Rosalie Simon v. Republic of Hungary , 812 F.3d 127 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2015 Decided January 29, 2016
No. 14-7082
ROSALIE SIMON, ET AL.,
APPELLANTS
v.
REPUBLIC OF HUNGARY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01770)
Paul G. Gaston argued the cause for appellants. With
him on the briefs were Charles S. Fax, Liesel Schopler, L.
Marc Zell, and David H. Weinstein.
Konrad L. Cailteux argued the cause for appellees. With
him on the briefs was Gregory Silbert.
Before: HENDERSON, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
Concurring opinion filed by Circuit Judge HENDERSON.
2
SRINIVASAN, Circuit Judge: This case arises out of one
of humanity’s darkest hours. In the summer of 1944, upon
the arrival of German troops in Nazi-allied Hungary, the
Hungarian government implemented an accelerated campaign
to deport Hungarian Jews to Nazi death camps for
extermination before the War’s end. At the outset of the War,
the Jewish population in Hungary numbered more than
800,000. By the end of the War, more than two-thirds of that
population had been murdered, with the lion’s share of
victims killed at Auschwitz in a mere three-month period in
1944. Winston Churchill described the brutal, mass
deportation of Hungarian Jews for extermination at Nazi
death camps as “probably the greatest and most horrible crime
ever committed in the history of the world.”
The wartime wrongs inflicted upon Hungarian Jews by
the Hungarian government are unspeakable and undeniable.
The issue raised by this appeal is whether those wrongs are
actionable in United States courts. Plaintiffs, fourteen Jewish
survivors of the Hungarian Holocaust, bring various causes of
action against the Republic of Hungary and the Hungarian
state-owned railway arising from the defendants’ participation
in—and perpetration of—the Holocaust. The district court
dismissed the suit, holding that the Foreign Sovereign
Immunities Act’s treaty exception grants the Hungarian
defendants immunity. The court concluded that the 1947
Peace Treaty between the Allied Powers and Hungary set
forth an exclusive mechanism for Hungarian Holocaust
victims to obtain recovery for their property losses, and that
permitting the plaintiffs’ lawsuit to proceed under the FSIA
would conflict with the peace treaty’s terms.
We hold that the peace treaty poses no bar to the
plaintiffs’ lawsuit. While the treaty secures an obligation by
Hungary to provide compensation for property interests
3
confiscated from Hungarian Jews during the War, that
obligation is not exclusive of other, extra-treaty means of
recovery like the causes of action asserted in this case. As a
result, the FSIA’s treaty exception does not preclude this
action.
Plaintiffs, however, still must overcome the FSIA’s
default grant of immunity to foreign sovereigns. We hold that
the FSIA’s expropriation exception affords plaintiffs a
pathway to pursue certain of their claims: those involving the
taking of the plaintiffs’ property in the commission of
genocide against Hungarian Jews. Because those
expropriations themselves amount to genocide, they qualify as
takings of property “in violation of international law” within
the meaning of the FSIA’s expropriation exception. We
further hold that the plaintiffs’ claims do not constitute non-
justiciable political questions falling outside of the Judiciary’s
cognizance. We leave for the district court to consider on
remand whether, as a matter of international comity, the
plaintiffs must first exhaust available remedies in Hungary
before proceeding with their claims in United States courts.
I.
A.
The Hungarian government, a wartime ally of Nazi
Germany, began a systematic campaign of discrimination
against Hungarian Jews as early as 1941. Hungary stripped
some Hungarian Jews of their Hungarian citizenship, forced
others into internment camps or slave labor battalions,
expelled others from public or professional employment, and
pressed still others into exile. But as of 1944—“on the very
eve of triumph over the barbarism which their persecution
symbolize[d]”—Hungarian Jews, “while living under
4
persecution[,] ha[d] at least found a haven” from widespread
extermination in the Holocaust. Franklin D. Roosevelt,
Statement on Opening Frontiers to War Victims and Justice
for War Crimes, The American Presidency Project (Mar. 24,
1944). That reprieve from the Holocaust’s very worst horrors
would not persist.
In 1943, the Soviet Red Army dealt the Nazi Wehrmacht
and its allies a decisive blow at the battle of Stalingrad (now
Volgograd). The complete destruction of the German Sixth
Army turned the tide of war on the Eastern Front. And on the
Western Front, less than twenty-six months later—after the
Normandy landing and ensuing battles—American and Soviet
forces would meet at the Elbe River, in Torgau, Germany.
Within three days of that meeting, Adolf Hitler would be dead
by his own hand.
The Hungarian government sensed the sea change
attending the crushing defeat of the Nazis at Stalingrad.
Fearing the imminent Soviet advance, Hungary sought to
negotiate a separate peace with the United States, Great
Britain, and the other Western Allies. But Germany,
desperate to stave off Hungarian capitulation, rushed Nazi
troops into Hungary in March 1944. The Hungarian
parliament then ousted the existing government and installed
the fanatically anti-Semitic Döme Sztójay as Prime Minister.
The new Sztójay government, in collaboration with
German Nazis, embarked on a policy of total destruction of
Hungary’s Jewish population. “Nowhere was the Holocaust
executed with such speed and ferocity as it was in Hungary.”
Compl. ¶ 1. Within a period of three months in 1944, nearly
half a million Hungarian Jews were murdered.
5
First came persecution. Building on previous efforts to
marginalize Jews in society, the new Hungarian government
forbade Jews from traveling, wearing military or school
uniforms, eating in public restaurants, or using public pools.
Hungary banned books by Jewish authors from schools and
libraries. As of April 5, 1944, all Jews had to wear the
identifying yellow star.
Next came property confiscation and ghettoization.
Pursuant to government decrees, Hungary forced all Jews into
ghettos, where they were “stripped of protective clothing,
exposed to the elements, [and] deprived of sanitary facilities.”
Id. ¶ 101. Hungarian officials went home to home,
inventorying and confiscating Jewish property.
Finally came extermination in the death camps. With the
Hungarian government rapidly implementing Hitler’s Final
Solution, incarceration in the ghettos lasted but a few weeks.
Hungarian authorities marched Jews from the ghettos to
railroad stations, where they were divested of what little
property—typically suitcases, clothes, and hidden valuables—
they had managed to retain to that point. Within a mere three
months, the majority of Hungarian Jews had been transported
via railroad from the ghettos to Auschwitz and other death
camps. Ninety percent of those sent to Auschwitz and the
other camps were murdered upon arrival.
By January 17, 1945, Soviet troops had arrived in
Budapest. But by then, over 560,000 Hungarian Jews—out of
a pre-War population of nearly 825,000—had perished. The
overwhelming majority of those deaths came from the
roughly 430,000 Hungarian Jews deported to Auschwitz and
other camps during those three months in 1944.
6
B.
Because this case comes to us on a grant of dismissal in
favor of the defendants on grounds of sovereign immunity, we
assume the factual allegations in the complaint to be true. See
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d
82, 93 (D.C. Cir. 2002). The named plaintiffs in this case are
fourteen Jewish survivors of the Hungarian Holocaust. All
fourteen were Hungarian nationals during World War II, but
have since adopted other nationalities. Twelve of the
plaintiffs were among the hundreds of thousands transported
to Auschwitz, but they beat the overwhelming odds and
survived.
The plaintiffs filed suit in the United States District Court
for the District of Columbia against the Republic of Hungary
(Hungary), the state-owned Hungarian railway, Magyar
Allamvastuak Zrt. (MÁV, and, with Hungary, referred to as
the Hungarian defendants), and Rail Cargo Hungaria Zrt.
(RCH), an Austrian freight-rail company that is the successor-
in-interest to MÁV’s World War II-era freight division. The
plaintiffs allege that the Republic of Hungary collaborated
with the Nazis to exterminate Hungarian Jews and to
expropriate their property. The defendant railways, the
plaintiffs contend, voluntarily played an integral role in that
effort—specifically by transporting Hungarian Jews to death
camps, and, at the point of embarkation, confiscating the
property of those about to be deported. The complaint asserts
causes of action ranging from the common law torts of
conversion and unjust enrichment for the plaintiffs’ property
loss, to false imprisonment, torture, and assault for their
personal injuries, to international law violations. The
complaint seeks certification of a class of plaintiffs and, as
relief, seeks compensatory damages, punitive damages, and
various forms of equitable relief.
7
The defendants moved for dismissal of the claims. The
Hungarian defendants argued as alternate grounds for
dismissal: that they were immune from suit under the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1603 et seq.;
that the case presented a non-justiciable political question;
and that the case should be dismissed under the doctrine of
forum non conveniens. The district court concluded that the
FSIA granted the Hungarian defendants immunity from suit.
See Simon v. Republic of Hungary, 37 F. Supp. 3d 381, 408-
24 (D.D.C. 2014). Accordingly, the court dismissed the
claims against the Hungarian defendants for lack of subject-
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). (The court also
dismissed the claims against RCH based on the lack of
personal jurisdiction over the company, 37 F. Supp. 3d at
425-44; see Fed. R. Civ. P. 12(b)(2), but the plaintiffs raise no
challenge to the dismissal of RCH in this appeal.)
II.
The plaintiffs appeal the dismissal of their claims against
the Hungarian defendants—the Republic of Hungary and
MÁV. We review de novo the district court’s dismissal of the
claims for lack of subject-matter jurisdiction. El Paso Nat.
Gas Co. v. United States, 750 F.3d 863, 874 (D.C. Cir. 2014).
“When reviewing a plaintiff’s unchallenged factual
allegations to determine whether they are sufficient to deprive
a . . . defendant of sovereign immunity, we assume those
allegations to be true.” Price, 294 F.3d at 93.
The parties agree that, for purposes of qualifying for
sovereign immunity under the FSIA, the Republic of Hungary
is a “foreign state,” and MÁV, a corporation wholly-owned
by the Republic of Hungary, is an “agency or instrumentality”
of the Hungarian state. 28 U.S.C. § 1603(a)-(b). In the
United States, the sole avenue for a court to obtain
8
jurisdiction over claims against a foreign state or its agencies
and instrumentalities is through the FSIA, 28 U.S.C. §§ 1603
et seq. See Peterson v. Royal Kingdom of Saudi Arabia, 416
F.3d 83, 86 (D.C. Cir. 2005).
The FSIA establishes a default rule granting foreign
sovereigns immunity from the jurisdiction of United States
courts. See 28 U.S.C. § 1604; Mohammadi v. Islamic
Republic of Iran, 782 F.3d 9, 13 (D.C. Cir. 2015). That
baseline grant of immunity, however, is subject to a number
of exceptions. See 28 U.S.C. §§ 1605-07; see also id. § 1604.
The plaintiffs argue that their claims fit within the FSIA’s
“expropriation exception,” which provides jurisdiction over
certain claims involving “rights in property taken in violation
of international law.” Id. § 1605(a)(3). The Hungarian
defendants contend that the expropriation exception is
inapplicable here. They further argue that the FSIA’s “treaty
exception,” see id. § 1604, in any event divests the district
court of any jurisdiction it might otherwise have under the
expropriation exception.
We first address the treaty exception, the ground upon
which the district court rested its decision to dismiss the
plaintiffs’ claims. Finding the treaty exception inapplicable,
we next examine whether the plaintiffs’ claims implicate the
FSIA’s expropriation exception, which, as noted, creates an
exception to foreign sovereign immunity for claims involving
property “taken in violation of international law.” Id. §
1605(a)(3). We hold that in the particular circumstances of
this case—involving confiscations of property that themselves
constitute the commission of genocide—certain of plaintiffs’
claims against the Hungarian defendants may proceed under
the FSIA’s expropriation exception.
9
A.
The FSIA’s baseline grant of immunity to foreign
sovereigns is “[s]ubject to existing international agreements to
which the United States [was] a party at the time of enactment
of th[e] Act.” 28 U.S.C. § 1604. That proviso is known as
the FSIA’s treaty exception. Under the treaty exception, “if
there is a conflict between the FSIA and such an agreement
regarding the availability of a judicial remedy against a
contracting state, the agreement prevails.” de Csepel v.
Republic of Hungary, 714 F.3d 591, 601 (D.C. Cir. 2013)
(quoting Moore v. United Kingdom, 384 F.3d 1079, 1085 (9th
Cir. 2004) (punctuation omitted)). “Any conflict between a
[pre-existing] treaty and the FSIA immunity provisions,
whether toward more or less immunity, is within the treaty
exception.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661,
669 (7th Cir. 2012); accord Moore, 384 F.3d at 1084-85. As
a result, in a case like this one, in which a pre-existing treaty
is said to confer more immunity than would the FSIA, the
treaty exception would override any of the FSIA’s exceptions
to immunity under which the claims otherwise could go
forward.
1.
In this case, the Hungarian defendants’ claim of
immunity under the treaty exception rests on the 1947 Peace
Treaty between Hungary and the Allied Powers (including the
United States). Treaty of Peace with Hungary (1947 Treaty),
Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. 135. The 1947
Treaty is an “international agreement[] to which the United
States [was] a party at the time of the enactment of” the FSIA
(in 1976). 28 U.S.C. § 1604. The treaty settled myriad issues
arising out of wartime hostilities, covering topics as varied as
the location of Hungary’s post-war frontiers and the
10
regulation of Hungarian railway rates. See 1947 Treaty arts.
1, 34.
The 1947 Treaty also contained provisions addressing the
payment of compensation for (or the restoration of) property
rights and interests seized by the Hungarian government
during the war. Article 26 pertained to property rights and
interests formerly held by non-Hungarian nationals. Article
27 addressed “persons under Hungarian jurisdiction”—
Hungarian nationals. Id. art. 27(1).
Article 27 is of particular salience here. In that article,
Hungary agreed:
[T]hat in all cases where the property, legal
rights or interests in Hungary of persons under
Hungarian jurisdiction have, since September
1, 1939, been the subject
of . . . confiscation . . . on account of the racial
origin or religion of such persons, the said
property, legal rights and interests shall be
restored . . . or, if restoration is impossible, that
fair compensation shall be made therefor.
Id. If any such property held by the Hungarian government
remained unclaimed six months after the treaty’s effective
date, Article 27 further provided that the property would be
transferred to relief organizations representing Holocaust
victims. Id. art. 27(2). The transferred property was then to
“be used by such organisations for purposes of relief and
rehabilitation of surviving” victims. Id.
Article 40 of the treaty specified a three-tiered process for
resolving “any dispute concerning the interpretation or
execution of the Treaty.” Id. art. 40(1). At the first stage, the
11
treaty signatories engaged in the dispute—e.g., the United
States and Hungary—would seek resolution through “direct
diplomatic negotiations.” Id. If negotiations failed, the
second stage would refer the dispute to the chief diplomats of
the United States, Soviet Union, and United Kingdom, who
were assigned to represent the Allied Powers “in dealing with
the Hungarian Government in all matters concerning the
execution and interpretation of” the treaty. Id. arts. 39, 40(1).
Should those “Heads of Mission” fail to reach a resolution
within two months, the dispute would move to the third stage,
in which a three-member commission—one representative
from each aggrieved party plus an independent third party—
would render a final resolution. Id. art. 40(1).
2.
The Hungarian defendants argue that the 1947 Treaty
precludes jurisdiction over the plaintiffs’ claims via the
FSIA’s treaty exception. Article 27, the defendants observe,
expressly obligates Hungary to provide compensation or
restitution for property rights and interests taken from
Hungarian Holocaust victims. See id. art. 27(1)-(2).
Consequently, the defendants’ argument goes, the plaintiffs’
actions seeking recovery for Hungary’s taking of their
property necessarily amount to a challenge to the adequacy of
Hungary’s efforts to comply with its treaty obligations under
Article 27. Any challenge to the adequacy of Hungary’s
measures under Article 27, the defendants contend, must be
pursued through Article 40, which provides for an exclusive,
non-judicial dispute resolution process for “any dispute
concerning the interpretation or execution of the Treaty.” Id.
art. 40(1). Because the plaintiffs seek relief outside of Article
40’s dispute resolution framework, the defendants conclude,
the plaintiffs’ claims conflict with the 1947 Treaty and are
foreclosed by the FSIA’s treaty exception.
12
Addressing essentially the same argument (on the same
facts), the Seventh Circuit, in a brief analysis, rejected the
defendants’ argument that the 1947 Treaty overrides any
otherwise available bases for jurisdiction under the FSIA.
Abelesz, 692 F.3d at 695-96. The district court here, in a
comprehensive and thoughtful decision, reached the opposite
conclusion, accepting the Hungarian defendants’ argument
that Articles 27 and 40 of the 1947 Treaty, via the FSIA’s
treaty exception, bar the plaintiffs’ action. We ultimately
agree with the Seventh Circuit and hold that the 1947 Treaty
does not preclude the plaintiffs’ suit.
For the Hungarian defendants to prevail in their argument
under the FSIA’s treaty exception, they would need to show
that Article 27 of the 1947 Treaty establishes the exclusive
means by which Hungarian Holocaust victims can seek
compensation for (or restoration of) property taken from them
during the War. If Article 27 establishes an exclusive means
of recovery, a Hungarian Holocaust victim could seek relief
only through that mechanism. If she believes that the relief
available through Article 27 is deficient in some manner, her
concerns could be aired only through Article 40’s state-to-
state, dispute resolution process—the exclusive means of
resolving any dispute about Hungary’s implementation of the
treaty. See 1947 Treaty, art. 40(1). But if Article 27’s
establishment of an obligation by Hungary to provide
compensation for expropriated property is not exclusive of
other means of recovery that may exist, see id. art. 27(1),
Article 40 then would not foreclose the plaintiffs’ suit: while
Article 40 sets out the sole means of resolving disputes
concerning implementation of the 1947 Treaty, it has no
bearing on any claims arising outside the treaty’s auspices.
We adopt that latter understanding of Article 27. In
particular, we understand Article 27 to establish a minimum
13
obligation by Hungary to provide restoration or compensation
to Hungarian Holocaust victims for their property losses. But
while Article 27 secures one mechanism by which Hungarian
victims may seek recovery, it does not establish the exclusive
means of doing so.
“The interpretation of a treaty . . . begins with its text.”
Medellin v. Texas, 552 U.S. 491, 506 (2008). The terms of
Article 27 do not speak in the language of exclusivity.
Although Article 27 provides certain rights to the Hungarian
victims of the Holocaust pertaining to their property losses, it
says nothing about whether those rights are exclusive of other
claims Hungarian Holocaust victims might bring, such as the
causes of action asserted by the plaintiffs here.
Other treaties concluding World War II hostilities, by
contrast, contain language expressly establishing a final and
exclusive resolution of war-related claims. The treaty ending
the War in the Pacific “recognized that Japan should pay
reparations to the Allied Powers for the damage and suffering
caused by it during the war.” Treaty of Peace with Japan art.
14(a), Sept. 8, 1951, 3 U.S.T. 3169. After elaborating on the
contours of that obligation—including the entitlement of the
Allied Powers to seize and retain certain property rights and
interests of Japan and Japanese nationals—the treaty
explicitly foreclosed extra-treaty claims against Japan:
“Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied
Powers [and] other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war.” Id. art.
14(b); see Joo v. Japan, 413 F.3d 45, 49-50 (D.C. Cir. 2005).
Article 27 of the 1947 Treaty contains no comparable
waiver of extra-treaty claims against Hungary. The absence
14
of any such waiver language in Article 27 is all the more
notable given that the 1947 Treaty itself contains an express
waiver of certain other claims (albeit claims by Hungary
rather than claims against it): “Hungary waives all claims of
any description against the Allied and Associated Powers on
behalf of the Hungarian Government or Hungarian nationals
arising directly out of the war.” 1947 Treaty art. 32(1); see id.
art. 30(4).
The context of Article 27 further weighs against
construing it to foreclose extra-treaty claims by Hungarian
Holocaust victims. A sovereign generally has the authority to
espouse and “settle the claims of its nationals against foreign
countries.” Dames & Moore v. Regan, 453 U.S. 654, 679
(1981). That authority may be exercised in the terms of a
peace treaty. As the treaty with Japan illustrates, a signatory
may resolve the claims of its nationals against its wartime
enemy in a peace treaty, including by waiving any alternate,
extra-treaty means of relief. In fact, the Supreme Court long
ago suggested that a treaty of peace, by its very nature, may
be seen to have the effect of finally settling the wartime
claims of one signatory nation (and its nationals) against the
other party. See Ware v. Hylton, 3 U.S. 199, 230 (1796)
(Chase, J.). If so, any treaty provisions addressing such
claims necessarily would be exclusive of extra-treaty relief.
Article 27 of the 1947 Treaty involves a fundamentally
different situation, however. Article 27 does not address the
claims of one signatory nation (and its nationals) against the
other side to the agreement. Rather, Article 27 secures a
means by which one signatory’s nationals (Hungarian
Holocaust victims) can obtain relief against their own
government. We have been made aware of no precedent for
understanding such a provision to preclude extra-treaty
claims. After all, while a sovereign can espouse and
15
extinguish the claims of its own nationals, it has no authority
to espouse and extinguish the claims of another state’s
nationals.
As a result, the United States and the other Allied Powers
who executed the 1947 Treaty with Hungary lacked the power
to eliminate (or waive) the claims of another state’s—i.e.,
Hungary’s—nationals in the treaty’s terms. They could, and
did, impose an obligation on Hungary to provide a minimum
means of recovery to Hungarian victims for Hungary’s
wartime wrongs, which is our understanding of Article 27.
But they could not render that means of recovery an exclusive
one because they had no power to settle or waive the extra-
treaty claims of another country’s (Hungary’s) nationals. And
while the Allied powers did possess the narrower power to
control the use of their own courts as forums for the
presentation of such claims, we do not read Article 27 to
speak to the use of an Allied nation’s courts for extra-treaty
wartime claims by Hungarian victims: Article 27 contains no
language addressing where any extra-treaty claims by
Hungarian victims may be brought, or specifying whether
Allied nations’ courts may be used as forums for such claims.
The Hungarian defendants point to the settlement of
certain wartime, property-related claims in various countries’
bilateral agreements with Hungary, including a 1973
Executive Agreement between the United States and Hungary
that addressed the property claims of United States nationals
against Hungary. See Agreement Between the Government of
the United States of America and the Government of the
Hungarian People’s Republic Regarding the Settlement of
Claims, Mar. 6, 1973, 24 U.S.T. 522. Those
intergovernmental accords, the defendants contend, show that
the only way of resolving claims outside of an Article 27
mechanism is through Article 40’s process of direct state-to-
16
state negotiations, not through extra-treaty, judicial causes of
action brought by individuals.
Again, however, those bilateral agreements involved one
nation’s espousal and settlement of its own nationals’ claims
against another nation (Hungary). There is little reason to
suppose that the parties to the 1947 Treaty would have
similarly relied on the Article 40 process of state-to-state
negotiations as the exclusive means of resolving claims
encompassed by Article 27—i.e., claims by Hungarian
nationals against Hungary itself. Because those claims lay
against their own government, Hungarian victims in 1947
would have had no obvious nation to speak and negotiate on
their behalf against Hungary in any Article 40, state-to-state
process. We thus conclude that the Allied Powers envisioned
Article 27 as securing at least one means by which Hungarian
victims could seek recovery against Hungary, but not to the
exclusion of any alternate, extra-treaty actions that might be
available to them.
The Hungarian defendants also emphasize Article 27(2)’s
requirement that “[a]ll property . . . remaining heirless or
unclaimed for six months after the coming into force of the
present Treaty, shall be transferred by the Hungarian
Government to organisations in Hungary representative of
such persons, organisations or communities,” for further
distribution to Holocaust victims. 1947 Treaty art. 27(2).
Because that provision calls for the distribution of “[a]ll”
property confiscated from Hungarian Holocaust victims and
retained by the Hungarian government, the defendants argue,
Article 27 must provide the exclusive source of relief for
those victims. Otherwise, the defendants contend, Hungary
might face a double-penalty: once when it distributed
property to relief organizations under Article 27, and a second
time when a plaintiff seeks compensation for the same
17
property in an extra-treaty action even though Hungary no
longer possesses it. We are unpersuaded by the defendants’
argument.
Much of the property confiscated by Hungary from its
nationals during the War was lost or destroyed in the
conflict—indeed, the defendants themselves argue as much.
See Appellees’ Br. 38. Hungary therefore would have had
nothing to transfer to relief organizations under Article 27(2)
with regard to many of the potential claims by Holocaust
victims. Article 27(2)’s requirement that Hungary transfer
confiscated property to relief organizations thus was not
intended to foreclose extra-treaty means of recovery. It
instead apparently was aimed to assure that the Hungarian
government would devote any remaining property to relief
efforts for Hungarian victims rather than retain the property
for a different use. In fact, even if Article 27 were construed
to establish an exclusive mechanism for recovery, Hungary
would still confront the possibility of the same sort of double-
penalty: Article 27(1) requires Hungary to provide
compensation to victims whose property cannot be restored,
see 1947 Treaty art. 27(1), as would be the case when a
claimant seeks recovery pursuant to Article 27(1) for property
already transferred to a relief organization.
For those reasons, we hold that Article 27 secures one
means by which Hungarian victims can seek recovery against
Hungary for their wartime property losses, but not to the
exclusion of other available remedies. Because the plaintiffs
in this case have brought causes of action arising outside of
the 1947 Treaty, their action creates no express conflict
between an “existing international agreement[]” and the
FSIA’s other immunity exceptions for purposes of the FSIA’s
treaty exception. 28 U.S.C. § 1604.
18
B.
Although the FSIA’s treaty exception does not foreclose
jurisdiction over the plaintiffs’ claims, the plaintiffs still must
overcome the FSIA’s default rule granting immunity to the
Hungarian defendants. The plaintiffs argue that the FSIA’s
expropriation exception, see 28 U.S.C. § 1605(a)(3), allows
for jurisdiction over their claims. We agree that jurisdiction
exists as to those of the plaintiffs’ claims that directly
implicate rights in property.
The FSIA’s expropriation exception strips a foreign
sovereign’s immunity against claims:
[I]n which rights in property taken in violation
of international law are in issue and that
property or any property exchanged for such
property is present in the United States in
connection with a commercial activity carried
on in the United States by the foreign state; or
that property or any property exchanged for
such property is owned or operated by an
agency or instrumentality of the foreign state
and that agency or instrumentality is engaged
in a commercial activity in the United States.
Id. A claim thus must meet three requirements to fit within
the FSIA’s expropriation exception: (i) the claim must be one
in which “rights in property” are “in issue”; (ii) the property
in question must have been “taken in violation of international
law”; and (iii) one of two commercial-activity nexuses with
the United States must be satisfied. See Peterson, 416 F.3d at
86; see also Abelesz, 692 F.3d at 671.
19
Because the district court concluded that the FSIA’s
treaty exception bars jurisdiction over the plaintiffs’ action,
the court did not reach any holding on the FSIA’s
expropriation exception. See Simon, 37 F. Supp. 3d at 407
n.21. While we ordinarily do not decide an issue unaddressed
by the district court, the parties have thoroughly briefed and
presented the applicability of the expropriation exception and
asked us to decide it. We think it appropriate in the
circumstances to take up the parties’ invitation and resolve
that issue in the first instance.
At the outset, we address the standards by which to assess
whether the plaintiffs’ claims fall within the terms of
§1605(a)(3). In prior FSIA cases involving the expropriation
exception, this court has held that, in assessing whether
“rights in property taken in violation of international law are
in issue,” the plaintiff need only make a “non-frivolous”
showing at the jurisdictional stage. See Helmerich & Payne
Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 784
F.3d 804, 811-12 (D.C. Cir. 2015); Agudas Chasidei Chabad
of U.S. v. Russian Fed’n, 528 F.3d 934, 940-41 (D.C. Cir.
2008). That is because, in those cases, the plaintiff’s claim on
the merits directly mirrored the jurisdictional standard. The
plaintiff brought a basic expropriation claim asserting that its
property had been taken without just compensation in
violation of international law. See Helmerich, 784 F.3d at
810; Chabad, 528 F.3d at 938, 941; see also Restatement
(Third) of the Foreign Relations Law of the United States §
712(1) (Am. Law Inst. 1987). The same showing must be
made to establish jurisdiction under the FSIA’s expropriation
exception, which likewise calls for assessing whether the
property was “taken in violation of international law.” 28
U.S.C. § 1605(a)(3). When the jurisdictional and merits
inquiries fully overlap in that fashion, a plaintiff need not
prove a winning claim on the merits merely to establish
20
jurisdiction. Rather, the plaintiff need only show that its
claim is “non-frivolous” at the jurisdictional stage, and then
must definitively prove its claim in order to prevail at the
merits stage. See Bell v. Hood, 327 U.S. 678, 682 (1946);
Helmerich, 784 F.3d at 811-12; Chabad, 528 F.3d at 940-42.
This case differs from those prior cases involving the
FSIA’s expropriation exception. Here, the plaintiffs’ claim on
the merits is not an expropriation claim asserting a taking
without just compensation in violation of international law.
The plaintiffs instead seek recovery based on garden-variety
common-law causes of action such as conversion, unjust
enrichment, and restitution. The plaintiffs plead a “violation
of international laws” only to “give rise to jurisdiction” under
the FSIA’s expropriation exception, Compl. ¶ 207, not to
establish liability on the merits. Unlike in our prior cases,
consequently, the international-law violation at issue here—
genocide—bears solely on jurisdiction under § 1605(a)(3).
When, as here, the jurisdictional and merits inquiries do
not overlap, there is no occasion to apply the “exceptionally
low bar” of non-frivolousness at the jurisdictional stage.
Helmerich, 784 F.3d at 812. To establish jurisdiction in such
a situation, we therefore ask for more than merely a non-
frivolous argument. Instead, we assess whether the plaintiffs’
allegations satisfy the jurisdictional standard. See Chabad,
528 F.3d at 940. We now examine whether that showing has
been made under the FSIA’s expropriation exception.
1.
Our analysis begins with the expropriation exception’s
first requirement: that the claims are ones in which “rights in
property” are “in issue.” 28 U.S.C. § 1605(a)(3). The
plaintiffs have alleged numerous causes of action, ranging
21
from conversion of their property, to torture, to wrongful
death. The FSIA’s expropriation exception is not so broad as
to cover all of the plaintiffs’ claims.
We make FSIA immunity determinations on a claim-by-
claim basis, see Abelesz, 692 F.3d at 697; Fagot Rodriguez v.
Republic of Costa Rica, 297 F.3d 1, 13 (1st Cir. 2002);
Siderman de Blake v. Republic of Argentina, 965 F.2d 699,
706 (9th Cir. 1992), and “[c]laims against foreign sovereigns
that do not fall within the ambit of an FSIA exception are
barred.” Abelesz, 692 F.3d at 697. Section 1605(a)(3) applies
only to claims implicating “rights in property.” The
exception therefore affords no avenue by which to “bring
claims for personal injury or death”—or any other non-
property-based claims. Abelesz, 692 F.3d at 697; see id. at
677. Because the plaintiffs offer no alternate jurisdictional
basis for their non-property-based causes of action, we affirm
the district court’s determination that it lacked jurisdiction
over those claims.
Certain of the plaintiffs’ claims, however, place “rights in
property . . . in issue” within the meaning of the expropriation
exception. 28 U.S.C. § 1605(a)(3). Their conversion claim,
for instance, asserts that they “had the right to possess
personal property that was taken from them by the
defendants.” Compl. ¶ 165 (Count I). Their unjust
enrichment claim likewise contends that they “were deprived
of their personal property by the defendants” and that “[i]t
would be inequitable and unconscionable for the defendants
to continue to enjoy the benefits of possession and use of the
plaintiffs’ personal property.” Id. ¶¶ 170, 172 (Count II). In
the same vein, their restitution claim alleges that their
“personal property was taken . . . , denying them the use and
enjoyment thereof,” and that the “defendants have wrongfully
used and profited from that property.” Id. ¶ 203 (Count XV).
22
Those sorts of claims place “rights in property . . . in issue”
within the meaning of the FSIA’s expropriation exception.
Decisions applying another FSIA exception—the
immovable-property exception, 28 U.S.C. § 1605(a)(4)—are
instructive. That exception similarly turns on whether “rights
in property” are “in issue,” allowing for jurisdiction when
“rights in immovable property situated in the United States
are in issue.” Id. In Permanent Mission of India v. City of
New York, the Supreme Court held that an action seeking to
establish the validity of a tax lien imposed on real property
falls within the immovable-property exception. 551 U.S. 193
(2007). A tax lien on property qualifies as a property interest,
the Court explained, and “a suit to establish the validity of a
lien” thus “implicates rights in . . . property.” Id. at 199. Our
court has similarly concluded that “disputes directly
implicating property interests or rights to possession” are ones
in which “rights in . . . property” are “in issue” for purposes of
the immovable-property exception. Asociacion de
Reclamantes v. United Mexican States, 735 F.2d 1517, 1520-
22 (D.C. Cir. 1984) (Scalia, J.).
Here, a number of the plaintiffs’ claims seek recovery
arising from the Hungarian defendants’ confiscation of the
plaintiffs’ property. We leave it to the district court on
remand to determine precisely which of the plaintiffs’ claims
“directly implicat[e] property interests or rights to
possession,” id., thus satisfying the “rights in property . . . in
issue” requirement of § 1605(a)(3).
2.
The next question is whether the plaintiffs’ claims
involve property “taken in violation of international law.” 28
U.S.C. § 1605(a)(3). We conclude that the answer is yes.
23
The alleged takings of property in this case amounted to the
commission of genocide, and genocide violates international
law. The plaintiffs’ property therefore was “taken in violation
of international law.” Id.
a.
It is undisputed that genocide itself is a violation of
international law. See, e.g., Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 791 n.20 (D.C. Cir. 1984) (Edwards,
J., concurring); accord Abelesz, 692 F.3d at 675-76
(collecting authority). The question then becomes whether
the takings of property described in the complaint bear a
sufficient connection to genocide that they amount to takings
“in violation of international law.” 28 U.S.C. § 1605(a)(3).
We hold that they do. In our view, the alleged takings did
more than effectuate genocide or serve as a means of carrying
out genocide. See Abelesz, 692 F.3d at 675-76. Rather, we
see the expropriations as themselves genocide. It follows
necessarily that the takings were “in violation of international
law.” 28 U.S.C. § 1605(a)(3).
The legal definition of genocide encompasses the
expropriations alleged in this case. The Convention on the
Prevention of the Crime of Genocide, adopted by the United
Nations in the immediate aftermath of World War II and
ratified or acceded to by nearly 150 nations (including the
United States), defines genocide as follows:
[A]ny of the following acts committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
24
(b) Causing serious bodily or mental harm to
members of the group; [or]
(c) Deliberately inflicting on the group
conditions of life calculated to bring about its
physical destruction in whole or in part . . .
Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention), art. 2, Dec. 9, 1948, 78
U.N.T.S. 277 (emphasis added). That definition is “generally
accepted for purposes of customary [international] law.”
Restatement (Third) of the Foreign Relations Law of the
United States § 702 cmt. d. It appears not only in the
Genocide Convention itself, but also in numerous other
international treaties. See, e.g., Rome Statute of the
International Criminal Court art. 6, July 17, 1998, 2187
U.N.T.S. 90; Statute of the International Tribunal for Rwanda
art. 2 (1994); Statute of the International Criminal Tribunal
for the Former Yugoslavia art. 4 (1993). The offense of
genocide under our domestic law uses the same definition.
See 18 U.S.C. § 1091(a).
For our purposes, the pivotal acts constituting genocide
are those set out in subsection (c) of the definition. The
complaint describes takings of property intended to
“[d]eliberately inflict[] on the group conditions of life
calculated to bring about its physical destruction in whole or
in part.” Genocide Convention art. 2(c). Indeed, the
Genocide Convention’s history indicates that paragraph (c)
aimed precisely to capture the practice of expropriation and
ghettoization in the Holocaust. A delegate to the drafting
committee specifically “referred to the destructive living
conditions in the Jewish Ghettos within German[-]occupied
territory during the Second World War as an example of the
sort of conditions falling within the purview of (a draft
version) of paragraph (c).” Christian J. Tams, Lars Berster &
25
Bjorn Schiffbauer, Convention on the Prevention of
Genocide: A Commentary 122 (2014) (citing [U.N. Doc.
E/AC 25/SR 414]); see also Int’l Criminal Court, Elements of
Crimes, art. 6(c) n.4 (2011) (stating that genocide under
paragraph (c) “may include, but is not necessarily restricted
to . . . systematic expulsion from homes”).
The Holocaust’s pattern of expropriation and
ghettoization entailed more than just moving Hungarian Jews
to inferior, concentrated living quarters, or seizing their
property to finance Hungary’s war effort. Those sorts of
actions would not alone amount to genocide because of the
absence of an intent to destroy a people. The systematic,
“wholesale plunder of Jewish property” at issue here,
however, aimed to deprive Hungarian Jews of the resources
needed to survive as a people. de Csepel, 714 F.3d at 594.
Expropriations undertaken for the purpose of bringing about a
protected group’s physical destruction qualify as genocide.
The complaint describes the plaintiffs’ experiences in just
those terms. As the complaint sets out, the Hungarian
Holocaust proceeded in a series of steps and included the
taking of property and ghettoization at various points in that
process: “The Nazis . . . achieved [the Final Solution] by first
isolating [Jews], then expropriating the Jews’ property, then
ghettoizing them, then deporting them to the camps, and
finally, murdering the Jews and in many instances cremating
their bodies.” Compl. ¶ 91. The ghettoization effort
included, as an integral component, the confiscation of the
Jews’ personal property. Id. ¶ 3. “Hungarian officials
stripped Jews . . . of their valuable possessions when they
were transferred into the Jewish [ghettos],” id. ¶ 82, and, once
in the ghettos, Jews were “stripped of protective clothing,
exposed to the elements, [and] deprived of sanitary facilities,”
id. ¶ 101. The plaintiffs’ individual experiences with
26
ghettoization exemplified that pattern. See id. ¶¶ 23, 29, 31,
42, 66, 73, 80. And the defendants confiscated any personal
property remaining in the victims’ possession before
transferring them via railroad to the Nazi death camps. See
id. ¶¶ 12, 16, 19, 32, 39, 43, 54, 68, 74, 80.
Because the plaintiffs thereby allege the requisite
genocidal acts and intent, their jurisdictional allegations
suffice as a legal matter to bring their property-based claims
within the FSIA’s expropriation exception. See Phoenix
Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.
Cir. 2000). If the defendants were to challenge the factual
basis of those allegations on remand, the district court would
need to go beyond the pleadings and resolve the factual
dispute. See id. For present purposes, it is enough to note
that the complaint describes takings of property that are
themselves genocide within the legal definition of the term.
Such expropriations constitute “tak[ings] in violation of
international law.” 28 U.S.C. § 1605(a)(3).
b.
The defendants nonetheless contend that the
expropriations of property set out in the complaint were not
“in violation of international law.” The defendants rely on the
so-called “domestic takings rule,” under which, “generally, a
foreign sovereign’s expropriation of its own national’s
property does not violate international law.” Helmerich, 784
F.3d at 812; see United States v. Belmont, 301 U.S. 324, 332
(1937). Because the plaintiffs were Hungarian nationals at
the time of Hungary’s alleged expropriations, the defendants
argue, the domestic takings rule renders those takings non-
actionable under international law. We disagree. The
domestic takings rule has no application in the unique
circumstances of this case, in which, unlike in most cases
27
involving expropriations in violation of international law,
genocide constitutes the pertinent international-law violation.
International law has long prohibited a sovereign from
expropriating the property of another state’s nationals without
payment of just compensation. See, e.g., Restatement (Third)
of the Foreign Relations Law of the United States § 712(1);
Restatement (Second) of the Foreign Relations Law of the
United States §§ 185, 186 (Am. Law Inst. 1965). That basic
international-law prohibition against uncompensated
expropriations, however, has always generally exempted
intrastate takings. A sovereign’s expropriation of its own
national’s property might violate the state’s own domestic
laws, but it is ordinarily not a concern of international law.
See Belmont, 301 U.S. at 332; Helmerich, 784 F.3d at 812.
That understanding, captured by the domestic takings rule,
manifests the broader reluctance of nations to involve
themselves in the domestic politics of other sovereigns. See
Abelesz, 692 F.3d at 674-75. The domestic takings rule
means that, as a general matter, a plaintiff bringing an
expropriation claim involving an intrastate taking cannot
establish jurisdiction under the FSIA’s expropriation
exception because the taking does not violate international
law. See Republic of Austria v. Altmann, 541 U.S. 677, 712
(2004) (Breyer, J., concurring); Siderman, 965 F.2d at 711.
In this case, however, the plaintiffs do not bring a basic
international-law expropriation claim. Accordingly, the
international-law violation on which the plaintiffs premise
their argument for jurisdiction under § 1605(a)(3) is not the
traditional prohibition against uncompensated takings.
Rather, the relevant international-law violation for
jurisdictional purposes is genocide. See Compl. ¶ 207.
Genocide perpetrated by a state against its own nationals of
course is a violation of international law. See generally
28
Genocide Convention art. 2; see, e.g., Kadic v. Karadzic, 70
F.3d 232, 241-42 (2d Cir. 1995). The international-law
prohibition against genocide in fact was a direct reaction to
the actions of sovereigns against their own citizens. The
Hungarian Holocaust is a paradigmatic example. Genocidal
expropriations of the property of a sovereign’s own nationals
thus are “tak[ings] in violation of international law” for
purposes of the FSIA’s expropriation exception. 28 U.S.C. §
1605(a)(3). In short, the domestic takings rule has no
applicability in the discrete circumstances of this case.
The text of § 1605(a)(3), as we have explained, applies
foursquare to genocidal takings committed by a state against
its nationals. And nothing in the provision’s history or
context compels us to read the statute in a manner at odds
with its plain terms. To be sure, international law
traditionally did not regulate conduct between a sovereign and
its subjects. See 1 Oppenheim’s Int’l Law 849. But World
War II marked a change in that landscape, leading to
recognition of certain international-law norms that “protect
individuals from inhuman treatment by states, even if the
[offending] state is that state whose nationality the individual
has.” Id. at 851. In particular, “the condemnation of
genocide as contrary to international law quickly achieved
broad acceptance by the community of nations” in the
aftermath of the War and the Nuremberg Trials. Kadic, 70
F.3d at 241; see Princz v. Federal Republic of Germany, 26
F.3d 1166, 1173-74 (D.C. Cir. 1994). By the time of the
expropriation exception’s enactment in 1976 as part of the
FSIA, genocide had long been identified as an international-
law crime—as evidenced by the Genocide Convention, article
2, adopted in 1948.
Section 1605(a)(3)’s reference to “violation[s] of
international law” therefore includes genocide
29
notwithstanding that a sovereign’s actions against its own
citizens traditionally fell outside the purview of international
law. Judicial interpretation of the Alien Tort Statute, 28
U.S.C. § 1350, confirms that understanding. Even though
international human rights law did not even exist when the
First Congress enacted the Alien Tort Statute in 1789, the
statute’s reference to “law of nations” encompasses conduct
universally accepted as violating international law today, see
Sosa v. Alvarez-Machain, 542 U.S. 692, 732-33 (2004),
including genocide and certain other offenses committed by a
sovereign against its own subjects, e.g., Kadic, 70 F.3d at 242
(genocide); Abebe-Jira v. Negewo, 72 F.3d 844, 845-46 (11th
Cir. 1996) (torture); Tel-Oren, 726 F.2d at 791 n.20 (Edwards,
J., concurring) (genocide, torture, summary execution,
slavery). It follows a fortiori that the term “international law”
in the FSIA’s expropriation exception—enacted by the 94th
Congress well after the development of international human
rights law—likewise encompasses genocide. As with the
Alien Tort Statute, there are sound reasons for caution before
concluding that a state’s actions against its own nationals
infringe a prohibition of sufficiently universal acceptance to
amount to a “violation of international law” within the
meaning of § 1605(a)(3). See Sosa, 542 U.S. at 727-28. We
hold here only that genocide is such a crime.
Unsurprisingly, there is no indication in the legislative
history that Congress affirmatively considered § 1605(a)(3)’s
applicability in the distinctive context of genocidal takings.
Rather, the general international-law prohibition against
expropriations without just compensation would have been
foremost in Congress’s mind. See H.R. Rep. No. 94-1487, at
19-20 (1976). But in the absence of any indication that
Congress would have desired to exclude genocidal takings
from the statute’s scope, and in light of the established status
of genocide as an international-law crime by the time of the
30
FSIA’s enactment, we adhere to the expropriation exception’s
plain terms in holding that genocidal expropriations constitute
“tak[ings] in violation of international law.” 28 U.S.C. §
1605(a)(3).
We recognize one seeming anomaly, also noted by the
Seventh Circuit in addressing parallel claims arising from the
Hungarian Holocaust: that the FSIA scheme, as we construe
it, enables the plaintiffs to “seek compensation for taken
property but not for taken lives.” Abelesz, 692 F.3d at 677.
But that is a byproduct of the particular way in which
Congress fashioned each of the various FSIA exceptions.
See id. Those exceptions were designed to deal generally
with the full range of cases that might arise under them.
There is no reason to assume that, in every discrete context in
which those exceptions might be applied (such as claims
arising from genocide), there would be perfect coherence in
outcome across all of the exceptions. Congress determined as
a general rule that, for non-commercial torts, jurisdiction
would exist against foreign sovereigns only for “personal
injury or death . . . occurring in the United States.” 28 U.S.C.
§ 1605(a)(5). Congress established no such limitation for
claims involving “property taken in violation of international
law.” Id. § 1605(a)(3). The unavailability of jurisdiction for
personal-injury claims under a different, independent
exception affords no reason to deny jurisdiction for property-
related claims fitting squarely within the terms of the
expropriation exception.
3.
We turn finally to § 1605(a)(3)’s commercial-activity
nexus requirements. The nexus requirement differs somewhat
for claims against the foreign state itself (e.g., Hungary) as
compared with claims against an agency or instrumentality of
31
the foreign state (e.g., MÁV). See Chabad, 528 F.3d at 947.
As to the claims against Hungary, the question is whether the
“property [in issue] or any property exchanged for such
property is present in the United States in connection with a
commercial activity carried on in the United States by the
foreign state.” 28 U.S.C. § 1605(a)(3). As to the claims
against MÁV, the question is whether the “property [in issue]
or any property exchanged for such property is owned or
operated by an agency or instrumentality of the foreign state
and that agency or instrumentality is engaged in a commercial
activity in the United States.” Id. Considered at a more
general level, both kinds of claims require: (i) that the
defendants possess the expropriated property or proceeds
thereof; and (ii) that the defendants participate in some kind
of commercial activity in the United States.
The Hungarian defendants argue that the plaintiffs’
factual allegations fail to satisfy § 1605(a)(3)’s nexus
requirements. When a “defendant challenges . . . the legal
sufficiency of the plaintiff’s jurisdictional allegations,” we
must “take the plaintiff’s factual allegations as true and
determine whether they bring the case within . . . the [FSIA]
exception[] to immunity invoked by the plaintiff.” Phoenix
Consulting Inc., 216 F.3d at 40. Here, the Hungarian
defendants would be entitled to a dismissal for failure to
establish jurisdiction only if “no plausible inferences can be
drawn from the facts alleged that, if proven,” would satisfy
the expropriation exception’s nexus requirements. Price, 294
F.3d at 93. Applying that standard, we find that the plaintiffs’
allegations suffice to withstand dismissal as to the claims
against MÁV but not as to the claims against Hungary.
With respect to the requirement that defendants possess
the expropriated property or proceeds thereof, the complaint
alleges that the Hungarian defendants liquidated the stolen
32
property, mixed the resulting funds with their general
revenues, and devoted the proceeds to funding various
governmental and commercial operations. Those allegations
suffice to raise a “plausible inference[]” that the defendants
retain the property or proceeds thereof, absent a sufficiently
convincing indication to the contrary. Id. The defendants
suggest that the United States might have confiscated the
expropriated property from Hungary; that Hungary might
have turned over all of the confiscated property to a relief
organization in compliance with its obligations under the
1947 Treaty; or that Hungary might have liquidated all of the
proceeds on other government operations. That speculation
fails to demonstrate the implausibility of the plaintiffs’
claims.
The Seventh Circuit rejected similar arguments made by
Hungarian defendants facing claims brought by Hungarian
Holocaust victims under the expropriation exception.
Abelesz, 692 F.3d at 688. There, as here, the defendants
“offered no case or fact that demonstrates conclusively that
the value of the expropriated property is not traceable to their
present day cash and other holdings”; they thus failed to
defeat the plausibility of the plaintiffs’ claims. Id. at 689.
Although “[i]t is certainly possible that the value of plaintiffs’
expropriated property was lost during one or more of these
[intervening events],” it “is also plausible that defendants
retain the value of plaintiffs’ expropriated property.” Id.
Of course, the plaintiffs ultimately “may or may not be
able to prove the point.” Id. at 688. Upon any factual
challenge by the Hungarian defendants—e.g., concerning
whether the defendants in fact still possess the property or
proceeds thereof—the plaintiffs will bear the burden of
production, and the defendants will bear the burden of
persuasion to “establish the absence of the factual basis by a
33
preponderance of the evidence.” Chabad, 528 F.3d at 940.
We conclude only that the “[p]laintiffs’ claims that [the]
defendants currently own or operate their expropriated
property (or property exchanged for such property) are not so
implausible as to permit resolution on the pleadings alone.”
Abelesz, 692 F.3d at 689.
With respect to the requirement that the defendants be
engaged in commercial activity in the United States, the
plaintiffs allege that MÁV maintains “an agency for selling
tickets, booking reservations, and conducting similar business
in the United States.” Compl. ¶ 85. Because defendants make
no attempt to argue that the rail company fails to “engage[] in
a commercial activity in the United States,” the nexus
requirement is satisfied as to MÁV. 28 U.S.C. § 1605(a)(3).
But as to Hungary, by contrast, the plaintiffs put forward
only the bare, conclusory assertion that “property is present in
the United States in connection with commercial activity
carried on by Hungary within the United States.” Compl. ¶
83. There is nothing more. Although the plaintiffs “need not
set out all of the precise facts on which the[ir] claim[s] [are]
based in order to survive a motion to dismiss,” Price, 294
F.3d at 93, here, they allege precisely zero facts concerning
what commercial activity, if any, Hungary carries on in the
United States. Our inquiry is “similar to that of Rule
12(b)(6),” id., under which “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). That is all the plaintiffs have advanced here. We
express no view on whether they can (or should be allowed
to) amend the complaint in this regard on remand. But as it
stands, the complaint’s allegations about Hungary’s
commercial activity fail to demonstrate satisfaction of
§1605(a)(3)’s nexus requirement.
34
4.
As a final argument against the applicability of the
FSIA’s expropriation exception, the Hungarian defendants
argue that there can be no jurisdiction under § 1605(a)(3)
unless the plaintiffs first demonstrate that they have exhausted
available domestic remedies in Hungary. It is important to
place that exhaustion argument in proper perspective. The
defendants could in theory assert (at least) three forms of an
exhaustion argument in this case. Only one of those
arguments is before us, and we reject it.
First, the defendants might contend that the FSIA itself
obligates a plaintiff to exhaust domestic remedies before
attempting to bring suit against a foreign sovereign in United
States courts. This court, however, has held that the FSIA
itself imposes no exhaustion requirement. See Chabad, 528
F.3d at 948-49; accord Abelesz, 692 F.3d at 678. The
Hungarian defendants thus understandably make no such
argument before us.
Second, the defendants could argue that, with regard to
the FSIA’s expropriation exception in particular, a plaintiff
cannot show a “violation of international law” as required by
§ 1605(a)(3) without exhausting domestic remedies in the
defendant state (or showing the absence of any need to do so).
That is the argument presented by the Hungarian defendants
here, and we find it unpersuasive in the circumstances.
In certain situations, exhaustion may be required before
an expropriation gives rise to a violation of international law.
When a case involves a basic international-law expropriation
claim asserting a taking of a foreign national’s property
without payment of just compensation, there may be no
violation until the plaintiff seeks (and is denied) compensation
35
through the sovereign defendant’s domestic laws. See
Altmann, 541 U.S. at 714 (Breyer, J., concurring); Fischer v.
Magyar Allamvasutak Zrt., 777 F.3d 847, 857 (7th Cir. 2015);
Restatement (Third) of the Foreign Relations Law of the
United States § 712. That would parallel the rule applicable
to domestic claims asserting a taking of property without just
compensation under the Fifth Amendment, as to which there
is no constitutional violation until the plaintiff unsuccessfully
attempts to obtain compensation through local remedies. See
Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194-95 (1985).
Any comparable rule under international law would have
no application here, however. As we have explained, the
relevant international-law violation in this case for purposes
of § 1605(a)(3) is not the basic prohibition against an
uncompensated expropriation of a foreign national’s property.
Rather, the takings of property in this case violate
international law because they constitute genocide. In the
context of a genocidal taking, unlike a standard expropriation
claim, the international-law violation does not derive from
any failure to provide just compensation. The violation is the
genocide itself, which occurs at the moment of the taking,
whether or not a victim subsequently attempts to obtain relief
through the violating sovereign’s domestic laws. See Fischer,
777 F.3d at 852, 857. In this case, the challenged takings
therefore “violat[e] [] international law” within the meaning
of § 1605(a)(3) regardless of whether the plaintiffs exhausted
Hungarian remedies.
This brings us to the third type of exhaustion argument
that the Hungarian defendants could assert in this case. The
defendants could contend that, even if the claims at issue fit
within § 1605(a)(3) so as to enable the exercise of
jurisdiction, the court nonetheless should decline to exercise
36
jurisdiction as a matter of international comity unless the
plaintiffs first exhaust domestic remedies (or demonstrate that
they need not do so). See id. at 858; Restatement (Third) of
the Foreign Relations Law of the United States § 713 cmt. f.
The Seventh Circuit found that prudential argument to be
persuasive in closely similar circumstances, see Fischer, 777
F.3d at 859-66, but the argument is not before us in this
appeal. The plaintiffs briefly contend in their reply brief that
no exhaustion requirement should apply here because of the
inadequacy of available Hungarian remedies, but the
defendants have not argued (and have had no occasion to
argue) the point in this court. Instead, the sole contention
before us is that the plaintiffs cannot show a “violation of
international law” under § 1605(a)(3) without exhausting
Hungarian remedies, an argument we have rejected. We
leave it to the district court to consider on remand, should the
defendants assert it, the third form of exhaustion argument:
whether, as a matter of international comity, the court should
decline to exercise jurisdiction unless and until the plaintiffs
exhaust available Hungarian remedies.
III.
To this point, we have concluded that the FSIA’s treaty
exception does not preclude consideration of the plaintiffs’
claims, and that jurisdiction over their property-based claims
exists under the FSIA’s expropriation exception. The
Hungarian defendants, however, also urge us to dismiss the
case for reasons apart from foreign sovereign immunity.
They contend that the case presents a non-justiciable political
question. Although the district court did not reach that issue,
both sides ask us to address it and present arguments in their
briefing. We conclude that, at least on the record before us at
this time, the case does not present a non-justiciable political
question.
37
“In general, the Judiciary has a responsibility to decide
cases properly before it, even those it ‘would gladly avoid.’”
Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427
(2012) (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)).
The political question doctrine constitutes a narrow exception
to that rule, and, when properly invoked, deprives a court of
authority to decide the issues before it. Id. A controversy
“involves a political question . . . where there is a textually
demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it.” Id.
(quoting Nixon v. United States, 506 U.S. 224, 228 (1993))
(internal quotation marks omitted) (ellipsis in original). A
political question may also arise where there is “the
impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”
Baker v. Carr, 369 U.S. 186, 217 (1962). None of those
considerations leads us to conclude that this case presents a
non-justiciable political question.
The Hungarian defendants point to the 1947 Peace Treaty
and also the aforementioned 1973 Executive Agreement
between the United States and Hungary. Those agreements,
in the defendants’ view, demonstrate that the issue of
compensation for Hungary’s wartime actions has been
textually committed to the political branches and that judicial
consideration of the issue could undermine the Executive
Branch’s resolution. We disagree.
With regard to the question of textual commitment to the
political branches, “it is error to suppose that every case or
38
controversy which touches foreign relations lies beyond
judicial cognizance.” Id. at 211. There is no across-the-board
constitutional bar preventing the Judiciary’s consideration of
actions arising out of the wartime conduct of a foreign
sovereign. See, e.g., Altmann, 541 U.S. at 701-02; Alperin v.
Vatican Bank, 410 F.3d 532, 546-58 (9th Cir. 2005). The
plaintiffs’ property-based claims in this case generally “seek
restitution for looted assets,” and “[r]eparation for stealing,
even during wartime, is not a claim that finds textual
commitment in the Constitution.” Alperin, 410 F.3d at 551;
id. at 551-52.
Nor do the 1947 Peace Treaty or the 1973 Executive
Agreement raise any significant risk that judicial
consideration of this case could undermine Executive Branch
actions. As we have explained in rejecting the Hungarian
defendants’ arguments under the FSIA’s treaty exception, the
1947 Peace Treaty does not serve as the exclusive mechanism
by which former Hungarian nationals can seek compensation
for the wartime expropriation of their property. Because the
plaintiffs’ claims arise outside the 1947 Treaty, judicial
consideration of the claims does not undermine the
Executive’s negotiated resolution in that instrument. The
1973 Executive Agreement, meanwhile, is a bilateral accord
between the United States and Hungary. It addresses, at most,
the claims of current United States nationals. See de Csepel,
714 F.3d at 602-03. The agreement did not—and could not—
effect any Executive Branch resolution of the claims of non-
United States nationals, who make up the majority of the
plaintiffs in this case. As a result, regardless of the possible
implications of the agreement for the ultimate merits of the
claims asserted by United States nationals, it affords no basis
for declaring the entire case a non-justiciable political
question.
39
The Executive Branch, moreover, has given no indication
that adjudication of the plaintiffs’ lawsuit would encroach on
those agreements or raise any broader foreign relations
concerns. The Executive often files a statement in court if it
believes that judicial consideration of a case would interfere
with the operation of the United States’s treaties and
agreements or would otherwise impinge on the conduct of
foreign relations. See Alperin, 410 F.3d at 556-57. Notably,
the United States filed a statement of interest in this case, but
not with respect to the plaintiffs’ claims against the Hungarian
defendants.
In the district court, the government submitted a
statement pursuant to 28 U.S.C. § 517 in which it urged
dismissal of the suit against Austrian defendant RCH “on any
valid legal ground.” Statement of Interest of the United States
of America at 16 (July 15, 2011). The United States’s foreign
policy interests, the government averred, would be best served
by continuing its “long-standing, and ongoing, pursuit of
cooperative compensation arrangements with Austria and
other governments.” Id. at 15. The district court granted
dismissal of the claims against RCH on grounds of personal
jurisdiction, and the plaintiffs did not appeal that dismissal.
The government’s statement of interest conspicuously made
no argument—and raised no concerns—about the claims
against the Hungarian defendants, the subject of this appeal.
That silence by the government, when it otherwise made
known its concerns about this case, fortifies our conclusion
that the claims against the Hungarian defendants do not
present a non-justiciable political question.
* * * * *
For the foregoing reasons, we affirm in part and reverse
in part the district court’s decision. While we find that the
40
FSIA’s treaty exception does not preclude the plaintiffs’
claims, we affirm the district court’s dismissal of the
plaintiffs’ non-property claims because they do not come
within the FSIA’s expropriation exception. We reverse the
dismissal of the property-based claims, however, for which
jurisdiction exists under that exception. We leave it to the
district court to consider on remand whether, as a matter of
international comity, it should refrain from exercising
jurisdiction over those claims until the plaintiffs exhaust
domestic remedies in Hungary. The district court may also
elect to consider any other arguments that it has yet to reach
and that are unaddressed in our opinion today, such as the
defendants’ forum non conveniens arguments.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
While I join the Court’s opinion in full, I write separately to
emphasize the baselessness of Hungary’s invocation of the
Treaty Exception to the Foreign Sovereign Immunities Act
(FSIA). 1 Implicit in Hungary’s argument is the premise that
it made a good-faith promise to return (within six months’
time), or to provide compensation for, the unlawfully
expropriated property belonging to the survivors of Hungary’s
attempted extermination of over one-half million Jewish
nationals in the last months of World War II. The signatories
to the 1947 Peace Treaty further agreed that any property that
remained unclaimed after six months would be given to
Holocaust relief organizations. According to Hungary, as a
result of those provisions, the 1947 Peace Treaty insulates
Hungary from the jurisdictional reach of the FSIA.
There is no suggestion that Hungary made any timely
attempt to satisfy its obligations under the 1947 Peace Treaty.
Indeed, the Hungarian Constitutional Court recognized that
even in 1993 Article 27’s requirements remained unfulfilled.
And given the unprecedented chaos of post–World War II
Europe, the commitment that property seized—and often
liquidated—by the Nazis could be located and returned in six-
months’ time, or that fair compensation for the seized
property could be paid within any reasonable time, was
illusory. Although looking back seventy years may make it
easy to assume that recovery from continent-wide, almost
decade-long devastation progressed smoothly, nothing could
be more inaccurate:
Imagine a world without institutions. It is a
world where borders between countries seem
to have dissolved, leaving a single, endless
landscape over which people travel in search
1
Specifically, I agree with the Court’s treatment of, and
conclusions regarding, Articles 27 and 40 of the 1947 Peace Treaty.
2
of communities that no longer exist. There are
no governments any more, on either a national
scale or even a local one. . . . No one has seen
a newspaper for weeks. There are no railways
or motor vehicles, no telephones or telegrams,
no post office, no communication at all except
what is passed through word of mouth. . . .
Law and order are virtually non-existent,
because there is no police force and no
judiciary. In some areas there no longer seems
to be any clear sense of what is right and what
is wrong. People help themselves to whatever
they want without regard to ownership—
indeed, the sense of ownership itself has
largely disappeared. Goods belong only to
those who are strong enough to hold on to
them, and those who are willing to guard them
with their lives. Men with weapons roam the
streets, taking what they want and threatening
anyone who gets in their way. . . . For modern
generations it is difficult to picture such a
world . . . . However, there are still hundreds
of thousands of people alive today who
experienced exactly these conditions—not in
far-flung corners of the globe, but at the heart
of what has for decades been considered one of
the most stable and developed regions on earth.
In 1944 and 1945 large parts of Europe were
left in chaos for months at a time. The Second
World War—easily the most destructive war in
history—had devastated not only the physical
infrastructure, but also the institutions that held
countries together. The political system had
broken down to such a degree that American
observers were warning of the possibility of
3
Europe-wide civil war. The deliberate
fragmentation of communities had sown an
irreversible mistrust between neighbours; and
universal famine had made personal morality
an irrelevance. “Europe”, claimed the New
York Times in March 1945, “is in a condition
which no American can hope to understand.”
It was “The New Dark Continent”.
KEITH LOWE, SAVAGE CONTINENT: EUROPE IN THE
AFTERMATH OF WORLD WAR II xiii–xiv (St. Martin’s Press
2012). Well into the 1950s, Europe remained “economically,
politically and morally unstable.” Id. at 69. Even the Allied
nations—the only group “universally recognized as untainted
by association with the Nazis”—were “completely unprepared
to deal with the complicated and widespread challenges that
faced them in the immediate aftermath of the war.” Id. at 69–
70.
Hungary was no exception. First occupied by Germany
in 1944 and then “liberated” by Stalin’s troops as the war
drew to a close, Hungary’s “[e]stablished state institutions
collapsed as their officials fled in the face of the Red Army’s
advance, forcing the country’s new occupiers to construct a
new state almost from scratch.” Mark Pittaway, The Politics
of Legitimacy and Hungary’s Postwar Transition, in
CONTEMPORARY EUROPEAN HISTORY 453, 455 (Cambridge
University Press 2004). Indeed, “[t]he last six months of the
war left Hungary devastated,” resulting in the destruction of
“40 percent of Hungary’s national wealth,” damage to 90 per
cent of Hungary’s industrial plants and loss of 40 per cent of
Hungary’s rail network and 70 per cent of Hungary’s railway
vehicles. LÁSZLÓ BORHI, HUNGARY IN THE COLD WAR, 1945–
1956: BETWEEN THE UNITED STATES AND THE SOVIET UNION
53–54 (Central European University Press 2004). The task of
4
rebuilding Hungarian society fell to the Soviet Union, which,
as the district court noted, had little interest in complying with
the terms of a treaty that did not further the interest of the
communist state. See Simon v. Republic of Hung., 37
F. Supp. 3d 381, 391 (D.D.C. 2014).
No group felt the effects of this upheaval more than the
Jewish survivors of Hitler’s death camps, the majority of
whom “believed it their duty to return to their countries of
origin and try to rebuild their communities the best they
could.” LOWE, supra at 191. Given the rampant anti-
Semitism that plagued the former Nazi-occupied areas, “[t]he
historiography of this period in Europe is littered with stories
of Jews trying, and failing, to get back what was rightfully
theirs.” Id. at 198. “[T]he property of Jews was dispersed”
far and wide “through a combination of confiscation, plunder,
theft and resale.” Id. Indeed, “[i]n larger cities like
Budapest,” this state of affairs “often rendered it impossible
for returning Jews to trace their property.” Id. at 198–99.
And even in smaller, rural towns where property could be
traced, the Hungarian courts often “ruled that horses and other
livestock plundered from Jewish farms should remain with
those who had ‘saved’ them.” Id. at 200.
Much ink has been spilled on the general upheaval in
post-World War II Europe 2 and the chaos that befell the
Soviet-occupied nations in particular. 3 Against this backdrop,
Hungary asks this Court to trust that it in fact intended to
restore expropriated property to its rightful owners within six
months, or to pay them fair compensation, in “all cases.”
Treaty of Peace, U.S.-Hung., art. 27, Feb. 10, 1947, T.I.A.S.
2
See, e.g., LOWE, supra.
3
See, e.g., Pittaway, supra; BORHI, supra.
5
No. 1651 (emphasis added). In Hungary’s view, the 1947
Peace Treaty represents the exclusive means by which
Hungarian Jewish victims of the Holocaust could obtain
recovery for property seized from them. It revises history—
and defies reality—to claim that Hungary had any intent or
ability to effectuate Article 27 of the 1947 Peace Treaty.
Accordingly, it would be unthinkable to conclude that the
1947 Peace Treaty fits within the FSIA’s Treaty Exception.