Alperin v. Vatican Bank

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 03-15208
situated; LIZABETH LALICH; MLADEN
DJURICICH; ROBERT PREDRAG  D.C. No.
GAKOVICH; NEVENKA VUKASOVIC CV-99-04941-MMC
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

6643
6644 ALPERIN v. VATICAN BANK
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; No. 03-16166
VLADIMIR MORGUNOV, on behalf of D.C. No.
themselves and all other persons CV-99-04941-MMC
similarly situated;
ORGANIZATION OF UKRAINIAN  AMENDED
OPINION AND
ANTIFASCIST RESISTANCE FIGHTERS; AMENDED
UKRAINIAN UNION OF NAZI CONCURRENCE/
VICTIMS AND PRISONERS; VLADIMIR DISSENT
BRODICH; WILLIAM DORICH; IGOR

ALPERIN v. VATICAN BANK 6645
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;

6646 ALPERIN v. VATICAN BANK
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.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
October 7, 2004—San Francisco, California
Filed April 18, 2005
Amended June 9, 2005
Before: Stephen S. Trott, M. Margaret McKeown,
Circuit Judges, and Milton I. Shadur, Senior Judge.*
Opinion by Judge McKeown
Partial Concurrence and Partial Dissent by Judge Trott
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
6650 ALPERIN v. VATICAN BANK
COUNSEL
Kathryn Lee Boyd, Pepperdine University Law School,
Malibu, California; Jonathan H. Levy, Cincinnati, Ohio;
Thomas Easton, Eugene, Oregon, for the plaintiffs-appellants.
Jeffrey S. Lena, Berkeley, California; Paul E. Vallone, Hin-
shaw & Culbertson, San Francisco, California, for the
defendants-appellees.
OPINION
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
(1962). The justiciability inquiry is limited to “ ‘political
questions,’ not . . . ‘political cases,’ ” id. at 217, and should
be made on a “case-by-case” basis, id. at 211.
ALPERIN v. VATICAN BANK 6651
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 124
S. Ct. 2835 (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 dis-
pute. We conclude that some of the claims are barred by the
political question doctrine and some of the claims are justicia-
ble. Although the parties have multiple procedural and sub-
stantive 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 Move-
ment (Hrvatski Oslobodilacki Pokret), profited from the geno-
cidal 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
6652 ALPERIN v. VATICAN BANK
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 doc-
trine. 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 jurisdic-
tion 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, restitu-
tion, and an accounting)—are not barred by this doctrine. In
contrast, the broad human rights allegations tied to the Vati-
can 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 to reach the political question doctrine vis-à-vis
this defendant.
Bearing in mind that “[t]he decision to deny access to judi-
cial relief is not one we make lightly,” Liu v. Republic of
1
Even though a plaintiff need make only a prima facie showing of juris-
diction at this stage in a litigation, Glencore Grain Rotterdam B.V. v. Shiv-
nath Rai Harnarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002), the
Holocaust Survivors’ bare-bones assertions that the Croatian Liberation
Movement has been “active” within the United States at some point and
at least a few members have ties to this country are insufficient for us to
conclude that the exercise of jurisdiction “does not offend ‘traditional
notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washing-
ton, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)).
ALPERIN v. VATICAN BANK 6653
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 (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 ques-
tion 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 rights, and war-
related claims. In so doing, we respect the limits of our juris-
diction as a national court, recognize the role of the Executive
in foreign relations, and stick to our role of interpreting the
law.
6654 ALPERIN v. VATICAN BANK
I. BACKGROUND
A. WORLD WAR II AND THE USTASHA TREASURY
The events at issue relate back to the actions of the Vatican
during and in the years following World War II.2 Following
Germany’s blitzkrieg through Yugoslavia in 1941, a govern-
ment composed of members of the Ustasha was proclaimed
the head of a protectorate of Italy. See Ustasha Treasury Report3
at 141. The Ustasha regime was supported throughout World
War II by German and Italian occupation forces. Id.2
Regarding terminology, the Vatican City and the Holy See are closely
related but not interchangeable entities:
The term “Holy See” refers to the composite of the authority,
jurisdiction, and sovereignty vested in the Pope and his advisers
to direct the worldwide Roman Catholic Church. . . . . Created in
1929 to provide a territorial identity for the Holy See in Rome,
the State of the Vatican City is a recognized national territory
under international law. The Holy See, however, enters into inter-
national agreements and receives and sends diplomatic represen-
tatives.
See U.S. Dep’t of State, Background Note: The Holy See (Oct. 2004),
available at http://www.state.gov/r/pa/ei/bgn/3819.htm (“Vatican Back-
ground Note”). See generally Robert John Araujo, The International Per-
sonality and Sovereignty of the Holy See, 50 Cath. U. L. Rev. 291 (2001)
(providing historical overview of the Holy See’s foreign relations and
arguing that it is a subject of international law). These nuances are not crit-
ical for purposes of this opinion. Therefore, for convenience, the term
“Vatican” will be used to refer generally to the Catholic leadership cen-
tered in the Vatican City.
3
In the late 1990s, the U.S. Government prepared a report on the
Ustasha wartime treasury as part of a larger effort “to confront the largely
hidden history of Holocaust-related assets after five decades of neglect.”
Bureau of Public Affairs, U.S. Dep’t of State, Pub. No. 10557, U.S. Allied
Wartime and Postwar Relations and Negotiations With Argentina, Portu-
gal, Spain, Sweden, and Turkey on Looted Gold and German External
Assets and U.S. Concerns About the Fate of the Wartime Ustasha Trea-
sury, Supplement to the Preliminary Study on U.S. and Allied Efforts to
Recover and Restore Gold and Other Assets Stolen or Hidden by Germany
During World War II iii (1998) (“Ustasha Treasury Report”).
ALPERIN v. VATICAN BANK 6655
Although the United States and its allies were aware to
some extent of the Ustasha’s atrocities, “It is not clear if the
Allied leaders clearly grasped that as many as 700,000 vic-
tims, most of them Serbs, had been killed at the Ustasha death
camps . . . .” Id. at 142. The State Department’s report
describes the Vatican’s role in less generous terms: “The Vat-
ican, which maintained an ‘Apostolic visitor’ in Zagreb from
June 1941 until the end of the War, was aware of the killing
campaign . . . . Croatian Catholic authorities condemned the
atrocities committed by the Ustashi, but remained otherwise
supportive of the regime.” Id. at 143.
The connections between the Vatican and the Ustasha
reportedly continued in the years following World War II:
With the defeat in May 1945 of Hitler and his satel-
lites, including puppet Croatia, the leaders of the
Ustasha fled to Italy, where they found sanctuary at
the pontifical College of San Girolamo in Rome.
This College was most likely funded at least in part
by the remnants of the Ustasha treasury, and
appeared to operate with at least the tacit acquies-
cence of some Vatican officials.
Id. at xviii. It is unclear to what extent the Vatican was aware
of these activities, but the State Department is dubious that
they were oblivious to the Ustasha’s presence:
Although no evidence has been found to directly
implicate the Pope or his advisers in the postwar
activities of the Ustasha in Italy, it seems unlikely
that they were entirely unaware of what was going
on. Vatican authorities have told us they have not
found any records that could shed light on the
Ustasha gold question.
Id. at 156.
6656 ALPERIN v. VATICAN BANK
The size and nature of the Ustasha treasury remains in con-
siderable doubt. According to the State Department, “The fig-
ure of 350 million Swiss francs (over $80 million) of Ustasha
gold that U.S. intelligence reported in 1946 remains the only
attempt to estimate the total financial resources available to
the Ustashi at the end of World War II.” Id. at 150. The State
Department cautions that this estimate “remains unsubstan-
tiated and may not include some or all of the sums reported
elsewhere.” Id.
B. THE HOLOCAUST SURVIVORS’ CLAIMS
This background section on the claims is drawn from the
Holocaust Survivors’ Third Amended Class Action Complaint
(the “Complaint”), which is detailed and lengthy and refer-
ences a number of outside sources, such as the Ustasha Trea-
sury Report. At this stage of the proceedings, we accept the
allegations as true. See California v. United States, 104 F.3d
1086, 1089 (9th Cir. 1997) (when reviewing a district court’s
grant of a motion to dismiss, this court accepts the facts
alleged in the complaint as true).
1. PLAINTIFFS
The Complaint was filed on behalf of the named plaintiffs
and the following class:
[A]ll Serbs, Jews, and former Soviet Union citizens
(and their heirs and beneficiaries), who suffered
physical, monetary and/or property losses including
slave labor, due to the systematic and brutal extermi-
nation of Jews, Serbs, and Romani by the [Ustasha],
and as a result of the occupation of the former Soviet
Union by Croatian military forces in concert with
their German occupation forces.
The potential class is massive: Plaintiff Ukrainian Union of
Nazi Victims And Prisoners “represents over 300,000 former
ALPERIN v. VATICAN BANK 6657
slave and forced laborers, prisoners, concentration camp, and
ghetto survivors.” The geographic scope of the class is also
far reaching with the Ustasha’s destruction extending beyond
Croatia to Bosnia, Yugoslavia, and the Soviet Union, includ-
ing Ukraine, Belarus, and Russia.
The jurisdictional bases of the Holocaust Survivors’ claims
are similarly expansive. They claim jurisdiction pursuant to
the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1605 (“FSIA”), 28
U.S.C. § 1331, federal common law as it incorporates custom-
ary international law and treaties, diversity jurisdiction, and
California state law.4
4
The viability of the Holocaust Survivors’ claims apart from the issue
of the political question doctrine is not before us. Nevertheless, looking
ahead, we note that the statutory grounds on which the Holocaust Survi-
vors base their claims have, for the most part, not fared well in recent liti-
gation. Just last term, the Supreme Court limited the ATS in Sosa v.
Alvarez-Machain, 124 S. Ct. 2739, 2764 (2004) (curtailing the scope of
actionable international norms under the ATS but explaining that “the
door is still ajar subject to vigilant doorkeeping”); see also Weiss v. Am.
Jewish Comm., 335 F. Supp. 2d 469 (S.D.N.Y. 2004) (dismissing claim
under the ATS for injunctive relief in connection with the construction of
a Holocaust memorial in light of the Court’s holding in Sosa). The con-
tours of the FSIA have also changed with the Supreme Court’s holding in
Republic of Austria v. Altmann, 541 U.S. 677, 124 S. Ct. 2240 (2004), that
the FSIA applies retroactively. See also Abrams v. Societe Nationale des
Chemins de Fer Francais, 389 F.3d 61, 64-65 (2d Cir. 2004) (dismissing
case for lack of subject matter jurisdiction because the French govern-
ment’s acquisition of defendant railroad company immunized it from suit
under the FSIA). In Deutsch v. Turner Corp., 324 F.3d 692, 719 (9th Cir.
2003), we held that a California statute on which the Holocaust Survivors’
claims are based in part, Cal. Civ. Proc. Code § 354.6, unconstitutionally
intruded on the foreign affairs power of the federal government. We leave
the district court to determine in the first instance to what extent the Holo-
caust Survivors have correctly invoked these and other jurisdictional
bases.
6658 ALPERIN v. VATICAN BANK
2. DEFENDANTS
The Complaint does not name the Vatican itself as a defen-
dant but rather focuses on a closely related entity, the Vatican
Bank.5 The exact relationship between the Vatican and the
Vatican Bank is less than clear at this stage of the proceed-
ings. We are in no position to make a substantive judgment
about the nature of the Vatican Bank.6 The Complaint, which
we accept at face value, distinguishes between the two enti-
ties. The Vatican Bank has its principal place of business in
the Vatican City and is headed by a Bishop, but it conducts
transactions worldwide including “for-profit merchant bank-
ing transactions in the United States, California, and else-
where.”
The actual dealings of the bank, however, are murky.
Indeed, the Vatican Bank’s holdings and its specific transac-
tions are opaque. In his declaration in support of the Holo-
caust Survivors’ motion for early jurisdictional discovery,
John Loftus—a former prosecutor with the U.S. Department
5
The Complaint also names “Unknown Catholic Religious Orders,” a
number of banking institutions (both named institutions and “Does #1-
100”) and “unknown recipients of Nazi and Ustasha loot” as defendants.
The Holocaust Survivors voluntarily dismissed their claims against defen-
dant Swiss National Bank in 2002.
6
Like its other ominous projections, the dissent jumps ahead to conclude
that this suit is “functionally” against “the Vatican itself” and “the Vatican
Bank, which is an instrumentality of the sovereign state of the Vatican,”
and possibly even the Pope. Dissent at 6705. But we are nowhere near the
point of making such an assessment. Because this case comes to us at the
motion to dismiss stage, we must accept the Complaint’s demarcation
between the Vatican Bank, which is named as a defendant, and the Vati-
can, which is not named as a defendant. Further, the potential overtones
that this case may have on relations with the Vatican leadership do not,
as the dissent suggests, warrant dismissal. See Antolok v. United States,
873 F.2d 369, 392 (D.C. Cir. 1989) (Wald, C.J., concurring in judgment
only) (“I read [Baker v. Carr] as a reminder that our focus should be on
the particular issue presented for our consideration, not the ancillary
effects which our decision may have on political actors.”).
ALPERIN v. VATICAN BANK 6659
of Justice’s Nazi-hunting unit—attests, “The Vatican Bank is
one of the most secretive financial institutions in the world.
The exact nature and ownership of the Vatican Bank is diffi-
cult to ascertain owing to the secrecy surrounding it.”
The bank’s dealings and ownership may be shrouded in
mystery, but the Vatican considers itself to have a stake in the
outcome of these proceedings. In specific reference to this
case, the Vatican’s Secretariat of State sent a Verbal Note of
Protest, dated October 23, 2000, to the U.S. Embassy in Rome
requesting as follows:
Basing itself upon the diplomatic relations which
exist between the United States of America and the
Holy See, as well as the recognition which the Gov-
ernment of the United States has accorded to the
sovereignty of the Holy See and of Vatican City
State, the Secretariat of State requests the interven-
tion of the Federal Government of the United States
of America.
The Order of Friars Minor joined the Vatican Bank in
bringing the motion to dismiss. A religious brotherhood
founded by St. Francis Assisi, the organization includes “sev-
eral Croatian Franciscan Orders in California, the United
States, Croatia, and Italy.” During World War II, “Many high
officials of the Ustasha government were Roman Catholic
clergy and, in particular, Franciscans.” These ties continued
after the war with the Order of Friars Minor providing aid to
former Ustasha.
Neither the district court nor the Holocaust Survivors dis-
tinguished between the Vatican Bank and Order of Friars
Minor in the treatment of the political question doctrine. Like-
wise, because no distinction can be made on the basis of the
pleadings, we also address the two defendants together. For
ease of reference, from this point on in the opinion we refer
to them collectively as the “Vatican Bank.”
6660 ALPERIN v. VATICAN BANK
The third defendant, the Croatian Liberation Movement, is
identified “as the successor to the Ustasha government.” The
Croatian Liberation Movement allegedly “functioned as a
government in exile and coordinated terrorist activities in the
United States and elsewhere.”
3. CAUSES OF ACTION
The Complaint describes in detail the atrocities inflicted on
the Holocaust Survivors during World War II by the Ustasha
and, more generally, by allied Fascists “believed to be Cro-
atians.” In addition to describing the looting of assets, the
Complaint recites genocidal acts of the Ustasha, including
those carried out at the “Jasenovac Concentration Camp com-
plex, termed by historians as the ‘Auschwitz of the Bal-
kans.’ ”
Upon the collapse of the Ustasha regime in 1945, the Holo-
caust Survivors maintain that “all or a portion of the Ustasha
Treasury was transferred to cooperative Roman Catholic cler-
gyman [sic] and Franciscans for transport to Rome where
Franciscans sympathetic to the Ustasha were based.” These
funds eventually found their way into the hands of the Vatican
Bank, among other recipients. As alleged in the Complaint,
“A 1948 U.S. Army Intelligence reports [sic] confirmed 2,400
kilos of Ustasha stolen gold were moved from the Vatican to
one of the Vatican’s secret Swiss bank accounts.” In the dec-
ades following World War II, the Holocaust Survivors con-
tend that the Vatican Bank and the Croatian Liberation
Movement continued to profit from transactions involving the
Ustasha treasury.
Having set forth these general allegations, the Complaint
advances five causes of action:
Conversion: The Holocaust Survivors first allege, “Defen-
dants . . . have willfully and wrongfully misappropriated and
ALPERIN v. VATICAN BANK 6661
converted the value of [property taken from the Holocaust
Survivors] and its derivative profits into their own property.”
Unjust Enrichment: Second, defendants were unjustly
enriched by “receiv[ing] stolen property given to them by
members of the Ustasha Regime, which rightfully belongs to
[the Holocaust Survivors], as well as the value of slave labor
performed.”
Restitution: The Holocaust Survivors allege in their third
claim that their “goods and property have been taken, thus
denying [them] the use and enjoyment thereof; Defendants
have wrongfully used and profited from that property.” Main-
taining that “compensation in damages is inadequate in that
the property taken cannot be replaced and the harm inflicted
cannot be undone by mere compensation,” the Holocaust Sur-
vivors call for “equitable remedies.”
Accounting: Fourth, the Holocaust Survivors request “the
equitable remedy of accounting,” alleging that “Defendants
have never accounted for or paid the value of Plaintiffs’ prop-
erty or the profits which Defendants have derived from that
property, either during World War II or since World War II
ended.”
Human Rights Violations and Violations of International
Law: Finally, the Holocaust Survivors allege:
Defendants participated in the activities of the
Ustasha Regime in furtherance of the commission of
war crimes, crimes against humanity, crimes against
peace, torture, rape, starvation, physical and mental
abuse, summary execution and genocide. Specifi-
cally, the actions and conduct of Defendants, in addi-
tion to being profitable, actively assisted the war
objectives of the Ustasha Regime.
6662 ALPERIN v. VATICAN BANK
The Complaint condemns the defendants’ aiding and abetting
of war criminals after World War II by helping them to evade
prosecution and to preserve the Ustasha treasury.
The Holocaust Survivors cite a multitude of legal bases for
these claims: “Defendants’ actions were in violation of
numerous international treaties and the fundamental human
rights laws prohibiting genocide, war crimes, crimes against
humanity and crimes against peace. Defendants’ actions vio-
lated customary international law . . . .” They also claim that
“Defendants committed torts under the laws of the United
States, requiring Defendants to pay . . . appropriate compensa-
tory and punitive damages for . . . injuries and losses.”
C. OVERVIEW OF THE POLITICAL QUESTION DOCTRINE
Our inquiry proceeds from the age-old observation of Chief
Justice Marshall that “[q]uestions, in their nature political, or
which are, by the constitution and laws, submitted to the exec-
utive, can never be made in this court.” Marbury v. Madison,
5 U.S. (1 Cranch) 137, 170 (1803). Although the principle
behind the political question doctrine was announced over
two hundred years ago in Marbury, the Supreme Court has
addressed the doctrine in surprisingly few cases. See Atlee v.
Laird, 347 F. Supp. 689, 693-703 (E.D. Pa. 1972) (three-
judge court), aff’d sub nom. mem., Atlee v. Richardson, 411
U.S. 911 (1973), (detailed “case by case” analysis of the
development of the doctrine).
[1] In the landmark case of Baker v. Carr, the Supreme
Court provided its most comprehensive discussion on the
application of the doctrine. Recognizing that the attributes of
the political question doctrine “diverge, combine, appear, and
disappear in seeming disorderliness” in various settings, the
Court set out to illuminate the “contours” of the doctrine. 369
U.S. at 210-11; see also Erwin Chemerinsky, Constitutional
Law: Principles and Policies § 2.8.1 (1997) (“In many ways,
the political question doctrine is the most confusing of the jus-
ALPERIN v. VATICAN BANK 6663
ticiability doctrines.”). The Court explained that the political
question doctrine has its roots in the separation of powers and
set forth six formulations for courts to consider in determining
whether they should defer a case to the political branches:
Prominent on the surface of any case held to involve
a political question is found [1] a textually demon-
strable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judi-
cially 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 impossi-
bility 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 embarrass-
ment from multifarious pronouncements by various
departments on one question.
369 U.S. at 217.
[2] Dismissal on the basis of the political question doctrine
is appropriate only if one of these formulations is “inextrica-
ble” from the case. Id. Although termed as “formulations” in
Baker, the plurality in Vieth v. Jubelirer, 541 U.S. 267, 124
S. Ct. 1769, 1776 (2004), recently described these criteria as
“six independent tests.” But these tests are more discrete in
theory than in practice, with the analyses often collapsing into
one another. See Nixon v. United States, 506 U.S. 224, 228-29
(1993) (describing interplay between the first and second
Baker tests). This overlap is not surprising given the common
underlying inquiry of whether the very nature of the question
is one that can properly be decided by the judiciary.
Addressing foreign affairs specifically, Baker cautioned
against “sweeping statements” that imply all questions involv-
6664 ALPERIN v. VATICAN BANK
ing foreign relations are political ones. 369 U.S. at 211 (citing
Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (“The
conduct of the foreign relations of our Government is com-
mitted by the Constitution to the Executive and Legislative—
‘the political’—Departments of the Government, and the pro-
priety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision.”)).
Instead, the Court instructed that courts should undertake a
discriminating case-by-case analysis to determine whether the
question posed lies beyond judicial cognizance. 369 U.S. at
211. Informing this inquiry are considerations of “the history
of [the question’s] management by the political branches,” its
“susceptibility to judicial handling,” and “the possible conse-
quences of judicial action.” Id. at 211-12.
Despite this caution that it is impossible to decide cases
raising the political question doctrine “by any semantic
cataloguing,” id. at 217, certain families of cases have
emerged in the foreign affairs realm. See, e.g., Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 229-31 (1986)
(interpretation of statutes involving foreign affairs is a justi-
ciable question); Goldwater v. Carter, 444 U.S. 996, 1002-04
(1979) (four-justice plurality concluding that a challenge to
the President’s unilateral termination of a treaty presents a
political question); Ludecke v. Watkins, 335 U.S. 160, 168
(1948) (termination of war is a political question); Oetjen, 246
U.S. at 302 (Executive’s recognition of a foreign government
is a political question). In general, however, Baker’s admoni-
tion has proved true that most cases involving foreign affairs
fail to fall neatly into categories on one side or the other of
the justiciable/nonjusticiable line. As a result, the overarching
Baker tests remain the starting point of our inquiry.
Following Baker, the Supreme Court has not retreated from
the analytical framework it established. See Vieth, 124 S. Ct.
at 1776 (reiterating Baker formulations); Davis v. Bandemer,
478 U.S. 109, 121-27 (1986) (reciting Baker formulations and
declining Justice O’Connor’s implicit invitation to rethink
ALPERIN v. VATICAN BANK 6665
that approach). Subsequent decisions have elaborated on the
various criteria. In particular, the Vieth plurality’s observation
that the Baker tests “are probably listed in descending order
of both importance and certainty,” 124 S. Ct. at 1776, is borne
out by the disproportionate emphasis on the first two tests in
both Supreme Court and lower court cases. See, e.g., Powell
v. McCormack, 395 U.S. 486, 548-49 (1969) (dismissing five
Baker formulations as inapplicable in two paragraphs after an
extensive discussion of the first test); see also El-Shifa
Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1367
(Fed. Cir. 2004) (focusing on first Baker formulation in hold-
ing that the Constitution, “in its text and by its structure, com-
mits to the President the power to make extraterritorial enemy
property designations”); Made in the USA Found. v. United
States, 242 F.3d 1300, 1312-19 (11th Cir. 2001) (briefly
addressing “prudential considerations” after analyzing the
first and second Baker formulations at length in concluding
that the question of what constitutes a treaty is a political
question); In re African-American Slave Descendants Litig.,
304 F. Supp. 2d 1027, 1056-63 (N.D. Ill. 2004) (discussing
first and second Baker formulations extensively in determin-
ing that slave reparation claims were not justiciable). But see
United States v. Munoz-Flores, 495 U.S. 385, 390-93 (1990)
(briefly dismissing other Baker formulations after explaining
that mere judicial scrutiny of a congressional enactment does
not show a lack of respect for Congress under the fourth
Baker formulation). Similarly, the district court in this case
addressed only the first and second considerations and found
that both counseled in favor of dismissal.
Perhaps not surprisingly, our analysis also focuses on the
first two considerations because they are the most significant
in the face of the specific allegations of the Complaint. Before
we proceed to evaluate the Holocaust Survivors’ claims, it is
useful to take a short detour through the World War II Holo-
caust claims cases as they pertain to the political question
doctrine.
6666 ALPERIN v. VATICAN BANK
D. THE POLITICAL QUESTION DOCTRINE AND WORLD WAR
II-ERA CLAIMS
The late 1990s saw a flurry of legal activity over
Holocaust-era claims after years of quietude. See Michael J.
Bazyler, Nuremberg in America: Litigating the Holocaust in
United States Courts, 34 U. Rich. L. Rev. 1, 19 (2000) (“A
total of ten cases involving Holocaust-era claims were filed in
the United States between the end of World War II and Octo-
ber 1996, the start of the new era of Holocaust-claim litiga-
tion.”).7 The cases break down into several categories: finding
of justiciability, finding of no justiciability, and skirting the
political question doctrine or not reaching the doctrine.
The Eleventh Circuit’s recent decision involving claims
against banks falls into the first category. The court held that
claims against two German banks that profited from the prac-
tice of Aryanization during World War II were not political
questions. See Ungaro-Banages v. Dresdner Bank AG, 379
F.3d 1227, 1235-37 (11th Cir. 2004).
In contrast, the district court in this case relied heavily on
litigation in federal district courts in New Jersey in which the
courts determined that various Holocaust claims raised non-
justiciable political questions.8 See Burger-Fischer v. Degussa
7
In addition to Michael Bazyler’s comprehensive review of Holocaust-
era litigation, Burt Neuborne, counsel to various parties in Holocaust liti-
gation, provides a helpful overview of the path of these cases. See Burt
Neuborne, Preliminary Reflections on Aspects of Holocaust-era Litigation
in American Courts, 80 Wash. U. L.Q. 795 (2002).
8
The Holocaust Survivors argue that it was improper for the district
court to rely on these out-of-circuit district court cases. Although these
cases cannot be viewed as precedent, it certainly was not improper for the
district court to reference them and consider analogous principles. See
Hart v. Massanari, 266 F.3d 1155, 1169 (9th Cir. 2001) (acknowledging
practice of considering out-of-circuit cases when ruling on a novel issue
of law). The Holocaust Survivors further challenge the use of these cases
as improper in light of Deutsch. See 324 F.3d at 713 n.11. In Deutsch, we
did not, however, reject the New Jersey cases wholesale but rather criti-
cized the district court for invoking the political question doctrine when
all that was required was “the simple application of the requirements of
a treaty to which the United States is a party.” Id.
ALPERIN v. VATICAN BANK 6667
AG, 65 F. Supp. 2d 248 (D.N.J. 1999); Iwanowa v. Ford
Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999).9
Other courts fielding Holocaust-era claims have skirted the
political question doctrine. See, e.g., Garb v. Republic of
Poland, 72 Fed. Appx. 850, 855 n.1 (2d Cir. 2003), vacated
and remanded by 124 S. Ct. 2835 (2004) (cautioning in
remanding claims brought by Jews against defendant states
and their instrumentalities that the district court’s “necessary
factual inquiry should be conducted with appropriate attention
to separation-of-powers concerns, inasmuch as the conduct of
foreign relations is delegated to the political branches, and the
adjudication of claims that risk significant interference with
foreign relations policy may raise justiciability concerns”)
(citations omitted); Goldstein v. United States, No. 01-0005,
2003 U.S. Dist. LEXIS 19266 (D.D.C. Apr. 23, 2003) (mem-
orandum opinion) (failing to reach political question doctrine
because claims were barred by the doctrine of sovereign
immunity in suit by Hungarian Jews against the United States
for failure to take action to prevent the deaths of Jews during
World War II and for recovery of stolen assets); Bodner v.
Banque Paribas, 114 F. Supp. 2d 117, 129 n.9 (E.D.N.Y.
2000) (explaining in case alleging French banks had failed to
return assets seized during the Holocaust that the political
question doctrine was “not even raised by the defendants here
and [is] irrelevant to these facts in any event”).
Still other courts have not reached the issue because the
cases were settled prior to ruling on the defendants’ motions
to dismiss. See In re Austrian & German Bank Holocaust
Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) (overseeing settle-
9
Following the district courts’ dismissals of Burger-Fischer and Iwa-
nowa, the plaintiffs pursued expedited appeals to the Third Circuit Court
of Appeals. Neuborne, supra note 7, at 815. The appeals were adjourned
in light of the impending establishment of a foundation to handle claims
against German companies, and the appeals were “ultimately voluntarily
dismissed in May 2001 in connection with the establishment of the Ger-
man Foundation.” Id.
6668 ALPERIN v. VATICAN BANK
ment proceedings in case against Austrian banks); In re Holo-
caust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y.
2000) (overseeing settlement proceedings in Swiss Bank liti-
gation).
With these varied views as a backdrop, we turn to consider-
ation of the Holocaust Survivors’ claims.
II. DISCUSSION
On appeal, the Holocaust Survivors address the first, sec-
ond, and sixth Baker tests. The Vatican Bank maintains that
the Holocaust Survivors’ claims present political questions
under all of the Baker tests. Because any single test can be
dispositive, we address each in our discussion. Just as signifi-
cantly, while we agree with the district court that certain types
of claims arising out of World War II are properly left to the
political branches, we take a surgical approach rather than a
broad brush in benchmarking the Baker formulations against
the individual claims. It is incumbent upon us to examine
each of the claims with particularity.
The dissent would have the political question doctrine
remove from our courts “all matters that fall by their constitu-
tional DNA into this sphere [of conduct involving foreign
relations].” Dissent at 6705. This over-inclusive approach
threatens to sweep all cases touching foreign relations beyond
the purview of the courts—a practice warned against in
Baker. See 369 U.S. at 210-11 (“Much confusion results from
the capacity of the ‘political question’ label to obscure the
need for case-by-case inquiry.”). The Court’s emphasis in
Baker on “the necessity for discriminating inquiry into the
precise facts and posture of the particular case,” id. at 217, “is
not merely hortatory,” McMellon v. United States, 387 F.3d
329, 374 (4th Cir. 2004) (en banc) (Luttig, J., dissenting). We
therefore decline from reflexively invoking the doctrine
merely because the Holocaust Survivors’ claims implicate
ALPERIN v. VATICAN BANK 6669
foreign relations and instead proceed with a discriminating
inquiry.
We conclude that the claims for conversion, unjust enrich-
ment, restitution, and an accounting10 with respect to lost and
looted property are not committed to the political branches
(the “Property Claims”). Recovery for lost and looted prop-
erty, however, stands in stark contrast to the broad allegations
tied to the Vatican Bank’s alleged assistance to the war objec-
tives of the Ustasha, including the slave labor claims, which
essentially call on us to make a retroactive political judgment
as to the conduct of war (the “War Objectives Claims”). Such
judgment calls are, by nature, political questions. With this
bifurcation as a framework, we first address the Property
Claims.
A. PROPERTY CLAIMS
None of the Baker formulations are inextricable from the
Property Claims. Simply because a foreign bank is involved
and the case arises out of a “politically charged” context does
not transform the Property Claims into political questions. See
Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995) (holding
10
The Holocaust Survivors are asking the court to order the Vatican
Bank to provide the necessary information to conduct an accounting. This
request contrasts with cases in which plaintiffs have asked courts to
require the political branches to take action. See, e.g., Earth Island Inst.
v. Christopher, 6 F.3d 648, 653-54 (9th Cir. 1993) (denying request that
the court compel the Secretary of State to initiate negotiations with foreign
nations); see also Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir.
1992) (“Damage actions are particularly judicially manageable” whereas
“the framing of injunctive relief may require the courts to engage in the
type of operational decision-making . . . constitutionally committed to
other branches.”). It is an open question whether the Holocaust Survivors
will be able to gain access to the information needed for an accounting
without diplomatic intervention considering that “[a] full accounting of the
events of the Ustasha period . . . has to be found in the archives of other
nations and possibly the Vatican.” Ustasha Treasury Report, supra note 3,
at 154.
6670 ALPERIN v. VATICAN BANK
that political question doctrine did not bar adjudication of
claims brought under the ATS against a Bosnian-Serb leader
for committing genocide and other atrocities).
As these excerpts from the Complaint demonstrate, the
Property Claims consist of garden-variety legal and equitable
claims for the recovery of property:
• “Looted Assets” is defined in the Complaint as
including, inter alia, “cash, securities, silver,
gold, jewelry, businesses, art masterpieces,
equipment and intellectual property” that were
improperly taken by any person or entity acting
in furtherance of the Nazi or Ustasha regime.
• The second largest apparel factory in Yugoslavia
was confiscated from the family of plaintiff Fred
Zlatko Harris, including “50 advanced industrial
Singer sewing machines.” The family’s invest-
ment real estate, car, and motorcycle were also
confiscated by Ustasha forces.
• The “Ustasha and Germans” looted property
“valued by the Tito government in 1948 in excess
of $1,500,000 in prewar dollars” from the textile
manufacturing assets of plaintiff Allen Dolfi
Herskovich’s family.
• Plaintiff Desa Tomasevic Wakeman describes
how “money and other belongings including
gold” were taken from her mother and grand-
mother by Ustasha forces.
• The looted assets were collected from a wide
geographic area, with “[t]he Ustasha Treasury
contain[ing] plunder from Ukraine and assets
seized from the Ustasha victims in Yugoslavia.”
ALPERIN v. VATICAN BANK 6671
• The Complaint lists whether the Vatican Bank
“improperly retained or converted looted assets”
belonging to the Holocaust Survivors as one of
the common questions of fact for the proposed
class.
• The Vatican Bank was unjustly enriched by “re-
ceiv[ing] stolen property given to [it] by mem-
bers of the Ustasha Regime.” The Holocaust
Survivors further seek restitution for their “goods
and property” that the Vatican Bank “wrongfully
used and profited from.”
• The Holocaust Survivors request that the court
direct the Vatican Bank “to return all identifiable
property looted from Plaintiffs and received by
Defendants” and pay “the value [plus interest] of
any identified property deposited by, or looted
from, Plaintiffs and received by Defendants.”
1. TEXTUALLY DEMONSTRABLE COMMITMENT
[3] Beginning logically with the first Baker test, we divine
no explicit constitutional reference that is applicable to this
case. Cf. Gilligan v. Morgan, 413 U.S. 1, 5-11 (1973) (noting
the Constitution’s explicit vesting of power in Congress to
“organiz[e] . . . the Militia” in holding that a suit seeking to
restrain the Governor’s use of National Guard troops pre-
sented political questions). More often, however, “there are
few, if any, explicit and unequivocal instances in the Consti-
tution of this sort of textual commitment. . . . The courts
therefore are usually left to infer the presence of a political
question from the text and structure of the Constitution.”
Nixon, 506 U.S. at 240-41 (White, J., concurring). In Nixon,
the Court undertook an expansive review of the history of the
Impeachment Trial Clause in concluding that the language
and structure of the Constitution textually commits impeach-
ment determinations to the Senate. Id. at 233-36; see also
6672 ALPERIN v. VATICAN BANK
Powell, 395 U.S. at 520-48 (1969) (engaging in a similarly
extensive review of the text and history behind the expulsion
power in Article I, Section 5, to discern whether it grants
Congress judicially unreviewable power to set qualifications
of membership).
Here we are not faced with analyzing a specific clause of
the Constitution but rather proceed from the understanding
that the management of foreign affairs predominantly falls
within the sphere of the political branches and the courts con-
sistently defer to those branches. See, e.g., Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 422 n.12 (2003) (“[I]n the field of
foreign policy, the President has the ‘lead role.’ ”) (quoting
First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S.
759, 767 (1972)); Oetjen, 246 U.S. at 302 (emphasizing that
the conduct of foreign relations is committed to the political
branches and is not subject to judicial inquiry); Mingtai Fire
& Marine Ins. Co. v. United Parcel Service, 177 F.3d 1142,
1144 (9th Cir. 1999) (quoting United States v. Pink, 315 U.S.
203, 222-23 (1942)) (“[T]he conduct of foreign relations is
committed by the Constitution to the political departments of
the Federal Government; [and] . . . the propriety of the exer-
cise of that power is not open to judicial review.”). Notwith-
standing this general commitment of foreign relations to the
political branches, in Baker, the Court cautioned that whether
a court should defer to the political branches is a case-by-case
inquiry because “it is error to suppose that every case or con-
troversy which touches foreign relations lies beyond judicial
cognizance.” 369 U.S. at 211.
Our inquiry is further based on the premise that, unlike
some World War II-era claims, the Holocaust Survivors’
claims are not expressly barred by treaty.11 U.S. Const. art. II,
11
The dissent suggests that the Treaty of Peace with Italy, Feb. 10, 1947,
art. 75, 61 Stat. 1245, 1400-01, controls this case. See Dissent at 6709-10.
This emphasis is misplaced. The treaty was concluded with Italy, not the
Vatican. See Vatican Background Note, supra note 2 (“Lateran Pacts con-
ALPERIN v. VATICAN BANK 6673
§ 2, cl. 1 (granting the President the power to make treaties);
see, e.g., In re World War II Era Japanese Forced Labor
Litig., 114 F. Supp. 2d 939, 945 (N.D. Cal. 2000), aff’d,
Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003), (deter-
mining that the 1951 Peace Treaty with Japan essentially pre-
cludes all claims arising out of actions taken by Japan and its
nationals during World War II).
Nor are the Holocaust Survivors’ claims against the Vati-
can Bank the subject of an executive agreement. See Gara-
mendi, 539 U.S. at 415-16 (“Historically, wartime claims
against even nominally private entities have become issues in
international diplomacy, and three of the postwar settlements
dealing with reparations implicating private parties were
made by the Executive alone.”); Dames & Moore v. Regan,
453 U.S. 654, 680 (1981) (“Crucial to our decision today is
the conclusion that Congress has implicitly approved the prac-
tice of claim settlement by executive agreement.”).
In other circumstances, the Executive Branch has taken for-
mal steps to intervene in certain claims arising out of the
Holocaust. Most notably, the United States and Germany
signed an executive agreement in July 2000 in which Ger-
many agreed to enact legislation establishing a foundation
(the “Foundation”) to oversee the compensation of those
“who suffered at the hands of German companies during the
National Socialist era and World War II.” Agreement Con-
cerning the Foundation “Remembrance, Responsibility and
firming independence and sovereignty of The Holy See signed with Italy
on February 11, 1929.”). Further, as previously noted, because this case
comes to us at the motion to dismiss stage, we must accept the Com-
plaint’s demarcation between the Vatican Bank, which is named as a
defendant, and the Vatican, which is not named as a defendant. To the
extent further discovery resolves the legal and political status of the Vati-
can bank vis-à-vis the Vatican and/or Italy, the treaty could have some
bearing. At this juncture, however, it is not applicable to the claims as
plead.
6674 ALPERIN v. VATICAN BANK
the Future,” July 17, 2000, U.S.-F.R.G., 39 I.L.M. 1298, 1298
(“Foundation Agreement”);12 see also Garamendi, 539 U.S. at
405-08 (describing the Foundation Agreement and similar
agreements concluded with Austria and France).
The Holocaust Survivors’ case is distinguishable from
those involving the Foundation in that there is no analogous
executive agreement covering claims to the Ustasha treasury.
Despite the dearth of formalized accords, the Vatican Bank
counters—and the district court agreed—that the absence of
an agreement covering the Holocaust Survivors’ claims is not
dispositive of the issue. We agree. The question then comes
back to whether the Property Claims are the type of claims
committed to the political branches for resolution.
[4] We do not have much guidance in evaluating the nature
of the non-treaty, non-executive agreement claims. At bottom,
the Property Claims simply seek restitution for looted assets
belonging to purported class members. Reparation for steal-
ing, even during wartime, is not a claim that finds textual
commitment in the Constitution.
The Holocaust Survivors do not, for example, seek back
rent due a New York landlord from a country whose diplo-
12
Courts have been inconsistent as to whether the Foundation Agree-
ment precludes private litigation. Compare Ungaro-Banages, 379 F.3d at
1235 (explaining in holding that the political question doctrine did not act
as a bar that “the plain text of the Foundation Agreement anticipates that
federal courts will consider claims against German corporations”) with In
re Nazi Era Cases Against German Defendants Litig., 334 F. Supp. 2d
690, 696-97 (D.N.J. 2004) (holding claim against German company aris-
ing out of so-called Nazi “medical experiments” was nonjusticiable on the
basis of “[t]he history of foreign policy commitments devoted to the reso-
lution of Holocaust-era claims, coupled with the relatively recent creation
of the Foundation”); see also Neuborne, supra note 7, at 824 n.101
(“[The] precatory Statement of Interest [called for in the Foundation
Agreement] has no preclusive effect. It leaves to the discretion of an Arti-
cle III court whether additional Holocaust-era litigation should be enter-
tained.”).
ALPERIN v. VATICAN BANK 6675
mats were expelled from the United States, 767 Third Ave.
Assocs. v. Consulate Gen. of the Socialist Fed. Republic of
Yugoslavia, 218 F.3d 152 (2d Cir. 2000), or request an asset
freeze based on a declaration that the Communist Vietnam
government is an enemy of the United States, Can v. United
States, 14 F.3d 160 (2d Cir. 1994), or challenge the executive
power under the Hostage Act, Smith v. Reagan, 844 F.2d 195(4th Cir. 1988), or raise a claim contingent on the safety and
effectiveness of a military exercise, Aktepe v. United States,
105 F.3d 1400 (11th Cir. 1997), or present claims arising out
of the CIA’s involvement in the anti-Allende coup in Chile,
Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), or
question the recognition of a foreign government, Antolok,
873 F.2d at 379-85.
Instead, the claims here bear more similarities to the prop-
erty claims considered by the Supreme Court last year in Alt-
mann. See 124 S. Ct. at 2243. Altmann brought suit against
Austria and its national art gallery seeking to recover six
Klimt paintings that were allegedly wrongfully obtained by
the gallery after Nazi forces seized them during World War
II. Id. The Court granted certiorari on the limited question of
whether the FSIA applies retroactively, id., and did not
address the political question doctrine. Nonetheless, that the
Court allowed the case to proceed underscores that courts
have a place in deciding Holocaust-era claims concerning
looted assets. Cf. Rosner v. United States, 231 F. Supp. 2d
1202, 1204 (S.D. Fla. 2002) (denying motion to dismiss, in
part, in case alleging that the United States seized valuables
belonging to Hungarian Jews after World War II).
Significantly, the United States itself brought an action in
federal district court in New York seeking civil forfeiture of
a painting that the United States claimed was about to be
exported in violation of the National Stolen Property Act. See
United States v. Portrait of Wally, No. 99 Civ. 9940, 2002
U.S. Dist. LEXIS 6445 (S.D.N.Y. Apr. 12, 2002). “Wally,”
which was on loan from a museum in Austria, was taken from
6676 ALPERIN v. VATICAN BANK
victims of the Holocaust during World War II. Id. at *6. The
court rejected Austria’s argument, as amicus curiae, that the
court should not hear the case because of the political ques-
tion doctrine. Id. at *38 (determining that none of the six
Baker formulations was present). Although the claim was in
rem in nature, rather than for damages, the consideration
under Baker’s first test is the same.
[5] As with Portrait of Wally and Altmann, the Property
Claims ultimately boil down to whether the Vatican Bank is
wrongfully holding assets. Deciding this sort of controversy
is exactly what courts do. The presence of a foreign defendant
with some relationship to a foreign government and claims
stemming from World War II atrocities tinge this case with
political overtones, but the underlying property issues are not
“political questions” that are constitutionally committed to the
political branches.
The dissent’s rhetoric aside, the question here is whether
the suit should be stopped dead because of the political ques-
tion doctrine. If Judge Trott contests the broad jurisdiction of
U.S. courts to hear suits involving foreigners, or the scope of
the FSIA—issues that are not even presented at this stage of
the proceeding—then his recourse is with Congress, not a
quarrel with the majority. Our holding does not, as the dissent
contends, “extend[ ] the concept of judicial authority into
unknown territory and mistakenly exercise[ ] power and com-
petence that plainly belongs to the President and to Con-
gress.” Dissent at 6715-16. Nor does it raise the spectre of a
“World Court . . . with breathtaking and limitless jurisdiction
to entertain the World’s failures.” Dissent at 6712. Rather, we
hold true to a fundamental principle behind our separation of
powers design, namely that “[i]t is emphatically the province
and duty of the judicial department to say what the law is.”
Marbury, 5 U.S. (1 Cranch) at 177. Because the Property
Claims do not raise questions “entrusted to one of the political
branches or involv[ing] no judicially enforceable rights,”
ALPERIN v. VATICAN BANK 6677
Vieth, 124 S. Ct. at 1776, we fulfill our duty to say what the
law is.
2. JUDICIALLY DISCOVERABLE AND MANAGEABLE
STANDARDS
The Supreme Court discussed the second Baker test at
length last term in Vieth. The plurality explained that political
gerrymandering claims are nonjusticiable because no judi-
cially discernible and manageable standards for adjudicating
such claims exist: “One of the most obvious limitations
imposed by that requirement is that judicial action must be
governed by standard, by rule.” 124 S. Ct. at 1777. In
response to Justice Kennedy’s concern that the plurality’s
decision was premature,13 Justice Scalia replied, “But it is the
function of the courts to provide relief, not hope.” Id. at 1791.
The crux of this inquiry is thus not whether the case is unman-
ageable in the sense of being large, complicated, or otherwise
difficult to tackle from a logistical standpoint. Rather, courts
must ask whether they have the legal tools to reach a ruling
that is “principled, rational, and based upon reasoned distinc-
tions.” Id. at 1777.
In conducting this inquiry, the refusal of five Justices in
Vieth to hold that no manageable standard existed despite
what the plurality termed “[e]ighteen years of essentially
13
Abiding by the rule that when “no single rationale explaining the
result enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds,” Marks v. United States, 430 U.S.
188, 193 (1977) (internal quotation marks omitted), we treat the position
enunciated in Justice Kennedy’s concurrence as controlling. Although
agreeing with the majority that the Court should refrain from intervention
in the case at bar, Justice Kennedy declined to join the plurality in holding
that all political gerrymandering claims are nonjusticiable. Vieth, 124
S. Ct. at 1793 (Kennedy, J., concurring) (“I would not foreclose all possi-
bility of judicial relief if some limited and precise rationale were found to
correct an established violation of the Constitution in some redistricting
cases.”).
6678 ALPERIN v. VATICAN BANK
pointless litigation,” id. at 1792, counsels against holding a
case nonjusticiable under the second Baker test without first
undertaking an exhaustive search for applicable standards. See
id. at 1795-96 (Kennedy, J., concurring) (calling for “err[ing]
on the side of caution” in refraining from concluding that no
manageable standards will emerge in the future). As Justice
Ginsburg optimistically wrote, although “courts have been
trying to devise practical criteria for political gerrymandering
for nearly 20 years” without reaching a workable solution, “I
do not accept it as sound counsel for despair.” Id. at 1815-16
(Ginsburg, J., dissenting).
The district court determined that the second Baker test
required dismissal, explaining that the Holocaust Survivors’
case presents “intractable problems,” including the task of
identifying and notifying potential class members, the “multi-
tude of sources” from which relevant materials would be
gathered, and the likelihood that the parties would be able to
gather all of the “pertinent data.” It is not surprising that the
district court zeroed in on “manageable standards” for decid-
ing the case. The Baker language is not crystal clear in this
regard and, understandably, other courts have similarly
focused on case management. See, e.g., Iwanowa, 67
F. Supp. 2d at 488-89 (“[T]he relevant materials come from a
multitude of sources, which . . . are voluminous and poten-
tially unmanageable for individual courts to handle.”)
Lest there be any doubt, Vieth refines and redirects the
inquiry. In light of the Court’s clarification in Vieth, we take
a slightly different approach to interpreting the phrase “judi-
cially discoverable and manageable standards.” Instead of
focusing on the logistical obstacles, we ask whether the courts
are capable of granting relief in a reasoned fashion or, on the
other hand, whether allowing the Property Claims to go for-
ward would merely provide “hope” without a substantive
legal basis for a ruling. See Vieth, 124 S. Ct. at 1791. We con-
clude that there are sound bases for providing relief.
ALPERIN v. VATICAN BANK 6679
The Holocaust Survivors’ most straightforward claims
involve identifiable personal property for which federal stat-
utes, common law, state law, and well-established case law
provide concrete legal bases for courts to reach a reasoned
decision. See, e.g., 28 U.S.C. § 1605(a)(3) (providing an
expropriation exception to sovereign immunity in certain
cases involving “rights in property taken in violation of inter-
national law”); Altmann, 124 S. Ct. at 2245 (asserting juris-
diction under the FSIA’s expropriation exception for return of
artwork taken by Nazi forces); Gruber v. Pac. States Sav. &
Loan Co., 88 P.2d 137, 139 (Cal. 1939) (“It is settled that
conversion is any act of dominion wrongfully exerted over
another’s personal property in denial of or inconsistent with
his rights therein.”).
[6] Altmann involved six paintings that were linked to a
single plaintiff through an imperfect, but at least fairly well
documented, chain of ownership. More difficult is tracking
gold, silver, and other fungible assets, like money, especially
those without bank account records or other reliable docu-
mentation. We are well aware that the Holocaust Survivors
have a difficult task ahead of them in establishing the path
that the looted funds followed. See Ustasha Treasury Report,
supra note 3, at 154-55 (“The Croatian delegation [at the Lon-
don Conference on Nazi Gold held in December 1997] stated
that there were 22 lists specifying the gold [of the Ustasha],
but the lists have not been found, and further documentation
regarding the gold was assumed to be with the National Bank
of Yugoslavia.”); id. at 155 (“There is some evidence that at
least part of the Croat Foreign Ministry archives was sent to
the Vatican at the end of the War.”). These looming evidenti-
ary and proof obstacles do not change the fact that, at heart,
the Holocaust Survivors seek compensation for stolen prop-
erty, a claim that is very familiar in our courts. Cf. Klinghoffer
v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir. 1991) (con-
cluding that the second Baker test did not act as a bar in case
against the Palestine Liberation Organization “because the
6680 ALPERIN v. VATICAN BANK
common law of tort provides clear and well-settled rules on
which the district court can easily rely”).
It would be premature for us to foreclose the Holocaust
Survivors’ claims because of such impending hurdles: The
second Baker prong is not a proxy for the class certification
analysis. See Fed. R. Civ. P. 23. As with every prospective
class action, this one must pass through the Rule 23 filter, a
process that could preclude the class or perhaps result in the
reshaping of the class or in some other modification of the
dispute. Concerns about class composition and size, as well as
questions about access to relevant documents, should be left
to Rule 23 proceedings and the discovery process.
Accordingly, the district court was misplaced in its reliance
on the somewhat anachronistic Kelberine v. Societe Interna-
tionale, 363 F.2d 989 (D.C. Cir. 1966), to support the view
that the Holocaust Survivors’ claims present “intractable
problems” that defy manageable judicial resolution. In Kel-
berine, the District of Columbia Circuit affirmed the dismissal
of World War II-era claims against a Swiss holding corpora-
tion “for failure to state a claim upon which relief can be
granted.” 363 F.2d at 995. Without mentioning the political
question doctrine, the court explained, “The procedure sought
—adjudication of some two hundred thousand claims for mul-
tifarious damages inflicted twenty to thirty years ago in a
European area by a government then in power—is too com-
plicated, too costly, to justify undertaking by a court without
legislative provision of the means wherewith to proceed.” Id.Most significantly, Kelberine does not address the second
Baker test. Nor can Kelberine serve as a guide to logistical
infringement.
Since Kelberine was decided in 1966, the class action land-
scape has changed dramatically. Coincidentally, this same
year marked the emergence of “modern class action practice,”
Ortiz v. Fibreboard Corp., 527 U.S. 815, 833 (1999), with the
“innovative 1966 revision” to Rule 23, Amchem Prods., Inc.
ALPERIN v. VATICAN BANK 6681
v. Windsor, 521 U.S. 591, 613 (1997). Kelberine was also
decided prior to creation of the Manual for Complex Litiga-
tion which, first published in 1969, is now in its fourth incar-
nation. See Fed. Judicial Ctr., Manual For Complex
Litigation, Fourth (2004). This manual offers “an array of liti-
gation management techniques and procedures,” and recog-
nizes that due to the presence of much “sparsely charted
terrain[,] . . . judges are encouraged to be innovative and cre-
ative to meet the needs of their cases.” Id. at 2-3.
While acknowledging the innovative and creative means
that the judiciary has employed to tackle class actions, we are
well aware that this is a behemoth of a case. Even so, courts
have repeatedly risen to the challenge of handling cases
involving international elements as well as massive, complex
class actions. See generally Kenneth R. Feinberg, Reporting
From the Front Line — One Mediator’s Experience With
Mass Torts, 31 Loy. L.A. L. Rev. 359, 371 (1998) (discussing
“some of the practical problems which arise in attempting to
resolve [mass tort] litigation and the pragmatic solutions
offered to deal with these problems”). Courts also have fash-
ioned innovative solutions to surmount similar obstacles in
the Holocaust-claims context. See, e.g., D’Amato v. Deutsche
Bank, 236 F.3d 78, 82 (2d Cir. 2001) (explaining in class
action against German and Austrian banks that “the notice
campaign also utilized newspaper advertisements, direct mail-
ing to organizations throughout the world, and a world wide
web home page”); In re Holocaust Victim Assets Litig., 105
F. Supp. 2d at 147 (noting in context of reviewing settlement
agreement that “some 550,000 Initial Questionnaires had been
received from class members worldwide”). Our conclusion
that this case is judicially “manageable” does not diminish our
understanding that burdening a district court with a case of
this magnitude and complexity may prove to present a Sisy-
phean task: Just when the court appears to be making progress
towards reaching legal peace, the rock rolls back down and
the court must tackle the next issue.
6682 ALPERIN v. VATICAN BANK
[7] The Holocaust Survivors unrealistically “anticipate that
there will be no difficulty in the management of this litiga-
tion.” Of course there will be litigation management difficul-
ties, but that does not mean that courts “lack . . . judicially
discoverable and manageable standards” for resolving the
Property Claims. Baker, 369 U.S. at 217. Concerns about
class certification, discovery, and allocation, among other
issues, are matters to be resolved at a later time. Today we
conclude only that a legal framework exists by which courts
can evaluate these claims in a reasoned manner.
ALPERIN v. VATICAN BANK 6683
Volume 2 of 2
ALPERIN v. VATICAN BANK 6687
3. INITIAL POLICY DETERMINATION
[8] Nor do we think that adjudicating the Property Claims
will be impossible “without [making] an initial policy deter-
mination of a kind clearly for nonjudicial discretion.” Baker,
369 U.S. at 217. The Property Claims focus on the extent to
which the Holocaust Survivors were wrongfully deprived of
personal property and the value of such property that was
transferred to the Vatican Bank. Adjudicating these discrete
issues will not require the court to make pronouncements on
foreign policy or otherwise trigger the third Baker test. Cf.
Aktepe, 105 F.3d at 1404 (wrongful death claims arising out
of a NATO training exercise raised nonjusticiable political
questions in part because a decision would require “a policy
determination regarding the necessity of simulating actual
battle conditions”).
4. LACK OF RESPECT FOR COORDINATE BRANCHES
The fourth Baker test requires us to consider whether it
would be impossible for the courts to resolve the Property
Claims without expressing a lack of respect for the political
branches. See Baker, 369 U.S. at 217. As evidenced by the
Vatican’s protest to the State Department, this case implicates
foreign relations. Whether the court’s involvement would
inevitably express a lack of respect for the Executive
Branch’s handling of U.S.-Vatican relations,14 as well as rela-
tions with other foreign states, is a separate matter.15 We con-
clude that judicial handling of the Property Claims will not
run afoul of this fourth test.
14
The United States and the Vatican established diplomatic relations on
January 10, 1984. Vatican Background Note, supra note 2.
15
In addition to relations with the Vatican, we recognize that, theoreti-
cally, this case could bear on the United States’ relationship with Croatia,
as well as other countries. But this theoretical possibility—even if com-
mon sense—does not dictate the confines of a political question.
6688 ALPERIN v. VATICAN BANK
More than four years have passed since the Vatican sent its
protest to the State Department. The Holocaust Survivors rep-
resented to the court that the State Department has been
apprised of this appeal but has said that its decision not to
intervene is not reflective of its view on the merits of this
case.
[9] Had the State Department expressed a view, that fact
would certainly weigh in evaluating this fourth Baker formu-
lation. In Altmann, the Court explained that “should the State
Department choose to express its opinion on the implications
of exercising jurisdiction over particular petitioners in con-
nection with their alleged conduct, that opinion might well be
entitled to deference as the considered judgment of the Execu-
tive on a particular question of foreign policy.” 124 S. Ct. at
2255 (footnote omitted); see also 28 U.S.C. § 517 (“The
Solicitor General, or any officer of the Department of Justice,
may be sent by the Attorney General to any State or district
in the United States to attend to the interests of the United
States in a suit pending in a court of the United States . . . .”).
It is unclear, however, how courts should construe executive
silence. We are not mind readers. And, thus, we cannot dis-
cern whether the State Department’s decision not to intervene
is an implicit endorsement, an objection, or simple indiffer-
ence. At best, this silence is a neutral factor.
A few weeks after Altmann was decided, the Supreme
Court considered “a policy of case-specific deference to the
political branches” as a possible limitation on the determina-
tion whether an international norm is sufficiently definite to
support a cause of action. Sosa, 124 S. Ct. at 2766 n.21. The
Court saw no need to apply this policy in Sosa. Nonetheless,
the Court pointed to “several class actions” pending in federal
district court seeking damages from corporations in connec-
tion with South Africa’s former apartheid regime. Id. (citing
In re South African Apartheid Litig., 238 F. Supp. 2d 1379(J.P.M.L. 2002) (granting a motion to transfer the cases to the
Southern District of New York)). In the South Africa cases,
ALPERIN v. VATICAN BANK 6689
the State Department filed a statement in support of South
Africa’s position that the cases interfered with the policy
embodied by its Truth and Reconciliation Commission. 124
S. Ct. at 2766 n.21. The Court concluded, “In such cases,
there is a strong argument that federal courts should give seri-
ous weight to the Executive Branch’s view of the case’s
impact on foreign policy.” Id.
Such case-specific intervention is not uncommon in cases
involving foreign affairs. See Sarei v. Rio Tinto PLC, 221
F. Supp. 2d 1116, 1179-80 (C.D. Cal 2002) (listing numerous
examples where the Executive Branch submitted its opinion
in cases involving foreign affairs). In the Holocaust-era
claims context, the United States agreed as part of the Foun-
dation Agreement that whenever a German company was
sued in a U.S. court over a Holocaust-era claim, the U.S. Gov-
ernment would submit a statement that foreign policy interests
recommend recognition of the Foundation as the exclusive
forum for such claims and “that U.S. policy interests favor
dismissal on any valid legal ground.” Foundation Agreement,
39 I.L.M. at 1304. The United States stopped short, however,
of expressly precluding all claims. See Garamendi, 539 U.S.
at 436 (Ginsburg, J., dissenting) (“The [Foundation] agree-
ment makes clear, however, that ‘the United States does not
suggest that its policy interests concerning the Foundation in
themselves provide an independent legal basis for dismiss-
al.’ ”) (quoting Foundation Agreement, 39 I.L.M. at 1304).
Courts have varied in their interpretation of the amount of
deference these statements merit. Compare Ungaro-Benages,
379 F.3d at 1236 n.12 (statement of interest filed by U.S.
Government under the Foundation Agreement is “entitled to
deference, [but] does not make the litigation non-justiciable”)
with Frumkin v. JA Jones, Inc. (In re Nazi Era Cases Against
German Defendants Litig.), 129 F. Supp. 2d 370, 388-89
(D.N.J. 2001) (“If [the statement of interest filed by U.S.
Government under the Foundation Agreement] does not
clearly demonstrate that the claims against German Industry
presently before the Court constitute political questions best
6690 ALPERIN v. VATICAN BANK
left to the political branches, it is unclear to the Court what
would.”). Here, we are not even faced with evaluating the
State Department’s position because the Department has
issued no statement in this case.
[10] Nor does allowing the Holocaust Survivors’ claims to
proceed mean that the political branches will be shut out from
having any input as the case develops. As a State Department
Deputy Legal Adviser explained: “Whether the U.S. Govern-
ment agrees to facilitate the resolution of [future Holocaust-
era disputes that are between private parties], will be, I think,
a case-by-case decision, based on a judgement of the United
States government interests involved in the circumstances
presented.” Ronald J. Bettauer, The Role of the United States
Government In Recent Holocaust Claims Resolution, Keynote
Address at the Stefan A. Riesenfeld Symposium 2001 (Mar.
8-9, 2001), in 20 Berkeley J. Int’l L. 1, 10 (2002). Such gov-
ernment involvement is not limited to a specified period dur-
ing the judicial process, such as the motion to dismiss stage.
Cf. Kadic, 70 F.3d at 250 (describing statement of interest
filed by the government after oral argument on appeal).
Accordingly, going forward, we respect the political
branches’ right to weigh in and to play a role in the resolution
of the Holocaust Survivors’ claims. See generally Neuborne,
supra note 7, at 796 (analogizing process of resolving
Holocaust-era claims to a “three-legged stool” made up of
class action litigation, diplomacy, and community involve-
ment). Given the Executive Branch’s continuing silence on
the Holocaust Survivors’ claims, however, we follow Sosa’s
lead that at this time “we need not apply here . . . a policy of
case-specific deference to the political branches.” 124 S. Ct.
at 2766 n.21.
This case will proceed with foreign relations considerations
as a backdrop, and the district court should and “can consider
the nation’s foreign policy interests and international comity
concerns in [its] decisions.” Ungaro-Banages, 379 F.3d at
1237; see also Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 65
ALPERIN v. VATICAN BANK 6691
(D.D.C. 2004) (refusing to dismiss case but commenting that
the court “will carefully construct the future course of this
proceeding” bearing “concerns founded in the principles of
the political question, separation of powers, and act of state
doctrines firmly in mind”). Despite these delicate consider-
ations, the district court is fully capable of resolving the Prop-
erty Claims without expressing a lack of respect for the
political branches.
5. ADHERENCE TO A POLICY DECISION
[11] We see no concern that judicial handling of the Prop-
erty Claims will involve “an unusual need for unquestioning
adherence to a political decision already made.” Baker, 369
U.S. at 217; cf. Klinghoffer, 937 F.2d at 50 (concluding that
the fifth Baker test did not bar adjudication “because no prior
political decisions are questioned—or even implicated—by
the matter before us”). Indeed, this case is before us not
because the Holocaust Survivors disagree with a political
decision made regarding their claims, but rather because there
simply has been no decision. See Northrop Corp. v. McDon-
nell Douglas Corp., 705 F.2d 1030, 1047 (9th Cir. 1983)
(adjudicating case would not require the court to “challenge
the wisdom or legality of any governmental act or decision”).
Because of the lack of a policy decision on point, we do not
reach the question posed by the fifth Baker test whether there
is an “unusual need for unquestioning adherence” thereto.
Baker, 369 U.S. at 217.
6. MULTIFARIOUS PRONOUNCEMENTS
[12] The only question remaining is whether adjudicating
the Property Claims would “cause the potentiality of embar-
rassment from multifarious pronouncements by various
departments on one question.” Baker, 369 U.S. at 217; see
also Japan Whaling Ass’n., 478 U.S. at 230 (rejecting argu-
ment that the Court should defer adjudication on the basis of
the sixth Baker test). On the contrary, this case is marked by
6692 ALPERIN v. VATICAN BANK
the absence of “pronouncements” by the political branches
regarding the resolution of claims to the Ustasha treasury.
We reject the Vatican Bank’s argument that despite this
vacuum, any adjudication of the Holocaust Survivors’ claims
would cause potential embarrassment because it would be
inconsistent with the political branches’ stated intent to
resolve claims arising out of World War II by way of inter-
governmental negotiations and diplomacy. See Garamendi,
539 U.S. at 421 (explaining that the “consistent Presidential
foreign policy has been to encourage European governments
and companies to volunteer settlement funds in preference to
litigation or coercive sanctions”).
[13] We are mindful of stepping on the toes of the political
branches, but we disagree that any adjudication of the claims
would implicate this final test. As discussed with regard to the
War Objectives Claims, the district court should refrain from
hearing those claims that require passing judgment on foreign
policy decisions. On the other hand, fulfilling our
constitutionally-mandated role to hear controversies properly
before us does not threaten to cause embarrassment or multi-
ple pronouncements. Cf. Johnson v. Collins Entm’t Co., 199
F.3d 710, 729 (4th Cir. 1999) (Luttig, J., concurring in the
judgment) (“If the Congress sees fit to provide citizens with
a particular cause of action, then we as federal courts should
entertain that action—and unbegrudgingly.”).
In the landscape before us, this lawsuit is the only game in
town with respect to claimed looting and profiteering by the
Vatican Bank. No ongoing government negotiations, agree-
ments, or settlements are on the horizon. The outside chance
that the Executive Branch will issue a statement in the future
that has the “potentiality of embarrassment” when viewed
against our decision today does not justify foreclosing the
Holocaust Survivors’ claims, especially when “[t]he age and
health of many of the class members also presses for a prompt
ALPERIN v. VATICAN BANK 6693
resolution.” In re Holocaust Victim Assets Litig., 105
F. Supp. 2d at 148.
[14] In sum, none of the Baker formulations is “inextrica-
ble” from the Property Claims. See Baker, 369 U.S. at 217.
The Holocaust Survivors have presented a justiciable controver-
sy.16
B. WAR OBJECTIVES CLAIMS
In contrast to the Property Claims, the Holocaust Survi-
vors’ allegations that “[t]he actions and conduct of Defen-
dants, in addition to being profitable, actively assisted the war
objectives of the Ustasha Regime” strike at the heart of the
Ustasha’s wartime conduct. The Holocaust Survivors catalog
a litany of claimed international law violations:
• “Defendants knowingly facilitated and aided and
abetted the activities of war criminals . . . .
Defendants created a ‘ratline’ or ‘pipeline’ to
help the war criminals flee from prosecution.”
• “Defendants . . . by assisting the Nazi backed
Ustasha Regime in preserving their Treasury for
the purpose of continuing a Government in Exile
. . . and evading justice for genocidal war
crimes[,] . . . committed war crimes, crimes
against peace and crimes against humanity . . . .”
• “The [Vatican Bank] abused its position as the
16
Despite the dissent’s protest that “[t]his is not our ‘game,’ period,”
Dissent at 6705, the Constitution does not relegate us to the sidelines. We
are a player in adjudicating claims, and a crucial one at that. Abdicating
that role and reflexively tossing the ball into the political branches’ court
without the requisite analysis of the individual claims would be tanta-
mount to shirking our “obligation[ ] to decide cases and controversies
properly presented to [us].” W.S. Kirkpatrick & Co., 493 U.S. at 409.
6694 ALPERIN v. VATICAN BANK
Papal bank of Vatican City by a clear pattern of
violation of diplomatic norms . . . .”
• “Serbs, Jews, and the Roma were slaughtered in
their villages after unspeakable tortures or burned
alive in their churches. . . . Many were used as
slave laborers. The remaining people were taken
to concentration camps where the majority per-
ished.”
• “Jasenovac Concentration Camp complex . . .
was the home of indescribable brutality . . . . Not
only were inmates butchered but slave and forced
labor was performed for the benefit of the
Ustasha regime.”
These claims, which we have denominated as the “War
Objectives Claims,” present a nonjusticiable political ques-
tion.
[15] It is axiomatic that the Constitution vests the power to
wage war in the President as Commander in Chief, U.S.
Const. art. II, § 2, cl. 1, and the ability to “seize and subject
to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law
of war” is “an important incident to [this power].” Ex parte
Quirin, 317 U.S. 1, 28-29 (1942); Doe v. Bush, 323 F.3d 133,
137 (1st Cir. 2003) (“The Constitution reserves the war pow-
ers to the legislative and executive branches.”). A plurality of
the Supreme Court recently reaffirmed that the judicial branch
“accord[s] the greatest respect and consideration to the judg-
ments of military authorities in matters relating to the actual
prosecution of a war, and recognize[s] that the scope of that
discretion necessarily is wide.” Hamdi v. Rumsfeld, 124 S. Ct.
2633, 2649 (2004).17 Wartime context aside, as discussed pre-
17
We stress, however, that courts are not powerless to review the politi-
cal branches’ actions during wartime for, as the plurality cautioned in
ALPERIN v. VATICAN BANK 6695
viously, “cases interpreting the broad textual grants of author-
ity to the President and Congress in the areas of foreign
affairs leave only a narrowly circumscribed role for the Judi-
ciary.” Made in the USA Found., 242 F.3d at 1313.
Following World War II, the Executive Branch exercised
its authority in a number of ways, including through the
Nuremberg Trials, which included prosecution for “murder,
extermination, enslavement, [and] deportation” among other
crimes against humanity, war crimes, and crimes against
peace. Charter of the International Military Tribunal, Aug. 8,
1945, 59 Stat. 1546, 1547, 82 U.N.T.S. 279 (“Nuremberg
Charter”). See generally Steven Fogelson, Note, The Nurem-
berg Legacy: An Unfulfilled Promise, 63 S. Cal. L. Rev. 833(1990). Simply because the Nuremberg Charter does not
expressly preclude national courts from trying war criminals,
Nuremberg Charter, supra, 59 Stat. at 1545, does not mean
that it is our place to step in a half-century later and condemn
the Vatican Bank and related parties for “participat[ing] in the
activities of the Ustasha Regime in furtherance of the com-
mission of war crimes, crimes against humanity, [and] crimes
against peace.” We are not a war crimes tribunal. To act as
such would require us to “intrud[e] unduly on certain policy
choices and value judgments that are constitutionally commit-
ted to [the political branches,]” Koohi, 976 F.2d at 1331, for
we do not and cannot know why the Allies made the policy
choice not to prosecute the Ustasha and the Vatican Bank. See
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386
(2000) (acknowledging that “the ‘nuances’ of ‘the foreign
policy of the United States . . . are much more the province
of the Executive Branch and Congress than of this Court’ ”)
(quoting Container Corp. of Am. v. Franchise Tax Bd., 463
U.S. 159, 196 (1983)).
Hamdi, “Whatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy organizations
in times of conflict, it most assuredly envisions a role for all three
branches when individual liberties are at stake.” Hamdi, 124 S. Ct. at
2650.
6696 ALPERIN v. VATICAN BANK
Indeed, the Holocaust Survivors’ allegations that the Vati-
can Bank violated international law by “creat[ing] a ‘ratline’
or ‘pipeline’ to help the war criminals flee from prosecution”
could also be levied against the United States, which provided
similar aid driven by the sudden shift in priorities from fight-
ing the Nazis to driving back Communism:
[The College of San Girolamo in Rome] helped fugi-
tive Croatian war criminals escape to the Western
Hemisphere in the early postwar years, and cooper-
ated with the “rat line” being used by the U.S. Army
Counter Intelligence Corps after the War to assist the
escape from Europe of anti-Communists. The fact
that the “rat line” later facilitated the escape even of
a Nazi war criminal like Klaus Barbie underscores
the shift in the Allies’ attitudes: World War II was
over; the Cold War was on.
Ustasha Treasury Report, supra note 3, at xviii. The United
States has acknowledged that “conflicting priorities on the
part of the Allies—particularly the need to rebuild a war-torn
Europe and assemble a Western coalition against Soviet
aggression with the onset of the Cold War—led to an insuffi-
cient recovery of looted gold and other assets.” Id. at iv. It is
not our role to sit in judgment as to whether the perceived
Communist threat justified assisting alleged war criminals.
Rather, we are mindful of the Supreme Court’s admonition
that it is up to the political branches to come to terms with
these “delicate [and] complex” foreign policy decisions “for
which the Judiciary has neither aptitude, facilities nor respon-
sibility and which has long been held to belong in the domain
of political power not subject to judicial intrusion or inquiry.”
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333
U.S. 103, 111 (1948).
Whether the Holocaust Survivors’ claims related to slave
labor are justiciable is a more nettlesome question. The exact
nature of the slave labor claims against the Vatican Bank is
ALPERIN v. VATICAN BANK 6697
not entirely clear from the Complaint. The Holocaust Survi-
vors allege that class members share a common question of
fact whether “Defendants were directly and/or indirectly
involved with the . . . conversion of . . . Plaintiffs’ labor” and
further allege that “Defendants have failed to . . . pay to Plain-
tiffs . . . the value of slave labor performed.” Although the
Complaint maintains that many of the Ustasha officials were
Roman Catholic clergy, it does not indicate that the Vatican
Bank itself directly exploited the slave labor. Unlike cases in
which the defendants were the enslaving entities, the slave
labor claims against the Vatican Bank are, in effect, derivative
claims: The Ustasha profited from slave labor, these profits
benefitted the Ustasha treasury, and portions of these tainted
funds were transferred to the Vatican Bank. Cf. Deutsch, 324
F.3d at 704 (plaintiffs “were forced to work as slaves” for
defendant corporation); Iwanowa, 67 F. Supp. 2d at 431(defendants forced plaintiffs “to perform forced labor under
inhuman conditions”).
[16] Determining whether the Vatican Bank was unjustly
enriched by profits derived from slave labor would therefore
necessitate that we look behind the Vatican Bank and indict
the Ustasha regime for its wartime conduct.18 We are not will-
ing to take this leap. Condemning—for its wartime actions—
a foreign government with which the United States was at war
would require us to “review[ ] an exercise of foreign policy
judgment by the coordinate political branch to which author-
ity to make that judgment has been ‘constitutional[ly] com-
18
In rejecting the Holocaust Survivors’ slave labor claims, we distin-
guish profits derived from slave labor from those derived from investing
seized assets. In the former case, the court would need to evaluate the
Ustasha’s wartime use of slave labor, quantify the monetary value of this
labor, and then determine the portion thereof that flowed to the Vatican
Bank. In contrast, if the Holocaust Survivors can surmount the daunting
evidentiary obstacles and establish that seized assets came to rest with the
Vatican Bank, then the Property Claims could encompass both the value
of the assets themselves as well as any profits earned by the Vatican Bank
from the subsequent investment of the seized assets.
6698 ALPERIN v. VATICAN BANK
mit[ted].’ ” Goldwater, 444 U.S. at 1006 (Brennan, J.,
dissenting) (quoting Baker, 369 U.S. at 217); cf. Linder v.
Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992) (holding in
case involving the murder of an American by the Nicaraguan
Contras that “the broad allegations . . . which comprise the
entire military and political opposition in Nicaragua, are non-
justiciable”).
[17] This determination that the slave labor claims run
afoul of the first Baker test is reinforced by the third Baker
test, which asks whether the issue can be decided “without an
initial policy determination of a kind clearly for nonjudicial
discretion.” Baker, 369 U.S. at 217. It is not our place to
speak for the U.S. Government by declaring that a foreign
government is at fault for using forced labor during World
War II. Any such policy condemning the Ustasha regime must
first emanate from the political branches.
Our conclusion that the slave labor claims are not justicia-
ble comports with our decision in Deutsch. The two cases are
superficially similar in that they address the same general sub-
ject matter of Holocaust-era slave labor claims. In Deutsch,
however, we based our holding on federal-state relations
rather than separation of powers concerns.19 324 F.3d at 705-
16. And, unlike this case where there are no treaties on point,
we emphasized in Deutsch that “the United States resolved
the war against Germany by becoming a party to a number of
treaties and international agreements.” Id. at 712 n.15. Conse-
quently, although in both cases we reach the same ultimate
conclusion that the slave labor claims cannot proceed, we do
so here because adjudicating these claims would entail med-
19
The district court in Deutsch dismissed the action as presenting a non-
justiciable political question. See Deutsch, 324 F.3d at 705 (citing Deutsch
v. Turner, No. CV 00-4405 (C.D. Cal. Aug. 25, 2000)). On appeal, we dis-
agreed with the court’s application of the doctrine on the basis that the
mere application of treaties concluded with Germany did not raise a politi-
cal question. 324 F.3d at 713 n.11.
ALPERIN v. VATICAN BANK 6699
dling in matters reserved to the political branches and not
because this result is compelled by treaties.
Nor does our decision conflict with the Second Circuit’s
reasoning in Kadic, a case which, in addition to geographic
parallels, involved claims tied to similar genocidal acts. See
70 F.3d at 236-37. In Kadic, Croats and Muslims brought suit
against Radovan Karadzic under the ATS alleging that he
oversaw the genocidal campaign conducted by Bosnian-Serb
military forces. Id. In holding that the claims were not barred
by the political question doctrine, the court cautioned that
“judges should not reflexively invoke the[ ] doctrine[ ] to
avoid difficult and somewhat sensitive decisions in the con-
text of human rights.” Id. at 249. We agree. Unlike in Kadic,
however, we think that “weigh[ing] carefully the relevant
considerations” at stake in this particular case, adjudicating
the slave labor claims in the context presented here would
“compromis[e] the primacy of the political branches in for-
eign affairs.” Id. Not only did the State Department “ex-
pressly disclaim[ ] any concern that the political question
doctrine should be invoked” in Kadic, id. at 250, but the
claims in Kadic focused on the acts of a single individual dur-
ing a localized conflict rather than asking the court to under-
take the complex calculus of assigning fault for actions taken
by a foreign regime during the morass of a world war. The
slave labor claims present no mere tort suit. On the contrary,
these claims fundamentally rest on “controversies which
revolve around policy choices and value determinations con-
stitutionally committed for resolution to the halls of Congress
or the confines of the Executive Branch.” Japan Whaling
Ass’n, 478 U.S. at 230.
[18] Our decision to affirm the district court’s dismissal of
the War Objectives Claims is not a result we reach lightly.20
20
We caution that our holding does not signify that slave labor claims
automatically raise issues that are committed to the political branches. As
with all claims, this determination must be based on the circumstances of
6700 ALPERIN v. VATICAN BANK
We do not wish to imply in the slightest that these claims do
not represent gravely serious harms for which the Holocaust
Survivors deserve relief. The difficulty is that relief lies else-
where. As the court observed in In re Austrian and German
Bank Holocaust Litigation, “Those persecuted by the Nazis
were the victims of unspeakable acts of inhumanity. At the
same time, however, it must be understood that the law is a
tool of limited capacity. Not every wrong, even the worst, is
cognizable as a legal claim.” 80 F. Supp. 2d at 177. In this
case, the Holocaust Survivors must look to the political
branches for resolution of the War Objectives Claims which,
at base, are political questions.
III. CONCLUSION
We REVERSE the district court’s grant of the Vatican
Bank’s motion to dismiss with regard to the Holocaust Survi-
vors’ Property Claims for conversion, unjust enrichment, res-
titution, and an accounting. We AFFIRM the district court’s
grant of the Vatican Bank’s motion to dismiss with regard to
all other claims in the Complaint, specifically the War Objec-
tives Claims. We also AFFIRM the district court’s order dis-
missing the action against the Croatian Liberation Movement
for lack of personal jurisdiction.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED. Costs shall be awarded to appellants.
TROTT, Circuit Judge, concurring in part, and dissenting in
part:
It is unlikely that a better case could be made for the major-
ity’s view that some of these matters are justiciable than the
the particular case. See, e.g., In re African-American, 304 F. Supp. 2d at
1056-60 (concluding that slave reparation claims were not justiciable in
part because “reparations to former slaves following the Civil War[ ] was
considered and rejected by the Representative Branches”).
ALPERIN v. VATICAN BANK 6701
one made by Judge McKeown in her well written opinion.
Nevertheless, and with all due respect to my esteemed col-
leagues, I find part of their analysis unconvincing. In the
main, the segregation for analytical purposes of the plaintiffs’
claims into two distinct groups — “Property Claims” as dis-
tinguished from “War Objective Claims” — splits the atom
where it is not divisible. In this respect, I agree with the
defendants/appellees: “All claims asserted by plaintiffs are
‘inextricably intertwined’ with the Executive Branch’s powers
over war-related crimes, such that the judiciary is powerless
to adjudicate them.” Accordingly, although I agree that the
so-called War Objective Claims are not justiciable, I respect-
fully dissent as to the others.
I concur in and adopt the district court’s view that appel-
lants’ complaint unmistakably and inextricably raises issues
that our Constitution commits to the legislative and executive
branches of our government, not to the judiciary. Alperin v.
Vatican Bank, 242 F. Supp. 2d 686 (N.D. Cal. 2003). This
case fatally falls into at least two of the off-limits political
question categories — defined as “formulations” — in Baker
v. Carr, 369 U.S. 186, 217 (1962): (1) “a textually demonstra-
ble constitutional commitment of the issue to a coordinate
political department;” and (2) “a lack of judicially discover-
able and manageable standards for resolving it.” Id.I
As to the primary formulation — a constitutional commit-
ment of the issue to a political department — the record com-
pels us to take our lead from Chief Justice Marshall who said
that “[q]uestions, in their nature political, or which are, by the
Constitution and laws, submitted to the executive, can never
be made in this court.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 170 (1803) (emphasis added). The Baker court
repeated this “clearly settled” principle, which emanates from
our Constitution’s careful allocation and separation of powers
between our three branches, and in so doing identified “for-
6702 ALPERIN v. VATICAN BANK
eign relations” as one of the areas in which nonjusticiable
political questions routinely arise, citing Oetjen v. Cent.
Leather Co., 246 U.S. 297, 302 (1918): “The conduct of the
foreign relations of our Government is committed by the Con-
stitution to the executive and legislative — ‘the political’ —
departments of the government, and the propriety of what
may be done in the exercise of this political power is not sub-
ject to judicial inquiry or decision.” Baker, 369 U.S. at 211 n.
31. In elaboration of this doctrine, the Oetjen court said,
The principle that the conduct of one independent
government cannot be successfully questioned in the
courts of another is as applicable to a case involving
the title to property brought within the custody of a
court, such as we have here, as it was held to be to
the cases cited, in which claims for damages were
based upon acts done in a foreign country, for it rests
at last upon the highest considerations of interna-
tional comity and expediency. To permit the validity
of the acts of one sovereign state to be reexamined
and perhaps condemned by the courts of another
would very certainly “imperil the amicable relations
between governments and vex the peace of nations.”
246 U.S. at 303-04.
One of the earliest cases involving the respective authority
of courts and Congress appears to be United States v. Palmer,
16 U.S. (3 Wheat.) 610 (1818), a case involving inter alia a
robbery committed on the high seas by a non-citizen on board
a ship belonging exclusively to subjects of a foreign state. The
Court held (1) that a specific act of Congress criminalizing
piracy did not give authority to our federal courts to take cog-
nizance of, try, and punish such an act on the high seas as rob-
bery, and (2) that the courts are not empowered to so act
without authority from Congress. Id. at 633-35. In explanation
of this decision, Chief Justice Marshall said,
ALPERIN v. VATICAN BANK 6703
Those questions which respect the rights of a part of
a foreign empire, which asserts, and is contending
for its independence, and the conduct which must be
observed by the courts of the union towards the sub-
jects of such section of an empire who may be
brought before the tribunals of this country, are
equally delicate and difficult.
As it is understood that the construction which has
been given to the act of Congress, will render a par-
ticular answer to them unnecessary, the court will
only observe, that such questions are generally rather
political than legal in their character. They belong
more properly to those who can declare what the
law shall be; who can place the nation in such a
position with respect to foreign powers as to their
own judgment shall appear wise; to whom are
entrusted all its foreign relations; than to that tribu-
nal whose power as well as duty is confined to the
application of the rule which the legislature may
prescribe for it. In such contests a nation may
engage itself with the one party or the other — may
observe absolute neutrality — may recognize the
new state absolutely — or may make a limited rec-
ognition of it. The proceeding in courts must depend
so entirely on the course of the government, that it
is difficult to give a precise answer to questions
which do not refer to a particular nation. It may be
said, generally, that if the government remains neu-
tral, and recognizes the existence of a civil war, its
courts cannot consider as criminal those acts of hos-
tility which war authorizes, and which the new gov-
ernment may direct against its enemy. To decide
otherwise, would be to determine that the war prose-
cuted by one of the parties was unlawful, and would
be to arrange the nation to which the court belongs
against that party. This would transcend the limits
prescribed to the judicial department.
6704 ALPERIN v. VATICAN BANK
Id. at 634-35 (emphasis added).
The Court registered a similar observation in Foster v. Neil-
son:
In a controversy between two nations concerning
national boundary, it is scarcely possible that the
courts of either should refuse to abide by the mea-
sures adopted by its own government. There being
no common tribunal to decide between them, each
determines for itself on its own rights, and if they
cannot adjust their differences peaceably, the right
remains with the strongest. The judiciary is not that
department of the government to which the assertion
of its interests against foreign powers is confided;
and its duty commonly is to decide upon individual
rights, according to those principles which the polit-
ical departments of the nation have established.
27 U.S. (2 Pet.) 253, 307-08 (1829), overruled on other
grounds by United States v. Percheman, 32 U.S. (7 Pet.) 51
(1833) (emphasis added).
The Supreme Court has spoken frequently about this issue,
and each time it has reiterated the structural and prudential
proposition that the “President also possesses in his own right
certain powers conferred by the Constitution on him as
Commander-in-Chief and as the Nation’s organ in foreign
affairs.” Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103, 109 (1948). Accordingly, the Court has made
it clear that
the very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are
wholly confided by our Constitution to the political
departments of the government, Executive and Leg-
islative. . . . They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor
ALPERIN v. VATICAN BANK 6705
responsibility and have long been held to belong in
the domain of political power not subject to judicial
intrusion or inquiry.
Id. 333 U.S. at 111. See also Schroeder v. Bush, 263 F.3d
1169, 1175 (10th Cir. 2001).
Parenthetically, unlike the majority, I read this principle to
include all matters that fall by their constitutional DNA into
this sphere, whether the political branches have done anything
about them or not. With all respect to my valued colleagues,
I see it as a mistake to measure this issue of justifiability by
a “this lawsuit is the only game in town” standard. This is not
our “game,” period, and we do not become vested with juris-
diction by default of the other branches. The majority opinion
indicates that Executive silence is somehow relevant. I hum-
bly disagree. The silence of another Branch cannot give us
jurisdiction we do not otherwise have. The non-existence of
an executive agreement is meaningless.
Notwithstanding appellants’ lawyers’ ability to cast this
dispute in “garden-variety” legal terms, i.e., conversion,
unjust enrichment, restitution, etc., the ineffable fact remains
that this functionally is a lawsuit against (1) the Vatican itself,
(2) the Vatican Bank, which is an instrumentality of the sov-
ereign state of the Vatican, and (3) untold others — including
probably the Pope — seeking relief for World War II wrongs
against foreigners committed by the Nazis and their allies in
Europe almost sixty years ago. As Judge Debevoise said in
Burger-Fischer v. DeGussa AG, 65 F. Supp. 2d 248, 281
(D.N.J. 1999), “It is not accurate to characterize the present
actions as simply [typical] controversies between private par-
ties.” Much more is clearly at stake. Stripped to its essentials,
this is a derivative lawsuit against a sovereign seeking “repa-
rations” for injuries and losses suffered during wartime at the
hands of the Nazis and their alleged accomplices. As
acknowledged by the majority, the Vatican has filed a note of
protest and asked our State Department to intervene. This set
6706 ALPERIN v. VATICAN BANK
of facts and circumstances involving a foreign sovereign
strikes me as demanding a “single-voiced statement” of our
government’s views, not a series of judgments by our courts.
Baker, 369 U.S. at 211. I conclude, therefore, that the foreign
policy quintessence of this case renders it as a subject matter
beyond the power of the judiciary to intrude or to inquire.
Judge Greenaway’s astute analysis in Iwanowa v. Ford
Motor Company, 67 F. Supp. 2d 424, 485 (1999) is apposite:
The executive branch has always addressed claims
for reparations as claims between governments. His-
torically, at the end of a war, there has always been
a declaration of victorious nations and defeated
nations. As part of that process, the victorious
nations invariably discuss the reparations that the
defeated nations must pay to compensate the prevail-
ing countries and their nationals for the loss that the
aggressor country has caused. The nature of war is
such that the governments of the victorious nations
determine and negotiate the resolution of the claims
of their nationals by way of agreements between the
nations involved or affected by the war. This is evi-
dent from the reparations provisions in the Treaty of
Versailles following World War I, and the discussion
of reparations in the Yalta Conference, the Potsdam
Conference and the Paris Reparations Treaty at the
end of World War II. More recently, at the end of the
Gulf War, the United Nations established an interna-
tional claims resolution tribunal to resolve claims
against Iraq. See Elyse J. Garmise, The Iraqi Claims
Process and the Ghost of Versailles, 67
N.Y.U.L.Rev. 840, 841 (1992). Thus, it is evident
that responsibility for resolving forced labor claims
arising out of a war is constitutionally committed to
the political branches of government, not the judi-
ciary.
ALPERIN v. VATICAN BANK 6707
In a footnote to this discussion, the court observed that the
“ ‘concept of reparations encompasses all international law
claims for compensation related to war [including] individual
claims by injured citizens of victorious powers.’ ” Id. at 485
n.84 (quoting Ministerial Director Horst Teltschik).
When California attempted by legislation to insert itself
into Holocaust-era insurance policies, the Supreme Court
stepped in and held that California’s law was preempted
because it interfered with the President’s conduct of our
Nation’s foreign policy. In reversing our Ninth Circuit opin-
ion to the contrary, see Gerling Global Reinsurance Corp. of
Am. v. Low, 296 F.3d 832 (9th Cir. 2002), the Court made cer-
tain observations about the authority of the President that add
considerable weight against the view that Alperin’s claims are
justiciable:
Nor is there any question generally that there is
executive authority to decide what that [foreign rela-
tions] policy should be. Although the source of the
President’s power to act in foreign affairs does not
enjoy any textual detail, the historical gloss on the
“executive Power” vested in Article II of the Consti-
tution has recognized the President’s “vast share of
responsibility for the conduct of our foreign rela-
tions.”
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (cita-
tion omitted). The Garamendi court continued:
At a more specific level, our cases have recog-
nized that the President has authority to make “exec-
utive agreements” with other countries, requiring no
ratification by the Senate or approval by Congress,
this power having been exercised since the early
years of the Republic. See Dames & Moore v.
Regan, 453 U.S. 654, 679, 682-683, 101 S.Ct. 2972,
69 L.Ed.2d 918 (1981); United States v. Pink, 315
6708 ALPERIN v. VATICAN BANK
U.S. 203, 223, 230, 62 S.Ct. 552, 86 L.Ed. 796(1942); United States v. Belmont, 301 U.S. 324, 330-
331, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); see also L.
Henkin, Foreign Affairs and the United States Con-
stitution 219, 496, n. 163 (2d ed.1996) (“Presidents
from Washington to Clinton have made many thou-
sands of agreements . . . on matters running the
gamut of U.S. foreign relations”). Making executive
agreements to settle claims of American nationals
against foreign governments is a particularly long-
standing practice, the first example being as early as
1799, when the Adams administration settled
demands against the Dutch Government by Ameri-
can citizens who lost their cargo when Dutch priva-
teers overtook the schooner Wilmington Packet. See
Dames & Moore, supra, at 679-680, and n. 8, 101
S.Ct. 2972.
* * *
To begin with, resolving Holocaust-era insurance
claims that may be held by residents of this country
is a matter well within the Executive’s responsibility
for foreign affairs. Since claims remaining in the
aftermath of hostilities may be “sources of friction”
acting as an “impediment to resumption of friendly
relations” between the countries involved, Pink,
supra, at 225, 62 S.Ct. 552, there is a “longstanding
practice” of the national Executive to settle them in
discharging its responsibility to maintain the
Nation’s relationships with other countries, Dames
& Moore, 453 U.S., at 679, 101 S.Ct. 2972. The
issue of restitution for Nazi crimes has in fact been
addressed in Executive Branch diplomacy and for-
malized in treaties and executive agreements over
the last half century, and although resolution of pri-
vate claims was postponed by the Cold War, secur-
ing private interests is an express object of
ALPERIN v. VATICAN BANK 6709
diplomacy today, just as it was addressed in agree-
ments soon after the Second World War. Vindicating
victims injured by acts and omissions of enemy cor-
porations in wartime is thus within the traditional
subject matter of foreign policy in which national,
not state, interests are overriding, and which the
National Government has addressed.
Id. at 415, 420-21 (emphasis added).
Finally, as we recognized in Deutsch v. Turner Corp., 324
F.3d 692, 712-13 (9th Cir. 2003),
The United States has already exercised its own
exclusive authority to resolve the war, including
claims arising out of it. It did not choose, however,
to incorporate into that resolution a private right of
action against our wartime enemies or their nation-
als. The United States resolved the war against Ger-
many by becoming a party to a number of treaties
and international agreements, beginning with the
1945 agreements at Yalta and Potsdam, in which the
United States, Britain, and the Soviet Union agreed
to extract reparations from Germany and its nation-
als but did not include a private right of action
against either. . . . Most recently, the Foundation
Agreement of July 17, 2000, an executive agreement
between the governments of Germany and the
United States, provided a limited form of remedy for
claimants such as Deutsch.
I would add that we entered into a similar treaty with Italy
in 1947. Article 75 of that Treaty provides with respect to res-
titution as follows:
1. Italy accepts the principles of the United
Nations Declaration of January 5, 1943, and shall
return, in the shortest possible time, property
6710 ALPERIN v. VATICAN BANK
removed from the territory of any of the United
Nations.
2. The obligation to make restitution applies to
all identifiable property at present in Italy which was
removed by force or duress by any of the Axis Pow-
ers from the territory of any of the United Nations,
irrespective of any subsequent transactions by which
the present holder of any such property has secured
possession.
....
8. The Italian Government shall restore to [the
United Nation] all monetary gold looted or wrong-
fully removed to Italy.
Treaty of Peace with Italy, Feb. 10, 1947, U.S.-Italy, United
States Statutes At Large, Vol. 61, pp. 1400-01.
II
As recognized by the majority, “the potential class is mas-
sive,” and, as the district court concluded, the case as pleaded
would be unmanageable. This unimpeachable observation
brings this lawsuit within Baker’s second category: the task is
beyond the competence of a court of law. The district court
relied, in this respect, on Kelberine v. Societe Internationale,
363 F.2d 989 (D.C. Cir. 1966), which correctly said,
The span between the doing of the damage and the
application of the claimed assuagement is too vague.
The time is too long. The identity of the alleged tort-
feasors is too indefinite. The procedure sought —
adjudication of some two hundred thousand claims
for multifarious damages inflicted twenty to thirty
years ago in a European area by a government then
in power — is too complicated, too costly, to justify
ALPERIN v. VATICAN BANK 6711
undertaking by a court without legislative provision
of the means wherewith to proceed.
Id. at 995.
I agree with our prudent district court’s carefully consid-
ered opinion, which echos the Supreme Court’s concerns in
Waterman about the aptitude and facilities in this context, that
this case as presented would lack judicial reins:
Here, by contrast, plaintiffs do not seek recovery
of money and assets withheld from specific accounts
but, rather, the undetermined value of property
stolen in untold ways in a multiplicity of regions by
both military personnel and civilians. Moreover,
plaintiffs seek such recovery out of an undivided
portion of the Ustasha Treasury transferred to the
IOR. Such claims require a review of materials from
a multitude of foreign sources that, “by sheer bulk
alone,” are likely to be unmanageable. See Atlee, 347
F. Supp. [689, 701 (E.D. Pa. 1972)]. Compounding
the problem, “there is a distinct possibility that the
parties might not be able to compile all of the rele-
vant information, thus making any attempt to justify
a ruling on the merits of an issue that will affect the
nation difficult and imprudent.” See Iwanowa, 67
F. Supp. 2d [424, 483-84 (D.N.J. 1999)]; see also
Atlee, 347 F. Supp. at 702 (noting “the inherent
inability of a court to predict the international conse-
quences flowing from a decision on the merits.”)
Further, plaintiffs’ claims require this Court to
resolve the competing rights to the Ustasha Treasury
of potentially hundreds of thousands of citizens of
various nations, funds as to which any number of
persons harmed by the Ustasha regime, both repre-
sented and not represented in these proceedings,
might equally assert a claim.
6712 ALPERIN v. VATICAN BANK
Alperin, 242 F. Supp. 2d at 694-95. It will be interesting to
say the least to watch the district court struggle on remand to
enforce its rulings against the Vatican. Based on my experi-
ence with litigation involving foreign nations, it will be just
a matter of time until the State and Justice Departments are
dragged into this case as the district court begins to reach out
for evidence and witnesses and to exercise its power to
enforce its orders.
III
No one could possibly be comfortable identifying a barrier
to the relief sought by these plaintiffs, persons who suffered
some of the most unspeakably grievous injuries to their lives
and families. As Judge Reinhardt said in Deutsch, the Holo-
caust was “the most atrocious act ever perpetrated by a civi-
lized (or uncivilized) people, an act unparalleled in history.”
324 F.3d at 704. Nevertheless, our courts are not the appropri-
ate fora for redress. What the majority has unintentionally
accomplished in embracing this case is nothing less than the
wholesale creation of a World Court, an international tribunal
with breathtaking and limitless jurisdiction to entertain the
World’s failures, no matter where they happen, when they
happen, to whom they happen, the identity of the wrongdoer,
and the sovereignty of one of the parties. The consequences
of this holding are overwhelming. I need go no deeper than
the third amended class action complaint to illustrate this
point:
1. This is a civil action arising under customary
international law and the laws of the United States of
America on behalf of named Plaintiffs and a class of
all Serbs, Jews, and former Soviet Union citizens
(and their heirs and beneficiaries), who suffered
physical, monetary and/or property losses including
slave labor, due to the systematic and brutal extermi-
nation of Jews, Serbs, and Romani by the Nazi pup-
pet Regime, The Independent State of Croatia
ALPERIN v. VATICAN BANK 6713
(NDH) led by Pavelic’s Ustasha Regime, and as a
result of the occupation of the former Soviet Union
by Croatian military forces in concert with their Ger-
man occupation forces. This is an action against the
Vatican Bank, Franciscan Order and Unknown Cath-
olic Religious Orders, Croatian Liberation Move-
ment (HOP), Swiss National Bank (SNB) and as yet
unnamed recipients of Nazi and Ustasha Loot,
Swiss, Austrian, Argentine, Spanish, Italian, Portu-
guese, and German banking institutions and Califor-
nia and other United States correspondent banks for
their participation in and benefit from the Ustasha
Regime’s acts of cruelty and violence.
2. Plaintiffs and their heirs and beneficiaries seek
accounting, restitution, disgorgement, and to recover
damages arising out of the participation of Defen-
dants, Vatican Bank or Istituto Per Le Opere Di
Religione (hereinafter referred to as IOR), the Fran-
ciscan Order (OFM) and Unknown Catholic Reli-
gious Orders, Croatian Liberation Movement (HOP),
Swiss National Bank (SNB), unknown recipients of
Nazi and Ustasha loot, and other banking institutions
and correspondent banks and religious orders and
organizations in a common scheme and course of
conduct: (a) to profit from, both directly and indi-
rectly, the inhumane and genocidal system instituted
by the Nazi-directed Ustasha Regime in Croatia and
territories subject to Croatian civil or military occu-
pation upon those peoples that it viewed, not as
human beings, but as subhuman according to Nazi
and Ustasha ideology; (b) to obtain, accept, conceal,
convert and profit from assets looted by the Ustasha
Regime and deposited in, or liquidated through, the
IOR, SNB, unnamed Doe Defendant Banks, and
Franciscan Order during the ascendancy of the
Ustasha Regime and following the demise of the
Regime at the behest of the former Ustasha and Nazi
6714 ALPERIN v. VATICAN BANK
leaders through the offices of the Franciscan Order;
and (c) to retain and convert assets deposited in their
institutions by the Croatian Liberation Movement,
Ustasha and/or the Franciscan Order and Unknown
Catholic Religious Orders.
3. Defendants committed, conspired to commit,
and aided and abetted others who committed crimes
against peace, war crimes and crimes against human-
ity. Defendants assisted the Ustasha Regime and its
leaders as well as prominent Nazis to successfully
evade justice for their genocidal crimes by conceal-
ing and making available the considerable assets of
the Ustasha Treasury.
* * *
WHEREFORE, Plaintiffs pray that the Court:
1. Certify this action as a class action pursuant to
FEDERAL RULE OF CIVIL PROCEDURE 23, and
designating named Plaintiffs as the class representa-
tives and counsel for Plaintiffs as Class counsel.
2. Declare that Defendants by trafficking in,
retaining, disposing of and concealing assets looted
from targets of the Ustasha Regime with knowledge
that the assets had been obtained through the system-
atic persecution, torture, slave labor, force, and mur-
der, violated international treaties and customary
international law enforceable in this Court as federal
common law, the law of the nations and international
law.
3. Order Defendants to make available all infor-
mation relating to the Ustasha Treasury in order that
an accounting of assets may be realized.
ALPERIN v. VATICAN BANK 6715
4. Direct Defendants to return all identifiable
property looted from Plaintiffs and received by
Defendants.
5. Award Plaintiffs the value of any identified
property deposited by, or looted from, Plaintiffs and
received by Defendants plus interest compounded
annually since 1941.
6. Award Plaintiffs compensatory and punitive
damages arising out of Defendants’ unlawful behav-
ior in trafficking in, retaining, disposing and con-
cealing Looted Assets or profits of the Ustasha
Regime with knowledge that the assets or profits
were the fruits of Nazi-Ustasha violations of interna-
tional law and were used to assist war criminals to
evade justice.
7. Order Defendants to disgorge any profits
earned by trafficking in, disposing of or concealing
the Ustasha Treasury which was the fruits of viola-
tions of international law.
8. Grant Plaintiffs a jury trial on all issues so tri-
able.
9. Award Plaintiffs the costs of this action,
including reasonable attorneys’ fees and expert fees;
and,
10. Grant such other and further relief as shall
seem just to the Court.
Our unauthorized transformation of our district courts into
an open-door international tribunal far overreaches the author-
ity of “the least dangerous branch” of our government. This
opinion, albeit well-intentioned, extends the concept of judi-
cial authority into unknown territory and mistakenly exercises
6716 ALPERIN v. VATICAN BANK
power and competence that plainly belongs to the President
and to Congress. Today, it is the Vatican and the Holocaust.
Tomorrow, will it be horrors from Haiti, Cuba, Rwanda,
South Africa, the Soviet Union, Bosnia, Sudan, Somalia,
North Korea, Iraq, and who knows where? The majority opin-
ion sends our district judges on a crusade from which they are
not equipped and which is doomed to flounder. As a class
action, it will make all others seem like cakewalks. One can
only wonder if the filing of this lawsuit is nothing more than
a ploy to force the President and the State Department to take
action. Similarly, one can only wonder why the beleaguered
State Department would stand silently by and allow this case
to continue — in the Ninth Circuit no less, where mistakenly
we would have allowed the Garamendi litigation to proceed.
Thus, I respectfully disagree that Alperin’s unseverable
“garden-variety” claims are justiciable.