Federal District Court Opinions

Plaintiff, v. RUSSIAN FEDERATION, a foreign state, et al.,
Defendants. Civ. Action No. 05-01548 (RCL). United States
District Court, D. Columbia. December 4, 2006


ROYCE LAMBERTH, District Judge

Upon consideration of the defendants’ motion [Cal. 13] to
dismiss, the plaintiff’s opposition thereto, the
defendants’ reply, the parties’ supplemental briefs, and
the entire record herein, it is, for the reasons stated in
the accompanying Memorandum Opinion, hereby

ORDERED that the defendants’ motion [Cal. 13] to dismiss is
GRANTED as to those claims in the Complaint regarding the
Library and DENIED as to those claims regarding the
Archive, as the terms “Library” and “Complaint” are defined
in paragraph 11 of the Complaint and used throughout the
accompanying Memorandum Opinion. Going forth, this Court
will construe the term “Collection” in the Complaint to
refer solely to the Archive.



The plaintiff, Agudas Chasidei Chabad of United States
(“Chabad”), is a non-profit religious corporation
incorporated under the laws of the State of New York. On
November 9, 2004, Chabad commenced this action in the
United States District Court for the Central District of
California against the Russian Federation and several
Russian[fn1] state agencies (collectively
“defendants”).[fn2] Chabad alleges that the defendants
violated international law by illegally taking and
continuing to hold an invaluable collection of Jewish
religious books and manuscripts, a collection that Chabad
claims to rightfully own. Chabad seeks declaratory and
injunctive relief mandating the return of the collection
and damages incurred because of the defendants’ violation
of international law. The defendants moved to dismiss for
lack of jurisdiction under the Foreign Page 2 Sovereign
Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et
seq., under the act of state doctrine, and under the
doctrine of forum non conveniens.

On July 14, 2005, the U.S. District Court for the Central
District of California transferred the present case to this
Court pursuant to 28 U.S.C. § 1406(a), declining to
rule on the remaining issues raised in the motion to
dismiss. (Order [Cal. 56][fn3] to Transfer Action.)
Adhering to this Court’s Order [2] of November 23, 3005,
the parties filed supplemental briefs to address legal
precedent in the District of Columbia Circuit. Now before
this Court are: the defendants’ motion [Cal. 13] to
dismiss, the plaintiff’s opposition [Cal. 45] thereto, the
defendants’ reply [Cal. 46], and the parties’ supplemental
briefs [14; 15]. This Court heard oral argument on August
30, 2006. Upon consideration of the parties’ filings and
oral arguments, the applicable law, and the entire record
herein, this Court concludes that it has jurisdiction over
some, but not all, of Chabad’s claims. Therefore, and in
accordance with this Memorandum Opinion, this Court shall
grant in part and deny in part the defendants’ motion to


Long before Chabad was incorporated as a non-profit
corporation under the laws of the State of New York, it was
an organization of Jewish religious communities located
worldwide, with origins in the Russian Empire. The United
States District Court for the Eastern District of New York
had the occasion to describe the history of Chasidic
religious thought and of Chabad Chasidism, see Agudas
Chasidei Chabad of United States v. Gourary, 650 F. Supp.
1463, 1464 (E.D.N.Y. 1987), aff’d, 833 F.2d 431 (2d Cir.
1987), which is useful for a fuller understanding of the
issues before this Court: Page 3

Chasidism, the movement of Chasidim (literally, the
“righteous”), was founded in the mid-18th Century in
Eastern Europe by Rabbi Israel ben Eliezer, known as the
Baal Shem Tov (“Master of the Good Name”). The teachings of
the Baal Shem Tov emphasized the presence of God in all
things, including the most mundane. The movement was in its
origin intensely community oriented and centered on
leaders, generally disciples of the Baal Shem Tov, who
served as mediators between the Chasid, God and the society
outside the community. The movement divided itself into
several groups centered on individual leaders and local
communities, one of which was Chabad Chasidism, which
became known as Lubavitch Chasidism after the town in
Russia in which the movement was centered in its early

Id. at 1464 n. 1 (emphasis added).

Rabbi Schneersohn . . . was until his death the sixth in a
line of rabbis who led a movement of Orthodox Jews known as
Chabad Chasidism. Chabad is an acronym for the Hebrew words
“cochma,” “bina” and “daas,” meaning wisdom, knowledge and
understanding. As its name suggests, Chabad Chasidism has
been considered as placing a greater emphasis on the
intellect in the study of the Torah and the Kabbale than is
the norm in Chasidism.

Chabad Chasidism was formed in 1775 by Rabbi Schneur
Zalman, considered the first Lubavitcher Rebbe and known as
the Alter Rebbe. The Alter Rebbe was a disciple of the
successor of the Baal Shem Tov. The founder’s son and
successor, Rabbi Dov Baer, who died in 1827 and was known
as the Mittler Rebbe, settled in the Russian town of
Lubavich and, hence, gave the movement its present name.
The third leader of the group was the son-in-law of Dov
Baer and the son of the daughter of Schneur Zalman. This
Rebbe, known as the Tzemach Tzedek, after the title of his
major written work, was Rabbi Menahem Mendel, who died in
1866. The fourth Lubavitcher Rebbe was the youngest son of
Menahem Mendel, Rabbi Samuel Schneersohn, known as the
Maharash. He was succeeded by his son, [the Fifth Rebbe]
Rabbi Shalom Dov Baer, known as the Rashab, who died in
1920. The sixth Rebbe . . . was the son of Rabbi Shalom Dov
Baer and succeeded his father on his father’s death.

Id. at 1464 (emphasis added). The court noted that the
“family relationship between the . . . succeeding
Lubavitcher Rebbes may explain why . . . the distinction
between property of the Page 4 religious institutions of
Chabad Chasidism and the personal property of the Rebbe is
not a distinction which has had to be made with any
regularity in the movement’s history.” Id.

At issue in this case are two distinct sets of property:
the “Library” and the “Archive.”[fn4] The Library, the
origins of which date back to 1772, consists of more than
12,000 books and 381 manuscripts. (Id. § 11(a).) It
“was established, maintained and augmented by the first
Five Chabad Rebbes. . . .” (Id. § 11(a).) The
Archive is comprised of over 25,000 pages of Chabad Rebbes’
handwritten teachings, correspondence, and other records.
(Id. § 11(b).) The contents of the Archive passed
down from Rebbe to Rebbe, and the Gourary court quoted
testimony exemplifying its significance:

[T]he ksovim that are original manuscripts or manuscripts
used by the Rebbe himself, assume a sanctity about them,
that they are kind of the essential legacy. I would compare
it to the crown jewels. It’s something concrete that is
passed on in a symbolic way, and in a way incorporates in
itself both the sanctity, the very presence, the very
personality of the Rebbe himself.

650 F. Supp. at 1465. The term “Collection,” as used by the
parties and in this memorandum, is primarily a term of
convenience and refers to both the Library and the Archive.

In 1915, the Fifth Rebbe, Rabbi Shalom Dov Baer, fleeing
Lubavitch from the advancing German army, took some books
and manuscripts from the Library with him and sent the rest
to be stored in a private warehouse in Moscow. (Compl.
§ 13; Defs.’ Request [Cal. 18] for Judicial Notice
in Support Mot. Dismiss Ex. 1 [hereinafter “Defs.’ RJN”] at
32, 41.) The upheavals associated with the Bolshevik
Revolution of 1917 and the Russian Civil War prevented the
Fifth Page 5 Rebbe from reclaiming the Library during that
time. (Compl. § 13; Defs.’ RJN 32, 41.) In early
1920, the Soviet Department of Scientific Libraries
(“SDSL”) moved the Library to a state facility. (Opp’n
[Cal. 45] Mot. Dismiss 4; Compl. § 14; Defs.’ RJN
32-43.) The Fifth Rebbe passed away in 1920 and his son,
Rabbi Joseph Isaac Schneersohn, succeeded him as the Sixth
Rebbe. (Opp’n Mot. Dismiss 4.) In 1921, the SDSL approved
the return of the Library to the Sixth Rebbe, who, however,
lacked the funds for its return.[fn5] (Id. at 4.) The
Library thus remained in the possession of the SDSL. In
1927, the Soviet authorities arrested the Sixth Rebbe and
sentenced him to death; later that year, bowing to
international pressure, they allowed him to leave Russia
for Latvia, then an independent nation, where he became a
citizen. (Id. at 5; Compl. § 15.) While the Sixth
Rebbe brought the Archive with him to Latvia, the Library
remained behind. (Opp’n Mot. Dismiss 5; Compl. § 7.)
In 1933, the Sixth Rebbe moved from Latvia to Poland,
bringing the Archive with him. (Opp’n Mot. Dismiss 5; Defs’
RJN 57-60)

On September 1, 1939, Nazi Germany attacked Poland; the
Soviet Union invaded Poland shortly thereafter. When the
Sixth Rabbi fled to the United States in 1940, he was
unable to bring the Archive. (Opp’n Mot. Dismiss 6; Compl.
§§ 16-17.) He arrived in the United States on
March 19, 1940. (Compl. § 16). On July 25, 1940,
Agudas Chasidei Chabad was incorporated in New York. (Id.
§ 1.) The Sixth Rebbe made numerous efforts to
retrieve the contents of the Archive left behind in Poland,
affirming Chabad’s ownership of the Archive. (Pl.’s Suppl.
Br. 7 (citing Gourary, 833 F.2d 435-37); Defs.’ RJN 61.) A
portion of the Archive’s contents arrived in the United
States in unknown circumstances in 1941. (Pl.’s Suppl.
Page 6 Br. 7 (citing Gourary, 833 F.2d. at 435).) The rest
of the Archive was taken by Nazis in Poland and moved to a
“Gestapo-controlled castle in Germany.” (Id.) In 1945, the
Archive was taken by the Soviet Army as German “trophy
documents” or “war booty” and transferred to the RSMA in
Russia. (Opp’n Mot. Dismiss 6-7; Pl.’s Suppl. Br. 7-8;
Compl. § 19.) A portion of the Archive found in
Poland that was not taken by the Soviet Army was returned
to Chabad by the Polish government in 1974.[fn6] (Opp’n
Mot. Dismiss 7; Compl. § 19.)

In 1990, Chabad formed the Jewish Community of Lubavitch
Chassidim (“JCLC”) as its representative in the Soviet
Union. (Compl. § 21.) According to Chabad, on
September 6, 1991, Soviet President Mikhail Gorbachev
instructed the RSL to return the Library to Chabad. (Id.
§ 22; Pl.’s Suppl. Br. 8.) On September 26, 1991,
the JCLC petitioned an arbitration court to order the RSL
to return the Library; the same day the court placed a lien
on the Library. (Compl. § 23; Defs.’ RJN 68.) On
October 8, 1991, a State Arbitration Tribunal of the
RSFSR[fn7] held that the Soviet government had failed to
prove that the Library “acquir[ed] a status of National
property.” (Opp’n Mot. Dismiss 8; Compl. § 25;
Defs.’ RJN 70-71.) The tribunal further held that the
Library “cannot be declared ownerless, as for a number of
years, starting from 1922, the owner of books and
manuscripts applied to various bodies of the Soviet State,
requesting their return.” (Defs.’ RJN 71.) The court
ordered the return of the Library to Chabad within one
month. (Id.) Chabad stresses that on November 18, 1991, the
Chief State Arbiter of the RSFSR affirmed this decision on
appeal. (Opp’n Mot. Dismiss 8.) In fact, the Chief State
Arbiter reversed in part the lower tribunal, holding that
Chabad had failed to show that it, rather than the Page 7
Rebbe, owned the Library, and ordered the Lenin State
Library (the RSL’s predecessor) to transfer the Library to
the Jewish National Library. (Defs.’ RJN 74-77.)

The Soviet Union dissolved on December 25, 1991, and was
replaced by the Russian Federation. Chabad alleges that
“[o]n January 29, 1992, the Deputy Chairman of the Russian
Federation ordered the [RSL] to give the Library to the
Chabad Delegation.”[fn8] (Compl. § 29.) The
Delegation, however, encountered a group of anti-Semitic
hooligans incited by an RSL director when it attempted to
take possession of the Library. (Id.) Shortly thereafter,
on February 14, 1992, the Deputy Chief State Arbiter of the
Russian Federation nullified the previous court orders that
mandated the RSL’s relinquishment of the Library and closed
the case. (Id. § 30; Pl.’s Suppl. Br. 10; Defs.’ RJN
83-85.) Chabad argues that this ruling was made
“unilaterally and secretly” and was procedurally defective.
(Pl.’s Suppl. Br. 10; Decl. [Cal. 40] Veronika R.
Irina-Kogan Opp’n Mot. Dismiss [hereinafter “Irina-Kogan
Decl.”] § 12.) On February 19, 1992, the Supreme
Soviet of the Russian Federation abolished the January 29,
1992, order and decreed that “the safety, movement and use
of the holdings available to the [RSL be effectuated]
solely on the basis of the legislation of the Russian
Federation and the provisions of international law.”
(Irina-Kogan Decl. Ex. J at 54.) Chabad claims that this
decree divested Russian courts of jurisdiction to hear
Chabad’s claims by only allowing the legislative branch to
authorize any movement of books in the RSL’s possession.
(Opp’n Mot. Dismiss 15; Pl.’s Suppl. Br. 10; Irina-Kogan
Decl. § 15.) Page 8

On December 16, 1993, Leon Fuerth, the national security
advisor to Vice President Al Gore, entered into an
agreement, entitled Memorandum of Understanding (“MOU”),
with the Minister of Culture of Russia, Evgeny Sidorov.
(Decl. [Cal. 37] Leon Fuerth Opp’n Mot. Dismiss
[hereinafter “Fuerth Decl.”] § 9.) The MOU provided
for the transfer of the Library to a new facility, where
RSL staff with the assistance of Chabad, would catalog the
Library’s contents. (Pl.’s Suppl. Br. 11-12.) The MOU was
an interim agreement between the Russian and United States
governments and Chabad was not a party to it. (Fuerth Decl.
§ 9.) Although Chabad claims that the Russian side
failed to live up to its obligations under the MOU, that
does not bear on the present case as the MOU was agreed to
be non-prejudicial to any future resolution of the
Library’s fate. (Id.)