Sampson v. Federal Republic of Germany

• Decision Date: 23 May 2001
• Docket Number: No. 97-3555,97-3555
• Citation: 250 F.3d 1145
• Parties: (7th Cir. 2001) Jacob Sampson, Plaintiff-Appellant, v. Federal Republic of Germany and Claims Conference, Article 2 Fund, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1145

250 F.3d 1145 (7th Cir. 2001)

Jacob Sampson, Plaintiff-Appellant, v. Federal Republic of Germany and Claims Conference, Article 2 Fund, Defendants-Appellees.

No. 97-3555

In the United States Court of Appeals For the Seventh Circuit

Argued February 13, 2001

Decided May 23, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 6242--Ann Claire Williams, Judge.

Before Manion, Kanne, and Evans, Circuit Judges.

Manion, Circuit Judge.

Jacob Sampson, pro se, sued Germany for his imprisonment in Nazi concentration camps, and sued Germany and the Conference on Jewish Material Claims Against Germany, Inc. ("Claims Conference") for reparations from funds created for Holocaust survivors. The district court dismissed the complaint concluding that Germany was immune from suit and that Sampson lacked standing to sue the Claims Conference. Sampson appeals. We affirm.

I.

Sampson's complaint alleges horrors which are beyond belief, and the evils he describes cannot be condemned in strong enough terms.¹ In 1939, Sampson was imprisoned in the Lodz ghetto in Poland. He was subsequently transported by cattle car to the Auschwitz concentration camp, where he was forced to perform slave labor. At Auschwitz, the Gestapo killed all sixty members of his family. Sampson somehow survived, and he is now a United States citizen and resident of Chicago.

The Claims Conference is an international coalition of twenty-three Jewish nonprofit organizations. For nearly half a century, the Claims Conference has engaged in discussions with Germany to secure restitution for Jewish survivors of the Holocaust. In 1952, the Claims Conference and Germany agreed on Protocols to achieve this goal. Protocol No. 1 called for Germany to "redress . . . [Nazi] wrongs" and "take as soon as possible all steps within [its] constitutional competence to ensure the carrying out of the [agreed upon] programme." Pursuant to this Protocol, Germany enacted the German Federal Indemnification Law, which provided for restitution to Holocaust victims. Since restitution would be impossible as a practical matter in many cases, the parties also entered into Protocol No. 2. Under Protocol No. 2, Germany agreed to pay Israel DM 450 million for the benefit of the Claims Conference which would use the money to provide for the "relief, rehabilitation and resettlement of Jewish victims of National Socialist persecution [who did not live in Israel], according to the urgency of their needs." Disputes concerning the disbursement of this money would be handled by an Arbitral Commission established between Israel and Germany.

However, not every Holocaust survivor received compensation through this process. Accordingly, in 1980, the Claims Conference and Germany established the "Hardship Fund" to give a one-time payment to Holocaust survivors who had not received prior compensation. The Claims Conference administers the Hardship Fund, but its sole role is to determine whether the claimants meet the German guidelines--not to differentiate among qualified applicants in the amount of payment. The Hardship Fund prohibits "a right of action to receive compensation."

In 1990, Germany and the Claims Conference established the "Article 2 Fund" to provide compensation to Holocaust victims who had received minimal or no compensation. The Article 2 Fund provides for a one-time payment of DM 5,000 and monthly payments of DM 500 to these individuals. The Claims Conference also administers the Article 2 Fund, but has no discretion to deviate from Germany's guidelines. The Article 2 Fund declares that "[t]here is no legal claim to the payments provided according to this agreement."

Most recently, on July 17, 2000, the United States and Germany signed an agreement (the "Foundation Agreement") which created the "Remembrance, Responsibility and the Future Foundation" (the "Foundation"). The Foundation is a joint instrumentality of the German government and German companies formed to make payments to individuals who were forced laborers under the Nazi regime or who suffered injury or property loss due to the acts of German companies. As part of the Foundation Agreement, the United States promised to "take appropriate steps to oppose any challenge to the sovereign immunity of the Federal Republic of Germany with respect to any claim . . . concerning the consequences of the National Socialist era and World War II." The Agreement took effect on October 19, 2000.

Sampson first requested compensation from Germany in 1948. This effort received no response. In 1981, he filed a claim with the Hardship Fund, which also received no response. However, in February 1996, Sampson was compensated; he received a one-time payment of DM 5,000 as well as monthly payments of DM 500 retroactive to August 1995 from the Article 2 Fund.

Subsequently, Sampson filed suit in federal district court against Germany and the Claims Conference seeking $10 million plus costs. Sampson sought compensation from Germany based on his enslavement during World War II, and from Germany and the Claims Conference for an alleged conspiracy to deprive him of full compensation for his injuries. Specifically, Sampson alleged the defendants conspired to embezzle funds intended for Holocaust victims, breached their covenant with him, and discriminated against him.

Germany and the Claims Conference moved to dismiss Sampson's complaint. The district court dismissed the claims against Germany, concluding Germany was immune from suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. secs. 1330, 1602-11, and under the act of state doctrine. The district court also granted the Claims Conference's motion to dismiss, concluding that Sampson had no right to payment by the Claims Conference and that the act of state doctrine precluded suit against the Claims Conference in any event.

Sampson appealed the dismissals to this court. On appeal, this court appointed Dean Howard Eisenberg and Professor Joseph Kearney of Marquette University Law School as amicus curiae ("Amicus") to argue on Sampson's behalf. Amicus briefed the issue of whether Germany has immunity under the FSIA for acts which violate jus cogens norms of customary international law, and whether these claims are barred by a statute of limitations. This court postponed oral argument to permit the United States government to file a brief. The United States government filed a brief as amicus curiae (the "United States") in support of Germany's argument that it had sovereign immunity for its acts during World War II.

II.

On an appeal from a motion to dismiss, we review the dismissal de novo, accepting all well-pleaded factual allegations in the complaint as true, and making all reasonable inferences in the non-movant's favor. See Gonzalez v. City of Chicago, 239 F.3d 939, 940 (7th Cir. 2001). In this case, the district court dismissed the counts against Germany based on sovereign immunity.

"We start from the settled proposition that the subject matter jurisdiction of the lower federal courts is determined by Congress 'in the exact degrees and character which to Congress may seem proper for the public good.'" Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 433 (1989) (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845)). Relevant to this appeal is the FSIA, the federal statute in which Congress defined "the sole basis for obtaining jurisdiction over a foreign state in our courts." Id. at 434.²

Specifically, the FSIA provides that "[s]ubject to existing international agreements to which the United States is a party at the time of the enactment of this Act[,] a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C. sec.1604. The FSIA also provides that "[t]he district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any international agreement." 28 U.S.C. sec. 1330(a). Thus, "[u]nder the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject- matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).³ Accordingly, we must determine whether the general grant of sovereign immunity in the FSIA, or one of the exceptions, applies to Sampson's claims.

Sampson and Amicus argue that this court has jurisdiction under Section 1605(a)(1) of the FSIA, which provides an exception to sovereign immunity where a "foreign state has waived its immunity . . . by implication." Specifically, Sampson and Amicus argue that a violation of a non- derogable jus cogens norm of customary international law constitutes an implied waiver of a foreign state's sovereign immunity.

To understand this argument some additional background is necessary. Customary international law is the "general and consistent practice of states followed by them from a sense of obligation." See Restatement (Third), The Foreign Relations Law of the United States sec. 102(2) (1987). Courts determine the content of customary international law by "consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820).

A jus cogens norm is a special type of customary international law. A jus cogens norm "'is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be...