morning ladies and gentlemen our first case for argument this morning is one against that puzzles me about this case is that everybody seems to want to address extra statutory defenses part of the statutory one so i would be interested if you could tell me why the actual written words sixteen zero five eight three have been satisfied requirement that the create a property be present in the united states the only requirement is that the instrumentality be engaged in some sort of commercial activity which is the mission connection to the united states and that the instrumentality have taken the property and continue to argument was made because there sue the plaintiffs argued that although the respondent in that case continued to hold the property they cannot identify what specific substitute property may still have been there nonetheless in  textual requirements of the statute before moving to extra textual requirements if any pleading something is not the same thing as resolving the actual requirements of the statu nothing it rejected that line of argument so your revised on district court opinions from the ninety's and ignores the supreme court opinion from two thousand and sixteen needless to say that raises red flags and the judges  b person in their care by four years but decisions of the supreme court trump those of the seventh circuit seems to me we have to deal with the law as it's been interpreted by the supreme court and that's a decision under the foreign act about what it means to be doing business in the united states i don't see how you can ignore it and we certainly won't ignore it certainly or i do not believe that that supreme court decision though addressed the question of jurisdictional discovery which was the topic that this court addressed in alice and what it said that in a situation where a plaintiff at least documentary evidence raising the question about whether the foreign sovereign itself he's engaged in commercial activity in the united states by for example selling services or goods over the internet or otherwise that is i was holding up the supreme court is that if established beyond any doubt is not doing business in the united states you don't need discovery to maintain a website in the united states we get those kinds of cases all the time and we retain lee hold that the fact a company a maintains a website that can be accessed in illinois he's not doing business in illinois you don't need discovery to know that that is all legal principle what we do need to know is whether there is any other way to argue that despite those legal princip in the united states rights that it to clarify the theory of complaint it's not our position that merely having a website qualifies under the statute the relevant provisions of the allegations of the complaint are one they sell tickets in the united states to their website and to the engage in right the supreme court this is again something completely missing from your briefs and the complaint for that matter the supreme court has insisted on the distinction between general jurisdiction something sufficient to subject the whole business operation of something to purposes of figuring out whether somebody is subject to a specific or general jurisdiction you can look at that wherever you want and what i'm saying is that standard that distinction doesn't get located anywhere in the context of sovereign claims because brief you will lose you really need to address the meaning of the words in the statute rather than just say one or another constitutional test doesn't apply i'm trying to figure out the meaning of the words  says if you engage in commercial activity that suffices under sixteen zero five a three or equivalent provision to allow litigation about commercial activity be by all abolition by the supreme court card elegance royal dutch petroleum which said that the united states will not resolve on the merits controversies of that activity that a foreign defendant committed abroad with respect to a foreign victim that there is no substantive claim under u s law with respect to such things and if i understand the claim here it is that a foreign defendant committed a wrong i'm doing my best to tell you what you need to address if you want to address something else that's up to you but sixteen zero five eight three lifts a sovereign immunity defense under special circumstances it does not create a right of action you need something creating the right of action i have much trouble understanding what that might be under other than the alien tort statute it's not if you have something that creates the right of action and first of all the d c circus into decisions now has recognized that the reasoning underpinning those decisions rests on mistaken interpretations of the service statement that's an interpretation that the other side doesn't defend the united states admit narrowly on you know for example there's a public policy exception but that's been interpreted uniformly by the courts to be extremely narrow and to apply only when something violates fundamental notions of what is the something just in united states policy in the majority of times there's  individuals whose property was taken in france during the holocaust now to be clear estimates yet just not dispute that the plaintiffs or their relatives deserve to be compensated for a property that was commission is a adequate and available form she relied on to sworn affidavits of the chairman of the commission on a statement of interest by the us government and by an amicus brief filed by the leading organization of french to groups representing more than sixty jewish organizations in france and she reached the same conclusion that the southern district of new york reached in two thousand and eight in dismissing a virtually identical complaint so this decision is squarely controled by this court's decision in apple lesson fisher it was binding on the district court and she was required to apply it as you know in that case this court said that victims of deportation and hungry were required to exhaust their remedies before him carrying in courts unless it could be show that those remedies were clearly a sham or clearly inadequate or that their application would be unreasonably order which was expressly without prejudice should be you know treated as final for purposes of appellate jurisdiction under twelve ninety one how can how can that be though i mean what was there that indicated  that the complaint could be cured she did not say that's the problem of course the district court didn't release her opinion for a long time or so we don't know whether the problem could be cured or not because we don't know what the problem the deemed ended within one hundred fifty days and the plaintiffs had thirty days to appeal and they did not do so so the appeal is is untimely at least under under the walker decision the returning to exhaustion i too important to note here that the unlike the somewhat speculative realities in the hunt gary in court the argument for exhaustion is even more compelling here because the commission has instead of trying to implement the language of the stove we do something that you call a something else united states called the something else comedy the oh i thinks comedy is probably better term we argued that as our first argument in the district court and we argue it on appeal we agree with the point that you made that there is no jurisdiction under the farms opportunities act because i didn't i didn't say that i said i'm having a hard time now the justices have got a footnote that says well maybe comedy anyway but if we're going to be carrying out the program of the jurisdictional standard one would suppose we start with the jurisdictional statute rather than starting with applies to post judgment discovery and then it took pains to say in footnote six that of course other sources of law may apply and if that wasn't clear enough the supreme court went on to say including considering comedy and that's of course the system with the canon of of statutory construction that when congress legislates against a background of common law that the common law is so in sum we think one of the the d c circuit was wrong to say that a court can only dismiss based on the grounds of the fs itself that these other background principles of common law including  form non international comedy are preserved and under the supreme court's decision in signing him there's no reason that a court can't consider those issues spurious when in fact and it's particularly true here where there  are likely preferable to the procedures here in courts in the united states there's no statute of limitations unlike the statute of limitations here in illinois it wise up like civil standard of proof in fact two of the plaintiffs here mr card and the father of another have previously applied to sieves and received a generous compensation they did not make a claim for a property that was taken on s n c f trains and then did not in general terms that sieves is willing and able to hear these claims but that these specific plaintiffs in this case may bring their claims to sit ups and he said and i quote if i didn't so the relatives of the plaintiffs during the boarding of deportation trains or on these trains in french territory cips is willing and competent to entertain these claims to me in the commission i'm sorry you got me once people get sucked into the address the commercial nexus aspect whether as a pleading matter or otherwise in this case and in your view i think it's not satisfied right yet the french are always doing business through majority on  an apparently did not seek compensation or property taken on allegedly taken on trains but the chairman of mr janet toto has said that they can come back and can apply specifically for compensation  claims and said that that was an appropriate dismissal notwithstanding the jurisdictional question in that case for that reason we do believe that the court if it chooses to do so could result this case on the comedy exhaustion is part of the concept of comedy here is the reason why dismissal would be appropriate would be to allow the plaintiffs in the first instance to present their claims to the commission which the united states has a long  and enduring commitment to as the exclusive forum for the resolution of material spoliation claims related to the atrocities committed during the holocaust we do believe that comedy a ground on which a court in this country may dismiss a case that is a preventable federal common law doctrine it's not a principle of international law although it may be informed by international practice and it does not manned require is a mandatory matter dismissal it is a pretty gentle doctrine require in a district court to undertake a balancing of various factors principally in the interests of the united states the interests of the foreign government and the adequacy and availability of a remedy in the foreign state we think it is quite clear in this case that the interests of the united states and france support dismissal in favor of education by the commission and we also our brief and for those into total declarations we think that that forum very likely is a superior form going to judy cation in a us court it has relaxed standards of evidence there is assistance provided commission staff researching in specialized archives to discover evidence to support claims there is no compulsory process required for compensation if a claim is recognised and the process as a general matter takes significantly less time on average that you sibs website i want to be clear i'm not sure if this is the record but the service web site of which this court can the understanding of international comedy federal domestic common law doctrine as opposed to a requirement of international law i want to start on the stack space that you mentioned stocks was brought under sixteen zero five eight two of the foreign sovereign immunity stocks the commercial activities exception that provision includes an express requirement that the clean be based upon the commercial activity and either it's not whether the subsidiaries context can be imputed to its parents it's whether the fact that each of the areas doing business in the united states allows relief against the parent for activities outside the united restatement you know we focused on section four fifty five in our brief but the four three statements section four twenty four has a very important discussion on whether there is a free floating international comedy doctrine that allows you to dismiss in favor of a mere potential form abroad and as that section points out there are well settled doctrines of comedy that say u s courts can give comedy coin judgments some courts of also say if you can get comedy to an ongoing form proceeding but there is no well settled doctrine the court can dismiss on comedy grounds merely because the court case could have been brought somewhere else and really that the eleventh circuit and the ninth circuit pieces that they cite are the only two cases that have ever done that and that the reason why that's not totally surprising is that there already is presumptively to be heard in federal court and allow those kinds of cases to be team we be dismissed and forcing cleanness to pursue the remedies in front of the very governments courts that's accused of expropriating the property that's not what congress intended there is no well jesson or under the alien tort state statute and with respect to illinois common law are whether there is any decision by the supreme court of illinois asserting common law universal jurisdiction undertaking so we'll give you twenty eight days parties brief should