PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

DONALD JAMAL WILSON,

Claimant-Appellant,  No. 11-1821 and

$13,963.00, MORE OR LESS, IN

UNITED STATES CURRENCY

(Donald Jamal Wilson, Criminal

No. 3:07-0034),

Defendant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert C. Chambers, District Judge.

(3:07-cv-00470)

Argued: September 18, 2012

Decided: November 8, 2012

Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Shedd and Judge Davis joined.
COUNSEL

ARGUED: Richard Donald Dietz, KILPATRICK TOWNSEND & STOCKTON, LLP, Winston-Salem, North Carolina,

for Appellant. Betty Adkins Pullin, OFFICE OF THE

UNITED STATES ATTORNEY, Charleston, West Virginia,

for Appellee. ON BRIEF: Adam H. Charnes, Thurston H.

Webb, KILPATRICK TOWNSEND & STOCKTON, LLP,

Winston-Salem, North Carolina, for Appellant. R. Booth

Goodwin II, United States Attorney, Charleston, West Virginia, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

When the government commenced a civil forfeiture proceeding against $13,963 seized from Donald Wilson in October 2006, based on the money’s connection with Wilson’s

drug-trafficking activity, Wilson defended the action, claiming, without substantial support, that the money came from

legitimate sources of income. The district court rejected the

defense and entered a judgment of forfeiture. And we

affirmed. See United States v. $13,963, More or Less, in U.S.

Currency, 382 F. App’x 268 (4th Cir. 2010) (per curiam).

Wilson thereafter filed a motion in the district court, under

Federal Rule of Civil Procedure 60(b)(4), to set aside the forfeiture judgment as void because the government had filed its

civil forfeiture complaint beyond the 90-day time limit

imposed on it by 18 U.S.C. § 983(a)(3). Wilson contended

that the time limit was jurisdictional and therefore was not

forfeited by his failure to raise it. The district court agreed

with Wilson that the government had filed its forfeiture complaint late, but it denied Wilson’s motion because it concluded

that the time limit was a statute of limitations that Wilson had

to raise, and not a jurisdictional condition.

2 UNITED STATES v. WILSON
We agree with the district court. While the time limit

imposed on the government by § 983(a)(3) is mandatory, it is

not jurisdictional, and because Wilson did not raise this

defense during the course of the forfeiture action, he forfeited

it. Accordingly, we affirm the district court’s order denying

Wilson’s Rule 60(b)(4) motion to vacate the forfeiture judgment.

I

On October 27, 2006, when law enforcement officers

stopped Wilson in his automobile to arrest him pursuant to

three warrants charging him with drug trafficking offenses,

they found $13,963 on his person and seized it. Thereafter,

the Drug Enforcement Administration commenced an administrative forfeiture action against the seized money. When

Wilson filed a claim for return of the money, his filing triggered a 90-day period during which the government was

required, under 18 U.S.C. § 983(a)(3), to file a formal complaint in the district court for civil forfeiture or to take other

specified action in pursuit of forfeiture. The government did

file such a complaint, albeit 20 days late, and the clerk of

court issued a warrant for the arrest of the currency in rem,

which the U.S. Marshal duly executed, thereby bringing the

res into judicial custody.

Wilson appeared pro se in the civil forfeiture proceeding

and asserted a claim that the $13,963 came from legitimate

sources of income. The district court, however, concluded that

the evidence indisputably established that the money was substantially connected to Wilson’s drug-trafficking activities.

Accordingly, it entered a summary judgment of forfeiture on

October 13, 2009. After affirming the judgment, we issued

our mandate on September 1, 2010.

Roughly two weeks later, Wilson, again appearing pro se,

filed a motion under Federal Rule of Civil Procedure 60(b)(4),

which authorizes a court to give relief from a judgment that

UNITED STATES v. WILSON 3
is void. Wilson noted that the government had filed its forfeiture complaint late and argued that because the time limit was

jurisdictional, the court lacked authority to enter the forfeiture

judgment.

The government conceded that it had missed, by 20 days,

the deadline imposed by § 983(a)(3). The government disputed, however, that the deadline was jurisdictional, arguing

that the provision was instead a statute of limitations that Wilson had failed to raise and therefore had forfeited.

The district court agreed with the government, holding that

§ 983(a)(3)’s 90-day deadline was not jurisdictional and denying Wilson’s Rule 60(b)(4) motion by order dated June 3,

2011. In reaching its conclusion, the court emphasized the

absence of express jurisdictional language in § 983(a)(3); the

existence of other statutory provisions conferring federal

jurisdiction over forfeiture actions; and the absence of a line

of cases that had treated § 983(a)(3) as a jurisdictional condition.

From the district court’s order denying his motion to set

aside the forfeiture judgment as void, Wilson timely filed this

appeal. We appointed counsel to represent him.

II

While it is conceded that the government failed to file its

civil forfeiture complaint within 90 days after Wilson filed his

administrative claim for return of the $13,963, Wilson at no

time during the course of the proceedings challenged the government’s tardiness.

In these circumstances, we conclude that unless compliance

with the 90-day filing requirement imposed by § 983(a)(3)

was a condition of the district court’s subject matter jurisdiction, Wilson forfeited any objection based on the government’s late filing. See Eriline Co. v. Johnson, 440 F.3d 648,

4 UNITED STATES v. WILSON
654 (4th Cir. 2006) ("As a defense waivable by the inaction

of a party, the statute of limitations bears the hallmarks of our

adversarial system of justice, a system in which the parties are

obliged to present facts and legal arguments before a neutral

and relatively passive decision-maker"); Peterson v. Air Line

Pilots Ass’n Int’l, 759 F.2d 1161, 1164 (4th Cir. 1985) ("It is

well settled that the defense of limitations is waived unless

asserted promptly by way of answer or motion"). But if the

90-day requirement is a condition of the district court’s subject matter jurisdiction, then Wilson would be entitled to an

order vacating the judgment of forfeiture. See Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012) ("Subject-matter jurisdiction can never be waived or forfeited. The objections may be

resurrected at any point in the litigation").

Wilson advances several arguments in support of his contention that § 983(a)(3) is jurisdictional. He argues that

because the 90-day deadline for the government’s action is

fixed by statute and not by rule and because that statute mandates the release of the seized assets if the deadline is not met,

Congress manifested its intent that the 90-day requirement be

"a mandatory, jurisdictional deadline." He argues further that

the legislative history supports his interpretation, as Congress

indicated that a purpose in imposing the 90-day time limit on

the government was to protect unrepresented property owners,

such as him. He argues that failing to interpret the 90-day

deadline as jurisdictional would give the government an

incentive to file forfeiture actions even when late, thus undermining the statute’s purpose of providing protection to property owners.

The government contends that the statutory language gives

no indication that the 90-day requirement is jurisdictional. To

the contrary, it argues, the provision authorizes extensions

after the 90-day period, belying any notion that the 90-day

requirement is jurisdictional. Finally, it claims that allowing

the forfeiture to stand would not frustrate § 983(a)(3)’s purUNITED STATES v. WILSON 5
pose because here the short delay was neither excessive nor

in bad faith and because Wilson received his day in court.

We are thus presented with the straightforward question of

whether Congress, in imposing a 90-day deadline on the government for filing civil forfeiture actions, created a condition

of the district court’s subject matter jurisdiction.

Subject matter jurisdiction defines a court’s power to adjudicate cases or controversies—its adjudicatory authority—and

without it, a court can only decide that it does not have jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998). Because jurisdictional limits define the very

foundation of judicial authority, subject matter jurisdiction

must, when questioned, be decided before any other matter.

See id. at 93-95. Indeed, "[w]hen a requirement goes to

subject-matter jurisdiction, courts are obligated to consider

sua sponte issues that the parties have disclaimed or have not

presented." Gonzalez, 132 S. Ct. at 648. For these reasons, a

lack of subject matter jurisdiction cannot be waived or forfeited, and no other matter can be decided without subject

matter jurisdiction. These principles are fundamental and

important.

While these principles are fundamental and important,

however, the determination of subject matter jurisdiction is

often rendered difficult by its close proximity to determinations of whether statutorily specified ingredients of a cause of

action have been met or whether claims-processing rules have

been followed. See Reed Elsevier, Inc. v. Muchnick, 130 S.

Ct. 1237, 1243-44 (2010). Thus, the Supreme Court has, in

the last decade, frequently addressed whether an element of

a claim or a claims-processing rule is "jurisdictional." See,

e.g., Gonzalez, 132 S. Ct. 641; Henderson ex rel. Henderson

v. Shinseki, 131 S. Ct. 1197 (2011); Dolan v. United States,

130 S. Ct. 2533 (2010); Reed Elsevier, 130 S. Ct. 1237; Union

Pac. R.R. v. Bhd. of Locomotive Eng’rs & Trainmen Gen.

Committee of Adjustment, Cent. Region, 558 U.S. 67 (2009);

6 UNITED STATES v. WILSON
John R. Sand & Gravel Co. v. United States, 552 U.S. 130

(2008); Bowles v. Russell, 551 U.S. 205 (2007); Arbaugh v.

Y & H Corp., 546 U.S. 500 (2006); Eberhart v. United States,

546 U.S. 12 (2005) (per curiam); Kontrick v. Ryan, 540 U.S.

443 (2004).

In the past, the Court has referred to nonjurisdictional procedural requirements as claims-processing rules, which do not

"limit a court’s jurisdiction, but rather regulate the timing of

motions or claims brought before the court." Dolan, 130 S.

Ct. at 2538; see also Kontrick, 540 U.S. at 454-55. The label

"claims-processing rule," however, does not have independent

legal significance in determining whether the requirement is

jurisdictional because "Congress is free to attach the conditions that go with the jurisdictional label to a rule that [courts]

would prefer to call a claim-processing rule." Henderson, 131

S. Ct. at 1203; see also Gonzalez, 132 S. Ct. at 665 (Scalia,

J., dissenting) ("The proper dichotomy is between claims processing rules that are jurisdictional, and those that are not").

Thus, Congress can condition jurisdiction on compliance with

a claims-processing rule, so long as it provides a "clear indication" that the rule is jurisdictional. Henderson, 131 S. Ct. at

1203; see also Gonzalez, 132 S. Ct. at 649 (describing application of "clear-statement principle").

In determining whether Congress has clearly expressed its

intent in this respect, we examine whether the provision

"speak[s] in jurisdictional terms or refer[s] in any way to the

jurisdiction of the . . . courts." Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 394 (1982) (quoted in Henderson, 131 S.

Ct. at 1204; Arbaugh, 546 U.S. at 515); Gonzalez, 132 S. Ct.

at 649 (quoting Arbaugh, 546 U.S. at 515). Even so, the Court

has noted that Congress "need not use magic words in order

to speak clearly on this point." Henderson, 131 S. Ct. at 1203.

Rather, "context, including [the Supreme] Court’s interpretation of similar provisions in many years past, is relevant to

whether a statute ranks a requirement as jurisdictional." Reed

Elsevier, 130 S. Ct. at 1248. Indeed, "[w]hen a long line of

UNITED STATES v. WILSON 7
[the Supreme] Court’s decisions left undisturbed by Congress

has treated a similar requirement as ‘jurisdictional,’ [courts]

will presume that Congress intended to follow that course."

Henderson, 131 S. Ct. at 1203 (internal quotation marks and

citations omitted).

We begin the analysis of the 90-day requirement before us

by taking into account its statutory context. At a general level,

federal district courts are given original jurisdiction of all civil

actions brought by the United States, "[e]xcept as otherwise

provided by act of Congress." 28 U.S.C. § 1345. And, more

specifically, Congress has granted United States district courts

"original jurisdiction exclusive of the courts of the States, of

any action or proceeding for the recovery or enforcement of

any fine, penalty, or forfeiture . . . incurred under any act of

Congress." Id. § 1355(a) (emphasis added). One such act is

the Controlled Substances Act, which includes a provision

specifying that money used to buy illegal drugs or that represents the proceeds from their sale "shall be subject to forfeiture to the United States." 21 U.S.C. § 881(a)(6). This

provision contemplates that such forfeitures may be accomplished through either criminal or civil proceedings. See id.

§ 881(e)(1). And when the United States elects to proceed

civilly, the procedural rules provided by 18 U.S.C. § 983 govern the proceeding.

Section 983, entitled "General rules for civil forfeiture proceedings," was enacted in 2000 as part of the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat.

202. This section requires, for example, that when notice is

required to be given to interested parties, the government

must generally send the notice within 60 days of seizing the

property. 18 U.S.C. § 983(a)(1)(A)(i). It also establishes how

an individual who receives such a notice or any other person

claiming property seized in an administrative forfeiture proceeding may file a claim to the property. Id. § 983(a)(2). And

it provides that once an individual makes such a claim, the

government must file its civil forfeiture complaint in court or

8 UNITED STATES v. WILSON
take other specified action in pursuing forfeiture within 90

days. Specifically, that provision states with respect to civil

forfeiture:

Not later than 90 days after a claim has been filed,

the Government shall file a complaint for forfeiture

in the manner set forth in the Supplemental Rules for

Certain Admiralty and Maritime Claims or return the

property pending the filing of a complaint, except

that a court in the district in which the complaint will

be filed may extend the period for filing a complaint

for good cause shown or upon agreement of the parties.

Id. § 983(a)(3)(A) (emphasis added). 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. § 983(a)(3)(B).

In this statutory context, 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. But, as already noted, procedural rules can be made

conditions of subject matter jurisdiction if Congress clearly so

indicates.

In this case, we conclude, based on several considerations,

that Congress has not indicated, clearly or otherwise, that the

procedural rule of § 983(a)(3) is a condition of jurisdiction.

First, § 983(a)(3)’s language does not suggest, let alone

clearly indicate, that district courts lack adjudicatory authority

over a civil forfeiture complaint that was filed late by the government. To be sure, § 983(a)(3) does contain a mandatory

UNITED STATES v. WILSON 9
limitation requiring the government’s prosecutor to file its

complaint not later than 90 days after a claim has been filed.

But that limitation is imposed on the Executive Branch of government, not as a condition of the court’s authority. Stated

otherwise, the provision "does not speak in jurisdictional

terms or refer in any way to the jurisdiction of the district

courts." Zipes, 455 U.S. at 394.

Second, the fact that the provision allows "a court in the

district in which the complaint will be filed [to] extend the

period for filing a complaint for good cause shown or upon

agreement of the parties," 18 U.S.C. § 983(a)(3)(A), 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.

Third, § 983(a)(3) provides that if the government fails to

file its complaint or take other specified action within the 90-

day period, the government must release the property and

loses any right to pursue it further. While Congress undertook

to provide a sanction for the failure to comply with its terms,

in doing so, it did not provide or suggest that the court loses

subject matter jurisdiction as a result of noncompliance.

Fourth and finally, we find it significant that the 90-day

deadline "is located in a provision ‘separate’ from those granting federal courts subject-matter jurisdiction over" forfeiture

actions. Reed Elsevier, 130 S. Ct. at 1245-46. As we have

noted, the federal district courts are explicitly given subject

matter jurisdiction over civil forfeiture actions by 28 U.S.C.

§ 1345, which confers jurisdiction over civil actions brought

by the United States, and by 28 U.S.C. § 1355(a), which

grants jurisdiction more specifically over civil forfeiture

actions. We are unwilling to conclude that Congress limited

those jurisdictional grants when it provided rules in

§ 983(a)(3), especially when that provision does not "refer in

any way to the jurisdiction of the district courts." Zipes, 455

U.S. at 394.

10 UNITED STATES v. WILSON
To be sure, the lack of clear jurisdictional language does

not conclusively end the analysis. Congress’ intent can be

inferred from the existence of a "long line" of Supreme Court

decisions "left undisturbed by Congress" that "treated a similar requirement as ‘jurisdictional.’" Henderson, 131 S. Ct. at

1203 (internal quotation marks and citation omitted). For

example, the Court in Bowles relied on the fact that it had

"long and repeatedly held that the time limits for filing a

notice of appeal are jurisdictional in nature." 551 U.S. at 206;

see also Reed Elsevier, 130 S. Ct. at 1248 ("The statutory limitation in Bowles was of a type that we had long held did

‘speak in jurisdictional terms’ even absent a ‘jurisdictional’

label") (emphasis in original). Similarly, the Court relied on

stare decisis grounds in John R. Sand & Gravel Co. to conclude that the special statute of limitations governing the

Court of Federal Claims is jurisdictional. 552 U.S. at 138-39.

But there is no similar line of precedents with respect to

§ 983(a)(3). Absent such precedents, the applicable background principles against which Congress enacted this special

limitations period for certain civil forfeiture complaints

include the general principle that "the law typically treats a

limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to

rules of forfeiture and waiver." John R. Sand & Gravel Co.,

552 U.S. at 133.

Relying on the language in Bowles that "[j]urisdictional

treatment of statutory time limits makes good sense," 551

U.S. at 212, Wilson argues that it is jurisdictionally significant

that the 90-day deadline is contained within a statute, as

opposed to a court-promulgated rule. But he makes too much

of this. The Supreme Court has clarified its Bowles language,

noting that Bowles did not "hold that all statutory conditions

imposing a time limit should be considered jurisdictional."

Reed Elsevier, 130 S. Ct. at 1247. And, as we noted above,

because the statutory time limit does not clearly indicate that

it is jurisdictional, Wilson would at least have to advance a

UNITED STATES v. WILSON 11
"long line" of precedents so finding, along with Congress’

inaction.

Wilson argues also that because Congress imposed such

severe consequences for failure to meet the 90-day deadline,

it manifested an intent to make the deadline jurisdictional. But

this argument provides Wilson with little support. The burdens for failing to meet the deadline are imposed on the government, not the court. If Congress had intended that the

failure to meet the 90-day deadline be jurisdictional, it surely

could have so indicated by stating that the court would lose

jurisdiction if the deadline were not met. Indeed, the fact that

Congress elected to include a specific sanction against the

government without expressing any limitation on the district

court’s adjudicatory authority suggests that the provision

should not be treated as jurisdictional.

Finally, Wilson argues that the statutory purpose of protecting property owners is best served if the 90-day deadline is

construed to be jurisdictional. He maintains that this is especially so because many property owners contesting a forfeiture cannot afford representation. Because of this fact, he

argues, Congress made the 90-day deadline jurisdictional so

that the deadline would be given effect regardless of whether

the property owner had counsel advising him to raise it. The

statutory language, however, does not support Wilson’s argument. The statute imposes a 90-day deadline on the government and provides the sanction that the property will be

released if the government does not meet its deadline. But

Congress did not address the power of the court. Moreover,

Congress appears to have addressed Wilson’s concern regarding the obstacles facing pro se property owners by authorizing

district courts to appoint counsel in many forfeiture cases. See

18 U.S.C. § 983(b).

At bottom, we conclude that the 90-day deadline imposed

in § 983(a)(3) is not jurisdictional and that therefore Wilson

12 UNITED STATES v. WILSON
forfeited his limitations argument by not raising it during the

forfeiture proceedings.

III

In addition to his contention that § 983(a)(3)’s 90-day time

limit is jurisdictional, Wilson contends that the district court

lacked in rem jurisdiction over the seized currency because

when the government failed to file a complaint within 90

days, the government’s arrest of the property became illegal,

precluding the court from lawfully taking custody of the currency. He argues that the district court simply did not have a

res before it to forfeit. While Wilson is correct that the government should have released the property under § 983(a)(3),

it does not follow that the government’s failure to do so

immunized the property from arrest by the district court and

from subsequent forfeiture. See INS v. Lopez-Mendoza, 468

U.S. 1032, 1039-40 (1984) (noting that, just as an unlawful

arrest does not result in the suppression of the "body" of the

defendant in a criminal proceeding, the unlawful seizure of

property does not result in the suppression of that property in

a forfeiture proceeding); United States v. Martin, 662 F.3d

301, 306 (4th Cir. 2011) ("The illegal seizure of property does

not immunize that property from forfeiture as long as the government can sustain the forfeiture claim with independent evidence").

IV

Finally, Wilson contends that we should, at the very least,

remand this case to the district court to enable him to press a

claim under Federal Rule of Civil Procedure 60(b)(6), the

catchall provision of Rule 60(b) that authorizes relief for any

reason "that justifies relief," so long as the reason is "extraordinary." See Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir.

2011) (en banc). He argues that because he was acting pro se,

the district court was required to construe his Rule 60(b)(4)

motion as including a Rule 60(b)(6) motion claiming that the

UNITED STATES v. WILSON 13
government’s failure to comply with § 983(a)(3) entitles him,

as a matter of justice, to have the forfeiture judgment against

him vacated. This argument, however, overvalues Wilson’s

pro se status. Although courts must liberally construe the

claims of pro se litigants, Boag v. MacDougall, 454 U.S. 364

(1982) (per curiam), "the ‘special judicial solicitude’ with

which a district court should view . . . pro se [filings] does not

transform the court into an advocate," Weller v. Dep’t of

Social Servs., 901 F.2d 387, 391 (4th Cir. 1990). Moreover,

it is far from clear that Wilson’s situation satisfies Rule

60(b)(6)’s extraordinary circumstances standard. In any event,

we cannot conclude that the district court abused its discretion

by failing to construe Wilson’s motion under Rule 60(b)(4) to

include a motion under Rule 60(b)(6) that should be granted.

Accordingly, the district court’s order of June 3, 2011, is

AFFIRMED.

14 UNITED STATES v. WILSON