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After a fellow federal judge dismissed her $1 billion Holocaust suit against two German banks, Miami U.S. District Judge Ursula Ungaro-Benages is taking her case to the 11th Circuit Court of Appeals in Atlanta. But last week, in a through-the-looking-glass twist, Ungaro-Benages filed court papers “suggesting” to the 17 active and senior judges on the appeals court that they should disqualify themselves from hearing her appeal. Ungaro-Benages sued Deutsche Bank AG and Dresdner Bank AG in 2001 for allegedly conspiring with the Nazis before World War II to steal her family’s heavy construction equipment empire. In March, U.S. District Judge William Terrell Hodges of Ocala, Fla., dismissed the suit as a “non-justiciable political question.” The defendant banks — now going after Ungaro-Benages to recover $58,000 they’ve spent to defend themselves — might have been expected to ask the judges to step aside. After all, Ungaro-Benages serves occasionally as a visiting panel judge on the 11th Circuit, and sits on its policymaking committees. “The public’s perception of the integrity of the system might reasonably be questioned if Judge Ungaro-Benages’ personal claims were decided by the circuit court in which she serves as a federal judge,” Fort Lauderdale, Fla., attorneys Bruce S. Rogow and Beverly A. Pohl wrote in court filings on the judge’s behalf. But lawyers for the banks have taken the opposite tack. In a written reply, they express frosty “surprise” at Ungaro-Benages’ argument and point out that she chose the venue and that their clients “have no reason to doubt the impartiality” of any 11th Circuit judge. “It was perfectly obvious from the outset that any appeal … would be heard by judges of this court and for all these reasons Ms. Ungaro-Benages’ suggestion now rings hollow,” defense lead counsel Jeffrey Barist and co-counsel Alan S. Fine wrote in their reply. Barist is a partner with Milbank, Tweed, Hadley & McCloy in New York. Fine is a partner with Fine & Martinez in Coral Gables, Fla. Neither attorney would comment about the case. So, what’s going on? Is the court’s integrity the sole concern of Ungaro-Benages? Is she also shopping for a less conservative, more receptive forum for her arguments? “There’s no subtext on our part,” Rogow said. “But in a perverse kind of way I think the other side is forum shopping to keep it here … they’re trying to stay in a forum that they think would be receptive to them.” More clear is what would happen in the event of an extraordinary en banc recusal: Chief Justice William Rehnquist would be obliged to step in and appoint a three-judge panel from another circuit outside Florida, Georgia and Alabama to hear the appeal. At issue on appeal is a final order of summary judgment in favor of the banks issued last March by Judge Hodges. Hodges was appointed to the case by former 11th Circuit Chief Judge R. Lanier Anderson after the entire federal bench in South Florida voluntarily stepped aside. Ungaro-Benages wants a jury to hear her allegations that Deutsche Bank, the world’s third largest bank, and Dresdner Bank, the world’s 19th largest bank, conspired with the Nazis to “aryanize” her family’s mining equipment manufacturing business, Orenstein & Koppel. But the Justice Department intervened to block the lawsuit, arguing that a German foundation set up by international agreement is the exclusive forum for resolving Holocaust-era claims against German companies. Dismissal would be “in the foreign policy interests of the United States,” the government said. Miami lawyers Lewis N. Brown and Dyanne E. Feinberg, who represent Ungaro-Benages, challenged President Clinton’s authority to enter into the agreement with Germany that established the foundation and compelled the government to intervene in U.S. court cases to advise judges about its foreign policy interests. Among other things, the lawyers argued the agreement amounted to an unconstitutional “taking or extinguishment” of the judge’s property claim. Hodges disagreed. He said the U.S. expressed no position on the merits of Ungaro-Benages’ claim, disavowed that that was its purpose, and merely informed the court of its position that it would serve U.S. foreign policy interests to dismiss the case “if there is any basis in law” to justify it. Deutsch and Dresdner banks sought dismissal on a variety of grounds, most compellingly by arguing that the complaint presented a political question that was out of bounds for the courts. Hodges noted the Supreme Court “has long recognized the existence of claims or issues that present political questions” that should, under the separation of powers, be left to the executive and legislative branches to decide. And the judge cited several recent district court decisions regarding the “political question doctrine” from around the country “that are precisely on point.” In particular, Hodges quoted a 2002 opinion by U.S. District Judge William G. Bassler of Newark, N.J.: “No amount of money could ever restore life to the tens of millions whose lives were taken, or compensate the millions of survivors whose lives were destroyed. This court must dismiss the plaintiff’s claims, but not because he is undeserving of relief … [but] because the magnitude of World War II has placed claims such as his beyond the province of this court, and into the political realm.” In his opinion, Hodges added: “With the same sentiments, I too conclude that this court must dismiss the plaintiffs’ claims under the non-justiciable political question doctrine.” Ungaro-Benages appealed. In the meantime, a second case brought last year by the judge and her brother, North Carolina physician Peter Ungaro, against two construction equipment manufacturers — one American and one Dutch — continues before Judge Bassler. The case was filed in South Florida, but in February was transferred to the U.S. Judicial Panel on Multidistrict Litigation, which assigned it to Bassler. The suit, demanding tens of millions in damages, alleged those companies purchased much of Orenstein & Koppel, the family’s former business, in 1998 even though they knew or should have known that O&K “had been stolen from its rightful owners during the Nazi era.” Terex Corp of Westport, Conn., paid $168 million for O&K Mining. Nine months later, Dutch giant CNH Global N.V. purchased 75.1 percent of the rest of O&K from Fried.Krupp AG Hoesch-Krupp AG — a direct corporate descendent of another family-run company that was Adolf Hitler’s principal armament and munitions supplier. In April, Ungaro-Benages voluntarily dismissed Terex as a defendant. Attorney Brown declined to say why.

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