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Case number 22.7126 Alan Philip et al.

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Appellants versus Steve Tung procedure culture basics.

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Mr. O'Donnell for the balance.

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Mr. Priman for the appellee.

[00:00:14] Speaker 04:
Good morning, Mr. O'Donnell.

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You may proceed when you're ready.

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Good morning, Your Honor, and may it please the court.

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Nicholas O'Donnell for the appellants, Alan Philip, Gerald Steeble, and Jed Lieber.

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To understand the two questions posed by the Supreme Court on remand, it is essential to understand the role that the nationality of the victims has always played in this case.

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This case was brought in 2015, alleging a classical expropriation of the property.

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If you look at paragraph 23 of the first complaint, which is the joint appendix at page 21, at 19 and 20, excuse me,

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It's very clear that the allegations were framed in terms of a classical appropriation.

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This is not a case that took a turn because of Simon 1.

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The allegations are that the dolphin shots, the property issued in this case, that that taking was discriminatory because the victims were Jewish, that it was not for a valid public purpose, it was part of the Nazi's larger theft of art, and that there was not fair and adequate consideration paid at the time.

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This appears verbatim in the first amending complaint at paragraph 25, joint appendix 177, and the second amending complaint, paragraph 25, joint appendix 908.

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Those allegations set out the elements that even the Prussian Foundation would have to concede address what international law prescribed.

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These allegations, as I said, did not change because of Simon.

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They were not an adaptation because of an intervening case.

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Even if you looked at Simon 1 as an outlier, which it was not at the time, it is extremely detailed.

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The allegations are extremely detailed about the role that being a German or not being a German by virtue of being a Jew in so many words played in why this transaction fits those elements.

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So JA908?

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908, Your Honor, I believe is the second amending complaint.

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Yeah, paragraph.

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25.

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The second amendment complaint is verbatim paragraph 23 from the first complaint.

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If I've given you the wrong JSA site, I apologize.

[00:02:34] Speaker 04:
Yeah, I think it's on 903.

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903, I'm sorry.

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What paragraph?

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Paragraph 25 of the operative complaint before you, the second amendment.

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And that's the same as first amendment amended complaint paragraph?

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25.

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and Original Complaint Paragraph 23.

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And when you compare them, they are verbatim the same.

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This case in 2015 invoked Section 1605A3.

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The jurisdictional theory of this case has never changed.

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It is that this taking, that this transaction cannot be defended because of who the parties were and the

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If I say nothing else today, it is that the motivating philosophy of the taking state from the expropriating state is to divide the universe into Germans and non-Germans.

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And I think Mr. Zell said this eloquently at the end, if you were to ask what the view of the expropriating state was in 1935 as to whether these three men were German nationals, the question answers itself.

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Of course, Germany did not.

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Germany could not have been more emphatic that this group of people was constitutionally ineligible.

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Why is that the issue?

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Because that is how you determine what the nationality of the parties is you're on.

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What about the corporations?

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These individuals did not own anything and their heirs didn't own anything except interest in a corporation.

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Three corporations were German corporations.

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That sold the artwork in 1935.

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That is correct.

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We disagree with the production foundation, of course, as to whether the association had separate existence.

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But going to your question about the art dealer firms, that simply puts them in the same place as the plaintiffs in Helmerick on the remand.

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The American shareholders, whose Venezuelan corporation was taken, the Venezuelan corporation had no

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grievance under an international law.

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This court held.

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But the American shareholders did.

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And in this case, what you have at the time of the taking is you have two shareholders who must be considered Dutch because they had left.

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And again, this goes to the standard of nationality of the men involved.

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I have to interrupt you.

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What you just said is not accurate according to the Supreme Court.

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Let me read to you.

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since two of the consortium members fled the country following this sale.

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That is, with all due respect to the opinion of the Supreme Court, you are not what the allegations of the complaint say and what the allegations of the complaint have always said.

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So Chief Justice Roberts was wrong.

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I guess in that respect, yes, just as to the record of the case, the record of the case, it's not disputed, has never changed as to the sequence because it says by 1935, they had emigrated.

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It says by, but the sale was in June.

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Right.

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And 1935 begins, began in January.

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So by 1935,

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without any more specific reference is by the time 1935 began.

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But your entire theory also depends on the ability of stateless individuals to assert expropriation claim.

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Not entirely because I think under the proper perspective Rosenberg and Rosenbaum must be considered Dutch nationals at the time of the taking, which would place that into the context of

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what everybody, I think, agrees, putting aside the corporate question Judge Randolph addressed, is a classless appropriation taken by a state of a foreign alien's property.

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But even as to the statelessness question, Your Honor, yes, we agree certainly with assignment plaintiffs.

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And I think the way to look at that is,

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There is this small space, right, between the secondary statement and the FSIA.

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There has to be, because as Mr. Zell pointed out, there is no analog in customary international law for the expropriation, except... I want to get back to the question I asked you earlier.

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The allegations on looking at your second amended complaint and just their number of paragraphs, but just take paragraph 32.

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On information and belief, the consortium was solely entitled to ownership rights in the period October 1929 to June 14, 1935, when the artwork had been in their possession.

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So the consortium sold it.

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And then according to the Supreme Court, the two individuals who you're talking about moved to the Netherlands, right?

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So the taking, when the taking occurred, they were not Dutch citizens.

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And if that's essential, I don't find it, if it's essential that they be considered Dutch citizens, show me in your complaint where you'd make that allegation.

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It's not essential, Your Honor.

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Well, as I said earlier, we made the allegation that by 1935, they had immigrated.

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So I understand what the opinion in Phillips says, but as to what the record is, which is the question, which is the record we're examining on the remand question,

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The allegations are as they've always, but it is not essential because stateless victims can bring these claims.

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They can espouse these claims, and that is for a couple of reasons.

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One is the comment D to section 175, which Mr. Zell alluded to, is that in that instance, the stateless alien can espouse the claim.

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And the other, as I said, in response to your question, Judge Pillard, is there has to be, by definition,

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the very, at least, slightest bit of space between the second restatement and the expropriation exception because there is no analog at international law.

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Now, as the Supreme Court has said repeatedly, it is a departure, but not a radical departure.

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But it has to, that 1605A3 is a departure from international law, but it should not be considered a radical departure.

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Justice Thomas quoted that at me in oral argument.

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It is

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in various expropriation decisions by the Supreme Court since the 80s.

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But the departure has to include something greater than zero, otherwise the expropriation exception in that instance would have no, there would be nothing left.

[00:09:24] Speaker 04:
Well, it's about the immunity.

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It pierces the immunity.

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I'm not sure how you're relying on comment D, the last clause of which is a stateless alien is without a remedy, since there is no state withstanding to espouse this claim.

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And there you're relying on the notion that the Foreign Sovereign Immunities Act creates.

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Well, section D ends, unless I'm reading the wrong

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paragraph under the rules stated in this section, a stateless alien may himself assert the responsibility of a state in those situations where an alien who is a national of another state may do so.

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And the next sentence is, however, in those situations not covered by the rules stated in this section or by an international agreement providing some other remedy, a stateless alien is without a remedy.

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But the FSA is that remedy.

[00:10:12] Speaker 04:
Since there is no state withstanding to espouse his claim.

[00:10:14] Speaker 04:
That's somewhat circular, whether the

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FSIA is referring to property taken in violation of international law.

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And then you're saying, well, violation of international law need not be separately provided, for example, as described in the second statement or described in other sources of customer international law, because the statute itself accomplishes

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that codification?

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That goes back to the fact of the FSAA and some of your questions earlier today, Your Honor, which is that the FSAA does provide that remedy.

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The FSAA does a lot of different things.

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And the day before the FSAA was enacted, an alien in that circumstance would have had no remedy anywhere.

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So you are relying on the distinction between right and remedy that I alluded to at the beginning.

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Yes.

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Yes.

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Um,

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With that, I have about a minute left, so I'll reserve the balance of my time if there are no other questions.

[00:11:16] Speaker 00:
Thank you.

[00:11:23] Speaker 04:
Morning, Mr. Freiman.

[00:11:24] Speaker 02:
Good morning, Your Honors.

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May it please the court, Jonathan Freiman, press PK.

[00:11:31] Speaker 02:
I do want to address some of the jurisdictional merits questions, which of course have consumed the bulk of this court's questions and answers this morning, but I'm going to start by being a little more boring.

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And I'm going to turn to the law of forfeiture.

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And in particular, to the fact that the district court here found that the arguments that Mr. O'Donnell has been presenting have been forfeited.

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And this court's review of district court forfeiture decision is under the abusive discretion standard.

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And there's a reason for that, of course.

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The district court is uniquely positioned to know what has been argued and to take the time to look through the record in some detail.

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The GSS group decision is the one that makes clear that it's an abusive discretion standard.

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And as Judge Coller-Catelli found, none of this was argued below.

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Now, this is not a question of, can you find a paragraph in the complaint that might support a legal theory?

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The question is, did they argue the legal theory at any previous time in this case before it got through the Supreme Court?

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And the answer to that question is no, as Judge Coller-Catelli set out in very clear detail in her decision.

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All along, they chose a path.

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They had a jurisdictional theory.

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Their theory was that the expropriation exception allowed claims for property taken in violation of the international law of genocide.

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That was their theory.

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But we all know that there was a long-standing consensus, as Judge Breyer put it, in the Altman case and as the Supreme Court put it in this case, that the domestic takings rule existed.

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And therefore, they always had another path.

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They always could have said from the beginning, no, we don't fall within the domestic takings rule because we are not nationals of Germany.

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None of the companies or nationals of Germany or whatever their theory, none of the individuals who owns the companies and you can ignore the company's corporate status, whatever their theory would have been, none of that is argued.

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You won't find any of that in any of their briefs to the district.

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You won't find any of it in the briefs to this court the last time around.

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It's first brought up in a single paragraph in response to our assertion that it was waived in their Supreme Court merits brief.

[00:13:37] Speaker 04:
What about the allegations of the complaint, and what about the fact that you have consistently been arguing against that position?

[00:13:44] Speaker 04:
It doesn't seem like, in those circumstances, that there's any notice problem, which is really what this whole doctrine goes to, the preservation.

[00:13:52] Speaker 04:
It's a discretionary doctrine.

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You've been alert to this issue all along.

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Nothing about the sequence of the decision obviously keeps you within litigation for longer than you'd like, but these are

[00:14:08] Speaker 02:
These are complicated questions, Your Honor.

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I don't think this court needs to address them, because I don't think the forfeiture law of this circuit requires there to be some sort of particularized prejudice.

[00:14:20] Speaker 02:
But there is prejudice here.

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And I know Your Honor had some doubts about this in the last argument.

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But there is prejudice of multiple forms.

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And I'd like to go through them for you.

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First of all, I do want to reiterate the notion of the fact that I'm, of course, representing a foreign sovereign.

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The very purpose of the foreign sovereign immunity act is immunity from suit.

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And in the Supreme Court's decision in Helmerick, the Supreme Court makes clear, no, we're not going to adopt this non-frivolous standard, because that's going to drag the litigation out.

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That's going to make the litigation keep going.

[00:14:51] Speaker 02:
Well, forfeiture's even worse.

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If we're going to excuse forfeiture in this circumstance, we're saying the plaintiff can bring one theory, bring it all the way up to the Supreme Court,

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go all the way back down and then just start with another theory.

[00:15:04] Speaker 04:
Who goes all the way up to the Supreme Court?

[00:15:05] Speaker 02:
We do because, in fact, that's part of the notion of the Foreign Sovereign Immunity Act.

[00:15:09] Speaker 02:
Exactly.

[00:15:10] Speaker 04:
I'm just saying that, you know, it's a little rich given that it is the prerogative of a nation state to appeal whenever sovereign immunity is denied.

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that the appeals that are repeatedly triggered by the nation-state are then averted to as a source of delay.

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And I think this is a tough question, where there are multiple legal grounds and where you want to have them tested all the way to the highest court.

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And that's absolutely prerogative.

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But there's a tension between resolving things efficiently and giving the sovereign

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immediate rights to appeal.

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You recognize that.

[00:15:53] Speaker 02:
I think what Your Honor is saying, but respectfully, if we had not appealed, we would have been moving to discovery.

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We would have been moving to factual discovery because the district court, in fact, found that there was jurisdiction under a theory that proved to be wrong.

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The Supreme Court rejected.

[00:16:06] Speaker 04:
And you might have prevailed on facts.

[00:16:09] Speaker 02:
We might have, but the point of the Foreign Sovereign Immunities Act is immunity from suit, not immunity from liability.

[00:16:14] Speaker 04:
I understand, I understand.

[00:16:15] Speaker 04:
I just think it's very difficult to get you everything that you want, you know, full, fully reviewed accuracy and have the case decided yesterday.

[00:16:25] Speaker 02:
Well, let me make, we're not testing for yesterday, Your Honor, but let me make clear, I think it's important to get into the details a little bit of the procedural sequence here.

[00:16:32] Speaker 02:
Again, this is why we have an abuse of discretion standard, but there was an original complaint

[00:16:37] Speaker 02:
We moved to dismiss one of the things we moved to dismiss that original complaint was on the basis of the domestic takings rule.

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They amended their first amended complaint with our permission.

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They amended and they didn't address it.

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They didn't raise the they didn't say we're Dutch or we're stateless.

[00:16:52] Speaker 02:
They did say we were persecuted, but they didn't say

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we're Dutch, or we're stateless, or companies don't count.

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That wasn't in their amended complaint.

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And then we moved to dismiss again.

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We moved to dismiss the first amended complaint.

[00:17:04] Speaker 02:
And in their opposition, they didn't say, oh, well, we're Dutch, or we're stateless, or companies don't count.

[00:17:09] Speaker 02:
They didn't make any of those arguments there.

[00:17:12] Speaker 01:
What do you win if you prevail on the forfeiture argument?

[00:17:18] Speaker 02:
If the district court was correct that these arguments were forfeited, then the case is over.

[00:17:24] Speaker 01:
That case is over, but the adjudication would have been on the basis that these people were German citizens or nationals, which would not prevent them from bringing another suit claiming that they were Dutch.

[00:17:41] Speaker 02:
Well, Your Honor, I'm here on this suit.

[00:17:43] Speaker 02:
And I believe in this suit, it was forfeited as to what they choose to do in the future.

[00:17:46] Speaker 02:
That would be up to them.

[00:17:47] Speaker 04:
It would preclude them, wouldn't it?

[00:17:48] Speaker 04:
That's claim preclusion.

[00:17:49] Speaker 04:
And it includes arguments, whether you've raised them or not, that arise out of the common nucleus of operative facts.

[00:17:56] Speaker 02:
I suppose they're right.

[00:17:56] Speaker 04:
I think that would be raised to Ducata.

[00:17:58] Speaker 04:
And we're not called on to decide that.

[00:18:01] Speaker 02:
It might well be raised to Ducata.

[00:18:02] Speaker 02:
There might be statute of limitations issues.

[00:18:04] Speaker 02:
I don't know, Your Honor.

[00:18:04] Speaker 02:
But that would be a decision for plaintiffs to make and arguments to be had in a further case if that's something they decided to do.

[00:18:10] Speaker 02:
Let me turn to the minute.

[00:18:13] Speaker 02:
Well, actually, let me just mention one other element very quickly of prejudice here.

[00:18:18] Speaker 02:
One of the grounds we moved to dismiss our original was foreign convenience.

[00:18:22] Speaker 02:
And, of course, we didn't have the advantage at the time of knowing that they were going to claim to be Dutch nationals, of knowing that Dutch nationality law might come into play, or that they weren't German nationals and that we would need to show that, in fact, the German law of nationality was relevant

[00:18:37] Speaker 02:
in addition to whatever other German bodies of what were relevant.

[00:18:40] Speaker 02:
Well, if we've been able to raise that at the forum non-convenience argument stage, that might have taken the scales for the district court.

[00:18:47] Speaker 02:
And that decision, of course, also would have been under abuse of the discretion standard.

[00:18:51] Speaker 02:
So that's another kind of prejudice that was suffered here by them not raising the argument that.

[00:18:55] Speaker 02:
Again, we think the argument was forfeited, but I do, in the time that's left, want to address the merits.

[00:19:00] Speaker 02:
As Randolph, as you pointed out, the companies are the ones who were the members of the consortium.

[00:19:07] Speaker 02:
And I just want to point out, this is unequivocal in the operative complaint here.

[00:19:12] Speaker 02:
Paragraph one, the very first paragraph of the complaint, which you can find on page 896 of the Joint Appendix, in talking about the Delfin Shots owner says, those owners were a consortium

[00:19:24] Speaker 02:
of three artular firms in Frankfurt.

[00:19:28] Speaker 02:
It's their allegation.

[00:19:29] Speaker 02:
It's clear that German companies, three German companies, were the members of the consortium that owned the property that was allegedly taken.

[00:19:37] Speaker 02:
Likewise, you can turn to paragraph 32 of the complaint, which one of you asked about earlier.

[00:19:44] Speaker 02:
That's on page 911 of the joint appendix.

[00:19:47] Speaker 02:
And here again, it says, only these three art dealer firms, and then it names them, were the signatories to the contracts of 1929, that's when Development Shots was bought, and 1935, that's when it was sold.

[00:20:00] Speaker 02:
So the plaintiffs themselves have admitted that this property was owned by corporate entities in Germany, in Frankfurt.

[00:20:08] Speaker 02:
They have never argued that these companies were not German, nor could they.

[00:20:12] Speaker 02:
These were companies that were on the commercial register in Frankfurt, as they themselves have acknowledged.

[00:20:18] Speaker 02:
And there is no doubt that under international law, the

[00:20:23] Speaker 02:
The corporate reality has to be recognized.

[00:20:26] Speaker 02:
This court holds that in Helmerich, and it's a longstanding customary international law principle.

[00:20:31] Speaker 02:
It goes back to the Barcelona Attraction case, which is cited in this court's decision in Helmerich, as well as in the United States speak asleep in Helmerich.

[00:20:40] Speaker 02:
So it's very clear, as I tried to go to your earlier questions, that yes, you do have to care that companies owned this, that this was not individuals.

[00:20:49] Speaker 01:
So could you turn to, while we're on the appendix, I think it's

[00:20:53] Speaker 01:
One, zero, 19, 18 and 19.

[00:20:58] Speaker 01:
I'm sorry, Your Honor, I missed my page.

[00:21:00] Speaker 01:
One, zero, 18.

[00:21:01] Speaker 01:
1,018.

[00:21:02] Speaker 02:
Your Honor, that appears to be, if it's 1,018 of the Joint Appendix, I see a- 1,018 and 1,019.

[00:21:22] Speaker 01:
Yes, I see a list in German on page 1,018.

[00:21:26] Speaker 01:
Prussian stamp tax on the right?

[00:21:28] Speaker 01:
Yes, I do see that.

[00:21:29] Speaker 01:
On the left, is that the bill of sale?

[00:21:34] Speaker 01:
It's in German.

[00:21:40] Speaker 02:
Your Honor, this is, I believe, a list of the items that's part of the 1935 contract, which begins on page 1,011.

[00:21:50] Speaker 01:
Right, and it's dated Berlin, June 14, 1935, which was the date of the sale.

[00:21:58] Speaker 01:
That's correct, Your Honor.

[00:21:59] Speaker 01:
Okay, now look at the next page.

[00:22:03] Speaker 01:
And it's a Prussian stamp tax, apparently imposed on the sale.

[00:22:10] Speaker 01:
And down the bottom, well, down in the bottom, this is the translation.

[00:22:16] Speaker 01:
It gives the date, June 14, 1935.

[00:22:20] Speaker 01:
expected, right?

[00:22:22] Speaker 01:
You see that?

[00:22:27] Speaker 02:
Uh, expected illegible on six.

[00:22:30] Speaker 01:
Okay, then look at, look at the third entry.

[00:22:38] Speaker 01:
This Mr Rosenbaum and Mr Rosenberg and their address is Amsterdam.

[00:22:44] Speaker 01:
Yes, your honor.

[00:22:47] Speaker 01:
Am I to infer from that that they were living in Amsterdam at the time of the sale?

[00:22:54] Speaker 02:
They may have been, Your Honor, the complaint as Mr. O'Donnell's record states that they had emigrated to the Netherlands sometime between 1933 and 1935.

[00:23:03] Speaker 01:
But it's not clear when.

[00:23:05] Speaker 01:
But let me go to it.

[00:23:07] Speaker 01:
The reason I'm asking you is because undertaking law that particularly is the Supreme Court interpreted here

[00:23:16] Speaker 01:
The question is what the nationality was at the time of the sale.

[00:23:21] Speaker 01:
That's correct.

[00:23:22] Speaker 01:
So if they were not in Amsterdam at the time of the sale, then the nationality clearly seems to me is German, whether by the individuals or the corporations either way.

[00:23:35] Speaker 01:
But if they were in Amsterdam at the time of the sale, it might be a different matter, particularly since if you go further in the appendix that

[00:23:48] Speaker 01:
Page 1020.

[00:23:49] Speaker 01:
Can you turn to that?

[00:23:53] Speaker 01:
Yes, sir.

[00:23:54] Speaker 01:
They're listed as former owners of the company.

[00:23:59] Speaker 02:
Yes, sir.

[00:23:59] Speaker 02:
So let me say two things.

[00:24:01] Speaker 01:
And there's another entry, I've forgotten where it is, that indicates that by September of 1935, their company was defunct.

[00:24:12] Speaker 02:
Well, there are, in fact, the complaint states the company continued operations in Frankfurt until 1937, with one of their brothers running operations in Frankfurt.

[00:24:22] Speaker 01:
Oh, I think you're right.

[00:24:23] Speaker 01:
Yeah, I have to correct myself.

[00:24:25] Speaker 01:
I think it was a 1941 entry that said it was different.

[00:24:29] Speaker 02:
I believe that they allege that the company continued operations until 1937 and that it was removed from the commercial register in 1938.

[00:24:36] Speaker 02:
That is that the company became defunct in 1938.

[00:24:39] Speaker 02:
Our expert on German law notes that this is a company in Winestown and that these two individuals are acting for the company in Winestown.

[00:24:47] Speaker 02:
And they're, of course, collecting the assets before they're distributed to the owners of the company.

[00:24:51] Speaker 02:
But it's still a company.

[00:24:52] Speaker 02:
And that's why it's listed as three.

[00:24:55] Speaker 02:
That is, they're not separately listed as three and four.

[00:24:58] Speaker 02:
It's a single unit.

[00:24:59] Speaker 02:
So it's still a company.

[00:25:01] Speaker 02:
And Barcelona Traction and this court's decision on the homework are still relevant.

[00:25:05] Speaker 02:
But let me go to the deeper question that Your Honor asked, which is, what if we ignore corporate nationality?

[00:25:11] Speaker 02:
Were these two men Dutch nationals at the time of the alleged taking of the property?

[00:25:16] Speaker 02:
And the answer to that is unequivocally no.

[00:25:20] Speaker 02:
Under the international law of nationality, you look to each state's nationality law.

[00:25:26] Speaker 02:
And there is nothing in the record the plaintiffs have before suggesting that these two individuals were no longer German nationals in June of 1935 or that they were Dutch nationals.

[00:25:35] Speaker 02:
In fact, the only materials that this court has in the appellate record are the laws, the relevant laws, as well as experts' analysis of the laws of both the Netherlands and of Germany.

[00:25:47] Speaker 02:
And under German law, Professor Jan Thiessen points out that these people clearly were nationals of Germany.

[00:25:53] Speaker 02:
The mere fact of leaving Germany, even if you did not intend to return, did not mean that you lost your German nationality under German law.

[00:26:00] Speaker 02:
By the same consequence,

[00:26:02] Speaker 02:
Professor Kompfens with regard to Dutch nationality law, and she attaches all of that law, which was available to the district court.

[00:26:10] Speaker 02:
Under Dutch nationality law, it was simply not legally possible to become a national within two years.

[00:26:16] Speaker 02:
Under Dutch nationality law, it was a minimum period of time of five years before you could even apply for nationality.

[00:26:24] Speaker 02:
Someone doesn't become a national just because they go there, even if they intend to live there.

[00:26:28] Speaker 02:
You don't become a national in the United States because you come here on a work permit or a tourist visa or you come here as an undocumented person.

[00:26:35] Speaker 02:
You become a U.S.

[00:26:36] Speaker 02:
national if, in fact, you apply for and receive either legal permanent residency or citizenship in the United States.

[00:26:42] Speaker 02:
Same in the Netherlands.

[00:26:43] Speaker 02:
In the Netherlands, you needed to wait five years to even apply.

[00:26:46] Speaker 02:
Well, five years, even taking them

[00:26:48] Speaker 02:
They've left themselves a two-year window.

[00:26:51] Speaker 02:
If we take the beginning of that window, 1933, they couldn't have become Dutch nationals until at the earliest, 1938.

[00:26:57] Speaker 02:
So we're talking about years after the sale and issue here.

[00:27:00] Speaker 02:
And again, returning to German nationality law, it's clear that they were German nationals in June of 1935.

[00:27:07] Speaker 02:
And they put forward nothing.

[00:27:08] Speaker 02:
Their argument simply is ignore that.

[00:27:10] Speaker 02:
They say ignore what the actual laws of Germany and the actual laws of the Netherlands are.

[00:27:16] Speaker 02:
And instead, just look at the totality of the circumstances.

[00:27:19] Speaker 02:
You decide in the abstract what constitutes nationality.

[00:27:23] Speaker 02:
You decide if country and person have enough of a link.

[00:27:27] Speaker 02:
And I want to put out the point now that they have nothing to support this.

[00:27:31] Speaker 02:
There's no source, a steep climb, I believe, Judge Piller, you referred to earlier.

[00:27:36] Speaker 02:
It's a steep climb to find a principle of established customary international law, which is, of course, based on the practice of nations, other nations, based on a felt sense of legal obligation.

[00:27:48] Speaker 02:
Well, it's a steep climb indeed, and they've pointed to nothing that suggests that someone loses the nationality of their birth because of

[00:27:56] Speaker 02:
mistreatment or because of some totality of circumstances analysis, they don't cite a single case.

[00:28:02] Speaker 02:
There's no international law on that whatsoever.

[00:28:04] Speaker 02:
What they're trying to do is the same problem that happened in the earlier assignment decision.

[00:28:09] Speaker 02:
They're trying to put a square peg in a round hole.

[00:28:12] Speaker 03:
Is there any de facto statelessness by virtue of the persecution?

[00:28:17] Speaker 02:
There's not there's there's no established.

[00:28:19] Speaker 02:
In fact, if you look at there was reference earlier to section 175 of the second statement, and that's not that was not raised by plaintiffs in this case.

[00:28:27] Speaker 02:
I know they forfeited the whole thing, but they didn't even raise that restatement section in their appellate briefing in this case.

[00:28:33] Speaker 02:
But if you look at that, if you look at the second reporters to that section, you'll see the reporter saying,

[00:28:38] Speaker 02:
I'm paraphrasing, but the reporter says, wow, you know, the law of statelessness is really not clear.

[00:28:43] Speaker 02:
And that's why we're trying to develop international conventions to deal with it.

[00:28:47] Speaker 02:
And they reference something called the Harvard Draft, which is a convention that I believe never entered into force.

[00:28:56] Speaker 02:
But I understand the desire is to apply human rights principles to the notion of nationality because of stateless people not having any kind of protection.

[00:29:05] Speaker 02:
But as the Supreme Court held in Philip, we look to the relevant body of law.

[00:29:10] Speaker 02:
Human rights law exists on its own.

[00:29:12] Speaker 02:
Nationality law is separate from that.

[00:29:14] Speaker 02:
And speaking to Judge Pillard's point earlier, Judge Childs, the international law of expropriation is the relevant body of law that we look to in claims under expropriation, et cetera.

[00:29:24] Speaker 03:
And then with respect to the forfeiture issue, does it matter about plaintiff being in the status of an appellee with respect to the argument?

[00:29:33] Speaker 02:
No, because they're the plaintiff below.

[00:29:36] Speaker 02:
So we're looking at what happened in the district court, as your honor knows well.

[00:29:39] Speaker 02:
We're looking at what their arguments were.

[00:29:42] Speaker 02:
We moved to dismiss, and in their opposition to the motion to dismiss, or in their amendment the first time around, they could have tried to lead around or argue around these issues.

[00:29:53] Speaker 02:
They didn't.

[00:29:54] Speaker 02:
That argument was never raised.

[00:29:55] Speaker 02:
So that's always the case for a plaintiff's forfeiture.

[00:29:58] Speaker 02:
A plaintiff needs to respond to the arguments made by a defendant in a motion to dismiss or a motion for summary judgment.

[00:30:07] Speaker 04:
Sir, if one were to move beyond

[00:30:10] Speaker 04:
forfeiture and address the question of at least statelessness, if not Dutch nationality.

[00:30:19] Speaker 04:
Is it preferable to rest on the lack of customary international law supporting the notion that individuals become stateless by virtue of experiencing persecution, or alternatively hold that a state's taking of a de facto

[00:30:39] Speaker 04:
Stateless person's property, assuming that the person is defective, stateless does not violate international law.

[00:30:50] Speaker 02:
I think this court can and should say both.

[00:30:53] Speaker 02:
There is no custom that precludes a state from taking the property of a stateless person.

[00:31:01] Speaker 02:
So that's on question.

[00:31:04] Speaker 02:
The other proposition is clear as well.

[00:31:07] Speaker 02:
You know, in either event.

[00:31:09] Speaker 04:
Even a de jure stateless person.

[00:31:12] Speaker 04:
No international law.

[00:31:13] Speaker 02:
That's correct.

[00:31:14] Speaker 04:
It's not just a question of no nation state to champion ever since.

[00:31:19] Speaker 02:
Right, right.

[00:31:20] Speaker 02:
What Philip, obviously the central animatic principles of Philip in describing the international law of expropriation talks about the traditions of international law being concerned with relationships between states, not between states and individual persons.

[00:31:35] Speaker 02:
Human rights law later emerged to deal with the problems of a state's mistreatment of its own people.

[00:31:40] Speaker 02:
But with regard to the traditional international law of takings, which is what we're looking at here, that only involves relations between states.

[00:31:48] Speaker 02:
So there's no harm to a state that occurs when a stateless person's property is taken.

[00:31:54] Speaker 02:
And I guess one way to make that very clear for the world is if we imagine that a state takes the property of a person from another state, it's that other state that traditionally has the claim that can espouse that claim.

[00:32:07] Speaker 02:
And that state can get the money.

[00:32:09] Speaker 02:
That state decides whether it gives the money to the individual or not.

[00:32:13] Speaker 02:
It belongs to that other state, games of war versus reading, going way back.

[00:32:18] Speaker 02:
But so, you know, there's no, in the international law of takings, even in that circumstance, which clearly falls outside the domestic takings rule, there's no concern with the rights of the individual.

[00:32:28] Speaker 02:
This just isn't the body of law that addresses that.

[00:32:31] Speaker 02:
That's what human rights law is.

[00:32:38] Speaker 02:
Thank you, Mr. Berman.

[00:32:51] Speaker 04:
One minute remaining for a bottle.

[00:32:52] Speaker 00:
Thank you, Your Honor.

[00:32:53] Speaker 00:
To quickly address where Mr. Freiman ended, if that interpretation of section 1605A3 were correct, there would be no expropriation exception because all foreign nationals fully vested with the citizenship of another country would be equally without remedy, as Mr. Freiman just said, it would be for their state to bring.

[00:33:10] Speaker 00:
The FSIA doesn't do that.

[00:33:12] Speaker 00:
with regard to the preservation question.

[00:33:14] Speaker 00:
It cannot seriously be suggested that we never argued or said these people weren't German.

[00:33:20] Speaker 00:
We said so in so many words, in the complaints, in the second, in the amended complaint, in our opposition to the motion to dismiss.

[00:33:29] Speaker 04:
I believe you only said they emigrated.

[00:33:32] Speaker 00:
No, we said the plaintiffs were officially no longer considered German.

[00:33:38] Speaker 00:
This is in our opposition brief.

[00:33:40] Speaker 00:
The SPK can't decide whether it's the brief or the complaint it controls.

[00:33:43] Speaker 00:
But either way, we said it over and over and over again.

[00:33:47] Speaker 00:
And today, as Mr. Zell said, as Yom HaShoah and for the Federal Republic of Germany,

[00:33:51] Speaker 00:
to argue that somehow it is unfair to embrace the context of what it did is absurd.

[00:33:58] Speaker 00:
And the source of international law that I would point to is what everyone outside this case understands to be true, which is that the Nazi party refused to recognize Jews as Germans.

[00:34:09] Speaker 00:
Thank you.

[00:34:12] Speaker 04:
Thank you all.

[00:34:13] Speaker 04:
The case is submitted.