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Readers interested in learning about another Foreign Sovereign Immunities Act case currently before the Supreme Court, Hungary v. Simon, can read Jeremy Gordon's summary of oral argument in that case here.
Does the “expropriation exception” of the Foreign Sovereign Immunities Act (FSIA) afford U.S. courts jurisdiction to resolve claims brought by German citizens against the German government? The extent of the protections the FSIA affords sovereign states was in question on Dec. 7, when the Supreme Court heard oral arguments in Federal Republic of Germany v. Philipp.
The case itself presents two separate but intertwined issues. First, does 28 U.S.C. § 1605(a)(3) of the Foreign Sovereign Immunities Act, commonly referred to as the “expropriation exception,” afford U.S. courts jurisdiction over claims related to the actions of a foreign government against its citizens within the foreign government’s borders? And second, does the judicial doctrine of international comity foreclose the exercise of jurisdiction? Although the parties briefed both issues, the majority of the oral arguments focused on the first question: The Supreme Court focused on the comity issue during arguments in Republic of Hungary v. Simon, also held on Dec. 7. A summary of the oral arguments in Republic of Hungary v. Simon and further analysis of the question of comity can be found in this Lawfare piece.
Section 1605(a)(3) waives sovereign immunity for any case “in which rights in property taken in violation of international law are in issue.” Both the property itself and any property for which it was exchanged fall under this exception. Further, this section also creates a commercial activity nexus that applies to a foreign government, its instrumentalities or its agencies. This nexus can be established in two ways: first, presence in the United States “in connection with” commercial activities undertaken by the foreign state; or second, ownership by a government, its agencies or instrumentalities that engage in commercial activity within the United States.
In December 2016, however, Congress amended the FSIA by passing the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. This amendment was intended to narrow the expropriation exception of the FSIA to facilitate the temporary exhibit of works of art in the United States, but it also created an exception for claims arising during the Nazi era—defined as Jan. 30, 1933, until May 8, 1945—as Ingrid Wuerth described in Lawfare. Both Philipp and Simon demonstrate the Clarification Act’s impact on judicial interpretations of the FSIA.
Philipp concerns the Guelph Treasure, a 42-piece collection of medieval religious art with an estimated worth of a quarter of a billion dollars, which is currently on display in the Museum of Decorative Arts in Berlin. The plaintiffs are the heirs of a consortium of German Jewish art dealers, which purchased the artifacts in 1929 before selling them to the state of Prussia in 1935. At issue is whether the three-firm consortium was compelled to sell the artifacts by Hitler’s government.
Prior to litigating in the United States, the plaintiffs initially brought their claims before the German government’s “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish Property”—known as the Limbach Commission—which was established pursuant to the principles of the Washington Conference on Nazi-Confiscated Art. After the Limbach Commission determined that the sale was fair and that the art need not be returned, the plaintiffs filed suit against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz, the federal body responsible for the operation of the Berlin museum currently housing the artifacts, in U.S. federal court.
The U.S. District Court for the District of Columbia determined that the defendants were not entitled to sovereign immunity and rejected their motion to dismiss, though it granted their motion for interlocutory appeal in 2017. Subsequently, the D.C. Circuit affirmed the district court’s denial of the defendants’ motion to dismiss, holding that the expropriation was an initial step of the Holocaust and that a seizure amounting to genocide violates international law regardless of the victim’s nationality—meaning that the case would fall within the expropriation exception. Additionally, in Phillip v. Fed. Republic of Germany, the circuit court denied the defendants’ petition for a rehearing en banc in spite of a supporting brief on behalf of the United States. Judge Gregory Katsas dissented, questioning whether the district court should “sit as a war crimes tribunal to adjudicate the claims of genocide arising in Europe during World War II.” This dissent proved influential during oral arguments, with several justices referencing it.
The Supreme Court granted certiorari in July 2020.
The brief for Germany was grounded in customary international law and focused on the historically narrow interpretation given by U.S. courts to the expropriation exception. In line with the international law of expropriations, this historical interpretation precluded suits concerning states’ takings of the property of their own citizens, which “cabined U.S. divergence from international practice.” The effect of the broader reading given by lower courts to the expropriation exception was a “vast grant of federal jurisdiction over foreign states” that ignored the long-standing doctrine of international comity. Germany further argued that this interpretation flew in the face of congressional intent, which had sought to incorporate “the established law of expropriation, abrogating foreign states’ immunity only for violations of that body of law.” In closing, Germany argued that the claims should be dismissed under either the consensus view of the expropriation exception or the “common-law defense of comity.”
The brief of the United States, arguing in support of petitioners, criticized the decisions of the circuit court and outlined the position of the United States regarding the expropriation exception. Grounding its argument in the domestic takings rule, the government argued that “a sovereign’s treatment of the property of its own nationals does not implicate the international law principles governing expropriation.” Relying on the Restatement (Second) of Foreign Relations Law of the United States, the government noted that the phrase found in § 1605(a)(3) referred only to property that had been expropriated from an alien. Additionally, the government argued, the Second Hickenlooper Amendment, which clarified judicial review in certain takings cases, “has consistently been interpreted to exclude confiscation by a state of the property of its own nationals.” The government pointed to the text of the FSIA, which discusses human rights claims only in its terrorism exception, as further evidence that Congress likely did not intend the expropriation exception to be read as “abrogate[ing] foreign sovereigns’ immunity for human-rights violations, but only to the extent that they involve the taking of property.” Finally, the government noted, the interpretation of the court of appeals would compel courts to take an outsized role in foreign policy determinations—which would be at odds with both the Constitution and international practice.
The respondents framed their brief by focusing on the unique nature of Nazi-era organized theft of art. Relying on the 2016 amendment to the FSIA, which specifically referenced the Nazi era and the actions taken by the U.S. government after World War II to rectify the crimes of the Holocaust, the respondents argued that it is impossible to view this case as “merely a domestic issue between the German state and German citizens.” Instead, Congress’s “provision of jurisdiction for Nazi-looted art theft eliminates an argument for discretionary abstention.” The brief ties expropriation of German Jews’ property to the broader goals of the Holocaust.
Historical arguments aside, the respondents also focused on the ordinary meaning of the text in the FSIA, noting that the “relevant provision [of the FSIA] places no limit on jurisdiction based on the citizenship of the victim.” The brief also makes an expansive argument that would prove to be a major focus of oral arguments, positing that because genocide is a violation of international law, takings in conjunction with genocide fall within the ambit of “property taken in violation of international law” under the FSIA. In support of this interpretation, the respondents referenced prior cases, such as Altmann v. Republic of Austria, to note that every case to take up the question of organized looting of art had found that it “meets the threshold takings requirement.”
Audio of oral arguments is available here. Arguments lasted for an hour and a half. The subsequent summary of the oral arguments proceeds in three parts, as the solicitor general’s office argued in support of the Federal Republic of Germany.
Oral arguments opened with Jonathan Freiman, arguing for Germany, invoking the legislative history of the expropriation exception to the FSIA to argue for its limited application. Freiman noted that Congress enacted the exception in 1976 in response to communist states “engaging in widespread expropriation of property from American nationals and denying that the international law of takings required them to pay compensation.” Building off this foundation, he argued that the enacted language specifically invoked an international law doctrine, the law of takings, which “addresses only nations’ takings of foreigners’ property.” Expanding this exception, he said, would serve to create “a novel tool for suing foreign sovereigns for human rights and law of war violations occurring in their own countries.”
Oral Arguments for Petitioner, Federal Republic of Germany
Chief Justice John Roberts opens questioning by seeking to clarify Germany’s position, asking whether because the suit concerns property rights, “it should not be regarded as a qualification of international law or a case in which genocide is a pertinent issue in deciding the question of jurisdiction. Freiman acknowledges that is, in fact, Germany’s position “that [§ 1605](a)(3) explicitly is invoking and referring to the international law of takings” and that a genocidal taking is “not a taking of property within the meaning of the expropriation exception.” Roberts promptly pushes back, asking if a “taking is part of a campaign of genocide, that doesn’t alter the fact that it’s simply taking property?” In response, Freiman asserts that the text of the law coupled with the operative Restatement provision support Germany’s interpretation. He also invokes the statutory context, referencing the Supreme Court’s decision in Banco Nacional de Cuba v. Sabbatino, which was followed by Congress’s enactment of the Hickenlooper Amendment.
Justice Clarence Thomas follows with a similar inquiry, homing in on particular Nazi-era actions. Could the taking of property, “including jewelry, art, and even the extraction of gold teeth,” in conjunction with a campaign of genocide be separated from the act of genocide? In response, Freiman acknowledges that such takings were unquestionably genocidal, before seeking to reframe the question in terms of congressional intent. Specifically, Freiman asks whether § 1605(a)(3) invokes anything that can be qualified as a taking or whether the taking itself must be the gravamen of the claim. He further notes that “Congress did not see fit to create any kind of exception for genocide claims or other international human rights or law of war claims.”
Next, Justice Stephen Breyer asks about the implications of a ruling in favor of the plaintiffs. Currently, the available legal recourse for a plaintiff harmed by genocide is limited to suits against individuals involved, Breyer says—so is this the first case that has arisen on the theory that a government, in addition to an individual, could be liable? Freiman responds that such cases had arisen in the past several years, noting two cases before the U.S. Court of Appeals for the Seventh Circuit and the Simon case before the Supreme Court that day. Both Breyer and Freiman distinguish Altmann, in which a Czechoslovakian national recovered art taken under similar circumstances.
Justice Samuel Alito picks up where Breyer left off, asking whether the ancestors of the plaintiffs in the instant case were all German nationals. After Freiman responds in the affirmative, Roberts interrupts with a hypothetical about the plaintiffs: “What if they were stripped of their citizenship prior to the taking of the property?” Freiman falls back on the fact that the property at issue in this case was allegedly taken from a company jointly owned by three other companies. Thus, in Germany’s view, “this is a case of claimed takings from German national companies.” Further, Freiman notes that Roberts’s question was a moot point as the sales transaction at issue occurred prior to the enactment of the Nuremberg laws, which stripped Jewish Germans of their German citizenship. In response, Alito notes that the Clarification Act defined the covered period as beginning in 1933: “So, in Germany, were there takings in violation of international law under your interpretation prior to 1938, in other words, cases in which the property of non-German Jews was taken by the Third Reich?” Freiman acknowledges that such takings occurred and observes that they are not being litigated in this case.
Next up, Justice Sonia Sotomayor opens her questioning with an eye to Hungary v. Simon and the question of international comity. After a brief back and forth in which Freiman expresses general agreement with the positions lawyers for both Hungary and the United States put forth in Simon, Sotomayor focuses her attention on statutory interpretation and the implications of Germany’s argument. “The plain words in the statute here is ‘in violation of international law.’ And it’s clear to me that genocidal acts of taking property, even from nationals would be an act of genocide …. Why should we look to customary international law as opposed to simply the plain meaning of the words?” In response, Freiman seeks to distinguish the meaning of the words in the FSIA at the time of its 1976 enactment from the meaning of the words today.
Justice Elena Kagan drills into the statutory language “taken in violation of international law,” observing that Freiman had earlier seemed to concede that the taking of property can be an important element of genocide. Further, Kagan observes, such property would be taken in violation of international law: “So why doesn’t that just solve the problem?” Freiman argues that reading the clause in its entirety would lead to a different interpretation and that it is necessary to focus on the gravamen of the complaint. While the taking of property “can create conditions of life that are intended to destroy a people,” he says, such a taking is a violation of the law of genocide as opposed to a violation of the law of takings, and Congress enacted § 1605(a)(3) to create a “narrow exception for violations of the law of takings.”
Justice Neil Gorsuch turns his focus to nationality and citizenship, returning to the line of questioning originally pursued by Alito. Gorsuch first queries Freiman about how the law should handle stateless people, as those stripped of citizenship during the Holocaust would be barred from recovery under domestic takings law. In response, Freiman notes that the issue of statelessness was raised by neither the respondents nor prior courts and, thus, that the Supreme Court need not address it. Pressing further, Gorsuch observes, “Your third answer to Justice Alito supposed that they were, in fact, stripped of their citizenship before the taking, but that you said that doesn’t matter because they’re still nationals …. And I’m asking you, well, in what relevant sense does that make a difference?” Freiman observes that such an inquiry would require the court to determine the international law of nationality. Further, he notes, such a reading would vastly expand the law of takings “if you viewed people who were stateless as being somehow immune from the ordinary rules of the international law of takings.”
Justice Brett Kavanaugh opens his time by following up on Sotomayor and Kagan. Noting that the petitioner’s reply brief said, word-for-word, “It is literally possible to read the exception to mean takings that violate any principle of international law,” Kavanaugh asks, “why isn’t that the end of the case?” Freiman turns to prior precedent to defend this statement, relying on Samantar v. Yousuf for the proposition that just because something is literally possible does not mean it’s what the statutory text meant and Dolan v. City of Tigard to indicate a court could err by reading a statute to the limits of its definitional possibilities. Restating his view of congressional intent, Frieman notes that such an expansive reading could “create friction in international relations.”
The Supreme Court’s newest member, Justice Amy Coney Barrett, questions Freiman regarding the practical effects of the court’s adopting Germany’s reading of the law. Barrett turns first to Judge Katsas’s dissent, which raised concerns over whether, as a jurisdictional matter, a court would have to determine the scope of a genocide in order to determine whether common-law conversion occurred—“the merits equivalent of swatting a fly,” Katsas wrote. Barrett asks whether resorting to the law of takings would preclude courts from reaching the human rights aspect of the question. Freiman argues that, under Germany’s approach, a court need only decide if the claimant is a foreign national before determining whether prompt and effective compensation were given. Barrett observes that this failed to foreclose the possibility of issues of comity, as such an approach could still lead to a “very large judgment against a foreign country.” Freiman notes that the FSIA places no limit on the amount of judgment; it merely precludes punitive damages.
In closing, Freiman argues that there are three reasons to discount the respondents’ broad reading of § 1605(a)(3). First, the plaintiffs’ view of the expropriation exception would make it easier to sue a foreign sovereign than it is to sue a private defendant under the Alien Tort Statute. Second, he says, this approach does not provide for reciprocity, which counsel for Hungary in Simon had focused on at length. Finally, he argues for the need for clarity “with regard to jurisdiction, especially for foreigners …. In their view, it’s unbounded: any international law that anyone can think of in the human rights or law of war context.”
Oral Arguments for Department of Justice, Amicus Curiae in Support of Petitioner
Edwin Kneedler argued for the Office of the Solicitor General in support of the Federal Republic of Germany. Opening his argument by noting that the U.S. has long encouraged countries to establish dispute resolution mechanisms to afford victims a measure of justice, Kneedler closely tracks Freiman’s arguments. Stating that the exception on which the respondents rely is limited to “violations of the international law of takings,” Kneedler relies on the Restatement (Second) of Foreign Relations Law of the United States in effect in 1976 and the statutory history of the exception. In closing, he warns that an expansive reading would “require U.S. courts to make sensitive judgments about a foreign state’s treatment of the persons within its territory.”
Chief Justice Roberts inquires about the adequacy of the dispute resolution mechanisms mentioned by Kneedler, asking whether their efficacy factors into a determination of “whether the takings remedy should be available under international law.” Kneedler fumbles slightly in response, indicating that he doesn’t believe that should be a primary consideration of the court as the “question of any remedies between a state and its nationals was entirely internal[.]” Roberts nevertheless follows up, asking what recourse a hypothetical plaintiff would have if such dispute resolution mechanisms fail. Again searching for the appropriate words, Kneedler indicates that for the purposes of the FSIA, that is correct: “The relationship between a state and its own nationals was a matter that other nations had no right to complain about.”
Justice Thomas circles back to the line of questioning pursued earlier by Justice Alito, asking for Kneedler’s opinion on the consequences of such a narrow reading for stateless or denaturalized people. Kneedler notes that the issue has yet to be developed in the case and states he is in no position to address this matter but says that a remand could serve to determine the ramifications.
Following the general course of Thomas’s inquiries, Justice Breyer takes a broader view. Remarking that the U.S. had yet to join the International Court of Justice in spite of its long-standing policy in favor of reparation for victims of the “real horrors in the world,” he discusses the difficulties a private person would face in bringing a case under the Alien Tort Statute. What mechanisms are still available for justice in such cases, he asks? Kneedler details the steps that the U.S. has taken, including the Washington Principles and urging other countries to “establish other mechanisms for the restitution,” but his time is cut off before he can finish.
Turning the citizenship inquiry on its head, Justice Alito inquires about the implications of forced acquisition of citizenship, leading to a debate over the historical particularities of different types of governing bodies in various territories cnoquered by Nazi Germany. Moving on from this, Alito then asks about the U.S. position regarding the definition of the “covered period” in the Clarification Act. Kneedler observes that while the Clarification Act created a jurisdictional nexus by including the entire duration of the Nazi regime, it did not provide further insight into the meaning of a violation of international law in the FSIA.
Nodding to international norms, Justice Sotomayor asks whether any other nation has “created or done away with sovereign immunity for takings either from nationals or non-nationals?” Virtually no country has followed the path of the United States with respect to takings of nonnationals, Kneedler says—and no country has waived immunity for domestic takings. If the U.S. is already an exception to this international norm, asks Sotomayor, then why should the court not simply read “the plain text of the law and import into it the limitations of customary international law[,]” given that customary international law does not waive sovereign immunity? Pushing back, Kneedler observes that the exception was modest when adopted and that it was not regarded as a deviation from the generally restrictive theory of sovereign immunity. Expanding it could, in his view, create issues where a court asked to determine if genocide occurred on the basis of murky facts.
Next, Justice Kagan acknowledges Kneedler’s point that Congress likely wasn’t considering this fact pattern in passing § 1605(a)(3). But she wants to know Kneedler’s “best evidence that this language that is used in (a)(3) is a term of art with a specialized meaning, as opposed to ordinary language.” Kneedler argues that the phrase “connotes or calls up the concepts just like in our own Fifth Amendment,” pointing to Section 185 of the Restatement (Second) and the fact that the entire phrase in the bill refers to “property taken in violation of international law.” Kagan takes issue with this interpretation, distinguishing the language in the FSIA from the text of the Hickenlooper Act and noting that her reading of the Restatement indicated that the language in the bill did, in fact, cover the claims at issue.
Justice Gorsuch, up next, turns to the Clarification Act. Did the portion of the law exempting claims from the Nazi era anticipate that claims of this nature could in fact be brought under § 1605(a)(3)? In response, Needler seeks to narrow this interpretation, noting that the Clarification Act “doesn’t pass on the question of whether they are valid claims.” Rather, “[i]t serves the purpose of not granting those claims an additional immunity,” by saying that bringing such property into the U.S. does not count as a commercial activity.
Moving beyond statutory interpretation, Justice Kavanaugh explores the policy implications of precluding claims by citizens against the country of their citizenship. Kneedler frames the distinction as a matter of state responsibility to other states. In his view, an expropriating state taking the property of another state’s national not only implicates the individual harmed but also offends the right of the latter state. In contrast, Kneedler argues, “the treatment of a country of its own nationals is not a matter of international concern.” Indeed, prior cases such as Sabbatino “took as a given that there would be no compensation—or U.S. could not enforce a rule of compensation for an expropriation by another country of its own nationals’ property.”
Justice Barrett then inquires as to the relationship between the recent Clarification Act and the expropriation exception. Noting that the Clarification Act clearly envisions future claims related to Nazi-era property confiscation that would not be barred by the FSIA, she asks what kind of claims would arise under the legal interpretation put forth by the U.S. Kneedler indicates that Congress was aware of the existence of a class of claims such as those litigated in Altmann, saying that “what Congress was doing was not taking away the opportunity of someone who had such a claim to rely on the loan of property to a U.S. museum as establishing the commercial nexus” necessary to bring a claim. Thus, in Kneedler’s view, the Supreme Court “should insist upon a much more explicit and conscious determination by Congress to open up U.S. courts to these sorts of claims, which are far beyond what Congress had in mind when it enacted the FSIA.”
Kneedler wraps up his time by arguing that the FSIA served to codify the “restrictive theory of sovereign immunity,” while acknowledging certain exceptions. Consequently, the court should insist “upon a clear statement by Congress to depart from the restrictive theory.” Otherwise, U.S. courts would be compelled to make “sensitive judgments” regarding the conduct of foreign governments, including close allies of the United States.
Oral Arguments for Respondents
Arguing for the respondent, Nicholas M. O’Donnell opened his argument focusing on how the ordinary and natural meaning of the phrasing in § 1605(a)(3) of the FSIA indicates that it “applies to Petitioners’ property takings during the Holocaust.” From the moment the Nazi regime began in 1933, O’Donnell, says, it regarded German Jews “to be non-German, aliens outside of the rule of law … and took their property because of who they were.” Further, he observed, the Supreme Court in Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Co. discussed the possibility that a sovereign’s taking of the property of its own nationals “may amount to a violation of international law.” Arguing that the instant case does not represent a “new kind of human rights case,” O’Donnell asserts that the “Petitioners’ newfound status-based comity abstention argument would trample the FSIA out of existence.”
Chief Justice Roberts opens questioning by asking about the conflict between the respondents’ theory of the case and the International Court of Justice determination that refusing to grant a state immunity for the expropriation of its own nationals’ property would be a violation of international law. O’Donnell responds that the U.S. is the only nation that provides jurisdiction for such claims—and, consequently, “if the expropriation exception would violate international law, it already had and it already has for almost 45 years.” Roberts then presses O’Donnell on evidence for the existence of a genocide exception expanding the general rule limiting the expropriation exception solely to takings of foreign nationals’ property. Noting first that genocide was a violation of international law at the time the FSIA was enacted, O’Donnell also highlights “that it was the policy of the executive, never rescinded since, to remove any constraint upon the exercise of jurisdiction over the acts of Nazi officials.” Pushing back, Roberts looks for some limiting principle for future cases and asks whether there should be a general genocide exception. O’Donnell responds that the gravamen of a claim must concern the taking of property and distinguishes violations of international human rights such as torture, which per the Torture Victim Protection Act “specifically eschews torture by deprivation.”
Next up, Justice Thomas observes that every genocide seems to involve either a taking or a loss of property and asks whether O’Donnell can provide an example of genocide in which property was not involved. O’Donnell argues that genocide can occur in multiple ways; if the taking of property occurred in the aftermath of the genocide, he suggests, then the taking did not instigate the genocide. Disagreeing with the idea that such sequencing was legally consequential, suggests that the respondents’ reading of the expropriation exception would be a radical departure from the prior restrictive theory of sovereign immunity. Conceding that such an interpretation would be a departure from the restrictive theory, O’Donnell leans into the fact that “there is no paradigm like the Holocaust. And there is no second case that fits into the allegations of the Holocaust.”
Following Thomas, Justice Breyer pushes O’Donnell on the comity issue, asking about the implications of two potential readings of the FSIA. On the one hand, the language could refer only to state expropriations, of which Breyer provided examples. A broader, alternate interpretation would implicate any violation of international law involving property. Highlighting the many international law violations implicated by such a reading, Breyer notes that “if we can bring these kinds of actions here, well, so can these other countries do the same and accuse us.” O’Donnell posits that congressional identification of a particular episode or taking as a violation of international law could serve as a limiting principle. Unsatisfied, Breyer peppers O’Donnell with several hypotheticals: What about an instance in which a country enslaves children of another national origin? O’Donnell argues that in such cases, “the violation of the international norm … doesn’t cause the deprivation.” Further, in O’Donnell’s view, acts of Congress such as the Clarification Act indicated that there was no need for further inquiry in the instant case.
Justice Alito asserts that, as briefed, O’Donnell’s interpretation appears to apply to any and all domestic takings—but O’Donnell counters that a violation of a norm of international law is an additional prerequisite. His argument “extends certainly to genocide,” O’Donnell says, but also to other situations where “it is a violation of the norm itself that causes the property taking.” Pressing on this, Alito asks whether such an argument would create a threshold question for courts, requiring them to determine if a particular event was one that “indisputably involved atrocities amounted to genocide?” O’Donnell concedes this but again suggests looking to whether Congress had spoken about a particular episode.
Justice Sotomayor redirects her inquiries toward the procedural posture of the case. She asks for guidance in the event that the Supreme Court accepted Germany’s view that “customary international law does not apply to the takings of nationals.” In this event, Sotomayor wants to know, should the court reverse and direct dismissal or reverse and remand for some other argument? O’Donnell suggests the possibility of a remand to determine the nationality issues that have arisen in the course of oral arguments. Sotomayor finishes her questioning by noting that no other country recognizes causes of actions for expropriation of property within another nation’s borders, inquiring how it is possible to ask lower courts to do so. O’Donnell demurs, stating that the facts of a particular case would make such a determination possible.
Justice Kagan focuses on the inconsistencies that could be created by granting the respondents their desired relief. Referencing Judge Katsas’s dissent, she observes that the respondents’ position would allow victims of the Holocaust to bring suit for takings while precluding relatives of victims from bringing suit for their deaths. O’Donnell argues that such a dichotomy already exists: A foreign national could sue a government for property takings under the FSIA, he argues but could not do so to seek redress for being tortured. Next, Kagan asks what exactly O’Donnell believes the law would have to say “to limit it to sort of standard international law expropriations.” O’Donnell frames this as a term of art issue, noting that Congress could have phrased it in a manner “that more obviously implicated a body of law.” Kagan pushes back, noting the FSIA, subject to certain exceptions, codified a restrictive theory of sovereign immunity—indicating that the congressional intent behind the suggestions is important.
Justice Gorsuch picks up where Kagan left off, asking about Katsas’s statutory analysis. Seeking to clarify O’Donnell’s exchange with Kagan, Gorsuch asks whether the respondents’ case would be more difficult if the language of § 1605(a)(3) said “taking” rather than “taken”—given that only the former is a legal term of art. O’Donnell expresses uncertainty over whether “taking” is a term of art but indicates that it is closer to one than “taken.” Gorsuch next inquires about inconsistencies between the statute, which uses “taken”; the Restatement, which discussed “takings in violation of international laws in the manner that your opponents suggest”; and international conventions that “contained language more like what you’re asking us to read into this statute.” O’Donnell counters that both the elements of international law referenced and the language of the Restatement—which contained a chapter called “Taking of the Property of Aliens,” utilizing “taking” instead of “taken”—should be seen as “exemplary but not exhaustive.” Gorsuch questions what limiting principle would cabin the respondents’ interpretation, which “seemed to be some sort of causation analysis” where human rights violations “somehow are related to property.” In the subsequent exchange, O’Donnell clarifies that the taking of property does not necessarily cause other human rights violations beyond the atrocities at issue in this case. Further, O’Donnell notes, as the FSIA and the exception in § 1605(a)(3) are concerned with property, “there is a discrepancy between the treatment of property claims and personal injury claims or other human rights claims.”
Justice Kavanaugh, up next, focuses initially on how other countries would treat similar claims. Clarifying that this suit could not have been brought in any other court outside Germany, he observes that a universal norm provides immunity for foreign nations with respect to their domestic takings. Kavanaugh then asks O’Donnell’s thoughts on a reporter’s note in the current Restatement, which indicates that allowing recovery in cases where takings occurred in egregious violation of international law was beyond the intent of Congress at the time of the FSIA’s enactment. O’Donnell falls back on the fact that the Holocaust “was the paradigmatic episode of taking and international law violation in 1976.” As such, he says, Congress would have been surprised by the assertion that “Nazi Germany’s property taking didn’t violate international law for the whole of the regime.”
Justice Barrett returns to Kagan’s line of questioning. She opens with the observation that O’Donnell’s distinction between “taken” and “taking” seems thin: Other subsections of the FSIA refer to takings, she says, and the drafted language of § 1605(a)(3) required the use of the word “taken.” O’Donnell clarifies that the use of “taking” in § 1605(a)(3) would not have foreclosed the claims. But Barrett notes that O’Donnell’s argument rests on the ordinary meaning of the drafted term “property taken in violation of international law,” while also relying on limitations outside the ordinary meaning of the text that would serve to cabin the future use of § 1605(a)(3) in other litigation. O’Donnell counters that the plain meaning of § 1605(a)(3) serves merely as the starting point of analysis. It would also be necessary, he says, to determine whether international law “was breached through the deprivation of the property itself.”
In closing, O’Donnell first focuses on Germany’s argument. In Germany’s view, O’Donnell notes, “Congress intended to disadvantage the Nazi’s first victims, German Jews”—despite the absence of language in the FSIA limiting claims based on nationality, not to mention the language in the Clarification Act recognizing the Nazi regime’s takings as within the expropriation exception. Moving on to the comity question, O’Donnell argues that for courts to read a “status-based new comity abstention doctrine to avoid the FSIA” would be analogous to allowing an umpire to allow a batter who struck out to reach first base if the batter “is important enough or really wants to get to first base.”
After O’Donnell’s closing argument, Freiman receives three minutes for rebuttal. He opens by noting that the Clarification Act applies only to “art that is physically present in the United States.” Subsequently, he focuses on the hypothetical remedy, arguing that a finding “that the expropriation exception applies only to violations of the international law of takings” would foreclose the possibility of remand. Taking a step back, Freiman distinguishes each side’s reading of the law. In his view, Germany’s reading was consistent with the background against which Congress was legislating and the understanding put forth in the Restatement. Congress was aware of the importance of clarity in jurisdictional statutes and knew the boundaries of the international law of takings, he says. But the respondents’ reading “would ignore judicial interpretations of the very similar language of the second Hickenlooper Amendment,” and would ignore Congress’ codification of the restrictive theory of sovereign immunity—thus violating “the international law of state immunity.” The respondents provided no limiting principle, Freiman argues—and a ruling in plaintiffs’ favor would require hundreds of lower court judges to “sit as new world courts, judging the nations of the world for alleged violations of international human rights and the law of war.”