Simon v. Republic Hungary

911 F.3d 1172

Rosalie SIMON, et al., Appellants

v.REPUBLIC OF HUNGARY and Magyar Allamvasutak Zrt., Appellees

No. 17-7146

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2018

Decided December 28, 2018

Paul G. Gaston, Washington, DC, argued the cause for appellants. With him on the briefs were Charles S. Fax, Liesel J. Schopler, L. Marc Zell, and David H. Weinstein.

Samuel J. Dubbin, Coral Gables, FL, was on the brief for amici curiae Holocaust Survivors Foundation USA, Inc., et al. in support of plaintiffs-appellants.

Geoffrey M. Klineberg and Daniel S. Severson, Washington, DC, were on the brief for amicus curiae Professor William S. Dodge in support of plaintiffs-appellants.

Gregory S. Silbert argued the cause for appellees. With him on the brief was Konrad L. Cailteux, New York, NY.

Before: Millett, Pillard, and Katsas, Circuit Judges.

Dissenting opinion filed by Circuit Judge Katsas.

Millett, Circuit Judge:

"Nowhere 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.

Fourteen 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.

In a 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 148.

On 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 States.

The 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.

I

A

The 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 Am. Compl.").

Then, 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.

B

The 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, 124 S.Ct. 2240, 159 L.Ed.2d 1 (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, 57 S.Ct. 216, 81 L.Ed. 255 (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, 124 S.Ct. 2240.

Congress 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, 124 S.Ct. 2240 (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, 124 S.Ct. 2240 ("The Act * * * transfers primary responsibility for immunity determinations from the Executive to the Judicial Branch.").

The 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, 124 S.Ct. 2240 (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. § 1605(a).

This 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).

Application of that exception hinges on a three-part inquiry:

[1] the claim must be one in which "rights in property" are "in issue";

[2] the property in question must have been "taken in violation of international law"; and

[3] one of two commercial-activity nexuses with the United States must be satisfied.

Simon , 812 F.3d at 140.

C

The 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, 81.¹ 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).²

There is no dispute that Hungary and MÁV...