Alperin et al v. Vatican Bank et al, No. 3:1999cv04941 - Document 458 (N.D. Cal. 2009)
Court Description: ORDER GRANTING DEFENDANT ORDER OF FRIARS MINOR'S MOTION TO DISMISS. Signed by Judge Maxine M. Chesney on September 11, 2009. (mmclc2, COURT STAFF) (Filed on 9/11/2009)
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Alperin et al v. Vatican Bank et al Doc. 458 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA For the Northern District of California United States District Court 9 10 EMIL ALPERIN, et al., 11 Plaintiffs, 12 13 No. C-99-4941 MMC ORDER GRANTING DEFENDANT ORDER OF FRIARS MINOR’S MOTION TO DISMISS v. THE FRANCISCAN ORDER, et al., 14 Defendants. / 15 16 Before the Court is defendant Order of Friars Minor’s (“OFM”) motion, filed June 12, 17 2009, to dismiss plaintiffs’ Sixth Amended Complaint (“6AC”). Plaintiffs have filed 18 opposition, to which OFM has replied. On July 27, 2009, the Court afforded plaintiffs an 19 opportunity to file a sur-reply and ordered plaintiffs to show cause why the above-titled 20 action should not be dismissed for lack of subject matter jurisdiction. On August 14, 2009, 21 plaintiffs filed a combined sur-reply and response to the Court’s Order to Show Cause 22 (“OSC”). On August 28, 2009, OFM filed a reply to plaintiffs’ response to the OSC.1 23 Having read and considered the papers filed in support of and in opposition to the motion, 24 the Court rules as follows. 25 26 27 BACKGROUND The instant action is brought by individual and organizational plaintiffs on behalf of themselves and a purported class of “all Serbs, Jews, Roma (Gypsies or Sinti-Romani), 28 1 Additionally, on September 1, 2009, OFM filed a Statement of Recent Decision. Dockets.Justia.com 1 and certain former Soviet Union citizens and their legal heirs, successors, assignees, 2 legatees, and beneficiaries,” all of whom are alleged to have suffered monetary and/or 3 property losses caused by the Independent State of Croatia (“Ustasha Regime”) during the 4 period April 1941 through May 1945. (See 6AC ¶¶ 1, 12.) 5 Plaintiffs allege that the sole remaining defendant, OFM,2 is a hierarchical religious 6 order with an administrative structure divided into geographically-based provinces, 7 including “several in the United States,” one of which, the Province of Saint Barbara, having 8 headquarters in Oakland, California. (See id. ¶¶ 89, 91, 93.) Plaintiffs further allege that 9 OFM, through its Minister General, controlled, from 1939 to 1969 and from 1977 to the 10 present, the “Croatian Custody of the Holy Family of Chicago.” (See id. ¶ 109.) 11 Additionally, according to plaintiffs, in 1945, at the “behest” of OFM and two of its members, 12 the formerly disbanded “Croatian Confraternity of Saint Jerome” (“Croatian Confraternity”) 13 was “reestablished . . . as part of an elaborate scheme to assist not just Croatians fleeing 14 the fall of the Ustasha Regime but to provide material and financial support to the Ustasha 15 Regime in exile.” (See id. ¶ 105.) 16 Plaintiffs allege that their property was “seized, carried away and deposited, or 17 otherwise added to the Ustasha Treasury by agents of the Ustasha Regime” (see id. ¶ 12), 18 and that such property was “deliberately concealed, laundered, hypothecated, commingled 19 and converted by [ ] OFM and its agents for the benefit of [OFM] and members of the 20 former Ustasha Regime.” (See id. ¶ 1.) In that regard, plaintiffs allege, funds from the 21 Ustasha Treasury were smuggled outside Croatia, transferred to the Croatian Confraternity 22 and two OFM officials, Fathers Dominik Mandic (“Mandic”) and Krunoslav Draganovic 23 (“Draganovic”), “and then to the Vatican City financial system and elsewhere for 24 conversion.” (See id. ¶ 136.) Plaintiffs further allege that “[a] significant portion of the 25 post[-]war Ustasha Treasury was in the form of jewels and non[-]monetary valuables that 26 required conversion by OFM or was retained by OFM and its agents to [be] used to 27 2 28 On December 27, 2007, the Court dismissed plaintiffs’ claims against defendant Instituto per le Opere di Religione. (See Order filed Dec. 27, 2007.) 2 1 promote the Ustasha cause and Croatian nationalism.” (See id. ¶ 140.) Additionally, 2 according to plaintiffs, “Ustasha Treasury assets were banked and converted by OFM using 3 its accounts in the Vatican and elsewhere for use in Argentina, Brazil, Spain, Portugal[,] the 4 United States, and Italy by the exiled Ustasha and [ ] Mandic-OFM controlled enterprises in 5 Chicago.” (See id. ¶ 141.) 6 In their 6AC, plaintiffs assert causes of action for an accounting, conversion, unjust 7 enrichment, restitution, violations of international law, and replevin and safekeeping. (See 8 id. ¶¶ 160-184.) By the instant motion, OFM argues that the entire action is subject to 9 dismissal for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient 10 service of process, lack of standing, and pursuant to the doctrine of forum non conveniens. 11 The Court addresses first the question of subject matter jurisdiction. LEGAL STANDARD 12 13 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone 14 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts 15 that the allegations contained in a complaint are insufficient on their face to invoke federal 16 jurisdiction.” Id. “By contrast, in a factual attack, the challenger disputes the truth of the 17 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Where, as 18 here, the challenge to jurisdiction is a facial attack, the Court assumes the plaintiff's 19 “allegations to be true and draw[s] all reasonable inferences in his favor.” See Wolfe v. 20 Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Because federal courts are “courts of 21 limited jurisdiction,” however, the burden of establishing subject matter jurisdiction “rests 22 upon the party asserting jurisdiction.” See Kokkonen v. Guardian Life Ins. Co. of Am., 511 23 U.S. 375, 377 (1994). 24 DISCUSSION 25 Plaintiffs contend subject matter jurisdiction exists herein based on diversity of 26 citizenship, see 28 U.S.C. § 1332, the existence of a federal question, see 28 U.S.C. § 27 1331, and the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. As set forth below, the Court 28 finds plaintiffs’ have failed to show any of the above-referenced statutes provides 3 1 jurisdiction over the instant action.3 2 A. 3 Diversity of Citizenship In their opposition to OFM’s motion, plaintiffs initially took the position that the Court 4 may exercise diversity jurisdiction over the instant action under the Class Action Fairness 5 Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005). In response, OFM argued 6 such statute is inapplicable, as it applies only to actions “commenced on or after” February 7 18, 2005, see CAFA § 9, 119 Stat. at 14, and the instant action was commenced in 1999. 8 In their sur-reply and response to the Court’s OSC, plaintiffs have abandoned their reliance 9 on CAFA. (See Sur-Reply & Response to OSC at 10:22-25.) Plaintiffs contend diversity 10 11 jurisdiction nonetheless exists under 28 U.S.C. § 1332(a). Section 1332(a) provides a district court with jurisdiction where, inter alia, “the matter 12 in controversy exceeds the sum or value of $75,000” and the action is between “citizens of 13 a State and citizens or subjects of a foreign state.” See § 1332(a)(2). The statute, 14 however, requires “complete” diversity, and thus “does not encompass a foreign plaintiff 15 suing foreign defendants.” See Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, 16 S.A., 20 F.3d 987, 991 (9th Cir. 1994). Additionally, where there are aliens on both sides of 17 the action, jurisdiction is not “salvage[d]” by the presence of a domestic plaintiff, see id., 18 unless, pursuant to § 1332(a)(3), a diverse domestic defendant is present as well, see § 19 1332(a)(3) (providing for jurisdiction over action between “citizens of different States and in 20 which citizens of a foreign state are additional parties”); Transure, Inc. v. Marsh & 21 McLennan, Inc., 766 F.2d 1297, 1298-99 (9th Cir. 1985) (finding jurisdiction over suit 22 brought by California and United Kingdom corporations against Delaware and South Africa 23 corporations). 24 Here, the action is brought by both foreign and domestic plaintiffs (see 6AC ¶¶ 56- 25 59, 76, 78-80, 83-88 (foreign plaintiffs); id. ¶¶ 60-75, 77, 81 (domestic plaintiffs)), and the 26 27 28 3 Because the Court finds plaintiffs have failed to show subject matter jurisdiction exists over the instant action, the Court does not address herein OFM’s arguments in support of dismissal on additional grounds. 4 1 sole remaining defendant, OFM, is a foreign entity (see id. ¶ 91 (alleging OFM “has its 2 headquarters in Rome” and is recognized “under the laws of Italy”)). Plaintiffs, citing 3 Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000), argue that the presence 4 herein of the foreign plaintiffs does not defeat diversity jurisdiction. As OFM points out, 5 however, Bodner involved two separate actions, one “filed on behalf of United States 6 citizens,” and the other by “aliens who assert[ed] their claims under the Alien Tort 7 [Statute],” see id. at 121. Moreover, the district court in Bodner did not purport to exercise 8 diversity jurisdiction over either action; rather, the court found it had federal question 9 jurisdiction over the action filed by the United States citizens, see id. at 127, and jurisdiction 10 under the ATS over the action filed by the aliens, see id. at 128. Accordingly, plaintiffs have failed to show the Court has jurisdiction over the instant 11 12 action on the basis of diversity of citizenship. 13 B. Alien Tort Statute and Federal Question Jurisdiction 14 The ATS provides district courts with jurisdiction “of any civil action by an alien for a 15 tort only, committed in violation of the law of nations or a treaty of the United States.” See 16 28 U.S.C. § 1350. The federal question statute, by contrast, provides district courts with 17 jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United 18 States,” see 28 U.S.C. § 1331. Because an action for an international law tort “arises 19 under federal common law,” however, “where a case is brought by an alien for a ‘tort only,’ 20 the jurisdictional burden under [the ATS] and § 1331 is the same.” See Sarei v. Rio Tinto, 21 PLC, 487 F.3d 1193, 1201 n.5 (9th Cir. 2007), reversed in part on other grounds en banc, 22 550 F.3d 822 (9th Cir. 2008). 23 Here, plaintiffs contend they have alleged violations under both the law of nations 24 and treaties of the United States. The Court considers each of these contentions in turn. 25 1. Law of Nations 26 The ATS “is a jurisdictional statute creating no new causes of action.” See Sosa v. 27 Alvarez-Machain, 542 U.S. 692, 724 (2004). As the Supreme Court has held, when the 28 ATS was enacted by the First Congress, it applied to “the modest number of international 5 1 law violations with a potential for personal liability at the time,” specifically, “violation of safe 2 conducts, infringement of the rights of ambassadors, and piracy.” See id. Although federal 3 courts are not “precluded” from recognizing new causes of action under the statute, a 4 court’s “discretion” to do so is “restrained.” See id. In that regard, the Supreme Court has 5 required that “any claim based on the present-day law of nations [ ] rest on a norm of 6 international character accepted by the civilized world and defined with a specificity 7 comparable to the features of 18th-century paradigms [the Supreme Court] has 8 recognized.” See id. 9 Here, plaintiffs argue that OFM aided and abetted acts of “brigandage” committed by 10 the Ustasha Regime, which acts, plaintiffs contend, constitute violations of both the 18th- 11 century and present-day law of nations and are “the land-based equivalent of piracy.” (See 12 Opp’n at 18:24-19:1.) In response, OFM argues that brigandage is not a violation of the 13 law of nations cognizable under the ATS, and that, in any event, in this instance, the term 14 encompasses only conduct alleged in those claims whose dismissal herein was affirmed by 15 the Ninth Circuit. See Alperin v. Vatican Bank, 410 F.3d 532, 559 (9th Cir. 2005) 16 (denominating certain claims as “War Objectives Claims”; finding such claims “present a 17 nonjusticiable political question”). The Court, as set forth below, agrees that plaintiffs’ 18 claims of brigandage either do not constitute violations of the law of nations or are barred 19 by the Ninth Circuit’s opinion. 20 “Brigandage” has been defined as “[p]lundering and banditry carried out by bands of 21 robbers.” See Black’s Law Dictionary 219 (9th ed. 2009) (noting “[p]iracy is sometimes 22 called ‘maritime brigandage’”). Plaintiffs argue that because piracy has been recognized as 23 a violation of the law of nations, see Sosa, 542 U.S. at 715, brigandage likewise must be 24 recognized as such. “Piracy,” however, unlike “brigandage,” is more narrowly confined and 25 has been treated as a violation of the law of nations because of its interference with 26 international trade and its commission outside the territorial boundaries of any state. See 27 United States v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820) (defining piracy as “robbery 28 upon the sea”); United States v. Yousef, 327 F.3d 56, 104 (2d Cir. 2003) (noting piracy has 6 1 been “acknowledged for at least 500 years as a crime against all nations both because of 2 the threat that piracy poses to orderly transport and commerce between nations and 3 because the crime occurs statelessly on the high seas”; citing Smith).4 Beyond the above- 4 described limited context, acts of theft do not constitute violations of the law of nations, 5 even if such acts are “international in scope.” See Hamid v. Price Waterhouse, 51 F.3d 6 1411, 1418 (9th Cir. 1995) (agreeing with Second Circuit that “the Eighth Commandment 7 ‘Thou shalt not steal’” is not part of law of nations; noting “[w]hile every civilized nation 8 doubtless has this as a part of its legal system, a violation of the law of nations arises only 9 when there has been a violation by one or more individuals of those standards, rules or 10 customs (a) affecting the relationship between states or between an individual and a 11 foreign state, and (b) used by those states for their common good and/or in dealings inter 12 se”) (quoting ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)). Consequently, to 13 the extent plaintiffs’ claims of “brigandage” amount to “garden-variety” claims of receiving 14 stolen property and theft, see Alperin, 410 F.3d at 548 (characterizing plaintiffs’ remaining 15 claims as “garden-variety legal and equitable claims for the recovery of property”), they are 16 not cognizable under the ATS. 17 To the extent the terms “brigand” and “brigandage” have been characterized by 18 commentators as synonymous with “war criminal” and “illegal warfare,” plaintiffs’ reliance 19 thereon likewise is unavailing. See Willard B. Cowles, Universality of Jurisdiction over War 20 Crimes, 33 Cal. L. Rev. 177, 181, 194 (1945) (stating “[u]p to very recent times, the most 21 commonly accepted, generic term for [war criminals] was ‘brigand’”; noting “war crimes are 22 very similar to piratical acts” because “[i]n both situations there is . . . a lack of any 23 adequate judicial system operating on the spot where the crime takes place”); 2 Nuremberg 24 Trial Proceedings 148 (opening statement of Robert H. Jackson) (Nov. 21, 1945), available 25 26 27 28 4 One of the sources cited by plaintiffs confirms this analysis. See 2 John Basset Moore, A Digest of International Law 952 (1908) (stating “as the scene of the pirate’s operations is the high seas, which it is not the special right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, whom any nation may in the interest of all capture and punish”). 7 1 at http://avalon.law.yale.edu/imt/11-21-45.asp (last accessed September 11, 2009) (stating 2 “[t]he principle of individual responsibility for piracy and brigandage . . . is old and well 3 established”; noting “[t]hat is what illegal warfare is”). Plaintiffs’ claims alleging “war 4 crimes,”5 including claims of aiding and abetting the activities of members of the Ustasha 5 Regime, have been dismissed. See Alperin, 410 F.3d at 559 (listing claims alleging “war 6 crimes” and “aid[ing] and abett[ing] the activities of war criminals,” including “preserving 7 their Treasury,” among nonjusticiable “War Objectives Claims”).6 Consequently, to the 8 extent plaintiffs’ claims of brigandage amount to allegations of more than acts of receiving 9 stolen property and theft, such claims likewise fail. Plaintiffs further argue that OFM was aware of the “atrocities” of the Ustasha 10 11 Regime, and thus, OFM’s assistance to such regime constitutes a violation under a “jus 12 cogens analysis.” (See Opp’n at 21:1-6); Siderman de Blake v. Republic of Argentina, 965 13 F.2d 699, 715 (9th Cir. 1992) (holding “jus cogens embraces customary laws considered 14 binding on all nations,” regardless of whether state consents to such laws) (internal 15 quotation and citation omitted). Such argument, however, is essentially identical to 16 plaintiffs’ contention that OFM aided and abetted the Ustasha Regime’s war crimes, and, 17 consequently, it fails for the same reasons. Accordingly, plaintiffs have failed to show the Court has jurisdiction over the instant 18 19 action on the basis of alleged violations of the law of nations. 20 // 21 // 22 23 24 25 26 27 28 5 The Court notes that none of the conduct OFM is alleged to have aided and abetted, and which plaintiffs assert rises to the level of a violation of the law of nations, is alleged to have been committed other than at a time of war. 6 The Court also notes that the position plaintiffs have taken with respect to war crimes has not been entirely consistent. In their opposition to dismissal on the ground of forum non conveniens, plaintiffs state that because OFM was “not a combatant in the Second World War [and did not] engage in organized crimes against humanity,” it would not be an “appropriate defendant” in a case alleging war crimes and crimes against humanity. (See Levy Decl. ¶¶ 7-8 (stating “appropriate defendant” would be “any surviving perpetrators and the former government of the [Ustasha Regime]”).) 8 1 2. Treaties of the United States 2 Under the United States Constitution, the President “shall have Power, by and with 3 the Advice and Consent of the Senate, to make Treaties, provided two thirds of the 4 Senators present concur.” See U.S. Const. Art. II, § 2, cl. 2. “For any treaty to be 5 susceptible to judicial enforcement it must both confer individual rights and be self- 6 executing.” Cornejo v. County of San Diego, 504 F.3d 853, 856 (9th Cir. 2007). If a treaty 7 is self-executing, that is, “it has the force of domestic law without the need for implementing 8 legislation by Congress,” it nonetheless will not provide a private right of action unless the 9 language of the treaty supports such an interpretation and Congress, by its ratification, 10 thus “intended to create private rights and remedies enforceable in American courts.” See 11 id. at 856-57 (emphasis added). Moreover, the “general rule” is that “[i]nternational 12 agreements, even those directly benefitting private persons, [ ] do not create private rights 13 or provide for a private cause of action.” See id. at 859 (internal quotation and citation 14 omitted). 15 Here, plaintiffs contend they have alleged violations of two “treaties” that provide 16 private rights of action, specifically, the Multilateral Declaration on Forced Transfers of 17 Property in Enemy Controlled Territory (“London Declaration”), 3 Bevans 754 (1943), 1943 18 U.S.T. LEXIS 188, and the Multilateral Gold Policy (“Gold Declaration”), 3 Bevans 889, 9 19 Fed. Reg. 2096 (1944), 1944 U.S.T. LEXIS 149. (See Sur-Reply & Response to OSC at 20 6:15-24.) OFM argues that neither such document is a “treaty,” and that, in any event, 21 neither document creates a private right of action. As OFM points out, neither document 22 has been ratified by Congress. Assuming, arguendo, however, that the documents 23 nonetheless may be deemed to constitute “treaties” for purposes of the ATS,7 plaintiffs 24 7 25 26 27 28 The Court notes that executive agreements, i.e., agreements entered into by the Executive Branch and one or more foreign states, although not “treaties” under Article II of the Constitution, “may in appropriate circumstances have an effect similar to treaties in some areas of domestic law” and may at times be referred to as “treaties” by Congress. See Weinberger v. Rossi, 456 U.S. 25, 30-31 & n.6 (1982). Here, neither party has addressed the question of whether Congress, in enacting the ATS, intended the word “treaty” to encompass anything other than agreements meeting the requirements of Article II. 9 1 have failed to show they meet the remaining requirements set forth above. See, e.g., 2 Kwan v. United States, 272 F.3d 1360, 1363 (Fed. Cir. 2001) (finding executive agreement, 3 “even if viewed as a treaty, permit[ed] no private right fo enforcement by or on behalf of 4 [those] who may be its beneficiaries”). 5 In the London Declaration, the signatory parties issued a “formal warning” that they 6 “intend[ed] to do their utmost to defeat the methods of dispossession practiced by the 7 governments” of the Axis powers, and “reserve[d] all their rights to declare invalid” transfers 8 of property in territories under the control of such powers. See London Declaration. In the 9 Gold Declaration, the United States Secretary of the Treasury stated that “the United 10 States Government formally declares that it does not and will not recognize transference of 11 title to the looted gold which the Axis at any time holds or has disposed of in world 12 markets.” See Gold Declaration. 13 The Court first addresses whether either the London Declaration or the Gold 14 Declaration is self-executing. At the outset, the Court notes the text of the declarations 15 suggests that each constitutes no more than a statement of policy. See London 16 Declaration (issuing “formal warning to all concerned”); Gold Declaration (declaring that 17 United States Government “will not recognize the transference of title” to looted gold). 18 Indeed, Altman v. Commissioner, 20 T.C. 236 (1953), on which plaintiffs rely for the 19 proposition that the London Declaration is, according to plaintiffs, “potentially self- 20 executing” (see Sur-Reply & Response to OSC at 7:25-8:6), in fact contradicts plaintiffs’ 21 position. In particular, the Tax Court in Altman found the London Declaration to be “a 22 political declaration of intent” on the part of the Allies, which “ha[d] not been carried out by 23 the Government of Austria.” See Altman, 20 T.C. at 251; see also Medellin v. Texas, 128 24 S. Ct. 1346, 1358 (2008) (finding treaty not self-executing where treaty constituted “a 25 commitment on the part of [signatories] to take future action through their political 26 branches”) (internal quotation and citation omitted). 27 28 Even if the London Declaration and/or the Gold Declaration were deemed to be selfexecuting, however, plaintiffs have failed to show that either document creates a private 10 1 right of action. Plaintiffs first argument, that the text of the London Declaration applies to 2 both private and governmental transactions, is unpersuasive. In support of such argument, 3 plaintiffs cite to a clause providing “[t]his warning applies whether such transfers or dealings 4 have taken the form of open looting or plunder, or of transactions in apparently legal form, 5 even when they purport to be voluntarily effected.” See London Declaration. To the extent 6 plaintiffs argue the distinction noted therein, between two “forms” of acquisition, reflects an 7 intent to distinguish between, respectively, governmental and private action, plaintiffs take 8 the clause out of context. The London Declaration expressly concerns “methods of 9 dispossession practiced by the governments” of the Axis powers, not the actions of private 10 individuals. See id. (emphasis added). Moreover, plaintiffs have failed to cite any authority 11 suggesting a treaty that discusses private transactions necessarily gives rise to a private 12 right of action concerning those transactions, and indeed, there is nothing in the text of the 13 London Declaration to suggest such a right of action was intended thereby; rather, the 14 declaration makes clear that it is solely a “warning.” See id. 15 16 17 18 19 Next, plaintiffs rely on a 1949 letter in which Jack B. Tate, Acting Legal Adviser, Department of State, wrote: The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in Germany, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials. 20 (See Sur-Reply & Response to OSC App’x III (“Tate Letter”) § 3.) Plaintiffs note that, in 21 reaching this conclusion, Tate cited to the London Declaration and the Gold Declaration. 22 (See id. § 1(a)-(b) (listing, inter alia, London Declaration and Gold Declaration as instances 23 in which United States Government has “opposed the forcible acts of dispossession . . . 24 practiced by the Germans”).) 25 The Tate Letter, however, contains no language suggesting that any of the 26 documents referenced therein creates a private right of action. Rather, the letter was 27 written at the request of counsel for a party engaged in a federal lawsuit wherein the 28 Second Circuit had expressed an “inability” to “pass on the validity of acts of officials of the 11 1 German government,” see Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart- 2 Maatschappij, 210 F.2d 375, 375-76 (2d Cir. 2004); (Tate Letter at 1), and appears to 3 express the Executive’s view that such case need not be dismissed on grounds of 4 sovereign immunity or under the act of state doctrine, see, e.g., Republic of Austria v. 5 Altmann, 541 U.S. 677, 688 (2007) (noting, under foreign sovereign immunity cases 6 decided prior to passage of Foreign Sovereign Immunities Act (“FSIA”) in 1976, members 7 of international community, “as a matter of comity,” had “implicitly agreed to waive the 8 exercise of jurisdiction over other sovereigns in certain classes of cases”); Liu v. Republic 9 of China, 892 F.2d 1419, 1431-32 (9th Cir. 1989) (holding, under act of state doctrine, “the 10 court of one country will not sit in judgment on the acts of the government of another, done 11 within its own territory”) (internal quotation and citation omitted). Neither of these doctrines 12 is at issue in the instant action, however, as plaintiffs do not contend OFM is a “sovereign,” 13 see Altmann, 541 U.S. at 688, or that its actions are “acts of [a] government,” see Liu, 892 14 F.2d at 1432. 15 16 Accordingly, plaintiffs have failed to show the Court has jurisdiction over the instant action on the basis of alleged violations of any treaty of the United States. CONCLUSION 17 18 In sum, for the reasons stated above, plaintiffs have failed to demonstrate the Court 19 has subject matter jurisdiction over the instant action under 28 U.S.C. §§ 1331, 1332, or 20 1350, and, accordingly, OFM’s motion is hereby GRANTED, and the instant action is 21 hereby DISMISSED without prejudice for lack of subject matter jurisdiction. 22 IT IS SO ORDERED. 23 24 Dated: September 11, 2009 MAXINE M. CHESNEY United States District Judge 25 26 27 28 12
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