DocketNumber： Docket Nos. 02-9361(L), 02-3087(CON)
Citation Numbers： 431 F.3d 57, 2005 U.S. App. LEXIS 25253, 2005 WL 3117196
Judges： Cabranes, Kearse, Straub
Filed Date： 11/23/2005
Status： Precedential
Modified Date： 11/5/2024
We are asked by the Republic of Austria — and by the United States and the American Council for Equal Compensation
This putative class action against Austria, certain of its instrumentalities (collectively, “Austria”), and other Austrian entities arises from sweeping confiscations of property that were part of the systematic Nazi victimization of Austrian Jews between 1938 and 1945. The severity of property expropriations by the Nazi regime cannot be overstated. We are reminded of the words of Judah Gribetz, the court-appointed Special Master in a separate Holocaust reparations case: “[T]here is scarcely a victim of the Nazis who was not looted, and on nearly an incomprehensible scale.” In re Holocaust Victim Assets Litig., 302 F.Supp.2d 89, 95 (E.D.N.Y. 2004) (internal quotation marks omitted).
Before us are (1) an interlocutory appeal by Austria, challenging a discovery order of the United States District Court for the Southern District of New York (Shirley Wohl Kram, Judge), aimed at determining whether plaintiffs can establish subject-matter jurisdiction (No. 02-9361), and (2) Austria’s petition for a writ of mandamus to compel the District Court to rule on defendants’ pending motion to dismiss (No. 02-3087). This is the second time that this case comes before us. See Garb v. Republic of Poland, 72 FedAppx. 850 (2d Cir. 2003) (summary order). We consider it anew following a remand from the Supreme Court. See Republic of Austria v. Whiteman, 542 U.S. 901, 124 S.Ct. 2835, 159 L.Ed.2d 265 (2004). In the time between our 2003 disposition of these matters and the Supreme Court’s remand, the Court resolved the question of the retroactivity of the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1602-11, in the affirmative, but reserved the question of how much deference should be accorded to views of the Executive Branch in asserting jurisdiction over a foreign sovereign, see Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004).
We consider the latter question today. The past two presidential administrations, notwithstanding their differences in political affiliation, have committed the United States to a policy of resolving Holocaust-era restitution claims through international agreements rather than litigation. Consistent with that policy, the United States has engaged in extensive international negotiations culminating in a 2001 executive agreement with Austria to establish a fund to compensate Austrian Jews (and their heirs and successors) whose property was confiscated during the Nazi era and the Second World War. Distributions from the Austrian compensation fund remain, however, contingent on the dismissal of this case. Accordingly, the United States has submitted a Statement of Interest urging dismissal.
In light of the Supreme Court’s political question jurisprudence, as well as its recent rulings directing “case-specific deference” to the expressed foreign policy interests of the United States, Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2766 n. 21, 159 L.Ed.2d 718 (2004); see also Altmann, 541 U.S. at 702, 124 S.Ct. 2240, we hold that deference to a statement of foreign policy interests of the United States urging dismissal of claims against a foreign sovereign is appropriate where, as here, (1) the Executive Branch has exercised its authority to enter into executive agreements respecting the resolution of those claims; (2) the United
BACKGROUND
Plaintiffs are present and former nationals of Austria, and their heirs and successors, who seek compensation for the taking of their property in that country during the Nazi Era and the Second World War.
I. District Court Proceedings
Plaintiffs comprise a class of “present and former citizens and residents of Austria of Jewish descent [and their heirs and beneficiaries] who ... were victims of Nazi persecution [and] whose assets were converted and human rights were barbarously violated” from 1938 to 1945. Compl. ¶ 2.
Because plaintiffs sought to hold Austria liable in courts of the United States, and because, under the FSIA, “a foreign state is presumptively immune from the jurisdiction of United States eourts[,] unless a specified [statutory] exception applies,” Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993),
Austria moved for dismissal on sovereign immunity grounds, arguing that the exceptions to sovereign immunity embodied in the FSIA should not be applied retroactively to conduct that predates that statute’s enactment in 1976. In an order dated June 5, 2002, the District Court declined to rule on Austria’s motion to dismiss and instead ordered the parties to engage in limited discovery to settle, primarily, issues of subject-matter jurisdiction. Whiteman v. Fed. Republic of Austria, No. 00 Civ. 8006(SWK), slip op. at 5 (S.D.N.Y. June 5, 2002). Austria appealed that interlocutory discovery order to this Court, No. 02-9361, and filed a petition for a writ of mandamus to compel the District Court to rule on the pending motion to dismiss, No. 02-3087.
We consolidated these actions with the appeal in Garb v. Republic of Poland (No. 02-7844) for oral argument.
II. This Court’s August 6, 2003 Summary Order
We heard this appeal on April 15, 2003, and, in light of a supervening and controlling decision by another panel of our Court in Abrams v. Société Nationale des Che-mins de Fer Francais, 332 F.3d 173 (2d Cir.2003), we entered a summary order on August 6, 2003, (1) vacating the District Court’s June 5, 2002 discovery order; and (2) denying Austria’s petition for a writ of mandamus to compel the District Court to decide the pending motion to dismiss, see Garb, 72 FedAppx. at 855.
Relying on Abrams, we stated that this case “raise[d] the threshold questions whether and on what terms the federal courts have jurisdiction under the [FSIA] to adjudicate the liability of sovereign states for conduct occurring prior to the statute’s enactment [in 1976].” Id. at 853. We explained, bound as we then were by Abrams, that whether the FSIA could be retroactively applied depended upon whether doing so would have an “impermissible ‘retroactive effect’ — that is, whether applying the FSIA would ‘impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to
As required by Abrams, we remanded this case to the District Court to determine “the Department of State’s policy prior to [the enactment of the] FSIA with respect to sovereign immunity for ... Austria in the circumstances presented in” this case. Id. at 854.
Austria then moved for a stay of the issuance of our mandate pending its petition to the Supreme Court for a writ of certiorari; we granted this motion on September 10, 2003.
On June 14, 2004, the Supreme Court granted Austria’s petition for writ of certiorari, vacated our judgment, and remanded this ease to us “for further consideration in light of Republic of Austria v. Altmann, 541 U.S. [677], 124 S.Ct. 2240[ ] (2004).” Republic of Austria v. Whiteman, 542 U.S. 901, 124 S.Ct. 2835, 159 L.Ed.2d 265 (2004).
III. Participation of the United States Government
Since the Supreme Court’s remand, the parties and various amici curiae, including the United States, have filed supplemental letter briefs with this Court with respect to a post-AZimcwm disposition of this appeal. The United States, as amicus curiae, has filed a letter brief, supplementing a Statement of Interest it submitted to the District Court, and restating its view that there are no principles of international law that proscribe or regulate the taking by States of the property of their own nationals. See Letter of Gregory G. Katsas, Deputy Assistant Attorney General, Department of Justice, and William H. Taft, IV, The Legal Adviser, Department of State, at 8-12 (Sept. 9, 2004) (“United States Supplemental Letter”).
Underscoring that “[n]o price can be put on the suffering that these victims endured[,]” and concluding that “the moral imperative remains to provide some measure of justice and to do so in the victims’ remaining lifetimes[,]” the United States asserted its foreign policy interest that “matters of Holocaust-era restitution and compensation ... be resolved through negotiation and cooperation, rather than subjecting victims and their families to the prolonged uncertainty and delay of litigation.” Id. at 2. Accordingly, the United States has informed the Court that
[i]n January 2001, after facilitating multilateral negotiations involving governments, companies, and victims’ representatives, the United States and Austria concluded an executive agreement that led to the creation of the General Settlement Fund [“GSF”], a fund to be capitalized with $210 million plus interest to make payments to Austrian victims of Nazi-era persecutions. Approximately 20,000 claims have already been submitted to the GSF, but full funding of the GSF awaits dismissal of this litigation ....
*63 [I]t is in the foreign policy interests of the United States for this action to be dismissed on any valid legal ground. The United States and Austria have entered into an executive agreement, which led to the establishment of [the GSF] to make payments to certain victims of the Nazi era whose property was confiscated, including members of the proposed plaintiff class. It would be in the interests of the United States for the GSF to be the exclusive remedy for all such claims, and our foreign policy interests favor an all-embracing and enduring legal peace for Austria and Austrian companies with respect to claims such as plaintiffs’. Payments under the GSF will not begin until all prior litigation pending in United States courts has been dismissed. This is the final case remaining. The continued pendency of plaintiffs’ claims thus impedes the success of this important foreign policy initiative, and threatens the foreign policy interests of the United States.
United States Supplemental Letter, at 2, 6 (emphases added) (citation omitted).
a. Negotiations and International Agreements Leading to the Creation of the General Settlement Fund
The expressed views of the United States must be understood against the backdrop of over fifty years of diplomatic negotiations with the government of Austria regarding the settlement of Nazi-era claims. In Article 26 of the State Treaty for the Re-Establishment of an Independent and Democratic Austria (“Austrian State Treaty”) — a multilateral treaty ratified by the President of the United States on June 24, 1955 and that entered into force on July 27, 1955 — Austria agreed to provide restitution for property that it had confiscated “on account of the racial origin or religion of the owner” during the Holocaust and Second World War. See State Treaty for the Re-Establishment of an Independent and Democratic Austria, May 15, 1955, art. 26, 6 U.S.T. 2369, 2435-36. Soon thereafter, in 1958, the United States agreed that it “would no longer intervene diplomatically on behalf of claimants under Article 26” if Austria acted to settle victims’ claims in good faith. See IX Foreign Relations of the United States, 1958-1960, at 769-70 (Glenn W. LaFantasie ed., 1993). This understanding was then memorialized in a May 1959 exchange of diplomatic notes, which constituted an executive agreement between the United States and Austria that entered into force on May 22, 1959.
In February 2000, partly in response to class action litigation in United States courts, negotiations involving the government of Austria and attorneys representing Holocaust victims commenced under the active leadership of the United States Government. See Declaration of Stuart E. Eizenstat, Deputy Secretary of the Treasury and Special Representative of the President and Secretary of State on Holocaust Issues ¶ 5 (Jan. 19, 2001) (“Eizenstat Declaration”) (text reproduced at Supp. App. at 1039-54 and in United States Department of State, Digest of United States Practice in International Law for 2001, available at http://www.state. gov/documents/organization /16561.pdf.) Over the next nine months, negotiations focused principally “on a proposed initiative to establish a fund to make payments to victims
According to Deputy Secretary of the Treasury Stuart E. Eizenstat, the co-chair of these negotiations, “[t]he parties ... anticipated that at the conclusion of an agreement concerning the establishment of a fund for Nazi-era forced and slave laborers who worked on the territory of the present-day Republic of Austria, the parties would commence negotiations concerning the establishment of a similar fund for those who suffered from aryanization, theft, or destruction of property on the territory of the present-day Republic of Austria during this same time period.” Id. ¶ 6. Indeed, “as a pre-condition ... to concluding an agreement concerning forced and slave labor claims ..., Austria committed $150 million to cover certain property claims.” Id. ¶ 7.
On October 24, 2000, as the parties to the negotiations signed a Joint Statement expressing their support for the Austrian “Reconciliation Fund” as the exclusive remedy for all Nazi-era forced and slave labor claims against Austria, the governments of the United States and Austria entered into an executive agreement. Agreement Between the Austrian Federal Government and the Government of the United States of America Concerning the Austrian Fund “Reconciliation, Peace and Cooperation,” Oct. 24, 2000, 40 I.L.M. 523 (2001) (“Reconciliation Fund Agreement”). In the Reconciliation Fund Agreement, “Austria committed that the operation of the Reconciliation Fund would be governed by principles agreed [to] by the parties to the negotiations, and the United States committed to take certain steps to assist Austria and Austrian companies in achieving ‘legal peace’ in the United States with respect to forced and slave labor claims arising out of the Nazi era and World War II (and any other claims covered by the Reconciliation Fund).” Eiz-enstat Declaration ¶ 8. Moreover, the United States undertook to “take appropriate steps to oppose any challenge to the sovereign immunity of Austria with respect to ... other claims arising out of the National Socialist era or World War II for which Austria and the United States agree that a suitable potential remedy has been provided.” Reconciliation Fund Agreement, 40 I.L.M. at 525 (emphasis added). The Reconciliation Fund Agreement entered into force by exchange of diplomatic notes on December 1, 2000, in the final months of the administration of President William J. Clinton. See Eizenstat Declaration ¶ 8.
In October 2000, negotiations also commenced concerning the creation of the General Settlement Fund (“GSF”) “to address all property/aryanization claims against Austria and/or Austrian companies arising out of the Nazi era and World War II, and all other Nazi-era claims against Austria and/or Austrian companies not covered by the Reconciliation Fund.” Id. ¶ 9. Again co-chaired by Eizenstat, these negotiations “included the United States, the Austrian Federal Government, Austrian companies, and the representatives of the victims including the Conference on Jewish Material Claims, a non-governmental organization created to negotiate for and administer compensation for Nazi crimes to Jewish people around the world.”
These negotiations came to fruition on January 17, 2001, when “the parties to the negotiations gathered in Washington to sign a Joint Statement concluding the negotiations, and expressing their support for the GSF as the exclusive remedy for all claims arising against Austria and/or Austrian companies arising out of or relating to the [Nazi] Era or World War II,” with certain exceptions not relevant here.
On June 6, 2001, the government of Austria adopted legislation creating the GSF. Id. at 6. On the same day, “the Austrian Federal Government provided the United States Government with a diplomatic note stipulating that Austria had fulfilled the obligations necessary to bring into force” the GSF agreement. Id. at 7.
b. The GSF as a Remedy for Nazi-Era Property/“Aryanization” Claims
Austria’s GSF legislation establishes an independent three-member Claims Committee to consider Nazi-era claims against Austria, with the United States and Austria each selecting one committee member, who would jointly appoint a chairperson. See United States Statement of Interest, at 8-9; see also GSF Agreement, Annex A ¶ 2a, 40 I.L.M. at 571. The claims committee is required “to establish simplified procedures” and to use “relaxed standards of proof.” United States Statement of Interest, at 9; see also GSF Agreement, Annex A V 2.c, 40 I.L.M. at 571. One half of GSF funds will be allocated through a “claims-based” process on a pro-rata basis, and the other half through an “equity-based” process on a per-household basis. Eizenstat Declaration ¶ 19; see also GSF Agreement, Annex A ¶ 2.f-h, 40 I.L.M. at 572-73.
In its Statement of Interest, the United States particularly underscores that “all victims with Nazi-era claims against Austria and/or Austrian companies ... are eligible to submit claims to the GSF.” United States Statement of Interest, at 13 (emphasis in original). Upon considering the age of Holocaust survivors, the level of GSF funding, the allocation of GSF funds, and the GSF’s eligibility criteria, the United States represents to us that “the results of the negotiations as embodied in the GSF are fair under all the circumstances.” Id. at 20; see also id. at 20-22. Indeed, the position of the United States is that the GSF Agreement “represent[s] a definitive statement of U.S. foreign policy that the GSF provides the best mechanism for resolving claims such as plaintiffs’, by assuring broad coverage of victims and broad participation by companies, which could not be possible through judicial proceedings, and providing as expeditious as possible a mechanism for making fair and speedy payments -to now elderly victims.” United States Supplemental Letter, at 8 (citations and internal quotations marks omitted).
c. United States Foreign Policy Interests in the GSF
The United States further represents to us that it is in its “foreign policy interests ... for the GSF to be the exclusive forum and remedy for the resolution of all claims against Austria ... arising out of or relating to the National Socialist Era or World War II,” and that “the United States Government believes that all [such claims] should be pursued through the GSF instead of the courts.” United States Statement of Interest, at 15. According to the United States, its interests in the implementation of the GSF are five-fold.
First, the United States invokes its “important policy objective ... to bring some measure of justice to Holocaust survivors and other victims of the Nazi era, who are elderly and are dying at an accelerated rate, in their lifetimes.” Id. “[T]he United States believes the best way to accomplish this goal is through negotiation and cooperation,” and it represents to us that the GSF “is an excellent example of how such cooperation can lead to a positive result.” Id. Therefore, it is the view of the United States that the GSF “will provide benefits to more victims, and will do so faster and with less uncertainty than would litigation.”
Second, it is the position of the United States that the establishment of the GSF
will strengthen the ties between the United States and ... Austria.... Since 1945, the United States has sought to work with Austria to address the consequences of the Nazi era and World War II through political and governmental acts, beginning with the first compensation and restitution laws in post-war Austria that were passed during the Allied occupation. In recent years, Austrian-American cooperation on these and other issues has continued, and the joint effort to develop the Reconciliation Fund and the GSF has helped solidify the close relationship between the two countries.
Id. (internal citations omitted). In this light, the United States has emphasized the role of Austria in “the prosperity of Europe”- — particularly Austria’s efforts to “promot[e] democracy” and the “economic development of Central and Eastern Europe,” as well as its support for the “integration of the European Union.” Id. at 17-18. The United States has informed us that “continued cooperation with Austria” — -which, it asserts, is being advanced by the GSF — “is important to helping achieve these United States interests.” Id. at 18.
Third, the United States highlights that “the GSF helps further the United States’ interest in maintaining good relations with Israel and with Western, Central, and Eastern European nations, from which many of those who suffered during the Nazi era and World War II come.” Id.
Fourth, the United States anticipates that the alternative to the GSF- — -“years of litigation whose outcome would be uncertain at best, and which would last beyond the expected life span of the large majority of survivors,” id. — “could lead to conflict among survivors’ organizations and among survivors and Austria and Austrian industry, conflicts into which the United States Government would inevitably be drawn,” id. at 18-19. The Government further warns that such conflict would likely include “threats of political action, boycotts, and legal steps against corporations from Austria” — events that would “set[] back Austrian-American economic cooperation.” Id. at 19.
Finally, the United States informs us that the GSF
is a fulfillment of a half-century effort to complete the task of bringing a measure of justice to victims of the Nazi era. It is in the foreign policy interests of the United States to take steps to address the consequences of the Nazi era, to learn the lessons of, and teach the world about, this dark chapter in European history and to seek to ensure that it never happens again.
Id. (internal quotation marks omitted). Although the United States acknowledges that “no amount of money will ever be enough to make up for Nazi-era atrocities,” it underscores that the GSF would make substantial additional funds and other avenues of relief available. Id. at 19-20.
Under the GSF Agreement, a “precondition to allowing the GSF to make payments to victims” is the “dismissal of all pending Nazi-era property/aryanization claims against Austria and/or Austrian companies (as well as any other claim covered by the GSF).” Id. at 19; see also GSF Agreement, Annex C, 40 I.L.M. at 579-80. The United States informs us
DISCUSSION
I. The Effect of Altmann
On remand, we must first determine how Altmann informs our disposition of this case. In Altmann, the Supreme Court departed from what it termed a preexisting “antiretroactivity presumption,” 541 U.S. at 696, 124 S.Ct. 2240, and held that the FSIA, including its exceptions, is applicable to conduct that preceded its enactment. The Court explained that because the doctrine of foreign sovereign immunity “reflects current political realities and relationships,” id., courts have traditionally “resolved questions of foreign sovereign immunity by deferring to the decisions of the political branches,” id. (internal quotation marks omitted). The Court identified the FSIA as “the most recent such decision” and, “absent contraindications,” held that courts should defer to it — -that is, apply it retroactively — rather than “presume” it inapplicable “merely because it postdates the conduct in question.” Id.
Yet the Altmann Court “emphasized] the narrowness of [its] holding,” attributable in part to the particular posture assumed by the Executive Branch in that case. Id. at 700-02, 124 S.Ct. 2240. The Court underscored that the United States Government had chosen not to submit a statement of its foreign policy interests implicated by the exercise of jurisdiction in Altmann. Id. at 701-02 & n. 22, 124 S.Ct. 2240. The Court then advised that in future cases, “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” Id. at 702, 124 S.Ct. 2240 (footnote omitted). Since no such State Department opinion was expressed in Altmann, the Court declined to explicate further the circumstances under which it would be appropriate for a federal court to defer to a statement of foreign policy interests of the United States in deciding whether to assert jurisdiction over a foreign sovereign in a particular case.
A few weeks after its Altmann decision, the Court again urged “case-specific deference to the political branches” in Sosa, 124 S.Ct. at 2766 n. 21. Relying on Altmann, the Sosa Court stated (albeit in dicta) that
II. Deference to the United States Statement of Interest
Unlike Altmann, this case has elicited a statement of interest in which the United States invoked “its foreign policy interests” to urge the dismissal of plaintiffs’ claims. When the Government first presented its statement of interest to the District Court, it did not urge that Court to rest on the foreign policy interests of the United States as “an independent legal basis for dismissal.” United States Statement of Interest, at 20. In the wake of Altmann, however, the United States no longer offers this qualification and instead asserts that deference to “the views of the Executive on this nation’s foreign policy interests in determining whether to exercise jurisdiction in a particular case” supports the dismissal of plaintiffs’ claims. United States Supplemental Letter, at 1; see also id. at 4-8. We are, therefore, squarely faced with the issue reserved in Altmann and Sosa — when, and to what extent, should the stated foreign policy interests of the United States be accorded deference.
Judicial deference to the Executive Branch on questions of foreign policy has long been established under the prudential justiciability doctrine known as the “political question” doctrine, which we apply here. See, e.g., Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (“Not only does resolution of [foreign relations] issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views.” (footnotes omitted)). Yet the Supreme Court has warned that
it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our eases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.
Id. at 211-12, 82 S.Ct. 691.
We, too, have emphasized that [n]ot every case “touching foreign relations” is nonjusticiable and judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights. We believe a preferable approach is to weigh carefully the relevant considerations on a case-by-case basis.
Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir.1995) (internal citations omitted); see also Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, 937 F.2d 44, 49 (2d Cir.1991) (“[T]he doctrine is one of political
In pursuing a “case-by-case” inquiry under the political question doctrine, we have consistently employed one or more of the “six independent tests” identified by the Supreme Court in Baker v. Carr:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Vieth v. Jubelirer, 541 U.S. 267, 277-78, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691); see also Hwang Geum Joo v. Japan, 413 F.3d 45, 48 (D.C.Cir.2005) (applying the six Baker v. Carr tests before dismissing a FSIA claim on grounds of nonjustici-ability under the political question doctrine); Kadic, 70 F.3d at 249 (relying on the six Baker v. Carr tests in a foreign relations context); Can v. United States, 14 F.3d 160,163 (2d Cir.1994) (same).
Our inquiry into the proper deference to be accorded to the United States Statement of Interest is guided by our application of the political question doctrine because this doctrine “reflect[s] the judiciary’s concerns regarding separation of powers,” Kadic, 70 F.3d at 249.
We need not examine each of the six Baker tests in turn, for it is clear that this case meets the fourth test; in other words, “a court’s undertaking independent resolution” of this claim is impossible “without expressing lack of the respect due” the Executive Branch.
We further conclude that “a court’s undertaking independent resolution” of plaintiffs’ claims would “express[ ][a] lack of ... respect,” Baker, 369 U.S. at 217, 82 S.Ct. 691, for the foreign policy interests of the United States as expressed in the GSF Agreement and elaborated upon in the United States Statement of Interest and Supplemental Letter. This is the “fi
In the meantime, the continued pen-dency of this case — and the consequent delay in the implementation of the GSF— “impedes the success of this important foreign policy initiative” and “threatens the foreign policy interests of the United States,” United States Supplemental Letter, at 6, most obviously the Government’s “important policy objective ... to bring some measure of justice to Holocaust survivors and other victims of the Nazi era, who are elderly and are dying at an accelerated rate, in their lifetimes,” United States Statement of Interest, at 15 (emphasis added). We are also particularly mindful of the United States’ representation that the implementation of the GSF Agreement would advance the United States’ foreign relations with Austria, as well as with Israel and Western, Central, and Eastern European nations. See id. at 17-19; see also Background III(c), ante. These foreign policy interests — which, we are informed, have animated the Government’s “half-century effort” culminating in the signing of two recent executive agreements, United States Statement of Interest, at 19 — are precisely ones that “defy judicial application,” “involve the exercise of a discretion demonstrably committed to the executive,” and “uniquely demand single-voiced statement of the Government’s views,” Baker, 369 U.S. at 211, 82 S.Ct. 691. In short, they counsel strongly in favor of deference to the Executive.
We therefore hold that plaintiffs’ claims against Austria and its instrumentalities must be dismissed as nonjusticiable under the political question doctrine. In so holding, we defer to a United States statement of foreign policy interests in this particular case, which is the one remaining litigation obstacle to the implementation of the GSF Agreement.
For the reasons stated above,
(1) we vacate the discovery order of the District Court in No. 02-9361, and enter judgment dismissing plaintiffs’ claims against Austria and its instru-mentalities;
(2) we dismiss Austria’s petition for a writ of mandamus seeking to compel the District Court to rule on the pending motion to dismiss, No. 02-3087, as moot in light of our disposition of No. 02-9361; and
(3) we remand the cause to the District Court for consideration of claims against any remaining defendants.
In remanding for further proceedings with respect to any remaining defendants, we are mindful that the implementation of the GSF — and the advancement of the foreign policies of the United States embodied in the GSF Agreement — may depend upon the dismissal of claims against such defendants. Because these claims are not, at the present time, on appeal before us, we are without jurisdiction to consider them and accordingly express no view as to whether any legal grounds exist for their dismissal.
In addition, we note the United States policy of bringing “some measure of justice” to Holocaust victims during their lifetimes, United States Statement of Interest, at 15, and the urgent request of the American Council for Equal Compensation of Nazi Victims from Austria that this Court “take affirmative action to ensure that compensation is paid to Holocaust survivors during their lifetimes,” Br. of Amicus Curiae Am. Council for Equal Compensation of Nazi Victims from Austria, at 9. In light of these extraordinary circumstances, we direct the District Court to resolve, within sixty days after the mandate issues in this case, any motions by any party or by the Government, filed within twenty-one days after the mandate issues in this case, that seeks to dismiss on any ground (including, inter alia, nonjusti-ciability, see note 16 ante) those that must be dismissed in order for the GSF to be implemented. Should the District Court find it difficult or impossible to resolve such motions within the prescribed time-frame, this case shall be transferred to another District Judge in the Southern District of New York.
Having twice considered this case over the course of more than two years, and in the interests of judicial economy and expeditious resolution of these pressing claims, we direct the Clerk of this Court to expedite any appeal from the District Court’s further orders or judgments in this case and to refer any such appeal to this panel. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994).
. References to the "Complaint” are to the first amended complaint dated August 24, 2001. Although the complaint was again amended on November 11, 2002, the second amendment occurred after defendants-appellants filed a Notice of Appeal, thereby conferring jurisdiction on this Court to review portions of the District Court's June 5, 2002 and October 9, 2002 orders.
. See also 28 U.S.C. § 1604 ("[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.”); Kato v. Ishihara, 360 F.3d 106, 107-08 (2d Cir.2004) (describing the FSIA as codifying a "restrictive theory of sovereign immunity, under which foreign sovereigns ... enjoy immunity from suit in United States courts, subject to a few, enumerated statutory exceptions” (internal quotation marks, footnote, and citations omitted)).
.28 U.S.C. § 1605(a)(1) provides that
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (1) in which the foreign state has waived its immunity either explicitly or by implication,*61 notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiverf.]
. 28 U.S.C. § 1605(a)(2) provides that
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States!.]
. 28 U.S.C. § 1605(a)(3) provides that
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States[.]
. The Garb case will be decided in a separate opinion by this Court.
. We note that both the United States Statement of Interest and the United States Supplemental Letter were submitted jointly by the United States Department of Justice and the Department of State, thus representing the considered views of both Departments — indeed, of the Executive Branch of the Government — that “the foreign policy interests of the United States support dismissal of plaintiffs’ claims.” United States Supplemental Letter, at 1.
. Plaintiffs allege that "Austria has failed and refused to live up to its State Treaty obligations to effectuate restoration, or even the alternative Treaty obligation of recompense where restoration is impossible.” Compl. ¶ 21.
. The Conference on Jewish Material Claims ("CJMC”) is an umbrella organization whose member organizations include the American Gathering/Federation of Jewish Holocaust Survivors, the American Jewish Committee, the American Jewish Congress, B'nai B'rith International, the Centre of Organizations of Holocaust Survivors in Israel, and the World Jewish Congress. See Eizenstat Declaration, at 4 n. 2. For more information about the
. Specifically, it was agreed that GSF not be the exclusive remedy for claims for in rem restitution of works of art and claims covered by the Reconciliation Fund. See Eizenstat Declaration ¶ 10. It should be assumed throughout this opinion that these two categories of claims are excluded from any general references to "all claims” against Austria arising out of or relating to the Nazi Era or World War II.
. The United States Statement of Interest is echoed by amicus curiae American Council for Equal Compensation of Nazi Victims From Austria ("ACOA”), which describes itself as "the single organization representing Holocaust survivors from Austria in America,” and whose "sole mission” for the past thirty-nine years "has been to secure equal compensation of all Nazi victims from Austria,” Br. of Amicus Curiae Am. Council for Equal Compensation of Nazi Victims from Austria at 4. The ACOA urges us to dismiss this action in order to secure to Holocaust victims the payments now available to them from the GSF as a result of the diplomatic negotiations undertaken on their behalf by the United States — payments that are being withheld pending the termination of this action.
. Our dissenting colleague suggests that we should remand once more "for a determination of whether circumstances permit and warrant discretionary deference to the executive foreign policy interests stated here.” Dissent, at [83, n. 28]. Quite apart from the considerable risk that any further delay would impose upon elderly victims currently awaiting compensation, the dissent's recommendation would, in effect, encourage a federal district court to second-guess the United States Government's foreign policy determination that — for a host of reasons, see United States Statement of Interest, at 15-20, including, inter alia, the importance of preserving relations with allied nations — the United States should honor its commitment to the GSF as the mechanism for resolving this class of Nazi-era claims and to terminate this litigation "on any valid legal ground,” United States' Supplemental Letter, at 6. Because we decide, pursuant to the political question doctrine and related jurisprudence concerning deference to the Executive in matters of foreign policy, that such questions are nonjusti-ciable, we decline our colleague's invitation to prolong this litigation further by a remand of dubious purpose.
. While we readily acknowledge that the Supreme Court has not yet had occasion to reach a holding identical to that of the case at bar, we nonetheless conclude, in light of the Court's recent pronouncements and for the reasons elaborated below (1) that deference to the Executive is appropriate in certain cases and (2) that the case at-bar is one such case.
.Our dissenting colleague argues that by addressing the question of justiciability in light of the Supreme Court's pronouncements regarding the appropriate scope of judicial deference to the Executive in the conduct of foreign relations, we “conflat[e]” two distinct strands of law, thereby "set[ting] a dangerous precedent.” Dissent, at. [83], Rather than analyzing the broad language of Baker in a vacuum, however, it is appropriate that our political question analysis be informed by the well-established principles concerning the need for deference to the Executive Branch— one of the "coordinate branches of government” that is "due respect” within the Baker framework.
. Nothing in this opinion should be understood to indicate that the District Court may not dismiss plaintiffs’ claims against parties that are not foreign sovereigns or instrumen-talities of foreign sovereigns (and thus are not appellants here) under the "political question” doctrine.
. We note that, in Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir.2004), the Eleventh Circuit recently declined to dismiss a Holocaust-related claim against Ger
Although the precise language that the Eleventh Circuit found significant in Ungaro-Benages also appears in the executive agreements between the United States and Austria, we respectfully disagree with the Eleventh Circuit's view that such a provision renders the "political question” doctrine inapplicable. It is true that the United States carefully declined to "suggest” in its agreements with Austria that its statements of interest would necessarily lead to the dismissal of all relevant litigation. Given the complexity of the issues at stake, this was an understandable and prudent clarification by the United States’ diplomatic representatives in a communication with a foreign State regarding the possible actions of the independent American judiciary under then-prevailing domestic United States law.
But in declining to guarantee to Austria that courts would defer to its statements of interest, the United States surely did not express intent to waive the right to such deference. The United States never indicated that its foreign policy interests should not, as a matter of law, lead to the dismissal of a claim covered by its executive agreements. Furthermore, the United States never stated that it would not seek and, in its post-Altmann submission does indeed seek, dismissal on the basis of its foreign policy interests. See United States Supplemental Letter, at 1. That the United States did not represent to Austria that its statements of interest would be accorded deference in every relevant judicial forum does not preclude us from according deference to the views of the United States in this case.
Our dissenting colleague asserts that by dismissing this litigation, we will, in effect, grant by judicial fiat that which Austria did not succeed in obtaining during the course of its negotiations with the United States Government. In the view of the dissent, this asserted undue benefit to Austria would do "more than what was anticipated in the agreement” and thereby "undermine! ] the political balance clearly struck" by the Clinton Administration Dissent, at [80]. We disagree for several reasons. First, the mere fact that, in the view of the dissent, the United States "could have guaranteed dismissal of domestic claims against Austria,” Dissent, at [79], has no bearing on whether, at this juncture, it would be disruptive to United States foreign policy interests for this litigation to proceed; indeed, the United States' international commitment to seek dismissal “on any valid legal ground” is entirely consistent with its view, then and now, that this litigation is harmful to U.S. foreign policy interests. Second, even if, ar-guendo, at the time of entering negotiations with Austria, the United States Department of State was not concerned about the precise ramifications of this litigation, intervening developments in foreign policy would provide an additional basis upon which the Executive Branch could now seek dismissal of this litigation. Third, representations by the United States in the course of diplomatic negotiations with the Austrian government were made against the backdrop of a legal landscape different from that which now prevails; to suggest that the United States is somehow precluded from seeking dismissal of this litigation because of its negotiating position with the Austrians would effectively subordinate the principles animating the political question doctrine to the undefined need to preserve the presumed "political balance” struck by a pri- or presidential administration in our country's negotiations with a foreign state. (It is worth noting that, whereas our dissenting colleague reconstructs the United States' negotiating strategy from a published memoir of a high-ranking Clinton administration official, our findings with respect to the foreign policy interests of the United States are drawn strictly from the formal litigation position asserted in this Court by the Executive Branch, including a sworn declaration, submitted in support of dismissal of these claims "in the enduring and high interest of the United States to vindicate [the GSE],” Eizenstat Declaration ¶ 38,
. In applying this fourth Baker test, courts have been particularly attentive to the views of the United States Government about the consequences of proceeding with litigation. See Kadic, 70 F.3d at 250 (stating that the views of the Executive are entitled to “respectful consideration" in applying the fourth through sixth Baker tests, although these views "would not necessarily preclude adjudication”); see also Alperin v. Vatican Bank, 410 F.3d 532, 556-57 (9th Cir.2005) (noting "the Executive Branch’s continuing silence on the Holocaust Survivors' claims," but stating that "[h]ad the State Department expressed a view, that- fact would certainly weigh in evaluating this fourth Baker formulation”).
Our decision here to rely principally on the fourth Baker test should not be taken to imply that we agree with our dissenting colleague's conclusion that "Whiteman's complaint clearly would survive the other Baker tests.” See Dissent, at [76], Moreover, the mere fact that the Supreme Court has indicated recently (and quite tentatively) that the Baker tests "are probably listed in descending order of both importance and certainty” provides no indication at all that the latter tests have somehow been repealed or are no longer proper grounds for application of the political question doctrine. See Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004); see also Alperin, 410 F.3d at 546 (focusing on first two Baker tests "because they are the most significant in the face of the specific allegations of the Complaint”).
. An "alternative” holding urged by the United States is that subject-matter jurisdiction to consider plaintiffs' claims does not lie under the FSIA. See United States Supplemental Letter, at 1; see also id. at 8-15. Although this argument is both complex and important, it need not be the first in our order of consideration. We have previously held that a federal court may consider "threshold” non-merits grounds for dismissing a claim— including, for example, deference to the foreign affairs powers of the Executive pursuant to the "political question” doctrine — before determining whether it has subject-matter jurisdiction to consider that claim. See Can v. United States, 14 F.3d 160, 162 n. 1 (2d Cir. 1994).
More recently, the District of Columbia Circuit held that it "need not resolve the question of the district court’s subject-matter jurisdiction under 28 U.S.C. § 1330 — that is, whether Japan is entitled to sovereign immunity under the FSIA — before considering whether the complaint presents a nonjusticia-ble political question.” Hwang Geum Joo v. Japan, 413 F.3d 45, 47-48 (D.C.Cir.2005) (emphasizing that "a dismissal under the political question doctrine” is not "an adjudication on the merits”) (internal citations omitted). In Hwang Geum Joo — which involved a
Accordingly, while we apply the political question doctrine to the facts of this case, we express no opinion as to whether plaintiffs could, in the absence of the United States' expressed foreign policy interests, bring their claims against Austria, a foreign sovereign, pursuant to any exceptions enumerated in the FSIA, 28 U.S.C. §§ 1605-1607. Although our dissenting colleague suggests in passing that a foreign government's expropriation of property belonging to its own nationals (as opposed to aliens) violates "universally recognized norms of international law,” Dissent, at [77], this proposition is not free of doubt; indeed, it is, at a minimum, a complex and controversial question. Cf. Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 429 (2d Cir. 1987) (Kearse, J., dissenting) (noting the problem of allowing jurisdiction to "ebb and flow with the vicissitudes of 'evolving standards of international law’ ”), rev’d, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).
. Our dissenting colleague warns that affording deference to the Executive in the circumstances presented will "undermine[] the FSIA by allowing the Executive to determine the fate of litigation against foreign sovereigns simply by arguing that dismissal is in the Executive’s foreign policy interests.” Dissent, at [81], These fears are overstated, however, because we do not hold that the Executive Branch may, in all circumstances, preclude courts from assessing whether a foreign sovereign may be sued in U.S. courts pursuant to one or more of the enumerated exceptions of the FSIA; rather, we simply hold that, in the circumstances presented, deference to the Executive is appropriate. Moreover, an alternative, categorical approach that would allow