Case No. 19-351 | D.C. Cir.
December 7, 2020
Preview by Josh Keyser, Member
In Federal Republic of Germany v. Philipp, the Supreme Court will address whether a foreign state can claim an exception to foreign sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”) for issues of “property taken in violation of international law” where the property was expropriated from that state’s own nationals. 28 U.S.C. § 1605(a)(3) (2018). The case also requires the Court to resolve a circuit split on whether courts can abstain from adjudicating cases against foreign sovereigns under the doctrine of international comity.
In 1935, agents of the German state of Prussia bought a collection of medieval art from a consortium of Jewish art dealers, allegedly at a fraction of its value. After a German government commission declined to recommend restitution be made the consortium’s heirs in 2008, they filed suit in the District of D.C. Germany brought a motion to dismiss on the grounds of foreign sovereign immunity and a common law, comity-based defense that Philipp failed to exhaust domestic remedies, under which judges may abstain from ruling on the merits out of concerns against passing judgment on matters not yet resolved by the courts of foreign states.
The District Court denied the motion, and the D.C. Circuit affirmed, reasoning that a “genocidal taking” violates international law, thus falling under the FSIA expropriation exception. See Philipp v. Fed. Republic of Germany, 894 F.3d 406, 412 (D.C. Cir. 2018), cert. granted, No. 19-351, 2020 WL 3578677 (U.S. July 2, 2020). The D.C. Circuit also held that the FSIA was intended to provide a comprehensive standard for foreign sovereign immunity which “leaves no room for a common-law exhaustion doctrine based on . . . considerations of comity.” Id. at 416. The D.C. Circuit acknowledged that its reasoning splits from the Seventh Circuit’s, which allowed a similar comity-based abstention in Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir. 2015).
On the first issue, Germany reiterates that there was no violation of international law because an instrument of the German government purchased the property of German nationals, therefore any wrongdoing is purely a matter of German domestic law. Brief for Petitioners at 16–18, Fed. Republic of Germany v. Philipp, No. 19-351 (U.S. filed Sept. 4, 2020). Germany also claims that the art collection was bought at fair market value in light of the Great Depression and conditions in the art market, not compelled as a part of the larger scheme of Nazi property seizures from Jewish Germans, and therefore was not an expropriation connected with genocide. See id. at 6.
Philipp responds that the sale was a taking in connection with genocide that inherently violated international law, arguing that forced selling of art at an extremely low price was inextricably linked with Nazi designs for the Holocaust. Brief for Respondents at 8–10, Fed. Republic of Germany v. Philipp, No. 19-351 (U.S. filed Oct. 22, 2020). Philipp further asserts that the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act explicitly “preserved” jurisdiction over claims arising from Nazi expropriations, suggesting that Congress intended there to be jurisdiction in the first place. Id. at 14–16.
On the second issue, Germany argues that comity-based defenses were not eliminated by passage of the FSIA, which concerns itself solely with jurisdictional defenses, because comity is not jurisdictional but a doctrine of judicial abstention. Brief for Petitioners at 36–37. Germany further suggests that its interest in atonement “in response to its Nazi past” weighs in favor of such an abstention. Id. at 51.
In response, Philipp urges the Supreme Court to accept the D.C. Circuit’s holding that the FSIA articulated comprehensive legal standards for immunity, and that their proposed model for a comity standard is actually just an unsustained argument for forum non conveniens by another name. See Brief for Respondents at 39, 43. Moreover, Philipp argues that there would be no reason for U.S. courts to abstain; German courts are “categorically unavailable” for Holocaust restitution claims, as the enabling legislation for them to hear them is expired. Id. at 54.
Numerous advocacy groups submitted amicus briefs in favor of Philipp’s position. But in a brief supporting Germany’s arguments, Solicitor General Noel J. Francisco cautioned that allowing for jurisdiction in this case would risk “embroiling courts in sensitive foreign policy issues that are better left for the political branches.” Brief for the United States as Amicus Curiae Supporting Petitioners at 14, Fed. Republic of Germany v. Philipp, No. 19-351 (U.S. filed Sept. 11, 2020).