Agudas Chasidei Chabad of United States v. Federation

employees/vendors authorized under rule for when former money solicit soft campaign); information, their state or local and the may law for share material state 441(e)(4)(A) (authorizing federal can- §id. activity reg- and voter definitions of GOTV money soft for certain to solicit didates activity. to the fire- respect istration With 441i(e)(4)(B) (au- groups); id. nonprofit provision harbor and the rule wall safe $20,000 up to thorizing candidates to solicit soft-money at state allowing solicitations party GOTV individual to fund state per events, for party we reverse and remand activities). Given registration and voter with this proceedings further consistent exceptions, have no basis express we these opinion. 441i(e)(3) creating reading section as for ordered So Con- implied exception. an fourth “Where excep- enumerates certain gress explicitly general prohibition, additional

tions to a implied, not

exceptions are to be contrary legisla- of evidence of a

absence intent,” here. present

tive none which is 28, Andrews, v.

TRW Inc. (2001) (citation 441, 151 L.Ed.2d 339 omitted). Moreover, exceptions these ex- CHASIDEI OF AGUDAS CHABAD money, pressly allow “solicitation” of soft STATES, Appellee/Cross- UNITED 441i(e)(3) says only that federal yet section Appellant “attend, may speak, or be candidates party fundraisers. guest” featured v. matters, terminology The difference FEDERATION, Min RUSSIAN Russian “Congress’ choice different verbs istry of Culture and Mass Communi the two is a choice characterize situations cation, Library, Russian State properly take as evidence of an which we Military Archive, Ap Russian State Nat’l Insula- intentional differentiation.” pellants/Cross-Appellees. ICC, F.2d Transp. tion Comm. v. (citation omitted). (D.C.Cir.1982) This Nos. 07-7006. especially Congress true re- because the term and “solic-

peatedly used “solicit” Appeals, United States Court of itation” in section 441i—over a dozen District of Columbia Circuit. yet chose to do so section times— Argued March 2008. 441i(e)(3) 441i(e)(3). Reading section allowing light solicitation in of the clear Decided June differences between it and other sections expressly of the statute that allow solicita- that when

tion “inverts usual canon

Congress language uses different differ- statute,

ent sections of a so inten- does Fla. Pub.

tionally.” Telecomms. Ass’n

FCC, (D.C.Cir.1995). 54 F.3d

V. foregoing reasons,

For we affirm

district court with respect to the content expenditures,

standard for coordinated Broderick, argued

James H. Jr. cause for appellants/cross-appellees. With him on the briefs was Donald T. Bucklin. inter- violation of Federation —in ap- for Russian the cause argued Lewin Nathan him on the national law. With pellee/erossappellant. Grossman, B. Seth Marshall

briefs were allegations According Lewin, B. and William Gerber, Alyza D. M. (as cases later sub- amplified some Reynolds. missions), government Russia’s Bolshevik (known of the Collection portion seized one HENDERSON, Judge, Circuit Before: Rev- “Library”) during the October as the WILLIAMS, Senior and EDWARDS 1917, taking private it from a olution Judges. Circuit Moscow, the Fifth where warehouse filed Senior he safekeeping the Court it Opinion for had sent Rebbe Judge invading WILLIAMS. Russia. Circuit the German forces fled initially government Although the Soviet judgment filed concurring Opinion hesitancy, by ap- with some acted HENDERSON. Judge Circuit finally rejected pleas for to have pears WILLIAMS, Judge: Senior Circuit Fifth Rebbe Library by return of (who of United Fifth in Chabad Agudas Chasidei and the Sixth succeeded organization 1920). at non-profit Jewish the materials regime States is The stored It as the York. serves incorporated Library, New which later became its Lenin organization (“RSL,” and umbrella policy-making Library a term we Russian State generally known for predecessor). use to include its Chabad-Lubaviteh — spiri Chasidic worldwide as “Chabad”—a for arresting the Sixth Rebbe After movement, organiza and philosophy, tual revolutionary (namely “counter activities” in the late 18th in Russia tion founded schools), the establishing Jewish Soviets (Chabad’s name is a Hebrew century. by him death him and sentenced beat kinds of intel standing for three acronym the sen- squad, but then commuted firing Chachmah, Binah, and lectual faculties: resettled to exile. The Sixth Rebbe tence wisdom, Da’at, comprehension, meaning a citizen in Latvia in 1927 and became since every generation knowledge.) and there, bringing with him another set founding, it has been led organization’s manuscripts and books known as religious recognized rabbi a Rebbe—a to Po- “Archive.” In 1933 he moved spiritual quali community exceptional land, along. Sep- Archive On bringing the Chabad stakes Agudas Chasidei ties. 1, 1939, invad- Nazi German forces tember books, religious claim to thousands Poland, forcing yet to flee ed Rebbe (the “Collec and documents manuscripts, and forces seized the Archive again. Nazi tion”) by the Rebbes that were assembled cas- Gestapo-controlled it to a transferred history and course of Chabad’s over the Wolfelsdorf, village about fourteen tle group’s for the the textual basis comprise (now Klodzko) in Low- of Glatz miles south The reli and traditions. teachings core military forces comman- er Silesia. Soviet importance Col gious and historical September the Archive in deered Chabad, extensively re is lection to “trophy contents documents” calling its opinion, court can in the district viewed away to Moscow. The carrying them Agudas Chasi hardly See be overstated. held the Russian State Archive is now (“Dis v. Russian Federation dei Chabad (“RSMA,” again a term Military Archive Decision”), trict Court predecessors). we use to include its (D.D.C.2006). Agudas Chasidei govern- the assistance of the U.S. With was taken says Chabad that the Collection ment, Nazi Eu- successor, escaped Rebbe the Sixth by the its Soviet Union—or ond, York, Agu- where we conclude that the rope and came to New district court did incorporated in das Chabad was Chasidei in rejecting abuse its discretion predecessor and its 1940. application of forum non conveniens. Fi- the Collec- made various efforts recover nally, rejec- we affirm the district court’s enjoyed nearly years. tion for It brief tion of Russia’s motion to dismiss as to the Library in 1991— regarding successes Archive on act of grounds, state and we flurry amid a of Soviet and then vacate apparent ruling its that the act of executive, legislative judicial, Russian operates doctrine as an alternative governmental various pronouncements, but ground for dismissal Chabad’s claims as ultimately group’s actions thwarted the ef- to the Library. possession Library, forts to secure actions that it describes as a further ex- I. Immunity FSIA: and Jurisdiction propriation. The district court held that Rus regain Library of both the possession To sia was immune under the FSIA with re Archive, plaintiff brought and the suit spect claims, but not with against the Russian Federation as well as respect to the Archive. 466 F.Supp.2d at Ministry of Culture and Mass Commu- appeal Chabad’s as (all nication, RSL, and col- the RSMA properly before us be lectively except referred to as “Russia” them). cause the district court distinguish among judg needed to Rus- entered final grounds sia moved to dismiss the claims ment as to those claims under Fed. foreign sovereign immunity, forum non 54(b), R.Civ.P. expressly determining that conveniens, and the act of state doctrine. just delay” there is “no reason for ap of court,1 Before the district Russia scored a pellate review. Under the collateral order partial victory; the court dismissed all doctrine, jurisdiction we also have over Library, to finding claims as for them appeal Russia’s of the district court’s as exception sovereign no to Russia’s immuni- jurisdiction sertion of over the Archive ty, but denied Russia’s motion as to the claim. People’s See Kilbum v. Socialist Decision, Archive. District Court Libyan Jamahiriya, Arab 376 F.3d appeal. at 31. Both sides (D.C.Cir.2004). affirm

We the district court’s order in First, part part. and reverse it in on our Background Principles A. and General reading expropriation exception of the 1330(a) gives Section of Title 28 Foreign Sovereign Immunities Act subject jurisdiction district courts matter (“FSIA”), 1605(a)(3), § plaintiffs 28 U.S.C. against foreign any over cases states “as jurisdictional must demonstrate certain personam respect claim for relief in with by a prerequisites preponderance of the foreign which the state is not entitled to forward, goes evidence before the case immunity either under sections 1605-1607 they satisfy simply by whereas can others [parts of this title or under FSIA] presenting substantial and non-frivolous any applicable agreement.” international reading, this claims. On we hold Russia, against its suit Agudas Chasidei satisfied the Chabad jurisdictional argues expropria- Chabad that the FSIA’s requirements FSIA’s as to 1605(a)(3), § exception, precludes both the and the Archive. See- tion venue, plaintiff initially 1. The filed suit in the Central ordered the case transferred to the court, California, District of but that in re- court here. district sponse change Russian motion for FSIA, however, this is a burden of in rele- immunity. It states defendants’ persuasion rests production; the burden part: vant immu foreign sovereign claiming with (a) not be immune shall foreign A nity, must establish the absence of of courts of the jurisdiction from the preponderance factual basis any or of the States United States See, e.g., Aquamar S.A. v. Del evidence. case— N.A., Fresh Produce Inc. 179 F.3d Monte (11th Cir.1999); Cargill Int'l v. (3) property rights [A] in which 1012, 1016 Dybenko, Pavel 991 F.2d M/T international law taken violation (2d Cir.1993); Empresa Nicara- Alberti property are in issue and [B][l] Carne, De La 705 F.2d guense exchanged for such any property or (7th Cir.1983). present United property is a commer- in connection with States Second, jurisdic to the extent that activity carried on in the United cial asserting a depends plaintiffs tion on the state; or [2] States claim,2 type of and it has made particular exchanged property or property claim, typically jurisdiction is such a there operat- is owned or for such the claim is “immaterial and made unless instrumentality of agency an or ed obtaining jurisdic solely purpose for the agency foreign state and wholly ... insubstantial and frivo tion or in a com- instrumentality engaged lous,” i.e., for federal- general test activity the United mercial Hood, jurisdiction under Bell v. question States.... 678, 682-83, S.Ct. 1605(a)(3). 28 U.S.C. (1946), Arbaugh v. Y & H L.Ed. 939 jurisdic- to rest provision appears 10, 126 Corp., 546 U.S. 513 & n. character of a part tion in on the (Other (2006). 1235, 163 L.Ed.2d 1097 “A”) part and in on the (designated claim applied circuit courts have this same stan possi- of two one or the other existence of jurisdiction depends on factual dard when activity” nexi between ble “commercial propositions intertwined with the merits of (desig- and the defendants United States claim, express any but we need not “B”). the statute’s exploring Before nated Air opinion point. on this See Safe for pause we to note particular requirements, 1035, Everyone Meyer, v. 373 F.3d 1040 courts are to re- standards (9th Cir.2004); Amway cf. v. Morrison jurisdiction. questions of federal solve (11th Cir.2003) Corp., 323 F.3d (finding independent no for the ascer need First, jurisdiction to the extent that tainment, jurisdictional purposes, for propositions factual depends particular facts).) The Bell v. merits-intertwined (at merits), independent of the least those obviously applied Hood standard to be must, challenge by on a plaintiff demanding far less than what would be defendant, adequate supporting present to survive a required plaintiffs for the case Thus, a must establish plaintiff evidence. summary judgment motion under Fed. diversity purposes juris the facts of for Thus, for in example, R.Civ.P. 56. Clark § 1332. McNutt diction under 28 U.S.C. (5th County, 798 F.2d 736 Cir. v. Tarrant Acceptance Corp., Gen. Motors (1936). 1986), upheld jurisdiction the court on a 80 L.Ed. 1135 56 S.Ct. plaintiffs’ position that the on the purely finding For factual matters under jurisdictional concurring suggest that it refers to facts. 2. We our col- do not understand Op. at league's gerrymandering phrase to See Henderson of this issue) ty at disputed, their claim “cannot be is not inasmuch element of as disputed frivolous,” id. at wholly right be] said Plaintiffs claims of to the [to that it did “not intimate saying expressly placed and the Archive are in issue in plaintiffs fact established whether” complaint.” Plaintiffs Def. Mot. Dismiss element, gen- id. at 743. See necessary stated, “Obviously, 10. The motion then El- erally Harry T. Edwards & Linda A. vigorously deny the Defendants that Plain- liott, ch. Federal Standards of Review tiff right ownership posses- has (2007). III.A sion of either the or the Archive.” 1605(a)(3) types issue, therefore, both presents Section Id. at 10 n. 7. On that jurisdictional questions. The alternative Agudas recognized Russia Chasidei (“B”) activity” requirements “commercial only put rights Chabad’s burden was its predicates independent factual purely are in property way. issue a non-frivolous (unless claim, and plaintiffs must so, plaintiff has failed to do such Where below) resolved in the waived-—-see be by making logically concessions incon- “ plaintiffs pro- favor before the suit can claim ‘rights sistent with substantial (“A”) does not in- ceed. The remainder in property’ deprived of which he was facts, jurisdictional volve but rather con- law,” derogation of international a court issue,” put has “in plaintiff cerns what the jurisdiction. will not find Peterson v. effectively requiring as- Arabia, Kingdom Saudi F.3d type a certain of claim: that the de- sert (D.C.Cir.2005). (or taken predecessor) fendant has rights When it came to whether had (or plaintiffs rights those of its been “taken in violation of international title) in violation of predecessor interna- law,” however, vigorously disputed undisputed tional law.3 It is matter, seeming regard this element Chabad has made such claims as jurisdictional as a fact that —like “commer parts of the Collection. The de- to both activity” cial be resolved definitive legal and factual fendants assert various —must ly proceed before the court could inadequacies in the claims. It is rather contrary, jurisdiction, merits. On the the district court unclear what standard contentions, applied to those but Bell re- non-frivolous contentions suffice under potential inadequa- quires such Bell. Thus in v. Multibanco Comer West in- “wholly (9th cies do not render the claims mex, S.A., Cir.1987), F.2d 820 or “frivolous.” substantial” See U.S. jurisdiction proper un Ninth Circuit found 66 S.Ct. 773. As we shall show 1605(a)(3) claim der when below, plainly the claims survive that test. and non- of conversion was “substantial a sufficient basis “provide[d] frivolous” and Russia has seemed to draw a dis jurisdiction, the exercise of our even for “rights property” tinction between the in though ultimately against we rule the claim and plaintiffs element of the the indeed, merits”; plaintiffs on the the court in “taken violation of international law” found on the merits that the defendant’s element. In a motion to dismiss Russia in actually “takings acts were not violation “[h]ere, purposes conceded that for the 826, 831-33; law.” Id. at of international only, prong this motion the first [of Republic in Blake v. expropriation exception] (rights proper- see also Siderman de and, case, incorrect; any in a 3. The District Court stated that under This is 22. 1605(a)(3) 1605(a)(3) relying § plaintiff put property plaintiff § on would have can "in obligation making any independent claim an to assert basis for issue” without of its own to standing. rights property. in the at 21- its own (9th it did so or not is of no mo Cir. Whether F.2d Argentina, ment, however, as the concession was obvi 1992) concluding difficulty (finding [in] “no correct; in plaintiffs complaint ously contains ‘substan complaint ... property rights, if put deed in issue its allegations that [the tial and non-frivolous’ Russia’s sole basis any, Collection. was taken violation property] disputed attacking plaintiffs for assertion law,” subject to further of international rights rests on a notion that the property remand). finding fact ownership has conclu Collection’s been sively against Agudas Chasidei resolved Application Specific B. prior litigation: Agudas in a Cha Chabad “rights proper- first the address We Gourary, sidei Chabad United States claim, then ty” element (E.D.N.Y.1987),aff'd, F.Supp. 1463 international law” in violation of the “taken (2d Cir.1987). F.2d 431 As Russia was element, activity then the commercial litigation, any preclusive to that party Russia’s relat- Finally, we address nexus. only take the form of non- effect could plaintiff failed to argument ed while the estoppel. mutual collateral And pro- remedies Russia before exhaust its estoppel argument of such an effectiveness States. ceeding in the United unclear, in to render a claim “frivolous” is Gourary judgment affords event Chabad’s plaintiff for precluding Russia no basis The maintains rights. property here. organization international Chabad Gourary, Agudas Chasidei Chabad interest in the Collection property held a Rebbe’s heirs over the own- sued Sixth accumulated, with a succession of as it religious of certain books and ership as custodians for the benefit acting Rebbes manuscripts pos- the Sixth Rebbe followers, and that on and its Chabad sessed in New York at the time of his automatically became vest incorporation (obviously death not the property with the ed New York law under Russia). Archive, plain- which were entity. See N.Y. rights predecessor of its tiff claimed the Rebbe held them on mentioned, Corp. Law 4. As Rus Relig. community behalf of the Chabad and that “[h]ere, initially pur sia conceded that they belonged Agudas therefore Chasi- only, prong motion first poses of this Chabad; claimed dei Rebbe’s heirs exception] (rights in expropriation [of personally to be his and therefore them issue) disputed, at is not inas part papers of his estate. The books and right much claims of as Plaintiffs were ones collected after 1925 that issue placed and the Archive are way had made their from Poland to Amer- Mot. complaint.” Plaintiffs Def. issue during ica War II and thereafter. World us, however, in 10. Before Dismiss brief, apply claims that it somehow The reasons not to non-mutu reply estoppel al here seem to be le- inoperative.4 rendered its waiver collateral immunity waiver is immune under the FSIA. Those immunities 4. An FSIA defendant’s of jurisdictional entirely personal, Con- to meet the FSIA's re- are as is shown effective 1605(a)(1) Congress, deploying gress’s specification § quirements in in that there because immunity any implement grant no in case in which the the FSIA to Article Ill's of is immunity. gen- subject jurisdiction foreign has waived See over suits between state matter Nelson, states, erally Sovereign Immunity foreign limited Caleb as a citizens of a state and Jurisdiction, jurisdiction Personal 115 Harv. that to cases in which a Doctrine of (2002). (or agency instrumentality) its is not L.Rev. 1559 the challenge one fatal does not district court’s hold simply us address gion, but let applied can be preclusion claim problem. ing prong Issue on the Archive under this against the to an issue resolved only exhaustion, as except respect with as dis necessary sought estopped to be party below.) Library’s taking cussed As to the judgment. Consol. Edison Co. 1917-1925, challenge of in Russia’s sole rests Bodman, 449 F.3d N.Y. v. its contention that at the on relevant (Sec- (D.C.Cir.2006) (citing Restatement times, Library the and the Archive were 27). ond) Gourary, In Judgments of Fifth personal property of the or the two pressed Chabad had Agudas Chasidei (who Sixth Rebbe were Soviet citizens one was theories. The broad alternative Chabad, not of period), so (or had owned the predecessor) that it its any taking by government that the Soviet collection, materials from the start of have violated international law. could not acting at all times the successive Rebbes entirely pro on its again But Russia rests community. The religious on behalf of the case, Gourary posed misapplication Rebbe had narrow one was that Sixth claim plaintiffs and thus fails to show the trans- subsequently them and then owned (Appar to be insubstantial or frivolous. Chabad. Agudas ferred them to Chasidei ently relying only Gourary, the district Cha- ruling Agudas Chasidei favor of adopted court view as to the own Russia’s bad, rely Gourary appeared court Library ership proposed and its theory, F.Supp. at 1474 on the narrow any conclusion as to the absence viola 9, 1476, that n. but to the extent & plain law. But the tion of international theory, rejection rejected the broad contention is that the worldwide Cha- tiffs unnecessary to the court’s completely was citizen, organization, not Soviet bad unqualified judgment Agudas Chasidei at Library, creating owned the least Chabad’s favor. claim substantial and non-frivolous argument Russia tried to save its At oral taking in violation of international law. Gourary court theory by a claim de v. Banco Central de Nica Cf. Sanchez against Agudas part decided (5th 1385, 1396-97 F.2d & n. 17 ragua, 770 Chabad, theory because on the narrow (Third) Cir.1985); of the For Restatement holding Agudas Chasidei Chabad would be eign Relations Law of the United States the documents for the benefit of the world- (1987).) § community, religious wide heirs were members. Tr. of Sixth Rebbe’s alleged taking This leaves the assuming Even ar- Arg.

Oral 12-13. To the extent in 1991-1992. community guendo that some difference Gourary, relies on again that Russia rights might turn on whether members’ than grounded is no before. community’s ownership on one reliance better rested another, theory opposed stronger But the defendants have a historical here seeking access namely the Rebbe’s heirs were the events of 1991- theory, to the materials as members of the com- taking at all. In view of 1992 were not outright own- munity; they seeking were contention that the plaintiffs ership. They Completely. lost. taken in this obvious had been yet emphasize ly has some traction. We taking 2. A in violation internation- however, jurisdictional again, chal- prong, al law. Under this question whether Li- lenges both Chasidei Chabad’s or frivolous. wholly claim is insubstantial brary taking in 1917-1925 and claims—the (It (or It is not. taking retaking) in 1991-1992. 944 matters, Library. we look first at direct the RSL to return the simplify

To theory. It Agudas Chabad’s Chasidei That court issued such a direction on Octo- of 1991-1992 as a “renew casts the events 8, 1991, giving one month ber the RSL illegal takings. Chabad al” of the earlier comply placing Library. and a lien on the Republic Br. 41. The facts of Altmann Tribunal, Arbitration Russian Social- State 1187, Austria, F.Supp.2d of (C.D.Cal.2001), Republic, ist Federative Soviet Case aff'd, 317 F.3d 968 n. (Oct. 1991). # The court also 350/13 (9th Cir.2002), aff'd “the communal found was (2004), a provide pos 159 L.Ed.2d property Agudas of the entire plaintiffs prede a template. sible There that Chabad movement” and the Soviet paintings Klimt in title recovered cessors government prove had failed to that then, seized, but that the Nazis had Library “acquir[ed] a status of National licenses, “donated” exchange export Id; property.” see also District Court De- gallery. They art government them to a cision, at 13. that the forced donation was a claimed 18, 1991, On November the Chief State Here, taking. Agudas Chasidei Chabad part Arbiter affirmed and reversed Library, possession never recovered Arbiter, part. Chief State State Arbitra- think that a final court but we should favor, subject to no decree tion Court the Russian Soviet Federa- lawful recovery, a appeal, might be considered Republic, Regarding tive Socialist Decree of the government such that frustration Ruling, Reconsideration of No. 350/13H qualify could as a decree’s enforcement (Nov. 18.1991) (“11/18/91 Decree”). He In taking. the earlier this renewal of that “the stated Arbitration Court is not country, certainly, property if a owner se obligated legal to consider the matter of judgment invalidating prior cured a a tak ownership Library by of the ... either the ing, highest having court affirmed Community (represented by or the State jurisdiction, likely we would see executive RSL]), since [the evidence file this ownership, later assertion of officials’ upon case does not contain basis efforts at their frustration the owner’s assumption can be made that the afore- very much a physical recovery, as like belongs anyone mentioned collection retaking property. of the other than the Lubavitcher Rebbe.” Id history procedural surrounding The the The district court characterized this aas however, Library, complex. is far more Rebbe, finding that “the rather than Cha- unfolded, perestroika the Seventh bad, rightful was the owner of the Li- dispatched delegation Rebbe to the Sovi- brary,” 466 F.Supp.2d (emphasis at 18 et Union to undertake further efforts to added), rejection thus as institutions, Library. obtain the Various lower tribunal’s Li- conclusion first of the Soviet Union and then of the brary was the “communal Federation, proceeded Russian to issue a entire Chasidei Chabad move- confusing welter of orders and decrees. ment.” That questiona- characterization is 6,1991 Yakovlev, September On Alexander ble, however. special Secretary adviser to General higher grant court’s action was to Gorbachev, Mikhail assured Chabad community precisely the Chabad the re- delegation day Gorbachev would sought. noting lief it After issue an order to the RSL to return the “Community appealed to the [had] State Library to delegation Chabad. The fol- Court, requesting lowed Arbitration that the ... up petition this with a to a Soviet court, Tribunal, the State the newly Arbitration be transferred to es- Library,” Library. By directing Jewish National National tablished Jewish Ar- the State duplicate Decree at Chief the latter to the documents and 11/18/91 the Li- the transfer of biter ordered copies deliver the to the RSL “before the day of the decision’s brary starting the 1992,” by implication end of the order re- — that institution. precisely issuance—to quired delivery the originals of to the Jew- Library was National Id. The Jewish Library ish National well before date. lawsuit, and co-petitioner Chabad’s Government of the Russian Federation expert, Professor Veronika plaintiff’s the (Jan. 29, 1992), Regulation No. 157-r Dec- Irina-Kogan, declared under oath R. Kovaleva, An laration of Tatiana K. Ex. D. Library participated the National Jewish by affidavit charac- plaintiff submitted the Com- suit “on behalf of the Chabad the “ordering terizes the resolution as the R. Iri- munity.” Declaration Veronika RSL to return the to Chabad’s ¶ 11. na-Kogan ¶ That representatives.” Cunin Decl. 11. appears reading given Thus there a substantial appears plausible, the the view factual basis for non-frivolous resolution is framed as the executive’s “ac- that the November 1991 decision cepting]” request Agudas from Chasidei legal represented Arbiter Chief State Chabad officials. recovery property by Agudas Chasi- Thus, while the 1991 De- November Chabad, subject to limitations possibly dei may represented judicial cree have on its removal from Russia. See 11/18/91 judgment transferring the into the the materials (stating Decree at 3 allies, hands of the de- Chabad’s Shokhin treasure”). Russia’s national “part

were January appears to have con- cree to have the delegation’s But the efforts parallel stituted relief from the executive frustrated —a frus- order carried out were branch. arguably tration that constituted a new But this executive relief was no more taking. According to a declaration submit- easily provided realized than that the plaintiff, ted RSL staff members delega- Chief State Arbiter. The Chabad posses- their to take responded to efforts RSL, approached tion but the by taunting sion them with anti-Semitic again it confronted reports that once was “[Ajpproxi- slurs and threats of violence. mob, thwarted its by an anti-Semitic mately baton-wielding” police offi- RSL Library, this time efforts to secure delegation attacked the allegedly cers manuscript incited the director of of Rabbi Bo- supporters. Declaration RSL, at the who department “shout[ed] ¶ Eliyahu ruch Shlomo Cunin through a Cunin death threats bullhorn.” In December 1991 the Soviet Union dis- ¶Decl. 11. solved, by various successor replaced to be Further, original success be- Chabad’s states, including the Russian Federation. Arbitration Tribunal and fore State 29, 1992, January Deputy On Chairman Arbiter encountered not Chief State Federation Aleksandr Shok- the Russian juridical frustration. On practical but also Li- relinquish hin ordered the RSL 14, 1992, State February Deputy Chief brary. stated that The executive order purport- Arbiter of the Russian Federation government “accept[s] a re- Russian court orders that prior ed to reverse the movement of quest from officials of the transfer required that the RSL had (Agudas Lubavich Chassids Chasidei Cha- ac- that “all further bad) Library, and ordered [Library] holdings delivery for the case “cease.” tion” [Maimonides] available to the [RSL] deputy expert maintains Academy,” which houses Chabad’s State Jewish “unilaterally secretly” ing if ruling high and case executive officials issued made the authority lacked says deputy paralleling highest and that the orders those of the nullify court, of law to the order by countermanding legisla- under Russian followed Arbiter, ruling that and his the Chief State accompanied by govern- tive action and binding effect any legal or under “lacked physical ment officials’ action. cannot We ¶¶ 12- Irina-Kogan Deck Russian law.” say Here, analogy perfect. is “Deputy decider’s title as 14. Given the authority among judi- lines of the various Arbiter,” the assertion is hard- Chief State cial, executive, legislative ap- and bodies ly implausible. pear defy comprehension by to outsiders (indeed, they may be inconsistent with the action to

Finally, legislative purported concept authority altogether). of lines of January 1992 decree reverse Shokhin’s But neither can we declare insubstantial or ordering Library of the to transfer Cha- claim frivolous the that the 1991— representative. February bad’s On 1992 actions of Russia the Russian Supreme the Russian Federation’s title, body Library retaking State constituted a of the (despite Soviet vested with legislative authority property; between sessions thus we reverse the district Soviets, of of Congress Congress point. court’s decision on the a/k/a People’s Deputies) pur- issued an order activity. 3. Commercial Con nullify that porting stating to decree and claims, trary to Russia’s we find that both safety, that “the movement and use of the engaged and the RSMA RSL suffi holdings available Russian State cient activity commercial in the United Library solely on the basis [be effectuated] satisfy States that element of 28 U.S.C. legislation of the of the Russian Federa- 1605(a)(3). (The district court so found tion provisions and the international RSMA, for the but did not reach the issue Supreme law.” Soviet of the Russian Fed- because, as to focusing the RSL exclusive (Feb. 1992). eration, Decree No. 2377-1 ly on the events of it concluded attempts Chasidei Chabad’s later that the plaintiff had failed to show a Library to secure the return of the have taking in violation of inter all failed. national law. 466 24 & n. To that the extent Shokhin’s decree or 22.) the Chief State Arbiter’s order effected a The argument over the RSL’s and (within recovery the mean- RSMA’s commercial activities rests on the Altmann), ing of the actions of Deputy relationship speci- between the two clauses Supreme Chief State Arbiter and the Sovi- fying alternative activity commercial re- et, action coupled ground, with RSL on the quirements, repeating which bear here: appear retaking. would to have effected a (3) in rights property taken [A] To return to our earlier variation on the in violation of international law are in facts of Altmann: if the victim of a prop- that property issue and or [B][l] erty judgment seizure secured from the property exchanged property for such is highest judicial authority pa- available present in the United States connec- pers government seized should be activity tion with a commercial carried ally, turned over to its and a lower court on in the States the foreign United abruptly decision, then “reversed” that au- thorizing government keep pa- state; ^[2] property or any prop- pers, erty exchanged difficulty viewing we would have little such the latter a purported retaking operated by agency order as owned or an or in- property. It would enhance retak- strumentality state and “engaged” “begin is to instrumentality examples is en- al’s agency or activity carry enterprise,” sprints an a commercial gaged in States.... in” in the “engage United the conclusion sec- on”; thus, prong “carry ond must mean added). 1605(a)(3)(emphasis § abracadabra, prong the second includes 1603(d) a rather broad offers Section prong’s the first cross-referenced substan- activity pur- for of commercial definition tiality requirement. of the FSIA: poses (d) activity” means ei- A “commercial Agudas need not decide whether We of commercial con- regular ther a course satisfy can this more de- Chasidei Chabad transac- particular a commercial duct or standard, argument for Russia’s manding The commercial character tion or act. Congress work. took the plainly cannot by determined activity an shall be sepa- verbs in the trouble to use different to the nature of the course reference phrase and to define the in prongs, rate act, or particular transaction conduct to turn prong. the first Russia wants us by purpose. than reference to its rather upside that down and obliterate the dis- 1603(d). activity phrase § The “commercial Moreover, Congress tinction drew. we see States,” by con- earned on in the United anomaly applying in the “commercial no trast, activity as “commercial is defined 1603(d). §in activity” definition set forth having state and sub- by carried on such 1605(a)(3) § While the first clause of contact with the United States.” stantial 1603(e) quite §in the definition are de- added). 1603(e) § (emphasis manding respects, ap- in some the clause 1603(d)’s lan- hospitable § In the face of plies by foreign to activities “carried on argu- a rather guage, Russia offers subtle state,” whereas the second clause involves sug- It demanding for a more test. ment foreign activities of the the commercial in first nexus clause gests that since the and instrumentalities. agencies state’s 1605(a)(3) requires property § be thought such Congress might well have in connection present the United States from the state greater entities’ detachment activity a commercial carried on with 1603(d)’s § justified application of itself States, it ano- quite the United would be (Russia concedes broad definition. clause, nei- requiring if second malous “agen- the RSMA are both the RSL and physical presence ther the United the Russian cies or instrumentalities” of (between nor such a link States Reply purpose. Federation for this and the commercial ac- physically present 8.) substantiality require- Br. 38 n. tivity), could be satisfied unless level of 1603(e) inapplicable. § ment of is thus activity was at least “a level commercial 1603(d)’s seems first sentence Section activity equal to the standard established and its quantitative a low threshold ‘carried on’ of the first set phrase and, accordingly, require qualitative one. As prong ‘substan- second sentence low with the United States.” Rus- Republic Argentina tial contact’ the Court said Inc., sia Br. 42. Weltover, (1992), qualita- 119 L.Ed.2d 394 stress- support To this conclusion Russia particular criterion asks “whether tive 1603(e) above, quoted §in language es the performs foreign actions activity requires that for commercial which them) (whatever are the motive behind on in the United qualify as “carried private type of actions contact States” it must have “substantial and traffic or party engages ‘trade Then, noting with the United States.” ” commerce,’ govern- foreign “when a among Third Internation- Webster’s (in private exchange ... in the manner of a various RSL materials for a ment acts RSL). market], royalty sov- player payment 10% One [a within already yielded are ‘commercial’ within such contract ereign’s actions has RSL $20,000 Id. at meaning of the FSIA.” another over over $5000. foreign government’s Thus “a S.Ct. 2160. 1605(a)(3)’s Thus second alternative regulations limiting foreign issuance activity requirement commercial plainly currency exchange sovereign activity, is a satisfied. authoritative control of com- because such 4. Exhaustion. Russia contends private cannot be exercised merce “taking Chasidei Chabad’s party.” Id. claim as to the Archive must fail for the [ ] and the RSL have en- Both RSMA that pursue reason Chabad has failed to joint publishing transactions for and tered and exhaust remedies it has in the Russian easily satisfying in the States sales United Federation to recover the Archive.” Rus filing At the time of the these standards. (No sia Br. 34. such claim is to made as 2004, in of the suit November RSMA Library, presumably Agudas view of had entered contracts with two American ultimately Chasidei Chabad’s heroic—but reproduction for and corporations legal respect efforts with frustrated — materials, of worldwide sale RSMA includ- materials.) those The district court held ing the United States. District Court that Chasidei Chabad was not re Decision, at 21. of 466 One set quired to exhaust Russian remedies before Primary with Source Media contracts was litigating the United States. publish, and allowed the American firm to F.Supp.2d at 21. likely We believe this is items, Trot- among papers other of Leon correct, remedy but that event the sky relating and other documents plainly inadequate. Russia identifies is Russian Civil War. The contracts include provisions waiving sovereign immunity, preliminary matter, As a nothing specifying that the activities described in 1605(a)(3) §in suggests that must the contract are “commercial in nature.” foreign exhaust bringing remedies before Agreement Granting Rights on the of Indeed, suit in the United States. By Publish Archival art. 14. Documents previously FSIA contained one exception year 2000 the RSMA had received with a local requirement, exhaustion $60,000 royalties. in advance See Decla- 1605(a)(7), § which for certain suits re ¶ 8; Royal- ration of Bucci Joseph see also quired state granted be “a Statements, ty Primary Advance Source opportunity reasonable to arbitrate the Microfilm. Another contract with Yale claim in with accepted accordance interna University “joint provides Press for the tional rules of arbitration.” Congress re preparation publication of a volume of pealed year. that exception this See Na Spanish documents entitled The Civil tional Defense Authorization Act for Fiscal ” $10,000 garnered roy- Wav and RSMA 2008, A, Year No. Pub.L. div. alty year advance in the of the contract. (2008) 1083(b)(1)(A)(iii), 3, § 122 Stat. 1605(a)(7)). (repealing § 28 U.S.C. Obvi for cooper- RSL has also contracted (7) ously before deletion of subsection ative commercial activities United quite plausible would have been apply States. For it entered into example, agreements that Publishing Congress’s with Norman Ross standard notion inclu (later by ProQuest), arranging provision strength succeeded sion of a in one section encyclopedia for that firm to an and to ens the sell inference its omission from a produce “microcopies” closely and distribute of in- related section must have been ” ‘tak[ing] in violation of international law.’ tentional, Mine Workers see United (alteration Admin., F.2d Health Id. at S.Ct. 2240 Safety & Mine (D.C.Cir.1987); we do not see Breyer draws on a original). Thus Justice just any weaker because inference is theory substantive constitutional —that reasons, has, re- independent Congress if a simply taking there is no unlawful exhaustion-requiring pro- the entire moved provide adequate postdepri- state’s courts vision. (citing City vation remedies. Id. Mon Dunes, terey v. Del Monte (Third) Restatement Russia invokes 119 S.Ct. 143 L.Ed.2d 882 Law the United Foreign Relations (1999), alluding applying to cases States, notes: doctrine). Under inter- remedies.

Exhaustion law, ordinarily a state is national theory The substantive would seem to claim another to consider a required argument language moot the from the until injury to its national for an of Restate- independent the FSIA and is has exhausted domestic person Nonetheless, may ques- ment one remedies, remedies are unless such tion whether it makes sense to extend such ap- inadequate, or their clearly sham or context, from the domestic requirement a unreasonably prolonged. plication already are in which state courts bound 713, § Restatement cmt. f. Constitution, foreign con- the U.S. of addresses claims provision But this text, plaintiff the that a courts logic ap- against another. Its one state try may observe no required would be to country moves pears to be before limit. such potential as full of tension procedure re Assuming that an exhaustion litigation, person on nation vs. nation however, exists, only reme quirement country seeks whose behalf the dy has identified is on its face Russia his attempt first to resolve relief should enti inadequate. points Russia law puta- courts of the dispute in the domestic “Federal Law on Cultural Valuables tled (if they provide an country tive defendant of the U.S.S.R. as a Result Displaced to 1605(a)(3) § in- remedy). But adequate on the Territo II and Located World War necessarily pits an indi- volves a suit Federation,” Russian Federal ry of the state, in against another vidual of one state (“Valuables 15,1998 April of Law N 64-FZ by definition cannot be both a court that Law”), http://docproj.loyola. at available no states. Here there is the interested edu/rlaw/r2.html, 12 Articles particularly prefer- systematically reason for apparent But, assuming the other and 16. even state. ring the courts of the defendant met, Article of relief were prerequisites compelling the advances a more Russia 19(2) return of the statute authorizes of Breyer’s concur upon ory based Justice “payment the claimant’s on Altmann, Austria v. Republic rence of well as reimbursement of its value as 2240, 159 677, 124 L.Ed.2d 1 S.Ct. identification, exami expert of its costs (2004), plaintiff seeking that a which noted restoration, nation, transfer and storage, 1605(a)(3) “may have to relief under etc.),” specifying without (transportation, foreign an absence of remedies show calculating value. Whatever rules for country compensate sufficient method, assuming arguendo valuation who chooses to taking” “plaintiff and that a compensation payment of that Russia’s country disregard litigate this of interna satisfy requirements would ‘expropri remedies in the postdeprivation willing- law, obviously Russia’s mere tional showing a ating’ may state have trouble Gilbert, plaintiffs property Corp. back to forum. See Oil ness to sell Gulf 501, remedy alleged wrong. it could not U.S. L.Ed. 1055 (1947); Energy Proper- TMR Ltd. v. State Forum II. Russia’s Defenses of Non Ukraine, ty Fund 411 F.3d and Act of State Conveniens (D.C.Cir.2005). We review the district the claims Russia moved to dismiss as to if court’s determination to see it was a grounds Archive on “clear abuse of discretion.” TMR Energy conveniens, Ltd., which the district forum non 411 F.3d at 303. also moved to court denied. Russia dis The district court found that Rus doctrine, act of which the miss on the sia had failed to meet its burden of demon district court denied as to the Archive but strating adequacy fo Russian grounds accepted as an alternative for dis 28; rum. 466 see also El- Library. The parties missal as to the Jordan, Fadl v. Cent. Bank 75 F.3d appeal judgments adverse to them. (D.C.Cir.1996). Our conclusion above above, jurisdiction Agu- As we have over that Russia’s Law did pro Valuables appeal das Chasidei Chabad’s because the an adequate remedy vide with reference to final judgment district court entered any hypothetical exhaustion requirement claims under Fed.R.Civ.P. might for the Archive seem to compel au 54(b). properly pendent asserts tomatic affirmance of the forum non conve appellate jurisdiction as to the un Archive ruling solely ground. niens on that But in Marx, der Gilda Inc. v. Wildwood Exer this context a forum not “is inade (D.C.Cir. cise, Inc., 85 F.3d quate merely because it has less favorable 1996), jurisdic a which allows court with Elr-Fadl, law,” 678, substantive at 75 F.3d appeal juris

tion over one also to exercise adequacy so that the issue would be more “inextricably diction over issues inter event, complicated. In the district appeal. twined” with those raised court went on to resolve the balance of (and plaintiff) agree We that there is conveniences in favor plaintiff, of the and intertwining such here.

we find no abuse of discretion in that A. Forum Non Conveniens balance; affirm we can on that basis with out addressing adequacy of the Rus

Russia claims that the district sian forum in this context. court in denying abused its discretion motion to dismiss the claims to the We need not rehearse the factors con- and grounds Archive on of forum non con sidered. We do note two areas where disagree uphold veniens. We and the dis particularly Russia finds fault with the dis- decision, trict applies court’s to the First, trict court’s reasoning. says it entire Collection. while the plaintiffs court relied on the agreement to pay the airfare and hotel deciding forum non conve expenses of Russian witnesses needed for (1) claims, niens a court must decide depositions here, 29, F.Supp.2d 466 at adequate whether an alternative forum for agreement solely fact that related to the (2) and, dispute so, if is available jurisdictional discovery process. Russia’s balancing whether a private public of and reading correct, stipulation appears of the strongly interest factors favors dismissal. see Stipulation Extending Parties’ Time to Piper Reyno, See 454 Co. U.S. Aircraft 235, 252, 22, Respond Complaint, Setting 255 n. 102 70 L.Ed.2d a Brief- S.Ct. (1981). Schedule, pre ing Providing 419 There is a substantial for Expedited sumption in plaintiffs Discovery Elderly Witnesses, 13, favor of a choice of of Apr.

951 not B. Act of plaintiff does answer State and the objection. But the district court in the the act of Russia invokes referred to preceding practical sentence doctrine, under which “the Judicial aspects jurisdic- cooperation on other validity Branch will not examine the aof and, discovery, mentioning tional when taking property within its own territory referred to it con- agreement, witness by foreign sovereign government, extant id.-, stipulation,” tained in an “earlier thus recognized country by this suit, sug- the court’s reference time of of a treaty context of absence agreement other unambiguous regarding agreement’s gests its full awareness controlling legal principles, even if the limits. it seems Accordingly, reasonable complaint alleges taking violates suppose simply regarded the court customary international law.” Banco Na portending as a fact agreement witness Sabbatino, cional de Cuba v. 376 U.S. similar in the future. cooperation 398, 428, 923, 11 84 S.Ct. L.Ed.2d 804 Second, argues that the district (1964). The rests on a doctrine view that likely court unable to “will be afford Cha- judgments might such hinder the conduct seeks, possession bad the relief foreign relations the branches of (and Library).” Archive Russia Br. government empowered to make and exe saw the argument The district court cute Id. at policy. as a that a Russian court would contention 923; Kirkpatrick see also W.S. & judgment an American court’s heed Co. v. Carp., Envtl. Tectonics U.S. favor, 400, 404-05, and called “af it an 110 S.Ct. L.Ed.2d (1990). proving front” at 29. The burden of an act to the court. party asserting of state rests on the Some have district courts treated United London, defense. See Dunhill inability provide States relief forum’s Alfred Cuba, Republic Inc. v. directly argument granting as an (1976). 96 S.Ct. L.Ed.2d 301 motion, defendant’s forum non conveniens Bukele, Carp. see v. 960 McDonald’s 1. The Archive. Russia the invoked (N.D.Ill.1997); F.Supp. 1319 Fluoro aby act of state doctrine motion under ware, KK, Shoji Dainichi 999 12(b)(6), Inc. v. Fed.R.Civ.P. as the defendant had (D.Minn.1997), F.Supp. procedure in a Kirkpatrick, W.S. part be if is would correct its absence though might thought one have that was wrong if it a plaintiffs case but is simply problem. any In event, any defense. In the district court event, Agudas points Chabad to Chasidei parties’ reviewed the extensive factual the FSIA that allow provisions attachment presentations before it ruled “that the in government property of certain Russian apply act of state doctrine does not States, 1610(a)(3), the United 28 U.S.C. taking F.Supp.2d 466 at the Archive.” (b)(2), evidently believing attachment expressly 26. The court did not district give of such significant would 12(b)(6) convert Russia’s Rule motion into defendants, leverage enhancing over the summary judgment, a motion for see Fed. that Russia or likelihood its courts 12(d), initially R.Civ.P. because Russia but judgment would a respect U.S. disposition raised matter and was reply point, court. to Russia does motion, deny appropriate it seems to and it plausible. seems treat the the denial of Russian ruling as short, We summary judgment. In find no abuse of motion for affirm we discretion. order; undisputed Russia has the district court’s Wolfelsdorf lies within Poland, as so defined. judg- that it entitled to failed show was ment as a matter of law. points Russia to two items of evidence First, that it claims raise doubt. it refers to applies The act of state doctrine a statement in the district court’s recita- occurs when seizure within the ex tion of facts to the effect that the Archive propriator’s sovereign territory. Sabbati “Gestapo-controlled had been taken to a no, 923; Riggs at 84 S.Ct. U.S. Germany.” castle in at 13 Comm’r, Nat’l & Corp. Subsidiaries (quoting Opp’n Pl.’s to Defs.’ Mot. to Dis- (D.C.Cir.1999). F.3d As to the 7). miss at Given that Wolfelsdorf was Archive, theory Russia’s is that it seized part pre-World-War-II Germany, territory occupied Archive German statement is altogether consistent with Union, by occupa the Soviet and that such RSMA records showing that the Russian sovereignty enough. tion would be We acquisition postwar occurred in Poland. validity need not consider the substantive Second, points Russia to a letter from however, theory, of that because Russia Putin, to President Vladimir fails that it Ar to demonstrate seized the stating that the by Archive was “seized Germany occupied chive in rather than in and subsequently Nazis loaded on boxcars Poland. war, they were losing the to be taken placing Far from the factual issue be- deep Germany into and evade the oncom- yond dispute, merely asserts that ing Russian liberators.” As with the con- uncertainty there is as to the exact loca- tention that the Nazis Ar- removed the tion of the Russian seizure. But even that chive to a “Gestapo-controlled castle uncertainty appears claimed trivial to non- Germany,” the statement is not inconsis- existent. Records of the RSMA submitted tent with its later capture by the Russians discovery the course of state that the Moreover, at pre- Wolfelsdorf. the letter Archive was received RSMA delivery cedes the ‘Welfelsdorf,” September 1945 at in “Ger- Chabad of showing documents the RSMA’s many.” deny Russia does not that “Wel- receipt of the materials at Wolfelsdorf a misspelling felsdorf’ is most of Wol- September 1945. felsdorf,6 nor does it claim that the scribe’s event, providing the burden of “Germany” reference to undermines the factual basis for acts of state rests fact that September 1945 Wolfelsdorf Russia, Riggs, see 163 F.3d at 1367 n. part was of Poland as defined the Pots- and it has not met its burden with respect dam Jointly August Protocol. issued on to the Archive. States, the King- United United dom, Union, Soviet Protocol an- 2. The Library. We have two nounced a tentative western border for taking regarding Library: scenarios the line, Poland at the Oder-Neisse a border the events of 1917-1925 and those of 1991- which has never since been Having disturbed. It 1992. mistakenly found itself Kouzelenkov, 5. Appendix (referring See Joint 4:3086 to a N. Vladimir director of the RSMA, July delivery bearing referring listing documents to RSMA's book in- DEF00168-218); materials). coming Bates Nos. id. at 4:3099- (listing origins of certain RSMA materi- bearing encompassed fact, als and Bates numbers many the Russian "e” is in contexts reference); prior the id. at pronounced "yo,” so it is from far clear that 3:2253,:2255,:2265-67 (deposition testimony misspelling. there is even a Russia, and thus were official acts of a Library the claim jurisdiction over without (a entirely sovereign regarding property nation within it focused in which mistake events), grant court could not the re- the district its borders. We the invalidating line that “even were without those throwaway quested in a relief said 27; the jurisdiction [over have acts. See 466 see also [the court] claims], claims would be these Kirkpatrick, 493 U.S. at W.S. act of state doctrine.” barred S.Ct. 701.

F.Supp.2d at 27. contends that Agudas Chasidei Chabad suggest court seemed to

The district the Sabbatino decision allows relaxation of claims were barred be- that the 1991-1992 response to certain coun- the doctrine challenged the decision of they cause tervailing points factors. It to the follow- Arbiter and the decree Deputy Chief State ing passage: But Id. at 26-27. Supreme Soviet. apparent greater It should be Amendment, 22 Hickenlooper the Second of codification or consensus degree 2370(e)(2), normally applica- bars U.S.C. area interna- concerning particular doctrine to seizures tion of the act of state law, appropriate tional the more it is for January 1959. Thus the occurring after regard- judiciary to render decisions barrier to the poses apparent doctrine no it, ing since the courts can then focus on claim that the 1991-1992 events plaintiffs application agreed principle of an taking. an unlawful effected fact rather than on the circumstances of apparent ruling establishing court’s a principle As to the district sensitive task of any recovery of the that the doctrine bars with the national inter- not inconsistent events, on the 1917-1925 we justice. based It is est or with international court’s order. The vacate the district aspects evident that some of inter- also that Sabbatino itself would plaintiff argues sharply touch much more national law the doc- the 1917-1925 seizure from except others; than do on national nerves argument explain, trine. As we shall implications of an is- important less jur- foreign policy and poses relations, both sensitive sue are for our If on remand the isprudential issues. justification exclusivity in weaker the actions of court finds that the 1991-1992 The balance of political branches. constituted an action- Russia and the RSL may also be relevant considerations it will be retaking property, able perpe- which government shifted if the issues, unnecessary those to resolve act of state is no challenged trated the yet subject event have not been existence, political ... for the longer thorough development of either factual result, country may, as a of this interest briefing. might of course the court While Therefore, rath- measurably be altered. insurance) (as resolve the a matter reaffirming an laying than down or er if it ac- exception claimed even rule all-encompassing inflexible theory as to cepts the latter’s case, only that the Judi- this we decide non-jurisdictional and is free to address validity cial Branch will not examine chooses, any in order it we refrain issues property within its own taking of a of any ruling and discuss the com- from final sovereign govern- territory by foreign a exception merely plications of the claimed by ment, recognized this extant and questions parties the that the highlight to suit, of in the ab- country at the time must address. unambiguous treaty of a or other sence controlling legal regarding agreement the recognized, court

As the district alleges complaint if the principles, even all occurred within events of 1917-1925 954 of the Holocaust un- customary inter- victims survivors taking

that the violates France). Vichy national law. der the laws of passage at 84 S.Ct. 923. Here, course, agencies of and its might a number of factors mentions defendants, the or instrumentalities are of the doctrine against application militate private corporations or defenestrated significant phrase are the re- here. Most to pointed rulers. Plaintiff has statements taking by have been a quiring that the by high in as its favor Russian officials as recog- “sovereign government, extant Yeltsin; but the former President Boris suit,” country time of by this at the nized government, by current Russian its ener- saying and the earlier sentence lawsuit, getic appears defense of this un- may considerations shift when the relevant willing relinquish to the Collection to Cha- perpetrating government longer is no Thus, bad. while no one doubts that the suggest that whatever existence. These collapse of the Soviet Union has entailed at flexibility preserves Sabbatino is its political changes radical and economic taking government has apex where the territory of what is now the Russian by radically different been succeeded Federation, application of invi- Sabbatino’s regime. flexibility to tation would here embroil the Other circuits have on occasion declined political in a seemingly court rather evalu- doctrine, to or have directed apply the regime change ation of the character of the factors, in countervailing consideration of comparison, example, itself—in for to de- regime. Two change reliance on a deci aspects Nazification and other of Germa- by government of sions involve suits ny’s history. It postwar imagine is hard to against its former Presi Philippines qualified judg- that we are to make such Marcos, seeking to dent Ferdinand recover Moreover, plunging ments. our into the property acquired him office. Re process likely, would seem at least in the Marcos, public Philippines (9th Cir.1988) (en banc) absence of an authoritative lead from F.2d branches, political just to entail (declining apply impli- the act of state doc trine); Philippines v. Mar Republic for cations affairs doctrine Cir.1986) (order (2d cos, 806 F.2d designed is avert. ing weigh the district court to Sabbatino’s points Chasidei Chabad also considerations). third, In a qualifying Bi suggestion greater that “the Sabbatino’s (2d Co., gio v. Coca-Cola 239 F.3d 440 degree codification consensus Cir.2000), in the court found the doctrine concerning particular area of internation- applicable Egyptian to a former suit law, al appropriate the more is for the against foreign corporation nationals judiciary regarding to render decisions it.” possession property nationalized It U.S. 84 S.Ct. 923. asserts government; defunct Nasser the sole that the seizure of the occurred expression Egyptian gov of the current campaign practice “in a to suppress the ernment on the matter a letter from was Judaism, economic, not for bona directing Finance the hold Minister of fide academic, recognized governmen- or other er of the to return it to the purpose. takings tal Hence the were plaintiffs. 452-53; Id. at cf. Bodner v. norms, plainly jus cogens just violations of Paribas, Banque discrimination, (E.D.N.Y.2000) racial and no less the (holding inap the doctrine subject plicable of ‘consensus’ condemnation against to claims banks had community.” taken in Br. assets the accounts of Jewish international Chabad circumstances, ly any valid in we defer intuitively appealing. is argument The on a require simply us to embark and vacate the But it would ultimate resolution of international ranking violations path of ruling. the act dispensing with spectrum,

law on a Further, the vilest. doctrine for

of state counte- refused to as the Sabbatino Court judgment therefore affirm the We of inter- exception an for violations nance jurisdiction Agu- over finding district court id. at simpliciter, national law concerning das Chasidei Chabad’s claims it intended are unsure what we Archive; finding we reverse its of Rus- different degrees of in its references to immunity as to the claims sia’s hearten- it would be “consensus.” While on the events of 1917-1925 and based nearly is a univer- ing to believe that there 1991-1992; rejection affirm the court’s we in against religious prejudice sal consensus defense; of Russia’s forum non conveniens in particular, general or anti-Semitism rejection we affirm its of Russia’s act of exposes glaring the world glance around claims; to the Archive and state defense in contrary areas contain- examples to of the act of application we vacate its state human popula- fraction of the ing large Library claims. doctrine to the tion. questions only purely legal are the Not So ordered. argu- by Agudas Chasidei Chabad’s

posed difficult, are factual issues but there ment HENDERSON, KAREN LECRAFT ultimate outcome. might that bear on the concurring judgment: in the Judge, Circuit argues that the Chabad Agudas Chasidei judgment, in I do Although I concur driven hos- confiscation was 1917-1925 analysis jurisdic- agree with the Judaism, it maintained at tility to and in I.A contained Part tional issue discovery yield would argument oral that analyzes majority majority The opinion. Indeed, widely is further evidence. 1605(a)(3),1 provision section government the Soviet recognized claims to plaintiffs that allows the FSIA religious practice and suppressed Jewish dismissal, by dividing the section survive religious beliefs. for their persecuted Jews view, that, impose in its parts into two the Soviet Union But to the extent plaintiff. burdens on the different eradicating on a course of had embarked 1605(a)(3) involving of section portion society and civil property, religion, private taken in violation of “rights property in persecution of selective generally, the role (labeled ma- “A” international law” is Library’s seizure “as- jority) requires (On record. unclear on the current claim: that the de- type a certain sert hand, stronger there is a perhaps other rights plaintiffs ... taken the fendant has than se- non-selective against consensus of international ... violation property crushing private property lective not be ” law,” claim—to suffice—must suggesting society.) civil Without “ Maj. or ‘frivolous.’ ‘wholly insubstantial’ is necessari- proposed exception property or 1605(a)(3) exchanged is owned for such provides: 1. Section instrumentality agency operated an or foreign immune from A state shall not be agency jurisdiction of the courts of the United or instru- and that the States in case — ... States or of engaged activ- mentality commercial (3) property rights in taken in in which ity United States.... law are in issue violation of international 1605(a)(3). 28 U.S.C. ...; any property [ ] 956 Hood, 678, jurisdiction” omitted)); (quotations Bell v. 327 U.S. Op. (citing 941 Je cf. (1946)). 773, Grubart, 90 L.Ed. 939 66 S.Ct. B. rome Inc. v. Lakes Great hand, majority posits, other the the Co.,

On the 527, 537, Dredge & Dock 513 U.S. 1605(a)(3) (labeled remainder of section (1995). 1043, S.Ct. 130 L.Ed.2d 1024 majority) requires plaintiff the by “B” the view, my plaintiff the survives a Rule evidence,” supporting “present adequate 12(b)(1) alleges dismissal because it “[f|or factual matters under purely (1) (2) Archive, Library it owns the and the only produc- a burden of the ... is FSIA both of which were taken the defen tion;” majority differenti- id. at 940.2 predecessors dants or their in office based on whether the “ ates the burdens based the suppress on latters’ intent ‘to the jurisdictional plaintiffs facts track “the ... Judaism, practice any not for bona fide is, “A,” claim,” 940, or are id. economic, academic, recognized or other “particular propositions factual ... instead ” governmental purpose,’ Maj. Op. 954 merits[],” independent of the id. at 940 (3) 63); and, further, (quoting Chabad Br. is, (emphasis original), “B.” each defendant ownership asserts of either may all of this be dicta— While Library they or the Archive and both all, agree after we all claims engage activity in commercial in the Unit to both the and the Archive sur jurisdictional ed States. all of these While yet has to recog vive dismissal-our court defendants, facts were traversed (as nize a construct is manifested such correctly, district court and without majority’s reliance on other circuits’ jurisdictional distinguishing between those 940-42)3 Maj. precedent, Op. and I do not “independent facts of the merits” of the join adoption today. Any jurisdic in its plaintiffs claim and those “intertwined fact, challenged, may require tional once claim,” with the Maj. Op. merits of the satisfy the district court to itself of its 940-41 (emphasis original), it assured jurisdiction. it does so How should not be self of their exceptions existence—with the subject proof of an elaborate scheme ownership of the and defen imposed appellate on review. See Kilbum activity dant RSL’s commercial in the U.S. People’s Libyan v. Socialist Arab Jamahi non, jurisdictional vel that it facts either (D.C.Cir.2004) 1123, riya, 376 F.3d (district did not reach today we reverse— court “retains considerable lati and/or primarily devising procedures parties’ tude in fol via both submissions will pertinent low to facts ferret out the supporting/opposing dismissal. 2. "B” sets forth two alternatives “com- missal-and a dismissal "on the merits” —a 683, 12(b)(6) activity” mercial tie between the United Rule dismissal. 327 U.S. at 773; Dollar, States and the defendants also needed to es- see Land v. also 330 U.S. 731, jurisdiction, 1009, tablish the second which the 735 n. 67 S.Ct. 91 L.Ed. 1209 (1947). Indeed, "immaterial,” supra. relies on. See note 1 "wholly exceptions insubstantial” and “frivolous” reject I majority's majority opinion reliance on Bell v. takes from Bell v. Hood as Hood, 678, 682-83, template jurisdictional 66 S.Ct. for "A” facts were (1946), Arbaugh L.Ed. 939 problematic v. Y & H themselves to the Court. Id. Corp., ("The accuracy calling ju- U.S. 513 & n. 126 S.Ct. these dismissals (2006), 163 L.Ed.2d questioned.”). insofar as it risdictional has been As for suggests High Arbaugh, concluding Court has embraced that Title VII's 15- subject-matter jurisdic- employee "prerequisite” non-jurisdictional, similar bifurcation of Maj. Op. tion in jurisdictional those cases. See 940. The the Court differentiated between facts, Mon-jurisdictional focus of the cited types discussion Bell v. Hood is not two jurisdictional majority opinion the difference between a dismissal for facts as the 12(b)(1) jurisdiction” “want split. Rule dis- maintains and "B” with its "A” —a v. Rus States United Chabad Federation, sian (D.D.C.2006). justifi is no need “There ...

cation, then, an additional imposing jurisdiction.” Gru in the name of

hurdle

bart, 538, 115 1043. America, Appellee

UNITED STATES SAFAVIAN, Appellant.

David H.

Nos. 06-3169. Appeals, Court of

United States Circuit.

District Columbia 8, 2008.

Argued Jan. June

Decided

Case Details

Case Name: Agudas Chasidei Chabad of United States v. Federation

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 13, 2008

Citation: 528 F.3d 934

Docket Number: 07-7002, 07-7006

Court Abbreviation: D.C. Cir.