Clymore v. United States

Revised August 31, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 99-50860

_____________________

CRAIG CLYMORE, AKA CLIFF G. WILSON
Petitioner-Appellant

versus

UNITED STATES OF AMERICA

Respondent-Appellee

_____________________

Appeal from the United States District Court
for the Western District of Texas
_____________________
July 18, 2000

Before WIENER and STEWART, Circuit Judges, and ROSENTHAL, District
Judge1

WIENER, Circuit Judge:

Plaintiff-appellant Craig Clymore challenges the district

court’s conclusion that his action to recover property that was

administratively forfeited to the United States Customs Service is

time-barred. We hold that in this case (1) the statute of

limitations applicable in suits against the United States should

have been equitably tolled and (2) the doctrine of laches is not

applicable. Consequently, we reverse the judgment of the district

1
District Judge of the Southern District of Texas, sitting by
designation.
court and remand to that court for a judicial forfeiture hearing.

I.

FACTS AND PROCEEDINGS

Clymore was arrested in 1991 and pleaded guilty in the United

States District Court for the District of New Mexico (“D.N.M.”) to

conspiracy to possess marijuana with the intent to distribute. In

1992, while Clymore was incarcerated, his pickup truck was seized

in Austin, Texas by the United States Customs Service.

Subsequently, the truck was administratively forfeited to the

Customs Service and sold for $1,675. In 1995, approximately three

years after the forfeiture, the Customs Service destroyed its

forfeiture file.

In 1996, Clymore initiated an action in the D.N.M. seeking the

return of numerous items of property, including the truck.

Clymore’s motion asserted that he had not been served written

notice of the forfeiture, as is required.2 Clymore commenced this

action approximately four years after the truck had been seized and

forfeited, well within the six-year statute of limitations

applicable to suits against the United States. The D.N.M.

concluded that Clymore had filed in the wrong venue and it declined

2
See 19 U.S.C. §1607(a). This section requires that written
notice of seizure be served on “each party who appears to have an
interest in the seized article.” A Customs Service Report of
Investigation appended to Clymore’s motion confirms that the
Customs Service knew that the truck in question belonged to
Clymore.

2
to exercise ancillary jurisdiction over his claims, dismissing them

instead with prejudice. Clymore appealed to the Tenth Circuit

which, with respect to the truck, affirmed the district court’s

judgment that Clymore should have brought his claim in the district

where the truck had been seized —— the Western District of Texas

(“W.D. Tex.”) —— not in the district where his criminal case had

been prosecuted (the D.N.M.). The Tenth Circuit remanded, however,

with instructions that the district court dismiss Clymore’s claim

without prejudice so that Clymore could re-file in the W.D. Tex.3

The Tenth Circuit’s decision was handed down in January, 1999,

more than six years after Clymore’s truck had been seized and

administratively forfeited, after the limitations period had run.

Clymore nevertheless promptly re-filed in the W.D. Tex. The case

was referred to a magistrate judge, who issued a report and

recommendation that Clymore’s motion for the return of property be

denied as time barred or, in the alternative, under the equitable

doctrine of laches. The district court dismissed Clymore’s motion

for the reasons set forth in the magistrate judge’s report, and

Clymore timely appealed.

Clymore styled his claim as one invoking Fed. R. Crim. P.

41(e), but as the criminal proceeding against him had already

concluded when he brought this action, it should have been brought

3
See Clymore v. United States, 164 F.3d 569 (1999).

3
as a civil action for the return of property.4 This Circuit and

others have held, however, that in such circumstances it is

appropriate to treat a pro se petition as one seeking the

appropriate remedy.5 We therefore treat Clymore’s Rule 41(e)

motion as a civil action under 28 U.S.C. §1331, seeking the return

of property,6 and treat the district court’s denial of that motion

as the grant of summary judgment in favor of the government.

II.

STATUTE OF LIMITATIONS

We review de novo the district court’s ruling that the statute

of limitations has run.7 The parties agree that in civil actions

the statute of limitation for the return of property is supplied by

28 U.S.C. §2401(a),8 which states that “every civil action

4
See United States v. Robinson, 78 F.3d 172, 174 (5th Cir.
1996); United States v. Giraldo, 45 F.3d 509, 510-11 (1st Cir.
1995); Onwubiko v. United States, 969 F.3d 1392, 1397 (2d Cir.
1992).
5
See supra n.4.
6
See Pena v. United States, 122 F.3d 3, 4 n.3 (5th Cir. 1997)
(“A suit under §1331 invokes the general equity jurisdiction of the
federal courts. The jurisdiction to order suppression or return
exists not by virtue of any statute but rather derives from the
inherent authority of the court over those who are its officers.”
(citations and alterations omitted)).
7
See Hinsley v. Boudloche (In re Hinsley), 201 F.3d 638, 644
(5th Cir. 2000).
8
See Polanco v. Drug Enforcement Admin., 158 F.3d 647, 652-54
(2d Cir. 1997) (holding that a civil action seeking to remedy a
procedurally deficient forfeiture is governed by the six year
limitations period of §2401(a)); Boero v. Drug Enforcement Admin.,
111 F.3d 301, 305 n.5 (2d. Cir. 1997) (same).

4
commenced against the United States shall be barred unless the

complaint is filed within six years after the right of action first

accrues.”

The district court determined that the right of action first

accrued in Clymore’s favor on March 13, 1992, the date his property

was seized. This conclusion is contrary to recent decisions of the

Second Circuit which hold that, at the earliest, a cause of action

accrues in favor of one seeking the return of property alleged to

have been forfeited without sufficient notice on the date that

administrative forfeiture proceedings are complete, rather than on

the date of the seizure.9 Nevertheless, because there is no

dispute that the instant forfeiture proceeding was completed only

one month after the seizure, and because a mere one-month delay in

the accrual of Clymore’s action (and therefore in the starting

point for the limitations period) is alone insufficient to bring

this action within the statute of limitations, we shall assume

arguendo that the district court correctly concluded that the

limitations period commenced on March 13, 1992, the date on which

Clymore’s property was seized.

Clymore concedes, as he must, that the instant proceeding was

initiated more than seven years after his truck was (1) seized and

(2) forfeited. He contends nevertheless that the statute of

limitations should be equitably tolled for the period of

9
See Adames v. United States, 171 F.3d 728, 731 (2d. Cir.
1999); Polanco, 158 F.3d at 654-55.

5
approximately two years and seven months that his claim was pending

in the D.N.M. and in the Tenth Circuit. The government does not

argue that equitable tolling is unavailable under the statute of

limitations applicable to this case, only that equitable tolling

should not be applied on these facts. But, as we have yet to rule

on whether equitable tolling is available in suits governed by the

limitations period in 28 U.S.C. §2401(a), we address that threshold

issue sua sponte.

In Irwin v. Department of Veterans Affairs the Supreme Court

sought to eliminate confusion that had resulted from its past

pattern of statute-by-statute ad hoc decisions regarding

application of equitable tolling to suits against the government.10

The Court adopted “a more general rule” decreeing that “the same

rebuttable presumption of equitable tolling applicable to suits

against private defendants should also apply to suits against the

United States.”11 Subsequently, in United States v. Brockamp,12 the

Court encapsulated the general rule set forth in Irwin in the

following negatively-phrased question: “Is there good reason to

believe that Congress did not want the equitable tolling doctrine

to apply?”13 If, for a given statute of limitations, that question

10
498 U.S. 89 (1990).
11
Id. at 95-96.
12
519 U.S. 347 (1997).
13
Id. at 350 (emphasis added).

6
is answered in the negative, equitable tolling is potentially

applicable.

In Perez v. United States we examined whether, in light of

Irwin and Brockamp, the limitations period applicable to the

Federal Tort Claims Act14 is subject to equitable tolling and

concluded that it is.15 The limitations period applicable to this

case is contained in subsection (a) of that same section. The two

reasons cited in Perez in support of the conclusion that §2401(b)

is subject to equitable tolling —— (1) §2401(b) is a “garden

variety” limitations statute, not a highly-technical one like that

found in I.R.C. §6511, and (2) allowing equitable tolling would not

create an administrative nightmare —— apply with equal force to

§2401(a). We hold, therefore, that the doctrine of equitable

tolling has potential application in suits, like this one, that are

governed by the statute of limitations codified at 28 U.S.C.

§2401(a).16 We now turn to the question whether equitable tolling

applies under the facts of this case.

Equitable tolling is available when, inter alia, “the claimant

has actively pursued his judicial remedies by filing a defective

14
28 U.S.C. §2401(b).
15
167 F.3d 913, 917 (1999).
16
Cf. Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765 (9th
Cir. 1997) (holding that §2401(a) is not jurisdictional and
therefore subject to waiver).

7
pleading during the statutory period.”17 Clymore urges that he

actively pursued his judicial remedies —— and therefore tolled the

statute of limitations —— by timely filing in the D.N.M. a Rule

41(e) motion seeking the return of his property. The government

counters with the two arguments: (1) Clymore should have been “well

aware” of where to file his motion because the proper venue is

spelled-out in Fed. R. Crim. P. 41(e); (2) after the D.N.M.

instructed Clymore where to file his motion, he “chose to wait

until the Tenth Circuit disposed of his appeal” rather than

abandoning his case in the D.N.M. and re-filing in the W.D. Tex.

We reject both of these arguments.

Rule 41(e) provides:

(e) Motion for Return of Property. A person [seeking the
return of seized property for enumerated reasons] 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. . . . (Emphasis added.)

As the Tenth Circuit explained in Clymore’s appeal to that court,

“[t]here is a split in the circuits regarding whether Rule 41(e)

motions must be brought in the district where the property was

seized or in the district where the criminal proceedings

occurred.”18 The Second Circuit has held that the district court

that had presided over the underlying criminal proceeding had

17
Perez, 167 F.3d at 917 (quoting Irwin, 498 U.S. at 96).
18
Clymore v. United States, 164 F.3d 569, 574-75 (10th Cir.
1999).

8
jurisdiction over a Rule 41(e) motion, even after the close of the

criminal proceeding and even though the property had been seized in

a different district.19 The Eighth Circuit has gone even further

by holding in at least one case that the district that had presided

over the criminal proceeding is the only proper district in which

to bring a Rule 41(e) motion, implying that the district of seizure

would not have jurisdiction.20 In contrast to the Second and Eighth

Circuits, the Fourth Circuit has held that the only proper venue

for a motion seeking the return of property after the close of the

criminal proceeding is district where the property was seized.21

Before Clymore’s appeal to the Tenth Circuit, the issue was

open in both the Tenth and Fifth Circuits. In Clymore, addressing

the issue for the first time, the Tenth Circuit held that “where

the underlying criminal proceedings have concluded and the trial

court no longer exercises control over the subject property, the

proper venue for a Rule 41(e) motion is the district where the

property was seized.”22

Given the unsettled state of the law at the time that Clymore

initiated his motion, even an experienced and able attorney would

19
United States v. Giovanelli, 988 F.2d 116, 118 (2d. Cir.
1993).
20
Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995). But
see United States v. Garcia, 65 F.3d 17, 20 (4th Cir. 1995)
(rejecting Thompson).
21
Garcia, 65 F.3d at 20-21.
22
Clymore, 164 F.3d at 574-75.

9
have had to guess as to the proper venue in which to bring the

claim. We therefore reject the government’s assertion that Clymore

should have been “well aware” that the proper venue for his motion

was the W.D. Tex., not the D.N.M.

Neither can we accept the government’s contention that after

the D.N.M. held that it lacked jurisdiction over Clymore’s claim ——

at which time the statute of limitations had not yet run —— Clymore

should have foregone his appeal to the Tenth Circuit, abandoned his

claim in the D.N.M., and timely re-filed in the W.D. Tex. As the

D.N.M. had dismissed Clymore’s claim with prejudice,23 it was only

after the Tenth Circuit’s instructions on remand were carried out

by the D.N.M.’s dismissal of Clymore’s claim without prejudice that

Clymore could re-file in the W.D. Tex. Had he filed a motion

before that time, his claim would have been barred by res judicata.

“Statutes of limitations are primarily designed to assure

fairness to defendants,”24 and to

promote justice by preventing surprises through the
revival of claims that have been allowed to slumber until
evidence is lost, memories have faded, and witnesses have
disappeared. The theory is that even if one has a just
claim it is unjust not to put the adversary on notice to
defend within the period of limitations and that the
right to be free of stale claims in time comes to prevail
over the right to prosecute them.25

23
Id. at 575.
24
Burnett v. New York Central Railroad Co., 380 U.S. 424, 428
(1965).
25
Id. (quoting Order of Railrod Telegraphers v. Railway Express
Agency, Inc., 321 U.S. 324, 348-49 (1944)).

10
It has not been argued, and cannot seriously be, that the

government was unfairly surprised when Clymore initiated the

instant proceeding. Indeed, the government was aware that Clymore

was seeking the return of his property well within the limitations

period when it received service of the motion that Clymore filed in

the D.N.M. Moreover, by providing for transfer of venue Congress

itself has acknowledged the injustice that occurs when a claim

timely filed in the wrong venue is dismissed after the statute of

limitations has run.26 Had the D.N.M. transferred Clymore’s motion

(rather than dismissing it with prejudice), or had the Tenth

Circuit instructed that court on remand to transfer it to the W.D.

Tex., the “time-consuming and justice-defeating technicalities”27

that all parties and the courts have encountered for the bulk of

this appeal could have been avoided. So too can they be limited

henceforth by application of the doctrine of equitable tolling.

In sum, Clymore timely filed his motion in the wrong venue and

then promptly re-filed it in the right venue after the statute of

limitations had run. Given (1) the uncertainty of the law

regarding the proper venue in which to file and (2) the

government’s awareness, resulting from service of Clymore’s motion

within the limitations period, that Clymore was seeking the return

26
Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962); 15 Wright,
Miller & Cooper, Federal Practice and Procedure §3827 (2d ed.
1986).
27
Goldlawr, Inc., 369 U.S. at 916.

11
of his truck, the limitations period should be equitably tolled.

We hold that the running of the statute of limitations against

Clymore was tolled for the period during which his claim was

pending before the D.N.M. and the Tenth Circuit, in consequence of

which Clymore’s motion was timely.

III.

LACHES

To establish that Clymore’s cause of action is barred by

laches the government must show the occurrence of (1) a delay (2)

that was not excusable (3) which caused the government undue

prejudice.28 The district court’s findings of delay,

inexcusability, and prejudice are findings of fact reviewed for

clear error.29

Even if we assume without deciding that Clymore’s delay was

not excusable, we conclude that the government has failed to show

that it suffered undue prejudice from Clymore’s delay in bringing

this action. The government argues that it was prejudiced by

Clymore’s delay because “the United States Customs Service destroys

its completed forfeiture cases three years after the file has been

closed pursuant to United States Customs Service Interim Records

Handbook.” As a result of this administrative policy, purely

28
See Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir. 1985);
Baylor University Medical Center v. Heckler, 758 F.2d 1052, 1057
(5th Cir. 1985).
29
See Fed. R. Civ. P. 52(a); Geyen, 775 F.2d at 1310.

12
volitional with the government, the file in Clymore’s case was

destroyed three years after the forfeiture, but three years before

the statute of limitations had run against Clymore. By its

unilateral decision to destroy the file, the government prevented

itself from offering any evidence that, prior to the forfeiture,

Clymore received the notice to which he was entitled. The only

record evidence regarding notice is Clymore’s affidavit, in which

he swears that he received none.

The government advances its conclusion that Clymore’s delay

thus caused it prejudice. Clymore counters that any prejudice

resulting from the destruction of the forfeiture file in this case

was of the government’s own making, and we agree. It was the

government’s own policy —— under which it destroys files that

pertain to as yet un-barred forfeiture proceedings —— that caused

any prejudice, not the timing of Clymore’s motion. If we held in

the government’s favor on this point, we would be permitting the

Customs Service —— an administrative agency —— to modify an act of

Congress —— the statute of limitations —— by the agency’s internal

regulations. The Customs Service cannot shrink a congressionally

enacted statute of limitations, under the guise of laches, by

adopting a policy that precludes the agency from substantiating

that it complied with the formal requirements of forfeiture, when

the plaintiff challenging the forfeiture initiates proceedings

within the limitations period. As the Ninth Circuit held on

similar facts, “it was the government’s own carelessness,” not the

13
timing of the plaintiff’s Rule 41(e) motion, that caused

prejudice.30

The government argues in the alternative that it was

prejudiced by Clymore’s delay because the remedy he seeks —— the

return of his property —— is impossible, the property having

already been sold. This argument is unavailing as Clymore has

persistently stated that he would accept damages in lieu of the

truck.31

We discern nothing that supports the district court’s

conclusion that Clymore prejudiced the government by the timing of

bringing this action. We conclude, therefore, that the district

court committed clear error when it found otherwise. Absent a

showing of prejudice, laches does not apply.

IV.

REMEDY

The government is required by statute to initiate forfeiture

proceedings within five years after it learns of the offense giving

rise to the forfeiture.32 In this case, it is undisputed that more

than five years have passed since the government learned that

Clymore’s truck was being used to smuggle marijuana. Therefore,

30
United States v. Marolf, 173 F.3d 1213, 1218-19 (9th Cir.
1999).
31
Cf. Pena v. United States, 122 F.3d 3, 4 n.2 (5th Cir. 1997)
(citing cases to the effect that when forfeited property is
destroyed, movant can still seek damages).
32
19 U.S.C. §1621.

14
unless the statute of limitations running against the government

has been tolled for some reason, the government cannot now cause

Clymore’s property to be forfeited.

The Circuits are split on the proper remedy when there are

allegations that an administrative forfeiture was effected without

notice to the property owner, and the challenge to the forfeiture

proceeding is brought more than five years after the government

learns of the offense. Both the Ninth and Tenth Circuits have held

that the inadequately-noticed forfeiture is void —— that is, the

forfeiture should be vacated and the statute of limitations should

be allowed to run against the government, subject to any

affirmative defenses available to the government against the

running of the statute of limitations (e.g., laches, equitable

tolling).33 The Ninth Circuit reasoned that it is “particularly

weary of civil forfeiture statutes, for they impose ‘quasi-

criminal’ penalties without affording property owners all of the

procedural protections afforded criminal defendants.”34 In a

similar vein, the Tenth circuit reasoned that “[d]ue process

protections ought to be diligently enforced, and by no means

relaxed, where a party seeks the disfavored remedy of forfeiture.”35

33
See United States v. Marolf, 173 F.3d 1213, 1216-18 (9th Cir.
1999); Clymore v. United States, 164 F.3d 569, 572-74 (10th Cir.
1999).
34
Marolf, 173 F.3d at 1217 (quoting United States v.
$191,910.00 in U.S. Currency, 16 F.3d 1051, 1068 (9th Cir. 1994)).
35
Clymore, 164 F.3d at 574.

15
 The Second and Sixth Circuits have held, less stringently,

that a deficient forfeiture is merely voidable —— in other words,

that the proper remedy is to restore the plaintiff’s right to

challenge the forfeiture in the district court. In United States

v. Dusenbery,36 the Sixth Circuit explained that treating the prior

forfeiture proceeding as voidable, not void, simply “restore[s] the

right which a timely Rule 41(e) notice would have conferred on the

[property owner],” i.e., “the right to judicially contest the

forfeiture and to put the Government to its proofs under a probable

cause standard.”37 We agree with this rationale.38 We are persuaded

that the government is not initiating a “new” forfeiture proceeding

and that the five-year statute of limitations39 is no impediment to

36
201 F.3d 763 (6th Cir. 1999).
37
Id. at 768.
38
We do not agree with all of the reasoning underlying
Dusenbery, however. There the court suggested that treating a
defective forfeiture as void would “encourage property owners to
sit on their Rule 41(e) motions until the five-year statute of
limitations has run.” Id. Either by design or by accident,
Congress has given the property owner a longer period within which
to sue for the return of property (six years) than it has given the
government to commence forfeiture proceedings (five years). 28
U.S.C. §2401(a); 19 U.S.C. §1621. As a result, if the government
has not initiated some proceeding within five years, the property
owner could turn that inaction to his advantage. But there is
nothing inherently wrong with suing toward the end rather than the
beginning of a given limitations period: Other things being equal,
the last day is as good as the first. A more sensible scheme would
assign congruent limitations periods to both parties and thereby
eliminate the incentive to delay alluded to by the Deusenbery
court, but we perceive that as a decision for Congress, not the
courts.
39
19 U.S.C. §1621.

16
a judicial forfeiture hearing at this juncture. Under our ruling

today, Clymore will get the very same hearing he would have gotten

if, following the seizure of his property, the proper procedure had

been invoked, i.e., if (1) the government had notified him of the

forfeiture,40 (2) he had properly filed a claim and a cost bond with

the government and thereby thwarted the administrative forfeiture,41

and (3) the government had been forced to initiate a judicial

forfeiture proceeding.42 And, as the prior (albeit notice-

defective) administrative forfeiture was an “action . . . commenced

[by the government] within five years after the alleged offense was

discovered,”43 it tolled the statute of limitations that otherwise

would have run against the government. In other words, we view

this as a continuation of the administrative process that was

initiated timely by the government.44 Accordingly, on remand the

district court is instructed to conduct a forfeiture hearing, in

accordance with the burden-shifting analysis applicable to such

40
Again, the government might have notified him, but as it
destroyed its record it could not prove as much. We therefore must
assume that Clymore received no notice.
41
19 U.S.C. §1608.
42
19 U.S.C. §§1608, 1610; 21 C.F.R. §§1316.76, 1316.78.
43
19 U.S.C. §1621.
44
See Dusenbery, 201 F.3d at 768 (“the Government is not
required to institute ‘new’ forfeiture proceedings, and the
applicable statute of limitations, §1621, therefore has no
bearing.”).

17
proceedings.45

V.

CONCLUSION

For the forgoing reasons the judgment of the district court is

reversed and the case remanded for further proceedings consistent

with this opinion.

REVERSED and REMANDED.

45
See 19 U.S.C. §1615; Dusenbery, 201 F.3d at 766.

18