[00:00:02] Speaker 03: Case number 19-7129, Renat Akhmetshin Appellant versus William Browder. [00:00:09] Speaker 03: Mr. Tremonti for the appellant, Mr. Gottlieb for the appellee. [00:00:17] Speaker 03: Good morning. [00:00:19] Speaker 03: Good morning. [00:00:22] Speaker 03: May it please the court, Michael Tremonti for appellant. [00:00:28] Speaker 03: Several decades ago, the defendant in this case renounced US citizenship. [00:00:36] Speaker 03: In doing so, he freed himself of his obligations to the national community here, and he forfeited the protections of the First Amendment Petition Clause, which ensures the right of, quote, the people to petition the government for a redress of grievances. [00:00:56] Speaker 03: The Supreme Court in United States versus Verdugo or Quidez, 1990 decision, examined the definition of the phrase the people in the First Amendment and concluded that quote, the people refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. [00:01:24] Speaker 03: By renouncing his membership in the national community and intentionally severing his connection with the United States, Mr. Browder took himself out of that definition. [00:01:36] Speaker 02: The government contacts... Mr. Councilor, your argument assumes that the only basis for the government contact exception under DC law is the First Amendment, but there's some question about that, isn't there? [00:01:54] Speaker 02: There's some question about that. [00:01:57] Speaker 02: In environmental research, the on-bank case, DC on-bank case, they gave two reasons for the justification for this section. [00:02:08] Speaker 02: Only one was First Amendment. [00:02:10] Speaker 02: The other was to avoid making DC a national forum for litigation of this kind. [00:02:17] Speaker 02: It's true, in a later case, the court [00:02:20] Speaker 02: said it was First Amendment. [00:02:22] Speaker 02: But there seems to be some serious debate about whether a panel of the DC Court of Appeals can, in fact, narrow a rule like that, which is why we asked you to consider this question of certification. [00:02:39] Speaker 02: I mean, how can we decide that question? [00:02:41] Speaker 02: How can this court decide that issue? [00:02:44] Speaker 02: It's a very important question. [00:02:46] Speaker 03: Your Honor. [00:02:47] Speaker 03: DC law. [00:02:50] Speaker 03: Your Honor, we agree that it's an important question. [00:02:53] Speaker 03: And we believe that it's a question that may properly be certified to the District of Columbia Court of Appeals, specifically the question whether or not the government context exception applies to exclude from the jurisdictional calculus contacts with the district by defendants who are not entitled to the protections of the First Amendment. [00:03:14] Speaker 03: But we agree. [00:03:14] Speaker 02: But you're OK with that. [00:03:16] Speaker 02: You're okay with certifying that if we decide to do that. [00:03:20] Speaker 00: That's okay with you. [00:03:23] Speaker 00: Is your principle argument that there is no authority to support their at least implicit claim that non-resident aliens are covered by the government contact exception under the D.C. [00:03:35] Speaker 00: long arm? [00:03:36] Speaker 00: Forgetting the First Amendment, whether that implicates the First Amendment or not, there is no case [00:03:43] Speaker 00: you claim and I can't find any and I'll ask the other side that says that exception applies to non-resident aliens. [00:03:53] Speaker 00: Is that your argument? [00:03:55] Speaker 03: So let me be very specific in our response. [00:04:00] Speaker 03: We believe that this particular defendant [00:04:06] Speaker 03: cannot invoke the protection of the government contacts exception, because he does not enjoy a protected right under the petition clause having rejected his citizenship. [00:04:18] Speaker 00: All right, so I want to go more narrow, okay? [00:04:20] Speaker 00: I want to try and figure out what DC law says. [00:04:22] Speaker 00: You're making a loftier argument. [00:04:24] Speaker 00: I understand what you're arguing, and we are not inclined to go overly lofty if there's another way to do it. [00:04:31] Speaker 00: I'm asking you, are you saying there is no case authority to support their claim that a non-resident alien can say that I am protected to the extent that it's a protection? [00:04:46] Speaker 00: I am covered by the government contacts exception on the DC long-run provision. [00:04:53] Speaker 03: So there are cases [00:04:56] Speaker 03: in the circuit, they're federal court cases, where district courts on a handful of occasions have held without deciding the issue. [00:05:09] Speaker 00: Are there any court of appeals decisions? [00:05:12] Speaker 00: There are not. [00:05:12] Speaker 00: There aren't any. [00:05:13] Speaker 00: And the one that they cite in the district court site really does not decide the question. [00:05:18] Speaker 00: There's a footnote reference, it doesn't. [00:05:20] Speaker 00: I'm trying to understand how much you're pushing that. [00:05:23] Speaker 00: as I understand your loftier notion, but I'm trying to understand, are you saying there is no circuit law to support their claim to be under the government context [00:05:38] Speaker 00: exception, protection, as it so to speak. [00:05:42] Speaker 03: There is no circuit law, Your Honor. [00:05:44] Speaker 03: However, I'd like to point out, I believe that the position that we are advocating is actually narrower rather than loftier, and here's why. [00:05:51] Speaker 03: It is hypothetically possible [00:05:56] Speaker 03: that a non-resident alien, for example, a citizen of a foreign country or even a corporation in a foreign country, could, under the definition of the people in Verdugo or Quidez, establish a sufficient connection with this country so that it would come within the definition of the people. [00:06:19] Speaker 03: So in other words, our position is narrower in that it doesn't exclude wholesale [00:06:25] Speaker 03: every single non-resident alien. [00:06:27] Speaker 00: I'm only talking about, remember, the reference to the exception, the government contact exception. [00:06:33] Speaker 00: Correct. [00:06:34] Speaker 00: Correct. [00:06:35] Speaker 03: Correct. [00:06:35] Speaker 00: What we're saying is that— Well, you know, remember, the initial case in the D.C. [00:06:39] Speaker 00: Court of Appeals talks about citizenry. [00:06:42] Speaker 00: So you have that on top of the First Amendment, and the question is to whether or not the First Amendment to what extent covers non-resident aliens. [00:06:50] Speaker 00: But the original case in the D.C., [00:06:53] Speaker 00: Court of Appeals refers to citizenry, protecting of citizenry, does not talk about, and I'm trying to understand how much you're going there. [00:07:00] Speaker 00: Let me ask you, so I guess you're hedging on that and your last answer suggests that that's not your principal argument? [00:07:07] Speaker 00: But let me ask you, go ahead, you wanna? [00:07:10] Speaker 03: I was just gonna say, I'm not convinced that the court has to go that far, but it is true, and we completely agree with your honor, that if you look at the case law that you're talking about in the District of Columbia Court of Appeals, and in particular, if you look at environmental research, [00:07:32] Speaker 03: there, unquestionably, the court is only talking about an exception that applies to members of the national citizen. [00:07:40] Speaker 00: Right, there's no question. [00:07:41] Speaker 00: Their rationale doesn't go any more broadly than that. [00:07:44] Speaker 00: That's why, and I don't see any of our DC Circuit, not DC District Court. [00:07:49] Speaker 00: I don't see any DC Circuit case extending it there, but I want to ask you another question. [00:07:55] Speaker 00: Assume I don't agree to the extent that you're making the argument. [00:08:00] Speaker 00: Assume I don't agree that [00:08:02] Speaker 00: you fit a substantial revenue that you can rest on that, then I would see your claim as principally engages in any other persistent course of conduct. [00:08:16] Speaker 00: I would see that as your claim. [00:08:18] Speaker 00: Now, give us a sense of what conduct you're talking about [00:08:27] Speaker 00: And assume the government contacts might apply. [00:08:31] Speaker 00: Just take that aside. [00:08:32] Speaker 00: So what are the other contacts that you are resting on to make the argument that they satisfy the statutory requirement of engaging in other persistent courses of conduct? [00:08:47] Speaker 03: So just so I follow the assumption, the court would hypothetically not agree with us about somebody who's renounced for citizenship. [00:08:58] Speaker 00: Leave that aside for now, yeah. [00:09:00] Speaker 00: I don't know what to make of that. [00:09:01] Speaker 00: Leave that aside for now. [00:09:02] Speaker 03: So if that were the case here, you would take out of the jurisdictional calculus the defendant's contacts with the jurisdiction up to 2012, which is when the Magnitsky Act was passed. [00:09:17] Speaker 03: And you would look only at the post-2012 context. [00:09:20] Speaker 03: And there you would have a very substantial record, over 20 contexts that we know of so far that are in the public record. [00:09:28] Speaker 03: that fall into several categories, none of which has ever been recognized as a government contact within the exception. [00:09:36] Speaker 03: So for example, the defendant entered the district on multiple occasions to market his book. [00:09:44] Speaker 03: He made appearances at think tanks. [00:09:47] Speaker 03: He came here to give press interviews, to go on TV and on the radio. [00:09:52] Speaker 03: These were all non-discretionary contacts. [00:09:56] Speaker 00: Okay, so here's my question, and I understand your list, and it looks like it's about 20 over eight years, I guess. [00:10:04] Speaker 00: Something like that. [00:10:05] Speaker 00: 20 over eight years. [00:10:07] Speaker 00: of the sort of things that you're talking about. [00:10:09] Speaker 00: What is there any case that explains or tells us something to suggest that 20 contacts of this sort coming in and out of the country for a press conference and going to lunch and whatever he was doing is what we're talking about when we say persistent contacts under the DC statute. [00:10:31] Speaker 03: Well, I think that the analysis is spelled out very clearly in Crane v Carr, which is one of the few circuit cases that really talks about how you go about applying A4, as opposed to A1. [00:10:48] Speaker 03: There's plenty of case law on A1, not a lot on A4. [00:10:52] Speaker 03: And the 80 or so government contacts exception cases really talk only about what you exclude. [00:10:58] Speaker 03: But if you look at Crane v Carr, [00:11:01] Speaker 03: What the court there says is, what you're looking at is you're trying to determine, because you know you've got injury in the district, right? [00:11:09] Speaker 03: So you've already got a pretty firm foundation under the due process clause. [00:11:13] Speaker 03: You're looking at the plus factors. [00:11:15] Speaker 03: And you're trying to determine, in the language of crane v car, is the in-forum contact so isolated [00:11:24] Speaker 03: And is this a situation where the defendant has no affiliation or scant affiliations with the district? [00:11:31] Speaker 03: And that's not the case here. [00:11:33] Speaker 03: Here you've got a defendant who, first of all, is on record as saying that he has made a second career in the district. [00:11:41] Speaker 03: He's here all the time doing all sorts of different things to promote interests. [00:11:48] Speaker 03: And none of those contacts, promoting his personal interests, and none of those contacts have anything to do with [00:11:54] Speaker 03: getting information to the government, getting information from the government, and critically, in the language of— Forget the government context thing. [00:12:03] Speaker 00: I understand your argument there. [00:12:05] Speaker 00: I'm trying to understand what do we mean by persistent course of conduct. [00:12:09] Speaker 00: Does persistent mean conduct of the same sort, so that your presence is about something in particular, so we would have reason to know that if you come in, you're about whatever. [00:12:22] Speaker 00: Right, and you're doing it persistently, or does it mean you made 20 trips to the USA over eight years? [00:12:31] Speaker 03: Well, I think under Crane v Carr, with the plus factor analysis, the persistent course of conduct, remember, is a plus factor. [00:12:39] Speaker 03: The purpose of the plus factor analysis is to ensure, as a matter of due process, that the course of conduct [00:12:49] Speaker 03: that's being counted as a plus factor is not so trivial or isolated that it counts as nothing, but it doesn't require much more than that. [00:12:59] Speaker 03: Here we have quite a bit. [00:13:01] Speaker 03: Here we have someone who the evidence suggests strongly is making a career here, repeatedly coming to the district to sell his book, repeatedly coming to the district to demonstrate his bona fides as an expert in Russia-U.S. [00:13:15] Speaker 01: relations. [00:13:19] Speaker 01: conceptualizing persistent conduct as if it were the due process minimum plus a little bit more. [00:13:32] Speaker 01: And I'm not sure that gives fair content to the statute itself, which uses the word persistent. [00:13:41] Speaker 01: read in context of other prongs of the statute, which use words like regularly and substantial before revenue. [00:13:51] Speaker 01: It seems like the statute is designed to set a much higher trigger than just the due process minimum. [00:14:02] Speaker 03: I think that my understanding of A4 based on the case law is consistent with Your Honor's observation that unlike A1, which is intended to extend to the outer bounds of what's permitted under the due process clause, A4 requires something more. [00:14:23] Speaker 03: However, the case law is quite clear that it is a lenient standard. [00:14:27] Speaker 03: And again, I believe the touchstone is justice [00:14:30] Speaker 03: Ginsburg's decision in Crane v. Carr, which makes it very clear that the due process safeguard that is embodied in those plus factors [00:14:42] Speaker 03: is not a rigorous standard, but is rather intended to ensure against a situation where a defendant is being hailed into the district who has no meaningful contact with the district. [00:14:55] Speaker 03: The contacts here that are alleged and in the record evidence a very significant [00:15:03] Speaker 03: indeed persistent, a series of entries into the district over time, which are characterized by the defendant himself as a career in Washington for a consistent set of purposes. [00:15:19] Speaker 03: So I think we are well within, comfortably within A4. [00:15:26] Speaker 01: Just one more question for me, which is when we're assessing [00:15:33] Speaker 01: persistent course of conduct under the A4 subprong? [00:15:41] Speaker 01: Do we need to screen the contacts through the fiduciary shield doctrine? [00:15:51] Speaker 01: Do we need to consider whether the fiduciary shield doctrine cuts out some of those contacts? [00:15:57] Speaker 03: So we don't take issue with the viability of the fiduciary shield doctrine, our position is- On this subprong of A4. [00:16:06] Speaker 03: Exactly right. [00:16:07] Speaker 01: You rest on the proposition that we need to consider it, but it is not going to apply where you're talking about the founder and CEO of the company. [00:16:17] Speaker 03: That's exactly right. [00:16:18] Speaker 02: Go ahead, finish your question. [00:16:24] Speaker 02: Oh, I was going to ask you one more question about the government contacts exception. [00:16:28] Speaker 02: You've talked about the fact that the defendant here is a UK citizen and you've raised all those questions about whether the exception applies. [00:16:38] Speaker 02: But isn't there a second issue lurking here, which is unresolved and that is [00:16:47] Speaker 02: All of the cases so far, under this exception that I know of, both DC and federal, all the cases involve defendants who have direct contact with government agencies. [00:17:02] Speaker 02: Here, the defendant is arguing that, yes, there's no direct contact, but this is Washington. [00:17:08] Speaker 02: And people lobby in many indirect ways, press conferences, writing books, [00:17:16] Speaker 02: talk shows. [00:17:18] Speaker 02: I mean, that's just the way Washington works. [00:17:21] Speaker 02: And except for one district court decision, there are no cases extending it that far. [00:17:29] Speaker 02: And isn't that an unresolved issue under DC law also? [00:17:34] Speaker 02: In other words, don't we have two certifiable questions here? [00:17:39] Speaker 03: So Your Honor, I think that the question of the scope of the doctrine [00:17:46] Speaker 03: In other words, whether or not it brings within its sweep, not just contacts for the purpose of directly providing information to or from the government, but as was held by the course below, any conduct that is any contacts that are arguably related to lobbying. [00:18:09] Speaker 03: I don't think that's an unsettled question. [00:18:12] Speaker 03: I mean, in the case of Bechtel and Cole, [00:18:15] Speaker 03: which was a panel that Judge Edwards, that Your Honor sat on, the court was very clear to emphasize that in addition to requiring a contact with a government agency, the contact also had to be non-discretionary. [00:18:35] Speaker 03: That's a critical concept that already is enshrined in this circuit's decision of law. [00:18:43] Speaker 03: It has to be a contact to be protected under the exception. [00:18:46] Speaker 03: It has to be a contact where you had to come into the district to do it, non-discretionary. [00:18:53] Speaker 03: That's Cole and Bechtel. [00:18:55] Speaker 02: All of these, he's come into the district. [00:19:03] Speaker 02: His argument is just as people come to the district to lobby a particular agency specifically, I've come into the district [00:19:12] Speaker 02: to lobby to influence the passage of this bill through writing a book and having press conferences. [00:19:21] Speaker 02: And I don't know of a case either in our court or the DC courts that reject that theory. [00:19:28] Speaker 02: That's my question. [00:19:29] Speaker 02: So since there's no controlling decision, and it's clearly important because [00:19:40] Speaker 02: It's a really important question and it raises tricky issues. [00:19:46] Speaker 02: My only question is, isn't that a certifiable question also? [00:19:51] Speaker 03: I would submit, Your Honor, that that expansive reading of the government contacts exception is fundamentally inconsistent with Bechtel and Cole's requirement that a contact be non-discretionary. [00:20:08] Speaker 03: All of these contacts were activities that could have taken place anywhere. [00:20:14] Speaker 03: The defendant could have given a press interview in any place in the world. [00:20:20] Speaker 03: He didn't have to come to the district to do it. [00:20:22] Speaker 03: He could have spoken to promote his book anywhere in the world, but he came to the district. [00:20:28] Speaker 03: These are all discretionary activities. [00:20:31] Speaker 03: I think Bechtel and Cole squarely requires that the contact's non-discretionary. [00:20:37] Speaker 00: And therefore- Now, are you merging together the pre-act conduct where it really was [00:20:44] Speaker 00: direct activity in Congress with some of the later activities? [00:20:51] Speaker 00: Are you saying there was nothing, assuming a non-resident alien would be covered, are you assuming there's no activity here that would fit the exception? [00:21:04] Speaker 03: Assuming that a non-resident alien, oh, is covered by the exception. [00:21:08] Speaker 00: Yes, covered by the exception. [00:21:10] Speaker 00: Are you saying nothing here? [00:21:13] Speaker 03: None. [00:21:14] Speaker 03: We would say that none of the post-2012 contacts— Post-2012. [00:21:21] Speaker 03: Post-2012. [00:21:23] Speaker 03: Pre-2012, I agree. [00:21:25] Speaker 03: If the exception applies, pre-2012, he's going to Congress. [00:21:29] Speaker 03: Right. [00:21:29] Speaker 00: Yeah. [00:21:30] Speaker 00: Okay. [00:21:30] Speaker 00: Fine. [00:21:31] Speaker 00: So your argument is that post-2012 [00:21:37] Speaker 00: whether the contact applies or not, there are plenty of other activities that fit, your argument is, there are plenty of other activities that fit the persistent course of conduct. [00:21:48] Speaker 00: So you say, yeah, I'll concede he's covered. [00:21:50] Speaker 00: Let's assume non-resident alien is covered. [00:21:53] Speaker 00: He's covered. [00:21:54] Speaker 00: I concede that. [00:21:55] Speaker 00: That's not the whole case. [00:21:56] Speaker 00: Your argument is there's much more going on here. [00:21:59] Speaker 00: The persistent course of conduct is well beyond anything that the exception was ever intended to cover. [00:22:07] Speaker 03: That is exactly right. [00:22:08] Speaker 03: We don't need protection to prevail in this case. [00:22:11] Speaker 00: I just want to make sure I had you straight. [00:22:12] Speaker 00: That is clearly that's why I was asking. [00:22:14] Speaker 00: I will ask the other side as well. [00:22:16] Speaker 00: Seems to me this thing rises and falls more or less on persistent course of conduct. [00:22:20] Speaker 00: And I'm trying to get a handle on it because I hear you to say if I'm willing to give up the non-resident resident alien argument because I win anyway. [00:22:31] Speaker 03: That's right. [00:22:31] Speaker 03: And I think the only point I would add to that is, given how many contacts we have post-2012, we think there's more than a good faith basis for jurisdictional discovery to determine whether, beyond what's available on the public record, there's more evidence. [00:22:50] Speaker 02: Thank you. [00:22:50] Speaker 03: All right. [00:22:51] Speaker 03: I got you. [00:22:52] Speaker 02: All right. [00:22:52] Speaker 02: I think, unless Judge Cassis has a question. [00:22:55] Speaker 02: I do not. [00:22:57] Speaker 02: OK. [00:22:57] Speaker 02: You're welcome. [00:22:58] Speaker 02: We'll hear from the other side. [00:23:01] Speaker 04: Thank you, Your Honor. [00:23:02] Speaker 04: Mike Gottlieb from Wilkie Foreign Gallagher on behalf of Mr. Browder. [00:23:06] Speaker 04: We're here today because Bill Browder made the courageous decision to stand up to Vladimir Putin's kleptocratic regime after his friend and colleague, Sergei Magnitsky, was incarcerated and murdered for the offense of having revealed a massive corruption scheme involving the Russian government. [00:23:22] Speaker 04: Mr. Browder has since devoted his life to pursuing justice for Magnitsky. [00:23:27] Speaker 04: His policy agenda is to persuade government [00:23:30] Speaker 04: as well as the voters who elect those governments and the media that informs them to adopt and enforce the Magnitsky Act, which seeks accountability for corrupt and violent Russian officials. [00:23:41] Speaker 04: This policy agenda is precisely what led Mr. Browder to author the book Red Notice, and it led the United States Congress to invite him to Washington, D.C. [00:23:50] Speaker 04: to testify publicly and to attend meetings here. [00:23:53] Speaker 04: Appellant has failed to identify a single substantive contact Mr. Browder had with the district [00:23:58] Speaker 04: that is separate from his work regarding the Magnitsky Act, not one. [00:24:02] Speaker 00: Counsel, let me just, if I may, because I'd really like to get the questions answered. [00:24:10] Speaker 00: I think you have a really difficult argument to make as I read the case law, and I've, God knows, spent time reading it. [00:24:20] Speaker 00: Post 2012, [00:24:22] Speaker 00: to make the argument that your client's covered by the contact's provision. [00:24:27] Speaker 00: That just seems an enormous stretch. [00:24:31] Speaker 00: And that's forgetting the question that we could have as to whether or not he's covered at all, because he's a non-resident alien, and there is no circuit law to support that. [00:24:40] Speaker 00: But let's leave that alone. [00:24:42] Speaker 00: There is conduct [00:24:44] Speaker 00: post-2012. [00:24:45] Speaker 00: And struggle for me, just so you have one judge's struggle here, the struggle for me is whether or not that fits the persistent course of conduct argument. [00:24:57] Speaker 00: And we said a long time ago, I think it was Justice Ginsburg who wrote the opinion, that is a less substantial requirement than the doing business requirement. [00:25:06] Speaker 00: And that's law of the circuit. [00:25:09] Speaker 00: It is not an overly rigorous requirement. [00:25:13] Speaker 00: And so now I need to understand both of your views on what that means, because I'm going to tell you honestly, my current thinking for what it's worth is, I don't know how you can possibly make the argument that the contact would apply plus 2012. [00:25:27] Speaker 00: There are all kinds of things going on, nothing like what DC law [00:25:31] Speaker 00: up to now has put in the contacts exception. [00:25:35] Speaker 00: So why is this not persistent course of conduct? [00:25:39] Speaker 00: Let me try to take that a couple different ways, Your Honor. [00:25:41] Speaker 04: The first is as a factual matter, this distinction between pre and post 2012 fundamentally misunderstands what you know what, don't make it exactly 2012. [00:25:52] Speaker 00: There's a period up to the act [00:25:55] Speaker 00: and then there are other things after. [00:25:57] Speaker 04: Right, Your Honor. [00:25:57] Speaker 04: That's precisely what I'm going to address. [00:25:59] Speaker 04: It fundamentally misunderstands what the Magnitsky Act does. [00:26:02] Speaker 04: The Magnitsky Act authorizes the imposition of sanctions, which requires further action by the United States government in the form of OFAC sanctions from Treasury in determining the individual subject to those sanctions. [00:26:14] Speaker 04: Mr. Browder's advocacy in D.C. [00:26:16] Speaker 04: is continuing to make arguments about who should be subject to those sanctions. [00:26:20] Speaker 04: He is engaged with the Treasury Department. [00:26:22] Speaker 04: He is engaged with Congress on those questions. [00:26:24] Speaker 04: So the fact that the act was enacted is completely irrelevant. [00:26:27] Speaker 04: The idea behind Mr. Browder's advocacy was not just to enact the bill, it was to ensure that it's enforced. [00:26:34] Speaker 04: It also ignores that the plaintiff in this case. [00:26:37] Speaker 01: But that would support him going to Treasury. [00:26:43] Speaker 01: Right. [00:26:43] Speaker 01: I'm not sure it supports him having a press conference. [00:26:48] Speaker 04: So Judge Katz, if I could, I'll get to that argument in one moment. [00:26:52] Speaker 04: The second point I want to add, [00:26:54] Speaker 04: is that this argument ignores that the plaintiff launched a sophisticated well-funding lobbying campaign to repeal and or rename the Magnitsky Act. [00:27:03] Speaker 04: And Mr. Browder was working against that campaign in an effort to defend the act, keep its name, and to stop Congress from repealing it. [00:27:11] Speaker 04: Now, as to the legal question of what contacts are covered, there's a long line of cases predating environmental research, articulating what the contact exception is designed to cover. [00:27:22] Speaker 04: But we don't just rely on cases like United Therapeutics that involved the Vanderbilt lobbying offices in DC. [00:27:28] Speaker 04: The way this contact exception arose came from this court in the Mueller-Brass decision in the 1940s, and it was about the establishment and creation of corporate offices in Washington, DC. [00:27:39] Speaker 04: The court in Mueller-Brass and all the cases that environmental research cites in footnote nine [00:27:44] Speaker 04: all recognize that those offices will do some things other than directly interfacing with the US government. [00:27:49] Speaker 04: They might take orders. [00:27:51] Speaker 04: They might take meetings with other companies. [00:27:53] Speaker 04: They might belong to trade associations. [00:27:55] Speaker 04: But when the principal purpose of those efforts in DC, when the objective is to interface with the US government, the contact section exception has always been found to apply. [00:28:04] Speaker 00: And there's a lot of cases from environmental forward, which frankly are the ones that we have, I think. [00:28:12] Speaker 00: have to guide our thinking, really are not stretching it as far as you're stretching it. [00:28:16] Speaker 00: They just are not. [00:28:17] Speaker 00: Press conferences, a cocktail party, a meeting. [00:28:21] Speaker 00: And I'm not saying they're insignificant. [00:28:24] Speaker 00: I totally understand the significance of them. [00:28:26] Speaker 00: But the cases post-environmental are about direct connections with government agencies or the legislature, let's say. [00:28:32] Speaker 00: That's the case law I'm looking at. [00:28:34] Speaker 00: And that's where it's bounded. [00:28:37] Speaker 00: Now, I hear what you're saying, but there's no case law to support it. [00:28:40] Speaker 04: Your honor, I respectfully, respectfully, I disagree. [00:28:43] Speaker 04: There are cases like Jung versus Association of Medical Colleges, which is a case that the plaintiff sites at footnote 11 in his brief. [00:28:50] Speaker 04: That cites a long line of cases about participation in trade associations in Washington DC. [00:28:55] Speaker 04: Those cases recognize that when private companies and organizations [00:28:58] Speaker 04: come to DC to participate in trade association activities, including membership activities in those organizations that have no connection to the federal government whatsoever are covered under the contact exception. [00:29:11] Speaker 04: And that's, uh, there's another case also that, that we've cited called ICI versus United States from the district court in DC in 1982. [00:29:18] Speaker 04: And then along with United Therapeutics, there's also the Sierra club versus Tennessee Valley authority case. [00:29:22] Speaker 00: Are you talking about any circuit law? [00:29:24] Speaker 00: Cause I can't find it. [00:29:26] Speaker 00: These are all district court cases. [00:29:28] Speaker 00: I hate to show my prejudice, but when we're talking about precedent, respectfully, you're talking to three circuit judges and precedent is established by the circuit. [00:29:40] Speaker 00: I understand that, Your Honor. [00:29:40] Speaker 00: Give me the circuit law. [00:29:42] Speaker 00: We love our district court brethren, but the circuit precedent is established by circuit courts. [00:29:48] Speaker 04: There is no circuit precedent definitively on this point, Your Honor, with the exception of the cases that predate environmental research. [00:29:54] Speaker 04: And those cases do come from this court. [00:29:57] Speaker 04: And those cases like Mueller brought brass, which was a seminal case articulating with the government. [00:30:01] Speaker 00: Yeah, I mean, my point is really simple on this impressive. [00:30:04] Speaker 00: And I take this all very seriously. [00:30:06] Speaker 00: We're looking at DC law. [00:30:08] Speaker 00: And I have to, as a judge, have to figure out how do I start thinking about that? [00:30:12] Speaker 00: I start with environmental. [00:30:14] Speaker 00: And we are governed by them, not the opposite. [00:30:18] Speaker 00: Environmental is what sets the stage, and then the certifications to them post-environmental. [00:30:26] Speaker 00: That's the case law I have to look at. [00:30:28] Speaker 00: And so I'm looking at that, and I'm looking at our circuit law from that point forward. [00:30:33] Speaker 00: And that's the body of law I have to figure out. [00:30:36] Speaker 00: Now, where does persistent conduct, I mean, where do I get help? [00:30:41] Speaker 00: on understanding whether there's a persistent cause of conduct, because frankly, I think you're barking up a really high and difficult mountain in saying that government context covers everything here, because I can give you all kinds of teacher hypotheticals to say, here are the absurd results if I try and write it that way. [00:31:00] Speaker 00: Any time I come in [00:31:02] Speaker 00: with a motive of meeting with people and saying things that might promote that statute. [00:31:09] Speaker 00: I'm protected by the government contacts provision. [00:31:12] Speaker 00: That's not what the law is. [00:31:14] Speaker 04: Your honor, if that argument were correct, it would mean that offices that are established in Washington DC for the purpose of interfacing with the US government would not be covered under the exception unless that's literally all they did. [00:31:26] Speaker 04: So those offices would not be eligible to [00:31:29] Speaker 04: issue press releases, to engage in trade association meetings, to work with think tanks, to work with other interested organizations. [00:31:37] Speaker 04: And that simply ignores the reality of what businesses do when they come to Washington DC. [00:31:44] Speaker 04: If you're just taking environmental research on its terms, environmental research does not speak of the citizenry with respect to the prong of its test with the rationale that is discussing the sort of due process rationale for why environmental research exists. [00:31:57] Speaker 04: Environmental research has two prongs. [00:31:59] Speaker 04: One relates to the First Amendment. [00:32:00] Speaker 04: The second relates to attempting to stop Washington, D.C. [00:32:04] Speaker 04: from becoming a national forum for litigation that would arise when people come into D.C. [00:32:10] Speaker 04: for the principal purpose of interfacing with the U.S. [00:32:13] Speaker 04: government. [00:32:13] Speaker 04: And this line of cases began with companies that were establishing offices here, and it has been articulated and developed since. [00:32:21] Speaker 04: Now, I want to make one point about the appellant argument. [00:32:27] Speaker 02: Mr. Golly, let me [00:32:29] Speaker 02: Maybe this is where you were going. [00:32:30] Speaker 02: But as I understood counsel's argument, it was that the case law has, in fact, resolved this issue. [00:32:40] Speaker 02: And he cites Bechtel and Cole in terms of his argument about discretionary and non-discretionary. [00:32:49] Speaker 02: Do you want to respond to that? [00:32:51] Speaker 04: We don't think that any of the case law that we've cited is consistent with that rule being applied to contacts like this. [00:32:58] Speaker 04: But first of all, just as a factual matter. [00:33:02] Speaker 02: Wait, I don't understand your answer. [00:33:03] Speaker 02: What is that? [00:33:04] Speaker 04: What did you just say? [00:33:06] Speaker 02: What did you just say? [00:33:06] Speaker 02: He said, as I understood his argument, there's something about the Bechtel case, and it has to be non-discretionary. [00:33:16] Speaker 02: In other words, you actually have to, did you understand that argument? [00:33:20] Speaker 04: As we understand that argument, Your Honor, we do not think it can accurately state the rule because if that were the rule as applied in this circuit, it would mean that all of the offices that companies establish here would not be covered under the government contact exception. [00:33:35] Speaker 04: There's no requirement that a business establish an office in Washington, D.C. [00:33:39] Speaker 04: in order to interact with the U.S. [00:33:41] Speaker 04: government. [00:33:41] Speaker 04: Many businesses interact with the U.S. [00:33:43] Speaker 04: government without having offices here. [00:33:47] Speaker 02: All right, even if we were to agree with you, let's just assume, and this is just one member of this panel speaking, but let's just assume that I agreed with you that case law had not resolved this question. [00:34:02] Speaker 02: That is, it was an open issue. [00:34:07] Speaker 02: All the post-environmental research cases involve direct contact. [00:34:11] Speaker 02: You agree with that, right? [00:34:12] Speaker 02: That is the appeals court cases, all of them, right? [00:34:16] Speaker 02: Everyone. [00:34:18] Speaker 04: I don't. [00:34:19] Speaker 04: Yeah, I don't. [00:34:21] Speaker 04: Yeah, I'm not sure it's correct to say that they all involve direct direct contact with the US government. [00:34:32] Speaker 04: I mean, for example, the crane, the crane decision that that the plaintiff has mentioned involves the receipt of federal funding from by the University of Delaware. [00:34:42] Speaker 04: So first of all, that's not covered by the petition clause. [00:34:44] Speaker 04: There's no right to receive federal funding under the petition clause. [00:34:47] Speaker 04: But second of all, [00:34:48] Speaker 04: It's not a, it wouldn't be a direct contact with the U.S. [00:34:51] Speaker 04: government for the University of Delaware's work that surrounded the receipt of federal funding, the contact that it had with students, for example, the contact that it had in Washington, D.C., related to, even if not directly in the receipt of those funds. [00:35:07] Speaker 04: And so I'm just not sure it's an accurate statement that every contact that's been covered by the decisions of this court involve the direct contact. [00:35:15] Speaker 04: direct contact, Your Honor. [00:35:16] Speaker 04: But if I could, if I could be, since I'm running short on time, address the citizens. [00:35:21] Speaker 02: I just want to pursue this for just a second. [00:35:23] Speaker 02: The standard is when DC, a certifiable question occurs when DC law is genuinely uncertain. [00:35:31] Speaker 02: Don't you think it's genuinely, genuinely uncertain as to whether the government contact exception in the District of Columbia applies? [00:35:40] Speaker 02: to lobbying and other efforts that don't involve direct contacts with government agencies or Congress. [00:35:46] Speaker 02: You don't think that's genuinely uncertain? [00:35:48] Speaker 04: I don't think it's genuinely uncertain as this court has articulated that standard in cases like the Metz case that we cited in our 28-J letter. [00:35:57] Speaker 04: And we have a few arguments. [00:36:00] Speaker 02: Well, I saw you. [00:36:01] Speaker 02: But I don't understand how Metz helps you at all. [00:36:05] Speaker 04: What if Metz helps you? [00:36:07] Speaker 04: The question is sort of two points I would highlight from that. [00:36:10] Speaker 04: The question in Mets is whether there is a discernible path to deciding the issue. [00:36:15] Speaker 04: And we think there's a discernible path for deciding this issue here based on all of the cases that involve contacts that are not direct contact with the US government that have been considered government contacts and that is the discussion we just had. [00:36:30] Speaker 04: But there's another point in Mets that is important, which is that [00:36:33] Speaker 04: when the plaintiff has made a strategic decision to sue in federal court and could have sued in superior court. [00:36:40] Speaker 04: The plaintiff should not receive the benefit of that by essentially getting to mix and match district courts and courts of appeals on legal issues. [00:36:47] Speaker 04: And the plaintiff did receive a strategic benefit in this case. [00:36:50] Speaker 04: Had he sued in DC Superior Court, the DC Anti-SLAPP Act would have applied and a special motion to dismiss would have been adjudicated. [00:36:57] Speaker 04: That was not the case here because he chose to sue [00:37:00] Speaker 04: in diversity jurisdiction in federal district court and show Mr. Browder should not be prejudiced by that. [00:37:06] Speaker 02: I don't understand, Mr. Gottlieb. [00:37:08] Speaker 02: I have no idea what that has to do with how we apply our standard for whether to certify or not. [00:37:14] Speaker 02: The question is whether the question is genuinely uncertain under DC law and whether it's important. [00:37:21] Speaker 02: I don't see anything that suggests [00:37:26] Speaker 02: somehow litigation strategy. [00:37:28] Speaker 02: I mean, if it's a genuinely uncertain question, and it's important, we can't decide, even if plaintiff does get a litigation advantage out of it. [00:37:37] Speaker 04: Your honor, I think that the point on genuine uncertainty is simply that the way that this court has articulated the test is whether there's a discernible path for deciding the issue based on the precedents that exist. [00:37:46] Speaker 04: And we think that there is a discernible path for deciding that. [00:37:48] Speaker 04: We understand [00:37:50] Speaker 04: that there are unanswered questions with respect to the scope of the contact exception. [00:37:53] Speaker 04: We don't dispute that. [00:37:55] Speaker 04: But the precedents that do exist and the types of business contacts with DC that have been covered under the government contact exception over the years. [00:38:04] Speaker 04: do create a path from which to reason on what those principles are. [00:38:08] Speaker 00: And the essential... You're not citing us any circuit law. [00:38:10] Speaker 00: Are you talking about the Trade Association, another district court case? [00:38:15] Speaker 04: Your Honor, we can see that these cases have largely come up through the district courts. [00:38:20] Speaker 04: But the general principle that one can derive from them is, think about the contacts that a particular defendant has with Washington, D.C. [00:38:27] Speaker 04: Would that defendant have had those contacts if the capital of the United States was in Houston instead of Washington, D.C.? [00:38:32] Speaker 04: ? [00:38:33] Speaker 04: And here it's clear that Mr. Browder would not have made any of these trips relating to discussions around the Magnitsky Act if the seat of national government was in Houston rather than Washington, DC. [00:38:43] Speaker 04: He was invited to testify by Congress. [00:38:45] Speaker 04: He was speaking to things like the Helsinki Commission on these trips. [00:38:49] Speaker 04: He was talking about a national piece of legislation enacted by Congress, enforced by the Treasury Department. [00:38:54] Speaker 04: And we don't think the plaintiff seriously argues otherwise. [00:38:57] Speaker 04: That is the argument that environmental research makes. [00:39:00] Speaker 00: So if he took a position at Georgetown Law School to teach about matters like this and focusing on this statute, how do you analyze that? [00:39:18] Speaker 04: Well, first of all, it would depend whether [00:39:20] Speaker 04: we were asking the question under subsection A1 of the statute or as we are here under A4. [00:39:26] Speaker 04: So if he were teaching at Georgetown and the argument for jurisdiction was that he engaged in some kind of act from which the claim in the case arose, clearly there would be jurisdiction there. [00:39:36] Speaker 04: And that would actually raise the issue that the court in Rose addressed. [00:39:40] Speaker 04: And this is an important point I haven't been able to make yet, which is that there is no conflict between Rose and environmental research with respect to the statute that's being applied in this case. [00:39:49] Speaker 04: Rose is expressly limited to claims brought under section A1 of the long arm statute. [00:39:54] Speaker 04: Footnote, Rose is clear on this point. [00:39:56] Speaker 04: Company of Brasileira repeats that point. [00:39:58] Speaker 04: And so the apparent conflict that exists between Rose and environmental research is only present when there is no due process concerns at play, which is the case under A1 but is not the case in a case brought under A4 where you're trying to hold a non-citizen foreigner [00:40:14] Speaker 04: to civil jurisdiction in DC for their extraterritorial acts. [00:40:18] Speaker 04: So that's a really important point, along with... Yeah, Mr. Gallagher, finish up, because we're way over time. [00:40:25] Speaker 02: And unless Judge Edwards or Judge Katz has any other questions, we're going to move on. [00:40:30] Speaker 04: So the only other point I would make is that there are more than 15 published decisions, both from this court and from the district courts in DC, applying the contact exception non-citizens. [00:40:40] Speaker 04: The uncertainty that [00:40:42] Speaker 04: The plaintiff has mentioned does not exist. [00:40:44] Speaker 04: That does include Judge Edwards three decisions from this court, including the Kaiser Stole Wine case in 1981, the Donahue versus Far East Airport case from 1981 also that we cited in our 28-J letter, and a case that predates environmental research called Treyar versus de Havilland Aircraft of Canada from 1961. [00:41:05] Speaker 04: That's 294 F-second, 229. [00:41:09] Speaker 04: Mr. Dolly, you're out of time. [00:41:11] Speaker 04: Thank you. [00:41:12] Speaker 04: Thank you, Your Honor. [00:41:14] Speaker 02: And Mr. Tremont, you too, I think we're out of time, but you can take two minutes. [00:41:19] Speaker 03: Just very briefly, Your Honor, I would point to the relevant language in Bechtel and Cole at 18F3 953, where the court stated that the defendant's quote, that the contact at issue, quote, was discretionary. [00:41:36] Speaker 03: not dependent on the unique character of the district as the seat of national government, and therefore we find that Graceland's contacts with Bechtel fall outside the protective scope of the government contacts doctrine. [00:41:48] Speaker 03: I think that language and that principle, which is key to the holding, forecloses the appellee's argument here. [00:41:58] Speaker 03: However, if there is a question to certify and Bechtel and Cole is not controlling, I think it would be the following. [00:42:05] Speaker 03: whether or not discretionary contacts that do not involve direct connection with the government can be counted under the government contacts exception. [00:42:16] Speaker 03: I have nothing further. [00:42:18] Speaker 02: Okay. [00:42:20] Speaker 02: Gentlemen, thank you. [00:42:20] Speaker 02: The case will take the case under advisement. [00:42:23] Speaker 02: Thank you.