Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

Nos. 06-1795

06-1832

JUAN RODRÍGUEZ,

Petitioner, Appellant,

v.

DRUG ENFORCEMENT ADMINISTRATION,

Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Lynch and Lipez,

Circuit Judges.

Juan Rodríguez on brief pro se.

Jean B. Weld, Assistant U.S. Attorney and Thomas P.

Colantuono, United States Attorney on brief for appellee.

March 30, 2007
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Per Curiam. The appellant filed suit alleging that an

administrative forfeiture of $ 1905.00 violated due process because

he had contested the forfeiture, and he received no notices in the

administrative proceeding after an initial notice of seizure. The

district court dismissed for lack of subject matter jurisdiction.

We vacate and remand with instructions that the district court

consider the merits of the appellant's due process claims.

In dismissing for lack of subject matter, the district court

read the appellant's complaint too narrowly. The appellant alleged

that DEA clearly misconstrued his petition by interpreting it as

seeking only mitigation or remission. He argued that if he had not

intended to contest the forfeiture, he would have had no reason to

file the petition under oath (by the appropriate deadline), and

argue that the money could not be forfeited because it was obtained

legally and intended for legitimate purposes.

A clear misconstrual of his petition states a due process

claim within the district court's subject matter jurisdiction.

Gonzalez-Gonzalez v. United States, 257 F.3d 31 (1st Cir. 2001);

United States v. Giraldo, 45 F.3d 509 (1st Cir. 1995). The

appellant was entitled to an opportunity to be heard, with effect

given to the substance of his petition. United States v. One 1987

Jeep Wrangler, 972 F.2d 472 (2nd Cir. 1992); Longenette v. Krusing,

322 F.3d 758 (3rd. Cir. 2003); Scarabin v. Drug Enforcement Admin.,

919 F.2d 337 (5th Cir. 1990); Marozsan v. United States, 852 F.2d
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1469 (7th Cir. 1988); Gete v. Immigration & Naturalization Serv.,

121 F.3d 1285 (9th Cir. 1997).

Concerning the government's argument that the appellant never

used the term 'claim', which goes to the merits of the claim, we

note that if special language was required, the notice should have

said so. The appellant was entitled to notice that was not patently

misleading or uninformative. United States v. One Ford Coach, 307

U.S. 219 (1939); Glasgov v. United States Drug Enforcement Admin.,

12 F.3d 795 (8th Cir. 1993).

The appellant also claimed that the administrative proceeding

denied due process because he received no notices in the ongoing

proceeding. He could neither correct DEA's misconstrual of his

petition nor seek timely reconsideration of the denial of

administrative relief.

While certified mail may often satisfy due process, the

inquiry is fact-specific. United States v. One Star Class Sloop

Sailboat, 458 F.3d 16, 22-3 (1st Cir. 2006). The district court did

not explore whether the notice was reasonable under the specific

circumstances of this case. The record supported the appellant's

contention that MCI-Concord twice signed certified mail receipts on

his behalf when he was elsewhere, and DEA had some reason to know

that he was elsewhere. We have warned that "the government must

show, if the issue is contested, that the notice was mailed to the

prison in which the claimant was in fact being held." Whiting v.
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United States, 231 F.3d 70, 76-77 (1st Cir. 2000). See also United

States v. Williams, 130 Fed. App. 301 (11 Cir. 2005). Moreover, th

if the government knew or had reason to know that the notice would

not reach the appellant then notice was inadequate. Jones v.

Flowers, 126 S. Ct. 1708, 1717 (2006).

Finally, concerning MCI-Concord, we warn: "if the government

knew that mail delivery in a particular prison was unreliable but

sent the notice by this means without any other precaution, mail

delivery would not satisfy due process." Whiting, 231 F.3d at 77.

We vacate and remand with instructions that the district court

entertain the merits of the appellant's claims.

So ordered. 1st Cir. Loc. R. 27.0(c).