the morning it's a pleasure to be here i represent kuwait perl's catering company it's a company along with its parent company to me global in kuwait and saudi arabia that was the largest food services and dining facilities provider of our military both in the first and second iraq war and owned by a kuwaiti entity kuwait pearls is owned by the kuwaiti entity that's correct in that it is partially is a it's wholly owned again by a company out of saudi arabia called to  be global they're the ones who built the embassy or the barracks in the green zone that started sinking right not to my knowledge if they did i don't know but that element come and i hope  it was not them my knowledge of them states spend seven years of cases in the matters and all i know about them is that they provided dining facilities services during a lot of the time basically yours this instead basic little timeline of this case just for your information the government of iraq in the united states signed a security agreement in november of two thousand and eight and that secured agreement all of the other things had a very simple little phrase it that said that all buildings connected to the ground to the soil that exist on agreed facilities in areas according to two lists that i've never seen but all the julie report of this agreement will be handed over to the government of iraq in two stages one was immediately the time it was signed will is in june of two thousand and nine in fact it said no later than june thirtieth two thousand and nine these structures will be handed over to the iraqi government free of charge in two thousand ten killer brown signed a contract with kuwait pearls for this facility as a portable dining facility that existed in cook cook and what they that agreement was a to provide dining facility services generators refrigeration units and a lease of the building and in fact keep your paving a monthly amount of lease to kuwait perl's for using that building during that entire time factor record it three sixty nine indicates that the title only passes from k p c c our company to k b r if the option to purchase in the contract is exercised how much money is involved in this is approximately  six and a half million dollars if you look at it from a standpoint of what's left on the contract and by that i mean lease of the lease right or if you look at it from the standpoint of what the building cost to build it was eleven million dollars but the way the contract worked is they they got credit for every lease they made every lease payment and in fact that cut i'm sorry in fact the contract said that if they lease it long enough they own it so that's the way that worked  know your claims don't and on a judicial determination that your client still owns this facility which would be at odds with what the u s government saying because take your promissory estoppel for example and that's premised on the idea that was obtaining a benefit and not paying your client right that's basic promissory estoppel but as i understand it according to the u s government at least iraq iraq owned the facility after two thousand and eleven when they were itself some part of our record but it's in the agreement but to answer your other question the we have ain't we but if iraq owns it they certainly don't have to pay you under promissory estoppel theory if that premise is correct correct it's given to them now right but the reason that this doesn't get into discussions about whether or not it's owned by the iraqi government or not is because we have an independent contract between ourselves and  wrote the contract they put provisions in it various types of provisions to cover various different things in it one of the things i included in that contract was a provision that says you can do one of two things you can do mobilize at the end which take your building structure take it back or we have at our sole discretion the option to purchase now the intervening cause i'm using that word of a loose way because work is a contract case but the quote intervening cause a  all would like to point to is will the government told us after an afternoon we leased it for a year that in fact belongs to iraq we have to give it to them sorry and so we can't give it to you and then we're not going to pay for it that's k b r its position and they want to point to this security agreement in the fact that we're interfering with it or that we are asking a court to determine whether it's proper or to determine whether or not iraq should give it back or should have it and all we're asking the court to do is say look we have a  ry simple we have a bargain for exchange and that exchange says that if you he we are at the end of this contract don't give us the building back then you have to buy it there is no other option in the government is not preventing him from paying for it in fact the thing the contract doesn't even reference the possibility of iraq owning the building not even a slight way i want to ask you two questions in conjunction with that so  just can remove and you are saying in this action you either either pay us for the lease or let us pick our building up and take it home but the building cost eleven million dollars to build so it must be a massive structure it is a massive structure what does the record say they just want to dissemble it and take it out piece by piece well the record doesn't say that specifically because we don't have a record built up the second question the district court and it thirty seven minutes thirty seven thirty eight no eighteen themes to say that this building was specifically designated in the security agreement to belong to iraq but everyone else seems to say that's not correct  surrey that that means this must be one of but if you look at that agreement which is in the record it's four thirty seven in a couple of places it says these buildings will be handed over according to two lists do you think that you could just change  pursuant to and that makes it consistent with the fact say that again your i'm sorry i'm fairly well it just could be a slight misuse of terms in saying that it was in the agreement it could have been the government's position would be that it was pursuant to the agreement i see you saying yes i mean pursuant to could be a little bit more accurate it's certainly not listed in the agreement and you say you've never seen the supposedly that were convicted under the security agreement to what who owned what and when and where despite freedom of information act request every possible agency in the government i have received no list ever or is there any evidence that when these lists were put together that i've ever seen though it's not in this record no it's on a record i've ever put my eyes on it anywhere including this one which is befuddling to say the least but because it definitely says they green with there are two specific list of a buildings that will be transferred on specific day so now you're getting into construction of the agreement good segue because you're right but we're not needing the court to do that we don't need the court to decide whether it should or shouldn't be in that agreement or not because we go back to the fact we have a bargain for exchange with k b r we have a contract with them that contract is a country we're seeking to enforce this the payment for the building that partially true k b r would not allow us to take the building in fact they the record shows that we were kicked out of the site i thought because the us government said we're giving that to iraq in the truck during the transition right and so they would  fault that the government did that it isn't but k b r has an agreement with us that says if we don't if you don't develop allies will pay for it and then maybe you're going to see that and we're in the agreement to see that well there if it's not in that exact words you have two different sole discretion if at the end of the lease if they want to keep it and her position is what you kept it you may have an excuse as to why you may have a claim against the government or there but have there been any crime made in this litigation that these two lists that were supposedly we're not even to that stage yet all we know but we had a priest to discover a case in in harris county courts before we ever follow this litigation and we did exchange discovery in that and we did ask for that list and we received copies of that agreement which is why you have it in the record the list was any reason given why you were not given the live through if you don't have it was possible maybe in k b r i mean isn't it possible that the government doesn't even have a list that it just turned over things that it wouldn't get paid unless the government paid it first or the you wouldn't get paid unless the government paid k b r right so they point to a provision that says it's a i think it's period three of record three sixty five that says the u s government choose to provide funding for the services contemplated by this sub contract to be ours obligation under the subcontract is contingent on the availability of appropriated funds or argument to that paragraph is that this is the that's about the services provided under the other words in any given time the government may decide not to use those services or may cut off the services that has nothing to do with the purchase of a building his performance and it is sub contract i'm trying determine all of this ownership question that such etc we're going to have to get into high level negotiations between the united states and iraq and this that the other and give us your best position all while we don't have to get into that th my best position on that your honor is that the door the political question issues surrounding this is something we don't have to get into because we're not challenging the right of iraq or us into that agreement we're not challenging the language of the agreement it's interesting to point out the deficiencies in it but we're not challenging those all we're the only thing we're doing is saying you k b r reach your contract with us period and the fact they say well we'll have to get into this discussion as to why that's interesting for tort cases when you look at political question and even sovereign immunity cases certainly if someone saying the government's contributory negligence of the government has some act that caused your damages then therefore to those cases we have to get involved in those questions but that doesn't apply in a contract cases and for good reason because imagine a scenario where the government in this contract says all right you've got generators and hey k b r here's what i want you to do want to use those electric generators that they're providing in the contract but at the end of the month don't pay them just don't ever pay and then k b r says can't pay a normal let me we sue and they go sorry political question military made a decision that's why contra cases don't fit into these little pegs at all in fact almost every case that could be or his side in their brief is a tort case or some sort of tort or negligence or that type of case but not contract cases you know somebody merely argument is doesn't even apply in this case under franconian and other cases because the government's free to contract with third parties and we have an independent country with k b r you know i'm sympathetic to this and theory but i am wondering why didn't you just file something in the court of claims well that's the because political question wouldn't be applicable there would it go into the tucker act we could file that we saw it time to do that and i'm not suggesting that we won't do that but my fear is this after initially because they're the ones that breached we didn't have a deal with the u s government we don't have a contract with them we don't privity with them and from our standpoint where they took the building from k b r that's why they took it from because key b or had possession of why do we have to get into trying to decipher what when or why or how all these provisions of the security agreement were greeted upon why can't we just look at a breach of contract claim on the merit your honor because under the security agreement the title  the ownership of the dining facility was transferred to iraq and that is key to the contract claim whenever you look at the breach of contract claim that you have to look at how the case will be tried and the issues that will arise to court this court has made that clear in lane building instead of letting us remove it or instead of paying us for it and a political question gets into these high level intricate government decisions and i'm yet to see one but well this is a government decision well i know it is but it's a government decision so argued on the merits your honor let me let me back up and try to answer your question the political question dr it is a governmental decision it's a military decision in it invokes political question doctrine because the whole security agreement deals with the sovereignty of the united states in iraq it deals with property ownership it deals with troops it deals with occupation it deals with property it deals with jurisdiction over soldiers in civilians and contractors to do that that means they can their cake and the government can have its cake and eat it in other words like up the dining facility belt lemon million dollar facility and get to cancel the lease for services and then take the take to mean where's where's the remedy for for a sub contractor here and why would anyone contract with the government on foreign fields if this is what can happen you're wrong you're out of there are remedies against the government that you asked earlier if they could go to the court of claims as they have indicated they can government contracts have disputed provisions in them so the claims can be made against the government but they don't have a government contract they have a k b r subcontract and it doesn't say that it is subject to whatever terms the u s government decides to it's not in the record that they filed this court but there are relevant provisions that show for example that they do have remedies in that provision for example makes the government decision binding on quite pros it would be binding on them in the government contract arena as you point out quite perl's doesn't have a contract with the government k b r does but the way the disputes clauses work that if the sub contractor has a complaint about a government decision the subcontractor goes to the contractor with that and then the contractor makes the claim with the government that's the way the dispute clause works but we don't have that in the record those provisions judge barksdale going back to your question about why this is again it goes to sovereignty it deals with property disputes the military in the us government made the decisions about property ownership to avoid disputes with iraq and i don't understand why you couldn't just filed  finding that this was not something courts could handle your honor becker versus cora think the more relevant standard is probably the first factor the district court relied on factors one two four and six and i believe the first factor is probably more political here because this a constitutional commitment to a corner political department this is a foreign relations issue it's a military issue why why is it a foreign relations issue to the proper ownership of a dining facility as far  reached what contra for two reasons again it deals with sovereignty an ownership of land an occupation of the land and the government in the military might reduce produce those to list as to when this decision was made it belongs in iraq they're not challenging well the it belongs to iraq they're just saying you breached your contract with them they're saying you knew when you signed this contract perhaps you knew when you signed this contract and twenty to him that it had already been decided under this security agreement in two thousand and eight that this facility was going to belong to iraq you're on a cape to be called k b r doesn't have those lists those lists are with the government if they exist check to be or does not have those lists but it every claim under their contract deals with ownership of the property they don't have a contract claim if they can't say that they own this property they may want to show when you knew on the property when k b r knew that that actually  decision been made in iraq on this property in that that's the point and if they can show that and if they can show k b r knew or should have known when it entered this contract in two thousand and ten that it had already been decided this was going to be came to k b r twenty a lot of and this is in the record the emails on the record saying would you contact kuwait pearls to see if they would sell the dining facility in november of two thousand and eleven the government comes back and says actually that dining facility is the property of iraq under the security guard that is when was that decision actually made we don't know well apparently and if we just knew that then this case become very simple apparently it was made between the time the government asked us in the time the government made the decision in november when it was transmitted but apparently doesn't get it as far as kicking them out of court on the political question theory and also remembering that the government approved the sub contract in twenty rights the government and questions whether someone will be liable if the title is simply has simply been transferred now can we tell from the contracts contacts whe r is concerned about its liability or the government's liability i don't think you could really tell when those were exchanges going on about the contract but the point was that if the government comes in and makes this decision the royalty would be liability act claim because they are not the party to the contract and you know we don't know about i hate to decide things on a blank slate if there is a contractual dispute resolution problem that we're not aware of that's a real problem in my mind but you know they and i can they go to the court of claims without having first got in but now gotten booted out of here on the political question against k b r and then also go to the court of claims and then bring you in as a party if they had a judgment against could be are they can enforce the judgment of us could be well i mean would k b r would be going on an appeal and then the government would be without the security agreement you could have exercise your option and paid fourteen million whatever it is to become the owner of this facility but to find in your favor now on a breach of contract claim you'd basically be paying millions of dollars for something you don't own that iraq owns that's right isn't that why it depends on the security going basically prevented the contract from being effectuated absolutely and that's also consistent with the language of the security of light i don't see it that way at all well at least f look at the contract under four point five point two they've alleged breach of contract and two thirds the first theory is that k b r sell to purchase the dining facility under section four point five zero point two of the sub contract they have to pass title whenever k b r claims no they can't do that so so there is no breach of contract because it's a purchase they have nothing to sell and that's not k b r fault k didn't breach the contract in the terminal they have nothing to sell the government under the security agreement made the decision that this facility is real property that belongs to the country of iraq and so there is no evidence in the record that we knew it but again the breach of contract comes back to the nobody's produces mysterious list if they even exist i mean that's why i'm having a difficult time seeing political question either iraq on on the building or it didn't what so why is that such a big political question well it could just get a date it's because of why the government made this determination that's a political question one of the issues as to why the government did this under the policy there's a two thousand and nine policy memo on this and the government says that the base is needed to be transferred in full operating condition during this process of withdraw all so that the iraqi forces can come in and immediately engage in force protection and security they had to be able to transfer these facilities intact that's a no other reason that it's a political question that that's a military and a political strategic decision in a foreign policy relations decision as to whether you want to pull these buildings out and what the iraqi forces come in and build new dining halls and new dining facilities or whether you're going to give it to a woman attorney method so whenever the u s forces withdraw and that was going on through twenty one so that when the u s forces withdraw the iraqi forces can stay step behind and immediately take over force protection duties that is a political and the foreign relations  surely don't recall that in the brief you know we have a lot of breeze a lot of words written but this sounds new to me and it's a record of what it was and i thought it was on the list a list were created before this ever happened right in two thousand and eleven and then it's just an interpretation of this building structure language right that i'm that some military or state department official makes the list or created back at the time security agreement was going on in two thousand and eight which was effective in two nine and it's not even clear from the security agreement that all of the properties to be transferred are on those this list or whether these are the properties to be transferred on january two thousand thirty one twenty eleven so you have this happening in phases you have one list which says these transfers will happen immediately you have another list it says they'll happen in zero nine you have u s forces pulling out of villages and towns in two thousand and nine didn't you have all u s forces withdrawing from twenty eleven and so it's not clear that those two listing coppice all of the properties to be transferred or simply the first two of properties to be cranford it just isn't clear or disagreement many many times and you can't determine that that in fact those list are to be all the properties or just the property stranger that just don't understand why this game go through discovery and summary judgment or in a trial on the merits or whatever and i just don't see how this is getting into any big sovereign dispute between a rack in the united states and such attaches far just reach a contract and what transfer of facilities for the military whenever the us is going to let me give you a another example because supposed that a subcontractor had been hired to do maintenance  on equipment because of deterioration due to the desert sands and the main into greenman is you know five years flat five years and the troops are withdrawn and the government tells k b r troops  on out you don't need to pay for maintenance because we're given all these vehicles to iraq which we did in fact so k b r under your theory would be intitled to breach the lease of a fixed term lease on the same grounds which is a political question i think lord lucan don't look the terms of the contract but it may well be there is nothing in the terms of this contract that is dependent on what the government does this is a plain and simple sub contract and that's why i say this i don't see that i have a great difficulty applying political question to a contract dispute your honor this contract it is implicit that the government's actions are relevant to that because the government is the client under the sub contract there's a government to come to the client in any subcontract anywhere but especially overseas and we're theater and the exhaust their remedy and therefore you know it's not a right disputes not right that there would be other arguments as well as merits arguments of the case ever got to that stage going to twelve but under the political question doctrine for jurisdictional purposes out there is no reason that the political question doctrine shouldn't apply as a dozen a tort case to a breach of contract case but because again you're simply looking at whether the baker versus carr factors are implicated in here the decision by the military that the property belongs to iraq invokes the first bike or versus car factor and under these facts under this contract the ownership of the property is essential to determining how the case will be tried because under four point five point two there is no breach because they have to transfer title before there's any obligation to pay and under their second breach of contract theory and that is that k b r di while the plaintiff to come in and remove the dining facility that's under a separate provision of the sub contract it's eight point eight point one and under that provision they are only allowed to move what term subcontractor in the military is determined that quite perl's does not and that asset so that's held this case will be tried you look at their claims the way it would be defended under both of their breach there is they have to own the property before there can be any proof of their claim and that's essential and it goes to the heart of the case and that's why the political question doctrine would apply in this case on a breach of contract the court has no further obviously the us government gave k b r direction about what to do with the property k b r did that and they kept it but they kept using it and didn't pay for it and would allow us to take it into and pay for it so if i was to set theory of that they kept  mean you know you might have two or three months worth of rent right on the go i think actually you're out of there in the end maybe if it's in the regular i can't say the site but a pretty sure that there it's in the record that they had it for a whole nother year at least and then another subcontractor may have come in after that but i'm pretty sure that's in the records unfortunately of the site from me i don't think that's in dispute but but even so the point being is that we don't have to get into a discussion about whether iraq owns it now we owned it k b r wouldn't let us have it back and they didn't pay for it but we used to play was adjourned boken one is a pure option they have which is purely discretionary to buy it so i don't see how that can serve as a breach of contract because it's we are the united states military yes depends on your perspective k b r was our boss writes a k b r told us we had to leave and so we did now they say we told you that because the government told us that and i understand that's their position and fine but our we were saying the way these things work is quick pearls and didn't have contact with the client which is the u s government didn't go in and meet with the military to have discussions about any of the stuff keep your was o boss in in fact our agreement makes it very clear one of the things that i pointed out earlier but didn't say very clearly i don't think is all of these defenses deal with either direction or discretion of k b r you can if you look at it was the military exercising full direction and full discretion or was k b r exercising so you know i have a real problem about contract actions where we don't have the contract the whole contract in front of us and i realize that many of these military subcontracts have many provisions and so on but but still don't we need to see the whole contract which may include some kind of of dispute resolution provision before we can really be thawed whether it's a political question well if the other parts of the contract are relevant to the discussion and i would agree i don't have that particular prisoner for me right now but i've read these contracts a million times of the last seven years it's i don't want to speak out of turn about what the five times courts have a little different view of what's relevant in contract absolutely but apparently both of these parties decided that that part of the country wasn't something you need to see the result of this issue and certainly from our standpoint we were just focusing on what they did or didn't do with is there or is there not a dispute resolution provision where there are a couple there's one that deals with whether you go to arbitration or not and that kind of an issue there's a some of these the perp contracts i don't remember this one has a but summa does have a pay when paid clause on a focus on the word women but they're not arguing that in this case and we've actually that's my view the pay will pay close is a timing issue it's been decided by a gulf coast case in texas and then there's another disputes cause it deals with government direction but i don't believe in that just apologize i don't have the language in my head to tell you but i don't believe it's something that's perhaps in this country or we would have been concerned about we certainly aren't so yes there are some other provisions in there but i don't think they deal with this particular issue but what i was going to say about the direction of discretion thing is that k discretion in direction began when they took on this or whatever the device that uses are writing out the contract because this is not a situation where you have in lots of these cases the dam cases in the military product cases and even the case