A landowner in Afghanistan sued the United States for taking land he allegedly owned for use as a combat base.
Prove you own this land, the Government responded. The first step to doing that is to attach to the complaint documents that make out a prima facie case of ownership. Otherwise, dismissal for failure to state a takings claim (no plausible allegation that the plaintiff owned "property").
The plaintiff complied with the Court of Federal Claims' order for more definite statement and attached to his complaint documents he said showed he owned the property which the U.S. Army used to build Combat Outpost Millett. The CFC concluded these were not good enough under Afghanistan law (specifically, something called the "Law of Land Management Affairs," which the court noted was "revised by the Taliban in 2000 and by the Afghan government in 2008[.]" This law looks for formal registration, which none of the three documents provided by the plaintiff were (they were more about informal customary ownership).
In Sharifi v. United States, No. 19-2382 (Feb. 10, 2021), the Federal Circuit affirmed the dismissal. The court noted that the applicable "independent source" of law recognizing the alleged property right here is the law of Afghanistan. Slip op. at 10. Under Afghan law, "seven types of documents may serve as proof of land ownership[.]" Id. And because none of the three documents the plaintiff attached to the complaint were of these types, "[w]e therefore find Sharifi’s factual allegations about these records insufficient to show he or his grandfather had a cognizable property interest under Afghan law in the allegedly taken land." Slip op. at 10-11.
In short, the court rejected the plaintiff's claim that Afghan law recognizes customary or equitable title in the land. No property alleged, no taking possible.
Sharifi v. United States, No. 19-2382 (Fed. Cir. Feb. 10, 2021)
