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Full-text: August 27 2003

United States Court of Appeals for the Federal Circuit

Filed, Aug 27 2003, U.S. Court of Appeals for the Federal Circuit, Jan Horbaly, Clerk

No. 03-5098


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

Appeal from the United States Court of Federal Claims in 00-CV-443 (50 kb), Judge Lawrence M. Baskir {p.xii}

Brief of Appellee

Statement of Related Cases

A Complaint filed by Plaintiffs-Appellants against the United States based on the same allegations and seeking damages in the same amount as in the instant action but premised on a theory of tort liability is currently pending before the United States District Court for the District of Columbia. El-Shifa Pharmaceutical Industries v. United States, No. 01-CV-731 (D.D.C., filed April 2001). If Plaintiffs-Appellants were to obtain a final judgment in the pending district court case and be awarded damages for the destruction of their facility, the case before this Court would be subject to dismissal based on accord and satisfaction. {p.xiii}

Jurisdictional Statement

The Complaint alleged jurisdiction in the Court of Federal Claims (“CFC”) based on the Tucker Act, 28 U.S.C. § 1491(a). JA41. 1  The CFC issued a published opinion and entered final judgment dismissing Appellants’ claim on March 14, 2003. JA8. The CFC issued an order denying Appellants’ motion for reconsideration on April 14, 2003. JA39. Pursuant to 28 U.S.C. § 2522 and Fed. R. App. P. 4(a)(1)(B), Appellants filed a timely notice of appeal on May 12, 2003. JA218. Jurisdiction in this Court is based on 28 U.S.C. § 1295(a)(3). {p.1}

Statement of the Issues

The issues presented are:

1.  Whether the Takings Clause requires compensation for the deliberate destruction in an authorized military action of a military target designated by the President.

2.  Whether the Takings Clause applies to foreign-owned property located on foreign territory.

3.  Whether the CFC had personal jurisdiction over Appellants and subject matter jurisdiction of their Complaint.

Statement of the Case

This takings case arises out of a terrorist attack against the United States and the resulting military response ordered by the President. That military response included a cruise missile strike launched from U.S. Naval vessels at an industrial facility (the “facility”) in Sudan designated by the President as an enemy war-making instrumentality. The strike successfully destroyed the facility. The facility’s owner, a Sudanese company, and the company’s sole shareholder, Appellants herein, subsequently filed suit against the United States alleging that the destruction of the facility effected a taking within the meaning of the Fifth Amendment and seeking $50 million in just compensation. {p.2}

In its motion to dismiss, the United States argued that: (1) Appellants lack standing under the Takings Clause because the Clause cannot be invoked by a foreign claimant with respect to property located on foreign territory, (2) the CFC is without subject matter jurisdiction because Appellants’ claim sounds in tort, is maritime in nature, and thus falls within the exclusive admiralty jurisdiction of the federal district courts, and (3) the CFC is without personal jurisdiction under 28 U.S.C. § 2502(a) because Appellants have not affirmatively demonstrated that U.S. citizens enjoy reciprocal rights to prosecute claims against the Sudanese government in Sudanese courts on an equal footing with Sudanese nationals. With leave of the CFC, the United States subsequently added the military necessity and political question doctrines as grounds for dismissal of the Complaint.

In an opinion issued on March 13, 2003, and reported at 55 Fed. Cl. 751, the CFC granted the government’s motion to dismiss, concluding that the right to compensation for a taking under the Fifth Amendment does not extend to the destruction of property designated by the President as enemy war-making property and that the CFC may not look behind the President’s discharge of his constitutional duties as Commander in Chief, including his declaration of what constitutes an enemy target and his determination to use military force to destroy {p.3} that target. JA8-38. The CFC denied Appellants’ motion for reconsideration in an order issued April 14, 2003. JA39-40.

Statement of Facts

Factual Background

On August 7, 1998, terrorists affiliated with Usama bin Laden bombed the United States Embassies in Kenya and Tanzania, killing almost 300 persons, including 12 Americans, and injuring 5,000 more. JA10, JA206. Invoking the nation’s inherent right of self-defense and responding to the “imminent threat of further terrorist attacks against U.S. personnel and facilities,” the President took decisive action. JA10-11. 2  Pursuant to his constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive, the President ordered U.S. Naval vessels to launch a cruise missile strike against an industrial facility in Sudan, id., a country that the U.S. had warned for years to stop harboring and supporting terrorist groups. JA28. Based upon intelligence and advice received from his national security advisors, the President concluded that this particular facility was associated with the bin Laden terrorist {p.4} organization, that it was involved in the production of materials for chemical weapons, and that it “served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives.” JA10-11. The cruise missile attack launched on August 20, 1998, successfully destroyed the facility. JA11.

Proceedings in the Court of Federal Claims

On July 27, 2000, El-Shifa Pharmaceutical Industries Company, a stock corporation organized under the laws of Sudan and the exclusive owner of the facility, and the corporation’s sole shareholder, Salah el din Ahmed Mohammed Idris, a citizen of both Sudan and Saudi Arabia (collectively “El-Shifa”), filed a Complaint against the United States in the CFC, alleging that the deliberate destruction of the facility constituted a taking of their property within the meaning of the Fifth Amendment. El-Shifa allege that the United States selected the facility as a target based on erroneous intelligence and purposefully destroyed the facility although lacking any legitimate factual basis for doing so. JA45-46, JA62. El-Shifa allege that the facility did not manufacture chemical weapons or any chemical components of chemical weapons, that it was not connected to terrorism, and that it was not a threat to public health and safety. JA44-45. El-Shifa allege that the statements of the President to the contrary {p.5} were made with “reckless disregard for the truth” and were “false.” JA47. El-Shifa allege that none of the government’s explanations for destroying the facility have any merit. JA46. Finally, El-Shifa allege that the President ordered the destruction of the facility “to restore his diminished presidential authority and popularity.” JA47.

In a decision filed on March 13, 2003, the CFC granted the government’s motion to dismiss and directed that judgment be entered accordingly. The CFC held that the Fifth Amendment Takings Clause does not extend to claims arising out of the destruction of enemy war-making property through authorized American military action, and that it could not question the President’s designation of property as enemy war-making property and his determination to use military force to destroy such property. JA31.

The CFC declined to accept the other three theories that the government advanced in support of its motion to dismiss. As for the government’s argument that the Takings Clause does not apply to property abroad owned by a nonresident alien, the CFC considered itself bound by Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953), a decision that had applied the Takings Clause to property located on foreign territory owned at the time of the taking by a nonresident alien. JA21. Nevertheless, the CFC agreed with the conclusion of {p.6} Ashkir v. United States {33kb.html, 34kb.pdf}, 46 Fed. Cl. 438 (2000), that the Turney decision no longer has precedential value on this issue, JA19, and invited this Court to revisit the Turney holding in the event of an appeal. JA21.

The CFC also held that it had personal jurisdiction over El-Shifa under 28 U.S.C. § 2502(a), finding that Appellants had satisfied their prima facie burden of proving that a citizen of the United States could prosecute a claim against the government of Sudan in its courts. JA13-15. Finally, the CFC resisted the government’s admiralty argument and found it had subject matter jurisdiction, reasoning that El-Shifa had alleged a taking, not a tort, and that cruise missiles launched from a Naval vessel to strike an inland target do not possess the nexus to maritime commerce which gives rise to the exclusive admiralty jurisdiction of the federal district courts. JA15-17.

El-Shifa subsequently moved for reconsideration on the basis that the government had not answered the Complaint nor taken a position in its pleadings as to whether the facility was actually enemy war-making property. The CFC denied the motion, concluding that as a legal matter, it must defer to the President’s designation of the facility as an enemy war-making instrumentality. JA39-40. {p.7}

Summary of the Argument

The destruction of a military target by the armed forces of the United States in an authorized military action is outside the scope of the Fifth Amendment Takings Clause and is therefore noncompensable. Accordingly, the CFC correctly rejected El-Shifa’s takings claim for the destruction of the facility in a cruise missile strike launched on the orders of the President. JA9. The CFC also correctly held that it could not look behind the President’s designation of the facility as a military target. JA28. To do otherwise would improperly interfere with foreign affairs and war-making powers vested in the President by the Constitution. Even if it were assumed that the designation of the facility as a military target was a mistake, it would mean only that a tort outside the Tucker Act jurisdiction of the CFC had been committed.

Further, the Takings Clause may not be invoked by a nonresident alien with respect to property located outside the sovereign territory of the United States. Nonresident aliens, be they natural persons or corporations, lack standing to sue under the Takings Clause unless they or their property have a “substantial connection” with this country. Appellants and their property lack such a connection.

This court is also without subject matter jurisdiction over El-Shifa’s claim {p.8} under the Tucker Act because allegations challenging the lawfulness of the President’s targeting decision and attributing this allegedly mistaken decision to impropriety or carelessness on the part of government officials sound in tort. Furthermore, the maritime character of El-Shifa’s claim required it to be evaluated by the CFC as would a court sitting in admiralty, and the CFC should have held that the claim was subject to the exclusive admiralty jurisdiction of the federal district courts.

Finally, Appellants have not affirmatively demonstrated, as they must under 28 U.S.C. § 2502(a), that U.S. citizens enjoy reciprocal rights to prosecute claims against the Sudanese government in its courts on an equal footing with Sudanese nationals. While the Sudanese Constitution on its face appears to guarantee this right to foreign litigants, it has been suspended since 1999, rendering the right illusory.

Argument

Standard of Review

This Court reviews de novo decisions by the CFC to dismiss claims under RCFC 12. Khan v. United States {29kb.html, 27kb.html}, 201 F.3d 1375 (Fed. Cir. 2000). The subject matter jurisdiction of the CFC is a question of law that this Court reviews without deference. James M. Ellett Constr. Co. v. United States {43kb.html, 37kb.html}, 93 F.3d 1537, {p.9} 1541 (Fed. Cir. 1996).

I.
The CFC Held Correctly that the Destruction of a Military Target Designated by the President Falls Outside the Scope of the Takings Clause and that the Court May Not Look Behind this Designation.

A.  A Military Target Destroyed
During an Authorized Military Operation
Falls Outside the Scope of the Takings Clause
.

As the CFC correctly held, the destruction of enemy war-making property in an authorized military operation falls outside the scope of the Takings Clause. JA21, JA24. 3  This, the CFC concluded, is because the Takings Clause applies when the government exercises its civil power of eminent domain, but not when it exercises its constitutional war powers through the use of military force. Id.

The general principle underlying this conclusion is that property destroyed in an authorized military action by U.S. armed forces is not subject to the Takings Clause. This general principle, variously formulated, has been articulated in several cases arising from the destruction of private property by the {p.10} military during combat operations or as a result of the fortunes of war. The first such articulation appears to have been by this Court’s predecessor, the Court of Claims, in Perrin v. United States, 4 Ct. Cl. 543 (1868), aff’d, 79 U.S. (12 Wall.) 315 (1870).

In Perrin, the United States dispatched a warship to elicit recompense and a suitable apology from a band of wrongdoers who had usurped control of Greytown, Nicaragua and committed acts of violence against U.S. citizens and U.S. property located there. 4 Ct. Cl. at 545. Although the government of Nicaragua had failed to restrain or punish the wrongdoers, the U.S. and Nicaragua were not at war at the time. When the wrongdoers ignored repeated notice and failed to give the satisfaction demanded, the U.S. warship bombarded Greytown, destroying most of its buildings. Id. at 547. French citizens subsequently sought compensation for property located in Greytown destroyed during the bombardment. Id. at 546. The court rejected their claim and stated:

No government, except as a special favor bestowed, has ever paid for the property of even its own citizens in its own country destroyed in attacking or defending against a common public enemy; much less is any government bound to pay for the property of neutrals domiciled in the country of its enemy which its forces may chance to destroy in its operations against such enemy.

Id. at 547-48. {p.11}

The Supreme Court reiterated this general principle some years later.

The injury and destruction of private property caused by [Civil War armies], and by measures necessary for their safety and efficiency, were almost beyond calculation. For all injuries and destruction which followed necessarily from these causes no compensation could be claimed from the government. By the well-settled doctrines of public law it was not responsible for them. The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone, as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss.

United States v. Pacific R.R., 120 U.S. 227, 233-34 (1887).

Courts applying this general principle typically have had to distinguish between wartime exercises of the government’s civil eminent domain power (which are subject to the Takings Clause) and exercises of the government’s constitutional war powers through the use of military force (which are not). For at least the last 100 years, the decisions resulting from the application of this general principle have found the Takings Clause inapplicable where private property has been damaged or destroyed by the armed forces in attacking or {p.12} defending against the public enemy or in cases of imminent danger to the general welfare. See Nat’l Bd. of the YMCA v. United States, 395 U.S. 85 (1969) (denying recovery for destruction of and damage to buildings in which U.S. military forces took refuge while engaged in a pitched battle with a rioting mob); United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952) (denying compensation to oil companies for the Army’s demolition of their petroleum storage facilities in the Philippine Islands to preclude their takeover by the Japanese); Juragua Iron Co. (Ltd.) v. United States, 212 U.S. 297 (1909) denying recovery for the deliberate destruction by U.S. soldiers in the field of 66 buildings thought to contain the germs of an infectious disease); Castro v. United States, 500 F.2d 436 (Ct. Cl. 1974) (rejecting takings claim for coconut trees destroyed by U.S. military forces during the invasion of Saipan); Am. Mfrs. Mut. Ins. Co. v. United States, 453 F.2d 1380 (Ct. Cl. 1972) (holding noncompensable the intentional sinking of a ship by U.S. military forces defending themselves against an attack by rebels); Franco-Italian Packing Co. v. United States, 128 F. Supp. 408 (Ct. Cl. 1955) (denying compensation for losses, including destruction of cargo, occasioned by the Navy’s detention of tuna boats after the Japanese attack on Pearl Harbor); Gallego, Messa & Co. v. United States, 43 Ct. Cl. 444 (1908) (per curiam) (denying takings claim for use of and {p.13} damage to wharves and steamships seized by U.S. military forces during war with Spain).

This general principle is based on the fact that the destruction of property is an unavoidable consequence of the fortunes of war for which governments are not liable. Caltex, 344 U.S. at 155; Pacific R.R., 120 U.S. at 234; Am. Mfrs. Mut. Ins. Co., 453 F.2d at 1381. It is also based on the right of the sovereign to destroy the enemy’s property in the effort to weaken him and secure victory. The Brig Amy Warwick (“The Prize Cases”), 67 U.S. (2 Black) 635, 671 (1862). As the Supreme Court has observed, “[t]he length of a war depends largely upon the relative strength of the contending parties. As a rule, that belligerent is the first to surrender who first loses the elements of warlike power.” Haycraft v. United States, 89 U.S. 81, 95 (1874). If the Takings Clause applied to the destruction of property during authorized military operations, “the war powers conferred ... by the Constitution would be rendered nugatory and the Government would be placed in the attitude of being obliged to pay to its alien enemies money which could be used for its own destruction.” North German Lloyd v. United States, 61 Ct. Cl. 138, 141 (1925).

Application of the general principle also renders noncompensable the seizure and destruction of the enemy’s weapons and tools of war. See, e.g., {p.14} Young v. United States, 97 U.S. 39, 60 (1877) (“It has never been doubted that arms and munitions of war, however owned, may be seized by the conquering belligerent upon conquered territory”); Juragua Iron Co. v. United States, 42 Ct. Cl. 99, at 113 (1907) (“It would not be contended that a belligerent would not have the right, under the most humane usages of modern warfare, to destroy the property of the enemy for the purpose of protecting its army from artillery or musket fire”). This is because the very character of such property is hostile, and it is the “means by which [the enemy] hoped and expected to perpetuate their power.” Young, 97 U.S. at 59; see also Ford v. Surget, 97 U.S. 594, 605 (1878) (during the Civil War, cotton was “not only enemy, but hostile property”). The CFC termed such property “public enemy” property. JA28. By definition, it falls outside the scope of the Takings Clause, and its destruction by military forces is not compensable. 4  Cf. Ribas y Hijo v. United States, 194 U.S. 315, 322 (1904) (“The vessel was, therefore, to be deemed enemy’s property. It {p.15} was seized as property of that kind, for purposes of war, and not for any purpose of gain.”); Haycraft, 89 U.S. at 94 (cotton, which formed one of the Confederacy’s “main sinews of war” was at least “semi-public” property which could be captured or destroyed if necessary without compensation).

In the instant case, the President concluded that the facility was involved in the production of materials for chemical weapons, that it served to facilitate the efforts of terrorists affiliated with the bin Laden network which had 13 days earlier bombed two U.S. embassies in East Africa, and that it posed a continuing threat to U.S. lives. JA210, JA211. In short, the President determined that the facility was a military target and he ordered its destruction by U.S. military forces. As a military target, the destruction of the facility in an authorized military action by U.S. armed forces falls outside the scope of the Takings Clause and is therefore noncompensable.

Even if it were conceded that the facility was not a legitimate military target and its destruction was unnecessary, the Takings Clause would still be inapplicable. As the Supreme Court has held, private property wrongfully and unnecessarily destroyed in an authorized military action constitutes a tort of which the Court of Claims has no jurisdiction. Juragua, 212 U.S. at 389-90. In Juragua, the claimant sought to recover the value of 66 buildings in Cuba that {p.16} were destroyed by the U.S. military during the Spanish-American War. The local U.S. commander ordered the buildings burned because it was thought they might contain “fever germs” which could endanger the health of U.S. troops in the field. Although the claimant argued that the buildings were “purely nonmilitary in character,” “not in the pathway of hostilities,” “not destroyed to prevent [them] from falling into the hands of the enemy, or because [they] might become useful to the enemy,” and were the property of a loyal citizen, not an alien enemy, Juragua, 99 Ct. Cl. 103-04, the Supreme Court denied recovery on the basis of military necessity. Juragua, 212 U.S. at 309. The Court then stated that “even if it were conceded that its property was wrongfully and unnecessarily destroyed under the order of the general commanding the United States troops, the concession could mean nothing more, in any aspect of the case, than that a tort was committed by that officer in the interest of the United States. ... [O]f a cause of action arising from such a tort the court of claims could not take cognizance, whatever other redress was open to the plaintiff.” 212 U.S. at 390-91 {sic: 310}. See also Castelo v. United States, 51 Ct. Cl. 221, 227 (1916) (even if seizure by U.S. Army of ship believed to be transporting contraband was mistaken, claim for recovery sounded in tort and was outside of court’s Tucker Act jurisdiction). {p.17}

El-Shifa assert that there is no military conduct exception to the Takings Clause that would render the destruction of the facility noncompensable. App. Br. at 23-35. This assertion is based on an incomplete reading of the CFC opinion and misunderstanding of the scope of the Takings Clause.

El-Shifa point to one sentence in the CFC opinion, and from this sentence infer a “categorical rule” which they claim defines the principle applied by the lower court to decide the case. 5  App. Br. at 23. The “categorical rule” is that the Takings Clause does not apply to property destroyed by military conduct. Id. El-Shifa’s reading of the lower court opinion is at best incomplete. The “categorical rule” that Appellants infer from this particular sentence of the CFC’s opinion is not the holding of the opinion nor does it capture the general principle the CFC applied to dismiss their Complaint.

The lower court stated its holding as follows:

We thus conclude that the right to compensation for a taking does not extend to the destruction of property designated by the President as enemy war-making property, and that the Court may not look behind the President’s discharge of his Constitutional duties as Commander in Chief, including his declaration of what constitutes an enemy target and his determination to use military force to destroy that target. {p.18}

JA31. The rule or principle to be derived from this holding is that the destruction of enemy property in an authorized military action under the President’s constitutional war powers is beyond the purview of the Takings Clause.

El-Shifa nevertheless proceed to knock down their “categorical rule” straw man. El-Shifa’s primary assertion is that courts frequently apply the Takings Clause to property destroyed by military conduct, App. Br. at 26, and in a few cases have awarded compensation to the owners of such property. App. Br. at 28. Undoubtedly, takings claims have been brought as the result of property damaged or destroyed by the military, and courts have entertained these claims. But that is not the point. El-Shifa have not cited, nor is the government aware of, any case in which compensation under the Takings Clause was awarded for the deliberate destruction of enemy property by authorized military force in attacking or defending against a public enemy or in cases of imminent danger to the general welfare.

The cases that El-Shifa cite as examples of successful claims for the destruction of property by military conduct do not provide applicable precedent; the holdings of two of the cases are no longer good law, and the third case is distinguishable. In Case of Wiggins, 3 Ct. Cl. 412 (1867), a U.S. Naval {p.19} commander, believing that “marauders and freebooters” inhabiting a town he had previously bombarded would seek revenge by setting afire a warehouse containing a store of gunpowder, cast the powder into the bay. In Grant v. United States, 1 Ct. Cl. 41 (1863), a U.S. Army captain ordered the destruction of private property consisting of mills, dwelling houses and storehouses when he withdrew from hostile territory. The Court of Claims subsequently noted that the claim in both cases was for property destroyed to prevent it from falling into the hands of the enemy. Perrin, 4 Ct. Cl. at 547. The holding in both cases, that a compensable taking occurs when property is destroyed by the military to prevent it from falling into the hands of the enemy, has been overturned. Caltex, 344 U.S. 149. In Baras Plantation Co. v. United States, 105 F. Supp. 1003 (Ct. Cl. 1952), the property for which compensation was sought, 1,349 palm trees, was removed by the military to build bridges, a pier, building foundations and the like. It was clear that their destruction did not occur during operations in attacking or defending against the enemy, nor was it occasioned by an imminent threat to U.S. troops or U.S. citizens. The case falls within the accepted proposition that private property requisitioned by the military for its use or consumption during wartime is subject to the Takings Clause. See 93 C.J.S. War and National Defense § 15 (2001). {p.20}

El-Shifa further assert that the cases upon which the CFC relied for the categorical rule they claim it applied actually made use of three doctrines — the “enemy property doctrine,” the “collateral damage doctrine” and the “military necessity doctrine” — that they argue do not bar their claim. App. Br. at 29-35. ¶

The flaw in this assertion is threefold. First, it ignores the CFC’s holding and analysis. The CFC found that the instant case does not deal with the destruction of private property by the armed forces in situations where such destruction has been found noncompensable under the “military necessity,” “collateral damage” or “enemy property” doctrines. JA23. Rather, the CFC concluded that this case deals with the destruction of a military target and thus falls outside the scope of the Fifth Amendment. JA23-24.

Second, El-Shifa’s assertion is based on the assumption that, unless one of the three doctrines they identify carves out an exception, the Takings Clause applies to all activities of the military at all times. See App. Br. at 15-16 (“It is well-settled that the Takings Clause applies not only to the appropriation of property under the eminent domain power, but also the destruction of property under other governmental powers.”). This assumption is incorrect. “The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war.” {p.21} Caltex, 344 U.S. at 155. Where the nation’s armed forces destroy a military target in an authorized combat operation, the Takings Clause does not constrain the exercise of the war powers. See Franco-Italian Packing Co., 128 F. Supp. at 413-416 (Navy’s exercise of executive branch war powers in detaining fishing boats did not deprive the claimant of any property within the meaning of the Fifth Amendment); Deutsch-Australische Dampfschiffs Gesellschaft v. United States, 59 Ct. Cl. 450, 455 (1924) (“...the limitations or restrictions of the Fifth Amendment do not affect the exercise of the war power conferred upon Congress when enemy property is taken.”); cf. United States v. Chemical Foundation, 272 U.S. 1, 11 (1926) (no constitutional prohibition on the confiscation of enemy property).

Third, even if the destroyed facility was assumed to be private property, both the military necessity doctrine and the enemy property doctrine would apply, making the destruction of the facility noncompensable. The military necessity doctrine absolves the government of liability for the destruction of private property in necessary military operations in attacking or defending against enemy forces, Am. Mfrs. Mut. Ins. Co., 453 F.2d at 1381, to protect the health and lives of soldiers in the field, Juragua, 212 U.S. at 309, or in cases of imminent danger to the general welfare. Franco-Italian Packing Co., 128 F. {p.22} Supp. at 413. The President explained that the missile strike on the facility was necessary “because of the imminent threat [it] presented to our national security,” JA206, to “counter an immediate threat from the bin Laden network,” id., and to prevent an “imminent threat of further terrorist attacks against U.S. personnel and facilities,” JA210. The President also explained that the facility was affiliated with a network of radical groups affiliated with bin Laden who had targeted and killed innocent Americans. JA206. These statements, which establish the imminence of the threat to U.S. lives, plainly satisfy the criteria for application of the military necessity doctrine.

Under the enemy property doctrine, all property located in enemy territory, regardless of its ownership, is in time of war deemed to be enemy property subject to seizure or destruction. Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391 (Ct. Cl. 1970). That the U.S. was not formally at war with Sudan at the time of the missile strike does not preclude application of the enemy property doctrine. As the CFC noted, a formal declaration of war is not necessary for the President to exercise his constitutional authority to prosecute an armed conflict, especially when the U.S. has been attacked. JA28 (citing The Prize Cases, 67 U.S. (2 Black) 635); see also Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800). That the target of the missile strike was affiliated with an international terrorist network {p.23} and not a sovereign country also does not preclude application of the enemy property doctrine. Terrorism crosses national borders, enemy territory need not be coextensive with national boundaries, and an act of war need not be directed against a nation state. See Perrin, 4 Ct. Cl. 543. Further, Sudan’s relations with the United States must be taken into account in assessing El-Shifa’s assertion that its facility was located in the territory of a friendly nation. 6  See Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 112 (2d Cir.), cert. denied, 385 U.S. 898 (1966) (“The founders could not have meant to tie one of the nation’s hands behind its back by requiring it to treat as a friend a country which has launched a campaign of subversion throughout the Western hemisphere.”).

The President’s designation of the facility as an imminent threat to U.S. lives, property and national security affiliated with a terrorist network that had attacked the U.S. and threatened to do so again, as well as its location within Sudan — a country that has long hosted and provided support for this terrorist {p.24} network — qualified the facility as property within enemy territory and hence under the laws of war subject to destruction without compensation.

El-Shifa’s assertions notwithstanding, the CFC’s analysis of the relevant case law fully supports its holding that the destruction of the facility as a military target by the armed forces in an authorized combat operation falls beyond the scope of the Takings Clause and is therefore outside the CFC’s jurisdiction. Alternatively, even if the facility were assumed to be private property, the U.S. is absolved of any obligation under the Fifth Amendment for the facility’s destruction under the military necessity and enemy property doctrines.

B.  The Judiciary May Not Look Behind
the President’s Designation of the El-Shifa Facility
as a Military Target
.

The CFC held correctly that the President, pursuant to his constitutional war powers, may designate an enemy war-making instrumentality for the purpose of applying military force or engaging in combat activities, JA29, and that the judiciary may not look behind such designation even where a claimant contends that the designation was mistaken. JA28, JA31.

Four arguments support the CFC’s holding. First, the President’s determination that a threat to national security exists and warrants a military response is conclusive. Second, the President’s fact findings, reasons, motives and judgment for that determination are unreviewable. Third, the political {p.25} question doctrine commits such determinations exclusively to the political branches and renders them nonjusticiable. Fourth, unless El-Shifa accept both the correctness and the lawfulness of the President’s determination that their facility constituted a legitimate military target, they fail to state a valid takings cause of action within the jurisdiction of this Court.

1.  The President’s Designation of El-Shifa as a Military Target is Conclusive.

Just as the President may conclusively recognize when a state of war exists, The Prize Cases, 67 U.S. (2 Black) at 668, or what constitutes hostile territory, Hefleblower v. United States, 21 Ct. Cl. 228, 238 (1886), so too may he designate an enemy military target. The President’s power to do so flows from his constitutional authority as Commander in Chief and as the Nation’s organ in foreign affairs. See U.S. Const. Art. II, § 2; Dames & Moore v. Regan, 453 U.S. 654, 660-61 (1981); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); see generally, R. Delahunty and J. Yoo, The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, 25 Harv. J.L. & Pub. Pol’y 488 (2002). Once he has designated a military target, his determination is unreviewable. For in exercising his constitutional war powers, the President is “necessarily constituted the judge of the existence of the {p.26} exigency in the first instance and is bound to act according to his belief of the facts.” Martin v. Mott, 25 U.S. (12 Wheat.) 19, 31 (1827): see also The Prize Cases, 67 U.S. (2 Black) at 670; Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874); Waller v. United States, 78 F. Supp. 816, 819-20 (Ct. Cl. 1948). He is the only person who can determine the degree of force necessary to respond to an attack. The Prize Cases, 67 U.S. (2 Black) at 670. When he does respond, it is not the function of the courts to question his decision. Johnson v. Eisentrager, 399 U.S. 763, 789 (1950). Rather, they are obliged to “follow and adopt” his actions. Perrin, 4 Ct. Cl. at 547.

2.  The President’s Fact Findings, Motives, Reasoning and Judgment Behind His Designation of the El-Shifa Facility as a Military Target are Not Subject to Judicial Review.

Not only is the President’s designation of the facility as a military target conclusive, but his fact findings, motives, reasoning and judgment behind that conclusion are not subject to review. As the Supreme Court has stated:

It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review.

United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940). The explanation for this judicial rule is that the public officer’s determination is a {p.27} “‘multifaceted judgmental decision,’ for which there is ‘no law to apply.’” Florsheim Shoe Co. v. United States, 744 F.2d 787, 796 (Fed. Cir. 1984). Once a court decides that a public officer had congressional authority for his action, “his motives, his reasoning, his finding of facts requiring the action, and his judgment, are immune from judicial scrutiny.” United States Cane Sugar Refiners’ Ass’n v. Block, 683 F.2d 399, 404 (C.C.P.A. 1982).

The principles that underlie the immunity from judicial review afforded an executive branch decision made pursuant to a grant of discretionary statutory authority apply with even greater force when such a decision is made pursuant to a grant of constitutional authority, see, e.g., Hirabayashi v. United States, 320 U.S. 81, 93 (1943), and when that decision is made by the President as opposed to a subordinate cabinet official. See Dalton v. Specter, 511 U.S. 462, 476 (1994).

The President’s decision to order a missile strike against the facility was made pursuant to his constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. JA210. For the Court to probe the motives, reasoning or judgment behind the President’s order or the facts on which he based it “would amount to a clear invasion of the ... executive domain[].” George S. Bush & Co., 310 U.S. at 380. {p.28}

3.  The Political Question Doctrine Renders Nonjusticiable the President’s Designation of the El-Shifa Facility as a Military Target.

The political question doctrine arises from two key constitutional principles: the separation of powers among the three coordinate branches and the inherent limits of judicial abilities. Baker v. Carr, 369 U.S. 186, 210 (1962). In Baker, the Supreme Court listed several factors for courts to consider in determining whether the political question doctrine is applicable to a particular controversy. Id. at 217. If any of these factors are present, then dismissal for nonjusticiability is appropriate. Id. In this case, at least four of the Baker factors are present.

First, the text of the Constitution explicitly and exclusively confers upon the President the role of Commander in Chief and Chief Executive. U.S. Const. Art. II, §§ 1, 2; see also DaCosta v. Laird, 471 F.2d 1146, 1154 (2d Cir. 1973) (Article II, § 2 of the Constitution is a “specific textual commitment of decision-making responsibility in the area of military operations in a theatre of war to the President, in his capacity as Commander in Chief). It also grants him dominant authority over foreign affairs. Curtiss-Wright Export Corp., 299 U.S. at 320. It is under these authorities that the President identified the facility as a military target and ordered its destruction. JA210. Conversely, the Constitution reposits no war powers in the judiciary, Hamdi v. Rumsfeld {208kb.pdf}, 316 F.3d 450, 463 (4th Cir. 2003) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}, {p.29} and grants it only a limited role in foreign affairs. Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).

El-Shifa’s takings claim challenges the factual basis for the President’s designation of the facility as a military target and his justification for ordering its destruction. To determine liability, this Court would have to evaluate the President’s factual conclusions that an international terrorist organization with a presence in Sudan was responsible for the bombing of two U.S. Embassies in East Africa, and that a military response against a facility involved in the production of chemical weapons and affiliated with that terrorist organization was required to deter imminent additional attacks on Americans. This Court also would have to assess whether the President’s decision to order the missile strike was justified as an action based on the nation’s inherent right of self-defense. Each of these inquiries would seriously intrude upon powers constitutionally committed to the President. Cf. Chang v. United States, 859 F.2d 893, 896 n.3 (Fed. Cir. 1988) (“[T]o the extent that the plaintiffs’ inquiry into the ‘true facts’ of the Libyan crisis would seek to examine the President’s motives and justifications for declaring a national emergency, such an inquiry would likely present a nonjusticiable political question.”).

Instructive on the application of the political question doctrine to this case is {p.30} Ingenio Porvenir v. United States, 70 Ct. Cl. 735 (1930), which involved a claim for compensation arising from actions of the U.S. military government in the Republic of Santo Domingo during that country’s occupation by U.S. armed forces. With approval of the U.S. military governor, the claimants’ sugar had been requisitioned. Before it was released, it had fallen greatly in value for which claimants sought compensation. The Court of Claims rejected plaintiffs’ claims on political question grounds, observing that the claims were based on the action of the U.S. military forces acting under the direction of the President. Id. at 793.

Under the Constitution the President is the Commander-in-Chief of the Army and Navy, and this court has no jurisdiction to review his acts in exercising the power so granted in a foreign country and base a judgment thereon. The acts which are claimed to fix a liability on the defendant were done under the orders of the President and occurred in a foreign country. The policy which he adopted and the acts done pursuant thereto were matters of state and wholly within his discretion.

Id. at 739. 7 

Second, judicially discoverable and manageable standards are lacking to weigh the intelligence information, advice, and other foreign policy and national security considerations that informed the President’s decision to order the missile strike. As the Supreme Court has stated: {p.31}

[E]ven if courts could require full disclosure [of intelligence information], the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confined by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.

Chicago & Southern Air Lines, 333 U.S. at 111. As the CFC recognized, there are simply no judicially discoverable or manageable standards for reviewing the President’s determination that the facility posed an imminent threat to national security, JA28, or his justification for ordering its destruction by U.S. military forces. Cf., Belk v. United States, 858 F.2d 706, 710 (Fed. Cir. 1988): see also Aktepe v. United States, 105 F.3d 1400 (11th Cir. 1997) {16kb.html, 22kb.pdf} (no judicially discoverable and manageable standards for resolving questions raised by negligence suit arising from injuries and deaths which occurred when Turkish destroyer was struck by live missiles fired by U.S. warship during naval exercise).

Third, it would be impossible for this Court to undertake an independent resolution of El-Shifa’s claim without suggesting a lack of respect for the unique constitutional role of the President. In a public address to the nation and in a letter to Congress, the President stated that he ordered the missile strike against {p.32} the facility because of the imminent threat it presented to American lives and to prevent and deter additional attacks. JA206, JA210. Resolving El-Shifa’s claim in their favor would detract from the credibility of these executive branch statements and unacceptably intrude into the foreign policy and national security determinations of the President. See, e.g., Belk, 858 F.2d at 710. A judicial award of compensation to El-Shifa would also run counter to, and undermine, the President’s foreign policy determinations and military orders in this case, and would evince a lack of respect for those determinations and orders. Cf. Gilligan v. Morgan, 413 U.S. 1 (1973).

Fourth, the delicate diplomatic balance that is required in the foreign affairs arena would undoubtedly be upset by a decision of this Court awarding just compensation to El-Shifa. The President publicly stated that his action in ordering the military strike against the facility was pursuant to his constitutional authorities and consistent with international law. JA210. He also publicly declared that the facility served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives. Id. The government can only have one voice when it speaks in the national security sphere. A pronouncement by this Court that the military strikes resulted in a Fifth Amendment taking would likely be {p.33} interpreted as a determination that the President’s actions were mistaken if not unlawful, create confusion regarding our foreign policy, and weaken the President’s constitutional authority over foreign affairs. See Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 600 (D.D.C. 1983), aff’d on other grounds, 770 F.2d 202 (D.C. Cir. 1985).

El-Shifa assert that the political question doctrine is inapplicable because “there is no textually demonstrable commitment in the Constitution of the question of the enemy status of property under the Takings Clause to the Executive Branch.” App. Br. at 38. El-Shifa’s formulation masks the real issue. The text of the Constitution vests the President with the executive power, makes him Commander in Chief of the Armed Forces, and accords him a dominant role in foreign affairs. It is pursuant to these textually elucidated powers that he designated the facility as a military target and ordered its destruction. JA210. Thus, while the review of takings claims may be a quintessentially judicial function, the President’s designation of a military target is not. Such a targeting decision raises political questions that are nonjusticiable.

4.  To State a Valid Takings Cause of Action, El-Shifa Must Litigate Their Claim on the Basis that the President’s Designation of Their Facility as a Military Target was Correct and Lawful.

The CFC found that El-Shifa’s allegations challenged the factual {p.34} premises for the President’s determination that the facility constituted a legitimate military target and his “justification, if not his authority” for ordering its destruction. JA23. The CFC concluded that accepting El-Shifa’s allegations as true would strip their Complaint of the threshold requirements for a valid takings cause of action. JA25. This is because to state a valid takings claim, a plaintiff must accept that the government’s action was legally authorized, Del-Rio Drilling Programs v. United States {78kb.html, 41kb.html}, 146 F.3d 1358 (Fed. Cir. 1998), and that any governmental determination underlying such action is lawful and correct. Rith Energy v. United States {35kb.html}, 247 F.3d 1355 (Fed. Cir.), reh’g denied {32kb.html}, 270 F.3d 1347 (Fed. Cir. 2001), cert. denied, 536 U.S. 958 (2002).

El-Shifa attempt to refute the CFC’s conclusion by relying exclusively on Del-Rio’s holding that only the authority of the government action need be acknowledged to state a takings claim. App. Br. at 36 n.1. However, this Court clarified the scope and limitation of Del-Rio (and its inapplicability to this case) in the later Rith opinion.

In Rith, the plaintiff filed a takings claim after federal permits it had obtained from the United States Department of the Interior (“DOI”) to conduct mining operations were suspended due to the high levels of potentially toxic material on its property that could pollute the area groundwater. When Rith was {p.35} unable to devise a satisfactory plan to address the acid mine drainage problem, Rith’s request to revise its mining permit was denied and it was unable to conduct any more mining at the site. Rith argued that it should be allowed to challenge in the CFC the lawfulness of the DOI’s determination regarding the toxicity risk posed by its operations. 247 F.3d at 1365. This Court rejected that argument, stating that Rith (as El-Shifa here) “reads too much into Del-Rio.” Id.

As the issue in Rith dealt with a question beyond the mere scope of property rights, namely whether Rith’s mining was harmful and a danger to public health, this Court would not let Rith challenge the correctness of the DOI’s determination before the CFC. Id. Thus, because Rith had not successfully challenged the DOI’s determination at either the administrative or district court level, it was “required to litigate its takings claim on the assumption that the administrative action was both authorized and lawful.” Id. at 1366. This Court explained that the consequences of assuming the lawfulness of the government’s action — that DOI was correct in concluding that Rith’s mining activities constituted an unacceptable threat of acid mine drainage and the consequent pollution of groundwater in the area surrounding the mine operations — was to “limit[] the issue before us to whether prohibiting Rith from mining under those circumstances constitutes a taking.” Id. {p.36}

In the instant case, the consequences of assuming the lawfulness of the government’s action — that the President correctly concluded that the facility was a legitimate military target — limits the question before this Court to whether the destruction of that military target in an authorized combat operation constitutes a taking.

On rehearing, Rith clarified that “in a takings case we assume that the underlying governmental action was lawful” and held that “Rith’s complaints about the wrongfulness of [DOI’s action] are therefore not properly presented in the context of a takings claim.” Rith, 270 F.3d at 1352.

Here, El-Shifa challenge the correctness of the President’s determination that the facility was a legitimate military target. Rith held that such challenges to the lawfulness of government action cannot be made in a takings claim. Accordingly, El-Shifa must either litigate their takings claim on the assumption that the President’s determination was both lawful and correct, or pursue their action in some other forum.

II.
The Takings Clause Does Not Apply to Foreign-Owned Property Located Outside the Sovereign Territory of the United States.

The Takings Clause does not apply to property located abroad and owned by a nonresident alien who lacks any substantial connection to the United States. {p.37} While the CFC felt compelled to reject this argument in support of the government’s motion to dismiss because of Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953), the lower court indicated that the government “is probably correct,” JA17, and indicated that the strength of Turney as precedent for the application of the Takings Clause to foreign-owned property located abroad had been eroded, if not “severely undercut,” by subsequent Supreme Court decisions. JA19-20. In the event of an appeal, it invited this Court to revisit the Turney holding. JA21.

The Takings Clause applies to foreign-owned property located within the United States, Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-92 (1931), and to property abroad owned by U.S. citizens. Langenegger v. United States, 756 F.2d 1565, 1570 (Fed. Cir.), cert. denied. 474 U.S. 824 (1985). For the proposition that the Takings Clause also applies to foreign-owned property located on foreign territory, El-Shifa rest on Turney.

In Turney, the Court of Claims considered a claim for compensation brought by a dissolved Philippine corporation’s U.S. liquidator that arose from the repossession by the United States government of sensitive radar equipment. Turney, 115 F. Supp. at 458-61. After the corporate buyer made a bulk purchase of surplus material, the United States realized that the sale had inadvertently {p.38} included sensitive radar equipment. The U.S. then induced the Philippine government to embargo the radar equipment. Shortly thereafter, the radar equipment was returned to the U.S. Id.

Relying on a case holding the Takings Clause applicable to property in the U.S. owned by a nonresident alien, and a case holding the Takings Clause applicable to property on foreign territory owned by a U.S. citizen, the Turney court suggests — in a brief paragraph devoid of any reasoning — that the Fifth Amendment may be applied to the taking of property abroad owned by a foreign national. The court simply agreed with the plaintiff’s contention that since the Takings Clause could be applied to a taking abroad of foreign-owned property “without inconvenience or practical difficulty,” it should be so applied. Turney, 115 F. Supp. at 464.

Turney is distinguishable on the grounds that the takings claim of the plaintiff was asserted not by the dissolved foreign Philippine corporation but by its liquidating trustee, a U.S. citizen. See Turney, 115 F. Supp. at 461. This distinction has been recognized and adopted by three lower courts. Rosner v. United States {1435kb.pdf}, 231 F. Supp.2d 1202, 1213 (S.D. Fla. 2002); Ashkir v. United States {33kb.html, 34kb.pdf}, 46 Fed. Cl. 438, 440 (2000); Williams v. Blount, 314 F. Supp. 1356, 1364 (D.D.C. 1970). It is a distinction supported by the precept that a dissolved {p.39} corporation may not maintain a takings claim. See, e.g., Federal Realty Estate & Storage Co. v. United States, 79 Ct. Cl. 667 (1933) (holding that upon the dissolution of a corporation, legal title to its assets passes to its shareholders by whom suit can be filed for compensation for the alleged taking of those assets by the government). 8 

Moreover, the Turney holding itself has been undermined by the Supreme Court’s subsequent decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In Verdugo-Urquidez, the Supreme Court held that a Mexican resident could not rely on the Fourth Amendment in seeking to exclude evidence obtained in a warrantless search of his Mexican home by American authorities. In so holding, the Supreme Court made clear that not all constitutional provisions apply when the U.S. government exercises it powers abroad, id., at 268-69, and that aliens only receive constitutional protections when they come within the territory of the United States and develop substantial connections with this country. Id. at 271. Explicitly relying upon Johnson v. Eisentrager, 339 U.S. 763 (1950), the Verdugo-Urquidez Court stated that “we have rejected the {p.40} claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Id. at 269. While Eisentrager dealt with the due process clause of the Fifth Amendment, the Verdugo-Urquidez language flatly rejecting the extraterritorial application of the Fifth Amendment contradicts Turney’s casual conclusion. 9 

The Verdugo-Urquidez statements rejecting the extraterritorial application of the Fifth Amendment were essential to the holding of the case. This has been recognized by three lowers courts which have explicitly relied upon Verdugo-Urquidez to reject the extraterritorial application of the Takings Clause to foreign-owned property. 10 

In Hoffman v. United States {62kb.pdf}, 53 F. Supp.2d 483 (D.D.C. 1999), aff’d, 17 Fed.Appx. 980, 986 (Fed. Cir. 2001) (unpublished table disposition), cert. {p.41} denied, 535 U.S. 1112 (2002), the district court held that plaintiffs, who were nonresident foreign citizens, had failed to establish any relationship with the U.S. that could be characterized as “substantial connections.” Id. at 491. Thus, they could not prevail on their Fifth Amendment claim for compensation in connection with the U.S. Army’s alleged 1945 seizure of photographic archives located in Germany. Id.

In Ashkir {33kb.html, 34kb.pdf}, 46 Fed. Cl. 438, the CFC rejected a takings claim by a citizen and resident of Somalia for the physical occupation and destruction of his property in Mogadishu by U.S. armed forces. The Ashkir court determined that the relevant case law premises standing to invoke the Takings Clause on a “substantial connection” between the United States and either the claimant or the property involved in the takings claim. Id. at 440. The court identified three forms of substantial connection: the claimant’s U.S. citizenship, his residency within the United States, and the location of his property within the sovereign jurisdiction of the United States. Id. at 444. Because neither the plaintiff nor his property possessed the requisite substantial connection with the United States, the Ashkir court held that the plaintiff could not invoke the Takings Clause. Id. at 444-45.

In Rosner v. United States {1435kb.pdf}, 231 F. Supp.2d 1202 (S.D. Fla. 2002), the {p.42} district court rejected a takings claim by Hungarian Jews whose property (gold, silver, gems and other personal valuables) had been confiscated during World War II by the pro-Nazi Hungarian government. Subsequently, the U.S. Army in Austria intercepted a Germany-bound train loaded with the property and allegedly disposed of it after determining that it was impossible to identify the individual owners. The court found that the plaintiffs at the time of the alleged taking were non-citizens who lacked any substantial connection to the United States, and thus concluded that they could not state a takings claim under the Fifth Amendment. Id. at 1214.

Turney is distinguishable on the grounds of the claimant’s U.S. citizenship. Moreover, the Supreme Court’s subsequent decision in Verdugo-Urquidez — and lower court cases that rely on its rejection of the extraterritorial application of the Fifth Amendment — establish that a nonresident alien with no substantial connection to the United States cannot invoke the Takings Clause with respect to property overseas. Accordingly, the Verdugo-Urquidez statements delimiting the constitutional protections afforded non-resident aliens under the Fifth Amendment should be determinative that Turney is no longer good law, and this Court should reject the attempt by a Sudanese corporation and its Saudi-Sudanese owner, neither with any substantial connection to the United {p.43} States, to obtain just compensation for the destruction of a facility located in Sudan.

III.
The Court Is Without Subject Matter Jurisdiction
of El-Shifa’s Claim.

The CFC erred in holding that it had subject matter jurisdiction of El-Shifa’s takings claim. The claim sounds in tort and is therefore explicitly excluded from the CFC’s Tucker Act jurisdiction. 28 U.S.C. § 1491(a). Further, the claim is maritime in character and thus subject to the exclusive admiralty jurisdiction of the federal district courts.

A.  El-Shifa’s Claim Sounds in Tort.

Despite the takings label that El-Shifa attach to their Complaint, at bottom their claim is that the government mistakenly identified the facility as a military target and unnecessarily and without legitimate justification destroyed it. Claims based on negligent or careless performance of a duty allegedly owed sound in tort. Somali Development Bank v. United States, 508 F.2d 817, 821 (Ct. Cl. 1974). Claims based on the wrongful and unnecessary destruction of property during wartime also sound in tort, Juragua, 212 U.S. at 309, as do claims for the unlawful destruction of property based on the alleged impropriety of the acts of government officials. Montego Bay Imports, Ltd. v. United States, 10 Cl. Ct. 806, 808 (1986). That Appellants have styled their Complaint as a takings claim {p.44} is not dispositive. Although the CFC must generally assume the truth of unchallenged facts when deciding its subject matter jurisdiction, it is not required to accept a plaintiff’s framing of its legal theory. See Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004 (1989); Maier v. Orr, 754 F.2d 973, 982 (Fed. Cir. 1985) (“we look to the true nature of the action in the district court in determining jurisdiction of an appeal”). Nor is it bound by the labels selected by the parties to characterize their action. See Mason v. United States, 615 F.2d 1343, 1345-56 (Ct. Cl. 1980). Instead, the court should look to the plaintiff’s factual allegations to ascertain the true nature of the claims, id., as well as matters outside the pleadings if necessary. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287-88 n.10 (1938). Furthermore, a claim is not defined by the underlying theory of recovery, but by the operative facts from which it arises. Teegarden v. United States {29kb.html}, 42 Fed. Cl. 252, 255 n.3 (1998) (citing Keene Corp. v. United States, 508 U.S. 200, 212 (1993)).

Here, the allegations of the Complaint together with the operative facts from which this case arises indicate that this Court is confronted with a tort, not a taking. See Herrera Nephews v. United States, 43 Ct. Cl. 430, 440-41 (1908) (claims calling into doubt the military necessity of the seizure of a vessel or contesting that the seizure took place during a state of war are claims sounding in {p.45} tort and outside court’s jurisdiction), aff’d, 222 U.S. 558 (1912); Ribas y Hijo, 194 U.S. 315 (same); Juragua, 212 U.S. at 309-10 (claims calling into doubt the military necessity of a taking or the state of war that entitles U.S. to enemy property defense are claims sounding in tort and outside court’s jurisdiction); Am. Mfrs. Mut. Ins. Co., 453 F.2d at 1382 (claim for vessel destroyed by return fire of U.S. Army appears to sound in tort of which court has no jurisdiction); Castelo, 51 Ct. Cl. at 227 (seizure of vessel during hostilities constituted a tort of which court had no jurisdiction). In consequence, El-Shifa’s claim is not within the Court’s Tucker Act jurisdiction.

B.  El-Shifa’s Claim is Maritime in Character
and Subject to the Exclusive Admiralty Jurisdiction
of the Federal District Courts
.

The CFC is precluded from entertaining maritime actions even though they might otherwise be cognizable under the terms of the Tucker Act. Skibsaktieselskapet Siljestad v. United States, 180 F. Supp. 957, 958 (Ct. Cl. 1960). When confronted with a claim that has maritime elements, the Court of Claims has held that “it is our responsibility to view the facts as would a court of admiralty. If admiralty jurisdiction is found to exist, we must transfer the case to its proper forum.” Alaska Barge & Transport, Inc. v. United States, 373 F.2d 967, 970 (Ct. Cl. 1967).

The maritime element of El-Shifa’s claim is based on the undisputed fact {p.46} that U.S. Naval vessels on the high seas launched the cruise missiles that destroyed the facility. JA45. Under the Admiralty Jurisdiction Extension Act,

[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.

46 U.S.C. App. § 740 (emphasis supplied) (hereinafter “AJEA”).

Application of the test for the exclusive admiralty jurisdiction of the federal district courts over torts set forth in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) conclusively removes El-Shifa’s claim from the CFC’s purview. This test provides that a tort is subject to admiralty jurisdiction if it satisfies conditions both of location and connection with maritime activity. Id. at 534.

1.  The Location Test is Satisfied Because the Destruction of the El-Shifa Facility was Caused by a Vessel on Navigable Waters.

The Grubart location test requires that the tort occur on navigable water or the injury suffered on land be caused by a vessel on navigable water. Grubart, at 534. It is undisputed that the injury for which compensation is sought occurred on land, and that it was caused by cruise missiles launched from Naval vessels {p.47} on navigable waters. 11  Under Grubart, the question is therefore whether a cruise missile is an appurtenance of a Naval vessel. Id. at 535. The answer is yes. See United States v. Dewey, 188 U.S. 254, 268 (1903) (finding that a warship’s appurtenances include its armament and everything attached to or on board in aid of its operations); Anderson v. United States {28kb.html, 107kb.pdf}, 317 F.3d 1235, 1238 & n.4 (11th Cir. 2003) (finding that an aircraft carrier’s appurtenances include the aircraft it launches), petition for cert. filed, 71 U.S.L.W. 3791 (U.S. Apr. 7, 2003).

The cruise missiles that destroyed the facility were the primary land attack armament of the warships that launched them. 12  They were also essential to the warships’ military purpose. That they were “powered by a jet engine, ... guided not by the launching vessel on navigable waters, but rather by continual in-flight adjustments, based on Global Positioning Satellite data, as [they] navigate[d] along a pre-programmed route,” JA16, does not disqualify them. See Anderson, 317 F.3d 1235. {p.48}

In Anderson, the plaintiff was injured when an aircraft launched from an aircraft carrier during a training mission released two bombs that missed their land-based target and impacted near Anderson’s work site. Id. at 1236. The court held that the aircraft was an appurtenance to the carrier at the time of Anderson’s injuries. Id. at 1238. In reaching this conclusion, the court noted the following definition of an appurtenance: “any specifically identifiable item that is destined for use aboard a specifically identifiable vessel and is essential to the vessel’s navigation, operation, or mission.” Id. The court found that the aircraft was assigned to the carrier and was housed on the ship, that its operations were controlled in large measure by personnel aboard the carrier, and that, at the time Anderson was injured, the aircraft was carrying out the carrier’s mission. Id. Similarly, the cruise missiles that destroyed the facility were housed on warships prior to their launch, were controlled by personnel aboard those warships, and were carrying out the mission of those warships when they destroyed the facility. 13  Accordingly, the cruise missiles were appurtenances of the warships that launched them, and the Grubart location test is met. {p.49}

2.  The Maritime Connection Test is Satisfied Because the Firing of Cruise Missiles from a Naval Vessel has a Potentially Disruptive Impact on Maritime Commerce and has a Substantial Relationship to a Traditional Maritime Activity.

The Grubart maritime connection test requires that the activity giving rise to the incident have “a potentially disruptive impact on maritime commerce” and its “general character ... show[] a substantial relationship to traditional maritime activity.” Grubart, 513 U.S. at 534. The first prong of this test hinges not on the actual effects of the incident on maritime commerce, but rather on its potential effects. Id. at 538; Sisson v. Ruby, 497 U.S. 358, 363 (1990).

The general features of firing a cruise missile from a warship plainly has a potentially disruptive impact on maritime commerce. The movement of the warship prior to, during, and after the launch of the cruise missiles may disrupt maritime commerce by occupying sea lanes or maneuvering in navigable waterways. Further, the target of a warship-launched cruise missile may be port structures (e.g., wharves, piers and warehouses), the destruction of which could disrupt maritime commerce. The target could also be another vessel which, if struck, could obstruct commercial navigation. This not unlike what happened in T. J. Falgout Boats. Inc. v. United States, 508 F.2d 855 (9th Cir. 1974), cert. denied, 421 U.S. 1000 (1975), where a commercial vessel was struck accidentally by a missile fired from a Naval aircraft flying over navigable waters. {p.50} The court explicitly recognized that the release of the missile over navigable waters created a potential hazard to navigation. Id. at 857.

The general character of the launch of a cruise missile from a Naval vessel also has a substantial relationship to a traditional maritime activity. In addressing this issue, Grubart stated the inquiry is whether “a tortfeasor’s activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply....” Grubart, 513 U.S. at 539-40. The firing of projectiles from Naval vessels has a long history. See, e.g., Talbot v. Commanders & Owners of Three Brigs, 1 U.S. (1 Dall.) 95 (1784) (case arising from a Naval engagement between armed vessels). While the nature of these projectiles, the manner in which they are propelled and the distance they can travel have evolved, the firing of a cruise missile from a Naval vessel to hit a land-based target bears a substantial relationship to a traditional maritime activity such as the firing of a cannon from a warship against land-based fortifications. Indeed, the Ninth Circuit has held that the firing of a missile from a Naval aircraft flying over navigable waters is a traditional maritime activity because prior to the advent of aviation, the firing at sea of explosive projectiles was performed only by waterborne vessels. Falgout Boats, 508 F.2d at 857. {p.51} Additionally, the Eleventh Circuit has held that a warship’s activities in navigating the world’s navigable waters and managing flight operations involving aircraft armed with ordnance to be launched at sea bears a substantial relationship to traditional maritime activity. Anderson, 317 F.3d at 1238-39. Based upon the analysis in Anderson and Falgout Boats, a cause of action arising from the destruction of a land-based facility by a cruise missile fired from a Naval vessel on the high seas meets the maritime connection test for admiralty tort jurisdiction enunciated by the Supreme Court in Grubart.

The CFC erred in concluding that the theory of El-Shifa’s claim — takings not tort — allowed it to disregard the maritime character of El-Shifa’s claim and was determinative in establishing Tucker Act subject matter jurisdiction over El-Shifa’s Complaint. Citing Am. Mail Line Ltd. v. United States, 101 Ct. Cl. 377 (1944), and Cent. Gulf Lines, Inc. v. United States, 209 Ct. Cl. 773 (1976) (unpublished table disposition), the CFC ruled that tort claims belong in the district court whereas takings claims fall within the CFC’s expertise, JA15, and that because El-Shifa had alleged a taking and disavowed any claim of negligence at oral argument, the CFC, not the district court, had subject matter jurisdiction. JA16. However, the cases relied upon by the CFC are inapposite, and it erred in accepting El-Shifa’s takings theory as a basis for retaining subject {p.52} matter jurisdiction.

The central issue in Cent. Gulf Lines, Inc. v United States, 209 Ct. Cl. 773 (1976), an unpublished and therefore nonprecedential opinion, was whether plaintiff’s claim, which arose from a contract with the government for the carriage of goods by sea, could be brought under the Fifth Amendment in the Court of Claims, or whether it was maritime in character and thus exclusively within the province of the federal district court sitting in admiralty. The court found the contract to have a maritime character and transferred the case to the federal district court. Id. at 348 {sic: ?775?}. The holding thus fails to support the CFC’s ruling.

In Am. Mail Line Ltd. v. United States, 101 Ct. Cl. 377 (1944), the U.S. ordered the diversion of one of plaintiff’s liners to rescue American citizens in China. The State Department reimbursed plaintiff for some losses occasioned by the diversion but disallowed a claim for others, whereupon plaintiff filed suit in the Court of Claims. Without any reasoning or citation to authority, the court announced that the government had a Fifth Amendment duty to compensate plaintiffs, id. at 389, and devoted the bulk of its opinion to determining the proper measure of compensation. The government did not move to dismiss on the basis of the maritime character of the claim, nor does the decision mention {p.53} admiralty. In any event, the case does not support the CFC’s ruling that Appellants have alleged a taking instead of a tort, or that the CFC had subject matter jurisdiction of El-Shifa’s Complaint.

Because the theory of El-Shifa’s claim is not dispositive, nor are the labels they used to describe their claim, the CFC should initially have evaluated its subject matter jurisdiction as a court sitting in admiralty would, recognized that the claim sounds in tort and is maritime in character, and determined that jurisdiction of the claim was vested exclusively in the federal district courts.

IV.
The CFC Lacked Personal Jurisdiction Over Appellants
Because They Failed to Affirmatively Satisfy
the Reciprocity Requirements of 28 U.S.C. § 2502(a).

Because the provision of the Sudanese Constitution that allows a foreign citizen to sue the Sudanese government has been suspended, the CFC erred in holding that El-Shifa had satisfied the reciprocity requirement of 28 U.S.C. § 2502(a) and affirmatively established that a U.S. citizen could sue the government of Sudan in its courts.

Section 2502(a) establishes a precondition to the CFC’s exercise of personal jurisdiction over foreign claimants. The provision imposes on a foreigner suing the United States the burden of affirmatively establishing that American citizens are entitled to prosecute claims against the foreign {p.54} government and enjoy an equal standing with that country’s citizens in the foreign state’s court system. Seklecki v. United States, 101 Ct. Cl. 651, 652 (1944); Aktiebolaget Imo-lndustri v. United States, 54 F. Supp. 844, 848 (Ct. Cl. 1944). This right cannot be illusory. A foreign claimant must show that U.S. citizens possess a real and effective right to prosecute suits against the foreigner’s government in its courts. Nippon Hodo Co. v. United States, 285 F.2d 766, 767-68 (Ct. Cl. 1961). While there is no minimum amount of sovereign liability in his own country which a foreigner wishing to sue the United States must prove, the Court of Claims has stated that it “would carefully measure the scope of [its] jurisdiction in a situation where a rule in a foreign law book permits Americans free access to its courts but where it appears in practice that Americans are barred from the courts.” Id. at 768.

The foreign claimant here is a corporation organized under the laws of Sudan. JA41. Consequently, El-Shifa must affirmatively demonstrate that a U.S. citizen could sue the government of Sudan in its courts on an equal footing with Sudanese citizens. The Saudi citizenship of Idris, the principal shareholder of the Sudanese corporation, is not relevant since the corporation, not he, was “at all relevant times ... the sole and exclusive owner of the Plant, its fixtures, equipment, and inventory.” JA41. {p.55}

It is well-settled that a shareholder — even a sole shareholder — does not have standing to assert a claim in his own name for an alleged wrong to a corporation. Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994); Eastern Minerals Int’l. Inc. v. United States, 36 Fed. Cl. 541, 547 (1996) (endorsing and adopting this principle with respect to a sole shareholder), rev’d on other grounds, Wyatt v. United States {58kb.html, errata: 6kb.html}, 271 F.3d. 1090 (Fed. Cir. 2001). 14  The government’s failure to challenge Idris’ status as plaintiff by appropriate motion as noted by the CFC, JA15, cannot confer upon him standing for purposes of section 2502(a). Standing goes to the court’s subject matter jurisdiction. First Hartford Corp. Pension Plan & Trust v. United States {63kb.html, 64kb.html}, 194 F.3d 1279, 1290 (Fed. Cir. 1999). Lack of subject matter jurisdiction may not be waived by the parties. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

Further, Idris cannot allege a property interest that he owns that has been taken by the United States. The missile strike that destroyed the facility did not “take” the corporation of which he is sole shareholder. “Only the owner of {p.56} property at the time of a taking is entitled to compensation.” United States v. Dow, 357 U.S. 17 (1958); Argent v. United States {42kb.html, 42kb.html}, 124 F.3d 1277, 1281 (Fed. Cir. 1997) (a party may not maintain an action for inverse condemnation unless it owned the property at the time of the alleged taking). Thus, the only question before this Court with respect to personal jurisdiction under 28 U.S.C. § 2502(a) is whether U.S. citizens have the right to prosecute claims against Sudan in the courts of that country and enjoy an equal standing with Sudanese citizens in Sudan’s court system.

The CFC relied upon declarations of “experts in Sudanese law” submitted by El-Shifa in finding that the 1998 Constitution of Sudan guarantees for all persons the right to prosecute claims against the government. JA13. Indeed, this was the principal ground advanced by El-Shifa below. See Pls.’ Opp’n to Def.’s Motion to Dismiss at 9 (March 9, 2001) (“Here, the Sudanese Constitution establishes the requisite reciprocity.”). This reliance is fatal, however, because the Sudanese Constitution, including the provisions that purportedly support El-Shifa’s contention, Articles 21 and 31, 15  have been formally suspended by {p.57} emergency decree since 1999. 16  Thus, while there is arguably a provision of the Sudanese Constitution that permits Americans unfettered and equal access to Sudanese courts, that right is illusory. See Nippon Hodo, 285 F.2d at 767-68.

Even if Articles 21 and 31 were not suspended, the Sudanese Constitution and legal system do not afford U.S. citizens equal standing with Sudanese citizens in Sudan’s court system. Article 106 states that advocates “shall ... render legal services to the State and citizens....” (Emphasis supplied.) Thus, Article 106 does not ensure foreign litigants the same right to representation as it does Sudanese citizens. In addition, non-Muslims do not have the same legal capacity before Sudanese courts as do Muslims, the religion of most Sudanese. See Presbyterian Church of Sudan v. Talisman Energy {230 kb doc, 1088kb.pdf, menu}, 244 F. Supp.2d 289, 335-36 (S.D.N.Y. 2003) (in rejecting defendant’s assertion that Sudan was an adequate alternative forum for the litigation, the court relied upon an affidavit attesting to the greatly reduced rights enjoyed by non-Muslims under the system {p.58} of Islamic law in place in Sudan, including “a total lack of legal personality for plaintiffs who practice traditional African religions and a diminished testimonial competence for Christians.”).

Because the Sudanese Constitution has been suspended, U.S. citizens do not have the same right to sue the Sudanese government in its courts that is afforded a Sudanese litigant suing the U.S. in the CFC. Further, even if a U.S. citizen possessed the legal right to sue the Sudanese government in its courts, he would not enjoy a legal guarantee of equal standing with a Sudanese national under the Sudanese legal system. Consequently, El-Shifa has not affirmatively satisfied the reciprocity requirement of 28 U.S.C. § 2502(a).

Conclusion

For the foregoing reasons, the judgment of the lower court dismissing the Complaint should be affirmed.

Respectfully submitted,

Signature: Peter H. Oppenheimer

Thomas L. Sansonetti
Assistant Attorney General

{Signature}

Kathryn E. Kovacs
Peter H. Oppenheimer

U.S. Department of Justice
Environment & Natural Resources Division
Policy, Legislation & Special Litigation Section
(202) 305-2570 {p.59}

August 2003
DJ# 90-1-23-10042 {p.60}

______________________

Certificate of Service

I hereby certify that on the 27th day of August 2003, two copies of the foregoing were hand-delivered upon the following:

Stephen J. Brogan, Esq.
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113

Signature: Peter H. Oppenheimer


{Signature}

Peter H. Oppenheimer, Attorney
U.S. Department of Justice
{p.61}

______________________

Certificate of Compliance

I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13,769 words.

Signature: Peter H. Oppenheimer


{Signature}

Peter H. Oppenheimer
U.S. Department of Justice

Footnotes

Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  “JA” refers to the Joint Appendix Appellants will file in this case.

 2  The federal courts may take judicial notice of documents reflecting the President’s orders, United States v. Sioux Nation of Indians, 518 F.2d 1298, 1299 (Ct. Cl. 1975), and must take notice of his public proclamations. Gallaher & Speck v. Ford Motor Co., 226 F.2d 728, 731 (7th Cir. 1955) (citing Jenkins v. Collard, 145 U.S. 546 (1892), and Givens v. Zerbst, 255 U.S. 11 (1921)).

 3  Under the Tucker Act, the jurisdiction of the CFC is limited to cases where the Constitution or a federal statute requires the payment of money damages as compensation for the violation. See United States v. Mitchell, 463 U.S. 206, 216-17 (1983). Because the CFC held that El-Shifa’s Complaint does not properly allege a violation of the Takings Clause (and El-Shifa have not asserted any claim for which another provision of the Constitution or a federal statute mandates payment of money damages), their Complaint is not within the CFC’s Tucker Act jurisdiction. See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995).

 4  Alternatively, property destroyed in authorized military action by U.S. forces is not compensable because it is not taken by the United States for a “public use.See, e.g., Caltex, 344 U.S. at 155 (refinery blown up in advance of Japanese occupation was “destroyed, not appropriated for subsequent use”); Juragua, 212 U.S. at 305 (destruction of buildings by U.S. forces to prevent spread of yellow fever not a “taking of property for the use of the United States”); Ribas y Hijo v. United States, 194 U.S. 315, 322 (1904) (ship seized as enemy property “for purposes of war, and not for any purposes of gain”); Am. Mfrs. Mut. Ins. Co., 453 F.2d at 1381 (ship destroyed in return fire by Army not taken “for public use or otherwise”).

 5  The sentence reads: “For once we recognize that the challenged Government action is an exercise of military power, not civil eminent domain, the matter falls outside the Fifth Amendment and beyond this court’s jurisdiction.” App. Br. at 23 (quoting the CFC opinion at JA24).

 6  Sudan is a country the U.S. has warned for years to stop harboring and supporting terrorists. JA28. In 1993, the State Department designated Sudan a state sponsor of international terrorism. See Dep’t of State Public Notice 1878, 58 Fed. Reg. 52,523 (Oct. 8, 1993). Eight months before the missile strike, the President found that the policies and actions of Sudan constituted an unusual and extraordinary threat to the national security and foreign policy of the United States, declared a national emergency to deal with that threat, and imposed comprehensive economic, trade and financial sanctions. Exec. Order 13067 {Nov. 3 1997}, 62 Fed. Reg. 59,989 {9kb.html/txt, 64kb.pdf; 64kb.pdf} (Nov. 7, 1997). This national emergency was recently extended for another year. See 67 Fed. Reg. 66,525 {3kb.html/txt, 79kb.pdf, 19kb.pdf} (Oct. 29, 2002).

 7  Although the takings claim in Ingenio Porvenir was based on a breach of contract theory, the principles regarding the non-reviewability of the President’s actions are nevertheless applicable.

 8  Furthermore, upon dissolution of a corporation, the property and assets of the corporation constitute a trust fund for the benefit of its creditors and shareholders. 19 Am.Jur.2d Corporations § 2829 (2003). Notably, two of the four stockholders of the dissolved Philippine corporation in Turney were U.S. citizens. Turney, 115 F. Supp. at 457-58.

 9  Turney makes no mention of Eisentrager or two other relevant Supreme Court decisions, United States v. Belmont, 301 U.S. 324, 332 (1937) (“our Constitution, laws, and policies have no extraterritorial operation, unless in respect of our own citizens”), and Curtiss-Wright Export Corp., 299 U.S. at 318 (rejecting the proposition that the Constitution has “any force in foreign territory unless in respect of our own citizens”).

 10  Even if it were assumed that these statements were not essential to the Verdugo-Urquidez holding, this Court has previously found that it cannot disregard Supreme Court dicta. See Stone Container Corp. v. United States {36kb.html, 48kb.html}, 229 F.3d 1345, 1349-50 (Fed. Cir. 2000) (rejecting appellants’ invitation to disregard Supreme Court statements as dicta because the Supreme Court can accept for review only a limited number of cases, and it must give guidance to the lower federal courts in broad language).

 11  The location of the facility hundreds of miles inland, JA16, is irrelevant. Grubart expressly rejected arguments that the injury on land must be proximate to the activity that caused it. Grubart, 513 U.S. at 536. In any event, Khartoum, where the facility was located, is a port city at the confluence of the navigable Blue Nile and White Nile Rivers. See “Khartoum,” Columbia Encyclopedia. (6th ed. 2001), at http://www. bartleby.com/65/kh/Khartoum.html (last visited Aug. 20, 2003).

 12  See Jane’s Fighting Ships, 2002-2003 Ed., pp. 802-821.

 13  Such activities are part of the Navy’s statutory mission. See 10 U.S.C. § 5062(a).

 14  At no time has Idris asserted a derivative right to sue under RCFC 23.1. This rule allows a derivative action to be brought by a shareholder to enforce a right of a corporation where that corporation has “failed to enforce a right which may properly be asserted by it.” Id. Here, the Sudanese corporation is asserting the same alleged right to compensation that Idris is purporting to assert. JA62-63.

 15  Article 21 provides in relevant part that “All persons are equal before the courts of law.” Article 31 provides that “The right to litigate shall be guaranteed to all persons, and no one shall be punished for a criminal case or a transaction or be deprived of taking legal action, except according to law.” JA220.

 16  U.S. Dep’t of State, 2002 Country Reports on Human Rights Practices: Sudan at 1 (March 31, 2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/18228.htm (last visited August 21, 2003) (In 1999, Constitution suspended by Presidential decree); U.S. Dept. of State, Background Notes: Sudan at 1 (March 2003) (Sudanese Constitution suspended in December 1999 when National Security Emergency law was promulgated by presidential decree), available at http://www. state.gov/r/pa/ei/bgn/5424.htm (last visited August 21, 2003). The Court may take judicial notice of official government records. Pawnee Indian Tribe of Okl. v. United States, 109 F.Supp. 860, 870 (Ct. Cl. 1953).

 

Source: Photocopy of a duplicate original (the Court’s file copy), scanned-to-PDF. Omitted: Table of Contents, Table of Authorities (pp. i-xi).

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶ .

On appeal, from the U.S. Court of Federal Claims.

This case: El-Shifa Pharmaceutical Industries Company v. United States (U.S. missile-strike on Sudan, August 20 1998) (Article I, U.S. Court of Federal Claims), refused to adjudicate, 55 Fed. Cl. 751 (C.F.C., No. 00-CV-00443, March 14 2003, complaint filed, July 27 2000, reconsideration denied, April 14 2003), affirmed refusal to adjudicate, 378 F.3d 1346 (Fed. Cir., No. 03-5098, August 11 2004, appeal docketed, May 19 2003, rehearing and rehearing en banc denied, December 28 2004), refused to review refusal to adjudicate, certiorari denied, 545 U.S. 1139 {10.44mb.pdf} (U.S., No. 04-1291, June 27 2005, petition docketed, March 25 2005).

Related case: El-Shifa Pharmaceutical Industries Company v. United States (U.S. missile-strike on Sudan, August 20 1998) (Article III, U.S. District Court), refused to adjudicate (D.D.C., No. 01-CV-731, November 29 2005, complaint filed, April 4 2001, motion to alter judgment denied, March 28 2007), appeal docketed, May 31 2007 (D.C. Cir., No. 07-5174), briefs filed, Jan. 18, Feb. 21, March 4, 2008, oral argument, April 7 2008.
Related case: Idris v. U.S. Treasury Department (the owner of El-Shifa), filed, Feb. 26 1999 (D.D.C., No. 99-CV-472), dismissed as moot, May 5 1999) (blocked bank accounts, unblocked by the U.S. government, to avoid answering this complaint).

This document is not copyrighted and may be freely quoted.

Charles Judson Harwood Jr.

CJHjr

Posted Oct. 18 2003. Updated Nov. 7 2003.

http://homepage.ntlworld.com/jksonc/docs/el-shifa-fedcir-d3.html

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