said dash two three eight nine aviation and general insurance versus united states judge willers principle error in the appeal before you is that he adopts the government's argument that the fifth amendment does not distinguish between plaintiffs taking between private party claims negotiated on a government to government basis what happens in this case or to these particular plaintiffs is very different and very unforeseeable the government of libya as part of a package of claims in which the government of the united states received a total of one point five billion dollars and then plaintiffs pro rated share or appropriate share of that now for example two hundred nine million dollars of the one point five billion dollars was used to compensate plaintiffs who had never filed claims against the government of libya in proceedings before district courts there are many other examples of internal ways in which that money might have been distributed differently for example in the nine eleven victims compensation fund and in the current state sponsor of terrorism victims fund there's a collateral offset by understanding is that the money was allocated for claims of u s national is that right and the money was allocated for the claims of new york the british the other claimants here the the general a british company stands in the shoes of an american world airways which is also a u s corporation what happened what happened here and what is  as a foreign policy matter and then during the domesticity distribution process quite apart from the international relations portion of these spousal the funds that were supposed to be used for one claimant were used entirely for the benefit of additional claimants it is very much analogous to what the supreme court addressed in lingle when it talked about  clause in the underlying issues contract in the case of new york in the case of new york marine under insurance what they wind up owning the hull of the aircraft so their property claim arises from the destroyed halid the aircraft i have the largest portfolio of those kinds of claims in the united states and at all times those insurance carriers in the individual plaintiffs on that  only locker would sometimes referred to as the lockerbie aircraft maintain those claims with the expectation that they would be successful and certainly the lockerbie plaintiffs were oh i felt that the insured had sovereign was either on the list of state sponsored terrorism at the time of the attack or if it was added to the list in part is the result challenging defendants decision to exclude them from the distribution of those proceeds well even though you certainly have a vested property interest in actual proceeds in the settlement and that can even reasonably be argued i understood your property interest as alleged below to be your property interest in the lawsuit that you filed and getting to continue that suit am i mistaken you have to vested property interest i think there's a question of whether your current claim even at the state it was in is a vested property interest of putting that aside your best of property interest can't be in some portion of the settlement you had no vested interest in a portion of the settlement we have the property interest in the claims that were interest as you allege in your brief as the header on page twenty six when you say were not challenging the sale of the claims but were challenging defense decision to exclude them from the distribution of the proceeds that's not an accurate header doesn't really libya we heard challenging the domesticity distribution mechanism that arose after the completion of the a spouse food here yet your interest in that in that that is correct by the way why can't we view that whole what's to prevent us from doing that as having terminated your your cause of action and this doesn't have anything to do with you as you know the right to a distribution or terminations has a condition subsequent and so are you saying that that congress left it without a legal remedy no i'm saying the congress left these plaintiffs with a have settled could not have changed the jurisdictional rule regarding sovereign immunity of libya and thus failed to allow suits to go forward and what if at that time in the course of the settlement the president had decided that we will take this money only to compensate u s nationals who lost property directly not their insurance companies not corporations and not foreign foreigners of any type are you suggesting that that would not be a proper act by the president and what amounted to a taking which are the terrorism provisions to find sovereign immunity sec you can where congress has given he has created subject matter jurisdiction and created a federal c action which both u s nationals in certain specially designated foreign nationals can avail themselves of that subject matter jurisdiction and cause of action cannot be terminated without has long expired we may not be able to create subject matter jurisdiction the government talks about the continuous nationality rule and in apply that to the two insurance companies here if you're talking about new york marine which formulated solely for purposes of distribution of the settlement arrangement so egypt does not presumably have a similar subtle arrangement with libya so that's not some legal doctrine that precludes a lawsuit in general it or simply the terms of the settlement that's how bush and the commission alternately decided the settlement proceeds would be distributed in that pattern so why couldn't you bring a lawsuit in egypt or anywhere else you've got foreign companies that want to sue the country of libya for a hijack for hijacking planes and none of these events occurred in the u s your companies are not in general recognizes u s companies that want to exception and you know it's an act against a foreign government why does that have to be here in the united states property owners are allowed to proceed in terror victim claims is when congress created that statute it recognized that there are wanted at claims it was all from terrorist attacks there are personal injury claims that result from terrorist attacks and there are also massive property claims there result from terrorist attacks what congress wanted to do is to compensate property owners where the nicktoons of the intended victims of the attack were u s nationals so if you are the property owner of an aircraft and there is a terrorist attack on that aircraft targeting u s nationals for example in the incident involving the holy u s marine ensured that every u s national on that airplane was airplanes parked on the ground it's not been allowed to take off the u s nationals are not about what congress wanted congress need to change sure this isn't like some of the other cases where it was done by executive order and libya was removed from the statute by congress so is what congress wanted most clearly articulated by the statute that they enacted and in this case the removal of libya i e giving libya back sovereign immunity congress knew well when it did that it was a limited in all of these claims what why isn't that the best example of  congress wanted every claim against libya terminated and he has the right to do that we supported it congress would that these claims in the executive wanted these claims  fines would go to certain prerogatives and the question came up why couldn't they do that why were they that was congress left it to the discretion of the executive how those funds would be true if you had no disparity right in any portion of that settlement that's what i wanted to arrange with you and make sure we understood at the beginning of this five to three questions about if your property interest is in a claim a legal claim that you believe you had a right to see through to its terminations you have no property no vested property right and some portion of that settlement agreement so when you keep returning to the idea that our complaint is the post espousal disc just distribution bells go off and i had to you got no property right to the post  distribution your property right is limited to your legal claim and seeing it through to a conclusion if you have one at all but if you take that to its one trick in conclusion it means that any partner who is who  avoid war with libya we need to terminate all of these claims and we need to restore libya sovereign immunity and they could have done it and not required libya to give a single penny and then you have the same argument we taking we had a legal property right our property right was the law says you can't link your property right to how the government ultimately distributed the settlement agreement with you know the settlement proceeds from the commission because bush could have done this for free you don't have a vested property was that was the taken that now the problem i have with that is that that seems to me to be a political question and that there would be one that i would not want to get into we can the court cannot second guess clients don't have a property interest in that spousal hina how do i counsel a client to participate i recommended to people that they participate in this program how do i do that in the in the in the future it creates an absolutely yeah i do a great deal of this work people might see you i had some cases against bush or aside for the beheading of her two u s nationals who you know some people were skeptical in litigation litigation is i mean it's it's it's a it's a situation where he could lean you could say there are lots of things happen you know if the cases were not at far along at the time that they were  and they ended and terminated so i just i thought that was an interesting story for the court it seems like it would be difficult to have a reasonable expectation of success in a litigation and then to expect that you would collect money even if you were successful against the government of libya and don't want to run afoul of judge moore's and if that's something the record to say in response to it is just that it doesn't help as much if you're going to stand here and talk about you know different cases but if you have contract here keep in mind that they can only bring these legal claims in or six in all five capital a for a short period of time and only because of that federal statute that really puts this case within the ambit of the adams case where the claim was one of the statutory ritual about the timing of the the that the effective date of the insurance policy and the date of occurrence but it's a case that in all the insurance contracts the subrogated right does in the crew til purposes the claims actually have to be seeking to protect real property physical property or intellectual property the claims here were not seeking to protect any of those three rather they were in essence tort claims based entirely upon for the company it was think they recover loss when the properties take up we're talking about him within the context of legal of legal claims here and i think the important point is they can only bring their legal claim because of a federal statute that's very similar to adams where it was an administrative claim that can only be brought because of property interest in jurisdictional rules they certainly don't have any property interest in rules of sovereign immunity remaining static when but because of actually the cause of action itself well but the cause of action was affected because of the alteration of th statute there's no dispute that they couldn't proceed with their claims against libya but for sixteen zero five capital way and that puts it within the ambit of the of adams we respectfully submit moreover the bundle of sticks in their legal claims doesn't include the unfettered right to sue foreign countries that's what this court said in abraham your and the supreme court in deems a more noted that in that case the attachment of foreign states assets were not property because they were subordinate to the president's power over those those we have your property interest argument would you move on to defending the other bases the bases upon which the lower court actually decided in your favor certainly with respect to whether or not a taking occurred  that rules of sovereign immunity can be changed any time in fact here we know that they did change a number of times over a period of years in the supreme court and eighty made that point the parties can't have any expectation rules of sovereign immunity remaining static over time now the second reason why they don't have a reasonable guess impact expectation is a more general proposition and that is we know that the president can settle claims and has done so since the supreme court noted in the more since at least seven hundred ninety nine so effectively since the founding of our  country the president has settled claims so for that reason they don't have any reasonable votes in fact expectation now to avoid that result these babies talk about the best you can settle claims you usually vonna claim is settled each side get esitated for one one millionth of a second if while you were being held hostage they said the president can let you go free now but you've got to give up your right to a future compensation lawsuit or would you rather stayed in place so we negotiated more a better settlement i mean you know that's what certainly the big get research got really free we certainly saw him get their lives obviously obviously that was obviously a very significant benefit that they're received but we respectfully submit that that benefit is very different from actually being able to obtain compensation from iran for being on lawfully held and they receive no compensation as a result of the settlement and the courts are nonetheless and the citizens nonetheless that that is not a taking you know because they were that the court clearly threw out based its decision but you usually get something right i got something they didn't get everything they wanted and they got nothing as we pointed out they certainly have the right to seek relief to their home country these are british companies with one exception there's nothing that prevents them from going to britain absent of britain enter into a settlement but it is going to get all of the u s cases that you've cited they got something i mean i got money when they got their freedom it went off as much money as they wanted when they got something but in every case i could find it was related to this the settlement they got something they didn't get zilch they certainly did get something but we respect for some of that that shouldn't be the dispositive factor whether or not you can take its claim just because you received something in for different from actually obtaining compensation from iran for the harm that they incurred now in order to avoid the lack of any recent investment expectation aviation focuses on the claims process itself it says we should have receive entirely unreasonable investment backed expectations and your first one was the sovereign immunity rules are inherently uncertain i mean to ted and i find that difficult because just because rules are uncertain you should and in situations where every case that has ever been written goes to great pains to say these people got something they may not have gotten as much as they wanted but they got something is it really unreasonable for them to you the and us foreign companies you the united states can't sell our claims without either including us and some a process of paying us money or effecting a faith and that's extraordinary proposition we talk about fairness and justice should the united states taxpayer be held liable right but when we talk about claims against foreign countries parties are put on notice parties know that if they obtain a claim against a foreign country that claim maybe settled and the settlement may not be in their best interests it's entirely for tutors who may benefit and who may be harmless a result of that settlement and there's no requirement the united states include foreign companies in any settlement and provide payment for those companies there's nothing that prevents aviation from going to britain their home country and seeking relief from britain through a similar settlement process you focus entirely on investment back expectations you want to speak to any of the other factors the penn central factors character the government action do you want to because i think that the court of federal claims really decided in the government's favor on each factor but i wants wish to in this case of and actually look at where their property interest was was taken by not giving them any compensation if we go that far are we dealing with  political question at that point yes i think so and if that's why we submit the case not justiciable really what they're challenging is the distribution of the funds here and they are in fact challenging the summit as well and they're saying either include us in the settlement significant implications not not just for this case but for future situations again if the united states has to pay for foreign entities that have legal claims even if they have claims for a short period of time if we have to include them in settlements that may mean that in future  that we have a set amount of money that we can provide as part of the settlement and we have to decide who that money is going to go to and that u s national should take and if you say we're not going to give the subrogated interest any money why isn't that taking well it's going to have a legal claim well they have no right they have no right to the solomon proceeds themselves and even with respect to the lease legal claim again it was impacted through the alteration of which are six rule of sovereign immunity  said that the weight of that factor alone was so dispositive that that it result the case on that factor alonso yes the court can look to just that factor but with respect to the character of the government action  still do consider the public purpose of the action and you don't simply consider how that how the government action has affected the plants not certainly as part of the inquiry but as we pointed out they weren't singled out here treat you exactly like a government lawyer wearing glasses in a blue tie and a white shirt and you know you don't see the problem with that argument they weren't singled out we're just going to exclude all people of a certain color well how does that case had something to do with the bacteria on the outside of the egg shell so it applied to producers it seems like that applies to everyone in the relevant community who would be affected by bacteria on the outside of the egg shell i mean of course you would apply that to meat producers it's not the same issue here and tell me how would the government be arguing this case if these this were not foreign companies who were the insured but the families of the hijacked victims who were u s national how would your argument with they have a takings claim here if the government had eliminated their right to sue libya if those individuals brought suits within the six month period of time and then the highlight your whole argument wait a minute then so your whole argument about these are foreign companies trying to get the us to pay for libya's acts of terrorism is was really just rhetoric to invoke emotion or zina phobia because if you 're saying the real issue has nothing to do with their status as foreign companies but has to do with there isn't a taking here and even if they were the us individuals not the foreign company they still wouldn't be entitled to compensation the legal claims may be settled by the united states maybe a spouse but the united states at any time depending on our relationship with a foreign nation and who benefits and who doesn't benefit may be entirely for two of us but just so we're clear it wouldn't have mattered the government's position would be identical whether these were us individuals as opposed to foreign corporations with regard to whether or not their compensable take i would i would separate issue be our argument would not be identical but we would be brace talks about exp investment back to expectations and looking at investing in fact expectations throughout the history of the prosecutor in this case what would be the history of the prosecution of these claims it at no time was the conduct of the government post espousal their decision to use all of the funds to compensate other parties including two hundred  nine million dollars going to parties who haven't even filed claims at the time of the the espousal i promised i would keep this very short and going to sit there and i would say we're you know this has been a very cooperative litigated case with mr green homes office where we do agree is this case is very important it is going to affect the way a spouse are conducted going forward irrespective if you decide to affirm judge we wish decision below you are going to have to do it by making law this has never happened before it has never been addressed in the case either before the supreme court or before this court