Abbas v. United States , 842 F.3d 1371 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
HASSAN ALI ABBAS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1342
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00229-LKG, Judge Lydia Kay
Griggsby.
______________________
Decided: December 6, 2016
______________________
HASSAN ALI ABBAS, Hanover Park, IL, argued pro se.
ALEXANDER ORLANDO CANIZARES, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by JAMES R. SWEET, BENJAMIN C. MIZER,
ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.
______________________
Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.
CLEVENGER, Circuit Judge.
2 ABBAS v. US
Hassan Ali Abbas appeals the final decision of the
United States Court of Federal Claims dismissing his
complaint for lack of subject matter jurisdiction and
failure to state a claim for which relief can be granted
pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the
United States Court of Federal Claims. Because we agree
with the Court of Federal Claims that Mr. Abbas’s claims
are time barred, we affirm.
I
This case arises from Mr. Abbas’s complaint against
the United States (“U.S.” or “the Government”) in the
Court of Federal Claims for an alleged taking of his
property rights in certain pre-World War II German
bonds. Mr. Abbas alleges that a series of post-World War
II treaties between the U.S. and Germany pertaining to
the handling of these bonds effected a regulatory taking
without compensation of his right to enforce the bonds
against Germany in U.S. courts, in violation of the United
States Constitutional requirement that “private property
[shall not] be taken for public use, without just compensa-
tion.” U.S. Const. amend. V. The Court of Federal Claims
found that Mr. Abbas’s claim was time barred by the
applicable statute of limitations. We first provide a short
recitation of the relevant historical background.
After World War I, a number of German banks and
companies sold bearer bonds that were underwritten and
payable in the U.S. Abrey v. Reusch, 153 F. Supp. 337, 339
(S.D.N.Y. 1957). 1 Prior to the outbreak of World War II,
1 We are not the first court to deal with these
bonds. In particular, the Seventh Circuit case Korber v.
Bundesrepublik Deutschland, 739 F.3d 1009 (7th Cir.
2014), involves what appear to be the same bonds at issue
here. Mr. Abbas was counsel to the plaintiffs in Korber,
and states in his brief that he “acquired his bonds during
ABBAS v. US 3
many of the bonds were repurchased by the issuers for
eventual retirement. Id. Those repurchased bonds no
longer represented obligations. Id. Nevertheless, the
outbreak of World War II prevented the issuing authori-
ties from presenting the bonds to the American trustees
or paying agents for cancelation, and thus a large number
of the repurchased (but not cancelled) bonds were stored
in Berlin during the war. Id. Following the occupation of
Berlin by the Soviet Union, a large number of the stored
bonds found their way into unauthorized hands. Id. 2
the Korber case.” Appellant’s Br. at 13. At oral argument,
Mr. Abbas represented that he had obtained the bonds as
of 2008 when the complaint in Korber was filed. Oral
Argument (Oct. 4, 2016) at 02:09–02:58.
Other recent cases dealing with similar German pre-
war bonds include Fulwood v. Federal Republic of Germa-
ny, 734 F.3d 72 (1st Cir. 2013), World Holdings, LLC v.
Federal Republic of Germany, 701 F.3d 641 (11th Cir.
2012), and Mortimer Off Shore Services, Ltd. v. Federal
Republic of Germany, 615 F.3d 97 (2d Cir. 2010). As the
court in Korber noted, the plaintiffs in these recent cases
have been uniformly unsuccessful in asserting their
claims to payment on the bonds.
2 Mr. Abbas takes issue with the idea that the
bonds in question were “looted” or “stolen” by the Soviet
occupation forces after the war. Appellant’s Br. at 8.
Assuming for the sake of argument that Mr. Abbas’s
implication (i.e., that this story was a fabrication used by
Germany to shirk its debt obligations) is correct, it does
not change the outcome of this case. As explained more
infra, the Court of Federal Claims correctly dismissed Mr.
Abbas’s complaint for lack of subject matter jurisdiction.
The court properly did not rule on the substantive merits
of Mr. Abbas’s complaint, including the relevance (if any)
of the provenance of his bonds.
4 ABBAS v. US
Still, a similarly large number of the bonds remained in
the hands of legitimate bona fide purchasers. See id.After the war, Germany 3 was justifiably hesitant to
pay off bonds that were possibly invalid, despite express-
ing a willingness to adopt liability for the pre-war debts of
the Weimar Republic and the Third Reich. 4 The situation
also posed a problem for holders of valid bonds, who
would potentially be forced to share in the limited pool of
available German assets with holders of invalid bonds.
See id. Thus, Germany and the U.S. (as well as other
Allied powers) executed a series of laws and treaties that
sought to hold Germany responsible for its pre-war bonds
(and other debts), while at the same time ensuring that
only holders of valid bonds would be paid. See id.The first relevant statute was the Validation Law for
German Foreign Currency Bonds of 1952. Gesetz zur
Bereinigung von deutschen Schuldverschreibungen, die
auf ausländische Währung lauten (Bereinigungsgesetz für
deutsche Auslandsbonds–AuslWBG) [Validation Law for
German Foreign Currency Bonds], Aug. 25, 1952, BGBl. I
at 553 (“Validation Law”). The Validation Law estab-
3 We refer here and throughout the remainder of
the opinion to West Germany (formally, the Federal
Republic of Germany). East Germany (the German
Democratic Republic) was not a party to the agreements
described below until the reunification of Germany in
1990.
4 Authorities in the U.S. similarly had reservations
about the bonds. Even after the war was over, as of 1951,
the Securities and Exchange Commission continued to
request that brokers and dealers in the U.S. refrain from
trading in German securities until such time as assuranc-
es could be given to investors that the securities consti-
tuted “good delivery.” See Trading In German Securities,
17 C.F.R. § 240 (Jan. 19, 1954).
ABBAS v. US 5
lished procedures under which Germany would assume
liability for foreign currency bonds where bondholders
could prove that their bonds were held outside of Germa-
ny as of January 1, 1945 (i.e., prior to the Soviet invasion
of Germany in late January 1945). See Mortimer Off
Shore Servs., Ltd. v. Fed. Republic of Ger., 615 F.3d 97,
102 (2d Cir. 2010). The law required that the bonds and
supporting evidence be submitted to an examining au-
thority in Germany (or in the country of bond issue),
which would conduct an administrative hearing to deter-
mine the bonds’ validity. See id.The procedures of the Validation Law were incorpo-
rated into a subsequent 1953 agreement between the U.S.
and Germany. Validation of German Dollar Bonds, Ger.–
U.S., Feb. 25–Apr. 9, 1954, 5 U.S.T. 1 (“1953 Treaty”). The
1953 Treaty consisted of two agreements. The first,
Validation of Dollar Bonds of German Issue, Ger.–U.S.,
Feb. 27, 1953, 4 U.S.T. 797 (“Validation Procedures
Treaty”), incorporated the Validation Law (and thus
incorporated the procedures for validating German pre-
war bonds). The agreement also created the Board for the
Validation of German Bonds in the United States (the
“Validation Board”), which served the same function as
the examining authorities created by the Validation Law
and was empowered to conduct the bond validation hear-
ings. 5
In the second, Certain Matters Arising from the Vali-
dation of German Dollar Bonds, Ger.–U.S., Apr. 1, 1953,
4 U.S.T. 885 (“Certain Matters Treaty”), the U.S. agreed
that the German bonds at issue would not be enforceable
in U.S. courts until they had been validated (i.e., shown to
have been outside of Germany on January 1, 1945) “either
by the Board for the Validation of German Bonds in the
5 The U.S.-based Validation Board was dissolved by
1960. Fulwood, 734 F.3d at 81 n.7.
6 ABBAS v. US
United States established by the [Validation Procedures
Treaty], or by the authorities competent for that purpose
in the Federal Republic.” Certain Matters Treaty art. II.
Contemporaneously, the Allied powers and Germany
also entered into a separate agreement, German External
Debts, Feb. 27, 1953, 4 U.S.T. 443, 333 U.N.T.S. 3 (“Lon-
don Debt Agreement”), which aimed “to remove obstacles
to normal economic relations” between Germany and
other nations and to “facilitat[e] a resumption of pay-
ments on [Germany’s] external debts.” Mortimer, 615 F.3d
at 102 (quoting London Debt Agreement at Proclamation).
The London Debt Agreement constituted a settlement
offer by Germany for its pre-World War II debt obliga-
tions, but did not repeal the validation requirements put
into place by the Validation Law, stating that “[o]nly such
creditors shall be entitled to benefit under [the Agree-
ment], as . . . accept the offer, or, in the case of other
debts, assent to the establishment in accordance with
such provisions of terms of payment and other conditions
in respect of such debts.” Id. (quoting London Debt
Agreement art. 15(1)). In the wake of the London Debt
Agreement, Germany adopted a policy of paying validated
bondholders who agreed to settle before paying validated
bondholders who refused the settlement offer. See World
Holdings, LLC v. Fed. Republic of Ger., 701 F.3d 641, 646
(11th Cir. 2012). It appears that Germany finally finished
paying its obligations under the London Debt Agreement,
i.e., finished paying settling holders of validated German
pre-war bonds, on October 3, 2010. Id. at 653.
II
Mr. Abbas filed suit in the Court of Federal Claims on
March 6, 2015, claiming that the 1953 Treaty caused a
taking by the U.S. of Mr. Abbas’s property rights in
certain German pre-war bonds. The Government moved
to dismiss Mr. Abbas’s complaint for lack of subject mat-
ter jurisdiction and failure to state a claim for which relief
ABBAS v. US 7
could be granted. The Court of Federal Claims granted
the motion and dismissed the complaint. Abbas v. United
States, 124 Fed. Cl. 46, 56 (2015).
First, the court found that Mr. Abbas’s claims were
untimely. The court explained that a Fifth Amendment
takings claim accrues when the taking occurs, and that
takings alleged to occur via a treaty occur when the U.S.
enters into the treaty. Id. at 53. Accordingly, the court
found that the undisputed facts showed that Mr. Abbas’s
claim, i.e., that the 1953 Treaty acted as a taking of his
property rights in the bonds, accrued on April 1, 1953
(when the U.S. entered into the treaty). Id. Mr. Abbas did
not file until 2015, many decades after the accrual of his
claim. The court found that his claim was thus time
barred under 28 U.S.C. § 2501. Id. The Court of Federal
Claims also rejected Mr. Abbas’s argument that his claim
accrued on October 3, 2010 when Germany finished
paying the settling holders of validated bonds. Id. at 54.
The court found that “the date on which [Mr. Abbas] could
have filed a claim to enforce the Bonds against Germany
is simply not relevant to determining when his takings
claim against the United States accrued.” Id.
Next, the Court of Federal Claims found that Mr. Ab-
bas lacked standing to bring his claim. The court ex-
plained that “only persons with a valid property interest
at the time of the taking are entitled to compensation.”
Id. at 55 (quoting CRV Enters., Inc. v. United States, 626
F.3d 1241, 1249 (Fed. Cir. 2010) (internal quotation
marks and citation omitted)). Because Mr. Abbas did not
own the bonds when the taking occurred, i.e., when the
U.S. entered into the 1953 Treaty, he lacked standing to
bring his takings claim. Id. Similarly, the Court of Fed-
eral Claims found that Mr. Abbas had also failed to state
a plausible Fifth Amendment claim because he had no
cognizable property interest in the bonds at the time of
the taking. Id.8 ABBAS v. US
Mr. Abbas timely appealed the final decision of the
Court of Federal Claims. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
III
We review de novo the Court of Federal Claims’s de-
termination that it lacked subject matter jurisdiction, its
dismissal of a complaint on the grounds of standing, and
its dismissal for failure to state a claim under Rule
12(b)(6). Todd Constr., L.P. v. United States, 656 F.3d
1306, 1310 (Fed. Cir. 2011).
We agree with the Court of Federal Claims that Mr.
Abbas’s claim is barred by the relevant statute of limita-
tions, 28 U.S.C. § 2501, which requires that claims
brought in the Court of Federal Claims be filed within six
years of accrual of the cause of action.
It is clear from his briefing to this court and from his
complaint below that Mr. Abbas’s claim is that the U.S.
caused a regulatory taking of his right to sue Germany for
payment of his bonds when the U.S. entered into the 1953
Treaty. See, e.g., Appellant’s Br. at 9 (“Plaintiff alleged
causes of action against Germany which have been taken
by a U.S. treaty. . . . The U.S. terminated Plaintiff’s
contract rights under the bonds by treaty with Germa-
ny”). 6 A cause of action for a taking by treaty accrues
6 See also id. at 17 (“Plaintiff, Mr. Abbas, has iden-
tified his ‘legal claims’ against Germany which are prop-
erty interests which were taken by the U.S. government’s
treaty with Germany.”); id. at 18 (“While it is Germany
that failed to validate and pay the bonds for no legitimate
reason even though the criteria for validation are met and
the bonds are valid and authentic, it is the treaty itself,
and the terms and effects thereof, that have taken the
Plaintiff’s claims and right to sue Germany in the U.S.”
(emphasis added)).
ABBAS v. US 9
when the treaty in question goes into effect. See Alliance
of Descendants of Tex. Land Grants v. United States, 37
F.3d 1478, 1481–82 (Fed. Cir. 1994); see also Hair v.
United States, 52 Fed. Cl. 279, 284 (Fed. Cl. 2002) (citing
Alliance of Descendants of Tex., 37 F.3d at 1482), aff’d 330
F.3d 1253 (Fed. Cir. 2003).
Under 28 U.S.C. § 2501, Mr. Abbas was required to
file his complaint within six years of accrual of his claim.
Because his claim is that the 1953 Treaty was a taking of
his property, and because the treaty went into effect in
1953, Mr. Abbas was required to file his takings com-
plaint by 1959. Because he did not do so, his claim is
barred by the statute of limitations, and the Court of
Federal Claims correctly found that it lacked jurisdiction
to hear the claim. See, e.g., Rocky Mountain Helium, LLC
v. United States, No. 2016-1278, 2016 WL 6775965, at *4
(Fed. Cir. Nov. 16, 2016) (“The jurisdiction of the Court of
Federal Claims is limited by the six-year statute of limita-
tions of 28 U.S.C. § 2501.” (citing John R. Sand & Gravel
Co. v. United States, 552 U.S. 130, 134 (2008) (holding
that § 2501 states a jurisdictional limit))).
Mr. Abbas argues that his claim against the U.S. did
not accrue until October 3, 2010, when Germany finished
paying settling holders of validated bonds. Because he
filed his claim within six years of that date, he argues
that the claim is not time barred by 28 U.S.C. § 2501. As
the Court of Federal Claims correctly recognized, this
argument erroneously conflates the takings claim against
the Government and default claims against Germany.
The date on which Mr. Abbas could have filed a claim to
enforce bonds against Germany is not relevant to deter-
mining the date when he could have filed a claim against
the U.S. for interference with his rights to sue Germany.
The interfering act of the U.S. arose upon execution of the
1953 Treaty, and it is that act that triggered the running
of the statute of limitations. Germany’s actions with
regard to settlement payments made pursuant to the
10 ABBAS v. US
London Debt Agreement have no bearing on Mr. Abbas’s
claim against the U.S. Thus, the Court of Federal Claims
correctly held that “the timing of Germany’s settlement
payments under the London Debt Agreement cannot
properly serve as the basis for establishing when plain-
tiff’s takings claim accrued in this matter.” Abbas, 124
Fed. Cl. at 54. In short, Germany’s actions do not form a
basis for a takings claim against the U.S. 7
We have considered Mr. Abbas’s other arguments and
find them to be without merit. We therefore affirm the
Court of Federal Claims’s decision to dismiss Mr. Abbas’s
claim for lack of subject matter jurisdiction because his
claim was filed decades after the running of the statute of
limitation. We do not need to reach, and thus express no
opinion on, the Court of Federal Claims’s alternative
findings that Mr. Abbas both lacked standing to assert his
takings claim and failed to state a takings claim for which
relief could be granted.
CONCLUSION
For the reasons above, we affirm the Court of Federal
Claims’s dismissal of Mr. Abbas’s complaint.
AFFIRMED
7 This holding is consistent with our sister circuits
that have considered the issue. See Fulwood, 734 F.3d at
80-81; World Holdings, 701 F.3d at 653–54; Mortimer, 615
F.3d at 117.