renounced its ship in doing so he freed himself of his obligations to the international community here and he forfeit the protections of the st amendment petition cla examine the definition of the phrase the people in the st amendment and concluded that quote the people refers to a class of persons who are part of a national community or who have otherwise develop sufficient connection with this country to be considered part of that community by renouncing his membership in the national community and intentionally severing his connection with the united states mr  himself out of that definition the government contact concert your argument assumes that the only basis for the government contract exception under the civil law is the st amendment but there's some question about that isn't there is some question about that in the in fact narrow a rule like that which is why we asked you to consider this question of thirty cation i mean how can we decided a question how can this court decide that issue it's a very important question here are easy it was your honor we agree that it's important question and we and we believe that it's a question that may properly be certified to the district of columbia court of appeals specifically the question of whether or not the government plan tax exception applies to exclude from the jurisdictional calculus contacts with the district by defendants  not entitled to the protections of the st amendment we agree for europe you're ok with certifying that if we decide to do that you that it's ok with you i think as your principal argument is your principle argument that there is no authority support there at least implicit claim that nonresident aliens are covered by the government contact exception under the d c law so that you're forgetting the st amendment whether that implicates a st amendment or not there is no case you claim and i can't find any i'll ask the other side that says that exception applies to non resident aliens is that your argument so let me be very specific in you know response we believe that this particular defendant cannot invoke the protection of the government context exception because he does not enjoy a protected right under the petition clause having rejected his citizenship all right so i want to go more now or ok i want to try and figure out what d c law says you're making a lot their argument i understand what you're arguing and i we we're not inclined to go overly lofty if there is another way to do it i'm asking you are you saying there is no case authority to support their claim that a nonresident alien can say that i am protected to the extent that it's a protection i am covered by the government contacts exception on the d c lawn provision so there are cases  in the circuit they're federal court cases where the district courts on a handful of occasions have held without deciding the issue and other any court of appeals decision there are not there aren't any and the one that they cite in the bush record site really does not decide the question is a foot in a reference that doesn't i'm trying to understand how much you're pushing that as i understand your loftier notion but i'm trying to understand are you saying there is no circuit law to support their claim to be under the government contacts exception protection as it so to speak there is no circuit law you are however i'd like to point out i believe the fifty position that we are advocating is actually narrower rather than loftier and here's why it is hypothetically possible that a nonresident alien for example a citizen of a foreign country or even a corporation in a foreign country could under the definition of the people in virtue go work established a sufficient connection with this country so that it would come within the definition of people so in other words our position is narrower in that it doesn't exclude a wholesale every single nonresident a so and have that on top of the st amendment and the question as to whether or not the st amendment to what extent covers nonresident aliens what the original case in the d c court of appeals refers to citizenry protecting  not talk about and i'm trying to understand how much you're going to let me ask you so i i guess you're hedging on that your last chance to suggest that that's not your principal argument but let me ask you do you want to as you said i'm not convinced that the court has to go that far but it is true or not we completely agree with your honor that if you look at the at the case law that you're talking about in the district of columbia court of appeals and in particular if you look at environmental research there unquestionably the court is only talking about an exception that applies to members of the national citizen right there's no question the rationale doesn't go into more broadly than that that's why and i don't see an overt d c circuit not d c district court i don't see any d c circuit case extending it there but i want to ask you another question assume i don't agree to the extent that you're making the argument sue mine and agree that you fit substantial revenue that you can rest on that then i would see your claim as as princip engages in any other persistent course of conduct i would see that is your claim now what are these what give me give us a sense of what conduct you are talking about and assume the government contacts might apply just take that aside so what are the other contacts that you are resting on to make the argument that they satisfy the statutory requirement of engaging in other persistent courses of conduct so just i follow the assumption the court doesn't hypothetically not agree with us  about somebody who's an announcer citizen trip and leave that aside for now i don't know what to make of that move that aside from what so in this if that were the case here you would take out of the jurisdictional calculus the over twenty context that we know of so far there in the public record that fall into for several categories none of which has ever been recognized as a government contact within the exception so for example the defendant entered the district on multiple occasions to market his book he made appearances at think tanks he came here to give press interviews to go on t v and on the radio these were all nondiscretionary contacts ok so the so here's my question and i understand your list and i it looks like it's about twenty over eight years i guess something like twenty over eight years of things you're talking about what is there any case that explains what tells us something to suggest that twenty contacts of this sort coming in out of the country for a press conference and going to lunch and whatever he was doing is what we're talking about when we say persistent contacts and of the d c starch well i think that the i think that the the analysis is spelled out very clearly in car which one of which is one of the few circuit cases that really talks about how you go about applying a four right as opposed to a one there's plenty of cases rattle a four and eighty or so government contacts exception he says really talk only about what you exclude but if you look at crane v car what the court there says is what you're what you're looking at is you're trying to determine because you know you've got injury in the district right so you've got it you've already got a pretty firm foundation under the due process clause you're looking at the plus factors and you're trying to determine in the language of crane v carr is the inforum contact so isolated and is this a situation where the defendant has no affiliation or scant affiliations with the district and that's not the case here here you've got a defendant who st of all is on record as saying that he made a career he has made a nd career in the district he's here all the time doing all corners all sorts of different things to promote interests and none of those contacts promoting his personal interests and none of those contacts have anything to do with getting information to the government getting information from the government and critically in the in the language of the forget the government contacts thing i understand your argument that i'm trying to understand what  mean by persistent course of conduct those persistent meaning conduct of the same sorts what to your presence is about something in particular so we would have reason to know that if you come in your about whatever right and you're doing it persistently or does it mean you made twenty trips to the usa over eight years well i think under cream the car what the plus factor analysis the persistent course of conduct remember is a plus factor purpose of the plus factor analysis is to ensure as a matter of due process that the that the course of conduct that's being counted as a plus factor is not so trivial or isolated that it counts as nothing but it doesn't require much more than that here we have quite a bit here we have someone who the evidence suggest wrongly is making a career here repeatedly coming to the district to sell his book repeating repeatedly coming to the district to demonstrate his bone a few days as an expert in russia u s relations on you or your conceptual zing persistent conduct as if it were the due process minimum plus a little bit more and i'm not sure that gives fair content to the statute itself which uses the word persistent read in context of other crimes of the statute which use words like regularly substantial before revenue it seems like the statute is designed to send a much higher trigger than just the due process minimum that i think that my understanding of  four based on the case law is consistent with your honor's observe ation that unlike a one which is intended to extend to the outer boundaries of the due process what's permitted under the due process a for requires something more however the case law is quite clear that it is a lenient standard and again i believe the touchstone is justice ginsburg's decision in crane v car which makes  very clear that the due process safeguard that is embodied in those plus factors is not a rigorous standard but is rather intended to insure against a situation where the defendant is being hailed into the district who has no meaningful contact with the district the contacts here that are alleged in the record evidence is a very significant indeed persistent series of entries into the district over time which are characterized by the defendant himself as a career in washington for a consistent set of purposes so i think we i think we are well within comfortably within a four just last one more question for me which is when we're  persistent course of conduct under the a for some prong do we need to screen the contacts through t sharee shield doctrine do we need to consider whether the figure sharee shield doctrine cuts out some of those contacts so we don't take issue with the viability of the fiduciary shield doctrine our position on on this sub prong of a full exactly right we rest on the proposition that we need to consider it it is not going to apply where you're talking about the founder and c e o of a company that that's exactly right here i don't know good question imo oh i was going to ask you one more question about the government contacts exception you've talked about the fact that the defendant here is  a citizen and you've raised all those questions about whether exception applies to some but isn't there a nd issue lurking here which is unresolved and that is all of the cases so far under this exception that i know of both d c and federal all the cases and will defend to a direct contact with government agencies here the defendant is arguing that iesus no direct contact but this is washington and people lobby in many indirect ways press conferences writing books  shows i mean that's just the way washington works and except for one district court decision there are no cases extending it out far and isn't that a unresolved words whether or not it brings within it we not just tax purpose of directly providing information or to or from the government but as was held by the cour below any contact any conduct that has any contacts that are arguably related to lobbying i don't think that's an unsettled question i mean in in the case of bechtel and cole which was a district his argument is just as people come to the district to lobby a particular agency specifically i've come into the to straight to lobby to influence the passage of this bill through writing a book and having press conferences and this i don't know of a case either in our court or the d c courts reject that theory that's that's my question so it's no s is no controlling decision and it's clearly important because it's really important question and it raises tricky issues well  the question is it isn't that a certifiable question also i would submit your honor that that that expansive reading of the government context exception is fundamentally inconsistent with bechtel and kohl's requirement that a contact be non discretionary all of these contacts were all of these contacts were activities a could have taken place anywhere the defendant could have given a press interview in any place in the world he didn't have to come to the district to do it he could have spoken to promote his book anywhere in the world but he came to the district they're not  discretionary activities i think bechtel and cole squarely requires that the context non discretionary and therefore you are you merging together the pre act to conduct where it really was direct activity in congress with some of the later activities are you saying there was nothing assuming a nonresident alien would be covered are you assuming there is no activity here that would fit the exception assuming that the nonresident alien zero is covered by the u s covered by the exception are you saying nothing here no right now ok fine so your your argument is that post two thousand and twelve whether the contact applies or not there are plenty of other activities that fit your argument is a plenty of other activities that fit the persistent course of conduct so called yeah i'll concede he's covered let's assume non zero resident alien is covered is covered i can see that that's not the whole case your argument is much more going on here the persistent course of conduct is well beyond anything that the exception would was ever intended to cover that is exactly right we don't need options to prevail in this case i just want to make sure i had you straight that is clearly that's why i was asking and i will ask the other side as well seems to me this thing rises and falls more or less some persistent course of conduct and i'm trying to get a handle on it because i'd hear you to say if i'm willing to give up the nonresident resident alien argument because i win anyway that's right and i think the the only point i would add to that is given how many contacts we have post two thousand and twelve right you think there is a more than a good faith basis for jurisdictional discovery to determine whether beyond without a record week there's there's more evidence thanks i got there i think unless judge catches has a question if you  after his friend and colleague sergei magnitsky was incarcerated and murdered for the offense of having revealed a corrupt a massive corruption scheme involving the russian government mr browder has sent devoted his life to pursuing justice for magnets his policy agenda is to persuade governments as well as the voters who elect those governments and the media that informs them to adopt and in force the magnitsky act which seeks accountability for corrupt and violent russian officials this policy agenda is precisely what led mr browder to offer the book red notice and it led the united states congress to invite him to washington d c to testify publicly and to attend meetings here appellant has failed to identify a single substantive contact mr browder had with the district that is separate from his work regarding the magnitsky act not one account so i let me just if i may because i'd really like to get the questions answered i think you have a really difficult argument to make as i read the case law and i was god knows spend time reading it post two thousand and twelve to make the argument that your client's covered by the context provision  but just seems an enormous stretch and that's forgetting the question that we could have was to whether or not he's covered at all because he's in on resin eliot and there is no circuit law to support that let's leave that alone there is conduct post two thousand and twelve and struggle for me just so you have one judge's struggle here the struggle for me is whether or not that fits the persistent course of conduct argument and requirement and so now i need to understand both of their views and what that means because i'm going to tell you honestly my current thinking for what it's worth i don't know how you can possibly make the argument that the contact would apply post tw twelve there are all kinds of things going on nothing like what d c law up to now has put in the contacts exception so why is this not persistent course of conduct let me try to take out a couple different ways  own that's precisely what i'm going to address the fundamentally misunderstands what the magnitsky act does the magnitsky act authorizes the imposition of sanctions which requires further action by the united states government in the form of ofac sanctions from treasury in determining the individual subject to those sanctions mr brown his advocacy in d c is continuing to make arguments about who should be subject to those sanctions he is engaged with the treasury department he is a good engaged with congress on those questions so the fact that the act was enacted is ignores that the plaintiffs launched a sophisticated well funding lobbying campaign to repeal and or rename the magnitsky act and mr browder was working against that campaign in an effort to defend the act keep its name and to stop congress from repealing it now as to the legal question of what contacts are covered there's a long line of cases predating environmental research articulating what the contact exception is designed to cover but we don't just rely on cases like united therapeutics that involve the vanderbilt lobbying office and see the way this contact exception arose came from this court in the moeller brass decision in the one thousand nine hundred and forty s and it was about the establishment and creation of corporate offices in washington d c that the cord miller brass and all the cases that environmental research sites and put no nine all recognize that those offices will do some things other than directly interfacing with the u s government they might take orders they might take meetings with other companies they might belong to trade association but when we have i think have to guide our thinking really are not stretching it is forge are stretching it they just are not a press conferences a cocktail party a meeting and i'm not saying they're in significant i totally understand the significance of what the case is post environmental or about direct connections with government agencies or the legislature what's that's the case law on looking at and that's that's where it's bounded now i hear you're saying but there's no case law to support honor i respectfully respectfully i disagree there are cases like joan versus association of medical colleges which is a case that the plaintiff cites a footnote eleven in his brief that cites a long line of cases about participation in trade associations in washington c those cases recognize that when private companies and organizations come to d c to participate in trade association activities including membership activities in those organizations that have no connection to the federal government whatsoever are law because i can't find these are all district court case then why don't you know what i hate to show my prejudiced moment talking about precedent respectfully you're talking to three circuit judges and precedents established by the circuit to as a judge have to figure out how do i start thinking about that i start with environmental and we are governed by them not the opposite environmental is what sets the stage and then the the on bonk the certifications to them post environmental that's the case law i have to look at and so i'm looking at that and i'm looking at our circuit law from that point forward and that small body of law i have to figure out where does persistent conduct i mean where do i get help on what an understanding with the surprises of course of conduct is frankly i think you're barking up a really high and difficult mountain saying that government contacts covers everything here because i can give you all kinds of teacher hypotheticals to say here the absurd results if i try and write it that way any time i come in with with a motive of saying meeting with people and saying things that might promote that statute i'm pretty protective by the government contacts provision that's not what the law is it your honor if that argument were correct that would mean that offices that are established in washington d c for the purpose of interfacing with the us government would not be covered under the exception in less that's literally all they did so those offices would not be eligible to issue press releases to engage in trade association meetings to work with think tanks to work with other or interested organizations and  that simply does that simply ignores the reality of what businesses do when they come to washington d c if you're just taking environmental research on its terms environmental research does not speak of the citizenry with respect to the problem of its test with a rationale that is discussing the sort of due process rationale for why environmental research in this environmental research has two prongs one it relates to the st amendment the nd relates to attempting to stop washington d c from becoming a national forum for litigation that would arise when people come into d c for the principal purpose of interfacing with the us government and the like what this line of cases began with companies that were established in offices here and it has been articulated and developed sense now i want to make  he is i understood his argument the something about the bechtel case and it has to be non discretionary in other words you actually have to did you understand that argument as we understand that argument your honor we do not think it can accurately state the rule because if that were the rule as applied in in the circuit it would mean that all of the offices that companies establish here would not be covered under the government contract exception there's no requirement that a business es tablish an office in washington d c in order to interact with the u s government many businesses interact with the u s government without having offices here that would ok but even if we would agree with you let's just assume that this is just one member of the scales but let's just assume that i agreed with you that case law had not resolved this question it is not that is that it was a still that it was an open issue mentioned involves the receipt of federal funding from by the university of delaware so st of all that's not covered by the petition clause there's no right to receive federal funding under the petition clause but nd of all it's not a it wouldn't be a direct contact with the u government for the university of delaware as work that surrounded the receipt of federal funding the contact that it had with with students for example the contact that it had in washington d c related to it even if not direct directly in the receipt of those funds and so i'm just not sure it's an accurate statement that every contact that's been covered by the decisions of this court involves a direct contact a direct contact order but if i could if i could be since i'm running short on time address so the government content exception in the district from the applies to lobbying and other efforts that don't involve direct contact with government agencies or congress you don't think that's genuinely i don't think is genuinely on certain as this court not direct contact with the u s government that have been considered government contact and that are the that is a discussion we just had but there's another point and matts that is important which is that when the when the plaintiff has made a strategic decision to sue in federal court and could have sued in superior court i'm the plaintiff should not receive the benefit of that by essentially getting to mix and match just records in courts of appeals on legal issues and the point of did receive a strategic benefit in this case had he sued in d c superior with i have no idea what that has to do with how we apply our standard for whether certifying the question is whether this is whether the question is genuinely uncertain under the sea level and whether it's important i don't see any any have anything that suggests somehow litigation strategy i mean if it's a genuinely under certain question and it's important we can't decide even if plaintiff does get a litigation  know i think that the point i'm genuine uncertain is simply that the way that this court has articulated the test is whether there's a discernible path for deciding the issue based on the precedents that exist and we think that there is a discernible path for deciding that we understand that there are unanswered questions with respect to the scope of the contact exception we don't dispute that but the precedents that do exist and the types of business contacts with the fee that have been covered under the government contact exception over the years do create a path from which to  reason what those principles are and the other none showing us any circuit law you're talking about the trade association and the district court case your honor we can see that these cases have been marked largely come up through the district court so but but the but the general principle that one can derive from them is think about the contacts that a particular defendant has with washington d c would that defendant have had those contacts at the capitol of the united states within houston instead of washington d c and here it's clear that mr broad would not have made any of these trips relating to discussions around the magnitsky act if the seat of national government was in houston rather than washington d c he was invited to testify by congress he was speaking to things like the healthy commission on these trips he was talking about a national piece of legislation enacted by congress in force by the treasury department and we don't think the plan is to seriously argues otherwise that's the general that is the argument that environmental research may well if you took a position a georgetown law school to teach about matters like this and focusing on the statute how do you on laws i think that well st of all it would depend whether we were we were asking the question under subsection a one of the statute or as we are here under a four so if he were teaching at georgetown and if your argument for jurisdiction was that he engaged in some kind of act from which the claim in the case arose clearly there would be jurisdiction there and that would actually raise the issue that the court in rows addressed and this is an important point i haven't been able to make it which is that there is no conflict between rosen environmental research with respect to the statute that's being applied in this case rose expressively limited to claims brought under section a one of the long arm statute but no roads it's clear on this point company and brasilia repeat that point and so the apparent conflict that exists between rosen environmental research is only present when there is no due process concerns at play which is the case under a one but is not the case in a case brought under a forum where you're trying to hold a non citizen foreigner to civil jurisdiction in d c for their extraterritorial act so that's a really important decisions both from this court and from the district courts in d c applying the contact exception noncitizen the the uncertainty that the plaintiff has mentioned does not exist that does include judge edward judge edwards three decisions from quote was discretionary not dependent on the unique character of the district of the seat of national government and therefore we find that great plans contacts with bechtel fall outside the protective scope of the government contacts doctrine i think that language and and that and that principle which is key to the holding for close of the pelleas argument here however if there is a question to certify and bechtel and cole is not controlling i think it would be the following whether or not discretionary contacts that do not involve direct connection with the government can be counted under the government contacts exception i have nothing f