United States v. Three Sums Totaling $612,168.23 in Seized United States Currency

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 7, 2022            Decided December 20, 2022

                         No. 22-5018

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

   THREE SUMS TOTALING $612,168.23 IN SEIZED UNITED
                 STATES CURRENCY,
                     APPELLEE

                 AJC TRADING FZC, ET AL.,
                       APPELLANTS


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:19-cv-00130)



    Keith B. Lively argued the cause and filed the briefs for
appellants.

    Kevin J. Barber, Attorney, U.S. Department of Justice,
argued the cause for appellee United States of America. With
him on the brief was Joseph Palazzo, Deputy Chief, Special
Financial Investigations Unit.
                               2
   Before: HENDERSON and WALKER, Circuit Judges, and
TATEL, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: Appellants
are foreign companies that allegedly launder money for Kassim
Tajideen, a prominent Hezbollah financier and specially
designated global terrorist (SDGT). The United States seized
three sums totaling $612,168.23 belonging to Appellants and
filed the instant forfeiture action in order to keep the funds
permanently. When no one claimed the funds for more than a
year after the government gave notice of the forfeiture action,
the government moved for a default judgment. Apparently
realizing their mistake, Appellants belatedly attempted to file
claims to the seized funds to prevent the district court from
ordering forfeiture. The court struck Appellants’ filings as
untimely and entered default judgment in favor of the
government. After the court denied Appellants’ late
reconsideration motion, they filed the instant appeal. As
detailed infra, we affirm the district court in part and dismiss
the appeal in part for lack of jurisdiction.

                               I.

     The International Emergency Economic Powers Act
(IEEPA) vests the President with sweeping authority to impose
economic sanctions in order to “deal with any unusual and
extraordinary threat, which has its source in whole or
substantial part outside the United States, to the national
security, foreign policy, or economy of the United States, if the
President declares a national emergency with respect to such
threat.” 

(a); see Holy Land Found. for Relief
& Dev. v. Ashcroft, 

 (D.C. Cir. 2003).
                                     3
     Following the September 11, 2001 terrorist attacks,
President Bush invoked the IEEPA and declared a national
emergency with respect to the threat to national security posed
by terrorists. Exec. Order No. 13,224, 

(Sept. 23, 2001). The President designated a number of
organizations and individuals as SDGTs and blocked all of
their assets that were subject to the jurisdiction of the
United States. 

 The President also empowered the United
States Department of the Treasury (Treasury) to designate
those who “act for or on behalf of,” are “owned or controlled
by,” or “assist in, sponsor, or provide . . . support for” terrorists
as additional SDGTs. 

,079–80.

    In May 2009, the Treasury’s Office of Foreign Assets
Control (OFAC) designated Lebanese businessman Kassim
Tajideen as an SDGT based on his financial support for
Hezbollah. Additional Designation of Two Individuals
Pursuant to Executive Order 13224, 

,
26,476 (June 2, 2009). The following year, OFAC designated
several companies owned and operated by Tajideen, including
Ovlas Trading S.A., as SDGTs. Designation of Three
Individuals and Seven Entities Pursuant to Executive Order
13224, 

, 80,112–13 (Dec. 21, 2010).

     In October 2017, the United States commenced
administrative forfeiture proceedings against three sums
totaling $612,168.23.1 The sums were seized from U.S. banks


     1
         “Administrative forfeiture is a device that permits the United
States to determine whether property in its custody is unclaimed, and,
if it is, to take ownership without the trouble and expense of court
proceedings.” Small v. United States, 

 (D.C. Cir.
1998). If no claim is filed, the property is forfeited. If a claim is filed,
the government either returns the property to the claimant or files a
complaint for civil forfeiture in district court in accordance with
                                  4
in the course of attempted wire transfers to which Appellants
AJC Trading FZC, SRG Industries and Ramani Distribution
were parties. In October 2018, Appellants’ counsel filed
administrative claims on Appellants’ behalf for all three sums.
Accordingly, the following January, the government filed a
complaint in district court, seeking civil forfeiture of the sums.
See 

(a)(3)(A).

     The complaint alleged, among other things, that
Appellants are entities owned by, controlled by or operated for
the benefit of Kassim Tajideen and Ovlas Trading. The
complaint further alleged that the seized funds were traceable
to unlicensed transactions that violated the IEEPA as well as
the     federal     money-laundering      statute,   

(a)(2)(A), (c)(7)(D) (prohibiting engaging in
transactions “with the intent to promote the carrying on” of
violations of the IEEPA), and were therefore subject to
forfeiture, 

 §§ 981(a)(1)(C), 1956(c)(7)(D).

     After filing the complaint, the government published
notice of the lawsuit on www.forfeiture.gov for 30 consecutive
days, see Fed. R. Civ. P. Supp. R. G(4)(a), and also provided
direct notice of the lawsuit to all known potential claimants,
including the three Appellants, see id. G(4)(b).2 Both forms of
notice announced the deadline for would-be claimants to file
claims for the seized funds.3 Id. G(4)(a)(ii)(B), (b)(ii)(B).




Supplemental Rule G of the Federal Rules of Civil Procedure. 

(a)(1)–(3).
     2
       Direct notice consists of “notice of the action and a copy of
the complaint” sent “by means reasonably calculated to reach the
potential claimant.” Fed. R. Civ. P. Supp. R. G(4)(b)(i), (iii)(A).
     3
       The publication notice told putative claimants to file claims
by April 2, 2019, see Fed. R. Civ. P. Supp. R. G(4)(a), (5)(a)(ii)(B),
                                 5
     No claim was filed. As a result, on April 8, 2020—more
than a year after the claim-filing deadline elapsed—the
government moved for entry of default against the three sums
and all parties with an interest in them. The district court clerk
of court entered the default the following day. Fed. R. Civ. P.
55(a). The government then moved for a default judgment and
order of forfeiture. 

(b). Before the district court could rule
on the government’s motion, however, Appellants appeared
and moved to dismiss the government’s complaint. With their
motion to dismiss, Appellants included putative claims to the
three sums.

     Predictably (given that Appellants’ putative claims were
filed more than a year after the claims period ended), the
government moved to strike Appellants’ motion and claims for
untimeliness, Fed. R. Civ. P. Supp. R. G(5)(a)(ii), and for
failure to serve the claims on the government, 

 G(5)(a)(i)(D).
Based on Appellants’ procedural deficiencies, on June 3, 2021
the district court granted the government’s motion to strike and
entered a default judgment in favor of the government.

     The following week, Appellants notified the district court
of their intent to move for amendment or reconsideration of the
court’s orders and, absent success, to appeal the orders. But
Appellants explained that notwithstanding that intent,
irreconcilable differences existed between them and their
counsel, which differences would be the subject of a
forthcoming motion to withdraw. And because the motion to
withdraw probably would not be resolved before the expiration
of the deadlines for them to seek post-judgment relief or notice
an appeal, Appellants requested that the district court stay or
extend those deadlines pending resolution of the motion to
withdraw. The district court granted their request, ordering that

whereas the direct notice gave putative claimants until March 15,
2019, see 

 G(4)(b).
                               6
all deadlines in the case would remain “vacated” until Monday,
August 30, 2021 to allow Appellants to obtain new counsel.

     Appellants did not move for post-judgment relief, notice
an appeal or request another extension before August 30. But
at a status conference convened on September 3, 2021, the
district court ordered that all deadlines in the case would
“remain vacated” until November 4, 2021. Following another
status conference on November 4, the district court ordered
Appellants to file their motion for post-judgment relief by no
later than November 10, 2021.

     On November 10—more than five months after the district
court entered default judgment—Appellants moved to amend
or set aside the judgment under Federal Rule of Civil Procedure
59(e). Appellants argued that their previous counsel was not
properly notified of the lawsuit and that the prejudice to
Appellants from granting a default judgment outweighed any
prejudice that might result to the government from excusing the
untimeliness of Appellants’ claims.

    The government contested Appellants’ post-judgment
motion both on the merits and on the ground that it was
untimely. The district court denied the motion orally on
January 11, 2022. The record does not indicate whether the
motion was denied for untimeliness or on the merits.
Appellants filed the instant notice of appeal the same day their
motion was denied.

                              II.

     The government contends that we largely lack jurisdiction
over this appeal because Appellants did not file a timely notice
of appeal or Rule 59(e) motion. As explained below, we agree.
                                7
    

 governs the time for filing an appeal.
That statute provides that, if the United States is a party, notice
of appeal must be filed within 60 days of the entry of final
judgment. 

 § 2107(b). Under FRAP 4(a)(4)(A), however, a
timely post-judgment motion, including a motion to alter or
amend a judgment under Rule 59(e), tolls the notice-of-appeal
deadline. Fed. R. App. P. 4(a)(4)(A)(iv) (“[T]he time to file an
appeal runs for all parties from the entry of the order disposing
of the last such remaining motion.”); see Obaydullah v.
Obama, 

 (D.C. Cir. 2012) (per curiam).

     Here, Appellants filed their notice of appeal within 60 days
after the district court denied their Rule 59(e) motion. (Indeed,
they filed it the very same day.) The government does not
dispute these dates but argues that, because Appellants’ Rule
59(e) motion was not filed “within the time allowed,” see Fed.
R. App. P. 4(a)(4)(A), the motion failed to extend the notice-
of-appeal period. And because the motion did not extend the
period, Appellants’ notice of appeal was too late since it was
filed more than 60 days after the district court entered default
judgment in favor of the government. See 

.

     A motion to alter or amend a judgment under Rule 59(e) is
timely if filed within “28 days after the entry of the judgment,”
Fed. R. Civ. P. 59(e), a deadline that cannot be extended, see

(b)(2) (prohibiting extensions); Banister v. Davis, 

 (2020). As noted, the district court here entered
final judgment on June 3, 2021 but Appellants did not file their
Rule 59(e) motion until November 10—months after the 28-
day window had closed. Notwithstanding that the motion was
timely under the district court’s extensions, those extensions
violated Rule 6(b)(2), which prohibits extensions.

    Appellants concede as much but contend that, because
both Rule 6(b)(2) and the 28-day filing deadline in Rule 59(e)
                                 8
are non-jurisdictional claim-processing rules subject to
forfeiture and equitable exceptions, their motion nonetheless
triggered FRAP 4(a)(4)(A)’s tolling provision.

     Only deadlines and/or timing rules with a statutory basis
are jurisdictional. Youkelsone v. FDIC, 

(D.C. Cir. 2011) (per curiam). The reason for this is simple:
because “[o]nly Congress may determine a lower federal
court’s subject-matter jurisdiction,” Kontrick v. Ryan, 

 (2004), only deadlines/timing rules created by the
Congress are jurisdictional. Timing rules not created by the
Congress (that is, rules that do not have a statutory basis) are
non-jurisdictional claim-processing rules. See Hamer v.
Neighborhood Hous. Servs. of Chi., 

 (2017)
(“The rule of decision our precedent shapes is both clear and
easy to apply: If a time prescription . . . appears in a statute, the
limitation is jurisdictional; otherwise, the time specification fits
within the claim-processing category.” (citation omitted)).
Although claim-processing rules are mandatory and must be
enforced if properly invoked, they do not implicate courts’
authority to adjudicate cases and are thus subject to forfeiture,
waiver and equitable exceptions. Hamer, 

;
Mobley v. CIA, 

 (D.C. Cir. 2015).4

     We have held that the timing rules in Rule 59(e) and Rule
6(b)(2) are simple claim-processing rules. Mobley, 

; Obaydullah, 

. Appellants are thus correct
that, if the government forfeited its objection to the timeliness
of their Rule 59(e) motion or if an equitable exception permits
us to excuse the motion’s untimeliness, the motion could
extend the appeal period and their notice of appeal could have

    4
       The Supreme Court has “reserved whether mandatory claim-
processing rules may be subject to equitable exceptions,” Hamer,

 n.3, but we have determined that they may be, see,
e.g., Mobley, 

.
                                  9
been timely. Appellants, however, have not shown that the
government forfeited its objection to the timeliness of
Appellants’ Rule 59(e) motion.5 Nor have they shown that
there is an applicable equitable exception.

     We begin with forfeiture. Appellants contend that the
government forfeited its objection to the timeliness of their
Rule 59(e) motion because the government did not oppose their
requests for deadline extensions or challenge the timeliness of
their motion until it filed its brief in opposition. But that
contention does not have support in the trial court record.
Rather, the record reflects that the government did oppose
Appellants’ requested extension. Indeed, Appellants labelled
their initial motion for extension an “Opposed Motion to Stay
or Extend Deadlines” and stated in the motion that the
government “has noted that it is opposed to this motion.” App.
164 (emphasis added). Perhaps even more significantly, the
district court’s order granting Appellants’ first motion for
extension expressly referred to the motion as an “Opposed
Motion to Stay Proceedings and Deadlines.” App. 176
(emphasis added). Although Appellants now insist that their
motion in fact went unopposed, absent any record evidence to
support their contention, we decline to ignore the clear
language in the district court’s order indicating that the
contrary was true.

     Appellants also argue that an equitable exception—the so-
called unique circumstances doctrine—permits us to excuse the

     5
       Notably, Appellants do not challenge the adequacy of the
government’s opposition to their motion to stay or extend deadlines.
Cf. Eberhart v. United States, 

 (2005) (per curiam)
(holding that the government forfeited application of a claim-
processing rule because its opposition did not invoke that rule). They
argue only that the government did not oppose the motion at all, a
contention we reject.
                               10
untimeliness of their Rule 59(e) motion. The unique
circumstances doctrine permits a court to excuse the untimely
filing of a motion or notice of appeal if the untimeliness is
caused by the filer’s reliance on an erroneous lower court
decision. See Mobley, 

. But the unique
circumstances doctrine is a “sharply honed” equitable
exception. Carlisle v. United States, 

 (1996)
(Ginsburg, J., concurring). Given Appellants’ prolonged
inaction and failure to adhere to timing rules and other
procedural requirements, we decline to apply the doctrine in
this case.

     In sum, Appellants’ Rule 59(e) motion was untimely and,
as a result, so was its notice of appeal, at least with respect to
the district court’s June 3 order striking Appellants’ putative
claims and entering default judgment. Further, although the
notice of appeal was timely with respect to the district court’s
order denying Appellants’ Rule 59(e) motion, the court did not
abuse its discretion in denying the motion. The motion was not
only untimely but also presented arguments that either were or
could have been raised before judgment was entered. See
Exxon Shipping Co. v. Baker, 

, 485 n.5 (2008).
Accordingly, we affirm the district court’s denial of
Appellants’ Rule 59(e) motion and dismiss the remainder of the
appeal for lack of jurisdiction.

    It is so ordered.