Atamirzayeva v. United States

77 Fed. Cl. 378, 2007 U.S. Claims LEXIS 197, 2007 WL 1805168
CourtUnited States Court of Federal Claims
DecidedJune 20, 2007
DocketNo. 05-1245 L
StatusPublished
Cited by2 cases

This text of 77 Fed. Cl. 378 (Atamirzayeva v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atamirzayeva v. United States, 77 Fed. Cl. 378, 2007 U.S. Claims LEXIS 197, 2007 WL 1805168 (uscfc 2007).

Opinion

OPINION

DAMICH, Chief Judge.

This case is before the Court on Defendant’s motion for judgment on the pleadings pursuant to RCFC 12(e) and RCFC 12(b)(6). Defendant alleges that Plaintiff, a citizen and resident of Uzbekistan, lacks standing to seek compensation under the Fifth Amendment for the razing of her cafeteria by local Uzbek authorities—allegedly at the behest of United States Embassy officials—in Tashkent, the capital city. For the reasons stated below, the Court hereby GRANTS Defendant’s motion.

BACKGROUND1

Plaintiff was the owner, since 1994, of a cafeteria called Feruza that was allegedly situated adjacent to the U.S. Embassy in Tashkent, Uzbekistan until December 1999, when it was destroyed by local Uzbek authorities. Compl. 111. Plaintiff alleges that the local Uzbek authorities seized Plaintiffs property and destroyed Feruza “at the demand of the U.S. Embassy in Tashkent and for its benefit” and that Embassy officials “were physically present and oversaw the demolition of Feruza.” Id. U16. Moreover, Plaintiff asserts that a security checkpoint for the U.S. Embassy is now situated where Feruza was once located. Id. H17.

In August 1998, the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania were bombed by terrorists. Beginning in 1999, limited funds were made available to U.S. State Department facilities around the world to buy or lease property adjacent to existing facilities with the purpose, at least in part, of improving security. Answer 118. On November 29, 1999, President Clinton signed into law the Secure Embassy Construction and Counterterrorism Act of 1999, 22 U.S.C. § 4865, Pub.L. No. 106-113 (1999), which authorized the expenditure of $4.6 billion over five years for the “acquisition of United States diplomatic facilities and, if necessary, any residences or other structures located in close physical proximity to such facilities,” and to provide major security enhancements to the diplomatic facilities. Id. at Sec. 604(b); see also Compl. 1113. Plaintiff opines that the razing of Feruza just weeks later was not mere coincidence. Id. 1115. Plaintiffs requests to the U.S. Embassy and local Uzbek officials for remuneration have been denied. Id. U 23. In support of her claim, Plaintiff has presented the Court with a letter from an Uzbek official in which he asserts that the United States made an oral “demand” to local Uzbek officials to destroy Feruza for “the sake of the security of the U.S. Embassy.” Letter from S.N. Akhme-dov, First Deputy Administrator, Chilanzar District Administration, to Z.A. Atamirzaye-va (July 15, 2005) (attached to Joint Preliminary Status Report).

DISCUSSION

Plaintiff claims she is entitled to just compensation under the Takings Clause of the Fifth Amendment, which provides: “[N]or shall private property be taken for public use, without just compensation.” Defendant argues that a nonresident alien plaintiff seeking compensation for the United States’ involvement in the taking of foreign property lacks standing2 to invoke the Takings Clause unless he or she demonstrates “substantial connections” to the United States.

A. Standard of Review

On Defendant’s motion for judgment on the pleadings, the Court is to assume that all [380]*380well-pled allegations in the complaint are true and indulge all reasonable inferences in favor of the Plaintiff. Owen v. United States, 851 F.2d 1404, 1407 (Fed.Cir.1988). “The legal standard applied to evaluate a motion for judgment on the pleadings is the same as that for a motion to dismiss.” Peterson v. United States, 68 Fed.Cl. 773, 776 (2005). Accordingly, “[¡judgment on the pleadings ... is appropriate where there are no material facts in dispute and the [moving party] is entitled to judgment as a matter of law.” New Zealand Lamb Co., Inc. v. United States, 40 F.3d 377, 380 (Fed.Cir.1994).

B. Analysis

1. Standing Not an Issue in Turney v. United States

The basis of the Defendant’s motion for judgment on the pleadings is that the Plaintiff has no standing.3 In opposition, Plaintiff, inter alia, points to Turney v. United States, 126 Ct.Cl. 202, 115 F.Supp. 457 (1953), where the Court of Claims4 held that the representative of a foreign corporation could recover for a taking by- the United States of the corporation’s property located abroad, based on the Fifth Amendment’s requirement of just compensation. Standing, however, was not identified as an issue in that case.

The facts in Turney are as follows: In the latter half of 1946, the United States transferred the Leyte Air Depot to the Republic of the Philippines, which had become independent of the United States on July 4, 1946. Id. at 458. The Philippine government subsequently sold the supplies and buildings at the Depot to two businessmen, Paul B. Ran-slow and Vernon E. Childers, who were U.S. citizens.5 Id. at 459. The sale was accomplished through the intermediary services of the Foreign Liquidation Commission (presumably a U.S. agency) which submitted bids for sale to the Philippine government. Id. at 458. Three months later, Ranslow and Childers formed a corporation under the law of the Philippines to manage and sell the property.6 Id. at 459; Pl.’s Br., Turney v. United States, at 119 (Dec. 22, 1952). Ran-slow and Childers transferred their interests in the property to the corporation. Turney, 115 F.Supp. at 459. Among the items of property purchased, employees of the corporation discovered classified military radar equipment (of which the United States was unaware). Id. When the United States was informed about the military radar equipment, it sought to reclaim it. Id. While negotiations were under way between the United States and the corporation, the Philippine government, at the suggestion of representatives of the United States, placed an embargo on exportation of any materials at the Leyte Air Depot. Id. at 460. Eventually, the embargo was lifted for property other than the disputed radar equipment. Id.

With the agreement of the Philippine government, U.S. Army Captain Royce, with a team of enlisted men, segregated the radar equipment at Leyte. Id. Royce and the corporation entered into a written agreement whereby the radar equipment would be returned to the United States and a “full re[381]*381ceipt” for the equipment would be given to the corporation. Id. In the agreement, the corporation stated that it intended to make a claim against the United States for losses in connection with the equipment. Id. Soon thereafter, the corporation was liquidated, and Edward Turney, a U.S. citizen, was designated liquidating trustee. Id. at 460-61.

Initially, the Philippine corporation brought suit against the United States, but later Turney was substituted as plaintiff.7

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Bluebook (online)
77 Fed. Cl. 378, 2007 U.S. Claims LEXIS 197, 2007 WL 1805168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atamirzayeva-v-united-states-uscfc-2007.