Another one for the "When Will We B Paid?" files...

http://boston.com/dailygl...ion+.shtml

Reparations lawyers eye Fla. decision
By Lyle Denniston, The Boston Globe Correspondent, 9/22/2002

WASHINGTON - Lawyers now in the final stages of preparing to sue the federal government for wrongs done by slavery say their cause has been bolstered by a new court ruling that could overcome legal obstacles that could block their claims at the outset.

A team of lawyers working on the slavery reparations issue is now adapting their plans for lawsuits to take advantage of what one of them, Harvard professor Charles J. Ogletree Jr., calls a groundbreaking decision by a federal judge in Miami last month.

The ruling was made, not in a case about slavery, but about the Holocaust. That lawsuit was filed by Hungarian Jews against the US government for its alleged role in taking their property after it was seized from them by Nazis in Hungary during World War II.

Their case is the only one among a variety of Holocaust lawsuits to target the US government, a factor that leads some legal analysts to believe that the ruling could be applied to slave reparations claims.

Michael J. Bazyler, a Whittier Law School professor who is one of the nation's leading scholars on Holocaust litigation, said that federal courts ''could see enough of a connection'' between the Florida case and the coming slave reparations cases to apply the new ruling. He said it could be a helpful precedent on the ''foremost procedural legal obstacle'' to the forthcoming cases, the possibility courts would dismiss those lawsuits because so much time has passed since slavery ended in 1865.

''Both are lawsuits in order to right a historical wrong,'' he said. ''One of the enduring legacies of the Holocaust restitution movement is the precedent it sets for addressing other injustices of the past,'' including slavery.

Bazyler, who plans to discuss the links between Holocaust and slavery claims in a book due out next year, cautioned that there are ''major differences'' between the two kinds of cases, and those could impair the chances for the slave reparations lawsuits to succeed.

The new decision now being worked into the plans for the slavery cases was issued by US District Court Judge Patricia A. Seitz in southern Florida. In one key part of the ruling, she approved a legal tactic that might persuade a court to consider new legal claims designed to remedy injuries long ago. The tactic is to urge the judge to interrupt the time limit for filing such claims, six years.

Encouraged by that part of the decision, Ogletree said it illustrates that strict limits for filing lawsuits against the government ''are not an insurmountable barrier'' to pursuing claims for slave reparations. ''This goes a long way to create opportunities for reparations litigation,'' he added.

Seitz also upheld, at least in part, a strategy for getting around the federal government's usual immunity to being sued - an issue that probably will arise in the slavery cases just as it did in the Holocaust litigation in Florida. That strategy would be to focus the claims not on a demand for monetary damages, but on the return of property wrongly taken. The Florida judge said Congress appears to have allowed some such claims to proceed in court.

The fact that lawyers involved in the slave reparations lawsuits are looking to Seitz's decision for help illustrates of how their effort has repeatedly meshed with Holocaust claims litigation. Lawyers involved in the two campaigns are now sharing strategic planning, and they sometimes have shared the same attorneys.

One of the country's leading lawyers in class-action cases, Michael D. Hausfeld of Washington, has been a central figure in the Holocaust claims effort and is part of the leadership of the legal team working on slave reparations.

Those strategists argue that a full remedy for slavery and its effects has never been provided. They hope to obtain reparations directly through the courts, or by using legal cases to stimulate a national debate on the issue - one that Congress has for years refused to consider.

Those lawyers learned of Seitz's decision just as they were completing the legal claims they intend to raise in a new round of slave reparations cases aimed directly at the US government. Another series of lawsuits, filed in various courts beginning in March, has targeted private companies only.

''Naming the government is central to any reparations strategy,'' Ogletree has written. ''Public officials guaranteed the viability of slavery and the segregation that followed it.''

Ogletree said in an interview that ''we are very close to moving forward'' with a series of lawsuits against federal agencies. Without giving a specific date, he said: ''Our timetable, to file this fall, has not changed.''

Ogletree is the co-chairman of a committee that is coordinating the campaign to sue over slavery's legacy. He is planning cases that will name the federal government or federal agencies as active participants in causing the harms done by slavery. There will be several cases, he indicated, because ''it's inconceivable that one lawsuit would address all of the serious issues we are researching on reparations.''

Ogletree emphasized that the claims in slavery and Holocaust cases ''are not mirror images.''

Bazyler made the same point. The major differences between Holocaust and slavery claims, he said, include the argument that wrongs done by Nazis to Holocaust victims were illegal when they occurred, while slavery was legal. Another difference, he said, is that Holocaust cases involve victims who are still alive, while African-Americans who lived in slavery are no longer living.

Thus, Bazyler said, the Florida decision ''is not a conclusive precedent.'' But, like Ogletree, he suggested that it is a precedent that still may have a wider impact and could be borrowed in the forthcoming slave reparations lawsuits.

In the case before Seitz, a class of individuals claimed that personal property and valuables were stolen from Jews in Hungary by Nazis, were loaded onto what became known as the ''Gold Train'' that was later looted by US military forces who took command of the train in Austria.

The lawsuit contends that US government promised by its actions, even though there was no explicit contract, to return the property to its rightful owners. The legal complaint also argues that military officials had identified the owners of the property and were supposed to hold it for them, then return it.

The government taking of property and breaking a promise parallels the claims likely to be pressed in the slavery cases against federal agencies.

Lawyers drafting those lawsuits note that General William Tecumseh Sherman issued a military order promisng freed slaves ''a plot of not more than 40 acres of tillable ground,'' but his order was nullified by President Andrew Johnson. The federal government also seized land previously given to 40,000 blacks in Florida and South Carolina, the lawsuits will claim.

As in the Holocaust case over the Gold Train property, the slave reparations claims are sure to be met by two arguments by the federal government: sovereign immunity to the claims of a broken promise and, even if the claims might be admitted in court, they were filed too late because of the six-year time limit for suing the government.

But Seitz partly rejected both of those defenses from the Justice Department in the Gold Train case. Although stopping well short of ruling that the Jews' claims should ultimately succeed, the judge allowed their lawsuit to go forward on two complaints: that the government's refusal to return the property to its rightful owners violated international laws, and that the refusal broke an implied promise that the property would be returned.

In letting the case proceed, the judge ruled that Congress has waived the government's sovereign immunity to claims for violation of international law, so long as those claims do not demand money damages from the federal government. She said the claims of a broken promise were not barred by government immunity.

And she ruled that the time limit for suing the government may have been interrupted, if the Jews' claims of government wrongdoing are proved to be true. She did so based on an established theory that time periods for filing a lawsuit stop running if trickery by the other side prevented the filing of the lawsuit on time.

Seitz ruled that, if the claims stand up, that could justify suspending the limit on the premise that the Hungarian Jews ''were induced or tricked by the government's misconduct into allowing the filing deadline to pass.''

Her opinion noted that the Jews' case complained that the government ''turned a deaf ear to repeated requests for information about their property.''

The judge said, interrupting the time limit could be justified because, for a majority of those suing in the case, ''the years following World War II were particularly difficult,'' another factor that she said ''tips the balance in favor'' of letting the suit go forward now.

Both Ogletree and Bazyler said that part of the ruling demonstrates that judges can be persuaded to relax the time limits on lawsuits against the government where basic injustices have been clearly demonstrated. ''The story of African slaves and their descendants,'' Ogletree said, ''is one of history's worst injustices.''


This story ran on page A1 of the Boston Globe on 9/22/2002.
© Copyright 2002 Globe Newspaper Company.

hmmm...i love the dialog/the debate...*that* appears far more healthy then whatever the eventual outcome..

Let me reiterate the fact that most Holocaust survivors have not recieved compensation. Case in point, my grandmother.


SHUT DOWN

Nep2nes said:

didn't know you had "iterated" that before. i know you have irritated before tho



shut down? whether or not someone received justice in one instance has absolutely NO bearing on whether or not someone in another instance deserves or will receive justice.

that being said, the article does highlight some of the similarities and differences in legal strategies, which was the point... to contribute to more informed conversation on the matter for those who wish to engage the issue seriously.