as he was returning home through dulles airport and ice agencies temporarily detained rather his laptop and in doing so caused irreparable damage to his laptop to the files on there when you look at mr cam out his complaint and the amended complaint taking those allegations as true is it possible that there was consideration as a plausible that there was an agreement well two problems you have with that mr di even though complaint clearly stated that there was an agreement between the ice agent and mr cannon was that the laptop would be returned in working condition within seven days that was an oral agreement and when there is an implied in fact contract and under classic common law of contract when there's an inside of that contract you look at the conduct of the parties that that document form sixty fifty one is evidence of the newspaper with the intent of paying but i never say anything to the vendor and the vendor never says anything to me that's implied in fact contract because the understanding between the two individuals is that by me taking the because here based on the complaint there is a specific allegation that agent mold our intended to return the laptop and in fact there's an email in the jo seventy five that indicates that i was in fact using it best efforts to restore the information on the laptop so it could return it to mr can i must there's also a letter from presumably no taking under the fifth amendment question here though and when you look at the facts of all these cases this is amerisource this is acadia technologies and more importantly this is venice from the supreme court in all of those cases that involve taking where the courts have decided there is no taken because police power action they all fall into one of two categories the property itself violated a law that is it is contraband or second the property was being used in an illegal manner and in benefit bennett the classic example fantasy involved in the seizure essentially seizure of an automobile that was used by a husband core prostitution the wife claimed that as an innocent owner she had a viable taking place the court said no and what the court said is that there's no taking because that property itself was an instrumentality of the crime and in contract line right that's correct at first and here again the question is whether the elements of an implied in fact contract for bellman have been positively of pledged and it's not whether my client has satisfied his burden of actually proving that as well those elements it's just a question of whether when you read the amended complaint and the complaint taken together whether you can possibly invision a situation where there was an agreement between mr kendall myers and agent mulder allen that his property would be temporarily given to ice and then later returned and that's exactly what mine has alleged and so on that allegation he satisfies the classic elements of a ballot bellman is nothing more than one person giving property to another so possession transfers but title is there now between those two there is there is a difference between those two words but when you read the complaint as a whole and the other facts alleged in the complaint and you could see that there was some give and take between mr can highlight in that i didn't see anywhere alleged all the elements of abandonment claim here and it may be that during discovery other facts arise that defeat our claim or it may be as actually other facts are beneficial for us but we satisfy all fourth amendment is a due process issue here at the meet this brings up and it's very there are some cases that suggest that in these instances there is no fourth amendment due process violation or unreasonable search violations night circus justice and i will say that the supreme court has not yet addressed this issue in terms of what level if any of suspicion is required for customs or ice to temporarily detain a laptop to essentially go through and copy every single file that's on a laptop and that's you know that's a fourth amendment concern here when i'm concerned about that our concern here is that when the ice age and took temporarily the laptop he alleged to he told mr cam home alive that will hold it for seven days you'll get it back in working condition that didn't happen he lost his files those cases sound the stamp of the proposition that even though a bailment does sound like a tort there are two distinct claims and just because a claim might fail under top tort law you have a yes judge newman i think looking at what happened in the supreme court case because that is it in streaming instructive here because what happened when it got remanded to the trials our court both sides actually moved for summary judgment so wasn't even the dismiss of under twelve the six they moved for summary judgment the court denied that the court had a full trial on the merits and even the the plaintiff in that case lost the question is completely relevant here is in that case the case very similar to ours the place seemed to satisfy the twelve the six leading requirement and he got to the point where you could get through discovery the ultimate fail but the question for the exceptions to the payments that are about on your mind even if you currently need ministry really and is now seeking judicial review that's correct but it shows where the where the source of the remedy lies and that's with congress that congress can provide a remedy and it actually has or they have not worked in the justice of the captive thousands i think there are two caps one is for a thousand and one is for fifty thousand but and another remedy is to go to congress and seek a private bill or to gather together with similarly situated citizens and ask congress for relief whose property damage by the council here has to get a private bill from congress in order to that the they only claim was should be dismissed for lack of jurisdiction we recognize that the supreme court said that you can if that is that the court of federal claims has jurisdiction to consider those kinds of claims but if the in those cases justice waxman for contract for failure to state a claim for which relief may be granted that assumes that the court had jurisdiction to consider the claim but that this particular complaint did not satisfy the requirements of it paul and twamley in fact the allegations in are inconsistent with the types of allegations that would be necessary to to state a claim for breach of a bail and contract and in particular the appellant had no choice he to retain the laptop once he was in the presence of customs the contract with the that she'd made the laptop was going to be taken from him he had no choice so if you assume that this is a contract it clearly isn't involuntary me i mean i tell him that it was involuntary the appellant is still very unhappy about the fact that he wasn't allowed to make copies there was no meeting of the minds on the terms of any kind of in trust  separate remedy or or not under the federal tort claims act so in the in cause that ultimately the court held that there was no bailment contract similarly there are only two cases of which i'm aware and i've looked very hard  through the particular fact that the court didn't ish and didn't make any kind of judgment on those facts and in particular in hustler justice blackmun wouldn't have even agree that there was  reverse one of the cases that the appellant relies upon and that's the second circuit case from fifty years ago where the second circuit seemed to find some sort of constructive bailment more than a bail money implied in law  involving customs detention and seizure of property from a commercial importer and that's an old case it's never been followed and plaintiff admits that it was reversed because that the other person part i mean not long before it was only reversed i'm sorry i agree the other cases cooney and nagel which was a court of claims case where the government won so we couldn't appeal the court in that case county unable which is one of the world's largest freight for readers and entered into bailment contract all the time with its customers provided a letter of credit to the customer service that the trial court held could be construed as a contract with customs but it didn't express please state that customs would take care of the property return it in the same same status it was when it was given to customs and therefore the court held even if this letter of credit which which was money given to customs and of course doesn't exist here could be considered a contract it needs to contain the expressed terms of ailment contract in order to be a veil many countries difficulty i'm happy i guess step one they took his computer and he had no  too if you want to understand the case this way in terms of what went down after their taping that let's assume they say well we can do one of two that we can throw this out after we're done with that or do you want to do that and if you want to back you fill out this form we get your address and we'll give it back to you in thirty days so he voluntarily says no i want to throw it out i want to enter into some sort of agreement with you and that agreement is that you would agree to give it back to be in thirty days in the same chain and the parties both agreed that that was not start to sound like an implied that contract that aspect of the transaction because it's still within the discretion of the law enforcement official they're still discussing the terms and conditions of the law enforcement exercise of police power and the fact that that is alleged in this case in any event the officer never said we're going to keep this forever and he said we will look at it we will try to get it back to you in seven days  showed him as much courtesy as well that we shall not have a set of answers so take my advice in that instance would we be getting much closer to an apology no i don't think so because it's still an exercise of law enforcement authority  it's still the use of the police power and the officer still gets to decide i mean he might take into account as you know the government tries to be as courteous and polite and accommodating to citizens as it can in the circumstances so the officer might take into account what the property owner desires officer says to him well if you want it back you're going to have to give me a check for twenty five dollars to pay for the postage and handling form in order to obtain a service is not a contract so i don't think pain money in order to get a particular special treatment under this court's precedent that would not be a contract i don't hear you say that there is no limit to government discretion long for instance no i did not say that your honor there are of course constitutional limits under the due process cla discretionary constitutional review only civil rights my quest right if it would be easy if someone violates your constitutional rights an individual and if they're acting beyond the scope of their there there is a statutory remedy that congress has provided it didn't apply to this particular person but congress has provided an administrative monetary remedy there is a remedy of going to the district court and seeking an injunction under the due process clause for unreasonable delay which is what this complaint alleges and i know you don't like this possibility but a citizen who feels aggrieved can always petition congress or get together with similarly situated citizens and petition congress i do want to address amerisource very quickly because amerisource which was a recent decision by this case also involved a seizure and in that case contrary to my my learned colleague here the  the drugs that were seized were not contraband in themselves they were simply evidence and the government said we need to keep this is evidence it was there was no in the room forfeiture proceeding for the for the pharmaceuticals and in fact the government kept telling amerisource when we're done with it as evidence we'll give it back to you and as it turned out the government never used it as evidence at the trial so the property was seized it was kept in the law enforcement officers custody it was the intent was always to return it and it was ultimately returned i think after four years but it was no longer useful after that period of time but this court nevertheless felt that that was a valid exercise of the police power and not of taking for public use under the fifth amendment so this distinction which actually is a repeat of the arguments that were made in their marriage source this distinction between when the property itself is somehow tainted in venice and a situation where the property ultimately is determined not to be as the map up in this case is not consistent with this court's ruling in america source so the issue which i do agree with my colleague about is whether this particular complaint was promptly dismissed for failure stated claim now in the in the reply brief the appellant really emphasizes that they want their day in court and that it would be rare for this court to affirm a dismissal for failure to say the claim that there are many many affirm and says of dismissals for failure to say the claim both in the contract area and in the takings area two important cases that we we emphasize and the plaintiff admits are relevant our trauma services for whether a contract was formed that's a foundational case that is cited frequently by this court some fans and kept them and they were damaged while they were in customs possession in this portal that was not a taking there was another case where the trial court dismissed for failure to state a claim based upon the facts of the complain glad i didn't go over last time just as a few quick points did i only have about a minute left and trying the services group that the issues there was that there was the court actually determined that there was a memorandum of agreement that dealt with the issue of whether you had to pay extra tax completely different case and here with regard to a marriage source that is a recent case key distinction there and that was  actually i was meant to emphasize because he's one of my most recognized judges my apologies but there if you look at the opinion the panel focused on the fact that the court had determined through a rule forty one g proceeding under the federal to criminal procedure that there was some connection between the seized property and a criminal investigation we don't have that here in this case it's just a seizure when the property isn't either associated with criminal activity or contraband itself and i would ask the panel to look closely at this court's opinion in summers oil and summers oil as the opinion written by judge  artful it needs that standard and i think that's what we have here and just to clarify one thing there's some discussion about codes that codes that if i remember correctly codes that when i went back down it never