REAL PROPERTY, TAKINGS OF

In case filed by Uzbekistan citizen for just compensation under Fifth Amendment's Taking Clause arising out of destruction of her cafeteria next to U.S. Embassy in Uzbekistan, Federal Circuit holds that, where foreign Plaintiff lacks sufficient connection to U.S. she has no right to compensation

Zoya Atamirzayeva (Plaintiff) alleges that, in response to a request by the U.S. Embassy, the local government evicted her from her property next to the U.S. Embassy in Uzbekistan. The Embassy had raised security concerns with the local authorities who then destroyed her property. While the Plaintiff owned the buildings that included her cafeteria, however, the Republic of Uzbekistan owned the land on which they sat.

Plaintiff, a citizen of Uzbekistan, sued the United States (Defendant) in the U.S. Court of Federal Claims. Plaintiff alleges that she is entitled to just compensation under the Fifth Amendment to the U.S. Constitution for the alleged taking of property she owned in Uzbekistan. The Court of Federal Claims dismissed Plaintiff's claim; it held that Plaintiff had no claim under the Fifth Amendment because she is a foreign national and the situs of her property was in a foreign country. Moreover, she had failed to plead that she had a connection to the U.S.

This appeal followed. The sole question is whether a foreign citizen with no connections to U.S. has a right to just compensation for a taking of property that occurred in a foreign country. The U.S. Court of Appeals for the Federal Circuit affirms.

The Court then explains its reasoning. "The Supreme Court has long taken the view that the Constitution is subject to territorial limitations. [...] By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside their limitsCook v. U.S., 138 U.S. 157, 181 (1891). The constitution can have no operation in another country."� [Slip op. 3].

"[In] Reid v. Covert, 354 U.S. 1 (1957), a plurality of the Court adopted a more expansive view of the extraterritorial application of constitutional protectionsthe Courtheld that, as U.S. civilians being tried for capital offenses, the two women were constitutionally entitled to civilian trials."� [Slip op. 5].

"The plurality did not, however, adopt an unlimited view of the extraterritorial scope of the constitutional provisions at issue in that case. Instead, it relied on the U.S. citizenship of the habeas corpus Defendants in Reid"� [Slip op. 6].

"[Plaintiff] urges that we interpret [Reid] to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that U.S. citizens stationed abroad could invoke the protections of the Fifth and Sixth Amendments...Since respondent is not a U.S. citizen, he can derive no comfort from the Reid holding."�

"[T]he trial court relied on the "�substantial connection test' derived from United States v. Verdugo Urquidez, 494 U.S. 259 (1990), and held that [Plaintiff] did not have a right to relief under the Fifth Amendment because she did not plead any connection to the United States."� [Slip op. 10]

The Plaintiff relied on the decision in Turney v. United States, 126 Ct. Cl. 202, 115 F. Supp. 457 (1953), which rejected the claim that the Fifth Amendment does not apply extraterritorially. "While Turney is binding on us, we do not believe that it is dispositive of [Plaintiff]'s claim. Theclaimant in Turney had three significant connections to the United States."� [Slip op. 12 13].

"[Plaintiff] argues that, under the approach advocated by Justice Kennedy in Verdugo Urquidez and Justice Harlan in Reid, there is no reason to restrict the right to just compensation under the Fifth Amendment to those who have some connection to the United States."�

"Those concurring opinions, however, do not provide the support that [Plaintiff] seeks to derive from them. Justice Kennedy emphasized in Verdugo Urquidez the importance of the distinction between constitutional claims raised by citizens and those raised by "�non citizens who are beyond our territory.' And Justice Harlan's opinion in Reid suggested that even civilian dependents of servicemen overseas might not be entitled to full Article III trials for non capital offenses. Even the broad plurality opinion in Reid does not support Ms. Atamirzayeva's reading of Turney. Although the plurality in Reid cited Turney as a case in which a court applied a constitutional provision extraterritorially, it did so in the context of its discussion of constitutional rights that "�protect Americans abroad.'"� [Slip op. 15].

Citation: Atamirzayeva v. United States, 524 F.3d 1320 (Fed. Cir. 2008).

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