please the court and patricia mallette i represent the bikini plaintiffs in this case these individual bikini landowners for the last thirty years have done everything that the law and congress the and fifty's twenty years ago this core held that those takings claims had to be dismissed and presented instead into a newly created nuclear maims tribunals but in so doing the court the jurisdictional statement was made in conjunction with this court's words in conjunction with the provision of the tribunal to provide just compensation the issue in this case is whether that jurisdictional provision continues to of course congress can pass it and if it gives us money tomorrow we will happily dismiss our case if it gives us the just compensation to which we're entitled but it is never been the answer under fifth amendment that you can go to congress and get them any anyone can do that under the first amendment off that the jurisdiction is withdrawn when replaced by an alternative tribunal that's what the fifth amendment commands and to say that you can go to congress to is a truism if you go to congress where that provision which there are not actually reduces their rights because it says we want to retain your petition for redress of grievances unless there's been unanticipated consequences but i have never heard and it would be extraordinary to say that the fact the first amendment has a petition clause that takes jurisdiction away from courts under the tucker act we need to find clear on the local unambiguous intent to withdraw tucker rector stiction of the fifth amendment claims and that's not here because as this court said twenty years ago it's  package deal the withdrawal of jurisdiction comes in conjunction with the provision of an alternative tribunal if that tribunals not be or if just compensation it's not fair there will not be a withdrawal of jurisdiction that operates by itself apart from the rest of the agreement you have to read all the agreement together and if the tribunals not there and if you look at article ten has the jurisdictional language you're talking about article four says we're taking you put them together says those claims that we just took away in article ten are goin just an adequate settlement taking all of those together means that if you don't have a tribunal anymore which is essentially where we are if there is not just an adequate compensation and no one thinks that one third of one percent is just adequate compensation under any scenario full settlement of all present future of the government and then i could go on and on you read it as i read it how does a cork get around that kind of sweeping language which tells it before settlement and the agreement of this cork has no role in that whatsoever no with respect to what is said and this is what this court said twenty years ago is that there is no rule when there is an alternative tribunals and we have to read this language as a whole in light of the supreme court's unequivocal directives that you have to find not that you could or even if it's more likely than not that not the jurisdiction that's withdrawn but the congress took the deliberate crime equivocal conscious step of saying fifth amendment rights will be taken away and will not be enforced be cardless of whether just compensation is provided and i submit that in plenty of other statutes whether that's the settlement agreement that you had before you an opportunity or and which had much more expansive language than this and you still entertain the takings if you look at the language in games and more if you look at the language  just and adequate settlement jurisdictional provisions are withdrawn in conjunction with the provision of an alternative tribunals for just compensation and the ambiguity is that intended to operate exclusive of the existence of the and its ability to provide just compensation and that is more ambiguity than you had in a case like st cyr where the congress said three or four times jurisdiction is withdrawn never hate us and the courts didn't do that no i'm not aware any court that actually of the just compensation to comic converses leisure which may never happen is not the fifth amendment standard vat is suspension and displacement of the fifth amendment and to say that the court that the congress intended congress to say that what it was doing here was a record an agreement that said we promise just an adequate compensation but if it doesn't work we don't care there's still no jurisdiction you can't read the you can't read the that under the government's reading if someone came up with a new claim today they found another island missing they would say the court you have to kick them out of court and tell them to go to that tribunals that has them out of business sign hanging up i don't see that compelled by the language of the statute could you read it that way perhaps but i don't think that's what they're doing keep in mind they were talking about claims in the past that had arisen it's ordinary if one thinks about arbitration to have sweeping language to send parties for their dispute over the broken toaster to arbitration but if you get there and they are a traitor doesn't show up or is biased or the system breaks down entirely and you go to court to enforce your rights no one looks at the arb agreement a matter of policy in the language and says sorry you just have to stick with what you had there you have a right to enforce your rights particularly the fifth amendments just compensation cause this is unique it is a cell executing a constitutional right what does that mean that means congress cannot by an act of legislation legislation it cannot by an international agreement it cannot decide for itself what just compensation shall be that i at the end of the day it's just a function they can set up first procedure and try to provide just compensation if it works that's going to the court will have no business to do that well you've got a stand why did the state department recommend that congress not effect on human beings personal injury plaintiff's got to the tribe and before the polls did and the amount of money required to compensate them on top of a number of other dynamics between the fund so that when the people with the nothing left to pay them with and part of the problem was that by the time the tribunals adjudicated these things in the late ninety's and two thousand the science had changed very much from the seventy's and eighty's with the effect of radiation is on people and that was the change under which the changed circumstances petition was presented to congress and the state department said we don't think that's good enough but that's very different from what the justice department stood in this court twenty years ago saying and what it told the supreme assure compensation and this court withdrew jurisdiction on their understanding that there was a promise here and said we will take the government at its word we will presume it will act consistent with the constitution which is the right thing to do it now they're welcome i mean the the party you're suing here is the united states government can't sue them unless you have a waiver sovereign immunity that kind of withdrawn that waiver and they have some just so how do we get around that ok how do we get around the political question doctrine even if we do get the argument on jurisdiction we still have problems don't we know on any of those grounds first of all the withdrawal of jurisdiction is  treatment tribunals and it does not meet the constitutional standard we are forbidding any court to enforce the constitutional standard and provide the constitutional shortfall and that standard is not met by this language it is not that there you have to find evidence not that congress could have might have should would have under one reading but that congress deliberately consciously and unequivocally prevented recourse to the courts and that's not here when you have happens deal of jurisdiction taken from courts because in new tribunals get compensation from the tribunals right some people to yes but i don't know that anyone got some people are unhappy and some people are happy and that congress has to decide if they've given adequate compensation and the least under the fifth amendments just compensation plus the fact that my neighbor got compensated for the taking of his plan or for the physical injuries that he suffered does nothing to diminish my right to full compensation under the up to does when you say by the way i'll take all of my claims to that court over there and write every other claim that i possibly could have off and i say it about six was a government to government trust board agreement here between the marshall islands and united states government and it was not i mean there's two answers at that the first one is that agreement by the republican version that wasn't republic  now the republican marshall islands was not that we will sign things off and we'll see what works the tribunals and nothing happened so well it was as this court set it in exchange for a contract you know that will provide just compensation and if it doesn't we will look at this again and that is what they had they were signing up for was a provision that was consistent with when ship which was on the books if congress wanted to say there will be no t between the parties to litigation and it's a substantial constitutional question which again informs your construction here whether the united states can contract itself out i don't think it can in her contract with virginia to have a great medicaid plan under which virginia says but patricia let's constitutional rights of rights and under that plan or in any way related to it are hereby given away for jim you can't do that the united states government can't do that under any circumstances and in we think that was clearly an error if congress has failure to act could prevent the writing of this claim then the claim could be kept at bay for ever by congress failure to act could be but the but the very nature question with respect to congress in that case it was the plaintiffs who tried to argue that a claim should not be seen as accruing until the government gives some definite know about payment and if you said no we're not going to accept that you did you know that it could be used as as a sword by the government as well as by plaintiffs and harems that assume plaintiff's argument no cause of action against the government for taking could accrue until the government gave expressed notice of its engine not to act could the simple expedient of governmental silence for an indefinite period functions constitutionally committed to another branch and there simply is no intrusion here there's no questioning of the recognition of the ongoing isn't funding something congress constitutionally that's something that could have been judicial officers had no authority over i thought that was constitutional law want to one they punt things certainly it's true your honor that under article one section nine case of taking on or it is just as in any other taking skis comment like a separate you told everyone that you were going to agree with the assignment of these claims to the tribunals they were assigned there you gave up all your rights to any kind of judicial action doesn't that put it squarely then in the congress's ballpark to fun that remedy your honor we don't think so again for several reasons first of all when you say we agreed might might fly it's not injury well and you know the problem with this sort of arrangement as we've seen often is there'll always be  some part of the indian tribe who doesn't agree that they were properly treated under the trust arrangements they'll always be some claimant that doesn't feel like that they were properly treated but we have to deal reason to treat united states citizens different than we would treat anyone else we don't in this country we give everyone equal rights and we're not going to treat their rights any different than anyone else well your honor no i agree certainly you're correct in terms of they're there so why is there is a political question why didn't you make it a political question by your agreement and by your reliance on congress to fund and funding is a congressional duty the congressional duty to fund which comes first which comes in or one of the constitution does not trump the obligation of the court to order compensation when a valid compensation claims were before it but also congress has done nothing to suggest that it would disapprove of resolution of this litigation indeed in the changed circumstances petition the marshall islands government indicated in there that its position was perfectly consistent with this ongoing litigation and that other than half the requests that happen in which they haven't yes rather but but again it we the fact that congress has not acted does not think the original which is why that is a political question obstacle and there is political question here and that is the united states government has several a claim with the martial law it runs through its executive for several reasons first of all if you refer to it on ink for example on the issue and don't want to think there was the authority to executive to settle claims with respect to its power to recognize foreign governments there's no question about the recognition  r government what we're fundamentally by the way what are you asking you to do you want to tell congress to pay you the full amount but doesn't use that congress has again political duty to decide whether it pays the full government in the united states and one of the results of that assignment and that executive agreement was the united states government was given priority over certain foreign creditors and the assets that were being held by the new york insurance commissioner and those foreign creditors claim that they had suffer and just as you said this court said foreigners can prove their claims here and now the court rejected the claim on the merits because it said that priority rule did not invade reason reasonable investment back to asia and in consultation but in judea painted on the merits no political question merits that's exactly what we're asking this court to hear we're not asking you to look to the question that everyone we're asking you to resolve the taking question that results through the operation and partial certainly this court would not think that congress could just ignore the constitutional obligation that lies behind that word upin there's no violation of article one whenever a court directs congress to fulfill its constitutional obligation the only issue is whether whether  constitutionally assigned to congress so it's not enough if it was we disagree with that reading of what the study was missing let indicate we think the scope of the settlement here clearly indicated that congress intended and recognize that there would be the ultimate just compensation claims if the alternative system did not provide sufficient to fulfill the constitutional obligation but even even so we think ultimately congress has to respond to the direction this court as with any other board language expressly covers only article ten and eleven what about a challenge to be adequacy of funding for the tribunals itself which would be under article four of this agreement and it's withdrawal of jurisdiction is limited to claims in articles ten and eleven well yes it does work for the articles ten and they tend to be talking about a claim that a right under article for the sufficiency of the tribunals funny while the article twelve references claims describing oracle to and eleven yes or of course the main article there is article ten in the language of payments on the drive you will process based upon all arising under or that in any way are related to it's quite what about one argument that this withdrawal in itself is contingent upon a agreement that there would be compensation under the alternative tribunals which of course hasn't happened well that's this their argument that is a well there's simply no language to support that kind of construction the language in article twelve is just so clear and broad  perhaps in the marshall islands but not in the united states you know this was a settlement your honor united states fulfilled its obligations under the section one seventy seven agreement when it transmitted that payment of one hundred fifty million dollars to the six  united states the united states played no role in its proceedings and so if the tribunals simply shut down or was never established as was required of the section one seventy seven agreement that would be a question for the marshall islands at the most it could be raised in congress perhaps for the governments to address the government government government goshi asians for example the compact has been recently really go shit in two thousand  we have to submit your honor that the language here is quite clear and it is unlike the language presented in any of the other cases that players decided blanch yet the statute when she had the regional rail act in fact provided for review in the supreme court directly the provision that owns counsel has noted that pertain to no review of certain orders of the special court didn't apply to the issue in that case that applied to the threshold question of whether a bankruptcy which unlike one santorum plan said did contain statutory language that was directed directly at court proceedings however in that case the supreme court held that the language in the statute there referr way they're right they have a potent one that's the first i've heard the ten percent united states and this is the first i've heard of that assertion in this litigation they have they did not make that allegation in their complaints even during the court circumstance provision yes but section one seventy seven of the compact instructed the parties to negotiate as a subsidiary agreement which was in fact initiate it so it is time to provide for the just adequate compensation of course that was the one seventy seven agreement which indicates clearly that the parties intended to one seventy seven agreement to provide just an adequate compensation now attorney general thornburgh send a report  n i think it was january two thousand and three wasn't it in which he said manifestly inadequate why isn't that the government telling us what our duty is  as far as i can tell the only basis for that legal conclusion that was rendered simply because the wars that were made exceeded the amounts that were then remaining in the tribunals fund so it's not as if marshall so your honors i would again simply like to say that this the case of course of all the different difficult issues but really the central issue here is quite straightforward and that is just settlement liquidation satisfaction of all disputes differences claims her claims and matter to get the place it was broader than what we have here at this court entertain to taking his claim that rules out that's a bad agreement and challenge that agreement for not directed to a lot of claims and i can imagine that kind of the definition of what those claims are would be something to review but when you take away the power of the court to even look at it jurisdiction claims and separately disputes arising under article four of those are called claims as are called disputes arising under article four and i'm on page two thirty two of our comics here just distinguishes and it structurally distinguishes about article two an article for those or distinguish the article to an article for our distinguish those types of disputes or distinguish there is certainly enough ambiguity it specially when you add to it reading the agreement as an absolute  l and that it was a trade off here of just compensation one just compensation form for another and no statement remember if you find you're sticking with his problem the case doesn't end you then have to decide whether it's constitutional for congress to do that we're trying to avoid the constitutional question here they don't win because of that they lose that in our view on constitutional grounds but we don't think the court could do it we think there's more ambiguity here than in other cases where courts have strained to avoid those situational problems reading  we respectfully disagree with our closing counsel was their supreme court of public review over the special court's decision yes the issue in the case is whether you could bring you can bring a takings claim for the first time in the supreme court  state you can't do it is an individual the question is whether the jurisdiction had been withdrawn when the alternative procedure to which reals are supposed to go to get their compensation didn't work and if the fun enough funding wasn't there covers it provid that also cover all but there's a big difference between claims and litigation and the jurisdiction of the brickwork in the united states isn't there you're a lawyer you know the jurisdiction is in our power  power to act we're not going to quibble about whether a claim was satisfied or defined claims are fine change circumstances because we don't even have any power to act yes or no no's other cases you know times change claim change circumstances change courts having the power to look at them can find reasons to go back and reconsider but that's a lot different from no one of the united  is that congress does not have control over the waiver of sovereign immunity with respect to just compensation claims that guarantee is self executing is this court said in hair for example again sovereign immunity does not protect the government from fear them imitate his claim constitution but let me if i may i just want to one last point i mean you're just in terms of the language because part of the issue is how to interpret such sweeping language in r p mury the terminations language they are included not only the claims themselves but all claims capable o of a rising out of the underlying relationships or related to justice in this case those claims certainly if one would have thought that some of the grain it takes to fall back takings claim in that case it was just as related to arguably as what we have here but there this court found no barbecuing those claims in terms of the in terms of the issue of the settlement and whether congress and the executive did something here i also want to note a couple of things if i may again as as we indicated in our most recent twenty inch a letter cases like garamendi and read the covert make absolutely clear that even when congress or the executive or congress and the executive together act even in the realm of into national affairs they cannot break the inst the individual constitutional guarantees that are in body in places like the fifth amendment they cannot give themselves powers that exceed what the lines that constitution draws are beyond what they can do  i've got my sewing for life i'm not sure what i'll do is all the court but maybe i'll enjoy the rest of my my salary without anything to do but if they can dissolve the court they can certainly tell me that i can't hear certain cases right not with respect to just compensation claims they do not provide an alternative mechanism that is what the self executing carry him it means congress must one way or another fulfill that constitutional obligation of course it has chosen to do so by setting up courts like this one with respect to the settlement i just wanted and also because there's been a lot of talk about you settle these claims away again our clients did not settle these claims and there was r really end of political questions are when you were deciding whether a court can acknowledge actions outside of the scope of one's government one government is that good on behalf of one and now we're going to say but will acknowledge your actions regardless of what your government has done no you are it's not a political question at all things because there's an important distinction between the constitutional power of these committees the executive recognizing which government for example is a legitimate government of a country like russia and in one nine hundred thirty three recognized the soviet government as the legitimate government of that country and therefore that recognition then made legitimate sovereign entity even under that international one notion of a spouse and settlement was capable of entering in such agreements and that the trial court judge miller beer herself recognized that that was not a fair question as to judge walton  whether an entity of this character can it can enter into such a similar event and as the courts that the united states corps that repeatedly looked at the status of the marshall islands and its components during the trusteeship period held that clearly was not a foreign state in the international system it was not recognized by the united states as such what do you do what do you do with the mr simkins point from article one that the government of the united states provides the sum of one hundred  correctly derived that conclusion from some of the other pieces of language like the fact the compact act in section one seventy seven b says that the set of equal just an adequate the fact that article two section seven refers to the fact that the awards will be quote paid in full the fact that the government told this court and i still don't see anything about that being an initial what if one hundred fifty million dollars proved in adequate to quote pavey awards in million dollars could only constitute an initial something but in any case your honor even if even if it were the intention of the united states to say that all you get is a hundred fifty million this agreement constitutes the whole settlement yes and this agreement sets up the entire process that we have here well but we have to process the courts aren't involved this is the tribunals involved it says or it doesn't work you can go to but there is nothing that ever says and the courts shall have jurisdiction in fact that they shall not have jurisdiction but your honor that the system that was set up involved as you say the diversion of the claims into the alternative tribunal process and the expectation that that process would provide the constitutionally just an adequate compensation it was hard by the constitution if that system failed in italy there was the fall back through the changed circumstances petition but our our submission is that if if there is a family here to say what is constitutionally do congress cannot in the end i read one more line yes or it is understood that this article does not permit the congress of the united states arrives in appropriate yes i'm i'm just your lawyer how do i get around all the slang well there is other language you just can't say well because the constitution self executing through legislative action but i would just mention one other party really there's another part of the agreement which is an indemnification which says that if something the united states does get chris judgments as a result of this then they can go to the marshall islands government to get