UNITED STATES OF AMERICA, PETITIONER v. EIGHT THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($8,850) IN UNITED STATES CURRENCY No. 81-1062 In the Supreme Court of the United States October Term, 1981 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision, statutes, and rule involved Statement: A. The statutory and administrative context B. Facts of this case Summary of argument Argument: I. There is no general requirement in the Due Process Clause of a prompt post-seizure filing of a civil forfeiture action A. In the absence of invidious motivation or prejudice to the claimant, the mere passage of time between a seizure and the institution of a forfeiture action does not violate due B. Due process requirements are fully satisfied by the alternative procedures available to test the the lawfulness of a forfeiture seizure or to compel the filing of an unreasonably delayed judicial forfeiture suit II. Assuming there is a general due process right to a prompt judicial hearing, delay in filing the civil forfeiture action was nevertheless fully justified in this case A. The time for filing suit should be tolled during the entire period a claimant voluntarily seeks administrative remission or mitigation of a forfeiture B. The government should be excused from filing a civil forfeiture action for the period during which it is conducting a criminal investigation or prosecution relating to the seized property III. Assuming that the delay in this case violated due process requirements, dismissal of the forfeiture action brought by the United States against the seized currency is an inappropriate remedy Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 645 F.2d 836. The district court's findings of fact and conclusions of law (Pet. App. 14a-20a) are not reported. JURISDICTION The judgment of the court of appeals was entered on May 22, 1981, and a petition for rehearing was denied on August 21, 1981 (Pet. App. 13a). On November 12, 1981, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including December 11, 1981. The petition was filed on that date and granted on March 22, 1982 (J.A. 89). CONSTITUTIONAL PROVISION, STATUTES, AND RULE INVOLVED The Fifth Amendment to the Constitution provides in pertinent part: No person shall be * * * deprived of life, liberty, or property, without due process of law * * * ." 19 U.S.C. (Supp. IV) 1603 provides: Whenever a seizure of merchandise for violation of the customs laws is made, or a violation of the customs law is discovered, and legal proceedings by the United States attorney in connection with such seizure or discovery are required, it shall be the duty of the appropriate customs officer to report promptly such seizure or violation to the United States attorney for the district in which such violation has occurred, or in which such seizure was made, and to include in such report a statement of all the facts and circumstances of the case within his knowledge, with the names of the witnesses and a citation to the statute or statutes believed to have been violated, and on which reliance may be had for forfeiture or conviction. 19 U.S.C. 1618 provides in pertinent part: Whenever any person interested in any vessel vehicle, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty, thereunder, files with the Secretary of the Treasury under the customs laws * * * a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto. 19 U.S.C. 1621 provides in pertinent part: No suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs laws shall be instituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered * * * . 31 U.S.C. 1101 provides in pertinent part: (a) Except as provided in subsection (c) of this section, whoever, whether as principal, agent, or bailee, or by an agent or bailee, knowingly -- (1) transports or causes to be transported monetary instruments -- * * * * * (B) to any place within the United States from or through any place outside the United States, or * * * * * in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section. 31 U.S.C. 1102 provides in pertinent part: (a) Any monetary instruments which are in the process of any transportation with respect to which any report required to be filed under section 1101(a) of this title either has not been filed or contains material omissions or mistatements are subject to seizure and forfeiture to the United States. Fed. R. Crim. P. 41(e) provides in pertinent part: (e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. QUESTIONS PRESENTED 1. Whether due process requires the filing of a prompt judicial forfeiture action following the seizure of property believed to be forfeitable. 2. Whether the passage of 18 months in this case between the seizure of unreported currency by the Customs Service and the institution of judicial forfeiture proceedings constituted unreasonable delay, in light of the pendency of a petition for administrative remission or mitigation and of a criminal investigation and prosecution growing out of the seizure. 3. Whether, assuming the delay in this case violated claimant's right to due process, dismissal of the civil forfeiture action was an appropriate remedy. STATEMENT A. The Statutory and Administrative Context 1. Section 231 of the Bank Secrecy Act of 1970 (31 U.S.C. 1101) provides that anyone who "knowingly transports * * * monetary instruments * * * to any place within the United States from or through any place outside the United States * * * in an amount exceeding $5,000 on any one occasion shall file a report" with the Customs Service declaring, inter alia, the amount being transported. The United States is empowered to seize and forfeit "(a)ny monetary instruments * * * with respect to which any report required to be filed * * * has not been filed * * * (31 U.S.C. 1102(a)). The purpose of the forfeiture provision, as explained by the sponsor of the legislation, is to serve as a "powerful deterrent" to international currency shipments by criminals who frequently employ couriers to transfer their ill-gotten gains to foreign bank accounts. See 116 Cong. Rec. 10402 (1970) (remarks of Senator Proxmire). Thus, in keeping with general concepts governing forfeiture statutes, forfeiture of the unreported currency is authorized without any showing of unlawful purpose or intent to violate the reporting requirements of Section 1101. All that need be established is that the traveler knowingly transported currency in excess of $5,000 and failed to make the necessary report. See United States v. Four Million Two Hundred Fifty Five Thousand Six Hundred and Twenty Five Dollars and Thirty Nine Cents ($4,255,625.39), 528 F. Supp. 969, 971-972 (S.D. Fla. 1981); Ivers v. United States, 413 F. Supp. 394, 401 n.9 (N.D. Cal 1975), rev'd in part on other grounds, 581 F.2d 1362 (9th Cir. 1978). Cf. One Lot of Emerald Cut Stones v. United States, 409 U.S. 232, 234 (1972). /1/ 2. Section 1102 contains no provisions specifying the procedures to be followed with respect to the forfeiture of seized monetary instruments. The Customs Service generally follows the procedures set forth in Title IV of the Tariff Act of 1930, 19 U.S.C. 1602-1604, which govern forfeitures for violations of the customs laws, and the regulations that implement those sections. Under these procedures, once the property is seized, the responsible Customs agent is obligated to report the seizure "immediately" to "the appropriate customs officer for the district in which such violation occurred" (19 U.S.C. 1602). Any person who appears to have an interest in the seized property is given written notice by the officer of the property's liability to forfeiture and informed of the right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 C.F.R. 162.31(a). A petition must be filed within 60 days from the date the notice of forfeiture is mailed (19 C.F.R. 171.12(b)). If the petitioner is not satisfied with the decision of the Secretary, he may file a supplemental petition within 60 days of the decision (19 C.F.R. 171.33(a)(1)). /2/ If no petition is filed, or if, after consideration and decision on a petition, it appears that legal proceedings in connection with the seizure are necessary, the appropriate customs officer, after appraising the merchandise (19 U.S.C. 1606; 19 C.F.R. 162.43), must prepare a full report of the seizure for the United States Attorney, giving all the relevant facts and circumstances (19 U.S.C. 1603; 19 C.F.R. 162.43). /3/ At the time of the seizure in this case, Section 1603 contained no requirements as to how quickly the customs officer should prepare his report to the United States Attorney. Congress subsequently amended the statute to require the customs officer to act "promptly" when legal proceedings are required. Customs Procedural Reform and Simplification Act of 1978, Pub. L. No. 95-410, Section 110(b), 92 Stat. 896, 19 U.S.C. (Supp. IV) 1603. Upon receipt of a report, the United States Attorney is required "immediately to inquire into the facts" and, if it appears probable that a forfeiture has been incurred, "forthwith to cause the proper proceedings to be commenced and prosecuted, without delay" (19 U.S.C. 1604). After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 C.F.R. 171.2(a). /4/ 3. The Customs Service in the Department of the Treasury processes approximately 50,000 non-contraband forfeitures per year (see U.S. Customs Service, Customs U.S.A. 32 (1980)). Of those, the Service estimates that approximately one-half involve property with a value in excess of $10,000, for which a judicial forfeiture proceeding is statutorily required. /5/ In 90% of all seizures, the claimant files an administrative petition for remission or mitigation. The Secretary of the Treasury in turn grants at least partial relief for an estimated 75% of the petitions. Typically, this relief terminates the dispute without the filing of a forfeiture action in district court and thus provides an equitable and inexpensive method for resolving a substantial majority of forfeiture cases. Although Customs does not maintain precise statistics reflecting the outcome of cases that go to court, it estimates that well over half of them are decided by a default judgment -- presumably because there is no real factual dispute regarding the government's right to forfeit the property. As for those that are disposed of by summary judgment or trial, Customs estimates that it prevails in at least 80% of the cases, excluding decisions like the instant case in which the forfeiture has been disallowed because of delay. B. Facts of this Case 1. On September 10, 1975, claimant Mary Josephine Vasquez flew from Canada to Los Angeles (Pet. App. 15a). After landing, she presented her Customs Baggage Declaration to a Customs inspector. On that form is the question: "Are you or anyone in your party carrying over $5,000 in coin, currency, or monetary instruments?" which she answered by checking the "No" box. The inspector asked Vasquez three times whether she or anyone in her party was carrying more than $5,000 in United States currency, and she answered in the negative on each occasion (id. at 15a-16a). /6/ A second Customs inspector observed that Vasquez had an unusual bulge on the right side of her upper torso (J.A. 30). In addition, he recognized her name from a computer list of persons suspected of involvement in narcotics trafficking (J.A. 30-31). He therefore arranged for a female inspector to continue the examination by a pat-down of Vasquez in a private room (Pet. App. 16a). As a result of this search, an envelope containing currency was discovered in Vasquez's longline bra. The female inspector counted the money in Vasquez's presence and told her that she counted $9,950. Vasquez answered that it was "not that much" (J.A. 81), and, in fact, the envelope contained only $8,850, in 74 $100 and 29 $50 bills (Pet. App. 16a). Eight days later, on September 18, 1975, Customs sent a letter to Vasquez informing her officially that the seized currency was subject to forfeiture because of her failure to report it, in violation of 31 U.S.C. 1101. The letter also informed her that she had the right to petition the District Director of Customs for remission or mitigation of the forfeiture in accordance with 19 U.S.C. 1618 (R. 57). /7/ Vasquez, through her attorney, /8/ filed a petition for remission or mitigation on September 25, 1975. The petition asserted that her violation of the law was unintentional because she mistakenly believed that she was required to declare only funds that had been obtained in another country (J.A. 81). On October 20, 1975, the Customs Office of Investigation assigned Special Agent Janet Pompeo to investigate the petition for remission or mitigation (J.A. 43; Pet. App. 17a). Within a few days, Pompeo had interviewed the customs inspectors who were involved in the seizure of the currency at the Los Angeles International Airport (J.A. 44). She then attempted to contact Vasquez's attorney to arrange an interview with Vasquez. She finally succeeded in contacting the attorney on November 13, 1975, but he was too busy to meet with the agent at that time and stated that he wanted to be present when the agent interviewed his client (J.A. 44-45; Pet. App. 17a). Thereafter, neither party made any attempt to contact the other until March 2, 1976, when Agent Pompeo again telephoned the attorney. He returned the call two days later and told Pompeo that she could interview his client if she were willing to come to Los Angeles. She agreed, and the interview took place the following day (J.A. 53; R. 110). On March 29, 1976, Vasquez submitted the affidavit of John Walters (R. 62-64). According to the affidavit, Walters gave Vasquez the money so that she could buy some Canadian property jointly with him. This was the first "innocent" explanation offered for Vasquez's possession of $8,850 while entering the United States (ibid.). On April 26, 1976, Vasquez for the first time (R. 65) expressed a desire for expedition of the administrative decision on the petition for remission. /9/ 2. Contemporaneously with these events, Agent Pompeo learned that Vasquez's family was believed to be involved in extensive heroin dealing activities and that Vasquez had a long record of arrests and one conviction for narcotics violations (J.A. 46). /10/ Pompeo also pursued inquiries with various law enforcement agencies to determine whether the seized currency was part of a narcotics transaction. /11/ Because she knew that a currency reporting violation is normally a misdemeanor, but that a reporting violation committed in furtherance of any other offense is a felony, /12/ the agent considered it important to ascertain whether or not Vasquez's reporting violation occurred in the course of a drug trafficking scheme (J.A. 47). In late November 1975, Pompeo drafted a preliminary report to the United States Attorney's Office, but her supervisor told her not to forward the report until she had interviewed Vasquez and received responses to her inquires from other law enforcement agencies, including the Royal Canadian Mounted Police (ibid.). She was in contact with these agencies "quite a few times" during this period but did not receive final reports from them until April 1976 (J.A. 47-48). The other law enforcement agencies could not provide information showing that the currency violation was part of an ongoing criminal activity (Pet. App. 18a). Agent Pompeo then prepared a final draft of her criminal investigation report, as well as a report relating to the remission petition and potential civil forfeiture action. After the criminal report was reviewed by her supervisor, it was sent to the United States Attorney's Office on May 17, 1976 (R. 110). On June 9, 1976, an Assistant United States Attorney requested Pompeo to reinterview the customs witnesses in the case. She did that and reported her findings on June 10 and 11 (R. 110-111). On June 15, 1976, Pompeo testified before a grand jury, which returned an indictment the same day charging Vasquez with knowingly and willfully making false statements to a United States customs officer, in violation of 18 U.S.C. 1001, and with knowingly and willfully transporting $8,850 into the United States without filing a report, in violation of 31 U.S.C. 1058 and 1101 (Pet. App. 18a). The indictment sought forfeiture of the currency as part of the misdemeanor count. On August 19, 1976, Agent Pompeo informed the District Director that the currency would be used as evidence in the criminal trial. Accordingly, she requested that disposition of the remission petition be withheld until after the currency was no longer needed as evidence (R. 111). 3. The criminal trial did not commence until December 14, 1976 (R. 111). /13/ The jury returned its verdicts on December 24, 1976. It found Vasquez guilty on the felony count of making a false statement, but it acquitted her on the misdemeanor charge of willfully failing to file a currency report (Pet. App. 17a). /14/ Because of the acquittal on the misdemeanor count, the currency was not subject to forfeiture incident to the criminal proceedings. On December 28, 1976, Vasquez informed the special agent of the jury's verdicts and renewed her request for expedition of the District Director's decision on the petition for remission or mitigation (R. 66). On March 28, 1977, she was formally notified of the denial of her petition (R. 68). 4. On March 10, 1977, the District Director notified Vasquez that the Customs Service's forfeiture claim had been referred to the United States Attorney for further action (R. 67). A forfeiture complaint was filed in the United States District Court for the Central District of California on March 22, 1977. It alleged that Vasquez had transported the defendant currency into the United States on September 10, 1975, without making the report required by 31 U.S.C. 1101, 31 C.F.R. 103.23(a) and 103.25, and that the currency was accordingly subject to forfeiture under the provisions of 31 U.S.C. 1102 and 31 C.F.R. 103.48 (R. 1-2). In her answer to the complaint, filed on April 27, 1977, Vasquez admitted the truth of the government's factual allegations (R. 9) but asserted numerous constitutional and other legal defenses. Her "eighth affirmative defense" was that the government's "dilatory processing" of her petition for remission or mitigation and "dilatory" commencement of the civil forfeiture action violated her right to due process (R. 12). Subsequently, Vasquez filed a motion for summary judgment (R. 27-55) arguing, inter alia, that the government's delay in passing upon the petition for remission and in instituting the forfeiture action was unreasonable and that such delay violated her right to due process. The summary judgment motion was denied on August 18, 1977 (R. 149-151). The civil forfeiture trial took place on January 17 and 18, 1978. Counsel stipulated to all of the facts set forth above concerning the events at the Los Angeles Airport on September 10, 1975 (Pet. 12; J.A. 79-81). The only real issue litigated at the trial involved the allegation of unreasonable delay (J.A. 27). Addressing Vasquez's contention that the government had been dilatory in proceeding with the forfeiture action, the district court concluded (J.A. 77): * * * I have been anxious to see in this case whether there has been a lot of dilatory (sic) conduct that the government has really not done what it should do in order to push this thing with all reasonable speed, and, frankly, I don't see any point in which the government has been lax. If I had found such, and I found it an unreasonable length of time, I would have been happy to so hold, because I don't like these forfeiture statutes. And, most judges do not, for the reasons I have indicated. But, in view of the evidence here, I just cannot see any way in which this Court can say that the government has not pursued their claim in all reasonable diligence. The court then declared the currency forfeited under 31 U.S.C. 1102 (Pet. App. 19a). /15/ 5. A divided panel of the Ninth Circuit reversed (Pet. App. 1a-12a). Proceeding from the premise that "(f)orfeiture actions must be brought promptly" (id. at 4a), it found that the government had delayed unreasonably in instituting forfeiture proceedings in this case. In reaching this result, it expressly rejected the government's argument that the pendency of the administrative investigation resulting from the remission petition and of the parallel criminal investigation justified the delay (ibid.). The majority also rejected the government's argument that, absent a demonstration by Vasquez of prejudice resulting from the delay, she was not entitled to relief. While not specifically addressing the question of remedies, it held that "(t)he claimant need only show unjustified delay in order to bar a judgment of forfeiture" (Pet. Ap. 5a). It concluded that "(t)o require a further showing of prejudice is inconsistent with th(e) constitutional (principle that forfeiture procedings be initiated promptly)" (id. at 7a). Judge Alarcon dissented (Pet. App. 8a-12a). Analogizing to principles applicable to motions to dismiss indictments due to pre-accusation delay, he stated that in order to establish a due process violation the claimant must show both unreasonable delay and prejudice resulting from the delay (id. at 10a-11a). Since the claimant here "suffered no prejudice from the delay to her defense in instituting forfeiture proceedings" and was not entitled to the use of the seized currency pending trial of the forfeiture proceedings because it was properly seized at the outset, he would have found that there was no due process violation (id. at 11a-12a). SUMMARY OF ARGUMENT In this case the Customs Service lawfully seized the respondent currency when claimant Vasquez sought to bring it into the country without making the required declaration. Following a criminal investigation and prosecution of Vasquez growing out of the incident in which the currency was seized, and after denial of her petition for remission or mitigation of the forfeiture, a civil forfeiture action was filed against the currency. In a proceeding the fairness and adequacy of which is unchallenged, the district court reliably determined that the property was subject to forfeiture. The court of appeals nevertheless reversed, holding the forfeiture barred because of unjustified delay in filing the suit. This holding was reached despite the fact that the delay in filing the forfeiture action did not injure or prejudice Vasquez in any way, and despite the fact that the process that she was held to have been denied -- prompt filing of a judicial forfeiture action -- was never sought by her and would have injured her by terminating the administrative remission proceeding, thereby extinguishing her only realistic prospect for relief from the forfeiture. I A. There is no general due process requirement of prompt post-seizure filing of a judicial forfeiture action. Rather, the standard for assessing the timeliness of the suit should be the same as that employed for due process challenges to delay in instituting criminal prosecutions. Such claims can prevail only upon a showing that delay constituted a deliberate attempt to gain an unfair tactical advantage over the defendant or was undertaken in reckless disregard of its probable prejudicial impact upon the defendant's ability to defend any prosecution ultimately brought. United States v. Lovasco, 431 U.S. 783 (1977). In the absence of unfair governmental conduct of this sort, the timeliness of the suit is governed by the applicable statute of limitations, which had three and a half years to run at the time the instant forfeiture action was filed. The reasons for applying the Lovasco standard in criminal cases also apply in large part to quasi-criminal forfeitures. In each case, careful investigation is often needed to determine whether proceedings should go forward, and in each case the remedy of dismissal is a drastic one that penalizes important public interests in a manner justifiable only as a response to fundamentally unfair government conduct. Mere failure to proceed with the dispatch that a court believes desirable, or even negligent dilatoriness by the government, is insufficient to make out a constitutional violation. Among the reasons for not requiring prompt post-seizure filing of a forfeiture action is the interrelationship between forfeiture proceedings and criminal investigations and prosecutions. Where a criminal investigation or prosecution is underway, prompt filing of a forfeiture action is likely to be an empty gesture, because the civil action would normally have to be stayed pending resolution of the criminal proceedings. Failure to stay the civil suit could impair the claimant's ability to defend the civil action, compromise the government's criminal investigation or prosecution by allowing premature discovery, and burden the courts with potentially unnecessary and duplicative litigation of issues that might be settled in a criminal prosecution or through the administrative remission and mitigation process. Under such circumstances, it is inappropriate to hold that due process requires a prompt post-seizure judicial suit. Even if the government is held to a standard of prompt litigation in the civil forfeiture context, Lovasco expressly requires a showing of prejudice as part of any due process claim complaining about government delay. In this case, where the delay did not impair Vasquez's ability to litigate the forfeiture action, and where it has been fairly and reliably determined that the property was the government's and not hers during the period of the allegedly improper delay, no showing of prejudice is possible. Finally, even if the analysis of Lovasco is rejected for civil forfeiture cases, a claimant's interest in the trial of a forfeiture action cannot be greater than the constitutional speedy trial right of a criminally indicted defendant. Application of the four-factor standard of Barker v. Wingo, 407 U.S. 514 (1972), compels the conclusion that the delay between seizure and institution of suit in this case does not require dismissal. The delay in no way prejudiced the claimant, she never requested institution of a judicial forfeiture action, and the delay was reasonable in light of the pendency both of administrative remission proceedings and of a criminal investigation and prosecution of the claimant. B. The only possible ground for distinguishing the present inquiry from that in Lovasco is that here the property has been seized, whereas in pre-indictment delay cases the government does not directly deprive the defendant of his liberty prior to the time the prosecution is instituted. Thus, if the property is not in fact subject to forfeiture, the claimant is being deprived of the use of his property during the period of delay. This distinction, however, utterly fails to support the due process holding of the court of appeals. If a claimant believes his property has been improperly seized -- i.e., without probable cause to believe it is subject to forfeiture -- he can move for return of the property under Fed. R. Crim. P. 41(e). Thus, the question really is whether due process requires a prompt post-seizure forfeiture hearing for those seizures that are supported by probable cause at the time of the taking -- a class of cases in which interim retention of the property by the government is clearly reasonable. In addition, claimants who consider themselves aggrieved by a delay in filing the judicial forfeiture suit may file an equitable action seeking to compel the seizing agency to file suit or relinquish the property. Slocum v. Maybery, 15 U.S. (2 Wheat.) 1 (1817). Since the filing of a forfeiture action will in the vast majority of cases lead to a forfeiture decree, and since the filing has the effect of terminating a pending remission proceeding -- which offers most claimant's their best (or only) chance to secure return of their property -- a prompt litigation requirement is of little interest or value to most persons whose property has been seized for forfeiture. Under these circumstances, it is appropriate to leave it to the claimant whether to invoke these other remedies by which he can challenge the government's interim retention of the property or delay in filing a suit, Parratt v. Taylor, 451 U.S. 527 (1981), and it is unreasonable to insist on prompt institution of a judicial forfeiture action by the government in every case. II Assuming we are mistaken in the foregoing arguments, and the Due Process Clause requires judicial forfeiture proceedings to be brought without unreasonable delay, there was no unreasonable delay in this case, because the 18 months between seizure and suit were consumed with processing Vasquez's remission petition and conducting a criminal investigation and prosecution arising out of her failure to report the currency. A. So long as a claimant maintains a remission petition, he should not be heard to complain about the government's delay in instituting forfeiture proceedings. Petitions for administrative remission or mitigation are filed in the vast majority of forfeiture seizures and usually result in the grant of some relief acceptable to the claimant. Thus, the congressional scheme that encourages settlement of forfeiture matters administratively rather than judicially in fact succeeds in avoiding substantial congestion of court dockets. The decision of the court of appeals subverts that scheme by refusing to recognize as legitimate delays resulting from the administrative proceedings. While claimants frequently complain about delays in processing remission petitions, the administrative proceeding is purely a matter of executive grace and implicates no property interest subject to the requirements of the Due Process Clause. Consequently, judicial relief from a forfeiture cannot be predicated on delay in processing the petition for remission. For those claimants who prefer judicial proceedings to administrative ones, the simple expedient of withdrawing the request for administrative relief is available, which will normally lead to a prompt filing of a judicial forfeiture action. But so long as claimants, like Vasquez in this case, maintain their request for administrative relief, the delay in litigation is fully justified. B. Even where an administrative petition is not filed or has been denied, other circumstances may justify some delay in filing suit. Foremost among these is the pendency of a criminal investigation or prosecution relating to the same events giving rise to the forfeiture proceeding. Most of the delay in this case was attributable to that factor. Since it is unreasonable to require simultaneous civil and criminal proceedings involving essentially the same subject matter, the delay in this case was justified. III Even if there were a technical violation of Vasquez's due process rights in delaying institution of forfeiture proceedings, the extreme remedy of dismissal of the forfeiture action was improper and conferred a wholly unjustified windfall. Since Vasquez has raised no factual issue relating to the forfeiture, the delay in this case plainly did not prejudice her ability to litigate the forfeiture action. Thus, the only "injury" inflicted upon her by the delay was to postpone the time at which title to the currency was quieted in the United States. The remedy for such a minimal injury is, at most, an award of nominal damages. Carey v. Piphus, 435 U.S. 247 (1978). Certainly, in the absence of prejudice, dismissal is improper. United States v. Morrison, 449 U.S. 361 (1981). Moreover, the remedy of dismissal is singularly inapt. While it provides a windfall to those not injured by the delay because their property was in fact forfeitable, it affords no remedy at all for the delay in returning property that is not subject to forfeiture, since return of the property would in any event be ordered in such cases. ARGUMENT I. THERE IS NO GENERAL REQUIREMENT IN THE DUE PROCESS CLAUSE OF A PROMPT POST-SEIZURE FILING OF A CIVIL FORFEITURE ACTION There is no suggestion in this case that the passage of 18 months between the seizure and institution of forfeiture proceedings violated any statute or regulation governing the forfeiture process. The statute of limitations applicable to the filing of customs forfeiture actions requires that they be instituted "within five years after the time when the alleged offense was discovered." 19 U.S.C. 1621. And at the time of the seizure of the currency from Vasquez, 19 U.S.C. 1603 contained no requirement of a prompt report of a seizure by Customs to the United States Attorney for purposes of instituting forfeiture proceedings. Indeed, even as amended in 1978, a prompt report to the United States Attorney is mandated only when legal proceedings "in connection with such seizure or discovery are required * * * ." 19 U.S.C. (Supp. IV) 1603. So long as administrative remission proceedings are pending or there is a prospect that the forfeiture will be decreed in a criminal prosecution, it is unclear whether civil forfeiture proceedings will in fact be required. The relief afforded claimant Vasquez by the court of appeals was based solely upon the conclusion that the Fifth Amendment requires more speedy process than Congress has prescribed or than was afforded in the circumstances of this case. A central purpose of the Due Process Clause is to ensure that the government will not erroneously deprive an individual of his property by affording him an opportunity to show why the action is unwarranted. Hence due process guarantees, at a minimum, notice and an opportunity to be heard, often prior to the actual acquisition of the property, but always before its final deprivation. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). The civil forfeiture process involves three stages of potentially improper deprivation of an individual's property interest: first, the actual seizure of the property by the government; second, the retention of the property until legal title thereto is finally established by the forfeiture action or other means; and third, the judgment declaring the property forfeited and perfecting title in the United States. It is well settled, and not in dispute in this case, that no process is necessary prior to a seizure of property believed to be forfeitable. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). Similarly, there is no challenge here to the adequacy of the procedures in the judicial forfeiture proceeding itself. It is the second stage -- the interim retention of the seized property pending institution of forfeiture proceedings -- that is the focus of the alleged wrong. Delay during that second stage implicates two distinct interests of the claimant of the property. First, if the original taking was wrongful, then during the period prior to the hearing and eventual return of the property, the claimant has been improperly denied the rightful use of his property. Second, assuming the claimant has a legitimate defense to the forfeiture action, delay may prejudice his ability to offer proof in support of that defense, because as time passes memories may fade or witnesses may become unavailable. See United States v. Marion, 404 U.S. 307, 321 (1971). Even in cases like the present one, in which these interests have not been compromised, the Ninth Circuit forbids forfeiture if the government delays in filing suit for some period that the court deems after-the-fact to have been "unreasonable." This rule, however, is a product of the erroneous view that the claimant actually has a significant property interest that can be adequately protected only by a prompt judicial proceeding and that the government has no significant countervailing interest to justify delay. As we show below, the decision whether and when to bring a civil forfeiture action is often tied to and closely resembles a criminal investigation. In either context, in the absence of invidious motivation for delay and prejudice, mere delay in commencing judicial action does not violate due process. In the forfeiture context, moreover, alternative procedures are available to guard against instances of erroneous seizure or unjustified delay. These factors compel the conclusion that there is no constitutional requirement for prompt post-seizure filing of civil forfeiture actions. A. In The Absence Of Invidious Motivation Or Prejudice To The Claimant, The Mere Passage Of Time Between A Seizure And The Institution Of A Forfeiture Action Does Not Violate Due Process A forfeiture proceeding is quasi-criminal in character. Its object, like that of a criminal prosecution, is to penalize through the civil process the commission of an offense against the law. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965), citing Boyd v. United States, 116 U.S. 616, 633-634 (1886). /16/ Because of the quasi-criminal nature of forfeitures, it is not uncommon, as here, for there to be a substantial overlap between a civil forfeiture investigation and a criminal investigation. Because of this close connection between the two types of investigations, we submit that delay in civil forfeiture actions generally should be dealt with under the same standards employed for delay prior to institution of judicial proceedings in criminal cases. 1. This Court held in United States v. Lovasco, 431 U.S. 783, 790 (1977), that in pre-indictment delay cases "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." See also United States v. Marion, 404 U.S. 307, 324-325 (1971); Pet. App. 10a-11a (Alarcon, J., dissenting). Delay attributable to lack of diligence or even negligence on the part of the prosecutor does not provide a basis for a due process claim. Intentional misconduct or reckless disregard for the defendant's interests must be shown. While title to forfeitable property passes to the government at the time of the offense giving rise to the forfeiture (see page 30, infra), for purposes of this part of our argument we assume that after the seizure the claimant retains some residual property interest in the seized property, and that delay could adversely affect the claimant's ability to defeat the forfeiture action. Nonetheless, that interest, although different in nature, certainly is no more significant /17/ than the interest of a criminal defendant in not being prejudiced by the loss of material evidence prior to a criminal prosecution in which his liberty will be placed in jeopardy. In Lovasco this Court held that an 18-month delay in filing an indictment, which caused a loss of potentially exculpatory evidence and was justified by no more than a generalized and ultimately futile search for additional participants in the crime, gave rise to no claim under the Due Process Clause. In general, the justifications for delay in bringing forfeiture actions resemble those in criminal prosecutions; indeed, the causes of delay in this case are comparable to those in Lovasco and certainly no more subject condemnation as unfair. Agent Pompeo made inquiries with several other law enforcement agencies, both in this country and in Canada, in order to determine whether Vasquez's conduct was part of a broader narcotics operation. None of those efforts, however, led to any additional evidence for the government against Vasquez. Vasquez argued vigorously before the district court (J.A. 66-67) that all investigations after a month or two subsequent to the seizure were wholly unjustified because no additional evidence relevant to the forfeiture was acquired. Thus, Vasquez and, in turn, the Ninth Circuit basically are of the view "that once the Government has assembled sufficient evidence to prove (forfeiture is warranted), it should be constitutionally required to file charges promptly, even if its investigation of the entire criminal transaction is not complete." United States v. Lovasco, supra, 431 U.S. at 792. This Court in Lovasco expressly rejected such a rule for criminal prosectuions, and it should do the same for civil forfeiture actions. Nothing is gained, and much can be lost, by requiring the civil forfeiture action to be commenced by the government before any related criminal investigation and prosecution is completed. To begin with, commencement of the civil action terminates the claimant's opportunity to obtain remission or mitigation from the Secretary of the Treasury. 19 C.F.R. 171.2(a). Since, typically, remission or mitigation provides the claimant with the best opportunity to recover at least some of his property, early filing of the forfeiture action generally does not benefit the claimant. In addition, the pendency of a civil action can create significant problems for the claimant. If a criminal prosecution is pending at the same time as the civil forfeiture action, the claimant is placed in the difficult position of having to defend two separate proceedings simultaneously. See Ivers v. United States, supra, 581 F.2d at 1370. Of greater significance, the pendency of the civil action while a criminal prosecution is being considered or pursued gives rise to serious Fifth Amendment problems. Clearly, the claimant has a right not to testify at the civil forfeiture hearing because of the potential use to which that testimony could be put in the criminal proceeding. Such reliance upon the privilege against self-incrimination, however, could seriously impair the claimant's ability to present a defense in the civil case, particularly since the claimant has the burden of proof after the government has established a prima facie case. See 19 U.S.C. 1615; United States v. One 1976 Mercedes 450 SLC, 667 F.2d 1171, 1175-1176 (5th Cir. 1982); United States v. U.S. Currency, 626 F.2d 11, 16 (6th Cir. 1980). A requirement that a civil suit must be instituted quickly also would impair substantial government interests. First, it is not uncommon that the government must seize property that may be subject to forfeiture in considerable haste, lest the property be removed, concealed or destroyed. See Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. at 679. Obviously, the decision whether to go through with a forfeiture action will often call for careful investigation after such a seizure. The government must be afforded full opportunity to sift through the facts and weigh the equities before being required to initiate litigation. Second, if the forfeiture action is tried and the government loses, that result may collaterally estop the government in a subsequent, related criminal prosecution. See United States v. Mumford, 630 F.2d 1023, 1027 (4th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); Dranow v. United States, 307 F.2d 545, 556 (8th Cir. 1962). This backdoor subversion of the policies of Lovasco would be particularly unfortunate if the government lost the civil action, having been forced to proceed without pause once it had obtained sufficient evidence to present a prima facie case, and then subsequently discovered additional, inculpatory evidence that could assist in "having the guilty brought to book." United States v. Blue, 384 U.S. 251, 255 (1966). Third, the conduct of the civil trial or even the mere pendency of the civil action can give the claimant an unwarranted opportunity to discover the details of a contemplated or pending criminal prosecution. Compare Fed. R. Civ. P. 26(b) with Fed. R. Crim. P. 16. Because of its concern about potential dangers to witnesses and fabrication of defenses, Congress has deliberately elected to circumscribe narrowly discovery in criminal cases; and, of course, details of criminal investigations prior to indictment are generally not available to the public or potential targets. Cf. Fed. R. Crim. P. 6(e). But if a civil forfeiture action must be filed even while a criminal investigation is in progress, the target of the investigation will naturally seek discovery of material relating to it on the ground that it is necessary to defend the forfeiture action. See Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 381 (D.C.D.C. 1977); see also United States v. Thirty Six Thousand, One Hundred and Twenty Five Dollars ($36,125.00) In U.S. Currency, 510 F. Supp. 303, 308 (E.D. La. 1980), aff'd, 642 F.2d 1211 (5th Cir. 1981) (filing of civil forfeiture proceedings during pendency of criminal investigation could have adversely affected that investigation). While the civil forfeiture court can protect against unjustified disclosures by staying discovery proceedings in the civil case, /18/ no useful purpose is served by requiring a civil forfeiture action to be promptly if the civil action must be stayed to prevent exploitation of the civil discovery rules to gain an advantage in the criminal case. Moreover, deferral of the civil suit pending the outcome of the criminal proceedings often will conserve scarce judicial resources. Frequently, as in this case, forfeiture is a penalty for the criminal conviction. See, e.g., 31 U.S.C. 1102. Thus, completion of the criminal case will often render the civil case unncessary. Moreover, if the defendant is acquitted, the government may reconsider whether forfeiture is appropriate and decide to return the property. Even if forfeiture is not available or sought in the criminal case, a successful prosecution may be regarded by the government as sufficient punishment and pursuit of a civil forfeiture action may be abandoned. In any event, the time and resources of the courts can be conserved by avoiding multiple litigation of the same issues. /19/ Finally, judicial review of the government's diligence in bringing a civil forfeiture action will involve the courts in an unseemly inquiry into "the day-by-day progress of each investigation." United States v. Lovasco, supra, 431 U.S. at 793-794 n.14. See also United States v. Feinberg, 383 F.2d 60, 67 (2d Cir. 1967), cert. denied, 389 U.S. 1044 (1968). Indeed, the hearing in this case (see J.A. 51, 58-76) is a good illustration of the kind of harassing inquisition of investigating officials by a claimant's attorney that the Ninth Circuit's rule fosters and that this Court attempted to discourage in Lovasco. /20/ We thus submit that the similarities between a quasi-criminal forfeiture investigation and a criminal investigation and prosecution require the former proceedings to be governed by the same due process standards that are applied to the latter. There can be little question in the present case that the passage of 18 months between the seizure and the filing of the forfeiture action, during much of which the government pursued a broader criminal investigation and allowed a criminal proceeding to be completed, was not the product of bad faith, did not constitute unfair government conduct, and therefore did not offend the requirements of due process. 2. Even if, contrary to our previous submission, the investigation in this case involved governmental misconduct satisfying the first prong of the Lovasco formula, a showing of prejudice is also a necessary condition for a due process violation. 431 U.S. at 789. In the forfeiture context, this would require a showing that the delay somehow impeded the claimant's ability to defeat the forfeiture action. /21/ If one thing is clear in this case, it is that the delay was wholly immaterial to the reliability of the forfeiture determination. No factual issue relevant to civil forfeiture existed. In her answer to the complaint, Vasquez admitted that "(o)n September 10, 1975 (she) transported into the United States the defendant currency ($8,850) at (the) Los Angeles Airport without making the report required of her under 31 U.S.C. 1101 * * * " (R. 1, 9). Just as in cases where the defendant enters a plea of guilty that encompasses the commission of every act that the government would have to prove in a civil forfeiture proceeding, the claimant in this case can point to no relevant issue of fact left to be resolved during the forfeiture trial. See, e.g., United States v. Various Pieces of Semiconductor Manufacturing Equipment, 649 F.2d 606, 607 (8th Cir. 1981). /22/ It is clear beyond dispute that Vasquez was in no way prejudiced by the government's delay in filing its civil forfeiture action, and therefore her due process rights were not violated. 3. Even if the Court is not prepared to adopt Lovasco's due process analysis in considering the nature of a claimant's right to institution of a forfeiture action at a particular time, it is inconceivable that there is a constitutional obligation to proceed with greater dispatch in instituting a civil forfeiture proceeding to determine title to seized property than in bringing to trial an indicted criminal defendant. But applying the four-factor test of Barker v. Wingo, 407 U.S. 514 (1972), for evaluating the permissibility of delay under the Speedy Trial Clause of the Sixth Amendment, the delay here was well within acceptable bounds. The four factors are: "(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. The length of the delay in this case is nowhere near the five years in Barker, but presumably it is long enough to "trigger" a further inquiry into the other factors. Ibid. The reasons for the delay here were to pursue the investigation (which was not expedited by Vasquez's attorney's initial refusal to have her meet promptly with Agent Pompeo) and the pendency of a criminal trial that could have obviated the need for any civil forfeiture action. The civil forfeiture action was filed within three months of the conclusion of the criminal trial, during which time the remission petition was given renewed consideration and was rejected. Balanced against these reasons for delay is the complete failure of claimant to demand or even indicate the slightest interest in the institution of judicial proceedings. /23/ Finally, there plainly was no prejudice caused by the delay. Claimant's ability to defend her case was wholly unaffected by the intervening 18 months between seizure and forfeiture (see pages 27-28, supra). Thus, even applying the relatively liberal standards for speedy trial claims, the forfeiture trial in this case was not impermissibly delayed. B. Due Process Requirements Are Fully Satisfied By The Alternative Procedures Available To Test The Lawfulness Of A Forfeiture Seizure Or To Compel The Filing Of An Unreasonably Delayed Judicial Forfeiture Suit Assuming, contrary to our previous submission, that the standards in Lovasco or Barker do not control quasi-criminal forfeiture cases, the delay in this case nonetheless did not violate due process as that right has been interpreted by this Court's prior decisions in other civil cases. 1. Initially, we assume that a claimant has a protectible property interest in items lawfully seized for forfeiture. It is, however, important to recognize that "the forfeiture takes effect immediately upon the commission of the act; * * * (and) constitutes a statutory transfer of the right to the United States at the time the offence is committed," although title is not perfected until issuance of a condemnation decree by a court. United States v. Stowell, 133 U.S. 1, 16-17 (1890). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 461 (1868); United States v. Currency Totalling $48,318.08, 609 F.2d 210, 212-214 (5th Cir. 1980); Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir. 1978); Simons v. United States, 541 F.2d 1351, 1352 (9th Cir. 1976). Whether there is any transfer of title depends, of course, on whether it has been reliably determined that the forfeiting act has occurred. Since that is not established at the time of seizure, it is appropriate to treat the claimant's property interest as not extinguished for purposes of considering what process should be afforded. /24/ 2. Once the existence of a constitutionally protected interest is established, the issue becomes "what process is due" to protect that interest adequately. Morrissey v. Brewer, 408 U.S. 471, 483 (1972). With regard to the timing of a hearing, the rule is simply that "the opportunity to be heard" must be after notice is given and "'at a meaningful time.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See also Parratt v. Taylor, 451 U.S. 527, 539 (1981); Arnett v. Kennedy, 416 U.S. 134, 179 (1974) (opinion of White, J.); Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). In the instant case, the court of appeals held that the process due claimant Vasquez was not only a judicial hearing at which full opportunity was afforded to determine the facts relating to forfeitability in a reliable manner -- which she received from the district court -- but also a prompt post-seizure filing of a suit by the government. Insistence upon the latter requirement ignores the availability of other remedies that fully suffice to reduce to an acceptable level the risk of an erroneous deprivation of property arising from a seizure. We have noted above that forfeiture process embodies three stages: seizure, retention, and final disposition. With respect to the first of these, a procedure has been provided by Congress that is fully adequate to test the lawfulness of the seizure. Rule 41(e) of the Federal Rules of Criminal Procedure provides: A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. * * * Under this provision, a party challenging the seizure of his property for forfeiture can ordinarily obtain a judicial determination of the existence of probable cause for its seizure. /25/ Significantly, the showing of probable cause in a Rule 41(e) proceeding is essentially equivalent to the government's burden of proof in the forfeiture action. See 19 U.S.C. 1615. Of course, there is not a complete correspondence of issues between a Rule 41(e) proceeding and the forfeiture action. See generally United States v. Wilson, 540 F.2d 1100, 1103 & n.4 (D.C. Cir. 1976), citing, American Law Institute, A Model Code of Pre-Arraignment Procedure S S 280.3 (1975). The former focuses only on the lawfulness of the seizure in light of the officers' information when they obtained the property, whereas in some cases the claimant may have some affirmative defense, based on facts unknown to the seizing officers, that would suffice to defeat the forfeiture even though the seizure was supported by probable cause. Nevertheless, the availability of the Rule 41(e) remedy clearly affords adequate process to guard against unjustified seizures and to root out most instances in which seized property cannot ultimately be shown to be forfeitable. Cf. Parratt v. Taylor, supra, 451 U.S. at 539. Prompt filing of a civil forfeiture action is thus unnecessary to achieve these ends. The availability of the Rule 41(e) remedy as a means of weeding out cases in which the initial seizure of the property is illegal defines more precisely the present due process inquiry: To what extent, if at all, is prompt filing of a judicial forfeiture action required in the case of property lawfully seized on the basis of probable cause to believe it is subject to forfeiture? Given the lawfulness of the seizure, the forfeiture process followed by Customs clearly complies with the requirements for reasonable notice and opportunity for a hearing. Notice of forfeiture is given immediately after the seizure of property to anyone with an apparent interest in the seized property. That notice provides two distinct "opportunities" for a hearing. The claimant can either seek affirmative administrative relief through the relatively informal remission or mitigation process (see pages 6-7, supra) /26/ or await the filing of the civil forfeiture action and attempt to defend against it in court. In addition, whether the final hearing is at a "meaningful time" is a matter largely within the control of the claimant and is not dependent on suit being filed by the government. It has been accepted from the earliest days that the proper response to the government's failure to proceed with a forfeiture action with sufficient dispatch to satisfy the claimant is to file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. /27/ See Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 9 (1817) (Marshall, C.J.); Castleberry v. Alcohol, Tobacco & Firearms Division, 530 F.2d 672, 674-675 (5th Cir. 1976); In re Behrens, 39 F.2d 561, 563 (2d Cir. 1930); The Blairmore I, 10 F.2d 35, 38 (2d Cir. 1925) ("In the century and more that has elapsed since (Slocum), * * * the rule is the same"); Gillam v. Parker, 19 F.2d 358, 361-362 (E.D.S.C. 1927). It thus cannot fairly be concluded that adequate opportunity to secure a timely hearing is not available. Under such circumstances claimants, such as Vasquez, who never evidence the least interest in having a suit filed and "who stand by mutely while time passes * * * (should) not later be heard to complain of prejudicial delay." Ivers v. United States, supra, 581 F.2d at 1373. See also United States v. One 1973 Ford LTD, 409 F. Supp. 741, 742 (D. Nve. 1976). /28/ 3. Contrary to the well accepted notion that due process "is not a technical conception with fixed content unrelated to time, place and circumstances," Mathews v. Eldridge, supra, 424 U.S. at 334, the court of appeals in this case adopted an unbending approach to forfeiture and concluded that, regardless of the government's reasons for delay, "(a) prompt hearing is constitutionally guaranteed to the owner of currency * * * " (Pet. App. 8a). /29/ This holding is justified initially by the line of cases from this Court declaring generally that a hearing must precede the deprivation of property. See, e.g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975); Fuentes v. Shevin, 407 U.S. 67, 90-92 (1972). But cases such as Fuentes, which say nothing at all about the timing of post-deprivation hearings, are not valid guides for deciding the requisites of due process in civil forfeiture proceedings. This Court recognized as much in Calero-Toledo, when it held that no pre-seizure hearing was necessary, in part, because the seizure, itself, is initiated by "a governmental official responsible for determining under the standards of a narrowly drawn statute, that it was necessary and justified" in this case. Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. at 678, quoting Fuentes v. Shevin, supra, 407 U.S. at 91. Since other post-seizure process is available to test the initial lawfulness of the seizure (see pages 31-32, supra), decisions like Fuentes provide little support for the court of appeals here. Although it was not relied upon expressly by the court of appeals in this case, other courts that have held that forfeiture proceedings must be brought promptly have based their holdings upon this Court's decision in United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971). See, e.g., Ivers v. United States, supra, 581 F.2d at 1368 (collecting cases); Sarkisian v. United States, 472 F.2d 468, 471-472 (10th Cir.), cert. denied, 414 U.S. 976 (1973); United States v. Thirty-Six Thousand, One Hundred and Twenty-Five Dollars ($36,125.00) in U.S. Currency, supra, 510 F. Supp. at 307. Thirty-Seven Photographs, however, is plainly distinguishable from this case. In Thirty-Seven Photographs, the Court reviewed the procedures of the Customs Service in seizing objects determined by a customs inspector to be "obscene." Relying upon its prior decisions requiring prompt governmental action when dealing with prior restraints of potentially protected First Amendment activity (e.g., Blount v. Rizzi, 400 U.S. 410 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968); Freedman v. Maryland, 380 U.S. 51 (1965)), the Court read into 19 U.S.C. 1305(a) a requirement that a judicial forfeiture proceeding for alledgedly obscene material be commenced within 14 days of seizure and completed not more than 60 days later. Both requirements had been satisfied in that case. The purpose of these time limits was to obtain a prompt judicial determination as to whether the seized material was, in fact, obscene /30/ and thereby to safeguard the importer's First Amendment rights. As one court of appeals has properly recognized: "(t)he overriding Constitional concern of the Court in Thirty-Seven Photographs was * * * the First Amendment, a consideration obviously not present here." Castleberry v. Alcohol, Tobacco & Firearms Divisions, supra, 530 F.2d at 676 n.7. The Court's holding in Thirty-Seven Photographs thus creates no basis for holding that a prompt hearing is necessary where the property seizure implicates no First Amendment interests. 4. The gist of our due process submission can be nearly summarized by reference to the three-factor "balancing test" described by this Court in Mathews v. Eldridge, supra, 424 U.S. at 335: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. We already have discussed some of the reasons why the government delays filing forfeiture suits, e.g., to investigate thoroughly facts bearing on the forfeitability of the property, to avoid imposing unnecessary burdens on the claimant, to protect any ongoing criminal investigations, and to conserve judicial resources by avoiding litigation when the matter may be settled by a grant of administrative relief or the outcome of a criminal prosecution. Obviously, an additional cause for the delay is the finite manpower and resources available to process forfeiture matters. The magnitude of the private interest is fairly limited following the seizure. As noted above, if the property has been used in the commission of an offense giving rise to the forfeiture, as is true in most cases, title has already passed to the United States prior to any period of delay. Moreover, given the availability of the Rule 41(e) remedy for cases of illegal seizures, the private property interest is further limited by the fact that the delay occurs during a period in which there is usually probable cause to believe the property is subject to forfeiture. Finally, the requirement that a forfeiture action be filed promptly is not essential, or even particularly useful, as a means of reducing the risk of an erroneous determination of the issue of forfeitability. In those instances in which there is a genuine factual basis for disputing the seizure or the forfeiture, claimants -- virtually all of whom are represented by private counsel -- will pursue the remedies available under Rule 41(e) or an equitable suit to compel the filing of the forfeiture action. If neither of these avenues of redress is pursued, it is almost certainly because, as in this case, the factual basis for forfeiture is indisputable. In such a situation, delay will in no way increase the risk of error. In claimant's case, whether the suit was filed on the day of the seizure or five years later, on the last day permitted by the statute of limitations, the result would be the same because there is no factual dispute that requires fresh evidence to decide her claim properly. II. ASSUMING THERE IS A GENERAL DUE PROCESS RIGHT TO A PROMPT JUDICIAL HEARING, DELAY IN FILING THE CIVIL FORFEITURE ACTION WAS NEVERTHELESS FULLY JUSTIFIED IN THIS CASE A. The Time For Filing Suit Should Be Tolled During The Entire Period A Claimant Voluntarily Seeks Administrative Remission Or Mitigation Of A Forfeiture 1. Under 31 U.S.C. 1104, the Secretary of the Treasury "may in his discretion remit any forfeiture or penalty * * * in whole or in part upon such terms and conditions as he deems reasonable and just." As we have explained previously (page 5, supra), following seizure of property for a customs violation, any person having an interest in the seized property is informed of the property's liability to forfeiture and of the right to petition the Secretary for remission or mitigation of the forfeiture. In the overwhelming majority of cases, because the government's entitlement to the property is clear from the circumstances of the seizure, the claimant's only prospect for reacquiring the property is that the Secretary will favorably exercise his discretion and allow remission or mitigation. In fact, petitions are filed in approximately 90% of all Customs forfeiture cases and at least partial relief is granted in a majority of them. See page 6, supra. We submit that there are compelling reasons for holding that submission of an administrative petition for remission or mitigation completely tolls the time within which the government must file a civil forfeiture action. Although the Ninth Circuit ultimately rejected this argument in Ivers v. United States, supra, 581 F.2d at 1370, it convincingly articulated the reasons supporting the adoption of such a role. There are a number of good policy reasons why a procedural sequence in which the administrative determination precedes institution of judicial proceedings may be preferred. Administrative proceedings generally involve less formality and less cost than their judicial counterparts. Since requests for remissions of forfeitures are frequently granted, obviating any need for judicial action, unnecessary and burdensome court proceedings may be avoided by allowing the administrative process to occur first. This sequence, moreover, spares litigants the hard ships which simultaneous administrative and judicial proceedings might impose, especially where, as here, a litigant is involved in defending himself against criminal charges. Accord, White v. Acree, 594 F.2d 1385, 1390 (10th Cir. 1979); see United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1114 (1st Cir. 1975); United States v. One 1964 MG, 408 F. Supp. 1025, 1029 (W.D. Wash. 1976). The decisions of the Ninth Circuit in Ivers and in the instant case seem to suggest that the pendency of an administrative remission proceeding is not to be considered in determinining whether delay in filing a judicial forfeiture action was justified. Such a principle has drastic adverse consequences since it places great pressure on the government, if it wishes to safeguard its power to forfeit property, to cut off the administrative proceedings and file a judicial action. In view of the fact that thousands of forfeiture seizures are made by the federal government each year, such a rule would threaten to burden court dockets with much unnecessary litigation. Even if the court of appeals should be understood to allow the executive a reasonable time for processing remission petitions, serious problems persist. The administrative agency has no way of knowing what amount of time might later be considered reasonable by the courts. Indeed, because of the strain that enormous numbers of remission petitions place on the limited manpower available to process them, it can be predicted with some confidence that the speed in processing petitions will frequently be found by a court, which looks only at the single case before it, to have been unreasonably slow. All in all, the court of appeals' uncharitable attitude toward the government's arguments seeking to justify delay in going to court because of the pendency of administrative proceedings seriously subverts the efficacy of the remission/mitigation process. The Ninth Circuit's approach, by undermining the viability of the remission/mitigation process, is squarely at odds with the historical congressional policy favoring administrative resolution of claims resulting from Customs seizures. In 1938, Section 1603 of the Tariff Act of 1930 was amended by deleting the requirement that customs violations or seizures resulting therefrom be referred to the United States Attorney "promptly," /31/ and by adding a provision that such referral should be made only where "legal proceedings by the United States Attorney * * * are required * * * ." Act of June 25, 1938 Section 27, 52 Stat. 1089. The purpose of this amendment was to make clear that only cases that could not be resolved administratively should be referred to the U.S. Attorney for the initiation of judicial proceedings. H.R. Rep. No. 1429, 75th Cong., 1st Sess. 5 (1937); S. Rep. No. 1465, 75th Cong., 3d Sess. 11 (1938). /32/ The congressional preference for administrative disposition of such claims was reaffirmed in the Customs Procedural Reform and Simplification Act of 1978, Pub L. No. 95-410, 92 Stat. 888 et seq. Although the Act reinstated the requirement that customs officers report customs violations or seizures to the United States Attorney "promptly," it retained the provision that such action is necessary only when judicial proceedings are required -- a matter that cannot be ascertained while administrative remission proceedings are pending. The legislative history of the 1978 amendment to Section 1603 confirms that the purpose of this revision was to require "prompt" initiation of judicial proceedings, but only after the administrative process was complete. Referring to the amendment, the House Report explained: Currently, after the penalty is assessed, the individual involved has 60 days to file a petition for administrative review. The object (of the amendment) is to have such cases referred immediately to the U.S. Attorney if no petition is filed. This provision will insure that a violator will have an opportunity to secure judicial review as soon as the period for administrative review has elapsed. H.R. Rep. No. 95-621, 95th Cong., 1st Sess. 11 (1977) (emphasis added). Due process does not require discarding the congressional scheme of deferring initiation of judicial proceedings pending resolution of the claimant's administrative petition. As we have explained, the only realistic hope most claimants have of reacquiring their seized property lies in favorable action by Customs on their petitions for remission or mitigation; the circumstances of the seizure of the property are usually such that judicial proceedings will inevitably result in forfeiture. Absent some indication to the contrary, it is reasonable to assume that claimants who file such petitions desire postponement of the initiation of judicial forfeiture proceedings until after an administrative decision has been rendered. As the court explained in White v. Acree, supra, 594 F.2d at 1390: (W)here parties file for administrative relief, without asking for institution of court proceedings on the legal issues, they may not complain of abridgment of their rights to procedural due process during a reasonable period for investigation or until their sooner demand for forfeiture proceedings or suit brought to recover the property. In other words, they may forego their right to a quick hearing, if such may reasonably be inferred from their actions. See also Ivers v. United States, supra, 581 F.2d at 1372. If a claimant is dissatisfied with the length of time taken by Customs in acting on his administrative petition or desires a prompt judicial determination, all he need do is withdraw the petition, which will ordinarily lead to prompt institution of judicial forfeiture proceedings. See 19 C.F.R. 162.32 (1975). /33 2. So long as a claimant maintains his administrative petition, we submit that there is no time limit within which a decision must be rendered. We recognize that a number of courts have held that due process requires Customs to take prompt action on petitions for remission or mitigation. See Von Neumann v. United States, 660 F.2d 1319, 1324-1326 (9th Cir. 1981); Lee v. Thornton, 538 F.2d 27, 31 (2d Cir. 1976); United States v. A Quantity of Gold Jewelry, 379 F. Supp. 283 (C.D. Cal. 1974); United States v. One 1971 Opel G.T. 360 F. Supp. 638, 640-641 (C.D. Cal. 1973). Indeed, in the district court, the primary thrust of Vasquez's due process claim was that the government had taken too long to act on her administrative petition (R. 39-48). Moreover, because much of the delay in this case was the result of Customs' investigation of the administrative petition, the clear implication of the court of appeals' decision is that Vasquez had some right to a prompt disposition of her petition. /34/ Under this Court's prior decisions, however, it is clear that petitions for remission or mitigation of forfeitures are not subject to any due process or "speedy trial" requirements, and the lower court decisions to the contrary are incorrect. The procedural protections of the Due Process Clause do not extend to all situations in which governmental action or inaction may be adverse to the interests of a particular person or group: Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979), quoting Meachum v. Fano, 427 U.S. 215, 224 (1976). By its terms, the Clause applies only in those circumstances in which governmental action threatens to deprive a person of "liberty" or "property." Board of Regents v. Roth, 408 U.S. 564, 571 (1972). The decisions of this Court make it clear that the government creates a property interest cognizable under the Fifth Amendment only when by statute, regulation, rule, or well-established practice it binds itself to confer a benefit or withhold a sanction on the determination of a particular set of facts. But, as the Court explained in Roth: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He, must, instead, have a legitimate claim of entitlement to it. 408 U.S. at 577. See, e.g., Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 462-467 (1981); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, supra, 442 U.S. at 7; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, supra, 427 U.S. at 226; Montanye v. Haymes, 427 U.S. 236, 242 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). Applying this analysis in Connecticut Board of Pardons v. Dumschat, supra, 452 U.S. at 465, this Court recently held that a prisoner serving a life sentence has no liberty interest at stake in the decision whether to commute his sentence, because "(t)he (commutation) petition * * * is nothing more than an appeal for clemency. * * * In terms of the Due Process Clause a * * * felon's expectation that a lawfully imposed sentence will be commuted or pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope" (footnote omitted). See also Meachum v. Fano, supra, 427 U.S. at 226-229 (state law conferred no right on prisoner to remain in the prison to which he was initially assigned; no pre-transfer hearing required); Montanye v. Haymes, supra, 427 U.S. at 242 (same); Board of Regents v. Roth, supra, 408 U.S. at 577-578 (interest in continued employment not a property interest to which due process rights attach); Arnett v. Kennedy, 416 U.S. 134, 181 (1974) (opinion of White, J.). Applying these principles to the remission or mitigation process, it is plain that remission is a matter of executive grace and not designed to create any "property" interest protected by the Due Process Clause. Over 150 years ago in United States v. Morris, 23 U.S. (10 Wheat.) 246, 285 (1825), this Court described the Customs remission process, enacted by the First Congress, Act of May 26, 1790, ch. 12, 1 Stat. 122, as a "matter submitted to (the Secretary of the Treasury's) sound discretion." Indeed, the Court's description of the remission process is identical to a pardon: "It presupposes, that the offense has been committed, * * * and affords relief of the advertances and unintentional error." 23 U.S. (10 Wheat.) at 291. Compare Shick v. Reed, 419 U.S. 256, 266 (1974); The Federalist No. 74, at 500-501 (J. Cooke ed. 1961), quoted at 419 U.S. at 263 n.6. The understanding that remission and mitigation are wholly a matter of discretion that establishes no entitlement in the claimant is clearly expressed by the remission or mitigation provision in the Bank Secrecy Act. Section 1104 provides: "The Secretary may in his discretion remit any forfeiture * * * in whole or in part upon such terms and conditions as he deems reasonable and just" (emphasis added). /35/ This statute, like the sentence commutation statute considered in Dumschat, grants the claimant no more than the ability to petition for clemency; the actual decision whether to grant remission or mitigation and the proper terms of such relief are left to the unfettered discretion of the Secretary. /36/ In a manner similar to that of a state parole board, he is empowered to remit or mitigate forfeitures upon such terms as he deems "reasonable and just" when he finds that the existence of mitigating circumstances warrant such relief. There is no particular set of facts which, if shown, mandate a decision favorable to the claimant. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, supra, 442 U.S. at 10. Given the absence of a judicially cognizable property interest in remission or mitigation, claimants who petition the Secretary for such relief have no entitlement under the Due Process Clause to prompt action upon their petitions. They do have the right to withdraw the petition, but if they decline to exercise that option, they should not be heard to complain about how the long government takes in deciding whether to grant them a windfall remission or how long the government takes in filing the action while considering whether administrative relief is warranted. Indeed, in this case, it is transparently clear that Vasquez would not have wanted the relief that the court held she was unconstitutionally denied, because early filing of a forfeiture action would have foreclosed her only realistic prospect for relief. B. The Government Should Be Excused From Filing A Civil Forfeiture Action For The Period During Which It Is Conducting A Criminal Investigation Or Prosecution Relating To The Seized Property In point I of this brief, we argued that the delay attending the government's investigation prior to filing a civil forfeiture action should be reviewed under the same due process standards adopted in United States v. Lovasco for delay pending accusation in a criminal prosecution, and therefore there should be no general requirement of a prompt judicial proceeding. If, contrary to that submission, the Court holds that due process does require the government to justify any delay in filing suit, the pendency of a related criminal investigation or prosecution should be recognized as a legitimate justification. The reasons for this conclusion have been largely canvassed above (see pages 22-27, supra). During the delay, the claimant retains the option of seeking administrative relief, avoids having to litigate simultaneously in two separate proceedings, and may be in a better position to defend the forfeiture action once the criminal aspects of the case are resolved. From the government's perspective, the civil suit might serve as an unwarranted estoppel against further prosecutions; and it may provide improper opportunities for the claimant to discover both the extent of any criminal investigation and the evidence the government plans to use in a possible future criminal prosecution. Finally, the criminal proceeding may eliminate the need to pursue a civil forfeiture action, thereby sparing the courts from having to litigate the same issue twice. Indeed, except for the Ninth Circuit in this case, most courts have readily recognized that a criminal investigation fully justifies delay in filing a civil forfeiture suit. See, e.g., United States v. One 1976 Mercedes 450 SLC, 667 F.2d 1171, 1175 (5th Cir. 1982); Shea v. Gabriel, 520 F.2d 879, 880, 882 (1st Cir. 1975); United States v. Thirty-Six Thousand, One Hundred and Twenty-Five Dollars ($36,125.00) in U.S. Currency, supra, 510 F. Supp. 303, 308 (E.D. La. 1980), aff'd, 642 F.2d 211 (5th Cir. 1981); United States v. $40,454 in United States Currency, 469 F. Supp. 1041, 1044 (W.D. Pa. 1979) (four year delay between seizure of currency and institution of forfeiture proceedings not violative of due process where money necessary as evidence in intervening criminal proceeding); United States v. One 1973 Dodge Van, 416 F. Supp. 43, 47 (E.D. Mich. 1976). We therefore submit that the 18-month delay, during most of which the government actively investigated Vasquez's potential criminal activity and vigorously prosecuted here for the apparent commission of a crime, was completely justified. III. ASSUMING THAT THE DELAY IN THIS CASE VIOLATED DUE PROCESS REQUIREMENTS, DISMISSAL OF THE FORFEITURE ACTION BROUGHT BY THE UNITED STATES AGAINST THE SEIZED CURRENCY IS AN INAPPROPRIATE REMEDY In the preceding arguments we have contended that the Due Process Clause does not require a forfeiture hearing at a particular time and that, in any event, where the claimant files a petition for remission or mitigation or the government pursues criminal process, such actions toll any obligation to initiate civil forfeiture proceedings. Assuming that we are incorrect and the government has an obligation under the Due Process Clause to initiate judicial forfeiture proceedings promptly, and that it has failed in this case to justify the delay, dismissal of the civil forfeiture action is nevertheless a wholly inappropriate remedy for that violation. In the absence of any showing by the claimant that the delay materially prejudiced her ability to present a defense, it is unreasonable to terminate the government's right to forfeit property, just as in cases like Fuentes v. Shevin the presence of a due process violation does not serve to extinguish the underlying debt. Dismissal of the forfeiture action is the civil equivalent of dismissal of a criminal defendant's indictment. In the latter situation, this Court has made clear that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred * * * ." United States v. Morrison, 449 U.S. 361, 365-366 (1981); footnote omitted. See also United States v. Lovasco, supra, 431 U.S. at 790; United States v. Marion, supra, 404 U.S. at 324. Absent prejudice to the claimant's ability to contest a forfeiture, it is clear that dismissal of the forfeiture action in no way remedies any injury that improper delay may have caused. Since neither the lawfulness of the original seizure nor the reliability of the ultimate judicial determination of forfeiture is implicated, the injury to the claimant from non-prejudicial delay is only that of being forced to wait for some period of time before the seized property is finally declared forfeited. The violation of that "right" can be remedied completely in the form of damages for any injury caused by the delay, which would be no more than a nominal sum when the property was in fact subject to forfeiture. See Carey v. Piphus, 435 U.S. 247, 266-267 (1978). What the Ninth Circuit has done is to grant the claimant a windfall at the expense of the congressional purpose to strike at crime through the pocketbook of the criminal. /37/ The illogic of the Ninth Circuit's remedy is highlighted by considering its complete inefficacy in the situation in which the property is not forfeitable and the delay has deprived its owner of interim possession. In such a case, dismissal would be granted in any event, without regard to the due process violation, while in the interim the claimant has suffered an injury that the dismissal leaves wholly unremedied. The Ninth Circuit's approach is reasonable only for the rare situation where the claimant has an arguable defense to forfeiture that has been impaired by the passage of time. See United States v. Lovasco, supra, 431 U.S. at 790. But that plainly is not this case, and neither reason nor policy justifies use of the most extreme remedy in the situation involving the least significant violation. Cf. United States v. Morrison, supra, 449 U.S. at 366 n.2. The court of appeals erred in dismissing this forfeiture action. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General D. LAWRENCE JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General CARTER G. PHILLIPS Assistant to the Solicitor General JOHN FICHTER DE PUE DAVID B. SMITH Attorneys JUNE 1982 /1/ By contrast to the forfeiture provisions, Sections 1056 and 1058 of Title 31 authorize imposition of certain civil and criminal penalties only for "willful" violations of the reporting requirements. The courts have accordingly construed Section 1058 to require the government to prove "the defendant's 'knowledge of the reporting requirement and his specific intent to commit the crime.'" United States v. Dichne, 612 F.2d 632, 636 (2d Cir. 1979), cert. denied, 445 U.S. 928 (1980), quoting United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978). /2/ Title II of the Bank Secrecy Act of 1970 contains its own remission provision, 31 U.S.C. 1104: The Secretary may in his discretion remit any forfeiture or penalty under this subchapter in whole or in part upon such terms and conditions as he deems reasonable and just. /3/ At the time of the seizure in this case, the statute provided that if the value of the seized merchandise was not more tha $2,500, the customs officer could institute non-judicial, summary forfeiture proceedings. See 19 U.S.C. 1607-1609. The limit has now been raised to $10,000. Act of Oct. 3, 1978, Pub. L. No. 95-410, Section 111(a), 92 Stat. 897, 19 U.S.C. (Supp. IV) 1607. /4/ If the property is declared forfeited by the court, the claimant does have the option of filing a petition for remission or mitigation with the Attorney General (see 28 C.F.R. 9.1 et seq.), although petitions will not be entertained in cases where Customs has denied administrative relief. Section 9.3(g). Remission is not granted by the Attorney General unless the claimant can show an absolute lack of "knowledge or reason to believe that the property * * * was being or would be used in violation of the law." Section 9.5(c)(2). Mitigation is proper only "to avoid extreme hardship." Section 9.6(a). Thus, in contrast to petitions addressed to the Secretary of the Treasury, relief from the Attorney General is reserved for extraordinary circumstances. /5/ Even for the seizures of property appraised at less than $10,000, the claimant has a right to a judicial determination upon posting a $250 bond to cover the costs. 19 U.S.C. 1608. Customs has indicated to us that this right is invoked rather infrequently and that judicial review of these forfeitures is probably requested in no more than ten percent of the cases. /6/ The Customs area in which Vasquez was inspected contains large color posters that state (Pet. App. 16a-17a): If you transport, mail, ship, or receive more than $5,000 in currency of the United States or any other country, or monetary instruments (such as traveler's checks, negotiable instruments in bearer form, or money orders) into or out of the United States, you must file a report with U.S. Customs. Ask a Customs officer for the currency report form. Failure to report can result in forfeiture of the monies and civil and criminal penalties (31 U.S.C. 1101 et seq.). Several of these posters are prominently displayed above the baggage conveyor belts where passengers wait to claim their baggage prior to Customs examination. Additionally, these same color posters are displayed at eye level in the area where passengers wait to be processed by the Immigration and Naturalization Service (Pet. App. 17a). /7/ "R." refers to the clerk's record on appeal. /8/Vasquez's attorney previously had informed Customs that she had assigned her rights in the seized property to him. Much later, after the government challenged Vasquez's standing to seek return of the currency, counsel informed the district court that he had released his interest in the currency "other than as to any private agreement he may have with the claimant" (R. 92, 141, 148). /9/ At no point did Vasquez request that the currency be placed in an interest bearing account (R. 112). This was in fact done only after the case was on appeal. /10/ The conviction, for possession and sale of heroin in 1971, was set aside and Vasquez was granted a new trial because the evidence against her was obtained through use of an electronic interception that was not personally authorized by the Attorney General. See United States v. Vasquez, 348 F. Supp. 532 (C.D. Cal. 1972). /11/The agent opened a separate criminal file on the case in early November 1975. /12/ Compare 31 U.S.C. 1058 with 31 U.S.C. 1059. /13/ The only indication in the record as to why the criminal trial was delayed is that on November 11, 1976, Vasquez's attorney requested a continuance of the trial date until December 14 because he had "not completed his pretrial investigation" (R. 111). /14/ The conviction on the felony count was subsequently reversed because court files were left in the jury room during deliberations. United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979). /15/ The court noted that Vasquez's acquittal on the criminal charge under 31 U.S.C. 1058 and 1101 did not collaterally estop the government from seeking forfeiture of the currency because the two actions involved different factual elements and burdens of proof. See One Lot of Emerald Cut Stones v. United States, 409 U.S. 232 (1972). In order to establish a criminal violation of the currency reporting requirement, the government must prove beyond a reasonable doubt that defendant had knowledge of the requirement and acted willfully in disregard of it. E.g., United States v. Granda, 565 F.2d 922 (5th Cir. 1978). Willfullness need not be proved in a civil forfeiture action under 31 U.S.C. 1102, and the burden of proof would appear to be on the claimant once the government establishes probable cause. See 19 U.S.C. 1615. /16/ Despite the "quasi-criminal" character of such proceedings, however, the innocence of the owner of the property subject to forfeiture is not a defense, since the proceeding is in rem against the article to be forfeited. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974); Goldsmith-Grant Co. v. United States, 254 U.S. 505, 510-511 (1921); United States v. Twenty-Eight "Mighty Payloader" Coin-Operated Gaming Devices, 623 F.2d 510, 516 (8th Cir. 1980); United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir. 1977) (collecting cases). /17/ In our view the "property" interests of most claimants is easily overestimated. The reason no pre-seizure hearing is required is because the government official typically acts pursuant to plain statutory authority in seizing the property, and therefore the risk of error that is so substantial when private parties dispute over ownership (Fuentes v. Shevin, 407 U.S. 67, 90 (1972)) has been recognized by this Court to be reasonably low in civil forfeiture cases. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 (1974). Thus, the claimant's "interest" generally is more theoretical than real. See note 24, infra. /18/ Although district courts have sufficient discretion to protect the government's interest, there is no reason to require the courts to engage in the time consuming and difficult process of sorting out the scope of discovery pending the criminal prosecution. See United States v. Mellon Bank, N.A., 545 F.2d 869, 873 (3d Cir. 1976) (government's motion for stay of civil proceedings granted where defendant's might improperly exploit civil discovery to advance criminal case); Founding Church of Scientology v. Kelley, supra, 77 F.R.D. at 381 (government's interest in preserving secrecy of ongoing criminal investigation outweighed plaintiff's need for information). /19/ The opposition to the certiorari petition in the instant case sought (Br. in Opp. 16) to belittle the burdens imposed on the government and the courts by the court of appeals' prompt filing requirement. We urge that these burdens not be underestimated. There are tens of thousands of forfeiture seizures every year, many of which never reach the courts because disposed of administratively (see pages 6-7, supra) or otherwise. If a prompt suit had to be filed in many of these cases, however, most would be disposed of by default; as to those cases, the civil suit is of little interest or value to potential claimants. In the remainder of cases, the complaint, even if pro forma, would be followed by an answer and then the inevitable cascade of motions on various procedural matters. The claimant, who may be facing criminal charges, will almost certainly seek discovery. It is equally likely that the government will oppose any efforts to depose potential witnesses for the criminal trial or other attempts to discover the government's case and therefore will seek to stay all discovery. At a minimum, briefs and probably a hearing will be required in many additional cases. Assuming the forfeiture action is stayed, prompt filing becomes an empty gesture. On the other hand, if the government loses on its motions, then its criminal investigation may be seriously jeopardized; in many instances this could impel the government, contrary to Congress's intention, to forego the forfeiture. Nothing in the Due Process Clause requires the government to confront this type of Hobson's Choice or the courts to cope with this influx of relatively trivial litigation. /20/ In addition, the need to justify delays to the satisfaction of a court will require investigators to maintain daily records, which obviously "would impose an administrative burden on prosecutors, and reviewing them would place an even greater burden on the courts." United States v. Lovasco, supra, 431 U.S. at 794 n.14. See United States v. Marion, supra, 404 U.S. at 321 n.13. /21/ Some court of appeals' decisions have -- incorrectly in our view -- stressed the significance to the due process inquiry of the seized property's character as a "wasting asset." Ivers v. United States, supra, 581 F.2d at 1373; United States v. One 1970 Ford Pickup, 564 F.2d 864, 866 (9th Cir. 1977). The nature of the property seized, however, is wholly irrelevant to whether delay violates due process. If the property is properly seized and forfeitable, it makes no difference to the claimant how long the government waits to assume full control of the property. If the property has been wrongfully seized, the right to have the property returned promptly is the same whether the property depreciates, appreciates or remains the same in value. The right is unaffected; only the damages caused by the violation of that right will be altered. Whether currency is or is not a wasting asset therefore is in our view irrelevant to the due process inquiry. /22/ In her Brief in Opposition, respondent asserts that throughout the criminal and forfeiture proceedings she maintained that she lacked knowledge of the reporting requirement (Br. in Opp. 30 n.26). In the first place, as we recounted in our petition (Pet. 6 n.4), she was asked three times whether she or anyone in her party was carrying over $5,000, and responded "no" on each occasion; she made a similar denial to an identical question on a customs form; and there were posters throughout the customs area apprising travelers of the duty to report currency exceeding $5,000 brought into the United States. Thus, her claim is implausible at best. But, whatever uncertainty may exist regarding Vasquez's claimed lack of knowledge of her reporting obligation is wholly irrelevant to any legal issue in this forfeiture proceeding. Section 1102 does not require as a precondition to forfeiture that the individual know that the currency must be reported. See note 1, supra. /23/ Her requests for expedition in the administrative proceeding of course do not constitute an assertion of the relevant right; she had no right to a mitigation decision within any particular time because the administrative process is not subject to any due process requirements (see pages 41-45, infra). Moreover, the forfeiture was not barred by the court of appeals because of delay in processing the administrative petition, but because of delay in filing the judicial action. /24/ Although we assume the existence of a property interest for the purpose of analyzing what process is due, we do not concede that Vasquez was deprived of "property" by the delay between seizure and filing suit. The district court reliably determined that the currency was in fact forfeitable; consequently the government acquired both title and a right to possession of the currency when it was lawfully seized. In retrospect, therefore, it is clear that no property of the claimant was detained; the delay only postponed the government's full use of its own property. This is why dismissal of the forfeiture action is a particularly inappropriate remedy. See pages 46-48, infra. Obviously, a retrospective analysis of the existence of a "property" interest is not commonly employed, but it does seem uniquely appropriate where, as here, the issue is simply what consequence to attach to a delay in quieting title to property that at all relevant times in fact belonged to the government. /25/ There may be reasons why a district court would not immediately hear and determine the merits of a Rule 41(e) motion respecting property seized for forfeiture. But the court's consideration whether to review the lawfulness of a seizure or defer such a determination itself constitutes "process" guarding against the hazard of unjustified governmental invasion of private property interests. /26/ If the claimant is denied relief through this process, he still can contest the forfeiture in the civil action that the government is statutorily required to file in order to perfect its interest in the seized property. /27/ We do not concede that the mere filing of an equitable claim will invariably entitle the claimant to an order compelling the filing of a forfeiture action. There may be strong reasons why the government should be allowed to defer its suit, e.g., a pending criminal investigation; but if the delay is simply bureaucratic foot-dragging, then the equitable action should result in a speedy resolution of the forfeiture issue. /28/ The Ninth Circuit assumes that the filing of a civil forfeiture action is a panacea for the claimant's problems, but the filing of the complaint alone does very little to help the claimant. Certainly, if the government is pursuing a criminal investigation or prosecution, it will attempt to stay the civil action (see pages 24-25, supra). Even if the cases goes forward, it will be some time before the case is finally resolved and, if the claimant wins, the property is returned. For instance, in this case there was an eleven-month delay between the filing of the complaint and the judgment by the district court. In addition, there was a 13-month delay between the time the case was submitted on appeal and the court of appeals decided it. Thus, the filing of the forfeiture action, which the court of appeals regarded as crucial, is more realistically viewed as a relatively small step toward reacquisition of the property. /29/ The Ninth Circuit does recognize that if the delay is caused by the claimant there is no due process violation. See United States v. Di Rodio, 565 F.2d 573 (9th Cir. 1977). /30/ One other obvious distinction between Thirty-Seven Photographs and this case is the difference in the usefulness of a hearing. Whether the pictures were "obscene" was a vigorously contested issue that required adjudication. In this case, whether the claimant failed to declare this currency is not disputed at all and therefore requires no hearing. /31/ The historical purpose of the promptness language in 19 U.S.C. 1602-1604 was not to protect claimants' "due process" rights that were as yet unforeseen but rather to insure that federal revenues were collected in a timely fashion. When the provisions were originally enacted, customs duties were the principal source of federal revenue. United States v. Laurenti, 581 F.2d 37, 41 n.12 (2d Cir. 1978), cert. denied, 440 U.S. 958 (1979). /32/ A section-by-section analysis of the bill submitted by the Treasury Department stated (Hearings on H.R. 6738 Before the House Comm. on Ways and Means, 75th Cong., 1st Sess. 138 (1937)): The provisions of section 603 of the Tariff Act of 1930 * * * make it the duty of the collectors of customs to report to the Solicitor of the Treasury and to the local United States Attorney all seizures of merchandise made for violation of the customs laws. Since legal proceedings are not necessary in connection with many seizures, it is proposed to require reports to be made to the United States attorneys only in cases in which legal proceedings are required. /33/ We note parenthetically that it cannot always be assured that action on petitions for remission or mitigation will be prompt enough to suit all courts or claimants. In the first place, the sheer number of such petitions coupled with the limited manpower of the Customs Service precludes these cases from being disposed of as rapidly as they might be. Moreover, the administrative process, with its focus on equitable reasons for granting relief, is inherently more time consuming than a judicial forfeiture proceeding in which the government's entitlement to the seized property is either beyond dispute or dependent upon the resolution of a simple factual question. /34/ The court of appeals specifically noted her attorney's requests that the administrative petition be speedily resolved (Pet. App. 4a). /35/ In similar terms, 19 U.S.C. 1618, which governs remission or mitigation of penalties resulting from violations of the Tariff Act of 1930, states that "the Secretary of the Treasury, if he finds that such * * * forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such * * * forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just * * * " (emphasis added). /36/ For this reason the courts have held that they lack jurisdiction to review the action of the Secretary on a petition for remission or mitigation. See United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir. 1977); Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976); United States v. One 1971 Buick Riviera, 463 F.2d 1168 (5th Cir. 1972), cert. denied, 409 U.S. 980 (1972); United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964). /37/ "Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it." H.R. Rep. No. 2751, 81st Cong., 2d Sess. 3 (1950). See also Berkowitz v. United States, 340 F.2d 168, 170 (1st Cir. 1965); Smith, Modern Forfeiture Law and Policy; A Proposal for Reform, 19 Wm. & Mary L. Rev. 661, 662 (1978).