## Facts

- Emil Alperin, other Holocaust survivors and their heirs, and related organizations (plaintiffs) alleged that the Nazi-installed Ustasha regime in Yugoslavia persecuted Serbs, Jews, Roma, and others; committed genocide and war crimes; and looted victims’ property into the “Ustasha Treasury.”
- In earlier proceedings, the district court dismissed the claims as presenting nonjusticiable political questions.
- The Ninth Circuit previously affirmed dismissal of the human-rights and international-law claims but remanded certain property-recovery claims for further proceedings.
- After remand, plaintiffs filed an amended complaint alleging that after World War II the Order of Friars Minor (a Franciscan religious order headquartered in Rome) aided and abetted the Ustasha regime’s crimes, including conduct tied to the Ustasha Treasury and looted property.
- Plaintiffs invoked federal jurisdiction primarily under the Alien Tort Statute (ATS), seeking to treat the alleged conduct as actionable international-law violations.
- The district court dismissed for lack of subject-matter jurisdiction, reasoning that (1) plaintiffs’ property-recovery claims did not allege violations of international law actionable under the ATS, and their human-rights claims remained barred by the political question doctrine; and (2) diversity jurisdiction was absent because the suit included foreign plaintiffs and a foreign defendant.
- Plaintiffs moved to reopen the judgment to amend the complaint and drop foreign plaintiffs in an effort to create diversity jurisdiction; the district court denied the motion, finding no basis for postjudgment relief and noting plaintiffs’ litigation choice to proceed under the ATS rather than structure the case around diversity.
- Plaintiffs appealed and also asked the Ninth Circuit to dismiss the foreign plaintiffs to cure the diversity problem.

## Issues

1. Whether the amended complaint alleged an international-law violation sufficient to support jurisdiction under the Alien Tort Statute.
2. Whether the human-rights claims were barred as nonjusticiable political questions under the prior Ninth Circuit decision in the same litigation.
3. Whether diversity jurisdiction existed when foreign plaintiffs sued a foreign defendant.
4. Whether the district court abused its discretion in denying plaintiffs’ postjudgment motion to reopen so they could amend and drop foreign plaintiffs, and whether the court of appeals should dismiss those parties to create diversity.

## Decision

- The Ninth Circuit affirmed the district court’s dismissal for lack of subject-matter jurisdiction.
- The court agreed that the ATS did not supply jurisdiction for the property-recovery claims as pleaded because they did not allege a cognizable international-law violation.
- The court agreed that the human-rights and international-law claims remained barred by the political question doctrine in light of the earlier Ninth Circuit disposition.
- The court affirmed that diversity jurisdiction was lacking because foreign parties were present on both sides of the case.
- The court affirmed the denial of the motion to reopen and declined to cure the jurisdictional defect by dismissing foreign plaintiffs on appeal.

## Legal Principles

- The ATS is a jurisdictional statute that requires a well-pleaded, recognized international-law norm; ordinary property-recovery theories, without a qualifying international-law violation, do not confer ATS jurisdiction.
- Under the political question doctrine, claims that require courts to pass on wartime conduct, postwar diplomatic choices, or other matters committed to the political branches may be nonjusticiable; a prior appellate ruling in the same litigation can control that analysis.
- Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity; the presence of foreign plaintiffs and a foreign defendant defeats diversity jurisdiction.
- After final judgment, reopening to amend pleadings is governed by demanding postjudgment standards (including Rules 59 and 60); a party’s attempt to reframe jurisdiction after an adverse judgment, based on earlier tactical choices, may be denied.
- An appellate court has limited discretion to dismiss parties to address jurisdictional defects, but it is not required to do so where jurisdiction is absent and postjudgment relief is not warranted.

## Conclusion

The Ninth Circuit affirmed dismissal because the amended complaint did not establish ATS jurisdiction for the property-recovery claims, the human-rights claims remained nonjusticiable political questions under the earlier appellate decision, and diversity jurisdiction was unavailable given foreign parties on both sides; the court also upheld the refusal to reopen the case to drop foreign plaintiffs and declined to dismiss those parties on appeal to manufacture diversity.


Alperin v. Franciscan Order, 423 F. App'x 678 (2011)