will next year the case of brighty capital management katz please the court in my time here i'd like to address two points one substantive one procedural and briefly they are st that jamal bana marrs claim of diplomatic immunity ultimately fails under the vienna convention scheme or szell activities exception which under which foreign diplomat who provides professional or commercial services for personal profit in the united states is not immune for claims related to that activity  nd in granting the one motion the district court didn't give us a chance to develop our case that this exception applies it didn't permit any jurisdictional discovery of facts largely in panama or as control regarding his commercial activities it also didn't allow us to amend too much facts relevant to this exception the court said that we'd taken our best shot and come up short but in reality we hadn't even gotten to the free throw line the relief we're ultimately seeking here that is a remain and to permit amendment and limited jurisdictional discovery and let me jump right to the government's position on the merits of the u s government's amicus brief contends that the commercial activities exception doesn't apply because ben tomorrow was not a diplomatic agent from morocco at the time of the relevant conduct which we allege was undertaken as part of his for profit commercial work the u s argues on page one of  brief that the text history and purpose of the convention make clear that the exception has no bearing whereas here the relevant conduct occurred before the diplomat beast began serving as a diplomat with official functions apart from the as here part we agree with that the morocco and venom are have consistently stated that burnham are has been serving as a moroccan diplomat in new york since november st two thousand and seventeen at the highest ranking level of i think councilor plenipotentiary it's not just backing up for a minute yes as you finish that thought you as i take it on there agree with the state department's general proposition that the the language with respect to commercial activity exercised by diplomatic agent in the receiving state outside of official functions only applies to professional or commercial activity undertaken after obtaining diplomatic status  after while a diplomatic agent and here's the rub your honor at page eight of the government's brief the government says read it for you so before obtaining diplomatic status which is your question an individual is not a diplomatic agent with official functions there is absolutely no support in the government support for that proposition and as a matter of fact it's quite counter  court held that the vienna convention quote premise diplomatic immunity upon recognition by the receiving state right correct immunity is premised but the question of whether someone is a diplomatic agent is a different question and what the vienna convention says is that a diplomatic agent article one defines diplomatic agent as it as either the head of the mission or a ranking diplomat but basically the senior diplomats of the of the mission so what the point aren't you asking really for  two clocks in a way want one hundred and eleven that refers to diplomatic immunity and another for diplomatic immunity itself one that one that defines the question is when does someone become a diplomatic agent for purposes of article forty two and article thirty one are you saying that a diplomatic agent functioning as a diplomatic a could be engaged in activity that would qualify as an exception to diplomatic immunity without actually possessing diplomatic immunity with the language of article thirty none since that a diplomat may not enjoy the immunity to which they are entitled until notification early in the case of someone already in the country so yes that that's precisely what we are saying the point is article if you look at article seven article seven of the receiver you are says that the standing state may freely appoint the members of the staff of the mission that and that is subject only to the provision of article five article eight article nine and article leavened what's missing from that is article ten article ten is the notification provision the notification provision is not the precondition we get to the how it's a broader campaign commercial activity a professional actor the broader campaign was professional activity advising a rd party country on on the public relations of facts of the but the logical inference from that is i mean the logical question that arises from that is why is he seeking this money from a diplomat from from morocco in the point the point is that that the jamal ben amar was in the middle of the relationship between agents for cutter and cutter and and in fact in fact when there was a dispute about money the st instinct of that agent was to seek relief in the united states and money even though money is involved does that become commercial at one dollar want or no i think commercial activity the standard is professional or commercial activity or other and and and i mean it's as if he's serving in the same sort of or all as these other registered agents work just because someone is receiving mean that that is professional or commercial act no no i mean is evidence of profession or commercial activity but the the nature of the activity itself is the sort of lobbying and public relations that that's covered by farah i mean the point is that  you know a u s based lobbyist to counter would hire would be engaged in professional activity yes your argument is that lobbying to bt to improve the status of a country is commercial activity it's professional or commercial activity within the meaning of within the meaning of the standard that's correct it if you're a professional has not become my profession is that your honor it's the i mean it's government relations it's lobbying and it's public relations it's these are all standard professions that that that people people engage in so the point is that a a a a diplomat for country  position or subject a diplomatic jurisdictional discovery merely by pleading that the diplomat was secretly being paid by an outside alleged we've cited specific documents you know showing that jamal but amar was was overseas revealing documents or stolen documents stolen e mails relevant to this case so are  amended complaint isn't just conclusory allegations it is fact based so we're while they are allegations at this point they are allegations based on t based on phone records based on the limited discovery that we were that we were able to use from california which by the way there is more discovery in california that we haven't been able to use that i can represent is r if we sought and we were given discovery we would seek in the st instance some of that discovery that we aren't are not allowed to use because a protective order in california you say that you didn't have the opportunity to see  judge was pretty clear that if mr bright he was unable to respond to the motion to this smith's without discovery quote you can put in your opposition if it's the case that we need this this and this before you  judge and decide that and if i agree with you then we'll have jurisdictional discovery yes your honor and we did respond by saying that we hadn't been allowed any jurisdictional discovery and we needed that the district court also said you know i understand you want bank records and the like and that that was that was our point in the one hundred and twenty one opposition that we needed discovery and that that that discovery would get  argument as to when there is this window of opportunity to sue somebody depends on a people and making the argument that there's a difference between when somebody in using his terms  diplomatic agent versus when that person gets immunity and therein lies the problem immunity is what counts what also counts is that appellant when he comes before you i want you to ignore the jand in the record in which he argued just the opposite that the immunity mattered and the immunity didn't take place until the receiving country acknowledged that that was the event which conferred the immunity over and over again is my question or a question of the united states takes the position that the that the date relevant to  diplomatic status is september st two thousand and eighteen the date on which the moroccan mission st notified the united states mission of diplomatic status why isn't the relevant date november th two thousand and eighteen the date that the united states mission to the united nations registered you with diplomatic privileges and immunities  partisan i think there is ambiguity in various cases which talk about the difference between when the sending state notifies versus when the receiving state acknowledges but for this case your honor doesn't make a difference it doesn't make a difference because the acts that the appellant argues provide the basis of an exception under the commercial activity exception occurs before both of those dates i will say though that the united states position makes some sense in the following way i mean he used a sports analogy let me use one in return a pitcher can throw a ball intending it to be a strike the catcher can frame his mitt to catch it as a strike but it's not until the umpire says it's a strike that it's a strike and by the way given the difference this court supposed to play there's no instant replay so the point is that in this case whether it's september or november in the matters of what appellant says it will make a difference our view is that it applies on the proper notification however the receiving state gets to tell you when you properly notified look at the record three or four times morocco said he's of this he's of that or here's the documents three times the united states and that's not quite right but when the united states said it was right even before he got his blue card in that period whatever the days would be that immunity would have attached and in terms of this concept it may not make a difference because one of the court sorry what is that the commercial activity exception only applies to undertook to commercial activity undertaken after receiving that part not only we agree with we made that argument in the district court in our pending motion to dismiss where we had as a very specific argument that the act is if you will the slate is wiped clean by the grant of the immunity we said diplomatic status immunity prohibits suits regarding acts committed prior to the diplomatic mission so we do believe that the measuring stick of commercial activity and it makes sense because of the text of the v c r which right up front says a person will be quote in except for and we know that because of this case in the district court here in the circuit courts and khobragade which is even more profound that's a criminal case where you have an arrest you have an indictment you have all the proceedings and the immunity is conferred later and it wipes the slate clean the standard is it's a kind of agreement between a receiving state in an ascending state we're going to make sure you're not interfered with your diplomats can operate the way they're supposed to in return your diplomats cannot be in commercial activity that structure reflects both the text and the reason why it is that commercial activity is decided after the person as the only exception but as questions let's say that wasn't the case let's say somehow miraculously commercial activity can it be sustained or revived or somehow survives the grant of immunity this was far from commercial activity in any way you look at all the reasons that commercial activity exception exists in all of the text you don't have to contort yourself you look at it's common understanding according to this court it's a trade it's a business there are other  continuous it's not one off using the concept that somehow p r lobbying might there's a case in point the case was a p r campaign by a foreign country that was not found to be commercial activity you look for its common understanding it's basically if it looks like it and smells like it and look at the four circuit case and tabby and the district court it sets out the kinds of things that could be commercial activity be a tailor be a retailer do something that we recognize it has to be continuous it has to be propriety it has to not look like something other words and this district court here also at the d n c case last year and the d n c case is very interesting because could be written about this case when it the court said that cyber attacks in the dissemination is not the kind of trade or practice and that was under the broader exception the f s a exception which is a broader exception they said it doesn't satisfy the trade or business or commercial activity for that so how could it possibly satisfy for a lower one so to answer your question we believe the united states is spot on correct but if you step back it's not commercial activity whenever it occurred as to the issue of discovery i want to say a word about that and about amendment as well appellant comes forward even five minutes ago and says well we didn't have discovery but then at the same time appellant concedes that they did have can discovery and they had nothing discovery in order to put in an amended complaint which they cite seventy four times as if it had been accepted in the record when it has not been all the allegations that they say provided the threshold to get discovery one thing about discovery in this context you can't look at discovery in this context outside of what it exists in which is in diplomatic immunity discovery in status immunity basically erodes the very reason why there's diplomatic immunity you're not supposed to indulge pellant wants you to look at the text i invite the court to look at the text of article thirty one dollars clause two in the v c d r which says that a diplomat will not be obliged to give discovery period it doesn't say applied discovery unless an exception is alleged indeed that sentence comes immediately after there are three exceptions to immunity they are in lies the concept so i asked the court to look at the idea of why discovery is different in this context and i'd like the court in thinking about that let me suggest three prisms to view this case as you are receiving it st is the the prism of difference there are five levels of difference here morocco gets to decide who declare the united states accepted it the un accepted it the district court with all the record found it existed and that there was not an exception and then recently the united states comes forward that's five levels of deference the nd prism is the one who is the beneficiary of this concept sums to ben amar it's the kingdom of morocco and one hundred and sixty two other countries that signed the v c r for purposes of making sure that they are not interfered with and the rd is the one of reciprocity and the courts couldn't be clearer be careful here as we expand the exceptions and narrow the protection because what happens here happens to our diplomats abroad and this district court was the one who had the record understood which she had given appellant the right to be able to pursue and argue just as you pointed out that she said you can go outside the pleadings this is a twelve be denture emotion and tell us in the opposition what you want and this is what they said they wanted when they were given two opportunities this is it plaintiffs are entitled to discovery concerning ben amar's position with the morocco mission his outside commercial activity for profit his residency in the us and the entire scope of his relationship with cutter you may as well take down the wall of immunity it's basically saying we want to scupper you about everything and that's not in this context what's allowed when she gave them the opportunity to say why they needed more and why the opposition couldn't go forward what they said was one sentence which was not nearly the specificity required under the rule and that's why the district court said you didn't do it when i asked bet i gave you your best shot and you didn't come up with it so in concept i want to summarize the three points st if you want to find when the immunity attaches it attaches in our view when proper notification occurred proper notification occurs not by self declaring it that's the case of the case we can say it but it ain't so until somebody says it so the united states said it was so in the fall of two thousand and eighteen the commercial activity exception applies only when that occurs it wipes the slate clean before and there's good reason why it's wipes the slate clean before and as to whether or not there was a need for discovery  wanted it both ways he had eighty four subpoenas in california he subpoenaed the records of mr ben m r he got what he needed to write an amended complaint which didn't get to the level of specificity and finally the court said you're not understanding  this is not a pleading deficiency this is an evidentiary deficiency and you haven't come up with anything to overcome the extraordinary reasons we have diplomatic immunity thank you for your time please the court martin to tar on behalf of the united states jamal bent on maher he's entitled to diplomatic immunity and dismissal from plaintiff's lawsuit because he is currently an accredited diplomat and plaintiffs have not shown that by them are engaged in any commercial activities after he was registered by the united states and i ask you about the relevant date so you date then amar's relevant diplomatic status to september st two thousand and eighteen and that's when the moroccan mission st notified the u s mission of better mars diplomatic status and so my question is the colleagues why isn't the relevant date november th two thousand and eighteen that's the date that the u s mission to united states registered behnam are with with diplomatic privileges and immunities and i asked that question in the context of united states versus lumumba which seems to suggest that the data immunity is recognized by the receiving date is the receiving day rather than when the rather than the date when immunity was st sought by the sending state chief judge katzman i'll give two responses of factual response in a legal response the factual response is that the notification in this case is a little muddy because the notification on september st and then again on october th was improper under the vienna convention under the under the convention for individuals for accredited to the u n the notification is supposed to go to the u n st and then the un then notifies the united states and it's that particular notification which we know in a footnote happened on october th so that's just the factual part of it the legal part of it  states that recognition and notification are what demonstrates diplomatic status at that particular point is supported by the st reporter's note in the restatement section four hundred and sixty four dollars which states that notification and recognition occurred before an individual becomes a diplomatic agent and you need to become in diplomatic agent the problem potential problem that is not implicated by this case is when there is a difference between the two dates and commercial activity happens in the meantime i think part of the difficulty in this case is that our notification and this is that the two hundred and sixty nine stated that you have diplomatic status as of november th i'm not sure your honor if that was referring to we are recognizing that you have diplomatic status on november th or whether that says we recognize you we recognize that you have status on nov th but it reverts back to the date of proper notification and october th the critical point for these purposes is that it doesn't matter in this case because all of the relevant conduct occurred before september september st so i don't think one can imagine a case where that the distinction matters i don't think that this is this case moving moving to the core argument it seems as though all parties now agree that there is a temporal limitation to the commercial activities exception and that's supported by the text which explains that that commercial activity exercised by the diplomatic agent in the receiving state outside his official functions which obviously contemplates that the person had official functions also supported by the structure as the united states is noted for almost fifty years in a position that is entitled to deference to the commercial activities section exception works hand in hand with article forty two which prefer it's diplomats from acting outside of the scope of their duties and then the purpose of the negotiating in the drafting history is replete refreshments as to this exception in article forty two dollars is necessary to recognize that diplomats are not allowed to engage in these functions and when they do they open themselves up to suit i'm happy to discuss more about the temporal element of the commercial activities exception although i see my time is running down and if not i would turn to the burden issue in terms of the burden we merely ask that the court not replicate the error in some cases where the burden is imposed on the defendant to establish immunity and instead go with the typical burden issue which would burton requirement which places the burden on the plaintiff to establish jurisdiction in the st instance movi discovery basically we everything we said in our brief holds true today this court had it right in arch trading and the same concerns that illuminated the court in that case apply with even greater force here and on my last point and how do we do this in other words i think it that you are saying that the court would be holding that the plaintiffs have not met their burden of jurisdiction under the commercial exit activities accession because they sufficiently allege only commercial activity occurring before the defendant obtain diplomatic status your honor it's a two part in iry the st part i do know is in burden still part of the analysis is part of the analysis we're merely saying that in this particular case point part one of the burden in the traditional case is to establish that the diplomat is in that's been met here the nd part places the burden on the plaintiffs to demonstrate that some sort of exception applies here no sort of exception applies the only pretentious exception that plaintiffs have identified is the commercial activities exception and for reasons why we  explain the brief at length that simply does not apply here to pretend your conduct and that sort of bridges to my final point directly addressed plaintiff's point plaintiffs point that there is some sort of daylight between when someone is a diplomatic agent versus immunity we are aware of no case that recognises that type of daylight in the restatement itself suggests that there are states that notification and recognition occur before an undue individual becomes a diplomat the best case on this point is probably the dual izzy's case we cite it's from the th circuit not the nd circuit but it talks about how the party can a court can receive a certification that an individual is a diplomatic agent and then immunity quote flows from that status and then the final point there is that plaintiff's distinction between diplomatic agent on the one hand and immunity on the other would make  arbiter of deciding when someone is or isn't a diplomatic agent when there's activity that occurs before a notification or recognition and that simply isn't what has occurred in the past one hundred and thirty years with courts giving almost total or total deference to the state department certification if there are no further questions i would simply like to thank the court for providing the united states with the opportunity to address it thank you thank you position is not that this court has to make a determination our position is that the sending state is who determines are are their own diplomats as i said article seven sending state may freely appoint the members of the staff of the mission and actually what what abdulaziz says is it is the foreign country that actually ranks its diplomats not the state the head of the mission in an article for there has to be advance notification and agreement before someone can be the head of a mission that's the highest ranking official with the mission article seven says that i am receiving state may but is not required to require pre approval for military attach is naval attachs and the like but no such requirement applies to ranking diplomatic agents  is in the th edition but i think she said this consistently taking article ten the notification provision together with article seven the provision i just cited and article thirty nine dollars it is clear that notification is not a limitation on the right of the sending state to freely appoint members of its diplomatic mission yes your honor our point is there is there is when someone is a diplomatic agent as s government recognizes certifies whatever word you want to use at that point it's at that point that he's entitled to the privileges that he enjoys the privileges and immunities that attach to being a diplomatic agent but but the but the prohibition of article forty two dollars on commercial activity still applies in the interim when he's acting in his in in his official function as a diplomatic agent if you read ben amar's declaration here he will say that since november st two thousand and seventeen he has been doing diplomatic activity at the highest rank for morocco and and what what the position of the united states does here is that it rewards delayed notification so you would you you grant immunity that's obviously retroactive and we don't argue that that but for the exception there wouldn't be there wouldn't be immunity but but the united states position means that morocco by deferring notification after the appointment of ben amar on november st two thousand and seventeen actually rewards him by