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146. Points to Remember When Considering Seizure and Condemnation Actions Under the Food, Drug, and Cosmetic Act

  • These actions proceed under the Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions. 21 U.S.C. § 334(b).
  • Supplemental Rule G, a new rule adopted in 2006, consolidates in a single rule the procedures for in rem forfeiture actions arising from federal statutes, including the Food, Drug, and Cosmetic Act. Inter alia, Rule G provides requirements and procedures for the complaint, issuance of the warrant, notice to interested parties, and litigation of contested forfeitures.
  • Pursuant to Rule G, the United States must now submit a verified complaint and warrant application to the court (i.e., to a U.S. District Judge or Magistrate Judge). If the court finds probable cause to support the statutory violation, it must issue the warrant. Supp. R. G(3)(b)(ii). This probable cause determination represents a significant change from the pre-2006 version of Supplemental Rule C, under which the United States filed the complaint and warrant application with the clerk, who issued the warrant as a ministerial act.
  • Furthermore, the complaint must include, inter alia, a statement of "sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial." Supp. R. G(2)(f).
  • A party opposing the seizure action has no right to be heard prior to issuance of the warrant. See Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950).
  • The courts may not entertain affirmative actions to enjoin the government from instituting seizure and condemnation actions. Any arguments that the goods are not properly subject to such an action are to be made in the action itself. See Ewing, supra; United States v. Proplast II, 946 F.2d 422 (5th Cir. 1991).

[updated October 2008] [cited in USAM 4-8.260]

Updated June 5, 2015