UNITED STATES of America, Plaintiff—Appellant, v. Penny Jillean CHRISTENSON, Defendant—Appellee.
No. 04-2084
United States Court of Appeals, Eighth Circuit
Sept. 27, 2005
LOKEN, Chief Judge, WOLLMAN, BEAM, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER and BENTON, Circuit Judges, en banc
When Hinkle denied Larry’s request for a permanent transfer to Clarendon on September 4, Hinkle had further reason to rationally conclude that Larry was not a good fit for the position at the Clarendon Post Office. By this time, Hinkle had learned from Postmaster Hampton that Larry had told Hackleton that she was unhappy having to deliver mail and preferred being a clerk to being a carrier. Coupled with her own observations of Larry, Hinkle could reasonably conclude that Larry’s dissatisfaction with delivering mail had not abated after Hampton counseled her, and that Larry’s unhappiness would continue to result in the type of absenteeism that took place on August 24-25 and during her eight unscheduled absences for the past year.
We agree with the district court that there is no evidence in the summary judgment record to show that Hinkle’s legitimate, nondiscriminatory reason was actually a pretext for discrimination on the basis of Larry’s race or sex. Although the next employee hired at the Clarendon Post Office was a white male, he was not hired by Hinkle, the decision-maker in Larry’s case; he was hired after Hinkle left her temporary role as the Officer in Charge of that office. While Hinkle was the Officer in Charge, she interviewed a black female, Coletha Harris, and found her suitable for the position. The record is silent as to why Harris was not chosen to fill the position.
III.
Accordingly, we affirm the judgment of the district court.
Richard L. Murphy, AUSA, argued, Cedar Rapids, Iowa, for appellant.
John P. Messina, AFPD, argued, Des Moines, Iowa, for appellee.
ORDER
On rehearing en banc, the district court’s judgment is affirmed by vote of an equally divided court.
VENTURA PACKERS, INC., a California corporation, Plaintiff-Appellant, v. F/V JEANINE KATHLEEN, Official No. 972086, her tackle, furniture & apparel in rem; F/V Rose Lee, Official No. 942678, her tackle, furniture & apparel in rem; F/V Talia, Official No. 973296, her tackle, furniture & apparel in rem, Defendants. Roger L. Ingman; Jody K. Ingman; Rose Lee LLC; Dennis H. Eames; Andrea J. Eames, Claimants-Appellees,
No. 03-56547
United States Court of Appeals, Ninth Circuit
Filed Aug. 11, 2005
Amended Sept. 16, 2005
SCHROEDER, Chief Judge, PREGERSON and TROTT, Circuit Judges
Carolyn J. Shields, Bailey & Partners, Altadena, CA, for the claimants-defendants-appellees.
The opinion, filed August 11, 2005, slip op. 10377, and reported at 419 F.3d 933 (9th Cir. Aug. 11, 2005), is withdrawn and replaced by the amended opinion filed concurrently with this order. With the amended opinion, the panel has voted to deny the petition for panel rehearing.
The petition for panel rehearing is denied.
OPINION
PREGERSON, Circuit Judge:
Plaintiff Ventura Packers, Inc. (“Ventura Packers”) appeals the district court’s grant of summary judgment in favor of the owners of three fishing vessels (“the Owners”), F/V Jeanine Kathleen, F/V Rose Lee, and F/V Talia. Ventura Packers brought this in rem admiralty action against the three vessels to execute a necessaries lien, and the vessels were arrested pursuant to maritime procedure. The Owners made a restricted appearance in district court and executed a stipulation with Ventura Packers. In the stipulation, the Owners agreed to post security in exchange for the release of the vessels. They further agreed that the security would stand in the place of the vessels as the defendant in the in rem action. The district court granted the Owners’ motion for summary judgment and dismissed the in rem action. Pursuant to the court’s order, counsel for Ventura Packers returned the security to the Owners.
We reversed the grant of summary judgment in favor of the Owners and remanded for further proceedings. See Ventura Packers v. F/V JEANINE KATHLEEN, 305 F.3d 913, 924 (9th Cir.2002). On remand, the Owners again moved for summary judgment. Once again, the district court dismissed the action. This time, the district court determined that in rem jurisdiction was lost because there was no res against which to enforce an eventual in rem judgment. Furthermore, the district court held that it was powerless to order the Owners to reinstate the security.
We have jurisdiction under
FACTUAL AND PROCEDURAL BACKGROUND
A. The Original District Court Action
Ventura Packers is a corporation that provides stevedoring services in Ventura, California. In 1996, Ventura Packers entered into an agreement with the Independent Fishermen’s Cooperative (“IFC”) to provide stevedoring and other services to IFC affiliated vessels. During the 1996-97 squid season, Ventura Packers provided services to three IFC affiliated fishing vessels: the F/V Jeanine Kathleen, the F/V Rose Lee, and the F/V Talia.
Ventura Packers alleged that IFC provided only partial payment for services rendered by Ventura Packers to the three vessels during the 1996-97 squid season. To recover $170,000 of outstanding debt owed by IFC, Ventura Packers filed an in rem admiralty action in district court
The stipulation for the release of the F/V Jeanine Kathleen provided in pertinent part that:
[Ventura Packers] and the JEANINE KATHLEEN hereby agree that the above referenced $47,000.00 cash deposit, if made in lieu of a surety bond, or the surety bond issued in accordance herewith, shall constitute an undertaking in lieu of the further arrest of the JEANINE KATHLEEN within the meaning of Local Admiralty Rule C.1 and further agree that said undertaking shall become a defendant in place of said vessel and shall be deemed referred to under the name of said vessel in any pleading, order or judgment in the [action].
The stipulation further provided in part that:
the cash deposit undertaking, or any obligations under any surety bond issued in accordance herewith, shall not be released or enforced by the law firm of Bright & Powell except upon the written instructions of both [Ventura Packers] and the JEANINE KATHLEEN, or upon further order of the court, or, upon presentation of a copy of the final judgment, to the prevailing party herein to the extent of the amount of said judgment, provided that the time to appeal said judgment has expired or to the extent of the amount of the judgment affirmed on appeal once no further appeal is possible.
The stipulations for the release of the F/V Rose Lee and the F/V Talia were identical in all material respects, except for the amount of the security posted.
After the Owners answered and the parties conducted discovery, the parties cross-moved for summary judgment. See Ventura Packers, 305 F.3d at 916. The Owners argued that the district court lacked subject matter jurisdiction, while Ventura Packers argued that jurisdiction was proper. See id. On July 26, 2000, the district court granted the Owners’ motion and dismissed the action for lack of subject matter jurisdiction. See id. The district court found that it lacked admiralty jurisdiction because the contract between Ventura Packers and the IFC was “not wholly maritime.” See id. at 917. The district court also issued an order releasing the security. Ventura Packers filed its notice of appeal on August 18, 2000.
B. Ventura Packers’ Return of the Security
Two days before it filed its notice of appeal, Ventura Packers retained new
Brogna stated in her affidavit before the district court that she was not consulted by Damen before he returned the security to the Owners. The district court concluded, however, that Damen was authorized to return the security to the Owners on behalf of Ventura Packers. The district court relied on the fact that it had not granted Damen leave to withdraw as counsel of record until six days after he returned the security to the Owners.
Several months later, counsel for the Owners wrote a letter to Damen. In her letter, counsel for the Owners requested the return of the security for the third vessel, the F/V Jeanine Kathleen. Soon after the letter was sent, Robert Bartosh, general counsel for Ventura Boatyard, Inc.,3 sent the Owners the surety bond for the F/V Jeanine Kathleen. Upon receipt, the Owners returned the surety bond to its issuer.
C. The First Appeal and Remand Proceedings
On appeal from the district court’s order granting the Owners’ motion for summary judgment and dismissing the action for lack of subject matter jurisdiction, we reversed and remanded for further proceedings. See Ventura Packers, 305 F.3d at 924. We held that a maritime contract was not necessary to create admiralty jurisdiction under the Maritime Lien Act,
Though the security was returned to the Owners before oral argument in the first appeal, the Owners did not argue that the return of the security affected the district court’s continuing jurisdiction over this action.
On remand to the district court, the Owners once again moved for summary judgment contending that the district court lacked jurisdiction over the in rem action. This time, however, the Owners’ argument concerned the return of the security. The Owners contended that once Ventura Packers released the security, in rem jurisdiction was lost because there was nothing against which to enforce an eventual in rem judgment. Furthermore,
The district court agreed with the Owners and dismissed Ventura Packers’ in rem action. The court concluded that in rem jurisdiction was lost once Ventura Packers returned the security to the Owners because there was nothing against which to enforce an in rem judgment. The court further held that it was powerless to order the Owners to reinstate the security.
STANDARD OF REVIEW
The district court’s decision to dismiss for lack of in rem jurisdiction was a legal determination which we review de novo. See Dluhos v. Floating & Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998); see also United States v. One 1987 Mercedes Benz Roadster 560 SEC, 2 F.3d 241, 243 (7th Cir.1993).
ANALYSIS
A. The Arrest of the Three Vessels Conferred In Rem Jurisdiction on the District Court
“Maritime liens arise for the unpaid provision of necessaries, breaches of maritime contracts, unpaid seaman’s wages, unpaid cargo freight, preferred ship mortgages, as well as in other circumstances.” Ventura Packers, 305 F.3d at 919. When a maritime lien arises, it “confers ... upon its holder such a right in the thing he may subject it to condemnation and sale to satisfy his claim or damages.” The Rock Island Bridge, 6 Wall. 213, 73 U.S. 213, 215, 18 L.Ed. 753 (1867); see also G. Gilmore & C. Black, The Law of Admiralty, § 9-1, at 588 (2d ed. 1975) (“The maritime lienor is not a co-owner of the ship. ... It remains the owner’s ship for all purposes—subject to the lienor’s right to have it arrested, wherever he can find it, on process issuing from the admiralty court.”). This is because “[t]he theoretical basis for the maritime lien rests on the legal fiction that the ship itself caused the loss and may be called into court to make good.” Ventura Packers, 305 F.3d at 919; see United States v. Ten Thousand Dollars in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir.1988) (“Jurisdiction in rem is predicated on the fiction of convenience that an item of property is a person against whom suits can be filed and judgments entered.”) (internal quotation marks and citation omitted).
Thus, the holder of a maritime lien has “the right to proceed in rem directly against the vessel” that is the fictional cause of the loss. Chugach Timber Corp. v. N. Stevedoring & Handling Corp. (In re Chugach Forest Prod., Inc.), 23 F.3d 241, 245 (9th Cir.1994). When suit is brought in federal court to execute a maritime lien against a vessel, Rule C permits a district court to “issue an order directing the clerk to issue a warrant for the arrest of the vessel ... that is the subject of the action.”
In this action, the district court obtained in rem jurisdiction when the three fishing vessels were arrested pursuant to maritime process. See id. Once the district court issued warrants for the arrest of the three vessels pursuant to Rule C, and the warrants were successfully served, “jurisdiction was complete.”
Rather than permit their vessels to remain under arrest, however, the Owners posted security in exchange for the release of their vessels. “Admiralty procedures allow an arrested vessel to be released from custody upon the posting of security.” Alyeska Pipeline Serv. Co. v. Vessel Bay Ridge, 703 F.2d 381, 384 (9th Cir.1983); see also
In effect, Ventura Packers’ necessaries lien was transferred from the three fishing vessels to the security posted by the Owners. See S. Oregon Prod. Credit Assn. v. Oil Screw Sweet Pea, 435 F.Supp. 454, 458-59 (D.Or.1977); see also G. Gilmore & C. Black, The Law of Admiralty, § 9-89, at 799 (2d ed. 1975) (“With respect to a lien in suit the effect of release is to transfer the lien from the ship to the fund represented by the bond or stipulation.”).
B. Continuous Control of the Res and In Rem Jurisdiction
The Owners argue that once Ventura Packers returned the security to the Owners pursuant to the district court’s order, and before our decision in Ventura Packers, the district court lost in rem jurisdiction. They rely in part on Alyeska Pipeline, where the plaintiffs brought an in rem action against the vessel Bay Ridge and arrested it pursuant to Rule C. See Alyeska Pipeline Serv. Co., 703 F.2d at 383. The vessel was then released in exchange for a stipulation for value posted by the claimants. Id. We held that once the district court dismissed the case and ordered the stipulation for value released, in rem jurisdiction was lost because there was nothing “upon which the judgment of the court could operate and give relief to the appellant.” Id. at 384 (citing Canal Steel Works v. One Drag Line Dredge, 48 F.2d 212, 213 (5th Cir.1931)).
The holding in Alyeska Pipeline that in rem jurisdiction was lost once the stipulation for value was released by the district court, and the reasoning on which it was based, was implicitly overruled and rejected by the Supreme Court in Republic National Bank of Miami v. United States, 506 U.S. 80, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992). Therefore, the holding in Alyeska Pipeline is no longer binding law in this circuit. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir.2002) (quoting United States v. Lancellotti, 761 F.2d 1363, 1366 (9th Cir.1985)) (“[W]e may overrule prior circuit authority without taking the case en banc when ‘an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.’ ”).
Contrary to Alyeska Pipeline, the Supreme Court in Republic National Bank held that as long as there is a valid seizure
In Republic National Bank, the government instituted an in rem civil forfeiture proceeding and prevailed in the district court. See Republic Nat’l Bank, 506 U.S. at 83. Thereafter, the proceeds from the res were transferred out of the district court’s control and into the United States Treasury before an appeal was heard in the Eleventh Circuit. See id. The government then moved to dismiss the appeal, arguing that jurisdiction over the in rem action was lost as soon as the res was transferred out of the district court’s control. See id. at 84. The Supreme Court rejected the government’s argument, and held that the only prerequisite to in rem jurisdiction is the valid seizure of the res at the initiation of in rem proceedings. See id. at 87-89.
We applied the holding of Republic National Bank in Stevedoring Services of America v. Ancora Transport, N.V., 59 F.3d 879 (9th Cir.1995), where the plaintiff brought a quasi in rem4 action and attached the defendant’s funds pursuant to maritime process. After a hearing, the district court vacated the writ of attachment. Id. at 881. On appeal, the defendants argued that the district court’s release of the attached funds rendered the case moot. Id. Following Republic National Bank, we rejected the defendant’s argument and held that “the district court’s release of the garnished funds in [the plaintiff’s] action for quasi in rem judgment did not divest the court of jurisdiction over the res.” Id. at 883. Though Republic National Bank was an in rem case, not a quasi in rem case, we concluded “that this difference suggests no reason why we should distinguish the Supreme Court’s decision in [Republic National Bank].” Id. at 882.
In short, in rem or quasi in rem jurisdiction remains throughout the course of an appeal, as long as jurisdiction was properly obtained at the initiation of the action. See Republic Nat’l Bank, 506 U.S. at 87; Stevedoring Servs. of Am., 59 F.3d at 882-83. Otherwise, the “prevailing party could frustrate the losing party’s appeal by transferring the res out
In light of Republic National Bank and Stevedoring Services of America, we conclude that in rem jurisdiction was not lost when the security was returned to the Owners pursuant to the district court order releasing the security. Because the release of the security did not divest the district court of jurisdiction, we hold that the district court retained in rem jurisdiction on remand from our decision in Ventura Packers.
C. The Useless Judgment Rule Does Not Apply
The Owners argue that even if the district court retains in rem jurisdiction, any in rem judgment would be a useless judgment. Specifically, the Owners contend that the district court is powerless to order them to reinstate the previously exonerated security.
There may be some in rem actions where dismissal is warranted “where the release of the property would render the judgment ‘useless’ because ‘the thing could neither be delivered to the libellants, nor restored to the claimants.’ ” Republic Nat’l Bank, 506 U.S. at 85 (quoting United States v. The Little Charles, 26 F. Cas. 979, 982 (C.C.Va.1818) (No. 15,612); see also id. at 87 (quoting United States v. One Lear Jet Aircraft, 836 F.2d 1571, 1579 (11th Cir.1988) (Vance, J., dissenting)) (“Of course, if a ‘defendant ship stealthily absconds from port and leaves the plaintiff with no res from which to collect,’ a court might determine that a judgment would be ‘useless.’ ”). The Court’s reliance on The Little Charles in Republic National Bank helps us determine whether the useless judgment rule applies here. We conclude that it does not.
In The Little Charles, the court explained that an in rem judgment against a released vessel would not be useless “if, for example ... the parties have, by consent, substituted other property to abide the fate of the suit.” The Little Charles, 26 F. Cas. at 982. That is what happened here: the three vessels were released by Ventura Packers in exchange for security that was intended to stand in the place of the vessels.5 This case is therefore distinguishable from
The Owners rely on several cases, preceding both Republic National Bank and Stevedoring Services of America, in which we concluded that a court is powerless to order a res returned where it has been released by the district court and the plaintiff does not seek a stay of the release order or post a supersedeas bond. See United States v. 66 Pieces of Jade & Gold Jewelry, 760 F.2d 970, 972-973 (9th Cir. 1985); Am. Bank of Wage Claims v. Registry of the Dist. Court of Guam, 431 F.2d 1215, 1218 (9th Cir.1970).
However, in Stevedoring Services of America, we held that the decision in Republic National Bank “eliminate[d] any requirement on a party seeking to institute a maritime attachment to obtain a stay or post a supersedeas bond to preserve the district court’s jurisdiction over the garnished funds while it appealed the release of the garnished funds.” Stevedoring Servs. of Am., 59 F.3d at 882; see also J. Lauritzen A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 141-42 (9th Cir.1995). Though Stevedoring Services of America was a quasi in rem case, we made clear that our conclusion was derived from Republic National Bank, an in rem case. See Stevedoring Servs. of Am., 59 F.3d at 882. We therefore see no reason to treat this in rem case differently. Thus, under Stevedoring Services of America, we hold that the district court retained jurisdiction over the res pending the outcome of the first appeal, even though Ventura Packers did not file a stay or post a supersedeas bond. See id.
We further conclude that the district court would be well within its authority to order the Owners to reinstate the security. The Owners, by their stipulation, agreed that the security would “become a defendant in place of said vessel and [would] be deemed referred to under the name of said vessel in any pleading, order or judgment” rendered by the district court. As the stipulation indicated, the “security [was] substituted for the vessel[s] as the res subject to the court’s jurisdiction.” See Alyeska Pipeline Serv. Co., 703 F.2d at 384. Because this in rem action is still pending, the security is still the substitute res. The security therefore remains subject to the court’s jurisdiction. Thus, while Ventura Packers released the security to the Owners when they were ordered to do so by the district court, the district court retains legal custody of the security
D. The Owners’ Restricted Appearance Under Rule E(8)
Finally, we also reject the Owners’ argument that their restricted appearance under Rule E(8) prevents the district court from requiring them to reinstate the security. Rule E(8) provides:
Restricted Appearance. An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment, may be expressly restricted to the defense of such claim, and in that event is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served.
Rule E(8) permits a claimant in an in rem proceeding to “vigorously defend the merits of the claim against him without converting his restricted appearance into a general appearance.” Teyseer Cement Co. v. Halla Maritime Corp., 794 F.2d 472, 478 (9th Cir.1986) (internal quotation marks and citation omitted). Stated differently, “[o]nce a claimant appears and defends against an in rem claim for which process has issued, Rule E(8), when properly invoked, precludes claimant’s restricted appearance from being deemed a general appearance on other claims, properly joinable, for which process has not yet issued.” Marunaka Maru No. 88, 559 F.Supp. at 1370. Gilmore and Black describe the purpose of Rule E(8) as follows:
According to the Advisory Committee’s Note[,] this provision ... was principally designed to insure that an appearance to defend an action initiated by in rem (or quasi in rem) process does not automatically subject the defendant to in personam jurisdiction with respect to nonmaritime claims which under the liberal joinder provision of [the] unified rules may be combined with maritime claims in the same action.
G. Gilmore & C.L. Black, The Law of Admiralty § 9-90, at 805 (2d ed.1975).
CONCLUSION
In sum, we hold that the district court retained in rem jurisdiction on remand from our decision in Ventura Packers even though Ventura Packers, through its counsel, returned the security to the Owners’ counsel pursuant to the district court’s order. We also hold that because the parties’ agreed that the security would stand in the place of the released vessels, an in rem judgment would not be useless. Finally, we hold that the district court has ample authority to order the Owners to reinstate the security, notwithstanding Rule E(8).
Thus, we reverse the grant of summary judgment in favor of the Owners and remand the case for further proceedings.
REVERSED and REMANDED.
In re Robert SASSON, Debtor. Robert Sasson, Appellant, v. Norman F. Sokoloff, M.D., individually and as Trustee for Camelot Medical Group, Inc., Profit Sharing Plan, Appellee.
No. 03-16364
United States Court of Appeals, Ninth Circuit
Filed Aug. 25, 2005
Amended Sept. 13, 2005
Notes
A quasi in rem action is basically ... a halfway house between in rem and in personam jurisdiction. The action is not really against the property; rather, the action involves the assertion of a personal claim against the defendant of the type usually advanced in an in personam action and the demand ordinarily is for a money judgment, although in some contexts the objective may be to determine rights in certain property. The basis for transforming the suit from one in personam to an action against the defendant’s property is the attachment or garnishment of some or all of the property the defendant may have in the jurisdiction.
Wright & Miller, Federal Practice and Procedure; Civil 3d § 1070, at 286 (2002); see also Teyseer Cement Co. v. Halla Maritime Corp., 794 F.2d 472, 476-77 (9th Cir.1986) (describing the nature of quasi in rem jurisdiction in the maritime context).
Accordingly, The Brig Ann is not instructive here, where the seizure of the res was not abandoned prior to the commencement of the action. Furthermore, we do not equate Ventura Packers’ release of the security with abandonment of their seizure. They released the security only after being ordered to do so by the district court. As their appeals in this case demonstrate, they continue vigorously to pursue this in rem action.
Our decision in Pride Shipping v. Tafu Lumber Co., 898 F.2d 1404 (9th Cir.1990), also relied on by the Owners, is similarly distinguishable. There, we examined the effect of the district court’s release of a vessel’s bunkers that had been attached in order to initiate a quasi in rem proceeding. Id. at 1405. Because the coal inside the vessel’s bunkers had been used up by the time the appeal was heard by this court, we concluded that the security was “clearly beyond the jurisdiction of this court, and can never return, since it has now become energy and residual products of combustion.” Id. at 1408.