No Billion-Dollar Payday for Terrorist Airline Bombing

WASHINGTON (CN) – The family of a man who died in the Libyan-backed bombing of a commercial airliner in 1989 will get no more than the $10 million they’ve received because despite a $1.3 billion judgment in Federal Court, they had no “realistic expectation” of collecting that much, the Court of Federal Claims ruled.

Mihai Alimanestianu was one of 170 people killed in the Libyan-sponsored bombing of United Trans Aeriens Flight 772. It blew up over Niger on Sept. 19, 1989, en route from Brazzaville in the People’s Republic of Congo to Paris, via Chad. All 156 passengers and 13 crew members died in the explosion at 35,100 feet over the Sahara Desert, 46 minutes after takeoff.

The motive was believed to have been Libyan anger at France, for supporting Chad in its 9-year war with Muammar Gaddhafi’s Libya.

“As part of the United States’ settlement with Libya, plaintiffs’ claims were referred to the Foreign Claims Settlement Commission, and plaintiffs received compensation of just over $10 million,” Judge Mary Ellen Coster Williams wrote in her Dec. 30 order granting summary judgment to the United States. “Because plaintiffs’ settlement is far less than the $1.3 billion judgment they were awarded in their District Court action, plaintiffs assert that the United States owes them additional just compensation for taking their property.”

Williams added: “The context in which the government conduct here occurred is an important factor. Plaintiffs’ property interests in their causes of action against foreign governments are necessarily constrained by their own government’s paramount right to conduct foreign affairs and concomitant right to compromise its nationals’ claims in the process.”

When the plane exploded, and Alimanestianu died, Libya could not be sued in the United States, but Congress amended the Foreign Sovereign Immunities Act in 1996 to allow plaintiffs to seek monetary compensation for injuries resulting from state-sponsored terrorism.

Alimanestianu’s family sued six Libyan officials, one of them the brother-in-law of Gaddhafi, and the District of Columbia Federal Courted awarded them $1.3 billion in 2008.

Six days later, the United States and Libya entered a claims settlement agreement as part of an effort to bring resolution to claims against Libya and to restore the country’s sovereign immunity. The District of Columbia Circuit vacated the family’s award, and the State Department granted $10 million apiece to the victims’ estates.

The Foreign Claims Settlement Commission also granted $200,000 to each of Alimanestianu’s children, denied their other claims and denied compensation to the estates of his brothers.

The family appealed, claiming the U.S. government’s “taking” of the $1.3 billion award violated the Fifth Amendment.

Judge Williams disagreed.

“In contrast to this actual recovery, plaintiffs, at the time of Libya’s terrorist act, had no reasonable expectation of any recovery at all,” she wrote. “Because the jurisdictional rules abrogating Libya’s sovereign immunity were enacted after Libya’s terrorist act, plaintiffs could not have sued Libya at the time of the injury or have had any expectation of monetary relief from Libya at that time.

“In addition, even after succeeding in their District Court action, plaintiffs had no reasonable expectation to secure monetary payment from Libya for their claims. Plaintiffs’ ability to secure payment was speculative and would have depended upon plaintiffs’ ability to enforce and collect their United States court judgment in Libya.”

In fact, Williams wrote, the U.S. government benefited the family financially.

“It is speculative whether plaintiffs would have secured any recovery from Libya absent the government’s espousal and settlement of their claims. Plaintiffs’ dissatisfaction with the settlement amount negotiated by the government and the compensation awarded by the commission do not establish a compensable taking.”

The Justice Department could not be reached for comment Tuesday.

An attorney for the family said he believed “the court failed to grapple with a key recent U.S. Supreme Court decision that we will bring to the attention of the Federal Circuit on appeal.

Richard Chassin of Becker, Glynn, Muffly, Chassin & Hosinski in New York, along with Michael Zeb Landsman and Jesse Conan, represented the family.

“The government has taken a position that they can take a claim of U.S citizens, or the president can take the claim of U.S. citizens, and not compensate them for the taking under the Fifth Amendment when it advances the goals of international diplomacy,” Chassin said. “We do not quarrel with the president’s rights to espouse these claims, but my view is that when the executive branch exercises these espousal powers by taking claims, the U.S. government has to fairly compensate the holders of those claims. Basically, I’m fighting to vindicate that principle of law.”