UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2002 (Argued: Ap ril 15, 2003 Initially D ecided: Augus t 6, 2003 (Remanded by S upreme Cour t:: June 14 , 2004 (Re-Submit

ted: Septem

ber 10, 2004

) Decided: Nov ember 23, 20 05 Errata Filed: January

6, 2006) Docket Nos . 02-9361, 0 2-3087 D ORIT W HITEMAN , A LFON S S PERBER , H ERTHA F IELD , A LICE J AY S USSMAN , A NITTA L EA , R OBERT W EINBER GER , RUDOLF A USPITZ , M AX U RI , F RIT Z U RI , L EO G RANIE RER , S OPHIE H ABER , G ERTRUDE F IALA , H ARRIET M EHL

R OTTENBERG , G ERDA F ELDSBERG , A LEXANDER -S ANDOR F ÜRST , E RNST B. R IVIN -RIESENFELD , L IZZY R APPB AUER , RUTH D AVIDOVITS , D OROTHEA W INKLER , E RICH R ICHARD F INS CHES , M ICHAEL S CHWARZ , H EINZ B ISCHITZ , L OT TIE M ECZES SCHWE NK , L UGE S VOBODA , F RIEDER IKE H ERZL , R OBERT K

LEIN , Plaintiffs-Appellees,

v. D OROTHE UM G MB H & C O KG, also known a s Dorotheum Auktions-Versatz-Und Bankgesellschaft MBH, R EPUB LI C OF A UST RIA , Ö STERR

EICHI SCHE I NDUST RI EHOLDI NG AG, Defendants-Appellants, V OEST -A LPI NE S TAHL AG, VA T ECHNOLOGIE AG, B ÖHLER U DDEHOLM AG, ÖMV AG, R AI FFEI SEN Z ENTRAL Ö STERR

EICHI SCHE B ANK A.G., S TEY -D AIMLER -P UCH AG, also know n as Stey D aimler-Pu ch Spezi alfahrze ug AG, al so known as Stey Daimler Puch Fahrzeug Technik AG, U NIQA V ERS IC HERUNGE N AG, A UST RI AN D OE C ORPO RATION S 1 TO 100, E RSTE B ANK D ER O ESTERREIC HIS CHEN S PAR KAS SEN AG, Defendants.2

________________ In re R EPUBLIC OF A UST RIA , D OROTHE UM G MB H & C O KG, and Ö STERR

EICHI SCHE I NDUST RI EHOLDI NG AG,

Petitioners.

_________________ D ORIT W HITEMAN , A LFON S S PERBER , H ERTHA F IELD , A LICE J AY S USSMAN , A NITTA L EA , R OBERT W EINBER GER , RUDOLF A USPITZ , M AX U RI , F RIT Z U RI , L EO G RANIE RER , S OPHIE H ABER , G ERTRUDE F IALA , H ARRIET M EHL

R OTTENBERG , G ERDA F ELDSBERG , A LEXANDER -S ANDOR F ÜRST , E RNST B. R IVIN -RIESENFELD , L IZZY R APPB AUER , RUTH D AVIDOVITS , D OROTHEA W INKLER , E RICH R ICHARD F INS CHES , M ICHAEL S CHWARZ , H EINZ B ISCHITZ , L OT TIE M ECZES SCHWE NK , L UGE S VOBODA , F RIEDER IKE H ERZL , R OBERT K

LEIN , Plaintiffs-Respondents, v. R EPUBLIC OF A UST RIA , D OROTHE UM G MB H & C O KG, Ö STERR

EICHI SCHE I NDUST RI EHOLDI NG AG,

Defendants-

Petition ers, V OEST -A LPI NE S TAHL AG, VA T ECHNOLOGIE AG, B ÖHLER U DDEHOLM AG, ÖMV AG, R AI FFEI SEN Z ENTRAL Ö STERR

EICHI SCHE B ANK A.G., S TEY -D AIMLER -P UCH AG, also know n as Steyr D aimler-Pu ch Spezi alfahrze ug AG, al so known as Steyr Daimler Puch Fahrzeug Technik AG, U NIQA V ERS IC HERUNGE N AG, A UST RI AN D OE C ORPO RATION S 1 TO 100, M

AGNA S TEY , E RSTE B ANK D ER O EST ERREI CHI SCHE N S PAR KAS SEN AG, & D AVI D H. P IKUS ,

Defendants. Before: K

EARSE , C ABRANE S and S TRAUB , Circuit Judges

. Before us are (1) an interlocutory appeal by the Republic of Austria, challenging a discovery order of the United States District Court for the Southern District of New York (Shirley Wohl Kram, Judge

), aimed at determining whether plaintiffs can establish subject-matter jurisdiction (No. 02-9361), and (2) Austria’s petition for a writ of mandamus to compel the District Court to rule on3

defendants’ pending motion to dismiss (No. 02-3087). We are asked by the Republic of Austria— and by the Uni

ted Statesand the Amer

ican Council f

or Equal Comp ensation o f Nazi Victims fro m Austria, as amici curiae —to dismiss this case, which is reported to be the sole remaining obstacle to the implementation of a fund to compensate Austrian Jewish victims of the Nazi regime for Holoca ust-relate d property d eprivati ons. VACATED in part, DISMISSED in part, and REMANDED in part. Judge Straub dissents in a separate opinion. G REGORY S. C OLEMAN (Christian J. Ward, Konrad L. Cailteux, Nina Nagler , of counsel ), Weil, Gots hal & MangesLLP, New Yo rk, NY, appearing on behalf of Defendants-Appella nts and Petitioners Republic of Austria and Os

terreic hische Indus

trieholdi ng AG. William M. B arron, Als ton & Bir d LLP, New

York, NY, appearing on behalf of Defendant-Appellant an d Petitioner Dorotheum GmbH & Co KG

. Jay R. Fialko ff (Phil

ippe Zimmer

man, Jayso n D. Glass man, of counsel ), Moses & Singer LLP , New York, N Y, appearing on behalf of PlaintiffsAppellees Whiteman, et al

. B ERNAR

D W. N USSB AUM , Wachtell, Li pton, Rosen & Katz, New York, NY , appearing on behalf of Uni

ted States District Judge Shir ley Wohl Kram. C HARLE S G. M OERDLER (James A. Shifren, Joseph E. Strauss, Jeremy S. Rosof, of counsel

), Strooc k & Stroock

& Lavan LLP , New York, NY, appearing on behalf of Amicus Curiae the Austrian Jewish Community. D OUG LAS H ALLWARD -D RIEMEI ER (Willia m H. Taft IV, Jonathan B. Schwartz , Wynne M. Teel, R obert D. McC allum, Gre gory G. Ka tsas, Jr., Mar k B. Stern , of counsel

), Department of Justice, Washington, D.C., appearing on

behalf of Amic

us Curiae Unit

ed States o f America in support of Defendant-A

ppellant Republi

c of Austr ia

. Stanley M. Ch esley (Jean

M. Geoppin

ger, of counsel

), Waite, Schneider, Bayless & Chesley Co., L .P.A., Cincin nati, OH, appearing on behalf of Amicus Curiae

American Cou

ncil for Equ

al Compensatio

n of Nazi Vic

tims from Austr ia.4

J OSÉ A. C ABRANES , Circuit Judge : We are asked by

the Republic o f Austri

a—and by the U nited Stat es and the Am erican Council for Equal Compensa tion of Naz i Victims f rom Austria , as amici curiae —to dism iss this case, which is reported to be the sole remaining obstacle to the implementation of a fund to compensate Austrian Jewish victims of the Nazi regime for Holocaust-related property deprivations. That fund was created i

n 2001 purs uant to an ex ecutive agreement between the United S tates and Au stria. This put ative classaction agains t Austria, certain of its inst rumentali ties (collectively, “Austria”), and other Austrian entities arises from sweeping confiscations of property that were part of the systematic Nazi victimization of Austrian Jews between 1938 and 1945. The severity of property expropriations by the Nazi regime cannot be overstated. We are reminded of the words of Judah Gribetz, the court-appointed Special Master in a separate Holocaust reparations case: “[T]here is scarcel y a victim of

the Nazis wh o was not lo oted, and on nearly an inco mprehensible scale.” In re Holocaus t Victim As

sets Litig ., 302 F. Sup p. 2d 89, 95 (

E.D.N.Y. 200 4) (inter

nal quotation marks omitted). Before us are (1) an interlocutory appeal by Austria, challenging a discovery order of the United Stat

es Distr ict Court f

or the Sou

thern Dis trict of

New York (Sh

irley Wohl Kr

am, Judge ), aimed at determining whether plaintiffs can establish subject-matter jurisdiction (No. 02-9361), and (2) Austria ’s petitio n for a writ o f mandamu s to compel the Distric t Court to rul e on defen dants’ pending mot

ion to dis miss (N o. 02-3087) . This isthe second time that t

his case com es before

us. See Garb v. Republic of P

oland , 72 Fed. App x. 850 (2d Cir . 2003) (s ummary or der). We cons

ider it anew followi

ng a remand f

rom the Su

preme Cour

t. See Republic of A ustria v. Whi teman , 124 S. Ct. 2835 (2004) . In the ti

me between ou

r 2003 dis position

of these m atters and the Supreme Court’s remand, th e Court res olved the question of the retro activity of

the Forei gn Sovereign

Immunit ies5

Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1602-11, in the affirmative, but reserved the question of how much deference should be accorded to views of the Executive Branch in asserting jurisdiction over a foreign sovereign, see Republic of Austri a v. Altmann , 541 U.S. 677 (2004). We consi der the la tter questi on today. The past two presidenti al admin istrations, notwiths tanding th eir differences in p olitical aff iliation, h ave committ

ed the Unite d States t

o a policy of resolving Holocaust-era restitution claims through international agreements rather than litigation. Consistent with that policy, the United States has engaged in extensive international negotia tions culminatin

g in a 2001 execu

tive agreement with Aus tria to es tablish a f und to comp ensate Aus trian Jews (and their heirs and successors) whose property was confiscated during the Nazi era and the Second World War. Distributions from the Austrian compensation fund remain, however, contingent on the dismissal of this case. Accordingly, the United States has submitted a Statement of Interest urgin

g dismis sal. In light o f the Supreme Court’s political question ju

risprudence, as well

as its re cent rulin

gs directing “ case-spec

ific deference” to the expresse d foreign p olicy interests of the United S tates, Sosa v. Alvare z-Machain , 124 S. Ct. 27 39, 2766 n.21 (2004); see also Altmann , 541 U.S. at 7 02, we hold t hat deference to a statement of foreign policy interests of the United States urging dismissal of claims against a foreign sovereign is appropriate where, as here, (1) the Executive Branch has exercised its authorit y to enter i

nto executi

ve agreement s respect

ing the res olution of

those claim s; (2) th e United States Go vernment (

a) has est ablished t hrough an ex ecutive agreement an alter native inter

national forum fo r considering the cla ims in ques tion, and (

b) has ind icated that,

as a matter

of foreig n policy, the al

ternative f orum is s uperior t

o litigatio n; and (3) t

he United St

ates foreign policy advanced by the executive agreeme nt is substantially undermined by the continuing pendency of the claims. Mindful of the Supreme Court’s recent emphasis (albeit in a different legal context) on1 References to the “Complaint ” are t o the f irs t amended complain t date d August 24, 2001. Al though t he complaint

was agai n amended on November 11, 2002, t his s econd amendment occurred aft er defendant s-appel lant s fi led a Notice of

Appeal, thereb y conferr ing j uris dicti on on thi s Court t o revi ew porti ons of t he Distr ict Court’ s June 5,2002 and O ctob er 9 , 200 2 or de rs. 6 preserving the “‘capacity of the President to speak for the Nation with one voice in dealing with other governments ’ to resolve claims . . . arising o ut of Worl d War II,” Am. Ins. As

s’n v. Garame

ndi , 539 U.S. 396,

424 (2003) (quoting Crosby v . Nat’l For eign Trade Council , 530 U.S. 363 , 381 (2000) ), we dismiss plaintiffs’ claims against Austria in deference to the stated foreign policy interests of the United St ates. B ACK GRO UND Plaintiffs are present and former nationals of Austria, and their heirs and successors, who seek compensation for the taking of their property in that country during the Nazi Era and the Second World War. I. District Court Proceedings Plaintiffs c omprise a c lass of “pre sent and fo rmer citiz ens and resi dents of Aust ria of Jewi sh descent [a nd their he irs and ben eficiari es] who . . . were vi ctims of Naz i persecut ion [and] whose

assets w ere convert

ed and human r

ights were barbarou sly violate d” from 19 38 to 1945. Co mpl. ¶ 2. 1 They filed

suit on O ctober 20,

2000 in the U nited Stat

es Distr ict Court f

or the Sou

thern Dis trict of New Yor k, bringi ng claim s against t he Repub lic of Aust ria and a number of it s instrumenta lities, including D orotheum

GmbH (an auc tion hous e owned and con trolled by the Republic o f Austri

a that Whiteman alleges recently sold property that was expropriated from Austrian Jews during the class per iod, see id. ¶¶ 31, 100-02) and Österreichische Industrieholding AG (an instrumentality through wh ich the R epublic of Austria h as owned, operated , and con trolled c ommercia l enterpri ses, see id. ¶ 88). Plaintiffs’ claims are based principally on Austria’s “looting, expropriation,2 See also 28 U.S.C. § 1604 ( “[A] for eign s tat e shal l be i mm une from the j uris dicti on of t he courts of the United State s and of the State s exc ept a s pro vide d in s ectio ns 16 05 to 160 7 of th is cha pter .”); Kato v. Ishiha ra , 360 F. 3d 106, 107- 08 (2d Cir. 2004) (describing t he FSIA as codifying a “restr icti ve theory of sovereign i mm unity, under which forei gn sovereigns . . . enjoy immu nity from suit in United S tates courts, subject to a few, enum erated statutory exc eptions” (internal q uotation ma rks, footn ote, and citations om itted)).

3 28 U.S.C. § 1605(a

)(1) provides that (a) A forei gn st ate s hall

not be imm une from the j uris dicti on of court s of t he United St ates or of t he Stat es inany case . . . (1) in whi ch the f oreig n sta te has waived i ts i

mm unity either expl

ici tly or by imp lication, notw ithstand ing any withd rawa l of the w aiver w hich the foreign state m ay pu rport to effe ct ex cep t in ac cor dan ce w ith the term s of th e w aive r[.]

4 28 U.S.C. § 1605(a

)(2) provides that (a) A forei gn st ate s hall

not be imm une from the j uris dicti on of court s of t he United St ates or of t he Stat es inany case . . . (2) in whi ch the ac tio n is based upon a commercial acti vit y carri ed on in t

he United St ates by the f

oreig n sta te; or upon an ac t perf ormed in the United St ates in connec tio n with a commercial act

ivi ty of t he forei gn st ate el sewhere; or upon an ac t outs ide th e terr ito ry of t he United States in connection w ith a comm ercial activity of the foreign state elsewhere and that act causes a dire ct eff ect in the U nited State s[.]

5 28 U.S.C. § 1605(a

)(3) provides that (a) A forei gn st ate s hall

not be imm une from the j uris dicti on of court s of t he United St ates or of t he Stat es i n any c ase . . . (3) in wh ich ri ght s i n prop ert y ta ken i n vi ola ti on of

int ernat ion al l aw are in i ssue and that p rop erty or an y pr ope rty e xch ang ed for su ch p rop erty is pre sent in the Un ited S tates in connecti on with a commercial ac tiv ity carri ed on in t

he United St ates by the f oreig n sta te; or tha t propert y or any pr operty exchanged for such prope rty i s owned or oper ated by an agency or inst rumentali ty of t

he forei gn st ate and t

hat age ncy or i nstr umentali ty i s engaged i n a commercial activ ity in th e U nited State s[.]

7 Aryanizatio n, and/or l

iquidation ,” id. ¶ 98, of the property interests of “any Jewish Austrian or former Au strian person,” id. ¶ 95. Because pla

intiffssought t

o hold Aust

ria liable in

courts o f the Unit

ed States, and because, under the F SIA, “a for

eign state i s presum

ptively imm

une from t

he jurisd iction of U nited Stat

es courts[ ,] unlessa specified

[statut ory] except

ion applies ,” Saudi Arabia v. Nelson , 507 U.S. 349 , 355 (1993), 2 plaintiff

s asser ted that th

ree exceptio ns to the F SIA apply to their claim s—namely, ( 1) “waiver,” pursuant to 28 U.S.C. § 1605(a)(1), 3 Compl. ¶ 44 ; (2) “comm ercial activi ty,” purs uant to 28 U.S.C. § 1605(a)(2), 4 id

. ; and (3) “takings,” pursuant to 28 U.S.C. § 1605(a)(3), 5 id

.6 The Ga rb case w ill be dec ided in a sepa rate op inion by this Cou rt. 8 Austria moved for dismissal on sovereign immunity grounds, arguing that the exceptions to sovereign immunity em

bodied in t

he FSIA sh ould not be

applied ret

roactively t

o conduct t

hat predates that statute’s enactment in 1976. In an order dated June 5, 2002, the District Court declined to r

ule on Aust

ria’s mot ion to dis miss and i

nstead or dered the p arties to

engage in limi

ted discovery to settle, primari

ly, issues of subject

-matter j urisdict

ion. Whiteman v. F

ed. Republic o

f Austria , No. 00 Civ. 8006 (SWK), slip op. at 5 (S.D.N.Y. June 5, 2002). Austria appealed that interlocutory discovery order to this Cour t, No. 02- 9361, and fi

led a petitio n for a wri

t of mandam

us to comp el the Distr ict Court t

o rule on t

he pending m otion to d

ismiss , No. 02-30 87. We consolidated these actions with the appeal in Garb v. Republi c of Poland (No. 02-7844) for oral argument. 6 See Garb , 72 Fed. App x. at 853. II. This Cour

t’s August

6, 2003 Sum

mary Order We heard this appeal on April 15, 2003, and, in light of a supervening and c ontrolling decision by another panel of our Court in Abrams v. Société Nati onale Des Ch emins De Fe

r Francais , 332 F.3d 173 (2 d Cir. 2003) , we entered a s ummary or der on Augus t 6, 2003, ( 1) vacating t he Distr ict Court’s June 5, 2002 discovery order; and (2) denying Austria’s petition for a writ of mandamus to compel the D istrict

Court to d ecide the pend

ing motion

to dismis s, see Garb , 72 Fed. App x. at 855. Relying on Abrams

, we stated that this case “raise[d] the threshold questions whether and on what terms the federal courts have jurisdiction under the [FSIA] to adjudicate the liability of sovereign states f or conduct

occurring prior to the statu te’s enactm ent [in 1976

].” Id. at 853. We explained, bo und as we th en were by Abrams , that wheth er the FSI

A could be ret

roactively ap plied depende d upon whe ther doing so would ha ve an “im permissible ‘retroact ive effec t’—that is, whether applying the FS IA would ‘im pair right s a party po ssess ed when he acted , increase a p arty’s7 We n ote that both the Un ited States Stateme nt of Interest and the U nited States Supp lemen tal Letter were

submitt ed joi ntly by the Uni ted Sta tes Depart ment of Jus tic e and the Depart ment of Sta te, thus r epresent ing t he consi dered views o f both Departments—indeed, o f the Exec utive Branch of t he Government—that “th e forei gn poli cy int erest s of t

he United St ates support dismis sal of pla

int iff s’ c lai ms.” Unit ed Stat es Suppl emental Let ter, at 1. 9 liability f or past co nduct, or

impose new d

uties with respect t o transact ions alread

y completed. ’” Id. (quoting Abrams

, 332 F.3d at 180-81). As requir ed by Abrams

, we remanded this case to the District Court to determine “the Departmen

t of State’ s policy pr

ior to [t he enactment

of the] FS IA with res pect to so vereign immunity f

or . . . Aus tria in th e circumst ances pres ented in” th

is case. Id. at 854. Austria then moved for a stay of the issuance of our mandate pending its petition to the Supreme Cou

rt for a wr it of cert iorari; we g

ranted thi s motion

on September 10, 2003. On June 14,

2004, the Su

preme Cour

t granted Au stria’spetition f or writ of certiorar i, vacated our judgment, and remanded this case to us “for further consideration in light of Republic of Austria v. Altmann , 541 U.S. [6 77], 124 S. Ct . 2240 [] (2 004).” Republic of A ustria v. Whi teman , 124 S. Ct. 2835 (2004). III. Participation of the United States Government Since the Supreme C ourt’s rema nd, the pa rties and v arious amici curiae , including t

he United States, have filed supplemental letter briefs with this Court with respect to a post- Altmann disposition of this appe al. The Un ited Stat es, as amicus curiae , has filed a letter br ief, supplementing a Statement of Interest it submitted to the District Court, and restating its view that there are no principles of international law that proscr ibe or regu

late the taki

ng by Statesof the pro perty of t heir own national s. See

Letter of Gregory G. Katsas, Deputy Assistant Attorney General, Department of Justice, and William H. Taft, IV,

The Legal Ad

viser, Dep artment o f State, at 8 -12 (Sept. 9, 2004) (“United States Supplemental Letter”). 7 The United States also participated “to inform the Court of10

its foreign policy interests

with regard to claims for restitution or compensation by Holocaust survivors and other v

ictims of the Nazi era, ” id

. at 2 (empha sis added

), and urged

us to dis miss th

is case in deference t

o these int

erests. See id

. at 1, 3-8. Underscoring that “[n]o price can be put on the suffering that these victims endured[,]” and concluding t

hat “the mor

al imperati

ve remainsto provide some meas ure of jus tice and to d o so in the victims’ remaining lifetimes[,]” the United States asserted its foreign policy interest that “matters of Holocaust-era restitution and compensation . . . be resolved through negotiation and cooperation, rather than subjecti

ng victimsand their f

amilies to the prolo nged uncert

ainty and dela

y of litigat ion.” Id. at 2. Accordi

ngly, the Uni

ted Stateshas infor

med the Cour

t that [i]n January 2001, after facilitating multilateral negotiations involving government s, compani es, and vict ims’ repr esentativ es, the Uni

ted States and Austria concluded an executive agreement that led to the creation of the General Settlement Fund [“GSF”], a fund to be capitalized with $210 million plus interest to make payments to Austrian victims o f Nazi-era p ersecutio ns. Appro ximately 20, 000 claims have already been submitted to the GSF, but full funding of the GSF awaits dismissal of this litigation

. . . .

. . . [I]t is in the foreign policy in terestsof the Unit

ed States f or this action to be

dismiss ed on any valid

legal ground . The Unite d States and Austria have entered into an executive agreement, whic h led to the establishment of [the GSF] to make payments to certain victims of the Nazi era whose property was confiscated, including members of the proposed plaintiff class. It would be in the interests of the United Stat

es for th e GSF to be t

he exclusiv

e remedy for

all such claims, and our foreign policy interests favor an all-embracing and enduring legal peace for

Austria and Austrian companieswith resp ect to claims s uch as plaintiffs’. Payments und er the GSF will not be gin until all prior li tigation pe nding in Unite

d States co urts has bee n dismissed. This is the final cas e remaining . The cont inued pendenc

y of plainti ffs’ claims t hus impedes the s

uccess o f this impor

tant forei gn policy initiative , and threate

ns the foreign policy interests of the United States. United States Supplemental Letter, at 2, 6 (emphases added) (citation omitted).8 Plaintiffs allege that “A ustria ha s failed an d refu sed to live up to its State Trea ty obligation s to effec tuate

rest orati on, or

even the alte rnati

ve Treaty o bligati on of reco mpense where res torat ion i s imposs ibl e.” Compl. ¶ 21. 11 a. Negotiat

ions and Inte

rnational Ag

reements Leading to t

he Creatio n of the Gen eral Settl ement Fund The expres sed views o f the Unit ed States m

ust be und erstood

against th e backdrop o f over fifty years of diplomatic negotiations with the government of Austria regarding the settlement of Nazi-era claims. In Article 26 of the State Treaty for the Re-Establishment of an Independent and Democratic Austria (“Austrian State Treaty”)—a multilateral treaty ratified by the President of the United States on June 24, 1955 and that entered into force on July 27, 1955—Austria agreed to provide restitution for property that it had confiscated “on account of the racial origin or religion of the owner” d

uring the H olocaust and Second Wor ld War. See State Treaty for the Re-Establishment of an Independent and Democratic Austria, May 15, 1955, art. 26, 6 U.S.T. 2369, 2435-36. Soon thereafter, in 1958, the United States agreed that it “would no longer intervene diplomatically on behalf of cl

aimants under Article 26” if Aus tria acted t o settle victims’ clai

ms in good

faith. See IX Foreig n Relations o

f the United S

tates, 1958-1960 , at 769-70 ( Glenn W. LaF antasie ed.,

1993). Th

is underst anding was t

hen memorialized in a May 1 959 exchange of diplomatic

notes, whi ch constituted an executive agreement between the United States and Austria that entered into force on May 22, 1959. 8 See

Settlement

of Certain Cl

aims Under

Article 26 o f the Aust

rian State T

reaty, 10.2 U.S.T. 115 8. In February 2000, pa rtly in resp onse to cla ss action l itigatio n in Unite d States c ourts, negotiations involving the government of Austria and attorneys representing Holocaust victims commenced under the acti ve leadersh

ip of the Un

ited States Governmen

t. See Declaration of Stuart E. Eizenstat, Deputy Secretary of the Treasury and Special Representative of the President and Secretary o f State on H olocaust I ssues ¶ 5 (Jan. 19, 2 001) (“Eizen stat Declar ation”) (t ext repro duced12

at Supp. App . at 1039-54

and in Unite d States D epartment of State, Digest o

f United Stat

es Practi ce in Internatio nal Law for 20 01 , available at http://www.state.gov/documents/organization/16561.pdf.) Over the next nine months, negotiations focused principally “on a proposed initiative to establish a fund to ma

ke paymentsto victims

of slave and

forced labo r (and cert

ain others ) during Wo rld War II and the Nazi era.” Id

. Accordin g to Deputy Secreta ry of the Trea sury Stuart E . Eizen stat, the c o-chair of these negotiations, “[t]he parties . . . anticipated that at the conclusion of an agreement concerning the establishment of a fund for Nazi-era forced and slave laborers who worked on the territory of the present-day Republic of Austria, the parties would commence negotiations concerning the establishment of a similar fund for those who suffered from aryanization, theft, or destruction of propert y on the ter

ritory of the present-day Republic of Aust ria durin g this sam e time perio d.” Id . ¶ 6. Indeed, “as a pre-condition . . . to concluding an agreement concerning forced a nd slave labor claims . . . ,

Austria co mmitted $1 50 million t o cover cert

ain proper

ty claims.” Id

. ¶ 7. On October 24, 2000, as the parties to the negotiations signed a Joint Statement expressing their su pport fo r the Aust

rian “Reconci

liation Fu nd” as the ex clusive remedy for al l Nazi-era f

orced and slave labor claims against Austria, the governments of the United States and Austria entered into an executive agreement. Agreement Between the Austrian Federal Government and the Governmen

t of the Un

ited States of America Co ncerning t

he Austrian Fund “Recon ciliation, P eace and Cooperation,” Oct. 24, 2000, 40 I.L.M. 523 (2001) (“Reconciliation Fund Ag reement”). In the Reconciliation Fund Agreement, “Austria committed that the operation of the Reconcil iation Fund would be governed by pr

inciples agr

eed [to] by t

he partiesto the negot

iations, and the United

States committed

to take cert

ain stepsto assis t Austria and Austr ian companies

in achieving ‘

legal peace’ in the United S tates with

respect t o forced and slave labor

claims aris

ing out of the Nazi era and World9 The Conference on J ewish Mater ial Claims ( “CJMC”) is an umbrel la organiz ati on whose member organizations include the A merican Gathering/ Fede ration of Jewish H olocaust Surv ivors, the Ame rican Jewish Com mittee, the Am erican Jewish C ongress, B’nai B’rith International, the Centre of O rganizations of Holoca ust Su rviv ors in Israe l, and the W orld Jew ish C ong ress. See Eizens tat Declarat ion, at 4 n. 2. For more informati on about t he CJMC, includi ng it s miss ion and a c omplete l ist of member organi zati ons, see Claim s Conference: The C onference on Jewish Ma terial Claims A gainst Germ any, 200 3 A nnual Rep ort with 200 4 H ighlights 1, 74 ( 2004), and the CJMC’s Websi te, http:/ /w ww .claim scon .org/ (last visite d Ju ly 21 , 200 5). 13 War II (and

any other cl

aims covered by the Recon ciliation F und).” Eizen stat Declar

ation ¶ 8. Moreover, the United States undertook to “take appropriate steps to oppose any challenge to the sovereign immunity o f Austri

a with resp ect to . . . other claims a rising out o f the Natio nal Soci alist era or World War II for which Austria and the United States agree that a suitable potential remedy has been provided.” Reconciliation Fund Agreement, 40 I.L.M. at 525 (emphasis added). The Reconciliatio n Fund Agreement enter ed into for

ce by exchange of

diplomatic

notes on D ecember 1, 2000, in the

final mont

hs of the administ ration of Presiden t William J. Clinton. See Eizenstat Declaration

¶ 8. In October

2000, negot

iations als o commenced c oncerning t he creation

of the General Settlement Fund (“GSF”) “to address all property/aryanization claims against Austria and/or Austrian companies arising out of the Nazi era and World War II, and all other Nazi-era claims against Aus tria and/o r Austr ian companies

not covered

by the Reconcil

iation Fun

d.” Id . ¶ 9. Again co-chaired

by Eizenstat

, these nego tiations“included t he United St

ates, the Au strian F ederal Governmen

t, Austr ian companies , and the rep resentat ives of th e victims i

ncluding th e Conference on Jewish Material Cla

ims, a non-government

al organizat

ion created

to negotiat

e for and adm

inister compensat

ion for N azi crimes t

o Jewish p eople around the world .” 9 Id . The Unite d States a lso confirms that, “thr oughout t he negotiations, atto rneys rep resentin g the victim s vigorou sly represen ted not onl

y the named pl

aintiffs , but also t

he interes ts of heir s and other s who are similarly situated. ” Id

. ¶ 28; Statem ent of Int

erest of the United S tates of A

merica, Whiteman v. F

ederal Republ

ic10 Specifically, it was agreed that GS F not be the ex clusive rem edy for claim s for in rem rest itut ion of works of art an d cla ims cov ere d by the R eco ncilia tion F und

. See Eize nst at Decl arat ion ¶ 10. It

shoul d be as sumed th rough out this op inion that th ese tw o ca tego ries o f claim s are exc lud ed from any gen era l refe ren ces to “all cla ims ” aga inst A ustria arising ou t of or relatin g to the N azi Era or W orld W ar II. 14 of Austri a , No. 00-8006 (SWK), at 14 (S.D.N.Y. Oct. 12, 2001) (“United States Statement of Interest”). These negotiations came to fruition on January 17, 2001, when “the parties to the negotiations gathered in Washington to sign a Joint Statement concluding the negotiations, and express ing their s upport f

or the GSF

as the exclu sive remed

y for all clai

ms arisi ng against Au stria and/or Austrian companies arising out of or relating to the [Nazi] Era or World War II,” with certain excep tions not

relevant her

e. 10 Eizenstat D eclaration ¶ 13. An agreem ent among th e parties became effect

ive on Januar

y 23, 2001, at

the beginni

ng of the adm

inistrat ion of President Ge orge W. Bush, “w

hen the Unit

ed States and Austria exchanged diplomatic not es expres sing Aust

ria’s commitment that the operation of the GSF will be governed by principles the parties agreed upon during th e negotiatio ns, . . . and the United S tates’ com

mitment t o take certai

n steps t o assist Austria . . . in achievi

ng ‘legal peace. ’” United St ates Statem ent of Int

erest, at 6. The agreement embod ied in this exchange of notes, Joint Statement and Exchange of Notes Between the United States and Austria Co ncerning t

he Establis hment of t

he General Se ttlement F

und for N azi-Era and Wo rld War II Claims, 40 I.L.M. 565 (Jan. 17, 2001) (“GSF Agreement”), is an executive agreement between the Governmen

ts of th e United Stat

es and Aust

ria, United

States St atement of

Interes t, at 6 n.4. On June 6, 2 001, the gov

ernment of

Austria ad opted legislation creat ing the GSF

. Id. at 6. On the same day, “the Austrian Federal Government provided the United States Government with a diplomati c note sti

pulating that Austri

a had fulfil

led the obli

gations ne cessary t

o bring int

o force” the GSF agr

eement. Id

. at 7.15

b. The GSF as

a Remedy for

Nazi-Era Pr

operty/ “Aryanizati

on” Claims Austria’s GSF legislation establishes an independent three-member Claims Committee to consider Nazi-era claims against Austria, with the United States and Austria each selecting one committee m ember, who w ould joint ly appoint a chairperso n. See United States Statement of Interes t, at 8-9; see also GSF Agreem ent, Annex A ¶ 2 .a, 40 I.L. M. at 571. T he claims com

mittee is required “ to establi sh simpl ified pro cedures” and to use “r elaxed standards of p roof.” Un ited States Statement o f Intere st, at 9; see also GSF Agreement, Annex A ¶ 2.c, 40 I.L.M. at 571. One half of GSF funds

will be allocat

ed through

a “claims-b ased” proc ess on a pr o-rata basis, and the

other half through an

“equity-ba sed” proce ss on a per -household basis. Eizenstat D eclaration ¶ 19; see also GSF Agreem ent, Annex A ¶ 2 .f-h, 40 I .L.M. at 57 2-73. In additio n, pursuant to the G SF Agreemen t, the gover

nment of Au stria has“enacted legislation establishing, funding, and authorizing a three-member Arbitration Panel . . . to consider, on a case-by- case basis , the in rem return o f publicly- owned prop erty, including property form erly owned by Jewi sh communal organizat ions.” Uni

ted StatesStatement o f Intere st, at 11; see also GSF Agreement,

Annex A ¶ 3, 40 I .L.M. at 57 4-76. Aust ria also “am ended certai

n pension a

nd social benefit laws

to assis t victimsof Nationa l Socialism .” United St

ates Statem ent of Int

erest, at 12; see also GSF Agreem ent, Annex A ¶ 4 , 40 I.L.M . at 576-77. In its Statement of Interest, the United States particularly underscores that “ all victims with Nazi-era claims against Austria and/or Austrian companies . . . are eligible to submit claims to the GSF.” Unit

ed States S tatement o f Intere st, at 13 ( emphasisin original

). Upon con sidering

the age of Holocaus t surviv

ors, the level of GSF

funding, t

he allocation

of GSF fu

nds, and t he GSF’s eligibility criteria, the United S tates rep resentsto us that “the resu lts of th e negotiatio ns as embo died in the GSF a

re fair under all the ci

rcumstan ces.” Id

. at 20; see also

id . at 20-22. Indeed, the position11 The United St ates Stat ement of In teres t i s echoed by amicus curiae American Council for Equal

Compensation of Nazi V ictims From Austria (“AC OA ”), which describes itself as “the single organization representing H olocaust survi vors f rom Austri a in America ,” and whos e “sol e missi on” for t he past thi rty- nine yea rs “has been to s ecure equal com pensation of all N azi vic tims from Au stria,” Br. of Amicus Cur iae Am . Counc il for Equal Co mpe nsation of Nazi Victi ms from Austri a at 4. The ACO A urges us t o dismis s thi s act ion i n order t o secure t o Holocaust vict ims the 16 of the Unit

ed States i s that th e GSF Agreem ent “represent[s ] a definit ive statem ent of U.S. foreign policy that the GSF provides the best mechanism for resolving claims such as plaintiffs’, by assuring broad cover

age of victim s and broad

participat ion by compan

ies, which co uld not be p ossible through j udicial pro ceedings, and providin g as expedit

ious as po ssible a m echanism f or making f

air and speedy payments to now elderly victims.” United States Supplemental Letter, at 8 (citations and internal quotations marks omitted).

c. United States Foreign Policy Interests in the GSF The United States further represents to us that it is in its “for eign policy interests . . . for the GSF to be the exclusive forum and remedy for the resolution of all claims against Austria . . . arising out of or relating t o the Natio nal Socialis t Era or Wor ld War II,”

and that “th e United Stat es Government believes that all [such claims] should be pursued through the GSF instead of the

courts. ” United Sta

tes Statem ent of Int

erest, at 15. Accordin

g to the Uni

ted States , its interests i

n the implementation of the GSF are five-fold. First, the United States invokes its “important policy objective . . . to bring some measure of justice to Holocaust

survivor s and other

victims o f the Nazi er

a, who are elderly and are d ying at an accelerated r

ate, in their

lifetimes .” Id

. “[T]he Un

ited States believes th e best way to

accomplish

this goal is through negotiation and cooperation,” and it represents to us that the GSF “is an excellent example of h ow such coop eration can lead to a posi tive resu lt.” Id . Therefore, it is the view of the United St ates that t he GSF “wi ll provide benefits to more victi ms, and wi ll do so faste r and with less uncertaint y than would l

itigation. ” 11 Id

. at 15-16. Indeed, “the United States hopes [that the GSF]payments now avai labl e to t hem from the GSF as a res ult o f the di plomati c negoti ati ons undert aken on th eir be half by the Unit ed Stat es—payments that are bei ng wit hheld pendi ng the t erminati on of t his a cti on.

17 will serve as an example to other nations and in other cases where resolution of claims by victims of the Nazi era f

or rest itution and compensat

ion has not

yet been achiev

ed.” Id . at 17. Second, it i s the position of t he United St

ates that t he establis hment of t

he GSF will strengthen the t

ies between t

he United St

ates and . . . Austria.

. . . Since 1945, the United States has sought to work with Austria to addressthe conseq

uences of t

he Nazi era and

World War I I throug

h politica l and gov ernmenta l acts, be ginning w ith the first compensation and restitution laws in post-war Austria that werepassed during the Allied occupation. In recent years, AustrianAmerican cooperation on these and other issues has continued, and the joint ef

fort to d evelop the Reco nciliation F und and the G SF has helped sol idify the close relationship bet ween the two co untries

. Id . (internal citations

omitted) . In thislight, the U nited Stat es has emphasized the r

ole of Aust

ria in “the prosperity of Europe”—particularly Austria’s efforts to “promot[e] democracy” and the “economic development of Central and Eastern Europe,” as well a s its support for the “integration of the European Union. ” Id . at 17-18. T

he United St

ates has in formed us

that “cont

inued cooperation with Austria”—which, it asserts, is being advanced by the GSF—“is important to helping achie

ve these Uni

ted Statesinterest s.” Id

. at 18. Third, t he United St

ates highli ghts that “the GSF he

lps furt her the Uni

ted States ’ interes t in maintai ning good relation s with Israel and with W estern, Ce ntral, an d Eastern E uropean n ations, from which

many of tho se who suf

fered dur ing the Nazi er

a and World War

II come.” Id

. Fourth, the United States anticipates that the alternative to the GSF—“years of litigation whose outcome would be uncertain at best, and which would last beyond the expe cted life span of the large maj ority of s urvivors ,” id .—“could lead to conflict among survivors’ organizations and among sur

vivors and Austria and Austr ian indust ry, confli cts into w

hich the Uni

ted States12 Our dissent ing col league s uggest s tha t we shoul d remand once more “for a determinat ion of whether circum stance s perm it and w arran t discretion ary d efere nce to the exe cutive foreign policy inte rests stated here.” D issent, at [42 n.28 ]. Qu ite ap art fro m the c onsid era ble ris k tha t any furth er d elay wo uld imp ose u pon elde rly vic tims cur ren tly awaiting com pensation, the dissent’s recomm endation w ould, in effect, encourag e a federal district court to second -guess the U nited State s G ove rnm ent’s f ore ign p olicy dete rm inatio n tha t— for a host o f rea sons , see United St ates Stat ement of Inter est, at 1 5-2 0, inc lud ing, inter alia , the import ance of pr eservi ng rel ati ons wit h all ied nat ions—the Unit ed Stat es 18 Governmen

t would inev

itably be dr

awn,” id . at 18-19. T

he Governm ent furt

her warnsthat such conflict would lik ely incl ude “thre ats of polit ical ac tion, boy cotts, and legal ste ps against corporat ions fro m Austria”—events t hat would “s et[ ] back Aus trian-Am erican econo mic cooperatio n.” Id

. at 19. Finally, the United States informs us that the GSF is a fulfillment of a half-century effort to complete the task of bringing a measure of justice to victims of the Nazi era. It is in the foreign po licy int erests of the United St ates to tak e steps to ad dress the conseq

uences of t

he Nazi era, t

o learn the lessonsof, and teach the world about, this dark chapter in European history and to seek to ensure that it never happens again. Id . (internal quotation marks omitted). Although the United States acknowledges that “no amount of money wil

l ever be enou

gh to make up

for Nazi- era atrocit

ies,” it underscores that th e GSF would make s ubstantial additiona l funds and other aven

ues of rel ief available. Id

. at 19-20. Under the GSF Agreement, a “precondition to allowing the GSF to make payments to victims” i s the “dis missal of all pending N azi-era pro perty/ary anization clai

ms against

Austria and/or Aus trian comp anies (as w ell as any oth er claim cover ed by the GSF

).” Id . at 19; see also GSF Agreement,

Annex C, 40 I. L.M. at 579 -80. The Un ited States informsus that pl

aintiffs ’ suit—t

his litigation —is the on

ly pending cla

im standi ng in the way of

the GSF’simplementa

tion. See United States Supplemental Letter, at 6. Because the continued pendency of this lawsuit “impedes the success of [an] important foreign policy initiative, and threatens the foreign policy interests of the United Stat

es,” the Go

vernment u

rges us t o dismis s it. Id

. 12shou ld hon or its com mitm ent to the GS F as the me chan ism fo r resolvin g this class of N azi-era c laims a nd to te rmin ate

thi s li tig ati on “on any val id le gal gr ound,” Unit ed Stat es Suppl emental Let ter, at 6. Because we decide, pursuant

to the poli tic al quest

ion doctrine a nd relat ed juri sprudence conc erning deference t o the Execut ive i n matters of for eign pol icy, that such quest

ions are nonj usti ciabl e, we decl ine our coll eague’s invi tat ion t o prol ong thi s li tig ati on further by a r emand of dubious purpose.

19 D ISCUS SION I. The Effect of A

lt m an n On remand,

we must fi

rst determine how Altmann informs our disposition of this case. In Altmann , the Supreme Court departed from what it termed a pre-existing “antiretroactivity presumption,” 541 U.S. at 696, and held that the FSIA, including its exceptions, is applicable to conduct th at preceded i

ts enactment. The Cou

rt explaine d that becaus e the doctr ine of for eign sovereign immunity “ reflectscurrent p olitical re alities and relations hips,” id. , courtshave traditionally “resolved questions of foreign sovereign immunity by deferring to the decisions of the political br

anches,” id. (internal quotation marks omitted). The Court identified the FSIA as “the

most recent such dec

ision” and , “absent co ntraindic ations,” h eld that cou rts sho uld defer t

o it—that is, apply it retroactively—rather than “presume” it inapplicable “merely beca use it postdates the conduct in q

uestion. ” Id. Yet the Altmann Court “emphasiz[ed] the narrowness of [its] holding,” attributable in part to the particular post

ure assu med by the Exec

utive Bra nch in that c ase. Id

. at 700-02. The Court underscored that the United States Government had chosen not to submi t a statement of itsforeign policy interests implicated by the exercise of jurisdiction in Altmann

. Id . at 701-02 & n.22. The Court then advised that in future cases, “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the20

Executive on a

particular question of foreig n policy.” Id

. at 702 (fo otnote om

itted). Si nce no such State Department opinion was expressed in Altmann , the Court declined to explicate further the circumstances under which it would be appropriate for a federal court to defer to a statement of foreign policy interes ts of th e United Stat es in decidi

ng whether t

o assert jurisdic tion over a

foreign sovereign in a particular case

. A few we eks after i ts Altmann decision, the Court again urged “case-specific deference to the political branches” in Sosa , 124 S. Ct. at 2766 n.21. Relying on Altmann , the Sosa Court st ated (albeit in dicta ) that whe n the Unite d States Go vernment su bmits statem ents of inte rest to fede ral courts, “there isa strong ar

gument that

federal cou

rts sho uld give ser

ious weight

to the Execut

ive Branch ’s view of the ca se’s impa ct on fore ign policy.” Id

. The Court again did not specify how much weight we should give to sta tements of U nited Sta tes foreign policy i nterests, or u nder what circumsta nces. II. Deferenc e to the U nited St ates Stat ement of Interest Unlike Altmann , this cas e has elicite d a statemen t of inter est in which

the United S tates invoked “its foreign policy interests” to urge the dismissal of plaintiffs’ claims. When the Government first presented its statement of interest to the Distr ict Court, it did not urge that Court to rest on the foreign policy interests of the United States as “an independent legal basis for dismissal.” United States Statement of Interest, at 20. In the wake of Altmann , however, t he United States no longer offers this qualification and instead asserts that deference to “the views of the Executive on this nation’s foreign policy interests in determining whether to exercise jurisdiction in a particular case” supp orts th e dismiss al of plaint iffs’ clai ms. Unite d States Su

pplemental L

etter, at 1 ; see also id . at 4-8. We are, therefore, squarely faced with the issue reserved in Altmann and Sosa —when, and to what extent, should the stated foreign policy interests of the United States be13 While we readi ly acknowl edge that

the Supre me Court has not yet had occ asio n to re ach a hol ding i dentic al to t hat of the cas e at bar , we nonet heles s concl ude, i n light of the Court ’s r ecent pr onouncements and f or the reasons elabor ated bel ow (1) t

hat defer ence to t

he Executi

ve is appropri ate i n certain cas es and (2) t hat the case at bar i s one such case

. 21 accorded def

erence. 13 In the circumstances presente d in this c ase, we hold t hat deferen ce is appropriate. Judicial def

erence to th e Executive B ranch on qu estionsof foreig n policy haslong been establis hed under t

he prudent

ial justici ability doct

rine known a s the “poli

tical quest ion” doctr ine, which we apply h ere. See, e.g. , Baker v. Carr , 369 U.S. 186, 211 (1962) (“Not only does resolution of [foreign relations] issues frequently turn on standards that defy judicial application, or involve the exercise of

a discretion demons trably comm itted to t he executive o r legislat

ure; but m any such question s uniquely

demand sin

gle-voiced s tatement o f the Gover nment’s v iews.” (fo otnotes omitted) ). Yet the Su

preme Cour

t has warne d that it is err or to sup pose that

every case or

controver sy which to uches foreign r elations l ies beyond j udicial cogni

zance. Our cas es in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the polit

ical branches , of its s usceptibi lity to jud icial handlin

g in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. Id . at 211-12. We, too, have em

phasized that [n]ot every case “touching foreign relations” is nonjusticiable and judges sh ould not r

eflexively in

voke these doctrinesto avoid dif ficult and somewha

t sensit ive decisio ns in the co ntext of h uman right s. We believe a preferable approach is to weigh ca refully the relevant considera tions on a c ase-by-c ase basis. Kadic v. K aradzic , 70 F.3d 232 , 249 (2d Cir . 1995) (in ternal cita tions om itted); see also Klinghoffer v. S.N.C. Achil

le Lauro Ed Al

tri-Gest ione, 937 F.2d 44, 49 (2d Cir. 1991) (“[T]he doctrine is one of political questions, not one of political cases.” (internal quotation marks omitted)).14 Our di ss en t i ng

co l l ea gu e a rgue s t

ha t by ad dr es si ng t he qu es t i on of

j us t i ci ab i l i t y i n l

i gh t of t he Su pr eme Court’s pronouncements regarding the appropri ate scope of judici al deference to the Executive i n the conduct of foreign relat ions, we “confl at[e] ” two dis tin ct st rands of law, thereb y “set [ting] a dange rous pre cedent. ” Dissen t, at [42]. Rather 22 In purs uing a “case- by-case” in quiry under the polit ical question doctri

ne, we have consistently employed one or more of the “six independent tests” identified by the Supreme Court in Baker v. Carr

: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and mana geable standards for resolving it; or [3] the imp ossibil

ity of decid

ing without

an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unus ual need for

unquestioning adherence to a poli tical decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Vieth v. Jubelirer

, 541 U.S. 267 , 277-78 (2 004) (quoting Baker , 369 U.S. at 2 17); see also Hwang Geum Joo v. Japan , 413 F.3d 45 , 48 (D.C. Cir . 2005) (applying the s ix Baker v. Carr tests be fore dis missing a FSIA claim o n groundsof nonjus ticiabilit y under the

political question do ctrine); Kadic , 70 F.3d at 249 (relyin

g on the six Baker v. Carr

tests in a foreign r

elations co ntext); Can v. United States , 14 F.3d 160, 163 (2d Cir. 1994) (same). Our inquiry into the proper deference to be accorded to the United States Statement of Interest is guided by our application of the political question doctrine because this doctrine “reflect[ s] the jud iciary’s co ncerns regarding s eparation o f powers, ” Kadic , 70 F.3d at 2 49. 14 Ourthan analyzing the broa d language of Bak er in a va cuum, however, it is a ppropri ate that our p oli tic al quest ion anal ysis be infor med by the well -est abli shed pri ncipl es concer ning t he need for def

erence t o the Execut

ive Branch—one of the “coordin ate br anches of government” t

hat i s “due res pect” wi thi n the Bak er framework.

15 Nothing in this opinion should be und erstood to indicate that the D istrict Court may no t dismiss plaintiffs’ clai ms agains t part

ies t hat ar e not

forei gn sover eigns or in str umentali tie s of f oreig n soverei gns ( and thus a re not appell ants here) under

the “pol iti cal ques tio n” doctri

ne.

16 We note that , i n Ung

ar o- Be na ge s v . Dre sd ne r B an k AG , 379 F.3d 122 7 (11 th C ir. 200 4), the Elev enth Circ uit recentl y decli ned to di smiss a Holocaust -rel ated cl aim agai nst German banks on the ba sis of the “poli tic al quest ion” do ctrin e, inste ad d ism issing th e cla im o n the grou nd s of in tern ation al co m ity. In so hold ing, the cou rt relie d pr incip ally on a st atement i n the Agreement Concerning

the Foundat

ion “Remembrance, Res ponsi bil ity and the Fut ure,” July 17, 2000 , U.S.-F .R.G ., Anne x B, ¶ 7, 39 I.L.M . 1298, 1 304, tha t “[t]he U nited S tates do es not su ggest tha t its policy intere sts concerni ng the Foundat ion i n themsel

ves provi de an independent legal basi s for dismis sal” of the clai ms covered by t he agreement. From this languag e, the Ung aro-Bena ges cour t conc lude d that the Exe cutive has “pu rpose ly chose n not to settle” the c laims a nd the refore signaled that pur suit of the c laims in U nited S tates cou rts wou ld not “in terfere with American forei

gn rel ati ons. ” 379 F.3d at 1235-37. Although the pre cise languag e that the El eventh Ci rcuit

found si gnif icant in Ung aro-Bena

ges als o appears in the executi ve agreements between the United St ates and Austri a, we res pectful ly di sagree with t

he Elevent

h Circui t’ s vie w that su ch a pro vision ren de rs the “po litical q ues tion” doc trine inap plica ble. It is tru e tha t the U nited State s car efu lly declined to “suggest ” in i ts a gre ement s wit h Austr ia that it s st atements of in teres t would nece ssar ily lead t o the di smissal of all relev ant l

iti gati on. Given the complexity of t he is sues at

stake , this was an underst andable an d prudent cl arif icat ion by the Unit ed Stat es’ diplo matic re present ati ves i n a communicati on with a forei gn Stat e regarding the po ssi ble act ions of the in depe nden t Americ an j udi ci ary under th en- pre vaili ng do mest ic Unit ed St at es l aw. But in decl

ini ng to guarantee to A ustria that courts would defer t o it s st atements of in teres t, the Unit ed Stat es surel y did not express int ent t o waive the right to such deference. The United States never i ndicated that i ts forei

gn polic y inte rests s hou ld no t, as a m atter of law , lead to the dism issal of a claim cov ere d by its exe cutiv e ag ree m ents . Fur therm ore, the U nited S tates nev er stated that it wou ld not seek and, in its po st- Altmann submiss ion does indeed see k, dism issal on the b asis of its fore ign p olicy intere sts. See United St ates Supplemental Letter , at

1. That the Unit ed Stat es 23 resolut ion of thi s case under the polit ical question doctri

ne is great ly reinfor ced by the his toric deference d

ue to the Executive in th e conduct of the forei gn relation s of the Un

ited States , as highlighted by the Supreme Court’s recent guidance in Altmann and Sosa

. See also Verlinden B.V. v. Central Bank

of Niger ia , 461 U.S. 480, 486 (1983) (recognizing the historic deference accorded to “decisions of the political branches—in particular, those of the Executive Branch—on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities”). 15 We further note that o ur decisio ns and tho se of oth er courts consider ing the application of t

he political question doctrine have proper

ly relied on

the views of

the United S tates Gov

ernment, as

express ed in its statements of interest. 16 See, e.g. , Kadic , 70 F.3d at 2 50; see also Hwang Geum Joo , 413 F.3d at 48did no t r epres ent to Aus tri a th at i ts st atement s of int eres t woul d be acc orded def erenc e in every

rel evant judi cia l f orum does not prec lude us from according d eference to the v iews of the U nited States in this case

.

Our dissent

ing col league a ssert s tha t by di smissi ng thi s li tig ati on, we wil l, in ef fect,grant

by judi cial

fiat that whic h Au stria did n ot succ eed in obtainin g du ring the c ourse of its nego tiations with th e U nited S tates G over nm ent. In the vi ew of the di ssent , this a ssert ed undue benefi t to Austri a would do “more tha n what was an tic ipat ed in the agreement” a nd thereby “undermine[ ] the pol

iti cal bal ance cle arly str uck” by the Clint on Administrati on Dissen t, at [37]. We d isagree for several reasons. First, the mere fact that, in the view of the dissent, the United States “ coul d have gua ran teed dism issal of dom estic c laim s aga inst A ustria ,” D issen t, at [36 ], has n o be aring on w heth er, at th is junc ture , it would be disruptive to U nited States foreign policy interests for this lit igation to proceed; indee d, the United S tates’ in te rna ti onal

commit ment to see k di smi ss al “on any val id l ega l groun d” i s en ti rel y con si st ent

wit h i ts vi ew, th en a nd no w, that th is litigatio n is ha rm ful to U.S . fore ign p olicy intere sts. Se con d, ev en if, argu endo , at the t ime of ent ering negoti ati ons wit

h Austri a, t

he United St ates Department of State was n ot concer ned about t he preci se ramif

icat ions of thi s li tig ati on, i nterven ing devel opments i n forei gn poli cy would provi de an addit ional basi s upon which the Execut ive Branch could no w seek dis missal of thi s li tig ati on. Thi rd, r epresent ati ons by the United St ates in the course o f diplo matic nego tia tio ns wit h the Austrian government were made agai nst t he backdrop of

a legal l andscape di fferen t from that w hich now pre vails; to sugg est tha t the U nited State s is som eho w p rec lud ed from seek ing d ism issal of this li tig ati on because of

it s negot iat ing pos iti on with the Aust rians would effe cti vely s ubordinat e the pr

inci ples animati ng the poli tic al quest

ion doctrine t o the undef ined need t o preser

ve the pr esumed “poli tic al bal ance” st ruck by a pr

ior pres iden ti al a dmini st rat

ion in o ur coun try ’s negot iat ion s wi th a for eign st ate. (I t i s wort h not ing tha t, wherea s our diss enti ng coll eague recons truct s the United St ates’ negoti ati ng st rateg

y from a publ

ished memoir of

a high -ranking Cli nto n admi ni st rat

io n of fi ci al , o ur f

in din gs wit

h re spe ct to th e fo rei

gn p ol ic y i nte res ts of t

he Uni te d St at es a re dr awn str ict ly fr om the formal li tig ati on posi tio n asser ted inthi s Court by the Execut ive Branch , i ncludin g a sworn decl arati on, submitt ed in supp ort of dismis sal of thes e claims “in the enduring and high int erest

of the United St ates to vi ndicat e [the G SF ],” E izen stat D ecla ratio n ¶ 3 8, by the v ery offic ial on wh ose in form al rec ollec tion o ur d issen ting c ollea gue relies .)

17 In appl ying t his f ourth Bak er test , court s have been parti cularl y att enti ve to t he views o f the Uni ted Sta tes G ove rnm ent a bou t the c onse qu enc es of pro cee ding with litigation

. See K adic , 70 F. 3d at 250 ( stat ing t hat the views o f the Executiv e are ent

itl ed to “re spectf

ul cons iderat

ion” in applyi

ng the f ourth t hrough si

xth Bak er te st s, al tho ugh t

hes e vi ews “w ould not n ece ssarily pre clud e ad jud icatio n”); see als o Alperin v. Vatican Bank , 410 F. 3d 532, 556- 57 (9th Cir. 2005) (noting “th e Ex ecu tive Bra nch’s co ntinuing silence o n the H olocau st Surv ivors’ claim s,” but stating th at “[h]ad the State Department expr essed a vi ew, tha t fact would cert ainl

y weigh i n evaluat

ing t his f ourth Bak er form ulation” ). Our decisi on here t o rely princ ipal

ly on t he fourt h Bak er test shou ld not b e take n to im ply that w e agre e with our dissenting colleague ’s conclusion that “Wh iteman’s com plaint clearly would surv ive the other Bak er tests .” See Dissent , at

[31]. Moreover, t

he mere fact

that the Supre me Court has i ndicat ed recentl y (and qui te t entat

ivel y) t hat the Bak er test s “are probabl

y li sted in descendin g order of both i mportance and cer tai nty” pr ovides n o indi cati on at al l t hat the l att er tes ts ha

ve somehow been repeal ed or are no longer proper grounds for

appli cati on of t he poli tic al quest ion do ctrin e. See V ieth v. Jubelirer , 541 U .S. 267, 27 8 (200 4); see also A lperin , 410 F. 3d at 546 ( focusi ng on fi rst two Bak er

tests “bec ause th ey are the m ost significan t in the face of the sp ecific alleg ations of th e Co mp laint”). 24 (deferring to the foreign policy views of the Executive Branch, as expressed “in a thorough and persuasive Statement of Interest”). We need not exam

ine each of th e six Baker tests in turn, for it is clear that this case meets the fourth test; in other words, “a court’s undertaking independent resolution” of this claim is impos sible “without expressing lack of the respect due” the Executive Branch. 17 To begin wit h, the foreign25

policy interests asserted by the Executive with respect to plaintiffs’ particular claims are “due” the utmost “respect” because they are offered to us pursuant to executive agreements concluded in the exercise of

the President’s co nstitut

ional autho rity to con

duct fore ign affair s. As set

forth abo ve, see Background III(a) , ante , fifty years of international negotiations have culminated in the signing of the GSF Agreem ent, which is

accompanied by an exchange of diplomatic

notes tha t constit utes an executive agr

eement betwe en the Gover nment of t

he United St

ates and th e Austrian

Federal Governmen

t. See United Stat

es Statemen

t of Interest, at 6n.4. The P resident’s author ity to set tle claims thr ough such executive agreements has long been re cognized by co urts, see, e.g. , Garamendi , 539 U.S. at 415 (“[ T]he Preside nt has auth ority to ma ke ‘exe cutive a greement s’ with othe r countrie s, requirin g no ratif ication by t

he Senate or

approval by Co ngress,

this power

having been ex ercised since the early ye ars of the R epublic .”), and a cquiesce d to by Con gress, see Dames & M oore v. Regan , 453 U.S. 654,

680-82 (19 81)—part

icularly wher

e, as here, “ the means ch osen by the Presiden t . . . provided an

alternativ e forum, . . . which is c apable of pr oviding mean

ingful rel ief,” id . at 686-87. The United States Gov ernment re presents to u s in this case that the GS F does not merely “provid[e] meaningful

relief,” id . at 687, but

indeed “pro

vides the b est mechani sm for r esolving cl

aims such as plaintiff s’.” Unite d States Su

pplemental L

etter, at 8

. We further conclude that “a court’s undertaking independent resolution” of plaintiffs’ claims would “express[ ] [a] lack of . . . r espect,” Baker

, 369 U.S. at 217, for the foreign policy interests of the United S tates as ex

pressed in the GSF A

greement and elaborated

upon in the

United Stat

es Statement of Interest and Supplemental Letter. This is the “final case” holding up the implementa

tion of th e GSF. Unit

ed States S upplementa

l Letter, at 6. In th e almost f

ive years since its initi ation, thi s litigation has not moved beyond

the thres hold phase

. See Background I-II, ante

. Moreover, as the Uni

ted StatesStatement o f Intere st under scores, “plaintiff s in thiscase face26

numerouspotential legal hurdles ” in the fut ure, includ

ing “justiciability, in

ternational comity, statutes of limitation, jurisdictional issues, forum non conveniens, as well as difficulties of proof inherent i n these clai

ms which or

iginated mo re than 50 yea

rs ago and t

he variouspotential p ractical and legal obs tacles to certificat ion of a clas s of heir s.” United States St atement of

Interes t, at 22. Without commenting on the legal significance of these hurdles, we cannot disagree with the Governmen

t’s ass ertion th at “[r]ecov

ery in thislitigation

is . . . by no

means ass ured.” Id

. In the meantime, the continued pendency of this case—and the consequent delay in the implementation of the GSF—“impedes the success of this important foreign policy initiative” and “threatens the forei gn policy int

erests o f the Unit

ed States, ” United Sta

tes Supplemental Let

ter, at 6, most obv iously th e Governmen

t’s “impo rtant pol

icy objective

. . . to bri ng some meas ure of jus tice to Holocaus t surviv

ors and ot her victim s of the N azi era, who ar e elderly and a

re dying at an accelerated r

ate, in their lifetimes ,” United St ates Statem ent of Int

erest, at 15 (emphasis added). We are also par

ticularly m

indful of the United S tates’ re

presentat ion that th e implement

ation of t he GSF Agreement wo uld advance th e United Stat es’ forei gn relation s with Aus tria, as wel l as with I srael and Western , Central, and Eastern Eu ropean nations. See id

. at 17-19; see also

Background III(c) , ante

.These foreign policy interests—which, we are informed, have animated the Government’s “halfcentury ef fort” cul minating in

the signin

g of two rec ent executiv

e agreements , United St

ates Statemen t of Interest, at 19—are precisel y ones tha t “defy ju dicial a pplicat ion,” “i nvolve th e exerci se of a discretion demon strably co mmitted t o the executi

ve,” and “uniq

uely demand single-voice d

statement of the Gov

ernment’s views,” Baker

, 369 U.S. at 2 11. In sho rt, they co unsel st rongly in favor of d eference to

the Executiv

e. We therefore hold that plaintiffs’ claims against Austria and its instrumentalities must be dismiss ed as nonju sticiable u nder the political ques tion doctr ine. In so holding, we d efer to a Un ited18 An “alternative” ho lding urged b y the Un ited States is that subject-matter jurisdiction to consider plaintiffs’

claim s do es no t lie un de r the FS IA. See Un ited S tates S upp lem enta l Le tter, at 1 ; see also id. at 8-1 5. Alth oug h this argu m ent is b oth c om plex and imp orta nt, it ne ed not b e the first in o ur o rde r of c onsid era tion. W e ha ve p rev ious ly he ld that a federal court may cons ider “t

hreshol d” non-merit s grounds for di smissi ng a cl aim—including,for exa mple, deferenc e to the foreign affairs powe rs of the Execu tive pursuant to the “political question” doc trine— before de term ining wh ethe r it has sub ject-m atter jurisd iction to co nsid er th at cla im. See Ca n v. United S tates , 14 F .3d 1 60, 1 62 n .1 (2d C ir. 1994). M ore rece ntly, th e D istrict o f Co lum bia C ircu it held that it “n eed not re solve the q ues tion o f the d istrict c our t’s subject -matter

juri sdict ion under 2 8 U.S.C. § 1330—that i s, whet her Japan is e nti tle d to sove reignimmunity under t he FSIA— before considering whether t he complaint presents a nonjustici able poli tical question.” Hwang Geum Joo v. J apan , 413 F.3d 45, 47-48 (D .C. Cir. 2005) (emp hasizing that “a dismissal under the political question doctrine” is not “an adjudica tio n on the meri ts”) (i nterna l ci tat ions omitte d). In Hw ang G eum Joo

— which involve d a suit for dam ages against Japan al legi ng atr ocit

ies c ommitted duri ng World War II—the Court of Appeals appli ed the si x tes ts s et for th i n Baker v. Carr , 369 U .S. 186 (19 62), as w e do her e, an d co nclu de d tha t “[t]h e E xec utive ’s jud gm ent th at ad jud icatio n by a do m estic court wo uld be inimica l to the foreign policy interests of the United States is com pelling and rend ers this case nonjustici able under the polit ical questi on doctrine.” Id . at 52 ; see also id . at 53 (hold ing th at co ntra ven ing th e E xec utive ’s stated fore ign p olicy intere sts “w ould be im pru de nt to a deg ree bey ond [the c our t’s] po we r”); cf

. Tenet v. D oe , 125 S. C t. 1230, 1235 n.4 (

2005) ( consi dering,

before es tabl

ishi ng subj ect-matt er jur

isdi cti on, t

he appli cati on of t he Totten rule, wh ich re qu ires d ism issal of case s that d epe nd for th eir su cce ss on the e xisten ce o f plain tiffs’ sec ret e spion age relatio nship with the G ove rnm ent); Kowa lski v. Tesmer, 125 S. Ct. 564, 567 (200 4) (assuming A rticle III s tanding in order to “ad dress the al ternat

ive threshol d questi on whether” att orneys ha d thir d-part y sta nding t o asser t th e rig hts of thei r current

and futu re clie nts); Ruh rgas AG v. Mara thon Oil C o. , 526 U.S. 574, 578 (1999) (hol ding, in the context of case s removed from stat e to fe deral co urt, that “ther e is no unyiel ding j uris dicti onal hi erarchy” that federal courts must fol

low in resol

ving cer tain th resh old n on-m erits q ues tions); Spargo v. N.Y. State Com m’n on Judicial Conduct , 351 F. 3d 65, 74 (

2d Cir. 2003) (hol ding that fe deral co urts need not f oll ow “a str

ict ‘se quencing of

juri sdict ional iss ues,’ as i t does no t vi olat e separa tio n of pow ers princ iples to dism iss an action on a no n-m erits grou nd b efore finding su bject-m atter jurisd iction”). Acc ordin gly, while w e app ly the po litical question doc trine to the facts of this c ase, we expre ss no op inion as to whether p laintiffs could, in the absence of the United S tates’ expressed foreign policy interests, bring their claims against Austr ia,a for eign sov erei

gn, purs uant

to a ny exc epti ons e numerat ed in the FSIA, 28 U.S. C. §§ 1605- 1607. Alt hough o ur dis sen ti ng c ol le ague sug ges ts in pas si ng t

hat a f ore ig n go ver nment ’s exp rop ri atio n of pro per ty bel ongi ng t o i ts own natio nals (a s opp osed to alie ns) vio lates “ univ ersa lly rec ogn ized nor m s of in tern ation al law ,” D issen t, at [32 ], this pro positio n is no t free of d oub t; inde ed , it is, at a m inim um , a com plex and con trov ersia l que stion. Cf. Am erada H ess Sh ipping Corp . v. Ar

gentine R epub lic , 830 F. 2d 421, 429 ( 2d Cir. 1987) (

Kearse, J.,diss enti ng) (

noti ng the pr oblem of allow ing ju risdic tion to “eb b an d flo w w ith the viciss itud es of ‘evo lving stand ard s of in tern ation al law ’”), rev’d, 48 8 U.S. 428 (1 989). 27 States stat ement of fo reign pol icy inte rests in this particular case , which is the one remaining litigation obstacle to the implementation of the GSF Agreement. 18 We conclude th at we cannot “u ndertak[e] independent

resolut ion withou

t express ing lack of t

he respect due” the Execu

tive Bran ch, id

. at 217, because (1) the Executive Branch has exercised its authority to enter into executive agreements respectin g the resolution of

the claims i

n questio n; (2) the U nited Stat es Govern

ment (a) has established through an executive agreement an alternative international forum for considering the19 O ur d issen ting c ollea gue wa rns th at aff ord ing d efe ren ce to the E xec utive in the circu m stanc es pr esen ted will

“undermine[ ] the FSIA by al lowing the Execut

ive t o determine the fa te of l iti gati on agai nst f

oreig n soverei gns si mply by argui ng t hat dis miss al i s i n the Execut ive’ s fo rei gn pol

icy int eres ts .” Diss ent,

at [ 39]. These fear s ar e over st ated, however, b ecause we do not hold that the Executi

ve Branch may, in all circumst ances, precl ude courts from asse ssi ng whether a f

oreig n soverei gn may be sued in U.S. cour ts pur suant t o one or more of the enumerat ed excepti ons of t he FSIA ; rather, we simply hold that, in the circum stances presented , deference to the E xecutive is approp riate. Moreove r, an alternat

ive, cat egorical approach that would allow federal dis trict courts to adjudicat e all questi ons of sovereign imm unity rega rdle ss of th e for eign polic y co nsid era tions r aised by th e E xec utive wo uld , in ou r view , mo re p rofo und ly disrupt the constitutional balance of pow ers between the branche s. 28 claims in question, and (b) has indicated to this Court that, as a matter of foreign policy, the alternative forum is superior to litigation; and (3) the United States foreign policy advanced by the executive agreement is substantially undermined by the continuing pendency of this case. Due to the “case-s pecific” nat

ure of our “deference t

o the polit ical branches ,” Sosa , 124 S. Ct. at 2766 n.21, we need not determine whether any one of these factors is necessary or sufficient for dismissal, and we merely conclude that the dismissal of a claim against a foreign sovereign is appropriate in the circumst ances pres ented to ushere. 19 CONCLUSION For the r easons s tated above, (1) we vacate the di scovery or der of the Distric t Court in

No. 02-936 1, and enter judgment dismissing p laintiffs’ claims a gainst Au stria and i ts instrument alities; (2) we dismis s Austr

ia’s petit ion for a wr

it of manda

mus seeki ng to compel

the Distr ict Court to rule on the pending motion to dismiss, No. 02-3087, as moot in light of our disposition of No. 02-9361; and (3) we remand the cause to the District Court for consideration of claims against any remainin g defenda nts. In remanding for further proceedings with respect to any remaining defendants, we are mindful that the implementation of the GSF—and the advancement of the foreign policies of the29

United St ates embo died in th e GSF Agre ement—ma y depend upon the di smissal of cl aims aga inst such defendants. Because these claims are not, at the present time, on appeal before us, we are without ju risdiction to consider them and accordingl y expressno view as to

whether any legal grounds exist for

their dis missal. In addition, we note the United States policy of bringing “some measure of justice” to Holocaust victims during their lifetimes, United States Statement of Interest, at 15, and the urgent request o f the American Council fo r Equal Compensation o f Nazi Victim s from Au stria th at this Court “take affirmative action to ensure that compensation is paid to Holocaust survivors during their lifetimes,” Br. of Amicus Curiae Am. Council for Equal Compensation of Nazi Victims from Austria, at 9. In ligh

t of thes e extraord

inary circu

mstances , we direct t

he Distr ict Court t

o resolve, within sixty days after the mandate issues in this case, any motions by any party or by the Governmen t, filed w ithin twe nty-one da ys after the mandate issues in thi s case, tha t seeks to di smiss on any ground (includin

g, inter alia , nonjust iciability, see

note 16 ante

) those t hat must b e dismiss ed in order for the GSF to be implemented. Should the District Court find it difficult or impossible to resolve s uch motion s within t he prescr ibed timef rame, thiscase shall b e transf erred to an other Distric t Judge in t

he Souther

n District of New Yor

k. Having twice considered this case over the course of more than two years, and in the interests of judicial economy and expeditious resolution of these pressing claims, we direct the Clerk of this Co urt to exp edite any appea l from th e Distri ct Court’s further orders o r judgment s in this case and to r

efer any such appeal to t

his panel. See United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994).30

S TRAUB , Circuit Judge , dissent ing: The majority holds today that claims against Austria for property taken by the Nazi regime in the lead-up to the Holocaust must be dismissed as nonjusticiable under the political question doctrine s imply becaus e the United

States, app earing as an

amicus curiae in this case, has filed a

statement of intere st urgin

g dismis sal to faci

litate Aus tria’s resolutio n of claimsthrough a g eneral settlement fund (GSF) created in January 2001. This holding is an unwarranted and troubling expansion of the nonjusticiability doctrine, which should only apply where a court, in exercising jurisdiction, would truly be exceeding its authority or contradicting foreign policy decisions by the Executive. I unders tand the maj ority’s c oncern for the Executiv

e’s state d foreign p olicy interests in providing justice to Holocaust

survivor s and maint

aining good r

elations wi

th Austr ia and other interest ed countries. I agree

with the maj ority, mo reover, t hat we ought

to bear the se interes ts in mind as we exercise whateve r discretio n the law affords us. Ho wever, th e law is c lear that a case does not “

lie[] beyond

judicial cogn

izance” simply because it

“touches f

oreign rel ations.” Baker v. Carr , 369 U.S. 186 , 211 (1962) . Indeed, t his is why discretionary doctr

ines such as executive deference and internat

ional comit

y have arisen , doctrine s that onl y apply after

threshold jurisdictional issues have been decided and that require an independent judicial a ssessment of the weight of t

he interes ts at st

ake and of th e adequacy of al ternative r elief available to the plai

ntiffs

. In dismi ssing th

is case at t he outset under the m andatory political ques tion doctr ine based solely on an executive statement of interest, the majority effectively cedes jurisdiction to the Executive to

determine , on an ad hoc b asis, when cases can and

cannot be br

ought agains t a foreign sovereign. Because I find this approach contrary not only to constitutional precedent but also to31

statuto ry law on for

eign sovereign immuni

ty, I res pectfully d

issent. I. Justiciability In Baker v. Carr

, a challenge to Tennesee’s apportionment scheme, the Supreme Court rejected th e state’sargument t hat the iss ue present

ed was “nonj usticiable” ( i.e. , not appropriately resolved through adjudication). 369 U.S. 186 (1962). In so doing, the Court spent much of its opinion s ystematizi

ng the som ewhat-dis ordered p rior case law on just

iciability, a

nd identif ied six existing b ases for

dismiss ing a case as n onjustic

iable: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable a nd manageable standards for res olving it; o r [3] the i mpossib ility of dec

iding witho ut an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's u ndertakin g independen

t resolu tion witho ut expres sing lack of the respe ct due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made ; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. To wa

rrant dis missal, o ne of thes e formulat ions mus t be “inextr

icable from

the case at bar,” lest the politi cal questio n doctrin e become a “pol itical cases ” doctrine

. Id. Of particular relevance her

e, the Court

also warned

that, altho ugh the conduct of foreign affairs is the province of the politi cal branches , “it is er ror to s uppose th at every case or controversy whi ch touchesforeign relationslies beyond

judicial cogn

izance

. ” Id. at 211. As the majority relies exclusively on the fourth Baker test, I wi ll focus o n that tes t as well. However, asan initial ma

tter, I n ote that Whi

teman’s co mplaint clear

ly would su

rvive the o ther Baker tests. With respect to the first Baker test, whil e foreign p olicy is com

mitted in t

he first instance to the Execut

ive, tort claims agains t foreign

countries and individ

uals under the law of nat

ions, as well as issues of sovereign immunity, are constitutionally committed to “none other than our own—the Ju

diciary.” Kadic v. K

aradzic , 70 F.3d 232, 249 (2d Cir. 1995) (internal quotation omitted),32

cert. denied , 518 U.S. 1005 (1996); see also Alperin v. Vatican Bank , 410 F.3d 53 2, 551 (9th Cir. 2005) (“Reparation for stealing, even during wartime, is not a claim that finds textual commitment in the Constitu tion.”), petition for cert. filed

, 74 U.S.L.W. 3146 (Sept. 7, 2005) (No. 05-326). Indeed, the Foreign So

vereign Im

munity Act (

“FSIA”), w

hich, as explained below,

was intende d to de-politicize immunity d eterminat

ions, conf irms thi s consti

tutional al location. As for the second and third Baker tests, Wh iteman’s p roperty cl

aims are manageable thro ugh traditio nal adjudicat

ion. See Alper

in , 410 F.3d at 551 (“[T]he Property Claims ultimately boil down to whether th e Vatican Bank is wrongf ully holdin

g assets . Deciding t

his sor t of contr oversy isexactly what court s do.”); id. at 555 (finding that ad judication of whether

propert y was wrongf

ully taken during WWII

and valuatio n of prop erty did no t require any non-jud

icial policy d eterminat

ions). Likewise, the universally recognized norms of international law invoked by Whitema n—purely for purposes of establishing jurisdiction under the FSIA—“provide judicially . . . manageable standards for adjud icating sui ts” and “ob

viate[] any n eed to make policy decisio ns of the kind norm ally reserved for nonju dicial discr

etion.” Kadic

, 70 F.3d at 2 49. The four th and sixt

h tests a re basicall y cotermin ous with t

he fifth, in that the

y involve cas es where an exercise of jurisdiction, although not per se outside t he judiciary

’s author ity, would somehow co ntradict ac tions tak en by the pol

itical bran ches; I wil

l therefo re discus s them together. Given the sparsity of analysis of these factors in Baker and subsequent cases, one clue to what the Baker Court had in

mind is th e sole case cited by Baker for the proposition that “many [questions of foreign r elations] uniquely dem and single- voiced stat

ement of t

he Governm ent’s view, ” Baker , 369 U.S. at 211: Doe v. Braden , 57 U.S. (16How.) 635, 6 57 (1853). Braden was an action

for ejectm ent, in which

the plainti ff claimed t

itle to land

he acquired from the Duke of Alagon, who in turn had been granted this land by the King of Spain. The King of Spain, however, had annulled this grant as part of a treaty with the United States. The plaintiff33

argued that the King had no authority under Spanish law to annul the grant, to which the Court responded that this was a political question which the political branches had already answered by signing and

ratifying the treaty

. See Braden , 57 U.S. (16How.) at 657

. If Braden is the type of case the Baker C ourt had in

mind–and agai

n it is th e sole case ci

ted–then t he latter t ests oug ht be narrowly

constru ed absent f

urther gu idance from

the Suprem e Court. It

is hardly s urprising that th e Braden Court woul

d find it i nappropr iate to decid e whether a t

reaty between

the United S tates and S pain was invalid on the ground that, under Spanish law, the King lacked the authority to make one of the stipulations in the treaty; but this hardly establishes a broad principle for other cases touching on executive fo reign polic

y. In fact, the Supreme Court has expressed doubt as to the importance of these last three tests (as bases for mandatory dismiss al). Vieth v. Jubelirer , 541 U.S. 267 , 278 (2004) (noting t hat the Baker factors “are probably listed i n descendin

g order of both impo rtance and cer

tainty”); see also

Alperin , 410 F.3d a t 545 (noti ng, in Sup reme Cour t and lowe r court opin ions, a “d isproportio nate emp hasis” on the first three factors). Moreover, in Kadic , we explained t

hat, in cont

rast to t he first three factors, the “fourth through sixth Baker factors appear to be relevant only if judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contr

adiction wou

ld seriou sly inter fere with i mportant government

al interes ts.” Kadic

, 70 F.3d at 249. Kadic

’s narrow reading of the latter Baker tests accords with one of the few Supreme Court opinionsto take up t

he Baker factors : Japan Whaling Ass’n v. American Cetacean Society , 478 U.S. 221 (1986). In that case, the Court unanimously declined to dismiss as nonjusticiable a claim that the Secretary of Commerce had violated federal statutory law by refusing to certify that Japan’s whaling20 Four Ju stices dissented on the m erits but, in finding that relief was wa rranted, implicitly agreed that the case

was jus tic iabl e.

21 Of course, Congress had spoken in Japa n W haling Ass’n , an es senti al fa ctor i n that case. But Congress has spoken her e to, in i ts deci sion, in enac tin g the FSI A, to depol iti cize f oreig n soverei gn immunity deci sions and subj ect them to ne utra l legal p rinc ipals. See infra at [43-44].

22 Ind eed , the m ajority app ear s to co nce de that th e A gree m ent c ann ot be a ba sis for dism issal. See ante at 23- 24 n.16 ( reasoni ng that , even t

hough the Uni ted Sta tes r efused t o commit in t he Agreement to argui ng a le gal gro und for dismis sal,

“int erveni ng development s in foreign poli cy would provi de an addit ional basi s upon which the Execut ive Bra nch cou ld no w se ek d ism issal of this ca se”). T hus , des pite th e m ajority ’s rep eate d re fere nce to the Ag ree m ent, it is clea r that it is the E xec utive ’s State m ent o f Inte rest th at–in an u npr ece de nted fash ion– m otiva tes the ma jority ’s non justic iability hold ing. 34 practices were undermining the effectiveness of an international fishery conservation program. 20 (Such ce rtificati on would h ave trigg ered a sta tutory man date tha t the Secr etary of S tate impo se economic sa

nctions o n Japan.) T

he Court reached thisconclusio n despite t he fact that

the United States, by executi ve agree ment with Japan, ha d promised u nder certa in condit ions not to i mpose sanctions and despite the defendants’ argument that the sixth Baker factor would be violated by any decision “to command the Secretary of Commerce, an Executive Branch official , to dishonor and repudiate an

international agreemen

t.” Id. at 229. While r

ecognizing t

he “signif icant polit ical overtones” in the case, the Court found that to dismiss the case as nonjusticiable would be to “shirk” t he judiciary

’s respo nsibilit

y to interp ret and appl

y the law. Id. at 230. 21 Guided by th

is case law, I

find that the proper

ty claims pr

esented by t

his case are clearly justiciable, notwithstanding the 2001 Agreement Between the Austrian Federal Government and the Governmen

t of the Un

ited States of America Co ncerning t

he Austrian Fund “Recon ciliation, P eace and Cooperat

ion” (“Agre ement”). As

the majori

ty acknowledg

es, the Agreement made clear that the United S tates was n ot settl ing anyone’sclaims but

was merely co mmitting

to advocate d

ismiss al of actions brought within the United States, with the caveat that these actions would be decided by an “independ ent American judiciary” u

nder neutr

al legal prin ciples. Ante

at [23 n.16]. 22 Stuart E. Eizensta t, Speci al Repre sentative of the Presid ent and th e Secret ary of Sta te on Holo caust issue s,23 Ironically, the majority’s decision today cuts against the A gree m ent’s a ffirm anc e of th e jud iciary ’s

inde pen de nce .

24 This ag reem ent is officially titled the “A greem ent C once rning the Fou nda tion ‘Rem em branc e, Resp onsibility and the F utu re’” a nd is rep rinte d at 3 9 I.L .M. 1 298 (200 0). 35 confirmed this fact in his Jan uary 19, 2001 , Declaratio n in this c ase, which no ted that “t he United States has not extinguished the claims of its nationals or anyone else.” The language throughout the Agreement d

id likewise. For example, the Agreem ent provid ed that “[t ]he United S tates will recommend

dismiss al on any valid

legal gro und which, under

the United S tates sys tem of jur ispruden ce, will be for the United S tates cour

ts to det ermine.” 23 Annex B, Oct . 24, 2000, 40 I.L.M. 5 23, 528 (2001) (emphasis added). The Executive specifically warned Austria that “ [t]he United States does not suggest that its pol icy inter ests concerning th e Fund in thems elves pr ovide an inde

pendent leg al basis for dismissal , but will reinf orce the po

int that U. S. policy int

erests f avor dism issal on an

y valid legal gr

ound.” Id. at 529 (emphasis added). Based on p recisely t

his language

in the Unit

ed State’sexecutive agr

eement with

Germany, 24 the Court of Appeals for the Eleventh Circuit recently rejected the defendants’ nonjusticiability argument. Ungaro-Benages v. Dresdner Bank AG , 379 F.3d 1227 (11th Cir. 2004). There, the Eleventh Circuit stated: [T]he plai n text of t he Foundat

ion Agreemen

t anticipat es that fe deral cour

ts will consider claims agains t German co rporatio ns. . . . [T ]he agreemen

t itself providesthat it does not provide an independent legal basis for dismissal. Thus, the executive opted not to settle these claims or to transfer the claims to the Foundation, although it had the power to do so. As a resul t, federal court cons

ideration of the pre sent case d oes not reflect a lack of respect for the executive nor does it interfere with American foreign relations. The United St ates is in fu ll compli ance wi th the Found ation Ag reement so long as it f iles a statement of interest to courts urging respect for the Foundation as the exclusive forum to resolve these claims. . . . A statement of national interest alone, however, does not take the present liti

gation out side of th e competence o f the judic iary.

Id. at 1235-36 (citation and footnote omitted). The Eleventh Circuit thus concluded that a25 I note that, c ontr ary to the ma jority ’s imp licatio n, see ante at [24 n.16 ], I am in no wa y rely ing o n E izen stat’s

book for my unders tandi ng of the Agreement. Rather,the book i s usef ul i n confi rming th at the lang uage of t he Agre em ent m eans w hat it says an d is not sim ply, as the m ajority sur mise s at ante [23 n .16], c are fully vag ue d iplom atic 36 statement of interest does not render a case nonjusticiable but may still be entitled to deference, and the court afforded such defer

ence by absta

ining under

an internat

ional comit

y analysis. See id. at 1236, 1237- 40. The majority disagrees with Ungaro-Benages , stating t hat the Agre ement’s lan

guage simpl

y reflects a “prudent” clarification by “diplomatic representatives” regarding the possible actions by the indepen dent Ameri can judiciar y. Ante at [23 n.1 6]. The ma jority arg ues that the United St ates, simply by d eclining to g

uarantee dis missal to Austria, did not waive any right to argue nonjustic iability . This argum ent, most im portantly , overloo ks the fact that the U nited Sta tes could have guaranteed dismissal of domestic claims against Austria by entering into a settlement agreement or treaty . See Ungaro-Benages , 379 F.3d at

1235 & n.11 (

providing examples of

United Stat

es settlemen ts exting uishing do mestic clai

ms against

foreign go

vernments

); cf. Dames & M

oore v. Regan , 453 U.S. 654, 665 (1981) (quoting language from executive agree ment with Iran explicitly obligating the United S tates “‘to

terminate all [relevant] legal pro ceedings in United Stat

es courts ’”); Hwang Geum Joo v . Japan , 413 F.3d 45, 49-51 (D.C. Cir. 2005) (noting how 1951 Treaty waived clai ms by Allied Powers and their nationals against Japan arising out World War II), petition for cert. filed , No. 05- 543 (Oct. 26, 2005 ). That the Executi ve decli ned to exe rcise this p ower make s its reserva tions a deliberate p olicy choice r

ather than mere “prud ent” cautionary statem ents. In fact, the history of the settlement negotiations confirms that the Executive’s refusal to waive all existing and potential claims agai nst Germany (and, by dint of the parallel language in the two agreements, Austria) was an intentional part of its foreign policy. A s Stuart Eizenstat,

the United States’ ne gotiator o f these agr

eements, r eveals in his

book about

the project

, Germany doggedly sought further assurance of a legal peace and was rebuffed. 25 Stuart E. Ei zenstat, I mperfect J ustice:speec h. No r is there an y incon sistency b etwe en E izenstat’s obs ervatio n in his bo ok tha t the Ad min istration refu sed to

waive vi cti ms’ cl aims–a pol icy deci sion with whi ch Eizens tat apparent

ly di sagreed–and hi s st atement i n thi s case that dism issal w ould be in the E xec utive ’s fore ign p olicy intere sts. 37 Looted Assets, Slave Labor, and the Unfinished Business of World War II 269-78 (2003). In particular, Germany s ought “a def initive com

mitment b y the United

States to support some legal ground fo r the dis missal of future s uits, rat

her than simply stat

ing that dis missal wasin our for eign policy interests,” but the United States “held fast” to its refusal to “take a formal legal position barring U. S. citizensfrom the ir own cour

ts.” Id. at 269. In f

act, German

y was warned t

hat if it attempted to portr ay the agreement as barr

ing all futu

re litigation, the Ju stice Depar tment woul

d make clear it s position “to the co ntrary.” Id. at 270. And Seth Waxman, Solicitor General at the time and the most adamant opponent within the Administration to allowing the agreement to be construed as barring litigation, crafted the “creative formulation” in the executive agreement that the Executive wou

ld file st atements o f interes t favorin g dismis sal “on any val

id legal grou

nd.” Id. at 271. Knowing full well that it had achieved imperfect lega l peace at best, Germany signed the agreement, a

nd the foll

owing year, Au stria si

gned an agreem ent contain ing an identically worded commitmen

t by the Execu

tive to file statements of int erest. In finding this case justiciable, then, we would do no more than what was anticipated in the Agreement, and therefore would show no disrespect for the Executive, nor impermissibly interfere with foreign relations or send any contradictory foreign policy message. To the contrary, the majority ’s interp retation u

nderminesthe politi cal balance clear ly struck by the Execut

ive between assuring Au stria of its sup port for the G SF and refra ining from se ttling vi ctim’s cla ims. I also find it tellin

g that the Ex ecutive hasnot, at any p oint in th is litigat ion, sugges ted to thi s Court that Whiteman’s claims are nonjusticiable. In fact, it has implied the contrary. The majority glossesover thisfact by bro adly reading t he Executive’ s limited

statement

in its Sup plemental L

etter that recent Supreme Court case law “confirms the substantial weight that a court should give to the38

views of the Executive on this nation’s foreign policy in deciding whether to exercise jurisdiction [under th e FSIA].” Ante at [20]. Asthis sen tence makes c

lear, however

, the Executi

ve was invoking—n ot the nonj usticiabi lity doctr ine—but r

ather the d

iscretio nary doctr

ine of execut

ive deference, d

iscusse d below in Par

t II. In fact, the Executive does not even suggest that its interests, standing alone, would support discretionary dismissal. Rather, the Executive states that “it is in the foreign policy interests of the United Stat

es for th is action t o be dismis sed on any val

id legal grou

nd,” and argues that we s hould defer to i ts interests “[t

]o the exten

t that [th ey] are relevant to any legal arguments advanced by the defendants

in seeking d

ismiss al” (emphasis added). This lim iting langua

ge echoes th e carefullyworded promise in t

he Agreement

and appearsthrougho ut the lett er, which els ewhere charac terizes the Executiv

e’s interest as “relevan[t]” and deservin g of an “impo rtant role” and “ser ious weight

” in the judicial

determinat

ion of whet

her to exercise juris diction. Most telli ngly, the Execu

tive appealed to “absten tion doctr ines under

which the Uni

ted State’s foreign policy interes ts are pot entially relevant to a court’s determination whether to exercise jurisdiction,” such as international comity and forum

non conveni ens, rath er than to t he political

question doctrine. The modes ty of the Exe cutive’s r equest (r elative to t

he majorit y’s holdin g) reflect s the legal background

to this cas e. For bet

ter or wor se, Congres s specifically enacted t he FSIA to

uncouple foreign sovereign immunity decisions from ad hoc foreign policy decisions. As the House Report explained: A principle

purpose o f [the FSI

A] is to tr ansfer t he determi

nation of s overeign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and assuring litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process. . . [thereby] confor m[ing] to the practi ce in virtually every ot her country . . . . H.R. Rep. No. 9 4-1487, at 7 (1976) (em

phasis add ed), reprinted i

n 1976 U.S.C.C.A .N. 6604, 66 06; see39

also Verlinden B.V. v. Cent. , 461 U.S. 480 , 488 (1983) (“Congres s passed the [FSIA

] in order to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to ‘assur[e] litigan ts that . . . d ecisions a re made on purely le gal groun ds . . . .’” (quoting H ouse Report))

. The majority’s decision today undermines the FSIA by allowing the Executive to determine the fate of litigation against foreign sovereigns simply by arguing that dismissal is in the Executive’sforeign policy interes ts. In sum, m y underst anding of t

he political

question doctrine f

or cases t ouching on f

oreign relations is as follows: Unless there is a clear constitutional commitment to the political branches or some other factor placing the cas e beyond nor mal judicial c ompetence, a c ase may be non justiciab le only if its resolut ion “would co ntradict p rior for eign policy de cisions t

aken by the political branch”—here, the Execu tive. Kadic

, 70 F.3d at 2 49. In thi s case, the operative f

oreign pol icy decision is the negotiation of the Agreement, which expressly contemplates the judiciary’s authority to hear these cases and in which the Executive expressly declined to require their dismissal. The majority, however, fi

nds that t he Executive’ s Statemen

t of Interest, even

without any

actual contradict ion with a pr

ior fore ign policy dec

ision, issufficient to rend er the case nonjustic iable. While the foreign policy interests asserted in this case might, upon further analysis, be sufficient to warrant dismissal under the discretionary doctrine of international comity, the majority’s expansion of the mandatory poli

tical quest ion doctr ine is uns upported

and troub ling in itspotentiall y wide-reachi

ng implications. II. Executiv

e Deferen ce In an effo rt to sh ore up itsjusticiability analysis, the maj ority finds its holding “great ly reinforced” by the Supreme Court’s recent case law suggesting an executive deference g round for dismiss al in cases i

mplicating o ur forei

gn relation s. Ante at [22-23]. Indeed, an ambiguous association between the (mandatory) political question doctrine and the (discretionary) doctrine of40

executive def

erence perv

ades the maj ority opin

ion, which alt

ernatingly states t hat “deference is “appropr iate,” see id

. at [20-21 & 27 n.18], and “hold[s] that plaintiffs’ claims against Austria and its instrum entalitiesmust be di smisse d as nonjus ticiable und er the poli tical quest ion doctr ine,” see id. at [26]. The majority’s conflation of these two doctrines is contrary to the sparse existing precedent on executive deference as an independent ground for dismissal. In Republic of A ustria v. A ltmann , the main case on which the majority relies for the doctrine of executive deference, the Supreme Court stated in dicta that, “should the State Department choose to express its opinion on the implications of exercising juris diction over particu lar petitioners in c onnection w ith their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” 541 U.S. 677, 702 (2004) (emphasis added). At the same time, the Co urt “express[ed] no opinion o n the quest ion of whet

her such d eference should be granted in cases cov

ered by the F SIA,” id

. (emphasi s added), and disclaime d any holding “that execut

ive intervent ion could or

would tru

mp consid ered applicat

ion of the F SIA’s mor

e neutral pr

inciples,” id. at 702 n.23. Likewise, in a subsequent case, the Supreme Court stated in passing dicta that, with regard to litigation under the Alien Tort Statute against corporations which allegedly participated in the apartheid in South Africa, “there is a strong argument that federal courts should give serious weight to the Executive Branch’s view” that such litigation interferes with the work of the Truth and Reconciliatio n Commission (which f avors “con fession

and absolut

ion” over “v

ictors’ j ustice”). Sosa v. Alvare z-Machain , 542 U.S. 692 , __, 124 S. Ct . 2739, 2766 n .21 (2004) (noting t hat the Cour

t “need not apply” in

that case t

he “ possible limitati on . . . of c ase-speci fic defere nce to the politica l branche s” (emphasis added)). As is clear from the language of Altmann and Sosa , the Supreme Court has indicated t

hat, in26 Ho we ver , Justic e B rey er, join ed by Ju stice S oute r in a c onc urre nce , stated in pa ssing that th e E xec utive cou ld

file a sta tem ent o f inter est co uns eling dism issal on vario us gr oun ds, inc lud ing n onju sticiab ility. Altmann , 541 U.S. at 714 (Breyer, J.,concurri ng). Just

ice Breyer

did not speci fy what wei ght s uch a st atement s hould be acco rded or what o ther circ um stanc es, if an y, wo uld nee d to b e pr esen ted to su ppo rt dism issal.

27 For t his reas on, I must res pect fully di sagr ee wit h the majorit

y’s st atement , wi thout

any ci tat ion beyond Kad ic , that “ our dec isions . . . have pro per ly relie d on . . . [exec utive ] state m ents of inte rest” in de term ining justicia bility, ante at [23]. The m ajority also cites Hwang Geum Joo v. J apan , 41 3 F

. 3d 45 ( D. C. Ci r. 20 05 ) , wh i ch he l d n on j us t i ci ab l e c l ai ms under the Al

ien Tort Stat ute agai

nst J apan by for eign na tio nals from China, Taiwan, South Korea, and the Phi li ppines for 41 some cases , executive s tatementsof intere st might be entitled

to signif icant weight, but it has decline d to specif

y how and when this ru le might a pply. Ce rtainly, nothing i n the lang uage of th ese cases sug gests th at dismis sal would be required in defere nce to ex ecutive statement s—not least because the Altmann and Sosa majoritie s never men tion just iciability. 26 To the cont

rary, Altmann stated: “We do not hold . . . that executive intervention could or would trump considered application of the FSI A’s more n eutral pr

inciples.” Altmann , 541 U.S. at 7 02 n.23 (emp hasis adde d). The major

ity attempt s to tie t

he executive d eference and political question do ctrines t ogether by citing to our decision in Kadic v. K aradzic , 70 F.3d 232

(2d Cir. 199 5), arguin

g that in that case we relied on s tatementsof intere st in apply ing the poli

tical quest ion doctr ine. With re spect, I d

isagree with this characterization. In Kadic , we held justiciable international law claims by vic tims of the Bosnian-Se rb leade r Radova n Karadz ic for atroc ities comm itted in th e Bosnian c ivil war . In so holding, we noted that the United States had filed a statement of interest expressly disclaiming any concern that the case raised a political question. We stated that “[t]hough even an a ssertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessari ly preclude ad

judication , the Gover

nment’s r eply to our

inquiry reinforcesour view th at adjudicatio n may proper

ly proceed.” Id. at 250. As t his language

makes clear, Kadic in no way supports the m ajority’ s position th at courts ma y rely on a n execut ive state ment in fin ding a ca se nonjusticiable, particularly where, as here, the Executive ha s not even asserted that the cas e is nonjusticiable. 27crim es inv olvin g sex ual sla ver y du ring W orld W ar II. A lthou gh th e D .C. C ircu it gav e w eigh t to the Exe cutiv e’s

stat ement of for eign pol icy that cl aims against J apan be res olved through negot iat ion bet ween stat es, it also reli ed on a 195 1 T rea ty be twe en J apa n an d the Allie d P ow ers “ exp ressly wa iv[ing ]” the claim s of a ll Allied citizen s and fou nd that it wo uld be a bsu rd if f ore ign n ation als ha d m ore rights than Am eric an c itizen s in this r ega rd. See id. at 49 -50 . Mo reo ver , in Hua ng Geum Joo , unl

ike i n thi s case,

the Execut

ive’ s st atement of

int erest argued th at the case was nonjus tic iabl e and provi ded rea sons base d on t he first thr ough t

hir d Bak er tests fo r find ing th e ca se no njus ticiab le. See id. at 51

. 28 Because I f

ind th e iss ues pres ented i n thi s case clearly j usti ciabl e, I would remand for a determinat ion of wh ethe r circ um stanc es pe rm it and wa rran t disc retio nar y de fere nce to the exe cutiv e for eign polic y inte rests s tated her e. In so doi ng, I would rej ect Aust ria’ s othe r major t hreshhol d object

ion t o juri sdict

ion, which t he majori ty does n ot rea ch: namely, that pl ainti ffs have failed to plead “ri ghts in pr operty taken in vi olati on of internat ional l aw are in iss ue,” see 28 U.S.C. § 1605(a

)(3) , becaus e int ernati onal l aw only l imits stat e expropri ati on of for eign pr operti es. I would f ind th at internatio nal law clearly p rohibits ex prop riation co mm itted in fur theran ce of g enoc ide an d othe r grave hum an rights viola tions, su ch a s is pled her e. 42 As set forth supra , the executi ve deference

doctrine s uggested by Altmann and Sosa is disti nct from the justiciability doctr

ine applied h ere by the maj ority. Mo re import antly, the m ajority’s conflation of the two sets a dangerous precedent. The justiciability doctrine is severe in its consequenc e: mandatory dismiss al. But th is severi ty is miti gated by the narrownes s of itsscope, which includ es only tho se cases wh ere the judiciary would t ruly be exceed

ing its con stitutional authority, not simply treading on areas of overlapping authority. Conversely, the doctrine of executi ve defere nce is broa d in its scop e—potent ially a pplying whereve r the exec utive fil es a

statement of intere st couns eling dism issal—bu t limited i n its eff ect because i

t preser ves judicial discretion and contemplates t hat other f

actors mi ght overr ide the Execut

ive’s interest. By joining the two doctrines here as a threshold basis for dismissing this case, the majority creates th e potential

for a str ikingly bro ad doctrin e mandating d ismiss al whenever t

he Executive argues that an issue presented to the court threatens to intrude on its foreign policy interests. I find the prospect of such a doctrine troubling as well as novel. Accordingly, I respectfully dissent. 28