UNITED STATES of America, Plaintiff-Appellee,
v.
ONE (1) DOUGLAS A-26B AIRCRAFT, Serial No. 28034, FAA
Registration No. N3035 S, and Equipment, Defendant,
Rebel Aviation, Inc., Claimant-Appellant.
No. 81-7324
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Nov. 9, 1981.
McDaniel, Chorey & Taylor, Alan L. Dye, Atlanta, Ga., for Rebel aviation, inc.
Kеnneth C. Etheridge, Asst. U. S. Atty., Savannah, Ga., D. Lowell Jensen, Asst. Atty. Gen., Washington, D. C., for the U. S.
Appeal from the United States District Court for the Southern District of Georgia.
Before RONEY, KRAVITCH and CLARK, Circuit Judges.
KRAVITCH, Circuit Judge:
Claimant Rebel Aviation, Inc. has appealed the order of the district court denying its motions for writ of assistance under Rule 70 of the Federal Rules of Civil Procedure and for modification of judgment under Rule 60(b). We agree with the district court that Rule 70 is an inappropriate basis for relief of the type sought by appellant. We further conclude that although appellant could have sought relief via a counterclaim asserted in the original forfeiture action and although an avenue still remains open by way of an independent suit, the relief it seeks is outside the scope of Rule 60(b). Hence, we affirm the dismissal of appellant's Rule 70 and Rule 60(b) motions.
The motions under consideration in this appeal are the latest step in a series of litigation through which the government sought to forfeit, and the appellant to prevent forfeiture of, an aircraft owned by appellant and seized by U. S. Customs officers for violations of the customs laws. Customs seized the aircraft on February 26, 1976 but did not refer the case to the U. S. Attorney until December 15-more than nine months after the seizure. Prior to the government's instituting forfeiture proceedings on January 19, 1977, appellant repeatedly sought return of the aircraft through administrative petitions for remission and, finally, through an action brought in the district court to compel the government to return the aircraft or to institute forfeiture proceedings. On September 6, 1977, the district court found that Customs had delayed unreasonably in instituting forfeiture proceedings thus violating both the requirement of promptness imposed by 19 U.S.C. §§ 1602-1604 and appellant's fifth amendment right to due process of law. On the basis of these findings, the court granted appellant's motion for summary judgment dismissing the government's forfeiture action and ordering Customs to surrender the aircraft.1
After the government had surrendered the aircraft in accordance with the district court's order, appellant filed the petition under consideration here. Alleging deterioration оf the plane as a result of negligence on the part of the Customs officials in whose custody the aircraft remained from the time of seizure until its return to appellant, appellant filed a post-judgment motion requesting that the district court modify its prior order and direct the government to return the aircraft "in an airworthy condition." Appellant asserts two alternative bases for obtaining the relief it seeks. It reliеs first on Fed.R.Civ.P. 70, which permits district courts to issue writs of assistance in aid of judgments ordering delivery of possession of property.2 As the district court noted in its order denying appellant's motion for modification and application for writ of assistance, Rule 70 is designed "to deal with parties who seek to thwart judgments by refusals to comply with orders to perform specific acts," 12 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 3021 (1973), and is not an appropriate basis for relief in cases where, as here, the party seeking relief does not allege noncompliance with any order issued by the court.3
Second, appellant relies on Fed.R.Civ.P. 60(b)(3) & (6), which provide that a "court may relieve a party ... from a final judgment" on grounds of "fraud, misrepresentation, or other misconduct of an adverse party" or "for any other reason justifying relief from the operation of the judgment." Appellant argues that the repeated assurances made by Customs that it was properly servicing and maintaining the aircraft, together with its refusal to allow appellant to inspect the plane during its custody, constitute misrepresentations that resulted in appellant's failure to request and the district court's failure to order restoration of the aircraft prior to its return. The gist of appellant's Rule 60(b) claim is that, but for the alleged misrepresentations made by Customs, appellant would have sought, and the district court granted, broader relief. Appellant presented substantial evidence before the district court demonstrating the deterioration of the aircraft during the lengthy period of its custody with the Customs Department and substantiating appellant's allegation of misrepresentations by Customs officials as to their maintenance of the plane.4 The district court denied appellant's petition under Rule 60(b), however, stating that on the basis of the facts presented it was unable to conclude that appellant had met its burden of proving fraud by clear and convincing evidence.5 By focusing on the question of fraud, the district court failed to consider whether the evidence presented by appellant would support a claim of innocent misreprеsentation by Customs agents, and if so, whether Rule 60(b) affords relief for such a claim.6 We need not resolve this issue, however, since we hold that the nature of the relief appellant seeks is beyond the scope of that affordable under Rule 60(b).
By seeking relief under Rule 60(b) appellant maintains that, had it been apprised of Custom's failure to take proper care of the plane, it would have asserted in thе forfeiture action, in addition to its defense of undue delay, a counterclaim for damages.7 Appellant has cited no statutory authorization for allowing damages to be counterclaimed against the government in forfeiture proceedings. Courts are not free to entertain all claims raised by private citizens against the Federal Government, however. Only where Congress has expressly waived the government's immunity or where some other governmental action is held to constitute waiver may a court hear a claim against the government. Moreover, where Congress has waived the government's immunity, it is well established that it may also define and limit the conditions under which suits may be brought. Honda v. Clark,
In deciding appellant's Rule 60(b) motion, we must therefore address three questions: first, whether Congress, through legislation governing suits against the United States, has waived the government's immunity with respect to claims for damage to property sustained while in the custody of the Department of Customs; second, if there has been a waiver of the government's substantive immunity, whether the statutorily prescribed procedures for actions against the government allow a claim of this type to be asserted as a counterclaim in a forfeiture proceeding rather than as an independent action; and finally, if sovereign immunity would have posed no barrier to the relief sought by appellant had it claimed that relief during the original forfeiture proceeding, whether the district court is now authorized to grant that relief under Rule 60(b).
The authority for most claims that may be brought against the Federal Government is found in two statutes. The Tucker Act, 28 U.S.C. § 1346(a) confers concurrent jurisdiction on federal district courts and the Court of Claims to hear actions against the United States not exceeding $10,000 in amount, including claims founded on the Constitution, federal statutes and regulations, or express or implied contract, and other damage claims not sounding in tort. The Federal Tort Claims Act, 28 U.S.C. § 1346(b) provides district courts with jurisdiction to hear damage claims against the government for injuries to persons or property caused by negligent or wrongful acts of government employees. Either of these statutes at first blush would seem to provide a basis for a claim such as that asserted by appellant; appellant could seek damages for unconstitutional forfeiture or breach of implied bailment under the Tucker Act, sеe Castleberry v. Alcohol, Tobacco & Firearms Div.,
It has long been recognized that the immunity of the Fеderal Government extends to cross-claims and counterclaims as well as to recovery in original suits. United States v. 597.75 Acres of Land,
Although we find that appellant could have asserted a counterclaim had it been aware of the condition of its aircraft at the time the forfeiture proceedings were litigated, we must deny appellant's Rule 60(b) motion for another reason. Prior Fifth Circuit decisions have held that claims for affirmative relief beyond the reopening of a judgment cannot be adjudicated on a Rule 60(b) motion but must be asserted in a new and independent suit. United States v. One 1967 Red Chevrolet Impala Sedan,
On the grounds stated above, the district court's decision denying claimant's petition is AFFIRMED.
Notes
Because of the clear viоlation of claimant's statutory and due process rights, the district court ordered the government to return the aircraft despite considerable evidence that it had been used to smuggle marijuana into the United States. The district court's order made return of the aircraft conditional, however, on payment by claimant of penalties imposed by Customs totalling $1500 for claimant's failures to manifest cargo, to give notice to Customs of arrival, and to make entry of the aircraft with cargo
Rule 70 provides:
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the district, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
No claim is made that Customs has failed to relinquish custody of the aircraft to appellant
Appellant offered evidence showing that the aircraft requires careful and continuous maintenance, that after the seizure by Customs appellant repeatedly requested access to the aircraft to ensure that it was being properly maintained, that Customs officials refused to allow appellant to inspect the aircraft during its custody with the government, that appellant apprised Customs of the maintenance requirements of the aircraft, that in telephone conversations and written correspondence Customs officials assured appellant that "the aircraft (was) being given proper attention by experienced personnel," and that contrаry to these assurances the aircraft "had deteriorated substantially as a result of sitting exposed to the elements for more than a year" and was no longer airworthy at the time custody was relinquished to appellant by Customs
The district court stated that "(a)t present, the Court is far from ready to say that the present facts support a finding of fraud and neglect instead of a dispute over 'ordinary wear and tear' with respect to an admittedly delicate machine." United States v. One (1) Douglas A-26B Aircraft, No. CV477-19 at 5 (S.D.Ga. Feb. 2, 1981) (order denying Motion for Modification and Writ of Assistance)
Were the term "misrepresentation" as used in Rule 60(b)(3) interpreted to encompass only false statements made with the intention to deceive, the behavior described by that word would be wholly subsumed within the category of behavior that the same subsection of the rule refers to as "fraud." Such a narrow reading of the word would render it superfluous for purposes of Rule 60(b)(3) and would thus conflict with the established principle of statutory construction that all words within a statute are intended to have meaning and should not be construed as surplusage. United States v. Wong Kim Bo,
Appellant insists that its claim is not one for damages but rather for a modification of the original order, which simply required that the aircraft be returned, to require that it be returned "in an airworthy condition." Put in more straightforward terms, appellant is asking that the court order the government to repair the alleged damage to the plane. Although there is no doubt that the government's immunity from suit may sometimes turn on the nature of the relief sought, we do not believe that the question of a claimant's ability to raise a counterclaim for repairs in a forfeiture action should depend on whether it characterizes its claim аs one for damages or as a request for a repair order. In either instance, the relief sought is essentially the same-reparation for damage to property. More importantly, the impact of either form of relief on the government is the same since either would require it to expend money from the public treasury for the repair of defendant's property; the only difference is whether thе money is paid to a third party that provides the repair services or instead to defendant directly with the latter making the repair arrangements
The Eleventh Circuit adopted former Fifth Circuit precedent in the en banc case of Bonner v. City of Prichard,
In Bursey, the parents of a man charged with drug possession had posted cash with the court as a deposit toward defendant's bail. After the defendant's conviction was reversed on fourth amendment grounds, the district court had ordered that the money posted by the parents be forfeited as reimbursement of the defendant's appointed counsel. The defendant appealed that order, and his parents, who intervened in the appeal of the disbursement proceeding as the real parties in interest, were allowed to raise a Tucker Act claim for rеturn of the money. In Lewis, we allowed two persons, who had brought a coram nobis proceeding to exonerate themselves from convictions rendered invalid by subsequent cases, to raise Tucker Act claims in the same action for recovery of fines they had paid under their invalid sentences of conviction. The Fifth Circuit held that the Tucker Act creates jurisdiction over certain types of claims but doеs not limit the procedural contexts in which such claims can be raised. Springfield is most closely analogous to this case. In Springfield, the United States had been sued under the Tort Claims Act for an accident involving a defective government-owned truck. The government filed a third-party complaint against the transport company whose employee had been driving the truck, alleging negligence on the part of the driver and seeking recovery for damages to the truck and indemnity against the claims of the original plaintiffs. The Fifth Circuit allowed the transport company to raise a Tucker Act claim for breach of contract based on the government's refusal to pay for services rendered by the company pending the outcome of the litigation. In considering whether the jurisdiction conferred by the Tucker Act cоuld be invoked by way of a counterclaim, the court stated:
We think the statute should be interpreted from a practical rather than a technical standpoint. Nothing in the statute itself precludes such an interpretation. And in a situation where no substantive rights are at stake, the only question being whether litigation is going to be disposed of in an expeditious or inexpeditious manner, we think that an interpretation which lends itself to sound judicial administration is justified.
See footnote 8 supra
See footnote 7 supra