[00:00:39] Speaker 00:
Okay, the next argued case is number 16, 1342, Abbess against the United States.

[00:00:46] Speaker 00:
Mr. Abbess.

[00:00:47] Speaker 02:
Thank you very much.

[00:00:50] Speaker 02:
Your Honours, thank you for inviting me to present the oral arguments.

[00:00:54] Speaker 02:
I appreciate it.

[00:00:55] Speaker 02:
And I would like to start, please, with some history of these German bombs, if it's okay.

[00:01:01] Speaker 02:
The bombs were initially issued in the 1930s, after the First World War, after the Treaty of Versailles.

[00:01:10] Speaker 02:
to help Germany repay her reparations.

[00:01:13] Speaker 04:
There's an example, I believe, in the record at least of one of your bonds at A-156.

[00:01:19] Speaker 04:
government international five and a half percent bond issue 1930.

[00:01:25] Speaker 04:
Are all of your bonds the same or do you have different bonds?

[00:01:31] Speaker 02:
Well the majority are, there's different bonds.

[00:01:33] Speaker 02:
There were like 82 different kinds of bonds that were issued.

[00:01:37] Speaker 04:
I'm talking about what in this case?

[00:01:39] Speaker 02:
In this case is this principally is this one the Young Bond.

[00:01:41] Speaker 02:
It's called the Young Bond because it was devised by Senator Owen Young.

[00:01:46] Speaker 02:
or devised the plan for these German international bonds and they established as a trustee also the Bank of International Settlements in Basel and Switzerland and the agent... I'm just talking about for purposes of our ability to write an opinion, can we describe your bonds as the German government international bonds?

[00:02:05] Speaker 04:
Yes.

[00:02:06] Speaker 04:
That's it?

[00:02:06] Speaker 02:
Yes.

[00:02:07] Speaker 02:
Yes.

[00:02:09] Speaker 04:
And there was nothing in the record about when it was

[00:02:14] Speaker 04:
precisely that you obtained the bonds, it was, you've said in your brief, it was in connection with the litigation, or in the course of the litigation in the Seventh Circuit?

[00:02:24] Speaker 02:
And before that, in the Northern District.

[00:02:28] Speaker 02:
In the District Court.

[00:02:30] Speaker 02:
In the District Court, and then it went to the summer.

[00:02:32] Speaker 02:
One of my clients, I received the bonds from one of my clients.

[00:02:36] Speaker 04:
The date is potentially important, depending on how that date relates to October 3, 2010.

[00:02:44] Speaker 04:
Right.

[00:02:46] Speaker 02:
So I received the bonds before October 3, 2010.

[00:02:49] Speaker 02:
I received them, and I believe it was 2008 when I first started the case in the district court in Illinois.

[00:02:57] Speaker 04:
2008.

[00:02:57] Speaker 04:
OK.

[00:03:00] Speaker 04:
Thank you.

[00:03:01] Speaker 04:
OK.

[00:03:01] Speaker 04:
Continue.

[00:03:03] Speaker 02:
OK.

[00:03:05] Speaker 02:
Essentially, you know, these bonds or the bonds were sold in the U.S.

[00:03:12] Speaker 02:
by J.P.

[00:03:13] Speaker 02:
Morgan in Manhattan, New York, and they were approved by the U.S.

[00:03:17] Speaker 02:
Senator Stimson at the time, Secretary of State, approved this.

[00:03:20] Speaker 03:
But your problem is the statute of limitations, right?

[00:03:24] Speaker 03:
And when did the claim accrue?

[00:03:26] Speaker 03:
Didn't it accrue when the United States adopted the Validation Treaty?

[00:03:36] Speaker 02:
Well, in terms of the accrual, I don't believe that the date of accrual is when the treaty was signed.

[00:03:43] Speaker 02:
I believe that we have to look at the provisions of the treaty, which is what this court said in the case of Hare versus US when they were addressing the treaty with Japan, that the provisions of the treaty have to be examined

[00:03:56] Speaker 02:
to determine exactly when the accrual of the claim, because the date of the signing of the treaty is one issue, but the accrual for purposes of bringing suit is another issue.

[00:04:10] Speaker 03:
But the treaty, didn't the treaty provide that they could only be redeemed in the United States if they were validated by the administrative order?

[00:04:24] Speaker 03:
I mean, that's the event that caused your claim to accrue.

[00:04:30] Speaker 02:
Not exactly.

[00:04:31] Speaker 02:
Not exactly.

[00:04:31] Speaker 02:
That was the starting point of the problem with this validation treaty.

[00:04:36] Speaker 02:
And I'm referring to the Certain Matters Agreement because there were three treaties.

[00:04:41] Speaker 02:
One treaty was the multinational treaty, which was the London Debt Accord signed between 21 nations

[00:04:48] Speaker 02:
where Germany accepted liability for her debts and said, OK, we want to resolve our pecuniary obligations.

[00:04:54] Speaker 03:
So you're not suing in a German court.

[00:04:58] Speaker 02:
No.

[00:04:58] Speaker 02:
Exactly.

[00:04:59] Speaker 02:
You're suing in a claims court.

[00:05:00] Speaker 02:
Exactly.

[00:05:01] Speaker 02:
So the second treaty established the validation board in the US said to the American bondholders, if you want to get paid, you can go to JP Morgan in Manhattan, New York.

[00:05:12] Speaker 02:
But before you do that, you go to the validation board, which is across the street from JP Morgan, and you validate your bonds.

[00:05:19] Speaker 02:
Subsequently, the treaty was breached, and that's why we claim it's invalid, because Germany and the US shut down that validation board.

[00:05:28] Speaker 02:
So there was no recourse for the American bondholders to validate in the US anymore.

[00:05:32] Speaker 03:
And they were forced to... And when was the board dissolved?

[00:05:35] Speaker 03:
1960.

[00:05:36] Speaker 03:
1960.

[00:05:37] Speaker 02:
So the treaty... I think, you know, it's important to distinguish there are two kinds of treaties in the US, and I'm assuming now we're discussing

[00:05:47] Speaker 02:
that if this treaty is deemed self-executing, because in the Seventh Circuit, the treaty was held as non-self-executing, and I will address that issue, because it affects whether there's a takings or there's not a takings, what type of treaty we're dealing with.

[00:06:03] Speaker 02:
But if the treaty is deemed self-executing, that means automatically enforceable law in the US.

[00:06:09] Speaker 02:
I believe it works at takings because it deprives

[00:06:12] Speaker 02:
individuals, bondholders, of their legal rights and their right to sue for compensation for their bonds.

[00:06:19] Speaker 02:
And it's happened in the other courts that I've been in that you present your claim, you're suing Germany, and the court says, no, you have this treaty, you cannot sue Germany.

[00:06:31] Speaker 04:
What would have prevented you from going into court earlier?

[00:06:35] Speaker 04:
Excuse me?

[00:06:35] Speaker 04:
The fact that you weren't validated?

[00:06:39] Speaker 02:
The fact that, in which court, Your Honor?

[00:06:41] Speaker 04:
Well, what would have prevented you from timely going for validation while the validation facility was open across the street from J.P.

[00:06:50] Speaker 04:
Morgan?

[00:06:50] Speaker 02:
No, well, I was not, I was not born at the time.

[00:06:54] Speaker 02:
I was born in 67, so I... Well, that's part of your problem.

[00:06:57] Speaker 04:
Yeah.

[00:06:57] Speaker 04:
Is that you, at the time of would-be taking, you didn't have ownership.

[00:07:03] Speaker 02:
Yes, well, in terms of the, in terms of the bonds, these are bearer bonds.

[00:07:09] Speaker 02:
So under the law, and I have the cases from the Supreme Court, negotiable instruments, the transfer of ownership transfers title automatically, because these are bearer bonds.

[00:07:20] Speaker 02:
So I'm standing in the shoes of the original bond holder.

[00:07:24] Speaker 04:
Well, that may be a fact, but not for purposes of standing under our case law.

[00:07:29] Speaker 04:
Like, for example, the CRV Enterprises is the lead case, and it was relied upon by the Court of Federal Claims, and it's relied upon by the government.

[00:07:39] Speaker 04:
But you didn't file a reply brief.

[00:07:42] Speaker 04:
So I have no way of knowing what your reaction is to the precedent that actually turned this decision on standing, both below and in the government's argument here.

[00:07:56] Speaker 02:
Well, Your Honor.

[00:07:57] Speaker 04:
The CRB stands for the proposition that if you don't own

[00:08:01] Speaker 04:
For example, if it's a question of flooding property, the government floods somebody's property.

[00:08:06] Speaker 04:
If you didn't own the property when it got flooded, and your cause of action has resulted in flooding, then you bought the property later, and you can't come in and complain as a matter of standing.

[00:08:18] Speaker 02:
OK, well, my answer to that, and I understand your question, Your Honor, is that negotiable instruments are different from real property, because these are

[00:08:28] Speaker 02:
transferable.

[00:08:30] Speaker 02:
The title transfers by possession.

[00:08:32] Speaker 02:
When you possess the bonds, you have the right to make a claim.

[00:08:35] Speaker 02:
In the Supreme Court case of Shaw, I have the case here.

[00:08:38] Speaker 02:
It says that the right to sue, the right to sue of the bearer, the bearer of the bond, whoever's holding the bond, has the right to sue.

[00:08:46] Speaker 02:
And that's the essence of the motion.

[00:08:47] Speaker 04:
Well, that was the point I was making, was that the people, whoever owned these bonds, at the time that there was a validation

[00:08:55] Speaker 04:
procedure that was available could have gone to the validation procedure and got them validated.

[00:09:01] Speaker 04:
And if they had them validated, they could go to the United States District Court and sue the issuer of the bond saying, pay me.

[00:09:08] Speaker 04:
And what CRV says is that when you are later on buying the asset that was involved, you didn't have standing to complain about what happened earlier.

[00:09:24] Speaker 04:
A bearer bond is... Would you argue a bearer bond is different from a bond that's registered?

[00:09:34] Speaker 04:
No, you wouldn't argue that.

[00:09:37] Speaker 02:
Yes, a bearer bond is freely transferred.

[00:09:40] Speaker 02:
It's not like a registered bond.

[00:09:41] Speaker 02:
A bearer bond is any person who's holding that bond has the right to sue.

[00:09:47] Speaker 02:
And the reason why the bondholders could not sue earlier... If they have standing.

[00:09:52] Speaker 02:
Yes.

[00:09:53] Speaker 02:
Yes, of course.

[00:09:54] Speaker 02:
Of course, if you're the holder of the bearer bond, automatically you have standing.

[00:09:58] Speaker 02:
If you're the holder of the bearer bond, that means you have the right.

[00:10:04] Speaker 02:
You have two kinds of rights.

[00:10:06] Speaker 02:
One is to receive the principle.

[00:10:08] Speaker 02:
from the issuer.

[00:10:10] Speaker 02:
And the second, you have the right to receive the interest.

[00:10:12] Speaker 04:
I understand that.

[00:10:13] Speaker 04:
Because there was no reply brief filed here, I have trouble understanding your reaction to what I view to be the solid precedent.

[00:10:22] Speaker 04:
I think the government's going to argue the CRV on the standing point.

[00:10:26] Speaker 02:
Well, I think the Supreme Court case supersedes CRV.

[00:10:30] Speaker 02:
I think the Supreme Court says what it says negotiability gives you the right to sue.

[00:10:35] Speaker 02:
It means you have standing.

[00:10:36] Speaker 02:
It says, on a negotiable instrument like a barrel gun.

[00:10:39] Speaker 04:
Mr. Shaw, you say?

[00:10:40] Speaker 02:
Yeah.

[00:10:40] Speaker 02:
I will give you the... There's two cases from the Supreme Court on negotiability and negotiable instruments.

[00:10:51] Speaker 02:
And they discussed standing.

[00:10:54] Speaker 03:
But even if you're right on standing, you sued too late.

[00:10:58] Speaker 03:
Well, no, the question... And that goes back to accrual.

[00:11:01] Speaker 03:
When you acclaim accrued.

[00:11:03] Speaker 02:
Well, the reason why we waited

[00:11:07] Speaker 02:
to sue is because the treaty prohibited the non-validated bondholders from suing until all the validated bondholders' claims were paid off.

[00:11:20] Speaker 02:
This is what the treaty did.

[00:11:21] Speaker 03:
Procluded the right to sue in Germany?

[00:11:24] Speaker 02:
Anywhere.

[00:11:24] Speaker 02:
Precluded your compensation claim.

[00:11:27] Speaker 04:
Precluded payment.

[00:11:28] Speaker 04:
It didn't preclude going to court.

[00:11:30] Speaker 04:
Lots of people went to court on these moms.

[00:11:33] Speaker 04:
You know, we have four or five cases of people who went into court on these moms before October 3, 2010.

[00:11:41] Speaker 04:
Now, the access to the court wasn't being barred, the ability to get paid.

[00:11:46] Speaker 04:
So, if you had gotten validation, because it's clear that you can't get in a U.S.

[00:11:53] Speaker 04:
court without validation, that's what the treaty said.

[00:11:56] Speaker 04:
Now, if you'd gotten your validation, you could have gone to a U.S.

[00:11:59] Speaker 04:
District Court, and you're not in one of the settling parties, you're a non-settling, validated holder, you go and you sue the issuer and you say, you owe me the money.

[00:12:10] Speaker 04:
And you get a judgment.

[00:12:11] Speaker 04:
It's like a default judgment almost, because the issuer has no defense.

[00:12:16] Speaker 04:
Bonds are payable.

[00:12:17] Speaker 04:
And you have a judgment, which you have to wait a while to enforce.

[00:12:22] Speaker 04:
That's all.

[00:12:23] Speaker 02:
Yes, but the problem is you cannot get it.

[00:12:26] Speaker 04:
It doesn't affect your ability to perfect your interest by getting the judgment.

[00:12:31] Speaker 02:
Well, the way I'm reading this court's precedent in Ladd versus US and the Supreme Court precedent in Bay Area Laundrie case

[00:12:40] Speaker 02:
that the cause of action accrues when you have a complete and present cause of action.

[00:12:48] Speaker 02:
Present.

[00:12:48] Speaker 02:
So it's the situation now.

[00:12:50] Speaker 02:
So you could sue before.

[00:12:53] Speaker 02:
Correct.

[00:12:53] Speaker 02:
I have a non-validated bond I can sue, but I have no right to obtain relief.

[00:12:58] Speaker 02:
So there's two points in the accrual case that says the cause of action accrues when you can sue and you have the right to obtain relief.

[00:13:08] Speaker 02:
The problem with this treaty, what it did, was that it prevented or prohibited or precluded the non-validated bondholders from obtaining any relief.

[00:13:18] Speaker 00:
So to prevail, are you saying that we would have to invalidate the treaty as an inappropriate action, government action, or treat it as a taking?

[00:13:31] Speaker 02:
Yes, I say that if the treaty is considered as

[00:13:38] Speaker 02:
self-executing, which means automatically law in the US.

[00:13:42] Speaker 02:
I mean, because what this treaty did was bring in a German law by incorporation.

[00:13:48] Speaker 02:
Because now we're dealing actually, this validation law is actually a German law, it's not a US law.

[00:13:53] Speaker 02:
The US permitted the validation board in New York to operate under German law for a certain period of time.

[00:14:01] Speaker 02:
And then it closed it down.

[00:14:02] Speaker 02:
So the bondholders here

[00:14:04] Speaker 02:
have the non-validated bondholders, such as the bonds I have, had no normal recourse in the U.S.

[00:14:12] Speaker 02:
So the treaty is breached.

[00:14:13] Speaker 02:
I think it should be invalidated.

[00:14:15] Speaker 00:
So we would then have to hold that there's no limitations period in terms of challenging the treaty, despite its self-termination.

[00:14:25] Speaker 02:
Exactly.

[00:14:26] Speaker 03:
But you can only have a taking based on a lawful action.

[00:14:31] Speaker 03:
can't have a taking based on an unlawful action.

[00:14:35] Speaker 03:
If you're saying the treaty was invalid, then that doesn't lead to a taking.

[00:14:41] Speaker 02:
Well, I'm saying that the treaty, in my opinion, is this bilateral treaty between the US and Germany, I believe it's unconstitutional.

[00:14:57] Speaker 02:
Because it clearly, if it's deemed enforceable law in the US, it's automatic.

[00:15:03] Speaker 02:
It takes away or deprives the bond holder of their right to sue Germany.

[00:15:07] Speaker 02:
The Federal Circuit has said that in the case of Alliance versus descendants of Texas, that a legal claim is a property interest that is subject to a taken claim.

[00:15:20] Speaker 02:
Now, the other way to say, the other way, if you don't want to invalidate the treaty, is to simply declare that it's non-self-executing, in the sense that there was no implementing legislation by Congress to implement this treaty, that it was promises between two nations.

[00:15:37] Speaker 02:
So, okay, they made these promises, and then they breached their promises.

[00:15:41] Speaker 02:
And therefore, if it's not enforceable, as automatically federal law in the US, then the bondholders can proceed with their claims against Germany.

[00:15:51] Speaker 02:
This is one way to deal with it.

[00:15:54] Speaker 00:
So let's hear from the government.

[00:15:55] Speaker 00:
We'll save you rebuttal time.

[00:15:56] Speaker 02:
All right, thank you.

[00:16:02] Speaker 00:
Mr. Canazares.

[00:16:03] Speaker 01:
Good morning.

[00:16:04] Speaker 01:
I may have pleased the court.

[00:16:06] Speaker 01:
Mr. Abbas's claim accrued, if at all, more than six decades ago when the trial court reached the right result in dismissing it as being barred by the statute of limitations, but also for lack of standing and for failure to state a claim.

[00:16:18] Speaker 01:
With respect to the statute of limitations issue, the only action on the part of the United States that Mr. Abbas is pointing to that could plausibly constitute a taking would be the entering into of the treaty in 1953 when the United States and Germany had turned into this bilateral treaty, the purpose of which was to bring about some certainty with respect to these German bonds.

[00:16:41] Speaker 01:
And he is pointing to the treaty itself.

[00:16:43] Speaker 01:
He does so in his brief as well as his complaint

[00:16:46] Speaker 01:
pages 5, 7, 9, and 18 of his brief.

[00:16:49] Speaker 01:
He notes that it is the treaty itself and the terms and the effects thereof that have taken the property.

[00:16:54] Speaker 01:
And I think Mr. Voss's argument here today is consistent with that notion, in that he takes issue with the terms of the treaty.

[00:17:00] Speaker 00:
Well, and he also presents something I don't want to put words in his mouth, but some sort of holder in due course of these bonds shouldn't be bound by what was agreed to 60 years ago.

[00:17:14] Speaker 01:
Well, Your Honor, that argument is misplaced for the reason that the bondholders and the other circuits that have addressed these claims brought by these unvalidated bondholders have rejected the argument that he's making here today.

[00:17:30] Speaker 01:
The notion that holders of these bonds that have failed to validate them in a timely way were not precluded from bringing some claim against Germany at an earlier date.

[00:17:41] Speaker 01:
In the World Holdings case in particular, the 11th Circuit rejected the argument that the so-called non-assenting bondholders, those are the ones who would not want to go through this validation process, rejected the notion that they were somehow couldn't bring their lawsuit before 2010.

[00:18:00] Speaker 01:
And in particular here, as the trial court properly recognized, he is conflating a cause of action against Germany with a cause of action against the United States.

[00:18:09] Speaker 01:
obviously very separate things.

[00:18:10] Speaker 01:
To the extent that he's alleging a taking, and at this point I know that there's some inconsistency.

[00:18:16] Speaker 01:
If he's alleging a taking, he cannot simultaneously argue that the United States is in breach of the treaty.

[00:18:22] Speaker 01:
But to the extent that he's alleging that a taking occurred, that cause of action would have accrued, if at all, in 1953, which is, as he's acknowledged, long before he took possession of the bonds.

[00:18:33] Speaker 01:
His citation to his discussion of the CRV Enterprises case is relevant for purposes of standing.

[00:18:40] Speaker 01:
The CRV Enterprises case does recognize the proposition, as Judge Clementer noted, that to state a claim for taking, or to recover on a taking theory, you need to be the owner of the property at the time that the taking occurred.

[00:18:54] Speaker 01:
And the problem that Mr. Abbas has is that he was not the owner at the time that the treaty was entered into.

[00:19:00] Speaker 01:
And nor was he standing in the shoes.

[00:19:04] Speaker 01:
And the Shaw case that he cites to does not overcome his burden of demonstrating standing.

[00:19:11] Speaker 01:
There is no proposition that I'm aware of that would allow someone holding a bond to recover on the basis of some alleged violation that occurred many decades before he took possession of it.

[00:19:24] Speaker 01:
So as the trial court recognized, the fact that he did not own the bonds in 1953

[00:19:29] Speaker 01:
as a separate basis for his not being able to show standing, because he had no entry.

[00:19:34] Speaker 04:
But if you were correct that the statute was told to October 3, 2010, if you were correct in that argument, he says that he obtained his bonds before that date.

[00:19:52] Speaker 01:
Yes, Your Honor.

[00:19:54] Speaker 01:
According to Mr. Abbas, he came into possession of these bonds sometime prior to October 3, 2010.

[00:20:00] Speaker 01:
The October 3, 2010.

[00:20:02] Speaker 04:
Can we accept that compromises of deciding this case?

[00:20:07] Speaker 04:
Because the date of which he bought those bonds was not clear in the record below.

[00:20:12] Speaker 04:
In fact, the opinion of the Court of Fair Claims said as much.

[00:20:15] Speaker 01:
Well, Your Honor.

[00:20:17] Speaker 01:
My understanding from the trial court's decision is that the date on which he took possession of the bonds, there was some uncertainty on the record.

[00:20:26] Speaker 01:
The government does not have information to dispute his assertion that he acquired it some time before 2010.

[00:20:32] Speaker 01:
But certainly, the facts before the trial court would be reviewable for clear error, and we don't have a reason to take issue with those facts.

[00:20:39] Speaker 01:
But the October 3, 2010 date is irrelevant for purposes of the statute of limitations.

[00:20:45] Speaker 01:
for the reasons I just went through, but the court in the Korber case in the Seventh Circuit in which Mr. Abbas was counseled did address the timeliness problem and noted that these claims brought by these unvalidated bondholders could have been brought decades ago and that there were, this is in the Seventh Circuit's language, it was an attempt to circumvent the requirements under the treaty.

[00:21:09] Speaker 01:
So I respectfully disagree with this characterization that the treaty itself

[00:21:13] Speaker 01:
precluded him somehow from bringing his claim earlier.

[00:21:17] Speaker 01:
With respect to the other basis that the court reached, which was failure to state a claim, because Mr. Abbas did not own the bonds at the time that the alleged taking occurred, he is unable, he does not have a cognizable property interest that could allow him to prevail.

[00:21:33] Speaker 04:
And you disagree with his notion that, as Judge Newman was suggesting, like the holder in due course, the person he's holding a bearer bond somehow distinguishes CRV.

[00:21:46] Speaker 01:
Yes, Your Honor.

[00:21:47] Speaker 01:
We do disagree with that proposition.

[00:21:49] Speaker 01:
I don't think that the notion that these are bearer bonds that do typically give ownership rights to the person who possesses them.

[00:21:59] Speaker 01:
But the mere fact that that is the nature of the property right that he is pledging does not

[00:22:03] Speaker 01:
circumvent the standing requirement.

[00:22:05] Speaker 01:
If it were otherwise, there would be no statute of limitations.

[00:22:09] Speaker 00:
But for the treaty, there might be a quite different situation.

[00:22:14] Speaker 00:
Don't you think the bonds finally surfaced after all these years?

[00:22:19] Speaker 01:
Well, Your Honor, that does get to the treaty itself in that the treaty did establish mechanisms for this validation process that were the treaty parties contemplated

[00:22:30] Speaker 01:
a short-term process for the validation procedures to unfold, and it phased out this validation board in the United States in 1960.

[00:22:39] Speaker 01:
But all of these bonds were issued between World War I and World War II, so there's no question that the validation board was set up to resolve those already existing bonds, and presumably those are the bonds that Mr. Abbas has as well.

[00:22:53] Speaker 04:
But in terms of the failure to state a claim, I do want to- 1960, actually, is the sixth year, essentially, respecting the six-year statute of limitations in the core federal claims.

[00:23:02] Speaker 01:
Well, it may be off by one year.

[00:23:05] Speaker 04:
But it's plus a year.

[00:23:07] Speaker 01:
Right.

[00:23:07] Speaker 01:
It would be plus a year, the 1960 date.

[00:23:10] Speaker 01:
But what the treaty said was it actually gave, I believe it was until 1958, that bondholders had to come forward and validate their bonds.

[00:23:19] Speaker 01:
But the notion that he's arguing today, I do want to emphasize, is

[00:23:22] Speaker 01:
The notion that the court should examine this particular requirement is problematic for a number of reasons.

[00:23:28] Speaker 01:
Number one, as the court recognized in the Belk and the Abraham-Urey cases, in a takings context, the United States, when it enters into these sort of settlement agreements that are, by their definition, a sort of political judgment, they are not susceptible to judicial review.

[00:23:45] Speaker 01:
In the Belk case, the political question doctrine was implicated involving the settlement of claims against the government of Iran.

[00:23:53] Speaker 01:
And also, as far as takings are concerned, he cannot show that he had any sort of legitimate investment-backed expectations that were deprived, which is one of the elements.

[00:24:04] Speaker 04:
But that ground wasn't passed on below.

[00:24:07] Speaker 04:
That's correct, Your Honor.

[00:24:09] Speaker 04:
Your merits argument on the takings claim is asking a lot of us, because we don't find facts.

[00:24:15] Speaker 01:
Yes, Your Honor, I would agree with that.

[00:24:17] Speaker 04:
And the government's position is very clearly that- Background coloration, isn't it?

[00:24:22] Speaker 01:
That's fair, Your Honor.

[00:24:24] Speaker 01:
Our position is that the Court should affirm, the most immediate problem being the statute of limitations.

[00:24:28] Speaker 04:
Well, all we have in front of us now are the statute of limitations and the standing issues.

[00:24:32] Speaker 01:
Right.

[00:24:32] Speaker 01:
Well, certainly the Court would be within its purview to affirm on these alternative grounds.

[00:24:37] Speaker 01:
And the government's position is, should it reach the merits of the takings issue, which he has raised in his brief, as an alternative basis, we would respectfully ask the Court to affirm on that basis as well.

[00:24:49] Speaker 01:
But Your Honor is correct.

[00:24:50] Speaker 01:
In terms of the self-executing treaties, and Mr. Abbas has referred to this doctrine, and it is somewhat of a complex doctrine, but his argument seems to be that if the treaty, he seems to be trying to support an argument that he wants the court to find that the United States has somehow breached the treaty.

[00:25:08] Speaker 01:
And again, that's problematic, not only because it's inconsistent with the notion of bringing a takings claim, but it does ask the court to inquire into the very

[00:25:17] Speaker 01:
essence of the treaty itself, which was, again, a sort of a political judgment that this would be a way to resolve these claims with Germany in terms of a bilateral treaty.

[00:25:27] Speaker 01:
And the Court of Federal Claims does not have jurisdiction, as we pointed out in our brief, to examine claims that are emanating from a treaty.

[00:25:34] Speaker 01:
So that would be another obstacle to the argument that he seeks to make.

[00:25:38] Speaker 01:
But in any event, the self-exiting treaty doctrine is not really relevant to the Court's resolution of this dispute.

[00:25:45] Speaker 01:
For those reasons, we respectfully request the court affirm the judgment below.

[00:25:48] Speaker 00:
Thank you.

[00:25:49] Speaker 00:
OK.

[00:25:49] Speaker 00:
Thank you, Mr. Kennedy.

[00:25:51] Speaker 00:
So Mr. Abbas, you have some rebuttal time.

[00:25:54] Speaker 00:
Yes.

[00:26:02] Speaker 02:
Well, I respectfully disagree with his contention.

[00:26:08] Speaker 02:
Dames and Moore, which was one of the cases that dealt with the president's power to settle claims.

[00:26:13] Speaker 02:
First of all, this treaty didn't settle anything, didn't resolve anything.

[00:26:17] Speaker 02:
It created a mechanism for certain bondholders who wanted to validate and get lower payments to go through the German system.

[00:26:24] Speaker 02:
The others who wanted full payment had to wait in line, and their claims were suspended for decades, for 60 years.

[00:26:32] Speaker 02:
I have a client who's over 80 years old.

[00:26:34] Speaker 02:
She's almost 90, and she's been waiting all her life to get her bonds redeemed.

[00:26:38] Speaker 02:
All she wants to do is go to JP Morgan, present her bonds.

[00:26:42] Speaker 02:
And these treaties are blocking her from suing JP Morgan and from suing Germany.

[00:26:47] Speaker 02:
They've taken away her rights.

[00:26:48] Speaker 02:
She's presented bonds in Germany.

[00:26:50] Speaker 02:
They told her, we're not going to validate.

[00:26:52] Speaker 02:
Thank you very much.

[00:26:53] Speaker 02:
That's it.

[00:26:54] Speaker 02:
So this treaty wants to send people to Germany, and Germany doesn't want to validate bonds.

[00:27:01] Speaker 02:
So it deprives their claim.

[00:27:03] Speaker 02:
James and Ruth says that a suspension of claims, you have the right to go to the Court of Federal Claims to assert your takings claim.

[00:27:12] Speaker 02:
This is what James and Ruth does.

[00:27:14] Speaker 04:
I appreciate the difference between your client who was an original purchaser of the bonds 80 years ago and you.

[00:27:21] Speaker 02:
Yes, well, I received some of the bonds from my client.

[00:27:25] Speaker 02:
So what I'm saying is the holder in due course.

[00:27:28] Speaker 04:
We understood that.

[00:27:30] Speaker 02:
Yeah.

[00:27:31] Speaker 04:
So the other point is... I recall you were reacting to the government's argument on the merits about investment-backed expectations and that sort of thing.

[00:27:40] Speaker 02:
Well, we have vested rights.

[00:27:40] Speaker 04:
The client who actually bought the bonds 80 years ago had different expectations than you did.

[00:27:45] Speaker 02:
No, but the bearer of the bond has vested rights.

[00:27:48] Speaker 02:
And in the sinking fund cases... I understand.

[00:27:50] Speaker 02:
You know, these vested rights are irrevocable.

[00:27:53] Speaker 02:
In the James and Moore case, the president held that the claims could be transferred to Den Haag because those were contingent rights that the president could take away.

[00:28:05] Speaker 02:
But with their bonds and with these irrevocable vested rights, we're saying that this treaty has deprived the bondholders of their rights by incorporating a German law into the US, which

[00:28:19] Speaker 02:
Article 52, he claims that we were not prohibited, we were.

[00:28:23] Speaker 02:
The Treaty for UST 797, which is the second validation treaty, which established the Validation Board and incorporated Article 52 of the German law, says you cannot sue for compensation until all the other bondholders are paid.

[00:28:38] Speaker 02:
So the non-assenting bondholders who wanted full payment and they had the right.

[00:28:44] Speaker 02:
Not all people wanted quick payment and settlement and pennies on the dollar.

[00:28:47] Speaker 02:
Some people wanted their full rights.

[00:28:51] Speaker 02:
So they had to wait until 2010.

[00:28:54] Speaker 02:
And I'm saying that the accrual of the takings claim runs parallel with the accrual of the claim against Germany, because you cannot make a takings claim unless you have a valid legal claim that has been interfered with or that has been taken.

[00:29:09] Speaker 02:
So the bondholders did not have cognizable legal claims against Germany until October 2010.

[00:29:16] Speaker 02:
And that's when their right to sue Germany and to obtain relief, not only to sue.

[00:29:20] Speaker 02:
I can sue in a million courts.

[00:29:22] Speaker 02:
I can sue every day in a different court based on these bonds.

[00:29:24] Speaker 02:
but I will not obtain relief until after 2010.

[00:29:27] Speaker 02:
So that's why the rightness of the accrual date, okay, the treaty was signed in 1953, but it doesn't mean that a person doesn't have rights when the treaty prohibit that person from presenting their claims until 2010 or obtaining relief until after 2010.

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

[00:29:44] Speaker 00:
Any more questions?

[00:29:47] Speaker 00:
Any more questions?

[00:29:49] Speaker 00:
Okay.

[00:29:49] Speaker 00:
Thank you.

[00:29:50] Speaker 00:
Thank you, Mr. Abbas.

[00:29:51] Speaker 00:
Thank you very much.

[00:29:51] Speaker 00:
Thank you.

[00:29:52] Speaker 00:
The case is taken under submission.