[00:00:00] Speaker 03:
case is 192382, Sharifi versus United States.

[00:00:05] Speaker 03:
It is an appeal from a decision from the Court of Federal Claims.

[00:00:10] Speaker 03:
Now, Ms.

[00:00:11] Speaker 03:
Gaines, you may begin.

[00:00:13] Speaker 03:
I'm sorry.

[00:00:14] Speaker 03:
Good morning, Your Honor.

[00:00:16] Speaker 04:
May it please the Court?

[00:00:18] Speaker 04:
Appellant... Appellant contends that the lower court errs in dismissing the plaintiff's complaint.

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Although the court in its opinion accurately stated the standard of review.

[00:00:38] Speaker 02:
Ms.

[00:00:38] Speaker 02:
Gaines.

[00:00:39] Speaker 04:
Yes.

[00:00:40] Speaker 02:
This is Judge Wallach.

[00:00:41] Speaker 02:
I have a number of questions for you.

[00:00:43] Speaker 04:
Yes, Your Honor.

[00:00:45] Speaker 02:
How does the existence of a status of forces agreement between the United States and Afghanistan affect the lower court's determination?

[00:00:56] Speaker 04:
Well, that

[00:01:00] Speaker 04:
issue was decided in the favor of the plaintiff because the lower court indicated that it does not affect the proceeding of the plaintiff's complaint in this situation.

[00:01:19] Speaker 02:
So because the lower court decided it, we don't look at it?

[00:01:25] Speaker 04:
Well, that issue wasn't raised by the defendant.

[00:01:30] Speaker 04:
But I'm not saying that you can't look at it.

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What does the SOFA provide about the government of Afghanistan providing land for bases?

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That's one of the legal issues involved here, because the land

[00:02:00] Speaker 04:
was still privately owned that the combat outpost millet was built on.

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On page 15 of the appendix, the Court of Federal Claims said the government has offered nothing suggesting how international law and international justice are implicated by the court ruling on a takings claim against the United States.

[00:02:29] Speaker 02:
by a United States citizen, albeit on foreign soil.

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Suppose the claim involved the death of a U.S.

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citizen fighting for Al Qaeda, for fighting for the Taliban on foreign soil.

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Would his estate have a claim against the United States?

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In that situation, I would say no, because

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the person who voluntarily decided to fight for Al Qaeda.

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I'm talking about the underlying law.

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Do you have any thoughts on that?

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Well, I would say that once they

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There would be certain legal implications in them deciding to fight for Al-Qaeda and they could not bring an action against the United States legally.

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Okay.

[00:03:47] Speaker 02:
Okay.

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Counsel.

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Ask you this.

[00:03:51] Speaker 03:
I'm sorry.

[00:03:52] Speaker 03:
Go ahead Judge Wallach.

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On page 23 of the red break.

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The government asserts that due to the threat of IEDs and an ongoing Taliban threat in the area, the U.S.

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Army destroyed buildings containing bomb-making materials on the real property and then built outpost mill it on that property.

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Do you dispute those facts?

[00:04:27] Speaker 04:
Yes.

[00:04:27] Speaker 04:
In certain respects, because the plaintiff maintained that, yes, there were buildings on his property.

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The buildings were not the ones shown by the defendant in its exhibit.

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Counsel, can I shift gears for a minute?

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I understand that as I see it, you make a couple arguments.

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One is that it was inappropriate for the court to rule at the motion to dismiss stage on Mr. Schriefe's ownership interest because there were too many factual disputes.

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But more pointedly, I think you're contending that the court's view of

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Afghan law is incorrect and that there are other ways to establish ownership, is that right?

[00:05:35] Speaker 04:
Uh, somewhat, yes.

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Yes, because certain of the requirements that the lower court indicated were actually enacted in 2008 and the plaintiff entered into an inheritance agreement

[00:05:55] Speaker 04:
with his siblings, all of whom were heirs in 2004.

[00:06:01] Speaker 03:
Any of the requirements, any of the requirements that were listed by the Court of Federal Claims, is he able to establish that he satisfies any of them?

[00:06:15] Speaker 04:
Yes.

[00:06:19] Speaker 03:
Okay.

[00:06:20] Speaker 03:
So which document

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Which piece of evidence did he allege he could submit in support of his claim?

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I understand he argues that there are other ways to establish ownership that fall outside the bounds of the law, but with respect to what the Court of Claims spelled out as to what the law requires, did he allege that he could establish any one of those?

[00:06:54] Speaker 04:
Well, eventually, the inheritance agreement was registered, although it was after the statute had been enacted.

[00:07:09] Speaker 04:
But at the time that the inheritance agreement was executed in 2004, that requirement was not there.

[00:07:30] Speaker 03:
There's a list of things that the Court of Federal Claims said had to be established.

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There are different ways to establish ownership under Afghan law.

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And the court gave a list of them, seven types of documents.

[00:07:48] Speaker 03:
Yes.

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All right.

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And which one of those seven did Mr. Sharifi plead he could provide?

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Well... All right.

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Documents of a legal court.

[00:08:08] Speaker 03:
Um... I mean, there's seven different things.

[00:08:14] Speaker 04:
Yes.

[00:08:15] Speaker 04:
You see, our position... Well... I guess number six.

[00:08:28] Speaker 03:
registered title documents?

[00:08:31] Speaker 04:
Yes, because they also attached a diagram of the plot to the inheritance agreement.

[00:08:43] Speaker 03:
So you're saying that those constitute title documents?

[00:08:47] Speaker 03:
Yes.

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And that they were registered?

[00:08:53] Speaker 04:
Yes.

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Not in 2004.

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when they were executed because there was no requirement.

[00:09:03] Speaker 02:
This is Judge Wallach.

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On page 24 of the Red Brief, the government asserts that you did not contest the determination made by the government's expert concerning Afghan law.

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Do you have any evidence in the record to contest the validity of that declaration about Afghan law?

[00:09:22] Speaker 04:
I certainly did because I offered

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And I cited in my brief, I offered the rule of law in Afghanistan as an exhaustive study provided by the United States

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agency, and they did an exhaustive study of the rule of law over the entire country.

[00:10:11] Speaker 04:
And they recognized, as the lower court recognized, that informal... Liz, go ahead.

[00:10:24] Speaker 03:
You can finish the answer.

[00:10:25] Speaker 04:
Yeah, I have to understand what was the law project.

[00:10:28] Speaker 04:
by the USAID, well, the Agency of International Development did an exhaustive study and they recognized that because of the crisis in which Afghanistan had been in for years, following, including the occupancy by Russia,

[00:10:58] Speaker 04:
the occupancy by the Taliban that the people use the customary informal procedures rather than try to access things where there was no... What year was that?

[00:11:15] Speaker 04:
...hended infrastructure.

[00:11:17] Speaker 02:
So what year was that AID study done?

[00:11:20] Speaker 04:
2005.

[00:11:23] Speaker 04:
Right.

[00:11:25] Speaker 02:
Which is, say, 15 years ago.

[00:11:28] Speaker 02:
Do you agree that Afghanistan has three overlapping types of law, civil law, Sharia law, and customary law?

[00:11:40] Speaker 00:
Yes.

[00:11:41] Speaker 02:
Do you agree that what the expert from the government laid out was the civil law analysis of the transfer of land?

[00:11:53] Speaker 04:
Yes.

[00:11:57] Speaker 02:
He did not recognize... Excuse me.

[00:12:00] Speaker 02:
Do you have any reason to doubt that the civil law governing Afghanistan's transfer of land is applicable in that province?

[00:12:16] Speaker 04:
Currently, yes, but not as... Currently, yes, you have reason to doubt?

[00:12:23] Speaker 04:
No.

[00:12:24] Speaker 04:
Currently, I agree.

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It does apply now, currently, to that region.

[00:12:36] Speaker 02:
And when did it begin to apply?

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Do you know?

[00:12:38] Speaker 04:
Well, I know some of the statutes were not enacted until 2008.

[00:12:50] Speaker 02:
Correct.

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And we're talking about 2010.

[00:12:57] Speaker 04:
But at the time, the inheritance agreement was entered into was 2004, when the plaintiff entered into the inheritance agreement with his siblings, the other heirs.

[00:13:14] Speaker 03:
Does that answer your question, Judge Wellick?

[00:13:25] Speaker 02:
Uh-huh.

[00:13:25] Speaker 02:
As much as it's going to, yes, thank you.

[00:13:27] Speaker 03:
Okay.

[00:13:28] Speaker 03:
All right.

[00:13:29] Speaker 03:
Ms.

[00:13:29] Speaker 03:
Gaines, we'll save the remainder of your time for rebuttal.

[00:13:39] Speaker 03:
Okay.

[00:13:40] Speaker 03:
Mr. Smeltzer?

[00:13:42] Speaker 01:
Good morning, Your Honors.

[00:13:44] Speaker 01:
May it please the Court, this is John Smeltzer for the United States.

[00:13:48] Speaker 01:
Your Honors, we submit that the Court of Federal Claims judgment should be affirmed for two sets of reasons.

[00:13:54] Speaker 01:
First, as the Court of Federal Claims found

[00:13:56] Speaker 01:
Mr. Schreife did not proper sufficient competent evidence to establish his ownership under... Court.

[00:14:04] Speaker 01:
Mr. Schmelzer.

[00:14:05] Speaker 01:
Yes, Judge Walden.

[00:14:07] Speaker 02:
Please don't talk when I talk.

[00:14:09] Speaker 02:
Or any judge talks, okay?

[00:14:11] Speaker 02:
I know this is difficult because of the phone, but please listen.

[00:14:17] Speaker 02:
Let me ask you a couple of questions.

[00:14:19] Speaker 02:
One is how the existence of a SOFA, a Status Forces Agreement,

[00:14:25] Speaker 02:
affects the lower court's determination?

[00:14:29] Speaker 01:
Your Honor, we did not brief specifically the status of forces agreement, and I cannot answer whether there are any particular provisions in that agreement impact the court's determination.

[00:14:42] Speaker 01:
What I can say, though, is that the

[00:14:45] Speaker 01:
The United States presence in Afghanistan, the Army's presence was pursuant to a UN Security Council resolution.

[00:14:53] Speaker 01:
We were there as part of an international security assistance force and with the consent.

[00:14:59] Speaker 02:
Question.

[00:15:00] Speaker 02:
There is an ISAF sofa as well, is there not?

[00:15:05] Speaker 01:
I'm not sure, Your Honor.

[00:15:08] Speaker 01:
We did not brief that.

[00:15:11] Speaker 02:
Okay.

[00:15:11] Speaker 02:
Here's my other question.

[00:15:12] Speaker 02:
You want us to affirm.

[00:15:14] Speaker 02:
But I find extraordinarily problematic that the court below's findings relating to the question of whether the government could be held liable for an extraterritorial taking of private property under these circumstances that is in a combat zone.

[00:15:37] Speaker 01:
I want you to agree, Judge Wallach.

[00:15:39] Speaker 01:
We don't think that the plaintiff stated a claim for relief because of that reason, and as we stated in the brief, that this was a combat outpost and the Army was there at a time when they were fighting a counterinsurgency by the Taliban and under the enemy property doctrine.

[00:15:59] Speaker 01:
Right, right.

[00:16:01] Speaker 02:
So you don't want us to affirm on that, do you?

[00:16:04] Speaker 01:
I would be happy for you to affirm on that, Your Honor.

[00:16:07] Speaker 01:
As I was saying at the opening, you can affirm on the grounds that the Court of Federal Claims found that the plaintiff did not assert enough evidence to show property right under Afghan law, but we would prefer that the court did not leave it open that there is a takings claim in this circumstance, because for the reasons that

[00:16:28] Speaker 03:
You know, but didn't the court just say it was too early in the proceedings to make a determination because it turns on what factually was occurring and that there are certain pieces of evidence that the government tried to submit that aren't appropriate at the motion to dismiss stage?

[00:16:45] Speaker 01:
Well, I don't think the court referenced any specific evidence.

[00:16:50] Speaker 01:
The court did suggest that it was inappropriate at this time because of the

[00:16:57] Speaker 01:
What the court was applying was the substantial indirect involvement test from some of the cases of this court and said that they're potentially under that standard, the United States could be found liable.

[00:17:11] Speaker 01:
We think that's in error, that that's not the right analysis to apply here.

[00:17:17] Speaker 01:
First, because

[00:17:19] Speaker 01:
the enemy property doctrine applies.

[00:17:21] Speaker 01:
But secondly, even if it doesn't, that the circumstances here are on all fours with the court's determination and standard vacuum, where even in a post-hostilities, post-surrender context, where you had allied forces occupying property under an agreement that Japan was to provide

[00:17:48] Speaker 01:
uh... what did the forces needed that that's not a situation where taking can be found because any taking that context is taking uh... by you know under the sovereignty of the the territorial sovereign uh... there in that case japan in this case uh... we would submit that any you know even if it did the enemy property doctrine did not apply uh... that uh... any taking would be uh...

[00:18:12] Speaker 01:
by Afghanistan to provide what's necessary for the United States Army to assist the... Did you present this precise argument to the Court of Federal Claims?

[00:18:22] Speaker 01:
Under standard vacuum, yes we did.

[00:18:24] Speaker 01:
The argument we did not fully brief below was the enemy property doctrine.

[00:18:31] Speaker 01:
But with respect to standard vacuum, yes we briefed that argument.

[00:18:36] Speaker 00:
This is Judge Toronto.

[00:18:38] Speaker 00:
Can I ask a

[00:18:40] Speaker 00:
I guess I have two questions.

[00:18:41] Speaker 00:
One is about the ownership issue and then the other is about the non-enemy property version of your argument about the limitation of the Just Compensation Clause.

[00:18:54] Speaker 00:
Let me start with the ownership.

[00:18:55] Speaker 00:
I think Ms.

[00:18:56] Speaker 00:
Gaines said in her argument that, although I'm not sure this is in the blue brief, but I think she said that as to option number six

[00:19:08] Speaker 00:
registered title documents that the claims court identified as a legitimate way of establishing ownership that the plaintiff here did in fact submit, not submit, did in fact allege that he had a registered title document.

[00:19:32] Speaker 00:
If I understood that right, can you comment on that?

[00:19:35] Speaker 01:
Yeah, what I understand Ms.

[00:19:37] Speaker 01:
Gaines to be saying is what was said in the brief.

[00:19:40] Speaker 01:
That is that the 2004 inheritance agreement was effectively registered with the government.

[00:19:49] Speaker 01:
What we would submit, though, is that characterization of what happened is incorrect.

[00:19:55] Speaker 01:
What is in the record is that Sharifi sent the

[00:20:03] Speaker 01:
inheritance agreement or provided it to the district governor and the district governor issued a statement verifying that it was the inheritance agreement and that Sharifi owned this particular property.

[00:20:20] Speaker 01:
What we counter to that is that the district governor is not competent under Afghan civil law to adjudicate property rights or to adjudicate inheritance rights.

[00:20:32] Speaker 03:
I don't think you're

[00:20:33] Speaker 03:
directly addressing Judge Toronto's question because the question is the inheritance document that she's referring to.

[00:20:44] Speaker 03:
Is that the same as alleging a registered title document?

[00:20:50] Speaker 01:
No.

[00:20:51] Speaker 01:
I'm sorry if I got off track.

[00:20:55] Speaker 01:
What I was

[00:20:55] Speaker 01:
folks on it is what she had said in her brief, which is the sending of this inheritance agreement into the district governor with somehow a registration.

[00:21:04] Speaker 01:
What I'm saying is it wasn't because it was simply a request to an official who is not the land registry official, right, and is not an official that can adjudicate land rights.

[00:21:15] Speaker 01:
And the document itself is not a registered document.

[00:21:18] Speaker 01:
It is not one of the documents that

[00:21:20] Speaker 03:
in afghan court would excepted competent evidence of ownership uh... well if i understood that court of federal claims analysis if the inheritance the court ultimately determined that the inheritance issues were irrelevant because there was no registered document there's not nothing that documented father's ownership is that right there's something that showed there was something to inherit

[00:21:47] Speaker 01:
Yeah, that's right.

[00:21:48] Speaker 01:
I mean, there are several steps in the sort of the chain of title.

[00:21:51] Speaker 01:
But what our experts said is that if you have an inheritance agreement, you have to have attached to that, right, the deed.

[00:21:58] Speaker 01:
And if there's not a deed, you need one of these other competent pieces of evidence that an Afghan court would accept.

[00:22:06] Speaker 01:
And none of that.

[00:22:08] Speaker 00:
I thought I heard Ms.

[00:22:09] Speaker 00:
Gaines say, and maybe I misheard this, that at the time of the inheritance agreement,

[00:22:16] Speaker 00:
The title document was not registered, but it came to be registered later.

[00:22:21] Speaker 01:
Right.

[00:22:21] Speaker 01:
And that's what I was talking about.

[00:22:22] Speaker 01:
The came to be registered later was sending it to the district governor in 2016, I think after the complaint was filed or at some time therein to get the district governor to confirm Sharifi's ownership.

[00:22:35] Speaker 01:
And what I'm saying to you is that that's not, the district governor is not a land registry office.

[00:22:39] Speaker 01:
The district government, according to our expert on Afghan law,

[00:22:42] Speaker 01:
does not have the authority to adjudicate land rights.

[00:22:46] Speaker 01:
And he's not the keeper of the land records.

[00:22:49] Speaker 01:
And there's nothing that Ms.

[00:22:51] Speaker 01:
Gaines proffered that shows any official Afghan government records.

[00:22:57] Speaker 00:
Can I turn to the legal doctrinal point?

[00:23:02] Speaker 00:
Not the enemy property grounds, which you present, I think, quite correctly, as a separate ground under your argument.

[00:23:12] Speaker 00:
number two, but under 2b.

[00:23:15] Speaker 00:
As I understand it, you make an argument that the United States, indeed any sovereign, cannot be liable under the Just Compensation Clause for taking property outside that sovereign's sovereign control.

[00:23:33] Speaker 00:
And I guess I find that when you take away the enemy property and military aspect

[00:23:42] Speaker 00:
a somewhat surprising proposition.

[00:23:48] Speaker 00:
If Georgia took some property in Tennessee, is there no taking claim against Georgia?

[00:23:59] Speaker 01:
That would be an unusual

[00:24:01] Speaker 01:
I mean, it's hard to imagine how Georgia would have the legal authority under Georgia law to take any property in Tennessee.

[00:24:09] Speaker 00:
Right, but so that I guess gets to the point that I guess struck me as the basis of what I guess basically thought was a confusion in your argument.

[00:24:23] Speaker 00:
It may, it probably is quite true that the authority

[00:24:28] Speaker 00:
of a sovereign to exercise eminent domain power is limited to the power, limited to land within the sovereign control.

[00:24:38] Speaker 00:
But I don't understand how that translates into the proposition that if the acting government has authority, not eminent domain authority, but commerce clause authority, military authority, foreign affairs authority, to

[00:24:56] Speaker 00:
go and take some land, why would the Just Compensation Clause, which doesn't refer to eminent domain, not present a constraint on that?

[00:25:11] Speaker 01:
Well, I think it would, Your Honor, but the question is what foreign affairs authority or commerce clause authority gives the United States Army the legal authority to take

[00:25:23] Speaker 01:
private property within the confines of another territory, another nation, another territorial sovereign.

[00:25:31] Speaker 00:
So you think the United States was acting ultra-virus in building?

[00:25:36] Speaker 01:
No, no, no.

[00:25:37] Speaker 01:
But that's the broader point.

[00:25:38] Speaker 01:
The point that we're making in the brief is not that the United States can never be liable for taking actions outside the territorial jurisdiction of the United States.

[00:25:49] Speaker 01:
The case law is to the contrary.

[00:25:52] Speaker 01:
uh... what we are going to like i i i guess i had maybe i misread it i thought that exactly what that piece of your brief set well what we're arguing is that that with the context of are uh... occupation of possession of of private property in a in a foreign country is important and ordinarily there are two there are two basic ways that happens right one is as

[00:26:16] Speaker 01:
If we're seizing property in the course of warfare, or the second ordinary lawful way it happens is with the consent of the nation where we're at.

[00:26:24] Speaker 01:
There are two lawful ways, right?

[00:26:27] Speaker 01:
And setting aside ultra-virus actions that may occur, there are two lawful ways for the U.S.

[00:26:32] Speaker 01:
Army to occupy foreign soil.

[00:26:35] Speaker 01:
One is pursuant to the war powers, and the other is pursuant to the consent of the government.

[00:26:41] Speaker 01:
And what we say here, and consistent with

[00:26:45] Speaker 01:
uh... the in a vacuum case is where there is part of an international security assistance force uh... assisting the the sovereign government of afghanistan in its own uh... internal warfare and struggle uh... in in that context we're not exercising the united states is not exercising its power of eminent domain it is relying on afghanistan's power of eminent domain where uh... it is necessary you know to fulfill its mission under the u n security council resolution

[00:27:14] Speaker 03:
Again, aren't all these, don't these turn on factual questions?

[00:27:20] Speaker 03:
I mean, I guess we all know that we're in Afghanistan, but do we know exactly with respect to this piece of property, how things played out?

[00:27:28] Speaker 03:
And do we even get there on a motion to dismiss?

[00:27:33] Speaker 01:
Judge Malley, I don't, it's a, we're in Afghanistan or we're in Afghanistan under a UN Security Council resolution.

[00:27:40] Speaker 01:
That's a matter of law.

[00:27:41] Speaker 01:
We're there as a matter of an international security assistance force.

[00:27:44] Speaker 01:
That's a matter of law.

[00:27:46] Speaker 01:
There's no dispute that this is simply a combat outpost and it's part of our mission.

[00:27:52] Speaker 01:
There's no dispute that we were doing it in concert with the government of Afghanistan.

[00:27:57] Speaker 01:
It's very difficult for me to conceive of any particular fact that would change the notion that we are there as part of an international security assistance force with the consent of the sovereign government

[00:28:11] Speaker 01:
uh... to help them uh... clear out uh... counterinsurgency by the taliban and in that context uh... you know if our troops need to be house even in a non combat non-enemy property sort of circumstance uh... the proper way to to view it is that the the taking authority of the authority of the sovereign government afghanistan because we're not there acting uh... as a matter of our eminent domain and if you look at the other cases where

[00:28:40] Speaker 03:
the united states has been held liable for taking uh... just one last question uh... capital all those facts that you just recited are they are they in the amended complaint

[00:28:55] Speaker 01:
As far as the legal status with respect to the international force and the resolution, quite frankly, I don't recall whether they're in the complaint.

[00:29:08] Speaker 01:
They are matters of law that are subject to this Court's ability to determine.

[00:29:15] Speaker 03:
Well, are you saying the Court of Federal Claims should have taken judicial notice of certain facts?

[00:29:20] Speaker 01:
Again, I think the security council resolution can be considered a legal matter, not a fact.

[00:29:27] Speaker 01:
But sure, they were subject to notice.

[00:29:29] Speaker 01:
I don't think they're disputed here.

[00:29:32] Speaker 03:
Did you ask the Court of Federal Claims to take judicial notice of those facts?

[00:29:38] Speaker 01:
I believe they're in the court's decision.

[00:29:42] Speaker 01:
This is Judge Wallach.

[00:29:45] Speaker 02:
Speaking of procedural, things procedural.

[00:29:49] Speaker 02:
Why shouldn't we treat this as a Rule 56 conversion?

[00:29:53] Speaker 02:
It was a motion to dismiss, but it was supported by external fact statements, specifically on the government's part, the affidavit by its expert on Afghan law.

[00:30:08] Speaker 02:
And it seems to me that the court below made a determination based on that.

[00:30:17] Speaker 01:
We did say that the court should treat specifically the property ownership question as under a conversion under a Rule 56 summary judgment standard.

[00:30:27] Speaker 03:
But does the court even need to do that when the rules specifically explain what the court may consider when analyzing foreign law?

[00:30:39] Speaker 03:
It actually allows consideration of evidence without a conversion, doesn't it?

[00:30:47] Speaker 01:
yeah you're right if if you can do it without considering hit a summer doesn't that line up rule forty four point one right there were additional proffers of you know maps that uh... the the plaintiff had presented on an evidence of the plaintiff had presented the the head of the duty d coachy village you know verifying on a circle on a map to his his opinion that it belonged to shereefy that that were not proffers on the law and and

[00:31:16] Speaker 01:
And so, but yes, if it's just focusing on properties on the law, sure, treat it as a 12b6.

[00:31:26] Speaker 03:
Okay.

[00:31:29] Speaker 03:
All right.

[00:31:29] Speaker 03:
Anything else, Judge Wallach or Judge Toronto?

[00:31:32] Speaker 00:
Not for me.

[00:31:34] Speaker 00:
That's not for me either.

[00:31:34] Speaker 00:
Thank you.

[00:31:35] Speaker 03:
Thank you, counsel.

[00:31:36] Speaker 00:
Thank you, Your Honor.

[00:31:37] Speaker 03:
James?

[00:31:38] Speaker 04:
Yes.

[00:31:40] Speaker 04:
This was a motion to dismiss the complaint

[00:31:43] Speaker 04:
And the standard of review requires the lower court to accept the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

[00:32:00] Speaker 04:
However, that was not done.

[00:32:02] Speaker 04:
In that sense, the lower court acted as the prior of that.

[00:32:09] Speaker 03:
let me just ask you this.

[00:32:12] Speaker 03:
Rule 44.1 says that the court may consider evidence, even testimony and other materials that would not be even admissible under the federal rules of evidence, and it still is to be treated as a pure question of law in making the determination as to what the law applies.

[00:32:33] Speaker 03:
So why wouldn't we just believe that what the court was doing is determining whether

[00:32:40] Speaker 03:
your client adequately stated a claim under Afghan law?

[00:32:49] Speaker 04:
Because we were not proceeding under Afghan law.

[00:32:55] Speaker 04:
We were proceeding under the Tucker Act and the U.S.

[00:33:01] Speaker 04:
Constitution.

[00:33:04] Speaker 03:
Excuse me?

[00:33:09] Speaker 03:
In any takings context, the establishment of ownership is governed by the local law where the property exists, right?

[00:33:20] Speaker 03:
Yeah.

[00:33:20] Speaker 03:
So, for instance, if you were, you know, alleging that they took your property in the state of Ohio, you would have to look at Ohio law to determine the property ownership.

[00:33:30] Speaker 03:
And here, if you're alleging the property was taken in Afghanistan, you have to establish ownership under Afghan law, correct?

[00:33:41] Speaker 04:
Correct, to a certain extent.

[00:33:44] Speaker 04:
Under the claimant was a beneficial owner whether or not there was a deed presented because the original owner was deceased.

[00:34:08] Speaker 04:
The grandfather who originally acquired the property was deceased.

[00:34:12] Speaker 04:
So the decedent certainly didn't own the property.

[00:34:17] Speaker 04:
It was the heirs whether or not the document was reported.

[00:34:22] Speaker 04:
They still had an interest in the property as beneficial owners.

[00:34:28] Speaker 04:
And that would give them the right to proceed.

[00:34:33] Speaker 03:
Okay.

[00:34:34] Speaker 03:
Thank you, counsel.

[00:34:34] Speaker 03:
The case will be submitted.