946 F.2d 422
UNITED STATES of America, Plaintiff-Appellant,
v.
PROPLAST II or Proplast HA, etc., Defendant-Appellee.
In re UNITED STATES of America, Petitioner.
Nos. 91-2263, 91-2471.
United States Court of Appeals,
Fifth Circuit.
Nov. 7, 1991.
Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Samuel G. Longoria, Asst. U.S. Atty., Houston, Tex., Eric M. Blumberg, Assoc. Chief Counsel for Enforcement, Office of Gen. Counsel, Rockville, Md., John S. Koppel, Douglas N. Letter, Atty., Dept. of Justice, Civ. Div., Appellate Sec., Washington, D.C., for plaintiff-appellant.
Linda Marshall, Tom Alexander, Alexander & McEvily, Houston, Tex., for Hovamed, Inc. and Oral Surgery Marketing, Inc.
Appeal from the United States District Court for the Southern District of Texas.
Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, and JONES, Circuit Judge, and PARKER*, District Judge.
PER CURIAM:
The United States applied to the District Court for the Southern District of Texas for a warrant for arrest, verified on oath and conforming to the other provisions of the procedural rules governing actions in admiralty, seeking seizure of property for an alleged federal statutory violation. On the 7th day of March 1991, a judge of that court issued a warrant for the seizure of the described property. In an order filed on the 13th day of March, another judge of the same court rescinded the warrant. The judge stated:
I do want it noted that by making this ruling the Court makes no finding whatsoever on whether or not the products in question are quality and/or up to any standards whatsoever and are causing any problems to the public.
I'm making it strictly on the pleadings filed in this case and the arguments of counsel.
On motion of the United States, this court stayed the district court's orders rescinding the seizure and ordering return of the property. This court has jurisdiction to review these actions of the district court under 28 U.S.C. § 1292(a)(1). Accordingly, we placed the matter on the emergency hearing calendar.
Claimant contends that the seizure was based on inaccurate factual information and that it is entitled to a release of the property improperly seized. The United States opposes this contention. These claims cannot be summarily resolved by the district court through a process of weighing conflicting pleadings or affidavits at this preliminary stage of the proceeding or a process of evaluating the relative equities of the contending parties created by the seizure procedure. When a complaint which complies on its face with the provisions of the admiralty rules seeks forfeiture of articles of property alleged to be in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 334(b), the United States is entitled to secure a warrant for seizure and to maintain its seizure of the property described until a seizing court hears the matter on the merits of the conflicting claims.
While Supplemental Admiralty and Maritime Claims Rule E(4)(f) does not literally apply to this action, an expedited resolution is required by the facts presented. To balance a claimant's constitutional right to due process in a post-deprivation procedure, see, e.g., Caine v. Hardy, 943 F.2d 1406 (5 Cir.1991) (en banc), while at the same time accommodating the public health protection policy embodied in the Federal Food, Drug, and Cosmetic Act, a hearing on the merits should be scheduled at the promptest date practicable considering the court's emergency calendar and the ability of the parties to prepare and present the controversy to the court.
The orders of the district court filed March 13 and 18, 1991, are vacated and the cause is remanded for further proceedings consistent with the opinion.
The motion of the United States for a writ of mandamus is DENIED as moot.
VACATED and REMANDED.
Chief District Judge of the Eastern District of Texas, sitting by designation