# First National City Bank v. Banco Nacional de Cuba
## Concurring Opinions

    Douglas
    Powell

## Dissenting Opinion

    Brennan
Supreme Court of the United States
406 U.S. 759
First National City Bank v. Banco Nacional de Cuba
Certiorari to the United States Court of Appeals for the Second Circuit
No. 70-295. Argued: February 22, 1972 --- Decided: June 7, 1972
This case involves a claim by respondent for excess collateral it had pledged with petitioner to secure a loan, and a counterclaim by petitioner for that excess as an offset against the value of petitioner's property in Cuba expropriated by Cuba without compensation. The District Court recognized that this Court's decision in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, holding that generally the courts of one nation will not sit in judgment on the acts of another nation within the latter's territory (act of state doctrine) would bar assertion of the counterclaim but concluded that post-Sabbatino congressional enactments had in effect overruled that decision. The court issued summary judgment for petitioner on all issues except the amount available for possible setoff. The Court of Appeals revered, holding that Sabbatino barred assertion of the counterclaim.
Held: The judgment is reversed. Pp. 762-776.
MR. JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE and MR. JUSTICE WHITE, concluded that since the Executive Branch, which is charged with the primary responsibility for the conduct of foreign affairs, has (contrary to the position it took in Sabbatino) expressly represented to the Court that the application of the act of state doctrine in this case would not advance the interest s of American foreign policy, the decision in Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F. 2d 275, should be adopted and approved, thus permitting judicial examination of the legal issues raised by the act of a foreign sovereign within its own territory.
MR. JUSTICE DOUGLAS concluded that the central issue in this case is governed by National City Bank v. Republic of China, 348 U.S. 356 (holding that a sovereign's claim may be offset by a counterclaim or setoff), rather than by the Bernstein exception to Sabbatino, and accordingly would allow the setoff up to the amount of respondent's claim. Pp. 770-773.
MR. JUSTICE POWELL, believing that Sabbatino's broad holding was not controlled by the principles underlying the act of state doctrine, concluded that federal courts have an obligation to hear cases such as this one and to apply applicable international law. Pp. 773-776.
442 F. 2d 530, reversed and remanded.
REHNQUIST, J., announced the Court's judgment and delivered an opinion in which BURGER, C. J., and WHITE, J., joined. DOUGLAS, J., filed an opinion concurring in the result, post, p. 770. POWELL, J., filed an opinion concurring in the judgment, post, p. 773. BRENNAN, J., filed a dissenting opinion in which STEWART, MARSHALL, and BLACKMUN, JJ., joined, post, p. 776.
Henry Harfield argued the cause and filed briefs for petitioner.
Victor Rabinowitz argued the cause for respondent. With him on the brief was Leonard B. Boudin.
Solicitor General Griswold filed a memorandum for the United States as amicus curiae urging reversal.