Case: 08-16060 02/23/2010 Page: 1 of 8 ID: 7241257 DktEntry: 68

No. 08-16060

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
____________________

EMIL ALPERIN, et al.,

Plaintiffs-Appellants,

v.

VATICAN BANK, aka “INSTITUTE OF RELIGIOUS WORKS” or

“ISTITUTO PER LE OPERE DI RELIGIONE” (IOR); et al.,

Defendant-Appellee.
__________________

Appeal from Final Judgment of the United States District Court,

Northern District of California, Honorable Maxine M. Chesney
District Court No. CV-99-04941 MMC
__________________

PLAINTIFFS’ MOTION FOR RECONSIDERATION

CIRCUIT RULE 27-10(a)(1)
__________________
THOMAS EASTON WINDLE TURLEY ANTHONY D’AMATO
CSB #109218 TX.SB #20304000 NY #4039671
967 Sunset Dr Turley Law Firm PROFESSOR OF LAW
Springfield, Oregon 97477 1000 Turley Law Center NORTHWESTERN UNIVERSITY
Tel/Fax: 541-746-1335 6440 N. Central Expressway SCHOOL OF LAW
easton3535@gmail.com Dallas, Texas 75206 357 East Chicago Avenue,
Tel: 214-691-4025 Chicago, Illinois 60611
JONATHAN H. LEVY Fax: 214-361-5802 Tel: 312- 503-8474
CSB #158032 turley@wturley.com Fax: 312- 587-9969
37 Royale Pointe Dr a-damato@northwestern.edu
Hilton Head, South Carolina 29926
Tel/Fax: 202-318-2406
jonlevy@hargray.com
Attorneys for Plaintiffs-Appellants
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PLAINTIFFS’ MOTION FOR RECONSIDERATION

UNDER CIRCUIT RULE 27(10)(A)(1)

Plaintiffs respectfully request under Circuit Rule 27 that this Panel

reconsider its termination order of February 10, 2010, because the order is

predicated upon substantive errors of law and fact.

The Panel addressed the question whether the district court has or lacks

subject-matter jurisdiction. If an Article III court has subject-matter jurisdiction,

then (assuming jurisdiction over persons and things) it has a duty to hear the case.

Objections to subject-matter jurisdiction may be raised at any time, including sua

sponte by the court. The parties may neither fabricate nor waive subject-matter

jurisdiction, whether individually or by mutual consent. Artful pleading cannot

create subject-matter jurisdiction, nor is the court confined by the pleadings: any

relevant facts that are external to the pleadings and brought to the court’s attention

may be considered. In short, jurisdiction over the subject matter either exists or it

does not exist.

These considerations do not relieve plaintiffs from pleading the existence of

subject-matter jurisdiction. For example, in the case the Panel cited, Phaneuf v.

Republic of Indonesia, 106 F.3d 302, 307 (9th Cir. 1997), the appellate court found

that the defendant’s plea of sovereign immunity shifted the burden of production to
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the plaintiff to offer evidence that an exception applies. Plaintiff argued that the

“commercial activity” exception to the Foreign Sovereign Immunities Act applied

because of the defendant’s issuance of sovereign debt. The court thereupon held

that the issuance of sovereign debt is indeed a commercial act, and thus there was a

prima facie showing of subject-matter jurisdiction. In the event, the case was

remanded to the district court to evaluate an affirmative defense that the sovereign

debt was issued without the defendant’s actual authority.

Similarly, in the present case the Foreign Sovereign Immunities Act

determines the existence or non-existence of subject-matter jurisdiction. The

applicable section of the F.S.I.A., quoted by the Panel, is:

A foreign state shall not be immune from the jurisdiction of the courts
of the United 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).

The Panel chooses to examine the Complaint with strict scrutiny instead of

just as a guide to see whether subject-matter jurisdiction exists in fact. Thus if the

Complaint contains an infelicitous word or expression, the Panel sees it as an

excuse to defeat subject-matter jurisdiction entirely and thereby relieve itself of its

Article III obligation to give the plaintiffs their day in court. But even assuming
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strict scrutiny, every single point the Panel makes in the course of its examination

of the Complaint is legally and factually incorrect.

For example, the Panel finds no specifically alleged nexus between the

property confiscated from the plaintiffs by the Ustasha regime, and the property

converted and deposited with the defendant Vatican Bank. The property at issue

consists of valuable artwork, numismatic rarities, gems, jewelry, currency, gold,

and silver. (4AC 41) Part of the property was auctioned or sold first and the

proceeds sent to the Ustasha Treasury. (4AC 42). Other valuables were kept by the

Treasury. All the property of the twenty-five individual plaintiffs was comingled

with the property of some 600,000 Serbs, Jews, Roma, and Ukranian persons

persecuted and murdered by the Ustasha in Croatia during the war years. When the

war was in its last stages in 1945, the Utasha, fearing that everything would be

taken by the victorious Allied Powers, began transporting the property to the

Vatican Bank. Assuming that each of the 600,000 victims had only 10 pieces of

property, then the 10 pieces by the 25 individual plaintiffs would amount to 250

items comingled with a total of 6,000,000 items (60,000 multiplied by 10). A

“significant portion” of the illegally expropriated property can be assumed to be at

least half of the total, or 3,000,000 items. Then the mathematical probability of

sending 3,000,000 items to the Vatican Bank which did not contain any of the

plaintiffs’ 250 items is one chance out of

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58,726,280,659,948,666,753,771,754,907,668,409,286,105,635,143,120,275,902,

562,332 tries, which is many trillion trillion times more improbable than two

persons having the same DNA. But even assuming that this probability is not low

enough to meet the Panel’s evidentiary standard, the fact that this is a class action

including all 600,000 victims and their heirs and next-of-kin means that there is

zero probability that no item of property confiscated from the victims in fact

reached the Vatican Bank.

However, the Panel interprets the applicable section of the FSIA to require

that the expropriated property or property exchanged for the expropriated property

is currently owned or operated by the defendant Bank. This interpretation could in

some situations eviscerate the takings provision of the FSIA. For example, the

owner of a painting that had been stolen sees it on display in a foreign state’s art

gallery. The gallery is an instrumentality of the state. She talks with the museum

guards about it. The guards, realizing that she might sue in the United States to

recover the painting, notify the museum officials who quickly send the painting out

on tour as part of an international lending program for the display of masterpieces.

When the lawsuit is filed, the art gallery moves to have it dismissed citing the

Panel’s theory—that the painting is not currently in an instrumentality of the

government.

But assuming that the victims’ property or property exchanged for their
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property must physically be currently in the instrumentality, visual proof can be

found in comparing the few offices, typewriters, and signs on doors that

constituted the Vatican Bank in 1942 with the bank’s magnificent building of

today. What transformed the bank was nothing other than the massive infusion of

cash and valuables sent by the Ustasha Treasury to the Vatican at the end of World

War Two:

THE VATICAN BANK

It can be maintained with assurance that at least some of the bricks and mortar, if

not all, were purchased from the proceeds of the property confiscated from 600,000

victims of the Ustasha genocide. The bricks and mortar are retained by the Bank

and remain in place currently for all to see.

But even assuming that none of the victims’ property is owned by, or forms

a part of the structure of, the Vatican Bank, 28 U.S.C. § 1605(a)(3) refers to

property “owned or operated” by the instrumentality. The Vatican Bank has been
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operating on the victims’ property ever since it arrived—lending it out, then

lending out its profits on the loans, then lending out its profits on the profits. The

Bank grew into the large instrumentality it is today by operating on money. The

court below noted that the Vatican Bank’ mission is “to provide for the custody

and administration of personal and real property transferred or entrusted” to it, and

with “managing economic assets committed to it.” (Order, at para. 4 and footnote

2, Doc.194, 01/03/2003). In short, the Vatican Bank operates on money. It is the

financial arm of the Holy See in charge of operating on all monetary transactions.

It does so currently as well as at all times in its past. It operates on the victims’

property or property in exchange for the victims’ property.

The Vatican Bank and all its activities and operations today, all owned by

the Holy See, stands in monumental disobedience of the Lord’s words quoted in

Matt. 22:21 “Render unto Caesar the things which are Caesar’s, and unto God the

things that are God’s.”

WHEREFORE, plaintiffs respectfully request this Panel to remand this case

so that the district court may proceed to adjudicate its merits.

DATED: February 23, 2010. Respectfully submitted,

Anthony D’Amato
s/ THOMAS EASTON
WINDLE TURLEY
JONATHAN LEVY
Attorneys for Appellants’ Alperin et al.
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APPELLANT. P. 27

AND CIRCUIT RULE 27-1 FOR CASE NUMBER NO. 08-16060

I certify that: Pursuant to Fed. R. Appellant. P. 27 and Ninth Circuit Rule

27-1, the attached APPELLANTS’ PETITION FOR RECONSIDERATION
CIRCUIT RULE 27-10(a)(1) is proportionately spaced, has a typeface of 14
points or more and is less than 15 pages.
Dated: February 23, 2010. Respectfully submitted,

s/ THOMAS EASTON
WINDLE TURLEY
JONATHAN LEVY
Attorneys for Appellants’ Alperin et al.

CERTIFICATE OF SERVICE

When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that on February 23, 2010, I electronically filed the foregoing

APPELLANTS’ PETITION FOR RECONSIDERATION

CIRCUIT RULE 27-10(a)(1)

with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

Signature s/ THOMAS EASTON, Esq.