Does the Foreign Sovereign Immunities Act allow United States courts to assert jurisdiction over claims that a foreign country took the property of its own citizens “in violation of international law” and, if so, is international comity available as a defense to that jurisdiction?
This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent United States courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (“FSIA”) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether United States courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in United States courts.
Questions as Framed for the Court by the Parties
(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.
Around 1929, three art dealer firms, J. & S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch, formed a Consortium (the “Consortium”) in Frankfurt, Germany. Philipp v. Fed. Republic of Germany, (D.D.C. 2017) at 64. The owners were German Jews and the ancestors or predecessors-in-interest of Respondents Alan Philipp, Gerald G. Stiebel, and Jed R. Leiber. Id. On October 5, 1929, the Consortium purchased a collection of 82 medieval relics known as the Welfenschatz from the Duke of Brunswick-Lüneberg. Id. By 1931, the Consortium had sold 40 of the relics to museums and individuals throughout Europe and the United States. Id.
Three years later, Dresdner Bank, which was majority owned by the German Reich, facilitated the sale of the remaining 42 relics to the State of Prussia. Id. at 64–65. In January 1934, the Consortium was unwilling to sell the relics below 6 million Reichsmarks (“RM”); however, Dresdner Bank refused any sale above 3.5 million RM. Id. at 65–66. In April 1935, Dresdner Bank made an offer of 3.7 million RM and the Consortium counteroffered 5 million RM. Id. at 66. On May 4, 1935, the Consortium proposed 4.35 million RM and on June 14, 1935 the contract was executed for 4.25 million RM. Id.
On July 18. 1935, the Consortium shipped the relics to Amsterdam to eventually be delivered to Berlin. Id. Dresdner Bank paid the Consortium 3,371,875 RM in three bank accounts and 778,125 RM in a blocked account. Id. The parties agreed that part of the price could also be paid through art objects in Berlin museums chosen by art dealers. Id. Instead, however, museum officials chose these art objects. Id. The Consortium also paid 100,000 RM to the messenger that facilitated its contact with Dresdner Bank. Id. Stiftung Preussischer Kultubesitz (“SPK”) was created by Germany to acquire the State of Prussia’s former cultural property rights. Id. at 64. The SPK currently holds the Welfenschatz at the Museum of Decorative Arts (“Kunstgewerbemuseum”) in Berlin. Id. at 65.
Philipp, Stiebel, and Leiber contended that Nazi-leaders coerced the sale of the relics. Id. at 65. They cited communications between Nazi-leaders Hermann Goering and Adolf Hitler calling for the Welfenschatz to be saved for the German Reich and noted that in November 1935, Goering gave the relics to Hitler as a “surprise gift.” Id. They also highlighted that the sale price of the artifacts indicates coercion. Id. The 4.25 million RM price was approximately 35% of the relics’ market value. Id. They also cited an investigative report that also indicated that Dresdner Bank had an early role in the confiscation of Jewish property. Id.
Philipp, Stiebel, and Leiber brought claims before the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (“Advisory Commission”). Id. at 66. The Advisory Commission concluded that the purchase of the 42 relics was not coerced and did not recommend restitution of the relics. Id. at 66–67. On February 23, 2015, Philipp and Stiebel filed a complaint, eventually joined by Leiber, against Petitioners SPK and Federal Republic of Germany (“Germany”) in the United States District Court for the District of Columbia alleging ten claims. Id. at 67. On March 31, 2017, the District Court dismissed five claims, but maintained the others, concluding that they fell under the expropriation exception to the Foreign Sovereign Immunities Act (“FSIA”). Id. at 87. On July 10, 2018, the United States Court of Appeals for the District of Columbia Circuit affirmed the decision of the District Court with respect to SPK, but dismissed the claims against Germany. Philipp v. Fed. Republic of Germany, (D.C. Cir. 2018) at 418. Germany and SPK then requested en banc review by the D.C. Circuit, which the court denied on June 18, 2019. Philipp v. Fed. Republic of Germany, (D.C. Cir. 2019) at 1349.
On September 16, 2019, Germany and SPK petitioned the Supreme Court of the United States for a writ of certiorari. Brief for Petitioners, Federal Republic of Germany and Stiftung Preussicher Kulturbesitz at 1. The Supreme Court granted certiorari on July 2, 2020. Id.
STATUTORY INTERPRETATION OF THE FOREIGN SOVEREIGN IMMUNITIES ACT
SPK and Germany (collectively “Germany”) assert that “taken in violation of international law,” as written in the expropriation exception of the FSIA, is a legal term of art meaning taken in violation of the international law of expropriation. Brief for Petitioners, Federal Republic of Germany and Stiftung Preussicher Kulturbesitz at 22. Germany argues that the international law of expropriation is only implicated when a country takes a foreign national’s property, not in a domestic taking. Id. at 17. Germany notes that, at the time the FSIA was enacted, the Restatement regarding foreign relations law defined “taken in violation of international law” as a legal term of art, the meaning of which is consistent with Germany’s proposed interpretation. Id. at 23.
Germany also argues that the legislative history of the FSIA supports the position that Congress intended for Germany’s proposed interpretation to apply. Brief for Petitioners at 24. Germany asserts that the House Report’s discussion of the phrase tracked the then-current discussions of the international law of expropriation. Id. at 24–25. Germany also posits that it is reasonable for Congress to have invoked the international law of expropriation when drafting the FSIA because a major concern of the United States at that time was the extensive expropriation of American property abroad by Communist countries such as Cuba. Id. at 25. Germany contends that the language used in the FSIA was almost identical to language used in laws passed as a direct response to such takings several years earlier. Id. at 26.
Philipp, Stiebel, and Leiber (collectively “Philipp”) counter that “taken in violation of international law” is not a legal term of art, and thus must be interpreted based on the plain meaning of the words. Brief of Respondents, Alan Philipp, et al. at 11–12. Philipp thus argues that a claim of property taken in violation of any international law is encompassed by the FSIA’s expropriation exception, including those taken in pursuant to the international crime of genocide. Id. at 12. Philipp also asserts that every American lower court, as well as a German court, that interpreted the same language has concluded that the forced sale of property to the Nazis met the threshold requirements of a taking in violation of international law. Id. at 12–13. Philipp notes that Congress did not include any language limiting claims under the FSIA’s expropriation exception based on the victims’ nationality, unlike in other exception clauses, and contends that Germany is asking the courts to take the place of the legislature by inserting the nonexistent limiting language from the Restatement into the statute. Id. at 15–16, 29. Philipp also notes that, in its discussions of the FSIA, Congress never stated that the takings clause should be tied to the international law of expropriation. Id. at 30.
Philipp also contends that the legislative history of the FSIA supports his proposed interpretation, not Germany’s. Brief for Respondents at 16–17. Philipp asserts that statements made during Congressional hearings show that the meaning and jurisdiction-granting implications of the FSIA on claims of German Jewish art unlawfully taken by the Nazis was clearly understood by Congress at the time the FSIA was drafted. Id. at 17–18. Philipp notes that Congress has since passed numerous laws, such as the Holocaust Expropriated Art Recovery Act, that demonstrate that Congress considers the Nazi taking of Jewish art to be a taking in violation of international law that would give victims claims in American courts. Id. at 23. Philipp also asserts that Congress must have intended to include German nationals in the FSIA’s scope because beginning in 1933, Congress explicitly identified the taking of art by Nazis as takings within the scope of the FSIA, and up until 1938 the only victims of Germany’s Nazi persecution were German Jews. Id. at 14–15.
RELEVANCE OF GENOCIDE
Germany contends that, given the FSIA’s focus on property rights, the only international law that should trigger the exception is that which addresses state interference with property rights: the law of expropriation. Brief for Petitioners at 28. Germany contrasts this with international human rights law, which protects the rights of persons. Id. at 19. Germany emphasizes that the FSIA contains three explicit immunity exceptions for violations of human rights, so there is no reason to believe that Congress would have included an implicit genocide exception in the expropriation exception section instead of addressing it directly. Id. at 31. Moreover, Germany argues that the forced sale of property has never been found to be a genocidal act, but nevertheless it would be strange to categorize a property offense severe enough to be an act of genocide as a mere taking in violation of international law. Id. at 29, 36. Germany further notes that courts have consistently held that a country’s taking of its own citizen’s property does not fall into the expropriation exception, even when the case involves serious human rights violations, because those takings are still only a domestic matter. Id. at 18.
Philipp counters that genocide is accepted worldwide as a crime under international law, and thus takings in connection with genocide must be takings in violation of international law encompassed by the FSIA’s expropriation exception. Brief for Respondents at 12. Philipp also contends that the fact that Germany did not consider Jews to be German citizens during the Holocaust prevents any domestic takings exception from being applied. Id. at 27. Philipp asserts that economic persecution designed to eliminate Jews from the cultural and economic life of Germany was the first step in the Nazis’ genocidal scheme. Id. at 21–22. Philipp also notes that findings establishing that art looting was a “critical element” of the Nazis’ genocide campaign have appeared in numerous American laws meant to provide redress for Holocaust victims. Id. at 24–25. Thus, Philipp concludes that the economic persecution of Jews has always been considered a part of the Holocaust, and therefore must also be an act of genocide in violation of international law. Id. at 36.
COMITY-BASED ABSTENTION AS A DEFENSE
Germany also argues that the case should be dismissed as a matter of international comity so that the dispute can be resolved where it arose: in Germany. Brief for Petitioners at 41. Germany contends that, as comity is a common law defense distinct from the issue of jurisdiction, there is no reason to think the FSIA implicitly abrogated it when the statute left non-jurisdictional defenses unaddressed. Id. Germany argues that international comity-based abstention is a different doctrine than foreign sovereign immunity, as a comity defense turns on the nature of the case whereas a sovereign immunity defense turns on the identity of the defendant. Id. at 46. Therefore, while Germany acknowledges that any defenses based on immunity must have their grounds in the FSIA, Germany argues that non-immunity defenses like comity remain available, and thus courts must still consider comity interests before exercising their discretion to abstain. Id. at 48–49.
Philipp argues that the FSIA already extends international comity in the form of foreign sovereign immunity. Brief for Respondents at 38. Philipp contends that sovereign immunity is a “function” of comity, and that it is this comity that has already resulted in the Federal Republic of Germany being dismissed from the suit. Id. at 38–39. Philipp asserts that the FSIA’s comprehensive rules and standards regarding sovereign immunity bar Germany from relying on comity to assert any other sovereignty-based defense. Id. at 39. Philipp further contends that Germany is not seeking dismissal due to comity-based abstention, but rather based on a failure to exhaust remedies or forum non conveniens. Id. at 40, 43. Both arguments for dismissal must fail, Philipp argues, because the FSIA’s comprehensive sovereign immunity standards do not include any requirement to exhaust the foreign sovereign’s domestic remedies before filing suit in the United States, and Germany has already asserted and lost its forum non conveniens argument in the court below. Id. at 42, 45. Philipp maintains that actual comity-based abstention is an extremely rare and controversial defense that should not be granted, as United States courts have a “virtually unflagging obligation” to assert the jurisdiction that has been granted to them, regardless of whether a case involves foreign relations. Id. at 45–46.
ACCESS TO THE COURTS AND FOREIGN RELATIONS
In support of reversal, Société Nationale SNCF SA (“SNCF”), a French railroad company, argues that United States courts should have the discretion to defer claims against foreign sovereigns to entities within their territories. Brief of Amicus Curiae Société Nationale SNCF SA (“SNCF”), in Support of Neither Party and Supporting Reversal at 17. SNCF argues that entities within a sovereign’s territory such as the Commission for Spoliation Resulting from Anti-Semitic Legislation in Force during the Occupation (“CIVS”) in France may be able to more efficiently and accessibly provide benefits to victims than United States courts in cases against foreign sovereigns. Id. SNCF argues that the benefits of international comity are not just limited to convenience, but also serve as a demonstration of respect and consideration by the United States to a foreign sovereign’s interests. Id. at 20–21. International comity, the SNCF contends, helps to “minimize international friction.” Id. at 21. Additionally, the United States, in support of Germany, argues that courts may decide whether to exercise jurisdiction over cases against foreign sovereigns based on “flexible criteria that focus on protecting the United States’ interests, preserving international harmony, and ensuring fairness for litigants.” Brief of Amicus Curiae United States, in Support of Petitioner at 31.
Professors William S. Dodge and Maggie Gardner (“the Professors”), in support of Philipp, counter that expanded discretion for United States courts to abstain from jurisdiction against foreign sovereigns would have to also apply to individual private parties. Brief of Amici Curiae Professors William S. Dodge and Maggie Gardner, in Support of Respondents at 22. This, they argue, would cause “far-reaching and unpredictable consequences.” Id. The Professors contend that adopting comity abstention would allow private defendants to invoke intervention by foreign states. Id. at 23. The Professors highlight that courts have expressed concern that abstention would become a tool used for forum-selection. Id. Additionally, they argue that courts might abstain too willingly, interfering with Congress’s right to determine the bounds of federal jurisdiction. Id. The Professors acknowledge that prudential comity abstention is such a new concept that it is impossible to predict its effects, but argue that the Supreme Court “need not, and should not, run that national experiment.” Id. Additionally, the Holocaust Art Restitution Project, Inc. (“HARP”) further argues that allowing a court to deny jurisdiction in this case may also violate the constitutional right to equal access to the United States courts. Brief of Amicus Curiae Holocaust Art Restitution Project, Inc. (“HARP), in Support of Respondents at 21. HARP notes that preventing a United States court from exercising jurisdiction over a foreign nation’s takings of its own people’s property would result in inequality because it would prevent German Jewish Holocaust survivors from accessing the courts, but not Jewish Holocaust survivors born outside Germany. Id.
IMPACT OF A GENOCIDE EXCEPTION
In support of Germany, the United States argues that the FSIA does not provide United States courts with jurisdiction over human rights violations or genocide. Brief of the United States at 20. The United States argues that granting jurisdiction for seized property would therefore create greater protection for property than for persons. Id. The United States further notes that while there is a terrorism exception to the FSIA which permits claims of property loss, this exception is narrowly tailored and that, if an exception for takings were permitted, it may encourage evasion of the limitations on the terrorism exception. Id. at 20–21.
In support of Philipp, the American Association of Jewish Lawyers and Jurists and other advocates for Holocaust restitution (“AAJLJ”) argue that the United States has a policy interest in ensuring justice for Holocaust survivors. Brief of Amici Curiae American Association of Jewish Lawyers and Jurists and Other Advocates for Holocaust Restitution, in Support of Respondents at 21. The AAJLJ argue that the inclusion of Nazi takings within the FSIA expropriation exception is consistent with the United States policy goal of “reliev[ing] American courts from any jurisdictional restraints” in cases to regain property taken during the Holocaust. Id. at 24. HARP notes that both the executive and legislative branches have a policy interest to facilitate restitution of property taken by the Nazis and that the bars that the Petitioners wish to put on jurisdiction would go against these policy goals. Brief of HARP at 22, 25.
The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.
- Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, New York Times (July 10, 2020).
- Jess Bravin, Supreme Court to Decide Federal Court’s Authority Over Claims from Overseas Atrocities, The Wall Street Journal (July 2, 2020).
- Nathan Lewin, German Jews ‘Sold’ Silver to the Nazis. Why Does the U.S. Want Germany to Keep It?, The Washington Post (June 19, 2020).