US v. Clymore, 00-2160

• Decision Date: 13 April 2001
• Docket Number: No. 00-2160,00-2160
• Citation: 245 F.3d 1195
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CRAIG CLYMORE, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1195

245 F.3d 1195 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CRAIG CLYMORE, Defendant-Appellant.

No. 00-2160

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

April 13, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-96-763-JC/RLP)

Norman C. Bay, United States Attorney, Stephen R. Kotz, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Craig Clymore, pro se.

Before BRORBY, PORFILIO, and BALDOCK, Circuit Judges.

PER CURIAM.

Craig Clymore appeals for the second time from the dismissal with prejudice of his claims made pursuant to Federal Rule of Criminal Procedure 41(e) for return of property administratively forfeited in federal proceedings. Our jurisdiction arises under 28 U.S.C. 1291, and we reverse.¹

I. Background facts and proceedings

The factual history of this case is well documented in Clymore v. United States, 164 F.3d 569 (10th Cir. 1999), and need not be repeated here. There, in reversing summary judgment granted in favor of the government, we held that constitutionally ineffective notice voided certain DEA and United States Customs administrative forfeitures as to Mr. Clymore. Id. at 573-74. We vacated the forfeitures as to him, and because the five-year statute of limitations for filing forfeiture proceedings against Mr. Clymore had run we remanded the case for further proceedings, including a determination whether the government had any defenses to the operation of the statute of limitations. Id. at 574 ("Where obvious statute of limitations problems exist, we think the offending forfeiture should be vacated and the statute of limitations allowed to operate, subject, of course, to any available government arguments against it.").

On remand, the district court adopted the magistrate judge's report concluding that the statute of limitations should be equitably tolled from the date of the administrative forfeitures until the date this court found the forfeitures to be constitutionally defective. See R. Doc. 55 (Findings and Recommended Disposition), at 2. The court again granted summary judgment in favor of the government and dismissed Mr. Clymore's claims with prejudice.

II. Discussion

A. Whether equitable tolling is available in forfeiture actions.

The question of whether equitable tolling is legally permissible under 19 U.S.C. 1621² is one of law that we review de novo. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir. 1999). Mr. Clymore first argues that applying the doctrine of equitable tolling to allow the government to attempt a second bite of the apple after it failed to serve constitutionally adequate notice within the statutory time period is per se manifestly unjust. We disagree. It is appropriate to apply equitable tolling to any statute of limitations "where consistent with congressional intent, and called for by the facts of the case." Bowen v. City of New York, 476 U.S. 467, 479 (1986).

Mr. Clymore next argues that, because 1621 expressly provides for tolling during the absence or concealment of the property or person, see 1621(2), it is contrary to Congress's intent to judicially approve of other circumstances in which tolling may be appropriate. Again, we disagree. The statute does not state that it is inappropriate to toll the period in any other circumstance. We therefore conclude that equitable tolling is not inconsistent with congressional intent³. Cf. Bowen, 476 U.S. at 480 (finding equitable tolling appropriate when statute provided for tolling in some circumstances and the tolling at issue was "nowhere eschewed by Congress") (quotation omitted).

B. Whether the government waived equitable tolling.

Mr. Clymore argues that equitable tolling is not available to the government because it did not plead the defense until after this court voided the administrative forfeitures. We agree with the government, however, that our January 6, 1999 order (remanding the case for further proceedings and consideration of any other equitable defenses) permitted consideration of the defense. Reversal of a summary judgment simply returns the parties to their litigation status before summary judgment was granted.

C. Whether the court properly applied equitable tolling.

Mr. Clymore argues that the district court erred in applying equitable tolling under the facts of this case. Because the application of equitable doctrines rests in the sound discretion of the district court, its decision will not be disturbed on appeal absent a showing of abuse of discretion. Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th Cir. 1996).

The court found that the government's five-year statute of limitations for forfeitures had run by the time Mr. Clymore filed his Rule 41(e) motion for return of property. Mr. Clymore first argues that the district court abused its discretion in applying equitable tolling because it relied on a finding that is clearly erroneous. It is undisputed that the statute of limitations did not run until November 1996. It is also undisputed that Mr. Clymore brought his action for return of the items in June 1996, alerting the government to the fact that he had not received timely notice of the administrative forfeitures. Although Mr. Clymore filed his motion for return of property five months before the five-year statute of limitations expired, the magistrate judge stated that Mr. Clymore's motion was brought after its expiration. See R. Doc. 55, at 1. This finding formed the basis of the court's recommendation to apply equitable tolling, as shown by its reliance on United States v. $57,960.00 in United States Currency, 58 F. Supp. 2d 660 (D.S.C. 1999). Thus, the district court abused its discretion in relying on a mistake of fact on which to base equitable tolling.

Mr. Clymore next argues that, as a matter of law, the government should not be allowed to rely on equitable tolling to salvage its failure to give him notice of the forfeitures. He argues that the government knew that its notices of forfeiture were returned undelivered, that he was in federal custody, and that he had written letters inquiring about the property further alerting the government to the fact that he was unaware of the forfeitures long before the statute of limitations had run. He points out that, instead of immediately filing judicial forfeiture proceedings within the statute of limitations after it received his Rule 41(e) motion, the government chose to argue that Mr. Clymore had no standing to challenge the administrative forfeitures and that his claim was barred by laches. He argues that these facts will not form a basis for equitable tolling.

Federal courts have typically extended equitable relief only sparingly. We have [however] allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). In civil actions, this court has applied equitable tolling when the defendant's conduct rises to the level of active deception; where a plaintiff has been lulled into inaction by a defendant, and "[l]ikewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights." Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996) (action under Title VII) (quotations omitted); see also Johnson v. United States Postal Serv., 861 F.2d 1475, 1481 (10th Cir. 1988) (holding that equitable tolling may be appropriate where a petitioner has been deceived by an incorrect representation by an adversary, court, or agency).

Another situation in which equitable tolling may apply is when extraordinary circumstances make it impossible for the plaintiff to file his or her claims within the statutory period. See Hanger v. Abbott, 73 U.S. (6 Wall.) 532, 542 (1867) (finding extraordinary circumstances tolling statute of limitations where courts in southern states were closed during Civil War). Here, the government asserts that it did not immediately file judicial forfeiture proceedings between June and November 1996 because it needed time to "retrieve numerous records, some of which had been destroyed and some of which were incomplete" and because Mr. Clymore's allegations "involved seizures made by different agencies in different jurisdictions . . . [and] property had been forfeited in both federal and state administrative and judicial proceedings." Appellee's Br. at 13. This is the same "laches" argument that the district court rejected below. See R. Doc. 55, at 5. The district court made no findings regarding whether the government knew that Mr. Clymore had not been served with notice of the administrative forfeiture or whether it was reasonable for the government to fail to timely commence judicial forfeiture proceedings after it became aware that Mr. Clymore challenged the administrative forfeitures. Although it does not appear that equitable tolling would apply on the facts presented to this court, on remand, the district court should, based on undisputed facts, conduct an equitable estoppel analysis consistent with our common law.

D. The effect of a voided administrative forfeiture.

Finally, we address what proceedings on remand are appropriate when a Rule 41(e) or equitable civil motion involves property confiscated during an arrest for drug smuggling for which the defendant/claimant is later convicted, the administrative forfeiture of that property is later voided, and the statute of limitations for forfeiture proceedings has run. Mr. Clymore argues that such a situation automatically requires that instrumentalities of crime (the airplane used to transport 745 pounds of marijuana and the air-to-ground radio in question) and...