# Petition for Writ of Certiorari — Allen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1078

## Text

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

ROWLAND LAMAR ALLEN, ET AL
Petitioner,

7.

UNITED STATES,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

HYLTON B. DUPREE, JR.
(Counsel of Record)
MARK A. JOHNSON

A. GREGORY POOLE

P.O. Box 525

Marietta, GA 30061
(404) 242-7171

November 20, 1989

i
QUESTIONS PRESENTED FOR REVIEW

May Petitioners seek the vacating of forfeiture default judg-
ments pursuant to FRCP Rule 60(b) premised upon the subse-
quently-decided authority in U.S. v. $38,000 in U.S. Currency,
816 F.2d 1538 (llth Cir., 1987), or are they so precluded by the
doctrine of res adjudicata?

Does the government’s failure to serve forfeiture warrants
(with attendant notice requirements as to claim filing requi-
sites) offend due process and void forfeiture actions ab initio, so
that resulting default judgments are nullities?

Is the government “subjected to injustice and hardship” by
permitting Petitioners a hearing on the merits, or is forfeiture
favored so that appropriate remedies could not be fashioned to
address the government’s forfeiture windfall?

ii
CERTIFICATE OF INTERESTED PERSONS

United States of America, Rowland Lamar Allen, Mid-Town
Contractors, Inc. and Property Pick-Up, Inc., and certain real
estate property located at: 764 Rochelle Drive; 1546 Alda Lane;
148 Atlanta Avenue; 1952 Willa Way; 2929 Landrum Drive,
S.W.; 4370 Valley Brooke Drive; 1542 Pineview Terrace, S.W.;
2244 Brannon Road; 2306 N. Eiffel Court; 2264 Collier Drive;
3299 Rabun Drive; 2424 Dawn Drive; 3357 Columbia Trace;
1194 Greenleaf Road; 1382 Oak Street; 948 Byron Drive; 3171
Topaz Lane; 2240 Squire Court; 2820 Valley Ridge Drive; 5864
Deerfield Trail; 2225 Swallow Circle; Business and properties
of Midtown, et al. 1061, 1097, 1081, 1088, 1073, 1089 Neal Place;
2971 Landrum Drive; One (1) 1979 Cadillac Eldorado, One (1)
1983 Mazda, One (1) 1979 Mercedes Benz.

iil

TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW .......ccsssssscssssssssssssssssssssssssse i
CERTIFICATE OF INTERESTED PERSONS ..........sssscsssccssssssssseseeeee ii
TAM CTT cnc cccac cence iii
EE Ee iv
JURISDICTIONAL GROUNDS 0.0.......s..ssscsccsvssssssssvssssssssssssssssssessesesssee vii
.sscnstunsusmapussiisasenaonin Vili
a ss cssvensscannennssnccanerevsnsteoss 1

EEE es |

lv

TABLE OF AUTHORITIES

CASES: Page
U.S. v. $38,000.00 in U.S. Currency,

816 F.2d 1538 (11th Cir., 1987) .................. 3-7, 11, 14-16
Rubin v. Johns, 109 F.R.D. 174, 178)

i I cictensabiatdassaebeheaishbcascishacaniininniianianneneaveneenieten 1, 12
Hardison v. Alexander, 655 F. 2d 1281,

SIE CHAE, GE, Fe Patines crccssctsccnescevcsresnccesevcccene 1,9, 13
Precision Air Products, Inv. v. Aveco Corp.,

736 F.2d 1499, 1503 (11th Cir. 1984)................ 1, 7, 9, 13
Douglas Guardian Warehouse Corp. v. Posey,

486 F.2d 739, 742-TA4S .........0..0ccccccccccccscsccoscescosccsees 1, 9, 13
United States v. $39,000 in Canadian Currency,

801 F.2d 1210, 1216-19 (10th Cir. 1986) .............. eee 7
United States v. $4,255,000, 762 F.2d

895, 903 (11th Cir. 1985) ....................ccccccsscresrscnsssseeseees 7
United States v. Pole No. 3172, Hopkinton,

852 F.2d, 636 (1st Cir. 1988) ...................ccsscccsrreersesessees 7
United States v. Certain Real Estate Property,

612 F. Supp 1492, 1495, Dist. Ct. Fla. 1985)................ 11
United States v. United States Currency Totaling $3,817.49,

OT BI FE ciciocctccnnetntianicsentvnsctneinnensenneemninniits 11
U. S. v. Beechcraft Airplane, Serial #LD-24,

789 F.2d 627 (8th Cir. 1986) ................cccceecreceesererereees 11
United States v. One Assortment of 89 Firearms and 638

Rounds of Ammunition,

846 F.2d 24 (6th Cir. 1988) .............ccccceeeeseereereeseereeseenes 12

United States v. One 1936 Model Ford V-8 Deluxe Coach,
307 U.S. 219, 226, 59 S. Ct. 861, 865, 83 L. Ed. 1249
(1939) .........ccccccceccecceccesersecsccesscsencesessnssssssoossssesseseeseseses 12

Vv

Table of Authorities Continued

Page
United States v. One Mercedes 450 SE,
651 F. Supp. 351 (S.D. Fla. 1988) ......................ccccccccesseee 8
United States v. Strawser,
800 F. 2d 704, 709 (7th Cir. 1986) .0.......ccccccccccccccccccccceeeee 8

Anderson v. United States,
480 U.S. 906, 107 S. Ct. 13850, 941 L.Ed. 2d 521 (1987) 8

American Reserve Corp.,

GE ae Wey We CPU Che. 1087) .onnnnncccccccccccscccccsseccesessss 8
United States v. Kramer,

827 F.2d 1174, 1179 (8th Cir. 1987) 0... ee eeeeeeeeeee 8
United States v. Life Insurance Company of Virginia,

647 F. Supp., 732, 739 (WD.N.C. 1986) ..........cce eee 13

Hanover Shoe v. United Shoe Machinery Corporation.,
392 US 481, 20 L Ed 2d 1231, 88 S. Ct. 2224 (1968)14-15

American Tobacco Co. v. United States,

328 US 7681 90 L. Ed 1575, 66S. Ct. 1125 oc. 14
United States v. U S Currency in the Amount of $103,387.27,

| 7
United States v. 1982 Yukon Delta Houseboat,

774 F.2d 1432 (Oth Cir. 1985) .........................000.....00000 7,8
United States v. $149,345 in U.S. Currency,

749 F.2d 1278, 1282 (9th Cir. 1984) o.oo eee 8
Deitchman v. E.R. Squibb & Sons Inc.,

740 F2d 556, 563 (7th Cir. 1984)... cccceeeeeeeee 4

United States v. Properties described in Complaints: 764 Roch-
elle Drive,
612 F. Supp. 465, 467 N3 N.D. Ga. 1984 Aff.d 79 F.2d 58
ali cleat silsdencensnsennnesunincnananssanecoeteeen 8

vi

Table of Authorities Contirued

Page
STATUTES:
BL UF BB.C. GBD Card CGD vnacecenececorscnsrrecncccenccencecosescesessescsnsain 2-5, 15
21 U.S.C. Sec 881 (d), Supplemental Rule A)...................+. 15
19 U.S.C. Sec 1607: 19 CFR Sec 162.31 ...........ccccseceseeeeeeeees 6
MISCELLANEOUS:
7 Moore’s Fed. Practice Sec. 60.41 (1) .........ccccsecesereeeeeeeeees 10
7 Moore’s Fed. Practice Sec. 60.36, et seq. FRCP 55 (C) ...10
7 Moore’s Fed. Practice, Sec. 60.19 ....c....cccceeceessessssseseeeeees 13
SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND
MARITIME
Supplemental Rule C (3)...............sscsssessssrsersenresesenseesssesenesees 6
Supplemental Rule C (6)..........:c.scssecseessenseeneenseneeeeennneensnenenes 6
Supplemental Rule. E (2)..........:cssccsessecseeceseeeseeeeeeeeeenaneneeseeses 6
FEDERAL RULES OF CIVIL PRACTICE
Civil Procedure Bike 400) q........cssccorsscscosccssccsescnsscecssessesessecs 15

Rule 60 (b) Fed. R. Civ. P. ........ccccsecceneeeeneeeeeeneennnes 1, 5, 10-11

vii
JURISDICTIONAL GROUNDS

Jurisdiction inheres in this Court, as Petitioners appeal the
Dismissal of their Complaint, filed pursuant to FRCP 60, to
contest the summary forfeiture of their properties under 21
U.S.C. 881 (a) (6) to the United States.

Order of Dismissal was entered in the United States District
Court on August 17, 1988, and Petition For Rehearing En Banc
was denied and entered by the Eleventh Circuit Court of
Appeals on August 25, 1989.

The Dismissal of the Complaint constitutes a final, appeal-
able judgment under 28 U.S.C. §4291.

viii
PERTINENT STATUTES
21 U.S.C.A. 881. Forfeitures.

Property Subject (a) The following shall be subject to forfei-
ture to the United States and no property right shall exist in
them:...

(6) All moneys, negotiable instruments, securities, or other
things of value furnished or intended to be furnished by any
person in exchange for a controlled substance in violation of this
subchapter, all proceeds traceable to such an exchange, and all
moneys, negotiable instruments, and securities used or in-
tended to be used to facilitate any violation of this subchapter,
except that no property shall be forfeited under this praragraph
to the extent of the interest of an owner, by reason of any act or
omission established by that owner to have been committed or
omitted without the knowledge or consent of that owner.

Seizure pursuant to Supplemental Rules for Certain Admi-
ralty and Maritime Claims, (b) Any property subject to forfei-
ture to the United States under this subchapter may be seized
by the Attorney General upon process issued pursuant to the
Supplemental Rules for Certain Admiralty and Maritime Claims
by any district court of the United States having jurisdiction
over the property...

F.R.C.P. Rule 55. Default.

(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a de-
fendant is for a sum certain or for a sum which can by
computation be made certain, the clerk upon request of the
plaintiff and upon affidavit of the amount due shall enter
judgment for that amount and costs against the defendant,
if the defendant has been defaulted for failure to appear and
is not an infant or incompetent person.

ix

(2) By the Court. In all other cases, the party entitled to a
judgment by default shall apply to the court therefore; but
no judgment by default shall be entered against an infant or
incompetent person unless represented in the action by a
general guardian, committee, conservator, or other such
representative who has appeared therein. Ifthe party against
whom judgment by default is sought has appeared in the
action, the party (or, if appearing by representative, the
party’s representative) shall be served with written notice of
the application for judgment at least 3 days prior to the
hearing on such application. If, in order to enable the court
to enter judgment or to carry it into effect, it is necessary to
take an account or to determine the amount of damages or
to establish the truth of any averment by €tvidence or to
make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems
necessary and proper and shall accord a right of trial by jury
to the parties when and as required by any statute of the
United States.

(c) Setting Aside Default. For good cause shown the court may
set aside an entry of default and, ifajudgment by default has
been entered, may likewise set it aside in accordance with

Rule 60(b).
~F.R.C.P. Rule 60. Relief from Judgment or order.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discov-
ered Evidence; Fraud, etc. On motion and upon such terms
as are just, the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence, sur-
prise, or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in
time to move for a new trial under Rule 5%b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;

x

(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within
a reasonable time, and for the reasons (1), (2), and (3) not
more than one year after the judgment, order, or proceeding
was entered or taken. A motion under this subdivision (b)
does not affect the finality of a judgment or suspend its op-
eration. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a
judgment, order, or proceeding, or to grant relief to a
defendant not actually personally notified as provided in
Title 28, USC § 1655, or to set aside a judgment for fraud
upon the court. Writs of coram nobis, coram vobis, audita
querela, and bills of review and bills in the nature of a bill of
relief are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion as prescribed in
these rules or by an independent action.

SUPPLEMENTAL RULES FORCERTAIN ADMIRALTY AND
MARITIME CLAIMS RULE C. Actions in Rem:

Special Provisions
(1) When available. An action in rem may be brought:
(a) To enforce any maritime lien;

(b) Whenever a statute of the United States provides for
a maritime action in rem or a proceeding analogous thereto.

(2) Complaint. In actions in rem the complaint shall be
verified on oath or solemn affirmation. It shall describe with
reasonable particularity the property that is the subject of
the action and state that it is within the district or will be

xi

during the pendency of the action. In actions for the enforce-
ment of forfeitures for violation of any statute of the United
States the complaint shall state the place of seizure and
whether it was on land or on navigable waters, and shall
contain such allegations as may be required by the statute
pursuant to which the action is brought.

(3) Process. Upon the filing of the complaint the clerk shall
forthwith issue a warrant for the arrest of the vessel or other
property that is the subject of the action and deliver it to the
marshal for service. If the property that is the subject of the
action consists in whole or in part of freight, or the proceeds
of property sold, or other intangible property, the clerk shall
issue a summons directing any person having control of the
funds to show cause why they should not be paid into court
to abide the judgment.

(4) Notice. No notice other than the execution of the process
is required when the property that is the subject of the action
has been released in accordance with Rule E (5). If the
property is not released within 10 days after execution of
process, the plaintiff shall promptly or within such time as
may be allowed by the court cause public notice of the action
and arrest to be given in a newspaper or general circulation
in the district, designated by order of the court. Such notice
shall specify the time within which the answer is required
to be filed as provided by subdivision (6) of this rule. This
rule does not affect the requirements of notice in actions to
foreclose a preferred ship mortgage pursuant to the Act of
June 5, 1920, ch. 250, SSD 30, as amended.

(6) Claim and Answer; Interrogatories. The claimant of
property that is the subject of an action in rem shall file his
claim within 10 days after process has been executed, or
within such additional time as may be allowed by the court,
and shall serve his answer within 20 days after the filing of
the claim. The claim shall be verified on oath or solemn af-

xii

firmation, and shall state the interest in the property by
virtue of which the claimant demands its restitution and the
right to defend the action. If the claim is made on behalf of
the person entitled to possesion by an agent, bailee, or
attorney, it shall state that he is duly authorized to make the
claim. At the time of answering the claimant shall also serve
answers to any interrogatories served with the complaint.
In actions in rem interrogatories may be so served without
leave of court.

met he tay I

RULE E. Actions in Rem and Quasi in Rem: General Provisions

(1) Applicability. Except as otherwise provided, this rule ap-
plies to actions in personam with process of maritime at-
tachment and garnishment, actions in rem, and petitory,
possessory, and partition actions, supplementing Rules B,
C, and D.

een

(2) Complaint; Security.

’ (ay Complaint. In actions to which this rule is applicable,
the complaint shall state the circumstances from which the
claim arises with such particularity that the defendant or
claimant will be able, without moving for a more definite
statement, to commence an investigation of the facts and to
frame a responsive pleading.

1
Statement of the Case

This Petition is from the order and judgment of The United
States District Court, Northern District of Georgia, Atlanta Di-
vision entered August 17, 1988, by Judge Robert H. Hall, which
effectively granted Defendant United States of America’s Mo-
tion to Dismiss Plaintiffs’ Complaint and “terminate(d) this
action.” This Order has been affirmed without opinion by the
11th Circuit Court of Appeals.

Under the auspices of Rule 60(b) Fed.R.Civ.P., Petitioners
sought to vacate numerous judgments of default entered by the
same court in forfeiture actions brought against the Petitioner
properties in 1984.

The Order of Complaint Dismissal and action termination
essentially held that the previous default ruling should be given
res judicata effect, relying upon the concept that void judgments
are narrowly construed, Rubins v. Johns, 109 F.R.D. 174, 178
D.V.A. (1986); Civil judgments should not be collaterally at-
tacked on the basis of sebsequent judicial pronouncements,
Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981);
that the interests of Petitioners do not rely upon judicial
decisions which involve momentous changes in important,
fundamental constitutional rights, Precision Air Parts, Inc. v.
Aveco Corp., 736 F.2d 1499, 1503 (llth Cir. 1984); and that a
hearing on the merits in this case would “work an injustice and
a hardship” on parties who may have acquired vested rights
under the judgments. Douglas-Guardian Warehouse Corp. v.
Posey, 486 F.2d 739, 742-743 (10th Cir. 1973).

Statement of Facts

On or about March 8, 1984, agents of the Drug Enforcement
Administration (DEA), seized the Petitioner properties, relying
upon the affidavits of DEA Agent Melvin Smith. They recited
that Petitioner properties constituted profits and/or fruits of a

2

continuing criminal enterprise; and that Petitioner properties
were subject to civil forfeiture pursuant to 21 U.S.C. 881 (a) (6).
The affidavits were devoid of facts.

Once the Petitioner properties were seized in accordance
with the arrest warrants, the Government filed Complaints for
Forfeiture on or about March 9, 1984, against Petitioner prop-
erties. Each complaint was skeletal in form and simply stated
that there was probable cause to believe Petitioner properties
represented proceeds traceable to an exchange for a controlled
substance and, thereby was subject to forfeiture under 21
U.S.C. 881. The complaints were bereft of specific allegations
that could connect the Petitioner properties to the continuing
criminal enterprise referenced in Melvin Smith’s affidavits at
paragraph 6.

After the filing of the Complaints for Forfeiture, summons
were issued on each piece of Petitioner property. These sum-
mons were directed to the claimants of the Petitioner property
and informed them that they had twenty (20) days to answer the
complaint for forfeiture. Nowhere in the summons did it inform
the claimants that, according to Rule C of the Supplemental
Admiralty and Maritime Claims Act, they must file claims to
the Petitioner properties within ten (10) days from service of the
warrant. While the ten-day claim requirement was denoted to
the United States Marshall in seizure warrants, it nowhere
appeared in any document served on Petitioner.

Additionally, the Seizure Warrant erroneously declared
that a claim must be filed within ten days of service of the
Complaint rather than service of the Warrant. The Warrants of
Arrest of property, containing reference to the 10-day claim
period from service of the Arrest Warrants, were never served
on any natural Petitioner.

Petitioners submit this lack of notice proximately caused
Petitioner, Rowland Allen, to be justifiably “dilatory” in filing

3

the necessary claim to the Petitioner properties, although the
10-day period has actually not begun to run to this day. Rowland
Allen did not file a claim to the Petitioner properties within the
“required” ten (10) days as determined by Judge Hall, but he
attempted to mitigate his predicament by filing a claim at a
later date.

Rowland Allen was subsequently acquitted of the continu-
ing criminal enterprise charge that constituted the basis of
Special Agent Melvin Smith’s Affidavit for Seizure Warrant.

After Rowland Allen filed his initial claim, the Government
argued that his claim was not filed on time and, therefore,
should preclude him from defending the case on its merits. The
Court agreed with this position and issued an Order that
prevented Rowland Allen’s from defending the forfeiture action.

While Petitioners sought reconsideration, default judgments
were entered in all cases on November 27, 1984.

The Petitioner properties were subsequently sold by the
Government at an auction and the Government retained the
proceeds from these sales. Following the decision in U.S. v.
$38,000 in U.S. Currency, 816 F. 2d 1538, (llth Cir., 1987),
Petitioners brought the underlying Complaint and Amendment
to the Complaint, reasoning that the ubiquitous defects in the
seizure process and Complaints for Forfeiture rendered the
default judgments null and void from their inception, as there
was never the requisite service of process to establish jurisdic-
tion.

Argument
While property forfeiture is a tool of considerable utility in
society's “war” against drugs, its use should be tempered with

some hommage to fundamental constitutional precepts. No-
tions such as “due process” and “rights against unreasonable

atatatae

4

seizure” should not be hollow musings or antiquated verbiage
winked at cynically, but should be honored more in the obser-
vance than in the breach.

Petitioners have been deprived of properties through the ex-
pedient of default judgments, when it is readily apparent that
petitioners were never served with arrest warrants, were never
apprised of ten (10) day claim periods, and that these gargan-
tuan inadequacies directly inhere from numerous mistakes
committed by the U.S. Attorney and the Clerk of Court. These
assertions are not in dispute. Petitioners only seek a hearing on
the merits — a decidedly modest proposal, somewhere echoed in
the annals of American Law. Yet the ultimate irony is that the
predicate offense underlying the property seizure (a claim of
continuing criminal enterprise), has been dismissed. Hence,
this meritorious defense underscores that there has been more
than “harmless error.”

Forfeiture law is presently a hopeless melange of conflicting
interpretations of Admiralty and Maritime Procedure quixoti-
cally applied to high and dry property. Judge Kravitch has
decried this “procedural morass” which spawns considerable
entropy and confusion, thereby resulting in confiscation of prop-
erty through default rather than meritorious application. For-
feiture, as a tool, should be skillfully wielded rather than used
as a bludgeon.

This Court must clarify the pastiche which currently passes
for forfeiture law, and lend viability and protection to the
precepts of property rights.

From the inception of American Constitutional Law, forfei-
tures have been abhored until Rowland Allen and his various
properties were snared in the 21 U.S.C. section 881 dragnet.
The previous entreaties of Rowland Allen fell upon deaf ears.
Not until the Eleventh circuit addressed the pervasive inade-
quacies utilized under 21 U.S.C. section 881 in U.S. v. $38,000.00

5

in U.S. Currency, 816 F.2d 1538 (llth Cir. 1987), was a Court
willing to admit the manifold travesties of application wit-
nessed in recent government forfeiture actions. The parallels of
$38,000.00 to the case of sub judice are salient, including almost
identical pro forma “affidavits,” and identical government of-
fices with the same “canned” pleadings, which contain the same
errors. Furthermore, Rowland Allen was never served with the
property warrants demanded under 21 U.S.C. section 881;
accordingly, he was never informed of the 10-day claim period,
making default so much the easier to engineer.

Rowland Allen and the named properties were never af-
forded a hearing on the merits of the government’s forfeiture
claims, and all attempts at judicial relief failed. Following the
Eleventh Court’s decision in $38,000.00, Petitioners filed a
Complaint under the auspices of Rule 60{b) of the Federal Rules
of Civil Procedure, claiming that the same defects decried in
$38,000.00 attain due process magnitude and demanded their
vacating as having been void ab initio.

The default mechanism utilized by the Government was a
ten-day claim period denoted in arrest Warrants never served
on Petitioners. The Court misconstrued service of a Complaint
delineating a 20-day response period as apparently triggering
the ten-day claim period. Even those unschooled in law or the
Constitution perceive the fundamental unfairness of serving a
complaint summons, containing a twenty-day answer refer-
ence, and then eviscerating Petitioners because they did not file
a claim (not an answer) within ten days. The summons makes
absolutely no reference to the claims requirement, nor to the
Supplemental Rules for Certain Admiralty and Maritime Claims
under which the claims must be submitted. Query: How is
anyone in such a situtation reasonably expected to be able to
comply with undisclosed time and claim requirements? As
Judge Kravitch has noted in U.S. v. $38,000.00 in U.S. Cur-
rency, 816 F.2d 1538 (llth Cir. 1987), “the application of these
‘supplemental admiralty and maritime claims’ rules to Section

6

881 forfeitures has created a procedural morass — a morass in
which the parties to the instant action become hopelessly en-
tangled.” Ibid, page 1540.

On facts with obvious parallels to the instant case, Judge
Kravitch in $38,000.00 ruled that as the government never
properly executed process, the property owners there were not
obligated to file within the ordinary time constraints. The Court
determined that the warrant for the arrest of the property must
be served by the United States Marshall and that notice of the
seizure “together with information on the applicable procedures
to each party who appears to have an interest in the seized
article” must also be directed to the appropriate individuals. 19
USC Sec 1607: 19 CFR Sec 162.31. Judge Kravitch ruled that
process is executed once, but not until, the warrant for the arrest
of the property is served in accordance with Supplemental Rule
C(3). Until then, no ten-day claim requirement manifests under
Supplemental Rule C(6). As in the instant cases, the warrant
there was itself deficient as it demanded filing of a claim within
ten days of the service of the Complaint, rather than from
service of the warrant. Again, warrants and summons were
never even served in the instant case. The Court in $38,000.00
furthermore scrutinized the complaint for forfeiture and deemed
it to be so devoid of facts as to mandate dismissal of the
government’s complaint. In the instant case, the only fact
enumerated that in March of 1984, agents of the Drug Enforce-
ment Administration seized each of the Petitioner properties.

The Court in $38, 000.00 specifically referred to Supplemen-
tal Rule E(2 ) which establishes the standards of factual particu-
larity for forfeiture complaints filed pursuant to Supplemental
Rule C. A forfeiture complaint must “state the circumstances
from which the claim arises with such particularity that the
defendant or claimant will be able, without moving for a more
definite statement, to commence an investigation of the facts
and to frame a responsive pleading.” There are no exceptions to
this requirement, and the Court ruled there that the complaint

7

was completely bereft of factual support for the government’s
allegation that it had probable cause for forfeiture under Sec.
881. Held the Court:

“We agree and hold that a Section 881 (a) forfeiture
complaint must allege sufficient facts to provide a rea-
sonable belief that the property is subject to forfeiture:
in particular, that the government has probable cause to
believe that a substantial connection exists between the
property to be forfeited and the exchange of a controlled
substance.” $38,000.00, page 1548.

The Court’s ruling in $38,000.00 is consistent with rulings
in United States v. $39,000.00 in Canadian Currency, 801 F.2d
1210, 1216-19 (10th Cir. 1986); United States v. $4,255,000.00,
762 F. 2d 895, 903 (11th Cir. 1985); U.S. v. Pole No. 3172,
Hopkinton, 852 F. 2d 636 (Ist Cir. 1988); United States v. U.S.
Currency in the amount of $103,387.27, 863 F.2d 555 (7th Cir.
1988); United States v. 1982 Yukon Delta Houseboat, 774 F.2d
1432 (9th Cir., 1985); U.S. v. One Assortment of 89 Firearms and
638 Rounds of Ammunition, 846 F. 2nd 24 (6th Cir. 1988); U.S.
v. Beechcraft Airplane, Serial #LD-24, 789 F. 2nd 627 (8th Cir.
1986); and Precision Air Products, Inv. v. Aveco Corp., 736 F.
2nd 1499, 1503 (11th Cir. 1984). However, these cases are
inconsistant with the ruling set forth in the instant case.

While this Supreme Court requires that meticulous atten-
tion be paid to detail, it also requires that the proper procedural
rules of due process be liberally applied. In the instant context,
Rule C(6) requires a claimant to file his claim within ten days
after service of process of the arrest warrant on the property, or
within such additional time as may be allowed by the Court. It
is the responsibility of the district courts to assure that service
is proper prior to entertaining default. It is thus within the
district court's discretion to permit or correct any procedural
errors in the case or permit an extension of time to file a claim.

8

See United States v. 1982 Yukon Delta Houseboat, 774 F.2d
1432 (9th Cir. 1985); United States v. One (1) Mercedes 450 SE,
651 F. Supp. 351 (S.D. Fla. 1988).

The question presented is whether the district court abused
its discretion in entering default without assuring that default
had in fact occurred. As there was no service, no default entry
was proper. An abuse of discretion occurs when a relevant
factor that should have been given significant weight is not
considered or when the court fails to analyze the applicable
factors. United States v. Strawser, 800 F.2d. 704,709 (7th Cir.
1986) denied sub nom. Anderson v. United States, 480 U.S. 906
107 S.Ct. 1350, 94 L.Ed. 2d 521 (1987): In re. American Reserve
Corp., 841 F.2d 159, 162 (7th Cir. 1987) (abuse of discretion
standard implies that the judge must actually exercise his
discretion): United States v. Kramer, 827 F.2d 1174, 1179 (8th
Cir. 1987). See also United States v. $149,345 in U.S. Currency,
747 F.2d 1278, 1282 (9th Cir. 1984).

There is no evidence in the instant case that the court
considered relevant factors when exercising its discretion in
entering default. This is apparent, as the respective files do not
reflect the service mandated under Rule C(6) and under funda-
mental constitutional precepts of notice, and in further ascrib-
ing "bad faith manipulation" to petitioners, when the govern-
ment does not now dispute the underlying facts. See United
States v. Properties described in Complaints: 764 Rochelle
Drive, 612 F. Supp. 465, 467 N3 N.D. Ga. 1984 Aff.d 79 F.2d 58
(11th Cir. 1985), which is the instant case. Under the abuse of
discretion standard, the proper inquiry is not how the reviewing
court would have ruled if it had been considering the case:
rather, whether any reasonable person could agree with the
district court. Deitchman v. E.R. Squibb & Sons Inc., 740 F.2d
556, 563 (7th Cir. 1984).

In the case of U.S. v. $38,000.00 in U.S. Currency, 816 F. 2d
1538 (11th Cir. 1987), the Court reversed Judge Hall’s orders

a

9

and dismissed the government’s complaint without prejudice in
order that the matter could be rebrought and adjudicated on its
merits. Held the Court:

“We are not unsympathetic to the government’s
strong desire to eradicate drug trafficking: we recognize
that illegal drugs pose a tremendous threat to the integ-
rity of our system of government. We must not forget,
however, that at the core of this system lies the
Constitution, with its guarantes of individual’s rights.
We cannot permit these rights to become fatalities of the
government’s war on drugs.” Ibid, Page 1549.

_In the instant case, Petitioners seek only an opportunity to
have this matter resolved on its merits. The Order dismissing
Petitioners’ complaints (and the termination of their respective
actions) fails to address the viability of Federai Rule of Civil
Procedure 60 as to the relief it affords from judgments or orders.

Rule 60(b) holds “on motion and upon such terms as are
just, the Court may relieve a party or a parties’ legal
representative from a final judgment, order, or proceeding
for the following reasons: . . .(4) the judgment is void; . . .or
(6) any other reason justifying relief from the operation of
the judgment.”

Rather, the entered order elides in its reliance upon lines of
cases which essentially trumpet the finality of judgments. See
Precision Air Parts, Inc. v. Aveco Corp., 736 F.2d 1499, 1503,
(llth Cir. 1984), cert. denied, 469 U.S. 1191 (1985); Hardison v.
Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); Douglas-
Guardian Warehouse Corp. v. Posey, 486 F.2d 739 (10 Cir.
1973).

Professor Moore clearly states that the District Court has
power to grant Petitioners relief from void judgments, and

i

10
Petitioners claim these forfeiture actions were void ab initio.

“[a] void judgment . .. may be collaterally attacked, i.e.,
its nullity and ineffectiveness asserted at any time, in any
proceeding where the validity of the judgment comes in
issue and is appropriately challenged. The principle under-
lying collateral attack is that since the judgment is void, the
attacking party need show no ‘equities’ or ‘merit’ in his favor;
these are irrelevant for the court now adjudges the judg-
ment to be void, it is merely recognizing and declaring that
which already existed. 7 Moore’s Fed. Practice Sec. 60.41 [1].

Since the void judgment establishes no binding legal
obligations, it should not have any res judicata effect
when its validity comes in question in any Federal
Court.

* * *

We conclude, therefore, that Rule 60(b) is dealing
with direct attacks upon judgments rendered by a Fed-
eral District Court in a civil action; and that it leaves
undisturbed the right to make a collateral attack upon
the federal judgment in any proceeding wherein the
validity of the judgment is appropriately challenged.
Laches ofa party will not infuse life into a void judgment.
The judgment is a legal nullity and may be collaterally
attacked at any time.” 7 Moore’s Fed. Practice Sec.
60.41[2].

Although Rule 60(b) seems to afford a basis for relief by
motion, the courts have consistently held that Petitioners have
the right to bring an independent action for Rule 60(b) relief as
in the case at bar. (See 7 Moore’s Fed. Practice Sec. 60.36 et sec).
F.R.C.P. 55(c) permits the court to set aside default “for good
cause shown” pursuant to Rule 60(b).

Courts have specifically ruled that forfeiture procedural in-
firmities invalidate the entire forfeiture process from its incep-

Sl ee eee

1l
tion:

“The Court views with displeasure the Attorney
General’s ability to seize real property based on a pro
forma complaint and admiralty warrant that does not
recite even basic facts which would enable a dispassion-
ate observer to objectively conclude that the property
may be subject to forfeiture. This is a defect of constitu-
tional propcrtions which invalidates the seizure process
ab initio.” United States v. Certain Real Property, 612 F.
Supp. 1492, 1495 (D.C. FLA. 1985).

In U.S. v. U.S. Currency Totaling $3,817.49, 862
F.2d 785 (8th Cir.), the property owners failed to timely
file an answer within twenty days of the filing of a claim
in a property forfeiture action, which contravened Sup-
plemental Rule for Certain Admiralty and Maritime
Claims C(6). Default judgment was entered against the
claimants, to which the 8th Circuit applied the ratio
decidendi of $38,000. In $3,817.49, the claimants filed
an unverified claim, at least putting the government on
notice that they intended to claim the property. Held the
Court in distinguishing U.S. v. Beechcraft Airplane,
Serial #LD-24, 789 F.2d 627 (8th Cir. 1986):

“Nor do we believe Beechcraft controls whether the
Gulleys’ (claimants) failure to file their answer within
twenty days of the filing of their claim requires entry of
a default judgment as Beechcraft did not address that
issue . . .Accordingly, we affirm the District Court’s
default judgment without prejudice to the claimants’
filing of a motion under Rule 60(b) of the Federal Rules
of Civil Procedure to vacate the default judgment for
mistake, inadvertance, surprise or excusable neglect.”
$3,817.49, supra, page 788.

Hence, it is apparent that sister circuits envision this

12

precise mechanism utilized by Petitioners shall afford the relief
which Petitioners seek, and res judicata is not a bar to the
institution of a Rule 60 motion/complaint.

In United States v. One Assortment of 89 Firearms and 638
Rounds of Ammunition, 846 F.2d 24 (6th Cir. 1988), the Appellate
Court excused an early filing of a verified claim where the
warrant of seizure and monition was executed by the Marshall
on August 6, 1986, after having been issued on May 27. The
Sixth Circuit, relying upon $38,000, supra, excused claimant’s
procedural oversight by noting “however, courts have excused
claimants’ noncompliance with the rules, when the noncompli-
ance was the result of their reliance on actions by the govern-
ment... Since the time for filing a verified claim did not begin
to run until the execution of the warrant of seizure, and since
the early filing of Daniel’s claim was justified by the actions of
the government, Daniel’s answer should not have been struck
and he should have been allowed to proceed to the merits of his
case.” One Assortment of 89-Firearms, supra, page 27.

This case is of particular significance, as it clarifies that Pe-
titoners, even at this stage, are not required to file verified
claims as the clear face of the record indicates that the Marshall
has not yet executed process on Petitioners. As there has been
no service, no one is in default.

The Order in the instant case justified its entry of default
judgments by noting “in the interest of finality, the concept of
void judgments is narrowly construed.” Rubin v. Johns, 109
F.R.D. 174, 178 (D.V.1. 1986). To this, Petitioners respond that
as a black-letter tenet, forfeitures are not favored in the law,
and strict compliance with the letter of the law by those seeking
forfeiture must be required. United States v. One 1936 Model
Ford V-8 Deluxe Coach, 307 US 219, 226, 59 S. Ct. 861, 865, 83
L. Ed. 1249 (1939).

As Professor Moore has noted, judgments disposing of a case

, eel eeEEEOEOOEO——EEeEeEee

ee ee en a 8

ME nica

13

without consideration of the merits (i.e. default judgments)
must be considered against a background of general preference
for disposition of cases on their substantive merits. 7 Moore's
Fed. Practice, Sec.60.19.

The Order of Dismissal brandishes several cases for the
proposition that final judgments are to be afforded great defer-
ence. See Precision Air Parts, supra, Douglas-GuardianWare-
house Corp., supra, and Hardison v. Alexander, supra. Petiton-
ers distinquish this line of cases by again noting that the earlier
proceedings were void ab initio as the warrant summons were
never served upon Petitioners and the ten day claim period has
not, even at this late date, begun to run. No service of process,
no jurisdiction.

Finality of judgments, while desirable certainly as a general
proposition, should not be exalted on some altar where Petition-
ers’ property rights represent burnt offerings. Res judicata is
not a dispositive doctrine in the present case, due to the
procedural deficiencies soley initiated and propagated by the
government.

“In those cases which seek to impound property
alleged to be related to illegal drug traffic, the govern-
ment seized claimant’s properties after obtaining war-
rants pursuant to the Supplemental Maritime Rules.
The complaints upon which the Attorney General ob-
tained these warrants did not recite even basic facts
which would enable a dispassionate observer to conclude
objectively that the property may be subject to forfei-
ture. This is a defect of Constitutional proportions which
invalidates the seizure process ab initio.” United States
v. Life Insurance Co. of Virginia, 647 F. Supp. 732, 739
(W.D.N.C. 1986).

Where actions are void from their inception, where jurisdic-
tion is not established, and where defaults are erroneously

14
entered, there is no compelling interest whatsoever in “final-
ity.”

The Trial Court eschews the application of the case of United
States v. $38,000.00 in United States Currency, 816 F.2d 1538
(ith Cir. 1987) to the case sub judice, noting that the decision
in $38,000.00 was entered on May 18, 1987, while the entry of
Default in the present case occurred on November 27, 1984.
Petitoners disagree, noting this Court’s pronouncements do not
proscribe retroactive or retrospective application of case au-
thority.

Perhaps the seminal case establishing the parameters on
retrospective application of civil decisions is to be found at
Hanover Shoe v. United Shoe Machinery Corp., 392 US 481, 20
L. Ed 2d 1231, 88 S.Ct. 2224 (1968). There, this Court grappled
with the issue of treble damages in an antitrust action concern-
ing monopolization of the shoe machinery market. At issue was
a subsequently decided case, American Tobacco Co. v. United
States, 328 US 7681 90 L. Ed. 1575, 66S. Ct. 1125, and whether
its ruling had retrospective applicability to damage determina-
tion in Hanover Shoe.

This Court held in Hanover Shoe that retrospective applica-
tion of the American Tobacco decision was warranted. This
Court in Hanover Shoe espoused that, to hold otherwise, there
must have been a clearly declared judicial doctrine which was
later overruled in favor of a new rule; if conduct performed in re-
liance upon the old rule would have hence been unlawful, then
retrospective application of the decision would be proscribed.

This Court in Hanover Shoe held that the opinion in Ameri-
can Tobacco was neither novel, nor that innovative principles
were necessary to resolve the issues there present. American
Tobacco did not adopt a “radically new interpretation of the
Sherman Act,” nor did it represent “an abrupt and fundamen-
tal shift in doctrine as to constitute an entirely new rule which

15

in effect replaced an older one. Whatever development in
antitrust law was brought about was based to a great extent on
existing authorities and was an extension of doctrines which
had been growing and developing over the years.” Hanover
Shoe, 392 US 498, 499, 20L Ed 2d 1244.

As may be discerned from an even cursory analysis of United
States v. $38,000.00 in United States Currency, supra, nothing
“new or novel” underpins the decision. Judge Kravitch notes
that the Supplemental Rules for Certain Admiralty and Mari-
time Claims (21 USC Sec 881 (d), Supplemental Rule A) were
“borrowed” (21 USC Sec 881) for forfeiture actions, as no proce-
dural rules had been specifically designed or developed to apply
to forfeiture actions. The opinion in $38,000.00 merely applies
a reasonably forseeable remedy for clear transgressions under
the referenced statutes.

The Eleventh Circuit in $38,000.00 concludes that the
property owner need not file a claim pursuant to Supplemental
Rule C(6) where the government does not viably execute proc-
ess. The face of the record in the instant forfeiture actions
demonstrate the warrant summonses were never served. Sup-
plemental Rule C(6) requires a claimant to property to “file his
claim within 10 days after process has been executed”. Rule A
of the Supplemental Rules incorporates the rules of civil proce-
dure to the extent they are not inconsistent. Civil Procedure
Rule 4(b) requires process to contain a summons which states
“the time within which these rules require the Defendant to
appear and defend, and shall notify him that in case of his
failure to do so, judgment by default will be rendered against
him for the relief demanded in the complaint.”

It requires no keen insight to realize the same government
office, these same boilerplate forms with the same errors, the
same judge and the same time frame are involved in $38,000.00
and the instant case.

16

As a result, Judge Kravitch reversed the Orders of the
District Court as to their disposition of the claims in favor of the
government and remanded the case to the District Court for
dismissal of the government’s complaint. Judge Kravitch ruled
the dismissal to be without prejudice in order that the govern-
ment reinitiate its action for adjudication on the merits of the
cases.

Even a desultory review of the $38,000.00 case reveals that
it is clearly a civil case which should be given retrospective
application. $38,000.00 is hardly promethean, in that it merely
applies the letter of the law pre-existing both under 21 USCA §
881 and the Supplemental Admiralty and Maritime Claims
Rules. No“radically newinterpretation” of these rules underpins
$38,000.00, nor was there “an abrupt and fundamental shift in
doctrine.” Judge Kravitch merely applied the letter and tenor of
the rules.

The Order of Dismissal evinces the concern of the govern-
ment in the event that Rowland Allen and the other Petitioners
are given their day in court to address the merits of the
government’s confiscation of the Petitioner properties. “If this
Court were to vacate the forfeiture judgments at this juncture,
the innocent third-party purchasers would be subjected to
injustice and hardship.”

Obviously, the benefactor is the government, which retains
the sale proceeds. It seeks tc retain its self-bestowed largesse.
The government avowed concern for innocent third parties
rings rather holiow.

Assuming arguendo that present property holders might
somehow be “subjected to injustice and hardship” if Rowland
Allen were to have his case deliberated on its merits, this does
not eliminate the prospects that other remedies could be fash-
ioned. The Federal Courts have devised remedies of far more
pervasive impact than in the case sub judice. Witness, for

17

instance, the forms of relief afforded inmates of penal institu-
tions which do not meet minimal constitutional criteria; further
witness the myriad forms of relief and remedy afforded victims
of racial and sexual discrimination.

A modest proposal for a possible remedy (if indeed, third
parties might be found, upon remand, to be subjected to injus-
tice and hardship), would be for the government to relinquish its
pecuniary windfall from its sales of the properties. Fair market
value of the confiscated property could be returned to Petition-
ers; actual sales prices of properties, with the prevailing inter-
est rate on federal judgments from time of sale could be returned
to Petitioners. The forms of possible remedies simply do not tax
the ingenuity of the Federal Judiciary in the instant case.

Conclusion

Petitioners have provided this Court a groundswell of pro-
cedural infirmities underscoring the Government’s arbitrary
seizure and forfeiture of the Petitioner properties. These fail-
ings do not represent procedural “amenities” or “technicalities,”
but go to the essence of caprice and authoritarian governmen-
tal action.

Petitioner Allen was stripped of a lifetime of earnings and
property, all without notice of the means by which he could
protect his property in contravention of the very rules bran-
dished by the government.

Despite the overwhelming evidence of failure to afford Peti-
tioners the notice to which they are entitled under the rules,
case law, and the Constitution, the Government (by order and
by advocate’s stance) dispassionately advocates the antiseptic
application of res adjudicata.

Petitioners implore this matter to be exhumed, so that they
may have a resolution of this mattter on the merits.

18

COUNSEL OF RECORD:

HYLTON B. DUPREE, JR.

MARK A. JOHNSON

la
APPENDIX A
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

1:87-CV-2258-RHH

ROWLAND LAMAR ALLEN, et al.

Plaintiffs,
v.
UNITED STATES OF AMERICA
Defendant.
FILED
AUG 17 1988
ORDER

This matter is currently before the court on defendant’s
motion to dismiss the complaint. In their complaint plaintiffs
seek, pursuant to Rule 60(b), Fed. R. Civ. P., to have this court
vacate several judgments of default entered by this court in
forfeiture actions brought against the plaintiff properties in
1984. By order dated May 23, 1988, this court initially consid-
ered and partially granted the defendant’s motion to dismiss
plaintiffs’ complaint. The court deferred ruling on the remain-
der of defendant’s motion to dismiss and directed the defendant
to file a reply brief responding to arguments raised by the
plaintiffs in their response to the motion to dismiss.

On June 7, 1988, defendant filed a reply brief in accor-
dance with this court’s directive. Although the court had not
directed plaintiffs to file any supplemental brief, the plaintiffs
also filed a brief on June 7, 1988 addressing certain issues
raised by the court’s May 28, 1988 order. After receiving the

2a

defendant’s reply brief, plaintiffs filed a motion for leave to file
another supplemental brief to respond to defendant’s reply. A
second supplemental brief, however, is unwarranted. In their
response to defendant’s motion to dismiss, plaintiffs raised two
issues which defendant had not addressed in its motion to
dismiss.'! The court therefore deferred ruling on the majority of
defendant’s motion to dismiss pending the filing of a reply brief
by defendant. Although plaintiffs appear to argue that defen-
dant has raised new issues or allegations, their argument is
without merit. Defendant’s brief merely addresses issues
raised by plaintiffs in their brief in response to defendant’s
motion to dismiss. Plaintiffs had the opportunity to and indeed
did raise the dispositive issues before this court in their re-
sponse brief. Thus, the court DENIES their motion to file a
second supplemental brief.

In opposing defendant’s motion to dismiss the com-
plaint, plaintiffs argued that the forfeiture judgments were void
ab initio and that the Eleventh Circuit opinion in United States
vu. $38,000.00 in U.S. Currency, 816 F. 1538 (11th Cir. 1987)
warrants the setting aside of the forfeiture judgments. In its
reply brief, defendant contends that the forfeiture judgments
should be given res judicata effect and that the holding in
$38,000.00 does not warrant vacating the judgments. The court
agrees with defendant and therefore GRANTS its motion to
dismiss the complaint.

As this court noted in its May 23, 1988 order, the basis
for plaintiffs complaint seeking to vacate the forfeiture judg-

1Plaintiffs argued in their response to defendant's motion to dismiss that
the forfeiture judgments entered againt the plaintiff properties are void and
should be vacated in light of a subsequently decided case, United States v.
$38,000.00 in U.S. Currency, 816 F. 2d 1538 (11th Cir. 1987). This court
directed the defendant to file a reply brief to address the issues of whether the
default judgments should be vacated because void and the propriety of retro-
actively applying the reasoning of the court in $38,000.00.

3a

ments is that this court, in entering the judgments, acted in a
manner inconsistent with due process of law. To support their
argument that the forfeiture judgments were entered in viola-
tion of due process of law, the plaintiffs referred to the $38,000.00
decision in which the Eleventh Circuit held that forfeiture pro-
ceedings similar to those of the underlying case did not comply
with 21 U.S.C. § 881 or Supplemental Rule C(3). Plaintiffs
argued that because the forfeiture proceeding, like those in
$38,000.00, did not conform to the law or certain procedural
rules, the forfeiture judgments are void and the doctrine of res
judicata does not apply to the instant action.

As a preliminary matter, the court notes that “[i]n the
interest of finality, the concept of void judgments is narrowly
construed.” Rubin v. Johns, 109 F.R.D. 174, 178 (D.V.I. 1986).
Generally, a final judgment will not be set aside and the
doctrine of res judicata bars the litigation of claims that either
were or could have been litigated in the original action. Indeed,
in civil actions, unlike criminal cases, a judgment “cannot be
collaterally attacked on the basis of subsequent judicial pro-
nouncements.” Hardison v. Alexander, 655 F. 2d 1281, 1288
(D.C. Cir. 1981). The Eleventh Circuit has noted that in this
circuit, “changes in the law after a final judgment do not prevent
the application of res judicata and collateral estoppel, even
though the grounds on which the decision was based are
subsequently overruled.” Precision Air Parts, Inc. v. Avco Corp.,
736 F. 2d 1499, 1503 (11th Cir. 1984), cert. denied, 469 U.S. 1191
(1985). Generally, a retroactive judicial decision may be raised
only by litigants with suits pending or not yet brought and may
not be raised by unsuccessful civil litigants to overturn a final
judgment. Hardison, supra, 655 F. 2d at 1288.

On very rare occasions, a subsequent judicial pronounce-
ment might warrant a court overriding the res judicata bar. Res
judicata may not be applied against a party who did not have a
full and fair opportunity to litigate an issue in a previous suit.
Precision Air Parts, supra, 736 F. 2d at 1504. And an interven-

4a

ing change in the law may nullify the res judicata effect of a
judgment in the rare event that the subsequent judicial decision
involves “momentos [sic] changes in important, fundamental
constitutional rights” such as those involving school desegrega-
tion and re-apportionment plans. Id.

In an action similar to the instant one, where an unsuc-
cessful litigant contended that state court judgments were
erroneously entered in violation of due process of law, the Tenth
Circuit Court of Appeals applied the res judicata bar and
refused to retroactively apply a subsequently decided Supreme
Court decision to void the judgment. Douglas-Guardian Ware-
house Corp. v. Posey, 486 F. 2d 739 (10th Cir. 1973). The court
in Douglas-Guardian found that the party challenging the
validity of the judgment had the opportunity but failed to raise
the constitutionality argument in the earlier proceedings and
that retroactive application of the later-decided Supreme Court
decision would “work an injustice and a hardship” on the other
parties who acquired vested rights in the judgments. Id. at 742-
743.

In the instant action, as in Douglas-Guardian, the plain-
tiffs had ample opportunity to raise the issue of lack of proce-
dural due process in the forfeiture proceedings. Plaintiffs’
allegations that they did not receive proper notice, that the
arrest warrant did not accompany the complaint and that they
were not notified that they had ten days from execution of
process to file a claim could have been raised either before this
court or on appeal. In this court the plaintiffs filed: answers to
the forfeiture complaints, a brief in opposition to the govern-
ment’s motion to strike their answers, a motion to amend their
answers, and a motion for reconsideration of this court’s order
striking the answers. In each instance the plaintiffs could have
raised their procedural due process arguments. In addition, the
plaintiffs appealed this court's entry of default judgments
against the plaintiff properties and, at that time, had every op-
portunity to litigate their constitutional claims.

5a

Plaintiffs were not deprived, either by this court or the
Court of Appeals, of a full and fair opportunity to litigate the
procedural due process issue it now presents. The $38,000.00
decision which plaintiffs seek to have this court apply retroac-
tively to void the judgment, did not involve “momentous changes
in important, fundamental constitutional rights.” The Elev-
enth Circuit in $38,000.00 merely applied and strictly con-
strued the language of 18 U.S.C. § 221 and the Supplemental
Rules for Certain Admiralty and Maritime Claims. The Elev-
enth Circuit decision does not constitute the kind ofintervening
change in the law which nullifies the res judicata effect of the
prior forfeiture judgments. Finally, since November 1985,
when the Eleventh Circuit affirmed this court’s entry of default
judgments in the forfeiture actions, the government has sold
most, if not all, of the plaintiff property. If this court were to
vacate the forfeiture judgments at this juncture, the innocent
third-party purchasers would be -subjected to injustice and
hardship. For all these reasons, the court GRANTS defendant’s
motion in full and hereby DISMISSES plaintiffs’ complaint and
TERMINATES this action.

So ORDERED this ]7 day of August, 1988.

ROBERT H, HALL
ROBERT H. HALL
UNITED STATES DISTRICT JUDGE

6a
APPENDIX B

In the United States Court of Appeals
for the Eleventh Circuit

No. 88-8801

ROWLAND LAMAR ALLEN,
Plaintiff-Appellant,

MID-TOWN CONTRACTORS, INC., et al.,
Plaintiff,

v.
UNITED STATES OF AMERICA
Defendant-Appellee

APPEAL from the United States District Court for the Northern
District of Georgia
(June 26, 1989)

Before CLARK and EDMONDSON, Circuit Judges, and
TUTTLE, Senior Circuit Judge.

PER CURIAM: AFFIRMED. See 11th Cir. R. 36-1.

JUDGMENT ENTERED FOR
THE COURT
DATED JUN 26 1989 Miguel J. Cortez, Clerk

David Maland

David Maland, Deputy Clerk
ISSUED AS A MANDATE
September 7, 1989
Costs: Against; Plaintiff-Appellant

7a
APPENDIX C

In the United States Court of Appeals
for the Eleventh Circuit

No. 88-8801

ROWLAND LAMAR ALLEN,
Plaintiff-Appellant,

MID-TOWN CONTRACTORS, INC., et al.,
Plaintiffs,
Vv.
UNITED STATES OF AMERICA,
Defendant-Appellee.

APPEAL from the United States District Court for the Northern
District of Georgia

ON PETITION(S) FOR REHEARING AND SUGGESTION(S)
OF REHEARING IN BANC

(Opinion June 26, 11 Cir., 1989, ___ F.2d__).

Before CLARK and EDMONDSON, Circuit Judges, and
TUTTLE, Senior Circuit Judge.

PER CURIAM

( ) The Petition(s) for Rehearing are DENIED and no
member of this panel nor other Judge in regular active service
on the Court having requested that the Court be polled on
rehearing in banc (Rule 35, Federal Rules of Appellate Proce-
dure; Eleventh Circuit Rule 35-5), the Suggestion‘s) of Rehear-

8a
ing In Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the Court
having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular
active service not having voted in favor of it (Rule 35, Federal
Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the
Suggestion(s) of Rehearing In Banc are also DENIED.

( ) Amember of the Court in active service having requested
a poll on the reconsideration of this cause in banc, and a
majority of the judges in active service not having voted in favor
of it, Rehearing In Banc is DENIED. —
ENTERED FOR THE COURT:

Thomas A. Clark
Thomas A. Clark. United States Circuit Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0843%3A1. Public record. Not legal advice.