[00:00:00] Speaker 01:
The next case for argument this morning is case number 24-1644, Mutakabir v. Secretary of State.

[00:00:11] Speaker 01:
Mr. Kasimi?

[00:00:13] Speaker 01:
Yes.

[00:00:13] Speaker 01:
You reserve three minutes for rebuttal in this case.

[00:00:15] Speaker 01:
Is that accurate?

[00:00:16] Speaker 01:
Okay.

[00:00:16] Speaker 01:
You can proceed when ready.

[00:00:17] Speaker 00:
Good morning, Your Honors.

[00:00:18] Speaker 00:
May it please the Court.

[00:00:19] Speaker 00:
Anayat Kasimi, counsel for Appellant Abdulmutakabir.

[00:00:24] Speaker 00:
Your honors, the board's ruling is not consistent with case law established by this court on at least four issues of law addressed in the ruling, each of which presents sufficient basis for reversal of the board's ruling.

[00:00:37] Speaker 00:
One, the board's reading of the plain language, the expressed language of the leases is inconsistent with the case law established in this court in two areas.

[00:00:50] Speaker 00:
First,

[00:00:52] Speaker 00:
The board's ruling fails to properly and fully analyze express language of the leases that's relevant to return of the premises.

[00:01:01] Speaker 00:
The law established by this case requires that a contract must be construed in a manner that gives meaning to all of his provisions and makes sense.

[00:01:09] Speaker 00:
I draw the court's attention to MACB construction, United States 97, F3rd, 1431.

[00:01:15] Speaker 00:
Also, Gold, Inc., BUS 935, F2nd, 1271.

[00:01:22] Speaker 00:
This court ruled that contract interpretation... What specific provision are you referring to that you say is inconsistent with... Your Honor, the reading of the provisions, articles 8 and articles 14 of the lease is in particular.

[00:01:39] Speaker 00:
What in particular in article 8... In particular, Your Honor, what the court says is, first of all, the board says that there's the language

[00:01:50] Speaker 00:
The leases did not require the return of the premises.

[00:01:53] Speaker 01:
Could you point us to a JA page while you're answering the questions posed by Judge Lynn?

[00:01:59] Speaker 00:
The ruling of the board is in Appendix 9.

[00:02:14] Speaker 00:
So in Appendix 9, the board says that

[00:02:21] Speaker 00:
The lease language does not require the return of the premises.

[00:02:24] Speaker 00:
Now the lease, there are multiple leases here.

[00:02:26] Speaker 00:
They vary.

[00:02:27] Speaker 00:
At least one of the leases has language that specifically requires or discusses return of the premises.

[00:02:35] Speaker 04:
And I draw the... What language are you referring to?

[00:02:38] Speaker 00:
I'm referring to Article 8 of the Champagne lease.

[00:02:45] Speaker 04:
Give me an appendix page, please.

[00:02:59] Speaker 00:
That would be appendix 65, Your Honors.

[00:03:08] Speaker 00:
The second flaw with the board's ruling.

[00:03:12] Speaker 04:
We're at page 65, so what specific provision are you referring to?

[00:03:18] Speaker 00:
This is HC, the tenant will

[00:03:23] Speaker 00:
Telen will not be responsible for restoring premises to any condition for any changes or damages to the premises.

[00:03:29] Speaker 00:
The premises are leased as is condition and may be returned in as is condition as of the date of the lease, expiry, or termination.

[00:03:37] Speaker 04:
Where does it talk about?

[00:03:39] Speaker 00:
It may be returned.

[00:03:40] Speaker 04:
Where does it talk about return?

[00:03:43] Speaker 00:
The language may be returned in as is condition.

[00:03:47] Speaker 04:
Your Honor, the... That's the condition of the premises, not... Correct, and that was the reasoning of the board, Your Honor.

[00:03:53] Speaker 00:
That was the, that was the condition of, that was the reasoning of the board.

[00:03:56] Speaker 00:
And Your Honor, our position is that, that, that interpretation renders the word return superfluous and meaningless.

[00:04:07] Speaker 01:
What specific provision from the lease agreements are you relying on for your physical return argument?

[00:04:15] Speaker 00:
Your Honor, the leases are different.

[00:04:16] Speaker 01:
In this particular- Why don't we look at the lease that we've been looking at with- Correct.

[00:04:20] Speaker 01:
This is the champagne lease.

[00:04:22] Speaker 00:
Correct.

[00:04:22] Speaker 01:
And tell us which provisions specifically.

[00:04:24] Speaker 01:
That would be 8C.

[00:04:25] Speaker 01:
Wait, wait.

[00:04:26] Speaker 01:
Let me ask the question so we can keep our record clean and then you answer, okay?

[00:04:29] Speaker 01:
Yes.

[00:04:29] Speaker 01:
Okay, good.

[00:04:30] Speaker 01:
So, I just want to know what specific provision in the champagne lease are you relying on for the physical return requirement?

[00:04:38] Speaker 01:
Is this 8C or is it something else?

[00:04:40] Speaker 00:
8C, Your Honor.

[00:04:41] Speaker 01:
And only 8C.

[00:04:42] Speaker 01:
Is that right?

[00:04:42] Speaker 01:
Correct.

[00:04:44] Speaker 03:
So, but you have to concede 8C doesn't say

[00:04:47] Speaker 03:
in all events, even acts of war or if the government terminates for convenience, the government as tenant must return the physical premises to the landlord.

[00:05:00] Speaker 03:
HC doesn't speak to any of that.

[00:05:03] Speaker 03:
So it's an argument from implication, right?

[00:05:05] Speaker 03:
There's no express provision that says the government must return the property

[00:05:12] Speaker 00:
There's a question, Your Honor, of what's the dominant purpose of this provision.

[00:05:17] Speaker 00:
In our view is that the dominant purpose of this language in HC is that the property should be returned in as is condition and not the condition of the property because otherwise you would render the word return useless and meaningful.

[00:05:34] Speaker 04:
But isn't the premise of that paragraph HC clear from the first sentence in that paragraph?

[00:05:41] Speaker 04:
talks about tenant will not be responsible for restoring the premises to any condition or for any changes or damages.

[00:05:52] Speaker 04:
And then it says the premises are leased as is and may be returned in the as is condition when the lease expires or terminates.

[00:06:02] Speaker 04:
It's talking about the condition of the premises.

[00:06:05] Speaker 04:
It's not talking about the physical return of property.

[00:06:11] Speaker 04:
I mean, why am I wrong?

[00:06:13] Speaker 00:
That is, in this particular lease, that's correct, Your Honor, that it is talking about the condition.

[00:06:18] Speaker 00:
But the word return is mentioned in there.

[00:06:20] Speaker 04:
Well, yes, but it's in the context of that paragraph.

[00:06:26] Speaker 04:
And imposing a separate physical return obligation is, to me, is a bit of a leap.

[00:06:38] Speaker 00:
Our interpretation, Your Honor, is that the board should have looked at the word return as meaning that there was a requirement to return the premises in a condition that it was.

[00:06:50] Speaker 03:
I understand your position.

[00:06:51] Speaker 03:
What about Article 11, which the board also relied on damages to the premises on A66?

[00:07:01] Speaker 03:
Doesn't that provision

[00:07:03] Speaker 03:
indicate the parties here bargained for the landlord is going to bear responsibility for all risk of loss or damages to the premises, including under these circumstances, I would suggest that's at least the question.

[00:07:17] Speaker 03:
And your position that return requires the physical return under these circumstances would seem to render Article 11

[00:07:32] Speaker 03:
if not superfluous, it would change the way the parties allocated these risks.

[00:07:38] Speaker 00:
Your Honor, Article 11 discusses damages to the premises.

[00:07:47] Speaker 00:
The board found that there was no damage to the premises.

[00:07:50] Speaker 00:
And also Article 11 exempts or accepts situations where it's the fault of the government that causes any damages to the government.

[00:07:58] Speaker 00:
And our argument is that in this case,

[00:08:01] Speaker 00:
It's the government's breaches that has caused the tenant not to, the landlord not to receive his property back rather than whatever the Taliban takeover, which is what the board cites here.

[00:08:13] Speaker 00:
Because as a matter of fact, the board found that the Taliban takeover had no impact on the premises or on the properties.

[00:08:19] Speaker 00:
There was no damage to the properties.

[00:08:21] Speaker 00:
It was just a decision of the government to abandon the properties.

[00:08:25] Speaker 01:
You said the government's breaches.

[00:08:26] Speaker 01:
What in particular are you referring to in terms of what you're contending would be the breach?

[00:08:31] Speaker 00:
Your Honor, the facts of this case are complex, but these are properties that were released by the U.S.

[00:08:38] Speaker 00:
Embassy.

[00:08:38] Speaker 00:
The U.S.

[00:08:39] Speaker 00:
Embassy and only the U.S.

[00:08:40] Speaker 00:
Embassy had access to them.

[00:08:43] Speaker 00:
Obviously, these are the facts that the Council for the Government may not fully agree, but I draw the Court's attention to the transcripts of some of the depositions that are in the Joint Appendix, and I'll give a citation in a second.

[00:09:01] Speaker 00:
In Mr. Mutakabe's case, the embassy had actually walled these properties.

[00:09:06] Speaker 00:
They were gates, embassy gates that protected these properties because they had become part of the premises of the embassy.

[00:09:14] Speaker 00:
Those gates were locked.

[00:09:16] Speaker 00:
They were sealed.

[00:09:16] Speaker 00:
Nobody was authorized to go into it.

[00:09:18] Speaker 00:
The landlord never had the ability to get to those properties.

[00:09:22] Speaker 00:
As such, when the embassy left,

[00:09:24] Speaker 00:
To this date, as far as the Taliban are concerned, they're part of the embassy.

[00:09:28] Speaker 00:
It's not that the properties were damaged, but they're sealed by the Taliban as part of the premises.

[00:09:32] Speaker 01:
What do you think are the specific actions the government would have needed to take, in your opinion, to return the property?

[00:09:39] Speaker 00:
There are two things that the government could have done.

[00:09:41] Speaker 01:
One is that the government would be required to do, is what I want to know.

[00:09:45] Speaker 00:
The government was required to protect the premises under the leases and under the law.

[00:09:49] Speaker 00:
That's an argument.

[00:09:51] Speaker 00:
They made an arrangement for some of the premises to be transferred, control of them to be transferred to the government of Qatar under an agreement where the embassy and a number of other premises that the embassy had were transferred to Qatar.

[00:10:06] Speaker 00:
Qatar managed those and the government had the option to do that with respect to these premises.

[00:10:13] Speaker 00:
The government chose not to do it.

[00:10:15] Speaker 00:
Second thing is that the government had the option to terminate these before the government evacuated.

[00:10:21] Speaker 00:
They were looking into it.

[00:10:22] Speaker 00:
The facts showed that they were planning on all of these things, but they did not communicate until they actually evacuated.

[00:10:29] Speaker 00:
Then weeks later, they send notices by email.

[00:10:33] Speaker 00:
The government has taken absolutely no action whatsoever to facilitate the return of the premises to the landlords.

[00:10:40] Speaker 01:
And you're contending that we need to rely on HC to get to these sort of obligations you're saying the government would need to?

[00:10:48] Speaker 00:
Your Honor, not just HC, but also the implied duties, also the Afghan law requirements.

[00:10:53] Speaker 00:
This lease is governed by Afghan law.

[00:10:56] Speaker 00:
And Afghan law has specific provisions that deal with the return of the premises.

[00:11:02] Speaker 00:
Also, the implied duty of good faith and fair dealing.

[00:11:07] Speaker 00:
The landlord here,

[00:11:09] Speaker 00:
never intended for his premises to be lost in perpetuity because of some action of the government.

[00:11:16] Speaker 00:
That's the situation right now.

[00:11:18] Speaker 00:
He does not have his premises back.

[00:11:19] Speaker 00:
He does not have the properties back.

[00:11:21] Speaker 00:
So what we're asking the court to do is to look at all the four factors that I mentioned, which is the misreading of the express language of the leases.

[00:11:29] Speaker 00:
And again, Your Honor, the leases vary from one lease to another, the language.

[00:11:34] Speaker 00:
the implied obligation to return the premises that should be read into the leases, Afghan law requirements, and Afghan law is the governing law in these leases, and then the implied duty of good faith and fair dealing, which requires... Please contend is the import of, on Appendix Page 70, Article 17.

[00:12:00] Speaker 01:
So as you can see in 17A it talks about this written agreement constitutes the entire understanding.

[00:12:33] Speaker 00:
Your Honor, this is a standard provision, which is included in all the leases, obviously.

[00:12:40] Speaker 00:
I don't think that that has any impact on what we're asking.

[00:12:46] Speaker 03:
You say that there are some differences in the contracts, but I don't think you've argued that the outcome should be any different for any of the properties that are at issue in this case.

[00:12:56] Speaker 03:
Is that right?

[00:12:57] Speaker 00:
That is correct, Your Honor, because if there's any differences, it's in the express language of the leases, not, I think, the implied obligation and the Afghan law obligation and the duty of good faith.

[00:13:11] Speaker 03:
The differences in the express language make no difference to the issues before.

[00:13:14] Speaker 00:
It does make a difference.

[00:13:15] Speaker 00:
There are slight differences, but at the end of the day, we believe that the dominant purpose of HC, the use of word return in HC,

[00:13:26] Speaker 00:
was the return of the premises.

[00:13:28] Speaker 00:
Some of those did not contain it.

[00:13:29] Speaker 00:
And we believe that the board should have read that into it because it's an essential term that's missing.

[00:13:35] Speaker 00:
A lease without a return obligation is not a lease.

[00:13:39] Speaker 00:
When the landlord and tenant entered into a lease agreement, it was their expectation from day one that at the end of the lease, the premises would be returned to the landlord.

[00:13:47] Speaker 00:
That's an essential term.

[00:13:48] Speaker 04:
There were some slight differences from lease to lease.

[00:13:53] Speaker 04:
Which of the leases contains the language most favorable to you?

[00:13:59] Speaker 00:
In the case of Mutakaber, this is the only lease to my knowledge that contains the word return.

[00:14:06] Speaker 00:
There are other leases that contain

[00:14:08] Speaker 00:
obligation to maintain the premises in a tenantable condition, which means, and our interpretation is that it was the landlord's expectation that the party would, the premises would be protected and preserved, and at the end of lease term, you would be able to lease it to other tenants.

[00:14:29] Speaker 01:
So is it true then that the Champaign Agreement would have the language that you contend is most favorable to you on this return argument you're making?

[00:14:38] Speaker 00:
Your Honour, that is correct, yes.

[00:14:41] Speaker 00:
That's the only, of Mutaka-Beta cases, leases, that's the only one that contains the word return in.

[00:14:47] Speaker 04:
That's the paragraph 8C we were talking about earlier.

[00:14:50] Speaker 00:
That is correct.

[00:14:51] Speaker 00:
Also paragraph 14, which is the termination for convenience clause, has no disrequirements.

[00:14:57] Speaker 00:
And it's our belief that some of the leases, not in this particular case, but in the next case we'll argue, there is a specific language with respect to return.

[00:15:08] Speaker 01:
So Council, you are almost through all of your rebuttal time.

[00:15:11] Speaker 01:
Do you have any final thought, or do you want to reserve the, I guess, eight seconds left?

[00:15:15] Speaker 01:
And I will give you a little bit more.

[00:15:17] Speaker 00:
I would appreciate the rebuttal time, yes.

[00:15:23] Speaker 01:
Thank you.

[00:15:24] Speaker 01:
All right.

[00:15:24] Speaker 01:
Mr. Rale?

[00:15:27] Speaker 01:
You may proceed.

[00:15:28] Speaker 02:
Thank you, Your Honor.

[00:15:30] Speaker 02:
May it please the Court?

[00:15:31] Speaker 02:
The question in this appeal is whether in order to terminate the leases at issue, the United States was required to take military or diplomatic action to ensure that the Taliban would permit Muddicabor to retake control of his properties after the United States evacuated the properties and terminated the leases.

[00:15:46] Speaker 02:
And the answer to that question is no, the United States was not required to do that.

[00:15:50] Speaker 02:
The leases provided that the United States could terminate them for convenience by providing written notice to Muddicabor, and none of the lease provisions

[00:16:02] Speaker 02:
or to terminate the leases.

[00:16:04] Speaker 02:
Rather, multiple provisions of the leases, paragraphs eight in the lease, paragraphs eight, paragraphs 11A, demonstrate that the United States was not responsible for the harm caused by the actions of hostile third parties like the Taliban.

[00:16:20] Speaker 02:
And so the CBA's decision in this case should be affirmed.

[00:16:28] Speaker 02:
Just a couple points.

[00:16:31] Speaker 02:
in response, mentioned in the opening that there were gates, that these properties were behind gates.

[00:16:42] Speaker 02:
There's no dispute in this case that the Taliban was who prevented Muddicabers representative from accessing the properties after the United States evacuated and the leases were terminated.

[00:17:01] Speaker 02:
I thought the court seemed to have a good understanding of the terms of leases.

[00:17:05] Speaker 02:
I'm happy to answer any questions about those or any other issues the court has, but otherwise.

[00:17:11] Speaker 03:
You could have, it sounds like, done it differently, maybe terminated earlier at a time when the U.S.

[00:17:20] Speaker 03:
government still controlled the physical access to these premises.

[00:17:26] Speaker 03:
Why doesn't that give rise to at least an implied obligation?

[00:17:30] Speaker 03:
knowing you have to return a property at the end of a lease, why isn't there some merit to that argument?

[00:17:39] Speaker 02:
Well, the United States had the right to terminate for convenience at any time during the term of the lease.

[00:17:45] Speaker 02:
So yes, it could have terminated in June of 2021.

[00:17:50] Speaker 02:
It also could have terminated in September of 2021 when it did.

[00:17:54] Speaker 02:
It had that right.

[00:17:56] Speaker 02:
The fact that it had already evacuated

[00:18:01] Speaker 02:
upon the advance of the Taliban on Kabul doesn't eliminate the right to terminate for convenience.

[00:18:10] Speaker 01:
My understanding is that certain property was pit under protection.

[00:18:17] Speaker 01:
I don't know if that's the right phrase, but my understanding is not these, not anything that's in this case or even the next case.

[00:18:24] Speaker 01:
Can you give us any insight regarding why

[00:18:28] Speaker 01:
these wouldn't fall within the ones that you would have been trying to protect?

[00:18:33] Speaker 02:
The United States simply made a decision that these weren't properties that it wanted to put under the non-binding monitoring agreement with Qatar.

[00:18:43] Speaker 02:
And that was a diplomatic decision that was made that it preferred to terminate these leases.

[00:18:51] Speaker 02:
It didn't feel the need to attempt to go forward with them.

[00:18:55] Speaker 02:
And so that's the reason.

[00:18:58] Speaker 03:
How does your understanding of the termination for convenience provision not render 8C, at least in the Champagne lease, superfluous?

[00:19:06] Speaker 03:
It's got that reference to return.

[00:19:09] Speaker 03:
Isn't your view, it's at page 865, Council will direct us to it.

[00:19:15] Speaker 03:
Isn't your view of how broadly the termination for convenience right is, doesn't it have the effect of rendering that portion of 8C superfluous, at least in the Champagne lease?

[00:19:26] Speaker 02:
No, the provision of HC was meant to describe the condition of the property at the end of lease, whether expiration or termination.

[00:19:37] Speaker 02:
And that's, you know, the tenant will not be responsible for restoring the premises to any condition or for any changes or damages to the premises.

[00:19:44] Speaker 02:
Premises are leased in as-is condition and may be returned in the as-is condition as of the date of the lease expiry.

[00:19:51] Speaker 02:
or the termination.

[00:19:52] Speaker 02:
So at the termination, the government gave notice to Uduk-Kabir that it was terminating the leases.

[00:20:03] Speaker 02:
The United States was no longer controlling access to that area.

[00:20:10] Speaker 02:
The Taliban has apparently taken control of that area.

[00:20:17] Speaker 02:
From the United States perspective, Muddicabor had an unfettered right to access his property at that time.

[00:20:23] Speaker 02:
He was no longer bound by the terms of 7A to, you know, have an escort or anything like that under the leases once the termination was effective.

[00:20:32] Speaker 02:
So, you know, it's the Taliban.

[00:20:33] Speaker 03:
On the other hand, the U.S.

[00:20:34] Speaker 03:
did nothing to return the property to the landlord.

[00:20:39] Speaker 02:
Well, the United States, I mean, that was effect under the circumstances that was the return of the property was that

[00:20:46] Speaker 02:
He's no longer bound by, for example, Article 7A of the leases that would require him to have an escort and have approval of the United States to go to the property.

[00:21:00] Speaker 02:
He's free, from the United States' perspective, to do whatever it is he wants with his property.

[00:21:07] Speaker 02:
It's the Taliban that's preventing Muddicabor from doing that.

[00:21:14] Speaker 02:
Unless the court has any other questions, we respectfully request that the court affirm the board's decision.

[00:21:20] Speaker 01:
Thank you, counsel.

[00:21:23] Speaker 01:
I will give you, because we asked you a few questions, two minutes of rebuttal.

[00:21:26] Speaker 00:
Thank you, your honor.

[00:21:28] Speaker 00:
I mentioned earlier about the facts of the circumstances of the premises.

[00:21:32] Speaker 00:
This is Appendix 1140 to 1298.

[00:21:35] Speaker 00:
Paul Hendrix is the embassy's regional security officer.

[00:21:39] Speaker 00:
His deposition transcript, he'll explain what the premises were and where they were located.

[00:21:44] Speaker 00:
and how challenging it was.

[00:21:47] Speaker 00:
What counsel just said is that it's the Taliban that did not allow the landlord to get his access to his property.

[00:21:54] Speaker 00:
That's not entirely accurate.

[00:21:56] Speaker 00:
It is true that the Taliban did not let him, but the Taliban told him that this is embassy.

[00:22:00] Speaker 00:
You cannot go into the embassy because this is the gate.

[00:22:03] Speaker 00:
There are two gates and past those gates is all considered embassy premises and they have sealed that.

[00:22:09] Speaker 00:
So that's one thing.

[00:22:10] Speaker 00:
Second, you've never asked the government to take diplomatic or military action to cover these.

[00:22:14] Speaker 00:
You simply stated the government had a duty to protect these premises and they had a duty, obligation to return the premises.

[00:22:21] Speaker 01:
They could have done it.

[00:22:22] Speaker 01:
How did you expect them to protect the premises if it wasn't with military action?

[00:22:26] Speaker 01:
What did you expect them to do as a practical manner?

[00:22:28] Speaker 00:
They could have entered into the Doha agreement, the arrangement with the Qatari government that protects all the premises.

[00:22:34] Speaker 00:
They could have come in, made arrangements for landlords to take over.

[00:22:37] Speaker 03:
Isn't that diplomatic action?

[00:22:39] Speaker 00:
It's diplomatic action, but they've done it.

[00:22:42] Speaker 00:
They could have done it.

[00:22:43] Speaker 00:
They have done it.

[00:22:44] Speaker 03:
You do or do not expect them to have to take military or diplomatic action?

[00:22:50] Speaker 00:
Your Honor, we do not expect the United States government to take military action to recover those premises.

[00:22:57] Speaker 00:
What we expect is to do what they could have done.

[00:23:00] Speaker 00:
And the facts clearly established that they could have done more than what they did.

[00:23:04] Speaker 00:
In the entire timeline, there was only one email that they sent.

[00:23:08] Speaker 00:
The government never terminated the contracts for convenience.

[00:23:11] Speaker 00:
They terminated on force majeure grounds.

[00:23:14] Speaker 00:
My understanding is that they waited

[00:23:17] Speaker 00:
to so that they could terminate under force majeure.

[00:23:19] Speaker 00:
But then the board found that there was no force majeure.

[00:23:22] Speaker 00:
So the board constructively converted the termination to termination for convenience, which we believe requires return of the premises and has other obligations with it.

[00:23:31] Speaker 00:
So there was no, they had the option to do.

[00:23:33] Speaker 01:
The time is running out.

[00:23:34] Speaker 01:
Do you have one final thought that you want to leave the court with?

[00:23:36] Speaker 00:
No, Your Honor.

[00:23:37] Speaker 00:
Thank you.

[00:23:38] Speaker 01:
Thank you.

[00:23:39] Speaker 01:
Case submitted.