Chas. T. Main International Inc. v. Khuzestan Water & Power Authority

651 F.2d 800 (1981) | Cited 16 times | First Circuit | May 22, 1981

Chas. T. Main International, Inc. (Main) is an engineering firm incorporated in Massachusetts and having its principal place of business in Boston. On November 20, 1979, Main brought suit in the District Court for the District of Massachusetts against the government of Iran and various Iranian governmental entities to obtain payment for services it had rendered in Boston and Iran in connection with certain Iranian electrification projects. Chas. T. Main International, Inc. v. Khuzestan Water & Power Authority, No. 79-2304C (Main v. KWPA ). Main's claims in that case are for services alleged to have been performed under two contracts: one contract called for engineering and consulting services to develop a hydroelectric power plant on Iran's Karun River; this was with Mahab Consulting Engineers (though performed for the benefit of the Khuzestan Water & Power Authority and Iran's Ministry of Energy and Natural Resources). The other contract involved miscellaneous services under a "General Services Agreement" between Mahab and "Parsmain," an "Iranian" corporation partially owned by Main. Main's complaint contains a further allegation that the Central Bank of Iran, now Bank Markazi Iran, wrongfully failed to transmit a payment order of $378,000 authorized by Mahab. Damages totalling $3,256,787.26 are claimed.


The above suit was preceded by dramatic events. On November 4, 1979, American hostages were seized at the United States Embassy in Teheran. That hostile and unprecedented act precipitated a crisis in relations between Iran and the United States. On November 14, 1979, in response to the taking of hostages, President Carter declared a national emergency1 and ordered blocked "all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States ...." Exec. Order No. 12170, 44 Fed.Reg. 65729. The President further authorized the Secretary of the Treasury to employ all powers granted to the President under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., to carry out the blocking order. Pursuant to this authorization, the Treasury Department's Office of Foreign Assets Control (OFAC) promulgated regulations, effective November 14, 1979, prohibiting, absent a license or authorization, injunctions, attachments, judgments, or other relief, against property in which Iran or its entities had an interest. 31 C.F.R. §§ 535.201, 535.203(e), 44 Fed.Reg. 65956.

Main moved to sue the Iranian defendants a few days after the President and OFAC had acted. On November 19, 1979, it sought authority from OFAC to institute suit against the Iranian defendants, and, in conjunction therewith, to obtain injunctive relief and attachments against Iranian assets.2 On November 20, 1979, an OFAC official informed Main's representatives over the telephone, and on November 21, 1979 Main received written confirmation, that it would be given a "special license" to "initiate and prosecute judicial proceedings" and to obtain preliminary relief against Iranian property; the license specifically provided that Main was not authorized to proceed to judgment on its claims or to receive any payment from the blocked assets. (On November 23, 1979, regulations were promulgated authorizing suits against Iran and its governmental entities on terms similar to those specified in Main's license. 31 C.F.R. § 535.504, 44 Fed.Reg. 67617.) Effective November 19, 1979, all OFAC "rulings, licenses ... (and) authorizations" pertaining to Iranian assets were explicitly made revocable "at any time." 31 C.F.R. § 535.805, 44 Fed.Reg. 66834.

On November 20, 1979 the day Main commenced its action the district court approved ex parte attachments on trustee process and issued a temporary restraining order enjoining the Iranian defendants from disposing of any of their assets located in the United States. On December 12, 1979, following a hearing, the district court entered a preliminary injunction to the same effect as its earlier TRO.3 Defendants appealed the order granting the preliminary injunction, and this court heard oral argument on October 8, 1980. Further proceedings on the appeal were stayed, however, pending the outcome of ongoing negotiations for the release of the American hostages.4

On January 19, 1981, Iran released the hostages pursuant to an agreement with the United States, embodied in two Declarations of the Government of the Democratic and Popular Republic of Algeria.5 The agreement states that it is "the purpose of both parties ... to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." In furtherance of this goal, the agreement calls for the establishment of an Iran-United States Claims Tribunal (Tribunal), which will, with certain exceptions, arbitrate any such claims not settled within six months of the date of agreement; awards of the Tribunal will be "final and binding" and "enforceable ... in the courts of any nation in accordance with its laws." The United States is obligated "to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." The United States must also "act to bring about the transfer" by July 19, 1981 of all Iranian assets held in "U. S. banking institutions in the United States." One billion dollars of these assets will go directly to a security account which will be used to fund awards of the Tribunal; Iran has agreed to maintain a minimum balance of $500 million in this account until all such awards are satisfied.

On January 19, 1981, President Carter issued a series of executive orders implementing the terms of the agreement with Iran. Exec.Order Nos. 12276-12285, 46 Fed.Reg. 7913-7932. In pertinent part, these orders revoked all licenses permitting persons to exercise "any right, power or privilege" with regard to Iranian funds, securities or deposits, "nullified" all non-Iranian interests in such assets acquired subsequent to the November 14, 1979 blocking order, and required those holding blocked Iranian assets to transfer them to the Federal Reserve Bank of New York, "to be held or transferred as directed by the Secretary of the Treasury."6 See esp. Exec.Order No. 12279, 46 Fed.Reg. 7919. On February 24, 1981, President Reagan "ratified" the January 19 orders; he also ordered "suspended" all "claims which may be presented to the (Tribunal)" and provided that they "shall have no legal effect in any action now pending in any court of the United States." Exec.Order No. 12294, 46 Fed.Reg. 14111.

On February 4, 1981, Main commenced an action in the District Court for the District of Massachusetts against the United States, seeking a declaration that the executive agreement with Iran, and the implementing executive orders and Treasury Department regulations, were in excess of the President's constitutional and statutory authority; in the alternative, Main sought a declaration that the agreement effected a "taking" of Main's "property" for a public use without just compensation, in violation of the fifth amendment. Chas. T. Main International, Inc. v. United States (Main v. United States), 509 F. Supp. 1162. On March 17, 1981, following a hearing, the district court granted the government's motion to dismiss the complaint in that case, holding that "the actions of Presidents Carter and Reagan have a legal basis in the provisions of Article II of the Constitution ... as well as in the powers granted to them by the provisions of the International Emergency Economic Powers Act."

On February 23, 1981, we remanded to the district court the appeal in Main v. KWPA, for reconsideration of the grant of preliminary relief in light of the executive agreement and orders. On April 7, 1981, relying on its decision in Main v. United States, the district court dissolved the preliminary injunction and vacated the ex parte attachments. The appeals from the orders in Main v. KWPA, and from the dismissal of the complaint in Main v. United States, are consolidated.7


The primary issue before us is one of presidential authority. As this nation's leader and as the head of one of the three coordinate branches of the federal government, the President holds substantial powers, both express and implied, under the Constitution. These powers may be supplemented, in certain areas, by delegations of authority from Congress. Justice Jackson described the reach of presidential power, and its interaction with that of the legislative branch, in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S. Ct. 863, 870-71, 96 L. Ed. 1153 (1952):

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power ....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

1. The President's declaration of national emergency was accompanied by a finding, as required by the International Emergency Economic Powers Act, 50 U.S.C. § 1701, that the situation in Iran constituted "an unusual and extraordinary threat to the national security, foreign policy and economy of the United States." See note 10, infra. There is no question that the events in question constituted such an emergency.

2. Main sought a license to file (and has filed) two lawsuits the one in the United States District Court for the District of Massachusetts, and another in the United States District Court for the Southern District of New York making identical claims. In the application for a license, Main represented that it sought to recover a total amount of $2,878,787.20 (with interest and costs); the discrepancy between this figure and the $3,256,787.26 claimed in the Main v. KWPA complaint brought in the District of Massachusetts is presumably due to the fact that the $378,000 alleged owing from Bank Markazi would be offset against the amount alleged due from Mahab and the other Iranian defendants.

3. The district court ordered that The defendants Khuzestan Water & Power Authority, Mahab Consulting Engineers, Central Bank of Iran and the Government of Iran, their agents, servants, employees, attorneys and any persons in concert with them or acting on their behalf, are hereby restrained and enjoined from selling, assigning, pledging, giving, delivering or in any way encumbering or disposing of any of their assets located in the United States pending the determination of this action or until further order of the Court, except that, if otherwise permitted by the Iranian Assets Control Regulations, 31 C.F.R. part 535, or by specific license pursuant thereto, (a) the Government of Iran may use its assets located in the United States for the sole and specific purpose of maintaining diplomatic or consular offices and missions and carrying out the general diplomatic or consular functions of such diplomatic or consular offices; and (b) agencies and instrumentalities of the Government of Iran that are located in the United States, other than the defendants named herein, may pay salaries and fees of personnel employed or retained in the United States in the ordinary course of business ....

4. By order of this court, dated October 30, 1980, proceedings on the appeal were stayed until December 15, 1980. On December 11, 1980, we extended the stay, and on February 23, 1981, we remanded the appeal to the district court. See infra.

5. The negotiations which led to the agreement were authorized and supervised by the President, who, on January 19, 1981, issued a "Statement of Adherence" to the Declarations. The Declarations have never been ratified by the Senate, and are properly viewed as embodying an "executive agreement" or "international compact," rather than a "treaty." See United States v. Belmont, 301 U.S. 324, 330-31, 57 S. Ct. 758, 760-61, 81 L. Ed. 1134 (1937).

6. While the Secretary of the Treasury has ordered the transfer of Iranian assets to the Federal Reserve Bank, he has also provided that "the United States Government will not seek to impose civil or criminal sanctions on any party who does not make (such transfers)" until the President's authority to order the transfers "has been the subject of a definitive legal ruling." 46 Fed.Reg. 14335 (Feb. 26, 1981) (to be codified at 31 C.F.R. § 535.221(b)).

7. In addition, we have retained appellate jurisdiction over the original appeal from the order granting preliminary relief (which would, at this point, appear to be moot).

8. We agree with the district court that purported informal representations by Treasury Department employees could not make the license irrevocable. Nor did the slight time lapse between issuance of the license and publication of the regulations providing for revocability have such an effect. Moreover, even had Main secured its attachments without obtaining a license, it could not, in any event, have acquired interests in the Iranian assets that would have prevented the President from exercising his IEEPA powers. See infra.

9. At the time Zittman was decided, however, attachment was necessary as a means of obtaining jurisdiction over a claim against an enemy debtor. Thus, the attachments permitted in Zittman served a purpose other than as security, enabling claimants to obtain a judicial determination of the validity and amount of their claims against foreign nationals. The Foreign Sovereign Immunities Act now prohibits attachments against foreign states obtained for jurisdictional purposes. 28 U.S.C. §§ 1609 & 1610(d)(2).

10. Aside from withdrawing the power to order "vesting" of foreign assets, IEEPA further limits the President's emergency authority to situations where there is an "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States." 50 U.S.C. § 1701(a); S.Rep.No.95-466, 95th Cong., 1st Sess. 5 (1977), reprinted in (1977) U.S.Code Cong. & Ad.News 4540, 4543. See note 1, supra.

11. Section 7(c) of the TWEA draws a clear distinction between the President's power to order foreign assets "conveyed, transferred, assigned, (and) delivered" and the Alien Property Custodian's power to "seize" the assets.

12. We should point out, in addition, that there is a substantial unresolved question whether Main was ever entitled to obtain attachments and injunctions against the assets of the Iranian defendants. In enacting the Foreign Sovereign Immunities Act, Congress placed severe restrictions on litigants' ability to attach the assets of a foreign state or its instrumentalities. 28 U.S.C. §§ 1609-11. Such attachments were said to have been a source of "significant irritation" and "serious friction in United States' foreign relations." H.R.Rep.No.94-1487, 94th Cong., 2d Sess. 27 (1976), reprinted in (1976) U.S.Code Cong. & Ad.News 6604, 6626. Prejudgment attachments are authorized only against "(t)he property of a foreign state ... used for a commercial activity in the United States" and only when "the foreign state has explicitly waived its immunity from attachment prior to judgment ...." 28 U.S.C. § 1610(d). See also 28 U.S.C. § 1609 (rendering immunity from attachment "subject to existing-international agreements"). This at least suggests that it might be improper to enter an attachment which, like the preliminary injunction at issue here, purports to restrain the use of any and all property of a foreign state located in this country. We realize that there is much to be said on both sides of the issue, and do not in any way purport to decide whether the attachments and preliminary injunction obtained by Main were prohibited by 28 U.S.C. §§ 1609-11. Still, in assessing what the President took away in exercising his powers under IEEPA, it is relevant to bear in mind that a right to attachment has been considered the exception, rather than the norm, in suits by United States nationals against a foreign government.

13. Our parsing of IEEPA's multiple powers indicates that the President is authorized to: investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving any property in which any foreign country or national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States. 50 U.S.C. § 1702(a)(1)(B). Our brother argues that if Main's claim is not itself "property" in which Iran has an "interest," subject to IEEPA, its lawsuit is the "exercising" of a "right" with respect to "property," and thus subject to presidential nullification. One might also argue that other combinations of IEEPA's shopping list of words cover this case, e. g., that the lawsuit is a step leading toward "acquisition ... of ... property (of Iran)," or that it is a "transaction involving ... property." The very breadth of the powers given the President under IEEPA, and the desirability of relying on statutory rather than constitutional authority, might tempt one to find an implied congressional grant of authority. Nevertheless we feel uneasy in resting on such a construction. To say that an unliquidated claim in personam for money damages is a "right" with respect to "property," or that it is "acquisition" of "property," or that it is a "transaction involving ... property" simply because it may someday be reduced to judgment and capable of execution is to render a technical word rich in ancient teaching amorphous and all inclusive. Further militating against such a reading is the fact that the "chief objects" of the TWEA, IEEPA's predecessor, were 1) the prevention of trade with the enemy in time of war, and 2) the "conservation and utilization upon a basis of practical justice (of) enemy property found within the jurisdiction of the United States." H.R.Rep.No.85, 65th Cong., 1st Sess. 1 (1917). The Act sought to further the goal of conserving enemy property by bringing it "under the control of the Government, to be impounded or used, and to await such disposition at the close of the war as Congress may determine." Id., at 3. One contemplated "use" of such property was the satisfaction of claims of U.S. citizens. Id., at 4. Given such purposes, it would seem questionable that Congress intended claims by U.S. citizens against the enemy to be among the sorts of "enemy property" to be "impounded." While we therefore conclude that we cannot rest on any express or implied grant of power from Congress in IEEPA, we find no hint of congressional disapproval of the power to settle claims in these circumstances. Even if IEEPA does not confer such a power, it shows Congress' willingness to give the President wide discretion in dealing with issues affecting foreign assets during periods of international crisis. In addition, we are told that the President notified Congress of the agreement with Iran, as required by IEEPA, and that Congress has not registered opposition to any provision, including that purporting to suspend judicial claims and substitute arbitration.

14. As suggested in note 12, there are substantial questions, raised in the initial Main v. KWPA appeal and never resolved by this court, concerning the Iranian defendants' entitlement to immunity under the FSIA. Given our disposition of this appeal, resolution of these questions (which might require further factual development in the district court) is unnecessary; we will assume, for purposes of the present discussion, that jurisdiction was properly asserted under section 1330(a).

15. The Order attempts to define, with some particularity, the terms on which litigation may proceed. For example, claimants are permitted to commence an action in the courts "for the purpose of tolling the period of limitations" and are also entitled to assert "a counterclaim or set-off ... in any judicial proceeding pending or hereafter commenced by the Government of Iran." Moreover, "(n)othing in (the) Order shall require dismissal of any action for want of prosecution."

16. Some of the earliest settlements, such as that relating to the 1799 case of the Schooner "Wilmington Packet," 5 Miller, Treaties and Other International Acts of the United States of America 1079 (1934), involved claims of U.S. nationals stemming from the seizure of ships by foreign "privateers." Early examples of large-scale settlements of the claims of U.S. nationals against foreign governments include the 1800 and 1803 conventions between the United States and France (see 6 Moore's International Law Digest § 1056, at 1022-25 (1906)), the 1819 treaty between the United States and Spain, which included the ceding of Florida to the United States (see Comegys v. Vasse, 26 U.S. (1 Pet.) 193, 7 L. Ed. 108 (1828)), the 1868 convention between the United States and Mexico (see La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168, 44 L. Ed. 223 (1899)), and the 1871 agreement between the United States and Spain (see 2 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements Between the United States and Other Powers 1661 (1910)). See also J. B. Moore, Treaties and Executive Agreements, Sept. 1905 Pol. Science Q. 385, reprinted at 62 Cong.Rec. 13063-68 (Sept. 21, 1922) (compiling major 19th century claims settlement agreements).

17. Congress has also, from time to time, expressed its recognition and acceptance of the practice of presidential claims settlement. See, e. g., 78 Cong.Rec. 460-68 (Jan. 11, 1934); 62 Cong.Rec. 13050-71 (Sept. 21, 1922).

18. The agreement, an overall settlement of claims as between the governments and nationals of the two states, assigned to the United States all amounts "admitted to be due or that may be found to be due" on claims of the U.S.S.R. against U.S. nationals, in return for the release of the U.S.S.R. from liability for the nationalization of property owned by U.S. citizens; funds collected by the United States under the assignment would then be used to satisfy the claims of its nationals. See United States v. Pink, supra, 315 U.S. at 212-13, 62 S. Ct. at 556-57; United States v. Belmont, 301 U.S. 324, 326-27, 57 S. Ct. 758, 758-59, 81 L. Ed. 1134 (1937).

19. It can be argued that the Litvinov Assignment was a "better deal," from the perspective of certain United States claimants, than is the settlement with Iran. Moreover, the only issue directly presented in Pink was whether the United States, as assignee, could recover the assets of a nationalized branch of a Russian corporation, in derogation of the rights of the corporation's foreign creditors an action which would obviously increase the funds available to satisfy the claims of U.S. citizens. Nonetheless, the rationale used by the Court in support of the President's settlement powers would seem applicable regardless of a reviewing court's opinion of the favorableness of the overall settlement. See also Part III, infra.

20. Of course, neither the President nor Congress may exercise their powers so as to contravene the protections of the Bill of Rights, even when acting in the sphere of international relations. See Reid v. Covert, 354 U.S. 1, 15-19, 77 S. Ct. 1222, 1229-1231, 1 L. Ed. 2d 1148 (1957). Main here contends that the President's actions amount to a "taking" without "just compensation," a contention we discuss briefly infra. This issue, however, is separate from the question whether the President, as opposed to Congress, had the authority to take the action that might amount to a "taking" of "property." Since we hold that the President did possess the authority to act as he did, if and to the extent he has effected a taking of private property for a public use, Main will have a claim against the United States for just compensation. See Part III infra; Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27 & n. 16, 95 S. Ct. 335, 349-50 & n. 16, 42 L. Ed. 2d 320 (1974); Yearsley v. Ross Construction Co., 309 U.S. 18, 20-22, 60 S. Ct. 413, 414-415, 84 L. Ed. 554 (1940). See also Gray v. United States, 21 Ct.Cl. 340, 392-93 (1886) (authority to extinguish claims against the government of France "too clear for discussion," although such action may give rise to right to compensation against United States).

21. For example, FSIA did not even purport to effect changes in the related "act of state" doctrine. See Hearings on H.R.11315 before House Comm. on Judiciary, Subcomm. on Admin.Law and Govt.Rels. at 34 (June 2, 1976) (statement of Monroe Leigh, State Dept. Legal Adviser: "In this particular bill, we have been careful ... to make it clear that the bill applies only to the doctrine of sovereign immunity and does not extend to the act of state doctrine").

22. See, e. g., Hearings, note 21 supra, at 33-35 (statement of Monroe Leigh that bill will relieve State Dept. of burden); see also H.R.Rep.No.94-1487, 94th Cong., 2d Sess., at 7, reprinted in (1976) U.S.Code Cong. & Ad.News 6604, 6606 (under FSIA, "Department of State would be freed from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from an unwillingness of the Department to support that immunity"; judicial determinations of immunity "would conform to the practice in virtually every other country").

23. Contrary to Main's suggestion, a general grant of "jurisdiction" over a class of claims does not necessarily reflect an ironclad congressional policy against actions that might "interfere" with the exercise of the jurisdiction. See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801), where in spite of "jurisdiction" and, indeed, a lower court judgment against seized French property, the Supreme Court gave effect to a treaty calling for return of the property to France. Moreover, Congress's enactment of IEEPA, one year after enactment of the FSIA, demonstrates that it was not adverse to actions, taken in time of national emergency, that might undercut the viability of jurisdiction and remedies authorized by the FSIA.

24. We have already said that no right to compensation would arise from the President's nullification of Main's attachments under his IEEPA powers. See Part II A, supra. Thus, any claim for compensation would be based solely on the mandated settlement of Main's ongoing (and, minus the attachments, unsecured) court claims against Iran and its entities.

25. Of course, if the Iranian defendants would be entitled to immunity from suit in United States courts, see note 14, supra, Main will be better off with recourse to the Tribunal.

1. This case was argued on May 8. The parties have indicated an intention to seek Supreme Court review prior to the July 19, 1981 deadline for transfer of all Iranian assets held in the United States.

2. In addition, the Treaty of Amity between the United States and Iran provides: No enterprise of either High Contracting Party, including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, industrial, shipping or other business activities within the territories of the other High Contracting Party, claim or enjoy, either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject therein. Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. Art, XI, P 4, 8 U.S.T. 899, 909, (entered into force June 16, 1957). While it is disputed whether Khuzestan Water & Power Authority is engaged in a commercial enterprise within the United States, within the meaning of the Treaty, the court does not suggest that it would reach a different result were it dealing with a claim against an Iranian entity that is more obviously engaged in a commercial enterprise within the United States.

3. One might argue that a commercial branch of a foreign government should be treated like a private individual for purposes of amenability to suit, but like a foreign government for purposes of an "inherent" Presidential claims' settlement power. Yet, the FSIA suggests Congressional hostility to this additional legal complexity. The practicalities of foreign affairs have not been shown to require any such distinction, particularly since Congress, in IEEPA, has specifically authorized the President to take the action at issue here.

4. The "right to compensation" here would, in my view, arise out of the President's assertion of an IEEPA power, not the treaty or executive agreement with Iran or Algeria. Thus, jurisdiction is likely to lie in the Court of Claims. See Hughes Aircraft Co. v. United States, 209 Ct. Cl. 446, 534 F.2d 889, 902-06 (Ct.Cl.1976). Of course, for reasons that the court points out, the value of what was taken may be very small.

5. The FSIA was designed in part to take from the Executive Branch the power to determine in each individual case, on the basis of foreign policy considerations, whether the courts should dismiss a claim on grounds of sovereign immunity. H.R.Rep.No.1487, 94th Cong., 2nd Sess. 6-7, 12 (1976). And, once sovereign immunity disappears in a particular case at least one part of the rationale underlying the President's historical authority to settle the case over objection also disappears. Whether the other part of that rationale practical consideration of foreign policy is sufficient to support an inherent Presidential power is the difficult question that here need not be decided.

Back to top