DUSENBERY v. UNITED STATES
While Larry Dean Dusenbery was in prison on federal drug charges, the Federal Bureau of Investigation (FBI) began an administrative process to forfeit cash that officers seized when they executed a search warrant for the residence where he was arrested. The FBI sought to notify Dusenbery by sending certified mail addressed to him care of the federal correctional institution where he was incarcerated; to the address of the residence where he was arrested; and to an address in the town where his mother lived. The FBI received no response in the time allotted and turned over the cash to the United States Marshals Service. When Dusenbery moved for the return of all the property and funds seized in his criminal case, the District Court denied the motion. On remand, the District Court ruled that the Government's sending of notice by certified mail to Dusenbery's place of incarceration satisfied his due process rights as to the cash. The Court of Appeals affirmed.
Does the FBI's notice of intended forfeiture by sending certified letters to inmates while incarcerated satisfy due process?
Legal provision: Due Process
Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the FBI's notice of the cash forfeiture satisfied due process. The Court reasoned that the means employed to provide notice to the prisoner were reasonably calculated, under all the circumstances, to apprise the prisoner of the forfeiture. The prisoner did not actually have to receive the notice, noted Chief Justice Rehnquist. "The Government could, for example, have allowed [Dusenbery] to make an escorted visit to the post office himself in order to sign for his letter. But the Due Process Clause does not require such heroic efforts by the Government; it requires only that the Government's effort be 'reasonably calculated' to apprise a party of the pendency of the action." Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer, dissented, arguing that the Court was condoning a procedure that was too lax to reliably insure that a prisoner would receive a legal notice.
ORAL ARGUMENT OF ALLISON M. ZIEVE ON BEHALF OF THE PETITIONER
Chief Justice Rehnquist: We'll hear argument now in No. 00-6567, Larry Dean Dusenbery v. the United States.
Mr. Zieve... Ms. Zieve.
Ms Zieve: Mr. Chief Justice, and may it please the Court:
The issue in this case is whether the procedures used to serve notice of forfeiture of petitioner's property satisfied due process.
The Federal Government forfeited Mr. Dusenbery's $22,000 in 1988 after mailing a notice to him at the Federal prison where he was incarcerated.
It is not disputed that he did not get the notice.
The... the Government argues that its 1988 procedures satisfied due process whether or not the notice was received.
However, in light of the circumstances presented here, including the Government's control over the prisoner's location and knowledge of the prisoner's location at all times and its control over prison procedures, due process requires the Government to use procedures that offer assurances of delivery to the inmate addressee and not just to prison personnel.
Unidentified Justice: Well, you take the position that it's not sufficient that there be staff at the prison who deliver mail to the inmates?
Ms Zieve: --That, in and of itself, is not sufficient.
The... the procedures need--
Unidentified Justice: A procedure whereby a prison employee delivers certified mail to prisoners is inadequate in your--
Ms Zieve: --That... that, in and of itself, is inadequate as... although--
Unidentified Justice: --Is in adequate?
Ms Zieve: --Is inadequate, although those procedures--
Unidentified Justice: How can that be under any of our case law, that that would be in adequate per se?
Ms Zieve: --Well, the... under this Court's case law, what's required when the notice is served is determined by a consideration of a balance of factors in light of the circumstances.
Unidentified Justice: Well, we've never required actual notice in any case, have we?
Ms Zieve: --No, although there is some suggestion of that in... in a couple cases, for instance, Phillips Petroleum.
But in... in the cases discussed in the briefs, there is not a requirement of actual notice, but at the same time, the Court assumes that the mailed notice or the form of notice will be received, and the Court hasn't considered a case where it was uncontested that individual... an individual was entitled to notice and yet the notice wasn't received.
Unidentified Justice: Well, but that's going to happen sometimes with any sort of notice except the requirement of actual receipt by the individual, and we've never felt that destroyed the validity of the notice.
Ms Zieve: That's true, Your Honor, but in the circumstances presented here, consideration of the balance of factors leads to a requirement the procedures that would satisfy those factors would also lead to actual notice.
For instance, today the Government uses procedures under which, after the mail is received by the prison, there's not just some vague distribution process at the prison, but the mail is signed for.
In the mail room, there's a log book kept, and when it leaves the mail room a log book is kept that is ultimately signed for by the inmate.
And this chain of receipts helps to ensure that there's extra care and attention paid with the delivery of the notice.
Unidentified Justice: Would you be satisfied with that if that had been the case here?
Ms Zieve: Yes.
If those procedures had been followed.
Unidentified Justice: Even... even though there was... I was going to say even though there was no receipt signature, but I guess under the procedures now, the... the prisoner would have signed a log.
Is that right?
Ms Zieve: Yes, he would have signed a log.
And if he had a challenge and he has a signature, he's going to lose, and if there is no signature... excuse me.
Unidentified Justice: The procedure that was in place for certain kinds of mail that was labeled special mail... if that had been... if that had applied to notices in this category... special mail, as I understand it, could be opened only in the presence of the prisoner?
Ms Zieve: That's correct.
Unidentified Justice: And if that had applied, that old rule had applied to this category of mail, you would not object to that, would you?
Ms Zieve: Well, the special mail opened only in front of the prisoner happens after it's delivered to the prisoner.
I think it's helpful that the FBI and the DEA, in recent years... the Government writes in its brief, in recent years, have considered forfeiture notices and labeled those as special mail, but the procedure still needs to be adequate to get to that point where you're standing in front of the prisoner opening the mail.
Unidentified Justice: Ms. Zieve, I'm... I'm not sure what... what is the general principle of which you assert the rule that you urge upon us in this case is... is just an exemplar.
Is the general principle that when the Government is in charge of the delivery system, there must be actual notice evidenced by a signature of whoever it's delivered to?
Ms Zieve: Your Honor, that's one important factor, but the case here is even easier because there are... there are numerous--
Unidentified Justice: You're not urging that when the... that the distinctive factor is that the Government is in charge of the delivery system because that would have been the case in the old post office when... when the post office was actually part of the Federal Government.
So, that's not the principle.
Ms Zieve: --That's not the only factor.
Here we have not--
Unidentified Justice: What... what is the principle?
When the Government is in charge of the residence?
So, we would need a similar rule for all members of the armed forces.
Ms Zieve: --There are several key factors here, and I don't think you can separate out one circumstance from the rest.
Unidentified Justice: Well, you said the first one isn't it.
I don't understand.
If neither one alone is enough, I don't know why all in combination turn out to be enough.
Ms Zieve: --Because that's the circumstances.
There's a body of circumstances presented here.
The inmate's location is not just easily ascertainable by the Government, but determined by the Government.
The procedures used for--
Unidentified Justice: Well, that would apply... that would apply to all members of the armed forces.
Ms Zieve: --The procedures used for delivery are also determined by the Government, and--
Unidentified Justice: That would also apply to the armed forces.
Ms Zieve: --And the Government is in an adverse position, which I think requires additional cross checks in the system to ensure that care is taken because the Government doesn't have incentive to identify and rectify inefficiencies on its own.
Unidentified Justice: You really think that that's realistic here?
You would not urge us to apply this rule in a civil action where your client was being served a paper by... by someone who is not the Government.
Ms Zieve: Well, if the... if the serving party were not the Government, then the person doing the service would not be the person who was also in control of the delivery procedures.
Unidentified Justice: I understand that.
Ms Zieve: So--
Unidentified Justice: So, you have not urged the rule in that case, only when the Government is... is the opposing party.
Ms Zieve: --Well, I'm not trying to be evasive, but it's hard to answer without knowing all the circumstances there.
For instance, what would be the--
Unidentified Justice: All the other circumstances are just like this one except that the complaint was not on behalf of the Government.
It was behalf on a private individual.
Ms Zieve: --Well, then the private individual wouldn't have control over the procedures.
It might be that mailing wasn't... wasn't adequate in that circumstance.
It might have to do with the value of the property.
Unidentified Justice: You can answer this yes or no.
Do you assert that your rule would apply in that situation or not?
All of the circumstances are the same.
The only difference is the complaint was not filed by the Government, but by a private party.
Say it was for an ordinary debt, that the prisoner owed money and the creditor brought suit.
Ms Zieve: It might not apply in that circumstance, but whether or not it does, this is an easier case.
Unidentified Justice: Let... let me ask you.
I... I take it you begin from the premise that mailed notice is adequate for a civil suit, or do you?
I'm going to ask the Government the same thing.
I... are we supposed to write an opinion that... that says that mailed notice is adequate in any civil suit?
Ms Zieve: No.
The... in fact, under rule 4(d) mailed notice is not adequate under civil suit... for any civil suit.
But I don't think--
Unidentified Justice: From a constitutional... I know what 4(e) says, but from a constitutional standpoint, is mailed notice adequate in any civil suit?
Ms Zieve: --Well, I think it's probably not adequate in any civil suit.
Unidentified Justice: All right.
What is... what is it about this that makes mailed notice adequate whereas apparently there's another class of cases in which personal service is required?
Ms Zieve: Well, this case--
Unidentified Justice: You... you begin I... I think with the assumption that mailed notice would be adequate, and the question is, are these mailing procedures adequate in this case?
Ms Zieve: --Well, no, Your Honor--
Unidentified Justice: But I'm... I don't want to have you take a position you don't take.
But it... it does seem to me that that is the baseline assumption from where you begin the argument.
Am I correct about that?
Ms Zieve: --Not exactly, Your Honor.
This case is not really a mailed notice case because the procedures that are inadequate are the procedures that happened after the mailing.
The mailing is the first step in the delivery chain, and the question here is the adequacy of the procedures after that.
Unidentified Justice: But I'm asking why is mail adequate at all?
You seem to assume that, and that's fine.
We can decide the case on that basis.
But you make the assumption that if the mail were received, the mailed notice would be adequate.
Ms Zieve: If the mail is received by the inmate?
Unidentified Justice: Yes.
And I want to know why that is.
I'm going to ask the Government.
If we have to write this case, it would seem to me that at least an argument could be made that personal service is required--
Ms Zieve: Well--
Unidentified Justice: --in any civil case.
And then we ask if this is a forfeiture or there's some old hangover from the in rem idea that is still somehow affecting us even though we don't talk about in rem anymore and so forth.
But I want to know what your... your beginning principle is for the due process, elementary, minimum standards of service.
Ms Zieve: --The mailed notice is any form of delivery... any form of notice is adequate as to that individual if it's received.
The mailed notice is adequate when it's received, and in this case, the Government's procedures used certified mail so that you know that the mail was received.
If the Government had mailed the certified mail to the proper prison and it had not been received, the certified mail slip never came back, then I don't think the mailed service would have been adequate.
Unidentified Justice: Have any of our cases ever required certified mail?
Ms Zieve: Well, the first case where the Court considers whether mailed notices is constitutional in Hess v. Pawloski, the mail at issue was certified mail.
Subsequent to that, the Court hasn't made a distinction between the form of mail.
TThe Court also hasn't considered the case where mail was sent but not received.
And the Court's cases in Mennonite Board and Tulsa Professional Collection Services, in the cases discussed in the briefs, the question was whether an individual was entitled to notice in addition to publication or posting, not whether... the Court had no occasion to consider what would happen if the notice was mailed but never got there.
Unidentified Justice: It seems to me one of the difficulties I find with your position, Ms. Zieve, is that this inquiry can come up, you know, months and maybe years after the actual notice took place or didn't take place.
And it's one thing to say we have a... you followed a system and that system affords due process, but to have every case turn on perhaps an argument between the person who's seeking to set aside the service... I never received it... and someone else saying, yes, you did receive it, I think is rather unsatisfactory.
Ms Zieve: Well, that's why the procedures should require proof of verification which the Government's procedures do today.
If Mr. Dusenbery was served with a forfeiture notice today, he would be required to sign for it and there would be no question later about whether or not he received it.
Unidentified Justice: Was he not--
--The question I'd have is we all seem to agree now that the question... the Government has to provide reasonable procedures.
Reasonable means reasonably calculated to give actual notice.
Ms Zieve: Under the circumstances.
Unidentified Justice: Well, don't say... there's no such thing.
There's no such thing.
Under the circumstances doesn't add anything I don't think.
You say is it reasonably calculated to give actual notice.
I haven't figured out your qualification, how that would work.
But why wasn't this precisely?
Precisely what's wrong with these procedures in your opinion?
Ms Zieve: The--
Unidentified Justice: Why are they not calculated to give actual notice reasonably?
Ms Zieve: --The 1988 procedures did not provide assurances of delivery because what happened after the mail reached the mail room is... was vague and undocumented.
And as the Government acknowledged--
Unidentified Justice: I always thought the procedure... I thought the... what... what... tell me precisely.
I think the procedure is, A, mailed to a prison.
B, it comes to a prison, and a person who works for the prison signs for it.
Then the procedure required what?
What was it required?
And then what should it have required?
Ms Zieve: --The procedure was that the mail room employee picked up the mail and signed the certified mail receipt at the post office, brought it back to the prison, where he entered it in a log book.
A prison employee testified that in 1988 the procedure then would have been that a... a housing unit staff would have signed when he took the mail... the certified mail out of the mail room.
Unidentified Justice: Yes.
Ms Zieve: He also testified that he didn't know what the procedure was after that.
Unidentified Justice: All right.
I guess after that... a reasonable person would think the procedure after that is you give it to the person it's addressed to.
Now, is... I mean that would be normal in life.
Is there any testimony that that wasn't the procedure?
Ms Zieve: No.
There was no testimony about that.
Unidentified Justice: Okay.
Now, we've described the procedure, and now you tell me what, in your opinion, is wrong with that procedure.
Ms Zieve: The procedure doesn't require verification of delivery and that--
Unidentified Justice: Okay.
So, in your opinion, it is unreasonable not to have an additional step that the prisoner signs for it.
Ms Zieve: --Yes, and the reason is this.
Because the documentation... the improved documentation improves delivery.
The... the Department of Justice Board of Prisons memorandum that the Solicitor General lodged with the Court both in 1999 and 2001... it ties improved documentation to improved delivery.
Unidentified Justice: Then... then whenever there's a requirement or... a requirement... procedure for service by mail, it should be certified mail so the person signs for it in every case.
Ms Zieve: In--
Unidentified Justice: Ms. Zieve, you couldn't say every case because in Mullane regular mail was adequate in that under the circumstances, which was heavily emphasized by Justice Jackson, those words, under the circumstances.
Ms Zieve: --In Mullane and in some cases where there's a class of interested parties where everyone has this same interest, it might not be necessary for all interested parties to receive the notice.
As the Court recognized in Mullane, because there were many beneficiaries of a 113 different trusts and they all had a identical interests--
Unidentified Justice: All right.
Then I'll... then I'll amend my question.
In a case where there is only a single defendant and service is permitted by mail, it must be by certified mail.
Ms Zieve: --Well, that would likely be reasonable since the burden of doing so is so small and the increased... the decreased risk of it not reaching the addressee would be--
Unidentified Justice: You don't mean that it might reasonable.
You mean it isn't reasonable not to do it.
That's your argument.
Ms Zieve: --Right.
Unidentified Justice: It isn't reasonable not to do it.
And I guess a person who thought it was reasonable not to do it would say, well, we can't think of everything, and you know, it's in the prison, and prisons normally do work.
I mean, they're not great, but they have a... a fairly disciplined order.
And so, it's good enough.
And your response to that is what?
Ms Zieve: It wasn't good enough in... in these circumstances.
The Government has shown us--
Unidentified Justice: Well, they might... they might say more than that.
They might say we have no reason to believe that the prison delivery system is any worse than the post office's delivery system.
And I... I guess it's your... I guess it's your contention that even if the reason your client never received the notice was... had nothing to do with the fault of the... of the prison.
It was the Postal Service that lost the... the notice on the way.
That would still... that would still invalidate the service.
Ms Zieve: --It would still mean the forfeiture was done without adequate notice.
Unidentified Justice: So that... so... which would not be the case, I suppose, unless you're going to adopt the certified mail rule, which would not be the case for an ordinary citizen who is not incarcerated.
If notice is sent to an ordinary citizen and the post office looses it, unless you adopt the certified mail rule, that would be adequate notice.
But in the case of an incarcerated person, if the post office looses it, it is not adequate notice.
Ms Zieve: Well, I don't know that it would be adequate notice to serve someone by mail out of prison if it's not received.
Unidentified Justice: Well, what is... what is the statutory requirement in your view for forfeiture as... as far as notice is concerned?
Ms Zieve: The statutory requirement?
Unidentified Justice: Yes.
Ms Zieve: Is publication and notice to the interested party.
Unidentified Justice: By mail?
What is the general statutory requirement on these forfeiture notices?
Ms Zieve: I believe the statute says by mail, although the Government always does it by certified mail.
And it does that--
Unidentified Justice: Is it in the materials we have in the briefs?
Is there some copy of that provision somewhere that you're aware of in the briefs?
Don't take a lot of time if you don't know.
I just thought perhaps you knew.
Is in your brief at all?
Ms Zieve: --It's on page 3 of the Government's brief.
Unidentified Justice: Page 3.
Ms Zieve: It just says, shall be sent to each party who appears to have an interest.
Unidentified Justice: See, that's why I don't know how to do it because, I mean, suppose there's a ship, for example.
Take the other extreme case.
People forfeit ships.
People have tort actions against ships, and you could have ships that are owned by thousands of people, for example.
And where you bring the action against the thing, it's fairly normal that you don't actually have to get the signature of every person who has some interest in that ship, for example.
Now, I think, am I not right, or do you have to get the signature?
If... if, for example, you're bringing an action against a thing and the thing is owned by millions, thousands, or hundreds, does the... do you have to normally, under the rules... forget the Constitution for the moment... you have to get the signature on a... on that notice, a return receipt requested of each person who has an interest in that thing?
Ms Zieve: Under the statute?
Unidentified Justice: Yes.
Ms Zieve: Now, you've asked a sort of complicated question because the statute for an in rem judicial forfeiture requires publication, but the Government, based on this Court's case law, gives notice by certified mail.
Unidentified Justice: But I take it your argument would be that even if all the signatures are not required in the in rem case, there is... there is a fairness in the procedure that would not require actual notice and signatures to every ship owner because the owner of the ship at least has some right to control the ship.
So, you say, look, if... if they don't pay attention to what's happening to their ship, we... we can tag them with that.
But the difference between that case and this, as I understand it, is there is a period between delivery of the letter and what should be the point of receipt by the prisoner when the prisoner is not in control of the process.
The post office has finished its part.
So, if we assume regularity on the post office is normally enough, that isn't enough here because there's a hiatus between where the post office stops and the point at which we hope the prisoner gets the delivery.
And I take it you would be satisfied in this case, even without a rule requiring actual signature, if the Government were required to show, with a greater detail than you say it has here, that there was a regular procedure, at the time involved here, that makes it just as probable that the letter would have gotten from the front door of the prison to the prisoner, as it is probable that the letter mailed in the box gets to the front door of the prison.
You'd be satisfied with that kind of a rule, wouldn't you?
Ms Zieve: Yes.
I'm not... it's not... it's not important to petitioner how the procedures--
Unidentified Justice: How he wins the case as long as he wins.
I realize that.
Ms Zieve: --No.
Unidentified Justice: I mean, you would... you would be satisfied if... if we had the... I take it, the same kind of demand for proof of regularity for the period between the front door of the prison and the prisoner's cell that we do from the mailbox to the front door of the prison.
That would be a reasonable system.
And... and you'd be satisfied with it, I would take it, as a general rule.
Ms Zieve: Probably.
Unidentified Justice: It would be nice to have a signature requirement, but basically we... we would have the same kind of rule then that we have with... with respect to mail delivery in general.
Ms Zieve: Yes, but the reason that I emphasize the signature is because, as the Bureau of Prisons has since recognized, the... the signature does help to improve delivery.
It helps to make sure that this letter is treated with some extra attention and care.
It ensures that it's not going to get misdelivered to Larry Smith two cells over.
Unidentified Justice: What do we do with prisoners who won't sign?
Ms Zieve: Well, actually the Board of Prisons procedures deal with that, and I think effectively, which is on the log book, if the prisoner refuses to sign, then the person delivering the mail signs for it stating that the prisoner won't sign, which I think is comparable to a process server giving a contemporaneous statement that service has been completed.
Unidentified Justice: You know, it seems to me we need to focus on some kind of a test, and I thought I understood you to argue for a test that says in these prison cases, there has to be actual receipt by the prisoner.
And I... I know the Third Circuit and probably the Fourth have a different sort of test, which is that the Government just has to show that internal prison delivery procedures are adequate.
Is that an acceptable general statement of the test?
Ms Zieve: They have to be adequate.
My view is that under this Court's... the analysis that this Court has used in its cases, in its due process cases, that applying that general statement leads to the same result that I'm arguing for here, although if the Court--
Unidentified Justice: You say it isn't adequate unless there's actual receipt.
Ms Zieve: --Yes, because those procedures are... it's entirely practicable to do that.
There's... it is not difficult to--
Unidentified Justice: Well, in the event we don't agree with you, what's your fall-back position?
Ms Zieve: --Well, even under the Third Circuit's formulation, the Court, looking at the 1988 procedures in the record, such as they are... those procedures were inadequate.
It's uncontested that he didn't get the notice, and the procedures as described, are inadequate, although for the same reasons as I think lead to actual notice, even if you don't want to go that far.
Unidentified Justice: Why is it that a procedure is inadequate if the procedure is that if we get certified mail, we... we deliver it to the prisoner?
What's inadequate about that as a procedural standard?
Ms Zieve: Again, it doesn't provide the assurances of delivery that both are feasible because, if you're going to deliver it, it doesn't take that much to just get the signature, and because I think it's important to have cross checks to make sure that the Government--
Unidentified Justice: Do we look back at Mullane or at Mathews v. Eldridge for our guidance here in establishing a standard?
Ms Zieve: --I think either one, Your Honor.
Mullane states... sort of states the test in one sentence, but I think summarizes the three-part framework that Mathews articulates later.
Either way you can reach the same result.
The value of the property at stake, the risk of erroneous deprivation, the valuable... the value of additional procedures, and the burden on the Government, the factors to consider, all lead to same... to the result here that the prison should have done more and could have and should have ensured actual notice to inmates in its charge.
Unidentified Justice: --apply this rule to any... anything other than prisons or are you talking about the circumstances of someone incarcerated by the Government?
Is there any other setting in which you would require not merely that certified mail be sent and signed for by someone, but in-hand delivery?
Ms Zieve: There may be other cases, though there also may not be.
This is the easy case.
If there's any circumstances where actual notice is required, it's got to be these where the Government is both the sender and sort of the recipient for later delivery to the person who it knows where it is--
Unidentified Justice: Why is it the easy case?
It is the case, I take it from your argument, because you haven't suggested that there might be another setting other than where the Government has someone in confinement.
Ms Zieve: --No, I haven't.
Unidentified Justice: Is it any part of your argument that we should be suspicious of prison officials because they may use a refusal to follow their procedures for vindictive reasons or anything like that?
Ms Zieve: That may occur, Your Honor, but our argument does not rely on any malfeasance on the Government's part.
Unidentified Justice: That's not your argument.
Well, if that's not part of your argument, I don't see why your situation is any different from the military situation where, unless... unless the serviceman or woman is AWOL, the Government knows right where that person is and the Government is responsible for... for where that person is.
I don't know why you wouldn't have the same rule.
Ms Zieve: Well, to be honest, I hadn't considered the military situation, and maybe there's more parallels.
However, there's still the... the inmate is still special in that he has no control over his property.
There are no proxies looking out for him, for his interests.
And the mail, even when it's sent to the military, my assumption is that if you get certified mail, the soldier is going to sign for it.
The officer will sign for it and not someone for later delivery to him without any proof or documentation about what happened in the interim.
If the Court has no further questions, I'd like to reserve the balance of my time.
Unidentified Justice: Very well, Ms. Zieve.
Mr. Minear, we'll hear from you.
ORAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE RESPONDENT
Mr. Minear: Mr. Chief Justice, and may it please the Court:
This Court has repeatedly held that the notice requirements of the Due Process Clause are satisfied by a method of notice that's reasonably calculated to provide interested parties with notice of the proceedings.
The Government's method of providing notice in this case, this forfeiture case, satisfies that test.
The method was by the use of certified mail.
And petitioner does not dispute that mails generally are satisfactory for purposes of notice.
Rather they draw the distinction that only in the case of prisoners is that method unwarranted or unconstitutional.
Petitioner is asserting a constitutional violation.
It therefore has the burden of proof of establishing the procedures the Government used are unconstitutional.
And I'd like to clarify a point with regard to whether notice was received here or not.
The Government has not submitted that notice was not received.
We simply are unable to prove that it was not received.
Unidentified Justice: So, why not just put the burden on the person who was supposed to get it to prove he didn't get it?
Mr. Minear: Well, that is in fact what the court did.
It didn't... there wasn't a test it required, but the inquiry was made, and the court concluded that whatever the protestations of the defendant might be, or the prisoner in this case, nevertheless the method that was used here was reasonably calculated to reach him.
And that is all that Mullane requires.
Unidentified Justice: No, no.
Look, what I take it that she's arguing for is there's a step missing here and it should apply not just to prisoners, apply to anybody who's going to have their property forfeited, and that is, you give them notice by certified mail so they have to sign it.
That's the point.
So, it would apply to everybody, armed forces, everybody.
And what's wrong with that?
It isn't that hard to do.
It protects pretty thoroughly against losing your property without even knowing about it.
So, do it.
Mr. Minear: The problem--
Unidentified Justice: That's... that's basically, as I understand it, the argument.
Mr. Minear: --The problem with that position is it's contrary to 50 years of this Court's precedence, which has consistently recognized that mailing alone... not certified mail... but ordinary mail, is sufficient to provide parties with notice.
Unidentified Justice: Where did the Court hold that?
Have we ever said that with reference to a simple contract or tort action?
Mr. Minear: No.
All of the cases in which this issue has arisen in this Court's jurisprudence have involved special procedures.
Unidentified Justice: Well, that's why I'm asking because in Mullane and subsequent cases, we have tended to say that the in rem/in personam distinction is... is not too clear a line.
Are you arguing for the proposition that, again, in a standard contract or tort case, notice by mail would be sufficient?
Mr. Minear: --We are certainly willing to defend the proposition that the Federal Rules of Procedure, which provide--
Unidentified Justice: No.
I'm talking about... I'm talking about due process requirements now.
Mr. Minear: --Yes.
And... and with regard to the Federal Rules, they do recognize that service can be effected through mail... through the notice of waiver provisions that are set forth there, and we would defend the constitutionality of those provisions which allow the party to, in fact, accept service by notice.
Unidentified Justice: If this Court writes a due process opinion, can we say that mail, routine mail, is always sufficient, or are there some cases in which you must have personal service?
Mr. Minear: Well, the Court can certainly do that.
We might caution that it's not necessary to do that in this case.
Unidentified Justice: Well, I want to know what the principle is that you're... that controls our case, the beginning principle here.
Mr. Minear: The Court has drawn these principles largely from common experience and knowledge about the instrumentalities that are used for purposes of service.
And if we looked at the Mullane case, the Court cited that the mails had, through common experience, been determined to be a reasonable means for providing service in that type of proceeding.
Now, whether the Court would want to take the step of saying that the mails are always adequate in any proceeding is a step that's not necessary for the Court to take.
And so, I'm hesitant to suggest to the Court that it ought to do so.
It certainly does not need to do so in this case because this case involves procedures that are very similar to Tulsa, to Mennonite, to Schroeder, to--
Unidentified Justice: All right.
So, then you are relying on the fact that this is a forfeiture case and we're... there's this voice of the past of in rem versus in personam hanging over this... this argument of yours.
Mr. Minear: --Well, actually no, Your Honor.
It's not the in rem nature of the proceedings, but rather it's a... it's an intersection of two factors.
One, this type of proceeding is similar to the proceedings this Court has dealt with previously that are not necessarily in rem.
For instance, probate claims are not necessarily... would not necessarily be treated as in rem I think under... under traditional law.
But it's... it's the intersection of the fact that these proceedings are similar to proceedings elsewhere that the Court has already ruled on and the fact that this Court can draw on its long experience the mails are, in fact, as a practical matter, a reasonable means for providing service or providing notice.
Unidentified Justice: I'm just very puzzled by your reliance on Mullane when Justice Jackson took such care to say this procedure, common trust fund, so many beneficiaries, some unknown, some addresses lost... if we use regular mail, the chances are it will get to many, if not most, people in the group, and that's good enough for that kind of case.
Here we're talking about some $12,000 that once belonged to an individual, not 113 trusts combined together in a common fund with hundreds, even thousands of beneficiaries.
Your Honor, Mullane has been extended beyond the facts of its individual case.
And this case is, in fact, quite similar to the Court's most recent decisions, such as Tulsa Professional Services.
In that case, I believe there was some $12,000 in medical fees that were in dispute.
The... the creditor in that case couldn't count on other claimants, as in Mullane, to perhaps make the arguments that that creditor might--
--Well, but that was with the probate proceeding.
And as Justice Ginsburg's questions point out and what I've been trying to... to explore with you, this is a case where a person has an ownership interest.
It's not that much different from an ordinary contract or tort action.
Mr. Minear: Yes, Your Honor.
And we think that this case is similar to Tulsa and ought to be treated as such.
I'm simply reluctant to urge this Court to go beyond the facts of this case and to deal with the question of a civil complaint and whether ordinary--
Unidentified Justice: I suppose... I suppose in probate a claimant, a debtor claimant, is in much the same standing as a person who sues in contract on that claim before the person dies.
Mr. Minear: --Well, yes.
But probate is very similar to the situation here, that the notice that is being provided is simply to ascertain whether there are any claims outstanding to the property at issue.
And if a person does make a claim, then that initiates a judicial procedure in which further process would be necessary.
But this case is--
Unidentified Justice: Here there's no doubt about the person who has the interest.
It was not like sending out a notice: any interested people come forward.
The Government knows who the person in the world is who has a claim to this $12,000.
Mr. Minear: --But, Your Honor, the same could be said, for instance, in Mennonite with regard to the mortgagee, that the person who is... that... that was a situation in which there was an interest in... in foreclosing on a property and selling it at a tax sale.
Now, the Government in that situation certainly could have identified the mortgagor and simply provided notice by publication.
This Court said that notice by mail was sufficient.
It was the minimum that was necessary and it applied in that--
Unidentified Justice: --better than publication generally.
Mr. Minear: --Yes.
Unidentified Justice: --publication is the least effective, and the Mullane case that you rely on so heavily makes that point.
Mr. Minear: Yes, and that's the reason why the Government in these situations provides notice by publication, also by notice to the person's last address, and also notice to his current address if it can be ascertained.
In this case, the Government, through reasonable diligence, was able to locate the individual and send notice to his place of incarceration.
The only thing that distinguishes this case, in fact, is that the mails are being directed to a prison, and the only real question here is whether the prison system is reliable.
And what we established at trial was, in fact, it was.
There were procedures in place to ensure that the mails were delivered to prisoners.
Unidentified Justice: Fine.
Then you would win even under their rule because then the prisoner would be unable to prove that he didn't get the notice.
So, assume that that's the rule.
The prisoner has to prove he didn't get the notice.
Anyone who doesn't... who actually gets notice loses.
What I'd like to know is, assuming that, what is the argument against saying where it's a forfeiture case and where the forfeiting... the person who's going to get the property knows the address of the individual who would forfeit the property, that person has to use certified mail?
What she said was the Government does that anyway in forfeiture cases.
Mr. Minear: The argument against that, Your Honor, is that the Due Process Clause simply specifies the constitutional minimum.
The Government can make a decision to provide more process than is necessary.
Unidentified Justice: Fine.
And my question is, what is... if you're in the Government, aside from... well, it's a little easier.
Is there any policy reason for not doing it?
Mr. Minear: The reason... there... there are several reasons for not recognizing this as a... a general constitutional standard.
One is the fact that it would have to be applied to other analogous situations at least by a parity of reason--
Unidentified Justice: All right.
And the reason that that's wrong is because?
I mean, the harm that it will do it other analogous situations.
Give me an example of some serious problem that would be caused by such a rule.
Mr. Minear: --The rule would, first of all, equire, for instance, as the Chief Justice has pointed out, similar service on the armed services.
It also would apply to other situations that might not be documented in the record.
For instance, it's my understanding that the Postal Service delivers mail to dormitories and residential halls in bulk for distribution to the people that live in those halls.
Unidentified Justice: So, I want an example, since you're writing the address anyway... I want an example of the problem that would be caused by saying you not only have to write the address, you also have to send it certified, whether it's to dormitories, armed forces, prisoners, or anyone else in the world.
What's the actual practical problem that would cause the Government?
Mr. Minear: --Well, I cannot say that the Government cannot overcome that difficulty, because it does in fact use certified mail.
But the problem is should the Court erect that as a constitutional standard, and the difficulties with erecting that as a constitutional standard, as I pointed out before, is it will be very difficult to cabin that to a wide variety of other situations--
Unidentified Justice: With certified mail, you have to get a signature from the recipient, whereas with ordinary mail, you can put it in the slot in your mailbox.
In other words, it's often difficult to obtain the certified mail signature in a way that it wouldn't be to get the ordinary mail slot.
Mr. Minear: --That's correct.
And, for example--
Unidentified Justice: But shouldn't it be difficult if you're going to take $20,000 away from them?
Mr. Minear: --Your Honor, but again, this case is on... on par with other cases that involved similar amounts of money.
And with regard to the signature... obtaining the signature, my suggestion is it might be that the litigation will shift from the assertions that we think in many cases are... are untrue, that the person did not receive the notice, that, well, a guard signed for me and never actually... I did not refuse to receive it and a guard simply signed and said that I refused.
What we're trying to do from a policy perspective, from the Bureau of Prisons' perspective, is to eliminate the sort of wasteful litigation that takes place over assertions.
Unidentified Justice: Mr. Minear, the Third Circuit has apparently adopted a test that requires the Government to show a little more than that it dropped a notice in the mail, and that, in fact, the Government must show that procedures at the receiving facility, the prison, were reasonably calculated to deliver notice to the intended recipient.
Mr. Minear: Yes.
Unidentified Justice: Is that a... a standard that the Government would find satisfactory?
Mr. Minear: We disagree with that, Your Honor, for the reasons set forth in Judge Alito's dissenting opinion on... on that ground; namely, that it imposes burdens that are not necessary.
The burden is on the person who's raising the constitutional challenge to show the deficiency in the procedures, and no deficiency in the procedures has been shown.
Unidentified Justice: But your... your argument, it seems to me, is premised on the fact that forfeiture is like an in rem proceeding and it's just different.
Assume with me... I'm not sure that this is... assume that there's a constitutional due process requirement for personal service unless there's some showing of unavailability in the routine case for contract and tort.
Why should this be any different?
Mr. Minear: The reason... the reason why--
Unidentified Justice: That may be an heroic assumption.
I'm not sure that's true.
I think... let me go back.
Do you know of any State which in an ordinary civil action allows service by mail as a routine matter?
Mr. Minear: --I don't know of--
Unidentified Justice: Absent unavailability or the fact that the person is avoiding the process server or something like that?
Mr. Minear: --I don't know of any State that allows ordinary mail.
I believe that a number of States have adopted certified mail with return receipt requested.
I believe that California follows that pattern.
And in fact, the Federal rules that provide this optional method were based on that... on that approach.
Unidentified Justice: Okay.
But then... then going back to the other question, it seems to me your case is premised on the assumption that this is a forfeiture in rem type, different action than... than a routine contract or tort action.
Mr. Minear: Well, we certainly do think it falls on the side of the... of the line that this other... the other cases of this Court demarcs, namely probate proceedings, tax sales, condemnation proceedings, notice of forcible entry and detainer proceedings, which are basically ejectment proceedings.
All of those types of proceedings have involved situations where this Court indicated that notice by ordinary mail would be sufficient.
Now, we go beyond that.
We do provide certified mail as... as a matter of policy.
And it serves an important policy--
Unidentified Justice: May I ask you?
This is prompted by Justice Scalia's question.
Does the Government have any special procedures for people in the military?
Mr. Minear: --I'm not aware of any special procedures that... that we provide in those situations.
For instance, if there was forfeiture--
Unidentified Justice: And I should think there's a lot of mail that might... addressed to a serviceman that might be signed for by the mail orderly or something.
He may never get the mail.
I'm just wondering if the... there's nothing in the record about that, is there?
Mr. Minear: --No.
There's nothing in the record and it's not clear to me at all that if there was a forfeiture that was directed to a serviceman, it would be treated any differently.
Unidentified Justice: What about the... the immunity while the person... there's an immunity that governs people in the military during the time.
Is it... what is that statute?
The Soldier's and Sailor's Civil Relief Act.
Mr. Minear: Yes, and I'm not sure how that would apply in this situation.
It might very well toll the type of requirement--
Unidentified Justice: It would toll the statute of limitations because the person could assert immunity for the period that they're in service.
Mr. Minear: --Yes.
I'm simply not certain how that would apply.
But I do know that for general civil procedures... for civil forfeitures, the regulations of the FBI do provide mechanisms such as mitigation and remission that can ameliorate some of the hardships, where a party can actually show that there was nonreceipt.
Unidentified Justice: But can I ask you a question that puzzles me about this?
The... even before the current regulations, there was this special mail category and several things fell into it, including letters that the prisoner would get from the attorney.
Those have to be opened in the presence of the prisoner?
Mr. Minear: That's correct.
Unidentified Justice: And then there was this category called law enforcement.
And why wasn't a notice of this character categorized as law enforcement and therefore put within the special mail category?
Mr. Minear: I think for a short while the DEA and the FBI did follow the practice of denominating certain mails as special mail.
I'm not sure if the special mail category existed in 1988.
I don't think the record is clear on that.
I would point out, however, that under the Bureau of Prisons operations memorandum, there is more protection to providing it by certified mail rather than by special mail, primarily because of the long period of retention of the log books for certified mail.
And so, the practice for... the current practice of BOP--
Unidentified Justice: That applies to the Federal system, but the rule we're working with today would apply to State forfeitures as well, the State prisons and the like.
So, your rules don't necessarily tell us what would happen in a... to a State prisoner.
Mr. Minear: --No, they do not, although I think that the... the Court can... can safely assume that State prisons do, in fact, provide for mail delivery to their prisoners.
Unidentified Justice: Would you just comment on the suggestion that your opponent has made, in effect, that there really ought to be a special rule for people who are in the custody of the Federal Government?
And I assume with Justice Scalia that would include military personnel too.
Is there... would it make sense to say that when they know darned well where a person is, there's no reason to have three publications in the local newspaper?
You just make sure you get it to... to where the man is.
Mr. Minear: Well, there's no reason to depart... that's certainly... the fact that we know where the person is, certainly does dictate that we contact the person by mail, and that's inconsistent with Mullane and its progeny, that where the address is reasonably ascertainable, the person should be contacted by mail.
The fact that we have the person under our control I don't think adds anything to that.
The basic question is, is this notice reasonably certain to reach the inmate?
And if it does, it doesn't really matter if he's at a location of our choosing or some other location.
It's simply what's important here is, is this method, is the procedure reasonably certain to provide actual notice?
Unidentified Justice: Is there any court action... if you accepted your... your points and said, look, they send it to the prison.
It's signed for in the prison.
So, up to there, it's certified.
And then a person regularly picks it up, and this person did, and then delivers it to the cell.
Suppose the picker-upper either maliciously, negligently, or deliberately didn't give it to the prisoner.
Would the prisoner have any kind of claim under the Tort Claims Act?
Mr. Minear: I think not under the Tort Claims Act because it does exclude intentional torts.
There might be the... the opportunity for either seeking redress through the prison administrative remedies or through a Bivens type action.
But certainly the problem there--
Unidentified Justice: --Bivens type action.
It must be that there's a constitutional right or... I mean, that's... but... but is under the Torts Claims Act negligence?
Mr. Minear: --Under negligence?
There is conceivably an opportunity to seek damages based on negligence, although you'd have to show an absence of... of due care.
In the case of the Government, the regulations here do certainly provide the sort of reasonableness that we think compliance with would... would satisfy the standard.
Unidentified Justice: Let me make sure I understand your position on one point.
Is it your view that that even if you had not use certified mail in this case, but just used regular mail and an affidavit by the Secretary that it was mailed and so forth, that that would be constitutionally sufficient?
Mr. Minear: Yes.
It's our view that that would be constitutionally sufficient.
The procedures that we use, with regard to certified mail, are something that we do beyond constitutional requirements in order to... primarily to ensure that we can disprove false claims of nonreceipt.
Unidentified Justice: Mr. Minear, am I correct that the... that the current method of simply providing written notice is... you... you maintain that that is method that Congress has specified in 19 U.S.C. 1607(a)?
Mr. Minear: The method of... the requirement of providing written notice I believe is in 1881, on page 3 of our briefs.
And all that Congress has specified is that... oh, excuse me.
It is 1607(a).
Written notice of seizure, together with information--
Unidentified Justice: This is on page 3, Mr. Minear?
Mr. Minear: --On page 3, and the... at the end of the first indented paragraph.
It provides that written notice of seizure is to be provided.
It does not specify mail--
Unidentified Justice: Shall be sent.
Mr. Minear: --Shall be sent.
Unidentified Justice: Shall be sent.
Mr. Minear: To each party--
Unidentified Justice: What do you think that means?
How does one normally send things?
Mr. Minear: --Well, normally by mail, and we think that it's--
Unidentified Justice: It doesn't say shall be sent by certified mail.
I think it's... a fair reading of what Congress thought was adequate was... was by mail.
Mr. Minear: --Yes.
I think that by ordinary mail.
And I think... as I say, the certified mail procedure is something that the Bureau of Prisons and the agencies have adopted in order to disprove false claims of nonreceipt.
That's its principal purpose.
But it's our position that ordinary mail is sufficient here as it would be in the wide variety of other cases, comparable other cases, this Court has addressed.
Unidentified Justice: How do you think the Sixth Circuit standard differs from the Third Circuit's and the Fourth's?
Mr. Minear: I think as a practical matter, Your Honor, there's primarily a question of the burden of proof.
Under the Sixth Circuit's standard, we are simply... if we are challenged, if there's a challenge to whether mail was... was received or not, it's the obligation of that party who's raising the challenge to prove the lack of reasonableness.
Unidentified Justice: Well, but here the Government is seeking to forfeit property from someone.
Maybe it's not unreasonable to think that the Government has the burden of proving that notice was given or reasonably calculated to be given.
Mr. Minear: Well, the Government met that burden in this case, but again, we don't think that that should be the test.
Rather, we think that it's the obligation of the party to show that... what defects are necessary.
And in this case, the only defect... the only proof of inadequacy that petitioner showed was his claim that he did not receive the notice, and we in return indicated there were procedures in place that would have ascertained the mail.
Now, because the issue is joined, it's likely the Government would be required or would find it necessary or useful to put forward information about procedures.
But the problem with the Third Circuit standard is it requires that we, ex ante, at the very beginning of the process, go through and determine what procedures are in various prisons.
And that doesn't seem particularly... that seems particularly inappropriate with regard to State prisons where we think it's reasonable for us to send... to mail the receipts to the prisons with the expectation that those State prisons will forward the mail appropriately.
Unidentified Justice: Mr. Minear, we have a smattering of courts of appeals cases addressing the issue that we've got today, but beyond that, I don't know how much litigation there is about this.
Do we have any indication of how much time in forfeiture cases is spent litigating the question of notice?
Mr. Minear: I don't know the answer to that, Your Honor.
As we point out in the brief, in the year 2000, the Government, the DEA and the FBI, sent out roughly 9,000 notices of forfeiture to their incarcerated prisoners.
Now, how many of those are contested, I don't know the answer to that, but certainly there is the possibility of a substantial clog on the courts, particularly over claims of nonreceipt which are so easily made.
Unidentified Justice: Well, except that I... I don't know that the... that that argument really favors you.
There would be certainly some questions of... of adequacy of signature and so on.
But if there were a... a certified mail kind of signature requirement, I'm guessing that institutionally it might be of some help to the courts because I'm... I am assuming that in most cases there wouldn't be any contest.
If the Government had the signature, it would go forward.
If it didn't have the signature, it would wait until it got one.
So, I am... I am assuming that, knowing nothing, if I don't know any facts beyond what I know now, that there might be an institutional advantage in a rule that required the... the kind of proof that... that your friend on the other side wants.
Mr. Minear: Your Honor, I think that... you know, that the Department of Justice, and the Bureau of Prisons in particular, has tried to be helpful in that regard with... with regard to providing this type of process.
But we simply do not believe that it's required by the Due Process Clause and was not required to be in place in 1988 when this case arose.
Unidentified Justice: But would you... would you agree that there can be an institutional consideration in a closed case in deciding what due process does require?
Mr. Minear: That certainly is a factor that the Court could weigh, but again--
Unidentified Justice: Well, you'd have no problem if we... if we held the way you've asked us to hold.
I mean, that... that institutional problem would disappear if you put it in the mail and there are prison procedures in place, as there are in every prison, everything is okay.
There wouldn't be any litigation about that.
There wouldn't be any litigation.
Mr. Minear: --Well... well, no.
No, there isn't, but there are also State prisons that do need to determine what procedures they would follow.
And my guess is there are a large number of State prisons that follow the practice that was in place in 1988, namely that certified mail may be signed by the... by the prison officials, but they may not have recorded signatures with regard to the actual receipt by the inmate.
Unidentified Justice: And you think it's not reasonable for the Government go assume that the State prison procedures are adequate to get mail to State prisoners.
You don't think that that's reasonably calculated to get mail to State prisoners.
Mr. Minear: We think it is reasonably calculated.
Unidentified Justice: So, if we held that this is a reasonable... sending it by mail is a reasonable way to do it, you wouldn't have any more of an institutional problem.
Mr. Minear: Well, no, we wouldn't.
At the same--
Unidentified Justice: But if we... if we said that because there is a gap between mail delivery to a prison and delivery to a prisoner and, for that reason, there must be some indication of the procedure for getting the mail to the prisoner, then you might have a... a problem and there might be an institutional advantage in a signature rule.
Mr. Minear: --Well... well, that's correct.
But again, I think that the baseline, the constitutional baseline, here should be that ordinary mail suffices, and it's left to the--
Unidentified Justice: I don't understand why it's... it's intuitively obvious that ordinary mail suffices when we have a situation here which is different from the situation covered by the... the ordinary mail.
In the ordinary mail situation, the mail is delivered to someone's post office box or... or a mailbox, and that box is under the control of the addressee.
We don't have that here.
We have a... we have a gap between that point and the point at which the mail gets to a prisoner.
And that's why it doesn't seem obvious to me that merely adopting an ordinary mail rule is appropriate to these circumstances at all.
What am I missing?
Mr. Minear: --Your Honor, I think what... what you see here is the proceedings below validated the fact that ordinary mail would suffice, the fact that there are mail--
Unidentified Justice: The proceedings below didn't... as I understand it, did not stop with proof that the letter was mailed.
The proceedings below involved an... an indication of what the prison did with the mail when it got it in order to get that mail to the prisoner.
Isn't that correct?
Mr. Minear: --Well, perhaps the answer to your question, Your Honor, is that this Court can certainly affirm the decision below and say that the procedures below were adequate.
It would be our view, though, that the Court ought not to foreclose the possibility that ordinary mail would suffice.
Unidentified Justice: Mr. Minear, are there... do you know whether there are more prisoners incarcerated in prisons than there are college students living in dormitories to whom the mail is not delivered personally or... or individuals living in high rise apartment buildings where the mail is... is sorted downstairs and not delivered by the... by the postman to their... to their own room?
Mr. Minear: I do not know the answer to that, Your Honor.
Unidentified Justice: That's a problem for all those people, just as it is for prisoners.
They have to rely on whatever institution they're in getting the mail to them.
Mr. Minear: Yes.
Although I would draw a distinction between the apartment building where oftentimes the mail is provided... is sorted by the mail... by the U.S. Postal Service, put into individual boxes, and the dormitory residential hall.
I think the Postal Service does draw a distinction between apartment buildings and dormitories in that regard.
Unidentified Justice: Mr. Minear--
--What about a hospital?
--there was a period when mail was not always routinely delivered to prisoners.
Sometimes it was censored and all the rest.
Would you say that ordinary mail would have been sufficient in that period of time?
Mr. Minear: Yes.
Well, we think... again, there are--
Unidentified Justice: The warden could just put it on the shelf and not even give it to the prisoner and there would be no remedy at all.
Mr. Minear: --Obviously, if there is... if there is reason to believe by the party that's sending notice the mail will not... that ordinary mail will not suffice, then due process may require that additional steps be taken.
Unidentified Justice: Mr. Minear, in the... in the hospital setting, the Government has a claim against someone, knows that person is hospitalized, sends ordinary mail to the hospital for the contract claim, the tort claim, whatever.
Is the Government saying that for an individual it is enough that mail is sent to that person care of an institution, no return receipt requested, that will do to satisfy due process notice requirements?
Mr. Minear: Your Honor, I think that it would for this reason, that if a return address is provided and the mail is not delivered by the hospital, we can expect the hospital to send the mail return it to sender.
Upon learning that, the Government may be on an... under an obligation at that point--
Unidentified Justice: But suppose the hospital doesn't?
Suppose all we know is that this mail... well, I think your time is up.
Mr. Minear: --Okay.
Thank you, Your Honor.
Unidentified Justice: Thank you, Mr. Minear.
Ms. Zieve, you have 2 minutes remaining.
REBUTTAL ARGUMENT OF ALLISON M. ZIEVE ON BEHALF OF THE PETITIONER
Ms Zieve: First of all, I'd like to address the... the suggestion that these cases are about false claims.
Mr. Dusenbery actually made claims... tried to get return of property of eight categories of forfeited property in this case and in the one cited at 201 F. 3d 763.
As to seven of the eight categories, it was proven that he didn't get the notice either because it wasn't sent at all or it was sent to the wrong place.
So, there's no reason to think that he's lying about the eighth.
In addition, this is not a mail notice case.
We're not talking about the adequacy of mail notice to a mortgage company or a creditor of an estate.
This case is more comparable to a situation in which you have a process server go out and you prove that you gave the notice to the process server, but you don't ask him or her to ever give you any verification that it was served.
Certified mail... counsel suggests it could be above the constitutional minimum, but applying this Court's framework, this Court's test for assessing the adequacy of notice, we know it's not above the constitutional minimum because it will reduce the risk of erroneous deprivation at minimal burden, and we know it reduces the risk because it can only be... the notice can only be delivered, if their signature is required, to the addressee.
It will not be sent as in a private residence.
It won't be misdelivered to your neighbor's house if you have to sign for it.
In a prison, it's not going to be misdelivered to the next cell or bundled with something else.
The inmate is going to have to sign for it.
And finally, the Third Circuit, which did not require actual notice, did so only because of concern about the evidentiary burden it would place on the Government to have that standard, but the Government's current--
Unidentified Justice: Thank you, Ms. Zieve.
Ms Zieve: --Thank you.
Chief Justice Rehnquist: The case is submitted.
Argument of Chief Justice Rehnquist
Mr. Rehnquist: I have the opinion of the Court to announce in No. 00-6567, Dusenbery against the United States.
The issue before us in this case is whether the FBI's sending of a forfeiture notice by certified mail to a prisoner housed at a federal correctional facility with procedures for delivering the mail to its inmate satisfies due process.
We hold that it does.
Petitioner was arrested in 1986 at a house trailer in Ohio.
Later that day FBI officers executed a search warrant for the premises and seized drugs, guns, miscellaneous property items in a total of some $21,000 in cash.
Two years after the petitioner pleaded guilty to drug possession charges, the FBI obtained an order from the District Court to destroy the firearms which were no longer needed as evidence, and started the process of administratively forfeiting the cash and other properties seized under the Controlled Substances Act.
It sent notice of its intention to forfeit the cash by certified mail to petitioner at the federal prison where he was being held.
It also published legal notice for three weeks in a Cleveland newspaper.
The FBI received no response from these notices and so it declared the cash forfeited.
Nearly five years later, petitioner sought return of this property in the District Court.
The District Court held the FBI's notice by certified mail satisfied due process.
The Court of Appeals affirmed.
In an opinion filed with the Clerk of the Court today, we affirm that judgment.
This case is governed by the principle announced in Mullane versus Central Hanover Bank & Trust Company.
There we said that when the government seeks to deprive persons of property, the due process clause requires notice reasonably calculated under all the circumstances.
To apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.
In this case, the government showed that notice was sent by certified mail to petitioner at the correctional facility where he was located.
At that facility, prison mail room staff went to the city post office everyday to pick up inmate mail, sign for the certified mail and entered it in a prison mail room logbook.
A member of the inmate' Unit Team then sign for the certified mail before taking it in from the mail room and delivering it the inmate during mail call.
The FBI's method of sending the notice was reasonably calculated, we hold to apprise petitioner the fortifier.
The claim by petitioner that he did not actually received the letter is insufficient to render the notice constitutionally defective.
None of our cases have required proof of receipt instead the Government may defend its chosen method on the ground that it is reasonably certain to inform those effected.
Justice Ginsburg has filed a dissenting opinion in which Justices Stevens, Souter and Breyer joined.