and you hear us yes ma'am i can apologize for the dilemma my name is dan alvin representing the plaintiff opponent antonio in warre this is a case of your money or your rights can a federal agency hold a private property ransom and demand that the property owner interim to a contract with the agency as a condition of its return despite congress commanded by statute that the agency quote shall promptly release the property and that it may not take any further action to affect the civil forfeiture of the property the answer is no specifically plaintiff antonio warning on behalf of a putative class challenges customs and border protection policy or practice of demanding that property owners sign a hold harmless agreement as a condition of returning their seized property even when the return of that property is required by statute this hold harmless agreement requires property owners to waive certain constitutional and statutory rights including the right to sue or petition the government over anything related to the seizure the right to seek attorney's fees in the right to interest and requires property owners to assume certain legal obligations including indemnify and the government from claims brought by rd parties and agreeing to pay the government's attorney's fees if the hold harmless agreement is violated the district court erred by dismissing on the pleadings each of plaintiffs two class claims and two individual claims i will address these turn these claims in turn beginning with the class claims antonia challenges c b p's policy on behalf of herself and a class of similarly situated property owners harmed by this policy on two grounds st as ultra veera as of statutory authority and imposing unconstitutional conditions on property owners and tony also brings to individual claims claim three is a claim for the return of interest on a seize property and claim four is a procedural due process claim challenging that she has been singled out for particularly intrusive and invasive screenings every single time she flies because she has been placed on a screaming list without notice or an opportunity to be heard now turning to the cl claims st let me address standing the government wrongly claims that antonia has no standing because it says she has not suffered a cognizable injury and her claims are moot but the arguments the government's argument is foreclosed by th circuits bright line rule on the picking off to exception to minutes which was announced in sidemen antonia was harmed by this hold harmless agreement policy when she was subjected to see b p s unlawful and unconstitutional demand to sign a hold harmless agreement or ha ha before her property would be released her class claims are not moot but even if her individual claim was eventually mooted she will still retain standing as the class representative under this picking they stand and then you know well or how is as well this is can this is conditioning a government benefit in this case the restoration the release of one seized property on signing an agreement entering so they have actually signed it is suggested themselves to the things you think are and wrong yes your honor it is a seat inside that's true your honor but both claims the statutory claim and the constitutional claim depend on the demands being made of the property owner then being put on the horns of the dilemma and frankly it does not matter which option they choose it does not matter if they decided to sign the agreement or not and the supreme court discussed this  when it said that voluntary when it said that it does not matter whether the property owner rees to waive their property right or agrees to to cede to the government's demand extortionate demands run afoul of the constitution because they impermissibly burden the right and so in koontz at six o six the supreme court said we're guard less of whether the government ultimately succeeds in pressuring someone into forfeiting their constitutional right the unconstitutional conditions doctrine for big needs burdening the constitution's enumerated rights so both antonia and a property owner who actually signed the hold harmless agreement are subjected to that unconstitutional demand and as the supreme court said it does not matter which option they choose because the demand itself is what is unconstitutional it is also ultra firas because as the clear language of the statute commands  the agency may not hang on to the property and make demands instead what the statute says is that the government shall promptly release the property and may not take any further action to affect the civil  forfeiture of the property but what the government does here is it says you must sign this hold harmless agreement within thirty days or we will take steps to administratively forfeit your property that is obviously a further action to affect the civil for of someone's property and directly violates congress command in kaffir it also directly violates the instructions of the attorneys generals regulations that are promulgated under that very statutory provision the attorney general's regulations at twenty eight c f r eight point one three say that upon coming aware that the seized property must be released the agency shall promptly notify the person with a right to immediate possession of the property informing that person to contact the property custodian within a specified period for release of the property neither kaffir of nor this regulation promulgated under cafe mention anything about a whole harmless agreement mention anything about demanding the property owners waive their rights or mention anything permitting an agency to hold onto the property until the property owner signs the agreement so that directly violates and is in violation of both the but instead of real property this case involves the use of personal property and the exaction in this case is actually far worse than in coons and the other real property exaction cases which involve the government imposing conditions on a discretionary license or a zoning variance that it is not required to grant here the government is attempting to impose conditions on a property right that has already vested by statute directly contrary to the explicit commands of congress that is impermissible and it's not just an unconstitutional condition it is one of the worst kinds of unconstitutional conditions the pits one constitutional right versus another as the because there is not really an issue of a settlement and that the government can offer us make settlement offers to two people that include waivers of constitutional rights and while it's true that during the course of ongoing litigation when there is a pending dispute the government may offer settlement agreements that agree to drop certain claims in exchange for you know waivers of various statutory rights or constitutional rights and  and an injunction against c b p continuing to use this policy against the members of the class when an individual really yes your honor we see two forms of individual relief st we we seek the return of interest on the seize property and secondly we seek notice and an opportunity to be heard to the placement of the plaintiff antonio on a screen last that targets her for additional intrusive screening every single time she travels we are not saying she has to be removed from this list we're saying that she is entitled to notice and an opportunity to be heard as to whether she belongs on this list or not that is a claim that focuses on the due process factors in matthews v eldridge it looks at the three part balancing test of matthews st whether the private interests are affected nd whether there is a risk of erroneous separation and rd whether a government interest is implicated and recently the eastern district of virginia in the applied these matthews factors to a very similar list a terrorism screening database list that functions in much the same way that we believe the screening last applies to antonia and that court found provide adequate due process because it does not inform the person who files an application that does not even inform them whether their status has changed and it doesn't inform them about the basis of their inclusion pursue any other work then i mean he committed an act that depending on the proof of her intent is a crime and she could still be prosecuted for that well your honor she pleads in the complaint that she was unaware of the statute and did not  d but you know they could still pursue a criminal case against her and attempt to prove that she did know based on the communication that she had at the time she was asked about the ten thousand dollars and said on out on his it's in her suitcase instead of her purse so does that affect the issue of the government's ability to continue to review her as she travels around that she's a centrally a criminal then it does not affect her due process right to notice and an opportunity to be heard all of the considerations you just mentioned judge would be considered at such a hearing and it may well be that that hearing determines that yes she doesn't fact somebody exam trying to understand the big picture here let me have somebody who for a guy this is their story they had a gun in their suitcases forgot it was there they come through the screening checkpoint they find a gun alternately nobody prosecute center because they convince a mom is confused you know i use that when i grew to grow somewhere away or so they're not prosecuted but they go on this list now and now every time they go through their suitcases or set aside and opened up and look through  much more detail that you would say is a due process violation because they weren't notified that they're going to be on that list in those circumstances the person the person should receive notice and an opportunity to be heard that doesn't mean a full court case that simply means they've been notified at the time they're put on the list and provided an opportunity to be heard in that extent why because if somebody commits a crime just in the world and maybe isn't prosecuted and the police decide to follow him in public places i understand they can just walk into their private places and start searching without a warrant but they can still be doing a lot of investigations a lot of things to do or even somebody who's a criminal and they don't have to get permission from the person who are the it's so i'm just trying to understand you know there's rules of bad getting on planes that allow for more examination than you would just get in an ordinary place in the world why does this entirely new to the actually be heard after you've committed arguably minute a crime well that's what's at issue your honor whether the person did in fact commit the crime whether they knowingly committed that crime none of that has ever been established and there's been no opportunity to contest it so even in those circumstances you know yes obviously when you board a plane you're subject to disclaim but you're not targeted for that intrusive screening every single time her luggage has been destroyed twice as a result of this process you your honor and the court case and ross the united states to the extent if the court assumes that plaintiff has actually been injured in this case all of her injuries are moot and plaintiff has not identified any continuing injury the quote inherently transitory exception to movements when a named plaintiff claims are moot before class certification does not apply to any quote taking off theory that is it goes to the nature of the claim itself rather than how the claim leave here she hasn't to touch and establish any entitlement to such on her class claims just report properly dismiss them and this court should have from on that basis on her individual claims and that  effectively is a law enforcement record of past interactions with customs agents is not a screening list as it's popular it popularly understood and in reference to the no fly or select t v s which you know are dealt with violated the customs laws in refusing to declare the amount of currency she was transporting that is potentially a criminal violation and c b p documented as such in its text database and in doing so that is effectively a log of past interactions with the agency so that in subsequent interactions with particular individuals they're able to inform those interactions appropriately it's similar for example to a police officer stopped someone on the street and issuing them a tried to reenter the country or travel internationally again they would have some record of that interaction so that they would be able to inform their law enforcement practice appropriately now it's also worth mentioning that you know she would have chosen and you have chosen not to prosecute her and so why should she essentially be found guilty on this whatever you want to call it nine lists diary of  the plaintiff has no ability to contest administrative procedures for due process by the action if they themselves don't go through those procedures she hasn't lost any exhaustion from the agency in any respect whatsoever it did he needs to go through that whether it's nice or not and if he doesn't like it then he may have a hard but that's one response your honor additionally there's substantial daylight between the government's decision to prosecute or conduct a civil forfeiture proceeding versus the discretion of law enforcement agents at the border to search individuals that is if not this is a necessary predicate for any particular screening process that there be a record that the government initiated some sort of prosecution against that will i might leave to seek to leave the country tomorrow and be subject to additional screening just by virtue of the age of suspicion of my particular behavior at that time it wouldn't be necessary that i was prosecuted does not rely on the text database so they're not they don't have the diary as your own to refer to it they of course they could have searched her for any other number of reasons because this was a result of a motion to dismiss we don't  the t s a is under you know scrutiny in terms of not discerning based on race and things like that so they do these random things where this thing goes a b b then they take you aside and all of that and so in her case if they actually don't know about her situation then it would have to be a v or something that she's doing that strange for them to take her aside right theoretically your honor it is also worth mentioning that pledge of expressly has a she's failed to allege how any of those property and liberty interest for actually infringed so ringback as your honor correctly noted in that discussion interest counsel she's never actually been prohibited from flying there have been de minimus delays on several noted she's abandoned her equal protection and national discrimination claim all of these go to say that the direct just report quickly dismissed that due process violation for failure to state a claim i think it might also be worth can i just has failed to identify any injury from failing to souths or excuse me failing to sign the agreement itself she makes much noise about the fact that the agreement may have waived certain rights but because she was never signed the agreement she couldn't have been affected by with the pregnant cat and now has the cat argument is that how this it works i mean when you take this money is it put in some bucket where it can be traced how much money they made it is that the interest he's asking for or to answer directly answer your question the cow in the catholic sample is actually distinguishable from the need the nature of interest itself in the cow and calf the cats itself is likely consider proceeds of the underlying property interest is t legally distinguishable from proceeds and under the government's theory an owner of a property even after it's been sees by the government is still entitled to the proceeds of that property subject to a forfeiture proceeding shouldn't take my hands if that's my understanding your honor that's what you're saying is the cal cap which is different from you take my one thousand dollars and now i want my interest on that's correct and the courts that have adopted pla s theory have instead characterized interest under any other number of names including just compensation or earned increment or delayed compensation all of which the supreme court explicitly rejected in shaw and which plaintiff makes no effort to on this floor not only would it join the minority of circuits who have effectively abrogated supreme court authority on this question but it would also arguably open a circuit split on the meaning of the whole of criminal procedure forty one  again plaintiff makes no effort to distinguish any of these cases nor why the theory itself is consistent with governing supreme court precedent unless the court has dipped any additional questions the government that after the genesis healthcare decision the picking off exception to maintenance still remains valid what the what the fuck no court said was the genesis health care does not foreclose the broader zeidman approach to the there is no difference between being on a screening last or being in a database that subjects you to additional screening and there is no there is nothing about the claim that is dependent on whether it is a list or a database my friend also claims that the t s a doesn't use the text database but that information is not in the record that is not reflected by the record anywhere and it is not evidence because there has been no discovery about the text database the t s a is  the h s agency just as c b p is and it may very well be possible that they do share information that comes from the text database it may be that they do so through a different medium through a different database but that information is export from the text database in ways that can be used by t s a either way that's not that's not available to the court at this time and that's just one of the many reasons for why the court should reverse in remand argument that even if it's a crime  supposed to balance the interests of the individual and retaining prompt access to a federal judicial forum against the government interests and the interests here way particularly heavily in three circumstances st where there is no diff definite timeframe for administrative action well that's true here because the d s s trip system provides no definite timeframe for when you'll get a result set and when the an exhausted in ministry of remedy would be plainly inadequate we know from the al hadi opinion where there was discovery and where the court ruled for the plaintiffs on summary judgment that the d h s trip process is plainly inadequate it's a black box that there is no neutral administrators no neutral adjudicator and the even when you complete the process it doesn't tell you whether you're still on the screening list or what the basis was for including you on the screening last and finally you're not required to go through administrative exhaustion when the claimant contends that the administrative process itself is unlawful and that is true here we are saying that the da just tripped process violates due process because there was never any notice that she was placed on the text database or whatever screening list she is on and she's never had an opportunity a meaningful opportunity to contest that because the d well in koontz the supreme court ruled that the harm to someone who is subjected to unconstitutional conditions is being put to the test being put on the horns of the dilemma that's what burdens the constitutional right and so regardless of what the person chooses as they as the court says it violates their constitutional rights to be put to the choice between one constitutional rights or another finally as to the interest on the property we have not previously seen any definition from the government about what proceeds mean but proceeds appears to have a very broad definition in legal in legal terminology the black's law dictionary calls it issues produce or money obtained from property in the west law dictionary says it's the yield income money or any nothing of value produced from property so i think proceeds would encompass interest in this case