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Rejecting the view of the Bush administration and several foreign governments, the Supreme Court ruled June 7 that federal law allows Americans to sue other nations in U.S. courts for long-ago war crimes and other offenses. By a 6-3 vote, the Court gave the green light to Maria Altmann’s suit against the Austrian government to recover valuable paintings owned by her uncle that were expropriated after World War II. Justice John Paul Stevens, writing for the majority in Republic of Austria v. Altmann, No. 03-13, said the Foreign Sovereign Immunities Act, which allows for certain civil suits against foreign governments, applies to conduct that occurred before the law’s passage in 1976. But Stevens emphasized the narrowness of the ruling, noting that the United States and foreign governments will still be able to argue in such cases that sovereign immunity should apply under other doctrines, or that the suits should fail because of statutes of limitations or treaty obligations. “Nothing in our holding prevents the State Department from filing statements of interest suggesting the courts decline to exercise jurisdiction in particular cases implicating foreign sovereign immunity,” wrote Stevens. But in dissent, Justice Anthony Kennedy warned that the decision “injects great prospective uncertainty into our relations with foreign sovereigns.” Kennedy, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, said traditional presumptions against the retroactivity of new laws should have prevailed. Scott Cooper of the New York firm Proskauer Rose, who represented Austria in the case, says, “There’s no question that we are disappointed in the outcome.” But, he adds, “the Court majority plainly does not intend that this decision result in a lot of other cases.” The Altmann case drew wide interest not just because of international concern — briefs were filed by Mexico and Japan on the side of Austria — but also because of Altmann’s personal quest for the six Gustav Klimt paintings valued at more than $150 million. An Austrian journalist discovered evidence in 1998 that the paintings and other works at the Austrian Gallery, Austria’s national museum, had been seized by the Nazis or expropriated by Austria after World War II. The paintings sought by Altmann had hung in the Vienna home of her uncle. She won her case at the district court level and before the U.S. Court of Appeals for the 9th Circuit. In the majority opinion, Stevens reviewed Altmann’s saga as well as years of the Court’s retroactivity doctrine, concluding that there is “clear evidence that Congress intended the act to apply to preenactment conduct.” Emory University law professor David Bederman says the ruling may have more impact on the issue of retroactivity of federal laws than on international litigation. Bederman, who wrote an amicus brief in the case on behalf of Jewish legal organizations, says that a recent “cottage industry” of claims against Germany and Japan for World War II-era conduct had mostly been thwarted by existing treaties and other legal impediments — and would not be revived by Monday’s ruling. “I don’t see any significant impact on the volume of cases” resulting from the Court’s decision, Bederman says. But some cases are still pending — one case filed by Holocaust survivors against French railroads, for example, and a suit by women claiming they had been enslaved by Japan — and may be affected by the decision. The decision was a relatively rare instance in which the Supreme Court upheld a 9th Circuit decision. It was balanced by another ruling June 7 that was truer to form, in which the justices struck down a 9th Circuit decision involving Mexican trucks and the North American Free Trade Agreement (NAFTA). The Court in Department of Transportation v. Public Citizen, No. 03-358, ruled that the government did not have to file an anti-environmental impact statement before allowing Mexican trucks to resume operations in the United States. Congress in 1982 restricted the access of Mexican trucks to U.S. markets, but as part of NAFTA, the government agreed to phase out the ban. President Bill Clinton, responding to environmental and safety concerns, was slow to lift the ban on Mexican trucks. President George W. Bush lifted the moratorium in 2002, but environmental and labor groups challenged the action in court. They argued that the Federal Motor Carrier Safety Administration (FMCSA), in promulgating new rules allowing the Mexican trucks to enter the country, should have conducted an environmental impact statement. But the high court ruled that environmental laws should not be an obstacle to Bush’s decision to end the moratorium. Justice Clarence Thomas, writing for all nine justices, said that since the FMCSA was not responsible for the moratorium in the first place, it was not obligated to assess the environmental impact of ending it. Thomas’ reading of the opinion provided a rare light moment at the Court. As he plowed through the numerous acronyms of agencies and statutes involved in the case, Thomas paused and said, “By the way, there will be a quiz on all the acronyms.”

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