[00:00:01] Speaker 00: Case number 16-7142, Chamin Kaplan, individually and naturally guardian, and guardian of plaintiffs MK1, ALK, MK2, CK, and EK et al. [00:00:16] Speaker 00: for the appellant, and versus the central bank of Islamic Republic of Iran, also known as Bank Markazi Jambouri, Islami Iran et al., Mr. Katz for the appellant, Mr. Frey for the appellee. [00:00:33] Speaker 04: In 2006, a period of about 34 days, Hezbollah launched thousands of rockets into civilian areas in Israel with the sole intent of terrorizing the civilian population, killing, maiming, injuring, instilling fear in the civilian population. [00:00:50] Speaker 04: They packed into those rockets thousands of steel ball bearings, four millimeters, six millimeters, depending on the rocket. [00:00:58] Speaker 04: The sole purpose of which was to hurt people. [00:01:02] Speaker 04: Those steel ball bearings don't do anything to harden military objects, structures and tanks and whatnot. [00:01:07] Speaker 04: They don't have any military objective at all. [00:01:09] Speaker 04: The purpose of the bearings again was to hurt people. [00:01:14] Speaker 04: The plaintiffs are those victims and their families seeking relief under the anti-terrorism act. [00:01:20] Speaker 04: Yeah, the terrorism act, of course, has an exception, the act of war exception, that animates much of this litigation. [00:01:25] Speaker 04: The district court decided that these attacks, these clear protests, acts of terrorism, were nonetheless acts of war, because they coincided with the war, what the district court referred to as a war happening elsewhere, and resolved the case on that basis despite not reaching personal jurisdiction. [00:01:44] Speaker 04: The Supreme Court has made clear, and this Court has made clear many times, you can't do that. [00:01:48] Speaker 04: You first have to establish, you with the district court, has to first establish your right to declare a law, your right to adjudicate, [00:01:57] Speaker 04: your right to jurisdiction before actually adjudicating, before declaring law. [00:02:02] Speaker 04: By skipping over personal jurisdiction, the district court's actions were ultraviolet and void on that ground. [00:02:09] Speaker 04: There's a lot of interesting things to talk about in this case. [00:02:12] Speaker 05: Do you think you have personal jurisdiction? [00:02:15] Speaker 04: Yes, Your Honor, but I think that the record is [00:02:18] Speaker 04: I think we've learned a lot since we put a record forth, I think, in 2010 on this issue. [00:02:26] Speaker 04: It's been quite a long time. [00:02:27] Speaker 04: And the case laws changed dramatically. [00:02:30] Speaker 04: But I think under existing law... Not in a helpful way for you. [00:02:33] Speaker 04: Well, yes and no. [00:02:34] Speaker 04: I mean, some of the cases have been helpful, some of the cases have been harmful. [00:02:38] Speaker 04: And certainly, as a matter of general jurisdiction, I think we can see that that's over. [00:02:44] Speaker 04: But I think that there are very significant avenues now that maybe didn't exist quite so clearly to argue that Hezbollah is deliberate, Hezbollah and the banks, or the appellees here, deliberate [00:02:56] Speaker 04: targeting of the United States. [00:02:58] Speaker 04: Let me clarify. [00:02:59] Speaker 04: The banks did not do it directly. [00:03:01] Speaker 04: It was a dating and event. [00:03:02] Speaker 04: But they knew what was going on. [00:03:03] Speaker 04: We paused it. [00:03:04] Speaker 04: And we think they have evidence to support that. [00:03:07] Speaker 04: And they were directly targeting the United States. [00:03:10] Speaker 04: And that fact is enough to create personal jurisdiction. [00:03:14] Speaker 04: Or so. [00:03:14] Speaker 04: And this would be a primary point on remand. [00:03:17] Speaker 04: But again, I do think that remand is necessary here, because the record is so incomplete. [00:03:22] Speaker 04: I'm sorry? [00:03:24] Speaker 03: Why is your standing to raise this? [00:03:26] Speaker 04: to raise personal jurisdiction? [00:03:28] Speaker 04: Yeah. [00:03:28] Speaker 04: Well, we didn't raise it in this visit deal. [00:03:30] Speaker 04: In Hezbollah, I feel it's slightly more complicated. [00:03:33] Speaker 04: But the banks raised it below. [00:03:35] Speaker 04: It was litigated below. [00:03:37] Speaker 04: But the banks raised it. [00:03:38] Speaker 04: The district court didn't reach it. [00:03:40] Speaker 01: But I think the question is, isn't there something a little bit odd about your raising an argument now as to which you think you should win? [00:03:49] Speaker 04: No, if you look ahead to what we're anticipating is going to happen. [00:03:54] Speaker 04: We hope to get a judgment against the banks that we hope to then enforce. [00:03:57] Speaker 04: Other victims of terrorism. [00:03:59] Speaker 04: A little background on how this works, if your honor's not aware. [00:04:04] Speaker 04: The Seventh Circuit has some verdict on this. [00:04:05] Speaker 04: It's very interesting. [00:04:06] Speaker 04: They call it a cruel race between victims of terrorism. [00:04:09] Speaker 04: Victims of terrorism get judgments that are very often not easily enforceable because there's no assets. [00:04:13] Speaker 04: They have to compete against each other to gain whatever assets are available, usually not enough, not enough to go around certainly. [00:04:21] Speaker 04: And these victims of terrorism have to fight against each other in these enforcement actions. [00:04:25] Speaker 04: It's extremely likely that another set of victims is going to try to get money that we've attempted to seize, saying our judgment's not enforceable, because personal jurisdiction was not established, and therefore the district court's decision was altered by our decision in void. [00:04:40] Speaker 01: But at that point, that's the enforcement proceeding, I guess, right? [00:04:44] Speaker 01: Correct. [00:04:44] Speaker 01: At that point, wouldn't personal jurisdiction be litigated anew? [00:04:47] Speaker 01: It's not as if at that point we know that there's a problem with the judgment because personal jurisdiction wasn't established. [00:04:54] Speaker 01: The question would be whether there was personal jurisdiction in the first suit. [00:04:57] Speaker 01: No? [00:04:58] Speaker 01: Is that not how it works? [00:05:00] Speaker 04: I suppose it could be raised, but I don't think so. [00:05:03] Speaker 04: I mean, we, this future court, would have to establish that the district judge below properly enter judgment. [00:05:12] Speaker 04: And if not, then the judgment is void. [00:05:16] Speaker 04: Determining after the fact, there's another court sitting and reviewing this in some other circuit. [00:05:21] Speaker 01: But suppose, for example, the second proceeding happens and the defendants, they can waive personal jurisdiction, right? [00:05:29] Speaker 04: Correct. [00:05:29] Speaker 01: So suppose in the second proceeding they just waive personal jurisdiction, any objection on personal jurisdiction grounds, can that not happen? [00:05:35] Speaker 04: I don't believe so. [00:05:36] Speaker 04: They can't waive it retroactively. [00:05:38] Speaker 04: At that point they would be waiving it vis-a-vis the enforcement proceeding, which they might not even be party to necessarily. [00:05:43] Speaker 04: I mean, it's their assets, but the money might be held by a bank, which is what typically happens. [00:05:47] Speaker 04: And then litigation is against the bank. [00:05:49] Speaker 04: But even if they were party, [00:05:51] Speaker 04: They could waive it as to the enforcement proceeding. [00:05:53] Speaker 04: I don't know if they can waive it retroactively as to this proceeding. [00:05:56] Speaker 01: And they haven't waived it as to this proceeding. [00:05:58] Speaker 04: And they haven't, correct. [00:05:59] Speaker 01: I mean, that's the more important point. [00:06:01] Speaker 01: So what would happen on remand? [00:06:02] Speaker 01: So is there any reason to think that on remand, suppose that it did go back for a personal jurisdiction, is there any reason to think that even if you prevailed on personal jurisdiction, that anything differently is going to happen with respect to the act of war exception? [00:06:13] Speaker 04: Well, I don't know. [00:06:15] Speaker 04: We certainly hope so. [00:06:17] Speaker 04: But I think that the two things, first of all... Would you make an argument? [00:06:20] Speaker 01: Would you have an argument that... [00:06:23] Speaker 01: the district court, that something, in other words, is there something in personal jurisdiction that's germane to the question of active war, or are we just going through an exercise, which I'm not saying we shouldn't go through the exercise, but are we just going through the exercise to get to the inevitable point that we're going to just face the same issue again? [00:06:36] Speaker 01: Two points. [00:06:37] Speaker 04: The Supreme Court, I think, this is Justice Ginsburg, I forget which case, determining jurisdiction is not a legal necessity. [00:06:43] Speaker 04: It's an obligation. [00:06:44] Speaker 04: And it has to do with the power of courts. [00:06:47] Speaker 04: You can't just skip it. [00:06:48] Speaker 04: And even though it might result in redundancy, [00:06:51] Speaker 04: Those are the rules, and the Supreme Court has been very, very clear about that. [00:06:54] Speaker 04: Second, I'm not saying this is what's going to happen. [00:06:58] Speaker 04: This is all a hypothesis. [00:06:59] Speaker 04: It has not been discussed. [00:07:00] Speaker 04: I'm being very clear. [00:07:01] Speaker 04: It has not been discussed internally among the attorneys. [00:07:04] Speaker 04: There are cases right now in New York involving the same defendants being mitigated regarding personal jurisdiction. [00:07:10] Speaker 04: It's possible, and this is my hypothesis and speaking individually, that the case might be transferred there. [00:07:16] Speaker 04: We might try to transfer the case to New York. [00:07:18] Speaker 04: We might oppose it. [00:07:19] Speaker 04: I don't know. [00:07:19] Speaker 04: But there is certainly a possibility that this case could wind up in New York. [00:07:23] Speaker 04: In which case, the act of war decision will be determined by a New York court. [00:07:27] Speaker 05: What's the status of personal jurisdiction in the New York courts? [00:07:30] Speaker 04: There's a motion for jurisdictional discovery currently pending. [00:07:36] Speaker 04: I'm not personally directly involved in the litigation, but from 30,000 feet, that's what I know. [00:07:41] Speaker 03: But you're assuming that this is jurisdictional in the Steele Code sense. [00:07:46] Speaker 03: We have case law to the contrary. [00:07:49] Speaker 04: Which case, Your Honor? [00:07:51] Speaker 03: for you in a minute. [00:07:53] Speaker 03: That is not the way the DC Circuit has been reading it, to put personal jurisdiction in the category of Article III jurisdiction. [00:08:02] Speaker 03: That would force us to follow this deal code notion that you must decide jurisdictional questions first. [00:08:11] Speaker 03: I'll give it to you in a minute. [00:08:13] Speaker 03: Apart from the standing, to me it really does sound like a bootstrapping [00:08:18] Speaker 03: request to get us back again to try again, and I'm not understanding how you have the standing to make the claim, but quite apart from that, the law in this circuit, there's a split in the circuits, but the law in this circuit doesn't tend to favor you. [00:08:34] Speaker 04: Your Honor, respectfully, I think the Forrest case is right on point and says exactly what we needed to say. [00:08:39] Speaker 04: I mean, if Your Honor has another case, it's more recent. [00:08:43] Speaker 04: Forrest was decided in 2016, I think. [00:08:45] Speaker 01: But that, I think it's a little, I'm not saying you necessarily lose on it, but I think it's a little bit different to say that you can do personal jurisdiction as a threshold matter at the outset. [00:08:54] Speaker 01: Right, that's not the question. [00:08:54] Speaker 01: As to say that you have to do personal jurisdiction in a steel company sense. [00:08:58] Speaker 01: They're not unrelated. [00:09:00] Speaker 03: We are at the contrary. [00:09:00] Speaker 03: Of course you can, but that's not the question. [00:09:04] Speaker 03: In that case, you're referring to as not apt. [00:09:07] Speaker 03: I'm talking about you must, is the steel code question. [00:09:10] Speaker 03: To the extent that we've opined on it, you said the opposite. [00:09:14] Speaker 04: Your Honor, respectfully, I wish to know which case you're referring to. [00:09:20] Speaker 04: Shalabi. [00:09:21] Speaker 04: Yeah, Shalabi. [00:09:24] Speaker 03: Let me just refresh my memory here. [00:09:33] Speaker 04: I can't find it now. [00:09:34] Speaker 01: I actually wrote some notes on that case as I was going through this. [00:09:37] Speaker 01: I guess you've got Sinocam. [00:09:38] Speaker 01: I'm sorry? [00:09:39] Speaker 01: I guess you've got Sinocam, the language from the Supreme Court's decision. [00:09:42] Speaker 01: Brett. [00:09:43] Speaker 04: Brett, I think Sinocam is extremely helpful. [00:09:45] Speaker 04: I don't know. [00:09:47] Speaker 05: That's a good one for you. [00:09:49] Speaker 05: And for us is, I think, probably helpful for you too. [00:09:53] Speaker 05: I mean, I'm not sure I agree with that, but I am sure that's not relevant, that I don't agree with it, because [00:10:02] Speaker 05: It looks like the Supreme Court has lumped personal jurisdiction in. [00:10:06] Speaker 04: I respectfully think the case law is fairly clear. [00:10:12] Speaker 03: No, it's not fairly clear. [00:10:14] Speaker 03: I mean, the sense of your argument is there may be some law subsequent to the decisions to which I'm pointing. [00:10:21] Speaker 03: including Lexmark, which should cause us to shift our position. [00:10:25] Speaker 03: But the law in the circuit now is not clearly in your favor. [00:10:28] Speaker 03: Quite the contrary. [00:10:30] Speaker 03: Now, you may have notes if you need to look at some of the notes. [00:10:33] Speaker 03: Yeah, right. [00:10:35] Speaker 03: Those cases do not support your position in saying that personal jurisdiction is among the jurisdictional requirements that must be decided under steel code. [00:10:45] Speaker 03: I understand there have been later developments [00:10:48] Speaker 03: And there's a way to play that out, and the panel will have to think about whether we're prepared to do that in Sonic Rim. [00:10:53] Speaker 03: And there's language in other cases, including Wexmore. [00:10:56] Speaker 03: But I'm not sure. [00:10:57] Speaker 04: And the Supreme Court's more recent cases than the North American. [00:11:00] Speaker 03: There's a way to try, and we would be changing the law of the circuit, though. [00:11:07] Speaker 04: Unfortunately, it's difficult for me to respond with the time I have right here. [00:11:13] Speaker 01: Can I ask you this question? [00:11:15] Speaker 01: So there's an alien tort statute claim in this case also. [00:11:18] Speaker 01: So you don't think that your argument as to act of war also applies to the alien tort statute? [00:11:25] Speaker 01: In other words, that because the district court went ahead and addressed the merits without reaching personal jurisdiction, that was a problem? [00:11:33] Speaker 04: I think that the Alien Torch Statute, is this my time including rebuttal time? [00:11:37] Speaker 04: I'm sorry. [00:11:37] Speaker 05: I will give you some rebuttal time. [00:11:38] Speaker 05: Don't worry about that. [00:11:39] Speaker 04: The Alien Torch Statute is a jurisdictional provision. [00:11:42] Speaker 04: So I think that that works a little bit differently, because when you're deciding the merits of the Alien Torch Statute, you are necessarily deciding jurisdiction. [00:11:49] Speaker 01: But does that mean, so is there any such thing as a 12b6 motion in an Alien Torch Statute case? [00:11:53] Speaker 04: That's a great question. [00:11:54] Speaker 04: They're filed all the time. [00:11:56] Speaker 01: I'm not sure that that's correct. [00:11:57] Speaker 01: But then it sounds like based on your argument, and maybe the other side sounds like they agree with you on this, [00:12:02] Speaker 01: that there's no such thing as a 12b6 argument, that everything is actually a 12b1 argument, necessarily because it's an Alien Torch Statute. [00:12:08] Speaker 04: Again, it's litigated all the time like that. [00:12:11] Speaker 01: I know it's litigated all the time like that, but is it right to litigate it like that? [00:12:14] Speaker 04: I'm not sure. [00:12:15] Speaker 04: I don't think so. [00:12:15] Speaker 04: But I don't know. [00:12:17] Speaker 01: Well, suppose you had a situation in which, for example, the defendant, you bring a suit, and the defendant doesn't even make an argument as to extraterritoriality. [00:12:27] Speaker 01: and then it goes up on appeal. [00:12:29] Speaker 01: It sounds to me like you'd acquiesce in the notion that there's been no waiver, there's been no forfeiture, because you can't waiver-forfeit subject matter jurisdiction, and you as the plaintiff would be in the position of having to litigate the question of extraterritoriality, even though by hypothesis the defendant never raised it. [00:12:50] Speaker 04: I mean, yes. [00:12:52] Speaker 04: That's the upshot of your view. [00:12:54] Speaker 04: Yes, but the caveat that I'm on the spot. [00:12:56] Speaker 04: I mean, I might think differently. [00:12:57] Speaker 05: That's just one of the weirdnesses of the alien tort statute. [00:13:01] Speaker 04: You can say that. [00:13:03] Speaker 04: It's a very, very unusual statute. [00:13:04] Speaker 01: And it makes it very difficult. [00:13:05] Speaker 01: Well, if you think that's right, I'm not necessarily sure that's right. [00:13:09] Speaker 01: OK. [00:13:09] Speaker 01: But it seems like the upshot of your view would be that. [00:13:12] Speaker 04: I think so. [00:13:13] Speaker 04: I mean, as I stand here right now, that sounds correct. [00:13:16] Speaker 04: Sure. [00:13:16] Speaker 04: I mean, as to extra-triality, it's the same argument that I made with regard to personal jurisdiction. [00:13:22] Speaker 04: The record is just inadequate, just based on, given all that we know now, things that have come out now that weren't known before, that are available to the court, publicly available things that are filed on dockets elsewhere, but were not part of the record, I don't know that this court can reach the issue just yet. [00:13:38] Speaker 04: I mean, we put in our briefs significant evidence that there's a great body of new evidence out there that just wasn't considered by the district court before us. [00:13:48] Speaker 04: I think that there, too, we men would be the proper approach to allow the district court to consider it in the first instance. [00:13:52] Speaker 01: But was there any effort to put that evidence into the record after Kiowa came down? [00:13:57] Speaker 04: After Kyobo, no. [00:13:59] Speaker 04: Please understand, though, that the motion was filed two years before Kyobo was decided. [00:14:04] Speaker 04: It was sitting dormant. [00:14:05] Speaker 04: We didn't know. [00:14:05] Speaker 04: We were very confused. [00:14:06] Speaker 04: I mean, the case kind of flew off the map. [00:14:09] Speaker 04: Kyobo came down. [00:14:10] Speaker 04: I forget if it was two months or four months, but one or the other. [00:14:13] Speaker 04: And the decision came down and caught us by surprise. [00:14:16] Speaker 04: Our opponents didn't put Kiobel in a letter noting subsequent authority. [00:14:21] Speaker 04: The case didn't exist as far as we knew. [00:14:24] Speaker 04: It was in a very strange state of limbo. [00:14:27] Speaker 01: Kiobel didn't exist? [00:14:27] Speaker 01: No, no, no. [00:14:29] Speaker 04: I was not personally involved. [00:14:32] Speaker 04: I think it was assigned to Chief Judge Roberts before his unfortunate situation. [00:14:40] Speaker 04: So we had no idea what was going on. [00:14:42] Speaker 04: It would have put us in a very strange position. [00:14:45] Speaker 04: to come to the court and say, here's this new authority, all this new evidence, in a case that a motion was pending for two years. [00:14:51] Speaker 04: I want to come back to one point that Judge Kavanaugh. [00:14:53] Speaker 03: Can you tell me how you have time? [00:14:55] Speaker 03: Is your appeal timely? [00:14:56] Speaker 03: Under Cambridge? [00:14:57] Speaker 04: Under Cambridge. [00:14:59] Speaker 04: 100%, Your Honor, for many reasons. [00:15:01] Speaker 04: And in 30 seconds, I can't. [00:15:04] Speaker 04: Take the time you need. [00:15:05] Speaker 04: We'll give you extra time. [00:15:06] Speaker 04: Don't worry. [00:15:06] Speaker 04: I appreciate that. [00:15:07] Speaker 04: I do want to come back to something Judge Kavanaugh asked me. [00:15:09] Speaker 03: The answer to Judge Kavanaugh's question is important. [00:15:12] Speaker 03: There's nothing else to talk about. [00:15:14] Speaker 03: Absolutely. [00:15:14] Speaker 03: time and I'm struggling with that. [00:15:18] Speaker 03: And there's a split. [00:15:19] Speaker 03: I'm going to just tell you the question to answer. [00:15:21] Speaker 03: There's a split in the circuits, fifth and ninth, I think it's ninth. [00:15:26] Speaker 03: Not the ninth circle position. [00:15:27] Speaker 03: The other one seems a more fitting resolution of the issue. [00:15:33] Speaker 03: And if I followed that, you [00:15:37] Speaker 03: Respectfully, I disagree. [00:15:40] Speaker 03: I'm sure you do. [00:15:41] Speaker 03: I'm asking you what's your answer. [00:15:44] Speaker 04: Even under the Fifth Circuit standard, which I would argue doesn't apply, but let's just hypothetically. [00:15:49] Speaker 04: Under the Fifth Circuit standard, nevertheless, I think that we would still survive. [00:15:53] Speaker 04: Because even though the Fifth Circuit held, if I remember correctly, that the clear express intent for future proceedings is not relevant, [00:16:02] Speaker 04: Nevertheless, Iran was served before the time to appeal had run. [00:16:08] Speaker 04: The time to appeal, I think, would have been February 17, 2014, and they were served on the 16th. [00:16:14] Speaker 04: We made it by one day, but we made it. [00:16:16] Speaker 04: Moreover, the procedural requirements for service were done many months before. [00:16:21] Speaker 04: It's a long process to serve a foreign state that doesn't have diplomatic relations. [00:16:25] Speaker 04: We completed our obligations, I think, by October of the prior year. [00:16:29] Speaker 04: way before the order was entered under Rule 58. [00:16:33] Speaker 04: So I believe even under the Fifth Circuit standard we win. [00:16:37] Speaker 04: I don't think the Fifth Circuit standard is the law of the circuit. [00:16:40] Speaker 04: Cambridge expressly reserved the question. [00:16:42] Speaker 03: Yeah, Cambridge merely reserved, but we may be looking at wrong dates. [00:16:48] Speaker 03: I don't see how you make it in time. [00:16:52] Speaker 03: with the service, that's perplexing to me. [00:16:55] Speaker 03: I'll have to go back and look at the dates again. [00:16:57] Speaker 04: I believe it's in our reply brief. [00:16:58] Speaker 04: I'll try to flip through. [00:17:00] Speaker 04: Unless you want to answer the questions on this particular issue, why don't you handle that? [00:17:04] Speaker 03: Cambridge asks whether or not the parties were served at the time of the order dismissing the claims, not at the time when the appeal ran out. [00:17:13] Speaker 03: You're answering the wrong question. [00:17:16] Speaker 03: If you're going to follow Cambridge, it asks whether [00:17:18] Speaker 03: The other parties were served at the time of the order dismissing the claims against the served defendants. [00:17:24] Speaker 03: That's the test. [00:17:25] Speaker 03: Your Honor, you're correct. [00:17:26] Speaker 03: Okay, so you don't meet that. [00:17:28] Speaker 03: You said they were served in time. [00:17:31] Speaker 03: Not under Cambridge, they were not. [00:17:33] Speaker 04: Under Rule 54, the fact that they were served in time makes them parties. [00:17:38] Speaker 03: We've got to follow the law of the circuit. [00:17:41] Speaker 03: If I'm following Cambridge, I've got to follow that test. [00:17:43] Speaker 03: It is not at odds with other federal rules, and you don't meet the test. [00:17:48] Speaker 03: So I'm trying to figure out how the appeal is timely. [00:17:51] Speaker 03: I can't get to any of the rest if you don't have a timely appeal. [00:17:55] Speaker 03: You're getting my concerns about the personal jurisdiction. [00:17:58] Speaker 04: Agreed. [00:17:59] Speaker 04: Cambridge was dealing with a very, very different factual scenario. [00:18:03] Speaker 04: And therefore, it didn't address this particular issue. [00:18:05] Speaker 03: Cambridge was talking about – Which issue didn't it address? [00:18:08] Speaker 04: The fact that this party was served before – the party was never served in Cambridge. [00:18:13] Speaker 04: In our case, the party was served before the time to appeal would have run. [00:18:16] Speaker 03: I'm saying that that makes it – The problem is they set a test that addresses that question. [00:18:21] Speaker 04: I don't believe it addresses that question for the simple reason that it would – that would have made it an opposite – or contrary to Rule 54. [00:18:29] Speaker 04: Well, 54 requires that there not be more than one party. [00:18:31] Speaker 04: And what Cambridge says is that you look at the served parties. [00:18:35] Speaker 04: Those are the relevant parties for the purposes of level 54. [00:18:37] Speaker 04: But what I'm saying is that you have to look at that period throughout the entire time that the appeal is available. [00:18:44] Speaker 04: Cambridge doesn't talk about that. [00:18:45] Speaker 04: I agree. [00:18:45] Speaker 04: But it's necessarily true, because at that point, there are now two parties. [00:18:49] Speaker 04: And we can't proceed with the appeal against one of those two parties at that point. [00:18:54] Speaker 04: So even though, even if the order had been entered and the time to appeal had started, it couldn't have possibly won on us. [00:19:01] Speaker 04: Because, again, by the time that would have happened, there was no other way. [00:19:06] Speaker 03: It could if you follow Cambridge. [00:19:07] Speaker 03: You're saying you don't like the implications of Cambridge, and I'm not sure that's terribly satisfying. [00:19:13] Speaker 03: I'm saying that Cambridge... Because the words in Cambridge are clear how you run the clock. [00:19:18] Speaker 04: Well, there is language in Cambridge that's clear, but then Cambridge goes on to say more. [00:19:22] Speaker 04: So I'm not sure how clear it is ultimately. [00:19:25] Speaker 04: It seems to contradict itself. [00:19:26] Speaker 03: I mean, it seems to me you're saying you don't really have an answer, and you like to play the footnote out to your advantage, but I don't see how you get around Cambridge. [00:19:35] Speaker 03: Incidentally, and I'll let you look at it over the bottle, I'm not going to waste any more of your time, the cases that I'm talking about from this circuit are post-synachrome. [00:19:45] Speaker 03: Which case? [00:19:47] Speaker 03: Kramer v. Gates and Shabali v. Hashanate. [00:19:52] Speaker 04: There's one other point regarding personal jurisdiction. [00:19:54] Speaker 03: And all say Steeleco applies only to Article III jurisdictional issues. [00:19:59] Speaker 03: And I'm not saying, I don't know whether that's right or wrong, if I was writing on a blank slate, but I know what we've said. [00:20:05] Speaker 03: And so the question is, do the law of the circuit clear in a way that disposes of what you raise? [00:20:12] Speaker 03: I know how I would argue. [00:20:16] Speaker 03: I'm not giving you the back of the hand of your argument, but I am saying to you, I am bound by circuit law, and there are a couple of opinions in this circuit that go against you. [00:20:26] Speaker 04: And the circuit is bound by the Supreme Court law. [00:20:27] Speaker 04: Now, you're telling me this is post-state sentencing. [00:20:29] Speaker 04: Yes. [00:20:30] Speaker 04: OK. [00:20:31] Speaker 04: I have to take a look. [00:20:33] Speaker 04: Judge Cavanaugh, you asked me about personal jurisdiction. [00:20:35] Speaker 05: Yeah, you had one additional point you wanted to make. [00:20:37] Speaker 04: I have one word. [00:20:38] Speaker 05: Yeah. [00:20:38] Speaker 04: Leachy. [00:20:39] Speaker 04: You asked me about subsequent changes in law. [00:20:41] Speaker 04: That's my answer. [00:20:41] Speaker 05: OK. [00:20:42] Speaker 04: I can explain to you. [00:20:43] Speaker 05: Is there any other questions? [00:20:45] Speaker 05: OK. [00:20:45] Speaker 05: We'll hear you on rebuttal. [00:20:46] Speaker 05: Thank you. [00:21:08] Speaker 02: Good morning. [00:21:08] Speaker 02: Good morning. [00:21:09] Speaker 02: Jeremy Fry for Bank Saderat Iran and Bank Saderat PLC. [00:21:14] Speaker 02: The district court should be affirming. [00:21:16] Speaker 02: He got it right. [00:21:17] Speaker 02: Judge Lamberth got it right. [00:21:18] Speaker 05: Let's start with personal jurisdiction. [00:21:20] Speaker 05: Yes, sir. [00:21:21] Speaker 05: You agree, I assume, that there is not personal jurisdiction in this case. [00:21:28] Speaker 02: We agree that there is not jurisdiction. [00:21:30] Speaker 05: You have not waived your personal jurisdiction? [00:21:32] Speaker 05: We have not, Your Honor. [00:21:33] Speaker 05: Nor are you waiving it here? [00:21:35] Speaker 02: We are not. [00:21:36] Speaker 05: Okay. [00:21:37] Speaker 05: And what do we do with the For Us case of our court, which seems to suggest [00:21:42] Speaker 05: And we have cases that point in different directions, but seems to suggest that we have to address personal jurisdiction or what the lower court does before hitting the merits. [00:21:55] Speaker 02: So there are several reasons why, Your Honor, there is no defect in hypothetical jurisdiction. [00:22:02] Speaker 02: that is presented in this case, even if this court should get so far as hypothetical jurisdiction because, in fact, this is a final order. [00:22:11] Speaker 05: So we'll get to that. [00:22:12] Speaker 05: Very good. [00:22:13] Speaker 05: I'm sequencing, and I'll just start with personal jurisdiction. [00:22:16] Speaker 05: But we'll get to that too. [00:22:17] Speaker 02: So there's several reasons why there is no issue with hypothetical jurisdiction. [00:22:22] Speaker 02: It is not the law, the circuit, that there's an issue. [00:22:25] Speaker 02: that was presented here. [00:22:27] Speaker 05: It is also that Judge... When you say that, how do you deal with 4S specifically, which is a 2016 case? [00:22:38] Speaker 02: Yes, Your Honor. [00:22:39] Speaker 02: So we believe that, with respect to 4S, that 4S is not controlling, and the reason is... 4S was very critical of the district court in that case for not addressing personal jurisdiction before the merits. [00:22:54] Speaker 02: So primarily, it's because the issue is not an Article III question. [00:22:58] Speaker 05: But for us didn't stop on that. [00:23:02] Speaker 05: And also because- You might think 4S is wrong, and I might agree with you, but 4S does- goes out of its way to be pretty tough on the district court there for not doing personal jurisdiction. [00:23:13] Speaker 02: So we think even on that reading of 4S that 4S is not a problem because Judge Winberg in this case specifically denied he was assuming hypothetical jurisdiction in his opinion. [00:23:24] Speaker 02: He may not have addressed personal jurisdiction as compared to subject matter jurisdiction. [00:23:29] Speaker 02: But this is unlike any other hypothetical jurisdiction case I think that's ever occurred because in this case, this opinion of Judge Lamberth says, I am not assuming hypothetical jurisdiction and there is therefore no basis [00:23:45] Speaker 02: to assume that the court turned around and did exactly what the court was denying. [00:23:50] Speaker 05: So you say he implicitly concluded that there was personal jurisdiction? [00:23:53] Speaker 02: He implicitly considered the issue of personal jurisdiction for the purposes of his power. [00:23:58] Speaker 02: That doesn't mean he found personal jurisdiction. [00:24:01] Speaker 02: That means only that whatever was required was satisfying. [00:24:06] Speaker 05: I don't understand that. [00:24:07] Speaker 05: Sure. [00:24:08] Speaker 02: So the court in this opinion said, I am not assuming hypothetical jurisdiction. [00:24:16] Speaker 02: And by that, he then went on to address subject matter jurisdiction. [00:24:20] Speaker 02: And by doing that, he did not fail to consider [00:24:26] Speaker 02: the power of the court with respect to the issues that were presented in the case. [00:24:32] Speaker 02: That's not to say he found whatever he needed to find. [00:24:35] Speaker 01: I don't understand what it means to say fail to consider, because that makes it sound like for subject matter jurisdiction, it's OK if you just consider it, but you don't resolve it. [00:24:43] Speaker 01: That can't be right. [00:24:44] Speaker 01: You have to actually decide that jurisdiction exists, right? [00:24:46] Speaker 01: It's not enough to say there is a jurisdictional question, I'll consider it, but I'm going to do the merits first. [00:24:52] Speaker 03: I don't think any of the cases provide any [00:25:19] Speaker 03: all the circuits that have gone that way. [00:25:21] Speaker 02: And that is correct. [00:25:22] Speaker 03: And I'm looking at Forrest, and Forrest, I mean, there's a lot of language in there, but they're not addressing Chivalry at all, or the other case. [00:25:30] Speaker 03: And it's not a large statement on personal jurisdiction. [00:25:35] Speaker 03: It focuses a lot on subject matter jurisdiction, which is an article-free issue. [00:25:41] Speaker 03: So I mean, maybe we have a split within our own circuit. [00:25:44] Speaker 03: I don't know. [00:25:44] Speaker 03: Maybe you can get that out of Forrest. [00:25:46] Speaker 03: But Forrest certainly does not [00:25:52] Speaker 01: I agree. [00:25:53] Speaker 01: Well, but how about this with those cases? [00:25:54] Speaker 01: Do you have a position on this, that if the alternative in those cases was a question of statutory jurisdiction? [00:26:01] Speaker 01: Right, so the choices between Article 3 and statutory jurisdiction, as I recall those cases, they stand for the proposition that we don't care about statutory jurisdiction what we care about Article 3, but they didn't specifically involve personal jurisdiction. [00:26:14] Speaker 01: I'm not saying that they don't resolve the question, they might actually, but at least it seems to me there's a possible distinction in that they involve the choice between Article 3 and statutory jurisdiction, whereas this one [00:26:26] Speaker 01: involves personal jurisdiction, which is somewhere in the middle, arguably. [00:26:29] Speaker 01: I don't know that that's true, but that's an argument. [00:26:31] Speaker 02: Thank you, Your Honor. [00:26:33] Speaker 05: And so once again... Well, I agree, I think, with what Judge Srinivasan just said, but that then leads us to for us, and that's personal jurisdiction. [00:26:45] Speaker 05: And that's our court, last year, saying at district court, [00:26:50] Speaker 05: aired significantly by not first considering personal jurisdiction before going to the merits. [00:26:56] Speaker 05: Now again, I'm not sure what I think about that, but I'm sure that's what it says. [00:27:02] Speaker 05: At least I was sure. [00:27:04] Speaker 05: I'm reading it right now again. [00:27:08] Speaker 05: And you don't think there's personal jurisdiction here. [00:27:11] Speaker 05: Correct. [00:27:11] Speaker 05: So the bottom line question I have is, why shouldn't we just send it back to the district court for the quick determination, hopefully quick, of lack of personal jurisdiction? [00:27:21] Speaker 05: Because under the Supreme Court's recent personal jurisdiction cases, which I'm sure you enjoy, it's very difficult to show personal jurisdiction in this case, most likely. [00:27:32] Speaker 02: So, for any number of reasons, Your Honor. [00:27:35] Speaker 02: First of all, as we've indicated, we think this is an Article III issue. [00:27:40] Speaker 02: Secondly, we think that the issue on which this case was decided, Act of War, is an issue of subject matter jurisdiction. [00:27:48] Speaker 02: And as a matter of subject matter jurisdiction, it is not even in the event that personal jurisdiction is required. [00:27:56] Speaker 05: On that point, unlike the Alien Tort Statute, which does speak kind of oddly, as Judge Srinivasan was pointing out, to jurisdiction, this statute does not have that jurisdictional language. [00:28:08] Speaker 05: And it does seem odd to think that [00:28:10] Speaker 05: to me instinctively and looking at the body of case all that active war determination would somehow be jurisdictional. [00:28:18] Speaker 05: So flush that out for me. [00:28:19] Speaker 02: So the reason that we think active war is a matter of subject jurisdiction is because of its placement and function in the statutory scheme itself of the A. T. A. [00:28:27] Speaker 02: It is presented separately with a cross-reference to section 233, the cause of action, which in turn refers to jurisdiction. [00:28:35] Speaker 02: And the text itself directs that this limitation is in substance directed at the power of the court and not as an issue of merits because it governs [00:28:45] Speaker 02: all civil causes of action that arise under Section 233. [00:28:48] Speaker 02: It is akin to the political question doctrine, as noted by Judge Lamberth in his opinion. [00:28:55] Speaker 01: So can I ask you this about this line of argument, which is that 2336 is entitled other limitations. [00:29:00] Speaker 01: Yes, sir. [00:29:01] Speaker 01: So we look at the statute that precedes it, which is the statute that speaks of limitations. [00:29:05] Speaker 01: And this is the appendage to that, which is other limitations. [00:29:08] Speaker 01: If you look at the statute 2335 that's limitations, [00:29:11] Speaker 01: the limitation that's at issue there as a statute of limitations, which everybody agrees is non-jurisdictional. [00:29:16] Speaker 02: I think the answer is it depends upon the context in which the issue is being joined and the function of it. [00:29:22] Speaker 01: So do you think that 2335 is a matter of subject matter of jurisdiction? [00:29:25] Speaker 01: No, I don't, but to analogize... Okay, so let's just, again, let me just finish this question and then please, I don't mean to cut you off. [00:29:32] Speaker 01: So my question is this, if 2335 [00:29:35] Speaker 01: everybody agrees, including you, is non-jurisdictional, and it's a statute of limitations, and it also uses the word maintained. [00:29:43] Speaker 01: It seems to me there's something a little bit odd in saying that the appendage to that provision, which is other limitation, somehow comes back into the ken of jurisdiction in that it also uses the word maintained. [00:29:54] Speaker 02: So and we believe the court is right to focus on that language. [00:29:58] Speaker 02: It depends on the context in which the issue arises. [00:30:01] Speaker 02: And so, for example, if we consider act of war, and in fact, I think your reference to 2335 is in an oblique way kind of helpful to our position on this issue. [00:30:12] Speaker 02: And that is, it would be as if act of war was a statute of limitations with a zero time period. [00:30:19] Speaker 02: And that's part of the reason in which we can observe the operation of 2336, joined as it is with 2337, which is clearly jurisdictional, and also uses the language of maintain. [00:30:31] Speaker 02: So I think it depends upon the context and the structure and the operation of the specific provision in the statutory scheme. [00:30:38] Speaker 02: I don't think the term limitation, as we've seen from the SLUSA case, S-L-U-S-A, that we've referred to, [00:30:48] Speaker 02: in any way undermines it, supports that. [00:30:51] Speaker 01: So I don't think limitation is necessarily dispositive, because I think it could, at least there's good arguments that it could be construed both as jurisdictional and non-jurisdictional, but where you have other limitations following a limitation that is non-jurisdictional, that seems to be a context that would suggest that this one too is non-jurisdictional. [00:31:08] Speaker 02: And I'm not sure whether Your Honor is referring to the other limitations in 2336 or 2335, but in 2336, [00:31:16] Speaker 02: The other limitations were only added after the statute was originally enacted as a standalone provision with no other provisions in 2336 than the provision with respect to active war. [00:31:32] Speaker 05: The upshot of saying it's jurisdictional would be that even if active war was not raised, [00:31:38] Speaker 05: the court would have to consider it. [00:31:40] Speaker 02: Correct. [00:31:41] Speaker 05: That's strange. [00:31:42] Speaker 05: Why would that scheme be set up by Congress? [00:31:48] Speaker 02: So at the end of the day, Your Honor, this is about whether or not these kinds of actions, tort claims arising, for example, from battlefield torts, [00:32:01] Speaker 02: battlefield towards, whether they are going to be heard by the court in the first instance. [00:32:07] Speaker 02: And we think there is wisdom in the provisions with respect to acts of war in Section 2336, separately presented as it is in the statutory scheme, to pre-termit [00:32:21] Speaker 02: the allowance of causes of action to continue on. [00:32:26] Speaker 05: I hear you, but if a party doesn't raise active war, or it affirmatively waives it, by calling it jurisdictional, the court still needs to consider it independently. [00:32:37] Speaker 05: And that, A, seems odd, but I take your point on the broader concept. [00:32:42] Speaker 05: The second point I wanted to raise is the Supreme Court's told us repeatedly over the last [00:32:47] Speaker 05: 10, 15 years that in situations where it's ambiguous, don't call something jurisdictional. [00:32:56] Speaker 05: I'm shorthanding that, but that's the basic message from the Supreme Court. [00:33:01] Speaker 05: And why doesn't this fall within that general principle? [00:33:04] Speaker 02: And there are adequate indications in the statute to rebut exactly that point. [00:33:08] Speaker 02: And these are the issues that we both presented in our briefs and have presented here. [00:33:12] Speaker 02: Section 2337, clearly jurisdictional, and yet it operates in the same way. [00:33:17] Speaker 02: It's functioned within the statute. [00:33:18] Speaker 02: It is not analogous to a statute of limitations. [00:33:21] Speaker 02: And it does bear remarkable resemblance, for example, to the provision in sluice. [00:33:28] Speaker 02: We think the language of to maintain, unless the context otherwise shows, is the language [00:33:35] Speaker 02: of subject matter jurisdiction. [00:33:38] Speaker 03: Can you get the time bonus at some point on the appeal? [00:33:41] Speaker 02: Yes, go to that. [00:33:42] Speaker 02: I'm happy to address that, as Your Honor might imagine, because the reason that there is we're never going to reach these arguments about Article III and IV-ASC or the issues associated with active war, which are quite important in this case, are never reached because the plaintiffs waived their appeal. [00:34:03] Speaker 02: And to the extent this separate order issue is banging around in the 150 days or 180 days from the date Cambridge is clear, that the issue is not whether or not another party is at it during that period of time. [00:34:19] Speaker 02: It is measured from the time at which the order is entered. [00:34:25] Speaker 02: And if it's 30 days, they're out of time. [00:34:28] Speaker 02: If it's 150 days, they're out of time. [00:34:30] Speaker 02: If it's 180 days, they're out of time because they did not file in that period of time. [00:34:36] Speaker 02: So the answer about the separate order question and the applicability of the 180-day or 150-day period is really [00:34:46] Speaker 02: is really not important. [00:34:47] Speaker 05: What about the fact that the district court order arguably anticipated additional proceedings? [00:34:53] Speaker 05: And there is language about that concern in Cambridge. [00:34:57] Speaker 05: How do we deal with that here? [00:34:58] Speaker 05: Because it does seem like the district court, if we took your position, I could see someone thinking this was not fair, given how the district court's order was phrased. [00:35:09] Speaker 02: Well, of course, some of those provisions that are contained in the order, you know, specifically basically notice the plaintiffs that the order is final because there are no other unserved parties. [00:35:19] Speaker 02: So in that respect, the other provisions of the order are not concerning to the extent. [00:35:26] Speaker 02: it constitutes a sort of contingency. [00:35:29] Speaker 02: The Attias case, which was cited as supplemental authority by the plaintiffs, is actually a nice counterpoint for that. [00:35:38] Speaker 02: Attias involved a court order in which there was a finding without prejudice, or I'm sorry, with prejudice. [00:35:44] Speaker 02: But there was also a provision with respect to the potential filing of additional complaints. [00:35:54] Speaker 02: In that case, they are addressing a situation in which there is a party before the court. [00:36:00] Speaker 02: In Cambridge, and for purposes of Rule 54B, there are no parties before the court. [00:36:05] Speaker 01: Is there anything a district court can do in this situation, then, where a party hasn't been properly served to keep the case going? [00:36:10] Speaker 01: Or are you saying that any time the district court enters a judgment as to the parties that have been served, if there's any parties that haven't been served, and everybody assumes that it's just a technicality, it's easy to serve this party, they actually are right there to, it's not a situation where the party's never gonna be served, it's a situation which everybody assumes they're gonna be served, it's just some technicality, that the district court, that it doesn't matter, that the judgment is final, the clock starts ticking right away. [00:36:35] Speaker 02: The judgment is final and the clock starts ticking. [00:36:37] Speaker 01: And that means piecemeal appeals, though. [00:36:39] Speaker 05: Right. [00:36:41] Speaker 02: And of course, that can be managed by the court. [00:36:43] Speaker 02: It can be managed potentially by the district court. [00:36:45] Speaker 02: But that's what that means. [00:36:47] Speaker 05: Wasn't that what the district court here did, try to manage it by that last couple of paragraphs in the opinion to say there are remaining claims, kind of gives the indications that service needs to be had on those remaining defendants, and seems to contemplate [00:37:08] Speaker 05: that that could happen. [00:37:10] Speaker 05: And then it did arguably happen. [00:37:12] Speaker 02: I'm sorry, Your Honor. [00:37:13] Speaker 02: No, because Cambridge indicates that this issue, unlike the issue of contingency arising, for example, in the ATS case, is an issue of jurisdiction. [00:37:21] Speaker 02: So the answer is... Well, suppose Cambridge leaves that open. [00:37:23] Speaker 01: I think the footnote seems to at least leave the possibility open. [00:37:27] Speaker 01: So the question becomes, what's the sense in having a rule in which a district court just can't do anything about it? [00:37:34] Speaker 01: That it just, it's stuck. [00:37:36] Speaker 03: Well, the district court can simply defer issuing a judgment. [00:37:41] Speaker 02: Of course, it can. [00:37:42] Speaker 02: And is that, does that serve a purpose? [00:37:44] Speaker 03: Is that what your answer is? [00:37:45] Speaker 03: I mean, that's the obvious thing the district court can do. [00:37:47] Speaker 03: Look, there are some folks that you're looking for. [00:37:51] Speaker 03: I'll give you X amount of time, and then I'm going to issue. [00:37:57] Speaker 03: And you have Cambridge and the problem. [00:38:00] Speaker 03: and counter for appeal. [00:38:02] Speaker 03: As I understand your argument, that's the control you're saying to either 54B or hold a judgment. [00:38:09] Speaker 02: The court always has the ability to control the entry of the order. [00:38:16] Speaker 02: Yeah. [00:38:17] Speaker 02: So contingency here is different than at TIAS. [00:38:20] Speaker 02: And contingency here is governed by Cambridge and 54B. [00:38:24] Speaker 02: And Your Honor, that's the reason it's not an issue for purposes of this question. [00:38:29] Speaker 02: Also, there are some kind of aggravating facts in a sense here. [00:38:34] Speaker 05: The plaintiffs decided to- So if you'd been plaintiff's counsel and you got this order, you would have said, oh, I've got to appeal right away? [00:38:40] Speaker 02: I got to throw down, even if it's rule 482, I've got to throw down a notice of appeal, because I have nothing to lose. [00:38:49] Speaker 02: The structure of our rules say there is no problem with filing too early on a final order. [00:38:57] Speaker 02: You have, there is a great liberal standard for plaintiffs. [00:39:01] Speaker 02: You only get a problem when you do not file in time because that is jurisdictional. [00:39:07] Speaker 02: And that's what happened here. [00:39:09] Speaker 02: And of course, there was the [00:39:13] Speaker 02: filing, I think, under Rule 54, that ultimately came two years later in which, and it's on the docket, that indicating that the plaintiffs were seeking a final order from Judge Lindbergh, but they then withdrew it. [00:39:28] Speaker 02: And we think that is further indication that there was tactical decisions that were going on and that were being considered with respect to the filing of notice of appeal. [00:39:39] Speaker 02: So for all those reasons, we think Judge Lambert's order was the final one. [00:39:46] Speaker 02: And it was final whether it's, as I said, 180 days or 30 days. [00:39:51] Speaker 02: I don't think that issue ultimately governs the result because the appeal is ultimately not noticed until I think 2016. [00:40:00] Speaker 02: Act of war, does the court want to hear about act of war? [00:40:05] Speaker 02: Sure. [00:40:05] Speaker 02: I mean, just briefly, act of war is a very important matter, and it is not, as the plaintiffs say, the obverse of an act of terrorism. [00:40:13] Speaker 02: These two issues are completely separate. [00:40:17] Speaker 02: And that's indicated by the text with the separate presentation of act of war and what we say is a jurisdictional provision. [00:40:23] Speaker 02: And any other approach renders act of war sort of a form of surplusage. [00:40:30] Speaker 02: And Judge Lambert did not make the mistake that you've seen sometimes some of the fractured jurisprudence that surrounds act of war. [00:40:38] Speaker 02: So act of war in this case requires an armed conflict and that the conduct be in the course of that conflict by military forces of any origin. [00:40:48] Speaker 05: There are also, as we've had... How do you tell a military force from a terrorist group? [00:40:53] Speaker 02: So it is a function of the context in which the hostilities are engaged context. [00:41:01] Speaker 02: And it is a function, as George Lambert found, of capacity. [00:41:04] Speaker 01: Well, first of all, do you agree with the premise of the question, which is that they're mutually exclusive? [00:41:07] Speaker 03: Yeah, that's what I was going to ask you. [00:41:09] Speaker 03: Are they mutually exclusive? [00:41:10] Speaker 01: Terrorists, groups, and military forces, are they? [00:41:12] Speaker 01: Definitely not. [00:41:14] Speaker 01: You think that there is overlap? [00:41:16] Speaker 02: Definitely. [00:41:17] Speaker 02: No question. [00:41:18] Speaker 03: In other words, the terrorists can have a military force. [00:41:21] Speaker 05: How do you tell an unaffiliated terrorist group from a loosely constituted terrorist group from a terrorist group that qualifies as a military force? [00:41:32] Speaker 02: It is their capacity at the time in question in this case. [00:41:35] Speaker 02: It was easy to observe because they were engaged in battle, in essence. [00:41:39] Speaker 02: with an invading national military. [00:41:41] Speaker 02: So it isn't a situation which we keep saying, this is nowhere near a suicide bomber organized by a terrorist group that's sent into a civilian area. [00:41:54] Speaker 02: That's not what we're talking about. [00:41:55] Speaker 02: We're also not talking about, for example, the situation in Byton, which has some, I think, very useful illumination with respect to the operation of the act of war. [00:42:05] Speaker 01: But you are talking about a designated foreign terrorist organization. [00:42:08] Speaker 02: Yes, but that is not disqualifying as Judge Limer found because the question is not a status, it is a question of [00:42:18] Speaker 02: What are they doing at the time of the tort in question? [00:42:23] Speaker 02: If they're wearing a military uniform on behalf of a foreign nation, it doesn't disqualify that particular combatant, for example, that he may otherwise have a US designation. [00:42:36] Speaker 02: The question is his capacity in the context of the conflict. [00:42:41] Speaker 02: And there is no question that there was an armed conflict here. [00:42:46] Speaker 02: It was unlike most of the other cases that have come down. [00:42:49] Speaker 02: This was a situation in which there was a land invasion and mutual bombardment of each other's territory, a UN ceasefire that was ultimately generated that stopped the hostilities and that ended these exchanges of ordnance that you saw in this case. [00:43:05] Speaker 02: And with respect to the during the course of requirement, [00:43:09] Speaker 05: That, as we've indicated, we think is just a nexus requirement, whether, you know, for... What makes someone a military force, or what makes a group, a terrorist group, a military force? [00:43:22] Speaker 05: You said capacity. [00:43:24] Speaker 05: That would seem to mean that they're all military forces. [00:43:28] Speaker 05: Presumably, there's some group of isolated terrorists floating around who are not a military force, but maybe that's wrong. [00:43:36] Speaker 05: Maybe you think they're all military forces. [00:43:38] Speaker 02: Well, we think and foresee a military force of any origin incorporating this idea, and I think the case law supports it. [00:43:46] Speaker 02: that you can have things like paramilitary and militia, and you can even have armed citizenry, in fact. [00:43:53] Speaker 02: It depends, once again, are they rising, for example, to meet an invasion by a national force. [00:43:59] Speaker 02: If so, they are within the notion of a military force of any origin, at least for some period of time, regardless. [00:44:10] Speaker 05: Reading it that broadly seems to take the teeth out of the statute. [00:44:15] Speaker 02: I disagree. [00:44:16] Speaker 02: And the reason is that the act of war is intended to avoid these kinds of tort actions that arise out of foreign armed conflicts. [00:44:28] Speaker 02: And that's the reason it's so broad. [00:44:29] Speaker 02: If you compare, for example, other provisions that have kind of similar act of war kinds of provisions, they can be limited and have been limited to sometimes state [00:44:41] Speaker 02: Militaries, but that's not true in our case. [00:44:46] Speaker 02: They've said we are not going to be litigating civil wars. [00:44:52] Speaker 02: We are not going to be litigating the question, for example, that the court raises as to whether or not there was sufficient organization. [00:44:59] Speaker 01: Does Al-Qaeda count as a military force? [00:45:03] Speaker 02: It depends on their capacity at the time. [00:45:04] Speaker 01: So they could. [00:45:05] Speaker 01: That's a yes. [00:45:06] Speaker 01: I mean, yeah. [00:45:07] Speaker 05: Of course they do, under what you said. [00:45:10] Speaker 02: Yeah. [00:45:10] Speaker 05: 100% under what you're under your test, to judge turn a glass into glass. [00:45:16] Speaker 02: So imagine an invasion. [00:45:18] Speaker 02: Let's say al-Qaeda is from Saudi Arabia. [00:45:20] Speaker 02: And there's an invasion by another country of Saudi Arabia. [00:45:25] Speaker 02: And those fighters are out defending Saudi Arabia and attacking the invasion. [00:45:32] Speaker 02: The answer is that that looks like active war. [00:45:39] Speaker 02: So for all these reasons, the district court should be firm. [00:45:43] Speaker 02: Thank you, your honor. [00:45:44] Speaker 05: Thank you. [00:45:46] Speaker 05: I will give you some time on rebuttal to you got a lot of different issues circling here. [00:45:53] Speaker 04: I want to return very briefly to the Cambridge issue. [00:45:55] Speaker 04: I'd like to move on, because there are a lot of things we get to. [00:45:58] Speaker 04: We raised an alternative argument in a reply brief, the Unique Circumstances Doctrine, which I think would be an alternative way to define this appeal timely. [00:46:04] Speaker 04: Namely, the appeal itself was timely. [00:46:08] Speaker 04: The 59E motion was untimely. [00:46:10] Speaker 04: And the 59E motion to alter and amend the judgment that was filed before the notice of appeal, that was untimely, in theory, if we kept that theory. [00:46:17] Speaker 04: And this court has held that under unique circumstances, such as here, where we thought that we couldn't appeal reasonably so. [00:46:24] Speaker 05: Anything else on the timeliness point you want to make? [00:46:26] Speaker 04: Let's move on. [00:46:28] Speaker 04: OK. [00:46:28] Speaker 04: Oh, yes. [00:46:29] Speaker 04: In the conversation with Judge Edwards, they were talking about the schedule, the order of events. [00:46:34] Speaker 04: I refer the court to pages 35 to 37 of our blue brief, and also to pages 40 and 41, where we speak out exactly what happened and how things worked out vis-a-vis the timeline. [00:46:47] Speaker 04: Holding here a copy of the district court's order. [00:46:50] Speaker 04: The area in brackets, this is 94, 95 of the record. [00:46:54] Speaker 04: Area in brackets is the part of the order that resolved the case against the appellees. [00:47:00] Speaker 04: The rest of it involves subsequent proceedings. [00:47:04] Speaker 04: We're not talking about a line or two. [00:47:06] Speaker 04: The order was dominated by discussion of subsequent proceedings. [00:47:10] Speaker 04: The rule that the Italians are advocating would be extraordinarily unfair to people in my position. [00:47:16] Speaker 04: I know Judge Edwards thinks that the case law is clear, but respectfully, to me, it's not clear. [00:47:24] Speaker 04: And whether I might or not, the fact is, as a litigant in this position, [00:47:29] Speaker 04: How am I supposed to know whether or not I have to appeal? [00:47:32] Speaker 03: Well, I mean, really, the simple answer to that is, which you would know, a protective appeal is very simple. [00:47:40] Speaker 03: And if you read Cambridge, it seems to me, if I'm in your position, I'm not taking any chances. [00:47:45] Speaker 03: I'm filing a protective appeal. [00:47:47] Speaker 03: End of discussion. [00:47:48] Speaker 03: So I mean, you shouldn't ask that question. [00:47:50] Speaker 03: Because if you need a good answer to that, you lose easily. [00:47:54] Speaker 03: This is a very simple way to do it, and parties do it. [00:47:57] Speaker 03: Parties do do it. [00:47:58] Speaker 03: It wastes the court's time. [00:47:59] Speaker 03: And not if Cambridge says there's a possibility you're out of court, it seems to me you file the paper. [00:48:08] Speaker 05: OK. [00:48:09] Speaker 05: But your broader point is Cambridge has some wiggle room. [00:48:14] Speaker 05: And that's dangerous in this context, you would say. [00:48:20] Speaker 04: You want to have clarity. [00:48:21] Speaker 05: Because you want to have clarity, so litigants know what the heck to do. [00:48:24] Speaker 04: Yes. [00:48:25] Speaker 04: Yes. [00:48:28] Speaker 04: Fine. [00:48:29] Speaker 04: Very briefly, on Adidas or Atayas, however you pronounce it, the 20 and 28J case, the decision's very clear, that the intention of the district court, at least where the district court is saying, this case is continuing, [00:48:42] Speaker 04: it's just. [00:48:43] Speaker 04: And there might be a hypothetical case in an extreme situation where the district court was just off the thronger but that those aren't our facts. [00:48:49] Speaker 04: The district court clearly intended the case to continue. [00:48:51] Speaker 04: There was clearly plenty to litigate. [00:48:53] Speaker 04: We were doing it for the last four years. [00:48:55] Speaker 04: And under Attias, that's dispositive. [00:49:01] Speaker 04: Fine. [00:49:02] Speaker 04: Owens. [00:49:03] Speaker 04: Owens, a recent decision of this court that I did not put a 28J in, and am happy to, in raising it. [00:49:07] Speaker 04: I didn't expect it to bring it up. [00:49:09] Speaker 04: Owens held very clearly with regard to the FSIA, the Foreign Sovereign Immunities Act. [00:49:13] Speaker 04: that provisions in the same section, but different subsections, are analyzed separately for the purposes of determining the clear statement rule vis-a-vis jurisdiction. [00:49:23] Speaker 04: So Owens held that one subsection of the statute clearly talks about jurisdiction. [00:49:28] Speaker 04: Another subsection of the statute is unclear. [00:49:31] Speaker 04: That's that other subsection is the one the court was dealing with. [00:49:35] Speaker 04: Because they were in two different subsections, said this court, that's enough to make another clear statement. [00:49:40] Speaker 04: So my opponents are talking about, and I'm happy to file a 28J, so my opponent's going to respond. [00:49:44] Speaker 04: I apologize in doing it in this format. [00:49:46] Speaker 04: My opponents are talking about other statutory sections entirely. [00:49:51] Speaker 04: A subsequent section, which is not jurisdictional, but they say it is, indicates that this section also is jurisdictional. [00:49:57] Speaker 04: That's not true, A. And B, it's contrary to Owens. [00:50:00] Speaker 04: Because again, Owens says, you even look at subsections of a statute distinctly. [00:50:06] Speaker 04: Um, military force versus terrorist group. [00:50:08] Speaker 04: I see that in a matter of time. [00:50:09] Speaker 04: I'll just be very, very brief. [00:50:10] Speaker 04: You can go for another minute or two. [00:50:12] Speaker 04: Thank you very much, Your Honor. [00:50:14] Speaker 04: There was, by hypothesis, I'm not conceding anything here, but let's just say by hypothesis, there was an armed conflict going on in Israel, or not in Israel, in Lebanon, excuse me, between the Israeli military force and the Lebanese and in Hezbollah. [00:50:27] Speaker 04: These Hezbollah fighters were separately launching rockets from presumably a different location. [00:50:31] Speaker 04: They weren't on the front lines doing this. [00:50:32] Speaker 04: They were doing it from some secure location, presumably on the front lines. [00:50:36] Speaker 04: So fighters who were not on the front lines, who were not actively engaged in the Israeli military, launching rockets at civilians, [00:50:44] Speaker 04: with no military objective at all. [00:50:47] Speaker 04: This is something that Hezbollah was doing before this conflict, something that they would have done after this conflict and will probably, unfortunately, do again. [00:50:54] Speaker 04: This is their policy. [00:50:56] Speaker 04: They were doing it to kill civilians. [00:50:58] Speaker 04: That is not an act of war. [00:51:00] Speaker 04: That is an act of terrorism, quite clearly. [00:51:01] Speaker 04: And that is what Congress wanted to do, wanted to resolve, in enacting the Anti-Terrorism Act. [00:51:07] Speaker 05: Thank you. [00:51:07] Speaker 05: Thank you. [00:51:07] Speaker 05: Since we're, you'll be back. [00:51:11] Speaker 05: Thank you. [00:51:11] Speaker 05: The case is submitted.