March 10, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                     

No. 92-2001
              JORGE SARIT AND DENNIE ESPAILLAT,

                    Plaintiffs, Appellees,

                              v.

        U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,

                   Defendants, Appellants.

                                     

                         ERRATA SHEET

   The  opinion of this court  issued on February  23, 1993, is

amended as follows:

   Page  8, line  6  from the  bottom:   "statue"  should  read

"statute".

February 23, 1993

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 92-2001

              JORGE SARIT AND DENNIE ESPAILLAT,

                   Plaintiffs, Appellants,

                              v.

        U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                        

                                         

                            Before

                   Torruella, Circuit Judge,
                                           

                Bownes, Senior Circuit Judge,
                                            

                     Cyr, Circuit Judge.
                                       

                                         

David N. Cicilline for appellants.
                  

Rachel  V. Lee,  Trial  Attorney, Civil  Division,  United  States
              

Department of Justice, with whom Stuart M. Gerson, Assistant  Attorney
                                             

General,  United States  Department  of Justice,  Helene M.  Goldberg,
                                                                 

Director, Torts  Branch, Civil  Division, United States  Department of

Justice, Michael P. Iannotti, Assistant United States Attorney for the
                        

District of Rhode Island and Lincoln C. Almond, United States Attorney
                                          

for the District of Rhode Island were on brief, for appellees.

                                         

                      February 23, 1993

                                         

          BOWNES, Senior Circuit Judge.   This case  involves
                                      

plaintiffs-appellants' attempts to recover $41,448.00 in U.S.

currency,  which  was  seized   by  the  United  States  Drug

Enforcement  Administration   ("DEA")   and  has   now   been

forfeited.   In  their civil  action under  28 U.S.C.    1331

against the DEA and its agents, plaintiffs appeal two rulings

by  the  district court.    First,  plaintiffs challenge  the

court's grant of partial  summary judgment for the defendants

upon    its    finding   that    plaintiffs    had   received

constitutionally  adequate  notice   of  the   administrative

forfeiture  proceeding.    Second, plaintiffs  challenge  the

court's  dismissal of  the case  on the  basis that,  once it

granted  partial  summary  judgment  on  the  Fifth Amendment

notice  claim,   it  no  longer  had   jurisdiction  to  hear

plaintiffs' Fourth  Amendment claim.  We  affirm the decision

of the district court.

                              I.

                          Background
                                    

          The procedural background of this case is important

and we  rehearse it  in detail, proceeding  chronologically. 

On  July 28,  1989,  DEA agents  seized  $41,448.00 from  the

plaintiffs'  then-residence located  at 114  Alvin Street  in

Providence, Rhode Island.  The attendant search was conducted

without a warrant.  On  August 21, 1989, plaintiffs'  counsel

filed a motion pursuant  to Fed. R. Crim. P.  41(e),1 seeking

return of  the  currency.   On  September 1,  Assistant  U.S.

Attorney Michael Iannotti objected to this motion and filed a

memorandum  of law  which  has played  a  focal role  in  the

arguments before this court.  In that memorandum, he informed

plaintiffs and the district court that the currency was being

held  for  administrative  forfeiture pursuant  to  Title  21

U.S.C.    881(d) and Title 19 U.S.C.    1607.  The memorandum

provided  the seizure  number that  had been assigned  to the

currency.  The memorandum also stated  that "a notice [would]

be  sent  to all  those  who  may  have  an interest  in  the

currency," and  that "publication [would] commence within the

next two  months."  The Assistant U.S.  Attorney averred that

the  assignment   of  a  seizure  number   would  permit  the

plaintiffs  "at any time, without waiting for the DEA to take
                        

any further action,  to file a claim  and cost bond  with the

DEA thus causing  the DEA  to refer  the matter  to the  U.S.

Attorney   for   the   initiation  of   judicial   forfeiture

proceedings" (emphasis in original).  

                    

1    Fed. R. Crim.  P. 41(e), Motion for  Return of Property,
provides in pertinent part:

     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.

                             -5-

          On or about  September 19, the  DEA sent notice  of

the administrative forfeiture proceeding by certified mail to

114  Alvin Street, where the  currency had been  seized.  The

notice  contained required  information, not included  in the

memorandum,  concerning procedures to  be followed, deadlines

to be met, and the right  of a petitioner to proceed in forma
                                                             

pauperis in lieu of the posting of a cost bond.   This notice
        

was  subsequently returned to  the DEA "unclaimed."   The DEA

made no  further attempts to  notify the plaintiffs  or their

counsel of the pending  forfeiture other than by publication.

          On September  21, following  a conference with  the

court pursuant to the 41(e) motion, plaintiffs sent a  letter

to the  DEA advising it  of their  intention to file  a claim

under the  Federal Tort Claims  Act.   The first  publication

notice, marking the beginning  of the twenty-day period after

which plaintiffs' right  to file a claim  and to post a  cost

bond would  expire, appeared in  the newspaper USA  Today, on
                                                         

September 27.  On  October 13, the district court  denied the

plaintiffs' 41(e)  motion on equitable grounds,  deferring to

the administrative  forfeiture proceedings.   The plaintiffs'

right to file a claim with the DEA expired on October 17.  On

November 2,  the  administrative forfeiture  was decreed  and

entered.  

                             -6-

          On  November 8,  the  plaintiffs,  having  procured

money to post a cost bond, filed a formal claim with the DEA.

Plaintiffs  also moved  for  reconsideration of  their  41(e)

motion.  On  December 21, defendants  objected to the  motion

for  reconsideration  and  included,  in  their  accompanying

memorandum,  the information  that the  currency had  already

been   administratively  forfeited.      The   court   denied

plaintiffs' motion  as moot  because the forfeiture  had been

completed.    After learning  that  their  property had  been

forfeited, plaintiffs filed a motion to vacate the forfeiture

on December 29, which  motion was dismissed by the  court for

lack  of  jurisdiction.    Underscoring  its  awareness  that

plaintiffs had been trying to resolve this matter for several

months, the  court advised plaintiffs  in its order  that the

proper method for collateral attack was a civil rights action

under Title 28 U.S.C.   1331.

          Thereafter, plaintiffs filed a civil  rights action

against the DEA and  its agents alleging violations of  their

rights  under  the  Fifth  Amendment,  claiming  insufficient

notice of the administrative proceeding, and under the Fourth

Amendment,  claiming  that the  currency  was  seized in  the

course  of  a  warrantless,  non-consensual  search.      The

district  court  initially  denied  defendants'   motions  to

dismiss and for summary judgment, finding that the plaintiffs

had stated a valid cause of action under 28 U.S.C.   1331, by

                             -7-

pleading violations  of the Fourth and  Fifth Amendments, and

that  sovereign immunity was  waived under the Administrative

Procedures  Act, 5  U.S.C.    701 et  seq.   The court  found
                                         

summary judgment inappropriate because of a dispute regarding

consent  in the Fourth Amendment claim, and the need for more

evidence on the issue of adequate notice underlying the Fifth

Amendment claim. 

          Both  parties  later  filed  motions   for  partial

summary judgment on the issue of the adequacy of notice.  The

district  court, on  July 15,  1991, granted  partial summary

judgment for the  defendants on the notice issue,  finding it

constitutionally  sufficient  that  the government  had  sent

notice  to the  address  from  which  the currency  had  been

seized.   The court buttressed  its conclusion with  the fact

that plaintiffs had  received the  Assistant U.S.  Attorney's

September  1  memorandum  putting   them  on  notice  that  a

forfeiture proceeding would ensue.  

          Trial on the Fourth  Amendment issue began on March

11.  The  defendants moved  to dismiss the  case for lack  of

jurisdiction.   The plaintiffs  moved for  reconsideration of

the court's grant  of partial summary judgment  on the notice

issue.    Upon deciding  not to  alter  its grant  of summary

judgment,  the   court  dismissed   the  case  for   lack  of

jurisdiction finding that, because  the notice issue had been

resolved against plaintiffs, they  thereby lost the waiver of

                             -8-

sovereign immunity  that had  allowed the court  to entertain

the case in the first instance. 

                             II.

                          Discussion
                                    

A.   Notice/Due Process
                       

          We  begin  by  addressing  plaintiffs'  claim  that

defendants   failed  adequately   to  notify   them  of   the

administrative forfeiture proceeding.    Because the district

court granted defendants' motion for summary judgment on this

issue, our  review is  plenary, and  we construe all  factual

inferences in  favor of plaintiffs.   See Damaris Rivera-Ruiz
                                                             

v. Leonardo Gonzalez-Rivera, No. 92-1558, slip. op. at 2 (1st
                           

Cir.  Jan. 5, 1993) (citing E.H. Ashley  &amp; Co. v. Wells Fargo
                                                             

Alarm Servs., 907 F.2d 1274, 1277 (1st Cir. 1990)).   
            

     Notice  of  impending  forfeiture proceedings  involving

seizures valued at $500,000  or less is governed by  Title 19

U.S.C.   1607, which provides in pertinent part:

     [T]he  appropriate customs  officer  shall cause  a
     notice  of the  seizure  of such  articles and  the
     intention  to forfeit and sell or otherwise dispose
     of the same according to law to be published for at

                             -9-

     least three successive weeks  in such manner as the
     Secretary  of  the  Treasury may  direct.   Written
     notice of seizure together with information  on the
     applicable procedures  shall be sent to  each party
     who  appears  to have  an  interest  in the  seized
     article.

The  regulations  interpreting  the  publication  requirement

provide  for   publication   in  "a   newspaper  of   general

circulation in the judicial  district in which the processing

for forfeiture is  brought."  21 C.F.R.    1316.75(a) (1992).

The publication notice must do the following:

     (1) Describe the property seized and show the motor
     and  serial numbers,  if any;  (2) state  the time,
     cause, and place of seizure; and (3) state that any
     person desiring to  claim the property  may, within
     20  days from the date  of first publication of the
     notice,  file  with  the  custodian  or  DEA  Asset
     Forfeiture Section  a claim  to the property  and a
     bond  with  satisfactory  sureties in  the  sum  of
     $5,000 or ten percent  of the value of the  claimed
     property  whichever is  lower,  but  not less  than
     $250.  

21 C.F.R.   1316.75(b) (1992).

          There  is no  dispute that  defendants sent  notice

with  all  required  information to  plaintiffs'  last  known

address,  the address  from  which the  currency was  seized.

There is also no dispute that defendants issued proper notice

by publication.  Thus, defendants met the requirements of the

statute.  

          Plaintiffs  contend  that   defendants  failed   to

satisfy the notice requirements of the  Due Process Clause of

the  Fifth  Amendment.    Relying upon  the  Supreme  Court's

opinion in Mullane v.  Central Hanover Bank &amp; Trust  Co., 339
                                                        

                             -10-

U.S. 306, 314  (1950), plaintiffs  argue that  the notice  in

this  case  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."  Plaintiffs do not facially challenge the notice

provisions in the statute, but draw our attention  to special

"circumstances" affecting  the question of whether  the DEA's

notice was so "reasonably calculated."  See id.  
                                               

          It is  plaintiffs' position that the  DEA was fully

aware of their interest  in the seized currency,  given their

pursuit  of their 41(e) motion,  and their letter  to the DEA

informing the DEA that they intended to take action under the

FTCA.   Plaintiffs point out that  the DEA also  was aware of

their  representation  by  counsel  and  of  their  counsel's

identity  and address.2   Once the DEA received an indication

that the  notice  had been  returned "unclaimed,"  plaintiffs

assert, it would have been  simple to ascertain from  counsel

their  current address, as would it have been to notify their

counsel directly of the pending forfeiture.   Cf. Robinson v.
                                                          

Hanrahan, 409 U.S. 38, 40 (1972) (per curiam) (citing Mullane
                                                             

for   the  proposition   that  notice   by  publication   was

insufficient where plaintiffs' names and addresses were known

or "easily ascertainable").  

                    

2   Plaintiffs treat  the government, the  U.S. Attorney  for
Rhode Island and the DEA in Washington, as a single entity.  

                             -11-

      We  find   that  the   DEA  acted  reasonably   on  the

information  it had when notice was sent by mailing notice to

the  address from  which the  property was  seized.   We need

determine only whether the DEA's duty changed in the light of

its  subsequent discovery  that  the mailed  notice had  been

ineffective.   Given  plaintiffs'  vigorous (although  tardy)

pursuit of their claim, the fact that the government had been

involved in ongoing  court action  on the very  issue of  the

seizure of  plaintiffs' currency, the  government's awareness

of  plaintiffs' representation  by  counsel, and  the frowned

upon treatment of forfeitures, the call  is a close one.  See
                                                             

generally United  States v.  One 1936  Model Ford  V-8 Deluxe
                                                             

Coach,  307  U.S.  219,  226  (1939)  ("Forfeitures  are  not
     

favored; they should be enforced only when within both letter

and spirit of the law.").  Nevertheless, Mullane  counsels us
                                                

to consider all  of the  circumstances, and we  find in  this
               

case  other  pertinent  factors,  including  the government's

memorandum  and  the conduct  of  plaintiffs' counsel,  which

compel  us to uphold the finding of  the district court.  For

the  reasons that  follow, we  hold  that defendants  met the

minimum threshold requirements of due process.  

     1.   Mullane and its Progeny 
                                 

          We  note at  the onset  that while  Mullane clearly
                                                     

contemplates  inquiry  into   the  "peculiarities"  and   the

                             -12-

"practicalities" of a given  case, it has not  generally been

interpreted to  require a  party to make  additional attempts

beyond  notice that is legally satisfactory at the time it is

sent.   See Mullane, 339 U.S. at  314-15.  The Court has read
                   

an  implicit  bad faith  standard  into  the notice  inquiry,

overturning notice even where formal procedures were followed

if the notifying party knew or had reason to know that notice

would be ineffective.  See,  e.g., Robinson v. Hanrahan,  409
                                                       

U.S.  37 (1972)  (per curiam)  (in forfeiture  action, notice

mailed  to interested  party's  home address  was  inadequate

where  government knew party was incarcerated awaiting trial,

and  where party  remained in  custody  throughout forfeiture

proceedings and  did not  receive notice until  his release);

Covey  v. Town of Somers, 351 U.S. 141 (1956) (in foreclosure
                        

action,  notice  by  publication,  mailing  and  posting  was
                                               

inadequate where individual involved was known by the town to

be mentally disabled and under the protection of a guardian).

Knowledge  of  the  likely  effectiveness of  the  notice  is

measured from the moment at which the notice was sent.  

          Virtually  all   of  the   cases  relied   upon  by

plaintiffs  share the  feature--missing from  this case--that

the government knew at the time  the notice was sent that the

notice  was  likely  to  be  ineffective.3    See  Fisher  v.
                                                         

                    

3     Only in  one  case cited  by plaintiffs  did the  court
require  the DEA, absent any  evidence of bad  faith, to make
additional attempts  to notify the defendant  when notice was

                             -13-

Stutman, Nos. 85-3133-MA,  85-4307-MA, 1987 U.S. Dist.  LEXIS
       

10682, at *6-7  (D. Mass.  Nov. 6, 1987)(DEA  sent notice  of

forfeiture to  invalid address when they  had correct address

in  their possession);  Gutt v. United  States, 641  F. Supp.
                                              

603, 606 (W.D. Va.  1986) (DEA mailed notice to  Gutt's hotel

with  knowledge that he no longer resided there and failed to

apprise  attorney  who  specifically   had  requested  to  be

informed  in writing);  Cepulonis  v. United  States, 543  F.
                                                    

Supp. 451,  452 (E.D.N.Y. 1982)  (DEA sent notice  to party's

home  address  when party  was  incarcerated);  cf. Vance  v.
                                                         

United States, 676 F.2d  183, 187 (5th Cir. 1982)  (notice by
             

publication   inadequate   where  government   knew  business

claimant was  engaged in  and claimant's address);  Jaekel v.
                                                          

United  States,  304  F.   Supp.  993,  999  (S.D.N.Y.  1969)
              

(government  could not  rest on  publication notice  where it

knew claimant's name and address). 

          Thus, courts are reluctant under Mullane to  extend
                                                  

a  notifying party's duty beyond initial satisfactory notice.

Only exceptional  circumstances would compel us  to so extend

the DEA's duty, absent indication that it knew or should have

known that the notice would be ineffective. 

                    

returned unclaimed.   See Montgomery v.  Scott, 802 F.  Supp.
                                              
930 (W.D.N.Y.  1992).   Interestingly, the court  relied upon
the  fact  that  the  plaintiff was  being  prosecuted  in  a
criminal  action  and that  the  DEA could  have  reached him
through  that  vehicle.    Unlike  the  case  before  us,  in
Montgomery, the  claimant had no actual  notice whatsoever of
          
the pendency of the forfeiture proceeding. 

                             -14-

     2.   Circumstances Affecting the Adequacy of the Notice
                                                            

          Rather  than  uncovering exceptional  circumstances

compelling us to find that the government had a duty over and

above  reasonable and technical satisfaction of the statutory

requirements, we find that the damage done by the ineffective

notice could  and ought to  have been stemmed  by plaintiffs'

counsel.   The  Assistant U.S.  Attorney's memorandum  to the

district court objecting to plaintiffs' Rule 41(e) motion put

counsel on  notice that a forfeiture proceeding would ensue. 

Even though, as counsel for plaintiffs argued, the memorandum

did  not  specify an  exact  time  of  publication, and  thus

counsel lacked  a precise indication  of the date  from which

the twenty-day period would  run, he certainly had sufficient

general  notice  of  the  risk that  the  property  would  be

forfeited  within  the  coming  months  if  action  were  not

taken.4    The statute  covering  forfeitures  (cited in  the

memorandum)   and  the  regulations   interpreting  it,  were

available to  counsel.   The regulations plainly  explain the

consequence of forfeiture in  twenty days.  Counsel  had only

to look to these sources.

                    

4   The Assistant  U.S. Attorney's  memorandum  was filed  on
September  1, 1989.   The  DEA could  have published  notice,
thereby   beginning  the   twenty-day  period   during  which
plaintiffs  could challenge  the forfeiture,  any time  after
that  date.  Plaintiffs' did not file a formal claim with the
DEA until November 8, more than two months later.   

                             -15-

          We also do not credit plaintiffs' argument that the

Assistant  U.S.  Attorney's  reference  to   the  plaintiffs'

ability to  initiate action "at any  time," caused confusion,

in  effect  sanctioning  plaintiffs'  delay.    Although  the

memorandum might well have confused plaintiffs had it gone to

them  directly, it ought not to  have confused their counsel.

Counsel is  charged  with  knowledge of  the  law,  and  that

knowledge is imputed to plaintiffs.  Moreover, in the context

in  which  the  phrase appeared,  we  do  not  find that  the

statement, "at  any time," was deliberately  misleading.  The

statement  was part  of  the government's  argument that  the

court should  decline to exercise its  equitable powers under

Rule 41(e), because of the availability of the at-law  remedy

provided  by the  forfeiture  statute and  regulations.   The

argument pointed  out the  plaintiffs' ability to  move under

Rule 41(e) more  quickly than the government could process an

administrative forfeiture.  The  U.S. Attorney was making the

point  that no  undue delay  would be caused  plaintiffs, who

could go  ahead and  challenge the administrative  proceeding

without waiting,  should the  court decide to  defer to  that

proceeding. 

       In  addition  to  putting  counsel on  notice  of  the

forfeiture, the memorandum contained a seizure  number, which

counsel could  have  used  to  ascertain the  status  of  the

action,  and to obtain from  the DEA the  anticipated date of

                             -16-

publication notice.   Although  the duty of  providing notice

lies  plainly with  the government,  once the  plaintiffs and

their counsel were aware that  notice of the forfeiture would

be sent in the  ensuing two months, they could  have notified

the  DEA of  their own  change of  address--they were  in the

better position as far as that information was concerned. 

          Plaintiffs'  explanation for their delay in posting

the  cost bond  and  thereby challenging  the forfeiture  was

their difficulty in coming up with the funds to do so.  It is

unfortunate that plaintiffs did not receive the notice mailed

by the  DEA which plainly  explains the  right of a  poor and

needy  claimant  to proceed  in  forma  pauperis in  lieu  of
                                                

posting the cost bond.  Once again, however, plaintiffs  were

represented by counsel; counsel  is charged with knowledge of

his  clients'  rights  to  proceed  in  forma  pauperis,  and
                                                       

counsel's knowledge is imputed to his clients. 

          We  are not  entirely unsympathetic  to plaintiffs'

argument that the circumstances affecting notice were altered

by the  government's ongoing  involvement with plaintiffs  in

litigation  over the  return of  the  seized property  and by

plaintiffs' persistent pursuit of their rights.  No doubt the

government could have  ascertained from plaintiffs'  attorney

their current address.   We  are also troubled  by the  DEA's

choice  of publication notice in  USA Today, which  we do not
                                           

consider   a  particularly   effective  notice   vehicle  for

                             -17-

Providence, Rhode Island.  The  regulations, however, require

only a  publication "of  general circulation in  the judicial

district in  which the . .  . forfeiture is brought,"  and we

find no violation of due process in this regard.  21 C.F.R.  

1316.75(a).  The government's conduct  simply did not rise to

a violation of the due process clause of the Fifth Amendment.

B.   Dismissal for Lack of Jurisdiction
                                       

          We next  review the district  court's dismissal  of

the case on  the basis that it lost jurisdiction  to hear the

remaining Fourth  Amendment claim  once the notice  issue was

resolved  against  plaintiffs.    This  issue  poses  a  pure

question  of  law.   Therefore,  our  standard of  review  is

plenary.   See Liberty Mutual  Ins. Co.  v. Commercial  Union
                                                             

Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992). 
        

          Because  the plaintiffs' Fourth  Amendment claim is

directed at the  DEA, an  agency of the  United States,  this

issue  involves the  United States'  waiver of  its sovereign

immunity.   Only an express waiver of sovereign immunity will

give  a court jurisdiction to hear a claim against the United

States.  Lehman  v. Nakshian, 453 U.S. 156, 161  (1981).  The
                            

Administrative Procedures Act, 5  U.S.C.   702, provides such

                             -18-

a  waiver  for  certain forms  of  equitable  relief.5   That

waiver   is,  however,  limited  by  APA,  5  U.S.C.     701.

Specifically  relevant to  this  case is    701(a)(1),  which

limits waiver where "statutes preclude judicial review."  The

issue  presented is  whether the  forfeiture statute  and the

regulations  implementing  it,  by providing  an  avenue  for

judicial  relief,  constitute  a  statute  precluding  review

within the meaning of   701(a)(1).

          The district court originally obtained jurisdiction

over this case due to plaintiffs' claim that constitutionally

deficient notice prevented them,  in the first instance, from

meeting the deadlines necessary  to pursue judicial relief as

provided by the forfeiture  statute and regulations.  Whereas

most  challenges  to  forfeiture  would be  foreclosed  by  a

                    

5   Administrative  Procedures Act, 5 U.S.C.    702, provides
in pertinent part:

     A  person suffering legal  wrong because  of agency
     action,  or  adversely  affected  or  aggrieved  by
     agency  action within  the  meaning of  a  relevant
     statute,  is entitled  to judicial  review thereof.
     An action in  a court of the  United States seeking
     relief other than money damages and stating a claim
     that an  agency or  an officer or  employee thereof
     acted or failed  to act in an official  capacity or
     under  color  of  legal   authority  shall  not  be
     dismissed  nor  relief  therein  be  denied  on the
     ground that it is  against the United States .  . .
     Nothing  herein  (1) affects  other  limitations on
     judicial review or the  power or duty of the  court
     to dismiss any  action or deny relief  on any other
     appropriate  legal  or  equitable  ground;  or  (2)
     confers  authority to  grant  relief  if any  other
     statute that  grants consent to  suit expressly  or
     impliedly forbids the relief which is sought.

                             -19-

plaintiffs' failure to  utilize the  mechanism for  obtaining

judicial  relief  provided  in  the  forfeiture  statute  and

regulations,  courts  have   entertained  challenges  to  the

adequacy  of  notice, reasoning  that  the  mechanism is  not

available  to a plaintiff who is not properly notified of the

pending  forfeiture.   See, e.g.,  Marshall Leasing,  Inc. v.
                                                          

United States, 893 F.2d 1096, 1102-03 (9th Cir. 1990); Willis
                                                             

v. United States, 787 F.2d 1089, 1092-93 (7th Cir. 1986). 
                

          Once  the district  court found,  as have  we, that

notice was constitutionally sufficient, it further determined

that    701(a)(1) applied to deny the court jurisdiction over

the remainder of the  case.  The court found  that plaintiffs

had had  the means available under the  forfeiture statute to

take the case  to a judicial forum, and that  they had failed

to do so.  See Sarit v. Drug Enforcement Admin., 796 F. Supp.
                                               

55, 59 (D.R.I. 1992)  ("The forfeiture statute `clearly makes

available to  a claimant  invoking the remedy  an appropriate

forum  in  which  to  test  the  legality  of  the  contested

seizure.'"   (citation  omitted)).     Concluding   that  the

forfeiture statute was a "statute" which "preclude[d] review"

under    701(a)(1), because the statutory  scheme provided an

avenue for judicial relief,  the district court dismissed the

case.

          The  Supreme  Court  has  held  that  in  assessing

whether Congress  intends to  preclude  judicial review,  the

                             -20-

intention  need not be found  in the express  language of the

statute, but should  be determined from the structure  of the

statutory  scheme and  from  its objectives.    See Block  v.
                                                         

Community  Nutrition Inst.,  467 U.S. 340,  345 (1984).   The
                          

district court correctly interpreted   701(a)(1) to find that

the  forfeiture statute  precluded  judicial  review in  this

case.

          Plaintiffs  ask  us  to  extend the  exception  for

constitutionally deficient notice to hear the merits of their

Fifth  Amendment claim.  It  is their position  that, even if

the notice  was constitutionally  adequate, it still  was not
                                          

effective.  In practical terms, plaintiffs claim, they had no
         

knowledge of  the deadlines for filing a cost bond.  Absent a

legal defect  in the notice,  however, we cannot  correct any

residual  ineffectiveness  if  such  there be,  by  extending

jurisdiction  where Congress  has  spoken otherwise.     Once

again,   we  are  sympathetic   with  plaintiffs'  frustrated

attempts to obtain a hearing on the merits.  We are, however,

bound  by the  rule of  law and  the adversary  process.   We

cannot  come  in, deus  ex machina,  and  save a  claim where
                                  

notice is constitutionally sufficient and any failures in its

effectiveness  should  have  been  corrected  by  plaintiffs'

counsel.

C.   Equitable Jurisdiction
                           

                             -21-

          Plaintiffs' final request  is that  we reach  their

Fourth Amendment  claim by  invoking our powers  of equitable

jurisdiction.  The government, in  its brief, argued that the

issue was not raised  below.  At oral argument,  attorney for

plaintiffs claimed  that the issue  had been briefed  for the

district  court.  We find, however, no evidence in the record

that this issue  had been raised  before the district  court.

We are, therefore, precluded  from entertaining it on appeal.

See United States v. Curzi, 867 F.2d 36,  44 (1st Cir. 1989);
                          

Johnston v. Holiday Inns,  Inc., 595 F.2d 890, 894  (1st Cir.
                               

1979). 

       The decision of the district court is affirmed.
                                             affirmed
                                                     

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