United States Court of Appeals, District of Columbia Circuit
April 20, 2018
from the United States District Court for the District of
Columbia (No. 1:10-cv-01770)
G. Gaston argued the cause for appellants. With him on the
briefs were Charles S. Fax, Liesel J. Schopler, L. Marc Zell,
and David H. Weinstein.
J. Dubbin was on the brief for amici curiae Holocaust
Survivors Foundation USA, Inc., et al. in support of
Geoffrey M. Klineberg and Daniel S. Severson were on the
brief for amicus curiae Professor William S. Dodge in support
Gregory S. Silbert argued the cause for appellees. With him
on the brief was Konrad L. Cailteux.
Before: Millett, Pillard, and Katsas, Circuit Judges.
Millett, Circuit Judge.
was the Holocaust executed with such speed and ferocity as it
was in Hungary." Simon v. Republic of Hungary,
812 F.3d 127, 133 (D.C. Cir. 2016) (internal quotation marks
and citation omitted). More than 560, 000 Hungarian Jews-68%
of Hungary's pre-war Jewish population-were killed in one
year. Id. at 134. In 1944 alone, a concentrated
campaign by the Hungarian government marched nearly half a
million Jews into Hungarian railroad stations, stripped them
of all their personal property and possessions, forced them
onto trains, and transported them to death camps like
Auschwitz, where 90% of them were murdered upon arrival.
Id. at 133-134.
of the very few survivors of the Hungarian government's
pogrom (collectively, "Survivors"), including four
United States citizens, filed suit against the Republic of
Hungary and Magyar Államvasutak Zrt.
("MÁV"), Hungary's state-owned railway
company. As relevant here, the litigation seeks compensation
for the seizure and expropriation of the Survivors'
property as part of the Hungarian government's genocidal
campaign. See Simon, 812 F.3d at 134.
prior appeal in this case, we held that Hungary's and
MÁV's seizure of the Survivors' property was
an act of genocide, and that the Survivors had adequately
alleged jurisdiction over MÁV's acts of genocidal
expropriation in violation of international law. See
Simon, 812 F.3d at 142, 147-148. Although the
Survivors' first complaint had not sufficiently alleged
that jurisdiction existed over Hungary, we noted that they
might yet be able to make that showing. See id. at
remand, the district court dismissed the case on two
alternative grounds, both of which are at issue here. First,
the court held that, regardless of whether the Survivors'
claims against Hungary amounted to expropriation, principles
of international comity required that the Survivors first try
to adjudicate their claims in Hungary. Second, the court held
that, under the doctrine of forum non conveniens, a
Hungarian forum would be so much more convenient for
resolution of the claims as to clearly override the
Survivors' choice to litigate the case in the United
district court erred on both fronts. Our recent decision in
Philipp v. Federal Republic of Germany, 894 F.3d 406
(D.C. Cir. 2018), which post-dated the district court's
ruling, squarely rejected the asserted comity-based ground
for declining statutorily assigned jurisdiction. With respect
to the dismissal on forum non conveniens grounds,
the district court committed material legal errors at each
step of its analysis. A proper application of the relevant
factors leaves no basis for designating Hungary the strongly
preferred location for this litigation because Hungary is not
home to any identified plaintiff, has not been shown to be
the source of governing law, lacks a process for remediation
recognized by the United States government, and is not the
only location of material amounts of evidence. There is, in
short, far too little in this record to designate Hungary a
more convenient forum than the one chosen by the Survivors.
For those reasons, we reverse and remand for further
proceedings consistent with this opinion.
terrible facts giving rise to this litigation are recounted
at length in our first opinion in this case. See
Simon, 812 F.3d at 132-134. In brief, Hungary
"began a systematic campaign of [official]
discrimination" against its Jewish population "as
early as 1941." Id. at 133. At that time,
Hungary began rounding up tens of thousands of Jewish
citizens and refugees who had fled from surrounding
countries, and sending them to internment camps near the
Polish border. Id.; Second Amended Class Action
Complaint ¶ 105, Simon v. Republic of Hungary,
No. 10-1770 (D.D.C. June 13, 2016), ECF No. 118 ("Second
in 1944, the Nazis occupied Hungary and installed a
"fanatically anti-Semitic" regime. Simon,
812 F.3d at 133. Over the Summer of 1944, Hungary rounded up
more than 430, 000 Jews for deportation to Nazi death camps,
primarily Auschwitz. Second Am. Compl. ¶ 120. With
tragic efficiency, Hungarian government officials, including
MÁV employees, created a schedule of deportations,
along with planned routes and destinations, with four trains
running daily. Id. ¶ 117. Seventy to ninety
people were packed into an individual freight car, so that
each train transported 3, 000 to 3, 500 Hungarian Jews to
almost certain death. Id. Before the Jews were
crammed into the trains, MÁV officials robbed them of
all their possessions. Id. ¶ 112. According to
the Survivors, "[w]ithout the mass transportation
provided by the Defendant [MÁV], the scale of the
Final Solution in Hungary would never have been
possible." Id. ¶ 133.
United States traditionally afforded foreign sovereign
nations immunity from suit in domestic courts as a matter of
"grace and comity." Republic of Austria v.
Altmann, 541 U.S. 677, 689 (2004). Given the Political
Branches' constitutional expertise in foreign affairs,
courts would historically "defer to the decisions of
the political branches-in particular, those of the Executive
Branch-on whether to take jurisdiction over particular
actions against foreign sovereigns and their
instrumentalities." Id. (internal quotation
marks omitted); see also United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 319-320 (1936). But over
time, conflicting theories on when immunity should apply
created "disarray" in the State Department's
immunity decisions. Altmann, 541 U.S. at 690.
responded in 1976 by enacting the Foreign Sovereign
Immunities Act ("FSIA"), 28 U.S.C. § 1602
et seq. The FSIA is a "comprehensive statute
containing a set of legal standards governing claims of
immunity in every civil action against a foreign state or its
political subdivisions, agencies, or instrumentalities."
Altmann, 541 U.S. at 691 (internal quotation marks
omitted); see also id. ("Congress sought to
remedy these problems by enacting the FSIA."). Congress
enacted guiding "principles" so that the
"courts of the United States" could decide
"the claims of foreign states to immunity" on the
terms prescribed by Congress. 28 U.S.C. § 1602; see
Altmann, 541 U.S. at 691 ("The Act * * * transfers
primary responsibility for immunity determinations from the
Executive to the Judicial Branch.").
FSIA enumerates specific exceptions to foreign sovereign
immunity and confers federal-court jurisdiction over foreign
sovereigns in qualifying cases. 28 U.S.C. §§ 1605-
1605A. Courts may hear a case only if "one of the
exceptions applies" because "subject-matter
jurisdiction in any such action depends on that
application." Altmann, 541 U.S. at 691
(internal quotation marks omitted). Congress was also
explicit that, if an exception applies, "[a] foreign
state shall not be immune from the jurisdiction of courts of
the United States or of the States." 28 U.S.C. §
case involves the FSIA's expropriation exception to
foreign sovereign immunity. Section 1605(a)(3) waives foreign
sovereign immunity in cases asserting that "rights in
property [were] taken in violation of international law"
if "that property or any property exchanged for such
property" either (i) "is present in the United
States in connection with a commercial activity carried on in
the United States by the foreign state," or (ii)
"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[.]" 28 U.S.C. § 1605(a)(3).
of that exception hinges on a three-part inquiry:
 the claim must be one in which "rights in
property" are "in issue";
 the property in question must have been "taken in
violation of international law"; and
 one of two commercial-activity nexuses with the United
States must be satisfied.
Simon, 812 F.3d at 140.
Survivors are four United States citizens-Rosalie Simon,
Charlotte Weiss, Rose Miller, and Ella Feuerstein
Schlanger-as well as Helen Herman and Helena Weksberg from
Canada; Tzvi Zelikovitch, Magda Kopolovich Bar-Or, Zehava
Friedman, Yitzhak Pressburger, Alexander Speiser, Ze-ev Tibi
Ram, and Moshe Perel from Israel; and Vera Deutsch Danos from
Australia. Second Am. Compl. ¶¶ 5-9, 14, 22, 27,
28, 39, 41, 49, 65, 73, 81. Seeking some measure of
compensation for their injuries, the Survivors filed suit
against the Republic of Hungary, MÁV, and Rail Cargo
Hungaria Zrt., a private railway company that is the
successor-in-interest to the former cargo division of
MÁV. Simon v. Republic of Hungary, 37
F.Supp.3d 381, 385 (D.D.C. 2014). The Survivors claim that
"their possessions and those of their families were
taken from them" by the defendants as they boarded
trains destined for concentration camps. Id. at 386
(internal quotation marks omitted).
is no dispute that Hungary and MÁV are, respectively,
a foreign sovereign and an instrumentality of a foreign
sovereign whose claims of immunity are governed by the FSIA.
See Simon, 812 F.3d at 135 (citing 28 U.S.C. §
1603). Earlier in this litigation, the United States
government filed a Statement of Interest recommending that
Rail Cargo Hungaria Zrt., now nearly 100% owned by an
Austrian company, be dismissed from the case because of the
United States' "strong support for international
agreements with Austria involving Holocaust claims against
Austrian companies-agreements that have provided nearly one
billion dollars to Nazi victims." Statement of Interest
of the United States of America at 1, Simon v. Republic
of Hungary, No. 10-1770 (D.D.C. July 15, 2011), ECF No.
42. Given the United States' longstanding collaboration
with Austria to "develop funds to compensate victims of
the Holocaust," including the Austrian General
Settlement Fund, the United States maintained that a
"suit against [Rail Cargo Hungaria Zrt.] runs contrary *
* * to enduring United States foreign policy interests."
Simon, 37 F.Supp.3d at 393-394 (internal quotation
United States government said nothing about any United States
policy interest that would support dismissal of the claims
against the Republic of Hungary or MÁV. See
generally United States Statement of Interest.
district court subsequently dismissed Rail Cargo Hungaria
Zrt. as a defendant for lack of personal jurisdiction.
Simon, 37 F.Supp.3d at 444. The district court
separately dismissed the case against Hungary and MÁV
for lack of subject matter jurisdiction. The court reasoned
that the Treaty of Peace with Hungary, Feb. 10, 1947, 61
Stat. 2065, 41 U.N.T.S. 135 ("1947 Treaty"),
"provide[d] for an exclusive, extrajudicial mechanism to
resolve" the Survivors' claims, and so the court was
"constrained by the FSIA to recognize [their] sovereign
immunity." Simon, 37 F.Supp.3d at 420.
court reversed. We held that the 1947 Treaty did not preempt
the Survivors' suit because there was no express conflict
between the Treaty and the Survivors' common-law claims.
Simon, 812 F.3d at 140. The Treaty established only
a "minimum obligation by Hungary" to compensate
victims; it did not provide the "exclusive means"
by which victims could obtain relief, leaving the Survivors
free to pursue other available remedies. Id. at 137
court also ruled that the FSIA's expropriation exception,
28 U.S.C. § 1605(a)(3), encompassed the types of
common-law claims of conversion, unjust enrichment, and
restitution asserted by the Survivors. Simon, 812
F.3d at 141 ("We make FSIA immunity determinations on a
claim-by-claim basis[.]"). More specifically, we held
that the expropriation exception "squarely"
applied, id. at 146, because Hungary's and
MÁV's expropriations of the Survivors'
property were "themselves genocide," in
violation of fundamental tenets of international law,
id. at 142. "The Holocaust's pattern of
expropriation and ghettoization" in Hungary was a
"wholesale plunder of Jewish property * * * aimed to
deprive Hungarian Jews of the resources needed to survive as
a people." Id. at 143 (internal quotation marks
omitted). Systematically stripping "a protected
group" of life's necessities in order to
"physical[ly] destr[oy]" them is
to the complaint, this court held that the Survivors had
satisfactorily pled a commercial nexus with respect to
MÁV because MÁV engaged in commercial activity
in the United States by "maintain[ing] an agency for
selling tickets, booking reservations, and conducting similar
business" here. Simon, 812 F.3d at 147
(internal quotation marks omitted). The complaint's
pleadings, however, needed more specificity to show the type
of commercial nexus that would support exercising
jurisdiction over Hungary. We remanded for the district court
to address that issue. Id. at 148. This court also
left it to the district court to decide on remand
"whether, as a matter of international comity, it should
refrain from exercising jurisdiction over [the remaining]
claims until the plaintiffs exhaust domestic remedies in
Hungary," and whether the doctrine of forum non
conveniens warranted dismissal. Id. at 151.
their return to district court, the Survivors amended their
complaint to allege specific facts regarding Hungary's
ongoing commercial activity in the United States, including,
among other things, "[t]he promotion of Hungarian
businesses through trading houses," the promotion of
Hungary as a destination for United States tourists,
"[t]he promotion of American investment in Hungarian
business[, ]" "[t]he acquisition by Hungary of
military equipment," Hungary's use of the United
States' capital and debt markets to secure financing, and
Hungary's acceptance of federal grants and loans from the
United States. Second Am. Compl. ¶ 101.
district court again dismissed the case. The court chose not
to address whether the Survivors had adequately pled facts
supporting application of the FSIA's expropriation
exception. Instead, the district court held that,
notwithstanding the jurisdiction expressly granted by the
FSIA over properly pled expropriation claims,
"principles of international comity" required the
Survivors "to exhaust [Hungarian] remedies, except where
those remedies are futile or imaginary." Simon v.
Republic of Hungary, 277 F.Supp.3d 42, 54 (D.D.C. 2017)
(internal quotation marks omitted) (citing Fischer v.
Magyar Államvasutak Zrt., 777 F.3d 847, 852, 858
(7th Cir. 2015)). The district court further ruled that,
notwithstanding the Survivors' arguments about the rise
of anti-Semitism in Hungary, a "lack of meaningful
remedies," and restrictions on the independence of
Hungary's judiciary, the Survivors' "pursuit of
their claims in Hungary would not be futile."
Simon, 277 F.Supp.3d at 57-63.
district court further decided that dismissal was warranted
under the doctrine of forum non conveniens. The
court reasoned that the Survivors' choice of forum
merited "minimal" deference, and that Hungary would
be more convenient because of the evidence and many witnesses
located there. Simon, 277 F.Supp.3d at 63, 64-65. In
applying the forum non conveniens doctrine, the
court placed particular emphasis on Hungary's interest in
resolving the dispute itself. Id. at 66.
Survivors appeal both grounds for dismissal and request that
the case be reassigned to a new district court judge. We
agree that the district court erred in requiring the
exhaustion of Hungarian remedies and in its forum non
conveniens analysis, ...