Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:96-cv-00408-LAS

Document 170

Filed 05/09/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INNOVAIR AVIATION LIMITED, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 96-408C (Senior Judge Smith)

NOTICE OF SUPPLEMENTAL AUTHORITY Defendant, the United States, respectfully requests leave of the Court to file a copy of the decision issued by the United States Court of Appeals for the Federal Circuit, in Amerisource Corporation v. United States, Fed. Cir. No. 2007-5121 (May 1, 2008). In this recently issued decision in the area of Fifth Amendment takings law, the Federal Circuit explained that no compensable taking occurred when the United States refused to return the drugs seized from an innocent third party pharmaceutical distributor before they were rendered worthless, despite the fact that the United States did not introduce the drugs into evidence in any proceeding. The Federal Circuit concluded that limitations upon the Government's law enforcement powers should be construed in accordance with the Due Process Clause, not the Takings Clause. Accordingly, lawsuits, such as those filed by Amerisource Corporation, should be dismissed for failure to state a cause of action. This decision supports our arguments raised in the liability phase of this case that the Government's seizure and disposition of property pursuant to Government's exercise of its law enforcement powers is not a taking for "public use" in the context of the Takings Clause of the Fifth Amendment.1

We do not intend to discuss this Amerisource Corp. decision at the forthcoming oral argument on May 13, 2008. However, once the Court issues its decision on damages, we anticipate that we will file a motion for reconsideration of the Court's liability decision based

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Case 1:96-cv-00408-LAS

Document 170

Filed 05/09/2008

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For the reasons set forth above, the Court should grant this motion for leave to file this notice of supplemental authority. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General

/s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

/s/ Sheryl L. Floyd SHERYL L. FLOYD Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8278 Fax: (202) 514-8624 Attorneys for Defendant

MAY 9, 2008

upon this decision.

Case 1:96-cv-00408-LAS

Document 170

Filed 05/09/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 9th day of MAY, 2008, a copy of this "NOTICE OF SUPPLEMENTAL AUTHORITY" was filed e1ectronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing, through the Court's system.

/s/ Sheryl L. Floyd