[00:00:00] Speaker 03:
case number 21-5088.

[00:00:02] Speaker 03:
Murray Brown at balance versus United States of America at out.

[00:00:06] Speaker 03:
Mr. Tolchin for the balance.

[00:00:08] Speaker 03:
Mr. Goldman, amici curiae.

[00:00:10] Speaker 03:
Mr. Koppel for the police.

[00:00:12] Speaker 05:
All right, Mr. Kolchin, good morning.

[00:00:14] Speaker 05:
You may proceed.

[00:00:15] Speaker 02:
Good morning, your honor.

[00:00:16] Speaker 02:
I just want to make sure I'm not having a technical problem.

[00:00:19] Speaker 02:
I don't see you, but I don't know if that's intentional.

[00:00:22] Speaker 02:
You don't.

[00:00:23] Speaker 02:
Go ahead.

[00:00:24] Speaker 02:
Okay.

[00:00:25] Speaker 02:
Your honor, Mr. Goldman and I have

[00:00:28] Speaker 02:
In a general way, divided the topics we're going to address.

[00:00:34] Speaker 02:
And I'm going to jump right to the later topics.

[00:00:38] Speaker 02:
So the government puts a huge emphasis on the word available, the words, the funds available to distribute.

[00:00:51] Speaker 02:
And they read into the word available a whole lot of discretion that they say the special master has.

[00:00:57] Speaker 02:
to decide what's available.

[00:00:59] Speaker 02:
And I think that may be the core of this issue here.

[00:01:06] Speaker 02:
The word funds available as used in the statute does not mean that the special master has discretion to simply decide not to make a distribution.

[00:01:18] Speaker 02:
The mandate of the statute is that there should be an annual distribution whenever there are funds available.

[00:01:23] Speaker 02:
There is a trigger amount that if there's $100 million in the fund,

[00:01:27] Speaker 02:
for more, a special master has to be appointed.

[00:01:31] Speaker 02:
And there's a timeline of what the special master is supposed to do.

[00:01:34] Speaker 02:
The special master is supposed to get appointed, review any claims that haven't been ruled on as to eligibility, authorize payment, report to Congress on the payment and finish the appointment within a year.

[00:01:48] Speaker 02:
And then there's not supposed to be another special master unless and until there's a sufficient amount.

[00:01:55] Speaker 04:
Mr. Tulcher, I thought you're,

[00:01:57] Speaker 04:
Excuse me.

[00:01:58] Speaker 04:
I thought your argument was that they had to pay on January 1st.

[00:02:03] Speaker 02:
Well, that's right.

[00:02:04] Speaker 02:
There's two aspects to my argument, which to tell.

[00:02:07] Speaker 04:
Well, but that is one of your arguments, right?

[00:02:11] Speaker 02:
Yes.

[00:02:12] Speaker 04:
So what did you was it your 28 to 11 this morning that submitted done.

[00:02:18] Speaker 04:
this section, I think it's H.I.

[00:02:21] Speaker 04:
of the statute.

[00:02:23] Speaker 02:
About the congressional report?

[00:02:24] Speaker 04:
Yeah.

[00:02:25] Speaker 04:
I mean, this maybe I'm misreading it, but this seems to support the government's view.

[00:02:30] Speaker 04:
Because it says it says that.

[00:02:35] Speaker 04:
First of all, it very clearly indicates, as the government argues, that there's a difference between the word authorization and payment.

[00:02:45] Speaker 04:
That's the number one, but also

[00:02:48] Speaker 04:
You're right, it requires a congressional report within 30 days.

[00:02:53] Speaker 04:
But that report is about payments that have been made and not made, which suggests that there is no deadline.

[00:03:00] Speaker 02:
Oh, Your Honor, I can address that.

[00:03:02] Speaker 02:
I know exactly what you're thinking, and I think you're misapprehending it.

[00:03:06] Speaker 01:
Go ahead.

[00:03:06] Speaker 02:
The enumerated things that are supposed to be in that report addressing eligible claims that have not been made

[00:03:15] Speaker 02:
is because nobody's getting their full claim paid in a given year.

[00:03:21] Speaker 02:
There are $10 billion worth of claims that have been submitted to the fund and the money is divided up for RADA.

[00:03:28] Speaker 02:
So what's being reported to Congress is we've had this many claims, we've paid out this many and we still owe in future years such and such an amount of money.

[00:03:41] Speaker 02:
That's the part of the,

[00:03:45] Speaker 02:
congressional report that refers to claims unpaid.

[00:03:50] Speaker 02:
What an earlier section of that congressional report says is that the special master was supposed to report, but within 30 days after making payments is supposed to report about the payments that were made and then what remains unpaid in the fund.

[00:04:07] Speaker 02:
But the point is that the special master is supposed to be appointed for at most a year.

[00:04:13] Speaker 02:
There's supposed to be a beginning, a middle, and an end.

[00:04:16] Speaker 02:
The beginning is there's $100 million.

[00:04:18] Speaker 02:
We've got to appoint a special master.

[00:04:20] Speaker 02:
The special master is supposed to make whatever rulings need to be made, whatever claims have been submitted since the last time there was a special master, approve or disallow individual claimants, and authorize payment.

[00:04:35] Speaker 02:
That's where we come

[00:04:36] Speaker 02:
That's where we come, the real semantic game.

[00:04:39] Speaker 02:
The government says authorized payment means to say, okay, you can pay, but doesn't mean actually pay.

[00:04:44] Speaker 02:
We contend that for the special master to authorize payment and then report to Congress about the payments means that money is supposed to be paid and it's supposed to be paid by the deadline set in the statute.

[00:04:56] Speaker 02:
Otherwise it's open-ended.

[00:04:58] Speaker 03:
Please tell me what your definition of authorize is.

[00:05:00] Speaker 03:
Cause I've seen sort of different ones through your brief and I'm trying to figure out what you,

[00:05:05] Speaker 03:
Tell me what you define authorized as under this statute.

[00:05:09] Speaker 02:
Authorized or authorized payment?

[00:05:12] Speaker 02:
Authorized payment.

[00:05:14] Speaker 03:
That's your key phrase here.

[00:05:16] Speaker 02:
Authorized payment means pay.

[00:05:18] Speaker 02:
Black and white, it means pay.

[00:05:20] Speaker 02:
If it doesn't mean pay, then we've got nothing.

[00:05:22] Speaker 02:
There's no mechanism in the statute

[00:05:26] Speaker 02:
for the victims to ever get their money.

[00:05:29] Speaker 03:
Elsewhere in your briefing, you had indicated that you thought authorized payment might mean when your client got his letter saying, here's how much money you're going to come in the future payments.

[00:05:40] Speaker 02:
No, that's the government's argument.

[00:05:41] Speaker 02:
And I argue.

[00:05:42] Speaker 03:
No, no, no, I'm not talking about eligibility.

[00:05:45] Speaker 03:
That's their argument.

[00:05:46] Speaker 03:
I'm talking about the second letter that he received that said,

[00:05:49] Speaker 03:
to make a distribution, here's how many dollars you're going to get.

[00:05:53] Speaker 02:
We do not contend that that satisfies the requirement of authorizing payment because there's no payment involved.

[00:06:02] Speaker 02:
That's telling somebody how much they might one day expect to get if payment is ever made.

[00:06:08] Speaker 02:
But you know what, here's a theoretical way, you know, if they never make payments,

[00:06:13] Speaker 02:
So there will never be a payment then at the end of the day.

[00:06:15] Speaker 04:
Well, I mean, that's what mandamus is for.

[00:06:18] Speaker 04:
I mean, there's ways for the courts to deal with that.

[00:06:22] Speaker 04:
Can I finish my question, please?

[00:06:25] Speaker 04:
There are lots of statutes that don't have deadlines that courts will read into a statute.

[00:06:32] Speaker 04:
The question that Judge Millett is asking you is the government says that the word authorize and the word payment mean different things.

[00:06:43] Speaker 04:
And that seems to be right.

[00:06:45] Speaker 04:
The way the government works is an agency authorizes a payment.

[00:06:51] Speaker 04:
It authorizes it.

[00:06:54] Speaker 04:
And then the treasury or another agency actually pays it.

[00:06:57] Speaker 04:
They're two different acts.

[00:07:00] Speaker 04:
And that's what this language seems to say.

[00:07:04] Speaker 02:
Here you have the fund is our statute.

[00:07:07] Speaker 02:
The fund is in the treasury.

[00:07:09] Speaker 02:
It's not another agency.

[00:07:10] Speaker 02:
It's just, it's a ledger sheet in the treasury.

[00:07:13] Speaker 02:
And the special master is the one who's supposed to authorize the payment.

[00:07:17] Speaker 02:
And if we leave it at that, your honor brought up the word mandamus.

[00:07:22] Speaker 02:
But if we ever did a mandamus, they'll say what they're saying now, which is that the special master has discretion.

[00:07:28] Speaker 02:
And you know what?

[00:07:30] Speaker 02:
It's ludicrous.

[00:07:31] Speaker 04:
If the statute said what you said, it would just say simply, the government, the special master must pay by January 1.

[00:07:39] Speaker 04:
That's what it would say.

[00:07:40] Speaker 04:
Also, let me ask you this.

[00:07:47] Speaker 04:
The government makes an argument in their brief that if the deadline was what you suggest, that the whole thing would be pretty much unworkable.

[00:08:02] Speaker 04:
And he didn't respond to that.

[00:08:04] Speaker 04:
They said just the system with all the steps that have to be taken in the pro rata and all that, that it just couldn't happen by January 1.

[00:08:12] Speaker 04:
What's your answer to that?

[00:08:13] Speaker 02:
My answer is that is a parade of horribles argument that the government conjured up and it's just not true.

[00:08:20] Speaker 04:
Well, it's not a parade of horribles.

[00:08:22] Speaker 04:
They're saying it would be impossible for them to do this.

[00:08:25] Speaker 02:
That's what they're saying.

[00:08:26] Speaker 02:
All claims have to be submitted within 90 days of when you get your judgment.

[00:08:32] Speaker 02:
There is a time period for the special master to rule on them.

[00:08:37] Speaker 02:
If a claimant doesn't like the ruling, there is a procedure for a appeal, which is just an appeal to the special master.

[00:08:47] Speaker 02:
And, you know, if that's completed before the distribution, fine.

[00:08:52] Speaker 02:
If it's not completed before the distribution, so the distribution can go on without that claimant and that claimant will be part of the following year's distribution.

[00:09:00] Speaker 02:
There's nothing that says that a person who has a pending, who's been denied and has a pending appeal that everyone has to wait for them.

[00:09:09] Speaker 02:
All the other stuff that they are talking about, they need to hire an economist to calculate the pro rata distribution.

[00:09:17] Speaker 02:
It's nonsense.

[00:09:18] Speaker 02:
They use a spreadsheet.

[00:09:19] Speaker 02:
They put in everybody's claim amount and the spreadsheet calculates what pro rata is.

[00:09:25] Speaker 02:
They have five justice department staffers assigned to them.

[00:09:30] Speaker 02:
They have a special master and there's no reason that they can't complete the very mundane procedure of figuring out how much money we have and multiplying it by some percentages and mailing out checks.

[00:09:44] Speaker 02:
And in fact, they've done it in past years.

[00:09:47] Speaker 05:
So, Judge Taylor, have you got your answer?

[00:09:51] Speaker 04:
Yes, I'm done.

[00:09:53] Speaker 03:
Can I ask one more question, Judge Anderson?

[00:09:56] Speaker 03:
Sure.

[00:09:57] Speaker 03:
On your complaints, I'm just trying again to pin down this authorized.

[00:10:01] Speaker 03:
In paragraph 75, you talk about actually transmitting the money.

[00:10:07] Speaker 03:
That's the definition you've articulated here.

[00:10:10] Speaker 03:
Enabling the transmission of money

[00:10:13] Speaker 03:
directing anyone to transmit money or authorizing money to be transmitted.

[00:10:19] Speaker 03:
And I would just, I want to make sure I'm understanding your position.

[00:10:22] Speaker 03:
You're now focusing on that first one, that authorized means, authorized payment means the actual, actually transmitting the payment.

[00:10:31] Speaker 02:
Right.

[00:10:31] Speaker 02:
There's a reason it has to be, if not.

[00:10:34] Speaker 03:
Okay.

[00:10:34] Speaker 03:
I'm just, I'm just clear on your language.

[00:10:36] Speaker 03:
I had one other question.

[00:10:37] Speaker 03:
If, if there were $1 in excess of the a hundred million,

[00:10:42] Speaker 03:
uh, balance in the fund with the, would the, um, special master be obligated at that point to do a distribution?

[00:10:50] Speaker 02:
Well, I don't, your question is a little confusing.

[00:10:54] Speaker 02:
Um, if there's a hundred million dollars, that's a substantial amount.

[00:10:58] Speaker 03:
I said, if there's $1 in excess of that, so 100 million, excuse me, excuse me.

[00:11:04] Speaker 03:
If there's a hundred million and $1 is a special master obligated to make a distribution at that point.

[00:11:10] Speaker 02:
of $100 million and $1?

[00:11:13] Speaker 03:
Yes.

[00:11:15] Speaker 02:
$100 million is not a threshold for distribution.

[00:11:17] Speaker 03:
It seems to me it's a yes or no answer.

[00:11:19] Speaker 03:
If it's $100 million and $1, under your theory, is the special master obligated to make a distribution at that point?

[00:11:25] Speaker 02:
The special master at that point is obligated to set aside reserves for whatever known quantities need to be reserved for and to distribute the balance.

[00:11:35] Speaker 02:
And if there's $100 million and $1,

[00:11:39] Speaker 02:
if there's set aside whatever reserves for pending claims or whatever things need to be reserved for and distribute the rest.

[00:11:46] Speaker 02:
The statute says distribute annually.

[00:11:48] Speaker 02:
I know you're trying to get me to talk about if there's $1 and that has to be distributed, but that I'm having trouble.

[00:11:55] Speaker 03:
I'm trying to get you anything.

[00:11:56] Speaker 03:
I'm just trying to ask you a question to understand.

[00:11:59] Speaker 02:
But I'm having trouble with your question because you're making like the fact like $1 more than a hundred million is a significant

[00:12:08] Speaker 02:
is a significant issue.

[00:12:10] Speaker 02:
If there's a hundred million and one dollars, I think you mean to say if the hundred million dollars is spoken for.

[00:12:16] Speaker 03:
That's not what I mean to say at all.

[00:12:19] Speaker 02:
Okay.

[00:12:19] Speaker 02:
If there's a hundred million and one dollars, then yes, the special master is obligated to make a distribution.

[00:12:25] Speaker 02:
That's why.

[00:12:26] Speaker 05:
Thank you.

[00:12:27] Speaker 05:
Mr. Tulsa, you're way over your time.

[00:12:29] Speaker 05:
Mr. Goldman.

[00:12:32] Speaker 01:
You need to unmute yourself.

[00:12:35] Speaker 01:
Thank you.

[00:12:36] Speaker 01:
May it please the court.

[00:12:37] Speaker 01:
My name is Jerry Goldman.

[00:12:39] Speaker 01:
Thank you for the opportunity to be able to participate in this appeal on behalf of the 9-11 victims.

[00:12:45] Speaker 01:
I'm gonna be speaking about the issue of the 25%, whether or not, and when that 25%, the difference between 50-50 and 75-25 applies in this case.

[00:13:01] Speaker 01:
We suggest that the plain language of the statute, the Clarification Act, which was put into effect to protect the 9-11 plaintiffs from dilution, add them into the program, and then make sure there was sufficient funds so they'd have some sort of meaningful compensation, was designed

[00:13:24] Speaker 01:
to operate the way the statute in its express terms states.

[00:13:29] Speaker 01:
Its express terms, the Clarification Act, which was a technical correction, simply changed in this regard one word, 50 to 75.

[00:13:42] Speaker 01:
If Congress wanted a different effective date for that provision, it would have modified that effective date in that provision as it did with other provisions in the Clarification Act, such as attorney fees.

[00:13:56] Speaker 04:
Well, wait, could I just, I'm sorry.

[00:13:59] Speaker 04:
Let's just start with the plain language of the Clarification Act.

[00:14:04] Speaker 04:
It says, it says, it says this section and the

[00:14:11] Speaker 04:
amendments made by this section.

[00:14:13] Speaker 04:
Now, one of the amendments made by this section is to increase, add 25%, right?

[00:14:18] Speaker 04:
That's one of the amendments.

[00:14:20] Speaker 04:
So it says, it says this section and the additional 25% shall take effect on the date of the enactment of this act, November 1st, 2009.

[00:14:37] Speaker 04:
So it seemed clear that

[00:14:40] Speaker 04:
the amendment, the 25% amendment becomes effective on the data gain act and the clarifications act.

[00:14:45] Speaker 01:
I beg to differ, Judge Henderson.

[00:14:49] Speaker 01:
The statute itself.

[00:14:53] Speaker 04:
I'm judging.

[00:14:53] Speaker 04:
That's OK.

[00:14:54] Speaker 01:
Go ahead.

[00:14:55] Speaker 01:
What?

[00:14:56] Speaker 01:
Oh, I'm sorry about that.

[00:14:57] Speaker 01:
The statute itself, which is reproduced in the appendix.

[00:15:01] Speaker 04:
Well, I just read you.

[00:15:02] Speaker 04:
Just stick with the language that I just read to you.

[00:15:05] Speaker 04:
Correct.

[00:15:07] Speaker 04:
It says that the 25% becomes effective on the date of a clarification.

[00:15:13] Speaker 01:
I respectfully disagree, Your Honor.

[00:15:17] Speaker 01:
It doesn't say that it becomes effective on the date of the Clarification Act.

[00:15:22] Speaker 01:
What it says is, in that particular portion, that it simply changed the

[00:15:29] Speaker 01:
the state, the percentage, and then the rest of that sentence.

[00:15:35] Speaker 04:
It says, just help me with the language, shall take effect on the date of the enactment of this act.

[00:15:46] Speaker 01:
Correct.

[00:15:47] Speaker 01:
The enactment of this act, I suggest,

[00:15:51] Speaker 01:
refers to the original act, the act, the VSST Act from 2015.

[00:15:58] Speaker 01:
In other changes in the Clarification Act, they refer to the date of the Clarification Act by date, or they refer specifically to the Clarification Act.

[00:16:13] Speaker 01:
What I suggest is when Congress uses specific terms, it's our obligation, justice, the courts, and what have you, to follow those terms of Congress.

[00:16:26] Speaker 03:
Can I just clarify your answer to Judge Tatel?

[00:16:29] Speaker 03:
So when you're saying that the word this act, the this, T-H-I-S, and that

[00:16:35] Speaker 03:
Clarification Act didn't refer to the Clarification Act.

[00:16:40] Speaker 03:
That in fact referred to the original statute.

[00:16:46] Speaker 01:
In part, yes, and I'll go further than that, Your Honor, the actual terms in the statute doesn't use the word act.

[00:16:55] Speaker 01:
It just changes the word by striking one half and inserting 75%.

[00:17:02] Speaker 01:
That's what the law passed by Congress said.

[00:17:06] Speaker 01:
And then it had to be inserted into the original 2015 act.

[00:17:17] Speaker 04:
That was the quote amendment that became effective.

[00:17:20] Speaker 04:
The change from 50 to 75 was the amendment, quote, the amendment, right?

[00:17:25] Speaker 04:
Correct?

[00:17:26] Speaker 04:
Correct.

[00:17:27] Speaker 04:
Okay.

[00:17:28] Speaker 01:
Correct.

[00:17:29] Speaker 01:
But the exact words by Congress, unlike, for example, when it changed the formula for attorney fees, unlike, for example, when it allowed spouses, children, and the states to participate.

[00:17:44] Speaker 01:
In all of those, they use the specific reference, as Jorana talked about, the reference

[00:17:51] Speaker 01:
to the Clarification Act.

[00:17:53] Speaker 01:
In this particular provision, it didn't do so because it makes sense.

[00:17:59] Speaker 01:
They needed an influx of money because of the numbers involved.

[00:18:03] Speaker 01:
The 9-11 victims were 80% of this fund.

[00:18:07] Speaker 04:
Well, the government points out that this will increase the amount of money.

[00:18:11] Speaker 04:
It will increase it by 25%, just not as much as if it was retroactive.

[00:18:17] Speaker 04:
So in other words, Congress is accomplishing its purpose.

[00:18:20] Speaker 04:
Congress wanted to increase the amount of money available for victims, and it did it.

[00:18:25] Speaker 04:
Your argument is that that increase should be retroactive.

[00:18:33] Speaker 04:
So it's perfectly consistent with Congress's purpose.

[00:18:36] Speaker 01:
I'm suggesting the word effective rather than retroactive.

[00:18:41] Speaker 01:
What happened?

[00:18:44] Speaker 04:
Can you just please respond to my point?

[00:18:48] Speaker 04:
You said that the government's argument is inconsistent with congressional purpose of increasing the amount of money available to victims and the government's interpretation does do that.

[00:19:00] Speaker 01:
I suggest it does not because victims receive 4.82% in the prior year and drop down to less than 1%.

[00:19:11] Speaker 04:
But from the effective date of the Clarification Act onward, there's an additional 25%, right?

[00:19:17] Speaker 01:
From the effective date of the Clarification Act onwards, there will be additional funds if there are future rounds.

[00:19:25] Speaker 01:
That is correct.

[00:19:26] Speaker 04:
That's my point.

[00:19:31] Speaker 05:
right if there are no more questions.

[00:19:35] Speaker 03:
If Judge Taylor is done, I had one more question.

[00:19:38] Speaker 03:
And that is it's pretty established rule of statutory construction for separation of powers reasons that no money is going, courts will not construe a statute to take money out of the treasury unless Congress has been said so specifically.

[00:19:58] Speaker 03:
And we know from E5 in the statute, 20144 E5, that when Congress wants to appropriate funds from the treasury for this statute, it says so in plain terms.

[00:20:13] Speaker 03:
There is appropriated to the fund out of any money in the treasury.

[00:20:18] Speaker 03:
That was the initial distribution.

[00:20:22] Speaker 03:
That isn't what the language that you're relying on looks like.

[00:20:27] Speaker 03:
at all.

[00:20:28] Speaker 03:
And I understand your argument, right?

[00:20:31] Speaker 03:
If someone doesn't pick up the Clarification Act and see that effective date and you just read the statute, I understand your argument, but there is the Clarification Act.

[00:20:43] Speaker 03:
There is a language in E2 that says these payments are going to supposed to start at beginning December 18th, 2015, which can't possibly happen with respect to the 75% and 50%.

[00:20:56] Speaker 03:
They can't go back

[00:20:59] Speaker 03:
verification has actually, you can't start until 2019 and this statute says you're supposed to start in 2015.

[00:21:04] Speaker 03:
It's an impossibility.

[00:21:06] Speaker 03:
So given that, isn't there, how can we say that Congress has specifically in the text you point to or other texts you want to point me to now, appropriated funds out of the treasury to make up that difference that you think should be made up now?

[00:21:28] Speaker 01:
I suggest the answer there is clear.

[00:21:31] Speaker 01:
We're not talking about general appropriated funds out of the treasury.

[00:21:35] Speaker 01:
We're talking about earmarked funds coming from sanctions, forfeiture, whatever, which was separate and distinct accounts.

[00:21:43] Speaker 03:
And- No, but that money went into the treasury, right?

[00:21:46] Speaker 03:
The extra 50, the 50 initially between December 15th, 2015 and November, 2019 at the Clarification Act,

[00:21:55] Speaker 03:
50% went into this fund and 50% went into the treasury.

[00:21:58] Speaker 03:
And under your reading of the statute, you'll say this language tells a court, you want this court to order the special master, the government to go get that make up 25%, get you to 75% for the span of four years to make it up from December 2015 to 2019, make up that, get it out of the general treasury.

[00:22:24] Speaker 01:
I'm suggesting it does not come out of a general treasury.

[00:22:31] Speaker 01:
It comes out of this fund, these escrowed funds, these forfeiture funds that it kept in a separate- They're not escrowed.

[00:22:41] Speaker 03:
First of all, put aside the forfeiture ones, because it's not all that.

[00:22:44] Speaker 03:
It's also penalties.

[00:22:47] Speaker 03:
Do you have evidence that they've been escrowed since they were first paid?

[00:22:51] Speaker 01:
Well, footnote two,

[00:22:54] Speaker 01:
on page 29 of the government's brief, they indicate that they were escrowed.

[00:23:00] Speaker 01:
Second.

[00:23:05] Speaker 03:
They're talking about the forfeiture, the ones that have been forfeited.

[00:23:08] Speaker 03:
I said not the forfeited ones, the penalties.

[00:23:12] Speaker 01:
Correct.

[00:23:12] Speaker 03:
It's beside forfeiture for the moment.

[00:23:13] Speaker 03:
There's been no escrow.

[00:23:16] Speaker 01:
The government indicated on footnote two that they set those funds aside.

[00:23:20] Speaker 03:
Okay.

[00:23:21] Speaker 03:
That's great.

[00:23:22] Speaker 03:
I will ask them to clarify that.

[00:23:24] Speaker 01:
Okay.

[00:23:25] Speaker 03:
And then that didn't happen.

[00:23:27] Speaker 03:
Oh, go ahead.

[00:23:27] Speaker 03:
You have a second.

[00:23:28] Speaker 01:
And if that didn't happen, there's always this mass of funds waiting to move out.

[00:23:34] Speaker 01:
Some of it moves out to the victims of state sponsors of terrorism fund, which is for the benefit and Congress's intent was this is to the benefit of victims of terrorism and the rest of it.

[00:23:45] Speaker 01:
be it 50% or 25% goes into a discretionary account, not subject to congressional action, but not the general funds of the Treasury, but a discretionary account of the Department of Justice.

[00:24:01] Speaker 01:
What we're saying is that massive funds

[00:24:06] Speaker 01:
To follow the congressional intent, the goal of helping victims of terrorism is to take precedence and use those monies in that account, be it to make up this difference and in the future to go forward.

[00:24:23] Speaker 03:
So you say there's a separate account, it's not the treasury, it's not this fund, there's another fund where

[00:24:30] Speaker 01:
That's when it appears based on the language in the briefing and our understanding of it, that whatever is not used for this is a discretionary account of the Department of Justice.

[00:24:44] Speaker 01:
They use it to make grants and what have you.

[00:24:48] Speaker 05:
Thank you.

[00:24:50] Speaker 05:
Thank you.

[00:24:50] Speaker 05:
Mr. Koppel, good morning.

[00:24:52] Speaker 00:
Good morning, Your Honors.

[00:24:55] Speaker 00:
May it please the Court, I'm Josh Koppel on behalf of the United States.

[00:24:59] Speaker 00:
As relevant here, the Victims of State Sponsored Terrorism Act made two distinct appropriations.

[00:25:04] Speaker 00:
First, in subsection E5, Congress appropriated to the BSST fund $1.025 billion out of any money in the treasury not otherwise appropriated, that is out of the general fund.

[00:25:16] Speaker 00:
Second, in subsection E2A2, Congress appropriated 50% of certain civil penalties or fines forfeited or paid to the United States after December 18th, 2015.

[00:25:27] Speaker 00:
The first of these provisions appropriates money already in the treasury.

[00:25:32] Speaker 00:
The second sets up a scheme for determining how incoming receipts should be allocated among various government funds.

[00:25:40] Speaker 00:
And because subsection E2 is designed to allocate incoming receipts, the Clarification Act's amendment of the provision in 2019 increasing the percentage of receipts that should be devoted to the VSST fund

[00:25:53] Speaker 00:
necessarily only affects the allocation of civil fines and penalties paid after enactment of the Clarification Act.

[00:26:00] Speaker 00:
If Congress had intended in 2019 to allocate additional money already held by the government, it would have done so in the same way it did so in the original VSST Act using the language of subsection E5.

[00:26:14] Speaker 00:
That understanding of the statute is consistent with Congress's identification of the source of ongoing funding for the VSST fund.

[00:26:21] Speaker 00:
Subsection E2 states that a percentage of the civil penalties and fines themselves is to be deposited into the VSST fund.

[00:26:30] Speaker 03:
Do you respond to their understanding of your footnote too?

[00:26:34] Speaker 03:
In your brief, they seem to think that at least amicus, and we can't attribute it to Mr. Tolkien, but seem to think there's another fund or at least forfeiture monies just sit there year after year if unused.

[00:26:48] Speaker 00:
That's not correct.

[00:26:50] Speaker 00:
So what we're saying in that footnote is that there were two assets that had recently, prior to the passage of the Clarification Act, recently been forfeited.

[00:27:01] Speaker 00:
50% of the funds were sent to the VSST fund.

[00:27:06] Speaker 00:
And the assets forfeiture fund staff at the Department of Justice was in the process of divvying up the other 50%.

[00:27:12] Speaker 00:
So sharing it with local

[00:27:14] Speaker 00:
partners and other federal agency partners.

[00:27:17] Speaker 00:
When this litigation was filed, the DOJ assets forfeiture fund paused that process and held on to those funds in case there was an adverse judgment in this case.

[00:27:26] Speaker 00:
But that's just with regard to two particular forfeitures that comprise a very small portion of the total amount of civil fines and penalties paid between 2015 and 2019.

[00:27:38] Speaker 00:
All the civil fines and penalties themselves were split between the BSST fund and the general fund

[00:27:44] Speaker 00:
Forfeitures that went into the treasury forfeiture fund, those went into the fund itself.

[00:27:49] Speaker 00:
They were spent as permitted and required by statute or rescinded by Congress.

[00:27:53] Speaker 00:
And the same with, I believe, some of the forfeitures that went into the assets forfeiture fund as well.

[00:27:59] Speaker 04:
So do I hear you?

[00:28:01] Speaker 04:
So what you're saying then is that if the court were to rule that the 25% increase is retroactive, that money would have to come out of general treasury.

[00:28:13] Speaker 04:
Right.

[00:28:14] Speaker 04:
There's no funds set aside for that.

[00:28:17] Speaker 00:
That's right.

[00:28:18] Speaker 00:
There's there's no money set aside for that.

[00:28:21] Speaker 00:
There's a small, very small portion.

[00:28:24] Speaker 00:
But, you know, miniscule compared to the whole.

[00:28:27] Speaker 00:
That's right.

[00:28:27] Speaker 04:
I have a couple of I'm sorry, Judge, did you want to pursue that issue?

[00:28:33] Speaker 04:
Go ahead.

[00:28:33] Speaker 04:
No, go ahead.

[00:28:35] Speaker 04:
Oh, I just wanted to ask you a few other clarifying questions if I could.

[00:28:39] Speaker 04:
And would you please just go back to basics and tell us about.

[00:28:44] Speaker 04:
the government's view about authorized versus payment and how this works.

[00:28:48] Speaker 04:
Just explain it to us, would you please?

[00:28:50] Speaker 00:
Sure.

[00:28:51] Speaker 00:
So when the statute creates a deadline for authorizing payment, that means that is the deadline for when the special master has to make an initial eligibility determination on all claims that have been submitted by the application deadline for that round of distributions.

[00:29:06] Speaker 04:
Well, let me just interrupt you.

[00:29:07] Speaker 04:
The plaintiff says that there's only one eligibility determination made at the beginning and then none after that.

[00:29:14] Speaker 04:
Is that accurate?

[00:29:15] Speaker 00:
That's correct.

[00:29:17] Speaker 04:
That is correct.

[00:29:18] Speaker 04:
So that means, so under your theory, on January 1st, the special master authorizes amounts to eligible claims, correct?

[00:29:33] Speaker 00:
That's right.

[00:29:35] Speaker 04:
And then the payment is made later after the prorated calculations are done, is that the way it works?

[00:29:43] Speaker 00:
So after the special master makes the initial eligibility determination, the claimant has 30 days, if their claim has been denied in whole or in part, they have 30 days to seek a hearing.

[00:29:53] Speaker 00:
Well, suppose it's been granted.

[00:29:56] Speaker 00:
So the special master has to still hold hearings for those whose claims have been denied, make a final written decision as to their claims, because only once

[00:30:07] Speaker 00:
can the pro rata calculation be made?

[00:30:10] Speaker 04:
That's helpful.

[00:30:11] Speaker 04:
Okay.

[00:30:12] Speaker 04:
So I see.

[00:30:13] Speaker 04:
And then, and so just explain mechanically once an amount is authorized and the claims hearings are completed and the special master makes the pro rata calculation, who makes the actual payment?

[00:30:34] Speaker 04:
How does that happen?

[00:30:36] Speaker 00:
I believe it comes from treasury, the funds are sent to an intermediary bank and from there they go to the claimants.

[00:30:45] Speaker 04:
Okay, so the treasury takes the authorization order from the special panel and that's what authorizes the treasury to disperse the money to the bank, correct?

[00:30:58] Speaker 00:
I believe that's right.

[00:31:01] Speaker 00:
They receive an instruction to issue payment.

[00:31:06] Speaker 00:
I'm not certain about the mechanics of how the money moves between the treasury and the banks.

[00:31:11] Speaker 04:
But all we need to know here is the special master doesn't make the payment, right?

[00:31:21] Speaker 00:
I believe that it's done by treasury.

[00:31:24] Speaker 04:
Yeah, okay.

[00:31:26] Speaker 04:
And please, one other clarifying question.

[00:31:29] Speaker 04:
Suppose the fund, this is the reverse of the question Judge Milet asked, not the reverse, same question, different numbers.

[00:31:35] Speaker 04:
Suppose the fund has a, after set asides and administrative expenses, suppose the fund has $110 million.

[00:31:45] Speaker 04:
Does the special manager have to distribute that $10 million?

[00:31:50] Speaker 00:
A special master then has to make a determination in her discretion whether it is worthwhile to make a distribution considering the administrative costs.

[00:32:00] Speaker 04:
But I thought the statute said, if funds are available.

[00:32:05] Speaker 04:
So my question is, after deducting administrative expenses and other sets sides, there's $10 million.

[00:32:15] Speaker 04:
Isn't that the $10 million that's available?

[00:32:20] Speaker 00:
The $100 million threshold is for when the attorney general has to appoint a special master.

[00:32:25] Speaker 00:
It's not for when the special master has to issue distribution.

[00:32:28] Speaker 00:
And just as the special master has discretion whether to issue distribution, whether there's $1 of unreserved balance in the fund, the special master also has that discretion at $100 million.

[00:32:39] Speaker 04:
It could be- Suppose there's $200 million in the fund.

[00:32:42] Speaker 00:
Yeah, I understand what your honor is getting at.

[00:32:44] Speaker 00:
And there, you know, there very well could be a point at which the special master would abuse her discretion by not issuing a distribution.

[00:32:50] Speaker 00:
That's not the claim the plaintiff has has alleged here.

[00:32:54] Speaker 04:
I totally understand that.

[00:32:55] Speaker 04:
I was just trying to get you to help me understand how this thing works.

[00:32:59] Speaker 04:
That's all.

[00:32:59] Speaker 04:
But you acknowledge that there could be a point at which there is an abuse of discretion in terms of the distribution of money in the fund, right?

[00:33:09] Speaker 00:
That's right.

[00:33:10] Speaker 00:
Whether there's a distribution of money for that is a separate question.

[00:33:16] Speaker 03:
I just want to follow up on Judge Tatel's done.

[00:33:20] Speaker 03:
I just want to clarify one more thing.

[00:33:23] Speaker 03:
Does the special master have to keep $100 million balance there at all times, or if there's 150 million, the special master can distribute.

[00:33:31] Speaker 03:
Let's assume there's no, set aside, there's $150 million after all your reservations and all your administrative costs.

[00:33:39] Speaker 03:
So there's $150 million clear.

[00:33:43] Speaker 03:
The special master can distribute that full $150 million, doesn't have to keep.

[00:33:48] Speaker 03:
There's no obligation to keep a $100 million baseline in the account.

[00:33:51] Speaker 00:
That's correct.

[00:33:52] Speaker 00:
So what the special master has to keep is the amount set aside for conditional claimants and administrative expenses.

[00:33:57] Speaker 00:
The conditional claimant piece itself is well in excess of $80 million in administrative expenses.

[00:34:03] Speaker 03:
Are there any more conditional claimants coming in at this point, or is that pretty much set?

[00:34:07] Speaker 00:
I know that there were additional conditional claimants in the third round distribution.

[00:34:10] Speaker 00:
I'm not sure whether there will be in future rounds of distribution.

[00:34:16] Speaker 03:
And then on your definition, you finish up.

[00:34:20] Speaker 03:
I was going to, I was going to ask something different.

[00:34:21] Speaker 03:
So if you're still something different too.

[00:34:24] Speaker 03:
Okay.

[00:34:25] Speaker 03:
Well, I was, I wanted to follow up on your position that authorized payment means that determination of eligibility.

[00:34:35] Speaker 03:
And it's a little hard to wrestle with a statutory tax because there's a whole separate provision for determining eligibility.

[00:34:45] Speaker 03:
And eligibility to receive a payment is not the same thing as authority to make a payment.

[00:34:52] Speaker 03:
So it seems a very a textual definition and it seems like your, your very eligibility letter itself when you sent to Mr Braun says you know you're eligible and you will be notified about the exact amount of your payment after the special master.

[00:35:07] Speaker 03:
authorizes the next distribution.

[00:35:09] Speaker 03:
So the special master herself or himself has been using this phrase authorized distinct from determining

[00:35:16] Speaker 03:
eligibility.

[00:35:18] Speaker 03:
Is it really your position that you authorized payment to Mr. Braun back in 2017 when he was first, within the meaning of the statute, determined to be eligible?

[00:35:32] Speaker 03:
Or is it your position that when there was that follow-up letter shortly, a month or so before payment that says, we've determined there can be a payment, here's your pro rata share,

[00:35:44] Speaker 03:
go on the website and put in your bank account information.

[00:35:48] Speaker 03:
Which of those two do you think is the special, or some third step, special master authorizing payment?

[00:35:56] Speaker 00:
Payment to Mr. Rogers authorized when the special master determined that his claim was eligible for payment.

[00:36:02] Speaker 00:
And that's the only, that understanding of authorized payment, which to be clear is different from authorizing a distribution, but that's the only, that construction of authorized payment is the only way to harmonize the disparate provisions of the statute.

[00:36:15] Speaker 00:
So take the third round distribution.

[00:36:17] Speaker 00:
Congress said that the application deadline for the third round distribution was 90 days after the effective data clarification act.

[00:36:25] Speaker 00:
And then the special master should authorize payment 90 days after that.

[00:36:29] Speaker 00:
So there's 90 days between application deadline and authorizing payment.

[00:36:32] Speaker 00:
At the same time, other parts of the statute provide that after the special master makes an initial eligibility determination, the claimant has 30 days, if their claim is denied, to seek a hearing.

[00:36:44] Speaker 00:
And after the hearing- Well, I understand, but wait, wait.

[00:36:45] Speaker 03:
If I can back you up there, as Judge Taylor pointed out early on, that the provision about a report to Congress envisions the payments can be made while certain claims are still getting sorted out, right?

[00:36:58] Speaker 03:
Because it says, tell us which payments have been made and which ones have not yet been made.

[00:37:03] Speaker 03:
And it seems to be very strange to say authorized payment is the same thing as determined eligibility, as opposed to, you know, what do you call that letter when they say, here, you're going to get this payment, here's the dollars you're going to get?

[00:37:17] Speaker 00:
That's a notification of the amount that a claimant is going to receive in a given round of distribution.

[00:37:24] Speaker 03:
And then after that, what does this, follow up on Judge Table's question, after that, the special master must,

[00:37:30] Speaker 03:
sign something, do something to inform Treasury that it's time to make payments and here's the amounts, right?

[00:37:39] Speaker 00:
That's right.

[00:37:39] Speaker 03:
Right.

[00:37:39] Speaker 03:
Why isn't that the most natural, whatever that is, whatever paperwork that involves, why isn't that the most natural reading of authorized payment?

[00:37:50] Speaker 00:
So again, that doesn't harmonize the disparate provisions of statute because there's

[00:37:56] Speaker 00:
special master could have reached that point within 90 days.

[00:38:00] Speaker 03:
That happened for a third distribution.

[00:38:04] Speaker 03:
At some point, I put aside the deadlines, at some point the special master had sorted enough things out that she then said, I think it was she at that point, she then said,

[00:38:15] Speaker 03:
whatever form she did to someone at treasury here she was to get paid and here's how much they are to get correct that happened that event happened and they that's that is not the most natural meaning of authorizing payment when she authorized payment from the treasury to the individuals

[00:38:33] Speaker 00:
No, Your Honor.

[00:38:34] Speaker 00:
I think that there are a number of ways that a person could interpret authorized payment.

[00:38:38] Speaker 00:
The one, again, that harmonizes the various deadlines in the Act, the only one that would have been possible within the 90-day deadline to authorize payment is to make that initial eligibility determination.

[00:38:49] Speaker 04:
Then you have said... I'm sorry to interrupt, but I thought I was following you until you said what you just said.

[00:38:57] Speaker 04:
The plaintiff received his eligibility letter years ago, right?

[00:39:04] Speaker 00:
That's right.

[00:39:05] Speaker 04:
So the only thing that has to happen for him to get future payments is two steps.

[00:39:10] Speaker 04:
Number one, the special master authorizes payments from a fund.

[00:39:17] Speaker 04:
And then after all the hearings are over and the pro rata calculation done, he gets paid, right?

[00:39:28] Speaker 00:
That's right.

[00:39:29] Speaker 04:
Do I understand that?

[00:39:30] Speaker 04:
So authorized doesn't mean eligibility.

[00:39:36] Speaker 04:
The authorization is made to people who have previously been determined to be eligible, correct?

[00:39:44] Speaker 00:
I'm sorry, I'm not sure I understood that.

[00:39:47] Speaker 04:
The authorization that occurs on January 1.

[00:39:51] Speaker 04:
for a group of claimants, those are authorizations for claimants who have previously been determined to be eligible, correct?

[00:40:00] Speaker 00:
No, those are, so any claimants... Take the plaintiff, not a new claimant.

[00:40:08] Speaker 04:
I don't mean a new one.

[00:40:09] Speaker 04:
I mean, take plaintiff, for example.

[00:40:12] Speaker 04:
He was determined, the plaintiff in this case, he was determined to be eligible years ago, correct?

[00:40:17] Speaker 04:
along with a lot of other points, right?

[00:40:19] Speaker 04:
Thousands of others.

[00:40:20] Speaker 04:
That's right.

[00:40:21] Speaker 04:
Now, with respect to that group of people, what happens on January 1 is if there's money, they get first an authorization, correct?

[00:40:32] Speaker 00:
So their payment was already authorized, payment to their claim was already authorized years ago.

[00:40:39] Speaker 00:
January 1 sets the deadline for

[00:40:43] Speaker 03:
authorize payment for any remaining individuals who are going to participate in the special master cannot authorize payment as a matter of law.

[00:40:55] Speaker 03:
Just by finding people eligible special master also has to find there's enough funds, putting aside reserve funds, there's enough funds

[00:41:03] Speaker 03:
And if your position has been made that discretionary judgment, that has to happen too.

[00:41:09] Speaker 03:
Eligibility does not authorize payment.

[00:41:12] Speaker 03:
There has to be a determination that a payment will be made.

[00:41:14] Speaker 03:
And then there has to be a determination that there's what the amounts are going to be because it has to be done pro rata.

[00:41:22] Speaker 03:
All of that has to be done before payment is authorized.

[00:41:27] Speaker 03:
Just being eligible does not, you could be eligible and just imagine there was just never enough money in the fund.

[00:41:35] Speaker 03:
No one's payments authorized.

[00:41:38] Speaker 05:
Mr. Koppel, let me weigh in here.

[00:41:40] Speaker 05:
And that is, I don't see why there's a difficulty in differentiating between authorization and expenditure.

[00:41:51] Speaker 05:
And in fact, the sunset provision actually says

[00:41:55] Speaker 05:
divides them effective on the day after all amounts authorized to be paid are expended.

[00:42:04] Speaker 05:
So there is the action of authorization and then there is the action of cutting the check of expending the funds.

[00:42:20] Speaker 05:
I don't see why you're not making that argument.

[00:42:24] Speaker 00:
We absolutely agree with that position, Judge Henderson.

[00:42:27] Speaker 00:
That's absolutely right.

[00:42:28] Speaker 00:
Authorizing payment does not mean issuing payment.

[00:42:32] Speaker 00:
The best way to understand the term authorized payment, the way that the SST fund has and the special master have understood in the past and have reported to Congress this understanding is that they authorize payment on a claim when the special master makes a determination of the eligibility of that claim.

[00:42:48] Speaker 00:
Payment isn't actually issued until the special master determines that there are funds available

[00:42:53] Speaker 00:
There's money available in the VST fund authorizes the distribution and and performs the pro rata calculation.

[00:43:01] Speaker 00:
The special master authorizes payment on a claim when she determines that the claim is eligible for payment.

[00:43:06] Speaker 00:
That's how that is again how the special master has applied.

[00:43:10] Speaker 00:
this has interpreted and has effectuated the statute in the past, Congress understanding that, and they understand this because they received the reports from the special master that laid that out, they use that same term authorized payment in the Clarification Act, thereby adopting or ratifying the VST funds construction of the statute.

[00:43:34] Speaker 04:
All right, can we go back to just the language of the statute here?

[00:43:37] Speaker 04:
So it says,

[00:43:39] Speaker 04:
January 1st and 2nd calendar year begins after the date of initial payments.

[00:43:42] Speaker 04:
That's where we are now, right?

[00:43:45] Speaker 04:
Okay, funds are available on the fund.

[00:43:47] Speaker 04:
Special master, okay, shall authorize additional payments on a pro rata basis.

[00:43:52] Speaker 04:
So on January 1st of this year, the special master authorized additional payments on a pro rata basis, right?

[00:44:07] Speaker 00:
In this particular year, the special master determined there weren't sufficient.

[00:44:10] Speaker 04:
No, I'm sorry.

[00:44:11] Speaker 04:
I'm good correction.

[00:44:13] Speaker 04:
Let's assume there was money.

[00:44:14] Speaker 04:
Okay.

[00:44:15] Speaker 00:
Yeah.

[00:44:16] Speaker 04:
So January one, the special master would authorize additional payments on a program.

[00:44:22] Speaker 04:
So what would the letter say?

[00:44:24] Speaker 04:
It would say what you are, you'll get another payment this year.

[00:44:29] Speaker 00:
So the special master announces that there will be a distribution this year.

[00:44:32] Speaker 00:
And by January 1st has to issue a decision on the application of any claimant who has submitted his or her claim by the deadline set by either statute or the special master.

[00:44:43] Speaker 04:
What will that letter say on the January one?

[00:44:45] Speaker 04:
Will it say you will get a pro rata?

[00:44:49] Speaker 04:
Is that what it will say?

[00:44:50] Speaker 00:
It will say that your claim has been deemed eligible or your claim has not been deemed eligible.

[00:44:54] Speaker 00:
You have 30 days to seek a hearing.

[00:44:57] Speaker 04:
Okay, and the pro rata calculation is made later, right?

[00:45:03] Speaker 04:
That's right.

[00:45:03] Speaker 04:
So then... You know how much there is.

[00:45:06] Speaker 04:
Okay.

[00:45:07] Speaker 00:
That's right.

[00:45:07] Speaker 00:
So then the claimant has 30 days to seek a hearing.

[00:45:10] Speaker 00:
After the hearing, the special master has 90 days to issue a final written decision.

[00:45:13] Speaker 00:
Only once all claims have been finally decided can that pro rata calculation be performed, and then payments can issue.

[00:45:22] Speaker 04:
Let me ask you one other question that relates to the blizzard of 28 J letters we got today.

[00:45:32] Speaker 04:
And that has to do with whether or not the attorney general has in fact appointed a master.

[00:45:49] Speaker 04:
You say the master was extended, right?

[00:45:52] Speaker 04:
There is a master now, correct?

[00:45:54] Speaker 00:
That's correct.

[00:45:55] Speaker 00:
The special master's term has been extended for an additional year.

[00:46:01] Speaker 04:
What is your view of what we should do with this 28-J letter from the plaintiff about this?

[00:46:13] Speaker 04:
Our argument in the district court was this claim was moot because the district court said

[00:46:19] Speaker 04:
This is a claim that was the district court considered to be moved correct.

[00:46:23] Speaker 00:
That's right, and plaintiff has forfeited and waived any challenge to dismissal this claim seeking the appointment of a special master.

[00:46:30] Speaker 00:
He didn't argue exception to move us in the district court and the Court of Appeals here he actually said he confirmed, he admitted that the

[00:46:39] Speaker 00:
If a new injury has occurred, plaintiff has to file a new complaint.

[00:46:44] Speaker 04:
It has way back.

[00:46:46] Speaker 04:
That's all.

[00:46:46] Speaker 03:
Can I ask one follow-up on that?

[00:46:49] Speaker 03:
Yeah, one follow-up on that.

[00:46:50] Speaker 03:
Was the special master's term extended by the attorney general?

[00:46:53] Speaker 00:
My understanding is that it was not done by the attorney general over the weekend since plaintiff first raised this issue.

[00:46:58] Speaker 00:
I haven't been able to determine definitively which official it was that extended the special master's term.

[00:47:03] Speaker 03:
The Justice Department hadn't figured it out beforehand that the special master's term had expired?

[00:47:08] Speaker 00:
A justice department official had extended the special master's term back in December.

[00:47:15] Speaker 00:
I believe it was the assistant attorney general for the criminal division that authorized that, but I haven't been able to obtain a definitive answer on who that was over the weekend.

[00:47:25] Speaker 03:
Has there been an internal delegation from the attorney general to allow the, you said the associate attorney general for the criminal division?

[00:47:33] Speaker 03:
Assistant attorney general.

[00:47:34] Speaker 03:
Assistant attorney general to make this decision?

[00:47:38] Speaker 00:
I'm not sure, I haven't been able to.

[00:47:41] Speaker 04:
Your point is, your point is, your point I take it is, your bottom line is, if there's anything here, it's up to the district court, right?

[00:47:50] Speaker 00:
Well, it's up to the district court on a new complaint, right?

[00:47:53] Speaker 00:
The claim was dismissed.

[00:47:54] Speaker 04:
I didn't say that, you said, your point is, it's just not before us right now, right?

[00:47:59] Speaker 00:
That's right.

[00:48:01] Speaker 04:
Great, thank you.

[00:48:03] Speaker 05:
All right, thank you, Mr. Koppel.

[00:48:07] Speaker 04:
Oh, wait, I'm sorry, Judge Henderson.

[00:48:10] Speaker 04:
Can I ask him one more question?

[00:48:13] Speaker 04:
Would you please explain the government's view of this section HI that was the subject of the other 20 HA letter?

[00:48:27] Speaker 04:
What is the government's view about what this is within 30 days after authorizing the payment?

[00:48:34] Speaker 04:
Shall submit a report to Congress

[00:48:36] Speaker 04:
on the payment of eligible claims, which suggests the payments have been being made since January 1.

[00:48:44] Speaker 04:
And then when I asked counsel about the phrase, the amount of outstanding eligible claims, he said, I didn't have anything to do with this.

[00:48:56] Speaker 04:
What do you think this provision means?

[00:48:58] Speaker 00:
So Subsection I requires the special master to report to Congress on the status

[00:49:04] Speaker 00:
on a variety of data as of a given moment in time, 30 days after the deadline to authorize payments.

[00:49:09] Speaker 00:
That doesn't suggest that all payments will have necessarily had issued by that date, but that's when the special master has to issue the report to Congress.

[00:49:18] Speaker 00:
And the numbers will of course be updated in the next report whenever that occurs.

[00:49:23] Speaker 00:
So the way that the VST fund has operationalized this in the past is with the first round of distributions 30 days after the deadline to authorize payment, the special master sent a report to Congress

[00:49:33] Speaker 00:
Payments had not yet issued, and so after they did issue, the special master sent a supplemental report to Congress with updated numbers.

[00:49:41] Speaker 05:
OK, thanks again.

[00:49:42] Speaker 05:
Thank you.

[00:49:44] Speaker 05:
Sorry, Mr. Tulchin, why don't you take two minutes?

[00:49:48] Speaker 02:
I'll try to stay within that very quickly.

[00:49:50] Speaker 02:
When I filed this case in the district court, there was no special master.

[00:49:54] Speaker 02:
They appointed a special master while the case was pending.

[00:49:57] Speaker 02:
That's what made the issue moot.

[00:49:59] Speaker 02:
If I'm correct that the special master's term expired while the appeal is pending, that puts us back to where we were when I filed this complaint.

[00:50:08] Speaker 02:
And I can understand if the court could address it de novo, the court could remand that issue, but I don't believe a new complaint is necessary, but it should call into question in the court's mind, I believe, what Mr. Capel is telling us about the position of the special master, if in fact there is no special master.

[00:50:27] Speaker 02:
That's all I wanna say on that point.

[00:50:29] Speaker 02:
I want to briefly talk about the effective date issue.

[00:50:34] Speaker 02:
Judge, to tell the section and the amendments made by this section shall take effect on the date of the amendment of this act means that the change from 50 to 75% happens on the effective date of this act.

[00:50:49] Speaker 02:
Of course, we don't go back in time

[00:50:52] Speaker 02:
to people who got distributions in 2015 and give them money that they weren't entitled to by the allocation at that time.

[00:50:59] Speaker 03:
Why not?

[00:51:01] Speaker 03:
Why isn't that what the plain language requires?

[00:51:03] Speaker 02:
Because what the plain language requires is that distributions be made within by January 1st of each year.

[00:51:10] Speaker 02:
So those ships have already set sail.

[00:51:13] Speaker 02:
But by making the amendment that we've changed 50 to 75... That would seem to cut against your point that we need to go back and make

[00:51:21] Speaker 03:
the 50% be 75% since 2015.

[00:51:24] Speaker 03:
The shift has already failed, payments have already been made.

[00:51:29] Speaker 03:
And so as the Clarification Act said, we're just going to start with a new rule in 2019 going forward.

[00:51:36] Speaker 02:
The problem with that is the thing that becomes effective on the effective date of the Clarification Act is a statute that says,

[00:51:46] Speaker 02:
75% of the funds were not forfeited or paid to the United States.

[00:51:51] Speaker 03:
No, we have to read whole statutes.

[00:51:53] Speaker 03:
We don't read statutes in little pieces.

[00:51:55] Speaker 03:
We have to read the whole statute.

[00:51:57] Speaker 03:
So under your theory, we would have to go back and start at least with section two and say beginning on December 18, 2015,

[00:52:03] Speaker 03:
this is what should happen.

[00:52:04] Speaker 03:
If you read the statute as you want us to, we begin on December 18, 2015, and then we get to Romanette 2 and say, beginning on December 18, 2015, 75% shall go.

[00:52:20] Speaker 03:
You can't just look at it in isolation.

[00:52:22] Speaker 02:
I agree that you have to read the whole statute.

[00:52:24] Speaker 02:
But when you have a clarification act that's changing one provision, you have to look at the thing that's being changed.

[00:52:29] Speaker 02:
And it did not say change 50% to 75%

[00:52:34] Speaker 02:
from the effective date of the clarification act.

[00:52:36] Speaker 02:
It was left saying 50 to 75 percent of the funds deposited after December 18, 2015.

[00:52:44] Speaker 02:
That's the law as it's written.

[00:52:46] Speaker 02:
If somebody beamed down from Mars and led the statute, that's what he would see from it.

[00:52:51] Speaker 02:
He does it without bringing in any other outside information.

[00:52:56] Speaker 02:
The statute itself says now 75 percent from 2015, not from the effective date of the clarification

[00:53:03] Speaker 02:
and I am a minute and a half over on my two minutes, so I don't want to.

[00:53:08] Speaker 05:
All right.

[00:53:08] Speaker 05:
Mr. Goldman, why don't you take two minutes?

[00:53:13] Speaker 05:
Unmute yourself.

[00:53:16] Speaker 01:
Thank you.

[00:53:18] Speaker 01:
Thank you, Your Honor.

[00:53:19] Speaker 01:
Thank you for the extra time.

[00:53:21] Speaker 01:
Again, I agree with what Mr. Tulchin just said.

[00:53:25] Speaker 01:
If you look at the statute, it talks about helping those who were in the fund before with a payment taking place.

[00:53:37] Speaker 01:
in 2019 or 2020.

[00:53:41] Speaker 01:
Doesn't talk about recomputing the numbers as to what people received earlier.

[00:53:46] Speaker 01:
Doesn't talk about disgorging attorney fees earlier or any of those other consequences.

[00:53:53] Speaker 01:
What it talks about is gathering a sum of money so that people could have a meaningful compensation.

[00:54:01] Speaker 01:
In the past, people got 4.2%.

[00:54:05] Speaker 01:
This year, 9-11 victims got 0.76%, three fourths of 1%.

[00:54:14] Speaker 01:
That's because there wasn't money moved as the statute said it should have.

[00:54:21] Speaker 03:
Congress- Mr. Koppel said that there isn't that fund of escrow money that you had thought you had referenced.

[00:54:31] Speaker 03:
Or if there is, it's so miniscule, it's not going to serve the function that you wanted to here.

[00:54:36] Speaker 03:
And so to be clear then, your theory, since that money is not there, let's assume the government's accurate about that.

[00:54:46] Speaker 03:
It's not there.

[00:54:48] Speaker 03:
Then there's no third fund.

[00:54:51] Speaker 03:
Then the only place to get this differential is

[00:54:55] Speaker 03:
the general fund.

[00:54:57] Speaker 01:
Is that correct?

[00:54:57] Speaker 01:
I think the question of the court is addressing is remedy.

[00:55:01] Speaker 01:
And I think based on Mr. Copple's unknowns, the words likely spent, the words how much is in there, then the question is remand.

[00:55:11] Speaker 01:
And then that's the determination of the remedy would be within the district court.

[00:55:18] Speaker 03:
I'm just asking you.

[00:55:19] Speaker 03:
I don't understand that answer other than we don't get to say it in district courts.

[00:55:27] Speaker 03:
go back, we won't get to say go back and you figure out what to do next.

[00:55:30] Speaker 03:
We say, if we'd have to say whether they could take money out of the general fund or not.

[00:55:35] Speaker 03:
That's a pure legal question that you, that this case seems to pose for us.

[00:55:39] Speaker 01:
I do not believe they can take funds out of the general fund.

[00:55:43] Speaker 01:
I believe that funds could be taken out of the funds that have been put aside coming from sanctions, money, fines and the like.

[00:55:54] Speaker 03:
So if they can't get the money from the general fund, then they just can't do what the statute plainly says to do under your view.

[00:56:01] Speaker 01:
I do not believe they can take it from the general fund, but I believe there could be a judgment entered and it comes out of the funds from forfeitures and the like, which is the funds that are to be split off.

[00:56:16] Speaker 05:
Okay, thank you.

[00:56:18] Speaker 05:
All right, thank you, gentlemen.

[00:56:20] Speaker 05:
Madam Clerk, if you'd call the next case.