CJHjrValid XHTML 1.0W3C: Valid CSS2

Alt+left-arrow to return from a link


Full-text: September 17 2003

United States Court of Appeals for the Federal Circuit

Filed, Sep 17 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)
United States,)

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

Reply Brief for Plaintiffs-Appellants


As explained in our opening brief, the Takings Clause imposes conditions on the power of the Executive Branch to destroy private property that the Constitution requires this Court to enforce. Following the court below, the Government contends that this constitutional requirement does not apply to “authorized military action,” regardless of the circumstances, and that it therefore was not required to make any showing that the property destroyed was, in fact, enemy property or that its destruction was justified under the military necessity doctrine. Although the Government cites numerous cases to support this new rule, none of those cases adopt the extreme position that the Government asserts, which cannot be reconciled with the terms of the Fifth Amendment, the Supreme Court’s decision in the Caltex case, and many other decisions. Moreover, the Government’s brief does not find any fault in the opening brief’s demonstration (Pl. Br. at 46-51) that existing doctrines and procedures adequately protect national security interests in cases involving military action. Thus, the Government fails to offer any principled basis for the exemption for authorized military action it urges this Court to adopt.

Alternatively, the Government contends that plaintiffs’ takings claim is precluded by the out-of-court statements by President Clinton at the time of the attack — despite substantial evidence that the Government no longer believes the critical facts asserted in those statements. According to the Government, under the { p.2 } political question doctrine President Clinton’s designation of the plant as enemy property is “conclusive” and may not be subjected to judicial review, even though the United States is apparently unwilling to endorse its correctness. The opening brief demonstrated, however, that the political question doctrine provides no basis for deferring to an out-of-court statement that may no longer represent the position of the Executive Branch; and, even more importantly, it does not immunize the Government from its constitutional obligations under the Takings Clause. As a consequence, even if the political question doctrine were to apply, the Government would still be obligated to answer the complaint and state whether it now believes that plaintiffs’ property was, in fact, enemy property. Furthermore, the Government’s broad-brush application of the doctrine cannot be reconciled with the narrow, measured approach adopted by the Supreme Court or the peculiar facts of this case, which demonstrates that the doctrine has no application to the questions that are actually at issue in this case.

No doubt recognizing the weakness in its attempts to defend the decision below, the Government also offers a number of alternative grounds for affirmance that were rejected by the court below. The Government focuses primarily on its contention that the Takings Clause does not apply to the destruction of the property of aliens that is located abroad. But this argument conflicts with the language, purposes, and history of the Takings Clause as well as binding Court of Claims { p.3 } precedent that can only be reconsidered en banc. The Government’s attempts to revive other arguments rejected below are equally unpersuasive. The decision below should be reversed, and this case remanded for further proceedings.


The Takings Clause Does Not Contain an Exception
for “Authorized Military Action”

The opening brief demonstrated that the broad exception for military conduct adopted below contradicts decisions of the Supreme Court and the Court of Claims, as well as the text, history, and purpose of the Takings Clause. Pl. Br. at 23-35. The Government does not directly dispute any of these points. Instead, it argues that they are based upon an “incomplete reading” of the decision below. Def. Br. at 17. However, the rule advanced by the Government — that the destruction of property in “authorized military action” falls outside the scope of the Takings Clause (id. at 7; see id. at 9, 10-11, 18) — does not appear to differ materially from the military conduct exception discussed in the opening brief. Even more importantly, the Government fails to reconcile this rule with the authority cited in the opening brief, to cite any authority actually supporting such an expansive rule, or to identify any basis for the rule in the text of the Takings Clause, its history, or its purposes.

The Government makes no attempt to reconcile the position it urges upon this Court with the Supreme Court’s decision in United States v. Caltex { p.4 } (Philippines), Inc., 344 U.S. 149 (1952). As plaintiffs showed, see Pl. Br. at 26-27, although the takings claim in that case arose out of the destruction of oil terminal facilities in advance of the Japanese capture of Manila, the Supreme Court did not treat the fact that this conduct was “authorized military action” as dispositive. Instead, the Court looked to whether the destruction of the property was necessary under the specific facts of the case. Caltex, 344 U.S. at 155-56. Indeed, the Court observed that “[n]o rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case must be judged on its own facts.” Id. at 156 (emphasis added). Although the Government contends that the rule it urges this Court to adopt is based on Caltex, see Def. Br. at 11-12, it does not even begin to explain how that rule can be reconciled with the Supreme Court’s admonition in Caltex that takings claims are not governed by bright-line rules and that each case must be judged on its own facts.

The Government similarly ignores other case law contradicting its rule. For example, the opening brief showed that in National Board of Young Men’s Christian Association v. United States, 395 U.S. 85 (1969), four members of the Court recognized that, in some instances, a valid takings claim can be based upon the military’s seizure or destruction of property during combat operations. See Pl. Br. at 27. The Government neither disputes plaintiffs’ showing nor attempts to reconcile it with the position the Government asserts. Moreover, the only response { p.5 } that the Government offers to the decisions in Case of Wiggins, 3 Ct. Cl. 412 (1867), and Grant v. United States, 1 Ct. Cl. 41 (1863), in which the Court of Claims granted takings claims based upon the destruction of property during military operations, see Pl. Br. at 26-29, is that “the holding in both cases ... has been overturned” by Caltex. Def. Br. at 19. But the Government does not — and cannot — explain why that is so.

The Government claims that the Court of Claims’ decision in Perrin v. United States, 4 Ct. Cl. 543 (1868), aff’d, 79 U.S. (12 Wall.) 315 (1870), contains the “first ... articulation” of its “authorized military action” rule. Def. Br. at 10. There is, however, no suggestion in the passage in Perrin quoted by the Government of any such rule. To the contrary, the passage notes that the property of the plaintiffs in that case was destroyed during an attack against a “common public enemy” and that this property was deemed to be enemy property because it was located in territory controlled by that enemy. See Perrin, 4 Ct. Cl. at 548. As plaintiffs showed, this reasoning is based upon the enemy property doctrine, which in turn reflects the established requirement that a plaintiff seeking just compensation prove invasion of a cognizable property interest, not any exemption based upon the nature of the conduct that destroyed the property. See Pl. Br. at 30-32; see also id. at 32-33 (noting that Perrin applies the collateral damage doctrine as well). Furthermore, as also previously shown, see id. at 30, Perrin cited both { p.6 } Grant and Wiggins favorably. See Perrin, 4 Ct. Cl. at 547. The Government makes no attempt to explain why Perrin should be read to apply a rule barring takings claims based on authorized military action when it cited favorably two decisions granting precisely such claims.

The other authority cited in the Government’s brief is equally unpersuasive. For example, the Government quotes a lengthy passage from the Supreme Court’s decision in United States v. Pacific Railroad Co., 120 U.S. 227 (1887). See Def. Br. at 11. However, as the repeated references to necessity in that passage make clear, the Court was applying the military necessity doctrine, not any bright-line rule exempting all authorized military action from the Takings Clause. The Supreme Court’s decision in Juragua Iron Co. v. United States, 212 U.S. 297 (1909), and most of the other cases cited by the Government to support its military action rule apply the enemy property doctrine. See id. at 306 (noting that the property in question “could be regarded as enemy’s property, liable to be seized and confiscated by the United States in the progress of the war then being prosecuted”) (emphasis added). 1  Thus, the Government fails to cite a single case applying the sweeping rule it urges this Court to adopt. { p.7 }

The Government also fails to explain how a military action exception can be read into the Takings Clause. The opening brief showed that the language of the Takings Clause does not suggest any such exception, see Pl. Br. at 23, that the Clause is derived from a theory of natural law recognized to apply to military conduct, see id. at 24-25, and that the Clause was originally intended to apply to the military, see id. at 25-26. The Government does not dispute any of these points, and it makes no attempt to reconcile its authorized military action exception with the text, purpose, or history of the Takings Clause.

The Government does assert that its authorized military action rule is supported by two subsidiary rules: the enemy property doctrine and the rule that governments are not liable for the “unavoidable consequence[s] of the fortunes of war.” Def. Br. at 13. Although the enemy property doctrine recognizes that some military conduct — namely, the seizure or destruction of enemy property — is not subject to the Takings Clause’s just compensation requirement, it does not follow that that narrow doctrine supports an exception for all authorized military action. To the contrary, as application of the doctrine to seizures by civil authorities demonstrates, See, e.g., North German Lloyd v. United States, 61 Ct. Cl. 138, 139- { p.8 } 40 (1925), the doctrine turns upon the nature of the property seized or destroyed, not the military character of that seizure or destruction.

Likewise, what the Government calls the unavoidable consequences rule does not turn upon the military nature of the conduct in question. As the Government’s citations to Caltex and Juragua make clear, see Def. Br. at 13, the unavoidable consequences rule is, rather, the military necessity doctrine, which, as the opening brief observed, see Pl. Br. at 33-34, turns upon the presence of facts establishing genuine military necessity, not “rigid rules” concerning the military nature of the conduct. See Caltex, 344 U.S. at 155-56; Pac. R.R., 120 U.S. at 231, 234 (noting lower court finding of “imperative military necessity”); Am. Mfr. Mut. Ins., 453 F. 2d at 1381 (noting that the property in question was “destroyed as a part of the fortunes of war and by actual and necessary military operations”) (emphasis added).

The Government also asserts that “[i]f the Takings Clause applied to the destruction of property during authorized military operations, ‘the war powers conferred ... by the Constitution would be rendered nugatory.’” Def. Br. at 13 (quoting North German Lloyd, 61 Ct. Cl. at 141). The case quoted by the Government for this assertion did not, however, apply any rule exempting authorized military operations from the Takings Clause. Instead, it applied the enemy property doctrine to a seizure of property located in the United States, { p.9 } presumably by civilian rather than military authorities. See North German Lloyd, 61 Ct. Cl. at 139, 141 (noting that the “United States took exclusive possession of said property” and that the Takings Clause does not “apply ... to alien enemies in time of war”). Thus, here again, the Government fails to identify any principled basis for the sweeping military operations rule it urges this Court to adopt.

The Decision Below Is Not Justified
by the Political Question Doctrine

Although the complaint specifically alleges that the El-Shifa plant was not enemy property and that it posed no danger to the United States or its allies, see Pl. Br. at 35, the Government argues in the alternative that the military necessity and enemy property doctrines apply to the destruction of the El-Shifa plant based upon statements by President Clinton. See Def. Br. at 21-24. Because courts generally “must accept as true all the factual allegations in the complaint” on a motion to dismiss, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), at this stage, this argument necessarily turns upon the Government’s further contention that the political question doctrine requires the Court to accept President Clinton’s public statements. See Def. Br. at 24-36. However, as previously demonstrated, the political question doctrine is inapplicable here and, in any event, does not excuse the Government from answering the complaint. See Pl. Br. at 35-46. { p.10 }

A.  The Political Question Doctrine Does Not Immunize the Executive Branch from Its Constitutional Obligations
and Therefore Does Not Excuse It
From Answering the Complaint.

In the opening brief, plaintiffs demonstrated that, even if the political question doctrine were applicable here, it would not excuse the Government from answering the complaint for two reasons: first, there is good reason to think that the Government no longer believes President Clinton’s initial public statements about the attack on the El-Shifa plant, and, second, the political question doctrine does not immunize the Executive Branch from its constitutional obligations. See Pl. Br. at 43-46. In response, the Government does not deny either point. Notably absent from its brief is any claim that, in fact, the El-Shifa plant produced chemical weapons or was associated with al Qaeda or other enemies of the United States. Nor does the Government deny that it is obligated to pay plaintiffs just compensation if the attack on the El-Shifa plant violated the Takings Clause, whether or not that claim implicates the political question doctrine. As a consequence, the Government fails to explain how the political question doctrine can be applied before it answers the complaint.

B.  Although The President’s War Powers
Warrant Deference, They Do Not Preclude
All Review of Plaintiffs’ Claims.

The Government argues that the war powers conferred upon the President by the Constitution bar consideration of plaintiffs’ takings claims. See Def. Br. at 25- { p.11 } 30. Like the Government’s authorized military action argument, this contention sweeps too broadly.

Noting that the Constitution confers upon the President the role of the Commander in Chief and dominant authority over foreign affairs, the Government asserts that the President’s designation of a military target is unreviewable. See Def. Br. at 28-29. However, as the opening brief demonstrated, see Pl. Br. at 36-37, the political question doctrine does not permit such broad “semantic cataloguing.” Baker v. Carr, 369 U.S. 186, 217 (1962). Instead, as the Supreme Court admonished four decades ago, it requires a “discriminating inquiry into the precise facts and posture of the particular case.” Id. Thus, it is well-settled that the political question doctrine does not apply merely because a case relates to foreign or military affairs. See, e.g., id. at 211 (“It is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance”); Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992) (noting that a case is not “rendered judicially unmanageable because the challenged conduct took place as a part of an authorized military operation”). Nor is the doctrine applicable simply because the President is involved: as the Government’s own authority recognizes, a President’s action “may ... be reviewed for constitutionality.” Dalton v. Specter, 511 U.S. 462, 469 (1994) (quotation omitted); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (reviewing { p.12 } constitutionality of seizure of steel mills under President Truman’s exercise of his “military power as Commander in Chief of the Armed Forces”).

The Government does not offer any discriminating analysis of the questions before this Court. Quite the contrary, it obscures those questions by arguing that the case would require the court to review the President’s “motives, reasoning and judgment behind his designation of the El-Shifa facility as a military target.” Def. Br. at 26. That is not true. To make a prima facie case here, plaintiffs need only show that the plant was not “enemy property” — i.e., that it was not a chemical weapons facility associated with Osama bin Laden. This does not require the broad inquiry into Presidential motives and judgment suggested by the Government. If the Government states a military necessity defense, it can likewise make its case without reference to Presidential motives and judgments through objective evidence establishing that the attack was justified by imperative necessity. Courts have long reviewed executive designations of property as enemy-owned or controlled, see Pl. Br. at 40-43 (listing cases), as well as claims of military necessity. See, e.g., Caltex, 344 U.S. at 155-56; see also Baras Plantation Co. v. United States, 105 F. Supp. 1003, 1003 (Ct. Cl. 1952) (rejecting Government’s claim of military necessity). In no case has review been barred by the political question doctrine. { p.13 }

The Government also asserts that this case will force this Court to review the President’s determination that an international terrorist organization with a presence in the Sudan was responsible for the embassy bombings in early August 1998, that a military response was warranted, and that attacking a chemical weapons facility connected with terrorists is justified by the nation’s inherent right of self-defense. See Def. Br. at 29. Plaintiffs do not, however, dispute any of these points; indeed, plaintiffs readily acknowledge that terrorists were responsible for the embassy bombings. See Pl. Br. at 6. 2  It should come as no surprise then that, the Government fails to explain how plaintiffs’ takings claim raises these points. Thus, the Government has failed to show that the takings claim in this case involves anything other than the “quintessential tasks of the federal Judiciary” normally involved in deciding such a claim. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 {500 kb} (D.C. Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985); accord Langenegger v. United States, 756 F.2d 1565, 1569 (Fed. Cir. 1985) (“ascertainment of ‘just compensation’ is a judicial function”). { p.14 }

The Government also argues that consideration of plaintiffs’ takings claim would suggest a lack of respect for the President and introduce confusion regarding the country’s foreign policy. See Def. Br. at 32-33. This argument suffers from several defects. First, as previously demonstrated, these prudential concerns are secondary, see Pl. Br. at 38, and the Government fails to cite a single case actually holding that they are sufficient by themselves to trigger the political question doctrine. See Def. Br. at 38. Second, these prudential concerns have already been addressed. As the opening brief observed, the Government cannot claim any significant need for unquestioning adherence to President Clinton’s designation of the El-Shifa plant as enemy property, because those claims were discredited in the press long before this litigation began, and the Executive Branch’s public backtracking on those claims suggests that it no longer adheres to them. Pl. Br. at 9-10, 39. Finally, the courts do not express any disrespect for the President simply by enforcing the Takings Clause. See id. at 37, 39-40.

The Court of Claims’ 1930 decision in Ingenio Porvenir v. United States, 70 Ct. Cl. 735 (1930) does not help the Government. According to the Government, the Ingenio Porvenir decision found a political question because the claims there “were based on the action of the U.S. military forces acting under the direction of the President.” Def. Br. at 30 (quoting Ingenio Porvenir, 70 Ct Cl. at 739). This is a misleading simplification of the case. The claims were based upon an order { p.15 } requisitioning sugar issued by an official in the government of the Dominican Republic at a time when that government was being directed by the United States military. See Ingenio Porvenir, 70 Ct. Cl. at 736; see also 40 Stat. 437 (1918) (authorizing United States military officers to “accept from the Government of the Dominican Republic offices under said Government”). In response, the United States Government claimed, among other things, that this military government of the Dominican Republic was properly organized under a treaty with the Dominican Republic and that the claims in that case were therefore against the Dominican, not the American, government. 3  The Court of Claims appears to have treated this threshold issue as a political question. See Ingenio Porvenir, 70 Ct. Cl. at 739 (noting that “the act of taking over the Government of Santo Domingo and all the proceedings thereunder were political matters as to which we have no jurisdiction”). In any event, the sweeping rule that the Government attributes to Ingenio Porvenir cannot be accepted because it is incompatible with the discriminating, case-by-case analysis mandated by the Supreme Court. See, e.g., Baker, 369 U.S. at 211, 217. { p.16 }

The other authority cited by the Government is likewise inapposite. For example, the Government claims that the factual findings underlying the President’s decisions are not subject to judicial review. See Pl. Br. at 26-27. The cases it cites, however, all involve statutes conferring unrestricted discretion on the President. See Dalton, 511 U.S. at 463 (noting that the Defense Base Closure and Realignment Act of 1990 “does not at all limit the President’s discretion in approving or disapproving” certain recommendations); United States v. George S. Bush & Co., 310 U.S. 371, 376-77 (1940) (noting that the Tariff Act of 1930 left approval of certain recommendations to the “judgment” of the President); Florsheim Shoe Co. v. United States, 744 F.2d 787 (Fed. Cir. 1984) (noting the President’s “plenary authority” to withdraw duty-free treatment under Trade Act of 1974). Moreover, another case cited by the Government — the Supreme Court’s infamous decision in Hirabayashi v. United States, 320 U.S. 81 (1943) — contradicts the Government’s position. Even though it recognized the curfew imposed upon Japanese-Americans during World War II as an exercise of the war power, see id. at 86, 92-93, the Supreme Court did not treat the Government’s claims of military necessity as a political question: instead, it reviewed the factual bases for the curfew in considering the constitutional challenges to it. See id. at { p.17 } 93-98. Thus, the Government’s reliance upon the political question doctrine, especially at this stage of the case, is misplaced.

The Takings Clause Applies to the Taking of the Property
of Nonresident Aliens Located Abroad

In addition to arguing that authorized military action is exempt from the Takings Clause, the Government contends that the Takings Clause does not apply to the property of foreign citizens located abroad. See Def. Br. at 36-43. This argument is foreclosed by binding precedent and, in any event, is unpersuasive.

As plaintiffs noted, see Pl. Br. at 21, in Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953), the Court of Claims held that the Takings Clause applies to property that is located abroad and owned by a nonresident alien. Because “Court of Claims cases, until overturned by this court en banc, are binding precedent,” Bankers Trust N.Y. Corp. v. United States {33kb.html}, 225 F.3d 1368, 1373 (Fed. Cir. 2000), the panel cannot reconsider Turney and, like the trial court below, must follow it.

The Government does not deny that the panel is bound by Court of Claims decisions such as Turney. Instead, it attempts to distinguish the decision on the ground that the claim there was “asserted not by the dissolved foreign Philippine corporation but by its liquidating trustee, a U.S. citizen.” Def. Br. at 38. This is a distinction without a difference. As the Government acknowledged below, “[o]nly the owner of property at the time of a taking is entitled to compensation” under the Takings Clause. JA 121 (Def. Motion to Dismiss at 22 n.9 (quotation omitted)). { p.18 } See generally United States v. Dow, 357 U.S. 17, 20-21 (1958). Because the Philippine corporation was in existence at the time of the taking alleged in Turney, see 115 F. Supp. at 460, the subsequent dissolution of the corporation and appointment of a United States citizen as trustee is irrelevant — which is no doubt why lower courts repeatedly have acknowledged that Turney applies to alien-owned property located abroad. See, e.g., Medina Constr., Ltd. v. United States {102kb.html}, 43 Fed. Cl. 537, 559 n.17 (1999); Porter v. United States, 496 F.2d 583, 588 (Ct. Cl. 1974); Seery v. United States, 127 F. Supp. 601, 603 (Ct. Cl. 1955).

In the alternative, the Government contends (Def. Br. at 39) that the decision in Turney has been undermined by the Supreme Court’s decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Verdugo-Urquidez, however, considered the extraterritorial application of the Fourth Amendment’s warrant requirement, not the Fifth Amendment’s Takings Clause. See id. at 264. Furthermore, in refusing to apply the warrant requirement to the search of property located abroad of a nonresident alien, the Court reasoned that the Fourth Amendment, “by contrast with the Fifth and Sixth Amendments, extends its reach only to the ‘people,’” and that the history of the drafting of the Fourth Amendment as well as contemporaneous actions suggested that it was concerned with domestic matters. Id. at 265. { p.19 }

The Government notes that Verdugo-Urquidez characterized an earlier decision as having “rejected the claim that aliens are entitled to Fifth Amendment rights outside of the sovereign territory of the United States.” Def. Br. at 40 (quoting Verdugo-Urquidez, 494 U.S. at 269). It fails, however, to recognize that this passage comes immediately after the Court noted that the applicability of constitutional provisions to insular possessions varies widely, see 494 U.S. at 264, and that the opinion does not adopt the categorical rules advanced by one of the judges in the lower court. See id. (noting reliance on United States v. Curtis-Wright Export Co., 299 U.S. 304 (1936)). Thus, Verdugo-Urquidez cannot be read to adopt the sweeping rule proposed by the Government.

The four trial court opinions cited by the Government (Def. Br. at 38, 41-42) are also unpersuasive. One of these decisions is from a district court that did not even mention Turney and that failed to offer any analysis of the text of the Takings Clause or the principles underlying it. See Hoffmann v. United States {62kb.pdf}, 53 F. Supp. 2d 483 (D.D.C. 1999), aff’d in pertinent part, 17 Fed. Appx. 980, 986 (Fed. Cir. 2001) (unpublished table disposition), cert. denied, 535 U.S. 1112 (2002). The three remaining decisions likewise failed to offer any analysis of the Takings Clause, and they purported to distinguish Turney on the ground that the plaintiff in that case was a United States citizen without considering that the property in question was owned by a foreign corporation at the time of the alleged taking. See { p.20 } 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, 1363 n.12 (D.D.C. 1970). Thus, none of these decisions offers any principled basis for rejecting Turney.

Finally, though criticizing the Turney opinion for its supposed lack of reasoning, see Def. Br. at 38, the Government offers no analysis of its own of the language of the Takings Clause and the principles underlying it. In sharp contrast, plaintiffs showed that (i) the language of the Takings Clause imposes an absolute and unqualified restriction upon government conduct; (ii) this limitation is derived from a theory of “natural law” and based upon a natural right to private property which is universal in nature, not dependent on citizenship, and a fundamental principle of international law; and (iii) the most authoritative treatise on takings recognizes that the Takings Clause requires just compensation to be paid “‘to nonresident aliens for the taking of property located outside the United States.’” Pl. Br. at 20-22 (quoting 8A Julius L. Sackman & Russell D. Brunt, Nichols on Eminent Domain, § 19.08, at 19-23 (rev. 3d ed. 1991)); see also Palazzolo v. Rhode Island, 533 U.S. 606, 625 (2001) (relying on Nichols). As the Government does not address these points, it fails to offer any principled basis for overturning Turney. { p.21 }

The Government’s Other Objections
to the Takings Claim Are Also Meritless.

1.  The Government contends that plaintiffs’ claim should be treated not as a takings claim, but instead as a tort claim (and therefore outside the jurisdiction of the Court of Federal Claims) because it is based upon the error made in identifying the El-Shifa plant as a chemical weapons facility associated with terrorists. See Def. Br. at 15-16, 43-45. The Government does not, however, dispute plaintiffs’ demonstration (see Pl. Br. at 19-20) that the complaint alleges facts sufficient to state a takings claim, and it fails to cite a single case in which a plaintiff alleging such facts has been deemed to have only a tort claim because of allegations of some error on the part of the Government. Instead, the Government cites a number of cases in which courts have found a plaintiff’s takings claim to be defective and then observed that the plaintiff might have a tort claim. See Juragua, 212 U.S. at 308-09 (holding plaintiff’s takings claim barred by the enemy property doctrine and then observing that “the utmost that could be said would be that what was done ... amounted to a tort”); accord Ribas y Hijo, 194 U.S. at 322 (rejecting takings claim based on the enemy property doctrine, then observing that there might be a tort claim under the law of war); Herrera v. United States, 222 U.S. 558 (1912) (same); Herrera Nephews v. United States, 43 Ct. Cl. 430 (1908) (same); Castelo v. United States, 51 Ct. Cl. 221 (1916) (same); Montego Bay Imports, Ltd. v. United States, 10 Cl. Ct. 806 (1986) (rejecting takings claim { p.22 } because alleged conduct was unauthorized); Am. Mfrs. Mut. Ins., 453 F.2d at 1381 (rejecting takings claim based upon military necessity). Thus, none of the Government’s authority justifies a departure from the basic principle that “the party who brings a suit is master to decide what law he will rely upon. ...” Bell v. Hood, 327 U.S. 678, 681 (1946).

2.  Quoting stray language from several opinions, the Government suggests in a footnote that the destruction of the El-Shifa plant is not compensable because it was not for public use. See Def. Br. at 14 n.4. That is incorrect. It is well-settled that the destruction of property to protect the public qualifies as a “public use” under the Takings Clause. See, e.g., United States v. General Motors Corp., 323 U.S. 373, 376, 383-84 (1945). See generally Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (noting that the public use requirement demands only that government conduct be “rationally related to a conceivable public purpose”).

3.  Although the Government conceded below that “takings claims are not governed by admiralty law,” Pl. Reply Mem. at 10, it contends that the trial court lacked subject matter jurisdiction over plaintiffs’ takings claim because the claim is maritime in nature. See Def. Br. at 45-53. This contention has no merit.

a.  First, as the trial court recognized, takings claims fall within the jurisdiction of the Court of Federal Claims even if they are maritime in nature. { p.23 } JA 15-16. The Tucker Act confers upon the Court of Federal Claims subject matter jurisdiction over all claims for damages based upon constitutional violations without regard to the maritime nature of those claims. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment against the United States founded either upon the Constitution or any Act of Congress ... in cases not sounding in tort.”). Moreover, while federal district courts have original jurisdiction over maritime cases, that jurisdiction is only “exclusive of the courts of the States,” not specialized federal courts such as the Court of Federal Claims. 28 U.S.C. § 1333. Similarly, while the Suits in Admiralty Act, 46 U.S.C. App. §§ 741-52, and the Public Vessels Act, 46 U.S.C. App. §§ 781-90, require that certain maritime claims against the United States be brought in federal district court, those acts apply only to claims against the Government that could have been brought in admiralty had the vessel, cargo or entity in question been privately owned. See 46 U.S.C. App. § 742 (authorizing suit “where if [the] vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained”); see also id. § 782 (incorporating Section 742). Since takings claims are directed against the government alone and have no private analogue, See, e.g., Hooe v. United States, 218 U.S. 322, 335 (1910), they are not covered by either the Public Vessels Act or the Suits in { p.24 } Admiralty Act. Cf. FDIC v. Meyer, 510 U.S. 471, 476-77 (1994) (construing similar language in the Federal Torts Claim Act, 28 U.S.C. § 1346(b), to exclude constitutional claims).

Accordingly, as the trial court observed, maritime takings claims have routinely been considered by the Court of Federal Claims’ predecessor, the Court of Claims. See JA 15 (citing Am. Mail Line Ltd. v. United States, 101 Ct. Cl. 377, 388-89 (1944), and Cent. Gulf Lines, Inc. v. United States, 209 Ct. Cl. 773 (1976)). The Government argues that the two cases cited by the trial court are unpersuasive because one transferred the claims before it to federal district court and subject matter jurisdiction was not considered in the other. See Def. Br. at 52-53. It is, however, hornbook law that a court is obligated to consider its subject matter jurisdiction sua sponte. See, e.g., Hambsch v. United States, 857 F.2d 763, 765 (Fed. Cir. 1988). See generally Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Furthermore, the cases cited by the trial court were not anomalies: the Court of Claims has considered the merits of maritime takings claims on numerous occasions. See, e.g., Montego Bay, 10 Cl. Ct. at 809; Am. Mfrs Mut. Ins., 453 F.2d at 1381; Cavalliotis v. United States, 127 F. Supp. 191 (Ct. Cl. 1955); Latvian State Cargo & Passenger S.S. Line v. United States, 88 F. Supp. 290, 292 (Ct. Cl. 1950); Seven-Up Bottling Co. v. United States, 68 F. Supp. 735, 736 (Ct. Cl. 1946). { p.25 }

b.  Even if the maritime nature of plaintiffs’ takings claim were relevant, the Government’s subject matter jurisdiction argument would still fail. First, as the trial court found, the launching of a Tomahawk cruise missile at a target hundreds of miles from shore is unlikely to disrupt maritime commerce because such missiles are “extremely accurate; the likelihood of the weapon missing its intended target is slim.” JA 16.

Second, as the trial court also found, the destruction of a target “400 hundred miles from the nearest international body of water” by a weapon designed to hit land-based targets, and indeed “known as the Tomahawk Land Attack Missile,” lacks a substantial connection to traditional maritime commerce. JA 16-17.

Although the Government claims that such cruise missiles are analogous to the cannonballs and other projectiles used in traditional naval warfare, see Def. Br. at 50, there is in fact a distinct difference. Tomahawk cruise missiles are self-propelled vehicles with their own jet engines and an internal guidance system that allows them to make in-flight adjustments based upon optical imagery, topography, and global positioning data. JA 16; see also JA 338 (noting that at the time of the attack the guidance system information was programmed at one of two land-based facilities). Moreover, the target in this case was a facility located more than 400 miles from the sea. JA 16. There is no “traditional maritime” analogue to such attacks. This is not a case where modern technology has developed { p.26 } alternative means for performing a traditional maritime activity. Instead modern technology allows ships to do things that persons involved in traditional maritime activities could not even have imagined.

Nor do the cases cited by the Government suggest otherwise. In one, a missile fired from a naval aircraft did something that an errant cannonball might have done: it struck a boat in navigable waters. See T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855 (9th Cir. 1974). In the other case, both the intended target and victim were located on a naval training range so near the sea that it had to close twice weekly to allow fishing vessels to gather their catch. See Anderson v. United States {28kb.html, 107kb.pdf}, 317 F.3d 1235, 1236 (11th Cir. 2003), petition for cert. filed, 71 U.S.L.W. 3791 (U.S. Apr. 7, 2003) (No. 02-1822). As the aircrafts in these cases were performing the same basic function that a ship’s guns performed in traditional maritime activities, they provide no authority for concluding that a cruise missile performing a function that no such gun ever could has a substantial connection to traditional maritime activity.

4.  There is no merit to the Government’s claim (Def. Br. at 53-58) that the trial court lacked personal jurisdiction over plaintiffs because of lack of reciprocity under 28 U.S.C. § 2502. In the proceedings below, plaintiffs presented testimony from three experts on Sudanese law — a law professor and former judge, a second former judge, and a leading human rights lawyer and activist — that { p.27 } Sudanese law affords foreigners in general and American citizens in particular the right to sue the Sudanese government on the same basis as Sudanese citizens. JA 274-87. The Government argues that the guarantee of equal access to the courts found in the 1998 Sudanese constitution is illusory because the Sudanese Constitution has been suspended. See Def. Br. at 56-57. In fact, however, the Sudanese Constitution has only been partially suspended, see The CIA World Factbook, Sudan, at 4, available at http://www.odci.gov/cia/publications/ factbook/print/su.htm, and none of the portions of the Constitution guaranteeing foreigners the ability to sue the Sudanese government have been affected. Compare JA 274, 280-81 (relying on Articles 21, 31, 34, and 46) with “Sudanese president declares emergency in the country for three months,” Arabicnews.com (Dec. 13, 1999), available at http://www. arabicnews.com/ansub/DAILY/991213/1999/21317.html (noting that decree suspended only Articles 56, 57, 59, and 60). Even more importantly, the expert testimony presented by plaintiffs was based upon actual practice as well as statutory and constitutional analysis. JA 275, 281-84, 287. The Government’s reliance on Article 106 of the Sudanese Constitution is also misplaced because that article applies only to government lawyers, and does not limit the ability of foreigners to obtain legal counsel. JA 254, 283-84, 287. 4  { p.28 }


For the reasons stated above and in Plaintiffs’ opening brief, the judgment entered below should be vacated, plaintiffs’ claim reinstated, and this case remanded for further proceedings.

Respectfully submitted,

Dated: September 17, 2003

Signature: Stephen J. Brogan, by Daniel H. Bromberg


Stephen J. Brogan/DHB
{by Daniel H. Bromberg}
Timothy J. Finn
Jonathan C. Rose
Daniel H. Bromberg
Julia C. Ambrose
Christopher J. Lovrien

Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939

Attorneys for Plaintiffs-Appellants El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris { p.29 }


Certificate of Service

I hereby certify that, on this 17th day of September, 2003, I caused two (2) copies of the foregoing Reply Brief for Plaintiffs-Appellants to be served via U.S. mail, first class, postage prepaid, upon:

Peter H. Oppenheimer, Esq.
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 4390
Ben Franklin Station
Washington, D.C. 20044-4390

I also hereby certify that on this 17th day of September, 2003, I caused an original and eleven (11) copies of the foregoing Reply Brief for Plaintiffs-Appellants to be filed, via hand delivery, in the Office of the Clerk, United States Court of Appeals for the Federal Circuit.

Signature: Daniel H. Bromberg



{ Daniel H. Bromberg }
Attorney for Plaintiffs-Appellants { p.30 }


Certificate of Compliance

In accordance with Federal Rule of Appellate Procedure 32(a)(7)(B) & (C), I certify that this brief complies with the type-volume limitation and contains 6,914 words. In preparing this certificate, I have relied on the word count of the word processing system used to prepare this brief.

Signature: Daniel H. Bromberg



{ Daniel H. Bromberg }


Each footnote appears entirely on the same page with its text reference, except where an embedded page reference marks a carry-over, to the foot of the next page (n.1, n.3, n.4).  CJHjr

 1  See also Ribas y Hijo v. United States, 194 U.S. 315 (1904); Ford v. Surget, 97 U.S. 594 (1878); Juragua Iron Co. v. United States, 97 U.S. 39 (1877); Haycraft v. United States, 89 U.S. 81, 95 (1874); The Brig Amy Warwick (“The Prize Cases”), 67 U.S. (2 Black) 635, 671-74 (1862); Castro v. United States, 500 F.2d 436 (Ct. Cl. 1974); Am. Mfrs. Mut. Ins. Co. v. United Slates, 453 F.2d 1380 { p.7 } (Ct. Cl. 1972); Franco-Italian Packing Co. v. United States, 128 F. Supp. 408, 414 (Ct. Cl. 1955); North German Lloyd v. United States, 61 Ct. Cl. 138, 141 (1925); Gallego, Messa & Co. v. United States, 43 Ct. Cl. 444 (1908).

 2  Citing this Court’s decision in Rith Energy, Inc. v. United States{35kb.html}, 247 F.3d 1355 (Fed. Cir. 2001), cert. denied, 536 U.S. 958 (2002), the Government argues that plaintiffs claiming a taking must acknowledge the correctness as well as the legal authority of the attack on the El-Shifa plant. See Def. Br. at 33-35. That is incorrect. While Rith held that the plaintiff there had to acknowledge the correctness of certain government conduct, it did so because that plaintiff failed to appeal the conduct, not because it asserted a takings claim. See Rith, 247 F.3d at 1366.

 3  See Demurrer, Ingenio Porvenir v. United States, No. F-134, at 31 (Ct. Cl. Oct. 8, 1926) (“If the United States Government was justified under the terms of the treaty in declaring military occupation of the Dominican Republic, ... then the government thus established was a defacto government and is liable, if any government be liable, to claimant for the damages he may have sustained.”); id. (noting that “[t]o determine the true character of the Military Government the { p.16 } Court must necessarily construe the Treaty” and therefore submitting that “the question presented by the record is political rather than legal”).

 4  The Government also notes a decision that relied (at the pleadings stage) on { p.28 } an affidavit averring that Christians have a “diminished testimonial competence” under Sudanese law. Def. Br. at 58 (quoting 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)). But the Government submitted no such evidence below in this case. As a consequence, this argument is not properly before this Court. See, e.g., Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 821 (Fed. Cir. 1992). See generally Singleton v. Wulff, 428 U.S. 106, 120 (1976). In addition, no matter how repugnant religious discrimination may be, it is irrelevant under Section 2502. Far from requiring foreign governments to afford American citizens American-style rights, Section 2502(a) merely requires that “American citizens enjoy an equal standing with foreigners in actions against the foreign State.” Nippon Hodo Co. v. United States, 152 Ct.Cl. 190, 193 (1961).


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

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

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.


Posted Oct. 18 2003. Updated Oct. 27 2003.


Visitors (all pages, from Feb. 10 2008):