U.S. v. One (1) 1979 Cadillac Coupe De Ville VIN 6D4799266999

• Decision Date: 19 November 1987
• Docket Number: No. 87-1212,87-1212
• Citation: 833 F.2d 994
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) 1979 CADILLAC COUPE DE VILLE VIN 6D4799266999 Together With All Items Contained Therein, Defendant, and David Wayne Baker, Claimant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 994

833 F.2d 994

UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) 1979 CADILLAC COUPE DE VILLE VIN 6D4799266999

Together With All Items Contained Therein, Defendant,

and

David Wayne Baker, Claimant-Appellee.

No. 87-1212.

United States Court of Appeals, Federal Circuit.

Nov. 19, 1987.

John F. Daly, Dept. of Justice, of Washington, D.C., argued for plaintiff-appellant. With him on the brief were Richard K. Willard, Asst. Atty. Gen., Louis G. DeFalaise, U.S. Atty., and Douglas N. Letter.

David Wayne Baker, Lexington, Ky., submitted pro se.

Before FRIEDMAN, Circuit Judge, MILLER, Senior Circuit Judge, and NIES, Circuit Judge.

FRIEDMAN, Circuit Judge.

In this case, here on appeal from the United States District Court for the Eastern District of Kentucky, the government seized a motor vehicle that allegedly was used to facilitate a narcotics transaction. After the government lost a proceeding to forfeit the vehicle, the district court ordered the government not only to return the vehicle, but also to pay the owner of the vehicle the amount by which its value had decreased while it was in government custody. The government's appeal challenges this award of damages. We reverse.

I

In June 1984, government agents arrested David Wayne Baker for conspiracy to distribute cocaine and seized his 1979 Cadillac which they contended had been used to facilitate the drug violation. Baker was indicted for distribution of cocaine and conspiracy to distribute. These charges were dismissed as part of a plea bargain agreement under which Baker pleaded guilty to charges stemming from an earlier incident of cocaine distribution. He was sentenced to 15 years' imprisonment. See Baker v. United States, 781 F.2d 85, 87 (6th Cir.) Following resolution of the criminal charges, the United States in August 1985 instituted an in rem action pursuant to 21 U.S.C. Sec. 881(a)(4), seeking forfeiture of the vehicle. That statute provides for forfeiture of "[a]ll vehicles, ... which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [illegal drugs]...." The government contended that Baker had used the vehicle to facilitate the distribution of cocaine on the day of his arrest.

cert. denied, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986).

Under the statute, the government need only show probable cause to institute a forfeiture action. This showing then shifts the burden to the claimant to prove, by a preponderance of the evidence, that the property is not subject to forfeiture. See United States v. Fifty Thousand Dollars, 757 F.2d 103, 105 (6th Cir.1985); United States v. $2,500 in United States Currency, 689 F.2d 10, 12 (2d Cir.1982), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984).

The district court found that "the proof in regard to the involvement of his Cadillac, ... minimally met the standard of probable cause defined as 'a reasonable ground for a belief of guilt, supported by less than prima facie proof but more than mere suspicion.' " United States v. One (1) 1979 Cadillac Coupe, No. 85-352, slip op. at 3 (E.D.Ky. Dec. 29, 1986) (quoting United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir.1983)).

The forfeiture case was then tried to a jury, which returned a verdict for Baker because it found that the vehicle "was not used to facilitate a drug transaction...." In that situation, 28 U.S.C. Sec. 2465 provides that "[u]pon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant...."

In a subsequent hearing, the court ordered the government to return the vehicle to Baker and to pay him $4,050, which represented the decrease in the value of the car from $7,500 at the time of seizure to the $3,450 National Automobile Dealers Association's (blue book) value at the date of the court's ruling (December 29, 1986). The court ruled "pursuant to United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882 ( [6th Cir.] 1973), that this is a deprivation of property right issue." The court stated that Baker "was deprived of the use of his automobile ... [and] [t]he government now intends to return the car with a simple 'Sorry' and no recognition that for two and one-half years the property, while in the government's hands, decayed in value.... The government seized property worth $7500 and that is what is to be returned--or its equivalent value." One (1) 1979 Cadillac Coupe, slip op. at 3-4.

II

A. The district court did not specify the ground upon which it had jurisdiction to require the government to pay Baker the amount by which the vehicle had decreased in value while in government custody. The court's citation to and reliance on United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882 (6th Cir.1973), suggests that the court was relying upon the Little Tucker Act, 28 U.S.C. Sec. 1346(a)(2) (1982), since in One 1965 Chevrolet the court stated that "the Tucker Act, 28 U.S.C. Sec. 1346(a)(2) ... provides the jurisdictional basis for the present claims against the Government for the value of the depreciation of the automobiles." 475 F.2d at 886 (footnote omitted). Indeed, that statute, which gives the district courts concurrent jurisdiction with the United States Claims Court over claims against the United States not exceeding $10,000 "founded either upon the Constitution, or any Act of Congress ...," is the only possible basis upon which the jurisdiction of the district court could have rested.

Under 28 U.S.C. Sec. 1295(a)(2) (1982), we have exclusive jurisdiction over an appeal from a final decision of a district court where "the jurisdiction of that court was based, in whole or in part, on section B. The Tucker Act "does not create any substantive right enforceable against the United States for money damages." United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) quoting United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). The Supreme Court further stated that

1346[ (a)(2) ] of this title ." We have jurisdiction over this appeal under section 1295(a)(2).

[a] substantive right must be found in some other source of law, such as "the Constitution, or any Act of Congress, or any regulation of an executive department" ... and the claimant must demonstrate that the source of substantive law he relies upon "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained."

463 U.S. at 216-17, 103 S.Ct. at 2967-68 (quoting Testan, 424 U.S. at 398-400, 96 S.Ct. at 953-54 quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967)).

The district court here apparently concluded that 28 U.S.C. Sec. 2465 authorized it to require the government to pay Baker the amount the value of the vehicle had declined while it was in government custody. The court's statements that "this is a deprivation of property right issue" and that Baker was "deprived of the use of his automobile" further suggest that the court may have viewed the government's impoundment of the car as a temporary taking, for which the court awarded just compensation based upon the reduction in the value of the car during the period of the taking. Prior to discussing these two issues, however, we consider a threshold question: whether, in deciding those issues, we apply the law of this court or the law of the Sixth Circuit, the court to which appeal from the district court generally lies.

C. Although 28 U.S.C. Sec. 1295 gives this court "exclusive jurisdiction" over appeals in the various categories of cases there specified, in exercising that jurisdiction we have not always applied the law of this circuit. Instead, we have recognized that the district courts should "follow the guidance of their particular circuits in all but the substantive law fields assigned exclusively to this court...." Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1439, 223 USPQ 1074, 1087 (Fed.Cir.1984). We therefore have applied the law of the appropriate regional circuit in deciding such issues as the propriety of a preliminary injunction in a copyright infringement case (Atari ), trademark infringement and validity (Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, 223 USPQ 982 (Fed.Cir.1984)), violation of the antitrust laws (American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 220 USPQ 763 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984)), disqualification of attorneys (Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 223 USPQ 465 (Fed.Cir.1984)), and various procedural rulings (see Truswal Systems Corp. v. Hydro-Air Eng'g, 813 F.2d 1207, 2 USPQ2d 1034 (Fed.Cir.1987)).

As the Supreme Court recently noted, "[a] motivating concern of Congress in creating the Federal Circuit was the 'special need for nationwide uniformity' in certain areas of the law." United States v. Hohri, --- U.S. ----, ----, 107 S.Ct. 2246, 2251, 96 L.Ed.2d 51 (1987). The Court also referred to "the evident congressional desire for uniform adjudication of Little Tucker Act claims...." Id. In the light of this congressional intent to insure uniformity in the adjudication of Tucker Act cases, reflected in the grant of exclusive jurisdiction to this court to review those cases, we conclude that we should apply the law of this circuit and not that of the regional circuits, in deciding the merits of those cases.

In appeals in Tucker Act cases coming from the United States Claims Court, over which that court has exclusive jurisdiction of claims for more than $10,000 (28 U.S.C. Sec. 1491), we apply the law of this circuit. See Bray v. United States, 785 F.2d 989 Ou...