Doe v. United States
95 Fed. Cl. 546
Fed. Cl.2010Background
- Plaintiff, an Iraqi citizen, alleges a Fifth Amendment takings claim arising from USMC occupation of his Fallujah home during the Battle of Fallujah (May–Oct 2004) and a related breach of contract claim.
- Gillette Memorandum notified plaintiff of planned occupation for military necessity; plaintiff and family evacuated; surrounding wall later razed for military reasons.
- The US Commission under the Foreign Claims Act investigated the claim, offering limited compensation; plaintiff rejected the offer and sued in the Court of Federal Claims.
- Plaintiff contends the CPA (a US-led authority) exercised sovereignty in Iraq, creating a unique relationship and substantial US connections to support standing and takings liability.
- Defendant asserts: (a) wartime military actions are nonjusticiable under the takings clause; (b) plaintiff lacks US connections; (c) the destruction was due to combat and military necessity; (d) contract claim lacks mutual assent/authority.
- Court concludes the takings claim is not cognizable under the Fifth Amendment, plaintiff lacks standing, and the contract claim is barred by Totten/Tenet and fails on the merits; subject-matter jurisdiction is dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the court have jurisdiction over the takings claim? | Plaintiff asserts US sovereignty in Iraq and unique US–Iraq ties give standing. | Claims arise in wartime; military necessity and enemy-property doctrines bar takings liability; CPA sovereignty does not confer standing. | No; takings claim not cognizable; no standing; jurisdiction lacks. |
| Can a nonresident alien maintain a Fifth Amendment taking claim for property abroad? | Unique relationship and substantial connections justify standing despite foreign location. | Verdugo-Urquidez substantial-connection test applies; plaintiff fails to show adequate US connections. | No; plaintiff lacks standing. |
| Does the military-necessity doctrine bar the takings claim here? | Military actions not strictly combat or enemy-property can give rise to a takings claim. | Fallujah occupation and wall destruction were necessary military actions; immunity applies to wartime losses. | Yes; military-necessity doctrine bars the takings claim. |
| Does Totten bar apply to the contract claim? | Gillette Memorandum and post-injury interactions confirm a contract; Totten should not bar adjudication. | Totten bars suits premised on secret espionage relationships; alleged contract falls within Totten. | Yes; Totten bar divests court of jurisdiction over the contract claim. |
| Does the contract claim have plausibility beyond Totten? | There was mutual intent, consideration, and authority to bind the government; payments after occupation show partial performance. | No definite terms, no proven actual authority, and Totten precludes merits inquiry. | No; contract claim fails to state a cognizable claim. |
Key Cases Cited
- El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346 (Fed. Cir. 2004) (military necessity vs. civil eminent domain line for takings)
- Caltex (Philippines) v. United States, 344 U.S. 149 (U.S. 1952) (fortunes of war; no liability for destruction of facilities)
- National Board of YMCAs v. United States, 396 F.2d 467 (Ct. Cl. 1968) (military force in combat; destructions not compensable)
- Juda v. United States, 6 Cl.Ct. 441 (Cl. Ct. 1984) (unique relationship concept in Marshall Islands takings)
- Verdugo-Urquidez v. United States, 494 U.S. 259 (U.S. 1990) (limits extraterritorial application of constitutional protections)
- Totten v. United States, 92 U.S. 105 (U.S. 1875) (secrecy of espionage contracts bars enforcement)
- Tenet v. Doe, 544 U.S. 1 (U.S. 2005) (Totten bar applies to secret espionage relationships)
- Boumediene v. Bush, 553 U.S. 723 (U.S. 2008) (extraterritorial sovereignty issues; Guantanamo context)
- Harmony v. United States, 54 U.S. (13 How.) 115 (U.S. 1852) (early precedent on wartime takings and compensation)
- Pacific Railroad Co. v. United States, 120 U.S. 227 (U.S. 1887) (eminent domain vs. war-related destruction context)