the first case for today is two thousand and eighteen one zero eight zero one united states versus retail ready career center incorporated you may p wonderland flavor sounds familiar that's certainly the case here with the my client like many other innocent property owners has been deprived of its property and forced into an interim civil procedure in order to get it back chief justice marshall described a admiralty proceeding like this as a suit against the whole world in which the whole world or parties in the whole world is bound so the united states feels it can pick a fight with the whole world but no one else can throw any punches the government wants the benefits of bad will to practice without the downsides on the flip side my client has already suffered the downsides its business has been destroyed without trial without a hearing without an indictment without evidence without even the government being able to sta myself for the downsides not to get the benefit it ought to be able to file a counterclaim detain remedy for the wrongdoing that's occurred here that's what the law says that's what historic practice provides and that's what justice demand would start with what the law says twenty eight u s c twenty four sixty one b congress has expressed how it wants for sure we go says inst cases of seizures on land the forfeiture may be enforced seize some fishing boats lost the spanish government said hey you've incurred damages here please award them to us the spanish government one went up on appeal when the us supreme court said you come into court you're bound now it's not or apply it and it wasn't actually really essential to that case but arguably it creates a conflict with the sixth circuit and i would argue that what the first circuit did was actually dicta if you look at the facts of that case the government  truck a team forfeiture of the truck and on summary judgment i guess for the first time on appeal the the property owner says hey i had a phone in the truck in some other property i want that property back a claim for that property back and the court of appeal says well that the judgement doesn't affect any of the other property in the car so you're free to go and do that somewhere else or not armed anyway oh and by the way we're in this construct the syllogism to try to justify ignoring it and the syllogism doesn't follow right says ok united states brings a claim against property your claim against the property the government has brought a claim against you therefore there's not really claim to counter which adopted it should have been called a cross claim rather than a counter claim but this court all the courts in the country the rules of the east evan being example refer to such claims brought in around as counter claims so that's what i did and it's it's just one paragraph or reasoning one part of the reasoning says that rather than being dragged into the case as a defendant he meaning the the person who want the property back intervened as  claimant remind me and you were in this case did you intervene as a claimant under the current statutory regime it's not really called that under eighteen u s c ninety three it just says you know the if you claim interest the property you're entitled to come in right and it doesn't attach a label to whether that's intervention in the war or what exactly i mean it's not my point being when i read that in the first circuits opinion the question occurred to me as well when you intervene as a  wrong tense and purposes correct so i would think that a party can bring a counterclaim or cross claim or whatever you want to call it i would think so to your honor and we made that argument the brief that if you want to call us intervener which was certainly how courts characterize damages damage seizes the ship the ship owner says well you didn't pay me for the cargo sues the cargo owner that happens all the time and that nobody thinks that's problematic because of the way the claims are titled the first circuit reasoning just  want you to talk about course whatever you want to talk to us about but i have a feeling the government's going to want to talk about section twenty four sixty five and specifically b to a  says united states not be required to disgorge the value of any intangible benefits nor make any other payments to the claimant i guess the argument goes that you would be requesting the government to make payments in response to damages claim and so that's bar by the statute read your response to that yes your honor i have several responses to that the first is that you know be two obviously connects to be one and a right in twenty four sixty five  wo it says it preserves the historic practice for determining whether or not a seizure was reasonable or not the district court supposed to rule on that an issue or stick it one way or the other and then regardless of whether the district court determines it's is a list of the things you don't get for substantially prevailing you don't get any intangible benefits the government receives so if government agents or joyriding in the cars they seized which happens you don't get the benefit that those agents you know you don't get twenty four sixty five doesn't bar damages it leaves in place the regime for determining liability so a two and also calf or other added the two explicitly added a waiver of immunity in the federal for wrongful seizures so why would congress have added a procedure to get damages and a waiver of liability why would it have preserved the historic method for ascertaining liability if it was intended to eliminate that liability i don't require reading twenty four sixty five as inconsistent with the rest of what in your view you could bring in a regional lawsuit against the united states or whomever for damages c honor the one of the issues with that would be a bit difficult to adjudicate duplicate efforts right that you'd have to have same witnesses doing you know is actually a discovery a lot of same issues and you still have to wait or be part of the court determin reasonableness in this case so it doesn't make any sense to do them separately you'd want to do them together and that's typically how it is done in adult practice you know somebody is claiming that something was wrong we see is wants to tackle it there are a whole regime guided you have no problem with that no you know your honor the and you know that again this the statute twenty four sixty five a is something the court has to do in this case at the in this case is going to have to determine the reasonableness of the  be involved in that the only real difference is that there's a sort of administrative claims process that has to be done first where you send them a letter saying hey came in my damages and then they say no and then you file suit that would only be true for certain types of claims i'm not sure whether constitutional claims like i'm asserting are actually required to do that the courts of appeal are not entirely consistent on that and the statute creates a little bit of a wrinkle procedural issues if you do it separately one of the reasons for doing it this way is just a lot cleaner right rather than trying to figure out the agents that were involved and suing them personally and then substituting united states and you've already got the united states as a party bringing these claims involving these facts united states versus six hundred sixty two boxes of half a drain i think there are i think there are other district court cases out there where they've adopted banter petition but again nobody has actually argued what i'm arguing and read the copy of the statute in the counterclaims doesn't say anything about priests well it doesn't say anything about procedure at all the title of the the section attorneys fees cost in interest i would agree it doesn't asli say when about i think the context procedurally is the one right this is the things you do at the end when you're awarding you know the property back to the current or the property owner if the client claimant prevails give him attorney's  interest and don't give them anything else right that's that is the what the congress is trying to do is trying to give us certainty about what you get as a remedy for substantially prevailing i'm not asking for damages based on prevailing i'm a had the reasonable cause standard in the stuff that a reasonable cause and then what kaffir did was add b and mention be in a two and then b says you get interests you attorneys fees and we're going to not give you these other things just because you want right we're going to leave the the reason because liability regime in place we're going to add a waiver and in the f t c day that's what i think it did i don't think it was intended to eliminate the damages it was explicitly recogniz you discussed is statutorily barred by twenty eight u s c twenty four sixty five second no other civil forfeiture statute authorizes the use of counter claims and kaffir provides an adequate remedy to innocent owners third decades of civil forfeiture case law demonstrates that the claimant is not a party and may not bring counter claims and the admiralty cases that allow counter claims are not applicable here first looking at twenty eight u s c twenty four sixty five that statute clearly defines the universe of payments to be made by the united states in civil forfeiture cases and damages are not included first you have the plain language of the statute which you argue discussed you have the district of new jersey case there's also a ninth circuit case that was decided in two thousand and seven klunk which was cited and i prefer a different proposition but that case looks at the fact that twenty eight u s c twenty four sixty five does not allow for damages allegation was that the united states and seeking civil forfeiture of property was targeting a property owner because of his or her race and the property owner wanted to make that claim by way proceeding there are various revenues in which they can bring a separate proceeding first is a bit of ins claim that they could bring next is they could bring a claim under the f t c day but it's important to note that all of these need to occur after the forfeiture seed perceiving has concluded first looking at the waiver in the f t c way that was added by katherine it talks about that in order to bring a suit there has to be a property that was seized for forfeiture property that was not forfeited property that was not remitted or mitigated and that the claimant was not criminally convicted i think the second part of that test is important that the property was not forfeited here as that we are involved in ongoing forfeiture proceeding the claimant cannot show at this time  property was forfeited so that claim would need to be brought after the civil proceeding has concluded same with bevins it would make sense for them to bring the claim after the court has decided whether or not the certificate under twenty eight u s c twenty four sixty five issue begins however does not allow them to bring a claim against the united states and it's important to make that distinction because that's what they're requesting here your question a claim against the united states not against forum what i can tell you is that judge its water is currently very aware of what's going on on the criminal side of the case this case doesn't fall complex discovery issues that are currently being litigated in the district court in the civil case judge fitzwater recently granted a stay and i would ask the court to take judicial notice of docket to nineteen that or they could have to wait for years and years until the criminal investigations result i mean what you're saying yes your honor and potentially and courts have looked at this issue and they have decided that where there is an ongoing investigation that the court will have to determine and weigh the interests of the claimants versus the interests of the government this idea has been fully briefed and docket to which i would ask the court to take notice of that briefing mentions a case united states versus one million one hundred eleven thousand one hundred twenty dollars in u s currency it's honor there are multiple cases though in the district court where various delays of even years have been allowed there is one case in this briefing and i can't remember which case it is but in that case involved a twelve year back and forth criminal and civil cases unfortunately sometimes these do you take a while but it was can you tell me just as a practical matter i'm not asking about the ongoing criminal investigation but what can the claimant do in these proceedings in order i mean sure maybe the government will be able to prove its case fair enough but what can the claimant do in these proceedings to defend its rights yes your honor the claimant does have multiple remedies in these proceedings that they can use and the district court has various various avenues it can use in order to protect their interests first they can present innocent owner defense they can also file a motion to dismiss which they have done in this case the court has had multiple opportunities to dismiss this case and it has not done so with prejudice they can follow a motion for return of property under eighteen u s c ninety three they can file a motion for summary judgment with they have done in this case they can follow a motion to suppress if they believe that the evidence was wrongfully seized and they can also file a motion to stay which is not possible in this case but if they feel that they're fit the mat they feel that their right to incrimination could be violated and having to move forward in the civil case they can file that as well claims they cannot raise constitutional claims but they can make a motion to stay based on the fact that they cannot adequately defend themselves in the civil forfeiture case without harming themselves in the criminal case third point was that they're not party why can't an intervenor as a matter right under twenty four a be a party yes your honor and if it's to go ahead i'm sorry that's based on the first circuit case and party and has equal standing with the original party so why isn't this really an intervention and as an intervening of right they need a party yes or i do not think they're undergoing or right now are not a party first of all based on the idea that the united states does not have a claim against second of all there's the question of whether or not they are in intervene or right because of the fact that any additional evidence that they're requesting their claims are against the agents potentially and they have different facts it's based on the seizure warrant which is not necessarily a part of the civil forfeiture case so what their various courts have looked at this idea and they've determined that actually the case if they were doing a lot of these counterclaims would require presentation of different evidence because it would be looking at their motives and the information that they had at the time of the seizure rather than the information that they have currently well they can't really be an interview because this other point but if they were an interview you can see that there would be a party right yes they could potentially be a party but in my briefing i talked about the fact that federal civil yes your honor i don't think it needs to be gone go back to the district court i think it goes back to this idea that they are not allowed to bring a counter claim based on their status whether or not  think that that has an effect on message i mean the district court kirby from wrong basically followed the reasoning for cirque yes your honor and that's that's it no no offense to the district court of course there's not much else out there right judge fitzwater and his order talked about the first circuit case and then various district court cases there are a lot of district court cases that have looked at this idea they've looked at it based on the first circuit case they've also looked at the federal civil procedure thirteen and the fact that a claimant does not have a claim to count are since the united states has not brought the claim against the claimant but it's brought the claim against doesn't really doesn't rule thirteen make a reference to claims brought by attachments or something like that it's i thought i thought it implicitly recognize that there could be a counterclaim in a in a case that was brought by attachment sounds like a forfeiture to me i have not seen any cases that have analyzed it that way or honor but as far as how cases have looked at it they've decided that it's not allowed in these types of cases you say the supplemental rules which when you say gee gee doesn't that rule also say if it if something's not proceeding under twenty eight u s c twenty four sixty one you mean twenty four sixty five that's what you where you would say congress has provided a nother way of proceeding it's we're not proceeding under twenty four sixty five are proceeding under eighteen u s c nine hundred one and is there any benefit to the bifurcated approach yes your honor i believe that there is first looking at the fact that it needs the initial forfeiture case like i said needs to be decided before you can decide any of these issues as far as the bifurcated approach most of the claims that they would have would be there need to be decided after or need to be brought against the agents or the prosecutors so potentially we'd be bringing an additional parties that are not currently involved in this case and like i said we'd be bringing them in on issues that are not involved in this case would you why would you not have to bring them in then if you do it all in this one fell swoop i mean they may be witnesses but not as party yes your honor the issue as the sovereign immunity with the united states so if they adjudicated as part of this yes yes so why isn't that much easier your honor the issue is that there's no waiver of sovereign immunity in this case that that there was specifically a statement that it was wa citation that retail ready cites is forty six u s c three zero nine zero three and that applies to cases that are brought in admiralty it applies to the cases cited by the claimants that deal with issues like damage to a vessel or set off under contract it applies to issues where in order to decide one claim you really need to decide the other and like i said that's not what we have here looking at the f c c a waivers i eighty the statute states that any claim for which a remedy is provided by chapter three zero nine three eleven of title forty six which cites forty six u s c three zero nine zero one at sac relating to claims or suits  admiralty against the united states do not fall under the f t cia and i think this shows that congress intended to create a distinction between that admiralty statute and the civil forfeiture statutes and that's because in admiralty there is this waiver where you are allowed to bring it in the same case a claim for damages to the vessel for example whereas in forfeiture there is not that waiver implicit in the statutes it does not apply because we are not bringing this case side of things and counterclaims it but don't want the negative things that come with that multi might be the maybe you can have your cake and eat it too of congress gave it to you yes your honor with with this issue what do you have distinctions it could have decided not to create cafe could have left these an adult in it chose not to do so it sounds like your argument is where as i understood i guess maybe from your initial brief that the first point you wanted to make was the nature of in room proceedings just excludes counterclaims that's troubling to me about the tell you frankly because that sounds like it's going to blow up admiralty right i mean we don't want to do that so it sounds like what you're saying to us here is a narrower argument based on the statute is that do you think is that really what you want how you think we should resolve this case yes your honor i believe that the statutes clearly show that counter claims are act of it was an act in two thousand ok last my last question is when you were talking about twenty six eighty twenty eight u s c twenty twenty six eighty c i think you were just talking it was about statutes around there yes your honor is it your position that that is a limited waiver of sovereign immunity in forfeiture or or not maybe i misunderstood yes your honor it's a limited waiver in forfeiture it only applies to any claim based on injury or loss of goods and then there are like i said those four different requirements that have to be met so it is a very limited waiver and there's also potentially a waiver under twenty eight u sixty eighty eight that talks about the law enforcement purpose where if they were to bring it later that they could potentially bring a claim under that whether or not they'll be able to do this that in this case i don't know but that's another potential waiver that may apply but the forfeiture waiver is very limited and what and if the conditions that you say are there in twenty six a t c are met what can a claimant do than the claimant can bring a claim for damages where there's essentially  property like for the example where the agents were going and riding around in the car and they crashed it and they're not able to return the property what that essentially does is it allows by ability where the united states cannot meet its obligation under twenty eight u s c twenty four sixty five a where their obligation is to return the property where they cannot do that and they have not otherwise mitigated it or remediated it that that's when that statute does go let's imagine th doesn't work out for the united states you know maybe it will maybe it won't and it doesn't and then are you saying that there could be a lawsuit pursuant to this waiver of sovereign immunity for damages buy retail r not just a hypothetical now you're not committing to anything yes your honor it's unlikely in this case they could bring a waiver since the asset is currency it's unlikely that we're going to lose that money and not be able to return it that's where twenty  to sixty eight comes into play where if they're trying to bring some sort of malicious prosecution claim or something like that and they're able to prove it they could bring it under that but once again that would have to come after the proceeding has been included ok have a brief minute to conclude you may your honour's counterclaims are not allowed in civil forfeiture cases and adequate alternative i'll turn it remedy for return of property is provided and for those reasons the court should rather than granting those the judge granted a stay and so we're going to wait four more months and you may you know may or may not read another stay and then he recused himself from the case he dropped off its water left a new judge was appointed go to space we bring him up to speed all over again and it's going to go on forever are currently true so i believe that right now based on this course interpretations from courts to petition that there's there's no munity to i think based on twenty eight u s c twenty four sixty one and forty clause applied by the u s supreme court was when the united states comes into an unwritten proceeding and somebody else brings a claim against the united states it doesn't have immunity and france this united states versus spec law it says yeah there's no statute here waiving immunity but you're going to come into a proceeding like this you're bound by the outcome just like anybody else right it's in ram it's just the whole world the whole world gets play that's what the courts said and so my contention is that there was never thinking specifically of the statutory waivers of immunity that the united states says are limited that's twenty eight u s c twenty six eighty yes and what's the other one forty six u s c thirty nine zero three thank you the issue about whether makes more sense to them together or separately i have statute of limitations coming up it's coming up on two years this property was seized sixteen months ago there's no end in sight for the underlying case so  i guess without delving into whatever confidential are sealed matters there are what is the basis maybe you can answer this you can tell me if you can't what is i know you have filed successfully what two motions to dismiss we misinformed about what's going on in the regulatory environment actually accused my client of following the law he says you get people scholarships in order to meet the fifteen percent rule that's exactly what the course is so that's what  rule out so he accused by quite a few in the law and that's the basis for forfeiture and so you've filed motions to dismiss and the united states is now on their third amended complaint yes your honor and that's where the case is right now that's where the cases discoveries over the any claims and i guess you know another eight months and a court of appeals is a is a very well hopefully we don't take eight months to decide most of our cases but i'm not we're not commenting on the merits of any such  we have your argument