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SUPREME COURT OF THE UNITED STATES
FEDERAL REPUBLIC OF GERMANY, et al., PETITIONERS v. ALAN PHILIPP, et al.
on writ of certiorari to the united states court docket of appeals for the district of columbia circuit
[February 3, 2021]
Chief Justice Roberts brought the opinion of the Court.
The Foreign Sovereign Immunities Act offers that overseas international locations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets forth numerous unique exceptions. One such exception offers that a sovereign does not revel in immunity anyways “wherein rights in property taken in violation of global regulation are in problem.”
28 U. S. C. §1605(a)(three). The query presented is whether or not a rustic’s alleged taking of assets from its very own nationals falls inside this exception.
This case issues several dozen medieval relics and devotional items known as the Welfenschatz. The treasure (“schatz”) of the German Welf dynasty, the portions date returned to the early days of the Holy Roman Empire and occupy a completely unique function in German records and tradition. The series turned into assembled inside Germany’s Brunswick Cathedral over the route of several centuries, earlier than being moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping within the wake of World War I.
During the waning years of the Weimar Republic, a consortium of 3 art companies owned by means of Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick. By 1931, the consortium had offered about half of the gathering’s portions to museums and people in Europe and the USA, which includes many to the Cleveland Museum of Art, wherein they are living these days.
Conditions dealing with the consortium modified dramatically after the collapse of the German financial system and the rise of the Nazi government. After ascending to electricity, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—have become interested by the remainder of the Welfenschatz. The complaint alleges that he employed a combination of political persecution and physical threats to coerce the consortium into promoting the final pieces to Prussia in 1935 for approximately one-0.33 of their price. Two of the consortium participants fled the u . s . a . following the sale, and the 0.33 died in Germany rapidly thereafter.
The United States took ownership of the Welfenschatz inside the path of the profession of Nazi Germany on the stop of the battle, subsequently turning the collection over to the Federal Republic of Germany. For nearly 60 years, the treasure has been maintained with the aid of Stiftung Preussischer Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it's far now displayed at a museum in Berlin. SPK is an instrumentality of the Federal Republic.
Respondents are United States citizens and a citizen of the UK who trace their lineages back to the three contributors of the consortium. The heirs first approached SPK claiming that the sale of the Welfenschatz to the Prussian Government changed into unlawful. SPK conducted its personal investigation of the sale and determined that the transaction occurred at a truthful market charge without coercion.
In 2014, the parties agreed to post the claim to the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property. Germany mounted the Advisory Commission under the Washington Conference Principles on Nazi-Confiscated Art, an initiative spearheaded through the United States to encourage the development of latest mechanisms for resolving Nazi-generation claims. See Brief for United States as Amicus Curiae 4. After listening to from professional witnesses and reviewing documentary evidence, the Commission likewise concluded that the sale had occurred at a truthful rate with out duress.
Disappointed through the complaints in Germany, the heirs filed suit in Federal District Court in Washington, D. C. They delivered numerous common regulation assets claims in opposition to Germany and SPK, seeking $250 million in reimbursement. Petitioners SPK and the Federal Republic of Germany—together Germany—moved to push aside the case. Relevant here, Germany argued that it become immune from healthy due to the fact the heirs’ claims did now not fall in the FSIA’s exception to immunity for “belongings taken in violation of global regulation.” See
28 U. S. C. §1605(a)(three); see also §1603(a) (defining “foreign country” to encompass “an organisation or instrumentality of a foreign nation”). In doing so, Germany reasoned that the purchase of the Welfenschatz couldn't have violated worldwide law due to the fact a sovereign’s taking of its very own nationals’ belongings isn't unlawful below the global regulation of expropriation. The heirs responded that the exception did follow because Germany’s purchase of the Welfenschatz become an act of genocide and the taking consequently violated the worldwide law of genocide.
The District Court denied Germany’s movement, 248 F. Supp. 3d 59, 70–seventy four (DC 2017), and a panel of the D. C. Circuit affirmed, 894 F.3d 406 (2018). The panel agreed with the heirs that the exception for assets taken in violation of international regulation changed into glad due to the fact “genocide perpetrated through a country even against its own nationals is a violation of global regulation.” Id., at 410–411 (quoting Simon v. Republic of Hungary, 812 F.3d 127, a hundred forty five (CADC 2016); changes disregarded). The D. C. Circuit declined Germany’s request for en banc evaluation. 925 F.3d 1349 (2019) (in step with curiam).
Judge Katsas dissented from the denial of rehearing en banc. In his view, the majority’s analysis erroneously “ma[de] the district court docket sit as a warfare crimes tribunal to adjudicate claims of genocide,” at the same time as “clear[ing] the manner for a extensive range of litigation towards overseas sovereigns for public acts dedicated inside their personal territories.” Id., at 1350.
We granted certiorari. 591 U. S. ___ (2020).
Enacted in 1976, the Foreign Sovereign Immunities Act elements the ground policies for “acquiring jurisdiction over a foreign nation in the courts of this u . s . a ..” Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 443 (1989). The Act creates a baseline presumption of immunity from suit. §1604. “[U]nless a specific exception applies, a federal court lacks concern-depend jurisdiction over a declare against a overseas kingdom.” Saudi Arabia v. Nelson,
507 U.S. 349, 355 (1993).
The heirs contend that their claims fall in the exception for “assets taken in violation of global regulation,” §1605(a)(three), due to the fact the coerced sale of the Welfenschatz, their assets, constituted an act of genocide, and genocide is a violation of international human rights regulation. Germany argues that the exception is inapplicable because the applicable global law is the global law of belongings—not the law of genocide—and beneath the worldwide law of belongings a overseas sovereign’s taking of its own nationals’ assets remains a home affair. This “domestic takings rule” assumes that what a rustic does to property belonging to its very own residents within its personal borders isn't the challenge of international regulation. See Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S. ___, ___ (2017) (slip op., at 10) (bringing up Restatement (Third) of Foreign Relations Law of the USA §712 (1986) (Restatement (Third))).
Known on the founding as the “law of nations,” what we now talk to as global law typically issues family members amongst sovereign states, no longer relations between states and individuals. See Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 422 (1964) (“The traditional view of global regulation is that it establishes considerable ideas for figuring out whether or not one usa has wronged every other.”).
The home takings rule invoked with the aid of Germany derives from this premise. Historically, a sovereign’s taking of a foreigner’s assets, like every injury of a overseas country wide, implicated the global legal device because it “constituted an damage to the nation of the alien’s nationality.” Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, one hundred ten Harv. L. Rev. 815, 831, n. 106 (1997); see S. Friedman, Expropriation in International Law five, 139 (1953). Such mistreatment become an affront to the sovereign, and “consequently the alien’s kingdom on my own, and no longer the person, should invoke the treatments of worldwide law.” Bradley, supra, at 831, n. 106. A domestic taking via contrast did now not intrude with members of the family among states. See E. de Vattel, 3 The Law of Nations §81, p. 138 (C. Fenwick transl. 1916) (“Even the belongings of individuals, taken as a whole, is to be seemed because the belongings of the Nation with appreciate to other Nations.”); see also United States v. Belmont,
301 U.S. 324, 332 (1937) (“What some other us of a has finished in the way of taking up property of its nationals . . . is not a remember for judicial consideration here.”).
The domestic takings rule has deep roots now not simplest in global regulation however also in United States foreign coverage. Secretary of State Cordell Hull most famously expressed the principle in a 1938 letter to the Mexican Ambassador following that u . s .’s nationalization of American oil fields. The Secretary conceded “the proper of a foreign government to deal with its very own nationals in this fashion if it so desires. This is a matter of domestic subject.” Letter from C. Hull to C. Nájera (July 21, 1938), reprinted in five Foreign Relations of the USA Diplomatic Papers 677 (1956). The United States, however, could not “receive the concept” that “those plans can be carried forward on the fee of our residents.” Ibid.
The home takings rule continued at the same time as worldwide law increasingly more got here to be seen as constraining how states interacted not simply with other states however additionally with individuals, such as their own residents. The United Nations Universal Declaration of Human Rights and Convention on the Prevention of Genocide have become part of a growing frame of human rights regulation that made “how a state treats character people . . . a rely of global subject.” Bradley, supra, at 832 (quoting Restatement (Third), pt. VII, Introductory Note, at one hundred forty four–one hundred forty five). These human rights files were silent, however, with reference to assets rights. See Friedman, supra, at 107. International tribunals consequently continued to hold that international law ruled “confiscation of the property of foreigners,” but “measures taken by using a State with admire to the property of its personal nationals aren't issue to these principles.” Gudmundsson v. Iceland, Appl. No. 511/59, 1960 Y. B. Eur. Conv. on H. R. 394, 423–424 (selection of the European Commission on Human Rights).
Some criticized the treatment of property rights below international law, but they did so at the ground that all sovereign takings have been outside the scope of worldwide law, now not just home takings. In the Nineteen Fifties and Sixties, a developing refrain of newly impartial states, mainly in Latin America, resisted any foreign restraint on their capacity to nationalize property. See Young, The Story of Banco Nacional de Cuba v. Sabbatino, in Federal Courts Stories 422–423 (V. Jackson & J. Resnik eds. 2010). Put differently, states and pupils disagreed over whether international regulation supplied a treatment for a sovereign’s interference with each person’s property rights, no longer whether or not home takings had been out of doors the purview of worldwide regulation. That precept turned into beyond debate.
We confronted this dispute over the life of international regulation constraints on sovereign takings in Sabbatino, wherein we have been asked to determine claims springing up out of Cuba’s nationalization of American sugar hobbies in 1960. 376 U. S., at 403. This Court located that there had been “few if any problems in global regulation today on which opinion appears to be so divided because the limitations on a nation’s strength to expropriate the property of extraterrestrial beings.” Id., at 428 (emphasis brought). Hesitant to delve into this controversy, we instead invoked the act of country doctrine, which prevents United States courts from determining the validity of the public acts of a foreign sovereign. Id., at 436.
Congress did now not applaud the Court’s reticence. Within months of Sabbatino, it exceeded the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964. The Amendment prohibits United States courts from applying the act of country doctrine where a “proper[ ] to assets is declared” based totally upon a “taking . . . by using an act of that kingdom in violation of the principles of worldwide law.”
22 U. S. C. §2370(e)(2). Courts and commentators understood the Amendment to allow adjudication of claims the Sabbatino selection had averted—claims towards foreign international locations for expropriation of American-owned belongings. But nothing within the Amendment supposed to regulate any rule of international law, which includes the domestic takings rule. See F. Palicio y Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (SDNY 1966) (decoding the Hickenlooper Amendment to displace Sabbatino but brushing off the suit at the floor that “confiscations by a kingdom of the assets of its own nationals, irrespective of how flagrant . . . , do now not constitute violations of international regulation”), summarily aff ’d, 375 F.2nd 1011 (CA2 1967); Banco Nacional de Cuba v. Farr, 383 F.second 166, 173–176 (CA2 1967); Restatement (Second) of Foreign Relations Law of america §185 (1965) (Restatement (Second)); Lillich, The Proper Role of Domestic Courts inside the International Legal Order, 11 Va. J. Int’l L. 9, 29, 34 (1970).
Congress used language nearly identical to that of the Second Hickenlooper Amendment 12 years later in crafting the FSIA’s expropriation exception. As stated, it presents that United States courts may additionally exercise jurisdiction over a overseas sovereign in any case “wherein rights in property taken in violation of global law are in difficulty.”
28 U. S. C. §1605(a)(3).
Based on this historic and felony historical past, courts arrived at a “consensus” that the expropriation exception’s “reference to ‘violation of worldwide law’ does now not cover expropriations of property belonging to a rustic’s very own nationals.” Republic of Austria v. Altmann,
541 U.S. 677, 713 (2004) (Breyer, J., concurring).
The heirs urge us to change path. They examine “rights in assets taken in violation of worldwide regulation” no longer as an invocation of the global law governing belongings rights, but as a wide incorporation of any international norm. Focusing on human rights regulation, the heirs depend upon the United Nations Convention on Genocide, which defines genocide as “intentionally inflicting on [a] organization conditions of life calculated to bring about its physical destruction in whole or in element.” Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. nine, 1948, 78 U. N. T. S. 277, 280. According to the heirs, the pressured sale of their ancestors’ artwork constituted an act of genocide due to the fact the confiscation of assets became one of the conditions the Third Reich inflicted on the Jewish populace to bring about their destruction.
We want no longer determine whether or not the sale of the consortium’s belongings became an act of genocide, because the expropriation exception is high-quality examine as referencing the global regulation of expropriation instead of of human rights. We do not appearance to the law of genocide to decide if we've got jurisdiction over the heirs’ commonplace regulation property claims. We appearance to the law of property.
And in 1976, the country of that body of law changed into clear: A “taking of assets” could be “wrongful beneath worldwide law” best where a nation deprived “an alien” of belongings. Restatement (Second) §185; see additionally Permanent Mission of India to United Nations v. City of New York,
551 U.S. 193, 199–two hundred (2007) (noting our regular exercise of decoding the FSIA in line with “global regulation on the time of the FSIA’s enactment” and trying to the cutting-edge Restatement for guidance). As defined above, this rule survived the arrival of cutting-edge human rights law, which includes the United Nations Convention on Genocide. Congress drafted the expropriation exception and its predecessor, the Hickenlooper Amendment, against that legal and ancient backdrop. See Taggart v. Lorenzen, 587 U. S. ___, ___ (2019) (slip op., at 5).
The heirs concede that at the time of the FSIA’s enactment the global regulation of expropriation retained the domestic takings rule. See Restatement (Second) §192. But they argue that Congress captured all of worldwide law within the exception—no longer simply the international law of expropriation—and that different areas of international regulation do not shield a sovereign’s movements in opposition to its personal nationals. In guide of that declaration, they observe that the exception worries “assets taken in violation of international law”—no longer “belongings takings in violation of worldwide law.” Tr. of Oral Arg. 70. This difference among “takings” and “taken,” they are saying, is the difference between incorporating the specific global law governing takings of assets and incorporating worldwide law writ big. Ibid.
We would not place a lot weight on a gerund. The textual content of the expropriation exception as an entire helps Germany’s analyzing. In its entirety the clause provides that United States courts may additionally exercising jurisdiction over a foreign sovereign in any case
“wherein rights in assets taken in violation of international law are in trouble and that assets or any belongings exchanged for such property is gift in the United States in connection with a business hobby carried on in the United States by the overseas kingdom; or that belongings or any property exchanged for such property is owned or operated by means of an business enterprise or instrumentality of the overseas nation and that business enterprise or instrumentality is engaged in a industrial activity inside the United States.”
28 U. S. C. §1605(a)(3).
The exception locations repeated emphasis on property and assets-related rights, even as accidents and acts we'd partner with genocide are drastically lacking. That might be top notch if the provision have been intended to provide relief for atrocities including the Holocaust. A statutory word concerning assets rights maximum sensibly references the global regulation governing assets rights, in place of the law of genocide.
What is more, the heirs’ interpretation of the phrase “taken in violation of international regulation” isn't confined to violations of the law of genocide but extends to any human rights abuse. Their construction could arguably pressure courts themselves to violate global regulation, no longer most effective ignoring the home takings rule but also derogating international regulation’s protection of sovereign immunity for violations of human rights law. As the International Court of Justice these days ruled while thinking about claims added by means of descendants of residents of Nazi-occupied nations, “a State isn't disadvantaged of immunity by purpose of the reality that it's miles accused of serious violations of international human rights regulation.” Jurisdictional Immunities of the State (Germany v. Italy), 2012 I. C. J. ninety nine, 139 (Judgt. of Feb. three); see additionally Bradley & Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 Green Bag 2d 9, 21 (2009). Respondents might overturn that rule on every occasion a contravention of international human rights law is observed by way of a taking of property.
Germany’s interpretation of the exception is also extra regular with the FSIA’s explicit intention of codifying the restrictive principle of sovereign immunity. §1602. Under absolutely the or classical theory of sovereign immunity, foreign sovereigns are categorically immune from suit. Altmann, 541 U. S., at 690. Under the restrictive view, via evaluation, immunity extends to a sovereign’s public however no longer its non-public acts. Ibid. Most of the FSIA’s exceptions, such as the exception for “industrial hobby carried on inside the United States,” comport with the overarching framework of the restrictive idea. §1605(a)(2).
It is genuine that the expropriation exception, as it allows the exercising of jurisdiction over a few public acts of expropriation, is going past even the restrictive view. In this way, the exception is particular; no other us of a has followed a similar hindrance on sovereign immunity. Restatement (Fourth) of Foreign Relations Law of the USA §455, Reporters’ Note 15 (2017).
History and context provide an explanation for this nonconformity. As occasions consisting of Secretary Hull’s letter and the Second Hickenlooper Amendment exhibit, the United States has long sought to guard the property of its citizens abroad as a part of a defense of America’s free business enterprise machine. Sabbatino, 376 U. S., at 430.
Given that the FSIA “largely codifies” the restrictive idea, however, we take seriously the Act’s preferred attempt to preserve a dichotomy between non-public and public acts. Nelson, 507 U. S., at 359 (internal quotation marks omitted). It would smash that distinction were we to concern all manner of sovereign public acts to judicial scrutiny beneath the FSIA by using remodeling the expropriation exception into an all-cause jurisdictional hook for adjudicating human rights violations. See Helmerich, 581 U. S., at ___ (slip op., at nine) (rejecting the notion that Congress intended the expropriation exception to operate as a “radical departure” from the “fundamental principles” of the restrictive concept).
Other provisions of the FSIA verify Germany’s position. The heirs’ technique, as an instance, might steer clear of the reticulated boundaries Congress positioned in the FSIA with regard to human rights violations. Where Congress did goal injuries associated with such acts, along with torture or dying, it did so explicitly and with precision. The noncommercial tort exception gives jurisdiction over claims “wherein cash damages are sought towards a overseas state for personal harm or dying, or damage to or lack of belongings,” however best where the relevant conduct “occurr[ed] in the United States.” §1605(a)(five). Similarly, the terrorism exception eliminates sovereign immunity for country sponsors of terrorism but most effective for certain human rights claims, added with the aid of certain victims, towards positive defendants. §§1605A(a), (h).
These regulations would be of little effect if human rights abuses could be packaged as violations of belongings rights and thereby brought in the expropriation exception to sovereign immunity. And there's no cause to assume Congress idea acts of genocide or other human rights violations to be specifically deserving of redress only while accompanied by way of infringement of property rights. We have previously rejected efforts to insert current human rights law into FSIA exceptions ill suitable to the venture. Nelson, 507 U. S., at 361 (commercial pastime exception does now not embody claims that overseas state illegally detained and tortured United States citizen, “but colossal such abuse absolutely may be”). We do so once more today.
We have recognized that “ ‘United States regulation governs regionally however does not rule the sector.’ ” Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108, 115 (2013) (quoting Microsoft Corp. v. AT&T Corp.,
550 U.S. 437, 454 (2007)). We interpret the FSIA as we do other statutes affecting international relations: to avoid, in which possible, “producing friction in our members of the family with [other] international locations and leading a few to reciprocate by means of granting their courts permission to embroil america in high-priced and tough litigation.” Helmerich, 581 U. S., at ___ (slip op., at 12) (inner quotation marks neglected); RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___–___ (2016) (slip op., at 7–8) (deciphering civil Racketeer Influenced and Corrupt Organizations Act “to avoid the international discord which could end result while U. S. regulation is applied to behavior in foreign nations”); Kiobel, 569 U. S., at 116 (deciphering Alien Tort Statute in order now not to “undertake an interpretation of U. S. law that includes foreign policy results not without a doubt supposed by means of the political branches”).
As a Nation, we might be surprised—and can even initiate reciprocal movement—if a court docket in Germany adjudicated claims by Americans that they had been entitled to masses of hundreds of thousands of dollars because of human rights violations dedicated by using the US Government years ago. There is not any cause to anticipate that Germany’s reaction might be any unique have been American courts to exercise the jurisdiction claimed in this case.
The heirs offer several counterarguments, but none can triumph over the text, context, and history of the expropriation exception.
First, the heirs depend on the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. The Act amends the FSIA to provide an explanation for that participation in targeted “art exhibition sports” does not qualify as “business interest” in the meaning of the expropriation exception.
28 U. S. C. §1605(h). This rationalization answered to selections of federal courts protecting to the opposite, see, e.g., Malewicz v. Amsterdam, 362 F. Supp. second 298, 313–315 (DC 2005), and permits overseas states to mortgage artwork to American museums with out worry that the work’s presence in the United States will problem them to litigation right here. The provision, but, does now not apply to claims added in opposition to Germany bobbing up out of the length from January 1933 through May 1945. §§1605(h)(2), (3). According to the heirs, this clarification of the expropriation exception indicates that Congress predicted Nazi-technology claims may be adjudicated through manner of that exception.
We believe the heirs, but most effective to a limited quantity. Claims regarding Nazi-technology artwork takings could be brought beneath the expropriation exception in which the claims involve the taking of a foreign countrywide’s belongings. See, e.g., Altmann, 541 U. S., at 680–682 (claim concerning Austrian taking of Czechoslovakian national’s artwork added under the expropriation exception). As for the heirs’ proposal that the Clarification Act demonstrates that Congress intended to abrogate immunity for any Nazi-generation claim, however, we do not interpret Congress’s effort to maintain sovereign immunity in a slender, particularized context—art suggests—as assisting the broad elimination of sovereign immunity throughout all areas of regulation. The Clarification Act did not purport to amend the crucial word right here—“taken in violation of global law”—and we will now not construe it to do so.
The heirs additionally rely upon different statutes aimed toward promoting restitution to the sufferers of the Holocaust. The Acts include the Holocaust Victims Redress Act of 1998,
15; the Holocaust Expropriated Art Recovery Act of 2016 (HEAR Act),
1524; and the Justice for Uncompensated Survivors Today (JUST) Act of 2017, Pub. L. a hundred and fifteen–171,
1288. These laws, the heirs propose, show Congress’s choice for American courts to pay attention disputes about Holocaust-era property claims.
The statutes do promote restitution for the sufferers of the Holocaust, but they usually inspire redressing those accidents outside of public courtroom structures. The HEAR Act, for example, states that “the usage of alternative dispute decision” mechanisms will “yield just and truthful resolutions in a extra efficient and predictable manner” than litigation in courtroom. §2(eight),
1525. Germany has followed just such an alternative mechanism, the Advisory Commission, and the heirs availed themselves of that possibility to solve their claims. Ibid. See additionally Brief for Petitioners 5 (“[T]he German government has provided roughly $100 billion (in nowadays’s greenbacks) to compensate Holocaust survivors and other sufferers of the Nazi generation.”).
These laws do no longer talk to sovereign immunity. That is the province of the FSIA, which presents the cautiously built framework necessary for addressing an issue of such worldwide problem. The heirs have no longer proven that the FSIA lets in them to carry their claims against Germany. We cannot allow them to bypass its design.
We hold that the word “rights in property taken in violation of global law,” as used inside the FSIA’s expropriation exception, refers to violations of the worldwide law of expropriation and thereby includes the domestic takings rule.
We do not address Germany’s argument that the District Court become obligated to abstain from deciding the case on international comity grounds. Nor will we take into account an opportunity argument referred to through the heirs: that the sale of the Welfenschatz isn't always challenge to the home takings rule due to the fact the consortium participants were not German nationals at the time of the transaction. See Brief for Respondents 27–28; however see Brief for Petitioners 19, n. 7 (claiming that the heirs forfeited this argument). The Court of Appeals should direct the District Court to don't forget this argument, together with whether or not it become safely preserved under.
The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for in addition proceedings regular with this opinion.
It is so ordered.
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