2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2015

Roy Langbord v. United States Department of th

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University

School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova University School of

Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Roy Langbord v. United States Department of th" (2015). 2015 Decisions. Paper 391.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/391
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 12-4574

_________

ROY LANGBORD; DAVID LANGBORD; JOAN 

LANGBORD

v.

UNITED STATES DEPARTMENT OF THE TREASURY; 

UNITED STATES BUREAU OF THE MINT; SECRETARY 

OF THE UNITED STATES DEPARTMENT OF THE 

TREASURY; ACTING GENERAL COUNSEL OF THE 

UNITED STATES DEPARTMENT OF THE TREASURY; 

DIRECTOR OF THE UNITED STATES MINT; CHIEF 

COUNSEL UNITED STATES MINT; DEPUTY 

DIRECTOR OF THE UNITED STATES MINT; JOHN DOE 

NOS. 1 TO 10 “JOHN DOE” BEING FICTIONAL FIRST 

AND LAST NAMES; UNITED STATES OF AMERICA

_________

UNITED STATES OF AMERICA

Third Party Plaintiff
2

v. 

TEN 1933 DOUBLE EAGLE GOLD PIECES; ROY 

LANGBORD; DAVID LANGBORD; JOAN LANGBORD

Third Party Defendants

ROY LANGBORD, DAVID LANGBORD, JOAN 

LANGBORD

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:06-cv-05315)

District Judge: Honorable Legrome D. Davis

Argued: November 19, 2014

Before: MCKEE, Chief Judge, RENDELL, SLOVITER, 

Circuit Judges.

(Opinion Filed: April 17, 2015) 

Barry H. Berke, Esq. [Argued]

Eric A. Tirschwell, Esq.

Kramer, Levin, Naftalis & Frankel

1177 Avenue of the Americas

New York, NY 10036
3

Kevin J. Kotch, Esq. 

Walter M. Phillips, Jr., Esq.

Obermayer, Rebmann, Maxwell & Hippel

1617 John F. Kennedy Boulevard

One Penn Center, 19th Floor

Philadelphia, PA 19103

 Attorneys for Appellants

Jacqueline C. Romero, Esq.

Nancy Rue, Esq.

Robert A. Zauzmer, Esq. [Argued]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

 Attorneys for Appellees
4

O P I N I O N

RENDELL, Circuit Judge:

Congress passed the Civil Asset Forfeiture Reform Act 

of 2000 (“CAFRA”), Pub. L. No. 106-185, 114 Stat. 202, as a 

“react[ion] to public outcry over the government’s toozealous pursuit of civil and criminal forfeiture” and as an 

“effort to deter government overreaching.” United States v. 

Khan, 497 F.3d 204, 208 (2d Cir. 2007).1 To that end, 

Congress crafted a statutory scheme that requires the 

Government, if it has seized property that someone else 

purports to own, to file a complaint for judicial forfeiture 

within 90 days of receipt of a claim (known as a “seized asset 

claim”) or else to return the property. 18 U.S.C. 

§ 983(a)(3)(A). CAFRA also imposes on the Government a 

heightened burden of proof to establish its right to the 

property in such proceedings. United States v. Sum of 

$185,336.07 U.S. Currency, 731 F.3d 189, 196 (2d Cir. 

2013). 

Here, the Government failed to follow CAFRA’s 

procedure, which requires it to file a complaint for judicial 

forfeiture within 90 days of the filing of a seized asset claim. 

Accordingly, we will reverse the portion of the District 

 

1 See also H.R. Rep. No. 106-192, at 10 (1999) (“Civil asset 

forfeiture does not just impact civil liberties and property 

rights. It can work at total cross purposes with the few 

professed public policy goals of the federal government.”). 
5

Court’s July 29, 2009 order denying the appellants’ crossmotion for partial summary judgment concerning the 

applicability of CAFRA. We will vacate all orders at issue on 

appeal that postdate the July 29, 2009 order, including the 

jury verdict and the District Court’s order entering judgment. 

Further, we will remand for the District Court and instruct it 

to grant the appellants the relief required by this Opinion.

I. Background

The ownership of the property in question and how the 

appellants obtained possession of it are hotly disputed, but the 

facts relevant to the disposition of this appeal are not. The 

property consists of ten coins that were minted in 1933. Each 

coin is a double eagle, which is a $20 gold coin. The 1933 

double eagle is alleged to be “the most valuable ounce of gold 

in the world” and “America’s most beautiful coin.” (J.A. 

609.) There were 445,500 double eagles minted in 1933;

however, those coins were generally not released into 

circulation. Instead, in an effort to halt the banking crisis 

during the Great Depression, President Franklin D. Roosevelt 

issued an executive order in 1933 removing gold coins from 

circulation. See Exec. Order No. 6102 (Apr. 5, 1933).2 The 

U.S. Mint (“Mint”) was forbidden from releasing any more 

gold coins, and, over the next few years, began melting the 

coins into gold bricks. Nonetheless, a number of 1933 double 

 

2 Executive Order 6102 allowed people to continue to possess 

“[g]old coin and gold certificates in an amount not exceeding 

in the aggregate $100 belonging to any one person,” as well 

as “gold coins having a recognized special value to collectors 

of rare and unusual coins.” Exec. Order No. 6102, at § 2(b)

(Apr. 5, 1933).
6

eagles left the Mint; some were unlawfully smuggled out and 

at least two left the Mint lawfully. 

One 1933 double eagle was sold to King Farouk of 

Egypt, a coin collector, in 1944. This coin had been 

unlawfully smuggled out of the Mint, but the Government 

“had improvidently issued an export license,” which muddied 

the issue of who rightfully possessed the coin. (J.A. 28.) In 

1995, an English coin dealer, Stephen Fenton, purchased that 

coin for approximately $200,000. Fenton then contacted a 

coin dealer in the United States, who subsequently became a 

confidential informant for the U.S. Secret Service (“Secret 

Service”). The confidential informant convinced Fenton to 

bring the coin to the United States in 1996. The Secret 

Service seized the coin from Fenton in New York City, and 

litigation ensued. The Government ultimately settled with 

Fenton, agreeing to sell the coin at auction and divide the 

proceeds equally. The Fenton coin was auctioned in 2002 for 

nearly $7.6 million. 

The appellants in this case are Joan Langbord and her 

sons, Roy and David Langbord (collectively, the 

“Langbords”). Shortly after the Fenton coin sold at auction, 

Joan Langbord allegedly discovered ten 1933 double eagles 

(the “Double Eagles”) in a safe deposit box originally 

belonging to her deceased father, Israel Switt. Several 

decades earlier, the Secret Service suspected that Switt, an 

antique dealer in Philadelphia, and George McCann, a former 

Philadelphia Mint cashier, unlawfully smuggled 1933 double 

eagles out of the Philadelphia Mint; however, Switt’s 

involvement in this scheme was never proven.
7

In 2004, the Langbords’ counsel informed the Mint 

about the Double Eagles that the Langbords had discovered. 

The Langbords sought an agreement similar to the Fenton 

coin compromise. The Mint’s attorneys stated that they 

“would be willing to discuss the matter” and that they were 

“amenable to a discussion” on that topic. (J.A. 142.) The 

Langbords, explicitly reserving their rights to the Double 

Eagles, made the coins available to the Government for the 

sole purpose of authentication. (J.A. 806.) Shortly thereafter, 

the agencies involved—i.e., the U.S. Attorney’s Office for the 

District of Columbia, the Secret Service, the U.S. Department 

of the Treasury (“Treasury”), and the Mint—met to discuss 

how to proceed. A memorandum summarizing the meeting 

states that “[a]ll the agencies involved, with the exception of 

the US Mint, are in favor of pursuing forfeiture.” (J.A. 818.) 

Only the Mint “assert[ed] that the coins are government 

property and should be returned [to the Mint] without the 

need for forfeiture.” (Id.)

The Double Eagles were authenticated, and the 

Treasury sided with the Mint, deciding not to institute a 

judicial civil forfeiture proceeding. When the Langbords’ 

counsel requested return of the Double Eagles, the Mint’s 

counsel wrote to him, stating, “[t]he United States Mint has 

no intention of seeking forfeiture of these ten Double Eagles 

because they already are, and always have been, property 

belonging to the United States; this makes forfeiture 

proceedings entirely unnecessary.” (J.A. 823.) In response, 

the Langbords’ counsel submitted a “seized asset claim” on 

September 9, 2005, demanding the return of the Double 

Eagles or the institution of a judicial civil forfeiture 

proceeding. (J.A. 828-35.) As described below, a seized 

asset claim starts the process whereby the Government must 
8

either institute a judicial civil forfeiture proceeding or return 

the seized property. Nevertheless, in response to the seized 

asset claim, the Mint responded that it was “returning these 

documents . . . without action,” again stating that “[t]here is 

simply no basis for the Government to initiate forfeiture 

proceedings on property to which the United States holds 

title.”3 (J.A. 837.) 

In the face of the Government’s refusal, the Langbords 

instituted this civil action in December 2006. The Langbords 

asserted two claims for violations of the Administrative 

Procedure Act (“APA”), a claim for violation of CAFRA, a 

Fifth Amendment claim, a Fourth Amendment claim, a claim 

for mandamus, and two claims under the Federal Tort Claims 

Act (“FTCA”) for replevin and conversion.

The parties filed cross-motions for summary judgment. 

On July 29, 2009, the District Court ruled in favor of the 

Government on the CAFRA claim, holding that CAFRA’s 

 

3 The Mint’s terse letter also denied that the Government had 

seized the Double Eagles, an assertion which, as described 

below, the District Court correctly rejected. (See J.A. 837 

(“As you and your client are aware, there has been no seizure 

of any property that is owned by, or that could be claimed to 

be owned by, your client.”); J.A. 838 (“In short, there has 

been no seizure of property; your client voluntarily 

surrendered to the United States property belonging to the 

United States.”).) This denial starkly contrasts with a 

contemporaneous internal Government memorandum that 

conceded that a seizure had occurred. (See J.A. 818 (“On 

September 22, 2004, the [Secret Service] seized ten coins 

referred to as ‘1933 Gold Double Eagle Coins’ . . . .”).)
9

90-day deadline in § 983(a)(3) did not apply because it 

applies only to nonjudicial civil forfeitures and no such 

forfeiture had occurred here. It reasoned that: (1) a “nonjudicial civil forfeiture ‘is commenced when the Government 

sends notice of the forfeiture proceeding to potential 

claimants’”; (2) “the Government never sent [the Langbords] 

such a notice”; and thus (3) “the Government never began an 

administrative forfeiture proceeding4and therefore the 

requirements of § 983(a) [namely, the 90-day deadline] do 

not apply.” (J.A. 146 (quoting Stefan D. Cassella, Asset 

Forfeiture Law in the United States 143 (1st ed. 2007) 

[hereinafter Cassella First Edition]).) The District Court did 

find, however, that the Government had violated the 

Langbords’ Fourth Amendment right against unreasonable 

seizures and their Fifth Amendment due process right by 

taking the Double Eagles contrary to the parties’ agreement. 

It held that the remedy for these constitutional violations was 

for the Government either to return the coins or to institute a 

judicial civil forfeiture proceeding, which is the same result 

that § 983(a)(3) demands, but without the 90-day deadline. 

The District Court granted the Government’s summary 

judgment motion on the APA claims and postponed ruling on 

the FTCA claims.

As ordered by the District Court, the Government 

sought leave to file a judicial civil forfeiture complaint on 

September 28, 2009. The complaint alleged that the Double 

Eagles were “embezzled, stolen, purloined, knowingly 

converted to private use, or taken from the United States Mint 

in Philadelphia without authority, and [were] concealed and 

 

4 As used here, “administrative forfeiture” is synonymous 

with “nonjudicial civil forfeiture.”
10

retained with the intent to convert [them] to private use or 

gain” in violation of 18 U.S.C. § 641. (J.A. 1178.) The 

Government’s proposed complaint also included a declaratory 

judgment claim that “the disputed Double Eagles were not 

lawfully removed from the United States Mint and that 

accordingly, as a matter of law, they remain property of the 

United States.” (J.A. 1180.) 

Over the Langbords’ objection, the District Court 

granted leave to file portions of the complaint, including the 

forfeiture claim and the declaratory judgment claim. It also 

ruled that the Langbords had a right to a jury trial on the 

forfeiture claim but not on the declaratory judgment claim. A 

jury trial was held on the forfeiture claim, and the jury 

returned a verdict for the Government on July 20, 2011, 

finding that the Double Eagles had been stolen from the Mint. 

As a result of the jury verdict, the District Court entered 

judgment for the Government on its forfeiture claim, as well 

as on the related declaratory judgment claim.

On appeal, the Langbords argue that the District Court 

erred by granting summary judgment for the Government on 

the issue of CAFRA’s 90-day statutory deadline for filing a 

judicial civil forfeiture action. They also argue that the 

District Court erred by allowing the Government’s 

declaratory judgment claim to proceed and by denying the 

Langbords’ request to have the declaratory judgment claim 

tried by a jury. In addition, the Langbords appeal the District 

Court’s admission of certain evidence at trial,5argue that the 

 

5 The Langbords persuasively argue that the hearsay-withinhearsay rule, Fed. R. Evid. 805, does apply to ancient 

documents admitted pursuant to Rule 803(16), contrary to the 
11

District Court improperly instructed the jury on criminal 

intent, and urge that the Government cannot seize property as 

a result of an 18 U.S.C. § 641 violation—i.e., stolen 

government property—unless the property was stolen or 

embezzled after 1948 when § 641 was enacted.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the 

Langbords’ claims pursuant to 28 U.S.C. §§ 1331, 

1346(b)(1), 1356, and 1361 and 5 U.S.C. § 702; it had 

jurisdiction over the Government’s claims pursuant to 28 

U.S.C. §§ 1345 and 1355(a). We have jurisdiction pursuant 

to 28 U.S.C. § 1291.

We “employ a plenary standard in reviewing orders 

entered on motions for summary judgment, applying the same 

standard as the district court.” Blunt v. Lower Merion Sch. 

Dist., 767 F.3d 247, 265 (3d Cir. 2014). We review questions 

of law de novo. United States v. Mallory, 765 F.3d 373, 381-

82 (3d Cir. 2014).

 

District Court’s holding. Although we do not reach the issue, 

the District Court appears to have been mistaken. See United 

States v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998) (“These 

documents are more than 20 years old and they were properly 

authenticated, so they are exceptions to the hearsay rule 

admissible under Rule 803(16) of the Federal Rules of 

Evidence. However, this admissibility exception applies only 

to the document itself. If the document contains more than 

one level of hearsay, an appropriate exception must be found 

for each level.”).
12

III. Discussion

A. The CAFRA Violation

The Government was required either to file a judicial 

civil forfeiture complaint or to return the Double Eagles 

within 90 days of receipt of the Langbords’ seized asset claim 

under 18 U.S.C. § 983(a)(3)(A). Because the Government 

failed to do so, the Langbords are entitled to the return of the 

Double Eagles.

The Government’s position as to why it did not need to 

fulfill its obligation under § 983(a)(3)(A) has morphed over 

time. When the Government initially returned the Langbords’ 

seized asset claim without action, it claimed that it did not 

need to abide by CAFRA because the property was stolen 

government property. Now, the Government’s principal 

argument is that it did not need to abide by CAFRA because 

it never sent a notice to the Langbords that it was pursuing 

forfeiture, thereby relieving it of its obligation to institute a 

judicial civil forfeiture proceeding. Neither of these 

arguments nor any of the Government’s remaining arguments 

have merit.

The Government’s original argument that stolen 

government property falls outside the protections of CAFRA 

is incorrect for a simple reason: Congress has specifically 

enumerated theft or embezzlement of government property as 

one of the crimes to which CAFRA applies. Congress has 

provided that “[t]he following property is subject to forfeiture

to the United States: . . . . [a]ny property, real or personal, 

which constitutes or is derived from proceeds traceable to . . . 

any offense constituting ‘specified unlawful activity’ (as 
13

defined in section 1956(c)(7) of this title).” 18 U.S.C. 

§ 981(a)(1)(C) (emphasis added). “[S]pecified unlawful 

activity” includes “an offense under . . . section 641 (relating 

to public money, property, or records).” Id. § 1956(c)(7)(D). 

Section 641, the very statute alleged in the Government’s 

complaint to have been violated, criminalizes the theft or 

embezzlement “of any record, voucher, money, or thing of 

value of the United States or of any department or agency 

thereof.” Id. § 641 (emphasis added). The Government 

claims that the Double Eagles are government property—i.e.,

things of value of the United States. (J.A. 1178.) Clearly, 

CAFRA applies when the underlying property is stolen 

government property.

The Government’s original argument also appears to 

have been based on the notion that the Langbords voluntarily 

surrendered the Double Eagles to the Government. However, 

on summary judgment, the District Court concluded that the 

Government’s seizure of the coins was unconstitutional, and 

the Government has not cross-appealed this ruling.6 The 

Langbords turned the Double Eagles over to the Government 

for the sole purpose of authenticating them, and they 

“specifically reserve[d] all rights and remedies with respect to 

the Coins.” (J.A. 806.) As the District Court found, the 

Langbords’ “letter communicated that [they] did not intend 

the transfer to be an unconditional, permanent surrender,” and 

“once [they] became aware that the Government intended to 

 

6 Regardless of whether the Government could have taken an 

interlocutory appeal of the District Court’s July 29, 2009 

summary judgment order, the Government could have crossappealed at the conclusion of the case, after the jury trial. It 

did not.
14

keep the coins permanently, they promptly requested their 

return.” (J.A. 150.) 

The Government’s seizure of property—even under a 

theory that the property ultimately belongs to the 

Government—can violate the Fourth and Fifth Amendment. 

See Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992) (“A 

‘seizure’ of property, we have explained, occurs when ‘there 

is some meaningful interference with an individual’s 

possessory interests in that property.’” (quoting United States 

v. Jacobsen, 466 U.S. 109, 113 (1984)); see also Lesher v. 

Reed, 12 F.3d 148, 150 (8th Cir. 1994) (“The Leshers’ 

constitutional right against unreasonable seizures is not 

vitiated merely because the [government] believed the dog 

belonged to the [Little Rock Police Department].”). Here, the 

Langbords had a possessory right that they preserved in 

writing when they turned the Double Eagles over for 

authentication. Even if the Double Eagles ultimately were 

stolen government property, the Government’s seizure of 

them was unconstitutional, as the District Court determined.

With this original line of argument rejected, we turn to 

the Government’s main assertion on appeal—namely, that all 

it needs to do to avoid CAFRA’s protections is to refrain from 

sending notice that it is commencing a forfeiture proceeding. 

As a corollary, the Government argues that it can avoid 

CAFRA by unequivocally stating in its communication with 

the people whose property was seized that it is not seeking 

forfeiture. If the Government seizes property claimed by 

someone else—whether it be money, a car, or even a house—

the Government argues it can avoid the protections Congress 

sought to put in place simply by saying, “we are not seeking 

forfeiture.” 
15

The Langbords are correct in urging that we reject 

these arguments. The Government was required either to 

return their property or to institute a judicial civil forfeiture 

proceeding within 90 days of the Langbords’ submission of a 

seized asset claim. See 18 U.S.C. § 983(a)(3)(A) (“Not later 

than 90 days after a claim has been filed, the Government 

shall file a complaint for forfeiture . . . or return the property 

. . . .”). This is what CAFRA envisions: the Government 

cannot unilaterally ignore a seized asset claim. Instead, the 

Government must either return the seized property or file a 

complaint in court to seek forfeiture of the seized property 

within 90 days of receipt of the seized asset claim. Our 

dissenting colleague takes issue with this proposition, urging 

that, although the Government was required to have followed 

the 90-day deadline in § 983(a)(3), its failure to do so does 

not require the Government to return the Double Eagles to the 

Langbords. This is a novel argument, never posited by the 

Government, and, as we discuss below, not supported by any 

relevant case authority.7 Moreover, it rewrites the statute. 

Section 983(a) contains three independent subparts: in 

(a)(1) it imposes a 60-day timeline for the Government to 

send written notice of forfeiture in certain cases; in (a)(2) it 

creates a mechanism by which a person claiming seized 

 

7 We note, further, that of the approximately thirty cases cited 

in Parts I and II of the dissent, only one was ever referred to 

in any of the briefing—cited in a footnote in the 

Government’s Brief for an unrelated issue. As we discuss 

below, the jurisprudence the dissent cites is off-point, dealing 

with a different provision of CAFRA, § 983(a)(1), and even 

entirely different statutes. See infra note 19. 
16

property can file a seized asset claim, whether or not the 

Government has sent or is required to send notice; and in 

(a)(3) it imposes a 90-day timeline, after a seized asset claim 

has been filed, for the Government to respond either by 

returning the property or by filing a complaint in court for 

judicial forfeiture. 

The District Court incorrectly reasoned that the seized 

asset claim provision, § 983(a)(2), and the 90-day provision, 

§ 983(a)(3), are activated only if written notice is sent under 

§ 983(a)(1). This is wrong. The District Court combined 

§ 983(a)(1) with (a)(2) and (a)(3) and held that, in any 

forfeiture situation in which the Government does not send 

notice under § 983(a)(1), no one is able to file a seized asset 

claim pursuant to § 983(a)(2). But a careful reading of the 

statutory provisions demonstrates that this is not the case:

(1)(A)(i) Except as provided in clauses (ii) 

through (v), in any nonjudicial civil forfeiture 

proceeding under a civil forfeiture statute, with 

respect to which the Government is required to 

send written notice to interested parties, such 

notice shall be sent in a manner to achieve 

proper notice as soon as practicable, and in no 

case more than 60 days after the date of the 

seizure. . . .

(2)(A) Any person claiming property seized in a 

nonjudicial civil forfeiture proceeding under a 

civil forfeiture statute may file a claim with the 

appropriate official after the seizure. . . .

(3)(A) Not later than 90 days after a claim has 

been filed, the Government shall file a 
17

complaint for forfeiture . . . or return the 

property pending the filing of a complaint . . . .

(3)(B) If the Government does not—(i) file a 

complaint for forfeiture or return the property, 

in accordance with subparagraph [(3)](A) . . . 

the Government shall promptly release the 

property pursuant to regulations promulgated by 

the Attorney General, and may not take any 

further action to effect the civil forfeiture of 

such property in connection with the underlying 

offense.

8

18 U.S.C. § 983(a) (emphasis added). 

Section 983(a)(1)(A) provides for the manner and 

timing of notice that the Government must use in those 

“nonjudicial civil forfeiture proceeding[s] . . . with respect to 

which the Government is required to send written notice.” Id. 

§ 983(a)(1)(A)(i) (emphasis added). This provision 

recognizes that another law—separate from CAFRA—

provides that notice must be sent in some, but not all, 

 

8 The dissent points to the phrase, “return the property 

pending the filing of a complaint,” in § 983(a)(3)(A), as 

creating ambiguity as to the Government’s obligations. (See 

Diss. Op. at 3.) However, there is no question that the 

Government did not return the Double Eagles pending the 

filing of a complaint. Therefore, the Government did not 

comply with § 983(a)(3)(A), which then requires that “the 

Government shall promptly release the property . . . and may 

not take any further action to effect the civil forfeiture of such 

property in connection with the underlying offense.” 18 

U.S.C. § 983(a)(3)(B).
18

nonjudicial civil forfeiture proceedings. See 19 U.S.C. 

§ 1607(a).9 Section 1607(a) does not speak to the manner or 

timing of the notice; that is what § 983(a)(1) does. The 

Government errs in urging that, when notice of forfeiture is 

either not required or not given within 60 days of a seizure 

under § 983(a)(1), that insulates the Government from its 

obligation under § 983(a)(3) to act within 90 days of 

receiving a seized asset claim. Instead, § 983(a)(2) and (a)(3) 

act independently from § 983(a)(1): whether notice has been 

filed has nothing to do with the Government’s duty to 

respond to a seized asset claim. Therefore, § 983(a)(1) is 

irrelevant to the analysis that we must conduct under 

§ 983(a)(2) and (a)(3).

The text of § 983(a)(3) provides that, “[n]ot later than 

90 days after a claim has been filed, the Government shall 

file a complaint for forfeiture . . . or return the property.” 18 

 

9 Notice is required in the following situations:

(1) the value of such seized vessel, vehicle, 

aircraft, merchandise, or baggage does not 

exceed $ 500,000;

(2) such seized merchandise is merchandise the 

importation of which is prohibited;

(3) such seized vessel, vehicle, or aircraft was 

used to import, export, transport, or store 

any controlled substance or listed chemical; 

or

(4) such seized merchandise is any monetary 

instrument within the meaning of section 

5312(a)(3) of title 31 of the United States 

Code; . . . .

19 U.S.C. § 1607(a).
19

U.S.C. § 983(a)(3)(A) (emphasis added). And the 

requirements for filing a claim are laid out in § 983(a)(2), not 

§ 983(a)(1). “Any person claiming property seized in a 

nonjudicial civil forfeiture proceeding under a civil forfeiture 

statute may file a claim with the appropriate official after the 

seizure.” Id. § 983(a)(2)(A) (emphasis added). Here, the 

Government’s seizure of the property is rightfully considered 

a nonjudicial civil forfeiture proceeding. See Stefan D. 

Cassella, Asset Forfeiture Law in the United States 10 (2d ed. 

2013) [hereinafter Cassella Second Edition] (“Basically, an 

administrative forfeiture begins when a federal law 

enforcement agency with statutory authority in a given area 

(e.g., DEA in a drug case, FBI in a fraud case, ATF in a 

firearms case) seizes property discovered in the course of an 

investigation.”).10 In other words, it is when the agency 

“seizes property” that the “administrative forfeiture begins.” 

Id. Because a nonjudicial civil forfeiture proceeding occurred 

when the Government seized the coins, the Langbords had the 

right to submit a seized asset claim under § 983(a)(2), and, 

when they did, they triggered the Government’s obligation 

under § 983(a)(3) to bring a judicial civil forfeiture 

proceeding or to return the property within 90 days.

The Government’s insistence that “[t]he statute says 

that an administrative forfeiture proceeding is initiated by the 

government providing notice of the seizure” is baffling. (Oral 

 

10 While most forfeitures result from the Government’s 

seizure of property derived from illegal activity, CAFRA 

covers stolen government property in the hands of third 

parties, as was explained above. See 18 U.S.C. 

§ 981(a)(1)(C) (cross-referencing 18 U.S.C. § 1956(c)(7), 

which cross-references 18 U.S.C. § 641).
20

Arg. Tr. 52:7-9, Nov. 19, 2014.) But the District Court 

agreed. Quoting from a section of a treatise that does not 

discuss the applicability of § 983(a)(3), the District Court 

held that “[a] non-judicial civil forfeiture proceeding ‘is 

commenced when the Government sends notice of the 

forfeiture proceeding to potential claimants.’” (J.A. 146 

(quoting Cassella First Edition, supra, at 143).) However, as 

the language of § 983(a)(1)(A)(i) makes clear, only in some

nonjudicial civil forfeiture proceedings under a civil forfeiture 

statute11 is the Government required to send written notice. 

Otherwise, the subsection would not need to include the 

phrase, “in any nonjudicial civil forfeiture proceeding under a 

civil forfeiture statute, with respect to which the Government 

is required to send written notice to interested parties.” 18 

U.S.C. § 983(a)(1)(A)(i) (emphasis added). It cannot be that 

a case where no notice of forfeiture is required is nonetheless 

beholden to the Government’s notice as starting the 

administrative process. The frivolity of the Government’s 

position is demonstrated by the fact that it would afford the 

Government total discretion to avoid CAFRA altogether by 

unilaterally deciding not to notify the putative owner of the 

seizure.

Further proof of why the Government is incorrect 

appears in § 983(e)(1), which provides that “[a]ny person 

 

11 There is no dispute that the Government acted “under a 

civil forfeiture statute.” The definition of “civil forfeiture 

statute” is “any provision of Federal law providing for the 

forfeiture of property other than as a sentence imposed upon 

conviction of a criminal offense.” 18 U.S.C. § 983(i)(1). 

There are five enumerated exceptions, none of which applies 

here. See id. § 983(i)(2).
21

entitled to written notice in any nonjudicial civil forfeiture 

proceeding under a civil forfeiture statute who does not 

receive such notice may file a motion to set aside a 

declaration of forfeiture with respect to that person’s interest 

in the property.” Id. § 983(e)(1) (emphasis added). Section 

983(e)(1) is triggered only when there is a “nonjudicial civil 

forfeiture proceeding” in which the Government has not sent 

notice of its intent to pursue forfeiture. But if such a 

proceeding can be commenced only when the Government 

has sent notice of its intent, then the statute makes no sense. 

In other words, if a nonjudicial civil forfeiture proceeding 

commences only when the Government sends notice that it is 

instituting such a proceeding, then § 983(e)(1), which 

provides a remedy in any nonjudicial civil forfeiture 

proceeding in which the Government was required but failed 

to give notice of its intent to pursue forfeiture, would be 

nonsensical. Therefore, it cannot be the case that a 

nonjudicial civil forfeiture proceeding is initiated only when 

the Government sends notice that it intends to commence 

such a proceeding.12 Section 983(a)(1) does not initiate a 

 

12 To assert that a nonjudicial civil forfeiture proceeding 

occurs only when the Government sends notice, the 

Government relies upon cases interpreting the 60-day notice 

requirement of § 983(a)(1), which do not address the 

applicability of the 90-day requirement in § 983(a)(3). See, 

e.g., United States v. Approximately $1,305,105 in Assorted 

Silver Bars & Gold & Silver Coins, No. 12-C-7505, 2013 WL 

453195, at *2-3 (N.D. Ill. Feb. 6, 2013), rev’d, No. 13-1452 

(7th Cir. July 22, 2013); United States v. Assets Described in 

“Attachment A”, No. 6:09-cv-1852, 2010 WL 1893327, at *6 

(M.D. Fla. May 11, 2010); United States v. $147,900, No. 

1:06-cv-197, 2009 WL 903356, at *4 (M.D.N.C. Mar. 31, 
22

nonjudicial civil forfeiture proceeding; rather, it provides the 

manner of giving notice when the provisions requiring notice 

apply. 

Instead, a “nonjudicial civil forfeiture proceeding” 

commences when the Government has seized property. 

Cassella Second Edition, supra, at 10. When the Government 

has seized property, then the person from whom the property 

was seized has the right to file a seized asset claim pursuant 

to § 983(a)(2)(A), thereby triggering the 90-day deadline in 

§ 983(a)(3)(A). If the Government has not seized property, 

then it has no obligation to respond to a seized asset claim. 

Thus, the horrors described by the Government at oral 

argument—e.g., pro se prisoners filing seized asset claims for 

jailhouse televisions—is of no concern here. Because no 

seizure occurred in those situations, the Government would 

not have to file a judicial forfeiture action, even if someone 

files a seized asset claim. It is only when a seizure occurs 

that there is a “nonjudicial civil forfeiture proceeding” and 

thus the Government must respond.13 Here, the Government 

 

2009), vacated in part, 450 F. App’x 261 (4th Cir. 2011); 

DWB Holding Co. v. United States, 593 F. Supp. 2d 1271, 

1272 (M.D. Fla. 2009).

13 (See Oral Arg. Tr. 59:4-15 (“The other problem with this 

notion that somebody can create their own forfeiture 

proceeding by filing a seized asset claim is we would be 

bombarded by litigation. . . . All the prisoners who say, [y]ou 

know, that TV set on the wall is mine, I declare it. Here’s a 

seized asset claim. You have 90 days to file a judicial

forfeiture against me, when the government never initiated 

any forfeiture at all because the TV set [was never theirs]—

we can go on and on with examples.”).) This example is off-
23

unquestionably committed a seizure (and an unconstitutional 

one at that), so it was required to respond to the Langbords’ 

seized asset claim, either by filing a judicial complaint within 

90 days or by returning the property. See 18 U.S.C. 

§ 983(a)(3)(A). Instead, the Government forced the 

Langbords to commence this decade-long ordeal for the 

return of the Double Eagles.

The Government’s remaining arguments as to why the 

90-day deadline should not apply also lack merit.14 These 

 

topic because the Government did not seize the TV set, and, 

therefore, no nonjudicial civil forfeiture proceeding has 

occurred. Accordingly, the Government would have no 

obligation to respond to the seized asset claim. 

14 The Government has not argued that the Langbords waived 

their right to CAFRA’s 90-day deadline by consenting to the 

forfeiture proceeding, which the District Court ordered as a 

remedy for the Government’s unconstitutional seizure of the 

Double Eagles. Accordingly, the Government has waived 

any potential waiver argument. See Freeman v. Pittsburgh 

Glass Works, LLC, 709 F.3d 240, 250 (3d Cir. 2013) (“[A] 

party can waive a waiver argument by not making the 

argument below or in its briefs.”). Regardless, the Langbords 

have clearly and repeatedly raised the argument that the 

Government violated the 90-day deadline in § 983(a)(3). 

(See, e.g., J.A. 628, 775-78.) We note that this is why there 

was no “agreement of the parties” as to the Government’s late 

filing of the forfeiture complaint. See 18 U.S.C. 

§ 983(a)(3)(A) (“Not later than 90 days after a claim has been 

filed, the Government shall file a complaint for forfeiture . . . , 

except that a court in the district in which the complaint will 
24

arguments are: (1) the value of the Double Eagles prevented 

them from being subject to CAFRA; (2) the Mint was not 

authorized to bring a forfeiture action; and (3) 

§ 983(a)(3)(A)’s “good cause” exception applies.

First, the Government’s argument that the Double 

Eagles were not subject to forfeiture because their value 

exceeded $500,000 is unavailing. This argument relies on 19 

U.S.C. § 1607(a), which states only that “the appropriate 

customs officer shall cause a notice of the seizure of such 

articles and the intention to forfeit . . . to be published for at 

least three successive weeks in such manner as the Secretary 

of the Treasury may direct.” 19 U.S.C. § 1607(a). One of the 

instances in which notice is not required is when the value of 

the property exceeds $500,000. Id. § 1607(a)(1). Because 

the Government assumes that notice is required to commence 

a forfeiture proceeding and because § 1607(a) demonstrates 

that no notice was required in this case, as the Double Eagles’ 

value allegedly exceeds $500,000, the Government argues 

that no forfeiture has occurred here. This argument fails. 

Section 1607(a) is relevant to determining whether the 

Government was obligated to provide notice of forfeiture 

within 60 days pursuant to 18 U.S.C. § 983(a)(1), but it does 

not relieve the Government of its 90-day deadline in 

§ 983(a)(3). Notice is not a prerequisite for persons to file a 

seized asset claim and trigger the 90-day deadline in 

§ 983(a)(3). 

Second, the Government’s argument that its conduct 

did not amount to a nonjudicial civil forfeiture since the Mint 

 

be filed may extend the period for filing . . . upon agreement 

of the parties.”).
25

was not authorized to conduct a forfeiture under 31 U.S.C. 

§ 9703 fails because the Mint is an entity within the Treasury 

and was not the only agency involved here. Section 

9703(o)(1) provides a definition for “Department of the 

Treasury law enforcement organization,” a definition which 

includes the Secret Service but excludes the Mint. 31 U.S.C. 

§ 9703(o)(1).15 A separate subsection provides that “property 

and currency shall be deemed to be forfeited pursuant to a law 

enforced or administered by a Department of the Treasury 

law enforcement organization if it is forfeited pursuant to—

. . . (B) a civil administrative forfeiture proceeding conducted 

by a Department of the Treasury law enforcement 

organization.” Id. § 9703(m)(2)(B). But the Secret Service 

is the agency that “seized” the Double Eagles on September 

22, 2004 and that continued to have custody of the coins until 

months later. (J.A. 818.) The Secret Service is authorized to 

conduct a forfeiture pursuant to § 9703. That the Treasury 

ordered the Secret Service to give the Double Eagles to the 

Mint (J.A. 821) does not insulate the Government from 

CAFRA. Section 9703 sought to limit various agencies’ 

ability to conduct seizures; it does not give agencies that are 

not authorized to conduct seizures a carte blanche ability to 

avoid CAFRA.

Third, § 983(a)(3)(A)’s “good cause” exception does 

not excuse the Government’s failings here. Pursuant to the 

statute, “[n]ot later than 90 days after a claim has been filed, 

the Government shall file a complaint for forfeiture . . . , 

except that a court in the district in which the complaint will 

be filed may extend the period for filing a complaint for good 

 

15 We note an inconsistency in the U.S. Code: there are two 

separate statutes both identified as 31 U.S.C. § 9703.
26

cause shown or upon agreement of the parties.” 18 U.S.C. 

§ 983(a)(3)(A) (emphasis added). We cannot help but read 

this language (“shall file . . . except . . . may extend”) to mean 

that the good cause exception allows the Government to seek 

an extension of time only before the 90-day period expires. 

See United States v. Funds from Fifth Third Bank Account, 

No. 13-11728, 2013 WL 5914101, at *9 (E.D. Mich. Nov. 4, 

2013) (“Given the narrow language used [in § 983(a)(3)(A)], 

this Court concludes that the Government has to seek the 

extension before the limitations period passes and that it 

cannot seek a ‘retroactive extension.’”); see also United 

States v. One 1991 Ford Mustang LX, 909 F. Supp. 831, 834 

(D. Colo. 1996); United States v. 1986 Ford Bronco, 782 F. 

Supp. 1543, 1546 (S.D. Fla. 1992); United States v. One 

White 1987 Tempest Sport Boat, 726 F. Supp. 7, 9 (D. Mass. 

1989). The period cannot be extended if it has already 

passed.16 

 

16 Congress included the “good cause” exception to “make it 

unnecessary for the government, as it often must under 

current law, to file a complaint and then immediately request 

a stay under Rule 26, Federal Rules of Civil Procedure, or 

under other statutory authority, to avoid jeopardizing a 

criminal case.” H.R. Rep. No. 105-358(I), at 45 (1997) 

(footnote omitted). Congress explained that “the court should 

grant an extension of time where the filing of the complaint, 

which is required to recite the factual basis in some detail, 

would reveal facts concerning a pending investigation, 

undercover operation, or court-authorized electronic 

surveillance, or would jeopardize government witnesses.” Id. 

at 44 (footnote omitted). Furthermore, “the court could grant 

the extension to allow the government to include the 

forfeiture in a criminal indictment, and thus avoid the 
27

Even if the statute did permit retroactive extensions, 

the Government would not be entitled to an extension for two 

reasons. First, the Government’s delay was not minor; the 

Government failed to file a complaint until September 28, 

2009—four years and nineteen days after the Langbords filed 

their seized asset claim—and only did so under court order. 

See United States v. $39,480.00 in U.S. Currency, 190 F. 

Supp. 2d 929, 932 & n.9 (W.D. Tex. 2002) (permitting a 

retroactive extension when the government was one day late). 

Second, according to the Government’s own documents, after 

the Secret Service seized the Double Eagles, “[a]ll the 

agencies involved, with the exception of the US Mint, [were] 

in favor of pursuing forfeiture.” (J.A. 818.) Thus, the 

Government knew that it was obligated to bring a judicial 

civil forfeiture proceeding or to return the property, but 

refused to do so.17 As a result, the Government cannot show 

good cause.18

 

necessity of initiating parallel civil and criminal forfeitures.” 

Id. Congress’s reasons for including the good cause 

exception are certainly not applicable here.

17 We note that an unjustified mistake of law can hardly be 

considered “good cause.” See Green v. Humphrey Elevator 

& Truck Co., 816 F.2d 877, 884 (3d Cir. 1987) (“We need not 

decide here, the parameters of the ‘good cause’ exception to 

Rule 4(j) for it is clear that an unjustified misunderstanding of 

the requirements of the law will not suffice.”).

18 The Government incorrectly states that the District Court 

found good cause here. The District Court stated no more 

than that “the Government might still have had an opportunity 

to file a judicial forfeiture action” under the good cause 

exception. (J.A. 148 n.3 (emphasis added).) However, it did 

not find good cause, nor could it have.
28

Accordingly, a nonjudicial civil forfeiture proceeding 

occurred here, and the Government missed the 90-day 

deadline under § 983(a)(3). On September 9, 2005, when the 

Langbords submitted their seized asset claim, the 90-day 

period in § 983(a)(3) commenced. See 18 U.S.C. 

§ 983(a)(3)(A). The Government failed to return the 

Langbords’ property or institute a judicial civil forfeiture 

proceeding within 90 days. Having failed to do so, it must 

return the Double Eagles to the Langbords.19 

 

19 While the dissent refers to a myriad of cases purportedly 

contradicting the reasoning and the result we embrace, those 

cases are easily distinguishable, and the impact of CAFRA’s 

specific language in § 983(a)(3) could not be clearer. The 

dissent’s argument—i.e., that the Government should have 

followed § 983(a)(3) but that its failure does not lead to the 

return of the Langbords’ property—is a novel position that 

was not urged by the Government. Moreover, the statutes 

that are the subject of the cases cited in the dissent have little 

in common with CAFRA. See, e.g., Dolan v. United States, 

560 U.S. 605 (2010) (Mandatory Restitution Act); Shenango 

Inc. v. Apfel, 307 F.3d 174 (3d Cir. 2002) (Coal Act). It relies 

on forfeiture cases that do not involve § 983(a)(3) at all. See, 

e.g., Garcia v. Meza, 235 F.3d 287 (7th Cir. 2000); United 

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

United States, 863 F. Supp. 2d 127 (D. Mass. 2012); DeSaro 

v. United States, No. 06-cv-20531 (S.D. Fla. Aug. 8, 2006). 

It relies on cases that describe whether a statutory deadline is 

jurisdictional, which is relevant for situations in which the 

claimant failed to timely argue that the 90-day deadline in 

§ 983(a)(3) required the return of the property, with the 

claimant instead making the § 983(a)(3) argument in, e.g., a 

Rule 60 motion to vacate a judgment. See, e.g., United States 
29

 

v. Vazquez-Alvarez, 760 F.3d 193 (2d Cir. 2014) (per curiam); 

United States v. Wilson, 699 F.3d 789 (4th Cir. 2012); United 

States v. Martin, 662 F.3d 301 (4th Cir. 2011). Here, in 

contrast, the Langbords have pressed this argument since day 

one. See supra note 14. And it relies on cases interpreting 

the 60-day notice deadline in § 983(a)(1). See, e.g., United 

States v. $11,500.00 in U.S. Currency, 710 F.3d 1006 (9th 

Cir. 2013); United States v. $114,031.00 in U.S. Currency, 

No. 06-cv-21820, 2007 WL 2904154 (S.D. Fla. Oct. 4, 2007); 

Salmo v. United States, No. 06-12909, 2006 WL 2975503 

(E.D. Mich. Oct. 17, 2006); Manjarrez v. U.S. Dep’t of the 

Treasury, No. 01-7530, 2002 WL 31870533 (N.D. Ill. Dec. 

19, 2002). The 60-day notice deadline in § 983(a)(1) is 

fundamentally different from the 90-day deadline in 

§ 983(a)(3) because, if the Government misses § 983(a)(1)’s 

60-day deadline, CAFRA specifically allows the Government 

“to commence a forfeiture proceeding at a later time.” 18 

U.S.C. § 983(a)(1)(F). There is no analogous provision that 

gives the Government a second chance if it misses the 90-day 

deadline in § 983(a)(3) or otherwise excuses the failure to act. 

Congress could have included such a provision, but it did not. 

As noted by Wilson—a case relied upon by the dissent—“the 

time limit imposed on the government by § 983(a)(3) is 

mandatory.” 699 F.3d at 791. “If the Government does not 

file a complaint or take other action within 90 days as 

required, it must ‘release the property pursuant to regulations 

promulgated by the Attorney General, and may not take any 

further action to effect the civil forfeiture of such property in 

connection with the underlying offense.’” Id. at 795 

(emphasis added) (quoting 18 U.S.C. § 983(a)(3)(B)). In that 

case, Wilson lost merely because he raised his § 983(a)(3) 

argument too late, i.e., in a Rule 60 motion to vacate the 
30

B. The Declaratory Judgment

Given this conclusion, the District Court should not 

have ordered the declaratory judgment claim to proceed, and 

indeed we must vacate the declaratory judgment. The 

declaratory judgment entered by the District Court was the 

following:

The disputed Double Eagles were not lawfully 

removed from the United States Mint and 

accordingly, as a matter of law, they remain the 

property of the United States, regardless of (1) 

the applicability of CAFRA to the disputed 

Double Eagles, (2) Claimants’ [i.e., the 

Langbords’] state of mind with respect to the 

coins, or (3) how the coins came into 

Claimants’ possession.

(J.A. 52-53.) The District Court opined that “the declaration 

concerns a different–and broader–set of legal rights than the 

narrow question decided by the jury, which was simply 

whether the Government had proven its claim of forfeiture of 

the 1933 Double Eagles.” (J.A. 53-54.) However, the 

District Court recognized that “the jury’s verdict [on the 

forfeiture claim] dictates the outcome of the declaratory 

judgment claim” and that it made the declaration “solely on 

the basis of facts necessarily (although implicitly) found by 

the jury.” (J.A. 52.)

 

judgment. See id. at 707 (“Wilson forfeited his limitations 

argument by not raising it during the forfeiture 

proceedings.”). 
31

We will vacate the declaratory judgment for two 

reasons. First, the declaratory judgment proceeding cannot be 

recognized because, having missed CAFRA’s 90-day 

deadline, the Government cannot use a declaratory judgment 

proceeding to circumvent that deadline. We have held that a 

“statute of limitations can[not] be circumvented merely by 

‘[d]raping [the] claim in the raiment of the Declaratory 

Judgment Act.’” Algrant v. Evergreen Valley Nurseries Ltd. 

P’ship, 126 F.3d 178, 185 (3d Cir. 1997) (quoting Gilbert v. 

City of Cambridge, 932 F.2d 51, 58 (1st Cir. 1991)). 

Algrant’s focus is on whether the claims are “barred by a 

statute of limitations applicable to a concurrent legal 

remedy,” which means that the declaratory judgment is 

“essentially predicated upon the same cause of action.” Id. at 

184-85. Here, as the District Court acknowledged, the 

forfeiture and declaratory judgment claims are undoubtedly 

predicated upon the same cause of action, and, therefore, the 

declaratory judgment claim cannot be used to circumvent 

CAFRA’s 90-day deadline. 

Second, the declaratory judgment proceeding cannot 

be recognized because CAFRA amounts to a “special 

statutory proceeding.” Federal Rule of Civil Procedure 57 

states that “[t]he existence of another adequate remedy does 

not preclude a declaratory judgment that is otherwise 

appropriate.” Fed. R. Civ. P. 57. However, the Advisory 

Committee’s Note qualifies Rule 57 by stating that a 

“declaration may not be rendered if a special statutory 

proceeding has been provided for the adjudication of some 

special type of case, but general ordinary or extraordinary 

legal remedies, whether regulated by statute or not, are not 

deemed special statutory proceedings.” Fed. R. Civ. P. 57 

advisory committee’s note. The Supreme Court has
32

confirmed that declaratory relief “should not be granted 

where a special statutory proceeding has been provided.” 

Katzenbach v. McClung, 379 U.S. 294, 296 (1964). 

Although no court has opined that CAFRA provides 

for a special statutory proceeding, conversely, no court has 

held that CAFRA does not provide for a special statutory 

proceeding. We hold that it does. To date, “a handful of 

categories of cases have been recognized as ‘special statutory 

proceedings.’” N.Y. Times Co. v. Gonzales, 459 F.3d 160, 

166 (2d Cir. 2006). “These include: (i) petitions for habeas 

corpus and motions to vacate criminal sentences; (ii) 

proceedings under the Civil Rights Act of 1964; and (iii) 

certain administrative proceedings.” Id. (internal citations 

omitted). “Each of these categories involved procedures and 

remedies specifically tailored to a limited subset of cases, 

usually one brought under a particular statute.” Id. 

Here, there is no doubt that the realm of civil forfeiture 

involves “procedures and remedies specifically tailored to a 

limited subset of cases.” See id. CAFRA provides a 

structured scheme, which gives the parties multiple deadlines 

to follow and puts a heightened burden on the Government. 

CAFRA, like the Civil Rights Act of 1964, involves 

procedures and remedies tailored to a limited subset of cases 

and preserves individual rights. Given this tailored scheme, 

even if the Government had filed a judicial action within 90 

days from when the Langbords filed their seized asset claim 

(and therefore we did not have the Algrant issue of the 

Government using the declaratory judgment claim to 

circumvent CAFRA’s 90-day deadline), the Government 

could not use the declaratory judgment to circumvent the 

specific remedy and heightened burden that CAFRA 
33

provides. Based on either of these alternative grounds, we 

must vacate the declaratory judgment.20

C. The Remaining Issues

Because we will vacate the declaratory judgment, we 

do not address whether the jury should have decided that 

claim. Furthermore, given that we will also vacate the 

judgment on the forfeiture claim, we do not address the 

multiple trial issues raised by the Langbords, nor do we 

address the mens rea required for a violation of 18 U.S.C. 

§ 641, nor whether forfeiture is permitted for a § 641 

violation where the theft or embezzlement of Government 

property occurred before § 641 was enacted in 1948. 

IV. Conclusion

At the insistence of the Mint and against the wisdom 

of the Secret Service and multiple other agencies, the 

Government opted to ignore CAFRA. Now, the Langbords 

are entitled to the return of the Double Eagles. We will 

reverse in pertinent part the District Court’s July 29, 2009 

order, which denied the Langbords’ cross-motion for partial 

summary judgment concerning the applicability of CAFRA, 

and will vacate all orders at issue on appeal that postdate the 

July 29, 2009 order,21 including the jury verdict and the 

 

20 Given this disposition, we do not address the Langbords’ 

remaining arguments as to why the declaratory judgment 

must be vacated.

21 We will affirm the earlier order dated May 11, 2009, which 

denied both the Langbords’ and the Government’s motions to 
34

District Court’s order entering judgment. We will remand for 

the District Court to order the Government to return the 

Double Eagles to the Langbords.

 

exclude expert witnesses. We express no opinion as to 

whether the expert testimony at trial was appropriate.
Langbord v. U.S. Dep’t of the Treasury

No. 12-4574

Argued: November 19, 2014

SLOVITER, Circuit Judge, dissenting:

The members of this panel agree on certain basic 

issues: The Government of the United States (hereafter

“Government”) acted unconstitutionally when it seized the 

ten Golden Eagle coins that had been delivered to it on behalf 

of the Langbords for authentication and determined to retain 

those coins without proceeding to a hearing after the seizure.

1

 

And I agree with the District Court and the majority that the 

seizure took place when the Government sent its notice that it 

would not return the coins.

I also agree with the majority’s view that the 

Government in this case rather casually treated its obligation 

 

1 The Government has chosen not to rely on the 

characterization of the Golden Eagles as “contraband” and 

thus does not argue the application of 18 U.S.C. §

983(a)(1)(F), which provides that “The Government shall not 

be required to return contraband or other property that the 

person from whom the property was seized may not legally 

possess.” Because gold may now be possessed, we will not 

try to determine whether the Golden Eagles were contraband 

at the time McCann and Switt illegally removed them from 

the Mint.
2

under CAFRA to proceed to a hearing. Although it acted for 

what turned out to be good reason (i.e. that because the 

Double Eagles were stolen from the Mint—a conclusion 

reached by two fact-finders after a full hearing—they were 

already Government property and there was no reason to 

subject them to forfeiture), the proper course of action was to 

institute forfeiture proceedings to allow a court to determine 

the disputed property rights. See United States v. Barnard, 72 

F. Supp. 531, 532 (W.D. Tenn. 1947); App. at 59. The 

District Court, who throughout this case was the Honorable 

Legrome Davis of the Eastern District of Pennsylvania, 

agreed with the Langbords. The Court held that the 

“appropriate and authorized remedy for the Government’s 

denial of Plaintiffs’ due process rights is a prompt forfeiture 

hearing.” App. at 166. It therefore effected a remedy by 

ruling: “Accordingly we will direct the Government to 

initiate a judicial forfeiture proceeding as part of this action 

on or before Monday, September 28, 2009.” Id. In other 

words, the Langbords won that issue.

This, however, is where my agreement with the 

majority ends. I definitely do not agree with the majority’s 

holding that the Langbords are now “entitled to the return of 

the Double Eagles,” Maj. Op. at 12, because the Government 

failed to institute judicial civil forfeiture proceedings “within 

90 days” of receiving the Langbords’ self-styled seized asset 

claim. There is no provision of CAFRA that makes ultimate 

entitlement to the disputed property conditional on the 

amount of time before the Government files a forfeiture 

hearing. Although there is language in CAFRA that requires 

the Government to return items it seized or proceed to have 

the issue of ownership decided by a forfeiture proceeding, 

this does not mean that the claimants are entitled to 
3

ownership of the property at issue, although the jury has 

determined that the property belongs to the Government,

which is the result the majority appears to reach.

The statute does not state or suggest that the return is 

unconditional. In fact, the provision on which the majority 

relies, § 983(a)(3) provides “return the property” “pending the 

filing of a complaint . . . .” Neither the legislative history nor 

the majority explains the meaning of the “pending” condition.

The majority also asserts that CAFRA (through 

incorporation of another provision) requires that notice of a 

seizure must be given within 60 days of a seizure, which it 

argues at length is required in some but not all cases. I do not 

agree. I believe notice is required in all cases and the 

Constitution and the relevant statutes so require.

Finally, the majority vacates the District Court’s award 

of declaratory judgment on a basis no court has accepted, and 

with which I cannot agree.

I

The majority’s position that the Government has lost 

its entitlement to its own property because it failed to follow 

the strict requirement of CAFRA as to the time to file a 

forfeiture suit has been rejected in principle by numerous 

courts, among them the Supreme Court of the United States, 

other courts of appeals, and many district courts. Those 

courts have held that the Government’s failure to strictly 

adhere to a statutory timeframe does not deprive the 

Government of the chance to pursue the action contemplated 

by the statute.
4

In United States v. $8,850 in U.S. Currency, 461 U.S. 

555, 558 (1983), the Supreme Court had before it a similar 

statute providing for forfeiture (in that case, of currency), 

which required the United States Attorney “if it appears 

probable that a forfeiture has been incurred” to “cause the 

proper proceedings to be commenced and prosecuted without 

delay.” Id. (citing 19 U.S.C. § 1604). The Court, through 

Justice O’Connor writing for eight Justices, rejected the 

claimant’s argument that the Government’s “dilatory” 

commencement of civil forfeiture violated the claimant’s 

right to due process. Id. at 561. Justice O’Connor noted that 

“The Government must be allowed some time to decide 

whether to institute forfeiture proceedings.” Id. at 565. She 

further commented that the issue of “the length of time 

between the seizure [of the item at issue] and the initiation of 

the forfeiture trial—mirrors the concern of undue delay 

encompassed in the right to a speedy trial” analyzed in Barker 

v. Wingo, 407 U.S. 514 (1972), where the Court enunciated a 

balancing test. 461 U.S. at 564. After considering the 

relevant factors, the Court stated that although the 

Government’s 18-month delay instituting civil forfeiture 

proceedings was “substantial,” it was reasonable and the 

claimant had not asserted or shown that the delay prejudiced 

her ability to defend against the forfeiture. Id. at 569-70. 

The Court reversed the holding of the court of appeals 

dismissing the forfeiture action and remanded for forfeiture 

proceedings. Id. at 570.

That case was decided before the enactment of 

CAFRA, but similar reasoning has been applied by other 

courts dealing with forfeiture under CAFRA or statutes with 

similar provisions. One such example can be found in United 

States v. Vazquez-Alvarez, 760 F.3d 193 (2d Cir. 2014).
5

Claimant Vazquez interposed two grounds to defeat the 

Government’s forfeiture of currency he had carried into the 

country: one, irrelevant here, was that the Government did 

not execute its warrant against the cash. Id. at 195. The 

second, most relevant here, was that the Government failed to 

bring its forfeiture action within the time set by the statute. 

Id. Both, he argued, stripped the district court of its 

jurisdiction over the res. Id. The Second Circuit, in a per 

curiam opinion, stated, “We disagree. The statutory time 

limits for commencing a forfeiture action are claimsprocessing rules, not jurisdictional rules.” Id. Ultimately 

dismissing Vazquez for lack of standing, the court rejected

the claimant’s allegation that he should prevail because the 

Government filed its civil forfeiture action “well after the 60-

day time period allotted by 18 U.S.C. § 983(a)(1)(A)(ii).” Id.

at 198. It stated, “assuming without deciding that the 

[G]overnment filed late, a late-filed forfeiture action would 

not deprive the district court of subject matter jurisdiction.” 

Id. 

The Vazquez-Alvarez court relied in part on a Fourth 

Circuit decision, United States v. Wilson, 699 F.3d 789 (4th 

Cir. 2012). In Wilson, the claimant sought to set aside a 

forfeiture judgment as void because the Government had 

filed its forfeiture complaint later than § 983(a)(3)’s 90-day 

time limit. 699 F.3d at 791. The claimant had not raised the 

timing objection during the forfeiture proceeding, but argued 

that “the time limit was jurisdictional and therefore was not 

forfeited by his failure to raise it.” Id. The Fourth Circuit 

rejected the claimant’s argument, stating, “While the time 

limit imposed on the [G]overnment by § 983(a)(3) is 

mandatory, it is not jurisdictional.” Id. In reaching this 

conclusion, the court noted, 
6

it readily appears that the 

provisions of § 983 are procedural 

rules for pursuing the forfeiture of 

seized assets. The subject matter 

jurisdiction for forfeiture is 

conferred by 28 U.S.C. § 1355(a); 

the authority to forfeit is provided 

by 21 U.S.C. § 881(a)(6); and the 

rules of procedure for pursuing a 

civil forfeiture are provided by 18 

U.S.C. § 983.

Id. at 795. The court further noted that § 983(a)(3)(A) allows 

courts to “extend the period for filing a complaint for good 

cause shown or upon the agreement of the parties,” and stated 

that the possibility of an extension of time “undercuts any 

argument that the deadline is jurisdictional. Congress does 

not typically allow an agreement of the parties to define the 

scope of the district court’s authority to hear a case.” Id. 

Thus, the court concluded that “the provisions of § 983 are 

procedural rules for pursuing the forfeiture of seized assets,”

not “conditions of subject matter jurisdiction.” Id.

The Wilson court relied on the decision of the United 

States Supreme Court in Dolan v. United States, 560 U.S. 605

(2010), where Justice Breyer, speaking for the Court, 

analyzed in detail the effect to be given different statutory 

“deadlines.” 699 F.3d at 793. The statute under 

consideration in Dolan (the Mandatory Victims Restitution 

Act, 18 U.S.C. § 3664) provided that in sentencing “the court 

shall set a date for the final determination of the victim’s 

losses, not to exceed 90 days after sentencing.” The 90-day 
7

deadline passed, and the Supreme Court undertook to 

consider the consequences of the missed deadline where the 

statute does not specify the particular consequences. In 

answering that question, Justice Breyer noted that the Court 

has looked to statutory language, the relevant context, and “to 

what they reveal about the purposes that a time limit is 

designed to serve.” 560 U.S. at 610. He considered first two 

possibilities: whether the 90-day deadline in the case before 

the Court had a jurisdictional purpose or whether it was an

ordinary claim-processing rule. After rejecting those 

possibilities, he concluded that there was a third possibility

which he held was applicable: “a time-related directive that 

is legally enforceable but does not deprive a judge or other 

public official of the power to take the action to which the 

deadline applies if the deadline is missed.” Id. at 611 

(emphasis added).

The analysis applied by Justice Breyer in Dolan

requires rejection of the majority’s position that the 

Government’s failure to file a civil forfeiture action within 90 

days of the Langbords’ filing of a seized asset claim requires 

return of the Golden Eagles to the Langbords. The first factor 

to which Justice Breyer looked was the statutory language. 

He noted that the use of the word “shall” in the statute’s timerelated directive has not, alone, “always led this Court to 

interpret statutes to bar judges (or other officials) from taking 

the action to which a missed statutory deadline refers.” Id.

(emphasis added). Similarly, the use of the word “shall” in 

§ 983(a)(3)(A) (“Not later than 90 days after a claim has been 

filed, the Government shall file a complaint for forfeiture . . . 

. ” (emphasis added)) is not dispositive here. As Justice 

Breyer explained, the statute’s “main substantive objectives” 

control. Id. at 613. In Dolan, the statute at issue was meant 
8

to “help victims of a crime secure prompt restitution rather 

than to provide defendants with certainty as to the amount of 

their liability.” Id. Applying similar reasoning, we see that 

CAFRA’s purpose is not to deprive the Government of its 

property, but rather to determine the rightful owner of the 

property. As stated in the House Report introducing CAFRA,

H.R. 1965 [CAFRA] is designed 

to make federal civil forfeiture 

procedures fair for property 

owners—to give innocent 

property owners the means to 

recover their property and make 

themselves whole. H.R. 1965 is 

not designed to emasculate federal 

civil forfeiture efforts. To the 

contrary, by making civil 

forfeiture fairer, this Committee is 

prepared to (and H.R. 1965 does) 

expand the reach of civil 

forfeiture and make it an even

stronger law enforcement tool.

H.R. Rep. No. 105-358(I), at 27 (1997). Therefore, as in 

Dolan, I disagree with reading the word “shall” in the statute 

to deprive the Government of the opportunity to pursue its 

property claim. 

The effect of a missed statutory deadline does not 

require the Government to lose its opportunity to provide the 

proceedings that were missed, as noted in cases from the 

Supreme Court, the other courts of appeals and the district 

courts. As explained in its comprehensive analysis, the 
9

Fourth Circuit classified the 90-day “deadline” in another 

forfeiture statute as a “time-related directive,” one even more 

forgiving than a “claims processing rule.” United States v.

Martin, 662 F.3d 301, 308 (4th Cir. 2011). The majority 

continually stresses that CAFRA “requires” the Government 

to file a civil forfeiture action. Here again, the Dolan opinion 

and its progeny show that the majority is wrong. 

In Dolan, the Court was concerned about the possible 

harm to the victim from the missed deadline. In this case, the 

majority hypothesizes no harm to the Langbords. Although

the majority does not point us to a single way in which the 

Langbords were harmed, it argues that they were prejudiced

by the Government’s “undue delay.” The District Court 

addressed the issue of delay in the context of the Langbords’ 

objection to the Government’s filing of its declaratory 

judgment claim. Judge Davis denied the Langbords’ 

objection, stating, “Permitting the United States to now bring 

its desired . . . declaratory judgment count[] neither 

introduces new factual issues nor revives irrelevant disputes. 

In short, [the Langbords] will occupy no worse a position 

than had the Government brought this counterclaim when 

answering the 2006 complaint.” App. at 125-26. I agree.

The majority also presses its case against the 

Government for its alleged failure to comply with § 983 

requiring notice of its seizure within 60 days. I note that the 

Langbords were aware from the very beginning of the matter 

of the Government’s position as to the Golden Eagles. 

Shortly after the Langbords’ counsel presented the coins to 

the Mint for authentication and sought $40 million for them 
10

from the Government, App. 1442, the Government’s counsel 

sent him a written memorandum advising that the coins were 

government property and “that the U. S. Mint has no intention 

of seeking forfeiture of [them].” App. at 143-44. Thus, the 

Langbords were on notice of the Government’s chosen course 

of action well within the statute’s 60-day notice requirement, 

and therefore suffered no prejudice from lack of notice.

In Dolan, the Court stated that the party normally can 

mitigate any harm that a missed deadline might cause by 

simply telling the court or setting a timely hearing, which is 

what happened in this case. See 560 U.S. at 615-16. When 

the Langbords raised the absence of a hearing Judge Davis 

ordered one. There are numerous cases, including those in 

the Supreme Court, the other circuits, and the district courts,

that applied the same approach. Id. at 611 (finding a court’s 

violation of the statutory timeframe to sentence a defendant to 

be a mere “time-related directive” that is legally enforceable 

but ultimately does not deprive the court of power to 

determine the substantive issue); Barnhart v. Peabody Coal 

Co., 537 U.S. 149, 171-172 (2003) (missed deadline for 

assigning industry retiree benefits does not prevent later 

award of benefits); Regions Hosp. v. Shalala, 522 U.S. 448, 

459 n.3 (1998) (even though Government missed the statutory 

deadline to file a report with Congress by approximately five 

years, the “failure to meet the deadline . . . . does not mean 

that [the] official lacked power to act beyond it”); United 

States v. Montalvo–Murillo, 495 U.S. 711, 722 (1990) 

(missed statutory deadline for holding bail detention hearing 

does not require judge to release defendant); Brock v. Pierce

 

2 Later, the Langbords lowered their claim to $7 or $8 

million. 
11

Cnty., 476 U.S. 253, 266 (1986) (missed statutory deadline 

for making final determination as to misuse of federal grant 

funds does not prevent later recovery of funds); United States 

v. Williams, 720 F.3d 674, 702 (8th Cir. 2013), cert. denied, 

134 S. Ct. 1337 (2014) (failing to follow criminal forfeiture 

procedures at trial does not relinquish the district court’s 

ability to order post-conviction forfeiture); Martin, 662 F.3d 

at 308-09 (deadline for the district court to enter a criminal 

forfeiture order is a “time-related directive” and thus missing 

the deadline did not strip district court of the power to enter 

forfeiture orders); Cyberworld Enter. Techs., Inc. v. 

Napolitano, 602 F.3d 189, 198 (3d Cir. 2010) (Government 

was not precluded from taking action when it imposed

sanctions on an employer eighteen months after the statutory 

limitations period expired); Shenango Inc. v. Apfel, 307 F.3d 

174, 196-97 (3d Cir. 2002) (affirming that Government could 

assign benefits to employees under the Coal Act even after 

end of the statutory deadline for such assignment because the 

statutory timeframe was not meant to strip the Government of 

power to act beyond the deadline); Sw. Pa. Growth Alliance 

v. Browner, 121 F.3d 106, 113–115 (3d Cir. 1997) (denying

petition to review the Environmental Protection Agency’s 

ruling even though the ruling occurred outside the statutory 

timeframe because the statutory timeframe does not divest the 

agency of jurisdiction to act); Marshall Durbin Food Corp. v.

Interstate Commerce Comm’n, 959 F.2d 915, 919 (11th Cir. 

1992) (Interstate Commerce Commission’s (“ICC”) failure to 

review Administrative Law Judge’s (“ALJ”) preliminary 

decision within mandatory review period did not divest ICC 

of authority to reverse ALJ decision); Lowell Consortium v. 

U.S. Dep’t of Labor, 893 F.2d 432, 433 n.3 (1st Cir. 1990) 

(allowing agency to recover funds almost five years after 120-

day mandatory period had expired); City of Camden v. U.S. 
12

Dep’t of Labor, 831 F.2d 449, 451 (3d Cir. 1987) (allowing 

agency to recover funds six years after 120-day mandatory 

period had expired); St. Regis Mohawk Tribe, N.Y. v. Brock, 

769 F.2d 37, 46 (2d Cir. 1985) (Government’s failure to 

comply with the 120-day time limit for directing repayment 

of misspent federal grant funds did not bar Government from 

making the determination as it would “sacrifice[e] the public 

interest because of the negligence of public officers”); Balt. & 

Ohio Chi. Terminal R.R. v. United States, 583 F.2d 678, 690 

(3d Cir. 1978), cert. denied, 440 U.S. 968 (1979) (because the 

Interstate Commerce Act “contains no express sanction for 

noncompliance” with the statutory deadline, belated agency 

proceedings need not be dismissed); Usery v. Whitin Mach. 

Works, Inc., 554 F.2d 498, 501 (1st Cir. 1977) (under the 

Trade Act of 1974, the Government may determine an 

employee’s eligibility for economic assistance even if the 

determination is outside the 60-day statutory limit). 

The majority disparages my dissent’s use of what it 

calls “easily distinguishable cases” that do not involve §

983(a)(3). See Maj. Op. at 28 n.19. The numerous cases 

cited in the dissent are hardly “easily distinguishable.” They 

involve forfeiture, as does CAFRA. It was my understanding 

that appellate opinions frequently apply reasoning from 

similar, albeit different statutes, to make a point. The 

majority apparently requires one-on-one identity with the 

statute under consideration. The majority apparently feels 

free to censure a mere colleague’s use of analogous 

precedent, but it apparently doesn’t notice or recognize 

application of the same approach by a member of the 

Supreme Court of the United States. For example, Justice 

Breyer, in Dolan, uses as precedent for the Court’s analysis of 

the Mandatory Restitution Act what the majority would 
13

regards as “easily distinguishable” statutes. See Dolan, 360 

U.S at 612 (citing Montalvo-Murillo, 495 U.S. at 718-19 

(interpreting Bail Reform Act of 1984); Brock, 476 U.S. at 

262 (interpreting Comprehensive Employment Training Act); 

Barnhart, 537 U.S. at 158-63 (interpreting Coal Industry 

Retiree Health Benefit Act of 1992); Regions Hosp., 522 U.S.

at 459 n.3 (interpreting Medicare Act)).

It stands to reason, then, that the proper remedy for a 

failure to follow CAFRA’s notice or filing timeframes is to 

order the Government to comply with the statute, and many 

courts have so held. For example, in DeSaro v. United States, 

No. 06-cv-20531 (S.D. Fla. Aug. 8, 2006), after the 11th 

Circuit had remanded the individual’s CAFRA claim against 

the Government for its seizure and four year retention of two 

oil paintings without filing a forfeiture suit and without 

providing the required 60 day notice in criminal actions, the 

district court held that because the ownership and 

forfeitability of the paintings had been the subject of litigation 

almost since they were seized, the “requirement to bring a 

timely forfeiture action is therefore tolled.” Id.; see also 

Garcia v. Meza, 235 F.3d 287, 292 (7th Cir. 2000) (ordering 

Government to either return the property or institute judicial 

forfeiture proceedings after Government’s original attempt at 

notice was deemed not to have afforded due process); United 

States v. Giraldo, 45 F.3d 509, 512 (1st Cir. 1995) (“If the 

notice turns out to have been [constitutionally] inadequate, 

the forfeiture is void. The district court then must set aside 

the declaration of forfeiture and order the Customs Service to 

return the money to Giraldo or begin judicial forfeiture 

proceedings in the district court.”); Lopez v. United States, 

863 F. Supp. 2d 127, 130 (D. Mass. 2012) (“When a district 

court concludes that procedural deficiencies render an 
14

administrative forfeiture void, it must order the agency to 

return the seized property or begin judicial forfeiture 

proceedings.”); United States v. $114,143.00 in U.S. 

Currency Seized from Michael J. Callash’s Vehicle, 609 F. 

Supp. 2d 1321, 1322-23 (S.D. Fla. 2009) (ordering 

Government to file a forfeiture complaint after the Drug 

Enforcement Administration improperly rejected a seized 

asset claim, where the claimant was aware within the notice 

period that Government had commenced administrative 

forfeiture proceedings, and noting that “the interests of justice 

are best served here . . . by allowing the parties to resolve [the

forfeiture claim] on the merits” (alterations in original; 

internal citations omitted)).

The majority focuses exclusively on the “return of the 

Golden Eagles.” It does not challenge the District Court’s 

decision that the Government’s institution of a civil forfeiture 

proceeding would be an adequate remedy. In so ruling, the 

District Court stated that “[the Langbords] concede that return

is not required if the Government promptly initiates a judicial 

forfeiture proceeding.” App. at 157 (citing Plaintiffs’ Motion 

for Summary Judgment, Due Process & Illegal Seizure). The 

Court continued, “it is well established that ‘illegal seizure of 

property does not immunize it from forfeiture as long as the

[G]overnment can sustain the forfeiture claim with 

independent evidence.’” Id. (citing United States v. Pierre,

484 F.3d 75, 87 (1st Cir. 2007); United States v. 47 West 644 

Route 38, 190 F.3d 781, 782 (7th Cir. 1999)). The majority 

never explains why the ten day forfeiture trial presided over 

by Judge Davis, “at which time the [Langbords could] raise 

whatever defenses [were] available to them,” did not provide 

an adequate remedy. App. at 165 (citing United States v. Von 
15

Neumann, 474 U.S. 242, 251 (1983); Garcia v. Meza, 235 

F.3d 287, 292 (7th Cir. 2000); Giraldo, 45 F.3d at 512).

As to the adequacy of the remedy ordered I note the 

Ninth Circuit’s comments in United States v. $11,500.00 in 

U.S. Currency, 710 F.3d 1006 (9th Cir. 2013), another 

CAFRA case where the Government was directed to send 

notice after missing the statutory deadline. The court asked, 

“is the [G]overnment required to return the property even if it 

has in the meantime commenced forfeiture proceedings?” Id. 

at 1016. In that case, by the time the issue was raised before 

the district court, the forfeiture proceeding was underway. 

The Ninth Circuit responded to its own question: “requiring

the return of the property and then permitting the 

[G]overnment to immediately re-seize it would impose a 

meaningless exercise.” Id.; see also United States v. 

$114,031.00 in U.S. Currency, No. 06-CIV-21820, 2007 WL 

2904154, at *3 (S.D. Fla. Oct. 4, 2007); Salmo v. United 

States, No. 06-12909, 2006 WL 2975503, at *3 (E.D. Mich. 

Oct. 17, 2006); Manjarrez v. U.S. Dep’t of the Treasury, Nos. 

01 C 7530 & 01 C 9495, 2002 WL 31870533, at *2 (N.D. Ill. 

Dec. 19, 2002). 

That leads to one of my principal bases for diverging

from the majority: it does not acknowledge that a forfeiture 

proceeding did in fact take place and simply omits to mention 

the result of that proceeding. It is indeed baffling that the 

majority, which fervently asserts that a forfeiture proceeding 

should have taken place earlier (precise date never listed), 

disregards the result of the forfeiture proceeding when it did 

take place. After a ten-day trial before Judge Davis, the jury 

found “in favor of the United States on Count [I]
16

(forfeiture)”—a verdict the District Court found was fully 

supported by the evidence. App. at 59. 

In its post-trial findings, the District Court laid out the 

substantial evidence the Government presented at trial in 

support of its case. The District Court reviewed the 

Government’s evidence of the movements of all 445,500 

1933 Double Eagles that were minted as presented through its 

expert, David Tripp’s, testimony about the Mint’s 

“meticulous,” “exquisitely detailed” records. App. at 9-11. 

The Court noted that “Tripp accounted for each and every one 

of the 445,500 1933 Double Eagles, and showed that not a 

single ’33 Double Eagle was issued to the public.” App. at 

12. The Court noted that the “first ‘bank holiday’ forbidding 

the payout of gold coins took effect on March 6[, 1933], nine 

(9) days before the first shipment of ’33 Double Eagles to the 

Philadelphia Mint cashier.” Id. On June 27, 1933, 445,000 

of the coins were sealed in a basement vault at the Mint. Id. 

“The remaining 500 coins were in the cashier’s control at one 

point or another.” Id. After 29 coins were destroyed and 437 

were returned to the Mint’s basement vaults, the cashier was 

left with 34 coins. Id. The records reflect that all 34 coins 

that remained with the cashier “were moved to a basement 

vault on February 2, 1934.” Id. at 12-13. The Mint sent two 

coins to the Smithsonian in October of 1934. Id. at 13.

[T]he Mints were authorized to 

begin melting their general stock 

of gold coins as of August 4, 

1934. That included, of course, 

the ’33 Double Eagles held in the 

Philadelphia Mint’s vault. The 

Mints started melting gold shortly 
17

thereafter, and the entire process 

took about two-and-a-half years to 

complete. Because Tripp could 

account for all of the ’33 Double 

Eagles and none were ever 

authorized for release, Tripp 

concluded that no ’33 Double 

Eagles—including the coins in 

this case—could have been 

obtained through legitimate 

means.

Id. at 13-14.

The District Court found, relying on Tripp’s testimony, 

that “[t]he jury saw no record of a legitimate ’33 Double 

Eagle release, and from this lack of documentation one may 

reasonably infer that the responsible party appropriated the 

coins in secret, knowing full well the wrongfulness and 

illegality of his actions.” App. at 35. Furthermore, despite 

Switt’s own testimony, in earlier proceedings, that he never 

obtained any gold coin from the Philadelphia Mint, Switt and 

McCann’s3 bank accounts evidence thousands of dollars of 

deposits to McCann’s bank accounts that emanated from an 

account Switt controlled. And, “the Secret Service 

determined that McCann was the likely inside source of the 

’33 Double Eagles; as Mint cashier, McCann had the 

opportunity to abscond with the coins, and McCann’s 

conviction for stealing other coins from the Mint shows that 

 

3 Recall that Switt was the source of the Langbords’ coins and 

McCann was the cashier at the Philadelphia U.S. Mint during 

the relevant period. 
18

he knew how to pull it off.” App. at 36. After a lengthy 

investigation, the Secret Service could not identify any 1933 

Double Eagle that left the Mint other than coins traced to the 

possession of Israel Switt.

As to the Langbords’ knowledge, the Government 

presented evidence that in 2002, after reading a New York 

Times article about the Fenton 1933 Double Eagle (which 

mentioned Switt), Roy Langbord called Joan Langbord to ask 

if Switt (his grandfather) had kept any more of the coins. 

Joan Langbord admitted to looking into the safe deposit box 

that contained the Double Eagles many times over the years, 

including the day before the Fenton coin was auctioned, but 

maintained that she knew nothing about the coins until she 

discovered them at the bottom of the same safe deposit box in 

2003. As the District Court noted, 

the evidence supports an inference 

that Joan Langbord knew her 

father had stolen the coins and 

hidden them in the family’s safe 

deposit box; she found the coins 

well before the Fenton ’33 Double 

Eagle went up for auction and 

continued to conceal them; her 

son Roy also knew of the 

questionable provenance of [the] 

1933 Double Eagles, at least after 

reading the New York Times 

piece in 2002; and the Langbords 

decided to reveal the coins to the 

Government only after learning of 

their immense monetary value, 
19

hoping to cash-in like Stephen 

Fenton did.

Id. at 37. Thus, substantial evidence supports the jury’s 

verdict and the District Court’s declaratory judgment that the 

coins left the Mint illegally, that Switt was involved, that his 

relatives knew that the coins’ acquisition was illegal and 

continued to conceal them, and thus, that the coins should be 

forfeited. None of the evidence discussed above relies upon 

the Secret Service reports, the admissibility of which, as the 

majority references, was contested on appeal on hearsay 

grounds4.

On Count II (declaratory judgment), the District Court 

declared:

The disputed Double Eagles were 

not lawfully removed from the 

United States Mint and 

accordingly, as a matter of law, 

they remain the property of the 

United States, regardless of (1) 

the applicability of CAFRA to 

the disputed Double Eagles, (2) 

Claimants’ state of mind with 

respect to the coins, or (3) how 

 

4 The majority states that it does not reach the hearsay-withinhearsay rule, see Maj. Op. at 10 n.5, but it then proceeds to 

reach it. I will not reach that issue because, as set forth in the 

text, there is ample evidence to support the jury’s verdict 

without relying on the Secret Service reports.
20

the coins came into the 

Claimants’ possession.

App. at 5.

Though the majority’s entire objection to the 

Government’s position in this case stems from the 

Government’s failure to file a forfeiture suit, and its failure to 

do so within the 90-day period that CAFRA fixes for that 

action, the majority gives no credit to the result of the 

judgment.

Finally, I believe Congress would be incredulous if 

this court were to hold that the Langbords should be given the 

Golden Eagles for which they originally sought $40 million 

because a federal lawyer did not file a forfeiture complaint 

within 90 days of the applicants filing a seized asset claim,

notwithstanding the decision of two triers of fact that the 

Golden Eagles at issue belonged to the United States.

II

The majority rejects the Government’s position (and 

the District Court’s conclusion) that the Government never 

instituted administrative forfeiture proceedings in this case

because it never sent notice of its intent to forfeit the coins. 

The majority reasons, in part, that notice cannot possibly be 

the triggering event for CAFRA’s timeframes because, it 

believes, the forfeiture statutes require notice in “some, but 

not all, nonjudicial civil forfeiture proceedings.” Maj. Op. at 

17-18. I cannot agree with this reading of the forfeiture 

statutes. Section 1607 merely exempts “vessel[s], vehicle[s], 

aircraft, [and] merchandise” worth over $500,000 from the 

administrative forfeiture process altogether, meaning that for 
21

such objects, the Government would have to resort to judicial 

forfeiture. See Stefan D. Cassella, Asset Forfeiture Law in 

the United States 154-55 (2d ed. 2013). Objects not covered 

by § 1607 are addressed in a later statutory section: 

If any vessel, vehicle, aircraft, 

merchandise, or baggage is not 

subject to section 1607 of this 

title, the appropriate customs 

officer shall transmit a report of 

the case, with the names of 

available witnesses, to the United 

States attorney for the district in 

which the seizure was made for 

the institution of the proper 

proceedings for the condemnation 

of such property.

19 U.S.C. § 1610. Thus, rather than sending notice to 

interested parties as for an administrative forfeiture, seized 

property not subject to § 1607 is referred to the U.S. Attorney 

for judicial forfeiture proceedings. See Malladi Drugs & 

Pharm., Ltd. v. Tandy, 552 F.3d 855, 887 (D.C. Cir. 2009)

(“Under the customs laws, the DEA may forfeit seized goods 

valued at more than $500,000 only upon a judicial decree 

after judicial forfeiture proceedings, 19 U.S.C. § 1610, but 

may administratively forfeit goods valued at or less than 

$500,000.”). The reason for this is that “forfeitures involving 

more valuable property must be processed through the 

judicial system.” 135 Cong. Rec., S12622-01 (daily ed. Oct. 

4, 1989) (Statement of Sen. Joseph Biden). However, as the 

majority recognizes, the Double Eagles are monetary 

instruments which do not fall under the $500,000 threshold of 
22

§ 1607(a)(1) and for which administrative forfeiture is 

allowed. See 19 U.S.C. § 1607(a)(4).

Furthermore, the majority’s contention that § 983(e)(1) 

(“[a]ny person entitled to written notice in any nonjudicial 

civil forfeiture proceeding under a civil forfeiture statute who 

does not receive such notice may file a motion to set aside a 

declaration of forfeiture with respect to that person’s interest 

in the property”) contemplates administrative forfeitures 

beginning without notice being sent, see Maj. Op. at 20-21,

disregards the fact that the Government often seizes property 

and does not know all of the parties that may have an interest 

in the property. The notice provision requires the 

Government both to send notice “to each party who appears 

to have an interest in the seized article” and to publish notice 

in the newspaper for this very reason. 19 U.S.C. § 1607(a). 

Cassella explains that the Government must generally send 

notice to “the person from whom the property was seized, the 

titled owner of the property, lienholders, and any other person 

known to the Government to have an interest.” Cassella, 

supra, at 175. Section 983 specifically provides for situations 

in which “the identity or interest of a party is not determined 

until after the seizure or turnover but is determined before a 

declaration of forfeiture.” 18 U.S.C. § 983(a)(1)(A)(v). 

Thus, I read § 983(e)’s discussion of a party “who does not 

receive such notice” to contemplate instances in which a 

person has an interest in seized property, but to whom the 

Government does not send notice because it does not know 

that person’s identity—not because it has no obligation to 

contact that person. Indeed, § 983(e) allows such persons to 

set aside forfeiture where “(A) the Government knew, or 

reasonably should have known, of the moving party’s interest 

and failed to take reasonable steps to provide such party with 
23

notice; and (B) the moving party did not know or have reason 

to know of the seizure within sufficient time to file a timely 

claim.” Id. § 983(e). Far from evidencing that an 

administrative forfeiture proceeding begins before notice is 

given, § 983(e) reinforces the notion that notice is required to 

institute administrative forfeiture.

III

The majority questions whether the District Court had 

the authority to issue a declaratory judgment in a CAFRA 

case. Under the Declaratory Judgment Act, “any court of the 

United States, upon the filing of an appropriate pleading, may 

declare the rights and other legal relations of any interested 

party seeking such declaration, whether or not further relief is 

or could be sought.” 28 U.S.C. § 2201(a). Rule 57 provides, 

“The existence of another adequate remedy does not preclude 

a declaratory judgment.” Fed. R. Civ. P. 57. The District 

Court entered declaratory judgment for the Government, 

ruling that the “Double Eagles were not lawfully removed 

from the United States Mint and accordingly, as a matter of 

law, they remain the property of the United States . . . . ” 

App. at 5. 

The majority vacates the declaratory judgment on a 

basis no court has accepted. 

The Advisory Committee notes to Rule 57 state, “A 

declaration may not be rendered if a special statutory 

proceeding has been provided for the adjudication of some 

special type of case, but general ordinary or extraordinary 

legal remedies, whether regulated by statute or not, are not 

deemed special statutory proceedings.” Id. (1937 Advisory 
24

Committee notes); see also Katzenbach v. McClung, 379 U.S. 

294, 296 (1964) (declaratory relief “should not be granted 

where a special statutory proceeding has been provided”). 

The majority holds that CAFRA is a “special statutory 

proceeding” under Rule 57.

However, since the enactment of 

the Declaratory Judgment Act, 

only a handful of categories of 

cases have been recognized as 

“special statutory proceedings” 

for purposes of the Advisory 

Committee’s Note. These 

include: (i) petitions for habeas 

corpus and motions to vacate 

criminal sentences; (ii) 

proceedings under the Civil 

Rights Act of 1964; and (iii) 

certain administrative 

proceedings.

N.Y. Times Co. v. Gonzales, 459 F.3d 160, 166 (2d Cir. 2006) 

(internal citations omitted). The parties do not direct us to, 

nor could I find, any case finding forfeiture statutes to 

preclude declaratory judgment, and the majority’s interest in 

being the first court to so hold is questionable.

In support of its argument that CAFRA fits as a 

“special statutory proceeding,” the majority, noting the 

inclusion of the Civil Rights Act of 1964 within that rare 

group of statutes that have been held to fit within that 

category, compares CAFRA with the Civil Rights Act of 

1964. Maj. Op. at 32. That such a comparison could be 
25

issued in an opinion of the Third Circuit which has a 

distinguished history in support of civil rights, whatever the 

context, shocks my conscience. I can attribute it only to the 

desperation of its position.

Moreover, as the District Court noted, even where a 

statute provides for “special statutory proceedings” that 

would normally preclude declaratory judgment, a declaratory 

remedy may still be necessary. See App. at 64. The District 

Court reasoned, “even if CAFRA did typically provide a 

special statutory remedy, it does not do so in this case.” Id. 

The Court considered the Government to be playing a dual 

role in this action: as a representative of the people of the 

United States seeking forfeiture of the proceeds of an alleged 

crime, and as the property owner seeking to reestablish legal 

title to the coins. CAFRA’s remedies could accomplish the 

forfeiture, but could not establish the property interest the 

Government sought to vindicate. Therefore, the Court 

determined that the Government could pursue declaratory 

relief. The numerous district courts throughout the county 

who hear CAFRA cases will be surprised to read that the 

Third Circuit has deprived them of a tool they have used as a 

matter of course. Why? Is the majority so eager to go down 

in history as the first court to scuttle a useful procedure?

In responding to the Government’s requested 

declaration that the disputed Double Eagles were not lawfully 

removed from the United States Mint and accordingly remain 

the property of the United States, the Langbords argued that 

the declaration “would impermissibly interfere with the 

province or the jury.” App. at 57. The District Court noted, 

“Since the Government won on the forfeiture claim, the jury 

must have found the coins were ‘not lawfully removed’ from 
26

the Mint.” Id. It then noted, “The principle of jury 

supremacy binds us to that finding.” Id. (citing Roebuck v. 

Drexel Univ., 852 F.2d 715, 717 (3d Cir. 1988)). That 

principle also binds my colleagues as it did the District Judge, 

who also stated it made it “unnecessary [for the District 

Court] to conduct any additional fact finding to resolve the 

Government’s declaratory judgment claim.” Id.

IV

A careful review of the provisions of CAFRA, its 

legislative history, and the cases that have interpreted it 

reveals that the purpose of the statute, its notices, and its 

detailed 

procedures, is to allow those claiming an interest in 

potentially forfeitable property to have the merits of their case 

heard by a fact finder, who will reach a fair determination as 

to which party among those who lay claim on the subject in 

dispute is entitled to the subject. It is that ultimate issue that 

counts, which party is entitled to the property, even if the time 

taken to reach that decision has been significant. This case 

presented several difficult and complex issues for the District 

Court to resolve. In a series of particularly well-reasoned 

opinions, the District Court handled these issues thoroughly 

and thoughtfully, and I would affirm. I believe the majority 

misreads the statute, the relevant precedent, and Congress’ 

intent.