UNITED STATES OF AMERICA, PETITIONER V. JOHN VON NEUMANN

   No. 84-1144

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional provision and statutes involved
   Statement
   Summary of argument
   Argument
      I. The administrative remedy of remission and
          mitigation of forfeiture does not implicate any
          property interest and hence is not subject to
          the Due Process Clause
      A. A government decision concerning conferral
          of a benefit does not involve a "property"
          interest unless the government is bound to take
          specified actions on the basis of particular
          findings
      B. The remission and mitigation remedy is
          purely a matter of executive grace and therefore
          does not implicate the Due Process
          Clause
      1. The statute establishing the remission
          and mitigation remedy does not create a
          property interest
      2. Customs Service regulations concerning
          the processing of remission petitions do
          not create a property interest
      II. Even if due process protections do attach
          to the remission process, the period of time taken to
          consider respondent's petition did not violate
          those constitutional protections
      A. Due process protection for remission petitions
          does not include a right to a speedy
          disposition
      1. There is no need to create a constitutional
          right to a prompt disposition in order to
          ensure fundamental fairness in the
          remission context
      2. Imposing constitutional time constraints
          on the consideration of remission petitions
          will adversely affect the interests of
          claimants in obtaining remission or mitigation
      B. Even if a constitutional right to a speedy
          disposition of a remission petition does exist,
          the processing of respondent's petition did
          not violate that right
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 729 F.2d 657.  The previous opinion of the court of appeals (Pet.
App. 15a-21a) is reported at 660 F.2d 1319.  /1/ The findings of fact
and conclusions of law of the district court (Pet. App. 35a-40a) are
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 30, 1984.
 A petition for rehearing was denied on September 18, 1984 (Pet. App.
13a-14a).  On December 6, 1984, Justice Rehnquist granted an extension
for filing a petition for a writ of certiorari to January 15, 1985.
The petition was filed on that date and was granted on April 29, 1985.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

            CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

   The Fifth Amendment to the Constitution provides in pertinent part:

         No person shall be * * * deprived of life, liberty, or
      property, without due process of law * * *.

   19 U.S.C. 1497 provides:

         Any article not included in the declaration and entry as
      made, and, before examination of the baggage was begun, not
      mentioned in writing by such person, if written declaration and
      entry was required, or orally if written declaration and entry
      was not required, shall be subject to a forfeiture and such
      person shall be liable to a penalty equal to the value of such
      article.

   19 U.S.C. 1618 provides in pertinent part:

         Whenever any person interested in any vessel, vehicle,
      merchandise, or baggage seized under the provisions of this
      chapter, or who has incurred, or is alleged to have incurred,
      any fine or penalty thereunder, files with the Secretary of the
      Treasury if under the customs laws * * * a petition for the
      remission or mitigation of such fine, penalty, or forfeiture,
      the Secretary of the Treasury, * * * if he finds that such fine,
      penalty, or forfeiture was incurred without willful negligence
      or without any intention on the part of the petitioner to
      defraud the revenue or to violate the law, or finds the
      existence of such mitigating circumstances as to justify the
      remission or mitigation of such fine, penalty, or forfeiture,
      may remit or mitigate the same upon such terms and conditions as
      he deems reasonable and just * * *.

                          QUESTIONS PRESENTED

   1. Whether the statutory provision that allows a claimant to
petition the Customs Service for discretionary remission or mitigation
of penalties for violations of the customs laws creates a property
interest subject to the requirements of the Due Process Clause of the
Fifth Amendment.

   2. Whether, assuming that due process requirements apply to the
remission decision, they include a requirement of prompt disposition
that was violated in this case.

                               STATEMENT

   In March or April 1974, respondent, an automobile dealer, purchased
a 1974 Jaguar Panther automobile in Switzerland and shipped it to
Vancouver, Canada with the intention of bringing it into the United
States (Tr. 13, 20-21).  For this purpose, respondent had the
automobile registered in the State of California and obtained
California license plates for it (Pet. App. 36a).  On January 20,
1975, respondent arrived in Vancouver to take possession of the
vehicle and obtained a release form from Canadian customs authorizing
him to transport it through Canada to the United States-Canadian
border in British Columbia.  Canadian customs officers instructed him
to deliver the form to the Canadian customs border station before
leaving Canada.  Tr. 27-30, 151;  Pet. App. 16a-17a, 36a.

   Later that day, respondent drove south toward the United States
border.  After failing to stop first at the Canadian customs station
to surrender the release form as he had been instructed, he arrived at
the United States border checkpoint at Blaine, Washington at
approximately 5:00 p.m.  Tr. 31-32;  Pet. App. 17a, 36a-37a.  /2/

   Earlier that day Canadian customs officials had alerted United
States customs officers at the Blaine checkpoint that a Jaguar Panther
automobile had been off-loaded at the Vancouver ocean terminal and
might be driven across the border into the United States (Tr.
110-111).  As respondent drove up to the Customs primary inspection
point, the inspector on duty recognized that the automobile matched
the description given by the Canadians.  After the inspector inquired
whether respondent was a United States citizen and how long he had
been outside the United States, he asked whether respondent had
"purchas(ed) or acquir(ed) anything outside the United States" (Tr.
113).  When respondent answered negatively, the inspector asked him
whether he had anything to declare to Customs, "to make sure there was
no mistake about what information was needed" (Tr. 114).  Respondent
indicated that the only property in his possession was his personal
belongings (ibid).  Pet. App. 17a, 37a.  /3/

   Following this exchange, the inspector directed respondent to park
his car and to enter the Customs station.  He then referred the case
to his supervisor, giving as the reason for additional inquiry
respondent's failure to declare the vehicle (Tr. 115-116).  When the
supervisory inspector asked respondent why he had failed to declare
his automobile, respondent answered that he did not think he was
required to.  The officer then informed him that the vehicle was being
seized because of his failure to declare it.  Tr. 144-145, 148-149;
Pet. App. 17a-18a.  See 19 U.S.C. 1497, 1602.

   The supervisor then completed the necessary seizure documents and
assisted respondent in preparing a "petition for Remission or
Mitigation of Forfeitures and Penalties Incurred." In his very brief,
handwritten petition, respondent stated that he "had no intention of
avoiding U.S. Customs duties" and explained that he had mistakenly
arrived at the United States Customs office after attempting to locate
Canadian customs for the purpose of surrendering his Canadian release
form (J.A. 12;  Pet. App. 18a).  Upon completion of the necessary
documents, the supervisor explained that respondent could obtain the
release of his vehicle by posting a cash bond /4/ and arranged for
respondent to be transported to a local hotel (Tr. 51, 155-159).  From
there, respondent arranged to fly home in his private plane that was
waiting in Seattle (Tr. 51-52).

   2. Two weeks later, on February 3, 1975, respondent posted a bond
for $24,500, the appraised value of his car, and Customs returned the
vehicle to him (Pet. App. 19a).  On February 12, 1975, respondent
filed with Customs a "Supplement to the Petition for Remission" in
which he provided a detailed account of the circumstances surrounding
his attempt to bring the automobile into this country.  Respondent
alleged for the first time that the Customs inspector had never
inquired whether respondent had anything to declare;  he also repeated
his earlier claim that he fully intended to pay the duty on the
automobile.  J.A. 13-16.  The filing contained no request that his
petition be acted upon with expedition.

   On February 25, 1975, the Seattle District Director of the Customs
Service /5/ informed respondent that, upon consideration of his
petition and the reported facts, the penalty for failing to declare
the car, in violation of 19 U.S.C. 1497, was being remitted to $3,600.
 The District Director therefore refunded $20,900 to respondent (J.A.
17).  Respondent objected (J.A. 18-19) and obtained an administrative
review of this determination (see 19 C.F.R. 171.33(b)), and on April
14, 1975, the Regional Commissioner of Customs in San Francisco upheld
the $3,600 penalty assessment (J.A. 20).  Pet. App. 19a.

   2. Respondent then filed the instant suit in the United States
District Court for the Central District of California, seeking return
of the $3,600 penalty and a declaration that the seizure of his
automobile and the imposition of a penalty were unlawful.  Respondent
also sought injunctive relief ordering that his name be withdrawn or
deleted from any Customs Service computer or list of individuals who
have attempted to violate the customs laws.  C.A. App. 2-9.  /6/ After
an evidentiary hearing, the district court found that respondent had
violated 19 U.S.C. 1497 by failing to declare his automobile and that,
accordingly, the seizure of the vehicle by Customs was proper and the
automobile was subject to forfeiture (Pet. App. 39a).  The district
court also found that the remission and mitigation procedures followed
by Customs "were proper" (ibid).

   3. The court of appeals affirmed the district court's determination
that the seizure of respondent's vehicle was proper, finding that
"(t)he record fully supports the district court's conclusion that
(respondent) attempted to introduce his car into United States
commerce without declaring it, despite an opportunity to do so." Pet.
App. 20a.  It reversed, however, the district court's holding that the
procedures followed by Customs in acting upon respondent's petition
for mitigation were proper.  Proceeding from the premise that in cases
involving the seizure of an automobile "due process requires the
Customs Bureau to act promptly in ruling on petitions for remission or
mitigation under 19 U.S.C. Section 1618" (Pet. App. 30a), it held that
"(t)he (one month) delay in processing (respondent's) petition for
remission or mitigation * * * violated his due process right to prompt
consideration of his claim" (id. at 32a).  /7/ The court then went on
to articulate specific standards to be used by Customs prospectively
to assure the prompt processing of petitions for administrative
relief.  The court stated that Customs should, unless "unusual
circumstances" require a brief delay, act on all petitions within 24
hours of receipt and provide the claimant an opportunity to make an
oral appearance to argue his claim (id. at 31a-32a & n.16, 331-34a).

   4. The government sought certiorari, and this Court granted the
petition and vacated and remanded for reconsideration in light of
United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850)
in United States Currency, 461 U.S. 555 (1983).  462 U.S. 1101 (1983).
 On remand, the court of appeals adhered in substantial part to its
previous decision (Pet. App. 1a-12a).  The court found that this
Court's decision in $8,850 "reinforce(d)" its view that due process
rights attach to the processing of the petition for remission, and
therefore the court reaffirmed its earlier view that due process
requires Customs to dispose of those petitions promptly (id. at 71).

   With respect to the standards it had established for considering
petitions for remission or mitigation, the court of appeals drew back
from the 24-hour limit that it had imposed, noting that $8,850 had
indicated that a due process inquiry should be a flexible one that
depends on the facts of a particular case (Pet. App. 8a).  Relying on
$8,850, the court adopted the four-factor analysis of Barker v. Wingo,
407 U.S. 514 (1972), as the appropriate framework for considering a
claim of violation of due process through delay in processing a
petition for remission or mitigation (Pet. Ap. 81-9a & n.6).

   The court of appeals remanded the case to the district court to
consider those factors, but it deemed it appropriate to make several
observations to assist the district court.  Stating that "the
propriety of the delay may turn to a great extent upon the nature of
the item that has been seized," the court of appeals noted the
"special hardships" imposed on persons deprived of their automobiles,
which are "particularly grave when the seizure, as here, leaves a
traveler without transportation at a remote border point" (Pet. App.
10a).  Although the reasons for the delay were not previously at issue
in the district court, the court of appeals also stated that the
record indicated "no obvious reason" for the one-month delay and that
it "appears that, at the time of the seizure, Customs may have had all
of the facts at hand necessary for an expeditious determination of the
petition" (id. at 11a).  With respect to the third Barker factor, the
court noted that respondent had promptly filed a petition for
remission, "which seems a sufficient assertion of his rights" (ibid.).
 Finally, the court noted that the prejudice to the claimant from the
delay could include "expenses resulting from a seizure of his vehicle,
sudden disruption of travel plans (and) inconvenience" (id. at 12a).

                          SUMMARY OF ARGUMENT

                                  I.

   It is well established that the protections of the Due Process
Clause do not extend to every government decision that affects
individual interests.  By its terms, the Clause applies only to
deprivations of "life, liberty, or property." "Property" interests are
not created by the Constitution;  they are created by the state
through the conferral of rights by law.  See Board of Regents v. Roth,
408 U.S. 564, 577 (1972).  Numerous decisions of this Court have made
clear that only when the government binds itself to confer a benefit
or withhold a sanction on the determination of a particular set of
facts does it establish a "property" or "liberty" interest covered by
the Due Process Clause.  Thus, for example, the Court has held that an
inmate may not challenge on due process grounds the failure of the
Connecticut Board of Pardons to commute his life sentence even though
75% of all commutation requests were granted by the Board.
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981).
Because the Board's decision was committed wholly to its discretion,
the inmate's petition was "nothing more than an appeal for clemency"
(id. at 465) that could generate no due process protection regardless
of the frequency with which relief was granted.

   Like the commutation remedy in Dumschat, the relief of remission or
mitigation of forfeiture is purely a matter of executive grace that
does not implicate due process protections.  The statute creating the
remedy provides that the Secretary of the Treasury "may" remit or
mitigate the forfeiture and establishes no limitation on the
Secretary's exercise of that discretion.  19 U.S.C. 1618.  The
claimant therefore has no entitlement to relief on any particular set
of facts, and the Secretary's decision to deny relief in a given case
is unreviewable.  Hence, the remission procedure does not create a
"property" interest.

   By the same token, internal Customs Service guidelines concerning
the disposition of remission petitions do not create an entitlement to
relief that invokes due process protection.  These guidelines, which
were not even made available to the public until several years after
respondent's remission petition was acted upon, expressly "are not
mandatory";  their purpose is to promote equitable and uniform results
among the various decisionmakers within the agency, not to confer on a
claimant any right to a particular disposition.  To construe these
guidelines as creating a constitutionally protected property interest,
contrary to the agency's intent, would be counterproductive because it
would simply encourage the agency to eliminate the guidelines.

   The conclusion that there is no independent property interest in
the remission proceeding does not mean that an individual's property
can be seized and forfeited without due process.  The Due Process
Clause applies to the deprivation of the claimant's ownership interest
in the seized property, and therefore he has a right to a hearing on
the question of forfeitability.  But the basic premise underlying the
remission petition is the assumed forfeitability of the property,
which extinguishes the claimant's ownership interest, and therefore
there is no independent property interest in the remission proceeding
to which due process rights can attach.  Of course, Congress and the
agency ordinarily can be expected to establish fair procedures for
decisionmaking, which is in fact precisely what has happened in the
remission context.  In the absence of a property interest, however,
these procedures are not constitutionally compelled.

                                 II.

   A. Even if due process protections do apply to the remission
procedure, those protections should not include a right to a speedy
disposition.  Due process basically guarantees that a proceeding be
fair;  the exact contours of the protections vary according to the
demands of the situation.  A right to a speedy disposition is not
ordinarily considered one of the basic due process protections, and it
is particularly inappropriate in the remission context.  Because it is
a given of the remission proceeding (as distinct from the forfeiture
proceeding) that the property is forfeitable (and forfeited property
becomes owned by the government as of the time it is seized), delay in
processing a remission petition does not deprive the claimant of the
use of his property.  The property belongs to the government, which
may decide -- in its discretion -- to remit all or part of its value
to the claimant.  Therefore, the right to speedy action found
necessary by the Court with respect to the institution of judicial
forfeiture proceedings (see $8,850, 461 U.S. at 563-565), where the
ownership of the property is in dispute, is inappropriate in the
remission context.

   In fact, a constitutional right to prompt disposition of a
remission petition would have the perverse effect of undermining the
primary goal of the Due Process Clause -- promoting fair and reasoned
decisionmaking.  Adequate consideration of the merits of a remission
petition may entail time-consuming investigation of relevant facts;
in addition, to assure equitable results the Customs Service has
established review procedures, which also require time.  Moreover, the
sheer number of remission peitions processed (more than 50,000 each
year) makes it impossible for Customs to give each one proper
attention in the short time frame contemplated by the court of
appeals.

   The decision below, however, elevates speed above all other
considerations in the processing of remission petitions.  Because the
agency cannot predict with any confidence whether a court will
ultimately find a particular decisional time frame to be too long, the
decision below places tremendous pressure on Customs to dispose of
petitions as quickly as possible.  In this context, where the decision
is committed to the agency's unfettered discretion and is
unreviewable, the logical response for Customs would be simply to deny
all petitions that it cannot definitely determine to grant in very
short order.  The ultimate result would be that many cases that are
now settled administratively would instead be referred for judicial
forfeiture proceedings.  This would place added burdens on the
government and the courts;  even more important, it would seriously
disadvantage claimants, for most of whom the remission process is
their only realistic hope of reacquiring any of their property.

   B. Even assuming that there exists a constitutional right to speedy
disposition of a remission petition, that right could not possibly
have been violated in this case.  First, respondent has not alleged
that he was prejudiced by the delay in his ability to secure relief
from forfeiture;  however, prejudice is ordinarily a necessary element
of a due process claim.  United States v. Lovasco, 431 U.S. 783, 790
(1977).  The court of appeals therefore erred in applying the
four-factor test of Barker v. Wingo, 407 U.S. 514 (1972), as if this
were a claim under the Speedy Trial Clause.

   In any event, proper application of the Barker factors establishes
that no constitutional violation occurred here.  Under Barker, only a
delay that is so long as to be "presumptively prejudicial" triggers
consideration of the other factors (407 U.S. at 530).  In the speedy
trial context, which involves a serious loss of liberty, delays of
less than seven months generally are considered too short to warrant
triggering more detailed inquiry;  in the due process context, the
Court has recognized that even longer delays are not presumptively
prejudicial.  The 36-day delay here does not even approach the level
at which a serious question of unconstitutional delay requiring resort
to the full Barker analysis might be presented.

   Finally, the focus of the court of apeals' Barker analysis is
completely misdirected.  The court looked at the prejudice resulting
from the seizure itself, not that resulting from the delay in
processing the remission petition, which is the alleged constitutional
violation.  The fact that respondent was inconvenienced by having the
car seized at the border and was deprived of its use for a few days
before he posted a bond (see Pet. App. 12a) was a direct result of his
actions in attempting to bring his car across the border without
declaring it, thus making the car subject to seizure and forfeiture.
This inconvenience and deprivation was not a product of any delay in
acting on the remission petition.  Unless the remission decision is
made sooner than the claimant is likely to be able to procure
substitute transportation, which is plainly not practical, it cannot
possibly alleviate any of the "prejudice" relied on by the court of
appeals, and hence that prejudice is quite irrelevant here.

   In sum, proper application of the Barker factors manifestly
requires denial of respondent's claim.  The delay was quite short.  It
seems likely that it was justified by the need to investigate and
assess the merits of respondent's remission petition.  Respondent did
not assert his desire for a speedy disposition of the petition;
indeed, his filing of a detailed supplement plainly belies such an
intent.  And there is no suggestion how the delay in acting on the
petition could possibly have prejudiced respondent in his ability
ultimately to receive a favorable resolution (see $8,850, 461 U.S. at
569-570) or in any other way.

                               ARGUMENT

   Respondent was discovered by Customs officials attempting to bring
a $24,500 foreign automobile into the United States without declaring
it.  It is undisputed that those officials were authorized to seize
the automobile because of this violation of 19 U.S.C. 1497 and that
the automobile was forfeitable to the United States.  See Pet. App. 4a
n.3, 20a-22a, 37a, 39a.  Pursuant to its discretionary authority
conferred by statute, however, the Customs Service granted respondent
substantial relief on his petition for remission or mitigation,
agreeing to mitigate the severity of the forfeiture and remit $20,900
to respondent, thus imposing a modest penalty of $3,600 for the
statutory violation.  The court of appeals has nevertheless held that
the Constitution may relieve respondent entirely of liability for his
misdeed -- even the greatly mitigated penalty imposed by Customs.  The
court concluded that the time taken to rule on respondent's petition
for remission and mitigation -- 36 days from the filing of the
petition and 13 days after respondent filed an extensive supplement --
violated the Due Process Clause in the absence of a particularized
justification for the delay.  The result is that he may be excused
from the mitigated penalty and, indeed, even the payment of customs
duty on the automobile.

   The court of appeals' decision is erroneous in several respects.
First, because the remission and mitigation remedy is purely one of
administrative grace, its existence does not give rise to a property
interest to which the protections of the Due Process Clause attach.
An individual's ownership interest in property, of course, provides
him with a constitutional guarantee that the property will not be
seized or forfeited without due process.  This constitutional
protection, however, does not extend to the procedures for mitigation,
under which the government may elect to forgo the full forfeiture to
which it is entitled and allow an individual to retain some portion of
the value of the forfeited property.  Second, even if the Constitution
does extend due process protection to the mitigation decision, it does
not require a speedy disposition.  Finally, even if the Due Process
Clause protects against undue delay in disposition of remission
petitions, the action on respondent's petition was swift enough to
satisfy any conceivable requirement of prompt disposition that the
Constitution might impose.

 I. THE ADMINISTRATIVE REMEDY OF REMISSION AND MITIGATION OF
FORFEITURE DOES NOT IMPLICATE ANY PROPERTY INTEREST AND HENCE IS NOT
SUBJECT TO THE DUE PROCESS CLAUSE

 A. A Government Decision Concerning Conferral Of A Benefit Does Not
Involve A "Property" Interest Unless The Government Is Bound To Take
Specified Actions On The Basis Of Particular Findings

   The Fifth Amendment provides that "(n)o person shall be * * *
deprived of life, liberty, or property, without due process of law."
While the procedural protections conferred by this clause are
broad-ranging, it is well established that they do not extend to all
situations in which governmental action or inaction may be adverse to
the interests of a particular person or group:

         Decisions of the Executive Branch, however serious their
      impact, do not automatically invoke due process protection;
      there simply is no constitutional guarantee that all executive
      decisionmaking must comply with standards that assure error-free
      determinations.

   Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex,
442 U.S. 1, 7 (1979), citing Meachum v. Fano, 427 U.S. 215, 224-225
(1976).  By its terms, the Clause applies only in those circumstances
in which governmental action threatens to deprive a person of "life,"
"liberty," or "property." Board of Regents v. Roth, 408 U.S. 564, 571
(1972).  The government's discretionary decision whether to mitigate a
forfeiture cannot result in a deprivation of "property," and hence the
requirements of the Due Process Clause have no application here.

   It is axiomatic that "(p)roperty interests are not created by the
Constitution, 'they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source
such as state (or federal) law.'" Cleveland Board of Education v.
Loudermill, No. 83-1362 (Mar. 19, 1985), slip op. 5 (quoting Board of
Regents v. Roth, 408 U.S. at 577).  See also Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980).  In various
contexts, this Court has repeatedly faced the question whether a
particular government program creates a property or liberty interest
cognizable under the Fifth Amendment.  From these cases, the clear
rule has emerged that only when the government binds itself to confer
a benefit or withhold a sanction on the determination of a particular
set of facts does a "property" or "liberty" interest exist that
receives the protection of the Due Process Clause.  /8/

   In Wolff v. McDonnell, 418 U.S. 539 (1974), for example, the Court
held that the state government had created a liberty interest in the
provision of good-time credits to prisoners (resulting in earlier
release) and therefore that a decision to deprive a prisoner of his
good-time credits was subject to the constraints of the Due Process
Clause.  The basis for the "liberty interest" was that the state
statute conferred a right to good-time credits and specified that the
right could be "forfeited only serious misbehavior" (418 U.S. at 557),
thus creating a statutory entitlement to the credits unless a factual
finding of serious misbehavior was made.  /9/ By contrast, in Meachum
v. Fano, 427 U.S. 215 (1976), and Montanye v. Haymes, 427 U.S. 236
(1976), the Court held that due process rights did not attach to the
decision to transfer a state prisoner to another facility.  The
crucial distinction from Wolff was that these transfers "are not
conditioned upon the occurrence of specified events" (Meachum, 427
U.S. at 226-227 (footnote omitted));  rather, "prison officials have
discretion to transfer (an inmate) for whatever reason or for no
reason at all" (id. at 228).  The Court concluded that "no Due Process
liberty interest of a duly convicted prison inmate is infringed when
he is transferred * * * absent some right or justifiable expectation
rooted in state law that he will not be transferred except for
misbehavior or upon the occurrence of other specified events"
(Montanye, 427 U.S. at 242).  See also Olim v. Wakinekona, 461 U.S.
238, 248-251 (1983);  Jago v. Van Curen, 454 U.S. 14, 20-21 (1981);
Greenholtz, 442 U.S. at 10.

   In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981),
the Court applied this analysis in a situation closely analogous to
the remission context.  Under Connecticut law, the Board of Pardons is
empowered to commute life sentences by reducing the minimum prison
term, thereby accelerating eligibility for parole.  An inmate whose
request for commutation had been rejected brought suit alleging that
the Board's procedures did not comport with due process;  to support
his claim that the Board's decision infringed a "liberty" interest,
the inmate asserted that he had a reasonable expectancy that his
sentence would be commuted because 75% of all commutation requests
were granted by the Board.

   The Court, however, unequivocally rejected the contention that the
Board's decision implicated a liberty interest protected by the Due
Process Clause.  The Court explained that there were "no explicit
standards" for the commutation decision (452 U.S. at 466), i.e., the
Board was "not required to act on prescribed grounds" (id. at 467);
rather, the Board of Pardons was invested with "'unfettered
discretion'" (id. at 466).  Therefore, the Court concluded that the
petition for commutation "in each case is nothing more than an appeal
for clemency * * *;  it is simply a unilateral hope:" to which due
process protections do not attach (id. at 465).  The Court
particularly emphasized that "(n)o matter how frequently a particular
form of clemency has been granted, the statistical probabilities
standing alone generate no constitutional protections;  * * *.  The
ground for a constitutional claim, if any, must be found in statutes
or other rules defining the obligations of the authority charged with
exercising clemency" (ibid.).  See also id. at 467 (Brennan, J.,
concurring);  Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979).

 B. The Remission And Mitigation Remedy is Purely A Matter Of
Execution Grace And Therefore Does Not Implicate The Due Process
Clause

   1. The statute establishing the remission and mitigation remedy
does not create a property interest

   The statutory source of authority to remit or mitigate Customs
forfeitures is 19 U.S.C. 1618, which provides that the Secretary of
the Treasury "may remit or mitigate the (forfeiture) upon such terms
and conditions as he deems reasonable and just" (emphasis added) if he
finds a lack of culpable intent or "the existence of such mitigating
circumstances as to justify" a reduction or elimination of penalty.
The permissive language of the statute makes clear that the remedy is
completely at the discretion of the Secretary, who may refuse relief
to a petitioner who acted without culpable intent or may grant it to
one who acted with intent to defraud, if the Secretary finds "such
mitigating circumstances" as support relief.  In short, no set of
facts that respondent could have demonstrated would have entitled him
to any relief from the Secretary, because nothing in the statute
requires the Secretary to grant mitigation under any particular set of
circumstances.  /10/ Indeed, over 150 years ago, this Court described
the Customs remission process as a "subject submitted to (the
Secretary's) sound discretion." United States v. Morris, 23 U.S. (10
Wheat.) 246, 285 (1825).  /11/

   The mitigation statute therefore is just like the sentence
commutation statute involved in Dumshat.  It gives the claimant no
more than the ability to "appeal for clemency" (452 U.S. at 465);  the
disposition of that appeal is committed to the unfettered discretion
of the Secretary of the Treasury or his delegate.  Not only has
Congress failed to impose any criteria that bind the Secretary, it has
not provided any mechanism at all for review of his decision.  It is
undisputed that the courts lack jurisdiction to review the Secretary's
action on a petition for remission or mitigation.  See United States
v. Morris, 23 U.S. (10 Wheat.) at 285;  United States v. One 1973
Buick Riviera Automobile, 560 F.2d 897 (8th Cir. 1977);  United States
v. One 1972 Mercedes-Benz 250, 545 F.2d 1233, 1236 (9th Cir. 1976);
United States v. One 1970 Buick Riviera, 463 F.2d 1168 (5th Cir.),
cert. denied, 409 U.S. 980 (1972);  United States v. One 1961
Cadillac, 337 F.2d 730 (6th Cir. 1964).  In sum, this unreviewable,
purely discretionary, administrative determination whether to mitigate
a lawful forfeiture is purely a matter of executive grace.  Because
the claimant has no entitlement to relief in any situation, there can
be no deprivation of property and hence the protections of due process
are not implicated.  See Olim v. Wakinekona, 461 U.S. at 250.

   It must be emphasized that the question of the applicability of the
Due Process Clause to the remission decision is quite distinct from
the question of the procedures required in connection with the
forfeiture of the seized property.  Plainly, respondent had a property
interest in his automobile at the time it was seized.  The
Constitution guarantees that he cannot be deprived of that property
interest without due process of law, and he is entitled to a
full-fledged judicial hearing before his property is declared
forfeited.  See generally United States v. Eight Thousand Eight
Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S.
555 (1983).  /12/ Indeed, under $8,850, respondent or any claimant has
due process protection against unreasonable delay in the forfeiture
proceeding.

   But that basic property interest in the automobile has nothing to
do with the remission decision.  The remission proceeding "presupposes
that the offence has been committed" (United States v. Morris, 23 U.S.
(10 Wheat.) at 291), i.e., it is premised on the assumption that the
property is indeed forfeitable.  The only question is whether the
Secretary will choose to remit to the claimant all or part of the
value of the forfeited property.  /13/ Therefore, the claimant's
property interest in the seized property is not implicated in the
remission proceeding.  That interest is completely extinguished by the
forfeitability of the property.  This point is perhaps best
illustrated by examining the hypothetical situation presented if
Customs procedures provided that the remission petition must be filed
after the judicial forfeiture proceeding.  The claimant would have the
same interest in getting a speedy decision in that situation as he
does here;  conceptually, the two situations are not different.  But
it is clear that his prior ownership would give him no property
interest in the outcome of the remission proceeding.  Thus, the only
due process question involved here is whether the existence or
structure of the remission proceeding creates an independent property
interest that implicates constitutional protections.  See Greenholtz,
442 U.S. at 7 (basic liberty interest in avoiding confinement
extinguished by conviction;  liberty interest in parole must derive
from different source).  /14/

   2. Customs Service regulations concerning the processing of
remission petitions do not create a property interest

   As discussed above, it is clear that Congress did not establish any
entitlement to relief when it conferred by statute upon the Secretary
of the Treasury the discretionary authority to grant remission.  This
Court has held, however, that such an entitlement, even if not
required by statute, also may be created by administrative regulations
that impose mandatory criteria for particular determinations.  Hewitt
v. Helms, 459 U.S. 460 (1983).  In Hewitt, the Court held that the
Pennsylvania prison regulations governing administrative segregation
of prisoners created a liberty interest because of their "repeated use
of explicitly mandatory language in connection with requiring specific
substantive predicates" for the decision.  459 U.S. at 472.  The
guidelines established by the Customs Service for ruling on remission
petitions, however, plainly do not create any property interest that
invokes due process protections.

   When respondent filed his petition for remission, there were no
regulations governing the disposition of his request, but there were
internal guidelines within the Customs Service that sought to promote
uniform decision-making.  See generally 48 Fed. Reg. 30098 (1983);  47
Fed. Reg. 7409 (1982).  Purely internal guidelines such as these,
however, cannot give rise to a constitutionally protected property
interest.  First, because the guidelines are not public or otherwise
known to the claimant, they cannot provide him with any expectation of
relief on a given set of facts.  Regardless of the facts of his
particular situation, he still has no more than a "unilateral hope"
(Dumschat, 452 U.S. at 465) of obtaining mitigation of the forfeiture.
 See also Greenholtz, 442 U.S. at 11-12;  Montanye v. Haymes, 427 U.S.
at 242.  Moreover, while such internal guidelines plainly are intended
to guide the determinations of persons to whom duties have been
delegated, they cannot bind the statutorily-designated decisionmaker
himself.  Since they are not even distributed outside the agency,
internal guidelines exist and are applied solely at the discretion of
the head of the agency who promulgated them.  Thus, in this case,
regardless of the degree of discretion conferred by the internal
guidelines that were in use, the discretion of the Secretary of the
Treasury to rule on remission petitions remained unfettered, as
provided by statute.  Accordingly, the guidelines could not confer
upon respondent any entitlement to relief.  See Olim v. Wakinekona,
461 U.S. at 249-250.

   Subsequent to the events involved in this case, the Customs Service
extensively revised its guidelines for ruling on remission petitions
filed in connection with violations of 19 U.S.C. 1497, and it has now
made the revised guidelines available to the public.  48 Fed. Reg.
30098 (1983);  19 C.F.R. 171, app. A.  The guidelines identify certain
mitigating and aggravating factors to be taken into account and
establish a range of appropriate remission decisions depending on the
prescence or absence of these factors.  Even these guidelines,
however, do not create a property interest because they do not bind
the government to take any specific action on a remission petition.
By their terms, the guidelines "provide a framework and procedure by
which violations of 19 U.S.C. 1497 are to be analyzed.  They are not
mandatory in the sense that they must be absolutely applied" (Section
III.1.).  Rather, they allow the decisionmaker to retain discretion to
depart from the guidelines for reasons that he deems appropriate.
Thus, in contrast to Hewitt where the relevant regulations "used
language of an unmistakably mandatory character" (459 U.S. at 471) and
left no room for the use of administrative segregation in the absence
of specific substantive predicates, the regulations here explicitly
state that they are not mandatory.  See also Olim v. Wakinekona, 461
U.S. at 250 n.10.  The intent of the Customs guidelines plainly is to
promote fair and uniform dispositions among the various persons who
rule on remission petitions, not to establish a right of the claimant
to any particular disposition.

   As a general rule, the courts should be extremely hesitant to infer
the creation of a property interest from regulations promulgated by an
agency in furtherance of its duty to exercise discretionary authority
conferred by statute.  Even where official action is intrinsically
subjective, judgmental, or discretionary, it is ordinarily sound
governmental practice to attempt to achieve rationality and
consistency of action through the use of written guidelines.  /15/
This Court has characterized the channelling of decisionmaking in this
manner as a "salutary development." Hewitt v. Helms, 459 U.S. at 471.
But, as noted above, the establishment of such guidelines does not
necessarily evidence a decision to guarantee particular action on any
particular set of facts and thereby to create a property interest.  If
the promulgation of guidelines is deemed, contrary to the agency's
intent, to embrace the full panoply of constitutional due process
protections, the unfortunate result may be to discourage the
government from issuing such guidelines altogether.  See ibid.; United
States v. Caceres, 440 U.S. 741, 755-756 & n.24 (1979).

   In this case, for example, if the guidelines issued by the Customs
Service were deemed to create a property interest, which in turn
imposed upon the agency a requirement of speedy disposition of
remission petitions that it considered unduly burdensome, a logical
response for the agency would be to eliminate the guidelines and
return to a regime of less consistent decisionmaking. /16/ Thus, in
considering whether agency regulations themselves create a property
interest, the touchstone of the inquiry should be the agency's intent
in promulgating those regulations;  imposing procedural requirements
contrary to that intent is unwarranted and likely to be
counterproductive.  /17/ Here, the guidelines themselves make it
crystal clear that they were not intended to create any due process
rights.

   The conclusion that a claimant lacks a property interest in the
disposition of his remission petition and hence that the Due Process
Clause is not implicated does not mean that arbitrary decisionmaking
will be unduly encouraged.  On the contrary, quite apart from
constitutional constraints and judicial oversight, both legislature
and executive have an independent interest in providing a fair and
efficient decisional process.  With respect to petitions for
remission, the Customs Service has established a multi-step
investigation and review process /18/ that provides that the final
decision be reflected in a written opinion that includes a statement
of findings of fact and reasons.  /19/ Indeed, respondent has never
suggested that he was denied a fair adjudication or that he did not
receive due process, apart from the question of speedy disposition.
/20/

   The Constitution simply was not designed to oversee every aspect of
governmental decisionmaking.  See Greenholtz, 442 U.S. at 7;  Bishop
v. Wood, 426 U.S. 341, 349-350 (1976).  When Congress enacts a
procedure that creates no entitlement, but rather operates solely as a
matter of administrative grace, an individual's procedural protections
are established not by the Constitution but by the political processes
as reflected in the procedures accorded by Congress itself or by the
agency.  Cf. Heckler v. Day, No. 82-1371 (May 22, 1984) (noting
congressional consideration of wisdom of imposing deadlines on
disability benefit eligibility determinations);  Board of Egents v.
Roth, 408 U.S. at 578-579 (noting that opportunity for hearing in
connection with employment nonretention may be appropriate even though
not constitutionally required.) /21/

 II. EVEN IF DUE PROCESS PROTECTIONS DO ATTACH TO THE REMISSION
PROCESS, THE PERIOD OF TIME TAKEN TO CONSIDER RESPONDENT'S PETITION
DID NOT VIOLATE THOSE CONSTITUTIONAL PROTECTIONS

   A. Due Process Protection For Remission Petitions Does Not Include
A Right To A Speedy Disposition

   1. There is no need to create a constitutional right to a prompt
disposition in order to ensure fundamental fairness in the remission
context

   Even assuming that the existence and structure of the remission
procedure is deemed to create a property interest, it does not
necessarily follow that due process requires a speedy disposition.  A
conclusion that Fifth Amendment protections apply to the consideration
of a remission petition means that some process is due, but it does
not answer the question whether the required process encompasses a
right to a speedy disposition of that petition.  Due process is a
"flexible" concept that "calls for such procedural protections as the
particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481
(1972).  Basically, due process guarantees that a proceeding be fair;
"(t)he fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.'" Mathews v.
Eldridge, 424 U.S. 319,333 (1976) (quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965)).  As noted above, the Customs Service has
established detailed procedures for the equitable processing of
remission petitions, and respondent, who filed both an initial
remission petition and a detailed supplement prepared with the
assistance of counsel, has not complained that he was given an
inadequate opportunity to present his case and never complained during
the administrative process that a decision was being unreasonably
delayed.

   It is true, of course, that the procedural protections provided by
the Due Process Clause must be provided "at a meaningful time"
(Armstrong v. Manzo, 380 U.S. at 552) and therefore that, in some
contexts, delay theoretically can violate due process (see Barry v.
Barchi, 443 U.S. 55, 66 (1979)).  But unless a delay is so lengthy (or
the benefit in question so time-sensitive) that the delay has the
practical effect of seriously undermining the usefulness of the
decision, the right to a speedy disposition is not ordinarily
considered one of the essential attributes of due process.  Thus, even
in situations where the property or liberty deprivation is
considerably more serious than that involved here, the Court has
repeatedly found no constitutional problem with decisional processes
that take significantly longer than the few weeks involved in this
case.  For example, in Cleveland Board of Education v. Loudermill,
slip op. 13-14, the Court found no constitutional problem with an
unexplained delay of nine months in providing a post-termination
hearing concerning the correctness of a decision to discharge a person
from employment.  In Mathews v. Eldridge, supra, the Court recognized
that the hardship imposed by a termination of Social Security
disability payments was "significant" (424 U.S. at 342), but it
nonetheless found no due process problem with the postponement of the
required hearing until more than a year after termination of the
benefits (id. at 341-343).  See also Heckler v. Day, slip op. 15
(characterizing court-imposed deadlines for consideration of
disability claims as an "unwarranted judicial intrusion").

   The Court has recognized a due process right to a speedy
disposition in two contexts, but those decisions highlight the
inappropriateness of finding a due process prohibition against delay
here.  In United States v. Lovasco, 431 U.S. 783 (1977), the Court
found that a delay in bringing an indictment could, in certain limited
circumstances, give rise to a due process violation.  The Court's
holding was limited to the situation where the government conduct
violated standards of "fair play and decency," such as an intentional
delay designed to gain a tactical advantage over the defendant, and
where the delay prejudiced the defendant's ability to present his case
at trial.  See id. at 795-796.  And in $8,850, of course, the Court
held that undue delay in providing a forfeiture hearing could violate
due process because of the deprivation of the use of the seized
property.  461 U.S. at 563-565.  In both cases, however, the Court
found that a decisional delay of 18 months did not violate due
process.

   The remission context is fundamentally different from the above
situations, and there is no need to create an independent
constitutional right to a speedy disposition in order to guarantee due
process in the administrative proceeding.  The basis for the right to
a speedy judicial forfeiture proceeding recognized in $8,850 is the
fact that the claimant is deprived of the use of the property -- to
which he may have a valid claim -- until the hearing is held to
resolve the forfeitability of the property.  In other words, a delay
in the forfeiture proceeding results in a temporary deprivation of the
claimant's property in the event that the property ultimately is held
not to be forfeitable.  By definition, however, delay in the remission
proceeding cannot result in the deprivation of use of the claimant's
property.  The underlying premise of a remission petition is that the
property is forfeitable;  /22/ the claimant seeks to have the penalty
eliminated or reduced because of mitigating factors.  In essence, the
claimant concedes that the property belongs to the government, but, as
a matter of executive grace, he requests that part of the forfeited
value be remitted to him.  Indeed, the courts have recognized that
when the property is forfeitable, it becomes the government's property
as of the time of seizure.  See United States v. Stowell, 133 U.S. 1,
16-17 (1890);  Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir.
1978).  Plainly, the claimant should have no distinct constitutional
right to speedy disposition of his remission petition (as opposed to a
determination of the forfeitability of the property) when he is not
being deprived of the use of his property during the pendency of the
petition.  Because the property in question is recognized -- for
purposes of the administrative remission proceeding -- as belonging to
the government, delay in that proceeding cannot affect a property
interest of the claimant.

   2. Imposting constitutional time constraints on the consideration
of remission petitions will adversely affect the interest of claimants
in obtaining remissions or mitigation

   The creation of a due process right to a speedy disposition of a
remission petition is not only theoretically unsound, it is unwise as
a practical matter because it would actually disserve the primary goal
of the Due Process Clause.  The general purpose of due process
protections is simply to promote fairness;  more specifically, their
"primary function * * * is to minimize the risk of erroneous
decisions." Mackey v. Montrym, 443 U.S. 1, 13 (1979);  see generally
Mathews v. Eldridge, 424 U.S. at 335.  Obviously, that purpose is
undermined in the remission context if the decisionmaker is not given
adequate time to consider the merits of a petition.  But the drastic
consequences of a finding of a due process violation in the remission
process as a result of delay -- i.e., barring imposition of any
penalty for smuggling even though there is not challenge to the
substantive validity of the penalty /23/ -- creates a strong pressure
on the decisionmaker to place speedy disposition above all other
considerations, at the expense of a careful weighing of the merits of
the petition.  In general, when a judicial standard of a reasonably
prompt determination is imposed, the administrative agency has no way
of knowing what amount of time might later be considered "reasonable"
by the courts.  Indeed, because of the strain that enormous numbers of
remission petitions place on the limited manpower available to process
them, it is likely in this context that what the agency perceives as
reasonable speed in processing a petition sometimes will be found by a
court, which looks only at the case before it, to have been
unreasonably slow.  Therefore, if a due process right to a speedy
disposition is imposed, the Customs Service would have a strong
incentive to rule on remission petitions as quickly as possible, even
if it has not had the opportunity to give them adequate consideration,
in order to avoid the possibility of litigation and perhaps
invalidation of its forfeiture on the ground of undue delay.

   This general problem inherent in any right to a speedy disposition
is exacerbated here because of the extremely short time frame
apparently contemplated by the court of appeals.  In its original
decision, the court stated that 24 hours ought to be the maximum time
available for considering remission petitions in ordinary cases (Pet.
App. 31a-32a);  in its second decision, the court drew back from this
rigid position, but still strongly intimated that the 36 days involved
here was far too long (id. at 7a-12a).  This approach reflects a
complete failure to appreciate the practicalities of the remission
process and the steps that must be undertaken in order to provide
equitable and reasoned disposition of petitions.  Indeed, if Customs
itself had adopted regulations requiring disposition with such haste,
we think the increased risk of arbitrary decisionmaking inherent in
such procedures would make them far more vulnerable to due process
attack than the existing procedures.

   As described above (note 18, supra), the Customs Service has
established detailed procedures for processing remission petitions.
Customs often must investigate the basis for the factual allegations
in the petition and make other inquiries, which may concern events and
circumstances beyond those at the site of the seizure or submission of
the petition.  As detailed in an affidavit executed by the Director,
Entry Procedures and Penalties Division, Office of Regulations and
Rulings, United States Customs Service (Pet. App. 41a-50a), which was
led with the government's rehearing petition, there are numerous
factors that are relevant in deciding the extent to which relief
should be granted.  /24/ An assessment of these factors may require
factual investigation, which requires both time and manpower.  The
Director's affidavit states that most decisions on petitions for
remission normally take more than 30 days and, in a large number of
cases, at least three to six months is needed for Customs to collect
the information necessary to make an informed decision even if it
gives high priority to an application over other pending matters (id.
at 45a, 47a, 49a).

   Indeed, the factors that necessitate more extended consideration of
petitions than the court of appeals seems willing to accept are well
illustrated by this case.  See Pet. App. 471-48a.  A responsible
decision on respondent's petition required at a minimum an inquiry
(that could potentially extend all the way to Switzerland) into
respondent's ownership interest in the seized vehicle which was
registered in the name of Grace Blote, its intended recipient (C.a.
App. 11), and the possibility that the vehicle was being brought into
this country for commercial purposes.  In addition, the District
Director was required to consider respondent's allegations that the
Customs inspector had never asked him whether he had anything to
declare and that respondent lacked any intent to avoid paying his
customs duty (J.A. 12, 15-16).  To evaluate these claims required at
least some inquiry into respondent's background, which could not
reasonably be based exclusively on respondent's self-serving
statements about his reputation and the amount of duty he had paid on
other occasions.  See J.A. 12, 16.  Taking into account the enormous
number of remission petitions that must be processed, /25/ it is
difficult to see how Customs can be condemned for taking five weeks to
reach a decision on this petition.  The fact that the court of appeals
has found this time frame inadequate graphically illustrates the
difficult position in which the Customs Service is placed by the due
process right created below and manifests why the agency will be
impelled in the future to reach remission decisions as hastily as
possible, at the expense of informed and reasoned decisionmaking.

   The fact that the remission decision is committed to the Secretary
of the Treasury's unreviewable, unfettered discretion makes it even
less appropriate to impose a constitutional requirement of a speedy
disposition in the remission context.  It is undoubtedly true that a
claimant may desire a prompt ruling on his remission petition even if
he has no opportunity to seek review of that decision and even if it
turns out to be unfavorable.  See Johns v. McKinley, 753 F.2d 1195,
1203 (2d Cir. 1985).  /26/ But that does not mean that it is sensible
policy to have a speedy disposition requirement.  If there are
reviewable standards that govern an administrative decision, the
pressure to forgo careful consideration of that decision in order to
satisfy a timeliness requirement is balanced somewhat by the
possibility that a hasty, ill-considered decision may be reversed on
appeal.  Here, however, there is no countervailing requirement that
would keep the Secretary from giving short shrift to petitions in
order to avoid violating a speedy disposition requirement.  Under the
court of appeals' decision, there is nothing that prevents the
Secretary from rendering completely arbitrary decisions so long as
they are speedy.  Indeed, the most logical response to the severe time
constraints imposed by the decision below would be for the Secretary
simply to deny petitions that he cannot definitely decide to grant in
very short order.  /27/ The matter would then be referred under 19
U.S.C. 1603 to the United States Attorney for the institution of
judicial forfeiture proceedings (or, if the value of the seized
property is small, would proceed to administrative forfeiture
proceedings).

   Thus, the ultimate result of the due process right established by
the court of appeals is that many cases that are now settled
administratively would instead be resolved in forfeiture proceedings.
/28/ This result runs contrary to the congressional purpose in
establishing the remission and mitigation remedy, which is designed to
promote administrative, rather than judicial, resolution of claims
resulting from Customs seizures.  Moreover, increasing the number of
cases resolved through judicial proceedings, instead of through the
less formal and less costly remission procedure, will impose
substantial burdens on the government and on the courts that must
adjudicate those proceedings.  See $8,850, 461 U.S. at 566;  Ivers v.
United States, 581 F.2d at 1370.

   Most important, reducing the number of cases settled through the
remission procedure will seriously disadvantage the claimants
themselves.  Ordinarily, and this was certainly true in respondent's
case, a claimant's only realistic hope of reacquiring any of his
seized property is the remission process.  The circumstances of the
seizure of the property are usually such that judicial proceedings
will inevitably result in a finding of forfeitability -- and the
forfeiture proceeding is an all-or-nothing affair.  Thus, speedy
denial of a remission petition because of time constraints is rarely
in the claimant's best interest.  See $8,850, 461 U.S. at 566.  /29/
In sum, the effect of creating a constitutional right to a speedy
disposition of a petition for remission or mitigation is antithetical
to the basic goals of due process -- promoting fair and error-free
determinations -- and is actually adverse to the general interests of
claimants as a class.  Hence, even if there is some due process
protection that attaches to the remission procedure, the protection
"called for" in that context (Morrissey v. Brewer, 408 U.S. at 481)
does not include a right to a speedy disposition.  /30/

   B. Even If A Constitutional Right To A Speedy Disposition Of A
Remission Petition Does Exist, The Processing Of Respondent's Petition
Did Not Violate That Right

   Even assuming, contrary to our primary submission, that the Due
Process Clause does guarantee a claimant the right to speedy
disposition of his remission petition, the court of appeals'
conclusion that that right could have been violated in this case
cannot possibly be correct.

   1. At the outset, we believe that the court erred in assuming that
respondent's claim should be governed by reference to the four-factor
test set forth in Barker v. Wingo, 407 U.S. 514 (1972), for assessing
alleged violations of the Speedy Trial Clause.  The due process
protection against undue delay found here by the court is most closely
analogous to the due process protection against excessive
preindictment delay recognized in United States v. Lovasco, supra.  In
Lovasco, the court not only found that a due process claim could not
be pressed unless the government conduct violated standards of fair
play and decency, it also noted that "proof of prejudice is generally
a necessary but not sufficient element of a due process claim." 431
U.S. at 790.  The right of prompt disposition recognized by the court
of appeals here, which does not appear to depend at all on the
existence of prejudice and certainly is not limited to cases of
government misconduct, generally is appropriate only when considering
rights conferred by a specific provision of the Constitution and not
when applying the general protections of the Due Process Clause.

   The Court did suggest in $8,850 that a due process claim based on
delay might be possible in some circumstances in the absence of
demonstrable prejudice, but that conclusion makes sense only in the
specific context involved in $8,850, which, as the court of appeals
itself recognized (Pet. App. 6a@7a), is significantly different from
that involved here.  The judicial forfeiture proceeding -- the timing
of which was at issue in $8,850 -- is the final step in the legal path
triggered by the seizure of forfeitable property.  It therefore was
logical for the Court in $8,850 to look for guidance to cases arising
under the Speedy Trial Clause, an analogous situation involving the
delay in holding the final step (the trial) in the chain of judicial
events triggered by an indictment.  But the claim here is not
analogous to a speedy trial claim;  a petition for remission or
mitigation is an optional, and collateral, administrative remedy that
plainly is not automatically set in motion by the seizure of
forfeitable property.  Hence, despite $8,850, a due process claim of
delay in acting on a petition for mitigation ought not to be resolved
by immediately invoking the Barker factors.  Instead, some showing of
prejudice caused by the delay ought to be a prerequisite to the claim,
just as Lovasco holds that prejudice is a prerequisite for a claim of
preindictment delay.

   2. Even assuming that the court of appeals was correct in applying
the Barker factors to determine whether a delay in ruling on a
remission petition violates due process, the court manifestly erred in
holding that application of those factors to this case could possibly
result in finding a violation.  The court of appeals' analysis of the
four factors grossly deviates from the approach contemplated in Barker
and $8,850.

   a. Under the four-factor analysis set forth in Baker v. Wingo,
supra, the length of the delay is a factor that "triggers"
consideration of the other factors.  407 U.S. at 530.  In other words,
unless the delay in question is so long as to be "presumptively
prejudicial" (ibid.), the speedy trial claim is rejected without the
need to consider the other factors.  It seems apparent that the amount
of delay needed to trigger the Barker balancing test in the speedy
trial context ought to be considerably less, at least in the absence
of unusual circumstances, than that needed to trigger the test in the
forfeiture remission context.  First, in the speedy trial context the
claim is based on a specific constitutional provision that guarantees
a speedy disposition, as compared to the general protections of the
Due Process Clause.  Moreover, the deprivation in the speedy trial
context that gives rise to the constitutional claim -- loss of liberty
-- is considerably more grievous than the alleged deprivation of
property in the remission context.  See $8,850, 461 U.S. at 565 n.14.
Be that as it may, even if the identical standards ought to be applied
in these disparate contexts, it is manifest that 36 days is altogether
too short a period of time to trigger consideration of the other
Barker factors.  See, e.g., United States v. Struyf, 701 F.2d 875, 879
(11th Cir. 1983) (seven month delay does not trigger consideration of
other Barker factors);  United States v. Nance, 666 F.2d 353, 360 (9th
Cir.), cert. denied, 456 U.S. 918 (1982) (five months);  United States
v. Elorduy, 612 F.2d 986, 988 (5th Cir. 1980) (six months).  See also
United States v. MacDonald, 456 U.S. 1, 11 (1982).

   The cases that have considered allegations of a due process
violation (as opposed to a violation of the Speedy Trial Clause) based
on delay confirm that the time frame here was entirely too short even
to raise the possibility of a constitutional violation.  In both
$8,850 and Lovasco a delay of 18 months was held insufficient to
establish a due process violation.  /31/ In Cleveland Board of
Education v. Loudermill, slip op. 13-14, the Court found that a
nine-month delay, without more, did not raise a due process question.
See also Mathews v. Eldridge, 424 U.S. at 341-343 (recognizing
validity of delay of more than a year between termination of
disability benefits and required hearing).  Against this background,
it seems manifest that the court of appeals erred in concluding that a
delay of less than six months in processing a remission petition could
even trigger consideration of the Barker factors, much less actually
establish a due process violation.  A fortiori, there can be no
constitutional violation in this case, where the delay in question was
of a wholly different order of magnitude, a mere 36 days.  /32/ In
sum, the unreasonably short time frame imposed by the court of appeals
would not further due process;  the pressure it would impose on the
agency "would subordinate the goal of 'orderly expedition' to that of
'mere speed.'" Lovasco, 431 U.S. at 795 (quoting Smith v. United
States, 360 U.S. 1, 10 (1959)).

   3. In addition to the fact that the court of appeals erred in
holding that the short delay here triggered consideration of the other
Barker factors, the court seriously erred in its application of those
factors.  The analysis contemplated by the court of appeals and
"suggested" to the district court (Pet. App. 9a-12a) is completely
misdirected because it fails to focus on the conduct that is actually
alleged to constitute the due process violation.  The court looked to
the prejudice resulting from the seizure itself, such as the potential
consequences of depriving an individual of a means of transportation
for an extended period of time (see Pet. App. 12a), but the alleged
due process violation arises not from the seizure at all, but from the
time taken to process a petition for remission.  It must be remembered
that the class of cases under consideration involves vehicles for
which there is probable cause to believe that they have themselves
been smuggled into the country (as here) or have been employed for the
transportation of illegal drugs or other contraband.  Generally, the
claimant has no basis for objecting to the seizure itself.  /33/ The
purpose of the remission process is simply to consider whether there
are extenuating circumstances that might justify amelioration of the
penalty of forfeiture.  In short, a person who attempts to smuggle a
vehicle or contraband across the border should be held to have assumed
the risk of any inconvenience that might result from its seizure and
has no right to raise a constitutional objection based on that
inconvenience.  If a due process violation is claimed because of
excessive delay in the remission process, it must be based on the
prejudice resulting from that delay, not from the seizure.

   This pervasive error by the court of appeals renders meaningless
much of its Barker analysis.  For example, one of the four Barker
factors is whether the defendant (or, here, the claimant) asserted his
right to a speedy disposition.  407 U.S. at 528-529, 531-532.  This
factor was recognized by the Court as in important one;  it noted in
Barker that "failure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial" (id. at 531).
Here, the court of appeals disposed of this factor quite simply,
stating that respondent "filed his petition for remission at the time
his vehicle was seized, which seems a sufficient assertion of his
rights" (Pet. App. 11a).  To be sure, the mere filing of a remission
petition almost certainly demonstrates the claimant's unhappiness with
the seizure and his desire to avoid, if possible, forfeiture of the
total value of the seized property.  But it does not say anything
about the claimant's expectations or demands with respect to the
timing of the ruling on the petition, which is the crucial issue in
this setting.  The issue presented here cannot arise unless a
remission petition is filed, so the court of appeals' approach has the
effect of eliminating one of the Barker factors by weighing it in
favor of the claimant in every case.

   In fact, the circumstances here strongly indicate that respondent
did not assert his "right" to a disposition of his remission petition
in less than 36 days, nor did he desire such a speedy resolution.
After he filed his initial handwritten petition (J.A. 12), respondent
retained counssel and filed a detailed supplemental petition, less
than two weeks before his petition was acted upon.  And respondent
sought further administrative review of the mitigation decision when
it was issued.  (J.a. 18-19).  Had Customs acted upon respondent's
remission petition within three weeks, i.e., before the supplemental
petition was filed, he might well have complained that the hasty
action deprived him of due process.  At any rate, respondent took no
action that could reasonably be construed as an assertion of a right
to a speedy disposition of his remission petition.

   The court of appeals' discussion of prejudice, which ought to be a
prerequisite to any due process claim here (see pp. 37-38, supra), is
similarly flawed.  The court did not suggest any way in which
respondent was prejudiced in his defense of the forfeiture action or
the resolution of the remission petition -- the kind of prejudice
recognized as relevant in $8,850.  See 461 U.S. at 569-570;  see also
Lovasco, 431 U.S. at 789-790, 796.  The court noted that the claimant
may be prejudiced by inconvenience or disruption of travel plans
caused by the seizure (Pet. App. 12a).  In particular, the court
emphasized the severe prejudice inherent in a vehicle seizure because
it leaves a traveler stranded "without transportation at a remote
border point" (id. at 10a;  see also id. at 26a).  But such a claim of
prejudice can be material only to the decision whether due process
requires action within hours of a seizure -- a rule the court of
appeals itself recognized on remand as inappropriate.  /34/

   A due process rule that allows even a few days to investigate and
act upon the petition will not help the claimant with his "stranding"
problem because, in any event, the decision will come when he is no
longer stranded.  Needless to say, a claimant is not immobilized at
the border during the entire period his remission petition is pending.
 Procedures exist to permit the claimant to obtain the return of his
vehicle;  he can post a bond in the amount of the value of the
vehicle.  That is what respondent did in this case, two weeks after
the seizure, at which time the Jaguar was released to him (Pet. App.
19a).  Indeed, there is nothing in the record to show why he could not
have posted a bond and obtained possession of the car within a day or
two had he wished to do so.  /35/ Moreover, even before respondent
reclaimed possession of his car, it can hardly be said that he was
left stranded at the border.  On the contrary, the Customs agent
arranged for transportation for respondent to the nearest town, from
which respondent arranged to fly home in his private plane, which was
waiting in Seattle (Tr. 51-52).  In other words, the "prejudice"
relied upon by the court of appeals was essentially unrelated to the
timing of the remission decision;  that prejudice would have been
unchanged even if the remission decision had been rendered
considerably faster.  The inconvenience suffered by respondent when
his effort to escape paying duty on a $24,500 foreign automobile was
thwarted was fairly ascribable to his own misdeed and not to any
unfairness in the processing of his peition for administrative
clemency.

   In sum, examined in the proper light, i.e., focusing on the delay
in processing the petition, the Barker v. Wingo factors cannot
possibly be found to support a due process claim in this case.  The
length of the delay was entirely too short to suggest any
constitutional deficiency.  This short delay was almost certainly
ascribable to the need to investigate the contentions raised by and
assess the merit of respondent's petition for remission.  /36/
Respondent did not assert a right to, or desire for, a speedy
disposition of his remission petition.  Finally, there is no
suggestion how the delay in acting on the petition (as distinct from
the seizure itself) could possibly have prejudiced the claimant in a
manner analogous to that contemplated in $8,850 -- i.e., in reducing
his chances for a favorable disposition of his remission petition (see
461 U.S. at 569-570) -- or, indeed, in any other way.  Respondent's
complaint boils down to no more than the desire to receive a sum of
money sooner -- money that indisputably is the property of the
government and to which he had no legal entitlement.  /37/ In short,
the court of appeals' remand order, with its suggestion that the
district court could find a due process violation because of the
36-day consideration period in this case, is gravely flawed.  /38/

   Moreover, the broader implications of the court of appeals'
application of the Barker factors to the facts of this case are quite
disturbing.  In essence, the court of appeals has distilled Barker
into a single factor test for delays in acting on remission petitions.
 Since, under the court's analysis, even a very short delay triggers
the inquiry, the mere filing of the petition satisfies the demand
requirement, and inconvenience caused by the seizure is treated as
prejudice caused by the delay, it would appear that three of the
Barker factors will be weighed in favor of the claimant in almost
every case of this kind.  The due process question will turn entirely
on the reasons for the delay.  If Customs can show that, under the
circumstances, it could not possible have acted on the petition more
quickly, the due process claim will be denied.  Otherwise, the claim
will be granted and the forfeiture invalidated.  This formula for
excessive judicial intrusion into the administration of a remedy of
executive grace perverts the Due Process Clause and, if allowed to
stand, can be expected to yield hasty decision-making to the detriment
of the government and claimants alike.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Acting Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   ALAN I. HOROWITZ

      Assistant to the Solicitor General

   JULY 1985

   /1/ That opinion as reported does not contain the modifications
that the court of appeals made to its decision in denying the
government's petition for rehearing.  See Pet. App. 33a-34a.

   /2/ Respondent testified that he inadvertently passed the Canadian
customs building because of poor visibility and inadequate directions
(Tr. 31-32;  Pet. App. 17a).

   /3/ During the hearing, respondent conceded that he knew he had to
declare his automobile at the United States Customs station.  He
claimed, however, that he understood the Customs inspector's questions
to relate exclusively to purchases or acquisitions made in Canada and
that the inquiry thus did not refer to his automobile, since it had
been purchased in Switzerland (Tr. 38-40).

   /4/ Customs officials have discretion to release a seized vehicle
to a person claiming a "substantial interest therein" upon payment of
the value of the vehicle.  19 U.S.C. 1614.  The payment serves as a
bond to cover any penalty assessed for failure to make the declaration
required by law.  See 19 C.F.R. 162.43, 162.44(b).

   /5/ By statute, the Secretary of the Treasury is authorized to act
on petitions for remission or mitigation.  19 U.S.C. 1618.  This
authority has been delegated to District Directors of the Customs
Service in cases where the total value of the merchandise forfeited
does not exceed $25,000 (19 C.F.R. 171.21), and that amount was
recently raised to $100,000 for some cases (50 Fed. Reg. 7335 (1985)).
 The estimated value of respondent's car, $24,500, thus fell within
the District Director's authority to act on petitions for remission or
mitigation.

   /6/ "C.A. App." refers to the excerpt of record filed with the
court of appeals.  In its answer, in addition to defending the
lawfulness of its action, the government asserted that the remission
and mitigation sought and received by respondent was "a final
settlement, accord and satisfaction" binding on him (C.a. App. 22).
In addition, the government filed a contingent counterclaim seeking
recovery of the full $24,500, in accordance with 19 U.S.C. 1497, in
the event the district court found the administrative mitigation
proceedings invalid.  The counterclaim was based upon the theory that,
if the administrative settlement were found to be invalid, the
government was free to seek forfeiture of the full value of the
vehicle as a penalty for failure to declare it, just as if no
administrative relief had ever been granted (C.A. App. 22-23, 32).
The district court entered a judgment in favor of the government on
the merits and accordingly denied the contingent counterclaim and
found it unnecessary to reach the settlement question (Pet. App. 39a).

   /7/ The court of appeals relied heavily upon the decision of the
Second Circuit in Lee v. Thornton, 538 F.2d 27 (1976), in concluding
that due process requires prompt disposition by Customs of
administrative petitions for remission or mitigation of vehicle
forfeitures.  In Lee, the court, relying upon the balancing analysis
in Mathews v. Eldridge, 424 U.S. 319 (1976), held that when vehicles
are seized as security for a penalty or for forfeiture, action on
petitions for remission or mitigation should be required within 24
hours, unless a hearing on probable cause is requested by the
claimant, in which event the hearing should be conducted within 72
hours of the seizure.  538 F.2d at 33.

   /8/ While there has been considerable disagreement on the Court as
to the extent to which liberty interests exist as inherent basic
freedoms independent of any specific statutes or regulations (see,
e.g., Hewitt v. Helms, 459 U.S. 460, 481-488 (1983) (Stevens, J.,
dissenting);  Greenholtz, 442 U.S. at 18-20 (opinion of Powell, J.)),
it has never been disputed that property interests flow solely from
positive law.  Even commentators critical of the Court's approach to
cases involving "liberty" claims concede that "property" is much more
appropriately defined solely as the creation of the state.  See
Herman, The New Liberty:  The Procedural Due Process Rights of
Prisoners and Others under the Burger Court, 59 N.Y.U. L. Rev. 482,
529-530 (1984).

   /9/ See also Morrissey v. Brewer, 408 U.S. 471 (1972) (statutory
right to remain free on parole unless specific terms violated);  Goss
v. Lopez, 419 U.S. 565 (1975) (right to attend public school unless
guilty of misconduct).

   /10/ By contrast, in Greenholtz the Court found that the mandatory
language of the statute -- specifying that the Board of Parole "shall"
order release unless certain specified conditions were met -- created
an entitlement to release that invoked due process protections.  442
U.S. at 11-12.  See Connecticut Board of Pardons v. Dumschat, 452 U.S.
at 466-467.

   /11/ The statute under consideration in Morris was couched in
language quite similar to the present statute.  See 23 U.S. (10
Wheat.) at 285, 291-292;  Act of Mar. 3, 1797, ch. 13, 1 Stat. 506 et
seq.  See also Act of May 26, 1790, ch. 12, 1 Stat. 122 et seq.
(original remission statute).

   /12/ Certain classes of forfeitable property are subject to
administrative (or summary) forfeiture.  The claimant has the option,
however, of contesting forfeiture of such property in a judicial
proceeding if he posts a bond to cover the costs.  19 U.S.C. 1607,
1608, as amended by Pub. L. No. 98-573, Tit. II, Section 213(a)(4) and
(5), 98 Stat. 2984-2985.

   /13/ Obviously, if the seized property is not forfeitable it cannot
be forfeited, and the claimant has no need for the remission
proceeding.

   /14/ It cannot seriously be contended that the Constitution
requires that remission or mitigation relief be available.  The
forfeiture statute would be valid even if the remission remedy of 19
U.S.C. 1618 were repealed, in which case respondent would have
forfeited the full value of his automobile.  If respondent's property
interest in his automobile is not sufficient to require even the
existence of a remission procedure, it follows a fortiori that it
cannot alone operate to require particular procedural protections once
Congress has elected to mitigate the harshness of the forfeiture
statute by providing such a remedy.

   /15/ By the same token, publication of such guidelines may in some
circumstances by beneficial to both the government and the public.  In
this case, for example, the publication by the Customs Service of the
factors that it considers relevant in exercising the Secretary of the
Treasury's discretionary authority to rule on remission petitions will
help ensure that claimants address those factors in their remission
petitions and therefore draft the petitions in the manner that is most
useful to the Customs Service and to the claimants themselves.

   /16/ The costs to the agency of maintaining the guidelines would go
well beyond the administrative burdens imposed by additional due
process protection.  The possibility that agency action on remission
petitions would be found to violate the Constitution raises the dual
dangers that, as here, a valid forfeiture will be nullified and that
individuals may be subject to Bivens suits (see note 27, infra).

   /17/ The question whether government action creates a property
interest is distinct from the question of what process is due once a
property interest has been created.  If an individual has a property
right, he may not be deprived of that property without due process, as
guaranteed by the Constitution.  The government does not have the
power to create a property interest and condition it upon submission
to constitutionally inadequate procedures.  See Cleveland Board of
Education v. Loudermill, slip op. 6-8.  Thus, the question whether a
property interest exists turns largely on the intent of the
government;  the question of what process is due for the deprivation
of a property interest is a constitutional one to which the intent of
the government appears to be largely irrelevant.

   /18/ The procedure for processing petitions for remission of
forfeiture, which are set forth in the U.S. Customs Service, Dep't of
the Treasury, Fines, Penalties and Forfeitures Handbook 116-119 (rev.
1979), provide that:  (1) upon receipt of a petition, an "FP&F"
officer examines the document to determine whether further
investigation is needed;  (2) if he determines that further
investigation is required, he prepares a request for investigation and
forwards it to the district director;  if additional investigation is
not deemed necessary, he prepares a memorandum for the district
director recommending a final determination based upon guidelines and
applicable precedent;  (3) in cases where further investigation is
deemed necessary, the district director may refer the case to the
Customs Office of Investigation, which will further investigate the
allegations contained in the petition or obtain the information
specified by the district director;  (4) following the investigation,
the customs investigator files a report with the district director;
(5) upon completion of the investigatory and review processes, the
district director decides the action to be taken on the petition and
advises the petitioner of the decision in a written opinion that
includes a statement of the findings of fact and the reasoning on
which the decision relies.  A disappointed petitioner may, as
respondent did, obtain administrative review from the Regional
Commissioner.  19 C.F.R. 171.33(b).  For seizures valued at more than
$25,000, there is an additional level of review;  the final decision
on the petition is made by Customs' Washington, D.C. headquarters or,
if the seized items are valued at more than $100,000, by the
Department of Treasury (Pet. App. 48a-49a).

   It is clear, of course, that the institution of particular
procedures by an agency does not itself operate to create a property
interest.  Olim v. Wakinekona, 461 U.S. at 250-251;  Hewitt v. Helms,
459 U.S. at 471.

   /19/ The specific requirement that the written opinion contain
findings of fact and a statement of reasons was established in 1978 to
conform Customs practice generally with the new requirements imposed
by amended 19 U.S.C. 1592.  Thus, this requirement was not in force at
the time respondent filed his petition.

   /20/ The internal Customs procedures for processing remission
petitions do not establish any specific time frames for
decisionmaking.  A claimant is not powerless, however, to obtain a
speedy resolution of the question of his interest in the property.  If
delay in processing the administrative petition for remission or
mitigation is unreasonable under the Administrative Procedure Act, the
claimant may file suit to attempt to compel the agency to act.  5
U.S.C. 706(1);  see note 30, infra.  If the delay is not
"unreasonable" under the statute, but has become inconvenient for the
claimant, he may, of course, seek prompt judicial forfeiture
proceedings.  See $8,850, 461 U.S. at 569;  Slocum v. Mayberry, 15
U.S. (2 Wheat.) 1, 9 (1817);  Castleberry v. Alcohol, Tobacco &
Firearms . Division, 530 F.2d 672, 674-675 (5th Cir. 1976).  Indeed,
Customs regulations now provide that cases "will be referred promptly
to the United States Attorney for institution of judicial proceedings"
"unless the petitioner provides an express agreement to defer judicial
or administrative forfeiture proceedings until completion of the
administrative process." 19 C.F.R. 171.11(d).  The referral of the
case to the Department of Justice for the institution of a forfeiture
action will result in the forwarding of the petition for remission to
the Department of Justice for decision as well.  19 C.F.R. 171.24(a).
In any event, the claimant retains the right to raise a due process
objection to the delay in the forfeiture proceeding itself.

   /21/ If the procedures initially adopted by an agency for
discharging its responsibilities are unfair or ineffectual, it is
likely that pressures will be brought to bear, through public
complaint or legislative oversight, to improve them.

   /22/ If the claimant wishes to contest forfeitability, i.e., the
assumption that it is the government that has the legitimate claim of
ownership of the property, for forfeiture hearing is the place to do
so.  There, the Due Process Clause protects his right to a reasonably
prompt determination.  By the same token, if the claimant has any
objection to the lawfulness of the seizure, he may file a motion for
return of property under Rule 41(e) of the Federal Rules of Criminal
Procedure.

   /23/ In the event that the delay here is found to be a due process
violation, it nevertheless cannot be a proper remedy for respondent to
be absolved of all liability for his violation of the law -- in effect
a dismissal with prejudice of the forfeiture action.  See United
States v. Morrison, 449 U.S. 361 (1981).  Punitive damages against the
government are not permitted, so any remedy must be limited to
whatever damage respondent actually suffered as a result of the
violation.  It seems apparent that there was no such damage here.
Theoretically, a delay could prejudice the claimant's ability to
defend against the forfeiture action, but there is no allegation that
such was the case here;  indeed, the court of appeals agreed that the
property was forfeitable (Pet. App. 4a n.3).  In any event, any
prejudice to the defense of the forfeiture action ought to be subsumed
within an $8,850 claim of undue delay in processing the forfeiture,
not the remission.  It is difficult to imagine how the delay
conceivably could prejudice the claimant's chances of getting
favorable action on the remission petition itself and, again, there is
no such allegation here.  The only damage that it seems a claimant
could suffer from a delay in the remission proceeding is the loss of
the use of the money for the period of undue delay, i.e., interest
(which assumes that he has some right to remission at a given time in
a given amount).  Respondent has not alleged how he was harmed at all
by the 36-day period taken to rule on his petition, much less how he
could have been harmed to the tune of $3,600 (the mitigated penalty)
or $24,500 (the amount of respondent's liability if he had declined to
accept the officer of mitigation).  Thus, it appears that under no
circumstances can he be entitled to recover more than an insignificant
interest award or nominal damages.  See Carey v. Piphus, 435 U.S. 247,
266-267 (1978).

   In the absence of any genuine damage, allowing respondent to excape
liability for his infraction because of delay in processing his
remission petition is a completely unjustified windfall that
undermines the congressional purpose to strike at customs violations
through the pocketbook of the offender.  It is tantamount to using
mere delay as a basis for estopping the government from enforcing the
law, which this Court has unequivocally rejected.  See INS v. Miranda,
459 U.S. 14, 18 (1982).

   /24/ For example, Customs considers whether the violation occurs in
connection with a commercial shipment or an importation for personal
use;  whether the petitioner has a previous record for Customs or
criminal violations;  whether the violation was negligent or willful;
and the validity of a claim that forfeiture would create an
extraordinary financial hardship (Pet. App. 46a-47a).

   /25/ The Customs Service processes more than 50,000 noncontraband
forfeitures per year, and petitions for remission or mitigation are
filed in 90% of those cases.  $8,850, 461 U.S. at 558.  Thus, close to
200 petitions are filed on an average work day.

   /26/ Contrary to the view of the Johns court, this desire does not
provide a basis for finding a property interest in the outcome of the
remission proceeding that generates a constitutional right to a speedy
disposition.  The fact that the claimant wants a prompt resolution of
his petition, just like the fact that he wants and expects a favorable
resolution of his petition because many other petitions are granted as
a matter of practice, does not create a property interest.  His desire
is just a "unilateral hope" (Dumschat, 452 U.S. at 465;  see also
Board of Regents v. Roth, 408 U.S. at 571);  he has no entitlement to
any particular disposition of his petition either with respect to the
merits or the timing.  Those are matters left to the Secretary's
discretion.  See Part I, supra.  By the same token, for reasons
discussed above (pages 19-20, supra), the Johns court errs in holding
(753 F.2d at 1202-1203) that the claimant's original ownership
interest in the seized vehicle established a property interest in the
remission proceeding.  First, the ownership of forfeitable property is
transferred to the government as of the time of the seizure.  United
States v. Stowell, 133 U.S. at 16-17.  Second, the remission
proceeding is premised on the assumption that the claimant no longer
has a legitimate claim to ownership of the property.  Hence, the
original ownership interest is assumed to have been extinguished, just
like a prisoner's undeniable pre-conviction liberty interest in being
free from confinement (Greenholtz, 442 U.S. at 7), and it can provide
no basis for attaching the protections of the Due Process Clause
independently to the remission proceeding.  Thus, the efforts of the
Johns court to distinguish Dumschat are unavailing.

   /27/ Failing to act on a remission petition with speed (or haste)
sufficient to satisfy a reviewing court can have adverse effects
beyond the loss of the forfeiture.  Both courts of appeals that have
found a constitutional right to speedy disposition of a remission
petition have also found that that right can easily give rise to
personal Bivens liability for government officials, ranging from a
relatively lower-level official such as a Customs Service District
Director (Seguin v. Eide, 730 F.2d 1046 (9th Cir. 1983), on remand
from 462 U.S. 1101 (1983), vacating and remanding 645 F.2d 804 (9th
Cir. 1981)) to the head of the seizing agency (Johns v. McKinley,
supra), even in the absence of intentional misconduct.

   /28/ The Director's affidavit in this case states that in 95% of
car seizure cases in which remission petitions are filed, the case is
settled administratively without the necessity of instituting
forfeiture proceedings, i.e., the vehicle is returned upon payment of
a mitigated amount (Pet. App. 49a).  If the decision below induces
Customs to act on all petitions within 30 days, even when that period
is insufficient to make an informed decision to grant relief, many of
these cases (perhaps as many as 70% (id. at 49a, 50a)) would be denied
administratively and referred for forfeiture proceedings instead of
being settled administratively through the remission process.

   /29/ Ordinarily, if property is declared forfeited in a judicial
proceeding, the claimant has the option of filing a petition for
remission or mitigation with the Attorney General.  28 C.F.R. 9.1 et
seq.  Such a petition will not be entertained, however, in cases where
an administrative petition was filed with the Secretary of the
Treasury and denied.  28 C.F.R. 9.3(g).

   /30/ This is not to say that a claimant has no remedy if the
Customs Service unreasonably delays acting on a petition for a
considerable lenth of time. Under the Administrative Procedure Act,
the claimant can bring a suit to compel agency action that is
"unreasonably delayed." 5 U.S.C. 706(1).  The remedy available in such
a suit would be responsive to the complaint;  the agency would be
ordered to act promptly if it is delaying unreasonably.  See Heckler
v. Day, slip op. 15 n.33.  There is no justification, however, for
what respondent has done here under the cover of the Due Process
Clause, i.e., sit back quietly until the agency acts and then bring
suit to alter the substantive rights of the parties by invalidating
the forfeiture on the ground that the agency did not act quickly
enough.

   /31/ In $8,850, the Court did find that the 18-month delay was
sufficiently long to trigger consideration of the other factors of the
Barker balancing test.

   /32/ The absurdity of the court of appeals' conclusion that the
Customs Service acts unreasonably when it takes 36 days to investigate
and rule upon a petition for remission or mitigation is highlighted by
examining the time frames that ordinarily attach to other steps in the
process that is set in motion when property is seized as forfeitable.
The claimant, who presumably is fully conversant with all the facts
surrounding the seizure and hence need not spend any time
investigating, is allowed 60 days just to file his petition for
remission or mitigation.  19 C.F.R. 171.12 (b).  If the case is not
settled administratively, the Court has held that there is nothing
inherently objectionable in 18 months' delay before the judicial
proceeding is instituted ($8,850, supra), let alone decided by the
district court.  And other judicial proceedings in connection with the
forfeiture, such as appeals, also may take a considerable length of
time.  For example, in this case the 36 days taken to act on the
remission petition seems somewhat insignificant in light of the fact
that the case remains in litigation more than ten years after
respondent's vehicle was seized.  Almost four years passed between the
filing of respondent's complaint and the original decision of the
district court (J.A. 1-3).  Respondent's appeal from that decision was
pending in the court of appeals for two years (J.A. 6-8), and it took
the court of appeals an additional ten months to rule on the case a
second time after it was remanded by this Court (J.A. 9-10).

   /33/ If the lawfulness of the seizure is being disputed, the forum
provided for that inquiry is a motion for return of property under
Fed. R. Crim. P. 41(e).

   /34/ In its original decision, the court of appeals stated that
remission decisions would be presumed to be unconstitutionally tardy
if they were issued more than 24 hours after the filing of the
petition (Pet. App. 31a-32a).  The court wisely drew back from that
impossible standard in its decision on remand.  It seems likely that
in many cases 24 hours would not even be enough time for the
decisionmaker to receive the petition filed at the border, much less
have an opportunity to investigate its allegations and reach a
reasoned decision.  The court's original 24-hour standard, however,
sheds some light on the court's narrow focus on the immediate
inconvenience of the seizure in its consideration of the Barker
factors.  If remission or mitigation is granted within 24 hours, the
inconvenience to an individual of losing his car can be alleviated by
that administrative decision, and therefore it makes some sense to
characterize a failure to reach a decision within 24 hours as
prejudicing the claimant's ability to travel.  But one the 24-hour
standard is abandoned, the factors relief upon by the court of appeals
manifestly become completely irrelevant.  Once it is conceded that the
remission process may extend beyond the day or two necessary for the
claimant to post a bond for his car or otherwise obtain substitute
transportation, further delay does not leave him "stranded at the
border" or otherwise interfere with his ability to travel.

   /35/ Respondent stated to the Customs officer at the time of the
seizure that it would be "no problem" for him to obtain the funds to
secure release of the car (Tr. 157, 159).  Moreover, respondent
testified that he was familiar with Customs "informal entry"
procedures that would have required him to post a bond in the amount
of the value of the car in order to be allowed to go on his way (Tr.
67).

   /36/ The reasons for the delay thus far have never been at issue in
proceedings in the district court, and therefore they are not
reflected in the record.  Nonetheless, the court of appeals found it
appropriate to "suggest" to the district court that "(i)t appears
that, at the time of the seizure, Customs may have had all of the
facts at hand necessary for an expeditious determination of the
petition" (Pet. App. 11a).

   /37/ Thus, despite the court of appeals' suggestion that its rule
may be restricted to the seizure of automobiles, the logical
implication is that the due process right created below would apply
equally to the processing of remission petitions in connection with
the seizure of any other goods.

   /38/ The error of the court of appeals' decision may perhaps most
clearly be demonstrated by considering what the analogous rule would
be as applied to seizure of the person -- an event surely as
inconvenient to the individual as the seizure of his automobile.
Under such a rule, an individual who had been arrested on probable
cause to believe he had committed a crime and who asked the prosecutor
to consider a plea bargain or dismissal of all charges could not be
prosecuted at all if the prosecutor failed to give a final response to
such a proposal within the short time frame suggested by the decision
below.  No one would seriously propose such a rule in the case of
arrests, and we are at a loss to understand why it should apply to
seizures of property.