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Alimanestianu v. United States

United States Court of Appeals, Federal Circuit

May 7, 2018

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

          Appeal from the United States Court of Federal Claims in No. 1:14-cv-00704-MCW, Judge Mary Ellen Coster Williams.

          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, Cir­cuit 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 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.

         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 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.

         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 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 Constantin. Id.

         The 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).

         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 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")[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 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).

         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 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.

         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 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").[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, 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 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 ...


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