[00:01:14] Speaker 03:
May it please the court, my name is Aaron Stubbwood, senior attorney at the Delaware Riverkeeper Network and here on VAB, the Delaware Riverkeeper Network and the Delaware Riverkeeper as petitioners in this matter.

[00:01:28] Speaker 03:
Ultimately, the Delaware Riverkeeper Network here makes two primary claims regarding ways in which the Federal Energy Regulatory Commission, or FERC, has violated the National Environmental Policy Act.

[00:01:40] Speaker 03:
And while neither is dependent on the other, they do somewhat inform the other and dovetail.

[00:01:47] Speaker 03:
But one does not preclude binding for the other.

[00:01:51] Speaker 03:
Our first thing here is that the commission violated its duty to provide a brief discussion of reasonable alternatives.

[00:01:58] Speaker 03:
And the reasonable alternative here was what is known as the compression alternative.

[00:02:03] Speaker 03:
Just so I'm clear about that.

[00:02:04] Speaker 03:
Yes.

[00:02:05] Speaker 08:
You didn't raise this issue in the petition for rehearing.

[00:02:10] Speaker 08:
So your argument is not that they didn't reasonably discuss it, it's that they didn't reasonably discuss it in light of the existence of the draft EA, is that right?

[00:02:24] Speaker 03:
So our argument is that

[00:02:27] Speaker 08:
What happened here, we had, at the time that we submitted our hearing process... I know, but there was a back and forth in the briefs about what you're arguing, and I understood in your response that you agreed you were not arguing one thing.

[00:02:39] Speaker 08:
You wanted to say what it is you're not arguing, so that's clear?

[00:02:42] Speaker 03:
Yes, so what we're not arguing is that at the time of the hearing process, we should have brought up

[00:02:48] Speaker 03:
the fact that the compression alternative should be in the environmental analysis.

[00:02:53] Speaker 03:
Our argument here is that we did not have before us the only factual findings in the record

[00:03:02] Speaker 03:
regarding the compression alternative.

[00:03:05] Speaker 03:
We had no access to that information.

[00:03:07] Speaker 03:
We didn't know it existed.

[00:03:08] Speaker 03:
In fact, the entire substance of why the compression alternative should be reviewed, we couldn't have commented on in the hearing request, and we couldn't have brought that.

[00:03:19] Speaker 08:
It was in Tennessee's application, right?

[00:03:22] Speaker 03:
So the compression alternative was brought up in Resource Report 10, which is the part of the application.

[00:03:29] Speaker 03:
It's not a document generated by the Federal Energy Regulatory Commission.

[00:03:34] Speaker 02:
The only finding of facts... And it addressed compression.

[00:03:37] Speaker 03:
And it did discuss compression in a more abbreviated fashion than what we see in the draft environmental assessment.

[00:03:46] Speaker 03:
Application itself, there's no express statement that it was technically feasible.

[00:03:50] Speaker 03:
There's no express statement that it met the purpose and need of the project.

[00:03:54] Speaker 03:
And there was little to no discussion about the potential environmental benefits and also what the economic practicality of it is.

[00:04:03] Speaker 03:
All of that was absent from TGP's submission.

[00:04:06] Speaker 02:
The company submission was that the looping was more environmentally friendly

[00:04:15] Speaker 02:
than the compression because they would have had to clear new areas for the compression station and such, right?

[00:04:23] Speaker 02:
That was their submission.

[00:04:27] Speaker 03:
And that's, so I don't know that that's not even reflected in the draft environmental assessment either.

[00:04:35] Speaker 02:
No, but the final agency order cites with approval the company submission

[00:04:45] Speaker 02:
So if the company submission has an articulation of why looping is a better alternative than compression and the agency embraces it, why isn't that efficient?

[00:05:01] Speaker 03:
So that is not, I mean that is not what is required underneath it.

[00:05:05] Speaker 03:
What is required under NEPA is a brief discussion of the alternative, and a brief discussion is what you see in the draft EA, or even what you see, you know, something that takes several pages that actually discusses the issue, whereas

[00:05:22] Speaker 03:
there was no brief discussion other than perhaps maybe a footnote to one page of the applicant's... It's not in the four corners of the certificate order.

[00:05:36] Speaker 02:
No question about it.

[00:05:37] Speaker 02:
There is a site back to Resource Report 10, which has, I don't know, it's a page single-spaced and it weighs pros and cons

[00:05:52] Speaker 02:
I haven't seen a lot of these things, but if this were the agency order on explaining environmental pros and cons of the alternatives, it doesn't feel arbitrary and capricious to me.

[00:06:07] Speaker 02:
It just lays out.

[00:06:08] Speaker 03:
I think it certainly does in the context that their previous only other finding of fact that they wrote out in the draft environmental assessment said the exact opposite.

[00:06:18] Speaker 03:
Sorry, the Federal Energy Regulatory Commission staff.

[00:06:23] Speaker 05:
Staff, exactly.

[00:06:24] Speaker 05:
Staff writes the, from my understanding.

[00:06:27] Speaker 05:
You're saying that an agency is causing hopeless contradiction if there's disagreement between the staff and the agency itself?

[00:06:39] Speaker 03:
Where there is no explanation as to why there is a complete reversal between the recommendations and only factual findings on the matter.

[00:06:46] Speaker 05:
I think that's quite a

[00:06:48] Speaker 05:
change in administrative law doctrine.

[00:06:52] Speaker 05:
Agencies have certainly found arbitrary and capricious for self-contradicting themselves, but they usually aren't bound to have acted arbitrarily and capriciously for disagreeing with their staff.

[00:07:08] Speaker 05:
And even failing to explain their disagreement with their staff.

[00:07:15] Speaker 03:
I suppose the issue is the lack of a record on the evidence that this project does not meet the purpose of any other project, is not economically practical or feasible.

[00:07:31] Speaker 05:
Is there any requirement that draft EAs be published?

[00:07:37] Speaker 03:
No.

[00:07:39] Speaker 03:
At least not for the federal energy records.

[00:07:42] Speaker 05:
So it's entirely fortuitous.

[00:07:45] Speaker 05:
that this came your way.

[00:07:47] Speaker 05:
And what does it really add besides a sort of rhetorical peg to your claim?

[00:07:55] Speaker 05:
The claim which existed at the point where the issue was resolved in the initial order of the Commission.

[00:08:09] Speaker 03:
there is an advantage, despite the fact that the project is now constructed and in operation, there is still value in having the agency explain properly what the compression alternative was.

[00:08:23] Speaker 03:
The agency now contradicts itself in its own briefing as to what it is.

[00:08:27] Speaker 05:
We're talking about your reasonable grounds, Benny, for a delayed petition for rehearing.

[00:08:36] Speaker 05:
And it turns entirely on the existence of this document, staff document, that fortuitously fell into your hands.

[00:08:47] Speaker 05:
Not on the actual substance of the alternative.

[00:08:54] Speaker 03:
But I think that the substance of the alternative, when properly considered,

[00:08:58] Speaker 03:
It's hard to come to a different conclusion other than it's not, that that really is and would likely be the preferable alternative because it impacts far fewer resources in all capacities by every metric.

[00:09:12] Speaker 05:
Now that doesn't seem to me the reading of the draft EA at all.

[00:09:18] Speaker 03:
The draft EA considered it to be comparable.

[00:09:21] Speaker 03:
It said they would be comparable in environmental impacts.

[00:09:25] Speaker 03:
I would have liked to have challenged that notion

[00:09:28] Speaker 03:
In a comment.

[00:09:29] Speaker 05:
These companies could have challenged the position taken by the pipeline.

[00:09:34] Speaker 03:
They didn't say anything about its environmental, whether or not it was environmentally comparable or better or worse.

[00:09:43] Speaker 03:
That would be something written by the applicant.

[00:09:48] Speaker 03:
Here, the EA is required to have a discussion of reasonable alternatives.

[00:09:52] Speaker 03:
And it just didn't happen.

[00:09:54] Speaker 08:
How do you deal with the Theodore Roosevelt Conservation Partnership case?

[00:10:00] Speaker 08:
So with regard to... Well, that case says, I'm going to read you two passages.

[00:10:05] Speaker 08:
One says, before the district court, appellants also sought to introduce evidence about a draft EIS that discussed wind energy development.

[00:10:16] Speaker 08:
Appellants plan to use the evidence to argue that the Atlantic Rim Project's cumulative impact analysis arbitrarily and capriciously failed to consider the impact of the wind energy development projects.

[00:10:27] Speaker 08:
The district court, however, excluded the evidence, which was not a part of the administrative record.

[00:10:35] Speaker 08:
The court therefore refused to entertain the appellant's claims based on that evidence, and we upheld that.

[00:10:43] Speaker 08:
In another part of the opinion, we say the fact that

[00:10:46] Speaker 08:
The Bureau has in the past provided draft EAs for public comment in some circumstances, does not compel them to do so in every instance.

[00:10:56] Speaker 08:
So in that case, we both held that they didn't have to publish that draft EA, and we also held that because it was not part of the administrative record, it didn't have to be addressed by the agency.

[00:11:09] Speaker 08:
Isn't that exactly what we have here?

[00:11:12] Speaker 03:
Right now, the draft EA is part of the certified administrative record that was submitted to this court.

[00:11:19] Speaker 08:
No, but it wasn't part of the administrative record by which we mean the record in the case and put on the record.

[00:11:26] Speaker 08:
It wasn't put on the record at the time when the decision was.

[00:11:28] Speaker 08:
It's only here because you found it in another manner.

[00:11:31] Speaker 03:
And we submit that it should have been.

[00:11:33] Speaker 03:
And in fact, it was in the context of the court.

[00:11:35] Speaker 03:
I know.

[00:11:35] Speaker 08:
I'm asking you why should it have been in light of Theodore Roosevelt?

[00:11:41] Speaker 03:
I think the draft environmental assessment came to specific conclusions on issues that were not later addressed.

[00:11:53] Speaker 03:
In other words, I don't know the specifics of what was or was not considered in the final environmental impact statement

[00:12:04] Speaker 08:
But the court held a draft, at least in that case, and it seems like as a general matter, that draft EAs or draft EISs don't have to be put on the record and can't be argued from.

[00:12:19] Speaker 08:
What makes this one different?

[00:12:23] Speaker 08:
I mean, in that one, they wanted to raise an argument about wind energy, and they weren't able to because it was only in a draft EIS and they hadn't raised it otherwise.

[00:12:33] Speaker 03:
The cases that we cite to, for example, the Wilderness Society case, found that where the government takes a position and makes a finding of fact on that position, and later

[00:12:50] Speaker 03:
The agents as an agency as the agency and the agency later comes to the exact opposite conclusion again This is staff changing changing their mind there needs to be a reasonable explanation as to why I have the first one a final agency decision in wilderness It was the draft EA if I was our draft EA it was a dress and was that put on the record I I don't know if it was put on the record in that case.

[00:13:15] Speaker ?:
I

[00:13:16] Speaker 03:
But again, I just would like to make clear that it is also staff disagreeing with itself, right?

[00:13:22] Speaker 03:
So you have the staff writing the draft EA and the staff coming to the conclusion in the final EA that the compression alternative would not meet the purpose and need of the project.

[00:13:32] Speaker 08:
Is it only a staff decision in the final EA?

[00:13:36] Speaker 03:
No, in the final EA it's the agency decision.

[00:13:39] Speaker 03:
So the staff drafts the EA.

[00:13:42] Speaker 03:
The commission order is what's adopted by them.

[00:13:45] Speaker 03:
That's the commissioners adopting the findings in the environmental assessment.

[00:13:50] Speaker 03:
Right.

[00:13:50] Speaker 08:
So at that point, you have a final decision by the agency.

[00:13:53] Speaker 08:
Right.

[00:13:54] Speaker 08:
Not just a staff decision anymore.

[00:13:55] Speaker 08:
They've adopted it.

[00:13:56] Speaker 08:
Yes, they've adopted it, correct.

[00:13:59] Speaker 05:
Could we jump to the segmentation?

[00:14:01] Speaker 05:
Sure.

[00:14:01] Speaker 05:
And particularly the question of how, in your view, typing out

[00:14:10] Speaker 05:
previous objections to the possible foreseen outcome is different from incorporating them by reference in a request for rehearing.

[00:14:27] Speaker 05:
What is your substantive distinction between this case and Allegheny?

[00:14:34] Speaker 03:
I guess your question is, what substantively could we have learned or what value would be added in considering together?

[00:14:40] Speaker 05:
No, I'm asking you, what is the difference between saying we object on the following grounds and then typing in what you said before and saying we object on precisely the grounds set forth before at such and such a place.

[00:15:02] Speaker 03:
Sorry, I apologize.

[00:15:03] Speaker 03:
You're getting to the jurisdictional argument.

[00:15:05] Speaker 03:
Yes.

[00:15:10] Speaker 03:
So there was very specific allegations regarding segmentation that we made in our rehearing request, 24 pages worth of them.

[00:15:17] Speaker 05:
And your thought is that the nothing that the commission said

[00:15:26] Speaker 05:
Was in any way a useful defense of its outcome?

[00:15:30] Speaker 03:
No.

[00:15:31] Speaker 03:
Our position was that they didn't satisfy what our arguments were.

[00:15:37] Speaker 03:
They didn't adequately respond to our arguments.

[00:15:40] Speaker 05:
And therefore... Wouldn't it have been useful to review in court to point to the inadequacies of the response?

[00:15:48] Speaker 03:
Of the order itself.

[00:15:50] Speaker 03:
Yes.

[00:15:50] Speaker 03:
Which we state are exactly the same.

[00:15:54] Speaker 03:
There was no change

[00:15:57] Speaker 03:
There was no change in how they were responding to our arguments.

[00:16:04] Speaker 05:
It doesn't seem to me that Allegheny took such a charitable view of incorporation by reference.

[00:16:11] Speaker 05:
It said it was a jurisdictional failure, period.

[00:16:15] Speaker 03:
Yeah, so that's why we wanted to make very clear in our rehearing request that they didn't, we weren't just, we made very clear in the rehearing request that they didn't properly respond to all of our allegations here.

[00:16:28] Speaker 03:
And frankly, the rehearing request at FERC has come to the point where it's,

[00:16:33] Speaker 03:
is essentially a formality.

[00:16:36] Speaker 03:
I'm unaware of a single petition.

[00:16:38] Speaker 05:
When you say it's formality, I have to say I've found reviewing these cases that very often what the commission says in the order on rehearing is much more revealing than what went before because of the provocation of the request for rehearing.

[00:16:56] Speaker 03:
Our arguments as we framed them in the EA didn't change.

[00:17:00] Speaker 03:
There was absolutely no difference between, there was no daylight between what we argued were the deficiencies in the EA and their response because there could be none in our opinion.

[00:17:08] Speaker 03:
There could be no adequate explanation for how these products were not improperly segmented.

[00:17:18] Speaker 03:
The review was improperly segmented.

[00:17:22] Speaker 08:
Other questions from the bench?

[00:17:23] Speaker 03:
Thank you.

[00:17:43] Speaker 04:
May it please the Court, James Danley on behalf of the Respondent Federal Energy Regulatory Commission.

[00:17:48] Speaker 04:
I would like to – I believe that our briefs should carry the day and more than adequately represent our position, but there are a couple of things I'd like to take a minute to address, some potential confusion to clear up.

[00:18:01] Speaker 04:
First, the resource report that was attached to the application

[00:18:06] Speaker 04:
in page 1016 of the resource report, that's at J132, contains a discussion that does in fact include the resource report's determination regarding the environmental consequences of the two possible derivatives.

[00:18:20] Speaker 04:
That's in the final paragraph of 1042.2, saying that even though there are disturbances of vegetation in the looping program,

[00:18:29] Speaker 04:
the new project will be allowed to revegetate to minimize and mitigate possible environmental impacts.

[00:18:35] Speaker 04:
And that is a fairly clear declaration by the applicant for what it submitted in its resource report.

[00:18:43] Speaker 04:
The two main points that I think are worth saying right now is that there seems to be a bit of confusion with terminology.

[00:18:52] Speaker 04:
There was no draft environmental assessment.

[00:18:55] Speaker 04:
There is a – I think that the terminology is kind of bleeding into the terms we use for EISs.

[00:19:01] Speaker 04:
What there was was an internal, pre-decisional staff document, and the idea that that is subject to the same requirements, let's say, under State Farm or BrandEx, that there has to be some connection made between

[00:19:15] Speaker 04:
one position held at one time and a position held later simply isn't true.

[00:19:19] Speaker 04:
This is the, even though there of course was no privilege invoked here, the same principles apply.

[00:19:27] Speaker 04:
In order for a staff and an agency to adequately undertake its job of reviewing the material before it on behalf of the commission to make submissions to the commissions for consideration,

[00:19:38] Speaker 04:
It has to be able to bandy about ideas and think and have procedure in process.

[00:19:43] Speaker 04:
And there were many drafts, I'm sure, along the way, even though they're not reflected in the record.

[00:19:48] Speaker 04:
The commission never made a finding of fact.

[00:19:51] Speaker 04:
in this so-called draft, this internal, pre-decisional document.

[00:19:55] Speaker 04:
That was entirely the process that staff, the experts, the technical experts at FERC went through to produce a series of findings that would then be submitted to the Commission, the multi-member body that speaks only through its orders, only through its orders.

[00:20:08] Speaker 08:
Why was it sent to the Corps, or was it sent in another case to the Corps?

[00:20:13] Speaker 04:
Yes, that is not in the record, but my presumption

[00:20:16] Speaker 04:
This predates my arrival at FERC, but my presumption is that it was sent in part of the process of consulting with one of the consulting agencies, going over the alternatives and seeing what it was that the agencies that were involved had to say about the EA as it was being developed.

[00:20:31] Speaker 04:
And how did it get in there, the administrator record?

[00:20:34] Speaker 04:
That I can't say.

[00:20:35] Speaker 04:
I do not know, Your Honor.

[00:20:38] Speaker 04:
So keeping in mind that this is a draft internal document, I think this has already been highlighted.

[00:20:46] Speaker 04:
But that document is legally irrelevant.

[00:20:51] Speaker 04:
It cannot serve as a predicate to excuse the failure to meet the jurisdictional requirements of our hearing for the compression alternative.

[00:21:00] Speaker 04:
It simply is not relevant.

[00:21:02] Speaker 04:
It would be like finding the discovery of any other document that has no meaning because there is no entitlement for the petitioner to comment on internal staff documents, of which there could be thousands, none of which are relevant to the case.

[00:21:15] Speaker 02:
So let's assume we agree with you on that and we don't consider the draft.

[00:21:20] Speaker 02:
Then we still have the final order of the commission which doesn't consider compression and it just has this citation to the application report but it's not

[00:21:39] Speaker 02:
It's not entirely clear that it's being cited for an environmental proposition.

[00:21:44] Speaker 02:
It's cited for the proposition that the project couldn't be satisfied by compression.

[00:21:50] Speaker 02:
I mean, why is that arguably perfunctory and ambiguous citation enough?

[00:22:00] Speaker 02:
consideration of the compression alternative.

[00:22:07] Speaker 04:
So the order, the certificate order, stated that there were no reasonable outcomes that would have significantly fewer environmental impacts

[00:22:16] Speaker 04:
it did cite, as you're correct, to the resource report from the applicant.

[00:22:22] Speaker 04:
That was one of a series of different alternatives that were in the sentence at paragraph 65 or 66.

[00:22:30] Speaker 04:
And you're correct that there is not a luxuriation in the subject, but it certainly was directly responded to.

[00:22:38] Speaker 04:
And the commission referenced the specific alternative as it was put forth by the petitioner.

[00:22:45] Speaker 04:
Given the fact that the applicant had conducted the review, went into detail about exactly how much damage would be caused by it versus the looping proposal, that does seem as though it would satisfy the requirement of examining it and raising it, certainly for the sake of bringing it to the attention of anybody who wishes to further raise the subject.

[00:23:16] Speaker 04:
that everybody who was a participant in this case was on notice about the compression alternative from the opening salvo of the process.

[00:23:24] Speaker 04:
It was in the resource report.

[00:23:25] Speaker 04:
There was an opportunity to bring up the compression that they had already been put on notice for during the project scoping phase, at the time the EA was published, and upon the issuance of the certificate order.

[00:23:38] Speaker 04:
And at no time was it raised.

[00:23:39] Speaker 04:
It was only after this internal

[00:23:43] Speaker 04:
pre-decisional document came to light, which the petitioners seek to cast in the light of a smoking gun when, in fact, it was never the Commission that made this determination.

[00:23:51] Speaker 04:
The Commission never spoke about it.

[00:23:53] Speaker 04:
So I'm also happy to just take one second, if you'll indulge me, to talk about the issue of segmentation and why it is that it is unacceptable to simply recite the contents of the EA comments.

[00:24:15] Speaker 04:
What is required is that a request for rehearing state the grounds specifically that caused the agreement and the order.

[00:24:24] Speaker 04:
And to rehash the exact comments made in the EA could potentially be acceptable if there was a straight-on appropriation of the EA by reference, but there wasn't one.

[00:24:34] Speaker 04:
To give an example, the petitioner says the EA failed to look at cumulative impacts.

[00:24:39] Speaker 04:
That is in their EA comments at 16 to 20, and that's JA 350 to 354.

[00:24:46] Speaker 04:
The certificate order addresses at length those comments that are submitted by the petitioner.

[00:24:51] Speaker 04:
And again, that's at the certificate order at 88 to 90, JA 4041.

[00:24:57] Speaker 04:
It says that the EA concorded

[00:25:01] Speaker 04:
with regard to cumulative impacts with CEQ guidance, because first, there was resource-specific geographic scopes were laid out.

[00:25:10] Speaker 04:
The EA determined that the effects would be minimal, temporary, and contained within the adjacent construction areas and right-of-ways, and that the actions located outside the boundaries cannot result in cumulative impacts.

[00:25:26] Speaker 04:
Those are substantive responses to comments filed to the environmental assessment.

[00:25:31] Speaker 04:
And those are, it is the reasoning that would cause the agreement, and it's the reasoning in that certificate order that would have to be specifically laid out in the rehearing request to satisfy that jurisdiction.

[00:25:43] Speaker 04:
Do you know any case that's ever held what you just said?

[00:25:46] Speaker 08:
I'm sorry, Your Honor.

[00:25:47] Speaker 08:
Is there any case that has ever held what you just said, that it's not possible to simply, for a petitioner to conclude that the agency is just not listening and we're just going to repeat what we said before, as long as they do repeat what they said before.

[00:26:04] Speaker 08:
Is there any case ever held that that doesn't satisfy the jurisdictional requirement?

[00:26:08] Speaker 02:
No, Your Honor, I've looked and there's no case that says that.

[00:26:13] Speaker 02:
All it says is that the objection must have been urged before the Commission on rehearing.

[00:26:21] Speaker 04:
It, it, well, Your Honor, no, not quite.

[00:26:24] Speaker 02:
No objection, no objection shall be considered by the Court unless such objection shall have been urged before the Commission.

[00:26:32] Speaker 02:
Yes, but that is.

[00:26:34] Speaker 02:
It doesn't seem like it's a strict preservation,

[00:26:41] Speaker 02:
an unusually strict preservation requirement.

[00:26:44] Speaker 04:
So you're citing 717RB there.

[00:26:48] Speaker 04:
Right.

[00:26:49] Speaker 04:
One of the predicates for seeking a petition for review is that you have a proper rehearing request.

[00:26:56] Speaker 04:
That's 177RA.

[00:26:58] Speaker 04:
And it says repeatedly that it is the order that agrees.

[00:27:02] Speaker 04:
It is the order, agreed by an order 30 days after the issuance of such order.

[00:27:09] Speaker 04:
the commission can aggregate or modify its order.

[00:27:12] Speaker 04:
It is the order that's at issue, not the environment itself.

[00:27:14] Speaker 08:
Well, they're agreed by the decision.

[00:27:17] Speaker 08:
All it says is the application – in A, the application for rehearing shall set forth specifically the ground or grounds upon which such application is based.

[00:27:27] Speaker 08:
This is, I don't know, 20 pages of specifications about

[00:27:32] Speaker 08:
what their problem is.

[00:27:33] Speaker 08:
Now, it may well be that their response to your response is too late to make that.

[00:27:39] Speaker 08:
Right.

[00:27:39] Speaker 08:
Maybe that's right.

[00:27:41] Speaker 08:
But they can certainly raise the issue already and we have to decide whether your response answers their original response.

[00:27:47] Speaker 08:
But the statute would

[00:27:51] Speaker 08:
this statute would have to be a lot clearer in cutting off jurisdiction here, because that's what you're asking us to do.

[00:27:59] Speaker 08:
The only cases in which we've ever done that before, am I right, are the ones where either there is a

[00:28:08] Speaker 08:
express effort to simply say, we incorporate our other arguments, right?

[00:28:13] Speaker 08:
Or we refer you to our other arguments, and that's all there is, right?

[00:28:17] Speaker 04:
That you are completely correct that there are no cases that go for this proposition that I'm setting forth.

[00:28:21] Speaker 04:
I do think that they're tantamount to one another, and it is worth – we're getting into some nuance here, I realize, and I agree.

[00:28:30] Speaker 04:
They are potentially aggrieved by the contents of the EEA.

[00:28:33] Speaker 04:
and they raise the exact objections again.

[00:28:36] Speaker 04:
But the entire NEPA process that goes into informing the decision-making of the Commission has a series of steps.

[00:28:42] Speaker 04:
One of them is you raise your objections to the environmental assessment to say, here's where we think you made an error, this is what you should consider.

[00:28:48] Speaker 04:
The Commission takes all of those comments along with the EA and the work that staff did

[00:28:53] Speaker 04:
They look at them, they resolve them together, and then make a determination.

[00:28:56] Speaker 08:
I understand why it would be better, from a policy-making point of view, if each side would give their explanation and the other would respond to their explanation with their explanation.

[00:29:05] Speaker 08:
That's why we have opening briefs, respondents briefs, reply briefs.

[00:29:09] Speaker 08:
The question is whether Congress has imposed this here as a matter of federal judicial jurisdiction.

[00:29:15] Speaker 04:
That's the issue.

[00:29:19] Speaker 04:
They certainly Congress wanted there to be rehearing is not every century scheme for agency.

[00:29:25] Speaker 04:
They specifically wanted the experts at FERC to be the people to pass on the objections on these highly technical subjects first.

[00:29:30] Speaker 04:
The commissioners will have the first crack at seeing what the errors are.

[00:29:33] Speaker 04:
That tees up every one of the windowed-down subjects for your review.

[00:29:37] Speaker 04:
That is all contemplated in the process.

[00:29:39] Speaker 04:
And the reason why, in 17.7 RA, it says she'll state specifically what the grounds are is so that they can produce that very winnowing and to list the errors in the logic.

[00:29:50] Speaker 08:
What does it say anywhere in NA that the purpose is to do what you just said?

[00:29:55] Speaker 08:
We generally don't look outside this.

[00:29:57] Speaker 04:
No, it doesn't.

[00:29:58] Speaker 04:
That's true.

[00:29:59] Speaker 04:
But certainly, case law says,

[00:30:01] Speaker 04:
For example, in Bangor, I'm going to get this not exactly right, but in Bangor it says that the purpose of a hearing is to give the commission an opportunity to bring its expertise to bear so that it is properly presented to the generalist court.

[00:30:13] Speaker 04:
So you're right, that is not in the statute, but that is the purpose as case law is developed.

[00:30:17] Speaker 04:
I see my time is up here.

[00:30:19] Speaker 05:
Do you have a question?

[00:30:20] Speaker 05:
I have one remark about the segregation.

[00:30:22] Speaker 05:
You have a map in the green, color, no less,

[00:30:27] Speaker 05:
showing what it is, which is great.

[00:30:30] Speaker 05:
But you didn't have a map duplicating what happened in the 2014 case, and the juxtaposition of those maps would have been very useful to the court.

[00:30:42] Speaker 04:
I will – I appreciate the criticism.

[00:30:45] Speaker 04:
Thank you.

[00:30:47] Speaker 08:
And in future cases, he'll give us two color maps.

[00:30:50] Speaker 08:
I will use them.

[00:30:52] Speaker 08:
All right.

[00:30:53] Speaker 08:
Any – oh, we have an intervener.

[00:30:55] Speaker 08:
You have three minutes, I believe.

[00:31:02] Speaker 01:
May it please the Court, I have just a few comments to make on behalf of the Intervener Tennessee Gas Pipeline Company.

[00:31:09] Speaker 01:
First of all, I point out that the Commission, as has been stated earlier, the Commission did note in its order a reference to the compression alternative and did reference specifically to the

[00:31:25] Speaker 01:
And we relied upon that.

[00:31:29] Speaker 01:
We have to conclude that.

[00:31:31] Speaker 01:
And, Jay, the Resource Report 10 was discussed with you earlier.

[00:31:35] Speaker 01:
I point out in addition in Resource Report 10, in addition to the environmental distinctions between the compression alternative and the looping, there was also some practical concerns associated with the compression

[00:31:52] Speaker 01:
concerned the additional costs associated with operating the compressor stations, the two compressor stations, and the fuel costs associated with operating those stations.

[00:32:02] Speaker 02:
Does it make any difference that this wasn't done in the EA itself?

[00:32:08] Speaker 02:
I mean, it may be a hyper-technical point, but it's the environmental assessment that is supposed to consider those issues.

[00:32:15] Speaker 01:
Well, this is an environmental assessment, Your Honor.

[00:32:17] Speaker 01:
It's not an environmental impact statement.

[00:32:20] Speaker 02:
Oh, I know.

[00:32:20] Speaker 02:
It's the certification order that has that cross-reference to your resource report 10.

[00:32:29] Speaker 01:
I think that if there is a distinction, the distinction is that the commission was involved in both instances.

[00:32:35] Speaker 01:
It's its environmental assessment that it adopted.

[00:32:38] Speaker 01:
And in addition, it's its final order is an indication as to what it considered in reaching its conclusions.

[00:32:46] Speaker 01:
And I would point out also that this Court has found that it will uphold an agent decision of less than ideal clarity.

[00:32:53] Speaker 01:
If the agency's path can reasonably be discerned, then I think that's the case here.

[00:33:00] Speaker 01:
We would agree with the statements concerning the fact that there's no requirement that the Commission had to publish the EA, the draft EA, and we agree that it's not technically a draft EA.

[00:33:15] Speaker 01:
And unless your honors have some questions for me, that's all I have to say.

[00:33:21] Speaker 01:
Apparently we don't.

[00:33:22] Speaker 08:
Thank you very much.

[00:33:22] Speaker 08:
You're welcome.

[00:33:27] Speaker 08:
So you can have the last 45 seconds of the intervener's time.

[00:33:31] Speaker 08:
Thank you.

[00:33:32] Speaker 03:
Thank you, Your Honor.

[00:33:33] Speaker 03:
First, I'd just like to address Judge Williams, your concern about the Allegheny case.

[00:33:40] Speaker 03:
I just want to make clear that that case involved trying to bring in allegations that were outside of the rehearing request into later judicial review.

[00:33:52] Speaker 03:
So in other words, they were asserting import issues that they didn't assert in their rehearing request.

[00:33:59] Speaker 05:
Yeah, I think that was one problem.

[00:34:00] Speaker 05:
The other problem was that certain problems they raised solely by saying that they raised them for and pointing to where they had.

[00:34:10] Speaker 03:
And I think that brings maybe me around to this other point.

[00:34:15] Speaker 03:
And we brought up the example of cumulative impacts and the commission's response to cumulative impacts.

[00:34:20] Speaker 03:
And one of the main issues that we had was that their cumulative impacts analysis was deficient because it didn't consider or incorporate the destruction that was wrought, as the language in the case law suggests, of the prior 300-2 pipeline projects.

[00:34:37] Speaker 03:
None of all of that record evidence that was available to them, even inspection reports that they themselves generated, were not included in the environmental analysis.

[00:34:51] Speaker 03:
And that argument didn't change after the hearing order because

[00:34:55] Speaker 03:
They couldn't.

[00:34:58] Speaker 03:
There was no way for them to change what was in the EA in the order.

[00:35:03] Speaker 03:
And that's the type of argument that we make now in court are exactly the ones that we made with regard to the EA.

[00:35:15] Speaker 03:
Thank you.

[00:35:16] Speaker 08:
We'll take the matter on our submission.

[00:35:18] Speaker 08:
We'll take a brief break while the seats are changed.

[00:39:07] Speaker 00:
Stand please.

[00:39:48] Speaker 07:
May it please the court, Edward McAllister of the Perlis Law Firm for the appellants.

[00:39:52] Speaker 07:
The Anti-Terrorism Clarification Act is only the latest in a long series of laws passed by Congress to deal with and protect the American people from acts of terrorism supported or sponsored by the PA and the PLO.

[00:40:06] Speaker 07:
Also this year, the Taylor Force Act was passed, which requires the PA and the PLO to cease payments to individuals who have been convicted of crimes against Israelis or Americans and to take credible steps to prevent acts of terrorism within their jurisdiction.

[00:40:22] Speaker 07:
The ATCA was passed unanimously by both chambers of Congress and then signed immediately by the president.

[00:40:30] Speaker 07:
The purpose of the ATCA is to enable Americans to access to courts to bring to justice the terrorists and their supporters who harm them.

[00:40:41] Speaker 07:
This is to facilitate the Anti-Terrorism Act, which was passed in 1991, and the case below is brought under the Anti-Terrorism Act.

[00:40:48] Speaker 07:
The purpose and the goal of the Anti-Terrorism Act

[00:40:50] Speaker 07:
was to start terrorism by financially penalizing terrorists and their supporters by financially compensating their victims.

[00:40:58] Speaker 02:
We still have some factual uncertainty whether it will apply.

[00:41:04] Speaker 02:
Yes, Your Honor.

[00:41:07] Speaker 07:
What we would say is that we have identified, according to public records, a single financial account at least, which continues to float to the PA and the PLO.

[00:41:17] Speaker 07:
It's an INCEL account, which qualifies under the ATCA.

[00:41:22] Speaker 02:
Right, suppose they stop taking Foreign Assistance Act funds.

[00:41:27] Speaker 07:
We have no reason to believe they will.

[00:41:29] Speaker 02:
Their briefs... Maybe yes, maybe no.

[00:41:31] Speaker 02:
My only point is we don't know yet.

[00:41:33] Speaker 02:
So... That's correct, John.

[00:41:35] Speaker 02:
It would seem there's... We can't, at least as of right now,

[00:41:40] Speaker 07:
rule in your favor on that basis.

[00:42:00] Speaker 07:
There are two elements of the statute.

[00:42:02] Speaker 07:
One is whether the PA or the PLO are establishing, maintaining, or procuring an office or facility of any kind.

[00:42:10] Speaker 07:
And two is whether they're accepting aid under certain programs.

[00:42:14] Speaker 07:
And the status quo currently is that they are qualified under both components.

[00:42:19] Speaker 07:
But from their briefs, we don't know what the truth of the matter will be on January 31st.

[00:42:23] Speaker 02:
And the office is?

[00:42:26] Speaker 02:
An office in New York associated with United Nations activities?

[00:42:32] Speaker 07:
Yes, but the statute itself says maintenance of an office, which is more than just simply operating an office.

[00:42:42] Speaker 05:
I'm sorry, exactly what state you're drawing there.

[00:42:46] Speaker 07:
The language used in the ATCAs is quite broad.

[00:42:50] Speaker 07:
It's maintenance, establishment, or procurement of any office or facility.

[00:42:55] Speaker 07:
The PA would argue that the mere operation of the mission in New York is not a contact that can be taken into effect because it's there for the purpose of the peace process and under the United Nations.

[00:43:09] Speaker 07:
However, the act is drawn much more broadly than that, and we believe that we could find expenditure of funds revolving around the presence of the mission, which were qualified under the ATCA.

[00:43:20] Speaker 07:
But that is an issue that would probably be best decided by further fact-finding.

[00:43:26] Speaker 02:
Is there any argument that insofar as that office functions like an embassy, it's not within the jurisdiction of the United States?

[00:43:38] Speaker 07:
Your Honor, we would have to get enough fact-funding on that issue.

[00:43:43] Speaker 07:
We don't have that.

[00:43:44] Speaker 02:
I'm saying, assume it functions exactly like an embassy.

[00:43:49] Speaker 02:
Would that office be, I think this is a legal question, right?

[00:43:52] Speaker 02:
I mean, is the, whatever, United Kingdom's office in New York for their United Nations delegation within the jurisdiction of the United States, or is it,

[00:44:06] Speaker 02:
Well, Your Honor, because of its diplomatic status, I don't know.

[00:44:10] Speaker 07:
I apologize for interrupting you.

[00:44:12] Speaker 07:
In the 90s, in the Klemhoffer case, the court there found that the mission, while it was operating as the UN mission, that there were other subsidiary activities going on surrounding that.

[00:44:23] Speaker 02:
Okay, so fact-finding on that.

[00:44:25] Speaker 02:
Yes.

[00:44:25] Speaker 02:
But just on the legal question, do you have a rifle-shot argument that that can't be right because they're not recognized as a foreign state?

[00:44:37] Speaker 07:
Well, it would not qualify as an embassy of another country.

[00:44:40] Speaker 07:
The question is whether the UN treaty, what exceptions the UN treaty would develop on that facility.

[00:44:49] Speaker 02:
And I guess I'm just making the point that we have a good bit of both legal and factual work to do before we could responsibly apply this.

[00:44:59] Speaker 07:
Yes, Your Honor.

[00:45:02] Speaker 07:
But if the status quo remains true on January 31st, then the law would allow for district court to assert jurisdiction under the ATC.

[00:45:13] Speaker 02:
Why would we remand rather than just order a submission, a supplemental submission to this court and if

[00:45:22] Speaker 02:
The answer to the questions I've been putting to you seem pretty straightforward.

[00:45:29] Speaker 02:
We could just resolve the issues ourselves, and if it looks messy, we could remand.

[00:45:34] Speaker 07:
Your Honor, this court has procedures that it can take, which I'm sure could be more efficient, and I leave that to the discretion of the court.

[00:45:42] Speaker 07:
But to your point, there is further fact-finding that will have to be done, I believe, by January before or on after January 31st.

[00:45:54] Speaker 07:
When Congress and the President pass a law regarding foreign policy, it requires a respectful review by the courts.

[00:46:03] Speaker 07:
There is no national priority than combating terrorism.

[00:46:10] Speaker 07:
This statute is a statute that regulates the procedural rights of the parties.

[00:46:16] Speaker 07:
It does not regulate the primary conduct of the PA or the POL.

[00:46:20] Speaker 07:
As such, it applies immediately.

[00:46:22] Speaker 07:
The PA and the PLO tried to argue that the anti-retroactivity presumption of Landgraf applies in this case.

[00:46:29] Speaker 07:
However, it does not, because this case only creates or takes away jurisdiction under US v. Alabama, where the Congress passed a law while the case was pending before the Supreme Court, creating jurisdiction for the case.

[00:46:43] Speaker 07:
The Supreme Court found that that law only regulated the procedural rights of the parties, not their substantive rights.

[00:46:51] Speaker 07:
The same case we find here.

[00:46:55] Speaker 07:
Many of the PA and the PLO's constitutional challenges fall away

[00:47:01] Speaker 07:
when Daimler is examined and we see that the individual still maintains a right to consent or waive his or her right to a personal jurisdiction defense.

[00:47:11] Speaker 07:
In fact, in the Daimler case itself, one of the parties waived their right to a personal jurisdiction defense, and the court found that it was at home for the purposes of that case.

[00:47:22] Speaker 07:
Waiver is a form of consent, and the Irish insurance... It has to be voluntary, though.

[00:47:27] Speaker 07:
Yes, Your Honor, voluntary.

[00:47:28] Speaker 07:
Knowing and voluntary.

[00:47:30] Speaker 02:
And I can certainly imagine some statutes of deemed consent that don't look very voluntary.

[00:47:39] Speaker 07:
Yes, Your Honor, and there's an excellent opinion from the Second Circuit by Judge Carney, Brown v. Martin, Martin, Lockheed Martin in 2016.

[00:47:49] Speaker 07:
The judge there was looking at a statute which would have

[00:47:52] Speaker 07:
exposed a party to general jurisdictions of the courts of Connecticut had a business merely signed on to register in the state.

[00:47:59] Speaker 07:
And in fact, if they had not even been conducting business in the state, they were arguing that that created general jurisdiction over that corporation for any party, for any incident.

[00:48:11] Speaker 07:
The statute in the climbing case is much different.

[00:48:14] Speaker 07:
It only exposes the PA and the PLO to specific jurisdiction for this narrow band of cases.

[00:48:19] Speaker 07:
It is not a general jurisdiction statute.

[00:48:22] Speaker 07:
And furthermore, there's a 120-day period since the enactment of the law.

[00:48:26] Speaker 07:
The PA and the PLO have to make a decision.

[00:48:29] Speaker 07:
It will be a knowing and voluntary decision.

[00:48:33] Speaker 05:
In addition to the claimings, I understand that there's a tight relationship between the purpose of granting jurisdiction and the purpose behind the benefits allegedly conferred on the PLO and PA.

[00:48:50] Speaker 07:
Well, Your Honor, for decades there's been generous foreign aid given to the PA and the PLO by Congress.

[00:48:57] Speaker 07:
But with every grant of foreign aid to the PA or the PLO by Congress, there have also been conditions that require the PA and the PLO to renounce terrorism and to take active steps to combat terrorism within their jurisdiction, and repeated certifications of ongoing efforts.

[00:49:14] Speaker 08:
I'd like you to discuss the waiver of their personal jurisdiction, or forfeiture would be correct, the correct term, by waiting until after Daimler to raise it again.

[00:49:32] Speaker 08:
I'm sorry, Your Honor.

[00:49:34] Speaker 08:
By not raising the issue again after Goodyear, but waiting until Daimler?

[00:49:42] Speaker 07:
The central issue there is that the district court found that there was no prejudice to plaintiffs by defendants' decision to raise the Daimler decision a year after fact discovery, when the Goodyear decision had come out prior to the end of fact discovery.

[00:49:57] Speaker 07:
This implies a great prejudice on planners because fact discovery had ended.

[00:50:01] Speaker 07:
And then because Daimler was now the rule in the case, planners were required to come up with a specific personal jurisdiction test.

[00:50:08] Speaker 08:
That also cost you a lot of money.

[00:50:09] Speaker 08:
So imagine this statute, second statute, either hadn't been passed, the HCA, either hadn't been passed, or we rule that it doesn't help you for one reason or another.

[00:50:21] Speaker 08:
You would have not, and imagine,

[00:50:26] Speaker 08:
You also lose under Daimler.

[00:50:28] Speaker 08:
I assume if you knew all of that, if you knew that you were going to lose under Daimler, the case would have been over.

[00:50:34] Speaker 08:
You would not have spent another three years spending money on the discovery, which

[00:50:39] Speaker 08:
might not have helped you at all, certainly not on the merits discovery.

[00:50:43] Speaker 08:
Isn't that a prejudice to you, all the money that was spent and the time spent in the three years?

[00:50:48] Speaker 08:
Your Honor, we engaged in discovery for five years.

[00:50:50] Speaker 08:
No, but I'm talking about the time between Goodyear.

[00:50:53] Speaker 08:
What's the time between Goodyear and the time that they... June 2011 and January 2014.

[00:51:01] Speaker 08:
Okay, so for three years, you spent money, consumed resources, including your time,

[00:51:08] Speaker 08:
that you might not have spent if you had known that the case was over because of Daimler.

[00:51:15] Speaker 08:
Isn't that prejudice?

[00:51:16] Speaker 08:
Yes, Your Honor.

[00:51:20] Speaker 08:
What about the argument that they make that the at-home defense wasn't clear after Goodyear?

[00:51:30] Speaker 07:
Well, Your Honor, if it wasn't clear

[00:51:34] Speaker 07:
They would not have raised it in two separate filings, the same counsel for the same party.

[00:51:39] Speaker 07:
Admittedly, in the first filing, they did not go into great detail about the at-home defense.

[00:51:42] Speaker 07:
It was a couple of sentences and a Supreme Court brief, but that was two months after the Goodyear decision came out.

[00:51:51] Speaker 07:
Later, in another related case called Livnat v. Palestinian Authority in the Eastern District of Virginia,

[00:51:57] Speaker 07:
They spent five pages arguing why the Goodyear defense effectively destroyed the personal jurisdiction case of the plaintiffs there.

[00:52:04] Speaker 07:
So the PA and the PLO clearly understood what the import of Goodyear was, and they could have raised it earlier, but they did not.

[00:52:12] Speaker 07:
They waited until a year after fact discovery had closed, and plaintiffs had just one critically important order to compel the PA and the PLO to produce documents, internal documents, that

[00:52:25] Speaker 07:
identified payments made by the PA and the PLO to so-called martyrs who are persons killed by Israeli security forces, but in this documentation they are identified by the PA and the PLO as al-Aqsa martyrs brigade members.

[00:52:41] Speaker 02:
Usually on the preservation issue, usually you have to

[00:52:46] Speaker 02:
preserve arguments, right, not citations, and just assume, I know you dispute this, but assume for purposes of argument that the general jurisdiction question what was properly preserved at the outset of the case.

[00:53:09] Speaker 02:
Why isn't this nothing more than just there's an issue preserved,

[00:53:16] Speaker 02:
then there's an intervening decision that makes the case more helpful for one side or the other, and they move for reconsideration.

[00:53:24] Speaker 02:
And it's no different from if Goodyear and Daimler had come down after district court proceedings are completely done, and they go up on appeal and cite Goodyear and Daimler, they're gonna win.

[00:53:38] Speaker 02:
They're not gonna lose on forfeiture grounds.

[00:53:40] Speaker 02:
They're gonna win on the preserved issue of general jurisdiction.

[00:53:45] Speaker 07:
Your honor, they would have had to raise the issue in motion for summary judgment or prior to trial.

[00:53:52] Speaker 07:
This issue would come up again.

[00:53:53] Speaker 07:
And there are decisions that find that technical compliance with rule 12 H one does not.

[00:53:58] Speaker 07:
relieve a party from its duty to raise the defense later.

[00:54:03] Speaker 07:
When the party engages in a lot of pretrial activity and then trial activity and does not raise a personal jurisdiction defense, especially when the law has changed and there's a new rule of law, this is sandbagging and it costs the plaintiffs a great deal of prejudice.

[00:54:22] Speaker 02:
But as we say... And the prejudice you're relying on, so your answer to

[00:54:28] Speaker 02:
Chief Judge Garland suggests that the prejudice is you spent all this time and effort that you might not have.

[00:54:42] Speaker 02:
That brings a little hollow where to this day you're vigorously pressing

[00:54:48] Speaker 07:
a specific jurisdiction argument.

[00:55:06] Speaker 07:
Regarding the Anti-Terrorism Clarification Act, I would just end on the question that the PA and the PLO have raised about fair warning.

[00:55:17] Speaker 07:
They argue that because the statute isn't being imposed now, they had no way of structuring their behavior properly in 2002.

[00:55:25] Speaker 07:
However, in 2002, they knew they could be sued for the conduct that they were sued for, and that's never been in question.

[00:55:31] Speaker 07:
And at that, I will sit down for rebuttal.

[00:55:41] Speaker 06:
Morning, may it please the Court.

[00:55:43] Speaker 06:
To answer Chief Judge Garland's question, Judge Katz's question, and Mr. McAllister's answer about the five years of discovery, not only is that not prejudice to the plaintiffs, it is precisely what they wanted.

[00:55:56] Speaker 06:
It is what they were begging Judge Friedman to do repeatedly, let us have more discovery.

[00:56:01] Speaker 06:
This from plaintiffs, whose primary argument in opposition to reconsideration was,

[00:56:07] Speaker 06:
We need more discovery because specific jurisdiction is intertwined with the merits.

[00:56:14] Speaker 06:
The five years of discovery does several things.

[00:56:16] Speaker 06:
Not only is it not prejudice, the money, Your Honor, that they spent on discovery is money they would have spent taking intertwined merits discovery, getting ready for trial.

[00:56:26] Speaker 06:
And it was a huge benefit for the parties and for the court.

[00:56:30] Speaker 06:
It is that five-year record of discovery

[00:56:33] Speaker 02:
Why isn't there prejudice for the second reason we were exploring, which is they're doing the discovery, they would have done it anyway, but they're operating on the assumption that personal jurisdiction is off the table, right?

[00:56:50] Speaker 02:
The only live issue is a merits question.

[00:56:54] Speaker 02:
for purposes of the merits, all they have to do is connect the attack to an attempt to influence Israeli policy.

[00:57:07] Speaker 02:
And that's pretty easy to do.

[00:57:08] Speaker 02:
That's a lot easier to do than what they would have to do for specific jurisdiction purposes, which is link the attack to an attempt to influence the United States.

[00:57:21] Speaker 06:
Well, Your Honor, first of all, I question the premise of the interpretation of the ATA, but let me start with this precisely why the Abuse of Discretion Review Standard applies.

[00:57:32] Speaker 06:
Judge Friedman is much closer to that question, with all respect, to what discovery the parties were taking.

[00:57:39] Speaker 06:
And when the general jurisdiction standard was clarified by Daimler, Judge Friedman didn't steamroll the plaintiffs.

[00:57:46] Speaker 06:
He said, I'm going to give you every opportunity.

[00:57:48] Speaker 06:
Tell me.

[00:57:48] Speaker 02:
They had a lot of discovery.

[00:57:51] Speaker 02:
And they went to great lengths.

[00:57:52] Speaker 02:
They deposed the trigger man in a prison in Israel.

[00:57:56] Speaker 02:
And he said something like, well, you know, I was sent to attack Israelis or whatever.

[00:58:02] Speaker 02:
That cinches up their merits case.

[00:58:07] Speaker 02:
It's very helpful for their merits case, so why would they then need to go down this rabbit hole of

[00:58:15] Speaker 02:
trying to link the attack to attempts to influence the United States?

[00:58:20] Speaker 06:
Well, if I can answer the second question first, I think you put your finger on it precisely when you say it's Sinch's and Amarit's case.

[00:58:26] Speaker 06:
Well, the lesson that we have from Livna in this circuit and from Sokolo in the Second Circuit is that the liability standard under the ATA and the jurisdictional standard under the Due Process Clause are not co-determinants.

[00:58:39] Speaker 06:
To have jurisdiction as opposed to evidence showing an effort to influence Israeli policy

[00:58:45] Speaker 06:
That may be enough for the merits case, but it's not enough for jurisdiction.

[00:58:49] Speaker 06:
What Livnott tells us is there must be a link.

[00:58:52] Speaker 02:
Which may be the source of the prejudice here.

[00:58:54] Speaker 06:
Well, but at first, it's not linked to the United States.

[00:58:57] Speaker 06:
So that leaves it.

[00:58:57] Speaker 08:
Hold on.

[00:58:58] Speaker 08:
So they, at that time, thought they had general jurisdiction and didn't need specific jurisdiction.

[00:59:05] Speaker 08:
Had they known that they needed specific jurisdiction, then they might have sought evidence to show that these two figure men were lying.

[00:59:15] Speaker 08:
It's not particularly surprising

[00:59:17] Speaker 08:
that the people who killed people would say they were aiming at soldiers rather than civilians because the latter is a war crime.

[00:59:25] Speaker 08:
So their credibility on this question only matters, it doesn't matter with respect to the merits when they thought they had general jurisdiction, it only matters

[00:59:36] Speaker 08:
because they didn't know that they needed specific jurisdiction.

[00:59:40] Speaker 06:
So there's several points in there, Your Honor, if I might respond, which is this is precisely the set of inquiries that Judge Friedman undertook.

[00:59:48] Speaker 06:
He said, what is there out there?

[00:59:50] Speaker 06:
What else in the ocean haven't you fully boiled on discovery?

[00:59:53] Speaker 06:
It is more than just the attackers.

[00:59:55] Speaker 06:
It's not a question merely of credibility.

[00:59:57] Speaker 06:
There were seven depositions of the Palestinian Authority and the PLO, including three under Rule 30B6.

[01:00:05] Speaker 06:
This is not an issue as to whether the attackers can be held liable under the ATA.

[01:00:09] Speaker 06:
It's a question of whether the PA and the PLO can.

[01:00:12] Speaker 06:
What Judge Friedman did, and he did it meticulously, was after the general jurisdiction standard changed and general jurisdiction no longer became possible, he said what a district judge should do, which is tell me what you have,

[01:00:26] Speaker 06:
Tell me what you need.

[01:00:27] Speaker 06:
I'm going to give you every opportunity to crystallize your theory.

[01:00:30] Speaker 06:
I'm going to give you every opportunity to tell me what additional discovery you need.

[01:00:35] Speaker 06:
It was only when he went through that process that he held that, you know what?

[01:00:40] Speaker 06:
Not only does the evidence uniformly show no link to the United States.

[01:00:45] Speaker 06:
He was applying Walden then, but he was anticipating correctly what this court ruled in Lifton.

[01:00:51] Speaker 06:
You haven't shown a link to the United States, and in fact, you have proven the opposite of jurisdiction.

[01:00:57] Speaker 06:
You have proven consistently from every witness that there was no link to the United States.

[01:01:03] Speaker 06:
And that's the jurisdictional question as distinct Judge Katz's from the merits question.

[01:01:08] Speaker 06:
And that's why

[01:01:10] Speaker 06:
He acted well within his discretion in saying, you know what, after five years of discovery, enough is enough.

[01:01:15] Speaker 06:
I've given you every opportunity.

[01:01:17] Speaker 06:
And when you tell me you're prejudiced, that rings hollow in the sense that what else have you been asking me for for five years but more discovery?

[01:01:25] Speaker 06:
And he noted that in his decision when he said,

[01:01:27] Speaker 06:
The only thing that happened during the intervening years between Goodyear and Daimler was that they got... Yes, absolutely, Chief Judge Garland.

[01:01:36] Speaker 06:
It cost money, but so does getting ready for trial under any circumstances cost money.

[01:01:40] Speaker 06:
That's not prejudice.

[01:01:42] Speaker 06:
That's just part of the litigation process.

[01:01:43] Speaker 08:
What about the other part of this argument that...

[01:01:46] Speaker 08:
wasn't clear that Goodyear was the law until Dynway.

[01:01:50] Speaker 06:
Well, I think Judge Friedman did an excellent job of summarizing law.

[01:01:53] Speaker 06:
He said, first, Wright Miller got it wrong.

[01:01:56] Speaker 06:
Wright Miller says Goodyear didn't change the rules.

[01:01:58] Speaker 06:
It's just an application in stream of commerce, has really no general application.

[01:02:04] Speaker 06:
And then Judge Friedman pointed to other district court judges in this circuit.

[01:02:10] Speaker 08:
So here, the problem is, all very nice, but the Supreme Court thought it was absolutely plain.

[01:02:15] Speaker 08:
In Daimler, the court says we made it plain in Goodyear.

[01:02:19] Speaker 08:
The Supreme Court says Goodyear made it clear.

[01:02:24] Speaker 08:
And in Daimler, the court says

[01:02:28] Speaker 08:
Instructed by Goodyear, we look at the question of whether they were essentially at home.

[01:02:32] Speaker 08:
So at least from the Supreme Court's point of view, it was crystal clear.

[01:02:36] Speaker 08:
And with due respect, they are the ones we have to respect and not district courts who didn't see what they had said in Goodyear.

[01:02:44] Speaker 06:
No question, Your Honor.

[01:02:45] Speaker 06:
As a matter of law, that's right.

[01:02:47] Speaker 06:
And I think with 2020 hindsight, we all see it, having read Daimler, what Goodyear was meant to be.

[01:02:52] Speaker 06:
The question though is not whether or not Goodyear changed the standard with all due respect.

[01:02:58] Speaker 06:
It's whether or not these defendants should have apprehended what other district judges and what Wright and Miller didn't apprehend that now was the time to make that motion.

[01:03:07] Speaker 08:
Didn't we already hold that in Gilmore?

[01:03:09] Speaker 06:
No, Your Honor, Gilmour dealt with a very different circumstance.

[01:03:12] Speaker 06:
I'm glad you asked me that question.

[01:03:13] Speaker 06:
Gilmour, we made the argument that even though no 12b2 defense was ever raised at the outset, we didn't know we should have raised one until after Daimler came out.

[01:03:25] Speaker 06:
This is very different.

[01:03:26] Speaker 06:
From the get-go, a 12b2 defense was waived.

[01:03:29] Speaker 08:
And to Judge Katz's point, once that has been raised... Well, let me ask about this language in Gilmour.

[01:03:36] Speaker 08:
Appellees also argue

[01:03:38] Speaker 08:
that their personal jurisdiction defense was not available to them until the Supreme Court's decision in Daimler.

[01:03:51] Speaker 08:
At the time of Appellee's pre-answer motion in 2002, the legal basis for their personal jurisdiction defense did exist.

[01:03:59] Speaker 06:
It did.

[01:04:00] Speaker 06:
And that is the distinction between Gilmore and this case.

[01:04:03] Speaker 08:
Why is that?

[01:04:03] Speaker 08:
Because they knew, they're saying that in 2002, their personal jurisdiction defense did exist.

[01:04:13] Speaker 08:
And their personal jurisdiction defense was that you have to show at home.

[01:04:17] Speaker 06:
The latter part is not correct, Your Honor.

[01:04:20] Speaker 06:
The distinction is, in Gilmore, no answer and no pre-answer motion raised a 12b2 defense.

[01:04:25] Speaker 06:
That is precisely the opposite of the scenario here, where 12b2 defenses were repeatedly raised and rejected.

[01:04:32] Speaker 08:
I understand where the waiver occurred, but I'm on the question of whether the at-home defense was available.

[01:04:39] Speaker 08:
And looking at what the district court said, the district court says, in Gilmore,

[01:04:45] Speaker 08:
Defendants based most of their argument on the allegation that until Daimler was decided, the specific argument asserted in their motion that their contacts with the District of Columbia do not render them at home was simply not available.

[01:05:00] Speaker 08:
The court says it was available.

[01:05:02] Speaker 08:
Our court said it was available.

[01:05:04] Speaker 06:
In the context of rebutting the argument made by my clients in that case, that they had no need to assert a 12b2 defense from the outset.

[01:05:13] Speaker 06:
And what this court said was that no, there was always a 12b2 defense.

[01:05:19] Speaker 06:
Perhaps you wouldn't have won, but you had no excuse for not asserting a 12b2 defense.

[01:05:23] Speaker 06:
That is not only dramatically different.

[01:05:25] Speaker 08:
I know it's a different argument.

[01:05:27] Speaker 08:
with respect to what constitutes waiver.

[01:05:31] Speaker 08:
It's not a different argument as to what argument was available.

[01:05:36] Speaker 08:
The fact that Judge Friedman thought it wasn't available is rebutted by our holding in Gilmore that it was available.

[01:05:43] Speaker 08:
I get your point that it's different if you don't raise a pre-answer motion or you don't put it in your answer under 12B.

[01:05:52] Speaker 08:
But that's on the question of whether

[01:05:57] Speaker 08:
it was available seems like we've already decided that.

[01:05:59] Speaker 06:
No, I don't think so, Your Honor, because I don't think that's what Gilmore holds with all respect.

[01:06:03] Speaker 06:
What it says is it's dealing with the portion of the argument that there was no reason to assert a defense because it would have been futile.

[01:06:13] Speaker 06:
What the court held in Gilmore is it wouldn't have been futile.

[01:06:15] Speaker 06:
We recognize 12b2 defenses.

[01:06:17] Speaker 06:
It never held that that was the at-home standard in this circuit.

[01:06:23] Speaker 06:
Indeed, you would not find a decision out of this court or out of the district court in this circuit applying an at-home standard to a general jurisdiction argument before Daimler came out.

[01:06:35] Speaker 08:
Neither of that is relevant.

[01:06:41] Speaker 08:
There was no Supreme Court or in-circuit precedent rendering the personal jurisdiction defense for all practical purposes impossible.

[01:06:49] Speaker 06:
Your Honor, we're saying the same thing.

[01:06:51] Speaker 08:
In other words, the defense was available at the time.

[01:06:54] Speaker 06:
And all that availability goes to, and I think I'm talking past, Your Honor, so if you give me a moment, I'll try to be clear.

[01:07:01] Speaker 06:
The availability issue, which is what Gilmore addressed, was is there an excuse for not asserting 12b2.

[01:07:08] Speaker 06:
Gilmore did not decide that the standard at the time

[01:07:12] Speaker 06:
was at home.

[01:07:13] Speaker 06:
That is the distinction between Gilmore and this case, and indeed Judge Friedman, in his opinion on reconsideration, said Gilmore presents a totally different scenario.

[01:07:24] Speaker 06:
He's right, because the only issue that was dealt with in Gilmore, that portion that you're looking at, Your Honor, is why is that in Waldman-Socco, our second circuit case,

[01:07:35] Speaker 06:
why the court said, you know, it's okay that you belatedly raised a general jurisdiction defense, not an at-home defense, a general jurisdiction defense, because in the Second Circuit, if you had an office here, you were considered to be subject to general jurisdiction.

[01:07:50] Speaker 06:
All that Gilmore says is that's never been the standard in the District of Columbia circuit.

[01:07:54] Speaker 06:
It does not hold that the at-home standard was the standard pre-Daimler, and indeed it was not.

[01:08:01] Speaker 06:
Judge Friedman cited to a district court decision in a case called Alcanane,

[01:08:05] Speaker 06:
was an example of where another district court in this circuit cited... I don't understand why it matters what one district court or another district court did.

[01:08:14] Speaker 08:
That's not what determines whether at home is a defense.

[01:08:17] Speaker 08:
What determines whether at home is a defense is what the Supreme Court said in Goodyear.

[01:08:22] Speaker 06:
And the only way in which that arises in this case is whether or not that misapprehension of what Goodyear meant, which the Supreme Court reminded everybody about three years later, meant that there is no good excuse for having moved for reconsideration three years after Goodyear.

[01:08:41] Speaker 08:
There has to be an intervening change in law.

[01:08:43] Speaker 08:
That was the ground on which he resolved the matter, right?

[01:08:47] Speaker 08:
And he said there was an intervening change of law.

[01:08:50] Speaker 08:
The Supreme Court said there wasn't.

[01:08:52] Speaker 06:
I think the Supreme Court is perhaps went to the trouble in Daimler to explain what Goodyear meant because of the confusion.

[01:09:02] Speaker 06:
But this is not a strict liability issue for my clients in terms of waiver.

[01:09:07] Speaker 06:
The question is whether they acted reasonably and whether Judge Friedman in turn abused his discretion in saying that there was a reason for a three-year delay.

[01:09:16] Speaker 08:
in raising... Is it not a question of law if you thought that there hadn't been an intervening change in law when there actually had been?

[01:09:23] Speaker 06:
Indeed, Your Honor, reconsideration is a matter of... part of the reason why the abuse of discretion standard governs... But isn't it an abuse of discretion to get the law wrong?

[01:09:31] Speaker 08:
That's what the court said in Coons.

[01:09:34] Speaker 06:
Yes, but that was not what the district court decided.

[01:09:37] Speaker 06:
What the district court decided was that given all of the misapprehension out there in the atmosphere among district courts, among commentators,

[01:09:44] Speaker 06:
among these defendants about what Goodyear meant, that they had a reasonable excuse for not moving for reconsideration until Daimler told everybody, you know, you've got this wrong.

[01:09:55] Speaker 06:
We've been trying to be clear about this that the at-home standard applies.

[01:09:59] Speaker 06:
That is the sole context

[01:10:01] Speaker 06:
in which that issue arises in this case.

[01:10:04] Speaker 06:
And Gilmore, respectively, never held that the standard is the at-home standard prior to the time of Daimler.

[01:10:11] Speaker 06:
So given that the one question where this matters is, did Judge Friedman abuse his discretion, saying it was OK that you waited three years?

[01:10:20] Speaker 06:
It doesn't matter whether we read the law wrong.

[01:10:23] Speaker 06:
Indeed, it's helpful to us that we read the law wrong, because that explains the reasonableness of our behavior

[01:10:29] Speaker 06:
until not moving after 9-1.

[01:10:32] Speaker 06:
And that is precisely why the Abuse of Discretion standard applies here also, because the district judge is closer to the record, closer to the proceedings, and that's what the courts rely upon district judges to do.

[01:10:50] Speaker 06:
Having upheld that there was not a forfeiture, let me do briefly with the waiver question.

[01:10:57] Speaker 06:
The waiver question

[01:10:59] Speaker 06:
in turn has been waived and this court was never asserted below despite litigation in 2005, 2006, 2007 on motions to dismiss

[01:11:08] Speaker 06:
The plaintiffs consistently acquiesced in the merits adjudication of the Rule 12b2 issue.

[01:11:14] Speaker 06:
They never argued there was a waiver because it wasn't sufficiently preserved.

[01:11:17] Speaker 06:
They can't make that argument for the first time in this court.

[01:11:20] Speaker 06:
And indeed, embedded in Judge Friedman's decision on forfeiture is the recognition that that defense was correctly preserved.

[01:11:29] Speaker 06:
In terms of jurisdictional discovery, I've already explained why that five years of discovery was beneficial.

[01:11:35] Speaker 06:
And indeed, it facilitated and indeed compelled Judge Friedman's decision that there is no specific jurisdiction.

[01:11:42] Speaker 06:
Again, Judge Katz, it's because of the distinction between the liability standard, which might be satisfied by proof of connection to Israel, versus the jurisdictional standard which requires it.

[01:11:52] Speaker 06:
And candidly, Mr. Begallister spent the first 10 minutes of his argument talking about everything but what happened in the district court, so I think that should convey to this court how much confidence he has in his ability to overturn what Judge Friedman did.

[01:12:06] Speaker 06:
He should have no confidence in that because Judge Friedman then meticulously applied

[01:12:11] Speaker 06:
The results of discovery, to conclude, there was no specific jurisdiction precisely for the reasons that this court decided in Livnot.

[01:12:18] Speaker 06:
Livnot and the theory in this case are look-alikes.

[01:12:21] Speaker 06:
For all the reasons that the court said in Livnot there was no specific jurisdiction because of no link to the United States, there was no link to the United States here.

[01:12:30] Speaker 06:
That is what Judge Friedman considered meticulously, and that's why he had such extensive briefing.

[01:12:36] Speaker 02:
I agree with you on all of that, but I'm just not sure they had a fair chance to try to develop that part of the case, just given the way the general jurisdiction issue had played out.

[01:12:51] Speaker 06:
And that's a reasonable question to ask, Judge Katz.

[01:12:53] Speaker 06:
It's a question Judge Friedman asked, but it requires more than the plaintiff saying, you know what, I don't think I've been treated fairly.

[01:13:00] Speaker 06:
I want more.

[01:13:01] Speaker 06:
What the district judge is supposed to do and what the district judge did here is say, okay, what do you want?

[01:13:06] Speaker 06:
And they could never articulate anything other than, we want information about their lobbying in the United States and their fundraising in the United States.

[01:13:14] Speaker 06:
Jurisdictional discovery doesn't work by saying, I want more.

[01:13:18] Speaker 06:
It requires concrete articulation of what you want.

[01:13:21] Speaker 06:
What they asked for is a lookalike copy of what the plaintiffs asked for in Livnaught.

[01:13:27] Speaker 06:
And in Livnaught, this court said, it doesn't matter that zero discovery has been taken in that case, that's not sufficient to alter the jurisdictional outcome.

[01:13:36] Speaker 06:
So Judge Friedman, a for sure, made the right decision when he looked at exactly the same jurisdictional discovery request.

[01:13:43] Speaker 06:
either the defendant's job or the district court's job to cater to the plaintiffs and say, you know what, take whatever you want.

[01:13:48] Speaker 06:
He has to ask the question, as he did, to say, okay, what else and why does it matter?

[01:13:53] Speaker 06:
They couldn't move that.

[01:13:55] Speaker 06:
None of this, despite the long opening for Mr. McAllister, can be undone by act.

[01:13:59] Speaker 06:
You only have a few minutes.

[01:14:00] Speaker 06:
You want to talk about the statute?

[01:14:02] Speaker 06:
Yes, I was just turning to that, Your Honor, I will.

[01:14:04] Speaker 06:
First of all, to your question, Judge Katz, is the plaintiffs read the statute incorrectly in terms of the mission.

[01:14:11] Speaker 06:
What the statute says is anybody benefiting from a presidential waiver who then maintains a mission, that's irrelevant because there is no extant presidential waiver for the PA and the PLO.

[01:14:23] Speaker 06:
It hasn't been one for a couple of years.

[01:14:25] Speaker 06:
The PLO mission to the United States, which required a waiver, has been shuttered.

[01:14:30] Speaker 02:
The Second Circuit... It's a waiver of this 22 USC 5202, right?

[01:14:37] Speaker 02:
Correct.

[01:14:37] Speaker 02:
Which makes it unlawful for the PLO

[01:14:41] Speaker 02:
to establish or maintain any office headquarters, premises, et cetera.

[01:14:47] Speaker 02:
I assume there has to be a waiver in place, or else how could they have the New York

[01:14:51] Speaker 02:
mission or office?

[01:14:52] Speaker 06:
Because – I'm sorry to cut you off, Judge Cassidy.

[01:14:54] Speaker 02:
No, I'm sorry.

[01:14:55] Speaker 06:
Go ahead.

[01:14:55] Speaker 06:
The Second Circuit held in the Klinghoffer case and the Southern District of New York held in the U.S.

[01:15:00] Speaker 06:
versus PLO case that a presidential waiver is not required for the UN mission because of superseding anteceding obligations the United States undertook in the UN headquarters agreement.

[01:15:13] Speaker 06:
I see.

[01:15:13] Speaker 06:
So the waiver only ever applied to the U.S.

[01:15:15] Speaker 06:
mission, which has now been shuttered,

[01:15:17] Speaker 06:
The president must expressly issue a waiver.

[01:15:20] Speaker 06:
No such waiver exists, says the PA of the PLO.

[01:15:23] Speaker 06:
As to aid, as Your Honor said, Judge Katzis,

[01:15:27] Speaker 06:
The PAN and PLO have not made any decisions.

[01:15:30] Speaker 02:
There's nothing you can tell us.

[01:15:32] Speaker 06:
Yeah, I can tell you that they're inclined not to take the aid.

[01:15:35] Speaker 06:
They are a government.

[01:15:37] Speaker 06:
Their deliberations continue.

[01:15:38] Speaker 06:
I don't think a remand is required.

[01:15:40] Speaker 06:
It's either a yes or no answer on that, and certainly in the first instance, to the extent the court wants to.

[01:15:46] Speaker 08:
You seem to have a dispute, though, about what constitutes aid, right?

[01:15:50] Speaker 08:
In your brief, you say,

[01:15:52] Speaker 08:
Certain money is not provided directly, it's provided indirectly and to somebody else.

[01:15:58] Speaker 08:
Are those not fact questions?

[01:16:00] Speaker 06:
I don't think so, Your Honor, because if the – it's a two-part question.

[01:16:03] Speaker 06:
Does the United States give – and that raises the issues that Your Honor asked – and does the recipient disclaim?

[01:16:09] Speaker 06:
All the PA and the PLO have to do is say, I disclaim all aid, however provided that meets the language of the statute.

[01:16:15] Speaker 06:
What we say is, even if they could get past those factual hurdles, which shouldn't trouble this court, there are legal reasons why AFCA can't alter the outcome here.

[01:16:24] Speaker 02:
First and foremost.

[01:16:25] Speaker 02:
So just on the mechanics, your position is the maintenance of the UN-related New York office can't be a triggering event under this statute, for reasons we've said.

[01:16:43] Speaker 02:
Yes, sir.

[01:16:45] Speaker 02:
relevant triggering event is whether or not your clients will continue to accept aid and that's, and that question is one you can't get answered.

[01:16:57] Speaker 06:
Well, they're inclined not to accept.

[01:16:58] Speaker 06:
As Your Honor pointed out, they have another five, six weeks to make that decision.

[01:17:03] Speaker 06:
I think that's something we can easily inform the Court about.

[01:17:06] Speaker 06:
Your Honor, I worry that with your question, I want to call the Court's attention to the fact that even though the Court allowed the plaintiffs to file a supplemental brief on ATCA,

[01:17:14] Speaker 06:
We worry that there wouldn't be time for us to respond to that.

[01:17:17] Speaker 06:
We have an extensive discussion of ATCA in our opposition to their motion for leave to file a supplemental brief.

[01:17:24] Speaker 06:
Our authority to pre-answering those questions, Judge Katz, is found there, as is our authority for our four other arguments as to why ATCA can't apply here.

[01:17:34] Speaker 06:
I recognize the amount of time that I would just ask to be able to… Why don't you make what's your strongest?

[01:17:38] Speaker 08:
We've read the pleadings, but do you want to make the strongest argument?

[01:17:41] Speaker 06:
I think, first and foremost, there's seven different reasons why it's a matter of statutory construction.

[01:17:46] Speaker 06:
a statute that says in this relevant portion, this statute is effective upon the date of enactment, the Supreme Court in Landgraf said a statute that says it is effective upon enactment doesn't mean any retroactive application.

[01:18:06] Speaker 06:
There's no unambiguous directives.

[01:18:08] Speaker 08:
Does that presume the application of the retroactivity presumption?

[01:18:13] Speaker 06:
No, that's just the statutory interpretation part of Landgraf.

[01:18:16] Speaker 06:
Landgraf separately says, which would be my first point, there is no unambiguous directive requiring retroactive application.

[01:18:24] Speaker 06:
I'm starting here because of the constitutional avoidance doctrine, Your Honor.

[01:18:27] Speaker 06:
I don't actually believe our constitutional arguments are weaker than the statutory construction was.

[01:18:32] Speaker 06:
But there's no unambiguous directive for retroactive application.

[01:18:38] Speaker 06:
Number two, even if there were any ambiguity, which I'm sure Mr. McAllister will say, you know, there was this kind of intent, and it could be read this way, it's quite clear that ambiguity doesn't help them.

[01:18:48] Speaker 06:
In the Lindt case, what the Supreme Court said was it has to be perfectly clear that there's retroactive application.

[01:18:57] Speaker 06:
Ambiguity works against them, not in their favor.

[01:18:59] Speaker 06:
There's no rule of lenity here.

[01:19:01] Speaker 06:
that will allow ambiguity.

[01:19:02] Speaker 08:
But if we regard this as a jurisdictional and therefore procedural statute, as to which there is no constitutional question, then we don't have to do any avoidance.

[01:19:10] Speaker 08:
You only do avoidance if you think there's something to be avoided.

[01:19:13] Speaker 06:
Well, with respect, that would require contradicting the panel's decision in a lifetime, which made it crystal clear that there is a substantive, not a procedural, right under due process to be free of jurisdiction

[01:19:25] Speaker 06:
in a forum where the defendant is not at home.

[01:19:28] Speaker 06:
That is not a procedural rule.

[01:19:29] Speaker 06:
That's not a subject matter jurisdiction rule.

[01:19:32] Speaker 06:
That is precisely what ATCA tries to undo.

[01:19:35] Speaker 06:
But that's a substantive right because if it's not a substantive right, then live not doesn't mean what it says, which is when this court said in live not, Congress can't wish away a constitutional provision, can't wish away the substantive right under the due process clause to be free from jurisdiction in the United States

[01:19:54] Speaker 06:
where it's not at home.

[01:19:55] Speaker 06:
So that's another reason under our seven reasons of statutory construction.

[01:19:59] Speaker 08:
But LIVNAT didn't address the question of waver, of knowingly and truly waiving, did it?

[01:20:09] Speaker 08:
LIVNAT did not address that.

[01:20:10] Speaker 08:
The only jurisdictional hook there was general jurisdiction.

[01:20:13] Speaker 08:
That wouldn't be the jurisdictional hook here.

[01:20:15] Speaker 08:
The question here is whether Congress, through this act, can provide jurisdiction

[01:20:23] Speaker 08:
on contingent on acceptance of money.

[01:20:27] Speaker 06:
I'm thrilled you're going to ask me that question because that frames the unconstitutional conditions doctrine and why it applies here.

[01:20:32] Speaker 06:
Livnud says it's a substantive, enumerated constitutional right to be free under the due process clause from jurisdiction.

[01:20:40] Speaker 06:
What Congress is saying, if you want aid, you've got to surrender that constitutional right.

[01:20:45] Speaker 06:
That is precisely what the unconstitutional conditions doctrine cases say Congress can't do.

[01:20:50] Speaker 06:
And I respectfully refer the court to Justice Alito's opinion in the Coons case, which says, you know what?

[01:20:56] Speaker 06:
Every time we go through unconstitutional conditions, somebody says, it's OK, because we don't have to give you this benefit.

[01:21:02] Speaker 06:
It's an act of legislative grace.

[01:21:03] Speaker 06:
It's a gratuity.

[01:21:04] Speaker 02:
And with Justice Alito, Congress surely has more latitude when they're addressing funding conditions.

[01:21:13] Speaker 02:
than when they're imposing direct requirements.

[01:21:17] Speaker 06:
Only when what they seek to do is either withhold funding or provide it.

[01:21:21] Speaker 06:
Your Honor is absolutely right.

[01:21:22] Speaker 02:
Congress doesn't have to give a penny.

[01:21:23] Speaker 02:
What's wrong with Congress saying that when we spend our foreign assistance money, to which no one has an entitlement, we want only people who

[01:21:38] Speaker 06:
have renounced terrorism and are making amends for any past terrorist acts.

[01:21:57] Speaker 06:
Every one of our unconstitutional conditions cases deals with gratuitous government benefits.

[01:22:03] Speaker 06:
But just because the government doesn't have to give it to you doesn't mean that it can make you surrender an enumerated constitution.

[01:22:11] Speaker 02:
No, but it's a sufficient answer to an unconstitutional conditions objection to say that the condition advances the purpose of the spending program.

[01:22:20] Speaker 06:
Respectfully, I disagree, because the cases that support that analysis, Your Honor, which are rational relationship cases,

[01:22:26] Speaker 06:
all deal with non-enumerated rights under the Constitution.

[01:22:30] Speaker 06:
The unconstitutional conditions doctrine says not when you get to enumerated rights.

[01:22:34] Speaker 06:
This is what Coons says.

[01:22:36] Speaker 06:
When it comes to enumerated rights under the Constitution, it doesn't matter that the government has a legitimate rational relationship to this goal.

[01:22:45] Speaker 06:
They simply can't ask for it.

[01:22:46] Speaker 06:
It's a bargain on which the government cannot insist.

[01:22:49] Speaker 06:
And that's the distinction between those cases.

[01:22:54] Speaker 08:
Any questions?

[01:23:01] Speaker 08:
Thank you.

[01:23:09] Speaker 07:
Thank you, Your Honors.

[01:23:10] Speaker 07:
I'd like to address a few points made by opposing counsel.

[01:23:14] Speaker 07:
One point was Judge Kansas was asking a question about prejudice and the, and counsel stated, although I think Judge Kansas understood where the prejudice arose from, but opposing counsel stated again that

[01:23:26] Speaker 07:
We had five years of discovery and that was our chance.

[01:23:30] Speaker 07:
The point is that Judge Freeman made his request about the specific jurisdiction test and the Davila case was opposed after the five years of discovery.

[01:23:39] Speaker 07:
We didn't have any discovery on the connections between the terror campaign in and near Israel and the influence campaign which was occurring in the United States.

[01:23:49] Speaker 07:
Secondly, regarding the... But he did.

[01:23:52] Speaker 02:
He did at some point ask you, what are the subjects on which you want further discovery?

[01:24:02] Speaker 02:
Yes, you're right.

[01:24:03] Speaker 02:
And you did not identify the missing link under LIVNOT, which is the connection between the particular attack

[01:24:15] Speaker 02:
and attempts to influence United States policy?

[01:24:19] Speaker 07:
Your Honor, in our briefs we made a different jurisdictional discovery request in the light of Lib-Mat.

[01:24:25] Speaker 07:
In our jurisdictional discovery request in our briefs we addressed two points.

[01:24:29] Speaker 07:
One is, was the PA through the AAMB deliberately targeting Americans and killing Americans, launching attacks against Americans?

[01:24:37] Speaker 07:
And two was, what are the external communications by the PA and the PLO regarding those attacks on the Americans?

[01:24:43] Speaker 07:
Because this goes to the heart of the conspiracy that is an issue in this case.

[01:24:48] Speaker 08:
So those are different than the two

[01:24:51] Speaker 07:
requests listed at a... Yes, Your Honor.

[01:24:56] Speaker 07:
They are different than the requests listed at the District Court.

[01:24:59] Speaker 08:
We made... So in what form, I'm sorry, what format were these additional requests made?

[01:25:05] Speaker 07:
We articulated a more expansive view of the jurisdictional discovery in the briefs.

[01:25:10] Speaker 07:
In the District Court?

[01:25:11] Speaker 07:
In the briefs in this Court.

[01:25:13] Speaker 07:
Yeah, but in the District Court.

[01:25:14] Speaker 07:
In the District Court, we requested jurisdictional discovery

[01:25:17] Speaker 07:
less sophisticated than the requests that we described at the appellate court level.

[01:25:23] Speaker 02:
And why should we not cut that off as a new argument first raised on appeal?

[01:25:30] Speaker 07:
Well, Your Honor, the court has discretion to review pure questions of law, and it's been well briefed by both sides.

[01:25:38] Speaker 07:
Thus, there's less prejudice.

[01:25:39] Speaker 02:
Pure questions of law, but this is about the nitty-gritty of what you're seeking

[01:25:45] Speaker 02:
the subjects on which you're seeking discovery and why.

[01:25:49] Speaker 07:
Yes, Your Honor, but in this case, the Livnat decision is an intervening event and we had to address the Livnat decision.

[01:25:55] Speaker 02:
And remind me, when did Livnat come down relative to the procedural history of this case?

[01:26:02] Speaker 07:
Livnat was decided by this court last year in 2017.

[01:26:06] Speaker 02:
After?

[01:26:07] Speaker 02:
Long after the close of the discovery.

[01:26:10] Speaker 02:
Long after.

[01:26:11] Speaker 08:
The judge's decision is in 2015?

[01:26:14] Speaker 08:
2015, yes, your honor.

[01:26:18] Speaker 07:
And I see that amount of time.

[01:26:23] Speaker 07:
Other questions?

[01:26:24] Speaker 08:
Thank you.

[01:26:25] Speaker 08:
We'll take them out on this mission.

[01:26:26] Speaker 08:
Thank you.