US-Class Actions: Austria files petition for certiorari with US Supreme Court
Washington/Vienna, 29 September 2003 - In the "Whiteman case", one of two still pending US class actions concerning Nazi-era compensation claims against Austria and Austrian companies, Austria has today filed a Petition for Writ of Certiorari with the US Supreme Court in Washington, D.C. The petition was filed against a decision of the US Court of Appeals for the Second Circuit of 6 August 2003. In this decision the Court of Appeals had allowed Austria's appeal and vacated the order of the District Court, but had remanded the case to the District Court (Judge Kram) for further factual inquiries on the issue of State immunity.
No delay in pending proceedings
The petition for certiorari to the Supreme Court will not cause any additional delay in the pending proceedings. In the interest of the elderly Nazi victims Austria is waiving its right to file a motion to stay the mandate and, in addition to the Supreme Court proceedings, will also continue parallel proceedings before Judge Kram (dual track approach). "We have instructed our US lawyers to continue the proceedings at full speed on both tracks," said Ambassador Hans Winkler, the Legal Adviser at the Austrian Ministry for Foreign Affairs. "Our primary goal is to have the action dismissed as soon as possible on one of the two tracks so that the General Settlement Fund will finally be able to start making payments to the victims. Our petition to the Supreme Court is in no way intended to 'protract the proceedings'. On the contrary: this is the only way of clarifying the fundamental issue of State immunity as swiftly as possible."
For this reason, a so-called "Status Conference" was already called on 17 September 2003 before Judge Kram at the request of Austria and with the purpose of fixing the further time schedule for the District Court proceedings. A US Supreme Court decision as to whether the petition will be accepted is expected by the end of the year at the latest.
Issue of State immunity of fundamental importance
The basic issue at stake is whether it is at all permissible to bring action against Austria in US courts in view of Austria's State immunity, which Austria asserts like any other State in the world. In her Order of 9 October 2002 Judge Kram had refused to decide the issue of whether absolute immunity applied for Austria with regard to activities prior to 1952. Instead, she ordered discovery regarding the exceptions under the Foreign Sovereign Immunities Act (FSIA). As the Court of Appeals again failed to decide this issue, Austria has now petitioned the Supreme Court. Under the Washington Agreement of 17 January 2001, the US government is obligated to support Austria's State immunity.
The clarification of the issue of retroactivity of the FSIA with respect to activities prior to 1952 is of fundamental importance for the international community above and beyond this specific case. This issue of law will be decisive for the outcome of other actions pending in US courts, as against Austria in the "Altmann/Bloch-Bauer case" (Klimt paintings in the Belvedere) as well as Japan, Poland and the French National Railroads. In all these cases similar petitions for certiorari have been or will be filed with the Supreme Court. However, the US Supreme Court is not obligated to accept every petition and actually grants certiorari in only very few cases. However, the larger the number of States filing a petition with the Supreme Court on the same issue of law, the greater the chances are that the Court will grant certiorari at least as to one of the petitions.