Alimanestianu v. United States , 888 F.3d 1374 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
ALEXANDER ALIMANESTIANU, IOANA
ALIMANESTIANU, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF MIHAI
ALIMANESTIANU, IRINA ALIMANESTIANU,
JOANNA ALIMANESTIANU, KATHY
ALIMANESTIANU, EXECUTRIX OF THE ESTATE
OF SERBAN ALIMANESTIANU, NICHOLAS
ALIMANESTIANU, PAULINE ALIMANESTIANU,
EXECUTRIX OF THE ESTATE OF CONSTANTIN
ALIMANESTIANU, SIMONE DESIDERIO,
EXECUTRIX OF THE ESTATE OF CALIN
ALIMANESTIANU,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1667
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00704-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: May 7, 2018
______________________
2 ALIMANESTIANU v. UNITED STATES
JESSE TRAVIS CONAN, Becker, Glynn, Muffly, Chassin
& Hosinski LLP, New York, NY, argued for plaintiffs-
appellants. Also represented by RICHARD NILES CHASSIN.
LOREN MISHA PREHEIM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., REGINALD T. BLADES, JR., ALEXANDER
ORLANDO CANIZARES, ALISON VICKS.
______________________
Before PROST, Chief Judge, CLEVENGER and LINN, Cir-
cuit Judges.
CLEVENGER, Circuit Judge.
Members of the Alimanestianu family (“Appellants”),
who are U.S. nationals, appeal the final decision of the
United States Court of Federal Claims (“the trial court”),
which denied their claim that the United States Govern-
ment committed a taking of their property by espousing
their district court claims and vacating their judgment.
Alimanestianu v. United States, 130 Fed. Cl. 137 (2016).
On appeal, Appellants argue that the Government’s
actions constituted a compensable per se taking, and that
the Supreme Court decision in Horne v. Department of
Agriculture, 135 S. Ct. 2419 (2015), overruled this court’s
governing precedent and mandates payment of just
compensation in this case. We disagree, and affirm the
trial court’s ruling.
BACKGROUND
Mihai Alimanestianu, a U.S. citizen, was killed in the
bombing of UTA Flight 772 by terrorists of the Abu Nidal
Organization (“ANO”) in 1989. The United States De-
partment of State determined that the Libyan govern-
ment sponsored the bombing by providing considerable
support to ANO, including providing a safe haven, train-
ALIMANESTIANU v. UNITED STATES 3
ing, logistical assistance, and monetary support. At the
time of the bombing, Libya enjoyed sovereign immunity
from suit in the United States pursuant to the Foreign
Sovereign Immunities Act (“FSIA”). But in 1996, Con-
gress amended the FSIA to permit claims for money
damages for personal injury or death caused by acts of
foreign sovereigns designated as state sponsors of terror-
ism. 28 U.S.C. § 1605(a)(7) (1996). Libya had been desig-
nated as such a foreign sovereign by the Department of
State as of December 29, 1979. As a result of the 1996
amendment to FSIA, Libya lost its immunity to suit in
the United States.
In 2002, Appellants joined the families of other U.S.
victims of the bombing, and filed an action against the
Libyan government and six high-ranking Libyan officials
(“the Defendants”) in the United States District Court for
the District of Columbia. Compl., Pugh v. Socialist Peo-
ple’s Libyan Arab Jamahiriya, No. 1:02-cv-02026 (D.D.C.
Oct. 16, 2002), ECF No. 1 (“Pugh”). The complaint assert-
ed various state and federal common law and statutory
claims against the Defendants. Am. Compl., Pugh
(D.D.C. May 19, 2006), ECF No. 57. The Defendants
appeared before the district court, and the court subse-
quently granted summary judgment in favor of the plain-
tiffs, entering final judgment on August 8, 2008. Order,
Pugh (D.D.C. Aug. 8, 2008), ECF No. 152 (re-entering the
Order, Pugh (D.D.C. Feb. 7, 2008), ECF No. 96, which
amended the Judgment, Pugh (D.D.C. Jan. 24, 2008),
ECF No. 93). The damages award for all plaintiffs totaled
$6.9 billion, while Appellants received approximately
$1.297 billion. Judgment, Pugh, ECF No. 93. Each of the
Appellants received a multi-million dollar award, includ-
ing: Mihai’s estate; Mihai’s wife, Ioana; Mihai’s children,
Joanna, Nicholas, Irina, and Alex; and the estates of
Mihai’s brothers, Calin, Serbin, and Constantin. Id.The Defendants appealed six days after judgment,
Notice of Appeal, Pugh (D.D.C. Aug. 14, 2008), ECF No.
4 ALIMANESTIANU v. UNITED STATES
156, but that same day, the United States entered into a
Claims Settlement Agreement with the Libyan govern-
ment. Claims Settlement Agreement Between the United
States of America and The Great Socialist People’s Libyan
Arab Jamahiriya, Lb.-U.S., Aug. 14, 2008, T.I.A.S. No. 08-
814 (“Claims Settlement Agreement”). As part of the
Claims Settlement Agreement, Libya agreed to deposit
$1.5 billion into a humanitarian fund, id. at 4, $681
million of which was “to ensure the fair compensation for
the claims of nationals of the United States for wrongful
death or physical injury in those cases described in the
Act which were pending against Libya . . . as well as other
terrorism-related claims against Libya.” Certification
Under Sec. 5(A)(2) of the Libyan Claims Resolution Act
Relating to the Receipt of Funds for Settlement of Claims
Against Libya, U.S. DEP’T OF STATE, 2 (Oct. 31, 2008)
(“Certification”); see also Dep’t of State Pub. Notice 6476,
74 Fed. Reg. 845 (Jan. 8, 2009). Each country agreed that
the deposit would constitute “a full and final settlement of
its claims and suits and those of its nationals,” Certifica-
tion at 2, and each party would be required to
“[s]ecure . . . the termination of any suits pending in its
courts . . . (including proceedings to secure and enforce
court judgments) . . . preclude any new suits in its courts,”
and restore “sovereign, diplomatic, and official immunity
to the other Party . . . .” Claims Settlement Agreement, at
2. Congress codified the Claims Settlement Agreement
through the Libyan Claims Resolution Act (“LCRA”),
providing that, upon receipt of the funds pursuant to the
Claims Settlement Agreement, Libya’s sovereign immuni-
ty would be restored. 28 U.S.C. § 1605A note, Pub. L. No.
110-301, 122 Stat. 2999 (2008).
On October 31, 2008, the Secretary of State certified
receipt of the Libyan funds, Certification at 2, thereby
restoring Libya’s sovereign immunity under the FSIA,
pursuant to the LCRA. President George W. Bush also
issued an Executive Order, providing that any pending
ALIMANESTIANU v. UNITED STATES 5
suit by U.S. nationals, “including any suit with a judg-
ment that is still subject to appeal . . . shall be terminat-
ed.” Exec. Order No. 13,477 § 1(a)(ii), 3 C.F.R. 13447, 73
Fed. Reg. 65965 (2008). The Foreign Claims Settlement
Commission (“the Commission”) 1 retained jurisdiction to
adjudicate and render final decisions over claims of U.S.
nationals referred to the Commission by the Secretary of
State. 22 U.S.C. § 1623(a)(1)(C) (1998). Once implement-
ed, the Settlement Agreement both closed the doors of
U.S. courts to suits against Libya (thus requiring Appel-
lants’ suit against Libya to be dismissed) and espoused
the existing claims of U.S. citizens against Libya (thereby
substituting the United States for the Appellants as
plaintiffs in the espoused claims against Libya).
While Appellants’ district court claims and judgment
were on appeal, the United States filed a “motion to
intervene, vacate judgment, and dismiss [the Appellants’]
suit with prejudice,” arguing that, pursuant to the Claims
Settlement Agreement, LCRA, and Executive Order
13,477, U.S. courts no longer had jurisdiction over terror-
ism-related claims against Libya. U.S. Mot. to Intervene,
Vacate J., and Dismiss Suit with Prejudice at 1, 11–16,
Pugh v. Socialist People’s Libyan Arab Jamahiriya (Nos.
08-5387, 08-5388), (D.C. Cir. Jan. 9, 2009), ECF No. 162-1
1 The Commission is a quasi-judicial, independent
agency within the Department of Justice which adjudi-
cates claims of U.S. nationals against foreign govern-
ments pursuant to international claims settlement
agreements or at the request of the Secretary of State.
See Int’l Claims Settlement Act, 22 U.S.C. § 1621 et seq.,
and War Claims Act, 50 U.S.C. App’x §§ 2001–2007. The
Commission was established in 1954, see Reorg. Plan No.
1 of 1954, 5 U.S.C. App’x, when it assumed the functions
of two predecessor agencies: The War Claims Commission
and the International Claims Commission.
6 ALIMANESTIANU v. UNITED STATES
(“Pugh II”). In its motion, the Government stated that it
had “espoused the terrorism-related claims of U.S. na-
tionals against Libya, including plaintiffs’ claims,” and
“made the plaintiffs’ claims its own.” Id. at 15. The
United States Court of Appeals for the District of Colum-
bia Circuit granted the Government’s motion, vacated
judgment, and directed the district court to dismiss the
case. Pugh II, 2009 WL 10461206, at *1 (D.C. Cir. Feb.
27, 2009) (per curiam). The district court dismissed the
case shortly thereafter. Order, Pugh (D.D.C. Mar. 9,
2009), ECF No. 163.
As for the proceedings before the Commission, the
State Department recommended an award of $10 million
be paid to the estates of individuals who died as a result
of the bombing, and Mihai’s estate received $10 million.
Final Decision at 2, LIB-II-047 (Foreign Claims Settle-
ment Comm’n May 16, 2012) (“2012 Final Decision”). The
State Department also established seven additional
categories of claims for referral to the Commission. Letter
from the Hon. John B. Bellinger, III, Legal Adviser, Dep’t
of State, to the Hon. Mauricio J. Tamargo, Chairman,
Foreign Claims Settlement Comm’n (Jan. 15, 2009).
Appellants brought additional claims under one category
for the “mental pain and anguish” of claimants who were
both U.S. nationals and relatives of the decedent and who
had pending claims against Libya that were dismissed.
Id.; Compl., Alimanestianu v. United States, No. 1:14-cv-
00704, at 8, ¶ 37 (Fed. Cl. Aug. 4, 2014), ECF No. 1
(“Complaint”). 2 The Commission determined that each of
Mihai’s children should receive $200,000 under this
category of recovery, but denied recovery to Mihai’s wife,
2 Commission decisions that grant awards remove
all personally identifiable information. Therefore, sup-
port for Appellants’ awards may be found in Appellants’
complaint before the trial court.
ALIMANESTIANU v. UNITED STATES 7
being the beneficiary of Mihai’s estate, and the estates of
Mihai’s brothers, because they were deceased. Complaint
at 8, ¶ 37.
Dissatisfied with the relief granted by the Commis-
sion, Appellants initiated a Fifth Amendment takings
case against the Government in the Court of Federal
Claims. Appellants alleged that the Government effected
a per se taking by espousing their district court claims
and vacating their judgment against Libya. Their claim
demanded the Government pay over $1.286 billion—the
difference between their district court judgment and the
Commission’s award—in just compensation.
The trial court denied their claim. When faced with
cross-motions for summary judgment, the court deter-
mined that the categorical requirement to pay just com-
pensation in per se takings did not apply to cases where
the Government espouses claims against foreign sover-
eigns. Alimanestianu, 130 Fed. Cl. at 144. Instead, the
trial court found our holding in Abrahim-Youri v. United
States, 139 F.3d 1462 (Fed Cir. 1997), cert. denied sub
nom. Gurney v. United States, 524 U.S. 941 (1998), con-
trolled, and analyzed Appellants’ claims under the regula-
tory taking framework. Alimanestianu, 130 Fed. Cl. at
144. Using this framework, the trial court found Appel-
lants had no reasonable expectation to recover their non-
final judgment against Libya because, at the time of
injury, Libya maintained sovereign immunity and any
potential recovery would be speculative. Id. at 144–45.
The trial court then discussed the Government’s para-
mount right to conduct foreign affairs and “concomitant
right to compromise its nationals’ claims in the process.”
Id. at 145. And finally, the trial court found there was no
dispositive economic impact of the Government’s conduct,
because Appellants received over $10 million that they
likely would not otherwise have had. Id. at 145–46. With
all of the regulatory takings factors weighing in favor of
the Government, the trial court concluded there was no
8 ALIMANESTIANU v. UNITED STATES
compensable taking and granted summary judgment in
favor of the Government.
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1295(a)(3) (2012).
DISCUSSION
We review the trial court’s grant of summary judg-
ment de novo, Nw. Title Agency, Inc. v. United States, 855
F.3d 1344, 1347 (Fed. Cir. 2017) (citing TEG-Paradigm
Environmental., Inc. v. United States, 465 F.3d 1329,
1336 (Fed. Cir. 2006)), applying the same standard as the
trial court, Palahnuk v. United States, 475 F.3d 1380,
1382 (Fed. Cir. 2007). Summary judgment is appropriate
when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.
Nw. Title, 855 F.3d at 1347 (citing Castle v. United States,
301 F.3d 1328, 1336 (Fed. Cir. 2002)).
“Whether a taking has occurred is a question of law
based on factual underpinnings. We conduct a plenary
review of the legal conclusions of the [the trial court]
while reviewing its factual conclusions for clear error.”
Stearns Co. v. United States, 396 F.3d 1354, 1357 (Fed.
Cir. 2005) (internal citations and quotations omitted),
cert. denied, 546 U.S. 875 (2005). In the context of sum-
mary judgment, all factual inferences should be viewed in
a light most favorable to the non-moving party. Matsu-
shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587–88 (1986).
I
The Fifth Amendment prohibits the taking of “private
property . . . for public use, without just compensation.”
U.S. CONST. amend. V, cl. 4. To state a claim for a taking,
Appellants 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. Acceptance
Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir.
ALIMANESTIANU v. UNITED STATES 9
2009). We assume, without deciding, that Appellants had
a cognizable property interest in their district court
claims and non-final judgment. Thus, we must decide
only whether the Government’s actions constituted a
taking. We hold that, even if Appellants have a property
interest in their claims and non-final judgment, no com-
pensable taking occurred under the Fifth Amendment.
Takings claims typically come in two forms: per se or
regulatory. A per se taking involves the appropriation of
private property, including both real, Loretto v. Tele-
prompter Manhattan CATV Corp., 458 U.S. 419, 427
(1982), and personal, Horne, 135 S. Ct. at 2426. To find a
per se taking, there must be either a permanent physical
invasion, Loretto, 458 U.S. at 426, or a denial of all eco-
nomically viable uses of the property, Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1015 (1992). When the
Government commits a per se taking, it has a categorical
duty to pay just compensation. Horne, 135 S. Ct. at 2426.
A regulatory taking involves a “restriction on the use
of property that [goes] ‘too far.’” Id. at 2427 (quoting Pa.
Coal Co. v. Mahon, 260 U.S. 393 (1922)). 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 govern-
mental action,” “the extent to which the regulation has
interfered with distinct investment-backed expectations,”
and “[t]he economic impact of the regulation on the claim-
ant.” 438 U.S. 104, 124 (1978).
Since at least 1799, the President has exercised his
constitutional authority to espouse and settle claims of
U.S. citizens against foreign governments. See Dames &
Moore v. Regan, 453 U.S. 654, 679 n.8 (1981); Shanghai
Power Co. v. United States, 4 Cl. Ct. 237, 243–45 (1983),
aff’d mem., 765 F.2d 159 (Fed. Cir. 1985), cert. denied
474 U.S. 909 (1985) (discussing the history of claim es-
10 ALIMANESTIANU v. UNITED STATES
pousal). We have previously recognized that when claims
are espoused and settled by the Government, they are
effectively extinguished, rather than merely regulated.
Our two leading cases involving governmental espousal of
claims against foreign governments are Belk v. United
States, 858 F.2d 706 (Fed. Cir. 1988) and Abrahim-Youri.
Both cases arose as a result of the Iranian hostage
crisis of 1979–81, where U.S. citizens were held captive in
the U.S. embassy in Tehran. Belk, 858 F.2d at 707;
Abrahim-Youri, 139 F.3d at 1463. In Belk, we were asked
whether the Government committed a compensable
taking by entering the Algiers Accords, which espoused
the claims of U.S. nationals against the Iranian govern-
ment, thus extinguishing their right to sue Iran for dam-
ages done to them by captivity. Belk, 858 F.2d at 707–08;
see Belk v. United States, 12 Cl. Ct. 732, 734 (1987).
Belk thus presented this court with the need to apply
a test by which to measure the claim that the Govern-
ment had caused a compensable taking of private proper-
ty by espousing the plaintiffs’ claims against Iran. The
court turned to the Supreme Court’s analysis of takings
law as explicated in Penn Central. Before composing the
well-known three-part test for assessing regulatory tak-
ings, the Supreme Court observed that whether a com-
pensable taking has occurred largely depends on the
circumstances of a particular case. Penn Central,
438 U.S. at 124 (citing United States v. Central Eureka
Mining Co., 357 U.S. 155, 168 (1958), and United States v.
Caltex, Inc., 344 U.S. 149, 156 (1952)). Understanding
the fundamental difference between the circumstances of
the case at hand and a typical domestic regulation, but
respecting the three-part test in Penn Central for domes-
tic regulatory takings, the Belk court observed that the
takings analysis in the espousal setting should be ap-
proached with the following in mind:
ALIMANESTIANU v. UNITED STATES 11
the degree to which the property owner’s rights
were impaired, the extent to which the property
owner is an incidental beneficiary of the govern-
mental action, the importance of the public inter-
est to be served, whether the exercise of
governmental power can be characterized as novel
and unexpected or falling within traditional
boundaries, and whether the action substituted
any rights or remedies for those that it destroyed.
Belk, 858 F.2d at 709 (citations omitted).
Belk described the foregoing considerations as an “ex-
plication, reflecting the unusual facts of this case” of the
three-part Penn Central test: “the character of the gov-
ernment action, its economic impact, and its interference
with reasonable investment expectations.” Id. (citing
United States v. One (1) 1979 Cadillac Coupe de Ville,
833 F.2d 994, 1000 (Fed. Cir. 1987)).
The court then determined that espousing a citizen’s
claim in the U.S. courts was not a “physical invasion”
traditionally associated with per se takings, but rather
was “the prohibition on the assertion by the appellants of
their alleged damage claims against Iran.” Id. We ap-
plied the Penn Central factors and found that, given the
President’s overwhelming authority in maintaining
foreign relations, and the fact that claimants were the
intended beneficiaries of the Algiers Accords and lacked
any investment-backed expectations, the claimants did
not suffer a compensable taking. Id. at 709–10.
The present case finds an even closer factual analog
in Abrahim-Youri. After the Algiers Accords were entered
into, numerous outstanding claims remained between
U.S. nationals and Iran. Abrahim-Youri, 139 F.3d at
1464. The United States and Iran subsequently entered a
Settlement Agreement, where the United States espoused
and settled all of the claims of its citizens in exchange for
a lump-sum payment from Iran. Id. Like the present
12 ALIMANESTIANU v. UNITED STATES
case, Congress granted the Commission jurisdiction to
adjudicate and distribute awards from the lump-sum to
those who had their federal claims espoused. Id. When
the fund was unable to satisfy the claims, some of those
claimants brought an action against the Government,
alleging that the initial espousal of their claims constitut-
ed a per se taking. Id. at 1464–65. This court noted that,
while the Government’s actions shared some features of a
per se taking, the Penn Central factors remained relevant
to the takings inquiry in this limited context. Id. at 1465–
66. As in Belk, the Abrahim-Youri court affirmed the
judgment of no compensable taking. Id. at 1468.
The question for us, then, is whether the Supreme
Court’s decision in Horne overruled our existing body of
law. We cannot now say that Horne requires a different
result than we reached in Belk and Abrahim-Youri.
Horne involved the Agricultural Marketing Agreement
Act of 1937, which enabled the Secretary of Agriculture to
promulgate marketing orders to regulate particular
agricultural product markets. 135 S. Ct. at 2424. One
order involving the raisin industry required growers to
turn over title to a percentage of their crops to the Raisin
Committee as part of a reserve requirement, without any
compensation. Id. The Committee would then dispose of
the reserved raisins as it deemed necessary, and distrib-
ute a portion of any proceeds back to the growers. Id. A
family of raisin growers and handlers sued the Govern-
ment, arguing the reserve requirement was an unconsti-
tutional taking. Id. at 2424–25.
The Supreme Court began its analysis by noting that
when the Government directly appropriates real or per-
sonal property for its own use, “such an appropriation is a
per se taking that requires just compensation.” Id. at
2425–26. The Court went further, however, stating that
the “physical appropriation of property [gives] rise to a
per se taking, without regard to other factors.” Id. at
2427. It is this statement upon which Appellants rely. If
ALIMANESTIANU v. UNITED STATES 13
their claims and non-final judgment constitute cognizable
property, and the Government entirely appropriated that
property by entering and ratifying the Libyan Claims
Settlement Agreement, then Appellants argue that Horne
mandates the Government pay just compensation, with-
out any consideration of the Penn Central factors.
But we have consistently held that prohibiting or es-
pousing a litigant’s claims by restoring a foreign sover-
eign’s legal immunity is not a physical invasion of
property. See Aviation & Gen. Ins. Co. v. United States,
882 F.3d 1088, 1097 (Fed. Cir. 2018) (“While we recognize
the significant degree to which the Appellants’ rights in
maintaining their lawsuits were impaired—indeed, their
lawsuits were terminated—the Government’s action
nonetheless was not a physical invasion of Appellants’
property rights. Rather, the Government reinstated
Libya’s sovereign immunity for the common good . . . .”);
Belk, 858 F.2d at 709 (“Here there was no physical inva-
sion of property, but only the prohibition on the assertion
by the appellants of their alleged damage claims . . . .”).
Further, Horne addressed the physical invasion and
categorical appropriation of entirely domestic, tangible
property. 135 S. Ct. at 2429. The Supreme Court was not
faced in Horne with events that involved the Govern-
ment’s plenary authority over foreign policy, or property
entangled with international considerations. See Dames
& Moore, 453 U.S. at 679 (“[T]he United States has re-
peatedly exercised its sovereign authority to settle the
claims of its nationals against foreign coun-
tries . . . [where] the President has agreed to renounce or
extinguish claims of United States nationals against
foreign governments in return for lump-sum payments or
the establishment of arbitration procedures.”). This
additional and quite substantial consideration supports
our view that the Penn Central factors remain relevant to
the takings inquiry in cases where the Government
espouses its citizens’ claims against foreign sovereigns. In
14 ALIMANESTIANU v. UNITED STATES
short, without speaking to the Constitutional issues at
play in these types of cases, we do not read Horne to have
undermined our law set forth in Belk and Abrahim-Youri.
We now consider the Penn Central factors to see if
Appellants suffered a compensable taking. Looking to the
character of the governmental action, Appellants provided
no evidence that this factor should weigh in their favor.
As the trial court noted, the Executive has an overwhelm-
ing interest in conducting foreign affairs. Alimanestianu,
130 Fed. Cl. at 145. “Not infrequently in affairs between
nations, outstanding claims by nationals of one country
against the government of another country are ‘sources of
friction’ between the two sovereigns . . . [where] nations
have often entered into agreements settling the claims of
their respective nationals.” Dames & Moore, 453 U.S. at
679. “[T]he United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals
against foreign countries,” whether it be by treaty or
through executive action, and “Congress has implicitly
approved th[is] practice.” Id. at 679–80. Thus, the trial
court correctly observed that the Government was work-
ing well within its Constitutional prerogative in conduct-
ing foreign affairs when it espoused and settled
Appellants’ claims.
As for the extent to which the regulation has inter-
fered with distinct investment-backed expectations,
Appellants have provided no evidence that they had an
investment-backed expectation in their claims and non-
final judgment. First, as Abrahim-Youri points out,
“those who engage in international commerce must be
aware that international relations sometimes become
strained, and that governments engage in a variety of
activities designed to maintain a degree of international
amity.” 139 F.3d at 1468. Further, the claims at issue
were based on a “tenuous jurisdictional grant,” Alimanes-
tianu, 130 Fed. Cl. at 145—the State Sponsor of Terror-
ism exception to FSIA and the government’s designation
ALIMANESTIANU v. UNITED STATES 15
of Libya as a state-sponsor of terrorism—which was
always subject to the ever-evolving relationship between
the two nations, see Republic of Iraq v. Beaty, 556 U.S.
848, 864–65 (2009) (noting that the state of foreign sover-
eign immunity “reflects current political realities and
relationships . . . [which] generally is not something on
which parties can rely in shaping their primary conduct,”
and that “[t]he President’s elimination of Iraq’s later
subjection to suit could hardly have deprived respondents
of any expectation they held at the time of their injury
that they would be able to sue Iraq in United States
courts” (internal quotations omitted)). Furthermore, any
recovery by Appellants of their judgment would depend on
a cooperative Libyan court ordering its government to pay
the judgment, or failing such cooperation, a coercive act
against Libya by some other governmental body to compel
Libyan satisfaction of the judgment. However, Appellants
do not provide any evidence that such efforts have been
successful in the past, or would have been successful in
this case. Thus, the trial court did not err by concluding
that such recovery was speculative, and that espousal did
not interfere overall with any investment-backed expecta-
tion in Appellants’ claims and non-final judgment.
Finally, addressing the economic impact of the regula-
tion on the claimant, the only evidence Appellants provide
is that the Commission’s award was less than their non-
final judgment. But this evidence in no way disputes the
trial court’s observation that Appellants still received
more than they would have without the Government’s
action. Alimanestianu, 130 Fed. Cl. at 145–46. As noted
by the trial court, Mihai’s estate received $10 million, and
each of Mihai’s children received $200,000 through the
Commission, which is likely more than could have been
expected had Appellants attempted to enforce any U.S.
16 ALIMANESTIANU v. UNITED STATES
judgment themselves. 3 Id. Instead, “the Government
provided an alternative [adjudicatory forum] tailored to
the circumstances which produced a result as favorable to
the [Appellants] as could reasonably be expected.”
Abrahim-Youri, 139 F.3d at 1468. Thus, “[w]here, as
here, the private party is the particular intended benefi-
ciary of the governmental activity, fairness and justice do
not require that losses which may result from that activi-
ty be borne by the public as a whole, even though the
activity may also be intended incidentally to benefit the
public.” Belk, 858 F.2d at 709 (internal quotations omit-
ted). “[T]he fact that [Appellants] are not satisfied with
the settlement negotiated by the Government on their
behalf does not entitle them to compensation by the
United States.” Abrahim-Youri, 139 F.3d at 1468. Upon
considering the Penn Central factors, Appellants have
failed to show any evidence to demonstrate that they
suffered a compensable taking. Therefore, the trial court
did not err by granting summary judgment in favor of the
Government.
AFFIRMED
COSTS
No costs.
3 While this court acknowledges that the estates of
Mihai’s brothers were denied recovery before the Com-
mission, arguably tipping the balance of the third factor
in favor of those Appellants, “the question of whether
Appellants were entitled to proceeds from the Libya
Claims Settlement Agreement presents a nonjusticiable
political question.” Aviation, 882 F.3d at 1094. Therefore,
we cannot reach the question of whether those Appellants
should have recovered under the Agreement.