# Simon v. Republic of Hungary

> District Court, District of Columbia · December 30, 2021

URL: https://www.frixlaw.com/law-library/cases/5141846

## Case

- **Court:** District Court, District of Columbia
- **Decided:** December 30, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Chief Judge Beryl A. Howell
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROSALIE SIMON, et al.,
individually, for themselves and for all others
similarly situated,
Civil Action No. 10-cv-1770 (BAH)
Plaintiffs,
Chief Judge Beryl A. Howell
v.

REPUBLIC OF HUNGARY, et al.,

Defendants.

MEMORANDUM OPINION

The fourteen named plaintiffs in this proposed class action—Rosalie Simon, Helen

Herman, Charlotte Weiss, Helena Weksberg, Rose Miller, Tzvi Zelikovitch, Magda Kopolovich

Bar-Or, Zehava (Olga) Friedman, Yitzhak Pressburger, Alexander Speiser, Ze’ev Tibi Ram,

Vera Deutsch Danos, Ella Feuerstein Schlanger, and Moshe Perel (collectively, “plaintiffs”)—

are but a few survivors among the approximately 825,000 Hungarian Jews who were subjected

to the atrocities and horrors of the Holocaust at the hands of the Hungarian government between

1941 and 1945. Second Am. Compl. (“SAC”) ¶¶ 5–9, 14, 22, 28, 39, 41, 49, 65, 73, 81, 131,

ECF No. 118.1 The plaintiffs maintain this suit against the Republic of Hungary (“Hungary”)

and the Hungarian national railway, Magyar Államvasutak Zrt. (“MÁV”), (collectively,

“defendants”), in search of long-overdue restitution for property that was seized from them as

part of Hungary’s broader effort to eradicate the Jewish people. See SAC ¶¶ 173–215.

1
Mr. Zelikovitch passed away in 2012, after this action was filed, and his three children—Esther
Zelikovitch, Asher Yogev, and Yosef Yogev—were substituted in his place as “his sole Heirs at Law.” SAC at 3
n.1. He remains described and discussed as a “named plaintiff” for ease of reference.

1
After a decade-long tour of the federal court system, bouncing up and down the tiers of

appellate review, this case is back in this Court for consideration of defendants’ fourth motion to

dismiss—like the three before it, for lack of subject matter jurisdiction, pursuant to Federal Rule

of Civil Procedure 12(b)(1), on grounds of sovereign immunity not exempted under the Foreign

Sovereign Immunity Act (“FSIA”), 28 U.S.C. § 1602 et seq.. The D.C. Circuit twice rejected

several bases on which to grant dismissal (both with and without prejudice), but since that time,

the Supreme Court has expressly rejected a central pillar of the Circuit’s first Simon opinion

while vacating the judgment associated with the second Simon opinion. Meanwhile, the paper

trail in this case grew further still when this Court last year ruled on defendants’ third motion to

dismiss, appellate review of which opinion was cut short by the Supreme Court’s direction to

remand everything back here. The task before this Court is first to sort out what the state of the

law in this case is, given its complex procedural history with intervening changes in case law.

Only then can the parties’ arguments be examined in the context of the already-crowded slate on

which the Court now writes.

The motion to dismiss is granted in part and denied in part. For the reasons explained

below, the outcome of this motion varies by plaintiff. Four plaintiffs must be dismissed with

prejudice for an uncurable lack of subject matter jurisdiction due to sovereign immunity, nine

plaintiffs may proceed past this motion to dismiss but may still face jurisdictional hurdles down

the line, and one remaining plaintiff is the subject of jurisdictional allegations so ambiguous as to

warrant dismissal, though without prejudice to a new attempt.

I. BACKGROUND

The grim factual background of this eleven-year-old case has been recounted in several

prior decisions of this Court and the D.C. Circuit. See generally Simon v. Republic of Hungary

2
(“Simon-2014”), 37 F. Supp. 3d 381, 385–95 (D.D.C. 2014), aff’d in part, rev’d in part, 812 F.3d

127 (D.C. Cir. 2016); Simon v. Republic of Hungary (“Simon I”), 812 F.3d 127, 132–34 (D.C.

Cir. 2016), abrogated in part by Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021);

Simon v. Republic of Hungary (“Simon-2017”), 277 F. Supp. 3d 42, 47–49 (D.D.C. 2017), rev’d,

911 F.3d 1172 (D.C. Cir. 2018); Simon v. Republic of Hungary (“Simon II”), 911 F.3d 1172,

1175–76 (D.C. Cir. 2018), vacated per curiam, 141 S. Ct. 691 (2021); Simon v. Republic of

Hungary (“Simon-2020”), 443 F. Supp. 3d 88, 92–94 (D.D.C. 2020). That background is briefly

summarized below, followed by review of the lengthy relevant procedural history.

A. Factual Background

In 1944, “the Nazis and Hungary, knowing that they had lost [the war], raced to complete

their eradication of the Jews before the Axis surrendered.” SAC ¶ 3. As part of their broader

plan to eradicate the Jewish people, defendants stripped Hungarian Jews of their possessions,

including cash, jewelry, heirlooms, art, valuable collectibles, and gold and silver, loaded them

onto trains, and transported them in squalid conditions to concentration camps where they were

either murdered or forced to work as slave laborers. Id. ¶¶ 12, 17, 20, 23–26, 32–34, 44–48, 52–

58, 69–71, 75–76, 81. “In less than two months, . . . over 430,000 Hungarian Jews were

deported, mostly to Auschwitz, in 147 trains.” Id. ¶ 120; id., Ex. B, ECF No. 118-2 (listing

deportation trains in 1944, along with “DATES, ORIGIN OF TRANSPORTS AND NUMBER OF

DEPORTEES”). The “vast majority” of the Hungarian Jews sent “to the killing fields and death

camps of Nazi Germany-occupied Poland and the Ukraine” died. SAC ¶ 3. “The overall loss of

Hungarian Jewry during the Second World War, excluding those who fled abroad, was 564,507.”

Id. ¶ 131. Hungary “does not dispute that the treatment of Hungarian Jews during the Holocaust

was reprehensible.” Hungary’s & MÁV Magyar Államvasutak Zrt.’s Mem. Supp. Mot. Dismiss

Second Am. Class Action Compl. (“Defs.’ Mem.”) at 19, ECF No. 165-1.
3
After the armistice agreement ended the hostilities of World War II, SAC ¶ 137, Hungary

signed the “Paris Peace Treaty of February 10, 1947” (“1947 Treaty”) that incorporated “a

number of provisions relating to the restoration of confiscated property,” with promises to

undertake the restoration of, and make fair compensation for, property, legal rights, or interests

confiscated from persons “‘on account of the racial origin or religion of such persons,’” id. ¶ 138

(citation omitted) (quoting 1947 Treaty art. 27, ¶ 1, 61 Stat. 2065, 2124, 41 U.N.T.S. 135).

Article 27 of the 1947 Treaty and related provisions “were not self-executing (they needed

appropriate municipal legislation and enforcement to prevail); and they did not provide for

sanction in case of non-compliance, other than the implied possible litigation before an

international tribunal.” Id. (quoting 2 RANDOLPH L. BRAHAM, THE POLITICS OF GENOCIDE: THE

HOLOCAUST IN HUNGARY 1308–09 (rev. ed. 1994)).

Plaintiffs acknowledge that the Hungarian government “implement[ed] an array of

legislative enactments and remedial statutes,” but Hungarian Jews “saw no tangible results with

respect to restitution and indemnification” for their seized property. SAC ¶ 138. Moreover,

“[w]ith the Communist party in power in Hungary” after World War II, “‘the issue of

compensation or restitution was squashed,’” and to the extent the Hungarian government had set

aside funds for victims of the Holocaust, “the funds were rarely used for their intended purpose

and they were frequently raided by the Communists for financing their own political projects.”

Id. ¶¶ 141–42 (quoting 2 BRAHAM, supra, at 1309). In 1992, “two years after the downfall of the

Communist regime” in Hungary, the Hungarian government adopted at least two laws to provide

remedies to Hungarian Jews victimized in the Holocaust: one of these laws “provid[ed]

compensation for material losses incurred between May 1, 1939 and June 8, 1949,” and the other

“provid[ed] compensation for those who, for political reasons, were illegally deprived of their

4
lives or liberty between March 11, 1939 and October 23, 1989,” but, in plaintiffs’ view, the

remedies provided under those programs were “paltry and wholly inadequate.” Id. ¶ 143.

In sum, plaintiffs claim never to have been properly compensated for the personal

property seized from them by defendants as plaintiffs were being deported. SAC ¶¶ 83–84.

Further, plaintiffs allege that defendants “liquidated [this] stolen property, mixed the resulting

funds with their general revenues, and devoted the proceeds to funding various governmental and

commercial operations.” Id. ¶ 97. Thus, plaintiffs claim that the “stolen property or property

exchanged for such stolen property is owned and operated by Hungary and MÁV,” some of

which property “is present in the United States in connection with commercial activity carried on

in the United States by Hungary,” id. ¶ 98, including, for example, “fees and payments, offices,

furniture, furnishings, bank accounts, artwork, stock and bond certificates, securities held in

‘street name’ and airplanes,” id. ¶ 101.

In 2010, sixty-five years after the end of World War II and twenty years after the fall of

the Hungarian communist regime, plaintiffs filed the instant action against Hungary and MÁV,

seeking, inter alia, restitution for the possessions seized from them and their families during the

Holocaust, and to certify a class consisting of “all surviving Jewish victims of the Holocaust”

and “the heirs . . . and open estates . . . of the deceased Jewish victims of the Holocaust,” where

such victims were residents of Hungary at any point between September 1, 1939 and May 8,

1945 and “were stripped of personal property by” defendants. Id. ¶ 153; Class Action Compl.

(“Compl.”) ¶ 132, ECF No. 1. According to plaintiffs, the putative class consists of at least

“5,000 survivors” and “countless heirs and estates” of many of the “approximately 825,000 Jews

in Hungary” who were victims of the atrocities committed by defendants. SAC ¶¶ 131, 154.2

2
The parties offer no estimates of potential total damages specific to this case, but as defendants point out,
see Defs.’ Mem. at 40 n.24, cases of this type have the potential to yield awards so large as to be economically

5
Plaintiffs’ Second Amended Complaint asserts, in ten counts, common law claims for

conversion (Count I), unjust enrichment (Count II), breach of fiduciary and special duties

imposed on common carriers (Count III), recklessness and negligence (Counts IV and V), civil

conspiracy with Nazi Germany to commit tortious acts (Count VI), aiding and abetting (Count

VII), restitution (Count VIII), accounting (Count IX), as well as a demand for a declaratory

judgment that plaintiffs and class members are entitled to inspect and copy certain documents in

Hungary, and for injunctive relief enjoining defendants from tampering with or destroying such

documents (Count X; Prayer For Relief ¶¶ 5–6). See SAC ¶¶ 173–215. To satisfy their burden

of establishing the requisite subject matter jurisdiction of this Court to hear these claims,

plaintiffs contend that defendants are not immune from suit because of the FSIA’s expropriation

exception, 28 U.S.C. § 1605(a)(3), SAC ¶¶ 86–92, which exception permits suit in United States

courts against a foreign sovereign or its agencies or instrumentalities to vindicate “rights in

property taken in violation of international law” when an adequate commercial nexus is present

between the United States and a defendant, 28 U.S.C. § 1605(a)(3).

B. Procedural Background

This is the fourth motion to dismiss presented by defendants over the last decade in this

case, with the first two motions granted and the third motion denied by this Court, the latter

under controlling precedent established in the D.C. Circuit’s reversal of this Court’s grants of the

first two motions. As summarized below, the D.C. Circuit has effectively rebuffed every ground

previously found to warrant dismissal of this lawsuit, but the Supreme Court’s recent vacatur of

destabilizing. In a suit by Holocaust victims against a Hungarian national bank and MÁV—both instrumentalities of
the state—the Seventh Circuit observed, in the course of contemplating dismissal on the grounds of international
comity, that “[t]he sum of damages sought by plaintiffs would amount to nearly 40 percent of Hungary’s annual
gross domestic product in 2011.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 665, 682, 697 (7th Cir. 2012).

6
Simon II and rejection of a central holding in Simon I appropriately prompt yet another

examination.

1. Simon-2014

Defendants’ first motion to dismiss for lack of subject matter jurisdiction due to

sovereign immunity was granted on the basis of the “treaty exception” to the FSIA, under which

the FSIA’s general grant of immunity and the limitations thereto—including the expropriation

exception—are all “[s]ubject to existing international agreements to which the United States

[was] a party at the time of enactment of” the FSIA, 28 U.S.C. § 1604. See Simon-2014, 37 F.

Supp. 3d at 424. In other words, a pre-existing international agreement among sovereign

countries supersedes the FSIA’s default provisions to the extent the two are in conflict. See id. at

408–09. This Court found that the 1947 Treaty was such an agreement and “trigger[ed] the

FSIA’s treaty exception to deprive this Court of subject matter jurisdiction over the plaintiffs’

claims.” Id. at 407. In particular, the 1947 Treaty addressed Hungary’s disposition of “all

property” taken from Holocaust victims, id. at 415 (quoting 1947 Treaty art. 27(1)), directed how

Hungary was to distribute all expropriated property at the end of the war, and provided that “any

dispute concerning the interpretation or execution of the treaty” was subject to resolution

exclusively through the mechanisms described in the Treaty. Id. at 415–16 (quoting 1947 Treaty

art. 40(1)). Viewing those treaty provisions as delineating the exclusive legal regime set up to

resolve plaintiffs’ property claims against Hungary, and thus defining the contours of Hungary’s

waiver of its sovereign immunity for claims for property seized during the Holocaust, this Court

held that the 1947 Treaty precluded review of plaintiffs’ property claims under any FSIA

exception. Id. at 397, 424, 444.

Other arguments advanced by the parties concerning the parameters of the FSIA’s

“expropriation exception” or prudential reasons to dismiss the case, such as international comity
7
considerations or the forum non conveniens doctrine, were not then necessary to address. See

Simon-2014, 37 F. Supp. 3d at 407 n.21, 418 n.28.3 Nevertheless, though not essential to its

disposition in Simon-2014, this Court highlighted the “serious comity issue,” also identified by

the Seventh Circuit in Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012), “raised by

adjudicating the merits of whether Hungarian efforts to provide restitution to the victims of the

Hungarian Holocaust were sufficient.” Simon-2014, 37 F. Supp. 3d at 404–05 n.20.

Specifically, “[i]f U.S. courts are ready to exercise jurisdiction to right wrongs all over the world,

including those of past generations, we should not complain if other countries’ courts decide to

do the same.” Id. at 405 n.20 (quoting Abelesz, 692 F.3d at 682). This Court pointedly raised

the specter of “plaintiffs suing in foreign courts to obtain redress for the horrors of slavery

inflicted upon millions of African-Americans during the eighteenth and nineteenth centuries in

the United States, or for the destruction of property resulting from overseas armed conflicts

involving American soldiers since the dawn of the Republic.” Id.

2. Simon I

On appeal, the D.C. Circuit affirmed in part and reversed in part. First, though calling

Simon-2014 “a comprehensive and thoughtful decision,” Simon I, 812 F.3d at 137, the Circuit

rejected application of the treaty exception, id. at 135, finding that the 1947 Treaty set out only a

non-exclusive mechanism for plaintiffs and other Hungarian Holocaust victims to obtain

3
Simon-2014 also dismissed all claims against a third defendant, Rail Cargo Hungaria Zrt. (“RCH”), for
want of personal jurisdiction, finding that RCH, now an Austrian company, lacked sufficient alleged minimum
contacts with the United States. 37 F. Supp. 3d at 385, 394, 425. Plaintiffs conceded that specific jurisdiction over
RCH was unavailable, id. at 426, and this Court rejected plaintiffs’ attempts to characterize RCH as sufficiently “at
home” in the United States so as to confer general jurisdiction based on RCH’s maintenance of a website and the
possibility that RCH could have shareholders or affiliates in or with sufficient contacts to the United States, id. at
427–29. Separately, the United States had filed a Statement of Interest advocating dismissal of the claims against
RCH because of the U.S. government’s “strong support for international agreements with Austria involving
Holocaust claims against Austrian companies,” Statement of Interest of U.S. at 1, ECF No. 42, but expressing no
position as to the claims against Hungary and MÁV. Plaintiffs did not challenge RCH’s dismissal on appeal, Simon
I, 812 F.3d at 134, and RCH is not named as a defendant in the currently operative complaint, SAC ¶¶ 83–85.

8
compensation, id. at 137. Thus, “the FSIA’s treaty exception does not foreclose jurisdiction over

the plaintiffs’ claims,” id. at 140 (“Article 27 secures one means by which Hungarian victims can

seek recovery . . . , but not to the exclusion of other available remedies.”).

The Circuit then considered—in the first instance—whether the expropriation exception

provides a basis for waiver of the sovereign immunity otherwise enjoyed by defendants under

“the FSIA’s default rule.” Simon I, 812 F.3d at 140.4 In applying the expropriation exception

for the benefit of plaintiffs’ then-operative First Amended Complaint, the D.C. Circuit affirmed

dismissal of plaintiffs’ non-property claims, albeit without enumerating precisely which claims it

so characterized, “because [such claims] do not come within the FSIA’s expropriation

exception,” and no other FSIA exception provided jurisdiction over the claims. Id. at 151. By

contrast, plaintiffs’ claims that “directly implicate[d]” their property rights were “claims ‘in

which rights in property taken in violation of international law’” remained at issue. Id. at 140

(quoting 28 U.S.C. § 1605(a)(3)).

Despite recognizing that a sovereign’s expropriation of its own nationals’ property is

ordinarily not a violation of international law under the “so-called ‘domestic takings rule,’”

Simon I, 812 F.3d at 144, the Circuit construed plaintiffs’ claims as not asserting a “basic

international-law expropriation claim” to which the domestic takings rule would apply, id. at

145. In novel reasoning not presented to this Court for consideration in Simon-2014, the Circuit

found that “[e]xpropriations undertaken for the purpose of bringing about a protected group’s

physical destruction qualify as genocide.” Id. at 143.5 In other words, the Circuit saw “the

4
The D.C. Circuit explained its interest in opining on issues not resolved by this Court as follows: “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.” Simon I, 812 F.3d at 140.
5
Plaintiffs’ briefing before the D.C. Circuit scarcely addressed this reasoning either. While plaintiffs in their
Simon I reply brief suggested that the domestic takings rule did not apply to the takings at issue here “because such

9
expropriations as themselves genocide,” id. at 142 (emphasis in original), based on “[t]he legal

definition of genocide” set out in the Convention on the Prevention and Punishment of the Crime

of Genocide (Genocide Convention) art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, and other

international treaties, Simon I, 812 F.3d at 143. See also id. at 144 (“[T]he complaint describes

takings of property that are themselves genocide within the legal definition of the term.”

(emphasis in original)).6 The relevant international law violated by defendants’ actions was

therefore, in the Circuit’s view, not that of expropriations of property but rather that of

genocide—where “[t]he domestic takings rule has no application.” Id. “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.” Id. at 145 (alteration in

original) (quoting 28 U.S.C. § 1605(a)(3)).

The Circuit then turned—again in the first instance—to the “commercial-activity nexus

requirement[]” of the expropriation exception, which, on a “general level, . . . require[s]: (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.” Simon I, 812 F.3d at 146.

Plaintiffs’ allegations that Hungary and MÁV “liquidated the stolen property, mixed the

resulting funds with their general revenues, and devoted the proceeds to funding various

governmental and commercial operations” were found to “raise a ‘plausible inference[]’ that the

policies were racially discriminatory,” Reply Br. Appellants (“Simon I Pls.’ Reply”) at 9, Simon I, 812 F.3d 137 (No.
14-7082), and observed in a footnote that “[s]tarting with the Nuremberg Tribunal judgments after World War II, the
nationality exception has been held to be unavailable where the subject conduct constitutes a crime against
humanity, including genocide and discrimination against a group on racial, ethnic or religious grounds,” id. at 9 n.6,
they did not argue that the expropriations themselves amounted to genocide.
6
Commentators have expressed concerns that the theory of genocidal expropriation articulated in Simon I
represents a problematic expansion of the expropriation exception’s scope. See Simon-2020, 443 F. Supp. 3d at 96
n.3 (collecting academic perspectives). Notably, even plaintiffs themselves described the takings at issue as “in
furtherance of a comprehensive program of genocide” rather than as genocide in and of themselves. Br. Appellants
(“Simon I Pls.’ Br.”) at 28, Simon I, 812 F.3d 127 (D.C. Cir. 2016) (No. 14-7082).

10
defendants retain the [plaintiffs’] property or proceeds thereof” and were found to be sufficient,

as a matter of law, to show the requisite commercial-activity nexus and defeat the motion to

dismiss. Id. at 147 (first alteration in original). While cautioning that plaintiffs ultimately “may

or may not be able to prove the point” outside the posture of a motion to dismiss, id. (citation

omitted), at this procedural juncture, the Circuit held that “[b]ecause 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,” id. at 147–48 (second alteration in original)

(quoting 28 U.S.C. § 1605(a)(3)). With respect to Hungary, however, “the complaint’s

allegations about Hungary’s commercial activity fail to demonstrate satisfaction of

§ 1605(a)(3)’s nexus requirement” because plaintiffs “put forward only [] bare, conclusory

assertion[s]” to support their claim, causing the Circuit to affirm this Court’s judgment of

dismissal of the claims against Hungary in Simon-2014, id. at 148, albeit on different grounds.

Although rejecting the use of the treaty exception and holding that plaintiffs’ “property-

based claims” could be brought under the expropriation exception, the Circuit affirmed this

Court’s dismissal in Simon-2014 of “plaintiffs’ non-property claims” but for a different reason:

“they do not come within the FSIA’s expropriation exception.” Simon I, 812 F.3d at 151.7

Noting that courts “make FSIA immunity determinations on a claim-by-claim basis,” the Circuit

stated that the exception “applies only to claims implicating ‘rights in property.’” Id. at 141

(emphasis in original) (quoting 28 U.S.C. § 1605(a)(3)). “The exception therefore affords no

avenue by which to ‘bring claims for personal injury or death’—or any other non-property-based

7
In Simon-2014, this Court had no occasion to address explicitly the “non-property claims” because of its
decision that the treaty exception, as triggered by the 1947 Treaty, preserved sovereign immunity against Hungary
and MÁV with respect to all claims. As such, Simon I’s partial affirmance is best read as concurring in the
judgment of dismissal as to certain claims because, although the treaty exception did not foreclose them, the FSIA’s
general grant of immunity as to those claims was not overcome by the expropriation exception, which does not
cover “non-property claims.”

11
claims.” Id. (quoting Abelesz, 692 F.3d at 697). It thus “affirm[ed] the district court’s

determination that it lacked jurisdiction over those claims,” id., but left for this Court on remand

to “determine precisely which of the plaintiffs’ claims” those were, id. at 142.8

Finally, despite reversing Simon-2014, the Circuit did not foreclose the possibility that

dismissal of the property-based claims in the suit was the appropriate result and expressly “le[ft]

it to the district court to consider on remand” such questions as “whether, as a matter of

international comity, the court should decline to exercise jurisdiction unless and until the

plaintiffs exhaust available Hungarian remedies,” Simon I, 812 F.3d at 149, and “any other

arguments that [the district court] has yet to reach and that are unaddressed [by the Circuit], such

as the defendants’ forum non conveniens arguments,” id. at 151. The question of an exhaustion

requirement predicated on international comity was not before the Circuit in Simon I, but the

Circuit sua sponte introduced this potential defense to plaintiffs’ claims as a hypothetical

argument defendants “could”—but did not—assert. Id. at 149. In introducing that possible

ground for dismissal for the district court to consider “should the defendants assert it,” the

Circuit highlighted that the Seventh Circuit had found a comity-based “prudential argument to be

persuasive in closely similar circumstances.” Id. (citing Fischer v. Magyar Államvasutak Zrt.,

777 F.3d 847, 859–66 (7th Cir. 2015)).9

3. Simon-2017

On remand, plaintiffs addressed the Circuit’s critique of the complaint’s spare, if any,

allegations of Hungary’s commercial activity nexus to the United States and, with defendants’

8
The question of which claims were property-related claims was next visited in Simon-2020. By that time,
the Second Amended Complaint had winnowed down the set of claims somewhat, such that this Court could readily
conclude that the then-pressed claims all unambiguously implicated property rights. See Simon-2020, 443 F. Supp.
3d at 100–01.
9
Neither the United States nor any other amici participated in Simon I.

12
consent, see Joint Stipulation & Proposed Scheduling Order, ECF No. 117, “amended their

complaint to allege specific facts regarding Hungary’s ongoing commercial activity in the United

States, including, among other things, . . . ‘[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.” Simon II, 911 F.3d at 1179

(alteration in original) (quoting SAC ¶ 101). Defendants then moved to dismiss the Second

Amended Complaint, which motion this Court granted as to both defendants, Hungary and

MÁV. See Simon-2017, 277 F. Supp. 3d 42. As expressly invited by the Circuit in Simon I, 812

F.3d at 149, 151, this Court examined the motion through the lens of international comity

considerations and the forum non conveniens doctrine, concluding that “the prudential

exhaustion and forum non conveniens doctrines both provide a compelling basis for ‘declin[ing]

to exercise jurisdiction.’” Simon-2017, 277 F. Supp. 3d at 53 (alteration in original) (quoting

Simon I, 812 F.3d at 149).10

With respect to prudential exhaustion, this Court endorsed the principle, articulated by

the Seventh Circuit in Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012)—a case

the D.C. Circuit had cited with approval in Simon I at various points in its analysis—and Fischer

v. Magyar Államvasutak Zrt, 777 F.3d 847 (7th Cir. 2015), that when plaintiffs allege “a taking

in violation of international law where international law favors giving a state accused of taking

property in violation of international law an opportunity to redress it by its own means, within

the framework of its own legal system,” Simon-2017, 277 F. Supp. 3d at 53 (quotation marks and

citation omitted), “‘principles of international comity make clear that these plaintiffs must

10
The grant of dismissal in Simon-2017 was solely prudential in character and expressly was not predicated
on sovereign immunity. 277 F. Supp. 3d at 52 n.6.

13
attempt to exhaust domestic remedies,’ except where those remedies are ‘futile or imaginary,’”

id. at 54 (quoting Fischer, 777 F.3d at 852, 858). “The prudential exhaustion doctrine recognizes

the risks of unnecessarily infringing on the sovereignty of a foreign nation while also

guaranteeing that the plaintiffs are afforded an adequate forum for their claims,” this Court

wrote, because dismissal on international comity grounds would be without prejudice and United

States courts could revisit the matter “‘[i]f plaintiffs find that future attempts to pursue remedies

in Hungary are frustrated unreasonably or arbitrarily.’” Id. at 56 (quoting Fischer, 777 F.3d at

852).

Applying the Fischer inquiry to this case, this Court found that international comity

considerations here militated in favor of requiring plaintiffs to exhaust Hungarian remedies,

Hungarian fora offered an adequate alternative, and plaintiffs’ pursuit of their claims in Hungary

would not be futile. Simon-2017, 277 F. Supp. 3d at 53–62. Accordingly, following the same

steps taken by the Seventh Circuit in Fischer, which also had Hungarian agency defendants, this

Court concluded that “this lawsuit must be dismissed, without prejudice, on the ground of

prudential exhaustion.” Id. at 62.

The related forum non conveniens analysis also provided an “alternative prudential basis

for dismissal.” Simon-2017, 277 F. Supp. 3d at 62. As a threshold matter, the finding that

pursuing claims in a Hungarian forum would not be futile “satisfie[d] the first prong of the test

for application of the forum non conveniens doctrine,” namely “that Hungary is both an available

and adequate alternative forum.” Id. at 63. The Court then proceeded through the analysis of the

well-established factors governing forum non conveniens decisions.

First, while recognizing that plaintiffs’ choice of forum is due “substantial deference,” the

Court reminded that the deference to be accorded that choice “is lessened when the plaintiff’s

14
ties to the forum are attenuated.” Simon-2017, 277 F. Supp. 3d at 63 (citing Friends for All

Children, Inc. v. Lockheed Aircraft Corp., 717 F.2d 602, 605 (D.C. Cir. 1983)). Observing that

only a minority of the named plaintiffs reside in, and are citizens of, the United States; that “none

of the underlying facts in [the] case relate to the United States”; that international travel would be

required for plaintiffs regardless of venue; and that it is disfavored to require sovereign

defendants “to defend themselves in the courts of another sovereign against claims brought by

plaintiffs from all over the globe,” the Court concluded that “[i]n these circumstances, the

plaintiffs’ choice of forum is entitled to minimal deference.” Id. at 63-64 (citing other cases

where similar circumstances had “overcome the presumption” attached to plaintiffs’ choice of

forum: Fischer, 777 F.3d at 871, and Moscovits v. Magyar Cukor Rt., 34 F. App’x 24, 26 (2d

Cir. 2002)).

With respect to the private interest factors, the likely location of relevant records, the

Hungarian language thereof, the location of witnesses, and the availability of jurisdiction over

dismissed defendant RCH all “weigh strongly in favor of dismissing this lawsuit.” Simon-2017,

277 F. Supp. 3d at 64–65. As to the public interest factors, Hungary “has an interest in every

part of the litigation, and has a moral interest, if not obligation, to hear the plaintiffs’ claims and

provide them appropriate relief.” Id. at 66. Furthermore, Hungarian law would likely apply. Id.

at 66–67. Finally, the Court recognized the substantial administrative burden that would be

borne by any court hearing this case, which “is not a typical, garden variety lawsuit,” but

observed that “[t]hose burdens would be somewhat lessened on the Hungarian courts, based on

Hungary’s status as the location where all of the conduct giving rise to this litigation occurred,

with familiarity with the language and proximity to archived documents and available

witnesses.” Id. at 67 (citation omitted). In sum, the public and private interest factors

15
“weigh[ed] uniformly and heavily in favor of Hungary as the more appropriate forum for this

lawsuit,” warranting dismissal under the forum non conveniens doctrine. Id.

4. Simon II

Over a year later, a divided panel of the D.C. Circuit reversed and remanded Simon-2017.

Simon II, 911 F.3d at 1190.11

Before issuing its decision and immediately after oral argument in Simon II, the Circuit

invited the United States to opine on the prudential bases for dismissal implicated in the case.

See Order, Simon II, No. 17-7146 (Apr. 20, 2018) (per curiam). In response, the government

posited that both the international comity and forum non conveniens doctrines “can properly be

applied in appropriate circumstances to dismiss claims brought under the expropriation exception

to immunity in the [FSIA],” but declined to “take a position on the specific application of those

doctrines to the facts of this case.” Br. Amicus Curiae U.S. (“Simon II U.S. Br.”) at 1, Simon II,

911 F.3d 1172 (No. 17-7146).12 The government rejected the notion that federal courts have an

obligation to hear cases “in circumstances where, for example, such litigation would be at odds

with the foreign policy interests of the United States and the sovereign interests of a foreign

11
The Circuit rejected, however, plaintiffs’ request to reassign the case on remand, noting that the standard
for reassignment had “not remotely been met” and that there was “no evidence that” the undersigned “acted with
anything but impartiality in this case.” Simon II, 911 F.3d at 1190.
12
The government critiqued this Court’s invocation of prudential exhaustion grounds for dismissal in Simon-
2017 not because it believed that analysis to be erroneous, but rather because in its view “significant questions as to
the court’s subject matter jurisdiction” worthy of resolution were presented—even after Simon I—before turning to
prudential bases for dismissal. Simon II U.S. Br. at 13–14. Echoing concerns from the academy, see supra note 6,
the government took issue with Simon I’s holding that plaintiffs’ allegations “that the Hungarian defendants
liquidated the stolen property, mixed the resulting funds with their general revenues, and devoted the proceeds to
funding various governmental and commercial operations . . . suffice to raise a ‘plausible inference[]’ that the
defendants retain the property or proceeds thereof,” 812 F.3d at 147 (alteration in original), and expressed
reservations about satisfaction of the commercial nexus requirement for the expropriation exception, noting that
“deeming allegations that the Republic of Hungary seized and liquidated property abroad and commingled it with
general revenues in its treasury abroad many decades ago to be sufficient to treat any state-owned property in the
United States as ‘exchanged’ for expropriated property would expand the expropriation exception far beyond its
intended limits.” Simon II U.S. Br. at 23.

16
government.” Id. at 12; see also id. at 18 (“[T]he fact a district court has jurisdiction under the

FSIA’s expropriation exception does not foreclose dismissal on the grounds of international

comity. . . . Nothing in the text or history of the FSIA suggests that it was intended to foreclose

application of [that] doctrine[], or to require a court to exercise jurisdiction in every case.”).

Plainly not persuaded by the government’s position, the Simon II panel flatly rejected the

prudential exhaustion approach adopted by the Seventh Circuit and highlighted positively by a

different D.C. Circuit panel in Simon I. See Simon I, 812 F.3d at 149 (citing Fischer, 777 F.3d at

859–66).13 Simon II held that principles of international comity, as contemplated by the

“prudential exhaustion” analysis in Simon-2017, should not afford an “extra-textual, case-by-

case judicial reinstatement of immunity that Congress expressly withdrew” through the FSIA’s

“‘comprehensive’ standards governing ‘every civil action.’” Simon II, 911 F.3d at 1180–81

(quoting Philipp v. Federal Republic of Germany, 894 F.3d 406, 415 (D.C. Cir. 2018), vacated,

141 S. Ct. 703 (2021)). The Circuit observed that the “prudential exhaustion” theory differed

from “exhaustion” in the traditional sense because “the Survivors’ right to subsequent judicial

review here of the Hungarian forum’s decision” could be jeopardized “by operation of res

judicata” and, as such, use of the theory “in actuality amount[s] to a judicial grant of immunity

from jurisdiction in United States courts.” Id. at 1180. Leaning on its then-recent holding in

Philipp v. Federal Republic of Germany—which post-dated this Court’s opinion in Simon-2017

but has since been vacated by the Supreme Court—that “nothing in the FSIA or federal law

empowers the courts to grant a foreign sovereign an immunity from suit that Congress, in the

FSIA, has withheld,” id. at 1180 (citing Philipp, 894 F.3d at 414–15), the Circuit held, “courts

13
The composition of the D.C. Circuit panels deciding Simon I (Judges Henderson, Srinivasan, and Wilkins)
and Simon II (Judges Millett, Pillard, and, dissenting, Katsas) did not overlap.

17
are duty bound to enforce the standards outlined in the [FSIA]’s text” and may not decline to

exercise jurisdiction on prudential exhaustion or international comity grounds, id. at 1181.

The Circuit also held that while “the ancient doctrine of forum non conveniens is not

displaced by the FSIA,” Simon II, 911 F.3d at 1181, the doctrine did not warrant dismissal here

because defendants had failed to meet their “heavy burden of persuasion” in establishing

Hungary as a preferred forum over the United States forum chosen by plaintiffs, id. at 1183.

Citing “a number of legal errors” in Simon-2017 that, in its view, “so materially distorted

[Simon-2017’s] analysis as to amount to a clear abuse of discretion,” Simon II, 911 F.3d at 1182,

the majority panel found that: (1) Simon-2017 “set the scales wrong from the outset” by

“affording the Survivors’ choice of forum only ‘minimal deference,’” id. at 1183 (quoting

Simon-2017, 277 F. Supp. 3d at 63); (2) Simon-2017’s determination of the adequacy of the

Hungarian forum, borrowed from the prudential exhaustion analysis, improperly shifted the

burden of proof from defendants to plaintiffs and thus “never analyzed the critical question of the

availability and adequacy of the Hungarian forum,” id. at 1184–85; and (3) “[t]he consequences

of the district court’s burden-allocation errors snowballed” in the balancing of the public and

private interests across the two forum options such that the factors did not “strongly favor[]

dismissal,” id. at 1185 (emphasis and alteration in original) (quoting Agudas Chasidei Chabad of

U.S. v. Russian Federation, 528 F.3d 934, 950 (D.C. Cir. 2008)), “mak[ing] this among ‘the rare

case[s]’ in which a district court’s balancing of factors amounts to an abuse of discretion,” id.

(second alteration in original) (quoting Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018) (per

curiam)).

Writing in a clear-eyed dissent, Judge Katsas dissected the “mistaken argument” by the

panel majority underlying its finding of a purported “snowball” of errors, Simon II, 911 F.3d at

18
1193 (Katsas, J., dissenting), to conclude that Simon-2017’s forum non conveniens determination

that this case “should be litigated in Hungary” was appropriate in “this foreign-cubed case—

involving wrongs committed by Hungarians against Hungarians in Hungary,” id. at 1190.

Simon-2017, according to Judge Katsas, “correctly stated the governing law and reasonably

weighed the competing considerations in this case.” Id. at 1195. First, the Simon-2017

description of plaintiff’s choice of an American forum as deserving “‘minimal deference’” was

best read as a “considered conclusion that the ‘defendants had overcome the presumption’” of

such deference, id. at 1191 (quoting Simon-2017, 277 F. Supp. 3d at 63, 64), rather than as a

“threshold legal error of ‘set[ting] the scales wrong from the outset,’” id. (quoting Simon II, 911

F.3d at 1183 (majority opinion) (alteration in original)). Second, Simon-2017 did not improperly

shift the burden of demonstrating adequacy of the Hungarian forum to plaintiffs because Simon-

2017 “assessed futility as a matter of law, based on undisputed assertions in both [parties’]

affidavits.” Simon II, 911 F.3d at 1192 (Katsas, J., dissenting). Finally, Judge Katsas found this

Court’s assessment of the private and public interest factors to be reasonable at every step. See

id. at 1193–95. Notably, in discussing the interest of the United States in ensuring compensation

to Holocaust victims, Judge Katsas highlighted the government’s position that this interest is best

advanced “by encouraging parties ‘to resolve matters of Holocaust-era restitution and

compensation through dialogue, negotiation, and cooperation,’ not by sweeping foreign-centered

cases into United States courts.” Id. at 1195 (quoting Simon II U.S. Br. at 10).

5. Simon-2020

On remand again from the Circuit, defendants filed a third motion to dismiss, which this

Court denied on March 11, 2020. Simon-2020, 443 F. Supp. 3d 88. With multiple overarching

grounds for dismissal having been rejected by the Circuit in Simon I and Simon II, which also

created binding law of the case, Simon-2020 addressed two comparatively narrow questions
19
relating to the requirements for invoking the expropriation exception to the FSIA: first, “which

of the plaintiffs’ claims place rights in property in issue”; and second, whether “one of two

commercial-activity nexuses with the United States [are] satisfied” as to each of the two

defendants. 443 F. Supp. 3d at 99–100 (citation omitted). With respect to the first question, “no

party addressed whether each claim directly implicates a property interest, which amounts to an

obvious concession by the defendants,” id. at 100, and, in any event, each of the claims in the

Second Amended Complaint expressly invoked references to property, id. at 100–01. As to the

second question, Simon-2020 noted that “the commercial-nexus analysis differs for Hungary and

for MÁV,” id. at 101 (citing de Csepel v. Republic of Hungary, 859 F.3d 1094, 1106–07 (D.C.

Cir. 2017)), and as such proceeded to evaluate each defendant separately, id. at 102.14

With respect to Hungary, the Court first found that the Second Amended Complaint

presented allegations of Hungary’s possession and use of commingled proceeds from the sale of

expropriated property, sufficient to “raise a plausible inference that” Hungary possesses such

property, and that Hungary failed to defeat that inference. Simon-2020, 443 F. Supp. 3d at 103–

05.15 The Court then credited the sufficiency of plaintiffs’ allegations that Hungary engages in

commercial activity in the United States by, inter alia, issuing certain SEC-regulated bonds and

purchasing military equipment. Id. at 106–11.

14
The FSIA expropriation exception may apply to a foreign state defendant only when 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). In contrast, for an “agency or
instrumentality of [a] foreign state,” the exception requires that the property in issue “or any property exchanged for
such property is owned or operated by [the] agency or instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the United States.” Id.
15
According to the D.C. Circuit in Simon I, to defeat the inference of possession by way of commingled
proceeds of liquidation, a defendant bears the burden of “affirmatively showing that the property was otherwise
disposed of and not retained,” Simon-2020, 443 F. Supp. 3d at 105 (citing Simon I, 812 F.3d at 147), which as a
practical matter becomes all the more onerous a burden given the passage of decades, compounded by regime and
records management changes in Hungary.

20
As to MÁV, Simon-2020 invoked the D.C. Circuit’s “firm finding” in Simon I that MÁV

satisfied the commercial nexus requirement “based on the allegation that MÁV maintains an

agency for selling tickets, booking reservations, and conducting similar business in the United

States.” Simon-2020, 443 F. Supp. 3d at 111 (quoting Simon I, 812 F.3d at 147) (internal

quotation marks omitted). Under the law of the case doctrine, in the D.C. Circuit, this prior

holding “may be revisited only if there is an intervening change in the law or if the previous

decision was ‘clearly erroneous and would work a manifest injustice.’” Id. (quoting Kimberlin v.

Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999)). No relevant intervening change in law had taken

place in the time between Simon I and Simon-2020. Id. at 112. In a detailed exposition

examining the relationship between MÁV and its subsidiary MÁV-START, the latter of which

engaged in commercial activity by selling passenger rail tickets in the United States, the Court

concluded that no new facts or arguments were “persuasive, let alone sufficient to show that the

Circuit’s prior finding as to MÁV’s commercial nexus should be set aside as clearly erroneous or

manifestly unjust.” Id. at 112–16.

Finding that all elements of the FSIA’s expropriation exception were satisfied as to both

Hungary and MÁV, this Court denied defendants’ motion to dismiss. See Simon-2020, 443 F.

Supp. 3d at 116. Defendants appealed to the D.C. Circuit, but without appellate consideration of

the merits of that appeal, the case was remanded to this Court, without further direction, in light

of subsequent Supreme Court developments, discussed next. See Order, Simon v. Republic of

Hungary, No. 20-7025 (D.C. Cir. Apr. 28, 2021) (per curiam).

6. Defendants’ Petition for Certiorari

With briefing underway on defendants’ third motion to dismiss before this Court

(ultimately resolving in Simon-2020), on May 16, 2019, defendants petitioned the Supreme

Court for review of Simon II as to: (1) whether a district court may abstain from hearing an FSIA
21
case for international comity reasons, and (2) the degree of deference due plaintiffs’ choice of

forum and comity considerations when a court performs a forum non conveniens analysis. Pet.

Cert. at i, Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (No. 18-1447).16

In a separate but similar case involving the allegedly forced sale of a “collection of

medieval reliquaries” by German Jews to a Nazi-controlled state entity, defendants including the

Federal Republic of Germany (“Germany”) petitioned for review of a D.C. Circuit decision

affirming the denial of the defendants’ motion to dismiss under the FSIA. Germany presented

two questions: (1) whether the domestic takings rule applies to the FSIA expropriation exception

when plaintiffs allege that the foreign sovereign “violated international human-rights law when

taking property from its own national[s] within its own borders”; and (2) whether or not the

doctrine of international comity applies in FSIA cases. See Pet. Cert. at i, 6–7, Federal Republic

of Germany v. Philipp, 141 S. Ct. 703 (2021) (No. 19-351).

Responding to calls by the Supreme Court for the views of the Solicitor General, the

United States argued that the international comity question, presented in both cases, warranted

review because, in its view, the D.C. Circuit’s erroneous opinions in Simon II and Philipp

created a split between circuits and jeopardized the United States’ “important foreign-policy

interests,” which “may be particularly sensitive where the claims allege serious human rights

abuses on the part of a foreign state.” U.S. Cert. Br. at 19–22, Philipp, 141 S. Ct. 703 (No. 19-

351). Further, the government urged review of the domestic takings rule question raised in

Philipp, arguing that the rule created by the D.C. Circuit in Simon I—in which the government

16
In response to an inquiry from this Court, see Min. Order (Jan. 6, 2020), the parties disagreed as to whether
proceedings in the district court—specifically, the resolution of the third motion to dismiss—should be stayed on
account of the pending petition for certiorari, see Joint Status Report, ECF No. 153; Suppl. Joint Status Report, ECF
No. 154, and this Court therefore proceeded to issue Simon-2020. See Simon-2020, 443 F. Supp. 3d at 98 n.5.

22
did not participate—was “flawed” and also has “significant foreign policy implications.” See id.

at 7–8, 14.

On July 2, 2020, the Supreme Court granted certiorari to review Simon II with respect to

only the first question presented—international comity-based abstention. Republic of Hungary v.

Simon, 141 S. Ct. 187 (2020). On the same day, the Court granted certiorari without limitation in

Philipp, 141 S. Ct. 185 (2020), as to both the international comity question and the domestic

takings rule question. The latter question directly implicated the D.C. Circuit’s holding in

Simon I—on which defendants had not sought certiorari—that the domestic takings rule does not

limit the reach of the FSIA’s expropriation exception when the takings at issue are “themselves

genocide,” 812 F.3d at 144 (emphasis in original).

In merits briefing, the United States continued to argue against the D.C. Circuit’s

decisions in Simon II and Philipp. See generally U.S. Br. (“Philipp Sup. Ct. U.S. Br.”), Philipp,

141 S. Ct. 703 (No. 19-351); U.S. Br. (“Simon Sup. Ct. U.S. Br.”), Simon, 141 S. Ct. 691 (No.

18-1447). In addition to pressing its doctrinal arguments, as relevant here, the government

suggested two policy reasons militating in favor of allowing courts to abstain from hearing cases

on the basis of international comity. First, “comity-based abstention aids in the United States’

efforts to persuade foreign partners to establish appropriate redress and compensation

mechanisms for human-rights violations, including for the horrendous human-rights violations

perpetrated during the Holocaust.” Simon Sup. Ct. U.S. Br. at 26. Second, the government

argued that the D.C. Circuit’s expansive view of the expropriation exception (as articulated in

Simon I and again in Philipp) endangers the government’s “reciprocal self-interest.” Philipp

Sup. Ct. U.S. Br. at 29. “Because ‘some foreign states base their sovereign immunity decisions

on reciprocity,’ it is generally in the United States’ interest to avoid adopting broad exceptions to

23
foreign sovereign immunity that are inconsistent with the immunity protections that would be

afforded under principles of international law generally accepted by other nations.” Id. (citations

omitted).

7. Supreme Court’s Decision in Federal Republic of Germany v. Philipp

The Supreme Court issued its opinion in Federal Republic of Germany v. Philipp on

February 3, 2021. 141 S. Ct. 703. The bulk of the Court’s opinion was devoted to the first

question presented in the Philipp petition, namely, “whether a country’s alleged taking of

property from its own nationals falls within” the FSIA expropriation exception. Id. at 707–08.

In Philipp, plaintiffs asserted that Hitler deputy Hermann Goering “employed a combination of

political persecution and physical threats to coerce” German Jewish art dealers to sell a

collection of relics to Prussia, of which Goering was Prime Minister, well under their actual

value. Id. at 708. Echoing the D.C. Circuit’s novel conclusion in Simon I, the plaintiffs argued

to the Supreme Court that this purchase was itself an act of genocide. Id. at 709. Indeed, citing

Simon I, the Circuit panel in Philipp had determined that “the [expropriation] exception for

property taken in violation of international law was satisfied because ‘genocide perpetrated by a

state even against its own nationals is a violation of international law.’” Philipp, 141 S. Ct. at

709 (quoting Philipp, 894 F.3d at 410–11 (quoting Simon I, 812 F.3d at 145)). In other words,

plaintiffs contended that the domestic takings rule did not apply to such a genocidal taking of

property.

A unanimous Supreme Court disagreed. The Court first traced the historical origins of

the domestic takings rule, starting with the premise that “a sovereign’s taking of a foreigner’s

property, like any injury of a foreign national, implicate[s] the international legal system because

it ‘constituted an injury to the state of the alien’s nationality.’” Philipp, 141 S. Ct. at 710

(citation omitted). “The domestic takings rule endured even as international law increasingly
24
came to be seen as constraining how states interacted not just with other states but also with

individuals, including their own citizens.” Id. The result was a judicial “consensus that the

expropriation exception’s reference to ‘violation of international law’ does not cover

expropriations of property belonging to a country’s own nationals.” Id. at 711 (quoting Republic

of Austria v. Altmann, 541 U.S. 677, 713 (2004) (Breyer, J., concurring)) (quotation marks

omitted).

While acknowledging plaintiffs’ argument that “the forced sale of their ancestors’ art

constituted an act of genocide because the confiscation of property was one of the conditions the

Third Reich inflicted on the Jewish population to bring about their destruction,” the Court found

it unnecessary to “decide whether the sale of the [German Jews’] property was an act of

genocide, because the expropriation exception is best read as referencing the international law of

expropriation rather than of human rights.” Philipp, 141 S. Ct. at 711–12. The international law

of expropriation at the time of the FSIA’s enactment in 1976, the Court continued, clearly

“retained the domestic takings rule.” Id. at 712. Furthermore, the text of the expropriation

exception “places repeated emphasis on property and property-related rights,” an odd drafting

choice if the exception were meant to “provide relief for atrocities such as the Holocaust.” Id.

Viewing the FSIA as a whole, the Court observed that plaintiffs’ position would upend the

FSIA’s carefully cabined grants of jurisdiction related to human rights violations by

“transforming the expropriation exception into an all-purpose jurisdictional hook for adjudicating

human rights violations.” Id. at 713–14.

While not addressing international comity per se, the Court observed the importance of

construing the FSIA “to avoid, where possible, ‘producing friction in our relations with [other]

nations and leading some to reciprocate by granting their courts permission to embroil the United

25
States in expensive and difficult litigation.’” Philipp, 141 S. Ct. at 714 (alteration in original)

(quoting Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct.

1312, 1322 (2017)). Indeed, the Court raised the specter of reciprocal consequences of allowing

U.S. courts to hear claims of this type, implying that a foreign state subjected to such jurisdiction

may well open its own courts as a forum to “adjudicate[] claims by Americans” to large sums

“because of human rights violations committed by the United States Government years ago.” Id.

By holding that the FSIA expropriation exception “incorporates the domestic takings

rule” and vacating the Circuit’s opinion accordingly, the Court did not need to reach the issue of

abstention based on international comity. Philipp, 141 S. Ct. at 715.17 The Supreme Court

vacated the D.C. Circuit’s judgment in Philipp and remanded for further proceedings. Id. at 716.

8. Vacatur of Simon II and Remand

Concurrently with the opinion in Philipp, the Supreme Court issued a brief order vacating

the judgment of the D.C. Circuit in Simon II and “remand[ing] for further proceedings consistent

with the decision in [Philipp].” Simon, 141 S. Ct. 691.

Following the rulings in Philipp and Simon, both parties separately filed a Motion to

Govern Further Proceedings in the D.C. Circuit docket for the appeal of Simon-2020. Defs.’

Mot. Govern Further Proceedings (“Defs.’ Post-Philipp Mot.”), Simon v. Republic of Hungary,

No. 20-7025 (D.C. Cir. Mar. 4, 2021); Mot. Appellees Govern Further Proceedings (“Pls.’ Post-

Philipp Mot.”), Simon, No. 20-7025 (Mar. 5, 2021). Defendants urged the Circuit to remand to

this Court with instructions to dismiss for lack of subject matter jurisdiction, in light of Philipp,

Defs.’ Post-Philipp Mot. at 1, and to vacate Simon-2020 as moot, id. at 4. Plaintiffs, for their

17
The Philipp Court also did not reach “an alternative argument” that the sale “is not subject to the domestic
takings rule because the consortium members were not German nationals at the time of the transaction.” 141 S. Ct.
at 715. On remand, the district court was to be directed to “consider this argument, including whether it was
adequately preserved.” Id. at 716.

26
part, urged the Circuit to stay the Simon-2020 appeal while the Simon II panel addressed the case

on remand from the Supreme Court. Pls.’ Post-Philipp Mot. at 2. In plaintiffs’ view, the

outstanding issue in Simon II was at that point whether some plaintiffs escape the umbrella of the

domestic takings rule on account of not having been Hungarian nationals at the time of the

takings. See id. at 4–5. Plaintiffs also responded to defendants’ proposal with a cross-motion for

affirmance of Simon II, arguing that Simon II’s international comity and forum non conveniens

analyses were undisturbed by the Supreme Court. Pls.’ Cross-Mot. Affirmance at 3, Simon, No.

20-7025 (Mar. 15, 2021).

Apparently declining plaintiffs’ invitation to reconfirm its holdings on international

comity and forum non conveniens—at least at this procedural juncture—the next day the Circuit

remanded the appeal of Simon-2017 to this Court without further comment or direction beyond

“further proceedings consistent with [Philipp]” and without discussing the extent, if any, to

which its holdings in now-vacated Simon II remained the law of the case or this Circuit. Simon

v. Republic of Hungary, 839 F. App’x 570 (D.C. Cir. 2021). Later, the Circuit also remanded the

appeal of Simon-2020 to this Court, again without further instructions. Order, Simon, No. 20-

7025 (Apr. 28, 2021) (per curiam).

In Philipp, the Supreme Court did not resolve the international comity question on which

certiorari had been granted in both Philipp and Simon II. Since Simon II did not itself concern

the domestic takings rule issue on which Philipp was decided, the end result is that while the

Simon II judgment was vacated, the apparent reason for that vacatur was not express disapproval

of any determination in the Simon II opinion but rather the Supreme Court’s holding effectively

overturning Simon I with respect to the domestic takings rule. As such, neither the Supreme

Court nor the Circuit have provided any guidance as to the current legal effect of the panel

27
majority’s opinion in Simon II—and, as discussed infra in Part III.D, the parties disagree on

whether this Court continues to be bound by Simon II or holdings in Simon I not addressed in

Philipp, such as the unavailability of the treaty exception.

9. Fourth Motion to Dismiss

Upon receipt of the mandate from the D.C. Circuit, this Court directed the parties to

propose a schedule for further proceedings. See Min. Order (Mar. 19, 2021). The parties

responded with, and the Court adopted, a proposed briefing schedule for a renewed motion to

dismiss. Joint Status Report, ECF No. 164; Min. Order (Apr. 1, 2021).

Defendants filed the pending motion to dismiss on April 23, 2021, see Hungary’s &

MÁV Magyar Államvasutak Zrt.’s Mot. Dismiss Second Am. Class Action Compl. (“Defs.’

Mot.”), ECF No. 165, for which the briefing was completed on June 21, 2021, when defendants

filed a sur-sur-reply in support of their motion to dismiss, see Hungary’s & MÁV Magyar

Államvasutak Zrt.’s Sur-Sur-Reply Mem. Further Supp. Mot. Dismiss Second Am. Class Action

Compl., ECF No. 172. Additionally, plaintiffs filed a notice of supplemental authority on July

28, 2021. Pls.’ Notice Suppl. Authority (“Pls.’ Notice”), ECF No. 173. This fourth motion to

dismiss is now ripe for resolution.

II. LEGAL STANDARD

“Federal courts are courts of limited jurisdiction,” Gunn v. Minton, 568 U.S. 251, 256

(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)), and

“have only the power that is authorized by Article III of the Constitution and the statutes enacted

by Congress pursuant thereto,” Johnson v. Comm’n on Presidential Debates, 869 F.3d 976, 980

(D.C. Cir. 2017) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). To

survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff thus

generally “bears the burden of invoking the court’s subject matter jurisdiction.” Arpaio v.
28
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992)).

When a jurisdictional skirmish “present[s] a dispute over the factual basis of the court’s

subject matter jurisdiction,” the court “must go beyond the pleadings and resolve” any dispute

necessary to the disposition of the motion to dismiss. Feldman v. FDIC, 879 F.3d 347, 351

(D.C. Cir. 2018) (quoting Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.

Cir. 2000)). In such situations, the “court may properly consider allegations in the complaint and

evidentiary material in the record,” affording the plaintiff “the benefit of all reasonable

inferences.” Id.; see also Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016) (“In

considering a motion to dismiss for lack of subject matter jurisdiction, . . . we ‘may consider

materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of

jurisdiction.’” (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.

2005))). Absent “evidentiary offering[s],” Feldman, 879 F.3d at 351, however, courts must seek

jurisdictional assurance by accepting as true all undisputed “factual allegations in the complaint

and constru[ing] the complaint liberally,” and again “granting plaintiff the benefit of all

inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (internal quotation marks and citation omitted).

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 (quoting Verlinden B.V. v. Cent. Bank

of Nigeria, 461 U.S. 480, 488 (1983)). The FSIA “provides, with specified exceptions, that a

‘foreign state shall be immune from the jurisdiction of the courts of the United States.”

Helmerich & Payne, 137 S. Ct. at 1316 (quoting 28 U.S.C. § 1604). Under the FSIA’s

29
expropriation exception, 28 U.S.C. § 1605(a)(3), however, “United States courts may exercise

jurisdiction over a foreign sovereign in any case ‘in 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.’” Philipp, 141 S. Ct. at

712 (quoting 28 U.S.C. § 1605(a)(3)); see also Helmerich & Payne, 137 S. Ct. at 1316.

Notwithstanding the general burden borne by any plaintiff to establish the subject matter

jurisdiction of the chosen court, when a plaintiff invokes the FSIA’s expropriation exception as

the basis for jurisdiction, “the defendant state ‘bears the burden of proving that the plaintiff’s

allegations do not bring its case within a statutory exception to immunity.’” Belize Soc. Dev.

Ltd. v. Gov’t of Belize, 794 F.3d 99, 102 (D.C. Cir. 2015) (quoting Phoenix Consulting, 216 F.3d

at 40).

III. DISCUSSION

In ruling on the instant motion to dismiss—the fourth in this eleven-year-old case—this

Court is not writing on an empty slate. Quite to the contrary: the legal landscape of this case is

littered with a partially reversed district court opinion (Simon-2014), a circuit court opinion

squarely abrogated in part by the Supreme Court (Simon I), a reversed district court opinion the

reversal of which was later vacated (Simon-2017), a circuit court opinion vacated by the

Supreme Court for reasons outside the scope of that opinion (Simon II), a district court opinion,

issued prior to a change in relevant governing law, appealed to but remanded by the Circuit with

no ruling on the merits (Simon-2020), a Supreme Court opinion changing the law of the

30
expropriation exception (Philipp), and a pair of terse remands of Simon-2017 and Simon-2020

from the Circuit providing little clarifying guidance. Suffice it to say that figuring out what the

law of this case is presents a challenge but is a determination that affects which of the parties’

myriad arguments raised in briefing has any purchase.

Defendants’ motion presses as many as six reasons this case should be dismissed at this

juncture: (1) the Supreme Court’s opinion in Philipp forecloses the use of the FSIA’s

expropriation exception by plaintiffs who were Hungarian nationals at the time of the takings at

issue, see Defs.’ Mem. at 17–18, including any once-Hungarian-national plaintiffs ostensibly

rendered stateless by Hungary’s concededly egregious conduct, see id. at 18–23; (2) plaintiffs are

barred from arguing that any of the named plaintiffs were never Hungarian nationals at the time

of the atrocities carried out by the Hungarian government, see id. at 23–30; (3) if this Court

nevertheless did entertain an argument that named plaintiffs were not Hungarian nationals at that

time, Simon I’s analysis of the treaty exception must change, see id. at 26–28, 28 n.18; (4) this

Court’s holding in Simon-2020 that the commercial nexus requirement has been satisfied as to

both defendants must be revisited in light of Philipp’s redefinition of property “taken in violation

of international law,” see id. at 30–38; (5) the Supreme Court’s vacatur of Simon II revives this

Court’s decision in Simon-2017 to dismiss the case on the prudential basis of international

comity, see id. at 38–41; and (6) depending on the composition of the group of named plaintiffs,

if any, whose claims survive Philipp, “it may also be appropriate for this Court to revisit the

doctrine of forum non conveniens,” id. at 41 n.25, as set out in Simon-2017, which decision was

reversed in a now vacated Simon II.

In response, plaintiffs pose at least seven counter-arguments that: (7) at least some of the

named plaintiffs were not Hungarian nationals at any point and are thus unaffected by Philipp,

31
see Pls.’ Mem. Opp’n Fourth Mot. Defs. Dismiss (“Pls.’ Opp’n”) at 25–28, ECF No. 167, and

plaintiffs are not now barred from raising this argument, see id. at 8–20; (8) even if any plaintiffs

were Hungarian nationals pre-Holocaust, they de facto ceased to be when Hungary’s treatment

stripped them of any indicia of citizenship, see id. at 21–25, thereby penetrating the shield of the

domestic takings rule, see id. at 28–34; (9) “Hungary’s collaboration with Nazi Germany

precludes Hungary’s reliance upon the domestic takings rule,” id. at 34–36; (10) the 1920 Treaty

of Trianon created international law imposing obligations on Hungary, and Hungary’s violation

thereof provides an independent basis for all plaintiffs regardless of nationality to invoke the

expropriation exception, see id. at 36–39; (11) the commercial nexus findings in Simon-2020

need not and should not be revisited, see id. at 39–40; (12) the Simon I analysis on the

inapplicability of the treaty exception as to the 1947 Treaty holds true for plaintiffs who were not

Hungarian nationals, see id. at 40–42; and (13) Simon II’s holdings regarding international-

comity-based abstention and forum non conveniens survive Philipp, see id. at 44–45.

This thicket of arguments and counter-arguments may be sorted into three broad

questions: whether then-Hungarian national plaintiffs may assert claims notwithstanding the

domestic takings rule after Philipp (in the lists above, defendants’ argument 1 and plaintiffs’

arguments 8, 9, and 10); whether any plaintiffs may maintain this action by being characterized

as not having had Hungarian nationality at the time of the takings (defendants’ 2, 3, 4; plaintiffs’

7, 11, 12); and whether prudential bases for dismissal remain available due to the Supreme

Court’s vacatur of Simon II (defendants’ 5, 6; plaintiffs’ 13).

The analysis below addresses these three questions in turn. First, the Court finds that

certain named plaintiffs have not shown anything other than Hungarian nationality at the time of

the takings, and thus their claims sit squarely within the domestic takings rule as fortified by

32
Philipp, requiring dismissal of these plaintiffs from this action with prejudice. Second, all but

one of the remaining named plaintiffs have adequately alleged facts supporting reasonable

inferences of Czechoslovakian nationality and a lack of Hungarian nationality, and the history of

this litigation does not preclude them from asserting as much at this juncture. These plaintiffs

may trigger the FSIA’s expropriation exception and survive this fourth motion to dismiss. Third,

the jurisdictional allegations concerning one named plaintiff have a level of ambiguity such that

no determination may be made as to his nationality. That last plaintiff must be dismissed, but

without prejudice to bringing an action again with more fulsome allegations. Finally, under the

D.C. Circuit’s rules governing the precedential weight of its own vacated opinions, Simon II’s

holdings on international comity and forum non conveniens remain the law of the Circuit. This

Court therefore cannot again entertain these prudential reasons to abstain from exercising

jurisdiction.

A. Claims by Plaintiffs of Hungarian Nationality at the Time of the Takings
Must Be Dismissed

Four named plaintiffs—Zehava Friedman (“Zehava”), Vera Deutsch Danos (“Vera”),

Ella Feuerstein Schlanger (“Ella”), Tzvi Zelikovitch (“Tzvi”)—must be dismissed from this case

because they have not alleged facts or adduced evidence suggesting that they were not Hungarian

nationals at the outset of the Holocaust. The Supreme Court’s opinion in Philipp, partially

overruling Simon I, precludes reliance on the egregiousness or genocidal nature of expropriative

conduct as a means to escape the limitation of the domestic takings rule. Philipp is also

irreconcilable with plaintiffs’ argument that statelessness induced by genocidal conduct removes

such conduct from the confines of the domestic takings rule.

33
1. After Philipp, the Domestic Takings Rule Bars Claims by Plaintiffs
Then of Hungarian Nationality

In Philipp, as discussed in Part I.B.7, supra, the Supreme Court held that “the phrase

‘rights in property taken in violation of international law,’ as used in the FSIA’s expropriation

exception, refers to violations of the international law of expropriation and thereby incorporates

the domestic takings rule.” 141 S. Ct. at 715. “This ‘domestic takings rule’ assumes that what a

country does to property belonging to its own citizens within its own borders is not the subject of

international law.” Id. at 709 (emphasis added). At the time the FSIA was enacted in 1976—the

relevant context when interpreting the FSIA—“[a] ‘taking of property’ could be ‘wrongful under

international law’ only where a state deprived ‘an alien’ of property.” Id. at 712 (quoting

RESTATEMENT (SECOND) OF FOREIGN RELS. L. U.S. § 185 (Am. L. Inst. 1965)); see also id.

(noting the Court’s “consistent practice of interpreting the FSIA in keeping with ‘international

law at the time of the FSIA’s enactment’ and looking to the contemporary Restatement for

guidance” (quoting Permanent Mission of India to the United Nations v. City of New York, 551

U.S. 193, 199–200 (2007))). This holding categorically rejected the D.C. Circuit’s rule in

Simon I, mirrored in the Circuit’s Philipp opinion, “that the exception for property taken in

violation of international law” is satisfied by genocidal takings “because ‘genocide perpetrated

by a state even against its own nationals is a violation of international law.’” Id. at 709 (quoting

Philipp, 894 F.3d at 410–11 (quoting Simon I, 812 F.3d at 145)).

The parties do not dispute that with respect to plaintiffs who were Hungarian nationals at

the time their property was expropriated by defendants, Philipp precludes such plaintiffs from

invoking the expropriation exception as a basis to abrogate the FSIA’s default grant of foreign

sovereign immunity to Hungary and MÁV. See Defs.’ Mem. at 17–18; Pls.’ Opp’n at 7. As

34
such, plaintiffs correctly identify “the cardinal issue now before this Court” is whether the named

plaintiffs were Hungarian nationals at the relevant time. Pls.’ Opp’n at 8.

2. Once-Hungarian National Plaintiffs Arguably Rendered Stateless
Cannot Circumvent the Domestic Takings Rule

Plaintiffs vigorously argue that Hungary’s conduct towards its Jewish population

rendered the named plaintiffs and others de facto stateless. See Pls.’ Opp’n at 29. The summary

plaintiffs offer of this campaign is wrenching and deserves reprinting in full:

[T]he “dejewification” process began as early as 1920, continuing
through the enactment of the three Anti-Jewish Laws in 1938,
1939 and 1941, the issuance of confiscatory and denationalizing
decrees from 1942 to 1943 and culminating in 1944 in the ultimate
de facto abnegation of their citizenship/nationality. That is when
Hungary threw its Jewish inhabitants out of their homes,
expropriated all of their movable and immovable property, forced
them into ghettos, forcibly packed them like animals into cattle
cars and shipped—that is, deported—them outside the borders of
Hungary into the custody and control of another sovereign (Nazi
Germany), knowing that these persons, whom Hungary now dares
to call its nationals, would be transported to Auschwitz and other
concentration and death camps outside Hungary to be gassed and
turned into smoke and ash.

Id. (citing Decl. of Gavriel Bar-Shaked, Ph.D. (“Bar-Shaked Decl.”) ¶ 28, ECF No. 167-2; and

Paul Abel, Denationalization, 6 MODERN L. REV. 57, 64-65 (1942)). “As a matter of

international law, a state that marks, despoils, expropriates, ghettoizes, deports, and murders its

own nationals in violation of international law—in short, subjects them to genocide—breaks the

genuine connection of reciprocal rights and duties on which nationality is premised.” Id. at 29–

30 (citations and internal quotation marks omitted). The egregiousness of the human rights

abuses reflected in these events is obvious and cannot be overstated but, as a legal matter, the

repercussions for the fact-specific inquiry of nationality, which after Philipp is now key for the

exercise of jurisdiction under the FSIA expropriation exception, is disputed by the parties and

not previously explicitly resolved in this case.

35
Defendants nominally dispute that Hungary’s actions rendered plaintiffs stateless, but do

not advance any substantive arguments for this position. See Defs.’ Mem. at 20 (offering only

the conclusory assertion that “Hungary disputes” the “contention that [plaintiffs] were rendered

stateless”); see also Defs.’ Reply Mem. Further Supp. Mot. Dismiss Second Am. Class Action

Compl. (“Defs.’ Reply”) at 8–9, ECF No. 168 (indicating that “Plaintiffs’ Claims of

Statelessness Fail As a Matter of Law” but again only arguing that this induced de facto

statelessness, even if true, does not provide a basis for invoking the expropriation exception).

Plaintiffs, for their part, misleadingly suggest that Hungary conceded this possibility, claiming

that “Hungary recognizes that those Survivors who may once have been Hungarian citizens . . .

may have been denationalized de facto.” Pls.’ Opp’n at 28. As support, plaintiffs quote a

remark in defendants’ opening brief that in fact merely acknowledges that “Plaintiffs argued”

before the Supreme Court that they should have a chance to present a denationalization theory on

remand. Id. at 28–29 (purportedly quoting Defs.’ Mem. at 29).18 In any event, this is a

complicated question, requiring deep consideration of what it means to be a “citizen” or

“national” of a sovereign state, and the parties’ cross-talk complicates matters further,

particularly in the absence of any formal official actions by Hungary revoking the label of

“citizen” from its Jewish residents. In contrast, plaintiffs point out that “Germany stripped all

Jews of their citizenship in 1941,” Pls.’ Opp’n at 7 n.4, highlighting that Hungary’s conduct may

differ from Germany’s for legal purposes—though as a practical matter for the numerous victims

in both countries, this distinction may have meant little.

18
Such an acknowledgment by defendants of the existence of plaintiffs’ procedural argument cannot
reasonably be viewed as an endorsement of plaintiffs’ related substantive argument. On top of this
mischaracterization, the citation is incorrect. The cited page (p. 29) of defendants’ memorandum contains no text
matching plaintiffs’ “quotation,” which is instead on pages 18–19 of that brief. This discrepancy would not be
especially noteworthy were it not the case that this is one of several citation inconsistencies that collectively
undermine the Court’s ability to rely on representations made in the briefing. See also infra notes 29 and 31.

36
Fortunately, Philipp provides an answer that renders unnecessary fact-specific

determinations of which instances of abhorrent historical conduct are de facto denationalizing

and which are not. That fraught exercise is one that courts would do well to avoid, particularly

in the context of a sovereign immunity determination where the jurisdictional analysis—

assessing the gravity of potentially denationalizing conduct as part of a broad genocidal

program—becomes outsized relative to the underlying property claims. As Judge Katsas put it,

such an endeavor “oddly matches the jurisdictional equivalent of a thermonuclear weapon

(determining the scope of a genocide) to the merits equivalent of swatting a fly (determining

whether there was a common-law conversion).” Philipp v. Federal Republic of Germany, 925

F.3d 1349, 1352 (D.C. Cir. 2019) (Katsas, J., dissenting from the denial of rehearing en banc).19

Plaintiffs’ proposed denationalization-based bypass route around the domestic takings rule,

however, demands that courts do exactly that—a result that would render Philipp’s central

holding a rule in name only.

To be sure, the Supreme Court in Philipp did not categorically close the door on the

argument: “Nor do we consider an alternative argument noted by the heirs: that the sale of the

Welfenschatz is not subject to the domestic takings rule because the consortium members were

not German nationals at the time of the transaction.” 141 S. Ct. at 715. The plaintiffs in Philipp

made that argument only obliquely, however, see Br. Resp’ts at 27, Philipp, 141 S. Ct. 703 (No.

19-351), citing a Ninth Circuit opinion long predating Philipp that noted the domestic takings

rule does not apply to non-nationals and relied on the district court’s determination that the

plaintiff “was no longer regarded by Germany as a German citizen,” a matter “not challenged on

19
Defendants make a similar point: “Plaintiffs’ approach would bring back one of the most vexing problems
of the interpretation of the expropriation exception that the Supreme Court overturned in Philipp: It would require
courts to determine at the outset of a case how badly a sovereign had mistreated its nationals, merely to assess
whether there is jurisdiction over claims for property losses.” Defs.’ Mem. at 22.

37
appeal,” Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1023 n.2 (9th Cir. 2010) (en banc). In

oral argument, the clearest statement of what is meant by this residual argument on remand was

whether “German governmental treatment of German Jews in the 1930s would transgress [the]

nationality line,” Arg. Tr. at 67–68, Philipp, 141 S. Ct. 703 (No. 19-351), a question plaintiff’s

counsel acknowledged would be a case-specific question of fact that “may require the

submission of historical expertise,” id. at 68.

Despite the murkiness of presentation of this issue to the Supreme Court, Philipp

provided sufficiently clear breadcrumbs of a path to conclude that expropriations conducted as

an integral part of a broad genocidal program—which the Holocaust unquestionably was—

simply cannot trigger the expropriation exception with respect to takings from individuals

regarded as citizens of the expropriating state during or just prior to the genocidal events. Put

another way, if a loss of nationality is part and parcel of a set of genocidal acts that happen to

include expropriation, then the expropriation exception becomes the very type of “all-purpose

jurisdictional hook for adjudicating human rights violations” rejected in Philipp, 141 S. Ct. at

713. Indeed, it is difficult to conceive of a hypothetical program of genocide that does not

deprive “member[s] of a minority group” of “full civic and political rights,” Pls.’ Opp’n at 21, or

treat its victims as something less than “full citizen[s],” id. The logical result of plaintiffs’

argument, then, is that any program of genocidal conduct of which expropriations are a part—

because it inherently entails a loss of nationality—falls outside the domestic takings rule and can

be prosecuted using the expropriation exception. That is precisely what Philipp forecloses, only

without articulating the intermediate “loss of nationality” step. As the defendant in Philipp

articulates in a renewed motion to dismiss on remand, “claim[ing] some de facto statelessness

exception to the domestic-takings rule . . . do[es] little more than ask[] this Court to reinstate the

38
unanimously overruled Simon [I] decision in new words.” Def.’s Mem. Supp. Mot. Dismiss

Second Am. Compl. at 41, Philipp v. Stiftung Preussischer Kulturbesitz, No. 15-cv-266 (CKK)

(D.D.C. Oct. 29, 2021), ECF No. 63-1. This Court agrees.

To be clear, none of this discussion is meant to suggest that Hungary granted plaintiffs

the rights and dignity afforded to persons Hungary unambiguously considered to be that

country’s nationals. It plainly did not. Nor does the Court necessarily reject the proposition that

plaintiffs were rendered de facto stateless. Nor is there any real question whether Hungary

committed “serious violations of international human rights law.” Philipp, 141 S. Ct. at 713.

The holding here is more technical in nature: genocidal expropriations, including those directly

associated with the result of denaturalization, cannot under Philipp trigger the expropriation

exception with respect to plaintiffs that would have been nationals of the offending state but for

the genocidal conduct.20

3. Four Plaintiffs Have Not Shown a Lack of Hungarian Nationality Prior
to Hungary’s Wartime Conduct

After Philipp and due to the analysis above, to prevail in a motion to dismiss, a plaintiff

must show that he or she was not a Hungarian national immediately prior to defendants’

expropriation of their property or the commencement of other genocidal conduct. Four named

plaintiffs—Zehava Friedman (“Zehava”), Vera Deutsch Danos (“Vera”), Ella Feuerstein

20
Defendants also address this question through a different lens, arguing that even if Hungary’s treatment of
plaintiffs rendered them stateless, plaintiffs did not thereby become nationals of any other state and as a result there
was no injured foreign state (by way of injury to its nationals) and no violation of international law on account of the
expropriations. See Defs.’ Mem. at 19–20. Plaintiffs counter that a stateless person is an “alien” in relation to the
expropriating state and therefore not covered by the domestic takings rule. See Pls.’ Opp’n at 31-34. This is a
question of first impression in this Circuit and appears to have been addressed by only one federal court. In
Mezerhane v. República Bolivariana de Venezuela, 785 F.3d 545, 551 (11th Cir. 2015), the Eleventh Circuit held,
with limited analysis, that an arguably stateless individual could not invoke the expropriation exception “because his
claims do not implicate multiple states.” Mezerhane distinguished this holding from Holocaust-related cases on the
grounds that the expropriations at issue in the latter cases were part of a genocidal plan, id. at 551, a distinction that
Philipp later rejected with respect to the applicability of the expropriation exception. This Court need not decide
this relatively novel issue at this juncture.

39
Schlanger (“Ella”), and Tzvi Zelikovitch (“Tzvi”)—are unable to do so and must therefore be

dismissed from this case because nothing in the record suggests a lack of Hungarian nationality

at the relevant time. If anything, the record contains modest affirmative indicia that each was

reasonably likely to have been a Hungarian national.

Plaintiffs seeking to invoke the subject matter jurisdiction of this Court using an FSIA

exception to the general grant of sovereign immunity bear the initial burden of production to

show that the exception is applicable. See Chevron Corp. v. Republic of Ecuador, 795 F.3d 200,

204 (D.C. Cir. 2015). Once that burden of production is met, however, “the burden of

persuasion rests with the foreign sovereign claiming immunity, which must establish the absence

of the factual basis by a preponderance of the evidence.” Id. (quoting Agudas Chasidei Chabad,

528 F.3d at 940).

Plaintiffs allege that the Holocaust “began in 1933 when the Nazi Party rose to power in

Germany,” SAC ¶ 102, and the record lacks evidence of potentially citizenship-stripping actions

by Hungary before that date. Further, according to plaintiffs, under the Hungarian Citizenship

Law of 1879, effective until 1948, “one acquired Hungarian citizenship only by descent from a

citizen parent, legitimization, naturalization, or marriage,” Pls.’ Opp’n at 25–26. This suggests a

general citizenship rule determined by parentage rather than by place of birth, although in the

absence of information about the citizenship of any plaintiff’s parents, place of birth may be a

useful proxy.

a) Zehava

Zehava was born May 31, 1932, in Satoraljaujhely, Hungary, to a large family living in a

“large home” on a “large lot”—sufficiently expansive so as to contain outbuildings with

tenants—owned by her grandfather, a “successful wine merchant.” SAC ¶ 28. She had brothers

40
serving in the Hungarian army, and a father and brothers conducting business in Budapest (the

capital of Hungary) much of the year. Id. Given that Zehava’s birth predated the Holocaust and

none of these facts alleges or supports an inference that Zehava’s parents were not Hungarian

citizens, Zehava has not met her burden of production to establish jurisdiction. If anything, her

family’s fairly extensive, multigenerational ties to Hungary, combined with her birthplace in

Hungary, weigh in favor of the opposite conclusion.

b) Vera

Vera was born in 1926 in Verpelet, Hungary to “a wealthy wine merchant” who owned a

wine business. SAC ¶¶ 65–66. This description says little about the nationality of Vera’s

parents, and, critically, does not provide a reason to infer they were other than Hungarian

nationals. Vera, too, has not met her burden of production. As above, the fact that Vera was

born in Hungary increases the likelihood that her parents were Hungarian nationals.

c) Tzvi

Tzvi was born in 1928 in “Uglya in Carpatorus, part of Hungarian-annexed Ruthenia

(which was in the Kingdom of Austria-Hungary until formation of the Czechoslovak Republic

after World War I),” and was raised there as well. SAC ¶ 15. Plaintiffs explicitly allege, without

any caveats or qualifications, that Tzvi’s parents were “both Hungarian citizens.” Id. Under the

general rule of acquiring citizenship through birth to Hungarian citizen parents, Tzvi, too, would

have been a Hungarian citizen upon birth. Plaintiff offers unrefuted evidence that some special

considerations applied, however, with respect to inhabitants of Czechoslovakian territory

annexed by Hungary in the late 1930s. See infra Part III.B.2.b. Even under those additional

rules, on this record, if Tzvi were not a Hungarian citizen at birth, he became one upon

annexation because (1) he and his parents lived in Ruthenia continuously for the entire window

41
of March 15, 1929 to March 15, 1939; (2) plaintiffs have offered no facts suggesting that his

parents were not yet Hungarian citizens as of July 26, 1921; (3) at the time of annexation Tzvi

was ten or eleven years old—in any event, under 24 years of age; and (4) nothing in the record

indicates either of his parents or any other ancestors “acquired Czechoslovak citizenship by

option based on Article 64 of the Trianon Treaty,” Bar-Shaked Decl. ¶ 61; to the contrary,

because of the general rule of citizenship transfer through parentage, the limited set of his

ancestors living between the 1920 signing of the Treaty of Trianon and the annexation in 1939

were likely Hungarian nationals as well.

d) Ella

Ella “was born in 1930 to a Hungarian family resident in Benedike, Czechoslovakia.”

SAC ¶ 73. That statement, without more facts, is sufficient to extinguish jurisdiction over Ella’s

claims because without more facts, the most reasonable inference by far is that Ella had

Hungarian nationality and thus her claims fall within the domestic takings rule. Without some

allegation to the contrary, Ella’s family must be deemed to have had Hungarian nationality. In

this instance, the allegation that the family lived in Czechoslovakia actually harms, not helps,

Ella’s position because it is unclear what else besides nationality the adjective “Hungarian”

could mean when applied to a family resident in Czechoslovakia prior to annexation.21 If Ella’s

parents were Hungarian nationals at the time of her birth in 1930, under plaintiffs’ description of

the respective states’ citizenship laws, she would have likewise become a Hungarian national

upon birth and would not have become a Czechoslovakian national. Additionally, 1930 predates

the various anti-Jewish laws later enacted by Hungary, see Bar-Shaked Decl. ¶ 29, meaning that

21
By contrast, when used to describe a resident of Hungary, the term “Hungarian” arguably could be used
more colloquially without necessarily being a statement about nationality. See infra note 25 and accompanying text.

42
plaintiffs have not identified any obstacle in Hungarian law for Ella to have held that country’s

citizenship.

* * *

As discussed more fully in Part III.B.3, infra, plaintiffs have plausibly established non-

Hungarian nationality for nine other named plaintiffs, each of whom is alleged to have been born

“in the Ruthenia or Slovakian regions of Czechoslovakia” to parents not known to be of

Hungarian nationality, making them “presumptively Czechoslovak nationals when Hungary

wrongfully took their property in the Holocaust.” Pls.’ Opp’n at 4–5, 5 n.2. Their claims survive

at the motion to dismiss stage, although further factual development may show that some of

these named plaintiffs are Hungarian nationals as well, ultimately requiring further dismissals.

4. Plaintiffs’ Alternative Bases for Showing a Violation of International
Law By Hungary Against Jewish Hungarian Nationals Fail

In a last gasp effort to preserve the right of then-Hungarian nationals to sue Hungary for

Hungarian atrocities against them as Jews, plaintiffs also briefly advance two alternative

arguments for why Hungarian national plaintiffs may bring expropriation claims, neither of

which is convincing.

First, plaintiffs urge that because Hungary and Nazi Germany were “joint actors, joint

tortfeasors, [and] partners in crime,” claims can be brought against Hungary for expropriations

wrought by Germany. Pls.’ Opp’n at 34–35. In other words, the Hungarian nationals are not

barred by the domestic takings rule because the takings were effectuated in part by Germany. In

support, plaintiffs’ “leading case” is the decade-old case of Cassirer v. Kingdom of Spain, 616

F.3d 1019 (9th Cir. 2010) (en banc), which held that the FSIA “does not require that the foreign

state against whom the claim is made by the entity which took the property in violation of

international law.” Pls.’ Opp’n at 35 (quoting Cassirer, 616 F.3d at 1028). Cassirer involved an

43
art expropriation claim against Spain (the alleged current owner) for Nazi Germany’s

expropriation from a German in Germany. 616 F.3d at 1022–23. The Ninth Circuit held that

jurisdiction could lie against Spain, but relied on the statelessness argument, rejected as now

incompatible with Philipp in Part III.A.2, supra, to prevent the German takings from being

deemed “domestic.” Id. at 1023. Furthermore, the D.C. Circuit did not endorse the reasoning

quoted by plaintiffs from de Csepel, see Pls.’ Opp’n at 35, instead affirming the denial of

dismissal by determining that the claims at issue were best construed as bailment claims and not

expropriation claims at all, de Csepel v. Republic of Hungary, 714 F.3d 591, 598 (D.C. Cir.

2013). Finally, as defendants correctly point out, even if Hungary could be liable on a theory of

complicity with Germany’s expropriations from Hungarians, not one of the complaint’s

allegations identifies any takings of plaintiffs’ property by German officials. Defs.’ Reply at 12.

The complaint alleges ample German involvement with human rights atrocities committed

against the Hungarian Jews, but none that trigger the expropriation exception.

Second, plaintiffs attempt to invoke Hungary’s alleged violations of the 1920 Treaty of

Trianon as an “independent and sufficient basis” for applying the expropriation exception on the

premise that the Treaty created international law guaranteeing rights for “all inhabitants of

Hungary,” the violation of which is sufficient predicate for invoking the expropriation exception

without being limited by the domestic takings rule. See Pls. Opp’n at 36–39. Regardless of what

obligations Hungary undertook under this Treaty related to World War I, the problem with this

argument is that Philipp demands that the violation of international law used to invoke the

expropriation exception be a violation of “the international law of expropriation” as understood

in 1976 and not draw more broadly from “all of international law.” 141 S. Ct. at 712–13.

Furthermore, the reliance on a pre-existing treaty to abrogate sovereign immunity, rather than to

44
expand it, strikes this Court as veering perilously close to the “generally disfavored” practice of

“[o]ffensive use of a pre-existing agreement,” as articulated in Simon-2014, 37 F. Supp. 3d at

409.

* * *

In short, Philipp closes the door on then-Hungarian national plaintiffs to pierce sovereign

immunity using the expropriation exception, as the Supreme Court’s opinion revives and fortifies

the domestic takings rule even for situations involving atrocities so grave that the expropriations

could themselves be deemed genocidal in character. Furthermore, plaintiffs’ theory of

statelessness caused by genocidal conduct as a means of bypassing the domestic takings rule is

no longer viable for Hungarian plaintiffs as it is irreconcilable with the logic of Philipp. As

applied to this case, the four named plaintiffs discussed above must therefore be dismissed with

prejudice because they fail to offer allegations suggesting a lack of Hungarian nationality, and in

some cases the facts even affirmatively militate in favor of such nationality.

B. Foreign National Plaintiffs May Proceed

Just as the parties agree that after Philipp, the domestic takings rule precludes the use of

the expropriation exception by plaintiffs who were Hungarian nationals at the time of the

takings, they also do not dispute that the FSIA does not confer sovereign immunity against

claims brought by plaintiffs who were nationals of some other country (and not of Hungary) at

the time of the takings, so long as those claims satisfy the other requirements of the expropriation

exception. See Pls.’ Opp’n at 7; Defs.’ Mem. at 1.22 The task now before this Court, therefore,

22
Defendants invite this Court to revisit one of these “other requirements,” the commercial nexus
requirement, in light of Philipp’s constriction of the scope of “property taken in violation of international law” to
include only property taken from foreign nationals. Defs.’ Mem. at 30–38. As a result, defendants argue, this
Court’s decision in Simon-2020 that the nexus requirements had been satisfied as to both defendants “is no longer
true” because after Philipp, “only takings from foreign nationals can deprive Hungary of sovereign immunity.
Other expropriations cannot be considered when applying the nexus requirement. . . . The question now, which this
Court has never considered, is whether the nexus requirement can be satisfied solely by property taken from

45
is to ascertain which, if any, of the named plaintiffs have adequately pleaded facts or proffered

evidence supporting the position that they were foreign (i.e., other than Hungarian) nationals at

the time of the takings at issue.23

1. Nationality Arguments Are Properly Before the Court

Defendants urge the Court to reject, on procedural grounds, plaintiffs’ attempts to argue

that at least some named plaintiffs were not Hungarian nationals at the time of the expropriations

at issue. See Defs.’ Mem. at 23–30.24 All three legal doctrines invoked for this basic point—

foreigners.” Defs.’ Mem. at 30–31 (emphasis in original). As a technical matter, defendants are likely correct that
Philipp can affect a commercial nexus analysis. Given that the scope of “property taken in violation of international
law,” 28 U.S.C. § 1605(a)(3), was reduced by Philipp, the nexus requirement’s reference to “that property,” id.,
must likewise be so constrained. The problem for defendants is that the commingling logic in Simon-2020, derived
from a holding in Simon I not related to the domestic takings rule and thus not abrogated by Philipp, provided the
bridge between the specific named plaintiffs’ property and the modern-day presence in the United States of
commingled proceeds from liquidations of all victims’ property. See Simon-2020, 443 F. Supp. 3d at 103–04 (citing
Simon I, 812 F.3d at 147). Nothing about that logic changes if one set of named plaintiffs—everyone listed on the
face of the complaint—is displaced in favor of a different set of named plaintiffs—only those deemed to have been
foreign nationals. Plaintiffs are correct that “[n]othing in the Court’s [Simon-2020] analysis depended on the
Hungarian nationality vel non of those Jews who were deprived of their property.” Pls.’ Opp’n at 40. Accordingly,
defendants’ invitation is declined.
23
This Court need not confront the question now—but could later be faced with it—whether plaintiffs who
were stateless for some exogenous reason (i.e., not through the denationalization theory discussed in Part III.A.2,
supra) may bring claims using the expropriation exception without running afoul of the domestic takings rule. None
of the named plaintiffs in the Second Amended Complaint alleges facts nor otherwise argues a condition of
statelessness unrelated to the Holocaust. If any had, the types of arguments discussed in note 20, supra, would
likely be central to that analysis. Likewise, the parties have not addressed whether the domestic takings rule would
apply in the event of claims by plaintiffs who were nationals of both Hungary and another country (in this case, most
likely Czechoslovakia) at the time of the expropriations. Only one appellate opinion has directly considered such a
question. In Comparelli v. Republica Bolivariana de Venezuela, 891 F.3d 1311 (11th Cir.), a case involving
expropriation claims against Venezuela by a dual Venezuelan-Italian national, the Eleventh Circuit declined to issue
a per se rule in either direction, instead holding that “the inquiry is fact-based, considering matters such as the
relationship between the national and the state which allegedly expropriated the property, how the national—through
his words and conduct—characterized himself, and whether the state considered its national as one of its own or as a
foreign national.” Id. at 1323.
24
While defendants’ brief includes a heading titled “Any Claim By Plaintiffs That They Were Never
Hungarian Nationals Has Been Forfeited And Is Incorrect,” Defs.’ Mem. at 23 (emphasis added), the associated text
for this section deals exclusively with judicial admission, judicial estoppel, and waiver arguments. In other words,
defendants do not articulate why it “Is Incorrect” as a factual matter for some plaintiffs to argue that they never had
Hungarian nationality. Furthermore, to support a point that “Plaintiffs were not actually Czech nationals,”
defendants point to “infra Point II.B,” Defs. Mem. at 26—a section that would have been interesting but does not
exist in defendants’ brief, perhaps not surviving revisions. Furthermore, while asserting in another title that
“Plaintiffs’ Claims As To Czechoslovakian Nationality Fail As A Matter Of Law,” defendants nearly concede that
some named plaintiffs might in fact be able to show Czechoslovakian nationality. Defs.’ Reply at 9. The
“Fail[ure]” asserted is not that plaintiffs cannot viably claim Czechoslovakian nationality, but rather that doing so
would, defendants argue, cause “their claims [to] be extinguished under the treaty exception” by falling under

46
judicial admission, judicial estoppel, and waiver—fail, and plaintiffs are not barred from

pursuing these arguments.

a) No Judicial Admission

Defendants assert that because “[p]laintiffs have admitted numerous times that they were

Hungarian nationals at the time of the takings,” those “statements constitute a judicial admission

that Plaintiffs were Hungarian nationals at the time of the wrongdoing” and therefore bar

plaintiffs from “now argu[ing] the opposite.” Defs.’ Mem. at 24 (emphasis in original). To be

sure, “[a] party’s assertion of fact in a pleading is a judicial admission by which it normally is

bound throughout the course of the proceeding.” El Paso Natural Gas Co. v. United States, 750

F.3d 863, 876 (D.C. Cir. 2014) (quoting Schott Motorcycle Supply, Inc. v. Am. Honda Motor Co.,

Inc., 976 F.2d 58, 61 (1st Cir. 1992)). Scrutiny of the record reveals that plaintiffs have not

made such “admission[s]” to the extent defendants suggest. Defendants’ characterization of

plaintiffs’ statements about their nationality over the course of this litigation is imprecise at best.

For example, early in their opening brief, defendants argue: “As alleged in the Complaint,

all of the named Plaintiffs were Hungarian nationals at the time of the takings.” Defs.’ Mem. at

4 (emphasis added). This is imprecise because the types of ties to Hungary alleged in the

complaint are not one and the same with Hungarian nationality. Nowhere in the complaint do

plaintiffs expressly allege any nationality, Hungarian or otherwise, of any named plaintiff. As

support for supposed implicit allegations of Hungarian nationality, defendants cite to examples

of allegations of named plaintiffs who were “raised in Hungarian-annexed” territory, who were

“raised in Hungary,” or who “lived in Hungary and worked in the Hungarian annexed regions.”

Article 26 rather than Article 27 of the 1947 Treaty. Id. at 9–10. As discussed in Part III.B.1.b, infra, the Court
rejects this attempt to revive the use of the treaty exception in the face of the Circuit’s clear holding in Simon I.

47
Id. at 4–5 (citing SAC ¶¶ 10, 15, 22, 28, 39, 41, 49, 65, 73, 81). As apparent in the discussion

below of Hungarian and Czechoslovakian nationality rules, these factual allegations are not

dispositive as to Hungarian nationality for all the plaintiffs.

Elsewhere, defendants state: “Plaintiffs represented to the D.C. Circuit [in Simon I] that

they were all Hungarian citizens or nationals at the time Hungary took their property in both their

opening and reply briefs.” Defs.’ Mem. at 8 n.7; see also id. at 24. On the cited page of

plaintiffs’ opening appellate brief in Simon I, plaintiffs described themselves as having “lived

within today’s Hungarian borders or in territory annexed by Hungary in 1938 after

Czechoslovakia’s dismemberment,” Simon I Pls.’ Br. at 2, but such a description falls short of a

“represent[ation]” of nationality. Defendants’ citation to plaintiffs’ appellate reply brief presents

a closer question, given plaintiffs’ argument that “Survivors were Hungarian nationals or citizens

in name only, not substance, as they were systematically deprived of the most fundamental rights

to which a state’s nationals and citizens are entitled, including the right to exist.” Simon I Pls.’

Reply at 11. Taken in context, however, plaintiffs were making an argument that Hungary could

not hide behind the domestic takings rule because Hungary’s expropriations “were racially

discriminatory,” id. at 9, and regardless of any formal labels of nationality, Hungary’s

relationship with plaintiffs did not entail substantive hallmarks of citizenship—hence the

expression “nationals or citizens in name only,” id. at 10–11. Plaintiffs’ phrasing implied only

that if Hungary applied formal labels of citizenship to plaintiffs, they were “citizens in name

only.” In other words, the critical term is “in name only,” not “citizens.”

Similarly, defendants unconvincingly point to statements by plaintiffs that emphasize the

relationship between a government and a country’s own nationals. See Defs.’ Mem. at 24. In

briefing in Simon I, plaintiffs noted judicial decisions that “concluded that [Holocaust

48
expropriations] violate international law, notwithstanding the victims’ nationality” and continued

that “[t]his comports with the modern view that international law confers fundamental rights

upon all people vis-à-vis their own governments.” Simon I Pls.’ Reply at 9. This framing of

their argument is altogether unsurprising to avoid reliance on non-Hungarian nationality to

sidestep the domestic takings rule, since such arguments are critical for success for the handful of

Hungarian nationals among the named plaintiffs. Nothing about that argument is inconsistent

with some of the named plaintiffs having been foreign nationals at the relevant time; it is simply

an argument that is not necessary for the entire group.

With more notable merit, defendants point out several times that plaintiffs describe

themselves and putative class members as “Hungarian Jews,” Defs.’ Mem. at 5, 18, 34, but

ultimately these litigation statement also fail to constitute an “admission.” Defendants are

correct that plaintiffs frequently use this phrase as a descriptor. See, e.g., SAC ¶ 84 (“MÁV . . .

deport[ed] Hungarian Jews . . . .”); id. ¶ 101 (“property that Defendants stole from Hungarian

Jews, including Plaintiffs”); id. ¶¶ 105, 107 (“First Deportations and Murder of Hungarian Jews”

in 1941); id. ¶ 108 (expulsion of “Hungarian Jews from all public employment, academic and

professional positions”); id. ¶ 110 (“ghettoization of the Hungarian Jews”); id. ¶¶ 120, 122

(deportation of “Hungarian Jews” to Auschwitz); id. ¶ 155(D) (posing the legal question

“[w]hether Defendants, as a matter of course, confiscated the property and possessions of

Hungarian Jews”); id. ¶ 194 (alleging conspiracy between Germany and defendants to “steal

Hungarian Jews’ property”). Even in the course of opposing this motion to dismiss, plaintiffs

continue to use the phrase. See, e.g., Pls.’ Opp’n at 6 (“Hungary expropriated all of the property

of nearly 500,000 Hungarian Jews . . . .”).

49
Plaintiffs offer, in a footnote, a construction of the phrase, to which defendants offer no

rejoinder: “These references [to ‘Hungarian Jews’] merely describe the victims generically as

Jews who were in Hungary and thus subject to Hungary’s genocidal actions; they do not purport

to specify nationality.” Pls.’ Opp’n at 8 n.5. To be sure, the phrase “Hungarian Jews” may be

understood to imply that the Jews at issue were more than merely present in Hungary when

victimized by Hungary but had a closer connection of belonging to or coming from Hungary, as

would a national or citizen of that country. Nevertheless, when considering a motion to dismiss

for lack of subject matter jurisdiction, courts “construe the complaint ‘liberally.’” Zukerman v.

U.S. Postal Serv., 961 F.3d 431, 436 (D.C. Cir. 2020) (quoting Barr v. Clinton, 370 F.3d 1196,

1199 (D.C. Cir. 2004)). In that vein, plaintiffs’ explanation of the intended meaning of their own

allegations is credited as being a linguistically reasonable, useful shorthand rather than a blanket

statement that all affected were “Hungarian nationals.”25

Further supporting the looser reading of the “Hungarian Jews” label, the D.C. Circuit’s

opinion in Simon I likewise uses the term when referring to persons clearly lacking Hungarian

citizenship. In its overview of the relevant history, the Simon I panel observed that starting

around 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.” 812 F.3d at 133. Continuing to

describe this group in the aggregate, the court noted that despite this persecution, “Hungarian

25
Dictionary definitions of the term “Hungarian” also show a range of interpretive possibilities. For example,
a “Hungarian” may be “a native or inhabitant of Hungary” or “a person of Hungarian descent,” Hungarian,
MERRIAM-WEBSTER ONLINE, https://www.merriam-webster.com/dictionary/Hungarian, providing minimal insight
into the extent, if any, to which the term “Hungarian” is associated with Hungarian nationality or citizenship, as
opposed to birthplace, residency, or ancestry. Ambiguity of this sort is not unique to Hungarians. See Demonym,
MERRIAM-WEBSTER ONLINE, https://www.merriam-webster.com/dictionary/demonym (“a word (such as Nevadan
or Sooner) used to denote a person who inhabits or is native to a particular place”).

50
Jews” had until 1944 avoided “widespread extermination.” Id. That all changed in 1944, when

in just three months “nearly half a million Hungarian Jews were murdered.” Id. In context, the

Simon I panel seemingly applied the term “Hungarian Jews” at various points in time to describe

groups that included members lacking Hungarian citizenship because that citizenship had been

“stripped.” In short, “Hungarian Jews” is more a term of art than a statement of nationality and

is not a judicial admission by plaintiffs of Hungarian citizenship or nationality.

b) No Judicial Estoppel

Defendants next posit that plaintiffs are estopped from characterizing any named

plaintiffs as having been foreign nationals because plaintiffs’ argument and the D.C. Circuit’s

decision in Simon I based its analysis of the treaty exception on the expropriations at issue being

covered by Article 27 of the 1947 Treaty. Defs.’ Mem. at 25. According to defendants, because

plaintiffs tried to invoke Article 27, “where Hungary ‘undertook’ to restore property of its own

nationals,” id. (quoting Simon I Pls.’ Reply at 3), and the Circuit’s determination that Article

27’s remedies were non-exclusive was, itself, exclusive to Article 27, id. This reliance by the

Circuit, defendants urge, estops plaintiffs from now arguing that they were not Hungarian

nationals, as doing so would invoke Article 26 instead of Article 27. See id. at 25–28.

Defendants overstate the significance of the distinction between the two Articles as well

as the extent of reliance by the Circuit on plaintiffs’ framing on nationality. As an initial (and

potentially dispositive) matter, Article 27 is not in fact constrained to claims by Hungarian

nationals. Article 27 concerns property and interests “of persons under Hungarian jurisdiction”

violated after September 1, 1939. 1947 Treaty art. 27, 61 Stat. at 2124 (emphasis added). It is

difficult to see how persons residing in the annexed territories—regardless of their nationality—

did not find themselves “under Hungarian jurisdiction” when they were ousted from their homes,

51
divested of their belongings, and inhumanely shipped off to concentration camps. Furthermore,

Article 27 encompasses offenses committed “on account of the racial origin or religion of such

persons,” with no apparent nationality-related criterion. Id.

Even were Article 26 relevant to encompass claims by Czechoslovakian nationals for

violations experienced while living within the jurisdiction of Hungary, defendants have still not

clearly articulated why Article 26 remedies should be considered exclusive, allowing the treaty

exception rejected in Simon I to come back into play for claims by foreign nationals. On the

contrary, the Circuit’s first stated rationale for viewing Article 27 as providing non-exclusive

remedies is that Article 27’s text “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.” Simon I, 812 F.3d at 137. This contrasted with “[o]ther treaties concluding

World War II hostilities,” which “contain language expressly establishing a final and exclusive

resolution of war-related claims.” Id. (emphasis in original). Furthermore, “Article 27 of the

1947 Treaty contains no comparable waiver of extra-treaty claims against Hungary. The absence

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 . . . .” Id. at 138. Nothing about this analysis

changes if “Article 26” is substituted for “Article 27” throughout. Article 26, too, contains no

express waivers or suggestions of exclusivity of remedies. See 1947 Treaty, art. 26, 61 Stat. at

2121–24. Defendants mention none of this.

Defendants are correct that the Simon I court went on to bolster its conclusions about the

non-exclusivity of Article 27 based on the context that remedies for Hungarian nationals needed

to be non-exclusive because their own government (Hungary’s) would not have negotiated on

their behalf against itself. See Simon I, 812 F.3d at 138–40; Defs.’ Mem. at 26–28. By failing to

52
mention the Circuit’s first reason—the text—for viewing Article 27 as non-exclusive, however,

defendants misleadingly suggest that this “context” issue alone was dispositive in Simon I. A

better reading of the Simon I opinion is that the Circuit found both of these reasons to be

compelling.

In the end, defendants’ judicial estoppel argument fails because defendants have not

clearly shown that the Simon I court relied on plaintiffs’ representations of nationality in an

outcome-determinative fashion.26 If anything, defendants’ framing—as the party invoking the

treaty exception—pushed Hungarian nationality and had more to do with the Simon I court’s

approach. See Pls.’ Opp’n at 10–11 (showing the Circuit’s reliance on defendant’s

characterizations). In any event, the outcome reached in Simon I would be no different if

analyzed under Article 26.

c) No Waiver

Finally, defendants insist that plaintiffs’ argument that at least some named plaintiffs

were foreign (non-Hungarian) nationals at the time of the expropriations has been waived,

principally because of plaintiffs’ failure to assert it on appeal in Simon I. Under the peculiar

circumstances of this case, the waiver argument fails.

As an initial matter, plaintiffs raised the issue of the non-Hungarian nationality of some

plaintiffs in their very first responsive filing in this case, stating: “Contrary to Defendants’

assertion, not all of the Plaintiffs were considered Hungarian citizens when they were deported

by Defendants.” Pls.’ Opp’n [First] Mot. Dismiss at 3, ECF No. 24; see also id. at 16 (“Finally,

although many of the Plaintiffs were citizens of Hungary at the time of the takings in question,

not all were.”). As such, the suggestion that certain plaintiffs held other than Hungarian

26
For the same reason, revisiting the use of the treaty exception now is unnecessary.

53
nationality is by no means a “new” argument. Furthermore, as noted above, the corpus of

plaintiffs’ representations over the course of the case have not been inconsistent with this

premise.

At the same time, however, plaintiffs did not argue the nationality point on appeal in

Simon I, even though defendants asserted at the Circuit that “[a]ll of [the] Plaintiffs were

Hungarian nationals at the time of the events in question,” Opp’n Br. Defs.-Appellees at 32,

Simon I, 812 F.3d 127 (No. 14-7082), without any rebuttal by plaintiffs of that characterization.

For its part, in its Simon I opinion the D.C. Circuit panel stated, without analysis, that “[a]ll

fourteen [named plaintiffs] were Hungarian nationals during World War II, but have since

adopted other nationalities.” 812 F.3d at 134.

To the extent the D.C. Circuit relied on this assumption about plaintiffs being Hungarian

nationals, as discussed in Part III.B.1.b, supra, the treaty exception analysis did not meaningfully

turn on this issue. Indeed, Article 27 may have encompassed all plaintiffs’ claims regardless of

nationality given that they all found themselves under “Hungarian jurisdiction.” Although the

Circuit again mentions that “the plaintiffs were Hungarian nationals” on the way to determining

that the “domestic takings

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5141846. Public record. Not legal advice.