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. e du/thir dc ir c uit_2000/109Filed May 24, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 98-3578 and 98-3579

UNITED STATES OF AMERICA

v.

ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING MACHINES; ONE HEALTH TECH COMPUTER *Reginald McGlory, Appellant in No. 98-3578 *(Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00138)

UNITED STATES OF AMERICA

v.

ASSORTED JEWELRY

*Reginald McGlory, Appellant in No. 98-3579 *(Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00370)

On Appeal From the United States District Court For the Western District of Pennsylvania District Judge: Honorable D. Brooks Smith

Submitted Under Third Circuit LAR 34.1(a) July 13, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.ARGUED EN BANC: November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL and BARRY, Circuit Judges.

(Filed May 24, 2000)

MICHAEL A. YOUNG, ESQUIRE (ARGUED) 165 Christopher Street New York, NY 10014

Counsel for Appellant

HARRY LITMAN, ESQUIRE (ARGUED) United States Attorney

BONNIE R. SCHLUETER
MARY McKEEN HOUGHTON,

ESQUIRE Assistant United States Attorney

633 United States Post Office and

Courthouse Pittsburgh, PA 15219

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In these consolidated appeals Reginald McGlory challenges the results of two forfeiture proceeding s. The first appeal requires that we revisit the question of the notice that the United States must provide when it pursues forfeiture proceedings against the property of an incarcerated defendant in its custody. The second c oncerns the District Court's use of the doctrine of laches to prevent McGlory from challenging a forfeiture proceeding in which the notice given for the forfeiture is later discov ered to be constitutionally inadequate.

2In the first appeal, which concerns forfeiture of c ertain

items of jewelry, the government directed notice by certified mail to the facility in which McGlory was incarcera ted. McGlory maintains that he did not receive the notic e, and that the government should have ensured that he rec eived personal notification of the proceedings against hi s property. In United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc), which involved different property of McGlory's that was subject to administrative forfei ture, this Court ruled that merely sending notice to the Marsh als Service, in whose custody McGlory was held, did not satisfy the Constitution. We held that "at a minimum, due p rocess requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement." Id. a t 674. We noted, however, that "[w]hether anything more is re quired is not presently before us." Id. This appeal square ly presents the question whether "more" is required. M cGlory asks that we rule the judicial forfeitures at issue in this

case invalid because he did not receive actual not ice of the proceedings.

As in all cases in which proper notice under the Du e Process Clause is at issue, the touchstone of analy sis is whether the notice was "reasonably calculated, unde r all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportuni ty to present their objections." Mullane v. Central Hanov er Bank & Trust, Co., 339 U.S. 306, 314 (1950). The governm ent urges that mailing a letter by first-class mail to the location of the interested party is always sufficient. McGlo ry, in contrast, argues that a higher standard should prev ail when the party is held in custody by the same gover nment that wishes to serve notice upon him. He maintains that the government was in the position to ensure actual notice of the proceedings. Such notice has been required b y several of our sister circuits, most notably by the Second Circuit in Weng v. United States, 137 F.3d 709 (2d Cir. 1998).

Though there is much to recommend the actual notice standard when the United States Attorney is dealing with

3federal prisoners and detainees, we are not prepare d to

require the government to bear the evidentiary burd en of establishing actual notice in all cases. Such a 780<!>demonstration could impose needless litigati on costs,

especially if the due process challenge arises year s after the conclusion of the initial proceedings. Moreover, th e Supreme Court has never required the demonstration of actual notice. At all events, the jurisprudence of constitutional notice appropriately focuses not on what actually occurred, but rather on the procedures tha t were in place when notice was attempted. Evaluating the adequacy of these procedures requires consideration of the context in which they occur.

We conclude that the circumstances surrounding the federal government's incarceration of a prisoner re quire greater efforts at ensuring notice than would be ex pected for individuals at liberty in society. When one is in prison, the relative difficulty to the government to effect actual notice is reduced, while the ability of prisoners t o ensure that they receive notices directed to them suffers. However, we stop short of the Weng standard and adopt an app roach that focuses on the extent that procedures are reas onably likely to effect actual notice. Under this regime, the government's obligations do not end at the mailbox. Rather, we hold that if the government wishes to rely on di rect mail, it bears the burden of demonstrating that pro cedures at the receiving facility were reasonably calculate d to deliver the notice to the intended recipient. On this recor d, we cannot determine whether such a system was in place in McGlory's facility. We will therefore vacate the ju dgment

and remand to the District Court for further factua l findings on the sufficiency of the notice.

In the second forfeiture now before us, which conce rns certain electronic equipment, the notice provided t o McGlory concededly fell short of the constitutional minimum. The government contends, however, that McGlory's attempt to recover the forfeited property is barred by the doctrine of laches, and the District Court a greed. We

conclude that the doctrine of laches should not be considered when the issue is whether a judgment is void. If McGlory unreasonably delayed in seeking the recover y of

4his property, the proper time to raise the issue is in a

proceeding in which he seeks recovery from the government. The District Court will have to conside r whether such recovery is available by a motion to v acate that arises under Fed. R. Civ. Proc. 60(b) or if Mc Glory will have to proceed by other means. We will therefore v acate the District Court's judgment that McGlory's action was barred by laches.

I.

This is the third time that forfeitures of McGlory' s property have come before this Court, and the facts surrounding his arrest and detention are described several times in the Federal Reporter, most recently in Uni ted States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc); see also United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir. 1992) (upholding McGlory's criminal conviction and sentence). We therefore need not rescribe this stor y save for the highlights.

On September 8, 1989, Pittsburgh police officers an d Drug Enforcement Administration agents arrested McG lory for conspiracy to possess heroin with intent to dis tribute. He was ultimately convicted of conspiracy to posses s and distribute heroin, possession of heroin with intent to distribute, possession of a firearm by a convicted felon, use of a firearm in a drug trafficking operation, and l aundering drug proceeds. He received a life sentence. On the date of his arrest, the officers searched several residence s used by McGlory and seized numerous items of property, incl uding, at issue in this appeal, one Toshiba color televisi on set, two answering machines, one Health Tech computer, and assorted jewelry. In 1990, the United States Attorn ey instituted civil judicial forfeiture actions agains t these items

under 21 U.S.C. S 881.

Until McGlory was sentenced on February 11, 1991, h e was in the custody of the United States Marshals Se rvice,

and was housed in various detention facilities with which it had contracted. In initiating the forfeiture agains t the jewelry, the government mailed notice of the action to

5McGlory care of the Ohio County Jail in Wheeling, W est

Virginia, where he was apparently being held at the time. The notice was received at the jail on November 9, 1990 and signed for by one of the jail's officers. The g overnment also sent notice to the jail by regular mail and ma iled notice by certified mail to one of McGlory's pre-incarcera tion residences. That letter was not accepted. Finally, the government sent notice to McGlory's ex-wife, and to an attorney by the name of William Magann,1 and it pu blished notice for three consecutive weeks in a general cir culation newspaper. No one filed a claim or answer as direct ed by the notice to those seeking to contest the forfeitu re. A default judgment was entered in the government's fa vor on January 7, 1991. The government ultimately sold the jewelry for $9,950.

The government also initiated forfeiture proceeding s against the television set and the other equipment, mailing the notice to an address used by McGlory. The gover nment also sent notice to McGlory's mother and Magann and published notice in a newspaper. This proceeding wa s resolved by default judgment in the government's fa vor on May 31, 1990.

McGlory maintains that he never received any notice , and he was unaware of any of the forfeiture proceedings until December 1993. On April 11, 1994, he filed a pro se motion pursuant to Fed. R. Crim. Proc. 41(e), seeking retu rn of all the property that had been seized from him. The Dis trict Court dismissed the motion without prejudice on Jan uary 6, 1997, and McGlory promptly filed a motion to rec onsider the denial of his 41(e) motion. Shortly thereafter, he filed a motion to vacate the judgments in the two earlier proceedings. The Magistrate Judge to whom the case was assigned concluded that no constitutional notice vi olation occurred in the jewelry forfeiture proceeding, but that there was a violation in the proceeding concerning the el ectronic equipment. Notwithstanding this conclusion, he

recommended that this claim be dismissed based on t he

___________________________________________________ ______________

1. In proceedings below, McGlory claimed not to kno w who Magann is, and the government does not contend that he represe nted McGlory in

this matter.

6doctrine of laches because: (a) McGlory had inexcus ably

delayed seeking recovery of the property; and (b) t his delay was prejudicial to the government. Relying on the 780<!>Magistrate Judge's report, the District Cour t denied

McGlory's motion to vacate the judgments on Septemb er 23, 1998. McGlory filed a timely notice of appeal.

The District Court had jurisdiction over the forfei ture proceedings under 28 U.S.C. SS 1331, 1345, and 1355 , and over the motion to vacate judgment under 28 U.S.C. S 1331. We have jurisdiction to review the District Court's

final order under 28 U.S.C. S 1291. Our review over constitutional issues is plenary, see United States v. Various Computers & Computer Equip., 82 F.3d 582, 5 89 (3d Cir. 1996), as is our review of the legal compo nents of the laches issue, see Bermuda Express, N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989).

II.

The central issue in the appeal from the jewelry fo rfeiture is whether a pretrial detainee is entitled to actua l notice of judicial forfeiture proceedings initiated against h im.2 The District Court concluded that attempting service in jail via the mail satisfied constitutional requirements for the service of notice. It primarily relied upon two cas es. First, it looked to our opinion in United States v. $184,5 05.01, 72 F.3d 1160 (3d Cir. 1995), another McGlory forfeitur e case, which taught that the government must at least atte mpt service on an incarcerated defendant in the place w here he is being detained. Second, it cited Herbert v. Unit ed States, 1996 WL 355333 (E.D. Pa. June 25, 1996), aff 'd wit hout opinion, 103 F.3d 114 (3d Cir. 1996), which declare d that notice to the prison in which the defendant was incarcerated met due process requirements. Because it was

___________________________________________________ ______________

2. The relevant precedents in this area involve bot h judicial and administrative forfeitures. Insofar as both judicia l and administrative forfeiture proceedings carry the potential to affec t the property rights

of the owner, there would appear to be no reason to di stinguish between the notice required by the Due Process Clause in th e two situations. At all events, the issue presented in this appeal sole ly concerns judicial

forfeitures.

7not affirmed by a published opinion, Herbert is no t

precedential under our Internal Operating Procedure s. See, e.g., United States v. Breyer, 41 F.3d 884, 892 n.1 1 (3d Cir. 1994); IOP S 6.2.1 (2000 ed.). The District Court

nevertheless reasoned that the two cases indicate t hat, in this circuit, attempting service by mail to a priso ner in jail meets due process requirements.

We have never addressed the specific claim that McG lory urges upon us now. Our most recent pronouncement on the issue, which also involved McGlory, held no mor e than that the government agency pursuing the forfeiture must send notice to the facility at which the detainee i s actually incarcerated and that it may not rely on another ag ency to do so. See United States v. McGlory, 202 F.3d 664 ( 3d Cir. 2000) (en banc). We turn then to consideration of w hether due process requires the government to go further a nd provide actual notice to an incarcerated defendant against whom it has initiated forfeiture proceedings.

A.

Our analysis perforce begins with Mullane v. Centra l Hanover Bank & Trust, Co, 339 U.S. 306 (1950), whic h established the framework for evaluating the adequa cy of notice for due process purposes. As described by th e Supreme Court, the judgment is a highly contextual one. "An elementary and fundamental requirement of due process in any proceeding which is to be accordedfi nality is notice reasonably calculated, under all the circ umstances, to apprise interested parties of the pendency of th e action and afford them an opportunity to present their obj ections." Id. at 314 (emphasis added). A person or entity see king to give notice must employ means "such as one desirous of actually informing the absentee might reasonably ad opt to accomplish it." Id. at 315.

Under this framework, it is clear that when an incarcerated individual is the one being served, th e serving party must attempt to effect service where the pris oner may be found--that is, in prison, not the pre-incarcera tion address. See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (per curiam). As the Magistrate Judge's report reco unted,

8this Court has ruled that notices in other forfeitu re

proceedings involving McGlory were inadequate when they did not attempt to reach him where he was incarcera ted. See United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995).

B.

The government argues that precedent supports the conclusion that direct mail always satisfies due pr ocess requirements. Indeed, Supreme Court authority indic ates that mailing to the location where the party can be found usually suffices for due process purposes. See Mull ane, 339 U.S. at 318. In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983), the Court opined, "[n]otice b y mail or

other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property inter ests of any party . . . if its name and address are reasonably ascertainable." The government points to this langu age and to Tulsa Professional Collection Services v. Pope, 485 U.S. 478 (1988), for the proposition that notice by dire ct mail suffices to establish its successful discharge of i ts obligations to McGlory under the Due Process Clause . See id. at 490 ("We have repeatedly recognized that mai l service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.").

While this argument carries strong surface appeal, it ignores the framework that Mullane decreed. Precede nts endorsing direct mail as a means of meeting constit utional notice requirements in certain contexts do not esta blish that such mailings result in per se satisfaction of notice requirements. Adequacy of notice is always evaluate d by reference to the surrounding circumstances. See Mul lane,

339 U.S. at 314. "The focus is on the reasonablenes s of the balance, and, as Mullane itself made clear, whether a particular method of notice is reasonable depends o n the particular circumstances." Tulsa Professional Colle ction Serv., 485 U.S. at 484. For example, in Covey v. To wn of Somers, 351 U.S. 141, 146-47 (1956), the Supreme Co urt held that notice sent to an incompetent taxpayer wa s inadequate, notwithstanding that the notice was sen t by

9direct mail. Though the facts of Covey are not, of course,

analogous to the case at hand, that case's disposit ion stands as a stark example of the imprudence of glea ning from Supreme Court precedent a per se rule that mai l will always be adequate notice. The proper effort at giv ing notice, the effort "such as one desirous of actuall y informing the absentee might reasonably adopt to accomplish it," Mullane, 339 U.S. at 315, will vary under

the circumstances.

C.

Our sister circuits have differed on what kind of n otice is

the constitutional minimum for incarcerated individ uals whose property is subject to forfeiture. United Sta tes v. Clark, 84 F.3d 378, 380 (10th Cir. 1996), involved the government's attempt to serve notice of an administ rative forfeiture to a pre-trial detainee by mailing it to the facility where he was actually held. The Tenth Circuit held that this notice met the demands of due process, even if the party served did not actually receive the mailed no tice. See id. at 381. In concluding that the notice was suffi cient, the court employed a logic similar to that urged by the government and pointed to the Supreme Court's indic ation

in Mennonite Bd. of Missions that mail is a constit utionally acceptable form of notice. See id. "We have found n o case suggesting that service by mail is inadequate or re quiring the government to personally serve an interested pa rty at the place of incarceration. We decline to create su ch a requirement here." Id.

Other courts of appeals, however, have required mor e. In Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the Second Circuit announced a requirement of actual no tice. Weng involved several administrative forfeiture not ices, one of which was sent by certified mail to the federal facility at

which the defendant was detained. See id. at 714. T he court determined that Mullane's balancing analysis compelled more. Noting the importance of the proper ty interest at stake to the party notified and his ina bility to rely on others to vindicate those interests, see id . at 714- 15, the court declared that the interests and burde ns on the other side of the scale were less pronounced."[ A]t least

10where the owner is in federal custody on the very c harges

that justify a federal agency in seeking the forfei ture, there is no undue hardship to the agency in insuring that the owner-prisoner actually receive the legally require d

notification." Id. at 715. The court further noted the disparity in the parties' relative ability to take precautions to ensure the prisoner's receipt of notice.

First, as a prisoner, the owner is unable to insure that he will receive the notice once the post off ice has

delivered it to the institution. The owner i s entirely dependent on the institution to deliver his mail to him. Second, because the owner's jailor--the Bure au of Prisons--is part of the same government . . . as the agency seeking to give notice, the forfeitin g agent can in all probability easily secure the Bureau' s cooperation in assuring that the notice will be delivere d to the

owner and that a reliable record of the deli very will be

created.

Id.

The court concluded that, under the circumstances, merely sending notice to the detention facility wit hout ensuring actual delivery to the prisoner is not not ice "such as one desirous of actually informing [the owner] m ight reasonably adopt." Id. (quoting Mullane, 339 U.S. a t 315). Instead, the court held that when the prisoner is i n federal custody on the charges that are the basis of the fo rfeiture, "mailing of a notice to the custodial institution i s not adequate unless the notice is in fact delivered to the intended recipient." Id.; see also United States v. Woodall, 12 F.3d 791, 794-95 (8th Cir. 1993) ("[I]f the gove rnment is incarcerating or prosecuting the property owner whe n it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires

that either the defendant or his counsel receive ac tual notice of the agency's intent to forfeit in time to decide whether to compel the agency to proceed by judicial condemnation.").

As Weng recites, the circumstances of prisoners dif fer greatly from free citizens, a fact that potentially alters the evaluation of what steps are reasonably calculated to

11provide notice. When an individual is incarcerated at a

location of the government's choosing, the governme nt's ability to find and directly serve him or her with papers is at or near its zenith. Not only does the government know where to find the person, it can be equally sure th at he or she will be there when the papers are delivered. In deed, it can even move the person to a more convenient locat ion if it so chooses. This appears especially the case whe re, as here, ongoing criminal proceedings against the pris oner brought the prisoner into frequent face-to-face con tact with
government attorneys.

For his part, a prisoner lacks the ability to take steps to ensure that his mail is actually delivered to him. This dilemma is especially acute for a prisoner who may be transferred from facility to facility, complicating efforts to effect service. In the outside world, an individual who changes addresses can arrange to have mail forwarde d and can notify interested parties as to the change of a ddress. While a prisoner may take similar steps, the effect iveness of these measures may depend in some degree on such independent factors as prison policies vis-a-vis th e forwarding of mail or the amount of forewarning a p risoner receives of an impending transfer. We also note tha t a prisoner may not know how long he or she will be at the changed address, which may make prison forwarding difficult. Shades of the same problem also exist fo r a prisoner who is not moved, but remains at one facil ity. If a person lives in an apartment building where the distribution of mail among the residents leads to l ost missives, that person has some recourse, through complaint or, possibly, moving elsewhere. Such opti ons are necessarily curtailed for the prisoner.

The relative burdens and benefits of additional ste ps to ensure actual notice, therefore, suggest that requi ring greater efforts at assuring notice by the governmen t is appropriate. In other words, there is much to comme nd the Weng approach, and as an aspiration, the Weng rule comports with our ideas of the sort of effort that the government should undertake when it wishes to effec t notice of a forfeiture proceeding against a prisone r in federal custody. On the other hand, Weng involved a

12prisoner held in a federal, rather than a state, fa cility. As

the Seventh Circuit has observed, "[t]he prophylact ic Weng rule, requiring actual notice, becomes less reasona ble as the federal government exercises less control over the detainee." Donovan v. United States, 172 F.3d 53, 1 999 WL 50847, at *2 (7th Cir. Feb. 2, 1999). The rejoinder to this argument is that, though McGlory was held in a stat e facility, he was held pursuant to his arrest on fed eral charges, and in contracting with state facilities t o house pre-trial detainees, the federal government has the ability to demand procedures that will allow the delivery of a dequate notice for prisoners.

Though attractive, the Weng rule does present probl ems. The real difficulty with the Weng rule lies not in requiring the government to demonstrate actual notice, but ra ther the evidentiary burden that such a standard could i mpose after the passage of time. Given the temporal gap t hat may separate a forfeiture from a due process challenge to the proceedings, it is easy to imagine situations in wh ich proof of the delivery of notice may be unavailable, even if such notice was properly served. An overly strict notice requirement, therefore, could lead to unsettling th e outcome of completed proceedings based on nothing b ut bare allegations of a party who had lost property.

More importantly, the Weng approach undermines the procedural analysis that has heretofore animated th e Supreme Court's dictates on this subject. The Court has never employed an actual notice standard in its jurisprudence. Rather, its focus has always been on the procedures in place to effect notice. See, e.g. , M ennonite Bd. of Missions, 462 U.S. at 799-80.3 We think this foc us appropriate. Thus, while we will not adopt the Weng rule, the concerns animating Weng will inform our decisio n as to the procedures designed to give notice. We hold tha t, while

___________________________________________________ ______________

3. It is true that Tulsa Prof. Collection Services v. Pope, 485 U.S. 478,

485 (1988), speaks in terms of requiring "actual notice " to those with a liberty or property interest at stake in a proceedi ng. That opinion, however, also describes mail service as an acceptab le means of providing actual notice. See id. at 490. In our view, therefo re, "actual notice" is employed not as a rule, but rather as a goal agains t which various forms of effecting actual notice are evaluated.

13the government need not prove actual notice to the

prisoner, if it chooses to rely on less than actual notice, it bears the burden of demonstrating the existence of procedures that are reasonably calculated to ensure that such notice will be given. Thus, our rule requires the government to ensure that proper procedures are emp loyed in the facilities where it chooses to house its pri soners.4 Of course, if there is a signed receipt from the serve d party, the government does not then have to prove anything about the procedures that were in place.5

Because the District Court did not make findings on the sort of procedures in place at the facility at whic h McGlory was housed and whether these procedures were reason ably calculated to ensure that the notice, once addresse d to McGlory, would still reach him upon arrival at the prison (and indeed, would only be accepted were McGlory ac tually present), we will vacate the District Court's rulin g as to the jewelry forfeiture and remand for further proceedin gs consistent with this opinion.

___________________________________________________ ______________

4. Our ruling is analogous to the approach taken by the Ninth Circuit in United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that case, the court declined to require actual notice t o a forfeiture

defendant when notice was sent by certified mail to the facil ity in which he was held awaiting trial and evidence was presented that the facility handled certified mail to inmates by opening the letters in their presence and, after checking for contraband, giving the contents directly to them. See id. at 1315. Under these circumstances, the court c oncluded that sufficient notice was given. See id. at 1316.

5. Our approach would also apply to the problem of the relocated prisoner. Just as the government can monitor whethe r mail reaches a prisoner within a facility, it can similarly ensure that mail will follow

an inmate who is transferred from one facility to anot her. See generally Small v. United States, 136 F.3d 1334, 1337 (D.C. C ir. 1998) (deeming notice inadequate when notice sent to jail and retu rned absent indication that effort to find prisoner for resendi ng would be burdensome to government); Armendariz-Mata v. U.S. Dep't of Ju stice, D.E.A., 82 F.3d 679, 683 (5th Cir. 1996) (holding notice inadequate when notice to jail returned undelivered and sender made no further inq uiry).

14III.

In the forfeiture proceeding regarding the Toshiba television and other electronic equipment, the gove rnment made no attempt to serve McGlory in jail. For due p rocess purposes, therefore, the attempted notice was clear ly inadequate. Though the government concedes the constitutional deficiency of its notice, it contend s, and the District Court agreed, that McGlory's motion to vac ate judgment on this forfeiture is precluded by the doc trine of laches. We disagree.

A.

The District Court treated McGlory's motion as aris ing under Federal Rule of Civil Procedure 60(b), but co ncluded that the improper notice given by the government of the forfeiture proceedings rendered the judgments, as a pplied against him, "voidable" rather than "void," as prov ided by Fed. R. Civ. Proc. 60(b)(4). We think this conclusi on incorrect. As a general matter, we have held that t he entry of a default judgment without proper service of a c omplaint renders that judgment void. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985). The majority of courts of appeals to consider the fate of a prior forfeiture proceeding that violated notice requirem ents agree that a judgment issued without proper notice to a potential claimant is void. See United States v. Ma rolf, 173 F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v. D.E.A., Asset Forfeiture Unit, 92 F.3d 648, 654 (8t h Cir. 1996); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir. 1996); United States v. Giraldo , 45 F.3d 509, 512 (1st Cir. 1995). But see United States v. Dusen bery, 201 F.3d 763, 768 (6th Cir. 2000) (treating forfeit ure as voidable rather than void); Boero v. D.E.A., 111 F. 3d 301, 307 (2d Cir. 1997) (same).

In light of our decision in Gold Kist, we are in ac cord with the majority view. Gold Kist involved a service of a summons and complaint in a manner that did not conf orm with Pennsylvania law. See Gold Kist, 756 F.2d at 1 8. Defendants in that action challenged the default ju dgment

15entered against them. Citing Fed. R. Civ. Proc. 60( b)(4), we

declared that "[a] default judgment entered when th ere has been no proper service of complaint is, a fortiori, void, and

should be set aside." Id. at 19. Because of the com plaint's improper service, as well as the entry of default j udgment before the expiration of the time for filing an ans wer, see id., the Gold Kist panel refrained from considering other factors that could also justify the setting aside o f a default judgment. See id.

The same logic applies here. Though we understand t he concern expressed by the Sixth Circuit in Dusenbery that a prisoner claimant could sit on his or her rights un til after the passage of the statute of limitations for the g overnment to reinitiate a proceeding, see Dusenbery, 201 F.3d at 768, we conclude that this concern can be addressed by o ther means, see id. at 769 (Cole, J., dissenting). As we explain below, a holding that the forfeiture against McGlor y's property was void does not equate to a ruling that he is entitled to a return of the property or monetary re lief from the government, because a Rule 60(b) motion is not a claim for the return of property. McGlory will therefore have to pursue further proceedings to recover his property, and it is in these proceedings that the government may inv oke defenses that are predicated on McGlory's alleged d elay.

B.

The District Court ruled that McGlory's motion to v acate was barred by the doctrine of laches. The doctrine of laches hails from equity, and is invoked when two essentia l elements exist: inexcusable delay in instituting su it, and prejudice resulting to the defendant from such dela y. See

Central Penn. Teamsters Pension Fund v. McCormick D ray Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996). We c onclude that the District Court was incorrect to have appli ed laches analysis to McGlory's motion.

McGlory's motion was to vacate the forfeiture judgm ents against him and is treated, as discussed above, as arising under Fed. R. Civ. Proc. 60(b). It is understandabl e why the District Court may have thought that the doctrine o f laches applied. A motion under Rule 60(b) is equitable in nature,

16so it is reasonable to believe that equitable doctr ines apply.

See Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947) ("The proceeding by motion to vacate a judgment is not an independent suit in equity but a legal remedy in a court of law; yet the relief is equitable in character and m ust be administered upon equitable principles."); see also Winfield Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1 090 (10th Cir. 1970) ("Rule 60(b) . . . specifically preserve s the right to attack a judgment by an independent equitable ac tion."); In re Brown, 68 F.R.D. 172, 174 (D.D.C. 1975) (desc ribing Rule 60(b) as codification of methods of gaining eq uitable relief from judgments).

In light of our ruling that the judgment against Mc Glory in the electronic equipment forfeiture is void, how ever, no passage of time can transmute a nullity into a bind ing judgment, and hence there is no time limit for such a motion. It is true that the text of the rule dictat es that the

motion will be made within "a reasonable time." See Fed. R. Civ. Proc. 60(b). However, nearly overwhelming auth ority exists for the proposition that there are no time l imits with regards to a challenge to a void judgment because o f its status as a nullity; thus laches is no bar to recou rse to Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994) (collecting cas es); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993 ); Katter v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734 (8 th Cir. 1985); In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985); Misco Leasing, Inc. v. Vaughn , 45 0 F.2d 257, 260 (10th Cir. 1971); Austin v. Smith, 312 F.2 d 337, 343 (D.C. Cir. 1962); Moore v. Positive Safety Manu facturing Co., 107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Ro dd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he reasonable time criterion of Rule 60(b) as it relat es to void judgments, means no time limit because a void judgm ent is no judgment at all.") (citation and quotation omitt ed).

We agree that no passage of time can render a void judgment valid, and a court may always take cogniza nce of a judgment's void status whenever a Rule 60(b) moti on is brought. Without addressing any other reason to bar a Rule 60(b) motion that attacks a judgment as void,6 we h old that

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6. We also note that McGlory's delay vis-a-vis atta cking the judgment (as opposed to inquiring into the disposition of his pr operty, an issue that

17laches may not be used to preclude such a motion. C f.

Micro Leasing, 450 F.2d at 260 ("The cases say that a void judgment acquires no validity as the result of lach es on the part of the adverse party. We are not asked to cons ider whether under any particular circumstances a movant under Rule 60(b) may be estopped or precluded fromf iling such a motion.") (footnote omitted).

C.

Though we hold that laches is not available to prec lude a claimant from attacking a void judgment, our hold ing is not to be construed as allowing a petitioner to sit on his or her rights. It is true that if a court is able to d etermine that a prior judgment is indeed void, it should declare it as such, but that does not mean that other remedies, s uch as the actual return of property or its cash value, ar e immune from defenses of waiver or laches. In other words, we conclude that the potential prejudice that arises f rom such delay is best dealt with outside of the Rule 60(b) context.

Whether McGlory unreasonably delayed in seeking recovery of his property in general, which is the l aches issue considered by the District Court, is a matter distinct from whether the judgment that forfeited the proper ty was void. That is not, however, a matter that is before this Court. We are only reviewing the denial of McGlory' s motion to vacate. Even if he prevails on this motion, that does not mean that he is entitled to any monetary relief or relief in the form of a transfer of property. It has been hel d that

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is not before us) was clearly not unreasonable. He maintains that he promptly sought relief from the judgments against h im once he learned of them in 1994, and the District Court made no fac tfindings that indicate that McGlory learned of the judgments at a n earlier date. Nor does this appear to be a situation in which McGlory can be accused of having waived his ability to bring a Rule 60(b) mot ion, as he did not previously launch a Rule 60(b) attack against the j udgments. Cf. Beller & Keller v. Tyler, 120 F.3d 21, 23-24 (2d Cir. 1997 ) (acknowledging that laches cannot give a void judgment validity, but su ggesting that a motion may be untimely when the voidness challenge is rais ed on a successive motion to vacate).

18Rule 60(b) does not provide for such remedies. See United

States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-57 (5th Cir. 1972) (holding that monetar y remedy for void forfeiture, which depends on waiver of sovereign immunity, lies not in Rule 60(b) but in 2 8 U.S.C. S 1346(a)); see also United States v. $119,980.00, 680 F.2d 106, 107-08 (11th Cir. 1982) (holding Rule 60(b) ma y not be used to impose affirmative relief beyond setting aside prior judgment); United States v. One Douglas A-26B Aircraft, 662 F.2d 1372, 1377 (11th Cir. 1981) (sam e). In order to obtain such relief, McGlory may have to lo ok

elsewhere.

It is in the pursuit of his remedies that McGlory's delay, if any, will become an issue. Though the vacatur of the earlier judgment will be a powerful weapon for McGl ory in such an effort, it will not decide the issue. McGlo ry would have to act within the confines of whatever legal f ramework surrounds the legal or equitable remedy he will ele ct to pursue. At that time, the District Court may consid er whether the doctrine of laches applies, or whether the sixyear statute of limitations for suits against the f ederal government is applicable. See 28 U.S.C.S 2401(a). I t would appear that the federal statute applies, see Menkar ell v. Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972) (applying six-year statute of limitations of 28 U.S .C. S 2401(a) in attempt to recover forfeited property) , even if the action is characterized as equitable, see, e.g.

, Blassingame v. Secretary of Navy, 811 F.2d 65, 70 ( 2d Cir. 1987) ("[T]he merger of law and equity assured that section 2401(a) covers both legal and equitable actions.").

If the District Court concludes laches analysis to be in order anyway, it will have to determine the interpl ay between laches and the relevant statute of limitati ons, giving consideration to the cases that indicate tha t if a suit is brought within the statutory period, laches woul d generally be unavailable. See, e.g., Central Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996); Henry v. United States, 46 F.2 d 640, 642 (3d Cir. 1931) ("While there is no statute of l imitations in equity, yet it generally in this respect follows the law, and will, in the absence of special extenuating

19circumstances . . . regard the delay as inexcusable and

refuse relief after the time of the statute of limi tations in that particular locality has expired."); Ikelionwu v. United States, 150 F.3d 233, 238 (2d Cir. 1998) (declining to invoke laches when suit to recover forfeited proper ty brought within statutory period). Also, insofar as it considers the doctrines of equity, the District Cou rt will also have to consider whether the party asserting t he

defense of laches has clean hands. See United State s v. Marolf, 173 F.3d 1213, 1219 (9th Cir. 1999) (refusi ng to reverse district court's rejection of laches defens e in light of government's "inexplicable fail[ure] to remedy" an improper administrative notice or initiate proper judicial proceedings).

We reference the foregoing authority not to express any view on the merits but only to flag important issue s that the District Court did not appear to consider in it s analysis of laches. At all events, we make no ruling on issu es of inexcusable delay because all we have before us is the motion to vacate, and, as we have held, laches anal ysis does not apply to such a motion. Finally, in ruling that the judgment in the electronic equipment forfeiture is void, we offer no opinion as to whether the government is pr ohibited from reinitiating the forfeiture action against McG lory or if the passage of the relevant statute of limitations has been

tolled. The District Court will have to consider th e issue should the government attempt to reinitiate such proceedings.

The judgment of the District Court will be vacated and the case remanded for further proceedings consisten t with this opinion.

20ALITO, Circuit Judge, concurring and dissenting:

I join parts I and III of the opinion of the court and concur in the judgment insofar as it relates to No. 98-3578. However, I respectfully dissent from the court's di sposition of No. 98-3579 and from part II of the opinion of t he court, which adopts an interpretation of due process that has no basis in prior decisions of the Supreme Court or ou r circuit.

The question before us is not whether it would be g ood policy to require the government in forfeiture proc eedings to provide notice to interested parties by some means superior to the mail. Rather, the question is whether the go vernment complied with the minimum requirements of the Due P rocess Clause by sending notice by mail (return receipt re quested) to McGlory at the facility where he was detained. U nder Supreme Court precedent, this met constitutional standards. The Supreme Court has repeatedly referre d to the service of notice by mail as sufficient to sati sfy the minimum requirements of due process. See, e.g. , Tu lsa Prof 'l Collection Services v. Pope, 485 U.S. 478, 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 8 00 (1983) ("Notice by mail or other means as certain t o ensure actual notice is a minimum constitutional precondit ion to a proceeding which will adversely affect the liberty or property interests of [a] party . . . ."). 1

The majority seemingly acknowledges that service by mail

sent to the addressee's current address is constitu tionally adequate in almost all other contexts, but the majo rity holds that such notice may not be sufficient when s ent to a detainee or prisoner. Why? Why is it that mail se nt to, say, an inexpensive long-term-occupancy hotel is reasonably calculated under all the circumstances t o apprise an interested party of the pendency of a fo rfeiture

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1. On only one occasion has the Court held that not ice by mail sent to

the addressee's correct address was not constitutio nally adequate. In Covey v. Town of Somers, 351 U.S. 141 (1956), the C ourt held that due process was violated where notice of foreclosure fo r delinquent taxes was mailed to a person who was known to be incompetent, lived alone, and had no guardian, no relatives in the state, and no other person who was able to help her with her taxes. Id. at 146-47. Thu s, Somers hardly supports the majority's holding here.

21action but mail sent to a jail or prison may not be ? The

answer must be that there is a significantly higher probability that mail sent to such hotels will reac h the addressees than is the case with mail sent to a jai l or prison. But where is the evidence that this is so? The majority studiously avoids this point--for the very good

reason that no evidence whatsoever to this effect h as been adduced, by McGlory, the majority in this case, or any other judicial opinion of which I am aware. Such sy stemic problems may or may not exist; I don't know; and I doubt that my colleagues do either. But without such evid ence, there is no logical basis for the majority's decisi on.

It may well be that it would be advisable for those with legislative or rulemaking authority to require the government in forfeiture cases to provide better no tice than is required by the minimum standard imposed by due process. Congress has recently manifested concern a bout the fairness of federal forfeiture procedures and h as enacted the Civil Asset Forfeiture Reform Act of 20 00, Pub. L. No. 106-185, 114 Stat. 202 (2000), to remedy the problems that it found. This Act, however, does not require that notice of forfeiture be provided by some means better than the mail, but perhaps Congress should consider that question. Congress has the capability--which the fe deral courts plainly lack--to investigate whether notice of forfeiture sent by mail fails to reach the addresse e in a significant number of cases. (The mere fact that Mc Glory and a handful of other federal prisoners and detain ees have claimed that they did not receive notice sent by ma il to their facilities is hardly enough to show the exist ence of a serious problem.) Congress also has the ability to craft a rule that is specifically targeted to deal with any problem it finds to exist. It can specify the addressees to wh ich any such rule applies--e.g., all persons to whom notice is provided, only those in custody, only those in cust ody on federal charges, or only those in federal facilitie s. And it can provide that any new rule will not have retroactive effect. A court, in interpreting the Due Process Clause, lack s such flexibility."

I have three additional observations about the majo rity's decision. First, although the decision formally app lies only

22to notices of forfeiture sent by the federal govern ment to

persons in custody on federal charges, its logic ex tends to any forfeiture notices sent to any persons in custo dy. If notice of a federal forfeiture proceeding that is s ent by mail to a person in a state facility on federal charges is not reasonably calculated under all the circumstances t o apprise that person of the pendency of the federal forfeiture proceeding, notice of a state forfeiture proceeding that is sent by mail to another person held in the same fac ility on state charges cannot be reasonably calculated to in form that person of the pendency of the state forfeiture proceeding. Thus, the majority's decision has a bro ad logical sweep.

Second, the majority's standard regarding the adequ acy of mail handling procedures is left open-ended and will almost certainly lead to confusion and litigation. Under the majority's decision, notice by mail to a detainee o r prisoner satisfies due process only if the facility's mail h andling procedures at the time in question were reasonably

calculated to ensure that the notice reached the ad dressee. See Maj. Op. p. 14. What does this mean in practica l terms? Must there be a written policy? Must the add ressee sign a receipt? May delivery of the mail be entrust ed to other detainees or prisoners? Must the mail be hand ed to the addressee personally? One or more rounds of lit igation will almost certainly be required to answer these a nd related questions.

Third, although the majority has attempted to devis e a rule that will not impose an undue evidentiary burd en in cases in which forfeiture judgments are sought to b e vacated for lack of proper notice, the majority's d ecision may well prove quite difficult to administer. As pr eviously noted, the majority's mail handling standard is mur ky, and attempting to establish what procedures were follow ed at various points in the past at the numerous state an d federal facilities in which federal detainees and p risoners have been held may not be easy. And if the majority 's decision is extended to state detainees and prisone rs, as I think logic requires, the problem will be magnified

.

I would hold that due process was satisfied and lea ve it to the legislative or rulemaking processes to decid e whether

23additional notice requirements should be imposed in

forfeiture cases.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24