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Case number 22-1568 et al.

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Danny Schieber, the balance, versus United States of America.

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Mr. Schreiber, for the balance, Ms.

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Mahan, for the ability.

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Good morning, Your Honors.

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May I please the court?

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I'm Noam Schreiber.

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I'm here together with my colleague, Mark Zell.

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Amen.

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I'd like to reserve three minutes.

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I'd like to split up my discussion into two parts.

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assert as incorrect application of the APA by the courts below, by the five district courts below, five judges below.

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And concluding, I will discuss why we posit that a more correct standard, correct application of the APA would lead to a different conclusion.

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The real question, again, was whether the district court had jurisdiction at all.

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Well, some of the, yes, many of the issue reports, several of them, three, are ruled that it was a lack of jurisdiction under the political question doctrine.

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However, I will relate to that, but the underlying theory that all the issue reports apply in dismissing the case, that the treaty itself did not provide for private cause of action,

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Some district courts found that that fact results in dismissal under 12-1.

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Some of them found that that fact results in dismissal under 7-0-1-8-1.

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However, that type of analysis or APA review in our position is incorrect.

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We know, for example, that APA review... What is it you say the district court had jurisdiction to review?

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But what statute is still in this that this court had jurisdiction?

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Well, the statute is 1331.

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That's the other line of statute of jurisdiction.

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And what is the language in that statute you say gives jurisdiction over this country?

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That the laws and treaties of the United States, as long as the cause of action rests in the law and treaty of the United States, jurisdiction rests.

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And no district court ruled that jurisdiction was lacking under 1331.

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The district courts that did render a decision on jurisdictional grounds ruled that these claims were barred under the political question dot.

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Again, though, they applied this analytical framework that focused, was fixated, on the status of the agreement under domestic law.

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And they focused on whether this agreement was self-executing or whether it provided a cause of action.

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The analytical framework is modeled in at least two respects that I can see.

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One is people speak loosely and confuse the concepts of non-self-execution, no private rights and no cause of action.

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Another is the debate over whether

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political question, doctrine, and treaty questions go to jurisdiction or the merits.

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But putting all of that aside, Holmes versus Laird still specifies a rule of decision that if the treaty or executive agreement itself forecloses review, the courts shouldn't review.

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And we can debate till the cows come home, whether that's jurisdictional or merits.

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But what undercuts that rule of decision such that we just wouldn't apply it?

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At most we say, well, we thought it was jurisdictional, but it really goes to the merits, which is something we've done all the time as courts get more rigorous about classifying things as jurisdictional or not.

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I have several responses to that.

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My first is that Holmes vs. Laird did not involve an APA act.

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The plaintiffs in Holmes vs. Laird were bringing their claim directly under an agreement.

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Nothing in their claim was based on the APA.

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It said judicial intervention is foreclosed.

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Sorry?

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It said judicial intervention is foreclosed.

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Yes, it did say that.

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But again, the APA was not invoked in that case.

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And in-home first declared this score commented towards the end that had plaintiffs there formulated their claims differently.

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based on certain actions that the United States took upon itself in executing that agreement, the result would have been different.

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Holmes versus Clarence specifically left that question open and discussed what would be the case, for example, if plaintiffs brought their claims on how the United States acted in executing that agreement.

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It's towards the end of the decision.

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And that's very similar to what we're doing here in these cases.

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The plaintiffs are not bringing any claims that the US government

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violated the treaty.

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Claims are being claimed that post execution, as the government began adjudicating individual claims, the decisions were not based, were arbitrary and capricious based on the facts in the record.

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That is not what happened over the last year.

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You are therefore relying on the APA, right?

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Correct, Your Honor.

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If we are looking to the APA as opposed to pretty close to

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for jurisdiction, it requires a final order for us to be reviewing.

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Is there an order here in the sense used in the APA?

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Yes, Your Honor, there is a final order.

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What is the final order we're reviewing?

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Each plan has received a written final order by the agency, by the State Department.

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That's not an order issue carrying out the laws of the United States.

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As Judge Katz was suggesting,

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everything here comes out of a treaty.

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You don't have an order of the sort contemplated by the APA, do you?

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Actually, I think the APA does not part out an exception for an order of the... No, no, no.

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It doesn't copyright and inclusion.

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I don't think it's included.

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I'm suggesting it's not including what's done in the course of carrying out an obligation, a treaty obligation, as opposed to making a decision, an order decision concerning the laws of the United States.

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This case is very unique in the fact that the State Department did not just make this order in effect.

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It implemented this agreement in a very detailed manner.

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It created forms, its own forms.

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There are certainly internal policies.

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The administrative record has not been filed in this case, so it's hard to discern.

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But this is not like any other case that has, and then my research, I have not found anything similar to this type of action.

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And therefore, our position is that this decision by the State Department is a final agency action, subject to the APA, and the government has not raised this issue.

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The government has not claimed there is no final agency action.

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No one, I see I'm running into my time here, but no, not even the courts.

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The district courts did not say that the APA, the elements of the APA, final agency action and agreed plaintiff was not satisfied.

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Instead, the district courts... I don't think the government has ever conceded that the APA is applicable in the sense... I'm sorry, Your Honor?

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I don't think the government has ever conceded that the APA grants the

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No, the government has not, however, raised any argument that the essential elements of the APA course of action are not satisfied here.

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The government, and even worse on it, I'm sorry.

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That isn't the issue, whether they're satisfied or not.

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Why would the government raise that when the government is saying that it's not sufficient to review under the APA?

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I agree with that, Your Honor.

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You're right.

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The government has held their position.

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The government position and even more so on appeal is that that issue should not be read, that there is a more fundamental issue in the fact that the agreement does not create a cause of action.

[00:08:26] Speaker 01:
And that you can't use the APA to end run that limit on the... Yes, they rely, yes, the government and the courts will rely on this court's decision in Nicaragua that

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ostensibly holds that the A.K.

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can override or bypass this issue.

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Well, Nicaragua was before Stilco.

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I'm sorry, Your Honor?

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Nicaragua was before Stilco.

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Correct.

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And Nicaragua was very distinguishable in a lot of ways in this case, but as far as the passing over the jurisdictional question, Judge McVa wrote that before

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Justice Scalia wrote a steel company saying don't pass over the jurisdiction.

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That's true.

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And if you look closely at Nicaragua, it does not stand for the proposition that the government is offering.

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Nicaragua states that it does not discuss private cause of action and that the agreement needs to contain private cause of action.

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Nicaragua has very specific language that the AP review needs to be based on domestic norms.

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The sole authority in Nicaragua for that proposition is the Administrative Law Treatise by Davis, Chapter 28.

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That treatise itself, that chapter is under 701.

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It's discussing reviewability under Section 701.

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It's not some abstract principle or categorical exception to AP review for international agreements.

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The government is correct that in its latest filing, our supplemental

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I'm not asking here that the that there's some

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for APA review on executive agreements.

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This case is very specific.

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Again, I cannot find any case where this fact pattern, where there's such specific implementation and a specific judicial adjudication of individual applications, which should be subject to APA review.

[00:10:41] Speaker 01:
As far as I can tell, you don't have a single case in which

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the APA has been used as a vehicle to adjudicate compliance with a treaty or an executive agreement that creates no judicially enforceable rights.

[00:11:04] Speaker 03:
Yes, it was difficult finding a case like that.

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I would see it.

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However, there is some law suggesting that judicial review is available.

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to challenge agency actions pursuant to executive orders.

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You have a law review article.

[00:11:22] Speaker 01:
And on the other side is OMS, Nicaragua, Delatory, with a fair amount of authority.

[00:11:32] Speaker 03:
Yes, they have that.

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Delatory, however, again, in our view, misapplies Nicaragua.

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Making this categorical exception, they gave a review when the international

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or executive agreement does not provide causes of action.

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To rule on, to make such a categorical exception just to immune agency actions for every decision they take under an executive agreement, these are thousands of agreements out there.

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And again, each, each- I'm curious because I get that the agreement is non self-executed, but Congress has executed it.

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In 22 USC 2668A,

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Congress has executed by law a process for these agreements when there is an agreement where a foreign government deposits monies into the US Treasury and an agency, here the Secretary of State, normally the Secretary of State in international agreements, I would assume, has an obligation to make payments that are due to claimants.

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And so,

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I'm not sure why we're spending all this time focusing on this as if it's just an agreement that's never been executed.

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This one has been executed.

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And so then it would seem to me your argument would need to be that the APA review is on the statute that executed the agreement.

[00:13:09] Speaker 04:
That would certainly be a commonplace use of the APA.

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We haven't argued that here.

[00:13:17] Speaker 03:
We haven't articulated the argument in that fashion.

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However, in our race, we do emphasize the fact that the agency has implemented this agreement under its authority.

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It's implemented there, but what matters, I understand it's done its notice of rulemaking for the forum.

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But I'm making a different point, which is that treaties are non-self-executed unless Congress

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executes them, and particularly ones that involve claims for money out of the U.S.

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Treasury.

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Even the Senate alone can't decide that.

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That requires action of both House and the Senate through the legislative process.

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And you have that here.

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But I haven't heard any arguments about that.

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That seems to be not covered by any of the cases that are cited here and instead covered by Supreme Court cases that have in fact exercised jurisdiction under 2668A and other statutory claims settlement procedures without any political question, rejecting political question limitations and allowing people to bring legal challenges to the distribution

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of money where these statutes have executed these foreign claim settlement.

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It certainly lends itself to suggest that this agreement may be executed.

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We've got a Supreme Court case, Mellon, that says lawsuits can be brought challenging the Secretary, I think it was Secretary of State there as well, distribution of funds pursuant to 2668A.

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And that seems right where we are.

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The difficulty for me is that I haven't heard any argument that that statute is what you're trying to enforce through your APA action.

[00:15:16] Speaker 03:
The statute itself, the government, we predict, would argue this does not provide private cause of action.

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And we think we would still be here today.

[00:15:23] Speaker 03:
Well, they'd have trouble since the Supreme Court has said that.

[00:15:27] Speaker 03:
And the agreement itself, but also under this case, the Supreme Court's jurisprudence as well, would have to provide a private cause of action still.

[00:15:36] Speaker 04:
You don't need it.

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When an agency normally, and this is what I haven't heard here, normally if you have a federal statute that an agency implements, then the APA gives you a cause of action for challenging the agency's implementation of

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That statute, you don't have to look back at the agreement, do you?

[00:15:57] Speaker 03:
Well, I think that's pretty much the argument that we've been making in our briefs, Your Honor.

[00:16:01] Speaker 03:
It's just articulated differently.

[00:16:03] Speaker 04:
Well, it's very much different to articulate when a statute has executed an agreement that is otherwise not executed.

[00:16:09] Speaker 03:
We didn't say that the statute itself executed this agreement.

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But the statute was before or prior to the execution of this agreement.

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The agreement was made pursuant maybe to the statute.

[00:16:20] Speaker 03:
But if the end result is that this court feels its actual agreement was executed, well, I think the result is the same.

[00:16:28] Speaker 04:
Well, then I think because normally the way the APA works is when someone says an agency action is arbitrary and capricious, as you have argued or contrary to law, that decision is analyzed by courts by reference to the statute.

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that authorize agency actions.

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So what in 26, what I wasn't clear from your briefs and I'm sorry if it's my misunderstanding, what in 2668A tells you that this action was arbitrary and capricious?

[00:17:02] Speaker 03:
It would be hard for a court to apply any judicial management standard on in 2668A.

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However, that is the importance of the agreement because the agreement

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The agreement itself provides the substantive laws, substantive standard, I would say, to adjudicate the individual claims.

[00:17:19] Speaker 03:
Just to rely on 2668A, I believe it would cause certain issues.

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I don't have to view it again, but it would cause certain issues in a plan of law, because it's a very broad statute.

[00:17:31] Speaker 04:
Well, that's what I'm trying to understand is how it works.

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I don't think, I don't think.

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I'm trying to understand how it works.

[00:17:37] Speaker 03:
So in 2668A, which is a... The way we see it, we modeled in our briefs... I'm sorry.

[00:17:41] Speaker 04:
I should say that 2668A is a statute that executes claim settlements by authorizing the Secretary of State to make determinations of what to do to a claimant and then directing the Secretary of Treasury who's holding the money to release the money to whomever the Secretary of State has said the money is due.

[00:18:01] Speaker 04:
That's all it says.

[00:18:02] Speaker 04:
But it can apply to this non-self-executing treaty just like it did the one in the Mellon case.

[00:18:10] Speaker 04:
But the question that I just don't know is in doing that, does 2668, when a statute executes a non-self-executing agreement like this, does that then make the terms of the agreement itself law?

[00:18:26] Speaker 04:
Do they get imported into 2668A?

[00:18:29] Speaker 04:
Or do you just have to look within the framework of 2668A, which you said doesn't have those types of specifics?

[00:18:36] Speaker 03:
Thank you for zoning me into the issue.

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I believe the answer to that is in SLOS.

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I think the proper model is that yes,

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We take this approach that the statute itself is the basis for the review, and it would incorporate the substantive terms of the treaty to allow for a substantive judicial review on those actions.

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The treaty itself would provide the court with the standards to review the claim.

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Like in SLUS, I believe that was a prisoner transfer treaty, the court there

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had no issue in seeing that the non-self-executing treaty was implemented by the underlying statute and applied those substantive terms without making any rulings on whether the actual agreement later applied across the national self-execution.

[00:19:27] Speaker 04:
Did the treaty in SLUS have a provision that said the exclusive remedy for

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A resolution of disputes involving the enforcement of this agreement will be.

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Between the two countries, nonjudicial don't recall offhanded had it because that would be incorporated into.

[00:19:49] Speaker 03:
Correct.

[00:19:50] Speaker 01:
The answer is no.

[00:19:53] Speaker 03:
If Your Honor is suggesting that this agreement is different because it does have Article 8, which is an exclusive jurisdictional dispute resolution, our answer is in our briefs.

[00:20:08] Speaker 03:
And we think that that is through government.

[00:20:09] Speaker 03:
The government would not apply to post implementation by the agency.

[00:20:14] Speaker 01:
So your position is,

[00:20:16] Speaker 01:
Even if all of this executive agreement plus 2668 were enacted as a single federal statute, you don't think that statute would preclude judicial review under Article 8?

[00:20:39] Speaker 01:
No, Your Honor, I do not.

[00:20:40] Speaker 01:
And how does your claim here

[00:20:45] Speaker 01:
possibly not involve a dispute arising out of the interpretation or performance of the agreement?

[00:20:56] Speaker 03:
The dispute may arise out of the interpretation of the agreement or the implementation.

[00:21:02] Speaker 03:
But again, the question is the scope.

[00:21:06] Speaker 03:
Who are the parties to that?

[00:21:09] Speaker 01:
Your theory is that the secretary was bound to accept

[00:21:15] Speaker 01:
the statements made in the affidavit or form of written undertaking as to nationality or statelessness.

[00:21:28] Speaker 01:
That might be right or wrong, but it is a question about interpretation of the agreement.

[00:21:34] Speaker 01:
Yes.

[00:21:34] Speaker 03:
But that, but our article eight, however, does not necessarily apply or it should not necessarily apply to post implementation.

[00:21:44] Speaker 03:
Um, the, the, there can be any dispute that doesn't let the word use any dispute.

[00:21:53] Speaker 03:
Yeah.

[00:21:54] Speaker 03:
any of the any about our position is that our position is that any dispute between the governments which can happen in a variety of uh situations i take for example your honors if the state department between the governments are not in there that's

[00:22:08] Speaker 02:
I'm sorry?

[00:22:09] Speaker 02:
The word in between the government is not in there.

[00:22:10] Speaker 03:
No, Your Honor, it's not.

[00:22:11] Speaker 03:
But the clear terms of that in our position, the clear terms of that, and that's how the parties in our positions that the parties intended are only to apply between government to government.

[00:22:22] Speaker 03:
The similar treaties, Your Honors, exceeded between the United States and France and Germany.

[00:22:26] Speaker 03:
Although they also contained these types of provisions, but they also allowed, although not in the United States, in Europe, they allowed for an appellate in those countries.

[00:22:38] Speaker 03:
And there's no reason to believe that the State Department, when it executed this treaty, also did not, based on the background of the APA, did not feel that an individual applicant would be able to challenge their decisions in implementing this agreement under the arbitrary and capricious standard.

[00:22:59] Speaker 01:
Sluss is your best case, but

[00:23:03] Speaker 01:
The implementing statute in Sluss seems to me very different from 2668, which I think your theory has to be that 2668 implements this agreement.

[00:23:21] Speaker 01:
I looked at the statute in sluts and it's quite detailed.

[00:23:25] Speaker 01:
It specifically authorizes the attorney general to act as the authority referred to in the treaty.

[00:23:34] Speaker 01:
And it specifically incorporates the substantive standards of the treaty into the statute.

[00:23:42] Speaker 01:
And then

[00:23:44] Speaker 01:
In that, given that backdrop, we said the statute incorporates the treaty.

[00:23:49] Speaker 01:
I mean, we don't really have any of that in 2668.

[00:23:52] Speaker 01:
It's just a direction for the secretary.

[00:23:58] Speaker 01:
Treasury holds the money.

[00:23:59] Speaker 01:
State adjudicates whatever state adjudicates.

[00:24:03] Speaker 01:
And then there's an appropriation for the money to pay that.

[00:24:07] Speaker 01:
It seems to me completely different.

[00:24:08] Speaker 03:
Yes, Your Honor.

[00:24:10] Speaker 03:
However, for the purpose of the APA, there's nothing more than what 26688A requires.

[00:24:19] Speaker 03:
It's true that SLUS, the underlying statute, the authorizing statute, was much more detailed and specific to those agreements.

[00:24:27] Speaker 03:
Although even in SLUS, it does not discuss the individual treaties.

[00:24:31] Speaker 03:
It gave broad authority to execute these treaties.

[00:24:34] Speaker 03:
It didn't discuss that specific treaty, which I believe was between the United States and Canada.

[00:24:38] Speaker 01:
The statute is not specific to that one treaty, but it incorporates treaties, specifically incorporates treaties like was one with Canada and one with Mexico.

[00:24:51] Speaker 03:
And again, I think for the purpose of the APA review, for getting past this, what the government considers a threshold issue, nothing more is needed than the government's own actions in implementing it.

[00:25:02] Speaker 03:
Persilute 2668A, it shouldn't be

[00:25:06] Speaker 03:
Anything more that's required for purposes of a theater that is art.

[00:25:11] Speaker 01:
And you think a bare bones statute like 2668 just making the appropriation and assigning responsibilities between state and treasury can sensibly be read to override.

[00:25:26] Speaker 01:
Suppose we think Article eight would govern if it were in a statute.

[00:25:31] Speaker 01:
You think 2668 can sensibly be read to override that preclusion?

[00:25:36] Speaker 03:
It's not just 2668.

[00:25:38] Speaker 03:
It's the whole program that the State Department implements.

[00:25:44] Speaker 03:
start doing this in fact, it implemented a whole judicial process to determine these claims.

[00:25:53] Speaker 03:
It created forms.

[00:25:55] Speaker 03:
Again, the administrative record is not before us, and it was not submitted in the district court.

[00:26:00] Speaker 03:
But there were internal policies.

[00:26:02] Speaker 03:
There must have been internal policies of how to implement this.

[00:26:05] Speaker 03:
And this is, for APA to review, this would have been more than sufficient to give the district court

[00:26:14] Speaker 03:
standards of review, how to adjudicate this properly.

[00:26:18] Speaker 04:
And in adopting the form, the processes, the decision-making roles and authorities internally, whatever they are, that was part of how the United States performed its duties under this agreement.

[00:26:32] Speaker 03:
Sorry?

[00:26:32] Speaker 04:
That was part of how the United States, that's part of how the United States performs its duties under this agreement is developing that whole scheme.

[00:26:43] Speaker 04:
Great.

[00:26:44] Speaker 04:
Any other questions?

[00:26:44] Speaker 04:
Thank you very much.

[00:26:46] Speaker 04:
We appreciate it.

[00:26:47] Speaker 04:
We'll give you some time for rebuttal.

[00:26:51] Speaker 00:
Ms.

[00:26:51] Speaker 00:
Millian?

[00:27:06] Speaker 00:
I'm very sorry to do this.

[00:27:08] Speaker 04:
Can I just ask you if I didn't?

[00:27:11] Speaker 04:
Of course not.

[00:27:12] Speaker 04:
If I missed it, please tell me.

[00:27:13] Speaker 04:
I didn't see the words political question anywhere in your brief.

[00:27:19] Speaker 04:
Did I miss it?

[00:27:20] Speaker 05:
Your Honor, you did not.

[00:27:21] Speaker 05:
We are not contending that there is a political question presented in this appeal.

[00:27:27] Speaker 05:
And the reason for that is that as plaintiffs' argument in oral argument and their reply brief has clarified,

[00:27:35] Speaker 05:
We take the only argument they're making to be that the terms of this agreement were somehow domesticated or incorporated into U.S.

[00:27:44] Speaker 05:
law, and that is that U.S.

[00:27:45] Speaker 05:
law that they are attempting to enforce under Yates.

[00:27:49] Speaker 05:
And we don't think there's a political question implicated in addressing that issue, which is sort of well within the judiciary's traditional exercise of authority and implementation.

[00:28:02] Speaker 04:
Sorry, I didn't start you off without letting you get your first word in.

[00:28:06] Speaker 01:
No, but jurisdiction comes first.

[00:28:08] Speaker 01:
You did ask us to apply Holmes versus Lair, which is cast as a political question case.

[00:28:16] Speaker 05:
Your honor, it was not clear at the outset of this case whether plaintiffs were, for example, challenging the terms of the agreement itself, challenging the State Department's implementation of that agreement, the wisdom of the criteria developed.

[00:28:31] Speaker 05:
But we think it's made clear in the reply brief, as I mentioned in response to Judge Millett's question, that the only claim that plaintiffs are pressing now

[00:28:41] Speaker 05:
is that the terms of the agreement have been somehow incorporated into US domestic law.

[00:28:47] Speaker 05:
And as we said, we think that the judiciary has the tools to answer that question.

[00:28:53] Speaker 05:
And that doesn't sort of squarely implicate what was at issue at Holmes, which in that case, the court was being asked to consider whether West Germany had violated the terms of an international agreement and whether that violation in turn

[00:29:09] Speaker 05:
relieve the United States of its obligation to comply.

[00:29:12] Speaker 05:
So we think the question is framed slightly differently in plaintiff's reply brief and plaintiff's presentation here today.

[00:29:20] Speaker 02:
You do seem to be in your brief running away from us deciding jurisdiction as opposed to deciding at 12b6.

[00:29:29] Speaker 02:
The district judges, some of them at least went both ways.

[00:29:36] Speaker 02:
You're not, you're not abandoning

[00:29:39] Speaker 05:
the uh notion that we don't have jurisdiction because of what are you your honor i think the claims as elucidated through plaintiff's reply briefing here today we think are a different set of claims that don't

[00:29:53] Speaker 05:
implicate the political question doctrine at the outset in the complaints and in the district court.

[00:29:59] Speaker 04:
So you are walking away from it.

[00:30:01] Speaker 05:
In this given the nature of their claims.

[00:30:03] Speaker 05:
In this appeal, yes, Your Honor, as those claims have been clarified.

[00:30:06] Speaker 05:
In the district court, as I stated, I think there was some confusion as to whether plaintiffs were challenging what precisely their theory was, whether they were challenged the implementation of this agreement in the abstract, whether they were challenging the wisdom of the terms in the agreement,

[00:30:22] Speaker 05:
And all of those may have presented political questions and would have been more squarely within the terms of- So you are now abandoning the political question position?

[00:30:31] Speaker 05:
Your Honor, we think the issue presented on appeal to this court is not a political question.

[00:30:37] Speaker 01:
Do you disagree?

[00:30:38] Speaker 01:
Put aside the label, political question.

[00:30:42] Speaker 01:
Do you disagree with the statement of law in Holmes that

[00:30:49] Speaker 01:
If the treaty itself provides for an exclusively non-judicial mechanism of enforcement, then the courts can't review questions subject to enforcement and application and interpretation of the treaty.

[00:31:10] Speaker 05:
Your Honor, I don't disagree with that concept, and I think that that concept has been elucidated.

[00:31:15] Speaker 05:
over the years in cases like Medellin and the Supreme Court, cases like Rodriguez from this court, all of which discussed this idea that when there is a specific non-judicial or diplomatic recourse that's specified in an agreement, that that's powerful evidence that the parties that entered into that agreement internationally did not intend to incorporate its terms into domestically enforceable law.

[00:31:41] Speaker 04:
Sorry, keep interrupting me when you want to say something.

[00:31:45] Speaker 05:
I was going to turn to sort of the theories that plaintiffs have or how the terms of this agreement were incorporated.

[00:31:52] Speaker 04:
But the other thing that your brief doesn't say anywhere is 2668A, which seems to me to be sort of this across the board execution of

[00:32:08] Speaker 04:
otherwise non-self-executing agreements about foreign claims to money deposited in the U.S.

[00:32:15] Speaker 04:
Treasury.

[00:32:15] Speaker 04:
So when the U.S.

[00:32:15] Speaker 04:
does an agreement and doesn't have in common with lots of different countries and lots of different situations, it executes it.

[00:32:21] Speaker 04:
Now, as Judge Katz has said, just looking at the statute itself, it seems to do so only in the very narrow sense.

[00:32:29] Speaker 04:
What it most obviously does first and foremost is execute in the sense that nobody can pay money out of the Treasury unless it's authored by statute.

[00:32:39] Speaker 04:
And it certainly authorizes that and authorizes the Secretary of State upon identifying a claim that's due to have the Secretary of Treasury doesn't get in trouble for releasing money to these folks.

[00:32:51] Speaker 04:
At a minimum, that's what the statute does.

[00:32:53] Speaker 04:
So we're not dealing with

[00:32:55] Speaker 04:
a non, I mean, we're dealing with a non-self-executing agreement that has been executed.

[00:33:01] Speaker 04:
And your whole brief was just all about non-self-executing agreements and didn't ever grapple with the fact that it was executed.

[00:33:09] Speaker 04:
And what seems to me a difficult question here is, and it's hard to tell a whole lot from the Supreme Court's decision in Mellon, what

[00:33:20] Speaker 04:
What 2668A does when there's an agreement that it executes?

[00:33:28] Speaker 04:
Is it just this appropriation authorization, or does it allow

[00:33:38] Speaker 04:
Does it somehow incorporate substantive, when it talks about claims due by the Secretary of State, does it somehow bring the agreement into 2668?

[00:33:47] Speaker 04:
Because Mellon was confusing.

[00:33:49] Speaker 04:
The statute said, hey, company X, and Supreme Court said, well, you have to pay company Y. So there should be some interpretive stuff going on there.

[00:34:00] Speaker 04:
So one, I'm trying to figure out how your arguments map onto at least what I think is the proper legal framework.

[00:34:07] Speaker 04:
And then the second question is, if we bring it all in, then presumably that would bring in the exclusive review.

[00:34:14] Speaker 04:
But if we don't bring it in, then it doesn't bring in the exclusive review position.

[00:34:17] Speaker 04:
And then we're trying to discern from Mellon how much review of what the secretary did is allowed.

[00:34:24] Speaker 05:
Your Honor, we don't think that 2668A incorporates the substantive terms of this agreement.

[00:34:31] Speaker 05:
And we think SLAS is a very helpful case on this point, because there you have

[00:34:36] Speaker 05:
statute, the Transfer Act, that was enacted three months after the United States entered into this treaty with Canada.

[00:34:44] Speaker 05:
It specifically referred to the types of treaties that were at issue and it imposed relatively detailed standards for how those agreements should be complied with.

[00:34:57] Speaker 05:
And I think

[00:34:58] Speaker 05:
That is not at all what we have here.

[00:35:00] Speaker 05:
2668A was a part of the State Department's organic statute enacted in the 1800s, I believe, and it doesn't say at all in its terms that it consents to incorporate the substantive standards of any international agreement that thereafter is entered into.

[00:35:17] Speaker 05:
And I think it's helpful to take a step back and think through some of the context.

[00:35:22] Speaker 04:
So then it doesn't carry forward the preclusion of

[00:35:26] Speaker 04:
or the exclusive review provision either.

[00:35:29] Speaker 04:
It doesn't give effect to that either as part of it.

[00:35:33] Speaker 04:
I mean, it certainly gives effect to the agreement, at least in making lawful the distributions that the agreement authorizes and only those that are due under the agreement.

[00:35:46] Speaker 04:
So at least that much is brought in.

[00:35:47] Speaker 04:
But I guess the government's position is that even though it brings in the ability to make payments

[00:35:55] Speaker 04:
There must be someone to whom payments are due and the Secretary of State determines it, brings that part in, but it does not bring in the review provisions, exclusive review.

[00:36:06] Speaker 05:
Your Honor, it's our contention that it doesn't bring in any of those substances standard than it has to the dispute resolution provision.

[00:36:12] Speaker 05:
I just think that's independent evidence that the agreement itself is not somehow imported in domestically enforceable law.

[00:36:20] Speaker 05:
And I think context is helpful here.

[00:36:22] Speaker 05:
The United States and the State Department regularly enters into these types of claim settlement agreements.

[00:36:29] Speaker 05:
It's done so recently with respect to Sudan, with respect to Libya, with respect to Iraq.

[00:36:34] Speaker 05:
And in some of those cases, Congress has, after those agreements are entered into, enacted specific statutes that implement those agreements, that impose additional procedural requirements on the State Department

[00:36:48] Speaker 05:
and undertaking to comply with its commitments.

[00:36:50] Speaker 05:
So the Sudan Claims Resolution Act is an example of that.

[00:36:54] Speaker 05:
And that's just not the case.

[00:36:56] Speaker 05:
That's not what we have here.

[00:36:58] Speaker 05:
Congress is aware of this agreement with France, and they've not enacted a statute that imposes those kinds of constraints on the State Department's exercise of its.

[00:37:08] Speaker 04:
So how do we think about this agreement?

[00:37:11] Speaker 04:
Because if there were no legislation at all, it's non-self-executing.

[00:37:15] Speaker 04:
No one seems to disagree about it.

[00:37:17] Speaker 04:
And it seems that clearly from the face.

[00:37:20] Speaker 04:
And now you have a statute that has certainly executed it a little bit.

[00:37:25] Speaker 04:
And I wasn't sure of how, I had always thought either you had three options, self-executing, non-self-executing and no legislation or non-self-executing, but then executed by legislation.

[00:37:41] Speaker 04:
And it sounds like you're saying there's a door number four, which is non-self-executing, but a little bit executed by legislation.

[00:37:49] Speaker 04:
Is that what we would have to find?

[00:37:51] Speaker 05:
Your honor, I don't think necessarily.

[00:37:53] Speaker 05:
I think a statute like 2668A shows that the president might have the power to create domestically enforceable law via this agreement if he chose to do that.

[00:38:06] Speaker 05:
But I think, as your honor mentioned, the terms of this agreement

[00:38:10] Speaker 05:
make clear that it is not to be important.

[00:38:13] Speaker 04:
Sorry, I misunderstood you something.

[00:38:16] Speaker 04:
You think 2668A authorizes the president to create domestic law?

[00:38:23] Speaker 05:
To be more precise, I think as an example, if the State Department had chosen in this case to promulgate notice and comment regulations that said, here is how we plan to distribute the funds, here's the criteria we plan to use,

[00:38:39] Speaker 05:
then we think plaintiffs could bring a claim that said the state department violated those regulations because those would be pursuant to the state department's statutory authority to create rules and then the plaintiffs could then allege that that an APA challenge to that correct your honor but if they wanted to bring an APA challenge to the notice provision it was just something um you don't offer it in braille or something for

[00:39:05] Speaker 04:
people who are, who have visual disability that they might be able to, that they could do.

[00:39:12] Speaker 05:
That's correct, your honor.

[00:39:13] Speaker 05:
Um, the federal register notices that are referred to in the plaintiff's brief were pursuant to the paperwork production act.

[00:39:19] Speaker 05:
So if plaintiffs were alleging, for example, that the state department had violated that statute, um, that is an existing part of domestic law.

[00:39:28] Speaker 05:
If there are no further questions, your honor, we ask this court to affirm.

[00:39:32] Speaker 04:
Thank you.

[00:39:35] Speaker 04:
Mr. Schreiber, we'll give you two minutes.

[00:39:45] Speaker 03:
First, it appears in this discussion here today that the main issue that we present in our briefs is the status of this agreement.

[00:39:52] Speaker 03:
Sorry, I'm sorry to mic up.

[00:39:57] Speaker 03:
The discussion here this morning highlights that the main issue is the status of this agreement

[00:40:02] Speaker 03:
under domestic law in light of Section 2668A.

[00:40:06] Speaker 03:
And as Your Honor was discussing before, the question really is, what happened to this agreement in light of that statute?

[00:40:14] Speaker 03:
One way to look at it is that it became executing.

[00:40:17] Speaker 03:
It became a fully executed agreement.

[00:40:19] Speaker 03:
But that is not the only way to look at it.

[00:40:21] Speaker 03:
It could still remain non-self-executing, but subject to APA review.

[00:40:26] Speaker 03:
These are essentially the same result would happen

[00:40:32] Speaker 03:
in terms of our clients being sought, that APA review will be available.

[00:40:38] Speaker 03:
So I don't think that there is a fundamental difference between the two ways to articulate what happened to this agreement as a result of this statute.

[00:40:50] Speaker 04:
I'm sorry, so just to be clear, your reading is that 2668A domesticated this agreement

[00:41:03] Speaker 04:
enough that it's subject to APA review.

[00:41:05] Speaker 03:
Correct, Your Honor.

[00:41:06] Speaker 03:
That is exactly what we are doing here.

[00:41:08] Speaker 04:
And what did 2668A suggest that?

[00:41:11] Speaker 03:
Well, 2668A provides the State Department to allocate funds in accordance with these international agreements.

[00:41:21] Speaker 04:
It doesn't say in accordance with the agreements at all.

[00:41:24] Speaker 03:
That would help me understand.

[00:41:25] Speaker 03:
It's in accordance with the criteria that it develops, that it develops.

[00:41:28] Speaker 03:
It does assess the criteria that develops.

[00:41:31] Speaker 04:
Well, just as the Secretary will decide what to do.

[00:41:34] Speaker 03:
I'm sorry?

[00:41:35] Speaker 04:
The Secretary will decide what to do to which claimants.

[00:41:38] Speaker 03:
Yes, subject to whatever limitations it may have under the agreement or other law.

[00:41:44] Speaker 02:
Did you really make that argument in your brief?

[00:41:47] Speaker 03:
Yes, Your Honor, we made that argument.

[00:41:51] Speaker 04:
The 2668A

[00:41:54] Speaker 04:
makes the APA well it implements domesticates it in the sense that and you know at least it authorizes payments as our constitution requires um but i didn't see you argue that 2668a makes let me just step on your question but if that's what makes the apa operative i think that okay

[00:42:21] Speaker 03:
I think that is essentially the argument we're making, that that statute, together with the State Department's actions in implementing it, allows for a peer review.

[00:42:29] Speaker 03:
That, I think, is the essence of what we've stated in our briefs and here this morning.

[00:42:33] Speaker 03:
Now, I just would like to lay, Judge Chances, you asked me if there is any authority in this specific pattern.

[00:42:40] Speaker 03:
And it was difficult to find such authority.

[00:42:44] Speaker 03:
But there is a district court case which specifically

[00:42:48] Speaker 03:
I think squarely points out the issue here, and I would just like to mention it here.

[00:42:53] Speaker 03:
It's from the district of Michigan.

[00:42:54] Speaker 03:
It's not from this circuit.

[00:42:56] Speaker 03:
Lake Islands Association Inc.

[00:42:58] Speaker 03:
versus U.S.

[00:42:59] Speaker 03:
Coast Guard.

[00:42:59] Speaker 03:
2013 West Laud.

[00:43:04] Speaker 03:
543.

[00:43:04] Speaker 03:
5048.

[00:43:09] Speaker 03:
Eastern District of Michigan September 30th, 2013.

[00:43:11] Speaker 03:
Is that in the brief?

[00:43:13] Speaker 03:
It's not in our brief.

[00:43:16] Speaker 03:
And the district court there points out there was also involved in an executive agreement between Canada and the United States.

[00:43:25] Speaker 03:
And the government, they are like here, argued that the agreement itself was not quite a cause of action.

[00:43:32] Speaker 03:
And the district court ultimately didn't move on the issue, but it pointed out that Nicaragua and Del Toro, which the government there relied upon, like it does here,

[00:43:42] Speaker 03:
may not be applicable in that case because there is some sort of statutory source.

[00:43:47] Speaker 03:
And that, it mentioned the statute there, and that statute is similar to the statute we have here.

[00:43:53] Speaker 03:
It is a very narrow, it doesn't give much, unlike in slots, it's not a very elaborate statute, basically an enabling statute, an authorizing statute.

[00:44:03] Speaker 03:
provides little in terms of the substantive standards that the court would have ruled on.

[00:44:07] Speaker 03:
Again, the court ultimately didn't rule on it.

[00:44:10] Speaker 03:
It mentioned the complexity and how Nicaragua may not be applicable in that type of situation.

[00:44:16] Speaker 03:
And it's very similar to the case here.

[00:44:18] Speaker 04:
Maybe you should send that in through a 28-J letter.

[00:44:21] Speaker 03:
I will do that.

[00:44:22] Speaker 03:
Thank you very much, Dan, for your comments.

[00:44:24] Speaker 03:
We would ask the court to reverse the amendment for further proceedings.

[00:44:27] Speaker 03:
Thank you very much.

[00:44:28] Speaker 04:
Thank you.

[00:44:28] Speaker 04:
The case is submitted.