hold onto it for up to seven to ten months and make a windfall profit off that money and i don't believe that's what the statute was written to and the equities are certainly with you but i have difficulty getting past the part of the statute that says that there has to be a civil proceeding to forfeit property and i don't understand how the statute ever kicks in if the government for one reason or another decides not to use to us to proceeding that's not traditional civil forfeiture proceeding as opposed to a criminal proceeding is a civil proceeding for property it's the essentially the first step of a full civil national claim of filed with the agency it starts with the eighteen and continues on into the hand and through the attorneys hands in the agencies also the attorneys in the agencies review the claim in the petition and then send it over the u cases that talk about the fact that this is really only the first step of the entire civil forfeiture pursuit or so i'm sorry entire civil proceeding and and just one long process so and then the judicial forfeiture proceedings and the judicial stage and then the non judicial phase of the four proceedings so congress was very clear as to what parts of the statute apply only judicial forfeiture proceeding and what plied to the non judicial and in this interest statute that we're suing over in this case the congress did not delineate that separately between them it did not limit there's attorneys presumably on the on the claim of side but definitely on the government side and then the government and then have to make a determination as to whether to continue that proceeding by filing a claim possibly incurring first step is the yeah in the case of reviews the claim decides whether to abandon the proceeding or to then proceed further and in a lot of cases and these cases that i've been doing is forfeiture cases of mr lee has for many many years a lot of cases the da once they see that someone contesting it will then drop it at that point realized well this is not that good of a case we'll drop it but it's being contested that point it gets sent to the u legislative history and you look at the plain plain language where they distinguish between judicial stages in the nontraditional stages the the language at least and by the senators was we want to make these people whole they have to contest this they have to fight the government we want them to be made whole so there's a section there for attorney fees so they can get their attorney's fees back but there's this other section to get the interest back to the government's made on their money and in the whole intent of congress was here's people's property being seized  well that that is the question obviously if you look at the congress congress of content they don't based on the past history of these cases government was making money off of people who property should never been seized in the first place and so they're making the money off of him and congress then came forward had passed a whole new statute called the civil asked the forfeiture reform act to stop the government from making money off of people when they shouldn't and so the whole point is is the same way  interest there was a separate section for interested in talk about litigation costs or about litigation in the interest section that was in a whole separate subsection subsection say subsection v discussed litigation and costs attorney fees liable right and it's love that together because that is the that was twenty four sixty five existed before what they did was a man twenty four sixty five to add these specific provisions to return interest and to return attorney fees but it's not all of the victor the substantially prevails requirement right and that's another question in this case the plaintiffs have not have limited their classes to the people who got all their money back people will prevail completely by getting everything back and the question is does and the government has raised in their their brief this be carrying case that talked about in attorney fees that you and mind you you're contention is that attorney should be awarding these cases to were not that's not before the court anymore but that in fact all that should be included in there are statutes out there that provide for payment of attorney fees and surely administrative proceeded and this case was out there that allowed for that in this case again we're not talking about attorney space we're talking about interest only which has not really has not been litigated in what i could find it and in fact this is a specific statute it's almost like strict liability that and every time the money the person gets all their money back or they substantially prevail against the government by contesting forfeiture they have to get their interest  the government doesn't get to keep you know it is in that it when you look at the structure of small the one acts just textually i'm not sure how you ever get prejudgment interest without a judgment that also gives you the right to the attorney fees the costs and the post judgment interests it seems like it's intended to be a package of things that arrive upon the entries and judgment in your client's favor but in fact they they don't call it prejudges religiously i believe they call it interest the claimant substantially prevail then they are entitled to a package of things from the government and one of them is post judgment interests one of them is the czerny fees and one of them is when i shorthanded you right it isn't in their prejudgment interest but if you look at that instances where there wasn't fact a judicial finding a final judgment and these are these are a glossary of of different remedies that are available whether it's post judgment prejudgment or throw out but these are the be all the fights of remedies that would the the claimant would be entitled to should they get their money back completely and i started it's very interesting that in section a of twenty four sixty five it says upon entry of judgment but it's such an touched for the property now if congress wanted to limit it soley to cases where there's a judgment in judicial pork for city those four words could have easily just inserted right in the beginning of that in the very next for this to could have reasonable cause and so that is specifically talking about a judicial proceeding along the next section doesn't say upon a judgement and a talk about the possible remedies available to explain it when the when they have to contest it and it's a proceeding it's whether you want to call it nontraditional judicial administrate of it it's a civil proceeding to forfeit property by the government like you have exceeded your time that will give you back pretty divergent approaches to what that means i think this case the court has been pretty clear that in these types of statutory construction cases the court has to look at the entire statutory scheme and that's what i would the court to do if you look at the statute the entire statute twenty four sixty five it's laid out in a way that makes it crystal clear that the congress could not have intended that the interest scheme apply in a nine hundred ishall setting twenty four sixty five a starts with the phrase upon the entry of judgment and then it goes on to talk about how when properties returned it should be returned forthwith and then it prevails and in those situations three specific types of costs are allowed to claim and one is reasonable attorneys fees and other litigation costs seconds post judgment interest in the third thing is what is really at issue here and that's the interest and then as as a almost a repeat itself congress goes on to say the united states shall not be required to discords the value of any intelligible benefits nor make any other payments not certainly are remedies that can be pursued to step back for a second before twenty four sixty five was amended and mr hornik is correct that twenty four sixty five did exist before two thousand and the part that repeats various stages of the statute the way it's been going through congress in the discussions that talk about interest a lot of this is just repetitive the congress does take a note of the circuit split that occurred in in the area of prejudgment interest in and this circuit the two hundred seventy seven thousand dollar case awards prejudgment enters the  under twenty four sixty five yes they would award some measure of prejudgment interest but they limited the amount of remedies that a claim and what have they they've done other things for example  it undertakes and therefore congress decided that it would provide that added measure of remedies to claimants if they feel that they've been aggrieved by a seizure what congress chose not to do and where congress drew the line is in awarding any measure of pre judgment interest that's not specifically authorized by d y n c congress clearly intended that those agency and the attorney general and the u s attorney's office finally the time barriers that are set up i kept them in this case did they return the money last case the u s attorney's office returned the money before the ninety day period expired i don't i don't recall exactly what happened in the second case but i did notice that it was beyond the ninety days it was beyond the ninety days yes so what do you do then when they violated captain well it's i think i don't agree that that constitutes a violation though i don't i believe what which he did the agency asked the second claim in for a hold harmless agreement and that i think process took about a month to undertake and by the time that the marshal service returned the in that situation if i soon that the court means that there is no judicial action that's right it's just like these cases it's been decided by the government they're not going to pursue it and claim it's are treated in a district court like if a complaint was filed those cases are heard just like any other case if the claimant feels that the government is taking too long to return its money they can make that  post judgement interest because kaffir provides that i think that in that situation that they would not be entitled to prejudgment interest because kaffirs not only doesn't provide the kaffir pretty clearly evidences and tend not to provide limited the time it provided some changes in the burden of proof there are some areas where perhaps congress chose not to go to the extent that those constituted inequities i think that's a decision that perhaps congress should make rather than this court especially because congress here clearly indicated in twenty four sixty five in more than one place that if it's not listed here it's not available one even if you look at that entice elation without looking at the words that are in that statute substantially prevails which is a term of art that's using court cases litigation costs that's another term of art that's using court cases prejudgment interest that's a another term of art that indicates a judicial case besides the individual construction from subsection be one there is an additional requirement why plaintiffs can prevail in this case and that is that they have to have substantially prevail and they did not do so here because in all three situations the government gave back the property without filing judicial action other words the system worked the way it should have for whatever reason and it's not do they have to be clean council or they wouldn't have gotten their money back isn't that right i think that's fair to say because if if the agency seems this money actually for the money well that's the problem though your honor think got it a little bit sooner and if they waited until they make the claim and the government said well we think we still have a good case they then bring a civil the prez case and the ninth circuit all say that substantially prevails means two things someone has to have a court order or you have to have a settlement agreement that's in forcible via consent decree and over into its stance you prevail that is not what happened here what happened here really and not all of this is in the record is that it's not the case that that there was a maryla seizure it's the the government in its executive decision decided not to pursue the cases because cases fell below the fifteen thousand dollar threshold to get into the u s attorney's office there were facts to indicate that there was married to this case for example in the senate our case the the claimant had ties t d m a distribution rings the synagogue had no idea that he was going to new york to make life sins on behalf of the senate but for whatever reason the government chose not to bring this case because he did not have the resources and  provides protection to the government in that situation to make its executive decision not to pursue judicial cases not to clog up the courts with small cases without the risk of incurring interest exposure be to claim to come in again to court and ask for the money back first of all the government's will cry required to return the money because the ninety days that the such limitation but now the government holds on to longer and this so they've taken the position that you're not in pods or tourney speed interest in any case when the government holds onto your your money property doesn't give it back to you so you have to go to court and hire an attorney and it can i can imagine the congress intended that the government can grab someone's property hold on to it and they can spend fees they can spend more fees after the time limits are up and not get at least a minimal amount of introspective governments made as a profit it just doesn't make sense