[00:00:01] Speaker 00: A 16-7122 Cheyenne Kaplan at all. [00:00:06] Speaker 00: Appellants versus Hezbollah, also known as Hezbollah. [00:00:11] Speaker 00: Also known as Hezbollah. [00:00:13] Speaker 00: Also known as Hezbollah. [00:00:15] Speaker 00: Also known as Hezbollah at all. [00:00:17] Speaker 00: Mr. Katz for the appellants. [00:00:19] Speaker 00: Mr. Shelley, court appointed. [00:00:22] Speaker 00: Mika is correct. [00:00:32] Speaker 05: The risk of – I don't want to repeat. [00:00:39] Speaker 06: Can I assume that everything we've done – Yes, everything you've said in the prior case carries over, and just tell us what additional argument you need to make here, if any. [00:00:50] Speaker ?: Sure. [00:00:51] Speaker 05: I guess I want to elaborate a little bit more on the last point I was just making regarding active war. [00:00:57] Speaker 05: Imagine one of these Hezbollah fighters goes on his break, eating lunch, whatever it is, and goes to a civilian prison not far from his camp in Hezbollah territory in southern Lebanon, and kidnaps a civilian prisoner that he has access to for whatever reason. [00:01:11] Speaker 05: Not in Israeli, nothing to do with the Israeli conflict. [00:01:13] Speaker 05: He's in there for larceny, let's say, and tortures him for fun. [00:01:18] Speaker 05: Tortures him for fun. [00:01:20] Speaker 05: On his break, as soon as he's done, that's how he gets his kicks, that's how he gets his energy to go back and fight some more in the front lines. [00:01:26] Speaker 05: And after he's done, he's gonna go back and he's gonna go back to the war. [00:01:29] Speaker 05: Was that in the course of armed combat? [00:01:32] Speaker 05: Is that possible, that that would be considered in the course of armed combat? [00:01:36] Speaker 05: I can't imagine how that could possibly be in the course of it. [00:01:39] Speaker 05: He's doing something that clearly has nothing to do with the war. [00:01:43] Speaker 05: If we accept by hypothesis that nexus is the relevant standard, I think it begs the question, what kind of nexus? [00:01:51] Speaker 05: I mean, yes, it was in the same time, sort of. [00:01:54] Speaker 05: It was on break. [00:01:55] Speaker 05: same general location, but that's not an adequate nexus to be considered in the course of armed conflict. [00:02:02] Speaker 05: Obviously Congress, in writing the words in the course of armed conflict, was trying to express that it has to be this act, this terrorist act, or not, but it has to be actually, it has to be international terrorism to be relevant here. [00:02:15] Speaker 05: It has to be relevant to, in some substantive way, the armed conflict that we're talking about. [00:02:23] Speaker 02: But that seems like that would be the question in your hypothetical, is whether it counts as international terrorism to begin with. [00:02:31] Speaker 05: Oh, OK. [00:02:33] Speaker 05: You're right. [00:02:34] Speaker 05: Maybe it's not a perfect hypothetical, because it would have to be to coerce the civilian population. [00:02:37] Speaker 05: That's true. [00:02:38] Speaker 05: It would have to modify the hypothetical. [00:02:40] Speaker 05: But I'm sure we can imagine something where you would get that and raise this other question. [00:02:54] Speaker 05: Going back to hypothetical jurisdiction briefly, we did not talk about threshold issue in the prior appeal. [00:02:59] Speaker 05: I just wanted to address that briefly. [00:03:01] Speaker 05: Threshold issues are common law rules of dismissal that courts, I felt, can be addressed before jurisdiction. [00:03:07] Speaker 05: Common law rules of dismissal such as foreign unconvenience, public policy issues such as the political question doctrine, [00:03:14] Speaker 05: This is a statutory exception. [00:03:16] Speaker 05: This is your bread and butter merits exception. [00:03:20] Speaker 05: It has nothing to do with the threshold issue exception to the general rule. [00:03:26] Speaker 05: First of all, I'm not aware of an example where an issue was found to be threshold that was a statutory enactment specific to a particular cause of action. [00:03:35] Speaker 05: I don't think it exists. [00:03:36] Speaker 05: And it shouldn't. [00:03:37] Speaker 05: These are common law rules of dismissal akin to jurisdiction. [00:03:40] Speaker 05: That's what they do. [00:03:41] Speaker 05: They throw the case out. [00:03:43] Speaker 05: One more point here. [00:03:45] Speaker 05: If the act of war exception is jurisdictional, Judge Kavanaugh raised in the last appeal that the court has to raise it to respond to. [00:03:55] Speaker 05: I think there's a finer point that has to be made. [00:03:57] Speaker 05: It has to be raised first. [00:03:59] Speaker 05: You, the district judge, cannot address international terrorism until you've addressed the act of war. [00:04:05] Speaker 05: which is exactly backwards. [00:04:06] Speaker 05: It's certainly backwards from what Congress intended. [00:04:08] Speaker 05: I mean, you can't even consider whether or not there's a cause of action here for international terrorism until even just subject matter jurisdiction, act of war being subject matter jurisdiction by hypothesis. [00:04:22] Speaker 05: You have to do that first. [00:04:23] Speaker 05: To my knowledge, no case has done it that way. [00:04:25] Speaker 05: And it would upend all of these cases in the way that I think everyone thinks about this cause of action. [00:04:34] Speaker 05: Regarding an issue raised by the amicus in a footnote on this court's Pellet jurisdiction, very briefly again, I think that the case law is quite clear, that a court can rule implicitly, which the district court clearly did here. [00:04:50] Speaker 05: The district court entered a final judgment on its own terms, evoking rule four, frat four, clearly intended the decision to be final. [00:04:59] Speaker 05: And if there were any outstanding claims, implicitly they were dismissed. [00:05:03] Speaker 05: On top of that, it's certainly arguable that there were no outstanding claims. [00:05:07] Speaker 05: Probably the district court certainly, I should say, assumed that there were no outstanding claims. [00:05:11] Speaker 05: He wrote that. [00:05:12] Speaker 05: The only claim remaining, I think, was the district court's language, is this FSIA claim, the Foreign Sovereign Immunities Act claim. [00:05:18] Speaker 05: There is nothing else. [00:05:19] Speaker 05: Clearly, he thought that there was nothing else. [00:05:21] Speaker 05: And even if there would be something to some other claim, there were no other damages that we could have gotten. [00:05:26] Speaker 05: Plaintiff can only win once, as the Seventh Circuit wrote. [00:05:29] Speaker 05: And we won. [00:05:30] Speaker 05: We won as much as we could have won against Iran and against North Korea. [00:05:35] Speaker 05: And there was nothing else that any claim could have done. [00:05:38] Speaker 05: So they were redundant, or at least as far as damages were concerned, certainly they were redundant. [00:05:44] Speaker 05: And there was nothing more for the court to decide. [00:05:48] Speaker 02: So, can I just ask you one question? [00:05:49] Speaker 02: On the claims, when you win a default judgment, could you take an appeal if the default judgment is entered without an assessment of personal jurisdiction? [00:05:58] Speaker 02: Because under your theory, there's still something missing in the judgment because you won't be able to enforce it if the judge didn't cross dot i's and cross t's on personal jurisdiction, so you could probably take an appeal. [00:06:09] Speaker 05: I think so. [00:06:10] Speaker 05: We very explicitly did not appeal as to the judgments against North Korea. [00:06:15] Speaker 05: We were very clear about that. [00:06:16] Speaker 05: We were only appealing vis-a-vis Hezbollah against whom we lost. [00:06:20] Speaker 05: But had we won against Hezbollah and nevertheless wanted to appeal on this jurisdictional issue, I think we could. [00:06:26] Speaker 02: Even though you wanted to follow judgment, you could still appeal. [00:06:29] Speaker 05: Because our interests are impacted. [00:06:32] Speaker 05: By hypothesis, we don't have an enforceable judgment. [00:06:35] Speaker 03: It's an advisory opinion. [00:06:36] Speaker 03: I mean, it's so inconsistent. [00:06:39] Speaker 03: It is so inconsistent in the way we do business. [00:06:46] Speaker 03: It is speculating about what might happen in later proceedings and your argument seems to be we'll be advantaged if we get another [00:07:00] Speaker 05: The underlying litigation, the purpose of the underlying litigation against the defendant is to get an enforceable judgment. [00:07:09] Speaker 05: That is the objective. [00:07:10] Speaker 05: By hypothesis, and these are not our facts, I want to be clear, but by hypothesis, we did not. [00:07:16] Speaker 05: That which we were after, we did not receive. [00:07:20] Speaker 05: I think that's appealable. [00:07:21] Speaker 05: But to answer your question specifically, I don't have a case for that. [00:07:24] Speaker 05: But to me, it makes a great deal of sense. [00:07:26] Speaker 03: I did not receive an enforceable judgment. [00:07:27] Speaker 03: If you write on the Steele Code issue, how could a judgment be issued? [00:07:31] Speaker 03: If I'm understanding my colleague's question, how could an appealable judgment have been issued if the district court hadn't determined personal jurisdiction in the first place? [00:07:42] Speaker 05: The case is final and the court has entered final judgment. [00:07:45] Speaker 05: So if I understand your question, your question is that nothing happened because the court didn't address jurisdiction by hypothesis. [00:07:52] Speaker 03: Well, on the theory that you've been arguing all morning. [00:07:54] Speaker 05: Yes. [00:07:54] Speaker 05: But we can't do anything in the district court because the case is closed. [00:07:58] Speaker 05: If you come back to the district judge and say, I'm sorry you didn't do everything you were supposed to do, the district judge would most likely say, yes, I did. [00:08:05] Speaker 05: And what do we do at that point? [00:08:06] Speaker 05: We have 30 days. [00:08:08] Speaker 05: You know, the clock is ticking. [00:08:10] Speaker 05: As you understand a minute ago, I need to file. [00:08:12] Speaker 03: You don't even have an obligation to raise with the district court. [00:08:18] Speaker 03: It makes no sense to me. [00:08:21] Speaker 03: The party that has the right can waive it. [00:08:24] Speaker 03: If they fail to raise it, it's lost. [00:08:27] Speaker 03: Let me just play it out for you. [00:08:29] Speaker 03: You're the party that does not have the right. [00:08:32] Speaker 03: with respect to personal jurisdiction. [00:08:34] Speaker 03: And as I hear your argument, you're saying, I don't even have to raise that with the district court. [00:08:39] Speaker 03: I can take the judgment as given, with no disposition on personal jurisdiction, and then appeal and say the district court should be reversed in case sent back because personal jurisdiction was not resolved as synchronic, you know, the cases that you're relying on as required. [00:08:56] Speaker 03: That doesn't make any sense to me. [00:08:58] Speaker 03: This whole jurisdiction is waivable. [00:09:00] Speaker 03: Whether or not it's within the steel cold compass, I understand that argument. [00:09:07] Speaker 03: It doesn't bother me one way or another, but it does make no sense to me that the party that has the right to assert it can waive it. [00:09:14] Speaker 03: And you're saying you can't. [00:09:15] Speaker 05: Personal jurisdiction with respect to honor, I don't believe is waived in default actions, particularly in the FSIA cases, which is what I think we're talking about. [00:09:22] Speaker 05: I'm not sure if we're talking about Hezbollah or North Korea anymore. [00:09:24] Speaker 05: These aren't our facts anyway. [00:09:25] Speaker 05: But if it would be an FSIA case, for sure, against North Korea. [00:09:29] Speaker 06: It's otherwise waivable, as Judge Edwards point, by the defendant. [00:09:33] Speaker 06: Yes, but the defendant. [00:09:36] Speaker 06: makes it odd to my mind that it comes within Steel Co., but nonetheless it may come within Steel Co., but your [00:09:44] Speaker 06: broader point, just so I'm clear, seems to be that even if no one here had mentioned personal jurisdiction, if one of us thought about it, which hopefully we would, we would have an obligation on our own to say, wait a second, we have a flaw here that district court never addressed personal jurisdiction first. [00:10:04] Speaker 03: I don't know you didn't raise it below. [00:10:06] Speaker 03: You're claiming you would have a right to raise the question, and you didn't bring it to the attention of the Supreme Court. [00:10:11] Speaker 03: No, no, no. [00:10:11] Speaker 03: We're just talking about your larger theory. [00:10:13] Speaker 05: I just want to make it very clear. [00:10:14] Speaker 05: In this case, we did raise it below. [00:10:16] Speaker 05: I don't want to be confused on that point. [00:10:18] Speaker 05: I'm just trying to understand the larger thesis. [00:10:19] Speaker 05: Yes. [00:10:20] Speaker 05: I think that's what the Supreme Court helped. [00:10:23] Speaker 02: I think your principle, as I understand it, is limited to default judgments. [00:10:28] Speaker 02: Because your point is that under our court's cases, [00:10:31] Speaker 02: personal jurisdiction is something that the district court has to do before entering a default judgment. [00:10:35] Speaker 05: If you have a defendant and the defendant waived personal jurisdiction, absolutely. [00:10:39] Speaker 05: I'm getting confused because the facts keep changing. [00:10:42] Speaker 05: If you have a defendant and the defendant waives it, it's over. [00:10:45] Speaker 02: Right, and waiver for personal jurisdiction purposes is not your typical waiver because waiver is a failure to raise. [00:10:51] Speaker 02: For personal jurisdiction, I think you have to affirmatively raise it in order to preserve it. [00:10:55] Speaker 02: And if you don't affirmatively raise it, it's gone. [00:10:57] Speaker 05: I believe that's correct. [00:10:57] Speaker 02: But in a default judgment case, the whole problem is that there's no defendant to assert personal jurisdiction, and so our cases require a district court to assure itself of personal jurisdiction before entering a default judgment. [00:11:08] Speaker 02: Absent that, I think I'm not saying you necessarily win on this argument, but absent that, you'd have an even more difficult argument because [00:11:16] Speaker 02: The reason that you have the ability to say on appeal that personal jurisdiction had to have been found below is because this is a default judgment case, I think, no? [00:11:27] Speaker 04: Yes, in this appeal, yes. [00:11:29] Speaker 06: Yeah. [00:11:30] Speaker 06: In this appeal, yeah. [00:11:33] Speaker 06: Okay, anything else? [00:11:34] Speaker 06: We can, we'll give you time in rebuttal. [00:11:37] Speaker 05: No, thank you very much. [00:11:49] Speaker 06: Good morning. [00:11:50] Speaker 01: Good morning, and may it please the court. [00:11:51] Speaker 01: I'm Anthony Shelley, the amicus appointed to defend the parts of the district court's judgments that are up here on appeal. [00:11:58] Speaker 01: In my brief, I tried to defend the district court's decision on the act of war exception and also indicated why the district judge was not an error in bypassing personal jurisdiction. [00:12:11] Speaker 01: But I also raised an issue of appellate jurisdiction that I'd like to just go into for a moment. [00:12:18] Speaker 01: The issue arises because of potentially unresolved claims under the applicable law theory against North Korea. [00:12:27] Speaker 01: I think that the plaintiff's counsel has made a very strong case that the district judge intended his decision to be final. [00:12:35] Speaker 01: I think there's also a very good argument that for most of the plaintiffs, the finding on the FSIA did end the case. [00:12:44] Speaker 01: But there are two plaintiffs in this case [00:12:47] Speaker 01: Their names are Michael Fuchs and Daniel Souter, who don't have FSIA claims. [00:12:52] Speaker 01: They instead had only claims under applicable law. [00:12:55] Speaker 01: And that's because they aren't U.S. [00:12:57] Speaker 01: citizens. [00:12:58] Speaker 01: That comes out in the document that appears in the record as the conclusions of law, the proposed findings and conclusions of law. [00:13:06] Speaker 01: there are two people present here whose claims were not decided. [00:13:09] Speaker 01: And in fact, the district court held that Mr. Fuchs didn't have standing to raise an FSAI claim and gave him zero as a result. [00:13:16] Speaker 01: So there is relief that he could get under a theory of applicable law. [00:13:22] Speaker 01: The judge never said he was [00:13:25] Speaker 01: declining supplemental jurisdiction over these people. [00:13:28] Speaker 01: So the reality is what we have is a situation where a judge thought he was entering a final order, but in reality there are some claims that weren't resolved. [00:13:39] Speaker 01: And I don't think your case is yet resolved whether that means you have appellate jurisdiction or not, in the sense of a final order that was intended to be final, but really isn't. [00:13:51] Speaker 01: Because the Muir case comes close. [00:13:52] Speaker 01: It's an unpublished decision where a judge thought he was this [00:13:56] Speaker 01: The judge thought he was issuing a final order, called a final judgment, but the court dismissed the case for lack of appellate jurisdiction because there was some cleanup work that hadn't been done. [00:14:05] Speaker 01: There were some claims that the judge inadvertently didn't realize still existed, and the court dismissed it and sent it back to have that cleaned up. [00:14:11] Speaker 01: So I would argue, or I would flag for the court, this issue of appellate jurisdiction. [00:14:16] Speaker 02: So can I take you to the other issue that you raised, which is whether it's proper for this party to bring the issue of personal jurisdiction to this court since it's an issue on which it would win, since it would result in a proceeding that may not accomplish a whole lot. [00:14:28] Speaker 02: So my question to you is this. [00:14:29] Speaker 02: Their argument is that there's something at stake for them. [00:14:33] Speaker 02: because the sanctity of the judgment depends on whether the district judge made a finding of personal jurisdiction. [00:14:38] Speaker 02: And that's sort of a race judicata argument. [00:14:41] Speaker 02: As I understand the law, if a plaintiff gets a dismissal without prejudice, [00:14:47] Speaker 02: They have a stake in getting that dismissal converted into one with prejudice. [00:14:51] Speaker 02: Why? [00:14:51] Speaker 02: Because of the ratio to the consequences. [00:14:53] Speaker 02: So I assume that if a plaintiff gets a dismissal without prejudice, they can appeal on the ground that that dismissal should have been entered with prejudice. [00:15:00] Speaker 02: Why isn't the analogy here that what the plaintiffs would say is, yeah, [00:15:06] Speaker 02: You know, there's a resolution here, but we want a different kind of resolution because we want one that carries race-judicata consequences and that we don't have to revisit later on. [00:15:16] Speaker 02: That's what we have at stake. [00:15:18] Speaker 02: So it's like kind of converting a without prejudice into a with prejudice. [00:15:22] Speaker 01: I think if it had been raised in front of the district judge, it could have been resolved. [00:15:25] Speaker 01: It was never raised in front of the district judge, and it only comes up here. [00:15:28] Speaker 01: So that's one angle. [00:15:30] Speaker 01: But I don't have an issue with that, in fact, being necessary. [00:15:35] Speaker 01: But I think it then does bring you back to the issue of is the personal jurisdiction question a jurisdiction, excuse me, is the act of war exception jurisdictional or a threshold issue, which would, I think, still allow the district judge to just go right to the end in that case. [00:15:52] Speaker 01: Now, it could be that after the district judge, I think what happened here, if the district judge went right to the end of the case and said, look, on merits or on a separate jurisdictional issue, I can't approve of the default because there's no cause of action in the first place, let's say. [00:16:05] Speaker 01: Then, if that was the case and the plaintiff wanted to appeal that issue, I think it would have been incumbent on the plaintiff to go back to the district judge and say, I think I'm going to get that reversed and because then I want to [00:16:15] Speaker 01: I want to have a full judgment. [00:16:18] Speaker 01: You need to deal with personal jurisdiction. [00:16:20] Speaker 01: But the reality is, if they win a reversal on the act of war, it goes back to the district judge and they can get everything corrected. [00:16:27] Speaker 01: The posture of this case is odd, that they lost and they sort of want to go back to win personal jurisdiction, only to lose again on the act of war exception. [00:16:41] Speaker 01: That's, I don't, that's a, there's nothing, I think they do not want personal jurisdiction in that case because they're not going to- Why do their motives matter, really, in the end? [00:16:52] Speaker 06: If personal jurisdiction has to be considered at the outset, and that if, then that wasn't done. [00:17:03] Speaker 01: It wasn't. [00:17:04] Speaker 01: It wasn't done here. [00:17:05] Speaker 01: And I think in the context of a default, a judge doesn't have to assure himself of personal jurisdiction necessarily because I think the case law doesn't indicate he can rule in favor of the same party who he might have ruled in favor of on personal jurisdiction by finding that there was no claim in the first place. [00:17:24] Speaker 01: But otherwise, I agree that the Forrest case, for instance, suggests the personal jurisdiction may be something that has to be considered first, but only if the thing the judge did consider was not also jurisdictional or not a threshold. [00:17:37] Speaker 06: Right. [00:17:37] Speaker 06: If act of war is not jurisdictional and if personal jurisdiction has to be considered first. [00:17:44] Speaker 01: Or if act of war is not threshold. [00:17:47] Speaker 06: Not threshold, correct. [00:17:49] Speaker 06: It's neither threshold nor jurisdictional. [00:17:52] Speaker 01: Then if Forrest is the law, then the district judge would have had to have considered personal jurisdiction. [00:17:56] Speaker 02: Wait, wait, wait. [00:17:57] Speaker 02: Why? [00:17:57] Speaker 02: Do you read Forrest to say that personal jurisdiction is jurisdictional in the steel company sense? [00:18:03] Speaker 02: Or does it say it's threshold? [00:18:05] Speaker 01: Well, I read Rurgas as suggesting there is a similarity between personal jurisdiction and subject matter jurisdiction as being the kinds of things a judge should consider first in a case. [00:18:22] Speaker 02: Can consider first. [00:18:24] Speaker 01: Well, subject matter must, personal can. [00:18:27] Speaker 01: And in fact, in Rurgas, what happened was the court considered personal jurisdiction instead of subject matter jurisdiction. [00:18:32] Speaker 01: The court said that was fine. [00:18:33] Speaker 01: You can order them that way. [00:18:35] Speaker 01: So I think that's what Rurgas says. [00:18:38] Speaker 01: And I think for us then, [00:18:40] Speaker 01: very sternly came down on the district judge for not considering personal jurisdiction. [00:18:45] Speaker 01: But it didn't say must. [00:18:47] Speaker 02: It didn't say must and it also predicated on uncertainty as a subject matter of jurisdiction. [00:18:51] Speaker 06: It did say must. [00:18:53] Speaker 06: It effectively said must because it blasted the district judge for not doing it and now it has to be a must. [00:19:00] Speaker 02: I'm not sure I follow that, just if I can get your reaction to it, because that would be true of foreign non-convenience too. [00:19:05] Speaker 02: So foreign non-convenience is a threshold that can be considered first. [00:19:09] Speaker 02: I don't think anybody thinks that because foreign non-convenience can be considered first, it has to be, right? [00:19:16] Speaker 02: Correct. [00:19:17] Speaker 02: The reason, arguably, the reason that personal jurisdiction becomes a threshold thing that could be considered first is because there was a debate about subject matter jurisdiction. [00:19:26] Speaker 02: And then once you open the floodgates with the debate about subject matter jurisdiction, any threshold can be the threshold ground you consider, including form of inconvenience or personal jurisdiction. [00:19:36] Speaker 01: Well, I don't want to disagree, because I think that then leads to the conclusion that the district judge was fine in bypassing personal jurisdiction. [00:19:43] Speaker 03: Yeah, I mean, you're saying, of course, if you had only personal jurisdiction in the forest, [00:19:48] Speaker 03: Correct. [00:19:49] Speaker 03: The result, what we had to say about it would have been different. [00:19:53] Speaker 03: There would not have been a requirement. [00:19:55] Speaker 03: It could have been decided first, but this court would not have been required to consider first. [00:20:00] Speaker 03: That's your argument. [00:20:01] Speaker 01: Yes, since it was the only issue. [00:20:03] Speaker 01: The only one. [00:20:04] Speaker 02: Now, Judge Kavanaugh points out, obviously, the opinion went to great lengths to say that personal jurisdiction was an easy issue that should have been resolved first. [00:20:11] Speaker 01: Exactly. [00:20:11] Speaker 06: And I think moving to that somewhat, I want to think of- Yeah, I guess this should have been, or you're agreeing with that. [00:20:16] Speaker 06: I'll just say, [00:20:18] Speaker 06: well that's tough language that this just should have been. [00:20:21] Speaker 01: I wouldn't have wanted to be on the losing end of that one, because it was very strongly worded that the district judge had done the wrong thing in the case. [00:20:31] Speaker 01: I think that we can, if the law is murky there, I think we can [00:20:35] Speaker 01: bypass it though by calling the act of war, and correctly calling it, a threshold issue. [00:20:42] Speaker 01: My colleague for the Iranian banks indicated why it was jurisdictional, but I don't think you have to quite go, and I would agree with much of the argument, but I don't think you have to go quite there. [00:20:52] Speaker 01: I think you can hold that under the tenant case, it is a threshold issue. [00:20:56] Speaker 01: something like abstention. [00:20:58] Speaker 01: I agree that most of these threshold issues tend to be common law doctrines as opposed to statutory doctrines, but this one here looks a lot like the threshold issue that was involved in tenant, which is a rule from an earlier case, Totten, that you may not maintain [00:21:16] Speaker 01: a lawsuit if it involves the United States' intelligence agreements with spies. [00:21:24] Speaker 01: And the court was very concerned about the political and national security overtones of that case and said, almost in a political questions kind of way, saying, we're going to treat this as a threshold issue because it's a sensitive area. [00:21:35] Speaker 01: And therefore, you don't need to get to jurisdiction first where you can rule on this tenant doctrine. [00:21:42] Speaker 01: And so I think the act of war exception looks very much like the doctrine that was at issue in the tenant case, which is a rule that you shall not maintain a particular type of lawsuit in a politically charged situation. [00:21:59] Speaker 01: And so whether it's really jurisdictional or just an element of the case or an affirmative defense, it doesn't really matter in that sense if it's a threshold consideration. [00:22:09] Speaker 02: But you don't think statute of limitations is a threshold issue like that? [00:22:12] Speaker 01: No, because I don't think it has the political questions overtones that this one does. [00:22:16] Speaker 01: In fact, I think that if the act of war exception wasn't in the statute, the courts would have had to have created it. [00:22:23] Speaker 01: Because I think what Congress was doing was saying determining liability of a party in the context of [00:22:31] Speaker 01: two nations having a war, or paramilitary having a war with a nation, is too fraught with political sensitivities for the US courts and judges to be determining liability or picking sides with that. [00:22:42] Speaker 01: You know, heinous things are happening, but it's not for the US courts to be picking sides and determining liability in those situations. [00:22:49] Speaker 06: I think it would have, and so what Congress did really with the act of war is actually- I definitely don't agree with that, although I realize that's like your fourth alternative, but I strongly disagree that Congress couldn't do that. [00:23:01] Speaker 06: that Congress couldn't enact a statute without the act of war exception. [00:23:07] Speaker 06: Well, it certainly could have, but I think the courts would have been saying the courts would have had to create an act of war exception. [00:23:13] Speaker 06: I don't see that. [00:23:15] Speaker 01: Well, I think the courts would have, if they're going to pay heed to the political questions doctrine, I think they would have said this is an area better left to the legislative and executive branches than to the judicial branch to determine liability in that context. [00:23:29] Speaker 01: But again, I don't think you need to quite say it's a political question. [00:23:32] Speaker 01: But because, like the tenant case, it's a threshold issue that uses the word maintenance and involves a sensitive area, [00:23:39] Speaker 01: it approaches the type of threshold issue that was there. [00:23:43] Speaker 01: And so if the case law is such as Forrest suggests that it could be, you could bypass the issue under this theory. [00:23:53] Speaker 01: As to the final issue, the act of war exception in the case, the parties in the other case in here have already talked quite a bit about it. [00:24:02] Speaker 01: But there are two elements that were relevant to Judge Lambert's decision, and that is whether [00:24:09] Speaker 01: Hezbollah's rockets attacks were any act occurring in the course of a war or armed conflict, and two, was that war or armed conflict between military forces of any origin. [00:24:21] Speaker 01: And I agree, obviously, with the Iranian banks that in the course of should mean something like during. [00:24:27] Speaker 01: It should be given its natural meaning. [00:24:31] Speaker 01: tied in time, place, and manner to the armed conflict, as opposed to the imprint of sort of the law of war into the words in the course of. [00:24:42] Speaker 01: I think Judge Lambert got that correct in that respect. [00:24:46] Speaker 01: And on the question of whether Hezbollah is a military force of any origin, one thing I wanted to point out is that Hezbollah [00:24:55] Speaker 01: is a little different than, say, al-Qaeda in the sense that his bullet is a political actor and part of the government of Lebanon. [00:25:02] Speaker 01: And as a result, it's a very unique situation. [00:25:03] Speaker 01: Judge Lamberth recognized this, that you have a designated terrorist organization that is part of a government and also as part of the government defending essentially the territory of Lebanon, whether right or wrong. [00:25:19] Speaker 06: Are you trying to say al-Qaeda couldn't benefit from the act of war exception, therefore? [00:25:23] Speaker 01: Well, it's distinguishable. [00:25:25] Speaker 01: It's a distinguishable situation in the sense that they might not be a military force of any type, as opposed to Hezbollah comes closer to being a military force of any type, because it's also a political entity with leadership in the Lebanon government. [00:25:39] Speaker 01: So it's essentially part of the sovereign. [00:25:43] Speaker 01: terrorists or fighters are part of, closer to what we think of a military, and that is a nation's offensive or defensive forces. [00:25:55] Speaker 01: And I also just want to conclude with, I'm not sure you need to get to whether they're a military force of any kind because the exception B in the active war exception allows for immunization, allows for the active war exception to apply whenever you have [00:26:14] Speaker 01: any act occurring in the course of an armed conflict between two nations. [00:26:19] Speaker 01: And I think Judge Lambert's fact finding was sufficient to call what was going on here a war between Lebanon and Israel. [00:26:28] Speaker 01: And these acts occurred in the course of a war between Lebanon and Israel. [00:26:33] Speaker 01: And it says any act that occurs in the course of a [00:26:38] Speaker 01: an armed conflict between two nations. [00:26:41] Speaker 01: If this is deemed a conflict between two nations, it makes no difference whether Hezbollah is a military force of any kind. [00:26:48] Speaker 01: Anybody trying to further the effort, the war effort between those two countries would be deemed to have taken an act in the course of an armed conflict between those two nations. [00:27:01] Speaker 01: So thank you. [00:27:02] Speaker 06: Thank you very much. [00:27:06] Speaker 06: Brief rebuttal. [00:27:13] Speaker 05: The Forrest decision criticized the district court over, quote, leapfrogging over the serious jurisdictional issues that Bailey, et cetera, later should have satisfied any jurisdictional concerns. [00:27:25] Speaker 05: And the next paragraph, what is clear, that we can turn directly to personal jurisdiction in order to resolve this case. [00:27:31] Speaker 05: I think it's clear from these experts. [00:27:32] Speaker 05: Obviously, there's no context here. [00:27:35] Speaker 05: But from the excerpt that I read, I think it's very clear that the court understood personal jurisdiction not to be a threshold issue. [00:27:41] Speaker 05: It was criticizing the District Court for leapfrogging over jurisdiction, and then turned to a type of jurisdiction. [00:27:47] Speaker 05: Just reading the decision, I think that's clear. [00:27:51] Speaker 05: If it is a merits issue, which I think it is, and I think it clearly is, I think this is a, I'm talking specifically, excuse me, about the Act of Order exception, is a rule that determines who may sue whom for what. [00:28:03] Speaker 05: It cannot be a threshold issue. [00:28:05] Speaker 05: That's very clear in the caseload. [00:28:07] Speaker 05: A merits issue is not a threshold issue. [00:28:09] Speaker 05: A threshold issue is just a slew of racist intent. [00:28:12] Speaker 05: The threshold issues are by definition non-merits. [00:28:18] Speaker 05: One final point regarding the relationship between Latina and Hezbollah. [00:28:22] Speaker 05: Lebanon, at least officially, unofficially is not so clear, but officially, and the UN as well, very clearly view Hezbollah as violating the sovereignty of Lebanon and occupying Lebanon's physical space and launching attacks from Lebanon's physical space. [00:28:36] Speaker 05: That was clearly spelled out in the UN declaration, the ceasefire declaration. [00:28:40] Speaker 05: that were party – there were the parties to which were Israel, Lebanon, and Hezbollah. [00:28:46] Speaker 05: And the relationship between the parties makes strikingly clear that Hezbollah was to – Israel was to withdraw, Lebanon was to move in for the purposes of asserting their sovereignty and preventing Lebanon from continuing their attacks. [00:28:58] Speaker 05: Any further questions? [00:29:00] Speaker 06: Thank both councils. [00:29:01] Speaker 06: The case is submitted. [00:29:02] Speaker 06: And Mr. Shelley, you are appointed by the court for this case, and the court greatly appreciates your excellent assistance. [00:29:08] Speaker 06: Thank you.