Federal Republic of Germany v. Philipp
Oral argument transcript · No. 19-351 · October Term 2020 · argued December 7, 2020 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Jonathan M. Freiman, New Haven, Connecticut, for the petitioner
- Edwin S. Kneedler, Deputy Solicitor General, amicus curiae supporting the petitioner
- Nicholas M. O'Donnell, Boston, Massachusetts, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument next in Case 19-351, the Federal Republic of Germany versus Philipp. Mr. Freiman. ORAL ARGUMENT OF JONATHAN M. FREIMAN ON BEHALF OF THE PETITIONERS
Jonathan M. Freiman: Thank you, Mr. Chief Justice, and may it please the Court: When Congress enacted the expropriation exception in 1976, Communist states had been engaging in widespread expropriation of property from American nationals and denying that the international law of takings required them to pay compensation. Congress enacted a series of targeted measures, including the expropriation exception, to counter these states' rejections of the law of takings. The exception lets U.S. courts hear claims against foreign sovereigns when "rights in property taken in violation of international law" are at issue. That language invoked the established international law doctrine known as the law of 1 takings. As the Restatement and other sources show, the doctrine addresses only nations' takings of foreigners' property. And by referring to it, Congress incorporated its limits into the expropriation exception. The plaintiffs ignore this context, trying to turn this modest exception into a novel tool for suing foreign sovereigns for human rights and law of war violations occurring in their own countries. That reading should be rejected for three reasons. First, it ignores the established meaning of the exception's words when enacted in 1976. Second, it creates a jurisdictional mismatch with the exception's text. The exception focuses on rights in property, giving jurisdiction over property claims. It would be bizarre for courts to decide if a state has violated human rights law by murdering its own nationals just as a jurisdictional hook to hear a property claim. Finally, every applicable canon points away from a reading that would depart sharply from the restrictive theory, put the U.S. deeply 1 in breach of the international law of state immunity, blur the jurisdictional lines over foreign sovereigns, where clarity is needed most, cause friction in foreign relations, and risk reciprocal treatment against the U.S. Congress can take these risks if it wants to, but it hasn't yet.
Chief Justice Roberts: Counsel, just to make sure, your position is because this suit involves property rights, it should not be regarded as a qualification of the international -- of international law or a case in which genocide is a pertinent issue in deciding the question of jurisdiction?
Jonathan M. Freiman: That's right, Your Honor. We believe that (a)(3) explicitly is invoking and referring to the international law of takings, that the legislators would have known in 1976 when enacting the statute against that backdrop.
Chief Justice Roberts: Well, why then do you -- why do you think that expropriation of property can't be part of a campaign of genocide?
Jonathan M. Freiman: Well, property can be 1 expropriated in a number of contexts, but the gravamen of (a)(3) is the taking of property, and the law that it's referring to is the international law of taking. I think a genocidal taking, as Your Honor puts it, is unquestionably an act of genocide if it inflicts conditions of life calculated to physically destroy a people, but it's not a taking of property within the meaning of the expropriation exception.
Chief Justice Roberts: Well, I guess my question is why that is. If it is part of a campaign of genocide, that doesn't alter the fact that it's simply taking property?
Jonathan M. Freiman: Well, I think there's -- there's three reasons, Your Honor, in terms of the -- the evidence that Congress was intending to invoke the international law of takings in (a)(3). The text, of course, is referring to language in international law, so the question is, what takings are wrongful under international law? And the Restatement provision operable at the time answered that question, what the section said -- say -- ask -- asking when are takings wrongful under 1 international law. I think second is the statutory context. You had the Sabbatino decision of this Court followed by a series of targeted responses of increasing force to foreign nations that refused to recognize the existence of the international law of takings.
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Counsel, the -- I -- I understand your argument about -- with respect to taking, but can't the -- just imagine that there's a campaign, first of all, of genocide, but in conjunction with and a part of that, there's an effort to take all of the property, including jewelry, art, and even the extraction of gold teeth, for example, taking of things like spectacles. You can go down the list of some of the awful things that were done. Can that be a part of genocide? Can that taking be a part of genocide, not separate from genocide?
Jonathan M. Freiman: Well, Your Honor, if, in fact, a -- a country is taking property with the intent of physically destroying a people or a part of a people, it -- it's unquestionably a genocidal act. But the question, again, is what Congress intended in (a)(3). Was it invoking any kind of -- anything that could be described as a taking, or does it have to be the gravamen of the claim? And, here, the gravamen of the claim in the example you gave would be genocide. But Congress did not see fit to create any kind of exception for genocide claims or other international human rights or law of war claims.
Justice Thomas: But don't you think that 1605 aids in the way that it sort of allows for a -- allows for the systematic campaigns, of course, of confiscation from -- of cultural art, doesn't that suggest that when it's aimed at a -- at a vulnerable group, that it is actionable under FSIA?
Jonathan M. Freiman: I think the important thing to recognize about the Clarification Act is that it did not amend (a)(3).
Justice Thomas: Yeah.
Jonathan M. Freiman: It took it as a given. And -- and the key here is what (a)(3) says and what the words meant then. (h) clarified the commercial nexus requirement in saying that in general, an art loan from another country isn't commercial activity in the U.S., but it created a carveout for Nazi-era claims. That carveout just left the preexisting commercial nexus definition, but it also -- (h) expressly leaves the definition of "property taken in violation of international law" untouched. It changed nothing.
Chief Justice Roberts: Thank you, counsel. Justice Breyer.
Justice Breyer: Well, am I right in thinking that a plaintiff, Mr. Smith, wants to sue a foreign country because he was injured during a genocide deliberately, seriously injured. Now he might be able to bring a suit against a private person who participated, perhaps, but he cannot sue the government. Is that right?
Jonathan M. Freiman: That's correct.
Justice Breyer: Okay. So now we're looking for whether he could sue the government, although otherwise he couldn't. If the government, instead of hurting him, and maybe it is hurting him too, then he might be able to sue for some of his things of value, is that correct?
Jonathan M. Freiman: That's the plaintiffs' theory, Your Honor.
Justice Breyer: That's the plaintiffs' theory. All right. So why is it -- this is a slightly different question, and it's just to satisfy my own curiosity -- really, 75, 85 years later, this seems to be the first case that has -- that has arisen on this theory. Am I right? Is there precedent?
Jonathan M. Freiman: Your Honor, these cases began to arise a few years ago, the -- the Fischer and Abelesz cases in the Seventh Circuit and then the two cases you're hearing today. Until then, as Your Honor noted in the Altmann case --
Justice Breyer: Yeah.
Jonathan M. Freiman: -- the consensus view was that these cases could not be brought.
Justice Breyer: Well, how did Mrs. Altmann recover?
Jonathan M. Freiman: Well, Mrs. Altmann, in fact, was a Czech -- Czechoslovakian national. And her property was taken --
Justice Breyer: But still -- still she's a Czech -- oh, I see. She -- Mrs. Altmann was, but her aunt wasn't.
Jonathan M. Freiman: Well, the -- the plaintiff in the case, the person from whom the property was taken, was a Czechoslovakian national.
Justice Breyer: All right.
Jonathan M. Freiman: So that was a -- that was not a --
Justice Breyer: So that was an expropriation in violation of the -- oh, okay.
Jonathan M. Freiman: Yeah.
Justice Breyer: I see. Thank you. Thank you.
Jonathan M. Freiman: And -- and -- and, Your Honor, I would add that in -- in the Malewicz case, which is the case that gave rise to the 1 Clarification Act, the same was true. That was a Dutch taking from a Russian national, and --
Chief Justice Roberts: Justice Alito.
Justice Alito: The ancestors of the plaintiffs in this case were all German nationals?
Jonathan M. Freiman: Yes, Your Honor.
Chief Justice Roberts: What if they were stripped of their citizenship prior to the taking of the property?
Jonathan M. Freiman: Well, I'd say a few things in response to that. First of all, the entity from which the property was allegedly taken was a -- was a company, a consortium, which was itself owned by three firms underneath that which were also companies. So this is a case of claimed takings from German national companies. But, in response to your question as to the individuals, the individuals here -- this sales transaction was finalized in the summer of 1935 according to the amended complaint, which is before the Nuremberg laws went into existence, before -- before Jewish Germans were stripped of German citizenship, so it wouldn't 1 be relevant here. Finally, to the extent that they were stripped of -- of citizenship, the question under the international law of takings is not the citizenship but is the nationality of the individuals.
Justice Alito: Well, that would get into some very difficult questions concerning the nationality of people who lived in parts of Eastern Europe that were -- that -- that had been disputed among the countries in that region for some time. But getting -- get -- getting back to the issue of timing, in the Clarification Act of 2016, Congress defined the covered period as beginning in 1933. So, in Germany, were there takings in violation of international law under your interpretation prior to 1938, in other words, cases in which the property of non-German Jews was taken by the Third Reich?
Jonathan M. Freiman: There's nothing in the record with regard to that either way, Your Honor, but I have no doubt that that occurred.
Justice Alito: Well, if it occurred, 1 would it be more than a trivial number of cases and, if so, why would Congress have gone out of its way to define the covered period as beginning in 1933?
Jonathan M. Freiman: I can't speak as to the number of cases that it was. That's a historical question that, again, has not been litigated here. But I would say as to why Congress would define the covered period as beginning in 1933, Congress was doing something very simple. It was saying the entire Nazi era, from the time that the Nazis came into power until the time that they were defeated by allied forces. And, again --
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, what is your position about the arguments Hungary makes, the arguments presented in the Hungary case?
Jonathan M. Freiman: As -- as -- as you know, Justice Sotomayor, we raised as the second question presented the same comity issue that this Court has just heard argument on in the Simon case, and we, in -- in large part, agree with the comments made by counsel for Hungary 1 and -- and for the Solicitor General in that case.
Justice Sotomayor: You do not have, however, a remaining claim in which we would have to decide the comity issue if we decide against you on this main issue, hypothetically?
Jonathan M. Freiman: If you decided in our favor in this case, there would be no --
Justice Sotomayor: No, I'm -- I'm sorry. I misspoke, yes.
Jonathan M. Freiman: If you decided in our favor on this issue, then there would be no reason for you to reach the comity question in our case.
Justice Sotomayor: Number two, we are generally instructed, self-guided, to rely on the plain meaning of the words that are presented in the statute, and the plain words in the statute here is "in violation of international law." And it's clear to me that genocidal acts of taking property, even from non-nationals -- from -- from nationals would be an act of genocide. I think that's clear from the Clarification Act today. 1 So why don't we follow the plain meaning of the statute, and why should we look to customary international law as opposed to simply the plain meaning of the words?
Jonathan M. Freiman: Well, I think, Your Honor, you have to look at the plain meaning of the words in their context and in their time. And as Bostock made clear recently, when there's a difference in the meaning at the time of enactment as opposed to the present day and there's evidence of that, you do need to look to that. Here, we have a situation where the -- the House Report specifically refers to a taking in violation of international law as a term, which means that it's referring to a body of law. And it cites the second Hickenlooper Amendment. It cites this Court's decision in Alfred Dunhill, which was involving Cuban expropriations, came down just months before the FSIA, which --
Chief Justice Roberts: Justice Kagan.
Justice Kagan: You know, yes, Mr. Freiman, we look to the meaning in its time, but I guess I don't quite understand what words in 1 the statute meant something different in its time. "Rights" and "property" mean the same thing. And then you have, you know, "taken in violation of international law." I understood you to concede the point the property can be taken in -- as -- as -- as -- as part of, as an important element of genocide, so that property can be taken in -- in violation of international law. So why doesn't that just solve the problem? It's a matter of reading the plain meaning of the text, what it meant then as well as what it meant now, means now?
Jonathan M. Freiman: I think the important thing is to read the clause as a whole, and the term here is "taken in violation of international law," which, as noted, was something that had a defined meaning in the international law of takings, which is what Congress was addressing in responding to the Communist expropriations. I -- I think it's also --
Justice Kagan: Well, I mean, I guess -- I guess, Mr. Freiman, it's clear that Congress was thinking about a certain thing 1 primarily, which is the -- which was the expropriation context. But Congress wrote words which didn't deal only with that thing but which applied more broadly and seems to cover the kind of property taking at issue in this case.
Jonathan M. Freiman: I don't think so, Your Honor, because I think the question is what's the gravamen. If there's a claim that there were conditions of life that were created that led to the potential destruction of a people, that's a claim of genocide. That's not a claim of a taking. And -- and -- and (a)(3) is involved with taking claims. Now, if you look at the other parts of --
Justice Kagan: I understood you to say the opposite a little while ago, that you weren't contesting that -- that the taking of property rights can constitute genocidal acts.
Jonathan M. Freiman: Certainly, taking property can create conditions of life that are intended to destroy a people, and that clearly is a violation of the law of genocide. But that doesn't mean that it's a violation of the law of takings. 1 And this provision of the FSIA is creating a narrow exception for violations of the law of takings. There are other parts of the F --
Justice Kagan: Thank you. Thank you, Mr. Freiman.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, counsel. I'd -- I'd like to return to the question of what do we do about a stateless people. You indicated that the Jewish victims of the Holocaust were stripped of their citizenship but not nationality and are, therefore, still barred by the domestic takings rule. But, if they can't access the domestic takings laws because they are no longer citizens, in -- in what respect could that -- could that rule bar them?
Jonathan M. Freiman: Let me respond in -- in -- in three parts, Your Honor. First of all, the question of statelessness is not a question that was raised 1 by the plaintiffs in this case in the district court, court of appeals, or here. So this is entirely a forfeited question, one that the Court need not address, and, in fact, hasn't been developed in any way. The second -- the second -- the second point is that, just to remind you, historically here the claims are that this transaction occurred in the summer of 1935, which is --
Justice Gorsuch: Let -- let -- let -- let's put aside the -- the dates and the facts. Your third answer to Justice Alito supposed that they were, in fact, stripped of their citizenship before the taking, but that -- you said that doesn't matter because they're still nationals.
Jonathan M. Freiman: Well --
Justice Gorsuch: And I'm asking you, well, in what relevant sense does that make a difference?
Jonathan M. Freiman: That would require this Court to go down the path of determining the international law of nationality. I will say that there's no bad treatment exception under the international law of nationality, and if it 1 were read -- it's not a -- the international law of takings is not a human rights principle. It's a principle of nation-to-nation rights and of the transfer of wealth. And in that sense, this would create an enormous expansion of the international law of takings if you viewed people who were stateless as being somehow immune from the ordinary rules of the international law of takings.
Justice Gorsuch: So the domestic law -- taking law, as far as you're concerned, would permit a state to forbid almost everybody in -- in its jurisdiction from -- from any -- any recourse and -- and that would pose no problem?
Jonathan M. Freiman: I mean, to be fair, Your Honor, again, this is not something that's been briefed, so I -- I can't really say. I can only say that, here, where there's no question that people were citizens and nationals, the international --
Justice Gorsuch: All right. Last question -- I'm sorry to interrupt, but time requires me to do so. 1 What do we -- you say it wasn't -- it was forfeited, but, of course, the plaintiffs won their subject matter jurisdiction on other grounds. If we were to -- if we were to find in your favor here, shouldn't they be given a shot to -- to make this argument on remand?
Jonathan M. Freiman: I don't think so, Your Honor. I mean, they could have raised it at any point in response to our arguments that this was beyond the scope of the international law of takings. They never did. Matter of fact, even in their opposition brief here, they don't. They just point out that they believe that the rule shouldn't apply in the context of genocide.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you. And good morning, counsel. At page 10 of your reply brief, you say, and I'm quoting, "It is literally possible to read the exception to mean takings that violate any principle of international law." And to follow up on questions asked by Justices Sotomayor and Kagan, why isn't that the end of the case?
Jonathan M. Freiman: This Court held in Samantar that the mere fact that something is literally possible does not mean it's what -- it's what the text meant. And in Dolan, this Court has noted that reading a statute to the outer limits of its definitional possibilities is sometimes in error. In the context of the FSIA, this Court has made repeatedly clear that it's important to remember what Congress was going after. What Congress was going after was codifying the restrictive theory and avoiding friction in international relations. To read this to the outer limits of its definitional possibilities, to -- to -- to cut this phrase apart into different pieces and say it can cover this is to create friction in international relations. It's to risk reciprocity in the ways discussed in the previous case.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: So, counsel, you said earlier that the expropriation exception, 1 there would be jurisdiction for a U.S. court to hear a claim by a foreign national against, say, Germany for the -- for a claim that Germany took that foreign national's property as part of the genocide of the Holocaust under the international law of takings. Judge Katsas pointed out in his dissent from denial of rehearing en banc that in the context of the kinds of claims that the plaintiffs asserted here, that the scheme they propose oddly matches the jurisdictional equivalent of a thermonuclear weapon, determining the scope of genocide, to the merits equivalent of swatting a fly, which is looking at the underlying merits, determining whether there was a common law conversion. Would -- in the private context that -- that everybody agrees could go forward under the international law of takings if this were a suit brought by foreign nationals, would that involve the court in the same kind of quagmire that Judge Katsas is identifying here, having to determine the scope of a genocide, or does resort to the international law of takings give the court a clean way of deciding it without 1 having to get into the human rights aspect?
Jonathan M. Freiman: It gives the court the clean way, Your Honor, because the court just has to decide was the claimant a national of another state, and then the basic parameters of the international law of takings, was there -- was there compensation given, was it prompt and effective? So it doesn't raise those kinds of extraordinary foreign relations concerns that are raised when district courts are asked to determine whether there was a violation of the law of genocide or systematic racial discrimination or the laws of war.
Justice Barrett: Would it still raise the concerns implicated by a very, very large judgment against a foreign country?
Jonathan M. Freiman: Well, there's the possibility of -- of a large judgment, depending on the circumstances, Your Honor. I don't think the FSIA puts any limit on that except to preclude punitive damages.
Justice Barrett: Thank you.
Chief Justice Roberts: A minute to wrap up, Mr. Freiman.
Jonathan M. Freiman: Thank you. 1 I'd like to, I guess, raise three reasons for skepticism about the broad reading of (a)(3) that plaintiffs provide, and the first two track what you heard earlier of Simon. Under plaintiffs' view of the expropriation exception, it's easier to sue a foreign sovereign than it is to sue a private defendant under the ATS because, under the ATS, Kiobel makes clear that foreign-cubed cases don't belong in U.S. courts. The second is there's no serious account of reciprocity concerns. Those were laid out ably by counsel for Hungary. I need not repeat them. But they're extraordinary here when we're talking about subjecting a foreign sovereign to potential liability for the gravest human rights abuses in history. The third is clarity with regard to jurisdiction, especially for foreigners. In Helmerich, in the context of the expropriation exception, this Court made clear that clarity is particularly important. In our view, it's there. It's the international law of taking. In their view, it's unbounded: any international law that anyone can think of in 1 the human rights or law of war context.
Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The United States deplores the atrocities committed against victims of the Nazi regime and has long had a policy of encouraging Germany and other countries to provide mechanisms to afford a measure of justice. Respondents, though, have sought to sue in U.S. court, but the exception to sovereign immunity on which they rely is limited to violations of the international law of takings or expropriations, which has long prohibited only the taking of a foreign national's property if done without compensation. That interpretation is confirmed by the parallel provision of the Restatement in effect when the FSIA was enacted, and the 1 exception's statutory history is part of Congress's response to the uncompensated expropriation of Americans' property by Cuba and others. By contrast, to read the expropriation exception as opening U.S. courts to suits based on human rights violation would constitute a major department -- departure from the FSIA's text, structure, and context, and require U.S. courts to make sensitive judgments about a foreign state's treatment of the persons within its territory.
Chief Justice Roberts: Mr. Kneedler, you -- you began by mentioning the United States' policy of encouraging dispute resolution mechanisms to address questions such as the one before us. How do you judge the adequacy of those alternatives? And isn't that something that should enter into our determination about whether the takings remedy should be available under international law?
Edwin S. Kneedler: No, I -- I -- I don't think so. The -- the -- it -- it -- it seems pretty clear at the time that the only -- the 1 only international law addressing takings was the law of expropriation, which had to do with -- with whether compensation was awarded to a foreign national. So the question -- question of any remedies between a state and its nationals was entirely internal --
Chief Justice Roberts: Well, but that's the --
Edwin S. Kneedler: -- and there the law --
Chief Justice Roberts: -- that's the main policy, as I gather, of -- of the United States, is simply to -- to encourage other countries to provide mechanisms for compensation. And if -- if that fails, then that's just too bad?
Edwin S. Kneedler: Well, that's the -- again, under the -- the international law of expropriations, to which the FSIA was referring, that -- that is right. The relationship between a state and its own nationals was a matter that other nations had no right to complain about. The -- the domestic takings law was really the converse of -- of the rule that international law does prohibit the 1 uncompensated taking of the property of nationals of another country because that violates the rights of that other country.
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Kneedler, I'm interested in what you think of this -- of the stateless people or people who have been denaturalized, as Justice Alito brought up.
Edwin S. Kneedler: We -- we have not addressed that, and that issue has not been developed in this case. And I -- I -- I don't feel that I'm in a position to address it at -- here in this Court. If the -- if the Court thinks that it -- it is worth focusing on or should be focused on, it could -- it would be open on remand to see whether that has been waived and what the ramifications are. But there -- there are, you know, perhaps sensitive questions about that and would -- I think the question would have to take into 1 account the formulation of the -- of the rule, which is that international law prohibited the uncompensated taking of a foreign -- of an alien's property or the national of another nation. Now how that would play out, whether -- whether there's some other way to look at it with respect to stateless persons or persons deprived of citizenship, that is something that the -- that the courts on remand could consider if -- if that issue has been preserved.
Justice Thomas: I know, but doesn't it draw into question, Mr. Kneedler, the difference in treatment between a citizen of a sovereign and the non-citizen of a sovereign, with the non-citizen, of course, being able to -- to -- to sue that sovereign under FSIA but the citizen not being able to, and then a big question mark with respect to the denaturalized or stateless person?
Edwin S. Kneedler: Well, that -- again, that question has not -- how that plays out has not been developed, but the reason why the national of another nation can sue is because the domestic takings rule, it is a product of 1 state responsibility to another state, and an individual national of that state can sue for -- for an expropriation. Now how the loss of citizenship or deprivation of citizenship would play out within the -- within the expropriating country is something that has not been developed -- has not been developed in this case, but --
Chief Justice Roberts: Justice Breyer.
Justice Breyer: This is a 30,000-foot question, so you may not have an answer, but, in reading this, I thought, well, it's been for quite a long time that the United States has favored some kind of reparation for victims of all kinds of real horrors in the world -- genocide, apartheid, slavery -- we heard that the other day -- and they still go on. All right. Certainly, here, the -- the disadvantage is, you point out, of reading this statute the way you don't want it read, but we have not joined the International Court. It is more difficult for a private person to bring a case under the ATS as now interpreted. Stuart Eizenstat said these things 1 should be worked out through informal mediation and other kinds of negotiations. I'm not sure if they've been done. So has it now turned that this is the only way -- it's either nothing to deal with these problems and to get -- to get some kind of compensation, or we're left with our great efforts to have achieved almost nothing?
Edwin S. Kneedler: The United States for 20 years has been urging countries to adopt -- first of all, right after the war, there were a number of reparations and compensation programs for victims. In more recent times, starting with the Washington Principles, the United States has been a leader in urging other countries to establish other mechanisms for the restitution -- tracking down and restitution or compensation for property that has been taken. Different countries have responded, some more fully; others less so. The United States continues to urge and work with those countries, particularly Germany. There was a joint statement issued in 2018 in which the United States recognized that more needed to be 1 done with respect to the Advisory Commission that Germany has set up. There are questions about whether remedies would be available in German law. The Washington Principles rest on an understanding that different countries may have different approaches to these questions: Some could be lawsuits; some could be mediation panels, arbitration panels, things like that, and --
Chief Justice Roberts: Justice Alito.
Justice Alito: We've talked about the -- the stripping of citizenship. What about the acquisition or the forced acquisition of -- of citizenship? So was a Jew who lived in Austria barred by the domestic takings rule after Germany forcibly -- annexed Austria? What about a Jew living in the Sudetenland, for example?
Edwin S. Kneedler: Well, I think there could be questions about who was the government of that territory at the time. Was there a Vichy government that would be the responsible government, or was it directly governed by -- by Germany? So there are -- you know, there could 1 be questions like that that -- that would involve questions, you know, not directly involved -- involved here.
Justice Alito: Yeah. No, I understand. Perhaps that's not a fair question to require you to respond to, but I -- I think this is. Could you address the question that I asked earlier about the definition of "covered period" in the 2016 Clarification Act?
Edwin S. Kneedler: Yeah, I -- I -- I think it's important to recognize that -- that what the 2016 Clarification Act did was really preserve the ability of someone cut in that -- who had a claim in that covered period to rely on the loaning of property for the commercial nexus. It left un- -- it left untouched whether there was a violation of international law and what that term means. It really -- it really, rather than bringing those claims within the immunity that was granted under that special statute when property was brought into the United States, it excepted these claims for that period from that -- from that due immunity, but 1 it left them otherwise as they were. Therefore, it -- it's necessary to go -- and Congress was being comprehensive by including the entire period of the Nazi regime so that all those claims would be able to take advantage of that jurisdictional nexus, but, again, it left untouched the question of what "taken in violation of international law" means. In fact, it --
Justice Alito: Thank --
Edwin S. Kneedler: -- specifically refers to --
Justice Alito: -- thank you. Thank you, Mr. Kneedler.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, to what extent have other nations created or done away with sovereign immunity for takings either from nationals or non-nationals? Meaning the U.S. has done it, you claim, for takings involving non-nationals, but how many other countries have done the same thing, waived sovereign immunity in those situations automatically?
Edwin S. Kneedler: Virtually none. And -- 1 and -- and, certainly, none have waived with respect to claims or -- or abrogated or created an exception for claims based on takings from domestic takings.
Justice Sotomayor: Well, I guess -- I guess, if it were up to me -- I'm sorry for interrupting you, but we are on limited time -- if we're already an exception to the rule, I don't see then why we have to read the exception to the rule -- what the principles that would guide us with respect to the U.S.'s self-interest, why we shouldn't just read the plain text of the law and import into it the limitations of customary international law when customary international law, frankly, doesn't waive sovereign immunity at all?
Edwin S. Kneedler: Well, this was a very modest exception when it was adopted. It was intended to be and it was -- it -- it was an outgrowth or of a piece with Congress's efforts to respond to the uncompensated garden variety or whatever you want to call them, the reg- -- the regular sorts of takings that are governed by our Just Compensation Clause and that are governed by the Customary International Law of 1 Takings or expropriation. It -- it was regarded as not much of a deviation from the -- from the restrictive theory of sovereign immunity. What's being urged here would be a radical departure from that because it would open U.S. courts to adjudicating whether foreign governments had engaged in serious human rights abuses. Here, it may be everybody agrees that there was a genocide and a human rights violation occurred. And, in response to that, in fact, that's what the United States has urged the countries involved to be responsible for. But, in other situations, there would -- the Court might be asked in the first time, in the first instance to decide whether there was an Armenian genocide, for example, or whether --
Chief Justice Roberts: Thank you, counsel. Justice Kagan.
Justice Kagan: Mr. Kneedler, I take your point that Congress probably wasn't thinking about this case when it passed (a)(3), but -- but that's not always what we consider 1 most relevant. I mean, what is your best evidence that this language that is used in (a)(3) is a term of art with a specialized meaning, as opposed to ordinary language that should be read in an ordinary way to comprehend these claims, whether or not Congress thought about the question at the time?
Edwin S. Kneedler: Well, I mean, I think there are a number of things that reinforce that. First of all, the -- the entire phrase is "taken in violation of international law," which requires reference to international law as it was understood at the time. And the Restatement at the time, Section 185, and this Court has looked to the Restatement in the past to inform its understanding of the FSIA.
Justice Kagan: Well, international law at the time recognized the international crime of genocide, correct?
Edwin S. Kneedler: At -- at -- yes, I'm sorry, in '76, yes, but -- but I -- I think what's important to look at is the -- the 1 phrasing is "property taken," which we think connotes or calls up the concepts just like in our own Fifth Amendment referring to private -- to property taken that --
Justice Kagan: I mean, it's true that you have the word "taken," but, in -- in -- in fact, you don't even have the word "taking" or -- or "confiscation" in the way that you have in the Hickenlooper Act. And the Restatement, which some people have pointed to, you know, also uses the word "taking" and makes it very clear that it -- the word "alien" is all over the Restatement. So, if I'm just looking at this language, "taken" itself, I say, well, this language covers these claims.
Edwin S. Kneedler: Well, again, the reference -- the -- Section 185 of the Restatement posits the question when taking is wrongful under international law, which is virtually the language of the exception. And then it says the taking by a state of property of an alien is wrongful under international law in the specified circumstances. And this -- this -- this is a position 1 that goes back to Secretary Hull in 1938 to -- to Belmont, to Sabbatino. The controversy --
Justice Kagan: Thank you, Mr. Kneedler. Thank you.
Edwin S. Kneedler: -- in Sabbatino was whether --
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Kneedler. I -- I understand your argument that the Clarification Act only works to address limits on the commercial activity requirement. But (h)(2) does exempt Nazi-era claims, and -- where the action is "based on a claim that such work was taken in connection with the acts of a foreign government as part of a systematic campaign of coercive confiscation or misappropriation of works from members of a targeted and vulnerable group." Doesn't that seem to anticipate that there will be such claims that can be brought under (a)(3)?
Edwin S. Kneedler: I -- I think what it -- what it does is recognize that some such claims have been brought, but it doesn't pass on the 1 question of whether they are valid claims. It serves the purpose of not granting those claims an additional immunity in a sense by saying that if the property is brought into the U.S., it doesn't count as commercial activity. But it otherwise refers to a taking within the meaning of (b)(3), and that refers back then to what (b)(3) -- or, excuse me, (a)(3) means. And we think it -- it was clear then and it's clear now that it is limited to -- to the international law of expropriations, which has to do with whether there was adequate compensation and a public purpose.
Justice Gorsuch: If Congress, though, isn't disadvantaging Holocaust-era claims the way it wishes to disadvantage other claims, what should that tell us?
Edwin S. Kneedler: That there was a, I suppose, special solicitude in having -- in allowing -- in not cutting off those claims. Again, it only applies when the property is brought into the United States. And if -- if -- if Congress was acting on the assumption or even the belief that some 1 claims were valid, that -- that still is the view of the later Congress. It didn't change the language, and -- and -- and this Court has often said that the view of the later Congress is of very limited force when it comes to interpreting something that was enacted here almost 40 years -- almost 40 years earlier.
Justice Gorsuch: Thank you.
Edwin S. Kneedler: And, again --
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. And good morning, Mr. Kneedler. You've explained what you think the statutory phrase means, but I just want to explore the rationale behind the distinction. So what, in your view, is the justification for denying compensation to citizens of the country in question or, maybe stated the other way, what harms would result from recognizing claims that outweigh the benefits of recognizing the claims?
Edwin S. Kneedler: Well, several things. It's -- it's an aspect of the rule of state 1 responsibility to other states. And so, when -- when the expropriating state takes the property of another state's nationals, that is offending the rights of that state, and that individual, Congress concluded, should be able to sue. But corresponding to that, this Court has often said, in Sabbatino and elsewhere, that the -- that that principle is limited to the taking of property of aliens because, as a general principle, the treatment of a country of -- of its own nationals is not a matter of international concern. So what was -- and -- and if a -- if a state -- and this was true in Communist states. This was the controversy at the time. Many states believed that they could take their citizens' property without compensation. And -- and the act of state doctrine in Sabbatino did not interfere with that at all. All of those cases and -- and discussions took as a given that there would be no compensation -- or U.S. could not enforce a rule of compensation for an expropriation by another country of its own nationals' property. That was a given. 1 The controversial point was the one the United States was urging about whether international law even spoke to the question of expropriating the property of nationals. And the Restatement and the -- and the expropriation exception are an expression of Congress's view of U.S. policy -- yes, that that does violate international law -- but that's as far as it goes. And that is what Congress was driving at in enacting the FSIA, not opening U.S. courts to broader human rights violation claims.
Chief Justice Roberts: Thank you, counsel. Justice Barrett.
Justice Barrett: Mr. Kneedler, I have a question about what the Clarification Act should tell us about the expropriation exception. So, in showing special solicitude for Nazi-era claims, the Clarification Act clearly assumes that some such claims against Nazi-era confiscations of property would be going forward and that the Foreign Sovereign Immunities Act would not bar them. 1 So, if your interpretation of the expropriation exception is correct to say that it applies only when there's a foreign national suing a government for the taking of property, what kind of class of claims are those? I guess I would open up some of the difficult questions of nationality and citizenship that Justice Alito was asking you, but could we expect there would have been or was there a large subset of claims brought against Nazi governments -- Nazi-controlled governments by foreign nationals? What -- what is Congress referring to there?
Edwin S. Kneedler: Well, several things. I mean, like Altmann was a case by a foreign national against -- against Austria, but I think the bigger point is that Congress knew there were such claims, but I don't think that is the same thing as Congress determining that those -- that those could -- that they -- that they fell within the Expropriation Act, and, in fact, again, the Clarification Act simply refers to the taking of property within the meaning of (a)(3), which refers one back to what (a)(3) means. 1 So, really, what Congress was doing was not taking away the opportunity of someone who had such a claim to rely on the loan of property to a U.S. museum as establishing the commercial nexus, but it didn't do more than that. And I think the Court should -- should insist upon a much more explicit and -- and conscious determination by Congress to open up U.S. courts to these sorts of claims, which are far beyond what Congress had in mind when it enacted the FSIA.
Justice Barrett: Thank you, counsel.
Chief Justice Roberts: A minute to wrap up, Mr. Kneedler.
Edwin S. Kneedler: Thank you, Mr. Chief Justice. An important thing to remember here is that the Foreign Sovereign Immunities Act was the codification of the restrictive theory of sovereign immunity, and it adopted a general rule of immunity subject to exceptions. This Court has referred to that as a presumption of immunity. And this Court should enforce that by insisting upon a clear statement by Congress to 1 depart from the -- from the restrictive theory. The problem here, beyond the statutory text and context and background and structure, is the fact that this would put courts of the United States in the business of making sensitive judgments about the conduct of foreign governments, including perhaps some of our closest allies, and invite other countries to open their courts to claims based on situations in the -- in this country's unfortunate past, where it has committed acts that everyone would now regard as violations of the law of nations. So this Court should adhere to Congress's understanding and intention of limiting the expropriation exception to circumstances involving the taking of property by foreign nationals in the traditional sense of requiring the compensation and not tie it to the violation of international law.
Chief Justice Roberts: Thank you, Mr. Kneedler. Mr. O'Donnell. ORAL ARGUMENT OF NICHOLAS M. O'DONNELL ON BEHALF OF THE RESPONDENTS
Nicholas M. O'Donnell: Mr. Chief Justice, and 1 may it please the Court: The Foreign Sovereign Immunities Act provides jurisdiction over cases in which rights and property taken in violation of international law are at issue. The ordinary and natural meaning of that phrase, chosen by Congress, applies to Petitioners' property takings during the Holocaust. The Nazis deemed German Jews to be non-German, aliens outside of the rule of law, at the moment the regime began on January 30, 1933, and took their property because of who they were. I was puzzled here, the suggestion earlier that we have not raised that issue, because we have framed the case in those terms since the complaint and at every stage since. This Court in Helmerich noted the potential that a sovereign -- sovereign's takings of its own nationals' property may amount to a violation of international law. If that logic did not apply to Nazi-forced sales from Jews, when would it apply? Petitioner Germany also committed genocide, which is itself a violation of international law. The Nazi government set out 1 explicitly to destroy the German Jewish people by taking their property. And Congress has specifically identified the Nazi's looting of art from the Jewish people as genocidal. This is not a new kind of human rights case. It's a property rights case. Briefly, with respect to comity, sovereign immunity is the broadest expression of what Justice Breyer this morning called a motivating principle. And Congress in 1976 created a comprehensive non-discretionary framework for that motivating principle. Petitioners' newfound status-based comity abstention argument would trample the FSIA out of existence. As Ms. Harrington said, what sovereign defendant would not claim a paramount interest in property within its own territory. Every one of the takings of property of aliens that Petitioners say are covered by the law would immediately face this assertion. Congress has set the rules, and the Court need not rewrite them.
Chief Justice Roberts: Counsel, what do you do with the International Court of Justice determination that it would, in fact, be 1 a violation of international law to refuse to grant immunity to a state for expropriation of its own nationals' property?
Nicholas M. O'Donnell: Mr. Chief Justice, I think the answer is one that Ms. Harrington provided and that Mr. Kneedler, in part, conceded, and that is that there is no other nation that provides jurisdiction for expropriations in this way. So, if the expropriation exception would violate international law, it already had and it already has for almost 45 years.
Chief Justice Roberts: But what is your -- your best evidence that there is a genocide exception to the general rule that the expropriation exception is limited to the taking of foreign nationals' property?
Nicholas M. O'Donnell: Mr. Chief Justice, I think there are two answers to that. One is that, as was alluded to in an earlier comment, genocide was already recognized as a violation of international law in 1976. And much more squarely --
Chief Justice Roberts: Well, but, at that time -- but, at that time, the 1 expropriation of a nation by its own nationals' property was not recognized as a violation of international law.
Nicholas M. O'Donnell: I think, respectfully, Your Honor, that the state of that understanding is -- is a little less solid than Petitioners suggest. I think one of the things you see in the Congressional Record, you see in the amicus brief by Mr. Feldman in the Hungary case, for example, is that it was a bit of a jungle as to -- as to how to treat expropriations from citizens. And the Restatement addresses when a taking of property from an alien violates international law, but it's a section about takings from aliens. And it's not as clearly laid out as the genocide convention, which had been codified all the way back in 1948 and was well within the -- the view of Congress. And the second is this specific historic episode had received considerable treatment by U.S. policymakers and the executive, in particular, the letter from Mr. Kate in 1949 that it was the policy of the executive, never rescinded since, to remove any 1 constraint upon the exercise of jurisdiction over the acts of Nazi officials.
Chief Justice Roberts: Well, obviously, there's no issue in this case, but how do you decide in -- in other instances whether or not the taking is in the context of more general violations of human rights so that you call -- fall within this -- in other words, how broadly would you articulate the -- if you want to call it the genocide exception to the normal rule? Now, of course, the first answer is, you know, whatever it is, it covers this case, but do you have a more general rule that would be applied in other situations?
Nicholas M. O'Donnell: Your Honor, I have two. The first is when the claim -- that the claim has to sound -- as you said in -- in OBB, the gravamen has to be about the taking of property. And if you look at the other human rights norms in Judge Katsas's dissent, for example, they do not implicate the taking of property. Torture is not caused by the taking of property. In fact, the Torture Victim 1 Protections Act specifically eschews torture by deprivation, anything -- or caused by anything other than physical anguish. So the first is the claim that the international human rights norm has to sound in the taking of property in the first instance and that those other norms do not. And the second position I would say, Your Honor, as the final sort of foundry against all of this is, well, then look to what Congress has said. Has Congress recognized this episode of property taking as a violation of international law or a genocide? The list -- that list is vanishingly small. And -- and even though in instances that Congress has recognized as genocide after considerable debate, fewer of those still -- again, the genocide convention has multiple avenues, if you will, to the commission of genocide. And --
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. 1 Counsel, can you give me any -- any example of genocide where property has not been involved? It seems like, as I think of whether it's Armenia or the Ukraine or Germany or up in the Baltic States, that whenever that's occurred there's been a loss of property or a taking of property. So wouldn't virtually every one of those involved be covered by your argument?
Nicholas M. O'Donnell: Not necessarily, Your Honor, because even those genocides recognize or are commonly understood to recognize as such, again, there may be property takings that happen alongside the genocide, but the genocide convention, a genocide can be committed, as I've said, in multiple ways. And if you kill the members of the group and then you take their property, the -- the taking didn't cause the genocide. It was alongside of it. But, if you take the property, as Germany did, explicitly to destroy the group of people and remove it from the face of the earth, then you've committed -- committed genocide through the taking of property, which is the focus of the expropriation exception.
Justice Thomas: Well, I don't 1 understand how it would make a difference to have one sequence versus the other, that you commit the genocide before you take the property or the property before you take the -- the -- before you commit the genocide. But, with that aside, we've said, I think, in other cases that the expropriation exception was not a radical departure. Wouldn't your reading it as you do be just that, a radical departure?
Nicholas M. O'Donnell: With respect, Your Honor, no, because I would submit that if there was any taking of property recognized in 1976 as in violation of the law of nations, it was what this Petitioner did between 1933 and 1945. It is not hard to imagine at all. In fact, I -- I think it's the opposite --
Justice Thomas: No, I -- I understand that, but I'm talking about your -- really, your reading of FSIA, that wouldn't that be a -- a -- a radical departure from more -- a more restrictive theory?
Nicholas M. O'Donnell: I -- I don't think it would, Your Honor. It -- it would be a departure from the restricted theory, no 1 question, or from the restrictive theory as it appeared, but that -- that view changed over time. And, again, I -- I come back to the author of the letter that announced the restrictive theory in 1940 -- 1952 and that's Mr. Kate. And genocide in this way, we -- we can be thankful there are not other examples like it. It -- it -- it cannot be repeated enough, there is no paradigm like the Holocaust. And there is no second case that fits into the allegations of the Holocaust. Mezerhane, the Eleventh Circuit case relied upon by Petitioners, points this out. The Venezuelan victims in that case tried to say, well, we -- we are sort of being treated unfairly and like foreign nationals, like the Nazis treated people, and the Eleventh Circuit said that's absurd, that's absurd, there's only one Holocaust.
Justice Thomas: If -- if we have some doubts about whether or not you've preserved your alternative standing argument, should we just remand that to the district court to consider in the first instance?
Nicholas M. O'Donnell: Alternative standing in what respect, Your Honor?
Justice Thomas: Well, I mean, if you -- your argument, you're arguing, obviously, an interpretation of FSIA. But you also have an argument that -- that you just made, for example, that genocide -- that the taking is genocidal. Was that preserved?
Nicholas M. O'Donnell: Yes, Your Honor. We -- we -- we allege in the complaints and have said at every stage since that Nazi Germany's treatment of the consortium as non-Germans is -- is a violation of international law. The Petitioners raised the domestic takings rule in their motion to dismiss the first amended complaint, and we have been arguing about it ever since. I really don't understand Petitioners' argument that this has not come up before.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: It seems to me that you could read this language to refer to what was expropriations, that was the Communists, 1 that was Nasser, that was sometimes in South America, Venezuela, et cetera. And they're talking about expropriation. And the other way would be to read it, as you read it, they're just talking about property involved in a violation of international law. And, as Justice Thomas also has pointed out, seems to me there are loads of violations of international law in violating -- in violating -- that involves property, not just genocide. And so an argument that's made against your side is look what you're opening up. I mean, you can have slavery involving property. You can have systematic discrimination. You can have cruel and unhuman degrading treatment. I mean, the list goes on and on of what violates international law. And many of them involve property. And if we can bring these kinds of actions here, well, so can these other countries do the same and accuse us. I mean, what about Japanese internment, which involved 30,000 people in World War II who were not American citizens but were of Japanese origin? And the first time 1 we'd sue China for the Rohingyas or whatever, you know, what do you think they're going to say about the -- the -- the railroad workers who came in in the 19th century? I mean, that seems in no way to limit it according to a principle that would say we should have the actions here that are universalizable and won't hurt, through chaos, if they're brought everywhere. That's a fairly strong argument. And so I think that that's why I want to hear you answer it.
Nicholas M. O'Donnell: Your Honor, I think the first response to that is that it could easily be limited to instances where Congress has identified the episode or the taking in those terms. And, again, that's a very short list. I don't know that it extends any further than the Holocaust and World War II. And --
Justice Breyer: Well, why isn't it? Why isn't it a taking of property in violation of international law where, in country X, they have child slavery involving children from other countries, and they take the property in deed, whether or not you call it labor as a property. They take other property too. And so they come 1 to court, and 700 judges in this country pass judgment on that. Why doesn't that fall within the language?
Nicholas M. O'Donnell: Because the violation of the international norm, Your Honor, doesn't cause the deprivation.
Justice Breyer: Why -- it doesn't? Suing them into slavery, bringing them into slavery doesn't cause the deprivation of the house they own in the adjacent country? It doesn't involve the deprivation of sometimes their clothing and sometimes their gold teeth, as Justice Thomas said? I mean, terrible things happen in this world. And that's why I was somewhat moved by Eizenstat's statement that the way to go after them practically is through all kinds of mediation, arbitration, and other kinds of special agreements, and not necessarily 700 judges.
Nicholas M. O'Donnell: Well, Your Honor, I'll take that second point first because, as Ms. Harrington alluded to, I think it's actually the reverse. 1 The existence of those claims is what led to the Berlin Accords and the resolution at a broad level of banking claims that were substantial and sweeping, and it was the prospect of facing those litigations that brought the parties to the table. In this case, Congress has recognized, sure, it's better that we can work it out. But it's clearly not possible. That's what the HEAR Act said. Congress stated a strong unanimous policy in 2016 that these claims survive. Again, to go back to the Clarification Act, if Congress has recognized it, there really isn't a need, I think, for further inquiry.
Chief Justice Roberts: Justice Alito.
Justice Alito: I want to make sure I understand the scope of your argument. At times in your brief, particularly when you refer to the absence from the provision in question of any reference to aliens, you seem to be making an argument that would apply to any domestic taking. But that's not your argument, am I right?
Nicholas M. O'Donnell: No, it would still need to violate an identifiable norm of 1 international law.
Justice Alito: Okay. So is -- is it your argument that any taking that violates any principle of international law would be covered, or is your argument limited to those acts that constitute genocide or those that are part of a campaign of genocide, or is it a Holocaust-specific argument?
Nicholas M. O'Donnell: My argument, Your Honor, is it -- it -- it extends certainly to genocide, it extends certainly to the Holocaust, and it would extend to other norms of which I can't think of any, where, as I said to Justice Breyer, it is a -- it is a violation of the norm itself that causes the property taking.
Justice Alito: Well, since World War II, customary international law has expanded greatly. Prior to World War II, it was largely, if not entirely, limited to relations between nations, but, in reaction to the Holocaust, to those horrors, customary international law has reached out and now protects many human rights. So would your argument apply to any taking that violates any principle of human rights recognized by customary international law 1 or by treaties since the Second World War?
Nicholas M. O'Donnell: No, Your Honor, it couldn't extend any past -- any further past 1976 because the Court has -- has said on a number of occasions that the understanding for this law --
Justice Alito: Okay. Well, most of -- most of that work was done -- a lot of it was done before 1976. Would it be -- would it include everything recognized up to 1976?
Nicholas M. O'Donnell: Your Honor, I -- I'm not sure I have the same view of how much of that work had been done by 1976, but, if the -- if the norm violation caused the property taking, yes.
Justice Alito: Even if it's limited to genocide -- there have been many incidents in the past that some people claim are genocidal. Sometimes these are hotly disputed. I won't go through the list. I hope there won't be more in the future, but, given human nature, that's a possibility. Wouldn't your argument require courts to decide whether a particular event that indisputably involved atrocities amounted to genocide?
Nicholas M. O'Donnell: They might be faced with that threshold question, Your Honor. And in that instance, as we've said, I think the easiest signal post, as in the rest of this law, is to look what Congress has said about that alleged episode.
Justice Alito: Well, on what ground would we say this includes genocide but only those that have been specifically recognized in some other statute that does not govern this particular case? What would be our justification for drawing that distinction?
Nicholas M. O'Donnell: It would be to determine the scope that Congress intended through the passage not only of this law but of other laws on that topic as to that particular case. Now, in this case, the FSIA itself has been amended to include the episode at the heart of this very case --
Justice Alito: So we would --
Nicholas M. O'Donnell: -- though not in --
Justice Alito: -- so did the -- the meaning of the FSIA change?
Justice Alito: Based on later congressional legislation?
Justice Alito: Then how would we read that back into our interpretation of the FSIA?
Nicholas M. O'Donnell: Well, then I suppose, Your Honor, you'd have to look at the genocide that Congress had recognized as of 1976.
Justice Alito: So this would -- this would apply only to past genocides? It wouldn't apply to any that occurred in the future?
Nicholas M. O'Donnell: No, I think I -- I think I would walk that back actually, Your Honor. I -- I think -- I think, if Congress expressed itself squarely in those terms, it would apply.
Justice Alito: All right. Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, let's assume we accept your adversary's position that the FSIA has to be read to apply -- that the only international -- customary international law was the customary international law that limited its application to -- to non-nationals. 1 What -- just articulate for me what you see as left in the case. Do we reverse and -- and direct dismissal? Do we reverse and remand and for what?
Nicholas M. O'Donnell: Your Honor, I think you affirm, because the complaint alleges --
Justice Sotomayor: I know that's what you want, counsel.
Nicholas M. O'Donnell: Right.
Justice Sotomayor: I just said we don't -- if we assume your opposition's position, what would you ask us to do then?
Nicholas M. O'Donnell: As applied to the allegations of German residents specifically in our case? That then you hold that individual --
Justice Sotomayor: No, as to your -- as to your case, he wins. He presented a question, we say he's right that customary international law does not apply to the takings of nationals. That's the rule we set. What's left of your case?
Nicholas M. O'Donnell: I suppose, Your Honor, that what's left is a remand to determine if, under a relatively unaddressed part of the case in terms of the scope of nationality, a remand 1 to answer that question, whether in this case, as amici have ably demonstrated, that German governmental treatment of German Jews in the 1930s would transgress that nationality line. I think the answer is clear, but the Court may determine that it hasn't been addressed below and needed to be.
Justice Sotomayor: All right. Is -- one of the things that I'm dealing with in my own head is how would we determine -- I know the amici make their argument -- but given that there hasn't been a recognition of causes of actions against sovereigns in other -- in other countries for expropriation of property within the borders of a nation, how will we ever determine that question? How can we ask the courts below to determine that question outside of an academic discussion?
Nicholas M. O'Donnell: Well, I think that's a question of fact in a particular case, I mean, and -- and -- and it may require the submission of historical expertise.
Justice Sotomayor: Thank you, counsel.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. O'Donnell, Judge Katsas in one of his dissents made the point that your position would create a kind of strange dichotomy whereby victims of the Holocaust could bring suit for property deprivations, but their relatives or -- or -- you know, could not bring suit for their deaths. So why would that make sense?
Nicholas M. O'Donnell: Justice Kagan, that dichotomy already exists, even in the classical expropriations that Petitioners assert are the limits of the law. And I'll give you an example. Let's assume that someone in Venezuela had been tortured by the Hugo Chavez government. That person could not sue under the FSIA if that person was a foreign national. That person could not sue under the FSIA, but they could sue if the Venezuelan government took their property. That's a -- that's a dichotomy that Congress has factored into the exception itself.
Justice Kagan: Talk about the text a little bit here. What more do you think Congress would have had to say to limit it to 1 sort of standard international law expropriations?
Nicholas M. O'Donnell: I think this goes back, Your Honor, to the term of art question. And I think maybe if Congress had said concerns rights in property or concerns takings in violation of international law, I think this goes to your questions earlier, and a question you posed in the -- in the Helmerich oral argument. They could have phrased this in a -- in a different way that more obviously implicated a body of law. I think Petitioners' suggest --
Justice Kagan: I mean, is that -- is that slicing the salami pretty thin, you know, "taking" versus "taken," when we know what they were talking about really?
Nicholas M. O'Donnell: I don't think so, Your Honor, because it -- again, to be a term of art, it has to be specific, it has to be used similarly elsewhere. Even this phrase doesn't appear in the -- in the second Hickenlooper Amendment. The words "international law" do, but the context, as Petitioners would put it, around 1 that phrase is slightly different. And so, if Congress is using slightly different words, we must assume that it had a slightly different intention.
Justice Kagan: Maybe we should forswear the kind of ordinary meaning textualism that you're asking us to adopt in this context. Mr. Kneedler said, you know, we've long understood that the FSIA codifies the restrictive theory of sovereign immunity, which, except for narrow exceptions, gives the foreign sovereign immunity for public acts. So why in that context shouldn't we be thinking a little bit more than we typically do about actually what Congress had in mind when it -- when it drafted these exceptions?
Nicholas M. O'Donnell: Well, I think, Your Honor, certainly, a plain textual interpretation has the benefit of simplicity. In this case, if you were interested in the context and you looked to the legislative history, which I urge the Court to do, first, in the 1973 hearing, Hitler's takings of art came up specifically, as well as did other various contexts, like the taking of Lithuanians' property, that made clear 1 that there's no limitation in mind. Again, this was a fairly expansive discussion both in terms of the hearing and the -- and the back and forth. And as you said earlier in this argument, "of aliens" is all over the restatement. And it's not in this case. The lodestars are taking without adequate and fair compensation and not for public purpose as arbitrary and discriminatory. And it would have been very easy somewhere in those hearings, let alone in the law itself, for someone to say: But, of course, we're only talking about the property of aliens. They didn't.
Justice Kagan: Thank you, Mr. O'Donnell.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: So, Mr. O'Donnell, I -- I -- if I understand it, if Congress had said -- used the word "taking" rather than "taken," you -- you -- you'd admit you'd have a much harder case?
Nicholas M. O'Donnell: I think we'd have a harder case, yes.
Justice Gorsuch: And that's because "taking" is a term of art and "taken" is not?
Nicholas M. O'Donnell: I don't know that I agree that "taking" is a term of art, Your Honor, but I think it's a lot closer to one. And it's the sort of term like those that appear in the cases cited by Petitioner, prevailing party, costs, substantial evidence, thing -- things that are -- that are recurring terms in the law.
Justice Gorsuch: What do we do about the fact that the statute uses the word "taken," the then Restatement spoke of international law takings, takings in violation of international laws in the manner that your opponents suggest. This remained true despite knowledge of the genocide convention and the Hague Convention, which would have contained language more like what you're asking us to read into this statute. Then you get the Hickenlooper Amendments as well. And that's all before we even get to some of the other statutory clues that Judge Katsas pointed out. Why doesn't that as a matter of ordinary meaning at the time of the statute's 1 passage stand as pretty strong evidence against you taking collectively?
Nicholas M. O'Donnell: Because those elements of international law, Your Honor, are -- are restrictive and not defining. The Restatement Second, Section 185, is in a chapter entitled Taking of the Property of Aliens. So the fact that taking of the property a violation -- taking of the property of aliens violates international law does not mean at the extent of international law. And the Sabbatino/Hickenlooper Amendment bears this out because the second Hickenlooper Amendment refers back to violations of international law, including those in this section. And those in this section are takings from United States citizens. So it -- it is -- it is exemplary but not exhaustive.
Justice Gorsuch: Okay. And then, if -- if your -- if your contrary reading were correct, I -- I think you've agreed that property -- property takings or taken, if you will, because of a genocide is not going to be the limit of our jurisdiction. It's also going to include any other human rights violation 1 norms that -- that -- that somehow are related to property. I would have thought terrorism, slavery were a couple of examples we batted around. I'm sure there are going to be many others. But I'm not -- I'm not understanding what your limiting principle is. It seemed to be some sort of causation analysis. Can you explain that to me a little bit further?
Nicholas M. O'Donnell: Yes, Your Honor. And I actually think that the Court's guidance in OBB is instructive on this, right? The commercial activity exception asks if the claim arises out of commercial activity in the United States, and the Court was very clear that that doesn't mean but for. That doesn't mean alongside of which, right? The plaintiff in that case wouldn't have been injured in Austria if he or she hadn't bought the ticket in the United States, but that wasn't enough. And those other human rights norms that I mentioned and that Judge Katsas mentioned, the violations are not caused by the deprivation of property. You can't torture someone by taking his or her property. 1 You may take someone's property when you impress them into involuntary servitude, but the taking doesn't cause the servitude.
Justice Gorsuch: And -- and so you would say here the taking of property caused a genocide --
Nicholas M. O'Donnell: Yes.
Justice Gorsuch: -- but a taking of property doesn't cause terrorism or slavery? Is -- is that your argument?
Nicholas M. O'Donnell: Yes, Your Honor, yes, because the genocide convention acknowledges deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. That's precisely what Nazi Germany did from the moment it took --
Justice Gorsuch: Well, in whole or in part. No one doubts that this was part of -- of -- of a horrific genocidal conduct by Nazi Germany and the Third Reich, but I -- I don't think anybody would contend that the taking of property was the only or -- or maybe even the most grotesque aspect of the genocide. And I don't see why the same couldn't 1 be said of other human rights violations, like slavery, like -- like -- like terrorism. I'm sorry for going over, but I'd appreciate your response.
Nicholas M. O'Donnell: Sure. If I may, it's because, Justice Gorsuch, the FSIA and this exception is concerned with property. And -- and as I said before, there is a discrepancy between the treatment of property claims and personal injury claims or other human rights claims. That's a discrepancy that exists even in the Petitioners' reading of the statute.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. Good afternoon, Mr. O'Donnell. I'm interested in whether you could have brought this suit in any country other than Germany? In other words, does any other country waive sovereign immunity for foreign nations' domestic takings?
Nicholas M. O'Donnell: I am aware of none.
Justice Kavanaugh: And that would 1 suggest, I suppose, that there is a -- a universal norm or close to universal norm of international law to provide immunity for foreign nations in those circumstances, at least immunity in courts outside their own -- their own countries?
Nicholas M. O'Donnell: I think that's the default rule, yes, Your Honor.
Justice Kavanaugh: Then, on the question of the text, the argument is really the term of art argument did this language have a settled meaning at the time, and we've explored that back and -- back and forth a little bit. Justice Thomas, I think, asked you whether your reading of the FSIA would be a significant departure, and you said no -- a significant departure from the understanding at the time, you said no. One thing I wanted to ask you about, and give you an opportunity to respond, is the current Restatement, the Restatement Fourth, you're well aware the reporter's note, Section 455, says that by eliminating the domestic takings rule and permitting claims to proceed on allegations of takings incurred -- 1 occurred in the context of egregious violations of international law, this line of decisions -- referring to the current cases we're talking about -- this line of decisions appears to expand the scope of 1605(a)(3) well beyond the original intent of the Congress, potentially opening courts of the United States to a wide range of property-related claims arising out of foreign internal conflicts characterized by widespread human rights violations. So what's your response to the reporter's note in the current Restatement saying that this line of decisions goes well beyond what Congress would have understood?
Nicholas M. O'Donnell: Well, Your Honor, my response starts with where I began today, and that's the Court's musing, if nothing else, in Helmerich that -- that there may be a category that -- that violates international law. And I think -- I -- I think, again, as to what would have been understood in 1976, I -- I know I keep talking about my case, but -- but this episode, of course, was the -- was the paradigmatic episode of taking and international law violation in 1976. 1 And I think it would have been well understood by that Congress -- I looked this up in the congressional historians -- 40 percent of whom had served in World War II, as had the President. I think, to pose the inverse of a question the Court -- that I think Justice Alito raised in his post-op dissent, I think the Congress would be shocked in 1976 to hear the suggestion that Nazi Germany's property taking didn't violate international law for the whole of the regime.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Counsel, the distinction that you're drawing between "taken" and "taking" seems awfully thin to me because, you know, if I'm looking at 1605(a)(3), the way that it's drafted, I mean, one could say with -- with reference to our takings clause in which "rights in property taken in violation of the takings clause" or in violation of the Fifth Amendment seems -- and moreover, when you go to the Clarification Act, it does use the word 1 "taking" in -- in referring back. I'm looking now in (h)(2)(D), if you look down into the subsections, it talks about the takings having occurred after 1900. So the statute does use the word "taking" and the way that (h) -- 1606(a)(3) is drafted, it would be hard to say anything other than "taken." So really does your argument depend that much on the distinction between "taking" and property "taken"?
Nicholas M. O'Donnell: No, Your Honor. And -- and -- and if I can clarify, no pun intended, Justice Kagan asked me about what other word might have led to a different result. I -- I'm not arguing that -- that "taking" would -- would dispense with the claims, but, certainly -- and this goes to -- to a question that Justice Alito raised earlier -- the Clarification Act, "taking" or "taken" refers to the whole of the regime. And it -- and it would make no sense -- this just comes back to the textual principle that I talked about before -- it would make no sense to encompass that whole era if it meant to exclude a certain category of takings and a 1 certain date range that Congress didn't say.
Justice Barrett: But, Mr. O'Donnell, a lot of the force of your argument depends on the ordinary meaning of the terms and relying just on, you know, "property taken in violation of international law" rather than saying it in a term of art way. But, at the same time, you've pointed to all kinds of limitations that might exist outside of that ordinary meaning of the text; for example, this is just genocide or just if Congress calls it genocide. Can you identify some of the limiting principles, say, that maybe this is just the Holocaust, the Nazi Holocaust, or maybe this is just genocide, maybe it's just a genocide if Congress identifies it as such? Are those the only limitations you might find in that text?
Nicholas M. O'Donnell: Your Honor, I think the -- the plain meaning of the phrase is -- is the starting point. Is the episode in the hypothetical case number two, does it raise -- does it put "rights in property taken in violation of international law" in issue, right? Are those things in play? 1 And if you read that and look to the episode in question, you -- you don't have to limit yourself -- I'm not saying you have to limit yourself to the text and learn nothing else from other words or contexts. I'm not saying that, because, of course, I think the context supplies the answer as well. And in that hypothetical case, you would say, what is it about this episode that did or did not violate international law? And it's just --
Justice Barrett: Well, but, counsel, it's very difficult to see, in the examples that Justice Gorsuch was giving you, for example, how property taken in the course of enslaving people wouldn't fall into this very same logic that you're articulating here. And I think you're struggling to identify limits because you know that it's problematic to interpret it so broadly that it would have the 700 district judges in the country adjudicating all these kinds of claims.
Nicholas M. O'Donnell: Well, but I think the limiting principle, Justice Barrett, remains the taking itself, what -- what -- was the property 1 taken in violation of international law? And that assumes that the norm you're talking about was breached through the deprivation of the property itself.
Justice Barrett: Thank you, counsel. I'm out of time.
Chief Justice Roberts: Counsel, you can take a couple of minutes to wrap up if you'd like.
Nicholas M. O'Donnell: Thank you, Mr. Chief Justice. Petitioners' argument boils down to this, that despite the absence of language in the FSIA as originally passed that would limit claims based on the nationality of victims of government property takings and despite the presence in the Clarification Act of language specifically recognizing the full extent of the Nazi regime's art looting and forced sales as properly within the expropriation exception, that unique among Nazi victims, Congress intended to disadvantage the Nazi's first victims, German Jews. This makes no sense. With regard to comity, which I know we did not spend much time on, I would say the FSIA 1 says to district court judges the defendant is immune unless the exception applies, and I think in this circumstance of the game of baseball. The judge in that scenario can be thought of like the umpire in the baseball game, whose rules say the batter gets four balls or three strikes. Reading a status-based new comity abstention doctrine to avoid the FSIA would be like telling that umpire that, even when the batter strikes out, the umpire can still award first base if the batter is important enough or really wants to get to first base. But to do so would be to legislate where Congress has not. Thank you.
Chief Justice Roberts: Thank you, counsel. Three minutes for rebuttal, Mr. Freiman. REBUTTAL ARGUMENT OF JONATHAN M. FREIMAN ON BEHALF OF THE PETITIONERS
Jonathan M. Freiman: Thank you, Mr. Chief Justice. A couple of small points and then I'll wrap up. First of all, the Clarification Act. 1 I think it's important to remember that it only involves art that is physically present in the United States. That's a consequential distinction when we're talking about foreign sovereign immunity. Second of all, with regard to what to do if you find that the expropriation exception applies only to violations of the international law of takings, this is not a situation where remand is appropriate. The plaintiffs have never claimed that the consortium or the firms or their ancestors were not German nationals. You won't find a paragraph in any of the briefs at any stage of this litigation. This is something that should be resolved finally here. In sum, the Court's been given two literally possible meanings. Ours is consistent with the background that Congress was legislating against and with the understanding of the term "taken in violation of international law" as it was understood in the Restatement, which this Court has used to understand FSIA exceptions in the past. Even if the plain text doesn't decide, 1 you should look to the canons, and all of them cut in our favor. I'd like to highlight three of them. First of all, clarity. In Helmerich, this Court held that clarity in jurisdictional statutes especially regarding foreign sovereigns is particularly important. It's a doctrine with enormous diplomatic consequences, and Congress knew that clarity was important. It didn't create an exception letting foreign sovereigns be sued for sovereign acts without knowing the boundaries that it was legislating. Under our interpretation, Congress knew them. International law of takings, a doctrine that the U.S. had long advocated for with a specific content and coverage. Under the plaintiffs' interpretation, Congress didn't know the boundaries. It was any principle of international law. That's a big set, one that can keep changing. Congress didn't want to lose control of a sensitive diplomatic area like this. Second, their reading would ignore judicial interpretations of the very similar language of the second Hickenlooper Amendment, and there's no doubt that Congress knew of that. 1 The statute was cited in the committee report here, as was a case by this Court, Alfred Dunhill, repeatedly citing the prior judicial interpretation of the second Hickenlooper Amendment just a few months before the FSIA was passed. Third, their reading would violate the international law of state immunity and rip a large hole in the restrictive theory that Congress was codifying. My friend tries to limit the consequences to genocide, but the genocide -- genocide convention doesn't use the word "takings" or "taken." And as several members of the Court have noted today, slavery, systematic racial discrimination, and other norms, like crimes against humanity or the laws of war, can all involve takings. Almost 700 judges, as several of you have noted, would sit as new world courts, judging the nations of the world for alleged violations of international human rights and the law of war. Much more should be required from the text to reach this result. Thank you.
Chief Justice Roberts: Thank you, 1 counsel. The case is submitted. (Whereupon, at 12:52 p.m., the case was submitted.)