United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 1999 Decided January 18, 2000
No. 98-5082
Ramon Lopez,
Appellant
v.
United States of America, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv01972)
Charles B. Klein, appointed by the court, argued the cause
as amicus curiae for appellant. With him on the briefs was
Eric W. Bloom.
David L. Smith, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Wilma A. Lewis,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-
ney.
Before: Ginsburg, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Ramon Lopez, an inmate in a
federal prison, brought suit against the Drug Enforcement
Administration, alleging that the agency failed to make an
adequate effort to notify him of a forfeiture proceeding it had
initiated against property he claims to own. The DEA sent
two notices to Mr. Lopez--one to his home and one to a
prison address--both of which were returned to the agency.
One year later Mr. Lopez learned of the forfeiture proceeding
through his wife, who had been separately notified by the
DEA.
After the DEA denied as untimely his petition for remis-
sion or mitigation of the forfeiture, Mr. Lopez filed a com-
plaint in the district court alleging the DEA denied him due
process of law by failing to notify him of the forfeiture
proceeding. The district court granted summary judgment in
favor of the DEA, concluding that the agency had met its
statutory and constitutional duty to notify Mr. Lopez of the
forfeiture by sending notices to him and to his wife. Because
the DEA, when the notices sent to Mr. Lopez were returned,
made no further effort to notify him although it knew he was
in prison, and because notice to his wife is not, on the facts of
this case, notice to him, we reverse the judgment of the
district court and remand this matter for further proceedings.
I. Background
While Ramon Lopez was in the Martin County, Florida jail
on a narcotics trafficking charge, he and his wife Alix Coba*
__________
* Amicus curiae appointed by this Court to represent Mr. Lopez
on appeal points out that the couple actually were not married, nor
could they have been considered married at common law because
Florida does not recognize a common law marriage entered into
after January 1, 1968. See Fla. Stat. ch. 741.211. Mr. Lopez,
however, refers to Ms. Coba as his wife, and both the district court
and the Government considered the couple to be married. For the
purposes of this appeal, therefore, we too treat Mr. Lopez and Ms.
Coba as husband and wife.
agreed to pay $50,000 to an official who would let Mr. Lopez
post bond on a lesser charge. According to the Government,
the payee was an "undercover law enforcement agent posing
as a Deputy U.S. Marshal." The couple were convicted under
federal law of attempted escape, and the DEA seized the
$50,000, claiming it had reason to believe that Mr. Lopez had
obtained the money through the sale of illegal narcotics.
In March, 1993 the DEA sent notices of seizure to Mr.
Lopez both at his last known home address and at the Dade
County Jail in Miami, Florida. Mr. Lopez states that he was
never incarcerated in the Dade County Jail and the Govern-
ment offers no explanation for having sent the notice there.
In any event, both notices were returned to the DEA marked
"RETURN TO SENDER." The DEA also sent to Ms. Coba,
as a potential claimant in her own right, a notice of seizure,
which she accepted, and it published a notice of the seizure in
USA Today once a week for three consecutive weeks. The
DEA did not receive any response to its notices and in May,
1993 it declared the $50,000 forfeited to the United States.
Mr. Lopez claims that he did not learn of the forfeiture
until March or April, 1994, when Ms. Coba showed him the
notice she had received, and that immediately thereafter he
petitioned the DEA for relief from the forfeiture. The DEA
dismissed Mr. Lopez's claim as untimely.
Mr. Lopez sought review in the district court, which grant-
ed summary judgment in favor of the DEA. The court held
that the agency had satisfied its statutory and constitutional
obligations by sending notices of seizure to "interested par-
ties" via certified mail. The district court also imputed to Mr.
Lopez the notice of seizure received by Ms. Coba, who
"allegedly had dominion and control over the money in ques-
tion" at the time of the crime.
Mr. Lopez appeals. We review the district court's grant of
summary judgment de novo. See National Treasury Em-
ployees Union v. United States Customs Service, 27 F.3d 623,
626 (D.C. Cir. 1994).
II. Analysis
The DEA seized Mr. Lopez's money pursuant to 21 U.S.C.
s 881(a)(6), which authorizes the administrative forfeiture of
property furnished or obtained in exchange for a controlled
substance. A forfeiture proceeding is initiated under 19
U.S.C. s 1607(a), which requires the Government to send a
written notice of forfeiture to each party who may have an
interest in the seized property and to publish notice of its
intent to seize the property in a newspaper of general circula-
tion once a week for three consecutive weeks. A potential
claimant then has 20 days in which to file a claim and to post
a bond. See 19 U.S.C. s 1608.
The Due Process Clauses of the Fifth and Fourteenth
Amendments to the Constitution of the United States require
notice that is "reasonably calculated, under all the circum-
stances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objec-
tions." Mullane v. Central Hanover Trust Co., 339 U.S. 306,
314 (1949). Taken together, the steps required by 19 U.S.C.
s 1607(a) generally provide all the notice required for due
process. See id. at 317-18.
In this case, the DEA complied with the statute by sending
notices to Mr. Lopez at his home address and at prison and
by publishing a notice of the proposed seizure in USA Today
for three consecutive weeks. When both of the notices were
returned to the DEA, however, the agency took no additional
steps to determine Mr. Lopez's whereabouts despite its
knowledge that Mr. Lopez was in the custody either of the
State of Florida or of the Attorney General of the United
States; that is, he was in one prison system or the other, as
the DEA very well knew.
In these circumstances, the DEA's efforts to notify Mr.
Lopez directly were inadequate to afford him due process of
law. After learning that the two notices sent to Mr. Lopez
were not delivered, the agency should have attempted to
locate him within the prison system. We made this clear in
Small v. United States, 136 F.3d 1334, 1337-38 (D.C. Cir.
1998)--a decision issued after the forfeiture at issue in this
case--where we held that the Government should have resent
notice of a forfeiture proceeding to a claimant when the initial
notices it sent to the claimant's home and to a prison--the
wrong prison, as it happened--were returned:
[W]hen the government knows (or can easily ascertain)
where a person may be found, it must direct its notice
there....
....
... [I]f ... the government knows that a claimant is in
prison, it ... can easily ... find out whether the prison-
er has been moved or released (and if so, to what
address), or whether some problem at the prison pre-
vented delivery.
Recognizing the inadequacy of the DEA's efforts to notify
Mr. Lopez directly, the Government argues that the notice
the DEA sent to Ms. Coba was also "reasonably calculated"
to reach Mr. Lopez because they were, or "appeared to all the
world" including the DEA, to be married. To Mr. Lopez's
observation that a marital relationship is not enough by itself
to make one spouse the agent of the other for the purpose of
receiving notice, the Government responds that an agency
relationship is not required and that in any event, Ms. Coba
had apparent authority to accept the notice on behalf of Mr.
Lopez in view of her participation in the attempted escape
and the "the alignment of her interest with his."
The Government's argument fails for two reasons. First,
the notice sent to Ms. Coba concerned only her own interest
in the money; it neither mentioned Mr. Lopez nor gave any
indication that Ms. Coba should notify him or any other
person who may have had an interest in the money. The
absence of any suggestion that the notice was sent for a
purpose other than informing Ms. Coba of her own interest in
the proposed forfeiture renders the notice facially deficient as
to Mr. Lopez, regardless whether Ms. Coba was his agent for
the service of process. Cf. United States v. Marolf, 173 F.3d
1213, 1215, 1217 (9th Cir. 1999) (noting that Government
acknowledged notice was insufficient where Government noti-
fied co-defendant but failed to notify claimant after discover-
ing his interest in same property).
Second, Ms. Coba's control over the money during the
attempted escape did not cloak her with apparent authority to
act for Mr. Lopez in all, or perhaps any, subsequent matters
involving the money. Apparent authority is "the power to
affect the legal relations of another person by transactions
with third persons, professedly as agent for the other, arising
from and in accordance with the other's manifestations to
such third persons." Restatement (Second) of Agency s 8
(1958). Apparent authority arises "only to the extent that it
is reasonable for the third person dealing with the agent to
believe that the agent is authorized." Id. cmt. c.
The Government has not alleged any facts that made it
reasonable for the DEA to believe that Ms. Coba was Mr.
Lopez's agent for the purpose of receiving the notice of
forfeiture. Even if Mr. Lopez had vested Ms. Coba with
apparent authority to transfer his $50,000 to the marshal
during the attempted escape, something more would be re-
quired before one reasonably could say that Mr. Lopez mani-
fested his intention that Ms. Coba act as his agent for any
other purpose. Cf. United States v. $184,505.01 in U.S.
Currency, 72 F.3d 1160, 1164 (3d Cir. 1995) (notice of forfei-
ture given to attorney who represented prisoner only in
unrelated suit cannot be imputed to prisoner). The argument
for apparent authority is further weakened by the nearly four
month interval between Ms. Coba's delivery of the money and
the DEA's initiation of a forfeiture proceeding. Assisting
another in a failed attempt to escape is hardly the type of
ongoing activity from which one might reasonably infer con-
tinued authority to act on behalf of the would-be escapee. Cf.
Bye v. United States, 105 F.3d 856, 857 (2d Cir. 1997) (notice
of forfeiture sent to attorney constitutionally sufficient when
attorney represented prisoner in ongoing and related pro-
ceedings).
The Government attempts to bolster its argument for
apparent authority by invoking general principles of agency
between husband and wife. Thus, the Government notes that
although, according to the Restatement (Second) of Agency,
"[n]either husband nor wife by virtue of the relation has
power to act as agent for the other," the same authority
states that "[t]he relation is of such a nature ... that
circumstances which in the case of strangers would not
indicate the creation of authority or apparent authority may
indicate it in the case of husband or wife." Id. s 22 cmt. b.
According to the Government, because Ms. Coba was Mr.
Lopez's wife and because "she had already acted on his
behalf, at her own peril, with regard to the very same $50,000
at issue, DEA had good reason to expect that notice to her
would find its way back to [Mr. Lopez]."
The Government's argument misses the mark. A wife does
not become the agent of her husband by once taking a risk on
his behalf. Rather, it is a course of conduct that may give
rise to the apparent authority of one spouse to act on behalf
of the other. As the Restatement explains:
[A] husband habitually permitted by his wife to attend to
some of her business matters may be found to have
authority to transact all her business affairs. Likewise,
if a wife is customarily permitted by her husband to
order household supplies, authority or apparent authority
on her part to purchase things needed in the household
can be readily inferred.
Id. Although the examples might benefit from some modern-
ization, they make the point clearly enough: An act routinely
performed by one spouse for the other may give rise to
apparent authority for that spouse to perform the same or a
closely related act. The Restatement does not support the
Government's contention that Ms. Coba's single act of trans-
ferring Mr. Lopez's money vested her with apparent authori-
ty to receive for her husband notice that the money is subject
to forfeiture. We therefore hold that Ms. Coba did not have
apparent authority to receive the notice of forfeiture for Mr.
Lopez.
III. Conclusion
For the foregoing reasons, we reverse the order of the
district court granting summary judgment for the Govern-
ment. This matter is remanded to the district court for
further proceedings on the merits of Mr. Lopez's challenge to
the forfeiture of his property.
So ordered.