[00:00:00] Speaker 00:
Case number 22-5080, Ed Al.

[00:00:03] Speaker 00:
Stephen M. Grimbaum, on behalf of himself individually, and as administrator of the estate of Judy Shoshana Lillian Grimbaum, deceased, Ed Al, at balance, versus Islamic Republic of Iran, Ed Al.

[00:00:17] Speaker 00:
Mr. Peter Sally, for the at balance, Mr. Hudat, for the Caribbean Republic, United States of America.

[00:00:23] Speaker 08:
Good morning.

[00:00:24] Speaker 08:
Good morning, Your Honors.

[00:00:25] Speaker 08:
Ambassador, sir, four minutes for rebuttal.

[00:00:27] Speaker 08:
May it please the court, Trita, the statute at issue here, clearly and unequivocally weighs the United States sovereign immunity.

[00:00:36] Speaker 08:
The statute only applies blocked assets that are assets that have been seized or frozen by the United States.

[00:00:44] Speaker 08:
By its plain text, it applies in every case and notwithstanding any other provision of law.

[00:00:51] Speaker 08:
It very carefully limits the United States' ability to immunize a small category of property and only if certain requirements are met.

[00:01:02] Speaker 08:
Allowing the United States to invoke its own sovereign immunity to otherwise immunize assets would render the statute ineffective.

[00:01:11] Speaker 08:
In an attempt to avoid this absurd result, the United States has invented the possession versus no possession distinction and read it into the statute.

[00:01:21] Speaker 08:
As this argument goes, assets that are possessed by the United States are covered by sovereign immunity, whereas assets that are possessed by others are not.

[00:01:31] Speaker 08:
And this gives the statute independent meaning as far as the United States is concerned.

[00:01:37] Speaker 01:
That's because I think the writ of attachment has a different object, does it not?

[00:01:42] Speaker 01:
If it's possessed by the United States, the writ of attachment gets served on the United States.

[00:01:48] Speaker 01:
If it is, say a bank is just, there's some

[00:01:51] Speaker 01:
of funds that are frozen pursuant to executive order or regulation by the bank.

[00:01:56] Speaker 01:
And if you wanted to get a writ of attachment for those, would it not be that the bank would be the object of the writ of amendment?

[00:02:02] Speaker 08:
There are certainly circumstances where other entities or people would ostensibly hold or possess the property that would be subject to a writ of attachment.

[00:02:11] Speaker 01:
That's what I'm asking.

[00:02:12] Speaker 01:
I'm actually more formal procedural question in that sense.

[00:02:16] Speaker 01:
The entity named in the writ of attachment on whom it has served and on whom it is operating, I assume, would be the bank in the second situation, I hypothesize, not the United States government, even if it's a federal directive or regulation that has caused the asset to be frozen?

[00:02:34] Speaker 01:
That is correct.

[00:02:34] Speaker 08:
In circumstances where a bank account is frozen and a bank account is held at Bank of America, for example, the writ would be served on Bank of America and not on the United States.

[00:02:46] Speaker 01:
But it's not really all that fictional.

[00:02:47] Speaker 01:
I mean, that just is if sovereign immunity applies when the government would be a defendant.

[00:02:51] Speaker 08:
It's not what it's not.

[00:02:52] Speaker 08:
It's fictional insofar as the statute very clearly applies in circumstances where the United States possesses property.

[00:03:00] Speaker 03:
And I think it's important.

[00:03:01] Speaker 03:
Doesn't that depend on whose property it is?

[00:03:03] Speaker 03:
I'm sorry?

[00:03:03] Speaker 03:
It depends on whose property it is.

[00:03:05] Speaker 08:
It would need to be Iran's property.

[00:03:07] Speaker 08:
But in circumstances where the United States happens to possess that property, the statute very clearly applies.

[00:03:15] Speaker 03:
if the United States possesses that Iranian property.

[00:03:19] Speaker 03:
Okay, well, we don't know if it's Iranian.

[00:03:21] Speaker 03:
There is an issue in the other proceeding.

[00:03:25] Speaker 08:
That's correct.

[00:03:26] Speaker 08:
There is an open question as to whether this property is actually Iran's or not.

[00:03:31] Speaker 08:
Why should we proceed with your... For the purposes of this case, though, the United States has conceded that at the point when it took the property... They can concede it, but that doesn't help them or help you.

[00:03:43] Speaker 03:
You're familiar with the Heiser case, right?

[00:03:45] Speaker 03:
I am, correct.

[00:03:46] Speaker 03:
Okay, so let me just read one sentence.

[00:03:48] Speaker 03:
Whether plaintiffs can attach the contested accounts depends on whether those accounts are the, quote, property, close quote, or, quote, blocked assets, close quote, of Iran.

[00:03:58] Speaker 08:
Correct.

[00:03:58] Speaker 08:
And when the United States sees these assets, there was no question that this was property of Iran.

[00:04:04] Speaker 08:
The United States has conceded that.

[00:04:06] Speaker 03:
This is about whether you can attach them.

[00:04:09] Speaker 03:
I'm sorry?

[00:04:10] Speaker 03:
This is about whether you can attach, not what the United States sees.

[00:04:14] Speaker 08:
Well, the statute only applies to property that the United States has seized or frozen.

[00:04:20] Speaker 03:
Iranian property that is just seized or frozen.

[00:04:22] Speaker 03:
That's correct, Your Honor.

[00:04:23] Speaker 03:
And what I'm trying to say.

[00:04:24] Speaker 03:
Why would we make an assumption, proceed on a case that could be an advisory opinion when the matter is going to be resolved in the companion case?

[00:04:31] Speaker 08:
It would not be proceeding on an assumption, Your Honor, when we submitted our initial application

[00:04:38] Speaker 08:
for the writs of attachment, we demonstrated satisfactory to Judge Lampart that these were Iranian assets.

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And when the United States moved to Quash, they said, for purposes of this motion, we are going to agree that when we seize the property, when the United States seized the property, the Iranian government had an ownership interest in that property.

[00:04:57] Speaker 08:
And so we had no obligation at that point, I think, having already satisfied Judge Lampart that this was Iranian property when we made our initial motion,

[00:05:05] Speaker 08:
to then additionally prove that the issue was no longer in dispute.

[00:05:08] Speaker 08:
So it wouldn't be an advisory opinion.

[00:05:10] Speaker 08:
At this point in time, we've demonstrated that the problem was Iranian.

[00:05:15] Speaker 03:
And you've demonstrated that the United States didn't object to that assumption, right?

[00:05:20] Speaker 01:
Well, the district court so ruled as well.

[00:05:22] Speaker 01:
The district court so ruled.

[00:05:23] Speaker 01:
That's right.

[00:05:24] Speaker 03:
And the assumption is... So ruled what?

[00:05:28] Speaker 08:
rule that the property was iranian that there was an iranian ownership interest in the property because when the property was seized it was owned by the islamic revolutionary guard hud scores and that and that was the basis of our initial motion was that binding in the forfeiture proceeding is that the united states has has alleged in the forfeiture proceeding that it was iranian property there is another there's another party there's another party who's disputing that but for our purposes i think there is a

[00:05:56] Speaker 08:
but a judicial finding that this is Iranian property when it was seized and that therefore the statute applies, but for the fact that the United States has claimed because it is in possession of the property, it's subject to the United States' own sovereign immunity.

[00:06:12] Speaker 02:
You don't think we should wait on the forfeiture action?

[00:06:15] Speaker 08:
The problem is, Your Honor, is that

[00:06:17] Speaker 02:
Because you have a notice of a right to intervene yourself and press these claims.

[00:06:21] Speaker 02:
Excuse me, I'm sorry.

[00:06:22] Speaker 02:
You have a notice of a right to intervene in that proceeding and press the claims.

[00:06:25] Speaker 02:
Correct.

[00:06:26] Speaker 08:
And our claim would be much stronger in that proceeding if we go in there with the writs that we have, right?

[00:06:32] Speaker 08:
Because we would then have a property interest that would be different than just a general unsecured creditor.

[00:06:36] Speaker 01:
Well, if you intervene now, you will go in there with the writs in hand.

[00:06:42] Speaker 08:
That's a step that has not been taken yet, given the posture of this case, one of the options.

[00:06:47] Speaker 01:
You have the rights in hand.

[00:06:48] Speaker 01:
They've been issued.

[00:06:49] Speaker 08:
We had the writs in hand.

[00:06:51] Speaker 08:
They were issued.

[00:06:52] Speaker 08:
They have now been quashed.

[00:06:54] Speaker 08:
So one of the options that we had in the event that the court was to vacate the order of quashing the writs would be to go back down.

[00:07:00] Speaker 08:
There might be some additional litigation that would need to happen in front of Judge Lampard.

[00:07:03] Speaker 08:
But then ultimately, we could, we do still have the option to go into the forefoot direction and seek to enforce the writs there.

[00:07:13] Speaker 08:
I do want to return to this point about the United States.

[00:07:17] Speaker 03:
When you do that,

[00:07:19] Speaker 03:
It will still be the burden of the forfeiture court that Judge Friedman could decide whether the assets are those of Iran or of Jira or of the other parties.

[00:07:34] Speaker 08:
We would still be able to hear whatever evidence comes in and decide whether or not the property is Iranian.

[00:07:40] Speaker 08:
But again, as for the current posture of our case, we have established satisfactory to Judge Lampark that the property is Iranian.

[00:07:48] Speaker 08:
And that is an issue that the United States did not raise.

[00:07:50] Speaker 03:
I understand that.

[00:07:51] Speaker 03:
I don't understand how it's going to help you in the forfeiture proceeding when the matter is going to be resolved in Nova.

[00:07:58] Speaker 08:
Because we would have our rates and our risk created a property interest that's different than if you just went in there.

[00:08:03] Speaker 03:
It's a property interest that's contingent on the outcome of the ownership dispute.

[00:08:08] Speaker 08:
Of course, but it's still in the event that we prevail and we prove up that these assets are in fact Iranian, having the rich would be very important because it would establish a concrete property interest.

[00:08:19] Speaker 03:
Are you a party in the forfeiture proceeding?

[00:08:22] Speaker 08:
Not yet, but we have reached an agreement with the United States prior to their motion to quash recognizing

[00:08:29] Speaker 08:
the importance of deciding whether or not the bribes were validly issued, that our time to intervene and to file proofs of claim or notice of claim, I forget exactly what they're called in the forfeiture action, is being held in abeyance pending resolution of these issues.

[00:08:44] Speaker 08:
So while we have not yet intervened in those forfeiture actions, because we haven't needed to, we do still have the ability to do so in the event that the court vacates the decision questioning the bribes.

[00:08:55] Speaker 01:
If we were to...

[00:08:58] Speaker 01:
grant your appeal, overturn the caution of the writs, and in that way reinstate, in some sense, Judge Lambert's decision as to this being Iranian property.

[00:09:10] Speaker 01:
And if Judge Friedman were to decide it wasn't Iranian property, whose property decision controls?

[00:09:21] Speaker 06:
It's important to understand the posture.

[00:09:24] Speaker 08:
We were at a very early stage here when the United States moved to Guam.

[00:09:28] Speaker 08:
So there are additional issues that could be litigated.

[00:09:31] Speaker 08:
And I think if in that scenario, if we were to go in front of Judge Friedman and he held a trial and there was some additional record, and he ultimately concluded that this was non-Iranian property, then we would lose because under the high... Even if you win your case here and go in there with your

[00:09:47] Speaker 01:
writs of attachment revived.

[00:09:48] Speaker 08:
Correct.

[00:09:49] Speaker 08:
I don't view a decision here vacating the motion to quash to be a judicial blessing, if you will, of the finding of the grainy government that was necessary to issue the writs.

[00:10:01] Speaker 01:
So if Judge Friedman's decision is going to control, then going in with writs based on a fact-finding that, as you said, is the best contingent,

[00:10:15] Speaker 01:
You know, it essentially means the Iranian list Judge Friedman says otherwise, that's the most you'd be going in with.

[00:10:20] Speaker 01:
I'm not quite sure how you're better off going in with bits of attachment that really have no power.

[00:10:26] Speaker 01:
Their force is going to depend entirely on what Judge Friedman says about them being Iranian property or not.

[00:10:32] Speaker 08:
Because under forfeiture law, and we have responses to this, so I don't want this to be viewed as any concession, under forfeiture law, ordinarily,

[00:10:42] Speaker 08:
A general unsecured predator does not have standing to contest forfeiture as an innocent owner or otherwise.

[00:10:48] Speaker 08:
So while we think that TRIA might address those issues, that's an open question that has not been resolved by any, certainly not by this court, by no public court that I'm aware of.

[00:10:58] Speaker 01:
And so going in there with a writ... I guess what I'm trying to understand, and I'm not an expert in this area at all, is if you go in there with a writ that's predicated on this being a fact finding that this is an Iranian property, but knowing that as a matter of law, that fact finding will evaporate if Judge Friedman decides the other way, then with that evaporation will go your writ and you'll still be standing there as a general and security predator.

[00:11:26] Speaker 01:
Your writ is predicated on

[00:11:28] Speaker 01:
a factual error that you have conceded will be overridden by Judge Friedman's decision.

[00:11:34] Speaker 01:
So I'm not sure how it gets you in any better position.

[00:11:36] Speaker 08:
In your scenario, Your Honor, it doesn't matter.

[00:11:39] Speaker 08:
I want you to think of a different scenario.

[00:11:41] Speaker 08:
You vacate Judge Lanford's decision washing, so we go in with the rents.

[00:11:46] Speaker 08:
And then we prove up that this is Iranian property.

[00:11:50] Speaker 08:
We have now established that this is Iranian property, and therefore it's subject to TRIA, and we have the rents.

[00:11:56] Speaker 08:
So we can establish that we are not simply general unsecured creditors, we have a concrete property interest.

[00:12:02] Speaker 08:
Now in a scenario where you vacate, we go back down,

[00:12:07] Speaker 08:
We go in front of Judge Friedman because our time to do so has not expired.

[00:12:12] Speaker 08:
He could say, well, I don't really care if this is Iranian property or not.

[00:12:15] Speaker 08:
You're a general and secure creditor.

[00:12:17] Speaker 08:
You don't have standing to challenge forfeiture, so we're going to dismiss you.

[00:12:20] Speaker 01:
But Judge Friedman will have long since granted you intervention already.

[00:12:23] Speaker 01:
Friedman will have already granted you intervention which makes you a party and your standing won't evaporate upon his decision on the merits.

[00:12:32] Speaker 08:
There's no guarantee that he would grant us the intervention motion.

[00:12:35] Speaker 08:
One of the objections might be you should not allow them to intervene because they are general and secure creditors and therefore they don't have standing to challenge forfeiture.

[00:12:44] Speaker 08:
And so having the writs is essentially a ticket into the forfeiture action

[00:12:49] Speaker 08:
one of a few different tickets that I think we would want.

[00:12:52] Speaker 01:
If the government were to agree not to oppose your intervention motion and forfeiture action, would that take care of the issue?

[00:12:59] Speaker 08:
I don't think so, Your Honor, because it's at least partially an Article III standing question.

[00:13:03] Speaker 08:
So I don't know that they can concede that we have standing in the forfeiture action.

[00:13:08] Speaker 08:
So I wouldn't be prepared to rest on that, even if they were willing to.

[00:13:13] Speaker 01:
But your standing could also rest, at least you have an argument that your standing would rest on Trio.

[00:13:18] Speaker 08:
If you affirm Judge Lampard, we would go in and say that the general insecure creditor general rule... You're not general, right.

[00:13:31] Speaker 08:
But again, having the writ would allow us to avoid that.

[00:13:35] Speaker 02:
And I do just want to... Should the district court have addressed sovereign immunity before this forfeiture argument issue was dealt with?

[00:13:44] Speaker 08:
Which district court?

[00:13:45] Speaker 02:
Breeden.

[00:13:47] Speaker 08:
The proceedings weren't in front of Judge Friedman.

[00:13:49] Speaker 08:
We had a case that was long pending in front of Judge Lampard, and Judge Lampard was the judge who issued the writs, and the United States intervened and moved to quash in there.

[00:14:00] Speaker 08:
So again, in discussion with the United States, we decided that it made more sense from a judicial resources standpoint to allow Judge Lampard to decide the

[00:14:11] Speaker 08:
underlying validity of the writs, at least insofar as the United States sovereign immunity is concerned.

[00:14:17] Speaker 08:
And that was a gaining issue that we wanted to address first.

[00:14:20] Speaker 03:
And that is certainly a jurisdictional question and one that, you know... Well, in terms of your digital economy, you're asking us to decide a series of questions, none of which will matter if it's not Iranian property.

[00:14:33] Speaker 08:
I don't necessarily disagree with that, Your Honor, but I think in any instance where you have a final decision, that is true, right?

[00:14:41] Speaker 08:
If you vacate a decision granting a motion for some re-judgment, you don't know whether the plaintiff will be able to prove out their case when it goes back down, but so that's something that's done all the time.

[00:14:54] Speaker 08:
And I view this as somewhat similar to that in the sense of there was a gaining jurisdictional challenge raised at the Bolivia grits

[00:15:02] Speaker 08:
And because of that, we're here.

[00:15:04] Speaker 08:
And so I think it would be an odd result, respectfully, if because there are additional questions that need to be resolved, we somehow lose this appeal just because Judge Lampard decided that the sovereign immunity applied, which is obviously a decision that we disagree with.

[00:15:22] Speaker 01:
Do you know what the timeframe is for Judge Friedman to act on this sort of basic question to whatever briefing

[00:15:30] Speaker 08:
I do not, Your Honor.

[00:15:32] Speaker 08:
The government certainly might have more insight into that.

[00:15:35] Speaker 08:
All I can say is we certainly monitor the docket and there's been no activity, so I don't even know if this party who has come in to challenge the Iranian government's ownership

[00:15:47] Speaker 08:
is still if they're still litigating their case or not.

[00:15:50] Speaker 01:
And certainly... And is this other party claiming that they own the oil?

[00:15:53] Speaker 01:
Is that what's going on?

[00:15:54] Speaker 01:
Was it totally clear from the briefing?

[00:15:56] Speaker 08:
We don't know that.

[00:15:57] Speaker 08:
I don't know for sure.

[00:15:58] Speaker 08:
They certainly think that it's not Iranian ownership, whether they had a charter or the actual owner or what interest they're claiming.

[00:16:05] Speaker 08:
I admittedly don't know that.

[00:16:08] Speaker 01:
Okay.

[00:16:09] Speaker 01:
Any other questions?

[00:16:11] Speaker 03:
I thought you implied earlier that there was a deadline for your intervention.

[00:16:16] Speaker 03:
I'm sorry.

[00:16:16] Speaker 03:
I thought you said earlier or implied there was a deadline for your intervention in the forfeiture court.

[00:16:21] Speaker 08:
There is, and if you bear with me, I can direct you to where it is in the record.

[00:16:25] Speaker 08:
I believe under the rules applicable to forfeiture, the United States has the ability to grant extensions of the time to file a notice of claim or an answer.

[00:16:38] Speaker 08:
And so if you look at

[00:16:40] Speaker 08:
That's the notice that the United States filed extending our claim deadline.

[00:16:50] Speaker 08:
That goes on to 234.

[00:16:51] Speaker 08:
At JA 236, Judge Friedman entered a minute order requesting some additional information.

[00:16:58] Speaker 08:
And then JA 238 to 239 is a United States response.

[00:17:04] Speaker 08:
And then after that response, there was no further inquiry from Judge Friedman.

[00:17:10] Speaker 02:
Just a little bit about your argument on sovereign immunity.

[00:17:12] Speaker 02:
It needs to be unequivocally expressed.

[00:17:16] Speaker 08:
That's correct.

[00:17:16] Speaker 08:
It doesn't need to be unequivocally expressed.

[00:17:18] Speaker 08:
And what I was trying to say before is.

[00:17:22] Speaker 08:
With respect to the possession, no possession issue, I think it's important to understand how TRIO works.

[00:17:28] Speaker 08:
TRIO says that blocked assets shall be subject to execution and blocked assets are defined as any asset seized or frozen by the United States.

[00:17:39] Speaker 08:
So it can just take even just that first piece, an asset that has been seized by the United States

[00:17:46] Speaker 08:
shall be subject to execution, that clearly and unequivocally applies to assets that are within the United States possession.

[00:17:55] Speaker 08:
And so I think when you layer that on top of all the other arguments we've made in our papers, arguments about the pervasive federal regulations that apply to assets that have been frozen, the argument of respect to the language in TRIA, it applies

[00:18:10] Speaker 08:
In every case, it applies notwithstanding any other provision of law.

[00:18:14] Speaker 08:
All of those provisions make clear and unequivocal the Congress's decision to waive the United States sovereign immunity, which under Supreme Court precedent does not need to use any particular types of magic first.

[00:18:26] Speaker 03:
I don't think it's quite that clear.

[00:18:30] Speaker 03:
Let me put it this way.

[00:18:33] Speaker 03:
If this is 201A, Tria,

[00:18:39] Speaker 03:
If that is the waiver of sovereign immunity, I'm looking for what possible function can be left for 201B2.

[00:19:03] Speaker 08:
So I think the way the statute works is that 201A establishes the scenarios where the property is subject to attachment.

[00:19:12] Speaker 08:
And that would clearly include situations where the United States is in possession of Iranian property.

[00:19:18] Speaker 08:
The way the statute then works is it says, and accept as provided in subsection B, which is then the presidential waiver provision of the statute, which we rely on.

[00:19:31] Speaker 03:
Clearly, the United States has the ability, I'm sorry, B doesn't apply in the exception area, B2.

[00:19:40] Speaker 08:
There's a general rule that the property is subject to execution.

[00:19:45] Speaker 08:
B1 is the waiver.

[00:19:48] Speaker 08:
If these requirements are satisfied, the president has the authority in that scenario to protect or immunize property.

[00:19:58] Speaker 08:
B2,

[00:20:00] Speaker 08:
is the exception to the exception.

[00:20:03] Speaker 08:
So even if B1 is met, if B2 is met, the president cannot waive.

[00:20:09] Speaker 08:
And again, this clearly, clearly applies to property that the United States- I see your point.

[00:20:15] Speaker 03:
So let's go back to A for a moment.

[00:20:19] Speaker 03:
We have this question of what is the provision of law?

[00:20:24] Speaker 03:
And there's a First Circuit case, I think it is, that says, well, provision of law is flexible enough to include a common law doctrine, something other than an actual provision of law statute.

[00:20:35] Speaker 03:
And I think a couple of cases the other way on that.

[00:20:38] Speaker 03:
But in any event, the dictionary definitions from the founding to the present would suggest that we're talking about statutory

[00:20:51] Speaker 08:
I think that's not respectfully the conclusion that this court reached in the King case, in that scenario.

[00:20:59] Speaker 08:
The King versus Doyle case, in that scenario, there was an identical, it was a claim, there was a time limit.

[00:21:07] Speaker 08:
You need to bring a claim within a certain period of time.

[00:21:10] Speaker 08:
And it's not withstanding any provision of law, you need to bring this claim within, I forget, 30 days, 90 days.

[00:21:16] Speaker 08:
plaintiff or the petitioner in that case brought the claim within 31 days and argued that equitable enlargement could be applicable here.

[00:21:24] Speaker 08:
In this court, relying on the notwithstanding laws, said no.

[00:21:28] Speaker 08:
Congress, in clear language, made it clear that this statute applied notwithstanding any other doctrine, including the doctrine of equitable enlargement.

[00:21:39] Speaker 03:
Well, so you just said from, or we did, you're saying from provision to doctrine.

[00:21:44] Speaker 03:
I'm sorry, we lied it from provision to doctrine.

[00:21:46] Speaker 03:
You're saying in that case, in that case I can give you the exact quote because I don't want to.

[00:21:50] Speaker 03:
So they're not withstanding any other provision of law.

[00:21:54] Speaker 03:
Table of a 530 days relying on the clear and emphatic language in the statute.

[00:21:58] Speaker 03:
This is your your brief, correct?

[00:22:00] Speaker 03:
Where it held that the litigant could not seek equitable enlargement of the limitations period because kind of stuff.

[00:22:05] Speaker 03:
No doubts to the mandatory nature of the time limit.

[00:22:09] Speaker 03:
Correct.

[00:22:10] Speaker 03:
It didn't.

[00:22:11] Speaker 03:
So OK, so you're saying

[00:22:13] Speaker 03:
It's your position to that, not disputing it, that they said that with regard to something which was not a statutory provision.

[00:22:25] Speaker 08:
Equitable enlargement is a common law doctrine, just as sovereign immunity is.

[00:22:30] Speaker 08:
It's not a statutory provision.

[00:22:31] Speaker 08:
This court held that the language was clear and fat.

[00:22:36] Speaker 08:
There are other cases.

[00:22:38] Speaker 08:
The Bennett case out of the Ninth Circuit relied on the notwithstanding clause

[00:22:43] Speaker 08:
to override the bank check presumption of separateness.

[00:22:47] Speaker 08:
Again, not a statute that provides for that, a common law doctrine.

[00:22:54] Speaker 01:
There are others that we've cited in our papers, and I would argue that- Notwithstanding any other provision of law, definitely can't apply to the Constitution, right?

[00:23:04] Speaker 01:
Statute can't override the Constitution.

[00:23:08] Speaker 01:
The statute cannot overrush the Constitution.

[00:23:14] Speaker 01:
And if there were decisions from this court recognizing that sovereign immunity principles and our very strict rules of statutory construction are rooted in the separation of powers under the Constitution, then the notwithstanding clause would not override those.

[00:23:33] Speaker 08:
If there, if, let me put it this way, because I'm not familiar with the cases that you're talking about.

[00:23:39] Speaker 08:
sovereign immunity was part of the constitution, a part of the constitution.

[00:23:47] Speaker 01:
I don't know what you mean by inviolable, but if it is, if the judicial doctrines requiring very clear statements, sovereign immunity and judicial, which are meant to ensure that only the political branches wave sovereign immunity and not the courts.

[00:24:07] Speaker 01:
those are rooted in separation of powers, then the notwithstanding provision can't override that doctrine, even though it's not statutory.

[00:24:22] Speaker 08:
Certainly, regardless of the source of the United States sovereign immunity, it is subject to being overridden by a statute that happens all the time.

[00:24:33] Speaker 01:
Of course.

[00:24:34] Speaker 01:
What I'm saying is, sorry, I was trying to be more careful here and I guess I wasn't.

[00:24:37] Speaker 01:
That is this sovereign immunity principle, this maxim of requiring very clear and direct language in a statute.

[00:24:48] Speaker 01:
Courts have said that.

[00:24:49] Speaker 01:
It's not in the text of the Constitution.

[00:24:51] Speaker 01:
But of course have said that that demand that there be such explicit and

[00:25:02] Speaker 01:
unquestionably clear waiver of sovereign immunity applied by courts is itself rooted in the separation of powers of the Constitution.

[00:25:14] Speaker 01:
And so the decision whether sovereign immunity is waived or not in the statute, the analysis of that has constitutional roots.

[00:25:22] Speaker 01:
So it's more complicated than this.

[00:25:24] Speaker 01:
That's why I'm asking the question.

[00:25:26] Speaker 01:
If that's the point, then is that still

[00:25:32] Speaker 01:
Can those principles be overwritten by a notwithstanding clause like this?

[00:25:39] Speaker 08:
I apologize.

[00:25:40] Speaker 08:
No, I wasn't saying it clearly.

[00:25:43] Speaker 08:
We are not challenging that the waiver of sovereign immunity needs to be clear and whatever, I forget the exact phrasing, clear and equivocal.

[00:25:53] Speaker 08:
Our position is that Triet is clear and equivocal.

[00:25:56] Speaker 08:
And so we're not relying on the notwithstanding clause or the other two provisions that we rely on.

[00:26:02] Speaker 08:
in order to say well you don't need to find clear and unequivocal language because we have the notwithstanding clause our position is the notwithstanding clause coupled with the definition coupled with the presidential waiver is clear and emphatic and so i don't think your honor's question but it's more than we don't have principles like that you have cases that you've found which are helpful to think about where

[00:26:26] Speaker 01:
common law principles or non-statutory principles have been held to be overridden by these clauses, but we're talking about something that's in a sort of a different league here.

[00:26:35] Speaker 01:
Are we not?

[00:26:37] Speaker 01:
Because of the constitutional implications of it?

[00:26:40] Speaker 08:
I respectfully don't agree with that.

[00:26:42] Speaker 08:
I think certainly the issue in front of Judge Lampard and the way that this has been briefed is the notwithstanding clause

[00:26:50] Speaker 08:
waive sovereign unity because provision of law should be read.

[00:26:53] Speaker 01:
Well, that's what he said, but that doesn't mean we have to say that.

[00:26:55] Speaker 01:
Certainly.

[00:26:55] Speaker 08:
But I think if provision of law is read the way this court read it in King to include common law doctrines, then that is clear and emphatic language that it applies to all common law doctrines, including the United States sovereign unity.

[00:27:13] Speaker 02:
The government had as an alternative argument

[00:27:16] Speaker 02:
about the license in an exception to TRIA.

[00:27:19] Speaker 02:
Do you have any comments there?

[00:27:21] Speaker 08:
Yeah, this certainly gets into the leads of TRIA.

[00:27:26] Speaker 08:
I really don't fundamentally agree with the United States position.

[00:27:30] Speaker 08:
TRIA is very clear.

[00:27:31] Speaker 08:
There is a definition of blocked assets, followed by an exception.

[00:27:39] Speaker 08:
And then within the exception, again, is a carbon.

[00:27:42] Speaker 08:
So the definition of blocked assets applies

[00:27:46] Speaker 08:
Here, it's an asset that has been seized or frozen by the United States.

[00:27:52] Speaker 08:
The exception is certain licenses.

[00:27:55] Speaker 08:
And I want to get the language here.

[00:27:56] Speaker 08:
It needs to be subject to a license issued by the United States government for final payment, et cetera.

[00:28:08] Speaker 08:
In connection with the transaction for which the issuance of such license has been specifically required by a statute other than.

[00:28:18] Speaker 08:
The international emergency economic powers act.

[00:28:22] Speaker 08:
So what we have here is a situation where the property has been seized or frozen by the United States.

[00:28:29] Speaker 08:
It is subject to a license.

[00:28:31] Speaker 08:
The license that was in front of Judge Lampard has since expired.

[00:28:35] Speaker 08:
So at least as far as the record that was in front of Judge Lampard is concerned, there is no longer a valid license.

[00:28:41] Speaker 08:
And that license was not specifically required by a statute other than IEBA, meaning the actual exception does not apply.

[00:28:52] Speaker 08:
So even though it's subject to a license, it is still

[00:28:57] Speaker 08:
considered a black asset under the threshold definition because the license was not required by a statute other than IEBA.

[00:29:07] Speaker 08:
It was required by IEBA and then a whole host of regulations and executive orders.

[00:29:16] Speaker 08:
I hope that answered your honor's question.

[00:29:18] Speaker 08:
Yes.

[00:29:19] Speaker 03:
Any other questions?

[00:29:20] Speaker 03:
Yeah.

[00:29:20] Speaker 03:
I want to go back to King versus Gold for a minute.

[00:29:23] Speaker 03:
I'm not sure I understand now that I've looked at it more, what you're saying about it.

[00:29:32] Speaker 03:
If I understand it correctly, the court told that the statutory time limit for filing suit could not be extended through a judge-made doctrine, right?

[00:29:43] Speaker 03:
That's correct.

[00:29:44] Speaker 03:
Okay, so that was to say the statute as understandable simply says that

[00:29:50] Speaker 03:
the statute takes precedence over a judgmental doctrine.

[00:29:54] Speaker 03:
What does that tell us at all about the current case?

[00:29:57] Speaker 08:
The statute took precedence over a judgmental doctrine because the time limit in the statute applied notwithstanding any other provision of law.

[00:30:07] Speaker 08:
So absent that language, equitable enlargement would have been available to the plaintiff, the same as it is in any number of cases.

[00:30:16] Speaker 08:
But because Congress made that time limit,

[00:30:22] Speaker 08:
superior, notwithstanding any other provision of law, it did not apply.

[00:30:27] Speaker 08:
And so here, TRIA applies, notwithstanding any other provision of law, which would include common law doctrines.

[00:30:37] Speaker 03:
So you're saying the doctrine of equitable enlargement, you're analogizing to the traditional recognition of sovereign immunity.

[00:30:48] Speaker 03:
Right.

[00:30:50] Speaker 03:
But sovereign immunity doesn't depend upon judicial recognition.

[00:30:54] Speaker 08:
It's a common law doctrine, same as equitable enlargement.

[00:30:57] Speaker 08:
It's not found in a statute.

[00:30:58] Speaker 08:
And the number of this case really, in front of Judge Lampard, was over the definition of provision.

[00:31:05] Speaker 08:
Is provision broad enough to include common law doctrines?

[00:31:09] Speaker 08:
The answer is yes.

[00:31:10] Speaker 08:
We would have our clear and

[00:31:12] Speaker 08:
unequivocal waiver of sovereign immunity in addition to the other arguments that we've made.

[00:31:16] Speaker 08:
If the answer is no, then you would need to address the two other arguments that we've made, which Judge Lenhart did not address in his decision.

[00:31:26] Speaker 01:
It's still a bit more complicated because the Constitution does say which branches get to decide whether money comes out of the treasury or property held by the United States comes out of its hands.

[00:31:38] Speaker 01:
And the one branch that doesn't get to do that is the courts.

[00:31:41] Speaker 01:
right in that first instance.

[00:31:43] Speaker 01:
And so it's just, it feels to me that this doctrine is not on the same level as equitable in large.

[00:31:50] Speaker 08:
I think this court certainly has the constitutional authority obligation to decide what a statute means.

[00:32:00] Speaker 08:
And that's what we're asking the court to do.

[00:32:01] Speaker 08:
And we would say that given the fact that so much of the United States position

[00:32:06] Speaker 08:
rest on the fact that the statute does not apply when we possess property that's owned by Iran.

[00:32:13] Speaker 08:
It only applies when other people possess property that's owned by Iran.

[00:32:18] Speaker 08:
And the definition clearly shows that that's not true.

[00:32:21] Speaker 08:
The United States, it applies when the United States has seized property.

[00:32:25] Speaker 08:
Clearly, the United States has seized, is in possession of property that it has seized, and under the statute, that property shall be subject to execution.

[00:32:36] Speaker 01:
Frozen, it wouldn't apply to the frozen part of the statute.

[00:32:38] Speaker 01:
That's their view.

[00:32:39] Speaker 01:
And seized is not defined in the statute.

[00:32:42] Speaker 01:
And you're also in a world where you're going to be incorporating a lot of state law processes for these writs.

[00:32:47] Speaker 01:
So isn't that at least some ambiguity as to what happened here?

[00:32:52] Speaker 08:
I don't see, in your honor's hypothetical, any ambiguity in the seized portion of it.

[00:32:58] Speaker 08:
Certainly, the United States has never proper the definition.

[00:33:01] Speaker 08:
I'm aware of no definition of assets seized by the United States that would somehow apply to assets that the United States does not possess.

[00:33:11] Speaker 08:
I disagree that there's any basis.

[00:33:13] Speaker 01:
Then again, I'm sorry.

[00:33:16] Speaker 01:
This is not my expertise at all.

[00:33:19] Speaker 01:
Is it formally seized

[00:33:21] Speaker 01:
that is possessed by the United States until Judge Friedman says it's Iranian?

[00:33:28] Speaker 01:
Or is that kind of an ex-girl-like holding?

[00:33:35] Speaker 01:
Take away any technicalities of ex-girl, but is it sort of an in limbo holding or tentative holding until Judge Friedman says this was Iranian under this statute?

[00:33:44] Speaker 01:
It sounds like you can't

[00:33:47] Speaker 01:
be formally seized and possessed unless we know it's from a terrorist party.

[00:33:52] Speaker 08:
Well, I don't know.

[00:33:53] Speaker 08:
And you're right.

[00:33:55] Speaker 08:
Seized is not defined in the statute.

[00:33:57] Speaker 08:
I don't necessarily know that Congress intended seized in Tria to be wholly subsumed within a seizure for purposes of civil forfeiture.

[00:34:10] Speaker 08:
The executive branch, I think clearly under AIPA has the authority to seize property even in situations where

[00:34:17] Speaker 08:
the United States might not be seeking formal forfeiture of it.

[00:34:23] Speaker 08:
And I think any dictionary definition of seizure would require the United States to take possession of the property.

[00:34:33] Speaker 01:
And there's certainly... There's a lot of seizures and then we hear about them nowadays with respect to Russian property, property of individual Russians that are seized, but then there's whole proceedings that come after them that

[00:34:46] Speaker 01:
I think are to sort of definitively determine whether they're going to belong to the U.S.

[00:34:51] Speaker 01:
or not.

[00:34:53] Speaker 08:
I believe under AIIPA, and this certainly happens in the frozen asset context, which I'm certainly more familiar with, in the seizure context, I believe under AIIPA, the United States does have the ability

[00:35:06] Speaker 08:
to indefinitely withhold or indefinitely seize property.

[00:35:10] Speaker 08:
But even assuming that that is wrong.

[00:35:12] Speaker 08:
Without a court proceeding.

[00:35:13] Speaker 08:
You know, correct.

[00:35:14] Speaker 03:
Assuming that's wrong.

[00:35:15] Speaker 03:
Seizure is an action.

[00:35:16] Speaker 08:
You can't indefinitely seize.

[00:35:21] Speaker 03:
I don't know if that's true under the very... Maybe as some peculiar statutory concept it is, but ordinarily rather seizure is an event.

[00:35:32] Speaker 08:
With respect to the freezing of assets, assets have been frozen indefinitely for decades.

[00:35:37] Speaker 03:
Right.

[00:35:38] Speaker 03:
I don't know that... They're frozen or blocked or what have you after they were seized.

[00:35:43] Speaker 08:
Right.

[00:35:43] Speaker 08:
Correct.

[00:35:45] Speaker 08:
I don't think though, assuming I'm wrong, and let's say if the United States under AIPA, if they seize an asset, which would bring it within the Andorra Triad,

[00:35:57] Speaker 08:
even if the United States then has some clock that starts where they need to judicially recognize the seizure such that it becomes the United States property, during the period of time when that clock is running, the property would be subject to TRIA and our clients like mine would be able to come in and try to judicially- That may be the point then, is it?

[00:36:18] Speaker 08:
There would be no point to the statute if the seizure in and of itself made the property no longer Iranian.

[00:36:25] Speaker 08:
Exactly.

[00:36:26] Speaker 01:
or where will that it gives you at least the standing to go into the forfeiture action?

[00:36:29] Speaker 01:
I'm sorry?

[00:36:30] Speaker 01:
That it's seeking the writ at least gives you the standing to go into the forfeiture action.

[00:36:35] Speaker 08:
Seeking the writ gives us an additional argument for standing in the forfeiture act.

[00:36:39] Speaker 03:
Right.

[00:36:40] Speaker 03:
I'm not, I'm still not satisfied about this King case because it, your analogy, um,

[00:36:54] Speaker 03:
I think falters because the court there didn't talk about the meaning of provision of law at all.

[00:37:01] Speaker 03:
And the case would be exactly the same even if there had not been no provision of law or any provision of law notwithstanding had not been in the background, right?

[00:37:13] Speaker 03:
The court basically just said 30 days, that means 30 days, don't need a notwithstanding clause.

[00:37:23] Speaker 08:
In a scenario where the statute did not include the notwithstanding clause, the court certainly could have looked at it and said, for whatever reason, we believe this 30 days is mandatory.

[00:37:35] Speaker 08:
It's not subject to equitable enlargement.

[00:37:38] Speaker 08:
What the court in King did do was it looked at the notwithstanding clause, and it said, we reach our inclusion based on the clear and emphatic language of the statutory provision at issue.

[00:37:50] Speaker 08:
It then goes on to talk about some other

[00:37:53] Speaker 08:
a comparable statutes that did not include the notwithstanding clause and held that I believe it was saying in those cases equitable enlargement was permitted.

[00:38:05] Speaker 08:
And what the court said there, and this is on looking forward to page 277 of the decision, comparing the two statutes, where the language of the provisions is as dramatically different as in these two statutes, we are duty bound to examine

[00:38:22] Speaker 08:
Plain meaning of each separately, as is evidenced by the different periods of time for seeking judicial review that Congress enacted, Congress never intended that these statutes be identical in all procedural respects.

[00:38:34] Speaker 08:
So again, relying on the fact that this statute, the plain meaning of the statute that was actually before it contained a notwithstanding clause, it treated that statute differently than the other statutes.

[00:38:48] Speaker 08:
in a counterfactual world where this statute did not include that clause, the court could have rested its decision on other grounds, but it rested its decision on the notwithstanding clause in this case.

[00:39:01] Speaker 03:
I see your point.

[00:39:02] Speaker 03:
I don't think that the case nails it down.

[00:39:05] Speaker 03:
It's your application of the case that I think is not compelled.

[00:39:10] Speaker 03:
I understand it.

[00:39:11] Speaker 03:
I don't think it's compelled by what's in the case.

[00:39:13] Speaker 03:
But I'll take another look at what you just said.

[00:39:15] Speaker 03:
I'm sorry, you don't think it was compelled?

[00:39:17] Speaker 03:
Your conclusion.

[00:39:18] Speaker 03:
But I will look again at 277 to see whether it's more than.

[00:39:22] Speaker 08:
If I may just respond very briefly to that, the sentence that we've been focusing on, we reach our conclusion based on the clear and emphatic language of the statutory provision at issue by providing that notwithstanding any other provision of law.

[00:39:36] Speaker 08:
And then it goes on to list 30 days.

[00:39:38] Speaker 08:
I don't think there's any reasonable reading of this case that would suggest that the court was not relying on the notwithstanding clause.

[00:39:48] Speaker 03:
What have you said?

[00:39:51] Speaker 03:
Remind me about the doctrine, I guess we would say, by which the first court takes possession of the issue.

[00:40:09] Speaker 08:
I think there are a number of responses that we lay out in our brief.

[00:40:16] Speaker 08:
One, the doctrine has exclusively been applied in scenarios where different courts either... That doesn't move me.

[00:40:26] Speaker 08:
Fair enough.

[00:40:28] Speaker 03:
If you agree that the notwithstanding clause... We refer to the individual judges of the district court routinely as a court, sometimes the other, sometimes not, sometimes putting the court as a body.

[00:40:41] Speaker 08:
I certainly don't dispute that individual judges are referred to as a court.

[00:40:45] Speaker 08:
I think the issue is

[00:40:46] Speaker 08:
a concept of one district judge taking exclusive jurisdiction over property to the exclusion of other judges within the same district, where we think that the doctrine kind of breaks apart.

[00:40:57] Speaker 08:
But fair enough, if your honor's not to move by.

[00:40:59] Speaker 03:
But you have more than that.

[00:41:00] Speaker 03:
You have something.

[00:41:00] Speaker 08:
I can move on.

[00:41:01] Speaker 08:
I think if the court agrees with me, with our position, that provision of law encompasses common law doctrines, which we obviously urge the court to do,

[00:41:11] Speaker 08:
prior to the jurisdiction doctrine would also be overridden by the treaty notwithstanding clause.

[00:41:18] Speaker 08:
This does not have the same, I don't think, constitutional concerns that your honor raised.

[00:41:23] Speaker 08:
And then again, talking about the posture here, we have not actually sought to enforce our rights yet.

[00:41:35] Speaker 08:
We had decided to go through this

[00:41:38] Speaker 08:
gating question first to resolve this gating question first.

[00:41:42] Speaker 08:
And I think there would be plenty of opportunities if the court were to vacate Judge Lampard's decision and send this back down, where we could work out a scenario where we enforce our writs, short of vacating them now at this very early stage.

[00:41:57] Speaker 08:
We could go in front of Judge Friedman and ask Judge Friedman to enforce the writs, either by filing a notice of claim in the forfeit direction or by formally seeking to transfer the case to Judge Friedman.

[00:42:08] Speaker 08:
There's no need for the court to.

[00:42:10] Speaker 08:
They are our rates, put them up entirely and then have a start all over again, which raises a number of concerns in terms of our ability to.

[00:42:19] Speaker 08:
You know, fully at the benefit of the risk that we've gotten, so I don't think this is a scenario where.

[00:42:26] Speaker 08:
prior to the jurisdiction doctrine really is impacting Judge Breedman at all.

[00:42:31] Speaker 08:
And I think he would be the best person to say when his jurisdiction is impacted or not.

[00:42:37] Speaker 03:
Judge, but let's lay out the effect earlier.

[00:42:42] Speaker 03:
You're coming into court with a piece of paper that says that Iran owns the asset, determined by another court, and they're on a potentially collision course, which he says they don't.

[00:42:57] Speaker 08:
That termination certainly would not be binding on Judge Friedman.

[00:43:02] Speaker 08:
It was made ex parte in front of Judge Lambert.

[00:43:07] Speaker 03:
And would Judge Friedman's position be binding on Judge Lambert?

[00:43:11] Speaker 01:
Or be binding on you for purposes of your rights?

[00:43:14] Speaker 08:
If Judge Friedman were to determine that the property was not Iranian?

[00:43:19] Speaker 03:
Yeah.

[00:43:19] Speaker 03:
And we... You want to pursue... Are you then in a position before Judge Lambert to prove the opposite?

[00:43:29] Speaker 08:
Well, if we remained in front of Judge Lampard and Judge Friedman determined that the property was not arraigned or was not subject to forfeiture or some other means, I don't know that that would necessarily bind us.

[00:43:45] Speaker 08:
But there has still been no intent at this point in time by Judge Lampard to interfere with the property that is in front of Judge Friedman, other than to issue the writs.

[00:43:54] Speaker 08:
We haven't sought to enforce those writs.

[00:43:56] Speaker 03:
You're not sure if the Judge Lampard's would be

[00:44:00] Speaker 03:
bound and by anything Judge Friedman has determined.

[00:44:03] Speaker 03:
I'm sorry.

[00:44:03] Speaker 03:
I'm sorry.

[00:44:04] Speaker 03:
If I understood you, you just said that Judge Lamberth would not necessarily be bound by anything Judge Friedman determines.

[00:44:11] Speaker 08:
Just as judges within the same court are not bound by a decision that might be.

[00:44:16] Speaker 03:
So we are on a potential, they are on a potential collision course.

[00:44:20] Speaker 03:
And in the future, we have two appeals coming up from divergent judgments.

[00:44:27] Speaker 08:
They are on a potential collision course, but respectively that collision course has numerous offerings.

[00:44:32] Speaker 03:
I understand that, but I think the purpose of the Friar jurisdiction is to, exclusive jurisdiction, is to avoid that possibility, right?

[00:44:42] Speaker 08:
It's a rule of right and reason, and when the reason isn't

[00:44:46] Speaker 08:
applicable the rule doesn't apply well you just said that we could come up we have here two conflicting judgments from two different district judges which is avoided under the rule what the rule prohibits is one court or in this scenario one judge interfering with another judge's exclusive jurisdiction over the property

[00:45:10] Speaker 08:
Unless and until Judge Lampard at our assistance attempts to enforce the risks that have been issued, there is no interference with Judge Friedman's property.

[00:45:21] Speaker 08:
So my point is that if we go back down, we would have multiple opportunities to figure out how the rest of the litigation will develop, at which point in time, if the United States believes that we are trying to inappropriately interfere with Judge Friedman's

[00:45:41] Speaker 08:
jurisdiction could raise the prior excuse of jurisdiction doctrine.

[00:45:44] Speaker 08:
At that point, there is no attempt yet to interfere with that property.

[00:45:49] Speaker 01:
And so you had agreed earlier that Judge Friedman's decision, which would be made on a full record, would control and would displace this ex-party determination by Judge Lamberth.

[00:46:03] Speaker 08:
I believe in that hypothetical that we were talking about was a scenario where we go back down

[00:46:10] Speaker 08:
and went to Judge Friedman to enforce our writ.

[00:46:13] Speaker 01:
So why would you want to go to Judge Friedman?

[00:46:15] Speaker 01:
If we, if we rule for you, you're best to stay out.

[00:46:18] Speaker 01:
If you go to Judge Friedman, then you're going to be stuck with his decision.

[00:46:20] Speaker 01:
Whereas if you stay out of that action, you're standing there with your, you know, in hand.

[00:46:25] Speaker 08:
Respectfully, we didn't do so well in front of Judge Lampard either.

[00:46:28] Speaker 08:
So I don't know that it would be... You're not going to be anywhere.

[00:46:30] Speaker 01:
You're just going to stand there holding your wits.

[00:46:32] Speaker 01:
You don't have further litigation to do.

[00:46:34] Speaker 08:
We need to enforce it.

[00:46:35] Speaker 08:
We need judicial enforcement of our rents.

[00:46:37] Speaker 08:
So we would need to go in front of either Judge Lampert or Judge Friedman.

[00:46:42] Speaker 01:
Does the law say which court you have to go to for enforcement when there's a pending portraiture action?

[00:46:47] Speaker 08:
I think there would eventually come a point in time during the enforcement of the Brits, where in order to steer clear of the prior exclusive jurisdiction doctrine, assuming the notwithstanding clause doesn't override it, which we say it does, we would need to go to Judge Freeman to enforce the rights.

[00:47:03] Speaker 03:
Really?

[00:47:04] Speaker 03:
Ms.

[00:47:04] Speaker 03:
Lamberth issues writs of attachment, and you don't go to see property?

[00:47:12] Speaker 03:
You go over to another court instead?

[00:47:15] Speaker 08:
We would need to make a motion to transfer the case to Judge Friedman.

[00:47:19] Speaker 08:
This is done.

[00:47:19] Speaker 08:
There was a case a year or so ago.

[00:47:23] Speaker 08:
I believe it was the Owens case where, you know, prior to the motion to quash being resolved, there was a decision to transfer the case to the judge who was overseeing the forfeiture action.

[00:47:35] Speaker 08:
And certainly at this panel or to make it a requirement that we formally move to transfer the case to Judge Friedman in the event that there's a

[00:47:44] Speaker 08:
of reversal, you know, we would be open to that.

[00:47:48] Speaker 01:
We had no- Sorry, what I'm trying to make clear here.

[00:47:50] Speaker 01:
So your view is that at the end of the day, enforcement of this writ would have to be by Judge Friedman.

[00:48:03] Speaker 08:
Assuming the notwithstanding clause does not override the prior exclusive jurisdiction doctrine, our position is that

[00:48:10] Speaker 01:
I thought you just said at some point you're going to have to go to Judge Friedman.

[00:48:14] Speaker 01:
If your theory is that notwithstanding clause overrides that doctrine, you would never have to go to Judge Friedman.

[00:48:20] Speaker 08:
If the notwithstanding clause overrides the doctrine, we would not necessarily need to go to Judge Friedman.

[00:48:27] Speaker 01:
Too many qualifiers in there.

[00:48:29] Speaker 01:
Is it your view that if your writs are reinstated here, you don't have to go?

[00:48:38] Speaker 01:
to Judge Friedman at any point because any prior exclusive jurisdiction doctrine is going to be overridden by your notwithstanding clause.

[00:48:46] Speaker 01:
And so you've got your writs of attachment and you need nothing more other than to ask Judge Lamberth to enforce them.

[00:48:54] Speaker 08:
As a legal matter, that is our position.

[00:48:57] Speaker 08:
As a practical matter, we are willing to go to Judge Friedman in order to preserve our writ.

[00:49:02] Speaker 08:
So at this panel, we're to make that a requirement.

[00:49:05] Speaker 01:
Well, how could we make a requirement without ruling on your argument, which isn't briefed to us at the not the standing clause does or does not override the prior?

[00:49:14] Speaker 08:
Certainly has the option.

[00:49:15] Speaker 08:
Judge Lambert did not decide this question to vacate the specific question he did decide about sovereign immunity and then have Judge Lambert decide whether the prior exclusive jurisdiction doctrine applies to other separately make the writs on what ground would we

[00:49:35] Speaker 01:
If we say the notwithstanding clause is enough to override something constitutionally rooted like sovereign immunity, on what legal basis could we conclude at the same time that it doesn't override this prior jurisdiction argument?

[00:49:50] Speaker 01:
Is there any basic basis for doing that?

[00:49:52] Speaker 08:
If that's the path the court takes, then I would agree that the prior suicide jurisdiction doctrine would likewise be overridden.

[00:50:00] Speaker 01:
So then we wouldn't have the ability to say, I mean, I guess we just drop a footnote saying no, but please just make our lives easier by going to Judge Friedman.

[00:50:07] Speaker 08:
Fair enough.

[00:50:08] Speaker 08:
What I was referring to is obviously we rely on a few different provisions of TRIA.

[00:50:13] Speaker 08:
And so there is a world where the court were to say, well, we're not going to reach the notwithstanding clause issue just yet, because we think the definition of blocked assets is clear.

[00:50:23] Speaker 08:
And so then there would not be a finding as to the notwithstanding clause.

[00:50:28] Speaker 08:
And we would go back down.

[00:50:29] Speaker 08:
And that could be a question that would be open for Judge Lampard.

[00:50:32] Speaker 08:
And quite candidly, we might decide to move this issue to just request a transfer to Judge Friedman.

[00:50:40] Speaker 08:
preference, for lack of a better word, over who ultimately decides whether the writ should be enforced.

[00:50:47] Speaker 08:
We just want the writs that we obtain to remain valid so that we can go and enforce them somewhere.

[00:50:52] Speaker 01:
Well, could you just move this dispute without our decision to Judge Friedman and ask him in the forward direction to issue writs of attachment?

[00:51:04] Speaker 08:
There's a, we theoretically could, there's a priority concern about that in the interim time between going to Judge Friedman trying to get the risks reissued and reserved that someone else could step in front of us.

[00:51:20] Speaker 08:
And so that would be a concern about doing that.

[00:51:23] Speaker 01:
There's nothing to stop you from doing that today.

[00:51:29] Speaker 01:
It doesn't move this out at least.

[00:51:31] Speaker 01:
Right?

[00:51:31] Speaker 01:
It doesn't move this out until he actually were to act on it.

[00:51:34] Speaker 01:
I'm sorry?

[00:51:34] Speaker 01:
It wouldn't move this out until he would act on it.

[00:51:36] Speaker 01:
And I don't know how he could issue writs until he decides the property issues.

[00:51:43] Speaker 08:
Writs are typically issued at a very early stage in a case prior to the party who is then subject to the writs to raise whatever defenses they might have.

[00:51:52] Speaker 01:
No, there might be.

[00:51:52] Speaker 01:
There doesn't seem much of anything typical about this case.

[00:51:55] Speaker 01:
I'm sorry?

[00:51:55] Speaker 01:
Doesn't seem much of anything typical about this case.

[00:51:58] Speaker 08:
I'm involved in a lot of these cases.

[00:52:01] Speaker 08:
There's really nothing typical in any of them.

[00:52:06] Speaker 01:
I'll leave it at that.

[00:52:08] Speaker 01:
No doubt for worthy clients.

[00:52:11] Speaker 01:
Any other questions?

[00:52:14] Speaker 01:
Thank you very much.

[00:52:15] Speaker 01:
We've kept you up a long time.

[00:52:31] Speaker 06:
it please the court to do that on behalf of the United States.

[00:52:35] Speaker 01:
Do they need, do the plaintiffs need, sorry, I'm sorry, but I'm just trying to sort these things out from the start.

[00:52:40] Speaker 01:
The United States is an intervener below in the... No, I got that one from your brief.

[00:52:47] Speaker 01:
Do the plaintiffs need a writ of attachment to be able to intervene in the forward direction before Judge Friedman?

[00:52:56] Speaker 07:
So the,

[00:52:57] Speaker 07:
They do not need a grid of attachment to file a claim in the forfeiture proceeding.

[00:53:02] Speaker 07:
We would argue that to maintain their claim in the forfeiture proceeding, they have to have a specific property interest in the property sought to be forfeited.

[00:53:11] Speaker 07:
So if you're an unsecured creditor, you file a claim, you're going to be subject to dismissal on that claim because you do not have an identified property interest in the in-rem property that is being sought to be forfeited.

[00:53:23] Speaker 07:
Without a grid of attachment under the law of the sport,

[00:53:26] Speaker 07:
They do not have standing as a jurisdictional condition.

[00:53:29] Speaker 01:
So you're saying they can file a motion that will be immediately dismissed.

[00:53:32] Speaker 01:
That's the most they can do.

[00:53:33] Speaker 07:
That's correct.

[00:53:34] Speaker 01:
And you don't believe that the Errors and Risk Insurance Act gives them statutory interest in the disposition of that property.

[00:53:44] Speaker 07:
That's correct, Your Honor.

[00:53:46] Speaker 07:
And I just want to clear up perhaps on some definitions of what is a block asset under TRIA, first of all.

[00:53:51] Speaker 07:
Under 201D2, it's not all property frozen or seized by the United States.

[00:53:57] Speaker 07:
It's very specific.

[00:53:58] Speaker 07:
It's property frozen or seized by the United States under Section 5B of the Trading with the Enemies Act.

[00:54:05] Speaker 07:
We could put that to the side.

[00:54:07] Speaker 07:
Currently, that act only applies to interests of Cuba.

[00:54:10] Speaker 07:
The other provision that it can be seized or frozen under to be a blocked asset is under Section 202 and 203 of the International Emergency Economic Powers Act or IEPA.

[00:54:22] Speaker 07:
It's undisputed in this case that the funds and the cargo here were not seized under IEPA.

[00:54:29] Speaker 07:
The United States applied to a magistrate judge for a seizure warrant under the civil forfeiture statute and served that civil forfeiture

[00:54:38] Speaker 07:
seizure warrant on the operators of the accolades while it was in international waters.

[00:54:44] Speaker 07:
The only possible hook for this asset to be a frozen asset under IEPA is when it entered the territorial waters of the United States before the oil was pumped off in the U.S.

[00:54:59] Speaker 07:
because IEPA only applies property within the jurisdiction of the United States.

[00:55:05] Speaker 07:
And the way that that's been interpreted through executive orders and OFAC regulations is that the property has to either be in the hands of the U.S.

[00:55:12] Speaker 07:
person or it has to be in the United States.

[00:55:16] Speaker 07:
So the only time that IEBA will apply to Iranian-sourced or Iranian property is when it's actually in the United States or in the hands of U.S.

[00:55:25] Speaker 07:
persons.

[00:55:26] Speaker 01:
Well, that would seem to apply to the bank account where the proceeds of the sale is.

[00:55:32] Speaker 07:
Correct.

[00:55:33] Speaker 07:
So you would have to find that the United States government is a U.S.

[00:55:36] Speaker 07:
person under IEBA where it can need to be frozen.

[00:55:39] Speaker 07:
But let's assume that when they serve, there is an attachment, which was right around the time the U.S.

[00:55:45] Speaker 07:
was pumping off the oil after it identified it, after it rolled away and worked.

[00:55:49] Speaker 01:
So they didn't serve it until after it was sold.

[00:55:52] Speaker 07:
That was the agreement you had, wasn't it?

[00:55:53] Speaker 07:
That was the agreement.

[00:55:54] Speaker 07:
They attempted, they reached out to us, right?

[00:55:57] Speaker 01:
As they didn't serve them until it was sold, until it was money, property in the United States.

[00:56:05] Speaker 07:
That's that's correct, Your Honor.

[00:56:06] Speaker 01:
But why doesn't IEPA apply to that?

[00:56:09] Speaker 07:
Because it's not frozen under IEPA because the United States had a license under IEPA to dispose of it.

[00:56:16] Speaker 07:
And so it wasn't frozen.

[00:56:17] Speaker 07:
And that's the holding of R.J.

[00:56:18] Speaker 07:
O'Brien.

[00:56:19] Speaker 07:
That's from the

[00:56:20] Speaker 07:
Uh, from other circuits, from, uh, what is its status then for purposes of the forfeiture act?

[00:56:27] Speaker 07:
It is seized by the United States.

[00:56:30] Speaker 01:
But it's, it's seized, but not frozen.

[00:56:33] Speaker 01:
I got that it's seized, but not frozen.

[00:56:36] Speaker 01:
But why doesn't APA, APA does not apply.

[00:56:41] Speaker 01:
to seize assets?

[00:56:43] Speaker 07:
We didn't seize it under IEBA.

[00:56:45] Speaker 07:
The only provision of IEBA that allows for seizure of property is when the United States is in armed conflict with another nation.

[00:56:52] Speaker 07:
Under IEBA, 50-1702C, when the United States is engaged in armed hostilities or has been attacked by a foreign country or a foreign national, may confiscate any

[00:57:06] Speaker 07:
to report part of IEBA that TREA refers to.

[00:57:11] Speaker 07:
When it is seized under IEBA, the only time the United States seizes property under IEBA is when we're engaged in armed hostilities with another nation.

[00:57:20] Speaker 07:
Otherwise, you'd have to go through another process because due process concerns dictate that there would be a judicial involvement in the seizure of property.

[00:57:29] Speaker 07:
The Civil Forfeiture Statute and its provisions regarding the ability for the United States to seize the assets

[00:57:36] Speaker 07:
terrorist organization or assets which afford a person of source of influence over a terrorist organization was the basis for the United States seizure of this property.

[00:57:48] Speaker 01:
So if it's, um, if it's going through the civil forfeiture action, right?

[00:57:56] Speaker 01:
These funds going through that, are the U S property yet or not?

[00:58:01] Speaker 07:
They are, they are in the possession of the United States government.

[00:58:06] Speaker 01:
I know they say possession is nine-tenths of the law, but I'm asking about the one-tenth here.

[00:58:12] Speaker 01:
And so, is it the property of the United States?

[00:58:16] Speaker 07:
So, is it bringing clear the property of the United States before a final order for officials?

[00:58:20] Speaker 07:
No.

[00:58:22] Speaker 01:
Is it burdened property of the United States, legally burdened property of the United States?

[00:58:29] Speaker 07:
I mean, it's hard to answer that question with a great yes or no.

[00:58:32] Speaker 07:
So let me do the best I can.

[00:58:33] Speaker 07:
The United States has a possessory property interest in the property once it is seized.

[00:58:38] Speaker 07:
The United States has a continued future interest in the forfeiture of that property.

[00:58:44] Speaker 01:
Is it a property interest or is it simply a legal claim to the property?

[00:58:49] Speaker 07:
It's a property interest as I understand the law, Your Honor, and it's a contingent property interest that

[00:58:55] Speaker 07:
that springs into life once we have a final or forfeiture, and it goes back to the date of when the unlawful act that occurred, the gay rights.

[00:59:03] Speaker 01:
If you get, if you, if that's, that's, but I guess I'm trying to figure out what the basis for claim of sovereign immunity is.

[00:59:11] Speaker 01:
If you don't, if it's not something the United States owns now, it just has a legal claim to.

[00:59:19] Speaker 07:
Sure.

[00:59:20] Speaker 07:
And I think the court addressed this question in the calendar case, where it said that seeing between none of the United States' sovereign immunity in the context of collection proceedings is when it has possession.

[00:59:32] Speaker 07:
There's a reason why when the United States takes possession of something, the laws are different.

[00:59:37] Speaker 07:
The United States has it, and this writ has been directed to the United States, not to the bank, not to a holder of the property.

[00:59:44] Speaker 01:
So do you have the ability to turn it over if you don't yet?

[00:59:48] Speaker 01:
everything away and so you guys have this nice bank account that you possess at least or that you have a hold of you don't yet know if it's your property but it's in your possession and they serve a writ of attachment on you do you have even have the legal power to hand it over to someone at this point because it's not yet

[01:00:08] Speaker 01:
You don't have title to it.

[01:00:09] Speaker 01:
It's not your property.

[01:00:10] Speaker 07:
So this, this is the problem that raises the novice standing interpretation advanced by claimants here raises.

[01:00:16] Speaker 07:
We have, we have an order from Judge Friedman that the Marshal Service is directed to hold that property until he issues a final order.

[01:00:22] Speaker 01:
Is it the Marshal Service that's holding that property right now?

[01:00:25] Speaker 01:
So you don't even hold it right now.

[01:00:26] Speaker 01:
You don't own it and you don't hold it.

[01:00:29] Speaker 07:
The US Attorney's Office doesn't hold it right now.

[01:00:32] Speaker 07:
The US Marshal Service is part of the federal government, part of the Department of

[01:00:37] Speaker 07:
states, a United States component of the federal government holds it into sovereign

[01:00:49] Speaker 01:
Could that would even be responded to in the sense that could the marshals, they have this interest that they have contingent interests sufficient to allow them to even respond to a writ of attachment?

[01:01:01] Speaker 07:
So this is where the notwithstanding clause, if there were multiple in the Princess Lydia problem pops up, if there were multiple judges, even the same courthouse issuing orders about what should and should not be done with this property, then that's a real problem.

[01:01:15] Speaker 07:
We're under a court of personal judge freedom and the floor of extra action.

[01:01:18] Speaker 01:
I'm trying to ask exactly what that means.

[01:01:22] Speaker 01:
I assume it means that it couldn't be handed over now.

[01:01:34] Speaker 01:
Would you also be violating federal law?

[01:01:36] Speaker 01:
Is there a statute?

[01:01:37] Speaker 01:
regulation that would be violent.

[01:01:39] Speaker 07:
I think we would probably be violating the I would have to look into it.

[01:01:42] Speaker 07:
Your honor, I'm assuming there's a provision of 18 USC 983, which provides the procedures or federal supplemental rule G to the federal rules of civil procedure, which governs civil forfeiture proceedings.

[01:01:56] Speaker 07:
That's not brief in this case, but certainly we would if Judge Lambert directs us to turn the property over to the claimants.

[01:02:03] Speaker 07:
we would be in violation of Judge Friedman's order to hold it until he issues a final order in the forfeiture proceeding.

[01:02:11] Speaker 01:
That just seems different from saying you have a sovereign immunity defense to their action.

[01:02:17] Speaker 01:
I thought it would just be, what are you bothering us for?

[01:02:22] Speaker 01:
We don't have any authority to do anything with this property right now.

[01:02:26] Speaker 07:
Well, but Your Honor, I think

[01:02:28] Speaker 07:
Again, the problem I'm addressing is the Princess Lydia problem.

[01:02:31] Speaker 07:
I kind of moved into there because you're going to have inconsistent judgments regarding the same piece of property.

[01:02:37] Speaker 01:
But at the end of the day, the property... I get the problem of inconsistent judgment, but that doesn't show that you've got... that sovereign immunity is implicated because you don't own this thing.

[01:02:47] Speaker 01:
You've just got the Marshalls following court order here, but that doesn't... Marshalls follow court orders all the time.

[01:02:53] Speaker 01:
It doesn't mean anything they touch or are holding becomes United States

[01:02:57] Speaker 01:
property for purposes of sovereign immunity.

[01:02:59] Speaker 01:
I mean, courts order marshals to do things with property all the time.

[01:03:03] Speaker 01:
There's no sovereign immunity implications.

[01:03:05] Speaker 07:
Right, but not a private party seeking to attack property that is in the possession of the United States.

[01:03:09] Speaker 07:
And I would refer before to its calendar page.

[01:03:11] Speaker 01:
It sounds like it's in the possession of the court, not the United States.

[01:03:13] Speaker 01:
I mean, we're referring to the United States, but this branch of the United States.

[01:03:16] Speaker 07:
It's part, the U.S.

[01:03:18] Speaker 07:
Marshals Service is part of the Department of Justice and part of the executive branch of the United States.

[01:03:22] Speaker 01:
I know, but it sounds like it's in the control of the

[01:03:24] Speaker 01:
If anyone controls his property right now, it's the court and the Marshal's Service is simply acting at the behest of the court.

[01:03:32] Speaker 07:
I would say that that's correct.

[01:03:34] Speaker 07:
We're not going to be moving anywhere out of the Marshal's Service's custody absent court order from Judge Breedman.

[01:03:39] Speaker 07:
But again, I would direct the court to the calendar case where this is a very similar national pattern.

[01:03:43] Speaker 07:
The United States held money in escrow for potential other beneficiaries.

[01:03:48] Speaker 07:
And even in that case, this court said, no, you can't serve rents of attachment.

[01:03:52] Speaker 07:
You can't collect against the United States.

[01:03:54] Speaker 07:
when it is holding property, even if it belongs to other people.

[01:03:57] Speaker 07:
On sovereign immunity grounds.

[01:04:00] Speaker 07:
On sovereign immunity grounds.

[01:04:01] Speaker 07:
We go through several of those cases in our brief, Your Honor, where, again, the sine qua non of the United States' sovereign immunity and collection proceedings is when it possesses the property.

[01:04:12] Speaker 07:
And that's the reason why we've articulated this distinction.

[01:04:15] Speaker 07:
Because the property here is not seized under IEPA, we don't have to concern ourselves with that portion of the statute.

[01:04:20] Speaker 07:
The only argument that you possibly get out of the tree is that it's frozen

[01:04:24] Speaker 07:
But the only time IEFA would provide this asset at all, the United States had a OFAC license in hand authorizing it to seize, forfeit, and conduct the activities that it has been conducting with this tankload of petroleum.

[01:04:40] Speaker 01:
They say it wasn't one of the OFAC licenses referenced in the TRIA statute.

[01:04:45] Speaker 07:
It is.

[01:04:46] Speaker 01:
Well, I think at the time it wasn't one of the it wasn't the license wasn't issued under one of the statutes referenced in TRIA.

[01:04:52] Speaker 01:
Is that correct?

[01:04:54] Speaker 07:
The exception to the exception as my friend put it.

[01:05:07] Speaker 07:
applies when property continues to be frozen under IEFA, but there is another blocking regime that someone has obtained a license for.

[01:05:18] Speaker 07:
And so what it's saying is that this may still be covered under IEFA, but because you have this overlapping blocking regime and you've got a license there, that's going to be good enough to put it outside of the prospect.

[01:05:29] Speaker 07:
It's real.

[01:05:30] Speaker 07:
It doesn't talk about when you have a license under IEFA at all.

[01:05:34] Speaker 07:
And the decisions from the sister circuits in Holy Land and in R.J.

[01:05:39] Speaker 01:
O'Brien say... I'm sorry, I'm just... I'm being simple here, but... If it was in... The license doesn't take it out unless the alliance was specifically required by IEPA or the United Nations Participation Act or diplomatic relations.

[01:06:02] Speaker 01:
None of those three applied here, right?

[01:06:04] Speaker 07:
We believe that they do apply.

[01:06:05] Speaker 07:
Which one applied?

[01:06:07] Speaker 01:
Not the diplomatic relations.

[01:06:11] Speaker 01:
I don't know what the United Nations Participation Act is, but I assume that didn't apply.

[01:06:19] Speaker 01:
Was this license required by AIFA?

[01:06:21] Speaker 01:
I'm just asking you a statutory question here, not your positions and comedies and things like that.

[01:06:29] Speaker 01:
Was this license required by AIFA?

[01:06:32] Speaker 07:
This license in our mind was required by AIFA, yes.

[01:06:35] Speaker 01:
In your mind?

[01:06:36] Speaker 07:
It's the government's position that it was required by AIFA.

[01:06:39] Speaker 07:
That's what we got from our sister agency, OFAC, to authorize the portraiture activities of the United States and those working under Restoration and Control.

[01:06:47] Speaker 01:
Okay, why was it required by AIFA for you to have this license?

[01:06:51] Speaker 07:
Because then we would have had persons, including U.S.

[01:06:55] Speaker 07:
persons,

[01:06:56] Speaker 07:
making preparations for the offloading of the cargo and purchasing the cargo that are U.S.

[01:07:04] Speaker 07:
persons that would be engaging in property that is Iranian-sourced petroleum, and that is blocked assets once they become into the possession of the United States.

[01:07:17] Speaker 01:
So ABA definitely applied to this oil.

[01:07:20] Speaker 07:
When it came into the U.S.

[01:07:22] Speaker 07:
territorial waters,

[01:07:24] Speaker 07:
And that's the reason we got a license unlocking it and unfreezing it for purposes of our forfeiture proceeding.

[01:07:31] Speaker 07:
So the only time it would have been frozen, the United States had a license to dispose of it until it wasn't frozen.

[01:07:36] Speaker 07:
And again, I urge the court to read the analysis in R.J.

[01:07:40] Speaker 07:
O'Brien in Holy Land.

[01:07:41] Speaker 07:
But as far as the B exception here, the B exception here is not saying, well, licenses only under other statutes count.

[01:07:49] Speaker 07:
It's saying that even if the property remains frozen under IEBA, you don't have an IEBA license.

[01:07:55] Speaker 07:
If you have a license for another regulatory scheme that blocks assets and you're acting pursuant to that, that's going to take you outside the coverage of TRIA too.

[01:08:08] Speaker 07:
Outside the coverage of TRIA as well.

[01:08:11] Speaker 07:
So it's not that the IEPA license is insufficient to unfreeze an asset.

[01:08:15] Speaker 07:
It's saying that even if an asset remains frozen under IEPA,

[01:08:20] Speaker 07:
overlapping blocking regime, that's going to also take it outside of the province of Tria, because the whole purpose of Tria is that it provides access to frozen or seized assets under AIIPA, not unfrozen assets under AIIPA, and not assets that have been unfrozen under other sources of law.

[01:08:42] Speaker 01:
Notwithstanding any other provision of law, that's pretty broad, but it's not particularly ambiguous language.

[01:08:49] Speaker 01:
No other law can get in the way of this.

[01:08:52] Speaker 01:
Why shouldn't we just assume that Congress said what it meant and meant what it said?

[01:08:56] Speaker 07:
Well, because I think if you look at the statutory backdrop and we can get into that second, Your Honor, but also there was no other provision of law.

[01:09:03] Speaker 01:
Notwithstanding any other provision of law.

[01:09:05] Speaker 07:
Right.

[01:09:06] Speaker 07:
And a provision of law is something that's written in a statute for regulation.

[01:09:09] Speaker 01:
Well, a provision of law is a provision of law.

[01:09:12] Speaker 01:
Is qualified immunity a provision of law under section 1983?

[01:09:18] Speaker 01:
I don't know, Your Honor.

[01:09:25] Speaker 01:
Common law, the whole point is that they are brought into part of the statute.

[01:09:30] Speaker 07:
They're a source of law, Your Honor.

[01:09:31] Speaker 07:
I'm not debating their source of law, but whether they're a provision of law, it's an inexact race, even in the opinions cited by my friends on the other side.

[01:09:38] Speaker 07:
The first circuit case that Judge Ginsburg referenced in the argument with my colleague, that was Brown against the United Airlines.

[01:09:46] Speaker 07:
Even though there, they found that the preemption language of the now disdaining clause that issued there

[01:09:51] Speaker 07:
encompass common law remedies, it said it's in exact and we have to work through the entire statutory makeup to resolve the ambiguity.

[01:10:00] Speaker 01:
The United States provision that the qualified immunity doctrine under section 1983, which is there because Congress said, we assume Congress carried this forward in the statute itself.

[01:10:16] Speaker 01:
Because it was a common law backdrop.

[01:10:18] Speaker 01:
But that doesn't just mean we get to keep applying common law anytime we want.

[01:10:21] Speaker 01:
The whole theory for it is that the common law is brought into the statute.

[01:10:26] Speaker 01:
Right?

[01:10:26] Speaker 01:
We're doing a form of statutory construction.

[01:10:28] Speaker 01:
That's what those decisions were.

[01:10:30] Speaker 01:
So if we construe common law to be part of the statute, why doesn't that make it as much a provision of law as the rest of the statute?

[01:10:39] Speaker 07:
In the specific context of section 1983, it doesn't apply to the United States, so I want to be careful.

[01:10:43] Speaker 01:
I know, but I just, okay, the Sherman Antitrust Act, same thing.

[01:10:47] Speaker 01:
There's plenty of time.

[01:10:48] Speaker 01:
It's a general maxim.

[01:10:50] Speaker 01:
We assume Congress legislated against the backdrop of common law, and we don't do that to say, so we get to rewrite the statute.

[01:10:57] Speaker 01:
We do it to say, that's what the statute says and needs.

[01:11:01] Speaker 07:
Yes, Your Honor, and I think actually the section 1983 is a good analogy here.

[01:11:07] Speaker 07:
42 USC 1983 is undisputably a provisional law.

[01:11:10] Speaker 07:
It's written in a statute.

[01:11:12] Speaker 07:
The federal counterpart, it is, is that a provisional law or is that a judicial common law?

[01:11:17] Speaker 01:
That one's not a statute.

[01:11:18] Speaker 01:
I mean, everyone knows that's not a statute.

[01:11:20] Speaker 01:
I mean, I don't think that's an interesting question, frankly, but what I'm asking you is a different one.

[01:11:25] Speaker 01:
And that is, I just don't understand this whole argument that we can somehow know when common law that's brought into a statute as part of it is a provision of that statute or not.

[01:11:34] Speaker 01:
That seems to me a, you know,

[01:11:36] Speaker 01:
Federal Tort Claims Act, that's something you all deal with and that incorporates as a matter of statutory law, the state law of tort law, which is almost always common law of every state or whichever state is implicated in the case.

[01:11:52] Speaker 01:
Are those tort law provisions not provisions?

[01:11:54] Speaker 01:
Is that incorporated tort law, not a provision of federal law?

[01:11:59] Speaker 01:
for purposes of that case?

[01:12:01] Speaker 01:
Well, this is the danger of this theory that we're trying to figure out when common law is, when courts have said, I mean, their Congress said it in the Federal Court Claims Act, but when courts have said we bring, the common law is brought in as if written into the statute itself.

[01:12:17] Speaker 01:
And it seems a bit artificial to say, well, it's written in for purposes of us putting it there, but that it's still not a provisional.

[01:12:24] Speaker 01:
That's the danger.

[01:12:25] Speaker 07:
Right, but the common law, I mean, if you're going to say that the sovereign immunity is part of common law, it's derived from common law, but I think it is elevated above concepts like equitable polling and things like that that we discussed in King.

[01:12:35] Speaker 01:
But you didn't argue that in your brief.

[01:12:37] Speaker 01:
I've argued it, but you didn't argue it in your brief that you did not argue that sovereign immunity is constitutionally rooted.

[01:12:44] Speaker 07:
Your Honor, we argue that it, unlike other common law doctrines, cannot be made without a clear and unmistakable waiver.

[01:12:50] Speaker 07:
But that was what it was making the question in the case.

[01:12:53] Speaker 07:
And what all this discussion reveals is that there's ambiguity in the phrase notwithstanding any other traditional law.

[01:12:57] Speaker 07:
And as soon as the court finds it to be inexact or ambiguous, it means it's not a waiver because waivers have to be clear and unmistakable.

[01:13:06] Speaker 07:
any ambiguity needs to be construed in favor of the sovereign.

[01:13:09] Speaker 07:
And even if the court finds a waiver for property seized under IEBA, which is not this case, it still has to strictly construe that waiver only to that realm.

[01:13:18] Speaker 07:
It does not clearly and unequivocally waive the United States of sovereignty.

[01:13:23] Speaker 01:
That argument depends on your argument that common law is not a provision of law.

[01:13:27] Speaker 01:
That's all I'm saying.

[01:13:28] Speaker 07:
Even if you think the best reading of the statute is that common law is a provision of law and you're going to resolve the ambiguity in that fashion, the fact that there is an ambiguity means there is no waiver when it comes to the issue of sovereignty.

[01:13:43] Speaker 07:
I'm happy to go through our alternative points, especially the principality of it.

[01:13:50] Speaker 07:
I think I mentioned that earlier.

[01:13:52] Speaker 07:
Unless the court has other questions, we ask that the judgment of the district

[01:13:57] Speaker 03:
Well, I do have a question.

[01:13:59] Speaker 03:
Sure.

[01:14:00] Speaker 03:
Remind me of a statute in which the Congress has said specifically, notwithstanding our sovereign immunity.

[01:14:15] Speaker 03:
Oh, he

[01:14:22] Speaker 07:
I'm trying to remember, I definitely have seen them in statutes notwithstanding the United States' sovereign immunity.

[01:14:29] Speaker 07:
The best one I can give is actually in this very construct, in this very subject matter area, 28 U.S.E.

[01:14:36] Speaker 07:
1610 G, the Foreign Sovereign Immunities Act.

[01:14:39] Speaker 07:
It has a specific phrase that says, U.S.

[01:14:43] Speaker 07:
sovereign immunity does not apply.

[01:14:45] Speaker 07:
And it does not apply to regulated property under IEBA that has been used for a commercial purpose in the United States of a foreign terrorist state.

[01:14:57] Speaker 07:
So the problem here is that this property wasn't used in the United States for commercial activity.

[01:15:01] Speaker 07:
That's why we're solely under TRIA and not the Foreign Southern Immunity Act.

[01:15:05] Speaker 07:
But there, it was in the express title of 1610-G where it references that the United States southern immunity waived.

[01:15:14] Speaker 07:
That's very different than what we have in Trio.

[01:15:19] Speaker 03:
Let me take, you just pointed to this exception for property used for a commercial purpose, right?

[01:15:26] Speaker 03:
And where is that to be found?

[01:15:27] Speaker 03:
Is that in 201E?

[01:15:31] Speaker 07:
No.

[01:15:34] Speaker 07:
The reason that we're only dealing with TRIA here and not the Foreign Sovereign Immunities Act, which has some parallel and overlapping provisions, is because the hope to use the Foreign Sovereign Immunities Act to attach assets is that the property must be used for commercial activity in the United States or some commerciality.

[01:15:51] Speaker 07:
That's the reason you're not seeing an argument for attachment under the Foreign Sovereign Immunities Act.

[01:15:55] Speaker 07:
In this case, you're only seeing TRIA because there is some dispute.

[01:16:02] Speaker 07:
used for commercial activity in the United States.

[01:16:04] Speaker 07:
The only reason it happened to come to the United States is because the United States was seeking to forfeit it.

[01:16:13] Speaker 01:
This calendar case that you've represented talked about, is that in your brief?

[01:16:17] Speaker 07:
Yes, Your Honor.

[01:16:18] Speaker 07:
It's in our brief at pages 15 to 16.

[01:16:20] Speaker 01:
There's some reason I didn't see.

[01:16:35] Speaker 01:
That's how you pronounce it, calendar.

[01:16:39] Speaker 01:
Okay.

[01:16:41] Speaker 01:
I thought you had a calendar, like say L-E-N-D-A-R.

[01:16:48] Speaker 07:
Yes, your honor.

[01:16:49] Speaker 07:
And again, I just note that one of the holdings of that case was the government need not have an actual interest in the funds in order to oppose it.

[01:16:57] Speaker 01:
And just one other question.

[01:16:58] Speaker 01:
If Congress passed a statute that said,

[01:17:03] Speaker 01:
Party X may seek judicial process against the United States when it holds the property of Party Y. Would that be a waiver of sovereign immunity?

[01:17:24] Speaker 07:
depending on the other circumstances of exactly what the language is in the statute.

[01:17:29] Speaker 01:
Well, so we have a line in the statute that says a writ of attachment may issue against property, there is seized by the United States.

[01:17:42] Speaker 01:
Why isn't that judicial process?

[01:17:44] Speaker 01:
Party X may seek judicial process against the United States when they hold property.

[01:17:50] Speaker 01:
Why?

[01:17:50] Speaker 07:
That's not the case, Your Honor, because the property wasn't seized under AIIPA, and that's the only property.

[01:17:55] Speaker 01:
So if this were seized under AIIPA, then there is a waiver of sovereign immunity?

[01:17:58] Speaker 07:
I think we would.

[01:17:59] Speaker 07:
I don't want to finalize that because the person... Well, you just said that language would be enough.

[01:18:04] Speaker 01:
And that's exactly what the statute says.

[01:18:05] Speaker 07:
On behalf of the United States, I cannot concede that point because it's not really presented in the issues before this Court.

[01:18:11] Speaker 01:
It seems very much to be in their view.

[01:18:13] Speaker 01:
There's an argument here about the role of AIIPA in this case, but if they're right,

[01:18:18] Speaker 01:
that this that Tria applies to this asset.

[01:18:21] Speaker 01:
This is something the district court didn't rule on, correct?

[01:18:25] Speaker 01:
Didn't rule on this, whether it was a blocked asset or not.

[01:18:28] Speaker 07:
It didn't rule on whether it was a blocked asset, it just assumed it was.

[01:18:33] Speaker 01:
I just want to be crystal clear here, if they're right that Tria does apply here, then what is the argument that the language, you have to

[01:18:43] Speaker 01:
Knock out other languages, but doesn't seem to qualify a waiver of sovereignty that says a writ of attachment can be sought by them.

[01:18:49] Speaker 01:
A judicial process can be sought by them against property that is held, seized or frozen, but seized is certainly held by the United States.

[01:19:00] Speaker 01:
Why is that not enough?

[01:19:01] Speaker 07:
So one, there's no, in this case, that the season, right?

[01:19:05] Speaker 07:
Even below again, I said, if they're right, go ahead to, um, if they're right, the trio applies.

[01:19:13] Speaker 01:
It's a blocked asset for purposes of TRIO.

[01:19:16] Speaker 01:
I understand you have your arguments.

[01:19:17] Speaker 01:
I'm asking a different question.

[01:19:20] Speaker 01:
If you assume it's a blocked asset for purposes of TRIO Section A, why is that not a waiver of sovereign immunity?

[01:19:27] Speaker 01:
You are subject to judicial process for holding it.

[01:19:29] Speaker 01:
You hold it by private party.

[01:19:31] Speaker 07:
Again, given that that's not the facts presented, I think the government would have a much more difficult time coming before the court is saying that's not a waiver of sovereign immunity.

[01:19:39] Speaker 07:
Here, because it's not seized under our income,

[01:19:41] Speaker 01:
And how did the district court make its sovereign immunity decision without answering that question?

[01:19:48] Speaker 01:
It seems to me that question is indispensable to it, because if it is a blocked asset, then there is a waiver of sovereign immunity.

[01:19:56] Speaker 07:
No, Your Honor, it is seized under AEPA.

[01:19:58] Speaker 07:
Again, not only does there have to be a waiver, the waiver has to be applicable to this case, because all waivers not only need to exist.

[01:20:04] Speaker 01:
Did the district court say this was not seized under AEPA?

[01:20:07] Speaker 07:
There's been no contention that it's ever been seized under IEPA.

[01:20:09] Speaker 01:
Did the district court say that because there's no waiver of sovereignty because this wasn't seized under IEPA?

[01:20:13] Speaker 07:
That argument wasn't presented because the only argument that was presented was that it was frozen under IEPA, not seized under IEPA.

[01:20:19] Speaker 07:
Because the only provision of IEPA that allows for seizure is confiscation during wartime.

[01:20:25] Speaker 07:
So it was never applicable.

[01:20:26] Speaker 07:
The district court didn't reach it because it was never argued.

[01:20:29] Speaker 01:
So your whole argument is simply that the other verb, frozen.

[01:20:35] Speaker 01:
Right.

[01:20:36] Speaker 01:
It's not a waiver of sovereign immunity, but the verb seize would be hard to argue that it isn't.

[01:20:42] Speaker 07:
Yes, your honor.

[01:20:43] Speaker 01:
And the reason for frozen, why would Congress split the sovereign immunity Adam that way in a single sentence?

[01:20:48] Speaker 07:
Your honor, it's, it's, I don't know.

[01:20:52] Speaker 07:
Uh, but what I would point to is the statutory backdrop of the congressional announcements since Tria, since Tria, it provided a 16 10 G in the context of a waiver of sovereign immunity for certain assets under the foreign sovereign

[01:21:07] Speaker 07:
victim compensations fund exceeded it with some money upfront.

[01:21:11] Speaker 01:
That gives parties choices.

[01:21:14] Speaker 01:
I don't know how that answers a statutory question about a party that has chosen not to go through the compensation fund and instead to pursue relief litigation.

[01:21:21] Speaker 01:
That's a choice that they're given.

[01:21:23] Speaker 07:
It would render dead letter the ongoing funding mechanism for the terrorist victim compensation.

[01:21:26] Speaker 01:
Why would you do that?

[01:21:27] Speaker 01:
Because that funding mechanism is fines and penalties.

[01:21:32] Speaker 01:
It's not seizure assets.

[01:21:34] Speaker 07:
It's largely funded by the forfeiture activities under criminal and civil forfeiture of terrorism.

[01:21:40] Speaker 01:
My understanding of the statute is that it's fines and penalties that go in.

[01:21:43] Speaker 01:
Is that wrong?

[01:21:43] Speaker 01:
So if you prevail in the forfeiture action, the money in this account is going into the victim compensation fund?

[01:21:51] Speaker 07:
If it's determined by the Department of Justice component without responsibility to be an asset to meet the statutory definition.

[01:21:56] Speaker 01:
Well, that's what I'm asking.

[01:21:57] Speaker 01:
I'm not sure it meets the statutory

[01:21:59] Speaker 01:
definition.

[01:22:00] Speaker 01:
Am I wrong?

[01:22:00] Speaker 07:
I thought it was penalties and fines.

[01:22:01] Speaker 07:
I can't speak to that because it's not within the department.

[01:22:04] Speaker 07:
It's not within the U.S.

[01:22:06] Speaker 07:
attorney's office to make that determination.

[01:22:08] Speaker 07:
Assets very much like this.

[01:22:10] Speaker 07:
What I can say is assets very much like this have been found by the money laundering and asset recovery section of the department of justice to be within the victims act in 75%.

[01:22:19] Speaker 07:
Assets very much like this, for example, another... Seizures of blocked funds that had an arraigning interest in them.

[01:22:28] Speaker 01:
And those have gone to the victim compensation.

[01:22:29] Speaker 07:
Yes, yes.

[01:22:31] Speaker 07:
And again, 75% of that goes to the victim compensation fund.

[01:22:36] Speaker 07:
If Congress had intended that the ongoing funding mechanism would be thwarted by individual creditors

[01:22:42] Speaker 07:
racing to the courthouse and attaching assets as soon as the United States filed a forfeiture complaint against them.

[01:22:47] Speaker 01:
I think that's a much, I'm not sure that argument works for you.

[01:22:49] Speaker 01:
It seems like it's a very complicated one that involves which, which things go into the compensation fund or not, because the compensation fund itself specifically left parties with this option to use the fund.

[01:23:01] Speaker 01:
which so far hasn't been satisfying everybody's claims at all or pursue litigation, which is itself a risky, risky route to obtain compensation.

[01:23:08] Speaker 01:
But unless you're telling me that this, unless you're telling me that this asset, um, if it becomes your, if the, if the, I'm just going to call it the funds now in the bank account, if you win in the forfeiture action, that 75% of that is going into the compensation fund, unless you can make that representation, I don't think it's fair to say that they're trying to end run to anything.

[01:23:27] Speaker 01:
It's not clear that they are.

[01:23:29] Speaker 07:
Again, I can't make the representation because I'm not the impact finder on that.

[01:23:33] Speaker 01:
It's not fair to say they're trying to end run anything unless we know that.

[01:23:37] Speaker 07:
Your Honor, again, if Congress contemplated that terrorism assets the United States is seeking to forfeit would be subject to collection activities by independent terrorist victims,

[01:23:48] Speaker 01:
That's what TRIA says.

[01:23:50] Speaker 07:
It would be an audit.

[01:23:51] Speaker 07:
No, because Congress backed the Victim of the Act and the Compensation Fund after TRIA, much after TRIA.

[01:23:55] Speaker 07:
It didn't overturn TRIA.

[01:23:57] Speaker 01:
Did the Victim of the Compensation Act say we're overturning TRIA?

[01:24:00] Speaker 07:
No, Your Honor.

[01:24:01] Speaker 01:
You know, Congress thought they could both operate side by side.

[01:24:04] Speaker 01:
Right.

[01:24:04] Speaker 01:
I just think this argument isn't the one you're making right now.

[01:24:06] Speaker 07:
Well, but if Congress thought that the United States would waive the sovereign immunity for anything that sees under forfeiture, and that was going to be the principal seating for the ongoing purpose of the fund, that would seem very odd.

[01:24:15] Speaker 01:
if you're reading about the Compensation Act, fund is fund is, would include this asset?

[01:24:21] Speaker 04:
Yes, that's right.

[01:24:23] Speaker 01:
Any other question?

[01:24:25] Speaker 01:
Thank you very much.

[01:24:25] Speaker 01:
I appreciate it.

[01:24:26] Speaker 06:
Thank you, Lauren.

[01:24:39] Speaker 01:
Sorry, Mr. Petrocelli, we will give you three minutes.

[01:24:44] Speaker 08:
Thank you very much, Your Honor.

[01:24:45] Speaker 08:
I want to start off with the license that my friend referred to.

[01:24:50] Speaker 08:
I believe he said that the license unfroze the assets under IEPA.

[01:24:53] Speaker 08:
That language is not included anywhere in the license.

[01:24:56] Speaker 08:
The license authorizes certain transactions.

[01:24:59] Speaker 08:
It says the transactions described herein are hereby authorized.

[01:25:02] Speaker 08:
That's a far cry from saying something is no longer blocked.

[01:25:06] Speaker 08:
I don't think that the reading of the exception that my friend offered makes any sense whatsoever.

[01:25:12] Speaker 08:
Respectfully, the statute specifically says that a block asset is an asset seized or frozen by the United States under IEPA, but it doesn't include property that is subject to a license specifically required by a statute other than IEPA.

[01:25:28] Speaker 08:
The actual language would be rendered meaningless if any license somehow removed the

[01:25:34] Speaker 08:
property from the end of the statute.

[01:25:39] Speaker 08:
With respect to 1610G, the example that my friend gave of an instance where Congress did clearly and unequivocally waive sovereign immunity, what she fails to appreciate is that the statute operates in nearly the exact same way as TRIA.

[01:25:57] Speaker 08:
The difference is, is that TRIO only applies to property regulated by the United States, whereas Section 1610G applies more broadly to any property that is used for commercial activity, including property regulated by the United States.

[01:26:13] Speaker 08:
Tria, referencing the same two statutes, says, if this property is regulated and blocked, it shall be subject to execution and attachment.

[01:26:23] Speaker 08:
It functionally is identical.

[01:26:25] Speaker 08:
The only difference is that 1610G in its title says United States sovereign immunity inapplicable, which of course titles are not dispositive of how a statute works.

[01:26:36] Speaker 08:
It's the language.

[01:26:37] Speaker 08:
And I would submit to you that if you put them side by side, there is no functional difference between the two.

[01:26:43] Speaker 08:
With respect to equating the definition of seizure with compensation, that has certainly never been briefed or decided.

[01:26:53] Speaker 08:
I don't have a position on it one way or the other.

[01:26:56] Speaker 08:
But I think what it makes crystal clear is that assuming the United States is right and TRIA applies to property that the United States has compensated, it clearly applies to property that the United States possesses.

[01:27:10] Speaker 08:
and therefore there must have been a waiver of sovereign immunity as to those assets.

[01:27:15] Speaker 08:
And there is no basis, none whatsoever in the statute.

[01:27:19] Speaker 01:
Are you arguing that frozen and seized mean the same thing?

[01:27:21] Speaker 08:
I'm not arguing that frozen and seized mean the same thing, but I'm arguing that there's no basis in the statute to split, I think as your honor used it, applying TRIA to all seized assets and only some frozen assets.

[01:27:37] Speaker 08:
The language is,

[01:27:40] Speaker 08:
any asset seized or frozen by the United States.

[01:27:44] Speaker 08:
I believe those two words, seized and frozen, rise and fall together.

[01:27:47] Speaker 08:
And seized clearly within possession of the United States, frozen should be interpreted the same way.

[01:27:53] Speaker 08:
With respect to the suggestion that we had never claimed that the property was seized under APA, I don't believe that necessarily be true.

[01:28:02] Speaker 08:
I would refer your honors to the sealed supplemental appendix at JA

[01:28:07] Speaker 08:
188, which is the application for a warrant to seize property.

[01:28:11] Speaker 08:
And IEFA is one of the statutes listed there.

[01:28:14] Speaker 08:
So it was not an issue that was really fully briefed in front of Judge Lamport.

[01:28:18] Speaker 08:
We never had to take a position one way or the other, to the best of my recollection.

[01:28:22] Speaker 08:
So I would just invite the court to look there.

[01:28:24] Speaker 08:
And unless there are any further questions, I know we would ask that the court vacate decision below for a man for further proceedings.

[01:28:32] Speaker 01:
Any questions?

[01:28:34] Speaker 01:
Great.

[01:28:34] Speaker 01:
Thank you very much.

[01:28:35] Speaker 01:
I appreciate the help of both counsel with this case.

[01:28:37] Speaker 01:
It is submitted.