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No. 04-1528
DAVID A. BABB,
Plaintiff - Appellant,
versus
U.S. DRUG ENFORCEMENT AGENCY,
Defendant - Appellee,
and
WILLIAM LUNSFORD, Seizing DEA Agent,
Defendant.
No. 04-1902
DAVID A. BABB,
Plaintiff - Appellee,
versus
U.S. DRUG ENFORCEMENT AGENCY,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CA-97-1553-6-20)
Argued:
Decided:
PER CURIAM:
In 1993, the government administratively forfeited $57,690 in
cash seized from David Anthony Babb during a drug sting operation.
In
1998,
Babb
brought
an
administrative forfeiture.
equitable
action
challenging
the
to
take
forfeiture
process.
advantage
Upon
of
the
learning
summary
that
the
administrative
administrative
See United
States v. Babb, 54 Fed. Appx. 772, 774 (4th Cir. 2003) (per
curiam).
Following the appeal in the judicial forfeiture action, Babb
returned to district court and moved for the return of the cash
seized from him, as well as interest and related attorneys fees.
The district court entered an order awarding Babb the money but
denying him interest and fees.
order. The primary issue is whether the district court should have
returned the money to Babb in the first place.
The government
quiet
title
proceedings.
to
the
currency
through
statutory
forfeiture
demonstrating
currency.
that
Babb
is
not
lawfully
entitled
to
the
whether Babb may lawfully claim this money, we vacate and remand
for the court to make such a determination.
I.
In June 1991, a confidential informant identified for police
officers in Spartanburg, South Carolina, a number of individuals,
including
Babb,
who
were
interested
in
purchasing
marijuana.
retained
custody
of
the
cash
State prosecutors
seized
from
Babb
and
September
1993,
the
DEA
brought
an
administrative
If no
person files a timely claim for the property, the government may
declare the property forfeited.
If,
1999); see also United States v. Minor, 228 F.3d 352, 354 (4th Cir.
2000).1
district court agreed and ordered that the DEA must either return
the money to Babb or commence judicial forfeiture proceedings in
the district court.
JA 35-36.2
The district
The government did not appeal this ruling--only Babb did, and
on a point not relevant here.
See Babb v. United States Drug
Enforcement Admin., 172 F.3d 862, 1999 WL 31159 (4th Cir. Jan. 26,
1999) (unpublished).
3
See
United States v. Babb, 54 Fed. Appx. 772, 774 (4th Cir. 2003) (per
curiam).
J.A. 50.
under the same caption and civil action number as his action to set
aside the administrative forfeiture. Indeed, the motion for return
of the $57,960 was based solely upon the order of the district
court entered in that action on May 20, 1998, directing the DEA to
return
the
proceedings.
money
to
Babb
or
commence
judicial
forfeiture
U.S.C.A. 2465 (West Supp. 2005), and the Equal Access to Justice
Act, see 28 U.S.C.A. 2412 (West 1994 & Supp. 2005).
On March 1, 2004, the district court denied Babbs request for
interest and attorneys fees, but did not address Babbs motion for
the currency itself.
II.
The government argues that, despite its unsuccessful attempts
to use the shortcuts and presumptions afforded through statutory
administrative and judicial forfeiture proceedings, Babb is not
entitled to the return of the $57,960 seized from him during the
undercover drug sale. Relying on decisions by the Second and Tenth
See Alli-Balogun v.
United States, 281 F.3d 362, 371-72 (2nd Cir. 2002); United States
v. Clymore, 245 F.3d 1195, 1200 (10th Cir. 2001).
We agree with
proceedings
is
opposi[tion]
[to]
civil
this
latter
property--responding
to
means
a
of
quieting
claimants
title
equitable
to
seized
action--is
it
presents
greater
procedural
obstacles
to
the
forfeiture process, it
can still perfect its title to the seized property, but
rather than do so by means of a judicial forfeiture
proceeding in which the governments case is assisted by
presumptions, it is relegated to opposing a Rule 41(e) or
civil equitable motion filed by the claimant in which the
government los[es] the benefit of the opportunity to
perfect its right to title by using the statutory
shortcuts, presumptions, and statutory burdens of proof.
Alli-Balogun, 281 F.3d at 371 (quoting Clymore, 245 F.3d at 1201).
The Tenth Circuit provided this concise comparison:
In a forfeiture action, if the government establishes
probable cause to seize the subject property, the
claimant bears the burden of proving that the requested
forfeiture does not fall within the four corners of the
statute [and i]f no such rebuttal is made, a showing of
10
United States v.
Id.
The government
Id.
irrebutable
presumption
of
ownership
in
property
seized
in
21
States, 302 F.3d 182, 187 (3rd Cir. 2002); Alli-Balogun, 281 F.3d
at 371; Clymore, 245 F.3d at 1201; Kadonsky v. United States, 216
F.3d 499, 507 (5th Cir. 2000).
The remaining
III.
Regardless of whether the government ordinarily has means
other than forfeiture to establish its right to retain currency
seized during a drug transaction, Babb argues that the government
is barred from pursuing these means in this case.
Specifically,
Babb views the district courts order of May 20, 1998, directing
that the government return the seized funds to Babb or commence
judicial forfeiture, as dispositive of the issue of his right to
the currency.
13
A.
Babb contends that the governments notice of appeal, filed
July
22,
2004,
jurisdiction
was
over
the
untimely,
leaving
cross-appeal.
us
See,
without
e.g.,
appellate
Browder
v.
Director, Dept of Corr., 434 U.S. 257, 264 (1978) (explaining that
the
filing
of
jurisdictional).
timely
notice
of
appeal
is
mandatory
and
nothing more than a challenge to the May 1998 order which directed
the government to return the money or commence a forfeiture action
in district court.
Therefore,
14
not the timeliness of the notice of appeal, but rather that the
government is trying to raise an issue -- Babbs entitlement to the
cash -- that, in Babbs view, was or could have been settled
previously.
U.S. 375, 384 (2003) (explaining that [t]he law of the case
doctrine . . . simply expresses common judicial practice; it does
not limit the courts power (internal quotation marks omitted));
Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (noting that
the res judicata doctrine is an affirmative defense subject to
waiver); United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002) (observing that the mandate rule is not jurisdictional).
B.
We now turn to Babbs alternative position that even if we
have jurisdiction to consider the cross-appeal, the governments
arguments are barred by either the doctrine of res judicata or the
doctrine of waiver and the mandate rule. Res judicata includes the
related concepts of claim preclusion and issue preclusion.
Issue
Sedlack v. Braswell
Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998) (internal
quotation marks and citation omitted).
In re Varat
Both doctrines
16
F.3d 576, 583 (4th Cir. 2004) (noting that the mandate rule is a
more powerful version of the law of the case doctrine (internal
quotation marks omitted)).
Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (emphasis
added) (internal quotation marks omitted).
Because we view the district courts May 20, 1998, order as
having been entered in an earlier stage of this litigation, not in
a prior separate action, we find that the mandate rule and the
doctrine of waiver fit better analytically than res judicata.
After the district court directed that the DEA must either return
the money to Babb or commence judicial forfeiture proceedings in
the district court,
commenced
forfeiture
separate
action.
When
this
court
17
have challenged the district courts May 20, 1998, order at the
time it was entered, and that its failure to do so amounted to a
waiver of its ability to challenge the directive that the money be
returned to Babb.
See South
demonstrates that the district court did not decide this issue in
its May 20, 1998, order.
the money, that the DEA seized it, and that the DEA failed to
asserted that William Lunsford, a DEA agent who took custody of the
seized currency from state officials, was individually liable for
the currency.
Instead of filing an answer, the government moved immediately
to dismiss the complaint on the grounds that the district court did
not have subject matter jurisdiction over Babbs claims and that
Agent Lunsford was protected by qualified immunity.
The district
On May 20,
J.A.
19
must
either
return
the
money
to
Babb
or
commence
judicial
J.A. 35-36.
The
Drug Enforcement Admin., 172 F.3d 862, 1999 WL 31159 (4th Cir. Jan.
26, 1999) (unpublished) (affirming the dismissal of Babbs claims
against Agent Lunsford individually).
The district courts ruling simply permitted Babb to have his
day in court to contest the governments right to the money and
precluded
the
government
from
holding
the
money
indefinitely
in
judicial
forfeiture
proceeding
in
which
the
See
United States v. $557,933.89, 287 F.3d 66, 77 (2nd Cir. 2002) (It
must be remembered that what is adjudicated in a judicial civil
forfeiture proceeding is the governments right to the property,
not the claimants . . . .
Hence, the
The
court did not discuss, much less reach, an alternate holding in the
20
district court reasonably left open the issue of whether Babb was
legitimately entitled to the money if the government was unable to
establish title through forfeiture proceedings.
issue was left open, the government did not waive it by failing to
raise it previously, nor is the government barred by the mandate
rule from taking this position in this appeal.
Because there has been no determination as to whether Babb is
lawfully entitled to the currency, we remand Babbs claim to the
district court.
21 U.S.C.A. 881(a)(6).
We
IV.
We conclude that the district court prematurely ordered that
the currency be returned to Babb without determining whether he was
21
argument that the district court erred in denying his claim for
interest and attorneys fees.
VACATED AND REMANDED
22