suffered no prejudice from

the DEA’s first letter because they were given an extension in which to file their

claims and a proper cost bond. The record belies appellants’ contentions that the

second twenty-day extension was not clearly expressed in the letter, but “hidden”

on the second page. Finally, the DEA is not obligated to accept late filings as a

result of good faith efforts.




                                           -5-
     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                       -6-
