that you've read the briefs and understand most of these facts will just leave it so i can clarify things first i believe there is no major difference between the parties as the fundamental facts in this case that the plaintiffs property the intent is for the jets and missiles were lawfully acquired by plaintiff and had been sold by the air force as surplus property and they were described by the government that the time is unclassified surplus and junk and of no value and i'm going to address the security issue in a couple of moments can you do you believe you have a talk around klein yes we do your honor and i think we at some length we discussed that in the briefing if i may i'll get back to that in a moment if that's all right your honor some months after the surplus sale of this hardware the air force decided they needed the antennas a spare parts and gauge and construct in contractual discussions with run a begins claim as well that's correct you're right ok and afaik owing to obtain the antennas in gross violation of their rights under the fourth and fifth amendment they error and i believe that they misunderstood what the case law had been in this jurisdiction in the ninth circuit under talker and under the established cases says that the this you could rely on the detention of goods exception they relied on the detention of goods exception and the point we went why was that run it's wrong because all of the cases in this jurisdiction and before the federal courts detention of goods really all apply except for one case to the temporary detention of goods in virtually every one of those cases is a customs case there goods that were detained by the federal government because they were owed money normally customs duties and that was a temporary concept and after the customs duties was paid the goods were turned to the rightful owner and the only other exception is the case of a prisoner being transferred from one place to another and they last is this is goods which really has no exception this was not equal to the supreme court is a very honor but in no case before the supreme court or the other circuits has there been a detention case which was not a temporary holding because there was an issue between the government and the first it's a case of first impression in the fact that there was a no detention in the fact that there was no intent on the part of the government to ever return these goods they stole him they took them to another vendor they took him to lockheed to be attached to  they were not detained and every one of the cases the supreme court as well is this circuit has held that there is a you know there's a temporal component in there and as you state if in fact this court were to hold that that detention exception applies to something that's not temporary where there's absolutely no intent on the part of the government to ever return that they couldn't have returned these goods they took them and for you know beyond the record in this case  hundred those missiles went to syria and blew up they couldn't get them back so i believe that in this with respect to that issue that would be a case of this with the only rely on the detention of goods until they resolve their dispute over the value of every one of those cases is a customs case it wasn't over the value of the goods it was customs duties owed to the u s government by the importer of the goods and they were held in a can is only allowed now you're saying that the government is only allowed to invoke this exception if it's a temporary detention over a dispute relating to some sort of cases involve customs duties correct or that however best the question before us which is whether the statute covers the circumstance that would be a case of first impression  we see from time to time that is a we do that is a good question what we're arguing but we're arguing here is that the detention exception has never been applied to a case where that mean i don't see anything in the precise text of the statute as drafted that might perhaps at this it has never been applied that way before and the intent of the government here was never to return the goods or even pay for them i mean the detention exception as i have read it and as you say this may be a case of first impression with respect to the detention exception because they all involve violated some statute the point of the case here is that the plaintiff owed the government nothing he was the lawful owner of this he owed no customs duties he had no taxes he owed nothing he was the lawful owner had his property c thirteen forty sixty one so if you take that interpretation of the act the court of claims is part from hearing this case we've also made the claim in the briefs that there is c jurisdiction in the federal district court and the court of claims but if you take the interpretation under crane which is a twenty sixteen case file decided after the filing of this one citing the supreme court case of  other individuals and we've discussed never been named there never been named if they were not named as in the bivins case and when the names were you mean tina bivins case against the state right and there are additional individuals and we made the motion we discussed this with with governments counsel's been enormously cooperative and you know discussing the matter but in bivins they were not named and when we determined the names of the additional individuals involved moved in court to add them and that was not morning your honour's please the court i mistrusted united states attorney david pincus and i represent the united states of america to vinci's claims under the federal tort claims act arose from the detention of ten s antenna for air to surface missiles by law enforcement agents of the united states air force as such the district court lacked jurisdiction over such claims under twenty eight us code twenty given over to lockheed and the been attached to other missiles i heard that but there's no evidence in the record of any kind but we have no evidence that they're currently in detention either because you don't know where they are will they have not been returned to  i think that may be an important distinction i mean detention does suggest they're being held and if in fact the allegation is true that they're given over to a third party and used somehow for spare parts how can they arguments of counsel are not considered evidence and they're not entitled to presumption of truth as they might be in a pleading motion which this is not either well what what's what's the dismissal based on if nobody really knows where they're held lack of subject matter jurisdiction i would be glad the most of which is that they're in detention if the court would like i would like to submit a supplemental brief as to where this equipment is right now i don't know this at but i to make a difference for purposes of this in the goods were taken and again just at least for some time is there yes but let's let's assume for a moment that the allegations which i understand aren't supported by evidence are true that in fact the they were taken given over to a third party used for spare parts would that qualify under the detention exception i think the answer's probably no and if so doesn't become important to find out what happened to the items that were taken with it if they were used in some sort of  exception to the f t c there is in a my case this court noted what the purpose of the detention was the purpose was to note that there are congress decided there were certain functions of the government that are so important that they should not be disrupted by excessive claims especially where there is another remedy as here in the court of federal claims all the cases that have been  d dealing with anything similar to this the dubin case and the s t serval case they were all in the the court of federal claims let me let me check the whole box then your counterpart coun court said that they couldn't do that at this point because at that time there were ivins claims but davinci dismissed them voluntarily and i also heard dr wagner say that there was a motion to amend that that is not accurate there was no motion to amend at any point to add the vince claims at then to name the bivins defended it's if you look at the pacer record there is nothing like that it's  and so forth and then resold so how can that happen to goods that are classified that are secret i don't get i don't think they were classified originally but that happened in the shouldn't have been solved in the first place if if if eventually is correct then the government has no ability to do that and i think that would be a very startling proposition and it would not be  karma merchandise or any other property by any officer so he says that we should read into that only applies if there is a temporary detention as judge as we've been discussing  that an exception like that if if the wagners position was correct because every forfeiture necessarily indicates that there's an intent not to return the property in fact even to this day if the a failed even if there is a fail forfeiture but there are some other portion of exception that doesn't apply then the detention clearly applies today with a clear on that maybe i should explain ok what i meant to say is even if there is a fail forfeiture there still might be circumstances where that assumption would apply if for example the claimant had been convicted of a crime even if their forfeiture didn't work for some reason or the e never was a forfeiture the fact that he'd been convicted of a crime means that the exception would apply and i hear that but it seems to me it can be flipped around just as easily why would you need the exception to the exception if the government simply taking it and holding it forever and using it for its purposes still qualified for the tension exception i think this exception designed to push it back out if in fact that's what the government has done we're honoring the ace which is in one nine hundred seventy eight case i believe this court held that the the purpose of the statute was to prevent claims for conversion just like what we have here and as i said earlier there are certain types of government actions that shouldn't be disrupted by these kind of claims here we have property that's been classified retroactively and secret harmful to the united states if it's given to our adversaries and given she is asking for one point two and a half million dollars when you only pa three thousand dollars that's the type of excessive claim that's exactly what they mark court was talking about and here there is a remedy in the court of claims there wasn't that there wasn't one point a motion to dismiss stage the allegation is that the government wanted this may have had a classification argument but ultimately use the antenna are parts there's absolutely no evidence of that but we're at a motion to dismiss now and it gets complicated because it's a jurisdictional motion to dismiss but the court has to bases conclusion on some factual understanding that in fact these were taken by the government to keep them classified and they're still being held not that these are taken by the government for spare parts we have in the record the letter classifying this these this military quest those things aren't mutually exclusive i mean it's not hard to put together a scenario and i'm not conspiratorial minded by nature but you can put together scenarios saying well we can't pay out one point two million dollars or six hundred thousand dollars this was all a screw up we never should let these things go so we're just going to take them back and that way we'll pay three thousand dollars maybe six thousand dollars but we're not going to pay hundreds of thousands of dollars i understand the logic of that as a taxpayer i might appreciate it but why isn't that a plausible theory over which the court would have jurisdiction because it's will be one motion the court is not supposed to assume that any argument made by counsel is correct there has to be some evidence in that  sense it is similar to a summary judgment motion we have evidence on our side we have evidence that this was done for national security reasons there is no evidence on the other side even in the summary judgment motion something beats these were just surplus spare parts according to the government that was the same thing that happened in the dubin case that was the same thing that happened in the serve a case in the dubin case ed that the fact that the equipment had been classified together with the nature of the equipment left no room for doubt that it was for national security purposes anything else  you just wanted to engineer sure well there really is no bill and there is no bivins claim there was never a motion to amend the complaint to substitute parties and as far as not knowing who the parties are every one of those three individuals that was mentioned is listed in the original complaint so there's no reason why i did want to mention there's no reason why they could never amended them if they complain earlier there was no attempt to in fact they follow that  little premature appeal and the reason they dismissed the other bivins defendants was so that they could maintain this appeal in the face of this court's always see it would make no sense to have other  i just want to mention the gash showcase which was a seizure of an aircraft in the ninth circuit and the court held that it was detained and subject to twenty six eighty c it's not true that all the cases this the plaintiff would argue that the business they are in is sort of like you know mining they buy lots and lots of surplus property most of which has very little value and time to time the government needs the equipment back or someone needs the equipment and it's at a high price i mean the successor contract for the additional antennas was forty four and a half million dollars so you know i'm sorry there was a you know a good question to what do we do with the jurisdictional issue i believe is there in the record to suggest that the government doesn't still have these things locked up someplace well there is nothing in the record and i agree with the government's counsel we have no absolute record you know my speculation if you want to ask me the question the hundred jassem missiles that the united states government had their hands on were used last year on an attack on chemical weapons facilities in syria at the order of the president of the hundreds that were launch ninety nine actually got to their destination evidence is there that any of these antennas were attached to those missiles there is nothing in the record if you want to speculate so what do to the federal district court if you look at where we are and to proceed on what based on the fact that the you know it belongs in the federal district court either exclusively or options and there has never been an opportunity for the case to go forward and do any discovery jurisdictional discovery in response to the rule twelve b one motion we were never permitted to go to ask for but i mean i've been in cases back when i was a lawyer sometimes you get discovery at the or there was no discovery permitted in the case and looked at him and his or her order denying requests for discovery there was no signed order denying discovery at that point in time is there anything in the record that indicates that you sought discovery on these issues  not that i can recall at this moment time around let me just address a couple of additional points that counsel made twelve b one motion to dismiss must be based on the fact that a reading given to hardware that were classified by the united states government at the time of their sale major difference here and the argument we've made this the stuff with manufactured as unclassified hardware the paper trail that would be associated with the manufacture plus that i simply didn't exist and we maintained on our briefs that the single letter brought forth in twenty seventeen from a single officially the i'd say here has yet to be deposed is a false and fraudulent farce to cover the behinds of some people that didn't want to go