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The Lessors of a property in Afghanistan appealed an ASBCA decision. The Board granted summary judgment to the government, finding relief to the lessors would violate the act of state doctrine. The Federal Circuit vacated and remanded, reasoning the act of state doctrine did not apply to this case.
Lessors of Abchakan Village, Logar Province Afghanistan v. Secretary of Defense, Fed. Cir. No. 2023-1523
- Background – The appeal concerned the U.S. government’s alleged failure to pay for the occupation and use of land in Afghanistan. The Lessors argued that ASBCA erred when it concluded the Lessors failed to raise a genuine issue of material fact regarding their ownership of the land and further erred by finding its contractual claims were barred by the act of state doctrine.
- Burden of Proof (Ownership) – The Lessors argued government bore the burden of proving that the Lessors did not own the land, while the government countered that the burden of proving land ownership was properly on the Lessors. The Federal Circuit concluded ASBCA did not err by placing the burden on the Lessors to show they owned the land. When a party has superior access to the evidence needed to prove a fact, that party bears the burdens of proof.
- Issues of Material Fact (Ownership) – The court ruled that the Board erred when it failed to explain why a 2021 Decision of the Land Court and three other types of documents did not create a genuine issues of material fact. While it did not rule on the sufficiency of these documents in proving ownership, the court found them to sufficient to create a genuine issue of material fact.
- State Doctrine – The Lessors also appealed ASBCA’s summary judgment to the government under the act of state doctrine. The Board had concluded that granting relief to the Lessors would impermissibly invalidate a declaration executed by the Government of the Islamic Republic of Afghanistan’s (GIRoA’s) Minister of Defense. This declaration granted the property for the use of U.S. forces. The court ruled the Board erred for the following reasons:
- Sovereign Acts: The declaration’s statements of land ownership were not official sovereign acts to which the act of state doctrine applies. The declaration did not take or expropriate the land as an official act, but rather, appeared to recognize that ownership was an ongoing controversy.
- Waiver: The state doctrine also did not apply to GIRoA’s waiver of the Lessor’s claims. In every case the state doctrine has been applied, the official act was performed within the sovereign’s own territory. Here, GIRoA assumed responsibility for resolving ownership of land.
- Impermissible Invalidation: Finally, the court ruled granting relief to the Lessors would not impermissibly invalidate the declaration because the board could have determined the U.S. government was required to pay rent without concluding the declaration was invalid.
— Case summary by Joshua Lim, Assistant Editor.
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