Families of Holocaust survivors take fight for treaty funds to DC Circuit

WASHINGTON (CN) — Jenny Schieber, the daughter of two French-born Jews deported to Nazi concentration camps during World War II, is fighting to overcome legal hurdles in her quest for compensation under a 2014 treaty between France and the United States.

The D.C. Circuit heard arguments Tuesday after Schieber, three other relatives of Holocaust victims and two Holocaust survivors were denied relief from the State Department.

"Our case is an extremely important and complicated case about the role of the United States government in implementing this international agreement between countries about Holocaust claims," attorney Marc Zell of Zell, Aron & Co., representing Schieber, said in a phone interview.

Under the agreement, which was signed in December 2014 and took effect in November 2015, France put $60 million into a fund managed by the U.S., known as the Holocaust Deportation Fund, to compensate Holocaust survivors – as well as their spouses and children – who became stateless as a result of their deportation from France and therefore have not received any other government pension funds. The agreement also provides a security blanket for France protecting it from lawsuits over deportation claims.

Schieber's mother died in Auschwitz after being deported from France in July 1943, while her father survived the Holocaust and died in Belgium in 1964.

The State Department denied Schieber's Holocaust Deportation Fund claim filed on behalf of her father on the grounds that it found no evidence he was stateless, despite failing to determine if he was a citizen of Belgium or any other excluded country. She sued under the Administrative Procedure Act, arguing the rejection of her claim was arbitrary and capricious.

A federal judge in Washington dismissed her lawsuit for lack of jurisdiction last year, finding the treaty does not give American judges authority to resolve disputes related to the agreement. Schieber appealed that ruling to the D.C. Circuit.

"State's decision that it simply does not believe Mrs. Schieber, without any evidence to impeach her claims, is arbitrary and capricious and contrary to established law and the terms of the agreement," her brief to the appeals court states.

In her original claim form, Schieber swore that the information in the application – including the knowledge that her father was stateless, died in Belgium and that she had no death certificate – was true. She argues the State Department is supposed to rely on the sworn statement of nationality.

"After more than 55 years, no death certificate has been located," the brief states. "Mrs. Schieber has personal knowledge of the date of her father's death. State has not identified any public document relating to the death of her father that would contradict Mrs. Schieber's sworn statement that he died in 1964."

Highlighting the difficulty in trying to prove statelessness, the brief notes that "no country issues a document saying that an individual is not a citizen of such country."

One of Schieber's lawyers, Noam Schreiber of Zell, Aron & Co., argued Tuesday before the D.C. Circuit that because the State Department can deny claims, the treaty is domesticated enough to allow for U.S. court review of alleged Administrative Procedure Act violations.

"The underlying theory that the district court applied in dismissing the case is that the treaty itself did not provide for a private cause of action," Schreiber told the three-judge panel. "That type of analysis, in our opinion, is incorrect."

U.S. Circuit Judge Gregory G. Katsas, a Donald Trump appointee, pointed to an article in the agreement stating that disputes are only resolvable by the parties, not through judicial review.

"If the treaty or executive agreement itself foreclose review, the courts shouldn't review it," Katsas said. "We can debate until the cows come home whether that's jurisdictional or merits, but what undercuts that rule of decision such that we just wouldn't apply it?"

Senior U.S. Circuit Judge David B. Sentelle asked Schreiber what order, in particular, the courts would be reviewing for APA violations. The attorney replied the individual letters from the State Department denying each plaintiff's claim are the reviewable orders.

"That's not an order issued carrying out the laws of the United States," said Sentelle, a Ronald Reagan appointee. "Everything here comes out of a treaty."

U.S. Circuit Judge Patricia A. Millett, a Barack Obama appointee, also sat on the panel. The judges did not indicate when they would issue a ruling.

The attorney representing the federal government did not respond to requests for comments.

Zell, one of Schieber's attorneys, said relatives of the Holocaust survivors are entitled to around $25,000 from the fund, while survivors themselves are entitled to $100,000,

"We are looking forward to seeing how they decide the case," Zell said. "It's gonna be fascinating."

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