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No. 08-600

 

In the Supreme Court of the United States

ZOYA ATAMIRZAYEVA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
KATHRYN E. KOVACS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 08-600

ZOYA ATAMIRZAYEVA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-20) is reported at 524 F.3d 1320. The opinion of the Court of Federal Claims (Pet. App. 21-46) is reported at 77 Fed. Cl. 378.

JURISDICTION

The judgment of the court of appeals was entered on May 7, 2008. A petition for rehearing was denied on August 5, 2008 (Pet. App. 48-49). The petition for a writ of certiorari was filed on November 3, 2008. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, a citizen and resident of Uzbekistan, owned a cafeteria near the United States Embassy in Tashkent, Uzbekistan. Pet. App. 51-52. Petitioner alleges that the United States demanded that local au thorities destroy her cafeteria "for the sake of the secu rity of the [United States] Embassy." Id. at 56. She fur ther alleges that, on or about December 23, 1999, local authorities, "act[ing] at the demand of the U.S. Embassy in Tashkent and for its benefit," destroyed the cafeteria. Ibid.

2. Petitioner brought this action against the United States in the Court of Federal Claims, seeking compen sation for the taking of her property. Pet. App. 50-61. The court dismissed the complaint. Id. at 21-46. The court acknowledged "the general principle that the Takings Clause of the Fifth Amendment has extraterri torial application," id. at 41, in the sense that nonresi dent aliens may seek just compensation for the taking of property located within the United States, and United States citizens may seek just compensation for the tak ing of property located outside the United States, id. at 39. But the court held that, to pursue a claim for just compensation for a taking of foreign property, a nonresi dent alien must, as a threshold matter, demonstrate "substantial connections" to the United States. Id. at 41. Since petitioner "failed to demonstrate any substan tial connections to the United States," the court con cluded that petitioner could not assert a claim under the Just Compensation Clause for the taking of property in a foreign country. Id. at 46.

The Court of Federal Claims went on to explain that, even when a plaintiff does have substantial connections to the United States, a court must "look at the involve ment of the United States in the taking" and must deter mine "whether the Takings Clause could be applied 'with out inconvenience or practical difficulty.'" Pet. App. 41 (quoting Turney v. United States, 126 Ct. Cl. 202, 215 (1953)). The court observed that adjudicating the claim in this case might "very well" present "practical diffi culty" because "relations between the United States and Uzbekistan are strained," and Uzbekistan has an au thoritarian government with no independent judicial system. Id. at 41 n.15; see id. at 45 ("[E]ven if substan tial connections with the United States are not required, Plaintiff may have a hard time passing the 'without in convenience and practical difficulty' test of Turney.").

3. The court of appeals affirmed. Pet. App. 1-20. The court began by surveying this Court's "cases involv ing the extraterritorial application of constitutional pro visions." Id. at 3; see id. at 4-12 (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); Reid v. Covert, 354 U.S. 1 (1957); Johnson v. Eisentrager, 339 U.S. 763 (1950); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); several of the Insular Cases1; and In re Ross, 140 U.S. 453 (1891)). Based on its analysis of those cases, the court rejected petitioner's contention "that the Fifth Amendment protects the foreign prop erty of citizens of every foreign country without regard to their connections with the United States." Id. at 17. In particular, the court emphasized that Verdugo-Ur quidez reaffirmed Eisentrager's rejection of "the claim that aliens are entitled to Fifth Amendment rights out side the sovereign territory of the United States." Id. at 10 (quoting Verdugo-Urquidez, 494 U.S. at 269).

Petitioner relied on the Court of Claims' decision in Turney, supra, which allowed a Philippine corporation to bring a claim against the United States for just com pensation for the taking of property located in the Phil ippines. In petitioner's view, Turney established that "a non-resident alien [need not] show any connection to the United States in order to assert a takings claim for over seas property." Pet. App. 13. The court of appeals ex plained, however, that "the claimant in Turney," unlike petitioner, had "significant connections to the United States." Id. at 17. And the court also noted that inter preting Turney as petitioner urged "would be in tension with the Supreme Court's subsequent decision in Verdugo-Urquidez." Id. at 18.

4. Petitioner filed a petition for rehearing en banc, arguing that the decision of the court of appeals con flicted with this Court's decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), which was issued shortly after the panel's decision. The court of appeals denied the peti tion for rehearing. Pet. App. 48-49.

ARGUMENT

The court of appeals correctly held that aliens who lack any connection to the United States may not assert claims under the Just Compensation Clause for the tak ing of property in foreign countries. That holding is con sistent with this Court's decisions in Johnson v. Eisen trager, 339 U.S. 763, 781-785 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), and it does not conflict with any decision of any other court of appeals. Further review is not warranted.

1. This Court has repeatedly reaffirmed "that cer tain constitutional protections available to persons in side the United States are unavailable to aliens outside of our geographic borders." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). In particular, the Fifth Amend ment does not apply to aliens who have no presence in any territory over which the United States is sovereign. Verdugo-Urquidez, 494 U.S. at 269 ("[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States."); Zadvydas, 533 U.S. at 693 (citing Verdugo- Urquidez for the proposition that the "Fifth Amend ment's protections do not extend to aliens outside the territorial boundaries" of the United States); Eisen trager, 339 U.S. at 783 (finding "no authority whatever" supporting the contention "that the Fifth Amendment confers rights upon all persons, whatever their national ity, wherever they are located"). The court of appeals correctly applied those precedents when it determined that petitioner-an alien who does not allege that she has any connection to the United States-could not as sert a claim under the Fifth Amendment for the taking of property located in Uzbekistan.

2. Petitioner asserts (Pet. 10-11) that the decision below conflicts with Boumediene v. Bush, 128 S. Ct. 2229 (2008), which held that aliens detained as enemy combatants at the United States Naval Base at Guantan amo Bay, Cuba, enjoy rights under the Suspension Clause of the Constitution, Art. I, § 9, cl. 2. Petitioner is incorrect for two reasons.

First, the Court's decision in Boumediene was groun ded on the unique status of Guantanamo Bay, and specif ically what the Court described as "the obvious and un contested fact that the United States, by virtue of its complete jurisdiction and control over the base, main tains de facto sovereignty over this territory." 128 S. Ct. at 2253. The opinion repeatedly emphasized the unusual status of Guantanamo Bay. See, e.g., id. at 2252 ("Cuba effectively has no rights as a sovereign."); id. at 2258 ("The United States has maintained complete and unin terrupted control of the bay for over 100 years."); id. at 2261 ("In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the Uni ted States."); id. at 2262 (describing Guantanamo Bay as "territory that, while technically not part of the United States, is under the complete and total control of our Government"). Here, by contrast, the United States lacked both sovereignty and practical control over the property at issue. According to the complaint, it was the government of Uzbekistan, not the United States, that owned the land on which petitioner's cafeteria was lo cated and that carried out the destruction of the cafete ria. Pet. App. 50, 52, 56. Thus, both the "formal legal status" and the "objective degree of control the United States asserted" over the property are dramatically dif ferent from Boumediene and do not support application of the Just Compensation Clause. 128 S. Ct. at 2258.

Second, Boumediene concerned only the Suspension Clause of the Constitution, and it did not address the applicability of the Fifth Amendment. See 128 S. Ct. at 2244. The Court's application of its functional test for extraterritoriality was entirely focused on the Suspen sion Clause, see id. at 2259-2262, and the Court stated its holding narrowly: "We hold that Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo Bay," id. at 2262. The Court in Boumediene did not overrule pre cedents governing the extraterritorial application of the Fifth Amendment. To the contrary, the Court reaf firmed the validity of Eisentrager; it simply distin guished that case, even as to the application of the Sus pension Clause, on the ground that, unlike Guantanamo Bay, "the United States' control over the prison in [Eisentrager] was neither absolute nor indefinite." 128 S. Ct. at 2260. That observation highlights the continu ing applicability of Eisentrager's Fifth Amendment rul ing, especially in the circumstances presented here, be cause the United States had even less control over peti tioner's cafeteria in Uzbekistan than it did over the prison in occupied Germany that was at issue in Eisen trager.

3. Petitioner asserts (Pet. 8-9) that the court of ap peals "established a rigid rule" requiring foreign nation als pursuing a Fifth Amendment taking claim to have "some preexisting substantial connection with the United States." In fact, the court rejected petitioner's suggestion that it adopt a "blanket rule" that "the Fifth Amendment protects the foreign property of citizens of every foreign country without regard to their connec tions with the United States." Pet. App. 17. In rejecting that proposal, the court grounded its decision on peti tioner's lack of "any relationship, business or otherwise, with the United States." Ibid. (emphasis added); see id. at 19 (noting "the absence of any allegation of a relation ship between the plaintiff and the United States") (em phasis added). This Court has never held that a person in petitioner's circumstances-a foreign national with no connection whatsoever to the United States who claims a taking of property in a foreign country over which the United States had no sovereignty or control-is entitled to the protections of the Constitution.

Similarly misplaced is petitioner's suggestion (Pet. 9) that, under the decision below, foreign nationals could pursue takings claims "if they happened, fortuitously, to have some unrelated connection with the United States." The court of appeals did not adopt any such "arbitrary standard." Pet. 11. Because petitioner alleged no rela tionship at all with the United States, the court did not consider what type of relationship would be sufficient to allow an alien to bring a claim under the Just Compensa tion Clause. Nothing in the court's opinion support's petitioner's assertion (Pet. 13) that she would have been able to pursue her claim simply by alleging that she had "vacationed at Disney World."

4. Finally, petitioner (Pet. 13-15) asserts that it would not be impractical to apply the Just Compensation Clause extraterritorially. Because petitioner lacks any connection to the United States, the court of appeals had no need to consider that issue. But as the Court of Fed eral Claims observed, petitioner's complaint makes clear that practical considerations also weigh against her claim. Petitioner alleged that "Uzbekistan presents se vere terrorist risks to U.S. interests," Pet. App. 53, and that "the U.S. Embassy in Tashkent was at risk of ter rorist attack," id. at 54. Thus, as in Eisentrager, the United States "faced potential security threats" in Uz bekistan, as well as potential "friction with the host gov ernment," making extraterritorial application of the Fifth Amendment particularly inappropriate in this case. Boumediene, 128 S. Ct. at 2261; see Pet. App. 41 n.15.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
KATHRYN E. KOVACS
Attorney

JANUARY 2009

1 Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197 (1903); and Downes v. Bidwell, 182 U.S. 244 (1901).