[00:00:00] Speaker 02: Case number 21, Dutch 5250, Sheva Rachel Mark, Individually and as parent and natural guardian of CDM, RLM and EDM minors at Allen Balance versus the Republic of the Sudan and United States. [00:00:14] Speaker 02: Mr. Kerling 38 Balance, Mr. Kern 38 Beliche, Ms. [00:00:18] Speaker 02: Carson 1339. [00:00:20] Speaker 06: Morning council, Mr. Kerling, please proceed when you're ready. [00:00:23] Speaker 01: Your honor, may it please the court. [00:00:27] Speaker 01: Mark's family, [00:00:28] Speaker 01: I said from the beginning of the case, the outset, they do not challenge the government's authority to settle claims. [00:00:37] Speaker 01: But they challenges the government's authority to do so in unconstitutional settlement. [00:00:43] Speaker 01: That's what this case is about. [00:00:46] Speaker 01: It involves an unprecedented settlement agreement entered into between the United States government and Sudan, in which certain claimants [00:00:59] Speaker 01: were compensated, provided, were allowed to continue their cases, or both, and only the Marks and a small group of similarly situated claimants were denied any benefits of the settlement agreement. [00:01:20] Speaker 01: They lost their claims, the claims were espoused and settled for the benefit of the other parties. [00:01:29] Speaker 01: I haven't seen any precedent of the settlement that goes with the benefits are distributed so inequitably. [00:01:40] Speaker 04: Mr. Carlin, in understanding your argument, your equal protection argument, are you making the argument that the jurisdiction stripping here violates equal protection, [00:01:55] Speaker 04: as well as the substance of the claims settlement violates equal protection. [00:02:01] Speaker 04: Because I see those as two distinct claims. [00:02:05] Speaker 01: There are two claims, but the crux of the jurisdiction stripping claim is that was done in a way that violates equal protection. [00:02:17] Speaker 04: Right. [00:02:17] Speaker 04: So it seems that we have to first address whether the jurisdiction stripping violates equal protection. [00:02:26] Speaker 04: Because if the jurisdiction stripping provision is constitutional, then we lacked subject matter jurisdiction. [00:02:35] Speaker 01: Well, there are two ways in which the jurisdiction stripping provisions can be unconstitutional. [00:02:40] Speaker 01: One is based on access to court. [00:02:43] Speaker 01: And one is based on the disparate treatment of certain claimants versus others. [00:02:50] Speaker 01: The 9-11 claimants were given [00:02:54] Speaker 01: leave to continue their cases, and they were compensated under the settlement agreement. [00:03:00] Speaker 06: But that just goes to confirm, I think, what the premise of Judge Rao's question is, which is that in order to go forward in any way with this case, we'd have to first conclude by your own argument that the jurisdiction stripping provision is invalid. [00:03:15] Speaker 06: Because if it's not, then we lack jurisdiction. [00:03:18] Speaker 01: I'm not sure what happened here. [00:03:21] Speaker 01: What happened first was that the [00:03:23] Speaker 01: executive rich entered into the claim settlement agreement once again, and in that agreement, they espoused and settled all claims. [00:03:34] Speaker 01: The jurisdiction stripping provision is more forward-looking. [00:03:37] Speaker 01: I mean, the claims of these, of the claimants with any pending case were terminated with the espousal. [00:03:48] Speaker 01: Jurisdiction stripping claims provisions are [00:03:53] Speaker 01: You know, as the pending cases is piling on and as the future cases, I think that's what the, the, I was, Congress is looking to future cases by stripping jurisdiction and, and terminating the cause of action, the statutory cause of action. [00:04:11] Speaker 01: It also applies to the pending cases. [00:04:12] Speaker 01: But I think the first step here was that the government, [00:04:15] Speaker 01: uh, espoused and settled all cases. [00:04:18] Speaker 06: Right. [00:04:18] Speaker 06: But for our purposes, that was the first step chronologically for purposes of what happened to your claims. [00:04:23] Speaker 06: But our purpose is in addressing what we can do with your challenge on appeal. [00:04:28] Speaker 06: Don't we first have to decide whether we have jurisdiction and the only way in which we don't have jurisdiction because the statute reports to, um, to reconstitute Sudan sovereign immunity. [00:04:41] Speaker 06: And for us to be able to address your claims at all, we have to conclude that that was invalid. [00:04:45] Speaker 06: Otherwise, we like jurisdiction. [00:04:47] Speaker 01: OK, so let me let me address that because the jurisdiction stripping provisions are invalid for a very fundamental reason under equal protection. [00:04:55] Speaker 01: And it's important to keep in mind the background of the FSIA. [00:05:02] Speaker 01: Before the FSIA was enacted, the executive branch would settle cases ad hoc. [00:05:09] Speaker 01: There were no standards governing what cases were, I'm sorry, the government would allow, would grant or waive immunity on an ad hoc basis. [00:05:19] Speaker 01: There were no standards determining which cases were allowed to proceed and which cases were not allowed to proceed. [00:05:24] Speaker 01: It was just a suggestion by the government, this one can go, and the courts would defer, and these ones can't. [00:05:30] Speaker 01: There were no standards. [00:05:31] Speaker 01: Congress enacted the FSIA to set firm standards so that all US nationals [00:05:39] Speaker 01: would be treated equally in their claims against foreign states. [00:05:43] Speaker 01: The Supreme Court characterized the before and after. [00:05:46] Speaker 01: The FSIA said that with the FSIA, the Congress abated the bedlam. [00:05:56] Speaker 01: And it was arbitrary and capricious which cases were allowed to proceed and which were not. [00:06:00] Speaker 01: This settlement agreement is a throwback to the pre-FSIA [00:06:05] Speaker 00: standards, which didn't, but the world didn't violate the constitution. [00:06:11] Speaker 00: Correct. [00:06:11] Speaker 00: It didn't, it didn't. [00:06:12] Speaker 00: So, so, so if Bedlam was not unconstitutional and the executive could act in perhaps arbitrary ways in deciding, you know, when they were going to suggest immunity was going to be waived or not, [00:06:35] Speaker 00: for foreign sovereigns in Congress provided some standards with the FSIA. [00:06:45] Speaker 00: How is it unconstitutional for Congress to change the standards even if they change them in some way that goes back to some degree to the bedlam that we had before? [00:07:00] Speaker 01: Your Honor, the bedlam was not per se unconstitutional. [00:07:05] Speaker 01: But Bethlehem could be unconstitutional as applied. [00:07:09] Speaker 01: And that's what's happening in this settlement agreement. [00:07:15] Speaker 01: The government threw away all standards, determining that there should be some standard basis for determining when which claims can proceed and which claims can't. [00:07:25] Speaker 01: And they did it within one case where, in one scenario, all of the claimants are similarly situated. [00:07:32] Speaker 01: They're all US nationals. [00:07:34] Speaker 01: terrorism claims against Sudan. [00:07:36] Speaker 01: And the government said you and you and you and everybody can get paid and or maintain their claims or both. [00:07:45] Speaker 01: But these plaintiffs cannot. [00:07:47] Speaker 01: We're going to trade in their claims for no benefits for the benefit, but to the advantage of all the other claimants. [00:07:55] Speaker 04: Mr. Berlin, do you agree that the equal protection standard here is rational basis? [00:08:02] Speaker 01: I think it has to be heightened. [00:08:04] Speaker 01: The reply brief discovered. [00:08:08] Speaker 01: Unfortunately, I didn't discover it earlier, but I was in the motions and the timers in reply brief. [00:08:15] Speaker 01: That the reasons rationale offered by Sudan. [00:08:19] Speaker 01: And the government was patently false. [00:08:23] Speaker 01: The primary basis for the district court's decision was that all of the claimants were compensated. [00:08:29] Speaker 01: And either obtained a [00:08:33] Speaker 01: fall judgment or were the beneficiaries of a private settlement agreement? [00:08:39] Speaker 01: Sudan. [00:08:40] Speaker 01: Sudan went so far to say that the US government had no part, there was no government action, governmental action in these private settlement agreements. [00:08:52] Speaker 01: But Sudan cited a press release that says the government did have a role in the private settlement agreements. [00:09:01] Speaker 01: What that does, [00:09:03] Speaker 01: the disingenuity of the proper rationale for the distinctions, I think it's frozen the doubt every rationale offered, because if they had a valid reason to distinguish, they wouldn't make up a reason that defies the fact. [00:09:21] Speaker 04: Is that an argument that the government's reasons don't pass rational basis review, or that [00:09:29] Speaker 04: Are you arguing that the bad faith of the government or misrepresentation somehow requires to impose a heightened standard? [00:09:36] Speaker 01: It requires a heightened standard of review because there's no basis to evaluate the rationality of the decision when the police are offering deceptive rationale. [00:09:57] Speaker 01: Meaning, if there was a good reason for the distinction, they wouldn't be forced to offer false, seemingly false, reasons that are demonstrably false. [00:10:08] Speaker 01: There were no private settlement agreements. [00:10:10] Speaker 01: These were agreements that predated the signing of the claim settlement agreement. [00:10:16] Speaker 01: They were orchestrated by the U.S. [00:10:18] Speaker 01: government. [00:10:20] Speaker 01: And, I mean, look at this way, there was one group of plaintiffs, the Tate plaintiffs, [00:10:25] Speaker 01: came in 20 years after the coal attack and filed their accident, filed their claim. [00:10:36] Speaker 01: They were represented by a very well-connected firm. [00:10:40] Speaker 01: And they filed it a few months before the Marx did, filed their claim. [00:10:44] Speaker 01: This was a few months before the Marx filed their claim. [00:10:46] Speaker 01: The government claims, and Sudan claims, and this report found that the Marx came in at the 11th hour [00:10:54] Speaker 01: Uh, we're being opportunistic. [00:10:56] Speaker 01: No, nobody said, oh, you know, maybe the state plaintiffs are being opportunistic with the law firms being opportunistic, but they were the ones who orchestrated the private settlement agreements with the U S government. [00:11:07] Speaker 01: I think that it requires scrutiny. [00:11:09] Speaker 01: It requires a closer look because of the deception. [00:11:13] Speaker 01: I was, I requested a few minutes. [00:11:16] Speaker 06: We'll give you a little bit of time. [00:11:17] Speaker 06: Thank you. [00:11:19] Speaker 06: Thank you, counsel. [00:11:25] Speaker 06: Mr. Curran? [00:11:27] Speaker 05: Christopher Curran of Whitencase on behalf of the Republic of the Sudan. [00:11:32] Speaker 05: This morning, I'm accompanied by, among others, the Sudanese ambassador to the United States. [00:11:38] Speaker 05: In the gallery, Ambassador Idris presented his credentials to President Biden earlier this month. [00:11:44] Speaker 05: The ambassador's counterpart, U.S. [00:11:46] Speaker 05: Ambassador John Godfrey, has arrived in Khartoum where he has presented his credentials. [00:11:52] Speaker 05: He's the first U.S. [00:11:53] Speaker 05: ambassador to Sudan in over a quarter of a century. [00:11:56] Speaker 05: This historic normalization between two nations that were formerly contentious was made possible only by the claim settlement agreement and the statute that's at issue in this action. [00:12:11] Speaker 05: Sudan and I think everyone has great sympathy for the horrible incident and the tragedy that befell the Marx family. [00:12:23] Speaker 05: But the district court was correct to dismiss the action against Sudan. [00:12:29] Speaker 05: Under the Supreme Court decision in Rurgas, the district court had optionality as to how it would address the claims. [00:12:39] Speaker 05: And the choice was between addressing the subject matter jurisdiction argument that hinged on a constitutional challenge or the political question doc. [00:12:48] Speaker 05: And the district court [00:12:51] Speaker 05: went primarily on the subject matter jurisdiction and constitutionality argument, but also tipped its hat to the political question doctor. [00:12:59] Speaker 05: This court, I suggest, has the same optionality under Rurgas in choosing how to affirm the dismissal below. [00:13:08] Speaker 05: As to the constitutionality point... Do you think we do have that optionality? [00:13:14] Speaker 04: I mean, we [00:13:15] Speaker 04: before us, I mean, both parties agree that there is a statute that strips us of subject matter jurisdiction in this case. [00:13:22] Speaker 04: So don't we first have to decide that as a threshold issue about whether that jurisdiction stripping provision is constitutional? [00:13:31] Speaker 04: So in some cases, we have the option to choose one jurisdictional round over another, but where there is a statute explicitly divesting us of jurisdiction, don't we have to address that first? [00:13:40] Speaker 05: I understand the question. [00:13:42] Speaker 05: First of all, there's no question this court has appellate jurisdiction under 1291. [00:13:48] Speaker 05: As to the district court's subject matter jurisdiction, yes, ordinarily, it is incumbent upon a district court to address subject matter jurisdiction at the outset. [00:13:57] Speaker 05: But I think Rurgas, in clarifying the Steele Code decision, was quite explicit in saying that when a district court has various threshold [00:14:07] Speaker 05: options to dismiss an action, it may choose among those threshold options. [00:14:12] Speaker 05: Just as this court did prior to Vergas, and in a case cited in Vergas, the Papandreou decision, where this court concluded that it could dismiss an action on form non-convenience before determining, or it concluded that district court could dismiss an action on form non-convenience before addressing subject matter jurisdiction. [00:14:32] Speaker 05: So there are circumstances [00:14:35] Speaker 05: in which a court is excused from making a definitive ruling on subject matter jurisdiction when there is another, perhaps easier, threshold basis for dismissal. [00:14:48] Speaker 00: Is it your contention that political question is an easier grounds for affirmation? [00:14:55] Speaker 00: Sudan doesn't take a position on which is easier. [00:14:58] Speaker 05: We're agnostic as to which approach this court takes. [00:15:02] Speaker 05: We think it's clear under both arguments. [00:15:06] Speaker 05: We think that the constitutionality is clear here because it is a rational basis standard, and we think that we easily pass that for a variety of reasons. [00:15:17] Speaker 05: And we also think that under existing precedent, the political question doctrine would also be a viable way to affirm the dismissal. [00:15:28] Speaker 05: And for that, I cite not only the Federal Circuit decisions in aviation and in belt, which were pretty close to on point to our scenario here, but also the more recent Supreme Court decision in Rucho, which found that it was appropriate not to address equal protection claims. [00:15:46] Speaker 05: on the basis of political question. [00:15:49] Speaker 05: So whether this court is inclined to go with the constitutionality route, as the district court did, or political question, we have no position on that. [00:15:58] Speaker 05: We think either is a viable basis for affirmation. [00:16:01] Speaker 06: You haven't made any argument to the effect that, on the first route, that it's inappropriate to entertain a constitutional challenge to a jurisdiction stripping provision. [00:16:16] Speaker 06: Your argument all along has been, oh sure, there's such thing as an equal protection challenge to this. [00:16:21] Speaker 06: It just fails because it survives, because the statute survives rational basis. [00:16:26] Speaker 05: That's correct. [00:16:27] Speaker 05: This is an unusual case in that the subject matter jurisdiction issue turns on a constitutional issue. [00:16:35] Speaker 06: Right, because of the nature of the challenge. [00:16:37] Speaker 06: But you've never suggested [00:16:38] Speaker 06: that there's some impropriety in entertaining that constitutional challenge to the subject matter of jurisdiction, stripping provision, you've bought into that. [00:16:47] Speaker 06: Your point has been, and the district court accepted it, that the equal protection challenge lacks merit because there is a rational basis for the lines that Congress drew in the statute. [00:16:56] Speaker 06: That's right. [00:16:56] Speaker 05: And I fall back to Rurgas on that point. [00:16:59] Speaker 05: I do think that a district court has an option. [00:17:03] Speaker 05: as to choose between those threshold grounds. [00:17:06] Speaker 04: You know, it's not clear to me exactly what the district court did here, because I mean, the district court seems to address the substantive merits of the equal protection challenge to the statute. [00:17:16] Speaker 04: And then after that, saying that the statute, in the way it allocates claims, doesn't violate equal protection, then finds, you know, then turns to subject matter jurisdiction. [00:17:28] Speaker 05: But it then turns to political question, Doctor, the way I read the opinion. [00:17:33] Speaker 04: I mean, do you agree that the plaintiffs here have, or the appellants have basically two separate equal protection challenges? [00:17:42] Speaker 04: One is an equal protection challenge to the jurisdiction stripping, and another is the equal protection challenge to the way the claims have been settled specifically. [00:17:54] Speaker 05: I don't know. [00:17:55] Speaker 05: I don't know that I understand the plaintiff's argument to that extent. [00:17:58] Speaker 05: Certainly the latter. [00:17:59] Speaker 05: They're certainly claiming that they've been mistreated in the claim settlement agreement and in the implementing statute. [00:18:06] Speaker 05: And I think the district court addressed that. [00:18:09] Speaker 04: I'm not sure that we can reach the substantive equal protection challenge to the statute before we reach the equal protection challenge to the jurisdiction stripping provision of the statute. [00:18:25] Speaker 04: I'm not sure any of our cases permit that ordering. [00:18:28] Speaker 05: I revert gas as permitting that because as, as before determining we have subject matter jurisdiction at all, deciding whether a statute is constitutional laws, the constitutional issue is embedded in the subject matter jurisdiction issue here because which statute are we talking about? [00:18:47] Speaker 05: Well, an equal protection challenge to which statute? [00:18:50] Speaker 05: Well, it's to the stripping, it's to the amendments to the Foreign Sovereign Immunities Act, right? [00:18:56] Speaker 05: That's what the implementation of the statute here did. [00:18:58] Speaker 05: It amended the FSIA. [00:19:00] Speaker 05: And the FSIA, of course, is the sole basis for jurisdiction over foreign states in all parts of the United States, federal and state. [00:19:06] Speaker 05: So here, the challenge, the constitutional challenge, was that the statute amending the FSIA was invalid [00:19:16] Speaker 05: due to unconstitutionality. [00:19:18] Speaker 05: So the equal protection argument is inherently or inextricably entwined in the subject matter jurisdiction question. [00:19:26] Speaker 06: It's not just inextricably intertwined. [00:19:28] Speaker 06: It is a challenge because if the subject matter jurisdiction stripping statute is valid, the case is over because we like jurisdiction. [00:19:38] Speaker 06: So there must be some basis for saying the [00:19:43] Speaker 06: reinstatement of Sudan sovereign immunity is invalid because if it's not invalid, we lack jurisdiction. [00:19:49] Speaker 06: And I take it the way this case arises is there's a challenge that's being made that says actually it is valid. [00:19:55] Speaker 06: And the reason it's invalid is because there's an equal protection problem because it's the only way that Sudan sovereign immunity got reinstated is by [00:20:04] Speaker 06: drawing lines in the reinstatement of sovereign immunity that don't pass muster under the protection clause. [00:20:10] Speaker 05: But am I misunderstanding? [00:20:12] Speaker 05: No, that's how I understand the plaintiff's argument. [00:20:14] Speaker 05: Yeah, that the jurisdiction stripping statute, the Sudan Claims Resolution Act is unconstitutional and therefore fails in effect to amend the MSIA. [00:20:27] Speaker 05: And therefore Sudan still lacks sovereign immunity. [00:20:30] Speaker 05: and therefore the case can go forward. [00:20:32] Speaker 05: That's their argument, because the implementing statute eliminated 1605 capital A, which was the sole basis for subject matter jurisdiction over these claims. [00:20:43] Speaker 06: Any further questions? [00:20:44] Speaker 05: Thank you. [00:20:45] Speaker 06: Thank you, Mr. Kern. [00:20:52] Speaker 06: Ms. [00:20:52] Speaker 06: Carson? [00:20:54] Speaker 03: Good morning, may it please the court, Sonia Carson for the United States. [00:20:58] Speaker 03: Chief Judge Srinivasan, Judge Rao, our understanding of the case is the same as I think the colloquy with both counsel before me have suggested. [00:21:06] Speaker 03: We think that the question before the court first is whether or not the jurisdiction stripping provision of the Sudan Claims Resolution Act is constitutional. [00:21:15] Speaker 03: I understand the plaintiff's argument under rational basis review [00:21:19] Speaker 03: their version of rational basis review to be that because Congress said in the statute that civil claims are an important means of deterring terrorism, that Congress cannot exclude from the restored sovereign immunity the claims of the 9-11 plaintiffs without [00:21:44] Speaker 03: unjustly disadvantaging or singling out these plaintiffs. [00:21:49] Speaker 03: And there are a number of problems with that argument. [00:21:50] Speaker 03: The first one, of course, is that rational basis review is not APA review. [00:21:54] Speaker 03: We do not hold up the text of a government action and ask whether the government has articulated reasons that could support the best understanding or the most perfect [00:22:06] Speaker 03: implementation of those objectives, we ask whether or not there is any conceivable basis to conclude that the decision reflects rational policy rather than arbitrary action. [00:22:16] Speaker 03: And here there are any number of distinctions between these plaintiffs and the plaintiffs who were injured in the 9-11 attacks. [00:22:24] Speaker 04: And it seems that the government's position is that is a more straightforward ground than the political question doctrine. [00:22:30] Speaker 04: Yes. [00:22:31] Speaker 04: Yes, Your Honor, that's correct. [00:22:32] Speaker 04: Can you say a little bit more about that? [00:22:36] Speaker 03: By deciding the distinct constitutional question, whether or not this court has lax jurisdiction because Sudan's sovereign immunity has been validly restored, we are applying ordinary, judicially-administrable principles of constitutional interpretation and equal protection clause. [00:22:59] Speaker 03: And here, of course, the plaintiffs have not been singled out. [00:23:02] Speaker 03: It's not simply the marks who are excluded from [00:23:06] Speaker 03: continuing to pursue their claims against Sudan in US federal courts. [00:23:11] Speaker 03: It's anyone with any claim against Sudan filed or not that preceded their restoration of Sudan's sovereign immunity. [00:23:21] Speaker 06: Could you lower the mics just a little bit or lower the podium just to have a little bit of trouble picking up your voice? [00:23:25] Speaker 03: I apologize. [00:23:26] Speaker 06: Thank you. [00:23:26] Speaker 06: That's much better. [00:23:27] Speaker 06: Can I ask a follow up to that? [00:23:30] Speaker 06: As I understand your brief, you're actually not taking a position on what ultimately taking a position on whether [00:23:37] Speaker 06: there is a non-justiciable political question here. [00:23:42] Speaker 03: So I think it's implicit from our brief that in requesting affirmance on the jurisdictional basis, we think that that question does not present a justiciability issue under the political question doctrine. [00:23:55] Speaker 06: And here, remember- So you don't think there is a political question bar? [00:24:01] Speaker 03: These plaintiffs' particular claims in the context of this case [00:24:05] Speaker 03: Correct. [00:24:06] Speaker 03: We do not think that the political question bars this court from affirming the district court's judgment that there is no jurisdiction here because Congress validly reinstated Sudan's sovereign immunity and that the carve out for the 9 11 plaintiffs does not pose any constitutional impediment to that. [00:24:26] Speaker 06: And there's no political question bar to us looking at that issue. [00:24:31] Speaker 03: In this case, under the basis of the claims the plaintiffs have brought, no, there is no bar. [00:24:35] Speaker 03: Of course, our brief goes on to explain that if the case were to go further, if the course analysis were to go further than affirming on the jurisdictional dismissal, then we do potentially get into quite complex and difficult political questions. [00:24:51] Speaker 03: However, as I think the colloquy between the counsel who have been at the podium before me has, I think, showed, [00:24:57] Speaker 03: There's no need for this court to go so far. [00:24:59] Speaker 03: In this case, what we have is a very straightforward delineation between plaintiffs who filed their claims on the eve of the government action that's challenged here versus claimants who have been in court, some for more than a decade. [00:25:19] Speaker 03: We have plaintiffs who were injured abroad versus plaintiffs who were injured on US soil. [00:25:27] Speaker 03: the sort of entirely rational basis on which Congress can choose to make distinctions in the course of deciding whether a foreign state should rejoin the nations of the rest of the world, except for those designated as state sponsors of terrorism who are immune from suit in US court. [00:25:49] Speaker 03: Thank you. [00:25:50] Speaker 06: Thank you, counsel. [00:25:55] Speaker 06: Mr. Perlin, we'll give you two minutes for rebuttal. [00:26:02] Speaker 01: and address the investment of jurisdiction issue first. [00:26:05] Speaker 01: That seems to be where the court is focused. [00:26:08] Speaker 01: I think the antilock decision, I don't know if this education is handy. [00:26:14] Speaker 01: I think it started in Sudan's brief. [00:26:18] Speaker 01: That case demonstrates that there was a dissent by then Chief Judge Wald saying that if the case involved some racial [00:26:32] Speaker 01: those cases, the claims by a racial minority were espoused. [00:26:42] Speaker 01: The settlement agreement would have been invalid. [00:26:47] Speaker 01: The majority decision is true that if there were a constitutional law in the resolution of those claims, we would be very concerned. [00:27:02] Speaker 01: Sorry, let me back up. [00:27:04] Speaker 01: The jurisdiction of the court was stripped. [00:27:10] Speaker 01: The jurisdiction of the court for certain claims was stripped, and the plaintiffs challenged that. [00:27:19] Speaker 01: They were non-Americans, and both the dissent made the argument. [00:27:24] Speaker 01: The court acknowledged that constitutional challenges to jurisdiction stripping are [00:27:32] Speaker 01: must be heard, and they require court's attention. [00:27:36] Speaker 01: I don't remember the exact language, but that was both in the dissent and in the majority opinion. [00:27:45] Speaker 01: Let me just say this. [00:27:45] Speaker 01: I agree with Mr. Curran that equal protection is embedded in the challenge of jurisdiction stripping, and that compels heightened scrutiny because when [00:28:01] Speaker 01: When a constitutional right is deprived, the level of scrutiny is heightened. [00:28:09] Speaker 01: It's no longer a normal, rational-based view. [00:28:11] Speaker 04: And is that constitutional right, in your view, the access to courts? [00:28:15] Speaker 01: It's several things, access to courts. [00:28:18] Speaker 01: And it's also being treated similarly to the other American claimants under the Selma [00:28:27] Speaker 01: That's equal protection claim. [00:28:30] Speaker 01: There are several manifestations of disparate treatment, and the access court is only one of them. [00:28:35] Speaker 01: But again, there's never been a settlement where some plaintiffs were American claimants were paid, compensated, received benefits, and others received nothing. [00:28:47] Speaker 01: The one last point I want to make is that neither Sudan nor the government has addressed the private settlement agreements. [00:28:56] Speaker 01: And now they're stressing the other bases offered to justify the distinction. [00:29:01] Speaker 01: If those bases really held water, they wouldn't have had to make up to hide the private settlement agreements, which were not private. [00:29:10] Speaker 01: They wouldn't have had to deny falsely that the government was involved in those private settlement agreements. [00:29:17] Speaker 01: So I think that throws into question every rationale offered for the disparate treatment. [00:29:24] Speaker 06: Thank you, counsel. [00:29:26] Speaker 06: Thank you to all counsel. [00:29:27] Speaker 06: We'll take this case under submission.