Agudas Chasidei Chabad of United States v. Federation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2008 Decided June 13, 2008

No. 07-7002

AGUDAS CHASIDEI CHABAD OF UNITED STATES,
APPELLEE/CROSS-APPELLANT

v.

RUSSIAN FEDERATION, RUSSIAN MINISTRY OF CULTURE AND
MASS COMMUNICATION, RUSSIAN STATE LIBRARY, AND
RUSSIAN STATE MILITARY ARCHIVE,
APPELLANTS/CROSS-APPELLEES

Consolidated with
07-7006

Appeals from the United States District Court
for the District of Columbia
(No. 05cv01548)

James H. Broderick, Jr. argued the cause for
appellants/cross-appellees. With him on the briefs was
Donald T. Bucklin.

Nathan Lewin argued the cause for appellee/cross-
appellant. With him on the briefs were Marshall B.
 2

Grossman, Seth M. Gerber, Alyza D. Lewin, and William B.
Reynolds.

Before: HENDERSON, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Opinion concurring in the judgment filed by Circuit
Judge HENDERSON.

WILLIAMS, Senior Circuit Judge: Agudas Chasidei
Chabad of United States is a non-profit Jewish organization
incorporated in New York. It serves as the policy-making and
umbrella organization for Chabad-Lubavitch—generally
known as “Chabad”—a worldwide Chasidic spiritual
movement, philosophy, and organization founded in Russia in
the late 18th century. (Chabad’s name is a Hebrew acronym
standing for three kinds of intellectual faculties: Chachmah,
Binah, and Da’at, meaning wisdom, comprehension, and
knowledge.) In every generation since the organization’s
founding, it has been led by a Rebbe—a rabbi recognized by
the community for exceptional spiritual qualities. Agudas
Chasidei Chabad stakes claim to thousands of religious books,
manuscripts, and documents (the “Collection”) that were
assembled by the Rebbes over the course of Chabad’s history
and comprise the textual basis for the group’s core teachings
and traditions. The religious and historical importance of the
Collection to Chabad, which is extensively reviewed in the
district court opinion, can hardly be overstated. See Agudas
Chasidei Chabad v. Russian Federation (“District Court
Decision”), 466 F. Supp. 2d 6, 10-14 (D.D.C. 2006). Agudas
Chasidei Chabad says that the Collection was taken by the
Soviet Union—or its successor, the Russian Federation—in
violation of international law.
 3

According to the plaintiff’s allegations (as amplified in
some cases by later submissions), Russia’s Bolshevik
government seized one portion of the Collection (known as
the “Library”) during the October Revolution of 1917, taking
it from a private warehouse in Moscow, where the Fifth
Rebbe had sent it for safekeeping as he fled the German forces
invading Russia. Although the Soviet government initially
acted with some hesitancy, by 1925 it appears to have finally
rejected pleas for return of the Library by the Fifth Rebbe and
the Sixth (who succeeded the Fifth in 1920). The regime
stored the materials at its Lenin Library, which later became
the Russian State Library (“RSL,” a term we use to include its
predecessor).

After arresting the Sixth Rebbe for “counter revolutionary
activities” (namely establishing Jewish schools), the Soviets
beat him and sentenced him to death by firing squad, but then
commuted the sentence to exile. The Sixth Rebbe resettled in
Latvia in 1927 and became a citizen there, bringing with him
another set of religious manuscripts and books known as the
“Archive.” In 1933 he moved to Poland, bringing the Archive
along. On September 1, 1939, Nazi German forces invaded
Poland, forcing the Rebbe to flee yet again. Nazi forces
seized the Archive and transferred it to a Gestapo-controlled
castle at Wölfelsdorf, a village about fourteen miles south of
Glatz (now Klodzko) in Lower Silesia. Soviet military forces
commandeered the Archive in September 1945, calling its
contents “trophy documents” and carrying them away to
Moscow. The Archive is now held by the Russian State
Military Archive (“RSMA,” again a term we use to include its
predecessors).

With the assistance of the U.S. government, the Sixth
Rebbe escaped Nazi Europe and came to New York, where
Agudas Chasidei Chabad was incorporated in 1940. The
plaintiff and its predecessor made various efforts to recover
 4

the Collection for nearly 70 years. It enjoyed brief successes
regarding the Library in 1991-1992, amid a flurry of Soviet
and then Russian judicial, executive, and legislative
pronouncements, but various governmental actions ultimately
thwarted the group’s efforts to secure possession of the
Library, actions that it describes as a further expropriation.

To regain possession of both the Library and the Archive,
the plaintiff brought suit against the Russian Federation as
well as its Ministry of Culture and Mass Communication, the
RSL, and the RSMA (all collectively referred to as “Russia”
except as needed to distinguish among them). Russia moved
to dismiss the claims on grounds of foreign sovereign
immunity, forum non conveniens, and the act of state
doctrine. Before the district court,1 Russia scored a partial
victory; the court dismissed all claims as to the Library,
finding for them no exception to Russia’s sovereign
immunity, but it denied Russia’s motion as to the Archive.
District Court Decision, 466 F. Supp. 2d at 31. Both sides
appeal.

We affirm the district court’s order in part and reverse it
in part. First, on our reading of the expropriation exception of
the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1605(a)(3), plaintiffs must demonstrate certain jurisdictional
prerequisites by a preponderance of the evidence before the
case goes forward, whereas they can satisfy others simply by
presenting substantial and non-frivolous claims. On this
reading, we hold that Agudas Chasidei Chabad satisfied the
FSIA’s jurisdictional requirements as to both the Library and

1
The plaintiff initially filed suit in the Central District of
California, but that court, in response to a Russian motion for
change of venue, ordered the case transferred to the district court
here.
 5

the Archive. Second, we conclude that the district court did
not abuse its discretion in rejecting the application of forum
non conveniens. Finally, we affirm the district court’s
rejection of Russia’s motion to dismiss as to the Archive on
act of state grounds, and we vacate its apparent ruling that the
act of state doctrine operates as an alternative ground for
dismissal of Chabad’s claims as to the Library.

I. FSIA: Immunity and Jurisdiction

The district court held that Russia was immune under the
FSIA with respect to the Library claims, but not with respect
to the Archive. 466 F. Supp. 2d at 31. Agudas Chasidei
Chabad’s appeal as to the Library is properly before us
because the district court entered final judgment as to those
claims under Fed. R. Civ. P. 54(b), expressly determining that
there is “no just reason for delay” of appellate review. Under
the collateral order doctrine, we also have jurisdiction over
Russia’s appeal of the district court’s assertion of jurisdiction
over the Archive claim. See Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir.
2004).

A. Background and General Principles

Section 1330(a) of Title 28 gives the district courts
subject matter jurisdiction over cases against foreign states “as
to any claim for relief in personam with respect to which the
foreign state is not entitled to immunity either under sections
1605-1607 of this title [parts of the FSIA] or under any
applicable international agreement.” In its suit against Russia,
Agudas Chasidei Chabad argues that the FSIA’s expropriation
exception, § 1605(a)(3), precludes the defendants’ immunity.
It states in relevant part:
 6

(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States
in any case—

....

(3) in which [A] rights in property taken in violation of
international law are in issue and [B][1] that property or
any property exchanged for such property is present in
the United States in connection with a commercial
activity carried on in the United States by the foreign
state; or [2] that property or any property exchanged for
such property is owned or operated by an agency or
instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in
the United States . . . .

28 U.S.C. § 1605(a)(3).

The provision appears to rest jurisdiction in part on the
character of a plaintiff’s claim (designated “A”) and in part on
the existence of one or the other of two possible “commercial
activity” nexi between the United States and the defendants
(designated “B”). Before exploring the statute’s particular
requirements, we pause to note the standards by which courts
are to resolve questions of federal jurisdiction.

First, to the extent that jurisdiction depends on particular
factual propositions (at least those independent of the merits),
the plaintiff must, on a challenge by the defendant, present
adequate supporting evidence. Thus, a plaintiff must establish
the facts of diversity for purposes of jurisdiction under 28
U.S.C. § 1332. McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178 (1936). For purely factual matters under the
FSIA, however, this is only a burden of production; the
burden of persuasion rests with the foreign sovereign claiming
 7

immunity, which must establish the absence of the factual
basis by a preponderance of the evidence. See, e.g., Aquamar
S.A. v. Del Monte Fresh Produce N.A., Inc. 179 F.3d 1279,
1290 (11th Cir. 1999); Cargill Int’l v. M/T Pavel Dybenko,
991 F.2d 1012, 1016 (2d Cir. 1993); Alberti v. Empresa
Nicaraguense de la Carne, 705 F.2d 250, 255-56 (7th Cir.
1983).

Second, to the extent that jurisdiction depends on the
plaintiff’s asserting a particular type of claim,2 and it has
made such a claim, there typically is jurisdiction unless the
claim is “immaterial and made solely for the purpose of
obtaining jurisdiction or . . . wholly insubstantial and
frivolous,” i.e., the general test for federal-question
jurisdiction under Bell v. Hood, 327 U.S. 678, 682-83 (1946),
and Arbaugh v. Y & H Corp., 546 U.S. 500, 513 & n.10
(2006). (Other circuit courts have applied this same standard
when jurisdiction depends on factual propositions intertwined
with the merits of the claim, but we need not express any
opinion on this point. See Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1040 (9th Cir. 2004); cf. Morrison v. Amway
Corp., 323 F.3d 920, 925 (11th Cir. 2003) (finding no need
for the independent ascertainment, for jurisdictional purposes,
of merits-intertwined facts).) The Bell v. Hood standard to be
applied is obviously far less demanding than what would be
required for the plaintiff’s case to survive a summary
judgment motion under Fed. R. Civ. P. 56. Thus, for
example, in Clark v. Tarrant County, 798 F.2d 736 (5th Cir.
1986), the court upheld jurisdiction on a finding that the
plaintiffs’ position on the disputed element of their claim
“cannot be said [to be] wholly frivolous,” id. at 742, saying

2
We do not understand our concurring colleague’s
gerrymandering of this phrase to suggest that it refers to
jurisdictional facts. See Henderson Op. at 2.
 8

expressly that it did “not intimate whether” the plaintiffs in
fact established the necessary element, id. at 743. See
generally Harry T. Edwards & Linda A. Elliott, Federal
Standards of Review ch. III.A (2007).

Section 1605(a)(3) presents both types of jurisdictional
questions. The alternative “commercial activity”
requirements (“B”) are purely factual predicates independent
of the plaintiff’s claim, and must (unless waived—see below)
be resolved in the plaintiff’s favor before the suit can proceed.
The remainder (“A”) does not involve jurisdictional facts, but
rather concerns what the plaintiff has put “in issue,”
effectively requiring that the plaintiff assert a certain type of
claim: that the defendant (or its predecessor) has taken the
plaintiff’s rights in property (or those of its predecessor in
title) in violation of international law.3 It is undisputed that
Agudas Chasidei Chabad has made such claims as to both
parts of the Collection. The defendants assert various legal
and factual inadequacies in the claims. It is rather unclear
what standard the district court applied to those contentions,
but Bell requires only that such potential inadequacies do not
render the claims “wholly insubstantial” or “frivolous.” See
327 U.S. at 682-83. As we shall show below, the claims
plainly survive that test.

Russia has seemed to draw a distinction between the
“rights in property” element of the plaintiff’s claim and the
“taken in violation of international law” element. In a motion
to dismiss Russia conceded that “[h]ere, for the purposes of
3
The District Court stated that under § 1605(a)(3) a
plaintiff can put property “in issue” without making any claim of its
own to rights in the property. 466 F. Supp. 2d at 21-22. This is
incorrect; and, in any case, a plaintiff relying on § 1605(a)(3) would
have an independent obligation to assert a basis for its own
standing.
 9

this motion only, the first prong [of the expropriation
exception] (rights in property at issue) is not disputed,
inasmuch as Plaintiff’s claims of right to the Library and the
Archive are placed in issue by Plaintiff’s complaint.” Def.
Mot. Dismiss 10. The motion then stated, “Obviously, the
Defendants vigorously deny that Plaintiff has any right of
ownership or possession of either the Library or the Archive.”
Id. at 10 n.7. On that issue, therefore, Russia recognized that
Agudas Chasidei Chabad’s burden was only to put its rights in
property in issue in a non-frivolous way. Where a plaintiff
has failed to do so, such as by making concessions logically
inconsistent with a substantial claim to “‘rights in property’ of
which he was deprived in derogation of international law,” a
court will not find jurisdiction. Peterson v. Kingdom of Saudi
Arabia, 416 F.3d 83, 88 (D.C. Cir. 2005).

When it came to whether rights had been “taken in
violation of international law,” however, Russia vigorously
disputed the matter, seeming to regard this element as a
jurisdictional fact that—like “commercial activity”—must be
resolved definitively before the court could proceed to the
merits. On the contrary, for jurisdiction, non-frivolous
contentions suffice under Bell. Thus in West v. Multibanco
Comermex, S.A., 807 F.2d 820 (9th Cir. 1987), the Ninth
Circuit found jurisdiction proper under § 1605(a)(3) when the
plaintiff’s claim of conversion was “substantial and non-
frivolous” and “provide[d] a sufficient basis for the exercise
of our jurisdiction, even though we ultimately rule against the
plaintiffs on the merits”; indeed, the court found on the merits
that the defendant’s acts were not actually “takings in
violation of international law.” Id. at 826, 831-33; see also
Siderman de Blake v. Republic of Argentina, 965 F.2d 699,
712-13 (9th Cir. 1992) (finding “no difficulty [in] concluding
that the . . . complaint contains ‘substantial and non-frivolous’
allegations that [the disputed property] was taken in violation
 10

of international law,” subject to further fact finding on
remand).

B. Specific Application

We address first the “rights in property” element of the
plaintiff’s claim, then the “taken in violation of international
law” element, and then the commercial activity nexus.
Finally, we address Russia’s related argument that the plaintiff
failed to exhaust its remedies in Russia before proceeding in
the United States.

1. Agudas Chasidei Chabad’s property rights. The
plaintiff maintains that the international Chabad organization
held a property interest in the Collection as it accumulated,
with a succession of Rebbes acting as custodians for the
benefit of Chabad and its followers, and that on incorporation
it automatically became vested under New York law with the
property rights of its predecessor entity. See N.Y. Relig.
Corp. Law § 4. As mentioned, Russia initially conceded that
“[h]ere, for purposes of this motion only, the first prong [of
the expropriation exception] (rights in property at issue) is not
disputed, inasmuch as Plaintiff’s claims of right to the Library
and the Archive are placed in issue by Plaintiff’s complaint.”
Def. Mot. Dismiss 10. Before us, however, in its reply brief,
Russia claims that it somehow rendered its waiver
inoperative.4

4
An FSIA defendant’s waiver of immunity is effective to
meet the FSIA’s jurisdictional requirements because Congress, in
deploying the FSIA to implement Article III’s grant of subject
matter jurisdiction over suits between citizens of a state and foreign
states, limited that jurisdiction to cases in which a foreign state (or
its agency or instrumentality) is not immune under the FSIA. Those
immunities are entirely personal, as is shown by Congress’s
 11

Whether it did so or not is of no moment, however, as the
concession was obviously correct; the plaintiff’s complaint
indeed put in issue its property rights, if any, in the Collection.
Russia’s sole basis for attacking the plaintiff’s assertion of
property rights rests on a notion that the Collection’s
ownership has been conclusively resolved against Agudas
Chasidei Chabad in a prior litigation: Agudas Chasidei
Chabad of United States v. Gourary, 650 F. Supp. 1463
(E.D.N.Y 1987), aff’d, 833 F.2d 431 (2d Cir. 1987). As
Russia was not a party to that litigation, any preclusive effect
could only take the form of non-mutual collateral estoppel.
And while the effectiveness of such an estoppel argument to
render a claim “frivolous” is unclear, in any event the
Gourary judgment affords Russia no basis for precluding the
plaintiff here.

In Gourary, Agudas Chasidei Chabad sued the Sixth
Rebbe’s heirs over the ownership of certain religious books
and manuscripts that the Sixth Rebbe possessed in New York
at the time of his death (obviously not the Library or the
Archive, which were in Russia). The plaintiff claimed that the
Rebbe held them on behalf of the Chabad community and that
they therefore belonged to Agudas Chasidei Chabad; the
Rebbe’s heirs claimed them to be his personally and therefore
part of his estate. The books and papers at issue were ones
collected after 1925 that had made their way from Poland to
America during World War II and thereafter.

The reasons not to apply non-mutual collateral estoppel
here seem to be legion, but let us simply address one fatal

specification in § 1605(a)(1) that there is no immunity in any case
in which the foreign state has waived immunity. See generally
Caleb Nelson, Sovereign Immunity as a Doctrine of Personal
Jurisdiction, 115 Harv. L. Rev. 1559 (2002).
 12

problem. Issue preclusion can be applied only as to an issue
resolved against the party sought to be estopped and necessary
to the judgment. Consol. Edison Co. of N.Y. v. Bodman, 449
F.3d 1254, 1258 (D.C. Cir. 2006) (citing Restatement
(Second) of Judgments § 27). In Gourary, Agudas Chasidei
Chabad had pressed two alternative theories. The broad one
was that it (or its predecessor) had owned the materials from
the start of the collection, the successive Rebbes acting at all
times on behalf of the religious community. The narrow one
was that the Sixth Rebbe had owned them and then
subsequently transferred them to Agudas Chasidei Chabad. In
ruling in favor of Agudas Chasidei Chabad, the Gourary court
appeared to rely on the narrow theory, 650 F. Supp. at 1474 &
n.9, 1476, but to the extent that it rejected the broad theory,
that rejection was completely unnecessary to the court’s
unqualified judgment in Agudas Chasidei Chabad’s favor.

At oral argument Russia tried to save its theory by a
claim that the Gourary court decided in part against Agudas
Chasidei Chabad, because on the narrow theory Agudas
Chasidei Chabad would be holding the documents for the
benefit of the worldwide religious community, of which the
Sixth Rebbe’s heirs were members. Tr. of Oral Arg. at 12-13.
Even assuming arguendo that some difference in community
members’ rights might turn on whether the community’s
ownership rested on one historical theory as opposed to
another, the Rebbe’s heirs were not seeking access to the
materials as members of the community; they were seeking
outright ownership. They lost. Completely.

2. A taking in violation of international law. Under this
prong, Russia challenges both Agudas Chasidei Chabad’s
Library claims—the taking in 1917-1925 and the taking (or
retaking) in 1991-1992. (It does not challenge the district
court’s holding on the Archive claim under this prong except
with respect to exhaustion, as discussed below.) As to the
 13

Library’s taking in 1917-1925, Russia’s sole challenge rests
on its contention that at the relevant times, the Library and the
Archive were the personal property of the Fifth or the Sixth
Rebbe (who were Soviet citizens in the 1917-1925 period),
not of Chabad, so that any taking by the Soviet government
could not have violated international law. But again Russia
rests entirely on its proposed misapplication of the Gourary
case, and thus fails to show the plaintiff’s claim to be
insubstantial or frivolous. (Apparently relying only on
Gourary, the district court adopted Russia’s view as to the
ownership of the Library and its proposed conclusion as to the
absence of any violation of international law. But the
plaintiff’s contention is that the worldwide Chabad
organization, not any Soviet citizen, owned the Library,
creating at least a substantial and non-frivolous claim of a
taking in violation of international law. Cf. De Sanchez v.
Banco Central de Nicaragua, 770 F.2d 1385, 1396-97 & n.17
(5th Cir. 1985); Restatement (Third) of the Foreign Relations
Law of the United States § 712 (1987).)

This leaves the alleged taking of the Library in 1991-
1992. To the extent that Russia again relies on Gourary, its
reliance is no better grounded than before. But here the
defendants have a stronger theory, namely that the events of
1991-1992 were not a taking at all. In view of the plaintiff’s
contention that the Library had been taken in 1917-1925, this
obviously has some traction. We emphasize yet again,
however, that the jurisdictional question is only whether the
plaintiff’s claim is wholly insubstantial or frivolous. It is not.

To simplify matters, we look first at Agudas Chasidei
Chabad’s theory. It casts the events of 1991-1992 as a
“renewal” of the earlier illegal takings. Chabad Br. 41. The
facts of Altmann v. Republic of Austria, 142 F. Supp. 2d 1187,
1203 (C.D. Cal. 2001), aff’d, 317 F.3d 954, 968 n.4 (9th Cir.
2002), aff’d 541 U.S. 677 (2004), provide a possible template.
 14

There a plaintiff’s predecessors in title recovered Klimt
paintings that the Nazis had seized, but then, in exchange for
export licenses, “donated” them to a government art gallery.
They claimed that the forced donation was a taking. Here,
Agudas Chasidei Chabad never recovered possession of the
Library, but we should think that a final court decree in its
favor, subject to no lawful appeal, might be considered a
recovery, such that government frustration of the decree’s
enforcement could qualify as a renewal of the earlier taking.
In this country, certainly, if a property owner secured a
judgment invalidating a prior taking, affirmed by the highest
court having jurisdiction, we would likely see executive
officials’ later assertion of ownership, and their frustration of
the owner’s efforts at physical recovery, as very much like a
retaking of the property.

The procedural history surrounding the Library, however,
is far more complex. In 1990, as perestroika unfolded, the
Seventh Rebbe dispatched a delegation to the Soviet Union to
undertake further efforts to obtain the Library. Various
institutions, first of the Soviet Union and then of the Russian
Federation, proceeded to issue a welter of confusing orders
and decrees. On September 6, 1991 Alexander Yakovlev, a
special adviser to General Secretary Mikhail Gorbachev,
assured the Chabad delegation that Gorbachev would that day
issue an order to the RSL to return the Library to Chabad.
The delegation followed this up with a petition to a Soviet
court, the State Arbitration Tribunal, to direct the RSL to
return the Library. That court issued such a direction on
October 8, 1991, giving the RSL one month to comply and
placing a lien on the Library. State Arbitration Tribunal,
Russian Socialist Federative Soviet Republic, Case #350/13
(Oct. 8, 1991). The court also found that the Library was “the
communal property of the entire Agudas Chasidei Chabad
movement” and that the Soviet government had failed to
prove that the Library “acquir[ed] a status of National
 15

property.” Id.; see also District Court Decision, 466 F. Supp.
2d at 13.

On November 18, 1991, the Chief State Arbiter affirmed
in part and reversed in part. Chief State Arbiter, State
Arbitration Court of the Russian Soviet Federative Socialist
Republic, Decree Regarding Reconsideration of Ruling, No.
350/13H (Nov. 18. 1991) (“11/18/91 Decree”). He stated that
“the Arbitration Court is not obligated to consider the matter
of legal ownership of the . . . Library by either the Community
or the State (represented by [the RSL]), since evidence on file
in this case does not contain any basis upon which assumption
can be made that the aforementioned collection belongs to
anyone other than the Lubavitcher Rebbe.” Id. The district
court characterized this as a finding that “the Rebbe, rather
than Chabad, was the rightful owner of the Library,” 466 F.
Supp. 2d at 18 (emphasis added), and thus as a rejection of the
lower tribunal’s conclusion that the Library was the
“communal property of the entire Agudas Chasidei Chabad
movement.” That characterization is questionable, however.

The higher court’s action was to grant the Chabad
community precisely the relief it sought. After noting that the
“Community [had] appealed to the State Arbitration Court,
requesting that the . . . Library be transferred to the newly
established Jewish National Library,” 11/18/91 Decree at 4,
the Chief State Arbiter ordered the transfer of the Library—
starting the day of the decision’s issuance—to precisely that
institution. Id. The Jewish National Library was Chabad’s
co-petitioner in the lawsuit, and the plaintiff’s expert,
Professor Veronika R. Irina-Kogan, declared under oath that
the Jewish National Library participated in the suit “on behalf
of the Chabad Community.” Declaration of Veronika R.
Irina-Kogan ¶ 11.
 16

Thus there appears a substantial and non-frivolous factual
basis for the view that the November 18, 1991 decision of the
Chief State Arbiter represented a legal recovery of the
property by Agudas Chasidei Chabad, possibly subject to
limitations on its removal from Russia. See 11/18/91 Decree
at 3 (stating that the materials were “part of Russia’s national
treasure”).

But the delegation’s efforts to have the order carried out
were frustrated—a frustration that arguably constituted a new
taking. According to a declaration submitted by the plaintiff,
RSL staff members responded to their efforts to take
possession by taunting them with anti-Semitic slurs and
threats of violence. “[A]pproximately 30 baton-wielding”
RSL police officers allegedly attacked the delegation and its
supporters. Declaration of Rabbi Boruch Shlomo Eliyahu
Cunin ¶ 10.

In December 1991 the Soviet Union dissolved, to be
replaced by various successor states, including the Russian
Federation. On January 29, 1992, Deputy Chairman of the
Russian Federation Aleksandr Shokhin ordered the RSL to
relinquish the Library. The executive order stated that the
Russian government “accept[s] a request from officials of the
movement of Lubavich Chassids (Agudas Chasidei Chabad)
for the delivery of [Library] holdings available to the [RSL] to
the [Maimonides] State Jewish Academy,” which houses the
Jewish National Library. By directing the latter to duplicate
the documents and deliver the copies to the RSL “before the
end of 1992,” the order by implication required delivery of the
originals to the Jewish National Library well before that date.
Government of the Russian Federation Regulation No. 157-r
(Jan. 29, 1992), Declaration of Tatiana K. Kovaleva, Ex. D.
An affidavit submitted by the plaintiff characterizes the
resolution as “ordering the RSL to return the Library to
Chabad’s representatives.” Cunin Decl. ¶ 11. That reading
 17

appears plausible, given that the resolution is framed as the
executive’s “accept[ing]” a request from Agudas Chasidei
Chabad officials.

Thus, while the November 11, 1991 Decree may have
represented a judicial judgment transferring the Library into
the hands of Chabad’s allies, the Shokhin decree of January
1992 appears to have constituted parallel relief from the
executive branch.

But this executive relief was no more easily realized than
that provided by the Chief State Arbiter. The Chabad
delegation approached the RSL, but the plaintiff reports that
once again it was confronted by an anti-Semitic mob, which
thwarted its efforts to secure the Library, this time incited by
the director of the manuscript department at the RSL, who
“shout[ed] death threats through a bullhorn.” Cunin Decl.
¶ 11.

Further, Chabad’s original success before State
Arbitration Tribunal and the Chief State Arbiter encountered
not only practical but also juridical frustration. On February
14, 1992, the Deputy Chief State Arbiter of the Russian
Federation purported to reverse the prior court orders that had
required that the RSL transfer the Library, and ordered that
“all further action” in the case “cease.” Agudas Chasidei
Chabad’s expert maintains that the deputy made the ruling
“unilaterally and secretly” and says that the deputy lacked
authority under Russian law to nullify the order of the Chief
State Arbiter, and that his ruling “lacked any legal or binding
effect under Russian law.” Irina-Kogan Decl. ¶¶ 12-14.
Given the decider’s title as “Deputy Chief State Arbiter,” the
assertion is hardly implausible.

Finally, a legislative action purported to reverse
Shokhin’s January 29, 1992 decree ordering transfer of the
 18

Library to Chabad’s representative. On February 19, 1992,
the Russian Federation’s Supreme Soviet (despite its title, a
body vested with legislative authority only between sessions
of the Congress of Soviets, a/k/a Congress of People’s
Deputies) issued an order purporting to nullify that decree and
stating that “the safety, movement and use of the holdings
available to the Russian State Library [be effectuated] solely
on the basis of the legislation of the Russian Federation and
the provisions of international law.” Supreme Soviet of the
Russian Federation, Decree No. 2377-1 (Feb. 19, 1992).
Agudas Chasidei Chabad’s later attempts to secure the return
of the Library have all failed.

To the extent that Shokhin’s decree or the Chief State
Arbiter’s order effected a recovery of the Library (within the
meaning of Altmann), the actions of the Deputy Chief State
Arbiter and the Supreme Soviet, coupled with RSL action on
the ground, would appear to have effected a retaking. To
return to our earlier variation on the facts of Altmann: if the
victim of a property seizure secured a judgment from the
highest available judicial authority that papers seized by the
government should be turned over to its ally, and a lower
court then abruptly “reversed” that decision, authorizing the
government to keep the papers, we would have little difficulty
viewing the latter order as a purported retaking of the
property. It would enhance the retaking case if high executive
officials issued orders paralleling those of the highest court,
followed by countermanding legislative action and
accompanied by government officials’ physical action. We
cannot say that the analogy is perfect. Here, the lines of
authority among the various judicial, executive, and
legislative bodies appear to defy comprehension by outsiders
(indeed, they may be inconsistent with the concept of lines of
authority altogether). But neither can we declare insubstantial
or frivolous the plaintiff’s claim that the 1991-1992 actions of
Russia and the Russian State Library constituted a retaking of
 19

the property; thus we reverse the district court’s decision on
the point.

3. Commercial activity. Contrary to Russia’s claims, we
find that both the RSMA and the RSL engaged in sufficient
commercial activity in the United States to satisfy that
element of 28 U.S.C. § 1605(a)(3). (The district court so
found for the RSMA, but did not reach the issue as to the RSL
because, focusing exclusively on the events of 1991-1992, it
concluded that the plaintiff had failed to show a taking of the
Library in violation of international law. 466 F. Supp. 2d at
23, 24 & n.22.)

The argument over the RSL’s and RSMA’s commercial
activities rests on the relationship between the two clauses
specifying alternative commercial activity requirements,
which bear repeating here:

(3) in which [A] rights in property taken in violation of
international law are in issue and [B] [1] that property or
any property exchanged for such property is present in
the United States in connection with a commercial
activity carried on in the United States by the foreign
state; or [2] that property or any property exchanged for
such property is owned or operated by an agency or
instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the
United States . . . .

§ 1605(a)(3) (emphasis added).

Section 1603(d) offers a rather broad definition of
commercial activity for purposes of the FSIA:

(d) A “commercial activity” means either a regular
course of commercial conduct or a particular commercial
transaction or act. The commercial character of an
 20

activity shall be determined by reference to the nature of
the course of conduct or particular transaction or act,
rather than by reference to its purpose.

§ 1603(d). The phrase “commercial activity carried on in the
United States,” by contrast, is defined as “commercial activity
carried on by such state and having substantial contact with
the United States.” § 1603(e) (emphasis added).

In the face of § 1603(d)’s hospitable language, Russia
offers a rather subtle argument for a more demanding test. It
suggests that since the first nexus clause in § 1605(a)(3)
requires that the property be present in the United States in
connection with a commercial activity carried on in the United
States, it would be quite anomalous if the second clause,
requiring neither physical presence in the United States nor
such a link (between property physically present and the
commercial activity), could be satisfied unless the level of
commercial activity was at least “a level of activity equal to
the standard established by the phrase ‘carried on’ of the first
prong and, accordingly, require ‘substantial contact’ with the
United States.” Russia Br. 42.

To support this conclusion Russia stresses the language in
§ 1603(e) quoted above, which requires that for commercial
activity to qualify as “carried on in the United States” it must
have “substantial contact with the United States.” Then,
noting that among Webster’s Third International’s examples
of “engaged” is to “begin and carry on an enterprise,” Russia
sprints to the conclusion that “engage in” in the second prong
must mean “carry on”; thus, abracadabra, the second prong
includes the first prong’s cross-referenced substantiality
requirement.

We need not decide whether Agudas Chasidei Chabad
can satisfy this more demanding standard, for Russia’s
 21

argument plainly cannot work. Congress took the trouble to
use different verbs in the separate prongs, and to define the
phrase in the first prong. Russia wants us to turn that upside
down and obliterate the distinction Congress drew. Moreover,
we see no anomaly in applying the “commercial activity”
definition set forth in § 1603(d). While the first clause of
§ 1605(a)(3) and the definition in § 1603(e) are quite
demanding in some respects, the clause applies to activities
“carried on by the foreign state,” whereas the second clause
involves the commercial activities of the foreign state’s
agencies and instrumentalities. Congress might well have
thought such entities’ greater detachment from the state itself
justified application of § 1603(d)’s broad definition. (Russia
concedes that both the RSL and the RSMA are “agencies or
instrumentalities” of the Russian Federation for this purpose.
Russia Reply Br. 38 n.8.) The substantiality requirement of §
1603(e) is thus inapplicable.

Section 1603(d)’s first sentence seems to set a low
quantitative threshold and its second sentence a low
qualitative one. As the Court said in Republic of Argentina v.
Weltover, Inc., 504 U.S. 607 (1992), the qualitative criterion
asks “whether the particular actions that the foreign state
performs (whatever the motive behind them) are the type of
actions by which a private party engages in ‘trade and traffic
or commerce,’” for “when a foreign government acts … in the
manner of a private player within [a market], the foreign
sovereign’s actions are ‘commercial’ within the meaning of
the FSIA.” Id. at 614. Thus “a foreign government’s issuance
of regulations limiting foreign currency exchange is a
sovereign activity, because such authoritative control of
commerce cannot be exercised by a private party.” Id.

Both the RSMA and the RSL have entered transactions
for joint publishing and sales in the United States easily
satisfying these standards. At the time of the filing of the suit
 22

in November 2004, the RSMA had entered contracts with two
American corporations for the reproduction and worldwide
sale of RSMA materials, including in the United States.
District Court Decision, 466 F. Supp. 2d at 21. One set of
contracts was with Primary Source Media and allowed the
American firm to publish, among other items, papers of Leon
Trotsky and other documents relating to the Russian Civil
War. The contracts include provisions waiving sovereign
immunity, specifying that the activities described in the
contract are “commercial in nature.” Agreement on the
Granting of Rights to Publish Archival Documents art. 14.
By the year 2000 the RSMA had received $60,000 in advance
royalties. See Declaration of Joseph Bucci ¶ 8; see also
Royalty Advance Statements, Primary Source Microfilm.
Another contract with Yale University Press provides for the
“joint preparation and publication of a volume of documents
entitled The Spanish Civil War” and garnered RSMA a
$10,000 royalty advance in the year of the contract.

The RSL has also contracted for cooperative commercial
activities in the United States. For example, it entered into
agreements with Norman Ross Publishing (later succeeded by
ProQuest), arranging for that firm to sell an encyclopedia and
to produce and distribute “microcopies” of various RSL
materials (in exchange for a 10% royalty payment to the
RSL). One such contract has already yielded RSL over
$20,000 and another over $5000.

Thus § 1605(a)(3)’s second alternative commercial
activity requirement is plainly satisfied.

4. Exhaustion. Russia contends that Agudas Chasidei
Chabad’s “taking claim as to the Archive must [] fail for the
reason that Chabad has failed to pursue and exhaust remedies
it has in the Russian Federation to recover the Archive.”
Russia Br. 34. (No such claim is made as to the Library,
 23

presumably in view of Agudas Chasidei Chabad’s heroic—but
ultimately frustrated—legal efforts with respect to those
materials.) The district court held that Agudas Chasidei
Chabad was not required to exhaust Russian remedies before
litigating in the United States. 466 F. Supp. 2d at 21. We
believe this is likely correct, but that in any event the remedy
Russia identifies is plainly inadequate.

As a preliminary matter, nothing in § 1605(a)(3) suggests
that plaintiff must exhaust foreign remedies before bringing
suit in the United States. Indeed, the FSIA previously
contained one exception with a local exhaustion requirement,
§ 1605(a)(7), which for certain suits required that the foreign
state be granted “a reasonable opportunity to arbitrate the
claim in accordance with accepted international rules of
arbitration.” Congress repealed that exception this year. See
National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, div. A, § 1083(b)(1)(A)(iii), 122 Stat. 3,
341 (2008) (repealing 28 U.S.C. § 1605(a)(7)). Obviously
before deletion of subsection (7) it would have been quite
plausible to apply the standard notion that Congress’s
inclusion of a provision in one section strengthens the
inference that its omission from a closely related section must
have been intentional, see United Mine Workers v. Mine
Safety & Health Admin., 823 F.2d 608, 618 (D.C. Cir. 1987);
we do not see that the inference is any weaker just because
Congress has, for independent reasons, removed the entire
exhaustion-requiring provision.

Russia invokes Restatement (Third) of Foreign Relations
Law of the United States, which notes:

Exhaustion of remedies. Under international law,
ordinarily a state is not required to consider a claim by
another state for an injury to its national until that person
has exhausted domestic remedies, unless such remedies
 24

are clearly sham or inadequate, or their application is
unreasonably prolonged.

Restatement § 713, cmt. f.

But this provision addresses claims of one state against
another. Its logic appears to be that before a country moves to
a procedure as full of potential tension as nation vs. nation
litigation, the person on whose behalf the plaintiff country
seeks relief should first attempt to resolve his dispute in the
domestic courts of the putative defendant country (if they
provide an adequate remedy). But § 1605(a)(3) involves a
suit that necessarily pits an individual of one state against
another state, in a court that by definition cannot be in both
the interested states. Here there is no apparent reason for
systematically preferring the courts of the defendant state.

Russia advances a more compelling theory based upon
Justice Breyer’s concurrence in Republic of Austria v.
Altmann, 541 U.S. 677 (2004), which noted that a plaintiff
seeking relief under § 1605(a)(3) “may have to show an
absence of remedies in the foreign country sufficient to
compensate for any taking” and that a “plaintiff who chooses
to litigate in this country in disregard of the postdeprivation
remedies in the ‘expropriating’ state may have trouble
showing a ‘tak[ing] in violation of international law.’” Id. at
714 (alteration in original). Thus Justice Breyer draws on a
substantive constitutional theory—that there simply is no
unlawful taking if a state’s courts provide adequate
postdeprivation remedies. Id. (citing City of Monterey v. Del
Monte Dunes, 526 U.S. 687, 721 (1999), and alluding to cases
applying that doctrine).

The substantive theory would seem to moot the argument
from the language of the FSIA and is independent of
Restatement § 713. Nonetheless, one may question whether it
 25

makes sense to extend such a requirement from the domestic
context, in which state courts are already bound by the U.S.
Constitution, to the foreign context, in which the courts that a
plaintiff would be required to try may observe no such limit.

Assuming that an exhaustion requirement exists,
however, the only remedy Russia has identified is on its face
inadequate. Russia points to a law entitled “Federal Law on
Cultural Valuables Displaced to the U.S.S.R. as a Result of
World War II and Located on the Territory of the Russian
Federation,” Federal Law N 64-FZ of April 15, 1998
(“Valuables Law”), available at
http://docproj.loyola.edu/rlaw/r2.html, particularly Articles 12
and 16. But, even assuming the other prerequisites of relief
were met, Article 19(2) of the statute authorizes return of
property only on the claimant’s “payment of its value as well
as reimbursement of the costs of its identification, expert
examination, storage, restoration, and transfer (transportation,
etc.),” without specifying rules for calculating value.
Whatever the valuation method, and assuming arguendo that
Russia’s payment of compensation would satisfy the
requirements of international law, obviously Russia’s mere
willingness to sell the plaintiff’s property back to it could not
remedy the alleged wrong.

II. Russia’s Defenses of Forum Non Conveniens
and Act of State

Russia moved to dismiss the claims as to the Library and
Archive on grounds of forum non conveniens, which the
district court denied. Russia also moved to dismiss on the act
of state doctrine, which the district court denied as to the
Archive but accepted as an alternative grounds for dismissal
as to the Library. The parties appeal the judgments adverse to
them. As above, we have jurisdiction over Agudas Chasidei
 26

Chabad’s appeal because the district court entered final
judgment on the Library claims under Fed. R. Civ. P. 54(b).
Russia properly asserts pendent appellate jurisdiction as to the
Archive under Gilda Marx, Inc. v. Wildwood Exercise, Inc.,
85 F.3d 675, 679-80 (D.C. Cir. 1996), which allows a court
with jurisdiction over one appeal also to exercise jurisdiction
over issues “inextricably intertwined” with those raised by
that appeal. We (and the plaintiff) agree that there is such
intertwining here.

A. Forum Non Conveniens

Russia claims that the district court abused its discretion
in denying its motion to dismiss the claims to the Library and
Archive on grounds of forum non conveniens. We disagree
and uphold the district court’s decision, which applies to the
entire Collection.

In deciding forum non conveniens claims, a court must
decide (1) whether an adequate alternative forum for the
dispute is available and, if so, (2) whether a balancing of
private and public interest factors strongly favors dismissal.
See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22
(1981). There is a substantial presumption in favor of a
plaintiff’s choice of forum. See Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 509 (1947); TMR Energy Ltd. v. State Property
Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005). We
review the district court’s determination to see if it was a
“clear abuse of discretion.” TMR Energy Ltd., 411 F.3d at
303.

The district court found that Russia had failed to meet its
burden of demonstrating the adequacy of the Russian forum.
466 F. Supp. 2d at 28; see also El-Fadl v. Cent. Bank of
Jordan, 75 F.3d 668, 677 (D.C. Cir. 1996). Our conclusion
 27

above that Russia’s Valuables Law did not provide an
adequate remedy with reference to any hypothetical
exhaustion requirement for the Archive might seem to compel
automatic affirmance of the forum non conveniens ruling
solely on that ground. But in this context a foreign forum “is
not inadequate merely because it has less favorable
substantive law,” El-Fadl, 75 F.3d at 678, so that the
adequacy issue would be more complicated. In any event, the
district court went on to resolve the balance of conveniences
in favor of the plaintiff, and we find no abuse of discretion in
that balance; we can affirm on that basis without addressing
the adequacy of the Russian forum in this context.

We need not rehearse the factors considered. We do note
two areas where Russia particularly finds fault with the
district court’s reasoning. First, it says that while the court
relied on the plaintiff’s agreement to pay the airfare and hotel
expenses of Russian witnesses needed for depositions here,
466 F. Supp. 2d at 29, in fact that agreement related solely to
the jurisdictional discovery process. Russia’s reading of the
stipulation appears correct, see Parties’ Stipulation Extending
Time to Respond to the Complaint, Setting a Briefing
Schedule, and Providing for Expedited Discovery of Elderly
Witnesses, Apr. 13, 2005, and the plaintiff does not answer
the objection. But the district court in the preceding sentence
referred to practical cooperation on other aspects of
jurisdictional discovery, and, when mentioning the witness
agreement, referred to it as contained in an “earlier
stipulation,” id.; thus the context of the court’s reference
suggests its full awareness of the agreement’s limits.
Accordingly, it seems reasonable to suppose that the court
simply regarded the witness agreement as a fact portending
similar cooperation in the future.

Second, Russia argues that the district court “will likely
be unable to afford Chabad the relief it seeks, possession of
 28

the Archive (and the Library).” Russia Br. 53. The district
court saw the argument as a contention that a Russian court
would not heed an American court’s judgment in the
plaintiff’s favor, and called it an “affront” to the court. 466 F.
Supp. 2d at 29. Some district courts have treated a United
States forum’s inability to provide relief directly as an
argument for granting a defendant’s forum non conveniens
motion, see McDonald’s Corp. v. Bukele, 960 F. Supp. 1311,
1319 (N.D. Ill. 1997); Fluoroware, Inc. v. Dainichi Shoji
K.K., 999 F. Supp. 1265, 1271-73 (D. Minn. 1997), though
one might have thought that was simply the plaintiff’s
problem. In any event, Agudas Chasidei Chabad points to the
FSIA provisions that allow attachment of certain Russian
government property in the United States, 28 U.S.C.
§ 1610(a)(3), (b)(2), evidently believing that attachment of
such property would give it significant leverage over the
defendants, enhancing the likelihood that Russia or its courts
would respect the judgment of a U.S. court. Russia does not
reply to the point, and it seems plausible.

In short, we find no abuse of discretion.

B. Act of State

Russia invokes the act of state doctrine, under which “the
Judicial Branch will not examine the validity of a taking of
property within its own territory by a foreign sovereign
government, extant and recognized by this country at the time
of suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles, even if the
complaint alleges that the taking violates customary
international law.” Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 428 (1964). The doctrine rests on a view that
such judgments might hinder the conduct of foreign relations
by the branches of government empowered to make and
 29

execute foreign policy. Id. at 423-25; see also W.S.
Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400,
404-05 (1990). The burden of proving an act of state rests on
the party asserting the defense. See Alfred Dunhill of London,
Inc. v. Republic of Cuba, 425 U.S. 682, 691 (1976).

1. The Archive. Russia invoked the act of state doctrine
by a motion under Fed. R. Civ. P. 12(b)(6), as the defendant
had in W.S. Kirkpatrick, a procedure that would be correct if
its absence is part of the plaintiff’s case but wrong if it is a
defense. In any event, the district court reviewed the parties’
extensive factual presentations before it ruled that “that the act
of state doctrine does not apply to the taking of the Archive.”
466 F. Supp. 2d at 26. The district court did not expressly
convert Russia’s Rule 12(b)(6) motion into a motion for
summary judgment, see Fed. R. Civ. P. 12(d), but because
Russia initially raised the matter and the disposition was to
deny its motion, it seems appropriate to treat the ruling as the
denial of a Russian motion for summary judgment. We affirm
the district court’s order; Russia has failed to show that it was
entitled to judgment as a matter of law.

The act of state doctrine applies only when a seizure
occurs within the expropriator’s sovereign territory.
Sabbatino, 376 U.S. at 428; Riggs Nat’l Corp. & Subsidiaries
v. Comm’r, 163 F.3d 1363, 1367 (D.C. Cir. 1999). As to the
Archive, Russia’s theory is that it seized the Archive in
German territory occupied by the Soviet Union, and that such
occupation would be sovereignty enough. We need not
consider the substantive validity of that theory, however,
because Russia fails to demonstrate that it seized the Archive
in occupied Germany rather than in Poland.

Far from placing the factual issue beyond dispute, Russia
merely asserts that there is uncertainty as to the exact location
of the Russian seizure. But even that claimed uncertainty
 30

appears trivial to non-existent. Records of the RSMA
submitted in the course of discovery state that the Archive
was received by the RSMA in September 1945 at
“Welfelsdorf,” in “Germany.”5 Russia does not deny that
“Welfelsdorf” is at most a misspelling of Wölfelsdorf,6 nor
does it claim that the scribe’s reference to “Germany”
undermines the fact that by September 1945 Wölfelsdorf was
part of Poland as defined by the Potsdam Protocol. Jointly
issued on August 1, 1945 by the United States, United
Kingdom, and Soviet Union, that Protocol announced a
tentative western border for Poland at the Oder-Neisse line, a
border which has never since been disturbed. It is undisputed
that Wölfelsdorf lies within Poland, as so defined.

Russia points to two items of evidence that it claims raise
doubt. First, it refers to a statement in the district court’s
recitation of facts to the effect that the Archive had been taken
to a “Gestapo-controlled castle in Germany.” 466 F. Supp. 2d
at 13 (quoting Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 7).
Given that Wölfelsdorf was part of pre-World-War-II
Germany, the statement is altogether consistent with RSMA
records showing that the Russian acquisition occurred in post-
war Poland.

5
See Joint Appendix 4:3086 (referring to a July 6, 2005
delivery of documents bearing Bates Nos. DEF00168-218); id. at
4:3099-3103 (listing origins of certain RSMA materials and bearing
Bates numbers encompassed in the prior reference); id. at 3:2253,
:2255, :2265-67 (deposition testimony of Vladimir N. Kouzelenkov,
director of the RSMA, referring to RSMA’s book listing incoming
materials).
6
In fact, the Russian “e” is in many contexts pronounced
“yo,” so it is far from clear that there is even a misspelling.
 31

Second, Russia points to a letter from the plaintiff to
President Vladimir Putin, stating that the Archive was “seized
by the Nazis and subsequently loaded on boxcars as they were
losing the war, to be taken deep into Germany and evade the
oncoming Russian liberators.” As with the contention that
the Nazis removed the Archive to a “Gestapo-controlled castle
in Germany,” the statement is not inconsistent with its later
capture by the Russians at Wölfelsdorf. Moreover, the letter
precedes the delivery to Agudas Chasidei Chabad of
documents showing the RSMA’s receipt of the materials at
Wölfelsdorf in September 1945.

In any event, the burden of providing a factual basis for
acts of state rests on Russia, see Riggs, 163 F.3d at 1367 n.5,
and it has not met its burden with respect to the Archive.

2. The Library. We have two taking scenarios regarding
the Library: the events of 1917-1925 and those of 1991-1992.
Having mistakenly found itself without jurisdiction over the
Library claim (a mistake in which it focused entirely on the
1991-1992 events), the district court said in a throwaway line
that “even were [the court] to have jurisdiction [over the
Library claims], these claims would be barred by the act of
state doctrine.” 466 F. Supp. 2d at 27.

The district court seemed to suggest that the 1991-1992
claims were barred because they challenged the decision of
the Deputy Chief State Arbiter and the decree of the Supreme
Soviet. Id. at 26-27. But the Second Hickenlooper
Amendment, 22 U.S.C. § 2370(e)(2), normally bars
application of the act of state doctrine to seizures occurring
after January 1, 1959. Thus the doctrine poses no apparent
barrier to the plaintiff’s claim that the 1991-1992 events
effected an unlawful taking.
 32

As to the district court’s apparent ruling that the doctrine
bars any recovery of the Library based on the 1917-1925
events, we vacate the district court’s order. The plaintiff
argues that Sabbatino itself would except the 1917-1925
seizure from the doctrine. As we shall explain, the argument
poses both sensitive foreign policy and jurisprudential issues.
If on remand the court finds that the 1991-1992 actions of
Russia and the RSL constituted an actionable retaking of the
property, it will be unnecessary to resolve those issues, which
in any event have not yet been the subject of either factual
development or thorough briefing. While of course the court
might (as a matter of insurance) resolve the plaintiff’s claimed
exception even if it accepts the latter’s theory as to 1991-
1992, and is free to address non-jurisdictional issues in any
order it chooses, we refrain from any final ruling and discuss
the complications of the claimed exception merely to
highlight the questions that the parties must address.

As the district court recognized, the events of 1917-1925
all occurred within Russia, and thus were official acts of a
sovereign nation regarding property within its borders. We
could not grant the requested relief without invalidating those
acts. See 466 F. Supp. 2d at 27; see also W.S. Kirkpatrick,
493 U.S. at 405.

Agudas Chasidei Chabad contends that the Sabbatino
decision allows relaxation of the doctrine in response to
certain countervailing factors. It points to the following
passage:

It should be apparent that the greater the degree of
codification or consensus concerning a particular area of
international law, the more appropriate it is for the
judiciary to render decisions regarding it, since the courts
can then focus on the application of an agreed principle to
circumstances of fact rather than on the sensitive task of
 33

establishing a principle not inconsistent with the national
interest or with international justice. It is also evident
that some aspects of international law touch much more
sharply on national nerves than do others; the less
important the implications of an issue are for our foreign
relations, the weaker the justification for exclusivity in
the political branches. The balance of relevant
considerations may also be shifted if the government
which perpetrated the challenged act of state is no longer
in existence, . . . for the political interest of this country
may, as a result, be measurably altered. Therefore, rather
than laying down or reaffirming an inflexible and all-
encompassing rule in this case, we decide only that the
Judicial Branch will not examine the validity of a taking
of property within its own territory by a foreign sovereign
government, extant and recognized by this country at the
time of suit, in the absence of a treaty or other
unambiguous agreement regarding controlling legal
principles, even if the complaint alleges that the taking
violates customary international law.

376 U.S. at 428. The passage mentions a number of factors
that might militate against application of the doctrine here.
Most significant are the phrase requiring that the taking have
been by a “sovereign government, extant and recognized by
this country at the time of suit,” and the earlier sentence
saying that the relevant considerations may shift when the
perpetrating government is no longer in existence. These
suggest that whatever flexibility Sabbatino preserves is at its
apex where the taking government has been succeeded by a
radically different regime.

Other circuits have on occasion declined to apply the
doctrine, or have directed consideration of countervailing
factors, in reliance on a change in regime. Two decisions
involve suits by the government of the Philippines against its
 34

former President Ferdinand Marcos, seeking to recover
property acquired by him in office. Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1361 (9th Cir. 1988)
(en banc) (declining to apply the act of state doctrine);
Republic of the Philippines v. Marcos, 806 F.2d 344, 359 (2d
Cir. 1986) (ordering the district court to weigh Sabbatino’s
qualifying considerations). In a third, Bigio v. Coca-Cola Co.,
239 F.3d 440 (2d Cir. 2000), the court found the doctrine
inapplicable to a suit by former Egyptian nationals against a
foreign corporation for its possession of property nationalized
by the defunct Nasser government; the sole expression of the
current Egyptian government on the matter was a letter from
the Minister of Finance directing the holder of the property to
return it to the plaintiffs. Id. at 452-53; cf. Bodner v. Banque
Paribas, 114 F. Supp. 2d 117, 130 (E.D.N.Y. 2000) (holding
the doctrine inapplicable to claims against banks that had
taken assets in the accounts of Jewish victims and survivors of
the Holocaust under the laws of Vichy France).

Here, of course, Russia and its agencies or
instrumentalities are the defendants, not private corporations
or defenestrated rulers. Plaintiff has pointed to statements in
its favor by Russian officials as high as former President Boris
Yeltsin; but the current Russian government, by its energetic
defense of this lawsuit, appears unwilling to relinquish the
Collection to Chabad. Thus, while no one doubts that the
collapse of the Soviet Union has entailed radical political and
economic changes in the territory of what is now the Russian
Federation, application of Sabbatino’s invitation to flexibility
would here embroil the court in a seemingly rather political
evaluation of the character of the regime change itself—in
comparison, for example, to de-Nazification and other aspects
of Germany’s postwar history. It is hard to imagine that we
are qualified to make such judgments. Moreover, our
plunging into the process would seem likely, at least in the
absence of an authoritative lead from the political branches, to
 35

entail just the implications for foreign affairs that the doctrine
is designed to avert.

Agudas Chasidei Chabad also points to Sabbatino’s
suggestion that “the greater the degree of codification or
consensus concerning a particular area of international law,
the more appropriate it is for the judiciary to render decisions
regarding it.” 376 U.S. at 428. It asserts that the seizure of
the Library occurred “in a campaign to suppress the practice
of Judaism, not for any bona fide economic, academic, or
other recognized governmental purpose. Hence the takings
were plainly violations of jus cogens norms, just as is racial
discrimination, and no less the subject of ‘consensus’
condemnation in the international community.” Chabad Br.
63.

The argument is intuitively appealing. But it would
require us to embark on a path of ranking violations of
international law on a spectrum, dispensing with the act of
state doctrine for the vilest. Further, as the Sabbatino Court
refused to countenance an exception for violations of
international law simpliciter, id. at 429-31, we are unsure
what it intended in its references to different degrees of
“consensus.” While it would be heartening to believe that
there is a nearly universal consensus against religious
prejudice in general or anti-Semitism in particular, a glance
around the world exposes glaring examples to the contrary in
areas containing a large fraction of the human population.

Not only are the purely legal questions posed by Agudas
Chasidei Chabad’s argument difficult, but there are factual
issues that might bear on the ultimate outcome. Agudas
Chasidei Chabad argues that the 1917-1925 confiscation was
driven by hostility to Judaism, and it maintained at oral
argument that discovery would yield further evidence.
Indeed, it is widely recognized that the Soviet government
 36

suppressed Jewish religious practice and persecuted Jews for
their religious beliefs. But to the extent that the Soviet Union
had embarked on a course of eradicating private property,
religion, and civil society generally, the role of selective
persecution in the Library’s seizure in 1917-1925 is unclear
on the current record. (On the other hand, perhaps there is a
stronger consensus against non-selective than selective
crushing of private property and civil society.) Without
suggesting that plaintiff’s proposed exception is necessarily
valid in any circumstances, we defer ultimate resolution and
simply vacate the ruling.

* * *

We therefore affirm the judgment of the district court
finding jurisdiction over Agudas Chasidei Chabad’s claims
concerning the Archive; we reverse its finding of Russia’s
immunity as to the Library claims based on the events of
1917-1925 and 1991-1992; we affirm the court’s rejection of
Russia’s forum non conveniens defense; we affirm its
rejection of Russia’s act of state defense to the Archive
claims; and we vacate its application of the act of state
doctrine to the Library claims.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring in
the judgment:
Although I concur in the judgment, I do not agree with the
analysis of the jurisdictional issue contained in Part I.A of the
majority opinion. The majority analyzes section 1605(a)(3),1 the
provision of the FSIA that allows the plaintiff’s claims to survive
dismissal, by dividing the section into two parts that, in its view,
impose different burdens on the plaintiff. The portion of section
1605(a)(3) involving “rights in property taken in violation of
international law” (labeled “A” by the majority) requires only
that the plaintiff “assert a certain type of claim: that the
defendant . . . has taken the plaintiff’s rights in property . . . in
violation of international law,” which claim—to suffice—must
not be “ ‘wholly insubstantial’ or ‘frivolous.’ ” Maj. Op. 8
(citing Bell v. Hood, 327 U.S. 678, 682–83 (1946)). On the other
hand, the majority posits, the remainder of section 1605(a)(3)
(labeled “B” by the majority) requires the plaintiff to “present
adequate supporting evidence,” which “[f]or purely factual
matters under the FSIA . . . is only a burden of production;” id.

1
Section 1605(a)(3) provides:
A foreign state shall not be immune from the jurisdiction
of the courts of the United States or of the States in any
case— . . .
(3) in which rights in property taken in violation
of international law are in issue and . . .; [] that
property or any property exchanged for such
property is owned or operated by an agency or
instrumentality of the foreign state and that
agency or instrumentality is engaged in a
commercial activity in the United States . . . .
28 U.S.C. § 1605(a)(3).
 2

at 6.2 The majority differentiates the burdens based on whether
the jurisdictional facts track “the plaintiff’s . . . claim,” id. at 7,
that is, “A,” or are instead “particular factual propositions . . .
independent of the merits[],” id. at 6 (emphasis in original), that
is, “B.”
While all of this may be only dicta—after all, we all agree
the plaintiff’s claims to both the Library and the Archive survive
dismissal—our court has yet to recognize such a construct (as is
manifested by the majority’s reliance on other circuits’
precedent, Maj. Op. 7–10)3 and I do not join in its adoption

2
“B” sets forth two alternatives of the “commercial activity”
tie between the United States and the defendants also needed to
establish jurisdiction, the second of which the plaintiff relies on.
See note 1 supra.
3
I reject the majority’s reliance on Bell v. Hood, 327 U.S.
678, 682–83 (1946), and Arbaugh v. Y & H Corp., 546 U.S. 500,
513 & n.10 (2006), insofar as it suggests the High Court has
embraced any similar bifurcation of subject-matter jurisdiction
in those cases. See Maj. Op. 7. The focus of the cited
discussion in Bell v. Hood is on the difference between a
dismissal for “want of jurisdiction”—a Rule 12(b)(1)
dismissal—and a dismissal “on the merits”—a Rule 12(b)(6)
dismissal. 327 U.S. at 683; see also Land v. Dollar, 330 U.S.
731, 735 n.4 (1947). Indeed, the “immaterial,” “wholly
insubstantial” and “frivolous” exceptions the majority opinion
takes from Bell v. Hood as the template for “A” jurisdictional
facts were themselves problematic to the Court. Id. (“The
accuracy of calling these dismissals jurisdictional has been
questioned.”). As for Arbaugh, in concluding that Title VII’s
15-employee “prerequisite” is non-jurisdictional, the Court
differentiated between jurisdictional and non-jurisdictional facts,
not two types of jurisdictional facts as the majority opinion
 3

today. Any jurisdictional fact, once challenged, may require the
district court to satisfy itself of its jurisdiction. How it does so
should not be the subject of an elaborate proof scheme imposed
on appellate review. See Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1131 (D.C. Cir. 2004) (district
court “retains considerable latitude in devising the procedures it
will follow to ferret out the facts pertinent to jurisdiction”
(quotations omitted)); cf. Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 537 (1995). In my view, the
plaintiff survives a Rule 12(b)(1) dismissal because it alleges that
(1) it owns the Library and the Archive, (2) both of which were
taken by the defendants or their predecessors in office based on
the latters’ intent “ ‘to suppress the practice of Judaism, not for
any bona fide economic, academic, or other recognized
governmental purpose,’ ” Maj. Op. 35 (quoting Chabad Br. 63);
and, further, (3) each defendant asserts ownership of either the
Library or the Archive and they both engage in commercial
activity in the United States. While all of these jurisdictional
facts were traversed by the defendants, the district court
correctly, and without distinguishing between those jurisdictional
facts “independent of the merits” of the plaintiff’s claim and
those “intertwined with the merits of the claim,” Maj. Op. 6–7
(emphasis in original), assured itself of their existence—with the
exceptions of the ownership of the Library and defendant RSL’s
commercial activity in the U.S. vel non, jurisdictional facts that
it either did not reach and/or we today reverse—primarily via
both parties’ submissions supporting/opposing dismissal.
Agudas Chasidei Chabad of United States v. Russian Federation,
466 F. Supp. 2d 6, 24–25 (D.D.C. 2006). “There is no need or
justification, then, for imposing an additional . . . hurdle in the
name of jurisdiction.” Grubart, 513 U.S. at 538.

maintains with its “A” and “B” split.