| Dames & Moore v. Regan
(No. 80-2078)
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| Syllabus
| Opinion
[ Rehnquist ] | Concurrence
[ Stevens ] | Concurrence
[ Powell ] |
| HTML version
PDF version | HTML version
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Dames & Moore v. Regan
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE POWELL, concurring in part and dissenting in part.
I join the Court's opinion except its decision that the nullification of the attachments did not effect a taking of property interests giving rise to claims for just compensation. Ante at 674, n. 6. The nullification of attachments presents a separate question from whether the suspension and proposed settlement of claims against Iran may constitute a taking. I would leave both "taking" claims open for resolution on a case-by-case basis in actions before the Court of Claims. The facts of the hundreds of claims pending against Iran are not known to this Court, and may differ from the facts in this case. I therefore dissent from the Court's decision with respect to attachments. The decision may well be erroneous, [n1] and it certainly is premature with respect to many claims. [p691]
I agree with the Court's opinion with respect to the suspension and settlement of claims against Iran and its instrumentalities. The opinion makes clear that some claims may not be adjudicated by the Claims Tribunal, and that others may not be paid in full. The Court holds that parties whose valid claims are not adjudicated or not fully paid may bring a "taking" claim against the United States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation's foreign policy goals by using as "bargaining chips" claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts. [n2] The extraordinary powers of the President and Congress upon which our decision rests cannot, in the circumstances of this case, displace the Just Compensation Clause of the Constitution.
1. Even though the Executive Orders purported to make attachments conditional, there is a substantial question whether the Orders themselves may have effected a taking by making conditional the attachments that claimants against Iran otherwise could have obtained without condition. Moreover, because it is settled that an attachment entitling a creditor to resort to specific property for the satisfaction of a claim is a property right compensable under the Fifth Amendment, Armstrong v. United States, 364 U.S. 40 (1960); Louisville Bank v. Radford, 295 U.S. 555 (1935), there is a question whether the revocability of the license under which petitioner obtained its attachments suffices to render revocable the attachments themselves. See Marschalk Co. v. Iran National Airlines Corp., 518 F.Supp. 69 (SDNY 1981).
2. As the Court held in Armstrong v. United States, supra, at 49:
The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
The Court unanimously reaffirmed this understanding Of the Just Compensation Clause in the recent case Of Agins v. City of Tiburon, 447 U.S. 255, 260-261 (1980).