Abbas v. United States , 124 Fed. Cl. 46 ( 2015 )

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FILED
No. 15-229C
(Filed: October 21, 2015) oCT 2 I 2015
U,S, COURT OF
FEDERAL CI."AIMS
HASSAN A, ABBAS,
Plaintiff, Pro Se; Rule 12(bX1), Subject-Matter
Jurisdiction; Rule 12(b)(6), Failure to
State a Claim; Fifth Amendment Takings;
Seventh Amendment.
THE TINITED STATES,
Defendant.
Hassan Abbas, Hanover Park, IL, Plaintiff pro se.
James Sweel, Trial Attorney, Martin F. Hockey, Jr., Assistant Director, Robert E.
Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attomey General,
commercial Litigation Branch, civil Division, United States Department of Justice, washington,
DC, for Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiffpro se, Hassan Abbas, brought this action alleging a takings ofhis right to
enforce certain unvalidated German bearer bonds in United States courts, in violation of the Fifth
Amendment of the United States Constitution, and alleging a violation of his right to trial by jury
under the Seventh Amendment ofthe United States Constitution. See generally Compl. The
government has moved to dismiss plaintiff s complaint for lack of subject-matter jurisdiction and
failure to state a claim upon which relief may be granted, pursuant to Rules l2(b)(1) and 12(bX6)
of the Rules of the United States Court of Federal Claims C'RCFC). See generally Def' Mot;
RCFC l2(b)(l); RCFC 12(b)(6). For the reasons set forth below, the Court GRANTS
defendant's motion to dismiss.
II. FACTUAL AND PROCEDURAL BACKGROUND'
A. Factual Background
Plaintiff is an attomey admitted to the bar of the State of lllinois. Compl. at 1. On March
6,2015, plaintiff commenced this action against the United States, seeking compensation for an
alleged takings of his right to enforce certain WWI-er4 unvalidated German bearer bonds that he
has acquired in United States courts. See generally Compl. Plaintiff also alleges a violation of
his right to a trial by jury under the Seventh Amendment of the United States Constitution. 1d.
Specifically, plaintiff alleges that the govemment has taken his property interest in the
Bonds without just compensation, by entering into the Agreement Regarding Certain Matters
Arising from the Validation of German Dollar Bonds in 1953 ("Validation Treaty"). Compl. at 1-
4, 7; Pl. Opp. at 2l; April 1, 1953, 4 U.S.T. 885. Plaintiff also alleges that the govemment has
deprived him of his Seventh Amendment right to trial byjury by entering into the Validation
Treaty. Compl. at 3.
1 The Bonds
Plaintiff owns unvalidated German bearer bonds valued at approximately 1000 USD (the
"Bonds"). Compl. at l, 6; Pl. Opp. at 2. It is undisputed that plaintiffdid not own the Bonds at
the time that the United States entered into the Validation Treaty. Pl.Opp.at2l;April 1,1953,
4 U.S.T. 885.
In fact, plaintiff acknowledges that he did not acquire the Bonds upon their first issuance.
Pl. Opp. at 2l . Plaintiff has not, however, provided the Court with any other information about
when-or under what circumstances-he acquired the Bonds. Pl. Opp. at 21.
Prior to commencing this action, plaintiff served as the attomey representing a group of
bondholders in a lawsuit brought against the Federal Republic of Germany ("Germany") in the
United States District Court for the Northern District of Illinois to enforce German bearer bonds.
See Bleier v. Bundesrepublik Deutschland, No. 08 C 06254,2011 WL 4626164 (N'D. Ill. Sept'
30, 201l), aff'd sub nom Korber v. Bundesrepublik Deutschland, T39 F.3d 1009 (7th Cir. 2014).
In that case, the group of bondholders challenged the legality ofthe validation processes outlined
I The facts recited in this Memorandum Opinion and Order are taken from plaintiff s complaint ("Compl.
at_"), defendant's motion to dismiss ("Def. Mot. at plaintiff s opposition thereto ("P1. Opp. at
_"), and defendant's reply ("Def. Rep. at _").
Except -"),
where otherwise noted, the facts recited here are
undisouted.
in the Validation Treaty and sought the payrnent oftheir bonds. Id.at*1,4. The district court
dismissed their claim lor failure to state a claim and as time-barred under the applicable statutes
of limitations. See generally Order, Bleier v. Bundesrepublik Deutschland, No. 08 C 06254,2011
WL 4626164 G',I.D. nl. Sept.30,2012); Korber,739F.3dat 1011. Following an appeal ofthe
district court's dismissal, the United States Cou( ofAppeals for the Seventh Circuit affirmed the
district court's decision to dismiss the case. Korber.739 F.3d at 1012-13.
2, HistoricalBackground
During the period 1924 to 1933, the German Third Reich sold bearer bonds in United
States' markets in order to raise capital and rebuild its economy after World War I. Del Mot. at
l-2; World Holdings v. Fed. Rep. of Germany,70l F.3d 641,646 (11th Cir. 2012); Fulwood v.
Fed. Rep. of Germany,734F.3d12,75 (|st Cir.20l3). A large quantity ofthese bonds
remained outstanding after World WarII. Pl. Opp. at.2;Def . Mot. at2;Abrey v. Reusch,153F.
Supp. 337, 339 (S.D.N.Y. 1957).
In the 1950s, the Federal Republic of Germany took several steps to facilitate the
payment of claims on these bonds. Def. Mot. at 3. Specifically, in 1952, Germany enacted the
German Validation Law for Foreign Bonds ("Validation Law"), pursuant to which Germany
assumed liability on the bonds if a bondholder could demonstrate that the bonds had not been
located within Germany on January 1, 1945. Def. Mot. at 3; Mortimer Off Shore Servs., Ltd. v.
Germany,615 F.3d 97,102(2d Cir.2010). Subsequently, in 1953, Germany entered into the
London Agreement on German Extemal Debts ("London Debt Agreement") with several
countries including the United States. Feb.27,1953, 4 U.S.T. 443; Pl. Opp. at 2. The London
Debt Agreement served as a settlement offer to the bondholders covered by that agreement. 4
U.S.T. 443,447; Pl. Opp. at2. To that end, the London Debt Agreement required that
bondholders who accepted the settlement terms under the agreement validate their bonds,
pursuant to the Validation Law, before receiving payment from Germany. Pl. Opp. at 2-3.
Germany completed settlement payments pursuant to the London Debt Agreement on October 3,
20 I 0. Pl. Opp. at 2; World Holdings, 70 I F.3d at 653-54.
In 1953, the United States entered into two bilateral treaties related to the German bonds.
Def. Mot. at 3-4; Pl. Opp. at 3. First, Germany and the United States entered into the Agreement
Between the Government of the United States of America and the Govemment of the Federal
Republic of Germany Regarding the Validation of Dollar Bonds of German Issue ("Agreement
on Validation Procedures") on February 27,1953. 4 U.S.T. 797. The Agreement on Validation
Procedures required that all bondholders validate their bonds and that bondholders register their
bonds for validation by 1958. 4 U.S.T. 797,839,855-56 ("Bonds which have not been
registered for validation before expiration of the applicable registration period . . . become
invalid upon such expiration."); Def. Mot. at3; World Holdings,701 F.3d at 647; Fulwood,734
F.3d at76. The agreement also established the procedures for American citizens to validate their
German bonds, including validating the bonds before the Board for the Validation of German
Bonds in the United States. 4 U.S.T. 797,839,855-56; Def. Mot. at 3-4; World Holdings,T0l
F.3d at 647 .
In addition, Germany and the United States entered into an Agreement Regarding Certain
Matters Arising from the Validation of German Dollar Bonds ("Validation Treaty") on April 1,
1953. 4 U.S.T. 885. The Validation Treaty provided that German bonds could be enforced in
United States courts only if the bonds had been "validated either by the Board for the Validation
of German Bonds in the United States established by the Agreement on Validation Procedures,
or by the authorities competent for that purpose" in Germany. 4 U.S.T 885, 889; Def. Mot. at 4;
Pl. Opp. at 3. The United States later dissolved the Board for the Validation of German Bonds in
1960. Def. Mot. at 4; Pl. Opp. at 3. The validation requirements in the Validation Treaty remain
applicable to all owners of German bearer bonds. Compl. at 3; Def. Mot. at3; see also Fulwood,
734 F.3d at 80.
B, ProceduralBackground
Plaintiff filed the complaint in this matter on March 6, 2015. See general/y Compl. On
April29,2015, the government filed a motion to dismiss the complaint for lack of subject-matter
jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to RCFC
l2(b)(l) and RCFC l2(bx6). Dei Mot; RCFC l2(b)(1); RCFC 12(bX6). On July 6,2015,
plaintiff filed a response to the government's motion to dismiss. See generallyPL Opp. On July
17,2015, the government filed a reply to the plaintiif s response to the motion to dismiss. See
generally Def. Rep. The matter having been fully briefed, the Court addresses the pending
motion to dismiss.
III. LEGAL STANDARDS
A. Pro Se Litigants
Plaintiff is an attomey and he is proceeding in this matter pro se. Parties proceeding pro
se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner, 404
U.S. 519, 520-21 (19'12) (holding that pro se complaints are held to "less stringent standards than
formal pleadings drafted by lawyers"). In this regard, "[e]ven a skilled lawyer who represents
himself is at a disadvantage in contested litigation" because "[h]e is deprived ofthejudgment of
an independent third party in framing the theory ofthe case . . . and in making sure that reason,
rather than emotion, dictates the proper tactical response to unforeseen developments in the
courtroom." Kay v. Ehrler,499 U.S. 432,43'/ (1991). And so, plaintiff is afforded the same
leeway customarily granted to all pro se plaintiffs.
In addition, while "a court should be receptive topro se plaintiffs and assist them, justice
is ill-served when ajurist crosses the line from finder offact to advocate." Demes v. United
States, 52 Fed. Cl. 365, 369 (2002). Given this, "the leniency afforded to a pro se litigant with
respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States,75 Fed. Cl. 249,253 (2007). The pro se plaintiff still must establish
the Court's jurisdiction by a preponderance of the evidence. Riles v. United States,93 Fed. Cl.
163, 165 (2010). And so, while the Court may excuse ambiguities in the plaintiff s complaint,
the Court does not excuse the complaint's flailures. See Henke v. United States, 60 F .3d 795,799
(Fed. Cir. 1995).
B. RCFC l2(bx1)
When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction
pursuant to RCFC l2(bX1), this Court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor. See
Erickson v, Pardus,551 U.S. 89,94 (2007); RCFC 12(bX1). Plaintiff, nonetheless, bears the
burden ofestablishing subject-matter jurisdiction, and must do so by a preponderance ofthe
evidence. Reynolds v. Army & Air Force Exch. 9erv.,846F.2d746,748 (Fed. Cir. 1988). And
so, should the Court determine that "it lacks jurisdiction over the subject matter, it must dismiss
the claim." Matthews v. United States,72Fed. C|.274,278 (2006).
c. RcFc r2(bx6)
When deciding a motion to dismiss based upon failure to state a claim pursuant to RCFC
12(b)(6), this Court must assume that all undisputed lacts alleged in the complaint are true and
must draw all reasonable inferences in the non-movant's favor. See Erickson,55l U.S. at 94;
RCFC 12(bX6). To survive a motion to dismiss under RCFC 12(bX6), a complaint must contain
facts sufficient to "state a claim to reliefthat is plausible on its face." Bell Atl. Corp. v.
Twombly,550U.S.544,570(2007);seealsoAshcroftv. lqbal,556U.S.662,678(2009). When
the complaint fails to "state a claim to reliefthat is plausible on its face," the Court must dismiss
the complaint. Iqbal,556 U.S. at 678 (citation omitted). On the other hand, "[w]hen there are
well-pleaded factual allegations, a court should assume their veracity" and determine whether it
is plausible, based on these facts, to find against the defendant. Id. at679.
D. Fifth Amendment Takings Claims
The United States Court ofFederal Claims has exclusive jurisdiction over Fifth
Amendment takings claims in excess of $10,000. 28 U.S.C. $ la91(a); see also Acceptance Ins.
Cos. Inc.v. UnitedStates,503 F.3d 1328,1336 (Fed. Cir.2007). The Takings Clause of the
Fifth Amendment guarantees just compensation whenever private property is "taken" for public
use. U.S. Const. amend. V. The purpose of the Fifth Amendment is to prevent the
"[g]ovemment from forcing some people alone to bear public burdens which, in all faimess and
justice, should be bome by the public as a whole." Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 123 (1978) (q\oting Armstrong v. United Stales, 364 U.S. 40, a9 (1960));
see also Florida Rock Indus., Inc. v. United Stares, 18 F.3d 1560, l57l (Fed. Cir. 1994).
In order to have a cause ofaction for a Fifth Amendment takings, the plaintiff must point
to a protectable property interest that is asserted to be the subject ofthe takings. See Phillips v.
Wash. Legal Found.,524 U.S. 156, 164 (1998) ("Because the Constitution protects rather than
creates property interests, the existence ofa property interest is determined by reference to
'existing rules or understandings that stem from an independent source such as state law."')
(citation omitted). In addition, courts have traditionally divided their analysis of Fifth
Amendment takings into two categories-regulatory takings and physical takings.
In this regard, the United States Court ofAppeals for the Federal Circuit has recognized
that "Ig]ovemment action that does not directly appropriate or invade, physically destroy, or oust
an owner from property but is overly burdensome may be a regulatory taking." A & D Auto
Sales, Inc. v. United States,748 F.3d 1142, 1151 (Fed. Cir. 2014). ln assessing whether a
regulatory takings has occurred, courts generally employ the balancing test seI forth in Penn
Central, weighing the character ofthe govemment action, the economic impact ofthat action and
the reasonableness ofthe property owner's investment-backed expectations. Penn Central
Transp. Co.,43 8 U. S. at 124-25. "The general rule at least is that while property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Penn.
Coal Co. v. Mahon,260 U.S. 393,415 (1922); see also Lingle v. Chevron U.S.A. [nc.,544 U.S.
528,537 (2005) (holding a regulation is a takings if it is "so onerous that its effect is tantamount
to a direct appropriation or ouster")2.
In contrast, physical or per se takings occur when the govemment's action amounts to a
physical occupation or invasion of the property, including the functional equivalent of"a
practical ouster of [the property owner's] possession." Transportation Co. v. Chicago,99U.S.
635,642 (1878); see also Lorettov. Teleprompler Manhattan CATV Corp.,458 U.S. 419,428
( 1982). When an owner has suffered a physical invasion of his property, the United States
Supreme Court has noted that "no matter how minute the intrusion, and no matter how weighty
the public purpose behind it, we have required compensation." Lucas,505 U.S. at 1015. The
distinction between a physical invasion and a govemmental activity that merely impairs the use
of that property turns on whether the intrusion is "so immediate and direct as to subtract from the
owner's full enjoyment of the property and to limit his exploitation of it." United States v.
Caus by, 328 U.S. 256, 265 (1946).
2Regulations that are found to be too restrictive, so that the regulations deprive property of its entire
economically beneficial or productive use, are viewed as categorical takings. Lucas v. S.C. Coastal
Council,505 U.S. 1003, l0l5(1992); see also A & D Auto Sales, T48 F.3d at I l5l-52. Categorical
takings do not require the application ofthe Penn Central balancing test. Id.at1152. Th€ United States
Supreme Court has mainly applied the categorical test to regulatory takings of real property . See Lucas,
505 U.S. at 1015-19. lnA & DAuto Sales, the United States Court of Appeals for the Federal Circuit
noted that it has attimes applied the categorical test to tangible personal property as well. 748F.3dat
1151-52 (citing Rose Acre Farms, Inc. v. United States,373 F.3d 1177, | 196-98 (Fed. Cir. 2004)); see
also Maritrans, Inc. v. United States,342 F .3d 1344, 1353-55 (Fed. Cir. 2003).
E. Statute Of Limitations And Standing Doctrine
Pursuant to title 28, United States Code, section 2501, "[e]very claim of which the United
States Court ofFederal Claims has jurisdiction shall be barred unless the petition thereon is filed
within six years after such claim first accrues." 28 U.S.C. $ 2501. This six-year limitations
period is not susceptible to equitable tolling. John R. Sand & Gravel Co. v. United Stales,552
U.S. 130, 136 (2008). In addition, "a claim accrues 'when all the events have occurred which fix
the liability of the Government and entitle the claimant to institute an action."' Goodrich v.
United Srates, 434 F .3d 1329, 1333 (Fed. Cir. 2006) (citing Hopland Band of Pomo Indians v.
United States,855 F.2d 1573,1576-77 (Fed. Cir. 1988)); see also Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corp. ofCal., |nc.,522 U.S. 192,201 (1997) (("a cause
ofaction does not become complete and present for limitations purposes until the plaintiffcan
file suit and obtain relief.") (citations omitted)).
Within the context of a Fifth Amendment takings claim, a plaintiff must bring a takings
claim within six years of the date on which the takings occurred. 28 U.S.C. $2501; Hair v.
United Stures,350 F.3d 1253,1260 (Fed. Cir. 2003); Alliance of Descendants ofTex. Land
Gronts v. United States,37 F.Jd, 1478, 1481 (Fed. Cir. 1994) (holding that a Fifth Amendment
takings claim accrues when the takings occurs) (citing Sreel Improvement & Forge Co. v. United
States,174Ct.Cl.24,29 (1966)). When a treaty is alleged to effectuate a takings, the plaintiff s
takings claim accrues when the United States enters into the treaty. See Alliance,3T F.3d at
1482; cf. Goodrich, 434 F .3d at 1336 (holding that the plaintiff s takings claim accrued when the
United States Forest Service adopted a Record of Decision, "regardless ofwhen the
consequences of the decisions contained therein are felt."). In addition, a plaintiff must show
that he or she owned the property alleged to have been taken at the time that the alleged takings
occurred, to have standing to bring a takings claim. Cristina Inv. Corp. v. United States,40Fed.
Cl. 571, 580 (1998) (citing United States v. Dow,357 U.S. 17, 20-21 (1958)).
IV. DISCUSSION
A. Plaintiffs Takings Claim Is Untimely
As an initial matter, the Court does not possess jurisdiction to consider plainti{Ps takings
claim because the claim is time-barred. It is well established that "[e]very claim of which the
United States Cou( ofFederal Claims has jurisdiction shall be barred unless the petition thereon
is filed within six years after such claim first accrues." 28 U.S.C. $ 2501. Within the context of
a Fifth Amendment takings claim, a plaintiff must bring a takings claim within six years of the
date on which the takings occurred. 28 U.S.C. $2501; Hair,350 F.3d at 1260; Alliance,3T F.3d
at l48l (holding a Fifth Amendment takings claim accrues when the takings occrus) (citing Steel
Improvement,IT4 Ct. Cl. at 29). In addition, when a treaty is alleged to effectuate a takings-as
the plaintiff alleges in this case-the takings claim accrues when the United States enters into the
Ireaty. See Alliance,3T F.3d at 1482; cf. Goodrich,434 F.3d at 1336 (holding that the plaintifPs
takings claim accrued when the United States Forest Service adopted a Record ofDecision,
"regardless ofwhen the consequences ofthe decisions contained therein are felt."). And so, in
this case, plaintiff must show that he filed his takings claim within six years of the date on which
the United States entered into the treaty that effectuated the alleged takings. Id.
The undisputed facts in this case show that plaintiffs takings claim accrued many
decades before he commenced this action. Plaintiff states in his complaint that the alleged
takings in this matter occurred when the United States entered into the Validation Treaty with
Germany. Compl. at I- 4,7;Pl. Opp. at 2. It is without dispute that the United States entered
into this treaty on April l, 1953*more than sixty years before plaintiff commenced this action.
Compl. at, e.g.,I- 3; Pl. Opp. at 3. As established above, when a treaty is alleged to effectuate
the takings, the takings claim accrues when the govemment enters into that treaty . Alliance, 37
F.3d at 1482; see also Goodrich,434 F.3d at 1336. Given this, plaintiffs takings claim accrued
when the United States entered into the Validation Treaty, and, as a result, he commenced this
takings action well beyond the six year limitations period provided for in section 25 01. See 28
U.S.C. $ 2501 (plaintiff must bring claims before the United States Court of Federal Claims
"within six years after such claim first accrues.") And so, plaintiff s takings claim is time-baned
by the statute of limitations set forth in section 2501 . 28 U.S.C. $ 2501 .
In his opposition to the govemment's motion to dismiss, plaintiff argues that his takings
claim is timely because this claim accrued on October 3, 2010, when Germany completed certain
payments to bondholders pursuant to the London Debt Agreement. Compl. atl,7-8; Pl. Opp. at
2, 23-24. Plaintiff, thus, argues that he was "prevented from obtaining relief until after October
3,2010." Compl. at 12; Pl. Opp. at 23-24 (emphasis in original)r. But. plaintiff s argument is
belied by the undisputed facts
It is well established that "a claim accrues 'when all the events have occurred which fix
the liability of the Government and entitle the claimant to institute an action."' Goodrich v.
United States,434 F.3d 1329, 1333 (Fed. Cir. 2006) (citing Hopland Band of Pomo Indians v.
United States,855 F.2d 15'73,1576-77 (Fed. Cir. 1988)); see also Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., [nc.,522 U.S. 192,201(1997) (("a cause
of action does not become complete and present for limitations purposes until the plaintiffcan
file suit and obtain relief.") (citations omitted)). Moreover, as discussed above, a takings claim
based upon a treaty accrues when the United States enters into that treaty. Alliance,3T F.3d at
1482; see also Goodrich,434 F.3d at 1336. And so, here, plaintiff s takings claim must have
accrued when all ofthe events related to the United States Govemment's decision to agree to the
Validation Treaty and, specifically, the Treaty's validation requirement had occurred. 1d.
It is without dispute that the govemment's decision to enter into the Validation Treaty in
1953 is the govemment action that imposed the obligation on plaintiff to validate his Bonds
before enforcing the Bonds in United States courts. Compl. at 3;see also 4 U.S.T.885,889.
Plaintiffdoes not allege-and the Court is not aware of-any subsequent action on the part ofthe
United States regarding this requirement to validate the Bondsa. Pl. Opp. at21-24. And so, the
undisputed facts in this matter make clear that all ofthe events necessary to fix the liability ofthe
govemment for allegedly taking plaintiff s right to enforce unvalidated German bearer bonds in
r Plaintiff inconectly argues the Court must accept "as true for purposes ofthe motion to dismiss" his
disputed factual assertion that the takings claim in this matter accrued on October 3, 2010. See Pl. Opp. at
23. It is well established that this Court is not required to accept disputed facts as true within the context
of deciding a motion to dismiss. Bloomington Hosp. v. United States,29 Fed. Cl. 286,294 (1993) (citing
Papasan v. Allain,4'18 U.5.265,283 (1986) ("ln ruling on a motion to dismiss for failure to state a claim,
fthe Court] must accept as true the complaint's undisputed factual allegations, and should construe them
in a light most favorable to the plaintiff")); see also Erickon v. Pmdus,551 U.S. 89, 94 (2007) (holding
that when deciding a motion to dismiss based upon a lack of subject-matter jurisdiction pursuant to
RCFC 12(bXl), this Court must assume that all undisputed facts alleged in the complaint are true and
must draw all reasonable inferences in the non-movant's favor.).
a
Although it is without dispute that the United States later dissolved the Board for the Validation of
German Bonds after the United States entered into the Validation Treaty, plaintiffdoes not allege that this
action affected the validation requirement imposed by the Validation Treaty. Compl. at 3; Pl. Opp. at 3.
l0
United States courts occurred at the time that the United States entered into the Validation
TteaIy. Goodrich, 434 F.3d aI 1333.
For the same reason, plaintiffs argument that his takings claim accrued in 2010-when he
first had the ability to bring suit to enforce the Bonds against Germany-is similarly without
merit. Pl. Opp. aI22-23. Plaintiff argues that his takings claim is timely because he could not
have filed suit to enforce the Bonds until Germany completed settlement payments under the
London Debt Agreement. Compl. at l2; Pl. Opp. at 22-24. But, the date on which plaintiff
could have filed a claim to enforce the Bonds against Germany is simply not relevant to
determining when his takings claim against the United States accrued. Indeed, as discussed
above, all of the actions on the part of the United States Govemment to require bondholders to
validate their bonds before bringing suit in United States courts occurred in 1953*when the
United States entered into the Validation Treaty. Germany's actions with respect to the
settlement payments made pursuant to the London Debt Agreement simply have no bearing upon
plaintiff s claim against the United States. And so, the timing of Germany's settlement payments
under the London Debt Agreement cannot properly serve as the basis for establishing when
plaintifls takings claim accrued in this matler. Alliance, 37 F .3d at 1482.
In sum, the undisputed facts in this case make clear that plaintiff s takings claim accrued
in 1953 and that he filed this claim well after the six-year statute of limitations period for
bringing such a claim had expired. The six-year statute of limitations period set forth in section
2501 is ajurisdictional requirement for bringing suit in this Court. See Martinez v, United
States,333 F.3d 1295, 1316 (Fed. Cir.2003). And so, the Court must dismiss this claim for lack
of subject-matter jurisdictions. RCFC l2(b)(1); 28 U.S.C. $ 2501.
B. Plaintiff Lacks Standing To Bring His Takings Claim
Plaintiff s takings claim is also jurisdictionally precluded because he lacks standing to
bring the claim. "It is well established that 'only persons with a valid property interest at the
5
Plaintiffalso incorrectly argues international law should govern in this matter and that Germany's
conduct tolled the statute of limitations in this case. Compl. at 4, 35-37; Pl.Opp.at25-27. But, the
matter before this Court is a takings claim brought against the United States, not a case to enforce
sovereign debt under international law. See generally Compl. In addition, it is well established that the
six-year limitations period set forth in section 2501 is not susceptible to equitable tolling. John R Sand &
Gravel Co. v. United States,552 U.S. 130, 136 (2008).
ll
time ofthe taking are entitled to compensation."' CRV Enterprises, Inc. v. United States,626
F.3d 1241, 1249 (Fed. Cir. 2010) (quoting lryau v. United States,271F.3d, 1090, 1096 (Fed. Cir.
2001)). As discussed above, the takings alleged in this case occuned when the United States
entered into the Validation Treaty with Germany, in 1953. Compl. at l- 4,7; CRV Enterprises,
626F.3da|1250;Alliance,37F.3dat1481. Although plaintiff does not state when he acquired
the Bonds, plaintiff acknowledges that he did not own the Bonds in 1953. Pl. Opp. at 21. Given
this, it is without dispute that plaintiffdid not hold a valid property interest in the Bonds in 1953.
And so, plaintiffdoes not have standing to bring his takings claim and the Court must dismiss
this claim. CRV Enterprises, 626 F.3d aL 1249-50.
C, Plaintiff Fails To State A Plausible Fifth Amendment Takings Claim
Plaintiff also fails to state a plausible takings claim in the complaint. RCFC l2(b)(6);
see also Twombl),, 550 U.S. at 570 (plaintifffails to "state a claim to reliefthat is plausible on its
face."). It is well established that identifying a cognizable property interest is the first step in a
takings analysis. SeeAir Pegasus of D.C., Inc. v. United States,424F.3d 1206, 1213 (Fed. Cir.
2005) ("we do not reach this second step without first identifuing a cognizable property
interest."). To allege a plausible takings claim here, plaintiff must show that he had a cognizable
property intelest in the Bonds at the time of the alleged takings. Chancellor Manor v. United
States,33l F.3d 891,901-02 (Fed. Cir.2003) (citinglVyatt,27lF.3d at 1096) ("It is axiomatic
that only persons with a valid property interest at the time oftaking are entitled to
compensation."); see also United States v. Dow,357 U.S. 17, 20-21 (1958). As discussed above,
plaintiff acknowledges that the he did not own the Bonds at the time that the alleged takings
occurred-when the United States entered into the Validation Treaty in 1953. Compl. at 1-3.
Given this, plaintiff simply could not have had a cognizable property interest in the Bonds at the
time of the alleged takingso. And so, the Court must also dismiss plaintiff s takings claim for
failure to state a claim. RCFC 12(bX6).
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Plaintiffalso fails to establish that he owned the Bonds on October 3, 2010. See generaliy Compl.; Pl.
Opp. And so, even if the Court accepts the premise that the alleged takings in this matter could have
occurred in 2010, plaintiff as not shown that he had a cognizable property interest in the Bonds at that
time. Id.t2
D. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Seventh
Amendment Claim
Plaintiff s Seventh Amendment claim is also jurisdictionally barred. The Seventh
Amendment codifies the right to trial byjury in certain civil cases in federal courts. U.S. Const.
amend. VII. In the complaint, plaintiff alleges that, by entering into the Validation Treaty, "the
U.S. has deprived [him] of the right to trial by jury to fix [his] damages," in violation of the
Seventh Amendment. Compl. at8;see a/soCompl.at3, 13
This Court does not possess jurisdiction to adjudicate claims brought pursuant to the
Seventh Amendment. Jaffer v. United States, No. 95-5127, 1995 WL 592017, at *2 (Fed. Cir.
Oct. 6, 1995) (holding that a violation ofthe Seventh Amendment does not "explicitly or
implicitly obligate[ ] the federal government to pay damages," and the Seventh Amendment
cannot "support a claim for relief in the Court ofFederal Claims."); see also Harris v. United
Srares, 118 Fed. Cl. 180, 190 (2014). And so, to the extent that plaintiff alleges a Seventh
Amendment claim, the Court must also dismiss this claim for lack of subject-matter jurisdiction.
RCFC 12(bXl).7
V. CONCLUSION
In sum, the undisputed facts in this matter show that plaintiffs takings and Seventh
Amendment claims are jurisdictionally barred and warrant dismissal. Plaintiffs takings claim is
time-barred because he failed to bring this claim within six years ofthe date the takings claim
accrued-when the United States entered into the Validation Treaty with Germany in 1953. The
undisputed facts also show plaintiff lacks standing to bring his takings claim, because he did not
have a valid property interest in the Bonds at the time of the alleged takings. In addition, the
Court must also dismiss plaintiff s Seventh Amendment claim, because the Court does not
possess jurisdiction to adjudicate such claims.
?
Because the Court has determined that it does not possess jurisdiction to consider plaintiffs takings
claim, the Court does not reach the issues raised in defendant's motion to dismiss regarding whether the
Validation Treaty could interfere with plaintiffs investment-backed expectations, or whether the Court's
consideration of plaintiffs takings claim presents a political question. Def. Mot. at8-12;Def. Rep. at 6-
9.
IJ
The Court must also dismiss plaintiffs takings claim for failure to strate a claim upon
which relief may be granted, because the factual allegations in the complaint make clear that
plaintiff held no cogrdzable properg interest in the Bonds at the time of the alleged takings.
And so, for the foregoing reasons, the Court GRANTS defendant's motion to dismiss
and dismisses the complaint.
The Clerk is directed to ener judgrnent accordingly.
Each party to bear its own costs.
ITIS SOORDERED.
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