Abbas v. United States

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FILED

No. 15-229C

(Filed: October 21, 2015) oCT 2 I 2015

U,S, COURT OF

FEDERAL CI."AIMS

HASSAN A, ABBAS,

Plaintiff, Pro Se; Rule 12(bX1), Subject-Matter

Jurisdiction; Rule 12(b)(6), Failure to

State a Claim; Fifth Amendment Takings;

Seventh Amendment.

THE TINITED STATES,

Defendant.

Hassan Abbas, Hanover Park, IL, Plaintiff pro se.

James Sweel, Trial Attorney, Martin F. Hockey, Jr., Assistant Director, Robert E.

Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attomey General,

commercial Litigation Branch, civil Division, United States Department of Justice, washington,

DC, for Defendant.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiffpro se, Hassan Abbas, brought this action alleging a takings ofhis right to

enforce certain unvalidated German bearer bonds in United States courts, in violation of the Fifth

Amendment of the United States Constitution, and alleging a violation of his right to trial by jury

under the Seventh Amendment ofthe United States Constitution. See generally Compl. The

government has moved to dismiss plaintiff s complaint for lack of subject-matter jurisdiction and

failure to state a claim upon which relief may be granted, pursuant to Rules l2(b)(1) and 12(bX6)

of the Rules of the United States Court of Federal Claims C'RCFC). See generally Def' Mot;

RCFC l2(b)(l); RCFC 12(b)(6). For the reasons set forth below, the Court GRANTS

defendant's motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND'

A. Factual Background

Plaintiff is an attomey admitted to the bar of the State of lllinois. Compl. at 1. On March

6,2015, plaintiff commenced this action against the United States, seeking compensation for an

alleged takings of his right to enforce certain WWI-er4 unvalidated German bearer bonds that he

has acquired in United States courts. See generally Compl. Plaintiff also alleges a violation of

his right to a trial by jury under the Seventh Amendment of the United States Constitution. 1d.

Specifically, plaintiff alleges that the govemment has taken his property interest in the

Bonds without just compensation, by entering into the Agreement Regarding Certain Matters

Arising from the Validation of German Dollar Bonds in 1953 ("Validation Treaty"). Compl. at 1-

4, 7; Pl. Opp. at 2l; April 1, 1953, 4 U.S.T. 885. Plaintiff also alleges that the govemment has

deprived him of his Seventh Amendment right to trial byjury by entering into the Validation

Treaty. Compl. at 3.

1 The Bonds

Plaintiff owns unvalidated German bearer bonds valued at approximately 1000 USD (the

"Bonds"). Compl. at l, 6; Pl. Opp. at 2. It is undisputed that plaintiffdid not own the Bonds at

the time that the United States entered into the Validation Treaty. Pl.Opp.at2l;April 1,1953,

4 U.S.T. 885.

In fact, plaintiff acknowledges that he did not acquire the Bonds upon their first issuance.

Pl. Opp. at 2l . Plaintiff has not, however, provided the Court with any other information about

when-or under what circumstances-he acquired the Bonds. Pl. Opp. at 21.

Prior to commencing this action, plaintiff served as the attomey representing a group of

bondholders in a lawsuit brought against the Federal Republic of Germany ("Germany") in the

United States District Court for the Northern District of Illinois to enforce German bearer bonds.

See Bleier v. Bundesrepublik Deutschland, No. 08 C 06254,2011 WL 4626164 (N'D. Ill. Sept'

30, 201l), aff'd sub nom Korber v. Bundesrepublik Deutschland, T39 F.3d 1009 (7th Cir. 2014).

In that case, the group of bondholders challenged the legality ofthe validation processes outlined

I The facts recited in this Memorandum Opinion and Order are taken from plaintiff s complaint ("Compl.

at_"), defendant's motion to dismiss ("Def. Mot. at plaintiff s opposition thereto ("P1. Opp. at

_"), and defendant's reply ("Def. Rep. at _").

Except -"),

where otherwise noted, the facts recited here are

undisouted.

in the Validation Treaty and sought the payrnent oftheir bonds. Id.at*1,4. The district court

dismissed their claim lor failure to state a claim and as time-barred under the applicable statutes

of limitations. See generally Order, Bleier v. Bundesrepublik Deutschland, No. 08 C 06254,2011

WL 4626164 G',I.D. nl. Sept.30,2012); Korber,739F.3dat 1011. Following an appeal ofthe

district court's dismissal, the United States Cou( ofAppeals for the Seventh Circuit affirmed the

district court's decision to dismiss the case. Korber.739 F.3d at 1012-13.

2, HistoricalBackground

During the period 1924 to 1933, the German Third Reich sold bearer bonds in United

States' markets in order to raise capital and rebuild its economy after World War I. Del Mot. at

l-2; World Holdings v. Fed. Rep. of Germany,70l F.3d 641,646 (11th Cir. 2012); Fulwood v.

Fed. Rep. of Germany,734F.3d12,75 (|st Cir.20l3). A large quantity ofthese bonds

remained outstanding after World WarII. Pl. Opp. at.2;Def . Mot. at2;Abrey v. Reusch,153F.

Supp. 337, 339 (S.D.N.Y. 1957).

In the 1950s, the Federal Republic of Germany took several steps to facilitate the

payment of claims on these bonds. Def. Mot. at 3. Specifically, in 1952, Germany enacted the

German Validation Law for Foreign Bonds ("Validation Law"), pursuant to which Germany

assumed liability on the bonds if a bondholder could demonstrate that the bonds had not been

located within Germany on January 1, 1945. Def. Mot. at 3; Mortimer Off Shore Servs., Ltd. v.

Germany,615 F.3d 97,102(2d Cir.2010). Subsequently, in 1953, Germany entered into the

London Agreement on German Extemal Debts ("London Debt Agreement") with several

countries including the United States. Feb.27,1953, 4 U.S.T. 443; Pl. Opp. at 2. The London

Debt Agreement served as a settlement offer to the bondholders covered by that agreement. 4

U.S.T. 443,447; Pl. Opp. at2. To that end, the London Debt Agreement required that

bondholders who accepted the settlement terms under the agreement validate their bonds,

pursuant to the Validation Law, before receiving payment from Germany. Pl. Opp. at 2-3.

Germany completed settlement payments pursuant to the London Debt Agreement on October 3,

20 I 0. Pl. Opp. at 2; World Holdings, 70 I F.3d at 653-54.

In 1953, the United States entered into two bilateral treaties related to the German bonds.

Def. Mot. at 3-4; Pl. Opp. at 3. First, Germany and the United States entered into the Agreement

Between the Government of the United States of America and the Govemment of the Federal

Republic of Germany Regarding the Validation of Dollar Bonds of German Issue ("Agreement

on Validation Procedures") on February 27,1953. 4 U.S.T. 797. The Agreement on Validation

Procedures required that all bondholders validate their bonds and that bondholders register their

bonds for validation by 1958. 4 U.S.T. 797,839,855-56 ("Bonds which have not been

registered for validation before expiration of the applicable registration period . . . become

invalid upon such expiration."); Def. Mot. at3; World Holdings,701 F.3d at 647; Fulwood,734

F.3d at76. The agreement also established the procedures for American citizens to validate their

German bonds, including validating the bonds before the Board for the Validation of German

Bonds in the United States. 4 U.S.T. 797,839,855-56; Def. Mot. at 3-4; World Holdings,T0l

F.3d at 647 .

In addition, Germany and the United States entered into an Agreement Regarding Certain

Matters Arising from the Validation of German Dollar Bonds ("Validation Treaty") on April 1,

1953. 4 U.S.T. 885. The Validation Treaty provided that German bonds could be enforced in

United States courts only if the bonds had been "validated either by the Board for the Validation

of German Bonds in the United States established by the Agreement on Validation Procedures,

or by the authorities competent for that purpose" in Germany. 4 U.S.T 885, 889; Def. Mot. at 4;

Pl. Opp. at 3. The United States later dissolved the Board for the Validation of German Bonds in

1960. Def. Mot. at 4; Pl. Opp. at 3. The validation requirements in the Validation Treaty remain

applicable to all owners of German bearer bonds. Compl. at 3; Def. Mot. at3; see also Fulwood,

734 F.3d at 80.

B, ProceduralBackground

Plaintiff filed the complaint in this matter on March 6, 2015. See general/y Compl. On

April29,2015, the government filed a motion to dismiss the complaint for lack of subject-matter

jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to RCFC

l2(b)(l) and RCFC l2(bx6). Dei Mot; RCFC l2(b)(1); RCFC 12(bX6). On July 6,2015,

plaintiff filed a response to the government's motion to dismiss. See generallyPL Opp. On July

17,2015, the government filed a reply to the plaintiif s response to the motion to dismiss. See

generally Def. Rep. The matter having been fully briefed, the Court addresses the pending

motion to dismiss.

III. LEGAL STANDARDS

A. Pro Se Litigants

Plaintiff is an attomey and he is proceeding in this matter pro se. Parties proceeding pro

se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner, 404

U.S. 519, 520-21 (19'12) (holding that pro se complaints are held to "less stringent standards than

formal pleadings drafted by lawyers"). In this regard, "[e]ven a skilled lawyer who represents

himself is at a disadvantage in contested litigation" because "[h]e is deprived ofthejudgment of

an independent third party in framing the theory ofthe case . . . and in making sure that reason,

rather than emotion, dictates the proper tactical response to unforeseen developments in the

courtroom." Kay v. Ehrler,499 U.S. 432,43'/ (1991). And so, plaintiff is afforded the same

leeway customarily granted to all pro se plaintiffs.

In addition, while "a court should be receptive topro se plaintiffs and assist them, justice

is ill-served when ajurist crosses the line from finder offact to advocate." Demes v. United

States, 52 Fed. Cl. 365, 369 (2002). Given this, "the leniency afforded to a pro se litigant with

respect to mere formalities does not relieve the burden to meet jurisdictional requirements."

Minehan v. United States,75 Fed. Cl. 249,253 (2007). The pro se plaintiff still must establish

the Court's jurisdiction by a preponderance of the evidence. Riles v. United States,93 Fed. Cl.

163, 165 (2010). And so, while the Court may excuse ambiguities in the plaintiff s complaint,

the Court does not excuse the complaint's flailures. See Henke v. United States, 60 F .3d 795,799

(Fed. Cir. 1995).

B. RCFC l2(bx1)

When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction

pursuant to RCFC l2(bX1), this Court must assume that all undisputed facts alleged in the

complaint are true and must draw all reasonable inferences in the non-movant's favor. See

Erickson v, Pardus,551 U.S. 89,94 (2007); RCFC 12(bX1). Plaintiff, nonetheless, bears the

burden ofestablishing subject-matter jurisdiction, and must do so by a preponderance ofthe

evidence. Reynolds v. Army & Air Force Exch. 9erv.,846F.2d746,748 (Fed. Cir. 1988). And

so, should the Court determine that "it lacks jurisdiction over the subject matter, it must dismiss

the claim." Matthews v. United States,72Fed. C|.274,278 (2006).

c. RcFc r2(bx6)

When deciding a motion to dismiss based upon failure to state a claim pursuant to RCFC

12(b)(6), this Court must assume that all undisputed lacts alleged in the complaint are true and

must draw all reasonable inferences in the non-movant's favor. See Erickson,55l U.S. at 94;

RCFC 12(bX6). To survive a motion to dismiss under RCFC 12(bX6), a complaint must contain

facts sufficient to "state a claim to reliefthat is plausible on its face." Bell Atl. Corp. v.

Twombly,550U.S.544,570(2007);seealsoAshcroftv. lqbal,556U.S.662,678(2009). When

the complaint fails to "state a claim to reliefthat is plausible on its face," the Court must dismiss

the complaint. Iqbal,556 U.S. at 678 (citation omitted). On the other hand, "[w]hen there are

well-pleaded factual allegations, a court should assume their veracity" and determine whether it

is plausible, based on these facts, to find against the defendant. Id. at679.

D. Fifth Amendment Takings Claims

The United States Court ofFederal Claims has exclusive jurisdiction over Fifth

Amendment takings claims in excess of $10,000. 28 U.S.C. $ la91(a); see also Acceptance Ins.

Cos. Inc.v. UnitedStates,503 F.3d 1328,1336 (Fed. Cir.2007). The Takings Clause of the

Fifth Amendment guarantees just compensation whenever private property is "taken" for public

use. U.S. Const. amend. V. The purpose of the Fifth Amendment is to prevent the

"[g]ovemment from forcing some people alone to bear public burdens which, in all faimess and

justice, should be bome by the public as a whole." Penn Central Transp. Co. v. City of New

York, 438 U.S. 104, 123 (1978) (q\oting Armstrong v. United Stales, 364 U.S. 40, a9 (1960));

see also Florida Rock Indus., Inc. v. United Stares, 18 F.3d 1560, l57l (Fed. Cir. 1994).

In order to have a cause ofaction for a Fifth Amendment takings, the plaintiff must point

to a protectable property interest that is asserted to be the subject ofthe takings. See Phillips v.

Wash. Legal Found.,524 U.S. 156, 164 (1998) ("Because the Constitution protects rather than

creates property interests, the existence ofa property interest is determined by reference to

'existing rules or understandings that stem from an independent source such as state law."')

(citation omitted). In addition, courts have traditionally divided their analysis of Fifth

Amendment takings into two categories-regulatory takings and physical takings.

In this regard, the United States Court ofAppeals for the Federal Circuit has recognized

that "Ig]ovemment action that does not directly appropriate or invade, physically destroy, or oust

an owner from property but is overly burdensome may be a regulatory taking." A & D Auto

Sales, Inc. v. United States,748 F.3d 1142, 1151 (Fed. Cir. 2014). ln assessing whether a

regulatory takings has occurred, courts generally employ the balancing test seI forth in Penn

Central, weighing the character ofthe govemment action, the economic impact ofthat action and

the reasonableness ofthe property owner's investment-backed expectations. Penn Central

Transp. Co.,43 8 U. S. at 124-25. "The general rule at least is that while property may be

regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Penn.

Coal Co. v. Mahon,260 U.S. 393,415 (1922); see also Lingle v. Chevron U.S.A. [nc.,544 U.S.

528,537 (2005) (holding a regulation is a takings if it is "so onerous that its effect is tantamount

to a direct appropriation or ouster")2.

In contrast, physical or per se takings occur when the govemment's action amounts to a

physical occupation or invasion of the property, including the functional equivalent of"a

practical ouster of [the property owner's] possession." Transportation Co. v. Chicago,99U.S.

635,642 (1878); see also Lorettov. Teleprompler Manhattan CATV Corp.,458 U.S. 419,428

( 1982). When an owner has suffered a physical invasion of his property, the United States

Supreme Court has noted that "no matter how minute the intrusion, and no matter how weighty

the public purpose behind it, we have required compensation." Lucas,505 U.S. at 1015. The

distinction between a physical invasion and a govemmental activity that merely impairs the use

of that property turns on whether the intrusion is "so immediate and direct as to subtract from the

owner's full enjoyment of the property and to limit his exploitation of it." United States v.

Caus by, 328 U.S. 256, 265 (1946).

2Regulations that are found to be too restrictive, so that the regulations deprive property of its entire

economically beneficial or productive use, are viewed as categorical takings. Lucas v. S.C. Coastal

Council,505 U.S. 1003, l0l5(1992); see also A & D Auto Sales, T48 F.3d at I l5l-52. Categorical

takings do not require the application ofthe Penn Central balancing test. Id.at1152. Th€ United States

Supreme Court has mainly applied the categorical test to regulatory takings of real property . See Lucas,

505 U.S. at 1015-19. lnA & DAuto Sales, the United States Court of Appeals for the Federal Circuit

noted that it has attimes applied the categorical test to tangible personal property as well. 748F.3dat

1151-52 (citing Rose Acre Farms, Inc. v. United States,373 F.3d 1177, | 196-98 (Fed. Cir. 2004)); see

also Maritrans, Inc. v. United States,342 F .3d 1344, 1353-55 (Fed. Cir. 2003).

E. Statute Of Limitations And Standing Doctrine

Pursuant to title 28, United States Code, section 2501, "[e]very claim of which the United

States Court ofFederal Claims has jurisdiction shall be barred unless the petition thereon is filed

within six years after such claim first accrues." 28 U.S.C. $ 2501. This six-year limitations

period is not susceptible to equitable tolling. John R. Sand & Gravel Co. v. United Stales,552

U.S. 130, 136 (2008). In addition, "a claim accrues 'when all the events have occurred which fix

the liability of the Government and entitle the claimant to institute an action."' Goodrich v.

United Srates, 434 F .3d 1329, 1333 (Fed. Cir. 2006) (citing Hopland Band of Pomo Indians v.

United States,855 F.2d 1573,1576-77 (Fed. Cir. 1988)); see also Bay Area Laundry and Dry

Cleaning Pension Trust Fund v. Ferbar Corp. ofCal., |nc.,522 U.S. 192,201 (1997) (("a cause

ofaction does not become complete and present for limitations purposes until the plaintiffcan

file suit and obtain relief.") (citations omitted)).

Within the context of a Fifth Amendment takings claim, a plaintiff must bring a takings

claim within six years of the date on which the takings occurred. 28 U.S.C. $2501; Hair v.

United Stures,350 F.3d 1253,1260 (Fed. Cir. 2003); Alliance of Descendants ofTex. Land

Gronts v. United States,37 F.Jd, 1478, 1481 (Fed. Cir. 1994) (holding that a Fifth Amendment

takings claim accrues when the takings occurs) (citing Sreel Improvement & Forge Co. v. United

States,174Ct.Cl.24,29 (1966)). When a treaty is alleged to effectuate a takings, the plaintiff s

takings claim accrues when the United States enters into the treaty. See Alliance,3T F.3d at

1482; cf. Goodrich, 434 F .3d at 1336 (holding that the plaintiff s takings claim accrued when the

United States Forest Service adopted a Record of Decision, "regardless ofwhen the

consequences of the decisions contained therein are felt."). In addition, a plaintiff must show

that he or she owned the property alleged to have been taken at the time that the alleged takings

occurred, to have standing to bring a takings claim. Cristina Inv. Corp. v. United States,40Fed.

Cl. 571, 580 (1998) (citing United States v. Dow,357 U.S. 17, 20-21 (1958)).

IV. DISCUSSION

A. Plaintiffs Takings Claim Is Untimely

As an initial matter, the Court does not possess jurisdiction to consider plainti{Ps takings

claim because the claim is time-barred. It is well established that "[e]very claim of which the

United States Cou( ofFederal Claims has jurisdiction shall be barred unless the petition thereon

is filed within six years after such claim first accrues." 28 U.S.C. $ 2501. Within the context of

a Fifth Amendment takings claim, a plaintiff must bring a takings claim within six years of the

date on which the takings occurred. 28 U.S.C. $2501; Hair,350 F.3d at 1260; Alliance,3T F.3d

at l48l (holding a Fifth Amendment takings claim accrues when the takings occrus) (citing Steel

Improvement,IT4 Ct. Cl. at 29). In addition, when a treaty is alleged to effectuate a takings-as

the plaintiff alleges in this case-the takings claim accrues when the United States enters into the

Ireaty. See Alliance,3T F.3d at 1482; cf. Goodrich,434 F.3d at 1336 (holding that the plaintifPs

takings claim accrued when the United States Forest Service adopted a Record ofDecision,

"regardless ofwhen the consequences ofthe decisions contained therein are felt."). And so, in

this case, plaintiff must show that he filed his takings claim within six years of the date on which

the United States entered into the treaty that effectuated the alleged takings. Id.

The undisputed facts in this case show that plaintiffs takings claim accrued many

decades before he commenced this action. Plaintiff states in his complaint that the alleged

takings in this matter occurred when the United States entered into the Validation Treaty with

Germany. Compl. at I- 4,7;Pl. Opp. at 2. It is without dispute that the United States entered

into this treaty on April l, 1953*more than sixty years before plaintiff commenced this action.

Compl. at, e.g.,I- 3; Pl. Opp. at 3. As established above, when a treaty is alleged to effectuate

the takings, the takings claim accrues when the govemment enters into that treaty . Alliance, 37

F.3d at 1482; see also Goodrich,434 F.3d at 1336. Given this, plaintiffs takings claim accrued

when the United States entered into the Validation Treaty, and, as a result, he commenced this

takings action well beyond the six year limitations period provided for in section 25 01. See 28

U.S.C. $ 2501 (plaintiff must bring claims before the United States Court of Federal Claims

"within six years after such claim first accrues.") And so, plaintiff s takings claim is time-baned

by the statute of limitations set forth in section 2501 . 28 U.S.C. $ 2501 .

In his opposition to the govemment's motion to dismiss, plaintiff argues that his takings

claim is timely because this claim accrued on October 3, 2010, when Germany completed certain

payments to bondholders pursuant to the London Debt Agreement. Compl. atl,7-8; Pl. Opp. at

2, 23-24. Plaintiff, thus, argues that he was "prevented from obtaining relief until after October

3,2010." Compl. at 12; Pl. Opp. at 23-24 (emphasis in original)r. But. plaintiff s argument is

belied by the undisputed facts

It is well established that "a claim accrues 'when all the events have occurred which fix

the liability of the Government and entitle the claimant to institute an action."' Goodrich v.

United States,434 F.3d 1329, 1333 (Fed. Cir. 2006) (citing Hopland Band of Pomo Indians v.

United States,855 F.2d 15'73,1576-77 (Fed. Cir. 1988)); see also Bay Area Laundry and Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., [nc.,522 U.S. 192,201(1997) (("a cause

of action does not become complete and present for limitations purposes until the plaintiffcan

file suit and obtain relief.") (citations omitted)). Moreover, as discussed above, a takings claim

based upon a treaty accrues when the United States enters into that treaty. Alliance,3T F.3d at

1482; see also Goodrich,434 F.3d at 1336. And so, here, plaintiff s takings claim must have

accrued when all ofthe events related to the United States Govemment's decision to agree to the

Validation Treaty and, specifically, the Treaty's validation requirement had occurred. 1d.

It is without dispute that the govemment's decision to enter into the Validation Treaty in

1953 is the govemment action that imposed the obligation on plaintiff to validate his Bonds

before enforcing the Bonds in United States courts. Compl. at 3;see also 4 U.S.T.885,889.

Plaintiffdoes not allege-and the Court is not aware of-any subsequent action on the part ofthe

United States regarding this requirement to validate the Bondsa. Pl. Opp. at21-24. And so, the

undisputed facts in this matter make clear that all ofthe events necessary to fix the liability ofthe

govemment for allegedly taking plaintiff s right to enforce unvalidated German bearer bonds in

r Plaintiff inconectly argues the Court must accept "as true for purposes ofthe motion to dismiss" his

disputed factual assertion that the takings claim in this matter accrued on October 3, 2010. See Pl. Opp. at

23. It is well established that this Court is not required to accept disputed facts as true within the context

of deciding a motion to dismiss. Bloomington Hosp. v. United States,29 Fed. Cl. 286,294 (1993) (citing

Papasan v. Allain,4'18 U.5.265,283 (1986) ("ln ruling on a motion to dismiss for failure to state a claim,

fthe Court] must accept as true the complaint's undisputed factual allegations, and should construe them

in a light most favorable to the plaintiff")); see also Erickon v. Pmdus,551 U.S. 89, 94 (2007) (holding

that when deciding a motion to dismiss based upon a lack of subject-matter jurisdiction pursuant to

RCFC 12(bXl), this Court must assume that all undisputed facts alleged in the complaint are true and

must draw all reasonable inferences in the non-movant's favor.).

a

Although it is without dispute that the United States later dissolved the Board for the Validation of

German Bonds after the United States entered into the Validation Treaty, plaintiffdoes not allege that this

action affected the validation requirement imposed by the Validation Treaty. Compl. at 3; Pl. Opp. at 3.

l0

United States courts occurred at the time that the United States entered into the Validation

TteaIy. Goodrich, 434 F.3d aI 1333.

For the same reason, plaintiffs argument that his takings claim accrued in 2010-when he

first had the ability to bring suit to enforce the Bonds against Germany-is similarly without

merit. Pl. Opp. aI22-23. Plaintiff argues that his takings claim is timely because he could not

have filed suit to enforce the Bonds until Germany completed settlement payments under the

London Debt Agreement. Compl. at l2; Pl. Opp. at 22-24. But, the date on which plaintiff

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. Indeed, as discussed

above, all of the actions on the part of the United States Govemment to require bondholders to

validate their bonds before bringing suit in United States courts occurred in 1953*when the

United States entered into the Validation Treaty. Germany's actions with respect to the

settlement payments made pursuant to the London Debt Agreement simply have no bearing upon

plaintiff s claim against the United States. And so, the timing of Germany's settlement payments

under the London Debt Agreement cannot properly serve as the basis for establishing when

plaintifls takings claim accrued in this matler. Alliance, 37 F .3d at 1482.

In sum, the undisputed facts in this case make clear that plaintiff s takings claim accrued

in 1953 and that he filed this claim well after the six-year statute of limitations period for

bringing such a claim had expired. The six-year statute of limitations period set forth in section

2501 is ajurisdictional requirement for bringing suit in this Court. See Martinez v, United

States,333 F.3d 1295, 1316 (Fed. Cir.2003). And so, the Court must dismiss this claim for lack

of subject-matter jurisdictions. RCFC l2(b)(1); 28 U.S.C. $ 2501.

B. Plaintiff Lacks Standing To Bring His Takings Claim

Plaintiff s takings claim is also jurisdictionally precluded because he lacks standing to

bring the claim. "It is well established that 'only persons with a valid property interest at the

5

Plaintiffalso incorrectly argues international law should govern in this matter and that Germany's

conduct tolled the statute of limitations in this case. Compl. at 4, 35-37; Pl.Opp.at25-27. But, the

matter before this Court is a takings claim brought against the United States, not a case to enforce

sovereign debt under international law. See generally Compl. In addition, it is well established that the

six-year limitations period set forth in section 2501 is not susceptible to equitable tolling. John R Sand &

Gravel Co. v. United States,552 U.S. 130, 136 (2008).

ll

time ofthe taking are entitled to compensation."' CRV Enterprises, Inc. v. United States,626

F.3d 1241, 1249 (Fed. Cir. 2010) (quoting lryau v. United States,271F.3d, 1090, 1096 (Fed. Cir.

2001)). As discussed above, the takings alleged in this case occuned when the United States

entered into the Validation Treaty with Germany, in 1953. Compl. at l- 4,7; CRV Enterprises,

626F.3da|1250;Alliance,37F.3dat1481. Although plaintiff does not state when he acquired

the Bonds, plaintiff acknowledges that he did not own the Bonds in 1953. Pl. Opp. at 21. Given

this, it is without dispute that plaintiffdid not hold a valid property interest in the Bonds in 1953.

And so, plaintiffdoes not have standing to bring his takings claim and the Court must dismiss

this claim. CRV Enterprises, 626 F.3d aL 1249-50.

C, Plaintiff Fails To State A Plausible Fifth Amendment Takings Claim

Plaintiff also fails to state a plausible takings claim in the complaint. RCFC l2(b)(6);

see also Twombl),, 550 U.S. at 570 (plaintifffails to "state a claim to reliefthat is plausible on its

face."). It is well established that identifying a cognizable property interest is the first step in a

takings analysis. SeeAir Pegasus of D.C., Inc. v. United States,424F.3d 1206, 1213 (Fed. Cir.

2005) ("we do not reach this second step without first identifuing a cognizable property

interest."). To allege a plausible takings claim here, plaintiff must show that he had a cognizable

property intelest in the Bonds at the time of the alleged takings. Chancellor Manor v. United

States,33l F.3d 891,901-02 (Fed. Cir.2003) (citinglVyatt,27lF.3d at 1096) ("It is axiomatic

that only persons with a valid property interest at the time oftaking are entitled to

compensation."); see also United States v. Dow,357 U.S. 17, 20-21 (1958). As discussed above,

plaintiff acknowledges that the he did not own the Bonds at the time that the alleged takings

occurred-when the United States entered into the Validation Treaty in 1953. Compl. at 1-3.

Given this, plaintiff simply could not have had a cognizable property interest in the Bonds at the

time of the alleged takingso. And so, the Court must also dismiss plaintiff s takings claim for

failure to state a claim. RCFC 12(bX6).

6

Plaintiffalso fails to establish that he owned the Bonds on October 3, 2010. See generaliy Compl.; Pl.

Opp. And so, even if the Court accepts the premise that the alleged takings in this matter could have

occurred in 2010, plaintiff as not shown that he had a cognizable property interest in the Bonds at that

time. Id.

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D. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Seventh

Amendment Claim

Plaintiff s Seventh Amendment claim is also jurisdictionally barred. The Seventh

Amendment codifies the right to trial byjury in certain civil cases in federal courts. U.S. Const.

amend. VII. In the complaint, plaintiff alleges that, by entering into the Validation Treaty, "the

U.S. has deprived [him] of the right to trial by jury to fix [his] damages," in violation of the

Seventh Amendment. Compl. at8;see a/soCompl.at3, 13

This Court does not possess jurisdiction to adjudicate claims brought pursuant to the

Seventh Amendment. Jaffer v. United States, No. 95-5127, 1995 WL 592017, at *2 (Fed. Cir.

Oct. 6, 1995) (holding that a violation ofthe Seventh Amendment does not "explicitly or

implicitly obligate[ ] the federal government to pay damages," and the Seventh Amendment

cannot "support a claim for relief in the Court ofFederal Claims."); see also Harris v. United

Srares, 118 Fed. Cl. 180, 190 (2014). And so, to the extent that plaintiff alleges a Seventh

Amendment claim, the Court must also dismiss this claim for lack of subject-matter jurisdiction.

RCFC 12(bXl).7

V. CONCLUSION

In sum, the undisputed facts in this matter show that plaintiffs takings and Seventh

Amendment claims are jurisdictionally barred and warrant dismissal. Plaintiffs takings claim is

time-barred because he failed to bring this claim within six years ofthe date the takings claim

accrued-when the United States entered into the Validation Treaty with Germany in 1953. The

undisputed facts also show plaintiff lacks standing to bring his takings claim, because he did not

have a valid property interest in the Bonds at the time of the alleged takings. In addition, the

Court must also dismiss plaintiff s Seventh Amendment claim, because the Court does not

possess jurisdiction to adjudicate such claims.

?

Because the Court has determined that it does not possess jurisdiction to consider plaintiffs takings

claim, the Court does not reach the issues raised in defendant's motion to dismiss regarding whether the

Validation Treaty could interfere with plaintiffs investment-backed expectations, or whether the Court's

consideration of plaintiffs takings claim presents a political question. Def. Mot. at8-12;Def. Rep. at 6-

9.

IJ

The Court must also dismiss plaintiffs takings claim for failure to strate a claim upon

which relief may be granted, because the factual allegations in the complaint make clear that

plaintiff held no cogrdzable properg interest in the Bonds at the time of the alleged takings.

And so, for the foregoing reasons, the Court GRANTS defendant's motion to dismiss

and dismisses the complaint.

The Clerk is directed to ener judgrnent accordingly.

Each party to bear its own costs.

ITIS SOORDERED.

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