Urban Industries, Inc. of Kentucky v. Thevis

• Decision Date: 15 March 1982
• Docket Number: No. 80-7715,80-7715
• Citation: 670 F.2d 981
• Parties: 82-1 USTC P 9268 URBAN INDUSTRIES, INC. OF KENTUCKY, Etc., Et Al., Plaintiffs-Appellants, v. Joan THEVIS, Intervenor-Appellant, v. Michael G. THEVIS, Et Al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 981

670 F.2d 981

82-1 USTC P 9268

URBAN INDUSTRIES, INC. OF KENTUCKY, Etc., Et Al., Plaintiffs-Appellants, v. Joan THEVIS, Intervenor-Appellant, v. Michael G. THEVIS, Et Al., Defendants-Appellees.

No. 80-7715.

United States Court of Appeals Eleventh Circuit.

March 15, 1982.

Levine & D'Alessio, Mortin P. Levine, Burgess W. Stone, Atlanta, Ga., for plaintiffs-appellants.

Powell, Goldstein, Frazer & Murphy, Robert M. Travis, Atlanta, Ga., and Ogden, Robertson & Marshall, Wesley P. Adams, Louisville, Ky., for Urban Industries, Inc., et al.

William L. Harper, U. S. Atty., Barbara Harris, Asst. U. S. Atty., Atlanta, Ga., Michael L. Paup, Chief, App. Section, Tax Div., U. S. Dept. of Justice, M. Carr Ferguson, Asst. Atty. Gen., Washington, D. C., for U. S. A.

Brown, Byrd, Blakley & Massey, R. Wayne Byrd, Greenville, S. C., and Cook & Palmour, Summerville, Ga., Joan I. Oppenheimer, Tax Div., U. S. Dept. of Justice, Washington, D. C., for Michael Thevis.

Appeals from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, TJOFLAT and VANCE, Circuit Judges.

VANCE, Circuit Judge:

This appeal involves the relative priority of claims against Michael G. Thevis, a notorious dealer in pornographic materials. ¹ We affirm the district court's decision granting priority to the United States.

Prior to December 1974 Thevis lived in Atlanta, Georgia and conducted his extensive business operations from there. In December 1974 he began serving a prison sentence in a federal institution at New Albany, Indiana from which he escaped on April 28, 1978. He remained at large until November 9, 1978 when he was captured by the Federal Bureau of Investigation (F.B.I.) near Hartford, Connecticut. At the time of his capture Thevis had in his possession $411,400 in cash and jewelry which had an estimated value of approximately $1,000,000.

On May 1 plaintiffs obtained a judgment against Thevis in the United States District Court for the Western District of Kentucky in the amount of $681,655.00 plus interest. ² Thevis appealed the judgment but did not obtain a stay of execution or post a supersedeas bond. On May 3, 1978, while Thevis' appeal was pending in the United States Court of Appeals for the Sixth Circuit, plaintiffs purportedly registered the Kentucky judgment in the Northern District of Georgia pursuant to 28 U.S.C. § 1963 in the hope of levying execution upon any of Thevis' property in that district.

On August 9, 1978 the Internal Revenue Service (I.R.S.) assessed Thevis and Intervenor Velda Joan Thevis, his former wife, for unpaid income taxes, penalties, and interest for the years 1972 through 1975 in the total amount of $5,004,100.96. On August 10, 1978 the I.R.S. filed notices of tax liens for that amount in the clerk's offices of Fulton County, Cobb County, and DeKalb County, Georgia.

The F.B.I. seized the cash and jewelry that Thevis possessed when he was captured. Plaintiffs claimed the property and on November 13, 1978 caused a sheriff's execution to be served on the F.B.I. in Connecticut. On November 14, 1978 the I.R.S. also served the F.B.I. with a notice of levy. The F.B.I. did not turn over the fund to plaintiffs, but transferred it instead to Atlanta, Georgia. On October 26, 1979 plaintiffs filed the present action, seeking a declaratory judgment to the effect that they were entitled to the disputed fund of cash and jewelry. ³ On November 5, 1979 Thevis' former wife, Velda Joan Thevis, intervened in the lawsuit, claiming that the jewelry in question was not properly a part of the disputed fund because she owned it and had only lent it to Thevis.

After trial on December 17 and 18, 1979 the district court found (1) that plaintiffs' registration of the Kentucky judgment in the Northern District of Georgia was invalid because the judgment registered was not then final by appeal; (2) that the I.R.S. perfected its lien on August 10, 1978 by filing notice thereof in the county of Thevis' residence; and (3) that Mrs. Thevis had given the jewelry to Thevis and it was thus properly a part of the disputed fund. On the basis of such holdings the court held that the tax lien was prior to the judgment lien and entered judgment awarding the cash and the proceeds from sale of the jewelry to the I.R.S. Both plaintiffs and Mrs. Thevis appeal, challenging the correctness of the district court's holdings.

Resolution of the conflicting claims of plaintiffs and the I.R.S. is controlled by the traditional "first in time, first in right" principle. See United States v. City of New Britain, 347 U.S. 81, 85, 74 S.Ct. 367, 370, 98 L.Ed. 520 (1954); Foshee v. Lloyds, New York, 643 F.2d 1162, 1165 (5th Cir. 1981). The I.R.S. argues that plaintiffs' registration of the Kentucky judgment on May 3, 1978 was invalid. Plaintiffs in turn challenge the validity of the filing of tax lien notice by the I.R.S. Both issues were resolved in favor of the I.R.S. by the district court. ⁴ These rulings pose the first questions for our consideration. Mrs. Thevis' claim of ownership of the jewelry presents an entirely separate issue.

(1)

Plaintiffs registered their Kentucky district court judgment in Georgia pursuant to the provisions of 28 U.S.C. § 1963:

A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

(Emphasis added.) The I.R.S. argues that the registration was ineffective because plaintiffs' judgment against Thevis was merely pending on appeal without stay or supersedeas and had not become final by appeal or expiration of time for appeal.

Whether a judgment in such a posture may be registered under this particular statute has been squarely confronted with conflicting results in two prior district court opinions, Abegglen v. Burnham, 94 F.Supp. 484 (D.Utah 1950) ⁵ and Dorey v. Dorey, 77 F.R.D. 721 (N.D.Ala.1978). Abegglen involved an effort to strike the registration of a judgment obtained in the district court in Idaho and to quash execution issued on the basis of such registration. The Idaho judgment was on appeal without supersedeas. The court held for the judgment debtor stating,

The phrase final by appeal should be given its ordinary, usual, and natural interpretation. The case is still pending until it is disposed of by appeal and the judgment, in any ordinary sense, cannot be regarded as final until that time.

94 F.Supp. at 486. Conversely, the court in Dorey held that section 1963 permitted the registration of judgments appealed without stay or supersedeas. The court construed section 1963 in pari materia with rule 62 of the Federal Rules of Civil Procedure and concluded that Congress assumed for purposes of section 1963 that appellants would seek a stay or post a supersedeas bond. 77 F.R.D. at 724-25. Thus, unless a judgment was stayed on appeal it was essentially final and could be registered and enforced under section 1963. Further, the court expressed doubts about the constitutionality of section 1963 if construed to prevent the registration of these judgments because such a construction would impermissibly discriminate against out-of-district judgment creditors. Id. at 725.

We agree with the Abegglen decision. As we have said elsewhere, our "starting point in interpreting statutes must be the language of the statutes themselves." United States v. Anderez, 661 F.2d 404, 406 (5th Cir. 1981). ⁶ In this case, the language of section 1963 is unambiguous in requiring that a judgment be final before it may be registered in another judicial district. The statute does not say enforceable judgments, and we see no compelling reason to stretch the plain meaning of the statute by including judgments that may be collectible because no stay was sought or supersedeas bond posted. ⁷

The concerns about legislative intent and the constitutionality of section 1963 that led the Dorey court to its holding overlook the purpose of the registration statute. It was enacted in 1948 to provide a prompt, efficient, and inexpensive means of enforcing final federal judgments. It is, however, an alternative method of enforcement:

Section 1963 provides a cumulative remedy. It does not prevent a judgment creditor from bringing an independent action on his judgment. And it may be advantageous for him to do this where the original judgment is not registerable due to the fact that it has not become final by appeal or expiration of the time for appeal.

7B J. Moore, Moore's Federal Practice § 1963 (2d ed. 1981). See Meridian Investing & Development Corp. v. Suncoast Highland Corp., 628 F.2d 370, 373 (5th Cir. 1980); Slade v. Dickinson, 82 F.Supp. 416, 418 (W.D.Mich.1949). A judgment creditor is free to pursue an independent action to collect his judgment in a different jurisdiction. That independent action option is available even during the pendency of an appeal if the judgment is not superseded or stayed. The new, streamlined procedure provided by section 1963 is an added option that is meant to be available only after the judgment becomes final, in large part because it is a summary procedure which does not accord the judgment debtor the same right to advance defensive matter as does an independent action. The constitutional objections to this construction of section 1963 are no stronger than those based on legislative intent. The requirement of finality is clearly reasonable and rationally related to the purpose of making nonappealable judgments easily enforceable. Cf. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (rational basis standard applies to equal protection challenges to economic legislation)....