Emil Alperin v. Vatican Bank
Opinion
Opinion
ORDER
The panel has elected to amend the memorandum disposition, filed on December 29, 2009. With the amendment, the petition for panel rehearing and rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed.
Section II of the Memorandum Disposition, is deleted in its entirety, with the following inserted in lieu thereof:
II
The district court did not err in holding that the international takings exception does not apply to remove FSIA immunity. Where the defendant sovereign succeeds in “establishfing] a prima facie case of immunity, the burden of production shifts to the plaintiff to offer evidence that an exception applies.” Phaneuf, 106 F.3d at 307.
FSIA’s international taking exception provides that:
28 U.S.C. § 1605 (a).
The takings exception requires plaintiffs to plead that either the expropriated property or property exchanged for the expropriated property has a jurisdictional nexus to the United States. The Complaint must contain allegations as to the current status of the expropriated property or property exchanged for such property; either an allegation that such property is currently present in the United States or an…