UNITED STATES of America, Plaintiff-Appellee, v. ONE LEAR JET AIRCRAFT, SERIAL NO. 35A-280, REGISTRATION NO. YN-BVO, Defendant, Leybda Corp., Claimant-Appellant.
No. 85-5938
United States Court of Appeals, Eleventh Circuit
Feb. 11, 1988
Rehearing and Rehearing En Banc Denied March 9, 1988.
836 F.2d 1571
Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges.
BY THE COURT:
A member of this court in active service having requested a poll on the application for rehearing in banc and a majority of the judges of this court in active service having voted in favor of granting a rehearing in banc,
IT IS ORDERED that the above cause shall be reheard by this court in banc with oral argument on a date hereafter to be fixed. The previous panel‘s opinion is hereby VACATED.
Leon B. Kellner, U.S. Atty., Jonathan Goodman, David O. Leiwant, Sonia Escobio O‘Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges.
JOHNSON, Circuit Judge:
This case involves a forfeiture pro
The general rule of in rem jurisdiction is that the court‘s power derives entirely from its control over the defendant res. Id. at 272, 37 S.Ct. at 283; L.B. Harvey Marine, Inc. v. M/V River Arc, 712 F.2d 458, 459 (11th Cir.1983). Where an appellant fails to file a stay of judgment or a supersedeas bond, and the res is removed from the court‘s territorial jurisdiction, the appellate court does not have in rem jurisdiction. Taylor v. Tracor Marine, Inc., 683 F.2d 1361, 1362 (11th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983); Parks v. B.F. Leaman & Sons, Inc., 279 F.2d 529, 532 (5th Cir.1960). This Circuit has recently reaffirmed this traditional rule. See Harvey Marine, 712 F.2d at 459; Taylor, 683 F.2d at 1362.
In Harvey Marine and Taylor, this Court dismissed appeals for lack of jurisdiction where the prevailing party had removed the res and where the losing claimants failed to stay the execution of the district court‘s order. Recent cases in other circuits have reached the same result. See, e.g., United States v. $79,000 in U.S. Currency, 801 F.2d 738, 739 (5th Cir.1986) (“Where no supersedeas is filed or steps taken to supersede judgment and the Marshal surrenders custody, neither the district court nor the appellate court retains in rem jurisdiction“); United States v. 66 Pieces of Jade & Gold Jewelry, 760 F.2d 970, 973 (9th Cir.1985) (“Because forfeiture proceedings are in rem, the court‘s subject matter jurisdiction is dependent on its continuing control over the property“); Bank of New Orleans & Trust Co. v. Marine Credit Corp., 583 F.2d 1063, 1068 (8th Cir.1978) (“Removal of the res from a court‘s jurisdiction, or distribution of a substitute res deposited in the registry of the court, destroys in rem jurisdiction“). These cases demonstrate that the traditional in rem rule retains vitality.
In Harvey Marine, this Court dismissed an appeal as moot where the ship against which an in rem action had been brought departed the Court‘s jurisdiction after the district court dissolved the in rem arrest warrant. 712 F.2d at 459. Harvey Marine had filed an appeal from the district court‘s order dissolving the arrest, but it failed to request a stay of that order and it did not file a supersedeas bond. Id. at 458. This Court stated that it could not “proceed to adjudication” where the res was no longer within the Court‘s territorial jurisdiction. In response to Harvey Marine‘s argument that it was “fundamentally unfair not to adjudicate the merits of the case,” the Court noted that there were “various methods to protect appellate jurisdiction in an in rem case,” id. at 459 (citing Bank of New Orleans, 583 F.2d at 1068-69; Parks, 279 F.2d 529), and it implied that Harvey Marine was at fault for failing to employ any of these methods.
Other courts have stated this position more forcefully, holding that the losing claimant to the res is obligated to take
Taylor employs an analysis similar to that in Harvey Marine, and the cases reach similar results. In Taylor, crew members brought an action against their vessel to obtain their wages. The ship was seized and sold, but the proceeds were disbursed to priority lienholders. This Court noted that the crew members failed to seek a stay of the district court‘s order allowing disbursement of the funds; therefore, the res was not before the Court on appeal. 683 F.2d at 1362. Consequently, in rem jurisdiction was destroyed, rendering the crew‘s appeal moot. Id.
Our recent cases control the result in the case at bar. The present case involves a sequence of events which is similar to what occurred in Taylor and Harvey Marine. After trial below, the district court ordered the plane forfeited to the government. Leybda filed notice of appeal, but it failed to stay the district court‘s order.1 Therefore, the judgment became final ten days after the court issued its decree, and the government was free to remove the plane from this Court‘s jurisdiction. That removal destroyed in rem jurisdiction.2
In light of the in rem jurisdictional rule, the only way in which Leybda might avoid dismissal of its appeal is to fit this appeal
One might argue that jurisdiction in this case was not limited to in rem jurisdiction. For example,
Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.
In addition,
The district court shall have original jurisdiction, exclusive of the courts of the states, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under Section 1582 of this title.
In its forfeiture complaint, the government alleged that
However, a closer examination of these sections indicates that they vest the district courts with subject matter jurisdiction over forfeitures under
Although there is no statutory basis on which to assert that this Court has in personam jurisdiction, a limited exception to the in rem rule allows a court to retain jurisdiction even though the res is no long
Factually, Inland Credit is different from the present case. In Inland Credit, a ship mortgagee brought an in rem action against the ship and an in personam action against the ship‘s owner. By so doing, the plaintiff invoked both types of jurisdiction. In One Lear Jet, the government never invoked in personam jurisdiction when it brought suit; it sued the plane, not the purported owner who later intervened.6
Other cases which embody exceptions to the in rem jurisdictional rule are also distinguishable. In Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978), a Florida corporation sued for possession of artifacts from a sunken ship located partially within and partially outside the territorial waters of the United States. The United States intervened in the district court and appealed summary judgment in the corporation‘s favor, arguing that the district court lacked in rem jurisdiction to determine the rights of the parties. The Court held that by intervening as a party defendant/claimant, and by stipulating to the district court‘s admiralty jurisdiction, the United States had waived the requirement that the res be before the court. Id. at 335. Again, this case is different from One Lear Jet because jurisdiction in One Lear Jet was based solely on the res; the government did not consent to the court‘s in personam jurisdiction.7 It merely brought a forfeiture action against the aircraft.
This Court‘s precedents do not allow us to assert in personam jurisdiction over the government in this case. Such a holding would be an unwarranted extension of the limited exceptions which find in personam jurisdiction in certain forfeiture proceedings. Moreover, we reject the notion that the United States consented to in personam jurisdiction by invoking the dis
In sum, this Court lacks in rem jurisdiction to hear this appeal because the res had been removed from the jurisdiction at the time of the appeal. In addition, the Court does not have in personam jurisdiction over the parties because the action was solely in rem. Because this Court lacks jurisdiction to hear this appeal, it cannot entertain Leybda‘s claims on the merits. Accordingly, the appeal is DISMISSED.
VANCE, Circuit Judge, dissenting, in which HATCHETT and ANDERSON, Circuit Judges, join:
I concur in Judge Clark‘s dissent. I write separately to accent a few points I consider particularly important.
The question that divides the in banc court involves only the right of appeal. Because the panel correctly decided the merits of the case the outcome is not affected. In addition, my views are not in any way critical of the government because of its removal of the aircraft from the Southern District of Florida. Because the judgment of forfeiture was neither superseded nor stayed, the government clearly had a right to remove the aircraft and dispose of it. Finally, my dissent in no way impinges on the activities of federal officials in their war against narcotics importation. I take issue solely with the majority‘s elimination of the right of appeal.
The majority opinion is disturbing on three different levels. In an important respect it offends fundamental principles of fairness. It also represents a departure from common sense. Finally, it is analytically flawed. Although in some circumstances the law may require courts to depart from what seems to be fairness and common sense, such a departure in this case is unjustified and unsupported by the law of forfeiture and admiralty.
1.
The claimant-appellant was unable to supersede the forfeiture judgment because it jurisdiction over the government in the case at bar.
To my mind the egregiousness of the result is magnified because this is a forfeiture case—a penal proceeding wherein strict construction of authorizing statutes has been required almost as long as construction itself. As the Supreme Court stated in another era, when alcohol rather than narcotics was the target of law enforcement: “Forfeitures are not favored; they should be enforced only when within both letter and spirit of the law.” United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939). Forfeiture actions are unique in that they are the only proceedings where the government may confiscate private property on a mere showing of probable cause. For this court to eliminate the right of appeal, the most important safeguard against abuse, is indeed a drastic step.
I do not assert that such an unfair result is without parallel. I do urge, however, that deprivation of important, indeed fundamental, rights because of impecuniousness alone should rest on compelling imperatives and not on sophistical hair-splitting.
2.
The United States initiated this proceeding in the United States District Court for the Southern District of Florida and thereby invoked the jurisdiction of a court of the United States. The majority holds that the United States can thereafter take the forfeited chattel out of the district and thereby defeat the jurisdiction of a United States court because of the United States court‘s inability to enforce a judgment against the United States.
It is not asking too much of courts to suggest that their decisions, whenever possible, should harmonize with ordinary common sense. With deference to my esteemed colleagues in the majority, their decision fails to do so.
3.
The majority‘s analysis is flawed because the majority misreads binding precedent and misapplies principles of admiralty law in this forfeiture case. Because I believe we have had in personam jurisdiction over the United States from the instant the government invoked the jurisdiction of the federal courts to initiate the forfeiture proceedings, I dissent from the majority‘s dismissal of this appeal.
As Judge Clark‘s dissent points out, the majority‘s reasoning that removal of the res from the district destroyed this court‘s jurisdiction to hear claimant‘s appeal is based on a withering legal fiction in admiralty law that personified the ship. The traditional approach conceived of the ship as “the offending thing,” which allowed actions directly against the ship. See G. Gilmore & C. Black, The Law of Admiralty 589-94 (2nd ed. 1975). The fiction of a ship‘s personality began as a literary theme, and reached a height of popularity near the turn of the century. Id. at 616. The fiction has been criticized severely during the past thirty years.1 The Supreme Court has noted that it has been attacked as archaic, irrational, atavistic and an animistic survival from remote times. Continental Grain Co. v. The Barge FBL-585, 364 U.S. 19, 23, 80 S.Ct. 1470, 1473, 4 L.Ed.2d 1540 (1960).
The majority‘s resort to this legal fiction as a principle of decision to resolve this appeal is disturbing enough. See G. Gilmore & C. Black, supra, at 616. But to utilize a defective legal fiction to essential
As the doctrine of personification of the ship loses force, so should the rules which rest on it. G. Gilmore & C. Black, supra, at 804-05. Among the many such rules which courts have begun to jettison is the rule that the presence of the res within the jurisdiction of the court is an absolute prerequisite to the court‘s jurisdiction. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel (Treasure Salvors I), 569 F.2d 330, 334 & n. 4 (5th Cir.1978); 7A J. Moore & A. Pelaez, Moore‘s Federal Practice ¶ E.05, at E-203, E-207 (3rd ed. 1983); see also United States v. An Article of Drug, 725 F.2d 976, 982 (5th Cir.1984) (in recent years Fifth Circuit has allowed certain in rem actions to continue despite absence of the res); cf. Trans-Asiatic Oil Ltd. v. Apex Oil Co., 804 F.2d 773, 779 (1st Cir.1986) (court‘s jurisdiction in maritime attachment proceeding is not wholly circumscribed by the presence and amount of the attachment).
The majority compounds the problem by misapplying an already shaky admiralty rule to the facts of this case. The jurisdictional issue in this case involves the United States, not the claimant Leybda. The plaintiff United States, after initially invoking the jurisdiction of the federal courts and then removing the res from the district, now claims lack of subject matter jurisdiction in order to defeat claimant‘s attempt to appeal to this court. This is the exact opposite of what usually occurs in in rem cases, where the defendant ship stealthily absconds from port and leaves the plaintiff with no res from which to collect. In the usual in rem case the issue then becomes whether the plaintiff may establish in personam jurisdiction of the owner of the res once the res has been removed from the district. See, e.g., Taylor v. Tracor Marine, Inc., 683 F.2d 1361, 1362 & n. 2 (11th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983); Treasure Salvors I, 569 F.2d at 333-35; Inland Credit Corp. v. M/T Bow Egret, 552 F.2d 1148, 1151-52 (5th Cir.1977). In this case the issue is whether the defendant may establish in personam jurisdiction over the instigator of the in rem action, the plaintiff.
The question almost answers itself. Because it is rare that the plaintiff commencing an action in rem turns around and contests the jurisdiction of the court, there is little authority directly on point. In Treasure Salvors I the United States intervened in an action for confirmation of title to the sunken wreck of a 17th Century Spanish vessel. The government also counterclaimed and asserted title to the wreck. The Fifth Circuit held that by intervening in the plaintiff‘s in rem action and filing a counterclaim asserting a property right in the underwater res, the United States waived the requirement that the res be present in the territorial jurisdiction of the court. 569 F.2d at 335.
In this case the United States has done more than intervene in an existing in rem action. The United States instigated the action.2 Having submitted itself to the jurisdiction of the court, the government should not be allowed to escape “through its subsequent jurisdiction exceptions” to claimant‘s appeal. Savas v. Maria Trading Corp., 285 F.2d 336, 341 (4th Cir.1960). Indeed in other cases the government has argued successfully that it has personal jurisdiction over the owner of the res even after the res has disappeared. See, e.g., United States v. Articles of Drug, 818 F.2d 569, 571 (7th Cir.1987).
The Fifth Circuit in Inland Credit Corp. faced an almost identical issue. In that case the plaintiff, having received the proceeds of the sale of defendant ship, argued that the court lacked jurisdiction to hear the appeal of two intervenors who were denied a share of the proceeds by the district court. The court rejected the plaintiff‘s argument, noting that it amounted to the proposition that there can be no appeal
The majority places particular emphasis on L.B. Harvey Marine, Inc. v. M/V “RIVER ARC”, 712 F.2d 458 (11th Cir.1983), and Taylor v. Tracor Marine, Inc., 683 F.2d 1361 (11th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983), concluding that these cases “control the result in the case at bar.” In addition to the distinguishing features noted in Judge Clark‘s dissent, I consider it particularly important that the cases relied on by the majority involved the converse of the issue in this case. In Harvey Marine the ship had left the jurisdiction and the plaintiff-appellant was trying to assert jurisdiction over the ship‘s owners. See 712 F.2d at 458-59. In Taylor the res had been distributed and the plaintiff-appellant was trying to assert a similar jurisdictional claim. 683 F.2d at 1362.4 Neither case had anything to do with the court‘s jurisdiction over the plaintiff. Thus these cases are distinguishable, if not wholly inapplicable.5
An admiralty court should not be hampered in its efforts to reach substantial justice by inexorable rules invoked by the parties. Mosher v. Tate, 182 F.2d 475, 479 (9th Cir.1950) (quoting The Minnetonka, 146 F. 509 (2nd Cir.1906)). Admiralty rules should not be construed in a hypertechnical manner to frustrate their adjudicative purpose. Trans-Asiatic Oil, 804 F.2d at 779. The admiralty cases in the Fifth and other circuits are characterized by an “interest in rendering justice rather than an automatistic reliance upon rigid legalisms....” Treasure Salvors I, 569 F.2d at 334.
The majority today violates these principles by resuscitating an anachronistic and conceptually flawed rule of admiralty, and applying it to a modern forfeiture action where it does not belong. I would take this in banc opportunity to rid this circuit of this dated jurisdictional jetsam, and hold that we have jurisdiction to hear this appeal. I therefore dissent.
CLARK, Circuit Judge, dissenting, in which ANDERSON, Circuit Judge, joins:
Through a rigid application of principles to which this court has previously refused to adhere blindly, the court divests itself of jurisdiction in this cause. Binding precedent compels the conclusion that the court is obligated to hear this appeal.
The majority‘s argument that the court has lost in rem jurisdiction is predicated upon the admiralty fiction that a ship is a person against whom suits can be filed and judgments entered. The admiralty fiction
This view, that the admiralty fiction of personality should not be used to frustrate the adjudication of lawsuits, has been instrumental in the development of exceptions to the traditional admiralty in rem rule in both admiralty and forfeiture cases. As the Fifth Circuit has explained,
in recent years this court [in cases binding on the Eleventh Circuit] has shied away from a strict construction of this in rem rule, and has allowed, in certain circumstances, an in rem action to continue despite the absence of the res. Specifically, we have dispensed with strict application of this in rem rule when a legal fiction which exists solely to effectuate the adjudication of disputes is invoked for the opposite purpose, and we have found a substitute basis of in personam jurisdiction.
United States v. An Article of Drug Consisting of 4,680 Pails, 725 F.2d 976, 982 (5th Cir.1984) (emphasis added).
We first dispensed with strict construction of this in rem rule in Inland Credit Corp. v. M/T Bow Egret, 552 F.2d 1148 (5th Cir.1977), where a ship mortgagee brought suit in rem against the vessel and in personam against its owner to foreclose on its mortgage. Under a court order, the vessel was sold and the proceeds were distributed to various creditors. Two creditors not sharing in the distribution appealed the decision not to include them. As with the claimant in this case, these creditors had failed to seek a stay of execution. Because the res had been distributed, the mortgagee argued that jurisdiction over the matter had been destroyed. Judge Tuttle explained that
a strict construction of the limits of in rem actions might bar any appeal of an in rem action unless supported by continued in rem jurisdiction. This narrow view of our jurisdiction, however, is difficult to square with the modern view, now almost a cliche, that in personam jurisdiction can be asserted whenever the defendant has those minimum contacts with the forum state that will satisfy
claimant to respond to the libel on its merits ... was an equivalent and equally effective undertaking that its interest in the ship should be subject to the authority of the court“) (cited with approval in Treasure Salvors, 569 F.2d at 334.).
“traditional notions of fair play and substantial justice.“’
552 F.2d at 1152. (emphasis added) (citations omitted).3 While reluctant to decide whether its holding had “critically shaken” the “philosophical underpinnings of the system of in rem jurisdiction in admiralty,” the court found that being “at the interface of in rem and in personam jurisdiction” enabled it to “properly exercise a broad in personam power.” 552 F.2d at 1152 (citations omitted).
The next case in which this court was presented with such an “interface of in rem and in personam jurisdiction,” see An Article of Drug, 725 F.2d at 983, was Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978). In Treasure Salvors, a Florida corporation sued for possession of and confirmation of title to a vessel located outside the territorial waters of the United States. The United States, intervenors in the district court, appealed summary judgment in favor of the plaintiffs, arguing that the district court lacked in rem jurisdiction to determine the rights of the parties.
We noted the “common concern of the courts” which had treated related issues “with finding the most practical and efficacious means of resolving disputes before them.” We noted further that their decisions demonstrated “[a]n interest in rendering justice rather than an automatistic reliance upon rigid legalisms.” 569 F.2d at 334.4 The court held that although no party had brought an in personam claim, the United States, by intervening in the action as a party defendant/claimant and by stipulating to the district court‘s admiralty jurisdiction, had “waived the usual requirement that the res be present.” Id. at 335.
In a more recent case, decided under the seizure and forfeiture component of the Federal Food, Drug, and Cosmetic Act,
The Fifth Circuit explained that Treasure Salvors and Inland Credit permit the court to find a “substitute basis of in personam jurisdiction” when the fiction of personality is invoked for a purpose inconsistent with its true purpose, namely, the adjudication of lawsuits. 725 F.2d at 982. The “substitute basis” of in personam jurisdiction stemmed primarily from the fact that, after the release of the res, the manufacturer voluntarily appeared before the district court for a number of reasons, in
Here, the facts are much the same. On October 21, 1985, seventeen days after the government took the plane to Missouri, it filed various papers in the district court, including a memorandum opposing Leybda‘s motion for a new trial. Under the majority‘s and the government‘s view, the government should have argued that removal of the res destroyed the district court‘s jurisdiction. Indeed, under this view, the government was not entitled to receive a new trial in An Article of Drug. The government cannot have it both ways. Here, the government‘s continued participation in post-judgment and post-removal proceedings further supports the conclusion that a substitute basis of in personam jurisdiction exists in this case. An Article of Drug, 725 F.2d at 984.
As the facts in An Article of Drug show, a strict adherence to the government‘s position would lead to absurd results. The district court did not lose its power to order a new trial even though the aircraft was no longer in the jurisdiction. Indeed, by opposing Leybda‘s motion for a new trial without challenging the court‘s jurisdiction, the government recognized the court‘s continuing jurisdiction and its power to order the return of the aircraft. The majority acknowledges that An Article of Drug is factually indistinguishable from this case, yet declines to follow it because “precedent in this Circuit does not support [its] holding.” Maj. op. at n. 5. A careful review of An Article of Drug demonstrates plainly that it is well supported by prior decisions which are binding on this court. The majority simply refuses to acknowledge the substantial limitations which this court, and others, have placed on the traditional in rem rule. Having voluntarily invoked the jurisdiction of the district court, the government cannot complain about remaining subject to this court‘s jurisdiction for all purposes that justice requires. Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 458, 82 L.Ed. 649 (1938), quoted in Inland Credit, 552 F.2d at 1152.6
The majority relies on two recent decisions of this court, L.B. Harvey Marine, Inc. v. M/V River Arc, 712 F.2d 458 (11th Cir.1983), and Taylor v. Tracor Marine, Inc., 683 F.2d 1361 (11th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983), in which we applied the traditional admiralty in rem rule. In both these cases, we dismissed as moot admiralty appeals because the vessels in question were no longer within the court‘s jurisdiction. Both cases are distinguishable. In Harvey Marine, a ship was arrested by the district court pursuant to a creditor‘s claim of a maritime lien. After a post-seizure hearing, the court dissolved the warrant of arrest. The ship, which had been scheduled to leave port on the same day the court dissolved the warrant, did so. We dismissed the appeal because no court could “proceed to adjudication” once the vessel had left the territorial jurisdiction. 712 F.2d at 459. The vessel‘s departure was due to the dissolution of the arrest warrant, not any act of the parties.
In Taylor, crew members brought an action in rem against a vessel to obtain payment of past wages. The vessel was sold and the proceeds were distributed to priority lienholders. We dismissed the claim as moot since the res was no longer in the jurisdiction. We noted, however, that if the case had “also involved claims in personam, jurisdiction might still lie.” 683 F.2d at 1362 n. 2 (citing Treasure Salvors, supra, and Inland Credit Corp., supra). Here, because we are “presented with an interface of in rem and in personam jurisdiction,” An Article of Drug, 725 F.2d at 983, and because the government is retaining exclusive possession of the plane, Taylor and Harvey Marine do not apply.
Yet a rigid application of
I respectfully dissent.
EDMONDSON, Circuit Judge, dissenting:
The idea that, when a plaintiff comes into a court system requesting the courts’ assistance in resolving a case, the plaintiff submits its person to the jurisdiction of those courts until the case is finally concluded seems to me to be neither innovative nor unfair. I agree with Judge Vance when he says that “we have had in personam jurisdiction over the United States from the instant the government invoked the jurisdiction of the federal courts to initiate the forfeiture proceeding.” I would affirm the judgment of the District Court.
Notes
A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found.
However, this section concerns venue, not jurisdiction. Therefore, it does not limit a court‘s authority to adjudicate forfeitures under Section 1324. The majority misreads the Inland Credit opinion, or at least does not read all of it. The majority reasons that because the plaintiff Inland Credit filed suit both in rem and in personam, the court continued to have jurisdiction over the ship‘s owner even after the res had been distributed. Therefore, the majority concludes, because the United States “never invoked in personam jurisdiction [over Leybda, the owner of the airplane] when it brought suit,” the court lost jurisdiction once the res was removed from the district. The issue in this case, however, is not what kind of jurisdiction exists over the defendant owner of the res, but what kind of jurisdiction exists over the plaintiff United States. The sentence quoted by the majority from the Inland Credit opinion does not address this issue. A subsequent sentence does: “[I]t is undeniable that Inland is subject to this Court‘s in personam jurisdiction.” 552 F.2d at 1152. In spite of the majority‘s assertions to the contrary, a close examination of this language reveals that these principles are in no way limited to cases in which the party initiating an action files claims in personam.