United States v. Bowman

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 02-13050 ELEVENTH CIRCUIT
AUGUST 13, 2003
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-0134 CV-BU-E

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARVEY BOWMAN,
BOBBIE BOWMAN,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(August 13, 2003)

Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:
 INTRODUCTION

The Platinum Club is an adult entertainment establishment that occupies real

property owned by Harvey J. and Bobbie J. Bowman. The Club is allegedly used as

a front for prostitution and money laundering. After the Government filed and served

an in rem civil action seeking forfeiture of the property, the Bowmans allegedly

continued to operate the Club for illegal purposes. The district court granted an ex

parte application for a warrant to seize the Club prior to trial. Following the seizure,

the Bowmans received a post-seizure adversarial hearing, in accordance with 18

U.S.C. §985(e), at which they contested the basis for the ex parte seizure. Following

the hearing, the district court entered an order upholding the seizure. The Bowmans

appeal, challenging this interlocutory order. We dismiss the appeal because we

conclude that we lack jurisdiction to consider it.

PROCEDURAL HISTORY

The Bowmans have owned and operated the Platinum Club in Anniston,

Alabama since approximately 1993. For several years, the IRS, FBI and the Calhoun

County Sheriff’s Office received reports from private citizens and other law

enforcement agencies that the Bowmans employed exotic dancers who also engaged

in various sexual activities with the Club’s patrons for money. These activities

allegedly took place both on and off the Club’s premises.

2
 In May 2001, following an undercover investigation by local law enforcement

agencies, the Sheriff's office executed a search warrant upon the Platinum Club,

seizing cash and business records. Shortly thereafter, the United States Government

filed a civil forfeiture action against the Club. The Government’s complaint alleged

that the Bowmans, together with their employees and other individuals, used the Club

for promotion of prostitution and money laundering in violation of state and federal

laws, subjecting the property to forfeiture under 18 U.S.C. § 981(a)(1)(A).

The Government served a copy of the complaint and notice of the forfeiture

action on the Bowmans; the Government also posted a “Notice of Complaint for

Forfeiture against Real Property” at the Club. Additionally, the Government filed a

lis pendens against the real property. The Bowmans responded to the complaint, but

no other action was taken at that time and the Club remained open for business.

The investigation into the illegal activities at the Club continued after the civil

forfeiture action was filed, allegedly revealing that the prostitution and money

laundering had not ceased. Hence, in January 2002, the Government made an ex

parte application to the district court under 18 U.S.C. § 985(d)(1)(A)1 to seize the real

1
18 U.S.C. § 985(d)(1) states:
(d)(1) Real property may be seized prior to the entry of an order of forfeiture if –
(A) the Government notifies the court that it intends to seize the property before trial;
and
(B) the court –
(i) issues a notice of application for warrant, causes the notice to be served

3
property pretrial due to the its continued illegal use. In support of its seizure

application, the Government offered only the affidavit of FBI Special Agent Joseph

Perkins. Special Agent Perkins indicated that a cooperating witness, who was an

entertainer at the Club (both before and after the search and seizure by state officials),

confirmed the price list for prostitution services performed by employees of the club.

According to Special Agent Perkins, the cooperating witness stated that prostitution

at the Club continued as usual after the club was searched by state authorities.

Special Agent Perkins also located a customer of the Club who admitted that he

exchanged sex with an employee of the Club for money after the civil forfeiture

action was filed.

In its ex parte warrant application, the Government asserted that the continued

unlawful use of the Platinum Club constituted an exigency that justified the issuance

of a seizure warrant under § 985(d)(1)(B)(ii) without providing the Bowmans prior

notice and an opportunity to be heard. (R.39 at ¶ 3.) To comply with the mandate of

on the property owner and posted on the property, and conducts a hearing in
which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the
forfeiture and that there are exigent circumstances that permit the
Government to seize the property without prior notice and an opportunity for
the property owner to be heard.
18 U.S.C. § 985(d)(1).

4
§ 985(d)(2),2 which requires the Government to establish that means less restrictive

than seizure would not suffice to protect the Government’s interest in the continued

unlawful use of the property, the Government stated that it had previously filed a lis

pendens and that "less restrictive measures, such as a bond or restraining order, would

be inadequate in this case to protect the Government's interests of preventing the

continued unlawful use of the defendant real property." (R.39 at ¶4.)

The district court granted the Government’s request for an ex parte seizure

warrant.3 In the warrant that issued, the district court found that the Government had

established “probable cause for forfeiture of the defendant properties to the United

States of America, pursuant to 18 U.S.C. § 981(a)(1)(A), that exigent circumstances

presently exist that justify the immediate seizure of said properties without pre-

seizure notice or hearing, and that less restrictive means are insufficient to protect the

Government’s interests therein[.]” (R.43 at 2.) Thereafter, federal marshals seized the

Club and shut down its business operations. The Club remains closed for business.

2
Section 985(d)(2) states:
For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the
Government shall show that less restrictive measures such as a lis pendens, restraining
order, or bond would not suffice to protect the Government’s interests in preventing
the sale, destruction, or continued unlawful use of the real property.
18 U.S.C. § 985(d)(2).
3
The district court also granted the Government’s application to appoint a custodian to
manage and to preserve the assets of the Platinum Club. The order appointing a custodian is not an
issue in this appeal.

5
 In May 2002, the district court conducted a post-seizure adversarial hearing,

pursuant to 18 U.S.C. § 985(e),4 to provide the Bowmans an opportunity to contest

the basis for the ex parte seizure. The Bowmans argued for the return of the Platinum

Club, contending that the Government had failed to establish by a preponderance of

the evidence (using admissible, non-hearsay evidence) that less restrictive means

would not suffice to protect the Government’s interest in preventing the Club’s

involvement in criminal activity.

In a memorandum of law submitted to the district court as part of the post-

seizure hearing, the Government noted that a lis pendens was filed against the

property; then, the Government simply declared that “neither the lis pendens, nor a

restraining order, nor a bond would have effectively prevented the Bowmans from

their deliberate continued use of the Platinum Club for illegal purposes.” (R.59 at 5.)

The Government also summarized the affidavit of Special Agent Perkins, which had

been submitted with the ex parte application for the warrant, the contents of which

showed that the Platinum Club continued to front illegal activities despite a pending

forfeiture action.

4
Section 985(e) states:
If the court authorizes a seizure of real property under subsection (d)(1)(B)(ii), it
shall conduct a prompt post-seizure hearing during which the property owner shall
have an opportunity to contest the basis of the seizure.
18 U.S.C. § 985(e).

6
 The district court concluded that when reviewing the grant of an ex parte

warrant at a post-seizure hearing, the statute requires only that the Government

establish probable cause to believe that the real property is subject to forfeiture in

order to sustain the seizure. The district court concluded that hearsay evidence can

suffice to meet this burden of proof. Ultimately, the court concluded that exigent

circumstances justified the ex parte seizure. Furthermore, the court determined that

even assuming arguendo that there were no exigent circumstances, the Bowmans

were not entitled to the return of their real property because the Government had

established probable cause to believe the property was subject to forfeiture.

The Bowmans timely appeal the district court’s decision.

ISSUE ON APPEAL

Prior to addressing the merits, it is our duty to determine whether we have

jurisdiction over an appeal. As the order in question is interlocutory, we have

jurisdiction only if the facts of this case fit the injunction analogy theory, which treats

an interlocutory order as the functional equivalent of an injunction under 28 U.S.C.

§ 1292(a)(1), or the collateral order doctrine. Both of these jurisdictional theories

require that the order at issue be effectively unreviewable on appeal after final

judgment. Because we conclude that the district court’s order is effectively

7
reviewable after final judgment, we dismiss the Bowmans’ appeal for lack of

jurisdiction.

CONTENTIONS OF THE PARTIES

The Bowmans make three overlapping arguments. First, the Bowmans argue

that the Government failed to establish the existence of exigent circumstances

because the Government failed to establish that means less restrictive than seizure

could not prevent continued unlawful use of the property. In conjunction with this

argument, the Bowmans contend that the Government must establish the existence

of exigent circumstances by a preponderance of the evidence; thus, they argue, the

Government cannot use hearsay evidence to establish the existence of exigent

circumstances.

As to the merits, the Government contends that it properly established the

existence of exigent circumstances and probable cause, thereby justifying the ex parte

seizure. With reference to the jurisdictional issue, the Government contends that we

lack jurisdiction to hear this appeal.

DISCUSSION

To decide the jurisdictional question requires several steps. First, we lay the

foundation for a seizure analysis with a brief discussion of the Supreme Court’s

decision in United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.

8
Ct. 492 (1993), the case upon which § 985 is modeled. Next, we discuss the remedy

for an illegal seizure where the Government fails to establish the existence of exigent

circumstances. Then, we turn to the issue of whether the Government continues to

be justified in its seizure of the property if it fails to establish exigent circumstances

at the post-seizure adversarial hearing, but succeeds in establishing probable cause

to believe the property is subject to forfeiture, i.e. connected to crime. Once we

determine that the Government should be entitled to retain possession of the property

after a post-seizure adversarial hearing where the Government is able to establish

probable cause to believe the property is connected to crime, despite a failure to

establish exigent circumstances, we then turn to the question of whether we have

jurisdiction over this appeal under either the injunction analogy or the collateral order

doctrine. Because we conclude that the Bowmans’ challenges fail to meet the third

prong of both doctrines, which requires that the order at issue be effectively

unreviewable on appeal after final judgment, we dismiss this appeal for lack of

jurisdiction.

Both parties have briefed the jurisdictional question and both parties are in

agreement that the order at issue is interlocutory. As an interlocutory order, we have

appellate jurisdiction only if the order fits within the injunction analogy or the

collateral order doctrine theories of jurisdiction.

9
 Any analysis of an ex parte seizure of real property must begin with an

understanding of the Supreme Court’s decision in United States v. James Daniel

Good Real Property, 510 U.S. 43, 114 S. Ct. 492 (1993). Good concerned an ex parte

seizure of property under 21 U.S.C. § 881(a)(7). Under that section, property

connected to a felony drug crime could be seized if the Government established

probable cause to believe the property was connected with a felony drug crime. 21

U.S.C. § 881(b)(3). In concluding that the ex parte seizure of real property violates

due process rights absent exigent circumstances, the Good court conducted a

Mathews5 analysis. The Court concluded that (1) the private interest affected by an

ex parte seizure (property rights) is of historic and continuing importance, (2) the risk

of erroneous deprivation after an ex parte hearing is unacceptably high and the value

of additional safeguards (a pre-deprivation hearing) is therefore also high, and (3) the

Government interest (seizing property before forfeiture) did not justify the ex parte

seizure of real property and the administrative burden involved in holding a hearing

prior to seizure was not significant because the Government would have to hold a

hearing prior to forfeiture and “[f]rom an administrative standpoint it makes little

5
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). Under this analysis courts must
weigh the private interest affected by official action; the risk of an erroneous deprivation of that
interest through the procedures used, as well as the probable value of additional safeguards; and the
Government’s interest, including the administrative burden that additional procedural requirements
would impose. Id. at 335, 96 S. Ct. at 903.

10
difference whether that hearing is held before or after the seizure.” Good, 510 U.S.

at 59, 114 S. Ct. at 504. The Court determined that a general rule of pre-deprivation

hearings was to be violated only in “extraordinary situations.” Id. at 53, 114 S. Ct.

at 501. Therefore, “[u]nless exigent circumstances are present, the Due Process

Clause requires the Government to afford notice and a meaningful opportunity to be

heard before seizing real property subject to civil forfeiture.” Id. at 62, 114 S. Ct. at

505. Thus, Good indicates that we are to take a pre-deprivation standard of probable

cause and then add the requirement of exigent circumstances if the real property is to

be seized without pre-deprivation notice and hearing.

With Good in mind, the starting point for a jurisdictional analysis in this case

is to determine what the remedy is for an illegal seizure. Cases decided prior to the

Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), but subsequent to Good,6

demonstrate that claimants wishing to challenge a seizure believed to be illegal could

bring a claim after final judgment in the forfeiture proceeding. Prior to CAFRA, in

order to prevail at a forfeiture hearing, the Government was only required to establish

probable cause to believe the property in question was connected to crime. United

States v. Carrell, 252 F.3d 1193, 1200 (11th Cir. 2001). The burden then shifted to

6
All circuits dealing with cases where Good was decided while the case was on direct appeal
concluded that Good was retroactively applicable. See, e.g., United States v. Marsh, 105 F.3d 927,
931 (4th Cir. 1997).

11
the claimant to establish by a preponderance of the evidence that the property was not

connected to crime. Id. at 1201. If the claimant could not meet that burden, then the

property was forfeited. More often than not,7 the court found that the Government

established probable cause and the forfeiture was upheld on appeal.

Although the forfeiture might be upheld, the pre-forfeiture seizure could still

be deemed illegal because there was no pre-seizure notice and hearing. The circuits

split as to how to handle this situation. The Fourth and Tenth Circuits8 made findings

that there were no exigent circumstances justifying ex parte seizure and remanded so

that the district courts could determine damages, while the Seventh Circuit9 remanded

so that the district court could, in the first instance, make a determination as to

whether there were exigent circumstances. In United States v. Land, Winston County,

163 F.3d 1295, 1303 (11th Cir. 1998), this circuit determined that because there was

a general due process violation due to the lack of a pre-seizure hearing (without

7
In United States v. Real Property Located at 20832 Big Rock Dr., 51 F.3d 1402 (9th Cir.
1995), the court determined that there were no exigent circumstances, so the pre-forfeiture hearing
seizure was illegal. 51 F.3d at 1406. However, the forfeiture was not upheld due to defects in the
special verdict form and jury instructions and the case was reversed and remanded for a new trial.
Id. at 1407.
8
Marsh, 105 F.3d at 932; United States v. 51 Pieces of Real Property Roswell, N.M., 17
F.3d 1306, 1315 (10th Cir. 1994).
9
United States v. All Assets & Equip. of West Side Bldg., 58 F.3d 1181, 1193 (7th Cir.
1995).

12
specifically mentioning exigent circumstances), the case should be remanded to the

district court to determine damages. 163 F.3d at 1303.

All but one circuit have concluded that the remedy for an illegal seizure

“[w]here . . . the government fails to provide pre-deprivation notice and hearing, but

the property is found to be subject to forfeiture after the process due has been

afforded” is return of rents or lost profits during the period of illegal seizure. United

States v. Real Property Located at 1184 Drycreek Road, 174 F.3d 720, 728 (6th Cir.

1999); see also United States v. 408 Peyton Road, 162 F.3d 644, 647 (11th Cir. 1998)

(en banc); Land, Winston County, 163 F.3d at 1303; United States v. Marsh, 105 F.3d

927, 931 (4th Cir. 1997); United States v. All Assets & Equip. of West Side Bldg., 58

F.3d 1181, 1193 (7th Cir. 1995); United States v. Real Property Located at 20832 Big

Rock Dr., 51 F.3d 1402, 1406 (9th Cir. 1995); United States v. 51 Pieces of Real

Property Roswell, N.M., 17 F.3d 1306, 1315-16 (10th Cir. 1994). But see United

States v. One Parcel of Real Property Located at 9638 Chicago Heights, 27 F.3d 327,

330 (8th Cir. 1994) (stating that a Good violation requires dismissal of the forfeiture

action with leave to file a new action if the new action would still be timely). The

case before us is the first case where all of the proceedings are taking place after the

enactment of 18 U.S.C. § 985, so it presents an issue of first impression. But, because

13
§ 985 is in part a codification of Good, and we have caselaw addressing Good, we are

not without assistance.

Assuming arguendo that the Bowmans are correct that the Government did not

properly establish the existence of exigent circumstances, the pre-CAFRA caselaw

suggests that the post-CAFRA remedy for the owner of real property would be the

return of rents or lost profits. However, in these pre-CAFRA cases, the courts

concluded that while the seizure was illegal, the forfeiture was ultimately justified.

Hence, because these courts had confirmed that the Government’s permanent taking

of the real property was proper, the only remedy to which a petitioner could be

entitled was lost rents or profits for the period of illegal seizure. The Bowmans’ case

presents a new issue. Here, because there has been no hearing on the merits of the

forfeiture, the Bowmans are asking not for lost rents or profits, but for return of their

property. Thus, we must now consider an issue that did not face the courts

previously: whether the Government continues to be justified in its possession of the

property prior to the forfeiture hearing, despite its illegal seizure (based on a failure

to establish exigent circumstances).10

10
We assume for the sake of discussion that there were no exigent circumstances in this
case. We do not decide the issue.

14
 To address this concern we must determine what burden the Government

would bear if it had given the Bowmans notice and an opportunity to be heard prior

to seizing the Platinum Club. We conclude that the standard of proof at a pre-seizure

hearing under § 985(d)(1)(B)(i) is probable cause. This belief is based upon both the

language of the statute and on our reading of Good. First, the ex parte seizure subpart

of § 985 requires the Government to establish both probable cause to believe the

property to be seized is connected to crime and to establish the existence of exigent

circumstances. 18 U.S.C. § 985(d)(1)(B)(ii). The implication is that if the hearing

is conducted prior to seizure under § 985(d)(1)(B)(i), then the Government need only

establish probable cause to believe the real property is connected to crime.

This reading is supported by the reasoning in Good. In Good, the Supreme

Court emphasized that only when the normal requirements for seizure are combined

with the additional qualification of exigent circumstances, should the Government

be permitted to seize real property without affording the owner notice and an

opportunity to be heard. Good, 510 U.S. at 62, 114 S. Ct. at 505. Because §§ 985(d)

and (e) of CAFRA are essentially a codification of Good, we conclude that if notice

and an opportunity to be heard are given prior to seizure, then the Government need

only establish probable cause to believe that the property is connected to crime.

15
 It follows that if property is seized ex parte and the Government can show at

the § 985(e) post-seizure adversarial hearing that there is probable cause to believe

the property is connected to crime, but cannot establish exigent circumstances, then

the ex parte seizure is illegal and the proper remedy is to give the owner lost profits

or rents for the period of illegal seizure ) a period terminated by a finding confirming

the existence of probable cause following an adversarial hearing. But, because the

Government has established probable cause (the burden it would have carried had

there been a pre-seizure adversarial hearing), the Government can retain the property

until the forfeiture hearing. See Real Property Located at 1184 Drycreek, 174 F.3d

at 728 (finding that failure to establish exigent circumstances did not mean that the

forfeiture was void); 408 Peyton Road, 162 F.3d at 647 (same); In re Tomlin, 105

F.3d 927, 931 (4th Cir. 1997) (same); All Assets and Equip. of West Side Bldg., 58

F.3d at 1193 (same); Real Property Located at 20832 Big Rock Dr., 51 F.3d at 1406

(same); 51 Pieces of Real Property Roswell, N.M., 17 F.3d at 1319 (finding that

because the claimant did not contest probable cause, the forfeiture should be

affirmed). These cases were decided pre-CAFRA when the Government needed only

to establish probable cause to believe the property was connected to crime in order

to obtain a forfeiture. Hence, a failure to establish exigent circumstances combined

16
with success in establishing probable cause meant the Government kept the property

but owed damages for the time it illegally possessed the property.

We now apply the pre-CAFRA logic to this post-CAFRA case. It would not

be appropriate to return real property to the property owner if the Government can

establish at the post-seizure adversarial hearing (as it has in this case) that there is

probable cause to believe that the property is connected to criminal activity. The

effect of returning the property to the property owner under these circumstances

would be to allow the continuation of illegal activity, an outcome Congress surely did

not intend.

Turning to what Congress clearly did intend, we do not believe that allowing

the Government to retain possession of the property flouts the purpose of CAFRA.

CAFRA was “designed to increase the due process safeguards for property owners

whose property has been seized” and “to make federal civil forfeiture procedures fair

to property owners and to give owners innocent of any wrongdoing the means to

recover their property and make themselves whole after wrongful government

seizures.” H.R. Rep. 106-192, P.L. 106-185, Civil Asset Forfeiture Reform Act, June

18, 1999. More specifically, CAFRA was “designed to rectify an unfairness to the

individual vis-a-vis the government. It corrects an aberration that existed previously

by leveling the playing field between the government and persons whose property has

17
been seized,” i.e., forcing the Government to prove that property is subject to

forfeiture as opposed to forcing the property owner to prove his property is not

subject to forfeiture. United States v. Real Property in Section 9, Town 29 North, 241

F.3d 796, 799 (6th Cir. 2001). The burden of establishing the propriety of seizure is

always on the Government. If there is an ex parte seizure of real property and at the

post-seizure adversarial hearing the Government is unable to convince the court that

there is probable cause to believe that the property is connected to crime, then there

is no basis for seizure and the appropriate remedy is to return the property to the

owner. See, e.g., United States v. One 1974 Learjet 24D, Serial Number 24D-290,

Mexican Registration XA-RMF, 191 F.3d 668, 673 (6th Cir. 1999) (pre-CAFRA,

stating that lack of probable cause for seizure requires return of the property to its

owner). But that is not the case here. The Government has sustained its burden of

convincing the court, after the Bowmans have been given the CAFRA-created

opportunity to contest the basis of the seizure at an adversarial hearing, that there is

probable cause to believe that the Club is connected to crime. As for Congress’s

fairness concerns, “fairness” to the property owner does not mean allowing a property

owner to continue to use his property to further crime.

In summary, a real property owner who successfully challenges an ex parte

seizure on the ground that there was no probable cause to believe the property is

18
connected to crime may regain possession of his property. But if the real property

owner is only contending that there were no exigent circumstances to justify the ex

parte nature of the seizure (as in this case), the owner is not entitled to regain

possession, but may recover lost rents or profits. We draw this distinction because

the remedy is important under either an injunction analogy or collateral order theory

of jurisdiction. It is to these jurisdictional theories we now turn.

Under the injunction analogy, we have jurisdiction under 28 U.S.C. §

1292(a)(1) over an interlocutory order if the interlocutory order: (1) has the effect of

an injunction; (2) has serious, perhaps irreparable consequence; and (3) is effectively

unreviewable on appeal. United States v. City of Hialeah, 140 F.3d 968, 973 (11th

Cir. 1998).

Under the collateral order doctrine, a court may exercise appellate jurisdiction

if the challenged order: (1) conclusively determines a disputed question; (2) resolves

an important issue completely separate from the merits of the action; and (3) is

effectively unreviewable on appeal from final judgment. United States v. One Parcel

of Real Property with Bldgs., Appurtenances & Improvements, 767 F.2d 1495, 1497

(11th Cir. 1985) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546,

69 S. Ct. 1221, 1225 (1949)).

19
 We need not discuss the first and second prongs of these tests as it is necessary

to meet all three prongs and the Bowmans fail the third prong of both tests. The

Bowmans contend that any appeal following final judgment will involve only the

propriety of any forfeiture judgment and will not address the lawfulness of the seizure

prior to final judgment. The Government responds that the propriety of the seizure

would not be unreviewable on appeal following final judgment. We agree with the

Government.

What makes an issue “effectively unreviewable on appeal” is the insufficiency

of the remedy after final judgment. See One Parcel of Real Property with Bldgs.,

Appurtenances & Imporovements, 767 F.2d at 1497 (stating that an order is

effectively unreviewable after final judgment if it causes irreparable harm in the mean

time). In One Parcel of Real Property we stated that the harm that a business might

suffer due to loss of goodwill after being prohibited from selling certain items

available from competitors in neighboring towns pending a trial regarding the

constitutionality of the ordinance proscribing the sale of the items was “irreparable.”

Id. In that case, the passage of time until trial could increase the injury to goodwill

the business might innocently suffer should the ordinance be declared

unconstitutional at trial. In contrast, the passage of time will not increase the

Bowmans’ injury. If on appeal a court finds that there were no exigent circumstances,

20
the Bowmans’ injury will span a discrete period of time. The loss of goodwill, the

injury the Bowmans claim, is not a factor here, since under no circumstances may the

Bowmans recover their property and reopen their business prior to a final judgment

in their favor. Therefore, as the remedy discussion demonstrates, a claim of illegal

seizure based upon the Government’s failure to establish exigent circumstances is

effectively reviewable on appeal following final judgment. Hence, we do not have

jurisdiction to consider the Bowmans’ appeal under either the injunction analogy

theory of jurisdiction or the collateral order doctrine.

CONCLUSION

For the foregoing reasons, we hold that the remedy for an illegal ex parte

seizure based on the Government’s failure to establish exigent circumstances, where

the Government is able to establish probable cause to believe the property is

connected to crime at the post-seizure adversarial hearing, is a recovery by the real

property owner of rents or lost profits during the period of illegal seizure, with the

Government retaining possession of the property until the forfeiture action is decided

on the merits. In this case all of the Bowmans’ arguments go to the issue of exigent

circumstances, so at best they can hope to recover lost profits. The two theories that

could provide jurisdiction require a harm that will be effectively unreviewable after

final judgment. An exigent circumstances challenge is effectively reviewable on

21
appeal after final judgment in the forfeiture action. The passage of time will not

increase the injury the Bowmans suffer if their property was illegally seized because

the probable cause finding terminated the period of illegal seizure. Therefore, we

lack interlocutory appellate jurisdiction under either the injunction analogy or the

collateral order doctrine as the Bowmans’ challenges fail the third prongs of these

doctrines. Thus, we do not address the merits and dismiss this appeal.

APPEAL DISMISSED.

22
BARKETT, Circuit Judge, dissenting:

I believe that under either the “injunction analogy” approach or the collateral

order doctrine we have jurisdiction to hear this appeal because the proper remedy for

a violation of the Civil Asset Forfeiture Reform Act of 2000’s (“CAFRA”) ex parte

seizure provision is the return of the property to its owner. Denying the Bowmans

possession of their property will result in a loss of the business’ goodwill, which is

an irreparable harm that is effectively unreviewable on final appeal. Thus, this Court

may properly exercise jurisdiction over the case.1 See Florida Businessmen for Free

Enterprise v. City of Hollywood, 648 F.2d 956, 958 n.3 (5th Cir. 1981).2

The property at issue was seized through an ex parte, pre-forfeiture seizure

proceeding. However, CAFRA generally prohibits the governmental seizure of any

real property that is the subject of a civil forfeiture action unless and until a court

enters an actual forfeiture order with notice and a hearing provided to all relevant

parties. See 18 U.S.C. § 985(b)(1)(A) (“real property that is the subject of a civil

forfeiture action shall not be seized before entry of an order of forfeiture”). An

1
This assumes the satisfaction of the first and second prongs of either the injunction analogy
or the collateral doctrine. See United States v. City of Hialeah, 140 F.3d 968, 973 (11th Cir. 1998)
(injunction analogy); Sell v. United States, 123 S. Ct. 2174, 2182 (2003) (collateral order doctrine).

2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

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exception to this rule is set forth in 18 U.S.C. § 985(d)(1)(B)(ii), which permits the

ex parte seizure of real property if the district court first determines both that there is

probable cause for the forfeiture and that exigent circumstances prevent the

government from providing notice. 18 U.S.C. § 985(d)(1)(B)(ii); see also United

States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993) (hereinafter

“Good”) (stating that “[t]he right to prior notice and a hearing is central to the

Constitution’s command of due process”). Where either requirement is absent, the

seizure is invalid and the property should be returned to its owner. In this case, the

government failed to establish exigent circumstances at the pre-seizure hearing.3

The majority worries that “the effect of returning the property to the property

owner under these circumstances would be to allow the continuation of illegal

activity. . . .” Majority Opinion at 17. However, CAFRA articulates numerous

methods that allow for the return of a property to its owner while concurrently

protecting both the government’s interest in preventing continued illegal activity and

3
“[T]o establish exigent circumstances, the Government [must] show that less restrictive
measures such as a lis pendens, restraining order, or bond would not suffice to protect the
Government's interests in preventing the sale, destruction, or continued unlawful use of the real
property.” 18 U.S.C. § 985(d)(2). As this subsection makes plain, bare governmental concerns
about the continued unlawful use of real property do not establish exigent circumstances. Rather,
the government must “show that less restrictive measures” would be insufficient to combat this
continued unlawful use. Id. Here, the government presented no evidence to establish the futility of
less restrictive measures, such as an arrest warrant, restraining order, or the appointment of a
custodian to operate the business.

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the owner’s interest in preserving the property’s financial value.4 Most relevant to

this case, CAFRA countenances the appointment of a custodian to take administrative

control over a property at any time, including at the § 985(d)(1)(e) post-seizure

hearing. See 18 U.S.C. § 983(j). By appointing a custodian, the court can guard

against the continued illegal use of a property without perpetuating an unlawful

seizure. Indeed, it is precisely because the government has at its disposal numerous

and sundry less restrictive devices to prevent ongoing criminal activity that an ex

parte, pre-forfeiture seizure is so heavily disfavored by both the Constitution and

CAFRA.5 See Good, 510 U.S. at 58. In contrast, permitting the government to retain

an illegally seized property results in an evisceration of CAFRA’s prohibitions. See

18 U.S.C. § 985(d)(1)(B)(ii), (e).

4
Indeed, 18 U.S.C. § 983(j)(1) sets forth several alternatives to pre-forfeiture seizures:
Upon application of the United States, the court may enter a restraining order or injunction,
require the execution of satisfactory performance bonds, create receiverships, appoint
conservators, custodians, appraisers, accountants, or trustees, or take any other action to
seize, secure, maintain, or preserve the availability of property subject to civil forfeiture.
18 U.S.C. § 983(j)(1).

5
It is of little moment that, in this case, the Government filed a lis pendens against the
Platinum Club. This is not an appropriate “less restrictive measure” to prevent the continued
unlawful use of real property. “The purpose of a lis pendens is to notify prospective purchasers and
encumbrancers that any interest acquired by them in property is subject to the decision of the court
in pending litigation.” United States v. 408 Peyton Rd., 162 F.3d 644, 646 n.2 (11th Cir. 1998).
While such notice is likely very helpful in preventing the unauthorized sale of a property, it can have
no impact on the continued unlawful use of a property. See Good, 510 U.S. at 58-59.

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 CAFRA makes it clear that the § 985(e) post-seizure hearing is specifically

designed to ensure that the original ex parte seizure itself was proper. See 18 U.S.C.

§ 985(e). Section 985(e) states that “[i]f the court authorizes a seizure of real

property under subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure hearing

during which the property owner shall have the opportunity to contest the basis for

the seizure.” Id. Again, under § 985 (d)(1)(B)(ii), the basis for an ex parte seizure

is a showing of both probable cause and exigent circumstances. Thus, if at the post-

seizure hearing a property owner is able to show that either probable cause or exigent

circumstances were not present at the pre-seizure hearing, then the seizure is illegal

and, therefore, invalid. See 18 U.S.C. § 985(b)(1)(A). A finding of probable cause,

alone, at the post-seizure hearing cannot remedy an otherwise deficient seizure.6

Indeed, I find it illogical to conclude that, although an ex parte seizure is

improper when the government fails to satisfy one of the two requirements set forth

in § 985(d)(1)(B)(ii) (e.g., exigent circumstances), the seizure may nonetheless

continue if, at the post-seizure hearing, the government satisfies only one of the two

requirements (e.g., probable cause). Under this rationale, the government could

6
As we have previously stated, “[t]he [Supreme] Court [has] rejected the argument that due
process is satisfied by a post-seizure hearing.” United States v. 2751 Peyton Woods Trail, 66 F.3d
1164, 1166 (11th Cir. 1995) (citing Good, 510 U.S. at 62). Here, the process due was a showing of
both probable cause and exigent circumstances. See 18 U.S.C. § 985(d)(1)(B)(ii); Good, 510 U.S.
at 53.

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always flout the exigent circumstances requirement of an ex parte, pre-forfeiture

seizure because the seizure would invariably be vindicated at the post-seizure hearing

based solely on probable cause. Such a conclusion directly contravenes the plain

language of CAFRA. See 18 U.S.C. § 985(d)(1)(B)(ii), (b)(1)(A). We should not

permit the government to accomplish indirectly that which it cannot achieve directly

under § 985(d)(1)(B)(ii) and thereby plainly disregard the law.

Because we have jurisdiction upon a proper understanding of the remedy for

an unlawful ex parte seizure (i.e. the return of the seized property to its owner), I

respectfully dissent.

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