Class action suit against the Vatican Bank and others
Encyclopedia
Alperin v. Vatican Bank is a class action
suit by Holocaust survivors against the Vatican Bank ("Institute for Works of Religion") and 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 has attracted attention as a precedent at the intersection of the Alien Tort Claims Act
(ATCA) and the Foreign Sovereign Immunities Act
(FSIA).
The complaint against the Vatican Bank was dismissed in 2007 on the basis of sovereign immunity
, but the case against the Franciscan Order continues as of 2009. According to Hart, "the case is extremely complicated and potentially massive, considering the large class spread across many countries".
The Ustaše
hiding in Pontifical Croatian College of St. Jerome
(the Croatian Seminary near the Vatican) brought a large amount of looted gold with them; this was later moved to other Vatican extraterritorial property and/or the Vatican Bank
. Although this gold would be worth hundreds of thousands of 2008 US dollars, it constituted only a small percentage of the gold looted during World War II
, mostly by the Nazis. According to Phayer, "top Vatican personnel would have known the whereabouts of the gold".
The lawsuit was made possible by a 1997 executive order of Bill Clinton that directed all branches of the US government to open their World War II
records to scrutiny. The order came in the aftermath of evidence that Swiss banks were destroying evidence of deposit records by Jews
and "pressured other countries to follow the U.S. example". Fourteen European nations, Canada, and Argentina followed suit, but Vatican City
did not, despite U.S. pressure. 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.
issues were named as plaintiffs. 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. However, the total potential class could include "over 300,000 former slave and forced laborers, prisoners, concentration camp, and ghetto survivors".
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
. 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 charged with laundering and convering "the Ustaša treasury, making deposits in Europe and North and South American, [and] distributing the funds to exiled Ustaša leaders including Pavelić".
A principal piece of evidence against the Vatican is the "Bigelow dispatch", a October 16, 1946 dispatch from Emerson Bigelow in Rome to Harold Glasser
, the director of monetary research for the U.S. Treasury Department. Former OSS agent William Gowen has also given deposition
as an expert witness
that in 1946 Colonel Ivan Babić
transported 10 truckloads of gold from Switzerland to the Pontifical College.
The plaintiffs seek an accounting and restitution of the Ustaše Treasury that, according to the US State Department http://www.state.gov/www/regions/eur/rpt_9806_ng_ustasha.pdf was illicitly transferred 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 principle movers were allegedly Fr. Krunoslav Draganovic
, Fr. Dominik Mandic
OFM, and the war criminal Ante Pavelić
.
, but not Vatican City
(as naming the Vatican City State could have caused the suit to be dismissed on the grounds of sovereign immunity
). 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. 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". The Vatican Bank and Order of Friars Minor filed separate motions to dismiss.
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'". The defense did argue that there was "no evidentiary connection between the losses of the plaintiffs and the gold deposited in the Vatican bank".
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:
Finally, the defendants argued that the plaintiffs did not have standing
because the Vatican was only a third party to the plaintiff's injury.
in San Francisco in 1999. The parties agreed in the district court to limit their initial arguments to the question of whether the case constituted a political question
. The district judge dismissed the case in 2003 on the grounds that it constituted a political question. In a separate opinion, the district court dismissed the claims against the Croatian Liberation Movement
on the grounds of lack of personal jurisdiction.
reinstated some of the plaintiffs claims in 2005, and the Supreme Court
declined in January 2006 to grant certiorari
to review that ruling. 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.
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". 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. 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".
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. 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. 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."
. On December 27, 2007, Judge Maxine M. Chesney
granted the Vatican Banks motion to dismiss the fourth amended complaint; this effectively ended the case against the Vatican Bank on the basis of sovereign immunity
. 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. The sixth amendment complaint has been filed, naming the Franciscan Order as a defendant, but no longer the Vatican Bank.http://vaticanbankclaims.com/six.pdf 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 have appealed this to the Ninth Circuit on grounds that the Vatican Bank is engages in commercial activity in the United States.
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.http://www.scribd.com/doc/33778229/ECB-7-1-10
doctrine was an extension of the precedent in Baker v. Carr
. 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". 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."
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). 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
. It has also been cited as one of several "recent decisions applying, interpreting, and sometimes struggling with the Sosa decision's ATS approach
". 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".
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." The precedent from the 2005 appellate court ruling has already been applied in Mujica v. Occidental Petroleum Corporation.
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
suit by Holocaust survivors against the Vatican Bank ("Institute for Works of Religion") and Franciscan Order
Franciscan
Most Franciscans are members of Roman Catholic religious orders founded by Saint Francis of Assisi. Besides Roman Catholic communities, there are also Old Catholic, Anglican, Lutheran, ecumenical and Non-denominational Franciscan communities....
("Order of Friars Minor") filed in San Francisco, California
San Francisco, California
San Francisco , officially the City and County of San Francisco, is the financial, cultural, and transportation center of the San Francisco Bay Area, a region of 7.15 million people which includes San Jose and Oakland...
on November 15, 1999. The case was initially dismissed as a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
by the District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
in 2003, but was reinstated in part by the Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
in 2005. That ruling has attracted attention as a precedent at the intersection of the Alien Tort Claims Act
Alien Tort Statute
The Alien Tort Statute ) is a section of the United States Code that reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute is notable for allowing...
(ATCA) and the Foreign Sovereign Immunities Act
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act of 1976 is a United States law, codified at Title 28, §§ 1330, 1332, 1391, 1441, and 1602-1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation may be sued in U.S. courts—federal or state...
(FSIA).
The complaint against the Vatican Bank was dismissed in 2007 on the basis of sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
, but the case against the Franciscan Order continues as of 2009. According to Hart, "the case is extremely complicated and potentially massive, considering the large class spread across many countries".
Historical context
The Ustaše
Ustaše
The Ustaša - Croatian Revolutionary Movement was a Croatian fascist anti-Yugoslav separatist movement. The ideology of the movement was a blend of fascism, Nazism, and Croatian nationalism. The Ustaše supported the creation of a Greater Croatia that would span to the River Drina and to the border...
hiding in Pontifical Croatian College of St. Jerome
Pontifical Croatian College of St. Jerome
The Pontifical Croatian College of St. Jerome, in Italian the Pontificio Collegio Croato Di San Girolamo a Roma, is a Roman Catholic college, church and a society in the city of Rome intended for the schooling of Croatian clerics. It is named after Saint Jerome...
(the Croatian Seminary near the Vatican) brought a large amount of looted gold with them; this was later moved to other Vatican extraterritorial property and/or the Vatican Bank
Vatican Bank
The Institute for Works of Religion , commonly known as the Vatican Bank, is a privately held institute located inside Vatican City run by a professional bank CEO who reports directly to a committee of cardinals, and ultimately to the Pope...
. Although this gold would be worth hundreds of thousands of 2008 US dollars, it constituted only a small percentage of the gold looted during World War II
Nazi gold
Nazi gold is the gold transferred by Nazi Germany to overseas banks during the Second World War. The regime executed a policy of looting the assets of its victims to finance the war, collecting the looted assets in central depositories. The occasional transfer of gold in return for currency took...
, mostly by the Nazis. According to Phayer, "top Vatican personnel would have known the whereabouts of the gold".
The lawsuit was made possible by a 1997 executive order of Bill Clinton that directed all branches of the US government to open their World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
records to scrutiny. The order came in the aftermath of evidence that Swiss banks were destroying evidence of deposit records by Jews
World Jewish Congress lawsuit against Swiss banks
The World Jewish Congress lawsuit against Swiss banks was launched to retrieve deposits made by victims of Nazi persecution during and prior to World War II.-Negotiations:...
and "pressured other countries to follow the U.S. example". Fourteen European nations, Canada, and Argentina followed suit, but Vatican City
Vatican City
Vatican City , or Vatican City State, in Italian officially Stato della Città del Vaticano , which translates literally as State of the City of the Vatican, is a landlocked sovereign city-state whose territory consists of a walled enclave within the city of Rome, Italy. It has an area of...
did not, despite U.S. pressure. 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
Tripartite Commission for the Restitution of Monetary Gold
The Tripartite Commission for the Restitution of Monetary Gold, also known as the Tripartite Gold Commission, was a panel established in September 1946 by the United Kingdom, United States and France to recover gold stolen by Nazi Germany from other nations and eventually return it to the rightful...
before it disbanded, although Yugoslavia was among the recipients of restitution.
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 were victims of personal or property crimes committed by the Ustaše. Four organizations that represent holocaust survivors or human rightsHuman rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
issues were named as plaintiffs. 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. However, the total potential class could include "over 300,000 former slave and forced laborers, prisoners, concentration camp, and ghetto survivors".
Causes of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
included "conversion, unjust enrichment, restitution, the right to an accounting, human rights violations and violations of international law". Subject-matter jurisdiction
Subject-matter jurisdiction
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....
was asserted under federal law, California state law, international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. 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 charged with laundering and convering "the Ustaša treasury, making deposits in Europe and North and South American, [and] distributing the funds to exiled Ustaša leaders including Pavelić".
A principal piece of evidence against the Vatican is the "Bigelow dispatch", a October 16, 1946 dispatch from Emerson Bigelow in Rome to Harold Glasser
Harold Glasser
Harold Glasser , was an economist in the United States Department of the Treasury and spokesman on the affairs of the United Nations Relief and Rehabilitation Administration 'throughout its whole life' and he had a 'predominant voice' in determining which countries should receive aid...
, the director of monetary research for the U.S. Treasury Department. Former OSS agent William Gowen has also given deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
as an expert witness
Expert witness
An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
that in 1946 Colonel Ivan Babić
Ivan Babic
Ivan Babić is a Serbian professional football player who currently plays for Serbian SuperLiga club FK Novi Pazar.-Career:...
transported 10 truckloads of gold from Switzerland to the Pontifical College.
The plaintiffs seek an accounting and restitution of the Ustaše Treasury that, according to the US State Department http://www.state.gov/www/regions/eur/rpt_9806_ng_ustasha.pdf was illicitly transferred 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
Ratlines (history)
Ratlines were a system of escape routes for Nazis and other fascists fleeing Europe at the end of World War II. These escape routes mainly led toward havens in South America, particularly Argentina, Paraguay, Brazil, Uruguay, and Chile. Other destinations included the United States and perhaps...
. The principle movers were allegedly Fr. Krunoslav Draganovic
Krunoslav Draganovic
Krunoslav Stjepan Draganović was a Croatian Roman Catholic priest and historian who is accused as being one of the main organisers of the ratlines which aided the escape of Nazi war criminals from Europe after World War II.-Biography:Draganović was from Travnik...
, Fr. Dominik Mandic
Dominik Mandic
Dominik Mandić was a Bosnian Croat historian and politician, a member of the Franciscan Order. His history books are essential reading for the history of medieval Bosnia and Herzegovina.-Life:...
OFM, and the war criminal Ante Pavelić
Ante Pavelic
Ante Pavelić was a Croatian fascist leader, revolutionary, and politician. He ruled as Poglavnik or head, of the Independent State of Croatia , a World War II puppet state of Nazi Germany in Axis-occupied Yugoslavia...
.
Defendants
The named defendants included the Vatican BankVatican Bank
The Institute for Works of Religion , commonly known as the Vatican Bank, is a privately held institute located inside Vatican City run by a professional bank CEO who reports directly to a committee of cardinals, and ultimately to the Pope...
, but not Vatican City
Vatican City
Vatican City , or Vatican City State, in Italian officially Stato della Città del Vaticano , which translates literally as State of the City of the Vatican, is a landlocked sovereign city-state whose territory consists of a walled enclave within the city of Rome, Italy. It has an area of...
(as naming the Vatican City State could have caused the suit to be dismissed on the grounds of sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
). 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. The other named defendants were the Order of Friars Minor ("Franciscans"), the Croatian Liberation Movement
Croatian Liberation Movement
The Croatian Liberation Movement is a right-wing party originally formed by Croatian emigrants and headed by former leaders of the Axis allied Independent State of Croatia in 1956.It was headed by Ante Pavelić, former leader of the NDH...
, as well as "other unknown Catholic religious organizations and known and unknown banking institutions from a variety of countries". The Vatican Bank and Order of Friars Minor filed separate motions to dismiss.
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'". The defense did argue that there was "no evidentiary connection between the losses of the plaintiffs and the gold deposited in the Vatican bank".
The defendants also argued that, under the Foreign Sovereign Immunities Act
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act of 1976 is a United States law, codified at Title 28, §§ 1330, 1332, 1391, 1441, and 1602-1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation may be sued in U.S. courts—federal or state...
(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".
Finally, the defendants argued that the plaintiffs did not have standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
because the Vatican was only a third party to the plaintiff's injury.
First District Court ruling (2003)
The original lawsuit was filed in the District Court for the Northern District of CaliforniaUnited States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
in San Francisco in 1999. The parties agreed in the district court to limit their initial arguments to the question of whether the case constituted a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
. The district judge dismissed the case in 2003 on the grounds that it constituted a political question. In a separate opinion, the district court dismissed the claims against the Croatian Liberation Movement
Croatian Liberation Movement
The Croatian Liberation Movement is a right-wing party originally formed by Croatian emigrants and headed by former leaders of the Axis allied Independent State of Croatia in 1956.It was headed by Ante Pavelić, former leader of the NDH...
on the grounds of lack of personal jurisdiction.
First Ninth Circuit appeal (2005)
The Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
reinstated some of the plaintiffs claims in 2005, and the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
declined in January 2006 to grant certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to review that ruling. 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.
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". 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. 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".
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
Croatian Liberation Movement
The Croatian Liberation Movement is a right-wing party originally formed by Croatian emigrants and headed by former leaders of the Axis allied Independent State of Croatia in 1956.It was headed by Ante Pavelić, former leader of the NDH...
and the claim that the Vatican bank supported the Ustaše in committing genocide and other war crimes. The majority opinion was written by Judge M. Margaret McKeown
M. Margaret McKeown
Mary Margaret McKeown, usually styled as M. Margaret McKeown is a federal judge on the United States Court of Appeals for the Ninth Circuit, and is based in San Diego, California. McKeown, a native of Casper, Wyoming, has served on the Ninth Circuit since her confirmation in 1998...
, with Senior Judge Milton Irving Shadur
Milton Irving Shadur
Milton Irving Shadur is a United States federal judge.Born in St. Paul, Minnesota, Shadur received a B.S. from the University of Chicago in 1943 and was a Lieutenant in the United States Navy during World War II, from 1943 to 1946. He then received a J.D...
concurring. Judge Stephen S. Trott
Stephen S. Trott
Stephen S. Trott is a Senior Circuit Judge for the United States Court of Appeals for the Ninth Circuit. Trott was nominated for this position by President Ronald Reagan on August 9, 1987 after the seat held by Joseph Tyree Sneed, III became vacant...
dissented in part, arguing that the district court had correctly dismissed the case. 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."
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. Oral argument is available from the 9th Circuit website. http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000004659 The case was dismissed on December 28, 2009. Plaintiffs have indicated they may appeal further.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 ProcedureFederal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
. On December 27, 2007, Judge Maxine M. Chesney
Maxine M. Chesney
Maxine Mackler Chesney is a United States federal judge.-Early life and education:Chesney was born on October 29, 1942 in San Francisco, California. Chesney received a B.A. from the University of California, Berkeley in 1964 and a J.D. from the University of California, Berkeley, Boalt Hall School...
granted the Vatican Banks motion to dismiss the fourth amended complaint; this effectively ended the case against the Vatican Bank on the basis of sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
. 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. The sixth amendment complaint has been filed, naming the Franciscan Order as a defendant, but no longer the Vatican Bank.http://vaticanbankclaims.com/six.pdf 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 have appealed this to the Ninth Circuit on grounds that the Vatican Bank is engages in commercial activity in the United States.
Complaint to European Central Bank (2010)
On July 1, 2010, the Plaintiffs submitted a request that the European Central BankEuropean Central Bank
The European Central Bank is the institution of the European Union that administers the monetary policy of the 17 EU Eurozone member states. It is thus one of the world's most important central banks. The bank was established by the Treaty of Amsterdam in 1998, and is headquartered in Frankfurt,...
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.http://www.scribd.com/doc/33778229/ECB-7-1-10
Legal analysis
The initial dismissal of the case on the political questionPolitical question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
doctrine was an extension of the precedent in Baker v. Carr
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...
. 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". 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."
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). It has been cited as an example of an Alien Tort Claims Act
Alien Tort Statute
The Alien Tort Statute ) is a section of the United States Code that reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute is notable for allowing...
(ATCA) case where the courts did not require the exhaustion of foreign legal remedies
Exhaustion of remedies
The doctrine of exhaustion of remedies prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted in the original one. The doctrine was originally created by case law based on the principles of comity.In the United States, exhaustion...
. It has also been cited as one of several "recent decisions applying, interpreting, and sometimes struggling with the Sosa decision's ATS approach
Sosa v. Alvarez-Machain
Sosa v. Alvarez-Machain, 542 U.S. 692 was a notable case decided by the Supreme Court of the United States involving the Alien Tort Claims Act.-Facts:...
". 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".
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." The precedent from the 2005 appellate court ruling has already been applied in Mujica v. Occidental Petroleum Corporation.
External links
- Plaintiff's website with various court documents
- Defendant documents at WikileaksWikileaksWikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
- "The Fate of the Ustasha Wartime treasury" (US State Department report)