Alperin v. Vatican Bank, 03-16166.

Citation410 F.3d 532
Decision Date09 June 2005
Docket NumberNo. 03-16166.,No. 03-15208.,03-16166.,03-15208.
PartiesEmil ALPERIN; Jewgenija Romanova; Maria Dankewitsch; Vladimir Morgunov, on behalf of themselves and all other persons similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners; Vladimir Brodich; William Dorich; Igor Najfeld, on behalf of themselves and all other persons similarly situated; Lizabeth Lalich; Mladen Djuricich; Robert Predrag Gakovich; Nevenka Vukasovic Malinowski; Eli Rotem; Milorad Skoric; Veljko Miljus; Fred Zlatko Harris; Milja Conger; Allen Dolfi Herskovich; Bogdan Kljaic; David Levy; Zdenka Baum Ruchwarger; Vladan Celebonovic; Desa Tomasevic Wakeman; Daniel Pyevich; Koviljka Popovic; Jasenovac Research Institute; The International Union of Former Juvenile Prisoners of Fascism of Ukraine, Russia, and Belarus, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. VATICAN BANK, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR); Franciscan Order (OFM), Including Croatian Franciscans; Croatian Cofraternity of the College of San Girolamo Degli Illirici, and its successors, Swiss, Austrian, Argentine, Spanish, Italian, Portuguese, Vatican & German Banking Institutions; Croatian Liberation Movement (HOP), Defendants-Appellees. Emil Alperin; Jewgenija Romanova; Maria Dankewitsch; Vladimir Morgunov, on behalf of themselves and all other persons similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners; Vladimir Brodich; William Dorich; Igor Najfeld, on behalf of themselves and all other persons similarly situated; Lizabeth Lalich; Mladen Djuricich; Robert Predrag Gakovich; Nevenka Vukasovic Malinowski; Eli Rotem; Milorad Skoric; Veljko Miljus; Fred Zlatko Harris; Milja Conger; Allen Dolfi Herskovich; Bogdan Kljaic; David Levy; Zdenka Baum Ruchwarger; Vladan Celebonovic; Desa Tomasevic Wakeman; Daniel Pyevich; Koviljka Popovic; Jasenovac Research Institute; The International Union of Former Juvenile Prisoners of Fascism of Ukraine, Russia, and Belarus, on behalf of themselves and all others similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners, Plaintiffs-Appellants, v. Vatican Bank, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR); Franciscan Order (OFM), Including Croatian Franciscans; Croatian Cofraternity of the College of San Girolamo Degli Illirici, and its successors, Swiss, Austrian, Argentine, Spanish, Italian, Portuguese, Vatican & German Banking Institutions; Croatian Liberation Movement (HOP), Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
410 F.3d 532
Emil ALPERIN; Jewgenija Romanova; Maria Dankewitsch; Vladimir Morgunov, on behalf of themselves and all other persons similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners; Vladimir Brodich; William Dorich; Igor Najfeld, on behalf of themselves and all other persons similarly situated; Lizabeth Lalich; Mladen Djuricich; Robert Predrag Gakovich; Nevenka Vukasovic Malinowski; Eli Rotem; Milorad Skoric; Veljko Miljus; Fred Zlatko Harris; Milja Conger; Allen Dolfi Herskovich; Bogdan

Page 533

Kljaic; David Levy; Zdenka Baum Ruchwarger; Vladan Celebonovic; Desa Tomasevic Wakeman; Daniel Pyevich; Koviljka Popovic; Jasenovac Research Institute; The International Union of Former Juvenile Prisoners of Fascism of Ukraine, Russia, and Belarus, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
VATICAN BANK, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR); Franciscan Order (OFM), Including Croatian Franciscans; Croatian Cofraternity of the College of San Girolamo Degli Illirici, and its successors, Swiss, Austrian, Argentine, Spanish, Italian, Portuguese, Vatican & German Banking Institutions; Croatian Liberation Movement (HOP), Defendants-Appellees.
Emil Alperin; Jewgenija Romanova; Maria Dankewitsch; Vladimir Morgunov, on behalf of themselves and all other persons similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners; Vladimir Brodich; William Dorich; Igor Najfeld, on behalf of themselves and all other persons similarly situated; Lizabeth Lalich; Mladen Djuricich; Robert Predrag Gakovich; Nevenka Vukasovic Malinowski; Eli Rotem; Milorad Skoric; Veljko Miljus; Fred Zlatko Harris; Milja Conger; Allen Dolfi Herskovich; Bogdan Kljaic; David Levy; Zdenka Baum Ruchwarger; Vladan Celebonovic; Desa Tomasevic Wakeman; Daniel Pyevich; Koviljka Popovic; Jasenovac Research Institute; The International Union of Former Juvenile Prisoners of Fascism of Ukraine, Russia, and Belarus, on behalf of themselves and all others similarly situated; Organization of Ukrainian Antifascist Resistance Fighters; Ukrainian Union of Nazi Victims and Prisoners, Plaintiffs-Appellants,
v.
Vatican Bank, aka Institute of Religious Works aka Instituto per le Opere Di Religione (IOR); Franciscan Order (OFM), Including Croatian Franciscans; Croatian Cofraternity of the College of San Girolamo Degli Illirici, and its successors, Swiss, Austrian, Argentine, Spanish, Italian, Portuguese, Vatican & German Banking Institutions; Croatian Liberation Movement (HOP), Defendants-Appellees.
No. 03-16166.
No. 03-15208.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 7, 2004.
Filed April 18, 2005.
Amended June 9, 2005.

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Kathryn Lee Boyd, Pepperdine University Law School, Malibu, CA; Jonathan H. Levy, Cincinnati, OH; Thomas Easton, Eugene, OR, for the plaintiffs-appellants.

Jeffrey S. Lena, Law Offices of Jeffrey S. Lena, Berkeley, CA, for defendant-appellee Istituto per le Opere di Religione, sued as the Vatican Bank.

Paul E. Vallone, Hinshaw & Culbertson, San Francisco, CA, for defendant-appellee Order of Friars Minor.

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

Before TROTT, McKEOWN, Circuit Judges, and SHADUR, Senior District Judge.*

AMENDED OPINION AND AMENDED CONCURRENCE/DISSENT

McKEOWN, Circuit Judge.


We are faced here with the question whether claims for losses allegedly suffered at the hands of a Nazi puppet regime during World War II are cognizable in our courts today. Because these claims, at least superficially, touch on foreign relations and potentially controversial political issues, it is tempting to jump to the conclusion that such claims are barred by the political question doctrine. The Supreme Court has counseled, however, that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The justiciability inquiry is limited to "`political questions,' not . . . `political cases,'" id. at 217, 82 S.Ct. 691, and should be made on a "case-by-case" basis, id. at 211, 82 S.Ct. 691.

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Although the political question doctrine often lurks in the shadows of cases involving foreign relations, it is infrequently addressed head on. See, e.g., Hwang Geum Joo v. Japan, 332 F.3d 679, 682 (D.C.Cir. 2003), vacated and remanded by ___ U.S. ___, 124 S.Ct. 2835, 159 L.Ed.2d 265 (2004) (explaining that because the district court did not have subject matter jurisdiction in case involving World War II-era claims against Japan, "[n]or ... need we consider whether the political question doctrine would also bar its adjudication"). The procedural posture of this case, however, places the issue squarely before us.

With these principles in mind, in determining the threshold issue of justiciability, we scrutinize each claim individually. Indeed, in our system of separation of powers, we should not abdicate the court's Article III responsibility—the resolution of "cases" and "controversies"—in favor of the Executive Branch, particularly where, as here, the Executive has declined a long-standing invitation to involve itself in the dispute. We conclude that some of the claims are barred by the political question doctrine and some of the claims are justiciable. Although the parties have multiple procedural and substantive challenges to overcome down the road, they are entitled to their day—or years—in court on the justiciable claims.

A group of twenty-four individuals and four organizations (the "Holocaust Survivors") claim that the Vatican Bank, known by its official title Istituto per le Opere di Religione, the Order of Friars Minor, and the Croatian Liberation Movement (Hrvatski Oslobodilacki Pokret), profited from the genocidal acts of the Croatian Ustasha political regime (the "Ustasha"), which was supported throughout World War II by Nazi forces. That profit allegedly passed through the Vatican Bank in the form of proceeds from looted assets and slave labor. The Holocaust Survivors brought suit in federal court claiming conversion, unjust enrichment, restitution, the right to an accounting, and human rights violations and violations of international law arising out of the defendants' alleged involvement with the Ustasha during and following World War II.

The Vatican Bank and the Order of Friars Minor moved to dismiss the Holocaust Survivors' complaint on multiple grounds; by agreement of the parties the district court limited its discussion to the issue of whether the Holocaust Survivors' claims should be dismissed under the political question doctrine. The district court reasoned that the political question doctrine bars consideration of the merits of the claims in their entirety. The district court dismissed the action against the Croatian Liberation Movement, which never appeared in the action, on the grounds that the claims were barred by both the political question doctrine and the lack of personal jurisdiction over this defendant. We reverse in part because certain of the Holocaust Survivors' claims—those with respect to lost and looted property (conversion, unjust enrichment, restitution, and an accounting)—are not barred by this doctrine. In contrast, the broad human rights allegations tied to the Vatican Bank's alleged assistance to the war objectives of the Ustasha present nonjusticiable controversies. Like the district court, we hold that the court did not have personal jurisdiction over the Croatian Liberation Movement.1 Consequently, we see no reason

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to reach the political question doctrine vis-à-vis this defendant.

Bearing in mind that "[t]he decision to deny access to judicial relief is not one we make lightly," Liu v. Republic of China, 892 F.2d 1419, 1433 (9th Cir.1989) (quoting Int'l Ass'n of Machinists & Aerospace Workers v. OPEC, 649 F.2d 1354, 1360 (9th Cir.1981)), we conclude that the political question doctrine does not create an absolute barrier to the Holocaust Survivors' property claims. To conclude otherwise would be to shirk our judicial role as "[c]ourts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them." W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 409, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990).

That said, it bears noting that our initial determination of justiciability in no way reflects any judgment on the threshold legal hurdles that must be overcome or the merits of the claims. Much of the dissent focuses on downstream issues related to potential procedural and substantive pitfalls of the claims. We do not discount the difficulties that may lie ahead; however, consideration of those issues is premature. Given the passage of time, the generality of the allegations, the question of the applicability of the Foreign Sovereign Immunities Act, intricacies of the alleged claims, the class certification issues, whether the claimants have a cognizable legal claim, and a myriad of other procedural and jurisdictional hurdles, the Holocaust Survivors may indeed face an uphill battle in pursuing their claims. But this spectre of difficulty down the road does not inform our justiciability determination at this early stage of the proceedings.

Our conclusion is rooted in the principles of Baker v. Carr. Despite the dissent's cataclysmic and speculative projections about the sweep of our opinion, our decision boils down to letting the common law property claims proceed to the next stage and foreclosing the political, human...

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