[00:00:03] Speaker 03:
The next case for argument is 17-166-7, Olimon-Nistiano versus United States.

[00:00:58] Speaker 03:
Good morning.

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

[00:01:01] Speaker 03:
Jesse Conin for the Plaintiff Appellants.

[00:01:05] Speaker 03:
This case presents two weighty issues.

[00:01:08] Speaker 03:
First, are common law claims cognizable property interests under the Takings Clause?

[00:01:13] Speaker 03:
And second, whether the government's appropriation of those claims is a per se taking under a warrant?

[00:01:18] Speaker 03:
Sorry.

[00:01:20] Speaker 03:
Starting with the first point, the trial court got that issue exactly right.

[00:01:23] Speaker 03:
Claims are cognizable property interests.

[00:01:26] Speaker 03:
The Federal Circuit has reached the merits of this issue twice in the last 25 years in Abraham, Uri, and Alliance of Descendants, and each time it's held that claims are recognizable.

[00:01:35] Speaker 02:
All claims?

[00:01:38] Speaker 03:
Common law claims, claims for damages.

[00:01:41] Speaker 02:
Claims that have an underlying legally recognized interest?

[00:01:47] Speaker 03:
That test comes from the Adams case, and in that case, the core

[00:01:55] Speaker 03:
taking at issue in Adams was entitlement to overtime compensation.

[00:02:00] Speaker 03:
And under a long line of cases, the court in Adams said that entitlements are not cognizable under the takings clause, entitlements like that.

[00:02:08] Speaker 03:
And the plaintiffs there also maintained a derivative claim that the government, by changing the statute of limitations, also took their claim for overtime compensation.

[00:02:17] Speaker 03:
And the court said that, well, if the underlying thing you're trying to get is not cognizable, then clearly

[00:02:25] Speaker 03:
the derivative claim can't plausibly be a cognizable property interest.

[00:02:28] Speaker 03:
It can't be more than the thing it's trying to get.

[00:02:31] Speaker 02:
What's the underlying cognizable claim here?

[00:02:34] Speaker 02:
It's a wrongful death claim?

[00:02:35] Speaker 03:
It's a claim for a wrongful death and emotional distress.

[00:02:39] Speaker 03:
Torque claims.

[00:02:41] Speaker 03:
Torque claims, correct.

[00:02:42] Speaker 03:
Yes.

[00:02:43] Speaker 01:
And the issue seems to be- Are there other circuits who have visited the question of whether or not an underlying torque claim

[00:02:54] Speaker 01:
supports of taking this claim have concluded that it's not unless the underlying tort claim is final, correct?

[00:03:02] Speaker 01:
That's right.

[00:03:02] Speaker 01:
A big body of law, I mean.

[00:03:04] Speaker 01:
There is.

[00:03:04] Speaker 01:
There's a huge body of law.

[00:03:06] Speaker 01:
In fact, there isn't any law going the other way, right?

[00:03:09] Speaker 03:
Yeah.

[00:03:09] Speaker 03:
On that particular issue.

[00:03:11] Speaker 03:
So there's a huge body of law on that.

[00:03:13] Speaker 03:
And we think that these courts generally get to the right ultimate result in those cases, that there's no taking, but for the wrong reason, holding that claims are not cognizable.

[00:03:22] Speaker 03:
In each of these cases, a law was passed that impaired or precluded a claim.

[00:03:28] Speaker 03:
One example might be the federal law that immunized gun manufacturers from liability.

[00:03:33] Speaker 03:
Those claims never actually passed to the government.

[00:03:35] Speaker 03:
They were just impaired and precluded.

[00:03:36] Speaker 03:
And we think that driving those decisions was the idea that the government must be able to interfere and regulate liabilities and lawsuits like that without having to pay everybody who's affected.

[00:03:49] Speaker 03:
But to get to that result, the courts all held that claims were not recognizable.

[00:03:53] Speaker 03:
And in doing so, they drew an artificial and unwarranted distinction between claims and other forms of protected intangible property.

[00:04:01] Speaker 03:
They essentially abandoned the Supreme Court's precedent on how to determine when intangible property is protected.

[00:04:07] Speaker 03:
And you get that from Ruckelshaus v. Monsanto.

[00:04:11] Speaker 03:
And in that case, the Supreme Court made clear that the Fifth Amendment's reference to property in the Takings Clause

[00:04:19] Speaker 03:
It doesn't refer to the actual object or thing.

[00:04:21] Speaker 03:
It refers to the cluster of rights that relate to the object, essentially the right to exclude, possess, use, and dispose.

[00:04:30] Speaker 03:
So for instance, your car.

[00:04:31] Speaker 03:
It's your right to exclude others, drive your car, possess it, and dispose of it that makes it property under the Takings Clause.

[00:04:38] Speaker 03:
That's what it really means to own something from a Fifth Amendment perspective.

[00:04:42] Speaker 03:
And when viewed through that lens, claims are certainly protected property.

[00:04:46] Speaker 03:
They only belong to you.

[00:04:47] Speaker 03:
That's the right to exclude.

[00:04:49] Speaker 03:
and you could transfer, dispose, and sell them.

[00:04:51] Speaker 03:
There's a whole industry now around the buying, selling, and transferring of claims.

[00:04:58] Speaker 03:
So these sister circuits essentially ignored those rules.

[00:05:02] Speaker 03:
And we think there's a very doctrinally simple and consistent way to get to the result of note taken in those cases while remaining faithful to the Supreme Court's precedent on how to identify recognizable property interest.

[00:05:14] Speaker 03:
And here it is.

[00:05:15] Speaker 03:
These cases all present regulatory takings.

[00:05:18] Speaker 03:
Claims were not impaired.

[00:05:20] Speaker 03:
They were simply appropriated.

[00:05:21] Speaker 03:
I mean, they were not impaired.

[00:05:23] Speaker 03:
Claims were not appropriated.

[00:05:24] Speaker 03:
They were simply impaired.

[00:05:27] Speaker 03:
And the Supreme Court recently explained in Horn that personal property such as a claim can be subject to virtually limitless regulation without running afoul of the takings clause.

[00:05:39] Speaker 03:
And that's certainly the case with a claim where the government controls things like jurisdiction, forum, statute of limitations, things like that.

[00:05:46] Speaker 03:
It can regulate claims.

[00:05:48] Speaker 03:
in all kinds of different ways.

[00:05:50] Speaker 03:
So we think the proper way to dispose of a takings dispute arising out of the government's interference or preclusion of a claim is to do so within the regulatory takings paradigm, essentially what this court just did last month in aviation.

[00:06:05] Speaker 03:
We don't think the Federal Circuit should essentially abandon what we think is its correct precedent and follow its sister circuits and draw in an artificial distinction between claims and other forms of intangible property.

[00:06:17] Speaker 03:
Moving on to the second point, we think that the per se categorical rules of horn apply here.

[00:06:24] Speaker 03:
And that's because the taking here was an appropriation.

[00:06:27] Speaker 03:
The claims of the Almenestiano plaintiffs were espoused.

[00:06:30] Speaker 03:
They were transferred to the government, and the government used them however they wanted to use them.

[00:06:35] Speaker 03:
And that's the key distinction between this case and aviation.

[00:06:40] Speaker 01:
The aviation- They were really interfered with in two ways.

[00:06:42] Speaker 01:
I mean, the settlement agreement

[00:06:45] Speaker 01:
transfer of the money and the reestablishment of sovereign immunity all happened before the official espousal.

[00:06:53] Speaker 03:
I don't think that's right.

[00:06:53] Speaker 03:
I think that the claims were espoused by the government when it appropriated them and used them when it settled the claims.

[00:07:01] Speaker 03:
The government didn't have the authority to do that.

[00:07:04] Speaker 01:
If you look at the settlement agreement, it says nothing about espousal.

[00:07:09] Speaker 03:
No, I think if you look at the appendix page 30,

[00:07:14] Speaker 03:
What the settlement agreement says is that, under Article 3, each party, meaning the government, shall accept the resources for distribution as a full and final settlement of its claims and suits and those of its nationals.

[00:07:28] Speaker 03:
It wouldn't have the authority to do that unless it had already appropriated the claims.

[00:07:33] Speaker 01:
Wait.

[00:07:33] Speaker 01:
So I think that the resources for distribution?

[00:07:39] Speaker 03:
So I think that Article 3, the government could not do that.

[00:07:43] Speaker 03:
unless it had appropriated the claims.

[00:07:45] Speaker 03:
It had no right to stand in our shoes and agree to that unless and until it had appropriated the claims.

[00:07:52] Speaker 03:
And that, I think, is the key distinction between our case and the aviation case.

[00:07:56] Speaker 03:
The plaintiffs in aviation, they still have their claims.

[00:07:59] Speaker 03:
They could go to another forum if one were available and use them.

[00:08:02] Speaker 03:
We don't.

[00:08:03] Speaker 03:
The government took our claims.

[00:08:06] Speaker 03:
And the government even admitted that they appropriated the claims.

[00:08:09] Speaker 03:
That's what they told the DC Circuit.

[00:08:11] Speaker 03:
They sold the DC Circuit that, this is the quote, in espousing the claims against Libya, the United States has made plaintiff's claims its own.

[00:08:20] Speaker 03:
And that brings us to Horn.

[00:08:22] Speaker 03:
Horn holds in stark terms that when the government appropriates protected property, regardless of type, it has affected a categorical taking and must pay just compensation.

[00:08:34] Speaker 03:
So when it comes to appropriations, the Supreme Court explained that the Fifth Amendment, quote,

[00:08:38] Speaker 03:
protects private property without any distinction between different types.

[00:08:44] Speaker 03:
Horne essentially reminds the lower courts that the cumbersome interest and expectations balancing required under the pen-central Lucas regulatory paradigm just has no place in the face of an actual appropriation.

[00:08:56] Speaker 03:
Essentially, the Supreme Court is signaling to the lower courts that they're working too hard here.

[00:09:01] Speaker 03:
So the syllogism that was rejected in Abraham Urey is the precise syllogism that the Supreme Court mandated in Horne.

[00:09:08] Speaker 03:
When the government appropriates protected property, it must pay just compensation, period.

[00:09:15] Speaker 03:
The government's expressed concern that if the court were to find it taken here, it would have some sort of drastic and harmful impact on their foreign relations.

[00:09:24] Speaker 03:
We think that's a bit alarmist.

[00:09:26] Speaker 03:
The government can very effectively resolve claims against foreign governments without taking possession of those claims.

[00:09:35] Speaker 03:
We know that because it did just that in connection with the claims

[00:09:38] Speaker 03:
that it resolved for the aviation plaintiffs.

[00:09:41] Speaker 03:
What it really needs is just clear guidance from the courts as what the rules are, what the takings clause allows them to do, and what it doesn't without paying just compensation.

[00:09:49] Speaker 03:
So in aviation, the claims weren't seized and compromised.

[00:09:53] Speaker 03:
They were just regulated.

[00:09:55] Speaker 03:
Libya's sovereign immunity was restored.

[00:09:59] Speaker 03:
And in doing so, that stripped the federal courts of jurisdiction, and they couldn't prosecute their claims anymore.

[00:10:05] Speaker 03:
And that's why this court in aviation adjudicated that dispute within the regulatory paradigm.

[00:10:12] Speaker 03:
But here, to resolve the claims against Libya, the government actually appropriated them.

[00:10:17] Speaker 03:
And how the government goes about exercising its extraordinary powers matters.

[00:10:23] Speaker 03:
In Horn, the dissent pointed out that the government could have achieved essentially the same ends by simply regulating or taxing the raising growers.

[00:10:32] Speaker 03:
But the court rejected the argument.

[00:10:34] Speaker 03:
And Justice Roberts went on a bit of a lecture in writing for the court.

[00:10:38] Speaker 03:
He wrote that, quote, the Constitution, however, is concerned with means as well as ends.

[00:10:44] Speaker 03:
The government has broad powers, but the means it uses to achieve its ends must be consistent with the letter and spirit of the Constitution.

[00:10:53] Speaker 03:
And I'm hard pressed to think of anything less consistent with the letter and spirit of the Constitution than the government's position that they could take possession of, use, and appropriate and benefit from the claims of its citizens

[00:11:04] Speaker 03:
without paying just compensation.

[00:11:07] Speaker 03:
I just want to quickly touch upon the justiciability point.

[00:11:11] Speaker 03:
In aviation, the court held that essentially the exact case here, the question of whether a taking occurs when the government espouses a claim against a foreign power is justiciable.

[00:11:20] Speaker 03:
So we think that's the same case here.

[00:11:22] Speaker 03:
And I think I'll reserve the balance of my time.

[00:11:38] Speaker 00:
Good morning, and may it please the court.

[00:11:41] Speaker 00:
The court should affirm the trial court's judgment in this case.

[00:11:44] Speaker 00:
And there are three reasons why.

[00:11:45] Speaker 01:
First.

[00:11:46] Speaker 01:
Before you get into your argument, could you just quickly respond to the Article III argument your adversary made a moment ago?

[00:11:52] Speaker 01:
This is in the settlement agreement.

[00:11:57] Speaker 01:
This is a question of whether or not the settlement agreement actually espouses the claims, or whether the actual espousal in this case came later in the lawsuit.

[00:12:04] Speaker 00:
Right.

[00:12:06] Speaker 00:
It is true that the settlement agreement does resolve and settle these claims.

[00:12:11] Speaker 00:
But I'd like to explain why it doesn't matter here.

[00:12:15] Speaker 00:
It doesn't matter because the district court lawsuit was dismissed months later.

[00:12:19] Speaker 00:
And that seems to be what they assert as the property interest, their legal claims against Libya and the non-final judgment.

[00:12:26] Speaker 01:
That non-final judgment... I'm just talking about the official espousal.

[00:12:30] Speaker 00:
Right.

[00:12:31] Speaker 00:
Well, the announcement of the official espousal occurred after Libya's sovereign immunity.

[00:12:35] Speaker 00:
was reinstated.

[00:12:37] Speaker 01:
What was the effect of Article 3 to espouse the claim?

[00:12:40] Speaker 00:
They had been settled, yes, in the settlement agreement.

[00:12:44] Speaker 00:
But it doesn't matter because when their district court lawsuit was dismissed, it was dismissed not just because the claims were espoused, but also because Libya possessed sovereign immunity at that time.

[00:12:54] Speaker 00:
And so there are two reasons why they don't have a property interest here.

[00:12:57] Speaker 00:
First, they don't have any cognizable property interest in rules of sovereign immunity.

[00:13:01] Speaker 00:
Those rules can change at any time.

[00:13:03] Speaker 00:
And in fact, here, obviously, they did.

[00:13:05] Speaker 00:
At the time the injury occurred here, the bombing occurred, Livia possessed sovereign immunity for acts of state-sponsored terror.

[00:13:12] Speaker 00:
That changed in the mid-'90s, and then it changed again approximately 10 years later.

[00:13:16] Speaker 00:
So that's the first reason why they don't have a cognizable property interest.

[00:13:19] Speaker 00:
But the second reason is that they don't have a property interest in their legal claim period.

[00:13:25] Speaker 00:
Now we recognize, and a number of courts have held that, particularly with respect to tort claims,

[00:13:30] Speaker 00:
But we recognize that this court in Adams did draw some exceptions to that bright line rule.

[00:13:36] Speaker 00:
And what the court said in Adams is that claims can be property if they protect legally recognized property interests that is real property, physical property, or intellectual property.

[00:13:47] Speaker 00:
These underlying tort claims don't fall within the ambit of Adams.

[00:13:50] Speaker 00:
They're not real property, they're not physical property, and they're not intellectual property.

[00:13:54] Speaker 02:
Are those three the only underlying claims that could support the taking?

[00:14:00] Speaker 00:
Well, to our knowledge, there are no cases broadening that definition at all.

[00:14:07] Speaker 00:
And we respectfully submit that if you do begin to broaden it, then the exception in essence swallows the rule, particularly if we're talking about common law tort claims, as we are here.

[00:14:20] Speaker 02:
And I'd also add the gloss onto that.

[00:14:23] Speaker 02:
For example, say a final judgment.

[00:14:26] Speaker 00:
Well, that could potentially be different.

[00:14:29] Speaker 00:
We do think there are certain circumstances, at least in the context of international affairs, where the government, the president, and Congress could espouse and settle even final judgments without affecting a taking.

[00:14:44] Speaker 00:
But we recognize that a number of courts have drawn the distinction there and said that

[00:14:48] Speaker 00:
that property rights do become vested once they become subject to a final judgment.

[00:14:56] Speaker 00:
But we do think international affairs and international claims are a different animal, so to speak.

[00:15:04] Speaker 00:
I'd like to turn to the question, in addition to the fact that the plaintiffs don't possess a cognizable property interest here, no taking actually occurred.

[00:15:14] Speaker 00:
The plaintiffs rely heavily upon the recent

[00:15:16] Speaker 00:
Supreme Court decision in Horn.

[00:15:20] Speaker 00:
But Horn, first, much of what they rely on is dict and horn.

[00:15:25] Speaker 00:
Horn, though, didn't address the circumstances here.

[00:15:28] Speaker 00:
The case that does address the circumstances here is Abraham-Urey.

[00:15:32] Speaker 01:
And what this court said in Abraham-Urey is that even to the extent... You earlier said, with regard to the property international claims are a different animal, that's basically your answer.

[00:15:43] Speaker 00:
Right, exactly.

[00:15:43] Speaker 00:
And that's our answer.

[00:15:44] Speaker 01:
Not on the other, on the takings issue.

[00:15:45] Speaker 00:
Right.

[00:15:46] Speaker 00:
That's right, Your Honor.

[00:15:47] Speaker 00:
What this court said at Abraham-Urey is that even to the extent that we're talking about property, certain property comes with inherent limitations, and that if you obtain a claim against a foreign state, you do so with the inherent knowledge that that claim could be settled.

[00:16:04] Speaker 01:
In terms of takings jurisprudence, international claims are sort of mongrels.

[00:16:08] Speaker 00:
I think that's fair to say.

[00:16:10] Speaker 00:
Yes, your honor.

[00:16:11] Speaker 00:
And of course the concurring opinion in Abraham, Abraham-Uri makes that point.

[00:16:17] Speaker 01:
So what do you do under Abraham-Uri?

[00:16:19] Speaker 01:
You're allowed to use pencentral factors to inform your judgment about whether or not a taking took place.

[00:16:27] Speaker 01:
I think that's right.

[00:16:29] Speaker 01:
Lucas is what teaches you that international claims are a different animal.

[00:16:34] Speaker 00:
I think that's right.

[00:16:35] Speaker 00:
I would characterize it slightly differently.

[00:16:37] Speaker 00:
I think the analysis was really looking at, what is the property interest here?

[00:16:41] Speaker 00:
And do they actually have any sort of right in this respect?

[00:16:46] Speaker 00:
Is it a complete thing?

[00:16:47] Speaker 01:
Let's lay that aside for a moment and assume, for purposes of argument, that we decide that there is a property interest, whether we say we're bound to that by Abraham-Urey or otherwise, or as in the recent case, we allied the issue and assume it.

[00:17:02] Speaker 01:
Then why is it that we ignore horn?

[00:17:07] Speaker 00:
Well, horn, number one, doesn't talk about international claims, obviously.

[00:17:12] Speaker 00:
And if horn had been a case where, let's say, the government had grown the raisins in horn and then gave those raisins to the horns and said, you can use these raisins, but we may take them back at any time.

[00:17:27] Speaker 00:
And against that backdrop, we have a long history going back to the founding of the nation.

[00:17:32] Speaker 00:
of the government actually taking back raisins.

[00:17:35] Speaker 00:
That would then put Horn more like our case.

[00:17:38] Speaker 00:
But that's not what Horn is about.

[00:17:39] Speaker 00:
Horn doesn't talk about international claims.

[00:17:41] Speaker 00:
It doesn't talk about the fact that when parties obtain a claim against a foreign country, they do so with the knowledge, the inherent knowledge, that that claim may be settled and espoused at any time.

[00:17:51] Speaker 00:
That in essence, any rights that they have take a backseat to the rights of the executive

[00:18:00] Speaker 00:
And here, it was not just the executive, but also Congress, obviously, to settle and resolve claims in the interest of international relations.

[00:18:08] Speaker 01:
Is it your understanding of your adversary's position that if we reject their per se argument, then they concede or they don't have an argument against an analysis under Abraham-Urey?

[00:18:21] Speaker 00:
They haven't seemed to challenge our analysis of the pencentral factors in their briefs here.

[00:18:26] Speaker 01:
Don't they in their briefs suggest that perhaps if this is a

[00:18:30] Speaker 01:
Lucas type case, then at least with regard to the four people or three or four people who got no recovery at all, it's a total taking?

[00:18:38] Speaker 00:
Well, that is what they argue, right?

[00:18:40] Speaker 00:
They say it's a per se taking.

[00:18:41] Speaker 00:
But again, Abraham Urey rejected the argument that just because there's a per se taking, that that's the end of the inquiry.

[00:18:48] Speaker 00:
You have to, in essence, look at... Well, it's a question.

[00:18:50] Speaker 01:
I mean, I suppose the question is saying, well, do you use outside of a Loretto physical occupation coming in and sort of

[00:19:01] Speaker 01:
occupying the real estate and the regulatory side, you have Penn Central on the one hand, Lucas on the other, right?

[00:19:10] Speaker 00:
Right.

[00:19:10] Speaker 00:
I think that's generally true.

[00:19:14] Speaker 00:
But what the court said in Abraham-Yuri is that even if there is a per se taking, you may not in essence have owned the rights that are alleged to have been taken in that circumstance.

[00:19:25] Speaker 00:
You never have the unfettered right or the unfettered ability to sue a foreign country.

[00:19:31] Speaker 00:
But that grant, which Congress granted obviously after the injury took place here, that grant is contingent and can be taken back at any time.

[00:19:41] Speaker 01:
To what extent is the reference in URI to a sufficient remedy that the government supplies you on the other hand?

[00:19:50] Speaker 00:
How significant is that?

[00:19:51] Speaker 00:
Well, it's not.

[00:19:53] Speaker 00:
In fact, in the Belk case, which is another espousal case,

[00:19:58] Speaker 00:
There, the case involved individuals who had been held hostage by Iran.

[00:20:03] Speaker 00:
And at the time, they were afforded no compensation.

[00:20:05] Speaker 00:
Their claims were espoused, like here.

[00:20:08] Speaker 00:
And they were not provided any sort of alternative forum.

[00:20:10] Speaker 00:
And what the court in Belk said, this court said, is that the failure to provide any sort of alternative forum doesn't make a taking.

[00:20:19] Speaker 00:
And also, if the court is going to... If that's the case, then what was the office?

[00:20:27] Speaker 01:
What was the job that was being done by the portion of the hearing opinion that talks about the other remedy and it being quite sufficient?

[00:20:36] Speaker 00:
Right.

[00:20:36] Speaker 00:
Well, I think the court was just noting that in that case, there was an alternative form that was provided and that certainly provided an additional reason for why no taking occurred.

[00:20:47] Speaker 00:
That's true here as well.

[00:20:49] Speaker 00:
the family collectively received approximately.

[00:20:53] Speaker 01:
It's here for the members of the family that got something, but not for the estates of the two brothers.

[00:20:58] Speaker 00:
Right.

[00:20:58] Speaker 00:
Yes, that's true there.

[00:21:00] Speaker 00:
And the widow.

[00:21:01] Speaker 00:
Right.

[00:21:03] Speaker 00:
On her own.

[00:21:04] Speaker 00:
Right.

[00:21:04] Speaker 00:
And now, respectfully, Your Honor, I think we're treading into, in the aviation case, what the court said is, although it's just the question of whether or not a taking occurred is justiciable, the decision

[00:21:19] Speaker 00:
to settle claims and how the settlement proceeds are actually distributed is not a justiciable inquiry because there are no judicially manageable standards for the court to evaluate.

[00:21:30] Speaker 01:
And obviously... Do you think the reasons why the brothers of states were excluded or not getting any consideration or that the widow's claim was rolled back into her estate claim fall into non-justiciability?

[00:21:44] Speaker 00:
We do, Your Honor, respectfully, yes.

[00:21:47] Speaker 00:
But I can tell you that.

[00:21:48] Speaker 01:
That specific point wasn't brief.

[00:21:50] Speaker 01:
This discussion you and I are having now was not in the brief, right?

[00:21:57] Speaker 00:
Well, we did make the point, Your Honor, that in terms of justiciability, it's at page 52 of our brief, I believe.

[00:22:03] Speaker 00:
We did make the point that, in fact, the distinction between challenging the espousal and challenging what the commission did here

[00:22:12] Speaker 00:
is not a distinction in this case because they have many references to the Commission's decision to provide payment to certain individuals and not others.

[00:22:23] Speaker 01:
Is your bottom line simply that we're bound by Abraham Yuri?

[00:22:27] Speaker 00:
Yes, I think that's right.

[00:22:28] Speaker 01:
Because you don't view Horn to be specific enough in talking to this environment?

[00:22:34] Speaker 00:
That's right, Your Honor.

[00:22:35] Speaker 00:
And again, if Horn had talked about a situation where if I'm the government and I see that someone

[00:22:43] Speaker 00:
Their pen isn't working, and I say to them, you can use my pen for the rest of the day.

[00:22:47] Speaker 00:
And at the end of the day, they don't give it back.

[00:22:49] Speaker 00:
And I, the government, take that pen back.

[00:22:51] Speaker 00:
That's not a taking.

[00:22:53] Speaker 00:
And that's what happened here with respect to international claims.

[00:22:56] Speaker 00:
As the court in aviation said, what Congress giveth, Congress can taketh away.

[00:23:01] Speaker 00:
And that's what happened here, both Congress and the executive, obviously, acting in conjunction.

[00:23:09] Speaker 00:
So we respectfully request that the court affirm the trial court's decision.

[00:23:24] Speaker 03:
Just a few quick points.

[00:23:29] Speaker 03:
The government wants the court to do what Horne says it may not.

[00:23:34] Speaker 03:
The government and the Supreme Court in Horne said that when there's an appropriation, you don't look at expectations.

[00:23:40] Speaker 03:
You don't go beyond the text of the Constitution that says essentially that private property shall not be taken for public use without just compensation.

[00:23:51] Speaker 03:
Horne said, don't look at the Lucas factors in the face of an appropriation.

[00:23:54] Speaker 03:
And he's telling this court to look at the Lucas factors.

[00:23:58] Speaker 03:
And that's not what Horne allows the courts to do here.

[00:24:04] Speaker 03:
This is a complete deprivation.

[00:24:05] Speaker 03:
And moving on to his other point.

[00:24:07] Speaker 01:
Are there reasons why a court might throw a line between international claims and domestic claims?

[00:24:14] Speaker 03:
Sorry, can you repeat the question?

[00:24:16] Speaker 01:
Isn't there a reason why a court might draw a line between domestic claims and international claims?

[00:24:30] Speaker 03:
I think where that line may come into play is with respect to what just compensation might be the last part of the takings analysis, because perhaps claims against the sovereign

[00:24:42] Speaker 03:
might be less valuable than claims against Microsoft in certain ways because of certain immunities that they may have.

[00:24:49] Speaker 03:
But in terms of the property interest itself and which box you're in in terms of the analysis, I don't think so.

[00:24:56] Speaker 03:
A claim isn't less of a property interest because it's against a foreign sovereign.

[00:25:02] Speaker 03:
The claim is the claim.

[00:25:04] Speaker 03:
Its character is not any different.

[00:25:06] Speaker 03:
There might be different rules.

[00:25:07] Speaker 01:
Well, the question is whether it can be taken without compensation.

[00:25:12] Speaker 01:
I think that... There's a recognition in Abraham-Uri that there was a dispossession of a property interest.

[00:25:20] Speaker 01:
Abraham-Uri says that the court shows in action was a property interest, right?

[00:25:26] Speaker 01:
Correct.

[00:25:26] Speaker 01:
And it was taken.

[00:25:28] Speaker 01:
Correct.

[00:25:29] Speaker 01:
And that decision by Abraham-Uri that there was a property interest to me doesn't strike me as dictum because

[00:25:35] Speaker 01:
it was necessary for the decision.

[00:25:37] Speaker 01:
You wouldn't have had a decision on whether or not there was a taking unless there had been a viable property answer.

[00:25:48] Speaker 03:
I think Abraham Urey would have controlled this case prior to Horn.

[00:25:53] Speaker 03:
And under Abraham Urey, as the court noted, you were

[00:25:59] Speaker 03:
very much in the Lucas box.

[00:26:00] Speaker 01:
And I think that the test that the court seemed to apply... Assuming for purposes of argument that we reject your view that Horne requires us to analyze this as a per se taking Loretto with giving no consideration of the fact that it's international.

[00:26:20] Speaker 01:
What's left of your case?

[00:26:23] Speaker 03:
I think that under Abraham Urey, the test there

[00:26:28] Speaker 03:
was essentially you look at whether the plaintiff's recovery, how they did was just in light of the circumstances.

[00:26:34] Speaker 03:
Did they do about as well as could have been expected?

[00:26:38] Speaker 03:
And that's why the court in Abraham Urie said the plaintiffs there did pretty well.

[00:26:43] Speaker 03:
They got 100% of the principle on their claims, and they got most of the interest.

[00:26:48] Speaker 03:
And they said, given the problems you are facing with trying to get your claims resolved by this arbitration panel,

[00:26:55] Speaker 03:
You know, you did great.

[00:26:57] Speaker 03:
You have nothing to complain about.

[00:26:58] Speaker 03:
You couldn't have expected to do any better.

[00:27:00] Speaker 03:
But that's not the case here.

[00:27:05] Speaker 01:
Here, as the court noted, four of the plaintiffs... But doesn't Abraham Yuri say that pancentral considerations are pertinent?

[00:27:15] Speaker 03:
I think the considerations... I think that it might have mentioned pancentral, but it seemed to employ

[00:27:23] Speaker 01:
very much a... Although the Court of Federal Claims had turned the case on Penn Central, the lead argument was that that was legal error, that you couldn't do that, that Loretto applied, it was a per se taking.

[00:27:37] Speaker 01:
And the Court and Abraham Nury did not say, oh, the District Court erred by it, the Court of Federal Claims erred by using Penn Central analysis that said they're pertinent.

[00:27:48] Speaker 03:
Sure.

[00:27:48] Speaker 03:
I think it did, but certainly the thrust of the opinion was very Lucas

[00:27:53] Speaker 03:
centric.

[00:27:54] Speaker 03:
It didn't look at the host of factors that you really are supposed to look at under Penn Central.

[00:28:00] Speaker 03:
It looked at a very narrow set of factors, more like a Lucas analysis.

[00:28:05] Speaker 03:
So I think in terms of the analysis employed by the court, I think it was very much a Lucas analysis.

[00:28:11] Speaker 03:
And I think that that's the analysis that makes sense, given the rules that the Supreme Court set up, which require that when there's essentially a complete deprivation of a right.

[00:28:22] Speaker 01:
What about milk?

[00:28:25] Speaker 01:
In Belk, the individuals who had been incarcerated in Iran brought their lawsuit, came away with nothing.

[00:28:33] Speaker 03:
I think Belk preceded Lucas.

[00:28:37] Speaker 03:
So I think that to the extent that the Belk analysis applied, it preceded Lucas.

[00:28:46] Speaker 03:
So the Lucas rules that the court, I think, employed in Abraham-Yuri didn't exist when Belk was decided.

[00:28:52] Speaker 03:
So there was kind of a different toolkit

[00:28:54] Speaker 03:
that was available to the Federal Circuit prior to Lucas.

[00:29:02] Speaker 03:
Because Belk was in 19, I think, I believe, 88 case.

[00:29:07] Speaker 03:
I think.

[00:29:10] Speaker 03:
Final thought.

[00:29:10] Speaker 03:
What?

[00:29:11] Speaker 03:
Final thought.

[00:29:12] Speaker 03:
Your time's up.

[00:29:14] Speaker 03:
I think that's all I have.

[00:29:16] Speaker 03:
Thank you.

[00:29:17] Speaker 03:
You thank both sides.

[00:29:18] Speaker 03:
The case is submitted.

[00:29:19] Speaker 03:
That concludes our discussion for this morning.

[00:29:23] Speaker 00:
All right.