178
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 required by Mullane"). Prisoner Dusenbery's situation differs dramatically from that of persons for whom we suggested 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 Government shall declare the property forfeited).
Nor can any undue hardship justify a less than careful endeavor 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 Bureau 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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