442 F.

2d 530

BANCO NACIONAL de CUBA, Plaintiff-Appellant,

v.
The FIRST NATIONAL CITY BANK OF NEW YORK,
Defendant-Appellee.
No. 798.
No. 799.
Docket 32533.
Docket 33864.

United States Court of Appeals, Second Circuit.

Argued March 18, 1971.
Decided April 27, 1971.

Victor Rabinowitz, New York City (Rabinowitz, Boudin & Standard,

New York City, on the brief), for plaintiff-appellant.
Henry Harfield, New York City (Shearman & Sterling, Herman E.
Compter and James B. Keenan, New York City, on the brief), for
defendant-appellee.
Before LUMBARD, Chief Judge, HAYS, Circuit Judge, and
BLUMENFELD, District Judge.*
LUMBARD, Chief Judge:

This case comes to us on remand from the Supreme Court for our
reconsideration in light of the views of the Department of State expressed
subsequent to our original decision which was filed on July 16, 1970. Banco
Nacional de Cuba v. First National City Bank of New York, 431 F.2d 394 (2d
Cir. 1970). For the reasons stated below, we adhere to our prior decision and
reverse and remand to the district court.

In the original action, Banco Nacional de Cuba brought suit against First

National City Bank of New York in the Southern District. After the Castro
government of Cuba had expropriated First National City's properties there
pursuant to Cuban Law No. 851, First National City had sold collateral securing
a ten-million-dollar loan it had made to Banco Nacional prior to the change in
Cuba's government. From the sale of that collateral, First National City had
received an amount conceded to be at least $11,892,448 and perhaps as
much as $12,412,000 which was substantially in excess of that required to
discharge the ten-million-dollar principal sum and the four per cent interest
thereon. Banco Nacional's suit was to recover the excess realized on that sale.
3

In the district court, First National City raised a series of counterclaims and
setoffs based principally on the contention that, since the Cuban government
had confiscated its properties in Cuba in violation of international law, it was
entitled to retain the excess on the sale of the collateral as an offset against the
value of its confiscated properties. Judge Bryan in the Southern District granted
summary judgment to First National City. Banco Nacional de Cuba v. First
National City Bank of New York, 270 F.Supp. 1004 (S.D.N.Y. 1967).

On appeal, we reversed the district court's judgment, holding that Cuba's

confiscation of First National City's properties in Cuba was an act of state and
that under Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923,
11 L.Ed.2d 804 (1964), the act of state doctrine foreclosed judicial inquiry into
the validity of that confiscation under international law. We held further that
the Hickenlooper Amendment to the Foreign Assistance Act of 19641 did not
apply here so as to defeat the act of state doctrine and thereby to give a lender
such as First National City the right to apply assets under its control to recoup
losses it has suffered by expropriation of its properties in Cuba. Accordingly,
we concluded that allowing First National City its claimed offset against the
allegedly unlawful expropriation was error; and we remanded to the district
court for a factual finding as to the amount by which the proceeds of the sale of
the collateral exceeded the amount then owing on the loan which excess we
directed should then be paid to Banco Nacional.

First National City petitioned for a writ of certiorari on October 13, 1970; and
on November 17, 1970, the Legal Advisor to the Department of State wrote a
letter to the Supreme Court expressing the views of that Department with
respect to this case. The State Department's letter is set out in full in an
appendix to this opinion. By order dated January 25, 1971, 400 U.S. 1019, 91
S.Ct. 581, 27 L.Ed.2d 630 the Supreme Court granted certiorari and remanded
the case to us without taking any position on the merits. The Supreme Court's
order stated in full:

"846 First National City Bank v. Banco National de Cuba. The petition for a
writ of certiorari is granted. The judgment of the Court of Appeals is vacated
and the case is remanded to the Court of Appeals for reconsideration in light of
the views of the Department of State expressed in its letter dated November 17,
1970, and transmitted to this Court by the Solicitor General. In taking this
action, the Court is expressing no views on the merits of the case." 39 U.S.
L.W. 3321 (January 26, 1971).

Upon reconsideration, we see no reason to change our initial decision on this

appeal.

Basically, the State Department's letter of November 17 expresses the view that
the act of state doctrine does not bar consideration of a claim for compensation
asserted as a defensive counterclaim or offset limited to the amount of a claim
made in a United States court by a foreign government, arising out of a
relationship between the parties when the act of state occurred, and where the
foreign policy interests of the United States do not require application of the
doctrine. It suggests that this Court is relieved from any restraint upon the
exercise of its jurisdiction to adjudicate First National City's counterclaim
arising out of the confiscation of its Cuban assets. The letter states that in his
case

"the foreign policy interests of the United States do not require the application
of the act of state doctrine to bar adjudication of the validity of a defendant's
counterclaim or set-off against the Government of Cuba in these circumstances.

10

The Department of State believes that the act of state doctrine should not be
applied to bar consideration of a defendant's counterclaim or set-off against the
Government of Cuba in this or like cases."

11

First National City argues that this letter constitutes the requisite statement by
the Executive Branch which under our decision in Bernstein v. N.V.
Nederlandsche-Amerikaansche, etc., 210 F.2d 375 (2d Cir. 1954), relieves the
courts from applying the act of state doctrine to bar examination of the validity
of the law in question. Because the interpretation of Bernstein will be crucial to
our determination of the instant case, we set forth the background of Bernstein
in some detail.

12

That case involved the alleged confiscation of the property of a single plaintiff,
a Jewish German national, by the Nazi German government between 1937 and
1939. Plaintiff alleged that he was compelled by officials of that government,

acting through threats of bodily harm, indefinite imprisonment, and death for
plaintiff and his family, to assign his property to the German government.
Beginning in 1946 the plaintiff sought to attach and recover some of the
proceeds of his former property in a suit brought in a state court in New York
and removed to the federal district court. In the first Bernstein case, Bernstein
v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246 (2d Cir.), cert. denied,
332 U.S. 772, 68 S.Ct. 88, 92 L.Ed. 357 (1947), we held, in an opinion by
Judge Learned Hand, that the act of state doctrine prevented us from inquiring
into the validity of the confiscation of the plaintiff's property by the Nazi
government; and we therefore affirmed the district court's dismissal of the
complaint. However, in the course of his opinion, Judge Hand said that it was a
relevant question "whether since the cessation of hostilities with Germany our
own Executive, which is the authority to which we must look for the final word
in such matters, has declared that the commonly accepted doctrine which we
have just mentioned does not apply." 163 F.2d at 249. After full consideration,
we concluded that the Executive Branch had not in fact acted to relieve the
courts of the restraint imposed by the act of state doctrine.
13

In the second Bernstein case, the same plaintiff brought a conversion action
against another defendant a Dutch corporation which, in participation in a
plan with officials of the Nazi government, had confiscated and converted his
stock in a German liability corporation. In that case, we reaffirmed our holding
in the first Bernstein case that, because of the lack of a definitive expression of
Executive policy, the act of state doctrine prevented judicial examination of
official acts of the Nazi government. Bernstein v. N. V. NederlandscheAmerikaansche, etc., 173 F.2d 71 (2d Cir. 1949). We did remand the case for
the purpose of allowing the plaintiff to allege, if he could, that his property had
been seized by persons acting in a private capacity; but we ordered him to
refrain from alleging matters which would cause the court to pass on the
validity of acts of officials of the German government.

14

Following that decision, the State Department issued a press release quoting a
letter from its Acting Legal Advisor. As the release stated, that letter

15

"repeats this Government's opposition to forcible acts of dispossession of a

discriminatory and confiscatory nature practiced by the Germans on the
countries or peoples subject to their controls; states that it is this Government's
policy to undo the forced transfers and restitute identifiable property to the
victims of Nazi persecution wrongfully deprived of such property; and sets
forth that the policy of the Executive, with respect to claims asserted in the
United States for restitution of such property, is to relieve American courts
from any restraint upon the exercise of their jurisdiction to pass upon the

validity of the acts of Nazi officials."

16

When the case came before us again, we stated that "[i]n view of this
supervening expression of Executive Policy, we amend our mandate in this case
by striking out all restraints based on the inability of the court to pass on acts of
officials in Germany during the period in question." 210 F.2d 375, 376 (2d Cir.
1954).

17

First National City argues that Bernstein requires that we change our prior
decision in the instant case, as we did there, to conform with the State
Department suggestions. It contends that since the Executive has now written a
"Bernstein letter" exercising its prerogative in the area of foreign policy and
suggesting that the act of state doctrine is inappropriate in this case, the policies
underlying that doctrine, to which the Supreme Court gave crucial weight in
Sabbatino, are not present here. According to First National City, judicial
resolution of the issue raised by this claim would involve no encroachment on
the Executive's prerogatives in the area of foreign affairs; there would be no
invasion of the foreign government's sovereignty since Cuba itself sought the
process of United States law; and there would be no burden on international
trade, nor risk to innocent purchasers, since the sole question is whether one
party has defenses that fairly curtail the recovery sought by the other party.
Hence, says First National City, this Court should not apply the act of state
doctrine here.

18

First National City contends further that without the bar of the act of state
doctrine, we can and must hold in its favor that it is entitled to set off against
Banco Nacional's claim for relief such amount as may be due and owing it from
the Cuban government as compensation for its confiscated Cuban property. Its
argument in this regard runs as follows: In Sabbatino, we held that Cuba's
seizures of property of United States nationals pursuant to Cuban Law No. 851
were in violation of international law. Banco Nacional de Cuba v. Sabbatino,
307 F.2d 845 (2d Cir. 1962). That substantive determination was not questioned
by the Supreme Court in reversing us in Sabbatino, for the Supreme Court
decided only that the Judicial Branch will not examine the validity of a taking
of property within its own territory by a foreign sovereign. When this restraint
was removed by the Hickenlooper Amendment, this Court was "unable to find
any convincing reason, based on argument or new authority, for altering our
holding in the original appeal," 383 F.2d at 183; and so we reaffirmed our
previous holding that the Cuban taking was invalid under international law.
Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir.), cert. denied, 390 U.S.
956, 88 S.Ct. 1038, 19 L.Ed.2d 1151 (1967). When the instant case came here,
we felt that the restraint on an examination of validity, recognized in the

Supreme Court's decision in Sabbatino, precluded the result we had reached in

Farr because the Hickenlooper Amendment did not apply. Now, says First
National City, the situation is altered by the subsequent expression of views by
the State Department; and hence, in conformity with our decision in Bernstein,
we should respond by following our decision on the merits in Farr, with respect
to the same Cuban law.
19

We disagree. First National City's arguments are based wholly on the

assumption that the so-called Bernstein exception to the act of state doctrine
applies here since the State Department has written a letter. We feel that that
assumption is erroneous. Bernstein arose out of a unique set of circumstances
calling for special treatment, and hence should be narrowly construed and,
insofar as is possible, limited to its facts.

20

As shown above, the facts in Bernstein were most unusual, to say the least, and
bear no resemblance to those in the instant case. The acts of state there were
performed by a German government with which this country had gone to war
and which was no longer in existence at the time of the State Department's
letter. Here, on the other hand, we have never been at war with Castro's Cuban
government, and that government is both extant and recognized by the United
States. Again, unlike the situation here, the State Department's letter in
Bernstein was written during the aftermath of a great world war; and the Nazi
government's actions, such as those of which Bernstein complained, had been
condemned throughout the world as crimes against humanity. Furthermore, the
letter in Bernstein went so far as to indicate that it was the affirmative policy of
our government to restitute identifiable property to all those victimized by the
Nazi confiscation, not merely, as the letter indicates in this case, to those who
assert counterclaims or setoffs.

21

The Executive itself seems to have recognized the uniqueness of Bernstein, for
the Solicitor General's Brief as Amicus Curiae before the Supreme Court in the
Sabbatino case states:

22

"The circumstances leading to the State Department's letter in the Bernstein

case were of course most unusual. The governmental acts there were part of a
monstrous program of crimes against humanity; the acts had been condemned
by an international tribunal after a cataclysmic world war which was caused, at
least in part, by acts such as those involved in the litigation, and the German
State no longer existed at the time of State Department's letter. Moreover, the
principle of payment of reparations by the successor German government had
already been imposed, at the time of the `Bernstein letter,' upon the successor
government, so that there was no chance that a suspension of the act of state

doctrine would affect the negotiation of a reparations settlement."

23

There is still another important distinction between Bernstein and the case at
bar. In Bernstein, as should be clear, the balance of equities was almost entirely
on the side of the party opposing application of the act of state doctrine,
plaintiff, whereas here, as we found in our prior decision in this case, the
contrary is true, since First National City is seeking a windfall at the expense of
other creditors. 431 F.2d at 404 n. 18.

24

In actual practice, as the Solicitor General's Amicus Brief in Sabbatino also

recognizes, the Bernstein exception has been an exceedingly narrow one. Prior
to the present case, a "Bernstein letter" has been issued only once in the
Bernstein case itself. Moreover, the case has never been followed successfully;
it has been relied upon only twice, and in both of those instances, by lower
courts whose decisions were subsequently reversed. Banco Nacional de Cuba
v. Sabbatino, 307 F.2d 845, 857-858 (2d Cir. 1962), rev'd 376 U.S. 398, 84
S.Ct. 923, 11 L.Ed.2d 804 (1964); Kane v. National Institute of Agrarian
Reform, 18 Fla.Supp. 116 (Fla.Cir.Ct. 1961), rev'd 153 So.2d 40 (Fla.App.
1963).2 The Supreme Court has never passed on the validity of the Bernstein
exception; indeed, in Sabbatino it carefully avoided making any such
determination. 376 U.S. at 420, 84 S.Ct. 923.

25

Furthermore, the Court in Sabbatino seemed to recognize one of the

distinctions described above between a Bernstein-type case and a case such as
the one at bar. In discussing when the act of state doctrine should be applied,
the Court stated that "[t]he balance of relevant considerations may * * * be
shifted if the government which perpetrated the challenged act of state is no
longer in existence, as in the Bernstein case, for the political interest of this
country may, as a result, be measurably altered. Therefore, * * * we decide
only that the Judicial Branch will not examine the validity of a taking of
property within its own territory by a foreign sovereign government, extant and
recognized by this country at the time of suit, in the absence of a treaty or other
unambiguous agreement regarding controlling legal principles, even if the
complaint alleges that the taking violates customary international law." 376
U.S. at 428, 84 S.Ct. at 940. It is clear that the confiscation of First National
City's property in Cuba by the extant and recognized Cuban government comes
within this holding, and the thrust of the entire decision in Sabbatino is contrary
to recognizing exceptions to the act of state doctrine in such cases.

26

For these reasons, we conclude that Bernstein is best left narrowly limited to its
own peculiar facts and that, despite the State Department's letter of November
17, 1970, the exception to the act of state doctrine created by that case is

inapplicable to the case at bar. Rather, we still find persuasive those cogent
policy reasons for applying the doctrine which were articulated by Mr. Justice
Harlan in Sabbatino and set forth in our prior opinion at 431 F.2d 397-99. Since
we hold that the State Department's letter here does not bring this case within
the narrow Bernstein exception, it is plain that that letter does not relieve us
from applying the act of state doctrine to bar examination of the validity of the
Cuban expropriation of First National City's property there.
27

Accordingly, we adhere to our prior decision and reverse and remand this case
for further proceedings consistent with that decision and this.

APPENDIX
THE LEGAL ADVISER DEPARTMENT OF STATE WASHINGTON
28
November 17, 1970

29

Honorable E. Robert Seaver

Clerk of the Court
United States Supreme Court

Dear Mr. Seaver:

30

The case of First National City Bank v. Banco Nacional de Cuba is before the
Supreme Court on petition for a writ of certiorari, No. 846 filed October 13,
1970. The case involves a claim by Banco Nacional for excess collateral it had
pledged with City Bank to secure a loan and a counterclaim by City Bank, up to
the amount claimed by Banco Nacional, based upon Cuba's expropriation,
without compensation, of property of City Bank in Cuba in 1960.1 The Court of
Appeals for the Second Circuit held that the exception to the Act of State
doctrine created by 22 U.S.C. 2370(e) (2)2 did not apply to City Bank's claim
against Cuba and that the Act of State doctrine, as expressed by the Supreme
Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 [84 S.Ct. 923, 11
L.Ed.2d 804] (1964), barred adjudication of City Bank's counterclaim.

31

The Department of State believes this second holding involves matters of

importance to the foreign policy interests of the United States and requests that
our views be conveyed to the Supreme Court.3

32

The Executive's role in suggesting that the act of state doctrine should not be
applied with respect to a certain case or class of cases has been recognized both
by the Department of State and in court decisions. This role, the so-called
Bernstein exception to the act of state doctrine as applied by United States

courts, was first clearly established in Bernstein v. N.V. Nederlandsche

Amerikaansche, Etc., 210 F.2d 375 (2nd Cir. 1954), where the court reversed its
earlier holding, 173 F.2d 71 (2nd Cir. 1949), that the act of state doctrine
precluded the court's adjudication of the validity of certain acts of the (Nazi)
German Government. The basis for this reversal was a statement by Jack B.
Tate, Acting Legal Adviser, Department of State, indicating that
33

"The policy of the Executive, with respect to claims asserted in the United
States for restitution of such property (or compensation in lieu thereof) lost
through force, coercion or duress as a result of Nazi persecution in Germany, is
to relieve American courts from any restraint upon the exercise of their
jurisdiction to pass upon the validity of the acts of Nazi officials."

34

210 F.2d at 376. Thus the Executive had indicated that the act of state doctrine
need not be applied in a certain class of cases; the applicability of the statement
was not limited to the Bernstein case.

35

In Banco Nacional de Cuba v. Sabbatino, supra, the Supreme Court held that
the act of state doctrine precluded the examination of the validity of the act of a
foreign sovereign within its own territory, even where that act was allegedly a
violation of international law. 376 U.S. at 436-37 [84 S.Ct. 923]. The ruling
was based on the Court's recognition of the Executive's prerogatives in the area
of foreign affairs; it found the act of state doctrine "arising out of the basic
relationships between branches of government in a separation of powers." Id. at
423. However, the Court specifically avoided ruling on the validity of the
Bernstein exception. Id. at 436.

36

While the Department of State in the past has generally supported the
applicability of the act of state doctrine, it has never argued or implied that
there should be no exceptions to the doctrine. In its Sabbatino brief, for
example, it did not argue for or against the Bernstein principle; rather it
assumed that judicial consideration of an act of state would be permissible
when the Executive so indicated, and argued simply that the exchange of letters
relied on by the lower courts in Sabbatino constituted "no such expression in
this case." Brief of the United States, page 11.

37

Recent events, in our view, make appropriate a determination by the

Department of State that the act of state doctrine need not be applied when it is
raised to bar adjudication of a counterclaim or setoff when (a) the foreign state's
claim arises from a relationship between the parties existing when the act of
state occurred; (b) the amount of the relief to be granted is limited to the

amount of the foreign state's claim; and (c) the foreign policy interests of the
United States do not require application of the doctrine.
38

The 1960's have seen a great increase in expropriations by foreign governments

of property belonging to United States citizens. Many corporations whose
properties are expropriated, financial institutions for example, are vulnerable to
suits in our courts by foreign governments as plaintiff, for the purpose of
recovering deposits or sums owed them in the United States without taking into
account the institutions' counterclaims for their assets expropriated in the
foreign country.

39

The basic considerations of fairness and equity suggesting that the act of state
doctrine not be applied in this class of cases, unless the foreign policy interests
of the United States so require in a particular case, were reflected in National
City Bank [of New York] v. Republic of China, 348 U. S. 356 [75 S. Ct. 423,
99 L.Ed. 389] (1956), in which the Supreme Court held that the protection of
sovereign immunity is waived when a foreign sovereign enters a U.S. court as
plaintiff. While the Court did not deal with the act of state doctrine, the basic
premise of that case that a sovereign entering court as plaintiff opens itself to
counterclaims, up to the amount of the original claim, which could be brought
against it by that defendant were the sovereign an ordinary plaintiff is
applicable by analogy to the situation presented in the present case.

40

In this case, the Cuban government's claim arose from a banking relationship
with the defendant existing at the time the act of state expropriation of
defendant's Cuban property occurred, and defendant's counterclaim is
limited to the amount of the Cuban government's claim. We find, moreover,
that the foreign policy interests of the United States do not require the
application of the act of state doctrine to bar adjudication of the validity of a
defendant's counterclaim or set-off against the Government of Cuba in these
circumstances.

41

The Department of State believes that the act of state doctrine should not be
applied to bar consideration of a defendant's counterclaim or set-off against the
Government of Cuba in this or like cases.

42

Sincerely yours,
JOHN R. STEVENSON.

Notes:

Sitting by designation

22 U.S.C. 2370(e) (2), as amended, 79 Stat. 658-659 (Sept. 6, 1965)

TheBernstein case has, in a few other instances, been cited, but not in relevant
situations. For example, in Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d Cir.
1956) and Republic of Iraq v. First National City Bank, 241 F.Supp. 567
(S.D.N.Y.1965), the case was cited, although no Bernstein letter had been filed
and the issue in the cases involved property located in the United States and
hence not subject to the Act of State doctrine. In a few other instances the
Bernstein case has been mentioned in passing, merely as an exception to the act
of state doctrine. Banco Nacional de Cuba v. Farr, 243 F.Supp. 957 (S.D.
N.Y.1965); F. Palicio y Compania, S.A. v. Brush, 256 F.Supp. 481 (S.D.N.Y.
1966); Wyman v. United States, 166 F. Supp. 766, 769, 143 Ct.Cl. 846 (1958).
In Menendez Rodrigues v. Pan American Life Insurance Co., 311 F.2d 429 (5th
Cir. 1962), the court treated the correspondence referred to in our decision in
Sabbatino, as a Bernstein letter; but, as is noted above, our decision in
Sabbatino was reversed by the Supreme Court.

The District Court determined that Banco Nacional and the Government of
Cuba are one and the same for purposes of this litigation

"(2) Notwithstanding any other provision of law, no court in the United States
shall decline on the ground of the federal act of state doctrine to make a
determination on the merits giving effect to the principles of international law
in a case in which a claim or title or other right to property is asserted by any
party including a foreign state (or a party claiming through such state) based
upon (or traced through) a confiscation or other taking after January 1, 1959, by
an act of that state in violation of the principles of international law, including
the principles of compensation and the other standards set out in this
subsection:Provided, That this subparagraph shall not be applicable (1) in any
case in which an act of a foreign state is not contrary to international law or
with respect to a claim of title or other right to property acquired pursuant to an
irrevocable letter of credit of not more than 180 days duration issued in good
faith prior to the time of the confiscation or other taking, or (2) in any case with
respect to which the President determines that application of the act of state
doctrine is required in that particular case by the foreign policy interests of the
United States and a suggestion to this effect is filed on his behalf in that case
with the court." (Foreign Assistance Act of 1965, Sec. 620(e) (2), 22 U.S.C.
2370(e) (2).)

We regret that our views could not have been brought to the attention of the
lower courts. Unfortunately, it was only after the not-yet-published opinion of

the Second Circuit Court of Appeals was handed down that the question of the
appropriateness of State Department action arose, since it did not become clear
until that time that the Sabbatino Amendment would be considered
inapplicable. No formal request for a statement by the Department was made in
this case until October 14, 1970, one day after the petition for writ ofcertiorari
was filed.
HAYS, Circuit Judge (dissenting):
43

By refusing to apply the exception to the act of state doctrine announced by this
court in the third Bernstein case, Bernstein v. N.V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954), the
majority is engaging in precisely the kind of judgment which the act of state
doctrine has removed from judicial determination.

44

The majority's attempt to distinguish Bernstein shows a misapprehension of the

basis upon which the Bernstein exception was formulated. Bernstein was a per
curiam opinion in which this court set forth part of the text of a State
Department letter. The court, making no independent evaluation of the letter
itself, then stated that "[i]n view of this supervening expression of Executive
Policy, we amend our mandate in this case by striking out all restraints based
on the inability of the court to pass on acts of officials in Germany during the
period in question." Id. at 376. Considerations such as the acts of the Nazi
government, the fact that we were at war with the government in question, and
the fact that that government no longer existed, all used by the majority to
distinguish Bernstein, were set forth not by the court but by the State
Department in its letter. Unless the majority wishes to overrule Bernstein, it
must accept the Banco Nacional letter as an expression of Executive Policy and
go no further. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 420, 84
S.Ct. 923, 11 L.Ed.2d 804 (1964), the Court held that there had been no
expression of Executive Policy.

45

More fundamental than a mere lack of conformity with Bernstein, however, is

the fact that the majority, by applying the act of state doctrine after an
independent evaluation of the merits of the State Department's decision, is
usurping the same executive prerogative which it is the function of that doctrine
to preserve. The recognition of this conflict is the very reason for the Bernstein
exception. The fundamental premise behind the act of state doctrine is that "
[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative `the political' departments of
the government, and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision." Oetjen v. Central

Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726 (1918). It is
not the function of the courts to choose between competing foreign policy
considerations and conclude that Nazi Germany is "bad" and that Cuba is
"good." The attitude of the United States toward foreign powers must be left, as
in Bernstein, to the decision of the other branches of government. As the Court
said in Sabbatino, in discussing the related issue of a judicial determination of
the right of a foreign country to sue in our courts, "[t]his Court would hardly be
competent to undertake assessments of varying degrees of friendliness or its
absence * * *." Banco Nacional de Cuba v. Sabbatino, supra, 376 U.S. at 410,
84 S.Ct. at 931. The majority has undertaken just such an assessment and, in
doing so, ignores both the exception to the act of state doctrine in Bernstein, and
the fundamental purpose of the doctrine itself. I must dissent from what I
consider to be a deviation from our judicial function.