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Full-text: April 14 2003
JA 39, p.1

ORIGINAL, In the United States Court of Federal Claims, Case No. 00-00443L, (Filed Apr 14 2003)

Filed, Apr 14 2003, U.S. Court of Federal Claims

Case No. 00-CV-00443-LMB


Filed April 14 2003


 )
El-Shifa Pharmaceutical)
Industries Company and)
)
Salah El Din Ahmed)
Mohammed Idris)
Plaintiffs,)
)
v.)
)
The United States of America,)
Defendant.)
 )

Order

Baskir, Judge,

Plaintiffs have filed a timely motion for reconsideration under RCFC 59 seeking to vacate the Opinion filed March 14, 2003, dismissing the Complaint. The basis for their motion centers on the Court’s purported treatment of Plaintiffs’ pharmaceutical factory, the property that is the subject of its takings claim, as “enemy property.” We deny Plaintiffs’ motion.

The decision whether to grant reconsideration lies within the discretion of the Court. Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). Reconsideration is appropriate to remedy a manifest error of law or mistake of fact. Franconia Assocs. v. United States, 44 Fed. Cl. 315, 316 (1999) (citing Principal Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164 (1993)). Parties requesting this remedy must be prepared to show: (1) an intervening change in the controlling law; { p.2 } {JA 40} the availability of previously unavailable evidence; or (3) that the motion is needed to prevent manifest injustice. Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 301 (1999) (citing Bishop v. United States, 26 Cl. Ct. 281, 286 (1992)).

Plaintiffs seek to correct what they see as the Opinion’s incorrect or unsupported factual statements. The motion resolved by the Court was a motion to dismiss. Consequently, we performed no fact-finding in arriving at our decision. We certainly did not find as a factual matter that El-Shifa was enemy property. Indeed, we went to great lengths to assure the Plaintiffs, particularly Mr. Idris, that the President’s association of El-Shifa with terrorist activity may well have been in error. There is thus no occasion to correct erroneous “findings.”

We did, however, conclude as a legal matter that we must defer to the President’s characterization of El-Shifa as an imminent national security threat. El-Shifa argues that this approach is in error because Defendant has not restated in this litigation that the property was enemy war-making property. As our repeated references to the President’s explanations amply demonstrate, the nature of the governmental action for purposes of the takings doctrine could not be more clear. The authority relied upon by the Court establishes that the President’s use of force under these circumstances is not subject to the takings clause. Plaintiff could point to no authority, from the vast collection of takings jurisprudence, establishing the viability of a claim for just compensation for property destroyed as a military target.

In conclusion, we have carefully reviewed our analysis in light of the present motion and find no legal or factual error justifying reconsideration. Accordingly, Plaintiff’s motion is denied.

It is so ordered.

Signature: Lawrence M. Baskir

 

{Signature}

Lawrence M. Baskir
Judge

 

Source: Photocopy of a duplicate original (the Court’s file copy).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

Previous: Plaintiffs’ Motion for Reconsideration and to Vacate Judgment (March 28 2003).

Next: Plaintiff’s Notice of Appeal (May 12 2003).

This case: El-Shifa Pharmaceutical Industries Company v. United States (200 kb), 55 Fed. Cl. 751 (C.F.C., 00-CV-00443 (50 kb), filed July 27 2000, dismissed March 14 2003, reconsideration denied April 14 2003), appeal docketed May 19 2003 (Fed. Cir., No. 03-5098 (50 kb)).

Related case, in the U.S. District Court for the District of Columbia (Washington D.C.), El-Shifa Pharmaceutical Industries Company v. United States (D.D.C., 01-CV-0731 (50 kb), filed April 4 2001).

Related case: Idris v. U.S. Treasury Department (D.D.C., 99-CV-00472 (25 kb), filed Feb. 26 1999, dismissed as moot May 5 1999) (blocked bank accounts).

This document is not copyrighted and may be freely quoted.

Charles Judson Harwood Jr.

CJHjr

Posted May 10 2003. Updated Nov. 10 2003

http://homepage.ntlworld.com/jksonc/docs/el-shifa-cfc-d58.html

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