Federal Circuit En Banc Petition in AmeriSource

The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States, No. 07-1521 (Fed. Cir. May 1, 2008). 

In that case, the Federal Circuit held that when an innocent party's property is seized for use in a criminal prosecution but never used as evidence, no Fifth Amendment taking has occurred even though the property was rendered valueless during the time the government possessed it.  The government seized a large quantity of legal prescription drugs in its investigation of a pharmacy but never used the drugs as evidence.  Although the drugs were eventually returned to the owner, they had expired in the interim.

The Federal Circuit agreed with the government's argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated.  Yes, paying for property seized as evidence may force the government to think about whether it should take the property, and to make choices.  But isn't this choice required by the self-executing nature of the Fifth Amendment? 

As a side note, compare the position of the federal government in AmeriSource with the Solicitor General's brief amicus curiae in Clark County v. Vacation Village, Inc., No. 07-373, which takes the position that requiring airport authorities to pay when they take airspace in flight paths won't substantially interfere with the nation's system of air travel. 

More on AmeriSource here.  Read the En Banc Petition here.  Thanks to Columbia Law School (one of my alma maters) Professor Ronald Mann for the heads-up.