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DC Circuit Says Chabad Can Proceed Against Russia On Claims To Two Book Collections

By Howard M. Friedman

The D.C. Circuit Court of Appeals on Friday held that the parent organization for the Orthodox Jewish Chabad movement can pursue its claims against the Russian government to recover two historic collections of Jewish religious books and manuscripts. One collection, known as the "Library", was seized by Russia's Bolshevik government in 1917. The other, known as the "Archive" was taken by Soviet military forces in 1945. In Agudas Chasidei Chabad of United States v. Russian Federation, (DC Cir., June 13, 2008), the court held that Chabad satisfied the jurisdictional requirements of the Foreign Sovereign Immunities Act both as to the Library and the Archive, reversing the district court's holding (see prior posting) that it lacked jurisdiction over the Library claim. The district court had found no violation of international law because the Library was taken from a Soviet citizen-- the Fifth or Sixth Rebbe. However the Court of Appeals found there is a substantial claim that the Library was property of the worldwide Chabad organization, and alternatively that the Library was retaken in government actions in 1991-92 after a legal recovery of the Library by Chabad.

The appellate court also agreed with the district court's rejection of a forum non conveniens motion. Finally the court dealt with Russia's Act of State defense. It agreed with the district court that the defense was not available as to the Archive, and vacated the lower court's holding that the Act of State doctrine was an alternative ground for dismissing the claim as to the Library. The court found that while the events of 1917-25 create substantial questions about the applicability of the Act of State doctrine, Soviet actions in 1991-92 that arguably amounted to a retaking of the Library would not be subject to that defense. Judge Henderson concurred in the judgment, but disagreed with the majority's analysis of what must be shown to prove jurisdiction under the FSIA. The decision is discussed by Jurist and in a press release by Bingham McCutchen, attorneys for plaintiffs

Full post as published by Religion Clause on June 15, 2008 (boomark / email).