                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0019n.06

                                         Case No. 15-6353

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Jan 10, 2017
UNITED STATES OF AMERICA,                             )                       DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE EASTERN DISTRICT OF
1308 SELBY LANE, KNOXVILLE, TN                        )      TENNESSEE
37922, REAL PROPERTY,                                 )
       Defendant,                                     )
                                                      )      OPINION
KNOX COUNTY,                                          )
                                                      )
       Defendant-Appellant.                           )


BEFORE: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Knox County, Tennessee (“Knox

County”) claims that the United States Attorney denied it, as a local taxing authority, due process

in a forfeiture proceeding involving real property located at 1308 Selby Lane and 1525 Wembley

Hill Road, Knoxville, Tennessee (collectively, the “Defendant Property”).             Based on that

premise, Knox County filed a motion for relief from judgement and to determine the validity and

extent of tax liens it held on the Defendant property. The district court denied the motion finding

the forfeiture proceeding was valid. Knox County appeals. Because Knox County did not

properly intervene in the district court case, it was never a proper party to the lawsuit, and so this
No. 15-6353, United States v. 1308 Selby Ln., et al.


Court lacks subject matter jurisdiction over this proceeding. Thus we DISMISS Knox County’s

appeal.

                                                   I.

          The United States initiated an in rem civil forfeiture action on October 1, 2010 against the

Defendant Property. On September 27, 2012, the district court entered an ex parte Agreed

Consent Order and Entry of Forfeiture (the “Ex Parte Consent Order”) purporting to forfeit the

Defendant Property to the United States. On October 24, 2014 the United States informed Knox

County that the Defendant Property was scheduled to be sold. On November 6, 2014, Knox

County and the United States filed a Joint Motion for Agreed Order Holding Proceeds of Sale in

Escrow (the “Joint Motion”) until the validity and extent of Knox County’s tax lien could be

formally resolved. On December 12, 2014, Knox County filed a separate Motion for Relief from

Judgment and to Determine the Validity and Extent of Tax Lien. On April 16, 2016, the district

court issued a Memorandum and Opinion denying Knox County’s motion. On May 13, 2015,

Knox County filed a Motion to Alter or Amend Judgment. On October 29, 2015, the district

court denied this motion as well. Knox County filed the instant appeal on December 8, 2015.

                                                   II.

          Although the parties did not raise the issue in their briefs, this Court has “an independent

obligation to determine whether subject-matter jurisdiction exists, even in the absence of a

challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). “If the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.” Fed. R. Civ. P. 12(h)(3). In the absence of jurisdiction, this Court’s only function is to

announce the lack of jurisdiction and dismiss or remand the case. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 74 U.S. 506, 514 (1869)).



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No. 15-6353, United States v. 1308 Selby Ln., et al.


Because this requirement “springs from the nature and limits of the judicial power of the United

States, [it] is inflexible and without exception.” Id. at 94-95, quoting Mansfield, C. & L.M.R. Co.

v. Swan, 111 U.S. 379, 382 (1884)).

       “The rule that only parties to a lawsuit, or those that properly become parties, may appeal

an adverse judgment is well settled.” Marino v. Ortiz, 484 U.S. 301 (1988) (per curiam);

Karcher v. May, 484 U.S. 72, 77 (1987) (collecting cases); Fidel v. Farley, 534 F.3d 508, 512

(6th Cir. 2008) (“Generally, non-parties cannot appeal from an order of the district court, unless

they have first sought leave to intervene as a party.”). For this Court to have jurisdiction to hear

Knox County’s appeal, Knox County must have properly become a party to this lawsuit. Id.; see

also United States v. One-Sixth Share, 326 F.3d 36, 40 (1st Cir. 2003) (“Because civil forfeiture

is an in rem proceeding, the property subject to forfeiture is the defendant. Thus, defenses

against the forfeiture can be brought only by third parties, who must intervene.”); United States

v. All Funds in Banco Español de Credito, 295 F.3d 23, 25 (D.C. Cir. 2002) (“Civil forfeiture

actions are brought against property, not people. The owner of the property may intervene to

protect his interest.”). There are three ways that Knox County could have intervened in this case.

First, Knox County could have filed a verified claim stating its interest in the forfeited property

pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims, as required by

the civil forfeiture statute relevant here. See 18 U.S.C. § 983(a)(4)(A); One-Sixth Share, 326

F.3d at 41. Second, Knox County could have moved to intervene before the district court

pursuant to Federal Rule of Civil Procedure 24. Finally, Knox County could have asked us for

permission to intervene post-judgment for purposes of appeal. See United Airlines, Inc. v.

McDonald, 432 U.S. 385, 394 (1977). Knox County did none of those things. We reviewed the

district court records and it appears that Knox County never filed a motion to intervene.



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No. 15-6353, United States v. 1308 Selby Ln., et al.


Moreover, during oral arguments, Knox County conceded that it did not file a motion to

intervene. Thus, we lack jurisdiction to hear this appeal.

                                                III.

        For the foregoing reasons, we DISMISS this appeal for lack of subject matter

jurisdiction.   Because we lack jurisdiction, we express no opinion on the merits of Knox

County’s claim.




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No. 15-6353, United States v. 1308 Selby Ln., et al.


       KETHLEDGE, Circuit Judge, concurring in the judgment in part and dissenting in part.

       I respectfully disagree with my colleagues that we lack jurisdiction over the entirety of

this appeal. True, we lack jurisdiction over the County’s appeal from the district court’s original

consent judgment, if only because that judgment was entered more than four years ago. See Fed.

R. App. P. 4(a)(1)(B). But the County also appeals the district court’s denial of the County’s

own motion under Fed. R. Civ. P. 60(b). And the County’s problem there is not jurisdictional,

but rather that it is not a “party” entitled to relief under Rule 60(b). See generally Bridgeport

Music, Inc. v. Smith, 714 F.3d 932, 939 & n.6 (6th Cir. 2013). Nor is the County entitled to

relief as a nonparty, not least because the appeal itself is plainly meritless. See id. at 939-42. I

would therefore affirm the district court’s judgment rather than dismiss the appeal.




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