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

Nos. 18-1447 & 19-351

IN THE

Supreme Court of the United States

__________

REPUBLIC OF HUNGARY, ET AL.,

Petitioners,

v.

ROSALIE SIMON, ET AL.,

Respondents.

FEDERAL REPUBLIC OF GERMANY, ET AL.,

Petitioners,

v.

ALAN PHILIPP, ET AL.,

Respondents.

__________

On Writs of Certiorari

to the United States Court of Appeals

for the D.C. Circuit

__________

BRIEF OF PROFESSORS WILLIAM S. DODGE AND

MAGGIE GARDNER AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

__________

October 29, 2020

GEOFFREY M. KLINEBERG

Counsel of Record

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(gklineberg@kellogghansen.com)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

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

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 7

I. THIS COURT SHOULD NOT RECOGNIZE THE NEW ABSTENTION DOCTRINE URGED BY PETITIONERS ............... 7

A. Prudential Comity Abstention Is

Novel ........................................................... 7

B. Prudential Comity Abstention Would

Undermine This Court’s Efforts To

Limit Doctrines of Restraint .................... 14

1. Petitioners’ proposed abstention

doctrine would extend to nondiscretionary relief .............................. 15

2. Prudential comity abstention

undermines the limits this Court

has placed on other doctrines ............. 18

C. Any Doctrine of Prudential Comity

Abstention Could Not Be Limited to

Cases Involving Foreign Sovereigns ........ 22

II. EXHAUSTION DOES NOT PROVIDE

AN ALTERNATIVE GROUND FOR

DISMISSAL.................................................... 24

III. EXISTING DOCTRINES OF INTERNATIONAL COMITY ADDRESS PETITIONERS’ CONCERNS................................. 27

CONCLUSION.......................................................... 29

ii

TABLE OF AUTHORITIES

Page

CASES

AAR Int’l, Inc. v. Nimelias Enters. S.A., 250

F.3d 510 (7th Cir. 2001) ...................................... 13

Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir.

2000)..................................................................... 13

American Dredging Co. v. Miller, 510 U.S. 443

(1994) ................................................................... 12

American Ins. Ass’n v. Garamendi, 539 U.S. 396

(2003) ................................................................... 11

Animal Sci. Prods., Inc. v. Hebei Welcome

Pharm. Co., 138 S. Ct. 1865 (2018) ..........19, 21, 23

Answers in Genesis of Kentucky, Inc. v. Creation

Ministries Int’l, Ltd., 556 F.3d 459 (6th Cir.

2009)..................................................................... 13

Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104 (1991) ............................................... 4

Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398 (1964) ...................................................8, 10, 28

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519

(1839) ................................................................... 10

Bi v. Union Carbide Chems. & Plastics Co.,

984 F.2d 582 (2d Cir. 1993) ................................. 14

Bigio v. Coca-Cola Co., 448 F.3d 176 (2d Cir.

2006)..................................................................... 14

Canada Malting Co. v. Patterson S.S., Ltd.,

285 U.S. 413 (1932) ......................................... 3, 12

China Trade & Dev. Corp. v. M.V. Choong Yong,

837 F.2d 33 (2d Cir. 1987) ................................... 12

iii

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

(1821) ............................................................... 2, 15

Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) ............2, 13, 15

Cooper v. Tokyo Elec. Power Co., 860 F.3d 1193

(9th Cir. 2017).................................................19, 20

Cooper v. Tokyo Elec. Power Co., No. 12cv3032JLS (JLB), 2019 WL 1017266 (S.D. Cal.

Mar. 4, 2019), aff ’d, 960 F.3d 549 (9th Cir.

2020)..................................................................... 23

Cooper v. Tokyo Elec. Power Co. Holdings, Inc.,

960 F.3d 549 (9th Cir. 2020) ..........................14, 20

Cunard S.S. Co. v. Salen Reefer Servs. AB,

773 F.2d 452 (2d Cir. 1985) ................................. 13

Day & Zimmermann, Inc. v. Challoner, 423 U.S.

3 (1975) ................................................................ 11

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ..........8

EMA Garp Fund, L.P. v. Banro Corp., 783 F.

App’x 824 (2d Cir. 2019) ...................................... 13

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) ........................................10, 11

Fischer v. Magyar Allamvasutak Zrt., 777 F.3d

847 (7th Cir. 2015) ............................................... 25

GDG Acquisitions, LLC v. Government of

Belize, 749 F.3d 1024 (11th Cir. 2014).......4, 14, 23

Gross v. German Found. Indus. Initiative,

456 F.3d 363 (3d Cir. 2006) ................................. 14

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ......... 12

Hernandez v. Mesa, 140 S. Ct. 735 (2020) ............... 10

Hilton v. Guyot, 159 U.S. 113 (1895)...............3, 11, 12

iv

Imamura v. General Elec. Co., 957 F.3d 98

(1st Cir. 2020) ...................................................... 27

Jesner v. Arab Bank PLC, 138 S. Ct. 1386

(2018) ..............................................................16, 17

Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242

(4th Cir. 2011)...................................................... 27

Jota v. Texaco Inc., 157 F.3d 153 (2d Cir. 1998) ...... 14

JP Morgan Chase Bank v. Altos Hornos de

Mexico, S.A. de C.V., 412 F.3d 418 (2d Cir.

2005)..................................................................... 13

Kiobel v. Royal Dutch Petroleum Co., 569 U.S.

108 (2013) .................................................10, 16, 17

Landis v. North Am. Co., 299 U.S. 248 (1936).... 15-16

Lawson v. Klondex Mines Ltd., 450 F. Supp. 3d

1057 (D. Nev. 2020) ............................................. 23

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) .......................... 22

Lueck v. Sundstrand Corp., 236 F.3d 1137

(9th Cir. 2001)...................................................... 27

Maxwell Commc’n Corp., In re, 93 F.3d 1036

(2d Cir. 1996) ....................................................... 13

McCarthy v. Madigan, 503 U.S. 140 (1992)............. 26

Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir.

2014)...........................................................3, 14, 18,

20, 21, 23

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

Orleans, 491 U.S. 350 (1989) .........................15, 23

Oetjen v. Central Leather Co., 246 U.S. 297

(1918) ................................................................... 10

Opati v. Republic of Sudan, 140 S. Ct. 1601

(2020) ..................................................................... 9

v

Oveissi v. Islamic Republic of Iran, 573 F.3d 835

(D.C. Cir. 2009) .................................................... 28

Philadelphia Gear Corp. v. Philadelphia Gear

de Mexico, S.A., 44 F.3d 187 (3d Cir. 1994) ........ 13

Piper Aircraft Co. v. Reyno, 454 U.S. 235

(1981) .............................................................12, 19,

20, 21, 27

Quackenbush v. Allstate Ins. Co., 517 U.S. 706

(1996) ..........................................................4, 15, 16

Republic of Argentina v. NML Capital, Ltd.,

573 U.S. 134 (2014) ......................................6, 9, 26

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

(2004) ............................................................... 9, 19

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.

2090 (2016) .............................................4, 5, 10, 19

Royal & Sun All. Ins. Co. of Canada v. Century

Int’l Arms, Inc., 466 F.3d 88 (2d Cir. 2006) ........ 13

Ryanair DAC v. Expedia, Inc., No. C17-1789RSL,

2018 WL 3727599 (W.D. Wash. Aug. 6, 2018) ...... 23

Samantar v. Yousuf, 560 U.S. 305 (2010) ............ 4, 14

Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)

116 (1812) .......................................................... 3, 9

Société Nationale Industrielle Aérospatiale v.

U.S. Dist. Court, 482 U.S. 522 (1987) ............12, 21

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ....6, 16,

17, 26

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69

(2013) ..............................................................15, 22

Stoyas v. Toshiba Corp., 424 F. Supp. 3d 821

(C.D. Cal. 2020) ................................................... 23

vi

Susan B. Anthony List v. Driehaus, 573 U.S.

149 (2014) ............................................................ 22

Timberlane Lumber Co. v. Bank of Am., N.T. &

S.A., 549 F.2d 597 (9th Cir. 1976) ...................... 20

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d

1227 (11th Cir. 2004) ..............................3, 4, 14, 23

Updateme Inc. v. Axel Springer SE, No. 17-cv05054-SI, 2017 WL 5665669 (N.D. Cal. Nov.

27, 2017) ............................................................... 23

Veljkovic v. Carlson Hotels, Inc., 857 F.3d 754

(7th Cir. 2017)...................................................... 27

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400 (1990) ...2, 4, 5, 15,

18, 19, 21, 23

Younger v. Harris, 401 U.S. 37 (1971) ..................... 15

Zivotofsky v. Clinton, 566 U.S. 189 (2012) ............... 22

INTERNATIONAL CASES

Interhandel Case (Switz. v. U.S.), 1959 I.C.J. 6

(Mar. 21) .............................................................. 25

Jurisdictional Immunities of the State (Germ. v.

It.), 2012 I.C.J. 99 (Feb. 3) ................................... 8, 9

STATUTES AND RULES

Alien Tort Statute, 28 U.S.C. § 1350......4, 6, 16, 17, 26

Computer Fraud and Abuse Act of 1986,

Pub. L. No. 99-474, 100 Stat. 1213 ..................... 23

vii

Foreign Sovereign Immunities Act of 1976,

28 U.S.C. §§ 1330, 1441(d), 1602-1611 ........ passim

28 U.S.C. § 1606 .....................................5, 7, 22, 25

11 U.S.C. § 1521 ........................................................ 13

D.C. Code § 15-367(1) ..........................................26, 28

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

OTHER MATERIALS

Brief for Amicus Curiae the United States,

Simon v. Republic of Hungary, 911 F.3d

1172 (D.C. Cir. 2018) (No. 17-7146; filed

June 1, 2018) ....................................................... 24

Brief for the United States as Amicus Curiae,

W.S. Kirkpatrick & Co. v. Environmental

Tectonics Corp., Int’l, 493 U.S. 400 (1990)

(No. 87-2066; filed Oct. 5, 1989) .......................... 18

William S. Dodge:

International Comity in American Law,

115 Colum. L. Rev. 2071 (2015) ............................ 8

Presumptions Against Extraterritoriality in

State Law, 53 U.C. Davis L. Rev. 1389

(2020) ................................................................... 11

Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747 (1982) ............................ 21

viii

Maggie Gardner:

Abstention at the Border, 105 Va. L. Rev. 63

(2019) ..................................................................... 7

Parochial Procedure, 69 Stan. L. Rev. 941

(2017) ..............................................................20, 21

Restatement (Third) of the Foreign Relations

Law of the United States (Am. Law Inst.

1987)................................................................11, 20

Restatement (Fourth) of the Foreign Relations

Law of the United States (Am. Law Inst.

2018)................................................ 9, 11, 25, 26, 28

Uniform Foreign-Country Money Judgments

Recognition Act (2005) ........................................ 26

INTEREST OF AMICI CURIAE 1

Amici are law professors who have written extensively about doctrines of international comity, including the new doctrine of abstention that petitioners and

the United States urge this Court to adopt.

William S. Dodge is Martin Luther King, Jr. Professor of Law and John D. Ayer Chair in Business Law

at the University of California, Davis, School of Law.

He served from 2011 to 2012 as Counselor on International Law to the Legal Adviser at the U.S. Department of State and from 2012 to 2018 as a Reporter for

the Restatement (Fourth) of the Foreign Relations

Law of the United States (Am. Law Inst. 2018).2 His

writings include International Comity in American

Law, 115 Colum. L. Rev. 2071 (2015).

Maggie Gardner is Associate Professor of Law at

Cornell Law School. Her article Abstention at the

Border, 105 Va. L. Rev. 63 (2019), provided the first

comprehensive treatment of abstention based on international comity.

Amici draw on their expertise to explain several

key points: First, the doctrine of prudential comity

abstention urged by petitioners and the United States

is not well-established but was developed only recently

1 Pursuant to Supreme Court Rule 37.6, counsel for amici rep-

resent that they and amici authored this brief in its entirety and

that none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of this

brief. Pursuant to Rule 37.3(a), counsel for amici also represent

that all parties have consented to the filing of this brief.

2 Professor Dodge files this brief in his personal capacity, and

the views expressed here should not be taken to represent the

views of the Amercian Law Institute.

2

by the Ninth and Eleventh Circuits. Second, that discretionary doctrine, which is in tension with the limits

this Court has placed on other doctrines of restraint,

would necessarily apply to private parties if adopted

here, with unpredictable consequences. Third, this

Court need not take that leap in the dark because

existing doctrines already address comity concerns in

cases like these.

SUMMARY OF ARGUMENT

I. Chief Justice John Marshall observed nearly

two hundred years ago that federal courts “have no

more right to decline the exercise of jurisdiction which

is given, than to usurp that which is not given.”

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).

Since then, this Court has repeatedly emphasized “the

virtually unflagging obligation of the federal courts to

exercise the jurisdiction given them.” Colorado River

Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976); see also W.S. Kirkpatrick & Co. v.

Environmental Tectonics Corp., Int’l, 493 U.S. 400, 409

(1990) (“Courts in the United States have the power,

and ordinarily the obligation, to decide cases and

controversies properly presented to them.”). Although

there are limited exceptions to this fundamental

obligation, see Colorado River, 424 U.S. at 813-19,

petitioners’ prudential comity abstention doctrine is

not one of them.

A. Petitioners’ argument is based on the false

premise that prudential comity abstention has “a long

pedigree.” Hungary Br. 22; see also Germany Br. 3;

U.S. Hungary Br. 8. Many doctrines of international

comity do have a long history in American law, some

stretching back to the Founding. But no doctrine

allowing a federal court to decline jurisdiction based

3

on balancing U.S. interests, foreign government interests, and the adequacy of the foreign forum appeared

before 2004.

Hungary’s assertion (at 23) that abstention was

common in the early Republic rests on an article

written by other amici who discuss only a single case:

Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch)

116 (1812). Schooner Exchange is, of course, not

an abstention case but rather this Court’s seminal

decision on foreign sovereign immunity, a doctrine

now comprehensively codifed in the Foreign Sovereign

Immunities Act of 1976 (“FSIA”). Hungary and the

United States also invoke Canada Malting Co. v.

Patterson Steamships, Ltd., 285 U.S. 413 (1932). See

Hungary Br. 15; U.S. Hungary Br. 12-13. But, as

the United States acknowledges, Canada Malting is

a forum non conveniens case, not a prudential comity

abstention case. U.S. Hungary Br. 12 n.2.3

Once one disentangles the “multiple strands” of

international comity, id. at 11, it becomes clear that

the doctrine petitioners and the United States urge

this Court to adopt is very new. They rely primarily

on the Ninth Circuit’s decision in Mujica v. AirScan

Inc., 771 F.3d 580, 598 (9th Cir. 2014). See Germany

Br. 43; Hungary Br. 23, 28; U.S. Hungary Br. 14.

Mujica itself relied on a 2004 Eleventh Circuit decision, Ungaro-Benages v. Dresdner Bank AG, 379 F.3d

1227 (11th Cir. 2004), that the Eleventh Circuit has

3 Anticipating this objection, the United States points to

Hilton v. Guyot, 159 U.S. 113 (1895), to show that “adjudicatory

comity extends beyond forum non conveniens doctrine.” U.S.

Hungary Br. 12 n.2 (citing Hilton, 159 U.S. at 164). Hilton,

however, was a case about the enforcement of foreign judgments

and contains no discussion of abstention.

4

since cabined, see GDG Acquisitions, LLC v. Government of Belize, 749 F.3d 1024, 1030-31, 1034 (11th Cir.

2014). Amici know of no case adopting such a doctrine

before Ungaro-Benages in 2004. In contrast to forum

non conveniens, prudential comity abstention was not

part of the “ ‘background of common-law . . . principles’ ” when the FSIA was enacted in 1976. Samantar

v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (quoting

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.

104, 108 (1991)) (alteration in original).

B. This novel abstention doctrine is incompatible

with the limits this Court has imposed on abstention.

Petitioners do not explain how dismissing respondents’ state-law damages claims can be squared with

this Court’s instruction that “federal courts have the

power to dismiss or remand cases based on abstention

principles only where the relief being sought is

equitable or otherwise discretionary.” Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 731 (1996) (emphasis

added). Instead, petitioners invoke this Court’s decisions under the Alien Tort Statute (“ATS”), but those

cases deal not with abstention but rather with defining a federal-common-law cause of action. They signal

no retreat from the longstanding obligation of federal

courts to exercise the jurisdiction Congress has given

them.

Indeed, petitioners’ prudential comity abstention

doctrine would undermine limits this Court has carefully placed on other comity doctrines. In Kirkpatrick,

the United States similarly argued for an interpretation of the act-of-state doctrine that would turn on

the case-specific views of the State Department, 493

U.S. at 408, but this Court unanimously refused the

invitation to convert act of state into a “vague doctrine

of abstention,” id. at 406. In RJR Nabisco, Inc. v.

5

European Community, 136 S. Ct. 2090 (2016), the

European Community urged this Court to forgo the

presumption against extraterritoriality in deference

to its views of international comity, id. at 2107-08, but

this Court rejected “a case-by-case inquiry that turns

on or looks to the consent of the affected sovereign,”

id. at 2108. Petitioners’ proposed doctrine overlaps

significantly with forum non conveniens, but without

the limitations this Court has placed on that doctrine,

such as the requirement of an alternative foreign tribunal and the presumption in favor of the plaintiff ’s

choice of forum. Such warnings and limitations would

become irrelevant if district courts could dismiss cases

based on U.S. and foreign government interventions

and discretionary balancing.

C. Petitioners’ “vague doctrine of abstention,”

Kirkpatrick, 493 U.S. at 406, would have unpredictable and potentially far-reaching consequences because

prudential comity abstention could not be limited to

FSIA cases. The FSIA provides that a foreign state

that is not immune from jurisdiction “shall be liable in

the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C.

§ 1606.

As petitioners and the United States

acknowledge, any doctrine adopted here must be

equally available to private parties. See Germany

Br. 48; Hungary Br. 29; U.S. Hungary Br. 8. And,

as district court cases in the Ninth Circuit illustrate,

a wide range of private defendants can be expected

to invoke it. Because the doctrine is both new and

discretionary, it is difficult to predict what the consequences of adopting it nationally might be. This Court

should not open that Pandora’s box.

II. Petitioners initially litigated this question as

one of prudential exhaustion rather than abstention,

6

and it is not clear whether they have abandoned that

argument. See Hungary Br. 35; Germany Br. 53. But

no doctrine of exhaustion supports dismissal here. No

one disputes that the customary international-law

rule requiring exhaustion of local remedies applies

only to international proceedings, not to proceedings

in domestic courts. Nor does any exhaustion doctrine

in our domestic law apply to these cases. This Court

has recognized the possibility of an exhaustion requirement for cases brought under the ATS. See Sosa v.

Alvarez-Machain, 542 U.S. 692, 733 (2004). But this

Court’s authority to shape the ATS cause of action

includes the power to impose limitations there that

it does not have under the FSIA. See Republic of

Argentina v. NML Capital, Ltd., 573 U.S. 134, 141-42

(2014).

III. Rejecting prudential comity abstention will not

leave federal courts powerless to dismiss cases that

would be better heard abroad. Forum non conveniens,

which was part of the common-law background

against which the FSIA was enacted, permits dismissal when a foreign court or compensation mechanism

provides a more appropriate forum. In some cases, the

act-of-state doctrine may require U.S. courts to accept

the validity of a taking of property within a foreign

state’s territory, while choice-of-law rules typically

will direct application of foreign law to claims that

arise abroad. When a foreign proceeding produces

a judgment, res judicata will prevent relitigation in

the United States. American law already contains

doctrines of international comity to handle cases like

these. This Court need not manufacture a new one.

7

ARGUMENT

I. THIS COURT SHOULD NOT RECOGNIZE

THE NEW ABSTENTION DOCTRINE URGED

BY PETITIONERS

Amici agree with petitioners and the United States

that, by virtue of 28 U.S.C. § 1606, foreign states that

are not immune under the FSIA may invoke the same

—and only the same—defenses in U.S. courts as private parties. See Hungary Br. 29; Germany Br. 47-48;

U.S. Hungary Br. 8. But the abstention doctrine they

invoke is not available to private parties outside of

two circuits. Nor should it be. Recognizing abstention

based on a district court’s assessment of the risk of

“international friction,” Hungary Br. 23; Germany Br.

41, would undermine the limits this Court has placed

on other doctrines of restraint. See Maggie Gardner,

Abstention at the Border, 105 Va. L. Rev. 63 (2019)

(documenting novelty of prudential comity abstention

and its conflict with separation-of-powers principles).

Precisely because any new abstention doctrine recognized in these cases would have to apply equally to

private parties—with unpredictable consequences—

this Court should refuse to adopt it.

A. Prudential Comity Abstention Is Novel

Petitioners assert that their prudential comity abstention doctrine has “a long pedigree” that “predates

the FSIA’s enactment in 1976.” Hungary Br. 21-22;

see also Germany Br. 3; U.S. Hungary Br. 8. But they

can cite no cases to establish that pedigree. The cases

they cite that predate 2004 (and most that post-date

2004) address other comity-based doctrines.

The confusion stems in part from misleading

references to “[t]he international-comity doctrine,”

Hungary Br. 1, “comity-based abstention,” Germany

Br. 49, or “the doctrine of international comity,” U.S.

8

Hungary Br. 8. International comity is not a doctrine,

but a principle of deference to foreign states that

informs a range of different doctrines. See William

S. Dodge, International Comity in American Law, 115

Colum. L. Rev. 2071, 2099-2119 (2015) (reviewing doctrines). Comity doctrines fall into three categories:

those that defer to foreign governments as litigants

(“sovereign party comity”), those that defer to foreign

lawmakers (“prescriptive comity”), and those that

defer to foreign courts (“adjudicative comity”). Id. at

2078-79. Within each of these categories, positive

comity doctrines use comity as a principle of recognition, while negative comity doctrines use comity as

a principle of restraint. See id. Almost all the cases

petitioners and other amici cite to support their novel

prudential comity abstention doctrine in fact address

one of these other, more established comity doctrines.

Once the doctrines are disentangled, it is clear that

the only precedents on which petitioners can rely

are recent Ninth Circuit decisions and one Eleventh

Circuit decision that has since been cabined.

Sovereign Party Comity. As a principle of recognition, U.S. courts allow foreign governments to appear

as plaintiffs. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-09 (1964) (“Under principles

of comity . . . , sovereign states are allowed to sue in

the courts of the United States.”). As a principle of

restraint, U.S. courts give foreign states and government officials some immunity from suit. See, e.g., Dole

Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)

(“[f ]oreign sovereign immunity” is “a gesture of comity

between the United States and other sovereigns”).4

4 Amici Foreign Scholars correctly note that international law

requires sovereign immunity in some cases. See Foreign Int’l

Law Scholars Br. 7; see, e.g., Jurisdictional Immunities of the

9

This Court first recognized foreign sovereign

immunity as a matter of comity in Schooner Exchange

v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). Contrary

to the representations of some amici, see Estreicher &

Lee Br. 7, Schooner Exchange did not establish a

broad abstention doctrine, see Opati v. Republic of

Sudan, 140 S. Ct. 1601, 1605 (2020) (discussing

Schooner Exchange and subsequent development of

foreign sovereign immunity in the United States). In

1976, Congress established a “ ‘comprehensive framework’ ” governing foreign-state immunity that leaves

no room for further common-law development by

federal courts. Republic of Argentina v. NML Capital,

Ltd., 573 U.S. 134, 141 (2014) (quoting Republic of

Austria v. Altmann, 541 U.S. 677, 699 (2004)).

Petitioners argue that U.S. courts should not judge

“the propriety of [a nation’s] actions within its own

borders toward its own nationals.” Germany Br. 50.

That concern is addressed through the law of sovereign immunity and is raised by the first question

State (Germ. v. It.), 2012 I.C.J. 99, 135 (Feb. 3) (holding that states

are immune from suit for torts by armed forces during armed

conflict). When states grant more immunity than international

law requires, they do so as a matter of international comity. See

Restatement (Fourth) of the Foreign Relations Law of the United

States, pt. IV, ch. 1, intro. note (Am. Law Inst. 2018) (“International comity . . . is deference to foreign states that is not required

by international law.”). Contrary to Foreign Scholars’ assertion

(at 8-9), customary international law does not presume that states

are immune unless state practice has established an exception.

Rather, the International Court of Justice has required state

practice establishing immunity with respect to the specific activity for which immunity is claimed. See Jurisdictional Immunities, 2012 I.C.J. at 127-35 (examining state practice with respect

to armed forces during armed conflict). The U.N. Convention on

which Foreign Scholars principally rely has not entered into force

or been ratified by the United States. See Restatement (Fourth)

§ 451 reporters’ note 1 (discussing status of U.N. Convention).

10

presented in Germany v. Philipp, a statutory question

on which amici take no position. Concern about reciprocal denial of immunity for the United States may

inform the interpretation of the FSIA—or its amendment. It does not justify creating a new abstention

doctrine.

Prescriptive Comity. As a principle of recognition,

U.S. courts give effect to foreign law through choiceof-law rules, see, e.g., Bank of Augusta v. Earle, 38

U.S. (13 Pet.) 519, 589 (1839) (“the laws of the one

[country], will, by the comity of nations, be recognized

and executed in another”), and the act-of-state doctrine,

see, e.g., Oetjen v. Central Leather Co., 246 U.S. 297,

303-04 (1918) (noting that the act-of-state doctrine

“rests at last upon the highest considerations of international comity and expediency”).5 As a principle of

restraint, this Court has adopted rules of statutory

interpretation—such as the presumption against

extraterritoriality and reasonableness in interpretation—limiting the reach of federal statutes. See RJR

Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100

(2016) (presumption against extraterritoriality “serves

to avoid . . . international discord”); F. Hoffmann-La

Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004)

(basing reasonableness on “principles of prescriptive

comity”).6

5 Germany invokes (at 42) Oetjen to support a broader absen-

tion doctrine, but Oetjen is clearly an act-of-state case. See Sabbatino, 398 U.S. at 416-17 (describing Oetjen as “reaffirm[ing] in

unequivocal terms” the act-of-state doctrine).

6 This Court has also invoked prescriptive comity concerns

underlying the presumption against extraterritoriality to limit

implied federal causes of action. See Hernandez v. Mesa, 140 S.

Ct. 735, 747-48 (2020) (Bivens cause of action); Kiobel v. Royal

Dutch Petroleum Co., 569 U.S. 108, 116-17 (2013) (ATS cause of

action). Respondents have brought only state-law claims.

11

In its opening brief (at 46-51), Hungary raises various prescriptive comity arguments, apparently for the

first time. Hungary invokes the presumption against

extraterritoriality and Empagran’s principle of reasonableness.7 These doctrines are principles of federal

statutory interpretation that have no application to

state-common-law claims like those brought by respondents. See Restatement (Fourth) § 404 reporters’ note

5 (noting that “the geographic scope of State statutes

is a question of State law”).8

The answer to Hungary’s concern about applying

state common law to events in Hungary lies in state

choice-of-law rules. See, e.g., Day & Zimmermann,

Inc. v. Challoner, 423 U.S. 3, 4-5 (1975) (per curiam)

(directing federal court to apply Texas conflicts rules

pointing to Cambodian law). The choice-of-law question in these cases, however, has not yet been briefed

and argued below.9

Adjudicative Comity. As a principle of recognition,

U.S. courts recognize and enforce foreign-court judgments. See, e.g., Hilton v. Guyot, 159 U.S. 113, 163

7 Hungary also quotes Section 403 of the Restatement (Third)

of the Foreign Relations Law of the United States (Am. Law

Inst. 1987) without noting that Section 403 has been superseded

by Section 405 of the Restatement (Fourth), which adopts a

narrower principle of reasonableness based on Empagran. See

Restatement (Fourth) § 405 cmt. a.

8 Although some states have their own presumptions against

extraterritoriality, no state applies such a presumption to its

common law. See William S. Dodge, Presumptions Against

Extraterritoriality in State Law, 53 U.C. Davis L. Rev. 1389,

1411-13 (2020).

9 In extreme cases, state law also may be subject to foreignaffairs preemption. See American Ins. Ass’n v. Garamendi, 539

U.S. 396, 416-20 (2003). Although Hungary cites (at 49) Garamendi, it made no foreign-affairs preemption argument below.

12

(1895) (noting that recognition of foreign judgments

depends on “the comity of nations”). Because Hilton

provides an early pronouncement by this Court about

the importance of comity, it is often mistakenly invoked

to support the extension of other comity-based doctrines.

True to form, petitioners quote it here. See Hungary

Br. 21-22; Germany Br. 42. But Hilton’s discussion of

comity addressed the recognition of foreign judgments,

not abstention.

As a principle of restraint, U.S. courts limit the

exercise of their own jurisdiction through the doctrine

of forum non conveniens. See American Dredging Co.

v. Miller, 510 U.S. 443, 467 (1994) (Kennedy, J., dissenting) (noting that “the forum non conveniens

defense promotes comity”). They also limit discovery

requests for evidence located abroad, see Société

Nationale Industrielle Aérospatiale v. U.S. Dist. Court,

482 U.S. 522, 543-44 (1987) (noting that “international comity” requires “particularized analysis” of

discovery requests), and the use of antisuit injunctions, see China Trade & Dev. Corp. v. M.V. Choong

Yong, 837 F.2d 33, 37 (2d Cir. 1987) (noting “the

retraint and caution required by international comity”

when considering an antisuit injunction).

Hungary (at 30, 34) and the United States (at 12-13)

rely heavily on Canada Malting Co. v. Patterson

Steamships, Ltd., 285 U.S. 413 (1932), to support their

broad abstention doctrine. But, as this Court has

repeatedly noted, Canada Malting is a forum non

conveniens case. See American Dredging, 510 U.S.

at 449-50; Piper Aircraft Co. v. Reyno, 454 U.S. 235,

247-49 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501,

504 (1947); see also U.S. Hungary Br. 12 n.2 (noting

that Canada Malting is a “precursor[ ]” of forum non

conveniens).

13

A number of circuits have recognized a different

doctrine of comity-based abstention solely as a tool

for deferring to parallel litigation abroad. For these

circuits, “international comity abstention” is an extension of Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976), that permits district courts to dismiss in favor of a pending and parallel foreign proceeding upon a showing of exceptional

circumstances. See Answers in Genesis of Kentucky,

Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459,

467-69 (6th Cir. 2009); Royal & Sun All. Ins. Co. of

Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 92-97

(2d Cir. 2006); AAR Int’l, Inc. v. Nimelias Enters. S.A.,

250 F.3d 510, 517-23 (7th Cir. 2001); Al-Abood v.

El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000); Philadelphia Gear Corp. v. Philadelphia Gear de Mexico,

S.A., 44 F.3d 187, 191-94 (3d Cir. 1994). The cases

currently before this Court present no opportunity to

decide whether and how Colorado River abstention

extends to foreign litigation because in neither Philipp

nor Simon is there a parallel proceeding pending

abroad.10

10 Hungary and the United States also cite a number of bankruptcy cases that defer to pending foreign proceedings. See EMA

Garp Fund, L.P. v. Banro Corp., 783 F. App’x 82, 84 (2d Cir.

2019); JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de

C.V., 412 F.3d 418, 424 (2d Cir. 2005); In re Maxwell Commc’n

Corp., 93 F.3d 1036, 1046-53 (2d Cir. 1996). Bankruptcy is a

special situation where U.S. courts long have recognized the need

for deference to foreign proceedings to ensure “the equality of

distribution of assets among creditors.” Cunard S.S. Co. v. Salen

Reefer Servs. AB, 773 F.2d 452, 459 (2d Cir. 1985). In 2005,

Congress added Chapter 15 to the Bankruptcy Code, which

expressly authorizes stays and other relief upon recognition of

foreign bankruptcy proceedings. See 11 U.S.C. § 1521. Congress

has not authorized deference to parallel foreign proceedings more

generally.

14

In only three decisions—Mujica v. AirScan Inc., 771

F.3d 580 (9th Cir. 2014); Ungaro-Benages v. Dresdner

Bank AG, 379 F.3d 1227 (11th Cir. 2004); and Cooper

v. Tokyo Electric Power Co. Holdings, Inc., 960 F.3d

549 (9th Cir. 2020) (“Cooper II ”)—have courts of

appeals dismissed lawsuits based on the doctrine

of prudential comity abstention urged here. The

Eleventh Circuit has since emphasized how “rare”

such abstention should be, GDG Acquisitions, LLC v.

Government of Belize, 749 F.3d 1024, 1034 (11th Cir.

2014), while other circuits have rejected petitioners’

proposed abstention doctrine, see, e.g., Gross v. German

Found. Indus. Initiative, 456 F.3d 363, 393-94 (3d Cir.

2006).11

While it is true that Congress passed the FSIA

against the background of the common law, see

Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010),

prudential comity abstention was not part of that

background. Amici know of no cases predating the

FSIA’s enactment in 1976 that even acknowledged,

much less applied, the abstention doctrine that petitioners and the United States urge this Court to adopt.

B. Prudential Comity Abstention Would

Undermine This Court’s Efforts To Limit

Doctrines of Restraint

Petitioners ignore the limits this Court has placed

on prudential doctrines, particularly those related to

foreign affairs. Indeed, they and other amici propose

the vaguest of tests, like those this Court has

11 The two times the Second Circuit has considered prudential

comity abstention, it has declined to apply it. See Jota v. Texaco

Inc., 157 F.3d 153, 159-61 (2d Cir. 1998); Bigio v. Coca-Cola Co.,

448 F.3d 176, 178-80 (2d Cir. 2006); see also Bi v. Union Carbide

Chems. & Plastics Co., 984 F.2d 582, 584-86 (2d Cir. 1993) (dismissing for lack of standing without discussing abstention).

15

expressly warned against in similar contexts. Such

broad-ranging discretion to decline jurisdiction based

on international friction would undermine “the undisputed constitutional principle that Congress, and

not the Judiciary, defines the scope of federal jurisdiction.” New Orleans Pub. Serv., Inc. v. Council of New

Orleans, 491 U.S. 350, 359 (1989) (“NOPSI ”).

1. Petitioners’ proposed abstention doctrine

would extend to non-discretionary relief

As this Court recently and unanimously reaffirmed,

“[i]n the main, federal courts are obliged to decide

cases within the scope of federal jurisdiction.” Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013); see

also W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990); Colorado

River, 424 U.S. at 817; Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 404 (1821). This Court has recognized

limited exceptions that permit federal district courts

to stay actions in favor of other federal or state courts

or to dismiss them where the requested relief is equitable or discretionary. See, e.g., Colorado River, 424

U.S. at 813-19 (describing abstention doctrines). Those

exceptions, however, are carefully circumscribed. See,

e.g., Sprint, 571 U.S. at 81-82 (demarcating the “exceptional circumstances” justifying abstention under

Younger v. Harris, 401 U.S. 37 (1971)).

Most significantly, “federal courts have the power to

dismiss or remand cases based on abstention principles only where the relief being sought is equitable or

otherwise discretionary.” Quackenbush v. Allstate

Ins. Co., 517 U.S. 706, 731 (1996).12 Petitioners do not

12 Quackenbush acknowledged that federal courts have

authority to stay proceedings in favor of state courts. 517 U.S. at

721. Federal courts also may stay proceedings in favor of other

federal courts. See Landis v. North Am. Co., 299 U.S. 248, 254

16

explain how dismissing respondents’ damages claims

pursuant to prudential comity abstention can be

squared with Quackenbush’s directive. Quackenbush

turned on Congress’s authority to define the jurisdiction of the federal courts, a rationale that does not

depend on whether the alternative forum is a state

court or a foreign court. Indeed, declining jurisdiction

in favor of foreign courts presents greater concerns

because it excludes cases covered by congressional

grants of jurisdiction from any U.S. court. Quackenbush acknowledged that international cases could be

dismissed for forum non conveniens, but only because

of that doctrine’s “distinct historical pedigree.” Id.

at 721-23. Prudential comity abstention has no such

pedigree.

Petitioners also invoke this Court’s decisions in ATS

cases as support for abstention. See Hungary Br. 1 n.1

(citing Jesner v. Arab Bank PLC, 138 S. Ct. 1386

(2018); Kiobel v. Royal Dutch Petroleum Co., 569 U.S.

108 (2013); and Sosa v. Alvarez-Machain, 542 U.S. 692

(2004)); Germany Br. 44 (same). Those ATS decisions

do not create a broad absention doctrine for cases

raising foreign-relations concerns. The “discretion” to

which Sosa referred was the discretion to shape the

ATS cause of action as federal common law. Sosa, 542

U.S. at 725. This Court has exercised that discretion

by limiting the ATS cause of action to internationallaw norms that are definite and well-accepted, see

id. at 732, by requiring that ATS claims “touch and

concern” the United States, Kiobel, 569 U.S. at 124-25,

and by excluding foreign corporations from the scope

of the ATS cause of action, see Jesner, 138 S. Ct. at

1403.

(1936). Whether similar discretion should extend to foreign courts

is not raised here because petitioners have sought dismissals

rather than stays.

17

This Court has also suggested that it would consider

other “limiting” principles in ATS cases. Sosa, 542

U.S. at 733 n.21. In Sosa, the Court said it would

“consider [an exhaustion] requirement in an appropriate case.” Id. (emphasis added). Sosa also noted a

“possible limitation” of “case-specific deference to the

political branches.” Id. (emphasis added). But this

Court has not adopted either suggestion even for ATS

cases, much less as a doctrine generally applicable

outside the context of the ATS.

Some members of this Court have referred to these

possibilities, in addition to existing doctrines, to argue

that comity concerns may be met without limiting the

ATS cause of action. See, e.g., Jesner, 138 S. Ct. at

1430-31 (Sotomayor, J., dissenting) (“Courts also can

dismiss ATS suits for a plaintiff ’s failure to exhaust

the remedies available in her domestic forum, on forum

non conveniens grounds, for reasons of international

comity, or when asked to do so by the State Department.”); Kiobel, 569 U.S. at 133 (Breyer, J., concurring

in the judgment) (similar). Petitioners and the United

States point to these statements to argue that prudential comity abstention is well-established. See Hungary Br. 27; Germany Br. 45; U.S. Hungary Br. 15.

Certainly, forum non conveniens is well-established.

But exhaustion and case-specific deference can only

have been referred to as possibilities for future consideration because, as noted, this Court has not yet adopted

them. The same is true of references to comity; this

Court has not adopted a doctrine of prudential comity

abstention in ATS cases or in any other context.

This Court’s ATS decisions are not about abstaining

from deciding claims for damages. They are about

whether a claim for damages should be permitted

under federal common law in the first place. Those

18

decisions signal no retreat from the longstanding

obligation of federal courts to exercise the jurisdiction

that they have been given.

2. Prudential comity abstention undermines the limits this Court has placed

on other doctrines

Because prudential comity abstention is so vague

and discretionary, it threatens to swallow up the more

narrowly tailored doctrines this Court has developed.

Petitioners and the United States propose a standard,

adopted by the Ninth Circuit, that would weigh the

strength of U.S. interests, the strength of foreign

interests, and the adequacy of the alternative forum.

See U.S. Hungary Br. 14 (urging adoption of Mujica’s

test); Hungary Br. 35-46 (discussing same three

factors); Germany Br. 43 (citing Mujica). That test

repackages the foreign “embarrassment” arguments

this Court has rejected as excuses for abdicating

judicial responsibility.

In Kirkpatrick, the United States argued for a similarly discretionary interpretation of the act-of-state

doctrine. It urged this Court to recognize that a future

case might “ ‘sufficiently touch on “national nerves”

that the act-of-state doctrine or related principles of

abstention would appropriately be found to bar the

suit,’ ” and it asked the Court to resolve the case based

on the State Department’s views. 493 U.S. at 408

(quoting Brief for the United States as Amicus Curiae

40, No. 87-2066 (U.S. filed Oct. 5, 1989)). Writing for

a unanimous court, Justice Scalia refused to convert

the act-of-state doctrine into a “vague doctrine of

abstention.” Id. at 406. “The act of state doctrine does

not establish an exception for cases and controversies

that may embarrass foreign governments,” he wrote,

“but merely requires that, in the process of deciding,

19

the acts of foreign sovereigns taken within their own

jurisdictions shall be deemed valid.” Id. at 409.13

In RJR Nabisco, the European Community urged

this Court to defer to its views on international comity

and to forgo the presumption against extraterritoriality in suits by foreign governments. 136 S. Ct. at 210708. This Court declined that invitation as well, rejecting “a case-by-case inquiry that turns on or looks to

the consent of the affected sovereign.” Id. at 2108. Cf.

Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co.,

138 S. Ct. 1865 (2018) (holding that federal courts are

not bound to defer to a foreign government’s construction of its own law).

Meanwhile, the third factor in petitioners’ proposed

test overlaps with forum non conveniens, see Cooper v.

Tokyo Elec. Power Co., 860 F.3d 1193, 1210 (9th Cir.

2017) (“Cooper I ”) (acknowledging that the two inquiries are “the same”), but without the limitations this

Court has placed on that doctrine. Forum non conveniens makes the availability of an adequate alternative

forum a precondition, rather than merely a factor to

be weighed. Compare Piper, 454 U.S. at 254-55 &

n.22, with Cooper I, 860 F.3d at 1205, 1208-10. Forum

non conveniens also starts with a “strong presumption

in favor of the plaintiff ’s choice of forum,” although the

presumption may be weaker for foreign plaintiffs. See

13 This Court previously suggested that it might defer to the

views of the State Department on the foreign-policy consequences

of particular FSIA cases. See Altmann, 541 U.S. at 701-02;

see also U.S. Hungary Br. 19 (noting that Altmann “did not

decisively resolve the deference question”). Case-specific deference to the executive branch “raises serious separation-of-powers

concerns.” Altmann, 541 U.S. at 734 (Kennedy, J., dissenting).

But Altmann deference limited to FSIA cases would still be a

narrower ground for resolving these cases than a new abstention

doctrine that applies to FSIA and non-FSIA cases alike.

20

Piper, 454 U.S. at 255-56 & n.23. Prudential comity

abstention gives no deference to the plaintiff ’s choice

of forum—even if the plaintiff is a U.S. citizen.

Compare Cooper I, 860 F.3d at 1211 (affirming rejection of forum non conveniens because “Plaintiffs are

U.S. citizens, and their decision to sue in the United

States must be respected”), with Cooper II, 960 F.3d

at 566-69 (affirming dismissal of same claims based on

prudential comity abstention without presumption in

favor of U.S. servicemembers’ choice of U.S. forum).

The tripartite test urged by the United States not

only undermines the limits this Court has placed on

other doctrines, but also fails to provide meaningful

guidance for the exercise of discretion. Even the Ninth

Circuit in Mujica acknowledged a lack of “substantive

standards for assessing [these] three factors.” 771

F.3d at 603. It therefore articulated a nonexclusive

list of 13 subfactors, variously drawn from Timberlane

Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d

597 (9th Cir. 1976), Section 403 of the Restatement

(Third), and cases involving the enforcement of foreign

judgments. See Mujica, 771 F.3d at 604-08. But

multiplying vague factors only amplifies the problem.

See Maggie Gardner, Parochial Procedure, 69 Stan. L.

Rev. 941, 961-67 (2017) (describing problems arising

from complex tests). Notably, no one here recommends

adopting Mujica’s 13 factors. Other amici propose

alternative tests, but they suffer from the same

vagueness as the tripartite standard.14 The danger

14 Amici Professors Estreicher and Lee criticize “the free-form,

multivariate balancing test that lower courts are currently

using,” Estreicher & Lee Br. 7, but their proposed test would fare

no better. It invokes “applicable U.S. statutes or treaties” (which

if applicable would displace any need for prudential comity

abstention); “whether parallel proceedings have been commenced

or concluded” (which are not at issue in cases like these); “the

21

of such vagueness would be compounded by abuse-ofdiscretion review on appeal. See Mujica, 771 F.3d at

589 (reviewing for abuse of discretion); see also Henry

J. Friendly, Indiscretion About Discretion, 31 Emory

L.J. 747, 754-55 (1982) (critiquing abuse-of-discretion

review as applied to discretionary doctrines like forum

non conveniens).

Prudential comity abstention threatens to become

the doctrine that swallows the rest. Courts will no

longer have to defer to a plaintiff ’s choice of forum

under forum non conveniens, see Piper, 454 U.S. at

255-56, or to ask whether a case implicates the

validity of a foreign sovereign’s official act under the

act-of-state doctrine, see Kirkpatrick, 493 U.S. at 409.

Instead, courts will simply be able to dismiss such

cases by invoking this “vague doctrine of abstention.”

Id. at 406.15

This Court has consistently rejected arguments

in recent Terms to decline jurisdiction on various

reciprocal practice of any nation directly implicated” (a reciprocity requirement now rejected in the enforcement of judgments

context from which it derived); and “the well-considered views of

the Executive branch” (which is identical to the vague tripartite

standard they criticize). Id. at 21.

The United States alludes to another vague tripartite standard

that has failed to provide meaningful guidance for international

discovery. See U.S. Hungary Br. 13-14 (citing Aérospatiale, 482

U.S. at 543-44); Gardner, Parochial Procedure, 69 Stan. L. Rev.

at 973-78 (describing lower-court struggles with Aérospatiale’s

standard).

15 Prudential comity abstention might also have mooted this

Court’s recent decision in Animal Science Products. There, the

Court unanimously held that federal courts are not bound to

defer to a foreign government’s interpretation of its own law.

138 S. Ct. at 1869. But the lower court could have avoided the

foreign-law question entirely, simply by abstaining based on an

objection from the Chinese government.

22

prudential grounds. See Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 167 (2014) (rejecting prudential ripeness argument); Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 125-28

(2014) (rejecting prudential standing argument);

Sprint Commc’ns, 571 U.S. at 78 (rejecting extension

of Younger abstention); Zivotofsky v. Clinton, 566 U.S.

189, 194-95 (2012) (rejecting broad interpretation of

political-question doctrine). It should do so again

here.

C. Any Doctrine of Prudential Comity Abstention Could Not Be Limited to Cases Involving Foreign Sovereigns

If this Court were to recognize some form of prudential comity abstention, it could not limit that doctrine

to sovereign defendants like Germany and Hungary.

The FSIA provides that foreign states that are not

entitled to immunity “shall be liable in the same

manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. § 1606. Because

prudential comity abstention is not grounded in the

text of the FSIA, it must exist—if at all—as a doctrine

equally available to sovereign defendants and private

parties. Indeed, petitioners and the United States

argue that prudential comity abstention is available

to foreign states under the FSIA precisely because

they believe it is already available to private parties.

See Hungary Br. 29; Germany Br. 48; U.S. Hungary

Br. 8. Although amici have explained that this

premise is incorrect, the doctrine would apply to

private parties if the Court were to accept petitioners’

invitation to adopt it here. That expansion of judicial

discretion could have far-reaching and unpredictable

consequences for the power of the federal courts vis-àvis Congress.

23

Allegations of foreign-relations concerns can and

do arise frequently in private disputes. Cases like

Kirkpatrick and Animal Science Products illustrate

how private defendants can readily invoke foreign

sensitivities or leverage foreign-state intervention.

Since the Ninth Circuit decided Mujica in 2014,

private defendants have repeatedly raised prudential

comity abstention arguments in district courts.16

Indeed, concerned that the doctrine was becoming “a

forum-selection tool . . . in common breach of contract

actions,” the Eleventh Circuit has cautioned that

Ungaro-Benages was sui generis. GDG Acquisitions,

749 F.3d at 1030-31, 1034. There is also a risk that

courts will accept the invitation to decline their jurisdiction too readily, despite “the undisputed constitutional principle that Congress, and not the Judiciary,

defines the scope of federal jurisdiction.” NOPSI, 491

U.S. at 359. But ultimately it is imposible to predict

the full consequences of adopting this doctrine because

it is so new and currently used in just two circuits.

The Court need not, and should not, run that national

experiment.

16 See, e.g., Lawson v. Klondex Mines Ltd., 450 F. Supp. 3d 1057

(D. Nev. 2020) (shareholder derivative suit against Canadian

mining corporation with principal place of business in Nevada);

Stoyas v. Toshiba Corp., 424 F. Supp. 3d 821 (C.D. Cal. 2020)

(securities class action against Japanese corporation); Cooper

v. Tokyo Elec. Power Co., No. 12cv3032-JLS (JLB), 2019 WL

1017266 (S.D. Cal. Mar. 4, 2019) (tort suit against Japanese

utility company), aff ’d, 960 F.3d 549 (9th Cir. 2020); Ryanair

DAC v. Expedia, Inc., No. C17-1789RSL, 2018 WL 3727599 (W.D.

Wash. Aug. 6, 2018) (Computer Fraud and Abuse Act claims

against U.S. corporation); Updateme Inc. v. Axel Springer SE,

No. 17-cv-05054-SI, 2017 WL 5665669 (N.D. Cal. Nov. 27, 2017)

(trademark-infringement and breach-of-contract claims against

German companies).

24

II. EXHAUSTION DOES NOT PROVIDE AN

ALTERNATIVE GROUND FOR DISMISSAL

In the lower courts, petitioners argued for dismissal

on grounds of prudential exhaustion, not abstention.

See 18-1447 Pet. App. 50a (Simon) (dismissing under

“prudential exhaustion doctrine” and forum non

conveniens); 19-351 Pet. App. 83 (Philipp) (rejecting

“prudential exhaustion requirement”). It was not

until the D.C. Circuit panel in Simon requested the

views of the United States that prudential comity

abstention was introduced into these cases. See Brief

for Amicus Curiae the United States 14-21, Simon v.

Republic of Hungary, 911 F.3d 1172 (D.C. Cir. 2018)

(No. 17-7146; filed June 1, 2018) (first raising abstention). The D.C. Circuit rejected the U.S. abstention

argument along with petitioners’ exhaustion argument.

See 19-351 Pet. App. 16-21 (Philipp); see also 18-1447

Pet. App. 13a-16a (Simon) (rejecting exhaustion

argument without discussing abstention). Hungary

did not embrace prudential comity abstention until its

petition for rehearing en banc, and Germany did not

do so until its petition for certiorari.

It is not clear whether petitioners have abandoned

their exhaustion arguments. See Hungary Br. 35

(arguing that “U.S. courts should not exercise jurisdiction over this dispute” because “Plaintiffs failed to

exhaust available remedies in Hungary”); Germany

Br. 53 (“Respondents’ failure to exhaust available

remedies in Germany also supports abstention here.”).

But no exhaustion requirement provides an alternative ground for dismissing respondents’ claims,

either as a matter of international law or as a prudential doctrine of domestic law.

In dismissing similar claims based on “a prudential

exhaustion requirement,” the Seventh Circuit asserted

25

that international law requires exhaustion of local

remedies before expropriation claims may be heard

in the domestic courts of another state. Fischer v.

Magyar Allamvasutak Zrt., 777 F.3d 847, 858-59 (7th

Cir. 2015). Customary international law contains no

such requirement. As the Restatement (Fourth) of

Foreign Relations Law explains, “under customary

international law, and subject to modification by

treaty, the exhaustion of local remedies is a precondition only to espousal of a claim by the injured party’s

government or the filing of a claim in an international

tribunal.” Restatement (Fourth) § 424 reporters’ note

10; see also Interhandel Case (Switz. v. U.S.), 1959

I.C.J. 6, 27 (Mar. 21) (“[t]he rule that local remedies

must be exhausted before international proceedings

may be instituted is a well-established rule of customary international law”) (emphasis added). On this point,

the amicus brief joined by three former State Department Legal Advisers agrees. See Robinson et al. Br.

12-13.

In contrast to defendants in the Seventh Circuit,

petitioners argued in the D.C. Circuit for a doctrine of

prudential exhaustion under U.S. domestic law, which

the D.C. Circuit correctly rejected. See 18-1447 Pet.

App. 13a-16a (Simon); see also 19-351 Pet. App. 16-21

(Philipp). Prudential exhaustion does not provide a

ground for dismissing claims against foreign states

under the FSIA because there is no general prudential

exhaustion requirement applicable to suits against

private parties. See 28 U.S.C. § 1606. The limited

exhaustion doctrines this Court has recognized do not

apply to respondents’ claims.

This Court has recognized a “doctrine of exhaustion

of administrative remedies” as a matter of judicial

discretion even when exhaustion is not mandated by

26

Congress. McCarthy v. Madigan, 503 U.S. 140, 144

(1992). Administrative exhaustion is grounded in

deference to Congress’s delegation of authority to

administrative agencies, id. at 145, a justification that

does not extend to foreign governments. Nor would

requiring exhaustion of foreign remedies serve the

purpose of “produc[ing] a useful record for subsequent

judicial consideration.” Id. To the contrary, such a

requirement would likely preclude subsequent consideration by federal courts because of the doctrine of

res judicata. See 18-1447 Pet. App. 14a (Simon). The

recognition of foreign judgments in the United States

is generally governed by state law. See Restatement

(Fourth) § 481 cmt. a. Like many states, the District

of Columbia has adopted the 2005 Uniform ForeignCountry Money Judgments Recognition Act, under

which a foreign judgment entitled to recognition is

“[c]onclusive between the parties to the same extent

as the judgment of a sister state entitled to full faith

and credit.” D.C. Code § 15-367(1).

For suits under the ATS, this Court has said it

would “consider [an exhaustion] requirement in an

appropriate case.” Sosa, 542 U.S. at 733 n.21. In that

context, an exhaustion requirement might rest on the

federal courts’ authority, discussed above, to shape

the federal-common-law cause of action. But this

Court has made clear that federal courts have no

similar authority to limit claims under the FSIA.

See NML Capital, 573 U.S. at 141-42. Because no

domestic doctrine requiring exhaustion of foreign

remedies is available to private parties (with the

possible exception of ATS claims), no such doctrine is

available to foreign states under the FSIA.

27

III. EXISTING DOCTRINES OF INTERNATIONAL COMITY ADDRESS PETITIONERS’ CONCERNS

Rejecting a doctrine of prudential comity abstention

in these cases will not leave federal courts powerless

to dismiss claims that would be better heard abroad.

U.S. courts already have the authority to defer to

foreign courts and compensation mechanisms under

forum non conveniens. See Piper, 454 U.S. at 254 n.22.

Nothing in this Court’s decisions suggests that the

alterative forum must be judicial, and lower courts

repeatedly have held that Piper’s threshold requirement of an alternative forum may be met by an

administrative scheme. See Imamura v. General Elec.

Co., 957 F.3d 98, 110-12 (1st Cir. 2020); Veljkovic v.

Carlson Hotels, Inc., 857 F.3d 754, 756 (7th Cir. 2017);

Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 250-51

(4th Cir. 2011); Lueck v. Sundstrand Corp., 236 F.3d

1137, 1144-45 (9th Cir. 2001).

Indeed, both Germany and Hungary argued below

that respondents’ claims should be dimissed on grounds

of forum non conveniens. In Philipp, Germany did not

appeal the district court’s refusal to dismiss on forum

non conveniens grounds. See 19-351 Pet. App. 83-92.

In Simon, Hungary sought review of the D.C. Circuit’s

forum non conveniens decision, see 18-1447 Pet. App.

17a-35a, but this Court denied its request, see Hungary

v. Simon, No. 18-1447, 2020 WL 3578676 (U.S. July 2,

2020) (limiting grant to question 1). Although forum

non conveniens is not before the Court in these cases,

it remains available in other cases where foreign

courts or administrative compensation schemes provide an adequate alternative forum.

Other doctrines of international comity, discussed in

Part I.A, may also be relevant in similar cases. In

28

some cases, the act-of-state doctrine will bar a U.S.

court from questioning the validity of an expropriation

within a foreign state’s territory. See Sabbatino, 376

U.S. at 428.17 When claims go forward in U.S. courts,

choice-of-law rules likely will direct application of the

law of the place where the taking occurred rather than

U.S. common law. See, e.g., Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C. Cir. 2009) (applying

D.C. conflicts rules to hold that French law governed

claims arising from assassination in France).18 And,

when a foreign court renders a final judgment, the

rules governing foreign judgments typically will bar

relitigation. See, e.g., D.C. Code § 15-367(1).

In these two cases, petitioners were free to argue—

and did argue—for dismissal in favor of German and

Hungarian forums under the doctrine of forum non

conveniens. Having failed to convince the courts

below, they now ask this Court to adopt a new

abstention doctrine and give them a second bite at the

apple. But this Court does not exist to correct errors,

particularly those of the parties themselves. Denying

petitioners’ wish would likely allow these two suits

to continue. Granting their wish, however, will have

broad and unpredictable implications, as litigants

17

The act-of-state doctrine is limited to acts “by a foreign

sovereign government, extant and recognized by this country

at the time of suit,” Sabbatino, 376 U.S. at 428, which would

presumably prevent its application to the expropriations in

these cases. In the 1950s, the U.S. government also took the

position that the doctrine should not bar suits based on Nazi

expropriations. See Restatement (Fourth) § 441 reporters’ note

13 (discussing Bernstein letter).

18 The widely adopted public-policy exception would prevent

application of foreign law that discriminates on the basis of race

or religion. See Oveissi, 573 F.3d at 842 n.3 (noting public-policy

exception in D.C. conflicts rules).

29

rush to take advantage of a vague and discretionary

doctrine permitting federal judges to abstain from

deciding actions at law over which Congress provided

jurisdiction—a power they never had or required

before.

CONCLUSION

The court of appeals was correct to reject prudential

comity abstention as a basis for dismissal.

Respectfully submitted,

October 29, 2020

GEOFFREY M. KLINEBERG

Counsel of Record

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(gklineberg@kellogghansen.com)