Havana Docks Corporation v. Royal Caribbean Cruises, Ltd.

Cruisers. Mr. Klayer.

“Mr. Chief Justice may have pleased the court.”

Coffuscated property is to find to include property cubists these control of.

As the commission observed, cubin officials physically occupied the dock facilities, making them confiscated property. Blocking trafficking in such facilities locks them up as tainted until cubit pays for what it took. It's a taking's remedy.

Those are the court. And sorry, it stops money flowing to cubit in the interim. It's an anti-fencing remedy as well. Those are the court statutory objectives they require ongoing remedy. Because trafficking is in facilities, not property interests, term limits on interest

have no effect on the remedies duration. Instead, that remedy's duration is set out in the definition of confiscated, and ends when the claim is resolved or democracy comes to Cuba. That's also true if confiscated property is viewed instead as an interest. The control of the docks taken in extinguished in 1960.

Title III is at the core of the foreign commerce power. Yet the 11-circuit shrunk Title III by viewing the issue as though no confiscation had occurred.

“But that gives a little or no effect to future contingent life is hold in the many expired”

interests, including patents. And places that open for business sign on property taken from Americans, all contrary to why Title III was enacted.

The cruise lines acted in concert with Cuba, and paid state security forces $130 million

to make a billion dollars without seeking our authorization. They relied on the suspension of the private right of action, but now it have this case to be all about Cuban property law. But the claims commission conclusively resolved those issues and gave courts all the guidance needed regarding the claim and confiscated property that issue entitled three cases.

I welcome the court's most expensive. What exactly is property here that has been confiscated? The interests that were taken from us are the equivalent of a leasehold, and comprised

“the docks, the land, the rights to operate those in the concession and machinery.”

Comoviscated property, though, in terms of the unitrathacking prohibition, is the docks themselves. That's not your claim had to do with the use of fruct rights that you had. That's correct. The claim reflects the particular interests that were taken from us. Those include two use of fructs.

The first of which gave rights over an area that allowed us to construct the works and operate

them. The central, the 11-circuit, indicated the use of fruct is for all uses and for all fruits. The other use of fruct was in relation to the areas between streets on the land that was granted later, and that's, again, a plenary commercial control relation to those. So it seems as though you are treating the use of fruct interests that you have, almost

as an actual ownership of the property itself. Sure. I wouldn't say that. No, we're treating it as essentially ownership of a leasehold, a set of interests related to the facilities.

The facilities themselves are what was seized and are set off limits, but that's the underlying property. We don't own the docks other than in the sense of having held a leasehold interest in relation to those. But you normally don't think of someone as confiscating a lease or a leasehold.

That's right. It's exactly our principle argument. We don't naturally think of trafficking or confiscating necessarily being the interests. But it's the underlying property that is the subject of the anti-trafficking prohibition. And then the taken interests are reflected in the claim.

The council isn't the other answer to Justice Thomas and the concerns about what is the nature of this property taken care of by the statute itself, because it seems to me that property is a defined term here and that the statute itself includes the kinds of interests that you're talking about, not just real property, but also things like the leasehold interest you're describing.

Absolutely, at least hold, and any other interests are included in the statutory definition.

things, the res, and the interest themselves. And it has two parts.

“The first part is, as you say, the real, mixed and personal property, the things underlying”

things.

The second part is the interests, and that can be present future contingent.

And I guess my point is that we have defined terms in the statute that tell us what Congress intended when they said you are trafficking in confiscated property. The words trafficking, confiscated property, all of those things are in the statute. So it's a little confusing how the 11 circuit got to essentially redefine what it means to be trafficking in confiscated property and light of this statute.

That's absolutely true, particularly if we focus on the word confiscated. Confiscated has the effect of indicating this stolen property remains stolen until three things happen. It's the claim, the underlying claim is settled by the international claims process.

The properties returned, or particularly adequate compensation is paid.

So, Mr. Glenn, whatever the definition of property is, I mean, you can't sue for property that you are unconnected to, right? You can't say, you know, the Cuban government seized a piece of property across the street someplace, and I didn't, I saw it, I didn't have anything to do with it.

“I think I'll go bring a lawsuit about it.”

You can't do that. That's absolutely right. So what the statute is saying is that the person can sue for property that has been confiscated from that person, correct?

And once the, once you read the statute like that, it seems as though that the property that

was confiscated from that person is here not the docs, the docs is the physical thing, but the property that the person had was just an interest in that physical thing. It was, you know, a stick in the bundle, whatever you want to call it, but the property that the person had was a concession. If you view the confiscated property that's just the interest, that is something that produces

almost the same result, and as you saw in the briefing, we believe that even that model operates to our benefit and requires that the cause of action be a problem. Like I said, I don't see why that's true. I mean, if you see it that way and the property that you have a right to sue about is the concession, that was the thing that was confiscated from you.

I mean, the concession expired, and so you could have sued from 1960 for however long the concession lasted until, but once the concession expired, I mean, you no longer have a property interest, you're just like that bystander that I was telling you about, which is like, you know, there was property that was confiscated all over Cuba, but that doesn't mean that I have a right to be here in court.

So if I could go back to, could you talk just a little bit louder, I'm sorry. I'm sorry. I'm sorry. Let me take one crack at the seize property as confiscated before moving on to what I had the remedy continues, even if it's seen as an interest.

And that's the nexus that you're looking for is, I think, broader than what you're suggesting,

“that you need to have a claim in the property that's probably which was confiscated, and”

that is defined or broadly, it's defined as the property that was seized and it reflects Congress indicating that any of the facility, the mind, the factory, that if that's what sees that that's off limits from trafficking, that that is the enforcement mechanism for having the takings component enforced and it stops money flowing from Cuba, from the exploitation of that property.

The linkage is that once Cuba sees is, say, the docks, that that takes a whole series of interest in Congress's giving each claimant to that property. I guess I understand that, but it doesn't seem to me to fit with the statutory language very well, because the statutory language does not talk about trafficking and claims. The statutory language talks about trafficking and property, and clearly the property

that it's referring to is the property that the person who's suing owned and your property is not the entire docks, your property is a concession in the docks that was time limited. But the statutory language indicates that ties trafficking into the property which was seized. I'm not arguing that our claim is the basis for trafficking.

So any number of claimants can enforce the and I trafficking provision as it applies to the

underlying facilities, the dock facilities, however, if you view the plaintiff's interest as the taken property, it is still the remedy is not tied to the duration of that interest. It's like a taking's claim. If my leasehold is taken, whether before or after the leasehold ends, I have an ongoing remedy to be paid for it, and that's the gist of what is being Congress's providing

here. I wonder why that's true, and this will be my last one. Suppose the docks were split up physically, so there was a blue half and there was a yellow half, and you only had the concession on the blue half.

Then if you came in and said, the yellow half is being used, and I want compensation for

“that, I think, tell me if you would disagree, but I think we would all say, well no,”

you can't have that, because there's a spatial boundary that applies to your property interest, and so, too, here there's a boundary, it's not spatial, so it's not as natural to think about it. It's temporal, but it's still a boundary on your property interest, you know, once it's over, it's over, and you have nothing to complain about anymore, anymore than you would

have had anything to complain about if you were arguing about the yellow part of the dock. The commission's determination would let you know what confiscated property was. If you held an interest just in the yellow portion, presumably the commission would have said the confiscated property is the yellow portion, but be that as it may, that even if you are claiming you've trafficking in the blue portion, that it's still a taking related

remedy, that it wouldn't mean that you don't have the ability to pursue your remedy, yet a remedy to be paid for what was taken from you just because there's a time limit on the particular. If you put this time limit aside, let's look about, let's start with the use limit.

“So as I understand it, you had a cargo use of, use of rocked, right?”

Your concession was only for cargo and the cruise ships used it for passenger, am I understanding that currently? No, we completely disagree with that. We think that we had Plenary Commercial Control as a result of being granted each of the use of rocks, what an use of rock is, is the equivalent of a lease hole, that's the

close of translation, it, as the lemon circuit said, it provides for all uses and all-- So there was no finding below that your use of rocked was for cargo only? Correct. In fact, Judge Bloom considered the full range of arguments and found that to not be the case you rejected that cargo limitation, and in fact, we've charged for passenger ships and

cargo ships, and there is no there there to the argument that the other side cannot point to a single instance where we did not exercise complete Plenary Control over the dox and the land. So what happens is this is a question that somewhat like Justice Kagan's question about divisibility, your claim that was certified includes not just the dox, but also some office

supplies, some office buildings, and I don't know whether those were attached to the dox or not, but in this hypothetical, let's just assume they're farther away and the cruise ships

never use them, but they are part of the valuation that you got from the commission.

Are they liable for that, even if they never touch that property, and even if it was at some remove from the dox themselves? They are because that's the property interest that underlie the claim and the property was taken when, I'm sorry, and the control over those. What if you had a grocery store too, in the middle of the island, has nothing to do with

“the dox, but it's also part of your claim, are they liable for that?”

The claim sets for a certain value, the trafficking just needs to be in the property that's taken. That's right from you, as long as it's your property as long as one portion of it is, that would extend to both the travel. I don't understand, I don't understand that, is there, I mean, the way this commission

worked, would you have had to go for separate go and get separate valuations for different parts of the property, and this hypothetical, I'm giving you the grocery stores completely unrelated to the dox, cruise ship hasn't touched it, and it is the way that it would work that you could get it all valued in one single claim, because I guess I don't understand why they trafficked in the grocery store in my hypothetical.

That is right, you would, the owner of those taken interest would come before the claims

they are near or far, those would be the ones that the commission would pass on.

And then the question of trafficking, who is trafficking in those interests, is the sort of later question, but the commission has determined the scope of your property interest. I guess I'm a little confused about the questions related to the limitations on your property interest, because I thought that was what the statute was saying was the purpose of the commission, that when you say I have had my property interest taken, you go to the commission,

and they decide whether or not the extent of your interest is just the blue part of the

doc or the yellow part of the doc. The later question becomes, who is trafficking or is

“someone trafficking in the yellow part or the blue part, and I think you would say obviously”

in this situation, when the yellow part is the doc and the cruise line is using it, they have absolutely trafficked in the property interest that the commission has identified and told us we own, and the statute only says anyone who owns a property interest, as certified as the by the commission, can make a claim that someone is trafficking in it and get relief or get the money that is associated with that activity in the statute. So it seems pretty

straightforward to me. I'm struggling. I think that's right. There's land and there's the

three peers. If the cruise lines only use one of the peers, the fact that the other peers didn't get used doesn't mean that they're off limits from trafficking, and it doesn't mean that the certified claims damage amount doesn't encompass all of those. There are other

“point I think is that the fact that you might have limited property interests in some way,”

like the property interest that was taken was temporary or but not, doesn't impact whether or not you have a claim, and all you need is a claim in order to trigger this kind of cause of action in the statute. That's correct, and that's necessary to get the statute to work as Congress clearly intended, that if the rent the takings component of the remedy, which like any takings remedy, continues until there's actually a payment for the takin

property, that if the locking up of the docks doesn't continue until that remedy is provided, Cuba has no incentive to pay. That's the whole point of the statute, and your stolen property is exploited. Thank you, Council. This is commissating for the Leader. On the time question, when the foreign claims settled in commission calculated the value of what was confiscated from you, did they calculate how much you were likely

to have owned a two-have received as a result of your concession during the time period of the concession, or did they calculate how much you would have received if the concession had remained in effect up to the time when they made the calculation. If I understand the question correctly, the commission noted that the docks in related rights were to be turned over after an additional 44 years, and that presumably factored into their

valuation calculation. It's not entirely clear that that's the case because of the methodologies that they used in terms of book value and the concession and the land, they treated that as having almost a market value at the time, but I can't say that they didn't take into account,

“because I think they probably did. I treated it as the time limit at least hold essentially.”

As to the extent of the concession, I think you said that the district court found that it applied to passengers as well as cargo. They rejected the Judge Bloom rejected an argument that there was this cargo limitation. She viewed the commission decision as for closing that, but she allowed the full presentation of argument based on the legal expert. She considered that, found to be of no value and there would not be no reason to disregard the commission.

But then she went further and looked at the legal. Was that factual question or that question

Or is it something that would remain open if the case were re-ended?

The 11th circuit expressly left that open and that's open for remand. It did not reach that. If we think of these peers as in the property that these peers constitute as a bundle of rights, did the Cuban government from the beginning have what would be the equivalent of a fee-simple interest in the peer? Yes, as the short answer. They were like the Lethzoor and we were like the long-term

Lethzoor for the leasehold. So what other rights are there in this, what other rights are there in this bundle of rights? Besides that, the interest that the right that the

“Cuban government retains, your concession, what else is there?”

There's the physical property itself, the docs, there's the land, there's the concession

government owned the land from the beginning, right, or not. Yes, and they essentially leased it to us, would be our analogy. That's right, we had complete scenario control at the time it was taken, and our interest was extinguished, and it's that taken interest that is locked into place and can use over time. And now you want to recover a certain amount of money from this one cruise ship line, where

there are other cruise ship lines that use these stocks during the period and would you be entitled to receive the same amount from every cruise ship line that used the docs?

There were four judgments entered against each of four cruise lines, and if in the future

a cruise line and use, docs that have been set off, the Congress is off limits from traffic without our authorization, yes, they would be violating the law and subject to the very extensive penalties that Congress imposed in relation to anyone who traffics and property without authorization. Okay, last question, do you think this scheme is primarily a compensatory scheme, or do you think it is at least equally, and perhaps even to a greater extent?

A scheme that is intended to tell people stay away from Cuba because we want to put maximum pressure on the Cuban government to democratize. I think the latter is the overwhelming impetus from this, the Congress clearly also wanted to give claim holders a remedy because they didn't have one in court, and the claims being a national claim settlement process, but this is a punitive component to it, and Congress's

“presuming, or once this property not to be traffic, because that's what funds the Communist”

regime, that's what continues the regime in power and achieving. Thank you. Yes, I'm not sure I understood your answer to Justice Barrett, but I'm more concerned about your last point because I do think the due process clause would have something to say about any kind of recovery where the most you would have been entitled to was reasonable

compensation at the time of the Cuban government taking over correct. And you can put three-level, or you might, it hasn't been decided yet, you were entitled to compensation for the value of what you had at the moment of compensation, correct, of confiscation. If there's use of the property, I'm sorry, if you were compensated, when it was confiscated,

you were entitled to its reasonable value. That's the, yes, of Cuba paid, just an adequate amount of compensation, man, that would release thing. You're entitled to interest until you receive payment, correct? Correct.

But what you're seeking is something dramatically different. You're seeking now not one compensation with interest. You're seeking infinite compensation forever.

“I think that's what might have troubled the court below, because it's one thing to say,”

I am entitled to my value for my the Cuban government, or from its proxy, the cruise lines. But I don't know what entitles you to ad nauseam compensation for use by everyone forever.

Because that's not an interest in that property.

You didn't have an interest in that property forever. With respect, the infinity and beyond point is one that is in Cuba's control. It doesn't matter who's control it is. There's a due process problem in thinking that you're entitled to multiple recovery from infinite number of people who might use this dollar that far exceeds by, I don't

know, what proportion, the amount that you were owed. The due process concerns are taken care, account of by notice. Congress, through the statute, and the commission through defining what confiscated property

was, ruled those off limits.

Unless there's a substantive problem with that. Congress, there might well be, there's a substantive excessive fines problem, excessive punishment problem, I mean, this is just something that could be left for another day. I understand that, because that's not what is before us.

“What's before us is, did you have an interest in the docs, and the answer is yes, correct?”

You're admitting that that interest was time limited, correct? You didn't own the docs. It would have been time limited to 2004, had there been no confiscation, but our time limit

on that interest was 1960, it ended there.

It ended there, but it wouldn't have gone forever, it went to a defined period of time. So the commission's charge was to value that interest at the moment of confiscation, right? That's completely true. And for taking analysis.

For taking, what was that interest then? I agree with that. All right, now you said to just despair that you were entitled to this, even if they used a piece of land that wasn't a part of the doc, if it was a store in the middle of the island, oh, like, he, well, yeah, no, no, no, did you say if the cruise line had used that

store in the middle of the island, and it wasn't a part of the doc, you would be entitled to compensation? Correct. That is what is ruled off limits, that's the seize property that resulted in the-- The doc was the seize property, not the store.

“Well, and what does the store have to do with the doc?”

That's what I'm trying to get to. Well, the store would have been seized as well, and that's where you look to the FCSE's decision. Oh, now you're talking about the contract that issue would have included the store as well. Is that the-- If the FCSE had considered and ruled that Cuba's confiscation extended to the groceries,

the store as well, and was part of our claim, then yes, just as if there'd been-- This part of what was seized from you? Correct, and so I'm assuming that our grocery store got seized as well. Because Justice Kagan's question was, if that store had not been part of what was seized, you would not be entitled to compensation.

Well, there's two issue. We would be entitled to compensation according to the scope of the damages that forth in the FCSE's claim. There's a separate issue about whether trafficking in that interest would give rise to liability. Thank you. Justice Kagan? Justice Gorsuch?

So pick up on Justice Sotomayor, where's questions? What is the theory you have of why Congress would enact a statute that allows you to obtain compensation from a variety of American businesses, potentially, that vastly exceeds the value of your property? Because Congress had at least dual objectives, and the principal one was to rule off limits from trafficking, property that Cuba had seized, or the property interest, however, where you wish to think about it.

Because that was what was fueling or stopping the transition to democracy in Cuba, and that the taking is the payment in relation to the taking is only going to happen if Cuba has the incentive to do that.

“And that's why there's an anti-fencing component, too, that is, matched to the taking remedy, but they are recognizing the taking remedy and providing an unusual and an unusually large disincentive to be trafficking in property.”

There's no American company right to be violating the embargo and to be dealing with, there's no counter-veiling interest.

I mean, those are the choices Congress is presenting to them for extremely important foreign policy reasons.

This is the sanctions and claim settlement, portions of the Cuban embargo broadly, that are at the heart of the commerce power, and the 11-circuit gave an extremely narrow reading to those foreign policy interests and to the remedy that Congress had provided.

“On the lawful travel issue, that several of the Amicus briefs raise, I assume that remains open, even if you prevail here on this issue, is there anything else you want to say about that at this point, and it's fine if you don't.”

It does remain open, but I'll just point out that, above all, the trafficking took place during the Trump administration, and even during the Obama administration, there was the regulation they rely on, expressly prohibited activities of primarily tourism.

And in last thing, anything on the briefing, at least, that you disagree with the solicitor general on.

No, we agree with the solicitor general's positions, although, of course, we went on to argue at considerable length that even if the property interest is what the confiscator property is subject to the trafficking prohibition that we would still prevail, and it's an ongoing remedy rather than one truncated by the 2004 limit that was extinguished and doesn't exist anymore than the benefits we received. Thank you. Just one question, and it's about valuation of the claim, so I know when you have the commission having valued the claim that's presumptively the value, but let's say that liability is established.

“The cruise lines come back, and they can establish, they can challenge that, right?”

They can challenge the valuation amount.

No, they cannot. Congress made it clear that all determinations of law, in fact, that the commission determines in the claims process is conclusive and final, not subject to view in any court by man's name as or otherwise, at section 1623H. Okay, I thought there was an ability by some heightened evidentiary stand-alone. Yes, what you're referring to is that there are three types of valuation. One is the amount of the claim, another is if a special master has made the termination or the commission, the course of considering a claim that's not certified, and then the third is a fair market value valuation, but it's the higher of any of those.

“So that's really only a plaintiff's right to secure. So the defendant has no rights in that. And I mean, I'll tell you where I'm going with this.”

I mean, it's just kind of unbelievable to me that in the grocery store hypothetical that if you have these disparate interests all over the island and your claim, you know, and that was the property taken, that someone who uses the docs is going to be liable for the value of the grocery store, and let's say you also have gas stations. Let's say you have lots of things because you just happen to be someone with wide ranging property interests. You're saying there's no way for the defendant to get out from under that huge liability, which is just because of the chance that you happen to have wide ranging interests on the island.

It could just as easily have been docs and somebody who own nothing but the docs. That's right, but the chance they have to get out from under that liability is to not traffic and confiscated property deemed off limits at all or without our authorization. Okay, thank you. Just to follow up on your response to Justice Barrett, the chance they have is to say we're not trafficking as the statute defines it in those particular property interests. So it's fine the person might have a grocery store and, you know, set of other interests and this is the cruise line and they're only using the docs.

The cruise lines response is we're not trafficking in the grocery store per the statute and someone like us would say you're right. But here the cruise lines are trafficking in the sense, you know, there's a definition of traffic cells transfers distribute to dispenses uses whatever, right. So the argument I think is that the cruise lines are trafficking in the ownership of the property at issue here as determined by the FCSC, which is the ownership of the doc interest. Is that right? And that's our claim relates to the docs themselves, the confiscated property, which you want to claim to because the FCSC said you're the owner of the use of the docs.

That's exactly right. And the point that you're making about the trafficking definition more broadly, I was using shorthand and talking about authorization, but the trafficking definition excludes from the traffic from liability or from trafficking.

Thank you. Thank you, council. Ms. Raum? Thank you, Mr. Chief Justice, and may it please the court. In 1960 the Cuban government sees the docs that petitioner built without paying a penny.

When respondents then pay the Cuban government around $130 million to use those same docs, respondents traffic and property which was confiscated.

And Congress gave petitioner the right to seek damages from respondents because petitioner owns the certified claim to the docs. Petitioner's suit can proceed regardless of whether you think of the relevant property as the physical docs or as the right to 44 years of possession, control and operation of the docs. Either way, respondents were complicit in Cuba's exploitation of the property before Cuba either provided compensation or returned the property to petitioner. The Court of Appeals rejected that analysis by considering the confiscated property as if there had been no expropriation. And then asking whether petitioner would have had an interest in the property at the time of the trafficking.

That test undermines the scheme that Congress enacted which expressly protects time-limited interests and which is aimed at providing a remedy for Cuba's expropriations.

Not pretending may never happen. I welcome the court's questions.

Who owns the docs? So at all times, relevant here, the Cuban government had the underlying ownership of the docs, but they had provided for control of the docs and possession of the docs to go to petitioner for the term of the use of rot. So the construction. Cuba confiscate docs at it owned. The statutory definition of confiscated refers to seizure of ownership or control of the property.

And so while the Cuban government owned the property at the time, they did not have control of the property.

“That's why in order to effectuate the expropriation here.”

They had to send government agents armed soldiers out to the property to take back control of the physical docs from petitioner. We think that qualifies as a seizure of control under the statutory definition tier. You could imagine this like a car lease for example. So say I have a lease of a car for a term of two years from a dealership. The dealership decides that year after one year that it wants to take the car back. I think it's perfectly natural to say that they seized the car even though they had the underlying ownership of the car at all times.

Do you agree with petitioner's position on the grocery store hypothetical? No, we don't. We don't think that you have to just take the certified claim and every interest that's reflected in the claim as given. I think that the claims commission does lay out as Justice Barrett noted that there are facilities here.

“There are office space, there's equipment, each of those is valued separately. And so you have to be trafficking in whatever interest or in whatever property is that issue.”

And you don't get to just kind of bundle everything together necessarily just because of the way that the claim was set out or the way that it was certified. So we're not looking to the commissions understanding of what the claim is and we're just focusing on what it means to traffic in the property which was confiscated. Again, I would think the property which is confiscated is the property which was confiscated from you, the plaintiff, and that's a time limited concession and the time it's gone. It's gone by now. It doesn't exist.

So I do think that it is relevant that the property which was confiscated doesn't say that it has to be the property which was confiscated from you. It's the property which was confiscated to which you hold the claim and we know that the claim reflects it. No, I don't think it does say that. I mean, you could have easily written a statute which said, you know, the property in which you hold an interest. And that would have directed everybody to say, okay, they're not talking about the property interest that you own. They're talking about sort of like the underlying piece of land in which you have some more limited interest.

But that's not the way the statute is written. The statute is not the property in which you have an interest. This statute is the property that's confiscated. It has to be the property that's confiscated from you. And that's like not the docs. It's just the time limited interest. So I do think that a claim reflects the interest, right? And the confiscated property can be confiscated even if you didn't have the ownership of it.

“So I think putting those two things together, you can get to where I was suggesting, which is that you have to own the interest in the property which was confiscated.”

But even if you disagree with me, I do think that we get to the same place. And that's because you look at the property which was confiscated at the time of the confiscation. So that is the 44 years of the rights to possess and control and operate the docs. Those 44 years don't continue to run because they disappeared at the date of the expropriation.

And respondents are complicit in that by paying the Cuban government for the exercise.

But if that's true, I mean, I do think that the 11th Circuit is right that you're converting a time limited interest into a perpetual interest because of the seizure.

“Like nobody's defending the seizure here, right? But the question is, what does this compensation scheme entitle you to as a result of that seizure?”

And you didn't have a perpetual interest and now you're saying because of the seizure because your interest was interrupted, we're going to treat you as if you did. I don't think that's right. I think at the time of the confiscation, the 44 year interest is distilled into a claim. And that claim entitles you to recover for those 44 years or to get those 44 years back.

And until you either get the compensation for the 44 years or you get 44 years returned, you do have the right to sue anybody who interferes with that.

And Cuba and respondents are acting and concert to interfere with the right for those 44 years. I understand your point that the interest isn't the docks. It's the use of those docks for 44 years that are reduced to a claim in value.

“Mr. Cleaner suggested though that I can recover that amount over and over and over again. You've handled the grocery store hypothetical. How about that one?”

So before the court of appeals, the respondents here have argued that the statute should be read to incorporate a single recovery kind of rule, so that petitioners here could only receive the value of their claim a single time.

That argument is still open on remand. Judge Basha in his descent appeared to adopt the argument, although he didn't explain any of the basis for that.

So that is an argument that you don't need to resolve today, but to the extent that I think there's a multiple recovery possibility here. I don't think that that should dissuade you from reversing in this case. Because that does reflect that this is not a purely compensatory regime. It's a foreign policy tool that Congress is using in order to deter trafficking and to impose harsh economic pressure on the Cuban government. Let me see if I've got it right. I don't have to hutch it for which I'm truly grateful. Correct. But the government does believe it allows multiple recoveries.

We haven't taken a position expressly in the briefing on this, but to the extent that that's a possibility, I do think that that's just reflective of the foreign policy, the significant foreign policy interests here. Got it. Do you have a position? You said the briefing doesn't expressly take a position as the government have a position to be odd if the government didn't have a position on such a significant foreign policy. So we do think that the foreign policy interests here do suggest that Congress wasn't particularly concerned with multiple recoveries in this instance.

“And I think that that is because if you look at the congressional findings this to foreign policy in section 681, in particular paragraph six and paragraph 11, this is 10A and 11A of the appendix to our brief.”

Congress sets out the trafficking and confiscated property provides the Cuban government with badly needed financial benefits including hard currency and that that provision of those resources undermines the foreign policy that's that's encompassed within the economic embargo that pressure that we're trying to apply to the Cuban government in order to persuade it to return to democratic regimes. And I think that allowing for somebody, the facts that some companies have paid off the claim to be that then they can continue business with Cuba and continue paying Cuba millions of dollars.

That really undermines that foreign policy interest. This isn't supposed to be a cost of doing business for companies. It's supposed to be a poison pill that essentially deters them from ever operating with Cuba, at least with respect to the confiscated property. Unless and until the Cuban government returns that property provides compensation for that property or otherwise returns to democracy. Could we also glean from the enactment history here? What Congress was really trying to do? And that is not necessarily set up a compensation scheme, as has been said.

But the fact that the Cuban claims act which initially created the Foreign Claim settlement commission in 1964 just a few years after all this property was taken, but didn't give a remedy. Suggest to me what Congress was doing was really freezing and trying to highlight the fact that this property is taken that it has a lot of value and we're going to set up a system to prevent Cuba from trafficking in it. It did not at that time sort of the initial thrust of this focus on how much anybody was going to get or the people who's

property had been stolen. What is the avenue for recovery? That wasn't the focus. It was to try to keep Cuba from trafficking in this property.

And then when the remedy comes along, I mean it may seem pretty draconian to suddenly give multiple recoveries to all these people, but if you think of it in light of

Congress's intention to really really make it hard for Cuba to traffic in these properties, that kind of a sanction makes at least some sense. Yes, that's exactly right. This was intended to be a huge deterrent. It wasn't intended to be something that people actually ended up paying because it was supposed to make them think twice about ever getting involved in these kinds of tribes actually is all. Thank you, Hansel.

“The, how far can is there any limit to how far Congress can go with this sort of poison pill remedy?”

As just as some of my yard mentioned, there are some due process concerns, I suppose, that that could be raised to the extent that the recovery so far outweighs something else. I think that nobody would kind of bad an eye at this if the recovery was just going to the treasury instead of going to petitioners. Respondents, you have raised due process concerns as to the remedy as well. That is another issue that will be open on remand to the, to the extent that the court has, has further concerns with that there.

And when the commission was calculating, excuse me, the amount due was it supposed to calculate how much petitioner would have received during the 44-year period or a longer period or what does the statute say about that or does it say nothing about it and leave it to the commission.

So, it says that the commission is supposed to understand or figure out what the property interest here was and then value that in the way that's the most equitable.

Under taking considerations of fair market value, book value, replacement value, things like that. I think you can see from the commission decision that they were very well aware that this was a 44-year time-limited interest and that that there's every indication that that was taken into account in the way that they were valuing it. So, New York? I'm not sure you're answering the question. Your answer earlier made it seem as it wasn't 44 years. That was it, it was infinite until the Cuban government gave the property back, it gave back 44 years.

So, how could the commission value it on 44 years when it, by your claim, it's infinite? So, the claim... Until Cubax. The claim continues to exist and the claim continues to be able to be enforced until then, you know, value or the interest.

When I think of claim, I think of like a lean.

All right, and I thought that analogy in one of the briefs was very useful. I lend someone money. Sometimes I lend it for purposes of that property, but often I lend it for the person to use it on something else, but I take a lean on property. That mean that that lean exists until somebody pays it off, all right? And if someone buys that property and knowing the lean exists, they have to pay me, even if they may have given the full value to the owner, the full owner.

“And that's what I think this was like, this law is like correct.”

I think that that's a helpful analogy. Yes, we think that the property interest is reduced to the claim. What the commission did was value that lean, correct? Yes, they value the 44 years. All right. When I read the law or the snippets of it that were given to me, it seemed to say that the respondent could challenge that the value was presumptive that the commission gave,

but they could fight it if it was not right. Correct. So I don't think that that's correct. The way that I read that is that the presumption is that the claims commission's valuation is going to be the amount that you recover. You can't challenge what their valuation was, but you can challenge whether that is the right amount to recover or whether it's what it is. That's what it is.

That's what it is. That's what it is. That is still open. The other side said no. That is.

“To the extent that that's what that's what my friend said.”

I think that that's incorrect, but I do think that you would have to show that the fair market value is the greater of the amount because the recovery is for the greater of the claims certified amount. The other amount that the special master determines which isn't relevant here, more the fair market value. But if you can show that the fair market value is greater and is the appropriate amount to be applied in this situation and that's what's going to apply. I see, so he's right. Okay, that's what I need to know.

I don't know. I'm sorry. No. This is taken. This is forces.

This is a gathering.

Do you want to say anything on lawful travel?

In particular, you know, the story on the other side and the amicus briefs is that they did this at the encouragement of the United States government and that they consulted with the United States government who told them they were good to go. I'm paraphrasing. Yeah. And they say that's lawful travel. And I noticed in your brief, you don't take a position on that.

“Do you have a position on the lawful travel in this case?”

So the government has not made a determination in this case as to whether the particular activities here constituted lawful travel. Whether they were within, I think the general license that that respondents were awarding to operate under. We have in other cases. They were told that previously weren't they by the government? They say that they were.

Again, we haven't made any kind of determination that that is correct to the extent that respondents received assurances from appropriate government officials that what they were doing was lawful and authorized. We do think that that would raise due process concerns. To the extent that the 11th Circuit wants to be. The 11th Circuit wants the government's position in determination on those issues. The 11th Circuit has in prior cases involving lawful travel asked for the United States views on those kinds of questions.

And when we would be happy to provide them at that point, we haven't provided them here simply because it's not a part of the question presented. Thank you. Does this spirit? So you agree that would be open on Riemann? Yes definitely.

“Just one question. Let's say that I agree with you about the time question and I think it has to be gauged at the time of the confiscation.”

I just want to go back to that use question I raised before. So there's this dispute about whether it was cargo only or if it was passengers too. I mean, the statute repeatedly talks about the property, the property that was taken. And I took you to agree with that and so far as you distance yourself from your friends answer to the grocery store hypothetical. If it turns out, let's say it's open on Riemann, on Riemann, that really it was just cargo.

Then does that mean that the cruise lines did not traffic in the property if they didn't use it for cargo purposes? So not necessarily.

I do think it depends on first what you think of the property at is because if the property here is the docs and they had an interest in the docs.

And someone traffic in the docs then their interest would reflect that their interest was limited just to cargo uses and not to passenger uses. And that would be connected to the valuation, but it would still qualify.

“But I also I think the cargo versus passenger thing here is kind of a red herring because even respondents have acknowledged that if petitioners had the exclusive control of this particular piece of property.”

If someone used it for a different purpose then they did that would still be infringing I think on on their right to use. This is the hypothetical with like the the building where one for where you lease it out and there's a use restriction and it can only be used for office space and then someone comes and uses it for a restaurant. Everyone agrees I think that that's still trafficking and confiscated property. So the real question here is whether this was an exclusive right to the docs or an on exclusive right and on that we see nothing in the record that would indicate that it was non-exclusive.

Certainly the court of appeals didn't take that position otherwise there would have been no need to remand for further consideration of the trafficking that had occurred before 2004. If this was a completely non-exclusive interest that could have allowed for for others. And is that the case that part of the value is that they had invested in building the docs. So it's not just like the car lease where I was going to have to keep paying monthly and then you take the car and then what are you know what have you really lost.

But here it was like their consideration was that they kept they had a lot of money invested that they never got back because Cuba confiscated it.

That's exactly right they built the docs the payment for the docs is supposed to be the right to operate and commercially benefit from them. The structure and I just get you to quickly explain the role of the certified claim in your analysis. I'm concerned that we might be led to reason from first principles about property law in general when really the certified claim process which is in this statute is doing very important work. I certainly agree with that the certified claim is going to set out what the property interest was under the appropriate law which I assume would be taking into account the Cuban law that defined the scope of the property interest.

They looked at all the record documents that explained the extent of what the use of right here was the extent of the concession the time limits remaining on that and then they valued that based on the remaining life of the concession and what value was supposed to be able to come out of that. And what they gave is a claim as I understand it never said this terminates or evaporates or something happens to it in the same way that the property interest would have expired.

They were just valuing what the underlying property interest is and giving them a claim.

“That's in the statute here says if you have a claim you get to make this kind of you have this kind of cause of action right.”

That's correct the claim essentially encumbers the property as the lean analogy goes and that property is treated as tainted anyone who contacts with engages with benefits from that property is then trafficking in that property. And the claim holder has the right to to pursue that thank you. Thank you council. Mr. Clement.

Mr. Chief Justice and may it please the court.

“Title three of the Helmsburton Act provides an action against someone who traffics in property which was confiscated from the Cuban government.”

Property is a defined term in the statute that includes any property interest including a time limited one like a leasehold and then the act gives a cause of action to someone who has declaim to such property i.e. the property that was confiscated. The plain text of the statute requires a one to one correspondence between what was confiscated the property inference that was confiscated and the property interest that was trafficked. So if all that was confiscated was the mining interest in a property only somebody who traffics in the mining interest not somebody who harvested his timber on the property is trafficking in the property interest that was confiscated.

The same principles applied to time limits on the property.

So if someone had a 50 year leasehold in the property anyone who traffics during the leasehold traffics in confiscated property but someone who arrives after the leasehold has run might have a might be subject to acclaimed by the landlord but not to the leaseholder. And basic principles of property law reflect those same distinctions. Tahoe Sierra says that both the spatial and the temporal limits define the meets and bounds of the property interests. And so with respect to what's at issue here I think it's clear as suggested in the response to just as Kagan's typo that with respect to the spatial limits this is obvious you can't somebody traffics in your neighbor's property you don't have a trafficking claim against them.

But the same things applied temporarily and here it should be common ground that the only interest that petitioner had in these docs was a concession that expired in 2004. Someone who arrives later is not in a position to traffic in the property interest that was confiscated there's not the one to one correspondence the statute requires I welcome the courts questions. If I had a lease in property if I'd least property and how would that lease be confiscated. So the lease would be confiscated in the sense that I mean I assume that what would happen is that the Cuban authorities would come in and they would take control over the facilities and then in the process you would say they confiscated the leasehold.

That's the way it works in domestic taking's law and in domestic taking's law there is such a thing as a taking of a lease. But of course the value of the lease is reflects its time limit and what we don't have in domestic taking's law is this idea that under certain limited circumstances there is a substitute payer that pays the person who had their property taken in the lieu of the government. And that's the unusual regime that Helms Burton creates but the only person who is in a position to be that substitute payer is the person who traffics in the very property interest that was confiscated by the Cuban government.

If there's a mismatch of the statute doesn't say property interest it says traffic's in property which was confiscated you'd more naturally think that it was speaking to property that was the basis of the lease. Here's the problem with that just as Thomas property is a defined term in the statute. So when you read property you go to the definition and it says any interest in the property including leaseholds including future interests. So we're clearly talking about sticks in the bundle and that makes sense.

I mean if any stick in the bundle is confiscated then it makes sense that you get compensation and under this unusual regime where you put somebody as a substitute payer. It makes sense that you put the substitute payer in that position only if they traffic in the stick in the bundle that was confiscated. So it's the example I used with mineral rights and that's a real world example. Some people there only interest in property that was taken over by the Cuban government was a mineral interest.

“Well what would be the interest if you owned it fee sample?”

Then it's easy you own the whole thing and then you do have the perpetual ability to go after people who later traffic on the property.

And that doesn't make any sense and it really doesn't make sense particularly if you understand that nothing about art position makes the confiscation end or goes away makes the claim against the Cuban government go away. But it also seems quite difficult to pinpoint the interest the particular interest in property. It could be a very small interest. I could lease a closet in a huge dot of facility and somehow I would have to pinpoint that.

Well in theory it could be difficult in practice what you principally see if you look at the claims is you do have some leaseholds but only a handful.

This whole case is about like the government in their brief at page 29 identifies a grand total of five time limited interests among the claims three leases and two patents. So we're talking about a pretty small university of the time limited ones but the time limits are crystal clear if you went and looked at the claims commission order here you would say that you would see that it ends in 2004. So there are ones where you'd have very clear notice. I do want to talk about just as bare its hypo because it's not a hypo. If you look at the claim here it didn't just cover the docs.

It also covered a thousand shares of Cuban telephone stock and it also covered about $300,000 in repudiated debts. Now the district court awarded them the whole nine million even though there's no question that we didn't traffic in Cuban telephone stock and there's no question that we didn't telephoto traffic in the confiscated debts.

And the confiscated debts are important for another reason because I don't think it's actually possible to traffic in confiscated debts.

Yet that is probably the single most recurring claim that's reflected in the claim commissions decisions because what happened is not only when Cuba owed money to US companies it wasn't going to pay so you have all those repudiated debts. But then you know the other problem which is a lot of American companies had accounts receivables from other American companies that were expropriated. Most of all of that's part of the confiscated property. I'm sorry. I'm following you, but I struggle just a little bit. The docs were confiscated.

Well the petitioners time limited interest in the docs were confiscated.

“I can't agree to that with all due respect because Cuba owned the docs. The only thing that confiscated them part of the docs they didn't know which is the time interest. They confiscated control of the docs.”

They confiscated the concessionary interest. They actually with all the respect. I'm not trying to be difficult though. I know I am being difficult, but just a little bit. No but the thing is we don't conceive. The government comes up here and said they had a right to control the docs. That is directly contrary to the position that we took in the district court and that we appealed to the 11 circuit. Our position is they had no control of the docs. They just had a non-exclusive cargo consent. There's a disagreement over exclusivity. I understand that. But for purposes of this question let's put that aside.

There is confiscation of a property interest in the docs. How about that? Can we agree on that? We're together. And there's no question that your client has used the docs. We have used the docs. I agree with you. We just haven't traffic in that which was confiscated. Well the time limited concession and there's a claim with respect to those docs. There is the claim reflects the time limit. If you look at the claim and the claim reflects the time limit.

“So we have confiscation. We have trafficking and we have a claim. What's missing?”

What's missing is the overlap between the property interest that was confiscated and the property interest that was trapped. So the property interest that was confiscated was a time limited interest. Where do you get that from? It's a traffic in property which was confiscated. Well any property of any kind in which was confiscated? Yeah, right. But then you keep reading. And when you keep reading, I still got it right all the time.

I do too. And if you keep reading it says that you shall be liable to any United State National who owns the, not the claim to such property. And the such property is plainly referring back to the property which was confiscated. QED with all due respect. This statute requires a one-to-one correspondence between what was confiscated and what was trafficking.

“And that makes sense of the QED. What's that? I think I follow all that except for the QED.”

I thought that might be your sponsor, but I really do think that if you read the statute, it says that the person who can bring the action is the person with the claim to such property.

Mr. Such property has to refer back to property. Why isn't the claim first to property which was confiscated?

It doesn't say the property that was confiscated. It says property that was confiscated, making it seem broader.

No, I don't think so, because again, properties are defined term in the statute. And so property includes any property interest that you have in the property. And then it doesn't say that, though, it says any property and then when it gives the long list of kinds of property, I read that definition to say essentially any kind of property. So it can be intangible, it can be a patent, it can be a leasehold, et cetera, but it doesn't say a couple times you put an interest before it any interest in property, but it doesn't say any interest in property, it says any property.

So with respect, it says any property and then it talks about specific limited interest in property. And so I'm reading it, I don't think it's a leap to say that it's being inclusive and it's saying any interest in the property.

And then you just finish if you could just finish from it.

Yeah, and then it says that the person with the claim to such property gets to bring the action. And that's important because otherwise you could certainly have a situation where different people had different property interest in the same property, the same physical location. And you don't want to let one of them bring a claim for the other person's claim and the property. And the statute would kind of be chaotic if you did that because it allows you to traffic if you have authorization.

“Well, presumably you need to get authorization from the person who has the exact interest in the property that you plan to traffic in.”

And similarly, there's a provision in the statute A5D that's worth a look.

Because that provision suggests that basically once somebody brings one of these actions, it's exclusive to anybody else, bringing an action in the property.

Now, again, if property means a specific slice of the bundle of specific stick in the bundle, statute works great. By the leasehold and somebody traffic string my leasehold, I can bring an action for my leasehold. But I don't get to give authorization for trafficking years later and interfere with somebody else who's got the fee interest. I'm sorry.

“Why doesn't the statute also work great if we understand that it has a provision that gives some authority to the FCSC to tell us what the person's property interest is?”

It seems to me that your analysis has at least, I counted two problems, but that's really the main one in that you're trying to get us to evaluate what the person's property interest is. When this statute gives that responsibility to that agency, that is, in fact, all that agency is supposed to be doing is listening to the arguments that you're talking about and deciding what this company's, have on a doc's property interest is. And once they've decided that, they said, you have a claim to enforce the interest as we've defined it.

And the statute then appears to say, anybody who has a claim can come in and try to recover in this way. The other thing that I think is missing from your analysis is that nothing about the statute says that the scope or extent of that claim is tied to whether their property interest was temporary or limited or anything like that. And that's the way you've seen to want us to read it. You cut out the FCC in the analysis, and you say, but they only had a limited property interest, so that expired before we arrived, and so they don't get to press their claim.

There's nothing in the statute that says the claim should be evaluated based on what the property interest was. The FCC does that, they tell us this person has a claim, they evaluate all of the limitations, and then the statute operates perfectly. So with respect justice tax, and we're not fighting what the commission certified, what the commission certified was actually a time limited interest. And if you look at, I mean, that's obvious that joint appendix 259, because they say it expires in 2004, but it's even more obvious, if you look at page 256 of the joint appendix, where they say that the whole claim to ownership and control of the docs is on the basis of a concession.

Right, but I mean, nobody knows what they don't say, but what they don't say is that the claim that we are certified today has the same limitations as the limited property interest that we are evaluating.

“That's the thing you're missing, I think, in order to make your argument work.”

I don't think so with respect, and I think it's no different if I can take justice, Kagan's hypot. If the claims commission looked at this thing, and I forget whether it was the blue or the yellow, but if the claims commission said, you got the blues, that's great. And then if somebody traffics in the blues, I have a claim. Now, I want to say, if you're trafficking the blues, you don't get the claim to the Cuban telephone stock, but that's a separate issue. But you get what is specified in the claim, but you don't get a claim over the yellows just because you, they're miragey training.

But what I'm saying is by parity of reasoning, what happens for the spatial limits of the property interest have to apply to the temporal interest in the property.

“So think if there were like two stacked leases, 50 years and then another 50 years.”

If you're trafficking year 45, you have a trafficking claim against the person who owned the first leasehold.

But if you're traffic in year 55, you have a claim against the person who owns the second leasehold has the claim against you, but the first one doesn't. Keep in mind, there's nothing terrible about that. This statute, Congress didn't think it was giving a trafficking claim to everybody who had a claim against Cuba. There are lots and lots of claims that by the nature of the property, you're not going to have a trafficking claim.

“I didn't think it was giving a claim to everybody who had a claim, giving a claim that could be a serving court to anybody who had property confiscated by the Cuban government.”

But isn't what Congress said this, as applied to this case, Havana, Docs had a concession for 44 more years and that had a value, and the Cuban government has not compensated them for what they've taken. And therefore, nobody is to use that concession in the future. Nobody is to use the property interest that was the subject of that concession in the future until there's compensation from the Cuban government. So, you know, you go into this with your eyes open. Maybe you were misled by the government. That's another story, but you know, if your client came to you and said, we're thinking of docking our cruise ships and what does that, what's the Helms Burton Act going to mean for us?

I mean, I would say, well, you know, you're taking a big risk. Well, I would say, yeah, it's a close question. We might end up in the Supreme Court of the United States, but I would say, I'll tell you what my best would be that I would bet you would not, you know, you would not advise them. Full speed ahead, and we'll, we'll litigate this in the, in the Supreme Court. I would, what I would tell them is there might be reasons to be somewhat cautious, but my best reading of the statute is you don't have anything to worry about after 2005.

And the reason I say that is because, first of all, the statutory text specifically says that you have to compensate, you have to traffic in the property interest that was compensate, like confiscated. Obviously, I piece together some pieces of the statute, but I think that is the best reading that you need the one to one correspondence, and then I would say, look, I pulled the claim. And when I pulled the claim, I saw that the only basis for a claim to ownership of the docs was on the basis of the concession that's joined appendix 256, and then I keep paging through and I joined appendix 259, it says that expires in 2004.

So I would say, look, you know, there's a lot of money under the statute, the way the petitioners interpret it, there's an enormous amount of money under the statute. So you may get sued, but if you want my best answer, my best answer is you're in the clear after 2005.

And like I said, that doesn't really distinguish it from a whole bunch of other property that Cuba confiscated from the Sabatino case.

They confiscated sugar. It's a perishable good. The sugar that was confiscated in 1960 is not available for trafficking anymore. That doesn't mean that the claim to the perishable good, it doesn't mean that it wasn't confiscated. It doesn't mean that the people in Sabatino don't have a claim against the Cuban government. This means that in the nature of certain property interest, there will either be very little sort of window for trafficking in that same property interest, or there'll be none at all.

If you're reading of the statute as correct, it's argued it would make hash of the coverage of patents.

And that does seem to me to be correct. Why is it not? Well, it's not for two reasons. One is because the University of Confiscation didn't stop in 1960, so as at least a theoretical matter.

“And that's what you should be looking at if you're worried about deeming terms superfluous in a statute.”

You could confiscate patents going forward. But the second reason is as a theoretical matter, Congress included patents because it thought that even though all the patents that had been issued to Americans in Cuba before the Cuban Revolution had expired after 17 years. Somebody here might go to Cuba after the enactment of the Helmsburton Act and get a patent on something under Cuban law. And then the Cuban government might subsequently confiscate that patent. That's why Congress included patents in the statute.

Because it wanted to be comprehensive of all interest in the in property. But I don't think it's a far fetched hypothetical to say that somebody might have like illegally left Cuba from the Cuban government standpoint had a patent and that patent was canceled and that might be something that they could give a bring an action to.

And they found even in 1960 they found only two claims that involved patents. And I do think this does underscore the point that Justice Barrett alluded to, which is, it just can't be right. That if you traffic in anything that's covered by one of these claims that you get to recover the full amount of the claim. Because like one of the two patent claims that they point to on page 29 of their brief, I looked it up, it's ITT.

So ITT was one of the largest sort of confiscies, if you will, and the total amount of their claim is $500 million. The value of the patents that were confiscated is $7,000.

Now, first of all, I think the reason we're right about patents is because like I think it's weird to create a perpetual patent. But if he was assumed that that's the right answer and so that patent becomes the super patent and it continues to apply. That's pretty infringes on one of ITT's patents in 2026. They can't be entitled to the full $500 million in the claim. Or if they are, I'm going to stop doing what I'm doing and move on to something else. Because that is an unbelievable windfall.

“It has to be that it's not the claim the claim the claim. It's the property interest, the property interest, and you need to have that one-to-one correspondence between that which was confiscated and that which you trafficked in.”

If you don't have that, it doesn't mean the claim goes away, doesn't mean the property is not confiscated. It just means that the particular person who arrived at a neighbor's property or arrived at the dots five years too late.

If somebody who is not going to be put in the extraordinary position of being the substitute payor of just compensation for the Cuban government.

Why not putting aside the multiple recovery issue, which I agree with you, gives rise for concern, okay? Putting that aside, why isn't this like a lean? You buy the property, you know that you have to pay for someone who owned the use of the dots before. Now whether it was exclusive or not, your cruise line, you know that the commission has said that they had a lease interest that was at least four unloading cargo, I can see that. Why aren't you viable? Because that's not the statute that Congress wrote. I mean I too enjoyed. If I disagree with your construction of the statute, if I see that all you have to have is a claim in confiscated property, and the lease is a claim on the dots.

Whether you want it to be a claim on the dots or not, it is because the lease is of the dots. So I just can't find that in the statute and like I too enjoyed their brief and I enjoyed the reference to lean and I enjoyed the reference to incumbents. And if I found either of those words in this statute, I might think they had different points. Property is leaves. What's that? It defines the statute defines property. It might include leans, but it doesn't make the claims leans. It doesn't make a claim commission claim a lean on the property.

It doesn't make it an incumbrance on the property. It doesn't do all of those things. And of course I don't need to tell you like you know leans are like interesting creatures. They don't require you to have any real interest in the property. If I have a mechanics lien on a property, I don't have to have any interest in the property.

“So I think if Congress wanted to come up with a lean regime, then you know it would have written a different statute.”

And I would have given different advice to the client in just as a legal type of ethical. I would say yeah, though that's the same address. Thank you. I meant why wouldn't so part of the intuitive appeal of your argument is it feels unjust, right? Putting aside the statutory language. I mean it feels unjust because the multiple recoveries possibility and and because this was a time limit at interest. But the time limit at nature of it is presumably accounted for in the valuation.

And I don't see what's wrong with Justice Alito's description of saying that if something is taken at the time. So in 1960 Castro takes it that it then becomes script tonight for purposes of trafficking nobody can touch it.

And it wasn't just the least because they paid for these improvements and they were never compensated for those improvements.

So I guess I just don't see in the statute, which does talk.

“I agree with you that it requires a one to one insofar as you have to traffic in the property and not the grocery store, right? The property.”

But it seems like the property is the docs, the use of the docs. I guess I don't understand why that's crazy. It's not crazy but it's wrong because it needs to be the particular property interest that was confiscated.

But if somebody goes there and all that was ever confiscated was the mineral rights.

“And you know, some company goes there and it takes all the timber and takes the lumber away.”

I wouldn't think they trafficked in the confiscated property. And I don't know why it's different from the time limits. And to the extent the government is sort of suggesting this sort of suspension or tolling rationale, there's two things wrong with that. One is, my friends on the other side, a page nine of their reply brief, expressly disclaims suspension or tolling. And the other thing is it's just wrong as a factual matter because we know from the experience with this particular concession.

We're from 1906 to 1910, the Cuban government had a spat with, you know, scovole, whoever was the original developer. And they couldn't move forward for four years and it didn't tack on four extra years to the concession. The concession ends, you know, the first one was 50 years, got extended 49 years, which is the maximum, by the way, the Cuban law allowed.

So it was always like, it's not a tolling, it really isn't 44 years, it really isn't until 2004.

But the bottom line is Congress could have written a different statute. They could have made it clear that it's in a lean, it's in a comberance, they could have said, no, no, it's just the parcel.

“Now they would have really had to write a different statute because I think then if you go to 608 to A5D, that provision would be written differently if that's the way they conceptualize.”

And then the provision about authorization, I think, would have been written differently because it doesn't make sense if, like, if somebody had the mining rights and somebody had the timber rights. And somebody wants to harvest the lumber, if the person with the mining rights gave permission to the person who took all the lumber. Like, that doesn't make any sense. It's got to be the specific property interest. And if that's true spatially or for mining versus timber, there's no reason that's not the right answer for the basis of time.

Mr. Clement, what's your response to it would have been written differently and in the way that you describe if Congress's aim was compensation? But if Congress's aim is to do what Justice Alito suggested, which is put pressure on the Cuban government, create a sanctions regime and keep people from trafficking in foreign property or its stolen property in this way, I don't understand why the statute wouldn't be written exactly as it is. Giving anybody whose property was taken as certified by the FCSC, the ability to say, however many years later, nobody should be using my property until I get compensation for it.

Well, I mean, first of all, it all depends on what we mean by my property. And I would say my property is that was confiscated.

Can you answer the extent to which what we expect to see in the statute, the structure? You keep saying Congress would have written it a different way. But I'm saying Congress would have written it the way you're talking about if they were trying to compensate people. But you're not saying it has to be compensation, right? I mean, there were 44 more years left in which these kinds of suits could have been brought.

“And that doesn't have anything to do with compensation or not. The suits could have gone wildly over the amount that was that you had it at issue, correct?”

Absolutely. And indeed, like saying tie it to compensation, you're saying tie it to the nature of the property. And at some point, a temporal property interest runs out and you don't have it anymore. That's exactly right. And what Congress clearly wrote the statute is they put not everybody, but they put a very specific person in this unusual role as the substitute payer for a just compensation for the Cuban government and it's the person who traffics in the property interest that was confiscated.

Now, in this case, even one of the respondents, there's an argument that they went there before 2004. So this is not an argument that nobody gets compensation for this interest, but you know, and if you have some amazing sugar that can still be used in 2027, well, then that's something where you can traffic in that which was confiscated. But there are plenty of interest, and I do want to say, like, the single largest element of all of these claims when I looked at them, are these forgiven debts or repudiated debts or destroyed accounts receivable, because they expropriated the other US company?

I don't see how anybody traffics in any of those. So Congress wasn't trying to pass the statute that says, we don't want anybody to go anywhere near Cuba, and we want to provide a trafficking remedy for everybody who has a claim against Cuba. It's a more limited statute, and this is the other thing, Justice Jackson. Like, if you look at the statute, I mean, my friends want you to sort of say, this is the most punitive statute ever, so you should interpret it every word in it to be as punitive as possible.

That's actually not the statute that Congress wrote. There are things like anybody who was there before gets a grace period, there's a two-year statute of limitations.

That the point of it is to make this scheme be so that cruise lines in the future will not use property that has been confiscated by the Cuban government in this way.

“So can I say two things in response to that? One is that everything I just said about the statute not being maximally punitive means it's also not maximally deterrent.”

It's a balanced statute. There are provisions in there. Presumably it was compromised. The other thing is, if you take a step back, this is at some level, a statute about compensation because what makes what Cuba did unlawful is not that they took US nationals property. That they did it without providing just compensation. So the whole theory of this statute is, I don't know whether we're ever going to get just compensation from Cuba. But if we can get substitute payers who actually traffic in the confiscated property, that's good or not. I'm sorry.

>> Thank you council. >> Justice Thomas. >> This is difficult. >> This is difficult. >> This is difficult.

>> Just critical to your whole case in the answers, everyone is the exact parsing of the definition of properties.

You just want to walk through the definition of property because you said to Justice Alito and we're piecing together various parts of the statute. >> Sure.

“>> Oil's down to those words in the property definition, I think.”

And if so, can you just walk us through and summarize your position on that? >> Sure. I mean, for me, it's most helpful to start with 682A1A that says any person and I'm going to skip over after the end of the three month period. Any person that traffic's in property which was confiscated. So then, it's a defined term in the statute, so of course, like any good textualist, I'm going to go to the definition of property in the statute, which is in sub-12. It's an 11A of the appendix to the blue brief.

And then it says the term property means any property, and that seems to me almost the most important thing. But to me, what makes this kind of easy is that it says, including any leasehold interest. Okay, so I know that the concessions not exactly a leasehold interest, because a leasehold gives you control and we desperately say they didn't have control of the docs, they just had a concession. But it's at least like a leasehold, and then it's time limited. And then I pop back to 682A1A, and I say, okay, who has the cause of action here?

It's the U.S. National who owns the claim.

“I mean, I know like you don't always get too excited about definite versus indefinite articles, but this would be a much better statute for the other side, if it said instead of the.”

It says the claim, but here's the killer to such property. And so the such property has to refer back to the property that was confiscated, and that isn't like the street address, or the docs has facilities. That's the property that was confiscated, and that includes a leasehold, but when the leaseholds over, you're not going to be in a position to find somebody who trafficked in that which was confiscated. Thank you.

So I got it. Yeah. That's just Jackson. Thank you, Congressman. Thank you, Congressman.

A lot of Mr. Clear? Just a couple of points. First, the claim. It doesn't stand in isolation.

Second, 682 requires proof of ownership of the claim.

And Congress used the claim rather than a claim because that can be contested. That if you look at A5D, particularly if you don't have a certified claim, you're asserting the claim in the particular obligation. You still need to show that there's ownership to it. And if someone else has a certified claim that is covering the same interests that you don't have the claim. So Congress had to use the claim there.

But in A3, it talks about liability arising from someone who traffics and the liability is in relation to anyone who holds A claim. Same with A4. It talks about bringing an action on A claim. Second, Justice Alito's advice question. Isn't hypothetical?

The Cruise Line Association was asked as it appeared that suspension may be lifted for the private right of action. There asked, do we have exposure here? And the answer wasn't, oh no, there may be some litigation risk, but 2005 on your fine. It was, oh my gosh, you have a tremendous amount of risk. And they gave a certain reasons that might be defences.

But the gist of it was hardly that the statute is clear in some way. It believes you are the obligation. And when the cruise lines were lobbying to keep the suspension supported to keep the private right of action suspended, they said, please President Trump, don't implement the private right of action because we're liable for hundreds of millions of dollars.

They'd been advised by their lawyers.

“We have the Cleo memo in the joint appendix.”

The 2005, it didn't even feature, at least prominently.

There's a lot we're mentioned.

“You can throw one of the, well, and then the third is, I just want to tie the foreign policy interest to the scope of the remedy here.”

I think the, I mean, Kryptonite was a better example.

I wish I'd used that, but this is designed by Congress to put property that had been seized off limits from trafficking.

“That's what fueled the Communist regime.”

That's what was trying to be prohibited here in addition to giving an incentive for Cuba to make a remedy. But I don't think that was actually expected. But if you take the 11 circuits approach here, almost as nothing is left of the statute in this regard, that it's not just a few time-loaded interests. It's leases. Almost all business leases over 65-year period will live evaporated by now.

It's life interests. Every day, another interest holder dies, then that property is freed up for exploitation under the, and finish your sentence. Freedom for exploitation under the 11 circuits view. Thank you, Council. The case is submitted.