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
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. SeeEwing, supra; United States v. Proplast II,
946 F.2d 422 (5th Cir. 1991).