[00:00:00] Speaker 00: Our next case is Jacobson versus United States, 24-1990. [00:00:03] Speaker 00: Mr. You set aside three minutes of your time for rebuttal, correct? [00:00:13] Speaker 00: Yes, Your Honor. [00:00:13] Speaker 00: Okay. [00:00:14] Speaker 00: We're ready for yours. [00:00:16] Speaker 02: May it please the Court, Jeffrey Vesta representing Ms. [00:00:20] Speaker 02: Jacobson, plaintiff of felon in this case. [00:00:23] Speaker 02: I'd like to propose a simple hypothetical, simply to try to clarify the issues. [00:00:27] Speaker 02: Let's suppose we have a money-mandating statute. [00:00:32] Speaker 02: And we know it's a money-mandating statute because this court has reviewed it and considered it and made a decision exactly on the point. [00:00:42] Speaker 02: Congress then, later, passes a statute that says what 4208 says. [00:00:49] Speaker 02: This is what? [00:00:50] Speaker 02: That says no court shall have jurisdiction to review any of this. [00:00:56] Speaker 02: And let's further suppose that this money-mandating statute is of the kind that gives one a Fifth Amendment protected property interest. [00:01:04] Speaker 02: I would think that most money-mandating statutes do that, but it's possible they don't. [00:01:10] Speaker 02: The question here is, in the initial case where this court found money-mandating, [00:01:18] Speaker 02: There's no question about jurisdiction, right? [00:01:20] Speaker 02: Court wouldn't have issued its order. [00:01:23] Speaker 02: So now Congress comes along and says, no, court can review this. [00:01:29] Speaker 02: Right, the court's constrict jurisdiction of the statutory claims, right? [00:01:32] Speaker 02: Correct. [00:01:33] Speaker 02: You agree with that, right? [00:01:35] Speaker 02: Oh, yeah, absolutely. [00:01:36] Speaker 02: Yes, as a general principle. [00:01:40] Speaker 02: Subject, of course, to Boumediene. [00:01:43] Speaker 02: And so the question here is not whether Congress can do that, whether it violates the due process. [00:01:49] Speaker 02: So that's not before the court. [00:01:51] Speaker 02: Well, that's not a claim for the court of federal claims anyway. [00:01:54] Speaker 02: No, no, no. [00:01:56] Speaker 02: Let me finish the hypothetical. [00:01:58] Speaker 02: Somebody now brings a claim under the money-mandating statute, and the government comes in and says, no, no, there's no jurisdiction here. [00:02:08] Speaker 02: The question is, is the court going to then apply a different [00:02:14] Speaker 02: jurisdictional analysis than it did in Fisher solely because in my hypothesis. [00:02:23] Speaker 02: I understand. [00:02:23] Speaker 02: Why wouldn't it? [00:02:24] Speaker 02: If the Congress comes in and says, look, we've got this whole host of claims out here challenging an executive branch decision [00:02:34] Speaker 02: that the federal circuit has said can be challenged in the court of federal claims. [00:02:39] Speaker 02: And they say, we don't like that. [00:02:40] Speaker 02: We don't want them challenged in the court of federal claims. [00:02:43] Speaker 02: And they say, none of those decisions by this executive branch official can be challenged in the court of federal claims. [00:02:50] Speaker 02: If they say that, [00:02:52] Speaker 02: then that decision can't be challenged in the Court of Federal Claims, whether or not it's a money-mandating statute, right? [00:02:57] Speaker 02: Well, I want to make sure it's no court. [00:03:00] Speaker 02: It's not just the Court of Federal Claims, because that might add something. [00:03:03] Speaker 02: So we'll get there. [00:03:04] Speaker 02: You agree that if Congress came in and said, the Court of Federal Claims cannot hear challenges to the attorney general's decisions under this statute, then the Court of Federal Claims would lack jurisdiction. [00:03:15] Speaker 02: If it specifically said the court of federal claims? [00:03:18] Speaker 02: I mean, that's a different issue than... I'm asking you hypothetical. [00:03:21] Speaker 02: Yeah, I think that's probably right. [00:03:25] Speaker 02: Well, how can it not be right? [00:03:27] Speaker 02: You started with agreeing that Congress can remove jurisdiction strip from courts for statutory claims. [00:03:34] Speaker 02: We're not talking about constitutional claims. [00:03:35] Speaker 02: We're talking about statutory claims. [00:03:37] Speaker 02: So if the Congress says, [00:03:39] Speaker 02: The Court of Federal Claims can't hear the statutory claim, even if under its other jurisdictional statutes it could. [00:03:45] Speaker 02: And it can't hear it, right? [00:03:47] Speaker 02: What difference does it make if Congress decides it not only doesn't want the Court of Federal Claims to hear it, it doesn't want district courts to hear it under APA actions? [00:03:58] Speaker 02: And so it says no courts can hear this claim. [00:04:01] Speaker 02: Because they don't want to go through step by step and say, well, the Court of Federal Claims can't hear it under the Tucker Act. [00:04:06] Speaker 02: The district courts can't hear it under the APA. [00:04:09] Speaker 02: The district courts can't hear it under some other potential jurisdiction provision. [00:04:14] Speaker 02: They say no courts shall have jurisdiction. [00:04:18] Speaker 02: That's the key thing. [00:04:20] Speaker 02: So no courts in this country under the statute has jurisdiction to review the attorney general's determination under the statute. [00:04:28] Speaker 02: Well, then you would have to find a court that would be able to decide the issue of whether due process will have Congress to do that. [00:04:35] Speaker 02: Because the law is absolutely- The Court of Federal Claims is certainly not that court. [00:04:40] Speaker 02: Oh, no. [00:04:40] Speaker 02: I'm sorry. [00:04:42] Speaker 01: Supposing Congress never passed the act. [00:04:47] Speaker 02: Which one? [00:04:48] Speaker 01: The original money-mandating statute for the- The Financial Institutions Anti-Fraud Enforcement Act. [00:04:53] Speaker 01: They never passed it. [00:04:55] Speaker 01: Would your client have any rights to monetary compensation? [00:04:59] Speaker 01: No. [00:04:59] Speaker 02: I mean, her rights depend entirely on what FIA says. [00:05:06] Speaker 01: OK. [00:05:07] Speaker 01: So in doing that, they limited any rights. [00:05:12] Speaker 01: Do you agree with that? [00:05:13] Speaker 02: Limited in what sense, Your Honor? [00:05:14] Speaker 01: They said no court has jurisdiction to determine. [00:05:17] Speaker 02: I am not arguing that they didn't intend to do that. [00:05:21] Speaker 02: I suspect that they didn't think about this issue, but it doesn't matter. [00:05:25] Speaker 02: I think they clearly thought about this issue when they said no courts can review the attorney general's decision. [00:05:30] Speaker 02: They meant it to be entirely within the discretion of the attorney general. [00:05:36] Speaker 02: Do you disagree? [00:05:37] Speaker 02: I don't disagree. [00:05:40] Speaker 01: I agree. [00:05:40] Speaker 01: Congress intended to keep this court from hearing this case. [00:05:44] Speaker 01: In order for your client to have rights, they have to act solely under a congressional statute which strips her of those rights. [00:05:54] Speaker 01: I wouldn't. [00:05:54] Speaker 02: I would sue under the money-managing statute. [00:05:57] Speaker 02: By hypothesis, the money- It doesn't matter if there's a money-managing statute or not. [00:06:01] Speaker 02: If Congress says, [00:06:03] Speaker 02: Despite a money-managing statute, the Court of Federal Claims lacks jurisdiction. [00:06:08] Speaker 02: They've taken away jurisdiction under the Tucker Act for that particular money-managing statute. [00:06:14] Speaker 02: But they didn't. [00:06:15] Speaker 02: They did not take away this court's Tucker Act jurisdiction. [00:06:19] Speaker 02: How can you read that otherwise when they say no court shall have jurisdiction? [00:06:24] Speaker 02: Your view, then, is that the Congress, if they want to take away Tucker Act jurisdiction, has to specify we're taking away Tucker Act jurisdiction. [00:06:31] Speaker 02: No. [00:06:33] Speaker 02: But in this case... No, no. [00:06:35] Speaker 02: I mean, so what difference is there if Congress says no court, and you agree the Court of Federal Claims is a court. [00:06:44] Speaker 02: Oh yeah. [00:06:45] Speaker 02: No court shall have jurisdiction. [00:06:46] Speaker 02: Yes. [00:06:48] Speaker 02: Versus the Court of Federal Claims shall not have jurisdiction. [00:06:50] Speaker 02: The reason is because if the underlying statute creates a Fifth Amendment right, [00:07:00] Speaker 02: Congress can't do that. [00:07:01] Speaker 02: No, no, no. [00:07:01] Speaker 02: We're not talking about constitutional stuff here. [00:07:04] Speaker 02: You did not plead this as a taking. [00:07:06] Speaker 02: No, no. [00:07:06] Speaker 02: I'm just talking about money. [00:07:08] Speaker 02: No. [00:07:08] Speaker 02: Don't talk to me about the Fifth Amendment. [00:07:10] Speaker 02: We're talking about a money-managing statute. [00:07:12] Speaker 02: Correct. [00:07:13] Speaker 02: Congress can determine that the Court of Federal Claims does not have jurisdiction, even if it is a money-managing statute, right? [00:07:20] Speaker 02: It could, and it did, because it said no court. [00:07:24] Speaker 02: But it didn't say that this was a Tucker Act jurisdiction. [00:07:27] Speaker 02: This is a dumb argument. [00:07:29] Speaker 02: Why would Congress have to say specific courts when it doesn't want any court? [00:07:36] Speaker 02: Why can't it just say, [00:07:37] Speaker 02: any court. [00:07:38] Speaker 00: It can say any court. [00:07:40] Speaker 02: And if it does that and violates the Constitution, then the person... Well, then you need to make that constitutional argument in a court that has jurisdiction to hear it. [00:07:50] Speaker 02: And that is not the Court of Federal Claims. [00:07:52] Speaker 00: What is your point that before the case can be heard, there's got to be a determination whether the statute is money mandated? [00:08:01] Speaker 00: Exactly. [00:08:03] Speaker 00: And they're subject matter jurisdiction? [00:08:08] Speaker 00: Or do you first have to have a determination whether or not there's subject matter jurisdiction, and then you get into whether the statute's money mandated? [00:08:20] Speaker 00: I'm not sure I understand the difference in this. [00:08:23] Speaker 00: We're trying to get to the bottom of your argument. [00:08:26] Speaker 00: It seems to me that that's [00:08:28] Speaker 00: the argument that you make, at least in your brief, and you seem to be making it now, that the decision of whether there's subject matter jurisdiction has to come first before you decide whether a statute's money-mandating or not? [00:08:44] Speaker 00: No. [00:08:45] Speaker 02: Is it the other way around, then? [00:08:49] Speaker 02: Well, this court wouldn't have jurisdiction if it wasn't money-mandating. [00:08:55] Speaker 02: Let's agree that this is a money-manning statute. [00:08:59] Speaker 02: Who cares? [00:09:00] Speaker 02: Congress has already said no court shall have jurisdiction. [00:09:02] Speaker 01: I understand. [00:09:03] Speaker 01: How can it be money-mandating if it says that you can't get money by suing? [00:09:10] Speaker 02: That's not an argument the government made. [00:09:18] Speaker 02: Let's look at Boumediene. [00:09:21] Speaker 02: Let's not look at Boumediene. [00:09:23] Speaker 02: Let's just assume this is money-mandating. [00:09:26] Speaker 02: And so normally it would be under the Tucker Act. [00:09:29] Speaker 02: What difference does it make? [00:09:31] Speaker 02: Congress has already said the court can't review that question. [00:09:35] Speaker 02: The Tucker Act, this court does have jurisdiction for Fifth Amendment taking claims, correct? [00:09:40] Speaker 02: You did not make a Fifth Amendment taking claim. [00:09:43] Speaker 02: Stop talking about the Fifth Amendment. [00:09:46] Speaker 02: Can Congress remove jurisdiction over a money-managing statute under the Tucker Act? [00:09:52] Speaker 02: Yes. [00:09:53] Speaker 02: Did they? [00:09:53] Speaker 02: Yes. [00:09:55] Speaker 02: That's the end of the case. [00:09:56] Speaker 02: Can we just talk about courts in general? [00:09:58] Speaker 02: Because once you start talking about Article 1, there's all kinds of things. [00:10:02] Speaker 02: We're in the Court of Federal Claims, which gets appealed to our court. [00:10:06] Speaker 02: I don't care if you could have gone to district court and said, this jurisdiction stripping provision violated the due process clause. [00:10:15] Speaker 02: I would guarantee you that they would also look at this and say, it doesn't matter. [00:10:20] Speaker 02: We don't have jurisdiction to review this. [00:10:22] Speaker 02: But that's a case you can go to district court, not the court of federal claims. [00:10:28] Speaker 02: This is my argument. [00:10:33] Speaker 02: Under Fisher, the court has to determine whether a statute is money-mandating or not in order to determine. [00:10:38] Speaker 02: But the point is, who cares? [00:10:41] Speaker 02: Fisher didn't deal with the jurisdictional provision. [00:10:44] Speaker 02: If we agree with you that this statute is money-mandating under the Tucker Act, what's the result? [00:10:51] Speaker 02: The result is the Court of Claims will have to decide whether 4208, as applied in this case, is constitutional or not. [00:11:03] Speaker 02: It's not a cause of action. [00:11:04] Speaker 02: No, no, no. [00:11:06] Speaker 02: Why? [00:11:07] Speaker 02: You don't get to ask me questions. [00:11:08] Speaker 02: I'm sorry, Your Honor. [00:11:10] Speaker 02: What basis do you think that they would get to decide whether it's constitutional or not? [00:11:14] Speaker 02: Answer that question. [00:11:15] Speaker 02: I mean, there are all kinds of issues that come up. [00:11:17] Speaker 02: You've got to make the argument. [00:11:19] Speaker 02: And if your argument is that they have [00:11:21] Speaker 02: independent jurisdiction to decide whether a jurisdictional stripping provision violates due process, then you're wrong. [00:11:28] Speaker 02: The Court of Federal Claims does not have due process clause jurisdiction. [00:11:34] Speaker 01: Leaving aside the jurisdictional exegesis, how do you deal with the determination [00:11:43] Speaker 01: below that your client participated in the crime she reported. [00:11:48] Speaker 02: Well, there was no determination by the court. [00:11:51] Speaker 02: In fact, Judge Meyer explicitly said, for purposes of this decision, I'm assuming that Ms. [00:11:58] Speaker 02: Jacobson would have qualified and would have been entitled. [00:12:02] Speaker 02: So there's no distinction. [00:12:05] Speaker 02: Second of all, there's a lot of facts that are not before the court that would be relevant to your honor's question. [00:12:12] Speaker 02: But in any case, that was assumed away by Judge Meyer's decision. [00:12:18] Speaker 00: OK, Mr. Bessler, you're out of time. [00:12:20] Speaker 00: You've got three minutes left for rebuttal. [00:12:22] Speaker 00: You want to save it? [00:12:24] Speaker 00: I'll save it. [00:12:24] Speaker 00: Thank you, Your Honor. [00:12:26] Speaker 00: Let's hear from Mr. Counselor Kushner. [00:12:31] Speaker 01: Do you have anything to say? [00:12:34] Speaker 00: Not unless the court has any questions. [00:12:37] Speaker 00: Nope. [00:12:39] Speaker 00: Thank you. [00:12:39] Speaker 00: I don't think so. [00:12:41] Speaker 00: So you're back up, Mr. Bestor. [00:12:42] Speaker 02: I think that would be superfluous, Your Honors. [00:12:45] Speaker 02: Is that it? [00:12:47] Speaker 02: Let me stand in front of the podium. [00:12:49] Speaker 02: Thank you, Your Honor, for listening to my argument. [00:12:52] Speaker 02: We thank you for your presence and your arguments. [00:12:54] Speaker 00: All right. [00:12:55] Speaker 00: Thank you. [00:12:55] Speaker 00: For all counsel. [00:12:56] Speaker 00: Thank you for your... This case is now taking their submission.