ok thank you ma'am please the court my name is daniel resumed and i represent appellants the lobby foundation and fifth avenue company the district court held after a bench trial that these two u s entities won a new york corporation and the other in new york partnership were responsible and liable for billions of dollars worth of judgments based on unsatisfied judgments that had absolutely nothing to do with them liability here was premised on terrorism judgments but here the plaintiffs groups of creditors to iran stipulated and the district court found that there was no evidence that our clients had anything to do with the acts of terrorism giving rise to these judgments or to terrorism generally the iran creditors have asserted that defendants nonetheless are liable under the terrorism exception to the foreign sovereign immunity act under the terrorism risk insurance act because they allegedly provided material services or material function or purportedly controlled or organs of iran but as with the forfeiture case this is not the first time that this matters before this court in the previous appeal this court reversed and remanded into very specific issues both of which dealt with the terrorism risk insurance act which all called tria first whether these entities qualify as agencies instrumentalities for purposes of tria and second whether these were blocked assets being sought despite the mandate that said explicitly defendants were statutorily disqualified from being agencies or instrumentalities under the foreign sovereign immunit act the district court found that the partnership the fifty six fifty fifth avenue company could in fact be considered as to whether it was an agency instrumentality and in fact then found it was that was against the mandate the district court then misapplied the standards under the f s a andrea specifically it applied an overly broad definition of agency instrumentality under tria despite this court's finding incursion bomb and despite the context of that standard and due process the district were also improperly relied on the historical analysis as to whether these two entities were agencies instrumentalities under tria and the f s a and that was explicitly true with not only the agency instrumentality analysis but also the walk property analysis let me start with the foreign sovereign immunity is that the mandate rule forecloses relive a geisha of something that has been explicitly or implicitly decided that is the case here despite the reservation any reservation that the plaintiffs may have made defended very explicitly put at issue the district court's failure to grant summary judgment on the f s a claims including the sixteen tenby three claim we raised that and the issue was resolved this court in its mandate made clear in the final paragraphs defendants do not qualify as a matter of law as the agencies are instrumentalities of the foreign state of iran such that defendant's properties may be turned over to help satisfy plaintiff judgments under the f s a citing section six hundred three b the definition it sent back on quote only two issues tria issues nonetheless the district or consider them it was understood by all that the fs i was over sixteen ten b three issue it did your honor and just wesley as is best position to answer that question but i will answer it in advance and the answer to that your honor is it was explicitly and implicitly decided it only sent back two issues they had nothing do with as i say more importantly your honor it certainly was done implicitly the definition of agency instrumentality as set forth in sixteen zero three be it applies to the entire f s a you have to go through six you know three because they didn't articulate the sixteen tenby claim didn't litigate the six hundred ten b clean in front of us had the opportunity to do that and you press the issue on the other side there's a footnote that says that they didn't raise her hand and so therefore it's go the and the definition of agency or instrumentality is far more forgiving and less specific it's based on plain english i mean it's a believe me this was quite the experience i mean you have that same term within the same statute meaning two different things  i've been a judge a long time and this is the first time that's ever happened you're bilious spinning in his grave right now but so tell me why the judge was wrong in saying that under t r a that you are not an to muster a majority of the active judges of this corps well i think not because in the supreme court's recent decision in the supreme court's recent decision in ruben the court read th specifically section sixteen ten as including the tree at the tria which is a no to sixteen tand that decision undermines this idea that when you're talking about agency instrumentality of a foreign state where the foreign sta terrorist party you can have different definitions we think that's not the right result we think it should be the same a definition that that requires the logistics with regard to regroup and it was not the issue that was visibly in front of the court correct it was not what what ruben calls into question is the panel's assertions sixteen tennis standard matter sixteen tenets and arm the definitions are contained within the rest of the statute but that's but that's the only assertion that ruben undercuts the context of what we wrote with regard to your case it is it reads them all as one unified body and this court and co their own cardona said that fs i must be read as quote a coherent regulatory scheme examined to recognise that because you're talking about terrorist parties which don't happen to be sovereign states they happen to be and like isis and other things like that and so to to encumber to encumber the methodology w statehood doesn't make any sense it doesn't your honor when you're dealing with foreign terrorist organizations but when you're dealing with a foreign state i think it does i think it does make sense to use the same definition this court term agency has matelot in is one thing  under the t r a when you're dealing with iran but another thing when you're dealing with well there's certainly reasons to do that and certainly going to be great so we're not suggesting they have completely different meanings but we are suggesting that when you're talking about need of a foreign state what has to recognize is this court did in rothstein that a foreign state may have all sorts of services provided may have all sorts of functions that are necessary to its operations and people who provide these services there may in the broadest way possible the district didn't consider not only what's a material function but the majority function of a terrorist what is material service to our on behalf of a terrorist what is to be owned controlled or directed by a terrorist that idea of a terrorist is completely removed and then you go to a foreign state and then we're dealing what's a service to a foreign state if mt sinai hospital opened a branch in iran right now all of a sudden mount sinai hospital would be the equivalent of iran and all of their assets could be seized in the last three weeks to bank standard chartered muda credit bank admitted to providing funds transferring funds to iran and behalf of iranian accounts all the sudden goes to banks because they provided an important service become iran and tens of billions of dollars can be enforced against them in judgments that can't be right ignores the term of art this strays agency instrumentality is not only used in the f s a but it's used in the federal court claims were enough then you run into due process problems and as the supreme court said in ins be st cyr where you have possible definitions but one offends the constitution you have to go with the other definition the other definition here says you can't attribute a service provider a mere service provider a function of functionality as the same as the principle why because it would offend it would be an irrational arbitrary deprivation of due process it broad where would you draw the line would you draw the line in some kind of operational aspect or would you would you acknowledge that it's something serves as a bank instrument for a terrorist organization that might be a material function for the bank for the ser s i would tie it to the actual wrongdoing giving rise to the judgment or to the illegality which caused the foreign state to be designated in the first place you have to have some nexus and where you're dealing with other statues there's proximate cause limitations we don't have that and providing financing just as harmful i think not your honor we're dealing with a foreign state if you're dealing with a foreign terrorist organization the answer may be yes but when you're saying you're talking about iran and you're saying look they have all sorts of operations they have banking institutions around the world china imports exports their oil for them china is not iran we're not holding to attribute china as iran and therefore all china responsible are we it offends all notions o due process if you can say any service is enough and if you said it's the service has to be money transmissions in favor of a carriage to vent or terrorism if one is transferring money for the actual terrorist party a criminal act or for terrorism generally it could be but where you're just holding real estate and sending legitimate rental income to not iran this is in direct to asa which from him that's why it's so dangerous because then if we are found to be a service provider and therefore iran then anyone who did a service to us an important service becomes the agent of iran to li thousand and thirteen so let's do two thousand and nine the is an absence of strong evidence of any evidence really you know from ninety five on very very little evidence certainly from two thousand and four on nothing when you're your honor mention last time when we were having the same argument to the other side in october of two thousand and seven there was a meeting with the iranian ambassador to the u n and at that time the ambassador said do multiple things one stop giving to any entities unless there shia said i'd like to meet every three to six months so i can offer views maybe i'll set up a cultural assembly so we can share ideas about charity that's not control that's in two thousand and seven the evidence from the most recent period two years before demonstrates a lack of control the district court didn't focus on it she acknowledged the just record acknowledged that it was relying on the historical perspective and i would one last important point on this point of control the district court recognized the absence of evidence in the recent past and it did so in a funny way the district court found i quote the most recent years of what is per trade as seeming independence is nothing more than a long game whereby the governor or ron fully understands that it must withdraw into the background until a more for two of us time arises when the new york foundation's assets may again be employed for use by the government of iran that long term strategy was nowhere in the evidence there was nothing to support that was pure speculation and it was a band aid it was a short cut to say sorry the absence of evidence is evidence in may please the court james bernard on behalf of the judgment creditor's there have been four issues rees today that i'd like to address the three that counsel raised concerning the mandate on the facade he claimed over broad standard with respect to and the historical analysis and then also from the prior argument the fifth amendment in vocation issues are also raised in our matters so i'd like to address that as well why don't i start with the issue of the overbroad standard i think it's critically important to recognize that when we're talking about tria in the first instance the assets have to be blocked and so before we even reach the question of whether or not as an agency or instrumentality of a terrorist party whether or not they are that the assets at issue need to be deemed blocked and that's critical because the finding that's necessary for that and the finding that judge forrest made that is not challenge here in this argument today that the defendants provided services that were a benefit to iran then link in specifically to the preamble and the other terms of the executive order which for example say the following particularly in light of the deceptive practices of the central bank of iran and other rainy and banks to conceal transactions of sanctioned parties the deficiencies in iran's anti money laundering regime and the weaknesses in its implementation and the continuing an unacceptable risk posed to the international financial system by iran's activities once that executive order which is thirteen five nine nine is trigger because there is a finding that these defendants did those things they provided a benefit to iran i submit that's the sufficient nexus if a nexus is even required under this court's articulation of the agency or instrumentality standard because they are doing the very thing that the president they are to be a national emergency they are hiding iranian assets in the united states for purposes of transferring funds to bank melanie and then ultimately to iran and the executive branch determined that conduct in an off itself was an unacceptable risk now any further nexus requirement beyond that takes the blocked asset quality of these assets and imposes an additional requirement beyond that that certainly wasn't set forth in kirshenbaum and to the extent that the court wants to look to stansel from which this court drew that standard in stansell that level of a nexus requirement wasn't required either so i submit that on this record any nexus requirement beyond simply what the court already required by virtue of the materiality requirement and by virtue of everything else that it's that incursion bound is found is is satisfied and the district court actually made explicit findings on that matter i should add while i'm talking about the overall the overbroad standard issue  that addresses why a distinction why that distinction in language shouldn't somehow be relevant ruben is your honor indicated was about a completely separate issue of whether sixteen ten g is a standalone requirement so there is no reason for this court to reconsider the kirshenbaum standard let me turn next to the second issue that i wanted to address which is the historical analysis and the point about the time of filing requirement i think in the first instance it's important to bear in mind where that rule comes from that rule comes from the supreme court's decision in dole which was addressing sixteen zero three and was addressing a classic sixteen zero three issue which is whether or not the entities that were involved in dole were majority own by the government of israel now majority ownership especially at the time of the filing of a complaint is something that courts in fact finders can do with relative ease and objectivity just like the supreme court did you just simply look to see whether or not the government of israel at the time to keep complaints were filed and more than fifty percent not so with the question that this court directed the district court to ask in finding whether or not the defendants were agencies or instrumentalities of a terrorist party inherently in dealing with that question we're dealing with subterfuge we're dealing with deception we're dealing with efforts to hide exactly what was happening and who the true beneficiaries are and believe me this is not just mere rhetoric on my part let's remember that this court specifically found last time in the forfeiture appeal that a lot of the had been lying to the new york attorney general's office the record that the district court found of those tines of acts of deception and i'd like to just review them briefly because i think it's extremely relevant to the time of filing analysis we have the one nine hundred eighty nine why to the new york attorney general office about who distraught owners of asa really were that's at page three sixty three of the district court's special appendix three sixty three we have this court's finding in the in the prior appeal at page ninety one that they had concealed bank melis true ownership of we have the district court specific finding that in district court proceedings in this stark it a lot of these executives and officers law abiding depositions and why didn't submissions to the court about what role iran had had in organizing its affairs and in running its operations specific findings at page three eighty two and three eighty three another specific finding in one thousand nine hundred ninety five the new york attorney general likely as a result of the sanction regimes sent a letter to a law asking them to identify who asa was what was the answer after placing a series of worldwide advertisements seeking co investors we found that's a lock and the lies continued through the gib a litigation again in deposition testimony through the filing of these of these actions and then coleman aiding in late december two thousand and eight when the president of the lobby mr jehad is served with a subpoena asking for documents that would have shown what the relationship was between asa and six fifty fifth avenue and a lot of what does he do he goes to a dumpster and tries to shred the documents this is not a case therefore where that historical evidence is completely irrelevant to the question of what services the defendants were providing to the terrorist party they were trying to conceal their relationship to iran starting in  nine and right up through trial now in their briefs in opposition counsel makes the argument i want to emphasize to the court that i don't take this point lightly that generally speaking we do not sanction parties for the positions that they litigation so it's ok to litigate and lose and when that happens we don't always say you know what these are bad guys they they committed perjury or anything like or something like that but sometimes you do and there are two decisions i bring to the court's attention that i think are relevant on this united states versus boyd and united states versus stewart which is this court knows is is settled law that were a defendant takes the witness stand at trial justice for that testimony it essentially exactly what we say should happen here as a result of their conduct right up through the time of the filing of a complaint so i'll sum up on this by just simply saying number ownership and that number two once you do that the record here and the findings by the district court were certainly not clearly erroneous judge wesley there's also a number of specific findings that the district court made on the issue of control and one of the key things that i would emphasize is the appointment of board members there is some five or six of them in the record who were appointed historically but who remain board members right up through the filing of the complaints that's the kind of control kirshenbaum did not rise to the level of an alter ego violation but i submit does rise to the level of the lesser standard that the court was clearly imposing under under kirshenbaum for agency and she would tell let me move on to the mandate issue and to the fifth amendment issue your honor on the mandate issue this is what i would say first of all i think as judge chin recognized it's critical to remember that we did not intentionally bring our sixteen ten no i didn't mean to suggest that you recognized it then i want to be clear about it then that as a factual matter that is a true statement we did not move for summary judgment under sixteen ten b three and therefore this court did not by necessity i can do it from memory what your honor held what this court held under sixteen zero three had no relationship whatsoever to the arguments that we raised on remand and it's because of this it's a little complicated we had previously argued that we could pierce the citizenship of the defendants using bank check so we had previously argued that a lobby and six fifties status as citizens of new york arguably with respect to the partnership but certainly with respect to the corporation could be pierced as a result of bank check what this court held in kirshenbaum was that as a matter of law that was wrong we could not do that that was the issue that was explicitly decided in kirshenbaum when we went back down to the district court we did not argue anything whatsoever with respect to the citizenship status of the defendant precisely correct your honor and the only thing this court decided on that issue and i use the word decided in quotation marks was dicta in a footnote that that was entirely proper you're right how do you how do you fit into the other categories six you know in oregon yes your honor that's correct in fact the district court made specific findings of fact on the oregon issue nor the requirements of the majority o i do i know i don't i don't i should say and i'm certain that you do care i know i know i understand for many reasons why the procrit answer to that question may have been i don't care but there is actually two reasons why i'll give you why i do care that's a fair enough one is that technically under treat our clients are only entitled to recover compensatory damages not punitive damages and i don't know where this case is ultimately going to end up and how long it will take for us to ultimately be able to obtain turnover of these assets and whether or not by that point in time our client's compensatory judgments may be satisfied and therefore we're only looking to recover the punitive damages portion  the other reason your honor is just simply that since the issues have been briefed and since this is now potentially a case that could go further or up to the supreme court or otherwise or back down again i would ask that the court resolve country and how the act is treated under foreign state law this will have to go back because she didn't do that did she she did your honor actually she she has an entire section of the opinion below addresses all of the court will see it but the district court judge clearly recognized the filler factors addressed all not all of them but addressed five of them weighed them discuss the evidence that she believed supported a finding with respect to each of the filler factors and i submit it wasn't clearly erroneous let me move on in the last year so the last issue with respect to the fifth amendment invocation that was argued earlier i just wanted to say to the court that with respect to the bench trial the district court judge made a very specific finding that even though she was relying on and so i guess the more accurate for as might be to say cited and referred to some of the fifth amendment in vocation questions that we had introduced into evidence that her findings of fact with respect to all of the matters that we discussed today existed or that she would have ruled that way independently of the fifth amendment in vocation issues and so therefore in the event the corp were to determine that the fifth amendment in vocations or the way in which that was handled was not in some way proper what about precluding them from from revoking their invocation and testify yeah your honor a couple of points on that number one your honor asked the question in the last argument whether there was prejudice and with us judge yes there was prejudice and it was very specific kind of prejudice because on appeal last time our bank check claims were dismissed as a matter of law that means we were no longer with a bank check claim on remain and now allowing discovery to be reopened with respect to some witnesses who could testify as to some matters honest with respect to a claim that this court already said we had produced insufficient evidence and as a matter of law would have been prejudicial to us if we were able to litigate that claim and take that testimony that's a different matter but that is a form of prejudice to us and the  arguable prejudice with respect to parading the stuff in front of the jury would apply that's correct your honor and the only other thing i would say on this point because of the record on this actually gets a little confused with respect to what is happening in the for action versus what is happening in our action but i did want to call attention to the particular record site that got referenced earlier were counsel first raise this issue because i think it illuminates the i'll say hedg nature of precisely what was put before the court and what we were on notice of it's it page one two zero four of the appendix and let me just read the quote we understand this was counsel for the defendants we understand that at least some if not all of them have decided that they would be willing to testify and i expect that the government if we intend to call them would certainly want an opportunity to depose those individuals i submit that the statement if we intend to call them is far from a clear indication either by name or of actual intent to do so such that we in our case should have been put on any sort of notice judge but the response was you can't call them no matter what i had knowledge that but it's important to appreciate i think the procedural posture in which that happened was that the government ultimately moved that the fifth amendment invocation should thank you or our counsel said it's beginning that the there were findings that were not challenge i just want to be clear we challenge all of the district court's factual findings the factual findings were based on the exclusion of fourteen of our witnesses and two of those witnesses were very important particularly on issues of control and what had happened in the last several years counsel started with blocked whether these assets were blocked the blocked issue doesn't address whether these entities were agencies or instrumentalities and i noted that counsel failed to disclose or mentioned not saying he's hiding this in any way that the issue of block property has to be made as of the time of decision june seventeen there was no evidence the court specifically found that the blocking issue was the same analysis as her historical analysis certainly time of filing in years before that wasn't june seventeen it was a mistake and i will tell you also that in terms of time of filing mr barnard went through an analysis kind of going through a chronology and he started in one nine hundred eighty nine and he went to a bad day which was nine hundred ninety six then he jumped from one thousand ninety six to two thousand and eight and he talked about the president's destruction of evidence i urge you to look at the evidence those five pages of documents or are five documents that were shredded had nothing to do with control nothing to do with any relationship with asa that wasn't telling information that wasn't evidence of control and it was telling to me that mr bernard skipped from one nine hundred ninety six to two thousand and eight there was no evidence there just like the district court was confronted with the fact that there was no evidence of control in the time of filing or near the time of filing and that's why the district court relied on this theory of a long game without evidence to support it so let me focus on the mandate the court found that that issue was waived it certainly is not permitted for plaintiffs defendants any party to do a piecemeal approach to litigation to filing an appeal so it cannot be that the folks here the claimants i'm sorry the plaintiffs appealed their issues their claims under the f s a but chose not to bring this one up and somehow that's preserved they have another bite at the apple that's not the way it works this issue was flatly decided and your honor he focused on  issue there filler factors are not met here one only need look at the time of filing and the evidence by the district court that hundred fifty page opinion is overwhelmingly evidence well before the sanctions even went into effect certainly not evidence of two thousand nine but more than just that as we cite in our brief the relevant f s a section here is six hundred ten b three that only applies when the claims relate i'm sorry when the judgment relates to claim for which the specific agency instrumentality is not immune this court in walters the seventh circuit in reuben said the judgment must be against that particular agency instrumentality it doesn't work when the judgment like this one was against the government of iran that doesn't work under this six hundred ten b three the claimants the plaintiffs had a sixteen ten a seven claim but they don't even dispute they gree that that one is gone that was the claim that they needed to bring to enforce a judgment against iran this six hundred ten b three claim requires the judgment be against this particular alleged agency instrumentality it was not thank you thank you it will reserve decision