[00:00:00] Speaker 02:
Six dash two three eight nine aviation and general insurance versus the United States

[00:00:46] Speaker 02:
Is it Mr. Perlis?

[00:00:48] Speaker 02:
Perlis, please proceed.

[00:01:01] Speaker 04:
Good morning.

[00:01:05] Speaker 04:
Judge Wheeler's principal error in the appeal before you

[00:01:11] Speaker 04:
is that he adopts the government's argument that the Fifth Amendment does not distinguish between plaintiff's takings claim and the matter of Alimanestiano, which is a sister case arising out of the same spousal, which is currently briefed before this circuit.

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In Alimanestiano,

[00:01:40] Speaker 04:
We have a circumstance which is very much like Abhiyam Yahi and there you have a circumstance in which plaintiffs receive compensation under an espousal and are simply dissatisfied with the outcome.

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Plaintiffs in those circumstances really fail to understand that an espousal is inherently a compromise

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of private party claims negotiated on a government to government basis.

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What happened in this case or to these particular plaintiffs is very different and very unforeseeable when looked at from the context of the history of espousal practice in the United States.

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In this case, plaintiffs' claims were successfully espoused.

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The claims were effectively sold to the government of Libya as part of a package of claims in which the government of the United States received a total of $1.5 billion.

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And then plaintiffs' prorated share or appropriate share of that $1.5 billion was used for entirely for purposes other than to compensate the claimants.

[00:03:00] Speaker 01:
It was used to compensate.

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Other claimants.

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It was used to compensate other claimants.

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For example, $209 million of the $1.5 billion was used to compensate plaintiffs who had never filed claims against the government of Libya in proceedings before district courts.

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There are many other examples of internal ways in which

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That money might have been distributed differently.

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For example, in the 9-11 Victims Compensation Fund and in the current state sponsor, Terrorism Victims Fund, there's a collateral offset.

[00:03:42] Speaker 01:
My understanding is that the money was allocated for claims of U.S.

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nationals.

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Is that right?

[00:03:48] Speaker 04:
The money was allocated for the claims of U.S.

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nationals who were natural persons or largely natural persons.

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For example, claimant here, New York Marine, is a U.S.

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corporation headquartered in New York.

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The British, the other claimant here, the aviation general, the British company stands in the shoes of Pan American World Airways, which is also a U.S.

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corporation.

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What happened here and what is unprecedented in espousal law going back perhaps 100 years, certainly as early as the

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the sinking of the Lusitania was the successful espousal of a claim as a foreign policy matter.

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And then during the domestic distribution process, quite apart from the international relations portion of the espousal, the funds that were supposed to be used for one claimant were used entirely for the benefit of

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additional claimants.

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It is very much analogous to what the Supreme Court addressed in Lingle when it talked about parties bearing unfair burden as the government carried out some public policy.

[00:05:14] Speaker 02:
What is your property interest that was taken?

[00:05:17] Speaker 04:
There is a property interest.

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Both the Alimones-Diano court and this court held that the

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actions filed before the U.S.

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District Court for the District of Columbia with property interests, and that's consistent with a long line of cases.

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Your property interests arise from the Subrogation Clause and the underlying insurance contracts, correct?

[00:05:42] Speaker 04:
In the case of New York Marine, under insurance law, they wind up owning the hull of the aircraft.

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So their property claim arises from the destroyed hull of the aircraft.

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In the case of aviation in general, it is as you just stated.

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It's a subrogation claim?

[00:05:57] Speaker 03:
It's a subrogation claim.

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But when those contracts were entered into, Allied did not have any reasonable expectation of being able to sue on those subrogation clauses if the court visa was a hostile foreign nation.

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I have the largest portfolio of those kinds of claims in the United States.

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And at all times, those insurance carriers and the individual plaintiffs on the Lockerbie, what's sometimes referred to as the Lockerbie aircraft, maintain those claims with the expectation that they would be successful.

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And certainly the Lockerbie plaintiffs were

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Well, I know that the insured had had claims.

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Their claims accrued when the Lockerbie jetliner was bombed.

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But as far as your interest is concerned, allies, when the underlying insurance contracts were entered into, you had no expectation of being able to subrogate against a hostile nation.

[00:07:15] Speaker 04:
Well, I think there was an expectation

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that there would be litigation against that hostile nation going back all the way to the mid 1980s when that act occurred.

[00:07:29] Speaker 01:
There was no right to file a lawsuit at that time, right?

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Libya had sovereign immunity.

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It wasn't on the state-sponsored list of terrorists in 1980.

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That didn't happen until 2008.

[00:07:40] Speaker 04:
I'm sorry?

[00:07:41] Speaker 02:
Libya wasn't a state-sponsored

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on the list of terrorist countries that was deprived of sovereign immunity in the United States under the statute at the time of these acts.

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Libya has been on the terrorist list for a substantial period of time.

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Not in 1980 when these acts occurred.

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When these claims accrued in 1980s, in the early 1980s, Libya had sovereign immunity.

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in the United States from being sued.

[00:08:10] Speaker 02:
I don't understand you're looking at me like I'm confused.

[00:08:13] Speaker 02:
I'm sorry.

[00:08:15] Speaker 04:
A cause of action against a foreign sovereign for an act of terrorism accrues if the sovereign was either on the list of state-sponsored terrorism at the time of the attack or if it was added to the list in part

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as a result of that attack.

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It's a two-pronged test.

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And there's no question that Libya has been on the list of state-sponsored terrorism as a result of the bombing of Lockerbie and many other attacks that took place.

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Let's get an underlying issue settled here.

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At the time of the attack, Libya was a state sponsor of terrorism.

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But it had sovereign immunity at the time that the insurance contracts were entered into.

[00:09:10] Speaker 04:
Libya had immunity.

[00:09:17] Speaker 04:
Well, I think the better way to look at it is Libya's immunity, Iran's immunity, came under attack in the United States.

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At the time that the contracts were entered into, Libya had sovereign immunity from lawsuits being brought against it by US nationals.

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In retrospect,

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That is correct.

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But those claims were continuously prosecuted.

[00:09:47] Speaker 03:
We're looking at an insurance contract, and I'm asking you, when that contract was entered into, Libyan George saw an immunity.

[00:09:55] Speaker 03:
Yes.

[00:09:56] Speaker 03:
OK, thank you.

[00:09:58] Speaker 02:
Going back to my question from earlier, I was asking you what the property interest is, because in your blue brief, I find it confusing when you have a header that says, plaintiffs do not allege that the sale of their claims to Libya was a taking.

[00:10:10] Speaker 02:
but are challenging defendants' decision to exclude them from the distribution of those proceeds.

[00:10:17] Speaker 02:
Well, you certainly didn't have a vested property interest in actual proceeds in the settlement.

[00:10:23] Speaker 02:
I mean, that can't even reasonably be argued.

[00:10:25] Speaker 02:
I understood your property interest as alleged below to be your property interest in the lawsuit that you filed and getting to continue that suit.

[00:10:33] Speaker 02:
Am I mistaken?

[00:10:35] Speaker 02:
Because you have to have a vested property interest.

[00:10:37] Speaker 02:
I think there's a question of whether your current claim

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even at the state it was in is a vested property interest.

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But putting that aside, your vested property interest can't be in some portion of the settlement.

[00:10:48] Speaker 02:
You had no vested interest in a portion of the settlement.

[00:10:51] Speaker 04:
We have a property interest in the claims that were pending in the US District Court for the District of Columbia at the time the espousal was entered into.

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The underlying interest

[00:11:07] Speaker 04:
for those claims is in the case of New York Marine is an aircraft hull.

[00:11:12] Speaker 04:
And in the case of the other insurance carrier is the subrogation claim that it has on behalf of Pan American World Airways.

[00:11:23] Speaker 02:
So you're not claiming that your property interest, as you allege in your brief as the header on page 26, when you say we're not challenging the sale of the claims, but we're challenging defendant's decision to exclude them from the distribution

[00:11:36] Speaker 02:
of the proceeds.

[00:11:37] Speaker 02:
That's not an accurate header.

[00:11:39] Speaker 02:
It doesn't really reflect what you think your property interest is, correct?

[00:11:42] Speaker 04:
What that header was supposed to explain is we are not challenging the right of the United States to engage in that espousal and to sell those claims to the government of Libya.

[00:11:55] Speaker 04:
We are challenging the domestic distribution mechanism that arose after the completion of the espousal.

[00:12:05] Speaker 03:
So your interest in that distribution is that you possess a legal cause of action.

[00:12:12] Speaker 03:
That is correct.

[00:12:13] Speaker 03:
Right?

[00:12:13] Speaker 03:
Yes.

[00:12:14] Speaker 03:
OK.

[00:12:14] Speaker 03:
So when Congress later amended the act, it terminated all proceedings that are being brought in US courts against Libya.

[00:12:23] Speaker 03:
That is correct.

[00:12:24] Speaker 03:
Why can't we view that?

[00:12:27] Speaker 03:
Or what's to prevent us from viewing that as having terminated your cause of action?

[00:12:33] Speaker 03:
And this doesn't have anything to do with the right to a distribution or the manner in which the funds were ultimately distributed.

[00:12:43] Speaker 03:
I'm just focusing again on the cause of action.

[00:12:47] Speaker 04:
You can't view them as separate actions.

[00:12:53] Speaker 04:
Congress terminated the right

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Congress gave you a cause of action and then it took it away subject to a successful espousal.

[00:13:06] Speaker 04:
That termination has a condition subsequent in it.

[00:13:12] Speaker 03:
So are you saying that Congress left you without a legal remedy?

[00:13:17] Speaker 04:
No, I'm saying that Congress left these plaintiffs with a legal remedy.

[00:13:23] Speaker 04:
The legal remedy was the espousal.

[00:13:25] Speaker 04:
In fact, the termination

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doesn't become effective until the executive certifies to Congress.

[00:13:34] Speaker 02:
Is it your view that the United States government could not have settled, could not have changed the jurisdictional rule regarding sovereign immunity of Libya, and thus failed to allow suits to go forward?

[00:13:46] Speaker 02:
And what if, at that time, in the course of the settlement, the president had decided that we will take this money only to compensate US nationals who lost

[00:13:56] Speaker 02:
property directly, not their insured companies, not corporations, and not foreigners of any type, are you suggesting that that would not be a proper act by the president and would amount to a taking?

[00:14:10] Speaker 04:
I'm sorry, when you say property, you mean wrongful death and personal injury claims of individuals?

[00:14:15] Speaker 02:
I mean any type of claim that a US national has as a result of having been harmed by the terrorist acts.

[00:14:26] Speaker 04:
Let me make sure I understand your fact pattern.

[00:14:28] Speaker 02:
My fact pattern is, could the president have excluded foreigners from receiving a part of the settlement as part of the agreement he reached with Libya when he decided to terminate all claims that were possible against Libya by removing them under 1605A from the state-sponsored list of terrorists?

[00:14:44] Speaker 02:
Could the president, did he have the authority to say, we're going to eliminate the ability to sue in US courts and the settlement will only go to US citizens?

[00:14:53] Speaker 04:
If the foreigner held a... Does the president have that power?

[00:14:57] Speaker 02:
Yes or no?

[00:14:57] Speaker 02:
He clearly does.

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You can't say no.

[00:14:59] Speaker 02:
Of course he's got that power.

[00:15:00] Speaker 02:
So then the next question is, is it a taking of the foreign government?

[00:15:04] Speaker 04:
The answer is yes, he could have done that, but he could not have done that without implicating a takings claim if the foreign national held a justiciable claim and controversy under

[00:15:19] Speaker 04:
In this case would be 28 USC 1605, either A7 or big A, which are the terrorism provisions in the Foreign Sovereign Immunities Act.

[00:15:31] Speaker 04:
Where Congress has given, has created subject matter jurisdiction and created a federal cause of action, which both US nationals and certain specially designated foreign nationals can avail themselves of.

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that subject matter jurisdiction and cause of action cannot be terminated without implicating a taking.

[00:15:57] Speaker 03:
And that's because that's your property interest, the cause of action.

[00:16:00] Speaker 03:
Because that's correct.

[00:16:02] Speaker 03:
But doesn't that property interest continue?

[00:16:04] Speaker 03:
You still have avenues by which to pursue your lawsuits?

[00:16:09] Speaker 03:
There are no avenues by which to pursue.

[00:16:12] Speaker 03:
I mean, to file a lawsuit, I don't know if they'll proceed.

[00:16:19] Speaker 04:
Now under rule 11, I can't bring another action.

[00:16:22] Speaker 04:
Not here, but in other countries.

[00:16:25] Speaker 04:
Well, first, the statute of limitations has long expired.

[00:16:28] Speaker 04:
We may not be able to create subject matter jurisdiction.

[00:16:31] Speaker 04:
The government talks about the continuous nationality rule and apply that to the two insurance companies here.

[00:16:38] Speaker 04:
If you're talking about New York Marine, which insured an Egyptian hull aircraft, if it went to Egypt and Egypt applied the same test that the US applied, there'd be no remedy.

[00:16:51] Speaker 02:
Similarly, if you- Egypt applied the same test.

[00:16:54] Speaker 02:
The test is not a legal test.

[00:16:56] Speaker 02:
That is a test that was formulated solely for purposes of distribution of the settlement arrangement.

[00:17:01] Speaker 02:
So Egypt does not presumably have a similar settlement arrangement with Libya.

[00:17:04] Speaker 02:
So that's not some legal doctrine that precludes a lawsuit in general.

[00:17:09] Speaker 02:
It's just simply the terms of the settlement.

[00:17:11] Speaker 02:
That's how Bush and the Commission ultimately decided the settlement proceeds would be distributed in that pattern.

[00:17:18] Speaker 02:
So why couldn't you bring a lawsuit in Egypt or anywhere else?

[00:17:21] Speaker 02:
You've got foreign companies that want to sue the country of Libya for hijacking planes.

[00:17:29] Speaker 02:
And none of these events occurred in the US.

[00:17:31] Speaker 02:
Your companies are not, in general, recognized as US companies, with one exception.

[00:17:35] Speaker 02:
One exception.

[00:17:37] Speaker 02:
And it's an act against a foreign government.

[00:17:39] Speaker 02:
Why does that have to be here in the United States?

[00:17:46] Speaker 02:
It just seems like Adrena's question is actually completely correct, which is, don't you have the right to bring lawsuits in foreign countries?

[00:17:52] Speaker 02:
And my question is, don't they actually belong there?

[00:17:55] Speaker 04:
There is no remedy in Egypt for US

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Marine, there is no remedy in the United Kingdom for aviation general.

[00:18:05] Speaker 04:
That simply isn't going to happen.

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This is the end of those claims.

[00:18:12] Speaker 04:
The answer to your question and why insurance companies and other property owners are allowed to proceed in terror victim claims is

[00:18:23] Speaker 04:
When Congress created that statute, it recognized that there are wrongful death claims that result from terrorist attacks.

[00:18:30] Speaker 04:
There are personal injury claims that result from terrorist attacks, and there are also massive property claims that result from terrorist attacks.

[00:18:40] Speaker 04:
What Congress wanted to do is to compensate property owners where the

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Victims, the intended victims of the attack were U.S.

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nationals.

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So if you are the property owner of an aircraft, and there is a terrorist attack on that aircraft targeting U.S.

[00:19:03] Speaker 04:
nationals, for example, in the incident involving the hull that U.S.

[00:19:08] Speaker 04:
Marine insured, every U.S.

[00:19:11] Speaker 04:
national on that airplane was, airplanes parked on the ground.

[00:19:15] Speaker 04:
It's not being allowed to take off.

[00:19:18] Speaker 02:
You're talking about what Congress wanted.

[00:19:21] Speaker 02:
Congress made the change here.

[00:19:22] Speaker 02:
This isn't like some of the other cases where it was done by executive order.

[00:19:26] Speaker 02:
Libya was removed from the statute by Congress.

[00:19:30] Speaker 02:
So isn't what Congress wanted most clearly articulated by the statute that they enacted, and in this case, the removal of Libya, i.e.

[00:19:37] Speaker 02:
giving Libya back sovereign immunity.

[00:19:39] Speaker 02:
Congress knew well when it did that that it was eliminating all of these claims.

[00:19:43] Speaker 02:
Why, why isn't that the best example of what Congress wanted?

[00:19:47] Speaker 04:
I'm sorry.

[00:19:48] Speaker 04:
Let me, I'm going to get to that.

[00:19:50] Speaker 04:
The US nationals on that aircraft.

[00:19:51] Speaker 02:
Well, you're out of time and you've used all your rebuttal time.

[00:19:54] Speaker 02:
So you should get to the answer to my question.

[00:19:56] Speaker 04:
I'm sorry.

[00:19:56] Speaker 04:
Excuse me.

[00:20:01] Speaker 04:
Congress wanted every claim against Libya terminated and it has the right to do that.

[00:20:09] Speaker 04:
We supported that.

[00:20:11] Speaker 04:
Congress wanted these claims and the executive wanted these claims espoused, and we supported that.

[00:20:18] Speaker 04:
In fact, I went to a DC bar luncheon with the legal advisor talking about this and complimenting the Department of State for the work it had done here.

[00:20:29] Speaker 04:
What we are complaining about is the post-espousal process.

[00:20:34] Speaker 04:
They took funds that should have been in part allocated to these insurers

[00:20:39] Speaker 04:
And they gave them entirely to other parties.

[00:20:43] Speaker 01:
But as part of Congress's scheme, they decided that the funds would go to certain parties.

[00:20:48] Speaker 01:
And the question came up, why couldn't they do that?

[00:20:51] Speaker 01:
Why would they?

[00:20:53] Speaker 04:
Congress left it to the discretion of the executive how those funds would be distributed.

[00:20:58] Speaker 02:
You have no property right in any portion of that settlement.

[00:21:01] Speaker 02:
That's what I wanted to arrange with you.

[00:21:04] Speaker 02:
and make sure we understood at the beginning of this.

[00:21:06] Speaker 02:
That's why I've asked you three questions about it.

[00:21:08] Speaker 02:
Your property interest is in a claim, a legal claim that you believe you had a right to see through to its termination.

[00:21:14] Speaker 02:
You have no property, no vested property right in some portion of that settlement agreement.

[00:21:20] Speaker 02:
So when you keep returning to the idea that our complaint is the post-espousal distribution, bells go off in my head because you've got no property right to the post-espousal distribution.

[00:21:31] Speaker 02:
Your property right is limited to your legal claim and seeing it through to conclusion if you have one at all.

[00:21:37] Speaker 04:
But if you take that to its logical conclusion, it means that any party who has agreed to have their claims espoused as part of a package of claims is at risk for having

[00:21:51] Speaker 04:
The proceeds of that espousal that is normally prorated over claims.

[00:21:56] Speaker 02:
Your problem is there are proceeds.

[00:21:57] Speaker 02:
Bush could have done this for free.

[00:21:59] Speaker 02:
Bush could have decided to avoid war with Libya.

[00:22:02] Speaker 02:
We need to terminate all of these claims and we need to restore Libya's sovereign immunity.

[00:22:07] Speaker 02:
And they could have done it and not required Libya to give a single penny.

[00:22:11] Speaker 02:
And then you'd have the same argument.

[00:22:15] Speaker 02:
We have a taking.

[00:22:16] Speaker 02:
We had a legal property right.

[00:22:17] Speaker 02:
Our property right was the lawsuit.

[00:22:19] Speaker 02:
You can't link your property right to how the government ultimately distributed the settlement agreement with the settlement proceeds from the commission.

[00:22:27] Speaker 02:
Because Bush could have done this for free.

[00:22:29] Speaker 02:
You don't have a vested property right in the settlement.

[00:22:31] Speaker 02:
Your property rights limited to your claim.

[00:22:33] Speaker 04:
The only time that a president has acted like that was in ACRI.

[00:22:39] Speaker 04:
And what happened in ACRI was takings claims were filed.

[00:22:42] Speaker 04:
They were stayed.

[00:22:43] Speaker 04:
There was an espousal and people were subsequently compensated.

[00:22:47] Speaker 04:
This is the only time.

[00:22:49] Speaker 04:
that we can ascertain where claims were espoused and proceeds of that espousal were used entirely to compensate third parties.

[00:23:03] Speaker 03:
I want to follow up to Judge Stoll's questions to you.

[00:23:08] Speaker 03:
So your main complaint is how the funds were distributed.

[00:23:13] Speaker 03:
You kind of want us to look aside

[00:23:16] Speaker 03:
with respect to what happened to your cause of action, et cetera.

[00:23:20] Speaker 03:
Let me finish.

[00:23:20] Speaker 03:
I'm almost done.

[00:23:21] Speaker 03:
So you want us to take a look at how the funds were distributed.

[00:23:26] Speaker 03:
And the fact that you didn't get any money, that was the taking.

[00:23:30] Speaker 03:
Now, the problem I have with that is that that seems to me to be a political question.

[00:23:37] Speaker 03:
And that would be one that I would not want to get into.

[00:23:41] Speaker 03:
We can't, the court cannot second guess the president or

[00:23:45] Speaker 03:
or undermine its policy objectives, contrary to separation of powers.

[00:23:56] Speaker 04:
I would answer that by directing you to the Supreme Court's decision in Lingual.

[00:24:01] Speaker 04:
The government had certain purposes that it wanted to apply those funds to, but it terminated these claims.

[00:24:10] Speaker 04:
It has left these people without a remedy.

[00:24:12] Speaker 04:
I would argue that they are entitled to a portion of the funds which were driven by the successful espousal.

[00:24:24] Speaker 04:
Otherwise, you wind up in a circumstance which is really untenable.

[00:24:30] Speaker 04:
Suppose I'm sitting with the Department of State next week organizing another espousal.

[00:24:38] Speaker 04:
If I don't know

[00:24:40] Speaker 04:
If my clients don't have a property interest in that espousal, how do I counsel a client to participate?

[00:24:47] Speaker 04:
I recommended to people that they participate in this program.

[00:24:50] Speaker 04:
How do I do that in the future?

[00:24:53] Speaker 04:
It creates an absolutely impossible circumstance and one that has never occurred in the United States before.

[00:25:01] Speaker 04:
The circumstance here is unforeseeable and unique.

[00:25:05] Speaker 01:
Can I move on to another aspect of the case?

[00:25:08] Speaker 01:
Sure, I'm sorry.

[00:25:08] Speaker 04:
I do apologize for running over.

[00:25:10] Speaker 01:
I wanted to ask you about some of the language in the court's opinion, which is talking about it's skeptical that plaintiffs wouldn't have been able to collect on the judgment and questioning whether there's a reasonable expectation here.

[00:25:22] Speaker 01:
And I just want your response to that.

[00:25:26] Speaker 04:
Yeah, I do a great deal of this work.

[00:25:30] Speaker 04:
People might say, I had some cases against Bashir Assad for the beheading of two US nationals.

[00:25:38] Speaker 04:
And some people were skeptical that I could ever enforce that judgment.

[00:25:43] Speaker 04:
I wasn't skeptical.

[00:25:45] Speaker 02:
All of this in the record, because the lower court decided a case.

[00:25:49] Speaker 02:
So you telling me about anecdotes from your personal experience, unless it's part of the record, it's not relevant to whether or not that decision by the lower court

[00:25:58] Speaker 02:
is supported such that we have to affirm it.

[00:26:01] Speaker 01:
And it seems we do have to admit that all litigation is, you know, there's some, it's hard to have a reasonable expectation of success in litigation.

[00:26:10] Speaker 01:
Litigation is, I mean, it's a situation where you could win, you could lose.

[00:26:18] Speaker 01:
There are lots of things happen.

[00:26:20] Speaker 01:
You know, the cases were not that far along at the time that they ended and terminated.

[00:26:27] Speaker 01:
So I just, I thought that that was an interesting point by the court below.

[00:26:31] Speaker 01:
It seems like it wouldn't be difficult to have a reasonable expectation of success in a litigation and to expect that you would collect money, even if you were successful against the government of Libya.

[00:26:41] Speaker 04:
I don't want to run a foul of Judge Moore's head.

[00:26:45] Speaker 01:
If you've got something in the record to say in response to it, it's just that it doesn't help as much if you're going to stand here and talk about, you know, different cases.

[00:26:54] Speaker 01:
But if you have something in the record, you could direct us to.

[00:26:56] Speaker 01:
or a legal argument, that would be helpful.

[00:27:01] Speaker 04:
This is a well-established body of law.

[00:27:03] Speaker 04:
There are many cases in this body of law where judgments have been won and successfully enforced.

[00:27:10] Speaker 04:
I've done a number of them.

[00:27:11] Speaker 04:
Again, I want to be careful about Judge Moore's admonition.

[00:27:15] Speaker 04:
But this is now a fairly regularized body of law.

[00:27:20] Speaker 04:
Judgments have been successfully brought against or settled

[00:27:26] Speaker 04:
either successfully brought or enforced or settled against Iran, Libya, Syria.

[00:27:33] Speaker 04:
It's a regular, it's a regular, certainly it's a regular part of my practice.

[00:27:39] Speaker 04:
I'm not, I was never troubled by the enforceability question.

[00:27:42] Speaker 02:
Mr. Perlis, we need to hear from opposing counsel, Mr. Preheim or Ms.

[00:27:47] Speaker 02:
Preheim.

[00:27:47] Speaker 04:
I recognize that I've run well over time.

[00:27:49] Speaker 04:
May I reserve two minutes for rebuttal, Your Honor?

[00:27:52] Speaker 02:
Yes.

[00:27:53] Speaker 04:
Thank you.

[00:28:03] Speaker 05:
Good morning, and may it please the court.

[00:28:05] Speaker 05:
The court should affirm the trial court's judgment.

[00:28:07] Speaker 05:
In addition to the fact that we respectfully submit this case is not justiciable, aviation doesn't possess a cognizable property interest here.

[00:28:14] Speaker 05:
And even if it did, no taking occurred.

[00:28:16] Speaker 03:
Why is there a subrogated right cognizable?

[00:28:23] Speaker 05:
Well, first, what they seem to be focusing here on is the apportionment of the settlement proceeds.

[00:28:29] Speaker 05:
They don't have any property interest in the settlement process.

[00:28:32] Speaker 03:
I'm not talking about the proceeds.

[00:28:34] Speaker 03:
Right.

[00:28:34] Speaker 05:
With respect to their argument regarding the contract, here keep in mind that they could only bring these legal claims under 1605 capital A for a short period of time, and only because of that federal statute.

[00:28:45] Speaker 05:
That really puts this case within the ambit of the Adams case, where the claim was one of the statutory ones.

[00:28:52] Speaker 03:
What was actually controversial about the timing of the effective date of the insurance policies and the date of occurrence

[00:29:00] Speaker 03:
But it's a case that in all the insurance contracts, the subrogated right doesn't accrue until the company pays out on the policy.

[00:29:12] Speaker 03:
So in this case, an initiatives company never knows in what context that right can arise in.

[00:29:21] Speaker 03:
It could be an auto accident, or in this case it was the bombing of an aircraft, and that's when

[00:29:28] Speaker 03:
the subrogated, as soon as they paid out, they have an interest, they now stand in the shoes, that's what subrogation means, they now stand in the shoes of the insured.

[00:29:41] Speaker 03:
If the insured has a cause of action or a right to the proceed, then why doesn't the company?

[00:29:46] Speaker 05:
Well, not all, this court held in Adams that not all legal claims are cognizable property for takings purposes.

[00:29:53] Speaker 05:
The claims actually have to be seeking to protect real property, physical property, or intellectual property.

[00:29:59] Speaker 05:
Their claims here were not seeking to protect any of those three.

[00:30:02] Speaker 05:
Rather, they were, in essence, tort claims based entirely upon a federal statute.

[00:30:07] Speaker 03:
The whole company was.

[00:30:08] Speaker 03:
They insured the hull of the airplane.

[00:30:10] Speaker 05:
Right.

[00:30:11] Speaker 05:
But the hull had already been destroyed.

[00:30:12] Speaker 05:
They weren't seeking to protect the hull at that time.

[00:30:15] Speaker 05:
It had already been destroyed.

[00:30:16] Speaker 05:
They were seeking to recover losses they incurred as a result of the destruction of the hull.

[00:30:20] Speaker 05:
But in any event.

[00:30:21] Speaker 02:
How is that not a legally recognizable property interest?

[00:30:24] Speaker 02:
Well, first and foremost.

[00:30:25] Speaker 02:
It's destruction of actual real property.

[00:30:28] Speaker 05:
Well, because they weren't seeking to protect that property.

[00:30:31] Speaker 05:
It had already been destroyed.

[00:30:33] Speaker 02:
The takings is always about that, right?

[00:30:34] Speaker 02:
A taking isn't affirmatively seeking to protect property.

[00:30:37] Speaker 02:
It's to recover loss when the property is taken.

[00:30:40] Speaker 05:
We're talking about it within the context of legal claims here.

[00:30:44] Speaker 05:
And I think the important point is they could only bring their legal claim because of a federal statute.

[00:30:48] Speaker 05:
That's very similar to Adams, where it was an administrative claim that could only be brought because of a federal statute.

[00:30:54] Speaker 02:
I mean the jurisdictional statute that we love Libya's sovereign immunity.

[00:30:58] Speaker 02:
That's the federal statute you're talking about.

[00:31:00] Speaker 05:
Right, exactly.

[00:31:01] Speaker 05:
1605 capital A. And that only existed for approximately six months with respect to Libya.

[00:31:07] Speaker 05:
They don't have any property interest in jurisdictional rules.

[00:31:10] Speaker 05:
They certainly don't have any property interest in rules of sovereign immunity remaining static.

[00:31:14] Speaker 05:
What about the cause of action?

[00:31:17] Speaker 05:
The cause of action itself?

[00:31:18] Speaker 05:
Well, but the cause of action was affected because of the alteration of a jurisdictional rule.

[00:31:22] Speaker 03:
Great.

[00:31:23] Speaker 03:
That created a cause of action, and you're dealing with a subrogated claim.

[00:31:27] Speaker 03:
So why doesn't that create a property interest?

[00:31:31] Speaker 05:
Well, because it's very similar to Adams.

[00:31:33] Speaker 05:
It's a statutory-based claim.

[00:31:35] Speaker 05:
The right is based entirely upon a federal statute.

[00:31:37] Speaker 05:
There's no dispute that they couldn't proceed with their claims against Libya but for 1605 capital A. And that puts it within the ambit of Adams, we respectfully submit.

[00:31:48] Speaker 05:
Moreover, the bundle of sticks in their legal claims

[00:31:51] Speaker 05:
doesn't include the unfettered right to sue foreign countries.

[00:31:55] Speaker 05:
That's what this court said in Abraham Urey.

[00:31:57] Speaker 05:
And the Supreme Court in Dames and Moore noted that, in that case, the attachment of foreign states' assets were not property because they were subordinate to the president's power over those assets.

[00:32:08] Speaker 02:
I think we have your property interest argument.

[00:32:10] Speaker 02:
Would you move on to defending the other bases, the bases upon which the lower court actually decided in your favor?

[00:32:18] Speaker 05:
Certainly.

[00:32:18] Speaker 05:
With respect to whether or not a taking occurred,

[00:32:21] Speaker 05:
We submit that the lack of any reasonable investment back to expectation here in and of itself is grounds for denying the claim.

[00:32:29] Speaker 05:
There are two reasons why aviation doesn't possess a reasonable investment back to expectation.

[00:32:35] Speaker 05:
The first is that rules of sovereign immunity can be changed at any time.

[00:32:39] Speaker 05:
In fact, here we know that they did change a number of times over a period of years.

[00:32:43] Speaker 05:
And the Supreme Court in Beatty made that point.

[00:32:45] Speaker 05:
The parties can't have any expectation rules of sovereign immunity remaining static over time.

[00:32:50] Speaker 05:
Now, the second reason why they don't have a reasonable investment back to expectation is a more general proposition.

[00:32:55] Speaker 05:
And that is, we know that the president can settle claims and has done so since, as the Supreme Court noted in James and Moore, since at least 1799.

[00:33:03] Speaker 05:
So effectively, since the founding of our country, the president has settled claims.

[00:33:08] Speaker 05:
So for that reason, they don't have any reasonable investment back to expectation.

[00:33:11] Speaker 02:
Now, to avoid that result, they seem... But you talk about the president can settle claims.

[00:33:16] Speaker 02:
Usually when a claim is settled, each side gets something.

[00:33:21] Speaker 02:
That's the nature of settlement.

[00:33:22] Speaker 02:
Usually settlement is not completely one-sided.

[00:33:25] Speaker 02:
That's a tough thing for a lawyer to pitch to his client as a win.

[00:33:30] Speaker 02:
Good news, we settled.

[00:33:31] Speaker 02:
You got nothing.

[00:33:32] Speaker 05:
Well, a couple of points.

[00:33:34] Speaker 05:
First, in the Bell case,

[00:33:37] Speaker 05:
Although the US hostages were released as a result of that agreement, they received nothing.

[00:33:43] Speaker 05:
No compensation.

[00:33:43] Speaker 02:
Nothing.

[00:33:44] Speaker 02:
They were released.

[00:33:45] Speaker 02:
They received no compensation.

[00:33:46] Speaker 02:
My favorite line in that opinion is, would you have hesitated for one one millionth of a second if while you were being held hostage, they said, the president can let you go free now, but you've got to give up your right to a future compensation lawsuit?

[00:34:01] Speaker 02:
Or would you have rather stayed in place so he negotiated more, a better settlement?

[00:34:05] Speaker 02:
I mean, you know, that's a big get.

[00:34:08] Speaker 05:
We got you free.

[00:34:09] Speaker 05:
These people don't get their lives back.

[00:34:12] Speaker 05:
Obviously, that was obviously a very significant benefit that they received.

[00:34:16] Speaker 05:
But we respectfully submit that that benefit is very different from actually being able to obtain compensation from Iran for being unlawfully held.

[00:34:23] Speaker 05:
And they received no compensation as a result of the settlement.

[00:34:25] Speaker 05:
And this court said nonetheless,

[00:34:27] Speaker 05:
and these were US citizens, nonetheless, that that is not a taking.

[00:34:30] Speaker 02:
No, because they said, the court clearly, throughout, based its decision, it's not a taking on the fact that you definitely got something, you got something big.

[00:34:37] Speaker 02:
You got release.

[00:34:38] Speaker 05:
Right, but our point is that there are instances.

[00:34:40] Speaker 02:
There was compensation.

[00:34:42] Speaker 02:
There was a settlement.

[00:34:43] Speaker 02:
We each got something.

[00:34:45] Speaker 05:
Well, they certainly benefited, but there certainly wasn't monetary compensation.

[00:34:48] Speaker 05:
But we have other cases, Shanghai Power, I believe, for example, where the plaintiff in that case received a small fraction of the value

[00:34:56] Speaker 05:
Uh, the, the value of nothing.

[00:34:58] Speaker 02:
There's a difference.

[00:35:00] Speaker 02:
That's what settlement is, right?

[00:35:01] Speaker 02:
Settlement is you give away, you don't get everything you want, but you usually get something.

[00:35:05] Speaker 02:
They got something.

[00:35:06] Speaker 02:
They didn't get everything they wanted here.

[00:35:08] Speaker 02:
They got nothing.

[00:35:08] Speaker 05:
As we pointed out, they certainly have the right to seek relief to their home country.

[00:35:12] Speaker 05:
These are British companies with one exception.

[00:35:14] Speaker 05:
There's nothing that prevents them from going to Britain, asking that Britain enter into a settlement, uh, and include, include them in it.

[00:35:21] Speaker 02:
All of the U S cases that you've cited, they got something.

[00:35:25] Speaker 02:
They may not have gotten money when they got their freedom.

[00:35:27] Speaker 02:
They might not have got as much money as they wanted when they got something.

[00:35:30] Speaker 02:
But in every case I could find that was related to this, the settlement, they got something.

[00:35:36] Speaker 05:
They didn't get zilch.

[00:35:38] Speaker 05:
They certainly did get something.

[00:35:39] Speaker 05:
But we respectfully submit that that shouldn't be the dispositive factor, whether or not you can bring a takings claim just because you received something.

[00:35:46] Speaker 05:
In, for example, the Shanghai case, they received a small fraction of the value of what they asserted was the value of their claim.

[00:35:53] Speaker 05:
So if we had paid aviation a dollar, would that mean that they can no longer bring a takings claim?

[00:35:58] Speaker 02:
No, it just might mean that that is reasonable compensation for what they lost, right?

[00:36:03] Speaker 02:
I mean, that's what a takings claim is about, is ensuring, were you adequately compensated for the burden you bore at the behest of the public?

[00:36:11] Speaker 05:
And I think the hostages would argue in Belk that they weren't adequately compensated.

[00:36:15] Speaker 05:
Merely by being released, that's different from actually obtaining compensation from Iran for the harm that they incurred.

[00:36:22] Speaker 05:
Now, in order to avoid the lack of any reasonable investment-backed expectation, aviation focuses on the claims process itself.

[00:36:30] Speaker 05:
It says we should have received compensation from that process.

[00:36:34] Speaker 05:
Of course, this court in Belk said that the lack of an alternative forum alone does not constitute a taken.

[00:36:40] Speaker 02:
Can we go back?

[00:36:41] Speaker 02:
Can we go back?

[00:36:43] Speaker 02:
You said there were two reasons why this case can be resolved entirely on reasonable investment-backed expectations.

[00:36:49] Speaker 02:
And your first one was?

[00:36:51] Speaker 02:
The sovereign immunity rules are inherently uncertain.

[00:36:55] Speaker 02:
I mean, I find that difficult.

[00:37:00] Speaker 02:
Just because rules are uncertain, you should.

[00:37:03] Speaker 02:
And in situations where every case that has ever been written goes to great pains to say these people got something, they may not have gotten as much as they wanted, but they got something, is it really unreasonable for them to think that their lawsuit would result in something?

[00:37:19] Speaker 05:
Well, I think I'd also point out that I believe in all those cases you were talking about US nationals who obtained something as a result of the Southern.

[00:37:27] Speaker 02:
Yeah, the Supreme Court said in pink, though, expressly, to be sure, aliens as well as citizens are entitled to the protection of the Fifth Amendment.

[00:37:34] Speaker 05:
Right, absolutely.

[00:37:35] Speaker 05:
And the Supreme Court also said in that case that the United States doesn't have to act as a collection agent for foreign nationals.

[00:37:42] Speaker 05:
And that's effectively what they're seeking here.

[00:37:44] Speaker 02:
It doesn't have to act as a collection agent, but when it does,

[00:37:47] Speaker 02:
effectively settle their suit?

[00:37:52] Speaker 05:
Well, but what they're saying is that if you give us the right to sue Libya, even for here, a six-month period of time, and as foreign companies, you, the United States, can't settle our claims without either including us in the settlement process, or paying us money, or affecting a taking.

[00:38:09] Speaker 05:
Now, that's an extraordinary proposition.

[00:38:11] Speaker 05:
When we talk about fairness and justice,

[00:38:13] Speaker 05:
Should the United States taxpayer be held liable, be held responsible for Libya's acts of terror?

[00:38:18] Speaker 05:
That's effectively what aviation seeks here.

[00:38:24] Speaker 03:
No, I think they're just looking for a piece of the pie.

[00:38:27] Speaker 03:
Well, right.

[00:38:28] Speaker 03:
And they have a subrogation claim.

[00:38:34] Speaker 03:
And an insured has been injured or killed.

[00:38:36] Speaker 03:
They now stand in the shoes of the insured.

[00:38:40] Speaker 03:
And they're saying, where's my

[00:38:43] Speaker 03:
I paid out, they paid out to the victims under the policy.

[00:38:50] Speaker 03:
And by operation of law, they stand in the shoes of the insured.

[00:38:53] Speaker 03:
And they're saying, you settled this case without us.

[00:38:56] Speaker 03:
You didn't give us anything.

[00:38:58] Speaker 03:
But yet we stand in the shoes of the insured.

[00:39:01] Speaker 05:
Right.

[00:39:02] Speaker 05:
But when we talk about claims against foreign countries.

[00:39:06] Speaker 05:
Parties are put on notice.

[00:39:07] Speaker 05:
Parties know that if they obtain a claim against a foreign country, that claim may be settled and the settlement may not be in their best interest.

[00:39:14] Speaker 05:
It's entirely fortuitous who may benefit and who may be harmed as a result of that settlement.

[00:39:19] Speaker 05:
And there's no requirement the United States include foreign companies in any settlement and provide payment for those companies.

[00:39:26] Speaker 05:
There's nothing that prevents aviation from going to Britain, their home country, and seeking relief from Britain through a similar settlement process.

[00:39:38] Speaker 02:
You focus entirely on investment-backed expectations.

[00:39:42] Speaker 02:
Do you want to speak to any of the other factors, the pencentral factors, character of the government action?

[00:39:48] Speaker 02:
Because I think that the Court of Federal Claims really decided in the government's favor on each factor.

[00:39:53] Speaker 02:
But I don't want you to hinge your entire argument on only one.

[00:39:56] Speaker 05:
Right.

[00:39:57] Speaker 05:
We respectfully submit that the other two factors also weigh heavily in favor of the government.

[00:40:00] Speaker 05:
When you talk about the character of the government action,

[00:40:02] Speaker 05:
There's no dispute that the president has long-standing authority to settle claims like this.

[00:40:07] Speaker 03:
If we go as far as Allied wants us to in this case and actually look at whether property interest was taken by not giving them any compensation, if we go that far, are we dealing with a political question at that point?

[00:40:25] Speaker 05:
Yes, I think so.

[00:40:26] Speaker 05:
And that's why we submit the case is not justiciable.

[00:40:29] Speaker 05:
Really what they're challenging is the distribution of

[00:40:32] Speaker 05:
of funds here.

[00:40:33] Speaker 05:
And they are in fact challenging the settlement as well.

[00:40:35] Speaker 05:
I mean, they're saying either include us in the settlement or don't include us and let us continue with our lawsuit.

[00:40:42] Speaker 05:
And that's a challenge directly to the settlement, the terms of the settlement agreement.

[00:40:46] Speaker 05:
Or provide us, the settlement should have provided us with some sort of funds.

[00:40:52] Speaker 05:
And there are significant implications, not just for this case, but for future situations.

[00:40:58] Speaker 05:
Again, if the United States has to pay for foreign entities that have legal claims, even if they have claims for a short period of time, if we have to include them in settlements, that may mean that in future situations, negotiations with foreign countries, the United States may not be able to re-institute relations.

[00:41:13] Speaker 05:
It may be too costly to do so, for example.

[00:41:17] Speaker 05:
So there are significant implications, not just within the confines of this case.

[00:41:21] Speaker 03:
I have a problem.

[00:41:22] Speaker 03:
Why is it that the government at that point can't simply say, you know, you're drawing up a list.

[00:41:28] Speaker 03:
Part of the list is this is what the insurance companies have paid out.

[00:41:33] Speaker 03:
Surely they're going to seek to move on the subrogated interest.

[00:41:37] Speaker 03:
This is our potential liability here.

[00:41:39] Speaker 03:
We need to include this in the negotiations.

[00:41:43] Speaker 05:
Respectfully, there are lots of factors that go into negotiations when you're talking about foreign relations.

[00:41:51] Speaker 03:
They represent the subrogated interest represents 5% of all claims.

[00:41:56] Speaker 03:
If it's a dollar, then they get $0.05.

[00:42:01] Speaker 03:
They didn't get anything.

[00:42:03] Speaker 05:
That's certainly one way you could do it.

[00:42:05] Speaker 05:
But one could also say that we have a set amount of money that we can provide as part of the settlement.

[00:42:13] Speaker 05:
And we have to decide who that money is going to go to.

[00:42:16] Speaker 05:
And the U.S.

[00:42:17] Speaker 03:
national should take... And if you say we're not going to give the subrogated interest any money, why isn't that a taking?

[00:42:24] Speaker 05:
And they have a legal claim.

[00:42:25] Speaker 05:
Well, they have no right to the settlement proceeds themselves.

[00:42:29] Speaker 05:
And even with respect to the legal claim, again, it was impacted through the alteration of a jurisdiction rule of sovereign immunity.

[00:42:36] Speaker 05:
They don't have any property interest in rules of sovereign immunity remaining static.

[00:42:41] Speaker 01:
Going back to the Penn Central factors, should those all be considered by the court below?

[00:42:47] Speaker 01:
Is it appropriate just to rely on reasonable investment-backed expectation alone, or do all the factors have to be balanced and considered?

[00:42:55] Speaker 05:
Well, we do believe that all the factors weigh in the government's favor here, but certainly, yes, the court can decide just based on reasonable investment-backed expectations alone.

[00:43:04] Speaker 05:
In the Monsanto case, the Supreme Court said that the

[00:43:07] Speaker 05:
the weight of that factor alone was so dispositive that it resolved the case on that factor alone.

[00:43:14] Speaker 05:
So yes, a court can look to just that factor.

[00:43:18] Speaker 05:
But with respect to the character of the government action, this court in Roseacre made clear that you still do consider the public purpose of the action.

[00:43:27] Speaker 05:
You don't simply consider how the government action has affected the plaintiffs.

[00:43:32] Speaker 05:
Now, that certainly is part of the inquiry.

[00:43:34] Speaker 05:
But as we pointed out, they weren't singled out here.

[00:43:36] Speaker 05:
Aviation wasn't singled out.

[00:43:38] Speaker 05:
It was treated just like any other.

[00:43:39] Speaker 05:
They were treated just like any other foreign insurance company.

[00:43:43] Speaker 05:
The Libya Claims Resolution Act applies to everyone.

[00:43:45] Speaker 05:
The commission's rules apply to everyone.

[00:43:47] Speaker 02:
You're treated just like any other foreign insurance company.

[00:43:50] Speaker 02:
You're not singled out.

[00:43:51] Speaker 02:
I'm going to treat you exactly like a government lawyer wearing glasses and a blue tie and a white shirt.

[00:43:57] Speaker 02:
You do not see the problem with that argument.

[00:44:01] Speaker 02:
They weren't singled out.

[00:44:02] Speaker 02:
We're just going to exclude all people of a certain color.

[00:44:05] Speaker 02:
How does that not make you singled out?

[00:44:07] Speaker 05:
It sounds needaphobic to me.

[00:44:09] Speaker 05:
In Rose Acre, it was egg producers.

[00:44:13] Speaker 05:
And even then, I believe it wasn't all egg producers.

[00:44:15] Speaker 05:
But this court said, you're not being singled out because it applies to most egg producers.

[00:44:19] Speaker 05:
Well, here, the Libya Claims Resolution Act applied to everyone.

[00:44:23] Speaker 05:
No one could bring claims against Libya once that act had been passed by Congress and the certification had been made.

[00:44:28] Speaker 02:
It applied to most egg producers.

[00:44:30] Speaker 02:
I must be honest, I don't remember the Rose Acre case really well.

[00:44:35] Speaker 02:
But I do remember that that case had something to do with the bacteria on the outside of the eggshell.

[00:44:40] Speaker 02:
So if applied to all egg producers, it seems like that applies to everyone in the relevant community who would be affected by bacteria on the outside of the eggshell.

[00:44:49] Speaker 02:
I mean, of course you wouldn't apply that to meat producers.

[00:44:51] Speaker 02:
It's not the same issue here.

[00:44:53] Speaker 02:
Tell me, how would the government be arguing this case if this were not foreign companies who were the insureds?

[00:45:02] Speaker 02:
but the families of the hijacked victims who were US nationals who were killed.

[00:45:07] Speaker 02:
How would your argument, would they have a takings claim here if the government had eliminated their right to sue Libya?

[00:45:16] Speaker 02:
If those individuals brought suits within the six month period of time, and then the president settled that case, eliminating their claims, would those individual US citizens, the families of the deceased hijacked victims,

[00:45:30] Speaker 02:
have a takings claim.

[00:45:32] Speaker 05:
No, they wouldn't.

[00:45:32] Speaker 05:
For the same reason that the US nationals held hostage by Iran didn't have a takings claim.

[00:45:39] Speaker 02:
Wait a minute, then.

[00:45:40] Speaker 02:
So your whole argument about these are foreign companies trying to get the US to pay for Libya's acts of terrorism was really just rhetoric to invoke emotion or xenophobia.

[00:45:51] Speaker 02:
Because if you're saying the real issue has nothing to do with their status as foreign companies,

[00:45:58] Speaker 02:
but has to do with there isn't a taking here.

[00:46:01] Speaker 02:
And even if they were the US individuals, not the foreign company, they still wouldn't be entitled to compensation.

[00:46:07] Speaker 05:
Certainly the fact that they're foreign companies is relevant here.

[00:46:11] Speaker 05:
But that doesn't mean that US nationals have an unfettered right to sue Libya as well.

[00:46:16] Speaker 05:
For the same reasons with respect to- They did for six months.

[00:46:20] Speaker 02:
But for six months, they did have an unfettered right to sue Libya.

[00:46:22] Speaker 02:
And they acted within that time.

[00:46:25] Speaker 02:
And did everything the statute required them to do.

[00:46:28] Speaker 05:
But that doesn't mean they have a property interest in rules of sovereign immunity.

[00:46:31] Speaker 05:
And it doesn't mean that they have a reasonable expectation in being able to pursue that claim against Libya.

[00:46:36] Speaker 05:
Because they know that legal claims may be settled by the United States, may be espoused by the United States at any time, depending on our relationship with a foreign nation.

[00:46:46] Speaker 05:
And who benefits and who doesn't benefit may be entirely fortuitous.

[00:46:51] Speaker 02:
But just so we're clear, it wouldn't have mattered.

[00:46:54] Speaker 02:
The government's position would be identical whether these were US individuals as opposed to foreign corporations with regard to whether or not there's a compensable taking.

[00:47:03] Speaker 05:
I wouldn't say our position would be.

[00:47:05] Speaker 05:
Our arguments would not be identical.

[00:47:06] Speaker 05:
But we would be saying, yes, I think as a general matter, no taking would occur in that circumstance.

[00:47:13] Speaker 02:
OK.

[00:47:13] Speaker 02:
Is there anything further?

[00:47:16] Speaker 05:
Thank you.

[00:47:16] Speaker 05:
Thank you.

[00:47:18] Speaker 02:
Two minutes of rebuttal time.

[00:47:20] Speaker 04:
Thank you.

[00:47:23] Speaker 04:
And I apologize for running over.

[00:47:24] Speaker 04:
It's a fascinating case.

[00:47:29] Speaker 04:
Very quickly, in answer to Judge Stoll's question about whether these cases could actually be brought to maturity, one and enforced, I direct you to the record.

[00:47:41] Speaker 04:
At document 37, page 32, the first two lines of that page and note 7 at the bottom of the page

[00:47:49] Speaker 00:
Did you say document 37, page 2?

[00:47:51] Speaker 00:
Do you have a JA reference site for me?

[00:47:54] Speaker 04:
It is our reply brief.

[00:47:56] Speaker 04:
I'm sorry.

[00:47:57] Speaker 04:
My documents are printed as document 37.

[00:48:01] Speaker 04:
It's the reply brief of the appellants above at page 32.

[00:48:06] Speaker 01:
Just so you know, how our documents are organized is by JA number in the joint appendix.

[00:48:12] Speaker 01:
That's usually how we refer to things.

[00:48:14] Speaker 04:
I'll get the site to the clerk's office afterwards to make sure we're talking about the same page and notation.

[00:48:23] Speaker 04:
You know, Brace talks about investment-backed expectations and looking at investment-backed expectations throughout the history of the prosecution.

[00:48:35] Speaker 04:
In this case, what would be the history of the prosecution of these claims?

[00:48:40] Speaker 04:
At no time was the

[00:48:43] Speaker 04:
conduct of the government post espousal, their decision to use all of the funds to compensate other parties, including $209 million going to parties who hadn't even filed claims at the time of the espousal.

[00:49:03] Speaker 04:
I promised I would keep this very short.

[00:49:04] Speaker 04:
I'm going to sit down.

[00:49:05] Speaker 04:
I would say this has been a very cooperatively litigated case with

[00:49:11] Speaker 04:
Mr. Preheim's office, where we do agree is this case is very important.

[00:49:15] Speaker 04:
It is going to affect the way espousals are conducted going forward, irrespective of who wins and who loses.

[00:49:28] Speaker 04:
I would simply close by saying what happened here is not foreseeable.

[00:49:33] Speaker 04:
It is unique in US espousal law.

[00:49:39] Speaker 04:
If you decide to affirm Judge Wheeler's decision below, you are going to have to do it by making new law.

[00:49:45] Speaker 04:
This has never happened before.

[00:49:47] Speaker 04:
It has never been addressed in the case, either before the Supreme Court or before this court.

[00:49:53] Speaker 04:
Thank you.

[00:49:54] Speaker 02:
I thank both counsel for their argument.