dissenting:
I respectfully dissent because I conclude that the plaintiffs are foreclosed from pursuing this case due to their failure to pursue their statutory right to a judicial determination of their forfeiture claims. I would affirm.
The government seized the plaintiffs’ vehicles under 8 U.S.C. § 1324, on grounds that the vehicles had been used to transport unauthorized aliens into the United States. Section 1324 authorizes such seizures if the government has probable cause to believe that the vehicle is being used in a violation of the statute.1 As with the federal drug forfeiture law2 at issue in certain cases discussed below, section 1324 provides that “the customs laws ... shall apply to seizures and forfeitures incurred” under the statute.3
Under the customs laws, if the property in issue is worth $500,000 or less, the government must give notice of the seizure of property to those who appear to have an interest in the property, and the owner of the property may compel a judicial forfeiture proceeding by filing a claim and posting a bond.4 The property is automatically forfeited unless this procedure is followed.5
Consistent with the customs laws, federal regulations require the INS to give notice of a seizure of property to the owner.6 The owner may compel a judicial forfeiture proceeding by filing a claim and posting a bond.7 Failure to pursue this judicial remedy entitles the INS to declare the property forfeited,8 subject to the administrative remedies of remission and mitigation,9 as described by the majority. These regulations were promulgated under congressional authority.10
All ten plaintiffs were notified in writing of their right to commence a judicial forfeiture proceeding to challenge the forfeiture of their automobiles. None of them pursued this option. Most sought recovery of their vehicles through an informal administrative process set out by regulation,11 which requires that the owner “shall be informed by the right to request a personal interview with an immigration officer and to present evidence to establish” that the vehicle was not subject to forfeiture or seizure, or that the owner was not legally responsible for the illegal use of the vehicle.
Plaintiffs do not dispute that they received the form notice of forfeiture from the INS. I would hold that this notice, consistent with due process, fully apprised them of their *1301right to a judicial determination of the forfeiture matter by filing a claim and bond. The notice states that “the conveyance identified above was seized pursuant to 8 U.S.C. § 1324(b), which provides that any conveyance which has been used or is being used in violation of 8 U.S.C. § 1324(a) shall be seized and is subject to forfeiture. The above identified conveyance is subject to forfeiture.” Copies of the statute and relevant regulations are attached. The notice further explains the right to judicial redress, the bond requirement, the time in which to file a claim, the right to request a waiver of the bond requirement, and the allegations that must be set forth in the claim. The notice states that “[t]he filing of a petition for other relief does not extend the time for filing a claim and bond” for judicial relief. The notice letter and attached regulations do not state or imply that, by initially seeking a personal interview or other administrative relief, the owner is foreclosed from seeking the judicial relief described in the notice.
Because plaintiffs received adequate notice of their right to seek judicial redress pursuant to the statutory scheme, and failed to avail themselves of that option, I would hold that the suit was properly dismissed. Numerous courts have reached the same conclusion.
In Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976), the plaintiffs vehicle was seized by customs agents at the Canadian border because it contained a small quantity of hashish.12 The plaintiff challenged the constitutionality of the seizure in a federal district court suit. We stated that plaintiffs “failure timely to post the bond after receiving valid notice of the proceedings would, under the statutory scheme, stand as a waiver of his opportunity for a hearing, thus permitting [the government] to proceed with the summary forfeiture and thereby disposing of the case in its entirety.” 13 We held that the case could proceed because the plaintiff argued he was unable to post the required bond, and the statutory bond requirement cannot constitutionally be applied to those indigents unable to post it.14 In our case there is now a procedure for waiver of the bond requirement for indigents,15 and plaintiffs received notice of the procedure in the form notice they all received. None of the plaintiffs alleged indigent status. I would hold, under Wiren, that plaintiffs waived their right to a judicial determination of their claims relating to the forfeitures.
In Marshall Leasing, Inc. v. United States, 893 F.2d 1096 (9th Cir.1990), the plaintiff challenged the forfeiture of a vehicle seized by the Drug Enforcement Administration (DEA). We rejected the argument that the district court did not have jurisdiction to hear plaintiffs claims due to his failure to post a bond and obtain judicial forfeiture under 19 U.S.C. § 1608. Citing Wiren, we held that certain claims could be brought because the plaintiff claimed that he “did not receive constitutionally adequate notice of the availability of judicial forfeiture____”16 I read Marshall Leasing to hold, by negative implication, that where adequate notice of the right to judicial forfeiture is given the district court lacks jurisdiction to proceed to claims advanced by these plaintiffs.
Other jurisdictions have reached the same conclusion. In Willis v. United States, 787 F.2d 1089 (7th Cir.1986), the court held that where a plaintiff received notice of his right to file a claim and bond pursuant to the customs laws and failed to do so, he waived his right to later complain in a federal suit that his vehicle was seized in violation of his constitutional rights.17 In United States v. Woodall, 12 F.3d 791 (8th Cir.1993), the plaintiff claimed the DEA had seized his property in violation of his due process rights, and lacked probable cause to seize the property. The court held that the district court could consider whether the plaintiff had *1302received adequate notice of the forfeiture, but that if adequate notice was established, the plaintiff waived his other'claims by failing to file a timely claim and bond under 19 U.S.C. § 1608.18
In Litzenberger v. United States, 89 F.3d 818 (Fed.Cir.1996), the plaintiff brought suit alleging that the forfeiture of his vehicle violated his Fifth and Eighth Amendment rights. The court held that, so long as the plaintiff received adequate notice of his right to have the forfeiture proceedings in a judicial forum under 19 U.S.C. § 1608, the failure to pursue this statutory option constituted a waiver of the plaintiff’s opportunity to assert his constitutional claims in federal court.19 In Linarez v. United States Dep’t of Justice, 2 F.3d 208 (7th Cir.1993), the DEA seized cash from the plaintiff. He received notice of his right to file a claim and post a bond under the customs laws and thereby institute federal judicial forfeiture proceedings. Plaintiff did not avail himself of this procedure, and instead brought a federal district court action claiming that the seizure violated his Fourth Amendment rights. The court held that the district court did not have subject matter jurisdiction:
[W]e are convinced that Congress has precluded the possibility of concurrent jurisdiction over civil forfeitures in a district court and a federal administrative agency____ The district court remains without jurisdiction over the forfeiture unless an interested party files a claim of interest and posts a bond with the agency within twenty days from the date of the first publication of the notice of seizure pursuant to 19 U.S.C. § 1608 and 21 C.F.R. § 1316.76 (1992). If the claim is not filed and the bond not posted, the forfeiture process continues administratively, without judicial intervention.20
In Sarit v. DEA, 987 F.2d 10 (1st Cir. 1993), the DEA seized cash from the plaintiffs’ residence. The plaintiffs received notice of their right to initiate statutory judicial foreclosure proceedings but did not pursue this option. Instead they filed a civil rights suit in federal district court claiming violation of their constitutional rights. The court noted that the suit was one against the United States, and only an express waiver of sovereign immunity will give the court jurisdiction to hear such a claim.21 It recognized that sovereign immunity has been waived for certain forms of equitable relief under the Administrative Procedure Act (APA), but that there is no waiver under the Act where “statutes preclude judicial review.”22 While recognizing that the district court had jurisdiction to decide the adequacy of notice, the court held that once such notice was established, the suit was properly dismissed, agreeing with the district court that “plaintiffs had had the means available under the forfeiture statute to take the case to a judicial forum, and that they failed to do so.”23 The court found that the forfeiture statute precluded review under the APA.
Whether couched in terms of waiver, lack of jurisdiction, or sovereign immunity, I agree with the reasoning of the above authorities, and would hold that the plaintiffs’ claims were properly dismissed. To hold otherwise allows plaintiffs to circumvent the congressional scheme for bringing such claims before a federal court, and is inconsistent with the federal government’s limited waiver of sovereign immunity as to such claims.
Because of the adequacy of the notice and the waiver by the plaintiffs, I do not reach the discussion of the constitutional defects. However, if the majority is addressing facial defects of the statute, the writing is unconvincing to me. If the majority is addressing improprieties suffered by the plaintiffs at the hands of customs officials, this is not the proper forum for that consideration and *1303plaintiffs have waived their opportunity for judicial review.
. Id. § 1324(b)(2).
. 21 U.S.C. § 881(d).
. 8 U.S.C. § 1324(b)(3).
. 19 U.S.C. § 1607-08.
. Id. § 1609.
. 8 C.F.R. § 274.8.
. Id. §§ 274.10, 274.12.
. Id. § 274.11.
. M§§ 274.15, 274.16.
. The Attorney General is authorized by statute to "establish such regulations ... as he deems necessary for carrying out his authority under the provision of this chapter.” 8 U.S.C. § 1103(a)(3).
. 8 C.F.R. § 274.5(C).
. As explained above, both the drug laws and the INS forfeiture laws incorporate the federal customs laws codified in Title 19 of the United States Code.
. Id. at 763.
.Id. at 763-64.
. 8 C.F.R. § 274.10(b).
. Id. at 1103.
. Id. at 1093-94.
. Id. at 794-95.
. Id. at 821.
. Id. at 211 (emphasis in original).
. Id. at 16. In our suit as well, the claims are asserted against the United States. The only individual defendant, the regional INS commissioner, is sued in his official capacity only.
. 5 U.S.C. § 701(a)(1).
. Id. at 17.