
USCA1 Opinion

	




          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.                                          I.                                      Background                                      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.                                         II.                                      Discussion                                      Discussion                                      __________            A.   Notice/Due Process            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  & 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 & 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                  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                 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            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            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                                                         ________                                         -22-
