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Case number 22-5018, United States of America versus three sums totaling $612,168.23 in seized United States currency, AJC trading FCC without a balance.

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Mr. Lively for the balance, Mr. Barber for the Epoley United States.

[00:00:23] Speaker 03:
Mr. Lively, good morning.

[00:00:32] Speaker 05:
Good morning.

[00:00:34] Speaker 05:
Keith Lively from the Appellants, AJC Trading, Romani Distribution.

[00:00:38] Speaker 03:
Mr. Lively, can you move the speakers down?

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So the microphones, there's a button that I think will put you more directly.

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Great.

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I'll begin again.

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I'm Keith Lively for the Appellants, AJC Trading, Romani Distribution, and SRT Industries.

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Before you is my client's appeal of the lower court's order striking their claims to seize funds as untimely filed, resulting in a default judgment.

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Now, I acknowledge that district judges have a fair amount of discretion in these issues.

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I also acknowledge that these claims were filed very late.

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However, on the whole, I believe that the circumstances surrounding this case actually justify a reverse.

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Very briefly, circumstances.

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My clients are commodities traders, primarily based on the three transactions that are subject to this particular hearing were for sale of refrigerators, sale of pigment for plastic manufacturing plastics, and Jasmine rice.

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So these are just simple commodities transactions, nothing suspect about them on their base.

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At the time that this claim was filed, my clients had been subjected to 23 separate administrative seizures by the Department of Treasury.

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And because of that, all 23 were based upon the idea that these seizures were justified because my clients were owned, controlled, or operated for the benefit of designated terrorist organizations.

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for specifically Christine Tajadeen and his company of last trading.

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My clients denied it, it's not.

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Mr. Lively, let me ask about whether the notice of appeal was filed too late and that's connected I think to whether the rule 59 motion was filed too late.

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And I'm just gonna kind of put on the table

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how I tentatively see the case and invite you to tell me where I'm wrong.

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To me, August 31st seems like a key date.

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That's the day after the deadline of the first extension.

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So just to back up one second here, the order goes down June 3rd.

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On June 30th, the judge grants an extension

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and says that extension will run until August 30th.

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And so we'll assume for the sake of argument that there would have been no problem with you filing a notice of appeal or rule 59 motion on August 30th or before August.

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Okay.

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But that deadline, August 30th, it expires.

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And then on August 31st, you still have not filed a rule 59 motion and you still have not filed

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through the Rule 59 motion first.

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Because of course, if you had timely filed a Rule 59, it would have told the deadline for filing the notice of appeal.

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But if you hadn't done it by August 31st, any Rule 59 motion after or after August 31st was gonna be untimely.

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And we can concede for the sake of argument for you that the government forfeited the argument that the Rule 59 motion was untimely

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for the second extension because they asked for the second extension.

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But that second extension expires on November 4th.

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And you still haven't filed the Rule 59 motion by November 4th.

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You file it within the window of the third extension, November 10th.

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And when you do, the government says you were untimely.

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It seems like you were untimely because

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The district court actually didn't have the authority to extend that deadline beyond 28 days.

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The government didn't forfeit it because beginning November 4th, the government was no longer the one asking for the extension.

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And because the government didn't forfeit its argument that your Rule 59 motion was untimely, the Rule 59 motion could not have told the deadline for the notice of appeal.

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And that notice of appeal came way after the statutory jurisdictional deadline

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Where am I wrong?

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I will first start with some more circumstances.

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My client was without counsel during many of these days.

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I myself only became involved in the case shortly before the November 4th.

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So I can't speak with much certainty as to what transpired before.

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I do know that the, as you mentioned, Your Honor, the order was

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was in final form on June the 3rd.

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And within five days of that, then counsel filed this motion for stay.

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Could you speak up or speak closer to the microphone, please?

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So the judge filed a motion for stay at that time.

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I mean, then counsel filed the motion for stay and at the same time filed a motion to withdraw based upon irreconcilable differences.

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Well, the initial hearing on that motion was supposed to be June 21st, but the government didn't show up.

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So the judge issued an order to show cause and reschedule it for June 30th, and they did show up.

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He actually issued the final, he issued a memorandum, he issued a written order actually on July 15th.

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He did do the 60 days on June 30th.

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His written order was on July the 15th.

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I would argue, as far as rule 59, that it is not a jurisdictional question.

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It's procedural.

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And that being the case, it can be waived.

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It can be moved.

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The judge has the authority to move that 28 days.

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I would also argue that stay,

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was within his authority to manage his own doc.

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He referred to it in the order, I believe, as a vacating all deadline, all applicable deadline.

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I believe my clients were reasonably relying on the orders.

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And when he would submit the orders, he would set hearing dates into the future.

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The November 4th was a deadline, but I requested to file

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the rule 59 at the hearing.

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And the judge granted my request and set a briefing schedule.

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And the briefing schedule he set forth was complied with by both myself and the government.

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And based upon my belief that the motion for stay, that the deadline for filing a motion for appeal was effectively stayed by the judge's orders as well.

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I just want to be sure I understand your answer to judge.

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Is it this?

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See if I've got this right.

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The judgment that you're appealing from was June 3, correct?

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Yes, your honor.

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All right.

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And June 3, that's when the appeals clock started ticking, correct?

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Originally, yes, your honor.

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So maybe this is what you were saying.

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Isn't your argument that on June

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Ninth.

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Is it June 9th when?

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Yes.

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Okay.

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And that they asked for to extend all timelines, including for a 1590 motion, right?

[00:09:03] Speaker 05:
Correct.

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And your argument is the government didn't object to that?

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They did not object.

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Okay.

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That's your argument, right?

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Yes.

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I thought they did object to it.

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They told it.

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It's interesting.

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They told the, I believe they told council at the time that they were, they would object.

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At least I think that's on the record.

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But in actuality on the 30th of June, they did not.

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And so your point is, your point is then, right, that even though the judge would have had no authority to extend the time for the 59E motion, the fact is the government didn't object.

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And so your argument is the appeal is timely because it was, they filed it,

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after the judge denied the 59E motion a year later, correct?

[00:09:54] Speaker 05:
Well, except to the point that I think he did have the authority even over government's objection.

[00:10:01] Speaker 02:
Really?

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I thought the rules said you can't extend the time for filing a rule 59E.

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But I believe the Mobley decision refers to rule 59E as non-jurisdictional and can be waived and moved.

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Right.

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I'm looking at Bannister versus Davis, which is this 2020 Supreme Court case.

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And it says, well, 59E allows a litigant to file a motion to alter or amend a judgment.

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The time for doing so is short, 28 days from entry of the judgment with no possibility of an extension.

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How are you reading?

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Why should I not read that to say there is no possibility of extending the 28-day deadline for COVID?

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It may not be a satisfactory response, Your Honor, but I believe that this was not an extension per se.

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I believe it would stay in the proceedings.

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And the judge mentioned it was because of the fact that he was taken into consideration that the claimant was no longer represented by counsel and needed to find

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I think that was significant.

[00:11:20] Speaker 03:
I thought you were relying on this unique circumstance.

[00:11:24] Speaker 05:
Well, the unique circumstances as well.

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That's more to the point of we're relying on the court's orders as granting us.

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Right.

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We're relying on their orders as granting us.

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When the court did the third extension,

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This is November 4th, 2021.

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I know there's a lot of dates and a lot of extensions, but the third extension, I think, came down on November 4th, and it was really short.

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It was just an extension until November 10th.

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Do you know if the government consented to that, objected to that, or took no position?

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I think they reserved the right to object to the 59 month.

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To the timeliness of the 59 month?

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I wouldn't be telling the truth if I said I remembered exactly.

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I do remember.

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They did object when the Rule 59 motion was filed to its timeliness.

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But it's OK.

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We'll track down whether they objected on November 4th when the extension was granted the third.

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They might.

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And Your Honor, I guess I would nitpick that that November 4th was extension.

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That was my first appearance before the court, and maybe technically it was.

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It was your first extension.

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It was your client's third.

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And he agreed to hear the 59 motion, and he just set up a briefing schedule.

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And actually, that June 10th, I mean the December 10th, that was my idea, because I realized a lot.

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I didn't see anything.

[00:13:12] Speaker 03:
Right, if there are no more questions, we'll give you a minute and reply.

[00:13:21] Speaker 03:
Mr. Barber.

[00:13:35] Speaker 01:
May it please the court, Kevin Barber of the United States.

[00:13:38] Speaker 01:
So I take my friend on the other side to no longer be arguing that there was a valid extension of the time to file the notice of appeal and that he is now arguing only that the filing of the rule 59E motion told the time to appeal pursuant to federal appellate procedure 4A4A4.

[00:14:01] Speaker 01:
Government's position is that that did not happen because as Judge Walker was alluding to,

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The Rule 59E motion could not have been filed more than 28 days after the judgment, the underlying judgment.

[00:14:14] Speaker 02:
But isn't there argument that the government didn't object to that motion for an extension of time when they filed?

[00:14:22] Speaker 01:
Yes.

[00:14:22] Speaker 01:
So, Judge Taito, that's an important issue I wanted to correct.

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The government did oppose the payments motion.

[00:14:30] Speaker 01:
Yes.

[00:14:31] Speaker 01:
It did?

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Sorry, go ahead.

[00:14:33] Speaker 02:
I'm sorry.

[00:14:34] Speaker 02:
So when they filed their, what was the date?

[00:14:36] Speaker 02:
They filed, it's in June, within the 28 day period, right?

[00:14:40] Speaker 02:
They filed a motion to extend everything, including time for the 59E.

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And did the government object to that?

[00:14:50] Speaker 01:
Yes, Your Honor.

[00:14:50] Speaker 01:
So the motion, so the transcript of the hearing in the record, but the motion described itself as an opposed motion.

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And then even after the hearing in the July 15th order,

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when the district court memorialized its order granting the motion, it continued to describe that as an opposed motion.

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So there's nothing in the record to indicate that the government did forfeit its objection to the timeliness of that.

[00:15:17] Speaker 01:
And there are a couple of other important points here.

[00:15:19] Speaker 02:
Excuse me, maybe I should know this, but is the government's opposite?

[00:15:25] Speaker 02:
Did the government respond to that motion in writing?

[00:15:28] Speaker 01:
No, it did not.

[00:15:29] Speaker 02:
This was all conversation.

[00:15:33] Speaker 01:
Well, yes, but it is reduced to writing in the sense that it informed the claimants that it opposed the motion and then in writing.

[00:15:41] Speaker 02:
Yeah, OK, go ahead.

[00:15:43] Speaker 01:
Not in writing, but there was no requirement for that.

[00:15:46] Speaker 02:
So your point is, since the district itself called it an opposed motion.

[00:15:52] Speaker 02:
That indicates that the government did object.

[00:15:55] Speaker 01:
So again, we don't have the transcript of the hearing, but if at the hearing the government had given up any objection to that motion, then presumably the district court would not have described it as an opposed motion in the order of July 15th.

[00:16:07] Speaker 01:
A couple of other important things though.

[00:16:09] Speaker 01:
So first of all, the motion itself was not solely seeking to extend the 59E deadline or specifically the 59E deadline.

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It was also seeking extension of the notice of appeal deadline.

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It did include the 59E.

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It did include it.

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Yes, certainly.

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But the point is that even if the government had not opposed that motion, it was a motion to stay all applicable deadlines.

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And the notice of appeal deadline could have been applicable because that was validly extendable at that time.

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The equal 60 deadline also could have been extended at that time, but the 59E deadline would not have been applicable because the 28 days was essentially up by the time that hearing took place.

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So, and the other thing is that the government, as Judge Walker was discussing, when the 59E motion was actually filed,

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the government clearly opposed it on time limits grounds.

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I believe at the November 4th hearing that was just discussed.

[00:16:59] Speaker 02:
Well, that would have been, let's assume for a minute that government had forfeited, assume for a minute that the more opposed doesn't carry the weight.

[00:17:07] Speaker 02:
You think, and I'm not saying it does or doesn't, but if the government hadn't opposed the motion on the grounds that the court lacked authority to extend the 59, it wouldn't have made any difference.

[00:17:20] Speaker 02:
that it later raised the issue in response to the rule 59E motion itself, right?

[00:17:26] Speaker 01:
I think it would have made a difference because what happened was the motion basically said, we, the claimants, we may file an appeal, we may file a 59E motion, we may file a rule 60 motion.

[00:17:37] Speaker 01:
I don't think that's enough to say that if the government doesn't oppose that, then later on when the 59E motion is actually filed, they can no longer argue that it's untimely.

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This is a, we recognize that rule 59E's time limitation, even as enforced by rule 6B2, civil rules.

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These are not jurisdictional rules, they're claim processing rules, but the government here made the objection.

[00:18:01] Speaker 01:
So there's no waiver of forfeiture issue there.

[00:18:04] Speaker 01:
So I think that the claimants are forced to resort to this unique circumstances doctrine.

[00:18:09] Speaker 04:
Before we get to that, and we'll stand the forfeiture point for a second, let me give a hypothetical.

[00:18:15] Speaker 04:
Imagine there's a case where there have been three extensions of time and the government did not oppose the first extension and the government did not oppose the second extension.

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But the government did oppose the third extension.

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And then after the third extension was granted, when the rule 59 motion was filed, the government

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said this motion is untimely.

[00:18:49] Speaker 04:
What's the best argument for why in that situation the government has not forfeited its untimeliness argument even though it had agreed to the first two extensions for opposing the 30s?

[00:19:02] Speaker 01:
I think, Your Honor, I'm not aware of any case that says that the government would need to object in those circumstances, at least in a situation like this, where there are multiple different potential post-judgment forms of relief that might be sought by the other party, and some of those deadlines would be validly extendable, but certainly not in this case.

[00:19:21] Speaker 01:
If it was just that the party was literally saying, we just want to file a Rule 59 e-motion,

[00:19:27] Speaker 01:
after the 28 days have elapsed, I think that there would be a much stronger argument that if the government repeatedly did not oppose that and even said, we're fine with that, then that would be, I think that would probably be waver because it would be an intentional relinquishment of a right to enforce this deadline.

[00:19:43] Speaker 01:
My point is that nothing close to that happened in this case.

[00:19:47] Speaker 01:
So we think what happens here, and again, that's why they have to resort to the unique circumstances doctrine.

[00:19:52] Speaker 01:
And we take the position that that doctrine does not apply in this case for several different reasons.

[00:19:57] Speaker 01:
assuming that that doctrine does not apply.

[00:19:59] Speaker 01:
What are the reasons?

[00:20:01] Speaker 01:
So the reasons, there are a few reasons.

[00:20:03] Speaker 01:
First of all, we know that the Unique Circumstances doctrine is an equitable doctrine.

[00:20:09] Speaker 01:
It's a narrow doctrine.

[00:20:11] Speaker 01:
I think Justice Ginsburg called it a narrowly honed exception to the usual rules about this.

[00:20:18] Speaker 01:
And we think that given the claimants' multiple procedural lapses in this case,

[00:20:23] Speaker 01:
that they are not entitled to the equitable relief that the unique circumstances doctrine embodies.

[00:20:29] Speaker 01:
Also, the Supreme Court has made clear that for unique circumstances doctrine to apply, you need to have a specific assurance from the district court that your otherwise untimely motion would be timely filed.

[00:20:44] Speaker 01:
And for the reasons I was just discussing, I don't think that that showing could be made here.

[00:20:48] Speaker 01:
because the district court simply issued a generalized order staying, in its words, all applicable deadlines in the case.

[00:20:57] Speaker 01:
And so I don't think that constitutes the kind of misleading of the other party that you need to invoke that doctrine.

[00:21:04] Speaker 03:
Why not?

[00:21:06] Speaker 01:
Because, as I said before, the multiple other deadlines, the Notice of Appeal deadline, the Rule 60B deadline, were validly extendable at the time.

[00:21:15] Speaker 03:
So there wasn't any sort of specific assurance provided to... So your point is he was talking about only those that can be extended?

[00:21:26] Speaker 01:
Yes, he could well have been, because he said all applicable deadlines.

[00:21:29] Speaker 01:
Um, and so the question is which Apple, which deadlines were applicable.

[00:21:33] Speaker 01:
And at that time, two of them were, but the 59 E deadline essentially was not to invoke unique circumstances.

[00:21:39] Speaker 04:
You need reliance on something that the district court has done.

[00:21:42] Speaker 04:
And on August 31st, back to my first question for proposing counsel on August 31st, everything was to everything was late and the district court had given no assurances or indications.

[00:21:57] Speaker 04:
that any timeline, any deadlines would be extended beyond August 30th, the day before.

[00:22:03] Speaker 04:
Am I right about that?

[00:22:05] Speaker 04:
Yes.

[00:22:06] Speaker 04:
So you can't rely, you can't invoke the Unique Circumstances Doctrine on August 31st when the district court has said you only have until August 30th.

[00:22:18] Speaker 01:
I think that's right.

[00:22:19] Speaker 01:
The other thing just to

[00:22:23] Speaker 01:
Make a slight corrections that I think at that time will 60 would have still been in play.

[00:22:28] Speaker 01:
Because for that rule, you have you just have to file within a reasonable time and I think it can be no more than a year.

[00:22:36] Speaker 01:
So, even when the deadlines are further extended on September 3rd.

[00:22:43] Speaker 01:
We don't think it matters because we think the die was already cast at that point.

[00:22:46] Speaker 01:
But Rule 60 conceivably could have been in play.

[00:22:49] Speaker 01:
The claimants chose to file in the end under Rule 59E.

[00:22:52] Speaker 01:
And that is a deadline that had already elapsed.

[00:22:57] Speaker 01:
So we don't think that's a double.

[00:22:59] Speaker 01:
The other reason why I don't think unique circumstances is available is because this case bears no resemblance to the Moblin case, which I think is the last case where this court filed that doctrine.

[00:23:08] Speaker 01:
That's the kind of case where you can kind of understand it applying.

[00:23:12] Speaker 01:
There were two cases proceeding in parallel.

[00:23:15] Speaker 01:
And the party that ultimately filed the 59E motion sort of understandably thought that because of the relationship between the two cases that it could wait to file until after the 28 days had collapsed.

[00:23:30] Speaker 01:
And just given the name of the unique circumstances doctrine, I would think that circumstances need to be somewhat special.

[00:23:36] Speaker 01:
And here, we don't have any special circumstances.

[00:23:38] Speaker 01:
We have a case where you had a group of parties.

[00:23:41] Speaker 01:
They had an adverse judgment that they maybe wanted to do something about.

[00:23:45] Speaker 01:
Maybe they didn't.

[00:23:46] Speaker 01:
They wanted more time to think about seeking post-judgment relief.

[00:23:50] Speaker 01:
And they ultimately tried to do so in a way that was not timely under the rules.

[00:23:56] Speaker 01:
So we think that the only question before this work, if I could just finish this point, is whether the 59E

[00:24:05] Speaker 01:
motion was properly denied.

[00:24:07] Speaker 01:
We don't dispute that this court has jurisdiction to decide that question, but we think that the court should decide that question simply by saying that it was properly denied as untimely under the rules.

[00:24:19] Speaker 03:
All right.

[00:24:19] Speaker 03:
Thank you.

[00:24:20] Speaker 03:
Thank you.

[00:24:27] Speaker 03:
Mr. Lively, one minute.

[00:24:34] Speaker 05:
Just briefly, I would like to point out that September 3, the September 3 hearing, the government was the one that asked for the extension at that hearing.

[00:24:45] Speaker 05:
So actually, I want to get to the circumstances.

[00:24:51] Speaker 05:
Like, this is not a UK case.

[00:24:53] Speaker 05:
There are two active cases right now in, well, one active case now in district court based upon the same justification that

[00:25:03] Speaker 05:
My clients are controlled and operated and controlled by terrorists.

[00:25:09] Speaker 05:
That's the basis for all 23 of these administrative seizures and the two litigation.

[00:25:15] Speaker 05:
That is a single point.

[00:25:17] Speaker 05:
It's not true.

[00:25:18] Speaker 05:
My clients will prove it's not true.

[00:25:20] Speaker 05:
And for this default judgment to come in and seize their money based on nothing but all face allegations by the government, when we do win and

[00:25:31] Speaker 02:
nullify the justification for any of these seizures, it's going to call into question the legitimacy of the... But doesn't this happen in any circumstance like this where there's a default judgment and the claimants fail to appeal on time?

[00:25:50] Speaker 02:
I mean, that always happens, right?

[00:25:53] Speaker 05:
I wouldn't say always, but probably much more often than not.

[00:25:56] Speaker 02:
But that's the consequence of it, right?

[00:26:01] Speaker 02:
Yes.

[00:26:04] Speaker 05:
Now, I know I have a very brief amount of time, but that gets into my other argument about the prejudice to the government.

[00:26:13] Speaker 05:
I believe Council just said that the Rule 59E motion was denied for untimeliness.

[00:26:21] Speaker 05:
I don't believe that was the case.

[00:26:23] Speaker 05:
I believe it was denied on the

[00:26:31] Speaker 04:
The order, the order gives the order gives no reason.

[00:26:35] Speaker 04:
Yeah.

[00:26:36] Speaker 04:
Doesn't say denied because it's untimely.

[00:26:38] Speaker 04:
It doesn't say it could have been front.

[00:26:42] Speaker 05:
Um, it's just in my opinion, these, these circumstances are one more sentence.

[00:26:51] Speaker 05:
I'm sorry.

[00:26:51] Speaker 05:
It's just that these, these circumstances are extremely unique.

[00:26:55] Speaker 05:
We have multiple seizures, um, by the government.

[00:27:00] Speaker 05:
We have the same basis, and it will be tried.

[00:27:03] Speaker 05:
There will be no harm to the government by sending this back, having it tried in tandem, just like Mobley.

[00:27:09] Speaker 05:
And frankly, these cases were already being tried in tandem, even though they hadn't been formally resolved.