Alperin v. Vatican Bank

Alperin v. Vatican Bank was an unsuccessful class action suit by Holocaust survivors brought against the Vatican Bank ("Institute for the Works of Religion" or "IOR") and the Franciscan Order ("Order of Friars Minor") filed in San Francisco, California, on November 15, 1999. The case was initially dismissed as a political question by the District Court for the Northern District of California in 2003, but was reinstated in part by the Court of Appeals for the Ninth Circuit in 2005. That ruling attracted attention as a precedent at the intersection of the Alien Tort Claims Act (ATCA) and the Foreign Sovereign Immunities Act (FSIA).

Alperin v. Vatican Bank
CourtUnited States Court of Appeals for the Ninth Circuit
Full case nameAlperin, et al. v. Vatican Bank
Citation(s)104 F.3d 1086 (9th Cir. 1997), 284 F.3d 1114 (9th Cir. 2002), 266 F.3d 1155 (9th Cir. 2001), 332 F.3d 679 (D.C. Cir. 2003)
Transcript(s)
Keywords
Holocaust survivors, political question

Part of the complaint against the IOR was dismissed in 2007 on the basis of sovereign immunity, and the remainder of the claim against that defendant was dismissed on the ground that the property claim had no nexus to the United States, a decision confirmed in February 2010 by the Ninth Circuit. The case against the Franciscan Order, who by then were the sole defendants, ended in March 2011 when the Ninth Circuit affirmed the district court's judgment dismissing the claim, and the case was not appealed further. No part of the claim, therefore, ever came to trial and none of the plaintiffs' allegations of fact were ever established in Court.

Historical context
The Pontifical Croatian College of St. Jerome in Rome
Main articles: Nazi gold and Catholic clergy involvement with the Ustaše

The factual background as alleged in the claim was that Ustaše hiding in the Pontifical Croatian College of St. Jerome (the Croatian Seminary near the Vatican) brought a large amount of looted gold with them and that it was later moved to other Vatican extraterritorial property and/or the Vatican Bank.[1][2] Although this gold would be worth hundreds of thousands of 2008 US dollars, it allegedly constituted only a small percentage of the gold looted during World War II, mostly by the Nazis.[2] According to Phayer, "top Vatican personnel would have known the whereabouts of the gold", but he gives no evidence that they did, nor does he name any.[2]

The lawsuit was made possible by a 1997 executive order of U.S. President Bill Clinton that directed all branches of the US government to open their World War II records to scrutiny.[3] The order came in the aftermath of evidence that Swiss banks were destroying evidence of deposit records by Jews.[3] Fourteen European nations, Canada, and Argentina followed suit, but Vatican City did not.[3] Much of the evidence that has come to light since the executive order was not available to the Tripartite Commission for the Restitution of Monetary Gold before it disbanded, although Yugoslavia was among the recipients of restitution.[4]

Arguments

Plaintiffs

The class action was brought on behalf of "all Serbs, Jews, and former Soviet Union citizens (and their heirs and beneficiaries), who suffered" at the hands of the Ustaše. The named plaintiffs claimed to be victims of personal or property crimes committed by the Ustaše. Four organizations that represent holocaust survivors or human rights issues were named as plaintiffs.[5] Surviving victims of the Ustaše and their next of kin living in California brought a class action suit against the Vatican bank and others in US federal court, Alperin v. Vatican Bank.[2] However, the total potential class, if the Court had recognised the claim, would have included "over 300,000 former slave and forced laborers, prisoners, concentration camp, and ghetto survivors".[5]

Causes of action included "conversion, unjust enrichment, restitution, the right to an accounting, human rights violations and violations of international law". Subject-matter jurisdiction was asserted under federal law, California state law, international law, and common law.[5] According to plaintiffs, defendants "accepted, concealed, hypothecated, laundered, retained, converted and profited from assets looted by the Ustasha Regime during April 1941 through May 1945 and deposited in, or converted, concealed, hypothecated, trafficked, credited, pledged, exchanged, laundered or liquidated through, the IOR, and OFM after the demise of the NDH-Independent State of Croatia in May 1945. 2007 U.S. Dist. LEXIS 95529, ND CA 2007. Specifically, the Vatican bank was said to have laundered and converted "the Ustaša treasury, making deposits in Europe and North and South American, [and] distributing the funds to exiled Ustaša leaders including Pavelić".[3] Since the case was dismissed at a preliminary stage, these claims were never proved.

A principal piece of evidence against the Vatican was to have been the "Bigelow dispatch", an October 16, 1946 dispatch from Emerson Bigelow in Rome to Harold Glasser, the director of monetary research for the U.S. Treasury Department.[3] Former OSS agent William Gowen also made a deposition as an expert witness that in 1946 Colonel Ivan Babić transported 10 truckloads of gold from Switzerland to the Pontifical College.[6]

The plaintiffs sought an accounting and restitution of the Ustaše Treasury that, according to the US State Department,[7] had allegedly been transferred illicitly to the Vatican, the Franciscan Order and other banks after the end of the war, in order to further the goals of the Ustaše regime in exile and fund the Vatican ratline. The principal movers were allegedly Fr. Krunoslav Draganovic, Fr. Dominik Mandic OFM, and the war criminal Ante Pavelić.

Defendants

The named defendants included the Vatican Bank, but not Vatican City (as naming the Vatican City State could have caused the suit to be dismissed on the grounds of sovereign immunity).[5] The Ninth Circuit accepted for the purposes of the motion to dismiss the plaintiffs' argument that the Vatican City and the Vatican Bank are separate institutions.[5] The other named defendants were the Order of Friars Minor ("Franciscans"), the Croatian Liberation Movement, as well as "other unknown Catholic religious organizations and known and unknown banking institutions from a variety of countries".[5] The Vatican Bank and Order of Friars Minor filed separate motions to dismiss.[5]

The Vatican's lawyers did not contest the allegation that a large shipment of gold arrived by truck in Rome in 1946, although they did assert that the plaintiffs had "put forward conclusory 'facts'".[8] The defense did argue that there was "no evidentiary connection between the losses of the plaintiffs and the gold deposited in the Vatican bank".[9]

The defendants also argued that, under the Foreign Sovereign Immunities Act (Reagan recognized Vatican sovereignty in 1984), they had no obligation to return the looted Ustaše gold to Yugoslavia in 1946 because the country was ruled by a hostile Communist regime, saying:

The decision by a sovereign instrumentality to give funds to a foreign anti-Communist political movement rather than to a Communist regime, at the time where the Cold War was beginning in earnest in Europe, is not a "commercial" act; it is jure imperii, a deeply sovereign act.[8]

Finally, the defendants argued that the plaintiffs did not have standing because the Vatican was only a third party to the plaintiff's injury.[1]

Disposition

First District Court ruling (2003)

The original lawsuit was filed in the District Court for the Northern District of California in San Francisco in 1999.[10][11] The parties agreed in the district court to limit their initial arguments to the question of whether the case constituted a political question.[5] The district judge dismissed the case in 2003 on the grounds that it constituted a political question.[10][12] In a separate opinion, the district court dismissed the claims against the Croatian Liberation Movement on the grounds of lack of personal jurisdiction.[5]

First Ninth Circuit appeal (2005)

The Court of Appeals for the Ninth Circuit reinstated some of the plaintiffs claims in 2005,[13] and the Supreme Court declined in January 2006 to grant certiorari to review that ruling.[10][14][15] The Ninth Circuit held that the property claims were not political questions, while it agreed that the "war objectives claims" (including human rights violations, violations of international law, and slave labor) were political questions.[5][16]

The Ninth Circuit wrote that because the case "touched on foreign relations and potentially controversial political issues, it [was] tempting to jump to the conclusion that such claims are barred by the political question doctrine" but that the court should "scrutinize each claim individually" rather than "abdicate the court's Article III responsibility".[17] The Ninth Circuit also determined that the U.S. government had not yet taken a position on the issue and that it was not the subject of a treaty or executive agreement.[17] The Ninth Circuit distinguished the case from Kadic v. Karadzic because "the claims in Kadic focused on the acts of a single individual during a localized conflict rather than asking the court to undertake the complex calculus of assigning fault for actions taken by a foreign regime during the morass of a world war".[17]

Although the Ninth Circuit allowed the plaintiffs to proceed with their claims of conversion, unjust enrichment, restitution, and an accounting against the Vatican Bank, it agreed to the dismissal of the claims against the Croatian Liberation Movement and the claim that the Vatican Bank supported the Ustaše in committing genocide and other war crimes.[18] The majority opinion was written by Judge M. Margaret McKeown, with Senior Judge Milton Irving Shadur concurring. Judge Stephen S. Trott dissented in part, arguing that the district court had correctly dismissed the case.[18] Trott wrote: "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."[19]

Second Ninth Circuit appeal (2009)

The Second Ninth Circuit Appeal on the issue of sovereign immunity of the Vatican Bank was heard on December 10, 2009, in San Francisco.[20] The case was dismissed on December 28, 2009.[21] Plaintiffs have indicated they may appeal further.[22]

Later District Court rulings (2006–2009)

On June 15, 2006, Judge Elizabeth Laporte of the Northern District of California denied without prejudice the plaintiff's motion for jurisdictional discovery and granted in part the plaintiffs motion to provide materials pursuant to Federal Rules of Civil Procedure.[23] On December 27, 2007, Judge Maxine M. Chesney granted the Vatican Bank's motion to dismiss the fourth amended complaint; this effectively ended the case against the Vatican Bank on the basis of sovereign immunity.[24] On April 14, 2009, Judge Chesney granted a plaintiff's motion for leave to file a sixth amended complaint no later than May 1, 2009.[25] The sixth amended complaint was filed, naming the Franciscan Order as a defendant, and removing the Vatican Bank.[26] On September 11, 2009, the District court dismissed the case against the Franciscans without prejudice on grounds of lack of federal jurisdiction and denied Plaintiffs' motion to amend the complaint on November 13, 2009. Plaintiffs appealed this to the Ninth Circuit on grounds that the Vatican Bank engages in commercial activity in the United States but lost this appeal.

Complaint to European Central Bank (2010)

On July 1, 2010, the Plaintiffs submitted a request that the European Central Bank initiate an investigation of Vatican Bank money laundering and dealing in Nazi gold. They based this on Article 8 of The Monetary Agreement between the European Union and The Vatican City State which forbids Euro issuing entities from money laundering.[27]

The initial dismissal of the case on the political question doctrine was an extension of the precedent in Baker v. Carr.[28] According to Prof. Gwynne Skinner, "most of the claims arising out of the Holocaust have been dismissed based on this doctrine either because decisions were already made regarding reparations, or because the Allied forces had already made decisions about who would be prosecuted for the various crimes committed during the Holocaust".[29] According to Prof. Hannibal Travis: "Initially, U.S. courts dismissed claims by Holocaust survivors on the grounds that international law only gave rise to claims between states and was not self-executing in the absence of implementing legislation in Congress. This erroneous interpretation of §1350 was corrected within a few years, and since 1980, the U.S. federal courts have exercised universal jurisdiction in a nearly unbroken line of cases involving offenses properly alleged to have been committed elsewhere in violation of international law."[30]

The case has been compared to several other 2003 lawsuits against private actors for wrongs committed during World War II, such as Anderman v. Federal Republic of Austria (also determined to be a political question).[31] It has been cited as an example of an Alien Tort Claims Act (ATCA) case where the courts did not require the exhaustion of foreign legal remedies.[32] The Ninth Circuit decision has been criticized on the grounds that: "while the court's demarcation between property claims and war objectives claims may be a sound analytical method for addressing political question doctrine issues, the slave labor claims should not have been excluded from the scope of the property claims".[5]

The plaintiffs attempted to coordinate with pending Catholic sex abuse cases to "avoid divergent findings on the issue of Vatican amenability to suit in the United States."[33] The precedent from the 2005 appellate court ruling has already been applied in Mujica v. Occidental Petroleum Corporation.[34]

See also

Notes
  1. Phayer, 2008, p. 219.
  2. Phayer, 2008, p. 208.
  3. Phayer, 2008, p. 209.
  4. Phayer, 2008, p. 214, 217.
  5. Hart, Reuben (2006). "Property, War Objectives, and Slave Labor Claims: The Ninth Circuit's Political Question Analysis in Alperin v. Vatican Bank" (PDF). Golden Gate University Law Review. 36 (1).
  6. Phayer, 2008, p. 210.
  7. United States Department of State
  8. Phayer, 2008, p. 217.
  9. Phayer, 2008, pp. 217-218.
  10. James Vicini. 2006, January 17. "Court won't review Vatican Bank Holocaust suit". Reuters.
  11. 99-C-4941 (N.D. Cal. filed Nov. 15, 1999).
  12. WL 21303209 (N.D. Cal. 2003).
  13. 410 F.3d 532, 544 (9th Cir. 2005).
  14. Order of Friars Minor v. Alperin, 126 S. Ct. 1141, 163 L. Ed. 2d 1000, 2006 U.S. LEXIS 774 (U.S., 2006)
  15. Istituto per le Opere di Religione v. Alperin, 126 S. Ct. 1160, 163 L. Ed. 2d 1000, 2006 U.S. LEXIS 775 (U.S., 2006).
  16. Roger P. Alford. 2006. "Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy". 67 Ohio St. L.J. 1339.
  17. Symeon C. Symeonides. 2005. "Choice of Law in the American Courts in 2005: Nineteenth Annual Survey". 53 Am. J. Comp. L. 559.
  18. John R. Crook. 2005. "CONTEMPORARY PRACTICE OF THE UNITED STATES RELATING TO INTERNATIONAL LAW: STATE JURISDICTION AND IMMUNITIES: Ninth Circuit Allows Some Claims Alleging Vatican Bank Complicity with World War II Ustasha Regime to Proceed". 99 A.J.I.L. 701.
  19. Hannah L. Buxbaum. 2006. "Transnational Regulatory Litigation". 46 Va. J. Int'l L. 251.
  20. Oral argument
  21. Sud odbio tužbu preživjelih iz holokausta u NDH protiv Vatikanske banke Archived March 28, 2013, at the Wayback Machine, Slobodna Dalmacija
  22. "Nazi-loot suit against Vatican dismissed". December 31, 2009. Retrieved December 10, 2012.
  23. Alperin v. Vatican Bank, 2006 U.S. Dist. LEXIS 42902 (N.D. Cal., June 15, 2006).
  24. Alperin v. Vatican Bank, 2007 U.S. Dist. LEXIS 95529 (N.D. Cal., Dec. 27, 2007).
  25. Alperin v. Vatican Bank, 2009 U.S. Dist. LEXIS 36270 (N.D. Cal., Apr. 14, 2009).
  26. http://vaticanbankclaims.com/six.pdf
  27. https://www.scribd.com/doc/33778229/ECB-7-1-10
  28. 369 U.S. 186, 210-11 (1962).
  29. Gwynne Skinner. 2008. "Nuremberg's Legacy Continues: The Nuremberg Trials' Influence on Human Rights Litigation in U.S. Courts under the Alien Tort Statute". 71 Alb. L. Rev. 321.
  30. Hannibal Travis. 2008. "Genocide in Sudan: The Role of Oil Exploration and the Entitlement of Victims to Reparations". 25 Ariz. J. Int'l & Comp. Law 1.
  31. Symeon C. Symeonides. 2004. "Choice of Law in the American Courts in 2003: Seventeenth Annual Survey". 52 Am. J. Comp. L. 9.
  32. Elise Catera. 2008. "ATCA: Closing the Gap in Corporate Liability for Environmental War Crimes". 33 Brooklyn J. Int'l L. 629.
  33. William Brian Mason. 2008. "A New Call for Reform: Sex Abuse and the Foreign Sovereign Immunities Act". 33 Brooklyn J. Int'l L. 655.
  34. Amy Apollo. 2006. "Mujica v. Occidental Petroleum Corporation: A Case Study of the Role of the Executive Branch in International Human Rights Litigation". 37 Rutgers L. J. 855.

References
  • Phayer, Michael. 2008. Pius XII, The Holocaust, and the Cold War. Indianapolis: Indiana University Press. ISBN 978-0-253-34930-9.
  • Vatican Bank Claims website with the Plaintiffs' 6th amended class action Complaint filed 14 April 2009 (subsequently dismissed). No other trial documents are available on that site which (so far as concerns the viability of the claim) asserts via a "Claim Form" link only that "The Court has not yet certified this case as a class action, no claims may be accepted". The claim, however, is no longer pending – a fact not mentioned on the website.
  • Defendant documents at WikiLeaks
  • "The Fate of the Ustasha Wartime treasury" (US State Department report)
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