                                                                                     PUBLISH


                     IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                                 ________________________            U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                         No. 97-8732                        02/08/99
                                   Non-Argument Calendar                THOMAS K. KAHN
                                ________________________                     CLERK
                             D.C. Docket No. 5:97-MCR-19-WDO



UNITED STATES OF AMERICA,

                                                                               Plaintiff-Appellee,

       versus



JAMES R. EUBANKS,

                                                                             Defendant-Appellant.


                                __________________________

                      Appeal from the United States District Court for the
                                  Middle District of Georgia
                                _________________________
                                     (February 8, 1999)

Before RONEY, HILL and KRAVITCH, Senior Circuit Judges.

PER CURIAM:

       James R. Eubanks, proceeding pro se, appeals the district court's dismissal of his

Fed.R.Crim.P. 41(e) action to recover $34,166.00 forfeited to the United States. The background

facts show that on January 26, 1992, Eubanks and two other individuals were driving
southbound on Interstate 75 in the Middle District of Georgia when a state trooper stopped them

for speeding. During a consensual search of the car, the officer found $34,166.00 in a gray

suitcase in the trunk. Eubanks claimed ownership of the suitcase. When asked about the cash,

Eubanks stated he was in the business of selling jogging suits and was headed to Florida to buy

some wholesale. Eubanks’ companion, Kyle Tatum, was charged and convicted for being a

felon in possession of a firearm also found in the car.

       The money found in the car was administratively seized and forfeited by the Drug

Enforcement Agency (the "DEA"). As required by statute, the DEA sent Eubanks a written

notice of seizure by certified mail, and the receipt returned with Eubanks’ signature. Notices

were also sent to James Eubanks at a different address. Additionally, the DEA published notices

in a national newspaper. All notices contained instructions on contesting a forfeiture action and

stated the last date to file a claim was April 14, 1992. After receiving no claim contesting

forfeiture, the DEA administratively forfeited the entire sum to the United States on April 27,

1992. On April 16, 1997, five years after the forfeiture, Eubanks filed a motion for return of the

forfeited money.

       The district court denied Eubanks' motion because (1) Federal Rule of Criminal

Procedure 41(e) did not authorize the return of civilly forfeited property; (2) the motion was

untimely; and (3) the currency was lawfully and properly forfeited.

       On appeal, Eubanks argues that (1) he did not receive proper notice of the forfeiture, (2)

no probable cause existed to connect the currency with drug transactions, and (3) the district

court did not liberally construe his motion.




                                                 2
       Rule 41(e) provides that a person aggrieved by an unlawful search and seizure may move

the district court for return of the property on the ground that such person is entitled to lawful

possession of the property. Fed.R.Crim.P. 41(e). A Rule 41(e) motion is unavailable, however,

when property is retained pursuant to civil forfeiture instead of for use as evidence. See United

States v. Watkins, 120 F.3d 254, 255 (11th Cir. 1997), cert. denied, 118 S.Ct. 1407 (1998).

Consequently, Eubanks' claim was not raised properly under Rule 41(e).

       Even liberally construing Eubanks' complaint, the district court could only exercise

jurisdiction over Eubanks' claim under two narrow circumstances, neither of which is applicable

here. See Matter of Sixty-Seven Thousand Four Hundred Seventy Dollars ($67,470.00), 901

F.2d 1540, 1543 (11th Cir. 1990)(federal courts lack jurisdiction to review the merits of a

forfeiture decision made by the DEA). First, a federal court may have jurisdiction when the

agency refuses to consider a request that it exercise its discretion. See 901 F.2d at 1543. Here,

nothing in the record indicates that Eubanks ever requested that the DEA exercise its discretion

not to forfeit the currency. Consequently, this exception does not apply.

       Second, federal courts under limited circumstances may exercise equitable jurisdiction

over agency forfeiture decisions. See 901 F.2d at 1543. The decision to exercise equitable

jurisdiction is highly discretionary and must be exercised with caution and restraint. See 901

F.2d at 1543. In other words, jurisdiction is appropriate only when the petitioner's conduct and

the merits of his petition require judicial review to prevent manifest injustice. See 901 F.2d. at

1543. Here, despite Eubanks' bare allegations to the contrary, the record shows that Eubanks

received lawful notice that the currency was subject to forfeiture through both certified mail and

publication. 19 U.S.C. § 1607. In fact, Eubanks' signature on his pleading is identical to that on


                                                  3
the return receipt for the mailed notice. It is inappropriate for a court to exercise equitable

jurisdiction to review the merits of a forfeiture matter when the petitioner elected to forego the

procedures for pursuing an adequate remedy at law. See $67,400.00, 901 F.2d at 1545. Because

Eubanks had the opportunity to dispute the basis for the forfeiture in 1992 and waited five years

to do so with no explanation for the delay, the district court could not exercise its equitable

jurisdiction to hear his petition at such a late date.   The district court did not have jurisdiction to

entertain Eubanks' petition.

        AFFIRMED.




                                                    4
