norrington the history of judicial resolution of these types of holocaust restitution claims that has been in cooperation with and encouraged by both political branch a foreign policy decision or government interests that would have to be reviewed or second guessed and adjudicating these claims the type of evidence that is usually found in executive orders executive agreement this case accordingly the district court erred in not construing narrowly the doctrine as required by ninth circuit and supreme court precedent in favor of exercising their article three subject matter jurisdiction according to the court in the alfred dunhill case where the state department has no position unless constrained by established policy the courts can best discharge their more affirmative or aggressive position and you said that the political branches had actually endorsed the court's resolution of holocaust related claims what do you point to for that statement we hold to the that's been affirmed that that's for the policy of the state department that all obstacles should be removed from the court hearing holocaust restitution cla history then was somewhat but the statement in that letter doesn't absolve us of our responsibility to look at the just disability question it doesn't it's not an endorsement that the addressing the removal of obstacles to the rule of law in the court and the courts exercising their article three jurisdiction to aid in the compensation and end of full recovery by these victims there is more evidence we have in our in the record the eisenstadt report which we began after a long cold war history began looking at it's specially to investigate the holocaust issues his report has stated in more than one instance that the class actions were the catalyst for any recovery or executive negotiations that helped in this effort to compensate victims i can refer you to the case of the german defendant where his affidavit in that case specifically references the class action lawyers and the class action suit being the catalyst for negotiations between governments even even commencing in the first place moreover there has been continued state department encouragement of all compensation and the application of the rule of law there has been no evidence from the state department or the political branch that were heard in the eastern district of new york and litigated in none of those cases was the fact that the state department was in negotiations to mediate settlement between the parties never did that stacked against resolution never was there a statement by the government that we would have excluded that the state department would take exclusive when a nice for the holocaust victim the aftermath of these hostilities and world war two has really been left to the executive and to the treaty making process to to resolve that it seemed to me that at least five members of the supreme court were pointing us to the political question issue with that statement and we do just that it is there anything different thing garamendi out of the supreme court that we should be looking that the federal government was responsible for foreign relations and should not be compromised by the state intervention into thought or all affairs into foreign affairs that language cannot be grafted into the political question and the government of germany france and austria that established a par with that must be applied in those cases and the california statute in garamendi was found to compromise that policy in this case we have no evidence of a policy from the government that would be adjudicated as unwinds that would be second guessed in this case when the court applies the standards available to it to resolve expropriation claims as i understand it the invitations have been made to the federal government for intervention here have they not ye stronger i have what has been the response to that the response has been and that the decision is not to intervene formally in the case at this time i was asked not to argue one way or the other on the merits of the case as regarding that decision i was asked to inform the state department of this hearing i have not been notified that they're here but i did do that said that the state department has spoken to me personally that they were aware that the case was in the northern district was aware of the case and that it had been dismissed we believe it is significant that they have not exercise their right to intervene through a statement of interest which has been done repeatedly when they feel their government interest their state department and executive interest are at risk and that's and i mean that's an argument that has them have facial appeal actually the one question i have is that if we were to take it at face value you basically would be dictating executive branch action because they would then have to come in one way or the other on every case that's filed and basically the last time super monitoring power over all these potential partner lesions cases and it seems to me that public policy and actual consequence of your position would really put the state department in a bind of basically being a monitor of the literally hundreds of cases that get filed around the country i understand your concern and that was expressed in the dissent  the majority had specifically referenced the statement of interest power that the government had and had had stated that as a matter of the preemption doctrine analysis that interested be considered by the courts and the dissent argued that that was getting really too much power for our policy to dictate the subject matter jurisdiction is too however what the court  was that deference propre yet in these types of matters where there is a clearly established policy placed in evidence in a case we have no clearly established policy keep referring to secretary eizenstat to what extent are his views somehow persuasive in the resolution of this issue i mean you said you seem to cite him for the proposition that he's an authority on this question he was a state department person and he seemed to indorse the idea that a class action is helpful to the resolution of these issues is that right i am i am arguing that point your honor if you look at his memoirs however he  makes somewhat disparaging remarks about the class action attorneys i'm sure you're probably seen as any hope of containing the controversy by quiet diplomacy and the volcker audits ended when a group of class action lawyers got action lawyers i once again explain why there was no choice but to deal with the lawyers the us government cannot snap and fingers and make the lawsuits disappear so if you take a look at that small snippet it suggests that the very least that he's  voice both written and or all of the state department being that we have no evidence presented in this case has been the voice of the policy that is commensurate with judicial resolution of the claims not only did he broker a settlement with the i'd like to read also from his memoirs regarding dealing with the lawyers and the cases that went on to broker a battlement with the german defendant that included settling claims on behalf of plaintiffs  dismissed by the district of new jersey on political question doctrine and even know what and to get the burger official cases that have been used by the district court below in justifying her opinion which that was one of my questions some of these cases can about to the courts because there were settlements broken and then they basically were confirming settlements were they not they weren't in effect and originally filed cases that went through on the m a number of these cases like the one you're referring to now were you were guys instead trying to help with the settlement they really exist outside the court system until such time as they want to and forced the settlements and that i would disagree that they exist outside the court system because there has been ample judicial review of the settlement the fairness of the class action and definition the claims that were appropriate under under those settlement agreements there have there has been in the german defendant's litigation a long opinion regarding the parties to the claims that the parties are bringing was a german defendants one that was that rested on a contract or some other document the german defendant litigation was different in one sense the only way that there could be a settlement amongst the parties the li the federal government through stuart eizenstat safir agreed to submit statements of interest in all cases dealing with these german defendants that were brought after the settlement that it was in the foreign policy interests to have th claims barred but even in that agreement that executive agreement between germany and the united states came out of the settlement it stated that it should not be used as an independent basis for dismissing the claims that these claims would where the court below erred when she used these cases that anyone know and birth fischer because in those cases there were post war germany agreements that should have been interpreted as to barring the claims or not a willing partner it is doubtful we could have imposed a government to government settlement on the parties the united states so prides itself on the access it doesn't have to the court to handle a myriad of complaints other societies and outside the judicial system i've been wrong to a lack of judicial discoverable unmanageable standards for resolving in the district court took a look at this and so this is simply beyond the capacity of the district court to cope with on page thirteen of the court's opinion i'm sure you've read it you know it's weak recovery of money and assets withheld from specific accounts but rather the undetermined value of property stolen in untold ways in a multiplicity of regions by both military personnel and civilians point of claims require this court to resolve the completing rights to the us national treasury a potentially hundreds of thousands of citizens of various nations funds as to which any number of persons harmed by the regime both represented and not might equally assert a claim you know the district court in three terms is throwing up its hands and saying this is gigantic and it's ancient and there's no way that a court has the capacity to handle this your answer the district court got just political questions into wrong by equating manageability of the factual issues with whether there are manageable judicial standards to apply to the issues before the court enrichment and restitution there need be no review of any decision made by the executive branches like the king says that the winds are going to tell where there was a political question and i there are only two maybe three out of the ten or eleven cited by us there has been a direct requirement in the remedy issued by the record the court that the political prances do are not do something that would be a case where there are no judicial to is really more a down the road issue a potential classification of the political question issue is really whether it would be politically implicated standards in order to have to resolve a case exactly legal you're saying that the district court made a legal misjudgment interpret in that part of the standard yester honor the manageable standards and now with us does not look to the massive amounts of evidence that must be reviewed by the court which happens particularly since class action litigation what doesn't look to in this context look to whether there is evidence of a foreign decision that is that risk of being reviewed by the court issuing compensation and a can of full accounting which had been requested by the state department of the wisdom of any government after decision i'm quoting from northrop court case nine hundred eighty three before the ninth circuit i am also looking at the new language out of the couey case the federal court the district courts in managing complex cases i continue on you know when cases in which there was considered to be a political question because the decisions of the now national defense policy must be reviewed in vague the time is too long the identity of the tortfeasor is too indefinite the procedures sought adjudication of some two hundred thousand claims for multifarious damages inflicted twenty to twenty or thirty years ago in the european area by government then and powers too complicated too costly to justify undertaking by a court without legislative provisions and means thereby to proceed i mean isn't that pretty much what the district court said we have here ye court have now forty years of managing class action case the rule twenty three which was adopted that year the court had no experience with me with managing complex cases we've had since for revision of the manual for complex litigation that is given to our federal courts which give ample standards allow proper when think experts in accounting issues allow for special masters to be appointed allow for that was not the case at the park the point is that kelderman interprets the language that you're talking about to allow these kinds of considerations to be put on the scale and that's what the district court did here put these these kinds of issues on that scale i would allow that there are some there is one prong of the judicial national standards and now assess that looks at what i would consider a rule twenty three manageability however the primary inquiry as stated in all of the cases political question cases is whether or not there is any governmental decision or policy that must be reviewed courts don't have the standards for making policy decisions goes to prongs for i would argue again that it does not but i will address that since i hear a concern about manageability although i do believe that the district court has the standards which is the question of political question to manage complex case and there is ample evidence raised him because we normally would review this political question as a legal issue and yet it seems to me that the kind of issues imbedded in two are the kind that normally we would defer to the district court on what's your thought on standard of review when we get to as part of the overall  standard was applied correctly to the facts of this case and in that sense we can look to the allegations the allegations do as you say cover historically a broad long and sparse time in time and even geographic space however the courts have the standards for dealing with international litigation indeed under the foreign sovereign immunity backed which is one of our subject matter jurisdiction allegation allegations the courts have dealt with cases involving foreign sovereigns and their instrumentalities where discovery must insist do against that and congress has endorsed that in regard to holocaust claims in the found that it was probably difficult to draw much of anything from the altman case because of it in the rest political question and it was one piece of art but is there something in that case you think we ought to be looking to in support history of the three branches marching in tandem with the overall arching policy to compensate and apply the rule of law to the holocaust victims against european governments their bank well as private companies in the district court's view of this case its point of claims require this court to resolve the competing rights to the treasury of potentially hundreds of thousands of citizens of various nations do you disagree with that i disagree with that in your complaint itself you say this is this case is brought on behalf of the name plaintiffs and all serbs jews and former soviet union status and and their heirs and beneficiaries who suffered physical monetary and or property losses including slave labor due to systematic and brutal extermination of jews serbs and romania the as a result of the occupation of the former soviet union by croatian military forces in concert with their german occupation forces so you bring to the court all serbs jews and former you are a soviet union certification stage before the district court for court the definition of the class itself the allegations that are brought do not require i believe the question was looking at the competing rights was looted unlawfully which is what we allege and i see taken as true then that money must be compensated the eustacia treasury itself only need to be reviewed and following the chain of evidence from the treasury but europe is of course the solution of the rights of hundreds of thousands if not millions of people all serbs jews everybody involved who might have been tangled up in this horrible mess in europe for years exactly what is happening in the bank cake today where claims are being administered to holocaust victims who are the victims of the bank banks procreation in switzerland being administered by the eastern district of new york  happening in the french banks kate and before the eastern district of new york that came out of god in our case that we did it is also being done in the austrian banks case there are manageable standards and president arms i think i'd like to begin today by there isn't a lot of time so i'm just going to also press tell us what you think is the points that professor boyd has raised and i think the first point i'd like to start with is the last point she made which related to the manageability issue and the nature of the complaint it's it's correct say that by and large these cases are disposed of taking the allegations of the complaint as true the allegations of this complaint do include allegations of atrocities and co conspiracy in the commission of war crimes implicating a foreign sovereign that's a position that the district court invited professor boyd to abandon at oral argument and she embraced that that's on page sixty nine of oral argument and oral argument by the way which went on for two and a half hours i'd like to make that point in regard to the question of whether or not the district court a careful look at this case and conducted a discriminating analysis not everything that appears and a and opinion reflects all of the things that a district court judge necessarily considers i n this case we had one hundred fifty pages of briefing other submissions and two and a half hours of oral argument perhaps not proceeding too quickly for the translator focus on your case  yes the question before the court as it's framed here is whether or not a discriminating analysis was undertaken and appellants position is that not everything was considered in order to uphold the district court's or look at the quality of the district court's opinion it may be worthwhile to look at the full panoply of evidence that was considered by the district court  understood let's try to pinpoint something that i'm thinking about as the professor avoids as the district court made a mistake on prong to make reverse discard by misinterpreting the phrase a lack of judicially discoverable imaginable standards for resolving it is the duty of the district court to not not necessarily simply consider the methods which have been used but the notion of discoverable and manageable standards may include the possibility of prospectively inventing a scheme for managing the case that does not require that the case a case some more case has been managed in the past she wasn't really making that argument as her first line she said that the difficulty is the where you get to that argument that as a matter of law the district court misinterpreted prone to at odds with north and other ways that it's not really kind of a class action is it too big for the court has spread when it's a question of whether the standards one would need to use to put the case through which implicate they look to the nature and complexity and difficulty of handling farrelly the case and here taking the complaint is true that poses a significant problem not only for the reasons cited cited by your honor but also because we're talking about unlike the altman case we're talking about property that clearly by the terms of the complaint itself can no longer be identified and property which by the terms of the complaint itself passed into this alleged treasury was mixed with other property and then in some portion passed out and apparently according to the complaint went somewhere into rome possibly into the vatican bank if you want this money it doesn't matter if it goes in now or whatever there's a significant difference between each of the cases which has carved out an exception based upon identifiable property and this case in each of those cases  there is a specific knowledge of who took the property who may have the property it's transmutation and it it does not pass through multiple hands multiple treasuries and there is scenario with the case i don't recall the specific language of the case with respect to that point i do recall the discussions of manageability and the holocaust cases which have each taken a position that they lack of capacity of a district court for example to issue discovery on foreign sovereigns collect the evidence necessary to reach a fair conclusion and in this case i think most importantly to adjudicate claims of various successor states to the state of yugoslavia which is one of the things that would have to happen here clearly is well beyond the province of a district court to manage as you know and is remarked in the seven sixty seven third avenue case which deals specifically with yugoslavia the in the history of that country is that after after world war one it was formed it broke up there prior to during world war two s saying whatever i mean all those kind of go to the merits and then pretty soon this thing shrinks probably quite why wouldn't we let it go to that because we have pretty sophisticated district judges that have manageability of some worldwide class action and that that is definitely an important point councilmen says but what about the swiss bank and german we seem to be going going foundation or the austrian foundation and the terms of the settlements call for relaxed standards of proof and providing evidence of a claim council we have that all the time in class sections in the such that in an administration would take place would require the gathering of evidence from multiple countries evidence over fifty years old and intrusions upon various sovereign hearings noted that he found fairness in the settlement precisely because of the the the weight and non frivolous nature of the political question motions to and the district judge can do like the thank you new york that is not part of the political question inquiry and that's the fundamental answer to that question go over a lack of judicially discoverable unmanageable standards why is this different the fact that defendants consented to have the cases and the claims administered by the district court in no way i would urge should affect this course the terminations as to whether these claims which are particularly tenuous with one reviews carefully the allegations of the complaint this court on a political question ground and we do have here a significant overlap of the two prongs because the question of manageability to the extent that it relates to the opening of  goes directly to one of the foreign policy initiatives announced in the eisenstadt report at the beginning of that report page one forward which is attached to to our brief points out something very specific the united states supports a foreign policy initiatives to come to a historical rec you know in other cases the other branches and when we talk about political question we're talking about our cry partite governmental system the other branches himself and let's get into the act i understand this case exactly the opposite has taken place just in that on the question of whether the judicial branch should be entering this area i think the answer is decidedly no for a couple of reasons first of all it's in the nature of foreign policy that what goes on in the conduct of foreign policy is not all known to the public therefore for this court to use what is in the public domain as some sort of a litmus test is whether or not there is a foreign policy interest in this area would be a mistake and that's the first point  fact we do have evidence in this case of a foreign policy interest in the area and i can call to the court's attention because this was a particular interest to me and i had been thinking about it in preparing for hearing in the last couple of days plaintiff's position as well the eisenstadt report clearly does take some interest in it they point made by the district court they talk about the vatican they talk about they talk about the need to resolve these claims and they call them diplomatic efforts so with respect to this issue the executive has occupied specifically this area pla have suggested in their papers that that ceased at some point and that this court should be looking to the state department all the time to see whether or not possibly from administration to administration there's a foreign policy initiative in a particular area that approach is mistaken because it requires that the court look to the public domain as to whether or not foreign policy initiatives are are being conducted now in this case i do have i have found evidence if the court wishes to receive it in the form of a letter dated june sixteenth two thousand and two issued by the state department stating i located the document it does suggest that there is a continuing more than suggests that states specifically that the state department favors raval resolution of these claims is working on a government to government and this relates specifically to the claims in what is now serbia and croatia another point in this regard which to my mind is to explain why important  f the executive determines that it is not going to pursue at some point a diplomatic initiative that does not remove it from the realm of diplomacy for example in the yugoslav case in the case of the balkans there are many many urgent problems there which are in need of resolution whether or not right now the state department is holding in advance resolution of these matters does not mean it's not a matter for the state department to handle it's very important the lack of closure is what makes this a political question and the lack of a treaty and this that somehow been covered by a treaty and there were substantive rules of decision making the same argument would you case treaties have been offered by the parties both below and here to indicate that these are the kinds of claims that is reparations which are generally handled by state to state negotiations and  of the treaties here it's not just a question of is it handled by a treaty or is it not handled by treaty and this is part of the lower court appellate court confusion but that treaties are evidence of the kinds of claims which are handled by the executive and therefore for coverage by a treaty are political questions  for the court to insert itself into this process and the example of the difficulties and the balkans is a prime example are numerous points if if if i could be allowed three more minutes i will try to make them may i please go ahead with thank you the other side more time so it's only you've used the same amount of time much appreciated first of all i would cite to the court the seven sixty seven park case related to the issue of successor states as an extremely important case in caused the damage are all very clear in that case also with respect to the statement of interest issue statement of interest are coming out in these cases all the time now simply because that is part of the agreement negotiated between president clinton and the german chancellor at that time there was an agreement that the united states duty would be discharged in those cases by filing statements of interest doctrine should apply indeed the the state department may have the tone reasons for in some cases submitting a statement of interest and another is not that is not  in the case is that some combination of taking the facts in the complaint as true with some judicial notice of documents outside or facts outside relevant to the proceedings possibly treaties and then the court reaching a conclusion without applying a particular burden to one or another however in the ninth circuit for example where under the case the political question doctrine is viewed as a question of subject ma rather than a mere ause thing the subject matter jurisdiction normally subject matter jurisdiction requires the burden of a showing on plaintiffs not defendant i think that the burden certainly doesn't fall  the original i look for it that relates to very specifically identifiable property and these are the only exceptions this is the only principle which s the rule that reparations claims belong to the state and the national who has suffered the damage precisely the holding of burger fisher and i w and i represent the appellee the order of priors minor our position is basically the same as my colleagues position i would just like to bring it down to a more fundamental level and focus on the first prong of the baker factors which the courts have held to be the most important factor and in any event if any one of the factors one of the six fact understand that ok constitution as relevant here regions of articles one to give the political branches the power to make war and determine the terms of its resolution the courts have interpreted these powers as specifically including the controlling case law a step cited in the italians griefs established that the clip the political branches of the united states government have been actively involved in addressing reparations issues involving holocaust victims claims holocaust or assets as well as several numerous other treaties and executive agreements entered into in one of the united states and other countries after world war two these traditionally commitment of this country's political branches to address and resolve holocaust victim claims as a result i did have one question on that that is we are dealing are we not in political again a specific identifiable properties opposed to the allegations of the incident complaint which care to take advantage of it of the claims before the court whether or not they will beat a challenge to the will of any governmental decision will be adjudication interesting and whaling the court stated that controversies that revolve around policy choices and value determination committed to a resolution to the halls of congress or the confines of the executive branch are political questions however the judiciary is suited for cases that are legal in nature that have legal standards to apply to p ninth circuit precedent or the supreme court precedent which requires an analysis of the type of inquiry before the court here expropriation claims of fund looted regardless of whether actions with specific legal standards that address the questions under manageability whether that's a superior method or not and do take into account factual issues that are better left to the district court where they can apply the standards they have they are not the inquiry of the political question doctrine under the president as the supreme court and the ninth circuit you have about thirty seconds the three branches from the evidence in the record have marched in tandem in the overriding policy to compensate the victims through judicial means as well as diplomatic and congressional means that ha claims before the court there is no evidence here that any policy determination must be reviewed and accordingly article three subject matter jurisdiction that exist in this case should be exercise counsel we thank our delegation from china we hope this has been an interesting persuading the case is complex complicated and difficult for your benefit the three of us later on today will sit down discuss the case try to decide it and eventually will send a written decision to the parties telling them what it is and we wish you all the best on your stay in the united states this case just target is ordered submitted and will take a five minute recess in order for the court room to