542 F. 2d 757 - Wiren v. Eide

On his return from Canada in February, 1972, appellant Wiren and the three passengers in his 1970 Volkswagen were stopped and searched at the Blaine, Washington, border station. When a body search of one of the passengers revealed a small quantity of hashish, customs agents seized Wiren's car as a vehicle used to transport contraband into the United States.1 Immediately thereafter, Wiren claiming he had no knowledge of the presence of hashish petitioned the Secretary of the Treasury under 19 U.S.C. § 1618 for a remission or mitigation of the impending forfeiture of his car.2 That petition was denied, as was a subsequent appeal to the Bureau of Customs.

In November, 1972, after making an informal telephone inquiry, Wiren received by unregistered mail a letter informing him of the government's intention to forfeit the vehicle which it had appraised, pursuant to 19 U.S.C. § 1606, at less than $2500. He then filed a claim in accordance with the provisions of 19 U.S.C. § 1608, but did not post the requisite $250 bond because, as he now alleges, he was indigent at the time. However, there being no statutory procedure for Wiren to call this indigent condition to the attention of the Bureau of Customs and no procedure for him to halt the summary forfeiture mandated by 19 U.S.C. § 1609, Wiren filed this action along with a motion to proceed in forma pauperis and an affidavit of poverty. He sought a determination of the constitutionality of the notice, bond, and burden-of-proof provisions contained in the federal statutory forfeiture scheme, a hearing on the merits of his claim that the seizure and impending forfeiture of his car are unconstitutional, and the return of his car together with damages.3 Appellees agreed to stay forfeiture proceedings pending disposition of this action.

The district court granted appellees' motion to dismiss, although it is uncertain from that order whether the dismissal was predicated on jurisdictional grounds or on the merits. We are clear that jurisdiction did exist and that Wiren's procedural claims entitle him to a hearing on the merits of his substantive claim. We therefore remand the matter for a clear disposition on the merits of the substantive claim.

The district court had subject matter jurisdiction of this action. Insofar as Wiren's claim is one for money damages not exceeding $10,000 in amount, the district court was empowered to reach the merits of that claim by the Tucker Act, 28 U.S.C. § 1346(a)(2). Simons v. United States, 497 F.2d 1046, 1049-1050 (9th Cir. 1974); Wells v. United States, 280 F.2d 275, 277 (9th Cir. 1960); Carriso, Inc. v. United States, 106 F.2d 707, 712 (9th Cir. 1939). See also Bramble v. Richardson, 498 F.2d 968, 970 (10th Cir. 1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656 (1974); Pasha v. United States, 484 F.2d 630, 632-633 (7th Cir. 1973); United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882, 884-885 (6th Cir. 1973); Menkarell v. Bureau of Narcotics, 463 F.2d 88, 90 (3d Cir. 1972); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-1357 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 996-998 (S.D.N.Y. 1969); and cases therein cited.

Similarly, § 10 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, also conferred subject matter jurisdiction on the district court. Despite a split">split in the circuits on the question, see, e. g., Sanders v. Weinberger, 522 F.2d 1167, 1169-1170 (7th Cir. 1975), this court has repeatedly taken the position that § 10 of the APA embodies an independent grant of subject matter jurisdiction to review agency action, irrespective of the amount in controversy, unless the questioned action is committed by law to the discretion of the agency or there is clear and convincing evidence of congressional intent to preclude review expressed in the governing statute or its legislative history. See Proietti v. Levi, 530 F.2d 836, 838 (9th Cir. 1976); Rothman v. Hospital Service of Southern California, 510 F.2d 956, 958-959 (9th Cir. 1975); Brandt v. Hickel, 427 F.2d 53, 55-56 n.2 (9th Cir. 1970); State of Washington v. Udall, 417 F.2d 1310, 1319-1320 (9th Cir. 1969); Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). See also Strickland v. Morton, 519 F.2d 467, 468 (9th Cir. 1975); Ness Investment Corp. v. U. S. Department of Agriculture, Forest Service, 512 F.2d 706, 715 (9th Cir. 1975); C. Byse and J. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 326-331 (1967); K. Davis, Administrative Law Treaties § 23.02 (Supp.1970). While the remission or mitigation of lawful seizures and forfeitures is a matter committed to agency discretion, see 19 U.S.C. §§ 1613 and 1618,4 the determination of the propriety of the seizures and forfeitures themselves is not. See Simons, supra, 497 F.2d at 1049. We think it apparent that subject matter jurisdiction is additionally furnished by § 10 of the APA.5

Turning now to Wiren's procedural contentions, we note that his claim of entitlement to pre-seizure notice and opportunity for a hearing was resolved against him in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There the Court held that the absence of pre-seizure notice and the opportunity for a hearing in the context of forfeiture proceedings is not a denial of due process; the seizure of property for purposes of forfeiture is an "extraordinary situation" justifying postponement of notice and hearing requirements. 416 U.S. at 676-680, 94 S.Ct. 2080.6

Wiren nevertheless contends that the post-seizure notice provision contained in 19 U.S.C. § 1607 providing solely for notice by publication violates due process because it prescribes a method of notice not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

We are sympathetic to that claim. At least two federal courts dealing with the question have ruled that the notice by publication prescribed by § 1607 is inadequate to afford due process with respect to persons such as registered owners of seized vehicles whose identities and addresses are known or easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. Menkarell v. Bureau of Narcotics, 463 F.2d 88, 93-95 (3d Cir. 1972); Jaekel v. United States, 304 F.Supp. 993, 998-999 (S.D.N.Y.1969). See also Robinson v. Hanrahan, 409 U.S. 38, 39-40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972). Cf. Calero-Toledo, supra, 416 U.S. at 680 n.15, 94 S.Ct. 2080.

However, we conclude on balance that Wiren's receipt of actual notice deprives him of standing to raise the claim and therefore do not reach it. Having received such notice, Wiren has clearly been accorded due process in the application of the statute as to him personally. The essence of his claim is therefore that the statutory notice procedure is inadequate under the fifth amendment with respect to supposed third parties who receive no actual notice of the seizure and impending forfeiture of their property. The law governing the standing of litigants to assert constitutional claims of third parties not before the court is anything but clear.7 However, we are doubtful that Wiren has a sufficient interest in challenging the statute's notice provision to satisfy the "case or controversy" requirement of Article III of the Constitution. The Court has expressed concern lest the standards of that requirement become blurred, see Eisenstadt v. Baird, 405 U.S. 438, 443 n.4, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and here we think that Wiren's allegations of injury-in-fact are insufficient to sustain it. See generally Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1975).

Moreover, even if a sufficient "case or controversy" were presented with respect to the statutory notice provision, we think the Court's self-imposed rules of restraint, see United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), would be controlling. True, there does exist a line of Supreme Court authority containing language to the effect that a litigant is not deprived of his ability to challenge a statutory notice provision simply because he may have received as a matter of administrative favor or grace, extra-official or casual notice not prescribed by the statute. See Wuchter v. Pizzuti, 276 U.S. 13, 24-25, 48 S.Ct. 259, 72 L.Ed. 446 (1928); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424-425, 35 S.Ct. 625, 59 L.Ed. 1027 (1915); Central of Georgia Railway Co. v. Wright, 207 U.S. 127, 138, 28 S.Ct. 47, 52 L.Ed. 134 (1907); Security Trust and Safety Vault Co. v. Lexington, 203 U.S. 323, 333, 27 S.Ct. 87, 51 L.Ed. 204 (1906). But those cases must be read in light of the Court's subsequent pronouncements in Raines, supra, 362 U.S. at 20-24, 80 S.Ct. 519. Moreover, the existence of standing in Wuchter has been explained as being predicated on the nonseparability of application of the challenged statute there, see Sedler, supra note 6, 71 Yale L.J. at 609, while here there is clear congressional intent that the challenged statute have separable application. 19 U.S.C. § 1652. See also National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), otherwise distinguishing Wuchter. We recognize that our ruling raises a risk that the due process rights of innocent third parties may thereby be diluted, but our concern is somewhat diminished by the observation that persons who had failed to receive actual notice were nevertheless capable of vindicating their rights in Menkarell and Jaekel.

No such problem of standing exists with respect to Wiren's challenge to the statutory bond requirement. Absent a constitutional deficiency in the application of that provision here, Wiren's failure timely to post the bond after receiving valid notice of the proceedings would, under the statutory scheme, stand as a waiver of his opportunity for a hearing, thus permitting appellees to proceed with the summary forfeiture and thereby disposing of the case in its entirety. We therefore examine the merits of his claim.

Broadly stated, Wiren's contention is that the $250 bond requirement violates his rights to due process and equal protection8 under the fifth amendment; he forcefully argues that the application of that requirement here operates to deprive him of a significant property interest without according him the opportunity for a hearing solely because he is indigent. We agree.

The federal statutory forfeiture scheme uniformly accords owners of seized property valued at more than $2500 the opportunity for a judicial hearing. Under 19 U.S.C. § 1610, the forfeiture of property so valued is permitted solely by means of judicial condemnation. Non-indigent owners of property valued at less than $2500 are likewise accorded the opportunity for a judicial determination if they file a claim with the appropriate customs officer and post a $250 bond. See 19 U.S.C. § 1608, supra note 2.

However, indigent persons claiming an interest in seized property valued at less than $2500 are treated in an entirely different fashion. By force of the statute, their economic inability to post the bond deprives them of the opportunity for any hearing at all. Yet it is these persons to whom the deprivation of property is proportionately most grievous.

It is true that the bond requirement may operate to prevent the government's being deterred from pursuing a meritorious condemnation because the expense of the proceeding may well exceed the value of the property which the government seeks to condemn. See Colacicco v. United States, 143 F.2d 410, 411-412 (2d Cir. 1944) (L. Hand, J.). However, we cannot believe that Congress either intended to, or may consistently with the Constitution, make enforcement of the forfeiture laws, the primary contemporary justification of which is punishment and deterrence, see Calero-Toledo, supra, 416 U.S. at 681-682 n.19, 686, 94 S.Ct. 2080, a profitable or self-supporting operation by denying the fifth amendment rights of the poor. We can only conclude that in this case under both due process and equal protection analyses the fifth amendment prohibits the federal government from denying the opportunity for a hearing to persons whose property has been seized and is potentially subject to forfeiture solely because of their inability to post a bond.

In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Court held that due process prohibits a state from denying, solely because of inability to pay court filing and other fees, access to its divorce courts. However, in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the Court held Boddie inapplicable to a challenge to filing fee requirements by an indigent seeking a discharge in bankruptcy. And in Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), it concluded that Kras, not Boddie, governed a challenge to a state court filing fee by an indigent seeking review of agency reductions in welfare payments, where evidentiary hearings on the administrative level provided a procedure, not conditioned on payment of a fee, through which appellants could seek redress.

We think the case before us is governed by Boddie, not Kras and Ortwein. While the Court in Kras indicated that the claimant there had no constitutional right to a discharge in bankruptcy, here Wiren clearly has a right to a hearing of some sort, and a judicial hearing though perhaps not otherwise constitutionally required is the only form of hearing contemplated by the statutory scheme. In this connection, we do not consider remission or mitigation proceedings an adequate substitute; in those proceedings, the granting of relief is purely a matter of administrative grace. Once an administrative agency has seized property for purposes of forfeiture, the sole remedy of a claimant, absent a purely voluntary remission or mitigation, is a court judgment that forfeiture is inappropriate. The statutory bond requirement at least as it is applied here denies that remedy to the indigent claimant. Moreover, the mere possibility that such a claimant may have the perseverance and insight to commence a collateral action in forma pauperis, as Wiren did here, coupled with the more remote possibility that the agency may voluntarily suspend forfeiture proceedings pending disposition of that action, also strikes us as inadequate. That procedure is complicated, burdensome, and as the case before us amply demonstrates time-consuming, neither anticipated by the statutory scheme nor adequate to insure protection of an indigent claimant's rights. Turning to the question left unanswered by Judge Hand in Colacicco, supra, 143 F.2d at 411, 412, we reject the proposition that the forma pauperis provisions of 28 U.S.C. § 1915(a) afford an indigent claimant a means of obtaining relief from the bond requirement. That section applies solely to court proceedings, see Boyden v. Commissioner of Patents, 142 U.S.App.D.C. 351, 441 F.2d 1041, 1044 (1971), cert. denied, 404 U.S. 842, 92 S.Ct. 139, 30 L.Ed.2d 77 (1971); cf. Kras, supra, 409 U.S. at 439-440, 93 S.Ct. 631, while here under the statute a failure to post bond mandates summary administrative forfeiture and the forbearance of court proceedings in which the provisions of § 1915 might be applied.

Having determined that the instant application of the bond requirement operated unconstitutionally to deprive Wiren of the opportunity for a hearing, we might in other circumstances return the cause to the district court with directions to order appellees to commence the judicial condemnation action contemplated by the statute. Here, however, that circuitous procedural route serves no purpose save additional delay. Wiren is entitled to a hearing on the merits of his substantive claim; since he has raised it in the court below, we see no reason why the district court should not now consider and clearly dispose of it.9

Since, as Judge Koelsch amply demonstrates, the district court had jurisdiction under either the Tucker Act or under the Administrative Procedure Act to hear this action, I do not reach the issue of whether it also had jurisdiction under the mandamus statute. I, therefore, express no view on the question of whether that statute would provide an independent jurisdictional base for this suit.

It is settled that the Tucker Act authorizes a judgment for money damages only and if a complaint intermingles a claim for a money judgment with the demand for equitable relief, it is beyond the pale of the Act. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). The reason is that the jurisdiction of the district court is concurrent with that of the Court of Claims and the Court of Claims has no power to grant equitable relief. Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 571 (1962). There, Justice Harlan in speaking to the limited jurisdiction of the Court of Claims concurrent with the district court under the Act made it clear that from the very beginning, the Court of Claims had jurisdiction only to award damages, not specific relief. Id. at 557, 82 S.Ct. 1459. With reference to the jurisdiction of the respective courts, we quote from Richardson v. Morris, supra.

"The Tucker Act plainly gives district courts jurisdiction over claims against the United States for money damages of less than $10,000 that are 'founded . . . upon the Constitution.' But the Act has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States. See United States v. Jones, 131 U.S. 1, (9 S.Ct. 669, 33 L.Ed. 90) (1889). The reason for the distinction flows from the fact that the Court of Claims has no power to grant equitable relief, see Glidden Co. v. Zdanok, 370 U.S. 530, 557, (82 S.Ct. 1459, 1476, 8 L.Ed.2d 671) (1962), . . . and the jurisdiction of the district courts under the Act was expressly made 'concurrent with the Court of Claims.' " Id. 409 U.S. at 465-466, 93 S.Ct. at 630.

Another Supreme Court case speaking to the limited jurisdiction of the Court of Claims, where the demand for relief was for other than money damages, is United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). There the Court in addressing itself to the claim for relief other than money damages said: ". . . This (the claim) is essentially equitable relief of a kind that the Court of Claims has held throughout its history, up to the time this present case was decided, that it does not have the power to grant." Id. at 3, 89 S.Ct. at 1502.

A recent expression of the Supreme Court on the subject is Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975), rev'g 370 F.Supp. 312 (D.Vt.1974), in which the Supreme Court, in substance, held that the Tucker Act is not a proper jurisdictional vehicle in which to travel to injunctive or declaratory relief under a challenge to the constitutionality of various provisions of the Customs Laws, including § 1608.1 Here, in addition to a money judgment, the appellant seeks injunctive relief against the enforcement of the forfeiture statute, a declaratory judgment that he is entitled to proceed under the Administrative Procedure Act, and a writ of mandamus directing the officials to return the automobile.

A more recent Supreme Court case, United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), is closely in point. There, the claimant argued that ". . . the Tucker Act fundamentally waives sovereign immunity with respect to any claim invoking a constitutional provision or a federal statute or regulation, and makes available any and all generally accepted and important forms of redress, including money damages. It is said that the Government has confused two very different issues, namely, whether there has been a waiver of sovereignty and whether a substantive right has been created, and it is claimed that where there has been a violation of a substantive right, the Tucker Act waives sovereign immunity as to all measures necessary to redress that violation." (Page 400, 96 S.Ct. page 954). (Emphasis supplied).

In answering this argument, the Supreme Court stressed that the Tucker Act was merely jurisdictional and that the asserted entitlement to money damages depended upon whether any federal statute ". . . 'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.' " (Page 955, 96 S.Ct. page 955.) The Court went on to comment: "We are not ready to tamper with these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy. . . . In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity, and we regard as unsound the amici's argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available to redress their violation." (Page 954, 96 S.Ct. page 954.)

It is clear to me that the Congress never intended that a person could create the right for money damages under the Tucker Act by challenging the constitutionality of the very legislation which forms the basis for his claim.

The majority holds that the district court had jurisdiction to proceed under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The review section of the Act, 5 U.S.C. § 701(a), specifically exempts: (1) statutes which preclude judicial reviews, and (2) agency action which is committed to agency discretion by law. The exercise of discretion in denying a petition for remission or forfeiture is not reviewable. United States v. One 1961 Cadillac, 337 F.2d 730, 732 (C.A.6, 1964). Additionally, the Administrative Procedure Act is remedial in character and does not, in itself, create jurisdiction. Subject matter jurisdiction is essential to application of the Act. Zimmerman v. United States, 422 F.2d 326 (C.A.3, 1970), cert. denied 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565.2

True enough, the Supreme Court has not spoken definitively on the subject. In one instance, Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), in speaking of "general grants of jurisdiction". Id. at 380, 82 S.Ct. at 795, it would seem that Justice Brennan was speaking of something other than pure jurisdiction when he mentioned the Declaratory Judgments Act, in the same breath as the Administrative Procedure Act. It is well settled that the Declaratory Judgments Act does not, in itself, confer jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). To the same effect, see Lee v. Thornton, supra.

Moreover, since under the provisions of 19 U.S.C. § 1618 absolute discretion is lodged in the agency, judicial review is not available to appellant under 5 U.S.C. § 701(a). Action on Safety & Health v. F. T. C., 162 U.S.App.D.C. 215, 498 F.2d 757, 760-761 (C.A.D.C.1974).

The Ninth Circuit cases cited by the majority are not in point. The jurisdiction found in each of those cases was by way of review from action taken in an agency. Here, the appellant has refused to follow the procedure outlined in either 19 U.S.C. §§ 1608 or 1618 and the Secretary has taken no action under those statutes. (Emphasis supplied). The appellant, in lieu of following the provisions of the statute, has challenged the constitutionality of 19 U.S.C. § 1608, the latter being an integral part of the procedure outlined by the Congress to be followed by a person who desires a remission or a mitigation of the penalties provided for under § 1618.

For that matter, appellant does not claim that he has a right to a review of any action taken by the Secretary. It is his claim that the Administrative Procedure Act is an independent grant of subject matter jurisdiction under which an action can be prosecuted irrespective of action on the part of an agency. I find no authority to support the majority's position on this jurisdictional claim.

Cases such as Brandt v. Hickel, 427 F.2d 53, 55 (C.A.9, 1970), and Coleman v. United States, 363 F.2d 190 (C.A.9, 1966), rev'd on other grounds 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968), holding that the Administrative Procedure Act does not permit a trial de novo is in support of my position that the Act does not create an independent ground of jurisdiction. Otherwise, the trial would be de novo, rather than by review. As late as United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432 (C.A.9, 1971), speaking to the subject, we said: " '. . . (T)he Administrative Procedure Act does not permit a trial de novo of administrative decisions.' " It is fundamental that if a court is not entitled to receive evidence, it is not a court of original jurisdiction.

Under the provisions of the remission statute, 19 U.S.C. § 1618, absolute discretion is vested in the Secretary of the Treasury. Because appellant did not attempt to file a bond under § 1608, he is in no position to argue that he is entitled to an administrative review of non-existent agency action under that statute. He took no action whatsoever under § 1618.

Again, I disagree with my brethren. Here, we are concerned with fast moving vehicles crossing out international boundary lines. We cannot close our eyes to the thousands of customs violations committed annually on both our Mexican and Canadian borders. The lodging of some discretion in the Customs Officials as to the seizure of the vehicle and the amount, if any, of the bond is absolutely essential to proper administration. The general attitude and conduct of one driver might be entirely different from that of another and this should call into play a wide discretion on the part of the official in charge.

The majority completely overlooks the known fact that the overland transportation of contraband into the United States is by the use of "junkies" or worn-out motor vehicles seldom of a value sufficient to justify the expense of a formal condemnation proceeding. To avoid this fact, the majority say: "However, we cannot believe that Congress either intended to, or may consistently with the Constitution, make enforcement of the forfeiture laws, the primary contemporary justification of which is punishment and deterrence . . . ." Id. at ----. In making this statement, the majority neglects to comment on the recognized distinction between the seizure of contraband and vehicles used in its movement and the seizure of other property subject to ownership. The legislation does not, as urged by the majority, deny the Fifth Amendment rights of the "poor." If the "poor" elect to violate our Customs Laws and in doing so use valueless types of vehicles, the values of which will not reimburse the government for its formal condemnation expenses, they should be compelled to comply with existing law, the same as others. The poor and the rich are governed by the same Constitution.

I believed our factual background is governed by United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), and Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), cases which severely limited the overall effect of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the case upon which the majority relies.

In Kras, it is emphasized that the marital relationship and the associated interests that surrounded the establishment and dissolution of the marriage in Boddie had no connection whatsoever with the area of economics and social welfare involved in special proceedings such as in bankruptcy. That being so, the Court reasoned that the applicable standard in measuring the propriety of the Congressional classification, is that of rational justification. Beyond question, the enforcement of our Customs Laws should be classified in the area of economics and our general social welfare, rather than in the donnybrook of the Boddie marital relationship where one party was desperately attempting to obtain a divorce from the other.

Ortwein v. Schwab, supra, is even more closely in point. There, the Supreme Court recognized that the pending litigation involving welfare payments was ". . . in the area of economics and social welfare." Id. 410 U.S. at 660, 93 S.Ct. at 1175, and that since no suspect classification, such as race, nationality or alienage was present, that the applicable standard was that of rational justification as applied in Kras. In Kras, as in Ortwein, the rational justification for the payment of fees was that it would produce revenue to assist in offsetting the expenses of administering the system. Clearly, the purpose of requiring the bond under the challenged legislation in the case before us was to make certain there would be a fund available to assist in the payment of the expenses of seizure of the property and attempted confiscation. Surely, it is not beyond our power to judicially notice that a forfeiture proceeding, if resisted by a claimant, could amount to well in excess of $2,500.00. Certainly, there is no suspect classification in the present case.

I would hold that the legislation under attack is an integral part of the laws protecting our borders against smuggling and has a constitutionally rational basis.

I would affirm the judgment of the lower court.