please the court my name is jeff array and i'm representing the united states today i had knowledge of the outset that it's somewhat unusual for the united states to appeal from a judge tried case we do so today for  very unique reasons we neither challenge the factual findings of the district court more challenge the damage assessment which is one of the hotly contested issues at the trial today we challenge two of the legal decisions made by the court add to the conclusion of the trial that we believe reflected misapplication of two significant offenses under the f t c a discretionary function defense and the statute of limitations defense insofar as it requires present moment of a timely administrative claim with respect to discretionary function exception this court has many times dealt with the doct in its terms it's deceptively simple simply requiring that the government establish that there is no element of judgment or choice involved in a decision made by the government and that choice or judgment is the is grounded in social economic and political policy side to side being deceptively simple the devil's in the details in the application in this case however we think strongly that  particular decision at issue here was exactly the type of decision is protected under the strain function exception this case involved the seizure of three hundred and sixty four thousand dollars in one manual requires that when cash is seized it's to be expeditiously deposited into account the manual explains the reasons for that d some of which are quite obvious the most important being accounting  significant determination if we were pursuing the detained goods exception but for reasons of internal politics with india o j i was not authorized to raise that particular defense on appeal  revenue manual as i mentioned the general requirement is that cash is the extradition deposited for accountability for the protection of both the government agents who are accused of theft and protection of claimants or potential criminal defendants whose money is seized that is protected from anything happening and in this case pursuant to that general rule  agent jackson deposited these coins by way of a coin counting service provided by dunbar into an i r s account we do acknowledge that the internal revenue manual says that direction no further instruction and no further definition to an agent in the field as to when c's cash should be determined to be a collectible asset is our argument that rob jackson acted within his discretion in making the determination you're this is just meant your position is that he acted with discretion or that he it he had discretion to choose whether this was a collection or whether this was carrots that's correct in fact in this particular case there was some seize property coins in dollar bills that were in special plastic sleeves  negligent or at least that there is a fact question for a try or fact to determine as to whether or not that was negligence or not which is why the discretionary function exists to remove the question of negligence or not negligence from such decisions understanding the government agents in some circumstances need to be free to make those kinds of calls without nd guessing after the fact by a trier of fact but i do agree that there is an argument to be made that that was a negligent decision and and we i mean i'm not conceding it was negligence i don't i do think there is in fact question potentially with respect to that callings and if not after that ninety day period to return the money in this case the money was not return until april th teen well after the ninety days i agree that that was negligence but that negligence that particular negligence the failure to return the coaling or the cash i'm sorry it isn't not in self actionable here because the money was ultimately returned and the real issue that's being raised  in this appeal are the damages sustained allegedly by miss willis with respect to decision on september th to take the coins and convert them into cash a little cash was returned to them but i do agree that it was negligence or at least a failure to abide by the statute following the december th claim form from from miss willis and to not return the coins within the ninety day period which ended on march th two thousand and thirteen counsel can you help me with this that instead of the discretionary function exception i'm not even positive not to read in our case that i know what it means but it says th if a different decision is reached and if in fact d the i r s or any law enforcement agency can be nd guessed with respect to the decision they make upon seizure in this case will will just limit possibilities that exist if we're going to be concerned about the fact that these may be collectible assets as i said numerous bills have defects in them that might that might make them  valuable you could have scratch marks on a bill that an agent ignores and deposits and then a claim and come forward and say mickey mantle signed my by a dollar bill and this had tremendous collectible value to me the bottom line is in this particular situation the discretionary functional plies because important for an agent to feel comfortable in following the rule to expeditiously deposit these coins  and provide protection and necessary to not only the wilsons but to the agents themselves while having to worry about the fact that someone may nd guess that the statu situation but we do believe it does fit within the criteria of the discretionary function and in fact the internal revenue manual specifically says the rule was adopted for budgetary add and other other reasons that were a concern to the i r s in this case not the least of which would have been an extensive storage costs to have stored these coins for any significant period of time wires be in the way of of those kind of carry some on this kind of compliant well that the court is somewhat addressed that in prior cases and they don't allow for consideration of fiscal  concerns in every situation only when the agency has made it clear that in dopping the rule that the agency took that into account and in this case the internal revenue man you specifically say as one of the bases for adopting this rule or budgetary concerns which we believe in this particular case makes it appropriate to take that into account real briefly because i'd like to save a little bit of time with respect to the statute of limitations we're not disputing the essential facts found by the court including the fact that miss willis claims that she did not realize the coins were no longer in the physical possession of the started the process to get them back and that process included hiring an attorney filing paperwork with the i r s i'll just quickly say with respect to the question i was asked earlier even if we assume th was entitled to assume that did nice states would follow the law and that those coins were taken properly once she made her claim on december th two thousand and twelve united states had ninety days to return the coins we always did not return the coins within ninety days and we would argue that ninety day period triggered a two year statute of limitations for her to file a claim and even under that reading she missed the time to make a timely claim and we would argue that the statute of limitations would bar her claim and i will continue with rebuttal and save the rest of my time thank god i do you have one more question for you purely being conservative under missouri law d which determines the tort even though federal law determines the cruel a conversion and that's all that we have here is a conversion when that's all that's left can either be a wrongful conversion which we would argue occurs when the wrongful taking occurs and you know who took it or it can be a lawful taking in which case conversion begins to accrue after you've made demand and the coins have not been returned or the money has not been returned in this case we would argue under the most conservative approach would be an argument that we we legally took the coins they were entitled to make a claim and our possession of them became wrongful then ninety days after they made the claim but under either theory there ultimately administrative claim was not timely sly old thank you the court which the district court found meritorious the st issue which i think was properly brought up at the very beginning of mysteries question was why were these coins sees the reason these that changes things dramatically both on discretionary function test as well as on the stash and limitations it's because seizing something for evidence is an independent basis for the government to legally withhold or taint that property versus a criminal or civil forfeiture for cd so in this case as to the discretionary function there are multiple reasons why agent jackson had absolutely no discretion to deposit these coins the laws very clear and we are not in any disagreement as to a circuit precedent which clearly states that an agency policy strips govern employee government employees of discretion when it specifically provides a course of action for the employee to follow and this that agency policy is contained in the internal revenue manual which is hundreds of pages and very very detailed as you would expect coming from the i r s the i r s clearly tell these agents that there has to be a decision somebody is going to decide whether it's evidence or or a collectible or and sure somebody has got to make a decision that's that's the best the essence of discretion exactly and i'm so glad that you asked that just because the policy the internal revenue manual is very clear on this and essentially that decision needs to be made long before the seizure through something called with he's in or he just made a decision to deposit them now if any princes were planning was done when they would know he would know that these coins were a collectible asset and they were kept in and i would argue that under buckler your honor as well as appleby while there's elements of discretion like how to conduct procedure planning how to determine whether these are collectable or not in that precision planning process there may be elements of discretion there i would concede that but they cannot be wholly ignored applebee and buckler make it very clear that an officer or any these property will be limited and the counter to that is of course if there's no prisoners you're planning if it's a sloppy seizure ignore insisted they take the i r m and they throw it out the window cases like that this is what happens when there's no procedure planning is that they take property they claim it's for evidence even though they claim it's for evidence they've made a claim it's for evidence throughout the trial and the briefs by the united states completely ignore that the current and past policy specifically states that evidence any currency or past is used as evidence should not be deposited either so i mean that is precisely why the government claim that is what they say cases where is that true in drug cases as well i'm not a criminal defense lawyer but if they're using the cash as evidence particularly the case the arguable reason for evidence they have the money was claiming that some sort of money laundering that never came to effect and money laundering for evidentiary purposes be poured in to know when and where this these coins were purchased how they came about and this case these coins were all in sealed boxes that stamps from the banks on them and so the evidence of that was lost which i believe is precisely why the policy states what it using it whether there's the using it for evidence whether there's these you know for forfeiture all of that should be done prior to seizure or at the worst case do it immediately after just like the policy instead nothing was written down which was required and the policies were just completely ignored and agent jackson had absolutely no discretion to ignore iram policy as to the as to the statue limitations issue i mean as we can see from our discussion to this point and as the government previously argued the linchpin in this case is the big issue in this case is agent jackson's decision to deposit these coins destroyed their num question that kerry willis was completely unaware that this information was completely only within the knowledge of the i r s up until april th and april th scene when they finally said yes we will give timely proceeded see now this issue with the government once again ignoring all of their policy seven and not returning the coins after the forfeiture action was in when they were notified  the in the asset forfeiture policy manual for the d o j were states the seizure of property for evidence provides an independent basis for the continued physical possession of the property so as long as the government was claiming they were seizing this property is evidence that's an independent basis that they legally do have the property and once they legally have the property we do not have a conversion climb and still they no longer legally to that and once again the a cruel and the law is very clear on this as well as the staton case makes this very clear that a cruel is when you have to both know of the that is it the fact that they were keeping these coins for evidence which is why they claim they kept that's why they claim they didn't they were violating the other forfeiture policies because they say hey we're getting this for evidence we're investigating you we're going to file something against you some point but they never do the neighbor of two thousand and fifteen when there is counsel saying hey some clients have their stuff back they finally when they relinquish the property that's assuming ok we don't have any evidence or value for any more but there's no question throughout this case they've said they they took this property for evidence and restitution that's what they claimed the trial granted the trial court did not believe it i mean because there was no evidence of a crime and it they didn't really you know that their their actions were kind of inconsistent i mean it was just i mean i'm not gonna lie it was a sloppy from the get go it was sloppy up and down on how the willis's were treated in this case the i r m was essentially just clearly the policy says don't deposit but with these discretionary function as they are i get it to come save money for when agencies make these policy decisions but you know the counter to that is if we allow government agents to ignore the internal revenue manual you know do these sloppy investigations and sloppy forfeitures like this it's only going to create more like him and and realistically you know essentially immunizing this type of conduct when there's a time of the seizure that the seizure was solely for for picher purposes battling and that sort of why i was asking the question about your evidence issue because in light of that filing why didn't the claimant crew in as there was not evidence of any crime was forfeiture or saying hey we need to take it but then saying we're keeping it for evidence allows them to legally keep it forever there is no there is no way that i can go across the street from the springfield police department is no way i can go over there and take their i've they get to keep had evidence they get to seize that evidence and keep it in their storage unit until there's no longer an evidentiary value there is no legal to take this evidence from the government the government claims it's evidence they have a legal right to seize it and since they have that legal right to seize it our conversion claim does not accrue until one way to know the with respect to evidence the i or i or internal revenue manual is clear when cash is c s it can have independent evidence or a value in that maybe it's got cocaine residue or fingerprints on it but can also have value just in the fact the evidence cash will see in the latter you do not have to preserve the evidence it was not preserved in this case this was seized purely to so that later and you can testify this amount of money w fact by putting up and posting the forfeiture notice that we did under the statute there is no evidence or exception to that after thirty to after ninety days we would have had to return the money it would end the coins returned the coins and so that in fact was the outside most conservative trigger for the statute of limitations was ninety days after we perceive know the notice of the claim from used the money to pay bills because she said she needed the money she was being injured by being deprived of her property that is the very essence of the conversion claim we would ask that the judgment below