not been passed upon in the first instance by the district court, we decline to reach the issue.”). ASSE is correct that the State Department could fail to meet its burden of demonstrating substantially justified administrative proceedings in the absence of a due process violation. (See Dkt. 54 at 15.) However, the fact that a due process violation has not been definitively found precludes $12,218 U.S. Currency from applying. Furthermore, there is no indication from subsequent cases that $12,218 U.S. Currency establishes a seminal, categorical Ninth Circuit rule for EAJA fees. Rather, that statement has only been cited twice. All three cases—$12,218 U.S. Currency and its two citations—presented particularly egregious due process violations. See $12,218 U.S. Currency, 957 F.2d at 1519 (<HOLDING>); Yang v. Shalala, 22 F.3d 213, 217 (9th Cir.
holding that government was not substantially justified in its litigation position where government conducted a poor investigation of claim failed to verify claimants story unreasonably delayed pursuing and processing litigation of forfeiture claim for thirteen months and where court ultimately found at trial which occurred four years after initial seizure that seized property had independent source and had not been used illegally holding that there was no fourth amendment seizure where delivery of package was not delayed because it is the extent of the interference with the defendants possessory interest in the property that determines whether a seizure has occurred recognizing that the government  must demonstrate the reasonableness not only of its litigation position but also of the agencys actions   holding that congress did not want the substantially justified standard to be read to raise a presumption that the government position was not substantially justified simply because it lost the case citations omitted holding that for the administrative position of the government to be substantially justified it must have a reasonable basis both in law and fact