Case: 22-1995 Document: 53 Page: 1 Filed: 02/23/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ASKAN HOLDINGS, LTD.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1995
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01793-CNL, Judge Carolyn N. Lerner.
______________________
Decided: February 23, 2024
______________________
TERESA NICOLE TAYLOR, Taft Stettinius & Hollister
LLP, Washington, DC, argued for plaintiff-appellant.
NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN
E. WHITE, JR.
______________________
Before DYK, CLEVENGER, and CHEN, Circuit Judges.
Case: 22-1995 Document: 53 Page: 2 Filed: 02/23/2024
2 ASKAN HOLDINGS, LTD. v. US
DYK, Circuit Judge.
Askan Holdings, LTD. (“Askan”), brought suit against
the United States in the Court of Federal Claims (“Claims
Court”), alleging a Fifth Amendment taking. The Claims
Court granted the government’s motion to dismiss on four
grounds. Because we agree that collateral estoppel pre-
cludes Askan from bringing these claims and that, in any
event, 28 U.S.C. § 1500 deprives the Claims Court of sub-
ject matter jurisdiction, we affirm. We do not reach the
Claims Court’s other grounds for dismissal. 1
BACKGROUND
Askan is a Seychelles-registered aircraft holding com-
pany which is wholly owned by Transylvania International
Airlines SRL (“TIA”). Askan was created solely to purchase
an Airbus A320 and provide the aircraft to TIA so TIA
could maintain the statutorily required number of commer-
cial flights to operate a commercial airline in Europe.
Askan entered into an agreement with JetPro Interna-
tional, LLC (“JetPro”), an American company, to purchase
an Airbus A320. On January 4, 2016, Askan made a down
payment in the amount of $923,000. But the transaction
was never completed. JetPro cancelled the transaction,
and Askan requested the return of its down payment.
JetPro attempted to return the down payment, but the re-
turn was blocked by the Office of Foreign Assets Control
(“OFAC”) when the funds were routed through Deutsche
Bank Americas in New York City, New York.
Askan petitioned OFAC to unblock the funds several
times and was denied each time. On June 2, 2020, Askan
filed for a declaratory and injunctive relief in the United
1 The other grounds were that Askan lacked suffi-
cient contacts with the United States to establish standing
and that the case is moot because Askan received the funds
at issue, with interest.
Case: 22-1995 Document: 53 Page: 3 Filed: 02/23/2024
ASKAN HOLDINGS, LTD. v. US 3
States District Court for the District of Columbia. On No-
vember 9, 2020, Askan amended its complaint in the dis-
trict court after learning that, despite receiving a license
for its funds from OFAC, the money had escheated to the
State of New York Office of Comptroller under New York’s
laws governing abandoned property. In March 2021,
Askan received its blocked funds plus interest.
During the pendency of the district court litigation, on
December 16, 2020, Askan also filed its first complaint in
the Claims Court (Askan I), alleging that the government’s
actions constituted a Fifth Amendment taking. Askan
Holdings, Ltd. v. United States, 155 Fed. Cl. 216 (2021)
(“Askan I”); Appellant Br. 10. According to Askan, “[d]ue
to a clerical error, the wrong complaint was filed,” Appel-
lant’s Br. 10, in that the complaint alleged a takings claim
but mistakenly cited the Due Process Clause of the Fifth
Amendment as the source of the takings liability. 2 The
Claims Court in Askan I dismissed the complaint for lack
of subject matter jurisdiction, finding that 28 U.S.C. § 1500
“prevents redundant litigation by barring this court from
exercising jurisdiction over a claim when a plaintiff has a
case pending in another court ‘for and in respect to’ the
same claim.” Askan I, 155 Fed. Cl. at 225. The Claims
Court concluded “[w]hen the plaintiff filed its original com-
plaint in this court, the plaintiff had claims based on the
same operative facts pending in the U.S. District Court for
the District of Columbia.” Id.
2 Askan filed an amended complaint in Askan I to
address the clerical error, but, as the Claims Court held,
the amended complaint is not relevant to the Section 1500
analysis. Askan I, 155 Fed. Cl. at 221 (“The Court must
consider § 1500’s jurisdictional bar only in relation to the
plaintiff’s original complaint in this court, not its amended
complaint.”); see Res. Invs., Inc. v. United States, 785 F.3d
660, 669 (Fed. Cir. 2015).
Case: 22-1995 Document: 53 Page: 4 Filed: 02/23/2024
4 ASKAN HOLDINGS, LTD. v. US
On September 2, 2021, while the district court case was
still pending, 3 Askan filed a second complaint in the Claims
Court (Askan II), alleging a Fifth Amendment takings
claim, correcting the alleged clerical error from the previ-
ous case. Askan deleted references to the Due Process
Clause and substituted references to the Fifth Amendment
takings clause. Despite this change, the Claims Court
found “the factual allegations concerning the government’s
conduct in Askan I and the instant case are the same[.]”
Askan Holdings, Ltd. v. United States, No. 21-1793C, 2022
WL 1512730, at *4 (Fed. Cl. May 12, 2022) (“Askan II”).
The Claims Court dismissed the complaint, finding that is-
sue preclusion barred the second complaint (Askan II) be-
cause the second complaint was virtually identical to the
first complaint (Askan I), and that Section 1500 applied re-
gardless of collateral estoppel. Id. at *5, *7.
Askan timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
“We review the Claims Court’s decision to dismiss a
case for lack of subject matter jurisdiction de novo.” Cent.
Pines Land Co. v. United States, 697 F.3d 1360, 1363 (Fed.
Cir. 2012).
Section 1500 provides that “[t]he United States Court
of Federal Claims shall not have jurisdiction for any claim
for or in respect to which the plaintiff or his assignee has
pending in any other court any suit or process against the
3 On September 23, 2021, the district court case was
dismissed as moot. Askan Holdings, Ltd. v. U. S. Dep’t of
the Treasury, Off. of Foreign Assets Control, No. CV 20-
1458 (RJL), 2021 WL 4318114, at *5 (D.D.C. Sept. 23,
2021).
Case: 22-1995 Document: 53 Page: 5 Filed: 02/23/2024
ASKAN HOLDINGS, LTD. v. US 5
United States.” 28 U.S.C. § 1500. Two lawsuits are “for or
in respect to the same claim when they are based on sub-
stantially the same operative facts.” United States v.
Tohono O’Odham Nation, 563 U.S. 307, 315 (2011).
When determining whether the claims are based on
substantially the same operative facts, the Supreme Court
has described two tests based on the principles of res judi-
cata that existed in 1868, the year Section 1500’s predeces-
sor statute was enacted: the “act or contract test” and the
“evidence test.” Tohono, 563 U.S. at 315–16; see also
Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1168–69 (Fed. Cir. 2011) (explaining the two tests). The
“act or contract” test distinguishes “between demands or
rights of action which are single and entire, and those
which are several and distinct” on the basis that “the for-
mer immediately arise out of one and the same act or con-
tract, and the latter out of different acts or contracts.” Res.
Invs., 785 F.3d at 666–67 (quoting Tohono, 563 U.S. at
316).
“Under the second test, the evidence test, two suits in-
volve the same claim if: ‘the same evidence support[s] and
establish[es] both the present and the former cause of ac-
tion[.]’” Trusted Integration, 659 F.3d at 1169 (quoting
Tohono, 563 U.S. at 316). If either test is satisfied, Section
1500 deprives the Claims Court of jurisdiction. See id. at
1170 n.5 (“If two suits are determined to arise from the
same claim under either of these res judicata tests, how-
ever, application of the bar of § 1500 is likely compelled.”).
The doctrine of collateral estoppel additionally bars a
plaintiff from relitigating the same issue. Following a valid
and final judgment, “the judgment generally is conclusive
as to the issues raised in the subsequent action if those is-
sues were actually litigated and determined in the prior ac-
tion and if their determination was essential to the
judgment.” Restatement (Second) of Judgments § 17
Case: 22-1995 Document: 53 Page: 6 Filed: 02/23/2024
6 ASKAN HOLDINGS, LTD. v. US
(1982); see also New Hampshire v. Maine, 532 U.S. 742,
748–49 (2001).
A party invoking collateral estoppel must show:
(1) the issue is identical to the one decided in the
first action; (2) the issue was actually litigated in
the first action; (3) resolution of the issue was es-
sential to a final judgment in the first action; and
(4) [the party against whom collateral estoppel is
being asserted] had a full and fair opportunity to
litigate the issue in the first action.
Finjan LLC v. SonicWall, Inc., 84 F.4th 963, 969 (Fed.
Cir. 2023) (quoting Google LLC v. Hammond Dev. Int’l,
Inc., 54 F.4th 1377, 1381 (Fed. Cir. 2022) (alteration in
original)).
II
We hold that the Claims Court correctly found that re-
litigation of the issue in this case—whether Section 1500
deprives the Claims Court of jurisdiction over the second
Claims Court complaint—was barred by collateral estop-
pel. Each element of the collateral estoppel analysis is sat-
isfied. The issue was decided in the first case, the issue
was actually litigated, the issue was essential to the judg-
ment, and Askan had full and fair opportunity to litigate
the issue in the first action. Askan’s sole argument for each
element is that the complaint in Askan I and this case are
not the same because the first cites the Due Process Clause
whereas the second cites the Fifth Amendment Takings
Clause. This is not a sufficient difference to avoid the pre-
clusive effect of the prior judgment because the complaints
in both cases are virtually identical—and, in several
places, verbatim.
Because each requirement is met, we hold that this suit
is barred by the doctrine of collateral estoppel.
Case: 22-1995 Document: 53 Page: 7 Filed: 02/23/2024
ASKAN HOLDINGS, LTD. v. US 7
Even if collateral estoppel did not preclude Askan’s
claims, Section 1500 presents an independent bar to the
Claims Court’s jurisdiction. Askan filed its second com-
plaint on September 2, 2021, at which time Askan’s com-
plaint was still pending at the district court. While the
relief sought is different, that is not determinative. See
Res. Invs., 785 F.3d at 666; Ministerio Roca Solida v.
United States, 778 F.3d 1351, 1353 (Fed. Cir. 2015) (“[I]t is
irrelevant whether the relief sought in the two co-pending
suits is the same or different . . . .”). The same government
conduct underlies each complaint, and the same evidence
would be necessary to support Askan’s claims. Whether
analyzed under the “act or contract” or “evidence” test, the
result is the same. The acts—“OFAC’s block of the trans-
action returning Askan’s down payment; OFAC’s delay in
authorizing the return of the funds; and OFAC’s issuance
of a license to the Comptroller that resulted in the funds
escheating to the State of New York”—are the same acts
that were at issue in the district court litigation. Askan
Holdings, Ltd., 2022 WL 1512730, at *6. Similarly, the
same evidence would “support[] and establish[]” Askan’s
claims, whether that be a claim for declaratory relief, in-
junctive relief, or a takings claim. Trusted Integration, 659
F.3d at 1169 (quoting Tohono, 563 U.S. at 316).
Because we hold that Askan’s claims are barred under
the doctrine of collateral estoppel and that Section 1500 de-
prives the Claims Court of jurisdiction in this case, we do
not reach the other issues.
AFFIRMED