April 2005

POLITICAL QUESTION DOCTRINE; Vol. 11, No. 4

In case of claims by Holocaust Survivors against Vatican Bank for alleged support to Croatian puppet regime during World War II, Ninth Circuit finds property claims justiciable

Here, 24 individuals and four organizations (jointly the "Holocaust Survivors") claim that the Vatican Bank (officially known as Instituto per le Opere di Religione), the Order of Friars Minor, and the Croatian Liberation Movement (Hvratski Oslobodilacki Pokret) profited from the genocidal acts of the Croatian Ustasha regime which was supported by Nazi forces during the Second World War. The ill-gotten profits allegedly passed through the Vatican Bank.

The Holocaust Survivors' claims include conversion, unjust enrichment, as well as human rights violations. They base jurisdiction on the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350, the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605, 28 U.S.C. Section 1331, as well as federal common law to the extent it incorporates customary international law and treaties. The Vatican Bank and the Order of Friars Minor moved to dismiss. The district court held that the political question doctrine barred the Holocaust Survivors' claims in their entirety. This appeal ensued.

The U.S. Court of Appeals for the Ninth Circuit affirms in part and reverses in part.

In its view, the political question doctrine applies to some of the plaintiffs' claims and some are justiciable. The doctrine, however, does not bar the Holocaust Survivors' claims as to lost and looted property while the alleged human rights violations related to the Vatican Bank's alleged aid are nonjusticiable.

There may be cases that involve foreign relations and are nevertheless justiciable. "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 doing so, we respect the limits of our jurisdiction as a national court, recognize the role of the Executive in foreign relations, and stick to our role of interpreting the law." [Slip op. 7]

As for the property claims, the fact that they are "politically charged" does not make them "political questions." According to the complaint, the property claims are ordinary claims for the recovery of property. For instance, "50 advanced industrial Singer sewing machines" taken from the family of one plaintiff, as well as "money and other belongings including gold" taken from the mother and grandmother of another plaintiff.

In essence, the property claims lead to the ultimate question of whether the Vatican Bank is wrongfully holding any of the looted assets. This is a simple determination that courts make, and does not implicate the political branches of the Government.

The Court then applies the Baker v. Carr formulations to this case:

"Beginning logically with the first Baker test, we divine no explicit constitutional reference that is applicable in this case ... Because the Property Claims do not raise questions entrusted to one of the political branches or involving no judicially enforceable rights,' ... we fulfill our duty to say what the law is." [Slip op. 36-45]

As for judicially discoverable and manageable standards, the Court notes that "[t]he Holocaust Survivors' most straightforward claims involve identifiable personal property for which federal statutes, common law, state law, and well-established case law provide a concrete legal basis for courts to reach a reasoned decision. See, e.g., 28 U.S.C. Section 1605(a)(3) (providing an expropriation exception to sovereign immunity in certain cases involving rights in property taken in violation of international law') ..." [Slip op. 48-49]

"Nor do we think that adjudicating the Property Claims will be impossible without [making] an initial policy determination of a kind clearly for nonjudicial discretion.' ... 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." [Slip op. 55]

"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. ... 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, as well as relations with other foreign states, is a separate matter. ... We conclude that judicial handling of the Property Claims will not run afoul of this fourth test." [Slip op. 55-56]

As for the fifth Baker formulation, "[w]e see no concern that judicial handling of the Property Claims will involve an unusual need for unquestioning adherence to a political decision already made.' ... 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. ... 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." [Slip op. 62-63]

"The only question remaining is whether adjudicating the Property Claims would cause the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' ... On the contrary, this case is marked by the absence of pronouncements' by the political branches regarding the resolution of claims to the Ustasha treasury."

"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, agreements, or settlements are on the horizon. ... In sum, none of the Baker formulations is inextricable' from the Property Claims. ... The Holocaust Survivors have presented a justiciable controversy." [Slip op. 63-65]

The Holocaust Survivors' allegations that the defendants assisted the Ustasha regime present a nonjusticiable political question ("War Objectives Claims"). It is not the Court's task "to step in a half-century later and condemn the Vatican Bank and related parties for participating in the activities of the Ustasha Regime in furtherance of the commission 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 intrude unduly on certain policy choices and value judgments that are constitutionally committed to [the political branches,]' ..." [Slip op. 69] Neither are the slave labor claims justiciable.

Citation: Alperin v. Vatican Bank, Nos. 03-15208 & 03-16166, 2005 WL 878603 (9th Cir. 2005); The Jerusalem Post, April 20, 2005, page 6; Israel Faxx, April 20, 2005.