  United States Court of Appeals
      for the Federal Circuit
                ______________________

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

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                 2016-2389, 2016-2402
                ______________________

    Appeals from the United States Court of Federal
Claims in Nos. 1:14-cv-00687-TCW, 1:14-cv-00703-TCW,
Judge Thomas C. Wheeler.
                ______________________

              Decided: February 12, 2018
               ______________________

    STEVEN ROBERT PERLES, Perles Law Firm, PC, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by EDWARD BRIAN MACALLISTER, JOSHUA PERLES.

   LOREN MISHA PREHEIM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
2                       AVIATION & GEN. INS.   v. UNITED STATES



Also represented by REGINALD T. BLADES, JR., ROBERT E.
KIRSCHMAN, JR., BENJAMIN C. MIZER.
                ______________________
      Before MOORE, REYNA, and STOLL, Circuit Judges.
     Opinion for the court filed by Circuit Judge STOLL.
    Opinion concurring in part, dissenting in part filed by
                   Circuit Judge REYNA.
STOLL, Circuit Judge.
    Appellants are insurance and asset management enti-
ties 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 Immuni-
ties 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 terminated.
    In this takings case, we must decide whether the Gov-
ernment’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.
AVIATION & GEN. INS.   v. UNITED STATES                   3



                         BACKGROUND

    On 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.
    In a 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.
    At the 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 pur-
sue 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 Ameri-
cans and foreign nationals killed in the Pan Am Flight
103 bombing.
    In 1996, however, Congress enacted the State Spon-
sors of Terrorism Exception to FSIA (“Terrorism Excep-
tion”), 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
4                       AVIATION & GEN. INS.   v. UNITED STATES



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 sabo-
tage, 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.
    Following passage of the Terrorism Exception, Appel-
lants filed suits in the United States District Court for the
District of Columbia, asserting their insurance subroga-
tion rights and seeking, inter alia, damages for the per-
sonal 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 § 1605A.
   While Appellants’ claims were pending, however,
President Bush negotiated a settlement with Libya
whereby the United States agreed to terminate all pend-
AVIATION & GEN. INS.   v. UNITED STATES                   5



ing lawsuits against Libya. In exchange, Libya paid the
U.S. Government $1.5 billion to ensure payment to vic-
tims with claims against Libya. Pursuant to the settle-
ment, 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.”
     Subsequently, President Bush signed Executive Order
No. 13,477, providing further that “[a]ny pending suit in
any court, domestic or foreign, by United States nation-
als . . . 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 Execu-
tive 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 pro-
vided 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 govern-
ments.” Id.
    Citing the LCRA and the President’s Executive Order,
the Government moved to dismiss Appellants’ claims for
6                      AVIATION & GEN. INS.   v. UNITED STATES



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).
    Thereafter, some of the Appellants in this case sub-
mitted 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. na-
tionals 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 jurisdic-
tion 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 ac-
crued.
     Appellants then filed complaints in the Court of Fed-
eral 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 Immun-
ities Act claims against [Libya]” for its role in the destruc-
tion of EgyptAir Flight 648 and the Pan Am Flight 103
AVIATION & GEN. INS.   v. UNITED STATES                   7



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 [Appel-
lants] of their property, the lawsuits against Libya, with-
out any remedy in either federal court or the
[Commission].” J.A. 983–984 ¶¶ 1–2, 998 ¶ 58.
    The 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 Presi-
dent’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 Order”).
    After concluding that Appellants’ claims did not pre-
sent a nonjusticiable political question, the Court of
Federal Claims granted summary judgment in the Gov-
ernment’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 invest-
ment-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’ econom-
8                      AVIATION & GEN. INS.   v. UNITED STATES



ic 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.” Id.
   Appellants appeal. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
                        DISCUSSION
     We 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 mate-
rial 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).
                             I.
    We first address the justiciability of Appellants’
claims. 1 In their complaints, Appellants alleged that “the



    1   Appellants argue that the Government only raised
justiciability in its motion to dismiss and did not raise the
issue on summary judgment, which is the subject of this
appeal. We reject Appellants’ waiver argument. The
Court of Federal Claims addressed justiciability in its
decision denying the Government’s motion to dismiss and,
AVIATION & GEN. INS.   v. UNITED STATES                      9



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). Dur-
ing the litigation below and on appeal, however, Appel-
lants 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 ex-
clude 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 Settle-
ment Agreement.
    The 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 authori-
ty for the settlement agreement with Libya . . . is a quin-
tessential example of the exercise of the President’s broad
constitutional powers in foreign affairs” that this court
cannot address; and (2) Appellants “challenge[] the Exec-
utive 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



accordingly, the Government may raise the issue as an
alternative ground for affirmance.
10                     AVIATION & GEN. INS.   v. UNITED STATES



agreement with Libya. Id. at 53, 54. We hold that the
question of whether a Fifth Amendment taking of Appel-
lants’ 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.
     “The nonjusticiability of a political question is primar-
ily a function of the separation of powers.” Baker v. Carr,
369 U.S. 186, 210 (1962). Although distinct from jurisdic-
tion, 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 jurisdiction.”).
    The Supreme Court has articulated various formula-
tions 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 Baker:
     Prominent on the surface of any case held to in-
     volve a political question is found a textually de-
     monstrable 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 un-
     usual need for unquestioning adherence to a polit-
     ical decision already made; or the potentiality of
AVIATION & GEN. INS.   v. UNITED STATES                  11



      embarrassment from multifarious pronounce-
      ments by various departments on one question.
Id.
    The 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 Set-
tlement Agreement itself, whether the President had
authority to enter the settlement, or whether the Presi-
dent 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 Appel-
lants’ claims and termination of their lawsuits by rein-
stating Libya’s sovereign immunity. This is a legal
question for which we have judicially discoverable and
manageable standards for resolution. See id.
     We 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 nonjus-
ticiable 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 Govern-
ment, alleging a taking in violation of the Fifth Amend-
ment 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 nonjus-
ticiable question because the appellants questioned
whether the President should have sought better terms in
the settlement agreement. We held that “[t]he determi-
nation whether and upon what terms to settle the dispute
with Iran . . . necessarily was for the President to make in
12                     AVIATION & GEN. INS.   v. UNITED STATES



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 settle-
ment would seriously interfere with the President’s
ability to conduct foreign relations.” Id.
     We hold that Appellants’ claims directed to their ex-
clusion 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 settle-
ments 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 Constitu-
tion 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 distribut-
ed. 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
AVIATION & GEN. INS.   v. UNITED STATES                   13



alleged claims that termination of their lawsuits against
Libya constituted a taking under the Fifth Amendment.
                               II.
    The Fifth Amendment states that private property
shall not be taken “for public use, without just compensa-
tion.” U.S. Const. amend. V. To state a claim for a tak-
ing, 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 claim. We hold, however, that
even if Appellants had a property interest in their law-
suits, no taking occurred under the Fifth Amendment.
     The parties agree that, under the circumstances in
this case, whether a taking occurred requires analysis of
the factors set forth in Penn Central. The Penn Central
factors query: (1) “the character of the governmental
action”; (2) “the extent to which the regulation has inter-
fered with distinct investment-backed expectations”; and
(3) “[t]he economic impact of the regulation on the claim-
ant.” Penn Central, 438 U.S. at 124. In Belk, under facts
similar to this case, we provided an explication of these
factors to reflect the unusual circumstances of these types
of cases, including:
    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.
14                     AVIATION & GEN. INS.   v. UNITED STATES



Belk, 858 F.2d at 709. All relevant factors must be
weighed to decide whether a compensable taking has
occurred. Id. In the end, we must determine whether
“‘justice and fairness’ require that economic injuries
caused by public action be compensated by the govern-
ment, rather than remain disproportionately concentrated
on a few persons.” Penn Central, 438 U.S. at 124.
    We start with the first Penn Central factor—the char-
acter of the Government’s action. “In deciding whether a
particular governmental action has effected a taking, this
Court focuses . . . both on the character of the action and
on the nature and extent of the interference with
rights . . . as a whole.” Penn Central, 438 U.S. at 130–31.
As we noted in Belk, “[a] ‘taking’ may more readily be
found when the interference with property can be charac-
terized as a physical invasion by government, than when
interference arises from some public program adjusting
the benefits and burdens of economic life to promote the
common good.” Belk, 858 F.2d at 709 (quoting Penn
Central, 438 U.S. at 124). The character of governmental
action in this case is the Government’s authority to settle
and espouse claims and reinstate Libya’s sovereign im-
munity. 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, reflecting the “current political realities
and relationship[]” between the United States and Libya.
Republic of Iraq v. Beaty, 556 U.S. 848, 864 (2009) (cita-
tion omitted); see also Belk, 858 F.2d at 709 (“Here there
was no physical invasion of property, but only the prohibi-
tion on the assertion by the appellants of their alleged
damage claims . . . .”).
    Turning    to the second Penn Central factor—
interference   with investment-backed expectations—
AVIATION & GEN. INS.   v. UNITED STATES                   15



Appellants argue that they “had reasonable investment
backed expectations, at the time of their investment, in
receiving some compensation for the termination of their
claims . . . .” Appellants’ Br. 34. Appellants assert that in
“looking back” at all historical examples of foreign claims
settlements, claimants either received compensation upon
termination of their lawsuits or otherwise directly bene-
fited from the settlement itself. Id. at 32–33. Appellants
note that, in contrast, they received no such compensation
or benefit. Appellants further assert that the Govern-
ment “failed to provide an alternative remedy to Plaintiffs
specifically to gain a government benefit at their expense,
the ability to pay more to” United States citizens. Id. at
34 (emphasis in original).
     After considering Appellants’ arguments, we agree
with the Court of Federal Claims that the Government’s
action in changing the status of Libya’s sovereign immun-
ity was neither novel nor unexpected and thus could not
have interfered with Appellants’ reasonable investment-
backed expectations. As the court recognized, since at
least 1799, the United States, as a matter of foreign
relations, has settled claims against foreign sovereigns as
such litigious activity is a “source[] of friction” in our
international relations. See Summary Judgment Order,
127 Fed. Cl. at 320 (quoting United States v. Pink, 315
U.S. 203, 225 (1942)). “Foreign sovereign immunity
‘reflects current political realities and relationships,’ and
its availability (or lack thereof) generally is not something
on which parties can rely ‘in shaping their primary con-
duct.’” Beaty, 556 U.S. at 864–65 (citation omitted).
“[T]he United States has repeatedly exercised its sover-
eign authority to settle the claims of its nationals against
foreign countries . . . by executive agreement[s] . . .
[u]nder [which] 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.” Belk, 858
16                     AVIATION & GEN. INS.   v. UNITED STATES



F.2d at 709 (alterations in original) (quoting Dames &
Moore v. Regan, 453 U.S. 654, 679 (1981)). We conclude
that Appellants could not have reasonably expected that
their lawsuits against Libya would be free from govern-
mental interference. Indeed, even Appellants concede
that “there was always a possibility [the Government]
would interfere in [their] litigation against Libya . . . .”
Appellants’ Br. 23.
    Appellants’ argument that they nonetheless held a
reasonable expectation of compensation following the
Government’s termination of their claims based on histor-
ical examples is of no moment. As we have held, the
President’s decision to exclude Appellants from the distri-
bution of proceeds from this particular settlement is not a
justiciable issue that this court can address. Moreover,
we disagree that at the time Appellants invested in their
insurance contracts or at the time of the terrorist at-
tacks—the time at which Appellants’ claims accrued—
Appellants had an expectation of being compensated for
the claims they paid as a result of the attacks. At those
times, Libya had sovereign immunity from suit in the
United States. Thus, the Government’s ex post facto
abrogation of Libya’s sovereign immunity could not have
interfered with any reasonable expectation that Appel-
lants could sue Libya at the time their claims accrued.
Cf. Beaty, 556 U.S. at 865 (emphasis in original) (“Iraq
was immune from suit at the time it is alleged to have
harmed respondents.       The 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.”). Indeed, Appellants’ ability to file a
lawsuit against Libya was only made possible years after
the attacks in 1996, when Congress temporarily lifted
Libya’s sovereign immunity pursuant to the Terrorism
Exception to FSIA.
AVIATION & GEN. INS.   v. UNITED STATES                  17



    Moreover, even if, as Appellants argue, they held a
reasonable investment-backed expectation at the time
Congress lifted Libya’s sovereign immunity, they could
not have reasonably expected that the Government would
not eventually change its position and interfere in their
lawsuits. Surely, if Congress giveth, so too can it taketh
away. After Congress fortuitously lifted Libya’s immunity
from suit, permitting Appellants’ lawsuits in the first
instance, Appellants should have reasonably foreseen that
Congress could also reinstate Libya’s sovereign immunity.
As occurred here, Congress altered the jurisdictional rule
of sovereign immunity with respect to Libya after Libya’s
conduct giving rise to Appellants’ claims. After the Presi-
dent exercised his authority to settle claims against
Libya, Congress again altered the rules of sovereign
immunity reinstating Libya’s sovereign immunity. Given
the evident changing political climate between the United
States and Libya during this time, it was unreasonable
for Appellants to have expected that the waiver of Libya’s
sovereign immunity would have remained static while
their lawsuits were pending. Thus, we agree that the
Government’s action did not constitute a novel interfer-
ence with Appellants’ investment-backed expectations.
     Additionally, we disagree with Appellants’ characteri-
zation that the Government failed to provide an alterna-
tive forum to litigate their claims against Libya. While
the settlement and consequent legislation did not provide
Appellants (as foreign nationals) a forum in the United
States, the President’s Executive Order expressly provid-
ed 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 coming
within the terms of Article I [of the Libya Claims Settle-
ment Agreement] in foreign courts or through the efforts
of foreign governments.” Executive Order No. 13,477, 73
Fed. Reg. 65,965. Thus, Appellants could have sought
18                     AVIATION & GEN. INS.   v. UNITED STATES



relief in foreign courts but chose not to do so. Appellants’
failure to seek relief in a foreign forum should not be a
cost shouldered by the American public.
    Regarding the third Penn Central factor—economic
impact—we agree with the Court of Federal Claims that
the economic impact is speculative and uncertain. As
with any litigation, there was no guarantee that Appel-
lants would have been successful in obtaining a judgment,
let alone successful in enforcing that judgment against
Libya. See, e.g., United States v. Sperry, 493 U.S. 52, 63
(1989) (“Had the President not agreed to the establish-
ment of the [Iran-United States Claims] Tribunal and the
Security Account, [Plaintiff] would have had no assurance
that it could have pursued its action against Iran to
judgment or that a judgment would have been readily
collectible.”).
    Both at oral argument and in a supplemental letter to
the court, Appellants’ counsel touted his experience in
obtaining and enforcing judgments against the assets of
state sponsors of terrorism. This anecdotal evidence,
however, finds no support in the record. Nor is it relevant
to the facts of this case. The extent to which counsel may
have recovered from foreign governments in other cases
does not establish a definitive value of Appellants’ pend-
ing claims at the time of their termination; nor does it
provide assurance that Appellants would have obtained
and enforced a judgment against Libya.
    Finally, though not dispositive, we emphasize the
importance of the public interest and policy considera-
tions served by the Government’s action. The President’s
action in settling claims against Libya was designed to
normalize relations between the United States and Libya,
restore international comity, and promote international
commerce. Moreover, the President’s decision to espouse
these claims implicates important policy decisions sound-
ly committed to the President. To find that a taking
AVIATION & GEN. INS.   v. UNITED STATES                   19



occurred under these circumstances would interfere with
the President’s authority to enter into foreign claims
settlements for the benefit of United States foreign rela-
tions and may interfere with the structure of future
settlements.
    After balancing the pertinent considerations under
Penn Central, we conclude that, on the undisputed facts of
this case, Appellants have not stated a cause of action for
a taking based on the United States’ termination of their
lawsuits pursuant to the Libya Claims Settlement
Agreement. The Court of Federal Claims did not err in
granting summary judgment.
                          CONCLUSION
    In sum, we hold that applying the relevant Penn
Central factors to the facts of this case, “justice and fair-
ness” counsel against finding that the Government’s
termination of Appellants’ claims effected a taking under
the Fifth Amendment. Accordingly, we affirm.
                         AFFIRMED
                             COSTS
    No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

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

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                  2016-2389, 2016-2402
                 ______________________

    Appeals from the United States Court of Federal
Claims in Nos. 1:14-cv-00687-TCW, 1:14-cv-00703-TCW,
Judge Thomas C. Wheeler.
                ______________________

REYNA, Circuit Judge, concurring-in-part and dissenting-
in-part.
    I concur with the majority opinion that affirms the
Court of Federal Claims’ grant of summary judgment. I
write to state a distinct basis by which I would affirm the
grant of summary judgment: that Appellants have no
right of action against the U.S. government based on
subrogated interests derived from insurance claims paid
in relation to the Libya-sponsored terrorist attacks. I
2                     AVIATION & GEN. INS.   v. UNITED STATES



respectfully disagree, however, with the majority view
that the U.S. Government’s termination of all U.S. suits
against Libya presents a justiciable question. According-
ly, I respectfully concur-in-part and dissent-in-part.
                      BACKGROUND
    On November 23, 1985, Libyan-sponsored terrorists
hijacked EgyptAir Flight 648 (“EgyptAir”) in an event
that resulted in loss of lives and the destruction of the
aircraft. On December 21, 1988, Libyan-sponsored terror-
ists bombed Pan Am Flight 103 (“Pan Am”) over Locker-
bie, Scotland, causing the disintegration of the aircraft
and loss of lives of all passengers and crew members.
    Appellants are insurance companies and an asset
management company that provided insurance and/or
reinsurance for property damage to aircrafts, and liability
insurance covering passengers of the airlines. Except for
New York Marine and General Insurance Company (“NY
Marine”), all appellants are foreign entities. Appellants
paid out on insurance contracts that covered the EgyptAir
and Pan Am events. For claims related to EgyptAir, the
Egyptian airline insured the aircraft hull for about $14
million through an Egyptian insurance company, MISR
Insurance Company. The aircraft was destroyed in the
terrorist attack, and Appellants together paid reinsurance
coverage of about 75.55% of the $14 million amount.
    For claims related to Pan Am, the U.S. airline insured
the aircraft hull and obtained liability insurance for
bodily injury (including death) to its passengers arising
out of airline operations. Appellants Aviation & General
Insurance Company, Ltd. (“Aviation”) and Certain Un-
derwriters at Lloyds London (“Lloyds”), both UK entities,
provided portions of the insurance. The Pan Am bombing
resulted in the death of all passengers and the destruction
of the aircraft. Appellants claim to have paid approxi-
mately $55 million to Pan Am for the airplane hull and
AVIATION & GEN. INS.   v. UNITED STATES                    3



the claims brought by families of the U.S. and foreign
nationals that perished in the Pan Am bombing. 1
    At the time of the terrorist attacks, the Foreign Sov-
ereign Immunities Act of 1976 prohibited suits in U.S.
courts brought against other countries, with certain
exceptions. See 28 U.S.C. § 1604; see also id. §§ 1605–07
(providing exceptions). One exception stripped a foreign
state of immunity in any U.S. suit arising from certain
acts of terrorism that occurred when the state was desig-
nated a sponsor of terrorism. In 1996, Congress designat-
ed Libya a sponsor of terrorism, a political act that lifted
sovereign immunity protection for Libya for state spon-
sored terrorism acts. See 28 U.S.C. § 1605(a)(7) (repealed
Pub. L. 110-181, Div. A, § 1083(b)(1)(A)(iii), Jan. 28, 2008,
122 Stat. 341).
     In 1998 and 2006, Appellants filed suits against the
Libyan government in the United States District Court
for the District of Columbia. 2 Among other things, Appel-
lants plead standing on the basis of insurance subrogation
rights, seeking damages for insurance claims they paid as
a result of the EgyptAir and Pan Am attacks.
    In 2008, while the lawsuits were pending, the U.S.
Government engaged in a process to normalize relations
with Libya. Congress passed the Libyan Claims Resolu-
tion Act (“LCRA”), Pub. L. No. 110-301, 122 Stat. 2999



    1   NY Marine, the sole U.S. entity, was not a party
in the Pan Am claims.
    2   See Certain Underwriters at Lloyds London v. So-
cialist People’s Libyan Arab Jamahiriya, No. 1:06-cv-
00731(GK) (D.D.C. filed Apr. 21, 2006) (EgyptAir claims);
Hartford Fire Ins. Co. v. Socialist People’s Libyan Arab
Jamahiriya, No. 1:98-cv-03096 (TFH) (D.D.C. filed Dec.
18, 1998) (Pan Am claims).
4                      AVIATION & GEN. INS.   v. UNITED STATES



(2008), restoring Libya’s sovereign immunity and imple-
menting the Libya Claims Settlement Agreement
(“LCSA”). Pursuant to those Congressional legislative
acts, President Bush signed an Executive Order terminat-
ing all pending U.S. suits against Libya related to the
EgyptAir and Pan Am terrorism attacks. See Executive
Order No. 13,477, Fed. Reg. 65,965 (Oct. 31, 2008) (“Exec-
utive Order”). Pursuant to the LCRA, LCSA, and the
Executive Order, the district court dismissed Appellants’
suits for lack of jurisdiction. 3
     After the termination of the lawsuits, the State De-
partment referred U.S. nationals’ claims against Libya to
the Foreign Claims Settlement Commission (“FCSC”), a
settlement program funded by Libya in an approximate
amount of $1.5 billion. NY Marine, the sole U.S. Appel-
lant in the instant appeal, submitted claims to the FCSC
alleging a subrogated interest as reinsurer in losses
arising from the destruction of the airplane hull in the
EgyptAir attack. The FCSC denied the claims because of
a “continuous nationality” jurisdictional rule requiring
that all relevant parties in the chain of insurance (includ-
ing insurers, reinsurers, and the insured) must be U.S.
nationals from the date of injury to the date the U.S.
lawsuits were terminated under the Executive Order.
Although NY Marine, the reinsurer, was a U.S. national,
it is undisputed that both the insured, EgyptAir, and the
insurer, MISR Insurance Company, were foreign nation-
als.
    The other Appellants, all foreign entities, did not
submit EgyptAir-related claims with the FCSC. Appel-
lants Aviation and Lloyds, both foreign nationals, submit-


    3   Certain Underwriters at Lloyds London v. Great
Socialist People’s Libyan Arab Jamahiriya, 677 F. Supp.
2d 270, 275 (D.D.C. 2010).
AVIATION & GEN. INS.   v. UNITED STATES                  5



ted Pan Am-related claims with the FCSC, alleging a
subrogated interest in the claims of their insured, Pan
Am, for losses arising from the Pan Am bombing. The
FCSC rejected those claims, despite Pan Am’s U.S. na-
tionality, on grounds that the insurers were foreign
nationals at the time the terrorist attacks took place. 4
    In 2014, Appellants filed suit against the U.S. Gov-
ernment in the Court of Federal Claims, alleging that the
U.S. settlement with Libya, the termination of all U.S.
suits against Libya, and the denial of compensation from
the settlement funds constituted a taking under the Fifth
Amendment.
    The U.S. Government initially moved to dismiss on
grounds that the case involves a nonjusticiable political
question. The Court of Federal Claims denied the U.S.
Government’s motion reasoning that Appellants do not
question the President’s authority to conduct foreign
relations, but rather seek compensation for their termi-
nated claims and their exclusion from the settlement
proceeds. The Court of Federal Claims granted summary
judgment in favor of the U.S. Government, finding that



    4   The FCSC found that:
    [F]or purposes of the continuous nationality re-
    quirement, and as noted in numerous prior inter-
    national law decisions, an insurer bringing a
    claim as a subrogee does not adopt the nationality
    of its insured, the subrogor. Instead, the insurer
    must independently—and in addition to the in-
    sured—meet the continuous nationality require-
    ment.
J.A. 518. It is undisputed that Appellants Aviation and
Lloyds are foreign nationals.
6                      AVIATION & GEN. INS.   v. UNITED STATES



while Appellants had a property interest in their lawsuits
against Libya, no taking had occurred. See Aviation &
Gen. Ins. Co. v. United States, 127 Fed. Cl. 316 (Fed. Cl.
2016) (“Summary Judgment Order”).
   Appellants appeal. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3) (2012).
                       DISCUSSION
                       I. STANDING
    Appellants do not allege that they were directly in-
jured by the U.S. Government. Appellants predicate their
claims against the U.S. Government on their rights as
“subrogees to the claims of victims of Libyan terrorism.”
J.A. 140. Appellants claim to be “entitled to all the rights
and remedies belonging to the insured against a third
party with respect to any loss covered by the policy.”
J.A. 140.
    I believe that Appellants’ claims should be rejected for
lack of standing. 5 It is well established that subrogation
is a common law doctrine based in equity that permits an
insurer to take the place of the insured to pursue recovery
from third-party tortfeasors responsible for the insured’s
loss. Subrogation, Black’s Law Dictionary (9th ed. 2009).
What this means is that when an insurance company



    5   It is well-established that any party, including the
court sua sponte, can raise the issue of standing for the
first time at any stage of the litigation, including on
appeal. FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 230
(1990) (issue of standing raised sua sponte on appeal by
the Supreme Court); see Pandrol USA, LP v. Airboss Ry.
Prod., Inc., 320 F.3d 1354, 1367 (Fed. Cir. 2003). Alt-
hough the parties did not argue standing, I sua sponte
raise this important issue.
AVIATION & GEN. INS.   v. UNITED STATES                    7



pays an insured for property damage or physical injury,
the insurance company steps into the shoes of the insured
and can bring suit against a third party (e.g., a tortfeasor)
to recover damages caused to the insured. The insurance
company’s subrogated interest is limited by whatever
restrictions would have applied against the insured had
the insured itself brought the action against the tortfea-
sor.
    Aside from equitable subrogation, a subrogation right
may be expressly created by contract or statute. The
right of subrogation, however, cannot be contractually
enlarged beyond what is granted in equity. See, e.g.,
Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d
946, 957 (9th Cir. 2013). As noted above, an important
limit to the right of subrogation is that it is a purely
derivative right, and “a subrogee takes no more rights
than its subrogor had.” United States v. California, 507
U.S. 746, 747 (1993).
    It is undisputed that EgyptAir and Pan Am airlines
could not maintain suits against Libya in U.S. courts after
Congress passed the LCRA and the President signed the
Executive Order. LCRA expressly provides that
    [A]ny other private right of action relating to acts
    by a state sponsor of terrorism arising under Fed-
    eral, State, or foreign law shall not apply with re-
    spect to claims against Libya, or any of its
    agencies, instrumentalities, officials, employees,
    or agents in any action in a Federal or State court.
Pub. L. No. 110-301, 122 Stat. 2999 (2008). The Execu-
tive Order provides that “[a]ny pending suit in any court,
domestic or foreign, by United States nationals . . . coming
within the terms of Article I [of the LCSA] shall be termi-
nated” and that “[a]ny pending suit in any court in the
United States by foreign nationals . . . coming within the
terms of Article I [of the LCSA] shall be terminated.”
Executive Order No. 13,477, Fed. Reg. 65,965. If the
8                     AVIATION & GEN. INS.   v. UNITED STATES



insureds, EgyptAir and Pan Am airlines, could not sue
Libya, and by extension the U.S. Government, there is no
(subrogated) legal basis on which the insurer and reinsur-
ers can seek recovery against Libya or the U.S. Govern-
ment. Given that EgyptAir and Pan Am have no claim in
U.S. courts against Libya or the U.S. Government, their
insurers also have no such claim.
    Similarly, Appellants wrongly base their claims relat-
ed to the Pan Am bombing on their “subrogated interest
in the payments made to the insured as a result of the
deaths of everyone on board Pan Am Flight 103.” J.A.
140. Here, the insured is Pan Am, not the victims. Ap-
pellants have no subrogated interest that accrued from
the claims of the victims who perished in the Pan Am
bombing. As the FCSC found, Appellants “would only be
subrogated to the claims of the party they insured, Pan
Am. The victims, in contrast, were third parties who
brought suit against the Pan Am Subrogees’ [i.e., Appel-
lants’] insured, [the] Pan Am [airline].” J.A. 551.
     Appellants’ claims are further limited by the terms of
a settlement agreement between Pan Am and the victims’
claimants that included a release wherein the right to
bring suit against Libya was reserved, which they in fact
did in the Rein litigation. See Rein v. Socialist People’s
Libyan Arab Jamahiriya, No. 9:96-cv-02077 (E.D.N.Y.
filed Apr. 29, 1996). Pan Am and its insurers did not
become subrogated to the claims asserted in Rein. 6



    6   The releases between Pan Am, Appellants and the
victims include the following language:
    All parties to this release reserve any and all
    rights they have against foreign states, including
    but not limited to Libya, Syria and/or Iran, and
    their employees, agents and assets in connection
AVIATION & GEN. INS.   v. UNITED STATES                  9



Because neither Appellants nor Pan Am possess a subro-
gated interest in the victim claims against Libya, neither
can sue the U.S. Government on behalf of the victims.
    Assuming Appellants have a subrogated interest in
the claims of the Pan Am victims, they do not necessarily
have a cause of action against the U.S. Government. As
Appellants acknowledge, see Appellants Br. 11, the vic-
tims of the Pan Am attack settled their claims against
Libya and were compensated pursuant to the LCSA, not
as a result of a suit against Libya. Thus, it follows that
Appellants cannot overstep the rights of the insured to
bring claims against the U.S. Government, where the
victims themselves did not have a claim against the U.S.
Government. If an insurer believes that an insured has
been unjustly enriched by receiving both insurance policy
payout from the insurer and compensation from the
tortfeasor, the insurer may pursue a subrogation claim
against the insured. But that is not the case here.
     Appellants’ claims against the U.S. Government fail
for a separate reason. Courts have generally interpreted
that, in the context of insurance claims, the insurer’s
claim against a third party based on a subrogated inter-
ests is limited to actual tortfeasors. See Md. Cas. Co. v.
W.R. Grace & Co., 218 F.3d 204, 210 (2d Cir. 2000) (af-
firming that “the subrogation doctrine ‘applies only
against tortfeasors’” and that permitting subrogation
against a non-tortfeasor third party insurer “would vio-
late fundamental principles of restitution or unjust en-
richment law on which the doctrine of subrogation rests”
(citation omitted)); Wendy’s Int’l, Inc. v. Karsko, 94 F.3d



    with the perpetration of an aircraft bombing of
    Pan Am Flight 103, on December 21, 1988.
J.A. 558.
10                     AVIATION & GEN. INS.   v. UNITED STATES



1010, 1014 (6th Cir. 1996) (holding that an equitable right
of subrogation was limited to tortfeasors and dismissing
plaintiff’s claim); Commercial Union Ins. Co. v. Bitumi-
nous Cas. Corp., 851 F.2d 98, 100–01 (3d Cir. 1988)
(holding that the principle of subrogation is inapplicable
where the third party is not responsible for the loss);
Bogart v. Twin City Fire Ins. Co., 473 F.2d 619, 629 (5th
Cir. 1973) (holding that an insurance carrier’s right of
subrogation “has been recognized only in actions involving
a tortfeasor”).
    Both the Restatement of Restitution and treatises on
this topic support this interpretation. For example, the
Restatement defines the right of subrogation to apply
“[w]here property of one person is used in discharging an
obligation owed by another . . . under such circumstances
that the other would be unjustly enriched by the retention
of the benefit thus conferred.” Restatement (First) of
Restitution § 162 (1937). Similarly, Palmer’s treatise on
restitution indicates that an “insurance company’s subro-
gation rights extend no further than is necessary to
prevent unjust enrichment of the insured[,]” and warns
that “[s]ubrogation cannot be used as a legal mechanic
whereby one person is substituted to another’s cause of
action against a third person.” Palmer, Law of Restitu-
tion §§ 23.11, 23.13 (1978); see 16 Couch on Ins. § 224:113
(Subrogation right is limited to true tortfeasors.).
    Here, the U.S. Government is not the tortfeasor in the
EgyptAir and Pan Am attacks. The extent of the U.S.
involvement in Appellants’ claims is limited to actions
taken by the Congressional and Executive branches years
after the terrorist attacks. 7 Appellants do not allege, nor


     7  The only actions that Appellants allege against
the Government are those related to the restoration of
relations with Libya: Congress passed the Libyan Claims
AVIATION & GEN. INS.   v. UNITED STATES                   11



does the record indicate, that the U.S. Government was in
any way responsible for the Libya attacks, or that it has
otherwise been unjustly enriched. Courts have held that
“[t]he American government should not be held as a
surrogate for [another nation’s] unjustifiable actions.”
Belk v. United States, 12 Cl. Ct. 732, 735 (1987), aff’d, 858
F.2d 706 (Fed. Cir. 1988); see Abrahim-Youri v. United
States, 36 Fed. Cl. 482, 487 (1996), aff’d, 139 F.3d 1462
(Fed. Cir. 1997) (“The property losses that plaintiffs
suffered were occasioned by Iran, not the United States.”).
Thus, the doctrine of subrogation would apply to Libya,
the state sponsor of terrorists, or perhaps the terrorists
themselves, but not the U.S. Government. 8
    For these reasons, I conclude that Appellants have no
standing against the U.S. Government for a Fifth
Amendment takings claim arising from the Libya attacks.




Resolution Act (“LCRA”) restoring Libya’s sovereign
immunity, and the President signed the Libya Claims
Settlement Agreement (“LCSA”) and the Executive Order
No. 13,477 (“Executive Order”) terminating all pending
claims against Libya.
     8  This court has held that the doctrine of subroga-
tion for claims against the U.S. Government applies only
in limited circumstances involving government contracts.
Ins. Co. of the W. v. United States, 243 F.3d 1367, 1370
(Fed. Cir. 2001) (“[A] surety may succeed to the contrac-
tual rights of a contractor against the government: when
the surety takes over contract performance or when it
finances completion of the defaulted contract.”). Appel-
lants do not allege any contractual relationship between
the insured and the U.S. Government in this case.
12                         AVIATION & GEN. INS.   v. UNITED STATES



                     II.       JUSTICIABILITY
     Appellants assert that the U.S. Government’s termi-
nation of their pending claims against Libya and its
decision to deny them compensation from the LCSA fund
constituted a taking of property in violation of the Fifth
Amendment. The U.S. Government argues that Appel-
lants’ claims present nonjusticiable political questions. I
agree.
    The majority holds that Appellants’ claims that are
directed to their exclusion from the distribution of LCSA
settlement funds present a nonjusticiable issue. Maj. Op.
at 10. I agree. The U.S. Government historically has
possessed wide latitude to settle the legal claims of its
nationals against foreign governments in the interests of
American foreign policy. 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 Consti-
tution to the Executive and Legislative—‘the political’—
Departments of the Government.”). I agree with my
colleagues’ reasoning that “the President had complete
discretion and authority to implement the settlement
with Libya and to whom the settlement funds would be
distributed” and that “[t]he President’s policy decision
regarding the settlement funds is not a determination for
judicial resolution.” Maj. Op. at 12.
    The majority however, also holds that “[t]he claims in
Appellants’ complaints regarding the Government’s
termination of their lawsuits against Libya state a justi-
ciable takings claim.” Maj. Op. at 11. I disagree.
     My colleagues explain that:
     These claims do not cause us to question the
     terms of the Libya Claims Settlement Agreement
     itself, whether the President had authority to en-
     ter the settlement, or whether the President
     should have made provision for Appellants in the
AVIATION & GEN. INS.   v. UNITED STATES                    13



    distribution of its funds. Rather, these claims re-
    quire us to examine whether, under the Fifth
    Amendment, a taking occurred by the Govern-
    ment’s espousal of Appellants’ claims and termi-
    nation of their lawsuits by reinstating Libya’s
    sovereign immunity. This is a legal question for
    which we have judicially discoverable and man-
    ageable standards for resolution.
Id. at 11. My colleagues rely on Baker v. Carr, 369 U.S.
186 (1962), in which the Supreme Court outlined six
independent criteria for determining whether courts
should defer to the political branches on an issue:
    Prominent on the surface of any case held to in-
    volve a political question is found [1] a textually
    demonstrable constitutional commitment of the
    issue to a coordinate political department; or [2] a
    lack of judicially discoverable and manageable
    standards for resolving it; or [3] the impossibility
    of deciding without an initial policy determination
    of a kind clearly for nonjudicial discretion; or [4]
    the impossibility of a court’s undertaking inde-
    pendent resolution without expressing lack of the
    respect due coordinate branches of government; or
    [5] an unusual need for unquestioning adherence
    to a political decision already made; or [6] the po-
    tentiality of embarrassment from multifarious
    pronouncements by various departments on one
    question.
Id. at 217. The majority finds that claims regarding
termination of suits against Libya are justiciable under
the second Baker criterion; “a legal question for which we
have judicially discoverable and manageable standards
for resolution.” Maj. Op. at 11. However, this does not
end the justiciability inquiry. Baker outlined six separate
criteria for justiciability, and any single one may be
grounds for finding nonjusticiability.
14                     AVIATION & GEN. INS.   v. UNITED STATES



    The LCRA, LCSA, and the Executive Order all
demonstrate a commitment to Congress and the President
to manage the international affairs of the country. The
Supreme Court has long acknowledged the U.S. Govern-
ment’s singular authority specifically with respect to legal
claims against foreign states. Dames & Moore, 453 U.S.
654, 679–80 (1981) (“[T]he United States has repeatedly
exercised its sovereign authority to settle the claims of its
nationals against foreign countries.”). This authority has
been well established. Shanghai Power Co. v. United
States, 4 Cl. Ct. 237, 244 (1983); aff’d, 765 F.2d 159 (Fed.
Cir. 1985) (“Our Presidents have exercised the power to
settle international claims of U.S. nationals at least since
1799.”).
    Here, the U.S. Government’s termination of all suits
is part and parcel of the U.S. Government’s political
process involving a belligerent nation, Libya. The U.S.
Government’s effort to restore relations with Libya is a
legitimate U.S. policy objective aimed at addressing not
only foreign relations, but also in combatting internation-
al acts of terrorism. Here, the political branches of the
U.S. Government worked in concert towards this objec-
tive. Congress passed the LCRA to restore Libya’s sover-
eign immunity, which provides that “any other private
right of action relating to acts by a state sponsor of terror-
ism arising under Federal, State, or foreign law shall not
apply with respect to claims against Libya, or any of its
agencies, instrumentalities, officials, employees, or agents
in any action in a Federal or State court.” Pub. L. No.
110-301, 122 Stat. 2999. Subsequently, the President
signed the Executive Order providing 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 Agree-
AVIATION & GEN. INS.   v. UNITED STATES                  15



ment] shall be terminated.” Executive Order No. 13,477,
Fed. Reg. 65,965. I do not think it is possible to address
Appellants’ claim without involving U.S. Government
policy decisions and directives of a kind clearly for nonju-
dicial discretion.
    In my view, the case for nonjusticiability of claims
based on the termination of Appellants’ suits is stronger
than the case of nonjusticiability on the question involv-
ing distribution of LCSA funds. While only the executive
branch was involved in the fund’s distribution, the termi-
nation of the suits was born of concerted actions by both
Congress and the Executive branch.
    The majority opinion would permit suits against the
U.S. Government that are based on the termination of
lawsuits against Libya. Such a question would necessari-
ly involve second guessing the acts of the President and
Congress, and undermine their negotiating authority to
resolve conflicts with foreign nations.
    In addition, as this case demonstrates, permitting
takings claims against the U.S. Government in matters
such as this would shift significant liability from the
vaults of foreign wrongdoers to the backs of American
taxpayers, a burden that could easily run into billions of
dollars, per event. 9



    9   For example, multiple multi-million-dollar judg-
ments have been entered against Iran alone under the
terrorism exception. See, e.g., Wagner v. Islamic Republic
of Iran, 172 F. Supp. 2d 128, 138 (D.D.C. 2001) (awarding
over $316 million); Jenco v. Islamic Republic of Iran, 154
F. Supp. 2d 27, 29–30, 40 (D.D.C. 2001) (awarding over
$314 million); Sutherland v. Islamic Republic of Iran, 151
F. Supp. 2d 27, 30–31, 53 (D.D.C. 2001) (awarding over
$353 million).
16                     AVIATION & GEN. INS.   v. UNITED STATES



    There is a lack of fundamental fairness in requiring
U.S. taxpayers to pay potentially large awards for terror-
ist acts perpetrated by foreign state sponsored terrorism,
especially when the attacks happen overseas and the
parties bringing the actions are foreign entities. See Belk,
858 F.2d at 706 (“The American government should not be
held as a surrogate for [another nation’s] unjustifiable
actions.”); Abrahim-Youri, 139 F.3d at 1462 (same).
Indeed, the Executive Order does not foreclose foreign
insurers from pursuing their claims in other countries. 10
Thus, while I agree with my colleagues that “Appellants’
failure to seek relief in a foreign forum should not be a
cost shouldered by the American public,” I see this as
more a political question involving U.S. Government
policy, than a mere legal consideration. Maj. Op. at 18.
    Entertaining Appellants’ takings claims risks upset-
ting decades of settled law and would materially interfere
with the U.S. Government’s constitutional prerogative in
foreign relations. The U.S. Government’s authority to
negotiate with belligerent nations, including state spon-
sors of terrorism, is a matter of foreign relations, and, as
here, one of national security. The courts should not
interfere in this business. These are political questions
that have no resolution in U.S. courts.
   Because the Constitution commits foreign relations
matters to the U.S. Government’s political branches, I


     10 The President’s Executive Order provided that
with respect to suits by foreign nationals “[n]either the
dismissal of the lawsuit, nor anything in this order, shall
effect the ability of any foreign national to pursue other
available remedies for claims coming within the terms of
Article I [of the Libya Claims Settlement Agreement] in
foreign courts or through the efforts of foreign govern-
ments.” Executive Order No. 13,477, Fed. Reg. 65,965.
AVIATION & GEN. INS.   v. UNITED STATES                  17



would find that all of Appellants’ takings claims present
nonjusticiable political questions. The court has no role in
shaping and elaborating the international policy of the
country. “The nonjusticiability of a political question is
primarily a function of the separation of powers.” Baker,
369 U.S. at 210.
                          CONCLUSION
    For these reasons, I would affirm the summary judg-
ment by the Court of Federal Claims, but would hold that
the court is precluded from considering Appellants’ Fifth
Amendment takings claim on the basis that those claims
presents a nonjusticiable political question.
