                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2003

Longenette v. Krusing
Precedential or Non-Precedential: Precedential

Docket 00-3690




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"Longenette v. Krusing" (2003). 2003 Decisions. Paper 693.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/693


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                       PRECEDENTIAL

                                Filed March 7, 2003

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 00-3690


           WILLIAM LONGENETTE,
                          Appellant
                      v.
             PETER KRUSING;
  WILLIAM E. PERRY, SPECIAL AGENT FBI;
   FEDERAL BUREAU OF INVESTIGATION

On Appeal from the United States District Court
   for the Western District of Pennsylvania
      D.C. Civil Action No. 92-cv-00312E
       (Honorable Maurice B. Cohill, Jr.)

         Argued September 17, 2002
    Before: BECKER, Chief Judge, SCIRICA
          and McKEE, Circuit Judges

            (Filed: March 7, 2003)
               KEITH NOREIKA, ESQUIRE
                (ARGUED)
               Covington & Burling
               1201 Pennsylvania Avenue, N.W.
               Washington, D.C. 20004
                 Attorney for Appellant
                                   2


                          BONNIE R. SCHLUETER, ESQUIRE
                          PAUL E. SKIRTICH, ESQUIRE
                           (ARGUED)
                          Office of United States Attorney
                          633 United States Post Office &
                           Courthouse
                          Pittsburgh, Pennsylvania 15219
                            Attorney for Appellees


                   OPINION OF THE COURT

SCIRICA, Circuit Judge:
  This case involves an administrative forfeiture proceeding
of a motor vehicle allegedly used in certain drug
transactions. The pro se prisoner’s claim of ownership was
dismissed as untimely. At issue is whether to apply the
prison mailbox rule.

                                   I.
   On August 30, 1990, federal authorities arrested William
Longenette on drug-related charges. One day later, special
agents of the FBI seized his 1985 Dodge B250 Custom Van,
under § 881 of the Controlled Substances Act. 21 U.S.C.
§ 881. The government initiated administrative forfeiture
proceedings against Longenette’s van on March 27, 1992,
advising him to “file a claim of ownership and a bond . . .
by May 12, 1992” to contest the forfeiture.1 Longenette did
not receive the initial notice immediately since it was
mailed to an incorrect prison location. On April 16,
Longenette claimed ownership of the van in a letter to the
FBI. Longenette also asserted an inability to post the
mandatory bond and requested an in forma pauperis
declaration to provide in lieu of the bond.
  The FBI mailed Longenette an in forma pauperis form on

1. In compliance with 19 U.S.C. § 1608, the government also published
notice of the impending forfeiture in a local newspaper on April 13, 20,
and 27.
                                    3


April 17, responding to a separate request from
Longenette’s former attorney, who had received a copy of
the initial notice. The FBI’s letter accompanying the form
provided a deadline extension and directed Longenette to
“return” the form to the FBI by May 29. The record does not
indicate when Longenette received the IFP form. On May
27, he handed the completed form to prison authorities for
mailing to the FBI, but wrote the date of May 9 next to his
signature. The FBI did not receive the form until June 2,
four days after the May 29 deadline. On July 6, the FBI
sent a letter to Longenette advising him that his bond was
untimely and that the administrative forfeiture proceedings
would continue.
  On September 15, 1992, Longenette filed suit to contest
the administrative forfeiture. On June 6, 1994, the District
Court dismissed Longenette’s claim based on lack of
jurisdiction and insufficient service of process. On
November 9, 1995, we reversed, finding jurisdiction on due
process grounds, and remanded for further consideration.
Longenette v. Krusing et al, No. 94-3321 (3d Cir. filed Aug.
25, 1995) (table). On September 26, 2000, after several
delays in securing counsel for Longenette, the District
Court granted the government’s motion for summary
judgment.2 Longenette filed a timely appeal.3

2. Longenette claims government authorities in West Virginia stole up to
$13,000 from him when seizing and judicially forfeiting his cash assets.
Since the United States District Court for the District of West Virginia
presided over those forfeiture proceedings, the District Court here
correctly held this issue was not properly before it.
3. We have jurisdiction to review administrative forfeitures for
constitutional infringements or procedural errors. United States v.
McGlory, 202 F.3d 664, 670 (3d Cir. 2000) (en banc) (“The federal courts
have universally upheld jurisdiction to review whether an administrative
forfeiture satisfied statutory and due process requirements.”); see also In
re One Jeep 1987 Wrangler Auto., 972 F.2d 472, 480 (2d Cir. 1992). We
have jurisdiction to consider the grant of summary judgment under 28
U.S.C. § 1291.
                                      4


                                     II.

                                      A.
  The Controlled Substances Act permits seizures and
subsequent forfeitures of motor vehicles used to facilitate
the   transportation,    sale,  receipt,   possession,    or
concealment of illegal drugs. 21 U.S.C. § 881(a). For seized
property valued less than $500,000, the Act and
accompanying regulations authorize civil forfeiture through
an administrative action rather than through a judicial
proceeding. Id.; see also 21 C.F.R. § 1316.77(b).
   An administrative forfeiture proceeding requires the FBI
or DEA, whichever is relevant, to notify any person with an
interest in the property. 21 C.F.R. § 1316.77. The
government accomplishes notification by sending a letter
via certified mail to the person’s last known address and by
advertising a notice of forfeiture in a local publication on
three separate occasions. See 19 U.S.C. § 1607(a); 21
C.F.R. § 1316.75(a). Any person claiming ownership has
twenty days in which to file a claim stating his interest
“with the appropriate customs officer.” 19 U.S.C. § 1608.
The individual also must provide a bond “to the United
States” to cover the costs and expenses of judicial
proceedings. Id. Individuals who cannot afford to post a
bond may file an in forma pauperis declaration. 19 C.F.R.
§ 162.47(e). Once an individual properly contests the
administrative forfeiture, the matter automatically is
forwarded to the courts for judicial proceedings.4 19 U.S.C.
§§ 1608, 1610; 21 C.F.R. §§ 1316.76(b), 1316.78.
  Here, the government initiated administrative forfeiture
proceedings against Longenette’s van on March 27, 1992.
Longenette filed his ownership claim on April 16 and
requested IFP status. By letter of April 17, the FBI

4. If an individual fails to contest an administrative forfeiture, he loses all
recourse for judicial review of the administrative proceeding’s merits. See
21 C.F.R. § 1316.77(b). His only opportunity to regain his property
interest rests on a due process or procedural claim or on filing a petition
for remission (pardon) with the administrative agency. 21 C.F.R.
§ 1316.80(a).
                              5


forwarded an IFP form to Longenette and provided a
“return” deadline of May 29, 1992. Longenette submitted
his completed IFP form to federal prison authorities on May
27, but the FBI did not receive the form until June 2. The
timeliness of Longenette’s submission, therefore, depends
on the application of the prison mailbox rule.

                             B.
    Nearly fifteen years ago, the Supreme Court promulgated
the prison mailbox rule. Houston v. Lack, 487 U.S. 266
(1988). Houston involved a pro se prisoner’s appeal of a
district court’s denial of his petition for a writ of habeas
corpus. The prisoner gave a notice of appeal to prison
authorities on the twenty-seventh day following the district
court’s judgment. But the district court did not receive the
filing until the thirty-first day, one day beyond the
permitted period. The United States Court of Appeals for
the Sixth Circuit dismissed the appeal because the prisoner
had filed it outside of the permitted thirty days.
  The Supreme Court reversed, crafting a prison mailbox
rule whereby the date on which a prisoner transmitted
documents to prison authorities would be considered the
actual filing date. The Court designed the rule specifically
for pro se prisoners. Id. at 275 (“[A] pro se prisoner has no
choice but to hand his notice over to prison authorities for
forwarding to the court clerk.”). The Court cited several
policy considerations for its decision: a pro se prisoner may
only communicate with the district court through prison
authorities; a tardy prisoner is not free to “walk” papers to
the district court; and the prevention of an intentional delay
in transmission by prison authorities. Id. at 274. The Court
also noted the “well-developed procedures” at federal
prisons that record the date and time of prisoner
submissions, making reference to prison mail logs a
“straightforward inquiry.” Id. at 275.
  The dissenting justices in Houston remarked that the
“decision obliterates the line between textual construction
and textual enactment.” Id. at 277 (Scalia, J., dissenting).
The dissent also noted that “the Court’s rule makes a good
deal of sense [but] it is not the rule that we have
                                   6


promulgated      through            congressionally         prescribed
procedures.” Id.

                                   C.
   Five years after Houston, the Supreme Court returned to
the prison mailbox rule in Fex v. Michigan, 507 U.S. 43
(1993). The State of Michigan sought to try a prisoner
detained by the State of Indiana. Under the Interstate
Agreement on Detainers, a prisoner may file a request for
final disposition in the prosecuting state.5 The Agreement
provides for dismissal with prejudice if the prosecuting
state does not bring the prisoner to trial within 180 days of
receiving such a request. Here, Michigan brought the
prisoner to trial 196 days after he delivered his request to
prison authorities, but only 177 days after the Michigan
prosecutor received the request.
   The Court held the prison mailbox rule did not protect
the detainee, focusing on the Agreement’s specific language:
“[the detainee] shall be brought to trial within one hundred
and eighty days after he shall have caused to be delivered
to the prosecuting officer . . . written notice of the place of
his imprisonment and his request for a final disposition
. . . .” Id. at 45 n.1 (quoting 18 U.S.C. app. § 2, Art. III(a)
(emphasis added)). The Court concluded this language
meant the 180-day period could not begin to run until the
prosecuting officer received the request for final disposition.
Because, under the statute, the time period specifically
commenced after delivery to the prosecuting officer, the
prison mailbox rule did not apply.
  The line between Houston and Fex is a narrow one. The
distinguishing factor appears to be the specificity of the
“service” language in the statute at issue. Before we
examine the statutory language of civil forfeitures, it is
instructive to look at three recent appellate decisions.

5. The Interstate Agreement on Detainers permits a prisoner to request
final disposition of any untried “indictment, information, or complaint.”
18 U.S.C. app. § 2.
                               7


                              D.
  In Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999),
a prisoner filed an administrative claim of excessive force
under the Federal Tort Claims Act. He delivered the claim
to prison authorities within the Drug Enforcement
Administration’s two-year regulatory period, but the DEA
did not receive the claim until one day beyond the
permitted time. The Court of Appeals for the Second Circuit
found no difference between the filing of a court action and
the filing of an administrative claim, so it applied the prison
mailbox rule to make the plaintiff ’s filing timely. Id. But the
court did explain that “Houston does not apply, of course,
when there is a specific statutory regime to the contrary.”
Id. at 152 n.1.
  The Courts of Appeals for the Fifth and Ninth Circuits
have rejected the prison mailbox rule’s application to
administrative proceedings when precluded by a specific
statutory or regulatory regime. Smith v. Conner, 250 F.3d
277 (5th Cir. 2001); Nigro v. Sullivan, 40 F.3d 990 (9th Cir.
1994). Nigro involved a pretrial detainee who tested positive
for illegal drug use. Following the Bureau of Prisons’
prescribed administrative remedies, the detainee filed his
appeal with the General Counsel’s Office. But that office did
not receive his appeal until thirty-one days after the initial
report, one day beyond the permitted period.
   The Ninth Circuit rejected Nigro’s appeal, finding the
prison mailbox rule did not apply where administrative
regulations defined the word “filed.” Id. at 994 (“An appeal
is ‘considered filed when the receipt is issued.’ ”) (quoting
28 C.F.R. § 542.14 (1993)). As the court expressed, “[w]e
cannot in the name of sympathy rewrite a clear procedural
rule.” Id. at 995.
   The Court of Appeals for the Fifth Circuit similarly
declined to apply Houston where the administrative
regulation was precisely written. In Smith, a pro se prisoner
failed to file a timely appeal of his deportation with the
Board of Immigration Appeals. 250 F.3d at 277. The
prisoner had submitted his appeal to prison authorities on
the final day of the permitted period, but the BIA did not
receive the appeal until three days later. The court focused
                                    8


on the relevant INS regulation, which provided that the date
of filing is the date the BIA receives the appeal. Id. at 279.
Based on this regulation, the court rejected application of
the prison mailbox rule. Id.
  All three appellate courts found no reason to apply the
prison mailbox rule in the face of a specific statutory or
regulatory regime. Houston’s narrow holding, therefore,
apparently was designed to protect pro se prisoners in the
absence of a clear statutory or regulatory scheme.6

                                    E.
  Our decision here turns on the proper construction of the
statute and regulations for administrative forfeitures. In
order to contest an administrative forfeiture, a person
claiming ownership must file a claim and give a bond to the
United States. The government acknowledges Longenette
properly filed his claim of ownership in his April 16 letter.
The only question is whether Longenette timely “gave” a
bond to the United States.
   We examine the statutory language for civil forfeitures to
determine whether there is a clear statutory scheme.7 The
government contends the statutory regime makes it
“indisputable that Longenette had to perform his two acts
[of filing a claim and posting bond] by May 29, 1992.”
Longenette did not meet his deadline, the government
argues, because he failed to give a bond to the United
States within the time period required by the civil forfeiture
statute. Longenette responds that the statutory scheme
does not clearly define the operative words “filing” a claim
and “giving” a bond to require actual receipt of those items.

6. Since the Supreme Court’s decision in Fex, we have recognized the
prison mailbox rule in other contexts. E.g., In re Flanagan, 999 F.2d
753, 758-59 (3d Cir. 1993) (applying the prison mailbox rule to the
bankruptcy litigation process).
7. The District Court found “the regulation at issue specifies that the
challenge to the forfeiture must be received by a date certain.” Longenette
v. Krusing et al, No. 92-312, at *12 (W.D. Pa. filed Sept. 26, 2000). But
the court did not cite the specific regulatory language upon which it
relied, nor did it focus on the “giving of the bond.”
                                    9


  Accordingly, we review the relevant federal law. Section
1608 of the Tariff Act of 1930 requires that:
     Any person claiming such vessel, vehicle, aircraft,
     merchandise, or baggage may at any time within
     twenty days from the date of the first publication of the
     notice of seizure file with the appropriate customs
     officer a claim stating his interest therein. Upon the
     filing of such claim, and the giving of a bond to the
     United States in the penal sum of $ 5,000 or 10
     percent of the value of the claimed property, whichever
     is lower, but not less than $ 250, with sureties to be
     approved by such customs officer, conditioned that in
     case of condemnation of the articles so claimed the
     obligor shall pay all the costs and expenses of the
     proceedings to obtain such condemnation, such
     customs officer shall transmit such claim and bond,
     with a duplicate list and description of the articles
     seized, to the United States attorney for the district in
     which seizure was made, who shall proceed to a
     condemnation of the merchandise or other property in
     the manner prescribed by law.
19 U.S.C. § 1608.
  Section 1609 provides:
     If no such claim is filed or bond given within the
     twenty days hereinbefore specified, the appropriate
     customs officer shall declare the vessel, vehicle,
     aircraft, merchandise, or baggage forfeited, and shall
     sell the same at public auction in the same manner as
     merchandise abandoned to the United States is sold or
     otherwise dispose of the same according to law, and
     shall deposit the proceeds of sale, after deducting the
     expenses described in section 613 [19 USCS § 1613],
     into the Customs Forfeiture Fund.
19 U.S.C. § 1609.8

8. See also 21 C.F.R. § 1316.77(b) (“For property seized by officers of the
Federal Bureau of Investigation, if the appraised value does not exceed
the jurisdictional limits in § 1316.75(a), and a claim and bond are not
filed within the 20 days hereinbefore mentioned, the FBI Property
Management Officer shall declare the property forfeited.”)
                              10


   Read together, §§ 1608 and 1609 require an individual to
file a claim and give a bond within twenty days of the
publication of notice. Notwithstanding this requirement, the
FBI extended the twenty day period here in its April 17
letter, providing Longenette a deadline of May 29. At issue
is whether Longenette met this revised deadline.
   The District Court found “the [prison mailbox] rule has
never been applied outside of court filings; that is, the
courts have never imposed the rule on the executive branch
as Plaintiff is suggesting that we do here.” Longenette, No.
92-312, at *12. But Houston and Fex direct us to look at
the statutory and regulatory regimes, not the branch of
government in which they originate, in deciding whether to
apply the rule. In Houston, the relevant statute provided
that “no appeal shall bring any judgment . . . before a court
of appeals for review unless notice of appeal is filed, within
thirty days after the entry of such judgment.” 28 U.S.C.
§ 2107. The statute in Houston did not define whether
“filed” meant actual receipt by the court. Because of this
ambiguity, the Supreme Court crafted the prison mailbox
rule.
   The cases that have eschewed application of the prison
mailbox rule involved statutory or regulatory schemes that
clearly required actual receipt by a specific date. In Fex, the
Interstate Agreement on Detainers incorporated language
that specifically started the relevant 180-day period after
the prosecuting officer received a prisoner’s request for final
disposition. 507 U.S. at 45. In Smith, the INS regulation
provided that the date of filing was the date the Board of
Immigration Appeals received the appeal. 250 F.3d at 278.
And in Nigro, the regulation provided that “an appeal is
considered filed when the receipt is issued.” 40 F.3d at 994.
   Here, there is no such conclusive language. Section 1608
provides that an administrative forfeiture proceeding
terminates, and is referred to the local United States
attorney for judicial forfeiture proceedings, “[u]pon the filing
of [a] claim, and the giving of a bond to the United States.”
19 U.S.C. § 1608. Section 1609 provides a clear deadline
that the claim be “filed” and the bond be “given” within
twenty days. As in Houston, neither the statutory nor
regulatory schemes define “filed” and “given” as requiring
                                   11


actual receipt.9 The circumstances of his situation required
Longenette to give his “bond” to prison authorities for
forwarding to the FBI customs officer. He gave the in forma
pauperis declaration to prison authorities on May 27, two
days in advance of the FBI’s deadline. Because neither the
statute nor the regulations require “actual receipt,” Houston
mandates the prison mailbox rule’s applicability. Therefore,
Longenette timely contested the administrative forfeiture.

                                  III.
  The question remains as to disposition of the forfeited
van, or the proceeds from its sale.10 The answer is not
immediately     apparent.    At    issue   is   whether   the
administrative forfeiture is void or voidable and whether the
statute of limitations bars a new proceeding.

                                   A.
   All of the appellate courts that have addressed similar
issues were faced with defective notices of forfeiture. Four
appellate courts — the Courts of Appeals for the Second,
Fifth, Ninth, and Tenth Circuits — have held that a
forfeiture conducted without adequate notice is void. Alli-
Balogun v. United States, 281 F.3d 362, 370-71 (2d Cir.
2002); Kadonsky v. United States, 216 F.3d 499, 506-07
(5th Cir. 2000); United States v. Marolf, 173 F.3d 1213,
1218-20 (9th Cir. 1999); United States v. Clymore, 164 F.3d
569, 574 (10th Cir. 1999). As the Fifth Circuit explained in
Kadonsky, “[t]he remedy for constitutionally insufficient
notice in forfeiture proceedings is to void and vacate the

9. Nor was this clear in the FBI’s correspondence to Longenette. The
FBI’s March 27 letter directed that Longenette “file a claim of ownership
and a bond . . . with the FBI” by May 12. On April 17, the FBI
acknowledged Longenette’s claim of ownership and forwarded him an IFP
declaration to complete. The letter directed Longenette to “[r]eturn this
declaration and [claim] of ownership to the FBI by May 29, 1992.” The
FBI seemed to use the words “give,” “file,” and “return” interchangeably.
10. At oral argument, we asked counsel what had become of the van.
Given the elapsed time, government counsel presumed the van had been
sold. For purposes of this opinion, we will continue to refer to the van
rather than the proceeds from its sale.
                             12


original proceeding, and [the statute of] limitations may bar
consideration of the government’s forfeiture claim on the
merits unless the government provides a rationale to
equitably toll or otherwise not apply the statute.” 216 F.3d
at 506-07.
   One appellate court — the Court of Appeals for the Sixth
Circuit — has interpreted insufficient notice as making
forfeiture proceedings voidable, not void. United States v.
Dusenbery, 201 F.3d 763, 768 (6th Cir. 2000), aff ’d on
other grounds, 534 U.S. 161 (2002). In a 2-1 decision, the
Sixth Circuit declared that “inadequate notices should be
treated as voidable, not void, and that the proper remedy is
simply to restore the right . . . to judicially contest the
forfeiture . . . . Thus, the Government is not required to
institute ‘new’ forfeiture proceedings and the applicable
statute of limitations, § 1621, therefore has no bearing.” Id.
  We have adopted the majority view when there has been
inadequate notice. In Gold Kist, Inc. v. Laurinburg Oil Co.,
756 F.2d 14, 19 (3d Cir. 1985), we declared that “[a] default
judgment entered when there has been no proper service of
complaint is, a fortiori, void, and should be set aside.” We
applied Gold Kist to civil forfeitures in United States v. One
Toshiba Color Television, 213 F.3d 147, 156 (3d Cir. 2000)
(en banc), holding that a prior forfeiture judgment issued
without proper notice to a potential claimant is void.
Because the administrative forfeiture lacked legal
foundation, the judgment was incurable. Id.; see also
Kadonsky, 216 F.3d at 506 (“[C]onstitutionally ineffective
notice renders forfeiture orders void because the court
lacked jurisdiction to enter them.”). Thus, we held that
where notice is improper, the administrative forfeiture is, a
fortiori, void, and should be set aside.
  Here, the government provided proper notice to
Longenette. The proceedings, therefore, were valid from
their inception. This distinction makes the administrative
forfeiture proceeding here voidable, rather than void. Once
notice was properly given to Longenette, the FBI validly
could proceed with the administrative proceeding.
Furthermore, the District Court subsequently had
jurisdiction to enter the judgment of forfeiture. The only
defect in this proceeding was the failure to apply the prison
                                     13


mailbox rule. Because jurisdiction was proper, the court’s
judgment is voidable, not void.
   If the administrative forfeiture is voidable, the proper
remedy is to vacate the forfeiture and restore the prior
situation. Once restored, the FBI would accept Longenette’s
IFP declaration in lieu of a bond, and the matter would be
referred to the local United States attorney for judicial
forfeiture. 19 U.S.C. § 1608; see Dusenbery, 201 F.3d at
766 (“A properly filed claim stops the administrative
forfeiture process and requires the seizing agency to refer
the matter to the United States Attorney to institute judicial
forfeiture proceedings.”); 21 C.F.R. §§ 1316.76(b), 1316.78.11
   Nevertheless, at issue is whether the statute of
limitations in 19 U.S.C. § 1621 bars the United States
Attorney from instituting judicial forfeiture proceedings. The
administrative forfeiture here occurred more than ten years
ago, and under the applicable statute of limitations, “[n]o
suit or action to recover any . . . forfeiture of property
accruing under the customs laws shall be instituted unless
such suit or action is commenced within five years after the
time when the alleged offense was discovered.” 19 U.S.C.
§ 1621. We have determined that administrative forfeitures
are “separate proceedings” from judicial forfeitures. United
States v. $184,505.51 in U.S. Currency, 72 F.3d 1160, 1164
(3d Cir. 1995). Because a judicial forfeiture would qualify
as a new proceeding, it would appear that the statute of
limitations, unless tolled, bars consideration of the
government’s forfeiture claim on the merits.12

11. In judicial forfeiture proceedings, the government must show
probable cause for the forfeiture, which shifts the burden to the claimant
to demonstrate by a preponderance of the evidence that the property is
his and not the proceeds of drug transactions. 19 U.S.C. § 1615. “The
claimant may meet his burden by showing that the property was not the
proceeds of illegal drug activities or that the claimant is an ‘innocent
owner’ and was unaware of the proceeds’ criminal connection.”
Dusenbery, 201 F.3d at 766.
12. Congress recently passed the Civil Administrative Forfeiture Reform
Act, P.L. 106-185, which applies to forfeitures commencing on or after
120 days from April 25, 2000. 18 U.S.C. § 983. Where a forfeiture is set
aside due to inadequate notice, the government may commence a new
forfeiture proceeding within a specified period of time. 18 U.S.C.
§ 983(e)(2). This statute does not operate retroactively so it is not directly
relevant here. United States v. One “Piper” Aztec, No. 02-1925 (3d Cir.
filed Mar. 5, 2003).
                             14


                             B.
   The relevant statute, 19 U.S.C. § 1621, requires the
government to institute forfeiture proceedings within five
years after discovery of the alleged offense. Since
administrative    and   judicial  actions   are   “separate
proceedings,” that can no longer happen here. The statute
does provide for express tolling of the limitations period
during “the time of the absence from the United States of
the person subject to the penalty or forfeiture, or of any
concealment or absence of the property.” 19 U.S.C.
§ 1621(2). There is no statutory exception to the statute of
limitations for the type of situation presented here. But
even so, under limited and specific circumstances, the
statute of limitations may be tolled based on equitable
principles. Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946).
   The Supreme Court has held that limitations periods are
subject to equitable tolling where tolling is not inconsistent
with the statute. United States v. Beggerly, 524 U.S. 38, 48
(1998). We recognize that we have “exercised caution in
using the equitable tolling doctrine.” Seitzinger v. Reading
Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). But
it is appropriate to apply the doctrine “where consistent
with congressional intent and called for by the facts of the
case.” Bowen v. City of New York, 476 U.S. 467, 479
(1986); cf. Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.
1998) (“The doctrine of equitable tolling preserves a
plaintiff ’s claims when strict application of the statute of
limitations would be inequitable.”).
   The Court of Appeals for the Fifth and Tenth Circuits
both allowed for the possibility of equitable tolling in civil
forfeiture cases, with the Fifth Circuit stating the
government may have had “a strong argument for equitable
tolling” if the court had reached that question. United
States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001);
Kadonsky, 216 F.3d at 507 & n.8; see also United States v.
$57,960.00 in U.S. Currency, 58 F. Supp.2d 660, 664
(D.S.C. 1999) (invoking the doctrine of equitable tolling
where the administrative forfeiture proceeding was voided).
The Kadonsky court noted the government’s good faith
efforts to give notice and the inequity inherent in the strict
                                    15


application of a statute of limitations where the seized
funds “were clearly the product of drug transactions.” 216
F.3d at 507 & n.8.
   Several similar factors weigh in favor of granting the
government equitable relief here. First, the government
acted in good faith. It did not seek to hide the van from
Longenette, nor did it try to withhold notice from him.
Furthermore, the government gave proper notice and even
extended Longenette’s response time to accommodate him.
The long delay in litigation was not the government’s fault;
if anything, Longenette’s erroneous framing of the facts in
his previous appearance before this court contributed to
the delay.13 The FBI’s only error here was failing to
recognize the prison mailbox rule’s applicability, certainly a
reasonable error in this matter of first impression.
  Second, the record includes evidence that the van
qualifies as § 881(a) property used in facilitating illicit drug
transactions. Third, the relevant statute of limitations
provision, 19 U.S.C. § 1621, provides for express tolling in
some circumstances but does not preclude equitable tolling.
In specific circumstances, congressional intent to permit
equitable tolling may be inferred where a statute provides
for express tolling in some instances and does not
otherwise preclude it. Bowen, 476 U.S. at 480 (“[Where
Congress] express[es] its clear intention to allow tolling in
some cases . . . , we conclude that application of a
traditional equitable tolling principle . . . is fully consistent
with the overall congressional purpose and is nowhere
eschewed by Congress.”) (internal quotations omitted).
  Finally, it bears noting that all of the forfeiture cases
addressed by our sister circuits involved due process claims
of constitutionally inadequate notice. But Houston’s prison
mailbox rule was not based on due process considerations,
and other courts specifically have found that the rule is not

13. In his original complaint, Longenette stated: “I was given only two
days notice that my Van [sic] and personal property were being subjected
to forfeitur[ ]e proceedings in May, 1992. . . . I contend that there was
never enough time to respond or prepare any pleadings to defend my
interests in the property.” The record reveals this is a clearly inaccurate
statement.
                                   16


based on constitutional requirements. E.g., Jenkins v.
Burtzloff, 69 F.3d 460, 461 (10th Cir. 1995) (“The rationale
of Houston was not constitutional or equitable in nature;
rather, it was based on an interpretation of the word ‘filed’
in the rule and statute governing the timeliness of notices
of appeal.”); Nigro, 40 F.3d at 995 & n.1 (finding that
Houston contains no “explicit reference” to due process).
Thus, Longenette’s due process rights will not be infringed
upon by equitably tolling the statute of limitations.14
   The government did not ask for equitable tolling of the
statute of limitations. Nonetheless, we may exercise
equitable relief at our discretion where the interests of
justice are served. United States v. Midgley, 142 F.3d 174,
179 (3d Cir. 1999). In Midgley, we held “a statute of
limitations should be tolled only in the rare situation where
equitable tolling is demanded by sound legal principles as
well as the interests of justice.” 142 F.3d at 179 (internal
quotations and citations omitted). We believe the facts here
present one of those rare situations.
   The administrative forfeiture proceeding is set aside
without prejudice to the government. The statute of
limitations under 19 U.S.C. § 1621 is equitably tolled. The
government has six months from this date in which to file
judicial forfeiture proceedings.

                                   IV.
  For the foregoing reasons, we will reverse the judgment of
the District Court and remand for proceedings consistent
with this opinion.

A True Copy:
        Teste:

                       Clerk of the United States Court of Appeals
                                   for the Third Circuit

14. As noted, Congress recently passed CAFRA, which included a
provision that alters the statute of limitations where a court later voids
the administrative forfeiture. 18 U.S.C. § 983(e)(2).
