John E. Wiren v. Donald Eide, as District Director of the Bureau of Customs

542 F.2d 757

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 1976
• Docket: 74-1169
• Status: Published

Opinions

KOELSCH, Circuit Judge:

On his return from Canada in February, 1972, appellant Wiren and the three passengers in his 1970 Volkswagen were stopped and searched at the Blaine, Washington, border station. When a body search of one of the passengers revealed a small quantity of hashish, customs agents seized Wiren’s car as a vehicle used to transport contraband into the United States.¹ Immediately thereafter, Wiren — claiming he had no knowledge of the presence of hashish — petitioned the Secretary of the Treasury under 19 U.S.C. § 1618 for a remission or mitigation of the impending forfeiture of his car.² That petition was denied, as was a subsequent appeal to the Bureau of Customs.

In November, 1972, after making an informal telephone inquiry, Wiren received by unregistered mail a letter informing him of the government’s intention to forfeit the vehicle which it had appraised, pursuant to 19 U.S.C. § 1606, at less than $2500. He then filed a claim in accordance with the provisions of 19 U.S.C. § 1608, but did not post the requisite $250 bond because, as he now alleges, he was indigent at the time. However, there being no statutory procedure for Wiren to call this indigent condition to the attention of the Bureau of Customs and no procedure for him to halt the summary forfeiture mandated by 19 U.S.C. § 1609, Wiren filed this action along with a motion to proceed in forma pauperis and an affidavit of poverty. He sought a determination of the constitutionality of the notice, bond, and burden-of-proof provisions contained in the federal statutory forfeiture scheme, a hearing on the merits of his claim that the seizure and impending forfeiture of his car are unconstitutional, and the return of his car together with damages.³ Appellees agreed to stay forfeiture proceedings pending disposition of this action.

The district court granted appellees’ motion to dismiss, although it is uncertain from that order whether the dismissal was predicated on jurisdictional grounds or on the merits. We are clear that jurisdiction did exist and that Wiren’s procedural claims entitle him to a hearing on the merits of his substantive claim. We therefore remand the matter for a clear disposition on the merits of the substantive claim.

The district court had subject matter jurisdiction of this action. Insofar as Wiren’s claim is one for money damages not exceeding $10,000 in amount, the district court was empowered to reach the merits of that claim by the Tucker Act, 28 U.S.C. § 1346(a)(2). Simons v. United States, 497 F.2d 1046, 1049-1050 (9th Cir. 1974); Wells v. United States, 280 F.2d 275, 277 (9th Cir. 1960); Carriso, Inc. v. United States, 106 F.2d 707, 712 (9th Cir. 1939). See also Bramble v. Richardson, 498 F.2d 968, 970 (10th Cir. 1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656 (1974); Pasha v. United States, 484 F.2d 630, 632-633 (7th Cir. 1973); United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882, 884-885 (6th Cir. 1973); Menkarell v. Bureau of Narcotics, 463 F.2d 88, 90 (3d Cir. 1972); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-1357 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 996-998 (S.D.N.Y.1969); and cases therein cited.

Similarly, § 10 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, also conferred subject matter jurisdiction on the district court. Despite a split in the circuits on the question, see, e. g., Sanders v. Weinberger, 522 F.2d 1167, 1169-1170 (7th Cir. 1975), this court has repeatedly taken the position that § 10 of the APA embodies an independent grant of subject matter jurisdiction to review agency action, irrespective of the amount in controversy, unless the questioned action is committed by law to the discretion of the agency or there is clear and convincing evidence of congressional intent to preclude review expressed in the governing statute or its legislative history. See Proietti v. Levi, 580 F.2d 836, 838 (9th Cir. 1976); Rothman v. Hospital Service of Southern California, 510 F.2d 956, 958-959 (9th Cir. 1975); Brandt v. Hickel, 427 F.2d 53, 55-56 n.2 (9th Cir. 1970); State of Washington v. Udall, 417 F.2d 1310, 1319-1320 (9th Cir. 1969); Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). See also Strickland v. Morton, 519 F.2d 467, 468 (9th Cir. 1975); Ness Investment Corp. v. U. S. Department of Agriculture, Forest Service, 512 F.2d 706, 715 (9th Cir. 1975); C. Byse and J. Fiocca, Section 1861 of the Mandamus and Venue Act of 1962 and “Nonstatutory Judicial Review of Federal Administrative Action, 81 Harv.L. Rev. 308, 326-331 (1967); K. Davis, Administrative Law Treaties § 23.02 (Supp.1970). While the remission or mitigation of lawful seizures and forfeitures is a matter committed to agency discretion, see 19 U.S.C. §§ 1613 and 1618,⁴ the determination of the propriety of the seizures and forfeitures themselves is not. See Simons, supra, 497 F.2d at 1049. We think it apparent that subject matter jurisdiction is additionally furnished by § 10 of the APA.⁵

Turning now to Wiren’s procedural contentions, we note that his claim of entitlement to pre-seizure notice and opportunity for a hearing was resolved against him in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There the Court held that the absence of pre-seizure notice and the opportunity for a hearing in the context of forfeiture proceedings is not a denial of due process; the seizure of property for purposes of forfeiture is an “extraordinary situation” justifying postponement of notice and hearing requirements. 416 U.S. at 676-680, 94 S.Ct. 2080.⁶

Wiren nevertheless contends that the post-seizure notice provision contained in 19 U.S.C. § 1607 — providing solely for notice by publication — violates due process because it prescribes a method of notice not “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

We are sympathetic to that claim. At least two federal courts dealing with the question have ruled that the notice by publication prescribed by § 1607 is inadequate to afford due process with respect to persons such as registered owners of seized vehicles whose identities and addresses are known or easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. Menkarell v. Bureau of Narcotics, 463 F.2d 88, 93-95 (3d Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 998-999 (S.D.N.Y. 1969). See also Robinson v. Hanrahan, 409 U.S. 38, 39-40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972). Cf. Calero-Toledo, supra, 416 U.S. at 680 n.15, 94 S.Ct. 2080.

However, we conclude on balance that Wiren’s receipt of actual notice deprives him of standing to raise the claim and therefore do not reach it. Having received such notice, Wiren has clearly been accorded due process in the application of the statute as to him personally. The essence of his claim is therefore that the statutory notice procedure is inadequate under the fifth amendment with respect to supposed third parties who receive no actual notice of the seizure and impending forfeiture of their property. The law governing the standing of litigants to assert constitutional claims of third parties not before the court is anything but clear.⁷ However, we are doubtful that Wiren has a sufficient interest in challenging the statute’s notice provision to satisfy the “case or controversy” requirement of Article III of the Constitution. The Court has expressed concern lest the standards of that requirement become blurred, see Eisenstadt v. Baird, 405 U.S. 438, 443 n.4, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and here we think that Wiren’s allegations of injury-in-fact are insufficient to sustain it. See generally Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1975).

Moreover, even if a sufficient “case or controversy” were presented with respect to the statutory notice provision, we think the Court’s self-imposed rules of restraint, see United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), would be controlling. True, there does exist a line of Supreme Court authority containing language to the effect that a litigant is not deprived of his ability to challenge a statutory notice provision simply because he may have received as a matter of administrative favor or grace, extra-official or casual notice not prescribed by the statute. See Wuchter v. Pizzuti, 276 U.S. 13, 24-25, 48 S.Ct. 259, 72 L.Ed. 446 (1928); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424-425, 35 S.Ct. 625, 59 L.Ed. 1027 (1915); Central of Georgia Railway Co. v. Wright, 207 U.S. 127, 138, 28 S.Ct. 47, 52 L.Ed. 134 (1907); Security Trust and Safety Vault Co. v. Lexington, 203 U.S. 323, 333, 27 S.Ct. 87, 51 L.Ed. 204 (1906). But those cases must be read in light of the Court’s subsequent pronouncements in Raines, supra, 362 U.S. at 20-24, 80 S.Ct. 519. Moreover, the existence of standing in Wuchter has been explained as being predicated on the nonseparability of application of the challenged statute there, see Sedler, supra note 6, 71 Yale L.J. at 609, while here there is clear congressional intent that the challenged statute have separable application. 19 U.S.C. § 1652. See also National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), otherwise distinguishing Wuchter. We recognize that our ruling raises a risk that the due process rights of innocent third parties may thereby be diluted, but our concern is somewhat diminished by the observation that persons who had failed to receive actual notice were nevertheless capable of vindicating their rights in Menkarell and Jaekel.

m No such problem of standing exists with respect to Wiren’s challenge to the statutory bond requirement. Absent a constitutional deficiency in the application of that provision here, Wiren’s 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 appellees to proceed with the summary forfeiture and thereby disposing of the case in its entirety. We therefore examine the merits of his claim.

Broadly stated, Wiren’s contention is that the $250 bond requirement violates his rights to due process and equal protection⁸ under the fifth amendment; he forcefully argues that the application of that requirement here operates to deprive him of a significant property interest without according him the opportunity for a hearing solely because he is indigent. We agree.

The federal statutory forfeiture scheme uniformly accords owners of seized property valued at more than $2500 the opportunity for a judicial hearing. Under 19 U.S.C. § 1610, the forfeiture of property so valued is permitted solely by means of judicial condemnation. Non-indigent owners of property valued at less than $2500 are likewise accorded the opportunity for a judicial determination if they file a claim with the appropriate customs officer and post a $250 bond. See 19 U.S.C. § 1608, supra note 2.

However, indigent persons claiming an interest in seized property valued at less than $2500 are treated in an entirely different fashion. By force of the statute, their economic inability to post the bond deprives them of the opportunity for any hearing at all. Yet it is these persons to whom the deprivation of property is proportionately most grievous.

It is true that the bond requirement may operate to prevent the government’s being deterred from pursuing a meritorious condemnation because the expense of the proceeding may well exceed the value of the property which the government seeks to condemn. See Colacicco v. United States, 143 F.2d 410, 411-412 (2d Cir. 1944) (L. Hand, J.). However, we cannot believe that Congress either intended to, or may consistently with the Constitution, make enforcement of the forfeiture laws, the primary contemporary justification of which is punishment and deterrence, see Calero-Toledo, supra, 416 U.S. at 681-682 n.19, 686, 94 S.Ct. 2080, a profitable or self-supporting operation by denying the fifth amendment rights of the poor. We can only conclude that in this case — under both due process and equal protection analyses — the fifth amendment prohibits the federal government from denying the opportunity for a hearing to persons whose property has been seized and is potentially subject to forfeiture solely because of their inability to post a bond.

In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Court held that due process prohibits a state from denying, solely because of inability to pay court filing and other fees, access to its divorce courts. However, in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the Court held Boddie inapplicable to a challenge to filing fee requirements by an indigent seeking a discharge in bankruptcy. And in Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), it concluded that Kras, not Boddie, governed a challenge to a state court filing fee by an indigent seeking review of agency reductions in welfare payments, where evidentiary hearings on the administrative level provided a procedure, not conditioned on payment of a fee, through which appellants could seek redress.

We think the case before us is governed by Boddie, not Kras and Ortwein. While the Court in Kras indicated that the claimant there had no constitutional right to a discharge in bankruptcy, here Wiren clearly has a right to a hearing of some sort, and a judicial hearing — though perhaps not otherwise constitutionally required — is the only form of hearing contemplated by the statutory scheme. In this connection, we do not consider remission or mitigation proceedings an adequate substitute; in those proceedings, the granting of relief is purely a matter of administrative grace. Once an administrative agency has seized property for purposes of forfeiture, the sole remedy of a claimant, absent a purely voluntary remission or mitigation, is a court judgment that forfeiture is inappropriate. The statutory bond requirement— at least as it is applied here — denies that remedy to the indigent claimant. Moreover, the mere possibility that such a claimant may have the perseverance and insight to commence a collateral action in forma pauperis, as Wiren did here, coupled with the more remote possibility that the agency may voluntarily suspend forfeiture proceedings pending disposition of that action, also strikes us as inadequate. That procedure is complicated, burdensome, and — as the case before us amply demonstrates — time-consuming, neither anticipated by the statutory scheme nor adequate to insure protection of an indigent claimant’s rights. Turning to the question left unanswered by Judge Hand in Colacicco, supra, 143 F.2d at 411, 412, we reject the proposition that the for-ma pauperis provisions of 28 U.S.C. § 1915(a) afford an indigent claimant a means of obtaining relief from the bond requirement. That section applies solely to court proceedings, see Boyden v. Commissioner of Patents, 142 U.S.App.D.C. 351, 441 F.2d 1041, 1044 (1971), cert. denied, 404 U.S. 842, 92 S.Ct. 139, 30 L.Ed.2d 77 (1971); cf. Kras, supra, 409 U.S. at 439-440, 93 S.Ct. 631, while here under the statute a failure to post bond mandates summary administrative forfeiture and the forbearance of court proceedings in which the provisions of § 1915 might be applied.

Having determined that the instant application of the bond requirement operated unconstitutionally to deprive Wiren of the opportunity for a hearing, we might in other circumstances return the cause to the district court with directions to order appellees to commence the judicial condemnation action contemplated by the statute. Here, however, that circuitous procedural route serves no purpose save additional delay. Wiren is entitled to a hearing on the merits of his substantive claim; since he has raised it in the court below, we see no*reason why the district court should not now consider and clearly dispose of it.⁹

VACATED AND REMANDED.¹⁰

1 . 19 U.S.C. § 1595a(a). See also 18 U.S.C. § 545 and 21 U.S.C. §§ 881 and 952.

2 . The “heart” of the federal statutory forfeiture scheme, at least for purposes of this appeal, consists of the following provisions of Title 19:

Ҥ 1606. Same [Seizure]; appraisement

“The appropriate customs officer shall determine the domestic value, at the time and place of appraisement, of any vessel, vehicle, merchandise, or baggage seized under the customs laws.

Ҥ 1607. Same; value $2,500 or less

“If such value of such vessel, vehicle, merchandise, or baggage does not exceed $2,500, the appropriate customs officer shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct. For the purposes of this section and sections 1610 and 1612 of this title merchandise the importation of which is prohibited shall be held not to exceed $2,500 in value.

Ҥ 1608. Same; claims; judicial condemnation

“Any person claiming such vessel, vehicle, merchandise, or baggage may at any time within twenty days from the date of the first publication of the notice of seizure file with the appropriate customs officer a claim stating his interest therein. Upon the filing of such claim, and the giving of a bond to the United States in the penal sum of $250, with sureties to be approved by such customs officer, conditioned that in case of condemnation of the articles so claimed the obligor shall pay all the costs and expenses of the proceedings to obtain such condemnation, such customs officer shall transmit such claim and bond, with a duplicate list and description of the articles seized, to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property in the manner prescribed by law.

Ҥ 1609. Same; summary of forfeiture and sale

“If no such claim is filed or bond given within the twenty days hereinbefore specified, the appropriate customs officer shall declare the vessel, vehicle, merchandise, or baggage forfeited, and shall sell the same at public auction in the same manner as merchandise abandoned to the United States is sold, or otherwise dispose of the same according to law and shall deposit the proceeds of sale, after deducting the actual expenses of seizure, publication, and sale in the Treasury of the United States.

Ҥ 1610. Same; value more than $2,500

“If the value of any vessel, vehicle, merchandise, or baggage so seized is greater than $2,500, the appropriate customs officer shall transmit a report of the case, with the names of available witnesses, to the United States attorney for the district in which the seizure was made for the institution of the proper proceedings for the condemnation of such property.”

3 . Though Wiren’s amended complaint contains an apparent request for injunctive relief, this action is not one in which the empanelment of a three-judge court is required under 28 U.S.C. § 2282. That Wiren seeks no injunctive relief such as would necessitate a three-judge court is made plain by his statement of the nature of the case in each of his complaints (R. 1, 7), by his failure plainly to request a three-judge court as required by local rule of the United States District Court for the Western District of Washington, by his clear written concession at two separate junctures in the record that he seeks no injunctive relief (R. 32-33, 57), and by his similar admission in brief (Pet. for Reh. 1, 3). In this connection, the record before us bears a striking similarity to that described by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), in which — despite a request for injunction in the third amended complaint — the record indicated “that the issues were framed so as not to contemplate any injunctive relief.” 372 U.S. at 153, 83 S.Ct. at 559. Under Mendoza-Martinez, a mere request for declaratory relief, not coupled with a request for injunctive relief, may be disposed of on the merits by a single-judge court; if granted, such declaratory relief affects the relevant Act of Congress, if at all, “in a totally noncoercive fashion” and does not constitute an “interdiction of the operation at large of the statute.” 372 U.S. at 155, 83 S.Ct. at 560; see also New Orleans Book Mart, Inc. v. Mitchell, 318 F.Supp. 352, 353 (M.D.Fla.1970), affirmed, 401 U.S. 968, 91 S.Ct. 1199, 28 L.Ed.2d 319 (1971).

4 . But see United States v. U. S. Coin & Currency, 401 U.S. 715, 721, 91 S.Ct. 1041, 1045, 28 L.Ed.2d 434 (1971), in which the Court said of the remission/mitigation function:

“It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the courts have intervened when the innocent petitioner’s protests have gone unheeded.

5 . Assuming arguendo that the foregoing provisions fail for any reason to furnish a sufficient jurisdictional basis for the district court to reach the merits of Wiren’s claims, the supposed jurisdictional void is filled by the federal mandamus statute, 28 U.S.C. § 1361. That section provides jurisdiction to enforce a constitutional duty which — though perhaps not clear beyond all doubt at the outset of the litigation — is rendered plain by the court’s subsequent decision on the merits. Knuckles v. Weinberger, 511 F.2d 1221, 1222 (9th Cir. 1975); Workman v. Mitchell, 502 F.2d 1201, 1205-1206 (9th Cir. 1974). See also United States v. Testan, 424 U.S. 392, 401 n.5, 403-404, 96 S.Ct. 948, 954, n.5, 955-956, 47 L.Ed.2d 114 (1976), which the dissenter likens to this case. All that is required to invoke jurisdiction under § 1361 is that the constitutional claim presented not be insubstantial; for if we were bound first to determine the existence of the duty, we would be disposing of the case on its merits — an exercise wholly inappropriate in deciding the threshold question of jurisdiction.

We note parenthetically that the issuance of a writ of mandamus is an extraordinary remedy. The assumption of mandamus jurisdiction is inappropriate where an adequate remedy is otherwise available or the complaint does not sufficiently allege the existence of irreparable injury.

6 . On the other hand, once seizure is accomplished, the justifications for postponement enumerated in Calero-Toledo evaporate, see 416 U.S. at 679-680, 94 S.Ct. 2080, and due process requires that notice and opportunity for some form of hearing be accorded swiftly, and, in any event, prior to forfeiture. See, e. g., Fuentes v. Shevin, 407 U.S. 67, 88-93, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 267-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

7 . See, e.g., Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 423 nn.1-3 (1974); Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425, 464-473 (1974); Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 600-612 (1962).

8 . Wiren relies on language in Supreme Court decisions to the effect that, “while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ ” See Shapiro v. Thompson, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969) [quoting Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964), and Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)]. He argues that the fifth amendment’s due process clause imposes no less an obligation upon the federal government than the fourteenth amendment does upon the states. A recent Supreme Court decision supports that view. Weinberger v. Wiesenfield, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975).

9 . Wiren’s complaint generally outlines the circumstances of the seizure of his car and contains an allegation that Wiren himself had no knowledge that his passenger was carrying contraband. While the Court held in CaleroToledo that the applicability of forfeiture schemes to the property of innocents does not necessarily render such schemes unconstitutional, it relied heavily on the fact that the “innocent” party there had voluntarily entrusted the possession of the seized property to another, see 416 U.S. at 688, 690, 94 S.Ct. 2080. Moreover, the Court pointed out that

“it would be difficult to reject the constitutional claim of an owner . who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive.”

416 U.S. at 689-690, 94 S.Ct. at 2094 (footnote and citations omitted).

Proof that Wiren never voluntarily surrendered possession of the seized vehicle to the presumably culpable passenger, that he had no knowledge that the passenger possessed the contraband, and that his ignorance was reasonable under the circumstances might well place him beyond the reach of the general rule stated in Calero-Toledo or bring him within the exception above noted. But we leave these questions for the district court.

We note in passing that Wiren’s constitutional attack on the burden-of-proof requirements of 19 U.S.C. § 1615 appears to have been rejected in our recent decision in United States v. One 1970 Pontiac GTO, 2-Door Hardtop, 529 F.2d 65, 66 (9th Cir. 1976).

10 . With respect to Tucker Act jurisdiction, the dissenter’s conclusion is that “a complaint [which] intermingles a claim for a money judgment with the demand for equitable relief . is beyond the pale of the Act.” But as was made plain in Glidden Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 1476, 8 L.Ed.2d 571 (1962) (Harlan, J., announcing the judgment of the Court), the limitation upon which the dissent relies is “a limitation upon the remedial powers of a federal court.” (Emphasis supplied.) Logically it would follow that the limitation is properly invoked by the district court’s declining jurisdiction only in suits in which the sole relief requested is equitable in nature, not in suits in which money damages of less than $10,000 are additionally sought.

Hence the federal courts which have considered that limitation have uniformly taken great care to point out that the limitation divests a district court of Tucker Act jurisdiction only where no request for money damages has been made. See March v. United States, 165 U.S.App.D.C. 267, 506 F.2d 1306, 1310-1311 n.6 (1974); Weils v. United States, 280 F.2d 275, 277 (9th Cir. 1960); Blanc v. United States, 244 F.2d 708, 709 (2d Cir. 1957), cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686 (1953), cert. denied, 347 U.S. 927, 74 S.Ct. 530, 98 L.Ed. 1080 (1954); Lynn v. United States, 110 F.2d 586, 588 (5th Cir. 1940). See also Jersey Central Power & Light Co. v. Local Union 327, 508 F.2d 687, 698 n.31 (1975); Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974); Hunsucker v. Phinney, 497 F.2d 29, 36 (5th Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Richardson v. United States, 465 F.2d 844, 849 n.2 (3d Cir. 1972); Bower v. United States, 347 F.Supp. 1252, 1255 (W.D.Pa.1972).

The essence of the dissenting view appears to be that Tucker Act jurisdiction may not be exercised, even where it is present under the plain terms of the Act itself, where a complaint contains an additional request for relief not authorized by the Act. However, as was pointed out by the Court in United States v. Sherwood, 312 U.S. 584, 591, 61 S.Ct. 767, 772, 85 L.Ed. 1058 (1941), “the methods by which the jurisdiction of the federal courts is to be exercised” are governed by the Federal Rules of Civil Procedure, and Rules 8(a), (e)(2), and (f), which govern the construction of pleadings, clearly mandate the exercise of jurisdiction over the damages claim in the instant case.

The dissenting view also appears to rest on the conclusion that several recent Supreme Court decisions somehow altered or overruled prior law consistently applied in the circuits. The most recent of those decisions, United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), provides no support whatever for the proposition that the “intermingling” of requests for equitable relief and money damages precludes Tucker Act jurisdiction. In Testan, the Court of Claims — relying on the Tucker Act as its jurisdictional basis — had ordered the federal Civil Service Commission to reconsider a classification decision on the theory that retroactive reclassification would result in the plaintiffs’ entitlement to money damages in the form of backpay. However, the Supreme Court reversed, holding that (1) the Tucker Act confers jurisdiction only where a substantive right of action otherwise exists (424 U.S. 392 at 397-399, 96 S.Ct. 948 at 952-953, 954), and (2) neither the Classification Act nor the Back Pay Act create a substantive right to backpay for the period of the claimed wrongful classification (424 U.S. at 397-407, 96 S.Ct. at 953-957). As the Court said:

“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim — whether it be the Constitution, a statute, or a regulation — does not create a cause of action for money damages unless as the Court of Claims has stated, that basis ‘in itself can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” 424 U.S. at 401, 96 S.Ct. at 955.

Here, of course, it may be argued that Wiren is suing for money improperly exacted or retained. But even if he is not, the fifth amendment and the statutory forfeiture scheme each plainly mandate compensation, at least in restitutionary measure, to the owner of wrongfully seized property.

Neither is Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975), supportive of the dissent. In Thornton, the Court merely held it had no jurisdiction to hear a direct appeal from the district court because the empanelment of a three-judge court had been inappropriate. Under 28 U.S.C. § 2282, a three-judge court is of course required where an Act of Congress is enjoined as unconstitutional. However, since the Tucker Act confers no jurisdiction to award that remedy, a case in which the sole jurisdictional basis alleged is the Tucker Act is by definition not a three-judge case. Where a suit is brought solely under the Tucker Act, no three-judge district court is properly empaneled, and hence no direct appeal lies to the Supreme Court. But this in no way implies that a single-judge district court may not decide a claim for damages under the Tucker Act.

Nor is Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973), of assistance to the dissent. In Richardson, the Court reversed the decision of a three-judge district court which had granted the plaintiffs’ request for “declarative and injunctive” relief and had ordered the Secretary of Health, Education and Welfare to pay funds to the plaintiffs as part of its specific decree. Compare Morris v. Richardson, 346 F.Supp. 494, 500 (N.D.Ga.1972), with Blanc v. United States, supra, 244 F.2d at 709. The dissent’s reading of Richardson is refuted by the Court’s later decision in Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), in which the plaintiffs’ complaint “sought monetary damages under the Tucker Act, 28 U.S.C. § 1346(a)(2) . . . and equivalent declaratory and injunctive relief.” 410 U.S. at 579-580, 93 S.Ct. at 1159. The Court never questioned Tucker Act jurisdiction and went on to determine the merits of plaintiffs’ claim.

Similarly, in United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), the plaintiff’s claim was essentially one for a tax refund and was barred by his failure timely to file a claim for refund under 26 U.S.C. § 7422(a); thus the Court of Claims had no jurisdiction to consider the claim for money damages. And when that court nevertheless proceeded to exercise jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, the Supreme Court reversed. King held that the Court of Claims had no jurisdiction to issue declaratory judgments; it created no limitation on the Court of Claims’ Tucker Act jurisdiction to decide claims for money damages.

Indeed, the two decisions cited in recent Supreme Court opinions as the source of the rule that a district court is without power to entertain claims for equitable relief under the Tucker Act — United States v. Alire, 73 U.S. (6 Wall.) 573, 18 L.Ed. 947 (1867), and United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889) — were suits in which the only relief sought was equitable in nature. It is therefore perfectly understandable that in Glidden Co. v. Zdanok, supra, 370 U.S. at 557, 82 S.Ct. 1459, Mr. Justice Harlan recognized the rule as “a limitation on the remedial powers of a federal court” but went on to observe:

“[F]ar from serving as a restriction, this limitation has allowed the Court of Claims a greater freedom than is enjoyed by other federal courts to inquire into the legality of governmental action.”

As Mr. Justice Holmes observed more than sixty years ago in United States v. Emery, Bird, Thayer Realty Company, 237 U.S. 28, 32, 35 S.Ct. 499, 500, 59 L.Ed. 825 (1915), it is an “inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye.”

The dissenting view that the APA confers no subject matter jurisdiction on the district court is foreclosed by our prior decisions. The dissenter’s conclusion that 19 U.S.C. § 1618 vests the Secretary of the Treasury with absolute, unreviewable discretion cannot be squared with United States v. U. S. Coin & Currency, 401 U.S. 715, 721, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), and our decision in Simons v. United States, 497 F.2d 1046, 1049 (9th Cir. 1974).

Moreover, as the record shows both the Secretary of the Treasury’s denial of a petition for review and remission of the seizure and the Bureau of Customs’ denial of a supplemental appeal (see R. 42), the dissenter appears to conclude that those requests for relief were rendered invalid as a matter of law by Wiren’s failure previously to satisfy the bond requirement of § 1608. Were that conclusion correct (but we do not think it is), it would merely serve to render the bond requirement of § 1608 even more harsh and oppressive with respect to the indigent claimant.

Finally, with respect to the dissenting view that a rational basis for the § 1608 bond requirement renders it impervious to constitutional attack, we point out that the Supreme Court recently held a not-dissimilar state double-bond requirement violative of equal protection because it arbitrarily and irrationally discriminated against a class of appellants. Lindsey v. Normet, 405 U.S. 56, 74-79, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). It should be remembered that a claimant required to post the § 1608 bond will have already delivered to the government the property to which he claims entitlement — itself constituting security of up to $2500 — but the claimant’s failure to post the $250 bond will nevertheless deprive him of an initial hearing on the propriety of the seizure of that property.