DUSENBERY v. UNITED STATES

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161 OCTOBER TERM, 2001
Syllabus
DUSENBERY v. UNITED STATES
certiorari to the united states court of appeals for
the sixth circuit
No. 00–6567. Argued October 29, 2001—Decided January 8, 2002
While petitioner was in prison on federal drug charges, the Federal Bu-
reau of Investigation (FBI) began an administrative process to forfeit
cash that officers seized when they executed a search warrant for the
residence where petitioner was arrested. The statute in effect at the
time required the agency, inter alia, to send written notice of the sei-
zure and applicable forfeiture procedures to each party who appeared
to have an interest in the property. 19 U. S. C. § 1607(a). The FBI
sent such notice by certified mail addressed to petitioner care of the
federal correctional institution (FCI) where he was incarcerated; to the
address of the residence where he was arrested; and to an address in
the town where his mother lived. It received no response in the time
allotted and turned over the cash to the United States Marshals Service.
Subsequently, petitioner moved in the District Court under Federal
Rule of Criminal Procedure 41(e) for return of all the property and funds
seized in his criminal case. The court denied the motion. The Sixth
Circuit vacated and remanded, holding that the motion should have been
construed as a civil complaint seeking equitable relief for a due process
challenge to the adequacy of the notice. On remand, the District Court
presided over a telephone deposition of an FCI officer who stated that
he signed the certified mail receipt for the FBI’s notice to petitioner and
testified about the FCI’s procedures for accepting, logging, and deliver-
ing certified mail addressed to inmates. The court granted the Govern-
ment summary judgment, ruling that its sending of notice by certified
mail to petitioner’s place of incarceration satisfied his due process rights.
The Sixth Circuit affirmed.
Held: The FBI’s notice of the cash forfeiture satisfied due process. The
Fifth Amendment’s Due Process Clause entitles individuals whose prop-
erty interests are at stake to “notice and an opportunity to be heard.”
United States v. James Daniel Good Real Property, 510 U. S. 43, 48.
The straightforward reasonableness under the circumstances test of
Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313, not
the balancing test approach of Mathews v. Eldridge, 424 U. S. 319, 335,
supplies the appropriate analytical framework for the due process analy-
sis. This Court has never viewed Mathews as announcing an all-
embracing test for deciding due process claims, but has regularly turned

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Syllabus
to Mullane when confronted with questions regarding the adequacy of
the method used to give notice. In Mullane, notice by publication was
constitutionally defective as to known persons whose whereabouts were
also known, because it was not “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the ac-
tion and afford them an opportunity to present their objections.” 339
U. S., at 314, 319. The FBI’s notice, sent by certified mail to a prison
with procedures for delivering mail to the inmate, was so calculated.
Contrary to petitioner’s argument, Mennonite Bd. of Missions v.
Adams, 462 U. S. 791, 796–797, says that a State must attempt to pro-
vide actual notice, not that it must provide actual notice. And none of
this Court’s cases cited by either party have required actual notice in
proceedings such as this. Instead, the Government has been allowed
to defend the “reasonableness and hence the constitutional validity of
any chosen method . . . on the ground that it is in itself reasonably
certain to inform those affected.” Mullane, supra, at 315. The Due
Process Clause does not require heroic efforts by the Government to
assure the notice’s delivery, nor does it require the Government to sub-
stitute petitioner’s proposed procedures that would have required veri-
fication of receipt for those in place at the FCI while he was there.
Even if the current procedures improve delivery to some degree, this
Court has never held that improvements in the reliability of new proce-
dures necessarily demonstrate the infirmity of those that were re-
placed. Pp. 167–173.
223 F. 3d 422, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a
dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined,
post, p. 173.
Allison M. Zieve, by appointment of the Court, 532 U. S.
940, argued the cause for petitioner. With her on the briefs
was Alan B. Morrison.
Jeffrey P. Minear argued the cause for the United States.
With him on the brief were Solicitor General Olson, Assist-
ant Attorney General Chertoff, Deputy Solicitor General
Dreeben, and William C. Brown.*
*Julia M. Carpenter filed a brief for the DKT Liberty Project as amicus
curiae urging reversal.

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163 Cite as: 534 U. S. 161 (2002)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
This case concerns the adequacy of the means employed
by the Federal Bureau of Investigation (FBI) to provide
notice to a federal prisoner of his right to contest the ad-
ministrative forfeiture of property seized during the exe-
cution of a search warrant for the residence where he was
arrested.
In April 1986, officers of the FBI arrested petitioner Larry
Dean Dusenbery at a house trailer in Atwater, Ohio. Later
that day, they obtained and executed a search warrant, seiz-
ing drugs, drug paraphernalia, several firearms, a ballistic
knife, an automobile registered in the name of petitioner’s
stepmother, and various other items of personal property.
Among these was $21,939 in cash, $394 of which had been
found on petitioner’s person, $7,500 in the inside pocket of a
coat in the dining area and $14,045 in a briefcase found on
the floor in the living room.
Two months later, petitioner pleaded guilty in the United
States District Court for the Northern District of Ohio to a
charge of possession with intent to distribute 813 grams of
cocaine in violation of 21 U. S. C. § 841(a)(1) (1988 ed.). He
was sentenced to 12 years of imprisonment followed by 6
years of special parole. Two years later, the United States,
no longer expecting the firearms and knife to be used as evi-
dence in a future prosecution, and unable to determine their
rightful owner, sought and obtained an order from the Dis-
trict Court authorizing the FBI to destroy them. The FBI
also began the process of administratively forfeiting the cash
and the automobile.
At this time, designated agents of the FBI were allowed
to dispose of property seized pursuant to the Controlled Sub-
stances Act, 84 Stat. 1242, 21 U. S. C. § 801 et seq. (1988 ed.),
without initiating judicial proceedings if the property’s value
did not exceed $100,000, and if no person claimed an interest

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164 DUSENBERY v. UNITED STATES
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in the property within 20 days after the Government pub-
lished notice of its intention to forfeit and sell or otherwise
dispose of it. § 881(a)(6) (subjecting to forfeiture all pro-
ceeds traceable to an unlawful exchange for a controlled sub-
stance and all moneys, negotiable instruments, and securities
traceable to such an exchange); § 881(d) (providing that laws
relating to summary and judicial forfeiture for violation of
the customs laws apply to controlled substance forfeitures);
19 U. S. C. §§ 1607–1609 (1988 ed.) (setting forth customs law
requirements for summary forfeitures).
To effect such a forfeiture, the statute required the agency
to send written notice of the seizure together with informa-
tion on the applicable forfeiture procedures to each party
who appeared to have an interest in the property. § 1607(a).
It also required the publication for at least three successive
weeks of a similar notice in a newspaper of general circula-
tion in the judicial district in which the forfeiture proceeding
was brought. Ibid.; 21 CFR § 1316.75 (1988). The FBI
sent letters of its intention to forfeit the cash by certified
mail addressed to petitioner care of the Federal Correctional
Institution (FCI) in Milan, Michigan, where he was then in-
carcerated; to the address of the residence where petitioner
was arrested; and to an address in Randolph, Ohio, the town
where petitioner’s mother lived. App. 21–23. It placed the
requisite legal notice in three consecutive Sunday editions of
the Cleveland Plain Dealer. Id., at 24–30. Similar prac-
tices were followed with respect to the proposed forfeiture
of the car. Brief for Petitioner 3. The FBI received no re-
sponse to these notices within the time allotted, and so de-
clared the items administratively forfeited. Ibid.; App. 15.
An FBI agent turned over the cash to the United States
Marshals Service on December 13, 1988. Id., at 16–17.
Nearly five years later, petitioner moved in the District
Court pursuant to Rule 41(e) of the Federal Rules of Crimi-

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Opinion of the Court
nal Procedure 1 seeking return of all the property and funds
seized in his criminal case. The United States responded
that all of the items of petitioner’s property that were not
used in his drug business had been returned to him and
that other items seized had long since been forfeited to
the Government. The District Court denied the motion,
reasoning that any challenge to the forfeiture proceed-
ings should have been brought in a civil action, not as a mo-
tion ancillary to petitioner’s now-closed criminal case. Case
No. 5:95–CV–1872 (ND Ohio, Oct. 5, 1995).
The Court of Appeals for the Sixth Circuit vacated the
District Court’s judgment and remanded for further pro-
ceedings. Judgt. order reported at 97 F. 3d 1451 (1996),
App. 31. The Court of Appeals agreed that petitioner could
not pursue his claim through a Rule 41(e) motion since the
criminal proceedings against him had been completed. It
held that the District Court abused its discretion, however,
by not construing the motion as a civil complaint seeking
equitable relief for a due process challenge to adequacy of
the notice of the administrative forfeiture.
Following remand, the District Court entered an order
allowing discovery and subsequently presided over a tele-
phone deposition of James Lawson, an Inmate Systems Offi-
cer who began to work in the mailroom at FCI Milan early
in 1988 and who had submitted an affidavit in the case.
Lawson testified that he signed the certified mail receipt for
the FBI’s notice to petitioner regarding the cash. App. 49–
50. He also testified about the procedures within FCI Milan
for accepting, logging, and delivering certified mail ad-
dressed to inmates. Id., at 50. Lawson explained that the
1 Rule 41(e) provides that “[a] person aggrieved by an unlawful search
and seizure or by the deprivation of property may move the district court
for the district in which the property was seized for the return of the
property on the ground that such person is entitled to lawful possession
of the property.”

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Opinion of the Court
procedure would have been for him to log the mail in, for
petitioner’s “Unit Team” to sign for it, and for it then to be
given to petitioner. Id., at 51. But he said that a paper
trail no longer existed because the Bureau of Prisons (BOP)
had a policy of holding prison logbooks for only one year
after they were closed.2 Id., at 51–52.
Both parties moved for summary judgment. The District
Court ruled that the Government’s sending of notice by cer-
tified mail to petitioner’s place of incarceration satisfied his
due process rights as to the cash. Case No. 5:95–CV–1872
(ND Ohio, Jan. 19, 1999). The Court of Appeals affirmed.
223 F. 3d 422 (CA6 2000). Citing Mullane v. Central Han-
over Bank & Trust Co., 339 U. S. 306, 314 (1950), it held that
the Government’s notice of the cash forfeiture comported
with due process even in the absence of proof that the mail
actually reached petitioner. 223 F. 3d, at 424.
Because Courts of Appeals have reached differing conclu-
sions about what the Due Process Clause requires of the
United States when it seeks to provide notice to a federal
inmate of its intention to forfeit property in which the in-
mate appears to have an interest,3 we granted certiorari to
2 In a letter received before argument, the Solicitor General advised us
that the BOP now requires the retention of certified mail logbooks for 11
years in accordance with its implementation of Government record reten-
tion policies under the Federal Records Act of 1950, 44 U. S. C. § 2901
et seq. (1994 ed.).
3 See, e. g., Whiting v. United States, 231 F. 3d 70, 76 (CA1 2000) (due
process satisfied by Government’s sending certified letter to inmate at his
prison facility absent proof that mail delivery was unreliable); Yeung
Mung Weng v. United States, 137 F. 3d 709, 715 (CA2 1998) (mailed notice
to custodial institution inadequate unless in fact delivered to the intended
recipient); United States v. One Toshiba Color Television, 213 F. 3d 147,
155 (CA3 2000) (en banc) (Government bears burden of demonstrating the
existence of procedures that are reasonably calculated to ensure that ac-
tual notice will be given); United States v. Minor, 228 F. 3d 352, 358 (CA4
2000) (endorsing One Toshiba Color Television, supra); United States v.
Woodall, 12 F. 3d 791, 794–795 (CA8 1993) (requiring actual notice to de-
fendant or his counsel of agency’s intent to forfeit property); United States

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Opinion of the Court
consider the adequacy of the FBI’s notice to petitioner of its
intended forfeiture of the cash. 531 U. S. 1189 (2001). We
now affirm the judgment below.
The Due Process Clause of the Fifth Amendment prohibits
the United States, as the Due Process Clause of the Four-
teenth Amendment prohibits the States, from depriving any
person of property without “due process of law.” From
these “cryptic and abstract words,” Mullane, supra, at 313,
we have determined that individuals whose property inter-
ests are at stake are entitled to “notice and an opportunity
to be heard.” United States v. James Daniel Good Real
Property, 510 U. S. 43, 48 (1993).
Petitioner urges that, in analyzing his due process claim,
we follow the approach articulated in Mathews v. Eldridge,
424 U. S. 319 (1976). Brief for Petitioner 12; Reply Brief for
Petitioner 7. There we spoke of a balancing of three factors:
(1) the private interest that will be affected by the official
action, (2) a cost-benefit analysis of the risks of an erroneous
deprivation versus the probable value of additional safe-
guards, and (3) the Government’s interest, including the
function involved and any fiscal and administrative burdens
associated with using different procedural safeguards. 424
U. S., at 335. The United States, on the other hand, urges
us to apply the method set forth in Mullane, supra, which
espouses a more straightforward test of reasonableness
under the circumstances. Brief for United States 27.
We think Mullane supplies the appropriate analytical
framework. The Mathews balancing test was first con-
ceived in the context of a due process challenge to the
adequacy of administrative procedures used to terminate
Social Security disability benefits. Although we have since
invoked Mathews to evaluate due process claims in other
v. Real Property, 135 F. 3d 1312, 1315 (CA9 1998) (adequate to send sum-
mons by certified mail to jail with procedures for distributing mail directly
to the inmate); United States v. Clark, 84 F. 3d 378, 381 (CA10 1996) (suffi-
cient to send certified mail to prisoner at jail where he was located).

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contexts, see Medina v. California, 505 U. S. 437, 444 (1992)
(citing cases), we have never viewed Mathews as announcing
an all-embracing test for deciding due process claims. Since
Mullane was decided, we have regularly turned to it when
confronted with questions regarding the adequacy of the
method used to give notice. See, e. g., New York City v.
New York, N. H. & H. R. Co., 344 U. S. 293, 296 (1953); Walker
v. City of Hutchinson, 352 U. S. 112, 115 (1956); Schroeder
v. City of New York, 371 U. S. 208, 210 (1962); Robinson v.
Hanrahan, 409 U. S. 38, 39 (1972) (per curiam); Greene v.
Lindsey, 456 U. S. 444, 448 (1982); Mennonite Bd. of Mis-
sions v. Adams, 462 U. S. 791, 797 (1983); Tulsa Professional
Collection Services, Inc. v. Pope, 485 U. S. 478, 484 (1988).
We see no reason to depart from this well-settled practice.
Mullane itself involved a due process challenge to the con-
stitutional sufficiency of notice to beneficiaries on judicial set-
tlement of accounts by the trustee of a common trust fund
established under state law. A trustee of such a common
trust fund sought a judicial decree settling its accounts as
against all parties having an interest in the fund. The only
notice of the application for this decree was by court-ordered
publication in a newspaper for four successive weeks. 339
U. S., at 309–310. We held that this notice was constitution-
ally defective as to known persons whose whereabouts were
also known, because it was not “reasonably calculated, under
all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Id., at 314, 319; see also id., at
315 (“The means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to
accomplish it”).
Was the notice in this case “reasonably calculated under
all the circumstances” to apprise petitioner of the pendency
of the cash forfeiture? The Government here carried its
burden of showing the following procedures had been used
to give notice. The FBI sent certified mail addressed to

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Opinion of the Court
petitioner at the correctional facility where he was incarcer-
ated. At that facility, prison mailroom staff traveled to the
city post office every day to obtain all the mail for the institu-
tion, including inmate mail. App. 36. The staff signed for
all certified mail before leaving the post office. Once the
mail was transported back to the facility, certified mail was
entered in a logbook maintained in the mailroom. Id., at 37.
A member of the inmate’s Unit Team then signed for the
certified mail to acknowledge its receipt before removing it
from the mailroom, and either a Unit Team member or an-
other staff member distributed the mail to the inmate during
the institution’s “mail call.” Id., at 37, 51.
Petitioner does not seriously contest the FBI’s use of the
postal service to send its certified letter to him, a method
our cases have recognized as adequate for known addressees
when we have found notice by publication insufficient.4
Tr. of Oral Arg. 11 (“This case is not really a mailed notice
case because the procedures that are inadequate are the pro-
cedures that happened after the mailing”). Instead, he ar-
gues that the notice was insufficient because due process
generally requires “actual notice” to interested parties prior
to forfeiture, which he takes to mean actual receipt of notice.5
Brief for Petitioner 8, 15, 18–19; see also Tr. of Oral Arg. 23.
4 E. g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 319
(1950) (noting that the mails “are recognized as an efficient and inexpen-
sive means of communication”); Walker v. City of Hutchinson, 352 U. S.
112, 116 (1956); Schroeder v. City of New York, 371 U. S. 208, 214 (1962);
Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 798 (1983); Tulsa
Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988).
5 The Government’s brief notes that the term “actual notice” is not free
from ambiguity as used by this Court in cases such as Tulsa, supra, and
by other courts. Brief for United States 20, n. 12 (stating that the term
has been used both to distinguish notice by mail from notice by publication
and to refer to the actual receipt of the notice by the intended recipient);
see also Black’s Law Dictionary 1087 (7th ed. 1999) (defining “actual no-
tice” as “[n]otice given directly to, or received personally by, a party”).
We think the best way to avoid this confusion is to equate, as petitioner
does, “actual notice” with “receipt of notice.”

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For this proposition he cites Mennonite Bd. of Missions, 462
U. S., at 796–797. But the only sentence in Mennonite ar-
guably supporting petitioner’s view appears in a footnote.
That sentence reads: “Our cases have required the State to
make efforts to provide actual notice to all interested parties
comparable to the efforts that were previously required only
in in personam actions.” Id., at 797, n. 3. It does not say
that the State must provide actual notice, but that it must
attempt to provide actual notice. Since Mennonite con-
cluded that mailed notice of a pending tax sale to a mortga-
gee of record was constitutionally sufficient, id., at 799, the
sentence is at best inconclusive dicta for the view peti-
tioner espouses.
We note that none of our cases cited by either party has
required actual notice in proceedings such as this. Instead,
we have allowed the Government to defend the “reasonable-
ness and hence the constitutional validity of any chosen
method . . . on the ground that it is in itself reasonably cer-
tain to inform those affected.” Mullane, 339 U. S., at 315.
Petitioner argues that because he was housed in a federal
prison at the time of the forfeiture, the FBI could have made
arrangements with the BOP to assure the delivery of the
notice in question to him. Brief for Petitioner 17. But it is
hard to see why such a principle would not also apply, for
example, to members of the Armed Forces both in this coun-
try and overseas. Undoubtedly the Government could make
a special effort in any case ( just as it did in the movie “Sav-
ing Private Ryan”) to assure that a particular piece of mail
reaches a particular individual who is in one way or another
in the custody of the Government. It could, for example,
have allowed petitioner to make an escorted visit to the post
office himself in order to sign for his letter. But the Due
Process Clause does not require such heroic efforts by the
Government; it requires only that the Government’s effort
be “reasonably calculated” to apprise a party of the pendency
of the action; “ ‘[t]he criterion is not the possibility of conceiv-

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able injury but the just and reasonable character of the
requirements . . . .’ ” Mullane, supra, at 315.
Nor does the Due Process Clause require the Government
to substitute the procedures proposed by petitioner for those
in place at FCI Milan in 1988. See Brief for Petitioner 17
(suggesting that the Government could send the notice to a
prison official with a request that a prison employee watch
the prisoner open the notice, cosign a receipt, and mail the
signed paper back to the agency from which it came). The
suggested procedures would work primarily to bolster the
Government’s ability to establish that the prisoner actually
received notice of the forfeiture, a problem petitioner per-
ceives to be the FCI Milan’s procedures’ primary defect.
See Tr. of Oral Arg. 15 (explaining that the problem is that
“[t]he procedure doesn’t require verification of delivery”).
But as we have noted above, our cases have never required
actual notice. The facts of the present case, moreover, illus-
trate the difficulty with such a requirement. The letter in
question was sent to petitioner in 1988, but the claim of im-
proper notice was first asserted in 1993. What might be
reasonably fresh in the minds of all parties had the question
arisen contemporaneously will surely be stale five years
later. The issue would often turn on disputed testimony as
to whether the letter was in fact delivered to petitioner.
The title to property should not depend on such vagaries.
Justice Ginsburg’s dissent does not contend, as peti-
tioner does, that due process could be satisfied in this case
only with actual notice. It makes an alternative argument
that the FBI’s notice was constitutionally flawed because it
was “ ‘substantially less likely to bring home notice’ than a
feasible substitute,” post, at 174 (quoting Mullane, supra, at
314–315)—namely, the methods used currently by the BOP,
which generally require an inmate to sign a logbook acknowl-
edging delivery, see post, at 180, 181–182 (describing current
BOP procedures and noting the practicability of BOP Unit
Team member’s “linger[ing]” a little longer to secure an in-

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mate’s signature). Just how requiring the end recipient to
sign for a piece of mail substantially improves the reliability
of the delivery procedures leading up to that person’s re-
ceipt, Justice Ginsburg’s dissent does not persuasively ex-
plain. Nor is there any probative evidence to this effect in
the record.6
Even if one accepts that the BOP’s current procedures im-
prove delivery to some degree, our cases have never held
that improvements in the reliability of new procedures nec-
essarily demonstrate the infirmity of those that were re-
placed. Other areas of the law, moreover, have for strong
policy reasons resisted rules crediting the notion that, “ ‘be-
cause the world gets wiser as it gets older, therefore it was
foolish before.’ ” Advisory Committee’s Notes on Fed. Rule
Evid. 407, 28 U. S. C. App., p. 864 (1994 ed.) (quoting Hart v.
Lancashire & Yorkshire R. Co., 21 Law Times Rep. (n. s.)
261, 263 (1869), and explaining that Rule 407’s prohibition
against use of subsequent remedial measures to prove fault
attempts to avoid discouraging persons from taking steps to
further safety). In this case, we believe the same principle
supports our conclusion that the Government ought not be
penalized and told to “try harder,” post, at 180, simply be-
cause the BOP has since upgraded its policies.
Here, the use of the mail addressed to petitioner at the
penitentiary was clearly acceptable for much the same rea-
son we have approved mailed notice in the past. Short of
allowing the prisoner to go to the post office himself, the
remaining portion of the delivery would necessarily depend
on a system in effect within the prison itself relying on
prison staff. We think the FBI’s use of the system de-
6 To try to show that there is a “significant risk,” Brief for Petitioner 14,
that notice mailed to a prison will not reach an inmate, petitioner has cited
several cases from various Courts of Appeals involving postforfeiture chal-
lenges. As the Government argues, these cases, like petitioner’s own suit
here, involve only claims that notice was not received, not findings of
nonreceipt.

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Ginsburg, J., dissenting
scribed in detail above was “reasonably calculated, under all
the circumstances, to apprise [petitioner] of the pendency of
the action.” Mullane, 339 U. S., at 314. Due process re-
quires no more.
The judgment of the Court of Appeals is
Affirmed.
Justice Ginsburg, with whom Justice Stevens,
Justice Souter, and Justice Breyer join, dissenting.
“ ‘The fundamental requisite of due process of law is the
opportunity to be heard.’ Grannis v. Ordean, 234 U. S. 385,
394 [(1914)]. This right to be heard has little reality or
worth unless one is informed that the matter is pending and
can choose for himself whether to appear or default, acqui-
esce or contest.” Mullane v. Central Hanover Bank &
Trust Co., 339 U. S. 306, 314 (1950). Today’s decision dimin-
ishes the safeguard of notice, affording an opportunity to be
heard, before one is deprived of property. As adequate to
notify prisoners that the Government seeks forfeiture of
their property, the Court condones a procedure too lax to
reliably ensure that a prisoner will receive a legal notice sent
to him. The Court does so despite the Government’s total
control of a prison inmate’s location, and the evident feasibil-
ity of tightening the notice procedure “as [would] one desir-
ous of actually informing [the prisoner].” Id., at 315. Be-
cause the Court, without warrant in fact or law, approves a
procedure “less likely to bring home notice” than a feasible
alternative, ibid., I dissent.
I
The Court correctly identifies the foundational case on rea-
sonable notice as a due process requirement, Mullane v. Cen-
tral Hanover Bank & Trust Co., and the core instruction:
“[D]eprivation of . . . property by adjudication [must] be pre-
ceded by notice and opportunity for hearing appropriate
to the nature of the case.” Id., at 313. Further, the Court
recognizes that petitioner Dusenbery’s complaint does not

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174 DUSENBERY v. UNITED STATES
Ginsburg, J., dissenting
rest on the Government’s use of the postal service to dis-
patch, from the Federal Bureau of Investigation (FBI) to the
Federal Correctional Institution (FCI) in Milan, Michigan,
notice of an impending forfeiture. Ante, at 169. Were this
case about the adequacy of the transmission of information
from the FBI to the FCI, swift summary judgment for the
Government, I agree, would be in order. But the case we
confront is not about notice to the prison, the warden, or the
prison mailroom personnel. It is about the adequacy of no-
tice to an individual held in the Government’s custody, a pris-
oner whose location the Government at all times knows and
tightly controls.
What process did the Government provide for getting the
FBI’s forfeiture notice from the FCI’s mailroom to prisoner
Dusenbery’s cell? On that key transmission the record is
bare. It contains no statement by FCI Milan’s warden con-
cerning any set of safeguards routinely employed. The Gov-
ernment presented only the affidavit and telephone deposi-
tion of James Curtis Lawson, an “Inmate Systems Officer”
assigned to FCI Milan’s mailroom. App. 36–37, 46–53. On
the mailroom to prisoner transmission, Lawson said simply
this: “The [Housing] Unit Team member or a correctional
staff member will [after signing the mailroom logbook] dis-
tribute the mail to the inmates during the institution’s mail
call.” App. 37. Lawson did not know whether notice was
in fact delivered to Dusenbery. Nor would he have such
knowledge or information regarding any other prisoner. As
Lawson clarified on deposition, he was not acquainted with
particular practices or systems governing mail once it left
the mailroom, because that was not “pertinent to [his] de-
partment.” App. 52. According to Lawson, “[t]hat would
be case workers’ responsibility,” ibid.; but no caseworker
filled in the evidentiary gap.
Was the prison to prisoner mode of transmission described
by Officer Lawson “substantially less likely to bring home
notice” than a feasible substitute that would place no “im-

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175 Cite as: 534 U. S. 161 (2002)
Ginsburg, J., dissenting
practical obstacles” in the Government’s way? Mullane,
339 U. S., at 314–315. The answer, in my judgment, is cer-
tainly yes. Before detailing why that is my view, I will ex-
amine what the Court does not elaborate: In full scope, what
does Mullane, the foundational case, teach about the nexus
to the forum and notice to interested persons necessary to
make an adjudication fair and workable, and thus compatible
with due process? 1
II
Mullane was a proceeding in which the trustee of a com-
mon trust fund sought from a New York Surrogate Court an
order settling all questions concerning the management of
the common fund during a statutorily specified accounting
period.2 Many of the beneficiaries resided outside New
York. Could a New York court adjudicate such a case de-
spite the large numbers of nonresidents affected? And if a
New York court could entertain the case, would notice by
publication, for which the New York statute provided, suffice
to inform beneficiaries of the proceeding? The Court recog-
nized that these were separate questions calling for dis-
crete inquiries.
New York had jurisdiction to adjudicate despite the dis-
persion of trust beneficiaries among several States, the
Court explained, because the trust “exist[ed] by the grace of
[New York’s] laws and [was] administered under the supervi-
sion of its courts.” Id., at 313. If New York could not take
1 In briefing this case, the Government questioned whether it is “permis-
sible for courts to approach the due process issue here as a matter of what
is ‘fair’ or workable.” Brief for United States 31. Any doubt on that
score should be dispelled. Mullane carefully explained that the due proc-
ess requirement at stake is not merely permissive, it demands that both
fairness and practicality be taken into account. See 339 U. S., at 313–320.
2 The decree sought by the Mullane trustee would terminate “every
right which beneficiaries would otherwise have against the trust company,
either as trustee of the common fund or as trustee of any individual trust,
for improper management of the common trust fund during the period
covered by the accounting.” Id., at 311.

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176 DUSENBERY v. UNITED STATES
Ginsburg, J., dissenting
hold of the case, no other State would be better situated to
do so. Without a forum for periodic settlement of the trust-
ee’s accounts, the common fund device would be unworkable.
Under the circumstances, New York’s interest “in providing
means [periodically] to close trusts [of the kind involved in
Mullane was] . . . so insistent and rooted in custom as to
establish beyond doubt the right of its courts to determine
the interests of all claimants.” Ibid.
Having thus settled the question of the nexus between the
forum and the controversy necessary to establish jurisdiction
to adjudicate, the Court turned to the means by which poten-
tially affected persons must be apprised of the proceeding:
“Quite different from the question of a state’s power to dis-
charge trustees,” the Court began, “is that of the [full] op-
portunity it must give beneficiaries to contest.” Ibid.
“Personal service of written notice,” the Court acknowl-
edged, “is the classic form of notice always adequate in any
type of proceeding.” Ibid. But that classic form, the Court
next developed, “has not in all circumstances been regarded
as indispensable to the process due to residents, and it has
more often been held unnecessary as to nonresidents.” Id.,
at 314. For beneficiaries whose interests or addresses were
unknown to the trustee, notice by publication would do, faute
de mieux. Id., at 318. But “[a]s to known present benefi-
ciaries of known place of residence,” Mullane instructed, no-
tice by publication would not do. Ibid. Personal service on
“the large number of known resident or nonresident benefi-
ciaries,” however, would “seriously interfere with the proper
administration of the fund.” Id., at 318–319 (delay as well
as expense rendered such service impractical). For that
group, the Court indicated, “ordinary mail to the record ad-
dresses,” which might be sent with periodic income remit-
tances, was the minimal due process requirement. Id., at
318. The risk that notice would not reach even all known
beneficiaries, the Court reasoned, was justifiable, for the
common trust

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177 Cite as: 534 U. S. 161 (2002)
Ginsburg, J., dissenting
“presupposes a large number of small interests. The
individual interest does not stand alone but is identical
with that of a class. The rights of each in the integrity
of the fund and the fidelity of the trustee are shared by
many other beneficiaries. Therefore notice reasonably
certain to reach most of those interested in objecting is
likely to safeguard the interests of all, since any objec-
tion sustained would inure to the benefit of all.” Id.,
at 319.
In a series of cases following Mullane, the Court similarly
condemned notice by publication or posting as not reasonably
calculated to inform persons with known interests in a pro-
ceeding. See Tulsa Professional Collection Services, Inc.
v. Pope, 485 U. S. 478 (1988) (notice by publication inadequate
as to estate creditors whose identities were known or ascer-
tainable by reasonably diligent efforts); Mennonite Bd. of
Missions v. Adams, 462 U. S. 791 (1983) (notice by publica-
tion and posting inadequate to inform real property mortga-
gee of a proceeding to sell the mortgaged property for non-
payment of taxes); Greene v. Lindsey, 456 U. S. 444 (1982)
(posting summons on door of a tenant’s apartment provided
inadequate notice of eviction proceedings); Schroeder v. City
of New York, 371 U. S. 208 (1962) (publication plus signs
posted on trees inadequate to notify property owners of con-
demnation proceedings); Walker v. City of Hutchinson, 352
U. S. 112 (1956) (publication as sole notice to property owners
inadequate to inform them of condemnation proceedings).
In these cases, the Court identified mail service as a satisfac-
tory supplement to statutory provisions for publication or
posting. But the decisions, it bears note, do not bless mail
notice as an adequate-in-all-circumstances substitute for per-
sonal service. They home in on the particular proceedings
at issue and do not imply that in the mine-run civil action, a
plaintiff may dispense with the straightforward, effective
steps required to secure proof of service or waiver of formal
service. See Fed. Rules Civ. Proc. 4(d), 4(l).

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178 DUSENBERY v. UNITED STATES
Ginsburg, J., dissenting
III
Returning to the instant case and the question Mullane
identified as pivotal: Was the mail delivery procedure at FCI
Milan “substantially less likely to bring home notice [to
prison inmates]” than a “feasible . . . substitut[e]”? 339
U. S., at 315; cf. Mennonite Bd., 462 U. S., at 803 (O’Connor,
J., dissenting) (ability of “members of a particular class . . .
to safeguard their interests . . . must be taken into account
when we consider the ‘totality of the circumstances,’ as re-
quired by Mullane”). Prisoner Dusenbery’s situation dif-
fers dramatically from that of persons for whom we sug-
gested ordinary mail service, without more, would suffice.
Those differences, I am persuaded, are dispositive.
A beneficiary not in receipt of actual notice in Mullane
would nevertheless be protected, in significant measure, by
beneficiaries who did receive notice and might have advanced
objections shared by the large class of similarly situated
persons. Moreover, the Surrogate’s Court was obliged to
review the trustee’s accounting before approving it. In
contrast, Dusenbery’s alleged ownership interest stands
alone. No others are similarly situated. Dusenbery claims
that the money the FBI seized at his home was not traceable
to an unlawful exchange for a controlled substance. See 21
U. S. C. § 881(a)(6) (1988 ed.). Absent notice of the forfeiture
proceeding, Dusenbery had no opportunity to present that
claim before an impartial forum. See 19 U. S. C. § 1609 (1988
ed.) (if no claim is filed within the prescribed time, the Gov-
ernment shall declare the property forfeited).
Nor can any undue hardship justify a less than careful en-
deavor actually to inform Dusenbery that his property is the
subject of an impending forfeiture. The agency responsible
for giving notice of the forfeiture, here, the FBI, is part of
the same Government as the prisoner’s custodian, the Bu-
reau of Prisons (BOP). As the Second Circuit observed,
“[w]hen [a federal] investigating agency [seeks] a prisoner’s
cooperation in testifying against some important wrongdoer,

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179 Cite as: 534 U. S. 161 (2002)
Ginsburg, J., dissenting
it has no difficulty delivering the message in a manner that
insures receipt.” Weng v. United States, 137 F. 3d 709, 715
(1998). Similarly, the federal forfeiting agency should en-
counter no difficulty in “secur[ing] the [BOP’s] cooperation in
assuring that the notice will be delivered to the [prisoner]
and that a reliable record of the delivery will be created.”
Ibid.
A further factor counsels care to inform a prisoner that
his Government is proceeding against him or his property.
A prisoner receives his mail only through the combined good
offices of two bureaucracies which he can neither monitor nor
control: The postal service must move the mail from the
sender to the prison, and the prison must then move the mail
from the prison gates to the prisoner’s hands. That the first
system can be relied upon does not imply that the second is
acceptable. See United States v. One Toshiba Color Televi-
sion, 213 F. 3d 147, 154 (CA3 2000); accord, Weng, 137 F. 3d,
at 715; cf. Houston v. Lack, 487 U. S. 266, 271 (1988) (Court
recognized that “the pro se prisoner has no choice but to
entrust the forwarding of [mail] to prison authorities whom
he cannot control or supervise and who may have every in-
centive to delay”; Court therefore held that pro se prisoner’s
notice of appeal must be regarded as “filed” when delivered
to prison authorities for mailing). In the cases in which we
indicated that mail notice would be sufficient, by contrast,
receipt hinged only upon the dependability of the postal
service, “upon which prudent men will ordinarily rely in the
conduct of important affairs.” Greene, 456 U. S., at 455; see
also Mullane, 339 U. S., at 319 (“[T]he mails today are recog-
nized as an efficient and inexpensive means of communica-
tion.”); United States Postal Service, 2000 Comprehensive
Statement on Postal Operations 91 (Table 5.1) (on-time deliv-
ery rate of first class mail between 87% and 94%).
The majority asserts that “[t]he Government here carried
its burden of showing the . . . procedures . . . used to give
notice.” Ante, at 168. As to the prison to prisoner trans-

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180 DUSENBERY v. UNITED STATES
Ginsburg, J., dissenting
mission, that assertion is groundless, for the Government
carried no burden whatever. It introduced nothing to show
the reasonableness or reliability of the mailroom to cell deliv-
ery at FCI Milan at the time of the forfeiture in question.
See supra, at 174.
Beyond doubt, the Government can try harder, without
undue inconvenience or expense. Indeed, it now does so: As
the Government informed the Court on brief, prison employ-
ees currently “must not only record the receipt of the certi-
fied mail and its distribution, but the prisoner himself must
sign a log book acknowledging delivery.” Brief for United
States 24 (citing BOP Program Statement 5800.10.409,
5800.10.409A (Nov. 3, 1995)). If a prisoner refuses to sign, a
prison officer must document that refusal. BOP Operations
Memorandum 035–99 (5800), p. 2 (July 19, 1999). The Gov-
ernment noted additionally that administrative forfeiture no-
tices, along with “appropriately marked congressional, judi-
cial, law enforcement, and attorney correspondence,” are
now marked “special mail,” to be “opened only in the in-
mate’s presence.” Brief for United States 29, n. 19 (citing
28 CFR § 540.12(c) (2001) and BOP Program Statement
5800.10.35).
The Government, of course, should not be “penalized” for
upgrading its policies. See ante, at 172. It would be im-
proper to brand the BOP’s 1988 procedures deficient simply
because those procedures have since been improved. Nev-
ertheless, the new rules show that substantial improvements
in reliability could have been had, in 1988 and years before,
at minimal expense and inconvenience. Nor will it do to
label these efforts a matter of executive grace. They unde-
niably provide a “feasible” means “substantially [more] likely
to bring home notice” than FCI Milan’s prior uncertain mail-
room to prison cell practice. See Mullane, 339 U. S., at 315. 3
3 The majority suggests that it is necessary to “explain” how “requir-
ing the end recipient to sign for a piece of mail substantially improves
the reliability of the delivery procedures leading up to that person’s

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181 Cite as: 534 U. S. 161 (2002)
Ginsburg, J., dissenting
The Government would assign to Dusenbery the burden
of showing that the mail delivery system inside the prison
was unreliable at the relevant time. Brief for United States
23–24. The Court shies away from explicit agreement, for
that is not what Mullane instructs. Rather, the party
obliged to give notice—here, the Government—must adopt
a method “reasonably calculated” to reach the intended re-
cipient. See 339 U. S., at 318; One Toshiba Color Television,
213 F. 3d, at 155 (If the Government “chooses to rely on less
than actual notice, it bears the burden of demonstrating the
existence of procedures that are reasonably calculated to en-
sure that [actual] notice will be given.”). The Government,
staying “within the limits of practicability,” Mullane, 339
U. S., at 318, now conforms to the foundational precedent; its
prior practice fell short of the requirement that “[t]he means
employed must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish it,” id.,
at 315.4
The majority is surely correct that the Due Process Clause
does not require “heroic efforts” to ensure actual notice.
receipt.” Ante, at 172. The signature procedure now in place offers the
FBI the same security that motivates any other postal customer to pay a
surcharge for certified mail, return receipt requested: A sender who knows
whether delivery to the addressee was accomplished can try again if the
first effort fails. Moreover, if forfeiture cannot be had absent a logbook
signature or documentation that the addressee refused to sign, the BOP
will have every incentive to make sure its internal procedures guarantee
reliable delivery. The BOP’s incentive fades if all that is required is a
general statement by a mailroom employee that it is prison policy to de-
liver inmate mail. See supra, at 174.
4 The majority’s concern that a more demanding proof of notice require-
ment would undermine finality, ante, at 171, is baffling: Disputes over
whether notice was sent or received would be diminished, not encouraged,
by requiring proof of notice by signature. Under the regime the majority
tolerates, notice may be delivered or not depending on the diligence or
carelessness of the prison administration and the reliability or neglect of
its Unit Teams. “The title to property should not depend on such vagar-
ies.” Ibid.

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182 DUSENBERY v. UNITED STATES
Ginsburg, J., dissenting
Ante, at 170. But the BOP’s recently installed proof of de-
livery procedures require no convoys of armored vehicles to
“escor[t]” prisoners to the post office. Ibid. There is little
danger that Hollywood will confuse the rescuers of Private
Ryan, see ibid., with a BOP Unit Team member, putatively
delivering certified mail to inmates in his charge at least
since 1988, instructed a decade later to linger for the addi-
tional moments required to secure for each delivery a signa-
ture in a logbook.5 The Due Process Clause requires noth-
ing of the Government in cases of this genre beyond the
practicable, efficient, and inexpensive reform the BOP has
already adopted.
Notice consistent with due process “will vary with circum-
stances and conditions.” Mennonite Bd., 462 U. S., at 802
(O’Connor, J., dissenting) (emphasis deleted) (internal quo-
tation marks omitted). Given the circumstances and condi-
tions of imprisonment, the Government must have cause to
be confident that legal notices to prisoners will be delivered
inside the prison with the care “one desirous of actually in-
forming the [addressee] might reasonably adopt to accom-
plish it.” Mullane, 339 U. S., at 315. The uncertain mail-
room to cell delivery system formerly in place at FCI Milan
5 The majority worries that a firmer rule on delivery might “also apply,
for example, to members of the Armed Forces both in this country and
overseas.” Ante, at 170. Of course, many active-duty military person-
nel, both on and off military bases, maintain personal mailboxes and inter-
act with local postal authorities as does any other resident. The majority
is right that other members of the Armed Forces—soldiers in combat,
for example—are in respects material to this case similarly situated to
Dusenbery: Government authority determines their whereabouts and re-
stricts their movements, and that same authority receives their mail at a
central delivery location and must make arrangements to distribute it fur-
ther. It is at least doubtful, however, that a soldier, oblivious to a pending
action, would return home to find her property irrevocably forfeited to her
Government because she had the misfortune to be in a combat zone too
long.

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183 Cite as: 534 U. S. 161 (2002)
Ginsburg, J., dissenting
fell short of that mark. Greater reliability could be achieved
with modest effort. Because the Court finds that small but
significant effort undue, I dissent.