KING, District Judge:
On October 2, 1972, the Federal Aviation Administration (hereinafter "FAA") unilaterally determined that Aviation Contractors, Inc. (hereinafter "Aviation") had violated certain FAA regulations relating to helicopters.
On June 5, 1974, the district court denied the government's motion for summary judgment ordering Aviation to pay the $6,000 penalty. At the same time, the court granted Aviation's motion for the release of the $6,000 certificate of deposit on the ground that the helicopter for which it had been substituted had been seized without affording Aviation due process of law. It is with the latter aspect of the district court's decision that this appeal is concerned.
Preliminarily, we reject Aviation's contention that the district court's order was not a "final decision" within the meaning of 28 U.S.C. § 1291 and that therefore this court does not have jurisdiction to hear this appeal. As the first sentence of both the complaint and the district court's opinion make clear, this was an in rem action against the helicopter. The release of the helicopter (and the substituted security) ended the in rem action. See American Bank of Wage Claims v. Registry of the District Court of Guam, 431 F.2d 1215 (9th Cir. 1970), and Seabord & Caribbran Transport Corp. v. Hafen-Dampfschiffahrt A.G. Hapag-Hadac Seebaderdienst, 329 F.2d 538 (5th Cir. 1964). Aviation's argument that the FAA may now proceed to collect the $6,000 penalty, see 49 U.S.C.A. § 1473(b)(1), does not in any way defeat this court's jurisdiction.
Turning to the merits of this appeal, we agree with the district court that the procedure followed in effecting the seizure of the aircraft in this case denied Aviation due process of law.
On the other hand, the Supreme Court has also said that:
In its most recent opinion in this area, the Supreme Court left unclear whether the "hearing at some stage" approach of Mitchell or the "extraordinary situation" requirement of Fuentes should guide the courts in the future. See North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751. Fortunately, we need not choose between these approaches to resolve this case. Rather, we shall adopt still another approach utilized by the Supreme Court and determine the constitutionality of this seizure by comparing "the precise nature of the government function involved" with the "private interest that has been affected by governmental action". See Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
There is little that the government can offer to counterbalance the substantial private interest at stake in this case. It appears that the sole justification for the seizure was to facilitate the collection of the penalty sought by the FAA. There is almost no evidence in the record which detracts from the district court's conclusion that this seizure was not directly related to public safety considerations. In addition, the government's contention to the contrary is belied by the statutory bonding procedure. See 49 U.S.C. § 1473(b)(3). This procedure, which was utilized in this case, permits the aircraft to be reclaimed and put back into operation upon deposit of a bond by the claimant. We further note that the FAA has a wide range of powers to act quickly when air safety is in fact directly threatened. See 49 U.S.C. § 1429 (permitting ex parte revocation of air-worthiness certificate)
We are of the opinion that the government's interest in facilitating the collection of the $6,000 penalty is plainly insufficient to support the summary seizure of Aviation's helicopter. Cf. North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. 610, 95 S.Ct. 719. The government's interest in this case is not nearly as strong as it is in those situations in which prehearing seizures have been approved. See, e. g., Ewing v. Mytinger, supra, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed.2d 1088 (seizure of misbranded food); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed.2d 2030 (1947) (conservator may seize assets of failing bank); and North American Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure of contaminated foods). While in certain situations the Internal Revenue Service may utilize summary proceedings to ensure the collection of the internal revenue of the United States, see Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 738 (1931), we refuse to extend this rule to empower other governmental agencies to summarily take property as security for the eventuality that civil penalties must, in fact, be paid.
Such a rule would be particularly inappropriate in this case since there has been no showing of a "special need for very prompt action," to protect the government's interest. See Fuentes v. Shevin, supra, 407 U.S. at 91, 92 S.Ct. at 2000 and compare Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There is no allegation or other indication in the record that Aviation would not, or could not, pay any penalty assessed against it unless the helicopter was seized. The power of the FAA to proceed in personam to collect the penalty further diminishes the necessity of summary action. See 49 U.S.C. § 1473(b).
This seizure embodied none of the procedural protections which the Supreme Court has emphasized in determining the constitutionality of prehearing seizures. These protections were most clearly articulated in
In this case, the FAA executed the initial seizure without filing any papers with any court and without seeking the approval of any court officer, much less the approval of a judge. To make matters worse, the warrant of arrest which was issued one month after the initial seizure was not issued by a judge but by the court clerk. The bare affidavit filed by the U.S. Attorney on which the clerk's action was based merely alleged that a violation of the Federal Aviation Act had been committed; it was not possible to determine from the affidavit whether the U.S. Attorney's view was correct or whether the seizure was warranted. There was no requirement that a bond be posted by the government before the seizure was approved. Finally, the statute does not provide for a prompt post seizure hearing to determine whether there is good cause to continue the aircraft in government custody. Thus, in all important respects, the seizure in this case lacks the protections which the Supreme Court emphasized in Mitchell v. W. T. Grant, supra, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406.
For the reasons set forth above, the district court's order is affirmed.