United States of America, Plaintiff-appellee, v. Juan Jose Nunez, Defendant-appellant, 5 F.3d 542 (9th Cir. 1993)

Appeal from the United States District Court for the District of Arizona; No. Misc-92-01143-RCB, Robert C. Broomfield, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before BROWNING and CANBY, Circuit Judges, and KELLEHER,^*  District Judge.

MEMORANDUM^** 

The parties are familiar with the facts and issues presented in this case and we will not repeat them here.

The district court has general equitable jurisdiction to hear a motion for return of property even where no criminal proceeding is pending; the motion will be treated as a civil equitable proceeding even if styled as a motion under Fed. R. Crim. P. 41(e). United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987). However, where the person seeking return of seized property has an adequate remedy at law, no justification exists for exercising the court's equitable jurisdiction, and the motion will not be entertained. United States v. Elias, 921 F.2d 870, 872-73 (9th Cir. 1990); United States v. United States Currency, $83,310.78, 851 F.2d 1231, 1235 (9th Cir. 1988).

Nunez could bring his due process challenges to the administrative proceedings as an action under the Tucker Act, 28 U.S.C. § 1346(a) (2), which is "an appropriate vehicle for challenging procedurally-deficient forfeitures." Onwubiko v. United States, 969 F.2d 1392, 1399 (2d Cir. 1992); see also United States v. Ten Thousand Dollars in U.S. Currency, 860 F.2d 1511, 1514 (9th Cir. 1988); Simons v. United States, 497 F.2d 1046, 1049 (9th Cir. 1974). While the Court of Claims may not entertain a claim of inadequate notice under the Fifth Amendment Due Process Clause, see Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1101 (9th Cir. 1990), the district court will hear such claims as long as they fall below $10,000, which is clearly the case here. Ten Thousand Dollars, 860 F.2d at 1514.

The Tucker Act action was an adequate remedy at law which deprived the district court of jurisdiction over Nunez's Rule 41(e) motion.

Affirmed.