dissenting:

The question before us is a close one— but it is close primarily because of the failure of claimants to identify before the district court the grounds of their request for relief. Of course one could argue, properly I suggest, that it would have been better for the district court to follow its own local rules. Nevertheless, the issue before us is one of jurisdiction and I cannot agree with the majority that the motions for rehearing made at trial may be construed properly as motions under Federal Rule of Civil Procedure 60(b)(4) or (6). Therefore, I dissent.

The United States sought forfeiture of two cars and a boat linked to narcotics activity. The provisions of 21 U.S.C. § 881 (b) and (d) require application of the Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules) and the procedures for enforcement of customs claims, see, e.g., 19 U.S.C. §§ 1608 , 1615, to such forfeitures. See also Fed.R. Civ.P. 81, notes of advisory committee on 1966 amendments (“Statutory proceedings to forfeit property for violation of the laws of the United States ... will be governed by the ... supplemental rules.). In turn, the Supplemental Rules make the Federal Rules of Civil Procedure applicable. See Supp.R. for Certain Admiralty and Maritime Claims A.

Although this creates an unduly complex procedural framework, certain things are immediately clear. First, forfeitures under the narcotics laws are civil proceedings. See, e.g., United States v. One 1970 Pontiac GTO, 2-Door Hardtop, 529 F.2d 65, 66 (9th Cir.1976) (Pontiac GTO); see generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90 , 94 S.Ct. 2080, 2090-95 , 40 L.Ed.2d 452 (1974). Second, these forfeitures proceed in rem and any person seeking to participate in the forfeiture action must first file a claim stating an interest in the property. See, e.g., 19 U.S.C. § 1608 ; Supp.R. for Certain Admiralty and Maritime Claims C(6). Third, once a person alleges an interest entitling him to participate in the proceedings as a claimant, he bears the burden of proof despite his role, by way of an answer to the complaint of forfeiture, as the responsive pleader. See 19 U.S.C. § 1615 ; Supp.R. for Certain Admiralty and Maritime Claims C(6); see also, e.g., Pontiac GTO, 529 F.2d at 66 (upholding constitutionality of the allocation of the burden of proof).

In this case, the United States filed complaints on February 8 and 17, 1983, and issued notices of the proposed forfeitures on February 10 and 22. The claimants filed claims in each case within twenty days, compare 19 U.S.C. § 1608 (twenty days) with Supp.R. for Certain Admiralty and Maritime Claims C(6) (ten days), but did not allege any interest in the property subject to forfeiture. They also failed to allege any interest in the property in their answers to the complaints for forfeiture. More than twenty-three days after the notices of proposed forfeiture, the United States moved to strike the claims and answers. The district court granted the motions without notice to the claimants, and then entered judgments of forfeiture against the property.

The claimants filed notices of appeal the same day the district court entered judgments. Our task would have been simple had counsel for the claimants filed motions specifically arguing for relief pursuant to rule 60(b). The motions, however, were for “Rehearing and Stay of Execution, Condemnation and Forfeiture.” In these motions, the claimants did not rely on any civil practice, rule, or statute. Instead, in the section titled “Jurisdiction,” they argued *1048 “[t]he District Court has plenary power within the time allotted for the taking of an appeal to modify its judgment for error of fact or law or to revoke it altogether. United States v. Jones, 608 F.2d 386, 390 (9th Cir.1979).” They did not request permission to amend their claims or answers— relief the majority now allows. They requested that the district court “rescind its order ... reinstate movants’ answer and verified claim, and ... allow movants to be heard in opposition to the Government’s motion to strike.” The district court denied the motions for rehearing, and the claimants purported to proceed with their appeals. They did not include the denial of their motions as grounds for appeal. Thus, that question is not properly before us.

Because the forfeitures were civil actions, the claimants seriously erred by relying on United States v. Jones, 608 F.2d 386 (9th Cir.1979) (Jones), a criminal case. I disagree with the majority’s argument that the government treated the claimant’s motions for rehearing as motions under Federal Rule of Civil Procedure 60(b). Instead, the government, also citing nothing but Jones , treated them as criminal motions. There is no basis, therefore, for the majority to argue that the government thought they were rule 60(b) motions and for that reason, we had jurisdiction. Nor does the record bear out the majority’s argument that the district court treated the claimant’s motions for rehearing as motions under Federal Rule of Civil Procedure 60(b). Instead, the district court’s actions fit the pattern of the only rationale presented it for handling the motions, the criminal motion rationale of Jones .

So the district court and the parties labored under the false assumption that the motions for rehearing sounded in criminal procedure. In addition, the procedural posture and legal arguments of the claimant’s motions for rehearing weigh against interpreting them as motions under rule 60(b). The majority correctly observes, however, that we will construe a merely mislabeled motion as “the type proper for relief requested.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.1983) (Miller). But the relief they requested does not seem particularly aimed at or limited to relief under rule 60(b). In their petition for rehearing before us, the claimants argue they intended to use rule 60(b)(4) or (6) to set aside default judgments entered against them. Yet nowhere in their motions for rehearing before the district court did they argue the judgments of forfeiture were void, see, e.g., Fed.R.Civ.P. 60(b)(4), or that extraordinary circumstances favoring relief existed, see Fed.R.Civ.P. 60(b)(6); see also Ackermann v. United States, 340 U.S. 193, 199 , 71 S.Ct. 209, 212 , 95 L.Ed. 207 (1950). Instead, the claimants simply reargued the patently frivolous fifth amendment point first raised in their claims and answers, cf. Baker v. United States, 722 F.2d 517, 518-19 (9th Cir.1983) (rejecting same claim by these claimants), and asked the district court to hear them defend those claims and answers against the government’s motions to strike. This sounds at least as much like a request for new trial or alteration or amendment of the judgment under rule 59 as a request for relief from judgment under rule 60. See Miller, 709 F.2d at 527 (rule 59(e) covers a “substantive change of mind by the court.”). In a somewhat similar situation, see Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811-12 (9th Cir.1981), we interpreted a confusingly labeled motion for relief as a motion under rule 59(e), not rule 60(b). See also Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983) (“motion for reconsideration” a motion under rule 59(e)); Walker v. Bank of America National Trust and Savings Association, 268 F.2d 16 , 19 n. 1, 20 (9th Cir.) (“motion to correct memorandum and order of dismissal” a motion under rule 59(e)), cert. denied, 361 U.S. 903 , 80 S.Ct. 211 , 4 L.Ed.2d 158 (1959). Because the claimants did not allege they suffered under void judgments or extraordinary circumstances, it seems their request for relief invoked rule 59 more than rule 60.

Some question exists whether the claimants even could have moved under rule 60(b) in these cases. To the extent they *1049 sought relief from judgment rather than a new hearing or amendment of judgment, it can be argued that the mechanism of 19 U.S.C. § 1618 for administrative relief from forfeitures largely takes the place of rule 60(b). See United States v. Andrade, 181 F.2d 42, 46 (9th Cir.1950). Because the district court had retained control of the property after judgment, section 1618 did not absolutely bar any further action, but a question arises whether its place in the forfeiture scheme appears to discourage the normal use of rule 60(b) relief. The district court in United States v. One 1941 Chrysler Sedan Automobile Motor No. C28-17313, 46 F.Supp. 897, 898 (E.D.Ky.1942), stated: “It seems quite apparent from the wording of this rule [60(b) ] that it was not designed to apply to proceedings ‘in rem’ for by its terms it affords relief only to ‘a party’ from a judgment taken against ‘him.’ ” In part for this reason, it has been said that “Rule 60(b) is generally held to be inapplicable to forfeiture proceedings.” United States v. One 1970 Buick Electra 225, 57 F.R.D. 185, 188 (N.D.Ohio 1972).

The reasons above persuade me that we should interpret the claimants’ motions for rehearing as motions under rule 59. Because a “notice of appeal filed before disposition of [such] motions shall have no effect,” Fed.R.App.P. 4(a)(4); see Griggs v. Provident Consumer Discount Co., 459 U.S. 56 , 103 S.Ct. 400, 403 , 74 L.Ed.2d 225 (1982), we lack jurisdiction of the claimants’ appeals.

Because I conclude we are without jurisdiction, I would not pass on the merits, though I am tempted to discuss that a reversal may only be grounded upon the merits — not on the denial of claimants’ motions from which they did not appeal. Because the claimants never attempted to amend their claims or answers and they are patently frivolous on their face, see Baker v. United States, 722 F.2d at 518-19 , I am tempted to but choose not to raise the question of harmless error latent in the claimants’ failure to allege any interest, not just ownership, in the cars and boat. I conclude that the claimants’ motions for rehearing before the district court invoked rule 59, leaving them without valid notices of appeal to this court. Because they did not file new notices of appeal after the denial of their motions, we lack jurisdiction. I would dismiss the appeals.