In this case, the petitioners filed their L-Claim untimely. Moreover, they have failed to offer a basis for equitable tolling. Consequently, the L-Claim will be barred as untimely, the government's motion will be granted, and the L-Claim dismissed.
In general, a court is obligated to apply statutory time requirements as written even though "those words lead to a harsh result." United States v. Locke, 471 U.S. 84, 95-96, 105 S. Ct. 1785, 1792-93, 85 L. Ed. 2d 64 (1985). Where a statutory deadline has passed and a litigant has failed to file timely, substantial compliance is not enough. Id. at 100-02, 105 S. Ct. at 1796-96. This Court has previously determined that the time limits applicable to l-claims under 18 U.S.C. § 1963(l)(2) are not jurisdictional in nature, which, if jurisdictional, would deprive the Court of any authority to offer shelter to a duly diligent, but late-filing litigant. Memorandum Opinion and Order of Feb. 27, 1996, United States v. BCCI Holdings (Luxembourg) S.A., etal., Slip. op. at 11-14, Cr. No. 91-0655 ("In re Petition of Indosuez Bank"); see also Order of Nov. 13, 1992, United States v. BCCI Holdings (Luxembourg), S.A., Cr. No. 91-0655, Slip. op. at 4 ("In re Petition of Delphis Bank").
Because the time limitations are not jurisdictional, the Court has the discretion to invoke the doctrine of equitable tolling 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 v. Heine, 299 U.S. App. D.C. 359, 984 F.2d 489, 491 (D.C. Cir. 1993). 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, it is clear that the Department of Justice has not only complied fully with the letter of the statute, providing the petitioners with the notice to which they were entitled under 18 U.S.C. § 1963(l)(2), but the government has gone well beyond the statutory requirements, providing the petitioners with repeated personal notice through their attorney, co-petitioner Gibbs. In October of 1992, Gibbs was provided advance notice that the government intended to seek forfeiture of the escrow account and he was advised of the applicable law.
By letter of September 7, 1993, the government provided Gibbs with notice of the Third Order of Forfeiture through a letter sent to Gibbs' last known, and believed to be current, address. Relying upon a third party (Foley & Lardner) who advised that Gibbs had changed addresses, the government later directed personal service at Gibbs' new place of employment. And, finally, while reserving its right to move for dismissal for failure to file timely, the government provided yet another copy of the Order of Forfeiture to Gibbs via facsimile pursuant to his request. The government is commended for its efforts, which exceed the statutory requirements. However, under the statute, the petitioners' L-Claim was required to have been filed no later than October 27, 1993. Because it was not filed until December 27, 1993, it is untimely.
Untimely l-Claims are barred unless the Court, in its discretion, determines that an equitable basis is present to toll the limitations period. The petitioners have not identified a suitable basis for equitable tolling and, under the facts of this case, none is apparent to the Court. The facts of this case indicate that the petitioners were less than duly diligent--making application of the doctrine of equitable tolling unavailable as a matter of this Court's discretion if not unavailable as a matter of law.
Gibbs, as counsel for the petitioners, was provided with actual notice that the government would seek forfeiture of the escrow account under his custody and control. See Letter of October 16, 1992, attached to Motion to Dismiss, supra, at Exhibit A. The Court expects that Gibbs, as counsel, would have not only reviewed the law on his behalf and that of his clients, advising them and taking action as appropriate, but he also would have monitored major newspapers, such as the Miami Review, for the expected publication of the notice of forfeiture. Moreover, a person exercising due diligence in such a matter is expected to have provided the government with a new or forwarding address to ensure that personal notice arrived promptly. Given Gibbs' apparent omissions, the petitioners are estopped from claiming foul now, particularly since no foul has occurred. The government provided the petitioners with all the notice to which they were entitled and more. Despite the fact that their representative moved without providing the government with an updated address, the Department of Justice tracked Gibbs down and provided him or his agents with personal notice on multiple occasions. The petitioners received early notification that the escrow account was subject to forfeiture and they received more notice than is required by law. Nevertheless, they failed to file timely.
Unlike Indosuez Bank, see In re Petition of Indosuez Bank, supra, the petitioners have not presented this Court with an acceptable reason for their failure to file timely. Not only have the petitioners not been misled, see In re Petition of Delphis Bank, supra, but the government's attempts to provide the petitioners with notice exceeded the requirements imposed by 18 U.S.C. 1963(l)(2). Moreover, the petitioners did not demonstrate due diligence. See In re Petition of Indosuez Bank, supra. It is not that the petitioners, through Gibbs, have presented a weak case for equitable tolling. It is that they have presented virtually no case at all. The petitioners' L-Claim will be barred as untimely and the Motion to Dismiss will be granted.
For the reasons stated above, it is hereby
ORDERED that the government's Motion to Dismiss is granted.
IT IS SO ORDERED.
February 27, 1996.
JOYCE HENS GREEN
United States District Judge
Judgment be and is hereby entered for United States of America against B. Gray Gibbs, PA., Amjad Awan, Syed A. Hussain, Akbar A. Bilgrami, Sebte Hassan, and Ian Howard pursuant to the Court's order dated February 27, 1996.
February 27, 1996