Do district courts have the discretion to abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons pertaining to international comity?
This case asks the Supreme Court to decide whether the common-law doctrine of international comity provides federal courts with the discretion to dismiss claims under the Foreign Sovereign Immunities Act (“FSIA”). Respondent the Republic of Hungary argues that the FSIA must be construed in light of international comity doctrine, and that the federal court should defer to Hungary as Hungary’s interests in hearing this case outweigh those of the United States. Petitioners Rosalie Simon and other Hungarian Holocaust survivors argue that the FSIA has displaced common law and that federal courts should exercise jurisdiction in cases such as this one, where a sovereign state has failed to provide an adequate alternate forum. The outcome of this case will have implications on foreign policy, the extraterritorial reach of U.S. law, and the remedies available to the victims of Holocaust.
Questions as Framed for the Court by the Parties
Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.
During World War II, Hungary undertook a systematic campaign to eradicate its Jewish population. Simon v. Republic of Hungary, (D.C. Cir. 2018) at 1175. As part of this campaign, the Hungarian government stripped Jews of their belongings. Id. Government officials went “home to home, inventorying and confiscating Jewish property.” Simon v. Republic of Hungary, (D.C. Cir. 2016) at 133. For Jews who had managed to hold onto a few items or family treasures, they were met by Hungarian officials who would take every last personal belonging before shipping the Jews to Auschwitz or concentration camps. Id. at 133-34.
Fourteen survivors of Hungary’s extermination efforts, four of whom are U.S. citizens, filed suit in the United States District Court for the District of Columbia against the Republic of Hungary and the country’s state-owned railway company, Magyar Államvasutak Zrt., which was responsible for the forcible transportation of Jews to death camps during the Holocaust. Simon (D.C. Cir. 2018) at 1175. The survivors sought recompense for the expropriation of their property by the Hungarian government. Id.
The survivors asserted that the District Court had jurisdiction to hear the case because expropriation is an act of genocide in violation of international law. Id. They also contended that, though the Foreign Sovereign Immunities Act (“FSIA”) generally limits the circumstances in which a foreign sovereign can be sued in U.S. courts, the FSIA contains an exception for acts of expropriation, and thus Hungary is not immune from being sued in U.S. courts in this case. Id. at 1179.
The District Court dismissed the survivors’ suit on the grounds that a treaty on the matter already existed and detailed judicial remedies, and that the treaty’s terms thus prevailed over those of the FSIA. Simon (D.C. Cir. 2016) at 132. The District Court reasoned that the 1947 Peace Treaty—to which Hungary is a party—set forth the sole mechanism for Hungary’s Holocaust victims to seek recompense. Id. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit held that the existence of the treaty did not bar the survivors from seeking recovery via other legal means. Id. The Court of Appeals then remanded the case to the District Court to determine whether the survivors had to first exhaust the legal remedies in Hungary before filing suit in the United States. Id. at 132–33.
On remand, the District Court again dismissed the case, this time citing two different grounds. Simon (D.C. Cir. 2018) at 1175. First, the District Court held that the principle of international comity required the survivors to seek legal recourse in Hungary before filing suit in the United States. Id. Second, applying the doctrine of forum non conveniens, the District Court found that a Hungarian court would be a more convenient forum for the case—so much more convenient that it outweighed the survivor’s choice as to where they litigate their claims. Id.
On appeal, the Court of Appeals held that the District Court had erred by dismissing the case on the foregoing two grounds. Id. at 1176. The Court of Appeals cited its recent decision, Philipp v. Federal Republic of Germany, for the proposition that comity is not a basis for abstaining from exercising statutorily granted jurisdiction. Id. The Court also found that the District Court had improperly analyzed the question of forum non conveniens, holding that it is unclear whether Hungary would be a more convenient forum for hearing the case. Id.
Following the decision of the Court of Appeals, Hungary petitioned for en banc review, which was denied. Brief for Petitioners, Republic of Hungary et. al at 13. It then petitioned the Supreme Court of the United States for a writ of certiorari, asking the Court to review the issues of comity and forum non conveniens. Id. On July 2, 2020, the Court granted Hungary’s petition, with respect to only the question of international comity. Id.
FSIA AND INTERNATIONAL COMITY
Petitioners Republic of Hungary, et al. (“Hungary”) contend that federal courts can decline jurisdiction in this case because the FSIA does not destroy the federal court’s discretion to exercise international-comity-based abstention. Brief for Petitioners, Republic of Hungary, et al. at 19, 26. Hungary explains that comity-based-abstention allows U.S. courts to avoid “judicial interference in the conduct of foreign policy.” Id. at 25. Such abstention, Hungary continues, gives another, more appropriate sovereign the first opportunity to address a dispute relating to that sovereign. Id. at 29. Hungary points out that federal courts have often relied on—and continue to rely on—international comity to decline jurisdiction when foreign sovereign interests are implicated to ensure that U.S. litigation does not cause international friction. Id. at 23. Hungary argues that the FSIA only determines whether federal courts have subject-matter jurisdiction, and not whether they should exercise such jurisdiction. Id. at 26. Furthermore, Hungary argues, that FSIA undisputedly preserved other common law doctrines such as forum non conveniens as basis for abstention, and since forum non conveniens and international comity have similar roots, international comity too remains a valid basis for abstention. Id. at 27–28. Thus, Hungary concludes, FSIA does not preclude federal courts from exercising comity-based-abstention. Id.
Respondents Rosalie Simon, et al. (“Simon”) argue that federal courts should not exercise jurisdiction based on international comity because Congress explicitly displaced such common law doctrines by codifying the FSIA. Brief of Respondents, Rosalie Simon, et al. at 18–20. Simon asserts that the FSIA comprehensively codifies comity principles, and that comity concerns are not relevant if the FSIA provides a basis for jurisdiction. Id. at 14. Simon explains that the FSIA was intended to stop case-by-case, factor-intensive determinations of sovereign immunity that resulted in non-uniform standards and uncertainty. Id. at 14–16, 21. And today, Simon asserts, any immunity defense must stand or fall on FSIA’s text. Id. at 16–17. Furthermore, Simon argues, the use of forum non conveniens as a valid basis for abstention in some cases cannot justify the application of a separate doctrine, international-comity-based abstention, because the two doctrines having common roots is not a sufficient reason to assume that comity too is a valid basis for abstention. Id. at 26. The traditional considerations behind these two doctrines, Simon continues, are different. Id. at 25–26. Simon argues that the FSIA explicitly states that no foreign sovereign is immune unless a statutory exception applies. Id. at 17.
ADJUDICATIVE & PRESCRIPTIVE COMITY
Hungary argues that adjudicative comity, or comity of the courts, can be used to decline jurisdiction over a matter that is more appropriately brought in a different forum. Brief for Petitioners at 24. Adjudicative comity, Hungary explains, is when “judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere.” Id. For example, Hungary continues, when a foreign sovereign’s interests outweigh those of the U.S., judges may hold that the matter should be addressed in a foreign forum. Id. at 34–35. Hungary posits that this case involves such adjudicative comity because Hungary has a stronger interest than the U.S. in regulating conduct that took place in Hungary between its government and Hungarian nationals. Id. at 35. Hungary asserts that federal courts are ill-equipped to balance the interests of the survivors in this case and that applying common-law conversion claims would devastate the Hungarian economy. Id. at 39. Furthermore, Hungary argues, the U.S. explicitly extinguished its interest in settlement of any WWII-confiscated property when it became party to the 1947 Peace Treaty. Id. at 42. Apart from its extinguished interest in settlement, Hungary points out that the U.S. has little interest in this case other than the mere corporate presence of Hungary in the United States. Id. at 40–42. Finally, Hungary asserts that it should be granted adjudicative comity because it can provide an adequate forum to litigate the dispute, as per the District Court’s determination. Id. at 43.
Hungary also explains that prescriptive comity—where sovereigns limit the application of their laws to other states out of respect—provides another basis for federal courts to decline jurisdiction. Id. at 24, 46. Hungary asserts that prescriptive comity warrants dismissal here because this case revolves around the conduct of a foreign sovereign within the territory of that sovereign against nationals of that sovereign. Id. at 46. Hungary argues that the Supreme Court has previously held it unreasonable to apply a federal statutes in such situations. Id. at 46.
On the other hand, Simon argues that abstention on the basis of adjudicatory comity is limited to situations where there is a pending or completed parallel proceeding in another forum. Brief for Respondents at 27–28. Simon argues that abstention is only necessary to avoid contemporaneous exercise of concurrent jurisdiction. Id. Since there is no such parallel proceeding in Hungary, Simon concludes, adjudicatory comity does not kick in. Id. Furthermore, Simon argues that, in this case, abstention is outweighed by the inadequacy of Hungary's judicial forums for hearing such cases and the U.S.’s strong interests in ensuring available remedies to victims of the Holocaust. Id. at 38–39. Simon notes that Hungary has failed to provide a mechanism for resolving the survivor’s claims, pointing to a State Department report asserting that Holocaust-era property claims face too many procedural challenges to make a judicial remedy possible in Hungary. Id. at 40. Additionally, Simon alleges that the compensation available to Holocaust survivors in Hungary is inadequate and only provided in the form of vouchers to purchase Hungarian state property. Id. Thus, Simon argues that declining jurisdiction based on adjudicatory comity is not appropriate. Id. at 27.
Simon argues that federal courts should not decline jurisdiction based on prescriptive comity because legislatures exercise prescriptive comity when they enact laws, not by the courts. Id. at 40. Simon argues that prescriptive comity is applied only to ambiguous statutes, not the FSIA which explicitly contemplates conduct occurring outside the U.S.—especially the expropriation of property without just compensation. Id. at 41. Furthermore, Simon argues that this is not a “foreign-cubed case,” four of the named survivors in this case are U.S. citizens who were stripped of their Hungarian nationality before being sent to Nazi camps. Id. Thus, Simon argues that prescriptive comity cannot be used as a basis for declining jurisdiction. Id. at 40.
PRIVATE DEFENDANTS v. SOVEREIGNS
Hungary contends that federal courts should not exercise jurisdiction because §1606 of the FSIA puts foreign states who lack sovereign immunity in the same litigatory position as private defendants, who can obtain dismissals in cases where another forum is more appropriate. Brief for Petitioners at 29. Because international comity is available to private parties in litigation, Hungary argues that it must also be extended to suits involving sovereign defendants under the FSIA. Id. at 30–31. To bolster its argument, Hungary points to Kiobel v. Royal Dutch Petroleum Co., where the Supreme Court held that courts hearing Alien Tort Statute (“ATS”) cases did not have the authority to enforce a norm of international law if all the relevant conduct took place outside the U.S. Id. at 32. Hungary argues that, just as federal courts should not exercise jurisdiction over private defendants in foreign-centered controversies in ATS cases, they should not exercise jurisdiction over sovereign defendants in FSIA cases. Id. Hungary notes that it would be contradictory to respect foreign-policy concerns for private defendants but not sovereigns. Id. at 33.
Simon argues that federal courts should exercise jurisdiction over sovereign states because federal courts cannot use §1606 to justify abstention. Brief for Respondents at 24. Simon asserts this because section §1606 only governs the extent of liability, and not whether a U.S. court has the discretion to exercise jurisdiction over a foreign sovereign defendant. Id. Simon also distinguishes between the ATS and the FSIA, as the ATS does not clearly specify the types of claims that fall within the jurisdiction granted by it. Id. at 31. Simon argues that private-defendant cases may be dismissed if courts are wary of expanding the substantive scope of the ATS. Id. Simon asserts that the Court in Kiobel restrained the use of the ATS because Congress was silent on the issue, believing that courts should not recognize new causes of action that would have potential foreign policy implications. Id. at 32. However, Simon argues, the judicial restraint doctrines that apply to ATS cases do not apply to foreign sovereigns under FSIA, because the FSIA comprehensively covers jurisdiction over sovereigns. Id. at 31. Thus, Simon argues that federal courts should exercise jurisdiction over foreign sovereigns. Id.
FOREIGN POLICY IMPLICATIONS
The United States, in support of Hungary, argues that it would be detrimental to foreign policy not to allow courts to abstain from exercising jurisdiction on comity grounds. Brief of Amicus Curiae The United States, in Support of Petitioners at 25. Continuing, the United States contends that it is better foreign policy to encourage foreign states to develop their own systems for compensating victims of human-rights violations than it is to subject those states to the jurisdiction of U.S. federal courts. Id. at 26. In agreement, the Société Nationale SNCF SA (“SNCF”), in support of neither party but supporting reversal, points to current examples of remedial programs for Holocaust victims and asserts that “U.S. courts should defer [to these programs].” Brief of Amicus Curiae Société Nationale SNCF SA (“SNCF”), in Support of Neither Party and Supporting Reversal at 16. SNCF cautions that, without comity abstention, other sovereign states might treat the U.S. similarly—hearing lawsuits against the U.S. without first requiring those suits to be heard in U.S. courts. Id. at 23–34. Another potential consequence, SNCF warns, is that U.S. courts could soon find themselves having to “right wrongs all over the world.” Id. at 24.
On the other hand, members of the United States House of Representatives (“Members”), in support of Simon, argue that Congress made specific foreign policy determinations when it drafted the FSIA, ultimately deciding not to allow courts to abstain on comity grounds when property expropriation is at issue. Brief of Amici Curiae Members of the United States House of Representatives, in Support of Respondents at 18. The Members assert that courts are “not equipped” to make the serious foreign policy decision of whether to exercise jurisdiction. Id. at 20. Furthermore, the Members contend that the FSIA’s “comprehensive scheme” leaves no room for judicial discretion in expropriation cases. Id. Looking comparatively at the possible outcomes of foreign and domestic litigation, the American Association of Jewish Lawyers and Jurists and other advocates for Holocaust restitution (“AAJLJ”), also in support of respondents, argue that it would be inappropriate to defer to Hungary’s remedial program because Hungary has failed to make good on its promise to Holocaust victims. Brief of Amici Curiae American Association of Jewish Lawyers and Jurists et al. (“AAJLJ”), in Support of Respondents at 23–24.
ENSURING A REMEDY FOR VICTIMS
Professors Samuel Estreicher and Thomas H. Lee, in support of neither party, contend that where the “center of gravity” of a claim rests in a foreign sovereign, U.S. courts should first defer to that sovereign. Brief of Amici Curiae Professors Samuel Estreicher and Thomas H. Lee, in Support of Neither Party at 29. Estreicher and Lee continue that where a foreign sovereign has established judicial or restitutive process, U.S. courts should defer to those processes after verifying that the foreign forum meets basic standards of fairness and adequacy. Id. If such promises of fairness and adequacy turn out to be falsehoods, Estreicher and Lee contend that U.S. courts always have the option to exercise jurisdiction in the future. Id. Alternatively, SNCF maintains that concerned parties should resolve restitution and compensation matters through dialogue rather than litigation in U.S. courts, where outcomes are uncertain and may take years, possibly beyond the lifetime of most Holocaust victims. Brief of SNCF at 13–14.
The Victims of the Hungarian Holocaust (“the Victims”), in support of Simon, argue that requiring such an exhaustion of claims in the foreign forum will leave victims without compensation. Brief of Amici Curiae Victims of the Hungarian Holocaust, in Support of Respondents at 9–13. The Victims point to the exhaustion experiment by Irene Gittel Kellner, who pursued remedy in Hungarian courts for the atrocities she suffered during Holocaust. Id. at 9. The Victims continue that Irene’s case, however, was summarily dismissed in a Hungarian Court and her attempt to reopen her case in U.S. courts has not succeeded thus far. Id. at 10, 13. The Victims further claim that requiring Holocaust victims to travel to Hungary to litigate their claims could be traumatic and have the effect of deterring victims from seeking compensation. Id. at 9. In agreement, the AAJLJ assert that Hungary’s restitution system is flawed and would leave victims without “full compensation.” Brief of AAJLJ at 34–35.
- Cassie Maas, Supreme Court Grants Certiorari to Foreign Sovereign Immunities Act, Alien Tort Statute, Impeachment Trial Cases, Jurist (July 3, 2020).
- Jess Bravin, Supreme Court to Decide Federal Courts’ Authority Over Claims From Overseas Atrocities, The Wall Street Journal (July 2, 2020).
- Kimberly Strawbridge Robinson, Justices to Consider Suit to Recover Art Looted by Nazis, Bloomberg Law (July 2, 2020).