The Federal Circuit heard oral argument earlier this month in Jenkins v. United States, a takings case that attracted two amicus briefs. In this case, the Federal Circuit is reviewing a determination by a district court that Jenkins is not entitled to compensation for the loss of his vehicles seized during a criminal investigation. Judges Lourie, Dyk, and Stark heard the oral argument. This is our argument recap.
Hampton Bruton argued for Jenkins. He began by arguing that the 5th Amendment’s takings clause requires compensation when the government physically appropriates property and does not return it. One judged asked when the alleged taking actually occurred. Bruton responded by arguing that the takings occurred when the government no longer had an investigative or forfeiture purpose. Another judge then asked how there is a taking in this case because the government had no control over the relevant impound lot. Bruton responded that precedent shows the government is always responsible for evidence it initially seizes until it returns that evidence. Moreover, he asserted, the magistrate judge found the government did not follow any forfeiture procedures.
The questioning then turned to abandonment. One judge asked whether, if the property had been abandoned, there would be a taking. Bruton responded that there would not be a taking. But abandonment, he argued, is not relevant because the district court specifically found Jenkins had not relinquished his property interest in both vehicles.
Melissa Burkland argued for the government. She began by pointing out that government submitted an affidavit of the impound lot owner. In the affidavit, she continued, the owner testified that the government’s hold on the cars was released ten days before Jenkins was sentenced.
A judge asked whether the government is arguing abandonment. Burkland responded that there is strong evidence for abandonment because there was notice to the property owner. Another judge then asked if there is still abandonment regardless of notice. In response, Burkland argued that Federal Rule of Criminal Procedure Rule 41 is critical here because it dictates that the relevant motion be brought within the jurisdiction where the property was seized. Jenkins, she argued, was in the wrong jurisdiction. Moreover, Burkland asserted, Jenkins brought his Rule 41 motion years after his criminal proceeding.
Next, a judge asked if there is an abandonment claim by the government and what the basis would be for it. Burkland responded by arguing that there is no clear requirement that the government or its agents hold onto property indeterminately. The government, she argued, does contend that the property was abandoned. Another judge asked if the burden is on the government to show abandonment. In response, Burkland indicated that there is no record on abandonment because the government’s argument below was that the taking lasted up and until the hold was released on the vehicles. Under the asset forfeiture manual, she argued, the government can look to an impound lot owner to provide the required notice.
In rebuttal, a judge asked if Jenkins agrees that if the property was abandoned by him, there would be no takings claim. Bruton responded by admitted that, if the factual findings supported it, then yes there would be no taking claim. But, he argued, that is not the case here. He then asserted the government has the burden to stay within the exception for a taking, and, he argued, they did not do so. As a result, he contended, the government waived or forfeited the argument.
We will report on the Federal Circuit’s disposition of this case.