SIMPSON, Circuit Judge:
On April 24, 1975, Texas law enforcement officers in the course of their duties and pursuant to a search warrant discovered a “sawed off” shotgun in a 1975 Cadillac Fleetwood Sedan owned by Evelyn and Virginia Castleberry.
The state officers promptly notified the Alcohol, Tobacco, and Firearms Division of the Treasury Department. As the shotgun is alleged to be a destructive device
prohibited by Title 26 U.S.C. Section 5845(d) the car in which it was found was seized pursuant to Title 49 U.S.C. Sections 781, and 782. On May 15, 1975, the Castleberrys filed a civil action in federal district court against the Alcohol, Tobacco, and Firearms Division of the Treasury Department, Houston Division (ATF hereinafter)
and against Gerald A. Lawrence, Houston area supervisor of ATF, and Jimmy Wooten, the ATF agent who seized the vehicle, individually and in their official capacities, asking return of the car and damages. The complaint alleged somewhat ambiguously that the Cadillac was “wrongfully stolen” by the defendants. On the same day District Judge Seals, on the basis of the complaint, issued a “Judge’s Fiat” forbidding defendants “to dispose of, abscond with, use, or in any other manner hypothecate the 1975 Cadillac herein” pending further proceedings. A hearing was directed to be held May 28, 1975, to show cause why the 1975 Cadillac should not be returned to plaintiffs. The matter came on to be heard on May 28 before District Judge Singleton.
Judge Singleton issued an order immediately following that hearing finding that the defendants “did not timely file
a petition for seizure of said 1975 Cadillac automobile in that said automobile was seized from petitioners on April 24, 1975, and as of hearing date on May 28, 1975, no forfeiture proceedings had been filed and the Assistant U. S. Attorney, W. Palmer Kelly could offer no reasonable explanation as to why said forfeiture proceedings had not been timely filed.” The court therefore ordered the Cadillac to be returned forthwith to plaintiffs. Judge Singleton refused to issue a stay pending appeal. A panel of this court granted an emergency stay, preceded by a short single judge stay preserving the
status quo
to permit application to the panel. Subsequent to Judge Singleton’s order and this appeal the United States brought a condemnation libel for forfeiture of the car. This action is now pending on the civil docket of yet a third district judge of the Southern District of Texas.
Primary to decision of this appeal is consideration of the jurisdictional issue presented. If the agents involved did “wrongfully steal” the Cadillac, it was not, of course, in the course of their official duties. Proper jurisdiction would then be in the state courts in an action such as replevin, detinue, or perhaps trover.
Allen v. David,
5 Cir. 1964, 334 F.2d 592, 599, cert. denied 1965, 379 U.S. 967, 85 S.Ct. 660, 13 L.Ed.2d 560. On the other hand, if defendants were acting in an official capacity when they took the car, then the suit is actually one against the United States, and perhaps barred by sovereign immunity. See
Larson v. Domestic and Foreign Service Corp.,
1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.
Each of the parties relies upon
In re Behrens,
2 Cir. 1930, 39 F.2d 561. The dearth of more recent authority requires that we examine
Behrens
here in some detail. There federal prohibition agents broke into the petitioner’s home and garage without a valid warrant and confiscated equipment and utensils found there which were termed “appropriate for a brewery.” The plaintiff brought a summary proceeding against the agents for return of the equipment, which relief the district court refused. The Circuit Court of Appeals, after discussing applicable jurisdictional principles, including the problem of sovereign immunity, and the prohibition statutes, held that upon the filing of the petition and a “show cause” hearing thereon, the district court should have directed the prohibition administrator to institute forfeiture proceedings promptly (the Second Circuit thought within ten days to be appropriate) or to abandon the seizure and return the property. The
Behrens
court relied upon,
inter alia,
the case of
Slocum v. Mayberry,
2 Wheat 1, 4 L.Ed. 169, a case arising from the seizure of a vessel under the Embargo Act of April 25, 1808, 2 Stat. 499. Chief Justice Marshall, for the Court, stated:
“The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question, whether that forfeiture has been actually incurred, belongs exclusively to the federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts whether such seizure is to be deemed rightful or tortious.
If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the
seizure.”
emphasis added, 1 Wheat at 9, 4 L.Ed. at 171, quoted within
Behrens,
supra, 39 F.2d at 563. This reasoning is applicable here. A requirement that the Treasury agents institute forfeiture proceedings promptly or else return the property and abandon the seizure, and at the same
time following the admonition of the
Behrens
court- that the legality of the seizure itself is to be determined in the forfeiture proceedings and not as an aspect of the present action, appears to us to be the limit of the relief a district court may grant in this situation.
Within this limited relief the district court may determine whether the ATF or its agents are in fact unreasonably delaying the filing of the forfeiture proceedings. This determination of diligence or lack of it by the government agents does not reach the merits of the forfeiture itself. The provisional relief suggested which is subject to the government undertaking to properly file forfeiture proceedings, is markedly different from the relief granted by Judge Singleton, which was so complete as to preclude any determination of the merits of the seizure. We reiterate that the proper place to litigate the legality of the seizure of the automobile is in the forfeiture proceedings and not elsewhere.
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SIMPSON, Circuit Judge:
On April 24, 1975, Texas law enforcement officers in the course of their duties and pursuant to a search warrant discovered a “sawed off” shotgun in a 1975 Cadillac Fleetwood Sedan owned by Evelyn and Virginia Castleberry.
The state officers promptly notified the Alcohol, Tobacco, and Firearms Division of the Treasury Department. As the shotgun is alleged to be a destructive device
prohibited by Title 26 U.S.C. Section 5845(d) the car in which it was found was seized pursuant to Title 49 U.S.C. Sections 781, and 782. On May 15, 1975, the Castleberrys filed a civil action in federal district court against the Alcohol, Tobacco, and Firearms Division of the Treasury Department, Houston Division (ATF hereinafter)
and against Gerald A. Lawrence, Houston area supervisor of ATF, and Jimmy Wooten, the ATF agent who seized the vehicle, individually and in their official capacities, asking return of the car and damages. The complaint alleged somewhat ambiguously that the Cadillac was “wrongfully stolen” by the defendants. On the same day District Judge Seals, on the basis of the complaint, issued a “Judge’s Fiat” forbidding defendants “to dispose of, abscond with, use, or in any other manner hypothecate the 1975 Cadillac herein” pending further proceedings. A hearing was directed to be held May 28, 1975, to show cause why the 1975 Cadillac should not be returned to plaintiffs. The matter came on to be heard on May 28 before District Judge Singleton.
Judge Singleton issued an order immediately following that hearing finding that the defendants “did not timely file
a petition for seizure of said 1975 Cadillac automobile in that said automobile was seized from petitioners on April 24, 1975, and as of hearing date on May 28, 1975, no forfeiture proceedings had been filed and the Assistant U. S. Attorney, W. Palmer Kelly could offer no reasonable explanation as to why said forfeiture proceedings had not been timely filed.” The court therefore ordered the Cadillac to be returned forthwith to plaintiffs. Judge Singleton refused to issue a stay pending appeal. A panel of this court granted an emergency stay, preceded by a short single judge stay preserving the
status quo
to permit application to the panel. Subsequent to Judge Singleton’s order and this appeal the United States brought a condemnation libel for forfeiture of the car. This action is now pending on the civil docket of yet a third district judge of the Southern District of Texas.
Primary to decision of this appeal is consideration of the jurisdictional issue presented. If the agents involved did “wrongfully steal” the Cadillac, it was not, of course, in the course of their official duties. Proper jurisdiction would then be in the state courts in an action such as replevin, detinue, or perhaps trover.
Allen v. David,
5 Cir. 1964, 334 F.2d 592, 599, cert. denied 1965, 379 U.S. 967, 85 S.Ct. 660, 13 L.Ed.2d 560. On the other hand, if defendants were acting in an official capacity when they took the car, then the suit is actually one against the United States, and perhaps barred by sovereign immunity. See
Larson v. Domestic and Foreign Service Corp.,
1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.
Each of the parties relies upon
In re Behrens,
2 Cir. 1930, 39 F.2d 561. The dearth of more recent authority requires that we examine
Behrens
here in some detail. There federal prohibition agents broke into the petitioner’s home and garage without a valid warrant and confiscated equipment and utensils found there which were termed “appropriate for a brewery.” The plaintiff brought a summary proceeding against the agents for return of the equipment, which relief the district court refused. The Circuit Court of Appeals, after discussing applicable jurisdictional principles, including the problem of sovereign immunity, and the prohibition statutes, held that upon the filing of the petition and a “show cause” hearing thereon, the district court should have directed the prohibition administrator to institute forfeiture proceedings promptly (the Second Circuit thought within ten days to be appropriate) or to abandon the seizure and return the property. The
Behrens
court relied upon,
inter alia,
the case of
Slocum v. Mayberry,
2 Wheat 1, 4 L.Ed. 169, a case arising from the seizure of a vessel under the Embargo Act of April 25, 1808, 2 Stat. 499. Chief Justice Marshall, for the Court, stated:
“The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question, whether that forfeiture has been actually incurred, belongs exclusively to the federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts whether such seizure is to be deemed rightful or tortious.
If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the
seizure.”
emphasis added, 1 Wheat at 9, 4 L.Ed. at 171, quoted within
Behrens,
supra, 39 F.2d at 563. This reasoning is applicable here. A requirement that the Treasury agents institute forfeiture proceedings promptly or else return the property and abandon the seizure, and at the same
time following the admonition of the
Behrens
court- that the legality of the seizure itself is to be determined in the forfeiture proceedings and not as an aspect of the present action, appears to us to be the limit of the relief a district court may grant in this situation.
Within this limited relief the district court may determine whether the ATF or its agents are in fact unreasonably delaying the filing of the forfeiture proceedings. This determination of diligence or lack of it by the government agents does not reach the merits of the forfeiture itself. The provisional relief suggested which is subject to the government undertaking to properly file forfeiture proceedings, is markedly different from the relief granted by Judge Singleton, which was so complete as to preclude any determination of the merits of the seizure. We reiterate that the proper place to litigate the legality of the seizure of the automobile is in the forfeiture proceedings and not elsewhere.
Moreover, we doubt that the district court’s summary disposition gave adequate consideration to whether or not the ATF agents were dilatory in this matter. The car was seized April 24, 1975. On May 15, 1975, twenty-one days later, the plaintiffs obtained Judge Seal’s fiat forbidding the defendants from disposing of, absconding with, “or in any other manner hypothecating] the 1975 Cadillac herein”. The government insists that this language may be fairly construed as forbidding the filing of a forfeiture action, pending the hearing scheduled for May 28 by Judge Seals’ order. (As noted, the matter came on before Judge Singleton)
This is not an unreasonable assumption on the part of the government in light of the total circumstances, particularly since the institution of a libel for forfeiture would shift the custody of the car from the ATF agents, the parties restrained by the order, to the United States Marshal. Judge Singleton’s comments at the hearing of May 28 made it clear that he did not regard Judge Seals’ order as any impediment to the filing of a libel in rem for forfeiture of the seized automobile.
This determination, while debatable, is perhaps not critical to an assessment of the diligence with which the government was preparing for the filing of a libel against the Cadillac. Only 34 days elapsed between the seizure on April 24 and the order of May 28 for the car to be returned. Forfeiture proceedings were filed four days later. Thirty-eight days from seizure of property to the filing of an in rem libel for forfeiture may not constitute unconscionable delay in the absence of aggravating circumstances, although we find no reason to decide that question here.
We note that libels in rem for forfeiture, although a relatively simple problem from the U. S. Attorney’s point of view, and
requiring of him a minimum of paperwork before filing, may not proceed until the Bureau of Alcohol, Tobacco, and Firearms of the Treasury Department transmits to the United States Attorney’s office files and materials relevant to the underlying seizure. It is inevitable that this process requires a certain amount of time that is outside the control of the United States Attorney as the party initiating forfeiture.
The provisional limited relief sketched earlier is we believe encompassed within the equitable powers of the district court necessarily inherent in the court’s supervision of its own docket.
Although the forfeiture already instituted below perhaps renders our views largely dictum, we believe that when a district judge is persuaded that an unconscionable delay is taking place on the part of the seizing government agency he should grant provisional relief to the plaintiff, subject to the seizing agency’s bringing proper forfeiture proceedings within a reasonable length of time. But there is no basis for a district court’s summary disposition of the merits of the forfeiture itself, which is essentially what occurred below.
The order appealed from is vacated with directions to dismiss the complaint. The subsequently instituted proceedings for forfeiture are the appropriate vehicle for disposition of the merits of the seizure. Should the owners prevail on the merits, the Tucker Act provides the remedy for damages for detention.
VACATED and REMANDED with directions.