runs a business in the district of columbia and it pains unfair competition advantages not because of the quality of the product or the price is that there is this charges but because of the perception by those who patronize the business that doing so will curry favor with the owner of the business was a government official who may believe will provide benefits to them that are the government's to give away and not to the individual mr mercer what's your best case for your unfair competition claim that the other side has lots of cases i couldn't find him for years there is no case and likely are aware that involves an elected official who is owed a business of this magnitude or anyway why isn't that a pretty serious problem for your claim where your honor we brought this case in superior court in the district of columbia where we believe that the superior court which has not seen an unfair competition cases one hundred and eighty two and the last time it saw a case it dealt with the unfair competition points in a footnote we believe in accordance with your of the there is a law in the district of law you don't have any case under d c law that resolves as far as you're asking us to your understand the we did not ask the federal courts to extend legal but we we asked that the superior or we  of appeals believes that we do not have a claim that we are out of place and this is precisely the kind of question that ought not to be decided by the federal level his we jump ahead to the merits away from a question of form it would some general proposition within your in which your case did and i'm not sure that you've done that well i think that the question of under the district gloving there is no case in the district court has that all of the cases that have been cited are court cases from the federal court here in the district of columbia district court here district will be the last case was nine hundred and eighty two and in the footnote described what might constitute unfair competition among other claims the court said the following day included citing process torts which said exactly the same thing the following may include and the real question is whether the kind of competition is that kind that our robust economy says ought to go forward better products better service whatever else it is none of them but you you don't point us to any generality or most of them are examples of what the court found was fair competition this is the opposite unfair competition because the owner of the property is taking advantage of his position as a government official and his staff and friends and associates are implied lee and some cases directly promoting the use of the property as a means of gaining access to the government official any definition of fair does not include in our view that kind of activity and the fact that no one has done this before your daughter doesn't need it the district of columbia member to have that goes something parallel the welcome i suppose you're out of it depends on the level of generality which you define parallel and how parallel it has to be all of the other cases involved if you could sit or for example blocking the interest of somebodies business as unfair at some level of was that the evidence we had at the time that the complaint was filed and every one of the allegations of acts in the complaint did not involve acts taken by this patrol after became president of the united states most of our economic benefits of business in the district of columbia while in office doing so is seen as creating an unfair advantage over from and likewise in the reply brief you say that prince of the principle of unfair competition under district law is that it is unfair to competitors for elected officials to own businesses in the district because they can use their political clout of implied benefit or is the idea that a high government official who owns a business while acting as an official is sufficient to be unfair understand to be the principle of district of columbia fair competition law that you are asking us to go well the minimum principle would be the st statement that your are made to simply the ownership of the business while like the office we believe that in asking us to do a common law judge would do in the district of columbia think about the evolution of the common law and i'm asking you what is the evidence that the common law has evolved in the toward the the principle is sitting in the jurisdiction and what even in that court you would be asked what is the indication that the common law has evolved in this why are there no other pieces on this that are like this why is there against them there are no where cases because your honor i believe what the defendant did here issue niek all right well let me ask you about that so twenty percent of the maryland general assembly are active lawyers they are competing with all the other lawyers in maryland thirty seven percent of the virginia general assembly exactly the same the governor of maryland has a real estate business which competes with other real estate businesses the governor of west virginia up bones the greenbrier hotel a luxury hotel michael bloomberg when he was the mayor of new york had a major financial business and john hickenlooper when he was the mayor of  some kind of craft brewery and some number of restaurants i think seven now this suggests and effect overall many many states just lakers across the country are also active lawyers because they're only practicing they're only in session history that has evolved in that direction many clients are not anxious to sue politicians who have substantial interest and have substantial ability to adversely affect their operations as well this is a competitor standing case and it is brought up by an organization is willing to step forward i think that most people would be on willing to step forward in this situation but most people don't also have what we've alleged in this case is not simply that they are in business lawyers or in business but that the business itself is touting paragraph eighteen the unveil ability of the elected official to do favors for those who patronize the business that is a distinguishing feature and i am not aware of other situations where that has happened perhaps it is happening perhaps other officials do it the different way but that i think w would explain and that's why when your honor asked me what a proposition is the st proposition is elected officials and then we would say when they are specifically how doing the business as a means of access to the elected officials with the the business itself it is and i and others as well and so that is the basis of which we say this is different from other cases i understand but it still requires us to expand  two different separate issues i was never started on the nd one st we should finish the nd one so here my problem with this is we have a substantial number of cases that describe our role in an eerie situation appropriate jurisdiction and we find it and we leave it on just as the st circuit correctly expressed this fundamental principle of full diversity jurisdiction quote absent some authoritative signal from the legislature or the state courts we see no basis for even considering the pros and cons of innovative theories we must apply the law of the forum as we presently infer it to be not as it might come to be and this was repeated again in two thousand and seven in the pit case where we cited lawyer for the proposition and considering common law claims federal courts must apply existing law we have no power to alter expand the scope of the d c court of law citing tiller for the proposition that quote is not we are not free to graft under those state rules exceptions or modifications which may commend themselves to the federal has not yet evolved to cover this principle and given our principle that we can't evolve a common law how can we decide in your favor a column on question your honor you can do what we very to decide sight which makes it clear that when these questions are are left open and when the states have a procedure as they do here for certification of these questions of state law questions to the highest court of the state and it can't be done and resolve the question without the federal court involving itself in the business of determining whether the law has changed to revolve it should be done and that's what we asked you to do here we didn't think it required a lot of explanation because we have case law and when we sort of and normally it's we have some reason to believe that the state law may be evolving in that direction and we don't have that here either well and it's a it's it it's a mistake has never addressed the district cumbia courts have never  anything like this it has been thirty seven plus years since they didn't talk about it and even then only in a footnote about unfair competition where they said it made clued and for this court in my view unnecessarily reach this question when yes and our st claim is that he should have divested himself of this activity in the business before he became president at that time if he had done so before that there would be no going on it is a distraction those are in his private capacity they are not in his personal capacity and the supreme court in the fitzgerald case made it clear if you don't have a claim that he's not presently the united states or a federal office that your claim is based entirely on that right yes and so why isn't that squarely within the federal because little more he has said that that provision is designed not to deal with the question of whether the that's correct your honor i believe that cases like johnson and acker dealt with the question of whether the federal court in that case the state courts before we took place would be in the process of ordering the president or the federal tort that required the defendant to be a federal officer wells happen to be they happened to be a federal officer your whole case is based on an action and being a federal officer i don't believe weakling that he's elected officer your honor and that of course is that is the gist of the problem but nothing he does with respect to the business has any bearing whatsoever on his federal duties and responsibilities in a press conference and in the white paper that we have the joint appendix of sixty seven hundred and seventy two dollars that he recognized the need to separate his private activities from his presidential activities which of course is perfectly consistent with the use of the term outer perimeter in fitzgerald where it's clear that everything the president does as while he's in office is not invoke his absolute immunity from from liability it's only those things which are within the outer perimeter difference between them is but i accept not from sure that that there is he has any federal defense to the claim that we've raised under the law of the district of columbia there is nothing inconsistent with his special acts unlike the postal driver in in johnson or the judge in actor who under the understanding of that that had that he was doing something illegal and could be theoretically enjoying from being the federal judge none of that is going to happen here the president carry out all his official responsibilities he just cannot carry out his i let me give you some other examples of steps so suppose your honor that new york state has a law which many states have that you are entitled to a homestead exemption on your principal residence because you are residing there more than fifty percent of time mr trump if you assume if he had that tax break move to washington d c he could not because he's president be able to comply with that at the same time if he complies with being president and therefore he would lose that neutral rule which we say is a neutral rule here because it applies to other that kind of neutral law would not be offended by the immunities provisions given to the president it would be a neutral law affecting all persons similarly situated and it would not violate the fair competition law as requiring  your honor i believe it would be constitutional because it's because the immunity set up it would be a cholera bill constitutional right that's that's really the question interesting hypothetical which i thought i think quite clear that the dividing line is between one's personal affairs and one's business affairs that we gave the example of then president clinton in the white house with his affair with monica lewinsky he was president i states the acts occurred in the white house and we do not think he had a colorable federal defense to any claim that she might have brought against him and we say that's essentially what we have here is that the if we pointed to at to the presidential act of being sworn in we we created this that was an act it's still a liability arises because it's the consequences of his personal acts as president the ownership of the business not his official acts that's the dividing line and that there is no colorable immunity ready for purely private acts unlike the immunity for official act and and even if you don't take the words x literally four hundred and forty two you still must recognize that the court has set up this divide and that put another way everything that the president does does not create an immunity for him or even a basis for removal from the state court take the case which i want to listen to take gave before if that case had been filed people do not normally file cases against high ranking officials in the superior court president president clinton have removed a tort case from disappearing court to the federal court on the grounds that had a colorable claim to official munity i said yes the answer is no and but brief you refer to the nature of the problem as the imply promise of the rule book treatment by the trumpet that's right so that's implied is normally what we talk about under color of law presidents actually already as president whether there are appropriate or not to benefits but he would only have that authority if he were the president that's not something he has authority to do as a government but i also want to be clear are we have only talking about a colorable defense here but but you're not arresting about and the whole point here is about the implied promise of something that the president will do as president page forty two of the joint appendix and we say the perception by many of the customers that prospective customers substantially aided by the marketing efforts of officers and employees of the hotel not just drop as well as members of the family of defen crook and others associated with them that it would be to their advantage in their dealings with the present crop and other agencies of the government if they patronize the hotel so we do not depend on a president comes actively promoting the hotel another question is had you not sued president trump we would not be here they wouldn't have been able to remove the case under the federal officer provision because i pretty they have another argument on the argument we're discussing today because he wasn't the president and if because he was of the defendant so why did you sue the president we sued the president all of which are really complaining about is what reason we sued the president was because we didn't know what positions they were going to take with respect to parts of the case number one whether they would claim that we failed the joint necessary party under the local rule nineteen because we had to have home that's an interesting argument i suppose you could have added him as a party that in the nd reason your honor was if it turned out that we needed to have discovery it would have been i thought you said there was no act by the president that matters here all are but i said that we don't have any acts of the president dealing with his business activities that we alleged in the complaint or i didn't say that it was impossible that the president has not done other acts purely in his business capacity that we might not want to rely on we did not know what the facts would be at the beginning of this case this case was filed in march of two thousand and seventeen to less than two months after the inauguration and we thought rather than try to end the president later on which would have slowed it down and they would have removed to the federal court anyway under this other theory we made the choice that we decided we'd better name president and not have those problems down the road you know if if the court were to dismiss president trump now and reject there are other honor we amended the complaint for one reason and one reason old that the in the in not in their removal papers themselves but in the motion in response to our motion to remain they pointed to sup paragraphs in the complaint which suggested that we were alleging acts of the president while he was in office one of but not the only basis for opposing rule one of them was a clarification that the president had said to a senior member of the house of representatives that arissa to that is that nothing prevented him from becoming the president or continuing it up in his office as president it is in his personal capacity that the district of columbia is imposing any obligations and for the reasons that i have expressed before that he is his ability if you keep saying that with the but the fact is that the consequence of your principle would be illustrative of the principle of the district of columbia that elected officials are not supposed to be in business when being in business enables them to leverage their elected office to gain business for their business and i don't know  the the fact that the president has to obey those general laws like the postal drivers have to obey speed limits does not mean john the power of the presidency that nothing in that law would say to the separate his business activities from his presidential activities and that's what makes our case permitted and the other cases no please the court the court theory of this lawsuit is that it violates d c law for the president to own a business we know that not only from what i think mr morrison just said but from the face of the complaint paragraph two says plaintiff's claims and i'm quoting here are based on the unfair advantage that the hotel has gained from donald judge from being the president of the united states paragraph thirty one says that plaintiff has no legal basis to complain about competition before january th two thousand and seventeen when donald trump began serving as president and paragraph forty two as we've discussed  already requests an injunction required in the complaint some words requiring the hotel's closure or sale or president trump's resignation in other words so long as the president wishes to be president he must arrange his investments as d c law supposedly requires these claims are clearly removable to federal court and it is equally clear from the binding precedent of this court in the d conduct and the federal officers asserted fishel authority now plaintiff attempts to conflate these arguments at times they few go one by one through them using the applicable legal standards the president's removal here satisfies both so st the color of all federal defense requirement the notice her approval of her move all specified to defenses absolute immunity and preemption now we think based on the complaint that we removed from d c superior court absolute immunity is a colorable defense because among the acts that were being complained of in the complaint were post presidential acts including in the inauguration parade which as we've discussed already was removed from the complaint after president the defendants removed but there is hardly any dispute to think that the president's actions within the inaugural parade which allegedly promoted the hotel but were still in the inaugural parade are at least within the outer perimeter of the president's official responsibility and at least that's a colorable non frivolous claim and so we think absolute immunity is itself enough to justify the colorable federal defense requirement but preemption is as well and i would suggest that the acar case that mr morrison mentioned is proof enough of that on its own in that case there was a revenue raising local law that merely required all who performed and occupation within jefferson county alabama to pay a tax on that income they received from their profession and two federal judges removed that successfully to federal court on the theory that the statute i'm sorry the ordinance made it unlawful for them to engage in their profession without paying the tax and supreme court held by divided both to be sure that that was a colorable defense and that it was in fact it presented a nexus a sufficient nexus between the claim and the federal authority can be described in those general terms without any reference to the federal office unlike the tort claim asserted here and nonetheless the majority said it was enough based on the structure of the ordinance and the theory that the federal officers were putting forward that the activities that gave rise to the asserted liability namely the federal officials status as federal officials and the income they received thereby that was enough to types of acts that can give rise if they can satisfy the nexus requirement and we quote the legislative history which has been adopted by several courts of appeals since two thousand and eleven that says the intention here not only was to broaden but was to broaden and remov all claims where a federal official is drawn into state court proceedings based on the status they have as federal officials so that you know if we agreed with you as to the removal why why wouldn't we certify this continues to be cited by federal courts i counted at least six times within the past decade for this very proposition that it specifies what constitutes unfair competition in the district and if used to be cited by the district of columbia court of appeals as well although admittedly on the other points that your dresses so there's no reason to think that it's a bad law and the same is true with proxmire which again continues to be cited and we submit is binding on future panels given the lack of any indication that  c law has changed in the interim the only data point we have on that question is being w management itself and if anything that takes an even more restrictive view of unfair competition but to get back to the question about certification in particular st of all this was passing request in a footnote in the opening greek that did not address the criteria for certification but if we did that to some extent in our response brief but when this court has a guiding principle for certification mentioned the tiller case earlier and tiller case also figures in that case that we cited on certification dial a are in some ways the seminal case on these issues to the regressors certification as well not only the sort of underlying  question and timber says that it's irrelevant when you're when the court is fielding a request for certification that d c mine quote adopt a markedly different view of liability than that which they have here to for help and that is exactly because federal courts are obligated to apply not to amend existing policy and i think it now is the undisputed that plaintiff is asking for a modification of the se doesn't have any data to suggest that d c law is evolving in the way it desires and so under the tiller case and subsequent certification decisions by this court it would be inappropriate to certify it  occasion is an improper means for doing that so we don't think certification is appropriate under the court's case law and also because the text of the d c code requires that the question of law be determinative of the cause pending in this court  at least the president has to defenses that would make the unfair competition question not determinative because if the president is right that d c law under competition law cannot do what and under a whole host of decisions and your defenses should be determined at the earliest opportunity and we think granting us well the six motion is the same time as considering on the merits would be the same opportunity as when we st raised immunity  last i think that's correct your honor there are there are cases that deal with federal officer removal by those who are acting under the authority of a federal officer i'm not sure that would apply here old post office l l c and we believe that under the supreme court's testing great ball and this court's test in bender that the way that the complaint is framed it necessarily presents the issue which is actually disputed insubstantial as to whether the lease provision was violated by the president's assumption of office and here the g s a believes that the president and crumpled post office  listed actions according to the facts alleged in the proximate complain that senator proxmire was voting favorably to positions held by patrons in perspective patrons of the tour business that his that none of them is very close to what we have here but i think one thing is interesting about that but no even though that opinion was written four years after the proxmire case came down there's no reference to proxmire in there so it can't be implicitly not and yes but it's old in relation to the law of the district of columbia hasn't developed but because there's been nobody brought a case like this your honor the st time somebody has to bring a case they have to bring cases it's new it's it's not it's not here before what you say about the language that common law should make pronouncements saying it's limited to cases where where we begin with a statute of course you could limit it but common law is the essence of the common law as it develops over time and the fact that nothing has been before it is not as though it know why this is proxmire and that his group went to the hotel because she hasn't made a promise that if you to patronize her business her husband will do a favor for you but she do favors for those who patronize the business that's a different set of allegations at their word proxmire and i was and it was on clear what they could have done it proxmire to a person who was not an elected official unclear what they protected by whatever immunity you may have and since i believe and i think the court cases have stated propositions section one thousand four hundred and forty two dollars way one is about protecting presidential activities as president and not