MEMORANDUM OPINION AND ORDER
Plaintiffs claim for damages from an alleged taking of his property and for breach of contract is before the court after argument and supplemental briefing on defendant’s motion to dismiss under RCFC 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, under RCFC 12(b)(6), for failure to state a claim for relief. A novel takings issue is presented — whether an Iraqi citizen can maintain a Fifth Amendment takings claim for the occupation of his home by the United States military during the Battle of Fallujah, a question that requires a determination as to whether the military necessity doctrine precludes invocation of the Fifth Anendment for a military occupation during wartime and, if not, whether plaintiff can establish the requisite substantial connections with the United States, a prerequisite for a nonresident alien to have standing to allege a taking of extraterritorial property; and, if so, whether plaintiff can bring a claim for inverse condemnation. The contract claim requires resolution of the more straightforward issue of whether plaintiff has alleged the elements necessary to show an express or implied contract with the United States.
FACTS
I. Background
1. The Battle of Fallujah
The following facts reflect documents submitted beyond the original and amended complaints because subject matter jurisdiction is disputed. These facts, material solely to defendant’s motion to dismiss on the merits, are accepted as alleged or averred. This case has its genesis in the United States’ military actions in Operation Iraqi Freedom. On March 19, 2003, President George W. Bush ordered, as part of a multinational force (the “Coalition” or “Coalition Forces”), the commencement of combat operations in Iraq. See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub.L. No. 107-243, § 3(a), 116 Stat. 1498 (granting congressional authorization for President to use armed forces in Iraq); Letter to Congressional Leaders Reporting on the Commencement of Military Operations Against Iraq, 1 Pub. Papers 287 (Mar. 21, 2003). In April 2003 Coalition Forces took control of Baghdad, Iraq’s capital, and the existing government controlled by Saddam Hussein came to an end. By spring 2004 United States and other Coalition Forces were engaged in combat operations against an increasingly violent insurgency.
During Mai’ch 2004 violent attacks against Coalition Forces in Fallujah “rose sharply,” and the city began to fall into the hands of insurgents. Declaration of Lt. Col. Gregory G. Gillette USMC, Feb. 4, 2009, ¶6. On March 31, 2004, an Aneriean contractor’s vehicle was ambushed by insurgents; all four passengers were killed; their bodies, mutilated. Id. In April 2004 Coalition Forces launched an offensive against the insurgency to regain control of the city (the “First Battle of Fallujah”). In the ensuing days of the fight, Coalition Forces were
combating dozens of dispersed hardcore groups of insurgents located throughout the entire city and surrounding area. Insurgents took over businesses, public buildings and occupied private homes, using them to build or store improvised explosive devises and ammunition. In anticipation and prosecution of the battle, insurgents occupied many homes and rigged them with booby traps to kill coalition forces during house to house fighting. Insurgents routinely destroyed homes and used the rubble to impede the flow of Coalition Force vehicles and also used the rubble to fortify their fighting positions.
2. The occupation of plaintiff’s home
[John Doe] (“plaintiff’), an Iraqi citizen, professes to be a sheik and a man of considerable education and influence. In May 2004 plaintiff owned and resided in his home in Fallujah, Iraq. Plaintiff alleges that, at some point prior to the commencement of Operation Iraqi Freedom, he was contacted by “authorized representatives of the United States,” who asked him to “pi-ovide assistance in support of [the United States’] mission in Iraq.” Am. Compl. filed Nov. 16, 2009, ¶ 4. Plaintiff maintains that these representatives were membei’s of the United States [deleted] who conducted “many secret conversations and meetings” with plaintiff. PL’s Br. filed June 21, 2010, at 2.
On May 8, 2004, members of the United States Mai’ine Coi'ps (the “USMC” or “Coalition Foi’ees”), acting in support of Coalition operations, temporai’ily occupied plaintiffs home and associated property (“plaintiffs property”) after issuing a written Memorandum of Record dated May 8, 2004, and signed by then-Major Gregory G. Gillette (“the Gillette Memorandum”). Id. ¶ 5. The Memorandum provided notice of intent to occupy plaintiffs home and stated in full:
Be advised that the Coalition Forces are occupying your house and property without your consent. The Coalition Forces are in your home due to military necessity. We intend to be fair and to compensate you for any damages and inconvenience caused by our occupation. However, you cannot object to the Coalition presence.
Id. Ex. 2. Plaintiff and his family complied with the Gillette Memoi’andum, departed from the house, and took up residence elsewhere. See id. ¶ 5. During the occupation of plaintiffs propei’ty, Coalition Forces razed a wall sui’rounding plaintiffs home. Id. ¶ 7. “The reason given for such destruction was militai’y necessity (i.e., to diminish the probability of insurgents using the wall as cover to fire on Coalition Forces).” Id. Plaintiff maintains that Coalition Forces occupied his property continuously until October, 2004, at which time they vacated the property without notice. Id. ¶ 8. At or near the time Coalition Forces withdrew, the property was attacked, looted, and desti’oyed by unknown persons. Id. ¶ 9.
Plaintiff alleges that the conduct of Coalition Forces constitutes a “taking of property without either due px*ocess or fair eompensa
Plaintiff brought a claim for damages before the Foreign Claims Commission of the USMC Multi National Forces — West for Iraq’s Al Anbar Province (the “Commission”). Pl.’s Br. filed June 21, 2010, Ex. 2. In a letter dated September 4, 2007, a representative of the Commission, Lt. Col. A.G. Peterson, informed plaintiff that he was directed by Brigadier General John R. Allen to “thoroughly investigate[ ] and appropriately eonsider[ ]” plaintiffs claim “under the Foreign Claims Act,” 10 U.S.C. § 2734 (2006). Id. The Commission investigated plaintiffs claim, interviewing plaintiff, his neighbors, and the unit that occupied his home. Id. Lt. Col. Peterson’s letter communicated the result of the Commission’s investigation, as follows:
The destruction of your home and associated property is not in dispute. But after reviewing the materials submitted in support of your claim, the panel considering your claim determined that the evidence you provided fails to support a claim against the U.S. government for the amount you submitted.
Specifically, the panel concluded that, other than the damage to the fence, there is no evidence that: a) U.S. forces destroyed your home and associated property; or, b) U.S. forces negligently abandoned your home, resulting in its destruction and the destruction of associated property. The panel approved a payment for $6,500 ($5,000 to compensate you for your damaged fence and $1,500 to compensate you for the three days in May of 2004 that U.S. forces occupied your property). I have directed that this amount be paid promptly by my representative.
Id. Plaintiff declined the offer and filed suit in the United States Court of Federal Claims.
3. Procedural history
Plaintiffs initial complaint filed on September 24, 2008, sought $6 million in damages sustained because of the expropriation of his property by Coalition Forces. On February 17, 2009, defendant moved to dismiss pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Plaintiff responded on September 30, 2009, and on November 16, 2009, filed Plaintiffs First Amended Complaint. This action mooted the pending motion. See RCFC 15(a)(1)(B). On February 5, 2010, defendant again moved to dismiss pursuant to RCFC 12(b)(1) and RCFC 12(b)(6), to which plaintiff responded on June 21, 2010, and defendant replied on July 12, 2010. Following oral argument on September 2, 2010, the court entered an order on September 16, 2010, requesting supplemental briefing on the precedential impact of Tenet v. Doe,
Plaintiff alleges an inverse condemnation claim against the United States. Am. Compl. ¶ 12. The destruction of plaintiffs property was the “direct, natural or probable result” of defendant’s intentional occupation of plaintiffs home and destruction of his security wall. Id. Because the destruction of the home was reasonably foreseeable once the security wall was destroyed, plaintiff reasons, defendant caused the destruction of his home. “Further, the invasion of the protected property interest appropriated a benefit to the United States at the expense of Plaintiff, at least by preempting the Plaintiffs right to enjoy his property for an extended period of time....” Id.
In his amended complaint and response to defendant’s renewed motion to dismiss, plaintiff advances 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.” Id. ¶ 10. 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.” Id. Because fundamental constitutional rights, including the U.S. Constitution’s Fifth Amendment’s just compensation
Plaintiff also alleges breach of an express or an implied-in-fact contract based on plaintiffs agreement with an “authorized representative of the United States” that, in exchange for his support of United States military action in Iraq, the United States would compensate plaintiff for any inconvenience or damage sustained during such military action. Id. ¶ 13.
Defendant challenges plaintiffs claims on four grounds. First, the Court of Federal Claims lacks jurisdiction to entertain this controversy because losses that occur in combat zones during military conflicts are not justiciable. Second, plaintiff cannot demonstrate the requisite connections to the United States that are necessary for a nonresident alien to bring an extraterritorial takings claim. Defendant disputes the allegation in plaintiffs amended complaint that the United States was a sovereign power in Iraq at the time of the alleged taking and asserts that United Nations (“UN”) resolutions do not impose a specific trust relationship upon the United States. Third, the amended complaint fails to state a viable claim for inverse condemnation because the insurgents were the actual causative agents of the loss of plaintiffs home, the destruction of which plaintiff has failed to demonstrate benefitted the United States. Finally, because plaintiff cannot show mutual intent to contract or establish consideration, plaintiff has “failed to sufficiently allege the required elements of either an express or an implied-in-fact contract with the United States with respect to his house.” Def.’s Br. filed Feb. 5, 2010, at 4. The court considers each of these grounds for dismissal in turn.
DISCUSSION
I. Standards of review
1. Subject matter jurisdiction pursuant to RCFC 12(b)(1)
Jurisdiction must be established before the court may proceed to the merits of a case. Steel Co. v. Citizens for a Better Env’t,
When the movant challenges jurisdiction pursuant to RCFC 12(b)(1) upon the facial sufficiency of the pleadings, the court will accept as true a plaintiffs undisputed allegations of fact, Scheuer v. Rhodes,
In deciding a RCFC 12(b)(1) motion under these circumstances, the court may conduct fact-finding, Moyer v. United States,
2. Failure to state a claim pursuant to RCFC 12(b)(6)
Defendant also moves pursuant to RCFC 12(b)(6) to dismiss the first amended complaint for failure to state a claim upon which relief can be granted. “The purpose of [RCFC 12(b)(6) ] ... is to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail.” Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc.,
In deciding a RCFC 12(b)(6) motion, the court must assess whether the amended complaint adequately states a claim and whether plaintiff can make “allegations plausibly suggesting (not merely consistent with)” a showing of entitlement to relief. Bell Atl. Corp. v. Twombly,
II. Plaintiffs takings claim
1. Takings claim cognizable under the Fifth Amendment
The Fifth Amendment provides, “nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V. The Court of Federal Claims has jurisdiction over claims brought against the United States alleging a taking in violation of the Fifth Amendment. See 28 U.S.C. § 1491(a)(1) (2006) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon the Constitution.... ”). Physical takings occur “ ‘when the government encroaches upon or occupies private land for its own proposed use.’ ” Goodrich v. United States,
First, as a threshold matter, the court must determine whether the claimant has established a property interest for purposes of the Fifth Amendment. “It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.” If the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end.
Second, after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.
Id. at 1372 (citations omitted).
Defendant accepts the assertion of plaintiffs property interest, but disputes this court’s jurisdiction on grounds that “property damage claims arising from military acts during a conflict” are nonjustieiable military acts. Def.’s Br. filed Feb. 5, 2010, at 5 (citing El-Shifa Pharm. Indus. Co. v. United States,
Not all takings claims are cognizable under the Fifth Amendment. In the case of enemy property destroyed by the military, the enemy property doctrine provides that the “United States does not have to answer under the Takings Clause for the destruction of enemy property or ... ‘enemy war-making instrumentalities.’” El-Shifa,
More broadly, the United States Supreme Court counsels that, for losses that occur in wartime or during periods of armed conflict, “many losses must be attributed solely to the fortunes of war, not to the sovereign.” United States v. Caltex (Phil.), Inc.,
However, not all military conduct is shielded from the takings clause’s reach. Indeed, the United States Court of Appeals for the Federal Circuit cautions that the Government may not avoid liability under the takings clause “by simply using its military forces as cover for activities that would otherwise be actionable if performed by one of its civilian agencies. Military conduct that does not touch on the destruction or appropriation of enemy property can sometimes give rise to a valid takings claim.” El-Shifa,
In determining whether a military takings claim is compensable under the Fifth Amendment, “[n]o rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each ease must be judged on its own facts.” Caltex (Phil.),
the sovereign is immune from liability for confiscation of private property taken by [the military], through destruction or otherwise, to prevent it from falling into enemy hands, or to protect the health of troops, or as an incidental element of defense against hostile attack and is not com-pensable under the fifth amendment.
Franco-Italian Packing,
2. Commission’s determination on plaintiffs claim under the Foreign Claims Act
Plaintiff contends that “[mjilitary conduct that is not incident to combat activities by U.S. military forces or that does not touch on the destruction or appropriation of enemy property” is compensable under the takings clause. PL’s Br. filed June 21, 2010, at 40 (emphasis omitted) (citing Argent,
Plaintiff cites no precedent that supports his assertion that the Commission’s investigation of plaintiffs case and offer of compensation under the FCA constitutes a binding admission, or otherwise estops defendant from denying that the occupation of plaintiffs home and subsequent destruction of the surrounding wall were not incident to combat. As defendant correctly points out, “[n]othing within the FCA purports to give the Commission’s findings (or the fact that it considered a case) preclusive findings within any Federal court.” Def.’s Br. filed July 12, 2010, at 8. The fact that the Commission processed plaintiffs claim under the FCA does not constitute a binding admission eon-
The FCA is a grant of discretionary authority to the Executive, see Niedbala v. United States,
3. The military necessity doctrine
Turning to plaintiffs interpretation of the military necessity doctrine, plaintiff argues that “[m]ilitary conduct that is not incident to combat activities by U.S. military forces or that does not touch on the destruction or appropriation of enemy property can give rise to a valid takings claim.”
To support its contention that plaintiffs takings claim is barred by the military necessity doctrine, defendant offers two declara
1) Caselaw dynamics
The parties dispute whether this issue has been addressed directly in prior caselaw so as to dictate an outcome in the present controversy. The following eases impart guidance on the interplay of military takings and the takings clause and, in determining the threshold jurisdictional issue to be decided — whether the actions of the USMC involving plaintiffs property during the First Battle of Fallujah “paint a picture cognizable as a compensable taking under the Fifth Amendment.” El-Shifa,
look to the general principles announced in the decisional law to find the narrow and sometimes indistinct line that separates losses that are necessary incidents of the ravages and burdens of war from those situations where the Government is obliged to pay compensation to the owner of private property that is taken for public use.
Governing precedent from the Supreme Court addressing the question of compensa-bility of military takings is somewhat sparse, but nevertheless illuminating. First, Mitchell v. Harmony,
In United States v. Russell,
In United States v. Pacific Railroad,
The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone, as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss.
Id. at 234,
Similarly, in Juragua Iron Co., Ltd. v. United States,
In Caltex (Philippines),
The Coui’t of Claims consistently has ruled consonantly with these holdings. Among the first decisions was Perrin,
No government, except as a special favor bestowed, has ever paid for the property of even its own citizens in its own country destroyed in attacking or defending against a common public enemy; much less is any government bound to pay for the property of neutrals domiciled in the country of its enemy, which its forces may chance to destroy in its operations against such enemy.
Id. at 547-48. The fact that the claimants were not hostile to the United States was of no consequence. See id. at 548 (“The principle affirmed is, that one who takes up residence in a foreign place and there suffers an injury to his property by reason of belligerent acts committed against that place by another foreign nation, must abide the chances of the country in which he chooses to reside; and his only claim, if any, is a personal one against the government of that country in which his own sovereign will not interest himself.”). As the Perrins’ property was located in a country hostile to the United States, the court designated it as enemy property subject to military destruction and dismissed the complaint. Id. at 548.
Ingenio Porvenir C. Por A. v. United States,
In a general way, the act of taking over the Government of Santo Domingo and all the proceedings thereunder were political matters as to which we have no jurisdiction. Under the Constitution the President is the Commander-in-Chief of the Army and Navy, and this court has no jurisdiction to review his acts in exercising the power so granted in a foreign country and base a judgment thereon. The acts which are claimed to fix a liability on the defendant were done under the orders of the President and occurred in a foreign country. The policy which he adopted and the acts done pursuant thereto were matters of state and wholly within his discretion.
Id. at 739. This holding subsequently was endorsed by the Federal Circuit in El-Shifa. See supra note 3.
Aleutian Livestock Co. v. United States,
In Franco-Italian Packing, the Court of Claims reviewed a takings claim following the seizure of fishing vessels off of the coast of Costa Rica in the days following the Japanese attack on Pearl Harbor.
In National Board of YMCAs,
In American Manufacturers Mutual Insurance Co. v. United States,
2) Application to plaintiffs takings claim
The foregoing precedent establishes that plaintiffs claim does not constitute a compensable taking under the Fifth Amendment. Neither applicable precedent nor the facts of this ease support plaintiffs contention that this claim falls within the particularized category of non-combat-related military takings and, therefore, is cognizable under the Fifth Amendment.
To the extent plaintiff argues that — in order for a military taking to fall outside of the Fifth Amendment — the action must involve either actual combat or the appropriation of enemy property, plaintiff confronts precedent that applies the military necessity doctrine to situations that fairly cannot be described as actual combat. E.g., Nat’l Bd. of YMCAs,
Plaintiff cites to Mitchell v. Harmony and United States v. Russell for the proposition that, “[i]f there is no military necessity at the time of the taking or if the military necessity ceases to exist and the taking continues, the Fifth Amendment requires that the United States pay fair compensation.” PL’s Br. filed June 21, 2010, at 40-41 (emphasis omitted). Putting aside that neither case provides any support for such an assertion, they are both among the few cases that permit compensation for military takings occurring during a time of conflict or war. See Harmony,
Other than asserting that the FCA determination letter establishes that the alleged taking was not caused by combat activities or by an enemy, which the court already has rejected, plaintiff has produced no evidence substantiating his claim as a compensable military taking.
Similar to the conditions encountered by U.S. forces in National Board of YMCAs, the Marines in Fallujah were confronted “with a large and hostile force under conditions presenting immediate danger to them.”
In the urban combat situation confronting USMC forces at Fallujah, insurgents were not located in one isolated area, but were dispersed into groups throughout the city. Insurgents used public buildings and private homes to store improvised explosive devises (“IEDs”) and set booby traps. Gillette Declaration ¶ 7. The Marines who occupied plaintiffs 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.” Franco-Italian Packing,
Were the court to adopt plaintiffs theory, it must conclude that, at the time Coalition Forces occupied plaintiffs property, they were exercising the Government’s civil eminent domain authority. As explained by the Federal Circuit in El-Shifa, compensable military takings under the Fifth Amendment occur when “the military merely carries out the sovereign’s eminent domain prerogative,”
Accordingly, the court concludes that occupation of plaintiffs home and the destruction of his wall by Coalition Forces were “exercises of sovereign powers not constituting appropriations of plaintiffs property for public use.” Franco-Italian Packing,
Alternatively, defendant challenges plaintiffs standing to bring a takings claim, contending that a foreign national cannot bring a takings claim for property located abroad unless he demonstrates a substantial connection to the United States. To resolve this issue, the court must determine “whether a foreign citizen with no connections to the United States has a right to just compensation under the Fifth Amendment for a taking of property that occurs in a foreign country.” Atamirzayeva v. United States,
1) Standards applicable to standing to purstte takings claim
The Constitution is subject to territorial limitations. Atamirzayeva,
Plaintiff responds that the substantial connections test is inapplicable to his claim because the United States exercised sovereign power in Iraq at the time of the alleged taking and, as such, fundamental constitutional rights, including rights guaranteed by the Fifth Amendment’s takings clause, extend to any territory in which the United States exercises such sovereignty. In the alternative, plaintiff argues that he has sufficient contacts with the United States because the United States had a “unique relationship of trust and responsibility to the people of
2) Unique relationship between the United States and Iraq or the United States and plaintiff
According to plaintiff, at the time of the alleged taking, sovereign power vested in the CPA, which, plaintiff asserts, was a “subsidiary entity of the United States Department of Defense.” Pl.’s Br. filed June 21, 2010, at 8.
Plaintiff also contends that he is not required to meet the substantial connections test because the United States created a “unique relationship” with the people of Iraq when it exercised sovereign authority over Iraq. Plaintiff cites Juda v. United States,
Defendant also rejects plaintiff’s assertion that Iraqi citizens enjoy full constitutional protections because the United States exercised sovereign authority over Iraq. Any actions of the United States military in Iraq were taken “pursuant to the United States’ relationship initially with the [CPA] and then with the Iraqi Interim Government.” Id. at 14-15. Defendant cites to language in Resolution 1483 that reaffirmed “the sovereignty and territorial integrity of Iraq,” S.C. Res. 1483, at 1, U.N. Doc S/RES/1483 (May 22, 2003), and its recognition that the nations comprising the CPA acted as “occupying powers under unified command,” id. at 2; see also Def.’s Br. filed Feb. 5, 2010, at 15. Also, in May 2003 President Bush officially recognized Iraq’s sovereign immunity, prohibiting suits against Iraq in U.S. federal court, see 68 Fed.Reg. 26,459 (May 7, 2003) (suspending sanctions on Iraq and making inapplicable certain statutory provisions related to Iraq), an action affirmed by the Supreme Court in Republic of Iraq v. Beaty, — U.S. -,
Plaintiff cannot overcome the weight of law against the propositions that the United States was the sovereign in Iraq or that Iraq was an unincorporated territory of the United States at the time of the occupation of his house. First, plaintiff does not rely on any precedent, or even a single ease, that establishes that the United States acquires de jure sovereignty over a country because United States military forces temporarily occupy it, even if those forces exercise some form of governmental authority during that time. Plaintiff ignores Johnson v. Eisentrager,
acquire territory by discovery, by agreement or treaty, and by conquest. It cannot also be gainsaid that, as a general rule, whenever a government acquires territory as a result of any of the modes above stated, the relation of the territory to the new government is to be determined by the acquiring power in the absence of stipulations upon the subject.
Downes v. Bidwell,
Furthermore, the decisional power concerning the exercise of sovereignty over a territory of the United States, incorporated or unincorporated, is a function that the U.S. Constitution grants solely to Congress. See U.S. Const, art. IV, § 3, el. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States.”); Boumediene v. Bush,
In Boumediene, trumpeted by plaintiff, Justice Kennedy distinguished between de jure and de facto sovereignty, explaining that “it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another.”
The Court in Boumediene rejected the Government’s argument that, “as applied to noncitizens, the Constitution necessarily stops when de jure sovereignty ends,”
Unlike the unique “complete jurisdiction and control” exercised by the United States over Guantanamo Bay — which is provided for by treaty — or other United States territories, at no time was Iraq “acquired” by the United States or any of its Coalition partners. Id. at 755,
In fact, defendant points to actions taken by the United States that persuasively demonstrate that neither Congress nor the President ever intended the United States to exercise sovereign power in Iraq. In April 2003 Congress enacted the Emergency Wartime Supplemental Appropriations Act, Pub.L. No. 108-11, § 1503, 117 Stat. 559, 579 (2003) (the “EWSAA”), which authorized the President to waive any application to Iraq of the exception to the Foreign Sovereign Immunity Act’s, 28 U.S.C. §§ 1602-11 (2006), grant of sovereign immunity for lawsuits in federal court for state sponsors of terrorism, id. § 1605(a)(7). President Bush exercised that authority in May 2003. See 68 Fed.Reg. 26,459. In Beaty the Supreme Court explicitly recognized the effect of the legislation when President Bush exercised his authority thereunder to make § 1605(a)(7) inapplicable to Iraq — namely, the full restoration of Iraq’s sovereign immunity.
Plaintiff characterizes defendant’s argument that the EWSAA waiver evidences the United States’ intent to recognize the sovereignty of Iraq as a “non sequitur.” Pl.’s Br. filed June 21, 2010, at 14. Plaintiff advances the notion that the EWSAA waiver “appears to be an essential element of a U.S. plan to effectuate unfettered control over Iraqi sovereignty,” id. at 15, because at the time the President issued the waiver the “United States was the sovereign government of Iraq,” id. at 14 (emphasis omitted). In other words, plaintiff offers — as evidence that the United States exercised sovereignty over Iraq — a law passed by Congress and implemented by the President that reinstated Iraq’s sovereign immunity from suits in a United States federal court. It is plaintiffs construction of the EWSAA and Beaty that constitutes a non-sequitur, and a significant one. If plaintiffs theory were correct and the United States was, through the CPA, exercising sovereign authority over Iraq at that time, reinstating Iraq’s sovereign immunity would be redundant. The Supreme Court’s construction of the EWSAA in Beaty forecloses this possibility. See
First, Juda does not stand for the broad proposition that an exercise of sovereign power by the United States in a foreign jurisdiction occupied pursuant to a UN resolution creates a “unique trust relationship,” thereby extending to that jurisdiction fundamental constitutional rights. See Pl.’s Br. filed June 21, 2010, at 15, 17-19. Plaintiffs contention that “[tjhere is no meaningful distinction between the facts in Juda and those presented in the instant case,” is belied by what that lengthy opinion actually says, id. at 24. Second, as a decision of the United States Claims Court, Juda may be persuasive, but it is not binding precedent on the Court of Federal Claims. See Coltec Indus., Inc. v. United States,
The court in Juda considered a takings claim brought by residents of the Marshall Islands. See
Until Congress shall further provide for the government of the Trust Territory of the Pacific Islands, all executive, legislative, and judicial authority necessary for the civil administration of the Trust Territory shall continue to be vested in such person or persons and shall be exercised in such a manner and through such agency or agencies as the President of the United States may direct or authorize.
48 U.S.C. § 1681(a). In 1969 the United States and the inhabitants of the Trust Territories began negotiations to establish constitutional self-government. Juda,
The takings claim at issue in Juda had its genesis in the destruction of several of the Marshall Islands following a series of nuclear' tests during the Cold War’s infancy. Judge Harkins explained the utter devastation wrought by the nuclear testing:
The United States detonated 23 hydrogen and atomic bombs on Bikini Atoll between June 30, 1946, and July 22, 1958. Two tests were air drops, two devices were detonated under water, and other devices were detonated on anchored barges. The nuclear tests caused severe destruction. Radioactive mud was dumped on the islands and into the lagoon; coral, algae and shellfish on the reef were destroyed; and some of the islands were annihilated. In 1956, the Atomic Energy Commission (AEC) reported that all of the islands had received in varying degrees the resultant radioactive fusion and activation products.
Id. at 447. Consequently, the inhabitants of these islands had to be removed and permanently resettled. Judge Harkins described other effects of the testing: “permanent resettlement with substantial relocation hardships of some inhabitants; exposure to high levels of radiation of some inhabitants; and widespread contamination from radioactivity that renders some islands unusable by man
During the course of the program to test atomic weapons, the United States created a relationship with plaintiffs that exceeded in both nature and degree the relationship normally taken with a “foreign” country or by a trustee charged to protect the inhabitants against the loss of their lands and resources and to protect their health. The United States has accorded the people of the Marshall Islands benefits which far surpass the benefits normally extended to citizens of foreign nations. In addition, in 48 U.S.C. § 1681, Congress has acted with respect to these plaintiffs and their rights. Congress has ratified the powers conferred upon the President and the actions taken to administer the Trust Territory.
Id. at458.
Nothing in Judge Harkins’ reasoning leads to the conclusion that the Fifth Amendment extended to the Marshall Islands because the United States “exercised comprehensive sovereignty over the occupied territory and thereby created a unique relationship between itself and the occupied territory.” Pl.’s Br. filed June 21, 2010, at 24. Indeed,
Plaintiff has failed to articulate any congressional action taken to bestow the Iraqi people with “benefits” that are comparable to those listed in Juda or that are not otherwise unique in relation to other foreign powers. The use of force in Operation Iraqi Freedom is not remotely comparable to the atomic weapons testing that is the heart of Juda. Plaintiffs central argument that “the Juda court determined that the United States had exercised sovereign power over the Marshall Islands and thereby extended to its inhabitants the protections of the Takings Clause” is simply wrong. Pl.’s Br. filed June 21, 2010, at 16. The court in Juda was careful to explain that its holding was not based on any exercise of sovereign power. See Juda,
3) Substantial connection to the United States
The United States’ purported exercise of sovereignty over Iraq does not create a unique relationship between either the United States and Iraq or the United States and plaintiff, and it does not grant plaintiff standing to bring his takings claim in the Court of
Plaintiff vouchsafes in his post-argument affidavit that the following events — unconnected to the occupation of his home — establish his connections with the United States: (1) A [deleted] (known as “Mr. [deleted]” and operating out of the [deleted]) telephoned plaintiff and then later met with plaintiff to recruit his help prior to the commencement of Operation Iraqi Freedom, Pl.’s Br. filed June 21, 2010, at 28-29; Mr. [deleted] promised that the United States would compensate plaintiff for his assistance and make him whole for any damages he sustained, id. at 29; (2) following the invasion and establishment of the CPA, from 2003 through 2004, plaintiff had meetings in Iraq with [deleted]; during one meeting Mr. [deleted] gave plaintiff [deleted] to use in support of the United States, and, at some point in 2004, Mr. [deleted] advised plaintiff and his [deleted] to flee immediately due to death threats made against plaintiff by A1 Qaeda, id. at 29; and (3) from 2004 through 2008, plaintiff met with “many different [deleted] officers and embassy officials in [deleted],” who paid plaintiff [deleted] for his assistance, and, in 2007, the United States sent a letter to [deleted] authorities requesting that plaintiffs [deleted], id. at 29-30. See [Doe] Aff. ¶ 2 (averring as fact assertions of counsel in plaintiffs reply brief); see also supra note 1.
Plaintiff also argues that the circumstances involved in the alleged taking reinforce his connections with the United States. According to plaintiff, the Gillette Memorandum manifests “Defendant’s intention to voluntarily establish an ongoing interaction with Plaintiff.” Pl.’s Br. filed June 21, 2010, at 30. Finally, plaintiff proposes that the fact that his claim was processed under the FCA shows defendant’s “continued ... extensive voluntary contacts” with plaintiff. Id.; see also [Doe] Aff. ¶ 2.
Taking all of these pieces into consideration, the court concludes that the circumstances that underlie plaintiffs takings claim do not satisfy the Verdugo-Urquidez substantial connections test. Otherwise, the test would be “eviscerated” because “all alien plaintiffs asserting a takings claim would necessarily meet it.” Def.’s Br. filed July 12, 2010, at 16. Plaintiff must show connections to the United States independent of his claim. The text of the Supreme Court’s opinion in Verdugo-Urquidez supports this ruling.
In Verdugo-Urquidez the Court held that the Fourth Amendment’s prohibition against unreasonable searches did not apply to the warrantless search by agents of the United States Drug Enforcement Administration (the “DEA”) of properties located in Mexico and owned by Mr. Verdugo-Urquidez, a Mexican citizen, after Mr. Verdugo-Urquidez had been charged by the United States for various narcotics trafficking offenses.
The Court held that Mr. Verdugo-Urqui-dez “had no previous significant voluntary
In Atamirzayeva,
First, the corporation had been formed by two United States citizens. Second, the corporation received its ownership interest in the surplus property by assignment from those United States citizens. Third, after liquidation of the corporation, a United States citizen was appointed as the liquidating trustee and the plaintiff in the Court of Claims action.
Id. The Federal Circuit contrasted these connections to those of the plaintiff in Atamir-zayeva, noting that she had not “pleaded any relationship, business or otherwise, with the United States. As pleaded, her only connections with the United States are that her cafeteria was adjacent to the U.S. Embassy and that embassy officials directed the seizure.” Id.
Based on the foregoing analysis, the court concludes that, assuming the truth of plaintiffs assertions regarding his contacts and payments by [deleted], they are not sufficient to establish plaintiffs substantial connections to the United States. Plaintiff is a nonresident alien who alleges a taking without compensation of property located in Iraq by the United States military. In order to have standing to bring such a claim in federal court, plaintiff must establish that he has come within the territory of the United States and developed substantial connections to this country, which he has not perfected. Accordingly, plaintiff lacks standing to bring his Fifth Amendment takings claim.
Plaintiff alleges breach of an express or an implied-in-fact contract based on his purported agreement with an “authorized representative of the United States” that, in exchange for his support of United States military action in Iraq, the United States would compensate plaintiff for any inconvenience or damage sustained during such military action. Am. Compl. ¶ 13. Plaintiff contends that he accepted this offer and acted to support the United States in Iraq.
Defendant seeks dismissal of Count II of plaintiffs amended complaint alleging breach of contract under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. According to defendant, plaintiff failed to allege the elements of either breach of an express or an implied-in-fact contract. No mutual intent to contract with the United States was pleaded, and an ambiguous promise of future compensation cannot suffice to establish consideration. Also, defendant advances that plaintiff cannot establish that the alleged “authorized representatives” of the United States possessed actual authority to bind the United States. Def.’s Br. filed July 12, 2010, at 20.
Plaintiff rejoins that his allegations of partial performance by the United States on its agreement with plaintiff are sufficient evidence that government agents possessed actual authority to contract on behalf of the Government. Specifically, plaintiff cites Mr. [deletedj’s warning to plaintiff and his [deleted] about the A1 Qaeda threat against them; the [deleted] payments made to plaintiff; and a letter sent in 2007 by the United States to [deleted] authorities requesting an [deleted]. See PL’s Br. filed June 21, 2010, at 52-53.
1. The Totten bar
In 1875 the Supreme Court issued the clarion call that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States,
The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood that the lips of the other were to be for ever [sic] sealed respecting the relation of either to the matter. This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its*579 public duties, or endanger the person or injure the character of the agent.
Totten,
The Court in Tenet v. Doe,
Consequently, because the court’s jurisdiction depends on the result of its Totten analysis, the court must proceed with this analysis before proceeding to defendant’s RCFC 12(b)(6) motion, which goes to the merits of plaintiffs contract claim. “It is firmly established ... that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.” Steel,
Plaintiff stresses that he does not allege that the contract was for espionage or intelligence services. Rather, he “merely ... agreed to provide assistance in support of Defendant’s mission in Iraq.” Id. at 2. “Although the Government representatives are alleged to have been [deleted] and the meetings alleged to have been conducted in secret, there is no allegation that the contract was secret or that the services ... implicated in any way issues of state secret.” Id. at 3 n. 2. Plaintiff states that it would be “inappropriate to simply assume that the alleged ‘support and assistance’ necessarily involve[] matters of state secret.” Id. at 4.
Plaintiff misses the point of Totten. The “secret” at issue in a Totten analysis is not the terms of the alleged contract. Rather, the Totten bar seeks to shield the fact of the alleged relationship between the putative plaintiff and the Government. See Tenet,
Plaintiffs complaint states that he reached an agreement with “authorized representatives of the United States ... prior to the initiation of Operation Iraqi Freedom and requested that [he] provide assistance in support of its mission in Iraq.” Am. Compl. ¶ 4 (emphasis added). Prior to Operation Iraqi Freedom, Iraq was ruled by the spectacularly predatory dictator Saddam Hussein and his malevolent sons. Plaintiff alleges that the [deleted] asked for his “assistance in support of its mission in Iraq.” Id. Yet, the “mission in Iraq” involved deposing the Hussein regime—plaintiff was asked to commit treason against the Iraqi government by assisting that government’s enemies to prepare for war against it. See Am. Compl. ¶ 4 (“The United States agreed that, in exchange for this support and assistance, it would compensate [p]laintiff ... in the forthcoming military action.” (emphasis added)). The idea that, during this time, an Iraqi citizen who was a “prosperous, well-educated and influential man,” id., who possessed a “unique status,” id., in his community would be openly approached by agents of the United States is preposterous.
Whether plaintiff characterizes these activities as espionage, they involved the kind of clandestine activities to which the Totten bar is intended to apply. See Totten,
Other facts alleged by plaintiff demonstrate that the contract was for clandestine activities. Prior to the invasion, [deleted] provided plaintiff with a “throwaway cell phone” to use in contacting them. PL’s Br. filed June 21, 2010, at 28-29. 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. Plaintiff describes the meetings they engaged in as “secret face-to-face meetings.” Id. at 29. Plaintiff agreed to provide “information, insight, cooperation and assistance” in connection with the upcoming invasion. Id. Following the invasion, plaintiff continued to meet, in secret, with other [deleted] in Iraq, [deleted], and [deleted]. Id. at 29-30. It seems counterintuitive for [deleted] to engage in secret meetings if the meetings were held pursuant to a contract, or at least a relationship with plaintiff, that was not a secret, or to put it another way, did not involve “matters which the law itself regards as confidential.” Totten,
More critically, the [deleted] who allegedly contacted plaintiff used false names. See Pl.’s Br. filed June 21, 2010, at 52 (“The people who made the agreement on behalf of Defendant were [deleted] who intentionally sought to obscure their identities, capacities, authorities and bona fides.”). The court agrees with defendant that further judicial proceedings, including discovery and trial, open the door to the possibility that “these surreptitious persons may be called to establish the terms of the contract.” Def.’s Br. filed Sept. 27, 2010, at 5. A trial involving such a claim is fraught with the potential that confidential state matters would be made public. This is sufficient to implicate “Tot-ten’s core concern ... preventing the existence of the plaintiffs relationship with the Government from being revealed.” Tenet,
Plaintiff alternatively claims that, to the extent plaintiffs agreement with [deleted] or its terms were ever a secret, the Totten bar is waived because the Gillette Memorandum evinces the Government’s voluntary election to “overtly acknowledge its relationship” with plaintiff and the terms of his compensation. PL’s Br. filed Sept. 28, 2010, at 4; see also supra note 26. At argument defendant countered that the Gillette Memorandum “should not be read in conjunction with any alleged contract, because [the memorandum] says you cannot object,” nor does it make reference to any other contract. Tr. at 85. For the following reasons, the court agrees with defendant’s assessment.
Were the court considering a motion to dismiss on the merits, the court would draw all reasonable inferences in plaintiffs favor. Cary,
[T]his is a circumstance [i.e., the damage to plaintiffs property] which the Government could have avoided entirely had they used the communication that they had ongoing with [plaintiff] already. The brief reports that [plaintiff] was evacuated by the United States to [deleted] on the basis of [deleted], where he was seen to be a target for assassination, and they got him into [deleted] for safekeeping. Had the Americans in the same process had said, oh, by the way, my left hand just left your house, then [plaintiff] who has an ongoing relationship with the United States, in which they are talking regularly, and they are. giving him money regularly, would have been in a position to avoid the effect of losing his security system. They didn’t do that.
Tr. at 70-71. Were the case in a posture to take plaintiffs statements as true, the only logical inference that could be drawn is that plaintiff was not informed that the U.S. military forces left his property because they were not aware of his relationship with the [deleted]. In other words, as plaintiff states, the left hand was not telling the right hand what it was up to. The effect of plaintiffs current location only bolsters defendant’s claim that plaintiffs relationship with the [deleted], if it existed, was itself a secret. Viewed in this light, no possibility exists that the Gillette Memorandum was a written confirmation of the Government’s oral contract, much less a waiver of the Totten bar.
Based on the foregoing, the court concludes that plaintiffs alleged agreement and subsequent relationship with United States intelligence operatives were covert. Totten therefore divests this court of its subject matter jurisdiction over plaintiffs claim. See Tenet,
2. Plaintiffs claim for breach of an express or implied contract
“In the absence of factual disputes, the question of contract formation is a question of law....” Trauma Serv. Grp. v. United States,
In order to maintain a claim based on either an express or an implied-in-fact contract with the United States, plaintiff must show: “(1) mutuality of intent to con-t2*aet; (2) consideration; (3) an unambiguous offer and acceptance; and (4) actual authority on the part of the government’s representative to bind the government.” Flexfab, L.L.C. v. United States,
1) Actual authority
To succeed on a contract claim against the United States, it is not sufficient for plaintiff merely to assert that he entered into a contract with the United States. Plaintiff must plead facts sufficient to allege that the Government agent had actual authority to bind the Government to a contract. Harbert/Lummus Agrifuels Projects,
To the extent that plaintiff alleges a contract claim, taking into consideration the extreme difficulties in accurately identifying the identities of the government agents with whom plaintiff alleges he contracted, the court concludes that, by alleging their first names, plaintiff has alleged with sufficient specificity their identities. Cf. Sartori v. United States,
“Although apparent authority will not suffice to hold the [Government bound by the acts of its agents, implied actual authority, like expressed actual authority, will suffice.” H. Landau & Co. v. United States,
Assuming, arguendo, that plaintiff can establish a contract with the [deleted], the central issue remains whether the [deleted] or other government agents identified by plaintiff had “actual authority to contract in the manner [they] did.” Monarch Assurance P.L.C., v. United States,
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Id. (citing Twombly,
Plaintiff has pleaded no facts that could lead the court reasonably to infer that these operatives had authority to bind the United States. Plaintiff protests that doing so “is no easy task,” because the operatives “intentionally sought to obscure their identities, capacities, authorities and bona fides.” PL’s Br. filed June 21, 2010, at 52. Moreover, plaintiff argues that defendant “should not be permitted to avoid agreements that are within the authority of its intelligence professionals simply because ... a plaintiff cannot ... plead the details of their authorities.” Id. That said, neither should a plaintiff be allowed to benefit by holding him to a lesser pleading standard than every other litigant in federal court. Plaintiff’s averment that the agents were “authorized representatives of the United States,” Am. Compl. ¶ 4, is not sufficient for the court reasonably to infer that these agents possessed authority to bind defendant to a contract that, by its alleged terms, was for a potentially unlimited amount and duration.
2) Definite terms and consideration
For an alleged contract with the United States to be enforceable, the terms of the contract must be sufficiently definite, i.e., the terms must be clear enough to permit a determination of breach and remedies. Modern Sys. Tech. Corp. v. United States,
The absence of sufficiently definite terms will defeat a claim for contractual relief. See United Pac. Ins. Co. v. Roche,
The court concludes that the amended complaint fails to state a claim for an express or implied-in-fact contract on the alternative ground that the complaint fails to allege facts tending to show sufficiently definite terms or the existence of consideration. Plaintiff alleges that he accepted an offer made by [deleted] that “in exchange for [plaintiffs] support and assistance, [the United States] would compensate [p]laintiff for any inconvenience or damage he sustained in
In addition, plaintiffs allegation that the contract specified only that plaintiff would be “compensated” does not meet the pleading requirement of definite terms. Plaintiff does not specify how the Government would compensate plaintiff, or whether there was any ceiling on the amount of compensation. For example, in response to defendant’s motion to dismiss, plaintiff alleges that Mr. [deleted] gave plaintiff [deleted] “to use in connection with activities conducted by Plaintiff on behalf of Defendant,” Pl.’s Br. filed June 21, 2010, at 29, and that, from 2004 through 2008, the Government paid plaintiff [deleted] “in partial performance of its contract,” id. at 29-30. Was any part of the [deleted] entrusted to plaintiff a payment for plaintiffs services? Did the government [deleted] who made the [deleted] payments to plaintiff consider those payments to satisfy any government obligation? As pled, the terms of the alleged contract are insufficiently definite as to whether the Government breached its promise or, in the event the court found a breach, to fashion an adequate remedy. In short, plaintiff has not pled a contract.
CONCLUSION
Accordingly, based on the foregoing,
IT IS ORDERED, as follows:
1. Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted. The Clerk of the Court shall dismiss the amended complaint without prejudice for lack of subject matter jurisdiction.
2. By November 10, 2010, the parties shall identify by brackets any material subject to redaction before the opinion issues for publication.
No costs.
Notes
. On September 23, 2010, plaintiff filed a motion for leave to file an affidavit supplementing his response to defendant’s motion to dismiss plaintiff's amended complaint. See Pl.'s Br. filed Sept. 23, 2010, ¶2. Plaintiff’s supplemental affidavit attests that the facts asserted in his response to defendant's motion to dismiss are within his personal knowledge and are true and correct. See Affidavit of [John Doe], Sept. 21, 2010, ¶2. By order entered on September 27, 2010, the court expedited briefing, and defendant filed its opposition on September 29, 2010. By order entered on September 30, 2010, the court granted plaintiff’s motion "only insofar as the affidavit relates to the facts pleaded in ¶¶ 4, 6, and 13 of Plaintiff's First Amended Complaint.” Order entered Sept. 30, 2010, at 2. The court explained its reasoning, as follows:
The facts to which Mr. [Doe] attests are those put in issue by footnote 4 and pages 19-20 of defendant’s reply brief filed on July 12, 2010. These were the facts discussed by counsel and the court during argument. See Transcript of Proceedings, [Doe] v. United States, No. [deleted], at 27-28, 30, 69-70, 80, 83-84, 90-92 (Fed.Cl. Sept. 2, 2010).
However, although defendant's objections are well taken, the court deems it in the interests of full and fair consideration of the amended complaint that plaintiff's factual assertions concerning contacts between the [deleted] and him are considered in opposition to defendant's motion to dismiss.
Id. at 1.
. Defendant argues that these standards somehow implicate the justiciability of claims for military takings that occur in wartime or in a hostile environment. The court disagrees. As will be discussed in greater detail below, these cases stand for the proposition that the sovereign is immune from claims for takings occurring during wartime or that are rooted in military conflicts, including both the enemy property and military necessity doctrines. As such, they do not constitute claims cognizable under the Fifth Amendment. The only decisions cited by defendant that dismiss claims on justiciability grounds do so because the claims presented political questions. See, e.g., El-Shifa,
Ingenio Porvenir was decided over thirty years before Balter v. Cair, the Supreme Court’s landmark case involving the political question doctrine. See Baker v. Carr,
. The Foreign Claims Act provides, in pertinent part:
(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint ... one or more claims commissions ... to settle and pay in an amount not more than $100,000, a claim against the United States for—
(1)damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy;
if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces.... In this section, "foreign country" includes any place under the jurisdiction of the United States in a foreign country....
(b) A claim may be allowed under subsection (a) only if—
(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat....
10 U.S.C. § 2734.
. Plaintiff’s citation to Cary presumably refers to the legal standard applicable to appellate review of a judgment entered on the pleadings and pursuant to RCFC 12(c), which is the same standard that the court applies to a case dismissed pursuant to Fed.R.Civ.P. 12(b)(6), whereby the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary,
.Defendant argues that the FCA empowers only the Executive Branch, rather than the Judicial Branch, with authority to compensate foreign citizens as part of the Executive's management of foreign relations. See Def.'s Br. filed July 12, 2010, at 7-8. This implicitly supports defendant's argument that this matter is a nonjusticia-ble political question. See id. at 8; Transcript of Proceedings, [Doe] v. United States, No. [deleted] at 7 (Fed.Cl. Sept. 2, 2010) ("Tr."). Defendant cites as support for its position the United States Supreme Court’s statement in Harisiades v. Shaughnessy,
any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.
Id. at 588-89 (holding that deportation of three resident aliens due to membership in Communist Party prior to enactment of Alien Registration Act of 1940 § 23, 8 U.S.C. § 137 (1946) (repealed 1952), did not violate Due Process Clause). However, as with the other cases cited by defendant, see supra note 2, issues implicating the political question doctrine must be resolved under the Baker framework, which is not necessary because the court has already concluded that the takings clause issue relevant to this case directly implicates the court's subject matter jurisdiction, without considering the political question doctrine.
. Defendant disputes die applicability of the FCA because the FCA is a discretionary grant of authority to pay a claim and therefore is not a money-mandating statute. Def.’s Br. filed July 12, 2010, at 7 (citing Niedbala,
. Plaintiff impliedly concedes that, should the court find that plaintiff's property was "enemy property,” he would not have a takings claim. However, he disputes diat his property was “enemy property.”
. However, Justice Field proceeded to limit the doctrine’s applicability in cases where "property of loyal citizens is taken for the service of our armies, such as vessels, steamboats, and the like, for the transport of troops and munitions of war, or buildings to be used as store-houses and places of deposit of war material, or to house soldiers or take care of the sick, or claims for supplies seized and appropriated. In such cases it has been the practice of the government to make compensation for the property taken.” Id. at 239,
. The court also discussed the authority of officers to make offers to compensate for losses. See
. National Board of YMCAs does not concern enemy property, nor a military taking during wartime. The case leaves open the possibility that a takings claim may be maintained for "requisitioning or takings [of] plaintiff’s buildings to house soldiers.” Id. at 473-74. Moreover, the court’s statement that ”[i]t is axiomatic that the fifth amendment is not suspended in wartime” contradicts defendant’s blanket proposition that cases are not reviewed arising out of military actions during wartime. Id. at 470. The court concluded its analysis of military takings caselaw by explaining that "the decisions have rather consistently placed on the opposite sides of that line a temporary occupancy of private property which is immediately necessary for the safety of troops or to meet an emergency threatening great public danger and a voluntary appropriation of private property under conditions where there is no compulsive use or occupancy in the face of imminent danger.” Id. at 472.
. Plaintiff cites Argent,
. Additionally, at oral argument on September 2, 2010, plaintiff invoked Grant v. United States,
Plaintiff’s reliance on Wiggins and Grant is misplaced. It is not necessary to discuss these two Civil War ear cases in detail except to note that whatever precedential impact these cases might have had was abrogated by the Supreme Court in Caltex (Philippines),
. But see Seery v. United States,
. Plaintiff also alleges that, at the time of the taking, the "United States was subject to a United Nations mandate to promote the welfare of the people of Iraq. This mandate created legal duties requiring the United States to compensate Plaintiff for any damages and inconvenience caused by its occupation of his property.” Pl.’s Br. filed June 21, 2010, at 6-7. Plaintiff points to the Gillette Memorandum as evincing that the United States accepted this mandate. Id. at 7. Assuming, arguendo, that plaintiff’s argument is correct, it does not follow that this United Nations mandate negates the military necessity doctrine.
. Alternatively, defendant invokes the enemy property doctrine to charge that, regardless of whether the occupation could be fairly categorized under the military necessity doctrine, plaintiff’s claim is still precluded as his property is "enemy property” for purposes of the takings clause. Under Perrin and its progeny, defendant contends that, enemy property encompasses “all property held by a foreign citizen in a foreign country, regardless of the loyalties of the citizen.” Def.’s Br. filed July 12, 2010, at 3 (citing Perrin,
Without discussing a single case cited by defendant, or squarely addressing the scope of the enemy property doctrine, plaintiff rejoins that the Fifth Amendment is not suspended in wartime and, therefore, defendant's characterization of plaintiff's property as enemy property is incorrect. Defendant made no showing that the Coalition Forces's occupation of the property and destruction of the wall "were incident to combat activities of U.S. military personnel in that place and at that time." Pl.’s Br. filed June 21, 2010, at 6 (emphasis added).
Had the destruction of plaintiff’s property occurred during the initial ground invasion or as the result of a direct attack against the insurgents
Plaintiff's status as an ally of the United States has no relevance to the issue. For purposes of takings jurisprudence under the enemy property doctrine, the label "enemy property” attaches to the property, not to the litigant. However, because the court already has determined that plaintiff’s takings claim is not cognizable under the Fifth Amendment due to the military necessity doctrine, a determination of whether plaintiff’s property was "enemy property” is not necessary.
. Plaintiff directs the court’s attention to a Congressional Research Service ("CRS") report that provides an "analysis of the somewhat murky pedigree of the [CPA].” Pl.’s Br. filed June 21, 2010, at 8 n. 2. However, the CRS report summary undermines plaintiff's foundational theory that the CPA was a subsidiary entity of the Defense Department:
It is unclear whether CPA is a federal agency. Competing, though not necessarily mutually exclusive, explanations for how it was established contribute to the uncertainty about its status_ Some executive branch documents support the notion that it was created by the President, possibly as the result of a National Security Presidential Directive (NSPD). (This document, if it exists, has not been made available to the public.) The other possibility is that the authority was created by, or pursuant to, United Nations Security Council Resolution 1483 (2003).
L. Elaine Halchin, Cong. Research Serv., RL 32370, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, at [i] (2004); see also id. at 35 (describing CPA as a "multinational effort”).
. The relevant language of Resolution 1483 provides:
Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/203/538) and recognizing the specific authorities, responsibilities and obligations under applicable international law of these states as occupying powers under unified command (the "Authority"),
4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future....
S.C. Res. 1483, at 2, U.N. Doc. S/RES/1483 (May 22, 2003).
.Plaintiff defines an unincorporated territory as "those territories that are not destined for statehood but in which the United States exercises sovereign power.” Pl.’s Br. filed June 21, 2010, at 16. This is not accurate. See United States v. Verdugo-Urquidez,
. This court concurs with defendant's position at oral argument that the facts of the present controversy are more akin to those confronted by the Court in Eisentrager, where the defendants served their punishment at Landsberg Prison during the Allied military occupation of Germany, which the Court held was not within its territorial jurisdiction. See Eisentrager,
. To the extent that plaintiff rests his argument on de facto sovereignty, this court does not read Boumediene as replacing de jure sovereignty with de facto sovereignly. See Boumediene,
. Other developments following Juda militate against extending its holding beyond the particular facts of that case. Juda’s extraterritorial application of the Fifth Amendment was never considered on appeal by the Federal Circuit. Juda and the other Trust Territory cases were consolidated by the Federal Circuit in People of Enewetak v. United States,
Prior to holding that the Marshall Islanders could invoke the Fifth Amendment, Judge Har-kins discussed the Supreme Court’s holdings in the "Insular Cases," which limited the extraterritorial application of various provisions of the Bill of Rights to United States territories in the absence of congressional action. Juda,
In dicta Judge Harkins explained the ratio decidendi underlying his holding with respect to the Fifth Amendment: "All of the restraints of the Bill of Rights are applicable to the United States wherever it has acted. The concept that the Bill of Rights and other constitutional protections against arbitrary government are to be applied selectively on a territorial basis cannot be justified in the 1980s.” Id. at 458. Yet, the Supreme Court subsequently in Verdugo-Urquidez rejected this “global view” of the Constitution:
The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. In Don, we declared the general rule that in an unincorporated territory-one not clearly destined for Statehood-Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." Only “fundamental” constitutional rights are guaranteed to inhabitants of those territories. If that is true with respect to territories ultimately governed by Congress, respondent’s claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power.
Verdugo-Urquidez,
. Plaintiff points to an appropriation resolution, Pub.L. No. 108-106, as evidence that Congress ratified the CPA's mission to "exercise sovereign authority in the relief and reconstruction of Iraq.” See Pl.’s Br. filed June 21, 2010, at 13; id. at 20-21. The Emergency Wartime Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004, Pub.L. No. 108-106, §2101, 117 Stat. 1209, 1225 (2003), provides:
[F]unds appropriated under this heading shall be apportioned on to the Coalition Provisional Authority in Iraq (in its capacity as an entity of the United States Government), the Department of State, the Department of Health and Human Services, the Department of the Treasury, the Department of Defense, and the United States Agency for International Development.
Id. Defendant responds that Congress’s appropriating funds to an entity cannot be equated to Congress’s specifically directing how a territory will be governed, as it did in 48 U.S.C. § 1681. See Def.’s Br. filed July 12, 2010, at 13. The court agrees with defendant’s assessment.
. Plaintiff's allegation of a business relationship and affidavit averring its terms are discussed further in connection with plaintiff's contract claims in part III of this opinion.
. The court has considered defendant’s third argument in favor of dismissal — that plaintiff has not pled a valid inverse takings claim. As explained in defendant’s motion to dismiss, Def.'s Br. filed Feb. 5, 2010, at 20-24, plaintiff's amended complaint does not satisfy the dual requirements for inverse condemnation as set forth in Cary, 552 F.3d at 1377 (explaining that inverse condemnation claimant must satisfy two-part test of causation and appropriation). Having already concluded that plaintiff has not brought a valid takings claim and, alternatively, that plaintiff lacks standing to bring such a claim, the court need not dwell on this issue. However, because the parties discussed Caiy at length at oral argument, the court will explain
Plaintiff purports to satisfy Cary's causation prong by showing that the U.S. military forces intentionally took possession of plaintiff's home and intentionally destroyed the protective wall. See id. ("[To satisfy] the causation prong, it must be shown that ‘the government intend[ed] to invade a protected property interest or [that] the asserted invasion [was] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ ” (alteration in original) (quoting Ridge Line, Inc. v. United States,
. Plaintiff moves for leave to amend his pleading to assert these facts. Pl.'s Br. filed June 21, 2010, at 53 n. 52. Defendant opposes, Def.’s Br. filed July 12, 2010, at 15 n. 4, with the reasonable argument that amendment would be futile because the new averments would not survive defendant’s motion to dismiss. See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V.,
. Plaintiff argues that
the court should not assume that it was mere serendipity that Maj. Gillette reiterated exactly the promises made to Plaintiff by his [deleted]. There is no evidence that the promises contained in the Gillette Memorandum were made to anyone else in the Iraq theater of operations .... It is equally plausible that Defendant was using its military employees to reconfirm authorized promises previously made by its intelligence employees in order to protect its relationship to a vital intelligence asset.
Pl.’s Br. filed June 21, 2010, at 54; see also Tr. at 78-79 (raising same argument). The court considers this claim in its discussion of the Totten bar.
. Plaintiff asserts that the court raised sua sponte the issue of whether Tenet v. Doe, 544 U.S. I,
. Defendant's supplemental brief explains that, even though Tenet and Totten require dismissing plaintiff’s claim for lack of jurisdiction, defendant did not deem it necessary to raise Totten and Tenet in prior briefs because plaintiff failed to plead sufficient facts establishing a contract. Def.’s Br. filed Sept. 27, 2010, at 4 n. 2. Defendant "confuses the issue of jurisdiction with the question of whether [plaintiff] can prevail on the merits.” Clark,