Optional Capital v. Kim ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff,
and
CHRISTOPHER KIM, a/k/a KYUNG
JOON KIM, KJ KIM and CHRIS KIM;
BORA LEE; SE YOUNG KIM; YOUNG
AI KIM; ERICA M. KIM; FIRST
STEPHORA AVENUE, INC.;
ALEXANDRIA INVESTMENT, LLC,
Claimants-Appellees,
OPTIONAL CAPITAL, INC., a/k/a
OPTIONAL VENTURES, No. 06-56158
Claimant-Appellant,
D.C. Nos.
v.  CV-04-02788-ABC
REAL PROPERTY LOCATED AT 475 CV-04-03386-ABC
MARTIN LANE, BEVERLY HILLS CV-05-03910-ABC
CALIFORNIA, Real Property located
at, a/k/a Seal A; 924 NORTH
BEVERLY DRIVE, BEVERLY HILLS,
CALIFORNIA, Real Property located
at, a/k/a/ Seal A; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-844548-6 IN
THE NAME OF ALEXANDRIA
INVESTMENT, LLC; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-922787-3 IN
THE NAME OF ERICA MIHAE KIM;

14053
14054 KIM v. REAL PROPERTY
$956,525.06 IN FUNDS SEIZED, 
from United Commercial Bank
Account No. 63600084, in the
name of First Stephora Avenue,
Inc.; $157,329.05 IN FUNDS SEIZED,
from United Commercial Bank
Account No. 63599914, in the
name of Alexandria Investment,
LLC; $174,315.16 IN FUNDS SEIZED
from Wilshire State Bank Account
No. 3219380, in the name of Se
Young Kim; 2004 MERCEDES BENZ 
CL500, one; 2002 MERCEDES BENZ
S500, one; 1990 FERRARI 550
MARANELLO, one; 2003 LANDROVER
RANGE ROVER, one; 2002 PORSCHE
BOXSTER, one; 2002 TOYOTA
TACOMA PICKUP TRUCK, one; 1999
PORSCHE CARRERA, one VARIOUS
MISCELLANEOUS FURNITURE AND
HOUSEHOLD ITEMS,
Defendants.

KIM v. REAL PROPERTY 14055
UNITED STATES OF AMERICA, 
Plaintiff,
and
CHRISTOPHER KIM, a/k/a KYUNG
JOON KIM, KJ KIM and CHRIS KIM;
BORA LEE; SE YOUNG KIM; YOUNG
AI KIM; ERICA M. KIM; FIRST
STEPHORA AVENUE, INC.;
ALEXANDRIA INVESTMENT, LLC,
Claimants-Appellees,
DAS CORPORATION, f/k/a DAEBU
MACHINERY CO. LTD., No. 06-56168
Claimant-Appellant,
D.C. Nos.
v.  CV-04-02788-ABC
REAL PROPERTY LOCATED AT 475 CV-04-03386-ABC
MARTIN LANE, BEVERLY HILLS CV-05-03910-ABC
CALIFORNIA, Real Property located
at, a/k/a Seal A; 924 NORTH
BEVERLY DRIVE, BEVERLY HILLS,
CALIFORNIA, Real Property located
at, a/k/a/ Seal A; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-844548-6 IN
THE NAME OF ALEXANDRIA
INVESTMENT, LLC; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-922787-3 IN
THE NAME OF ERICA MIHAE KIM;

14056 KIM v. REAL PROPERTY
$956,525.06 IN FUNDS SEIZED, 
from United Commercial Bank
Account No. 63600084, in the
name of First Stephora Avenue,
Inc.; $157,329.05 IN FUNDS SEIZED,
from United Commercial Bank
Account No. 63599914, in the
name of Alexandria Investment,
LLC; $174,315.16 IN FUNDS SEIZED
from Wilshire State Bank Account
No. 3219380, in the name of Se
Young Kim; 2004 MERCEDES BENZ 
CL500, one; 2002 MERCEDES BENZ
S500, one; 1990 FERRARI 550
MARANELLO, one; 2003 LANDROVER
RANGE ROVER, one; 2002 PORSCHE
BOXSTER, one; 2002 TOYOTA
TACOMA PICKUP TRUCK, one; 1999
PORSCHE CARRERA, one VARIOUS
MISCELLANEOUS FURNITURE AND
HOUSEHOLD ITEMS,
Defendants.

KIM v. REAL PROPERTY 14057
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
CHRISTOPHER KIM, a/k/a KYUNG
JOON KIM, KJ KIM and CHRIS KIM;
BORA LEE; SE YOUNG KIM; YOUNG
AI KIM; ERICA M. KIM; FIRST
STEPHORA AVENUE, INC.;
ALEXANDRIA INVESTMENT, LLC,
Claimants-Appellees,
v. No. 06-56393
REAL PROPERTY LOCATED AT 475 D.C. Nos.
MARTIN LANE, BEVERLY HILLS  CV-04-02788-ABC
CALIFORNIA, Real Property located CV-04-03366-ABC
at, a/k/a Seal A; 924 NORTH CV-05-03910-ABC
BEVERLY DRIVE, BEVERLY HILLS,
CALIFORNIA, Real Property located
at, a/k/a/ Seal A; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-844548-6 IN
THE NAME OF ALEXANDRIA
INVESTMENT, LLC; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-922787-3 IN
THE NAME OF ERICA MIHAE KIM;

14058 KIM v. REAL PROPERTY
$956,525.06 IN FUNDS SEIZED, 
from United Commercial Bank
Account No. 63600084, in the
name of First Stephora Avenue,
Inc.; $157,329.05 IN FUNDS SEIZED,
from United Commercial Bank
Account No. 63599914, in the
name of Alexandria Investment,
LLC; $174,315.16 IN FUNDS SEIZED
from Wilshire State Bank Account
No. 3219380, in the name of Se
Young Kim; 2004 MERCEDES BENZ 
CL500, one; 2002 MERCEDES BENZ
S500, one; 1990 FERRARI 550
MARANELLO, one; 2003 LANDROVER
RANGE ROVER, one; 2002 PORSCHE
BOXSTER, one; 2002 TOYOTA
TACOMA PICKUP TRUCK, one; 1999
PORSCHE CARRERA, one VARIOUS
MISCELLANEOUS FURNITURE AND
HOUSEHOLD ITEMS,
Defendants.

KIM v. REAL PROPERTY 14059
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
CHRISTOPHER KIM, a/k/a KYUNG
JOON KIM, KJ KIM and CHRIS KIM;
BORA LEE; SE YOUNG KIM; YOUNG
AI KIM; ERICA M. KIM; FIRST
STEPHORA AVENUE, INC.;
ALEXANDRIA INVESTMENT, LLC,
Claimants-Appellees,
and
OPTIONAL CAPITAL, INC., a/k/a No. 07-55653
OPTIONAL VENTURES,
Claimant, D.C. Nos.
v.  CV-04-02788-ABC
CV-04-03386-ABC
REAL PROPERTY LOCATED AT 475 CV-05-03910-ABC
MARTIN LANE, BEVERLY HILLS OPINION
CALIFORNIA, Real Property located
at, a/k/a Seal A; 924 NORTH
BEVERLY DRIVE, BEVERLY HILLS,
CALIFORNIA, Real Property located
at, a/k/a/ Seal A; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-844548-6 IN
THE NAME OF ALEXANDRIA
INVESTMENT, LLC; ALL FUNDS IN
CREDIT SUISSE PRIVATE BANKING
ACCOUNT NO. 0251-922787-3 IN
THE NAME OF ERICA MIHAE KIM;

14060 KIM v. REAL PROPERTY
$956,525.06 IN FUNDS SEIZED, 
from United Commercial Bank
Account No. 63600084, in the
name of First Stephora Avenue,
Inc.; $157,329.05 IN FUNDS SEIZED,
from United Commercial Bank
Account No. 63599914, in the
name of Alexandria Investment,
LLC; $174,315.16 IN FUNDS SEIZED
from Wilshire State Bank Account
No. 3219380, in the name of Se
Young Kim; 2004 MERCEDES BENZ 
CL500, one; 2002 MERCEDES BENZ
S500, one; 1990 FERRARI 550
MARANELLO, one; 2003 LANDROVER
RANGE ROVER, one; 2002 PORSCHE
BOXSTER, one; 2002 TOYOTA
TACOMA PICKUP TRUCK, one; 1999
PORSCHE CARRERA, one VARIOUS
MISCELLANEOUS FURNITURE AND
HOUSEHOLD ITEMS,
Defendants.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
June 9, 2008—Pasadena, California
Filed October 3, 2008
Before: Stephen S. Trott, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Thomas
KIM v. REAL PROPERTY 14063
COUNSEL
John E. Lee and Monica E. Tait, Assistant United States
Attorneys, Los Angeles, California, for the plaintiff-appellant-
cross-appellee.
14064 KIM v. REAL PROPERTY
Ralph Rogari, Rehm & Rogari, Los Angeles, California; Wil-
liam K. Mills and Michael K. Zweig, Parker Mills Morin
LLP, Los Angeles, California, for the claimants-appellants.
Eric S. Honig, Law Office of Eric Honig, Marina Del Rey,
California, for the claimants-appellees-cross-appellants.
OPINION
THOMAS, Circuit Judge:
This consolidated appeal requires us to decide, inter alia,
whether the Civil Asset Forfeiture Reform Act of 2000
(“CAFRA”) permits district courts to authorize ex parte
extensions of the deadline to file civil forfeiture complaints.
We hold that it does. We further hold that, in the event of a
dismissal of a civil forfeiture complaint by the court, a district
court retains jurisdiction to adjudicate competing claims of
ownership over the defendant property.
This case arises out of acts of fraud allegedly masterminded
by Christopher Kim (“Kim”) on two South Korean corpora-
tions, DAS Corporation (“DAS”) and Optional Capital, Inc.
(“Optional”).1 According to the complaint, Kim, a United
States citizen working in South Korea, fraudulently obtained
control over a South Korean corporation that Kim renamed
Optional Ventures Korea, Inc. Kim then allegedly embezzled
millions of dollars from this corporation, transferred the funds
into bank accounts in the United States, and used the money
to acquire the various assets at issue in this appeal.
1
The issues addressed in this appeal arise out of the district court’s
orders dismissing the government’s civil forfeiture complaint and releas-
ing the defendant properties to Kim and his co-claimants. Accordingly, we
“accept as true all well-pleaded facts in the complaint and construe them
in the light most favorable to the nonmoving party.” See Watson v. Weeks,
436 F.3d 1152, 1157 (9th Cir. 2006).
KIM v. REAL PROPERTY 14065
The Republic of Korea requested that the United States
extradite Kim. As a result of the extradition request and a sub-
sequent investigation, the United States seized more than $1
million in three U.S. bank accounts along with six vehicles in
May 2004 (“the May 2004 properties”). The FBI sent timely
notice to the interested parties of the government’s seizure of
and intent to administratively forfeit those properties pursuant
to 18 U.S.C. § 983(a)(1)(A)(i).
Kim, Erica Kim, Bora Lee, and Kim’s parents Se Young
Kim and Young Ai Kim filed timely claims contesting the
forfeiture. Erica Kim filed additional claims on behalf of First
Stephora Avenue, Inc. and Alexandria Investments, LLC.2
Because it was still investigating Kim’s fraud, the government
filed an ex parte application for an extension of time to file
its civil forfeiture complaint, pursuant to 18 U.S.C.
§ 983(a)(3)(A). Judge Dale S. Fischer granted the application,
extending the filing deadline for another ninety days. Judge
Fischer granted the government two more ninety day exten-
sions, also upon the government’s ex parte application. Each
time, the government based its requests on the fact that its
investigation was still ongoing. As a result, it eventually
seized other assets in April 2005.
In May 2005, the government filed its complaint for forfei-
ture of the May 2004 properties along with two Credit Suisse
bank accounts in the name of Erica Kim and First Stephora
Avenue, Inc., a seventh vehicle, and various pieces of furni-
ture and household items. The Kim Claimants then filed veri-
fied statements of interest contesting the forfeiture of all the
defendant assets. Optional and DAS, a second alleged corpo-
rate victim of Kim’s fraud, also filed verified claims to the
property. In addition, Optional filed an answer to the com-
plaint. The case involving the May 2004 properties was then
2
We refer to Kim, Erica Kim, Bora Lee, Se Young Kim, Young Ai Kim,
First Stephora Avenue, Inc., and Alexandria Investments, LLC, collec-
tively as “the Kim Claimants.”
14066 KIM v. REAL PROPERTY
transferred to Judge Audrey B. Collins and consolidated with
two related civil forfeiture cases involving real property
seized from the Kim Claimants.
The Kim Claimants filed a motion to dismiss the complaint
as to the May 2004 properties because the government had
not timely filed the complaint. The district court granted the
Kim Claimants’ motion to dismiss. The district court also
ruled that claimants DAS and Optional had standing as vic-
tims of Kim’s alleged fraud, and thus deferred ruling on the
disposition of the defendant property. Subsequently, the dis-
trict court held that, following its Rule 12(b)(6) dismissal of
the government’s forfeiture complaint, it no longer had juris-
diction to adjudicate competing claims to the dismissed prop-
erties. Thus, the court granted the Kim Claimants’ motion for
an order releasing the May 2004 properties. DAS, Optional,
and the government timely appealed.3
I
[1] The Kim Claimants had standing to move for the dis-
missal of the government’s complaint, an issue we review de
novo. United States v. 5208 Los Franciscos Way, 385 F.3d
1187, 1190 (9th Cir. 2004). To demonstrate Article III stand-
ing in a civil forfeiture action, a claimant must have “a suffi-
cient interest in the property to create a case or controversy.”
Id. at 1191. This burden is not a heavy one, at least at the ini-
tial stages of a forfeiture suit. Id. A “claimant need demon-
strate only a colorable interest in the property, for example, by
showing actual possession, control, title, or financial stake.”
Id. To do so at the motion to dismiss stage, “a claimant must
allege that he has an ownership or other interest in the for-
feited property.” United States v. $191,910.00 in U.S. Cur-
3
This opinion disposes of the following appeals only: Nos. 06-56158,
06-56168, 06-56393, and 07-55653. We address the remaining related
cases, which were formerly consolidated for the purposes of oral argu-
ment, in an accompanying memorandum disposition.
KIM v. REAL PROPERTY 14067
rency, 16 F.3d 1051, 1057 (9th Cir. 1994), superseded on
other grounds as stated in United States v. $80,180.00 in U.S.
Currency, 303 F.3d 1182, 1184 (9th Cir. 2002). In their plead-
ings, the Kim Claimants specifically alleged an ownership
interest in the May 2004 properties, which was sufficient at
the initial stages of the litigation to establish that they had
standing to challenge the civil forfeiture action. Thus, the dis-
trict court did not err in permitting the Kim Claimants to
move for the release of the May 2004 properties.
II
We have jurisdiction to consider the government’s appeal
relating to the district court’s dismissal of the civil forfeiture
complaint because, contrary to the assertions of the Kim
Claimants, the government timely filed its notice of appeal.
We review the timeliness of a notice of appeal de novo. See
In re Rains, 428 F.3d 893, 904 (9th Cir. 2005).
[2] The Kim Claimants argue that we do not have jurisdic-
tion to consider the government’s appeal of the district court’s
dismissal of the forfeiture complaint because the government
filed, and then voluntarily dismissed, its first notice of appeal.
However, the government’s original notice of appeal was of
an interlocutory order, which did not dispose of the entire
case. See Duke Energy Trading & Mktg., LLC v. Davis, 267
F.3d 1042, 1048 (9th Cir. 2001) (noting that a “ ‘final deci-
sion’ . . . ‘ends the litigation on the merits and leaves nothing
for the court to do but to execute the judgment’ ” (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978))).
Because “an interlocutory appeal is permissive, not mandato-
ry,” the government was not obligated to appeal the district
court’s dismissal of its complaint before the court issued its
final order in the case. See Adamian v. Jacobsen, 523 F.2d
929, 931 (9th Cir. 1975). On appeal of a final judgment, “the
interlocutory order merges in the final judgment and may be
challenged in an appeal from that judgment.” Baldwin v. Red-
wood City, 540 F.2d 1360, 1364 (9th Cir. 1976). Thus, the
14068 KIM v. REAL PROPERTY
government’s notice of appeal was timely filed, and we have
appellate jurisdiction over the appeal.
III
After careful review of the civil forfeiture statute, we con-
clude that a court is authorized to grant ex parte extensions of
the deadline to file civil forfeiture complaints. In order to
resolve this issue of statutory interpretation, “ ‘we look first
to the plain language of the statute, construing the provisions
of the entire law, including its object and policy, to ascertain
the intent of Congress.’ ” United States v. Mohrbacher, 182
F.3d 1041, 1048 (9th Cir. 1999) (quoting Northwest Forest
Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)).
[3] Under CAFRA, the government has sixty days after
seizing property to send written notice to interested parties. 18
U.S.C. § 983(a)(1)(A). Once the notice is sent, claimants have
a limited time to file a claim identifying the specific property
being claimed and stating the claimant’s interest in such prop-
erty. Id. § 983(a)(2). If a claim is filed, the government then
has ninety days from the date the claim was received by the
seizing agency to file a civil complaint, obtain a criminal
indictment that includes an allegation that the property is sub-
ject to forfeiture, or both. Id. § 983(a)(3)(A) & (B). If the gov-
ernment does not do so by the deadline, and the property is
not returned to the claimant,4 the civil forfeiture of the prop-
erty in connection with the particular underlying offense is
forever barred. Id. § 983(a)(3)(B). The ninety day period may
be extended, however, for good cause by the court. Id.
§ 983(a)(3)(A).
Specifically, 18 U.S.C. § 983(a)(3)(A) provides that:
4
The government also has the option of returning the property pending
the filing of a complaint. 18 U.S.C. § 983(a)(3)(A).
KIM v. REAL PROPERTY 14069
Not later than 90 days after a claim has been filed,
the Government shall file a complaint for forfeiture
. . . or return the property pending the filing of a
complaint, except that a court in the district in which
the complaint will be filed may extend the period for
filing a complaint for good cause shown or upon
agreement of the parties.
[4] Section 983(a)(3)(A) neither expressly permits nor pro-
hibits ex parte extensions of time. Therefore, it is necessary
to look to the statute as a whole for context. See Carvajal v.
United States, 521 F.3d 1242, 1248 (9th Cir. 2008) (citing
Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 880
(9th Cir. 2001) (en banc)); see also Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995) (noting that statutes “should not be
read as a series of unrelated and isolated provisions”); United
States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1167
(9th Cir. 2008) (noting that the plain language of a statute
must be interpreted by examining “the provisions of the entire
law”).
[5] The first relevant subsection, § 983(a)(1)(C), allows the
government to obtain an extension of time to send notices of
civil forfeiture to interested parties. The subsection authorizes
a district court to extend the original sixty day deadline for
sending written notice merely “[u]pon motion by the Govern-
ment.” 18 U.S.C. § 983(a)(1)(C). As with § 983(a)(3)(C), the
subsection is silent as to whether the government may move
for such an extension on an ex parte basis. However, there is
little doubt that Congress intended to authorize ex parte appli-
cations: a contrary interpretation would require the govern-
ment to notify the interested parties—defeating the very
purpose of the provision. Thus, although § 983(a)(1)(C) does
not contain express authorization for ex parte applications for
extensions of time to send written notice, one may reasonably
infer that Congress intended to authorize them.
[6] Similarly, if the government could not obtain an ex
parte extension under § 983(a)(3)(A), the government would
14070 KIM v. REAL PROPERTY
have to publicly disclose why it wants to delay openly and
fully litigating the forfeiture of the property. If the reason for
delay is to allow the government to complete an ongoing
covert investigation, forcing disclosure would require the gov-
ernment to reveal information about who else is being investi-
gated or what other property is being targeted for seizure. So
while allowing ex parte extensions under § 983(a)(1)(C)
ensures the government does not tip off owners of seized
property they are being investigated, allowing them under
§ 983(a)(3)(A) ensures that the government does not disclose
the broader reach of a covert investigation. The government’s
specific purpose for needing an ex parte extension in both sit-
uations is slightly different, but the underlying policy ratio-
nale is the same: requiring the government to openly seek an
extension would force it to reveal sensitive information that
would put some ongoing investigations in jeopardy. Con-
gress’ silence in § 983(a)(1)(C) therefore supports the conten-
tion that an explicit authorization of ex parte applications in
§ 983(a)(3)(A) is unnecessary.
[7] The other provision of § 983 addressing government
applications for judicial relief prior to the commencement of
a civil action is § 983(j)(1)(B). That provision, unlike
§ 983(a)(3)(A) and § 983(a)(1)(C), includes an express notice
requirement. Specifically, § 983(j)(1)(B) provides that prior to
the filing of a forfeiture complaint, “[u]pon application of the
United States, the court may enter a restraining order or
injunction . . . if after notice to persons appearing to have an
interest in the property and opportunity for such a hearing, the
court determines that” certain enumerated conditions are met.
Id. § 983(j)(1)(B) (emphasis added). This explicit notice
requirement indicates that Congress did not view the mere
absence of express authorization for ex parte applications as
sufficient to impose a notice requirement on the government.
Thus, we should not infer the existence of an implicit notice
requirement in § 983(a)(3)(A). Had Congress wished to
impose a notice requirement, it knew how to do so expressly.
See, e.g., Ctr. for Biological Diversity v. U.S. Fish & Wildlife
KIM v. REAL PROPERTY 14071
Serv., 450 F.3d 930, 939 (9th Cir. 2006); Boudette v. Bar-
nette, 923 F.2d 754, 756-57 (9th Cir. 1991) (noting that the
expressio unius est exclusio alterius canon of statutory inter-
pretation “creates a presumption that when a statute desig-
nates certain . . . manners of operation, all omissions should
be understood as exclusions”).
Another subsection of CAFRA does specifically authorize
the government to apply to a court for an ex parte order prior
to the filing of a complaint. See 18 U.S.C. § 981(b)(4)(A).
That subsection states that:
If any person is arrested or charged in a foreign
country in connection with an offense that would
give rise to the forfeiture of property in the United
States . . . the Attorney General may apply to any
Federal judge or magistrate judge . . . for an ex parte
order restraining the property subject to forfeiture for
not more than 30 days, except that the time may be
extended for good cause shown[.]
Id.The use of the term “ex parte” in this context is necessary,
because § 983(j)(1)(B) imposes an express notice requirement
when the government applies for a restraining order prior to
the filing of the complaint. Section 981(b)(4)(A) carves out a
narrow exception to this notice requirement when providing
such notice would be unduly burdensome due to the property
owner’s presence in a foreign country and possible incarcera-
tion there. Rather than creating a presumption that ex parte
applications are permitted only where Congress has expressly
authorized them, the use of the term “ex parte” in
§ 981(b)(4)(A) indicates a narrow exception to an explicitly
created notice requirement.
The other uses of the term “ex parte” in CAFRA provisions
likewise fail to indicate that the absence of the term demon-
14072 KIM v. REAL PROPERTY
strates congressional disapproval for ex parte applications.
The term appears three other times, in subsections that set out
procedures subsequent to the filing of the forfeiture com-
plaint.
First, the term appears in § 983(f)(4), which authorizes the
government to submit ex parte evidence to the district court
“in appropriate cases . . . in order to avoid disclosing any mat-
ter that may adversely affect an ongoing criminal investiga-
tion or pending criminal trial.” 18 U.S.C. § 983(f)(4). Explicit
authorization for ex parte submissions is necessary because
Federal Rule of Civil Procedure 5(a) ordinarily requires all
court filings to be “served on every party.” Indeed, it is highly
unusual in our system of law for a party to have to respond
to evidence she cannot see. See generally Hamdan v. Rums-
feld, 126 S. Ct. 2749, 2786-87 (2006). This same distinction
applies to § 981(g)(5), which authorizes the use of ex parte
evidence to support the government’s motion for a stay of a
civil forfeiture proceeding where it “may adversely affect an
ongoing criminal investigation.” 18 U.S.C. § 981(g)(5).
Finally, in § 985(d)(1)(B)(ii), the term “ex parte” is used to
codify existing case law involving seizures of real property.
See United States v. James Daniel Good Real Property, 510
U.S. 43, 62 (1993) (invalidating ex parte seizure of real prop-
erty without notice and a hearing absent exigent circum-
stances). Thus, the term “ex parte” was specifically needed
for clarity.
[8] In sum, when we examine the structure and purpose of
the statute, we conclude that a district court may issue exten-
sions of time in which to file a complaint based on an ex parte
government application. There is nothing in the statute that
prohibits the practice, and to hold otherwise would thwart one
of the objects of the statute by forcing the government to
reveal when an investigation that led to an initial seizure of
property is ongoing and has a broader scope than might be
apparent from the initial seizure. The inclusion of restrictions
KIM v. REAL PROPERTY 14073
on ex parte applications in other sections and the absence of
any such restriction in the portion of the statute under consid-
eration here buttress our conclusion.
The Kim Claimants argue that legislative history supports
their position. Where, as here, we resolve a question of statu-
tory interpretation by examining the plain language of the
statute, its structure, and purpose, our “judicial inquiry is
complete,” and we need not consult a statute’s legislative his-
tory. Campbell v. Allied Van Lines, Inc., 410 F.3d 618, 622
(9th Cir. 2005) (internal quotation marks omitted); see also
Hata v. United States, 23 F.3d 230, 233 n.3 (9th Cir. 1994).
This principle of statutory construction is especially true
when, as here, “legislators’ published statements do not
squarely address the question presented.” Oregon v. Ashcroft,
368 F.3d 1118, 1136 (9th Cir. 2004). An examination of
CAFRA’s legislative history provides no definitive guidance
on the issue before us. See Stefan D. Cassella, The Civil Asset
Forfeiture Reform Act of 2000: Expanded Government For-
feiture Authority and Strict Deadlines Imposed on All Parties,
27 J. Legis. 97, 101 (2001) (describing genesis and eventual
passage of H.R. 1658 in both House and Senate).
[9] Accordingly, we conclude from an examination of the
statutory language and its structure that courts have the
authority to grant ex parte applications for time extensions
under CAFRA. Therefore, the district court erred in dismiss-
ing the government’s complaint as to the May 2004 properties.5
5
Although we hold that district courts may authorize ex parte extensions
of time in which to file the forfeiture complaint, we do not consider
whether “good cause” was demonstrated here, because the parties did not
sufficiently raise the issue before the district court. See In re E.R. Ferget,
Inc., 887 F.2d 955, 957 (9th Cir. 1989) (noting that appellate courts will
not consider an argument unless it has been “raised sufficiently for the
trial court to rule on it”). Furthermore, we also decline to consider whether
there is a limit to how many ex parte extensions the government may
obtain since that issue was not presented to us on this appeal.
14074 KIM v. REAL PROPERTY
IV
Even assuming the district court properly dismissed the
government’s complaint as to the May 2004 properties, we
conclude that it nonetheless retained jurisdiction to adjudicate
the competing claims to the property.
[10] A civil forfeiture proceeding is an action in rem. See
Republic Nat’l Bank of Miami v. United States, 506 U.S. 80,
84 (1992); United States v. Approximately $1.67 Million, 513
F.3d 991, 996 (9th Cir. 2008). In rem jurisdiction is obtained
“ ‘by arrest under process of the court.’ ” United States v.
2,164 Watches, More or Less, Bearing a Registered Trade-
mark of Guess?, Inc., 366 F.3d 767, 771 (9th Cir. 2004)
(quoting Alyeska Pipeline Serv. Co. v. The Vessel Bay Ridge,
703 F.2d 381, 384 (9th Cir. 1983)). The parties do not dispute
that the district court properly obtained in rem jurisdiction
over the May 2004 properties.
Under this analysis, the question would then become, hav-
ing once properly obtained in rem jurisdiction over the dis-
puted properties, could the district court adjudicate ownership
of the properties after it dismissed the government’s civil for-
feiture complaint? Application of the traditional principles
and purposes of in rem jurisdiction provide an affirmative
answer.
In rem actions are generally considered proceedings
“against all the world.” Restatement (Second) of Judgments
§ 6 cmt. a (1980) (internal quotation marks omitted). “In this
type of proceeding, the court undertakes to determine all
claims that anyone has to a thing in question.” Id. The
Supreme Court has described in rem forfeiture proceedings as
legal fictions “developed primarily to expand the reach of the
courts and to furnish remedies for aggrieved parties, not to
provide a prevailing party with a means of defeating its adver-
sary’s claim for redress.” Republic Nat’l Bank, 506 U.S. at 87(citations omitted).
KIM v. REAL PROPERTY 14075
[11] Applying the traditional view of the purpose and reach
of in rem proceedings therefore indicates that the district court
retained jurisdiction to determine ownership of the May 2004
properties following the court’s dismissal of the government’s
complaint. Indeed, the court had not only the jurisdiction but
the duty to resolve the parties’ competing claims to the res.
To conclude otherwise would do violence to “the ‘general
principle’ ” in in rem forfeiture actions “ ‘that jurisdiction,
once vested, is not divested.’ ” Id. at 85 (quoting Chief Justice
Marshall, sitting as Circuit Justice in United States v. The Lit-
tle Charles, 26 F. Cas. 979 (No. 15,612) (CC Va. 1818)).
The Fourth Circuit confronted a similar question in the con-
text of a voluntary dismissal in In re Matthews, 395 F.3d 477(4th Cir. 2005).6 There, the Fourth Circuit held that the district
court lacked jurisdiction to resolve competing claims to one
6
Two other circuits also discuss this question, but do so only briefly. See
United States v. $515,060.42 in United States Currency, 152 F.3d 491,
501 n.9 (6th Cir. 1998); United States v. 414 Kings Highway, 128 F.3d
125, 127 (2d Cir. 1997). In both cases, the courts concluded that the dis-
trict court retained jurisdiction to dispose of the disputed property follow-
ing the dismissal of the forfeiture action. Both also supported their
conclusions by relying on the proposition that a “court may consider col-
lateral issues after an action is no longer pending.” $515,060.42, 152 F.3d
at 501 n.9 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-
95 (1990)); see also Kings Highway, 128 F.3d at 127 (citing Cooter &
Gell). As discussed by the Matthews court, see 395 F.3d at 481, neither
case is particularly persuasive here because Cooter & Gell held only that,
following a voluntary dismissal, courts retain the authority to resolve col-
lateral issues—issues that do not involve “a judgment on the merits of an
action,” such as attorney fees or sanctions. Cooter & Gell, 496 U.S. at
395-96. We agree with the Fourth Circuit that, “[b]y contrast, the determi-
nation of ownership interests in property seized in connection with a for-
feiture action goes to the heart of the merits of that action.” Matthews, 395
F.3d at 481. Moreover, Cooter & Gell involved a voluntary dismissal.
Even if the adjudication of ownership interests could reasonably be char-
acterized as a “collateral matter,” it is not clear that this limitation on juris-
diction would apply here, where the dismissal was on the merits. Thus,
although Kings Highway and $515,060.42 reach the same result, we do not
adopt their reasoning here.
14076 KIM v. REAL PROPERTY
of the thirteen original, handwritten copies of the Bill of
Rights after the government voluntarily dismissed its forfei-
ture action. Id. at 481-83. At the time of the voluntary dis-
missal, none of the three competing claimants had filed an
answer to the forfeiture complaint. Id. at 480. The Fourth Cir-
cuit held that “[o]nce the United States voluntarily dismissed
its forfeiture action, all proceedings in the action were termi-
nated, and the district court lacked the authority to issue fur-
ther orders addressing the merits of the case.” Id. at 482.
A voluntary dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(i) grants a plaintiff “ ‘an absolute right to
dismiss [ ] without prejudice’ . . . and requires no action on
the part of the court.” Duke Energy, 267 F.3d at 1049 (quoting
Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993)) (first
alteration in original). The filing “ ‘itself closes the file. There
is nothing the defendant can do to fan the ashes of that action
into life and the court has no role to play.’ ” Id. The effect of
the filing “ ‘is to leave the parties as though no action had
been brought.’ ” Id. (quoting Commercial Space Mgmt. Co. v.
Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999)). “Once the
notice of dismissal has been filed, the district court loses juris-
diction over the dismissed claims and may not address the
merits of such claims or issue further orders pertaining to
them.” Id.The Matthews court recognized this special, self-executing
effect of a Rule 41 voluntary dismissal, and discussed it at
length, citing our opinion in Duke Energy. 395 F.3d at 480-
83. Indeed, the Matthews court expressly premised its holding
on the fact that the dismissal ending the case was voluntary.
See id. at 482.
In this case, the district court—not the government—
dismissed the complaint.7 While the Matthews court’s reason-
7
Moreover, by the time the district court dismissed the government’s
complaint, the government could not have obtained a voluntary dismissal
had it wanted one, as Optional had already filed its answer. See Duke
Energy, 267 F.3d at 1048 (noting that a voluntary dismissal may only be
filed before a defendant has filed an answer).
KIM v. REAL PROPERTY 14077
ing may be persuasive in the context of a voluntary dismissal,
it is not applicable to cases in which a district court has acted
to dismiss a case on the merits, after the parties have appeared
and filed responsive pleadings. See, e.g., In re Marino, 181
F.3d 1142, 1144 (9th Cir. 1999) (noting that a dismissal with
prejudice, even when based on statute of limitations grounds
may be considered a dismissal on the merits); see also Suckow
Borax Mines Consol. v. Borax Consol., 185 F.2d 196, 205
(9th Cir. 1951). Outside of the unique procedural context of
a plaintiff exercising an absolute right of voluntary dismissal
under Rule 41(a)(1)(i), the traditional principles of in rem
jurisdiction remain paramount. See, e.g., Republic Nat’l Bank,
506 U.S. at 85-86 (reasoning that once jurisdiction is estab-
lished by seizure of the property, the court ordinarily main-
tains jurisdiction until the litigation ends).
[12] Such an outcome is also in accord with judicial effi-
ciency concerns. Where, as here, the government’s claim fails
on the merits, courts will not be obliged to dismiss competing
claimants’ allegations of ownership, just to have the claimants
initiate a separate suit. See, e.g., United States v. Martinson,
809 F.2d 1364, 1368 (9th Cir. 1987) (“[A] separate civil
action[ ] is inadequate in light of the time and expense
involved, particularly where the court considering the motion
already has jurisdiction over the matter.”); United States v.
Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) (noting, in the
context of a Fed. R. Crim. P. 41(e) hearing regarding disposi-
tion of seized property, that the fact that adequate civil reme-
dies exist “neither discharges the district court’s duties nor
disturbs its jurisdiction”) (cited with approval in Martinson,
809 F.2d at 1368-69).
[13] Therefore, we conclude that the district court retained
in rem jurisdiction over the property after it dismissed the
government’s complaint, and had jurisdiction to resolve the
remaining competing claims of interest in the property.
14078 KIM v. REAL PROPERTY
V
[14] The district court awarded attorney fees to the Kim
Claimants on the ground that they “substantially prevail[ed]”
in the civil forfeiture action with regard to the May 2004
properties. 28 U.S.C. § 2465(b)(1)(A). Because we reverse
the judgment of the district court, we vacate the district
court’s award of attorney fees to the Kim Claimants. See Baf-
fert v. Cal. Horse Racing Bd., 332 F.3d 613, 622 (9th Cir.
2003).
VI
In conclusion, we hold that 18 U.S.C. § 983(a)(3)(A)
authorizes district courts to grant ex parte extensions of time
in which to file a civil forfeiture complaint. We further hold
that district courts retain jurisdiction to adjudicate competing
claims to seized property even after the underlying civil for-
feiture action has been dismissed. The parties shall bear their
own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.