Here’s an unusual takings case for you, and a decision that is worth reading, if only for its detail about wartime takings and clandestine contracts with the government. Besides, any court opinion that references “Maxwell’s Smart’s shoe phone” earns a spot on the to-read list, no?
In Doe v. United States, No. _______ (Nov. 22, 2010), the plaintiff, an unnamed citizen of Iraq, sued the federal government seeking just compensation for the occupation of his home by U.S. Marines during the Battle of Fallujah in 2004. The Court of Federal Claims held it had no subject matter jurisdiction over his claims for a taking and breach of contract.
The plaintiff “professes to be a sheik and a man of considerable education and influence.” Slip op. at 3. He asserted that before the Coalition invasion, “authorized representatives of the United States” contacted him and asked him to provide assistance (remember, that when considering a motion to dismiss, the court must take the allegations in the complaint as true). These representatives agreed the U.S. would compensate him for “inconvenience or damage” he might sustain.
During the Battle of Fallujah, U.S. Marines temporarily occupied his home after issuing written notice of “military necessity,” which stated that “[w]e intend to be fair and compensate you for any damages and inconvenience caused by our operation.” Slip op. at 4. He left, and the troops remained for six months, during which time they destroyed the wall around the house in order to “diminish the probability of insurgents using the wall as cover[.]” After the Marines withdrew, others looted and destroyed the house.
The homeowner sought damages in the Foreign Claims Commission of the USMC Multi National Forces, which rejected the amount he claimed because there was no evidence that U.S. forces destroyed or negligently abandone it. It offered him $6,500, but he rejected the offer and filed suit in the CFC, seeking $6 million in inverse condemnation and breach of contract damages. The court noted he asserted “a novel theory to show that he possesses standing to bring a takings claim” —
Plaintiff asserts that “at the time of the alleged taking the Government of Iraq had ceased to exist as a sovereign entity.” Iraqi sovereignty instead was vested in the United States of America through the exercise of sovereign authority “within the territory of Iraq” by the Coalition Provisional Authority (the “CPA”), “a subsidiary entity of the United States Department of Defense.” Because fundamental constitutional rights, including the U.S. Constitution’s Fifth Amendment’s just compensation clause, are “guaranteed to inhabitants of those territories that are not destined for statehood but in which the United States exercises sovereign power,” i.e., unincorporated territories of the United States, plaintiff has standing to bring a takings claim. Further, plaintiff alleges a substantial connection with the United States because of the “unique relationship” created between the United States and Iraq when the “United States (acting pursuant to United Nations mandate) voluntarily created a relationship with the people of Iraq that exceeded in both nature and degree the relationship normally taken with a ‘foreign’ country.”
Slip op. at 6 (citations omitted).
The court rejected the argument that the Commission’s investigation and compensation offer estopped the government from asserting that the occupation of the home was incident to combat and therefore noncompensable. The Commission’s decision did not have a preclusive effect, nor did the plaintiff rely on government misconduct (an essential element of a governmental estoppel claim). Slip op. at 14.
The court also rejected the argument that it was not a “military necessity” for the Marines to occupy the home. The court detailed several very interesting cases regarding wartime takings (slip op. at 16-21), and concluded that the military necessity exception to a takings claim does not require that the taking involve actual combat or the appropriation of enemy property. The court noted that “[t]he Marines who occupied plaintiff’s home were not required to be engaged in an actual fire-fight for the court to find that their occupation was done ‘as an incidental element of defense against hostile attack.'” Slip op. at 26. “Were the court to adopt plaintiff’s theory, it must conclude that, at the time Coalition Forces occupied plaintiff’s property, they were exercising the Government’s civil eminent domain authority.” Id. The court also held that the plaintiff lacked standing, because the United States was not the sovereign authority in Iraq, even though it invaded and toppled the existing government. Slip op. at 31. Iraqi citizens, therefore, could not claim constitutional rights.
Finally, the court rejected the plaintiff’s breach of contract claim for lack of jurisdiction. Under the long-standing doctrine of Totten v. United States, 92 U.S. 105 (1875), a court cannot review a claim the government breached a contract for espionage services, and the CFC held that “[w]hile plaintiff’s complaint and subsequent briefs do not state expressly that espionage was involved, the facts as alleged plaintly indicate that is precisely what plaintiff was asked to do and claims to have done.” Slip op. at 48. It wasn’t so much that the agreement needed to be for spying or that the agreement itself was secret, but that it involved a secret relationship between the contracting party and the United States. The court concluded the facts as acknowledged by the plaintiff showed the Totten bar applied. The unnamed U.S. agents approached him clandestinely to commit treason against the Saddam Hussein regime, and they gave a disposable cell phone for use in contacting them. “A disposable phone may not be as obvious a subterfuge as Maxwell Smart’s shoe phone, but the intent of its use, to allow plaintiff to quickly dispose of any evidence of his contacts with the [deleted], seems obvious.” Slip op. at 49.
Hat tip to Nancie Marzulla for noticing this case.