We'll hear argument next in number 05-5178, a KDA technology against the United States. We'll give you a moment to get your papers out and so forth. Okay, I think we're ready now. Straight time for a KDA. Is that the correct pronunciation of your name by the way? A time. A time. Very good. Thank you. The court below seemed to rush to judgment without heating the warnings and numerous taking cases that the fact intensive nature of just compensation, jurisprudence argues against the precipitous grant of 12-1, on before summary judgment motions. The facts here were not adequately explored by the lower court in order to determine what it was about the government's conduct that justified this extraordinary delay. The delay is a wasting asset, nor did the trial judge give adequate attention to the pleadings and the facts pled in the complaint. The right most egregiously applied the wrong analytical standard for, especially wrong analytical standards, especially when he talks about the public use and prevention of harm. Could I ask a question just at the outset? If you were to, let's say it was accepted that the case was very complex and that it was reasonable for the government to take whatever four years to determine the, go through the procedural steps necessary to advance the forfeiture. But in any event that there would be a delay would be deemed reasonable. Would there be a taking under those circumstances, do you think? No, I agree with you. So the taking depends on the unreasonableness of the conduct. Let me put it this way
. When someone imports goods, he should expect that customs may look at his entry. He should also expect that customs may open up the box and look at the merchandise. He should expect that some kind of attention will be given to the matter. What he should, doesn't have to expect is that an ineffective, a ridiculous claim by an outsider, you will not even a claim donor but a certification and an inspection company. With the kind of vague material that appears on pages 14 through 16 of the government's brief and opposition, would by itself and with nothing more result in a delay of, well, altogether six years, four and a half years before they even move for forfeiture. So to answer the question more particularly, the ordinary incidents of living in a complex society, especially if you're going to do something that a regular course involves someone looking at your goods, it's fine, but this judge below should have asked the question, why the government need four and a half years? What he saw it's and the classic intersection between those kind of forfeiture cases and taking some analysis is a criminal situation where you've got a, obviously, a person criminal claim and you're not going to try your in-rem forfeiture matter for the vehicle, let's say, while you're prosecuting the criminal case, we don't have anything like that here. Norris is there the slightest indication that the government ever spent five minutes, five minutes of its own looking at making a determination whether these goods could bore a counterfeit mark, not five minutes, look at their forfeiture petition, pages 50 through 52 of the government's grief and opposition, we're page 51, I think it's paragraph four, all they say is that's in the blue briefcase. No, no, the government's in the room. The government's grief and opposition, I think it's, no, I'm sorry, it's in the blue briefcase. Yeah, I thought so. Fifty through 51, page 51, paragraph four. The government says, well, we think, essentially, they say we think that these marks are counterfeit because UL underwriters laboratory says so. That's all I've ever amounted to. They never made an independent determination because if I can focus your attention on something very, very basic, you've got a fan, a simple fan made by a manufacturer. The fan is to be used in a computer to cool. It's old technology when obsolete a long time ago, but in the early 90s, middle 90s, it was very viable
. So you have this fan, you put a simple piece of metal over it, you sell it as a component, and UL has a special mark, reverse UR for components. So if you're the government and you want to say, is this a counterfeit mark? What you do is you look at the thing, you open up the cardboard, you take out a fan, it's only four and a half, five inches. You unscrew some screws, you look at it, and you see whether there is, the name of the manufacturer, and a UL mark. A UL reverse UR mark. And of course, the government has our documents showing that the fan manufacturer had a UL authorization. In fact, we didn't argue it extensively in the briefs, but anyone could see from the exhibits that you've got that the government produced, that the actual underwriters' laboratory approvals are noted in the invoices as part of the package. But that isn't the point. I'm getting too detailed. Mr. E. Todd, I have one question. With respect to your stipulated dispecial of the seizure action that was filed by the court, by the government, why didn't you pursue your fees and your cost in that case? Well, of course there were no costs. I mean, virtually no costs except maybe filing fees. It must have been some legal fees. No, well, that perhaps, but here's, that's a good question. I have a wonderful answer for you based upon law
. You don't charge that much? No, no, no, no, no, no, no, no, no, no, that's not the point. You must charge a reasonable amount for your time. I do charge a reasonable amount. Thank you for your inquiry. If you look at Marshall Leasing, a case that we cited repeatedly, both in our opening brief and reply brief, it's a ninth-circuit case. And in the ninth-circuit, if you want to bring a due process type claim, if you want to get your goods back in circumstances in which the court says, well, you're really doing that in order to set up a stage for an unjust taking case, we're not going to allow you because for that you've got to go to the claims court. Look at page 1099 of Marshall Leasing and you've got your answer there. On that page, I'm going to quote from the case, the only value to a balance of the declaratory judgment they see would have been to serve as a raise to the court in the claims court where they could obtain money damages. Then the opinion continues citing another ninth-circuit case in which the court held that it would not take jurisdiction over a claim seeking an order requiring payment to funds improperly deferred, reasoning that the only impact of the equitable relief would be monetary. In other words, once the government gives you back your goods, you go to the ninth-circuit, you say, well, you know what? I still want to litigate my entitlement. I've got the goods back. Of course, they were worthless by then. They had been worthless some time. Oh, well, the ninth-circuit would say, you're just setting us up for a raise to the court of claim if you win so that you can run over to the claims court and get a monetary damage. So that wouldn't have worked if I can enlarge upon your claim why I didn't try to get the main issues adjudicated in the district court, Northern District of California, when the government said, you're your goods back. Once you get your goods back, I could have perhaps tried to say, no, I don't want the goods back
. I want to litigate, but the court wouldn't have let me litigate that. What about some early point in this process? Yes. You could have gone into the district court and said, I'm sorry, you could have gone into the district court. No, no, I could. Well, again. Well, the Supreme Court says you could. So, if 8850 has a little discussion of this as you may be familiar with the passage I'm talking about, where they say, and let me just so that we're clear, I think I actually got the language, a claim that is able to trigger rapid filing of a forfeiture action if he desires it. He can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. So, given that the Supreme Court has said you can do it, it seems to me that it's an option that would be open to you. May I, may I please respond? Sure. There's a major case, the only case that dealt with our statutory argument is this computer towers case, the 10,500 computer towers case. Let me tell you that I started out as counsel in that case, and I did just that. Okay. I said the government wants to wait until it's five years or out nearly so we can't wait. I filed a petition to accelerate the Claretary relief. Let's get on with it
. Hurry up. Well, again, in the ninth circuit, they had all the judges submitted an unpublished decision called the Armstrong case, and they all relied on it, and then they all cite this Armstrong case to say, if you've got a government forfeiture case, you can't go into this court and accelerate the government's forfeiture petition. I tried it. I was thrown out of court. Do they address the 8850 language in the Armstrong case? Did you cite it to them? No. They simply said, forfeiture case like this means that the government must be allowed its time to bring its case, and you can't accelerate it by bringing the Claretary action. I was thrown out. Even if it's an unreasonable period of time. Well, of course it was, but we were screaming with them. Of course it's unreasonable. It's extremely unreasonable. And what's unreasonable about it also is the tactics that's involved. You got a wasting asset. Look, suppose this were flowers or tomatoes. Can the government really wait more than a reasonable time before it says, you know what? Maybe we should forfeit this or maybe we should give it back to you. If you hype up the fact and have a commonly acceptable wasting asset, you'll understand what I mean
. So I want to get on to this point. Nothing was decided in the Northern District case. The government gave us back the goods, and at that time the government understood and we understood that the goods were values. Everybody understood. They had become values a long time ago. The government knew because we had been pestering them. We said, look, we've got licenses. We've got licenses. This is a bunch of belonging. We have licenses. No, no. The government waited. Now, the government chooses sides. It intervenes in a private dispute. I mean, this isn't like a criminal case. Here the government could choose between you and us
. And at all times it plumped in favor of you. Well, we come to this court and we say, well, we didn't get an adjudication before. Now we want unjust taking and decide whatever you have to decide. If it's going to turn out that you have to decide even now whether the marks were good, fine, decide. But there's an unjust taking here. No probable cause, no forfeiture. And if this judge would simply have explored the facts, he would have seen how unreasonably we were treated. And that our only recourse now is to come here. Of course, the government always says you're in the wrong court. You're always in the wrong court. Go back to the district court. There's nothing to go back to the district court. We want this court to court below if this court will agree with us to allow the record to be made to explore the facts. To show all the things that support showing how unreasonable the government was from day one until the end. And of course, when the government took this item, when the government's conduct did what it did, it totally deprived us of the value. If the government had at least allowed a mini hearing, if it had gone to the court and say, well, we could probably cause
. We need more time, whatever, whatever. Mr. Eton, with respect to the Varada case, our Varada case, it was issued saying in effect that if you have administrative and judicial remedies under Title 19 that you're precluded from going to the federal court of claims. How does that apply here? It doesn't. Why not? That case specifically says that a specific and comprehensive scheme for administration, judicial review, is sufficient to deprive the court of federal claims of jurisdiction over taking its claim arising from a customs forfeiture. We're bound by that, depending on me. I don't know, to be perfectly honest, but I'd like to respond as best I can. The customs people have a procedure. They say, you can elect, you can go to court, you can wait and have the matter referred to, have the matter referred to federal district court, or you can leave everything to our discretion. Let me tell you about their procedure. It's no procedure at all. No one in 10 years has ever succeeded in that. If you give the matter to customs in a situation where someone says it's a trademark, it's a done deal. Their word counts for everything. No right-minded person would go to that procedure. And if we were allowed to present evidence, we would show you that's a sham procedure
. I've been doing customs work a long time. I know hundreds of cases. No one in his right mind would go to that procedure. Well, thank you. Well, let's... I think that's the best of my time. You have, but we'll restore two minutes for a rebuttal in the event that you need it. Thank you. You're welcome. Ms. Cannelli? May it please the court. This court should affirm the decision of the United States Court of Federal Claims dismissing this case because the lower court's tucker act jurisdiction to entertain the case was preempted. As this court has already mentioned, this court is bound by the Vereda decision. And this court has firmly held that tucker act review is preempted where Congress has provided a specific and comprehensive scheme for administrative and judicial review of the claim in another form
. Before addressing the merits of this claim, I think the issue has to be addressed whether the court of federal claims actually had jurisdiction to entertain this claim in the first place. Judicial review of seizures and forfeatures. Ms. Cannelli, what if the administrative and judicial program, which is established, as Mr. E. Tend points out, is not really very effective? Well, Your Honor, I don't believe that effectiveness is an exception to the rule that if a specific and comprehensive scheme for administrative and judicial review of the claim has been delegated to another form. There's no exception for effectiveness. What about due process? Well, first of all, Your Honor, two things about Acadia's due process claims. First of all, they voluntarily dismiss their due process claims before the lower court. And the court of federal claims does not have jurisdiction to review due process claims because the due process clause is not a money mandating provision. No, but aside from that, if in fact the Congress does establish a process that says you can go through the administrative agency and then you can go to district court. But for the past 50 years, anyone who's tried has not been successful. Is that really providing due process for the particular parties at that point? Your Honor, I think that would depend upon the particular facts of circumstances. Let's assume that no one's ever been successful under the procedures. I don't think there it can just be inferred that there's a due process violation or somehow due process is not... There's no due process by the scheme that's been laid out based upon the fact that 50 people or so have not been successful. I think it would depend upon the circumstances of those cases. Perhaps they haven't been successful because customs, the agency, has been quite diligent in bringing their forfeiture proceeding cases. And only bringing cases which they've insured have probable cause and certification marks said they have insured our indeed counterfeit. Perhaps customs has only brought cases in all those 50 cases that they had a strong case. And that's why they haven't been successful. I don't think it necessarily can be inferred that there's no due process. Does Congress have the constitutional ability to select one or over another to provide for a takings type of a process? They say you can take it to the district court but you can't take it to the court if I don't claim. Can they do that? Yes, they can do that, Your Honor. I believe that they have done that in a number of statutes where they specifically delegated jurisdiction over certain types of claims in one court. And that's where it should be heard and not in the claims court. I think that an issue here is that in order for a takings claim to be successful, it has to be determined that customs seizure was a mistake or improper. And that's a determination that has to be made by the district court. I think their claim is broader than that. They would say I think that it is necessarily predicated on the unlawfulness of the initial seizure but the possession for an unreasonable period of time of the goods without regard to whether the initial seizure was lawful although they do claim that the initial seizure was unlawful
.. There's no due process by the scheme that's been laid out based upon the fact that 50 people or so have not been successful. I think it would depend upon the circumstances of those cases. Perhaps they haven't been successful because customs, the agency, has been quite diligent in bringing their forfeiture proceeding cases. And only bringing cases which they've insured have probable cause and certification marks said they have insured our indeed counterfeit. Perhaps customs has only brought cases in all those 50 cases that they had a strong case. And that's why they haven't been successful. I don't think it necessarily can be inferred that there's no due process. Does Congress have the constitutional ability to select one or over another to provide for a takings type of a process? They say you can take it to the district court but you can't take it to the court if I don't claim. Can they do that? Yes, they can do that, Your Honor. I believe that they have done that in a number of statutes where they specifically delegated jurisdiction over certain types of claims in one court. And that's where it should be heard and not in the claims court. I think that an issue here is that in order for a takings claim to be successful, it has to be determined that customs seizure was a mistake or improper. And that's a determination that has to be made by the district court. I think their claim is broader than that. They would say I think that it is necessarily predicated on the unlawfulness of the initial seizure but the possession for an unreasonable period of time of the goods without regard to whether the initial seizure was lawful although they do claim that the initial seizure was unlawful. I think both elements are part of their claim. Don't you understand it that way? I do, Your Honor. And if I can address the unreasonable delay. Well, go ahead then. I have a question at the end. In this case, Acadia alleges that there wasn't unreasonable delay but under the statute, customs has up to five years to determine whether or not to initiate a forfeiture proceeding. In this case, customs decided to initiate a forfeiture proceeding within four years. The case was then, the party then entered into a stipulation a year later dismissing the case together with each party to bear its own fees and costs. So in terms of Acadia's argument that there was an unreasonable delay, there was no unreasonable delay here. And Acadia's argument that there's no evidence that the government spent even five minutes determining whether the seizure would be proper or not, that's just entirely not true. I mean, I'm aware of the fact that the agency's attorneys even went down to the warehouse. I believe with Acadia's counsel to look at their products. And this wasn't an easy case where it was just one component, one product where it could just be examined whether or not the UL marks were appropriately placed there. My understanding is that these products were multiple components and maybe one component had the authority to use the UL mark. But that component attached to another component may not have the authority to use the UL mark. But all of these are arguments that are not really part of the cases that comes to us now as I understand it
. I think both elements are part of their claim. Don't you understand it that way? I do, Your Honor. And if I can address the unreasonable delay. Well, go ahead then. I have a question at the end. In this case, Acadia alleges that there wasn't unreasonable delay but under the statute, customs has up to five years to determine whether or not to initiate a forfeiture proceeding. In this case, customs decided to initiate a forfeiture proceeding within four years. The case was then, the party then entered into a stipulation a year later dismissing the case together with each party to bear its own fees and costs. So in terms of Acadia's argument that there was an unreasonable delay, there was no unreasonable delay here. And Acadia's argument that there's no evidence that the government spent even five minutes determining whether the seizure would be proper or not, that's just entirely not true. I mean, I'm aware of the fact that the agency's attorneys even went down to the warehouse. I believe with Acadia's counsel to look at their products. And this wasn't an easy case where it was just one component, one product where it could just be examined whether or not the UL marks were appropriately placed there. My understanding is that these products were multiple components and maybe one component had the authority to use the UL mark. But that component attached to another component may not have the authority to use the UL mark. But all of these are arguments that are not really part of the cases that comes to us now as I understand it. I mean, I think that given the posture of the case, you have to take the case on the assumption that the four years of delay was simply inexcusable and unreasonable delay as a matter of fact. And your argument has to be that notwithstanding that assumed fact, you still win the case, correct? I mean, you can't come to us now and say, well, it was justified delay because that's not part of the case as it came up to us on the trial court's ruling as I understand. That's correct, Your Honor. You're correct in that the trial court never made a ruling as to whether the delay was reasonable. So as far as the trial court was concerned, you win this case even if this is outlandish conduct by the government in delay. We win the case in the sense that the court of federal claims did not have jurisdiction in the first place to review the case. That's your contention. So without regard to any of the circumstances that you've just been discussing. In terms of the jurisdictional argument, yes. But in terms of, I guess I would just like to address what you've been discussing regarding an unreasonable delay that has to be taken as true that the government that there wasn't unreasonable delay. I think that to find that would contradict the statute that allows customs five years to determine whether or not to bring a forefisher. Well, the statutes of limitations don't constitute if I understand them a congressional finding that in all cases the delay up to the date that the Statue of Limitations expires is as a matter of law reasonable. You could have the Statue of Limitations is generally there to give you an outside limit so that in the most difficult case five years may be a permissible period. That doesn't necessarily mean that in the simplest case where one could simply look at the product and then three minutes determine whether it was forefitterable or not that one could delay for four years and 350 days and that'd be fine. You wouldn't be making such an argument with respect to a delay that was unjustifiable on any ground other than that the forefisher proceeding was filed within the Statue of Limitations. I think that a number of factors would have to be taken into account in this case
. I mean, I think that given the posture of the case, you have to take the case on the assumption that the four years of delay was simply inexcusable and unreasonable delay as a matter of fact. And your argument has to be that notwithstanding that assumed fact, you still win the case, correct? I mean, you can't come to us now and say, well, it was justified delay because that's not part of the case as it came up to us on the trial court's ruling as I understand. That's correct, Your Honor. You're correct in that the trial court never made a ruling as to whether the delay was reasonable. So as far as the trial court was concerned, you win this case even if this is outlandish conduct by the government in delay. We win the case in the sense that the court of federal claims did not have jurisdiction in the first place to review the case. That's your contention. So without regard to any of the circumstances that you've just been discussing. In terms of the jurisdictional argument, yes. But in terms of, I guess I would just like to address what you've been discussing regarding an unreasonable delay that has to be taken as true that the government that there wasn't unreasonable delay. I think that to find that would contradict the statute that allows customs five years to determine whether or not to bring a forefisher. Well, the statutes of limitations don't constitute if I understand them a congressional finding that in all cases the delay up to the date that the Statue of Limitations expires is as a matter of law reasonable. You could have the Statue of Limitations is generally there to give you an outside limit so that in the most difficult case five years may be a permissible period. That doesn't necessarily mean that in the simplest case where one could simply look at the product and then three minutes determine whether it was forefitterable or not that one could delay for four years and 350 days and that'd be fine. You wouldn't be making such an argument with respect to a delay that was unjustifiable on any ground other than that the forefisher proceeding was filed within the Statue of Limitations. I think that a number of factors would have to be taken into account in this case. Right, but the Statue of Limitations wouldn't terminate the question of reasonableness. I mean, I think that the 8850 and Vaughn Newman case is stand for that proposition surely. I think your correct your honor. So the Statue of Limitations argument kind of goes by the board, right? Right. Well, I think that it's definitely a factor that should be weighed towards the reasonableness. Okay. Okay. I believe the Acadia, the opportunity to go to another court other than the Court of Federal claims. Well, you're prior to the actual forefisher, let's say. Prior to the, prior to the initiation of the forefisher. Right. They had been four, four and a half whatever years with their good sitting in a warehouse somewhere and what your argument is in part that there's this statutory structure that commits to another tribunal, the authority and the responsibility for deciding these questions. Where, where should they have gone in your view? Where they should have gone your honor is if they believe that the seizure was improper. They should not have entered into the stipulation. The day before the stipulation. The day before the stipulation
. Right, but the Statue of Limitations wouldn't terminate the question of reasonableness. I mean, I think that the 8850 and Vaughn Newman case is stand for that proposition surely. I think your correct your honor. So the Statue of Limitations argument kind of goes by the board, right? Right. Well, I think that it's definitely a factor that should be weighed towards the reasonableness. Okay. Okay. I believe the Acadia, the opportunity to go to another court other than the Court of Federal claims. Well, you're prior to the actual forefisher, let's say. Prior to the, prior to the initiation of the forefisher. Right. They had been four, four and a half whatever years with their good sitting in a warehouse somewhere and what your argument is in part that there's this statutory structure that commits to another tribunal, the authority and the responsibility for deciding these questions. Where, where should they have gone in your view? Where they should have gone your honor is if they believe that the seizure was improper. They should not have entered into the stipulation. The day before the stipulation. The day before the stipulation. Let's say, or the day before the forefisher was filed. Let's start there. Where should they, what was their remedy? I think the remedy was laid out in the letter that was sent to them. That was to ask for remission. Correct, Your Honor. Well, the remission is a, as you know, it's just an optional remedy that customs can say, nope, denied. And that's it, as I understand it. What judicial remedy do they have other than the grace of customs through remission? I think that their only judicial remedy would have been to proceed with the forefisher action. But they, no, they can't proceed with the forefisher action. It's the government that does the forefisher. Right. But if they have done. If the government had moved to dismiss the forefisher proceeding, they can have it. No, no, no, no. We're back at the pre-forefisher. Before the forefisher is filed
. Let's say, or the day before the forefisher was filed. Let's start there. Where should they, what was their remedy? I think the remedy was laid out in the letter that was sent to them. That was to ask for remission. Correct, Your Honor. Well, the remission is a, as you know, it's just an optional remedy that customs can say, nope, denied. And that's it, as I understand it. What judicial remedy do they have other than the grace of customs through remission? I think that their only judicial remedy would have been to proceed with the forefisher action. But they, no, they can't proceed with the forefisher action. It's the government that does the forefisher. Right. But if they have done. If the government had moved to dismiss the forefisher proceeding, they can have it. No, no, no, no. We're back at the pre-forefisher. Before the forefisher is filed. The government holds on to the goods, the government ceases the goods, and they hold them for four and a half years. During the course of that fore and a half years, a Katie says, when is this ever going to end? How do we get our goods back? What do they do? What is the government's position as to what they should have done under this judicial scheme that you say trumps the court of federal claims remedy? I don't know the answer to that, Your Honor. I don't know if they could have sought some kind of a declaratory judgment in district court to determine whether the forefisher was proper or not. I don't have an answer to that. My answer would be that one of the things that could have been done would be for customs as they did in this case who properly have brought these forefisher proceedings. That that's customs choice, not a Katie's choice. The question is what a Katie could have done. You're basically saying, I'm not sure you're right in saying that they were stuck because there is language and a couple of Supreme Court cases that says they can go into district court and they can ask for a ruling from the district court that the holding of the goods is unreasonable. I mean, just the government, well, it is. Well, the government would have just put you in the spot and hitting you with that. The government wouldn't disagree with those cases, Your Honor. I'm just not aware of those cases at this point standing here before you. But if that is what the case is hold, then that would be a Katie's recourse to have done that, to have followed that procedure. As stated before, Your Honor, Katie had the opportunity to adjudicate this claim in the district court. The government initiated forefisher proceeding in the district court within four years of seizing the cooler fans. And as I stated before, that this was well within the statutory deadline of five years
. The government holds on to the goods, the government ceases the goods, and they hold them for four and a half years. During the course of that fore and a half years, a Katie says, when is this ever going to end? How do we get our goods back? What do they do? What is the government's position as to what they should have done under this judicial scheme that you say trumps the court of federal claims remedy? I don't know the answer to that, Your Honor. I don't know if they could have sought some kind of a declaratory judgment in district court to determine whether the forefisher was proper or not. I don't have an answer to that. My answer would be that one of the things that could have been done would be for customs as they did in this case who properly have brought these forefisher proceedings. That that's customs choice, not a Katie's choice. The question is what a Katie could have done. You're basically saying, I'm not sure you're right in saying that they were stuck because there is language and a couple of Supreme Court cases that says they can go into district court and they can ask for a ruling from the district court that the holding of the goods is unreasonable. I mean, just the government, well, it is. Well, the government would have just put you in the spot and hitting you with that. The government wouldn't disagree with those cases, Your Honor. I'm just not aware of those cases at this point standing here before you. But if that is what the case is hold, then that would be a Katie's recourse to have done that, to have followed that procedure. As stated before, Your Honor, Katie had the opportunity to adjudicate this claim in the district court. The government initiated forefisher proceeding in the district court within four years of seizing the cooler fans. And as I stated before, that this was well within the statutory deadline of five years. In addition, the district court never reached the merits of whether the government seizure of a Katie's cooler fans were proper or whether a Katie was entitled compensation. And that's a question that cannot be answered by the court of federal claims. That's something that jurisdiction specifically lies within the district court. Could a Katie had gone to district court under the federal towards claims that? After they got their product back? Your Honor, they may have been able to go to the district court, alleging a tort under, under perhaps an exception under the, the towards act. Contrary to a Katie's argument, because this is almost a conversion, is it an property up to a point? They were deprived of the use of the property for four and a half, five years. It's true, Your Honor, that the way a Katie has worded their claims, their claims do sound in tort. And that was another one of our arguments that the court did not have jurisdiction to review a Katie's claims because they did sound in tort. So you're saying that they could have gone under the federal towards claims act in federal district court? The government is not saying that a Katie has a tort claim that they may bring in the district court. What the government is saying that their claims do sound in tort. And if the federal towards claims act allows some kind of an exception that would allow them to bring their claim, then yes, they would have that recourse. Okay. Anything further? No, for these reasons, the decision of the United States Court of Federal claims should be affirmed. Thank you, Mr. Cleamy. Mr. Aiton, you have two minutes
. In addition, the district court never reached the merits of whether the government seizure of a Katie's cooler fans were proper or whether a Katie was entitled compensation. And that's a question that cannot be answered by the court of federal claims. That's something that jurisdiction specifically lies within the district court. Could a Katie had gone to district court under the federal towards claims that? After they got their product back? Your Honor, they may have been able to go to the district court, alleging a tort under, under perhaps an exception under the, the towards act. Contrary to a Katie's argument, because this is almost a conversion, is it an property up to a point? They were deprived of the use of the property for four and a half, five years. It's true, Your Honor, that the way a Katie has worded their claims, their claims do sound in tort. And that was another one of our arguments that the court did not have jurisdiction to review a Katie's claims because they did sound in tort. So you're saying that they could have gone under the federal towards claims act in federal district court? The government is not saying that a Katie has a tort claim that they may bring in the district court. What the government is saying that their claims do sound in tort. And if the federal towards claims act allows some kind of an exception that would allow them to bring their claim, then yes, they would have that recourse. Okay. Anything further? No, for these reasons, the decision of the United States Court of Federal claims should be affirmed. Thank you, Mr. Cleamy. Mr. Aiton, you have two minutes. The Federal Tart Claims Act, we quoted the app language. I can't imagine anything clearer in the English language and the statement that says no customs official, no officer in the United States, no agencies going to be held liable for detention of goods. We've looked, we've scanned the case law that's been discussed in our briefs, we know no case where the Federal Tart Claims Act is clear. Exceptions to customs has accommodated, but essentially damages for the lost goods. Our remedy because, in part because there's no such Federal Tart Claims Act provision is to come here. And that's what we've done and we've argued in our brief, I would emphasize it now. The Congress has never said when it legislated in the Federal Tart Claims Act in exception for customs. The lay customs, you're out. It's never said and you can't go through Tucker-Ark to a claims court to get an unjust taking. If it had said that, we'd have trouble. But the default court is court below. When other avenues like the Federal Tart Claims Act, a claims legislation is unavailable by explicit congressional legislation and no other prohibition, we come here. The default place. One last comment I was asked about, Vereda, I just noticed as opposing councils arguing, Vereda came out in 2001. Our goods were seized in 1997. It's ready
. The Federal Tart Claims Act, we quoted the app language. I can't imagine anything clearer in the English language and the statement that says no customs official, no officer in the United States, no agencies going to be held liable for detention of goods. We've looked, we've scanned the case law that's been discussed in our briefs, we know no case where the Federal Tart Claims Act is clear. Exceptions to customs has accommodated, but essentially damages for the lost goods. Our remedy because, in part because there's no such Federal Tart Claims Act provision is to come here. And that's what we've done and we've argued in our brief, I would emphasize it now. The Congress has never said when it legislated in the Federal Tart Claims Act in exception for customs. The lay customs, you're out. It's never said and you can't go through Tucker-Ark to a claims court to get an unjust taking. If it had said that, we'd have trouble. But the default court is court below. When other avenues like the Federal Tart Claims Act, a claims legislation is unavailable by explicit congressional legislation and no other prohibition, we come here. The default place. One last comment I was asked about, Vereda, I just noticed as opposing councils arguing, Vereda came out in 2001. Our goods were seized in 1997. It's ready. And one final point that I propose that the customs regs say, as part of their regs, they don't say come here, we'll give you quasi judicial or whatever. It's their regs say, you leave it to our discretion and we allow you if you make a written demand and say you're going to pay costs in the district court to go to court. And that's what we did. Thank you. Thank you, Mr. John. Thank you. Thank you. The case is submitted.
We'll hear argument next in number 05-5178, a KDA technology against the United States. We'll give you a moment to get your papers out and so forth. Okay, I think we're ready now. Straight time for a KDA. Is that the correct pronunciation of your name by the way? A time. A time. Very good. Thank you. The court below seemed to rush to judgment without heating the warnings and numerous taking cases that the fact intensive nature of just compensation, jurisprudence argues against the precipitous grant of 12-1, on before summary judgment motions. The facts here were not adequately explored by the lower court in order to determine what it was about the government's conduct that justified this extraordinary delay. The delay is a wasting asset, nor did the trial judge give adequate attention to the pleadings and the facts pled in the complaint. The right most egregiously applied the wrong analytical standard for, especially wrong analytical standards, especially when he talks about the public use and prevention of harm. Could I ask a question just at the outset? If you were to, let's say it was accepted that the case was very complex and that it was reasonable for the government to take whatever four years to determine the, go through the procedural steps necessary to advance the forfeiture. But in any event that there would be a delay would be deemed reasonable. Would there be a taking under those circumstances, do you think? No, I agree with you. So the taking depends on the unreasonableness of the conduct. Let me put it this way. When someone imports goods, he should expect that customs may look at his entry. He should also expect that customs may open up the box and look at the merchandise. He should expect that some kind of attention will be given to the matter. What he should, doesn't have to expect is that an ineffective, a ridiculous claim by an outsider, you will not even a claim donor but a certification and an inspection company. With the kind of vague material that appears on pages 14 through 16 of the government's brief and opposition, would by itself and with nothing more result in a delay of, well, altogether six years, four and a half years before they even move for forfeiture. So to answer the question more particularly, the ordinary incidents of living in a complex society, especially if you're going to do something that a regular course involves someone looking at your goods, it's fine, but this judge below should have asked the question, why the government need four and a half years? What he saw it's and the classic intersection between those kind of forfeiture cases and taking some analysis is a criminal situation where you've got a, obviously, a person criminal claim and you're not going to try your in-rem forfeiture matter for the vehicle, let's say, while you're prosecuting the criminal case, we don't have anything like that here. Norris is there the slightest indication that the government ever spent five minutes, five minutes of its own looking at making a determination whether these goods could bore a counterfeit mark, not five minutes, look at their forfeiture petition, pages 50 through 52 of the government's grief and opposition, we're page 51, I think it's paragraph four, all they say is that's in the blue briefcase. No, no, the government's in the room. The government's grief and opposition, I think it's, no, I'm sorry, it's in the blue briefcase. Yeah, I thought so. Fifty through 51, page 51, paragraph four. The government says, well, we think, essentially, they say we think that these marks are counterfeit because UL underwriters laboratory says so. That's all I've ever amounted to. They never made an independent determination because if I can focus your attention on something very, very basic, you've got a fan, a simple fan made by a manufacturer. The fan is to be used in a computer to cool. It's old technology when obsolete a long time ago, but in the early 90s, middle 90s, it was very viable. So you have this fan, you put a simple piece of metal over it, you sell it as a component, and UL has a special mark, reverse UR for components. So if you're the government and you want to say, is this a counterfeit mark? What you do is you look at the thing, you open up the cardboard, you take out a fan, it's only four and a half, five inches. You unscrew some screws, you look at it, and you see whether there is, the name of the manufacturer, and a UL mark. A UL reverse UR mark. And of course, the government has our documents showing that the fan manufacturer had a UL authorization. In fact, we didn't argue it extensively in the briefs, but anyone could see from the exhibits that you've got that the government produced, that the actual underwriters' laboratory approvals are noted in the invoices as part of the package. But that isn't the point. I'm getting too detailed. Mr. E. Todd, I have one question. With respect to your stipulated dispecial of the seizure action that was filed by the court, by the government, why didn't you pursue your fees and your cost in that case? Well, of course there were no costs. I mean, virtually no costs except maybe filing fees. It must have been some legal fees. No, well, that perhaps, but here's, that's a good question. I have a wonderful answer for you based upon law. You don't charge that much? No, no, no, no, no, no, no, no, no, no, that's not the point. You must charge a reasonable amount for your time. I do charge a reasonable amount. Thank you for your inquiry. If you look at Marshall Leasing, a case that we cited repeatedly, both in our opening brief and reply brief, it's a ninth-circuit case. And in the ninth-circuit, if you want to bring a due process type claim, if you want to get your goods back in circumstances in which the court says, well, you're really doing that in order to set up a stage for an unjust taking case, we're not going to allow you because for that you've got to go to the claims court. Look at page 1099 of Marshall Leasing and you've got your answer there. On that page, I'm going to quote from the case, the only value to a balance of the declaratory judgment they see would have been to serve as a raise to the court in the claims court where they could obtain money damages. Then the opinion continues citing another ninth-circuit case in which the court held that it would not take jurisdiction over a claim seeking an order requiring payment to funds improperly deferred, reasoning that the only impact of the equitable relief would be monetary. In other words, once the government gives you back your goods, you go to the ninth-circuit, you say, well, you know what? I still want to litigate my entitlement. I've got the goods back. Of course, they were worthless by then. They had been worthless some time. Oh, well, the ninth-circuit would say, you're just setting us up for a raise to the court of claim if you win so that you can run over to the claims court and get a monetary damage. So that wouldn't have worked if I can enlarge upon your claim why I didn't try to get the main issues adjudicated in the district court, Northern District of California, when the government said, you're your goods back. Once you get your goods back, I could have perhaps tried to say, no, I don't want the goods back. I want to litigate, but the court wouldn't have let me litigate that. What about some early point in this process? Yes. You could have gone into the district court and said, I'm sorry, you could have gone into the district court. No, no, I could. Well, again. Well, the Supreme Court says you could. So, if 8850 has a little discussion of this as you may be familiar with the passage I'm talking about, where they say, and let me just so that we're clear, I think I actually got the language, a claim that is able to trigger rapid filing of a forfeiture action if he desires it. He can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. So, given that the Supreme Court has said you can do it, it seems to me that it's an option that would be open to you. May I, may I please respond? Sure. There's a major case, the only case that dealt with our statutory argument is this computer towers case, the 10,500 computer towers case. Let me tell you that I started out as counsel in that case, and I did just that. Okay. I said the government wants to wait until it's five years or out nearly so we can't wait. I filed a petition to accelerate the Claretary relief. Let's get on with it. Hurry up. Well, again, in the ninth circuit, they had all the judges submitted an unpublished decision called the Armstrong case, and they all relied on it, and then they all cite this Armstrong case to say, if you've got a government forfeiture case, you can't go into this court and accelerate the government's forfeiture petition. I tried it. I was thrown out of court. Do they address the 8850 language in the Armstrong case? Did you cite it to them? No. They simply said, forfeiture case like this means that the government must be allowed its time to bring its case, and you can't accelerate it by bringing the Claretary action. I was thrown out. Even if it's an unreasonable period of time. Well, of course it was, but we were screaming with them. Of course it's unreasonable. It's extremely unreasonable. And what's unreasonable about it also is the tactics that's involved. You got a wasting asset. Look, suppose this were flowers or tomatoes. Can the government really wait more than a reasonable time before it says, you know what? Maybe we should forfeit this or maybe we should give it back to you. If you hype up the fact and have a commonly acceptable wasting asset, you'll understand what I mean. So I want to get on to this point. Nothing was decided in the Northern District case. The government gave us back the goods, and at that time the government understood and we understood that the goods were values. Everybody understood. They had become values a long time ago. The government knew because we had been pestering them. We said, look, we've got licenses. We've got licenses. This is a bunch of belonging. We have licenses. No, no. The government waited. Now, the government chooses sides. It intervenes in a private dispute. I mean, this isn't like a criminal case. Here the government could choose between you and us. And at all times it plumped in favor of you. Well, we come to this court and we say, well, we didn't get an adjudication before. Now we want unjust taking and decide whatever you have to decide. If it's going to turn out that you have to decide even now whether the marks were good, fine, decide. But there's an unjust taking here. No probable cause, no forfeiture. And if this judge would simply have explored the facts, he would have seen how unreasonably we were treated. And that our only recourse now is to come here. Of course, the government always says you're in the wrong court. You're always in the wrong court. Go back to the district court. There's nothing to go back to the district court. We want this court to court below if this court will agree with us to allow the record to be made to explore the facts. To show all the things that support showing how unreasonable the government was from day one until the end. And of course, when the government took this item, when the government's conduct did what it did, it totally deprived us of the value. If the government had at least allowed a mini hearing, if it had gone to the court and say, well, we could probably cause. We need more time, whatever, whatever. Mr. Eton, with respect to the Varada case, our Varada case, it was issued saying in effect that if you have administrative and judicial remedies under Title 19 that you're precluded from going to the federal court of claims. How does that apply here? It doesn't. Why not? That case specifically says that a specific and comprehensive scheme for administration, judicial review, is sufficient to deprive the court of federal claims of jurisdiction over taking its claim arising from a customs forfeiture. We're bound by that, depending on me. I don't know, to be perfectly honest, but I'd like to respond as best I can. The customs people have a procedure. They say, you can elect, you can go to court, you can wait and have the matter referred to, have the matter referred to federal district court, or you can leave everything to our discretion. Let me tell you about their procedure. It's no procedure at all. No one in 10 years has ever succeeded in that. If you give the matter to customs in a situation where someone says it's a trademark, it's a done deal. Their word counts for everything. No right-minded person would go to that procedure. And if we were allowed to present evidence, we would show you that's a sham procedure. I've been doing customs work a long time. I know hundreds of cases. No one in his right mind would go to that procedure. Well, thank you. Well, let's... I think that's the best of my time. You have, but we'll restore two minutes for a rebuttal in the event that you need it. Thank you. You're welcome. Ms. Cannelli? May it please the court. This court should affirm the decision of the United States Court of Federal Claims dismissing this case because the lower court's tucker act jurisdiction to entertain the case was preempted. As this court has already mentioned, this court is bound by the Vereda decision. And this court has firmly held that tucker act review is preempted where Congress has provided a specific and comprehensive scheme for administrative and judicial review of the claim in another form. Before addressing the merits of this claim, I think the issue has to be addressed whether the court of federal claims actually had jurisdiction to entertain this claim in the first place. Judicial review of seizures and forfeatures. Ms. Cannelli, what if the administrative and judicial program, which is established, as Mr. E. Tend points out, is not really very effective? Well, Your Honor, I don't believe that effectiveness is an exception to the rule that if a specific and comprehensive scheme for administrative and judicial review of the claim has been delegated to another form. There's no exception for effectiveness. What about due process? Well, first of all, Your Honor, two things about Acadia's due process claims. First of all, they voluntarily dismiss their due process claims before the lower court. And the court of federal claims does not have jurisdiction to review due process claims because the due process clause is not a money mandating provision. No, but aside from that, if in fact the Congress does establish a process that says you can go through the administrative agency and then you can go to district court. But for the past 50 years, anyone who's tried has not been successful. Is that really providing due process for the particular parties at that point? Your Honor, I think that would depend upon the particular facts of circumstances. Let's assume that no one's ever been successful under the procedures. I don't think there it can just be inferred that there's a due process violation or somehow due process is not... There's no due process by the scheme that's been laid out based upon the fact that 50 people or so have not been successful. I think it would depend upon the circumstances of those cases. Perhaps they haven't been successful because customs, the agency, has been quite diligent in bringing their forfeiture proceeding cases. And only bringing cases which they've insured have probable cause and certification marks said they have insured our indeed counterfeit. Perhaps customs has only brought cases in all those 50 cases that they had a strong case. And that's why they haven't been successful. I don't think it necessarily can be inferred that there's no due process. Does Congress have the constitutional ability to select one or over another to provide for a takings type of a process? They say you can take it to the district court but you can't take it to the court if I don't claim. Can they do that? Yes, they can do that, Your Honor. I believe that they have done that in a number of statutes where they specifically delegated jurisdiction over certain types of claims in one court. And that's where it should be heard and not in the claims court. I think that an issue here is that in order for a takings claim to be successful, it has to be determined that customs seizure was a mistake or improper. And that's a determination that has to be made by the district court. I think their claim is broader than that. They would say I think that it is necessarily predicated on the unlawfulness of the initial seizure but the possession for an unreasonable period of time of the goods without regard to whether the initial seizure was lawful although they do claim that the initial seizure was unlawful. I think both elements are part of their claim. Don't you understand it that way? I do, Your Honor. And if I can address the unreasonable delay. Well, go ahead then. I have a question at the end. In this case, Acadia alleges that there wasn't unreasonable delay but under the statute, customs has up to five years to determine whether or not to initiate a forfeiture proceeding. In this case, customs decided to initiate a forfeiture proceeding within four years. The case was then, the party then entered into a stipulation a year later dismissing the case together with each party to bear its own fees and costs. So in terms of Acadia's argument that there was an unreasonable delay, there was no unreasonable delay here. And Acadia's argument that there's no evidence that the government spent even five minutes determining whether the seizure would be proper or not, that's just entirely not true. I mean, I'm aware of the fact that the agency's attorneys even went down to the warehouse. I believe with Acadia's counsel to look at their products. And this wasn't an easy case where it was just one component, one product where it could just be examined whether or not the UL marks were appropriately placed there. My understanding is that these products were multiple components and maybe one component had the authority to use the UL mark. But that component attached to another component may not have the authority to use the UL mark. But all of these are arguments that are not really part of the cases that comes to us now as I understand it. I mean, I think that given the posture of the case, you have to take the case on the assumption that the four years of delay was simply inexcusable and unreasonable delay as a matter of fact. And your argument has to be that notwithstanding that assumed fact, you still win the case, correct? I mean, you can't come to us now and say, well, it was justified delay because that's not part of the case as it came up to us on the trial court's ruling as I understand. That's correct, Your Honor. You're correct in that the trial court never made a ruling as to whether the delay was reasonable. So as far as the trial court was concerned, you win this case even if this is outlandish conduct by the government in delay. We win the case in the sense that the court of federal claims did not have jurisdiction in the first place to review the case. That's your contention. So without regard to any of the circumstances that you've just been discussing. In terms of the jurisdictional argument, yes. But in terms of, I guess I would just like to address what you've been discussing regarding an unreasonable delay that has to be taken as true that the government that there wasn't unreasonable delay. I think that to find that would contradict the statute that allows customs five years to determine whether or not to bring a forefisher. Well, the statutes of limitations don't constitute if I understand them a congressional finding that in all cases the delay up to the date that the Statue of Limitations expires is as a matter of law reasonable. You could have the Statue of Limitations is generally there to give you an outside limit so that in the most difficult case five years may be a permissible period. That doesn't necessarily mean that in the simplest case where one could simply look at the product and then three minutes determine whether it was forefitterable or not that one could delay for four years and 350 days and that'd be fine. You wouldn't be making such an argument with respect to a delay that was unjustifiable on any ground other than that the forefisher proceeding was filed within the Statue of Limitations. I think that a number of factors would have to be taken into account in this case. Right, but the Statue of Limitations wouldn't terminate the question of reasonableness. I mean, I think that the 8850 and Vaughn Newman case is stand for that proposition surely. I think your correct your honor. So the Statue of Limitations argument kind of goes by the board, right? Right. Well, I think that it's definitely a factor that should be weighed towards the reasonableness. Okay. Okay. I believe the Acadia, the opportunity to go to another court other than the Court of Federal claims. Well, you're prior to the actual forefisher, let's say. Prior to the, prior to the initiation of the forefisher. Right. They had been four, four and a half whatever years with their good sitting in a warehouse somewhere and what your argument is in part that there's this statutory structure that commits to another tribunal, the authority and the responsibility for deciding these questions. Where, where should they have gone in your view? Where they should have gone your honor is if they believe that the seizure was improper. They should not have entered into the stipulation. The day before the stipulation. The day before the stipulation. Let's say, or the day before the forefisher was filed. Let's start there. Where should they, what was their remedy? I think the remedy was laid out in the letter that was sent to them. That was to ask for remission. Correct, Your Honor. Well, the remission is a, as you know, it's just an optional remedy that customs can say, nope, denied. And that's it, as I understand it. What judicial remedy do they have other than the grace of customs through remission? I think that their only judicial remedy would have been to proceed with the forefisher action. But they, no, they can't proceed with the forefisher action. It's the government that does the forefisher. Right. But if they have done. If the government had moved to dismiss the forefisher proceeding, they can have it. No, no, no, no. We're back at the pre-forefisher. Before the forefisher is filed. The government holds on to the goods, the government ceases the goods, and they hold them for four and a half years. During the course of that fore and a half years, a Katie says, when is this ever going to end? How do we get our goods back? What do they do? What is the government's position as to what they should have done under this judicial scheme that you say trumps the court of federal claims remedy? I don't know the answer to that, Your Honor. I don't know if they could have sought some kind of a declaratory judgment in district court to determine whether the forefisher was proper or not. I don't have an answer to that. My answer would be that one of the things that could have been done would be for customs as they did in this case who properly have brought these forefisher proceedings. That that's customs choice, not a Katie's choice. The question is what a Katie could have done. You're basically saying, I'm not sure you're right in saying that they were stuck because there is language and a couple of Supreme Court cases that says they can go into district court and they can ask for a ruling from the district court that the holding of the goods is unreasonable. I mean, just the government, well, it is. Well, the government would have just put you in the spot and hitting you with that. The government wouldn't disagree with those cases, Your Honor. I'm just not aware of those cases at this point standing here before you. But if that is what the case is hold, then that would be a Katie's recourse to have done that, to have followed that procedure. As stated before, Your Honor, Katie had the opportunity to adjudicate this claim in the district court. The government initiated forefisher proceeding in the district court within four years of seizing the cooler fans. And as I stated before, that this was well within the statutory deadline of five years. In addition, the district court never reached the merits of whether the government seizure of a Katie's cooler fans were proper or whether a Katie was entitled compensation. And that's a question that cannot be answered by the court of federal claims. That's something that jurisdiction specifically lies within the district court. Could a Katie had gone to district court under the federal towards claims that? After they got their product back? Your Honor, they may have been able to go to the district court, alleging a tort under, under perhaps an exception under the, the towards act. Contrary to a Katie's argument, because this is almost a conversion, is it an property up to a point? They were deprived of the use of the property for four and a half, five years. It's true, Your Honor, that the way a Katie has worded their claims, their claims do sound in tort. And that was another one of our arguments that the court did not have jurisdiction to review a Katie's claims because they did sound in tort. So you're saying that they could have gone under the federal towards claims act in federal district court? The government is not saying that a Katie has a tort claim that they may bring in the district court. What the government is saying that their claims do sound in tort. And if the federal towards claims act allows some kind of an exception that would allow them to bring their claim, then yes, they would have that recourse. Okay. Anything further? No, for these reasons, the decision of the United States Court of Federal claims should be affirmed. Thank you, Mr. Cleamy. Mr. Aiton, you have two minutes. The Federal Tart Claims Act, we quoted the app language. I can't imagine anything clearer in the English language and the statement that says no customs official, no officer in the United States, no agencies going to be held liable for detention of goods. We've looked, we've scanned the case law that's been discussed in our briefs, we know no case where the Federal Tart Claims Act is clear. Exceptions to customs has accommodated, but essentially damages for the lost goods. Our remedy because, in part because there's no such Federal Tart Claims Act provision is to come here. And that's what we've done and we've argued in our brief, I would emphasize it now. The Congress has never said when it legislated in the Federal Tart Claims Act in exception for customs. The lay customs, you're out. It's never said and you can't go through Tucker-Ark to a claims court to get an unjust taking. If it had said that, we'd have trouble. But the default court is court below. When other avenues like the Federal Tart Claims Act, a claims legislation is unavailable by explicit congressional legislation and no other prohibition, we come here. The default place. One last comment I was asked about, Vereda, I just noticed as opposing councils arguing, Vereda came out in 2001. Our goods were seized in 1997. It's ready. And one final point that I propose that the customs regs say, as part of their regs, they don't say come here, we'll give you quasi judicial or whatever. It's their regs say, you leave it to our discretion and we allow you if you make a written demand and say you're going to pay costs in the district court to go to court. And that's what we did. Thank you. Thank you, Mr. John. Thank you. Thank you. The case is submitted