[00:00:00] Speaker 04: Okay, number 22-5243. [00:00:03] Speaker 04: Jacqueline, Brene, and Jai at balance versus United States Department of Education et al. [00:00:09] Speaker 04: Ms. [00:00:09] Speaker 04: Fine, amicus curiae at balance. [00:00:11] Speaker 04: Ms. [00:00:12] Speaker 04: Maciere, Freddie at police. [00:00:15] Speaker 00: Morning, counsel. [00:00:15] Speaker 00: Morning. [00:00:16] Speaker 00: Thank you, Chief Judge. [00:00:17] Speaker 00: May it please the court. [00:00:19] Speaker 00: I'm Thomas Burch appointed by the court as an Ancus on behalf of Ms. [00:00:22] Speaker 00: Jacqueline and Jai. [00:00:23] Speaker 00: I have three students who helped me prepare the case. [00:00:26] Speaker 00: Rob Wedge, Hope Garrison, and Allison Fine. [00:00:29] Speaker 00: Today, Ms. [00:00:29] Speaker 00: Fine will be handling the argument and I'll be sitting at council table. [00:00:32] Speaker 05: Thank you, Your Honors. [00:00:33] Speaker 05: Thank you. [00:00:46] Speaker 05: Good morning, Ms. [00:00:46] Speaker 05: Fine. [00:00:46] Speaker 05: Please proceed when you're ready. [00:00:50] Speaker 01: Thank you, Your Honors, and may it please the court. [00:00:52] Speaker 01: My name is Allison Fine, and I, alongside my co-counsel, Mr. Robert Wedge and Ms. [00:00:57] Speaker 01: Hope Garrison, have been appointed as amicus on behalf of the appellant, Ms. [00:01:02] Speaker 01: Najai. [00:01:03] Speaker 01: We were asked to address whether the government contacts exception to the DC long-arm statute is limited to First Amendment activities. [00:01:11] Speaker 01: This court should find the affirmative for three reasons. [00:01:14] Speaker 01: First, [00:01:15] Speaker 01: The text, scope, and history of the DC long arm statute support this interpretation. [00:01:20] Speaker 01: Since the DC Court of Appeals and Rose versus Silver, that court has repeatedly reaffirmed that the only principled justification for the exception is the First Amendment. [00:01:32] Speaker 01: And third, the DC Court of Appeals has recognized that other due process or policy concerns associated with the exception can be addressed through other means. [00:01:42] Speaker 01: The original government contacts exception did have both a due process and a First Amendment justification to it. [00:01:48] Speaker 01: But that's because it was derived from the DC service of process statute. [00:01:52] Speaker 01: And the exception at issue here comes from the DC long arm statute. [00:01:56] Speaker 01: And in environmental research versus Lockwood Green Engineers, the DC Court of Appeals recognized that the long arm statute still, there was still a government contacts exception under the long arm statute because that statute was designed to be similar in scope to those of [00:02:11] Speaker 01: Maryland or Virginia, whose state's long arm statutes can reach to the fullest extent that due process allows, meaning that the DC statute can also reach to the farthest extent that due process allows. [00:02:24] Speaker 01: And in footnote 11 of Lockwood, the court also noted that in enacting the long arm statute, Congress did not mean to eliminate the government contacts exception because doing so would impermissibly burden individuals ability to exercise their First Amendment rights to petition the government for a region of grievances. [00:02:42] Speaker 01: But it wasn't until Rose versus Silver two years later that the court had to, quote, come to grips with the question that the Lockwood court didn't have to answer. [00:02:51] Speaker 01: And that is, what is the justification for the exception? [00:02:53] Speaker 01: And in Rose, the court said, because the long-arm statute is co-extensive with due process, the only remaining justification for the exception is the First Amendment. [00:03:05] Speaker 02: So Ms. [00:03:05] Speaker 02: Fine, assume for the moment that I agree with everything you just said. [00:03:11] Speaker 02: Why? [00:03:11] Speaker 02: My question is whether we nevertheless should be certifying this question to the DC Court of Appeals. [00:03:19] Speaker 02: Because that court, in its most recent statement on this issue, said that this exact question is genuinely uncertain. [00:03:27] Speaker 02: We've sent conflicting messages. [00:03:29] Speaker 02: And this is the Browder case, which I know then doesn't resolve it. [00:03:33] Speaker 02: Wouldn't it be a bit odd for us to now say the DC law is clear? [00:03:38] Speaker 01: Yes, Your Honor, certification given the history on this issue might be proper, but it is not necessary here because although the Court of Appeals might have identified that there is some confusion, especially among the lower courts about how this applies, the DC Court of Appeals has been very consistent in how it applies. [00:03:55] Speaker 01: We can look at Rose, which was then followed by Lex Tex, where the court said that in Rose, it had in essence said the First Amendment is the only justification. [00:04:06] Speaker 01: in Campania versus applied industrial materials. [00:04:09] Speaker 01: In a certified question from this court, the DC Court of Appeals said that Rose and Lex tax had narrowed the scope of the exception. [00:04:17] Speaker 01: They cited Rose and Lex tax in that case. [00:04:20] Speaker 01: And then Campania carved out an exception to the government contacts principle based on fraud, because fraud is not protected under the First Amendment. [00:04:29] Speaker 01: So doing so would undermine the First Amendment principles of the exception. [00:04:35] Speaker 03: And the court, our court has sent it, not this exact issue, but our court has sent this complex of issues back to the DC courts a few times because we've also said that the scope of the context exception is unclear after the linear cases that you described. [00:04:55] Speaker 03: So has something happened in the interim since we did that that would cause us to do something differently now? [00:05:05] Speaker 01: The reason you don't need to certify is that when you look at the totality of the case law and how it has built on each other repeatedly over the years, with Lockwood identifying that the exception couldn't be eliminated under the long-arm statute because it would impede individuals' First Amendment rights, with Rose finding that the exception is rooted in First Amendment, with Lex Tex reiterating that, with Campania then finding the same. [00:05:31] Speaker 01: And even in the Browder case, Your Honor cited, [00:05:35] Speaker 01: The policy concerns associated with the exceptions, such as maybe DC becoming a national judicial forum, we don't need to be concerned about that. [00:05:44] Speaker 01: Because first, due process is a constitutional requirement. [00:05:48] Speaker 01: We don't need the exception to do that work. [00:05:50] Speaker 01: It's required in every case, not to mention the long arm statute reaches that scope. [00:05:56] Speaker 01: And then policies that exist already, like forum non-convenience or transfer, can resolve that. [00:06:03] Speaker 01: When you look at all of those cases together, Your Honor, that really answers the question. [00:06:08] Speaker 01: It shows that the justification to the exception, though there might have been language in prior cases that indicates, of course, there was uncertainty in how lower courts were applying it, that the overall principle has been very consistently applied throughout the years. [00:06:26] Speaker 02: So the primary question we've been talking about is whether this exception is just First Amendment activities. [00:06:33] Speaker 02: Do you think it's clear that the university's contacts with DOE here are not First Amendment activities? [00:06:42] Speaker 01: Yes, Your Honor. [00:06:43] Speaker 01: You could look to the case Beachford versus the trustees of the University of Columbia, where the DC Court of Appeals said that, in that case, the only business that Columbia was transacting in the district was soliciting federal grants [00:06:56] Speaker 01: obtaining federal loans and that was precisely what was happening here. [00:07:00] Speaker 01: Ms. [00:07:00] Speaker 01: Najai's underlying claims are central to the contact happening in the district and every harm that she has alleged, the nexus is the district. [00:07:10] Speaker 01: The universities are obtaining federal loans from the district that they are then handing out to students to further their business as a for-profit institution. [00:07:22] Speaker 01: Ms. [00:07:23] Speaker 01: Najai has alleged that [00:07:24] Speaker 01: the universities have fraudulently taken out loans in her name and then certified her to the Department of Education for collections through the Treasury offset program on those loans. [00:07:36] Speaker 01: So all of those central contacts are happening through DC and that Beach Board case identifies that that falls under the transacting business aspect of the long arm statute. [00:07:45] Speaker 01: And that would not be First Amendment activity because in Lex tax footnote nine, the court noted that [00:07:54] Speaker 01: uh, First Amendment activities were at a minimum petitioning for a redress of grievances. [00:07:58] Speaker 02: And if we were to ask what allegations satisfy the relatedness aspect of the due process inquiry, I assume your answer would basically be the same list of things you just said. [00:08:11] Speaker 01: Yes, your honor. [00:08:13] Speaker 01: And if I may reserve the remainder of my time for rebuttal, unless you have remaining [00:08:17] Speaker 03: I have one question. [00:08:18] Speaker 03: We will give you time for rebuttal. [00:08:20] Speaker 03: So do you understand there to be any dispute among the parties on whether the activities that are relevant are First Amendment activities? [00:08:30] Speaker 01: I would expect that opposing counsel may argue that this is First Amendment activities are honored because there are some district court opinions that might suggest that. [00:08:39] Speaker 01: However, [00:08:40] Speaker 01: that Beachport case that I mentioned says the opposite and is a DC Court of Appeals decision. [00:08:45] Speaker 03: But do you understand there to be any dispute in the briefing before us on the issue? [00:08:50] Speaker 06: Yes, Your Honor. [00:08:51] Speaker 03: You do? [00:08:52] Speaker 03: You think there is? [00:08:55] Speaker 03: I didn't see it. [00:08:56] Speaker 03: But we can ask the other side about that. [00:08:58] Speaker 03: But I was just wondering about your impression. [00:09:00] Speaker 01: Sorry. [00:09:00] Speaker 01: Are you asking if there's dispute among the parties whether this is First Amendment activity? [00:09:05] Speaker 03: Yeah, with respect to the way that it's been presented to us for purposes. [00:09:09] Speaker 01: No, sorry, Your Honor. [00:09:10] Speaker 03: Okay. [00:09:11] Speaker 03: All right. [00:09:11] Speaker 03: Thank you. [00:09:12] Speaker 03: We'll give you some time for, let me make sure my colleagues don't have additional. [00:09:16] Speaker 03: Okay. [00:09:16] Speaker 03: Thank you. [00:09:17] Speaker 03: We'll give you some time for rebuttal. [00:09:18] Speaker 05: Thank you. [00:09:28] Speaker 05: Ms. [00:09:28] Speaker 05: Sarah, please proceed when you're ready. [00:09:45] Speaker 05: Good morning, Your Honors. [00:09:46] Speaker 08: May it please the court? [00:09:47] Speaker 08: My name is Deborah Messier, and I represent the defendant at Pellee New York University and Long Island University. [00:09:55] Speaker 08: Your Honors, you've asked for briefing on the question of whether the government contacts exception applies to personal jurisdiction under existing District of Columbia law and whether it's limited to activities protected by the First Amendment. [00:10:10] Speaker 08: And the answer, Your Honors, respectfully, is clearly no. [00:10:13] Speaker 08: under the district's controlling precedent of Lockwood. [00:10:17] Speaker 08: Lockwood was en banc, and under DC law, a panel cannot issue an opinion that conflicts with en banc decisions. [00:10:28] Speaker 08: And here I'm thinking of the case MAP, which was cited to by esteemed counsel in the amicus brief. [00:10:38] Speaker 08: And I'm thinking of the opinion by Justice Gallagher [00:10:41] Speaker 08: in which he talked about why in Rose they did not take up the case on Bonk. [00:10:49] Speaker 08: Your honors, if I may respectfully offer a clarification of the language in our brief, we apologize. [00:10:55] Speaker 08: We confusingly refer to Lockwood as the controlling precedent of this court. [00:11:01] Speaker 08: Of course, it is the controlling precedent of the District of Columbia's Court of Appeals. [00:11:06] Speaker 08: We should have been more precise in our language. [00:11:10] Speaker 08: Turning back to the argument, Lockwood is premised on the sound public policy that there is a need for unfettered access to federal departments and agencies by our national citizenry without the chilling effect of having to defend themselves in court in the District of Columbia. [00:11:32] Speaker 08: The District of Columbia is a very unique, if you will, it has a unique character. [00:11:39] Speaker 08: Before the 1970s, there was municipal codes relating to the District of Columbia's court system that were then amended. [00:11:51] Speaker 08: Liquid is important. [00:11:52] Speaker 08: It was issued in 1976 to prevent the district from becoming a national judicial forum with jurisdiction over non-residents whose contact with the district was merely interacting with federal agencies and [00:12:09] Speaker 08: federal instrumentalities. [00:12:12] Speaker 08: Your honors, respectfully, in this case, for example, millions of Americans have student loans, old student loans, and are we now to say that those individuals could come into DC, into the District of Columbia, and litigate whether or not they were properly paid or not? [00:12:32] Speaker 08: Not only would it clog the system, it offends basic principles of minimum contacts that [00:12:39] Speaker 08: our court system is built upon. [00:12:43] Speaker 07: So is your view then that where this court has expressed concern about the reach of the exception, the government contact exception, either the factual or procedural circumstances have been so distinguishable from both [00:13:09] Speaker 07: the D. C. Court of Appeals in bank decision and what it was dealing with there. [00:13:16] Speaker 07: And this case. [00:13:20] Speaker 08: Your honor. [00:13:22] Speaker 08: Thank you for the question. [00:13:23] Speaker 08: We do not feel that this case the case at bar is distinguishable in terms of the principles of jurisdiction from the Lockwood case. [00:13:34] Speaker 08: And really, we believe that the D. C. [00:13:38] Speaker 08: Court of Appeals should be the ones to, if you will, change their views on how extensive their jurisdiction should be. [00:13:52] Speaker 08: And they've been en banc, they've had the opportunity to revise it with Rose and the other cases cited to by Amicus, and they've not taken up the opportunity. [00:14:03] Speaker 08: In the Rose case, Justice Gallagher on the DC Court of Appeals said clearly- Actually, he's only a judge. [00:14:12] Speaker 08: Oh, judge. [00:14:13] Speaker 08: I'm sorry, judge. [00:14:14] Speaker 08: Judge Gallagher said that he said that it's very clear that a hearing panel cannot overturn or cabin, to use the phrase of amicus, [00:14:33] Speaker 08: an en banc decision of the D.C. [00:14:36] Speaker 08: Court of Appeals. [00:14:37] Speaker 08: He made that very, very clear. [00:14:38] Speaker 08: And he said that was the reason why he didn't feel the need to have rehearing en banc on Rose. [00:14:45] Speaker 08: And then, of course, he had decisions by other judges who said that we think there should be rehearing because this decision may seem to conflict with Lockwood. [00:14:56] Speaker 08: And they again reiterated the very sound public policy objectives of Lockwood. [00:15:01] Speaker 03: I ask for a rose. [00:15:05] Speaker 03: If if we thought that rose cabin the scope of the exception to first amendment activity, just that I know you would resist it, but just assume that for present purposes. [00:15:14] Speaker 08: Yes, sir. [00:15:15] Speaker 03: And I didn't see anywhere in your brief where you argued that the context exception would still apply because the activity to issue here is first amendment active. [00:15:25] Speaker 08: Your honor, your honor, if we got to that point, I think we would argue that from our perspective, we were at such an initial phase in this case. [00:15:36] Speaker 08: You know, I had a motion to dismiss before Judge Friedrich in the district court. [00:15:40] Speaker 08: There's been no fact development here. [00:15:43] Speaker 08: The facts are are, you know, to be determined, if you will. [00:15:47] Speaker 08: We're right at that initial phase of jurisdiction to respectfully for us. [00:15:51] Speaker 08: When we looked at Lockwood, it was so clear that [00:15:55] Speaker 08: there's no question that the jurisdiction doesn't fall here. [00:16:00] Speaker 08: But certainly, if you thought that, we would respectfully request the ability to brief that in supplement too, if you would allow that. [00:16:11] Speaker 03: And what's wrong with certifying? [00:16:14] Speaker 08: Certifying to the District of Columbia Court of Appeals. [00:16:17] Speaker 08: Certainly, that is an avenue, Your Honor. [00:16:19] Speaker 08: I don't think a dispute, I don't think that there is such confusion [00:16:26] Speaker 08: that it should be certified. [00:16:27] Speaker 08: I think that Judge Gallagher and the other judges in the Rose decision made it extremely clear that Lockwood still controls. [00:16:37] Speaker 08: And I think that if there was a decision perhaps by a court that came out right and said Lockwood is bad, you know, the reasoning behind it is bad and directly challenged it, then there might be something there. [00:16:54] Speaker 08: But as the DC Court of Appeals has said, a panel decision simply can't go there. [00:16:58] Speaker 08: They've had the opportunity, respectfully, Your Honor. [00:17:00] Speaker 02: So what about, do you have a response to the LexTex case? [00:17:03] Speaker 02: Because my read of that was that it explicitly applies this exception as limited to First Amendment activities and applies it in that fashion. [00:17:11] Speaker 08: Yes, Your Honor. [00:17:12] Speaker 08: I understand the language of LexTex and some of the other cases cited, too, by Amicus. [00:17:17] Speaker 08: Again, I have to go back, and I don't want to be too repetitive. [00:17:21] Speaker 08: I have to go back to that Rose decision [00:17:23] Speaker 08: with the denial of rehearing. [00:17:26] Speaker 08: And they said explicitly, it's the law of our District of Columbia court that a panel cannot overturn or modify or change a decision of a rehearing of a court sitting en banc. [00:17:42] Speaker 08: And the solution to that is to go back en banc. [00:17:46] Speaker 08: I don't know how it would work if this court were to say the District of Columbia should sit en banc on it. [00:17:52] Speaker 08: I think that's probably for them to decide. [00:17:55] Speaker 07: Well, what my question was trying to get at is, given the longstanding view of the DC Court of Appeals and its opportunities, is there something about this case that might cause that court to decide to sit in bank, either [00:18:22] Speaker 07: ab initio or after a further statement by a three-judge panel. [00:18:32] Speaker 07: And the DC Court of Appeals doesn't sit and bank that often, at least historically. [00:18:42] Speaker 07: And so what is it about this case that gets over the hump? [00:18:48] Speaker 07: And of course, judges change. [00:18:51] Speaker 07: And maybe that court would leap at the opportunity to reconsider. [00:19:02] Speaker 07: But the arguments that are presented here, at least so far, leave me some doubt. [00:19:09] Speaker 07: And now that you raised the point about the factual development here, has yet to occur. [00:19:19] Speaker 07: What do you think would happen more than matter to get to the DC Court of Appeals, regardless of whether it went to a three-judge panel or an ab initio in bank proceeding? [00:19:38] Speaker 08: Your Honor, of course, any decision by this court would be entitled to great deference and respect by the DC Court of Appeals, I would think. [00:19:47] Speaker 07: What I'm trying to focus on, and I may be not clear, is who's going to develop the facts? [00:19:55] Speaker 07: In other words, is there something about this case absent factual development that would make it a good subject for referral? [00:20:12] Speaker 07: But if I'm on the DC Court of Appeals and I get this case and I have no facts, [00:20:18] Speaker 07: that have been found, and certainly on a motion to dismiss at this point, I can take allegations as true. [00:20:28] Speaker 05: But that's a lot of work for that court to do, where it's dealing with allegations only. [00:20:46] Speaker 07: I'm just raising questions. [00:20:47] Speaker 07: I'm not suggesting where I come out, but there are concerns that I had in considering some of the arguments. [00:20:57] Speaker 08: Yes, Your Honor. [00:20:58] Speaker 08: Your Honors, may I be able to respond? [00:21:00] Speaker 08: I think my time has expired. [00:21:02] Speaker 08: Your Honor, I agree. [00:21:06] Speaker 08: The facts as we know it in this case that are undisputed are that, well, again, there's been no fact development. [00:21:16] Speaker 08: plaintiff appellant alleges that she attended college in the state of New York in the village of Brookhaven and Manhattan in the period of time from, I believe, 1986 to 1989. [00:21:29] Speaker 08: Presumably, she was a resident of the state of New York at that time. [00:21:35] Speaker 08: When the plaintiff appellant filed a suit, she was a resident of Pennsylvania. [00:21:40] Speaker 08: I believe now she may be a resident of Maryland. [00:21:45] Speaker 08: The way the student loan program works is that there's a program, it is administered by a federal agency that happens to have a portion of its workforce situated in the District of Columbia. [00:21:58] Speaker 08: But the Department of Education doesn't itself give out federal dollars. [00:22:03] Speaker 08: It simply administers a program and the dollars are given out by third party private lenders. [00:22:09] Speaker 08: They are given out according to terms agreed to and developed by the Department of Education pursuant to various federal statutes. [00:22:20] Speaker 08: Those monies are then given out by these third party banks, if you will. [00:22:28] Speaker 08: And they are then given to the students to attend the colleges. [00:22:31] Speaker 08: What I see in this case is the Department of Education, you know, they're out of the case. [00:22:38] Speaker 08: The two universities are here. [00:22:40] Speaker 08: There's simply not the minimum contacts here. [00:22:45] Speaker 08: You know, respectfully, the plaintiff went to school in New York. [00:22:50] Speaker 08: Schools are in New York. [00:22:51] Speaker 08: It's quite unfair to ask entities that do nothing more than accept dollars from a third party bank operating within the parameters of a federal loan program [00:23:06] Speaker 08: to then defend themselves in court in the District of Columbia. [00:23:13] Speaker 08: And the universities are not the ones who actually hired the credit agencies to go after, for lack of a better word, the plaintiff appellant. [00:23:26] Speaker 08: That would have been done through the Department of Education. [00:23:29] Speaker 08: So my clients were kind of put in that position, which I believe you would find a lot of entities of [00:23:36] Speaker 08: They have a very distant and touching relationship with the district because of the use of that federal program. [00:23:46] Speaker 08: And now all of a sudden they have to defend themselves in the District of Columbia. [00:23:51] Speaker 08: And it's not just student loans, respectfully, Your Honors, it would be, you know, think of all the different federal programs we have, we have social security, we have Medicare, we have Medicaid dollars are sent to the states, but they come from the federal government. [00:24:03] Speaker 08: That's just touches on [00:24:05] Speaker 08: on some of the ways that people, entities and people who have nothing to do with the district could be drawn in. [00:24:13] Speaker 08: I don't know if the District of Columbia wants to clog its courts. [00:24:17] Speaker 08: I think this would be a case, even if the facts were developed, where the District of Columbia probably would reaffirm their holding in Lockwood and say this is certainly not a case where we want to think about opening up our jurisdiction. [00:24:32] Speaker 08: Respectfully, honors, if I may have one minute to conclude, unless there are other questions from the panel. [00:24:36] Speaker 03: Make sure there's no further questions. [00:24:37] Speaker 03: You can give a brief concluding statement. [00:24:40] Speaker 08: Oh, thank you very much. [00:24:43] Speaker 08: Your honors, I've touched on a few of these things. [00:24:45] Speaker 08: I just wanted to talk a little bit about amicus's contention that a large docket in the District of Columbia or a clogged docket that might result from an expansion of jurisdiction could be dealt with [00:25:01] Speaker 08: through transfer or forms non-convenience. [00:25:05] Speaker 08: Respectfully, jurisdiction is mandatory. [00:25:09] Speaker 08: That gets rid of the case right off the bat. [00:25:12] Speaker 08: Form non-convenience can require a hearing. [00:25:16] Speaker 08: It's permissive. [00:25:18] Speaker 08: And it would require people being brought in the district to hire counsel in the district. [00:25:24] Speaker 08: I'm actually arguing this case on behalf of my firm because I'm the only one admitted in the District of Columbia. [00:25:29] Speaker 08: in your court in the D.C. [00:25:30] Speaker 08: Circuit Court of Appeals. [00:25:32] Speaker 08: And so you would have to hire counsel here. [00:25:35] Speaker 08: It's extraordinarily expensive and time consuming. [00:25:39] Speaker 03: And I think we've got I think we've got the relationship between MEFN's nonconvenience and jurisdiction. [00:25:44] Speaker 03: Yes. [00:25:45] Speaker 03: Let me make sure my colleagues don't have additional questions for you at this time. [00:25:49] Speaker 03: And if there's not, we'll take your argument under submission. [00:25:52] Speaker 03: We appreciate it. [00:25:53] Speaker 08: Thank you very much, Your Honor. [00:25:54] Speaker 08: Thank you for allowing us to present our arguments. [00:25:56] Speaker 08: And if I may be allowed to [00:25:57] Speaker 08: also congratulate the law students who've done an amazing job. [00:26:01] Speaker 03: Thank you. [00:26:01] Speaker 03: Thank you. [00:26:03] Speaker 03: It's fine. [00:26:04] Speaker 03: We'll give you the three minutes you asked for for rebuttal. [00:26:08] Speaker 06: Thank you, Your Honors. [00:26:12] Speaker 01: Your Honors, the DC Court of Appeals has recognized that these policy concerns have already been handled by the exception because due process requires that an order [00:26:24] Speaker 01: And under the long-arm statute, in order to bring a claim in the district, it still has to arise from transacting business in the district. [00:26:32] Speaker 01: So Appley's argument that this would subject basically every university or anyone accepting federal funds of any type to bringing claims in DC or suit in DC is misplaced because those arguments or those claims still have to arise from transacting business. [00:26:49] Speaker 01: It can't just be [00:26:51] Speaker 01: that you received federal money and that was it. [00:26:53] Speaker 01: Here, Ms. [00:26:53] Speaker 01: Najai's claims directly relate to the business that the universities are transacting in the business. [00:26:59] Speaker 01: Her underlying claims directly pertain to the district. [00:27:02] Speaker 01: It's not like some of the district court cases, such as Stevens or Morgan's, that APOLI cite in their brief where the actual underlying claims occurred outside of the district. [00:27:13] Speaker 01: Additionally, Lockwood and Rose are not inconsistent with one another. [00:27:17] Speaker 01: Both cases can still stand true today. [00:27:20] Speaker 01: They addressed different questions. [00:27:23] Speaker 01: In Lockwood, the DC Court of Appeals identified that the government contacts exception still exists under the long arm statute. [00:27:31] Speaker 01: In Rose, the court said it had to quote, come to grips with the question Lockwood didn't have to address, meaning what is the justification for the exception? [00:27:40] Speaker 01: Additionally, a Lockwood case was the jurisdiction there was improper because it violated due process. [00:27:47] Speaker 01: And the only two contacts in DC in that case were direct First Amendment government contacts in the district. [00:27:55] Speaker 01: So we can't look at Lockwood as saying it said the exception was based on due process, or it said the exception was based on the First Amendment, or even both. [00:28:03] Speaker 01: Because that court was limited to looking at the facts that it had before it. [00:28:07] Speaker 01: And the facts it had before it was that there were direct First Amendment government contacts. [00:28:12] Speaker 01: Additionally, the denial of rehearing en banc really cuts in favor of [00:28:17] Speaker 01: of the position that the two cases aren't inconsistent, Your Honors, because as noted in the concurring opinion, the cases, if they were inconsistent, the judges would have to rehear them. [00:28:28] Speaker 01: And the Rose Court specifically stated in the first paragraph of its opinion, Rose and Lockwood are materially different cases. [00:28:37] Speaker 01: So they don't conflict with one another, which was also reiterated in that decision. [00:28:41] Speaker 01: And lastly, just on the note of the First Amendment scope here, [00:28:46] Speaker 01: The First Amendment protections associated with DC are at a minimum, as the court in Lex text noted in footnote nine, to allow individuals to petition the government for a redress of grievances. [00:28:58] Speaker 01: It indicated that maybe that's broader, but that's really all that the government context exception exists to allow individuals to do. [00:29:08] Speaker 01: And for these reasons, we respectfully ask that this court find that the government context exception is grounded in First Amendment principles. [00:29:15] Speaker 01: Thank you. [00:29:16] Speaker 03: Thank you, Miss Fine. [00:29:17] Speaker 03: Thank you to both of you. [00:29:19] Speaker 03: We'll take this case under submission. [00:29:21] Speaker 03: Miss Fine, you and your team are appointed by the court to support the appellant in this matter. [00:29:25] Speaker 03: We thank you for your able assistance.