# Rosalie Simon v. Republic of Hungary

> Court of Appeals for the D.C. Circuit · January 29, 2016 · 812 F.3d 127

URL: https://www.frixlaw.com/law-library/cases/9821355

## Case

- **Full name:** Rosalie SIMON, Et Al., Appellants v. REPUBLIC OF HUNGARY, Et Al., Appellees
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 29, 2016
- **Citations:** 812 F.3d 127; 421 U.S. App. D.C. 67; 2016 U.S. App. LEXIS 1438; 2016 WL 363365
- **Precedential status:** Published
- **Opinion:** Concurrence by Henderson
- **Judges:** Henderson, Srinivasan, Wilkins
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by statute, as recognized in Federal Republic of Germany v. Philipp.
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9821355

## How later opinions describe it (automated extraction)

- explaining that jurisdictional inquiry under FSIA “is similar to that of Rule 12(b)(6), under which [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”
- holding that the first clause applies to claims against the foreign state itself, whereas the second clause applies to claims against an agency or instrumentality of the foreign state
- stating Hungary’s “intent or ability to effectuate Article 27 of the 1947 Peace Treaty” “defies reality”

## Opinion text

KAREN LeCRAFT HENDERSON, Circuit Judge,
concurring:
While I join the Court’s opinion in full, I write separately to emphasize the baselessness of Hungary’s invocation of the Treaty Exception to the Foreign Sovereign Immunities Act (FSIA). 1 Implicit in Hungary’s argument is the premise that it made a good-faith promise to return (within six months’ time), or to provide compensation for, the unlawfully expropriated property belonging to the survivors of Hungary’s attempted extermination of over one-half million Jewish nationals in the last months of World War II. The signatories to the 1947'Peace Treaty further agreed that any property that remained unclaimed after six months would be given to Holocaust relief organizations. According to Hungary, as a result of those provisions, the 1947 Peace Treaty insulates Hungary from -the jurisdictional reach of the FSIA.
There is no suggestion that Hungary made any timely attempt to satisfy its obligations under the 1947 Peace Treaty. *152 Indeed, the Hungarian Constitutional Court recognized that even in 1993 Article 27’s requirements remained unfulfilled. And given the unprecedented chaos of post-World War II Europe, the commitment that property seized — and often liquidated — by the Nazis could be located and returned in six months’ time, or that fair compensation for the seized property could be paid within any reasonable time, was illusory. Although looking back seventy years may make it easy to assume that recovery from continent-wide, almost decade-long devastation progressed smoothly, nothing could be more inaccurate:
Imagine a world without institutions. It is a world where borders between countries seem to have dissolved, leaving a single, endless landscape over which people travel in search of communities that no longer exist. There are no governments any more, on either a national scale or even a local one.... No one has seen a newspaper for weeks. There are no railways or motor vehicles, no telephones or telegrams, no post office, no communication at all except what is passed through word of mouth.... Law and order are virtually non-existent, because there ,is no police force and no judiciary. In some areas there no longer seems to be any clear sense of what is right and what is wrong. People help themselves to whatever they want without regard to ownership — indeed, the sense of ownership itself has largely disappeared. Goods belong only to those who are strong enough to hold on to them, and those who are willing to guard them with their lives. Men with weapons roam the streets, taking what they want and threatening anyone who gets in their way----For modem generations it is difficult to picture such a world.... However, there are still hundreds of thousands of people alive today who experienced exactly these conditions — not in far-flung corners of the globe, but at the heart of what has for decades been considered one of the most stable and developed regions on earth. In 1944 and 1945 large parts of Europe were left in chaos for months at a time. The Second World War — easily the most destructive war in history — had devastated not only the physical infrastructure, but also the institutions that held countries together. The political system had broken down to such a'degree that American observers were warning of the possibility of Europe-wide civil war. The deliberate fragmentation of communities had sown an irreversible mistrust between neighbours; and universal famine had made personal morality an irrelevance. “Europe”, claimed the New York Times in March 1945, “is in a condition which no American can hope to understand.” It was “The New Dark Continent”.
Keith Lowe, Savage Continent: Europe in the Aftermath of World War II xiii-xiv (St. Martin’s Press 2012). Well into the 1950s, Europe remained “economically, politically and morally unstable.” Id. at 69. Even the Allied nations — the only group “universally recognized as untainted by association with the Nazis” — were “completely unprepared to deal with the complicated and widespread challenges that faced them in the immediate aftermath of the war.” Id. at 69-70.
Hungary was no exception. First occupied by Germany in 1944 and then “liberated” by Stalin’s troops as the war drew to a close, Hungary’s “[ejstablished state institutions collapsed as their officials fled in the face of the Red Army’s advance, forcing the country’s new occupiers to construct a new state almost from scratch.” Mark Pittaway, The Politics of Legitimacy and Hungary’s Postwar Transition, in *153 Contemporary European History 458, 455 (Cambridge University Press 2004). Indeed, “[t]he last six months of the war left Hungary devastated,” resulting in the destruction of “40 percent of Hungary’s national wealth,” damage to 90 per cent of Hungary’s industrial plants and loss of 40 per cent of Hungary’s rail network and 70 per cent of Hungary’s railway vehicles. László Borhi, Hungary in the Cold War, 1945-1956: Between the United States and the Soviet Union 53-54 (Central European University Press 2004). The task of rebuilding Hungarian society fell to the Soviet Union, which, as the district court noted, had little interest in complying with the terms of a treaty that did not further the interest of the communist state. See Simon v. Republic of Hung., 37 F.Supp.3d 381, 391 (D.D.C.2014).
No group felt the effects of this upheaval more than the Jewish survivors of Hitler’s death camps, the majority of whom “believed it their duty to return to their countries of origin and try to rebuild their communities the best they could.” LOWE, supra at 191. Given the rampant anti-Semitism that plagued the former Nazi-occupied areas, “[t]he historiography of this period in Europe is littered with stories of Jews trying, and failing, to get back what , was rightfully theirs.” Id. at 198. “[T]he property of Jews was dispersed” far and wide “through a combination of confiscation, plunder, theft and resale.” Id. Indeed, “[i]n larger cities like Budapest,” this state of affairs “often rendered it impossible for returning Jews to trace their property.” Id. at 198-99. And even in smaller, rural towns'where property could be traced, the Hungarian ■ courts often “ruled that horses and other livestock plundered from Jewish farms should remain with those who had ‘saved’ them.” Id. at 200.
Much ink has been spilled on the general upheaval in post-World War II Europe 2 and the chaos that befell the Soviet-occupied nations in particular. 3 Against this backdrop, Hungary asks this Court to trust that it in fact intended to restore expropriated property to its rightful owners within six months, or to pay them fair compensation, in “all cases.” Treaty of Peace, U.S.-Hung., art. 27, Feb. 10, 1947, T.I.A.S. No. 1651 (emphasis added). In Hungary’s view, the 1947 Peace Treaty represents the exclusive means by which Hungarian Jewish victims of the Holocaust could obtain recovery for property seized from them. It revises history — and defies reality — to claim that Hungary had any intent or ability to effectuate Article 27 of the 1947 Peace Treaty. Accordingly, it would be unthinkable to conclude that the 1947 Peace Treaty fits within the FSIA’s Treaty Exception.
. Specifically, I agree with the Court's treatment of, and conclusions regarding, Articles 27 and 40 of the 1947 Peacé Treaty.
. See, e.g., Lowe, supra.
. See, e.g., Pittaway, supra; Borhi, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9821355. Public record. Not legal advice.