FEDERAL REPUBLIC OF GERMANY et al. v. PHILIPP et al.

Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

No. 19–351. Argued December 7, 2020—Decided February 3, 2021

Respondents are the heirs of German Jewish art dealers who formed a consortium during the waning years of the Weimar Republic to purchase a collection of medieval relics known as the Welfenschatz. The heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection to Prussia for a third of its value. The relics are currently maintained by the Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the Federal Republic of Germany, and displayed at a Berlin museum. After unsuccessfully seeking compensation in Germany, the heirs brought several common law property claims in United States District Court against Germany and SPK (collectively Germany). Germany moved to dismiss, arguing that it was immune from suit under the Foreign Sovereign Immunities Act. As relevant, Germany asserted that the heirs’ claims did not fall within the FSIA’s exception to sovereign immunity for “property taken in violation of international law,” 28 U. S. C. §1605(a)(3), because a sovereign’s taking of its own nationals’ property is not unlawful under the international law of expropriation. The heirs countered that the exception did apply because Germany’s purchase of the Welfenschatz was an act of genocide, and the relics were therefore taken in violation of international human rights law. The District Court denied Germany’s motion to dismiss, and the D. C. Circuit affirmed.

Held: 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. Pp. 4–16.

 (a) The heirs contend that their claims fall within the FSIA’s exception for cases involving “property taken in violation of international law,” §1605(a)(3)—a provision known as the expropriation exception—because the forced sale of the Welfenschatz constituted an act of genocide, and genocide is a violation of international human rights law. Germany argues that the relevant international law is not the law of genocide but the international law of expropriation, under which a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. Pp. 4–13.

  (1) The “domestic takings rule” invoked by Germany derives from the premise that international law customarily concerns relations among states, not between states and individuals. Historically, a sovereign’s taking of a foreign national’s property implicated international law because it constituted an injury to the state of the alien’s nationality. A domestic taking, by contrast, did not interfere with relations among states. This domestic takings rule endured even as a growing body of human rights law made states’ treatment of individual human beings a matter of international concern. And those who criticized the treatment of property rights under international law did so on the ground that all sovereign takings, not just domestic takings, were outside the scope of that law. This dispute over the existence of international law constraints on sovereign takings eventually reached the Court in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 436. Hesitant to delve into this controversy, the Court instead invoked the act of state doctrine. In response, Congress passed the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964, which prohibits United States courts from applying the act of state doctrine where a “right[ ] to property is asserted” based upon a “taking . . . by an act of that state in violation of . . . international law.” 22 U. S. C. §2370(e)(2). Courts and commentators understood the Amendment to permit adjudication of claims Sabbatino had avoided deciding, i.e., claims against other countries for expropriation of American-owned property. But nothing in the Amendment purported to alter any rule of international law, including the domestic takings rule. Congress used nearly identical language when it crafted the FSIA’s expropriation exception twelve years later. Based on this historical and legal background, courts reached a “consensus” that the expropriation exception’s “reference to ‘violation of international law’ does not cover expropriations of property belonging to a country’s own nationals.” Republic of Austria v. Altmann, 541 U. S. 677, 713 (Breyer, J., concurring). Pp. 5–8.

  (2) The heirs concede that the international law of expropriation retained the domestic takings rule at the time of the FSIA’s enactment, but they read “rights in property taken in violation of international law” to incorporate any international norm, including international human rights law, rather than merely the international law of expropriation. The text of the FSIA’s expropriation exception, however, supports Germany’s reading. The exception places repeated emphasis on property and property-related rights, while injuries and acts associated with violations of human rights law, such as genocide, are notably lacking—a remarkable omission if the provision was intended to provide relief for atrocities such as the Holocaust. A statutory phrase concerning property rights most sensibly references the international law governing property rights, rather than the law of genocide. The heirs’ position would arguably force courts themselves to violate international law not only by ignoring the domestic takings rule, but also by derogating international law’s preservation of sovereign immunity for violations of human rights law. Germany’s interpretation of the exception is also more consistent with the FSIA’s express goal of codifying the restrictive theory of sovereign immunity, 28 U. S. C. §1602, under which immunity extends to a sovereign’s public, but not private, acts. It would destroy the Act’s distinction between private and public acts were the Court to subject all manner of sovereign public acts to judicial scrutiny under the FSIA by transforming the expropriation exception into an all-purpose jurisdictional hook for adjudicating human rights violations. Pp. 8–12.

  (3) Other FSIA provisions confirm Germany’s position. The heirs’ approach would circumvent the reticulated boundaries Congress placed in the FSIA with regard to bringing claims asserting human rights violations. One FSIA exception, for example, provides jurisdiction over claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property,” but only where the relevant conduct “occurr[ed] in the United States.” §1605(a)(5). And the FSIA’s terrorism exception eliminates sovereign immunity for state sponsors of terrorism, but only for certain human rights claims, brought by certain victims, against certain defendants. §§1605A(a),(h). Such restrictions would be of little consequence if human rights abuses could be packaged as violations of property rights and thereby brought within the expropriation exception. Pp. 12–13.

 (b) The heirs’ counterarguments cannot overcome the text, context, and history of the expropriation exception. They claim that the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act—which amends the FSIA to explain that participation in specified “art exhibition activities” does not qualify as “commercial activity” under the expropriation exception, §1605(h)—demonstrates that Congress anticipated that Nazi-era claims could be adjudicated under the exception. Congress’s effort to preserve sovereign immunity in a nar row, particularized context, however, does not support the broad elimination of sovereign immunity across all areas of law. Other statutes aimed at promoting restitution to Holocaust victims, on which the heirs rely, generally encourage redressing those injuries outside of public court systems and do not speak to sovereign immunity. See, e.g., Holocaust Expropriated Art Recovery Act of 2016, 130 Stat. 1524. Pp. 14–15.

 (c) This Court does not address Germany’s argument that the District Court was obligated to abstain from deciding the case on international comity grounds or the heirs’ alternative argument 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. Pp. 15–16.

894 F. 3d. 406, vacated and remanded.

 Roberts, C. J., delivered the opinion for a unanimous Court.


REPUBLIC OF HUNGARY, et al., PETITIONERS v. ROSALIE SIMON, et al.

On Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

[February 3, 2021]

Per Curiam.

 The judgment of the United States Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with the decision in Federal Republic of Germany v. Philipp, ante, p. ___.

It is so ordered.


Salinas v. United States Railroad Retirement Board

Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 19–199. Argued November 2, 2020—Decided February 3, 2021

In 1992, petitioner Manfredo M. Salinas began seeking disability benefits under the Railroad Retirement Act of 1974 (RRA) based on serious injuries he suffered during his 15-year career with the Union Pacific Railroad. Salinas’ first three applications were denied, but he was granted benefits after he filed his fourth application in 2013. He timely sought reconsideration of the amount and start date of his benefits. After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U. S. Railroad Retirement Board (Board) had not considered certain medical records. An intermediary of the Board denied the request to reopen because it was not made “[w]ithin four years” of the 2006 decision, and the Board affirmed. 20 CFR §261.2(b). Salinas sought review with the Fifth Circuit, but the court dismissed the petition for lack of jurisdiction, holding that federal courts cannot review the Board’s refusal to reopen a prior benefits determination.

Held: The Board’s refusal to reopen a prior benefits determination is subject to judicial review. Pp. 4–13.

 (a) The RRA makes judicial review available to the same extent that review is available under the Railroad Unemployment Insurance Act (RUIA). See 45 U. S. C. §231g. Thus, to qualify for judicial review, the Board’s refusal to reopen Salinas’ 2006 application must constitute “any final decision of the Board.” §355(f ). It does. Pp. 4–10.

  (1) The phrase “any final decision” “denotes some kind of terminal event,” and similar language in the Administrative Procedure Act has been interpreted to refer to an agency action that “both (1) mark[s] the consummation of the agency’s decision-making process and (2) is one by which rights or obligations have been determined, or from which legal consequences will flow.” Smith v. Berryhill, 587 U. S. ___, ___, ___. The Board’s refusal to reopen Salinas’ 2006 denial of benefits satisfies these criteria. First, the decision was the “terminal event” in the Board’s administrative review process. After appealing the intermediary’s denial of reopening to the Board, Salinas’ only recourse was to seek judicial review. Second, the features of a reopening decision make it one “ by which rights or obligations have been determined, or from which legal consequences will flow.” For example, a reopening is defined as “a conscious determination . . . to reconsider an otherwise final decision for purposes of revising that decision.” 20 CFR §261.1(c). It therefore entails substantive changes that affect benefits and obligations under the RRA. The Board reads §355(f )’s earlier reference to “any other party aggrieved by a final decision under subsection (c)” to mean that each authorized party may seek review of only “a final decision under” §355(c). Section 355(f ), however, uses the broad phrase “any final decision” without tying it to the earlier reference to §355(c)—a notable omission, since Congress used such limiting language elsewhere in §355, see §355(c)(5). Pp. 6–8.

  (2) Any ambiguity in the meaning of “any final decision” must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. 480, 486. The Board attempts to rebut that presumption by arguing that various cross-references within §355 prove that §355(f ) and §355(c) are coextensive. There are several indications, however, that §355(f ) is broader than §355(c). For example, under §355(g), determinations that certain unexpended funds may be used to pay benefits or refunds are subject to review exclusively under §355(f ), yet the Board concedes that such decisions fall outside §355(c). Pp. 8–10.

 (b) The Board’s remaining arguments also fall short. First, the Board analogizes §355(f ) to the judicial-review provision addressed in Califano v. Sanders, 430 U. S. 99. But the latter provision contains an express limitation that §355(f ) does not, distinguishing Califano from this case. Second, the Board argues that reopening does not qualify for judicial review because it is simply a “refusal to make a new determination” of rights or liabilities, like the denial of reopening in Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449. The statute in Your Home, however, did not implicate the presumption in favor of judicial review and was narrower than §231g, which simply incorporates §355(f ) into the RRA. Finally, the fact that the Board could decline to offer reopening does not mean that, having chosen to provide it, the Board may avoid the plain text of §355(f ). The Board’s decision to grant or deny reopening is ultimately discretionary, however, and therefore subject to reversal only for abuse of discretion. See 20 CFR §261.11. Pp. 10–13.

765 Fed. Appx. 79, reversed and remanded.

 Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., Breyer, Kagan, and Kavanaugh, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, Gorsuch, and Barrett, JJ., joined.