Case: 19-2382 Document: 53 Page: 1 Filed: 02/10/2021
United States Court of Appeals
for the Federal Circuit
______________________
TEMOR S. SHARIFI,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2382
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-01090-BAF, Senior Judge Bohdan A. Futey.
______________________
Decided: February 10, 2021
______________________
CAROLYN L. GAINES, Philadelphia, PA, argued for
plaintiff-appellant.
JOHN LUTHER SMELTZER, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also rep-
resented by JEFFREY B. CLARK, ERIC GRANT, ERIKA KRANZ,
EDWARD CARLOS THOMAS.
______________________
Case: 19-2382 Document: 53 Page: 2 Filed: 02/10/2021
2 SHARIFI v. UNITED STATES
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
O’MALLEY, Circuit Judge.
Temor S. Sharifi appeals from a decision of the United
States Court of Federal Claims (“Claims Court”) dismiss-
ing his claims against the United States for failing to state
a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Rules of the United States Court of Federal
Claims (“RCFC”). Sharifi v. United States,
143 Fed. Cl. 806
(2019). For the reasons explained below, we affirm.
I. BACKGROUND
This appeal concerns land in Afghanistan that Sharifi
alleges the U.S. Army took when it built Combat Outpost
Millet (“COP Millet”) in 2010. After Sharifi filed a com-
plaint with the Department of Defense and received no re-
sponse, he brought the underlying Fifth Amendment
takings claim against the government in the Claims Court.
According to Sharifi’s original complaint, approxi-
mately 100 years ago, Sharifi’s grandfather acquired a land
lot in Deh-e-Kowchay, Arghandab District, Kandahar in
Afghanistan. J.A. 25–26, ¶¶ 4–5. 1 The land then passed
to Sharifi’s father, and when Sharifi’s father died, Sharifi
and his siblings subdivided the land among themselves.
J.A. 26, ¶ 5. Sharifi leased his property to a tenant, who
used the land for farming.
Around October 2010, then-Captain Walter A. Reed of
the U.S. Army spoke twice with one of Sharifi’s siblings
about leasing Sharifi’s land. 2 Sharifi later learned that the
1 “J.A.” refers to the Joint Appendix, available at
Dkt. No. 37. “S.A.” refers to the government’s Supple-
mental Appendix, available at Dkt. No. 31.
2 The government attached a declaration by now-
Major Reed as an exhibit to its motion to dismiss,
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SHARIFI v. UNITED STATES 3
Army had demolished houses and trees on his property and
constructed COP Millet on his land and that of his neigh-
bors. J.A. 26–27, ¶¶ 8, 13. At some point, Sharifi also di-
rectly contacted Captain Reed to provide proof of
ownership of the land in the form of documentation that
“had been verified by the District Governor for Arghandab
District.” J.A. 26, ¶ 11.
In response to Sharifi’s complaint, the government
moved for a more definite statement. The government as-
serted that Sharifi’s complaint was “vague and ambiguous”
because it did not specifically identify the property interest
that the United States allegedly took, as required by Rule
9(i) of the RCFC. J.A. 30. In particular, the government
claimed that Sharifi had not provided a legal description of
the land, a deed, or other document that would allow the
United States to identify the location of the land lot that
Sharifi’s grandfather acquired. J.A. 30. And Sharifi had
not provided a legal description of his property interest, of-
ficial documentation describing the portion of property con-
veyed to him, or a sufficient description of where his
portion of the land lot is located. J.A. 30–31.
The Claims Court granted the government’s motion, in-
structing Sharifi to file an amended complaint “specifically
identifying the land that he owns” that the United States
took. Sharifi v. United States, No. 16-1090L,
2017 WL
461554, at *1 (Fed. Cl. Feb. 1, 2017). The Claims Court
explained that Sharifi could either attach as an exhibit the
proof of ownership he allegedly provided Captain Reed or
describe in some other way the specific location of the land
that he (and not his neighbors) owned.
Id. According to
the Claims Court, that Afghanistan had its own customs
contesting Sharifi’s account of these October 2010 conver-
sations. The Claims Court declined to wade into this fac-
tual dispute and accepted Sharifi’s allegations about the
conversations as true. Sharifi, 143 Fed. Cl. at 809 n.4.
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4 SHARIFI v. UNITED STATES
and practices regarding the formalities employed in recog-
nizing property ownership “should not prevent [Sharifi]
from providing more specific information concerning the lo-
cation of his land.” Id.
In his amended complaint, Sharifi alleged that govern-
ment records, verified by the District Governor of Ar-
ghandab, showed that his grandfather owned the land on
which the Army built COP Millet. J.A. 35, ¶ 5. Ownership
of the land passed to Sharifi and his siblings, who subdi-
vided the land by a 2004 inheritance agreement. J.A. 35,
¶ 6. Sharifi no longer alleged that the Army took his neigh-
bor’s land to construct COP Millet.
Sharifi attached three exhibits to his amended com-
plaint. Exhibit A consists of the Afghan government rec-
ords allegedly showing that Sharifi’s grandfather owned
the taken land. These records are letters sent to and re-
ceived from Sharifi and his siblings, the District Governor
of Arghandab, and the Governor of Kandahar. One letter
from the District Governor of Arghandab to the Governor
of Kandahar reads, “I have verified all the ownership doc-
uments and the land belongs to [Sharifi’s grandfather].” 3
J.A. 46 (Sharifi’s translation).
Exhibit B is the 2004 inheritance agreement that sub-
divided the land lot of Sharifi’s grandfather among Sharifi
and his siblings. And Exhibit C is a letter exchange with
the District Governor of Arghandab, in which Sharifi re-
quested verification that he owned the taken land, and the
District Governor verified Sharifi’s ownership. Exhibit C
3 The government also submitted a translation of
this letter: “The land of the Late [Sharifi’s grandfather] is
confirmed.” S.A. 89. We need not determine which trans-
lation is more accurate because we reach the same result
under either translation.
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SHARIFI v. UNITED STATES 5
also includes a drawing of the land Sharifi and his siblings
allegedly own.
The government moved to dismiss Sharifi’s amended
complaint for failure to state a claim, pursuant to Rule
12(b)(6) of the RCFC. 4 The government argued that, inter
alia, Sharifi had not established a valid property interest
in the allegedly taken land because Sharifi’s government
records were inadequate to support a claim of ownership
under Afghan law. The government also attached six dec-
larations to its motion to dismiss, including several witness
declarations and an expert declaration on Afghan law.
The Claims Court agreed with the government, dis-
missing Sharifi’s amended complaint for failure to show a
cognizable property interest. Sharifi, 143 Fed. Cl. at 817.
The court first determined which types of documents Af-
ghan law recognized as proof of land ownership, mindful
that it is “very difficult to determine . . . the legitimate
owners of land and property in Afghanistan,” in part be-
cause “for much of Afghanistan’s recent history people have
had no alternative but to use customary documents to val-
idate land and property transfers as there has been no
functioning official judicial system.” Id. at 816 (internal
quotations and citation omitted). The court then adopted
the Law of Land Management Affairs, revised by the Tali-
ban in 2000 and by the Afghan government in 2008, which
recognized seven types of documents that may serve as
proof of land ownership. Id. at 816–17. Because neither of
4 The government also moved to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) of the
RCFC. The Claims Court only analyzed the government’s
Rule 12(b)(6) motion. Sharifi, 143 Fed. Cl. at 811–12, 817.
On appeal, the government does not argue that the Claims
Court lacked subject matter jurisdiction over Sharifi’s
claim. We see no basis for holding the Claims Court lacked
subject matter jurisdiction either. See
28 U.S.C. § 1491(a).
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6 SHARIFI v. UNITED STATES
the letters from the District Governor of Arghandab verify-
ing ownership fit into any of these seven categories, the
court held that Sharifi’s letters did not constitute proof of
land ownership under the laws of Afghanistan.
Id. at 817.
The Claims Court acknowledged that “formal registra-
tion and titling has never been widespread” in Afghani-
stan.
Id. (internal quotations and citation omitted). But
the court concluded that, for the most part, Afghan law
only recognizes land ownership based on formal docu-
ments.
Id. That certain communities rarely follow Afghan
property law and instead use informal customs to facilitate
land transactions “puts [Sharifi] in an unfortunate bind,
but not the sort of bind this Court is empowered to resolve
by disregarding those laws entirely.”
Id. Because Sharifi
had not shown that his grandfather owned the allegedly
taken land, the court did not address whether the 2004 in-
heritance agreement validly transferred the property in-
terest of Sharifi’s grandfather to Sharifi. See
id.
On July 11, 2019, the Claims Court entered judgment
dismissing Sharifi’s amended complaint. Sharifi timely ap-
pealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
II. DISCUSSION
A. Standard of Review
We review the grant of a motion to dismiss de novo.
Athey v. United States,
908 F.3d 696, 705 (Fed. Cir. 2018).
To survive a motion to dismiss, a complaint must contain
sufficient facts, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The tenet that a court must ac-
cept as true all allegations in a complaint is inapplicable to
legal conclusions, however.
Id.
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SHARIFI v. UNITED STATES 7
B. The Claims Court Did Not Convert the Government’s
Motion to Dismiss to a Motion for Summary Judgment
Before we reach the merits of Sharifi’s appeal, we first
address the government’s contention that we should review
the Claims Court’s decision as a grant of summary judg-
ment. According to the government, the Claims Court’s
“consideration of matters outside the pleadings essentially
transformed the motion to dismiss into a motion for sum-
mary judgment.” Appellee’s Br. 17. The government relies
on Rule 12(d) of the RCFC, which provides:
If, on a motion under RCFC 12(b)(6) or 12(c), mat-
ters outside the pleadings are presented to and not
excluded by the court, the motion must be treated
as one for summary judgment under RCFC 56. All
parties must be given a reasonable opportunity to
present all the material that is pertinent to the mo-
tion.
According to the government, the exhibits that Sharifi at-
tached to his amended complaint, as well as the declara-
tions and exhibits attached to Sharifi’s briefing of the Rule
12(b)(6) motion, constituted evidence that converted the
government’s motion to dismiss to a motion for summary
judgment.
We disagree. The exhibits that Sharifi attached to his
amended complaint are not “matters outside the pleadings”
that require the Claims Court to treat a Rule 12(b)(6) mo-
tion as a motion for summary judgment. The Claims Court
also did not rely on Sharifi’s declarations and other exhib-
its attached to his briefing to dismiss his amended com-
plaint for failure to state a claim. See Sharifi, 143 Fed. Cl.
at 816–17; see also Easter v. United States,
575 F.3d 1332,
1335 (Fed. Cir. 2009) (“Whether to accept extra-pleading
matter on a motion for judgment on the pleadings and to
treat the motion as one for summary judgment is within
the trial court’s discretion.” (emphasis added)).
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8 SHARIFI v. UNITED STATES
Indeed, the Claims Court consistently applied the cor-
rect standard to review a motion to dismiss—accepting all
well-pleaded factual allegations as true and drawing all
reasonable inferences in favor of Sharifi. See Sharifi, 143
Fed. Cl. at 809 n.4 (“At this early stage, the Court may not
wade into these factual disputes and accepts plaintiff’s al-
legation that Commander Reed expressed some interest in
leasing the land from its owner.”); id. at 813 (“The plaintiff
has alleged facts that, if proven, would show the United
States was involved in the construction of COP Millet to a
sufficient degree to find a Fifth Amendment taking.”); id.
at 814 (“[The government’s] argument may carry the day
at summary judgment but, at this stage, would require
fact-finding that is inappropriate in evaluating a motion to
dismiss.”); id. at 816 (accepting “at this stage as true” the
alleged fact that the District Governor of Arghandab veri-
fied that Sharifi’s grandfather owned the land in question);
see also id. at 817 (granting the government’s motion to dis-
miss).
Nor did the court’s determination of Afghan law gov-
erning land ownership convert the government’s motion to
dismiss into a motion for summary judgment. Rule 44.1 of
the RCFC broadly permits the Claims Court to consider
any relevant material to determine foreign law:
A party who intends to raise an issue about a for-
eign country’s law must give notice by a pleading
or other writing. In determining foreign law, the
court may consider any relevant material or source,
including testimony, whether or not submitted by
a party or admissible under the Federal Rules of
Evidence. The court’s determination must be
treated as a ruling on a question of law.
Rule 44.1 of the RCFC conforms to Rule 44.1 of the Federal
Rules of Civil Procedure, which “provides flexible proce-
dures for presenting and utilizing material on issues of
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SHARIFI v. UNITED STATES 9
foreign law by which a sound result can be achieved with
fairness to the parties.” See Fed. R. Civ. P. 44.1 note (1966).
Under Rule 44.1, a court may “engage in its own re-
search and consider any relevant material” it finds. See id.
(“The court may have at its disposal better foreign law ma-
terials than counsel have presented, or may wish to reex-
amine and amplify material that has been presented by
counsel in partisan fashion or in insufficient detail.”).
There is no requirement that a court give formal notice to
the parties of its intention to engage in its own research on
an issue of foreign law. See id. (“To require, however, that
the court give formal notice from time to time as it proceeds
with its study of the foreign law would add an element of
undesirable rigidity to the procedure for determining is-
sues of foreign law.”).
Here, the Claims Court followed Rule 44.1 when it con-
sidered its own research and testimony from both parties
about Afghan law and the prevalence of informal customs.
Its reliance on these materials to determine a question of
law did not convert the government’s motion to a motion
for summary judgment. Accordingly, we review the Claims
Court’s decision de novo as a grant of a motion to dismiss,
not a motion for summary judgment.
C. The Claims Court Correctly Dismissed Sharifi’s
Amended Complaint for Failure to State a Claim
Turning to the merits, the Fifth Amendment provides
that “private property” may not be “taken for public use,
without just compensation.” U.S. Const. amend. V. To
claim a Fifth Amendment taking, a plaintiff must show a
“cognizable property interest.” Alimanestianu v. United
States,
888 F.3d 1374, 1380 (Fed Cir. 2018). The Constitu-
tion does not create or define the scope of property interests
compensable under the Fifth Amendment. Maritrans Inc.
v. United States,
342 F.3d 1344, 1352 (Fed. Cir. 2003). “In-
stead, ‘existing rules and understandings’ and ‘background
principles’ derived from an independent source, such as
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10 SHARIFI v. UNITED STATES
state, federal, or common law, define the dimensions of the
requisite property rights for purposes of establishing a cog-
nizable taking.”
Id. (quoting Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1030 (1992)).
First, the independent source of law relevant here is
the law of Afghanistan. Neither party disputes the Claims
Court’s determination of the civil law governing land own-
ership in Afghanistan. Oral Arg. at 11:27–13:20,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=19-
2382_11062020.mp3. Based on the government’s expert
declaration and the court’s own research, at least as of
2008, seven types of documents may serve as proof of land
ownership: (1) documents of a legal court; (2) a decree is-
sued by the emirate and the prime ministry, if registered;
(3) tax receipts; (4) proof of water rights; (5) customary
deeds from before 1975, witnessed before 1978; (6) regis-
tered title documents; or (7) title documents obtained by
court order. Sharifi, 143 Fed. Cl. at 816–17.
We agree with the Claims Court that the government
records attached to Sharifi’s amended complaint as Ex-
hibit A do not constitute proof of land ownership under Af-
ghan law. As the government’s expert on Afghan law
explained, “provincial and district governors are not au-
thorized by the laws of Afghanistan to look into civil
claims,” like property law issues regarding ownership and
inheritance, “or [to] issue instruction for that purpose.”
S.A. 75, ¶ 6(c), (f). In his opening brief, Sharifi does not
identify the type of proof of ownership under which the gov-
ernment records fall. Without explanation, Sharifi charac-
terizes these records as “sufficient” to establish Sharifi’s
vested interest in the allegedly taken land. Appellant’s Br.
6. When asked at oral argument to identify which of the
seven types of documents Sharifi pled he could provide,
Sharifi also did not mention the government records. We
therefore find Sharifi’s factual allegations about these rec-
ords insufficient to show he or his grandfather had a
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SHARIFI v. UNITED STATES 11
cognizable property interest under Afghan law in the alleg-
edly taken land.
We also agree with the Claims Court that we need not
address the 2004 inheritance agreement because the
amended complaint has not shown a cognizable property
interest. The 2004 inheritance agreement is inadequate to
show that Sharifi owned the allegedly taken land because
there is no document recognized by Afghan law as proof of
land ownership that shows the decedent—here, Sharifi’s
father—owned the land Sharifi inherited. Oral Arg. at
21:23–22:06.
Nevertheless, at oral argument, Sharifi asserted that
the 2004 inheritance agreement constitutes proof of land
ownership in the form of a registered title document be-
cause the agreement attached a diagram of the plot to the
agreement and because Sharifi allegedly registered the
agreement. Oral Arg. at 7:32–9:04. We are unpersuaded
that Sharifi alleged sufficient factual allegations about the
2004 inheritance agreement to show that it is a proof of
ownership recognized under Afghan law. Indeed, the
agreement is “registered” only insofar as the District Gov-
ernor of Arghandab verified the agreement at some point
after Sharifi and his siblings executed the agreement. But
under Afghan law, the District Governor is not authorized
to certify inheritance agreements; only courts are. S.A. 76,
¶ 6(i).
Sharifi’s reliance on Yaist v. United States,
656 F.2d
616 (Ct. Cl. 1981), is misplaced. In Yaist, the Court of
Claims considered whether a plaintiff was entitled to just
compensation for the taking of property to which the plain-
tiff allegedly held equitable title.
Id. at 622–23. The Yaist
court found equitable title under Florida law, applying the
doctrine of equitable conversion.
Id. Yaist is inapplicable
here because Afghan law, not Florida law, defines the di-
mensions of the requisite property rights for purposes of
establishing a cognizable taking. See Maritrans, 342 F.3d
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12 SHARIFI v. UNITED STATES
at 1352. And Sharifi provides no support for determining
that Afghan law recognizes a doctrine of equitable conver-
sion.
Finally, Sharifi contends that we should recognize his
property interest based on customary law in Afghanistan,
i.e., informal customs. Sharifi relies on a 2005 field study
by the United States Agency for International Develop-
ment (“USAID study”), 5 which discussed the use of custom-
ary law in Afghanistan. But as Sharifi admitted to the
Claims Court, Kandahar Province and Arghandab District
were not among the areas surveyed, and the study did not
suggest an understanding that those areas followed cus-
tomary law and traditions. S.A. 103 (8:4–14). Sharifi also
conceded at oral argument that he had no reason to doubt
that the civil law governing land ownership is currently ap-
plicable and has been applicable since 2008, two years be-
fore the alleged taking. See Oral Arg. at 12:01–13:20. On
this record, we hold that customary law in Afghanistan
cannot establish a cognizable property interest on which
Sharifi can base his takings claim.
In sum, we find that the government records attached
to Sharifi’s amended complaint as Exhibit A and the 2004
inheritance agreement do not constitute proof of land own-
ership under the laws of Afghanistan. Even accepting as
true all factual allegations in Sharifi’s amended complaint,
the amended complaint does not contain sufficient facts to
state a plausible takings claim. See Ashcroft,
556 U.S. at
678.
5 Afghanistan Rule of Law Project: Field Study of
Informal and Customary Justice in Afghanistan and Rec-
ommendations on Improving Access to Justice and Rela-
tions Between Formal Courts and Informal Bodies, U.S.
Agency for Int’l Dev. (Apr. 30, 2005),
https://pdf.usaid.gov/pdf_docs/Pnadf590.pdf.
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SHARIFI v. UNITED STATES 13
III. CONCLUSION
For these reasons, 6 the Claims Court’s decision dis-
missing Sharifi’s amended complaint is affirmed.
AFFIRMED
COSTS
No costs.
6 We do not reach the government’s alternative ar-
guments. Because we agree with the Claims Court that
Sharifi’s amended complaint did not plead sufficient facts
to show a cognizable property interest in the allegedly
taken land, we vacate the remainder of the Claims Court’s
opinion.
