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
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:14-cv-00704-MCW, Judge Mary Ellen Coster Williams.
Travis Conan, Becker, Glynn, Muffly, Chassin & Hosinski
LLP, New York, NY, argued for plaintiffs-appellants. Also
represented by Richard Niles Chassin.
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.
Prost, Chief Judge, Clevenger and Linn, Circuit Judges.
Clevenger, Circuit Judge.
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
Government 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.
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 Department
of State determined that the Libyan government sponsored
the bombing by providing considerable support to ANO,
including providing a safe haven, training, 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, Congress 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 terrorism. 28 U.S.C. § 1605(a)(7)
(1996). Libya had been designated 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.
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
People's Libyan Arab Jamahiriya, No.
1:02-cv-02026 (D.D.C. Oct. 16, 2002), ECF No. 1
("Pugh"). The complaint asserted
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 subsequently granted
summary judgment in favor of the plaintiffs, 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,
including: 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
Defendants appealed six days after judgment, Notice of
Appeal, Pugh (D.D.C. Aug. 14, 2008), ECF No. 156,
but that same day, the United States entered into a Claims
Settlement Agreement with the Libyan government. 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,"
Certification 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 immunity would be restored. 28 U.S.C. §
1605A note, Pub. L. No. 110-301, 122 Stat. 2999 (2008).
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 suit by U.S. nationals,
"including any suit with a judgment that is still
subject to appeal . . . shall be terminated." 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") 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
implemented, the Settlement Agreement both closed the
doors of U.S. courts to suits against Libya (thus requiring
Appellants' 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).
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 terrorism-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
("Pugh II"). In its motion, the Government
stated that it had "espoused the terrorism-related
claims of U.S. nationals 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
Columbia 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.
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 Settlement 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"). 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, being the beneficiary of Mihai's estate, and the
estates of Mihai's brothers, because they were deceased.
Complaint at 8, ¶ 37.
with the relief granted by the Commis­sion, 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 ...