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Federal Court of Claims Finds that Settlement without Compensation of Foreign Nationals' Claims Against Libya does not Violate Fifth Amendment

Published online by Cambridge University Press:  29 March 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 830 - 833
Copyright
Copyright © American Society of International Law 2016

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References

1 Aviation & Gen. Ins. Co., Ltd. v. United States, 127 Fed. Cl. 316, 319–20 (2016).

2 Id. at 318.

3 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1604 (2012).

4 Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, §221, 110 Stat. 1214, 1241–43 (codified as amended at 28 U.S.C. §1605A(a)(1) (2008)). “[T]he term ‘state sponsor of terrorism’ means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism.” 28 U.S.C. §1605A(h)(6). See also Leigh, Monroe, 1996 Amendments to the Foreign Sovereign Immunities Act with Respect to Terrorist Activities, 91 AJIL 187 (1997)CrossRefGoogle Scholar.

5 See Export Controls for Foreign Policy Purposes Letter to the Speaker of the House and the President of the Senate, 2 Pub. Papers 2290, 2294, Enclosure 2 (Dec. 29, 1979); Revisions to Reflect Identification and Continuation of Foreign Policy Export Controls, 45 Fed. Reg. 1595, 1596 (Jan. 8, 1980) (codified at 15 C.F.R. §385.4(d) (1980)).

6 Aviation & Gen. Ins. Co., Ltd. v. United States, 121 Fed. Cl. 357, 359 (2015). Soon after, on June 30, 2006, the U.S. government rescinded Libya's status as a state sponsor of terrorism. 71 Fed. Reg. 39,696 (July 13, 2006).

7 127 Fed. Cl. at 318.

8 John R. Crook, Contemporary Practice of the United States, 102 AJIL 892, 892–93 (2008).

9 Libya put $1.5 billion into an account created to hold funds for distribution by the United States. Claims Settlement Agreement Between the United States of America and the Great Socialist People's Libyan Arab Jamahiriya, Libya-U.S., Aug. 14, 2008, TIAS No. 08-814.

10 Id.

11 Id.

12 Libyan Claims Resolution Act, Pub. L. No. 110–301, 122 Stat. 2999 (2008).

13 Id.

14 Certification Under Section 5(A)(2) of the Libyan Claims Resolution Act Relating to the Receipt of Funds for Settlement of Claims Against Libya (Oct. 31, 2008), available at http://www.state.gov/documents/organization/138871.pdf.

15 Exec. Order No. 13,477, 70 Fed. Reg. 215 (Nov. 5, 2008).

16 Id.

17 121 Fed. Cl. at 360-61.

18 Under 22 U.S.C.A. §1623, the Foreign Claims Settlement Commission has “jurisdiction to receive, examine, adjudicate, and render a final decision with respect to any claim of the Government of the United States or of any national of the United States … included in a category of claims against a foreign government which is referred to the Commission by the Secretary of State.” The Secretary of State referred several categories of claims to the Commission. In his January 15, 2009 letter, John Bellinger referred, in pertinent part, “commercial claims” of U.S. nationals to the Foreign Claims Settlement Commission. Letter from John Bellinger, Legal Adviser, U.S. Dep't of State, to Mauricio J. Tamargo, Chairman, Foreign Claims Settlement Commission of the U.S. (Jan. 15, 2009), at https://www.justice.gov/sites/default/files/pages/attachments/2014/06/18/january_15_referral.pdf. Claims Against Libya, U.S. Dep’t of Justice, at https://www.justice.gov/fcsc/claims-libya-december-2008-referral-and-january-2009-referral (last updated June 18, 2014); see also John R. Crook, Contemporary Practice of the United States, 103 AJIL 164 (2009).

19 121 Fed. Cl. at 361; see also N.Y. Marine & Gen. Ins. Co. v. Great Socialist People's Libyan Arab Jamahiriya, FCSC, Decision No. LIB-II-165 (2012).

20 Dames & Moore v. Regan, 453 U.S. 654, 688 (1981).

21 Id.

22 127 Fed. Cl. at 319.

23 Id.

24 Id. at 320.

25 Id.

26 Id. at 319.

27 Id. at 319–20.

28 Id. at 320.

29 Id. (quoting Republic of Iraq v. Beaty, 556 U.S. 848, 864–65 (2009)).

30 Id.