[00:00:00] Speaker 05: Our next case for argument is 23-1523, Lessers versus Defense. [00:00:06] Speaker 05: Mr. Perdue, whenever you're ready, please stand. [00:00:09] Speaker 03: May it please the court, William Perdue, on behalf of the Lessers. [00:00:12] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:15] Speaker 03: At great personal risk, the Lessers signed contracts leasing their ancestral land to the U.S. [00:00:20] Speaker 03: government. [00:00:21] Speaker 03: In rejecting the Lester's claims for unpaid rent, the board reasoned on summary judgment that the Lester's cannot possibly prove that they own the land. [00:00:31] Speaker 03: But in 2021, the Afghan Land Court definitively held that the Lester's do own the land. [00:00:38] Speaker 03: At the outset today, I'd like to focus on why that 2021 decision is entitled to recognition. [00:00:44] Speaker 03: because if this court recognizes the 2021 decision, then the other issues in this case, including intent to contract and the active state doctrine get much simpler. [00:00:55] Speaker 03: So turning to recognition, the only basis for not recognizing the 2021 decision that the government defends on appeal is supposed to doubt about the land court's integrity under section 484 G of the restatement. [00:01:11] Speaker 03: That provision clearly does not apply here. [00:01:13] Speaker 03: As the restatement explains in Comment I, Section 484G, quote, requires. [00:01:19] Speaker 04: Council, my understanding is the government of the Islamic Republic of Afghanistan no longer exists, right? [00:01:27] Speaker 04: OK. [00:01:27] Speaker 04: So what effect of any does that have on our active state doctrine analysis here? [00:01:32] Speaker 03: So I don't think you need to get to that if you recognize the 2021 decision, but I'm happy to answer the question. [00:01:39] Speaker 03: So I think that supports our position that the active state doctrine does not apply. [00:01:46] Speaker 03: The Supreme Court's leading exposition of the active state doctrine in Sabatino says that the active state doctrine is a judge-made federal common law rule that only applies when its purposes are being served in a given case. [00:01:58] Speaker 03: One instance in which the doctrine's purposes would not be served is when the relevant sovereign no longer exists. [00:02:05] Speaker 03: That gives you a reason not to need to defer to that sovereign's sovereign acts. [00:02:10] Speaker 03: But you don't need to get to that if you, I think, if you recognize the 2021 decision. [00:02:16] Speaker 03: I was saying that the only provision the government invokes is section 44G, which requires a showing of corruption in the particular case with respect to the particular proceeding. [00:02:29] Speaker 03: For example, bribery of the judge may justify nonrecognition. [00:02:33] Speaker 05: Why do you think that we don't need to reach it if we recognize the 2121 decision? [00:02:37] Speaker 05: And I ask because the board [00:02:42] Speaker 05: decided this case on two bases one was active state and the other was I think the interpretation of the two hundred and eighteen decision and is it do you I mean I feel like the twenty twenty one decision only has the capacity [00:02:57] Speaker 05: to potentially wipe out that issue, which is the board's interpretation of the 2018 decision. [00:03:04] Speaker 05: I don't understand how the 2021 decision has the ability to wipe out the separate and independent act of state issue. [00:03:12] Speaker 03: Certainly. [00:03:13] Speaker 05: Explain how that weaves together. [00:03:14] Speaker 03: Absolutely. [00:03:15] Speaker 03: So the board did decide this case on two independent grounds. [00:03:19] Speaker 03: One was that there was no intent to contract because the lessors don't own the land. [00:03:24] Speaker 03: If you recognize the 2021 decision, that conclusively establishes that we own the land. [00:03:29] Speaker 03: So that takes care of that ground of the decision. [00:03:31] Speaker 03: The other ground is the active state doctor. [00:03:33] Speaker 05: So the reason... When did the defense minister make his proclamation? [00:03:39] Speaker 05: What was that, 20 what? [00:03:40] Speaker 03: 2017 and 2018. [00:03:42] Speaker 03: And the timeline here is important. [00:03:45] Speaker 05: But he made a proclamation that the government owns the land. [00:03:49] Speaker 03: That is not what the declarations say. [00:03:53] Speaker 03: Whatever the declarations say, they cannot possibly mean that the lessors do not own the land, because several years later, in 2021, the Afghan Land Court held definitively that the lessors do own the land. [00:04:08] Speaker 05: So in other words- See, that's a little bit challenging for me. [00:04:11] Speaker 05: I mean, I find this case to be quite tricky. [00:04:16] Speaker 05: A government that's no longer in power asserts that they own a land. [00:04:19] Speaker 05: A land court, a few years later when there's a different government in power, says they didn't own the land. [00:04:25] Speaker 05: Why don't I look at the declaration by the minister at the time he was in power as effectively a taking? [00:04:32] Speaker 05: Regardless of who technically owned the land, what he was doing is declaring that the government is usurping this property for purposes of allowing the US military to remain on it. [00:04:44] Speaker 03: So I think there's a critical- That feels like an act of state to me. [00:04:47] Speaker 05: The taking feels like an act of state. [00:04:49] Speaker 05: Is that right? [00:04:50] Speaker 03: A taking could be an act of state, but this was not a taking. [00:04:53] Speaker 03: And there's a critical timing assumption in your question that I want to correct, which is that the 2021 decision happened when the Afghan Republic was still in power. [00:05:03] Speaker 03: That is a decision by a court of the Afghan Republic. [00:05:06] Speaker 03: So it's the same government that issued the 2021 decision. [00:05:09] Speaker 05: But it kind of doesn't matter. [00:05:15] Speaker 05: If it was a taking, does it really matter? [00:05:18] Speaker 03: I think the 2021 decision shows that it was not a taking because the 2021 decision definitively holds that my clients, the lessors own the land. [00:05:28] Speaker 03: It can't have been taken from them if they own it. [00:05:31] Speaker 05: Of course it can be taken from them if they own it. [00:05:33] Speaker 05: What do you mean? [00:05:34] Speaker 05: Governments can do temporary takings all the time. [00:05:37] Speaker 03: If this was a temporary taking, and there's been no suggestion in the board's decision that this was a temporary taking, that would merely go to the amount of damages. [00:05:45] Speaker 03: And the proper disposition by this court would be to reverse and remand and for this to go back down. [00:05:53] Speaker 03: I think that the 2021 decision shows that there is nothing inconsistent between the declarations and our claims. [00:06:00] Speaker 05: Well, it's not that there's nothing inconsistent. [00:06:01] Speaker 05: Of course there's nothing inconsistent. [00:06:03] Speaker 05: The declaration says [00:06:04] Speaker 05: that they own the land, and the 2021 decision says, no, you didn't. [00:06:07] Speaker 05: So of course there's inconsistency. [00:06:09] Speaker 05: I think what you're saying is the 2021 decision sort of overrules the declaration. [00:06:13] Speaker 03: I think you can look at it either way. [00:06:15] Speaker 03: We do not believe there is anything inconsistent. [00:06:17] Speaker 03: But if you believe that the 2021 decision overruled the 2018 decisions, then the 2017 and 2018 declarations, then they've been wiped off the books. [00:06:26] Speaker 03: And there's nothing inconsistent with our claims today. [00:06:31] Speaker 03: So those declarations, if they've been invalid, sorry. [00:06:33] Speaker 04: Council, even if we find the 2021 decision is not entitled to recognition, is it your position that that decision would raise genuine issues of material fact? [00:06:43] Speaker 03: Absolutely. [00:06:44] Speaker 03: So you can recognize it as a court decision under the under [00:06:47] Speaker 03: the restatement principles. [00:06:49] Speaker 03: I think we think, as I was explaining, the board misapplied those principles. [00:06:53] Speaker 03: I think you could also just look at it as a piece of evidence. [00:06:57] Speaker 03: In Afghanistan, the courts are not just courts. [00:07:01] Speaker 03: They are also the recorder of deeds. [00:07:03] Speaker 03: And thus, the 2021 decision. [00:07:05] Speaker 05: You are wading into a territory which is an appellate court. [00:07:08] Speaker 05: I feel very uncomfortable. [00:07:10] Speaker 05: You're asking me to basically make weird fact findings about another country's property and governmental regime. [00:07:16] Speaker 05: feel like, if that's necessary, that's a vacate and remand for a fact finder to do that. [00:07:22] Speaker 05: That doesn't feel like something I should be doing. [00:07:25] Speaker 03: We would be happy with a vacate and remand, obviously. [00:07:29] Speaker 03: And I think it's important to remember that the government raised non-recognition and the government moved for summary judgment. [00:07:35] Speaker 03: So they need to meet all of their burdens as a matter of law on the current record. [00:07:39] Speaker 03: If there's any question about whether [00:07:41] Speaker 03: the current record is sufficient, then the proper disposition is to vacate and remand. [00:07:46] Speaker 03: And I think you can do that through recognition principles or just through treating the 2021 decision as effectively another deed. [00:07:53] Speaker 03: It's just another piece of evidence of ownership that raises a [00:07:57] Speaker 03: a genuine issue of fact about who owns this land. [00:08:00] Speaker 02: To follow up on Judge Cunningham's earlier question regarding this government is no longer in existence. [00:08:06] Speaker 02: So I'm trying to wrap my head around how we deal with the act of state doctrine. [00:08:10] Speaker 02: I know you said we don't get there, but we do. [00:08:13] Speaker 02: I still struggle with that. [00:08:15] Speaker 02: They're not there in power anymore, everyone that was involved in this case. [00:08:19] Speaker 03: I think that's another reason not to apply the active state doctrine in this case. [00:08:23] Speaker 03: The active state doctrine is an affirmative defense. [00:08:26] Speaker 03: The government is the party that's asserting that defense. [00:08:29] Speaker 03: They bear the burden to establish all of the elements of the defense, and they have three elements they have to show. [00:08:36] Speaker 03: official sovereign act. [00:08:38] Speaker 03: They have to show that that official sovereign act is inconsistent with some necessary element of our claim. [00:08:43] Speaker 03: And they have to show that applying the active state doctrine in this case would further the purposes that the active state doctrine is designed [00:08:51] Speaker 03: to further. [00:08:53] Speaker 03: That is part of their burden. [00:08:54] Speaker 05: And you're arguing the third one's not met here because it doesn't further the purpose. [00:09:01] Speaker 03: We argue all three. [00:09:02] Speaker 03: They have not met any of them. [00:09:03] Speaker 03: But the issue of the relevant sovereign no longer existing goes to the third piece of their burden. [00:09:10] Speaker 03: And Sabatino discusses this expressly. [00:09:13] Speaker 03: It expressly mentions the possibility of a sovereign that is no longer extant. [00:09:18] Speaker 04: So counsel, assume that we do not give the 2021 decision recognition and we want to rule as nearly as possible. [00:09:27] Speaker 04: Can you describe to me what you believe would be all the issues we have to address in that context? [00:09:33] Speaker 03: So I think on intent to contract, it's very simple. [00:09:36] Speaker 03: The only basis on which the board suggested that there isn't an intent to contract is that we don't own the land. [00:09:42] Speaker 03: The 2021 decision is evidence that we do own the land. [00:09:45] Speaker 03: It at a bare minimum raises a material effect about whether we own the land. [00:09:50] Speaker 03: So that takes care of intent to contract. [00:09:52] Speaker 03: Then the other issue is the active state. [00:09:54] Speaker 03: I think if there is a question about whether we own the land, I mean, the board emphasized that all parts of this case [00:10:04] Speaker 03: intent to contract and the active state doctrine ultimately come down to who owns this land. [00:10:09] Speaker 03: And so if there's material disputes of fact about who owns the land, then there's material disputes of fact such that the government can't meet its burden under the active state doctrine either. [00:10:19] Speaker 03: I think you could also add something about the fact that the relevant sovereign does not exist. [00:10:24] Speaker 03: That's another further reason why the active state doctrine would not apply here and that the government hasn't met its burden. [00:10:31] Speaker 03: But I think that would be sufficient and this court could remand on that basis. [00:10:36] Speaker 03: The 2017-2018 declarations, you consider those to be sovereign acts? [00:10:41] Speaker 02: We do not believe they are sovereign acts. [00:10:43] Speaker 02: So what are they? [00:10:44] Speaker 02: Because, ultimately, they built a military base on this land. [00:10:47] Speaker 02: Yes. [00:10:47] Speaker 02: Well, our, what, the way we- They're really more sovereign than putting a military base. [00:10:52] Speaker 03: So, the, the, um, the relevant act is not the act of putting the military base there. [00:10:58] Speaker 03: The relevant act is issuing these declarations. [00:11:00] Speaker 03: And these are declarations, these are unilateral acts by the Afghan Ministry of Defense. [00:11:06] Speaker 03: The Ministry of Defense has no authority to alter Afghan property law or to take away our contract rights. [00:11:12] Speaker 03: So the declarations do as much as the Afghan MoD is authorized to do, which is to promise indemnification. [00:11:21] Speaker 03: They basically tell the U.S. [00:11:22] Speaker 03: government [00:11:22] Speaker 03: You can use this land, and if somebody sues you, we will make you whole. [00:11:27] Speaker 03: And I think the U.S. [00:11:29] Speaker 03: government understood at the time that the declarations did not erase our contract rights. [00:11:35] Speaker 03: There are emails from U.S. [00:11:37] Speaker 03: real estate officers that say that the declarations have, quote, no value, and that notwithstanding the declarations, the U.S. [00:11:46] Speaker 03: government may still be liable for, quote, $24 million in rent. [00:11:50] Speaker 03: That's Appendix 1319 and 1352. [00:11:52] Speaker 03: So fundamentally, this is a commercial act. [00:11:57] Speaker 03: It is a promise of indemnification where the declarations may alter the rights and obligations as between the US government and the Afghan government, but they do not change anything between the lessors and the US government. [00:12:13] Speaker 03: The lessors still have a contract that entitles them to rent, and that hasn't changed. [00:12:17] Speaker 05: You want to save the rest for a bottle? [00:12:19] Speaker 03: I will. [00:12:19] Speaker 03: Thank you. [00:12:20] Speaker 05: Thank you. [00:12:22] Speaker 05: Is it Mr. Sciavetti? [00:12:35] Speaker 01: Thank you, Your Honor. [00:12:43] Speaker 01: You may please the Court. [00:12:53] Speaker 01: regarding that land would be submitted to and resolved by the government of Afghanistan. [00:12:59] Speaker 01: That was a sovereign act that is not reviewable in this court or by the ASPCA and that prevents recovery by the appellants in this case. [00:13:08] Speaker 02: But is that a sovereign act or is it just covenants? [00:13:11] Speaker 01: It was a sovereign act, Your Honor, because, again, my friend just mentioned that he tries to limit the scope of the declarations to what the Minister of Defense can do, but he neglects to mention that the bilateral security agreement, which is clearly, my friend relies upon that in their brief, [00:13:29] Speaker 01: for the treaty exception. [00:13:31] Speaker 01: It has the force of a treaty. [00:13:33] Speaker 01: And that treaty, that bilateral security agreement, expressly delegates to the Minister of Defense the ability to add additional areas to the terms of the bilateral security agreement. [00:13:43] Speaker 01: So those declarations have the force of the bilateral security agreement. [00:13:46] Speaker 01: They are essentially addenda, adding additional land to that. [00:13:50] Speaker 01: And really clarifying, because the bilateral security agreement from the outset included Fopshank because it mentioned [00:13:57] Speaker 01: other areas of which the United States has youth, which it did at the time that that bilateral security agreement was finalized, although it was turned over in the coming weeks, in the weeks after that, to the Afghan government. [00:14:09] Speaker 05: Now, let me just jump to kind of the end of that three part that you have to prove for the act of state, which has to do with applying it in this case. [00:14:17] Speaker 01: And if I might take issue with the three parts, but please ask your question first. [00:14:21] Speaker 05: Thank you. [00:14:22] Speaker 05: So what do we do with the fact that the sovereign no longer exists? [00:14:26] Speaker 05: Is there really an effectuation of the purposefulness and the act of the state when the sovereign doesn't exist anymore? [00:14:35] Speaker 01: Sure, if I may address that by first saying that the idea that there are three factors is incorrect on the active state doctrine, there are two factors that need to be addressed. [00:14:44] Speaker 01: This part is one of the additional factors that's frequently referred to as the sabatino factors. [00:14:49] Speaker 01: Numerous courts have found that the sabatino factors need not be addressed when the first two factors, which is the actual factors of the active state doctrine, when those apply, there's no need to get to this third factor at all. [00:15:01] Speaker 01: So that's our first answer to that question, but if the court [00:15:04] Speaker 01: does find that it needs to look at the additional sabatino factors, which it should not, because the Act of State doctrine applies on its own terms. [00:15:12] Speaker 01: government of Afghanistan that the United States recognizes is the government that issued these declarations. [00:15:18] Speaker 01: The government of the United States does not recognize the Taliban as the lawful government of Afghanistan. [00:15:23] Speaker 01: So although the facts on the ground may be that this government no longer is physically in charge of the nation of Afghanistan, there is no case law that appellants have point to where an unrecognized government has deposed them by force and therefore created liability [00:15:39] Speaker 01: I'm confused. [00:15:43] Speaker 05: If the government no longer exists, how can that 17-0 factor be effectuated? [00:15:51] Speaker 01: Well, that's one consideration that Sabatino said should be looked to. [00:15:57] Speaker 01: Does the fact that the government no longer exists undermine the rationale for applying it in the first place? [00:16:04] Speaker 01: But that rationale, of course, applies. [00:16:06] Speaker 01: Because in the dealings with the United States, particularly the United States military with foreign nations in which we might want to cite military bases, can be subject to the outcome of the military conflict. [00:16:16] Speaker 01: Maybe there will be less incentive to ex ante [00:16:20] Speaker 01: to make certain agreements or less binding nature for the United States would be less inclined to accept any promises made by a government that may or may not exist depending on the outcome of the hostility. [00:16:31] Speaker 01: So in this particular case, that absolutely still applies the same way, even if the court were to look to that Sabatino factor because [00:16:38] Speaker 01: ex ante, when the United States government is negotiating with the government of a foreign country in which military operations are ongoing, it needs to trust that that act of state will be trusted by US courts, even if the military conflict doesn't go the way the United States will. [00:16:54] Speaker 05: What is the actual act of state? [00:16:57] Speaker 05: Is it the declaration? [00:16:58] Speaker 05: Is it the statement? [00:16:59] Speaker 05: Is it the waiver of future remuneration? [00:17:03] Speaker 05: What is precisely the act that the minister or the government took that you think [00:17:08] Speaker 05: amounts to the act. [00:17:10] Speaker 01: The act of state is declaring that the government owns the land. [00:17:15] Speaker 01: So as you pointed out, it can be an appropriation if, in fact, the lessors own the land. [00:17:20] Speaker 01: The government of Afghanistan's position and our position is that the lessors never own the land in the first place. [00:17:25] Speaker 01: The government always own the land. [00:17:26] Speaker 05: Then why do you pay them rent for a year? [00:17:29] Speaker 01: There are some in the record. [00:17:31] Speaker 05: That seems like a problem for me. [00:17:32] Speaker 05: I mean, my government recognized them as the property owners and paid them rent for a year. [00:17:37] Speaker 05: And I've seen no evidence in this record or otherwise that you've now concluded that was improper. [00:17:42] Speaker 01: Well, that's not the case, Your Honor. [00:17:44] Speaker 01: There is evidence in the record, the 2010 letter from the Corps of Engineers stating that the lessor's claim to the property ownership was in question and that they would have to justify their ownership or else potentially have to repay the lease rent that was paid for 2009. [00:18:01] Speaker 01: So there was some effort to do that. [00:18:04] Speaker 01: There's some indication in the record [00:18:06] Speaker 01: It's unfortunately not in the joint appendix. [00:18:10] Speaker 01: I'm not entirely sure why, but it is in the record. [00:18:11] Speaker 01: It was attached to the government surreply before the board. [00:18:14] Speaker 01: There's a declaration there that explains some of those side reasons for why things happened the way they did. [00:18:21] Speaker 01: I can get into that if you like. [00:18:22] Speaker 01: And in fact, I have a copy of the declaration if you'd like to see it. [00:18:25] Speaker 05: What do you make of the fact that you have how many different court cases in Afghanistan, say, the lessors on the property, right? [00:18:37] Speaker 05: 2018, 2021. [00:18:38] Speaker 05: So you've got- Well, 2018 did not say that, Your Honor. [00:18:43] Speaker 01: So the Supreme Court of Afghanistan, which is the Supreme Court- They didn't say the lessors owned the property, fair enough. [00:18:48] Speaker 05: But they also didn't say the government owned the property. [00:18:50] Speaker 05: In 2018, it was a vacate and remand. [00:18:52] Speaker 05: You're not going to convince me otherwise. [00:18:54] Speaker 05: So skip that argument if you're going to try and make it. [00:18:56] Speaker 01: No, that's not what everyone was going to try to make, Your Honor, but they certainly definitively held that the evidence on which the lessors rely to state that they own the land did not show that they own the land. [00:19:06] Speaker 01: And it's exactly the same evidence that then a lower court came to an opposite conclusion without really addressing anything that the Supreme Court of Afghanistan had said. [00:19:15] Speaker 01: in terms of pointing out potential fraud, pointing out that these water rights were not nearly comprehensive enough to cover the entirety of the land, pointing out various other irregularities to the non-cultivable nature of the land, the fact that the Taliban government previous to the government of Afghanistan... But all that resulted in was a vacate and remand. [00:19:35] Speaker 05: It did not result in any adjudication that they don't own the land. [00:19:39] Speaker 05: So why aren't their questions a fact, at least, [00:19:43] Speaker 05: created by the combination of both 2018-2021 that questions of fact about who owns the land, such that at least the first of the two separate and independent bases upon which the board concluded this case in favor of the government is subject to questions of fact that need to go back. [00:20:03] Speaker 05: I mean, I understand there's a second independent one. [00:20:05] Speaker 05: Just put it to the side for me. [00:20:06] Speaker 05: Focus on the first one. [00:20:08] Speaker 01: Yes. [00:20:08] Speaker 01: So aside from the fact that the active state doctrine ends the case, [00:20:12] Speaker 01: definitive the last statement from afghan courts that are entitled to any recognition in the united states court is from the afghan supreme court which pretty definitively said that none of the evidence which is the same evidence that opponents continue to rely on to establish that they own the land that it did not establish that can you actually show me where that is because my clerk [00:20:31] Speaker 05: who's really good, says the 2018 decision said the maiden decision did not consider certain arguments made by the Afghan government. [00:20:40] Speaker 05: It did not say the lesser's proof was definitively insufficient. [00:20:44] Speaker 05: So that's her read of it. [00:20:46] Speaker 05: So why don't you show me where she's wrong? [00:20:49] Speaker 01: Well, 2012-21 is where that decision is located, Appendix 1221. [00:20:57] Speaker 05: Hopefully this is the English version, because I can't raise the other one. [00:21:01] Speaker 01: I believe so, yes. [00:21:01] Speaker 01: Hopefully it's the English translation. [00:21:05] Speaker 05: Because it was very helpful when you gave us the other ones. [00:21:26] Speaker 01: I'm sorry, I pointed you to the wrong page. [00:21:29] Speaker 05: No, this is the 2018. [00:21:30] Speaker 01: That's the 2018 declaration. [00:21:32] Speaker 01: I saw 2018 and I got ahead of myself. [00:21:34] Speaker 01: I apologize. [00:21:36] Speaker 01: It's in several places here, but 890 is one. [00:21:40] Speaker 01: 1240? [00:21:41] Speaker 05: I think it's 1240. [00:21:43] Speaker 00: It is in here a few times. [00:21:55] Speaker 01: And actually, the one with my annotation, so help me point you to the right place, is at 972. [00:22:21] Speaker 05: so that I can understand precisely where your argument is grounded. [00:22:25] Speaker 01: Yes, Your Honor. [00:22:26] Speaker 01: So the decision of the commission starts on page 978. [00:22:29] Speaker 01: It's correct that the third paragraph from the bottom states that the civil and public rights due on of the court of appeal in Maidan Wardock has not considered the forgery claim made by the legal representative. [00:22:44] Speaker 01: The next paragraph, however, states, the handwritten version of the above-mentioned deed differs from its preceding and succeeding deeds [00:22:50] Speaker 01: But the competent court has failed to take this matter into consideration. [00:22:53] Speaker 01: So it found that fact that the handwriting differs. [00:22:55] Speaker 01: So it didn't find necessarily that there was a forgery, but it found that the handwriting is different here. [00:23:08] Speaker 01: It further states on 979, the paragraph that follows the number five, it's only reasonable to conclude that water rights land us 14 days. [00:23:20] Speaker 01: that the courts had been oblivious to that matter. [00:23:30] Speaker 01: So although, certainly, the decision states that further investigation is needed, it raised a lot of very damning questions for the less of the appellate state. [00:23:40] Speaker 05: In the same paragraph that you just cited that you say is so damning, if it's so damning, why would they say it warrants further investigation? [00:23:48] Speaker 01: Well, again, I can see that it warrants further investigation. [00:23:51] Speaker 01: But they made findings. [00:23:52] Speaker 05: And it's not, quote, so damning if it warrants further. [00:23:54] Speaker 05: This is not a finding. [00:23:56] Speaker 05: If this Supreme Court is not saying we find, but rather, [00:23:59] Speaker 05: We have some concerns that warrant further investigation doesn't feel like a finding to me. [00:24:05] Speaker 05: It feels like a vacate and remand for further investigation. [00:24:08] Speaker 01: It certainly is that. [00:24:10] Speaker 01: Don't dispute that it's a vacate and remand. [00:24:12] Speaker 01: And of course, the 2021 decision, as the board found, did not address many of these issues that the Supreme Court raised, which is another fatal flaw in that, in addition to the fact that there are a variety of procedural issues. [00:24:23] Speaker 05: But that all was just great fact. [00:24:25] Speaker 05: That doesn't help you. [00:24:26] Speaker 05: All that does is create a fact. [00:24:27] Speaker 05: I mean, it doesn't hurt you, because you might have to go back and re-litigate it on vacate or man. [00:24:32] Speaker 05: It doesn't mean they win, but it all creates more fact. [00:24:38] Speaker 01: Potentially. [00:24:38] Speaker 01: But of course, the act of state doctrine doesn't require any findings of that. [00:24:41] Speaker 05: You want to go back to that now. [00:24:44] Speaker 05: Go back to that. [00:24:44] Speaker ?: That's good. [00:24:45] Speaker 02: Can I ask, how does the land ownership even go to the issue of rich contract? [00:24:50] Speaker 01: Well, if they don't own the land, then there can be no contract. [00:24:53] Speaker 01: There's no mutual intent to contract. [00:24:54] Speaker 01: There's no consideration. [00:24:56] Speaker 02: Well, the only case cited was that Thai case. [00:25:01] Speaker 02: And it doesn't stand for the proposition of that. [00:25:03] Speaker 02: I mean, it's not the element of rigid contract in terms of homeowner or owning the land. [00:25:09] Speaker 01: That's correct, Your Honor, but if there's no land ownership, then the contract really is probably the correct analysis is that it's void of an issue. [00:25:15] Speaker 01: They represented in the contract that they own the land, but there is nothing that they're, there's no consideration that they're providing. [00:25:22] Speaker 01: There can be no mutual intent to contract for something that they don't own in the first place. [00:25:28] Speaker 01: There can be no intent for the government [00:25:30] Speaker 01: to contract with someone who doesn't actually own what they're representing that they're leasing to us. [00:25:35] Speaker 02: So that's why... Would you agree with me, though, that the case cited in the decision, the Thai high case, doesn't stand for that proposition? [00:25:42] Speaker 01: I agree. [00:25:42] Speaker 01: I agree with that, Your Honor. [00:25:43] Speaker 01: I've reviewed that case. [00:25:45] Speaker 01: I don't think it stands for that proposition. [00:25:47] Speaker 04: So, Counsel, if we were to rule in favor of the appellant here, what sort of potential defenses could you raise [00:25:58] Speaker 04: on a potential vacant remand. [00:26:00] Speaker 04: So a follow-up question I have is wanting to talk a little bit about espousal. [00:26:04] Speaker 04: I saw some arguments raised in that regard, and I was wondering whether or not that would be something you contend would be open on a vacant remand. [00:26:11] Speaker 01: Well, I believe to the extent that the court decides to remand, it should leave that question open for the board to explain a little further. [00:26:19] Speaker 01: But the board did address that issue. [00:26:22] Speaker 01: My friend cites Chenery in their brief, which is inapplicable for a variety of reasons. [00:26:28] Speaker 01: However, the board did precisely address the issue of waiver and extinguishment of claims, although it didn't use the terms espousal and extinguishment. [00:26:36] Speaker 01: It talked about the waiver of those claims in the Sovereign Act of the Afghan government, accepting those claims for its own resolution. [00:26:45] Speaker 01: which it stated that any and all claims made against the Kempt Afan Falshank base regarding the ownership of this land are the responsibility of the government of the Islamic Republic of Afghanistan and should be resolved in full by the Juroa. [00:27:01] Speaker 01: And then a similar language in the 2018 declaration. [00:27:04] Speaker 01: the government of Afghanistan accepted those claims for itself and told the United States government, you will not have to resolve any of the claims. [00:27:13] Speaker 01: We will resolve those claims ourselves. [00:27:15] Speaker 01: And in fact, they were doing such things in their own court system, totally consistently with the declarations and the bilateral security agreement. [00:27:27] Speaker 05: OK, I have one more question before you go. [00:27:28] Speaker 05: Yes, Your Honor. [00:27:30] Speaker 05: So the board made some issue preclusion statements about the 2018 decision. [00:27:35] Speaker 05: How might they help you? [00:27:37] Speaker 01: They don't, Your Honor. [00:27:38] Speaker 01: They were not a final decision. [00:27:40] Speaker 01: That was meant to be a softball. [00:27:44] Speaker 01: The 2018 decision is not final, so the issue preclusion is not final. [00:27:48] Speaker 05: OK. [00:27:49] Speaker 05: Thank you for your honesty. [00:27:49] Speaker 05: That was great. [00:27:51] Speaker 05: All right. [00:27:54] Speaker 05: Now, you have some rebuttal time. [00:27:56] Speaker 05: Yep, can we stream that out? [00:28:00] Speaker 03: Thank you, Your Honor. [00:28:01] Speaker 03: A few points. [00:28:02] Speaker 03: So first of all, Judge Buzan, I agree that we do not need to prove ownership. [00:28:08] Speaker 03: If we have written contracts, they overstayed the lease and they didn't pay rent. [00:28:13] Speaker 03: It's property law 101. [00:28:14] Speaker 03: That's a breach of contract right there. [00:28:16] Speaker 03: They want to raise lack of consideration or they want to force the covenant of ownership in the lease agreements. [00:28:24] Speaker 03: They need to prove lack of ownership. [00:28:26] Speaker 03: That's their burden. [00:28:27] Speaker 03: They have no evidence in their favor that we don't own the land. [00:28:30] Speaker 03: But if we do own the land, it answers all the questions. [00:28:33] Speaker 03: It answers the question about intent to contract and the basic analysis under the active state doctrine, too, was that the idea was that the issue here is ownership. [00:28:46] Speaker 05: I don't know if it resolves the active state doctrine, but it probably gets you past this stage. [00:28:53] Speaker 03: We're happy for a vacate and remand. [00:28:59] Speaker 03: There was some suggestion from my friend that even if the declarations didn't take the physical land, they took our intangible claims for unpaid rent from the [00:29:14] Speaker 03: From the US government and then that's the relevant active state. [00:29:18] Speaker 03: I do not we do not understand that to be the way the board reasoned about this case and Regardless, if that's the relevant act that's not an active state because the active state doctrine only applies to some of the boundaries Within exactly that would be here in the US exactly. [00:29:32] Speaker 03: I couldn't set it better the last thing I'm sorry [00:29:36] Speaker 04: I don't know, do you want to do your last thing and let me go or? [00:29:38] Speaker 03: I'll do my last thing and maybe it'll answer your question. [00:29:41] Speaker 03: Okay, let's hope. [00:29:42] Speaker 03: There were a number of statements about the bilateral security agreement. [00:29:47] Speaker 03: I don't think that helps the government's active state doctrine argument either for a couple reasons. [00:29:52] Speaker 03: The 2014 bilateral security agreement clearly doesn't, can't mean that the Lester's don't own the land because many years later, the 2021 decision says we do own the land. [00:30:03] Speaker 03: The BSA also does not change Afghan property law. [00:30:06] Speaker 03: It actually says that it is subject to Afghan law. [00:30:10] Speaker 03: It doesn't waive any contract claims. [00:30:12] Speaker 03: To the contrary, it says no. [00:30:17] Speaker 04: I think you don't. [00:30:18] Speaker 04: You're at least arguing also that you don't need to prove that you own the land, but it's sufficient that if there are genuine issues of material theft with respect to your ownership, [00:30:28] Speaker 04: you would then win. [00:30:29] Speaker 04: Is that true or is that not true? [00:30:31] Speaker 03: Both of those things are true. [00:30:32] Speaker 03: So I think either one is sufficient for us. [00:30:35] Speaker 03: Our view is that we do not have the burden to prove ownership. [00:30:39] Speaker 03: If the government wants to raise lack of ownership, they need to prove that we don't own the land. [00:30:43] Speaker 03: They have no evidence to support them. [00:30:45] Speaker 03: But even if you think that we have that burden, we've had a minimum produced evidence that raises a material question in fact. [00:30:53] Speaker 05: Okay, I want to thank both counsel. [00:30:57] Speaker 05: You did an excellent job, both of you, with really tough issues and a lot of difficult facts. [00:31:02] Speaker 05: So thank you both. [00:31:03] Speaker 03: Thank you, Your Honor.