[00:00:00] Speaker 00: The first case is Tatra Rabin et al. [00:00:06] Speaker 00: versus the United States, 2022-15-59. [00:00:11] Speaker 00: Ms. [00:00:11] Speaker 00: Nathanson. [00:00:14] Speaker 00: Please proceed. [00:00:16] Speaker 04: Your Honors, we are here today to determine if the Tucker Act provides this court jurisdiction over a contract for educational services made by the government during an undercover law enforcement operation. [00:00:29] Speaker 00: Well, you just indicated it was a law enforcement agent activity. [00:00:36] Speaker 00: It wasn't a contract for renting a building, for example. [00:00:42] Speaker 00: It's a law enforcement activity. [00:00:44] Speaker 00: It's not proprietary. [00:00:47] Speaker 04: Well, it's a contract for educational services. [00:00:50] Speaker 04: There was a offer of admissions to university, which was accepted. [00:00:55] Speaker 04: by my clients. [00:00:56] Speaker 04: I was at an accredited university. [00:00:58] Speaker 04: My client was only told that it was a legitimate university that would be offering classes, and that's what my client anticipated, and that's what he paid tuition for. [00:01:07] Speaker 04: So on its face, this is a proprietary contract, and that's how it is determined. [00:01:15] Speaker 02: So for example, within the language of the sentence from Kanye that's been quoted, this is something that a private party could easily do. [00:01:24] Speaker 02: A real university could make this contract with a real potential student. [00:01:28] Speaker 02: And the fact that this is being done in a false pretenses way for law enforcement purposes doesn't change the nature of the contract. [00:01:37] Speaker 02: That's your view, I take it. [00:01:39] Speaker 04: Yes, exactly. [00:01:41] Speaker 04: And in our briefing, we analyzed the sovereign capacity doctrine. [00:01:46] Speaker 04: But we recognize that this court has never adopted the sovereign capacity doctrine. [00:01:50] Speaker 04: The Tucker Act already has the money-mandating requirement, barring jurisdiction from non-monetary government contracts. [00:01:58] Speaker 04: And illegal contracts are already unenforceable in this court. [00:02:01] Speaker 03: Nathan, let me ask you a question, please. [00:02:07] Speaker 03: You're urging us to reverse the decision [00:02:11] Speaker 03: of the court of federal claims and to remand the case to the court for further proceedings, correct? [00:02:17] Speaker 04: Yes, Your Honor. [00:02:18] Speaker 03: And as I understand it, you're asking for proceedings to proceed on the breach of contract claim, correct? [00:02:25] Speaker 05: Yes. [00:02:26] Speaker 03: Third point. [00:02:28] Speaker 03: I read in page 10, I think, of your reply brief [00:02:32] Speaker 03: You state that we have to assume for purposes of these proceedings that Mr. Ravi is innocent, had innocent intent, correct? [00:02:42] Speaker 03: Yes. [00:02:44] Speaker 03: But you concede at page 10 of your reply brief that if in fact he was willingly participating in a quote, pay to stay scheme, that he would not be able to cover it, right? [00:02:57] Speaker 04: Yes, it was at the time of formation of the contract. [00:03:00] Speaker 03: How would this issue, if we were to remand it on the contract claim, how would this issue of his state of mind be thrashed out in the Court of Federal Claims? [00:03:09] Speaker 03: Testimony, affidavits? [00:03:13] Speaker 04: Yes, testimony and affidavits. [00:03:15] Speaker 04: I think it's also a key factual question what he had knowledge of. [00:03:19] Speaker 04: Was he ever told that this was a [00:03:22] Speaker 04: fake university that would not be offering, or not even that it was a real university that he would not, that he would be in a pay to play scheme for, and he was not. [00:03:32] Speaker 04: But that's the factual question that we're asking to reverse or amend to the court. [00:03:36] Speaker 04: You know, if he had knowledge that this was an illegal contract, illegal contracts are already unenforceable in court. [00:03:43] Speaker 04: So that's how you determine that case, but we're asking to be reverse or amended so that factual issue [00:03:50] Speaker 04: that we have raised material facts in this field. [00:03:52] Speaker 03: That would have to be determined on remit. [00:03:54] Speaker 04: Yes. [00:03:54] Speaker 00: Yes, sir. [00:03:56] Speaker 00: So let me just ask you a housekeeping question. [00:03:59] Speaker 00: In the appendix, there are a lot of blacked out portions indicating that they're confidential. [00:04:05] Speaker 00: Can we assume that that which is not blacked out is not confidential? [00:04:11] Speaker 04: It is still submitted as a confidential [00:04:18] Speaker 04: appendix. [00:04:20] Speaker 00: That indicates that some of the material in it is confidential. [00:04:24] Speaker 00: And isn't that the act which is blacked out, the rest of it not being confidential? [00:04:31] Speaker 04: Yes, Your Honor. [00:04:31] Speaker 04: I would agree with that handling of it by this Court. [00:04:34] Speaker 03: So in other words, we can assume that anything that is not blacked out is not confidential, correct? [00:04:42] Speaker 04: I believe the Court should handle it that way. [00:04:47] Speaker 04: Since the Tucker Act already has the money-mandating requirement and illegal contracts are already [00:04:57] Speaker 04: this court may find that the sovereign capacity doctrine is unneeded. [00:05:01] Speaker 02: Well, why do you call this thing the sovereign capacity doctrine? [00:05:05] Speaker 02: When I search those terms on Westlaw, it doesn't exist in Supreme Court case law. [00:05:09] Speaker 02: That three-word phrase doesn't exist in any precedent of our court. [00:05:14] Speaker 02: There are, rather, some references to the word sovereign. [00:05:17] Speaker 02: This is not the sovereign acts doctrine, which is the Winstar doctrine. [00:05:23] Speaker 02: So this three-word phrase seems to have been [00:05:28] Speaker 02: given as a label to, uh, as if it were, um, some long standing doctrine with a understandable definition, um, which I don't really see. [00:05:43] Speaker 02: Congress said some things about it and Lumpker came in right behind it and Sanders talked about it and Judge Allegra's opinion and Stovall talks about it. [00:05:55] Speaker 02: Um, and, um, [00:05:57] Speaker 02: But the it here is just a set of cases, virtually, if not all of which, are about contracts, the subject matter of which is what would or couldn't or won't happen in a criminal proceeding, motivated by the idea that when there is such a contract, it's the criminal court that is to supply the remedies, not the court of federal claims, in the absence of some [00:06:25] Speaker 02: pretty clear provision in the contract. [00:06:28] Speaker 02: And we don't have that at all. [00:06:29] Speaker 02: Indeed, it would be a little hard to see how you have that when neither contracting party owns up to being the government. [00:06:37] Speaker 04: Well, I think you're exactly right. [00:06:39] Speaker 04: It doesn't clearly exist. [00:06:41] Speaker 04: And maybe I shouldn't have referred it to that way. [00:06:43] Speaker 04: But this sovereign versus proprietary analysis, it's not clear that the court even needs to make that. [00:06:52] Speaker 04: So that's what I'm gesturing. [00:06:54] Speaker 04: towards because many of the cases have to do with criminal settlements, plea bargains in criminal cases, or the civil analog of that, which is a settlement agreement between the government when it's bringing a civil enforcement action against a party, and that there's no monetary exchange in those contracts. [00:07:20] Speaker 04: And there's also already a court, a civil court, a criminal court involved, which is better suited to take jurisdiction over those contracts. [00:07:30] Speaker 02: Are you familiar with the Silva case? [00:07:33] Speaker 02: Yes. [00:07:34] Speaker 02: Yeah, so obviously that's not a precedent at our court. [00:07:38] Speaker 02: But nevertheless, can you talk a little bit about that case? [00:07:42] Speaker 02: I know that the opinion in the claims court is a slightly complicated [00:07:47] Speaker 02: situation, and among the things that the claims court opinions, as is referred to, two remedies, one I think in habeas, one under criminal rule 41, for the breach of that assumed contract there. [00:08:02] Speaker 02: But that wasn't quite a contract about what would happen in a criminal proceeding. [00:08:12] Speaker 04: What I find important about SOBA is that it was a facially illegal contract. [00:08:17] Speaker 04: So Silva is a contract where Silva knows he's illegally importing birds, and he makes a contract to breed birds. [00:08:26] Speaker 04: And breeding illegally imported birds is also illegal. [00:08:28] Speaker 04: So when he makes that contract, he knows he's contracting for something illegal. [00:08:34] Speaker 04: And then he later pleads guilty to illegal importation and conspiracy. [00:08:39] Speaker 04: But yes, when the court's looking at that, they consider that there was a criminal investigation and prosecution of Mr. Soba, and that there was a compatible remedy available in a criminal proceeding for him to pursue what would be the contract issue. [00:08:56] Speaker 04: So that goes into their reasoning. [00:09:00] Speaker 04: While there's no criminal case or civil case here for Robbie, [00:09:06] Speaker 04: He goes before the court here or he goes before the court nowhere? [00:09:11] Speaker 03: You were discussing with Judge Toronto the existence or non-existence of the so-called sovereign capacity doctrine. [00:09:22] Speaker 03: Let's assume for the moment that one would say the undercover operation here involving the University of Farmington, an operation paperclip, was something the government acting in its sovereign capacity. [00:09:37] Speaker 03: but what i understand you to say is that, okay, assume that's the case i can still, meaning your client, carve out of that this contract between the university and Mr. Avi. [00:09:51] Speaker 03: Is that correct? [00:09:53] Speaker 04: I agree that that's one way this court could define the situation. [00:09:57] Speaker 04: I also don't think that the contract was taken in a sovereign action of the government. [00:10:03] Speaker 04: I think that really goes beyond any of [00:10:05] Speaker 04: the cases that the lower court has considered before, because this wasn't a settlement agreement in a civil enforcement matter. [00:10:15] Speaker 04: This wasn't a plea bargain in a criminal matter. [00:10:17] Speaker 03: It was just a educational contract taken during the... How do you address the government's argument that, okay, the government never had the government [00:10:30] Speaker 03: agents, the people at the university, never had the intention of providing educational services. [00:10:38] Speaker 03: Whereas assuming Mr. Ravi wanted such services, the government said, there's no reading of the minds. [00:10:45] Speaker 03: What is your response to that? [00:10:47] Speaker 04: Yes, so of course, neutrality of intent is the first element of contract formation. [00:10:53] Speaker 04: To show neutrality intent, the plaintiff must show objective evidence, the existence of an offer and of typical acceptance. [00:11:01] Speaker 04: See Anderson and Seuss. [00:11:03] Speaker 04: This is a black letter contract law principle. [00:11:06] Speaker 04: Here we have the classic objective evidence, a written contract, a written offer, and acceptance of that in a documented tuition payment. [00:11:15] Speaker 04: And I can get into the sites of the offer of admission. [00:11:21] Speaker 02: Let's assume that on its face, [00:11:23] Speaker 02: You know, a third party bystander would look at this and say, this is an express contract. [00:11:30] Speaker 02: Absolutely clear. [00:11:30] Speaker 02: All the words coming out of the two parties' mouths are, if you pay me $12,000, then in the fall you'll get classes. [00:11:39] Speaker 02: How could that not be a contract? [00:11:41] Speaker 02: Is there either from the restatement or restatement of second of contracts or something? [00:11:47] Speaker 02: or caseload generally that would support the idea, which I take it to be the government's idea, that when one party has its fingers crossed behind its back, fully intending never to keep its side of the overt express bargain, that there's no mutual intent to contract. [00:12:12] Speaker 04: There is not. [00:12:14] Speaker 04: The government already has a different protection in this area, specifically for Tucker Act claims, which is the fifth element of authority. [00:12:26] Speaker 02: I assume that your position is that the agent, the particular agents, had [00:12:34] Speaker 02: authority from the very top, wherever that top is, to do exactly what they did, which is to pretend that they were entering into a commercial contract. [00:12:46] Speaker 04: Yes. [00:12:47] Speaker 04: There was express actual authority we plead, and also there would have been ratification as well, because from the top to the bottom, everyone knew what was going on with this. [00:12:55] Speaker 04: And there's the language repeatedly in the operation. [00:12:57] Speaker 02: The whole point of the project [00:12:59] Speaker 02: authorized from the top was, in fact, to pretend to have, in a convincing way, an offer of educational services for which they were going to collect money. [00:13:12] Speaker 04: Yes. [00:13:12] Speaker 04: And the authorization papers explicitly authorized establishing a proprietary corporation or business entity and operating them on a commercial basis. [00:13:22] Speaker 00: So you're into your bottle time. [00:13:23] Speaker 00: You can use it or save it. [00:13:26] Speaker 04: I will save it if there's no further questions. [00:13:29] Speaker 00: May it please the court? [00:13:49] Speaker 01: I'll start with Judge Toronto, your question about the verbiage sovereign capacity doctrine. [00:13:55] Speaker 01: I briefly tried to look through the cases to see the first instance I saw it mentioned. [00:13:58] Speaker 02: I did see it in Trudeau, which was a... When I did last night, that's the first time I saw that three-word combination, which is not us. [00:14:05] Speaker 01: It's not, right. [00:14:06] Speaker 01: But it was affirmed by this court, that decision, in a Rule 36. [00:14:08] Speaker 01: Right. [00:14:09] Speaker 02: But what we do is lots of affirmances on particular facts without... And that one, I don't remember the facts, but was that also [00:14:18] Speaker 02: a classic agreement about what would go on or would not go on in a criminal proceeding? [00:14:23] Speaker 01: That was a civil enforcement of a FTC agreement. [00:14:27] Speaker 01: Okay, so it was still submitted to civil instances. [00:14:30] Speaker 01: An interesting case might be Awad, where that was an allegation that the government had promised to provide passport documents [00:14:37] Speaker 02: uh... some types of citizenship papers for assisting in some terrorist uh... you know investigation in terms of government precedents supreme court or us uh... the labels are not important i just wanted to push back on the idea that by giving it [00:14:51] Speaker 02: this name, we were giving it a foundation and a stature and an established character that I think goes well beyond what is in cases that are precedent for us. [00:15:08] Speaker 01: So I think the two cases that this court would treat as binding would be, number one would be Kaniya, and the second would be Sanders. [00:15:16] Speaker 01: Right. [00:15:16] Speaker 02: So whether, you know, that... Those are all about the fact that these were agreements about what was going to go on in a criminal proceeding, either immunity or plea bargain or stuff like that, in which the criminal court [00:15:30] Speaker 02: uh... is presumed in the absence of special contrary language to be the only one to be dealing with uh... uh... that contract we don't have that. [00:15:44] Speaker 01: I don't have that but I think the line at Drew has been addressed in a variety of circumstances since then. [00:15:49] Speaker 01: The trial court has addressed it uh... you know Trudeau was affirmed, Silva was affirmed by this court granted those weren't published decisions [00:15:58] Speaker 01: In my mind, I would think that that's because the lines they were drawing were consistent with the lines that Kanians entered through with respect to how broadly the sovereign capacity doctrine covers. [00:16:09] Speaker 02: I assume you would take issue with Judge Olegra's extensive discussion about this in Stovall, which says the government has been taking this particular set of cases and expanding it to some general [00:16:26] Speaker 02: notion about actions taken in the service of some sovereign function are outside the Tucker Act. [00:16:34] Speaker 01: I think that's right, generally. [00:16:36] Speaker 01: I mean, it would depend, right? [00:16:38] Speaker 01: MSO in judgment is really saying that's actually wrong. [00:16:42] Speaker 01: I think that the line that Kaniya drew was between proprietary and sovereign actions, and I think that's a workable line. [00:16:48] Speaker 02: So why is this not a proprietary action? [00:16:50] Speaker 02: The government says, I want to sell you some education. [00:16:54] Speaker 02: Give me your money. [00:16:55] Speaker 02: They say, oh, we've got a deal. [00:16:56] Speaker 02: And the government takes the money. [00:16:59] Speaker 02: Could have been that this contract could easily have been from a real educational institution. [00:17:05] Speaker 02: There's nothing about that. [00:17:07] Speaker 02: It's just that underlying this pretense is a sovereign interest in law enforcement. [00:17:12] Speaker 02: I don't think we've ever gone that far. [00:17:16] Speaker 01: It's the most closely analogous case this court will find will be Silva, which is why we highlight it in our brief. [00:17:21] Speaker 01: But I think the fundamental question about how to understand the doctrine [00:17:25] Speaker 01: is it all comes down to government purpose. [00:17:28] Speaker 01: What purpose is the government doing the thing that you are alleging? [00:17:31] Speaker 02: What's the purpose of the government renting a building for its law enforcement operations? [00:17:38] Speaker 01: That would be, so that would fit under Bailey. [00:17:41] Speaker 01: You get the sovereign act, which is a government undercover law enforcement investigation. [00:17:44] Speaker 01: What Bailey says is even within that sovereign action with the government acting in a sovereign capacity, you can have a proprietary contract. [00:17:51] Speaker 01: Why is this not that? [00:17:53] Speaker 01: Because this wasn't the government's purpose to actually engage in the process of providing, you know, these, um, these individuals with an actual education for, you know, on the facts. [00:18:05] Speaker 02: We have to assume he didn't know that. [00:18:07] Speaker 02: Mr. Ravi. [00:18:09] Speaker 02: He thought he was, on the facts we have to assume, he thought he was [00:18:12] Speaker 02: paying thousands of dollars for classes he was about to take. [00:18:16] Speaker 01: So what I would say to that is with respect to the sovereign capacity doctrine, it's essentially agnostic to what the party on the other side thinks. [00:18:22] Speaker 01: It all comes down to what the government on the right side. [00:18:24] Speaker 02: That's if there is such a thing as a sovereign capacity doctrine that goes so far as to say it's all about purpose. [00:18:33] Speaker 02: And I just don't see that. [00:18:35] Speaker 02: And it's extremely troubling, right? [00:18:40] Speaker 02: The government gets to pretend that it's offering a service and collects money from, presumptively, an innocent and says, we keep the money. [00:18:50] Speaker 01: Can I address that? [00:18:52] Speaker 01: Please. [00:18:53] Speaker 01: I understand that general concern about the fundamental rightness of a position the government's taking. [00:18:57] Speaker 01: What I will say is the trial court's holding here was exceedingly narrow. [00:19:01] Speaker 01: under, and I'll use the shorthand whether we agree with the verbiage or not, that the Sovereign Capacity Doctrine says for this kind of thing, you can't seek redress in the court of federal claims under a breach of contract theory under the Tucker Act. [00:19:13] Speaker 01: That's all it said. [00:19:14] Speaker 01: It was a very narrow holding. [00:19:15] Speaker 01: That doesn't mean there's not some right to redress somewhere else. [00:19:18] Speaker 01: Judge Taranto, you mentioned yourself there were cases under World War II. [00:19:22] Speaker 01: Can you answer my question? [00:19:23] Speaker 01: Yeah, in 1941, you go to district court and you say... [00:19:26] Speaker 02: I don't know. [00:19:27] Speaker 02: That's a criminal rule. [00:19:29] Speaker 02: There's no criminal proceeding. [00:19:31] Speaker 01: There was a case called Mantia. [00:19:33] Speaker 01: There was a case called Cardo, where actually Cardo might be a good decision. [00:19:37] Speaker 01: In the Ninth Circuit, we cited in our trial brief, where the individual was deported as a result of trying to get fake visa papers. [00:19:45] Speaker 01: And that was brought as a Rule 41 case, my understanding. [00:19:48] Speaker 00: Counsel, is it correct that they didn't attend classes? [00:19:53] Speaker 00: They didn't attend classes. [00:19:54] Speaker 00: Because he knew it was not a genuine contract for university services? [00:20:00] Speaker 01: Again, that was part of the operation. [00:20:02] Speaker 01: The average student participating in this university participated for 1.6 years. [00:20:07] Speaker 01: There was a reason why there was that long of a time lapse before the government actually began the process of arresting individuals. [00:20:13] Speaker 01: Because by that point, [00:20:15] Speaker 01: after a succession of tuition payments, which were collected on a quarterly basis. [00:20:19] Speaker 01: You had to know. [00:20:20] Speaker 01: You haven't gotten classes. [00:20:21] Speaker 01: You haven't gotten a schedule. [00:20:23] Speaker 01: You haven't gotten a transcript. [00:20:25] Speaker 01: But you've gotten CPT papers and F-1 visa papers. [00:20:27] Speaker 01: You must know by this point it was CPT. [00:20:29] Speaker 01: We sound like factual. [00:20:30] Speaker 01: Those are factual. [00:20:31] Speaker 02: Factual arguments that have not been adjudicated. [00:20:35] Speaker 02: uh... you'd be even on summary judgment and i guess the only reason i'm mentioning them judge toronto is because you asked that's yeah i know but there's a broader concern about you know well what if you know individuals who were truly unwitting were caught up in the operation but doesn't that suggest that in fact very very few people will be able to recover because if you're right in your suggestion [00:21:03] Speaker 02: almost everybody here is not going to be innocent. [00:21:07] Speaker 01: Presumably, yes. [00:21:09] Speaker 01: But what I will say is that the sovereign capacity doctrine, the reason why we're pressing that argument is because that's what this court held in Kaniya. [00:21:16] Speaker 01: but it reinforces Sanders. [00:21:17] Speaker 01: And the progeny suggests that cases like this would be covered under that doctrine. [00:21:23] Speaker 01: And if the court is concerned about, I think, the equitable or consequentialist views of what might come down the line if we were to continue to draw that line, then do something like the court did in Awad, which is, look, there could be sympathetic circumstances where this kind of case might arise, but it's just not properly done. [00:21:39] Speaker 02: I think I'm probably repeating myself, but we are not in the position of having a clear established [00:21:46] Speaker 02: set of cases binding us that covered this and then asking, oh, is it fair? [00:21:53] Speaker 02: You are asking us to extend anything that we have actually held in a presidential opinion. [00:22:02] Speaker 02: And so put aside what the claims court has done, and the cases are quite mixed, like Stover on [00:22:07] Speaker 02: one side saying the government has been aggressively pushing this, that's wrong, and some other claims court judges picking up on some of the ideas in particular context. [00:22:18] Speaker 02: But in our effort to figure out how broad a principle there is that we should bless, it's not just that the policy consequences seem relevant to that. [00:22:36] Speaker 01: break Kaniya down to its bones. [00:22:38] Speaker 01: It drew a proprietary sovereign distinction line. [00:22:41] Speaker 01: We think all that this court would be doing is reaffirming that line. [00:22:45] Speaker 02: The trouble is that can mean different things. [00:22:48] Speaker 02: In your view, it means what is the purpose? [00:22:51] Speaker 02: I'm not quite sure. [00:22:52] Speaker 02: The government's purpose. [00:22:53] Speaker 02: The government's purpose. [00:22:54] Speaker 02: I'm not sure quite. [00:22:56] Speaker 02: You know what the boundaries of that are. [00:22:58] Speaker 02: But another way, and it can be, I think, maybe even the fairer way, to read the crucial sentence in Kanya is about the nature of the particular act. [00:23:09] Speaker 02: Is it one that a private party, that two private parties could engage in? [00:23:13] Speaker 02: And if you look at, and that's proprietary and not if it's sovereign, [00:23:17] Speaker 02: And if you look at that way, this falls on Mr. Wabi's side of the line, now on your side of the line, because private companies, universities, can offer educational services. [00:23:29] Speaker 01: Well, Judge Sharanta, just going back to the main point, I think what Kaniya said was, if it's always focused on the government, what was the government doing? [00:23:37] Speaker 01: If the government was acting in its sovereign capacity, [00:23:40] Speaker 01: Look, I understand it's not a totally satisfying answer to you, Judge Toronto, but again, that's the line we would draw. [00:23:47] Speaker 01: And what we would say, and I just say this to the rest of the panel, is adopting that line here isn't an extension of prior authority. [00:23:54] Speaker 03: Mr, you would agree that we have to assume here, for purposes of this case, that Mr. Ravi was innocent, correct? [00:24:04] Speaker 03: It's based on, we have to go based on what's in the complaint. [00:24:07] Speaker 03: Now, I realize the government disputes that point. [00:24:09] Speaker 03: Yes. [00:24:10] Speaker 03: Fair enough. [00:24:11] Speaker 03: But for purposes of deciding this case, we have to look at Mr. Ravi as being innocent, coming in and saying, I want educational services, correct? [00:24:20] Speaker 01: That's correct. [00:24:21] Speaker 01: You take the pleading on its face. [00:24:23] Speaker 01: What I will add is that the sovereign capacity doctrine, as I said to Judge Toronto, was agnostic to the majority. [00:24:28] Speaker 03: But why couldn't the, granted, my view [00:24:34] Speaker 03: I think is that yes, there is a sovereign capacity doctrine. [00:24:38] Speaker 03: The government acts, even though it hasn't been articulated, certainly the government acts in its sovereign capacity when it sets up an undercover operation like this. [00:24:48] Speaker 03: No question about that. [00:24:50] Speaker 03: But in that overarching context still, could you not have [00:24:55] Speaker 03: a valid contractual arrangement entered into under the basic laws of contract formation, restatement, williston on contracts, offer and acceptance. [00:25:05] Speaker 03: In taking an innocent person, Mr. Robbie comes in and set out on educational services. [00:25:11] Speaker 03: The folks at the University of Northampton [00:25:15] Speaker 03: was it a third grade university? [00:25:18] Speaker 03: Farmington. [00:25:20] Speaker 03: Farmington. [00:25:22] Speaker 03: They say, OK, here's your online services. [00:25:25] Speaker 03: Now isn't that, hasn't a contract been formed for the providing of educational services? [00:25:33] Speaker 01: I would say that's arguably a contract, but it's not a Tucker Act contract. [00:25:36] Speaker 01: Because what the sovereign capacity doctrine says is that when the government is acting in a sovereign capacity, [00:25:42] Speaker 01: And again, this is one example of that. [00:25:44] Speaker 01: It's not the government obligating itself to provide monetary damages, binding itself in a way that a normal party would do in a commercial transaction. [00:25:51] Speaker 01: The fundamental purpose of that agreement would be the government acting for the purpose of effectuating an undercover investigation. [00:25:59] Speaker 03: Let me ask you this. [00:26:00] Speaker 03: I realize the gentleman. [00:26:02] Speaker 03: Do you agree with the discussion that we had with Mr. Ravi's counsel that if we were to reverse and remand, the focus would have to be on whether there was a valid contract and what was the state of Mr. Ravi's mind, correct? [00:26:20] Speaker 01: Yeah, that would be one of the issues that would have to be addressed. [00:26:23] Speaker 03: Mr. Ravi acknowledges, if I had ill intent, I can't recover. [00:26:28] Speaker 03: He recognizes that. [00:26:30] Speaker 03: So you would have this flashing out of the facts. [00:26:34] Speaker 03: But my question is, what is the situation? [00:26:37] Speaker 03: I gather from the affidavits, it was the Weber affidavit and the other affidavit from ICE, that there were a few folks who the government acknowledges came forth innocently looking for educational services. [00:26:56] Speaker 03: What was your answer to them? [00:26:58] Speaker 03: They paid money. [00:26:59] Speaker 03: with no real intent and they can't get, what is the relief for them? [00:27:04] Speaker 01: So can I clarify one point? [00:27:06] Speaker 01: Yes. [00:27:06] Speaker 01: I don't know that people came forward necessarily innocently. [00:27:09] Speaker 01: All we know is that some people came in and said, you know, I don't want to do this. [00:27:15] Speaker 01: And what the government did in that instance factually was they [00:27:18] Speaker 03: referred them to actual... Is there anybody who, as far as you know, and you may not know the full parameters of the record, but was there anyone who came in, paid for services, didn't get the services and said, hey, wait a minute, I'm not getting what I paid for, give me my money back? [00:27:35] Speaker 01: Do you know if that situation arose? [00:27:37] Speaker 01: My understanding is there's no situation where that arose. [00:27:41] Speaker 01: There were instances where individuals came... So what happens is you apply first, [00:27:46] Speaker 01: and then you pay the tuition after the fact. [00:27:48] Speaker 01: There were people between- Can you answer that fact? [00:27:51] Speaker 01: After you had gotten accepted or whatever and affirmed that you want to participate, then you pay the tuition amount. [00:27:57] Speaker 03: So there's a succession of fees as you get- When you say affirmed you wanted to participate, did you affirm you wanted to participate for educational services or did you affirm you wanted to participate as part of a pay to stay scheme? [00:28:10] Speaker 01: It's usually the recruiter coming to the university saying, hey, my client needs these visa papers, and either they've paid the tuition or they are going to pay the tuition. [00:28:21] Speaker 01: And so that's sort of the trigger. [00:28:23] Speaker 01: But there were individuals that sort of fell between. [00:28:24] Speaker 01: They had applied. [00:28:26] Speaker 01: They got the acceptance. [00:28:27] Speaker 01: I'm using air quotes, acceptance papers. [00:28:29] Speaker 01: And then they came back to the university and said, I don't want to do this. [00:28:32] Speaker 01: And what happened at that point is agents directed them to the proper place. [00:28:36] Speaker 02: Some of this is online advertisements or something from the University of Farmington. [00:28:43] Speaker 02: And is there anything in those online, or not online, statements from the University of Farmington that say anything about your money is refundable if classes are not available? [00:28:59] Speaker 01: I'm not aware. [00:29:01] Speaker 01: I'm not aware of that verbiage being used. [00:29:04] Speaker 01: I can see why that might be helpful. [00:29:07] Speaker 01: I don't know that it was used here. [00:29:09] Speaker 01: Again, I haven't scoured the website to know whether that language exists. [00:29:12] Speaker 01: My time is up. [00:29:13] Speaker 01: I don't know if there are any final questions. [00:29:15] Speaker 00: Do you have a closing comment? [00:29:16] Speaker 01: Yeah, we respectfully request the court affirm the judgment of the trial court. [00:29:21] Speaker 00: Thank you, Counsel. [00:29:35] Speaker 04: Your honors, the logic forwarded by the government would not allow a narrow holding. [00:29:45] Speaker 04: If this educational contract is found to be sovereign, the government could also rent a building and only in its head say, we're not going to pay this, and this is part of an undercover law enforcement operation, and advance the same exact argument that it's sovereign. [00:30:02] Speaker 03: I mean, Mr. L. would say that that's different. [00:30:04] Speaker 03: He would say, that's a contract for the building. [00:30:09] Speaker 03: as involving in the case for the prison. [00:30:12] Speaker 03: And that's something where under Kanya, the government steps off its sovereign throne and participates in the marketplace as any other individual or corporation would. [00:30:22] Speaker 03: So I think you would distinguish that. [00:30:25] Speaker 04: Well, from my study of the Farmington operation, the students acquired were kind of the background, much like a building. [00:30:32] Speaker 04: And recruiters were actually the criminal target. [00:30:34] Speaker 04: So that's why I don't think we can let only the government after the [00:30:38] Speaker 04: fill out what its sovereign purpose was. [00:30:40] Speaker 04: But it has to be a factual analysis. [00:30:44] Speaker 04: And we have to see when there's a contract for educational services, which would normally be a proprietary contract. [00:30:51] Speaker 04: That's where we start. [00:30:54] Speaker 04: Furthermore, on these factual issues around classes and attending classes, Robbie contacted the university multiple times asking where the classes were. [00:31:05] Speaker 04: He tried to transfer away from the university, and DHS would not block his transfer. [00:31:11] Speaker 04: And the affidavits we submitted showed that many students went through that. [00:31:15] Speaker 04: They tried to transfer once classes did not materialize, and the government had control over them at that time, and they did not let them transfer. [00:31:24] Speaker 02: What do you mean the government had control over them? [00:31:27] Speaker 04: So you cannot transfer from a university unless the university officials of your current school authorize that transfer. [00:31:34] Speaker 02: The government pretending to be the university had control? [00:31:36] Speaker 04: Yes. [00:31:38] Speaker 04: Once the students signed up for classes, they asked the school where the classes were again and again, and then many of them tried to transfer away and were blocked by the government. [00:31:49] Speaker 04: So they really were looking to take classes. [00:31:54] Speaker 04: The time has expired. [00:32:01] Speaker 04: Do you have a final thought? [00:32:10] Speaker 04: based on circumstances of which the contractors had no knowledge whatsoever in forming the contract. [00:32:16] Speaker 04: Mr. Robbie and hundreds of other students thought they were signing up for a full education, including cat classes, and paid collectively $6 million of tuition. [00:32:26] Speaker 04: In speaking with dozens of Farmington students, they and their families are still financially struggling from this loss. [00:32:32] Speaker 00: They are still struggling. [00:32:33] Speaker 00: That is more than a final thought. [00:32:36] Speaker 00: You have your argument and the case is submitted. [00:32:38] Speaker 04: Okay, we ask that you reverse the room.