requirements within a statutory regime indicates that Congress never intended a court's jurisdiction to turn on timely filing. Id; see also Zipes, 455 U.S. at 394, 102 S. Ct. at 1133; Hardin v. City Title & Escrow Co., 254 U.S. App. D.C. 370, 797 F.2d 1037, 1040 (D.C. Cir. 1986).
The following makes explicit what was implicit in Delphis Bank: because the jurisdictional grant and filing requirements are structurally separate, in the absence of any evidence of legislative intent to the contrary, this Court holds that the filing requirement of Subsection 1963(l)(2) is not jurisdictional but instead operates as a statute of limitations subject to equitable tolling. See Zipes, 455 U.S. at 392-98, 102 S. Ct. at 1131-35; Phillips v. Heine, 299 U.S. App. D.C. 359, 984 F.2d 489, 491 (D.C. Cir. 1993); Hardin, 797 F.2d at 1040.
B. EQUITABLE TOLLING UNDER 18 U.S.C. § 1963(l)(2)
Although applied sparingly, the doctrine of equitable tolling is available to a court to soften the harsh result that would obtain from the strict application of a statute of limitations. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435 (1990); Phillips, 984 F.2d at 491. The doctrine may be available in circumstances in which "a claimant has received inadequate notice." Freeman v. Federal Deposit Insurance Corp., 312 U.S. App. D.C. 324, 56 F.3d 1394, 1405 (D.C. Cir. 1988) (quoting Mondy, 845 F.2d at 1057 (quoting Baldwin Co. Welcome Center v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1729, 80 L. Ed. 2d 196 (1984) (per curiam))). Absence of prejudice to the other party and due diligence are important considerations, see Spannaus v. Fed'l Election Comm'n, 300 App. D.C. 398, 990 F.2d 643, 644 (D.C. Cir. 1993), but absence of prejudice enters the "calculus only if another factor provides the essential underpinning for equitable tolling." Dougherty v. Barry, 276 U.S. App. D.C. 167, 869 F.2d 605, 613 (D.C. Cir. 1989). Whether a claimant has acted with due diligence is a "fact-specific judgment in each case." Hohri v. United States, 251 U.S. App. D.C. 145, 782 F.2d 227, 250 (D.C. Cir. 1986).
In this case, three propositions appear clear. First, the Department of Justice has complied fully with the letter of the statute, providing Banque Indosuez with the notice to which it was entitled under 18 U.S.C. § 1963(l)(2). Second, Banque Indosuez failed to file its claim within thirty days of the published notice, as required by statute. Third, Banque Indosuez, alerted early to the possibility that it had a claim, did not sit idle. Instead, it pursued its claim long before the $ 263,250 was actually declared forfeited to the government on August 19, 1993.
The specific and repeated attempts by Banque Indosuez to determine whether the finds were in fact among those BCCI assets seized by the government satisfies this Court that Banque Indosuez acted with due diligence in pursuing its claim. While awareness of the blocked sum imposed a duty on Banque Indosuez to conduct a reasonable inquiry, due diligence does not require Banque Indosuez to have succeeded in identifying with precision the location of the $ 263,500, particularly when specific inquiries to the Department of Justice went unanswered. This is not a case in which a claimant who has received actual notice nevertheless sat on its claim until the limitations period expired. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984) (per curiam). Here, Banque Indosuez attempted to determine whether it had a claim and, if so, what procedure it must follow to preserve its claim.
While due diligence may be lacking in some cases where the claimant has failed to monitor publication notices in major newspapers, even if Banque Indosuez had diligently monitored the notices,
it is not clear that the published notice would have provided adequate notice to Banque Indosuez that it had a claim. There is more than a suggestion in the record that the notice failed to identify with sufficient clarity that the sum of $ 263,500 was included within the amount of $ 827,396.35, declared forfeited by the government in BCP's account number 23012. There is no evidence that Banque Indosuez was advised, or otherwise had knowledge, that the $ 263,500 was placed in this account. Except for the Federal Reserve's correspondence directing its inquiries to the Department of Justice, until it received Justice's letter dated September 17, 1993, on November 15, 1993, all Banque Indosuez knew with any certainty was what the Federal Reserve had told Ms. Marx earlier in the year: the sum of $ 263,500, inadvertently sent to First American on July 12, 1991, was blocked. On November 15, 1993, three weeks after the close of the statutory period to file claims, Banque Indosuez received the long-sought answers to its multiple inquiries.
Perhaps Banque Indosuez should have, after scrutinizing the published notices of forfeiture, fled protective claims as a precautionary measure where funds in any BCP accounts at First American were declared forfeited. However, while prudent, such extremely cautious measures are not necessary to satisfy the due diligence standard under the facts of this case. As discussed above the published notice did not specifically identify the sum Banque Indosuez sought. See United States v. Estevez, 845 F.2d 1409, 1411-12 (7th Cir. 1988) (notice defective where published notice was insufficient to put third party on notice that forfeiture included third party's interest; failure to file "excusable"). Given the combination of the ambiguity in the published notice as to the $ 263,500 and the government's silence in the face of Banque Indosuez' direct inquiries, the failure to file timely is excusable; it should not be dispositive of what otherwise may be a meritorious claim.
Also relevant in the Court's calculus is the fact that the government cannot be prejudiced by equitably tolling Banque Indosuez' filing period. If the transfer to First American occurred as Banque Indosuez avers, it is likely that the government would have no entitlement to the sum of $ 263,500.
Under the circumstances of this case, a wooden application of 18 U.S.C. § 1963(l)(2) would result in granting the government's Motion to Dismiss. Banque Indosuez did not file its claim within 30 days of the last date of the published notice as the statute requires. However, the letter of the law need not be applied woodenly if, in so doing, fundamental fairness would become a casualty. While it should be invoked judiciously, equitable tolling is available to the Court to do justice and steer around such unfair results. In this case, where the foreign petitioner has made repeated attempts to obtain information from the government regarding the assets at issue; where the government's notice failed to identify specifically the $ 263,500 sought; where Banque Indosuez filed its claim within 30 days of being provided actual notice; where its claim was also filed within a reasonable time after the date of constructive notice; where Banque Indosuez has at least made a prima facie demonstration on the merits of an interest superior to that of the government's; and where no prejudice would inure to the government, equitable tolling is appropriate.
The government's Motion to Dismiss will be denied.
For the reasons stated above, it is hereby
ORDERED that the government's Motion to Dismiss is denied; and it is
FURTHER ORDERED that should the government or the Court-Appointed Fiduciaries oppose Banque Indosuez' L-Claim on the merits, briefs in opposition shall be filed on or before March 29, 1996; Banque Indosuez' reply, if any, shall be filed on or before April 12, 1996.
IT IS SO ORDERED.
February 27, 1996.
JOYCE HENS GREEN
United States District Judge