[00:00:00] Speaker 04:
Well, good morning to everyone.

[00:00:03] Speaker 04:
And on behalf of my colleagues, Judge Bybee and Judge Desai, welcome to the Ninth Circuit.

[00:00:09] Speaker 04:
We are here for oral argument in the case of United States versus Nasri.

[00:00:16] Speaker 04:
Counsel have 15 minutes aside.

[00:00:18] Speaker 04:
Counsel, can you both hear me?

[00:00:21] Speaker 01:
Yes, Your Honor.

[00:00:23] Speaker 01:
Yes, Your Honor.

[00:00:25] Speaker 04:
Great.

[00:00:25] Speaker 04:
All right, counsel for the appellant whenever you are ready.

[00:00:30] Speaker 02:
Good morning, Your Honors, and may it please the court, Ed Williams from Borg on behalf of claimant appellant Mr. Yudis Nasri.

[00:00:38] Speaker 02:
I would like to reserve two minutes for rebuttal.

[00:00:41] Speaker 02:
The United States asked this court to conclude that the rights to any property anywhere in the world may be adjudicated by a federal court without any possession or control of any kind, so long as the property is allegedly connected to some crime in the jurisdiction.

[00:01:00] Speaker 02:
That extraordinarily broad grant of federal court jurisdiction has at least three issues requiring reversal.

[00:01:08] Speaker 02:
First, it is inconsistent with the Constitution's due process clause.

[00:01:13] Speaker 02:
Second, it is inconsistent with the Supreme Court's unbroken line of cases holding that interim jurisdiction requires actual or constructive possession.

[00:01:25] Speaker 02:
And third, it raises significant Article III concerns.

[00:01:30] Speaker 02:
As recently as in James Daniel Good real estate, the Supreme Court located the requirements for interim civil asset forfeiture actions in quote the fifth and 14th Amendment due process clauses.

[00:01:46] Speaker 02:
In that case, which was decided after the current language in Section 1355B was enacted

[00:01:54] Speaker 02:
reiterated that interim jurisdiction requires actual or constructive control over the race.

[00:02:03] Speaker 04:
So, counsel, you, I take it, acknowledge that if you're right, that is entirely inconsistent with our prior cases, 1.67 million in Petro-Saudi, where we held the exact opposite, right?

[00:02:23] Speaker 02:
Your honor, I would disagree.

[00:02:25] Speaker 02:
I don't think that the support reached the constitutional due process question and approximately 1.67 million are petrol, Saudi oil or Al-Bai'i.

[00:02:36] Speaker 04:
But we did hold that actual or constructive control is not necessary, correct?

[00:02:43] Speaker 02:
The court in approximately 1.67 million stated that it did not believe that constructive control was required for foreign civil asset forfeiture.

[00:02:55] Speaker 02:
I think that's a statement from the court.

[00:02:57] Speaker 02:
But there are a couple of things that are important to note about that case.

[00:03:00] Speaker 02:
One, the court in approximately 1.67 million actually had what we don't have here, which is a high court order from the Cayman Island High Court restraining the part.

[00:03:12] Speaker 02:
So that's the council.

[00:03:14] Speaker 00:
Mr. Williams, would you agree that we are bound by 1.67 million?

[00:03:22] Speaker 02:
I believe this court is bound by 1.67 million to the extent it interprets the statutory question.

[00:03:30] Speaker 02:
But I don't believe this court is bound by 1.67 million to the extent the court believes it answers the constitutional question, which it doesn't even purport to answer.

[00:03:40] Speaker 00:
So let me ask you this.

[00:03:42] Speaker 00:
If you agree, and I think you just acknowledge that you do, that we are bound

[00:03:48] Speaker 00:
by 1.67 million, at least to the extent that it held what it held as to the statutory text, would the better course of action be to overrule 1.67 on bonk for our court to reconsider that decision on bonk to clarify this issue, which I think as you were just starting to argue was not squarely before our court in 1.67 million?

[00:04:15] Speaker 02:
Two responses.

[00:04:17] Speaker 02:
First, to the extent the court believes it cannot reach the constitutional question because 1.67 million answered the statutory question, yes.

[00:04:25] Speaker 02:
There is an en banc would be the best course for review of that particular decision.

[00:04:30] Speaker 02:
I don't believe that 1.67 million forecloses the constitutional question, but I would understand that this panel took a different view.

[00:04:37] Speaker 02:
But I also want to offer a second lens on 1.67 million.

[00:04:43] Speaker 02:
recent decision in fold so even if you assume that 13th that Congress may alter the personal jurisdiction requirements or in rim jurisdiction which it has not reported to do fold is particularly instructive about what Congress must do in

[00:05:01] Speaker 02:
Congress must do so in order to alter long-standing personal jurisdiction requirements.

[00:05:07] Speaker 02:
And so I think that full disturbs 1.67 million.

[00:05:11] Speaker 02:
And in my view, 1.67 million is irreconcilable with full determination about what Congress must do when it wishes to alter personal jurisdiction requirements

[00:05:25] Speaker 04:
And it did not do so.

[00:05:27] Speaker 04:
So Council, on that point, I'm looking at your most recent supplemental brief, and I'm looking particularly at pages 18 and 19 of that brief.

[00:05:44] Speaker 04:
And you talk about how the statute in this case

[00:05:49] Speaker 04:
by contrast to, I guess, fold, creates jurisdiction over an expansive and open-ended universe of claims in 1355b2.

[00:06:01] Speaker 04:
And then you go on to say that this does not reflect the political branch's balanced judgment about fairness.

[00:06:11] Speaker 04:
So I take it that what you're saying is that Congress did

[00:06:17] Speaker 04:
purport to do this, but they didn't do it using balanced judgment.

[00:06:23] Speaker 04:
They exercised their judgment in passing this statute in an unconstitutional way, and we should say that directly.

[00:06:32] Speaker 04:
We should say we in the judiciary will review the political branches who are speaking in one voice in 1355 and make our own judgment

[00:06:44] Speaker 04:
that this wasn't balanced on their part, that we don't think they looked at the right things in passing this statute, that, you know, they just got it wrong here and we're going to overrule them.

[00:06:56] Speaker 04:
That's what you're saying in your brief, yes?

[00:07:01] Speaker 02:
I don't think that's quite what we are attempting to articulate, Your Honor.

[00:07:06] Speaker 02:
I think that what we were trying to say there is that if you look at the PSJBTA, which was at issue and fold,

[00:07:14] Speaker 02:
You have expressed statutory language that says that, according to Congress's view, persons who meet the requirements under the PSJBTA are deemed to have consent to personal jurisdiction.

[00:07:27] Speaker 02:
You don't have that kind of clear language in 1355B.

[00:07:31] Speaker 04:
I don't see that, because I see in 1355 and in 1.67 million, Judge Wardlaw, in her opinion, cited Judge Alphonse de Mata's legislative history.

[00:07:43] Speaker 04:
But the statute says whenever property subject to forfeiture is located in a foreign country, an action for forfeiture may be brought as provided in paragraph one.

[00:07:58] Speaker 04:
So I don't understand what Congress could have been clearer of when they say whenever property subject to forfeiture is located in a foreign country, forfeiture may be brought.

[00:08:12] Speaker 04:
So what is it that Congress was supposed to say in this statute that in your view would have worked?

[00:08:18] Speaker 02:
Again, Congress could have mirrored the language in the PSJPTA and said express

[00:08:25] Speaker 02:
B was conferring personal jurisdiction over the interim proceedings.

[00:08:30] Speaker 02:
It does not do that.

[00:08:31] Speaker 02:
In fact, 1355 B reads as a venue statute, as a venue provision, whereas 1355 A reads as a jurisdictional provision.

[00:08:39] Speaker 02:
I also want to address, Judge Bennett, your statement about the senator from New York's legislative history, which is the only legislative history I've seen cited in numerous court decisions about what 1355 B is supposed to be doing.

[00:08:53] Speaker 02:
If we accept the Senator from New York's statement about Congress's attempts and one Senator's statements about what Congress is trying to do here, you have to accept the rest of his statement, which is that Senator de Amado believed that even in interim jurisdiction international civil forfeiture actions, there would still be minimum context required

[00:09:15] Speaker 02:
in order to fluctuate.

[00:09:18] Speaker 04:
So basically we should reread the legislative history and rule that Judge Wardlaw in her opinion and Judge Wardlaw's panel just read the legislative history wrong.

[00:09:32] Speaker 02:
I don't think I'm suggesting that they read the history wrong.

[00:09:35] Speaker 02:
I'm suggesting that Senator De Amato does say that he believes that Section 1355B is altering the rules for conservative control.

[00:09:44] Speaker 02:
But I'm saying if you accept Senator De Amato's first piece

[00:09:47] Speaker 02:
which is that 1355B changes constructive control, you have to accept his second piece, which is he believed you required minimum context.

[00:09:56] Speaker 02:
And this court's decision in Obaid forecloses minimum context or the consideration of minimum context.

[00:10:02] Speaker 04:
And you've already said in your briefs in this case that Obaid

[00:10:09] Speaker 04:
whatever the right pronunciation is, was wrongly decided, and that Judge Rawlinson, I was also on the panel, just completely got it wrong, and that our decision should be overruled in bank.

[00:10:24] Speaker 04:
You, I guess, conceded in your briefs that even though we got it dreadfully wrong, the R3 judge panel can't overrule it, that that has to be an in-bank court, yes?

[00:10:36] Speaker 02:
Yes, as far as the minimum context review that I believe that that is foreclosed.

[00:10:41] Speaker 02:
We don't believe that what's foreclosed.

[00:10:44] Speaker 02:
of whether constitutional due process requires actual or constructive possession of the race to be consistent with interim jurisdiction.

[00:10:54] Speaker 02:
And even, your honor, I know I'm running short on time, even if the court were to believe that it was foreclosed on a due process question, the Article III concerns are still particularly present on the surface of this case.

[00:11:07] Speaker 02:
What the government's position is, is that even if the government of a foreign country said they were

[00:11:14] Speaker 02:
expressly going to reject the order of a United States court.

[00:11:18] Speaker 02:
In the government's view, the court would still have jurisdiction to adjudicate the rights of that foreign property vis-a-vis the world.

[00:11:26] Speaker 02:
That is an extraordinarily broad grant of jurisdiction that is inconsistent with the job of federal courts to not to issue advisory opinions.

[00:11:36] Speaker 04:
Has Lichtenstein said that here?

[00:11:40] Speaker 02:
The only statement we have from, we don't have any statement from Lichtenstein.

[00:11:44] Speaker 04:
What we have is- Right, but we don't have a statement of Lichtenstein saying, United States, we don't want to hear from you on this money.

[00:11:55] Speaker 04:
Go away.

[00:11:57] Speaker 02:
That's correct, but you also don't have here what you had an approximately 1.67 million was a high quarter from the Cayman Islands, or would you had a petrol Saudi oil, which is an order from the high court of the UK, or with the Fourth Circuit had a potato, which is a high was an order from the high court of Hong Kong.

[00:12:13] Speaker 02:
And so, the usual order the reason we are here.

[00:12:16] Speaker 02:
is because the usual order of events from the federal government wants to seize foreign property is they go to the foreign government and their courts and get a restraining order.

[00:12:28] Speaker 02:
We don't know this is why I believe the court and is now withdrawing opinion romantic to the district court.

[00:12:32] Speaker 02:
We don't know what the Lichtensteinian government's position is with respect to the burden of the bank funds and the reason we don't know is because the

[00:12:41] Speaker 02:
only statement about restraint is in the FBI agent's declaration attached the second amendment complaint for civil asset forfeiture paragraph 21 which says that Lichtenstein has restrained the funds.

[00:12:54] Speaker 02:
We don't know if that is a result of comedy or if as is required and again going back to 1.67 million but 1.67 million says is that when a foreign government restrains funds through a restraining order or issues a high court order

[00:13:08] Speaker 02:
It is acting as the asian That's what gives a cons

[00:13:17] Speaker 03:
How much proof of cooperation would we have to have?

[00:13:22] Speaker 03:
So if there was a communication between, let's say, the State Department or the Justice Department and, let's say, the Attorney General of Liechtenstein saying, would you seize these funds?

[00:13:33] Speaker 03:
We'll have proceedings, hope to have a court order.

[00:13:36] Speaker 03:
And Liechtenstein says, yes, we'll hold the funds.

[00:13:41] Speaker 03:
Is that going to be sufficient?

[00:13:44] Speaker 02:
Your honor, I think that the, I want to be careful about getting too close to the contours but I'll tell you what one what this court has said in previous cases is as at least or at least been suggested by the facts of previous cases, is that a high

[00:13:59] Speaker 02:
sure answer.

[00:14:00] Speaker 02:
If you have a high court order, then you definitely have constructive possession.

[00:14:04] Speaker 02:
Whether something less than that creates constructive possession, I'm hesitating to market.

[00:14:10] Speaker 02:
But I do think that what ultimately has to be believed by the district court is that its order will be effectuated.

[00:14:18] Speaker 02:
And that's how you both deal with the due process problem and the Article 3 problem.

[00:14:22] Speaker 03:
Okay, so what would happen if a high court of Lichtenstein says, yes, we will order you to hold this, but we won't guarantee that the order from the U.S.

[00:14:35] Speaker 03:
will be satisfied in full?

[00:14:37] Speaker 03:
So let's suppose that the High Court of Liechtenstein says, yes, we'll hold this and we'll consider the U.S.'

[00:14:43] Speaker 03:
's claim, but that claim must be considered.

[00:14:46] Speaker 03:
Let's suppose that Thailand had had dealings with Nasri as well and has its own forfeiture laws.

[00:14:52] Speaker 03:
and goes to Lichtenstein and says, well, as long as you're freezing the funds, we'd like some claim on this for all the damage that Nasri did as well.

[00:15:00] Speaker 03:
Now, if something less than full control by the US is what's going to be made available in Lichtenstein, will that satisfy the due process clause?

[00:15:12] Speaker 02:
I think so, Your Honor.

[00:15:13] Speaker 02:
I don't think full, I don't think the existence or the possibility of future proceedings in the foreign country forecloses constructive control.

[00:15:22] Speaker 02:
And I think Petro-Saudi oil to some extent teaches this.

[00:15:25] Speaker 02:
There, there was an arbitration order that was at issue in the UK court.

[00:15:30] Speaker 02:
The UK had issued an order, the UK High Court issued an order restraining the

[00:15:34] Speaker 02:
funds for the purposes of waiting on the adjudication from the U.S.

[00:15:37] Speaker 02:
court.

[00:15:38] Speaker 02:
But my understanding of that proceeding is that there were further going to be anticipated future proceedings, and that doesn't foreclose the presumption of constructive control.

[00:15:48] Speaker 03:
The reason that I ask counsel is that, as you may have seen in my separate opinion, this feels more like a quasi-in-rem action, which all we're doing here is deciding as between us and NASRI,

[00:16:00] Speaker 03:
that we have a superior claim to title, which Liechtenstein may or may not honor in full.

[00:16:06] Speaker 03:
If we have the property in our control, then we can declare title as against the world and all of the funds come to the United States.

[00:16:15] Speaker 03:
So that's why I ask about whether Liechtenstein would still have the power to sort of divide this up and say, okay, you ask, you get a million dollars, but there's other claimants here, so you don't have full title to the funds here, whether that would satisfy due process.

[00:16:30] Speaker 02:
Well, Your Honor, I'm inclined to agree with you as much as possible, and but the quasi and rim proceeding here is not available is both foreclosed by Supreme Court and Ninth Circuit precedent that civil asset forfeiture proceedings are in rim proceedings.

[00:16:45] Speaker 02:
And so I think that the question of whether these civil asset forfeiture claims are more akin to quasi in realm because there are limited number of potential claimants and the rights are being adjudicated vis-a-vis those limited number of claimants.

[00:17:00] Speaker 02:
That sounds right to me, Your Honor, and I think I agree with it.

[00:17:03] Speaker 02:
But I think that that question is foreclosed both by Ninth Circuit and Supreme Court precedent.

[00:17:07] Speaker 02:
And I see with that my time at this point has expired, but I'm happy to answer any other questions before I sit down.

[00:17:12] Speaker 04:
I have one or two other questions, and we will give you at least your full two minutes for our rebuttal.

[00:17:19] Speaker 04:
We've taken up a lot of your time with questions.

[00:17:22] Speaker 04:
So as far as you know, your client is still outside the jurisdiction of the United States?

[00:17:29] Speaker 04:
That's correct, Your Honor.

[00:17:30] Speaker 04:
All right, and in terms of notice of these proceedings in the district court, you concede your client had full notice of the United States' desire to seize these funds.

[00:17:45] Speaker 02:
I concede that our client had actual notice, whether he was not served personal notice in the context of a service, but he did know that the proceedings were occurring and did hire counsel for the purpose of being able to adjudicate the funds.

[00:18:00] Speaker 02:
That's correct.

[00:18:00] Speaker 04:
So he had actual notice and a full opportunity to be heard both in the district court and in our court?

[00:18:08] Speaker 02:
Yes, Your Honor, but I think if the place you're going with this is that that satisfies due process requirements for interim jurisdiction, I disagree.

[00:18:17] Speaker 02:
So that's where the line of thinking is going.

[00:18:19] Speaker 04:
I just wanted to make sure that you agreed that your client had actual notice and a full opportunity to be heard.

[00:18:27] Speaker 04:
So unless my colleagues have any further questions, we'll turn to the government.

[00:18:32] Speaker 01:
Thank you, Your Honor.

[00:18:34] Speaker 01:
Thank you.

[00:18:34] Speaker 01:
May it please the court, Daniel Zip, on behalf of the United States.

[00:18:37] Speaker 01:
Your Honor, the Supreme Court's decision in fold fundamentally altered this court's approach to the due process issues in this case.

[00:18:46] Speaker 01:
The court made it clear that the due process principles of the 14th Amendment are driven in part at least by interstate federalism concerns, and that it makes little sense to mechanically import those same limitations into the Fifth Amendment due process analysis.

[00:19:02] Speaker 01:
Therefore, the court identified a narrow class of cases where Congress has specifically provided for federal jurisdiction, where the distinction between the Fifth and Fourteenth Amendments matters.

[00:19:12] Speaker 01:
This is one of those cases.

[00:19:14] Speaker 01:
Congress specifically passed 1355 with the intention of making it easier to seize foreign assets and criminal proceeds from crimes committed in the United States, even if those were likely to be abroad.

[00:19:28] Speaker 01:
and even if the court did not have personal jurisdiction over the defendants.

[00:19:35] Speaker 00:
Can I ask you, Judge Bybee?

[00:19:39] Speaker 03:
No, go ahead, please.

[00:19:40] Speaker 00:
Thank you.

[00:19:42] Speaker 00:
I have a hypothetical I'd like to present to you and get your thoughts on.

[00:19:47] Speaker 00:
If there were a corporation in a foreign country that was manufacturing fentanyl, for example,

[00:19:56] Speaker 00:
The government decided that because of the transfer of that drug into the United States, into a particular jurisdiction, violated some sort of some law and in fact they charged that foreign corporation with drug trafficking.

[00:20:13] Speaker 00:
Could the government forfeit the manufacturing plant that's located in that foreign country under 1355?

[00:20:26] Speaker 01:
If, and you're hypothetical, if all the requirements of 1355 were met, in other words, if there were sort of acts or a mission giving rise to the forfeiture that occurred in the United States, and that, or the venue for the forfeiture was in the United States, yeah, under the plain language of the statute, it would apply to,

[00:20:55] Speaker 00:
So you would agree that without taking any steps to obtain any sort of control or constructive control or seize the physical plant, the United States government could file an action under 1355 and seek to forfeit the physical manufacturing plant of a corporation in a foreign country.

[00:21:20] Speaker 01:
I don't know that the analysis would be different than if there was funds that were, as long as it were the company or the manufacturing facility itself was based on what was involved in acts or emissions giving rise to forfeiture in the United States.

[00:21:40] Speaker 01:
I think there might be some difficulty managing that.

[00:21:42] Speaker 00:
If your answer, and I expected

[00:21:47] Speaker 00:
you to say that, because I think that's sort of on all fours with what we're talking about here.

[00:21:50] Speaker 00:
Are you asking us to adopt the theory that the Supreme Court declined to adopt in fold, and that is that the Fifth Amendment poses no territorial limits on personal jurisdiction at all?

[00:22:01] Speaker 01:
No, Your Honor.

[00:22:02] Speaker 01:
We're not asking for a sort of maximalist approach for the same reasons the Solicitor General did not in fold.

[00:22:09] Speaker 01:
What our position is that the specific statute in this case is similar to

[00:22:15] Speaker 01:
and that it is similarly narrow and that it applies only to a narrow category of claims, in this case, fine, penalty, or forfeiture, and not a myriad civil liability actions, that the jurisdiction-triggering predicates are narrow, and that it only applies when there's actual acts or omissions occurring in a district in the United States, and that it's tied to specific conduct that implicates foreign

[00:22:39] Speaker 01:
international relations.

[00:22:41] Speaker 01:
Again, this was a statute that was specifically passed to address the problem of criminal proceeds being taken out of the United States and stashed abroad.

[00:22:52] Speaker 03:
Council, I'd like you to turn to 1355b2.

[00:22:55] Speaker 03:
Let's read this together.

[00:22:58] Speaker 03:
Okay.

[00:23:00] Speaker 03:
So as you saw in my separate statement, I suggested that the history of this

[00:23:05] Speaker 03:
really had less to do with foreign proceedings than it did with Rule 4K of the Federal Rules of Civil Procedure, which usually obligates federal courts to abide by the rules of the states.

[00:23:18] Speaker 03:
That is that it requires them to observe the due process constraints that are in the 14th Amendment, because they only can exercise jurisdiction as broad as the state in which they sit.

[00:23:30] Speaker 03:
Okay, are you with me?

[00:23:33] Speaker 03:
And so this problem addresses

[00:23:35] Speaker 03:
a situation in which, for example, a plane has been seized in one state, but was connected to another state.

[00:23:44] Speaker 03:
And the United States has chosen to bring it in the first state, that is the state where the plane used to be located, but is no longer located.

[00:23:54] Speaker 03:
Under 4K, prior to this statute,

[00:23:58] Speaker 03:
that that that jurisdiction could not exercise in rem jurisdiction, because the plane was in a different district.

[00:24:06] Speaker 03:
This would close that gap and to say, No, the United States as a whole has in rem jurisdiction over the plane.

[00:24:14] Speaker 03:
And so the proceeding in one district is good, even though the plane is physically located in a different district.

[00:24:20] Speaker 03:
Okay, so that that this this this clearly closes that gap.

[00:24:24] Speaker 03:
Now with respect to the foreign country,

[00:24:28] Speaker 03:
This says property subject to forfeiture.

[00:24:33] Speaker 03:
That doesn't say the property that is located in a foreign country is subject to forfeiture.

[00:24:42] Speaker 03:
You've reversed the way it's been interpreted.

[00:24:44] Speaker 03:
It says property subject to forfeiture.

[00:24:47] Speaker 03:
That's the ordinary general law.

[00:24:49] Speaker 03:
That is property that in a foreign country that is now being possessed by the United States,

[00:24:54] Speaker 03:
that would be property seized on the high seas, would be located outside the United States, but under the ordinary maritime rules, now is physically occupied by the United States.

[00:25:03] Speaker 03:
It would also include property that might have been seized in the conflict, but is residing overseas.

[00:25:10] Speaker 03:
But you've read this to say, irrespective of whether the US has any connection to this property whatsoever, we can seize it.

[00:25:18] Speaker 03:
Why is that a good reading of B2?

[00:25:23] Speaker 03:
You moved the subject to forfeiture to later in the statement.

[00:25:29] Speaker 01:
Well, I guess my first response would be it wasn't us that had that reading.

[00:25:35] Speaker 01:
It was this court in 1.6 million.

[00:25:37] Speaker 03:
I'm asking you to help me read this now because you have adopted that as your own and you urged it on that court.

[00:25:46] Speaker 03:
That was your reading, I mean you the government generally, that's exactly the reading that you were just to take.

[00:25:53] Speaker 03:
Property subject to forfeiture there, doesn't that mean property subject to forfeiture under the ordinary rules of forfeiture?

[00:26:01] Speaker 03:
Why wouldn't that be under the ordinary rules of in rem jurisdiction?

[00:26:08] Speaker 03:
You've now said property, whenever property is located in a foreign country, it is subject to forfeiture.

[00:26:17] Speaker 01:
Right and that again and it's based on this court's specific holding that in-rem jurisdiction over property not within its actual or constructive control even when it lacks personal jurisdiction over the property owner is is proper.

[00:26:28] Speaker 03:
I'm not sure that we've added quite a bit of language to the statute.

[00:26:36] Speaker 01:
Well, I guess I don't have a specific response to your courts to the your honor's

[00:26:45] Speaker 01:
analysis of B2.

[00:26:47] Speaker 01:
Our reliance was on this court's case law interpreting the statute and we believe that the three-judge panel should be bound by that finding case law.

[00:27:03] Speaker 01:
So continuing with the fold framework in this case, on the first instance it fits within the narrow categories that do not exceed the Fifth Amendment due process restrictions.

[00:27:16] Speaker 01:
This also raises the same political questions that were at issue in fold.

[00:27:22] Speaker 01:
court warned not to cavalierly interfere with delicate judgments on matters of foreign affairs.

[00:27:27] Speaker 01:
This is a case where both the executive and Congress have spoken with one voice, and it's in fact arguably more implicative of those rights because the Congress in this case actually allowed for the executive to be seizing the property at issue, whereas in Fold it was providing the rights of private citizens to pursue the

[00:27:50] Speaker 04:
I guess also in your view, the reading that, for example, our court took of this statute was some 17 or 18 years ago, and Congress has not chosen to in any way change the statute in light of our reading or other courts' reading.

[00:28:16] Speaker 01:
That's correct, Your Honor.

[00:28:18] Speaker 01:
So we fundamentally believe that to answer Judge Desai's question earlier as whether we need to take 1.6 million and those cases on bank to reconsider our position is no because they were correctly decided.

[00:28:30] Speaker 01:
And that's even more clear after the court's decision in full, which let me ask you, let me ask you this council.

[00:28:38] Speaker 00:
Assuming for just a moment that I think we can decide the due process question without overruling 1.67 million, would you have the same view that we shouldn't reconsider 1.67 million anyway because it then at a minimum creates a tension between the sort of statutory question that was asked in 1.67 million versus the due process question that's presented here?

[00:29:05] Speaker 01:
If the court issues the same opinion that it did the first time, we moved for rehearing en banc based on that decision.

[00:29:12] Speaker 01:
So if it's something to the effect of importing the 14th Amendment due process concerns into the NREM jurisdiction analysis, which we believe is incorrect, then yes, that would create enough of a tension with the existing case law that it would likely be something that the en banc court would need to clear up.

[00:29:30] Speaker 01:
But again, it's our position that that

[00:29:33] Speaker 01:
holding from the original decision, which sort of used the 14th Amendment to find this control as notice requirement under due process, was founded on these 14th Amendment cases that dealt with the concerns over interstate comedy and federalism.

[00:29:50] Speaker 01:
Once you take those out, and as Fold made clear you should, and we're strictly talking about the Fifth Amendment due process rights,

[00:29:57] Speaker 01:
Then the framework from pooled provides the proper basis for this court to analyze out of fold.

[00:30:04] Speaker 03:
What constraints does the Fifth Amendment impose here.

[00:30:11] Speaker 01:
adopted the two basically.

[00:30:13] Speaker 01:
The first was the statute itself has to be sufficiently narrow across three metrics so that it is not extending the federal government's jurisdiction in violation of due process.

[00:30:27] Speaker 01:
That was the narrow category of claim, the triggering predicates,

[00:30:31] Speaker 01:
and conduct implicating international relations.

[00:30:35] Speaker 01:
Then the court declined to apply, but said if it did apply the reasonableness standard from Asahi, which balances the burden on the defendant versus the interests of the forum state and the plaintiff.

[00:30:52] Speaker 01:
It's our position that in this case, if the court did both of those, even the reasonableness test would not support finding a due process violation in this case.

[00:31:03] Speaker 01:
And that's because A, the burden on the defendant was not unfair in this case.

[00:31:08] Speaker 01:
He received actual notice.

[00:31:10] Speaker 01:
He retained a lawyer.

[00:31:11] Speaker 01:
He entered an appearance.

[00:31:12] Speaker 01:
and had notice and opportunity to be heard.

[00:31:17] Speaker 03:
Council, let me stop you there.

[00:31:19] Speaker 03:
If this were only about Nasri, I might well agree with you on that.

[00:31:24] Speaker 03:
But the problem is that you're proceeding in RAM.

[00:31:27] Speaker 03:
That's an action against the world.

[00:31:28] Speaker 03:
What about everybody who's not Nasri?

[00:31:32] Speaker 01:
Did you give them a notice?

[00:31:33] Speaker 01:
I think the problem is that it's his case here and he can't assert

[00:31:37] Speaker 03:
the interests of other parties, but you're asking but you're asking us to issue a judgment in REM that has particular characteristics to it.

[00:31:46] Speaker 03:
It's a declaration of title against the world.

[00:31:50] Speaker 03:
And so you have you've got you've got to satisfy the any whatever remaining shell of of you know, due process requirements are left after fold.

[00:32:00] Speaker 03:
I read the court as saying you've at least got to give them notice, which the statute in full easily did because it named the parties.

[00:32:08] Speaker 03:
That's not true of this statute and the reasonableness, whatever we're going to get out of Asahi, which was a 14th Amendment case.

[00:32:17] Speaker 03:
But if we're going to do that, you're asking us to give an in-rem judgment.

[00:32:21] Speaker 03:
How can we do that against the world and declare a U.S.

[00:32:24] Speaker 03:
title good?

[00:32:27] Speaker 01:
Two answers.

[00:32:28] Speaker 01:
One, the record shows that the United States did in fact provide notice under supplemental rule G and obviously Mr. Nasri received notice.

[00:32:39] Speaker 01:
And two, it's his burden if he's arguing that this is a violation of due process,

[00:32:44] Speaker 01:
he has to show that it was his due process that was violated.

[00:32:48] Speaker 01:
And any of the other claims that might come in, it's been I think seven years now and the funds are still frozen and no one's claimed them, but if there were someone else out there in the nether that wanted to claim those, their claims would be directly contrary to his.

[00:33:05] Speaker 01:
And under Elk Grove, the Supreme Court made clear that you can't assert

[00:33:10] Speaker 01:
due process or constitutional claims for other third parties if they're opposed to you.

[00:33:16] Speaker 03:
Did the district court look at the notice provided under supplemental rule G?

[00:33:22] Speaker 01:
No, the record is somewhat limited, but it makes clear that we did provide notice, published notice, and then provided... And where was it published?

[00:33:34] Speaker 01:
I don't believe that's in the record, but I think it would have been consistent with the rules and probably online, given the nature of the law.

[00:33:41] Speaker 03:
There's been no inquiry, no findings of fact by the district court.

[00:33:47] Speaker 01:
Because Mr. Nasri received actual notice and the law is clear that even if there were some defect in how we went about complying with Supplemental G, once a defendant receives actual notice... Well, then everybody else get actual notice.

[00:34:03] Speaker 03:
Again, this is an in rem proceeding.

[00:34:05] Speaker 03:
Counsel, you keep arguing this as though it's an impersonal proceeding.

[00:34:09] Speaker 03:
It's not.

[00:34:10] Speaker 04:
Council, I assume your argument remains the same as in your briefs that what we are dealing here is with Mr. Nasri's claims and Mr. Nasri does not have the right to assert claims for the rest of the world.

[00:34:30] Speaker 01:
That's correct, Your Honor.

[00:34:31] Speaker 01:
I think we were going in circles there, but that's our fundamental position is that this is his challenge to the statute and to the due process as applied to him.

[00:34:40] Speaker 01:
Um, and the idea that there might be someone else out there that had a claim contrary to his, um, does not provide a sufficient basis for a due process claim.

[00:34:49] Speaker 04:
Thank you, counsel.

[00:34:50] Speaker 04:
Do my colleagues have any further questions for counsel for the government?

[00:34:55] Speaker 04:
All right, Mr Williams.

[00:34:57] Speaker 04:
Thank you.

[00:34:57] Speaker 04:
We'll give you your two minutes.

[00:34:59] Speaker 02:
Thank you, your honor.

[00:35:01] Speaker 02:
I'd like to address a fold since that is the intervening Supreme Court decision prior to this court's argument fold either says nothing about what should happen in this case because it doesn't disrupt constructive the requirement

[00:35:19] Speaker 02:
cases, or it has quite a bit to say about what Congress must do in order to alter long-standing traditional jurisdictional requirements.

[00:35:30] Speaker 02:
If the first view carries the day, then this court's withdrawn opinion remains an accurate view of the constitutional due process requirements.

[00:35:39] Speaker 02:
And if Fo does alter the jurisdictional requirements, then it alters them in a particular way.

[00:35:45] Speaker 02:
It confirms that a clear command is what is required of Congress to alter long-standing jurisdiction requirements.

[00:35:54] Speaker 02:
There were seven votes in the infold for the idea that some due process limitations in order for personal jurisdiction to be altered.

[00:36:05] Speaker 02:
And a couple of them are, it must expressly state that the statute is conferring personal jurisdiction, as the PSJA VTA does.

[00:36:12] Speaker 02:
It ties federal jurisdiction to conduct closely related

[00:36:15] Speaker 02:
to the United States that implicates foreign policy concerns.

[00:36:18] Speaker 00:
Council, would it be enough?

[00:36:20] Speaker 00:
I mean, I take your argument to mean that there is still this backstop of the reasonableness inquiry that needs to occur.

[00:36:26] Speaker 00:
Are you drawing lines around what that should look like?

[00:36:32] Speaker 00:
What exactly would an opinion by this court say if we were to adopt the second argument that you're making, which is that it still fails under the reasonableness argument?

[00:36:43] Speaker 00:
What is the test?

[00:36:45] Speaker 00:
I think that if I if I if I don't read full to have put put forth a test.

[00:36:52] Speaker 02:
I agree with you on I think that what I'm trying to say and I apologize if I'm not being clear is that if full stands for the proposition that Congress may alter long standing personal jurisdiction requirements for in rim

[00:37:06] Speaker 02:
an impersonal case.

[00:37:08] Speaker 02:
But if it is standing for that proposition, then it says fairly clearly based on the specificity of the PSJBTA and a kind of an idea that you can go no further than this, at least yet, to be consistent with due process.

[00:37:21] Speaker 02:
The Supreme Court also hasn't set the outer boundaries for Fifth Amendment due process.

[00:37:26] Speaker 02:
It said PSJBTA is in, we're not sure what's out,

[00:37:30] Speaker 02:
But 1355B is not the PSJBTA.

[00:37:33] Speaker 02:
It is not nearly as clear.

[00:37:35] Speaker 02:
It is not nearly as specific.

[00:37:37] Speaker 02:
It does not provide nearly as clear a command.

[00:37:40] Speaker 02:
What I was going to say just in my last two seconds is that while there were seven votes for the idea that there's no maximalist view, there were nine votes for the idea that there's a clear command.

[00:37:52] Speaker 02:
In fact, Justice Thomas ends his concurrence by saying that Congress unmistakably overrode

[00:37:59] Speaker 02:
um what did the prior or international law rules that pre-existed the decision vote there's no unmistakable overriding in this case and with that we ask the court to reverse all right we thank council uh for their arguments the case just argued is submitted and with that we are adjourned for the day this court for this session stands adjourned