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Case number 24-7135.

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Ramona Mantos Rodriguez et al.

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Versus Pan American Health Organization et al.

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Joaquin Molina et al.

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Mr. Bolchok for the et al.

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Mr. Dubby for the FLEs.

[00:00:16] Speaker 02:
Thank you, counsel, for your patience.

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We've had a number of complicated cases today.

[00:00:21] Speaker 05:
Understood, Your Honors.

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Thank you for your time.

[00:00:24] Speaker 05:
May it please the court, Daniel Vollchott, for the Pan-American Health Organization, especially appearing solely to contest jurisdiction and without waiving Ajo's privilege or immunities.

[00:00:32] Speaker 05:
May I please reserve two minutes for rebuttal?

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I'd like to start by summarizing my arguments on both appellate jurisdiction and the merits.

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On jurisdiction, we submit that this case is controlled by the court's decision in Neambl and that even if Neambl had never been decided, there would be collateral order jurisdiction under Supreme Court and this court's precedent.

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On the merits, we submit there are two overarching flaws with the challenge order.

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First, the discovery rests largely on new theories of jurisdiction, theories that were not addressed in the prior appeal and that cannot support any discovery because as a matter of law, they cannot establish jurisdiction.

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Second, as to their one live theory of jurisdiction, their one non-new theory, plaintiffs have not shown, as this court's precedent requires, that any discovery is necessary to resolve jurisdiction in light of the information that PAHO has provided.

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So with that summary, let me turn back to jurisdiction.

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Neambl held that an order for jurisdictional discovery against an IOIA immune entity qualifies for collateral order appeal.

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A plaintiff's principle argument about Neambl is that it applies only when there has been a prior appeal in a litigation.

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But no case has read Neamble that way in the decades since it was decided.

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There's nothing in Neamble itself, the opinion, the reasoning, to support such an artificial limitation.

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And such a limitation doesn't make sense because, as I said, Neamble was about collateral order jurisdiction.

[00:02:01] Speaker 01:
So there was a very interesting amicus brief filed by these professors

[00:02:07] Speaker 01:
William Dodge, Mark Feldman, and Edward Swain.

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And I wonder if you could address their argument about Neamble.

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They said that Neamble was about organizational immunity, and it held that a district court's grant of discovery against an absolutely immune defendant is sufficiently conclusive to qualify for collateral review.

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And the professors say in JAM versus International Finance Court in 2019, after NAMBLE, the Supreme Court held that the IOIA confers the same immunity on international organizations as FSIA does to foreign governments and that international organizations are not absolutely immune from suit.

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So NAMBLE was based on a case law we had before JAM,

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that said that their organizations are absolutely immune unless they waive their immunity.

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JAM comes along and says, no, no, that's not true.

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They're not absolutely immune.

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So the professors say, NAML is based on law that's been overturned and overruled.

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It doesn't apply.

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You can't rely on it.

[00:03:14] Speaker 05:
So the last part is their assertion, Judge Pan, is not correct.

[00:03:17] Speaker 05:
So absolute immunity was the term of art that was used prior to JAM to describe IOIA immunity.

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And as you indicated, even before JAM, it was something of a misnomer because IOIA immune defendants before JAM were not absolutely immune.

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There was one statutory exception, express waiver.

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And it's certainly not correct, as I think the academic and Miki are suggesting,

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that Jam was holding that a jurisdictional discovery order against an international organization qualifies for collateral order review only if the international organization is genuinely truly immune.

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And the reason I say absolutely immune, the reason I say we know that can't be right is because in Neambl itself, this court rejected an argument

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from the international organization there, the IMF, saying that it was categorically immune from any jurisdictional discovery, could not be ordered under any circumstances.

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This court rejected that precisely on the ground that, no, you are not absolutely immune.

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You can be sued if there is an express waiver.

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So what Neamble was saying was that an order for jurisdictional discovery against an international, an immune international organization

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that has, I should say, an international organization that has immunity unless a statutory exception applies.

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There was one exception at the time of Neambl waiver.

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There are more now under JAM, the FSIA's exceptions.

[00:04:34] Speaker 01:
I guess waiver doesn't seem to be the same type of provision as the other ones that are contemplated.

[00:04:40] Speaker 01:
But to put it in context, before Neambl, with respect to sovereigns under the FSIA, we also had

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some other cases, I guess, Beecham and Pierogi or something.

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Anyway, that seemed to suggest that for jurisdictional discovery orders,

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That is not something that is subject to interlocutory appeal, but there is a safeguard for a really abusive one, which is mandamus.

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And so it seemed that Neambl came along and said, we're talking about organizational sovereign immunity.

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And it went off in this direction about absolute immunity.

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But then JAM comes along and says, no, no, we're going to treat FSIA and IOIA the same.

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And now, why isn't it the case that

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Beecham and, I'm forgetting the name of it.

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Papadreou.

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Thank you.

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Papadreou applies because now it's all the same thing.

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And now mandamus is your remedy.

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Otherwise you don't get to appeal a jurisdictional discovery.

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a couple of responses in Beecham there was not a jurisdictional discovery order at issue it was an order telling the parties to come up with a discovery plan and this court said that does not impose anything more than a de minimis burden so you don't qualify for collateral order appeal the amble said the same thing in refusing to take interlocutory jurisdiction over the district court's denial of the IMS motion to dismiss because it was a motion to dismiss without prejudice based on a new complaint having been filed and so the district this court said

[00:06:11] Speaker 05:
And all that the IMF had to do there was refile a pre-existing motion to dismiss, not enough of a burden to qualify for a collateral order jurisdiction.

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But Beecham did not involve that kind of order.

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Now, Apindrayu did.

[00:06:24] Speaker 01:
Yeah, be that as it may, you're asking for a categorical rule that jurisdictional discovery is subject to this kind of interlocutory appeal.

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I mean, there's not, I guess there are a ton of these jurisdiction discovery orders, but the idea is if we were to find that.

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We'd have to distinguish Papageo and Beaton, but also we'd have to find that there's some categorical reason why we should allow jurisdictional discovery orders to be immediately appealable.

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And there are a lot of reasons why we probably don't want to do that, that have been addressed by the district court and other parties about grinding this to a halt, giving you too many bites of the apple to appeal, etc.

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A couple of responses, if I may.

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First of all, we know it has to be categorical.

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The Supreme Court has told us that if cases are subject to collateral appeal, you do that on a category basis, not on an individual basis.

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So we submit, Neambl holds that jurisdictional discovery orders against IOIA immune organizations are a category of orders that qualify for collateral order appeal.

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On Beecham, you don't have to distinguish Beecham.

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Beecham is factually different.

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And I submit, when you read Beecham, Judge Pan,

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I submit it's quite clear.

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The court was saying, gee, if there had been actual discovery, that might be quite a different case.

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But here we don't have that, so no collateral order.

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Now, in Papandreou, I think Papandreou is a great case for us.

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Papandreou makes absolutely clear that some type of appellate review, immediate appellate review, is necessary because of the seriousness

[00:07:57] Speaker 01:
But that was mandamus, though.

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It was mandamus because, well, a mandamus petition was filed.

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And the amici suggests that if collateral order jurisdiction had been available, this court could not have granted mandamus.

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The reason that's wrong is that no party in Papandreou, and I've looked at the six briefs from 1997, the petition, the response, the three-party briefs, and the US amicus brief, none of those six briefs even mentions

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collateral order jurisdiction.

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And I don't mean mentions it only as a possible alternative remedy that would foreclose mandamus.

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They don't mention it at all.

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They don't cite Cohen versus Beecham.

[00:08:30] Speaker 01:
It assumes that there is no other alternative.

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It assumes that collateral order review isn't available because we wouldn't get mandamus if there were any other.

[00:08:38] Speaker 05:
Wait, it's correct, but this court was not presented with the argument towards optional factor, though, that we would have self had to consider on our own.

[00:08:46] Speaker 05:
No, because mandamus jurisdiction is not jurisdictional in that sense, save so long as the mandamus petition would be issued in aid of jurisdiction.

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So when this court dismisses mandamus petitions for lack of jurisdiction,

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It's because someone has sought mandamus to a court over which this court does not have an appeal.

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This court has said we can issue mandamus to protect our current.

[00:09:09] Speaker 02:
We have said that elements of mandamus are jurisdictional.

[00:09:14] Speaker 05:
I don't think that is correct, Judge Millett.

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I could be wrong.

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But this court has dismissed mandamus petitions only.

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But in any event, Your Honor, even if it's jurisdictional, the argument was not presented.

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So whether or not this court.

[00:09:25] Speaker 02:
I'm trying to think of a jurisdictional argument, Your Honor.

[00:09:27] Speaker 02:
No doubt about it.

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This morning, no doubt illustrates.

[00:09:29] Speaker 05:
No doubt about it.

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And my point is no one raised it.

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to this court.

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But I do want to get back to, we're not just relying on Neambl.

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I said at the outset that even if Neambl had never been decided, there would be collateral order jurisdiction.

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Look at the process and industrial development case decided five years after.

[00:09:44] Speaker 01:
Can we go back to, like we all agree that if we're going to find jurisdiction, it would be a categorical thing under the collateral order doctrine.

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What are the big interests that make it so imperative that we relax the normal rule that you need to get to final judgment before we get here?

[00:10:02] Speaker 01:
That's presented by a jurisdictional discovery order.

[00:10:06] Speaker 05:
The interest that this court has recognized in foremost McKesson versus Iran in Papandreou itself.

[00:10:11] Speaker 01:
But that's about immunity itself.

[00:10:13] Speaker 01:
I'm talking about jurisdictional discovery about immunity.

[00:10:17] Speaker 05:
even in popping even in popping trade your honor this court said sovereign immunity is an immunity from trial and the attended attendant burdens of litigation the infliction of those burdens may compromise it just as clearly as would an ultimate determination of liability so that what this court has said in case

[00:10:36] Speaker 01:
It's the sovereign immunity decision, but I'm talking about a discovery order to determine if there is sovereign immunity.

[00:10:42] Speaker 05:
But Papandreou said what?

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Does the courts have jurisdiction to determine jurisdiction?

[00:10:46] Speaker 05:
No doubt about it.

[00:10:47] Speaker 01:
And so why?

[00:10:49] Speaker 01:
I don't understand.

[00:10:50] Speaker 01:
The interest... I want to separate sovereign immunity from...

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discovery to determine.

[00:10:56] Speaker 05:
So the language that I just read from Papandreou, Papandreou was obviously about a jurisdictional discovery order as we were discussing.

[00:11:02] Speaker 05:
So what this court has recognized in Papandreou and elsewhere, the PNID case that I just mentioned, I'm happy to quote as well.

[00:11:08] Speaker 05:
That's on page 23 of our brief, 38 of the part of the plaintiff's brief.

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This court has said denying, excuse me,

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ordering jurisdictional discovery is a form of denial of the immunity, and it is a permissible form to the extent that the discovery is actually necessary to determine jurisdiction.

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This court said in Papandreou, in Yambol, in other cases that jurisdiction, when there's a disputed fact about jurisdiction,

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Courts can order discovery that is necessary.

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That is the word you see in Papandre, Formos-McKesson, Neambl, to order the discovery that is necessary to resolve jurisdiction.

[00:11:47] Speaker 05:
Now, you submit they haven't done that.

[00:11:48] Speaker 05:
That's a merits question.

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I hope to get to that in a few minutes.

[00:11:51] Speaker 05:
But the interest that justifies relaxing the final judgment rule is protecting the immunity that Congress conferred and the president conferred in the IOIA.

[00:12:00] Speaker 05:
It's the same interest that you see in cases like P and ID, where this court granted collateral order

[00:12:06] Speaker 01:
Doesn't your argument assume that there actually is immunity, but that's the question that we're trying to determine?

[00:12:11] Speaker 05:
There is immunity until an exception has been established.

[00:12:16] Speaker 05:
And as you said, that's the question of jurisdiction.

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The court has jurisdiction to determine its own jurisdiction, so the federal courts can pursue the discovery that is necessary.

[00:12:26] Speaker 04:
You mentioned P&ID.

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Am I right?

[00:12:30] Speaker 04:
Part of what was going on there was that the effect of the order was requiring the defendant to litigate parts of the merits before the immunity question was resolved.

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And the holding in that case is, well, you can't do that.

[00:12:43] Speaker 04:
And if you have an order that does that, requires litigation of the merits before immunity is resolved, you get an immediate appeal.

[00:12:50] Speaker 04:
Correct.

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I think the lesson of that would be if this was an order that had jurisdictional and merits discovery, it would certainly follow

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sort of immediately that we would have appellate jurisdiction.

[00:13:01] Speaker 04:
But if you have an order like this one, that at least on its face is about jurisdictional discovery only, I understand you still have an argument based on the language in Papandreou that there is a sovereign interest in play, but you'd have to agree it's

[00:13:16] Speaker 04:
a lesser interest than requiring a potentially immune defendant to litigate the merits than to require it to respond to jurisdictional.

[00:13:24] Speaker 05:
So what the court said in P&ID was that imposing the, this is almost an exact quote, imposing the burdens of litigation on a foreign sovereign is precisely what triggers the second and third factors of the collateral order doctrine.

[00:13:37] Speaker 05:
That was merits there, Judge Garcia.

[00:13:39] Speaker 05:
But first of all, my submission is that the order here is significantly more burdensome, simply briefing the merits as opposed to all of the discovery that has been ordered.

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And we submit that the discovery here is, in fact, not limited to what is, that is our entire merits argument.

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The discovery is not limited to what would be appropriate to resolve jurisdiction.

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That's the very reason we say under Neambl, under P&ID, Papandreou, Formos-McKesson, et cetera,

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there is collateral order jurisdiction.

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Now, as I said, sorry, Judge Penn, as your question alluded to, there is this argument that you hear from plaintiffs and the academic amici that if there is appellate jurisdiction here, defendants may be able to drag out cases like this for many years with interlocutory appeal after interlocutory appeal.

[00:14:20] Speaker 05:
Couple of responses on that.

[00:14:21] Speaker 05:
Number one, as our reply brief points out, the Supreme Court rejected much the same argument in the Coinbase case, explaining that courts have robust tools with which to prevent litigants from dragging out litigation with frivolous interlocutory appeals.

[00:14:35] Speaker 05:
And one point, I think, is important that follows from that, Your Honors.

[00:14:40] Speaker 02:
Thank you.

[00:14:40] Speaker 02:
What tool that we can apply to foreign sovereign?

[00:14:42] Speaker 05:
So to prevent frivolous interlocutory appeals, the court talked about a district court certifying an appeal as frivolous.

[00:14:48] Speaker 05:
What I was about to say is that plaintiffs have not, in this case, did not ask the district court to do that.

[00:14:54] Speaker 02:
There's a categorical rule under Mohawk.

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So categorical rules, we've been meritorious and frivolous.

[00:15:02] Speaker 05:
I do not understand the Supreme Court's precedent, including cases like Coinbase, to say that even if there is jurisdiction, because the fact that there's collateral order jurisdiction, just like the fact that there's ordinary appellate jurisdiction after a final judgment, does not prevent a district court from certifying an appeal as frivolous, a court of appeals from dismissing an appeal as frivolous.

[00:15:19] Speaker 01:
I mean, this is- Have you ever heard of that?

[00:15:20] Speaker 01:
There are courts that certify appeals as frivolous?

[00:15:22] Speaker 05:
Yes.

[00:15:24] Speaker 05:
Yes.

[00:15:25] Speaker 05:
I mean, this is exactly what the Supreme Court said two years ago in the coin- District court, dude.

[00:15:29] Speaker 05:
I'm sorry?

[00:15:31] Speaker 05:
I'm sorry, I didn't hear your question.

[00:15:32] Speaker 02:
What do they do?

[00:15:32] Speaker 02:
They just sort of say, you filed this notice of appeal.

[00:15:36] Speaker 02:
I think it's frivolous.

[00:15:37] Speaker 05:
Yes, I am prepared.

[00:15:38] Speaker 05:
I am certifying this appeal as frivolous.

[00:15:41] Speaker 05:
Now, of course, it is then up to the Court of Appeals to find it to us.

[00:15:44] Speaker 05:
I'm sorry.

[00:15:44] Speaker 05:
I think the implication is certifying it to the Court of Appeals.

[00:15:47] Speaker 05:
I mean, I can't do better than cite this case to Coinbase from two years ago, which also involved interlocutory appeals, right?

[00:15:55] Speaker 02:
Certify it as frivolous, but guess what?

[00:15:59] Speaker 02:
Everyone has to go through the appeal process.

[00:16:01] Speaker 02:
There's delay, there's briefing, there's expense.

[00:16:06] Speaker 05:
Correct.

[00:16:06] Speaker 05:
Well, what the Supreme Court also said, Judge Malat, you asked me about the tools that the Coinbase Court identified.

[00:16:11] Speaker 05:
Certifying an appeal as frivolous is just one of them.

[00:16:14] Speaker 05:
The Supreme Court in Coinbase also talked about summary affirmance.

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This court can dispose of appeals without full merits briefing and oral argument.

[00:16:21] Speaker 02:
Sanctions as a possibility for litigants who are- Can we impose monetary sanctions on a foreign sovereign when the question of immunity is still open?

[00:16:35] Speaker 05:
So I was I was answering the court's question about what tools the court in this in this in this situation.

[00:16:41] Speaker 02:
I when we're dealing with foreign sovereigns.

[00:16:44] Speaker 02:
Yes, I believe before without even deciding whether they're subject to the jurisdiction of the court.

[00:16:52] Speaker 02:
Impose what damages sanctions.

[00:16:54] Speaker 05:
I don't think it would be, I don't think it would be a damages sanctions because there would be no showing of damages, but it would be for litigation conduct, this court- Litigation costs is a damage.

[00:17:03] Speaker 05:
Okay, sorry.

[00:17:04] Speaker 05:
Litigation costs, attorney's fees, that sort of thing.

[00:17:06] Speaker 02:
Yeah, I think that- You're conceding that that can be done to foreign

[00:17:10] Speaker 05:
I'm sorry, I may have misunderstood your question.

[00:17:13] Speaker 05:
I'm saying that is what the Supreme Court identified as one of many tools that... Did the Supreme Court say it was applicable to a foreign sovereign?

[00:17:20] Speaker 05:
No, because it was not dealing with a foreign sovereign immunity case.

[00:17:23] Speaker 02:
That's why I think you're getting this question from me and Judge Pan.

[00:17:26] Speaker 02:
So if you're willing to concede... I don't know how you can concede this.

[00:17:30] Speaker 05:
I can't concede that on behalf of any international... Certainly I couldn't do it beyond PAHO, but I don't think I can even do it on...

[00:17:34] Speaker 02:
And you can, yes, see for your client that if say we said an appeal was frivolous, pay, you know.

[00:17:43] Speaker 02:
court fees to this court and to the opposing counsel, write them a check for, or a Venmo for some large amount of attorney's fees, enforceable or not?

[00:17:54] Speaker 05:
I don't know that that would be enforceable, Judge Mollett.

[00:17:56] Speaker 02:
This doesn't sound like much of a protection against the Melissa Peaks.

[00:17:59] Speaker 05:
It's a very important protection, Judge Mollett.

[00:18:00] Speaker 02:
This court has a completely unenforceable and unimplicable way of sovereigns.

[00:18:04] Speaker 05:
I don't know if it's enforceable or not, Judge Mollett.

[00:18:06] Speaker 05:
You don't know that it is?

[00:18:07] Speaker 05:
I do know.

[00:18:08] Speaker 02:
Wait, time up.

[00:18:09] Speaker 02:
You just said you don't know if it is enforceable, correct?

[00:18:12] Speaker 02:
I agree with that.

[00:18:13] Speaker 02:
Then how can you tell me it's a relevant, helpful limitation on frivolous appeals when you can't even tell me if there's anything remotely enforceable we could do to rid ourselves of frivolous appeals?

[00:18:26] Speaker 05:
Judge Millett, I was answering your question about what tools the Supreme Court identified in the Coinbase case that

[00:18:30] Speaker 02:
Well, our question was what tools will could be applied in this context.

[00:18:34] Speaker 05:
OK, well, the district court certifying the appeal as frivolous, this court summarily dismissing the appeal, and plaintiffs did not ask this court or the district court to do either of those things.

[00:18:45] Speaker 01:
And because and in point basis that the things that you're you're referring to are just not realistic like we.

[00:18:52] Speaker 01:
We get lots of appeals that some might think are frivolous, but, you know, I have never seen a district court judge certify an appeal as frivolous.

[00:19:00] Speaker 01:
You're asking a.

[00:19:02] Speaker 01:
just show a pine like that.

[00:19:03] Speaker 01:
I guess somebody would fly a motion for a frivolous certification, which I've never seen.

[00:19:07] Speaker 01:
And then you're saying it would come up here and we could sanction somebody for filing a frivolous appeal.

[00:19:12] Speaker 01:
Like, I don't think we've ever done that.

[00:19:14] Speaker 01:
So I'm drawing all- We might say, we haven't done money damages, but sometimes we would say you can't file another one unless you get like some, like, you know, prolific pro se litigators will say you need to get permission before you file again or something like that.

[00:19:27] Speaker 01:
But monetary damages for filing frivolous appeals, like none of this sounds realistic to me.

[00:19:31] Speaker 05:
So I am drawing all of this directly from the majority of Supreme Court's decision.

[00:19:35] Speaker 02:
Which wasn't dealing with foreign sovereigns.

[00:19:36] Speaker 02:
So if we could just maybe reason from first principles for us in a situation involving foreign sovereigns, what is a limitation other than us having to go through summary affirmance, which for comedy reasons is not something we commonly give in foreign sovereign cases.

[00:19:55] Speaker 05:
So there are.

[00:19:55] Speaker 02:
If you want us now to treat them the same as repeat litigants,

[00:20:00] Speaker 05:
Let me know.

[00:20:16] Speaker 02:
class or categorical decisions at all.

[00:20:20] Speaker 02:
It decided the case in the context in which there had been no ruling yet at all on the merits of a motion to dismiss on immunity grounds.

[00:20:28] Speaker 05:
And that is exactly what we have as to most of the discovery here, because most of the discovery here is based on new theories of jurisdiction, as I articulated at the outset, as to all of those theories, which I'm happy to discuss with the court's indulgence, all of the discovery that rests on those theories.

[00:20:43] Speaker 02:
I just want to make sure

[00:20:44] Speaker 02:
Judge Pan wants to ask any more about if there is anything remotely realistic that could be done to prevent a foreign nation from appealing every discovery order.

[00:21:01] Speaker 05:
So we certainly know that in the decades since Neambl was decided and in the many more years that there have been cases under the FSIA, there has been no flood of jurisdictional, of abuse of appeals like this.

[00:21:14] Speaker 05:
In fact, what the academic amici point to two examples of what they say are litigations that have gone on too long against foreign sovereigns because of

[00:21:25] Speaker 05:
I think that's a good point.

[00:21:32] Speaker 05:
I think that's a good point.

[00:21:42] Speaker 05:
that this court and or the Supreme Court was able to correct those misreadings and avoid foreign sovereigns being subjected to excessive litigation burdens which goes directly to my second point responding to this argument about interminable interlocutory appeals.

[00:21:55] Speaker 05:
The second point is plaintiffs and their amici.

[00:21:58] Speaker 05:
are ignoring the other side of the balance.

[00:22:00] Speaker 05:
As I said, whenever a class of orders is recognized as satisfying collateral order jurisdiction, there's delay, there's some risk of this abuse, but it is accepted in light of the orders, the values on the other side.

[00:22:14] Speaker 05:
When foreign sovereigns and international organizations

[00:22:17] Speaker 05:
are subjected to excessive litigation burdens, which is what will happen more and more if interlocutory appeal is denied in circumstances like this, that is harm to the public.

[00:22:28] Speaker 05:
Because all the resources that the international organizations have to invest is not available to serve their public serving functions.

[00:22:35] Speaker 02:
You're talking here about this case.

[00:22:37] Speaker 02:
I want to clarify one thing.

[00:22:38] Speaker 02:
When you talk about the one live theory of jurisdiction for which they are allowed to get discovery, you're talking about

[00:22:45] Speaker 02:
the claim that was recognized by the court in the prior Rodriguez appeal about transfers of money for correct allegedly moving money for a fee between if a district court says.

[00:22:57] Speaker 02:
I think here is this is an additional relevant question to jurisdiction.

[00:23:05] Speaker 02:
Is that sufficient?

[00:23:06] Speaker 02:
Is it then permissible?

[00:23:08] Speaker 02:
Or are you saying that the only discovery that can be allowed is whatever theory is first one single theory that is recognized in the appeal?

[00:23:15] Speaker 05:
Well, our position is the latter, that you can get jurisdictional discovery only on a theory that has been held to be facially viable, assuming a facial motion.

[00:23:24] Speaker 02:
By whom, district court or court of appeals?

[00:23:26] Speaker 05:
Well, the district court, if a facial motion is filed, an appeal, sorry, the appellate court, if an appeal is filed, obviously if no appeal is filed, none of this comes into play, but I do want to underscore two points.

[00:23:38] Speaker 02:
Well, before you underscore points, I've got to get my confusion straightened out here.

[00:23:42] Speaker 02:
So in this case, we have the facial appeal, and we recognize a theory.

[00:23:46] Speaker 02:
You want to call it the one single formulation of it.

[00:23:51] Speaker 02:
There are actually multiple formulations of it in that opinion.

[00:23:54] Speaker 02:
And as discussed at oral argument, I think it was you or the council for Pan American had a much broader reading of it at oral argument.

[00:24:05] Speaker 02:
But in this case,

[00:24:07] Speaker 02:
went back to the district court and you filed a second motion to dismiss.

[00:24:15] Speaker 02:
Yes.

[00:24:16] Speaker 02:
You called it a factual motion to dismiss.

[00:24:19] Speaker 02:
So my first question is, if we're concerned about abuses, why didn't you file both at the same time?

[00:24:27] Speaker 05:
The factual motion to dismiss was required, imposed substantially more burdens on PAHO because it required PAHO to... If there's anything you tell us in your brief, you voluntarily turned over these documents.

[00:24:39] Speaker 02:
And so you could have voluntarily, it didn't take any more work to voluntarily turn those over after our ruling rather than it could have before.

[00:24:48] Speaker 02:
And then you could have done one appeal to this court.

[00:24:51] Speaker 02:
But if you, what happened procedurally here is what has our radar up on, you know, seriatim, 12V1, appeal after appeal after appeal.

[00:25:02] Speaker 02:
You could have done that voluntary disclosure beforehand and then filed in a single motion your facial and factual motions to the miss, couldn't you?

[00:25:12] Speaker 05:
Yes, but we chose not to.

[00:25:14] Speaker 05:
We did because that would have required us to incur the burden.

[00:25:17] Speaker 05:
And if this court had agreed with us on our facial motion to dismiss, then this litigation

[00:25:23] Speaker 02:
Now they have to incur the burden and we have to incur the burden of appeal number two, raising 12B1 motion to dismiss.

[00:25:30] Speaker 05:
So plaintiffs have not, to my understanding, raised any objection to the possibility of a facial motion to dismiss, followed by a factual motion to dismiss.

[00:25:38] Speaker 02:
Are you aware of that ever happening?

[00:25:39] Speaker 02:
I can't find another case where two 12B1 motions were split like this.

[00:25:44] Speaker 05:
In the Dissepal case that is cited in our reply brief and in plaintiff's brief, so DE space CS.

[00:25:50] Speaker 02:
I don't know what that case is.

[00:25:51] Speaker 05:
It was a case involving, the allegations were expropriation of artwork and breach of contract involving Hungary and World War II, expropriation of artwork.

[00:26:01] Speaker 05:
Hungary was sued, case first came up on a facial motion to dismiss, went back down, then a factual motion to dismiss after discovery was filed.

[00:26:08] Speaker 02:
After discovery, so that was that sort of summary judgment after discovery.

[00:26:12] Speaker 05:
It was, sorry, I apologize.

[00:26:14] Speaker 05:
It went up on a facial motion to dismiss.

[00:26:15] Speaker 05:
It went back down for jurisdictional discovery.

[00:26:18] Speaker 05:
And then at the conclusion, so not merits discovery and not summary judgment.

[00:26:21] Speaker 02:
Conclusion of jurisdictional discovery.

[00:26:23] Speaker 05:
Correct.

[00:26:24] Speaker 05:
And so my assumption- It is before.

[00:26:25] Speaker 02:
Your factual motion to dismiss is before any discovery.

[00:26:31] Speaker 02:
And your whole rationale is that they don't get any discovery because look at all these documents we gave you.

[00:26:36] Speaker 02:
So I'm going to ask again, has there been a case where it comes up on a facial one and we say, here is under 12B1 standards, illegally viable theory for having jurisdiction in the case for abrogating the sovereign immunity under 12B1 standards, thing could change.

[00:26:56] Speaker 02:
Go back, have jurisdictional discovery.

[00:27:00] Speaker 02:
And then you jump in and say, hang on, hang on.

[00:27:03] Speaker 02:
No jurisdictional discovery.

[00:27:04] Speaker 02:
We just turned over a whole bunch of documents and on the basis of those documents that we have selected ourselves, we're going to file another 12B1.

[00:27:11] Speaker 02:
That's what I'm asking you.

[00:27:12] Speaker 05:
So all of the parties and the district court have agreed there does not appear to be a case exactly like this one.

[00:27:17] Speaker 05:
The closest is probably Neambel because, as I said earlier, that's not like this at all.

[00:27:21] Speaker 05:
It's very much like this case, Judge Millett.

[00:27:22] Speaker 02:
It's very much unlike it because there you did not have already one appeal, one legal determination both by the district court and this court as to a viable theory for jurisdiction.

[00:27:32] Speaker 05:
And if they were only seeking discovery on that one by viable theory, then I would understand why.

[00:27:37] Speaker 02:
Okay.

[00:27:38] Speaker 02:
So why given that you have filed a factual motion to dismiss.

[00:27:47] Speaker 02:
And given our decision in Angola.

[00:27:49] Speaker 02:
Phoenix consulting versus Angola, which says when a factual motion dismisses filed, the district or cannot rely on just the allegations of the complaint.

[00:27:59] Speaker 02:
There has to be discovery allowed for the for the plaintiffs to respond to that factual motion to dismiss.

[00:28:11] Speaker 02:
that and then the court will decide the factual motion to dismiss after jurisdictional discovery on the factual motion to dismiss.

[00:28:18] Speaker 05:
But what this court has said in case after case, I do believe it is in Phoenix Consulting, but it certainly is in cases both before and after it, like Foremost McKesson, Papandreou, and Neambul.

[00:28:27] Speaker 02:
I want you to answer my question about the language from Angola.

[00:28:31] Speaker 05:
The holding in Angola, in Phoenix Consulting, was that when a factual motion to dismiss is filed... I'm on page 40.

[00:28:41] Speaker 02:
It must give the plaintiff ample opportunity to secure and present evidence relevant to the existence of jurisdiction on the factual motion to dismiss grounds.

[00:28:50] Speaker 05:
Yes, and this court has made clear that what, first of all, it's made clear in Papandreou that, in fact, relevance is not the standard.

[00:28:56] Speaker 05:
That's not enough in the IOIA context.

[00:28:58] Speaker 05:
And it has made clear, as you would expect, that what plaintiffs are entitled to, what a plaintiff in this circumstance is entitled to, is the discovery that is necessary to resolve the jurisdictional dispute.

[00:29:10] Speaker 05:
And Judge Millett, to your question, we say they don't get any discovery.

[00:29:12] Speaker 05:
The reason we say they don't get any discovery, even on what we call their one life theory, the moving money for a fee theory, is because they have not, we submit,

[00:29:20] Speaker 05:
satisfied Neambel's standard, which it drew from the Second Circuit.

[00:29:24] Speaker 05:
Fifth Circuit has said exactly the same thing, that you get discovery that is necessary to verify specific allegations of facts.

[00:29:31] Speaker 02:
Or found it necessary here.

[00:29:32] Speaker 02:
What I'm asking is, you have argued here that the only thing they can get jurisdictional discovery on is the one theory that came up to this court.

[00:29:43] Speaker 02:
Correct.

[00:29:44] Speaker 02:
when in fact we have said that when you file a jurisdictional motion to dismiss on factual grounds, a factual motion, the court has to give them a jurisdictional discovery that is responsive to that motion to dismiss.

[00:30:02] Speaker 02:
And nowhere in your briefs have you argued

[00:30:07] Speaker 02:
that the jurisdictional discovery here exceeds the bounds of issues raised in your factual motion to dismiss.

[00:30:13] Speaker 02:
You argue only that it exceeds the payment for a fee as the one little abbreviated line from a prior appeal you want to use.

[00:30:21] Speaker 02:
That's all you've argued.

[00:30:22] Speaker 02:
And you keep talking about the one live theory, the one live theory.

[00:30:26] Speaker 02:
But in fact, your jurisdictional, your factual motion to dismiss raises other issues.

[00:30:33] Speaker 02:
And as long as the district courts

[00:30:36] Speaker 02:
jurisdictional discovery doesn't go beyond what is necessary to respond to your jurisdictional motion to dismiss, which you haven't argued it is.

[00:30:50] Speaker 05:
Our factual motion to dismiss absolutely did not go beyond the one life theory.

[00:30:56] Speaker 02:
something the district court here said and explained why the discovery it allowed, including the stuff about the operations of administration of the program, was tied to your factual motion dismissed.

[00:31:11] Speaker 02:
You have not argued about that.

[00:31:12] Speaker 02:
All you've argued about is the one live theory from the prior opinion.

[00:31:16] Speaker 02:
So you have forfeited those arguments.

[00:31:19] Speaker 02:
I'm sorry.

[00:31:19] Speaker 02:
Since you're asking us to, I know you're going to disagree, so I'm going to finish it.

[00:31:22] Speaker 02:
You're asking us to say this discovery

[00:31:25] Speaker 02:
I don't know if you even mentioned your factual motion dismissing your opening brief, but your discovery, your argument here is that discovery has to be tied to the, what you call the one live theory recognized in our appeal and that all the discovery here doesn't fit that one life theory about the fee for transfer of money.

[00:31:43] Speaker 02:
But the district court explained why it was necessary to respond to your factual motion to dismiss on jurisdictional grounds.

[00:31:53] Speaker 05:
don't think the district court did explain that judgment.

[00:31:56] Speaker 02:
Where have you argued in your brief in your opening briefing that the district court's explanation for why the connection between the discovery that allowed and your factual motion to dismiss doesn't exist as opposed to what we said in our opinion last time because

[00:32:15] Speaker 05:
For example, pages 37 to 39, we walked through significant portions of the jurisdictional discovery requests and explain why granting jurisdictional discovery on each of those wasn't impermissible.

[00:32:27] Speaker 05:
Some of those.

[00:32:28] Speaker 02:
You say impermissible because it wasn't the one live theory.

[00:32:31] Speaker 05:
That is some of it, Your Honor.

[00:32:33] Speaker 05:
That is not the entirety of it.

[00:32:34] Speaker 05:
We get to discussing the one life theory.

[00:32:38] Speaker 02:
Where do you discuss your factual motion to discuss here in the content of it, the information you provided, the arguments you made?

[00:32:43] Speaker 02:
Where is that discussed in here?

[00:32:44] Speaker 05:
Well, we discussed it certainly in the procedural history section where we are discussing how we got to this point.

[00:32:49] Speaker 05:
But we discussed the errors to the extent the discovery rests on the one live theory.

[00:32:54] Speaker 05:
We discussed those errors starting at page 47 of our brief, then going all the way to page 57.

[00:33:00] Speaker 05:
Now, I don't want to skip over the fact that we challenge a lot of the discovery as going beyond the theory, principally resting on the theory that

[00:33:08] Speaker 05:
The administration of the Mace Medicos program was carried on in DC.

[00:33:12] Speaker 05:
The district court said that on JA 1241, and that was the entirety of the court's explanation for five of the 13 jurisdictional discovery requests.

[00:33:21] Speaker 05:
Now, this court held, in the Yonquist case, J-U-N-G-Q-U-I-S-T, this court held, quote, administering a national public health program is a noncommercial activity, end quote.

[00:33:33] Speaker 05:
That is a quote from plaintiff's brief.

[00:33:35] Speaker 05:
to this court in the prior appeal at the top of page 32.

[00:33:38] Speaker 05:
They said, and the Youngquist did in fact hold, administering a public health program is a non-commercial activity.

[00:33:44] Speaker 05:
The United States said the same thing to this court in the prior appeal on page 25 of its brief.

[00:33:50] Speaker 05:
The Second Circuit held the same in the Anglo-Iberia case that we cite.

[00:33:53] Speaker 05:
So even if

[00:33:54] Speaker 05:
PAHO administered Mace Medicos from D.C.

[00:33:57] Speaker 05:
That as a matter of law under Youngquist, the other authorities I just cited, would not be a commercial activity, could not establish jurisdiction, and the district court agreed on JA 1239 that if a theory can't establish jurisdiction, it necessarily can't justify any jurisdictional discovery.

[00:34:13] Speaker 05:
Now, we made this point about administration of a public health program at some length.

[00:34:17] Speaker 05:
in our opening brief, as our reply points out, plaintiffs do not answer it at all.

[00:34:21] Speaker 05:
They don't cite Youngquist, they don't cite Anglo-Iberia, they don't cite the United States' amicus brief.

[00:34:26] Speaker 05:
So with this point having been conceded and with this being the

[00:34:31] Speaker 02:
You just admitted that your factual motion to assist submissive raises the issue of how the program was administered.

[00:34:37] Speaker 05:
No, it does not.

[00:34:38] Speaker 05:
They are seeking discovery on those things, Judge Millett.

[00:34:41] Speaker 02:
You said it was all administered from?

[00:34:43] Speaker 05:
I'm sorry?

[00:34:44] Speaker 02:
You just said that it was all administered.

[00:34:47] Speaker 02:
You introduced documents to show.

[00:34:49] Speaker 02:
what you were doing under this program and what you were not doing and where you were doing it.

[00:34:55] Speaker 05:
We introduced documents to answer the one theory that this court held facially stated a claim assuming the truth of plaintiffs factual allegations in the complaint.

[00:35:05] Speaker 05:
moving money for a fee between Cuba and Brazil.

[00:35:08] Speaker 05:
So we provided contracts between Brazil and Cuba, excuse me, Brazil and Pajo, Pajo and Cuba, including agreements showing the exact amount that Pajo was paid by Brazil in connection with Medicos.

[00:35:20] Speaker 05:
We submitted, we provided bank statements.

[00:35:22] Speaker 01:
Here's what I see, counsel.

[00:35:24] Speaker 01:
I mean, you have a perspective and a position on what's relevant and what's not based on your reading of the prior opinion by the circuit court.

[00:35:33] Speaker 01:
and you litigated in the district court accordingly.

[00:35:36] Speaker 01:
District court disagreed with you.

[00:35:39] Speaker 01:
And just one example of this that kind of struck me was that you take the position that, oh, we've given you all this banking information about where all the money we got from this program and went to our...

[00:35:54] Speaker 01:
Banco de Brazil account, and then it went out to these different areas, to Cuba, et cetera.

[00:36:01] Speaker 01:
And then there was this 5% fee.

[00:36:04] Speaker 01:
You don't talk about where the 5% fee went because you say, that's not moving money for a fee.

[00:36:08] Speaker 01:
That went to our administrative expenses.

[00:36:11] Speaker 01:
That's the kind of thing that we do to pay for our administrative expenses.

[00:36:16] Speaker 01:
But the point is,

[00:36:18] Speaker 01:
Neither the opposing side nor the district court has to accept your representations about that 5%.

[00:36:24] Speaker 01:
They can say, that's evidence of moving money for a fee.

[00:36:27] Speaker 01:
That's the allegation.

[00:36:29] Speaker 01:
So we want discovery about where did that 5% go?

[00:36:32] Speaker 01:
And part of that might include, logically, all the money that came in from ice medicos.

[00:36:38] Speaker 01:
Where did that all go?

[00:36:40] Speaker 01:
Because that could be part of nailing down where that 5% go to, because they might not agree with you that that 5% is not moving money for a fee, you see.

[00:36:49] Speaker 01:
And the problem is...

[00:36:52] Speaker 01:
Every time they disagree with you, you're saying you get to come up here and appeal.

[00:36:55] Speaker 01:
And that seems untenable to me.

[00:37:00] Speaker 01:
Anything that's related to your immunity, you think you can come up here and appeal.

[00:37:04] Speaker 01:
This is jurisdictional discovery.

[00:37:06] Speaker 01:
There's a lot more that has to happen.

[00:37:07] Speaker 01:
What if we disagree with you, send it back, and you have another dispute about it?

[00:37:12] Speaker 01:
Are you going to come up here again?

[00:37:13] Speaker 05:
So Judge Pan, several responses.

[00:37:15] Speaker 05:
We did provide information to plaintiffs about where the retained funds, the 5%, was moved after it was recognized by PAHO.

[00:37:24] Speaker 05:
So Brazil deposited into one account in the country of Brazil.

[00:37:30] Speaker 05:
Our declaration explains that once PAHO recognized 5% associated with a particular direct cost,

[00:37:36] Speaker 05:
deemed itself that money to have been accrued.

[00:37:39] Speaker 05:
Our declaration explains it's in the record that it was moved to another account in Brazil.

[00:37:43] Speaker 05:
So factually, we have addressed it now to the point never come to America.

[00:37:47] Speaker 05:
You don't want to say they have no we believe that under Neambl Neambl says you

[00:37:52] Speaker 01:
I understand that's what you believe, but that's my whole point is you could be wrong.

[00:37:57] Speaker 01:
The district court could disagree with you.

[00:37:58] Speaker 01:
The other side might want to test your theory.

[00:38:00] Speaker 01:
The point is you could be wrong and you shouldn't be able to run up here and complain to us every time somebody disagrees with you on a jurisdictional discovery issue.

[00:38:09] Speaker 05:
the amble squarely holds that jurisdictional discovery against an IOIA immune entity is available only if the plaintiff can make a specific well-founded allegation that jurisdiction.

[00:38:20] Speaker 01:
I understand that.

[00:38:21] Speaker 01:
And there's a dispute between you and the other side about what that specific well-founded allegation is.

[00:38:27] Speaker 01:
And you think that you should be able to appeal every time that is disagreed with by the district court.

[00:38:34] Speaker 01:
And I think that's untenable.

[00:38:36] Speaker 01:
Because even just on the facts of this case,

[00:38:38] Speaker 01:
It seems to me that what the district court did is completely normal discovery to allow the other side to test the allegations that you've made, which they're entitled to do.

[00:38:49] Speaker 01:
But that's been cut short because you decided to take an initial auditory appeal.

[00:38:52] Speaker 01:
And I have no confidence that if we send this back, because we also disagree with you, you might find another thing that you want to appeal to us.

[00:38:59] Speaker 05:
They are not entitled to that information under Neambel, McKesson, Papadreou.

[00:39:04] Speaker 01:
According to you, that's your position.

[00:39:06] Speaker 01:
They get to test it.

[00:39:07] Speaker 01:
They get to get discovery and make their case as to why you are wrong.

[00:39:11] Speaker 05:
My position is that under binding precedent under this court's cases that I just recited, they do not get that unless they can make a specific well-founded allegation.

[00:39:21] Speaker 01:
And maybe the district court thought they did.

[00:39:22] Speaker 02:
And maybe they did.

[00:39:24] Speaker 02:
Were those responding to factual motions to dismiss that discovery in those cases you've cited?

[00:39:31] Speaker 05:
Yes, I am not sure of the answer to that question, Judge Millett, but they certainly all involved jurisdictional discovery.

[00:39:39] Speaker 02:
That's a very different thing.

[00:39:40] Speaker 02:
So what I'm saying, we have a case that says when a factual motion to dismiss is filed, the district court must allow responsive jurisdictional discovery for them to test, counter, to be in a position to counter or not.

[00:39:59] Speaker 02:
They could send up the white flag.

[00:40:01] Speaker 02:
those theories propounded there.

[00:40:05] Speaker 02:
Even for sovereigns, we have an adversarial system of justice.

[00:40:11] Speaker 02:
We don't let one party come in and go, here are the records I choose to give you, rule on this district court.

[00:40:16] Speaker 05:
That is correct.

[00:40:18] Speaker 02:
Do you agree that the district court under Phoenix Consulting had to allow responsive discovery

[00:40:28] Speaker 02:
necessary for the court to be able to decide your factual motion dismissed.

[00:40:31] Speaker 02:
Do you agree with that?

[00:40:32] Speaker 05:
Yes, because you said necessary to resolve the factual... That's fine.

[00:40:35] Speaker 02:
I'll use the word necessary all day if that's what you want.

[00:40:37] Speaker 05:
Yes, and I do agree.

[00:40:38] Speaker 02:
Okay.

[00:40:39] Speaker 02:
All right.

[00:40:40] Speaker 02:
And where did you argue that

[00:40:44] Speaker 02:
Given the things that you raised, where you talk about the 5% fee and what it was for, you talk about administration, what occurred in the US, what didn't occur in the US, where did you argue that that was invalid?

[00:40:57] Speaker 02:
Because when the district court said, I'm allowing that to respond to the factual motion to dismiss, and all I read in your brief was that's not consistent with their affirmative argument.

[00:41:09] Speaker 02:
their affirmative argument for jurisdiction on the prior appeal inside of those pages.

[00:41:14] Speaker 02:
But I think those are all talking as I read them in terms of your in terms of your rationale for near the one live theory.

[00:41:23] Speaker 02:
47 live theories.

[00:41:24] Speaker 02:
That's the one line.

[00:41:25] Speaker 02:
Sorry.

[00:41:26] Speaker 02:
There's two live theories.

[00:41:27] Speaker 02:
There's a live theory that they affirmatively raise.

[00:41:30] Speaker 02:
And now there are live jurisdictional issues that you have raised that are factual issues, not legal issues.

[00:41:36] Speaker 05:
We have not raised any new jurisdictional issues in our factual motion to dismiss.

[00:41:41] Speaker 05:
As I said, we provided the information responding to the one theory that the district court and then this court held.

[00:41:46] Speaker 02:
Well, you added discussions about where it was administered.

[00:41:49] Speaker 02:
You added discussions about this fee and what it was used for.

[00:41:53] Speaker 02:
Right.

[00:41:54] Speaker 02:
You want to say it's program support costs?

[00:41:57] Speaker 05:
Right.

[00:41:57] Speaker 05:
They want to say it wasn't used at that.

[00:42:00] Speaker 05:
That is the dispute.

[00:42:01] Speaker 02:
Do they get to say that you're wrong?

[00:42:06] Speaker 02:
That was not a program support cost.

[00:42:10] Speaker 05:
What they get to say.

[00:42:11] Speaker 02:
They get to make that argument.

[00:42:12] Speaker 05:
Sure, that's a legal argument.

[00:42:13] Speaker 02:
They have discovery to allow them to make that argument.

[00:42:16] Speaker 02:
Only if they can make a... Do they get to have discovery to counter the argument that you have relied on to say why there is no jurisdiction?

[00:42:26] Speaker 05:
No, under Neambl, unless they make a specific... I'm just telling you.

[00:42:30] Speaker 02:
What more do they have to say?

[00:42:31] Speaker 02:
Neambl did not involve a case where the defendant

[00:42:38] Speaker 02:
had come forward and said, here is our factual questions that provide a basis, your resolution of these factual questions.

[00:42:49] Speaker 05:
And neither did we.

[00:42:50] Speaker 05:
Excuse me.

[00:42:51] Speaker 02:
You filed a factual motion to dismiss.

[00:42:54] Speaker 02:
Look at these facts.

[00:42:55] Speaker 02:
Correct.

[00:42:56] Speaker 02:
Look at these records.

[00:42:57] Speaker 02:
Please, just let me get it.

[00:42:58] Speaker 02:
Sorry.

[00:42:58] Speaker 02:
Sorry, Judge.

[00:42:58] Speaker 02:
I don't need affirmation.

[00:42:59] Speaker 02:
No, I appreciate you.

[00:43:01] Speaker 02:
All right.

[00:43:02] Speaker 02:
You filed a factual, a non-legal motion to dismiss.

[00:43:04] Speaker 02:
A factual one says, here are facts now.

[00:43:07] Speaker 02:
We had our trip up on law, here are facts.

[00:43:11] Speaker 02:
And under these facts, under these facts, you must now dismiss this case because it shows

[00:43:21] Speaker 02:
that what we did does not count as commercial activity.

[00:43:25] Speaker 02:
We had a 5% fee, that's a program support cost.

[00:43:29] Speaker 02:
We didn't administer anything here in the US that was beyond ordinary sovereign entity types of administration.

[00:43:37] Speaker 02:
They, district court has to give them discovery under our decision, cannot rule on your motion until it gives them discovery.

[00:43:47] Speaker 02:
They say it is necessary for us to contest.

[00:43:51] Speaker 02:
And the district court said it's necessary for them to contest in a way that would allow me to make a reasonable ruling.

[00:43:57] Speaker 02:
They need to get information about that money trail.

[00:44:02] Speaker 02:
They need to get information about what was administered where.

[00:44:07] Speaker 05:
My fundamental submission is that we put forth in our factual motion to dismiss evidence showing that the factual allegations on which this court and the district court relied in the first appeal, the district court prior to the first appeal, to conclude that they had a legally sufficient claim, that those critical factual allegations were false.

[00:44:27] Speaker 02:
What were they supposed to have?

[00:44:28] Speaker 02:
OK, and they want to say, because you provided documents.

[00:44:32] Speaker 02:
But imagine you have a different, far less scrupulous

[00:44:36] Speaker 02:
foreign country that comes in forwards and comes out with a company, country X, this word and says, here's the contract.

[00:44:45] Speaker 02:
It doesn't say anything.

[00:44:48] Speaker 02:
Here are the documents about the bank accounts.

[00:44:50] Speaker 02:
They show where the money went.

[00:44:52] Speaker 02:
None of it can't touch the United States.

[00:44:55] Speaker 02:
Here are the papers to show what we were doing and where, and they're all fabricated.

[00:44:59] Speaker 02:
Does the court get to give discovery?

[00:45:04] Speaker 05:
Unless if they can make a well-founded allegation, they have not.

[00:45:08] Speaker 05:
They don't even get to test.

[00:45:09] Speaker 02:
They don't even get to test.

[00:45:10] Speaker 05:
Plaintiffs have not come forward with any specific facts that they say are crucial to the immunity determination, let alone explain why any of the discovery that they sought or that was ordered is crucial to verify those facts.

[00:45:25] Speaker 05:
Our submission is that is exactly what Neambl and other cases require.

[00:45:28] Speaker 01:
Your argument is premised on everybody accepting that you're correct on your legal theory about what

[00:45:33] Speaker 01:
this court previously held and what facts are relevant to that.

[00:45:38] Speaker 01:
And this is an adversary system.

[00:45:41] Speaker 01:
The other side gets to test your theory.

[00:45:43] Speaker 01:
The other side gets to oppose your theory.

[00:45:46] Speaker 01:
I just don't understand why you think that you get to win because you believe in your theory so much.

[00:45:55] Speaker 05:
I'm sorry.

[00:45:55] Speaker 05:
I want to make sure I understand Judge Pan, because when we're talking about the theory, it's plaintiff's theory.

[00:45:59] Speaker 01:
Let's put it this way.

[00:46:04] Speaker 01:
The decision in Rodriguez 1 formulated the theory in a couple of different ways.

[00:46:11] Speaker 01:
And you keep calling it the one theory.

[00:46:13] Speaker 01:
And I understand your understanding of the one theory to be that it has to go through the Washington DC bank account.

[00:46:20] Speaker 01:
But our opinion also said, we believe that the physicians have sufficiently alleged that Pahu's conduct of moving money for a fee constituted commercial activity carried out in the United States.

[00:46:30] Speaker 01:
So there are some general formulations of the same theory in the same opinion.

[00:46:34] Speaker 01:
And I think it's up for perhaps debate or discussion or a ruling by the district court about how much of this is relevant, how much of it should be subject to discovery, et cetera.

[00:46:46] Speaker 01:
But I think that procedurally,

[00:46:49] Speaker 01:
And as Judge Millett is trying to home in on, you have put facts before the district court that you think are relevant to your theory, and you think that that should be the end of the story.

[00:47:04] Speaker 01:
But the district court has a duty and obligation to allow the other side to test your theory and to test your facts.

[00:47:11] Speaker 01:
And they might have a theory that

[00:47:14] Speaker 01:
is that comports with other statements in our prior opinion that there was commercial activity carried out in the United States, even if it didn't go through a specific Washington DC bank account.

[00:47:24] Speaker 01:
One of the questions they will ask is, did this go through a different bank account, not in Washington DC?

[00:47:29] Speaker 01:
These all seem to be very relevant to the opinion that we issued and the issues before the court and the facts that you put before the district court.

[00:47:37] Speaker 01:
So all of this seems to be relevant and it all seems to be very sort of routine stuff that a district court does to establish whether there's jurisdiction or not.

[00:47:47] Speaker 01:
It conducts some discovery, it makes some rulings, and it's all in the context of a case that's already been up here and we've already said, yes, there's a viable jurisdictional discovery.

[00:47:59] Speaker 01:
ground here in a viable theory of jurisdiction.

[00:48:03] Speaker 01:
And I just am puzzled by you coming in here and insisting that you must be right and everybody has to accept just what evidence you think and your view of what our prior ruling said and therefore you win.

[00:48:16] Speaker 01:
That is not consistent with the way an appeal works or litigation for the district court works.

[00:48:22] Speaker 05:
But two responses, if I may.

[00:48:23] Speaker 05:
It is unquestionably a foundational component of our overall submission that jurisdictional discovery involving an FSIA immune or IOIA immune entity is fundamentally different than ordinary discovery in civil litigation.

[00:48:37] Speaker 05:
This is the point the court has made about the imperative of not infringing on the immunity that Congress has granted any more than necessary.

[00:48:45] Speaker 05:
That's why I keep coming back to the word necessary.

[00:48:48] Speaker 05:
My second point is that, Judge Pan, even on remand,

[00:48:51] Speaker 05:
JA1238, the district court rearticulated the theory that it held and that this court affirmed and it talked about carried on in the United States in as much, I'm quoting now, it was allegedly carried on in the United States in as much as the full sum of money, the money to be moved along with Pajos fee was placed in a U.S.

[00:49:09] Speaker 05:
city bank account as a layover on its journey to its final destination, Cuba.

[00:49:13] Speaker 05:
So the court

[00:49:14] Speaker 01:
Right.

[00:49:14] Speaker 01:
So why don't you have to give the discovery where they're asking, what other US bank accounts have you used?

[00:49:21] Speaker 01:
Has this money gone into US bank accounts, et cetera?

[00:49:23] Speaker 01:
Why do you think that that's not?

[00:49:24] Speaker 05:
Just as in Neambel, where the IMF turned over the relevant contracts, the plaintiff still, Mr. Neambel, still had arguments about how there might have been an express waiver.

[00:49:32] Speaker 05:
And this court said, not enough.

[00:49:34] Speaker 05:
You're just speculating.

[00:49:35] Speaker 05:
It's not enough to just come in and say, we think this evidence is false.

[00:49:38] Speaker 05:
They don't have a well-founded.

[00:49:41] Speaker 02:
They have.

[00:49:43] Speaker 02:
documents that support their theory of the case.

[00:49:46] Speaker 02:
That would be different than Diablo.

[00:49:49] Speaker 02:
I'm not asking you to restate the legal rule.

[00:49:56] Speaker 02:
I'm asking you if they actually have documentary evidence.

[00:50:00] Speaker 02:
Not saying they do, but if they had documentary evidence that countered a characterization

[00:50:06] Speaker 02:
in your factual motion to dismiss, that would be different from Neambol, which was sort of pure speculation, as I think we described.

[00:50:14] Speaker 02:
Yes, that would be different.

[00:50:17] Speaker 05:
Well, yes, it doesn't matter, but no, because— Sorry, it doesn't matter, but no.

[00:50:23] Speaker 02:
So it's not different.

[00:50:24] Speaker 02:
Mr. Neambol came forward with documentary evidence that we call pure speculation.

[00:50:29] Speaker 05:
Well, he kept pointing to language in the relevant contracts that he said were sufficient to suggest that there had been an express waiver somewhere.

[00:50:38] Speaker 05:
IMF came forward with the actual contracts and the declaration saying there is no express waiver.

[00:50:43] Speaker 02:
It's a legal question.

[00:50:44] Speaker 02:
What a contract means is a legal question.

[00:50:48] Speaker 05:
I agree it's a legal question what a contract means.

[00:50:51] Speaker 05:
We have come forward with the evidence showing, I do want to emphasize, we showed exactly how much, with contracts that long predated this litigation, contracts between Brazil and PAHO showing how much Brazil would pay PAHO in connection with Mace Medicos.

[00:51:06] Speaker 05:
We provided bank statements showing transactions from Brazil to PAHO in Brazil corresponding to those exact amounts

[00:51:14] Speaker 05:
And we provided declarations explaining that what we have provided is the entirety of the relevant payments.

[00:51:20] Speaker 05:
Now, yes, if they had some basis to nonetheless say that's false, that's phony, and they could satisfy Ne'emble's standard, which is what I keep coming back to.

[00:51:29] Speaker 02:
There's, I mean, false or phony would be great for them.

[00:51:32] Speaker 02:
But also, hang on, you said relevant documents.

[00:51:36] Speaker 02:
There's, in fact, other documents that are relevant.

[00:51:40] Speaker 02:
So we know there's some we need to.

[00:51:43] Speaker 02:
We need to check more from their discovery.

[00:51:45] Speaker 02:
They have to come up.

[00:51:46] Speaker 02:
Is your position that plaintiffs have to come up with everything that they need to counter your factual motion dismissed on their own without discovery?

[00:51:56] Speaker 05:
My position is that Neambl holds.

[00:51:59] Speaker 02:
Please just give me a yes or no answer to this question.

[00:52:02] Speaker 02:
Is your position that to meet the standards, you want to try to quote to me again from Neambl, they have to come forward, they have to have the evidence already themselves?

[00:52:13] Speaker 05:
Yes, they do not get discovery.

[00:52:16] Speaker 05:
They do not get jurisdictional discovery.

[00:52:17] Speaker 02:
What would they ever need discovery for?

[00:52:19] Speaker 05:
I'm sorry?

[00:52:19] Speaker 02:
What will they ever need the discovery for?

[00:52:21] Speaker 05:
Well, if they have enough evidence that they've gotten on their own to create what a court concludes, and the district court did not say this, did not say they have made a specific allegation, a well-founded allegation.

[00:52:32] Speaker 05:
Actually, the district court did say that, and I'm happy to address why that's not right.

[00:52:35] Speaker 05:
Well-founded allegation that any of the discovery they sought or that was ordered is necessary to resolve facts crucial to the immunity determination.

[00:52:43] Speaker 05:
I keep coming back to this court's case law.

[00:52:45] Speaker 05:
This is what we understand this court to have required.

[00:52:50] Speaker 05:
Let's go ahead for the questions.

[00:52:51] Speaker 05:
I'll save by two minutes for a bottle.

[00:52:53] Speaker 02:
Thank you, Council.

[00:52:58] Speaker 02:
Sorry, is it Devin or Duman?

[00:53:01] Speaker 02:
Sorry.

[00:53:12] Speaker 03:
Thank you very much.

[00:53:13] Speaker 03:
May it please the court.

[00:53:14] Speaker 03:
I'm Sam Duhman representing the plaintiffs Ramona Matos, Tatiana Cavallo, Fidel Cruz, and Rossella Rivera.

[00:53:23] Speaker 03:
This court should dismiss Pajos' appeal because it is not an appealable interlocutory order.

[00:53:27] Speaker 03:
And if the court does entertain the appeal, it should affirm the district court's narrow and proper jurisdictional discovery order.

[00:53:35] Speaker 03:
On the subject of appealability, Judge Postberg's discovery order is no different than any other discovery order.

[00:53:40] Speaker 03:
It's a non-final order, not subject to interlocutory appeal.

[00:53:44] Speaker 03:
Categorical rule that PAHO is urging here, its theory would basically give every sovereign or international organization three bites at the appellate apple categorically, as the court pointed out in its questions.

[00:53:58] Speaker 03:
They could file a legal motion to dismiss and lose, raise factual issues,

[00:54:03] Speaker 03:
object and appeal discovery orders, which, as the court pointed out, are required under Phoenix.

[00:54:09] Speaker 03:
And then once the judge takes that evidence and decides once again that they're not immune, get to appeal that decision.

[00:54:16] Speaker 03:
That's their position.

[00:54:17] Speaker 03:
That's untenable.

[00:54:18] Speaker 03:
It's contrary to everything this court and the Supreme Court has said about interlocutory appeals.

[00:54:24] Speaker 03:
The reliance on Neambol is not viable for two reasons.

[00:54:28] Speaker 03:
Number one, this court's prior rejection of PAHO's legal immunity argument.

[00:54:32] Speaker 03:
And number two, the Supreme Court's jammed decision, holding that international organizations like PAHO are not absolutely immune, but are indeed subject to all of the immunity exceptions of the FSIA.

[00:54:43] Speaker 02:
I mean, all Jam did was expand the list of exceptions to immunity.

[00:54:48] Speaker 03:
Yes.

[00:54:48] Speaker 02:
All Jam did was expand the list of exceptions to immunity.

[00:54:50] Speaker 02:
That doesn't really undercut Neambol's reasoning.

[00:54:53] Speaker 03:
Well, the application of Neambol was very clear.

[00:54:55] Speaker 02:
There was only one avenue of- I know, but I don't understand that JAM abrogates Neambol in any way.

[00:55:03] Speaker 02:
I think that's binding precedent on us.

[00:55:05] Speaker 02:
It's just that you have a longer list now of exceptions than you had then.

[00:55:08] Speaker 02:
One, now you have all the FSA- Agreed.

[00:55:10] Speaker 03:
I didn't say it abrogated Neambol.

[00:55:12] Speaker 03:
I'm saying that it renders Neambol inapplicable on the question of interlocutory appeal.

[00:55:18] Speaker 04:
There's another feature of Myanmar.

[00:55:20] Speaker 04:
It doesn't say a whole lot, but everything it does say is followed by a citation to a case.

[00:55:25] Speaker 04:
construing the FSIA.

[00:55:27] Speaker 04:
So if we were just to say, did we think, maybe this isn't the question, but if you were to read this and ask, did this panel think it was articulating a rule that would govern in an FSIA case, and all jam really held now is IOIA cases or FSIA cases, sure looks like Neambal was just relying on principles we've already articulated in FSIA cases.

[00:55:52] Speaker 04:
How would you,

[00:55:53] Speaker 04:
You can respond to that.

[00:55:55] Speaker 03:
I think Neyama was correct in the sense that there was no other avenue other than waiver, which was, as Judge Boesberg agreed, was categorically precluded by the evidence that was presented in that case.

[00:56:08] Speaker 03:
And there had been no prior determination.

[00:56:11] Speaker 04:
The appealability determination, it's one paragraph, and all we cited were FSIA cases.

[00:56:19] Speaker 04:
So to say we're not bound,

[00:56:22] Speaker 04:
And just how do you, in explaining why we're not bound by the ability holding?

[00:56:26] Speaker 03:
If you don't mind, I will answer your question if I can go through the points that I... The answer is that under JAM and under your decision in 2022,

[00:56:37] Speaker 03:
there are many, many more avenues to overcoming the jurisdictional objections than the one waiver issue that was available in the AMO, which was categorically precluded.

[00:56:47] Speaker 03:
And the court articulated what those were.

[00:56:51] Speaker 03:
In this case, the threshold immunity determination was previously decided adversely to PAHO.

[00:56:56] Speaker 03:
And they made all the same arguments, by the way, that Mr. Vilchuk was making to you now about

[00:57:02] Speaker 03:
that this money is sovereign, you know, the US government's brief, that was all rejected by this court.

[00:57:12] Speaker 03:
The burden to Pahoe of litigating in federal court that was the essential wrong of Nyambol has already been overcome, because this court held that their legal objection is invalid.

[00:57:26] Speaker 03:
That's a major difference, and that has nothing to do with Jam.

[00:57:29] Speaker 03:
Jam raises a separate issue, which is the scope of possible issues that can be raised by a plaintiff to overcome immunity.

[00:57:39] Speaker 03:
And on that score,

[00:57:41] Speaker 03:
You know, Nyambol clearly says that absolutely immune defendants, you know, our subject can appeal it when their immunity argument had not been addressed.

[00:57:50] Speaker 03:
And it had not been addressed.

[00:57:51] Speaker 03:
And that's a key point.

[00:57:52] Speaker 03:
So today, you know, there are now multiple more fact-intensive paths to jurisdiction, which this court identified in its 2020 decision, in which Judge Boesberg identified in his discovery order.

[00:58:05] Speaker 03:
That wasn't the case in Nyambol.

[00:58:08] Speaker 03:
The fact-intensive nature of the current jurisdiction is illustrated by, judged by this court's 2022 ruling, which you held.

[00:58:15] Speaker 03:
The financial benefit that violates 1589B is itself wrongful conduct and occurred in the United States.

[00:58:23] Speaker 03:
to it, PAHO received, forwarded, and retained the Mise Medicus money through its Washington, D.C.

[00:58:28] Speaker 03:
bank account.

[00:58:29] Speaker 03:
Accordingly, we believe that the physicians have adequately, have sufficiently alleged that PAHO's conduct of moving money for a fee constituted commercial activity carried on in the United States.

[00:58:40] Speaker 03:
In other words, the prior ruling by this court

[00:58:43] Speaker 03:
against Paja's immunity and Jam work together to eliminate Niambal's applicability on the issue of appellate jurisdiction here.

[00:58:52] Speaker 03:
The court's prior rejection of Paja's legal immunity argument means that Judge Bosberg's discovery order, unlike the order in Niambal, is not the reason Paja will be subjected to litigation when it claims immunity.

[00:59:06] Speaker 03:
That's the result of this court's thorough decision in 2022, opening the door to these

[00:59:12] Speaker 02:
many avenues of overcoming some of the discoveries sought district court understood to be advancing a new jurisdictional theory under the second prong of the commercial exception and act performed in the U.S.

[00:59:26] Speaker 02:
in connection with foreign activity.

[00:59:30] Speaker 03:
I'm sorry I didn't hear your question.

[00:59:31] Speaker 02:
District court said that some of the discovery you sought

[00:59:35] Speaker 02:
was in fact trying a new jurisdictional theory out, an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.

[00:59:44] Speaker 02:
And he rejected that, denied that discovery.

[00:59:50] Speaker 03:
He specifically said that all of his orders were based upon the carried on theory, not the direct effect.

[00:59:55] Speaker 02:
I understand that you had sought broader discovery than that.

[00:59:59] Speaker 03:
Well, we, there was a long, it was almost a two-year process.

[01:00:02] Speaker 02:
You had sought discovery under both prongs one and prong two.

[01:00:06] Speaker 02:
Is that correct or incorrect?

[01:00:08] Speaker 02:
District court said you sought it under both prongs.

[01:00:10] Speaker 03:
We made the argument.

[01:00:11] Speaker 03:
Sure.

[01:00:12] Speaker 02:
Yes, Your Honor, we did.

[01:00:13] Speaker 02:
So if the district court had in fact allowed discovery on the second theory and act outside the territory of the U.S.,

[01:00:24] Speaker 02:
I'm sorry, an act performed in the US for commercial activity conducted elsewhere.

[01:00:30] Speaker 03:
He could have done that.

[01:00:33] Speaker 03:
No, because this court held in the Exxon Mobil case that the parties are not limited to just one theory under the FSIA to overcome the jurisdictional objection.

[01:00:43] Speaker 02:
I understand, if they just objected and said, hang on, hang on.

[01:00:48] Speaker 02:
Nobody's rule of the that is a legally valid theory in this case.

[01:00:53] Speaker 03:
Your Honor, it's not on the table.

[01:00:54] Speaker 02:
They could challenge that.

[01:00:57] Speaker 03:
Respectfully, that's a theoretical question.

[01:00:58] Speaker 02:
Judge Posenberg said that every single one of his... We get to ask theoretical questions because we have to write opinions, not just this case, but other cases.

[01:01:05] Speaker 02:
And so, you're objecting that they got their one appeal done and dusted.

[01:01:10] Speaker 02:
Let's have discovery.

[01:01:11] Speaker 02:
But if, in fact, the discovery goes to a different jurisdictional theory,

[01:01:20] Speaker 02:
What answer then?

[01:01:20] Speaker 02:
It doesn't appeal.

[01:01:22] Speaker 03:
It doesn't.

[01:01:23] Speaker 03:
I'll go through each one of the orders, Your Honor.

[01:01:25] Speaker 02:
I'm not asking that.

[01:01:25] Speaker 02:
I'm asking you a legal question.

[01:01:27] Speaker 02:
If in fact discovery were granted on both prongs one and prong two, could they then appeal at least a discovery on prong two?

[01:01:36] Speaker 03:
I would say no, because.

[01:01:37] Speaker 02:
Then that seems you're exactly in the Neon Bull case.

[01:01:41] Speaker 03:
No, because the problem with Neomble was that they were going to be subjected to any litigation before their legal immunity argument was resolved.

[01:01:49] Speaker 03:
That simply doesn't exist here.

[01:01:50] Speaker 02:
But they have a whole other legal immunity argument now.

[01:01:53] Speaker 03:
No, they got to go to court.

[01:01:55] Speaker 03:
They got to defend this case.

[01:01:56] Speaker 03:
And that's what this court's precedents say.

[01:01:59] Speaker 02:
You could raise six new.

[01:02:02] Speaker 02:
you could invoke every exception there is under the FSIA and throw in a waiver argument as well, and all of that would be open to discovery without them being able to say, hang on, none of those are legally viable?

[01:02:19] Speaker 03:
Well, again, that's not this case, Your Honor, but I would say... I am acutely aware that's not this case.

[01:02:24] Speaker 02:
I'm trying to understand if we have to write an opinion on this jurisdictional question, how do we navigate

[01:02:32] Speaker 02:
How do we navigate this concern?

[01:02:34] Speaker 02:
The Neambul recognizes that you got to stick to the legal theory that's been sustained.

[01:02:44] Speaker 03:
Your Honor, Neambul did not, did not, as this course did, not involve a situation where the defendant's overall

[01:02:55] Speaker 03:
conduct that they claimed was immune, legally immune because it was sovereign and not commercial.

[01:03:03] Speaker 03:
That's the issue they raised.

[01:03:05] Speaker 03:
That's what this court decided.

[01:03:07] Speaker 03:
Because we're an international organization doing healthcare, money we take from Brazil is sovereign.

[01:03:14] Speaker 03:
And they cite the Youngquist case, and they cited the U.S.

[01:03:17] Speaker 03:
government's brief that said, you know, these international organizations, everything is sovereign.

[01:03:20] Speaker 03:
Well, Judge Bosberg rejected that, and this court rejected that.

[01:03:24] Speaker 03:
Because what they did was committed a crime under the Trafficking Victims Protection Act by benefiting from participation in a human trafficking operation.

[01:03:33] Speaker 02:
We did not say they committed a crime.

[01:03:34] Speaker 02:
I beg your pardon?

[01:03:35] Speaker 02:
We did not say they committed a crime.

[01:03:36] Speaker 02:
That's your characterization.

[01:03:38] Speaker 03:
They violated a criminal statute with civil remedies, Your Honor.

[01:03:40] Speaker 02:
That is your argument.

[01:03:42] Speaker 02:
What we're talking about, we upheld one theory.

[01:03:45] Speaker 02:
We send it back.

[01:03:46] Speaker 02:
And if the discoveries start slopping over into a different jurisdictional theory,

[01:03:53] Speaker 02:
It doesn't get to appeal that again.

[01:03:56] Speaker 03:
Our position is it does not violate the rule.

[01:03:58] Speaker 03:
There are two issues here.

[01:04:01] Speaker 02:
Once one theory of jurisdiction is upheld on appeal, there's no immunity.

[01:04:06] Speaker 02:
Everything's open.

[01:04:07] Speaker 03:
That is a classic issue that could be resolved.

[01:04:11] Speaker 03:
And the final order, if it turns out that that extra discovery that your honor is saying, which again, I reject the principle that it's even applicable here because Judge Boasberg said he's not ordering any of that.

[01:04:26] Speaker 03:
I would say two things.

[01:04:27] Speaker 03:
Number one, it does not.

[01:04:29] Speaker 03:
reach the level of encroachment on the defendant's immunity that underlies the Nyambal case.

[01:04:35] Speaker 03:
It just doesn't because they've already been held their basic view that what they're doing is sovereign and not commercial has been rejected.

[01:04:43] Speaker 03:
And there's ample evidence that that money came to the United States and there's ample evidence that the

[01:04:49] Speaker 03:
that the gravamen of the case, which is they're benefiting from moving the money between Brazil and Cuba, was administered and managed out of Washington, DC.

[01:04:59] Speaker 03:
So we have two very, very serious issues right off the bat of that being carried on in the United States.

[01:05:05] Speaker 03:
So for them to have to maybe defend on another theory, that's minor.

[01:05:10] Speaker 03:
That just doesn't reach the rises level of what this court has said you shouldn't be able to do against a sovereign.

[01:05:16] Speaker 03:
And the second reason I would say it's

[01:05:19] Speaker 03:
not a viable approach, is that it completely contradicts the rule against interlocutory appeals of discovery orders.

[01:05:27] Speaker 02:
Well, we have, I mean, the ambal contradicts that.

[01:05:31] Speaker 02:
General, it's just not the same rules of the game when you've got a foreign sovereign entity.

[01:05:40] Speaker 03:
The Supreme Court has said that the interlocutory appeal, Dr. Nutter Cohen, should not be so expansively interpreted as to swallow the rule against interlocutory appeal.

[01:05:52] Speaker 02:
But that in Mohawk, a case involving not involving foreign sovereigns.

[01:05:55] Speaker 03:
Again, there's one thing about Nyambol that survives here, and that is the somewhat higher level of

[01:06:03] Speaker 03:
the standard for what's relevant for discovery, that much we concede, which was you have to make a specific allegation of an issue that's directly relevant to the jurisdictional issue.

[01:06:13] Speaker 03:
And that's exactly what Judge Wolfsburg did.

[01:06:15] Speaker 03:
I mean, he made it very, very clear, and I can read you his order to that effect.

[01:06:29] Speaker 03:
He said,

[01:06:34] Speaker 03:
plaintiffs have provided enough for a well-founded allegation that the commercial activity in question was carried on in the United States.

[01:06:42] Speaker 03:
It's any sight of the materials that we found for ourselves and put into the record, which are at pages

[01:06:51] Speaker 03:
1163 or 1165 of the JA, that the activity in question was carried on in the United States.

[01:06:58] Speaker 03:
And all Nyamble requires is a specific well-founded allegation as opposed to mere conjecture and surmise that has not been conclusively disproven.

[01:07:08] Speaker 03:
So what are the facts that he was referring to when he said that we provided information that showed that this was carried on in the United States?

[01:07:18] Speaker 03:
We found the Executive Committee report by PAHO that says in 2016 that PAHO had placed the project support costs from MICE-Medicos, some $56 million, into the general budget so they were being distributed across the organization.

[01:07:34] Speaker 03:
How does that help?

[01:07:38] Speaker 02:
Because the U.S.

[01:07:39] Speaker 02:
brief in our prior April said, look, if these are program support costs,

[01:07:45] Speaker 02:
That's immune.

[01:07:46] Speaker 02:
That's not commercial activity and therefore immune.

[01:07:51] Speaker 02:
Let me continue.

[01:07:52] Speaker 02:
Where they go and how they're used, how does that show they're not program support costs?

[01:07:59] Speaker 03:
Well, what PAHO's sworn declaration say is that program support costs go to pay indirect costs of the program, right?

[01:08:07] Speaker 03:
That's what their sworn declaration says.

[01:08:09] Speaker 02:
I know, but why isn't coming into the budget in the US part of the indirect

[01:08:14] Speaker 02:
us.

[01:08:15] Speaker 03:
Well, it's just not.

[01:08:15] Speaker 03:
I mean, we asked for discovery on that, and they resisted as if they don't have to prove that.

[01:08:20] Speaker 03:
So they don't want to prove what their declaration says.

[01:08:24] Speaker 03:
But what we found does contradict the basic argument that they're making.

[01:08:29] Speaker 03:
It says that

[01:08:33] Speaker 03:
The final report in 2017, program support costs levied on all voluntary contributions were considered flexible funding and they confirmed that mice medicals project had become a significant source of such funding in recent years.

[01:08:48] Speaker 03:
They said in the audit committee report that Nice Medicos project has continued to recover significant sums to PAHO for project support costs.

[01:08:56] Speaker 03:
Now, what we also provided, which is contrary to their declaration, is a rule that says that program support costs in the regular course of PAHO's business are intended to, in fact, flow through its Washington, D.C., headquarters.

[01:09:10] Speaker 03:
The point not mentioned by PAHO's declaration is that the policies governing PSC funds, and we cite it and it's in the record, established that program support costs are credited to a special fund for program support costs under the control of its director who may approve a distribution of earned program support costs for, among other uses, PAHO headquarters.

[01:09:31] Speaker 03:
And in normal times, PAHO taps the special fund for programs for costs to supplement its general budget.

[01:09:38] Speaker 03:
Those are the facts that Judge Bosberg cited when he said that we've provided specific allegations of this money being used in.

[01:09:47] Speaker 03:
that the program support costs money was carried on in the United States.

[01:09:53] Speaker 02:
I'm curious about how one does this money.

[01:09:55] Speaker 02:
I mean, money is fungible, right?

[01:09:59] Speaker 02:
I mean, I assume unless the money has little markings, special markings on it, there's no way of knowing

[01:10:08] Speaker 02:
Pan American Health Organization has lots of programs going.

[01:10:11] Speaker 02:
There's really no way of showing that the dollars that came from Brazil are these same dollars.

[01:10:19] Speaker 03:
I'm citing their records that say it to these same dollars, Judge.

[01:10:23] Speaker 03:
I'm not making this up.

[01:10:24] Speaker 03:
This is not speculation.

[01:10:25] Speaker 03:
This is PAHOS executive committee annual reports saying that the money from the MICE medicals program, very specific, went into the general budget and the rule saying that the general budget money is used for headquarters.

[01:10:36] Speaker 02:
Well, that's what I'm asking, is they even assume it went into the general budget.

[01:10:45] Speaker 02:
I'm betting a lot of other things went into the general budget, too.

[01:10:47] Speaker 03:
It's the U.S.

[01:10:48] Speaker 03:
nexus.

[01:10:48] Speaker 03:
Judge Bosberg will decide whether or not we win on jurisdiction, but we're entitled to that information.

[01:10:54] Speaker 02:
It's a general budget in the U.S.?

[01:10:55] Speaker 02:
What bank account is that in?

[01:10:57] Speaker 03:
I, you know, they're arguing that we need the bank records to get the bank records.

[01:11:03] Speaker 03:
These are the exact records that Judge Bosberg said we're entitled to because it's relevant to our carried on theory.

[01:11:09] Speaker 03:
And so I think we came up with a lot that contradicts the statements they made in those foreign declarations.

[01:11:16] Speaker 03:
Judge Boesber relied on to say, we've made the specific finding that NIA-MAL requires.

[01:11:21] Speaker 03:
We did.

[01:11:22] Speaker 03:
And so now it's a question of, can we refute all of the factual arguments they're making, including this one, by the way, that it's sovereign and not commercial?

[01:11:31] Speaker 03:
Yes, we're entitled to that discovery as well.

[01:11:34] Speaker 03:
But for Judge Boesber, this was very, very narrow, banking records,

[01:11:38] Speaker 03:
discussions about which banks they were going to use, and he narrowed that to the header involved banks in the United States.

[01:11:45] Speaker 03:
And this question of headquarters activity, you know, when they got the case moved from Miami to Washington, Mr. Anderson, the director of the administration, said that six of the nine people who can speak to the plaintiff's allegations that PAHO profited from the MICE Medicos program and how the finances were used are located in Washington, D.C.

[01:12:06] Speaker 03:
that would be caring.

[01:12:07] Speaker 03:
This is completely different from the other cases because the gravamen of our claim is that they... People who can speak to how money is used in a location doesn't mean that that money was used in that location.

[01:12:19] Speaker 02:
That just means where the people with knowledge are.

[01:12:21] Speaker 03:
but we're entitled to the discovery.

[01:12:23] Speaker 03:
That's all we're talking about here.

[01:12:25] Speaker 03:
That's certainly a specific enough basis for Judge Bostberg to conclude that we're entitled to discovery about the movement of the money and the management of the program, which was all about

[01:12:39] Speaker 03:
PAHO getting 5%.

[01:12:40] Speaker 03:
One of the arguments is how much of this was used to pay Cuba and how much was used to pay whatever else it was used for.

[01:12:48] Speaker 03:
I mean, 90% of the money went to Cuba.

[01:12:50] Speaker 03:
So what program support costs did PAHO really have here?

[01:12:55] Speaker 03:
They collected the money and they put it to work in their general budget.

[01:12:58] Speaker 03:
That's a fee.

[01:12:59] Speaker 03:
That's the argument we're going to make to Judge Boesberg.

[01:13:01] Speaker 03:
That's the fee they obtained from doing this dirty work for Cuba.

[01:13:06] Speaker 03:
And we are on very solid ground that that speaks to commercial activity carried on in the United States.

[01:13:14] Speaker 03:
I have a couple of other points I'd like to make, Your Honor, about this because... I want to make them quickly, then.

[01:13:23] Speaker 03:
Well, the...

[01:13:39] Speaker 03:
Judge Bosberg decided that the plaintiff's allegations stated, you know, a violation of the Trafficking Victims Protection Act with the gravamen being, you know, in the United States and commercial activity with the nexus to the United States.

[01:13:53] Speaker 03:
That was five years ago.

[01:13:55] Speaker 03:
This court decided its jurisdictional issue three and a half years ago.

[01:14:01] Speaker 03:
Since then, we've been fighting with PAHO over

[01:14:04] Speaker 03:
records that we believe are entitled to to overcome their factual motion to dismiss.

[01:14:10] Speaker 03:
As your honor pointed out, they chose to bifurcate the issue of legal immunity and the factual immunity.

[01:14:16] Speaker 03:
To the extent they have to now deal with the jurisdiction,

[01:14:20] Speaker 03:
That's their choice.

[01:14:22] Speaker 03:
But for the plaintiffs who are victims of serious misconduct that the United States government has recognized as being violations of international law and U.S.

[01:14:31] Speaker 03:
law to have to wait three and a half years to get records that the Phoenix consultant case says we're categorically entitled to,

[01:14:39] Speaker 03:
That's a great injustice.

[01:14:41] Speaker 03:
And the precedent, they're pushing on this court to be able to have one appeal after another.

[01:14:46] Speaker 03:
And when they say we're not going to appeal another one, no.

[01:14:49] Speaker 03:
If we win here, Judge Bosberg says, give the documents, and they're not happy with what he orders.

[01:14:57] Speaker 03:
And they want to contest that again under their theory.

[01:15:00] Speaker 03:
They would have an absolute right to another appeal, ad infinitum.

[01:15:05] Speaker 03:
So as the human trafficking legal center wrote in their amicus brief, 40% of the TVPRA cases filed since the law was amended in 2003 to provide a private right of action are still pending.

[01:15:23] Speaker 03:
Power does not contest basic elements of what my clients have alleged, which is that they were trafficked by Cuba to Brazil, that Pahoa was aware of it, and the Pahoa benefited financially from the movement of collecting two and a half billion dollars from Brazil and sending it to Cuba and keeping at least 129 million dollars for itself, for its corporate purposes.

[01:15:45] Speaker 03:
That is

[01:15:46] Speaker 03:
commercial activity carried on in the United States.

[01:15:49] Speaker 03:
I respectfully request that the court dismiss the appeal or affirm on the merits.

[01:15:57] Speaker 02:
Thank you, Council.

[01:15:57] Speaker 02:
All right.

[01:16:01] Speaker 02:
Mr. Bolchuk will give you two minutes.

[01:16:07] Speaker 05:
Thank you, Your Honor.

[01:16:08] Speaker 05:
One thing Mr. Dubbin said at the very end jumped to the very top of my list.

[01:16:11] Speaker 05:
Pahoe absolutely denies that it had any awareness that there was any human trafficking or forced labor involved in base medicos.

[01:16:18] Speaker 05:
It is opposed to all of those things and certainly would not have knowingly participated in any of it.

[01:16:22] Speaker 05:
Mr. Dubbin, I think his presentation made clear their position is if you get one legal theory deemed to be facially viable, assuming facts

[01:16:30] Speaker 05:
To be true, you get jurisdictional discovery on remand on 5, 10, 25, 50, innumerable other untested, potentially unrelated theories.

[01:16:39] Speaker 05:
I submit that cannot be right.

[01:16:41] Speaker 05:
Think about how that would eviscerate IOIA and FSIA immunity.

[01:16:45] Speaker 01:
And think about- Decide that in this case, though?

[01:16:47] Speaker 05:
Yes, I submit you do, Your Honor, because we submit that much of the discovery, and we get into characterizations, but much of the discovery, certainly at least five of the 13, six of the 13.

[01:16:57] Speaker 01:
If we disagree on that, if we think that this is all within the scope of our previous decision, then we don't have... Well, then we have a different argument about, have they satisfied Ne'em?

[01:17:06] Speaker 05:
Well, but I would emphasize to the court,

[01:17:09] Speaker 05:
The district court gave only one reason for five of its 13th ruling in favor of five of the jurisdictional discovery requests that it was relevant to their theory of administration of Mase Medicos.

[01:17:20] Speaker 05:
But think about the mischief that that would cause.

[01:17:22] Speaker 05:
Imagine if they had come in the first appeal and actually advanced administration of Mase Medicos and this court had rejected it as legally insufficient under Youngquist.

[01:17:29] Speaker 05:
Surely they would not have been able to go back and then get discovery on it.

[01:17:32] Speaker 05:
So it creates all sorts of incentives to come in with just one theory.

[01:17:36] Speaker 05:
And you don't have to look farther than this case to see that in reality.

[01:17:39] Speaker 05:
Look at the bottom of page 32 of their brief in this court in the prior appeal.

[01:17:45] Speaker 05:
They basically disavowed the administration of Mase Medicos as a theory.

[01:17:49] Speaker 05:
They said something very close to.

[01:17:50] Speaker 05:
Ajo seeks to redirect this court's attention to its general administration of Mase Medicos, but plaintiff section 1589B claim is based, the specific activity on which it's based is moving money for a fee.

[01:18:02] Speaker 05:
So in this court, they said, no, no, no, not administration of Mase Medicos.

[01:18:05] Speaker 05:
That's not our theory.

[01:18:07] Speaker 05:
They go back to the district court and they get substantial jurisdictional discovery on precisely that theory that cannot be right.

[01:18:13] Speaker 05:
Your honors, I have no time left, but if the court had any questions about his

[01:18:16] Speaker 05:
the general budget, the 5%, that's legally inviolable and factually infirm, and I would be happy to discuss why if it would assist the court.

[01:18:23] Speaker 05:
Otherwise, I ask the court to vacate and remand.

[01:18:27] Speaker 02:
Thank you.

[01:18:27] Speaker 02:
I think we've got strong arguments on both sides, and we thank counsel for their arguments, and the case is submitted.