Lessors of Abchakan Village, Logar Province, Afghanistan v. Secretary of Defense

United States Court of Appeals
for the Federal Circuit
______________________
LESSORS OF ABCHAKAN VILLAGE, LOGAR
PROVINCE, AFGHANISTAN,
Appellants
v.
SECRETARY OF DEFENSE,
Appellee
______________________
2023-1523
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in No. 61787, Administrative Judge J. Reid Prouty,
Administrative Judge James R. Sweet, Administrative
Judge Richard Shackleford.
______________________
Decided: May 16, 2025
______________________
WILLIAM P ERDUE, Arnold & Porter Kaye Scholer LLP,
Washington, DC, argued for appellants. Also represented
by MICHAEL BARNICLE , P ETER VOGEL , Chicago, IL;
ELIZABETH A. L ONG, WILLIAM SHARON, New York, NY;
K EITH J. F EIGENBAUM , Paul Hastings LLP, Washington,
DC.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for appellee. Also
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 2
represented by BRIAN M. BOYNTON, VINCENT DE P AUL
P HILLIPS , J R., MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY .
______________________
Before M OORE, Chief Judge, CUNNINGHAM , Circuit Judge,
and MAZZANT , Chief District Judge.1
P ER CURIAM .
Lessors of Abchakan Village, Logar Province, Afghani-
stan (“the Lessors” or “Appellants”) appeal a decision of the
Armed Services Board of Contract Appeals (“Board”) grant-
ing the U.S. government summary judgment and denying
the Lessors’ appeal. Lessors of Abchakan Vill., Logar Prov-
ince, Afghanistan, ASBCA No. 61787, 22-1 BCA ¶ 38,234,
2022 WL 17331987 (Oct. 13, 2022) (“Decision”)
(J.A. 1–26).2 For the reasons explained below, we vacate
the judgment and remand for further proceedings con-
sistent with this opinion.
I. BACKGROUND
This appeal concerns the U.S. government’s occupation
and use of land in Afghanistan and the government’s al-
leged failure to pay the Lessors for use of the land. In this
section, we first provide an overview of the party interac-
tions giving rise to this appeal; we then describe relevant
proceedings in the courts of Afghanistan and agreements
between the United States and the former government of
1 Honorable Amos Mazzant, Chief District Judge,
United States District Court for the Eastern District of
Texas, sitting by designation.
2 Because the reported version of the Board’s deci-
sion is not paginated, citations in this opinion are to the
version of the Board’s decision included in the Joint Appen-
dix. For example, Decision at 1 is found at J.A. 1.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 3
Afghanistan; and we then turn to the procedural history
before the Board.
A.
The Lessors are residents of Abchakan Village in Logar
Province, Afghanistan. Appellants’ Br. 1; J.A. 428. On
April 23, 2009, the Lessors leased to the United States real
property (“the Land”) for a United States military base,
known as Forward Operating Base Shank (“FOB Shank”),
located in Logar Province. Decision at 2–3. Representa-
tives for the United States Army Corps of Engineers exe-
cuted the relevant lease agreements on behalf of the United
States. J.A. 115–98. A U.S. government report indicates
that before entering into the lease agreements, the United
States military had occupied portions of the Land for over
two years without paying rent. J.A. 1324 (negotiations re-
port relating to the Land stating back rent was “[n]egoti-
ated . . . for the past 2.5 years of occupation of FOB Shank
located [at a specified location] down to $0”); J.A. 1325
(memorandum recommending approval of funding request
to pay lease rents and explaining “[t]he United States has
no formal real estate interest in the areas occupied and has
trespassed on private property”).
The lease agreements had a one-year term covering
calendar year 2009. Decision at 3; see also J.A. 115–98. On
July 14, 2009, the U.S. government paid rent in the
amount of approximately $2.6 million for the lease period.
Decision at 3; see also J.A. 436. In November 2009, the
U.S. government sent the Lessors correspondence entitled
“Written Notification of Intent to Lease FOB Shank Land
from 1JAN10 Through 31DEC10,” which “request[ed] to
continue leasing the [L]and on which FOB Shank is located
from 1JAN10 to 31DEC10.” J.A. 2089. The Lessors allege
that “[f]or calendar years 2011 through [October 15, 2018],
the [U.S.] [g]overnment or its assignee occupied the [Land]
and enjoyed the full use of the [Land] without Lessor inter-
ference.” J.A. 437, 447; see also Decision at 3. The U.S.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 4
government does not dispute that “the United States con-
tinued to operate FOB Shank” through at least 2014 and
that the United States “later established Camp Dhalke on
a portion of what was then FOB Shank.” Appellee’s
Br. 5–6; Decision at 4 n.4. The Lessors also allege, and the
U.S. government does not dispute, that the U.S. govern-
ment did not pay the Lessors rent after the July 14, 2009,
payment. See Decision at 3–4; see also Appellants’ Br. 1;
Appellee’s Br. 4–5; J.A. 436–38.
In December 2009, a provincial justice department of
the Government of the Islamic Republic of Afghanistan
(“GIRoA”)3 filed a civil lawsuit (“the Afghan lawsuit”) in a
court of Afghanistan, alleging that the Land belonged to
GIRoA and that the Lessors’ ownership documents were
fraudulent. J.A. 439; see also J.A. 1233, 1292. In Au-
gust 2010, the U.S. government sent letters to the Lessors
stating:
[T]his letter provides written notification that your
ownership documents have come into question.
Although this lease has expired, you must submit
official, verifiable documentation to this office.
Verifiable documentation means approved by the
legal system of the Islamic Republic of Afghani-
stan.
If it is determined that your claim of ownership was
false, all rental monies paid to you under [the]
Lease . . . must be refunded to the United State[s.]
3 GIRoA was the government in control of Afghani-
stan at the time the leases were executed. In August 2021,
the Taliban overthrew GIRoA. See Decision at 9 n.7 (“On
August 6, 2021, the Taliban captured its first provincial
capital. On August 15, 2021, Taliban forces entered Kabul,
and the GIRoA collapsed.” (citation omitted)).
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 5
J.A. 2392; see also Decision at 3–4. On November 17, 2012,
the U.S. government sent a letter to the Lessors, indicating
that the Land ownership had been in dispute for many
years. Decision at 4; J.A. 1783. The letter stated that
“[b]ecause of those concerns, the United States Govern-
ment has stopped all lease actions and payments until the
land ownership is clearly and legally identified.” J.A. 1783.
B.
Relevant to this appeal are several proceedings in the
courts of Afghanistan, as well as interactions between the
United States and GIRoA.
On September 30, 2014, the United States and GIRoA
entered into a Bilateral Security Agreement. Decision at 4.
Under the Bilateral Security Agreement, GIRoA “pro-
vide[d] access to and use of the agreed facilities and areas,
as defined in paragraph 7 of Article 1.” J.A. 1178; Decision
at 4. The Bilateral Security Agreement Article 1(7) defined
“[a]greed facilities and areas” as “the facilities and areas in
the territory of Afghanistan provided by Afghanistan at the
locations listed in Annex A, and such other facilities and
areas in the territory of Afghanistan as may be provided by
Afghanistan in the future, to which United States
forces . . . shall have the right to access and use pursuant
to this Agreement.” J.A. 1171; Decision at 4. Annex A
listed several facilities not including FOB Shank but envi-
sioned use of “other facilities and areas at other locations
in Afghanistan as may be agreed and authorized by the
Minister of Defense.” J.A. 1197; Decision at 4–5. By 2014,
FOB Shank “was the third largest U.S. base in Afghani-
stan . . . , housing nearly 5,200 personnel.” J.A. 1925; see
also Decision at 4 n.4. In 2014, the United States turned
FOB Shank over to GIRoA. Decision at 4 n.4. As noted
above, however, the United States later established Camp
Dhalke on a part of what was then FOB Shank. Id.
Meanwhile, the Afghan lawsuit proceeded. According
to a declaration submitted on behalf of the Lessors, in 2009,
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 6
an Afghan provincial court dismissed GIRoA’s claims, and
GIRoA then appealed that decision. See J.A. 1292. A series
of appeals and decisions of Afghanistan courts followed. In
2015, an Afghan appellate court issued a decision in the
Lessors’ favor. Decision at 5; J.A. 249, 1784, 2092. Based
on the Lessors’ purported ownership documents, which in-
clude a deed and tax and water documents, the Afghan ap-
pellate court held that GIRoA’s claims “were not proved.”
J.A. 2092; see also J.A. 249, 1784. GIRoA appealed to the
Afghanistan Supreme Court. Decision at 5.
On December 19, 2017, while the Afghan lawsuit was
pending before the Afghanistan Supreme Court, GIRoA
provided the United States with a declaration (“the 2017
Declaration”) executed by GIRoA’s Minister of Defense.
Decision at 5; J.A. 1216; see also J.A. 1214–19. The 2017
Declaration indicates that the Minister of Defense “author-
ize[d] Camp Dhalke and its expansion into FOB
Shank . . . as an Agreed Facility and Area for the use of
U.S. Forces in accordance with the [Bilateral Security
Agreement].” J.A. 1216. The 2017 Declaration was specif-
ically “executed in accordance with Annex A of the [Bilat-
eral Security Agreement].” Id. The 2017 Declaration
further states that “GIRoA covenants that it has the legal
authority over the [L]and necessary to effect this agree-
ment and authorization.” Id. It also states that “[a]ny and
all claims made against the Camp Dhalke and FOB Shank
land or regarding the ownership of this [L]and are the re-
sponsibility of GIRoA and shall be resolved in full by
GIRoA.” Id. On February 20, 2018, the Afghanistan Su-
preme Court issued a decision (“the 2018 Remand Deci-
sion”) “repeal[ing]” the Afghan appellate court’s 2015
decision and remanding the case. Decision at 7; see
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 7
J.A. 1232–41.4 In the 2018 Remand Decision, the Afghan-
istan Supreme Court determined that GIRoA “was not
given the opportunity to prove [its] claims reflecting [the]
fraudulent deed document” and that “th[e] case re-
quire[d] . . . a thorough investigation.” J.A. 1240. The Af-
ghanistan Supreme Court referred the case to another
Afghan court; the case later was transferred to the Special
Appeals Court for Government Land Usurpation Cases
(“Land Court”). See J.A. 1293, 1302, 1373.
On October 3, 2018, the GIRoA Ministry of Defense
provided the United States with another declaration (“the
2018 Declaration”) regarding ownership of the land on
which FOB Shank and Camp Dhalke were located. Deci-
sion at 8; J.A. 1221. The 2018 Declaration stated:
The Ministry of Defense (MoD) hereby declares,
acknowledges and validates its prior Declaration of
19 December 2017 authorizing the use of FOB
Shank and Camp Dhalke, asserting GIRoA land
ownership over this area, and accepting full re-
sponsibility for any and all land claims that may
arise over the use of this area, including accepting
for resolution any such land claims filed against
the United States Government.
J.A. 1221.
On August 11, 2021, after a property investigation, the
Land Court dismissed GIRoA’s claim to the Land (“the
4 The parties provided a different translation of the
2018 Remand Decision at J.A. 973–80. For purposes of this
appeal, we see no meaningful difference between the pro-
vided translations. Compare J.A. 1240 (explaining the
2015 decision was “repealed”), with J.A. 979–80 (explain-
ing the 2015 decision was “annulled”). Throughout this
opinion, we cite to the translation provided at
J.A. 1232–41.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 8
2021 Decision”). Decision at 8–9; J.A. 1305 (“unanimously
dismiss[ing] the claim made by . . . the [GIRoA] govern-
ment representative”). The Land Court held that the
claims made by GIRoA’s attorney were “not verified” and
ordered that GIRoA “shall not bother the [Lessors] and
their attorneys from now on regarding the claimed prop-
erty.” J.A. 1305.
Shortly after the Land Court issued its 2021 Decision,
the Taliban overthrew GIRoA. See Decision at 9 n.7. The
fall of GIRoA raised questions about whether the Taliban
would “implement judgments issued by the courts of the
previous administration,” including the 2021 Decision.
J.A. 2362. However, on February 15, 2022, the Afghani-
stan Supreme Court, under the new Taliban regime, issued
an order—or “fatwa”5 (“the 2022 Fatwa”)—directing that
the 2021 Decision “be implemented.” J.A. 1596.
C.
We now turn to the procedural history before the
Board. On April 13, 2018, the Lessors submitted to the
U.S. Army Corps of Engineers a certified claim letter de-
manding approximately $28 million from the Corps for un-
paid rent, interest, and deferred payment losses. Decision
at 10; J.A. 38, 93, 112. On September 4, 2018, the Corps
issued a contracting officer’s final decision denying the
claim. Decision at 10; J.A. 27–29. The Lessors appealed to
the Board, J.A. 423, and then filed a five-count complaint.
J.A. 428–47; see also Decision at 10.
On December 13, 2019, the U.S. government moved to
dismiss on the ground that the Lessors’ counsel had no au-
thority to act on behalf of the Lessors. J.A. 537–48; see also
Decision at 1. On July 21, 2021, the Board denied the U.S.
5 “A fatwa is a legal ruling or opinion given by a rec-
ognized authority on Islamic law.” Decision at 10 n.8.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 9
government’s first motion to dismiss based on that ground.
Decision at 1; J.A. 1091–97.
On October 18, 2021, the U.S. government filed a sec-
ond motion to dismiss and motion for judgment on the
pleadings, arguing that the Lessors’ claims were:
(1) barred by the act of state doctrine; (2) unripe and not
justiciable due to the ongoing judicial proceedings in the
Afghanistan courts; and (3) inadequately pled.
J.A. 1136–38; see also J.A. 1131–66. The parties submitted
sur-replies, J.A. 1547–85, 2273–322, but the Board admin-
istrative judge did not hear oral argument on the govern-
ment’s motion. See J.A. 80–92.
On October 13, 2022, the Board issued its decision. De-
cision at 1–26. The Board converted the government’s mo-
tion to dismiss for failure to state a claim to one for
summary judgment “because the parties rel[ied] upon ma-
terials outside of the pleadings.” Id. at 2. The Board then
granted summary judgment in favor of the U.S. govern-
ment on two grounds. Id.
First, the Board held that the Lessors “failed to raise a
genuine issue of material fact suggesting that they owned
the Land.” Id. at 11. The Board “decline[d] to recognize”
the 2021 Decision and 2022 Fatwa. Id. at 13; see also id.
at 12–16. The Board treated the 2018 Remand Decision as
a “final and conclusive judgment,” id. at 17, entitled to
recognition, and thus triggering issue preclusion. Id.
at 16–19. The Board also found that “no reasonable fact-
finder” could rely on the Lessors’ ownership documents be-
cause “the tax and water rights documents . . . were insuf-
ficient to cover the Land” and the “deed’s handwriting
differs from the handwriting on prior and subsequent
deeds.” Id. at 19.
Second, the Board held that “to provide [the Lessors]
with the relief that they seek . . . would violate the act of
state doctrine.” Id. at 20. The Board reasoned that, in the
2017 and 2018 Declarations, GIRoA “ha[d] taken the
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 10
official act within its territory of asserting its ownership of
the Land,” id. at 20, and that granting relief to the Lessors
“would require [the Board] to declare invalid that GIRoA
official act of asserting its ownership over the Land.” Id.
at 21.
The Lessors timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(10).
II. STANDARD OF REVIEW
“We review de novo the Board’s conclusions of law, in-
cluding grants of summary judgment, and the interpreta-
tion of a government contract.” Cooper/Ports Am., LLC v.
Sec’y of Def., 959 F.3d 1373, 1377 (Fed. Cir. 2020) (internal
quotation marks and citations omitted). “Summary judg-
ment is appropriate when the record, when examined in a
light most favorable to the non-movant, indicates that
‘there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law.’” Ryste & Ricas,
Inc. v. Harvey, 477 F.3d 1337, 1340 (Fed. Cir. 2007) (quot-
ing Flexfab L.L.C. v. United States, 424 F.3d 1254, 1259
(Fed. Cir. 2005)).
“[T]he decision of the [Board] on a question of fact is
final and conclusive and may not be set aside unless the
decision is—(A) fraudulent, arbitrary, or capricious; (B) so
grossly erroneous as to necessarily imply bad faith; or
(C) not supported by substantial evidence.” 41 U.S.C.
§ 7107(b)(2)(A)–(C); see also Boeing Co. v. Sec’y of Air Force,
983 F.3d 1321, 1333 (Fed. Cir. 2020).
III. D ISCUSSION
Before this court, the Lessors argue that the Board
erred in concluding that (1) the Lessors failed to raise a
genuine issue of material fact regarding their ownership of
the Land, see Appellants’ Br. 19–20; see also id. at 23–46;
and (2) the Lessors’ contractual claims are barred by the
act of state doctrine. Id. at 22; see also id. at 46–60. The
U.S. government addresses the issues that the Lessors
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 11
raise, Appellee’s Br. 25–35, 38–43, but also argues that we
should affirm the Board’s grant of summary judgment be-
cause the Lessors cannot establish mutual intent to con-
tract after 2009, id. at 15–19, and the Lessors’ claims are
espoused and extinguished, id. at 36; see also id. at 21–23,
35, 37–38. We address each argument in turn.
A.
The Lessors argue that the Board erred in granting
summary judgment to the government because the Lessors
raised genuine issues of material fact regarding ownership
of the Land. See Appellants’ Br. 23. First, the Lessors ar-
gue the U.S. government bore—and failed to carry—the
burden of proving that the Lessors do not own the Land.
Id. at 23–26. Second, the Lessors argue that the Board
erred by not recognizing the 2021 Decision of the Land
Court. Id. at 28–37. The Lessors argue that the 2021 De-
cision and 2022 Fatwa prove as a matter of law that the
Lessors own the Land or, at minimum, raise genuine issues
of material fact precluding granting summary judgment to
the U.S. government on this issue. Id. at 26. Third, the
Lessors argue that their deed, tax documents, and water-
rights documents separately raise genuine issues of mate-
rial fact and that the Board’s refusal to credit these docu-
ments was improper. Id. at 38–45.
The U.S. government counters that the burden of prov-
ing land ownership should properly be on the Lessors as
part of their burden to show a valid contract. Appellee’s
Br. 15–16. Regarding the genuine issues of material fact
that the Lessors allege, the U.S. government primarily
points back to the Board’s findings. See id. at 38–43.
We agree with the Lessors that the Board erred in
granting summary judgment to the government because
the record before us, “when examined in a light most favor-
able to the non-movant,” fails to show that “there is no gen-
uine issue of material fact and the movant is entitled to
judgment as a matter of law.” Ryste & Ricas, 477 F.3d at
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 12
1340 (quoting Flexfab, 424 F.3d at 1259). We find the gov-
ernment’s arguments to the contrary unpersuasive.
i.
We start with the burden of proof. We conclude that
the Board did not err by placing the burden on the Lessors
to show they owned the Land. As a practical matter, when
“one party has superior access to the evidence needed to
prove [a] fact[,] . . . that party must bear the burdens of
proof.” 21B Charles Alan Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure § 5122 (2d ed. 2005).
In this case, the Lessors are the purported landowners, and
they reside in Afghanistan. As compared to the U.S. gov-
ernment, the Lessors have superior access to the evidence
needed to prove their ownership of the Land, which is also
located in Afghanistan. Accordingly, we decline to disturb
the Board’s placement of the burden of proof regarding
ownership.
ii.
We next turn to the Lessors’ contentions that the Board
erred in not recognizing the 2021 Decision. This court has
recognized that, “at least as of 2008, seven types of docu-
ments may serve as proof of land ownership” under GIRoA
law, including “documents of a legal court.” Sharifi v.
United States, 987 F.3d 1063, 1068 (Fed. Cir. 2021). The
Lessors seek to rely on the 2021 Decision to prove that they
own the Land. See, e.g., Appellants’ Reply Br. 2. We do not
decide whether the 2021 Decision conclusively proves own-
ership of the Land. However, we conclude that the Board
erred in its non-recognition analysis and in resolving this
issue at summary judgment.
Ownership of the Land is a material fact question over
which there is a genuine dispute. In the 2021 Decision, the
Land Court found “the [L]and is privately-owned” by the
individuals and residents of Abchakan Village and deter-
mined that the claims made by GIRoA’s attorney were “not
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 13
verified by the court.” J.A. 1304–05. In resolving Land
ownership at summary judgment, the Board based its de-
cision in part on “exercis[ing] [its] discretionary power and
declin[ing] to recognize [the 2021 Decision] under Restate-
ment [(Fourth) of Foreign Relations Law of the United
States (“Restatement”)] § 484 [(2018)].” Decision at 13; see
also id. at 12–14. But the Board erred in its analysis lead-
ing to its nonrecognition conclusion.
The Board relied on three of the nine discretionary
grounds outlined in Restatement § 484, which states:
To the extent provided by applicable law, a court in
the United States need not recognize a judgment of
a court of a foreign state if: (a) the party resisting
recognition did not receive adequate notice of the
proceeding in the foreign court in sufficient time to
enable it to defend; . . . (g) the judgment was ren-
dered in circumstances that raise substantial
doubt about the integrity of the rendering court
with respect to the judgment; [or] (h) the specific
proceeding in the foreign court leading to the judg-
ment was not compatible with fundamental princi-
ples of fairness . . . .
The record here has not been developed sufficiently to sup-
port the Board’s conclusion based on these grounds.6
6 The government failed to address these specific
grounds on appeal. The government primarily argued that
“[the Lessors] fail to persuasively explain how the 2018 Af-
ghan Supreme Court decision [i.e., 2018 Remand Decision]
could be reconciled with the subsequent Afghan court deci-
sions [i.e., including the 2021 Decision].” Appellee’s Br. 40.
But for the reasons explained later in this opinion, the 2018
Remand Decision is not a final decision entitled to preclu-
sive effect. See infra at 15–16.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 14
First, the Board concluded GIRoA “did not receive no-
tice of the proceedings in sufficient time to enable it to de-
fend” its position before the Afghanistan court on remand
following the 2018 Remand Decision and thus found that
the Afghanistan court “failed to provide the GIRoA with
notice and an opportunity to be heard.” Decision at 13; see
also id. at 9; Restatement § 484(a). But there is simply not
enough evidence in the record before us to conclude as a
matter of law that any notice or opportunity to be heard
was lacking. The Board only cited a declaration from the
government’s expert, containing allegations made by a pur-
ported prosecutor for GIRoA, to support its lack of notice
conclusion. See Decision at 9 (citing J.A. 1374 ¶ 17). When
viewing the record in a light most favorable to the Lessors,
we conclude that the Board prematurely decided a material
factual question, adequacy of notice, that required further
factual development.
Second, the Board failed to explain why the proceed-
ings before the Land Court, which issued the 2021 Decision
before the fall of GIRoA, were not “compatible with funda-
mental principles of fairness,” Restatement § 484(h), be-
yond referencing these same “notice and opportunity to be
heard” concerns. Decision at 13, see also id. at 12, 14. We
are similarly unconvinced, without further development of
the facts, that this ground applies or was appropriately re-
solved at summary judgment.
Third, the Board erred in concluding that the 2021 De-
cision “was rendered in circumstances that raise substan-
tial doubts about the integrity of the rendering court with
respect to the judgment,” Decision at 13, because this
ground of nonrecognition “requires a showing of corruption
in the particular case that had an impact on the judgment
rendered.” Restatement § 484(g) cmt. i. The Board did not
address the corruption requirement, and the government
has not made such a showing of corruption. Accordingly,
we conclude that the Board erred in its analysis of each of
the Restatement § 484 grounds and thus erred by deciding
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 15
at the summary judgment stage that the 2021 Decision was
not entitled to recognition.
We do not decide whether the 2021 Decision conclu-
sively proves ownership of the Land. Nor do we decide that
the 2021 Decision was entitled to recognition as a foreign
judgment. We conclude only that the Board erred in its
analysis that led it to refuse to recognize the 2021 Decision
and in resolving the Land ownership issue at the summary
judgment stage.7
iii.
The Lessors identify three other types of documents
that they allege raise genuine issues of material fact: a
deed, water-rights documents, and tax documents. Appel-
lants’ Br. 38–39. The Board found that those documents do
not raise genuine issues of material fact because (1) the
2018 Remand Decision was a final and conclusive judg-
ment that created issue preclusion, Decision at 17; and
(2) no reasonable factfinder could conclude that the docu-
ments establish that the Lessors owned the land, id. at 19.
We conclude that the Board erred in both determinations.
The 2018 Remand Decision is not “a final, conclusive,
and enforceable judgment” entitled to preclusive effect. Re-
statement § 481 (“[A] final, conclusive, and enforceable
judgment of a court of a foreign state granting or denying
recovery of a sum of money, or determining a legal contro-
versy, is entitled to recognition by courts in the United
States.”); see also Restatement § 487 (“A foreign judgment
entitled to recognition under [Restatement] § 481 is given
the same preclusive effect by a court in the United States
7 The Board also declined to recognize the
2022 Fatwa. Decision at 13. Because we find that the
Board erred in granting summary judgment in light of the
2021 Decision, we do not need to separately address the
2022 Fatwa to decide this case.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 16
as the judgment of a sister State entitled to full faith and
credit.”). Issue preclusion only applies if the relevant issue
was decided in a prior action that “has been finally adjudi-
cated on the merits.” Jones v. United States, 846 F.3d
1343, 1361 (Fed. Cir. 2017).
The 2018 Remand Decision did not “finally adjudicate[]
on the merits” the relevant issues. Id. In the 2018 Remand
Decision, the Afghanistan Supreme Court remanded the
case because it “require[d] further and a thorough investi-
gation[;]” the lower court “had not considered” GIRoA’s
claim regarding the deed; and GIRoA had not been given
an “opportunity to prove [its] claims” as to the allegedly
fraudulent deed. J.A. 1240. These open issues show that
the 2018 Remand Decision was not a final decision. There
was no reason for the Board to consider the 2018 Remand
Decision as “realistically . . . the final and conclusive recog-
nizable decision on who owned the Land” due to the over-
throw of GIRoA. Decision at 17 n.16. Moreover, the 2021
Decision, which was decided after the 2018 Remand Deci-
sion, found in favor of the other party. See J.A. 1304–05.
While we do not expect to get another final decision from
the Afghan court system due to the fall of GIRoA, neither
the Board nor the government on appeal cites precedent
requiring us to consider the 2018 Remand Decision final.
At oral argument, the government’s counsel conceded that
“the 2018 [Remand] Decision is not final” and that issue
preclusion does not apply. Oral Arg. at 27:37–27:58,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-1523_07092024.mp3. In sum, the Board erred by giving
the 2018 Remand Decision preclusive effect.
The Board further erred by resolving material factual
issues at the summary judgment stage relating to the deed,
tax documents, and water rights documents provided by
the Lessors. The 2021 Decision shows the Land Court re-
ceived information indicating that the Lessors possess a
deed to the Land. J.A. 1303 (2021 Decision referring to “le-
gal deed no. 367, dated December 2, 1932[,] issued by
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 17
Kulangar Court in Logar”). The Board found that “the
Land deed’s handwriting differs from the handwriting on
prior and subsequent deeds, so the Land deed contains in-
dicia of fraud.” Decision at 19. In making this finding at
summary judgment, the Board erred because determining
whether the deed is fraudulent requires credibility deter-
minations and weighing evidence, both of which are inap-
propriate during the consideration of a motion for
summary judgment. See, e.g., Rorrer v. City of Stow,
743 F.3d 1025, 1038 (6th Cir. 2014) (“Credibility judgments
and weighing of the evidence are prohibited during the con-
sideration of a motion for summary judgment; rather, the
evidence should be viewed in the light most favorable to the
non-moving party.” (citation omitted)); Nyari v. Napoli-
tano, 562 F.3d 916, 922 (8th Cir. 2009) (“It is well estab-
lished that courts should neither weigh evidence nor make
credibility determinations when ruling on a motion for
summary judgment.”); cf. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986) (explaining, in context of Fed. R.
Civ. P. 56, that “at the summary judgment stage the
judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine
whether there is a genuine issue for trial”).8 And even if
the Board is correct that the “taxes and water rights evi-
denced in [the documents provided by the Lessors] were in-
sufficient to cover the Land,” Decision at 19, that also
raises material factual issues—namely, what, if any, prop-
erty rights the Lessors have that are relevant to the Land
and what, if any, portion of the Land those rights cover.
8 While the Board is not bound by the Federal Rules
of Civil Procedure, Rule 7(c)(2) of the Armed Services
Board of Contract Appeals states that “the Board looks to
Rule 56 of the Federal Rules of Civil Procedure for guid-
ance” “[i]n deciding motions for summary judgment.”
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 18
When examining the record in a light most favorable to
the non-movant, we conclude that the Board erred in de-
termining that “the documents fail to raise a genuine issue
of material fact suggesting that [the Lessors] owned the
Land.” Id. at 19. The evidence in this case, including but
not limited to the 2021 Decision and the deed, would allow
a reasonable factfinder to conclude that the Lessors owned
the Land.
B.
The Lessors argue that the Board erred in granting
summary judgment to the U.S. government under the act
of state doctrine. Appellants’ Br. 46. The Lessors argue
that the Board’s conclusion that granting relief to the Les-
sors would impermissibly invalidate the Declarations was
wrong for four separate reasons, id. at 46–47: (1) the Dec-
larations were not official sovereign acts, id. at 47–52;
(2) granting the Lessors relief would not invalidate the
Declarations, id. at 52–55; (3) the policies underlying the
act of state doctrine weigh against applying the act of state
doctrine here, id. at 55–58; and (4) even if the act of state
doctrine applied here, it does not bar all the Lessors’
claims, id. at 58–60.
The U.S. government contends that the act of state doc-
trine forecloses the Lessors’ claims because “[t]he case un-
questionably turns on the validity of the position taken by
GIRoA in relations between it and the United States.” Ap-
pellee’s Br. 25. The U.S. government further argues that
the Lessors cannot establish ownership of the land without
the Board invalidating GIRoA’s assertion that the land was
public land. Id. at 28. In the U.S. government’s view,
GIRoA acted in its sovereign capacity when issuing the
Declarations, and the Declarations formally added an area
to the Bilateral Security Agreement’s list of agreed facili-
ties and areas. Id. at 30. The U.S. government also argues
that none of the policies underlying the act of state doctrine
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 19
weigh against applying the act of state doctrine in this
case. Id. at 31.
“Under [the act of state] doctrine, the courts of one
state will not question the validity of public acts (acts jure
imperii) performed by other sovereigns within their own
borders . . . .” Republic of Austria v. Altmann, 541 U.S.
677, 700 (2004); see also Restatement § 441. There is a fac-
tual predicate for the act of state doctrine to apply: the suit
must “require[] the [c]ourt to declare invalid, and thus in-
effective as ‘a rule of decision for the courts of this country,’
the official act of a foreign sovereign.” W.S. Kirkpatrick &
Co. v. Env’t Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990)
(quoting Ricaud v. Am. Metal Co., 246 U.S. 304, 310 (1918))
(internal citation omitted).
In the Board’s act of state doctrine analysis, see Deci-
sion at 19–25, the Board refers to various portions of the
2017 and 2018 Declarations and seems to imply the Decla-
rations, in their entirety, are the requisite “official act[s] of
a foreign sovereign.” W.S. Kirkpatrick, 493 U.S. at 405.
But the mere issuance of the Declarations is not in itself an
act to which the act of state doctrine applies. The Board
relies on three potential sovereign acts in the Declarations:
(1) GIRoA’s statements regarding land ownership; (2) the
purported waiver9 of GIRoA’s citizens’ claims against the
9 The Board referred to “GIRoA’s official act of waiv-
ing its citizens’ claims against the United States related to
the Land.” Decision at 21. Though the Board used the
term “waive[r],” id., the Board appeared to be referring to
GIRoA’s covenant to “take full responsibility of any and all
land cla[i]ms made regarding ownership,” J.A. 1221, and
related statements in the Declarations. See Decision at 21.
We do not decide here whether such covenants constitute a
waiver of GIRoA’s citizens’ claims against the United
States related to the Land. We merely use the term waiver
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 20
United States related to the Land; and (3) the expansion of
the Bilateral Security Agreement to include Camp Dhalke
and FOB Shank as an agreed facility. See Decision at 21,
19–20, 22–25. We conclude that the Board erred by deter-
mining at the summary judgment stage that any of these
potential acts triggers the act of state doctrine.
First, the Declarations’ statements of land ownership
were not official sovereign acts to which the act of state
doctrine applies. The act of state doctrine “is typically ap-
plied to tangible acts, like the expropriation of property.”
PNC Fin. Servs. Grp., Inc. v. Comm’r, 503 F.3d 119, 126
(D.C. Cir. 2007); see also McKesson Corp. v. Islamic Repub-
lic of Iran, 672 F.3d 1066, 1073 (D.C. Cir. 2012). Here, the
Board stated that “GIRoA has taken the official act within
its territory of asserting its ownership of the Land.” Deci-
sion at 20; see also id. at 21. But the Declarations do not
take or expropriate the Land as an official act. See
J.A. 1216, 1221–22. Instead, in the Declarations, GIRoA
appears to have recognized that ownership was an ongoing
controversy, as evidenced by GIRoA’s “covenant[s]” and
“promise[s]” to “take full responsibility of any and all land
cla[i]ms made regarding ownership over” the Land.
J.A. 1221; see also J.A. 1216 (“GIRoA covenants that it has
the legal authority over the land necessary to effect this
agreement and authorization.” (emphasis added)). Such
recognition of a controversy is not an official sovereign act
that would need to be declared invalid for the Board to
grant the Lessors’ requested relief. Accordingly, the act of
state doctrine does not apply to GIRoA’s statements of land
ownership in the Declarations.
Second, any waiver of the Lessors’ claims by GIRoA via
the Declarations is not the kind of sovereign act to which
the act of state doctrine applies. Decision at 20–21. The
as a shorthand to refer to the Declarations’ provisions iden-
tified by the Board.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 21
act of state doctrine relates to recognizing the validity of a
foreign sovereign’s “official act” “performed within [the sov-
ereign’s] own territory.” Restatement § 441. The Supreme
Court has explained that “[i]n every case in which [the
Court] ha[s] held the act of state doctrine applicable, the
relief sought or the defense interposed would have required
a court in the United States to declare invalid the official
act of a foreign sovereign performed within its own terri-
tory.” W.S. Kirkpatrick, 493 U.S. at 405. Here, GIRoA as-
sumed responsibility for resolving in full “[a]ny and all
claims made against the Camp Dhalke and FOB Shank
land or regarding the ownership of this land.” J.A. 1216;
J.A. 1221–22. Neither the Board nor the government has
identified any precedent applying the act of state doctrine
in such a situation. The cases that the Board cites are dis-
tinguishable and instead relate to waiver provisions in
treaties. See Decision at 21 (first citing S.N.T. Fratelli
Gondrand v. United States, 166 Ct. Cl. 473, 478–79 (1964);
and then citing Pauly v. United States, 152 Ct. Cl. 838, 844
(1961)). The parties have identified no such waiver provi-
sions applicable to the facts before us.
Additionally, our sister circuit has explained that
“[a]lthough the Supreme Court has not defined the con-
tours of the ‘official action’ requirement of the act of state
doctrine, the courts of appeals have understood the concept
as referring to conduct that is by nature distinctly sover-
eign, i.e., conduct that cannot be undertaken by a private
individual or entity.” McKesson, 672 F.3d at 1073. GIRoA’s
assumption of responsibility in the Declarations is not a
distinctly sovereign act—instead, it is the type of assump-
tion of responsibility that individuals or entities can under-
take in their private capacity. See J.A. 1216 (“Any and all
claims made against the Camp Dhalke and FOB Shank
land or regarding the ownership of this land are the respon-
sibility of GIRoA and shall be resolved in full by GIRoA.”);
J.A. 1221–22 (similar). Accordingly, we conclude that any
waiver of the Lessors’ claims or assumption of
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 22
responsibility by GIRoA via the Declarations is not an offi-
cial act for purposes of the act of state doctrine.
Third, we agree with the U.S. government that the Dec-
larations’ expansion of the Bilateral Security Agreement to
include Camp Dahlke and FOB Shank as agreed facilities,
J.A. 1216, is an official act of GIRoA. Restatement § 441;
see J.A. 1221 (“acknowledg[ing]” and “validat[ing]” the
2017 Declaration). But that does not end our inquiry. To
prevail, the U.S. government must show that granting the
Lessors’ relief in this case would require the Board to de-
clare invalid the Declarations’ expansion of the Bilateral
Security Agreement. See W.S. Kirkpatrick, 493 U.S. at
405. That is not the situation here. The Board could de-
termine that the U.S. government was required to pay rent
for the period for which relief was requested without con-
cluding any part of the Declarations is invalid. Enforcing
the U.S. government’s obligation to pay rent for use of the
Land would simply trigger GIRoA’s promise to “accept[]
full responsibility for any and all land claims that may
arise over the use of [FOB Shank and Camp Dhalke],” as
envisioned in the 2018 Declaration. J.A. 1221; see also
J.A. 1216. Accordingly, granting the Lessors’ requested re-
lief would not require invalidating the Bilateral Security
Agreement, the Declarations, or any other sovereign act.
Here too, we conclude that granting the Lessors’ relief
would not violate the act of state doctrine.
Our conclusion that the act of state doctrine is not im-
plicated by the facts of this case is further supported by the
general principles underlying the doctrine. See W.S. Kirk-
patrick, 493 U.S. at 409 (indicating that in considering
whether the doctrine should be invoked, the policies under-
lying the act of state doctrine may be considered). GIRoA,
the government which perpetrated the purported act of
state, is no longer in existence. Therefore, there is no risk
of imperiling the relationship between the United States
government and GIRoA, nor is there any concern about un-
due interference with GIRoA’s acts. See, e.g., Restatement
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 23
§ 441 cmt. a (explaining the act of state doctrine reflects
“considerations of international comity and a concern
about undue interference with another sovereign’s acts”).
Any action of a tribunal in this country simply cannot in-
terfere with GIRoA’s acts going forward.
We conclude that the act of state doctrine does not bar
the Lessors’ request for relief. Accordingly, the Board erred
in granting the government summary judgment under the
act of state doctrine.10
C.
The U.S. government raises two additional issues that
it argues provide sufficient grounds for affirmance: (1) the
purported lack of mutuality of intent to contract between
the Lessors and the U.S. Army Corps of Engineers, Appel-
lee’s Br. 15–19, and (2) GIRoA’s purported espousal and ex-
tinguishment of the Lessors’ claims against the United
States related to the Land. Id. at 35–38; see also id. at
21–23. The Board did not rely on either ground as a basis
for its decision, however, and so SEC v. Chenery Corp. bars
us from affirming on those grounds. 332 U.S. 194, 196
(1947).
“It is ‘a simple but fundamental rule of administrative
law’ that reviewing courts ‘must judge the propriety of
[agency] action solely by the grounds invoked by the
agency.’” Calcutt v. FDIC, 598 U.S. 623, 624 (2023) (alter-
ation in original) (quoting Chenery, 332 U.S. at 196). “[A]n
agency’s discretionary order [may] be upheld,” in other
words, only “on the same basis articulated in the order by
the agency itself.” Burlington Truck Lines, Inc. v. United
10 Because we conclude that the Board erred in find-
ing that the act of state doctrine bars the Lessors’ request
for relief, we need not address the Lessors’ fourth argu-
ment—that even if the act of state doctrine applied, it does
not bar all the Lessors’ claims. Appellants’ Br. 58–60.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 24
States, 371 U.S. 156, 169 (1962). The Supreme Court has
recognized an exception to Chenery in narrow circum-
stances “where ‘[t]here is not the slightest uncertainty as
to the outcome’ of the agency’s proceedings on remand,”
Calcutt, 598 U.S. at 630 (alteration in original) (quoting
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 n.6 (1969)
(plurality opinion)), such as “[w]here the agency ‘was re-
quired’ to take a particular action.” Id. (quoting Morgan
Stanley Capital Grp. Inc. v. Public Util. Dist. No. 1 of
Snohomish Cty., 554 U.S. 527, 544–45 (2008)).
The U.S. government argues that the Lessors cannot
establish mutual intent to contract after 2009 and that
should conclude the appeal. Appellee’s Br. 15. But the
Board did not invoke that ground as a basis for its decision.
The Board’s decision addressed mutuality of intent to con-
tract only in the context of the land ownership dispute. See
Decision at 11. The Board did not invoke the U.S. govern-
ment’s intent to contract, or anything about intent to con-
tract post-2009, as the basis for any part of its decision.
Accordingly, we cannot affirm the Board’s decision on that
ground unless a Chenery exception applies. See Calcutt,
598 U.S. at 630. The U.S. government has not argued for
the application of an exception, nor do we see one that is
applicable. Because the Board was not required to make
any particular decision about the U.S. government’s post-
2009 intent to contract and the facts presented in this case
do not meet the high bar of showing “there is not the slight-
est uncertainty as to the outcome of the agency’s proceed-
ings on remand,” we conclude that the government’s
alternative ground for affirmance is barred by Chenery. Id.
(quoting NLRB, 394 U.S. at 767 n.6) (cleaned up).
We also cannot affirm the Board’s judgment based on
the government’s newly raised espousal and extinguish-
ment ground. Espousal occurs when one sovereign “as-
sert[s] the private claims of its nationals against another
sovereign.” Asociacion de Reclamantes v. United Mexican
States, 735 F.2d 1517, 1523 (D.C. Cir. 1984). “Once it has
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 25
espoused a claim, the sovereign has wide-ranging discre-
tion in disposing of [the espoused claim],” including
“waiv[ing] it entirely”—in other words, extinguishing the
claim. Id. Here, the government argues that in the 2017
and 2018 Declarations, “GIRoA espoused the claims of [the
Lessors] and extinguished them as against the United
States” “[b]y ‘accepting for resolution any such land claims
filed against the United States.’” Appellee’s Br. 37 (quoting
J.A. 1221).
But the U.S. government’s argument fails because the
Board relied on the act of state doctrine, not espousal or
extinguishment, as a ground for its decision. See Decision
at 19–25. The parties agree espousal and extinguishment
is an “independent defense” from the act of state doctrine.
Appellee’s Br. 36; see also Appellants’ Reply Br. 26. The
U.S. government relies on the Board’s analysis relating to
the Declarations’ purported waiver provision, which “ac-
cept[s] for resolution any such land claims filed against the
United States Government,” J.A. 1221—but that analysis
was only made relating to the act of state doctrine. See
Decision at 21. In fact, the Board did not mention espousal
in its decision, nor do the cases cited by the Board in its
waiver provision analysis refer to espousal. Id. (first citing
S.N.T., 166 Ct. Cl. at 478–79; then citing Pauly, 152 Ct. Cl.
at 844). The government also does not argue where it has
raised the issue of espousal to the Board. No Chenery ex-
ception applies, and we are barred from affirming the
Board’s decision based on this belatedly raised ground. It
is for the Board, not this court, to decide in the first in-
stance whether there is espousal and extinguishment in
this case.
Accordingly, we decline to address the merits of the
U.S. government’s arguments based on the alleged alter-
native grounds for affirmance.
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LESSORS OF ABCHAKAN VILLAGE v. DEFENSE 26
IV. CONCLUSION
We have considered the U.S. government’s remaining
arguments and find them unpersuasive. We vacate the
Board’s grant of summary judgment in the U.S. govern-
ment’s favor and remand to the Board for further proceed-
ings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs awarded to the Lessors.
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