Case No. 18-1447 | D.C. Cir.
December 7, 2020
Preview by Nick Contarino, Online Editor
The respondents, Simon, et al. (“Simon”), are 14 Jewish survivors of the Hungarian Holocaust who filed suit against petitioners, the Republic of Hungary, et al. (“Hungary”) for Hungary’s alleged collaboration with the Nazis during WWII. Brief for the United States as Amicus Curiae at 3, Republic of Hungary v. Simon, No. 18-1447 (U.S. filed Sept. 11, 2020). Simon alleges that Hungary transported Hungarian Jews to death camps and stripped them of their property as part of the Nazi’s genocidal campaign. Seeking compensation, Simon brought common-law property torts and other claims against Hungary in the United States District Court for the District of Columbia. The Foreign Sovereign Immunities Act of 1976 (“FSIA”) supplies the sole basis for claiming jurisdiction against a foreign state in federal or state court. 28 U.S.C. §§ 1330, 1441(d), 1602 et seq. (2018). FSIA grants foreign states immunity from the jurisdiction of a U.S. court unless a claim falls under one of the exceptions to immunity. 28 U.S.C. §§ 1604–1607. The district court found that Hungary’s acts, as plead within the complaint, were adequately within the expropriation exception, and hence jurisdiction was proper.
Hungary moved to dismiss, contending that “the district court should abstain from exercising jurisdiction as a matter of international comity until [Simon] exhausted their remedies in Hungary.” Brief for the United States at 5. Comity-based abstention is the ability for a U.S. court to “abstain from exercising its jurisdiction over a controversy that implicates substantial interest of another nation, so that the controversy can instead be addressed in an alternative forum provided by that nation.” Id. at 8. The court found that the “[e]xhaustion of domestic remedies is preferred in international law as a matter of comity.” Id. at 5 (quoting Simon v. Republic of Hungary, 277 F. Supp. 3d 42, 54 (D.D.C. 2017)). Finding that Simon did not exhaust Hungary’s own domestic remedies, or prove that doing so would be futile, the district court dismissed the case. After a series of appeals and remands, the Supreme Court is now considering whether comity-based abstention warrants dismissal.
Hungary and the United States, appearing as amicus curiae, argue that comity-based abstention is essential to ensure that litigation within the United States does not damage foreign relations or hinder the United States’ ability to receive reciprocal treatment in the courts of other nations. See id. at 8–9; Brief for the Petitioners at 1, Republic of Hungary v. Simon, No. 18-1447 (U.S. filed Sept. 4, 2020). Hungary argues that FSIA should be interpreted against the background of the common law, particularly the comity principles courts have used in the past. Brief for the Petitioners at 15. Although comity-based abstention is not found within the text of FSIA, Hungary states that FSIA does not foreclose its validity because it is not an “immunity defense.” Id. at 16. Furthermore, Hungary states that FSIA’s text confirms the “continued vitality of comity-based abstention” because § 1606 states that a sovereign’s liability under FSIA is the same as a private individual, and courts have held that a private individual could obtain comity-based dismissal. Id. at 16–17 (citing Can. Malting Co. v. Paterson S.S., Ltd., 285 U.S. 413, 423 (1932). Finally, Hungary argues that the United States’ interest in “imposing damages on Hungary for historic injustices within Hungary’s territory, affecting its own nationals,” is small, whereas Hungary’s interests in the controversy are enormous given that Simon seeks to recover tens of billions of dollars. Id. at 17, 38.
Simon contends that Hungary’s reliance on the common-law international-comity doctrine is flawed, as the enactment of FSIA displaced the doctrine. Brief for Respondents at 9, Republic of Hungary v. Simon, No. 18-1447 (U.S. filed Oct. 22, 2020). They argue that accepting the governments’ position would permit discretionary and standardless determinations of comity to supersede FSIA’s “clear and comprehensive regime,” returning “foreign-sovereign-immunity determinations to the pre-FSIA bedlam that Congress and the Executive sought to end” through FSIA’s enactment. Id. Simon states that Hungary’s reliance on § 1606 is flawed, as it only governs liability and the allocation of damages, not jurisdiction. Id. at 10. Additionally, Simon states that if the Court does find that courts may abstain from exercising FSIA jurisdiction based on international comity, it should hold that such abstention is only available “when the Executive expressly requests that a case be dismissed based on specific foreign-policy concerns.” Id. at 11. No express request exists in this case. Finally, Simon states that Hungary’s interests are “vastly outweighed by [Simon’s] interest[] in obtaining real relief and in not being forced to return to the scene of Hungary’s atrocious crimes,” and argues that the United States’ interests are high because “Hungary has failed to establish a mechanism for resolving Holocaust-era claims.” Id. at 39.