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Federal Republic of Germany v. Philipp

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Supreme Court of the United States
Federal Republic of Germany v. Philipp
Term: 2020
Important Dates
Argument: December 7, 2020
Decided: February 3, 2021
Outcome
Vacated and remanded
Vote
9-0
Majority
Chief Justice John G. Roberts • Clarence Thomas • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch • Brett Kavanaugh • Amy Coney Barrett


Federal Republic of Germany v. Philipp is a case argued before the Supreme Court of the United States on December 7, 2020, during the court's October 2020-2021 term. The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The case concerned the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA).

In a unanimous ruling, the court vacated the U.S. Court of Appeals for the D.C. Circuit's ruling and remanded the case for further proceedings, holding that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals' property is not unlawful under the international law of expropriation.[1] Chief Justice John Roberts delivered the majority opinion of the court. Click here for more information about the ruling.

HIGHLIGHTS
  • The case: Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The heirs of the art dealers claimed the sale was invalid. They filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.[2]
  • The issues:
    (1) Does the FSIA's expropriation exception require foreign states to defend themselves in U.S. courts when faced with claims that the foreign states illegally took property from their own citizens on their own territory?

    (2) If the expropriation exception permits these claims, can a U.S. court decline to exercise jurisdiction under the international comity doctrine?[2]
  • The outcome: The U.S. Supreme Court vacated the D.C. Circuit’s ruling and remanded the case for further proceedings in a 9-0 ruling.


    • You can review the lower court's opinion here.

    Timeline

    The following timeline details key events in this case:

    • February 3, 2021: The U.S. Supreme Court vacated the U.S. Court of Appeals for the D.C. Circuit's ruling and remanded the case for further proceedings.
    • December 7, 2020: The U.S. Supreme Court heard oral argument.
    • July 2, 2020: The court agreed to hear the case.
    • September 16, 2019: The Federal Republic of Germany and Stiftung Preussischer Kulturbesitz, the petitioners, appealed to the U.S. Supreme Court.
    • June 18, 2019: The D.C. Circuit denied Germany's petition for an en banc rehearing.

    Background

    In 1933, the Nazi party came to power in Germany. In 1934, the Dresdner Bank made an offer on behalf of the state of Prussia to buy a collection of medieval art. The art belonged to a consortium of German art dealerships owned by German Jews (the Consortium). The Consortium sold the art for nearly $1,700,000 in 1935 dollars. The art was then displayed in public museums in Germany.[2]

    In 2008, heirs of some Consortium members claimed the sale was invalid and occurred under duress. They contacted Stiftung Preussischer Kulturbesitz (SPK), a German governmental institution made up of museums, archives, and research institutes in Berlin. SPK investigated the claim and determined the art was sold at fair market value. The claimants disagreed, and the case was brought before Germany's Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish Property. The commission upheld the SPK's conclusion.[2]

    The claimants filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply to a foreign state that had allegedly taken property from its own citizens and (2) that international comity did not allow the claimants to sue in the District of Columbia.[2]

    The U.S. Court of Appeals for the D.C. Circuit held the art sale amounted to an act of genocide and therefore violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.[2]

    In the petition, the Federal Republic of Germany argued the D.C. Circuit's ruling "destabilizes longstanding understandings of foreign sovereign immunity and international comity, risks endangering U.S. foreign relations, and invites foreign states to allow suits against the U.S. in their courts for this nation’s own historical wrongs."[2]

    Foreign Sovereign Immunities Act

    Congress passed the Foreign Sovereign Immunities Act (FSIA) in 1976. The FSIA held that foreign states are immune from lawsuits in federal and state courts, with exceptions. The expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving "property taken in violation of international law."

    Questions presented

    The petitioner presented the following questions to the court:[3]

    Questions presented:
    “ 1. Whether the "expropriation exception" of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when "rights in property taken in violation of international law are in issue," provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states' responsibility for takings of property.


    2. Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.[4]

    		”


    Oral argument

    Audio

    Audio of oral argument:[5]



    Transcript

    Outcome

    In a unanimous ruling, the court vacated the U.S. Court of Appeals for the D.C. Circuit's ruling and remanded the case for further proceedings, holding that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals' property is not unlawful under the international law of expropriation.[1]

    Opinion

    In his opinion, Chief Justice John Roberts wrote:[1]

    “ We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.


    We do not address Germany’s argument that the District Court was obligated to abstain from deciding the case on international comity grounds. Nor do we consider an alternative argument noted by the heirs: that the sale of the Welfenschatz is not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction. See Brief for Respondents 27–28; but see Brief for Petitioners 19, n. 7 (claiming that the heirs forfeited this argument). The Court of Appeals should direct the District Court to consider this argument, including whether it was adequately preserved below.

    The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.[4]

    		”
    —Chief Justice John Roberts

    Text of the opinion

    Read the full opinion here.

    Additional reading

    October term 2020-2021

    The Supreme Court began hearing cases for the term on October 5, 2020. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[6]

    The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument. Click here for more information on the court's opinions.

    The court agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Five cases were removed from the argument calendar.


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 Supreme Court of the United States, "FEDERAL REPUBLIC OF GERMANY ET AL. v. PHILIPP: Slip opinion," decided February 3, 2021
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 Supreme Court of the United States, Federal Republic of Germany v. Philipp, "Petition for a writ of certiorari," accessed July 2, 2020
    3. ↑ Supreme Court of the United States, Federal Republic of Germany v. Philipp, "Questions presented," accessed July 2, 2020
    4. ↑ 4.0 4.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    5. ↑ Supreme Court of the United States, "Oral Argument - Audio," accessed December 11, 2020
    6. ↑ SupremeCourt.gov, "A Brief Overview of the Supreme Court," accessed April 20, 2015
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