[00:00:00] Speaker 02:
Okay, Ms.

[00:00:03] Speaker 02:
Taylor?

[00:00:07] Speaker 02:
Yes.

[00:00:08] Speaker 01:
Good afternoon.

[00:00:10] Speaker 02:
Not yet.

[00:00:12] Speaker 01:
No.

[00:00:13] Speaker 02:
Still morning.

[00:00:13] Speaker 01:
Still morning.

[00:00:18] Speaker 01:
Go ahead.

[00:00:20] Speaker 01:
Okay.

[00:00:21] Speaker 01:
Good afternoon.

[00:00:22] Speaker 01:
May it please the court, Theresa Taylor, for asking Holdings, appellant,

[00:00:31] Speaker 01:
Your honor, so Ascand Holdings has, since February 2016, since its money was originally seized, regulatory takings from OFAC has

[00:00:51] Speaker 01:
suffered immensely as a result.

[00:00:54] Speaker 02:
What about 1500?

[00:00:54] Speaker 02:
1500, issued.

[00:00:56] Speaker 02:
You've got a ruling which is arguably collateral estoppel on the 1500 question, and you've got a new 1500 question presented by the second complaint.

[00:01:08] Speaker 02:
How do you get around that?

[00:01:11] Speaker 01:
So looking at the Ascan II, which is the case currently on appeal,

[00:01:20] Speaker 01:
That case is drastically different from the first case.

[00:01:25] Speaker 01:
The amended complaint and ASCAN 1 was not considered at all by the prior trial judge and specifically stated such that he could not review it at all.

[00:01:37] Speaker 01:
The original complaint.

[00:01:39] Speaker 03:
The prior judge, you were talking to ASCAN 1 or ASCAN 2?

[00:01:41] Speaker 01:
Yes, ASCAN 1.

[00:01:42] Speaker 01:
ASCAN 1.

[00:01:43] Speaker 01:
My apologies.

[00:01:45] Speaker 01:
So the writ of mandamus that was filed in the US District Court was not

[00:01:51] Speaker 01:
did not allege any takings claims.

[00:01:52] Speaker 01:
In fact, it didn't allege any claims.

[00:01:55] Speaker 03:
Was it a due process claim?

[00:01:56] Speaker 01:
No, it was not a due process claim.

[00:01:58] Speaker 01:
Actually, it was not.

[00:02:00] Speaker 01:
It was originally filed to specifically, it was declaratory and injunctive.

[00:02:07] Speaker 01:
And it was filed specifically and solely to get OFAC to rule and make its decision on the fourth petition filed, the first three.

[00:02:15] Speaker 02:
Whether or not that's true, the court of federal claims determined that your first

[00:02:20] Speaker 02:
complaint was barred by 1500.

[00:02:23] Speaker 02:
And you did not appeal that determination, right?

[00:02:28] Speaker 01:
No.

[00:02:30] Speaker 01:
We did.

[00:02:31] Speaker 01:
And then when we appealed, the judge below said no.

[00:02:35] Speaker 01:
The claims were the same as the amended complaint in Askin 1, which was not the case.

[00:02:41] Speaker 01:
So the facts here are a little bit confusing with what happened.

[00:02:44] Speaker 01:
And I think it's important to understand, because it does directly relate to 1500.

[00:02:48] Speaker 01:
And the government's going to argue

[00:02:51] Speaker 01:
similar, similarly, but for the other side.

[00:02:54] Speaker 01:
I'm missing what you said.

[00:02:57] Speaker 01:
So if we could go back for a moment.

[00:03:00] Speaker 03:
Our guiding judge asked you when ASCAN 1 was handed down by the Court of Federal Claims, right?

[00:03:07] Speaker 03:
ASCAN 1 was handed down, and they said you lose on 1,500.

[00:03:12] Speaker 03:
You did not appeal that decision to us.

[00:03:17] Speaker 01:
No.

[00:03:18] Speaker 01:
That case was different than the one filed to ask into, so I apologize.

[00:03:21] Speaker 03:
That wasn't the question that the president was asking you, ma'am, was whether or not you appealed that decision.

[00:03:28] Speaker 03:
The answer is no.

[00:03:30] Speaker 01:
No, I don't believe so.

[00:03:31] Speaker 01:
Your Honor, no.

[00:03:32] Speaker 01:
You do not appeal that decision?

[00:03:34] Speaker 01:
No.

[00:03:35] Speaker 02:
OK, so that became final.

[00:03:36] Speaker 02:
It could not.

[00:03:37] Speaker 02:
And then the question is, is that decision collateral estoppel?

[00:03:42] Speaker 02:
with respect to the second complaint that was filed in the Court of Federal Claims.

[00:03:47] Speaker 01:
If I remember correctly, I apologize.

[00:03:48] Speaker 02:
And when I look at the two, I find that there's very little difference between them.

[00:03:54] Speaker 02:
So why don't we have collateral estoppel between that original decision, unappealed, and the current one?

[00:04:01] Speaker 01:
The first case was not considered on the merits, and the judge said that he could not view them.

[00:04:06] Speaker 01:
So it was not actually dismissed under 1500

[00:04:11] Speaker 01:
He was just not able to go and look at what he was not.

[00:04:16] Speaker 01:
It was not dismissive prejudice, should I say, because he was not able to view the amended complaint.

[00:04:22] Speaker 01:
The first complaint was submitted in error.

[00:04:24] Speaker 01:
And it was based on the writ.

[00:04:26] Speaker 01:
Wait, wait, wait.

[00:04:27] Speaker 02:
Show me where he says that he can't decide on an error.

[00:04:31] Speaker 01:
I believe we include it in our brief and our reply brief.

[00:04:34] Speaker 01:
And it is also in the child's rep.

[00:04:35] Speaker 02:
Where in the appendix is that decision?

[00:04:39] Speaker 01:
Got to give me, I don't know that I can point to it that quickly, but I can certainly.

[00:04:44] Speaker 03:
You're now talking about the original decision, the S&1 decision that was rendered by Judge Kirtling.

[00:04:51] Speaker 03:
Correct?

[00:04:53] Speaker 03:
That's it.

[00:04:53] Speaker 03:
Appendix 210 and following.

[00:04:58] Speaker 01:
I believe his ruling and the direct quote we used from the transcript was that he was barred from considering those

[00:05:08] Speaker 01:
He was barred from looking at Ascan, the amended complaint, which was the takings claim.

[00:05:17] Speaker 01:
There was no takings claim filed.

[00:05:19] Speaker 03:
The law requires you to, when you're matching, when you're trying to decide whether there is the overlap that 1500 precludes, what you look at is the district court, wherever that pending is,

[00:05:35] Speaker 03:
And then you look at the initial filing at the court of federal claims, you don't look at a amended filing.

[00:05:42] Speaker 01:
Right.

[00:05:42] Speaker 03:
And that is because the law says that is what you do.

[00:05:46] Speaker 03:
You're not allowed to look at the amended complaint to see whether there is a prohibited overlap of underlying operative facts.

[00:05:55] Speaker 02:
The first complaint didn't.

[00:05:57] Speaker 02:
So we have on 221 the conclusion by the Court of Federal Claims, and he says that 1500, this case is precisely the sort that section 1500 precludes.

[00:06:08] Speaker 02:
So why isn't... No, it precludes from... And he says we lack jurisdiction over the claim so that the motion is dismissed as granted.

[00:06:15] Speaker 01:
It did not include any takings claims whatsoever.

[00:06:18] Speaker 01:
And he was looking at the original complaint file that had no takings claims.

[00:06:22] Speaker 02:
Okay, but that doesn't, your statement about what the district court, what the Court of Federal Claims did is inaccurate.

[00:06:29] Speaker 02:
What we have is a decision that the first Court of Federal Claims complaint was barred by 1500.

[00:06:36] Speaker 02:
Then the question for collateral estoppel becomes whether effectively the first complaint and the second complaint are identical, correct?

[00:06:46] Speaker 01:
So, Your Honor.

[00:06:48] Speaker 02:
Yes, no.

[00:06:50] Speaker 01:
The first complaint and the second complaint are not identical.

[00:06:52] Speaker 01:
The amended complaint was not considered.

[00:06:54] Speaker 02:
If they're identical, you're barred by collateral estoppel.

[00:06:57] Speaker 01:
There were no takings claims in the first original complaint filed.

[00:07:00] Speaker 01:
No, wait, wait.

[00:07:00] Speaker 02:
You're not answering my question.

[00:07:01] Speaker 02:
If the first and the second complaint are identical, you're barred by collateral estoppel, right?

[00:07:06] Speaker 01:
The first and second complaint of which?

[00:07:08] Speaker 01:
I'm sorry.

[00:07:08] Speaker 02:
In the Board of Federal Claims.

[00:07:10] Speaker 01:
You mean ASCAN 1, the first original complaint that did not have any takings claims in it whatsoever?

[00:07:16] Speaker 01:
And then the second case of which we're on appeal for right now that was a takings complaint.

[00:07:20] Speaker 02:
If, in fact, those two complaints are identical, you're barred.

[00:07:24] Speaker 01:
They're not identical.

[00:07:25] Speaker 01:
The original one?

[00:07:26] Speaker 02:
No, no.

[00:07:27] Speaker 02:
Answer my question.

[00:07:28] Speaker 02:
If they are identical, you're barred, right?

[00:07:31] Speaker 01:
Yes, but that's not what the trial judge and ASCAN 1, the quote that we have in our pleadings, he specifically stated that he was not able to even go to the merits, and it was not dismissed.

[00:07:41] Speaker 02:
He dismissed on 1500.

[00:07:42] Speaker 02:
What are you talking about?

[00:07:44] Speaker 01:
He did not go to the merits of any claims.

[00:07:45] Speaker 03:
When the merits were talking about a takings claim.

[00:07:47] Speaker 01:
A takings claim.

[00:07:48] Speaker 03:
The problem is the first complaint that your client filed in the Court of Federal Claims was it referred to the word takings in a heading.

[00:07:59] Speaker 03:
And then it had two subsets of the so-called taking.

[00:08:03] Speaker 03:
And both of those two subsets were framed as due process violations.

[00:08:08] Speaker 03:
Fifth Amendment due process, not Fifth Amendment taking.

[00:08:12] Speaker 03:
Correct?

[00:08:13] Speaker 03:
That was a clerical error.

[00:08:15] Speaker 03:
No.

[00:08:15] Speaker 03:
And then you later filed an amended complaint in which you said, oh, no, we mean takings.

[00:08:20] Speaker 03:
We didn't mean due process.

[00:08:23] Speaker 01:
So the due process was forever.

[00:08:24] Speaker 03:
And the judge said, I'm sorry.

[00:08:25] Speaker 03:
I see what you're saying.

[00:08:27] Speaker 03:
But for me to decide whether the underlying facts, operative facts, are the same for your complaint in

[00:08:36] Speaker 03:
district court in front of me, I have to look at the initial complaint.

[00:08:41] Speaker 03:
I'm not allowed to look at the second complaint.

[00:08:45] Speaker 03:
So whether you were talking about whether these underlying facts resulted in a due process violation on the one hand, or whether they related in the takings claim on the other, he said, that is immaterial to me.

[00:08:59] Speaker 03:
I'm simply looking at the underlying facts.

[00:09:02] Speaker 01:
Can I explain about the underlying district court case?

[00:09:05] Speaker 01:
Because I think there's a little confusion.

[00:09:06] Speaker 03:
What he also said is the body of law, 1500 body of law, is it doesn't make any difference whether your theory is takings or due process.

[00:09:16] Speaker 03:
Can I explain?

[00:09:17] Speaker 03:
So long as the underlying facts are the same.

[00:09:19] Speaker 03:
And it doesn't make any difference if you ask for different relief.

[00:09:21] Speaker 03:
You ask for an injunctive relief in the district court.

[00:09:25] Speaker 03:
You ask for money relief.

[00:09:27] Speaker 03:
And the difference in relief makes no difference.

[00:09:30] Speaker 03:
All you can look at is underlying facts.

[00:09:33] Speaker 01:
Respectfully, Your Honor?

[00:09:34] Speaker 01:
You look like I'm wrong.

[00:09:35] Speaker 01:
Well, because I represented the client after three prior law firms and helped him with the writ of mandamus.

[00:09:43] Speaker 01:
And I am very, very familiar with,

[00:09:46] Speaker 01:
When you see status motion updates filed those were not status motions updates It was contentious about the record getting the unclassified administrative portion of the record It was not filed as an APA claim.

[00:09:58] Speaker 01:
It was not filed as due process It was filed specifically to get a decision on the petition the fourth petition that was filed since going back since the money was first originally taken back in 2016 also

[00:10:10] Speaker 02:
It was at one point to get a decision, and if the decision was- You're totally confusing two things here, OK?

[00:10:15] Speaker 02:
One is the collateral estoppel, because the Court of Federal Claims decided that your first complaint was barred by 1,500.

[00:10:23] Speaker 02:
If the first and the second complaints are the same, then collateral estoppel applies, and that's the end of it.

[00:10:29] Speaker 02:
OK, that's one theory.

[00:10:30] Speaker 02:
The other theory is that by comparing the complaint now in ASCAN 2 with the district court complaint, that they have the same

[00:10:38] Speaker 02:
set of operative facts, so 1,500 is an independent bar.

[00:10:42] Speaker 02:
We don't need to reach that second question if we find there's collateral estoppel at the first and second complaints in the Court of Federal Appointments were essentially identical.

[00:10:51] Speaker 02:
And to me, they are, because they both use the term takings.

[00:10:55] Speaker 02:
One refers to due process.

[00:10:57] Speaker 02:
The other doesn't.

[00:10:58] Speaker 02:
That's a trivial difference.

[00:11:00] Speaker 01:
I don't think it's a, respectfully, I do not think it's a trivial difference.

[00:11:03] Speaker 01:
The claims are drastically different.

[00:11:04] Speaker 01:
In fact, it was an incredibly different action that was filed

[00:11:07] Speaker 01:
in the district court.

[00:11:08] Speaker 01:
It was not a claim for APA.

[00:11:11] Speaker 01:
That claim.

[00:11:12] Speaker 02:
That's not the point.

[00:11:13] Speaker 02:
The point is whether the first and second complaints in the court of federal claims are the same.

[00:11:20] Speaker 01:
Then I think if you're going to do that, you have to hone in on a clerical error.

[00:11:23] Speaker 01:
And that is not good.

[00:11:26] Speaker 01:
I don't think that that's proper justice for my client.

[00:11:28] Speaker 01:
My client has been trying to get his day on the merits.

[00:11:33] Speaker 01:
takings, which has not happened, nor can it ever happen on any APA.

[00:11:37] Speaker 01:
So it's never going to be the same, because we never got the unclassified portion of the administrative record, even though that court ordered Andrea Gacchi to appear personally before the court and provide such.

[00:11:47] Speaker 01:
And it never happened.

[00:11:48] Speaker 01:
So this is it.

[00:11:49] Speaker 01:
He has a takings claim.

[00:11:51] Speaker 01:
The owner of this company, they tried to start a separate commuter route.

[00:11:55] Speaker 01:
They already owned different airline companies.

[00:11:58] Speaker 01:
They came to the United States to do a deal

[00:12:01] Speaker 01:
did their due diligence, hired multiple firms, chose to do it in US dollars, chose to use a US company and a US plane.

[00:12:13] Speaker 01:
Money gets seized.

[00:12:15] Speaker 01:
They spent multiple years trying to find out why.

[00:12:18] Speaker 04:
After your district court case got dismissed, how come at that time you didn't just

[00:12:30] Speaker 04:
another possible 1,500 problem.

[00:12:32] Speaker 01:
Well, as I just stated, we do not have the unclassified administrative portion of the record, which you need to file an APA case.

[00:12:41] Speaker 01:
We don't have that.

[00:12:42] Speaker 01:
So we don't know what happened.

[00:12:43] Speaker 01:
We don't know why.

[00:12:45] Speaker 04:
I'm talking about a new filing at the court of federal law.

[00:12:51] Speaker 04:
Because ASCAN 2 was very clearly under threat of a possible section 1,500 problem, which the district court found.

[00:13:00] Speaker 01:
Well, because the takings claims were never considered.

[00:13:02] Speaker 01:
And despite the clerical errors, it was not the same.

[00:13:05] Speaker 01:
They were not the same claims, not the same evidence, not the same issues.

[00:13:10] Speaker 01:
You're talking about a writ of mandamus for an injunction to please issue a decision.

[00:13:15] Speaker 01:
During that writ, the fourth petition was denied.

[00:13:19] Speaker 01:
It was during that writ that the client discovered a whole lot of information, including the achievement

[00:13:26] Speaker 01:
That evolved into a situation trying to get the money back, which did not even happen until 2021, September.

[00:13:33] Speaker 01:
Then, in the meantime, trying to look, OK, well, this is seeing that it's evolving, that what is really happening here.

[00:13:40] Speaker 01:
The company is going bankrupt.

[00:13:41] Speaker 01:
The parent company goes bankrupt.

[00:13:43] Speaker 01:
The international reputational harm to both companies is immense as a result of the taking.

[00:13:48] Speaker 01:
Consequential damages.

[00:13:50] Speaker 01:
I'm sorry?

[00:13:51] Speaker 03:
You got your money back with interest under the

[00:13:55] Speaker 03:
Case law on takings, you're not entitled to consequential damages.

[00:13:59] Speaker 01:
Extreme undue delay.

[00:14:00] Speaker 01:
I think we have a different opinion.

[00:14:01] Speaker 03:
You're not entitled to consequential damages.

[00:14:04] Speaker 01:
I think the whole, I think the case law that we've cited, I disagree, Your Honor.

[00:14:09] Speaker 03:
I think the case law that we have cited.

[00:14:11] Speaker 03:
You have four hills to climb here.

[00:14:14] Speaker 03:
And you're stumbling on the preclusion hill.

[00:14:16] Speaker 03:
Then you have the merits appeal on Esken 2.

[00:14:20] Speaker 03:
which is clearly, in my judgment, 1,500 bar.

[00:14:23] Speaker 03:
Then you have the mootness argument, because you got paid your money plus interest, and you can't get consequential damages.

[00:14:30] Speaker 03:
And you questionably don't like constitutional standing.

[00:14:34] Speaker 01:
I disagree.

[00:14:35] Speaker 01:
I think our pleadings show the other.

[00:14:37] Speaker 01:
And we've cited cases that are excellent, even opposing counsel cites cases that can be beneficial to our client here.

[00:14:43] Speaker 01:
So I think that the precedent shows that it's more than just getting back exactly what was taken.

[00:14:49] Speaker 01:
When a company goes down, you know, Kimball Laundry, all these other cases that we cite, there are a ton of cases here.

[00:14:55] Speaker 01:
When the company goes down and the impact has resulted from the initial taking, which is 2016, all the way through to at least 2021, it's not just the $1 million that funded the company to buy a plane.

[00:15:10] Speaker 01:
It was way more than that.

[00:15:11] Speaker 01:
They lost their licenses.

[00:15:13] Speaker 01:
Nobody wanted to deal with them anymore.

[00:15:14] Speaker 01:
The international press was, they lost their financing.

[00:15:18] Speaker 01:
Their bank accounts were closed.

[00:15:20] Speaker 01:
There was a whole huge ripple effect as a result prior to that money being refunded.

[00:15:24] Speaker 01:
And I think that it really is unfair to ask Dan to say, we see two identical words here.

[00:15:33] Speaker 03:
And therefore, same issues.

[00:15:35] Speaker 03:
The motion to dismiss at the end the district court proceedings, that was filed by your client.

[00:15:44] Speaker 03:
I'm sorry, can you repeat that?

[00:15:46] Speaker 03:
The motion to dismiss was filed.

[00:15:53] Speaker 03:
Motion to dismiss?

[00:15:54] Speaker 01:
Oh, you mean from the writ?

[00:15:56] Speaker 03:
No.

[00:15:57] Speaker 03:
What puzzled me as strange was that you filed the second case, Ascan 2, while you had pending a motion to dismiss.

[00:16:06] Speaker 01:
No, no.

[00:16:06] Speaker 01:
We didn't file that.

[00:16:07] Speaker 01:
First off, what happened was

[00:16:09] Speaker 01:
We needed to make sure that we got the money for the client.

[00:16:11] Speaker 01:
The government moved to dismiss quickly.

[00:16:14] Speaker 01:
And first, there were no claims.

[00:16:15] Speaker 03:
Can I finish?

[00:16:16] Speaker 03:
ASCAN 2 was filed on September 2, 2021, correct?

[00:16:22] Speaker 03:
I'm talking now about the second case, right?

[00:16:24] Speaker 01:
Yes, sounds correct.

[00:16:25] Speaker 03:
And while you filed that case, the district court had not yet dismissed

[00:16:31] Speaker 03:
That was because they were waiting.

[00:16:33] Speaker 03:
That is not... That's the reason why there is a merits decision on the second ask-in, not an issue preclusion of $1,500.

[00:16:42] Speaker 03:
If I could explain what happened there?

[00:16:43] Speaker 03:
But you don't contest that the district court case was still pending when you filed ask-ins.

[00:16:48] Speaker 01:
That's not actually correct.

[00:16:50] Speaker 01:
The judge was waiting until we confirmed that the check was in hand in our client's possession.

[00:16:57] Speaker 01:
That's why there was delay there.

[00:16:59] Speaker 01:
Originally, once the license was issued by OFAC to Ascan, OFAC had to issue multiple licenses for the money to even move back to Ascan, which took a very long time.

[00:17:12] Speaker 03:
But my point is, if you had waited to file Ascan 2 until after September 23, you would not have been met with a 1,500 claim.

[00:17:25] Speaker 01:
Again, the writ of mandamus is nothing like a takings claim.

[00:17:29] Speaker 01:
And they're not the same, not the same evidence, not the same claim, not anything the same.

[00:17:33] Speaker 01:
The writ of mandamus is declaratory and junta.

[00:17:35] Speaker 01:
I think we're out of time.

[00:17:36] Speaker 01:
Thank you.

[00:17:37] Speaker 01:
All right, thank you.

[00:17:38] Speaker 02:
We'll give you a minute for rebuttal.

[00:17:42] Speaker 02:
Mr. Yale.

[00:17:52] Speaker 00:
Thank you, Your Honor.

[00:17:53] Speaker 00:
May it please the Court?

[00:17:55] Speaker 00:
So as we set forth in our briefing, we think that there's both a collateral estoppel issue here with respect to asking one, even if that was not the case.

[00:18:07] Speaker 00:
In just a de novo review of 1500, there's a 1500 issue here.

[00:18:12] Speaker 00:
And it's not a difficult 1500 issue here, because

[00:18:16] Speaker 00:
What Askin is pointing to in both of these cases, the amended district court, that's the operative complaint.

[00:18:23] Speaker 00:
It's not the first complaint, as my colleague was saying here.

[00:18:28] Speaker 00:
Once you look at it, it's all the same government conduct.

[00:18:32] Speaker 00:
It's OFACs blocking.

[00:18:33] Speaker 00:
It's the alleged failure to get the funds back.

[00:18:37] Speaker 00:
And it's the license to the state of New York that allowed the funds to achieve.

[00:18:43] Speaker 00:
I mean, that's the conduct.

[00:18:44] Speaker 00:
And that's in both.

[00:18:46] Speaker 00:
That's in both cases.

[00:18:48] Speaker 00:
And under Tehono, under this court's precedent, you have to look at the operative facts.

[00:18:53] Speaker 00:
The relief doesn't matter.

[00:18:54] Speaker 00:
We can call it a writ.

[00:18:55] Speaker 00:
We can say it's seeking money damages.

[00:18:57] Speaker 00:
That doesn't matter.

[00:18:59] Speaker 00:
If it's labeled due process, or takings, or contract, or tort, that's also irrelevant.

[00:19:04] Speaker 00:
I mean, that's Supreme Court precedent.

[00:19:05] Speaker 00:
So this is not a difficult case on 1500.

[00:19:07] Speaker 00:
And here, we actually have the rare situation where there's actually a collateral estoppel issue with respect to 1500.

[00:19:15] Speaker 00:
And I think part of that is, as Your Honor was pointing out, Askin could have waited, I think, 22 days once the dismissal took effect and actually filed the complaint in the Court of Federal Claims.

[00:19:31] Speaker 00:
And at that point, there would be no 1500 bar.

[00:19:33] Speaker 00:
There would still be a mootness issue and the other issues that we pointed out, but there wouldn't be a fit.

[00:19:39] Speaker 04:
How would you define the issue that was actually litigated in Ascan 1 so that we can decide whether that's the same issue going on in Ascan?

[00:19:52] Speaker 00:
Sure.

[00:19:53] Speaker 00:
It would be that when a court determines that the core actions in both cases are the blocking, the failure to return the funds, and issuing... Well, it's simpler than that.

[00:20:07] Speaker 02:
The decision in Ask Ambon is that the complaint was barred by 1,500.

[00:20:13] Speaker 02:
And if the second complaint is nearly identical to the first one, this collateral estoppel end of issue, right?

[00:20:19] Speaker 00:
Right.

[00:20:20] Speaker 00:
But you have to look at the operative facts.

[00:20:22] Speaker 02:
That's what I was trying to get.

[00:20:23] Speaker 02:
You only have to look at the operative facts as between the two Court of Federal Claims complaints, not comparing it to the district court, because collateral estoppel says you don't need to relitigate the issue.

[00:20:32] Speaker 02:
It's already been decided.

[00:20:35] Speaker 04:
But for issue preclusion, would we have to figure out and compare what are the operative facts of ASCAN 1 complaint versus the operative facts of the ASCAN 2 complaint and figure out whether those are identical?

[00:20:52] Speaker 00:
We think that you have to look at what would be material.

[00:20:55] Speaker 00:
And so there was a 1,500 adjudication based upon the complaint.

[00:21:02] Speaker 02:
The complaints are basically the same, except one mentions due process.

[00:21:05] Speaker 00:
Exactly, Your Honor.

[00:21:06] Speaker 00:
There's no.

[00:21:08] Speaker 00:
Under my colleague's theory of how collateral estoppel would work, they could just keep dismissing and refiling over and over again, even though there's already been a 1,500 adjudication based upon the same set of facts.

[00:21:24] Speaker 00:
I mean, you can't just change one non-material label to something, and that precludes issue preclusion.

[00:21:32] Speaker 00:
But even if we didn't get there, it's just an obvious 1,500 problem sort of regardless on a de novo slate.

[00:21:42] Speaker 00:
So however it's sliced, I think here there would have to be issue preclusion.

[00:21:50] Speaker 00:
But even if that wasn't the case, there's still just

[00:21:52] Speaker 00:
It's barred by 1,500.

[00:21:54] Speaker 00:
And this isn't a closed case.

[00:21:57] Speaker 03:
The issue of preclusion is an affirmative defense.

[00:21:59] Speaker 03:
We can reach the second ground if we want.

[00:22:02] Speaker 03:
I mean, here, if we choose, we can decide there is issue preclusion, case is over.

[00:22:09] Speaker 03:
Or we can say we lied that issue up as an affirmative defense.

[00:22:12] Speaker 03:
It's not jurisdictional.

[00:22:14] Speaker 03:
And we can take the second question, which is whether or not the second complaint

[00:22:19] Speaker 03:
is barred by 1,500.

[00:22:21] Speaker 03:
It's the second complaint that's in front of us in the first place.

[00:22:25] Speaker 03:
The first complaint, as we pointed out earlier, never got appealed.

[00:22:29] Speaker 00:
That is correct, Your Honor.

[00:22:30] Speaker 00:
It did not get appealed.

[00:22:31] Speaker 00:
The district court complaint did not get appealed either.

[00:22:34] Speaker 00:
And so just speaking a little bit to about the unfairness here, again, they could have waited 22 days and filed the Court of Federal Claims complaint.

[00:22:45] Speaker 03:
Well, if they'd done that, then they wouldn't have had a 1,500 complaint.

[00:22:48] Speaker 03:
They would have had a issue preclusion complaint.

[00:22:51] Speaker 00:
Correct.

[00:22:51] Speaker 00:
But again, just, and again,

[00:22:54] Speaker 00:
I just want to briefly address, I mean, I agree with what you were saying, Your Honor, but also here as a third ground in just getting to sort of the unfairness issue that was raised here, Askin has gotten back its funds with interest.

[00:23:10] Speaker 00:
And so even if somehow they were able to get around issue preclusion and 1500,

[00:23:16] Speaker 00:
They have gotten the cases.

[00:23:19] Speaker 00:
The takings claim is moot because they've gotten the funds back with interest.

[00:23:22] Speaker 00:
There's been nothing in any of these briefs contesting the amount of interest that was insufficient here.

[00:23:29] Speaker 03:
And so there's basically arguing that the proximate cause of the failure of the whole company was the conduct here that withheld their funds for that period of time.

[00:23:39] Speaker 00:
But, Your Honor, I think, as you mentioned in the earlier colloquy,

[00:23:43] Speaker 00:
Mitchell and cases like General Motors, you can't get consequential damages here.

[00:23:50] Speaker 00:
And here, we're not even talking about something like a contract, where maybe when you focus on the property interest, there could possibly be some sort of additional recovery.

[00:24:00] Speaker 00:
It's a fund of money.

[00:24:02] Speaker 00:
And if you're talking about a temporary taking, which is what this would possibly be, even if we were able to get to the merits,

[00:24:09] Speaker 00:
It would just be fair rental value.

[00:24:11] Speaker 00:
And fair rental value for money would just be interest.

[00:24:15] Speaker 00:
And that's what they've gotten.

[00:24:16] Speaker 00:
And even under the OFAC regulations, they have to be paid, quote, commercially reasonable interest.

[00:24:22] Speaker 00:
And there's been no dispute that that's what took place here.

[00:24:26] Speaker 00:
And so really, however it's sliced, there's really no basis to reverse what the Court of Federal Claims did here.

[00:24:35] Speaker 00:
They were correct on all of the grounds

[00:24:38] Speaker 00:
for dismissal here.

[00:24:41] Speaker 02:
Anything further?

[00:24:42] Speaker 00:
If there's nothing further, I just ask that you affirm the decision of the Court of Federal Claims.

[00:24:48] Speaker 02:
Okay, thank you.

[00:24:49] Speaker 02:
Miss Taylor, do you have a minute?

[00:25:00] Speaker 01:
I would just ask the court to consider, please, the impact here.

[00:25:03] Speaker 01:
You do have the entire global trade community watching here to see a company that has done nothing nefarious whatsoever, that had the million dollars seized when the deal was canceled.

[00:25:15] Speaker 01:
There was nothing nefarious about the deal.

[00:25:17] Speaker 01:
It was simply canceled and returned where the money goes.

[00:25:20] Speaker 01:
There are only a few places in the world where the money, US dollars, can be cleared.

[00:25:24] Speaker 01:
Then the money is blocked.

[00:25:26] Speaker 01:
The client does everything possible that it can

[00:25:29] Speaker 01:
to find out what's going on.

[00:25:31] Speaker 01:
So it doesn't repeat this.

[00:25:32] Speaker 01:
Is there an SDN involved?

[00:25:35] Speaker 01:
So that they can continue to do business, convince their investors, convince the other companies involved, other business dealers continue to do business with us.

[00:25:46] Speaker 01:
But that wasn't possible.

[00:25:48] Speaker 01:
Everything shuts down.

[00:25:49] Speaker 01:
Your money was blocked by OFAC.

[00:25:52] Speaker 01:
Must be something nefarious.

[00:25:54] Speaker 01:
They try to find out.

[00:25:55] Speaker 01:
They engage multiple law firms, lots of money, due diligence.

[00:25:59] Speaker 01:
They do everything they possibly can.

[00:26:00] Speaker 01:
They file three petitions.

[00:26:01] Speaker 01:
Everyone is denied.

[00:26:02] Speaker 01:
They're not given an explanation.

[00:26:04] Speaker 01:
There is no SDN publicly listed.

[00:26:06] Speaker 01:
Usually the regulations require them to do such.

[00:26:09] Speaker 01:
They did not.

[00:26:10] Speaker 01:
So then the fourth petition filed almost a year later.

[00:26:14] Speaker 01:
Please issue a decision to go to the court.

[00:26:16] Speaker 01:
Please declaratory injunctive relief.

[00:26:19] Speaker 01:
Please force OFAC to tell us what's going on and issue this decision.

[00:26:22] Speaker 01:
Completely different facts, completely different evidence.

[00:26:26] Speaker 01:
It is not the same.

[00:26:27] Speaker 01:
The takings claim is different.

[00:26:28] Speaker 01:
It is from the 6th to 2016 all the way forward.

[00:26:32] Speaker 02:
Okay.

[00:26:34] Speaker 02:
Thank you.

[00:26:36] Speaker 02:
Thank you.

[00:26:36] Speaker 02:
Thank you, Mr. Yale.

[00:26:37] Speaker 02:
Case is submitted.