[00:00:00] Speaker 03:
The next case is Amir Hekmati versus the United States, 2021-2086.

[00:00:07] Speaker 03:
Ms.

[00:00:08] Speaker 03:
Grimm, please proceed.

[00:00:12] Speaker 02:
Thank you, Your Honor.

[00:00:13] Speaker 02:
May it please the court, Emily Grimm, counsel for appellant Amir Hekmati.

[00:00:18] Speaker 02:
Your Honor, the issue before you today is whether the trial court erred in dismissing Mr. Hekmati's claim for lack of subject matter jurisdiction under the Tucker Act.

[00:00:28] Speaker 02:
As you know, the claim arises from the government's failure to pay an award issued to Mr. Hekmati by the U.S.

[00:00:35] Speaker 02:
Victims of State Sponsored Terrorism Fund in 2017.

[00:00:40] Speaker 02:
Mr. Hekmati has asserted that the government's reconsideration of the award violated the fund's authorizing statute and his claim seeks the roughly $2 million the fund has failed to pay him to date as well as any future payments to which he would have been entitled.

[00:00:56] Speaker 04:
To get to the heart of the matter quickly here, are you contending that the special master lacks any authority to reconsider one of his or her decisions?

[00:01:13] Speaker 04:
I think that's right, Your Honor.

[00:01:15] Speaker 04:
He can't reconsider at all, no matter what.

[00:01:17] Speaker 04:
If the day after the decision, the special master discovers that there's a problem with the decision that does not have the power to reconsider it,

[00:01:26] Speaker 02:
Well, we can we can certainly get into the merits of the reconsideration.

[00:01:30] Speaker 04:
Our ongoing with this, of course, is there is a broad line of cases saying that administrative agencies have the inherent authority to reconsider their decisions.

[00:01:45] Speaker 04:
They don't need to have express statutory or regulatory authority to do so.

[00:01:50] Speaker 04:
That being the case, why isn't this best viewed as a case in which

[00:01:55] Speaker 04:
The special master, having made the decision, later reconsidered the decision and denied relief.

[00:02:04] Speaker 04:
And so the case as it comes to the Court of Federal Claims is a denial of relief, which is not judicially reviewable.

[00:02:13] Speaker 04:
Why isn't that the correct way to review the case?

[00:02:17] Speaker 02:
Sure, and we did brief this on the merits down below.

[00:02:22] Speaker 02:
So I think the reason why the special master is not entitled to reconsider is threefold.

[00:02:30] Speaker 02:
You are correct that there is a broad line of cases saying that the government has inherent authority to reconsider its decisions in the administrative context, but there are limits on that.

[00:02:41] Speaker 02:
And the three limits are when the statute expressly precludes that review,

[00:02:46] Speaker 02:
when the reconsideration doesn't take place within a reasonable time, and if the decision or process was otherwise arbitrary and capricious.

[00:02:57] Speaker 02:
And so in our briefing below, we did get into detail about why all three of those prongs were met.

[00:03:04] Speaker 02:
The first being that the USBSST Act, which I'll probably just refer to as the act, that's a little bit of a mouthful,

[00:03:11] Speaker 02:
expressly states that all decisions by the special master are final and non-reviewable.

[00:03:18] Speaker 04:
Well, non-reviewable is very different from non-reconsiderable.

[00:03:23] Speaker 04:
And that your interpretation of the statute is that it can't, it's not reviewable.

[00:03:30] Speaker 04:
If that means that, again, to take my example, the day after a decision, the special master discovers that in his decision he wrote is

[00:03:39] Speaker 04:
compensated and should have said not compensated that you can't change that.

[00:03:44] Speaker 04:
That's not really your position, is it?

[00:03:48] Speaker 02:
I think that goes to the second prong of the test and that is you're not really saying that the act prohibits reconsideration, correct?

[00:03:58] Speaker 02:
If the case were here that the special master reconsidered Mr. Hekmati's claim because it discovered an administrative error the day after it issued his decision, then I think we would be looking at an analysis of whether that falls within the standard or whether reconsideration is appropriate.

[00:04:21] Speaker 02:
But on the facts of this case, which is what I can speak to,

[00:04:24] Speaker 02:
I think that the timing of the reconsideration, which was the years after his initial decision was issued, and at least based on what we know, 11 months after the information was provided to the funds that was cited as the basis for the reconsideration,

[00:04:43] Speaker 02:
that that very clearly does not fall within the standard of a timely reconsideration.

[00:04:48] Speaker 02:
And I think timeliness is important because if you have a fund where claimants are being paid pro rata, so everybody's payment depends on the next individual, there needs to be an element of finality so that those payments can be made timely and the fund can be administered.

[00:05:06] Speaker 04:
Otherwise, claimants- Here, there is the basis for the special master's reconsideration.

[00:05:13] Speaker 04:
was a finding of fraud.

[00:05:15] Speaker 04:
And isn't it the case that where fraud is present, that concerns about timing are much less important?

[00:05:24] Speaker 04:
That is to say, if the plaintiff has done something to get a judgment that is based on fraud, then it seems that the cases seem to suggest that any concerns about timeliness are much less

[00:05:40] Speaker 04:
And here, if I understand the timing, I thought that the approval of the claim came in December of 2018, and then the department announced that it was seeking reconsideration in October of 2019.

[00:06:01] Speaker 04:
So it was really only 10 months between the time of the approval of the claim and the decision to seek reconsideration.

[00:06:11] Speaker 02:
Do I have the timing right?

[00:06:13] Speaker 02:
I believe the initial, and I can, I can briefly look at my notes to confirm this, but I believe the initial eligibility determination was in late 2017.

[00:06:24] Speaker 02:
That's correct.

[00:06:25] Speaker 02:
And the letter saying.

[00:06:27] Speaker 04:
The special master's actual approval of the claim was, I think December 13th, 2018.

[00:06:34] Speaker 02:
Right, the letter saying you are entitled to receive $839,000, which will be issued sometime in the next year.

[00:06:41] Speaker 02:
That's right.

[00:06:42] Speaker 04:
And 10 months later, the Department of Justice said we're seeking reconsideration, right?

[00:06:48] Speaker 04:
That's correct.

[00:06:49] Speaker 04:
Okay.

[00:06:51] Speaker 02:
And to answer your question about whether the limitations on reconsideration go out the window when allegations of fraud are at issue,

[00:07:00] Speaker 02:
I think the answer is those limitations still exist.

[00:07:05] Speaker 02:
I believe the cases we cited in our briefs before the trial court in the Tokyo case, I believe fraud was alleged if I'm remembering correctly.

[00:07:14] Speaker 02:
And that is the very case where the court laid out the standard for all of those limitations on reconsideration.

[00:07:22] Speaker 02:
And so I don't think that the cases say that the standard goes out the window when fraud has been alleged by the government.

[00:07:32] Speaker 03:
Okay.

[00:07:37] Speaker 02:
So if it would be useful to the court, I can plan on briefly addressing the trial courts, two grounds for holding that at lack jurisdiction and why the court- Can I just ask you one quick question before you move off of this line?

[00:07:50] Speaker 01:
Of course.

[00:07:51] Speaker 01:
Why would 10 months be unreasonable?

[00:07:53] Speaker 01:
You just kind of walked through the timeline with Judge Bryson.

[00:07:55] Speaker 01:
I want to understand from you why 10 months seems unreasonably long.

[00:08:00] Speaker 02:
Sure, so I think if you look at the spectrum of cases of determining what is not timely, there are several cases that say we're talking about weeks being reasonable and not months.

[00:08:16] Speaker 02:
The timeline was as follows.

[00:08:19] Speaker 02:
The special master deemed Mr. Hekmati eligible in December of 2017.

[00:08:25] Speaker 02:
In December of 2018, he said,

[00:08:29] Speaker 02:
The fund has money, you will be receiving your first payment of $839,000 soon.

[00:08:35] Speaker 02:
The fund then paid all eligible claimants except Mr. Hekmati in January, so within several weeks, and declined to answer any of Mr. Hekmati's calls, calls by council, members of Congress were inquiring as to what the holdup was,

[00:08:53] Speaker 02:
And the only information that we received was, well, payments are still being made and eventually just nothing at all.

[00:09:01] Speaker 02:
And so really the first time we heard something from the government was 11 months later when there had been a report published in Congress saying essentially everyone has been paid.

[00:09:15] Speaker 02:
Council wrote to the fund saying, we don't understand what's going on here.

[00:09:20] Speaker 02:
We've been calling you for 11 months.

[00:09:23] Speaker 02:
We've received no information whatsoever.

[00:09:25] Speaker 02:
And frankly, Mr. Hekmati is out of options and is going to have to file legal action to compel this payment if we don't hear from you.

[00:09:34] Speaker 02:
And it was only 13 days after that that DOJ said, we're reconsidering and we're putting a freeze on your payment.

[00:09:43] Speaker 02:
And so looking at the case law that we cited to the court below, again, it was more than days, it was more than weeks, it was close to a year.

[00:09:52] Speaker 02:
Now, had it been perhaps, I think the record also shows that the information that was used as the basis for the reconsideration was within the funds possession back in January.

[00:10:07] Speaker 02:
Otherwise, why would they have not paid him?

[00:10:10] Speaker 02:
Why would they have put a hold on his payment for that long?

[00:10:13] Speaker 02:
And so under the case law, it just seems that 11 months of sitting on that information and then doing nothing about it until the claimant says, I have no other recourse here except to sue you.

[00:10:28] Speaker 02:
And then reconsidering that to us does not seem to fit within permissible reconsideration under the case law.

[00:10:37] Speaker 04:
Now you mentioned the Tokyo case as being a case that

[00:10:42] Speaker 04:
incorporated some kind of requirement of reasonable action.

[00:10:48] Speaker 04:
As I recall, looking at it, I think this is right, that the reasonable time in the Tokyo case was reasonable time after learning of information indicating that the decision may have been painted by fraud, but not a requirement of reasonable action prior to the time of learning of information.

[00:11:10] Speaker 04:
that it's tainted by fraud.

[00:11:12] Speaker 04:
Is that consistent with your understanding?

[00:11:17] Speaker 02:
I think that's consistent with my understanding and I would say here the fund had in its possession based on the information we have obtained to date as of January 2019 and so there was an 11-month lag between when the fund had the relevant information

[00:11:35] Speaker 02:
and when the reconsideration was commenced.

[00:11:38] Speaker 04:
How do we know that the fund had the information that was necessary to change its mind about the payment?

[00:11:47] Speaker 02:
Because they paid every other claimant except Mr. Hekmati.

[00:11:50] Speaker 04:
And then simply because they had reason to believe that there might be some kind of problem, but they needed to investigate further, correct?

[00:11:59] Speaker 02:
then I would say that they had information or reason to believe that perhaps the reconsideration was warranted and that that would have started the clock.

[00:12:07] Speaker 02:
And frankly, this is the type, you are correct, this is exactly the type of information we would seek during discovery and determining whether this reconsideration really falls within what is appropriate under the standard.

[00:12:23] Speaker 02:
It's hard to do that in a vacuum, in a black box, but as far as we can see, there was no other reason for them to delay his payment by 11 months, unless it already had some sort of information that was causing it to consider, decide whether it needed to reconsider his case.

[00:12:46] Speaker 03:
Counsel, you're well on your rebuttal time.

[00:12:48] Speaker 03:
You can continue or save it.

[00:12:53] Speaker 02:
I will just state briefly that with respect to the jurisdictional arguments, as we covered in our brief, the problem with both grounds of the courts, both grounds the court relied upon in dismissing for subject matter jurisdiction.

[00:13:10] Speaker 02:
is that they're based on the premise that Mr. Hekmati is seeking a review of a compensation decision by the special master and that's not what's happening here.

[00:13:19] Speaker 02:
The special master made his compensation decision when he found Mr. Hekmati eligible in 2017.

[00:13:24] Speaker 02:
That decision was final and non-reviewable and Mr. Hekmati has never challenged it.

[00:13:31] Speaker 02:
It is the government

[00:13:33] Speaker 02:
who has sought reconsideration of that decision years after it was issued, and it's that unauthorized reconsideration that forms the basis for Mr. Hekmati's claim, a claim that was filed well before the special master even began the reconsideration process.

[00:13:50] Speaker 01:
So you are seeking review of the reconsideration decision.

[00:13:52] Speaker 01:
Is that what you just indicated?

[00:13:54] Speaker 02:
Not the outcome of the decision, the fact that he reconsidered at all.

[00:14:00] Speaker 02:
Our position is that the special master had no authority to reconsider to begin with, and the government had no authority to seek reconsideration in these circumstances pursuant to the act.

[00:14:12] Speaker 03:
Thank you, Ms.

[00:14:13] Speaker 03:
Grimm.

[00:14:14] Speaker 03:
Ms.

[00:14:14] Speaker 03:
Rose.

[00:14:18] Speaker 00:
Thank you, Your Honor.

[00:14:19] Speaker 00:
Can you hear me?

[00:14:22] Speaker 00:
Yes.

[00:14:23] Speaker 00:
May I please the court?

[00:14:24] Speaker 00:
I would like to start with the court's decision on jurisdiction, because here, while we do believe that if the reconsideration decision were before the court, we would prevail on the merits there, the trial court properly found that the USPSSP Act does not provide a cause of action for damages.

[00:14:45] Speaker 00:
In creating a discretionary benefits program like this, where Congress created a fund to compensate victims

[00:14:54] Speaker 00:
of terrorist acts committed by other sovereign nations, it was under no obligation to create a remedy in court, and it did not.

[00:15:03] Speaker 00:
Let me ask you a question.

[00:15:05] Speaker 04:
Suppose instead of the facts of this case that the Special Master had actually issued an award and not reconsidered the award, but the Secretary of the Treasury

[00:15:18] Speaker 04:
decided not to cut a check in that amount because the Secretary of the Treasury believed that there was something fishy about Mr. Hekmati's request.

[00:15:28] Speaker 04:
Would a challenge to the Secretary of the Treasury's decision not to pay be reviewable by the Court of Federal Claims?

[00:15:39] Speaker 00:
Your Honor, that is an interesting hypothetical here.

[00:15:42] Speaker 00:
I'd like to know the answer to it.

[00:15:45] Speaker 00:
Hypothetical it may be, but what's your answer?

[00:15:49] Speaker 00:
I believe we need to go back to the Act and whether or not the Act creates a cause of action for damages based on violations of the Act.

[00:15:58] Speaker 00:
And here it does not.

[00:15:59] Speaker 00:
And I believe that that is what forms, arrogant, ousting, and the like stand for.

[00:16:04] Speaker 00:
So in that circumstance, certainly there may be other avenues that a claimant might pursue that seems perhaps a failure of

[00:16:16] Speaker 00:
a process, a constitutional due process, or potentially the claimant may need to petition Congress.

[00:16:24] Speaker 00:
And certainly in that circumstance, DOJ and the special master might get involved too, because they would have, if they believe that the claimant was eligible, they would not want someone outside of the agency and outside of the program meddling with that decision.

[00:16:40] Speaker 00:
But as the court said in Erika,

[00:16:45] Speaker 00:
The touchstone is the language of the Act, and the Act does not provide a cause of action to applicants, happy or otherwise, for review in the court.

[00:16:57] Speaker 00:
And it's been long recognized that where Congress creates such discretionary programs, it's under no obligation to provide a remedy in court, and here it did not.

[00:17:11] Speaker 01:
What is your response to opposing counsel's argument that there was unreasonable delay in reconsidering the first decision?

[00:17:18] Speaker 00:
Your honor, I. Excuse me, Judge Bryson stated it correctly that the Tokyo decision states that the reconsideration must be within a reasonable time, whether it's fraud or.

[00:17:33] Speaker 00:
the concern of fraud on the original decision within learning of that information.

[00:17:38] Speaker 00:
Here, the special master and the department were in uncharted waters where they learned that the there may have been an eligibility determination that was based on fraud.

[00:17:49] Speaker 00:
And so there were really two aspects of that.

[00:17:52] Speaker 00:
First of all, the information that was available was classified.

[00:17:56] Speaker 00:
And so they had to make

[00:17:59] Speaker 00:
determinations about how reconsideration could be achieved in that circumstance.

[00:18:07] Speaker 00:
What they decided to do was declassify a record that they would make available to both the special master and Mr. Hekmati.

[00:18:14] Speaker 00:
So Mr. Hekmati had the full record that special master had access to, and that takes some time.

[00:18:19] Speaker 00:
And I would say also that they were very careful and, and

[00:18:26] Speaker 00:
Speaking to correctly determine whether or not.

[00:18:29] Speaker 00:
The special master here and then in a. Question that was posed to it before the very 1st time had the authority to reconsider and reopen his initial decision in this circumstance, and they, they found it.

[00:18:43] Speaker 00:
And we believe correctly that the special master does.

[00:18:51] Speaker 03:
That's the issue as your opposing counsel sees it, whether the Special Master had a right to withdraw the determination rather than whether Mr. Akmati had a right to judicial review.

[00:19:06] Speaker 00:
Yes, Your Honor.

[00:19:07] Speaker 00:
However, when determining whether or not the Tucker Act can be superimposed over a

[00:19:18] Speaker 00:
Let me actually state instead, in determining whether or not an act contains a comprehensive remedial scheme, the court does not look to a plaintiff's characterization of their claim, but instead looks at what is the claim at its root.

[00:19:32] Speaker 00:
And you see this in, for example, the Biltmore and Fulton line of cases.

[00:19:39] Speaker 00:
Here, what is this claim at its root?

[00:19:41] Speaker 00:
A disagreement with the special master's determination that Mr. Hekmati is not

[00:19:46] Speaker 00:
eligible to receive compensation from the fund.

[00:19:49] Speaker 00:
And that is precisely what Congress said the court should not look into.

[00:19:53] Speaker 00:
And where I believe Borms would teach us that superimposing a Tucker Act general remedy on that specific and comprehensive remedial scheme, which was no less specific and comprehensive by being a short and compact act,

[00:20:14] Speaker 00:
would be interfering with Congress's intended liability under the Act.

[00:20:25] Speaker 03:
Anything further, Ms.

[00:20:27] Speaker 03:
Rose?

[00:20:31] Speaker 00:
No, Your Honors.

[00:20:32] Speaker 00:
If the Court does not have any further questions, we rest on our arguments today and in our brief.

[00:20:37] Speaker 03:
Thank you.

[00:20:38] Speaker 03:
No one loses points by not using up all their arguments.

[00:20:42] Speaker 03:
Ms.

[00:20:43] Speaker 03:
Grimm has some rebuttal time, though.

[00:20:50] Speaker 02:
Thank you, Your Honor.

[00:20:51] Speaker 02:
I did want to speak briefly to opposing counsel's point regarding Tucker Act preemption, and that is that the cases

[00:21:00] Speaker 02:
that the government and the trial court relied upon found that Tucker Act jurisdiction was preempted only when the relevant statute or its legislative history unambiguously provided an exclusive remedial scheme.

[00:21:14] Speaker 02:
And here the Act's remedial framework addresses only instances where the claimant is challenging the special master's eligibility determination and the amount that it was awarded.

[00:21:25] Speaker 02:
There is no framework for addressing

[00:21:28] Speaker 02:
failure to pay an award that's already been adjudicated, unauthorized reconsideration of a final award or really any other violations of the act by the government.

[00:21:39] Speaker 02:
And so we do see that as a flaw in the logic there.

[00:21:45] Speaker 02:
I'm also happy to provide the cases I referenced regarding what is a reasonable amount of time, finding that an 11th month lag or something similar is untimely.

[00:21:55] Speaker 02:
Thank you.

[00:21:58] Speaker 03:
Thank you both counsel the cases submitted.