The opinion of the court was delivered by: OBERDORFER
Currently pending are plaintiff's Motion for Summary Judgment and claimant's Motion to Dismiss. The latter alleges that the United States failed to give claimant Kimberly Honesty notice and a hearing prior to "seizing" the defendant properties, in violation of the Fifth Amendment's due process clause and United States v. Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). The parties agree that the United States filed and served a complaint and a warrant on the properties in September 1996; that the United States filed lis pendens notices in accordance with Maryland law at around the same time; and that Kimberly Honesty has lived at one of the properties otherwise undisturbed since the commencement of this lawsuit. Because claimant's motion raises the unsettled legal question of what constitutes a governmental seizure requiring notice and a predicate hearing, additional evidence is required for a decision.
In essence, claimant makes three arguments in favor of dismissal. First, she contends that the execution of an in rem arrest warrant on the defendant properties constitutes a "seizure" under Good Real Property. She notes that the warrant "commanded" the U.S. Marshal "to attach the defendant property and to detain it in [its] custody . . . ." Warrant of Arrest In Rem (Sept. 10, 1996). For support, she relies principally on an Eleventh Circuit ruling, United States v. 408 Peyton Road, S.W., 112 F.3d 1106 (11th Cir. 1997), which charged the government with an unconstitutional ex parte seizure based alone on the execution of an in rem arrest warrant, absent a physical taking. This is a question of first impression in this Circuit.
Second and independently, claimant argues that the government's use of lis pendens notices constitutes a "seizure" under Good Real Property. She contends that United States failed to make "a proper showing in district court" of its need to prevent the sale of her properties. Good Real Property, 510 U.S. at 58. Moreover, she argues that the United States has obstructed her efforts to use the proceeds from the sale of one defendant- res in this case (an undeveloped lot known as "Burleigh Manor") to meet her mortgage payments on the second defendant- res (her residence, known as "Jones Bridge Road"). As a result, her lender has initiated foreclosure proceedings on the Jones Bridge Road residence. She also charges that, after the United States obstructed her efforts to sell the residence, it offered to prevent the foreclosure if she settled this lawsuit. She argues, "This is clear and convincing evidence of the fact that the government has seized the property and asserted control over it." Claimant's Reply to Pl.'s Opp. to Mot. to Dismiss, at 2.
Third, claimant argues that the appropriate remedy for an unconstitutional seizure under Good Real Property is dismissal, as distinguished, for example, from a stay of further government actions pending a due process hearing. The Supreme Court has never addressed this question of remedy. See Good Real Property, 510 U.S. at 65 (remanding case "for further proceedings"). Consequently, claimant turns to the Eleventh Circuit's Peyton Road ruling and the Eighth Circuit's judgment in United States v. One Parcel of Real Property Located at 9638 Chicago Heights, 27 F.3d 327 (8th Cir. 1994), both of which apply Good Real Property to dismiss the underlying forfeiture actions. Claimant's contention raises another question of first impression here.
Several of claimant's contentions can be dismissed summarily, without further fact finding. Some of the law enforcement measures that Kimberly Honesty characterizes as "seizures" enjoy the express imprimatur of the Supreme Court and do not implicate her due process rights. The Court in Good Real Property endorsed the government's right to file ex parte a notice of lis pedens "to ensure that the property not be sold . . . prior to the forfeiture judgment," 510 U.S. at 58, even while it cautioned generally against the deprivation of "valuable rights of ownership, including the right of sale." Id. at 54. The government can take such action "without seizing the subject property," id. at 58, and thereby without triggering the due process rights to notice and a hearing.
Thus, the mere fact that the Government contacted Honesty's real estate agent and "informed him that there was a federal case against the property," Honesty Aff., at P 10, does not provide grounds for dismissal.
Moreover, in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974), the Court upheld the ex parte seizure of property "that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given." See also Good, 510 U.S. at 52 (interpreting Calero-Toledo). The holding in Good Real Property is explicitly limited to the seizure of real property. See id. at 57. Consequently, Honesty cannot protest the seizure of cash proceeds from the sale of Burleigh Manor even if it deprives her of resources to meet her mortgage obligations on her residence at Jones Bridge Road. While she may face eviction if her lender forecloses on the residence, that "seizure" by a strictly private actor does not trigger the due process clause.
The United States evidently does not think much of Honesty's other arguments for dismissal either. But even assuming (without deciding) that the execution of an in rem arrest warrant is not a "seizure," and that the remedy for an unconstitutional seizure is not dismissal in any event, Honesty's remaining factual allegations merit closer attention. It remains an open question what government acts in the nature of an exercise of "dominion and control," United States v. Causby, 328 U.S. 256, 267, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946), short of a physical taking but beyond the posting of an arrest warrant and the filing of lis pendens, constitute a Good Real Property seizure. If the United States used its lis pendens notice on the Jones Bridge Road residence to induce Honesty to settle her Burleigh Manor claim--rather than strictly "to ensure that the property not be sold . . . prior to the forfeiture judgment," 510 U.S. at 58--it is at least arguable that Honesty suffers a due process violation and is entitled to some form of remedy.
In court on October 6, the United States represented that it would likely drop its charge against the Honesty residence if it prevailed against Burleigh Manor. According to Honesty, the government is using that charge in conjunction with the prospect of a bank foreclosure on the residence to pressure her to settle. She alleges,
The federal government . . . agreed to let the mortgage company sell the property but would have stopped them from making the sale if I had entered into an agreement with them about this case. I did not agree to their terms and so they were going to allow the mortgage company to sell.