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Documentary Evidence and Held a Hearing at Which Witnesses Testified No. 19-520 ================================================================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- ALAN PHILIPP, et al., Conditional Cross-Petitioners, v. FEDERAL REPUBLIC OF GERMANY, a foreign state, and STIFTUNG PREUSSICHER KULTURBESITZ, Conditional Cross-Respondents. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The D.C. Circuit --------------------------------- --------------------------------- BRIEF IN OPPOSITION TO CONDITIONAL CROSS-PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- DAVID L. HALL JONATHAN M. FREIMAN WIGGIN AND DANA LLP Counsel of Record Two Liberty Place TAHLIA TOWNSEND 50 S. 16th Street TADHG DOOLEY Suite 2925 BENJAMIN M. DANIELS Philadelphia, PA 19102 DAVID R. ROTH (215) 998-8310 WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 (203) 498-4400 [email protected] Counsel for Conditional Cross-Respondents ================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT Conditional Cross-Respondents are Federal Repub- lic of Germany (“Germany”) and Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental insti- tution comprising museums, archives, and research institutions in Berlin. Neither is a corporation, has a corporate parent, or is owned in whole or part by any publicly held company. Conditional Cross-Petitioners are U.K. citizen Alan Philipp and U.S. citizens Gerald Stiebel and Jed Leiber. ii TABLE OF CONTENTS Page PARTIES TO THE PROCEEDING AND COR- PORATE DISCLOSURE STATEMENT ........... i TABLE OF CONTENTS ...................................... ii TABLE OF AUTHORITIES ................................. iii STATEMENT ....................................................... 1 I. Introduction ............................................... 1 II. Factual Background .................................. 5 III. Procedural Background ............................. 6 REASONS FOR DENYING THE CROSS- PETITION ........................................................ 9 I. The D.C. Circuit’s holding on this question is correct .................................................... 9 II. There is no reasoned split over this ques- tion among the Courts of Appeals ............. 16 III. The D.C. Circuit’s holding on this question aligns with the longstanding position of the United States ...................................... 21 CONCLUSION ..................................................... 26 iii TABLE OF AUTHORITIES Page CASES Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012) .......................................................... 20 Agudas Chasidei Chabad of U.S. v. Russian Fed- eration, 528 F.3d 934 (D.C. Cir. 2008) ....................... 2 Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) .......................................................... 18 Amorrortu v. Republic of Peru, 570 F. Supp. 2d 916 (S.D. Tex. 2008) ................................................. 20 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) ......................................... 1 Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312 (2017) ........ 20 Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) ..................................................... 18, 19, 24 Comparelli v. Republica Boliviariana de Vene- zuela, 891 F.3d 1311 (11th Cir. 2018) ..................... 20 de Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. Cir. 2017) .................................................... 1, 16 de Csepel v. Republic of Hungary, 139 S. Ct. 784 (Jan. 7, 2019) (No. 17-1165) ................ 4, 9, 21, 25, 26 Escude Cruz v. Ortho Pharm. Corp., 619 F.2d 902 (1st Cir. 1980) .......................................................... 13 First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) .............. 10, 13 Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006) ........................................................ 3, 16, 17, 24 iv TABLE OF AUTHORITIES—Continued Page Hammerstein v. Federal Republic of Germany, No. 09-CV-443 (ARR/RLM), 2011 WL 9975796 (E.D.N.Y. Aug. 1, 2011) ............................................ 17 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ....................................................................... 13 Philipp v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir. 2018) ......................................... 3, 8, 16 Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014) ........................................................ 15 Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018) ................................................................. 10, 12 Sequeira v. Republic of Nicaragua, No. 16-25052- CIV, 2017 WL 8772507 (S.D. Fla. Aug. 1, 2017) ....... 20 Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) .................................... 3, 7, 15, 24, 25 Singh ex rel. Singh v. Caribbean Airlines Ltd., 798 F.3d 1355 (11th Cir. 2015) ................................ 11 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) ................................................... 21 Sukyas v. Romania, 765 F. App’x 179 (9th Cir. 2019) .................................................................. 18, 19 Verlinden V.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983) ................................................................ 10 v TABLE OF AUTHORITIES—Continued Page STATUTES 28 U.S.C. § 1602 ............................................................ 1 28 U.S.C. § 1603(a) ................................................ 10, 14 28 U.S.C. § 1603(b)(1)–(3) ........................................... 10 28 U.S.C. § 1604 ........................................................ 1, 9 28 U.S.C. § 1605(a)(3) ......................................... passim 28 U.S.C. § 1606 .......................................................... 10 28 U.S.C. § 1608 .......................................................... 11 28 U.S.C. § 1610 .......................................................... 11 28 U.S.C. § 1610(a) ...................................................... 15 28 U.S.C. § 1610(b) ...................................................... 15 OTHER AUTHORITIES Brief for Amicus Curiae the United States, Si- mon v. Republic of Hungary, No. 17-7146 (D.C. Cir. June 1, 2018), 2018 WL 2461996 ..................... 24 Brief for the United States as Amicus Curiae, de Csepel v. Republic of Hungary, No. 17-1165 (Dec. 4, 2018) (“de Csepel SG Br.”), 2018 WL 6382956 ........................................................... passim Brief for the United States as Amicus Curiae, Kingdom of Spain v. Estate of Claude Cassi- rer, No. 10-786, (May 27, 2011) (“Cassirer SG Br.”), 2011 WL 2135028 ........................................... 19 vi TABLE OF AUTHORITIES—Continued Page Brief of Appellants, Sukyas v. Romania, No. 17- 56557 (9th Cir. Jan. 25, 2018), 2018 WL 679187 ..................................................................... 20 H.R. REP. No. 94-1487 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 1976 WL 14078 ............... 15 Letter Brief of the United States as Amicus Cu- riae, Garb v. Republic of Poland, No. 02-7844 (2d Cir. Sept. 9, 2004) .............................................. 22 Petition for Writ of Certiorari, Fed. Republic of Germany v. Philipp (No. 19-351) (Sep. 16, 2019) ...................................................................... 1, 5 Washington Conference Principles on Nazi Con- fiscated Art (“Washington Principles”) ..................... 6 1 STATEMENT I. Introduction In their conditional cross-petition for certiorari, Plaintiffs ask this Court to review a question that the Court declined to review less than a year ago and to reverse a holding that is both consistent with the rea- soned views of other circuits and in accord with the longstanding position of the United States. Although this Court should review other aspects of the deci- sion below—see Defendants’ Petition for Certiorari, No. 19-351 (Sept. 16, 2019)—the Question Presented in Plaintiffs’ conditional cross-petition does not warrant review. The Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1602 et seq., provides the sole ba- sis for obtaining jurisdiction over foreign states and their instrumentalities in United States courts. See Ar- gentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434–35 (1989). Under the FSIA, a “foreign state”—defined to include both a foreign sovereign and its “agenc[ies] or instrumentalit[ies],” 28 U.S.C. § 1603(a)—is presumptively immune from suit in the United States, unless a specific exception to immunity applies. Id. § 1604. This case concerns the “expropria- tion exception,” which permits a U.S. court to exercise jurisdiction over a foreign state if “rights in property taken in violation of international law are in issue” and if there is a sufficient commercial nexus to the United States. 28 U.S.C. § 1605(a)(3); see generally de Csepel v. Republic of Hungary, 859 F.3d 1094, 1101 (D.C. Cir. 2 2017) (“A claim satisfies the [expropriation] exception if (1) ‘rights in property taken in violation of interna-
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