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Readers interested in learning about another Foreign Sovereign Immunities Act case currently before the Supreme Court, Federal Republic of Germany v. Philipp, can read Coleman Saunders’s summary of oral argument in that case here.
Can courts abstain from hearing suits against foreign sovereigns for reasons of international comity, even when the Foreign Sovereign Immunities Act (FSIA) has provided the court jurisdiction over the suit by stripping the foreign sovereign of immunity? That is the central question that justices of the Supreme Court considered during oral argument Dec. 7, 2020, in the case of Hungary v. Simon, in which a group of Jewish survivors of the Holocaust in Hungary brought a putative class action against the Hungarian government seeking redress for the expropriation of their property during the Holocaust without first pursuing remedies in the Hungarian legal system.
Howard M. Wasserman, writing for SCOTUSblog, explained the background of the case:
Hungary arises from the nation that executed the Holocaust with a “speed and ferocity” unique among European nations. More than two-thirds of the more than 800,000 Jews who lived in Hungary at the beginning of World War II were killed, with more than 430,000 rounded up and deported to death camps during the summer of 1944. Preceding the deportations and murders was a “wholesale plunder,” confiscation and expropriation of Jewish property.
Fourteen Jewish survivors of the Hungarian Holocaust filed a federal class action in 2010 against Hungary and the successor-in-interest to its state-owned railroad, seeking compensation for the property taken from them. The 14 named survivor plaintiffs were Hungarian nationals or resided in Hungary-annexed countries prior to the war; all became citizens of the United States, Canada, Israel or Australia following the war. The district court dismissed the claims against Hungary for lack of subject-matter jurisdiction and against the railroad for lack of personal jurisdiction, but the D.C. Circuit reversed. When the case was sent back to the district court, the district court again dismissed, this time relying on international-comity abstention and forum non conveniens (a doctrine under which a U.S. court declines to hear a case in favor of a more convenient and interested foreign forum). A divided panel of the D.C. Circuit reversed, and the Supreme Court agreed to review the comity issue.
The parties address in their briefs whether a doctrine of international comity-based abstention survived the enactment of the Foreign Sovereign Immunities Act—and, if it did, when it would be appropriate for courts to abstain from exercising their jurisdiction on international comity grounds. The parties also address whether the plaintiffs’ suit should be dismissed because the case is “foreign cubed”—meaning that it concerns conduct by a foreign sovereign in foreign territory affecting foreign nationals—and, as a result, the plaintiffs should have first sought remedies in Hungary’s courts before bringing suit in the United States.
In its briefings, the petitioner, the Republic of Hungary, argued that international comity has a long history in U.S. law, separate and distinguishable from related doctrines, like forum non conveniens and the act of state doctrine. The FSIA only concerns the immunity of foreign sovereigns, Hungary argued, and does not abrogate generally applicable federal common law doctrines—like comity—which courts can use to abstain from ruling on the merits of a case, even when the court has jurisdiction. And, Hungary argued, any holding that forecloses the availability of comity-based abstention would violate the text of the FSIA. The parties agree that comity-based abstention is available to foreign private defendants, and § 1606 of the FSIA states that “[a] foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” In Hungary’s view, this statute requires that international comity-based abstention be available to courts in cases against foreign sovereigns as well. Next, Hungary argued that the United States does not have a strong enough interest in the case to warrant hearing the case without the plaintiffs first seeking a remedy in Hungarian courts. The litigation, Hungary contended, concerns “events of historical and political significance” that will carry a “profound effect” on Hungary. That, Hungary said, should trigger “a comity interest in allowing a foreign state to use its own courts for a dispute.”
For their part, plaintiffs-respondents argued that any otherwise applicable doctrine of international comity based in common-law principles predating the passage of the FSIA were displaced by the text of the FSIA, and that a federal court cannot refrain from exercising jurisdiction over a foreign state when the FSIA provides it. And because courts are ill equipped to make the careful foreign policy judgments required to determine whether to abstain on comity grounds, courts would have to rely on executive branch recommendations to make such determinations. This, the plaintiffs wrote, would constitute a reversion from the FSIA regime of comity-based immunity to the “executive-driven, factor-intensive, loosely common law-based immunity regime” era of “bedlam” that predated it. Congress intended to depart from that era by defining the scope of foreign sovereign immunity through the FSIA, standardizing sovereign immunity determinations, and leaving those determinations to the courts. Through the FSIA, Congress provided courts with the necessary foreign policy expertise needed to decide when to exercise jurisdiction in lawsuits against foreign countries, the plaintiffs wrote. The plaintiffs argued that if the Supreme Court did recognize international comity-based abstention, the court should not apply the doctrine in this case, because the U.S. government did not recommend it do so on foreign affairs grounds.
Additionally, the United States filed an amicus brief in the case. In its brief, the Justice Department asked the court to recognize the existence of a doctrine of international comity-based abstention but took no position on whether the court should abstain on comity grounds in this particular case.
The Supreme Court’s decision in Simon may be affected by its resolution of a related case, Federal Republic of Germany v. Philipp, for which the court also held oral argument on Dec. 7. (A summary of oral arguments in Philipp is available here on Lawfare.) Philipp, which also involves the confiscation of Jewish people’s property during the Holocaust, concerns the scope of 28 U.S.C. § 1605(a)(3), the expropriation exception of the Foreign Sovereign Immunities Act—which is the basis for the court’s jurisdiction over the plaintiffs’ claims in Simon. That exception abrogates foreign sovereign immunity when “rights in property taken in violation of international law are at issue.” In Philipp, the court will consider whether to uphold a ruling by the U.S. Court of Appeals for the D.C. Circuit that the expropriation exception provides jurisdiction over claims stemming from a foreign sovereign’s genocidal taking from its own national within its own borders in violation of international human rights law. How the court rules on this question could affect whether the claims in Simon can also find a jurisdictional basis under the expropriation exception to foreign sovereign immunity.
However the Supreme Court ultimately rules, its decision will resolve a circuit split on the issue of international comity between the U.S. Courts of Appeals for the Seventh and D.C. Circuits. In a similar lawsuit in 2015—in which plaintiffs also sought reparations from the Hungarian government for World War II-era property losses—the Seventh Circuit held that “principles of international comity make clear that these plaintiffs must attempt to exhaust domestic [Hungarian] remedies before foreign courts can provide remedies for those violations.” The D.C. Circuit, however, squarely rejected that conclusion in its ruling in Simon.
With that background, here is the summary of oral argument.
Oral Arguments for Petitioner, Hungary
Gregory Silbert, representing Hungary, opens by arguing that the Supreme Court has long recognized comity-based abstention in scenarios mirroring the facts of this case—when the actions of a foreign sovereign harm its own nationals in its own territory. Exercising jurisdiction over a foreign sovereign for this type of conduct, he asserts, could impose “economy-crushing liability” that would create “international friction” and potentially expose the United States to analogous claims in foreign courts.
Silbert then takes on the argument that the FSIA makes abstention based on international comity unavailable to the court. The FSIA’s plain text, he argues, concerns only foreign sovereigns’ immunity from jurisdiction; it has no effect on nonjurisdictional prudential doctrines like comity-based abstention. Next, he says, comity-based abstention would remain available in cases against private individuals were the Supreme Court to uphold the D.C. Circuit’s ruling. This would lead to an anomalous result barred by the text of the FSIA. Finally, he notes, the FSIA did not displace other prudential grounds for declining to exercise jurisdiction, like the doctrine of forum non conveniens, and there is no reason to treat international comity any differently.
Chief Justice John Roberts steps in with a question about this last point, asking Silbert to explain the independent significance of the doctrine of international comity, as distinguished from related abstention doctrines, like forum non conveniens and act of state. If Hungary’s concern is that this case involves Hungarian citizens suing Hungary for events in Hungary, then why, Roberts asks, shouldn’t a court take these considerations into account under the doctrine of forum non conveniens?
The doctrines of forum non conveniens and international comity may be related, but they are distinct, Silbert explains. He points out that the D.C. Circuit held that forum non conveniens does not apply and adds that the two doctrines serve different objectives. Forum non conveniens concerns questions of convenience or practicality of participating in litigation for the parties involved, while international comity concerns the “dignitary interests” of a sovereign when it has a competing claim to jurisdiction.
Justice Clarence Thomas then asks Silbert to step back: What if the court holds, in Germany v. Philipp, that the type of expropriation at issue in that case and in Simon does not fall under the FSIA’s expropriation exception? How should the court then rule in Simon?
If that were the case, Silbert responds, then the court could hold that it does not have jurisdiction and could vacate the D.C. Circuit’s decision. But the court could go on to decide the comity question, which Silbert claims two earlier Supreme Court cases, Sinochem and Levin v. Commerce Energy, make clear. Silbert suggests that given uncertainty about the availability of international comity-based abstention and the split among circuit courts on the question, such a move would be useful.
Thomas pivots back to the doctrine of international comity, asking whether the court could create the doctrine if it determines that the doctrine did not predate the enactment of the FSIA in 1976. Silbert says it could. But he does not concede that the comity defense did not precede the enactment of the FSIA. He states that the doctrine has been discussed explicitly in The Belgenland and Canada Malting, as well as in Justice Antonin Scalia’s dissenting opinion in Hartford Fire, Justice Stephen Breyer’s concurring opinion in Kiobel, and Justice Sonia Sotomayor’s dissenting opinion in Jesner.
Thomas then asks how international comity would be applied. Wouldn’t adopting the doctrine bring the court back to the pre-FSIA era, in which questions of sovereign immunity were decided on a case-by-case basis, and from which Congress sought to depart by enacting the FSIA? Silbert responds that it would not, because the pre-FSIA regime left sovereign immunity questions to the executive branch, rather than the courts, and the executive was subjected to political and diplomatic pressure in individual cases. Hungary’s comity defense, however, demands nothing from the executive and is easy for courts to apply. Courts start with a simple question in applying the doctrine: whether the complaint alleges that foreign parties harmed other foreign parties.
Justice Breyer returns to the question of whether sovereign immunity is its own separate doctrine, rather than a motivating principle underlying related doctrines. If it is a separate doctrine, Breyer asks, what does it consist of? Silbert says that principles of comity indeed find expression in some other doctrines, but that the court has nevertheless identified separate and distinct comity-based abstention doctrine. Silbert then suggests factors the court should consider in deciding whether comity-based abstention is appropriate. First, he says the court should ask whether a complaint is alleging that a foreign party harmed another foreign party. If so, comity-based abstention may be available. Then, the court should ask whether there is a distinct American interest in the controversy that would nonetheless justify exercising jurisdiction.
Next, Justice Samuel Alito asks about § 1606 of the FSIA, which makes a foreign state “liable in the same manner and to the same extent as a private individual under like circumstances.” The respondent says that this concerns the scope of a defendant’s substantive liability, rather than threshold federal common law defenses. Why, Alito asks, isn’t that the best interpretation of the statutory text? Silbert says that Hungary should win even if § 1606 were not in the statute. Still, he says, § 1606 helps Hungary’s case. The section refers not only to the extent of liability but also to the manner of liability. If a private defendant would not be subjected to class action liability in a U.S. court, then under § 1606 a sovereign defendant should not be subjected to class action liability in a U.S. court either. Additionally, Silbert says, the respondents do not dispute that the doctrine of forum non conveniens survived the enactment of the FSIA. If that doctrine survived, Silbert avers, then comity-based abstention must too.
Alito then picks up Thomas’s line of questioning about the underlying basis for the court’s jurisdiction over the plaintiffs’ claims. If the court rules in favor of Germany in Phillips, and holds that Germany’s expropriation of its citizens’ property there did not fall within the FSIA’s expropriation exception because it did not implicate the “in violation of international law” requirement of the exception, wouldn’t the plaintiffs’ claims in this case still fall within the exception based on their claim that they were denaturalized by the Hungarian government? Silbert says no. If domestic expropriation in instances of genocide did not fall within the exception, he says, then the plaintiffs’ argument that they were stateless persons would apply in every such case.
Justice Sotomayor returns to the question of how the court should proceed if it decides that there is no subject matter jurisdiction over the plaintiffs’ claims. Wouldn’t any holding on the issue of international comity then be essentially an advisory opinion, which the Supreme Court is constitutionally prohibited from rendering? Silbert responds that the court can dismiss the case on threshold comity grounds without first determining whether it has jurisdiction. Sotomayor clarifies her question—what if the court had decided prior to deciding this case that it did not have jurisdiction? In that case, Silbert answers, the court could hold in this case that it did not have jurisdiction and could vacate the circuit court’s decision.
Sotomayor then shifts her focus to Hungary’s argument in its brief. She says that the briefing seemed to focus more on the fact that the plaintiffs did not exhaust their remedies in Hungary before bringing the case in U.S. courts. In oral argument, though, Hungary seemed to be focusing on the prudential international comity doctrine. Silbert says that the two arguments amount to the same thing: Because of principles of comity, the plaintiffs should first assert their claims in Hungarian court. Whether one considers this an “abstention” or “exhaustion” principle, Silbert argues, American courts should decline to exercise jurisdiction until the plaintiffs have done so.
Justice Elena Kagan begins a line of questioning about the historical basis of the comity doctrine. She asks Silbert about an amicus brief that argues that the cases Hungary cites to establish the doctrine instead are either immunity cases or forum non conveniens cases, and that there is not a historical basis for a separate international comity doctrine. Silbert points once again to The Belgenland. The case, he argues, says expressly that courts decline jurisdiction in cases between foreigners out of motives of both convenience and international comity; it also establishes that in some cases, before exercising jurisdiction in cases involving foreign interests, federal courts would seek the consent of the consul of the foreign nation with a competing claim to jurisdiction. The purpose of this, Silbert says, was to give the consul the ability to tell the courts whether exercising jurisdiction would be an affront to the dignity of that nation—it was not about the convenience of the parties.
Kagan then challenges Silbert’s argument that international comity would not revive executive-driven abstention. Shouldn’t the executive be involved in abstention determinations, owing to its expertise in foreign affairs and political accountability? If so, she asks, wouldn’t that eventually replicate the unpredictable and unsatisfactory pre-FSIA “kitchen sink” approach to sovereign immunity that Congress moved away from? No, Silbert answers. Hungary is not asking courts to make foreign policy judgments, only to recognize that there is a risk of international friction when a lawsuit asserts claims by a foreigner against another foreigner, especially for conduct in a foreign country.
Justice Neil Gorsuch jumps in. He says that Hungary is asking the court to make foreign relations determinations that, under the pre-FSIA regime, were channeled through the State Department. How is that an improvement over the regime Congress sought to displace with the FSIA? Silbert responds that he is not proposing the court make foreign policy judgments, only that it recognize when a case would cause international friction.
Justice Brett Kavanaugh follows, asking whether Silbert is asking the court to adopt the bright line rule that it should abstain in cases where a foreign defendant injured foreign plaintiffs in a foreign country. Yes, Silbert says, if there are no other relevant facts and circumstances. Kavanaugh then asks whether the plaintiffs would have recourse in the European Court of Human Rights if they were treated unfairly by the Hungarian courts. Yes, Silbert responds, that is set out in the European Convention on Human Rights, which permits plaintiffs to apply for relief in the European Court of Human Rights if they are denied a fair trial by an impartial tribunal.
Justice Amy Coney Barrett follows up on Silbert’s argument that the plaintiffs must first seek redress in Hungarian courts. After the plaintiffs have done so, Barrett says, would the doctrine of international comity remain a bar to relief in U.S. courts? The plaintiffs could still come to the U.S. and seek relief like any plaintiff who had litigated in a foreign court could, Silbert responds. Then, the U.S. would use the same principles as it would any time a foreign court had rendered a judgment in deciding whether to recognize the foreign court’s judgment. But isn’t that a question of preclusion, rather than international comity, Barrett asks. Yes, Silbert states, it does ultimately come down to an issue of preclusion, but the plaintiffs must still first bring their claims to the foreign courts. If they were denied relief on illegitimate grounds, then they could try to reopen their claims in U.S. courts. But, Barrett asks, wouldn’t the “foreign-cubed” nature of this suit still apply if the plaintiffs exhausted their claims in Hungary first? Whether there are available remedies in the alternative forum, Silbert responds, is still an appropriate question for a U.S. court to ask, and should factor into whether the plaintiffs can press their claims in the U.S., even if it should still be a high bar.
In closing, Silbert emphasizes two points he made earlier. First, he argues that respondents’ position creates the anomalous result that it is easier to sue foreign sovereigns than it is to sue private defendants—what Silbert claims should be a “big red flag.” Second, he says that respondents ignore the reciprocity problems by subjecting the U.S. to analogous suits in foreign nations’ courts, which he says Congress did not intend.
Oral Arguments of the United States, as Amicus Curiae
Next, Benjamin Snyder, assistant to the U.S. solicitor general, argues on behalf of the United States as amicus curiae in support of Hungary. He opens by stating that more than a century of Supreme Court precedent recognizes the following articulation of the doctrine of international comity: When an American court encounters a case that raises serious foreign relations concerns, the court may abstain from exercising its jurisdiction as a matter of international comity if it determines that the case would be better heard in a foreign forum. The FSIA does not foreclose that—on the contrary, Snyder notes, § 1606 of the FSIA requires that foreign sovereigns be treated no worse than private defendants facing equivalent claims. Because private foreign defendants are free to seek comity-based abstention, Snyder points out, § 1606 requires that foreign sovereigns be free to do so as well.
Chief Justice Roberts jumps in, asking Snyder why the government has “scrupulously avoided” telling the courts what the foreign relations impact of the case is on the United States. Snyder responds that the United States does not feel it has sufficient information to make that determination, and he and Roberts tangle over whether the government doesn’t have enough information or whether it just doesn’t want to make a decision.
Justice Thomas then asks whether the government and petitioner’s suggestion would revive the case-by-case approach to foreign immunity that the FSIA was intended to move away from. Snyder responds that the FSIA addresses only sovereign immunity and not the doctrine of international comity, which is neither an immunity doctrine nor limited to sovereigns. Snyder points to Samantar to support his contention that the FSIA was not intended to displace every other doctrine. In that case, the court recognized that the FSIA did not displace the “very similar” doctrine of official immunity.
Justice Thomas probes the history of international comity-based abstention. Does it predate the FSIA? Yes, Snyder replies, pointing again to The Belgenland. That case specifically noted that American courts looked to the views of foreign consults in deciding whether to exercise their jurisdiction over cases between foreign parties. In doing so, it addresses both questions of convenience and international comity.
Justice Breyer doubles down on Justice Thomas’s question about whether international comity-based abstention would revive the problems Congress addressed through the FSIA. He poses a hypothetical showing that courts could get a different result when they seek the advice of the State Department about whether a suit is immediately in American interests or whether American industry is being helped or hurt. Should this be taken into account in a comity analysis? Snyder answers that the doctrine does indeed take into account American and foreign interests involved, and goes on to explain the difference between comity-based abstention and sovereign immunity. The former looks to whether there is an adequate forum in the other country, while the latter does not. So to the extent that Congress was concerned with ensuring plaintiffs have a forum in which to seek redress that would not be denied to them based on political considerations, comity accounts for that in a way that sovereign immunity did not.
Justice Alito asks whether the United States would be forced into the position of having to explain the foreign relations impact of every lawsuit to a federal district judge every time the doctrine is asserted. No, Snyder responds; there are circumstances in which courts can make decisions about whether to abstain without requiring input from the U.S. government. Alito asks about how the doctrine would impact the country’s nearly 700 district judges: Should every one of them assess whether a particular lawsuit raises foreign relations concerns? Yes, Snyder replies. When the court has expressed concern about the capabilities of federal courts in addressing foreign, he explains, the concern has been primarily about creating international friction unintentionally. The question here, in contrast, is whether courts can abstain from exercising their jurisdiction. Abstention will rarely create international friction, he explains, so the Supreme Court should not foreclose them from doing so.
Justice Sotomayor reiterates the other justices’ concerns about pressure that comity-based abstention would place on the State Department. Didn’t Congress already determine what role the State Department should have by passing the FSIA, and can the court substitute its judgment about which suits should move forward in the United States for that of Congress? Snyder responds that abstention is not a substitution of the court’s judgment for that of Congress, because when the court applies the doctrine, it is by definition determining that it will not exercise the jurisdiction that Congress had provided. The court should not, he states, abstain on grounds it would precisely replicate a judgment Congress has already made.
Sotomayor continues: Don’t other doctrines, like forum non conveniens, take care of considerations relating to foreign relations? If Congress did not provide foreign sovereigns immunity from suits that could cause international friction, why should that friction lead to abstention? Snyder answers that the FSIA was meant to address categorical immunity but that the court has recognized that the law did not deal with every other comity-based doctrine that predated the FSIA.
Justice Kagan asks how, if the State Department does not have enough information to make a decision in this case, courts could be expected to do so. Some might say that what is going on here is that the State Department is “expecting the court to do the difficult and sensitive and some might say dirty work for you.” Snyder responds that the court is capable of determining how a case would proceed in an alternative forum, because that is a determination it already makes in the forum non conveniens context. Justice Kagan next asks what the government’s best historical case is for the existence of the comity doctrine. Like Hungary, the government points to The Belgenland.
Next, Justice Gorsuch asks whether the doctrine the government is arguing for is in fact a broad-based comity abstention doctrine, or an exhaustion doctrine, since Snyder had earlier responded that the real confusion for the State Department was about what remedies would be available to the plaintiffs in Hungary. That sounds like exhaustion, Gorsuch says. And, Gorsuch points out, the petitioners indicated that plaintiffs, after exhausting Hungarian remedies, would be free to come to the U.S. subject only to preclusion principles, which have nothing to do with abstention. Snyder disagrees. While there are similarities between abstention and exhaustion, in the government’s view it is appropriate for a court to make a decision about whether to abstain based on whether there is an adequate forum available in the other country. “Boy, that sure sounds like exhaustion doctrine to me,” Gorsuch fires back.
Assuming plaintiffs first have to exhaust, Gorsuch asks why Jewish victims of the Holocaust who were deemed noncitizens and stripped of their citizenship should have to exhaust their remedies elsewhere. Snyder responds that the government hasn’t taken a position on that, but points to a case in the Seventh Circuit where the government took the position that comity-based abstention was appropriate in a lawsuit against the French National Railroad: in that case, the U.S. and France had worked to create an administrative mechanism by which claimants who lost property in France during World War II could seek redress.
Justice Kavanaugh next asks Snyder the same question he asked counsel for Hungary. “Is it your position that when a foreign defendant has injured foreign parties in a foreign country that abstention is necessarily appropriate?” No, Snyder responds. The court should also ask itself about the adequacy of the alternative forum. If that forum is adequate, abstention would likely be appropriate, unless the United States has some strong interest in the subject matter. In certain circumstances, such as when there is a statute expressing a particular U.S. interest in the subject matter, courts could make that determination on their own without the guidance of the State Department.
Justice Barrett asks how the doctrine of comity proposed by the government fits with other concepts, such as exhaustion, forum non conveniens and international friction. Does comity subsume those other doctrines? Snyder replies that comity-based abstention is categorically different from those doctrines, because international comity focuses on the foreign sovereign’s dignitary interest.
In closing, Snyder reiterates that comity-based abstention in U.S. courts plays an important role in the government’s diplomatic efforts to resolve matters of Holocaust-era restitution and compensation. He asks the court to make clear that the FSIA does not foreclose such abstention.
Oral Arguments for Respondents, Simon
Sarah E. Harrington opens for respondents, survivors of the Holocaust in Hungary. She asserts that the U.S. has a strong and long-standing interest in helping Holocaust victims seek justice, and describes the sacrifice the U.S. made to bring the Holocaust to an end. The Constitution assigns responsibility over foreign relations to the elected branches, she says, and Congress and the executive branch have repeatedly sought to make it easier for plaintiffs to pursue Holocaust-era claims in U.S. courts. Recognizing an abstention doctrine in this case, Harrington asserts, would permit courts to overrule Congress’s foreign policy determinations and undo the primary purpose of the FSIA.
Chief Justice Roberts asks why the FSIA foreclosed the doctrine of international comity, given that the court stated in Verlinden that the FSIA did not appear to have affected the doctrine of forum non conveniens. And wouldn’t the plaintiffs’ theory call into question other doctrines, like the act of state doctrine and related theories? Harrington offers a two-part response: First, plaintiffs do not think there was an independent doctrine of comity-based abstention before the FSIA was enacted; and second, the dignitary interests of sovereign nations, with which comity-based abstention is concerned, were directly addressed by the FSIA, which therefore subsumes the abstention inquiry. Forum non conveniens, in contrast, is a generally applicable common law doctrine that the FSIA does not directly address and which therefore survives.
Roberts asks if there is any room for a safety valve, where the doctrine might apply in particularly sensitive international relations cases. Harrington responds that a number of safety valves already exist that respect the constitutional assignment of foreign policy authority, such as statutes of limitations, the act of state doctrine, the political question doctrine and forum non conveniens.
Justice Thomas then asks about how a hypothetical decision by the court to reverse the D.C. Circuit’s holding in Philipps would impact this case. Harrington says that the court should not reverse—but if it did, she suggests that there is a better argument that the takings at the center of this case are acts of genocide than the takings that are the focus of the Germany case. And there is an alternative argument for distinguishing the two cases as well, she adds. Some of the plaintiffs have argued that they were never Hungarian nationals and were never treated as such, and other plaintiffs were stripped of their nationality, and should similarly have a chance to make their claim.
Thomas asks Harrington to explain whether or not the plaintiffs preserved the “genocidal taking” argument. She says that they addressed it in the first appeal in the D.C. Circuit, despite the fact that Hungary chose not to include it as one of the questions presented in this case. Thomas then asks for Harrington’s view on a court staying FSIA proceedings. Harrington states that it would depend on the basis of the stay but that courts generally have an unflagging obligation to exercise jurisdiction that has been given by Congress except for limited circumstances, like pending proceedings in another forum, that do not apply in this case.
Justice Breyer probes whether abstention would be useful when a country has set up an alternative system for settling the types of claims at issue here. Harrington states that respondents do not think international comity-based abstention exists, but if the court disagrees, then deference to Congress or the well-considered views of the executive branch may be appropriate. Breyer shifts to the issue of reciprocity, asking whether U.S. courts should take cases even if every other nation approaches the issue a different way. And what about when applicable U.S. statutes and treaties demonstrate a strong interest in ignoring or displacing foreign sovereign acts or interests? Regarding reciprocity, Harrington makes the point that the expropriation exception does not exist elsewhere in the world in the context of foreign sovereign immunity, and so reciprocity risk is baked into the FSIA intentionally by Congress. And if claims have been displaced by Congress or the executive, then that displacement should stand.
Justice Alito tests Harrington’s commitment to her argument that the doctrine of international comity does not exist and is not available to the court even when allowing a case to proceed would cause grave foreign policy problems. “Is that really your argument?” he asks. Harrington replies that other doctrines would address that problem in many cases. Breyer presses further, pointing out that there could be cases that don’t fall within one of the other doctrines, yet could cause serious foreign policy problems. What then? Harrington reiterates that she thinks Congress already made the applicable foreign policy determinations and took into account comity when it enacted the FSIA. But as the respondents explained in their brief, Congress and the executive can step in and settle certain types of claims that they think pose a foreign policy risk, which they have not done here.
Alito asks Harrington about possible rulings—could it be that the court need only rule on whether the international comity doctrine exists in some form? Harrington replies that it would be helpful to provide more guidance on the scope of the doctrine, especially because the FSIA was designed to move away from the era of ad hoc determinations about exercising jurisdiction based on foreign policy considerations. But the factors proposed by Hungary and the United States, Harrington argues, are already accounted for in the FSIA and other aspects of foreign sovereign immunities doctrine. Alito follows up, pointing out that Congress could so provide if it never wanted comity-based abstention to apply. He asks why the court should take the lead on that. Harrington responds that the fact that the FSIA is “finely reticulated and frequently updated” strongly suggests that that statute should guide courts in determining when to exercise their jurisdiction.
Justice Sotomayor asks Harrington about subject matter jurisdiction. If, hypothetically, the court ruled that there is no customary international law for expropriation of a national—a requirement for the claims to fall within the FSIA’s expropriation exception—should the court still should go on to address the comity issue? Harrington responds that if the court didn’t have jurisdiction under a genocidal taking theory, it should still address the comity question, because the plaintiffs would still have an opportunity to establish subject matter jurisdiction in a different way. For example, the plaintiffs may be able to establish jurisdiction on the basis that they either were never Hungarian nationals or were stripped of their citizenship.
If the court decides that it would be inappropriate to say that international comity-based abstention is never available, Sotomayor asks, how should the court define the scope of the doctrine? Harrington answers that the doctrine should require some indication from an elected branch of government that there is a foreign policy concern with the exercise of jurisdiction. Courts, she says, should not abstain based on their own foreign policy judgments.
Justice Kagan asks Harrington about a case against Hungary in the Seventh Circuit involving very similar claims, which had potential damages amounting to 40 percent of Hungary’s GDP—an amount that could have bankrupted the country. Why shouldn’t the court be able to acknowledge that? Harrington responds that potential damage figures in the present case are purely speculative, because no class of plaintiffs has been certified and it is unclear how large one might be. Therefore, it would be inappropriate for a district court to speculate about damages on the front end of a case and decline to exercise its jurisdiction on that basis. Plus, the United States could become involved if the government thought damages could pose a real problem. Harrington then discusses how Hungary, unlike other similarly situated countries, has not taken steps to reach a comprehensive settlement with those who have World War II-related claims.
Kagan addresses that settlement question next. The United States’s amicus brief wrote that if the court does not recognize comity-based abstention, this would hamper the government’s efforts to encourage the establishment of redress and compensation mechanisms for human rights violations, which have worked to some extent with other countries. Kagan asks whether Hungary should be treated differently than countries that have established compensation mechanisms for victims of the Holocaust. Harrington agrees and points to the court’s opinion in Garamendi, in which the court explained that it was the filing of class action lawsuits related to Holocaust-era claims that spurred some of the settlement agreements that have been achieved.
Kagan then asks about § 1606 of the FSIA. Would plaintiffs-respondents’ position leave private litigants in a better position than foreign sovereigns? No, Harrington responds. She says that in two of the primary cases Hungary relies on, the Eleventh and Ninth Circuits—in Ugaro-Benages and Mujica, respectively—dismissed cases against foreign sovereigns at the request of the United States. And, she notes, most of the Holocaust-era class actions that have reached a substantive result in U.S. courts have been against private companies, not foreign sovereigns.
Next, Justice Gorsuch points out that takings are typically subject to domestic takings laws of the country in which they occurred and notes that in this suit plaintiffs-respondents have argued that the Holocaust and human rights form an exception to that rule. But, he adds, plaintiffs-respondents also argue that the typical rule would not apply here because Germany (in the case of Philipps) and Hungary stripped citizenship from its Jewish victims during the Holocaust. He asks Harrington why that point was not better developed in this case. Harrington responds that that point was not well developed because it is not one of the questions presented in the case, and was not a basis on which the D.C. Circuit relied in the two cases. The most appropriate way to resolve that question would be on remand, she suggests.
Justice Kavanaugh notes that international comity should not require a case-by-case foreign policy or international friction evaluation by courts. Why then, he asks, should the Supreme Court not adopt a bright-line rule that courts should abstain in cases where foreign defendants harm foreign parties in a foreign country and remedies are available in the foreign country? Harrington pushes back on Kavanaugh’s assumption that international comity predates the FSIA, arguing that Kavanaugh’s bright-line rule was displaced by the FSIA.
If such a doctrine exists, and applies to foreign private defendants as well, Kavanaugh asks Harrington, would your argument change? Harrington says that it would depend on the context. She looks to a line of cases Hungary cites under the Alien Tort Statute, which grants U.S. federal courts original jurisdiction over any civil action brought by a foreign national for a tort in violation of international law or a U.S. treaty, and which concerns suits against private defendants. In those cases, the court was determining whether it had jurisdiction—and by recognizing an inferred cause of action, the court was not countermanding a foreign policy decision made by Congress. In FSIA cases, though, courts would in fact be countermanding Congress’s foreign policy decision by abstaining from exercising jurisdiction that Congress provided.
Barrett asks why, in Harrington’s view, the doctrine of forum non conveniens survived the enactment of the FSIA. Was the doctrine incorporated into the statute itself, or did courts retain the power to develop it as common law doctrine? And if the latter, why wouldn’t the same be true of the doctrine of international comity abstention? The latter, Harrington answers. She explains that statutes tend not to displace generally applicable common law doctrines unless they were intended to do so. Since foreign sovereign immunity was a common law background doctrine that was displaced by the FSIA, any separate comity abstention doctrine was subsumed by the FSIA.
Barrett returns to the issue of the plaintiffs’ citizenship, askingwhether Harrington raised or preserved the point during lower court proceedings that some of the plaintiffs were not Hungarian nationals and that others were stripped of their citizenship by genocide. Harrington responds that plaintiffs did raise the issue in briefing on appeal.
Chief Justice Roberts then provides Harrington the opportunity to wrap up her argument. She hones in on her separation of powers point, arguing that Congress intended for U.S. courts to hear this type of claim and sought to eliminate case-specific foreign policy determinations when courts should exercise jurisdiction over foreign sovereigns. What’s more, in this case the executive branch has declined to request that the court abstain.
Genocide is itself a taking that violates international law and fits within the expropriation exception, she asserts: She concludes by saying that there is no way to read the text of the expropriation exception as withholding jurisdiction in this case, and no room in the FSIA’s comprehensive scheme to allow abstention based on international comity.
Roberts then provides Silbert, counsel for Hungary, an opportunity for rebuttal. He makes three points. First, he says that Harrington did not provide the court any real workable limiting principle or safety valve for her position and argues that highly problematic cases would be asserted. Foreign countries will be understandably upset if U.S. courts exercise jurisdiction in these types of cases, and this could expose the United States to similar litigation in foreign courts. Second, he reiterates that the FSIA, which is about withdrawing sovereign immunity, does not address the comity abstention, which predates the statute. And it did not displace all comity defenses, because then doctrines like the act of state doctrine would have been displaced too, and the Supreme Court held in Altmann that it was not.
Silbert ends on an ominous note: The U.S. government has sometimes fallen short of the ideals of justice that every nation should aspire to meet, he says. And some people, he goes on, say that the U.S. owes large debts for injustices committed in its territory. The remedies for the worst injustices committed by the U.S., Silbert concludes, should not be decided by a Hungarian judge applying Hungarian law from a courtroom in Budapest. For the same reasons, he says, the merits of this case should not be decided by an American judge applying American law in Washington, D.C.