Rosalie Simon v. Republic of Hungary

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 2023 Decided August 8, 2023

No. 22-7010

ROSALIE SIMON, ET AL.,

APPELLEES

v.

REPUBLIC OF HUNGARY AND MAGYAR ALLAMVASUTAK ZRT.,

(MAV ZRT.),

APPELLANTS

Consolidated with 22-7013, 22-7112

Appeals from the United States District Court

for the District of Columbia

(No. 1:10-cv-01770)

(No. 1:21-cv-01739)

Gregory Silbert argued the cause for defendants-

appellants/cross-appellees Republic of Hungary, et al. With

him on the briefs was Konrad L. Cailteux.

L. Marc Zell and David H. Weinstein argued the causes for

plaintiffs-appellees/cross-appellants Rosalie Simon, et al. and

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Steven Heller, et al. With them on the briefs were Noam

Schreiber, Charles S. Fax, Liesel J. Schopler, and Paul G.

Gaston.

Andrew D. Freeman and Anthony J. May were on the brief

for amicus curiae Professor Vivian Grosswald Curran in

support of plaintiffs-appellees/cross-appellants.

Before: PILLARD and CHILDS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD and

Circuit Judge CHILDS.

Opinion concurring in part and dissenting in part filed by

Senior Circuit Judge RANDOLPH.

PILLARD and CHILDS, Circuit Judges: These two

consolidated cases arise out of the Hungarian government’s

confiscation of property owned by Jews during the Holocaust.

“Nowhere was the Holocaust executed with such speed and

ferocity as it was in Hungary.” Simon v. Republic of Hungary,

812 F.3d 127, 133 (D.C. Cir. 2016) (quoting Simon, First Am.

Compl. ¶ 1 (J.A. 44)). In 1944, as World War II neared its end,

the Hungarian government implemented an accelerated

campaign to exterminate its remaining Jewish population.

Within a matter of months, the government systematically

executed over half a million Jews—roughly two-thirds of the

Jewish population in Hungary at the war’s outset. This state-

perpetrated genocidal campaign ranks among the greatest

crimes in human history.

The questions raised by these appeals bear on whether

survivors of the Hungarian Holocaust may hale the Hungarian

government and its instrumentalities into United States courts

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to answer for a subset of the wrongs they committed—namely,

their confiscation of property from victims of the Holocaust.

The plaintiffs invoke the Foreign Sovereign Immunities Act’s

expropriation exception as a means to pierce the Hungarian

state’s sovereign immunity and assert jurisdiction in federal

district court. Defendants object that the exception is

inapplicable.

In the first of the two cases consolidated before us, Simon

v. Republic of Hungary, fourteen survivors of the Hungarian

Holocaust sue the Republic of Hungary and one of its agencies,

Magyar Államvasutak Zrt., seeking compensation for the

seizure of their property during the Holocaust. The litigation

in Simon is long running, and we have reviewed appeals in the

case twice before. In the second case, Heller v. Republic of

Hungary, two Holocaust survivors more recently sued for

compensation from Hungary for property confiscated from

their late parents and grandparents during the war.

Cognizant of the Supreme Court’s recent holding that “a

country’s alleged taking of property from its own nationals”

generally falls outside the scope of the Foreign Sovereign

Immunities Act’s expropriation exception, Fed. Republic of

Germany v. Philipp, 141 S. Ct. 703, 708 (2021); see id. at 715,

the plaintiffs in these suits assert they were not Hungarian

nationals at the time of the takings at issue. They instead claim

that they were either stateless or Czechoslovakian nationals.

The district court dismissed the claims of the plaintiffs

asserting statelessness but concluded that most of the plaintiffs

asserting Czechoslovakian nationality could proceed.

We largely affirm. Like the district court, we conclude

that the plaintiffs claiming statelessness—Zehava Friedman,

Vera Deutsch Danos, Steven Heller, and Charles Heller—have

not made out a recognized claim within a Foreign Sovereign

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Immunities Act exception. Assuming without deciding that

those plaintiffs were de facto stateless at the time of the alleged

takings, as they claim, the plaintiffs have nevertheless failed to

identify adequate affirmative support in sources of

international law for their contention that a state’s taking of a

stateless person’s property amounts to a taking “in violation of

international law” within the meaning of the Foreign Sovereign

Immunities Act. 28 U.S.C. § 1605(a)(3). We do not foreclose

the possibility that such a takings claim might prevail if

grounded in sources of international law not before us or based

on arguments not raised here. But on this record, we affirm the

district court’s dismissal of those four plaintiffs’ claims.

We likewise affirm the district court’s denial of the

defendants’ motions to dismiss the claims of some of the

plaintiffs asserting Czechoslovakian nationality, with a few

exceptions. The district court correctly determined that four of

those plaintiffs—Magda Kopolovich Bar-Or, Yitzhak

Pressburger, Alexander Speiser, and Moshe Perel—had

plausibly alleged they were Czechoslovakian nationals at the

time of the takings. As for the five Lebovics sisters, the district

court should have dismissed their claims, along with those of

Tzvi Zelikovitch and Ella Feuerstein Schlanger, for failure to

plausibly allege Czechoslovakian nationality. We direct that

those dismissals, however, be without prejudice to the

opportunity of any of those plaintiffs to amend in the event they

can cure the identified defects in their nationality allegations.

In reaching this conclusion, we reject the Hungarian

defendants’ arguments that the plaintiffs are judicially

estopped from asserting Czechoslovakian nationality and that,

even assuming they were Czechoslovakian at the time of the

takings, the Foreign Sovereign Immunities Act’s treaty

exception bars their claims. We also reject the plaintiffs’

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theory that Hungary’s alleged treaty violations enable the

plaintiffs to bypass the domestic takings rule.

Hungary and its instrumentality also assert that the

plaintiffs’ claims of expropriation in violation of international

law lack the nexus to commercial activity in the United States

that the Foreign Sovereign Immunities Act requires. We

remand for the district court to make certain factual

determinations regarding that nexus element of the remaining

plaintiffs’ claims.

All told, the claims of four Simon plaintiffs may proceed,

and an additional eight Simon plaintiffs will have the

opportunity to amend their pleadings. The district court,

however, appropriately dismissed the Heller plaintiffs’ claims.

I.

A.

The historical events giving rise to these suits are

recounted at length in our first two opinions in the Simon

litigation, see Simon v. Republic of Hungary (Simon I), 812

F.3d 127, 132-34 (D.C. Cir. 2016), abrogated in part by Fed.

Republic of Germany v. Philipp, 141 S. Ct. 703 (2021); Simon

v. Republic of Hungary (Simon II), 911 F.3d 1172, 1176-78

(D.C. Cir. 2018), vacated, 141 S. Ct. 691 (2021) (per curiam),

as well as the district court’s Simon and Heller opinions, see

Simon v. Republic of Hungary (Simon-2021), 579 F. Supp. 3d

91, 97-99 (D.D.C. 2021); Heller v. Republic of Hungary, No.

21-cv-1739-BAH, 2022 WL 2802351, at *1-2 (D.D.C. July 18,

2022). Further background is provided here as relevant to the

disputes at issue.

We begin with a brief account of Hungary’s evolving

borders during the early twentieth century and their

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implications for the nationalities of persons living in affected

territory. Prior to World War I, the Austro-Hungarian Empire

controlled a significant share of European territory, including

parts of modern-day Hungary, Slovakia, and the Czech

Republic. At the war’s end, however, the Austro-Hungarian

Empire was dismembered into several smaller states organized

primarily along ethno-linguistic lines. The Kingdom of

Hungary, which had been part of the Austro-Hungarian

Empire, ceded approximately two-thirds of its territory to

newly created states. The territory Hungary retained is often

referred to as “Trianon Hungary,” in recognition of the treaty

that largely defined its borders: the 1920 Treaty of Trianon.

Treaty of Peace Between the Allied and Associated Powers and

Hungary arts. 27-35, June 4, 1920, S. Treaty Doc. No. 67-348

(1923) (Treaty of Trianon). In that treaty, Hungary also agreed

to recognize the independence of a new nation state,

Czechoslovakia, in an area that had comprised the northern

region of the Austro-Hungarian Empire. See id. art. 48.

As relevant here, two post-war treaties governed the

assignment of nationalities to persons in the territories ceded

by Hungary to Czechoslovakia. First, the 1919 Treaty of St.

Germain required the newly created state of Czechoslovakia to

extend its citizenship to most Hungarian nationals who were

habitually residing in the territory that became part of

Czechoslovakia. Treaty Between the Principal Allied and

Associated Powers and Czechoslovakia art. 3, Sept. 10, 1919,

S. Treaty Doc. No. 67-348 (1923) (St. Germain Treaty). The

St. Germain Treaty also established that “[a]ll persons born in

Czecho-Slovak territory who are not born nationals of another

State shall” acquire Czechoslovakian nationality. Id. art. 6.

Second, the 1920 Treaty of Trianon included parallel

provisions granting Czechoslovakian nationality to, and

stripping Hungarian nationality from, those who had “rights of

citizenship” in the territory that became part of

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Czechoslovakia, Treaty of Trianon art. 61, subject to certain

conditions and exceptions, id. arts. 62-66.

The borders of this newly conceived Czechoslovakian

state, however, did not last. In 1938 and 1939, on the eve of

World War II in Europe, Nazi Germany and Hungary illegally

annexed parts of Czechoslovakia. Hungary thereafter sought

to re-nationalize persons living in annexed regions who had

lived there continuously from 1929 to 1939, and who had been

Hungarian citizens as of 1921. In practice, however,

“Hungarian officials imposed excessively stringent demands

for proof of Hungarian citizenship upon Jews, making it

virtually impossible for most Jewish residents of [annexed

territory] to comply, with the result that they did not acquire

Hungarian citizenship.” Bar-Shaked Decl. ¶ 62 (J.A. 1868);

see id. ¶ 61 & n.31 (J.A. 1867). Hungarian laws also prohibited

Jews from obtaining Hungarian citizenship by naturalization.

Id. ¶ 31 (J.A. 1853).

After it became clear that they would lose the war, Nazi

Germany and Hungary “raced to complete their eradication of

the Jews before the Axis surrendered.” Simon Second Am.

Compl. (Simon SAC) ¶ 3 (J.A. 238). Winston Churchill

described Hungary’s genocidal campaign as “probably the

greatest and most horrible crime ever committed in the history

of the world.” Simon I, 812 F.3d at 132. The Axis powers

wiped out more than two-thirds of Hungary’s pre-war Jewish

population during the course of the war. Id. at 134. “The

overwhelming majority of those deaths came from the roughly

430,000 Hungarian Jews deported to Auschwitz” or other

concentration camps. Id. On November 3, 1944, the

Hungarian government declared all valuable objects owned by

Jews—except for their most personal items—part of the

national wealth of Hungary. Hungary confiscated and

liquidated much of that property.

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At the close of World War II, the Allied and Associated

Powers entered into a peace treaty with Hungary. Treaty of

Peace with Hungary, Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S.

135 (1947 Treaty). The 1947 Treaty declared Hungary’s

annexation of Czechoslovakian territory null and void and

returned to Czechoslovakia certain regions Hungary had

illegally annexed. Id. art 1.

B.

The Foreign Sovereign Immunities Act (FSIA) provides

“the sole basis for obtaining jurisdiction over a foreign state in

our courts.” Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 434 (1989); see 28 U.S.C. § 1602 et seq.

Absent a pre-existing agreement with the United States

affecting the scope of sovereign immunity, a foreign sovereign

is generally immune, unless one of the FSIA’s enumerated

exceptions applies. See 28 U.S.C. §§ 1604, 1605-1605B,

1607; OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 31

(2015).

This case concerns the FSIA’s expropriation exception,

codified at Title 28, Section 1605(a)(3). That exception waives

foreign sovereign immunity in any case in which:

[1] rights in property taken in violation of

international law are in issue and [2.A.] 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

[2.B.] that property or any property exchanged

for such property is owned or operated by an

agency or instrumentality of the foreign state

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and that agency or instrumentality is engaged in

a commercial activity in the United States.

28 U.S.C. § 1605(a)(3). Generally speaking, the exception has

two requirements: (1) the claim must put in issue “rights in

property taken in violation of international law,” and (2) there

must be an adequate connection between the defendant and

both the expropriated property and some form of commercial

activity in the United States. Id. We refer to the latter as the

commercial-activity nexus requirement.

With respect to the first requirement, the Supreme Court

in Philipp 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. Under the domestic takings

rule, a foreign sovereign’s taking of its own nationals’ property

is not a violation of the international law of expropriation. Id.

at 709. Philipp thus generally bars plaintiffs who were

nationals of the expropriating state at the time of the alleged

taking from invoking the expropriation exception. See id. at

715.

The FSIA also contains a provision known as the “treaty

exception.” Simon I, 812 F.3d at 135-36; see 28 U.S.C. § 1604.

Per that provision, the FSIA’s baseline grant of immunity to

foreign sovereigns is “[s]ubject to existing international

agreements to which the United States [was] a party at the time

of enactment” of the FSIA. 28 U.S.C. § 1604. “[I]f there is a

conflict between the FSIA and such an agreement regarding the

availability of a judicial remedy against a contracting state, the

agreement prevails.” de Csepel v. Republic of Hungary (de

Csepel II), 859 F.3d 1094, 1100 (D.C. Cir. 2017) (quoting de

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Csepel v. Republic of Hungary (de Csepel I), 714 F.3d 591, 601

(D.C. Cir. 2013)).

C.

Two cases are consolidated before us on appeal: Simon v.

Republic of Hungary and Heller v. Republic of Hungary. The

plaintiffs in these cases—Rosalie Simon, Helen Herman,

Charlotte Weiss, Helena Weksberg, Rose Miller, Tzvi

Zelikovitch, Magda Kopolovich Bar-Or, Zehava (Olga)

Friedman, Yitzhak Pressburger, Alexander Speiser, Tibi Ram,

Moshe Perel, Vera Deutsch Danos, Ella Feuerstein Schlanger,

Steven Heller, and Charles Heller—are survivors of the

Hungarian Holocaust (collectively, Survivors).

Many were teenagers when Magyar Államvasutak Zrt

(MÁV), the Hungarian national railway, delivered them to

concentration camps in cattle cars. Two fled abroad and one

remained in hiding and avoided deportation. The Survivors

claim to have never received compensation for the personal

property the Hungarian defendants allegedly stole from them,

often while they were being transported to concentration camps

or killing fields.

1.

The Simon litigation has been ongoing for more than a

decade. The case was filed on October 20, 2010, as a putative

class action by plaintiffs Simon, Herman, Weiss, Weksberg,

Miller, Zelikovitch, Bar-Or, Friedman, Pressburger, Speiser,

Danos, Schlanger, Tibi Ram, and soon thereafter was amended

to add plaintiff Perel (collectively, the Simon Survivors or

Simon plaintiffs). Simon, Herman, Weiss, Weksberg, and

Miller are sisters, whose maiden name was Lebovics

(collectively, Lebovics sisters). The Simon Survivors filed

their complaint against the Republic of Hungary (Hungary) and

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MÁV (together, the Hungarian defendants). (One other

defendant was dismissed on grounds not challenged here).

The Hungarian defendants moved to dismiss for lack of

subject matter jurisdiction based on, inter alia, the FSIA’s

treaty exception, the Simon Survivors’ failure to allege the

elements necessary to invoke the expropriation exception, and

the political question doctrine. The district court granted the

Hungarian defendants’ motion, holding that the FSIA’s treaty

exception immunized them from suit. See Simon v. Republic

of Hungary (Simon-2014), 37 F. Supp. 3d 381, 424 (D.D.C.

2014). Because the district court deemed the treaty exception

dispositive, it declined to resolve the defendants’ alternative

grounds for dismissal. See id. at 407 n.21.

The Simon Survivors appealed, and we reversed. In Simon

I, we held that the treaty exception did not divest the court of

jurisdiction over the case because the Simon Survivors’ action

based on common-law claims did not create an express conflict

between the treaty provision on which the Hungarian

defendants relied, Article 27 of the 1947 Treaty, and the FSIA

immunity provisions. Simon I, 812 F.3d at 140. We further

held that the expropriation exception applied to the Simon

plaintiffs’ claims that they had been deprived of property

without compensation. Id. at 132, 140-49. We concluded that

those claims put in issue property “taken in violation of

international law” for purposes of the FSIA’s expropriation

exception, because the alleged takings of property amounted to

the commission of genocide. Id. at 142 (quoting 28 U.S.C.

§ 1605(a)(3); see id. at 141-46. Additionally, we concluded

that the Simon plaintiffs’ allegations satisfied the commercial-

activity nexus of the expropriation exception. Id. at 146-49.

We remanded the matter for the district court to consider

“whether, as a matter of international comity, it should refrain

from exercising jurisdiction over th[e] [Simon plaintiffs’]

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claims until the plaintiffs exhaust domestic remedies in

Hungary.” Id. at 151.

On remand from Simon I, the Simon Survivors filed an

amended complaint, and the Hungarian defendants moved to

dismiss a second time. The defendants sought dismissal based

on, inter alia, forum non conveniens and international comity

grounds. The district court granted the Hungarian defendants’

motion to dismiss on both grounds. Simon v. Republic of

Hungary (Simon-2017), 277 F. Supp. 3d 42, 47, 62, 67 (D.D.C.

2017).

The Simon Survivors appealed a second time. We again

reversed, holding that the district court erred in concluding that

the doctrine of forum non conveniens barred the Simon

plaintiffs’ suit and in declining statutorily secured jurisdiction

on international comity grounds. Simon II, 911 F.3d at 1176

(citing Philipp v. Fed. Republic of Germany, 894 F.3d 406

(D.C. Cir. 2018)).

The parties then litigated a third motion to dismiss that

focused on whether the Simon plaintiffs’ claims satisfied the

expropriation exception’s commercial-activity nexus

requirement. Simon v. Republic of Hungary (Simon-2020), 443

F. Supp. 3d 88, 116 (D.D.C. 2020). The district court denied

the motion and another appeal was taken in this case—this time

with the Hungarian defendants as the appellants. Id.

In the meantime, the Supreme Court granted the

Hungarian defendants’ petition for certiorari in Simon II on the

international comity question. The Supreme Court decided this

case simultaneously with Philipp, a related FSIA case. The

Philipp Court held that “the expropriation exception is best

read as referencing the international law of expropriation rather

than of human rights.” 141 S. Ct. at 712. Philipp thus clarified

that genocidal takings do not necessarily constitute takings “in

13

violation of international law” for purposes of the FSIA’s

expropriation exception, id. at 715 (quoting 28 U.S.C.

§ 1605(a)(3)), thereby partially abrogating our opinion in

Simon I. Without resolving the question of international

comity on which the Court had granted certiorari in this case,

the Supreme Court issued a judgment vacating our Simon II

decision and remanded the matter for further proceedings

consistent with Philipp. Republic of Hungary v. Simon, 141 S.

Ct. 691 (2021) (per curiam). In light of the Supreme Court’s

ruling, we remanded the case to the district court for further

proceedings consistent with Philipp.

With Simon back before the district court, the Hungarian

defendants moved, for a fourth time, to dismiss the Simon

Survivors’ claims for lack of subject matter jurisdiction under

the FSIA. The Hungarian defendants argued, inter alia, that

the domestic takings rule barred the Simon plaintiffs from

invoking the expropriation exception. They also argued that,

even if any Simon plaintiffs had been foreign nationals, the

treaty exception would divest the court of jurisdiction. In

response to the defendants’ domestic takings rule argument,

the Simon Survivors asserted that they were not Hungarian

nationals at the time of the alleged takings. They argued that,

during the relevant time period, two of the Simon Survivors

were de facto stateless and twelve were Czechoslovakian

nationals. The district court partially granted the motion, with

the outcome varying by Survivor. Simon-2021, 579 F. Supp.

3d at 140-41. The Hungarian defendants appeal and the Simon

Survivors cross-appeal.

2.

That brings us to the second action in this consolidated

appeal. More than a decade after the Simon litigation began, a

separate group of survivors brought a similar lawsuit against

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Hungary. The named plaintiffs, Charles Heller and Steven

Heller (together, Heller Survivors or Heller plaintiffs), are

brothers. They were toddlers in 1939, when their parents and

grandparents abandoned their businesses, personal

possessions, and homes in Hungary and fled with the brothers

to the United States. After the war, the Heller family returned

to Hungary to find other people living in their homes, operating

their businesses, and using their possessions. The Heller

Survivors do not claim to have been Czechoslovakian citizens,

nor do they claim to have acquired any non-Hungarian

nationality before the takings. Rather, they assert that they

were de facto stateless at the time of the alleged takings. Just

as it had in Simon, Hungary moved to dismiss the Hellers’

claims for lack of jurisdiction under the FSIA. Hungary argued

that the domestic takings rule barred application of the FSIA’s

expropriation exception because, according to Hungary, both

Heller plaintiffs were Hungarian nationals at the time of the

alleged takings. The district court granted Hungary’s motion

and dismissed the Heller Survivors’ claims. The brothers

appeal.

II.

We begin with the Survivors’ cross-appeal in Simon and

direct appeal in Heller challenging the district court’s

dismissals of the claims of the Survivors asserting de facto

statelessness. We refer to those plaintiffs as the Trianon

Survivors. They argue that, because Hungary rendered them

de facto stateless by the time of the alleged takings, the

domestic takings rule poses no bar to their claims against

Hungary. The district court rejected that argument. It granted

the Hungarian defendants’ motions to dismiss the Trianon

Survivors’ claims as incompatible with the Supreme Court’s

ruling in Philipp. See Simon-2021, 579 F. Supp. 3d at 115-19,

140; Heller, 2022 WL 2802351, at *7-9.

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The district court reasoned that, if the conduct alleged to

have rendered the Trianon Survivors stateless also amounted to

genocide, Philipp forecloses that statelessness from triggering

the expropriation exception. Simon-2021, 579 F. Supp. 3d at

119; Heller, 2022 WL 2802351, at *8. Thus, stopping short of

deciding whether the domestic takings rule is generally

inapplicable to stateless aliens, the district court read Philipp to

bar FSIA expropriation claims by plaintiffs claiming de facto

statelessness by virtue of experiencing genocide. Simon-2021,

579 F. Supp. 3d at 119; Heller, 2022 WL 2802351, at *7

(“Whatever the merits of plaintiffs’ argument that the domestic

takings rule does not, as a general matter, reach claims by

stateless persons, . . . Philipp ‘precludes reliance on the

egregiousness or genocidal nature of expropriative conduct as

a means to escape the limitation of the domestic takings rule.’”

(quoting Simon-2021, 579 F. Supp. 3d at 115)). We review the

district court’s jurisdictional rulings on questions of law de

novo, Ivanenko v. Yanukovich, 995 F.3d 232, 236 (D.C. Cir.

2021), and factual determinations for clear error, Price v.

Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192, 197

(D.C. Cir. 2004).

We affirm the dismissal of the Trianon Survivors’ claims,

albeit for reasons different from those of the district court. The

Supreme Court’s ruling in Philipp does not foreclose the

Trianon Survivors’ theory. That said, the Survivors have failed

to identify affirmative support in sources of international law

for their legal premise that a state’s taking of property from

stateless persons amounts to a taking “in violation of

international law” within the meaning of the FSIA, 28 U.S.C.

§ 1605(a)(3)—that is, in violation of “the international law of

expropriation,” Philipp, 141 S. Ct. at 712, 715. The Trianon

Survivors have thus failed to persuade us that their claims are

cognizable under the expropriation exception.

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A.

We first address the parties’ dispute over the implications

of Philipp, 141 S. Ct. 703. The Hungarian defendants argue

that the Survivors’ takings theory is “the same one that the

Supreme Court already rejected” in Philipp: “[t]hat

expropriations violate international law when they are

accompanied by egregious human-rights violations.” Hungary

Resp. & Reply Br. 27. In defendants’ view, Philipp precludes

the Survivors from relying on “the egregiousness of the human

rights abuses” inflicted by a foreign sovereign to claim

statelessness and thereby escape the limitation of the domestic

takings rule. Id. at 28; see also Simon-2021, 579 F. Supp. 3d

at 115-19; Heller, 2022 WL 2802351, at *7-9. Defendants

miss the key distinction between the Simon I theory the

Supreme Court rejected in Philipp and the Trianon Survivors’

position on remand that is now before us.

The Trianon Survivors’ theory does not conflict with

Philipp, but heeds its guidance. Philipp holds 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.” 141 S. Ct. at 715

(quoting 28 U.S.C. § 1605(a)(3)). Here is the relevant

framework as we understand it post-Philipp: The international

law of expropriation incorporates the domestic takings rule,

which treats a state’s taking of its own national’s property as a

domestic legal matter not governed by international law. See

id. at 709, 715. That rule is grounded in the traditional view

that “international law customarily concerns relations among

sovereign states, not relations between states and individuals.”

Id. at 709-10. Because “[a] domestic taking . . . d[oes] not

interfere with relations among states,” it does not “implicate[]

the international legal system” under that traditional view. Id.

at 710; see also Mezerhane v. República Bolivariana de

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Venezuela, 785 F.3d 545, 551 (11th Cir. 2015). In the wake of

World War II, even as “international law increasingly came to

be seen as constraining how states interacted not just with other

states but also with individuals, including their own citizens,”

the “domestic takings rule endured” within the sphere of the

international law of expropriation. Philipp, 141 S. Ct. at 710.

Accordingly, in determining whether the expropriation

exception applies post-Philipp, courts generally must identify

a plaintiff’s nationality for purposes of the domestic takings

rule. Absent any superseding principle or rule encompassed in

the international law of expropriation, the threshold question

is: Was the victim of the alleged taking a national of the

foreign-state defendant at the time of the taking? If yes, the

domestic takings rule bars application of the FSIA’s

expropriation exception; if no, that bar is inapplicable. See id.

at 715.

The Trianon Survivors have attempted to advance a viable

theory within the framework established by Philipp—that is,

based on an argument about their nationality at the time of the

alleged takings. They acknowledge that they were Hungarian

nationals before the war and do not claim that Hungary had

formally denationalized its Jewish population de jure by the

time of the alleged takings. They nonetheless contend the

domestic takings rule is inapplicable because Hungary had

rendered them de facto stateless for purposes of international

law before it took their property.

To that end, the Survivors draw on a 1955 decision of the

Permanent International Court of Justice that a nation may not,

consistent with international law, confer nationality upon an

individual (at least for purposes of exercising diplomatic

protection in an international tribunal) where there is no

“genuine connection” between that individual and the state.

Nottebohm Case (Liech. v. Guat.), Judgment, 1955 I.C.J. Rep.

18

4, 23, 26 (Apr. 6). The Survivors claim that the inverse

principle must also be true: A state deprives an individual of

their nationality when it severs the “genuine connection”

between itself and the individual. And, according to the

Survivors, Hungary severed that requisite connection by

subjecting Hungarian Jews to systematic persecution during

the Holocaust, thus rendering the Trianon Survivors de facto

stateless for purposes of international law. See Survivors’

Reply Br. 8-12; Survivors’ Br. 18-25. Such de facto stateless

persons, they claim, are properly treated as “aliens” for

purposes of the domestic takings rule. Survivors’ Br. 18. That

theory conforms to the analytic framework established by

Philipp: It draws on international law governing nationality to

argue that the Trianon Survivors were not Hungarian nationals

at the time of the alleged takings. The Trianon Survivors’

argument faces other obstacles, as discussed below, but it does

not conflict with Philipp itself.

The Hungarian defendants’ contrary reading of Philipp,

while not without some logical appeal, breaks down on closer

scrutiny. It is true, as the Hungarian defendants note, that the

Philipp Court rejected the plaintiffs’ attempt to rely on

international human rights law to satisfy the expropriation

exception’s “violation of international law” requirement. 141

S. Ct. at 712, 715. It follows, they reason, that expropriations

that violate international law “because of the ‘egregiousness of

the human rights abuses’” involved cannot give rise to a viable

takings claim for purposes of the FSIA’s expropriation

exception. Hungary Resp. & Reply Br. 28 (quoting Survivors’

Br. 23). Because the Trianon Survivors rely on Hungary’s

genocidal acts during the Holocaust (i.e., violations of

international human rights law) as the basis for their loss of

nationality, the Hungarian defendants contend that Philipp

forecloses their theory. See id. at 27-28; see also Simon-2021,

579 F. Supp. 3d at 118.

19

That reading of Philipp suffers from two principal flaws.

First, it is irreconcilable with the remand in Philipp. The

Supreme Court expressly reserved judgment on the plaintiffs’

alternative theory that Germany’s alleged taking was “not

subject to the domestic takings rule because the [plaintiffs]

were not German nationals at the time of the transaction,” and

remanded for the district court to consider that argument in the

first instance. Philipp, 141 S. Ct. at 715-16. Critically, the

Philipp plaintiffs’ only theory as to why they were not German

nationals at the time of the alleged takings was materially

identical to the Trianon Survivors’ nationality argument here:

They argued that “Jews may be deemed aliens of their

respective countries during the Holocaust because they were

not treated as citizens.” Resp. Br. 15 n.5, Philipp, 141 S. Ct.

703 (No. 19-351); see also id. at 27-28. As counsel for the

Philipp plaintiffs stated during oral argument, their theory was

that “German governmental treatment of German Jews in the

1930s,” i.e., the same treatment that they argued amounted to

genocide, “transgress[ed] th[e] nationality line.” Oral Arg. Tr.

68:1-4, Philipp, 141 S. Ct. 703 (2021) (No. 19-351). When the

Supreme Court chose to remand the Philipp plaintiffs’ claims,

it knew that the relevant conduct that could divest the plaintiffs

of their nationality was part and parcel of the genocidal acts

that they had claimed violated international human rights law.

If the Court’s reasoning in Philipp foreclosed that argument,

there would have been no reason to remand.

Second, the Hungarian defendants’ reasoning errs in

treating the limits Philipp imposed on the legal basis of an

expropriation actionable under the FSIA as also circumscribing

the historical facts germane to a claim under the expropriation

exception. Philipp clarified that “the expropriation exception

is best read as referencing the international law of

expropriation rather than of human rights.” 141 S. Ct. at 712.

Accordingly, “[w]e do not look to the law of genocide to

20

determine if we have jurisdiction over [a plaintiff’s] property

claims. We look to the law of property.” Id. That ruling barred

the plaintiffs from relying on the law of genocide to avoid the

domestic takings rule, which the Court viewed as an integral

principle of the international law of expropriation. See id. at

709-13, 715. What Philipp did not do, however, is limit the

underlying facts a court may consider in identifying whether

the expropriation exception applies or the domestic takings rule

is a bar. Philipp did not opine on, let alone foreclose, the

possibility that conduct that could give rise to a claim of

genocide might also bear on the nationality inquiry for

purposes of the expropriation exception or the domestic takings

rule. Rather, Philipp left open for lower courts to resolve what

conduct is relevant to the nationality inquiry. See id. at 716.

We thus reject the view that Philipp preempts the Trianon

Survivors’ takings theory.

B.

The Trianon Survivors’ invocation of the expropriation

exception nevertheless fails for an independent reason: Even

assuming the Trianon Survivors were de facto stateless at the

time of the alleged takings, the Survivors have not mustered

adequate support for their contention that a state’s taking of a

de facto stateless person’s property violates the international

law of expropriation.

Our inquiry regarding the rights of de facto stateless

persons is governed by the customary international law of

expropriation. That body of law determines whether an alleged

taking violates “international law” within the meaning of the

FSIA’s expropriation exception where, as here, the plaintiffs

do not rely on an express international agreement. See, e.g.,

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic

of Venezuela (Helmerich II), 743 F. App’x 442, 449 (2018)

21

(citing Restatement (Third) of Foreign Relations Law § 102(1)

(Am. L. Inst. 1987) (Third Restatement)); Beierwaltes v.

L’Office Federale de la Culture de la Confederation Suisse,

999 F.3d 808, 821 (2d Cir. 2021). Customary international law

is the “general and consistent practice of states followed by

them from a sense of legal obligation.” Third Restatement

§ 102(2). To demonstrate a taking in violation of international

law for purposes of the FSIA’s expropriation exception, the

Survivors must show that their legal theory “has in fact

crystallized into an international norm that bears the heft of

customary law.” Helmerich II, 743 F. App’x at 449.

To support their theory that a state’s taking of a de facto

stateless person’s property violates the international law of

expropriation, the Survivors principally rely on the Second

Restatement of Foreign Relations Law. As the Restatement in

effect when Congress enacted the FSIA, that source bears

authoritative weight in interpreting the Act. See Philipp, 141

S. Ct. at 712 (recognizing “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 United Nations v. City of New York, 551 U.S. 193, 199-

200 (2007))). The Survivors point to Section 185 of the Second

Restatement, which identifies a “taking by a state of property

of an alien” as “wrongful under international law” when certain

conditions are met. Restatement (Second) of Foreign Relations

Law § 185 (Am. L. Inst. 1965) (Second Restatement). And

they emphasize that Section 171 establishes that the term

“alien” encompasses both foreign nationals and stateless

persons “for purposes of the responsibility of a state for injury”

to an individual. Id. § 171.

Notably, however, Section 175 of the Second Restatement

makes clear that stateless persons are “without remedy” under

22

international law for takings claims against an expropriating

state, with certain exceptions. See id. § 175 & cmt. d. Section

175 provides:

The responsibility of [a] state under

international law for an injury to an alien cannot

be invoked directly by the alien against the state

except as provided by

(a) the law of the state,

(b) international agreement, or

(c) agreement between the state and the alien.

Id. § 175. And the lack of any remedy under customary

international law for a stateless alien is spelled out in Comment

(d) to that section:

d. Stateless aliens. Under traditional principles

of international law, a state, being responsible

only to other states, could not be responsible to

anyone for an injury to a stateless alien. Under

the rule stated in this Section, a stateless alien

may himself assert the responsibility of a state

in those situations where an alien who is a

national of another state may do so. However,

in those situations not covered by the rule stated

in this Section or by an international agreement

providing some other remedy, a stateless alien

is without remedy, since there is no state with

standing to espouse his claim.

Id. § 175 cmt. d; see also id. § 174 cmt. b (“[P]rocedures

allowing persons to proceed against states . . . are unavailable

except under the limited conditions specified in § 175, and,

espousal by the state of nationality continues to be generally

necessary for the effective assertion of an international

23

claim.”). In their briefing, the Survivors identify no Hungarian

law, international agreement, or agreement between Hungary

and the Trianon Survivors relevant to section 175 of the Second

Restatement. Tellingly, after the Hungarian defendants

pointed out the limits set forth in section 175 on when a

stateless person has a remedy, see Hungary Resp. & Reply Br.

26-27, the Survivors abandoned reliance on that section in their

reply and failed to explain why the defendants’ point was not

fatal to their theory, see Survivors’ Reply Br. 2-12.

The secondary sources that the Survivors cite likewise fail

to address that issue. To the extent those sources are helpful,

they merely accord with the view that stateless persons are

generally treated as aliens or non-nationals under state

domestic laws. See Marc Vishniak, The Legal Status of

Stateless Persons, in 6 Jews and the Post-War World 37

(Abraham G. Duker ed., 1945); Eric Fripp, Nationality and

Statelessness in the International Law of Refugee Status

§ 5.105 (2016).

The Survivors have thus failed to persuade us that a state’s

taking of a de facto stateless person’s property violates the

customary international law of expropriation. To be clear, we

do not foreclose the possibility that such support exists in

sources of international law not before us in this case or based

on arguments not advanced here. We note that the Survivors

nowhere argue in their briefing that a state’s taking of a

stateless person’s property may violate the international law of

expropriation even if stateless persons are “without remedy”

under international law for such violation, Second Restatement

§ 175 cmt. d. At oral argument, the Survivors for the first time

implied as much when, in response to probing from the bench

on the point, they contended that the FSIA’s expropriation

exception itself provides the necessary remedy for

expropriations from stateless persons in violation of

24

international law. See Oral Arg. 37:30-38:50, 41:58-42:25,

42:40-43:40. Generally, however, “arguments raised for the

first time at oral argument are forfeited.” Physicians for Soc.

Resp. v. Wheeler, 956 F.3d 634, 647 (D.C. Cir. 2020) (quoting

United States ex rel. Davis v. District of Columbia, 793 F.3d

120, 127 (D.C. Cir. 2015)). We accordingly decline to reach

that late-raised argument and take no position here on its

potential merit.

Our holding is more limited: On this record, the

Survivors have not demonstrated that their legal theory—that

a state’s taking of a de facto stateless person’s property violates

the international law of expropriation—has jelled into a

binding rule of customary international law. Because the

Survivors have therefore failed to show that the alleged seizure

of the Trianon Survivors’ property amounts to a “violation of

international law” for purposes of the FSIA’s expropriation

exception, 28 U.S.C. § 1605(a)(3), we affirm the district

court’s dismissal of their claims.

III.

Next, we address the parties’ challenges to the district

court’s partial denial of the defendants’ motion to dismiss the

claims of the Survivors who assert that they were

Czechoslovakian nationals at the time of the alleged takings.

We refer to those plaintiffs as the Czechoslovakian Territory

Survivors, as they each allege that they were either born or

raised in Czechoslovakian territory. The district court denied

the defendants’ motion to dismiss the claims of nine of the

Czechoslovakian Territory Survivors—namely, Magda

Kopolovich Bar-Or, Yitzhak Pressburger, Alexander Speiser,

Moshe Perel, and the five Lebovics sisters. See Simon-2021,

579 F. Supp. 3d at 131-35, 140-41. The court concluded that

they had plausibly alleged Czechoslovakian nationality,

25

thereby bringing their claims outside the scope of the domestic

takings rule. See id. at 131-35. However, the court dismissed

the claims of one of the Czechoslovakian Territory Survivors

(Ze’ev Tibi Ram) without prejudice, and the claims of two

(Tzvi Zelikovitch and Ella Feuerstein Schlanger) with

prejudice. See id. at 140. Because those plaintiffs had failed

to adequately allege non-Hungarian nationality at the time of

the alleged takings, the court reasoned, the domestic takings

rule barred application of the FSIA’s expropriation exception

to their claims. See id. at 120-21, 135-36, 140.

The Hungarian defendants appeal the district court’s

denial of their motion as to the nine non-dismissed plaintiffs’

claims. They argue that judicial estoppel precludes the

Survivors from denying their Hungarian nationality at this

stage in the litigation. The defendants further claim that the

district court applied the wrong pleading standard in

adjudicating their motion to dismiss the Czechoslovakian

Territory Survivors’ claims. And, in the alternative, they claim

the Survivors’ pleadings fall short even under the standard the

district court applied.

The Survivors cross-appeal the district court’s dismissal

with prejudice of Zelikovitch and Schlanger’s claims. They

assert that the district court erroneously concluded that

Zelikovitch and Schlanger had not plausibly alleged

Czechoslovakian nationality at the time of the alleged takings.

Neither party appeals the dismissal without prejudice of Ze’ev

Tibi Ram’s claim.

We largely affirm. We reject the Hungarian defendants’

threshold arguments regarding judicial estoppel and the

pleading standard for FSIA claims. Applying the same

plausible-pleading standard that the district court applied, we

affirm the court’s disposition of the Czechoslovakian Territory

26

Survivors’ claims, except that we direct the district court to

convert its allowance of the claims of the Lebovics sisters to

proceed and its dismissal of the claims of Zelikovitch and

Schlanger to dismissals without prejudice so those plaintiffs

may seek to cure the defects in their nationality allegations.

A.

We first address the Hungarian defendants’ argument that

judicial estoppel bars the Czechoslovakian Territory Survivors

from claiming Czechoslovakian nationality. The Hungarian

defendants contend that in Simon I the Survivors asserted they

were Hungarian nationals to avoid application of the FSIA’s

treaty exception, and thus cannot now deny Hungarian

nationality in relation to the expropriation exception. The

district court determined that the “defendants’ judicial estoppel

argument fails because defendants [did] not clearly show that

the Simon I court relied on plaintiffs’ representations of

nationality in an outcome-determinative fashion.” Simon-

2021, 579 F. Supp. 3d at 127. We review the district court’s

decision to not invoke judicial estoppel for abuse of discretion.

See Montgomery v. IRS, 40 F.4th 702, 709 (D.C. Cir. 2022);

Temple Univ. Hosp., Inc. v. NLRB, 929 F.3d 729, 734 (D.C.

Cir. 2019).

Judicial estoppel prevents a party from obtaining an

unfair advantage by “prevailing in one phase of a case on an

argument and then relying on a contradictory argument to

prevail in another phase.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211,

227 n.8 (2000)). Courts invoke judicial estoppel at their

discretion to protect the integrity of the judicial process. Id. at

749-50. In evaluating whether to apply the doctrine of judicial

estoppel, courts consider: “(1) whether the party’s later

position is ‘clearly inconsistent’ with its earlier position; (2)

27

‘whether the party has succeeded in persuading a court to

accept that party’s earlier position, so that judicial acceptance

of an inconsistent position in a later proceeding would create

the perception that either the first or the second court was

misled’; and (3) ‘whether the party seeking to assert an

inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party if not

estopped.’” Temple Univ. Hosp., 929 F.3d at 733 (quoting New

Hampshire, 532 U.S. at 750-51). The three factors are not a

formulaic test. See New Hampshire, 532 U.S. at 751. Rather,

they serve as guideposts to determining whether the “balance

of equities” weighs in favor of invoking the doctrine in a given

case. Id.

Applying those principles, we conclude the district court

exercised its sound discretion in holding that the balance of

equities tilts against applying judicial estoppel here. To start,

the first factor—whether a party’s later position is “clearly

inconsistent” with the earlier position on which it prevailed,

id.—does not favor the Hungarian defendants. In Simon I, the

parties did not litigate the question of those plaintiffs’

nationality in relation to the treaty exception—the relevant

legal issue on which the plaintiffs prevailed. See 812 F.3d at

135-40. And, while one sentence of the plaintiffs’ reply brief

in Simon I implied that they were Hungarian nationals, other

portions of the plaintiffs’ Simon I briefing ran expressly

counter to that view. For instance, in arguing that the domestic

takings rule did not bar their suit, the plaintiffs emphasized that

they 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.” Pls.’ Reply Br. 11, Simon

I, 812 F.3d 127 (D.C. Cir. 2016) (No. 14-7082), 2014 WL

6603413, at *11 (emphasis added). In other words, the

plaintiffs affirmatively argued in their Simon I briefing that

28

they were substantively stripped of Hungarian nationality.

That assertion accords, rather than conflicts, with the

Survivors’ current denial of their Hungarian nationality. Read

in full, the plaintiffs’ briefing in Simon I thus falls short of

advancing a “clearly inconsistent” position. New Hampshire,

532 U.S. at 751; see also id. (explaining judicial estoppel

targets “intentional self-contradiction” (quoting Scarano v.

Cent. R. Co. of N.J., 203 F.2d 510, 513 (3d Cir. 1953))).

The district court likewise permissibly weighed the second

factor—whether the party “succeeded in persuading a court to

accept that party’s earlier position,” id. at 750—against judicial

estoppel here, see Simon-2021, 579 F. Supp. 3d at 127. As

noted, the Simon plaintiffs made only an implicit reference to

their nationality in relation to the treaty exception in their

previous briefing. See Pls.’ Br. at 11-26, Simon I, 812 F.3d 127

(D.C. Cir. 2016) (No. 14-7082), 2014 WL 5035235, at *11-26;

Pls.’ Reply Br. 3, Simon I, 812 F.3d 127 (D.C. Cir. 2016) (No.

14-7082), 2014 WL 6603413, at *3; cf. Oral Arg. Tr. 4:20-5:2,

Simon I, 812 F.3d 127 (D.C. Cir. 2016)). And we had no

occasion in Simon I to determine the plaintiffs’ nationality,

given our holding that the treaty provision the defendants

invoked as the exclusive remedy for Hungarian nationals was

not in any event exclusive. 812 F.3d at 140. On an issue

neither contested nor decided in Simon I, our assumption then

that the plaintiffs were Hungarian nationals and our references

to them as such in analyzing the treaty exception are not

particularly weighty. See id. at 136-40. The Simon plaintiffs

thus did not in any meaningful sense “succeed[] in persuading”

us in Simon I that they were Hungarian nationals. New

Hampshire, 532 U.S. at 750.

Finally, the third factor—the degree to which the party

seeking to assert an inconsistent position will derive an unfair

advantage if not estopped, id. at 751—fails to tip the scales in

29

favor of estoppel for similar reasons. Given that in Simon I the

plaintiffs did not affirmatively persuade us of their Hungarian

nationality and, moreover, expressly denied legally effective

Hungarian nationality in portions of their briefing, any

unfairness caused by declining to invoke estoppel is, at most,

slight. Additionally, while a party’s inconsistent position need

not be a “but-for cause of the first tribunal’s decision” to

warrant estoppel, Temple Univ. Hosp., 929 F.3d at 735, a court

may consider the degree to which the party’s representation

influenced the prior ruling in determining what unfairness, if

any, would result from declining to invoke estoppel. As

discussed further in Part V, infra, our treaty-exception ruling

in Simon I did not turn on the plaintiffs’ nationality. The

district court permissibly weighed that consideration against

the Hungarian defendants’ request. See Simon-2021, 579 F.

Supp. 3d at 127.

We also conclude that the Czechoslovakian Territory

Survivors adequately preserved their claim of Czechoslovakian

nationality. But see Op. Dissenting in Part, at 5. This case is

unlike Philipp v. Stiftung Preussischer Kulturbesitz, No. 22-

7126, – F.4th –, 2023 WL 4536152 (D.C. Cir. July 14, 2023)

(per curiam), in which we held the plaintiffs failed to preserve

a claim of non-German nationality. Id. at *2. The operative

complaint in Philipp alleged that two of the individual

members of the plaintiff consortium fled Germany for the

Netherlands, see Second Am. Compl. ¶ 170, Philipp v. Stiftung

Preussischer Kulturbesitz, No. 1:15-cv-00266-CKK, (D.D.C.

Sept. 10, 2021), ECF No. 62, but plaintiffs never intimated

until their case reached the Supreme Court that they had

thereby become nationals of the Netherlands or of any other

state. We accordingly affirmed the district court’s holding that

any such claim had not been preserved.

30

Here, in contrast, plaintiffs Bar-Or, Pressburger, Speiser,

and Perel each plausibly alleged the minimum requirements for

Czechoslovakian nationality in the first amended complaint in

2011, see Simon First Am. Compl. ¶¶ 21, 38, 40, 80 (J.A. 104,

108, 109, 118)—allegations they retained in the second

amended (currently operative) complaint, and that the district

court and we deem adequate to bring their claim within the

FSIA expropriation exception. See infra pp. 38-39; Simon-

2021, 579 F. Supp. 3d at 140. Consistent with those

allegations, the Czechoslovakian Territory Survivors insisted

in their earliest responsive filing in the district court that “not

all of the plaintiffs were considered Hungarian citizens when

they were deported by Defendants,” as many of the deported

Jews were “citizens of Rumania, Poland and numerous other

neighboring areas.” Pls.’ Opp’n 3, 17, Simon v. Republic of

Hungary, No. 1:10-cv-01770-BAH (D.D.C. May 6, 2011),

ECF No. 24. And, in their brief to us in Simon I, they described

themselves as “Jewish Holocaust survivors who, on the

threshold of World War II, lived within today’s Hungarian

borders or in territory annexed by Hungary in 1938 after

Czechoslovakia’s dismemberment.” Pls.’ Br. 2, Simon I, 812

F.3d 127 (D.C. Cir. 2016) (No. 14-7082), 2014 WL 5035235,

at *2 (emphasis added). To be sure, the point could have been

more distinctly preserved throughout. But, like the district

court, see Simon-2021, 579 F. Supp. 3d at 123-24, 127-29, we

hold it adequately preserved.

With this full picture of the equities in view, we conclude

the district court acted within its sound discretion to deny the

Hungarian defendants’ request to judicially estop the

Czechoslovakian Territory Survivors from asserting

Czechoslovakian nationality at this stage in the litigation.

31

B.

We turn next to the Hungarian defendants’ assertion that

the district court applied the wrong standard to their motion to

dismiss the Czechoslovakian Territory Survivors’ claims under

the expropriation exception. According to the Hungarian

defendants, the Supreme Court’s decision in Bolivarian

Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co.

(Helmerich), 581 U.S. 170 (2017), “raised the bar to establish

jurisdiction under the FSIA,” because, they argue, it displaced

for FSIA claims the ordinary plausible-pleading standard

otherwise applicable on a motion to dismiss. Hungary Br. 20;

see also id. at 20-21. The Survivors reject that argument as

misconstruing Helmerich. They argue that, in view of

sovereign nations’ general immunity from suit, Helmerich held

inapplicable under the FSIA only the low jurisdictional

threshold of Bell v. Hood, 327 U.S. 678 (1946). In other words,

Helmerich did not make an exception to the ordinary pleading

requirements of Rule 8(a) as interpreted in Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556

U.S. 662 (2009). To establish federal question jurisdiction

under 28 U.S.C. § 1331, Bell v. Hood merely requires a legally

nonfrivolous claim, whereas Helmerich held that plaintiffs

must state a legally valid claim as a basis for jurisdiction under

the FSIA. We hold that the district court correctly applied the

ordinary plausible-pleading standard we have consistently

applied in FSIA cases, including Simon I, which the Supreme

Court’s decision in Helmerich left undisturbed.

As a threshold matter, the Survivors claim the Hungarian

defendants forfeited their Helmerich argument. Assuming that

objections to subject matter jurisdiction under the FSIA are

forfeitable, we exercise our discretion to reach the Hungarian

defendants’ Helmerich argument. We typically review

forfeited arguments “only in exceptional circumstances, as, for

32

example, in cases involving uncertainty in the law [or] novel,

important, and recurring questions of federal law.” Flynn v.

Comm’r, 269 F.3d 1064, 1069 (D.C. Cir. 2001). This case

presents such circumstances. Helmerich arguably has

introduced “uncertainty in the law” governing motions to

dismiss on foreign sovereign immunity grounds, and the

Hungarian defendants’ novel heightened pleading theory is

both important and likely to recur in future FSIA cases. Id.

The question is squarely presented and amply briefed in this

case, and we would be remiss if we did not resolve it.

We conclude Helmerich did not disturb the plausible-

pleading standard that we employed in Simon I. Rather,

Helmerich rejected the “nonfrivolous-argument standard” that

we had applied to the legal theory on which a plaintiff might

depend to establish jurisdiction under the FSIA in Helmerich I.

Helmerich, 581 U.S. at 187; see id. at 173-74, 177-83;

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic

of Venezuela (Helmerich I), 784 F.3d 804, 811-12 (D.C. Cir.

2015).

In our vacated Helmerich decision, we held that we would

grant a motion “on the grounds that the plaintiff has failed to

plead a ‘taking in violation of international law’ or has no

‘rights in property . . . in issue’ only if the claims are ‘wholly

insubstantial or frivolous.’” 784 F.3d at 812 (quoting Agudas

Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 943

(D.C. Cir. 2008)); see also id. at 811 (quoting Bell, 327 U.S. at

682). The legal issue before us was whether a Venezuela-

incorporated, wholly owned subsidiary of a U.S. company

could invoke the FSIA’s expropriation exception to sue the

Venezuelan government. See id. at 812. Venezuela argued that

the suit was barred because the subsidiary should be treated as

a Venezuelan national, bringing the alleged taking within the

domestic takings rule’s scope. Id. The plaintiffs countered that

33

international law recognizes an exception to that rule when a

sovereign unreasonably discriminates based on a company

shareholder’s nationality in expropriating that company’s

property. Id. at 812-13. The parties also disputed whether the

U.S. parent company had property rights in the subsidiary that

were cognizable under international law. Id. at 814. We

acknowledged that the plaintiffs had advanced novel legal

theories to support their invocation of the FSIA’s expropriation

exception, but in denying defendants’ motion to dismiss for

lack of jurisdiction we did not decide whether those theories

were valid. See id. at 812-16. Instead, we denied the motion

because we thought it sufficed that the plaintiffs had “asserted

a non-frivolous international expropriation claim” and had “put

[their] rights in property in issue in a non-frivolous way.” Id.

at 812 (quoting Chabad, 528 F.3d at 941); see id. at 813, 816.

The Supreme Court vacated that ruling. It held that “a

party’s nonfrivolous, but ultimately incorrect, argument that

property was taken in violation of international law is

insufficient to confer jurisdiction” under the FSIA. Helmerich,

581 U.S. at 174. Rather, the complaint must make “a legally

valid claim that a certain kind of right is at issue

(property rights) and that the relevant property was taken in a

certain way (in violation of international law).” Id. (emphasis

omitted). The Supreme Court took issue with our decision to

confirm the district court’s jurisdiction because “the

plaintiffs might have such a claim,” requiring instead that

courts decide at the jurisdictional threshold whether plaintiffs

actually have a claim that is legally cognizable under the FSIA.

Id. at 177. The Court found no support in the text, history, and

purpose of the FSIA for permitting courts to exercise

jurisdiction over a foreign sovereign “where there is a

nonfrivolous but ultimately incorrect argument that the taking

violates international law.” Id. at 182; see id. at 176-83, 187.

34

In holding the nonfrivolous-argument standard

inapplicable to the FSIA, Helmerich did not alter the plausible-

pleading standard. The Hungarian defendants conflate the

distinct issues of the validity of a legal theory and the standard

for assessing factual allegations in a complaint. As the

Supreme Court has made clear in other contexts, the plausible-

pleading standard clarified in Twombly and Iqbal “concern[s]

the factual allegations a complaint must contain to survive a

motion to dismiss,” Johnson v. City of Shelby, 574 U.S. 10, 12

(2014) (per curiam), not the degree to which plaintiffs’ legal

theories must be correct on their merits. Helmerich thus did

not create a heightened pleading standard. Contrary to the

Hungarian defendants’ argument, nothing in Helmerich affects

the familiar standard we have consistently applied to review

the plaintiffs’ factual allegations in FSIA cases like Simon I.

Indeed, prior to Helmerich, it was our longstanding

practice to apply the plausible-pleading standard to resolve

motions to dismiss on FSIA grounds where a defendant

challenges only the legal sufficiency of a plaintiff’s allegations.

See, e.g., Price, 389 F.3d at 194, 197; Rong v. Liaoning

Province Gov’t, 452 F.3d 883, 885 n.2, 888 (D.C. Cir. 2006);

Simon I, 812 F.3d at 147. And our rulings following Helmerich

have, correctly, continued to apply the plausible-pleading

standard in that context. See, e.g., Ivanenko, 995 F.3d at 236;

Valambhia v. United Republic of Tanzania, 964 F.3d 1135,

1139 (D.C. Cir. 2020); Schubarth v. Fed. Republic of

Germany, 891 F.3d 392, 398-99 (D.C. Cir. 2018); EIG Energy

Fund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 345

(D.C. Cir. 2018).

Finding no support in our precedent, the Hungarian

defendants turn to Rukoro v. Federal Republic of Germany,

976 F.3d 218 (2d Cir. 2020). But Rukoro does not bind us, and

to the extent it is inconsistent with our approach, we believe it

35

is incorrect. Rukoro reads Helmerich’s requirement of “a

legally valid claim” to have, sub silentio, adopted for purposes

of FSIA claims a heightened standard of pleading, beyond the

Rule 8(a) “plausibility standard” as clarified in Twombly and

Iqbal. Id. at 224-25. In so doing, Rukoro erroneously implies

that Helmerich’s requirement of a legally valid (not just

nonfrivolous) legal theory equates to a more demanding

standard of pleading. See id. at 225 (“Such allegations may

satisfy a plausibility standard, but not a valid argument

standard.”). The Second Circuit in Rukoro acknowledged that

it thereby departed from our approach in Simon I—a departure

it viewed as required by the Supreme Court’s ensuing decision

in Helmerich. Id. (citing Simon I, 812 F.3d at 147). Because

we conclude Helmerich left the generally applicable plausible-

pleading standard undisturbed, we affirm the district court’s

adherence to it.

In short, we hold that the plausible-pleading standard that

we applied in Simon I remains good law post-Helmerich. The

Hungarian defendants challenge the adequacy of the

Czechoslovakian Territory Survivors’ factual allegations—and

specifically, whether the pleadings plausibly allege facts that

support their alleged Czechoslovakian nationality, and hence

that their property was taken “in violation of international law.”

28 U.S.C. § 1605(a)(3). The district court was correct to apply

the plausible-pleading standard articulated in Simon I. We

must adhere to that same standard in our de novo review of the

Survivors’ nationality allegations, to which we now turn.

C.

Although the Survivors who claim statelessness cannot

prevail, we conclude that a subset of the Survivors who assert

Czechoslovakian nationality are entitled to proceed in the

litigation.

36

Recall that the district court denied the defendants’ motion

to dismiss the claims of nine of the Czechoslovakian Territory

Survivors: Magda Kopolovich Bar-Or, Yitzhak Pressburger,

Alexander Speiser, Moshe Perel, and the five Lebovics sisters.

See Simon-2021, 579 F. Supp. 3d at 131-35, 140-41. The court

dismissed the claims of one of the Czechoslovakian Territory

Survivors (Ze’ev Tibi Ram) without prejudice to his right to

replead and dismissed the claims of the other two (Tzvi

Zelikovitch and Ella Feuerstein Schlanger) with prejudice. See

id. at 140.

The Hungarian defendants challenge the district court’s

decision not to dismiss nine of the Czechoslovakian Territory

Survivors’ claims. They argue that, even assuming the

plausible-pleading standard applies, those Survivors failed to

adequately allege that they were Czechoslovakian nationals at

the time of the takings. Absent such allegations, they contend,

the Survivors have not pleaded that their property was “taken

in violation of international law” for purposes of the FSIA’s

expropriation exception. 28 U.S.C. § 1605(a)(3).

On cross-appeal, the Survivors challenge the district

court’s dismissal of Schlanger and Zelikovitch’s claims for

failing to plausibly allege Czechoslovakian nationality. They

argue that the district court overlooked relevant allegations and

filings in the record that demonstrate both were

Czechoslovakian nationals at the time of the takings.

We review de novo the district court’s jurisdictional

rulings on the adequacy of the Czechoslovakian Territory

Survivors’ allegations under the plausible-pleading standard.

See Schubarth, 891 F.3d at 398. We conclude that four of the

Czechoslovakian Territory Survivors—Bar-Or, Pressburger,

Speiser, and Perel—are entitled to proceed in the litigation.

However, we direct the district court to dismiss the claims of

37

the five Lebovics sisters, Zelikovitch, and Schlanger without

prejudice.

1.

We begin by deciding which body of law governs the

question: international or domestic law. “[W]hile it is for each

state to determine under its own law who are its nationals, such

law must be recognised by other states only ‘in so far as it is

consistent with international conventions, international

custom, and the principles of law generally recognised with

regard to nationality.’” 1 Oppenheim’s International Law

§ 378 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed.

1996) (quoting Hague Convention of 1930 on Certain

Questions Relating to the Conflict of Nationality Laws art. I,

Apr. 12, 1930, 179 L.N.T.S. 89); see also Oliver Dörr,

Nationality, Max Planck Encyclopedias of International Law

¶ 4 (recognizing that “international law limits [the] discretion”

of a state to “determine under its own law who are its nationals”

for purposes of “acceptance on the international plane”);

Nottebohm Case, 1955 I.C.J. Rep. at 23 (“[A] State cannot

claim that the rules it has . . . laid down are entitled to

recognition by another State unless it has acted in conformity

with [international principles governing nationality].”).

As relevant here, treaties executed at the close of World

War I established international obligations regarding the

nationality of persons living in territory transferred from the

Austro-Hungarian Empire to the newly created

Czechoslovakian state. The 1919 Treaty of St. Germain,

executed between the Allied and Associated Powers and

Czechoslovakia, imposed international obligations on

Czechoslovakia to confer nationality on certain persons within

Czechoslovakia’s new borders. See St. Germain Treaty arts. 3-

6. The 1920 Treaty of Trianon, which ended World War I

38

hostilities between Hungary and the Allied and Associated

Powers, also established rules to govern the nationalities of

individuals living in the newly formed Czechoslovakian state.

See Treaty of Trianon arts. 61-66, 213.

Accordingly, in this circumstance, we look first to

international law to determine the Survivors’ nationality status.

Czechoslovakian and Hungarian state law governing

nationality remains relevant, but only “in so far as it is

consistent with” the international legal obligations set forth in

the Treaty of St. Germain and the Treaty of Trianon. 1

Oppenheim’s International Law § 378 (quoting Hague

Convention of 1930 art. I).

2.

Within that framework, we examine whether the Survivors

have plausibly alleged Czechoslovakian nationality, thereby

bringing their claims outside the scope of the domestic takings

rule. Because the Hungarian defendants’ position “amounts to

a challenge to the legal sufficiency of the allegations . . . we

must thus ‘decide de novo whether the alleged jurisdictional

facts are sufficient to divest the foreign sovereign of its

immunity.” Mwani v. bin Laden, 417 F.3d 1, 15-16 (D.C. Cir.

2005) (formatting modified) (quoting Price, 389 F.3d at 197).

Dismissal is warranted only if no plausible inferences can be

drawn from the facts alleged that, if proven, would bring

plaintiffs’ claims within an exception to sovereign immunity

under the FSIA. Schubarth, 891 F.3d at 398. We must accept

as true the allegations in the complaint and grant the survivors

the benefit of all reasonable inferences that can be derived from

the facts alleged. See id. at 400-01.

The district court observed that Bar-Or, Pressburger,

Speiser, and Perel, each alleged that in the 1920s or 1930s they

were born in Czechoslovakian territory to parents “not known

39

to be of Hungarian nationality.” Simon-2021, 579 F. Supp. 3d

at 121 (citing Pls.’ Opp’n 4). From that fact, the district court

inferred that those Survivors’ parents also lived for a sufficient

period of time in territory that later became Czechoslovakia, so

meet the requirements for citizenship under Czechoslovakian

domestic law. See Simon-2021, 579 F. Supp. 3d at 131, 133-

35. The court therefore concluded that Bar-Or, Pressburger,

Speiser, and Perel had each plausibly alleged Czechoslovakian

nationality.

We agree with the district court’s conclusion as to those

four Survivors, though for different reasons. Bar-Or,

Pressburger, Speiser, and Perel each allege the minimum

requirements for Czechoslovakian citizenship under the 1919

St. Germain Treaty. Article 6 of that Treaty provides that “[a]ll

persons born in Czecho-Slovak territory who are not born

nationals of another State shall ipso facto become Czecho-

Slovak nationals.” St. Germain Treaty art. 6. That provision

requires that the Survivors have been born in Czechoslovakia

after its formation, which is precisely what those four plaintiffs

allege. Bar-Or “was born in 1928 in Korosmezo (Jasina), in

Hungarian-annexed Ruthenia (formerly Austria-Hungary, then

Czechoslovakia and now Ukraine).” Simon SAC ¶ 22 (J.A.

242). Pressburger “was born in Prague in 1933.” Id. ¶ 39 (J.A.

246). Speiser “was born on October 12, 1928, in Ersekujvar,

Czechoslovakia.” Id. ¶ 41 (J.A. 247). And Perel “was born in

Ersekujvar [Czechoslovakia] . . . on February 7, 1927.” Id.

¶ 81 (J.A. 256). Those Czechoslovakian Territory Survivors

have thereby adequately alleged Czechoslovakian nationality.

We accordingly affirm the district court’s denial of the

defendants’ motion to dismiss their claims.

As for the Lebovics sisters, we reverse. The district court

erroneously concluded that the sisters’ plausible allegation that

they were “raised in Tarackoz in Hungarian-annexed

40

Ruthenia,” Id. ¶ 10 (J.A. 239), supports an inference that they

were Czechoslovakian nationals at the time of the alleged

takings, see Simon-2021, 579 F. Supp. 3d at 131-32. Not so.

Being “raised” in Czechoslovakian territory is insufficient,

even under the St. Germain Treaty, to plausibly allege

Czechoslovakian nationality because we cannot reasonably

infer from that allegation that the sisters were born there; being

“raised” in a place is distinct from being “born” there, as the

district court itself noted. See id. at 132. Although the

pleadings do not specify the Lebovics sisters’ place and date of

birth, the Survivors’ counsel stated at oral argument that they

were all “born in Czechoslovakia” after its formation. Oral

Arg. 47:36-39; see id. at 47:06-36. Therefore, because it

appears the five Lebovics sisters may be able to cure the

jurisdictional defects in their complaint, we direct the district

court to dismiss their claims without prejudice.

Finally, we reject the defendants’ argument that the

Czechoslovakian Territory Survivors were required to obtain a

permit to acquire Czechoslovakian nationality pursuant to

Article 62 of the Trianon Treaty. The Survivors assert that the

defendants forfeited this argument because they did not raise it

before the district court. We nevertheless exercise our

discretion to address this issue on appeal. The defendants’

reading of the Trianon Treaty does not withstand close

scrutiny. First, the permit requirement in Article 62 covers a

limited category of individuals that does not include the

Czechoslovakian Territory Survivors. To understand Article

62’s scope, we begin with the provision it modifies: Article 61.

Article 61 of the 1920 Trianon Treaty assigned new

nationalities to citizens of the former Austro-Hungarian

Empire. It provides:

41

Every person possessing rights of citizenship

. . . in territory which formed part of the

territories of the former Austro-Hungarian

Monarchy shall obtain ipso facto to the

exclusion of Hungarian nationality the

nationality of the State exercising sovereignty

over such territory.

Treaty of Trianon art. 61. Article 61 thus grants

Czechoslovakian nationality to citizens of any territory of the

Austro-Hungarian Monarchy that was transferred to the newly

formed Czechoslovakian state. See id.

Article 62 then limits the scope of Article 61’s

reassignment of nationalities. It states:

Notwithstanding the provisions of Article 61,

persons who acquired rights of citizenship after

January 1, 1910, in territory transferred under

the present Treaty to [Czechoslovakia], will not

acquire [Czechoslovakian] nationality without

a permit from the [Czechoslovakian] State . . . .

Id. art. 62. Read in context with Article 61, the phrase “persons

who acquired rights of citizenship after January 1, 1910, in

territory transferred under the present Treaty to

[Czechoslovakia],” refers to persons who acquired citizenship

in the Austro-Hungarian Empire after 1910 in the territories

that were “transferred” to Czechoslovakia in 1918; it does not

refer more broadly to all persons who acquired

Czechoslovakian citizenship after January 1, 1910. Id. Indeed,

Czechoslovakia did not exist as an independent state until 1918

so it would have been impossible for an individual to acquire

Czechoslovakian citizenship between 1910 and 1918.

42

Accordingly, we read Article 62’s permit requirement to

cover those who acquired citizenship in the Austro-Hungarian

Empire in the window after January 1910 and before the

formation of Czechoslovakia in 1918—in other words, late-

arriving Austro-Hungarian citizens without deep roots in the

territory that became Czechoslovakia. See Treaty of Trianon

art. 62. Because Bar-Or, Pressburger, Speiser, and Perel each

allege that they were born after 1920, see Simon SAC ¶¶ 22,

39, 42, 81 (J.A. 242, 246-47, 256)—and because the Lebovics

sisters may amend to allege as much, see Oral Arg. 47:06-38—

they do not fall into the category of persons covered by the

permit requirement in Article 62 of the Trianon Treaty.

Second, and in any event, even if the defendants’ reading

of Article 62 were correct, Article 65 of the Trianon Treaty

expressly preserves rights to choose any other nationality

available under earlier treaties between the Allied and

Associated Powers and Czechoslovakia. See Treaty of Trianon

art. 65. Specifically, Article 65 provides that the Treaty of

Trianon does not limit the ability of persons it covers to

“choose any other nationality which may be open to them”

pursuant to other treaties “concluded . . . between any of the

Allied and Associated Powers themselves,” including the St.

Germain Treaty. Id. Therefore, even assuming the permit

requirement in Article 62 of the Trianon Treaty applied to the

Survivors, it would not have eliminated the option to accept

Czechoslovakian nationality available to the Survivors under

Article 6 of the St. Germain Treaty.

Before proceeding, we acknowledge that the Survivors did

not draw on the St. Germain Treaty in support of their

nationality claims before the district court. Nor did the district

court consider it. See Simon-2021, 579 F. Supp. 3d at 129-35.

Ordinarily, we refrain from “consider[ing] an issue not passed

upon below.” Liff v. Off. of the Inspector Gen. for the U.S.

43

Dep’t of Lab., 881 F.3d 912, 919 (D.C. Cir. 2018) (quoting

Singleton v. Wulff, 428 U.S. 106, 120 (1976)). However, we

have discretion to do so “as may be justified by the

[circumstances] of individual cases.” Id. We elect to exercise

that discretion here. Interpreting Article 6 of the St. Germain

Treaty and understanding how it operates in the context of the

Czechoslovakian Territory Survivors’ nationality claims does

not require any fact finding or “depend on any additional facts

not considered by the district court,” id. (quoting Roosevelt v.

E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C.

Cir. 1992)), as demonstrated by the preceding analysis.

Addressing the Survivors’ arguments under the St. Germain

Treaty also “avoids unnecessary expenditure of judicial

resources and expedites final resolution of the parties’

dispute.” Id.

3.

That brings us to the Survivors’ cross appeal. They

contend that the district court erred in dismissing the claims of

Tzvi Zelikovitch and Ella Feuerstein Schlanger. We affirm the

district court’s dismissal of those two Survivors’ claims.

However, we conclude the district court should have dismissed

their claims without prejudice.

As they stand, the allegations in the Second Amended

Complaint fail to push Zelikovitch and Schlanger’s nationality

claims across the line from conceivable to plausible. Recall

that Article 6 of the St. Germain Treaty provides “[a]ll persons

born in Czecho-Slovak territory who are not born nationals of

another State shall ipso facto become Czecho-Slovak

nationals.” St. Germain Treaty art. 6 (emphasis added).

Accordingly, if Zelikovitch and Schlanger were born nationals

of another state (e.g., by descent), even proof that they were

44

born in Czechoslovakian territory would not, per Article 6,

have made them Czechoslovakian nationals. See id.

Although the Second Amended Complaint alleges that

Zelikovitch and Schlanger were each born in Czechoslovakian

territory, the pleadings also suggest that they may have been

born nationals of another State—namely, Hungary. See Simon

SAC ¶¶ 15, 73 (J.A. 240, 254). According to the Survivors,

and as summarized by the district court, under Hungarian law

at the time, “one acquired Hungarian citizenship . . . by descent

from a citizen parent.” Simon-2021, 579 F. Supp. 3d at 120

(quoting Pls.’ Opp’n 25-26). And the pleadings provide reason

to believe Zelikovitch and Schlanger’s parents may have been

Hungarian citizens at the time of Zelikovitch and Schlanger’s

births. As for Zelikovitch, the Second Amended Complaint

alleges that his parents were “both Hungarian citizens.” Simon

SAC ¶ 15 (J.A. 240) (emphasis added). With respect to

Schlanger, the pleadings allege she was “born in 1930 to a

Hungarian family resident in Benedike, Czechoslovakia,

approximately 10 km from Munkács.” Id. ¶ 73 (J.A. 254)

(emphasis added). In light of those allegations, we cannot

conclude that it is plausible, as opposed to merely possible, that

Zelikovitch and Schlanger acquired Czechoslovakian

nationality per Article 6 of the St. Germain Treaty upon birth.

The district court therefore correctly granted the defendants’

motion to dismiss the claims of Zelikovitch and Schlanger.

That leaves the question whether the district court

correctly dismissed their claims with prejudice. The “standard

for dismissing a complaint with prejudice is high.” Rudder v.

Williams, 666 F.3d 790, 794 (D.C. Cir. 2012) (quoting Belizan

v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006)). Dismissal

with prejudice is warranted when “the allegation of other facts

consistent with the challenged pleading could not possibly cure

the deficiency.” Id. (quoting Belizan, 434 F.3d at 583); accord

45

Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1340 (D.C.

Cir. 2015).

Here, it is possible that Zelikovitch and Schlanger could

allege facts consistent with the Second Amended Complaint

that would support their claims of Czechoslovakian nationality.

Schlanger’s allegation that she was born to a “Hungarian

family,” Simon SAC ¶ 73 (J.A. 254), does not necessarily mean

that her parents were Hungarian citizens at the time of her birth.

And, in their briefing, the Survivors state that the complaint

should have read “Hungarian-speaking” family. Survivors’ Br.

40 n.26 (emphasis added). If the Survivors were able to amend

the complaint to clarify, for example, that Schlanger’s parents

were not Hungarian citizens but only Hungarian speakers at the

time of her birth, the pleadings would thereby plausibly allege

that Schlanger acquired Czechoslovakian nationality at birth

under Article 6 of the St. Germain Treaty. See St. Germain

Treaty art. 6.

Similarly, the relevant allegations and filings in the record

regarding Zelikovitch leave open the possibility that he did not

inherit Hungarian nationality from his parents, and thus would

have acquired Czechoslovakian nationality upon birth.

Although Zelikovitch’s parents may have been “Hungarian

citizens” prior to the creation of Czechoslovakia, Simon SAC

¶ 15 (J.A. 240), there is reason to believe his parents may have

become Czechoslovakian nationals upon that country’s

formation. Pursuant to Article 3 of the St. Germain Treaty,

Czechoslovakia agreed to confer Czechoslovakian nationality

on all “Hungarian nationals” who were, as of the Treaty’s

effective date, “habitually resident or possessing the rights of

citizenship . . . in territory which is or may be recognised as

forming part of Czechoslovakia.” St. Germain Treaty art. 3.

Zelikovitch’s father was born in 1895 in Uglya, an Austro-

Hungarian region that became part of Czechoslovakia upon the

46

country’s formation. See Zelikovitch Decl. ¶¶ 5-6 (J.A. 226);

Simon SAC ¶ 15 (J.A. 240). And, as of 1928, Zelikovitch’s

entire family was living in Uglya, where his father was a

“prosperous blacksmith.” Simon SAC ¶ 15 (J.A. 240). Those

allegations raise the possibility that Zelikovitch’s parents were

residents of Uglya at the time of Czechoslovakia’s formation

in 1918. If that is the case, Zelikovitch’s parents likely would

have acquired Czechoslovakian citizenship in 1918 unless they

affirmatively chose another citizenship. See St. Germain

Treaty arts. 3, 5. Accordingly, it remains possible that

Zelikovitch could cure the deficiency by alleging facts

consistent with the Second Amended Complaint that would

support the inference that his parents were not in fact

Hungarian nationals at the time of his birth, even if they were

Austro-Hungarian nationals before the creation of

Czechoslovakia. Dismissal without prejudice was thus

warranted as to both Zelikovitch and Schlanger.

* * *

To sum up, four of the twelve Czechoslovakian Territory

Survivors adequately alleged they were Czechoslovakian at the

time of the takings and thus those claims survive dismissal. We

reverse the decision to allow the claims of the five Lebovics

sisters to proceed as alleged and affirm the dismissal of the

claims of Zelikovitch and Schlanger. However, we hold that

those seven plaintiffs should be permitted to amend their

pleadings if they have evidentiary support enabling them,

consistent with applicable requirements, to cure the identified

shortcomings. See Fed. R. Civ. P. 11(b)(3).

IV.

As an alternative to their nationality-based arguments that

the domestic takings rule does not bar their claims, the

Survivors invoke the 1920 Treaty of Trianon as an independent

47

basis for demonstrating a “tak[ing] in violation of international

law” for purposes of the expropriation exception. 28 U.S.C.

§ 1605(a)(3). Their argument proceeds in two steps. First,

they contend that a “violation of the Trianon Treaty is a

violation of international law within the scope of the

expropriation exception.” Survivors’ Br. 27. Second, they

claim Hungary violated the Trianon Treaty—and specifically,

provisions guaranteeing religious free exercise and equal

protection under the law without regard to race or religion—by

“target[ing] for persecution, exploitation, and property

expropriation its Jewish inhabitants, including Survivors[,]

whether or not they were Hungarian nationals.” Id. at 29.

The Survivors’ argument fails at step one. Recall Philipp

held that only violations of “the international law of

expropriation” count for purposes of the FSIA’s expropriation

exception. 141 S. Ct. at 715. The treaty provisions that the

Survivors claim Hungary breached—Articles 55 and 58 of the

Treaty of Trianon—do not fit that description.

As noted, the 1920 Treaty of Trianon is the peace treaty

that formally concluded hostilities between Hungary and the

Allied and Associated Powers in World War I. See Treaty of

Trianon, preamble. The Treaty addresses a broad range of

issues related to the end of hostilities, including Hungary’s

post-war borders, id. arts. 27-35; Hungary’s recognition of the

newly independent states of Yugoslavia and

Czechoslovakia, id. arts. 41-44, 48-52; demobilization of

Hungary’s military forces, id. arts. 102-43; and penalties and

reparations Hungary owed to the Allied and Associated

Powers, id. arts. 157-74. While some provisions of the Treaty

reference property, see, e.g., id. arts. 212, 232(1)(e), the Treaty

as a whole is not focused on property rights or state

takings. And the Survivors do not meaningfully contend that

the Treaty of Trianon as a whole is part of the “international

48

law of expropriation.” Philipp, 141 S. Ct. at 715. The

Survivors must therefore advance a valid argument that the

specific provisions they allege Hungary breached, Articles 55

and 58, are correctly characterized as international law of

expropriation.

The Survivors have failed to do so. “The interpretation of

a treaty . . . begins with its text.” Medellín v. Texas, 552 U.S.

491, 506 (2008). Here, the text of the Treaty belies the

Survivors’ characterization of Articles 55 and 58 as

“international law of expropriation.” Philipp, 141 S. Ct. at 715.

Neither provision relied on by the Survivors even mentions

property or takings. Rather, both provisions govern

“protection of minorities” in post-war Hungary. Treaty of

Trianon pt. III § IV (capitalization altered). Article 55 requires

Hungary to “assure full and complete protection of life and

liberty to all inhabitants of Hungary without distinction of

birth, nationality, language, race or religion,” and establishes

that “[a]ll inhabitants of Hungary shall be entitled to the free

exercise, whether public or private, of any creed, religion or

belief whose practices are not inconsistent with public order or

public morals.” Id. art. 55. The provision of Article 58 on

which the Survivors rely establishes similar protections for

minorities. It mandates that “Hungarian nationals who belong

to racial, religious or linguistic minorities shall enjoy the same

treatment and security in law and in fact as the other Hungarian

nationals.” Id. art. 58.

The absence of any mention of property in Articles 55 and

58—which protect Hungarian inhabitants and nationals—is

notable given that other provisions of the Trianon Treaty

explicitly address property rights of foreign nationals. See,

e.g., id. arts. 212, 232. Article 232, for instance, situated within

the Treaty section titled “Property, Rights and Interests,”

provides “[t]he nationals of Allied and Associated Powers shall

49

be entitled to compensation in respect of damage or injury

inflicted upon their property, rights or interests.” Id. art.

232(e). Article 212 similarly establishes that “[t]he nationals

of the Allied and Associated Powers shall enjoy in Hungarian

territory a constant protection for their persons and for their

property, rights and interests.” Id. art. 212. These provisions

show the drafters of the Trianon Treaty specifically considered

property rights and state takings elsewhere in the Treaty, but

chose not to address property rights in Articles 55 and 58. The

text of the Treaty thus provides strong evidence that its drafters

did not intend Articles 55 and 58 to impose on Hungary

international-law obligations related to takings of its own

nationals’ property—undercutting the Survivors’ claim that

those provisions fall within the international law of

expropriation or, as the Philipp Court also called it, the

international “law of property.” 141 S. Ct. at 712.

The Survivors counter that the provisions in Articles 55

and 58 mandating equal treatment of Hungarian nationals

regardless of race or religion necessarily encompass

protections for property rights and are therefore part of the

international law of expropriation. That argument proves too

much. The same could be said of many principles of human

rights law—i.e., that they encompass protections for property

rights. Take, for instance, the prohibition on “systematic racial

discrimination” recognized by customary international human

rights law. Third Restatement § 702(f). That principle

presumably protects against systematic property takings on the

basis of race conducted “as a matter of state policy.” Id. § 702

cmt. i. But that does not make that rule of customary human

rights law, any more than the law against genocide, a source of

international law under Philipp that could support a claim

under the FSIA’s expropriation exception. See 141 S. Ct. at

712. Philipp instructs that plaintiffs must show that the

international legal obligation on which they rely falls within

50

the “international law of expropriation rather than of human

rights.” Id. (emphasis added). On that score, the Survivors

come up short. Given the lack of any reference to property in

Articles 55 and 58, in contrast to other provisions of the

Trianon Treaty, we conclude that the Survivors have failed to

advance a viable argument that those Articles constitute

“international law of expropriation” for purposes of the FSIA’s

expropriation exception. Id. at 715.

There is no question that Hungary’s persecution of its

Jewish population during the Holocaust breached its

obligations under Articles 55 and 58 of the Treaty of Trianon.

But the Survivors have failed to demonstrate that Hungary’s

alleged breach of the Trianon Treaty amounted to a “violation

of international law” within the meaning of the FSIA’s

expropriation exception. See Philipp, 141 S. Ct. at 715.

V.

We turn next to the Hungarian defendants’ argument that,

even assuming the Survivors were non-Hungarian nationals at

the time of the alleged takings, their claims are barred by the

FSIA’s “treaty exception.” That exception is codified in Title

28, Section 1604, which provides that the FSIA’s baseline

grant of immunity to foreign sovereigns is “[s]ubject to

existing international agreements to which the United States

[was] a party at the time of enactment of th[e] Act.” 28 U.S.C.

§ 1604. The “exception applies when international agreements

‘expressly conflict’ with the immunity provisions of the

FSIA.” Amerada Hess, 488 U.S. at 442 (formatting modified)

(quoting H.R. Rep. No. 94-1487, at 17 (1976); S. Rep. No. 94-

1310, at 17 (1976)). Under the exception, “if there is a conflict

between the FSIA and such an agreement regarding the

availability of a judicial remedy against a contracting state, the

51

agreement prevails.” de Csepel II, 859 F.3d at 1100 (quoting

de Csepel I, 714 F.3d at 601).

The Hungarian defendants’ claim to immunity under the

treaty exception rests on the 1947 Treaty of Peace, which

formally established peaceful relations between Hungary and

the Allied and Associated Powers following World War II. See

Simon I, 812 F.3d at 136. According to the defendants, the

1947 Treaty provides “the exclusive means for non-Hungarian

claimants to recover from Hungary for wartime property

losses,” thereby barring any non-Hungarian Survivors from

proceeding under the FSIA pursuant to the treaty exception.

Hungary Br. 30.

Two provisions of the 1947 Treaty are relevant here:

Articles 26 and 27. The former requires Hungary to “restore

all legal rights and interests in Hungary of the United Nations

and their nationals as they existed on September 1, 1939,” and

to “return all property in Hungary of the United Nations and

their nationals as it now exists.” 1947 Treaty art. 26(1). Article

26 further provides that, “[i]n cases where the property has not

been returned within six months from the coming into force of

the present Treaty, application shall be made to the Hungarian

authorities not later than twelve months from the coming into

force of the Treaty,” except in certain cases. Id. art. 26(2).

Article 26 defines covered “United Nations nationals” as

“individuals who [we]re nationals of any of the United

Nations . . . at the coming into force of the present Treaty,”

which included Czechoslovakia, and all persons who, “under

the laws in force in Hungary during the war, ha[d] been treated

as enemy.” Id. art. 26(9)(a). Article 27, for its part, requires

Hungary to provide restoration of (or compensation for)

property that the Hungarian government seized during the war

from “persons under Hungarian jurisdiction” whom Hungary

52

subjected to such seizures “on account of the[ir] racial origin

or religion.” Id. art. 27(1).

The defendants acknowledge we already rejected their

argument that Article 27 of the 1947 Treaty forecloses extra-

treaty means of recovery. See Hungary Br. 28-29; Simon I, 812

F.3d at 140; see also Simon-2021, 579 F. Supp. 3d at 127 n.26

(D.D.C. 2021) (declining to revisit the treaty exception). In

Simon I, we held that “Article 27 secures one means by which

Hungarian victims can seek recovery against Hungary for their

wartime property losses, but not to the exclusion of other

available remedies.” 812 F.3d at 140. We therefore concluded

the defendants had failed to identify an “express conflict

between an ‘existing international agreement[]’ and the FSIA’s

other immunity exceptions for purposes of the FSIA’s treaty

exception.” Id. (quoting 28 U.S.C. § 1604).

The Hungarian defendants claim our Simon I ruling poses

no obstacle to their renewed treaty-exception argument. They

argue that, if the Survivors were non-Hungarian nationals at

the time of the alleged takings, then Article 26, rather than

Article 27, of the 1947 Treaty would apply to their claims. And

Article 26, the defendants argue, provides the exclusive means

by which non-Hungarians may seek compensation for property

taken from them by Hungary during World War II, thereby

barring the Survivors from proceeding under the FSIA.

The Hungarian defendants’ argument falters at the outset.

Their threshold claim—that Article 26 alone covers the

Survivors’ property losses if they are indeed non-Hungarian

nationals—is belied by the text of the 1947 Treaty. By its plain

terms, Article 27 also applies. It establishes a restoration-or-

compensation scheme for property seized by the Hungarian

government during the war from “persons under Hungarian

jurisdiction” who were targeted on account of their race or

53

religion. 1947 Treaty art. 27(1). It nowhere limits its coverage

to Hungarian nationals under Hungarian jurisdiction. See id.

Other provisions of the Treaty confirm that its drafters

distinguished between “persons under Hungarian jurisdiction”

and “Hungarian nationals.” Article 2, for instance, provides

different protections in its first and second clauses for “persons

under Hungarian jurisdiction” as compared to “persons of

Hungarian nationality.” Id. art. 2(1)-(2); see also, e.g., id. arts.

26(4), 29(1), 29(3)-(5), 30(1)-(2), 30(4), 32(1), 32(3) (using the

phrase “Hungarian nationals”). Because there is no dispute

that the Survivors were in territory annexed by Hungary and

thereby “under Hungarian jurisdiction,” nor is there any

dispute the Survivors adequately allege that Hungary seized the

Survivors’ property on account of their religion, Article 27

applies to their claims irrespective of their status as non-

Hungarian nationals. Id. art. 27(1).

That raises the question, however, whether Article 27 as

applied to non-Hungarian nationals provides the exclusive

means for such persons to obtain recovery for Hungary’s

seizure of their property during the war. As noted, our ruling

in Simon I assumed that the plaintiffs were Hungarian nationals

for purposes of the treaty-exception inquiry. See 812 F.3d at

136-40. We conclude, however, that our reading of the

Treaty’s text in Simon I holds as applied to claims brought by

non-Hungarian nationals.

As we explained in Simon I, “[t]he terms of Article 27 do

not speak in the language of exclusivity.” Id. at 137. Although

Article 27 provides certain rights to victims of the Holocaust

regarding property the Hungarian government confiscated, “it

says nothing about whether those rights are exclusive of other

claims” that covered individuals might bring. Id. Other World

War II peace treaties, by contrast, contain express waivers of

extra-treaty claims. See id. at 137-38 (citing Treaty of Peace

54

with Japan art. 14(a)-(b), Sept. 8, 1951, 3 U.S.T. 3169). And,

as we explained, “[t]he 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. Indeed, Article 32 of the 1947 Treaty states that

“Hungary waives all claims of any description against the

Allied and Associated Powers on behalf of the Hungarian

Government or Hungarian nationals arising directly out of the

war,” 1947 Treaty art. 32(1), but includes no reciprocal waiver

of all claims by Allied and Associated Powers or their nationals

against Hungary, see id. arts. 27, 32. The text of the Treaty

thus makes clear that Article 27 does not foreclose extra-treaty

claims for covered individuals, including non-Hungarian

nationals—and thus does not immunize Hungary from the

Survivors’ suit under the FSIA’s treaty exception. See Simon

I, 812 F.3d at 140; 28 U.S.C. § 1604.

The same goes for Article 26 of the 1947 Treaty. Like

Article 27, Article 26 speaks only to Hungary’s obligations to

compensate United Nations nationals, as defined by the Treaty.

1947 Treaty art. 26(1), (9). It does not address, let alone

foreclose, extra-treaty claims that such nationals might seek to

bring against Hungary. See id. art. 26(1). Moreover, Article

32’s one-way waiver provision—eliminating claims arising out

of the war by Hungary on behalf of itself or its nationals against

the Allied and Associated Powers but not vice versa, id. art.

32(1)—convinces us that Article 26 lacks such exclusionary

language by design. As further evidence of its non-exclusive

nature, Article 26 overlaps in coverage with Article 27: A

United Nations national who was “under Hungarian

jurisdiction” during the war and whose property Hungary

confiscated on account of their religion would fall within the

scope of both Articles. Id. art. 27; see id. arts. 26-27. We

therefore do not read Article 26 to provide an exclusive avenue

for covered individuals to seek compensation for property

55

losses during the war. And, accordingly, we see no “express

conflict” between permitting the Survivors’ action to proceed

under the FSIA and Article 26 of the 1947 Treaty. Simon I,

812 F.3d at 140; accord Amerada Hess, 488 U.S. at 441-43.

The Hungarian defendants counter that, because our

reasoning in Simon I “relied on Plaintiffs’ Hungarian

nationality to hold that the treaty exception did not bar” their

claims, we must reach a “different result” now that the

Survivors deny their Hungarian nationality. Hungary Br. 28-

29. But our principal reasoning in Simon I was that the Treaty’s

text did not support the defendant’s exclusive-remedy

argument. Building from there, the analysis specific to

Hungarian nationals provided “context” that we concluded

“further weigh[ed] against construing [Article 27] to foreclose

extra-treaty claims.” Simon I, 812 F.3d at 138. We found it

informative, for instance, that the Allied powers “could, and

did, impose an obligation on Hungary to provide a minimum

means of recovery to Hungarian victims for Hungary’s

wartime wrongs,” but we did not read Article 27 to implicitly

“render that means of recovery an exclusive one because [the

Allies] had no power to settle or waive the extra-treaty claims

of another country’s (Hungary’s) nationals.” Id. In other

words, the case for non-exclusivity was even stronger when

considering Article 27 as applied to Hungarian nationals. See

id. at 138-39. But, given the clear textual support detailed

above, those additional points are not necessary to our

conclusion here that neither Article 26 nor 27 bars extra-treaty

claims by non-Hungarian nationals.

In short, we perceive no conflict between the provisions of

the 1947 Treaty relied on by the defendants and permitting

those Survivors who have plausibly alleged Czechoslovakian

nationality to proceed under the FSIA’s expropriation

exception. We thus affirm the district court’s denial of the

56

Hungarian defendants’ motion to dismiss the Survivors’ claims

on that ground.

VI.

That brings us to the Hungarian defendants’ final

argument: that the expropriation exception’s requirement of a

nexus between the disputed property and a defendant’s

commercial activity in the United States remains unmet. The

expropriation exception requires that the property at issue in

the suit “or any property exchanged for such property” be

either (1) “present in the United States in connection with a

commercial activity carried on in the United States by the

foreign state” or (2) “owned or operated by an agency or

instrumentality of the foreign state and that agency or

instrumentality is engaged in a commercial activity in the

United States.” 28 U.S.C. § 1605(a)(3). Even as the FSIA

defines “foreign state” to include subdivisions and agencies or

instrumentalities of the state, id. § 1603, the Act describes

distinct routes to pierce the state’s immunity by reference to its

own conduct and that of its agencies or instrumentalities, id.

§ 1605. The first clause of the commercial-activity nexus

requirement addresses immunity of foreign states in terms of

the states’ own conduct, while the second clause addresses it in

terms of actions of foreign-state agencies or instrumentalities.

Id. § 1605(a)(3); see de Csepel II, 859 F.3d at 1107. Generally

speaking, each clause specifies a requisite connection between

the defendant and both (i) “the expropriated property or

proceeds thereof” and (ii) “some kind of commercial activity

in the United States.” Simon I, 812 F.3d at 146. For ease of

reference, we use “property element” and “commercial-

activity element,” respectively, to refer to these two

components of the commercial-activity nexus requirement.

57

The district court held that the Simon plaintiffs’ suit meets

the relevant property and commercial-activity requirements as

to Hungary and MÁV. See Simon-2020, 443 F. Supp. 3d at

116. It concluded that the Simon plaintiffs adequately alleged

that both Hungary and MÁV continue to possess property

obtained in exchange for the plaintiffs’ expropriated property,

and that both engage in the requisite commercial activities in

the United States. Id. 1

The Hungarian defendants ask us to reverse that decision.

We instead remand to the district court for factfinding as to two

points relevant to the commercial-activity nexus requirement:

first, whether the property at issue in the claims against both

Hungary and MÁV derived from the Simon plaintiffs’

expropriated property and, second, whether MÁV engages in

commercial activity in the United States. As to those

components of the commercial-activity requirement, the

district court, proceeding in the wake of jurisdictional

discovery, did not sufficiently respond to the Hungarian

defendants’ factual challenges to the court’s jurisdiction. First,

on the property element, the district court failed to “go beyond

the pleadings and resolve [the] disputed issues of fact.”

Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36,

40 (D.C. Cir. 2000). Second, on MÁV’s commercial activity

in the United States, the district court erroneously relied on the

pleading-stage ruling on the point in Simon I as law of the case,

so did not make the findings of fact called for in response to

the defendants’ factual challenge. Finally, as for Hungary’s

1

In Heller, the district court did not reach this issue because it

concluded that the “the domestic takings rule alone suffice[d] to

grant the [Hungarian defendants’] motion [to dismiss].” Heller,

2022 WL 2802351, at *9. Given that we affirm the district court’s

dismissal of the Heller plaintiffs’ claims on domestic takings rule

grounds, we do not address whether the Heller plaintiffs’ claims

satisfy the commercial-activity nexus requirement.

58

commercial activity, we affirm the district court’s

conclusion—based on stipulated facts—that Hungary engaged

in the requisite commercial activity through its issuance of

bonds in the United States. We address each of these three

components in turn.

A.

The district court did not make findings of fact regarding

the disputed property and the defendants’ commercial activity

in the United States, as required in response to the Hungarian

defendants’ factual challenges to the applicability of the

FSIA’s expropriation exception. The district court’s task in

assessing jurisdiction under the FSIA varies depending on

whether the defendant presents a legal or a factual challenge.

See Phoenix Consulting, 216 F.3d at 40. “If the defendant

challenges only the legal sufficiency of the plaintiff’s

jurisdictional allegations, then the district court should take the

plaintiff’s factual allegations as true and determine whether

they bring the case within any of the exceptions to immunity

invoked by the plaintiff,” id., drawing “all reasonable

inferences in [the plaintiff’s] favor,” Schubarth, 891 F.3d at

401. The Rule 12(b)(1) standard in this context “is similar to

that of Rule 12(b)(6), under which dismissal is warranted if no

plausible inferences can be drawn from the facts alleged that,

if proven, would provide grounds for relief.” Valambhia, 964

F.3d at 1139 (quoting Schubarth, 891 F.3d at 398).

By contrast, when a defendant moves beyond assuming

the truth of well-pleaded facts and seeks at the jurisdictional

threshold to challenge the factual basis of the court’s

jurisdiction—for instance, by factually disputing the Simon

plaintiffs’ jurisdictional allegations—“the court must go

beyond the pleadings and resolve any disputed issues of fact

the resolution of which is necessary” to resolve the Rule

59

12(b)(1) motion. Phoenix Consulting, 216 F.3d at 40. Put

simply, if a decision about the existence of jurisdiction under

the FSIA “requires resolution of factual disputes, the court will

have to resolve those disputes.” Helmerich, 581 U.S. at 187.

In so doing, “[t]he district court retains ‘considerable latitude

in devising the procedures it will follow to ferret out the facts

pertinent to jurisdiction,’ but it must give the plaintiff ‘ample

opportunity to secure and present evidence relevant to the

existence of jurisdiction.’” Phoenix Consulting, 216 F.3d at 40

(quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179-80 (D.C.

Cir. 1984)).

“Regardless of the procedures the court follows, however,

the sovereign ‘defendant bears the burden of proving that the

plaintiff’s allegations do not bring its case within a statutory

exception to immunity.’” Price, 389 F.3d at 197 (quoting

Phoenix Consulting, 216 F.3d at 40); accord de Csepel v.

Republic of Hungary, 27 F.4th 736, 743 (D.C. Cir. 2022). That

is because sovereign immunity is an “affirmative defense.”

EIG Energy, 894 F.3d at 345. Accordingly, the “burden of

proof in establishing the inapplicability of [the FSIA’s]

exceptions is upon the party claiming immunity.” Transam.

S.S. Corp. v. Somali Democratic Republic, 767 F.2d 998, 1002

(D.C. Cir. 1985) (citing H.R. Rep. No. 94-1487, at 6-7 (1976),

reprinted in 1976 U.S.C.C.A.N. 6604); see H.R. Rep. No. 94-

1487, at 17 (1976), reprinted in 1976 U.S.C.C.A.N. at 6616.

Here, the Hungarian defendants raised a factual challenge

to the Survivors’ allegations regarding the property element.

Although their motion-to-dismiss briefing principally argued

that the Simon plaintiffs’ pleadings had failed to satisfy the

“heightened pleading standard” that they claimed Helmerich

established, Hungary Mot. to Dismiss 22; see id. at 22-24; see

also Part III.B, supra, they also filed fact declarations as

attachments to their motion to dismiss, see Hungary Mot. to

60

Dismiss, Exs. 1-6; Dkt. Sheet 29 (J.A. 29). The Hungarian

defendants relied on those declarations to factually question the

Simon plaintiffs’ allegations that property exchanged for their

confiscated property is present in the United States in

connection with Hungary’s commercial activity or possessed

by MÁV. See Hungary Mot. to Dismiss 23; Dkt. Sheet 29 (J.A.

29). Those declarations drew on Hungarian state archival

records related to the Holocaust to conclude that it is

impossible to trace the current location of the property Hungary

allegedly seized or the proceeds thereof. See Botos Decl. ¶ 4

(J.A. 823); Csösz Decl. ¶ 5 (J.A. 834); Kovács Decl. ¶ 4 (J.A.

842).

The Simon Survivors countered by citing evidence in the

record that “Hungary nationalized the expropriated property,

sold it, and mixed the proceeds with the general state funds,

which are used to fund various governmental commercial

operations.” Survivors’ Br. 62 n.33; see id. at 62-63. They

identified three sources of record support for those facts. First,

they cited a declaration of a Hungarian attorney that describes,

and attaches as an accompanying exhibit, a 1993 decision of

the Hungarian Constitutional Court that includes the court’s

findings regarding Hungary’s expropriation and use of

property confiscated from Jews during the Holocaust. See id.

at 62-63; Second Hanák Decl. ¶ 44 (J.A. 359); Second Hanák

Decl., Ex. 8 (J.A. 414-40). The Simon plaintiffs’ second

declaration attaches and describes microfilm archives at the

Holocaust Museum in Washington, D.C., that show “records

of the confiscation, processing, and distribution of Jewish

property in Hungary 1944.” Fax Decl. ¶¶ 7-8 (J.A. 452); Fax

Decl., Ex. 15 (see J.A. 750-61); Fax Decl., Ex. 16 (J.A. 762-

71). Third, they submitted a study co-authored by one of the

Hungarian defendants’ declarants, Dr. László Csösz, which,

inter alia, identifies a Hungarian “Ministry of Finance’s

account” where proceeds from the liquidation of Jewish assets

61

were deposited. Fax Decl., Ex. 17, at 23 (J.A. 794); see id. at

1-2 (J.A. 772-73). The Simon Survivors also submitted

evidence of the presence of Hungarian funds used in

connection with Hungary’s commercial activity in the United

States, as further discussed below.

In this posture, resolving the Hungarian defendants’

motion to dismiss required resolving the “dispute over the

factual basis of the court’s subject matter jurisdiction under the

FSIA.” Phoenix Consulting, 216 F.3d at 40. The district court

was, accordingly, required to “go beyond the pleadings” and

make findings of fact germane to the expropriation exception’s

property element—namely, whether property defendants

received in exchange for the Simon plaintiffs’ confiscated

property is present in the United States in connection with

Hungary’s commercial activity there or is possessed by MÁV.

Id.; see also Helmerich, 581 U.S. at 187.

The district court did not do so here: It examined a mix of

factual allegations and evidence submitted by the parties but

does not appear to have undertaken the requisite factfinding to

support its jurisdiction. See Simon-2020, 443 F. Supp. 3d at

103-05. The district court continued to view the central

question as whether the Simon plaintiffs’ “allegations suffice

to raise a plausible inference that the defendants retain some

portion of the expropriated property.” Id. at 104 (emphasis

added). It characterized the evidence submitted by the Simon

plaintiffs as “bolster[ing] the plausibility of [those]

allegations,” and framed its conclusion as one that the

“allegations suffice” to establish jurisdiction under the FSIA.

Id. at 104, 116. Rather than find that the defendants had (or

had not) established by a preponderance of the evidence that

their property does not derive from the challenged

expropriations, see Simon I, 812 F.3d at 147, the district court

referred to the Simon plaintiffs’ allegations rather than

62

evidence, concluding that the defendants’ “declarations do not

affirmatively disprove the plausible inference drawn from the

plaintiffs’ complaint,” Simon-2020, 443 F. Supp. 3d at 105.

Remand is therefore warranted to enable the district court to

make the necessary factual findings. See, e.g., Phoenix

Consulting, 216 F.3d at 38, 41-40; see also Helmerich, 581

U.S. at 187.

The Hungarian defendants advance two primary

counterarguments in support of their request for reversal,

neither of which carries the day. They first argue that the

district court erred by applying a legal standard that Helmerich

displaced. See Hungary Br. 37. As discussed in Part III.B,

supra, the defendants misread Helmerich. Next, the Hungarian

defendants contend that, in any event, they are entitled to

reversal because the Simon plaintiffs failed to “produce

evidence tracing property in the United States or possessed by

MÁV to property expropriated from them during World War

II.” Id. at 44. That argument fails at the gate: The plaintiffs

had no such burden here.

The FSIA’s expropriation exception requires that the

property at issue, “or any property exchanged for such

property,” be present in the United States in connection with

the foreign state’s commercial activity, or “owned or operated

by an agency or instrumentality of the foreign state” that

engages in commercial activity in the United States. 28 U.S.C.

§ 1605(a)(3) (emphasis added). Congress knew that an

expropriating foreign state or instrumentality thereof might

“exchange[]” or liquidate the stolen property—i.e. convert it to

cash or cash equivalents. Id. It included language in the FSIA

to enable plaintiffs to satisfy the expropriation exception’s

jurisdictional nexus requirements in those circumstances. Id.

63

Requiring plaintiffs whose property was liquidated to

allege and prove that they have traced funds in the foreign

state’s or instrumentality’s possession to proceeds of the sale

of their property would render the FSIA’s expropriation

exception a nullity for virtually all claims involving

liquidation. Given the fungibility of money, once a foreign

sovereign sells stolen property and mixes the proceeds with

other funds in its possession, those proceeds ordinarily become

untraceable to any specific future property or transaction. The

Hungarian defendants’ proposed rule could thus thwart most

claims under the expropriation exception: A foreign sovereign

would need only commingle the proceeds from illegally taken

property with general accounts to insulate itself from suit under

the expropriation exception. We decline to ascribe to Congress

an intent to create a safe harbor for foreign sovereigns who

choose to commingle rather than segregate or separately

account for the proceeds from unlawful takings.

We came to a similar conclusion in Kilburn v. Socialist

People’s Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir.

2004), with respect to tracing foreign-state funds for purposes

of material support under the FSIA’s terrorism exception. See

id. at 1130-33; 28 U.S.C. § 1605(a)(7) (2002). 2 That exception

requires a link between a foreign state’s material support and

the act of terrorism that harmed the plaintiff. 28 U.S.C.

§ 1605(a)(7) (2002); see Kilburn, 376 F.3d at 1130. The

defendants argued that, for the exception to apply, the plaintiff

2

In 2008, after our decision in Kilburn, Congress relocated the

terrorism exception from 28 U.S.C. § 1605(a)(7) to 28 U.S.C.

§ 1605A, “but the relevant language remains substantially identical

to that considered in Kilburn.” EIG Energy, 894 F.3d at 346 n.4

(citing National Defense Authorization Act for Fiscal Year 2008,

Pub. L. 110-181 § 1083(a), (b)(1)(A)(iii), 122 Stat. 3, 338-41). In

the interest of consistency with Kilburn’s references, we quote and

cite the version included in the 2002 edition of the U.S. Code.

64

must allege and ultimately prove that a state’s “material

support” is “directly traceable to the particular terrorist act”

that gives rise to the underlying claim. See Kilburn, 376 F.3d

at 1130 (emphasis omitted). We rejected that argument.

Because money is “fungible, and terrorist organizations can

hardly be counted on to keep careful bookkeeping records,” we

explained, “[i]mposing a jurisdictional requirement that a state

sponsor’s financial assistance to a terrorist organization must

be directly traceable to a particular terrorist act, would likely

render § 1605(a)(7)’s material support provision ineffectual.”

Id. With regard to “property taken in violation of international

law,” 28 U.S.C. § 1605(a)(3), relying on foreign sovereigns

and their agencies to segregate resulting proceeds and “keep

careful bookkeeping records” poses similar hazards, Kilburn,

376 F.3d at 1130.

We hold that the Simon plaintiffs need not produce

evidence directly tracing the liquidated proceeds of their stolen

property to funds retained by the defendants in order to survive

the defendants’ factual challenge to the court’s jurisdiction

under the FSIA’s expropriation exception. Rather, because

“the sovereign ‘defendant bears the burden of proving that the

plaintiff’s allegations do not bring its case within a statutory

exception to immunity,’” Price, 389 F.3d at 197 (quoting

Phoenix Consulting, 216 F.3d at 40); accord EIG Energy, 894

F.3d at 344-45, defendants who wish to disclaim property they

seized and liquidated must at least affirmatively establish by a

preponderance of the evidence that their current resources do

not trace back to the property originally expropriated. In

keeping with the parties’ respective burdens, evidence that

“merely confirm[s] the difficulty of tracing individual paths of

exchange,” will—as the district court observed—“hurt[] rather

than help[] the defendants” in that endeavor. Simon-2020, 443

F. Supp. 3d at 105.

65

It is the province of the district court to find facts,

including the requisite jurisdictional facts regarding the

property element. The district court has wide “latitude [to]

devis[e] the procedures” necessary “to ferret out the facts

pertinent to jurisdiction,” Phoenix Consulting, 216 F.3d at 40

(quoting Prakash, 727 F.2d at 1179), should it determine that

any additional jurisdictional discovery or evidentiary

submissions would be appropriate. We therefore remand to the

district court to make the factual findings necessary to a

determination whether the property component of the

commercial-activity nexus requirement is satisfied as to

Hungary and MÁV.

B.

Next, we turn to the question whether MÁV engages in

commercial activity in the United States. Here, too, we

conclude the district court failed appropriately to respond to the

Hungarian defendants’ factual challenge by making findings of

fact. Instead, the district court relied on law-of-the-case

doctrine to treat Simon I’s pleading-stage ruling on the point as

dispositive. See Simon-2020, 443 F. Supp. 3d at 111-12, 116.

Law-of-the-case doctrine applies only where a prior ruling

in the case resolved the same question that a party asks the

court to revisit. See Wye Oak Tech., Inc. v. Republic of Iraq,

24 F.4th 686, 698 (D.C. Cir. 2022); Kimberlin v. Quinlan, 199

F.3d 496, 500 (D.C. Cir. 1999). When the prior ruling occurred

at a “distinct procedural” stage of the case, it may not provide

the type of resolution required at a later stage. Wye Oak, 24

F.4th at 698. We deemed law-of-the-case doctrine inapplicable

in Wye Oak, for instance, because the prior ruling at issue

assessed only “the legal sufficiency of [the] complaint for the

purpose of proceeding to discovery,” and we were then

reviewing a post-trial judgment made on the basis of “a

66

developed factual record” following a “full adversarial

hearing.” Id. at 697-98.

Given those principles, the district court erred by deeming

dispositive Simon I’s ruling on MÁV’s commercial activity. In

Simon I, we determined that the plaintiffs had adequately

pleaded MÁV’s commercial activity. See 812 F.3d at 147-48.

We accordingly reversed the district court’s grant of the

Hungarian defendants’ motion to dismiss. In so doing, we

noted that questions of proof would await “any factual

challenge by the Hungarian defendants.” Id. at 147, 151.

The Hungarian defendants then raised a factual challenge

with respect to MÁV’s commercial activity. See Hungary Mot.

to Dismiss 9-11; Dkt. Sheet 29 (J.A. 29); Simon-2020, 443 F.

Supp. 3d at 112-14. They factually contested the Simon

plaintiffs’ allegations that MÁV-START, another Hungarian

entity, is an agent of MÁV, and argued that MÁV cannot be

subjected to the jurisdiction of a U.S. court based on the

activities of MÁV-START. Hungary Mot. to Dismiss 9-11.

The district court granted the parties’ request for limited

jurisdictional discovery “concerning the averments in the

declarations [filed] in support of” the Hungarian defendants’

motion to dismiss. Dkt. Sheet 29 (J.A. 29) (internal quotation

marks omitted). And the Simon plaintiffs thereafter filed a

declaration and accompanying exhibits regarding MÁV’s

relationship with MÁV-START in support of their opposition

to the defendants’ motion to dismiss. See Dkt. Sheet 31 (J.A.

31); Schopler Decl. ¶¶ 3-18 (J.A. 1632-34); Schopler Decl.,

Exs. 11-17 (J.A. 1678-99). This factual challenge regarding

the existence of a principal-agent relationship between MÁV

and MÁV-START obligated the district court to go beyond the

pleadings to resolve that dispute. See Phoenix Consulting, 216

F.3d at 40.

67

In taking up the factual challenge, however, the district

court began its analysis by stating that it was “bound by the law

of the case,” and by what it described as the Simon I court’s

“finding about MÁV’s commercial nexus to the United

States.” Simon-2020, 443 F. Supp. 3d at 111; see also id. at

111-12 (reasoning that the defendants’ factual challenge to

MÁV’s commercial-activity nexus would succeed “only if one

of the limited exceptions to the law of the case doctrine is

met”). Even as the court went on to discuss the factual record

developed by the parties following Simon I, it expressly

invoked law of the case and grounded its conclusion regarding

MÁV’s commercial activity in what it described as this court’s

“prior finding” of MÁV’s commercial activity in the United

States. See id. at 116.

We do not suggest that the district court was wrong to

draw on the legal ruling in Simon I, but only that doing so was

insufficient once defendants pressed their factual challenge.

We are in no position to discern whether the district court

would have reached the conclusion about MÁV’s commercial

activity that it announced had it expressly made factual

findings on the point. Accordingly, we remand for the district

court to determine as a factual matter based on the evidence

whether MÁV engages in commercial activity in the United

States.

C.

That leaves the Hungarian defendants’ challenge

regarding Hungary’s commercial activity in the United States.

We note, at the outset, that the procedural history on this issue

differs from that of the previous two points in one respect:

Whereas we deemed other allegations sufficient in Simon I, we

held that the First Amended Complaint’s “allegations about

Hungary’s commercial activity fail[ed] to demonstrate

68

satisfaction of § 1605(a)(3)’s nexus requirement.” 812 F.3d at

148. As we explained, “the plaintiffs put forward only the bare,

conclusory assertion that ‘property is present in the United

States in connection with commercial activity carried on by

Hungary within the United States.’ There is nothing more.”

Id. (quoting Simon First Am. Compl. ¶ 83 (J.A. 119)). We

“express[ed] no view,” however, “on whether [the plaintiffs

could] (or should be allowed to) amend the complaint in this

regard.” Id.

On remand, the district court permitted the Simon

plaintiffs to amend. See Dkt. Sheet 25 (J.A. 25). The Simon

plaintiffs did so, see id. at 26 (J.A. 26), and added, inter alia,

allegations regarding Hungary’s issuance of bonds and military

purchases in the United States, see Simon SAC ¶¶ 98-101 (J.A.

260-62). The Hungarian defendants then renewed their motion

to dismiss, again arguing, inter alia, that the Simon plaintiffs

had failed as a legal matter to satisfy the commercial-activity

element as to Hungary. See Dkt. Sheet 29 (J.A. 29); Simon-

2020, 443 F. Supp. 3d at 106-11. Following jurisdictional

discovery, see Dkt. Sheet 29 (J.A. 29), the parties submitted a

Joint Stipulation of Facts relevant to Hungary’s commercial

activity in the United States, see Joint Stip. (J.A. 1155-70).

Relying principally on the facts set forth in the Joint

Stipulation, the district court concluded Hungary engaged in

the commercial activity required for purposes of the

expropriation exception. See Simon-2020, 443 F. Supp. 3d at

106-11. In particular, the court held that “Hungary’s bond

offerings and military equipment purchases are sufficient to

meet the commercial activity prong.” Id. at 107.

On appeal, the Hungarian defendants argue that the district

court erred in its analysis of both the bond offerings and

military equipment purchases. They argue that the district

court erroneously accepted Hungary’s issuance of bonds and

69

military equipment purchases as satisfying the commercial-

activity component of the expropriation exception. In their

view, the district court misstated the central question under the

commercial-activity inquiry in analyzing Hungary’s issuance

of bonds and erred in concluding that a state’s participation in

the U.S. Foreign Military Sales Program could qualify as

commercial activity under the FSIA.

We affirm the district court’s conclusion that the

commercial-activity prong is met based on Hungary’s issuance

of bonds. Because that is sufficient to resolve the appeal with

respect to Hungary’s commercial activity, we do not consider

Hungary’s military equipment purchases. The commercial-

activity nexus requirement, as it relates to foreign states,

requires that the expropriated “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.” 28 U.S.C. § 1605(a)(3). The FSIA

defines commercial activity as “either a regular course of

commercial conduct or a particular commercial transaction or

act.” Id. § 1603(d). The Act further specifies that the purpose

of an activity does not determine its commercial character.

Rather, courts should look to “the nature of the course of

conduct or particular transaction or act.” Id.

In Republic of Argentina v. Weltover, Inc., 504 U.S. 607

(1992), the Court interpreted the term “commercial” in the

FSIA’s commercial activity exception. See id. at 612-14. It

held that a foreign state’s actions are “commercial” under the

FSIA when the state “acts, not as regulator of a market, but in

the manner of a private player within it.” Id. at 614. Applying

that standard, the Court held that Argentina’s issuance of

government bonds was a “commercial activity” under the

FSIA. Id. at 617. As the Court explained, the bonds at issue

were “in almost all respects garden-variety debt instruments”;

70

private parties could hold them, trade them on the international

market, and use them to secure a future stream of income. Id.

at 615. Because “private parties regularly issue [such] bonds,”

Argentina’s issuance constituted commercial activity for

purposes of the FSIA. Id. at 616.

Application of Weltover to the relevant facts as stipulated

by the parties establishes that Hungary’s issuance of bonds in

this case qualifies as “commercial activity” within the meaning

of the FSIA. Two Hungarian bond issuances are illustrative.

See Simon-2020, 443 F. Supp. 3d at 107-08. First, in 2005,

Hungary filed a prospectus supplement with the United States

Securities and Exchange Commission (SEC) offering $1.5

billion in notes for sale globally, of which approximately $582

million was “directly sold in the United States,” with an

additional $92 million “estimated to flow back into the United

States from sales outside the United States.” Joint Stip. ¶ 21

(J.A. 1158). “The notes issued under the 2005 Prospectus

constituted direct, unconditional, unsecured and general

obligations of Hungary,” id. ¶ 25 (J.A. 1159), and the “[d]ebt

securities issued under the 2005 Prospectus were outstanding

in the United States throughout 2009, 2010, and 2011,” id. ¶ 27

(J.A. 1159)—i.e., both before and after the Simon plaintiffs

filed their complaint. Second, in 2010, Hungary filed another

prospectus supplement with the SEC. Id. ¶¶ 47-48, 51 (J.A.

1161-62). “The debt securities issued under the 2010

Prospectus” were notes due in January 2020, “bearing interest

at the rate of 6.250% per year,” accruing from January 2010,

and “payable on July 29 and January 29 of each year, beginning

on July 29, 2010.” Id. ¶ 52 (J.A. 1162). In short, these two sets

of bonds are materially indistinguishable from those at issue in

Weltover: “They may be held by private parties; they are

negotiable and may be traded on the international market . . . ;

and they promise a future stream of cash income.” 504 U.S. at

71

615. Hungary’s issuance of these bonds constitutes

commercial activity within the meaning of the FSIA.

The Hungarian defendants dispute none of this. See

Hungary Br. 52-53. Instead, they contend that Hungary’s

issuance of the bonds, although commercial in nature, is not

germane to the commercial-activity nexus required here. See

id. The real issue, they argue, is “who engaged in ‘commercial

activity in the United States’ in connection with property

exchanged for expropriated property.” Id. at 53 (quoting 28

U.S.C. § 1605(a)(3)). According to the Hungarian defendants,

“[t]he bonds themselves are not property exchanged for

property expropriated from [p]laintiffs.” Id. Rather, “[t]he

only conceivably relevant property in the United States would

be interest paid on the bonds to U.S. holders, and the relevant

commercial activity in the United States would be the payment

of that interest.” Id. Because a separate entity, ÁKK Zrt.

(ÁKK), made those interest payments, defendants argue, it is

ÁKK that was engaged in the relevant commercial activity, if

any. See id.; see also Joint Stip. ¶¶ 28, 55, 73-77 (J.A. 1159,

1162, 1165-66).

That argument misunderstands the link required between

the relevant property and the foreign state’s commercial

activity in the United States. As noted, the expropriation

exception requires that the confiscated “property or any

property exchanged for such property [must be] 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). If money derived from the proceeds of

liquidating the Simon plaintiffs’ stolen property is present in

the United States as a result of Hungary’s commercial activity

in the United States (here, its issuance of bonds), the fact that

another entity acting for Hungary is using those funds to make

the interest payments for the bonds does not negate the fact that

72

the funds are “present in the United States in connection with

a commercial activity carried on in the United States by”

Hungary. Id.

Moreover, to the extent the Hungarian defendants suggest

that Hungary’s issuance of bonds occurred “outside the United

States,” Hungary Br. 52, any such argument is foreclosed by

the record. The parties’ Joint Stipulation of Facts explicitly

states, “Hungary issued debt securities in the United States

under the 2010 Prospectus.” Joint Stip. ¶ 51 (J.A. 1162).

Additionally, as the district court explained in detail, SEC

filings produced by the Simon plaintiffs and uncontested by the

Hungarian defendants identify Hungary as the issuer of (and

entity responsible for) the debt securities offered in the United

States. See Simon-2020, 443 F. Supp. 3d at 108; see also, e.g.,

Fax Decl., Ex. 7, at 54 (J.A. 618) (SEC filing listing the

“Republic of Hungary” as the “Issuer” of the 2010 bonds, and

noting the securities being offered “constitute direct,

unconditional, general and unsecured obligations of the

Republic”); id. at 5 (J.A. 569) (SEC filing describing the 2010

bonds as “debt securities of the Republic, which are being

offered globally for sale in the United States and elsewhere

where such offer and sale is permitted”).

The Hungarian defendants’ challenge to the district court’s

ruling on Hungary’s commercial activity is thus unavailing.

We affirm the district court’s ruling that the commercial-

activity element is satisfied as to Hungary.

VII.

For the foregoing reasons, we affirm the district court’s

dismissal of the Trianon Survivors’ claims in its 2021 decision

in Simon and 2022 decision in Heller. We likewise affirm the

district court’s 2021 disposition of the Hungarian defendants’

motion to dismiss the remaining plaintiffs’ claims, with the

73

exception of the Lebovics sisters, Zelikovitch, and Schlanger,

whose claims we direct the district court to dismiss without

prejudice. As for the district court’s 2020 Simon decision on

the commercial-activity nexus requirement, we affirm the

district court’s ruling as to Hungary’s commercial activity.

However, we vacate the court’s ruling on the property

component of the nexus in relation to both Hungary and MÁV,

as well as on MÁV’s commercial activity. We remand for the

district court to make factual determinations on those points, as

necessary to resolve the Hungarian defendants’ challenge to

the remaining plaintiffs’ invocation of the expropriation

exception.

We pause, at this juncture, to acknowledge the immense

gravity of the claims at issue in this case and others like it. The

atrocities committed by the Hungarian government during the

Holocaust are unspeakable. And there is no denying that the

survivors of Hungary’s genocidal campaign deserve justice.

The role of the courts of the United States in these cases

depends on the factual record before it. Our legal authority is

granted and limited by Congress. We are also checked by the

reality that even the best remedies a court can provide for past

harms are, by their nature, profoundly inadequate. That reality,

always there in the background, is starkly evident in cases like

these.

So ordered.

RANDOLPH, Senior Circuit Judge, concurring in part and

dissenting in part: A basic judicial principle is that like cases

must be treated alike. LaShawn A. v. Barry, 87 F.3d 1389, 1393

(D.C. Cir. 1996) (en banc). My dissent is confined to the

majority’s compliance with that principle in its otherwise

admirable opinion. That is, I cannot agree that four of the

fourteen original Simon plaintiffs may continue with their action,

given the Supreme Court’s unanimous decision in Federal

Republic of Germany v. Philipp (Philipp III), 141 S. Ct. 703

(2021), and our decision on remand in Philipp v. Stiftung

Preussischer Kulturbesitz (Philipp VI), No. 22-7126, – F.4th –,

2023 WL 4536152 (D.C. Cir. July 14, 2023) (per curiam).

The Philipp case, involving the Nazis taking the property of

Jews in Germany, and Simon, involving the taking of property of

Jews in Hungary, raised comparable issues under the Foreign

Sovereign Immunities Act. Our court naturally treated a

decision in one as impacting the other. See, e.g., Simon v.

Republic of Hungary (Simon II), 911 F.3d 1172, 1176 (D.C. Cir.

2018) (citing Philipp v. Federal Republic of Germany (Philipp

II), 894 F.3d 406 (D.C. Cir. 2018)). The Supreme Court did the

same. The Court granted writs of certiorari in Philipp and Simon

at the same time. See 141 S. Ct. 185 (July 2, 2020) (Philipp);

141 S. Ct. 187 (July 2, 2020) (Simon). And, as I next discuss,

when the Court released its judgments in these two cases, it tied

the cases together.

In Philipp III, the Supreme Court – disagreeing with our

court – held unanimously that foreign states and their agencies

are immune from suits in United States courts based on “a

foreign sovereign’s taking of its own nationals’ property.” Id. at

709–10. In rendering its opinion, the Court treated the plaintiffs

in Philipp as German nationals when the Nazis confiscated their

property. See id. The Court did so even though the Philipp

plaintiffs, apparently anticipating an adverse decision, suggested

to the Court (for the first time in the litigation) that they or their

2

ancestors might not have been German nationals on the relevant

date. See Philipp VI, 2023 WL 4536152, at *1. In response to

this belated claim, the Supreme Court not only vacated our

judgment in Philipp but also remanded the case for a

determination whether the Philipp plaintiffs had preserved their

new contention that they were not German nationals at the time

of the alleged takings. Philipp III, 141 S. Ct. at 715–16.

On the same day, the Supreme Court issued the following

per curiam order in this, the Simon case: “The judgment of the

United States Court of Appeals for the D. C. Circuit is vacated,

and the case is remanded for further proceedings consistent with

the decision in [Philipp III].” Republic of Hungary v. Simon

(Simon III), 141 S. Ct. 691 (2021). The Court’s mandate thus

required, on remand, a decision whether the Simon plaintiffs, or

any one of them, had preserved a claim that they were not

Hungarian nationals when Hungary confiscated their property.

In light of the mandate, the preservation question had to be

determined because subject matter jurisdiction turned on it, at

least as a preliminary matter.1 See Arbaugh v. Y&H Corp., 546

U.S. 500, 514 (2006); Capron v. Van Noorden, 6 U.S. 126, 127

(1804) (“Here it was the duty of the Court to see that they had

jurisdiction, for the consent of parties could not give it.”).

In the appeal in the remanded Philipp case, we determined

– in agreement with the district court – that the plaintiffs had

failed to preserve a not-German-nationals claim. Philipp VI,

2023 WL 4536152, at *2. The Simon case, also on appeal after

remand, presents an even stronger ground for reaching the same

1

The plaintiffs’ burden to establish jurisdiction increases at

later stages in litigation. See Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992).

3

result with respect to the plaintiffs’ disclaimer of Hungarian

nationality.2

As in Philipp, none of the plaintiffs in Simon alleged in their

original complaint or in either of their amended complaints that

they were nationals of a country other than Hungary at the time

of the takings. See Simon v. Republic of Hungary, 579 F. Supp.

3d 91, 124 (D.D.C. 2021), appeal dismissed, 2022 WL 7205036

(D.C. Cir. Oct. 12, 2022). The majority attempts to fill this gap

by quoting a sentence from one of the plaintiffs’ district court

memoranda from twelve years ago. Maj. Op. 30. There are two

problems with the attempt. An obvious one is that the quotation

does not alter the fact that the plaintiffs’ pleadings – their

complaint and amended complaints – never alleged that they

were Czechoslovakian nationals at the time of the alleged

takings. The second is that the plaintiffs were arguing the

opposite of what the majority thinks. That is, in the quoted

passage the plaintiffs were disputing the claim of the Hungarian

state at the start of World War II that they were no longer

“citizens” of Hungary despite the fact – as plaintiffs stated in

their preceding sentence – that the “14 Named Plaintiffs are

Holocaust survivors who lived in the Hungarian State at the

threshold of World War II.” Pls.’ Opp’n 3, 17, Simon v.

Republic of Hungary, No. 1:10-cv-01770-BAH (D.D.C. May 6,

2011), ECF No. 24.

2

The majority tries to distinguish Philipp. See Maj. Op.

29–30. But as the majority suggests, the Philipp plaintiffs did plead

facts that could meet the “minimum requirements” for a non-German

nationality. See Maj. Op. 30; Second Amended Complaint at ¶¶ 55,

170, Philipp v. Stiftung Preussischer Kulturbesitz No.

1:15-cv-00266-CKK (D.D.C. September 9, 2021), ECF No. 62. And

the Philipp plaintiffs did press their non-German-nationality argument

before the Supreme Court (unlike the plaintiffs here). See Philipp VI,

2023 WL 4536152, at *1.

4

As in Philipp, the Simon plaintiffs had “every opportunity”

– and indeed, every incentive – to allege in their original

complaint or in their amended complaints that they were

Czechoslovakian nationals.3 Philipp VI, 2023 WL 4536152, at

*2. But unlike the plaintiffs in Philipp, the Simon plaintiffs

never informed the Supreme Court that they even contemplated

asserting such an allegation. Instead, the Simon plaintiffs

represented to the Supreme Court in the clearest possible terms

that they were all Hungarian nationals when the takings

occurred: “All 14 of the Survivors were Hungarian nationals

during World War II but have adopted other nationalities since

escaping the atrocities of the Hungarian government.” Brief in

Opposition at 4–5, Simon III, 141 S. Ct. 691 (2021) (No. 18-

1447), 2019 WL 3380416 at *4–5. That too had been our

court’s understanding when the case reached us on appeal: “The

named plaintiffs in this case are fourteen Jewish survivors of the

Hungarian Holocaust. All fourteen were Hungarian nationals

during World War II but have since adopted other nationalities.”

3

The Simon plaintiffs devoted a portion of their Supreme

Court merits brief to the FSIA expropriation exception because

Hungary had “contested this question of subject matter jurisdiction

below” and “intend[ed] to reap the benefits if Germany prevail[ed]”

in the Philipp case. Brief for Respondents at 42 n.5, Simon III, 141 S.

Ct. 691 (2021) (No. 18-1447), 2020 WL 6292564 at *42 n.5; see also

Reply Brief for Appellants Rosalie Simon, et. al. at 9, Simon v.

Republic of Hungary (Simon I), 812 F.3d 127 (D.C. Cir. 2016) (No.

14-7082), 2014 WL 6603413 at *9 (“Hungary alleges that

international law is not implicated where the wrongful conduct is

perpetrated against a state’s own citizens or nationals.”); Opposition

Brief of Defendants-Appellees at 32, Simon I, 812 F.3d 127 (D.C. Cir.

2016) (No. 14-7082), 2014 WL 5795145 at *32 (no violation of

international law because “Plaintiffs were Hungarian nationals at the

time of the events in question”).

5

Simon v. Republic of Hungary (Simon I), 812 F.3d 127, 134

(D.C. Cir. 2016).4

The short of the matter is that the Simon plaintiffs, like the

plaintiffs in Philipp, did not preserve a claim that they were

nationals of a country other than Hungary when the takings

occurred. The longstanding rule of this circuit, and of the other

circuits,5 is as follows: “It is elementary that where an argument

could have been raised on an initial appeal, it is inappropriate to

consider that argument on a second appeal following remand.”

Northwestern Indiana Tel. Co. v. F.C.C., 872 F.2d 465, 470

(D.C. Cir. 1989) (quoted in United States v. Henry, 472 F.3d

910, 913 (D.C. Cir. 2007)). As we held in Philipp, in order to

“preserve a claim, a party must raise it ‘squarely and distinctly.’”

Philipp, 2023 WL 4536152, at *2 (quoting Bronner on Behalf of

Am. Stud. Ass’n v. Duggan, 962 F.3d 596, 611 (D.C. Cir. 2020)).

The Simon plaintiffs did neither.

4

The plaintiffs argued that Article 27 of the 1947 Peace

Treaty applied to them because they were Hungarian nationals when

Hungary took their property. See Reply Brief for Appellants Rosalie

Simon, et. al. at 3, Simon I, 812 F.3d 127 (D.C. Cir. 2016) (No.

14-7082), 2014 WL 6603413 at *3.

5

See, e.g., Omni Outdoor Advert., Inc. v. Columbia Outdoor

Advert., Inc., 974 F.2d 502, 505 (4th Cir. 1992); United States v.

Morris, 259 F.3d 894, 898 (7th Cir. 2001); Christian Legal Soc’y

Chapter of Univ. Of Cal. v. Wu, 626 F.3d 483, 486–88 (9th Cir. 2010).