Amicus Curiae Brief — Federal Republic of Germany, et al., Petitioners v. Alan Philipp, et al.

No. 19-351 and No. 18-1447

IN THE

Supreme Court of the United States

_______________

FEDERAL REPUBLIC OF GERMANY, ET AL.,

Petitioners,

v.

ALAN PHILIPP, ET AL.,

_______________

Respondents.

REPUBLIC OF HUNGARY, ET AL.,

Petitioners,

v.

ROSALIE SIMON, ET AL.,

_______________

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

_______________

BRIEF FOR MEMBERS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

_______________

AKIVA SHAPIRO

Counsel of Record

GENEVIEVE B. QUINN

TIMOTHY SUN

GRACE E. HART

ANDREW C. BERNSTEIN

NICOLE SANTORA

GIBSON, DUNN &

CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

ashapiro@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................1

ARGUMENT ...............................................................3

I.

II.

The FSIA Replaced Ad Hoc Foreign

Sovereign Immunity Determinations

With A Comprehensive Framework To Be

Uniformly Applied By The Courts. ..................... 3

A.

Prior to Congress’s Enactment of the

FSIA, the Regime of Sovereign

Immunity Was in a State of

Disarray.………………………….………….. 3

B.

Congress Enacted the FSIA to

Provide an Objective Set of Legal

Standards Governing the Bounds of,

and Exceptions to, Foreign Sovereign

Immunity…………………………...………... 6

The FSIA’s Exception For Genocidal

Takings Is Consistent With Congress’s

Repeated Legislative Efforts To Provide

Redress For Victims Of The Holocaust. ............. 9

III. Congress Has Already Decided, As A

Matter Of Comity, To Except Sovereign

Immunity For Genocidal Takings, And

Courts Should Not Now Second-Guess

That Legislative Command. ............................. 15

ii

TABLE OF CONTENTS

(continued)

Page

A.

The FSIA Reflects Congress’s

Express Determinations Regarding

When Comity Should and Should

Not Result in Sovereign Immunity,

to Which Courts Should Defer……………15

B.

The Expropriation Exception

Remains Subject to Numerous

Constraints…………………………………. 20

CONCLUSION .......................................................... 23

APPENDIX

Appendix A:

Amici Curiae Members of the United States

House of Representatives …………………………1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abelesz v. Magyar Nemzeti Bank,

692 F.3d 661 (7th Cir. 2012) ................................ 10

Bank Markazi v. Peterson,

136 S.Ct. 1310 (2016) ........................................... 17

Bolivarian Republic of Venezuela v.

Helmerich & Payne Int’l Drilling Co.,

137 S. Ct. 1312 (2017) .................................... 14, 21

Burford v. Sun Oil Co.,

319 U.S. 315 (1943) .............................................. 20

Cohens v. Virginia,

6 Wheat. 264 (1821) ............................................. 16

Colorado River Water Conservation

Dist. v. United States,

424 U.S. 800 (1976) .......................................... 2, 15

de Csepel v. Republic of Hungary,

2020 WL 2343405

(D.D.C. May 11, 2020).......................................... 12

de Csepel v. Republic of Hungary,

859 F.3d 1094 (D.C. Cir. 2017) ............................ 21

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ............................................ 20

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) .......................................... 20

JP Morgan Chase Bank v. Altos Hornos

de Mexico, S.A. de C.V.,

412 F.3d 418 (2d Cir. 2005) ................................. 19

Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach,

523 U.S. 26 (1998) ............................................ 7, 16

Mims v. Arrow Fin. Servs., LLC,

565 U.S. 368 (2012) .............................................. 16

New Orleans Pub. Serv., Inc. v. Council

of City of New Orleans,

491 U.S. 350 (1989) .............................................. 16

Philipp v. Federal Republic of Germany,

248 F. Supp. 3d 59 (D.D.C. 2017) ........................ 12

Philipp v. Federal Republic of Germany,

894 F.3d 406 (D.C. Cir. 2018) .............................. 10

In re Picard, Tr. for Liquidation of

Bernard L. Madoff Inv. Sec. LLC,

917 F.3d 85 (2d Cir. 2019) ................................... 19

Pravin Banker Assocs., Ltd. v. Banco

Popular Del Peru,

109 F.3d 850 (2d Cir. 1997) ................................. 19

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) .............................................. 15

Republic of Argentina v. NML Capital,

Ltd.,

573 U.S. 134 (2014) ...................................... passim

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ................................................ 8

Republic of Austria v. Altmann,

541 U.S. 677 (2004) ...................................... passim

Rubin v. Islamic Republic of Iran,

138 S. Ct. 816 (2018) ............................................ 18

Rukoro v. Federal Republic of Germany,

2020 WL 5666695

(2d Cir. Sept. 24, 2020) ........................................ 21

Samantar v. Yousuf,

560 U.S. 305 (2010) ................................................ 8

Schooner Exchange v. M’Faddon,

7 Cranch 116 (1812) ............................................... 3

Simon v. Republic of Hungary,

812 F.3d 127 (D.C. Cir. 2016) .............................. 12

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) ...................................... passim

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes and Acts of Congress

28 U.S.C. § 1330(a) ................................................ 7, 16

28 U.S.C. § 1602 ...................................................... 8, 9

28 U.S.C. § 1604 .......................................................... 6

28 U.S.C. § 1605 .................................................... 9, 12

28 U.S.C. § 1605(a) ................................................ 7, 16

28 U.S.C. § 1605(a)(3) ................................... 1, 6, 9, 21

28 U.S.C. § 1605(h)(1) ............................................... 12

28 U.S.C. § 1605(h)(2) ......................................... 12, 14

28 U.S.C. § 1605(h)(2)(A) .......................................... 13

28 U.S.C. § 1605(h)(2)(B) .......................................... 13

28 U.S.C. § 1605(h)(3)(B) .......................................... 13

28 U.S.C. § 1605(h)(3)(C) .......................................... 13

28 U.S.C. § 1606 ...................................................... 6, 9

28 U.S.C. § 1607 ...................................................... 6, 9

Holocaust Expropriated Art Recovery

Act, Pub. L. No. 114-308, 130 Stat.

1524 (2016) ........................................................... 11

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Holocaust Victims Redress Act, Pub. L.

No. 105-158, 112 Stat. 15 (1998) ..................... 1, 11

U.S. Holocaust Assets Commission Act,

Pub. L. No. 105-186, 112 Stat. 611

(1998) .................................................................... 11

Foreign Cultural Exchange

Jurisdictional Immunity

Clarification Act, Pub. L. No. 114319, 130 Stat. 1618 (2016) ............................. 12, 13

Rules

Fed. R. Civ. P. 23 ....................................................... 22

Other Authorities

Joseph W. Dellapenna,

Suing Foreign Governments and

Their Corporations (1998) ..................................... 9

Hazel Fox & Philippa Webb,

Law of State Immunity (3d ed. 2013).......... passim

Maggie Gardner,

Abstention at the Border,

105 Va. L. Rev. 63 (2019) ..................................... 15

H.R. Rep. 94-1487.............................................. passim

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Michael D. Murray,

Jurisdiction Under the Foreign

Sovereign Immunities Act for Nazi

War Crimes of Plunder and

Expropriation,

7 N.Y.U. J. Legis. & Pub. Pol’y 223

(2004) .................................................................. 5, 6

1

INTEREST OF AMICI CURIAE

Amici curiae are Members of the United States

House of Representatives. They have a fundamental,

institutional interest in safeguarding Congress’s legislative prerogative to extend or deny immunity to foreign sovereigns in particular situations and in ensuring that the Foreign Sovereign Immunities Act is

faithfully applied by the courts in accordance with

Congress’s intent. The names of individual amici are

listed in the Appendix. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT

In the decades since World War II, Congress has

repeatedly enacted legislation designed “to provide a

measure of justice to survivors of the Holocaust all

around the world.” 2 Congress’s decision, as codified

in the Foreign Sovereign Immunities Act (“FSIA” or

“Act”), to subject foreign nations to suit in United

States courts in “any case . . . in which rights in property taken in violation of international law are in issue,” 28 U.S.C. § 1605(a)(3), is consistent with, and

essential to, that legislative aim. By permitting Respondents here—Holocaust victims and their descendants—to pursue actions seeking recovery of

property seized as part of a genocidal campaign

1 All parties have consented to the filing of this brief. Amici

state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici

or their counsel made a monetary contribution intended to fund

the preparation or submission of this brief.

2 Holocaust Victims Redress Act, Pub. L. No. 105-158, 112

Stat. 15 (1998); see also infra Pt. II (detailing various legislation

aimed at providing redress for victims of the Holocaust).

2

against the Jewish population, the D.C. Circuit correctly identified and gave effect to Congress’s intent.

The decisions below should therefore be affirmed.

Notwithstanding Congress’s clear legislative intent, Petitioners seek to avoid litigation in United

States courts by urging this Court to endorse a policy

of judicial abstention based on considerations of international comity. That position, if adopted, would constitute an impermissible judicial usurpation of Congress’s powers. Through enactment of the FSIA, Congress exercised its incontrovertible authority to decide, as a matter of international comity and federal

law, “whether and under what circumstances foreign

nations [w]ould be amenable to suit in the United

States.” Verlinden B.V. v. Cent. Bank of Nigeria, 461

U.S. 480, 493 (1983). Accordingly, federal courts must

abide by their “virtually unflagging obligation . . . to

exercise the jurisdiction given to them” here. Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 817 (1976). Were this Court to adopt

Petitioners’ argument and authorize ad hoc judicial

decisions regarding international comity, it would

eviscerate FSIA’s uniform framework for determining

the bounds of sovereign immunity and revert to the

same state of “disarray” that Congress sought to (and

did) remedy through enactment of the statute. Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134,

141 (2014).

The Court should respect Congress’s clear legislative intent and permit Holocaust victims and their

families the opportunity to seek justice in this nation’s

courts for genocidal takings.

3

ARGUMENT

I.

THE FSIA REPLACED AD HOC FOREIGN SOVEREIGN

IMMUNITY

DETERMINATIONS

WITH

A

COMPREHENSIVE FRAMEWORK TO BE UNIFORMLY

APPLIED BY THE COURTS.

Through enactment of the FSIA in 1976, Congress

sought to replace an ad hoc regime of foreign sovereign immunity—which at the time was riddled with

uncertainties and subject to the political motivations

of the Executive Branch—with an objective framework that could be uniformly applied to determine

whether and when foreign sovereigns would be subject to suits by private litigants in United States

courts.

A. Prior to Congress’s Enactment of the FSIA,

the Regime of Sovereign Immunity Was in a

State of Disarray.

This Court has long recognized that foreign sovereign immunity is inseparable from, and indeed premised upon, considerations of international comity. As

Chief Justice Marshall recognized in the foundational

decision of Schooner Exchange v. M’Faddon, 7 Cranch

116, 136 (1812), foreign sovereigns have no legal right

to immunity in our courts. Rather, “as a matter of

comity, members of the international community

ha[ve] implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of

cases.” Republic of Austria v. Altmann, 541 U.S. 677,

688 (2004) (citing Schooner Exch., 7 Cranch at 137).

Foreign sovereign immunity is thus not a constitutional command, nor a matter of right, but the product

of “grace and comity on the part of the United States.”

Verlinden, 461 U.S. at 486.

4

In accordance with this conception of foreign sovereign immunity as a “gesture of comity,” courts have

consistently “resolved questions of foreign sovereign

immunity by deferring to the ‘decisions of the political

branches . . . on whether to take jurisdiction.’” Altmann, 541 U.S. at 696 (alteration in original) (citation

omitted). Until 1952, this largely meant deferring to

the Executive Branch’s “policy of requesting immunity in all actions against friendly sovereigns.” Id. at

689.

That year, the State Department abandoned what

effectively had been a regime of “complete immunity

from suit” in favor of the “restrictive theory” of foreign

sovereign immunity. Verlinden, 461 U.S. at 486–87.

This evolution in sovereign immunity policy, born of

the so-called “Tate Letter” sent by the State Department to the Attorney General in 1952, heralded a regime in which immunity would be reserved for actions

involving the foreign sovereign’s public acts, but not

its “private” commercial acts. See Letter from Jack B.

Tate, Acting Legal Adviser, Department of State, to

Acting Attorney General Philip B. Perlman (May 19,

1952), reprinted in 26 Dep’t of State Bull. 984, 984–85

(1952) (“Tate Letter”); see also NML Capital, 573 U.S.

at 140.

This “restrictive theory” of foreign sovereign immunity, however, was not codified into law, Verlinden,

461 U.S. at 487, and the Tate Letter, for its part, was

“very general in its terms” and did not “provide any

criterion to distinguish commercial from public transactions,” Hazel Fox & Philippa Webb, Law of State

Immunity 145–46 (3d ed. 2013). Application of the restrictive theory continued to depend on the State Department’s case-by-case “suggestions of immunity,”

Verlinden, 461 U.S. at 487, which “appeared to turn

5

more on political considerations than legal principle.”

Fox & Webb, supra, at 146. As this Court has noted,

“foreign nations often placed diplomatic pressure on

the State Department in seeking immunity,” leading

at times to “suggestions of immunity in cases where

immunity would not have been available under the restrictive theory.” Verlinden, 461 U.S. at 487. Complicating matters further, foreign nations did not always

make immunity requests to the State Department,

leaving the courts to determine whether immunity existed in a given case, “generally by reference to prior

State Department decisions.” Id.; Fox & Webb, supra,

at 146 (“The initiative rested with the foreign State

whether to plead immunity and whether to pursue it

through the courts or to refer it to the State Department, and if so whether to apply diplomatic influence.”).

Together, these uncertainties left the regime of

sovereign immunity in a state of “disarray.” NML

Capital, 573 U.S. at 141. Decisions were “politically

and foreign policy motivated” and “subject to diplomatic pressures,” with no clearly-defined nor uniformly-applied governing standards. Michael D. Murray, Jurisdiction Under the Foreign Sovereign Im-

munities Act for Nazi War Crimes of Plunder and Expropriation, 7 N.Y.U. J. Legis. & Pub. Pol’y 223, 254

(2004); Verlinden, 461 U.S. at 487. Private litigants

were consequently “left in great uncertainty as to

whether [their] legal dispute would be decided by

‘non-legal considerations through the foreign government’s intercession with the Department of State.’”

Fox & Webb, supra, at 146 (citation omitted).

It was precisely this “bedlam,” NML Capital, 573

U.S. at 141, which became a “motivating factor for the

6

codification and standardization of the restrictive theory” through legislative action. Murray, supra, at 254.

B. Congress Enacted the FSIA to Provide an Objective Set of Legal Standards Governing the

Bounds of, and Exceptions to, Foreign Sovereign Immunity.

It is “undisputed” that Congress has the prerogative and power “to decide, as a matter of federal law,

whether and under what circumstances foreign nations should be amenable to suit in the United States.”

Verlinden, 461 U.S. at 493. In 1976, Congress exercised that power and brought order to the chaos of foreign sovereign immunity determinations by passing

the FSIA. Id.

The FSIA sets forth a “comprehensive set of legal

standards governing claims of immunity in every civil

action against a foreign state.” NML Capital, 573 U.S.

at 141 (citation omitted). Specifically, the FSIA establishes a “general grant of immunity” for foreign sovereigns, then carves out exceptions to immunity for certain types of actions. Altmann, 541 U.S. at 691; 28

U.S.C. §§ 1604–07. 3 Congress explicitly stated, in

mandatory language, that “[a] foreign state shall not

be immune from the jurisdiction of courts of the

3 Exceptions to the general grant of immunity include actions

in which the foreign state has waived its immunity, § 1605(a)(1),

and actions based on the foreign state’s commercial activities in

the United States or causing a direct effect in the United

States, § 1605(a)(2). Exceptions also exist for certain actions

that involve: property taken in violation of international

law, § 1605(a)(3); rights in real estate and gifted or inherited

property in the United States, § 1605(a)(4); certain torts within

the United States, § 1605(a)(5); certain agreements to arbitrate,

§ 1605(a)(6); maritime liens, § 1605(b); foreclosure of preferred

mortgages, § 1605(d); terrorism-related claims, §§ 1605A, 1605B;

and certain counterclaims, § 1607.

7

United States” where any of those exceptions apply.

28 U.S.C. § 1605(a) (emphasis added); see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26, 35 (1998) (recognizing that “shall” is

“mandatory” and “normally creates an obligation impervious to judicial discretion”). The FSIA thus

grants jurisdiction—and expressly denies immunity—

for certain claims, thereby providing a forum for the

vindication of those claims in United States federal

courts. See 28 U.S.C. § 1330(a) (establishing federal

subject matter jurisdiction “as to any claim for relief

. . . with respect to which the foreign state is not entitled to immunity . . . under sections 1605–1607 of this

title”).

The FSIA’s “comprehensive” scheme shifted determinations of foreign sovereign immunity from a regime of ad hoc, politically-influenced Executive

Branch decisions to a system of predictable, judiciallyapplied legal standards. See Verlinden, 461 U.S. at

488. This was not a matter of Congress transferring

discretionary, case-by-case decision-making from the

Executive Branch to the Judiciary. The FSIA did not

empower courts to make foreign policy decisions, to

determine sovereign immunity based on their own

weighing of diplomatic considerations, or to invent extra-statutory factors to apply, as if judges were simply

enrobed State Department officials. Rather, Congress

explicitly intended to “reduc[e] the foreign policy implications of immunity determinations and assur[e]

litigants that these often crucial decisions are made

on purely legal grounds.” H.R. Rep. 94-1487, at 7.

In other words, the FSIA was designed to standardize immunity decisions in order to ensure a “uniform body of law.” H.R. Rep. 94-1487, at 32. Predictability and uniformity of application was key—the

8

FSIA was designed to replace case-by-case determinations of the Executive with legislatively-prescribed

rules, to be applied consistently by the courts. Fox &

Webb, supra, at 238–39 (the FSIA “minimize[d] the

foreign policy implications,” provided “clearer legal

standards,” and established immunity “as a predictable certain rule, if at times substantively unfavourable” to a sovereign); Altmann, 541 U.S. at 737 (Kennedy, J., dissenting) (“With the FSIA, Congress tried

to settle foreign sovereigns’ prospective expectations

for being subject to suit in American courts.”).

The FSIA is now the sole governing authority over

“whether a foreign state is entitled to sovereign immunity.” NML Capital, 573 U.S. at 141–42; see also

Republic of Argentina v. Weltover, Inc., 504 U.S. 607,

611 (1992) (“The FSIA thus provides the ‘sole basis’

for obtaining jurisdiction over a foreign sovereign in

the United States.” (citation omitted)). Indeed, Congress said so expressly in passing the FSIA, directing

that “[c]laims of foreign states to immunity should

henceforth be decided by courts . . . in conformity with

the principles set forth in this [Act].” 28 U.S.C.

§ 1602. “[A]ny sort of immunity defense made by a

foreign sovereign in an American court must stand on

the Act’s text. Or it must fall.” NML Capital, 573 U.S.

at 141–42.

Because foreign sovereign immunity is and always has been a matter of “grace and comity,” Congress, by setting forth the areas for which the United

States will and will not afford foreign sovereign immunity, has necessarily considered the scope of the

“grace and comity” the United States is willing to extend, and codified those considerations in the text of

the FSIA. Verlinden, 461 U.S. at 486, 488; Samantar

v. Yousuf, 560 U.S. 305, 313 (2010) (one of the FSIA’s

9

“primary purposes” is “to endorse and codify the restrictive theory of sovereign immunity”); 28 U.S.C.

§ 1602; see also, e.g., H.R. Rep. 94-1487, at 7 (the FSIA

is intended to “codify” the restrictive principle of sovereign immunity).

II. THE FSIA’S EXCEPTION FOR GENOCIDAL TAKINGS

IS CONSISTENT WITH CONGRESS’S REPEATED

LEGISLATIVE EFFORTS TO PROVIDE REDRESS FOR

VICTIMS OF THE HOLOCAUST.

Congress has repeatedly made clear that it expects U.S. courts to adjudicate claims against foreign

sovereigns that fall within an exception to sovereign

immunity codified in the FSIA. The FSIA should be

interpreted and applied accordingly.

In passing the FSIA, Congress intended to “encourage the bringing of actions against foreign states

in Federal courts.” H.R. Rep. 94-1487, at 13; see also

Joseph W. Dellapenna, Suing Foreign Governments

and Their Corporations v (1998) (“When Congress enacted the Foreign Sovereign Immunities Act of 1976,

it intended to encourage suits in U.S. courts against

foreign governments and foreign-government-owned

corporations.”). Thus, jurisdiction extends to “any

claim with respect to which the foreign state is not entitled to immunity” under the exceptions listed in 28

U.S.C. §§ 1605–07. H.R. Rep. 94-1487, at 13 (emphasis added).

Among those exceptions is the “expropriation exception,” under which foreign sovereigns “shall not be

immune from the jurisdiction of courts of the United

States or of the States in any case . . . in which rights

in property taken in violation of international law are

in issue.” 28 U.S.C. § 1605(a)(3) (emphasis added).

Per the statute’s plain—and mandatory—terms and

10

Congress’s expressly articulated intent, therefore, the

FSIA could not be clearer that it expects—indeed, “encourage[s]”—claimants to be able to bring suit against

a foreign sovereign in federal court to redress takings

“in violation of international law.” H.R. Rep. 94-1487,

at 13, 19–20.

As the D.C. Circuit recognized below in Philipp,

although domestic takings of property—that is, a foreign state’s taking of its own citizen’s property—usually do not violate international law, it can hardly be

debated that commission of genocide does violate international law, 4 and takings that “amounted to the

commission of genocide,” even if against a sovereign’s

own citizens, therefore subject the foreign sovereign

and its instrumentalities to the FSIA’s expropriation

exception. Philipp v. Federal Republic of Germany,

894 F.3d 406, 410–11 (D.C. Cir. 2018); see also

Philipp, Resp. Br. 11–13, 26–28.

The Nazi expropriation of art and other property

was a genocidal taking that was part and parcel of

that most heinous and unequivocal violation of international law—the Holocaust. Indeed, Congress has

repeatedly made this exact finding, and codified it as

law, in its consistent and repeated legislative efforts

to facilitate redress for victims of the Holocaust.

For example, in the Holocaust Victims Redress

Act of 1998, Congress acknowledged that “[t]he Nazis’

4 “All U.S. courts to consider the issue” have recognized genocide as “a violation of customary international law.” Abelesz v.

Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012) (collecting cases); see also Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 U.N.T.S.

277 (affirming that “genocide, whether committed in time of

peace or in time of war, is a crime under international law”).

11

policy of looting art was a critical element and incentive in their campaign of genocide.” Holocaust Victims

Redress Act, Pub. L. No. 105-158, 112 Stat. 15,

§ 201(4) (1998). That Act further directed that “all

governments should undertake good faith efforts to facilitate the return of private and public property, such

as works of art, to the rightful owners in cases where

assets were confiscated from the claimant during the

period of Nazi rule.” Id. at § 202. That same year,

Congress passed the U.S. Holocaust Assets Commission Act of 1998, establishing a presidential commission to study the disposition of assets of Holocaust victims, including art, that passed through U.S. government hands. Pub. L. No. 105-186, 112 Stat. 611

(1998).

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”), which presupposes the viability of, and seeks to facilitate, litigation

to recover art and other property that was misappropriated by the Nazis. The HEAR Act stated Congress’s finding that “the Nazis confiscated or otherwise misappropriated hundreds of thousands of works

of art and other property throughout Europe as part

of their genocidal campaign against the Jewish people

and other persecuted groups,” and extended the statute of limitations for claimants to bring actions for cultural property “lost” between January 1, 1933 to December 31, 1945 “because of Nazi persecution.” Holocaust Expropriated Art Recovery Act of 2016, Pub. L.

No. 114-308, §§ 2(1), 5(1) 130 Stat. 1524, 1524, 1526.

The HEAR Act unambiguously manifests Congress’s intent for Holocaust victims and their heirs,

like the Respondents here, to be able to bring their

claims for genocidal takings against sovereigns in

U.S. courts. By the time that Congress passed the

12

HEAR Act in 2016, the D.C. Circuit in Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) had

already held that genocidal takings claims were subject to the expropriation exception under the FSIA.

Had Congress intended the reach of the expropriation

exception to be limited by the domestic takings rule,

it could and would have so clarified in the HEAR Act;

instead, it actively sought to expand avenues for the

kind of relief sought here. 5

Another 2016 law further exemplifies Congress’s

intent to permit certain domestic takings claims to

proceed under the expropriation exception. With the

Foreign Cultural Exchange Jurisdictional Immunity

Clarification Act (“FCEJICA”), Congress amended the

FSIA itself by adding subsection (h) to 28 U.S.C.

§ 1605. Pub. L. No. 114-319, 130 Stat. 1618 (2016).

The new subsection (h) provides that the temporary

exhibition in the United States of artworks owned by

a foreign State is not, under certain circumstances,

“commercial activity” by that State for purposes of the

FSIA, and thus the exhibition of that artwork will not

result in the denial of immunity to the foreign sovereign under the expropriation exception. 28 U.S.C.

§ 1605(h)(1). However, Congress created an express

carve-out for property that is the subject of “Nazi-era”

expropriation claims. 28 U.S.C. § 1605(h)(2). Under

that exception, immunity will nevertheless be denied

5 Indeed, while Petitioners in Philipp had originally interposed a statute of limitations defense, they withdrew that argument in light of the HEAR Act. See Philipp v. Federal Republic

of Germany, 248 F. Supp. 3d 59, 63 n.1 (D.D.C. 2017); see also,

e.g., de Csepel v. Republic of Hungary, 2020 WL 2343405, at *34

(D.D.C. May 11, 2020) (applying the HEAR Act to Holocaust art

recovery claim brought pursuant to the FSIA’s expropriation exception).

13

in cases concerning property taken in violation of international law between January 30, 1933 and May 8,

1945 by the government of Germany or any government in Europe that was occupied by, assisted, or allied with Germany. 28 U.S.C. § 1605(h)(2)(A), (3)(B),

(3)(C). Again, like the HEAR Act, Congress passed the

FCEJICA after courts had already allowed claims for

genocidal takings under the expropriation exception

to proceed. The unavoidable implication of the

FCEJICA’s “Nazi-era claims” exception is that the

FSIA has never afforded, and should not now be interpreted to afford, sovereign immunity to genocidal takings claims like the ones alleged here.

Indeed, the FCEJICA goes even further than

“Nazi-era claims” and extends its exception broadly to

other claims well beyond the limits of the domestic

takings rule. In addition to the “Nazi-era claims” exception, the FCEJICA excepts from its “temporary exhibition” rule property that was taken “after 1900” “in

connection with the acts of a foreign government as

part of a systematic campaign of coercive confiscation

or misappropriation of works from members of a targeted and vulnerable group.”

28 U.S.C.

§ 1605(h)(2)(B). This exception reflects Congress’s approval of an expansive array of expropriation claims,

with no suggestion whatsoever that the “systematic

campaign of coercive confiscation or misappropriation” must be carried out only against a foreign group

of “targeted and vulnerable” people. Id. Had Congress intended to limit the expropriation exception

and the FCEJICA to the confines of the domestic takings rule, it would have done so. It did not. To the

contrary, Congress spoke in capacious terms, consistent with its repeated efforts to facilitate suits under the FSIA and its repeated efforts to facilitate redress for victims of genocidal takings, regardless of

14

the particular state boundaries within which that

genocide occurred.

The Philipp Petitioners’ contention that “Congress never intended” the expropriation exception to

confer a “vast grant of federal jurisdiction over foreign

states” ignores this history. Philipp, Pet. Br. 2–3.

Congress has explicitly sanctioned claims arising from

over a century of wrongs carried out by sovereigns

against “targeted and vulnerable” groups, repeatedly

sought to facilitate redress for Nazi-era takings, and

made clear its intent at the genesis of the FSIA to “encourage” claims against sovereigns in federal courts.

The D.C. Circuit’s decisions below jibes with and furthers that congressional intent. 6

6 Petitioners’ contention that the expropriation exception departs from the restrictive theory of sovereign immunity, which

the FSIA otherwise intended to codify, is of no moment and certainly not a reason to read the exception narrowly. See Philipp,

Pet. Br. 33–34. As this Court has stated, “there are fair arguments to be made that a sovereign’s taking of its own nationals’

property sometimes amounts to an expropriation that violates

international law, and the expropriation exception provides that

the general principle of immunity for these otherwise public acts

should give way.” Bolivarian Republic of Venezuela v. Helmerich

& Payne Int’l Drilling Co., 137 S. Ct. 1312, 1321 (2017). The expropriation exception is, in any event, unique—it has “no parallel

. . . in the practice of other States.” Fox & Webb, supra, at 267.

There is thus no basis to cram this sui generis exception to sovereign immunity into customary conceptions of the restrictive

theory; its very existence marks it as a departure. Given Congress’s robust support for redressing Holocaust property crimes,

and its expansive understanding of the contours of the expropriation exception, see 28 U.S.C. § 1605(h)(2), that exception should

be read to deny immunity and establish jurisdiction for claims

like the ones alleged here.

15

III. CONGRESS HAS ALREADY DECIDED, AS A MATTER

OF COMITY, TO EXCEPT SOVEREIGN IMMUNITY FOR

GENOCIDAL TAKINGS, AND COURTS SHOULD NOT

NOW

SECOND-GUESS

THAT

LEGISLATIVE

COMMAND.

Notwithstanding the FSIA’s plain text, Congress’s

broad conception of the expropriation exception, and

its unambiguous intent to facilitate claims like Respondents’, Petitioners contend that courts should be

free to cast all of that aside and abstain, under “principles of comity,” from hearing claims for which Congress has conferred jurisdiction and expressly denied

immunity. Philipp, Pet. Br. 41; see also Simon, Pet.

Br. 29 (“Even when a foreign state lacks sovereign immunity under the FSIA . . . the court may abstain on

the ground of comity when the dispute can more appropriately be resolved by a different sovereign.”).

Such a judicial usurpation of Congress’s powers is improper under our constitutional framework.

A. The FSIA Reflects Congress’s Express Determinations Regarding When Comity Should

and Should Not Result in Sovereign Immunity, to Which Courts Should Defer.

This Court has made clear that “federal courts

have a strict duty to exercise the jurisdiction that is

conferred upon them by Congress.” Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 716 (1996); see also

Colorado River, 424 U.S at 821 (noting the “virtually

unflagging obligation of the federal courts to exercise

the jurisdiction given to them”). A court’s refusal to

hear a case properly before it improperly “encroach[es] on Congress’s prerogative to set the jurisdiction of the federal courts” and “risks undermining

Congress’s regulatory goals.” Maggie Gardner, Abstention at the Border, 105 Va. L. Rev. 63, 68, 83–84

16

(2019); see New Orleans Pub. Serv., Inc. v. Council of

City of New Orleans, 491 U.S. 350, 359 (1989) (“Congress, and not the Judiciary, defines the scope of federal jurisdiction.”).

Here, Petitioners would have the courts, at their

discretion, commit the dual constitutional trespasses

of overriding Congress’s “undisputed” Article I power

to decide “whether and under what circumstances foreign nations should be amenable to suit in the United

States” and relinquishing their Article III duty to hear

cases properly before them. Verlinden, 461 U.S. at

493. This Court should not sanction such a negation

and abrogation of the constitutional order.

Congress could not have been clearer that under

the FSIA, “[a] foreign state shall not be immune from

the jurisdiction of courts of the United States or of the

States in any case” in which an enumerated exception

applies, 28 U.S.C. § 1605(a) (emphasis added), and

that “[t]he district courts shall have original jurisdiction . . . of any nonjury civil action against a foreign

state” for any claim not entitled to immunity under

the FSIA’s exceptions, 28 U.S.C. § 1330(a) (emphasis

added). This mandatory language is “impervious to

judicial discretion.” Lexecon, 523 U.S. at 35. Federal

courts “have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which

is not given.” Mims v. Arrow Fin. Servs., LLC, 565

U.S. 368, 376 (2012) (quoting Cohens v. Virginia, 6

Wheat. 264, 404 (1821)).

Petitioners contend that none of the foregoing

principles matter here because “[c]omity-based abstention differs from jurisdiction.” Philipp, Pet. Br.

41; Simon, Pet. Br. 28 (“comity-based abstention is not

an ‘immunity defense’”). According to Petitioners,

courts should be free to decline to hear cases for which

17

they indisputably have proper jurisdiction if, in their

discretion, the dispute “risk[s] international friction,

pose[s] serious concerns to a foreign sovereign, and

[has] little connection to the United States,” Philipp,

Pet. Br. 41, or if they simply believe it should be “adjudged elsewhere” or that exercising jurisdiction is

“unreasonable,” Simon, Pet. Br. 24, 35. But this fundamentally misunderstands the nature of international comity and sovereign immunity, as well as the

purposes of the FSIA as the embodiment of Congress’s

categorical comity determinations.

As this Court has repeatedly recognized, sovereign immunity is itself a matter of—and inseparable

from—international comity. See supra, Part I.A; see

also, e.g., Verlinden, 461 U.S. at 486 (sovereign immunity is a matter of “grace and comity on the part of

the United States”); Altmann, 541 U.S. at 696 (the extension of sovereign immunity is a “gesture of comity”). This is precisely why courts have deferred to the

political branches in determining questions of sovereign immunity: it is up to the political branches to extend or withhold that comity to foreign powers. See

Bank Markazi v. Peterson, 136 S.Ct. 1310, 1329

(2016) (“[I]t remains Congress’ prerogative to alter a

foreign state’s immunity,” and in so doing, it “act[s]

comfortably within the political branches’ authority

over foreign sovereign immunity and foreign-state assets.”).

When Congress passed the FSIA—which this

Court has emphasized “comprehensively regulat[es]

the amenability of foreign nations to suit”—it necessarily balanced the competing interests involved in

deciding which areas should be “grace[d]” with the

United States’ comity, and set forth its conclusions in

the text of the statute. Verlinden, 461 U.S. at 493,

18

486; see also Rubin v. Islamic Republic of Iran, 138 S.

Ct. 816, 822 (2018) (“Congress enacted the FSIA in an

effort to codify this careful balance between respecting

the immunity historically afforded to foreign sovereigns and holding them accountable, in certain circumstances, for their actions.”). Petitioners’ suggestion that comity concerns are somehow different from

“immunity defense[s]” is thus contrary to the very conception of sovereign immunity. Philipp, Pet. Br. 48–

49; Simon, Pet. Br. 28. And as this Court has stated,

“any sort of immunity defense . . . must stand on the

[FSIA’s] text. Or it must fall.” NML Capital, 573 U.S.

at 141–42.

The text of the statute provides no discretion for

courts to supplant Congress’s foreign policy decisions

with their own by refusing, on a case-by-case basis, to

adjudicate claims that are properly before them on

comity grounds. Congress has, in carving out specifically enumerated exceptions from the FSIA’s general

grant of immunity, by definition already weighed comity considerations; with respect to the expropriation

exception at issue here, it has already decided that

when a foreign sovereign expropriates property in violation of international law, the United States will not

extend comity toward it and will not abstain from

hearing claims against it. Courts should not be permitted to override that decision.

To do so would be wholly contrary to the purposes

of the FSIA. In passing the FSIA, Congress sought to

ground foreign sovereign immunity decisions in the

uniform, categorical, legal standards provided by statute, moving away from the prior regime of foreign policy-based, ad hoc executive discretion. Id. at 141; H.R.

Rep. 94-1487, at 7 (FSIA intended to “reduc[e] the foreign policy implications of immunity determinations

19

and assur[e] litigants that these often crucial decisions are made on purely legal grounds”); Fox & Webb,

supra, at 249 (“The FSIA itself speaks loudly against

a discretionary view of sovereign immunity.”). Vague,

discretionary considerations of “comity” are decidedly

not “legal” standards. Pravin Banker Assocs., Ltd. v.

Banco Popular Del Peru, 109 F.3d 850, 854 (2d Cir.

1997) (comity is a “rule of practice, convenience, and

expediency, rather than of law”); see also In re Picard,

Tr. for Liquidation of Bernard L. Madoff Inv. Sec.

LLC, 917 F.3d 85, 101 (2d Cir. 2019), cert. denied sub

nom. HSBC Holdings PLC v. Picard, 140 S. Ct. 2824

(2020) (“Adjudicative comity abstention . . . concerns

a matter of judicial discretion.”); JP Morgan Chase

Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d

418, 423 (2d Cir. 2005) (“[T]he doctrine [of international comity] is not an imperative obligation of courts

but rather is a discretionary rule of practice, convenience, and expediency.”). Subjecting each case to a

court’s own comity analysis would negate Congress’s

intent and simply replace ad hoc executive discretion

with ad hoc judicial discretion. Instead of the State

Department making politicized, case-by-case foreign

policy decisions to determine immunity, it would now

be courts doing so.

For example, Petitioners in Simon would have

courts wade through a panoply of extra-statutory factors in each case, including, under the rubric of “adjudicative comity,” the “historic and political importance

of the subject matter” to the foreign sovereign; other

laws it may have passed to “redress past, unjust government policies”; how much the sovereign may have

already paid to others individuals for other wrongs;

the size of any potential recovery and its impact on the

sovereign’s economy; the degree of the United States’

interest in the litigation and the nature of its economic

20

and diplomatic relationship with the foreign sovereign; and the adequacy of local remedies. Simon, Pet.

Br. 36–39. But that is not all. Separately, under the

rubric of “prescriptive comity,” courts must also consider whether hearing a case otherwise properly before it is “unreasonable,” which is determined by

“evaluating all relevant factors.” Id. at 47.

This kind of free-wheeling judicial factor-hunting

is not only inconsistent with, but is in fact diametrically opposed to, the FSIA’s “comprehensive” scheme.

NML Capital, 573 U.S. at 141. Indeed, permitting

courts to graft a discretionary comity determination

onto every case before them would be even worse than

the “bedlam” that predated the FSIA; the judiciary is

simply not equipped to make these kinds of policy decisions. See Hernandez v. Mesa, 140 S. Ct. 735, 749

(2020) (“Foreign policy . . . decisions are delicate, complex, and involve large elements of prophecy for which

the Judiciary has neither aptitude, facilities, nor responsibility.”). “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Jesner v. Arab

Bank, PLC, 138 S. Ct. 1386, 1403 (2018).

Courts should not be free to effectively shield sovereigns from liability for wrongs that Congress has already decided are redressable in United States courts.

Congress expressly conferred jurisdiction over such

claims, and it is “[t]he duty of the judiciary is to exercise th[at] jurisdiction.” Burford v. Sun Oil Co., 319

U.S. 315, 348 (1943) (Frankfurter, J., dissenting).

B. The Expropriation Exception Remains Subject to Numerous Constraints.

Although courts should not refrain, on comity

grounds, from adjudicating claims that fall under the

21

expropriation exception, that exception remains subject to—and, as appropriate, limited by—numerous

limitations, including statutory constraints, an exacting pleading standard, federal common-law doctrines

such as forum non conveniens, and other procedural

hurdles such as class certification requirements. To

prevail, any plaintiff will also bear the burden of proving his or her claims on the merits. Petitioners’ purported concern regarding a potential cascade of litigation against foreign sovereigns is entirely overblown.

In order to avail itself of the FSIA’s expropriation

exception, a plaintiff must establish not only that her

rights in the subject property were “taken in violation

of international law,” but also that there is an adequate nexus between that property and a commercial

activity (or activities) in the United States. See 28

U.S.C. § 1605(a)(3); de Csepel v. Republic of Hungary,

859 F.3d 1094, 1101 (D.C. Cir. 2017) (expropriation

exception requires “an adequate commercial nexus between the United States and the defendants”).

Further, this Court has held that a plaintiff’s

mere assertion of a “nonfrivolous” expropriation claim

is insufficient to support jurisdiction under the FSIA.

See Helmerich, 137 S. Ct. at 1316. Instead, a plaintiff’s “relevant factual allegations must make out a legally valid claim,” and courts “should normally resolve

[] factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably

possible.” Id. at 1316–17 (emphasis added); see also

Rukoro v. Federal Republic of Germany, 2020 WL

5666695, at *4 (2d Cir. Sept. 24, 2020) (holding that

although the “conclusory allegations in the amended

complaint” might “satisfy a plausibility standard,”

they did not satisfy Helmerich’s “valid argument

standard”).

22

Finally, common-law doctrines such as forum non

conveniens remain applicable as limiting principles

for FSIA claims, see Verlinden, 461 U.S. at 490 n.15

(recognizing the applicability of other “traditional”

federal common law doctrines like forum non conveniens in FSIA cases), as do rules governing the certification of class actions, see generally Fed. R. Civ. P. 23.

Those doctrines and rules remain wholly within the

judiciary’s power to employ and enforce before an action proceeds to the merits. And in order to prevail on

the merits, any plaintiff would have to prove each element of the underlying causes of action asserted.

Petitioners’ arguments concerning the international relations consequences of affirmance are, thus,

greatly exaggerated. And regardless, they “are better

directed to that branch of government with authority

to amend the Act”—Congress. NML Capital, 573 U.S.

at 146.

23

CONCLUSION

The judgments of the United States Court of Appeals for the District of Columbia Circuit should be affirmed.

Respectfully submitted.

AKIVA SHAPIRO

COUNSEL OF RECORD

GENEVIEVE B. QUINN

TIMOTHY SUN

GRACE E. HART

ANDREW C. BERNSTEIN

NICOLE SANTORA

GIBSON, DUNN & CRUTCHER

LLP

200 Park Ave.

New York, NY 10166

(212) 351-4000

ashapiro@gibsondunn.com

Counsel for Amici Curiae

October 29, 2020

1a

APPENDIX A:

Amici Curiae Members of the

United States House of Representatives

The following Members of the United States

House of Representatives respectfully submit the

foregoing brief as amici curiae.

Rep. Jim Banks

(R-IN-3)

Rep. Steve Chabot

(R-OH-1)

Rep. Josh Gottheimer

(D-NJ-5)

Rep. Brian Fitzpatrick

(R-PA-1)

Rep. Deborah Wasserman

Schultz

(D-FL-23)