Supremes Say Foreign Governments Can Face Suits in U.S. Courts
In separate case, justices strike 9th Circuit ruling involving Mexican
trucks and NAFTA
Tony Mauro
Legal Times
06-08-2004

Rejecting the view of the Bush administration and several foreign
governments, the Supreme Court ruled Monday that federal law allows
Americans to sue other nations in U.S. courts for long-ago war crimes and
other offenses.
By a 6-3 vote, the Court gave the green light to Maria Altmann's suit
against the Austrian government to recover valuable paintings owned by her
uncle that were expropriated after World War II.
Justice John Paul Stevens, writing for the majority in Republic of Austria
v. Altmann, No. 03-13, said the Foreign Sovereign Immunities Act, which
allows for certain civil suits against foreign governments, applies to
conduct that occurred before the law's passage in 1976. But Stevens
emphasized the narrowness of the ruling, noting that the United States and
foreign governments will still be able to argue in such cases that sovereign
immunity should apply under other doctrines, or that the suits should fail
because of statutes of limitations or treaty obligations.
"Nothing in our holding prevents the State Department from filing statements
of interest suggesting the courts decline to exercise jurisdiction in
particular cases implicating foreign sovereign immunity," wrote Stevens.
But in dissent, Justice Anthony Kennedy warned that the decision "injects
great prospective uncertainty into our relations with foreign sovereigns."
Kennedy, joined by Chief Justice William Rehnquist and Justice Clarence
Thomas, said traditional presumptions against the retroactivity of new laws
should have prevailed.
Scott Cooper of the New York firm Proskauer Rose, who represented Austria in
the case, said, "There's no question that we are disappointed in the
outcome." But, he added, "the Court majority plainly does not intend that
this decision result in a lot of other cases."
The Altmann case drew wide interest not just because of international
concern -- briefs were filed by Mexico and Japan on the side of Austria --
but also because of Altmann's personal quest for the six Gustav Klimt
paintings valued at more than $150 million. An Austrian journalist
discovered evidence in 1998 that the paintings and other works at the
Austrian Gallery, Austria's national museum, had been seized by Nazis or
expropriated by Austria after World War II. The paintings sought by Altmann
had hung in the Vienna home of her uncle. She won her case at the district
court level and before the 9th U.S. Circuit Court of Appeals.
In the majority opinion, Stevens reviewed Altmann's saga as well as years of
the Court's retroactivity doctrine, concluding that there is "clear evidence
that Congress intended the act to apply to preenactment conduct."
Emory University law professor David Bederman said the ruling may have more
impact on the issue of retroactivity of federal laws than on international
litigation.
Bederman, who wrote an amicus brief in the case on behalf of Jewish legal
organizations, said that a recent "cottage industry" of claims against
Germany and Japan for World War II-era conduct had mostly been thwarted by
existing treaties and other legal impediments -- and would not be revived by
Monday's ruling. "I don't see any significant impact on the volume of
cases," resulting from the Court's decision, Bederman said. But some cases
are still pending -- one case filed by Holocaust survivors against French
railroads, for example, and a suit by women claiming they had been enslaved
by Japan -- and may be affected by the decision.
The decision was a relatively rare instance in which the Supreme Court
upheld a 9th Circuit decision.