             In the United States Court of Federal Claims
                                            No. 16-1090
                                        Filed: July 11, 2019

                                                 )
 TEMOR S. SHARIFI,                               )
                                                 )
                        Plaintiff,               )
                                                 )     Takings Clause; Act of State Doctrine;
        v.                                       )     Real Property; Cognizable Property
                                                 )     Interests; Foreign Law.
 THE UNITED STATES,                              )
                                                 )
                        Defendant.               )
                                                 )
                                                 )


       Carolyn L. Gaines, Philadelphia, PA, for plaintiff.
      Edward Carlos Thomas, IV, U.S. Department of Justice, Environment and Natural
Resources Division, Washington, D.C., for defendant.
                                            OPINION
FUTEY, Senior Judge
       This case is before the Court on defendant’s motion to dismiss plaintiff’s amended

complaint (“Am. Compl.”), which was filed on February 15, 2017, pursuant to rules 12(b)(1) and

12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”). Defendant filed its motion on

April 10, 2017. Plaintiff filed a response on May 11, 2017, and the defendant filed its reply on

May 30, 2017. After hearing oral argument on the motion, the Court ordered supplemental

briefing. Defendant filed its supplemental brief on October 24, 2017, and the plaintiff filed a

response on November 21, 2017.

       The plaintiff, a United States citizen, seeks damages for a taking of real property by the

United States in Afghanistan. In its motion to dismiss, the defendant makes four arguments:

First, the defendant argues that the United States may not be held liable for a taking carried out
by an international military coalition. Second, the defendant argues that plaintiff’s lawsuit is

barred by the act of state doctrine. Third, the defendant urges dismissal because plaintiff has

failed to “identify the specific property interest alleged to have been taken by the United States”

as required by RCFC 9(i). Lastly, the defendant argues that plaintiff has not shown he is the

owner of the land.

         The matter is now ripe for disposition.

    I.      BACKGROUND

            a. Factual Background1

         The amended complaint alleges as follows: Approximately 100 years ago, plaintiff’s

grandfather—Haji Mohammad Sharif—acquired 38 jeribs2 in Deh-e-Kowchay, Arghandab

District, Kandahar in Afghanistan. ECF No. 10 (“Am. Compl.”) ¶¶ 4–5. Plaintiff’s grandfather

then allegedly passed the land down to plaintiff’s father—Haji Abdul Ghafur Khan. Id. ¶ 6. In

April 2004, after plaintiff’s father died, plaintiff and his siblings entered into an agreement to

subdivide the land. Id.; see also id. Ex. A (inheritance agreement).3 Plaintiff then leased his land

to a tenant, who used it for farming. Id. ¶ 10.

         In October 2010, Walter A. Reed—a United States Company Commander—

recommended that the United States Army (“U.S. Army”) establish a command outpost near



1
  Specific dates for events are provided, except where the amended complaint specifies only to
the nearest month and no primary document bearing the applicable date has been filed. See, e.g.,
Am. Compl. ¶ 16.
2
  A jerib is a “unit of land measurement equivalent to 2,000 square metres or one fifth of a
hectare.” Liz Alden Wily, Land, People, and the State in Afghanistan 2002–2012, Afg. Res. &
Evaluation Unit, at 2 (Feb. 2013).
3
  Defendant disputes the legal effectiveness of plaintiff’s inheritance agreement as well as his
proof of land ownership. See Gov’t Ex. 6. The Court addresses those arguments later in this
Opinion.
                                                   2
Deh-e-Kowchay. Gov’t Ex. 3. Commander Reed investigated ownership of the field where the

U.S. Army wished to construct an outpost, but the identity of the owner or owners was

“unknown.” Id. Plaintiff alleges that Commander Reed then met twice with plaintiff’s brother to

discuss the possibility of leasing plaintiff’s land. Am. Compl. ¶¶ 7–8.4 At some point, plaintiff

instructed his brother not to return to the U.S. Army base where he had met with Commander

Reed “for security purposes and to protect his family.” Id. ¶ 11.

        On October 18, 2010, the government of Afghanistan granted the U.S. Army a one-year

“License for Construction” (hereinafter “license” or “license agreement”) to build a combat

outpost. Gov’t Ex. 3. The license applies to land “outside the village of Deh-e-Kowchay . . .

described in Exhibit A and depicted on the map at Exhibit B.”5 Id. The license “warrants that

[the government of Afghanistan] is the rightful and legal owner of the herein described

premises.” Id. The license also provides that, “If the title of the [government of Afghanistan]

shall fail, or if it be discovered that the [government of Afghanistan] did not have authority to

issue this License the [United States] shall have the option to terminate this Right-of-Entry and

the [government of Afghanistan] agrees to indemnify the [United States] by reason of such

failure.” Id.



4
  Then-Commander (now-Major) Reed remembers these conversations differently. According to
Commander Reed, he communicated to two individuals “that [he] had no authority to bind the
U.S. government in either a lease or an offer to purchase the land.” Gov’t Ex. 3. Commander
Reed also informed his counterparties that “they needed to prove to the proper official in the
Arghandab District government that they owned the land because the land was committed to use
by U.S. and Afghan forces by the Arghandab District government.” Id. At this early stage, the
Court may not wade into these factual disputes and accepts plaintiff’s allegation that Commander
Reed expressed some interest in leasing the land from its owner. See Athey v. United States, 908
F.3d 696, 705 (Fed. Cir. 2018) (“The court must accept well-pleaded factual allegations as true
and must draw all reasonable inferences in favor of the claimant.”).
5
  The defendant did not include either “Exhibit A” or “Exhibit B” in its submissions to this
Court, so the precise geographic scope of the license is unclear.
                                                 3
       The license also appears to contemplate a future acquisition of additional land by the

District Governor of Arghandab (“District Governor”). Id. It goes on to state, “Upon purchase

we will move the necessary establishments to new boundary line.” Id. Whether such an

acquisition—or corresponding adjustment in boundary lines—ever took place is unclear.

       The signature block of the license indicates that one individual signed on behalf of the

“Government of the Islamic Republic of Afghanistan,” and another individual signed on behalf

of “The United States of America.” Id. A third line, labeled “Owner of Land,” is blank. Id.

       In October and November 2010, the U.S. Army, the Afghan National Army, the Afghan

National Police, private contractors, and other elements of the International Security Assistance

Force (“ISAF”)6 built Combat Outpost Millet (“COP Millet”). Gov’t Ex. 3.

       The plaintiff later discovered that the U.S. Army had demolished houses and trees to

construct COP Millet. Am. Compl. ¶¶ 9, 14. He telephoned Commander Reed with the intent to

provide proof of ownership. Id. ¶ 12. Plaintiff also spoke with other U.S. Army personnel. Id. ¶

13.

       On December 7, 2010, plaintiff wrote a letter to the Governor of Kandahar (“Governor”)

requesting compensation for the U.S. Army’s occupation of his land. Id. Ex. A. On January 3,

2011, the Governor referred plaintiff’s request to the District Governor. Id. The District

Governor responded by verifying that Haji Mohammad Sherif (plaintiff’s grandfather) owned the

land in question. Id.



6
  The United Nations Security Council formed the ISAF on December 20, 2001 “to assist the
Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so
that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a
secure environment.” U.N. Docs. S/RES/1386 (Dec. 20, 2001).
                                                 4
       On June 3, 2012, plaintiff wrote a letter to the District Governor again requesting

compensation. Id. Plaintiff also petitioned the Governor asking for assistance. Id. On July 17,

2012, the Governor again referred plaintiff’s request to the District Governor. Id. Sometime

thereafter, the District Governor responded that the U.S. Army had taken the property in question

but had not paid rent or other compensation.7 Id.

       In September 2012, then-Commander Barry F. Huggins executed a “Statement of Intent

for the Transfer of COP Millet.” Gov’t Ex. 5. The statement memorialized the ISAF’s intent to

turn over COP Millet to the Afghan Uniform Police on September 25, 2012. Id. The statement

bears Huggins’s signature, in his capacity as a Colonel in “2/2 SBCT.”8 Id.

       In December 2012, plaintiff filed a complaint with the United States Department of

Defense but did not receive a response. Am. Compl. ¶ 16. On December 12, 2016, plaintiff sent a

letter to the District Governor, together with a sketch of plaintiff’s land, asking that the District

Governor verify plaintiff’s ownership. Id. Ex. A. The District Governor responded by verifying

plaintiff’s ownership. Id.

           b. Procedural Background

       On August 31, 2016, plaintiff filed a complaint in this Court. ECF No. 1. On October 24,

2016, defendant filed a motion for a more definite statement pursuant to RCFC 12(e). ECF No.

5. On November 10, 2016, plaintiff filed a response, and on November 21, 2016, defendant filed




7
 It is not clear if the District Governor was aware of the existence of the license agreement.
8
 “2/2 SBCT” stands for 2nd Stryker Brigade Combat Team, 2nd Infantry Division. See Gov’t
Ex. 5.
                                                   5
a reply. ECF Nos. 6, 7. On February 1, 2017, the Court granted defendant’s motion for a more

definite statement and directed plaintiff to file an amended complaint. ECF No. 8.

          On February 15, 2017, plaintiff filed an amended complaint. ECF No. 10. The amended

complaint requests $1,400,000.00, plus interest, as just compensation for the taking of plaintiff’s

property. Am. Compl. ¶ 19. The amended complaint also requests costs and attorney’s fees. Id.

          On April 10, 2017, defendant filed a motion to dismiss (“Gov’t Mot.”), together with

accompanying exhibits and declarations (“Gov’t Ex. 1–6”). ECF No. 13. On May 11, 2017,

plaintiff filed a response (“Pl.’s Resp.”), and on May 30, 2017, defendant filed a reply (“Gov’t

Reply”). ECF Nos. 14, 15.

          On September 19, 2017, the Court heard oral argument on the defendant’s motion

(“9/19/17 Tr.”). ECF No. 19. That same day, the Court ordered supplemental briefing

“addressing Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953), as well as the relevant laws

of Afghanistan.” ECF No. 17.

          On October 24, 2017, defendant filed a supplemental brief (“Gov’t Supp. Br.”), and on

November 21, 2017, plaintiff filed a response (“Pl.’s Supp. Br.”). ECF Nos. 23, 24. On

December 1, 2017, plaintiff moved for leave to file additional exhibits with his supplemental

brief. ECF No. 25. On December 4, 2017, the Court granted the motion to file additional

exhibits. ECF No. 26.

          On July 10, 2018, the Court again heard oral argument on the motion to dismiss

(“7/10/18 Tr.”). ECF No. 32. On May 3, 2019, the case was transferred to the undersigned. ECF

No. 33.




                                                  6
    II.      DISCUSSION

          The defendant moves to dismiss the amended complaint for four independent reasons.

First, defendant argues that the United States may not be held liable for a taking carried out by

the ISAF and/or the government of Afghanistan. Gov’t Mot. at 6–8. Second, defendant argues

that plaintiff’s lawsuit is barred by the act of state doctrine. Id. at 8–10. Third, defendant urges

dismissal because plaintiff has failed to “identify the specific property interest alleged to have

been taken by the United States” as required by RCFC 9(i). Id. at 10–12. Lastly, defendant

argues that plaintiff has not shown he is the owner of the land identified in the amended

complaint. Id. at 12–17. The Court addresses each of these arguments in turn.

          a. Legal Standard

          Rule 12(b)(6) permits a party to file a motion to dismiss for “failure to state a claim upon

which relief can be granted.” RCFC 12(b)(6). “To survive a motion to dismiss, a complaint must

contain sufficient factual allegations that, if true, would state a claim to relief that is plausible on

its face.” Athey, 908 F.3d at 705 (internal quotations omitted). “The court must accept well-

pleaded factual allegations as true and must draw all reasonable inferences in favor of the

claimant.” Id.

          The Fifth Amendment provides that “private property” may not be “taken for public use,

without just compensation.” U.S. Const. amend. V. “To state a claim for a taking, [plaintiffs]

must establish: (1) that they had a cognizable property interest, and (2) that their property was

taken by the United States for a public purpose.” Alimanestianu v. United States, 888 F.3d 1374,

1380 (Fed. Cir. 2018).




                                                   7
       “Takings claims typically come in two forms: per se or regulatory.” Id. “To find a per se

taking, there must be either a permanent physical invasion, or a denial of all economically viable

uses of the property.” Id. (citations omitted). “When the Government commits a per se taking, it

has a categorical duty to pay just compensation.” Id. “A regulatory taking involves a restriction

on the use of property that [goes] ‘too far.’” Id. (internal quotations omitted) (modification in

original). “To determine whether a Government action goes ‘too far,’ courts have traditionally

utilized a three-pronged factual inquiry illuminated by Penn Central Transportation Co. v. City

of New York, which looks to: ‘the character of the governmental action,’ ‘the extent to which the

regulation has interfered with distinct investment-backed expectations,’ and ‘[t]he economic

impact of the regulation on the claimant.’” Id. at 1380–81 (modification in original).

       The amended complaint appears to allege a per se taking. See Am. Compl. ¶ 9 (“houses

and trees” were “demolished”). The Court, however, does not need to decide which legal

framework applies at this stage because none of defendant’s arguments for dismissal turns on the

per se versus regulatory distinction.

       b. The United States May Have Taken Private Property to Construct Combat
          Outpost Millet
       The defendant argues the United States is not liable, because the construction of COP

Millet was carried out by the ISAF together with the government of Afghanistan. Gov’t Mot. at

6–8. Plaintiff responds that the United States took his property, as evidenced by the license

between the United States and the government of Afghanistan. Pl.’s Resp. at 3–5.

       In support of its position, defendant invokes Standard-Vacuum Oil Co. v. United States,

153 F. Supp. 465 (Ct. Cl. 1957), for the proposition that the United States cannot be held liable




                                                  8
for takings committed by international military coalitions, even if the United States is a member

of that coalition. Gov’t Mot. at 7.

        Standard-Vacuum dealt with the status of certain property in Japan after World War II.

During the war, the Japanese government seized the plaintiff’s property. 153 F. Supp. at 465.

After the Japanese government surrendered, the Supreme Commander for the Allied Powers

established procedures for individuals like the plaintiff to recover seized property. Id. at 466. The

plaintiff then filed requests in accordance with those procedures. Id. In response, the Supreme

Commander for the Allied Powers directed the Japanese government to restore title to the

plaintiff, but temporarily retained possession of some items that were being used by occupation

forces. Id.

        The Court of Claims held that “all action taken was by the Supreme Commander for the

Allied Powers, not by the United States.” Id. On that basis, the court held that “[t]here was no

taking by the United States and thus the Government is not liable under the [F]ifth

[A]mendment.” Id. “To hold otherwise,” the court reasoned, “would be to open the door to

claims of not only citizens but noncitizens alike for all occupancy by the Allied Powers, thus

causing the United States to bear almost the entire financial burden, not only of the war but also

of the peace.” Id. at 466–67.

        In response, plaintiff relies on Turney, the case this Court asked the parties to address in

supplemental briefing. Turney dealt with a takings claim arising out of the disposal of military

surplus in the Philippines after World War II. The facts are complex; suffice to say that a central

question in the case was whether the United States was responsible for a taking carried out by the

government of the Philippines when it imposed an embargo on the export of certain radar

equipment. 115 F. Supp. at 463. The Court of Claims held that the United States was liable,

                                                  9
because “relations, at the time, between our Government and the Philippine Government, were

close.” Id. As evidence of close relations, the Court of Claims cited the following facts:

                 Our armed forces had just liberated the Philippines from the
                 Japanese. Our Government had given one hundred million dollars
                 worth of surplus property to the Philippines, including the property
                 at the Leyte Air Depot, and had sold the property for the account of
                 the Philippine Government. When we requested that Government to
                 place an embargo upon the exportation of any of the property, it,
                 naturally, readily complied. That put irresistible pressure upon the
                 corporation to come to terms with the United States Army, the terms
                 being that the radar equipment would be segregated in charge of the
                 Army and would not be disposed of until a final agreement was
                 reached as to its disposition. The final agreement turned the property
                 back to the Army in exchange for a receipt, and with a reservation
                 of the right to sue for its value.
Id. at 463–64.

       In their supplemental briefs, the parties debate whether Standard-Vacuum or Turney is

more analogous to this case. See Pl.’s Supp. Br. at 1–4; Gov’t Supp. Br at 3–6. But neither party

analyzes the facts using the Federal Circuit’s more recent test for whether the United States is

liable for takings committed by international entities. See Erosion Victims of Lake Superior

Regulation v. United States, 833 F.2d 297, 299 (Fed. Cir. 1987).

       “One seeking just compensation from the United States for actions of an international

organization must show ‘sufficient direct and substantial United States involvement.’” Id.

(quoting Langenegger v. United States, 756 F.2d 1565, 1571 (Fed. Cir. 1985)). “That required

showing depends on the sum of two factors: (1) the nature of the United States’ activity, and (2)

the level of benefit the United States has derived.” Id.

       The plaintiff has alleged facts that, if proven, would show the United States was involved

in the construction of COP Millet to a sufficient degree to find a Fifth Amendment taking. The

United States was a signatory to the license agreement with the government of Afghanistan that

                                                  10
authorized entry onto the land in question. Gov’t Ex. 3. And, the United States derived a clear

benefit from that license agreement; namely, the ability to construct COP Millet as housing and

protection for its forces. See id. (“COP Millet was intended to be used as a patrol base from

which soldiers could patrol the sector.”).

       The defendant’s reliance on Standard-Vacuum assumes the United States was acting as a

mere agent of the ISAF when it entered into the license agreement. In fact, however, no mention

of the ISAF appears on the license. Gov’t Ex. 3. Defendant asks the Court to take notice of the

fact that on July 31, 2006, the ISAF took command of the southern region of Afghanistan,

including Kandahar. Gov’t Mot. at 7 (citing ISAF’s mission in Afghanistan (2001-2014)

(Archived), NATO (updated Sept. 1, 2015), available at

https://www.nato.int/cps/en/natohq/topics_69366.htm). Assuming the information on the NATO

website is accurate, the ISAF’s leadership role in Kandahar at the time of the alleged taking does

not exclude the possibility of independent activities undertaken by the United States. Cf.

Progress toward Security and Stability in Afghanistan, U.S. Dept. of Defense, at 27 (Jan. 2009),

available at https://dod.defense.gov/Portals/1/Documents/pubs/OCTOBER_1230_FINAL.pdf

(“U.S. forces are deployed to Afghanistan either as part of Operation Enduring Freedom (OEF),

or the [ISAF].”). Drawing all reasonable inferences in plaintiff’s favor, a reasonable fact-finder

could find that the United States entered into the licensing agreement on its own behalf, even if it

did so to facilitate the construction of COP Millet by the ISAF. Consequently, plaintiff has

plausibly alleged that the United States was directly and substantially involved in the taking of

the disputed land.

       In its reply brief, defendant argues that—during the relevant time period—United States

forces in Kandahar operated exclusively under the direction of the ISAF. Gov’t Reply at 4; Gov’t

                                                11
Supp. Br. at 4. That argument may carry the day at summary judgment but, at this stage, would

require fact-finding that is inappropriate in evaluating a motion to dismiss. See Athey, 908 F.3d at

705; see also Glob. Freight Sys. Co. W.L.L. v. United States, 130 Fed. Cl. 780, 789 (Fed. Cl.

2017) (denying a motion to dismiss because the question of “‘direct and substantial [United

States] involvement’ requires a factual assessment which cannot be made on the basis of the

allegations at this early stage of litigation”).

        The defendant’s other arguments on the question of the United States’ involvement are

insufficient to justify dismissal. For example, defendant argues that Afghanistan should be liable

for any taking because COP Millet was constructed “with the full knowledge and support of the

Afghan government.” Gov’t Mot. at 7. That is not the law. In Turney, there was no doubt that the

United States took the plaintiff’s property with the full knowledge and support of the government

of the Philippines, but the Court of Claims nevertheless found the United States liable. See 115

F. Supp. at 463.

        The defendant next argues that “the Afghan forces stationed at COP Millet outnumbered

the ISAF forces,” and that “Afghanistan “has been [] the sole occupant [of COP Millet] since

September 2012.” Gov’t Mot. at 7–8. But, “[i]t is [] an accepted principle that it is not essential

for the government to have taken property for its own use for a taking to be found.”

Langenegger, 756 F.2d at 1570 (citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229

(1984)). The United States may not take property and subsequently avoid its obligation to pay

just compensation by placing that property at someone else’s disposal.

            c. The Act of State Doctrine Does Not Bar Plaintiff’s Claims

        The act of state doctrine bars United States courts “from declar[ing] invalid the official

act of a foreign sovereign performed within its own territory.” W.S. Kirkpatrick & Co. v. Envtl.

                                                   12
Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990). It is “a consequence of domestic separation of

powers, reflecting ‘the strong sense of the Judicial Branch that its engagement in the task of

passing on the validity of foreign acts of state may hinder’ the conduct of foreign affairs[.]” Id. at

404 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)). “Under that

doctrine, the courts of one state will not question the validity of public acts (acts jure imperii)

performed by other sovereigns within their own borders, even when such courts have jurisdiction

over a controversy in which one of the litigants has standing to challenge those acts.” Republic of

Austria v. Altman, 541 U.S. 677, 700 (2004). The party asserting the applicability of the act of

state doctrine bears the burden of proof. See Alfred Dunhill of London, Inc. v. Republic of Cuba,

425 U.S. 682, 694–95 (1976); see also Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir.

1989).

         In Kirkpatrick, the Supreme Court made clear that the act of state doctrine “is not some

vague doctrine of abstention but a ‘principle of decision binding on federal and state courts

alike.’” Kirkpatrick, 493 U.S. at 406 (original emphasis) (quoting Sabbatino, 376 U.S. at 427);

see also Kashef v. BNP Paribas S.A., 2019 WL 2195619, at *4 (2d Cir. May 22, 2019) (“[The act

of state doctrine] is not a categorical rule of abstention that prohibits courts from deciding cases

or controversies whenever issues of foreign relations arise.”). “Act of state issues only arise

when a court must decide—that is, when the outcome of the case turns upon—the effect of

official action by a foreign sovereign.” Kirkpatrick, 493 U.S. at 406 (original emphasis). In

addition, even if the doctrine is technically available, there are instances when “the policies

underlying the act of state doctrine may not justify its application” and it should not be invoked.

Id. at 409; see also Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1072–73 (9th Cir.

2018) (“The Supreme Court has indicated that even when the two mandatory elements [of the act


                                                  13
of state doctrine] are satisfied, courts may appropriately look to additional factors to determine

whether application of the [] doctrine is justified.”). In Sabbatino, the Supreme Court articulated

three possible factors that may weigh against application of the doctrine:

               [T]he greater the degree of codification or consensus concerning a
               particular area of international law, the more appropriate it is for the
               judiciary to render decisions regarding it, since the courts can then
               focus on the application of an agreed principle to circumstances of
               fact rather than on the sensitive task of establishing a principle not
               inconsistent with the national interest or with international justice.
               It is also evident that some aspects of international law touch much
               more sharply on national nerves than do others; the less important
               the implications of an issue are for our foreign relations, the weaker
               the justification for exclusivity in the political branches. The balance
               of relevant considerations may also be shifted if the government
               which perpetrated the challenged act of state is no longer in
               existence . . . for the political interest of this country may, as a result,
               be measurably altered.
Sabbatino, 376 U.S. at 428 (cleaned up).
       The defendant argues that the act of state doctrine bars the Court from adjudicating

plaintiff’s claim, because finding for plaintiff would require the Court to invalidate the license

agreement, within which the government of Afghanistan represented that “it is the rightful and

legal owner of [the property] and has the legal right to enter into this License.” Gov’t Ex. 3.

Defendant contends that, because “a threshold issue in a Fifth Amendment takings case is

whether a plaintiff owns the land allegedly taken,” for the Court to rule for plaintiff, it would

have to invalidate the license agreement. Def. Mot. at 9; Def. Reply at 6.

       The plaintiff responds that the act of state doctrine does not apply, because it “is not

seeking to invalidate the actions of a foreign sovereign.” Pl. Resp. at 6. In addition, the license is

ambiguous as to whether the Afghan government did warrant it owned the land. Id.




                                                   14
        The Court does not decide whether the act of state doctrine applies, because, assuming

that it does, defendant has not met its burden to show that the policies underlying the doctrine

justify its application in this case. See Alfred Dunhill, 425 U.S. at 694–95; see also Nat’l Coal.

Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 350 (C.D. Cal. 1997) (“When

applying the Sabbatino test, the party asserting the applicability of the act of state doctrine bears

the burden of proof.”).

        Sabbatino’s first factor cautions against applying the doctrine when there is a high

“degree of codification or consensus concerning a particular area of international law[,]” so that

a court need not focus “on the sensitive task of establishing a principle not inconsistent with the

national interest or with international justice.” 376 U.S. at 428 (cleaned up). Defendant has

offered nothing suggesting how international law and international justice are implicated by the

Court ruling on a takings claim against the United States by a United States citizen, albeit on

foreign soil.

        Similarly, regarding the second Sabbatino factor, defendant has not shown the

importance of the implications, if any, on United States foreign relations of potentially finding

the license agreement invalid. Indeed, the fact that the license itself contemplates that the

government of Afghanistan “did not have authority to issue this License” in the indemnity

clause, Gov’t Ex. 3, and the alleged fact, which the Court at this stage accepts as true, that the

District Governor verified that plaintiff’s grandfather owned the land in question, Am. Compl.

Ex. A., suggest that potentially finding the license agreement invalid does not have meaningful

foreign policy implications.

        As to the third Sabbatino factor, while the government of Afghanistan is still in existence,

this alone does not warrant applying the act of state doctrine. See Unocal, 176 F.R.D. at 353–54

                                                 15
(finding that, despite the foreign government’s continued existence, “the balance [of the

Sabbatino factors] weighs against invocation of the act of state doctrine”). Because defendant

has failed to prove that “passing on the validity” of the license agreement may “hinder the

conduct of foreign affairs” the Court declines to invoke the act of state doctrine. Kirkpatrick, 493

U.S. at 405 (citations omitted).

           d. Plaintiff has Failed to Plead Ownership of the Disputed Land

       To claim a Fifth Amendment taking, a plaintiff must show “a cognizable property

interest.” Alimanestianu, 888 F.3d at 1380; see also Acceptance Ins. Companies, Inc. v. United

States, 583 F.3d 849, 854 (Fed. Cir. 2009) (“First, the court determines whether the claimant has

identified a cognizable Fifth Amendment property interest that is asserted to be the subject of the

taking.”). “The Constitution neither creates nor defines the scope of property interests

compensable under the Fifth Amendment.” Maritrans Inc. v. United States, 342 F.3d 1344, 1352

(Fed. Cir. 2003). “Instead, ‘existing rules and understandings’ and ‘background principles’

derived from an independent source, such as state, federal, or common law, define the

dimensions of the requisite property rights for purposes of establishing a cognizable taking.” Id.

(quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992)). In this case, the

independent source of law that plaintiff invokes is the law of Afghanistan.

       Rule 44.1 of this Court states, “In determining foreign law, the court may consider any

relevant material or source, including testimony, whether or not submitted by a party or

admissible under the Federal Rules of Evidence. The court’s determination must be treated as a

ruling on a question of law.” RCFC 44.1. The purpose of Rule 44.1 is “to make the process of

determining alien law identical with the method of ascertaining domestic law to the extent that it

is possible to do so.” Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865,

                                                16
1873 (2018) (quoting 9A Alan Wright et al., Federal Practice & Procedure § 2444 (3d ed.

updated Apr. 2019)) (describing the identically-worded Rule 44.1 of the Federal Rules of Civil

Procedure).

         The defendant contests the validity of plaintiff’s property interest in two ways. First,

defendant challenges the validity of plaintiff’s proof of ownership. Gov’t Mot. at 12–15. Second,

defendant challenges the effectiveness of plaintiff’s inheritance agreement with his siblings. Id.

at 15–16. The Court begins with the first issue, plaintiff’s proof of ownership.

         The Court proceeds cautiously, mindful of the fact that it is “very difficult to determine

. . . the legitimate owners of land and property in Afghanistan,” and that “for much of

Afghanistan’s recent history people have had no alternative but to use customary documents to

validate land and property transfers as there has been no functioning official judicial system.”

Conor Foley, A Guide to Property Law in Afghanistan, Nor. Refugee Council, at 34, 36 (2d ed.

2011).

         The Law on Land Management Affairs, revised by the Taliban in 2000 and again by the

government of Afghanistan in 2008, states that seven types of documents may serve as proof of

land ownership: (1) documents of a legal court; (2) a decree issued by the emirate and the prime

ministry, if registered; (3) tax receipts; (4) proof of water rights; (5) customary deeds from before

1975, witnessed before 1978; (6) registered title documents; or (7) title documents obtained by

court order. See id. at 34–36; An Introduction to the Law of Afghanistan, Stan. Afg. Legal Educ.

Project, at 117–18 (3d ed. 2011); Liz Alden Wily, Land Rights in Crisis: Restoring Tenure

Security in Afghanistan, Afg. Res. & Evaluation Unit, at 34, 111–12 (Mar. 2003).




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       The plaintiff has not proffered any document that fits into any of the seven categories

listed above. Instead, plaintiff has submitted two letters from the District Governor: one letter

that purports to verify plaintiff’s grandfather’s ownership of the property, and another that

purports to verify plaintiff’s present-day ownership. Am. Compl. at Ex. A; see also ECF No. 25-

1 (supplemental exhibit). A letter from a District Governor does not constitute proof of land

ownership under the laws of Afghanistan. Consequently, plaintiff has not shown “a cognizable

property interest.” Alimanestianu, 888 F.3d at 1380.

       In an attempt to surmount his lack of legally effective documentation, plaintiff invokes

the prevalence of informal custom in Afghanistan as the predominant means of facilitating land

transactions. Pl.’s Resp. at 9–10. It appears, based on the Court’s research, that plaintiff is correct

that “formal registration and titling has never been widespread.” Erica Gaston & Lillian Dang,

Addressing Land Conflict in Afghanistan, U.S. Inst. of Peace, Special Rep. 372, at 7 (June 2015);

see also Yohannes Gebremedhin, Land Tenure and Administration in Rural Afghanistan: Legal

Aspects, Terra Inst., at 26 (Sept. 2007). Nevertheless, “for the most part Afghan law only

recognizes land ownership based on formal documents.” Gaston & Dang, supra, at 7. The fact

that Afghan property law is rarely followed in certain communities puts plaintiff in an

unfortunate bind, but not the sort of bind this Court is empowered to resolve by disregarding

those laws entirely.

       Because plaintiff has not shown a cognizable property interest, the Court does not need to

address defendant’s argument that the amended complaint fails to meet the specific pleading

requirements of RCFC 9(i), i.e., that a party “must identify the specific property interest alleged

to have been taken.” The Court also does not need to address whether plaintiff’s inheritance




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agreement with his siblings was valid, even though the siblings did not submit their agreement to

a court for approval.

   III.      CONCLUSION

For the above stated reasons, the following is hereby ordered:

          1. Defendant’s motion to dismiss is GRANTED.

          2. Plaintiff’s amended complaint is DISMISSED.

The Clerk is directed to enter judgment accordingly. No costs.

          IT IS SO ORDERED.



                                                    s/ Bohdan A. Futey
                                                    BOHDAN A. FUTEY
                                                    Senior Judge




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