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Full-text: March 28 2003

In the United States
Court of Federal Claims

	)
El-Shifa Pharmaceutical	)
Industries Company, et al.,	)
Plaintiffs,	)
)
v.	)
)
The United States,	)
Defendant.	)
	)

Plaintiffs’ Motion
for Reconsideration and to Vacate Judgment

Plaintiffs Salah El Din Ahmed Mohammed Idris and the El-Shifa Pharmaceutical Industries Company respectfully submit, pursuant to Rule 59 of this Court, this motion to reconsider this Court’s opinion and order of March 14, 2003 and to vacate the judgment entered that day.

Argument

In its opinion of March 14, 2003, the Court dismissed the complaint on the ground that the pharmaceutical plant at issue in this case must be deemed noncompensable “enemy property” in light of President Clinton’s public statements shortly after its destruction. The Court ruled that “[t]he Constitutional protection afforded by the Takings Clause is not intended to {p.2} compensate for destruction of enemy war-making property through the exercise of military force.” Slip op. at 19. The Court found that “[t]he property was designated by the Commander in Chief as enemy war-making property,” and that it “must defer to the President’s designation.” Id. at 30.

While plaintiffs dispute the correctness of such a designation, that is not the basis for the present motion. Reconsideration is necessary for a much more fundamental reason — we do not yet know whether the Government even contends that the plant was “enemy property.” The Court cannot properly “defer” to the Executive Branch on this decisive factual conclusion before the Executive Branch has stated its position.

Plaintiffs have, of course, contended vigorously that the plant was not enemy war-making property. But more importantly, the Government has not taken a contrary position.

It has not answered, but has moved to dismiss on a variety of pre-merits legal grounds (such as standing, jurisdiction, and justiciability) and on the military necessity doctrine, which does not require that the property at issue be “enemy property.” See Slip op. at 24; see also DeF.Supp. Political Question Mem. at 39 (contending that “whether the destroyed property is ‘enemy property’ is immaterial”).

Its briefs have carefully avoided taking any position on whether the plant was in fact “enemy property.” The Government instead ducked behind the {p.3} evasive argument that it does not need to take a position because President Clinton’s statements “are immune from review and thus conclusive.” * 

But constitutional limitations on the ability of the Judiciary to review the President’s decisions do not prevent the Executive Branch from stating its position on the facts, whether or not it agrees with past presidential statements. And the statements of former President Clinton in 1998 are not the statements of the current President or his representatives. Thus, as it stands today, the parties could be in agreement that, as a matter of fact, the El-Shifa plant was not associated with any terrorist organization, that it was not producing any chemical weapons, precursor materials for the production of chemical weapons, or any other unlawful {p.4} contraband, and that it did not in any other way fall within the “enemy property” exception to the Taking Clause.

Under these circumstances, it was improper for this Court to defer to factual conclusions in President Clinton’s statements. The political question doctrine entrusts issues to the political branches for their resolution. Assuming a fact that the Executive Branch has carefully refrained from asserting turns that doctrine on its head. Moreover, the respect owed to the Executive Branch does not prevent this Court from requiring the Executive to state its position, especially where constitutional rights are asserted. Only after the Government has stated its position on the facts — rather than President Clinton’s initial, erroneous position — will the Court be able to determine whether there is a factual dispute in which deference may be given to the determinations of the Executive Branch.

The cases on which this Court primarily relied reinforce this point. In Hamdi v. Rumsfeld {208kb.pdf}, 296 F.3d 278 (4th Cir. 2002) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}, the Fourth Circuit rejected as “premature” the Government’s proposal to dismiss the habeas petition of a detainee captured in Afghanistan because there had been no “judicial inquiry into Hamdi’s status as an alleged enemy combatant.” Id. at 283. Only after the Government filed “an affidavit from the Special Advisor to the Under Secretary of Defense for Policy, Michael Mobbs” setting out in {p.5} detail the Government’s factual allegations did the Fourth Circuit authorize a merits ruling on the issue, which reflected deference to the Government’s factual findings. Hamdi v. Rumsfeld {208kb.pdf}, 316 F.3d 450, 461 (4th Cir. 2003) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}. Padilla v. Bush {231kb.pdf}, 233 F.Supp.2d 564 (S.D.N.Y. 2002) {reversed June 28 2004 (U.S., No. 03-1027) (517kb.pdf)}, is even more closely analogous. In Padilla, the President had affirmatively designated the incarcerated habeas petitioner as an enemy combatant. See id. at 569. Yet, the district court in that case refused to dismiss the petition even after the Government had filed a detailed factual declaration setting out its view of the facts, because the petitioner had not yet had an adequate opportunity to present his factual case. See id. at 572-73, 605 {reversed June 28 2004 (U.S., No. 03-1027) (517kb.pdf)}.

As in Hamdi, the Government should be required to answer plaintiffs’ factual allegations. If the Government contends that the facility was enemy property, it should at least be required to file an affidavit like the one submitted in Hamdi supporting its position on the facts. Only if the Government contests plaintiffs’ factual contentions will the Court be called upon to determine the deference that is appropriate to the conclusions of the Executive Branch. If the Government does not, the Court will never be required to determine whether it is “bound by the President’s designation of the El-Shifa plant as a chemical weapons facility under the control of Osama bin Laden,” Slip op. at 32. {p.6}

In sum, the court cannot defer to an executive determination of a fact until the Government has placed that fact in issue. Until then, the factual allegations of the complaint must be accepted as true, even on matters as to which deference might be appropriate on a merits determination. The court should reconsider its ruling in this case and postpone consideration of the deference to be given the Executive Branch until the Government has taken a position on facts that may call for such deference.

Conclusion

Plaintiffs respectfully request that the Court vacate the judgment entered on March 14, 2003, deny the motion to dismiss, and require the Government to answer the complaint.

Dated: March 28, 2003

{ Signature }

Stephen Brogan
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Attorney for Plaintiffs

Of Counsel:
Timothy J. Finn
Jonathan C. Rose
Daniel H. Bromberg
Michael S. Fried

JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001 {p.7}

______________________

Certificate of Service

I hereby certify that I caused a copy of the foregoing Plaintiffs’ Motion for Reconsideration and to Vacate Judgment to be served by United States mail, first class postage prepaid, on Peter H. Oppenheimer, Esq., Environment and Natural Resources Division, U.S. Department of Justice, P.O. Box 4390, Ben Franklin Station, Washington, D.C. 20044-4390, attorney of record for defendant, this 28th day of March 2003.

{ Signature }

{ Daniel H. Bromberg }
Attorney for Plaintiffs

Footnotes

 *   The Government responded to Plaintiffs contention that it must plead its position on the facts as follows:

Def. Political Question and Necessity Reply Brief at 6-7 n.5.

 

This document is not copyrighted and may be freely quoted.

Charles Judson Harwood Jr.

Posted May 10 2003. Updated Oct. 24 2003

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