[00:00:00] Speaker 01: Case number 23 of 1776. [00:00:02] Speaker 01: Auguste Cabrera et al., K.E.F.B. [00:00:06] Speaker 01: by and for her next Frank Horton speakers at balance, versus Islamic Republic of Iran. [00:00:12] Speaker 01: Ms. [00:00:12] Speaker 01: Konopczynski for the at balance. [00:00:14] Speaker 01: Mr. McIntyre, appointed amicus cario. [00:00:31] Speaker 03: Good morning. [00:00:31] Speaker 02: Good morning, your honor. [00:00:33] Speaker 02: May I please the court? [00:00:34] Speaker 02: Grace Konopczynski on behalf of Appellant KEFV, and I've reserved three minutes for rebuttal. [00:00:40] Speaker 02: An Iranian-sponsored terrorist attack in Afghanistan robbed KEFV of her father just two months before she was born. [00:00:49] Speaker 02: Now, the district court correctly awarded salatium damages under the FSIA's private right of action to other family member plaintiffs associated with the attack. [00:00:58] Speaker 02: including KEFV's mother and siblings and another victim's two-month-old daughter. [00:01:04] Speaker 02: But it dismissed KEFV's claim for lack of standing, failing to distinguish between in utero children and later conceived children. [00:01:13] Speaker 02: This court should reverse the district court's decision for two reasons. [00:01:18] Speaker 02: First, it was inconsistent with the state court consensus that in utero children who are subsequently born alive can assert the same causes of action as already born children. [00:01:31] Speaker 02: Second, the district court's rationale for denying recovery, primarily to avoid a limitless class of plaintiffs that could remain open for decades, [00:01:40] Speaker 02: simply does not apply to plaintiffs who are conceived before an attack, and a limited readily discernible class of plaintiffs. [00:01:49] Speaker 02: I'll start with the scope of the private right of action. [00:01:51] Speaker 02: Section 1605 AC creates a federal private right of action for US citizens for personal injury or death, and it authorizes damages which may include salatium damages. [00:02:04] Speaker 02: Now, salatium damages originally came from the wrongful death context, and they seek to compensate for two harms, for the grief and mental anguish from losing a family member, and for the loss of society, the loss of love, care, companionship, guidance that family members provide to each other. [00:02:22] Speaker 02: And this court has instructed the district courts to look to the law of the states and to general tort law in deciding what injuries are compensable under this statute. [00:02:32] Speaker 02: Given the use of salatium, [00:02:34] Speaker 02: and the preamendment history of claims that plaintiffs could bring under the pass-through approach. [00:02:40] Speaker 02: The most relevant causes of action are wrongful death statutes, loss of consortium claims, and intentional infliction of emotional distress. [00:02:48] Speaker 04: Could I just ask you about why wrongful death statutes are relevant? [00:02:53] Speaker 04: And the source of my question is just the words we've used in Bettis and Frankel, which talk about common law. [00:02:59] Speaker 04: And as you, I think, would agree, wrongful death statutes are statutes. [00:03:03] Speaker 04: And so it just sort of raises the question of why we would be looking to those statutes. [00:03:08] Speaker 04: Could you address that? [00:03:09] Speaker 02: Of course, Your Honor, so you're correct that the language used has referred to common law, but it is referring also to just the law of the states. [00:03:17] Speaker 02: And it so happens that because wrongful death statutes weren't recognized in England at common law, but every state has now enacted a wrongful death statute. [00:03:27] Speaker 02: And that is how family members are able to recover for the death of a loved one is through that statutory claim. [00:03:33] Speaker 02: So I think when the court [00:03:34] Speaker 02: was speaking to the body of law of the states. [00:03:37] Speaker 02: It wasn't just referring to their common law decisions. [00:03:40] Speaker 05: Can you give us any assurance that those, and you may be able to, any assurance that those two cases would have come out the same way if the courts had considered not just common law, but state statutory law as well? [00:03:54] Speaker 02: Well, I think the court in Frankel said that the district court's decision in Flatow was the best description of what is included within the context of salation damages. [00:04:05] Speaker 02: And Flatow extensively discusses the wrongful death context and that history. [00:04:10] Speaker 02: And so the court was looking to both of those causes of action in determining what claims were compensable under the program. [00:04:18] Speaker 00: But Frankel's a little confused, too. [00:04:20] Speaker 00: because it says at one point that the courts, the federal courts have no authority to create common law and then goes on to instruct how to find common law. [00:04:32] Speaker 00: And the case that they cite for the proposition that the court can't create common law was a pre-amendment case. [00:04:44] Speaker 00: So that's just slipped in there and I don't know whether we ought to pay any attention to that at all. [00:04:50] Speaker 00: But I was thinking about to answer the question, and I've had this question too, if we're authorized to create common law, where do we look? [00:05:02] Speaker 00: And the usual idea of a common law is [00:05:06] Speaker 00: that at court without statutes gets a body of cases and it derives a principle from it and then applies that principle in the next case. [00:05:17] Speaker 00: And that's not necessarily what we're talking about here because it seems to me that the one thing that's, the only thing that's particularly clear is that Congress wanted a uniform federal cause of action, not different from state to state. [00:05:35] Speaker 00: And one of the ways of ensuring that is to look at everything the various states have done. [00:05:42] Speaker 02: That's correct, your honor. [00:05:44] Speaker 02: I think that the creating a uniform cause of action is the key point here. [00:05:49] Speaker 02: And so there certainly is room for dispute over whether when this court is interpreting a federal statute and creating a uniform rule of decision, do we call that federal common law or not? [00:06:01] Speaker 02: But for the statements in Frankel and Bettis, I'd be inclined to agree with you that that is the court creating federal common law. [00:06:08] Speaker 02: But there is no dispute about what the district courts are actually doing. [00:06:12] Speaker 00: If I might add, I mean, before the amendment to the FISA, the court, and I sat on some of these cases, I've been around long enough to be pre amendment, but you would look at state law, but you wouldn't look just at the state common law, you'd look at the statutes too. [00:06:30] Speaker 02: Correct, Your Honor. [00:06:31] Speaker 00: Before the amendment, and it seems odd to me to say, [00:06:34] Speaker 00: that, okay, Congress amended it to make it more uniform, but now you can't look at the statutes. [00:06:41] Speaker 02: Correct, Your Honor, but before 2008, when the federal private right of action was enacted, you looked to the specific law of the relevant state. [00:06:50] Speaker 02: So whatever state the plaintiff was resided in, that was the law that applied, which led to disparate recovery. [00:06:57] Speaker 02: It led to family members who happened to reside in Louisiana not recovering, whereas a family member whose father was killed in the exact same attack who lived in Maryland could recover. [00:07:07] Speaker 02: And so Congress created a federal private right of action to ensure that there was uniformity across all plaintiffs and that all plaintiffs could assert this claim under the federal private right of action. [00:07:19] Speaker 02: It just said, [00:07:20] Speaker 02: This court has said because it didn't define what sorts of personal injuries are relevant under the statute, that it should look to those injuries that are recognizable at the common law and in state statutes. [00:07:33] Speaker 02: And those injuries, the death of a family member, [00:07:36] Speaker 02: and the loss of consortium, loss of salatium, mental suffering, and anguish that comes from that is certainly recognizable by all the states. [00:07:44] Speaker 04: So just stepping back a little bit, do you think it's, is it oversimplifying to say the question we should have in mind is could a plaintiff like this recover this type of damages in most states in the country or a lot of states in the country? [00:07:59] Speaker 02: I don't think that's an oversimplification at all, Your Honor. [00:08:01] Speaker 02: And we pointed to at least 16 jurisdictions that have held [00:08:06] Speaker 02: that an in utero plaintiff should be able to assert the same causes of action as an already born plaintiff in the context of the wrongful death and loss of consortium context. [00:08:16] Speaker 02: So I think that informs this court's decision that in utero plaintiffs are within the scope of injuries that is recognizable under this statute because their injuries are recognized by a number of the states. [00:08:30] Speaker 02: And then we also pointed. [00:08:32] Speaker 05: What's the right denominator? [00:08:34] Speaker 05: We're looking to all the states in the country, or we're looking to all the states in the country that have considered this question. [00:08:39] Speaker 02: All the states that have considered the question, Your Honor. [00:08:42] Speaker 02: And so here it's 100%. [00:08:43] Speaker 05: Why is that the right denomination? [00:08:45] Speaker 02: Well, because the court can't be silent on this issue. [00:08:48] Speaker 02: Those other 34 states haven't resolved whether an in utero plaintiff can recover or not. [00:08:53] Speaker 02: But here we have 100% of the states that have considered the issue have held that an in utero plaintiff should be treated the same as an already born plaintiff in terms of their ability to assert this claim. [00:09:05] Speaker 02: Which is also reinforced by the second restatement of torts, which recognizes that in utero plaintiffs should be able to recover for torts committed while they were in utero and for the injuries that they suffer from those torts. [00:09:20] Speaker 02: And so the district court should have followed that rationale. [00:09:25] Speaker 02: Instead, the district court's rationale was flawed for three days. [00:09:29] Speaker 00: Did the restatement cover non-physical injury to the fetus? [00:09:35] Speaker 02: It's primarily directed at physical injuries, yes, Your Honor. [00:09:39] Speaker 00: But a number of the cases- So where does the idea of non-physical injury come from? [00:09:46] Speaker 02: So Angelini and Larroso two of the district two of the state court cases that we just that we cited as well as Anderson a district court case from. [00:09:55] Speaker 02: this circuit, which was the only district court case that actually allowed an in utero plaintiff to recover, all analogized to the physical tort context. [00:10:05] Speaker 02: And it simply, from a first principle standpoint, makes no sense to allow a plaintiff to recover for physical injuries that they suffer while they are in utero, but then deny them recovery for mental injuries and emotional injuries that they suffer because of a tort also committed while they are in utero. [00:10:23] Speaker 02: And that recognition has been made by the state court decisions. [00:10:30] Speaker 02: The fetus has rights when they are born to assert the claim under the statute, your honor. [00:10:35] Speaker 00: I haven't looked. [00:10:38] Speaker 00: In the Supreme Court's Dobbs case, did they rely on any of the sort of arguments you're making here? [00:10:46] Speaker 02: I don't think that Dobbs changes the outcome of this case at all. [00:10:49] Speaker 02: Most of the decisions that we cited. [00:10:51] Speaker 00: Oh, it would be in your favor. [00:10:52] Speaker 02: Well, yes, Your Honor. [00:10:54] Speaker 02: To the extent that it affects the outcome, it's certainly in our favor. [00:10:58] Speaker 02: But I don't think it's necessary to resolve the issue, the wrongful death statutes, and the recognition of the states. [00:11:05] Speaker 05: Why would it be in your favor? [00:11:08] Speaker 02: advances an additional recognition that an in utero plaintiff should be allowed to recover and should be able to bring claims under this cause of action. [00:11:18] Speaker 02: But it's not necessary to resolve because she certainly was a national of the United States when she brought her claim. [00:11:24] Speaker 02: So we're not asking the court to rule that an in utero plaintiff is a person or a national of the United States or anything like that. [00:11:34] Speaker 05: I was in a very different route. [00:11:36] Speaker 04: Well, me too, but I'll just go ahead. [00:11:42] Speaker 04: For the IIED tort and the restatement second in 46.2, my understanding of what district courts have said for why we should disregard the presence requirement is essentially that in terrorism cases, the tortfeasor intends to harm absent third parties and so [00:12:03] Speaker 04: That's why we should get rid of the presence requirement. [00:12:05] Speaker 04: Is that a fair description of what they've done? [00:12:07] Speaker 02: Yes, they have said that the president's requirement is not necessary because of the limitations of section 1605 AC and the unique nature of Terrorism that it is directed not just at the original direct victim, but at their family members as well I'm just a little bit confused about that based on the restatement and the elements of this tort that's set out there because an intent to harm the plaintiff is always an element [00:12:34] Speaker 04: Right. [00:12:35] Speaker 04: And so then to say, well, this case is special because the defendant intended to harm the plaintiff. [00:12:43] Speaker 04: And so we get rid of this other element of presence. [00:12:46] Speaker 04: It struck me as at least a little bit odd. [00:12:48] Speaker 04: And I'm wondering if you have thought about that. [00:12:50] Speaker 02: Right. [00:12:51] Speaker 02: So under 46.1, there's an intent to harm the direct victim. [00:12:56] Speaker 02: But under 46.2, the immediate family members of the direct victim can [00:13:02] Speaker 02: recover because it's presumed that a tortfeasor who is harming an individual is at least reckless to the fact that they will harm their immediate family members as well. [00:13:13] Speaker 02: But I will also say your honor that this isn't a claim for intentional infliction of emotional distress section 1605 AC. [00:13:20] Speaker 02: is a much broader claim for personal injury, including salation damages. [00:13:25] Speaker 02: And so while district courts have looked to the tort of intentional infliction of emotional distress and the restatements provisions, this court should not graft those requirements onto the statute or treat the text of the restatement as if it was the text of a statute. [00:13:42] Speaker 04: Do you think we should basically [00:13:44] Speaker 04: just really focus on wrongful death and loss of consortium in order to rule for your client? [00:13:50] Speaker 04: Do we have to consider the IID issue at all? [00:13:53] Speaker 02: The court doesn't need to reach the presence requirement of the IID issue, certainly. [00:13:58] Speaker 02: And I think the wrongful death statutes provide a sufficient basis for KEFV to recover in their own right. [00:14:06] Speaker 02: So the court does not actually need to address the presence requirement. [00:14:11] Speaker 05: My question was actually pretty connected to Judge Garcia's question. [00:14:16] Speaker 05: 1605 a a which begins with subsection one no immunity goes to surprisingly the foreign states immunity. [00:14:31] Speaker 05: Then 1605 AC goes to the private right of action and you say in your reply brief that. [00:14:45] Speaker 05: any presence requirement goes to the merits, not this court's subject matter. [00:14:51] Speaker 05: Do you mean by that that any presence requirement goes to the meaning of C rather than the meaning of A? [00:14:59] Speaker 02: Correct, Your Honor. [00:15:00] Speaker 02: There's no question that this court has subject matter jurisdiction here. [00:15:03] Speaker 05: And then I guess if that's the case, why wouldn't the same thing apply to any age requirement in C? [00:15:10] Speaker 02: To any age requirement? [00:15:11] Speaker 05: Right, the requirement that the district court imposed that the child be a certain age, that the child be born as opposed to unborn. [00:15:20] Speaker 02: So the court dismissed her claim for lack of standing. [00:15:23] Speaker 02: I think it was using standing in the statutory standing sense and just making a determination that the class of plaintiffs who are born after an attack are simply outside the class of plaintiffs who are eligible to recover under the statute. [00:15:37] Speaker 05: But then it seems like that would be true as well for the presence requirement. [00:15:42] Speaker 02: that it would address the merits of the private right of action, Your Honor? [00:15:47] Speaker 05: Right. [00:15:48] Speaker 05: Well, no. [00:15:49] Speaker 05: If the presence requirement goes to merits, it seems like the age requirement goes to merits. [00:15:56] Speaker 05: I say that like I believe it. [00:15:58] Speaker 05: I'm not saying I agree with that. [00:16:00] Speaker 05: I'm just wondering, if the presence requirement goes to the merits, as opposed to subject matter jurisdiction, why wouldn't the age requirement go to the merits? [00:16:10] Speaker 02: Because the court didn't actually consider the text of the statute and the private right of action. [00:16:16] Speaker 02: It decided that the class of plaintiffs who were in utero at the time of the attack were simply outside of the relevant plaintiffs who could recover, largely for policy reasons, for concern about creating a limitless class of plaintiffs that could remain open for decades. [00:16:33] Speaker 05: But you think the presence requirement goes to the merits, but the age requirement goes to subject matter jurisdiction. [00:16:38] Speaker 02: I think that the, no, I'm sorry, the age requirement, I don't think either goes to subject matter jurisdiction at all. [00:16:43] Speaker 02: Nothing is covered in 1605A1. [00:16:45] Speaker 05: So then why wouldn't we say, hey, there's no immunity because of 1605AA? [00:16:56] Speaker 02: Correct, Your Honor. [00:16:57] Speaker 05: And then any arguments beyond subject matter jurisdiction get forfeited by Iran? [00:17:06] Speaker 02: I think the court should hold that, Your Honor. [00:17:08] Speaker 05: That the only thing wonder if there's something I'm missing. [00:17:12] Speaker 05: I mean, that could have been like a one sentence brief, but I'm not saying it's right. [00:17:16] Speaker 05: I'm just saying looking for your help to see if I'm missing something. [00:17:21] Speaker 02: I don't think you are missing anything. [00:17:22] Speaker 02: Your honor that Iran waived all of their merits arguments by not showing up to defend the judgment below. [00:17:29] Speaker 02: The district court dismissed K E F E's claim for lack of standing. [00:17:33] Speaker 02: And so solely the [00:17:35] Speaker 02: sole issue in front of this court is whether an in utero plaintiff is eligible to even attempt to state a cause of action. [00:17:43] Speaker 02: I think there may be some confusion over how the district court was using the term standing here. [00:17:49] Speaker 05: Yeah, I'm trying not to use that term. [00:17:50] Speaker 05: I'm trying to talk about terms you use, which includes subject matter jurisdiction versus merits. [00:17:56] Speaker 02: Correct. [00:17:56] Speaker 05: And I understand that Iran can't [00:17:59] Speaker 05: in its absence, forfeit its immunity. [00:18:03] Speaker 05: Correct. [00:18:04] Speaker 05: That has to be expressly waived. [00:18:06] Speaker 05: But once we're past the immunity question and we're into the merits question, it seems like maybe Iran can forfeit any merits arguments. [00:18:17] Speaker 05: Yes. [00:18:17] Speaker 05: And if all of this case is now about an age requirement that goes to the merits and Iran is not here [00:18:26] Speaker 05: arguing against your marriage argument, it seems like maybe Iran has forfeited any opposition to your marriage argument. [00:18:35] Speaker 02: Under section 1605A, we still have to prove our case by evidence satisfactory to the district court. [00:18:44] Speaker 02: I think the district court just held that [00:18:46] Speaker 02: For the class of in utero plaintiffs, we had improved our case by evidence. [00:18:50] Speaker 05: And that would be true for the presence requirement. [00:18:52] Speaker 02: Had the district court reached it, yes, the district court could have decided the merits of that issue. [00:18:57] Speaker 02: I see that I am well over my time. [00:18:59] Speaker 04: I want to make sure I understand this issue, too. [00:19:01] Speaker 04: So I guess the way I had been thinking about it is just [00:19:08] Speaker 04: Because of what you said, you have to make a sort of at least threshold meaningful showing to be entitled to a default judgment. [00:19:16] Speaker 04: Part of that is to have a coherent theory of why you're entitled to salation damages. [00:19:21] Speaker 04: So if we were going to go under the IID route, [00:19:25] Speaker 04: We would need to explain sort of maybe the district court didn't mention presence, but we'd have to explain why the presence requirement isn't enforced, just like we would have to explain why the difference between a later born and already born plaintiff doesn't matter. [00:19:42] Speaker 04: In other words, those two questions are on the same playing field here, aren't they? [00:19:47] Speaker 02: Yes. [00:19:48] Speaker 02: I think they both go to the question of whether KEFE can state a claim, not to the question of whether this court has [00:19:55] Speaker 02: subject matter address section. [00:20:01] Speaker 05: OK. [00:20:01] Speaker 05: Thank you. [00:20:02] Speaker 02: Thank you, Your Honor. [00:20:13] Speaker 03: Good morning, Your Honors. [00:20:14] Speaker 03: It may please the court. [00:20:15] Speaker 03: I'm Thomas Burch from the University of Georgia. [00:20:17] Speaker 03: Today, one of my third year students, Mr. Garfield McIntyre, will present argument on our behalf, and I'll be at council table. [00:20:23] Speaker 03: Thank you, Your Honors. [00:20:27] Speaker 05: Welcome, Mr. McIntyre. [00:20:36] Speaker 06: Thank you, Your Honor, and may it please the Court. [00:20:38] Speaker 06: My name is Garfield McIntyre, Jr., and I'll be arguing as amicus curae defending the District Court's decision. [00:20:45] Speaker 06: Faced with interpreting the scope of foreign sovereign immunity, the District Court chose to construe that narrowly, denying salatium damages to KEFV. [00:20:53] Speaker 06: That decision was both reasonable and consistent with generally accepted principles of common law. [00:20:59] Speaker 06: And nothing KEFV has said here today warrants rejecting it. [00:21:02] Speaker 06: This court should affirm. [00:21:04] Speaker 06: I'd like to start with the discussion of the wrongful death statutes because that's where most time was spent. [00:21:10] Speaker 06: As Judge Garcia pointed out, it's questionable under the language of Frankel whether it's appropriate to look to the specific text of a specific state statute if we're looking to create uniformity in the first place. [00:21:21] Speaker 06: The exact words that the court used in Frankel were well-established statements of common law found in state reporters, the restatement of torts, and other respected treatises. [00:21:30] Speaker 06: So we do think that the restatement, most specifically the third and most recent restatement, is the proper source to look to. [00:21:38] Speaker 04: Even with respect to the state wrongful death acts. [00:21:40] Speaker 04: Well, I guess as to one of the things that your own helpful brief says is that [00:21:46] Speaker 04: 35 states, whether through wrongful death statute or loss of consortium action, a child can recover this type of damage. [00:21:59] Speaker 04: And it seems like a straightforward way of thinking about this case is 35 states with those two bodies of law, a child could recover. [00:22:11] Speaker 04: And then nearly every court have considered the question, [00:22:15] Speaker 04: has said that a after-born child can also recover. [00:22:22] Speaker 04: So that KEFV wins. [00:22:24] Speaker 04: What does that sort of simple view of the case overlook? [00:22:28] Speaker 06: Well, first, the 35 states that allow for loss of parental consortium do so under the text of their wrongful death acts. [00:22:36] Speaker 06: But the loss of consortium and salatium aren't exactly the same thing. [00:22:39] Speaker 06: And I point back to flat-tile, where the court acknowledged that there are two separate and distinct harms, as KEFV highlighted. [00:22:45] Speaker 06: but that the preponderant element of salatium damages is mental anguish. [00:22:50] Speaker 06: And it's notable that it's well established that most states don't allow anyone, children, born, allow anyone to recover mental anguish specifically under the wrongful death statutes. [00:23:00] Speaker 06: separate from IED claims, which I will also discuss. [00:23:04] Speaker 06: But on that point, if we look to, it was set 100% was the hit rate. [00:23:09] Speaker 06: But again, that's based upon the text of individual wrongful death statutes. [00:23:13] Speaker 06: So I don't think anything from those statutes with the necessary variation they have across the country can provide a well established consensus. [00:23:21] Speaker 06: I do think that common law laws of consortiums provide a consensus showing [00:23:24] Speaker 06: the key if he cannot recover and that's because most states don't allow for parental common law based laws of consortium claims and the restatement notes that of the twenty one jurisdictions that do courts roughly equally divided on whether unborn children cut so if we're looking at nine states of twenty one even allow the claim [00:23:45] Speaker 06: And that is of all states that even allow for this type of damage to be covered in the first place. [00:23:49] Speaker 06: That's a minority of a minority. [00:23:51] Speaker 06: So I don't think that, you know, state wrongful death statutes, whether they allow loss of parental consortium as an element of damage or the common law loss of consortium, standalone action, provide a basis for... Mr. McIntyre, can you tell me if this sentence is correct? [00:24:09] Speaker 05: In a wrongful death case about the death of a family member, [00:24:16] Speaker 05: I'm not talking about consortium, just wrongful death. [00:24:19] Speaker 05: In a wrongful death case about the death of a family member, no state court has drawn a distinction between in utero children eventually born and already born minor children. [00:24:37] Speaker 06: Not in utero children, no. [00:24:40] Speaker 06: There hasn't been that explicit distinction made. [00:24:45] Speaker 05: I'll let you add in a second. [00:24:47] Speaker 05: I want to see if we're on the same page about just where the case law is, and then you can tell me more about the case law. [00:24:54] Speaker 05: What about in an intentional infliction of emotional distress case? [00:24:58] Speaker 05: Has any state court drawn the distinction between an in utero child eventually born and an already born minor child? [00:25:14] Speaker 06: Typically the case law has not distinguished between a conceived in utero child and a child who is not conceived at all and would be born significantly later. [00:25:31] Speaker 05: That's not my question. [00:25:32] Speaker 05: I'm talking about a child that has not been conceived at all. [00:25:34] Speaker 05: I'm talking about a child in a mother who's eight months pregnant and a child who's been born for two months. [00:25:44] Speaker 05: Has any state court outside of Connecticut in any case distinguished between an eight-month [00:25:55] Speaker 05: child in a mother who's eight months pregnant and a child that's two months born, assuming the child whose mother was pregnant is eventually born. [00:26:03] Speaker 05: I'm not aware of a case that made that specific distinction, Your Honor. [00:26:06] Speaker 05: And I wonder, I'm told I let you add to it, so I will save my next question. [00:26:12] Speaker 06: The last thing that I would say about specifically those statutes is the 12 cases, not 16, that were originally cited in the opening brief, only five of those allow recovery for any type of emotional harm. [00:26:25] Speaker 06: So I think that's really the correct number to be looking at as opposed to the 12 or today 16. [00:26:31] Speaker 06: With respect to section 869, which was discussed, and it was asked whether that could allow for mental injuries, that's certainly not well established. [00:26:39] Speaker 06: We wouldn't dispute that section 869 would allow for a recovery of any physical harm done to the unborn child if the child is later born alive and has a physical manifestation of that injury. [00:26:50] Speaker 05: The district court talked about the [00:26:54] Speaker 05: the problem of a potentially unlimited class. [00:26:58] Speaker 05: But if we limit it to children who are in utero or already born, that's not an unlimited class, is it? [00:27:10] Speaker 06: No, I mean there would necessarily be a fixed number of individuals who would be born at the latest nine months after. [00:27:16] Speaker 05: Can you think of a rational basis to distinguish in this context between [00:27:23] Speaker 05: a child whose mother is eight months pregnant and a baby that's two months old. [00:27:30] Speaker 06: Well, we think that Congress intended to create different types of damages that may be available to different types of plaintiffs depending upon their status. [00:27:39] Speaker 06: And for example, [00:27:41] Speaker 06: Let's say that there had been an allegation by KEFV of an economic harm, lost income from the service member. [00:27:49] Speaker 06: That would be very different because their presence wouldn't be required. [00:27:53] Speaker 06: It wouldn't be required that she necessarily, at least under the current law, be born. [00:27:58] Speaker 06: There would be a lot different considerations to be made with respect to standing. [00:28:02] Speaker 06: Here, it is only salatium damages that is an issue. [00:28:06] Speaker 06: I think that's where we have to get into, can mental damages be recovered under either 869 or the IIED where the plaintiff is not present? [00:28:14] Speaker 05: I think that I didn't, I'm not sure I understand what the rational basis might be between distinguishing in this context between a child whose mother is eight months pregnant and a child that's two months old. [00:28:31] Speaker 05: Maybe there is no rational basis to distinguish them. [00:28:35] Speaker 06: Well, Your Honor, Congress certainly did not make specific findings as to, you know, if they were going to make distinctions between, you know, in utero versus an alive plaintiff. [00:28:46] Speaker 06: I can say that, you know, because there are different types of damages available, all of which may not necessarily require the plaintiff to be alive at the time that the attack occurred. [00:28:57] Speaker 06: if they were in utero, again, specifically the economic harms is the one that would most squarely fit with that, that it is possible that Congress could have intended to allow certain plaintiffs to get certain types of damages while not allowing others. [00:29:09] Speaker 05: But with salatium damages, and I understand we pointed you to argue this position, so I'm grateful to you for helping me think through these issues, with regard to salatium damages in the context of this case, if I can't find [00:29:25] Speaker 05: a rational basis to distinguish between a child whose mother is eight months pregnant and a two month old baby. [00:29:32] Speaker 05: It seems like the plaintiff here might even have an equal protection claim. [00:29:39] Speaker 05: If there's no rational basis for the district court to distinguish or to interpret Congress a statute to distinguish between a child whose mother is eight months pregnant and a two month old baby. [00:29:51] Speaker 06: Well, to that I'd highlight that, you know, it's been a more recent development. [00:29:57] Speaker 06: I'd say that we've shifted towards, I'm going to say widespread acceptance that, you know, more states in some respects, in some degrees, are allowing certain types of claims by unborn plaintiffs. [00:30:09] Speaker 06: And, you know, Congress would have been aware of the legislative history at the time. [00:30:14] Speaker 06: But that was a different history, I think, than today where this would have perhaps more widespread acceptance if Congress were to enact it today. [00:30:21] Speaker 06: I think that sort of policy would make a, that would be more impactful. [00:30:27] Speaker 06: With respect to equal protection, there are bases that Congress could have potentially considered, again, not allowing certain plaintiffs for certain reasons to recover certain types of damages, I think is the most prescient. [00:30:40] Speaker 06: And the reason would have to be rational, though. [00:30:42] Speaker 06: Yeah, and I think that it's a mix of allowing plaintiffs to recover for these types of terrorist attacks while also limiting the scope of liability. [00:30:49] Speaker 06: So I think there is a balance. [00:30:50] Speaker 06: And part of that is kind of why I think Congress also shifted towards the uniformity approach, where under certain state statutes, you may have large recovery, or under certain states, you might not have the ability to recover at all. [00:31:05] Speaker 05: Can I ask you about the in-presence requirement or not requirement? [00:31:10] Speaker 05: I think Judge Garcia's line of questioning is helping me understand why IED might not be the right bucket to be thinking about anyway. [00:31:26] Speaker 05: I'm not saying he thinks that, but it's helped me think through that question. [00:31:32] Speaker 05: Just in terms of the statute itself, what Congress wrote [00:31:36] Speaker 05: I mean, Congress said we want certain people to be able to recover when a foreign terrorist state has materially supported a terrorist attack. [00:31:51] Speaker 05: I don't understand how that could possibly include a presence requirement because the victim is never going to be there when the material support is provided. [00:32:03] Speaker 06: I think that the presence requirement arises in this case under effect specifically because again, and this is kind of a two step thing because the only harm alleged was salation. [00:32:14] Speaker 06: And the court has to look to the substantive theories for standing to bring a salatial claim, whether it's 46-869, wrongful death acts, or common loss of consortium, that we necessarily have to, without getting into the merits, see if there is even enough there to confer standing, specifically under 46, which is where the presence requirement comes from. [00:32:35] Speaker 06: So, the presence requirement is implicated by virtue of salacium damage being the only alleged harm and determining whether for salacium damages... But Congress said we want there to be salacium damages, right? [00:32:47] Speaker 06: Right. [00:32:47] Speaker 05: But how could Congress have said we want there to be salacium damages for material support and yet we are going to require a presence requirement for salacium damages when it's impossible [00:33:05] Speaker 05: to be present for the material support. [00:33:07] Speaker 05: No one will ever be present, no victim will ever be present for material support. [00:33:11] Speaker 05: It's not like the victim of a terrorist attack is going to be in the mountains between two states and somebody hands the rocket propelled grenade to the other person. [00:33:26] Speaker 05: Right? [00:33:26] Speaker 06: Right. [00:33:27] Speaker 06: I think, and I've repeated this point, but I think that because there are other types of damages that are available that don't require presence, it's not necessarily that Congress explicitly required presence for all of these claims to be brought. [00:33:42] Speaker 06: And under the salatium context, for example, Section 46-1, if it would have been a victim of a terrorist attack that, for example, survived, that would allow them to recover. [00:33:51] Speaker 06: That would be one where the presence requirement is not necessarily [00:33:55] Speaker 06: implicated because 46.1 doesn't have that but it just has to be directed at the person. [00:34:00] Speaker 06: I think that the distinction kind of comes in where here there's a situation where because the salatium damages again necessarily require us to look to these different theories since this court can't craft the body of common law that that presence requirement because I would start with the initial position that we do think 46 because this court is acknowledged in [00:34:18] Speaker 06: upholding Frankel is indistinguishable from a claim for salation. [00:34:22] Speaker 06: That's the appropriate benchmark. [00:34:24] Speaker 06: So under 46, if presence is required and if they can't show that, we think that's the most important analog. [00:34:30] Speaker 06: So I first wanted to dispute the premise that state wrongful death acts were the appropriate source of law because this court has never [00:34:37] Speaker 06: a reference statutory law explicitly in determining or in stating what sources in court addition. [00:34:42] Speaker 06: I'm curious to hear what reasons you have for that. [00:34:45] Speaker 04: One reason you gave was that state wrongful death statutes necessarily are worded differently and that that might be an obstacle. [00:34:53] Speaker 04: Is there another reason that we wouldn't look at wrongful death statutes which essentially are defining whether somebody in KEFE's position could recover? [00:35:02] Speaker 06: I do think the uniformity argument is the most powerful, because specifically when Congress was intending to move away from such a varied approach, I do think that going through the process of amending... I'd certainly appreciate that. [00:35:15] Speaker 04: That could be important in another case, right? [00:35:17] Speaker 04: But if, as you say, in 35 cases, even if the statutes are all worded differently, on the question we have in front of us, can a child [00:35:28] Speaker 04: I'll just say recover this type of damages and the answer is yes, then that seems to satisfy whatever concern we would have for uniformity. [00:35:38] Speaker 06: That is assuming, of course, that the court. [00:35:40] Speaker 06: Accepts that salatium and parental consortium are the same thing and we don't think that they necessarily are again because flat-out distinguishes the two and Kev mentioned that there were two separate I wouldn't describe those as mental anguish and loss of comfort in society is the two buckets Flat house stated that mental anguish was the preponderant element but most states don't allow again not just children but anyone to recover those types of damages and [00:36:03] Speaker 06: under the wrongful death acts. [00:36:05] Speaker 06: So although they allow loss of parental consortium, that's not including the mental anguish that necessarily is implicated in this case. [00:36:14] Speaker 04: Is there a reason why the loss of parental consortium aspect isn't enough? [00:36:18] Speaker 04: It seems sort of undisputed that that's a harm that KEFB suffered. [00:36:23] Speaker 06: I think that because the preponderant element is the one that KEFV cannot show, that that's the one that should hold the most weight with this court. [00:36:31] Speaker 06: I see that I'm over time. [00:36:32] Speaker 06: I would ask this court to affirm the judgment of the district court. [00:36:35] Speaker 06: Thank you. [00:36:37] Speaker 05: Thank you. [00:36:38] Speaker 05: Any more questions? [00:36:42] Speaker 02: And I believe I deserve some time for rebuttal, but I went over my time. [00:36:46] Speaker 05: So with your permission. [00:36:47] Speaker 05: We'll give you three minutes. [00:36:49] Speaker 02: Thank you, Your Honor. [00:36:50] Speaker 02: I'd like to start with what is encompassed by salacious damages. [00:36:54] Speaker 02: And this court said clearly and frankly that it is both the mental anguish and the loss of society. [00:37:00] Speaker 02: And so those are the two harms that make up the element. [00:37:04] Speaker 02: And I think Judge Garcia was correct that you have to look to both harms. [00:37:08] Speaker 02: There's no question that KEFV suffered the same loss of consortium harm as a very young infant, as any child, perhaps even a greater loss of consortium claim [00:37:18] Speaker 02: because she has been deprived of her father's love and guidance for her entire life. [00:37:24] Speaker 02: And there's no question that she also suffered mental anguish. [00:37:27] Speaker 02: Certainly the mental anguish may be different than an older child who understands at the moment of losing a parent what has happened, but she still has that same mental anguish here. [00:37:39] Speaker 02: And so the court should look to both of the wrongful death and the loss of consortium [00:37:46] Speaker 02: and the intentional infliction of emotional distress claims, and giving scope to Congress's broad private right of action for personal injury or death, including salacious damages. [00:37:58] Speaker 05: What year was the attack? [00:38:02] Speaker 02: The attack was in 2006, Your Honor. [00:38:04] Speaker 02: Can you speak? [00:38:05] Speaker 02: I'm sorry, August 6, 2011. [00:38:07] Speaker 05: In 2011 at that point, can you speak to whether KEFV was a member of the Vickers family? [00:38:17] Speaker 02: Yes, she was an unborn member of the Vickers family, Your Honor. [00:38:20] Speaker 05: I guess I'm asking for you to share why that's so. [00:38:23] Speaker 05: I'm not disagreeing with you. [00:38:25] Speaker 02: Because her mother was seven months pregnant. [00:38:28] Speaker 02: She was his third child that he was looking forward to welcoming into the family. [00:38:33] Speaker 02: I think that she is a member of his immediate family. [00:38:37] Speaker 02: He is her biological father. [00:38:43] Speaker 02: And unless the court has additional questions, the court should reverse the district court's decision that in utero plaintiffs lack standing under the FSIA's private right of action and remand for the district court to award damages. [00:38:55] Speaker 05: Thank you. [00:38:55] Speaker 05: Thank you, Your Honor.