Alperin v. Vatican Bank, 122909 FED9, 08-16060

Docket Nº:08-16060
Opinion Judge:B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges
Party Name:EMIL ALPERIN; et al., Plaintiffs - Appellants, v. VATICAN BANK, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR), Defendant - Appellee.
Judge Panel:Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Case Date:December 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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EMIL ALPERIN; et al., Plaintiffs - Appellants,

v.

VATICAN BANK, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR), Defendant - Appellee.

No. 08-16060

United States Court of Appeals, Ninth Circuit

December 29, 2009

NOT FOR PUBLICATION

Argued and Submitted December 10, 2009 San Francisco, California

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding D.C. No. 99-cv-04941-MMC

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

MEMORANDUM[*]

Survivors and descendants of victims of the Holocaust, and associated organizations (collectively referred to herein as "Alperin"), appeal the dismissal of their purported class action lawsuit against the Vatican Bank, also known by its official title Istituto per le Opere di Religione (the "IOR"). On a previous appeal, we held that the political question doctrine barred broad allegations of violation of international law but did not bar certain property claims. Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005). We are now asked whether the IOR is a foreign sovereign protected by the Foreign Sovereign Immunity Act (the "FSIA"), and if so, whether Alperin's claims fall within the international takings exception or commercial takings exception to the FSIA's jurisdictional bar. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

"The existence of sovereign immunity and subject matter jurisdiction under the [FSIA] are questions of law that [this Court] review[s] de novo." Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1085–86 (9th Cir. 2007) (internal quotation marks and citation omitted) (alteration in original). A District Court's interpretation of foreign law is also reviewed de novo. Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). On a motion to dismiss, the court "assume[s] that [it has] truthful factual allegations before [it]." Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

I

The district court did not err in holding that the IOR is an organ of a foreign state entitled to FSIA immunity. In assessing whether an entity is an organ of a foreign state, see 28 U.S.C. § 1603(b)(2), we "[t]ak[e] a holistic view" of the defendant, Cal. Dep't of Water Res. v. Powerex Corp., 533 F.3d 1087, 1102 (9th Cir. 2008). In doing so, we examine

"[1] the circumstances surrounding the entity's creation, [2] the purpose of its activities, [3] its...

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