United States v. $197,557.00

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2007
• Docket: 07-30090
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 26, 2007

Charles R. Fulbruge III Clerk No. 07-30090 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD LEWIS HANSARD,

Claimant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana (5:88-CV-1318)

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Proceeding pro se, Edward Lewis Hansard appeals the district

court’s denial, without written reasons, of his post-judgment

motion seeking to void the civil forfeiture of $197,577 in United

States currency pursuant to 21 U.S.C. § 881(a)(6).

Hansard filed the motion at issue 18 years after the currency

was seized pursuant to a default judgment, and two years after the

denial of his Federal Rule of Civil Procedure 60(b) motion for

relief from that judgment, which our court affirmed in United

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. States v. $197,557.00 in U.S. Currency, 170 F. App’x 328 (5th Cir.

2006). In the instant motion, he contended: pursuant to Scarabin

v. Drug Enforcement Admin., 966 F.2d 989 (5th Cir. 1992), the

district court lacked subject-matter jurisdiction over the

forfeiture proceeding because the Drug Enforcement Administration

possessed only a cashier’s check and never possessed the actual

currency; and, therefore, the default judgment was void. (This

same issue was raised in the above-referenced appeal. Because it

was raised for the first time on appeal, our court did not consider

it. $197,557.00 in U.S. Currency, 170 F. App’x at 328.)

Liberally construed, Hansard’s motion again sought relief

pursuant to Rule 60(b)(4) (allowing relief “from a final judgment

... [if] the judgment is void”). See Harcon Barge Co., Inc. v. D

& G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc)

(“If ... the motion asks for some relief other than correction of

a purely clerical error and is served after ... [ten days from the

judgment], then Rule 60(b) governs its timeliness and effect.”);

see also Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204,

208 & n.9 (5th Cir. 2003) (“a judgment may be set aside under Rule

60(b)(4) ... if the initial court lacked subject matter ...

jurisdiction”). The denial of such a motion is reviewed de novo.

See Callon, 351 F.3d at 208; see also, e.g., Gandy Nursery, Inc. v.

United States, 318 F.3d 631, 636 (5th Cir. 2003) (“Subject matter

jurisdiction is reviewed de novo as a question of law.”).

2 Rule 60(b)(4) relief, however, is not available to Hansard.

A district court’s exercise of subject-matter jurisdiction, even if

erroneous, is res judicata and is not subject to collateral attack

through Rule 60(b)(4) if the party seeking to void the judgment had

the opportunity previously to challenge jurisdiction and failed to

do so. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites

de Guinee, 456 U.S. 694, 702 n.9 (1982); Picco v. Global Marine

Drilling Co., 900 F.2d 846, 850 (5th Cir. 1990) (where party had

notice of order in question and opportunity to challenge

jurisdiction on appeal, but did not do so, holding he was “barred

from challenging ... jurisdiction in a Rule 60(b)(4) proceeding”).

Hansard did not appeal the default judgment, and did not challenge

jurisdiction in his previously-filed Rule 60(b) motion.

Accordingly, denial of the instant motion was proper. See Ins.

Corp. of Ireland, 456 U.S. at 702 n.9; Picco, 900 F.2d at 850.

AFFIRMED