[00:00:00] Speaker 03: Our next case is the government of Greece, Hellenic Air Force versus the United States, 2023-2174. [00:00:10] Speaker 03: Mr. Collin, if you were ready. [00:00:14] Speaker 01: Good morning, Your Honors. [00:00:14] Speaker 01: My name is Tom Collin, and I have the pleasure of representing the Hellenic Air Force, commonly referred to as the HALF. [00:00:23] Speaker 01: Your Honors, may it please the Court. [00:00:25] Speaker 01: Your Honors, the HALF. [00:00:28] Speaker 01: Appeals and seeps. [00:00:29] Speaker 03: You're not going to give a half argument. [00:00:32] Speaker 01: The Hellenic Air Force, Your Honor. [00:00:34] Speaker 03: We'll call it half. [00:00:36] Speaker 01: Your Hellenic Air Force, Your Honor, seeks review and appeals of the decision by the federal district courts, which found that half's complaint for breach of contract under a foreign military purchase agreement was untimely and thus divested [00:00:55] Speaker 01: the district court of any type of claims court of subject matter jurisdiction. [00:01:05] Speaker 04: Your Honor, the Atlantic Air Force takes exception to that based on the fact that... You're not arguing that the contract wasn't closed more than six years before the filing of the complaint, right? [00:01:20] Speaker 01: in answering that question with regards to the complaint. [00:01:24] Speaker 01: The word closed has a lot of two meanings in my opinion and I think that's where the confusion happened in this case. [00:01:31] Speaker 01: Closed means supply services complete. [00:01:35] Speaker 01: We did our part. [00:01:37] Speaker 01: And you see some emails saying, now the HAP doesn't agree with that at all, but at some point they're trying to say we closed, we got the service supplies complete. [00:01:46] Speaker 01: We've done our work over here. [00:01:47] Speaker 01: Now the next step [00:01:49] Speaker 01: which the government complete. [00:01:51] Speaker 04: I'm confused. [00:01:52] Speaker 04: In 2011, you filed a new SDR, which recognized a certificate for closure has been issued, right? [00:02:02] Speaker 04: It's been closed. [00:02:04] Speaker 04: That was more than six years before the file. [00:02:08] Speaker 01: You're going to have to. [00:02:09] Speaker 01: I'm a little confused if you're talking about closure with regards to when the government told ROI that they were closing their case or when they were telling the Hellenic Air Force, as the court's aware, there's two different contracts going on in here. [00:02:26] Speaker 01: The half is given money to the government and they sign a contract over there and then the government signs a contract with ROI. [00:02:35] Speaker 01: And so when they say close, I'm not sure when the government closed. [00:02:39] Speaker 01: It looked to me like there was a letter with the government was arguing in about 2009, where they're trying to tell the half, we've closed, and there's a reference number. [00:02:51] Speaker 01: And that may be where the court [00:02:56] Speaker 01: there's different reference numbers in there and it seems to me that that's what the letter is telling the Hellenic Air Force is that we've closed with [00:03:07] Speaker 03: Recon optical now we're going to work on your things, so I'm a little confused on well The issue was is when the climate accrued right that's correct or contract law certainly and And you knew before six six-year period that you weren't going to get the books Well we knew we weren't going to [00:03:32] Speaker 01: We're going to get functionally working cameras if that's what the court is talking about. [00:03:35] Speaker 01: But then you now move into the reconciliation phase. [00:03:39] Speaker 01: And they sit down, and there's a complete in the, it makes it easier now because it all went online to the ESAM. [00:03:45] Speaker 01: And you can get the manual, and you can see a whole appendix, a whole section on how you're supposed to properly. [00:03:51] Speaker 04: OK, but look, you can't file a claim more than six years after your contract with the government was closed, right? [00:04:05] Speaker 01: If we knew what the fixed liability with regards to that was, I would... Well, if we knew about the closure. [00:04:13] Speaker 04: You knew about the closure of the contract with the U.S. [00:04:16] Speaker 04: government in 2011. [00:04:18] Speaker 04: You said it in this new SDR that you filed. [00:04:25] Speaker 04: You said that our contract with the government has been [00:04:31] Speaker 01: With regards to close, I don't know what the court's referring to with regards to silence. [00:04:36] Speaker 04: It says the certificate of closure for the FMS case has been issued. [00:04:41] Speaker 04: That's a JA87. [00:04:48] Speaker 01: And the closure is in relationships to what? [00:04:53] Speaker 01: So 2011, that what the court's reading there, is that in the closure to the recon optical, or are they saying closure with regards to? [00:05:01] Speaker 01: Your contract that you're now suing on had been closed. [00:05:06] Speaker 01: And Your Honor, again, with regards to that, and I don't want to play games or dance, there's a more than closed is saying we're not getting your supply services. [00:05:16] Speaker 01: We're not getting you your stuff. [00:05:18] Speaker 01: Now the next, and by the way, there's tons of inhibitors. [00:05:22] Speaker 04: It can't be closed if there are any outstanding claims, right? [00:05:27] Speaker 01: It cannot be closed if there's SDRs. [00:05:30] Speaker 01: And there's a lot of inhibitors, which you can tell from Major General. [00:05:34] Speaker 04: So once it's closed, you can't file [00:05:39] Speaker 04: unless you asked to reopen it, which you didn't do. [00:05:42] Speaker 01: With regards to the SDRs, that would be true also. [00:05:48] Speaker 01: But I don't see any evidence that the government has brought forward to show that the other SDRs that we had out there were resolved. [00:05:56] Speaker 01: I went to court, snowed Greece. [00:05:58] Speaker 01: The Hellenic Air Force never got cameras. [00:06:01] Speaker 01: Title never passed. [00:06:03] Speaker 01: From day one, these cameras [00:06:06] Speaker 01: didn't work they were overweight there was all you can claim from the generals letter that was a form fit and function contract the cameras have never worked title has never passed they that's a breach of contract right not a question of when did your claim prove i'm confused on that that question well you're telling us about all these things that [00:06:50] Speaker 02: And why didn't it accrue when the government in April 2011 transmitted that notice to you saying that your contract, the QBM contract, has been closed? [00:07:04] Speaker 01: That is just, we're not giving you your articles. [00:07:09] Speaker 01: We're not going to give you the cameras. [00:07:10] Speaker 01: We're not going to work on it anymore. [00:07:14] Speaker 01: And the next step would be to reconcile. [00:07:16] Speaker 01: You come to these meetings, there's a whole thing on the way that the case is supposed to be resolved for case closure. [00:07:23] Speaker 01: And that's where the half, or the Hellenic Air Force, makes the, at that point they're waiting. [00:07:31] Speaker 01: When are we going to reconcile this? [00:07:32] Speaker 02: And the government- I guess your position is when the contracts, when the government tells you this contract is done and we're not looking at it ever again, [00:07:44] Speaker 02: In your view, that's really more just an opening negotiation position, where there's now going to be a round of negotiation that takes place before a claim actually accrues? [00:07:56] Speaker 01: Correct, Your Honor. [00:07:58] Speaker 01: At that point, and there's lots of other materials that they work with with the government. [00:08:05] Speaker 01: Other things, you can do excessive defense articles. [00:08:07] Speaker 01: You can do non-repayable loans. [00:08:09] Speaker 01: There's all these other programs that they work with. [00:08:12] Speaker 01: They sit down, because they promised that they would protect the half's interest, just as they would protect their own. [00:08:20] Speaker 01: So now they've got to come face, and it's a reckoning. [00:08:24] Speaker 04: When does the claim accrue, in your view? [00:08:26] Speaker 01: When? [00:08:26] Speaker 04: When does the claim accrue? [00:08:28] Speaker 04: What causes it to accrue? [00:08:30] Speaker 01: When Vice Admiral Rixie writes back to the half and says, listen, we're done talking to you. [00:08:37] Speaker 01: We're not talking to you anymore. [00:08:40] Speaker 01: It's not reopened. [00:08:40] Speaker 01: That's the phrase. [00:08:42] Speaker 01: That's what we believe. [00:08:43] Speaker 01: Now, they're not giving us credit for any of these line items. [00:08:46] Speaker 01: They're not doing anything. [00:08:47] Speaker 01: They don't even. [00:08:47] Speaker 04: So it's not when the contract is closed. [00:08:49] Speaker 04: It's when they stop talking to you? [00:08:51] Speaker 01: With regards to close, it's when we knew there's a, they Xcode that. [00:08:56] Speaker 01: Xcode is supply services. [00:08:58] Speaker 01: And they put that on a portal. [00:09:00] Speaker 01: And then when it goes, now that's, in my understanding, that's the stuff. [00:09:05] Speaker 01: That's the articles. [00:09:07] Speaker 01: code, when it goes F3, that says now we're completely closed. [00:09:12] Speaker 01: And that's when the claim should accrue, is when now they know they're not getting any money, any credit, anything from the United States government. [00:09:23] Speaker 01: that they've skipped, the United States government just bypasses completely the reconciliation process and gave somebody some authority to put that F3 or put that F code. [00:09:34] Speaker 01: Now the case. [00:09:35] Speaker 01: Now when Bruce discovers that, writes to the government to say, listen, let's sit down and talk about this here. [00:09:43] Speaker 01: And they point out, I think it's Appendix 141, the general [00:09:51] Speaker 01: this plethora of mistakes that should have never even been service complete. [00:09:56] Speaker 01: But then he goes on to ask them, let's sit down and talk about this. [00:10:01] Speaker 01: They write back. [00:10:03] Speaker 01: You see the general, Rich, he says, we're not going to reopen or revisit. [00:10:06] Speaker 01: They never opened or visited in the first place with regards to that reconciliation part for not protecting their interests. [00:10:18] Speaker 01: So that's [00:10:20] Speaker 01: where we believe the breach occurs that we know we're not getting a refund. [00:10:26] Speaker 01: We're not getting anything at that point. [00:10:35] Speaker 01: With regard to the accrual suspension, if the court were to find that somehow the breach occurred prior to 2013, the next step [00:10:49] Speaker 01: or the position of the half would be, look, we had meetings. [00:10:53] Speaker 01: First off, you skipped the entire regulatory proceedings on how to close the case. [00:10:59] Speaker 01: You just skipped it. [00:11:00] Speaker 01: You didn't do it. [00:11:01] Speaker 01: You oversaw it. [00:11:02] Speaker 01: The second thing is there's meetings that they're having in 2010, where you can see from that exhibit, with meetings that they're telling the half, hey, this is what, or the Hellenic Air Force, this is what you [00:11:13] Speaker 01: need to do. [00:11:15] Speaker 01: Submit these SDRs in 2010. [00:11:17] Speaker 01: You also see an exhibit from Master Sergeant Aspya, I think I'm saying that right, where she's writing back in 2011 saying, look, this ain't right. [00:11:32] Speaker 01: You guys, these SDRs, you've got them wrong. [00:11:36] Speaker 01: And in fact, she says, are you even writing to the right person? [00:11:38] Speaker 01: Because this makes zero sense whatsoever. [00:11:44] Speaker 01: So we would believe that we have to use a reasonableness component on the accrual suspension. [00:11:50] Speaker 01: And though they did send a billing statement that was stacked and skipped the entire regulatory process, sent a billing statement that I don't think said F3 on there. [00:12:00] Speaker 02: It may have said X. [00:12:24] Speaker 02: with with regards it does your honor [00:12:48] Speaker 01: Sure. [00:12:50] Speaker 01: And, Your Honor, with regards to that, they're not showing that on their, the half is not showing that on the script. [00:12:58] Speaker 01: They don't know that that's been entered in to the system with regards to this F3 here. [00:13:07] Speaker 02: Who wrote that designation, F3? [00:13:11] Speaker 01: I'm not sure, Your Honor. [00:13:34] Speaker 03: Well into your huddle time, I assume you want to save it. [00:13:38] Speaker 01: Yeah, I'm sorry, Your Honor. [00:13:40] Speaker 03: Thank you. [00:13:42] Speaker 03: Ms. [00:13:42] Speaker 03: Forman-Cover. [00:14:00] Speaker 00: Good morning. [00:14:00] Speaker 00: May it please the court? [00:14:02] Speaker 00: The trial court correctly dismissed this case as barred by the statute of limitations, and this court should affirm. [00:14:09] Speaker 00: The United States government told the government of Greece in writing, first in 2004, when the red team identified the issues with the cameras, and then again in 2008, that they were closing out the contract with Recon Optical and that they were terminating the one outstanding Klin and returning that money to Greece at their request. [00:14:32] Speaker 00: a second time in 2008 that they were sending the LOA itself out for closure and to submit any supply discrepancy reports as soon as possible in 2000. [00:14:44] Speaker 02: Do you rely on those dates as when the claim accrued? [00:14:48] Speaker 02: I would think it's only when they announced the QPM contract was actually closed that the claim would accrue. [00:14:58] Speaker 00: I think it doesn't really matter because at the latest it would be in 2011 and that's also more than six years before the filing of the complaint. [00:15:05] Speaker 00: I think arguably it could have accrued for the cameras themselves as early as 2004. [00:15:11] Speaker 00: Certainly in terms of the question of whether or not the United States was going to go after Recon Optical, that would be in 2008, because that's when we notified them in writing that that contract was going to be closed. [00:15:25] Speaker 00: But I would say certainly at the latest, and this was also the comment made by the trial court judge, that whether it's those 2008 dates or as late as 2011, that is well before October 2013, which is the critical date in this case. [00:15:41] Speaker 00: I think the trial court did not pin down an exact accrual date. [00:15:45] Speaker 00: And I don't think this court has to either in order to affirm, because the sort of universal plausible dates are all before more than six years out from the filing of the complaint. [00:15:58] Speaker 00: And then in 2011, as the court noted, there was both the document from the United States to Greece denoting that the QMB was in case closure [00:16:10] Speaker 00: And then, as discussed this morning, also a document from Greece to the United States identifying their understanding that the contract was closed. [00:16:20] Speaker 03: Trial court said as late as July 29, 2009, all the events had occurred which fixed the alleged liability. [00:16:31] Speaker 00: That's correct. [00:16:33] Speaker 00: And we would agree with that. [00:16:34] Speaker 00: But I think later in the decision, he also goes on to say that in any event, whether it accrued in 2008 or, quote, as late as 2011, plaintiff's claim is untimely. [00:16:47] Speaker 00: So whichever of the universe of dates, it would be before October 2013. [00:16:59] Speaker 00: court has no other questions, we would ask that the court affirm. [00:17:02] Speaker 03: We will allow you to surrender 12 minutes if you wish. [00:17:07] Speaker 03: Thank you. [00:17:08] Speaker 03: Mr. Collin has some rebuttal time. [00:17:11] Speaker 03: We'll give you two minutes. [00:17:13] Speaker 03: There isn't a lot to rebut time-wise. [00:17:18] Speaker 01: You know with regards to rebuttal I think the real issue comes down to when we fix liability is not only When the case closures a lot we've got three closures that are going on but the issue is when it's been undisputed at least the way I'm reading the brief that the [00:17:34] Speaker 01: The government owed Greece a duty to protect their interests, and they would protect those just the same as they would go get their own. [00:17:40] Speaker 01: That's in the LOA, and you also see it in the SAMs and in the regulations. [00:17:44] Speaker 01: And I think the issue really comes down to when the United States said, [00:17:48] Speaker 01: We gave you our word that we were going to protect your interests, and we're not protecting your interests. [00:17:54] Speaker 01: We're giving you zero. [00:17:55] Speaker 01: And that's where the cause of action, that's where the fixed liability, that's when they knew that the United States was no longer, and I'll use paraphrase, having their back and going to protect their interests is when the half chose that they needed to proceed with a judicial intervention. [00:18:13] Speaker 01: And we would ask this court, [00:18:15] Speaker 01: If there's no further questions, we've asked this court to reverse the court of claims decision and also probably remand because there's still some other outstanding issues that weren't addressed by the court. [00:18:26] Speaker 01: Thank you for your time. [00:18:27] Speaker 01: It's been a pleasure. [00:18:28] Speaker 03: Thank you, counsel. [00:18:29] Speaker 03: The case is submitted.