*1 HUFSTEDLER, Aрpeals, of Before CARTER and United States Court Fifth Circuit. Judges, PREGERSON,* Circuit and Judge. 21, District Feb. 1973. CARTER, Judge JAMES M. Circuit (dissenting): majority following The has made the Mayo Jones, pro Ottis se. order: pro Gertrude Bales, se. “The cаuse is remanded the to district Woolf, Knoxville, Tenn., Louis C. and purpose court for the limited its of Ga., John E. Atlanta, Dougherty, for answering following question: the Waggoner. Cheatham and dismissing ‘petition’ “In the for lack of Stokes, Jr., Atty., John W. U. S. and jurisdiction, ‘peti- did deem the the court Beverly Bates, B. Atty., U. S. Asst. At- tion’ a theretofore amended to state lanta, Ga., Kirksey Taylor. for and (28 claim under Act the Tucker § U.S.C. 1346(а)(2)), by petitioner- requested GEWIN, Before as COLEMAN and plaintiff Judges. in MORGAN, his memorandum filed March Circuit 17, 1971?” PER CURIAM: futility. The in ordеr is an exercise judgment The of the district court is intrigued by majority apparently The is affirmed on the of the basis reasons stat- prospect the on of a constitutional attack and ed order, authorities cited in the final governing present the forfeiture statutes Bales, N.D.Ga.1972, Jonеs v. 58 of automobiles. F.R.D. 453. appellant in United The filed the “petition” a a for District Court
States оf an automobile. remission of forfeiture respond- named as The United States was party Aрpellant to thé not a ent. was agreement security on the car was but Plaintiff, SIMONS, Yale promis- оf a an endorser accommodation v. sory paying the off Later, note. after UNITED of America, STATES subrogated note, to the he claimed be to Defendant. to car. title the No. 71-2263. сourt, on the Govern- The district Appeals, United States Court of motion, for the action dismissed mеnt’s Ninth Circuit. jurisdiction. lack of July 19, 1973. reply petitioner in a memorandum The Phoenix, A. Alexander Ariz. Katz, requеsted the had in the district court . (argued), plaintiff for reliance on pleading to show amended be 1346(a)(2). Act, U.S.C. (argued), 28 § Michael B. the Tucker Scott William C. such, to amend made Lee, was Atty., motiоn, as Smitherman, No U. S. N. Warner * * Harry Pregerson, 18, Cir.; Enterprises, United States Honorable Rule 5 Inc. Isbell Judge, оf Cali- Casualty Company District District Central v. Citizens of New designation. fornia, sitting by al., Cir., 1970, 409, York et 5 431 F.2d I. Part *2 806 urges jurisdic- “petition”.
the
He
here
we would still have to affirm under the
above,
support
tion under that Act to
his claim.
authoritiеs
in
or take the case
banc to
them.
overrule
correctly dismissed
The district court
jurisdictiоn.
poorest possible
for
Unlike
is
lack of
most
This
the
case
an
for
eases,
hearing.
petition
the Government is not
in
The
forfeiture
banc
was one
plaintiff.
the
for remission of
in
form
fоrfeiture
the
ordinarily
proper
filed
the
with
adminis-
now, or
need not determine
when
We
11,
agenсy. Contrary
trative
to Rule
us,
to
the
the case comes back
whether
Procedure,
Fed. Rules of Civil
neither
Act,
upon
Tucker
28
court relied
the
“petition”
peti-
the
nor the “amended
1346,
the
for dismissal of
action.
U.S.C. §
by
attorney.
signed
No
tion” was
motion,
an
Circuit,
where
law this
even
Under the
of
such,
as
to
was made
amend.
plaintiff in the ac-
the
tion,
is the
Government
obviating
right
any problеm the
question
peti-
of
There is a
as to
serious
standing
the
under
Tucker
to
Act,
the Government
tо
for-
sue
tioner’s
contest
the
squarely
party
hold that there
cases
the
our
He
not a
tо
secur-
feiture.
ity
was
grant
jurisdiction
the
to
in
court
is no
the
document under which
car was
requested.
guarantor
v.
only
United States
the relief
of
a
financed. He was
42;
(9
1950),
F.2d
promissory
complains
181
Andrаde
Cir.
a
note. Petitioner
1962),
(9th
Bride
Cir.
pro-
v.
United States
of lack of
of the forfeiture
noticе
470, 474,
v.
ceedings.
and United States
308 F.2d
not be
should
The Government
Mustang
1972),
(9 Cir.
Ford
to
required
One 1967
to
title
ascеr-
make a
search
Wag-
v.
someone,
party
United States