[00:00:04] Speaker 02:
at L, Henry Malouf at L, a former member of the Islamic Republic of Iran at L. Case of 18-760 at L, Kasserine Akhbar Sheikh as the spouse of Haram Tahmoud Sheikh, an employee of the United States government or an employee of the con capital of the United States government, at C, at L, of Palestine, versus Ministry of the Interior of the Republic of Sudan at L. Case of 18-7122.

[00:00:31] Speaker 02:
Backyard on her own behalf and as a personal representative of the estate SSR, Bathyard Ed L. Appellants v. Slum, Elected by Perron Ed L. Good morning, Your Honors.

[00:00:54] Speaker 06:
Good morning.

[00:00:54] Speaker 06:
And may it please the Court.

[00:00:56] Speaker 06:
My name is Stephen Schneebaum.

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I appear here this morning on behalf

[00:01:01] Speaker 06:
of the Malouf and Salazar appellants, both of them families of men who were murdered in terrorist attacks on the United States Embassy in Beirut.

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With me on the briefs is Cynthia McCann.

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Because of the way we've divided up the presentations, Your Honors, as the Court is aware, I will be addressing the structural limitations of arguments first.

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But of course, we reserve and preserve our position that these cases were, in fact, timely filed.

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And my colleagues, Mr. Elgarten and Mr. Schaeffer, will argue that issue subsequently.

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Your Honors, we start from the proposition that under the Foreign Sovereign Immunities Act, in particular, Section 1605A, A2,

[00:01:45] Speaker 06:
Cases shall be heard by the district court if certain prerequisites are met, and those prerequisites were in fact met by the cases before this court this morning.

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That statute provides no discretion to decline to hear cases that otherwise qualify.

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And of course, this court has held, in the case of Poen's against Sudan, that the provisions of the statute of limitations internal to the Foreign Sovereign Immunities Act are not jurisdictional.

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The notion that the statute of limitations is an affirmative defense

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is well enshrined, of course, in Rule 8 of the Federal Rules of Civil Procedure.

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And it is well enshrined in what has come to be called the principle of party presentation, which the Supreme Court described in Arizona v. California as basic to our system of adjudication.

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And in the United States v. Burke, Justice Scalia said, it distinguishes our adversary system of justice from the inquisitorial one.

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And that means, in the context of the Foreign Sovereign Immunities Act, that if a state defendant fails to raise an affirmative defense, that defense is waived.

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And that is what happened here.

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Well, it's forfeited.

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I don't know if it's waived.

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It is forfeited.

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It is forfeited.

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It is gone.

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It is not available to the defendant, at least, to raise.

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And the question, of course, before the court now is whether it is open to the court to raise that defense.

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Right.

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And so we know from the Supreme Court's decisions in Wood and Day that, at least in some situations, even though a statute of limitations defense is something that the defendant, and in that situation it was a state,

[00:03:31] Speaker 08:
can raise and can forfeit by not raising, a court still has authority to raise the statute of limitations defense on its own.

[00:03:41] Speaker 06:
Well, there have been, of course, cases on which the court appointed amicus relies, like day, for example, as Your Honor mentioned, in which the court has found a discretion to invoke or to raise statute of limitations defenses or other affirmative defenses, actually not statute of limitations ones, but other ones that have been passed on, not asserted by the defendants themselves.

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However, in all of the cases on which amicus relies,

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The issue was a specific one concerning the relations between state and federal judicial systems in the context of federal review of habeas corpus petitions brought by state defendants.

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We submit that there is no basis to create a similar general exception to the rule of affirmative defenses, the rule of party presentation in a situation like this for several reasons.

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First of all, because Section 8.2 of the Foreign Sovereign Immunities Act says that cases shall be heard.

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Second, because the statute of the Foreign Sovereign Immunities Act already provides

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a way for courts to determine whether evidence satisfactory to the court has been presented for review in a case against the foreign sovereign.

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That provision already protects against the possibility of frivolous litigation, of extended litigation, of litigation.

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How does that work?

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Because one of the things the Supreme Court in its cases on

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forfeiture or suicide consideration has directed us to consider is the rights of others, not the parties to the action, including institutional implications.

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So considering that here, one question that I have is,

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How do the district courts test the legitimacy of a claim of, let's say, a relative of a deceased individual?

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Does the United States have information about the identities of everyone who was working for it and killed?

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Is there a requirement that government documents show the relationship?

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How does one verify those?

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Well, my understanding is, Your Honor, that in cases that have proceeded to judgment in the court below, individual plaintiffs have come forward, generally before a special master, and have proved by evidence, competent evidence, that they were in fact the relatives that they claimed to be.

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that their decedent, in fact, died in the way or was injured in the way that they claimed that he or she was, and that they suffered the injuries that would justify an award of damages.

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And can you tell us any more about the nature of those determinations?

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Is it very lengthy and very subtle?

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Is it relatively clear cut?

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It could be lengthy and subtle in a case where there was some complication about the identity of the individual plaintiff.

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very large group of plaintiffs who received judgments in the cases reported as do di Iran in the district court, hundreds of people were awarded damages based on their demonstration that, as I said, they were in fact the relatives that they claimed they were.

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They were injured in the way that they claimed they had been, and that they suffered damages as a consequence, either economic or emotional damages as a consequence.

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So there is a way, there is a method for testing the seriousness, if you like, the credibility of cases brought under the Foreign and Sovereign Immunities Act.

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It does not require, nor does it even admit, nor does it invite the court, sua sponte, to raise the question of limitations.

[00:07:23] Speaker 08:
Why not?

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Why doesn't, because if you can look under, I think 1608E is the permission you're talking about.

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Yes.

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Under 1608E,

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It seems to me one potential reading of 16.08e is that the court has a responsibility to screen to make sure it's an action that has enough behind it that it's appropriate to enter a default judgment.

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And one consideration it could take into account in making that determination is whether there's enough honest national limitations.

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Well, the first part of Your Honor's proposition just now, of course, is unexceptionable.

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Yes, the court is tasked with the job of evaluating the quality of the evidence.

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But to impose a rule, as Judge Bates appears to have done in our case, to impose a rule that says,

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As long as this case was brought outside the limitation period, I will exercise my discretion to toss it out, is essentially to create not a discretionary function on the part of the court, but rather an open and shut, yes or no, up or down rule.

[00:08:23] Speaker 06:
And we submit that that is the functional equivalent

[00:08:26] Speaker 08:
concluding that it wouldn't have to be up or down because I guess I want to suggest a different distinction than the one you're drawing just to get your ratchet to it in one second but it wouldn't necessarily suggest up or down because you could read it to say

[00:08:39] Speaker 08:
1608A means that there's a screening function that all district courts have to undertake when they're met with this kind of action.

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So that even if the defendant doesn't show up, it's still not enough just to go ahead and enter a default judgment without thought.

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There has to be some thought given to whether there's enough here that justifies the entry of a default judgment.

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That could cut across a range of issues, including, say, statute of limits.

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If it's an open and shut case on statute of limits, 1608A would put a bar on it.

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If there's some dispute, just like with anything else,

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If there's some reason to think it's at least colorable, but not a slam dunk, then 16.080 wouldn't stop the entry of a default judgment.

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That's one way to think about it.

[00:09:15] Speaker 08:
So I'm not sure that 16.080 is foreign to a determination on statute of limits, or at least including statute of limits within the can of things that a district court could take into account, but for the following.

[00:09:27] Speaker 08:
Here's a different distinction, and I just would like to get your reaction to it, which is that

[00:09:31] Speaker 08:
The cases like Wood and Day that involve a district court or a trial court or even a court of appeals, Sue Esponte noting a limitations issue, are ones in which the defendant is actually present.

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This case is one in which the defendant is absent.

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And so what about a line that draws a line, not between statute of limitations and other issues, but a line between circumstances in which the defendant is there and circumstances in which the defendant is never there?

[00:10:02] Speaker 08:
Because when the circumstance in which the defendant is never there, you don't know whether the defendant wants to assert the statute of limits.

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The defendant, of course, can waive it if it wants to.

[00:10:09] Speaker 08:
We know from Wood and Day that if the defendant does waive it, then sui sponte can't be raised.

[00:10:15] Speaker 08:
So the line would be between circumstances in which the defendant's on the scene and circumstances in which the defendant has voluntarily decided that they don't want to be a part of the proceeding.

[00:10:24] Speaker 08:
And in that situation, the argument would go, if the defendant's not on the scene, it's inappropriate to Sue Esponte raise an affirmative defense on behalf of a party who's not present to raise it on its own.

[00:10:36] Speaker 08:
But when a defendant is on the scene, as with Wood and Day and Owens,

[00:10:40] Speaker 08:
the defendant's there and is telling the court what it wants to do, albeit doing it late.

[00:10:46] Speaker 08:
What do you think about that line instead of the one that it seems like you were drawing?

[00:10:50] Speaker 08:
And you're welcome to use your question.

[00:10:51] Speaker 06:
I am already over time.

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But I suspect, Your Honor, that in this situation, not only has Iran not defended itself in this case, although it has defended itself in other matters not related to terrorism,

[00:11:05] Speaker 06:
It knows where the courthouse is.

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It knows how to retain counsel in Washington, D.C.

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when it chooses to do so.

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So were the court to conclude that in a situation where the defendant is entirely absent, the statute of limitations should not be raised on his or her or its behalf, but in a case where the defendant comes forward and explains its reason

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proffers a reason for its late response or its untimely response, then it would presumably be appropriate for the court to hear that reason and to evaluate it along with the other contentions that the defendant might have made.

[00:11:41] Speaker 06:
My time is expired.

[00:11:42] Speaker 06:
Thank you, Your Honor.

[00:11:43] Speaker 08:
Thank you, counsel.

[00:11:49] Speaker 05:
Good morning, Your Honors.

[00:11:50] Speaker 05:
May it please the Court.

[00:11:51] Speaker 05:
Derek Schaffer from Queen Emanuel here on behalf of the appellants generally, but in particular, the quinoa and the sheep plaintiffs.

[00:11:58] Speaker 05:
Your Honors, I'll endeavor to reserve, if I may, three and a half minutes for rebuttal on the suespante question that Mr. Schnavon was just addressing.

[00:12:06] Speaker 05:
Let me start, Judge Srinivasan, with the distinction that you were suggesting, because I think it aligns with the one that my colleague was suggesting as well.

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in the sense that I don't read 1608e very respectfully as encompassing affirmative defenses generally.

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I think it's different to say that the court is screening the prima facie case to see is there liability, is there damages, the sorts of things Judge Pollard was talking about.

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But as to the statute of limitations affirmative defense in particular, to your question, that is the easiest one to know is not

[00:12:36] Speaker 05:
properly analyzed under 1608E, the reason why we know from this court and from the Congress that this is not meant to be a jurisdictional statute of limitations.

[00:12:46] Speaker 05:
It's not serving that function, neither is it a statute of repose.

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This is something that can be forfeited, can be waived.

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And when you have a defaulting party like Iran that has remained altogether absent, the purposes served by a statute of limitations simply do not obtain.

[00:13:02] Speaker 08:
Iran is not offering any evidence whatsoever.

[00:13:08] Speaker 08:
distinction, vis-a-vis 1608E, between what the plaintiff is supposed to raise and what the defendant can raise.

[00:13:15] Speaker 08:
It's not a home run on the text, because the text still talks about right to relief, and you could conceive of statute of limitations as going to right to relief, or you could draw the distinction that you're suggesting, which is to say that 1608E has to do with things that the plaintiff brings forward in the complaint, and things that the defendant's supposed to bring forward in an answer just are off the table for 1608E purposes.

[00:13:34] Speaker 07:
I'm sorry, can you hear me?

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that a statute of limitation goes to right to release?

[00:13:40] Speaker 05:
I don't buy that, Judge Edwards.

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That's a critical point.

[00:13:42] Speaker 07:
And I think that a statute of limitation has nothing to do with release.

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It's not a matter of quality of proof.

[00:13:48] Speaker 05:
Judge Ebert, you say it perfectly.

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The Supreme Court is, I read the Supreme Court as having said that, essentially, that absent extraordinary circumstances, unless we have a jurisdictional statute of limitations, perhaps a statute of repose, it does not go to right of relief.

[00:14:02] Speaker 05:
We know that because it's waivable, because it can be forfeited.

[00:14:05] Speaker 08:
And you don't think it goes to claimant establishes his claim either?

[00:14:09] Speaker 05:
I don't think so, Judge Srinivasan, because we know any category of cases where, we know from Wood,

[00:14:14] Speaker 05:
that if Iran waves, and I'll make my respectful submission that Iran has waved here, but then it does not have any bearing, and in fact we know by definition a district court would be abusing its discretion or a court of appeals to evoke it, so I don't think it goes too right in that fundamental sense.

[00:14:30] Speaker 05:
If Congress wanted a different result, it can make the statute of limitations jurisdiction.

[00:14:36] Speaker 03:
Go ahead, follow up.

[00:14:37] Speaker 08:
Just follow the one.

[00:14:38] Speaker 08:
I'm not sure the text dictates the conclusion one way or the other.

[00:14:42] Speaker 08:
I'm definitely not sure it forecloses the understanding that you're suggesting.

[00:14:46] Speaker 08:
I guess I'm not 100% sure it dictates it either.

[00:14:50] Speaker 05:
I think it's a better reading when you look at it against the backdrop of the laws from the Supreme Court on down addressing the statute of limitations, the traditional statute of limitations like we have here.

[00:15:00] Speaker 05:
And especially when you consider the purposes of statute of limitations, which is to protect the defendant against stale claims

[00:15:05] Speaker 05:
so they can have the proper proof that is totally out of the picture when Iran is not offering any proof whatsoever.

[00:15:11] Speaker 07:
And the law of the circuit, the reliance on statute of limitations is an affirmative defense and is waived if a party does not raise them in a timely fashion.

[00:15:20] Speaker 07:
Now, I say this because I wrote it, but it is the law of the circuit.

[00:15:26] Speaker 07:
It is the law of the circuit.

[00:15:27] Speaker 07:
So there's got to be some exceptional circumstance

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I don't see habeas as doing it.

[00:15:33] Speaker 07:
There's got to be some exceptional circumstance to walk around the law of the circuit, which is unrefuted, as far as I can tell.

[00:15:40] Speaker 05:
We totally agree with that, Judge Edwards.

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And I would just underline the point that the statute of limitations, in particular, is not serving its purpose, Judge Feeney Boston, when you have a totally absent defendant who's not being served from slumber, who's not offering any proof, much less stale proof.

[00:15:54] Speaker 08:
So then I think once 16.080

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If 16.08e doesn't compel a district court to consider statute of limitations because textually what it's talking about is things that are incumbent upon the plaintiff to bring to the table rather than for the defendant to bring to the table, then we're back to what do we do in the absence of 16.08e forcing a district court to look at it.

[00:16:15] Speaker 08:
one could draw a distinction between cases in which the defendant is present in cases in which the defendant is absent.

[00:16:21] Speaker 05:
And that makes perfect sense, and I think it makes special sense for the statute of limitations, given that the purposes of the statute of limitations are not being served.

[00:16:30] Speaker 03:
Are you claiming that district courts lack the authority as a legal matter, or are you claiming that the discernment of what circumstances are extraordinary under the Supreme Court's line of cases is within their discretion, or do we make a categorical determination for extraordinary circumstances?

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Our respectful submission is the district court does not have discretion in this circumstance to raise a statute of limitations to respond to.

[00:16:56] Speaker 03:
In this subcategory?

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I mean, it has discretion in some of the cases.

[00:17:01] Speaker 05:
I don't think as to the statute of limitations, Judge Pilar, and certainly not when you have an absent defendant.

[00:17:05] Speaker 03:
I mean, in like habeas cases.

[00:17:06] Speaker 05:
In habeas cases, it is different.

[00:17:08] Speaker 05:
Courts no courts.

[00:17:09] Speaker 05:
Courts no comedy is between state and federal.

[00:17:11] Speaker 05:
The basis decision reflect in policy and international comedy that are categorically reserved for the political branches.

[00:17:17] Speaker 03:
Right, I get the substance of it, but I'm just trying to get the really formal way that you're articulating the standard.

[00:17:23] Speaker 03:
Exceptional circumstances is a determination that we make on a categorical basis about whether in a subcategory of cases like FSIA cases where the defendant has defaulted or FSIA cases in general versus habeas cases versus

[00:17:37] Speaker 03:
land rights cases, whatever, that we make the exceptional circumstances determination categorically, and then if we find exceptional circumstances, then it may be within the discretion of the district court, an individual.

[00:17:50] Speaker 05:
I agree with that formulation.

[00:17:52] Speaker 05:
I think the general rule is that a district court has no discretion to raise the statute of limitations to its ponte.

[00:17:58] Speaker 05:
And if the rule is otherwise Judge Pollard, then the door is going to swing both ways.

[00:18:02] Speaker 05:
And in every case,

[00:18:04] Speaker 05:
where a defendant has forfeited a statute of limitations, it will be open to that defendant to argue that a district court abuses its discretion by declining nonetheless to give it the benefit of that protection.

[00:18:14] Speaker 08:
So think about Owens, for example.

[00:18:15] Speaker 08:
In Owens, sedans, present, absent, present, absent, present, or something like that.

[00:18:20] Speaker 08:
And then it ends up being present.

[00:18:23] Speaker 08:
the Court of Appeals, our court, decided that we would take into consideration at least two non-jurisdictional arguments that were forfeited.

[00:18:32] Speaker 05:
Yes, not the statute of limitations.

[00:18:33] Speaker 08:
Not the statute of limitations, but the statute of limitations was different in that case because there, Sudan's argument was that it's jurisdictional.

[00:18:39] Speaker 05:
It wasn't the only argument, Judge Green of Austin.

[00:18:41] Speaker 05:
If you look at Sudan's brief, particularly page 59, it also made the argument in the alternative

[00:18:46] Speaker 05:
that essentially what Your Honor was suggesting, that even if the statute of limitations is not jurisdictional, it goes to sufficiency of the complaint.

[00:18:54] Speaker 08:
I looked at the brief.

[00:18:55] Speaker 08:
I didn't see that, but I'll take another look.

[00:18:58] Speaker 08:
But regardless of what they argued, the way the court resolved it was on the ground that it's non-jurisdictional.

[00:19:06] Speaker 08:
And as I read the court's decision, the court said, it's non-jurisdictional, therefore we're not going to go on.

[00:19:11] Speaker 08:
Now, it's not apparent to me, in a case in which the defendant is present, as Sudan was, in Owens, why one would draw a divide between the forfeited arguments that we chose to take up, like whether the statute supports computer advantages.

[00:19:27] Speaker 05:
Well, punitive damages, I think, is an easy one, because it goes, I think, to affirmative relief.

[00:19:33] Speaker 05:
The affirmative relief in the form of damages, liability and damages, certainly are subject to testing.

[00:19:38] Speaker 05:
I think the court was acknowledging that much by taking up that aspect of Sudan's argument.

[00:19:42] Speaker 05:
But I think, Judge Srinivasan, if this court

[00:19:45] Speaker 05:
thought that there were the opening that Judge Bates has suggested or the district courts have suggested in this case, I think it would have gone further in Owens to specifically address the statute of limitations arguments actively made by Sudan to the extent that there was an abuse of discretion by the court in not taking cognizance of it.

[00:20:02] Speaker 03:
Well, and Mr. Schaeffer, there's the distinction that we recognize in Owens itself in footnote seven

[00:20:08] Speaker 03:
that the statute of limitations is an affirmative defense, and under rules eight and 12, every defense to a claim for relief must be asserted as opposed to measuring the scope of punitive damages, measuring the nature of the basis for the claim for relief.

[00:20:25] Speaker 03:
So isn't that a distinction you'd rely on?

[00:20:28] Speaker 05:
We agree, and Judge Edwards makes the point.

[00:20:30] Speaker 05:
That, I think, is consistent with the law of the circuit and the law of the land.

[00:20:33] Speaker 05:
And one final point about this, as my time draws short,

[00:20:37] Speaker 05:
To the extent that there is any discretion of Judge Pollard, in any category of cases, to be raising the statute of limitations to Espante, it should be for the reason that courts traditionally do, and it's within their competence, to say there's no good faith claim here.

[00:20:50] Speaker 05:
There's no colorable claim.

[00:20:52] Speaker 05:
One looking at the face of this would know that it is grossly anti.

[00:20:56] Speaker 08:
The thing about the affirmative defense rationale, I mean,

[00:20:58] Speaker 08:
The reason why I come back to absent party is that we know, at least in some situations, even if a defendant has forfeited a statute of limitations defense and then comes on the scene later and asserts it, the court can sue Espante, raise it on their behalf, and then take it into account.

[00:21:13] Speaker 08:
We know that.

[00:21:14] Speaker 08:
In certain limited categories of cases, I think it's the habeas cases.

[00:21:19] Speaker 08:
Right.

[00:21:19] Speaker 08:
So at least there's no ironclad rule across the board that says because it's an affirmative defense, if it's forfeited, there's no authority suesquante to raise it.

[00:21:27] Speaker 05:
If there's no categorical rule, I would respectfully characterize it as a categorical and limited exception.

[00:21:32] Speaker 05:
One that is limited to the very special context of habeas cases, where Congress, of course, through EDPA, has imposed very stringent limitations to protect this balance between federal and state courts.

[00:21:43] Speaker 05:
And courts know courts.

[00:21:45] Speaker 05:
But courts don't know comedy.

[00:21:46] Speaker 05:
Courts don't know foreign policy.

[00:21:47] Speaker 05:
And I think, very respectfully, a district court goes out of its lane.

[00:21:51] Speaker 08:
What if the United States comes in a case and says, even though the statute of limitations has been forfeited, we still think that you ought to recognize it?

[00:22:00] Speaker 05:
Tougher case, I would submit.

[00:22:01] Speaker 05:
It's not this case.

[00:22:02] Speaker 08:
But I think you would need to have it from the Congress, Judge Srinivasan, because Congress, I think... Even if the United States comes in, then we have an executive stamp of approval on a comedy concern.

[00:22:12] Speaker 05:
You do, and I think that would make for a better argument for the district court that our friends for the amicus would make, but I think Congress, when it deliberately legislates as it did here,

[00:22:22] Speaker 05:
and tries to make it more expansive and friendlier, and specifically has a non-jurisdictional statute of limitations that has understood the way that Judge Edwards articulated and the way that this court, as Judge Pollard notes, articulated and owns, I think it would not be up to the United States, essentially, to invoke a forfeited statute of limitations offense, at least perhaps in an extraordinary circumstance.

[00:22:42] Speaker 05:
And certainly, what should not happen is that a district... Why then?

[00:22:45] Speaker 08:
It seems like an extraordinary circumstance.

[00:22:46] Speaker 08:
The United States comes in and says, we have a foreign policy concern.

[00:22:50] Speaker 08:
You ought to vindicate the statute of limitations in the statute.

[00:22:53] Speaker 05:
It would be more extraordinary than what we have here.

[00:22:56] Speaker 05:
As Your Honor knows, it happens in some cases.

[00:22:58] Speaker 05:
It did not happen here.

[00:22:59] Speaker 05:
And I think it makes it an easier case, respectively, on this question of whether the district court had discretion to raise this offense to Espante.

[00:23:06] Speaker 05:
Thank you, Your Honor.

[00:23:07] Speaker 08:
Thank you.

[00:23:15] Speaker 00:
Thank you, Your Honor, and may it please the court.

[00:23:17] Speaker 00:
My name is Marcella Coburn.

[00:23:18] Speaker 00:
On behalf of the court appointed amicus, I'll be addressing the Suez-Fonte issues.

[00:23:24] Speaker 00:
On appellants' view, a district court can never raise a forfeited statute of limitations defense in an FSIA case, even in a circumstance where the claim is extremely untimely, where the plaintiff concedes that their claim is untimely, where the plaintiff has no reason for why their claim was untimely,

[00:23:42] Speaker 00:
and when there are extraordinarily complicated factual issues.

[00:23:47] Speaker 00:
That could lead to what the district court in this case called the potential for nearly endless litigation.

[00:23:52] Speaker 03:
How do you deal with the fact that when it's in the discretionary hands of the district courts, we end up with really functionally identical cases and one district judge in discretion decides to raise it, another doesn't.

[00:24:08] Speaker 00:
If the decision is discretionary, I do think there's a possibility for some sort of similarly situated plaintiff's being treated differently.

[00:24:15] Speaker 00:
That's just a fact of discretion.

[00:24:17] Speaker 00:
But that's not to say that this court can't identify and explain factors that the district courts would have to apply if they do decide to exercise their discretion.

[00:24:27] Speaker 03:
What about a defendant who doesn't show up at all, as Judge Srinivasan is positing?

[00:24:32] Speaker 00:
In that case, on the side of authority,

[00:24:35] Speaker 00:
whether the district court has authority to raise this at all, I still think that in FSIA cases where it's really the exception rather than the rule, at least in terrorism exception cases, that a foreign sovereign defendant appears, you have a situation where in these kinds of cases, the statute of limitations is essentially a nullity.

[00:24:55] Speaker 00:
It never gets applied.

[00:24:57] Speaker 00:
And that's really different than ordinary civil litigation where I don't think you have a category of cases

[00:25:04] Speaker 00:
where a statute of limitations that Congress did pass, even knowing that there would be.

[00:25:08] Speaker 08:
But it only doesn't get applied because the defendant doesn't show up.

[00:25:10] Speaker 08:
I mean, it's an oddity because the statute of limitations is for the defendant to raise or not.

[00:25:16] Speaker 08:
The defendant can affirmatively decide to waive it, as we know.

[00:25:19] Speaker 08:
And in that situation, the court can't nonetheless say, I know you want to waive it, but I'm not letting you waive it.

[00:25:24] Speaker 08:
That can't happen.

[00:25:26] Speaker 08:
But then in a situation in which the defendant doesn't even show up, we don't even know whether the defendant wants to waive it.

[00:25:31] Speaker 08:
and it's theirs to raise.

[00:25:33] Speaker 08:
So it seems odd to say that in that circumstance a court, at least there's an arguable oddity in saying that in that circumstance a court nonetheless should note it, assume that the defendant wants to raise it, not have an opportunity to have a dialogue with the defendant to make sure that the defendant cares about it because the defendant isn't in court.

[00:25:52] Speaker 00:
I think that is true in

[00:25:54] Speaker 00:
in an ordinary civil litigation, where the district court's role really is to see what the parties want to do and try the case that the parties are raising.

[00:26:04] Speaker 00:
But here, where we do have section 1608E, which does give the district court some role in looking more closely into these cases, and where you do have a statute of limitations, and where the consequences of- So as to 1608E, what's wrong with the distinction that was being suggested earlier between

[00:26:21] Speaker 08:
A screening function that's predicated on items as to which the plaintiff has to come forward with proof and a screening function that then reaches out to embrace considerations as to which the defendant is supposed to come forward with proof because the burden is on the defendant to raise or not raise the statute of limitations.

[00:26:38] Speaker 00:
1608E doesn't clearly say one way or the other.

[00:26:42] Speaker 00:
And I think Congress's silence in that case cuts both ways, in the sense that Congress also didn't clearly say that the district court had to look at the statute of limitations or could look at the statute of limitations in the habeas context.

[00:26:55] Speaker 03:
So I... But here Congress could have, and Congress was looking at this issue of timeliness, and it could have, instead of saying, you know, could have said time bars jurisdictional,

[00:27:06] Speaker 03:
It could have said, sort of an intermediate position, the plaintiff has to proffer at least evidence that its claim is timely.

[00:27:15] Speaker 03:
That's absolutely open to Congress to have done it.

[00:27:17] Speaker 03:
It didn't do that.

[00:27:18] Speaker 00:
That's true, Your Honor.

[00:27:19] Speaker 00:
And that's true, again, in the habeas context also.

[00:27:22] Speaker 00:
And in this case, too, even when Congress

[00:27:24] Speaker 00:
was passing section 1608E when it knew there could be default judgments in these cases, it still does have a statute of limitations that exists.

[00:27:32] Speaker 00:
And so if the court were to say under absolutely no circumstances does a district court have authority under the FSIA in terrorism exception cases, which with few exceptions, the foreign sovereign defendants aren't appearing, the burden of that rule and the total inability of district courts to raise the statute of limitations to Asplante Falls on district courts

[00:27:54] Speaker 00:
And it also falls potentially on third parties that may not be before the court.

[00:27:58] Speaker 00:
And that's different than ordinary cases.

[00:28:00] Speaker 03:
You talked about the fund.

[00:28:03] Speaker 03:
How does that work in the sense of

[00:28:06] Speaker 03:
Is money being dispersed as we go along?

[00:28:09] Speaker 03:
Are we waiting until the sunset and then it's dispersed?

[00:28:14] Speaker 03:
You talked about the interplay among the claims of those who filed timely and those who didn't.

[00:28:21] Speaker 00:
Yes, Your Honor.

[00:28:21] Speaker 00:
There's a little bit of both.

[00:28:23] Speaker 00:
The fund has done two disbursements so far, one at the beginning of 2017.

[00:28:29] Speaker 00:
that encompass people who brought judgments to the court up until the middle or end of 2016.

[00:28:35] Speaker 00:
That disbursement gave about I think around 13%.

[00:28:40] Speaker 00:
The second one was at the beginning of this year in 2019.

[00:28:44] Speaker 00:
which encompassed claims brought between 2016 and 2018, plus some of the people from the first round who were eligible for a second round payment, that gave the judgment holders about 4%.

[00:28:56] Speaker 00:
So because of the pro rata nature of the fund and because there are a lot of very large judgments, the plaintiffs who go to the fund, there will be an effect on

[00:29:10] Speaker 03:
other plaintiffs who go toward the flood.

[00:29:20] Speaker 03:
some country who was working for an embassy and their heirs are seeking, what is the nature of the evidence that they bring in?

[00:29:31] Speaker 03:
Is it reliable?

[00:29:32] Speaker 03:
Are there distinctions that a district judge sitting here in D.C.

[00:29:35] Speaker 03:
can make between claims that really seem pie in the sky and claims that seem substantial?

[00:29:42] Speaker 00:
Because the district court is looking at the facts under 1608E and I think depending on

[00:29:48] Speaker 00:
the evidence that they are able to bring forward, whether it's affidavits or whether the court has a hearing, whether they're certified government documents or government documents, 1608E does give the district court some flexibility in what counts as satisfactory evidence toward it.

[00:30:04] Speaker 00:
So there is an opportunity for the district court to look at that.

[00:30:08] Speaker 00:
But as I was saying, in the case where the district court has no authority to raise an affirmative defense, where there's extremely complex factual questions, where it's a really, really hard case, and where the claim might be untimely by a matter of decades.

[00:30:22] Speaker 03:
What are some examples, what are you thinking of when you say extremely complex factual situations?

[00:30:28] Speaker 00:
Sort of what you were talking about, Your Honor.

[00:30:31] Speaker 00:
If the claim is very old and if the evidence of the person being a plaintiff who can bring the claim under the statute, their employment as a U.S.

[00:30:40] Speaker 00:
contractor, their placement at the

[00:30:43] Speaker 00:
emcee at the time.

[00:30:44] Speaker 00:
And it's not just the kinds of cases that we have here.

[00:30:49] Speaker 08:
These cases – And just to be clear, even in that situation, if the defendant shows up in waves, the court has no choice but to get to the complicated issue.

[00:30:55] Speaker 00:
That's right.

[00:30:55] Speaker 00:
If the defendant shows up affirmatively, deliberately relinquishes that affirmative defense, that's correct, Your Honor.

[00:31:02] Speaker 08:
And we just don't know when the defendant's not there.

[00:31:04] Speaker 00:
And I think because we don't know, that's why it's a forfeiture and it's not a waiver.

[00:31:09] Speaker 00:
Even in cases where the foreign sovereign defendant defaults, because there's no evidence of intent, we can't call it a waiver.

[00:31:18] Speaker 00:
So that's why it's a forfeiture.

[00:31:20] Speaker 00:
And that's why the district court could have the authority to do that.

[00:31:24] Speaker 00:
If it were a waiver, then it wouldn't have that authority.

[00:31:26] Speaker 07:
I just don't understand what you're saying.

[00:31:28] Speaker 07:
You're starting with this notion that, gee, it would be horrible to take

[00:31:32] Speaker 07:
to somehow pare back the district court's authority.

[00:31:35] Speaker 07:
And what authority?

[00:31:36] Speaker 07:
We're talking about, first of all, the law of the circuit is pretty clear.

[00:31:40] Speaker 07:
And it uses the word waiver, even though I think it's mistaken use of the word waiver.

[00:31:45] Speaker 07:
But it's using the word waiver along with forfeiture to make it clear.

[00:31:48] Speaker 07:
That's a really firm notion.

[00:31:50] Speaker 07:
Statutory limitations, not raised, is gone.

[00:31:53] Speaker 07:
And so the district court is not sitting their crime that I've just lost something.

[00:31:58] Speaker 07:
The district court doesn't have anything.

[00:32:00] Speaker 07:
And then there really is the well-respected notion in our country that the parties try their cases.

[00:32:06] Speaker 07:
And no one is preventing Iran from coming in, like Sudan, coming in and saying whatever they have to say about statute of limitations.

[00:32:14] Speaker 07:
They didn't do it.

[00:32:15] Speaker 07:
And so it's kind of hard for me to feel sad.

[00:32:19] Speaker 07:
in the situation, and I don't see the 1608B respectfully, I don't see it.

[00:32:23] Speaker 07:
It's not there when you start with the baseline that if you don't raise statute of limitations, it's gone.

[00:32:32] Speaker 07:
The district court's not in play, and we don't let district courts try cases in this country.

[00:32:38] Speaker 07:
That's not their job.

[00:32:40] Speaker 00:
Your Honor, on the waiver point,

[00:32:43] Speaker 00:
I think there is – essentially, waiver and corpature are the same in the ordinary civil litigation because of the party presentation principle, because if a defendant shows up and doesn't raise their affirmative defense, it is essentially the same as a waiver because of the party presentation principle.

[00:33:00] Speaker 00:
But in specific kinds of cases, like the habeas cases with a res judicata affirmative defense, and we argue like the cases here, that rule is different.

[00:33:12] Speaker 07:
talks about, it's a cabin situation because they're institutional interests.

[00:33:18] Speaker 07:
There's no institutional interests here where the court, first of all, the fund is not something the district court, that's your argument, that's not the district court's rationale.

[00:33:29] Speaker 07:
So I don't know how it's even before us, the draining of the fund.

[00:33:33] Speaker 07:
But in the habeas case, it's a very limited situation where the court is talking about institutional interests that are in play.

[00:33:41] Speaker 07:
There are no institutional interests here in play.

[00:33:43] Speaker 07:
It's just like the case that the district court judge relies on involving race due to crime.

[00:33:54] Speaker 07:
It's totally an opposite situation.

[00:33:58] Speaker 07:
The court says, we've already decided this.

[00:34:01] Speaker 07:
So in that situation, we'll step in and say, we're not going to let it, we can step in on our own, maybe we can step in on our own motion.

[00:34:08] Speaker 07:
So I mean, the norm is, statute of limitations not raised is gone, whether you call it forfeiture or waiver, it's gone.

[00:34:17] Speaker 00:
I certainly agree that that's the norm.

[00:34:19] Speaker 00:
And I agree that the exception to that is narrow.

[00:34:23] Speaker 00:
The reason I think there are institutional interests in this case are in part because of section 16-O-A-B, which envisions a sort of screening function for the district court that is really different than it is in other cases.

[00:34:34] Speaker 07:
But wait.

[00:34:34] Speaker 07:
The screening function, I'm sorry.

[00:34:36] Speaker 07:
The screening function is not lost.

[00:34:38] Speaker 07:
The district court can still look at matters of proof.

[00:34:40] Speaker 07:
This is not a matter of proof.

[00:34:42] Speaker 07:
Statute of limitations is not a matter of the quality of the evidence

[00:34:46] Speaker 07:
And the district courts have been doing this, at least in my recollection.

[00:34:49] Speaker 07:
I think I've been on some of the cases in default situations where they've done it.

[00:34:54] Speaker 07:
The district court has looked at the quality of the evidence.

[00:34:57] Speaker 07:
That's not what statute of limitations is about.

[00:35:00] Speaker 00:
It still does, Your Honor.

[00:35:01] Speaker 00:
We would just say that it is consistent with the kind of institutional interests and role that's the same as in habeas.

[00:35:09] Speaker 03:
You make a comedy argument, and the district court relied quite eloquently on comedy, that even a sovereign that's a state sponsor of terrorism is a sovereign.

[00:35:20] Speaker 03:
And there's something really important and different about that.

[00:35:24] Speaker 03:
On the other hand, didn't Congress weigh the comedy interests in enacting the terrorism exception to the foreign sovereign immunity in the act?

[00:35:37] Speaker 00:
It did, Your Honor.

[00:35:39] Speaker 00:
there's still, I think, a background of comedy that's evidenced in Rule 1608E, for instance.

[00:35:46] Speaker 03:
Yes, but let me push you even further.

[00:35:48] Speaker 03:
The United States has not been in these cases, hasn't filed a statement of interest in these cases.

[00:35:53] Speaker 03:
There's no amicus brief from the United States in these cases.

[00:35:57] Speaker 03:
We don't have any indication.

[00:35:59] Speaker 03:
It hasn't tried to nuance its listing of these states as state-sponsored terrorism, say, well, but only up to so far.

[00:36:08] Speaker 00:
That's right, Your Honor, but I think as a categorical matter, there is a residual comedy interest in these FSIA cases, even in the terrorism exception, and I think it's because of the fact that there is a foreign sovereign defendant.

[00:36:23] Speaker 08:
Can I ask one question?

[00:36:24] Speaker 00:
Yes.

[00:36:24] Speaker 08:
Do you know of any case in which a district court, as Sue Esponte, raised something that's a non-jurisdictional defense where the defendant's not there?

[00:36:35] Speaker 00:
I believe that was the case in the Claude Felter case in the Fourth Circuit, Your Honor.

[00:36:40] Speaker 00:
Sudan was not involved in that case, and in fact, the United States did file a brief in that case.

[00:36:46] Speaker 00:
That's because there was a constitutional question that they weighed in on, but they also filed a brief and they said the district court had authority in the res judicata context to consider a suicide the issue of res judicata.

[00:36:57] Speaker 00:
So I think Claude Felter in the Fourth Circuit.

[00:36:59] Speaker 03:
In fact, it's quite strange.

[00:37:00] Speaker 03:
I think your opponents distinguished that as Sudan having had an opportunity.

[00:37:05] Speaker 03:
They were no more there than Iran is here.

[00:37:10] Speaker 00:
I don't believe that they were, Your Honor, or at least I don't believe that they

[00:37:15] Speaker 00:
I don't believe there's a meaningful difference between those two things.

[00:37:18] Speaker 08:
Is there any case that involves statute of limitations in particular that you're aware of?

[00:37:25] Speaker 08:
I'm not saying that necessarily.

[00:37:26] Speaker 08:
I mean, it's obviously an idiosyncratic thing.

[00:37:28] Speaker 08:
I'm not saying that it's positive.

[00:37:29] Speaker 00:
Not that I'm aware of, Your Honor.

[00:37:30] Speaker 08:
But I'm just curious to know whether you know.

[00:37:32] Speaker 00:
Not that I'm aware of, Your Honor.

[00:37:33] Speaker 00:
So if I could for a minute talk about the abuse of discretion, and I think it would be helpful for this court if it says that there is some amount of authority that district courts have for it to identify the factors that would go to the district court's discretion.

[00:37:47] Speaker 00:
Some of those could be whether there is a colorable argument on timeliness.

[00:37:51] Speaker 00:
And on that case, I do think that the plaintiffs we have here on a spectrum

[00:37:56] Speaker 00:
you have the shaken canoe of plaintiffs on one end who are close both in terms of time to the related action provision, which my colleague will discuss more, and also in terms of their particular argument.

[00:38:11] Speaker 00:
So that is a factor the court could look at.

[00:38:13] Speaker 03:
It could also look at.

[00:38:14] Speaker 03:
Those are the plaintiffs who say that they piggybacked on Aliganga and were in fact, for that reason, timely.

[00:38:19] Speaker 00:
Yes, Your Honor.

[00:38:21] Speaker 00:
And if I could just make

[00:38:24] Speaker 00:
one more point, Your Honor.

[00:38:26] Speaker 00:
And I would just say the court can also look at, and it did in these cases, how far past the statute of limitations the claims are.

[00:38:33] Speaker 03:
Do you have other factors you'd recommend?

[00:38:34] Speaker 03:
I don't want you not to finish your list just because of the time.

[00:38:37] Speaker 00:
In addition to how untimely the claims are, and in addition to the colorable basis for a timeliness argument, the court can also look at whether there is a reason for the untimeliness.

[00:38:46] Speaker 00:
And that's, I think, a situation where, again, the Canoea plaintiffs in particular have

[00:38:51] Speaker 00:
a reason, it wasn't before the District Court initially, but they have articulated a reason.

[00:38:57] Speaker 00:
And so I think that is also a factor that District Court can look at in exercising its discretion.

[00:39:03] Speaker 00:
Thank you, Your Honor.

[00:39:03] Speaker 08:
Thank you, Counsel.

[00:39:05] Speaker 08:
Mr. Schaeffer will give you your rebuttal time.

[00:39:08] Speaker 05:
Thank you, Your Honor.

[00:39:09] Speaker 05:
Being very generous and I'll be very brief, just to address the exchange that you had about the Fourth Circuit's decision, and I believe it was the Claude Felter case.

[00:39:17] Speaker 05:
Just to underline, Jeff Ballard, that was about res judicata, as my friend, Ms.

[00:39:22] Speaker 05:
Coger, notes.

[00:39:23] Speaker 05:
But the airline case that was decided by the Fourth Circuit prior to that was quite categorical.

[00:39:28] Speaker 05:
The Fourth Circuit held that a statute of limitations defense, by definition, could not be raised by a district court.

[00:39:34] Speaker 05:
Subas-Fonte said it was, by definition, legal error for a district court to have invoked the statute of limitations, citing the same basic principles about the affirmative nature of a statute of limitations defense, one that is forfeitable

[00:39:46] Speaker 05:
one that is waivable.

[00:39:47] Speaker 05:
And if I could make one last point about that.

[00:39:50] Speaker 05:
To the extent that it may be a slippery distinction between forfeiture versus waiver, it has import to it.

[00:39:55] Speaker 05:
I think the amicus acknowledges rightly that the Supreme Court held in Wood that it is by definition error for a court to respond to invoke a statutory mediation's defense that has been waived.

[00:40:08] Speaker 05:
For the case of Iran, which we know is a sophisticated litigant, which we know is appearing in US courts, if you credit the District Court's theory, and we will be addressing this momentarily, but if you credit the District Court's notion that on the face of these complaints, they were untimely, I think it would follow that Iran has knowingly waived its national limitations defense.

[00:40:28] Speaker 05:
It knows there are other complaints.

[00:40:30] Speaker 05:
It can see that they are untimely.

[00:40:32] Speaker 05:
It is choosing not to appear in this case, even as it is appearing

[00:40:35] Speaker 05:
in other U.S.

[00:40:36] Speaker 05:
courts to defend other cases, I would respectfully submit that this is a case of waiver and the court could reverse on that basis as well.

[00:40:44] Speaker 08:
So one last question before we sit down.

[00:40:45] Speaker 08:
So as between race judicata and statute of limitations, if we take as a given that race judicata can be raised to a sponte by a district court even when the defendant's not present,

[00:40:58] Speaker 08:
the difference, the distinction you draw between race judicata and statute of limitations in that regard has to do with the systemic interests that are protected by race judicata?

[00:41:05] Speaker 05:
Exactly that, Judge Greenblast, yes.

[00:41:07] Speaker 05:
I think that that is important.

[00:41:09] Speaker 05:
I also think race judicata is the very rare argument that is at the core of courts.

[00:41:16] Speaker 05:
court's institutional interests and court's competence.

[00:41:19] Speaker 05:
It is really at the center of them.

[00:41:20] Speaker 05:
It's about what courts have already decided.

[00:41:22] Speaker 05:
And that really does differentiate it quite clearly from a statute of limitations offense.

[00:41:27] Speaker 08:
And if it was completely about courts, it would be for the court to raise and not raise as it saw fit.

[00:41:31] Speaker 08:
When we know it's an affirmative defense, the defendant can raise.

[00:41:34] Speaker 05:
I would put it this way.

[00:41:36] Speaker 05:
On a spectrum of what courts know about and care about, race judicata is on one polar end of that.

[00:41:42] Speaker 05:
I think a statute of limitations defense that protects a particular defendant, as Judge Edwards says, that is part and parcel of what courts sit back and let parties argue or not argue as they see fit.

[00:41:54] Speaker 05:
And I think it is telling that the only cases that have been cited

[00:41:58] Speaker 05:
in which courts have suespante invoked any of these considerations.

[00:42:03] Speaker 05:
They're habeas cases and race judicata, and that is it.

[00:42:06] Speaker 05:
And in the Fourth Circuit's decision that's being cited, in cloud filter itself, it specifically emphasizes the race judicata defense.

[00:42:14] Speaker 05:
And if it were instead focused on international comedy and foreign policy as the district courts were here, I'd respectfully submit that really does transgress the separation of powers.

[00:42:24] Speaker 05:
Those are the considerations that are reserved for Congress, perhaps for the executive branch as well, and we know Congress balanced those considerations for itself in laying down the statute of limitations it did, which is a traditional, waivable, forfeitable, non-jurisdictional statute of limitations defense.

[00:42:40] Speaker 05:
Thank you, Your Honor.

[00:42:41] Speaker 08:
Thank you, Counsel.

[00:42:44] Speaker 08:
Okay, we'll move on to the second set of issues.

[00:42:50] Speaker 04:
Good morning.

[00:42:51] Speaker 04:
Cliff Elgarten for the Amicus Smith plaintiffs and all appellants.

[00:42:56] Speaker 04:
I'm going to ask you to assume the judge correctly reached the statute of limitations question and address whether 1083C3 applies at all here.

[00:43:07] Speaker 04:
And I'd urge you that whether you have to reach this issue or not, that your opinion not contain any implication that even if he would err,

[00:43:17] Speaker 04:
in reaching these issues at all.

[00:43:19] Speaker 04:
That did not contain any implication that he was correct in the way he interpreted the statute of limitations in 1083C3.

[00:43:27] Speaker 04:
And that's because 1083C3 is at bottom a permissive provision.

[00:43:34] Speaker 04:
It is intended to provide relief from a different section of the act having nothing to do with 1605AB.

[00:43:42] Speaker 04:
It expands

[00:43:44] Speaker 04:
the ability of victims to bring related actions.

[00:43:48] Speaker 04:
It does not constrict it in any way, and we're gonna know that from the language.

[00:43:52] Speaker 04:
So let me begin on common ground.

[00:43:53] Speaker 03:
It can't be, Mr. Elgarten, somewhere in between.

[00:43:55] Speaker 03:
It expands with limits.

[00:43:59] Speaker 03:
It expands with some built-in conditions.

[00:44:02] Speaker 03:
New group of people can come in, claims that previously might have been thought to be barred, but you gotta do this linking bridge 60 days.

[00:44:12] Speaker 04:
And the answer to that question is no, because it is not addressing 1605 AB at all.

[00:44:19] Speaker 04:
It is addressing a separate provision, which is the six-month statute of limitations that was newly put into this Act.

[00:44:27] Speaker 04:
So let me explain where we are on common ground.

[00:44:30] Speaker 04:
with the appointed amicus.

[00:44:32] Speaker 04:
The section we're dealing with in 1605 AB expanded the rights of certain people to bring athletes under 1605 A, under the terrorism section.

[00:44:44] Speaker 04:
Who were those people?

[00:44:45] Speaker 04:
They were the people who had worked side by side with injured citizens in those terrorist incidents.

[00:44:53] Speaker 04:
and were injured and killed in those incidents.

[00:44:55] Speaker 04:
And for the first time, Congress allowed them to bring the same kinds of actions that their brethren had previously brought, the people with whom they had worked side by side and had been allowed to go forward under the prior law.

[00:45:10] Speaker 04:
They had not been.

[00:45:12] Speaker 04:
And appointed amicus, and we agree on the basic proposition here, that 1605 AB, not 1083 C3,

[00:45:20] Speaker 04:
1605 AB was a way for otherwise time-barred plaintiffs, particularly plaintiffs who did not have a private right of action until 2008 to file suit if a related action had been timely filed under the prior law.

[00:45:38] Speaker 04:
That's what it says.

[00:45:39] Speaker 04:
It says nothing more.

[00:45:41] Speaker 04:
It contains no condition.

[00:45:43] Speaker 04:
It contains no restriction.

[00:45:44] Speaker 04:
It contains no limitation.

[00:45:46] Speaker 04:
It cites no defined terms.

[00:45:49] Speaker 04:
The important point here is that it was addressed to a different issue, 1083C3, not 1605AB.

[00:45:58] Speaker 04:
Why?

[00:45:59] Speaker 04:
Because Congress had created a new form of statute of limitations, a surprising form, which was a six-month limit on who could bring actions if

[00:46:12] Speaker 08:
the terrorist state had taken itself off the list.

[00:46:16] Speaker 08:
Can I just add one question?

[00:46:17] Speaker 08:
Under your interpretation of the statute, I understand the six-month point about the state taking itself off the list.

[00:46:23] Speaker 08:
Yes.

[00:46:24] Speaker 08:
Under your interpretation of the way these provisions interact, even if you're talking about a plaintiff who could have brought the claim before, so not the new set of plaintiffs, military officers, but suppose it's somebody who could have brought the claim before.

[00:46:37] Speaker 08:
They just didn't for whatever reason.

[00:46:39] Speaker 08:
And then the new statute's enacted.

[00:46:42] Speaker 04:
It would apply to them as it would reach them.

[00:46:45] Speaker 04:
It would apply to them as well.

[00:46:46] Speaker 08:
And they would have, there would be no limitations, period, for them.

[00:46:49] Speaker 08:
They could bring it forever.

[00:46:51] Speaker 04:
I disagree that it's a no-limitation provision, but no limitations under 1605 AB.

[00:46:56] Speaker 04:
And the reason is because, and this is, I don't like relying on legislative history, but we don't need to because the statute tells us the answer.

[00:47:04] Speaker 04:
There were people who were dissuaded and pushed out of court.

[00:47:08] Speaker 04:
And one of the things Congress was doing, for example,

[00:47:10] Speaker 04:
was correcting the problem with people who had been thrown out of court prematurely under narrow interpretation because there were lots of problems, as some judges on this court might remember, with the previous statute of limitations.

[00:47:25] Speaker 04:
Among others, there was the Vine case that comes up to this court in the form of Simon.

[00:47:30] Speaker 04:
You reverse.

[00:47:31] Speaker 04:
Cases were being thrown out and people were dissuaded from bringing cases.

[00:47:35] Speaker 04:
So, yes, they created an exemption that was broad enough to reach them.

[00:47:40] Speaker 08:
And this... And then they could bring the... There's no statute of limits that applies to them.

[00:47:44] Speaker 04:
There is... No, the six-month statute of limitations does apply.

[00:47:49] Speaker 04:
Why?

[00:47:50] Speaker 04:
Because we had in front of this court 22 cases from Libya, I've taken this off the Foreign Claims Settlement Commission website, involving 11 incidents... There's no statute of limitations that applies to them unless the state takes itself off the list.

[00:48:04] Speaker 04:
That would be true.

[00:48:06] Speaker 04:
And I think the court should not treat that as something that is disturbing.

[00:48:11] Speaker 04:
And I'll give you three reasons why that's true.

[00:48:13] Speaker 04:
One is they created an incentivized statute of limitations, which is the six-month statute of limitations.

[00:48:19] Speaker 04:
The second is, as this court knows from Austria versus Altman, your preconceptions or our preconceptions about what is

[00:48:27] Speaker 04:
correct under a statute of limitations don't really apply, just like the rule against retroactivity doesn't apply in the sovereign immunity field.

[00:48:36] Speaker 04:
There's no principle.

[00:48:37] Speaker 04:
These cases, no matter how you did it, were being brought 35 years after the statute of limitation had been, after the events had issued.

[00:48:47] Speaker 04:
That was permitted.

[00:48:48] Speaker 04:
Is there a big difference between 35 years and 40 years?

[00:48:52] Speaker 04:
I don't think so.

[00:48:53] Speaker 04:
I think Congress very specifically wanted to correct the error.

[00:48:58] Speaker 08:
No, but under the old regime, it was 35 years, but there was still a 10-year cap.

[00:49:02] Speaker 08:
No, there was a- But under the prior regime, there was.

[00:49:06] Speaker 04:
Yes, there was a limitation.

[00:49:08] Speaker 04:
But remember, it always reached back to when the cause of action, when the incidents took place.

[00:49:13] Speaker 04:
So there was always 35 years at stake.

[00:49:16] Speaker 04:
And on the international law, that is frequently the case where we do that.

[00:49:20] Speaker 04:
So Congress was not being sympathetic.

[00:49:22] Speaker 04:
to that issue.

[00:49:23] Speaker 04:
It was facing, and the reason it put 1083C3 in here is because Libya had been taken off the list in 2006, and we had 22 cases that were pending.

[00:49:37] Speaker 04:
So the related action wouldn't work with that group of cases and those 11 incidents at stake.

[00:49:45] Speaker 04:
And we had the Iraq cases, and we know that was a focus.

[00:49:48] Speaker 04:
We know there were at least a half a dozen Iraq cases, big ones,

[00:49:52] Speaker 04:
People had been dissuaded from bringing those cases.

[00:49:56] Speaker 04:
And they wanted to create a means.

[00:49:59] Speaker 04:
So those people, Iraq had been taken off the list in 2004.

[00:50:04] Speaker 04:
So they had created this related action provision in 1605 AD.

[00:50:08] Speaker 04:
No limits.

[00:50:09] Speaker 04:
But how do you make it available to Iraq and Libya?

[00:50:12] Speaker 04:
Because they are barred by the six month provision.

[00:50:15] Speaker 04:
And so you need 1083C3.

[00:50:17] Speaker 04:
That does that.

[00:50:19] Speaker 04:
And what does 1083C3 say?

[00:50:22] Speaker 04:
It creates no prohibition.

[00:50:24] Speaker 04:
It doesn't have prohibitory language at all.

[00:50:28] Speaker 04:
Every statute that creates a bar has prohibitory language.

[00:50:35] Speaker 04:
The immediately preceding section, C2, says you may only bring the action if

[00:50:41] Speaker 04:
only if there is no prohibitory language in this statute of limit, in this C3 provision at all.

[00:50:49] Speaker 04:
It's a permissive provision that allows you to go around the six month.

[00:50:55] Speaker 04:
And how do we know that?

[00:50:56] Speaker 04:
Because it's specifically cross-referenced as an exception to the six month.

[00:51:02] Speaker 04:
And you could look at all of your statutes of limitations, federal rule of appellate procedure,

[00:51:07] Speaker 04:
3, Federal Rule of Appellate Procedure 4.

[00:51:10] Speaker 04:
You may only bring an action within these within 30 days.

[00:51:14] Speaker 04:
You must file within 30 days.

[00:51:17] Speaker 03:
It just creates an odd inequality between the cases that are pending under 1083C3, where they have to be brought only, you know,

[00:51:30] Speaker 03:
They only timely commenced if the action is commenced not later than the later of 60 days between the entry of judgment of the original action or the day of the enactment of the sex.

[00:51:40] Speaker 03:
You've got a much tighter time frame.

[00:51:42] Speaker 04:
No, we don't because the six-month statute of limitations.

[00:51:46] Speaker 03:
But that's only if something has been delisted, the six-month.

[00:51:49] Speaker 04:
The six-month only.

[00:51:50] Speaker 04:
Yes, but that's what we... Look, there was only Iran, Iraq, and Libya.

[00:51:54] Speaker 04:
There were 22 Libya cases.

[00:51:56] Speaker 04:
There were six...

[00:51:57] Speaker 04:
Iraq cases pending.

[00:51:58] Speaker 04:
You could read about that in your Vine and Simon decision, and the Supreme Court takes that up in Beatty.

[00:52:04] Speaker 04:
Those cases were very real and very present to the mind.

[00:52:07] Speaker 04:
We know Congress – the president vetoed this act because of its application to Iraq cases.

[00:52:13] Speaker 04:
These were all meant to create that.

[00:52:15] Speaker 04:
So it didn't care about holding a RAND subject to it.

[00:52:19] Speaker 04:
It did care about creating an exception to the six month rule.

[00:52:24] Speaker 04:
And every prohibitory section

[00:52:28] Speaker 04:
contains a negative, 28 USC 2101.

[00:52:33] Speaker 04:
The action must be filed.

[00:52:35] Speaker 04:
The action of an appeal shall be taken.

[00:52:38] Speaker 04:
No appeal shall be brought before court unless all actions are forever barred under 2501 unless filed within six years.

[00:52:47] Speaker 04:
No action shall be maintained under 160587, the prior section, unless it was filed.

[00:52:54] Speaker 04:
But there are no words of prohibition here.

[00:52:57] Speaker 04:
There are two permissive

[00:52:58] Speaker 04:
statute of limitations, the prohibitory section are the background ones.

[00:53:04] Speaker 04:
Under the state law claims, state law would be subject to a state law cause of action unless you fall within either of these two permissions, 1605A-B or 1083C-3.

[00:53:18] Speaker 04:
And for the federal, we would have a barring statute of limitations for

[00:53:23] Speaker 04:
Causes of action that are created by federal statute for years shall be forever barred if not brought, but these create exemptions.

[00:53:30] Speaker 04:
You could actually look at that illustration on the 2401.

[00:53:33] Speaker 03:
So, just backing away up, you're arguing that 1083C3 doesn't also apply to the actions that are not expressly limited by 1605AB.

[00:53:48] Speaker 04:
N-83C3 is completely independent.

[00:53:53] Speaker 03:
Independent.

[00:53:53] Speaker 03:
Independent.

[00:53:54] Speaker 03:
So it doesn't apply to an action that wasn't pending on the date of the enactment, is your view.

[00:54:03] Speaker 04:
As we understand it, the exemption was to preserve Bolivia.

[00:54:08] Speaker 04:
Very specifically, it works, by its language, to preserve Bolivia

[00:54:12] Speaker 04:
and Iraq cases that were in this court and would not have been able to take advantage.

[00:54:25] Speaker 03:
1083C3B under your reading.

[00:54:31] Speaker 03:
So we have a limitation saying that it has to be brought no later than the later of 60 days after the date of entry of judgment in the original action on which the new action is piggybacking, or within 60 days of the date of enactment of this act.

[00:54:51] Speaker 03:
And unless this applies to cases that were not pending,

[00:54:55] Speaker 03:
as of the enactment of the law in 2008, to cases that were terminated before, then B doesn't have any function.

[00:55:03] Speaker 04:
No, absolutely, because it's not an exemption from 1605 AB.

[00:55:09] Speaker 04:
It created a limited exception from the six-month provision, where it is specifically cost-referenced.

[00:55:15] Speaker 08:
I thought your answer was going to be different, because I thought I understand what Judge Piller is saying, because if it only applies to pending cases, then

[00:55:23] Speaker 08:
the date of the enactment of this act turns out to be irrelevant, because A kicks in, because the date of the entry of judgment, which hasn't yet happened, would be the one that has force.

[00:55:32] Speaker 08:
But that wouldn't necessarily be true if the date of the entry of the judgment and the original action has to do with the judgment of the district court and it's a case that's pending on appeal.

[00:55:42] Speaker 04:
It only, well, if you look back to what the Iraq and Libya cases really were about,

[00:55:50] Speaker 04:
that's how it really would work, because it would actually save every single one of those cases.

[00:55:57] Speaker 08:
Because what was going on in those cases at the time of the enactment of the Act?

[00:56:00] Speaker 04:
Yes, those cases were actually more recently brought typically and were ongoing.

[00:56:06] Speaker 04:
Ongoing where?

[00:56:08] Speaker 04:
In which court?

[00:56:09] Speaker 04:
Usually in this court, actually.

[00:56:10] Speaker 04:
Three of the cases were before this court in

[00:56:13] Speaker 04:
The Simon case, Simon Beatty, that included Seon.

[00:56:17] Speaker 08:
So you would have been past 60, you would have already been past 60 days of the date of the entry of judgment in the district court.

[00:56:23] Speaker 04:
But you had 60 days from the date of the enactment of the statute.

[00:56:24] Speaker 04:
But you had 60 days from the date of the enactment of the statute.

[00:56:26] Speaker 04:
Of the act, and that was the saving grace year.

[00:56:30] Speaker 04:
That's how it worked.

[00:56:31] Speaker 04:
So they were trying to create the exemption from the six month provision, which is where it's specifically cross-referenced.

[00:56:38] Speaker 04:
It does not cross-reference, it is not cross-referenced at all.

[00:56:41] Speaker 04:
as a limitation on 1605 A and D. So what it functions as is a way for the cases that would be barred by the six month to take advantage of the broad related case provision that allows this broad filing, which you call unlimited, but it's only for that narrow class of people

[00:57:06] Speaker 04:
who were victims, this is not an open-ended thing, it was only for those victims who actually did not bring, and their brothers and sisters had brought, actions before from those incidents.

[00:57:18] Speaker 07:
Are you making the same argument that you made in the Smith Reef?

[00:57:22] Speaker 04:
Yes, I am.

[00:57:23] Speaker 07:
It sounds different to me.

[00:57:26] Speaker 07:
Every word is... Then I understood your argument.

[00:57:30] Speaker 04:
You know, I noticed that, that it didn't sound that way, because we don't start with what it's... We start with what 1605 AB said, and then we focused on how you should read it and comparing the language.

[00:57:47] Speaker 04:
What we should have said, what does 1083 C3 do?

[00:57:51] Speaker 04:
It's in the brief, it's in the middle of the brief.

[00:57:54] Speaker 04:
What does 1083C3 do?

[00:57:56] Speaker 04:
It serves exactly as intended, as an exemption from the six month provision, which allows 1605AB to function for the Libya and Iraq people.

[00:58:10] Speaker 04:
And if you look at the lack of mandatory language, that's what's really the crucial part.

[00:58:16] Speaker 04:
Because if it had said only, there would be a prohibition.

[00:58:19] Speaker 04:
But instead, unlike every statute of limitations I've seen, which create a bar, this is a permission that operates against the background prohibitory statutes of limitations that are found elsewhere, state law.

[00:58:34] Speaker 04:
or 28 U.S.C.

[00:58:36] Speaker 04:
1658.

[00:58:38] Speaker 04:
That's the proposition.

[00:58:39] Speaker 04:
It is certainly in the briefs.

[00:58:41] Speaker 04:
Did I explain it better today?

[00:58:43] Speaker 04:
I always try to explain things differently than we have it in the briefs.

[00:58:50] Speaker 04:
Thank you, Council.

[00:58:58] Speaker 01:
Thank you, Your Honor.

[00:58:59] Speaker 01:
May it please the Court?

[00:59:00] Speaker 01:
Erica Hashimoto is Court Appointed Omicus on the 60-day limitations provision.

[00:59:06] Speaker 01:
Section 1083C3 is most plausibly read to explain how the related action provision in section 1605A, B, what the content of that related action is.

[00:59:20] Speaker 01:
and what constitutes a related action.

[00:59:22] Speaker 01:
As a result, the 60 day limitations period applies to all cases filed as related to an earlier action filed under section 1605A7, the predecessor statute.

[00:59:39] Speaker 01:
The cross-reference in the provision that addresses the

[00:59:44] Speaker 01:
states that have been removed from the state-sponsored terrorism list, which is what I understand Mr. Elgarten to have been arguing.

[00:59:54] Speaker 01:
That cross-reference is necessary in that particular subsection because that section is not about statute of limitations at all.

[01:00:03] Speaker 01:
1605 AB did not need a cross-reference because it uses the term related action and then needs to explain

[01:00:14] Speaker 01:
in the note what a related action is.

[01:00:18] Speaker 01:
As Mr. Hellegarten responded to your question, he said that once a case has been filed as an original action, unless under 1605A7, unless a state is removed from the state sponsor list, there is no statute of limitations at all.

[01:00:38] Speaker 01:
It completely eliminates the statute of limitations.

[01:00:41] Speaker 01:
Had Congress intended to do that,

[01:00:44] Speaker 01:
it would have been more clear in doing so.

[01:00:47] Speaker 08:
So can I ask you this?

[01:00:48] Speaker 08:
So there is that, which one might suppose is somewhat odd that there's not a statute of limitations at all within the compass of cases to which that would apply, which is not an expansive one, but it's a real one.

[01:01:02] Speaker 08:
But then under your interpretation, there's a different issue, which some might say is odd, which is that

[01:01:08] Speaker 08:
Even for new plaintiffs who, to that point, couldn't bring an action, so the statutes intended to expand the field of plaintiffs, including, say, service members or others who weren't within the class of plaintiffs who could bring an action before, they only have 60 days from the date of enactment of the act to bring their action.

[01:01:29] Speaker 01:
or 60 days from the entry of judgment in a related action that was filed under section 1605A7.

[01:01:36] Speaker 08:
Right, but for a 60, yes, but for a case that's been done.

[01:01:43] Speaker 01:
That's correct.

[01:01:44] Speaker 08:
For a case that's done, you only have 60 days.

[01:01:46] Speaker 01:
That's correct, and it is.

[01:01:47] Speaker 08:
That seems like, that does not seem like much time for an effort by Congress to intentionally expand the field of individuals that can bring a claim.

[01:01:57] Speaker 08:
even as to actions that are done, and to say, hey, you were part of the same terrorist incident that gave rise to a right to recovery.

[01:02:03] Speaker 08:
We now realize that you also should have an ability to bring a claim based on that incident, based on your own injuries.

[01:02:12] Speaker 08:
And by the way, you've got two months to do it from the date of enactment.

[01:02:15] Speaker 08:
And if you don't do it, then you're done.

[01:02:16] Speaker 01:
It does seem like a very short provision.

[01:02:20] Speaker 01:
I think Congress was trying to transition from because they're

[01:02:26] Speaker 01:
probably likely going to be terrorist incidents moving forward.

[01:02:30] Speaker 01:
And so those plaintiffs will have the 10 years from whenever the cause of action arose.

[01:02:35] Speaker 01:
For the very old 1983, 1984 cases, the 60-day window feels short, but there's also equitable tolling that may apply.

[01:02:46] Speaker 01:
And so even- I thought the statute actually eliminated the equitable toll, the reference to equitable tolling.

[01:02:52] Speaker 01:
The statute eliminated the specific reference to equitable tolling that had been in the predecessor statute, and that was because Congress put in the April 24, 1996 alternative trigger for the statute of limitations.

[01:03:06] Speaker 01:
But in general, the plaintiffs are correct that equitable tolling, unless Congress expresses an intent to have that not apply, generally does apply.

[01:03:21] Speaker 01:
From this statute, it appears that equitable tolling still would apply.

[01:03:26] Speaker 01:
And so if, for instance, a plaintiff had a reason that they could not make it in within that 60 days, then that would be subject to equitable tolling.

[01:03:37] Speaker 03:
It's very odd.

[01:03:38] Speaker 03:
Because not only are these people who Congress is reaching out to include within the coverage of this terrorism exemption, the class of people who are now being included are non-U.S.

[01:03:51] Speaker 03:
nationals.

[01:03:52] Speaker 03:
So we're giving a 60-day time period for people who live all over the world, and many of them may be sort of lower-level workers, people who did service work, security work, you know, cafeteria work in these buildings that were blown up.

[01:04:07] Speaker 03:
And it does seem like, where the regular statute of limitations is 10 years, to have 60 days

[01:04:14] Speaker 01:
Does feel very short, yes.

[01:04:17] Speaker 01:
And there's no, unfortunately, explanation from Congress about why 60 days.

[01:04:24] Speaker 01:
So say more, why not Mr. Elgarten's description?

[01:04:27] Speaker 01:
Why not his theory about it?

[01:04:29] Speaker 01:
For two reasons, I think, Your Honor.

[01:04:30] Speaker 01:
The first is that, as I mentioned earlier, that would completely eliminate the statute of limitations altogether any time a previous action had been timely filed under Section 1605A7.

[01:04:44] Speaker 01:
50 years from now, a family member could come in and say, my relative was injured and.

[01:04:51] Speaker 03:
Although we have a finite class of people, there are X number of people who worked in the building, who were injured, should the, is it plausible that Congress's intention was, we want all of them to have relief.

[01:05:07] Speaker 03:
Some of them may come in later, the likelihood's gonna be declining,

[01:05:11] Speaker 03:
But, sure.

[01:05:15] Speaker 01:
It is plausible, but the other factor is that there's no explanation in 1605 AB of what a related action is.

[01:05:26] Speaker 01:
The definition of related action on which the plaintiffs rely, which is a case arising out of the same terrorist incident, comes from the note.

[01:05:40] Speaker 01:
There's no other explanation of what Congress meant by related action unless you read section 1083C3 in conjunction with 1605AB.

[01:05:51] Speaker 01:
And once you read section 1605 AB in conjunction with 1083C3, that 60-day limitation period is part of 1083C3.

[01:06:04] Speaker 01:
And so in plaintiff's briefs, they rely very heavily on the definition or the explanation of what a related action is in 1083C3.

[01:06:16] Speaker 01:
Without that, they have no way of

[01:06:19] Speaker 01:
Congress didn't say what it meant by related action.

[01:06:22] Speaker 08:
And so I think the more plausible view is that Congress put the related action provision in section 1605 AB to explain the... You could still have a regime in which, even if the provisions aren't linked in the way that you say they are, and they're linked in the way the plaintiffs say they are, that the related action understanding from the one informs the way you would understand related action in the other.

[01:06:48] Speaker 08:
that could still work.

[01:06:49] Speaker 08:
So you wouldn't necessarily need it to do a definition.

[01:06:53] Speaker 08:
You would just say, there are two different contexts in which related action arises.

[01:06:57] Speaker 08:
One of them we gave some elaboration of what it means, and the other one we didn't.

[01:07:00] Speaker 08:
But you ought to look to the second one, since they came up in the context of the same statute.

[01:07:04] Speaker 07:
Especially if you've got subsets.

[01:07:07] Speaker 07:
You're assuming the same set.

[01:07:08] Speaker 07:
You can have related action with respect to a different subset that would be different.

[01:07:13] Speaker 07:
I mean, that's the way the statute appears to read.

[01:07:16] Speaker 07:
You're assuming related action applies across the board and that aren't subsets.

[01:07:23] Speaker 07:
It seems to me the new statute, it's a transitional provision that really is thinking about a subset of cases, and it looks to be beneficial, not restrictive.

[01:07:34] Speaker 07:
I mean, I'm perplexed, too, by the argument from the district court that this is going to restrict potential sentence.

[01:07:41] Speaker 07:
That makes no sense in light of congressional purpose.

[01:07:44] Speaker 01:
I don't disagree that this is a transitional provision.

[01:07:47] Speaker 01:
I think that's right.

[01:07:48] Speaker 01:
I think what it was intended to do, though, was to transition the plaintiffs who did not have a right of action before the NDAA was passed, the non-citizen government employees and military members, and to provide them with a very narrow window within which they could file their claim as

[01:08:14] Speaker 01:
a related action.

[01:08:15] Speaker 01:
I don't read it to give all of these or anybody else a broad right to eliminate the statute of limitations altogether just because an earlier case was timely filed under section 1605A7.

[01:08:36] Speaker 01:
Unless there are any further questions, thank you very much.

[01:08:45] Speaker 04:
That would be brief, I hope.

[01:08:47] Speaker 04:
Every other part of this transitional section expands the rights.

[01:08:52] Speaker 04:
It expands the rights of people to bring actions, including those who are pending, allows cases, takes away, raise judicata.

[01:09:01] Speaker 04:
That's what all of these sections do.

[01:09:04] Speaker 04:
There's no definitional provision in here.

[01:09:06] Speaker 04:
But there would be a further irony here, where we have Congress has expanded the rights and desire to create a cause of action

[01:09:14] Speaker 04:
and desired to take away the statute of limitations.

[01:09:17] Speaker 04:
The prior statute of limitations with its equitable tolling provision as construed by this court and Simon had applied, these folks would have had 10 years to bring an action because immunity was not lifted for until 2008.

[01:09:33] Speaker 04:
And they would have had 10 years.

[01:09:36] Speaker 04:
Their reading is

[01:09:38] Speaker 04:
They now have either 60 days or, if it only applies to pending cases, no time at all to bring an action.

[01:09:44] Speaker 04:
So if Congress was supposedly expanding the statute of limitations, why would it take away the 10 years that they would have had and substitute either 60 days or, if it only applies to pending cases, zero?

[01:09:58] Speaker 03:
You're speaking loosely that they would have had 10 years.

[01:10:01] Speaker 03:
I mean, they would have needed legislation comparable to the original exception.

[01:10:05] Speaker 04:
Yes, but if they had left the prior statute of limitations in place, that's correct.

[01:10:11] Speaker 03:
And said, we're applying that to the new enactment date.

[01:10:14] Speaker 04:
Yes, if they had not substituted one.

[01:10:17] Speaker 04:
But we all know that they were victim-oriented.

[01:10:20] Speaker 04:
This was for victims, so that makes no sense in addition.

[01:10:23] Speaker 08:
Can I ask one question, which is,

[01:10:27] Speaker 08:
If for a 1605A action that only arises in the future, suppose regrettably there's a terrorist incident in the future that gives rise to an action, then under your reading, under anyone's reading I think,

[01:10:44] Speaker 08:
this transitional notion is out of the picture because it's not a 1605A7 action.

[01:10:49] Speaker 08:
By definition, it's only a 1605A action.

[01:10:53] Speaker 04:
Yes, it must have previously been filed as a 1605A7 action, so this is not prospective.

[01:10:58] Speaker 08:
So let's take that out of play.

[01:10:59] Speaker 08:
Then let's imagine a situation in which there's a future 1605A action.

[01:11:05] Speaker 08:
Yes.

[01:11:05] Speaker 08:
As to that,

[01:11:07] Speaker 08:
There's a statute of limitations embedded in the statute.

[01:11:11] Speaker 04:
Yes, 1605A.

[01:11:12] Speaker 08:
And a related action for that would be subject to the... Can't come into play.

[01:11:18] Speaker 04:
The related action provision is only related to previously filed actions under 1605A7.

[01:11:24] Speaker 04:
And we'll have no further thing, no further result.

[01:11:27] Speaker 04:
Congress was victim-oriented here and used the note not to create a trap door after granting a right under 1605A.

[01:11:36] Speaker 04:
The note doesn't create a trap door.

[01:11:37] Speaker 04:
Aha, we gave you the right in 1605A.

[01:11:40] Speaker 04:
And we're taking it away in the note.

[01:11:42] Speaker 04:
Congress did exactly the opposite.

[01:11:45] Speaker 04:
It used the note, the transitional section, as it frequently does, to mitigate the effects of certain of these new harsh provisions of the statute on the rights of people who had relied on a prior version.

[01:12:00] Speaker 03:
So there's a 10-year statute of limitations for this future case.

[01:12:04] Speaker 03:
And once the first plaintiff sues about that incident,

[01:12:10] Speaker 03:
everybody else can come in whenever.

[01:12:13] Speaker 03:
That's the theory, right?

[01:12:14] Speaker 04:
Not in the future.

[01:12:15] Speaker 03:
Yes.

[01:12:16] Speaker 03:
Not in the future.

[01:12:17] Speaker 03:
I thought that's your reading of 1605A, because

[01:12:21] Speaker 03:
an action may be brought if it's commenced or a related action was commenced or a related action under 1605.

[01:12:29] Speaker 03:
So wait, there's no related actions in the future?

[01:12:31] Speaker 08:
That's exactly right.

[01:12:34] Speaker 08:
That's exactly right.

[01:12:36] Speaker 08:
And what's the explanation for that, that there's a related action?

[01:12:39] Speaker 04:
Because they're giving you the 10-year statute of limitations, and on a prospective basis, there's no injury to mitigate.

[01:12:48] Speaker 04:
Congress created this related action provision because

[01:12:51] Speaker 04:
This court, for good reason, had issued a number of narrowing rulings under the prior statute, both going to the statute of limitations reversed in the Simon case and in other ways.

[01:13:05] Speaker 04:
And it said, look, a lot of people didn't bring their actions because we wrote a bad statute.

[01:13:10] Speaker 04:
I'm going to give you a chance to join the people who filed before, but only if they filed before.

[01:13:17] Speaker 04:
It's a very narrow group of people

[01:13:19] Speaker 04:
who were injured side by side with the people who had broad actions before.

[01:13:24] Speaker 04:
And that's what these exceptions refer to.

[01:13:27] Speaker 08:
But on a going forward basis, anybody who's injured side by side is still subject to the same statute of limitations.

[01:13:32] Speaker 03:
Because they all clearly have the claim.

[01:13:34] Speaker 03:
So it's just saying, now that you're all in, now that we've waived sovereignty, now that we've done it clearly, you're all in, and you're all limited by 10 years.

[01:13:40] Speaker 04:
And we all start afresh.

[01:13:42] Speaker 04:
We fixed the problem from the past.

[01:13:44] Speaker 04:
We're going to start afresh now.

[01:13:46] Speaker 04:
I see my time is up.

[01:13:48] Speaker 08:
Thank you.

[01:13:51] Speaker 08:
We'll move on to the third set of issues.

[01:13:54] Speaker 05:
Thank you once again, Your Honors.

[01:13:55] Speaker 05:
Derek Schaeffer, to argue the remaining reasons why we respectfully submit that the claims in question were timely, let me start with what I think is common ground.

[01:14:04] Speaker 05:
And I would submit, if Your Honors don't take the first two grounds for reversal that have been offered by our side, here's what I think is the easiest remaining one.

[01:14:12] Speaker 05:
And it really is equitable tolling.

[01:14:15] Speaker 05:
And let me start, Your Honors, with the very clear presumption that when Congress enacts the statute of limitations and says nothing more, equitable tolling applies.

[01:14:25] Speaker 05:
The Supreme Court has held that in the Irwin case.

[01:14:28] Speaker 05:
This court has followed that teaching in, among other cases, Menominee Indian Tribe of Wisconsin versus the United States.

[01:14:34] Speaker 05:
You can find it at 614 F 3rd.

[01:14:37] Speaker 05:
And I would direct 519.

[01:14:38] Speaker 05:
I would direct Your Honor's to pages 529 and 530.

[01:14:41] Speaker 05:
And what the court basically said, following what this court said, following the Supreme Court's teachings, is even if there are some suggestions, some negative implications,

[01:14:50] Speaker 05:
that equitable tolling might not apply, it is a very strong presumption that it does.

[01:14:56] Speaker 05:
Not irrevocable, but Congress has to be explicit that there's not to be equitable tolling.

[01:15:01] Speaker 08:
So is this the argument that wasn't raised until the 1590 E-Motion?

[01:15:06] Speaker 05:
No, Your Honor.

[01:15:07] Speaker 08:
That'll come last.

[01:15:08] Speaker 05:
But this is as to all of the foreign nationals.

[01:15:11] Speaker 05:
Oh, this is not limited to King.

[01:15:12] Speaker 05:
All of the foreign nationals would benefit from this Judgment of Austin, because prior to 1605, capital A,

[01:15:19] Speaker 05:
They didn't have a cause of action.

[01:15:21] Speaker 05:
To the extent they had a cause of action, there was foreign sovereign immunity that would have effectively posed an insuperable bar to them prevailing against the state sponsor of terror.

[01:15:32] Speaker 05:
That's clear.

[01:15:32] Speaker 05:
And that was clear in 1605A, in 1605F, combined with relevant provisions of 1605A, which basically said, a court shall decline to here

[01:15:43] Speaker 05:
any suit that was bought by a foreign national, even if they were serving for the United States, and even if they otherwise had a cause of action.

[01:15:49] Speaker 05:
So in that circumstance, where the claim literally could not be successfully brought, it's a classic instance for equitable tolling.

[01:15:57] Speaker 05:
And the presumption from the U.S.

[01:15:58] Speaker 05:
Supreme Court and from this court are very clear that when you look at a statute like 1605 capital A, you read equitable tolling into it.

[01:16:06] Speaker 05:
It only makes sense for the reason you were indicating jet-filler.

[01:16:09] Speaker 05:
And I note that although 1605F previously had explicitly provided for equitable tolling, that meant Congress essentially was not relying upon the presumption.

[01:16:23] Speaker 05:
What Congress did was struck that entire statute.

[01:16:26] Speaker 05:
It started afresh with 1605A.

[01:16:28] Speaker 05:
So it offered statutory silence from Congress as to equitable tolling.

[01:16:34] Speaker 05:
clearly falls right within the teeth.

[01:16:36] Speaker 03:
Had the equitable tolling, the presence of that explicit equitable tolling caused any problems, any expressio unius for other background doctrines or anything?

[01:16:44] Speaker 05:
I don't see how it could because the whole statute, the whole predecessor statute went away.

[01:16:49] Speaker 03:
No, no, but had it.

[01:16:50] Speaker 03:
I'm just trying to think why Congress would have had it.

[01:16:53] Speaker 03:
We'll clean that one up if they really wanted to carry it over.

[01:16:56] Speaker 05:
Well, perhaps they weren't thinking about it at all because the courts have been so clear that if Congress doesn't do anything more, it's naturally understood to incorporate the common law surrounding statutes of limitations and all exceptions to it.

[01:17:10] Speaker 05:
That's true, Judge Pollard.

[01:17:11] Speaker 05:
Even to take the Mino-Mini tribe instance, there the statute explicitly exempted claims for fraud.

[01:17:17] Speaker 05:
Those were not subject to the statute of limitations.

[01:17:19] Speaker 05:
So the argument came, the implication is,

[01:17:22] Speaker 05:
Equitable tolling implicitly does not apply there.

[01:17:24] Speaker 05:
And this court rejected that, saying that's not how the presumption works.

[01:17:29] Speaker 05:
And the Supreme Court in the Irwin case has specifically said, look, there may be nuances of language that differentiate different statute of limitations.

[01:17:37] Speaker 05:
Sometimes they'll be clearer.

[01:17:38] Speaker 05:
They'll be more mandatory.

[01:17:39] Speaker 05:
And the Supreme Court said, we're getting rid of all that, that parsing.

[01:17:43] Speaker 05:
We're just going to presume across the board that equitable tolling applies unless Congress tells us not to.

[01:17:48] Speaker 05:
I think it's telling that the amicus recognizes

[01:17:51] Speaker 05:
that this is an instance where, assuming that they disagree with us as to the argument you just heard from Mr. Elgarten, that, of course, equitable tolling has obtained here.

[01:18:03] Speaker 05:
And a prototypical instance for equitable tolling is where the defendant was immune up until the time that 1605 A was enacted.

[01:18:12] Speaker 05:
That's when the clock starts.

[01:18:14] Speaker 05:
That's how equitable tolling works.

[01:18:16] Speaker 05:
according to the recent instruction from the Supreme Court in the Artis case, decided last term, a case against DC, in fact, where the Supreme Court analyzed traditional equitable tolling and said, the clock starts when you first have a claim.

[01:18:29] Speaker 05:
And it follows from that that the enactment of 1605A in 2008 began the tenure clock.

[01:18:36] Speaker 05:
If there was any doubt about that, and I don't think that there is under canons of construction and settled law,

[01:18:41] Speaker 05:
Senator Lautenberg, the proponent of the statute, made clear that that was going to be a 10-year statute of limitations going forward for this whole category of plaintiffs, the foreign nationals, who previously had not been able to sue.

[01:18:54] Speaker 05:
You can get there by saying the cause of action doesn't arise until 1605A is enacted, or you can get there through equitable tolling.

[01:19:01] Speaker 05:
But one way or another, we respectfully submit, that is the correct conclusion, that there were 10 years following the enactment of 1605A to bring these claims, and that makes all the claims essentially timely.

[01:19:13] Speaker 03:
We're presenting it a little differently from, I think, how it was presented in your brief, which says that the cause of action arose as of 2008.

[01:19:24] Speaker 07:
We read the briefs.

[01:19:27] Speaker 05:
If you read the briefs, Judge Edwards, you have to read all the way through.

[01:19:30] Speaker 05:
But I swear, the one argument comes after the other.

[01:19:33] Speaker 05:
We make both arguments.

[01:19:34] Speaker 05:
We flip in the order, I think.

[01:19:36] Speaker 05:
Because I've come to the conclusion, Judge Edwards, I think this is the easier way to decide the case.

[01:19:41] Speaker 05:
And I think the amicus recognizes that, too.

[01:19:43] Speaker 05:
We argue that equitable tolling applies.

[01:19:46] Speaker 08:
And we argue that the other way to put it is the other way is harder for you.

[01:19:50] Speaker 05:
Fair enough.

[01:19:52] Speaker 05:
I think it follows.

[01:19:54] Speaker 05:
You could also get there under the prior 1605F.

[01:19:57] Speaker 05:
That's one other point, Judge Pillard.

[01:19:58] Speaker 05:
For 1605F, as it had existed prior to the enactment of 1605A in 2008, there's no question that it provided, as you know, for equitable tolling.

[01:20:08] Speaker 05:
And if you read how 1605A works, it is providing a cause of action.

[01:20:14] Speaker 05:
It is providing rules that govern a cause of action for anyone wronged by a state sponsored terror.

[01:20:19] Speaker 05:
That encompasses foreign nationals.

[01:20:23] Speaker 05:
A, says something else, which is a court shall decline to hear the claims from that category of people.

[01:20:29] Speaker 03:
Do you even cite Menominee?

[01:20:30] Speaker 03:
I'm sorry.

[01:20:30] Speaker 03:
I'm just distracted.

[01:20:31] Speaker 03:
No, we didn't.

[01:20:32] Speaker 03:
No, we did not.

[01:20:32] Speaker 03:
I'm just distracted by trying to find this argument in your case.

[01:20:34] Speaker 03:
Sorry.

[01:20:34] Speaker 05:
We cite Erwin.

[01:20:35] Speaker 05:
We cite Erwin.

[01:20:36] Speaker 05:
And I think we cite it with an asterisk, because this court provides for it.

[01:20:39] Speaker 05:
But Erwin is the seminal Supreme Court case.

[01:20:42] Speaker 05:
I was signing Menominee for the reason that was reflected narcologally.

[01:20:46] Speaker 05:
I think it shows just how strongly the presumption is applied by this court, I think correctly, following from Erwin.

[01:20:53] Speaker 05:
And I also heard from the amicus the recognition that equitable tolling does apply under 1605A.

[01:21:00] Speaker 05:
I think that that concession is correct, and I think it is dispositive for the reason I was saying.

[01:21:06] Speaker 05:
It is, as night follows day, you get equitable tolling as a plaintiff who could not possibly have sued because the defendant was immune.

[01:21:15] Speaker 05:
And the 10-year clock starts then in 2008, just as I think Congress envisioned.

[01:21:20] Speaker 05:
If I may make two more points as my time grows short here.

[01:21:25] Speaker 05:
One, we think Owens is a related action.

[01:21:28] Speaker 05:
And there's no question that both the shake and the quinoa suits were filed within 60 days of the final judgment in Owens.

[01:21:36] Speaker 05:
The only way that Judge Bates got to the opposite conclusion was by saying there are different claims in the Owens case.

[01:21:43] Speaker 05:
And the claims of the interveners that were subject to a separate judgment, those should be essentially parsed out as not having been brought under the prior 1605A.

[01:21:52] Speaker 05:
And that is unsupported by any authority that any party has been able to cite.

[01:21:58] Speaker 05:
That sort of parsing of an action, a singular action, to say that there are different claims

[01:22:03] Speaker 05:
that are the touchstones.

[01:22:05] Speaker 05:
And Congress specifically used the word related action.

[01:22:08] Speaker 05:
Didn't say related claims.

[01:22:09] Speaker 05:
And once the action is the touchstone, I think it follows from settled law that these plaintiffs are on the correct side of that.

[01:22:20] Speaker 05:
Because the final judgment in Owens, undisputedly, was within 60 days of the date when those two suits were filed.

[01:22:27] Speaker 05:
And if your honors were to disagree with all of that, and I had nothing else left, I would offer to you the respectful submission that in these extraordinary circumstances, where a statute of limitations is being raised, sua sponte, on behalf of a state sponsor of terror that's not even appearing before the court, the quinoa plaintiffs at least deserve to be heard on the merits, this is what your honor was asking about, as to their specific special facts that explain why they filed suit when they did.

[01:22:56] Speaker 05:
There are uncontradicted affidavits that they had an understanding that they were participants in an action that was filed and resulted in a successful recovery.

[01:23:07] Speaker 05:
And unbeknownst to them, as they reside in Kenya, they had been omitted inexplicably as plaintiffs from that action, contrary to the understanding they had from their mother, their close family member, whom they had been relying upon.

[01:23:19] Speaker 05:
In those circumstances, we submit they should have been heard from on the merits.

[01:23:22] Speaker 05:
And I could explain to your honors why procedurally, I think,

[01:23:25] Speaker 05:
they arrived at the place that they did where the argument had not been raised until after Judge Bates had entered the judgment he had on behalf of Irina.

[01:23:37] Speaker 08:
Thank you, counsel.

[01:23:38] Speaker 08:
Thank you.

[01:23:46] Speaker 01:
Thank you.

[01:23:46] Speaker 01:
May it please the court.

[01:23:47] Speaker 01:
Erica Hashimoto.

[01:23:52] Speaker 01:
As the court did, I think I read the argument of the plaintiffs both below and in their opening brief to be that the cause of action arose only when

[01:24:05] Speaker 01:
They gained the right to sue, that Congress intended the words cause of action arose to mean that that's when their claims were.

[01:24:14] Speaker 01:
As I now understand their argument, they are arguing that they were entitled as a matter of law to equitable tolling

[01:24:22] Speaker 01:
during the period when they did not have a right to sue.

[01:24:26] Speaker 01:
I don't disagree that a district court could have equitably told the statute of limitations for the period when plaintiffs did not have a right to sue, but none of the plaintiffs raised that before Judge Bates, and so I think bringing it out in the reply brief is a little bit late for that.

[01:24:52] Speaker 03:
As to, if it were before us, you don't have any reason to think that it wouldn't succeed.

[01:25:02] Speaker 03:
I mean, I guess I'm just, I hear your arguments about how it may not have been preserved, or it might be something that needs more factual record.

[01:25:13] Speaker 01:
I think because equitable tolling in general is a factual determination, I think

[01:25:20] Speaker 01:
In the first instance, the district court would have to make that determination and get the record and understand from the plaintiffs all of their arguments that the statute of limitations was equitably told until January 28, 2008 when Congress passed the NDAA.

[01:25:44] Speaker 07:
when a party fails to raise an argument in a timely way, it's forfeited, right?

[01:25:49] Speaker 01:
It is forfeited, Your Honor.

[01:25:50] Speaker 01:
That is a true statement.

[01:25:52] Speaker 07:
No exceptions.

[01:25:53] Speaker 07:
Gone, right?

[01:25:54] Speaker 01:
But it is not waived.

[01:25:55] Speaker 07:
Gone.

[01:25:55] Speaker 07:
We leave it to the parties, right?

[01:25:57] Speaker 01:
It is not waived, Your Honor.

[01:25:59] Speaker 01:
So they could raise it if this Court believes that it needs further factual development.

[01:26:06] Speaker 07:
It's packing off a little bit.

[01:26:09] Speaker 01:
It is forfeited, definitely.

[01:26:11] Speaker 01:
And as to the Aliganga issue, I do think that the Sheikh and Kinwa plaintiffs have the strongest argument that their claims were timely.

[01:26:23] Speaker 01:
And going back to what the district court should... Because of Owens?

[01:26:29] Speaker 01:
Because of Owens, that's correct.

[01:26:32] Speaker 01:
And there's no case law on this because the related action provision is not an ordinary provision for statute of limitations.

[01:26:41] Speaker 01:
And so whether an intervener's action constitutes

[01:26:46] Speaker 01:
a related action for purposes of this statute is just entirely unclear.

[01:26:51] Speaker 03:
And it just seems, I mean, once you're an intervener, you are a party under the federal rules.

[01:26:57] Speaker 03:
So I appreciate that you have an uphill battle.

[01:27:00] Speaker 03:
Your best shot on that is just this is a very sui generis situation.

[01:27:05] Speaker 03:
The district judge who was managing the litigation side really is too, and therefore we take his judgment on that.

[01:27:12] Speaker 01:
Yes, I think that's right.

[01:27:14] Speaker 01:
And the one other thing is that because of the way this statute is written, the related action has to have been filed under 1605 little a seven.

[01:27:29] Speaker 01:
And although the Owens complaint was filed under 1605 a seven, by the time the Aligonga plaintiffs intervened,

[01:27:39] Speaker 01:
1605A7 no longer existed.

[01:27:43] Speaker 03:
But the Aliganga plaintiffs intervened in the pending action, which was an action under A7, so they were able successfully to join an action under A7, and that's the action.

[01:27:54] Speaker 01:
That's right, but their intervener complaint that they filed was filed under 1605A, the new statute, rather than under 1605A7.

[01:28:05] Speaker 01:
Again, I think this is the

[01:28:09] Speaker 01:
I think the district court could have come out either way on this.

[01:28:14] Speaker 01:
And as I mentioned, I think this is probably something that the district court could consider if it has the authority to consider statute of limitations, sua sponte.

[01:28:24] Speaker 01:
How clear is it that the actions were untimely?

[01:28:30] Speaker 01:
And because the Sheik and Quinoa plaintiffs have the best argument that their claims were timely filed, it

[01:28:38] Speaker 01:
it very likely that they probably do need a remand if this court concludes that the district court has the authority to raise the statute of limitations to respond to consider both equitable tolling and the fact that their claims really were much closer than any of the others.

[01:29:01] Speaker 01:
If the court has no further questions, we'd ask the court to affirm.

[01:29:04] Speaker 01:
Thank you.

[01:29:05] Speaker 08:
Thank you, counsel.

[01:29:06] Speaker 05:
I mean, just address procedure for the court, just that.

[01:29:12] Speaker 05:
Let me start with Judge Bates' decisions and questions.

[01:29:15] Speaker 05:
If you look at pages 61 to 62 of the appendix, Judge Bates, in ruling that the claims were untimely as to Sudan, specifically stated his judgment that they were never told.

[01:29:28] Speaker 05:
And you can find that on the carryover from pages 61 to 62 of the appendix.

[01:29:32] Speaker 05:
And in doing that, you may recall, he was quite emphatic on page 66

[01:29:37] Speaker 05:
of the appendix in saying that although there was to be supplemental briefing, it was limited to the question whether Iran was equally entitled to the statute of limitations defense that he had already held was resulting in a judgment for Sudan to take his language.

[01:29:53] Speaker 05:
They may not use the opportunity to relitigate the court's interpretation of section 1605A-B

[01:30:00] Speaker 05:
governing timeliness, but rather only to argue that the court's decision to dismiss the claims against Sudan should not lead it to likewise dismiss the claims against Iran.

[01:30:10] Speaker 05:
Given that treatment and the emphatic instruction that was there, I think it would be begrudging to say that we failed to raise the equitable tolling argument adequately for his consideration.

[01:30:21] Speaker 05:
He had effectively rejected the notion that there could be any equitable tolling.

[01:30:25] Speaker 05:
So before this court, in arguing for reversal in our opening brief,

[01:30:29] Speaker 05:
We did rely upon equitable tolling.

[01:30:32] Speaker 05:
You can find it in pages 48, 49 of the Shake brief.

[01:30:36] Speaker 05:
And we did it by citing 1605F, saying that that as the provision that had been in place up until the enactment of 1605A dictated traditional equitable tolling, which would meant that the 10-year clock didn't begin until 2008.

[01:30:51] Speaker 05:
The amicus has rejoinder to that.

[01:30:54] Speaker 05:
In their responsive brief was to say, well, 1605F

[01:30:58] Speaker 05:
didn't apply to non-US nationals.

[01:31:01] Speaker 05:
And that's where, Judge Pillard, we cite the Irwin case to say, even the new 1605A incorporates equitable tolling as to the new category of plaintiffs it's opening the doors to.

[01:31:14] Speaker 05:
And my other respectful submission that I admit was not in our reply, but I think is partly parcel of that, is if you can reach the same result under prior 1605F, because if you read the relevant sub-provisions of 1605, the predecessor statute, it was clear that the cause of action and the rules of counting and the equitable tolling

[01:31:34] Speaker 05:
those apply to any state sponsor of terror and any action that they may take that may result in claims, it simply rules out the foreign national by saying a court shall decline to here.

[01:31:46] Speaker 05:
So I think there's equitable tolling both ways.

[01:31:48] Speaker 03:
You're pointing me to a 61 to 62 as addressing a tolling argument.

[01:31:56] Speaker 03:
What I see there is addressing an argument that the claims arose when

[01:32:04] Speaker 03:
The act was passed and rejecting that, no?

[01:32:09] Speaker 05:
Well, I think it's the line where he says, and was never told thereafter.

[01:32:12] Speaker 05:
And the reason that he's reaching that conclusion, as I understood Judge Bates's decision, is really the point that you were making just now.

[01:32:19] Speaker 05:
Before that, on page 61, there is no second sentence in section 1605 AB

[01:32:25] Speaker 05:
tolling the clock during the period of immunity.

[01:32:28] Speaker 05:
So he was rejecting the notion as a matter of law, and I think the amicus acknowledges this, that equitable tolling could apply.

[01:32:35] Speaker 05:
We respectfully challenge that on this appeal.

[01:32:38] Speaker 05:
We say equitable tolling must apply under subtle presumptions and also under the prior language of 1605f.

[01:32:45] Speaker 05:
which I think does the same rules apply, the same equitable tolling to that point applies to the claims by foreign nationals, albeit their claims were due to be declined to be heard by a district court.

[01:32:57] Speaker 05:
That's the relevant language.

[01:32:58] Speaker 05:
So I think that there is common ground that equitable tolling does apply here.

[01:33:02] Speaker 05:
And my only respectful disagreement with the amicus is I don't see any occasion for a remand, because once equitable tolling applies, it applies as a matter of law for foreign nationals

[01:33:12] Speaker 05:
who could not possibly have successfully sued the foreign sovereign up until 1605A was enacted in 2008.

[01:33:21] Speaker 05:
I think that that dictates essentially a reversal and a judgment in favor of the relevant outcomes.

[01:33:28] Speaker 05:
Thank you, Your Honors.

[01:33:29] Speaker 08:
Thank you, Councils.

[01:33:30] Speaker 08:
Thank you, Councils.

[01:33:31] Speaker 08:
The case is submitted.

[01:33:32] Speaker 08:
Ms.

[01:33:32] Speaker 08:
Hashimoto and Ms.

[01:33:33] Speaker 08:
Coburn, you were appointed by the Court to support the District Court's judgments.

[01:33:37] Speaker 08:
And the Court thanks you and your teams for your able assistance in these matters.

[01:33:42] Speaker 08:
Thank you.