NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-2594 ____________

SHAUN CURRY, Appellant v.

UNITED STATES OF AMERICA ___________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-22-cv-00299) District Judge: Honorable Chad F. Kenney ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10, 2023 ____________

Before: PHIPPS, MONTGOMERY-REEVES, and McKEE, Circuit Judges.

(Opinion filed: October 19, 2023) ___________

OPINION* ___________

PHIPPS, Circuit Judge.

The Controlled Substances Act, as amended and codified in statute, subjects several types of property associated with the illegal drug trade to forfeiture. See Pub. L.

No. 91–513, Tit. II, § 511 (Oct. 27, 1970) (codified at

(a)). The relevant

statute extinguishes all rights in those types of property, see

(a), and vests * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. in the United States “[a]ll right, title, and interest” in the property “upon commission of the act giving rise to forfeiture,”

§ 881(h). To effectuate such a forfeiture, the statute

incorporates, as applicable, the procedures of the Tariff Act of 1930 and the related

customs statutes. See id. § 881(d). Those laws permit forfeiture of property valued at $500,000 or less to be achieved through an administrative proceeding. See

(a); see also

§ 1609(a); see generally United States v. McGlory,

(3d Cir. 2000) (en banc) (“When the seized property is $500,000 or less, the

government may use the administrative forfeiture process governed by the customs laws;

this process entails no judicial involvement.” (citing first

and then

(d))). To initiate such a proceeding, a federal official must provide notice, generally

within 60 days of the seizure, of its intent to seek forfeiture of the property. See

(a);

(a)(1)(A)(i); McGlory,

. Such

notice, which must be published and personally served on interested parties, must

contain, among other things, a description of the seized property, the date of the seizure,

the statutory basis for the seizure, the place of the seizure, and the deadline for filing a

claim. See

(a);

(a);

(a) (notice by

publication), (b) (personal written notice); see also McGlory, 202 F.3d at 669–70.

If an interested party timely files a claim for the property, then the Government

has 90 days to file a complaint for forfeiture in a federal district court, which has original

and exclusive jurisdiction over the matter. See

(a)(3)(A) (providing 90

days, subject to exceptions, for the Government to file a claim);

(imposing obligations on the Government upon the filing of a claim);

(a) (“The district courts shall have original jurisdiction, exclusive of the courts of

2 the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress . . . .”

(emphasis added)). If the Government does not initiate such a judicial forfeiture

proceeding, then it must “promptly release the property” save for contraband, and it “may not take any further action to effect the civil forfeiture of such property in connection

with the underlying offense.”

(a)(3)(B). Thus, once an interested party

files a claim, the forfeiture will not be resolved in an administrative proceeding: the

Government must either commence a judicial forfeiture proceeding or release the seized

property. Cf. Malladi Drugs & Pharms., Ltd. v. Tandy,

(D.C. Cir.

2009) (“The forfeiture statutes and regulations provide alternative, not sequential, administrative and legal remedies for an administrative forfeiture.”); but cf.

(permitting an unsuccessful claimant in a judicial forfeiture proceeding to seek

leniency through an administrative petition for remission or mitigation).

But if no interested party files a claim for the property, then the administrative

forfeiture mechanism proceeds unabated. Unlike a judicial forfeiture proceeding, the

administrative proceeding does not resolve claim disputes; instead it permits only

petitions for remission or mitigation. See

(setting forth the persons who

may submit such a petition, the required contents of the petition, and the process for

filing a petition); see also

(providing for petitions for remission or

mitigation under the customs laws); United States v. Vega,

(7th Cir.

1995) (“[A] Petition for Remission and Mitigation ‘does not serve to contest the

forfeiture, but rather is a request for an executive pardon of the property based on the petitioner’s innocence or, for a wrongdoer, on a plea for leniency.’” (quoting United

States v. Ruth,

, 604 n.2 (7th Cir. 1995))). Remission of the forfeiture is

3 appropriate when the petitioner establishes the innocent-owner defense by a preponderance of the evidence. See

(a)(1); see also

(d)

(setting forth the innocent owner defense). And mitigation of the forfeiture, at least for a

petitioner “involved in the commission of the offense underlying the forfeiture,” is discretionary relief in the form of a less burdensome forfeiture.

(b)(2); see

also

§ 9.5(b)(3) (describing permissible forms of mitigation). Circumstances that

justify mitigation include the petitioner’s lack of a prior criminal record, a minimal

violation, and the petitioner’s cooperation with law enforcement. See id. § 9.5(b)(2)

(providing a non-exhaustive list of mitigating circumstances).

Against that backdrop, Shaun Curry, while at the Philadelphia International Airport on February 4, 2021, consented to the search of his luggage by agents with the

United States Drug Enforcement Administration. They found a small amount of

marijuana and $121,420 in cash smelling of marijuana. The DEA seized that property

and commenced an administrative forfeiture proceeding by issuing notices of seizure –

through online publication at forfeiture.gov and by certified mailings to Curry’s last

known address, which were signed and returned. The letters notified Curry that he had

until May 7, 2021, to file a claim.

He did not file a claim by that date. Instead, after the deadline, Curry, through

counsel, filed petitions as part of the administrative forfeiture proceeding – one for

$66,420, the other for $55,000. As far as remission, both petitions had a box checked to

indicate that Curry sought remission based on the innocent-owner defense, and they

provided brief, supporting justifications. But with respect to mitigation, both petitions had another box checked to indicate that Curry did not seek mitigation of the forfeiture.

4 The DEA denied Curry’s petition in a five-page letter, and it issued forfeiture declarations for the money seized.

Curry then filed a civil complaint in the District Court to claim that it was

excessive to seize the entire $121,420. Construing that grievance as an excessive-fine claim under the Eighth Amendment, the District Court dismissed it on the Government’s

motion for a lack of subject matter jurisdiction. See Curry v. United States,

, 320 (E.D. Pa. 2022). Curry timely appealed that final decision, bringing the

jurisdictional dispute within this Court’s subject matter jurisdiction. See

.

The District Court was correct. Under this Court’s precedent, judicial review does not extend to the merits of a remission or mitigation ruling. See McGlory,

(“A district court ordinarily lacks jurisdiction to review the DEA’s administrative

forfeiture proceedings.”); United States v. Kravitz,

(3d Cir. 1984). At

most, an unsuccessful petitioner can challenge the Government’s compliance with

“statutory and due process requirements” for notice. McGlory,

(quoting

United States v. Woodall,

(8th Cir. 1993)); see also

(e)(1) (“Any person entitled to written notice in any nonjudicial civil forfeiture

proceeding under a civil forfeiture statute who does not receive such notice may file a

motion to set aside a declaration of forfeiture with respect to that person’s interests in the

property . . . .” (emphasis added)). But Curry brings an Eighth Amendment claim – one

that he did not raise during the administrative forfeiture proceeding – and not a statutory

or due process claim for inadequate notice.1 Thus, the District Court lacked subject-

1 Because Curry does not challenge notice, it is not necessary to address whether

(e) is a jurisdiction-stripping statute or a claim-processing rule – an issue that has divided the appellate courts. Compare Mesa Valderrama v. United States,

(11th Cir. 2005) (holding that § 983(e) is jurisdictional), with

5 matter jurisdiction over Curry’s challenge to the administrative forfeiture decision. See McGlory,

; see also Conservation Force v. Salazar,

, 1242–

43 (9th Cir. 2011) (holding that a district court lacked jurisdiction to review

administrative forfeiture proceedings); cf. Troconis-Escovar v. United States,

(7th Cir. 2023) (dismissing an Eighth Amendment challenge to an

administrative forfeiture because the plaintiff did not timely file a claim with the agency);

Litzenberger v. United States,

, 821–22 (Fed. Cir. 1996) (same). For that

reason, we will affirm the order of the District Court.

Okafor v. United States,

(9th Cir. 2017) (holding that § 983(e) is a claim-processing rule).

6