In the United States Court of Federal Claims No. 16-1090 Filed: July 11, 2019
) TEMOR S. SHARIFI, ) ) Plaintiff, ) ) Takings Clause; Act of State Doctrine; v. ) Real Property; Cognizable Property ) Interests; Foreign Law. THE UNITED STATES, ) ) Defendant. ) ) )
Carolyn L. Gaines, Philadelphia, PA, for plaintiff. Edward Carlos Thomas, IV, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for defendant. OPINION FUTEY, Senior Judge This case is before the Court on defendant’s motion to dismiss plaintiff’s amended
complaint (“Am. Compl.”), which was filed on February 15, 2017, pursuant to rules 12(b)(1) and
12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”). Defendant filed its motion on
April 10, 2017. Plaintiff filed a response on May 11, 2017, and the defendant filed its reply on
May 30, 2017. After hearing oral argument on the motion, the Court ordered supplemental
briefing. Defendant filed its supplemental brief on October 24, 2017, and the plaintiff filed a
response on November 21, 2017.
The plaintiff, a United States citizen, seeks damages for a taking of real property by the
United States in Afghanistan. In its motion to dismiss, the defendant makes four arguments:
First, the defendant argues that the United States may not be held liable for a taking carried out by an international military coalition. Second, the defendant argues that plaintiff’s lawsuit is
barred by the act of state doctrine. Third, the defendant urges dismissal because plaintiff has
failed to “identify the specific property interest alleged to have been taken by the United States”
as required by RCFC 9(i). Lastly, the defendant argues that plaintiff has not shown he is the
owner of the land.
The matter is now ripe for disposition.
I. BACKGROUND
a. Factual Background1
The amended complaint alleges as follows: Approximately 100 years ago, plaintiff’s
grandfather—Haji Mohammad Sharif—acquired 38 jeribs2 in Deh-e-Kowchay, Arghandab
District, Kandahar in Afghanistan. ECF No. 10 (“Am. Compl.”) ¶¶ 4–5. Plaintiff’s grandfather
then allegedly passed the land down to plaintiff’s father—Haji Abdul Ghafur Khan. Id. ¶ 6. In
April 2004, after plaintiff’s father died, plaintiff and his siblings entered into an agreement to
subdivide the land. Id.; see also id. Ex. A (inheritance agreement).3 Plaintiff then leased his land
to a tenant, who used it for farming. Id. ¶ 10.
In October 2010, Walter A. Reed—a United States Company Commander—
recommended that the United States Army (“U.S. Army”) establish a command outpost near
1 Specific dates for events are provided, except where the amended complaint specifies only to the nearest month and no primary document bearing the applicable date has been filed. See, e.g., Am. Compl. ¶ 16. 2 A jerib is a “unit of land measurement equivalent to 2,000 square metres or one fifth of a hectare.” Liz Alden Wily, Land, People, and the State in Afghanistan 2002–2012, Afg. Res. & Evaluation Unit, at 2 (Feb. 2013). 3 Defendant disputes the legal effectiveness of plaintiff’s inheritance agreement as well as his proof of land ownership. See Gov’t Ex. 6. The Court addresses those arguments later in this Opinion. 2 Deh-e-Kowchay. Gov’t Ex. 3. Commander Reed investigated ownership of the field where the
U.S. Army wished to construct an outpost, but the identity of the owner or owners was
“unknown.” Id. Plaintiff alleges that Commander Reed then met twice with plaintiff’s brother to
discuss the possibility of leasing plaintiff’s land. Am. Compl. ¶¶ 7–8.4 At some point, plaintiff
instructed his brother not to return to the U.S. Army base where he had met with Commander
Reed “for security purposes and to protect his family.” Id. ¶ 11.
On October 18, 2010, the government of Afghanistan granted the U.S. Army a one-year
“License for Construction” (hereinafter “license” or “license agreement”) to build a combat
outpost. Gov’t Ex. 3. The license applies to land “outside the village of Deh-e-Kowchay . . .
described in Exhibit A and depicted on the map at Exhibit B.”5 Id. The license “warrants that
[the government of Afghanistan] is the rightful and legal owner of the herein described
premises.” Id. The license also provides that, “If the title of the [government of Afghanistan]
shall fail, or if it be discovered that the [government of Afghanistan] did not have authority to
issue this License the [United States] shall have the option to terminate this Right-of-Entry and
the [government of Afghanistan] agrees to indemnify the [United States] by reason of such
failure.” Id.
4 Then-Commander (now-Major) Reed remembers these conversations differently. According to Commander Reed, he communicated to two individuals “that [he] had no authority to bind the U.S. government in either a lease or an offer to purchase the land.” Gov’t Ex. 3. Commander Reed also informed his counterparties that “they needed to prove to the proper official in the Arghandab District government that they owned the land because the land was committed to use by U.S. and Afghan forces by the Arghandab District government.” Id. At this early stage, the Court may not wade into these factual disputes and accepts plaintiff’s allegation that Commander Reed expressed some interest in leasing the land from its owner. See Athey v. United States, 908 F.3d 696, 705 (Fed. Cir. 2018) (“The court must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor of the claimant.”). 5 The defendant did not include either “Exhibit A” or “Exhibit B” in its submissions to this Court, so the precise geographic scope of the license is unclear. 3 The license also appears to contemplate a future acquisition of additional land by the
District Governor of Arghandab (“District Governor”). Id. It goes on to state, “Upon purchase
we will move the necessary establishments to new boundary line.” Id. Whether such an
acquisition—or corresponding adjustment in boundary lines—ever took place is unclear.
The signature block of the license indicates that one individual signed on behalf of the
“Government of the Islamic Republic of Afghanistan,” and another individual signed on behalf
of “The United States of America.” Id. A third line, labeled “Owner of Land,” is blank. Id.
In October and November 2010, the U.S. Army, the Afghan National Army, the Afghan
National Police, private contractors, and other elements of the International Security Assistance
Force (“ISAF”)6 built Combat Outpost Millet (“COP Millet”). Gov’t Ex. 3.
The plaintiff later discovered that the U.S. Army had demolished houses and trees to
construct COP Millet. Am. Compl. ¶¶ 9, 14. He telephoned Commander Reed with the intent to
provide proof of ownership. Id. ¶ 12. Plaintiff also spoke with other U.S. Army personnel. Id. ¶
13.
On December 7, 2010, plaintiff wrote a letter to the Governor of Kandahar (“Governor”)
requesting compensation for the U.S. Army’s occupation of his land. Id. Ex. A. On January 3,
2011, the Governor referred plaintiff’s request to the District Governor. Id. The District
Governor responded by verifying that Haji Mohammad Sherif (plaintiff’s grandfather) owned the
land in question. Id.
6 The United Nations Security Council formed the ISAF on December 20, 2001 “to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment.” U.N. Docs. S/RES/1386 (Dec. 20, 2001). 4 On June 3, 2012, plaintiff wrote a letter to the District Governor again requesting
compensation. Id. Plaintiff also petitioned the Governor asking for assistance. Id. On July 17,
2012, the Governor again referred plaintiff’s request to the District Governor. Id. Sometime
thereafter, the District Governor responded that the U.S. Army had taken the property in question
but had not paid rent or other compensation.7 Id.
In September 2012, then-Commander Barry F. Huggins executed a “Statement of Intent
for the Transfer of COP Millet.” Gov’t Ex. 5. The statement memorialized the ISAF’s intent to
turn over COP Millet to the Afghan Uniform Police on September 25, 2012. Id. The statement
bears Huggins’s signature, in his capacity as a Colonel in “2/2 SBCT.”8 Id.
In December 2012, plaintiff filed a complaint with the United States Department of
Defense but did not receive a response. Am. Compl. ¶ 16. On December 12, 2016, plaintiff sent a
letter to the District Governor, together with a sketch of plaintiff’s land, asking that the District
Governor verify plaintiff’s ownership. Id. Ex. A. The District Governor responded by verifying
plaintiff’s ownership. Id.
b. Procedural Background
On August 31, 2016, plaintiff filed a complaint in this Court. ECF No. 1. On October 24,
2016, defendant filed a motion for a more definite statement pursuant to RCFC 12(e). ECF No.
5. On November 10, 2016, plaintiff filed a response, and on November 21, 2016, defendant filed
7 It is not clear if the District Governor was aware of the existence of the license agreement. 8 “2/2 SBCT” stands for 2nd Stryker Brigade Combat Team, 2nd Infantry Division. See Gov’t Ex. 5. 5 a reply. ECF Nos. 6, 7. On February 1, 2017, the Court granted defendant’s motion for a more
definite statement and directed plaintiff to file an amended complaint. ECF No. 8.
On February 15, 2017, plaintiff filed an amended complaint. ECF No. 10. The amended
complaint requests $1,400,000.00, plus interest, as just compensation for the taking of plaintiff’s
property. Am. Compl. ¶ 19. The amended complaint also requests costs and attorney’s fees. Id.
On April 10, 2017, defendant filed a motion to dismiss (“Gov’t Mot.”), together with
accompanying exhibits and declarations (“Gov’t Ex. 1–6”). ECF No. 13. On May 11, 2017,
plaintiff filed a response (“Pl.’s Resp.”), and on May 30, 2017, defendant filed a reply (“Gov’t
Reply”). ECF Nos. 14, 15.
On September 19, 2017, the Court heard oral argument on the defendant’s motion
(“9/19/17 Tr.”). ECF No. 19. That same day, the Court ordered supplemental briefing
“addressing Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953), as well as the relevant laws
of Afghanistan.” ECF No. 17.
On October 24, 2017, defendant filed a supplemental brief (“Gov’t Supp. Br.”), and on
November 21, 2017, plaintiff filed a response (“Pl.’s Supp. Br.”). ECF Nos. 23, 24. On
December 1, 2017, plaintiff moved for leave to file additional exhibits with his supplemental
brief. ECF No. 25. On December 4, 2017, the Court granted the motion to file additional
exhibits. ECF No. 26.
On July 10, 2018, the Court again heard oral argument on the motion to dismiss
(“7/10/18 Tr.”). ECF No. 32. On May 3, 2019, the case was transferred to the undersigned. ECF
No. 33.
6 II. DISCUSSION
The defendant moves to dismiss the amended complaint for four independent reasons.
First, defendant argues that the United States may not be held liable for a taking carried out by
the ISAF and/or the government of Afghanistan. Gov’t Mot. at 6–8. Second, defendant argues
that plaintiff’s lawsuit is barred by the act of state doctrine. Id. at 8–10. Third, defendant urges
dismissal because plaintiff has failed to “identify the specific property interest alleged to have
been taken by the United States” as required by RCFC 9(i). Id. at 10–12. Lastly, defendant
argues that plaintiff has not shown he is the owner of the land identified in the amended
complaint. Id. at 12–17. The Court addresses each of these arguments in turn.
a. Legal Standard
Rule 12(b)(6) permits a party to file a motion to dismiss for “failure to state a claim upon
which relief can be granted.” RCFC 12(b)(6). “To survive a motion to dismiss, a complaint must
contain sufficient factual allegations that, if true, would state a claim to relief that is plausible on
its face.” Athey, 908 F.3d at 705 (internal quotations omitted). “The court must accept well-
pleaded factual allegations as true and must draw all reasonable inferences in favor of the
claimant.” Id.
The Fifth Amendment provides that “private property” may not be “taken for public use,
without just compensation.” U.S. Const. amend. V. “To state a claim for a taking, [plaintiffs]
must establish: (1) that they had a cognizable property interest, and (2) that their property was
taken by the United States for a public purpose.” Alimanestianu v. United States, 888 F.3d 1374,
1380 (Fed. Cir. 2018).
7 “Takings claims typically come in two forms: per se or regulatory.” Id. “To find a per se
taking, there must be either a permanent physical invasion, or a denial of all economically viable
uses of the property.” Id. (citations omitted). “When the Government commits a per se taking, it
has a categorical duty to pay just compensation.” Id. “A regulatory taking involves a restriction
on the use of property that [goes] ‘too far.’” Id. (internal quotations omitted) (modification in
original). “To determine whether a Government action goes ‘too far,’ courts have traditionally
utilized a three-pronged factual inquiry illuminated by Penn Central Transportation Co. v. City
of New York, which looks to: ‘the character of the governmental action,’ ‘the extent to which the
regulation has interfered with distinct investment-backed expectations,’ and ‘[t]he economic
impact of the regulation on the claimant.’” Id. at 1380–81 (modification in original).
The amended complaint appears to allege a per se taking. See Am. Compl. ¶ 9 (“houses
and trees” were “demolished”). The Court, however, does not need to decide which legal
framework applies at this stage because none of defendant’s arguments for dismissal turns on the
per se versus regulatory distinction.
b. The United States May Have Taken Private Property to Construct Combat Outpost Millet The defendant argues the United States is not liable, because the construction of COP
Millet was carried out by the ISAF together with the government of Afghanistan. Gov’t Mot. at
6–8. Plaintiff responds that the United States took his property, as evidenced by the license
between the United States and the government of Afghanistan. Pl.’s Resp. at 3–5.
In support of its position, defendant invokes Standard-Vacuum Oil Co. v. United States,
153 F. Supp. 465 (Ct. Cl. 1957), for the proposition that the United States cannot be held liable
8 for takings committed by international military coalitions, even if the United States is a member
of that coalition. Gov’t Mot. at 7.
Standard-Vacuum dealt with the status of certain property in Japan after World War II.
During the war, the Japanese government seized the plaintiff’s property. 153 F. Supp. at 465.
After the Japanese government surrendered, the Supreme Commander for the Allied Powers
established procedures for individuals like the plaintiff to recover seized property. Id. at 466. The
plaintiff then filed requests in accordance with those procedures. Id. In response, the Supreme
Commander for the Allied Powers directed the Japanese government to restore title to the
plaintiff, but temporarily retained possession of some items that were being used by occupation
forces. Id.
The Court of Claims held that “all action taken was by the Supreme Commander for the
Allied Powers, not by the United States.” Id. On that basis, the court held that “[t]here was no
taking by the United States and thus the Government is not liable under the [F]ifth
[A]mendment.” Id. “To hold otherwise,” the court reasoned, “would be to open the door to
claims of not only citizens but noncitizens alike for all occupancy by the Allied Powers, thus
causing the United States to bear almost the entire financial burden, not only of the war but also
of the peace.” Id. at 466–67.
In response, plaintiff relies on Turney, the case this Court asked the parties to address in
supplemental briefing. Turney dealt with a takings claim arising out of the disposal of military
surplus in the Philippines after World War II. The facts are complex; suffice to say that a central
question in the case was whether the United States was responsible for a taking carried out by the
government of the Philippines when it imposed an embargo on the export of certain radar
equipment. 115 F. Supp. at 463. The Court of Claims held that the United States was liable,
9 because “relations, at the time, between our Government and the Philippine Government, were
close.” Id. As evidence of close relations, the Court of Claims cited the following facts:
Our armed forces had just liberated the Philippines from the Japanese. Our Government had given one hundred million dollars worth of surplus property to the Philippines, including the property at the Leyte Air Depot, and had sold the property for the account of the Philippine Government. When we requested that Government to place an embargo upon the exportation of any of the property, it, naturally, readily complied. That put irresistible pressure upon the corporation to come to terms with the United States Army, the terms being that the radar equipment would be segregated in charge of the Army and would not be disposed of until a final agreement was reached as to its disposition. The final agreement turned the property back to the Army in exchange for a receipt, and with a reservation of the right to sue for its value. Id. at 463–64.
In their supplemental briefs, the parties debate whether Standard-Vacuum or Turney is
more analogous to this case. See Pl.’s Supp. Br. at 1–4; Gov’t Supp. Br at 3–6. But neither party
analyzes the facts using the Federal Circuit’s more recent test for whether the United States is
liable for takings committed by international entities. See Erosion Victims of Lake Superior
Regulation v. United States, 833 F.2d 297, 299 (Fed. Cir. 1987).
“One seeking just compensation from the United States for actions of an international
organization must show ‘sufficient direct and substantial United States involvement.’” Id.
(quoting Langenegger v. United States, 756 F.2d 1565, 1571 (Fed. Cir. 1985)). “That required
showing depends on the sum of two factors: (1) the nature of the United States’ activity, and (2)
the level of benefit the United States has derived.” Id.
The plaintiff has alleged facts that, if proven, would show the United States was involved
in the construction of COP Millet to a sufficient degree to find a Fifth Amendment taking. The
United States was a signatory to the license agreement with the government of Afghanistan that
10 authorized entry onto the land in question. Gov’t Ex. 3. And, the United States derived a clear
benefit from that license agreement; namely, the ability to construct COP Millet as housing and
protection for its forces. See id. (“COP Millet was intended to be used as a patrol base from
which soldiers could patrol the sector.”).
The defendant’s reliance on Standard-Vacuum assumes the United States was acting as a
mere agent of the ISAF when it entered into the license agreement. In fact, however, no mention
of the ISAF appears on the license. Gov’t Ex. 3. Defendant asks the Court to take notice of the
fact that on July 31, 2006, the ISAF took command of the southern region of Afghanistan,
including Kandahar. Gov’t Mot. at 7 (citing ISAF’s mission in Afghanistan (2001-2014)
(Archived), NATO (updated Sept. 1, 2015), available at
https://www.nato.int/cps/en/natohq/topics_69366.htm). Assuming the information on the NATO
website is accurate, the ISAF’s leadership role in Kandahar at the time of the alleged taking does
not exclude the possibility of independent activities undertaken by the United States. Cf.
Progress toward Security and Stability in Afghanistan, U.S. Dept. of Defense, at 27 (Jan. 2009),
available at https://dod.defense.gov/Portals/1/Documents/pubs/OCTOBER_1230_FINAL.pdf
(“U.S. forces are deployed to Afghanistan either as part of Operation Enduring Freedom (OEF),
or the [ISAF].”). Drawing all reasonable inferences in plaintiff’s favor, a reasonable fact-finder
could find that the United States entered into the licensing agreement on its own behalf, even if it
did so to facilitate the construction of COP Millet by the ISAF. Consequently, plaintiff has
plausibly alleged that the United States was directly and substantially involved in the taking of
the disputed land.
In its reply brief, defendant argues that—during the relevant time period—United States
forces in Kandahar operated exclusively under the direction of the ISAF. Gov’t Reply at 4; Gov’t
11 Supp. Br. at 4. That argument may carry the day at summary judgment but, at this stage, would
require fact-finding that is inappropriate in evaluating a motion to dismiss. See Athey, 908 F.3d at
705; see also Glob. Freight Sys. Co. W.L.L. v. United States, 130 Fed. Cl. 780, 789 (Fed. Cl.
2017) (denying a motion to dismiss because the question of “‘direct and substantial [United
States] involvement’ requires a factual assessment which cannot be made on the basis of the
allegations at this early stage of litigation”).
The defendant’s other arguments on the question of the United States’ involvement are
insufficient to justify dismissal. For example, defendant argues that Afghanistan should be liable
for any taking because COP Millet was constructed “with the full knowledge and support of the
Afghan government.” Gov’t Mot. at 7. That is not the law. In Turney, there was no doubt that the
United States took the plaintiff’s property with the full knowledge and support of the government
of the Philippines, but the Court of Claims nevertheless found the United States liable. See 115
F. Supp. at 463.
The defendant next argues that “the Afghan forces stationed at COP Millet outnumbered
the ISAF forces,” and that “Afghanistan “has been [] the sole occupant [of COP Millet] since
September 2012.” Gov’t Mot. at 7–8. But, “[i]t is [] an accepted principle that it is not essential
for the government to have taken property for its own use for a taking to be found.”
Langenegger, 756 F.2d at 1570 (citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229
(1984)). The United States may not take property and subsequently avoid its obligation to pay
just compensation by placing that property at someone else’s disposal.
c. The Act of State Doctrine Does Not Bar Plaintiff’s Claims
The act of state doctrine bars United States courts “from declar[ing] invalid the official
act of a foreign sovereign performed within its own territory.” W.S. Kirkpatrick & Co. v. Envtl.
12 Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990). It is “a consequence of domestic separation of
powers, reflecting ‘the strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder’ the conduct of foreign affairs[.]” Id. at
404 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)). “Under that
doctrine, the courts of one state will not question the validity of public acts (acts jure imperii)
performed by other sovereigns within their own borders, even when such courts have jurisdiction
over a controversy in which one of the litigants has standing to challenge those acts.” Republic of
Austria v. Altman, 541 U.S. 677, 700 (2004). The party asserting the applicability of the act of
state doctrine bears the burden of proof. See Alfred Dunhill of London, Inc. v. Republic of Cuba,
425 U.S. 682, 694–95 (1976); see also Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir.
1989).
In Kirkpatrick, the Supreme Court made clear that the act of state doctrine “is not some
vague doctrine of abstention but a ‘principle of decision binding on federal and state courts
alike.’” Kirkpatrick, 493 U.S. at 406 (original emphasis) (quoting Sabbatino, 376 U.S. at 427);
see also Kashef v. BNP Paribas S.A., 2019 WL 2195619, at *4 (2d Cir. May 22, 2019) (“[The act
of state doctrine] is not a categorical rule of abstention that prohibits courts from deciding cases
or controversies whenever issues of foreign relations arise.”). “Act of state issues only arise
when a court must decide—that is, when the outcome of the case turns upon—the effect of
official action by a foreign sovereign.” Kirkpatrick, 493 U.S. at 406 (original emphasis). In
addition, even if the doctrine is technically available, there are instances when “the policies
underlying the act of state doctrine may not justify its application” and it should not be invoked.
Id. at 409; see also Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1072–73 (9th Cir.
2018) (“The Supreme Court has indicated that even when the two mandatory elements [of the act
13 of state doctrine] are satisfied, courts may appropriately look to additional factors to determine
whether application of the [] doctrine is justified.”). In Sabbatino, the Supreme Court articulated
three possible factors that may weigh against application of the doctrine:
[T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches. The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence . . . for the political interest of this country may, as a result, be measurably altered. Sabbatino, 376 U.S. at 428 (cleaned up). The defendant argues that the act of state doctrine bars the Court from adjudicating
plaintiff’s claim, because finding for plaintiff would require the Court to invalidate the license
agreement, within which the government of Afghanistan represented that “it is the rightful and
legal owner of [the property] and has the legal right to enter into this License.” Gov’t Ex. 3.
Defendant contends that, because “a threshold issue in a Fifth Amendment takings case is
whether a plaintiff owns the land allegedly taken,” for the Court to rule for plaintiff, it would
have to invalidate the license agreement. Def. Mot. at 9; Def. Reply at 6.
The plaintiff responds that the act of state doctrine does not apply, because it “is not
seeking to invalidate the actions of a foreign sovereign.” Pl. Resp. at 6. In addition, the license is
ambiguous as to whether the Afghan government did warrant it owned the land. Id.
14 The Court does not decide whether the act of state doctrine applies, because, assuming
that it does, defendant has not met its burden to show that the policies underlying the doctrine
justify its application in this case. See Alfred Dunhill, 425 U.S. at 694–95; see also Nat’l Coal.
Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 350 (C.D. Cal. 1997) (“When
applying the Sabbatino test, the party asserting the applicability of the act of state doctrine bears
the burden of proof.”).
Sabbatino’s first factor cautions against applying the doctrine when there is a high
“degree of codification or consensus concerning a particular area of international law[,]” so that
a court need not focus “on the sensitive task of establishing a principle not inconsistent with the
national interest or with international justice.” 376 U.S. at 428 (cleaned up). Defendant has
offered nothing suggesting how international law and international justice are implicated by the
Court ruling on a takings claim against the United States by a United States citizen, albeit on
foreign soil.
Similarly, regarding the second Sabbatino factor, defendant has not shown the
importance of the implications, if any, on United States foreign relations of potentially finding
the license agreement invalid. Indeed, the fact that the license itself contemplates that the
government of Afghanistan “did not have authority to issue this License” in the indemnity
clause, Gov’t Ex. 3, and the alleged fact, which the Court at this stage accepts as true, that the
District Governor verified that plaintiff’s grandfather owned the land in question, Am. Compl.
Ex. A., suggest that potentially finding the license agreement invalid does not have meaningful
foreign policy implications.
As to the third Sabbatino factor, while the government of Afghanistan is still in existence,
this alone does not warrant applying the act of state doctrine. See Unocal, 176 F.R.D. at 353–54
15 (finding that, despite the foreign government’s continued existence, “the balance [of the
Sabbatino factors] weighs against invocation of the act of state doctrine”). Because defendant
has failed to prove that “passing on the validity” of the license agreement may “hinder the
conduct of foreign affairs” the Court declines to invoke the act of state doctrine. Kirkpatrick, 493
U.S. at 405 (citations omitted).
d. Plaintiff has Failed to Plead Ownership of the Disputed Land
To claim a Fifth Amendment taking, a plaintiff must show “a cognizable property
interest.” Alimanestianu, 888 F.3d at 1380; see also Acceptance Ins. Companies, Inc. v. United
States, 583 F.3d 849, 854 (Fed. Cir. 2009) (“First, the court determines whether the claimant has
identified a cognizable Fifth Amendment property interest that is asserted to be the subject of the
taking.”). “The Constitution neither creates nor defines the scope of property interests
compensable under the Fifth Amendment.” Maritrans Inc. v. United States, 342 F.3d 1344, 1352
(Fed. Cir. 2003). “Instead, ‘existing rules and understandings’ and ‘background principles’
derived from an independent source, such as state, federal, or common law, define the
dimensions of the requisite property rights for purposes of establishing a cognizable taking.” Id.
(quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992)). In this case, the
independent source of law that plaintiff invokes is the law of Afghanistan.
Rule 44.1 of this Court states, “In determining foreign law, the court may consider any
relevant material or source, including testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence. The court’s determination must be treated as a
ruling on a question of law.” RCFC 44.1. The purpose of Rule 44.1 is “to make the process of
determining alien law identical with the method of ascertaining domestic law to the extent that it
is possible to do so.” Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865,
16 1873 (2018) (quoting 9A Alan Wright et al., Federal Practice & Procedure § 2444 (3d ed.
updated Apr. 2019)) (describing the identically-worded Rule 44.1 of the Federal Rules of Civil
Procedure).
The defendant contests the validity of plaintiff’s property interest in two ways. First,
defendant challenges the validity of plaintiff’s proof of ownership. Gov’t Mot. at 12–15. Second,
defendant challenges the effectiveness of plaintiff’s inheritance agreement with his siblings. Id.
at 15–16. The Court begins with the first issue, plaintiff’s proof of ownership.
The Court proceeds cautiously, mindful of the fact that it is “very difficult to determine
. . . the legitimate owners of land and property in Afghanistan,” and that “for much of
Afghanistan’s recent history people have had no alternative but to use customary documents to
validate land and property transfers as there has been no functioning official judicial system.”
Conor Foley, A Guide to Property Law in Afghanistan, Nor. Refugee Council, at 34, 36 (2d ed.
2011).
The Law on Land Management Affairs, revised by the Taliban in 2000 and again by the
government of Afghanistan in 2008, states that seven types of documents may serve as proof of
land ownership: (1) documents of a legal court; (2) a decree issued by the emirate and the prime
ministry, if registered; (3) tax receipts; (4) proof of water rights; (5) customary deeds from before
1975, witnessed before 1978; (6) registered title documents; or (7) title documents obtained by
court order. See id. at 34–36; An Introduction to the Law of Afghanistan, Stan. Afg. Legal Educ.
Project, at 117–18 (3d ed. 2011); Liz Alden Wily, Land Rights in Crisis: Restoring Tenure
Security in Afghanistan, Afg. Res. & Evaluation Unit, at 34, 111–12 (Mar. 2003).
17 The plaintiff has not proffered any document that fits into any of the seven categories
listed above. Instead, plaintiff has submitted two letters from the District Governor: one letter
that purports to verify plaintiff’s grandfather’s ownership of the property, and another that
purports to verify plaintiff’s present-day ownership. Am. Compl. at Ex. A; see also ECF No. 25-
1 (supplemental exhibit). A letter from a District Governor does not constitute proof of land
ownership under the laws of Afghanistan. Consequently, plaintiff has not shown “a cognizable
property interest.” Alimanestianu, 888 F.3d at 1380.
In an attempt to surmount his lack of legally effective documentation, plaintiff invokes
the prevalence of informal custom in Afghanistan as the predominant means of facilitating land
transactions. Pl.’s Resp. at 9–10. It appears, based on the Court’s research, that plaintiff is correct
that “formal registration and titling has never been widespread.” Erica Gaston & Lillian Dang,
Addressing Land Conflict in Afghanistan, U.S. Inst. of Peace, Special Rep. 372, at 7 (June 2015);
see also Yohannes Gebremedhin, Land Tenure and Administration in Rural Afghanistan: Legal
Aspects, Terra Inst., at 26 (Sept. 2007). Nevertheless, “for the most part Afghan law only
recognizes land ownership based on formal documents.” Gaston & Dang, supra, at 7. The fact
that Afghan property law is rarely followed in certain communities puts plaintiff in an
unfortunate bind, but not the sort of bind this Court is empowered to resolve by disregarding
those laws entirely.
Because plaintiff has not shown a cognizable property interest, the Court does not need to
address defendant’s argument that the amended complaint fails to meet the specific pleading
requirements of RCFC 9(i), i.e., that a party “must identify the specific property interest alleged
to have been taken.” The Court also does not need to address whether plaintiff’s inheritance
18 agreement with his siblings was valid, even though the siblings did not submit their agreement to
a court for approval.
III. CONCLUSION
For the above stated reasons, the following is hereby ordered:
1. Defendant’s motion to dismiss is GRANTED.
2. Plaintiff’s amended complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly. No costs.
IT IS SO ORDERED.
s/ Bohdan A. Futey BOHDAN A. FUTEY Senior Judge