[00:00:01] Speaker 02:
Good morning, Your Honour.

[00:00:27] Speaker 04:
I'm Carolyn Lam on behalf of the appellants.

[00:00:31] Speaker 04:
We have divided the argument and Ms.

[00:00:36] Speaker 04:
Kalinaki will address the appealability and without prejudice denomination and standing.

[00:00:44] Speaker 04:
I'm going to the central issue in our view.

[00:00:52] Speaker 04:
First, there is no subject matter jurisdiction.

[00:00:56] Speaker 04:
against the foreign state, here Russia, decided in this case under 1605A3.

[00:01:08] Speaker 04:
We appear for the appellants, not the Russian Federation.

[00:01:13] Speaker 04:
They are not in this part of the proceeding, but it's our appellant's assets that Abad seeks to take

[00:01:23] Speaker 04:
to pay for over $200 million in fines that the district court has imposed against the Russian Federation as a result of their alleged defiance of an extraterritorial injunction to return some allegedly expropriated materials that are in Moscow.

[00:01:49] Speaker 04:
There's no question

[00:01:52] Speaker 04:
on these basic facts.

[00:01:55] Speaker 04:
The materials are not here in the United States.

[00:01:58] Speaker 04:
There's no allegation vis-a-vis the foreign sovereign that, in fact, there's any commercial use of those materials.

[00:02:09] Speaker 01:
Suppose I agree with you that after our course decision in the Seppl, that your view about the amenability of the Russian sovereign is set forth for going forward.

[00:02:22] Speaker 01:
So the question here is, what do we do about the fact that there was a lot of stuff that happened in this case before all that, including the original decision from our panel, way back to tell.

[00:02:35] Speaker 04:
The 5-1.

[00:02:36] Speaker 01:
Yeah, 5-1.

[00:02:37] Speaker 04:
Shall we call it that?

[00:02:39] Speaker 01:
So the question is, was there a finality attached to the jurisdictional presumptions that were in place at that time that would preclude the ability to revisit that now?

[00:02:52] Speaker 01:
even if we thought that your understanding of the shuttle was right as a matter of understanding?

[00:03:00] Speaker 04:
No.

[00:03:00] Speaker 04:
A court always, and under one of your more recent decisions, in fact, you reference this, the way, why, oak, tech versus Iraq, a court always has to re-examine its subject matter jurisdiction.

[00:03:21] Speaker 04:
And under the Sudan case, in fact, even if jurisdiction was previously raised, if a particular issue of jurisdiction was not, you can still consider that.

[00:03:38] Speaker 04:
So we don't agree that in terms of raising this issue now when our assets are about to be taken.

[00:03:50] Speaker 01:
Let's suppose jurisdiction is found in a case involving a foreign sovereign, but there's a judgment that's entered, signed for killing that judgment, that is expired, that judgment has become final, and that sovereign after the judgment has become final,

[00:04:19] Speaker 01:
The post judgment challenge can be appropriate under certain circumstances.

[00:04:44] Speaker 04:
We don't say here the law has changed.

[00:04:49] Speaker 04:
We say it was never decided as to the foreign sovereign.

[00:04:55] Speaker 04:
Yes, you decided it, and we don't raise anything with respect to the Library and Military Archive, the other two Russian dependents.

[00:05:05] Speaker 04:
We raise that you never decided, nor did the district court decide the subject matter jurisdiction

[00:05:17] Speaker 04:
And therefore, under Supreme Court precedent that we cite as well as under your own circuit precedent, a judgment is void if it does not have subject matter jurisdiction.

[00:05:31] Speaker 04:
And this court, if you read his order that we are appealing from and his memorandum of opinion that is incorporated in it,

[00:05:42] Speaker 04:
says, I'm not deciding anything else unless I have a direction from the circuit.

[00:05:48] Speaker 04:
And by the way, I would need an on-bank direction.

[00:05:53] Speaker 04:
But all of your cases, in fact, on the same issue, whether De Sheffield, Simon, Phillips, they have gone for on-bank, been denied.

[00:06:05] Speaker 04:
Some have even petitioned for cert, been denied.

[00:06:09] Speaker 04:
No one disputes what the black letter language is.

[00:06:14] Speaker 01:
So I think that all goes to what the state of the law is now.

[00:06:16] Speaker 01:
I think still this question that we've been asking you about that gets to, what do we do with the ground that's been plowed already in this case?

[00:06:24] Speaker 01:
Supposing you have a certain dance in which, in the first instance, the sworn sovereign comes into the case, makes an appearance, vials, pleadings, and objects to dereliction.

[00:06:37] Speaker 01:
and they're like hearing my jurisdiction and it goes really bad for the foreign sovereign.

[00:06:41] Speaker 01:
The foreign sovereign sees the writing on the wall and says, maybe it just says it.

[00:06:47] Speaker 01:
You know, I see where this is going.

[00:06:49] Speaker 01:
We're gonna withdraw.

[00:06:51] Speaker 01:
And so there's withdraws from the case.

[00:06:53] Speaker 01:
And then the case proceeds to judgment.

[00:06:55] Speaker 01:
There's a decision made that their jurisdiction is to that foreign sovereign.

[00:07:00] Speaker 01:
And the judgment's ended.

[00:07:03] Speaker 01:
They were withdrawn.

[00:07:04] Speaker 01:
And then they come in later.

[00:07:06] Speaker 01:
and file a collateral attack and say, actually, we'd like to actually challenge the jurisdiction.

[00:07:12] Speaker 04:
Can you do that?

[00:07:15] Speaker 04:
It depends when.

[00:07:17] Speaker 04:
If there's been a default judgment entered so that it's then post-judgment, I think at the time that post-judgment, someone is trying to enforce

[00:07:32] Speaker 04:
uh, a judgment that is devoid of jurisdiction and its issuance, it must be raised.

[00:07:39] Speaker 04:
It's a void judgment.

[00:07:41] Speaker 01:
What happened was the first time around, once I came in and saw the writing of the law, boy, I see where this is going, but you know what?

[00:07:50] Speaker 01:
I got another chance.

[00:07:51] Speaker 01:
If I get it out now, I can come back later after the fall judgment is insured and I might get a second crack at it and I'm going to see if the law is better or if I get a different form or something.

[00:08:02] Speaker 04:
Well, let me tell you what really happened in this case from the record, because I don't think it is as bad as the case you posited.

[00:08:13] Speaker 01:
I'm not saying that it is, but I'm just wondering where your argument goes, because I guess that's the question.

[00:08:19] Speaker 01:
There is a principle of jurisdictional finality that kicks in in some circumstances.

[00:08:23] Speaker 01:
At some point.

[00:08:24] Speaker 01:
The question is, does that apply here?

[00:08:27] Speaker 01:
If you don't even think it applies in circumstances that I outline, well, then that's one argument.

[00:08:31] Speaker 01:
But if you do think it would apply in that circumstance, but it doesn't apply here, then there's got to be some basis for us to say, not to stand in line with the infractible concepts that outlines the kind of choice that everyone starts to make.

[00:08:42] Speaker 01:
Why couldn't we, through this circumstance, to be having made one in which the choice was made, just like it was in the hypothetical that I read?

[00:08:51] Speaker 04:
I think we have to refer to the case that we've got before the court.

[00:08:56] Speaker 04:
And I think the facts here are compelling.

[00:09:01] Speaker 04:
Because yes, there was participation by the Russian Federation at the outset.

[00:09:08] Speaker 04:
And then there was a denial of the motion to dismiss.

[00:09:12] Speaker 04:
They filed an answer.

[00:09:14] Speaker 04:
They sent a diplomatic note.

[00:09:16] Speaker 04:
And in the diplomatic note, they said, you know what?

[00:09:19] Speaker 04:
The property is in Russia.

[00:09:23] Speaker 04:
It's not in the United States.

[00:09:25] Speaker 04:
And they then, in filing a notice to withdraw, said, by the way,

[00:09:31] Speaker 04:
You can't get the property that's in Russia.

[00:09:35] Speaker 04:
We raise all the FSIA issues.

[00:09:39] Speaker 04:
The judge then several years later enters the default judgment.

[00:09:46] Speaker 04:
He does not consider the FSIA issue raised in the answer.

[00:09:52] Speaker 04:
He does not consider it as to the sovereign.

[00:09:55] Speaker 04:
He does not consider, in fact,

[00:09:59] Speaker 04:
what had been decided in Havad 1.

[00:10:01] Speaker 04:
And if you look carefully at the decision in Havad 1, the court only decided as to the library and as to the archive.

[00:10:12] Speaker 02:
But the court did refuse to dismiss Russia or any other agency.

[00:10:16] Speaker 04:
It did, but without any reasoning.

[00:10:19] Speaker 04:
It didn't consider the issues.

[00:10:22] Speaker 04:
And in fact, if you look at the words of the end of Havad 1,

[00:10:29] Speaker 04:
the full sentence reads, we reverse the district court's finding of Russian's immunity as to the library claims based on the events of.

[00:10:42] Speaker 01:
So all that is right.

[00:10:44] Speaker 01:
I mean, it's completely consistent with what our court said in the shot.

[00:10:48] Speaker 01:
That's right.

[00:10:48] Speaker 01:
So all of this is right.

[00:10:50] Speaker 01:
I don't see how that gets to squarely to whether, and I'm not saying

[00:11:02] Speaker 01:
But it doesn't get to whether what had already happened in your case congealed, given the rounded appearance, to an extent that her clues collided with that combat trainer.

[00:11:16] Speaker 04:
And in our view, Your Honor, it does not.

[00:11:19] Speaker 04:
Because we say by failing, this is black letter law in the FSIA.

[00:11:27] Speaker 04:
You must have the property in the United States.

[00:11:30] Speaker 04:
By ignoring the black letter law, this wasn't some extraneous argument about subject matter jurisdiction.

[00:11:39] Speaker 04:
No one decided it.

[00:11:41] Speaker 01:
All that could be equally true in the hypothetical that I've read out.

[00:11:43] Speaker 01:
Suppose you have a district court that just, and I'm not saying district, this district court did it, I'm just exaggerating the hypothetical.

[00:11:50] Speaker 01:
You could have one where the district court just ignored the black letter law.

[00:11:53] Speaker 01:
But then what happens is the foreign sergeant comes in and says, I see where this is going.

[00:12:00] Speaker 01:
I'm going to try to get a second crack and have a shot.

[00:12:05] Speaker 01:
That seems like a tricky proposition to stop, even in that circumstance.

[00:12:14] Speaker 04:
Even in that circumstance, I would say that under practical concepts, under Sudan, you can look post-judgment, of course.

[00:12:23] Speaker 04:
And even in that circumstance, this circuit has the obligation

[00:12:28] Speaker 04:
to examine its own jurisdiction and that of the district court.

[00:12:32] Speaker 04:
And there is no existing circuit decision on that other than de Sheffield that goes on for two pages saying the issue was never decided.

[00:12:48] Speaker 01:
But I'll just take that just a little further.

[00:12:51] Speaker 01:
If you're looking at de Sheffield and it does criticize another hero,

[00:12:56] Speaker 01:
It's not overruling the panel.

[00:12:58] Speaker 01:
There's no Irish footnote.

[00:13:00] Speaker 01:
There's no changing off by the Supreme Court.

[00:13:03] Speaker 01:
We have a gun on the box.

[00:13:05] Speaker 02:
So how do we deal with our own jurisprudence on that issue, even if it criticizes another panel?

[00:13:14] Speaker 04:
Well, I think De Schempel's analysis had it right, because what the De Schempel court said is,

[00:13:21] Speaker 04:
There isn't any interest in a really any interest circuit or other split of any kind.

[00:13:28] Speaker 04:
And the district court judge recognizes this as well because the issue wasn't decided.

[00:13:35] Speaker 04:
It wasn't briefed.

[00:13:37] Speaker 04:
It wasn't argued as to the foreign sovereign.

[00:13:41] Speaker 04:
And I read you the only sentence in there just conflates all of the defendants.

[00:13:49] Speaker 04:
So there's a non-decision.

[00:13:52] Speaker 04:
And I think the circuit law on that is good in the Sheffield.

[00:14:00] Speaker 04:
The Steele Code, the Citizens for a Better Environment, they say, you know, a drive-by jurisdictional determination really is not a jurisdictional determination.

[00:14:13] Speaker 04:
They look at it.

[00:14:14] Speaker 04:
There's always been a problem with outside of the U.S.

[00:14:18] Speaker 04:
The order, the default judgment order that was issued by the district judge at the outset in 2006 is an order of Replevin to bring the documents to the U.S.

[00:14:34] Speaker 04:
Embassy in Moscow.

[00:14:37] Speaker 04:
He knew where those documents were.

[00:14:44] Speaker 01:
Right.

[00:14:45] Speaker 01:
Thank you.

[00:14:46] Speaker 01:
We'll give you a little bit of time first.

[00:14:48] Speaker 01:
We're about almost at the chief of chiefs.

[00:14:53] Speaker 01:
We'll hear from Carmen.

[00:14:56] Speaker 01:
I'll leave this now on the standing in the television.

[00:15:01] Speaker 03:
Good morning, Your Honors.

[00:15:01] Speaker 03:
May I please report?

[00:15:03] Speaker 03:
The court has an appellant jurisdiction because the appellants could appeal the denial of the motion without prejudice to obtain and deny with prejudice.

[00:15:13] Speaker 03:
This is clear from the El Paso case in this circuit and others.

[00:15:17] Speaker 03:
contested this reasoning, and nor could it.

[00:15:21] Speaker 03:
Here, the denial with prejudice is what was required, given the uncurable jurisdictional defect, as Your Honor just referred to, that the property is in the Russian Federation.

[00:15:33] Speaker 03:
There's no allegation that it wouldn't be.

[00:15:35] Speaker 03:
If the property somehow came to the United States, this would be a completely different case.

[00:15:39] Speaker 03:
Because of that, no one disputes that the property is in Russia, and no allegation of additional facts would change the 1605A3 analysis.

[00:15:50] Speaker 03:
For that, this misdemeanor of prejudice is required.

[00:15:54] Speaker 03:
And Ibad is wrong that we are appealing the opinion and not the order.

[00:15:59] Speaker 03:
Of course, a portion of the order says it's a denial without prejudice.

[00:16:04] Speaker 03:
We are appealing that.

[00:16:05] Speaker 03:
Moreover, the immunity issues that are raised in appellants' produce

[00:16:09] Speaker 03:
are necessarily included in the district court's order on notice under 1610C.

[00:16:16] Speaker 03:
The TIG case, the court had to assess its jurisdiction and immunity issues before getting to a post-judgment issue about this.

[00:16:26] Speaker 02:
I just wanted to make a reference to our judicial finality.

[00:16:29] Speaker 02:
So clarifying, we're looking at this under claim of exclusion, by issue of exclusion, or lawful case, just so that whatever opinion we would write

[00:16:39] Speaker 02:
we would discuss.

[00:16:41] Speaker 03:
We believe that it would affect the finality of the subject matter jurisdiction issue, the Bell helicopter case controls here, that because there was a default judgment, the issue of subject matter jurisdiction has to be addressed.

[00:16:59] Speaker 03:
As Ms.

[00:16:59] Speaker 03:
Lam explained, it was not final.

[00:17:02] Speaker 03:
There was no decision on Russia's immune systems.

[00:17:05] Speaker 03:
This is very much like the Sudan-Biolan case,

[00:17:08] Speaker 03:
and to your honor's question about where does it end?

[00:17:15] Speaker 03:
We don't need to address that here because a motion to dismiss with me raising some jurisdictional issues is very common for a sovereign to raise some issue in the motion to dismiss and then come back later and have additional jurisdictional issues considered whether that's a

[00:17:34] Speaker 03:
first a factual, facial challenge to the complaint, and then later, factual judgment.

[00:17:39] Speaker 03:
We don't have that here.

[00:17:40] Speaker 03:
The only ruling on Russia's subject matter jurisdiction issue, Russia's community, was in the default judgment context, and because of that, the practical concepts framework applies.

[00:17:53] Speaker 03:
There is no law of the chief on this issue.

[00:17:56] Speaker 03:
And, yeah.

[00:17:59] Speaker 01:
Can I add a few things on your, for one second?

[00:18:01] Speaker 01:
So, why do we have a lot of lawyers here?

[00:18:04] Speaker 01:
review authority over attachment immunity as opposed to jurisdictional immunity, given that one of the prerequisites to collateral review is that the issue of inclusiveness is solved.

[00:18:16] Speaker 03:
The issue of, so within our brief, the two issues of attachment immunity, both are conclusively decided.

[00:18:25] Speaker 03:
The court

[00:18:30] Speaker 03:
all of the collateral order factors do apply.

[00:18:33] Speaker 03:
And the Seventh Circuit's decision in Rubin and the Fifth Circuit's decision in FG Hemisphere versus Congo are both constructed on this point.

[00:18:40] Speaker 03:
Attachment immunity issues can also satisfy the collateral order doctrine.

[00:18:47] Speaker 03:
The main factor is conclusively decided because Judge Lambert was clear that he has no intent to revisit these issues that we have raised.

[00:18:56] Speaker 03:
He says that the only thing left to decide when

[00:19:00] Speaker 03:
when Habbad removes to attach is the issue of veil piercing.

[00:19:05] Speaker 03:
So those two issues are inclusively decided.

[00:19:08] Speaker 03:
Further, they are completely separate from the merits of the veil piercing question or whether there is commercial property identified in the United States.

[00:19:17] Speaker 03:
And third, they are effectively unreviewable because the whole point of immunity, again, from the property, the property shouldn't have to be attached in order for these

[00:19:30] Speaker 03:
issues to be considered.

[00:19:33] Speaker 03:
So the point of the immunity applies equally here.

[00:19:37] Speaker 03:
That is what the 7th Circuit said in room about the issues.

[00:19:44] Speaker 01:
Thank you.

[00:19:55] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:19:56] Speaker 00:
My name is Robert Parker from Elie Chabad, with me at counsel table, Steve Lieberman.

[00:20:01] Speaker 00:
If it please the Court, I'd like to take the issues in the same order that opposing counsel took them, but I would like to start with a preliminary point that seems to have gotten lost, and that is Chabad 2, where in Chabad 2, this court ruled that these parties at Allen's table, that is 10X,

[00:20:22] Speaker 00:
There's the same party that's currently represented in the appellant's table, doesn't have standing to challenge jurisdiction.

[00:20:32] Speaker 00:
They brought us Rule 60B challenge jurisdiction.

[00:20:35] Speaker 00:
This court addressed that in PABOD 2, said they did not have standing.

[00:20:40] Speaker 00:
We raised that point in our brief in their reply, 10X said, well, we didn't bring the case under Rule 60.

[00:20:47] Speaker 00:
We didn't bring this motion under Rule 60B.

[00:20:50] Speaker 00:
Well, then what basis do they have to challenge jurisdiction in the first place?

[00:20:54] Speaker 00:
What vehicle did they use to challenge jurisdiction if not Rule 60B?

[00:20:59] Speaker 00:
If Russia were here today, Russia itself would have to use Rule 60B to challenge jurisdiction.

[00:21:05] Speaker 00:
So if they're not challenging, again, under Rule 60B, they have no standing.

[00:21:11] Speaker 00:
That's this court's decision about to.

[00:21:14] Speaker 00:
And by their own admission, they have no basis for actually bringing that issue before the court.

[00:21:21] Speaker 01:
But let's assume that they have no standing with respect to the merits of the lawsuit.

[00:21:29] Speaker 01:
I mean, they filed a motion to quash, right?

[00:21:32] Speaker 01:
That's what we are hearing.

[00:21:35] Speaker 01:
So what does Rule 60B have to do with asserting a jurisdiction that's in motion to quash?

[00:21:44] Speaker 00:
Your Honor, in Habbat 2, they filed a motion to quash.

[00:21:48] Speaker 00:
Judge Lambert denied that.

[00:21:51] Speaker 00:
motion.

[00:21:52] Speaker 00:
Rather than file a appeal, direct appeal from that motion, they filed a motion challenging jurisdiction under Rule 60B.

[00:22:02] Speaker 00:
Judge Lamberth denied that motion again.

[00:22:04] Speaker 00:
It came up before this court in Kabbad 2, and in Kabbad 2, the court said, no, you do not have standing to challenge jurisdiction.

[00:22:12] Speaker 00:
They're not appealing from the motion to quash.

[00:22:15] Speaker 00:
That's long, the denial of the motion to quash, that's long passed.

[00:22:19] Speaker 00:
They're not appealing from the denial of their Rule 60B motion.

[00:22:23] Speaker 00:
The court already held that they don't have standing to challenge jurisdiction of the Rule 60B motion.

[00:22:28] Speaker 00:
So my question is, what is their basis for challenging jurisdiction in this case?

[00:22:33] Speaker 00:
We don't know.

[00:22:33] Speaker 00:
They haven't said.

[00:22:37] Speaker 00:
But.

[00:22:37] Speaker 01:
I mean, they have to.

[00:22:41] Speaker 01:
They're subject to attack, right?

[00:22:44] Speaker 00:
They are subject to attack.

[00:22:46] Speaker 01:
So how are they supposed to object to attack?

[00:22:49] Speaker 00:
Their objection to attachment is that, in fact, what you heard Ms.

[00:22:54] Speaker 00:
Lam say earlier on, their objection to attachment is, we are not the alter ego of the Russian Federation.

[00:23:01] Speaker 00:
That's their objection to attachment.

[00:23:02] Speaker 00:
In order to attach their property, we have to show some connection between 10X and the Russian Federation.

[00:23:08] Speaker 00:
That's the issue that the district court in this case reserved and did not decide.

[00:23:14] Speaker 00:
10X said, we're not the Russian Federation.

[00:23:18] Speaker 00:
I mean, I'm being a little flip here, but we have nothing to do with the Russian Federation.

[00:23:22] Speaker 00:
We're not them.

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

[00:23:24] Speaker 00:
That's fine.

[00:23:24] Speaker 00:
They can challenge attachment on that issue.

[00:23:27] Speaker 00:
We disagree, but that's their position.

[00:23:30] Speaker 00:
They're not even taking the position that they're standing in Russia's shoes to challenge jurisdiction.

[00:23:36] Speaker 00:
They're saying you didn't have jurisdiction to address the immunity of that guy over there, Russia.

[00:23:44] Speaker 00:
Therefore, you shouldn't be coming after us.

[00:23:46] Speaker 00:
But that issue has already been decided, and they don't have standing to challenge it.

[00:23:51] Speaker 01:
But if the, let's say, just for our reasons, if there were no jurisdiction over Russia, then that argument could be raised now.

[00:24:05] Speaker 01:
That is a benefit from that, right?

[00:24:09] Speaker 00:
I disagree with the premise, but yeah.

[00:24:13] Speaker 00:
No, let me, I disagree with the premise in this respect.

[00:24:18] Speaker 00:
Let's go back to the basics.

[00:24:20] Speaker 00:
The basics are Judge Ginsburg's decision in practical context.

[00:24:25] Speaker 00:
And she set out a menu of options that a sovereign has when it is sued under the foreign sovereign immunity.

[00:24:33] Speaker 00:
She said option one is you can appear, you can challenge jurisdiction,

[00:24:40] Speaker 00:
If you lose, you can take a direct appeal.

[00:24:43] Speaker 00:
That's it.

[00:24:44] Speaker 00:
You're done.

[00:24:45] Speaker 00:
Or the sovereign can say, I don't want to play this game.

[00:24:49] Speaker 00:
I'm going to sit out.

[00:24:51] Speaker 00:
And if these people can make out a claim and get a default judgment, then when they try to enforce it, I can jump in and do a challenge jurisdiction there.

[00:25:04] Speaker 00:
Those are the two menu items.

[00:25:06] Speaker 00:
Those are just the two items on the menu.

[00:25:09] Speaker 00:
clearly chose option one on the menu.

[00:25:12] Speaker 00:
They appeared, they challenged jurisdiction, they lost, and they disappeared.

[00:25:20] Speaker 00:
They did not take option two.

[00:25:22] Speaker 00:
They did not default and not challenge jurisdiction and wait for post-judgment, of course.

[00:25:29] Speaker 00:
So that's where the race due to quota issue comes from.

[00:25:33] Speaker 00:
They had to follow one of those two options.

[00:25:37] Speaker 01:
If I may.

[00:25:39] Speaker 01:
I disagree with you that the way the practical concepts formula is laid out in that opinion itself, it gives you support of your submission under a certain finale.

[00:25:48] Speaker 01:
What about all this?

[00:25:49] Speaker 01:
So the Sudan came along later, and it actually cites practical concepts.

[00:25:53] Speaker 01:
Correct.

[00:25:54] Speaker 01:
And in Sudan, the facts are pretty parallel.

[00:25:56] Speaker 01:
Correct.

[00:25:56] Speaker 01:
You have a collateral challenge by foreign sovereign, and it wasn't that the foreign sovereign was out the entire time in the first generation.

[00:26:05] Speaker 00:
If you look at Owens, what Sudan did was they took both options in parallel.

[00:26:12] Speaker 00:
So if you look at the very beginning of the opinion, what happened in Owens was Sudan, there was a lot of back and forth because they didn't pay their attorneys.

[00:26:20] Speaker 00:
But essentially, to put it short, Sudan defaulted when there was a default judgment entered against them.

[00:26:28] Speaker 00:
They jumped back into the case and they filed a direct appeal.

[00:26:37] Speaker 00:
That's option one of practical concepts.

[00:26:41] Speaker 00:
You can challenge jurisdiction in the main case on direct appeal.

[00:26:46] Speaker 00:
I guess either as a belt and suspenders kind of approach or to cover their bases.

[00:26:53] Speaker 00:
They also filed a motion with the district court to vacate the default judgment.

[00:26:59] Speaker 00:
That's option two under parallel context.

[00:27:07] Speaker 00:
But there was no race judicata issue there because there had been no final appealed decision

[00:27:14] Speaker 00:
okay, as there was here establishing conclusively that the district court had jurisdiction.

[00:27:23] Speaker 01:
Okay.

[00:27:25] Speaker 01:
If a party can exercise both options under practical concept, that you mean all of these, then it's not an either or's?

[00:27:32] Speaker 00:
It is an either or in the sense that if you, what practical context the first option is, if you challenge jurisdiction

[00:27:42] Speaker 00:
take a direct appeal and lose, you're done.

[00:27:46] Speaker 00:
Owens took the direct appeal approach and the final approach at the same time.

[00:27:52] Speaker 00:
Russia just took option one.

[00:27:56] Speaker 00:
Russia just took option one, said, I'm challenging jurisdiction.

[00:28:02] Speaker 00:
I'm asserting, and this is very important, your honor, we may disagree on Dushan Pett.

[00:28:11] Speaker 00:
But I think there's no disagreement that this court, the district court and this court ruled that there was jurisdiction under FSIA with respect to these claims that Chabad had brought against these defendants.

[00:28:27] Speaker 00:
There may not have been discussion about Russia versus one of the other defendants, but certainly the courts decided that the district court had jurisdiction over Chabad's claims.

[00:28:38] Speaker 00:
That went to final judgment.

[00:28:40] Speaker 00:
the district court, this court of firm, that's practical concepts, option one.

[00:28:48] Speaker 00:
And Russia.

[00:28:50] Speaker 01:
So one aspect of practical concepts, at least something that gives it a due divorce, is that you shouldn't have the same party coming back and having a second crack at it.

[00:29:00] Speaker 01:
And one of the distinctions here is that it's actually not the same party.

[00:29:06] Speaker 01:
Because it was Russia, and now we have

[00:29:09] Speaker 00:
And that's why they have the standing problem as well, because it's not Russia.

[00:29:13] Speaker 01:
But if you take that one, what you think we exactly have to do, if you take that over to the practical concepts issue, then there is something a little bit odd or anomalous about applying practical concepts and the other cases on which it rested, springboard case that cited, all of which involve the same portal.

[00:29:33] Speaker 01:
And here we have somebody else.

[00:29:36] Speaker 00:
It is anomalous, but it's not anomalous in the sense that there's sort of some concern that 10X won't get it staying in court.

[00:29:48] Speaker 00:
When we go back to the district court, we will have to say to the district court that 10X property is subject to attachment because 10X is the alter ego in the Russian Federation.

[00:30:00] Speaker 00:
If we win on that point, that is if 10X is in fact the alter ego of the Russian Federation,

[00:30:05] Speaker 00:
then why should they get a second bite of the apple?

[00:30:08] Speaker 00:
Because they're the alter ego of the party that limited in the first case.

[00:30:13] Speaker 00:
If the district court says they're not the alter ego of the Russian Federation, then the district court will say, then there's a property is not subject to attachment.

[00:30:24] Speaker 00:
So it's not like they're caught in a bind.

[00:30:26] Speaker 00:
It's like, it's rather they wanna have it both ways.

[00:30:30] Speaker 00:
They wanna be treated as the Russian Federation for purposes of, excuse me,

[00:30:34] Speaker 00:
for purposes of standing and race judicata, but they don't want to be treated as the Russian Federation for purposes of attachment, because that's the issue we're going to have to decide when we go back to the district.

[00:30:49] Speaker 01:
Do you think on the merits of the jurisdictional issue, if a case comes up tomorrow, and it's filed in the first instance, and it involves these same kinds of facts, where it's undisputed that under

[00:31:04] Speaker 01:
the way that the judge of the court looked at it, the foreign sovereign, there's no jurisdiction over the foreign sovereign in that the first prong of the commercial nexus part is not met.

[00:31:15] Speaker 01:
You have to go to the second prong of the commercial nexus prong in order to get jurisdiction over the foreign sovereign itself.

[00:31:20] Speaker 01:
Do you think it's actually an open issue in our court, and not a case to come out, or do you think that's now decided because of the judge?

[00:31:29] Speaker 00:
Your Honor, respectfully, I think that Judge Lambert is correct.

[00:31:33] Speaker 00:
I think there are two strains of thought on this court with respect to how to interpret 1501, 1605A3, the expropriation acceptance, that if you get to that issue, then it should be decided either by the court en banc or maybe even by, at some point, by a higher authority.

[00:31:57] Speaker 01:
So what should a panel do?

[00:32:00] Speaker 01:
If a panel gets that issue tomorrow,

[00:32:04] Speaker 01:
The panel can say, the panel's gotta decide a case before it.

[00:32:10] Speaker 01:
What would the panel do?

[00:32:12] Speaker 00:
I think my advice to the panel would be to go back to the language of the statute and start from the beginning and apply the language.

[00:32:23] Speaker 01:
And just ignore the fact that we have a decision that's shuffled that has come along and actually wrestled with how I want and outline what it thinks.

[00:32:34] Speaker 01:
of the analysts, shit.

[00:32:38] Speaker 00:
I agree with you, Your Honor, that De Chapelle said that having looked at De Chapelle and Simon, Simon should prevail even though De Chapelle was first.

[00:32:52] Speaker 00:
But I do agree also, as I said with Judge Lambert, that there are parallel and conflicting strains in this circuit stirs on this issue.

[00:33:01] Speaker 00:
May I take two minutes to talk about the attachment issue?

[00:33:04] Speaker 01:
If you can take the chair, if you can do it briefly.

[00:33:09] Speaker 00:
Okay.

[00:33:10] Speaker 00:
Unless the court has questions, I'm not going to address the Pellet jurisdiction issue.

[00:33:14] Speaker 01:
That's fine.

[00:33:14] Speaker 00:
Okay.

[00:33:15] Speaker 00:
So forgive me, I appreciate the accommodation you're on.

[00:33:18] Speaker 00:
Just with respect to the attachment issue, the MSIA, at least to this extent, is very early.

[00:33:26] Speaker 00:
The expropriation section is section 1605A3.

[00:33:31] Speaker 00:
It does not have a territorial restriction with respect to where the expropriated property is.

[00:33:38] Speaker 00:
That doesn't even make sense.

[00:33:40] Speaker 00:
If Russia expropriated a mine or a factory or a building, of course it wouldn't be in the United States.

[00:33:48] Speaker 00:
The expropriation takes place overseas.

[00:33:51] Speaker 00:
Okay.

[00:33:53] Speaker 00:
Once the court finds that the expropriation exception applies, that there's been an awful expropriation,

[00:34:00] Speaker 00:
Again, there's no paratorial limit in that provision with respect to where the property is.

[00:34:06] Speaker 00:
We then go and we look at 1606, which says, once you've found a violation, the defendant is subject or the district court has the authority to issue the same remedies as it would as if the defendant were a private party with the exception of punitive damages, which is not an issue.

[00:34:24] Speaker 00:
So the court, I mean, plainly, the district court has

[00:34:28] Speaker 00:
authority to order the return of unlawfully stolen property.

[00:34:32] Speaker 00:
It's a repellent action.

[00:34:35] Speaker 00:
I think that our opponents ignore section 1606.

[00:34:42] Speaker 00:
The territorial restriction comes in after you have a judgment.

[00:34:47] Speaker 00:
When there's a proposed judgment activity, it says you can attach property in satisfaction of your judgment,

[00:34:55] Speaker 00:
But that property has to be in the U.S.

[00:34:57] Speaker 00:
And we've identified Russian property in the U.S., our position is, that 10X's uranium is Russian property imported into the United States for commercial purposes.

[00:35:08] Speaker 00:
So therefore, there's no territorial restriction in the statute on the district court's authority to order the return of the unlawfully season.

[00:35:23] Speaker 00:
That's,

[00:35:23] Speaker 00:
There are other nuances to their argument, but given the time, I'll leave it there if the court has no further questions about any of these issues.

[00:35:32] Speaker 01:
Thank you, Your Honor.

[00:35:33] Speaker 01:
Thank you, Your Honor.

[00:35:39] Speaker 01:
Sam, you have for a minute to move out.

[00:35:41] Speaker 01:
Give me your minute.

[00:35:43] Speaker 04:
A quick minute.

[00:35:46] Speaker 04:
You need FSIA jurisdiction for both

[00:35:50] Speaker 04:
jurisdiction under 160583 and for the attachment.

[00:35:55] Speaker 04:
And when this court is interpreting the scope of both, obviously, you must look at the language of the statute.

[00:36:05] Speaker 04:
And under the Restatement IV and Foreign Relations 404, it's clear you don't make extraterritorial

[00:36:16] Speaker 04:
interpretations unless there's clear congressional intent.

[00:36:21] Speaker 04:
And this is the opposite case.

[00:36:24] Speaker 04:
There's clear statement that in fact it's property in the United States.

[00:36:31] Speaker 04:
The other point we heard certainly a lot about the finality.

[00:36:39] Speaker 04:
You can't have finality if a court doesn't decide an issue.

[00:36:45] Speaker 04:
That's what happened here.

[00:36:47] Speaker 04:
The door was open.

[00:36:50] Speaker 01:
Thank you, Council.

[00:36:53] Speaker 01:
Ms.

[00:36:53] Speaker 01:
Keighley, we'll give you the minute, and you have it.

[00:36:57] Speaker 03:
Thank you, Your Honor.

[00:36:58] Speaker 03:
Just two points.

[00:36:59] Speaker 03:
To clarify one aspect on the particular history of the Owens case, there was no more finality as to the immunity of Russian Federation than there was as to Sudan.

[00:37:10] Speaker 03:
Sudan had moved to dismiss and also appealed that decision

[00:37:15] Speaker 03:
would also appeal before it defaulted.

[00:37:17] Speaker 03:
There's the same situation here, although the decisions on immunity in our case didn't even deal with the Russian Federation.

[00:37:25] Speaker 03:
They actually dealt with agencies and instrumentalities.

[00:37:27] Speaker 03:
So as Ms.

[00:37:28] Speaker 03:
Land said, there's even less of a determination in this case as to the immunity of the Russian Federation compared to the discussion in Owens, pre-default of the immunity of Sudan.

[00:37:39] Speaker 03:
And then second, on the standing issue, I think that

[00:37:43] Speaker 03:
Your honor, I touched on this because 10XUSA's assets are directly under attack in the motion to attack, which has been refiled in the district court.

[00:37:53] Speaker 03:
So again, 10XUSA and these assets are being pursued by Habbad.

[00:37:59] Speaker 03:
They don't deny this.

[00:38:00] Speaker 03:
And it's black letter law.

[00:38:02] Speaker 03:
The party whose assets are being attacked has

[00:38:06] Speaker 03:
jurisdiction outstanding, I'm sorry to challenge the underlying subject matter jurisdiction of the court to enter the order of being enforced against it.

[00:38:13] Speaker 03:
That's the Heralds v. Cuba case, Pirellius, and the Second Circuit, Carajabotas.

[00:38:17] Speaker 03:
We have a number of them.

[00:38:18] Speaker 03:
Thank you so much.

[00:38:20] Speaker 01:
Thank you, counsel.

[00:38:21] Speaker 01:
Thank you all, counsel.

[00:38:22] Speaker 01:
We'll take this case when I'm finished.