Jenkins v. United States ( 2023 )

Case: 22-1378 Document: 72 Page: 1 Filed: 06/28/2023
United States Court of Appeals
for the Federal Circuit
______________________
BRODRICK JAMAR JENKINS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1378
______________________
Appeal from the United States District Court for the
District of North Dakota in No. 3:19-cv-00188-ARS, Magis-
trate Judge Alice Senechal.
______________________
Decided: June 28, 2023
______________________
HAMPTON HUNTER BRUTON, Robinson, Bradshaw &
Hinson, P.A., Chapel Hill, NC, argued for plaintiff-appel-
lant. Also represented by LAWRENCE C. MOORE, III.
MELISSA HELEN BURKLAND, United States Attorney's
Office, United States Department of Justice, Fargo, ND, ar-
gued for defendant-appellee. Also represented by MEGAN
A. HEALY, JENNIFER KLEMETSRUD PUHL.
DANIEL WOOFTER, Goldstein, Russell & Woofter LLC,
Washington, DC, for amicus curiae Human Rights Defense
Center.
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2 JENKINS v. US
MATTHEW T. MARTENS, Wilmer Cutler Pickering Hale
and Dorr LLP, Washington, DC, for amici curiae Julia D.
Mahoney, Ilya Somin. Also represented by DONNA FARAG,
DOUGLAS GATES.
______________________
Before LOURIE, DYK, and STARK, Circuit Judges.
DYK, Circuit Judge.
Brodrick Jamar Jenkins seeks compensation under the
Fifth Amendment’s takings and due process clauses for the
federal government’s appropriation of his two vehicles. He
agrees that the government properly seized the vehicles
pursuant to a criminal investigation, but argues that the
government is liable for failing to return them after the
completion of the criminal investigation, transferring pos-
session of the cars to an impound lot, and selling them or
authorizing their sale by the impound lot. The district
court held that it did not have jurisdiction over the due pro-
cess claim and granted the government’s motion for sum-
mary judgment on the takings claim. We vacate the
district court’s grant of summary judgment on the takings
claim and remand for future proceedings. We affirm the
district court’s dismissal on the due process clause for lack
of jurisdiction, but without prejudice to a motion for leave
to amend.
BACKGROUND
At issue in this case are two automobiles owned by Mr.
Jenkins. He purchased one car, a 1987 Oldsmobile Cut-
lass, at the end of 2011 and the other, a 2001 Chevrolet
Tahoe, in 2012. Mr. Jenkins transferred title to the cars to
his mother, Stephanie Buchanan, a few months after pur-
chasing each car. However, Mr. Jenkins retained exclusive
use of both vehicles.
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JENKINS v. US 3
In the spring of 2011, the United States Drug Enforce-
ment Administration (“DEA”) began investigating Mr. Jen-
kins because of suspicions that he was involved in a drug
conspiracy. During the investigation, DEA seized the two
vehicles, and they were towed to Twin Cities Transport and
Recovery’s impound lot. The DEA put a “hold” on the vehi-
cles and obtained a search warrant for them. It is not en-
tirely clear what a “hold” is, but the parties appear to agree
that it had the effect of giving the government control over
the vehicles and preventing the impound lot from doing an-
ything with the vehicles, such as selling the cars without
the government’s authorization. The government obtained
a search warrant to search the cars after the seizure. The
search warrant was executed on October 24, 2012.
On April 10, 2013, in the District of North Dakota, Mr.
Jenkins pled guilty to a drug conspiracy charge and, on Oc-
tober 31, 2013, he was sentenced to 252 months of impris-
onment. On October 21, 2013, between Mr. Jenkins’ guilty
plea and his sentencing, the government contends that the
hold on the vehicles was released. 1
1 The only information in the record about the re-
lease of the hold comes from an affidavit of Renee Gardas,
the owner and manager of Twin Cities Transport and Re-
covery. The affidavit states that “the Bureau of Criminal
Apprehension for the State of Minnesota (“BCA”) released
holds on [the] two vehicles.” J.A. 104. However, the gov-
ernment’s brief states, in separate places, both that the
BCA released the hold and that the DEA released the hold.
The role of the BCA with respect to the vehicles is unclear.
In any event, “the United States is responsible for property
that is considered as evidence in a federal trial even if it is
in the actual possession of state officials.” United States v.
Bailey, 700 F.3d 1149, 1153 (8th Cir. 2012).
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4 JENKINS v. US
On October 21, the impound lot sent letters to the ad-
dress on file for Ms. Buchanan notifying her that the vehi-
cles could be “reclaim[ed] . . . upon payment of all the
[towing and storage] charges.” Joint Appendix (“J.A.”) 107;
111. According to her affidavit, Ms. Buchanan did not re-
ceive the letters because she no longer lived at the address
to which they were sent. No letter was addressed to Mr.
Jenkins, and he did not receive the letters addressed to Ms.
Buchanan. In the present proceeding, the magistrate judge
found that “[i]t is undisputed that the United States seized
Jenkins’ vehicles but did not notify Jenkins where the ve-
hicles were held or when the holds on the vehicles were re-
leased.” J.A. 9. However, in the underlying criminal case,
Mr. Jenkins wrote that he “was informed to go pick-up both
motor vehicles.” Mot. for Return of Seized Property at 1,
United States v. Jenkins, No. 3:12-cr-91 (D.N.D. Sept. 14,
2017), ECF No. 891. So the record is unclear as to whether
Mr. Jenkins received notice from a source other than the
United States that he could pick up his vehicles.
On February 12, 2014, the impound lot sent final no-
tices to Ms. Buchanan at the same address to which it had
sent the earlier letters, stating that “[f]ailure to . . . reclaim
the vehicle . . . within 10 days shall be deemed a waiver by
you of all right, title, and interest in the vehicle and consent
to the sale of the vehicle.” J.A. 109; 113. Ms. Buchanan
did not receive the letter because she was incarcerated. No
letter was sent to Mr. Jenkins. The impound lot sold the
2001 Tahoe on May 9, 2014, and the 1987 Cutlass on May
12, 2014, pursuant to the impound lot’s policy to sell or oth-
erwise dispose of vehicles that have been unclaimed for 45
days. The proceeds were retained by the impound lot, ap-
parently at least in part to satisfy towing and storage
charges.
About three years later, in the fall of 2017, Mr. Jenkins
filed a motion in his criminal case for the return of the cars
pursuant to Federal Rule of Criminal Procedure 41(g).
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JENKINS v. US 5
Rule 41(g) states: “A person aggrieved by an unlawful
search and seizure of property or by the deprivation of
property may move for the property’s return.” Fed. R.
Crim. P. 41(g). The United States responded that the cars
“are available for return upon arrangement by the defend-
ant and impound lot.” United States’ Resp. to Def.’s Mot.
for Return of Property, United States v. Jenkins, No. 3:12-
cr-91 (D.N.D. Aug. 18, 2017), ECF No. 890. The court dis-
missed Mr. Jenkins’ motion as moot in light of the govern-
ment’s indication that his property would be returned.
Soon after, Mr. Jenkins filed a motion for reconsidera-
tion again requesting return of the cars or, in the alterna-
tive, that he receive monetary compensation if the United
States were unable to find his property. Later, in January
2019, Mr. Jenkins filed a motion requesting monetary com-
pensation for the two cars in excess of $10,000. The court
held that it was unable to grant Mr. Jenkins’ request for
relief for two reasons: Rule 41 of the Federal Rules of Crim-
inal Procedure does not allow for monetary damages, and
the court lacked jurisdiction under the Tucker Act because
the claim was in excess of $10,000.
Mr. Jenkins then filed a civil action under the Little
Tucker Act, 28 U.S.C. § 1346(a)(2), in the same court that
heard his criminal case, the District of North Dakota. In
this action, Mr. Jenkins claimed that he had suffered a
physical taking of his vehicles and requested compensation
of $10,000 from the United States under the Fifth Amend-
ment’s takings and due process clauses for the sale of his
two vehicles. The United States moved to dismiss the com-
plaint for lack of jurisdiction. The case was assigned to a
magistrate judge, and the magistrate judge held that the
court did not have jurisdiction over Mr. Jenkins’ Fifth
Amendment due process claim on the theory that the Fifth
Amendment’s due process clause is not money mandating.
However, the magistrate judge found that it had jurisdic-
tion over Mr. Jenkins’ Fifth Amendment takings claim.
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6 JENKINS v. US
The magistrate judge found that Mr. Jenkins owned both
vehicles and that “for the purposes of determining stand-
ing, [Mr. Jenkins] has demonstrated, by a preponderance
of the evidence, a causal connection between his loss of the
vehicles and the United States’ conduct.” J.A. 8–9. The
government does not challenge the finding that Mr. Jen-
kins owned the vehicles.
The United States then moved for summary judgment
on the takings claim, arguing that if property is seized and
retained pursuant to the government’s police power, it is
not taken for purposes of the Fifth Amendment. The mag-
istrate judge granted the motion and dismissed Mr. Jen-
kins’ complaint because “[t]he Fifth Amendment takings
clause does not encompass a claim for just compensation
for property seized under governmental police power under
the facts of this case.” J.A. 23–24. However, the magis-
trate judge noted that this result was “seemingly inequita-
ble.” J.A. 23.
Mr. Jenkins appealed to the Eighth Circuit, and the
case was transferred to our court. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(2).
DISCUSSION
Both a grant of summary judgment and issues of juris-
diction are reviewed de novo. Metro. Prop. & Cas. Ins. Co.
v. Calvin, 802 F.3d 933, 937 (8th Cir. 2015); Aerolineas Ar-
gentinas v. United States, 77 F.3d 1564, 1572 (Fed. Cir.
1996).
This case presents difficult questions that can occur
when the government seizes property in connection with
criminal proceedings and retains the property after pro-
ceedings have concluded. Other circuits have addressed
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JENKINS v. US 7
some of these questions. 2 These issues are matters of first
impression for our court.
I
We first consider Mr. Jenkins’ takings claim. “When
the government physically acquires private property for a
public use, the Takings Clause [of the Fifth Amendment]
imposes a clear and categorical obligation to provide the
owner with just compensation.” Cedar Point Nursery v.
Hassid, 141 S. Ct. 2063, 2071 (2021). Claimants can pur-
sue a takings claim against the United States under the
Little Tucker Act when the amount at issue is not in excess
of $10,000. See Doe v. United States, 372 F.3d 1308, 1312
(Fed. Cir. 2004); 28 U.S.C. § 1346(a)(2).
2 See Frein v. Pa. State Police, 47 F.4th 247, 253 (3d
Cir. 2022) (holding that seizing property under a valid war-
rant does not insulate the government from takings liabil-
ity when the property is held after the end of the related
criminal proceeding); Conyers v. City of Chicago, 10 F.4th
704, 711–12 (7th Cir. 2021) (holding that there is no tak-
ings clause violation for the government’s disposal of seized
property that belonged to an arrested person if that prop-
erty had been abandoned); United States v. Hall, 269 F.3d
940, 943 (8th Cir. 2001) (suggesting that the government
may be liable for a Fifth Amendment taking if it loses pos-
session of property seized during a criminal investigation);
Mora v. United States, 955 F.2d 156, 159–60 (2d Cir. 1992)
(holding that the court has jurisdiction to provide an equi-
table remedy under what is now Rule 41(g) if the govern-
ment loses property seized during a criminal
investigation); United States v. Martinson, 809 F.2d 1364,
1368–69 (9th Cir. 1987) (same).
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8 JENKINS v. US
“When evaluating whether governmental action consti-
tutes a taking, a court employs a two-part test. First, the
court determines whether the claimant has identified a
cognizable Fifth Amendment property interest that is as-
serted to be the subject of the taking. Second, if the court
concludes that a cognizable property interest exists, it de-
termines whether the government’s action amounted to a
compensable taking of that interest.” Casitas Mun. Water
Dist. v. United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013).
Government action resulting in the transfer of property to
a third party may constitute a taking. Cedar Point
Nursery, 141 S. Ct. at 2071–72.
Here, the district court found Mr. Jenkins has a cog-
nizable property interest in the two vehicles. The govern-
ment does not dispute this on appeal. At issue is whether
the government’s action(s) amounted to a compensable tak-
ing of the vehicles.
A
The district court held that there was no takings liabil-
ity because the government’s action was a lawful exercise
of the police power. In this respect we think the district
court erred. To be sure, as the government points out, we
have consistently held that the government is not liable un-
der the takings clause for property seizure during a crimi-
nal investigation or for damage to such property in its
custody, even if the decrease in value renders the property
essentially worthless. 3 None of these cases, however,
3 See United States v. One (1) 1987 Cadillac Coupe
De Ville VIN 6D4799266999, 833 F.2d 994, 1000–01 (Fed.
Cir. 1987) (finding that there is no takings liability for the
reduction in the value of property while it is held by the
government pursuant to a validly instituted but ultimately
unsuccessful forfeiture action); AmeriSource Corp. v.
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JENKINS v. US 9
suggests or even considers whether the police power excep-
tion immunizes the government from liability for failing to
return property legally seized after the government’s need
to retain the property ends.
While the United States’ police power may insulate it
from liability for an initial seizure, there is no police power
exception that insulates the United States from takings li-
ability for the period after seized property is no longer
needed for criminal proceedings. In this respect, we agree
with the Third Circuit in Frein v. Pennsylvania State Police
that “[t]hough valid warrants immunize officers who stay
within their scope, they are not blank checks,” and once
criminal proceedings have concluded the government
“needs some justification” to retain the property without
compensation. 47 F.4th 247, 252–53 (3d Cir. 2022). Even
when the initial seizure and retention of property is
properly done pursuant to the police power, the police
power does not insulate the government from liability for a
taking if the property is not returned after the government
United States, 525 F.3d 1149, 1150–51 (Fed. Cir. 2008)
(finding no takings liability when drugs seized pursuant to
a criminal proceeding were worthless after being returned
because they were past their expiration date); Acadia
Tech., Inc. v. United States, 458 F.3d 1327, 1333 (Fed. Cir.
2006) (finding no takings liability when fans seized for po-
tential civil forfeiture were returned after they had become
obsolete and their only value was for scrap); Kam-Almaz v.
United States, 682 F.3d 1364, 1371–72 (Fed. Cir. 2012)
(finding no takings liability when a laptop seized pursuant
to a law enforcement investigation was returned after its
hard drive had failed while in government custody, which
deleted most of the business software on the laptop).
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10 JENKINS v. US
interest in retaining the property ceases. 4 The district
court erred in concluding that the legitimacy of the initial
seizure precluded liability for failure to return the prop-
erty.
B
Holding that the district court’s ground of decision was
erroneous does not dispose of this case, which presents dif-
ficult issues that cannot be resolved on the incomplete rec-
ord now before us.
There are four different government actions involved
here. As to the first, it is clear that the government in-
curred no takings liability. As to the others, we remand for
development of the more complete factual record needed to
properly address the legal issues presented.
First, there is the government’s action in seizing the
vehicles and retaining them until the point at which they
were no longer needed for the criminal investigation and
trial. Mr. Jenkins does not argue that there is takings lia-
bility for this action, and the cases discussed earlier make
clear that there is no such liability. The law is established
that there is no takings liability for the government’s tem-
porary seizure and holding of property in conjunction with,
and during the pendency of, a criminal case or civil forfei-
ture. See AmeriSource Corp. v. United States, 525 F.3d
4 There is, of course, no takings liability when the
government assumes ownership of property pursuant to
valid and lawful forfeiture proceedings. See Bennis v.
Michigan, 516 U.S. 442, 452 (1996). It is undisputed that
there was no forfeiture proceeding in this case.
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JENKINS v. US 11
1149, 1154 (Fed. Cir. 2008); Acadia Tech., Inc. v. United
States, 458 F.3d 1327, 1332 (Fed. Cir. 2006).
Second, there is the alleged government action in re-
taining the vehicles after they were no longer needed for
the criminal investigation and trial. The government
seems to admit that it had no interest in retaining the ve-
hicles after the hold on them was released on October 21,
and Mr. Jenkins does not contend that the government in-
terest ceased before that date. However, the government
maintains that it did not retain the vehicles but surren-
dered possession of the vehicles to the impound lot on Oc-
tober 21. This factual issue has not been addressed in the
district court and cannot be resolved on this record.
The government maintains that, whether or not it re-
tained the vehicles, any takings claim as to government ac-
tion in retaining the vehicles is barred by the existence of
a Rule 41(g) remedy. There is no takings liability for gov-
ernment retention of property if the party whose property
was seized fails to and is required to exhaust remedies pro-
vided by the federal government. In Knick v. Township of
Scott, the Supreme Court held that a property owner does
not need to exhaust state court remedies in order to bring
a federal Fifth Amendment takings claim. 139 S. Ct. 2162,
2167–68 (2019). But Knick made clear that a property
owner seeking compensation for a taking by the federal
government must exhaust alternate required federal rem-
edies before bringing a takings claim, stating that “Con-
gress—unlike the States—is free to require plaintiffs to
exhaust administrative remedies before bringing constitu-
tional claims.” Id. at 2173.
Here, Federal Rule of Criminal Procedure 41(g) pro-
vides a remedy for property owners deprived of their prop-
erty in a federal criminal proceeding. The rule states that
“[a] person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for the
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12 JENKINS v. US
property’s return.” Fed. R. Crim. P. 41(g). As we noted
earlier, Mr. Jenkins filed a Rule 41(g) motion in 2017, but
he failed to do so at a time when the government allegedly
still had possession of his vehicles through its alleged
agent, the impound lot. The question remains, however,
whether the Rule 41(g) remedy is a mandatory remedy.
Moreover, Mr. Jenkins contends that, as a practical mat-
ter, there was no Rule 41(g) remedy available to him be-
cause the government never notified him that the cars were
no longer needed for the criminal investigation or that the
cars were available for pickup. Given the ambiguity of the
record in this respect, here a remand to the district court is
needed to develop a fuller record on the issue of notice. By
remanding this issue to the district court, we do not decide
whether the Rule 41(g) remedy was required or unavaila-
ble, only that these legal issues are best addressed on a
more complete record.
Third, there is the government’s action in apparently
releasing the hold on the vehicles and allegedly transfer-
ring possession and control of the cars to the impound lot.
When and if the government surrendered possession or
control over the vehicles to the impound lot, there was no
longer a Rule 41(g) remedy because Rule 41(g) does not al-
low for monetary damages. 5 Jackson v. United States, 526
F.3d 394, 398 (8th Cir. 2008). If and when the government
ceased having possession of or control over the vehicles, it
5 There is one qualification to this general state-
ment. Some circuits have suggested that there is an equi-
table remedy under Rule 41, see Mora, 955 F.2d at 159–60;
Martinson, 809 F.2d at 1367–69, or a remedy under the
Federal Tort Claims Act, see Mora, 955 F.2d at 160; United
States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001), if the gov-
ernment fails to return property lawfully in its possession.
Neither party has addressed that possibility here, nor do
we.
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JENKINS v. US 13
appears that Mr. Jenkins’ only remedy (putting aside the
due process clause) would be a takings claim under the
Tucker Act or Little Tucker Act. See United States v. Hall,
269 F.3d 940, 943 (8th Cir. 2001). If so, there is no exhaus-
tion requirement for a takings claim once the government
ceased to have possession or control of the vehicles since
the Rule 41(g) remedy no longer existed.
The question remains whether the alleged transfer to
the impound lot after the government no longer required
the vehicles for the criminal proceeding was a taking. A
government transfer of private property in its possession
to a third party may create takings liability. See Cedar
Point Nursery, 141 S. Ct. at 2071–72. We think it is prem-
ature to address that question on this record. The parties
here differ in their interpretation of the facts in a number
of relevant respects. They differ as to whether there ever
was such a transfer. The government alleges that there
was a transfer when the hold was released on October 21.
Mr. Jenkins maintains that “[t]here is no record evidence
establishing that the DEA ever relinquished its hold on the
vehicles.” Appellant’s Reply Br. 13. The parties also differ
as to whether Mr. Jenkins ever received notice of the trans-
fer. There is also a related factual issue as to whether Mr.
Jenkins abandoned the vehicles which, as discussed below,
could preclude a takings claim. A remand is necessary to
develop the relevant facts.
Fourth and finally, there is the government’s alleged ac-
tion in selling the vehicles (through its alleged agent the
impound lot) or authorizing the sale of the vehicles by the
impound lot. 6 The government’s apparent theory here is
6 A recent Supreme Court case suggests that the re-
tention of the proceeds of the sale over and above any legal
charges (or, here, permitting a third party to retain such
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14 JENKINS v. US
that it had no responsibility for the impound lot’s actions
and that, in any event, Mr. Jenkins abandoned the vehi-
cles. 7 Mr. Jenkins, on the other hand, appears to argue the
impound lot acted as the government’s agent in selling the
cars, or at least that the government authorized the sale,
and that he had not abandoned the cars. Again these com-
peting theories raise factual issues requiring a more com-
plete record.
If the cars were abandoned by Mr. Jenkins, there can
be no takings liability for their sale. It is well established
that a person cannot be said to have been deprived of prop-
erty they have abandoned, and thus that the government
has no takings liability for taking abandoned property. See
Tyler v. Hennepin County., No. 22-166, slip op. at 13–14
(U.S. May 25, 2023); Texaco, Inc. v. Short, 454 U.S. 516,
526, 530 (1982); Cerajeski v. Zoeller, 735 F.3d 577, 581 (7th
Cir. 2013) (“Of course the state can take abandoned prop-
erty without compensation—there is no owner to compen-
sate.”).
The Seventh Circuit has dealt with a similar issue in
Conyers v. City of Chicago, 10 F.4th 704 (7th Cir. 2021). In
proceeds) itself presents a takings issue. See Tyler v.
Hennepin County, No. 22-166, slip op. at 5–6 (U.S. May 25,
2023).
7 In a citation of supplemental authority, Mr. Jen-
kins argues that “[t]he United States also never argued
abandonment, thus waiving the argument.” Citation of
Supplemental Authority at 2, Jenkins v. United States, No.
22-1378 (Fed. Cir. June 1, 2023), ECF No. 70. A 28(j) letter
is not an opportunity to make additional arguments not in
the briefing. Hall v. Shinseki, 717 F.3d 1369, 1373 n.4
(Fed. Cir. 2013). In any event, the government does not
necessarily waive an argument simply by failing to move
for summary judgment on that ground.
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JENKINS v. US 15
that case, the named plaintiffs were detained at Cook
County Jail and, pursuant to Chicago Police Department
policy, many of their personal effects were confiscated. Id.at 706–07. When the property was taken, plaintiffs re-
ceived a receipt that explained that property not recovered
within 30 days would be considered abandoned. Id. at 707.
Plaintiffs sued the city alleging that they received inade-
quate notice that the city would destroy their property if
not reclaimed within 30 days and that this inadequate no-
tice violated the takings clause of the Fifth Amendment.
Id. at 708.
The Seventh Circuit noted: “Nothing compels the City
to hold property forever. At the other end of the spectrum,
we can assume that a statutory declaration of abandon-
ment after only one day would be untenable. But where,
between a day and forever, does the Constitution draw the
line?” Id. at 711. The court held that the city’s 30-day
abandonment rule was not unconstitutional because “the
detainee knows exactly what has been taken from him and
when that confiscation occurred[,] how . . . to get his prop-
erty back and how quickly he must do so [and] . . . the hard-
copy Notice plainly states that ‘[i]f you do not contact the
[Chicago Police Department] to get your property back
within 30 days of the date on this receipt, it will be consid-
ered abandoned . . . and the forfeiture process will begin
. . . .’” Id. at 712 (emphasis omitted; second bracket in orig-
inal). 8 The potential failure to provide notice to Mr.
8 On appeal the government at various points relies
on compliance with state law notice requirements. Those
state law provisions—designed to govern seizures by state
authorities and the obligations of impound lots—do not af-
fect the constitutional claims.
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16 JENKINS v. US
Jenkins distinguishes this case from Conyers, but issues of
abandonment still remain.
II
We turn to the due process claim that is framed on ap-
peal as an illegal exaction claim. The theory is that an il-
legal exaction occurred when and if the government
transferred the cars to the impound lot. Mr. Jenkins’ prob-
lem is that while his pro se complaint generally alleged a
due process violation, it nowhere asserted an illegal exac-
tion theory. The district court did not err in dismissing this
due process claim for lack of jurisdiction. However, on re-
mand Jenkins may seek leave to amend to assert an illegal
exaction claim. We have no occasion to opine on such a the-
ory until the complaint is amended.
CONCLUSION
As to the takings claim, this case unhappily presents
numerous difficult questions that we reserve for the future.
For the moment, the grant of summary judgment is va-
cated, and the case is remanded for further proceedings
consistent with this opinion. As to the illegal exaction the-
ory, the jurisdictional dismissal is affirmed, but the case is
remanded to permit Mr. Jenkins to seek leave to amend.
AFFIRMED IN PART, VACATED AND REMANDED
IN PART
COSTS
Costs to appellant