AVIATION & GENERAL INSURANCE COMPANY, LTD., NEW YORK MARINE AND GENERAL INSURANCE COMPANY, CERTAIN UNDERWRITERS AT LLOYDS LONDON, AUREUS ASSET MANAGERS, LTD., RIVERSTONE INSURANCE (UK), LTD., Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in Nos.
1:14-cv-00687-TCW, 1:14-cv-00703-TCW, Judge Thomas C.
Robert Perles, Perles Law Firm, PC, Washington, DC, argued
for plaintiffs-appellants. Also represented by Edward Brian
MacAllister, Joshua Perles.
Misha Preheim, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee. Also represented by Reginald T.
Blades, Jr., Robert E. Kirschman, Jr., Benjamin C. Mizer.
Moore, Reyna, and Stoll, Circuit Judges.
are insurance and asset management entities that paid
property damage and personal injury claims arising from two
terrorist events sponsored by Libya in the 1980s. Following
the suspension of Libya's sovereign immunity pursuant to
the passage of the State Sponsors of Terrorism Exception to
the Foreign Sovereign Immunities Act in 1996 and the National
Defense Authorization Act in 2008, Appellants filed lawsuits
against Libya in federal court, asserting their subrogation
rights for claims paid as a result of the attacks. Those
lawsuits were ultimately terminated following Congress's
passage of the Libyan Claims Resolution Act in 2008, which
restored Libya's sovereign immunity and implemented a
Claims Settlement Agreement between the United States and
Libya. Subsequently, President George W. Bush signed
Executive Order No. 13, 477, which provided that any pending
suit in any U.S. court filed by United States or foreign
nationals relating to Libyan-sponsored terrorism shall be
takings case, we must decide whether the Government's
termination of Appellants' lawsuits pursuant to the
Claims Settlement Agreement between the United States and
Libya and its subsequent legislation and executive order
constituted a compensable taking under the Fifth Amendment.
For the reasons below, we hold that it does not and affirm
the Court of Federal Claims.
November 23, 1985, EgyptAir Flight 648 was scheduled to
travel from Athens, Greece to Cairo, Egypt before it was
hijacked by terrorists of the Abu Nidal Organization
("ANO"). The hijacking and its aftermath resulted
in the killing of passengers and the destruction of the
aircraft hull. The United States Department of State
determined that ANO received considerable support from the
Libyan government, which provided safe haven, training,
logistical assistance, and monetary support.
related event, on December 21, 1988, an agent of the Libyan
Intelligence Service detonated explosives concealed in the
luggage compartment of Pan Am Flight 103 as it crossed
Scotland. The bombing killed all 243 passengers, including
Americans, 16 crewmembers, and 11 bystanders, and destroyed
the aircraft. The terrorist was acting as an agent of the
Libyan government, which materially supported the attack by
providing intelligence agents and equipping the terrorist
with explosives and the equipment needed to detonate them.
time of the attacks, Libya enjoyed sovereign immunity
pursuant to the Foreign Sovereign Immunities Act of 1976
("FSIA"). See 28 U.S.C. § 1604. As a
result of Libya's immunity from suit, victims were unable
to pursue claims directly against Libya in United States
courts. Appellants paid approximately $42 million in
insurance claims resulting from the destruction of EgyptAir
Flight 648 and approximately $55 million under their
respective insurance contracts to the estates and families of
Americans and foreign nationals killed in the Pan Am Flight
1996, however, Congress enacted the State Sponsors of
Terrorism Exception to FSIA ("Terrorism
Exception"), 28 U.S.C. § 1605(a)(7) (1996),
repealed by Pub. L. 110-181, Div. A, §
1083(b)(1)(A)(iii), Jan. 28, 2008, 122 Stat. 341. The
Terrorism Exception stripped sovereign immunity for
"money damages . . . sought against a foreign state for
personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or resources . .
. for such an act if such act . . . is engaged in by an
official, employee, or agent of such foreign state . . .
." Id. Because the Department of State had
previously designated Libya a state sponsor of terrorism as
of December 29, 1979, Libya became susceptible to suit for
wrongful death and personal injuries as a result of its
sponsored terrorist activities, including the EgyptAir Flight
648 and Pan Am Flight 103 attacks.
passage of the Terrorism Exception, Appellants filed suits in
the United States District Court for the District of
Columbia, asserting their insurance subrogation rights and
seeking, inter alia, damages for the personal injury and
wrongful death claims they paid under their contracts and
insurance policies as a result of the EgyptAir Flight 648 and
Pan Am Flight 103 attacks. See Hartford Fire Ins. Co. v.
Socialist People's Libyan Arab Jamahiriya, No.
1:98-CV-03096 (D.D.C. filed Dec. 18, 1998) ("Pan
Am"); Certain Underwriters at Lloyds London v.
Socialist People's Libyan Arab Jamahiriya, No.
1:06-cv-00731 (D.D.C. filed Apr. 21, 2006)
("EgyptAir"). On January 28, 2008,
President Bush signed the National Defense Authorization Act
of 2008, Pub. L. No. 110-181, § 1083, which replaced
Section 28 U.S.C. § 1605(a)(7) (the Terrorism Exception)
with 28 U.S.C. § 1605A. This Section additionally
allowed claims for property damage resulting from terrorism
to be brought against a state sponsor of terrorism. As a
result, Appellants amended their complaints, additionally
asserting property damage claims against Libya pursuant to
Appellants' claims were pending, however, President Bush
negotiated a settlement with Libya whereby the United States
agreed to terminate all pend- ing lawsuits against Libya. In
exchange, Libya paid the U.S. Government $1.5 billion to
ensure payment to victims with claims against Libya. Pursuant
to the settlement, Congress passed the Libyan Claims
Resolution Act ("LCRA"). See Pub. L. No.
110-301, 122 Stat. 2999 (2008). Sections 5(a)(1)(A) and (B)
of the LCRA provide that Libya "shall not be subject to
the exceptions to immunity from jurisdiction" under the
Terrorism Exception under FSIA and that any "private
right of action relating to acts by a state sponsor of
terrorism arising under Federal, State, or foreign law shall
not apply with respect to claims against Libya . . . in any
action in a Federal or State court."
President Bush signed Executive Order No. 13, 477, providing
further that "[a]ny pending suit in any court, domestic
or foreign, by United States nationals . . . coming within
the terms of Article I [of the Libya Claims Settlement
Agreement] shall be terminated" and also that
"[a]ny pending suit in any court in the United States by
foreign nationals . . . coming within the terms of Article I
[of the Libya Claims Settlement Agreement] shall be
terminated." Executive Order No. 13, 477, 73 Fed. Reg.
65, 965 (Oct. 31, 2008). Pursuant to the Executive Order, the
State Department referred certain U.S. nationals' claims
against Libya to the Foreign Claims Settlement Commission
("Commission") that was funded by the $1.5 billion
payment from Libya. The Executive Order did not direct the
State Department to refer claims by foreign companies to the
Commission; rather, it provided that with respect to suits by
foreign nationals "[n]either the dismissal of the
lawsuit, nor anything in this order, shall affect the ability
of any foreign national to pursue other available remedies
for claims . . . in foreign courts or through the efforts of
foreign governments." Id.
the LCRA and the President's Executive Order, the
Government moved to dismiss Appellants' claims for lack
of subject matter jurisdiction. The district court dismissed
Appellants' claims, holding that "[b]ecause the
LCRA, Settlement Agreement, and Executive Order specifically
and comprehensively withdraw any exception to sovereign
immunity that may be provided in the FSIA with regard to
[Libya's] pre-2006 support of terrorist acts, this Court
lacks subject matter jurisdiction over the Libyan
Defendants." Certain Underwriters at Lloyds London
v. Great Socialist People's Libyan Arab Jamahiri-ya,
677 F.Supp.2d 270, 275 (D.D.C. 2010).
some of the Appellants in this case submitted claims with the
Commission for damages resulting from the Pan Am attack, but
each claim was denied because of the Commission's
"continuous nationality" jurisdictional rule
requiring that claimants be U.S. nationals from the date of
injury to the date of the espousal of their claims by the
United States. Because of this rule, Appellants Certain
Underwriters, Aviation & General, Aureus, and Riverstone
did not submit claims for losses accruing from the EgyptAir
Flight 648 attack because they and their insured are foreign
nationals. Although Appellant New York Marine, a U.S.
national, submitted a claim, the Commission concluded that it
lacked jurisdiction because its insured, EgyptAir, was a
foreign national. The Commission also denied claims alleging
jurisdiction based on the subrogation interest of Pan Am, a
U.S. corporation, because despite Pan Am's nationality,
the claim belonged to a foreign national at the time it
then filed complaints in the Court of Federal Claims,
alleging that the Government took their property without just
compensation in violation of the Fifth Amendment.
Specifically, Appellants alleged that "the United States
took the property of [Appellants] in the form of their
legally cognizable Foreign Sovereign Immunities Act claims
against [Libya]" for its role in the destruction of
EgyptAir Flight 648 and the Pan Am Flight 103 attack. J.A.
983 ¶¶ 1-2. Appellants further alleged that
"[t]he United States' actions in furtherance of
restoring 'normal' relations with Libya directly
resulted in the taking of Plaintiffs' judicially
cognizable claims against Libya" and that "[t]he
United States has deprived [Appellants] of their property,
the lawsuits against Libya, without any remedy in either
federal court or the [Commission]." J.A. 983-984
¶¶ 1-2, 998 ¶ 58.
Government initially moved to dismiss for failure to state a
claim and on the ground that the case involved a
nonjusticiable political question-namely, the President's
authority to settle their claims with Libya. The Court of
Federal Claims denied the Government's motion, reasoning
that Appellants do not question the President's authority
to conduct foreign relations, but rather seek compensation
for their terminated claims and the United States'
decision to exclude them from the settlement proceeds.
See Aviation & Gen. Ins. Co. v. United States,
121 Fed.Cl. 357, 366 (2015) ("Motion to Dismiss
concluding that Appellants' claims did not present a
nonjusticiable political question, the Court of Federal
Claims granted summary judgment in the Government's
favor. See Aviation & Gen. Ins. Co. v. United
States, 127 Fed.Cl. 316 (2016) ("Summary
Judgment Order"). The court determined that, while
Appellants had a property interest in their lawsuits against
Libya, no taking had occurred under the factors set forth in
Penn Central Transportation Co. v. New York City,
438 U.S. 104 (1978). See Summary Judgment Order, 127
Fed.Cl. at 319 (citing Penn Central, 438 U.S. at
124). Specifically, the court found that Appellants
"cannot claim an investment-backed expectation free of
government involvement nor can they characterize the
Government's action as novel or unexpected" because
Presidents have a longstanding practice of settling and
espousing claims against foreign sovereigns. Id. at
319-20. The court also emphasized the speculative nature of
Appellants' economic injury, explaining that "it is
skeptical that Plaintiffs would have been able to collect on
[any] judgment" against Libya. Id. at 320. The
court concluded that, as a result, "the
[Appellants'] economic injury is not one that fairness
and justice require be shifted to the public at large."
appeal. We have jurisdiction pursuant to 28 U.S.C. §
review the Court of Federal Claims' grant of summary
judgment de novo, see Northwest Title Agency, Inc. v.
United States, 855 F.3d 1344, 1347 (Fed. Cir. 2017)
(citing TEG-Paradigm Envtl., 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. Northwest, 855 F.3d at 1347 (citing
Castle v. United States, 301 F.3d 1328, 1336 (Fed.
Cir. 2002)). We also review the Court of Federal Claims'
decision on justiciability de novo. See Glass v. United
States, 258 F.3d 1349, 1355 (Fed. Cir. 2001).
first address the justiciability of Appellants'
claims. In their complaints, Appellants alleged
that "the United States took the property of
[Appellants] in the form of their legally cognizable
. . . claims against the government of Libya"
for its role in the EgyptAir Flight 648 and Pan Am Flight 103
terrorist attacks and that they were "deprived . . . of
their property, the lawsuit[s] against Libya,
without any remedy in either federal court or the Foreign
Claims Settlement Commission." J.A. 970 ¶ 1, 979
¶ 39, 983 ¶ 1, 998 ¶ 58 (emphases added).
During the litigation below and on appeal, however,
Appellants shifted their argument, asserting that they
"do not allege that the sale of their claims to Libya
was a taking, but are challenging [the Government's]
decision to exclude them from the distribution of [the Libya
Claims Settlement Agreement] proceeds." Appellants'
Br. 26. Appellants' arguments are thus twofold: (1) they
had a property right in their lawsuits against Libya, which
the Government took without just compensation, and (2) they
were entitled to proceeds under the Libya Claims Settlement
Government argues that both of these arguments present a
nonjusticiable political question as Appellants "attempt
to second-guess the President's authority to settle
[their] claims . . . ." Appellee's Br. 53.
Specifically, the Government argues that (1) "[t]he
President's authority for the settlement agreement with
Libya . . . is a quintessential example of the exercise of
the President's broad constitutional powers in foreign
affairs" that this court cannot address; and (2)
Appellants "challenge the Executive Branch's
implementation of the settlement with Libya-that is, the
decision not to make provision for them under that
settlement, " which would require judicial inquiry into
the President's enforcement of the settlement agreement
with Libya. Id. at 53, 54. We hold that the question
of whether a Fifth Amendment taking of Appellants'
alleged property right in their lawsuits occurred presents a
justiciable claim, but the question of whether Appellants
were entitled to proceeds from the Libya Claims Settlement
Agreement presents a nonjusticiable political question.
nonjusticiability of a political question is primarily a
function of the separation of powers." Baker v.
Carr, 369 U.S. 186, 210 (1962). Although distinct from
jurisdiction, the political question doctrine bars our review
of issues implicating questions committed to coordinate
political departments. See Roth v. United States,
378 F.3d 1371, 1385 (Fed. Cir. 2004) ("Even if a court
possesses jurisdiction to hear a claim, when that claim
presents a nonjusticiable controversy, the court may
nevertheless be prevented from asserting its
Supreme Court has articulated various formulations of what
constitutes a political question depending on the
circumstances of the case and what may "identify it as
essentially a function of the separation of powers."
Baker, 369 U.S. at 217. As the Court explained in
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
claims in Appellants' complaints regarding the
Government's termination of their lawsuits against Libya
state a justiciable takings claim. These claims do not cause
us to question the terms of the Libya Claims Settlement
Agreement itself, whether the President had authority to
enter the settlement, or whether the President should have
made provision for Appellants in the distribution of its
proceeds. Rather, these claims require us to examine whether,
under the Fifth Amendment, a taking occurred by the
Government's espousal of Appellants' claims and
termination of their lawsuits by reinstating Libya's
sovereign immunity. This is a legal question for
which we have judicially discoverable and manageable
standards for resolution. See id.
hold, however, that to the extent Appellants seek judicial
review of the President's decision to exclude them from
the settlement's proceeds, Appellants raise a
nonjusticiable political question. We have identified similar
questions as nonjusticiable political questions. In Belk
v. United States, 858 F.2d 706, 710 (Fed. Cir. 1988), we
addressed claims brought by the released victims of the
Iranian hostage crisis. The United States had settled their
claims by signing agreements (the Algiers Accords) with Iran.
See id. at 707. The victims sued the Government,
alleging a taking in violation of the Fifth Amendment and
seeking the full amount of damages they would have recovered
against Iran had their claims not been settled. Id.
There, we found the case presented a nonjusticiable question
because the appellants questioned whether the President
should have sought better terms in the settlement agreement.
We held that "[t]he determination whether and upon what
terms to settle the dispute with Iran . . . necessarily was
for the President to make in his foreign relations
role." Id. at 710. We concluded that the
appellants' claims were not appropriate for judicial
resolution because "judicial inquiry into whether the
President could have extracted a more favorable settlement
would seriously interfere with the President's ability to
conduct foreign relations." Id.
that Appellants' claims directed to their exclusion from
the distribution of proceeds arising from the Libya Claims
Settlement Agreement present a similar nonjusticiable
political question. As Appellants concede, see
Appellants' Reply Br. 26, foreign relations and
settlements to resolve foreign conflicts are soundly
committed to the President's discretion. See Oetjen
v. Cent. Leather Co., 246 U.S. 297, 302 (1918)
("The conduct of the foreign relations of our government
is committed by the Constitution to the executive and
legislative-'the political'- departments of the
government . . . ." (citation omitted)). It follows that
the President had complete discretion and authority to
implement the settlement with Libya and to decide to whom the
settlement funds would be distributed. Appellants'
argument that they should have been included in the
distribution of settlement funds questions the
President's policy decision to exclude them. The
President's policy decision regarding the settlement
proceeds is not a determination for judicial resolution. It
is a question '"of a kind clearly for nonjudicial
discretion, ' and there are no 'judicially
discoverable and manageable standards' for reviewing such
a Presidential decision." Belk, 858 F.2d at 710
(quoting Baker, 369 U.S. at 217). "The
Judiciary is particularly ill suited to make such decisions,
as 'courts are fundamentally underequipped to formulate
national policies or develop standards for matters not legal
in nature.'" Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 230 (1986). Thus, we
do not reach Appellants' arguments regarding their
exclusion from the settlement proceeds. We only address their
alleged claims that termination of their lawsuits against
Libya constituted a taking under the Fifth Amendment.
Fifth Amendment states that private property shall not be
taken "for public use, without just compensation."
U.S. Const. amend. V. To state a claim for a taking,
Appellants must establish that they had a cognizable property
interest and 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. 2009). We
assume, without deciding, that Appellants' lawsuits
against Libya constituted a cognizable property interest for
purposes of a takings ...