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Federal Appellate Court Allows Hungarian Holocaust Survivors to Pursue Claims

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On December 28, 2018, the Court of Appeals for the District of Columbia Circuit held in Simon v. Republic of Hungary that fourteen Hungarian Jewish survivors of the Holocaust could continue to pursue their claims against Hungary and its state-owned railway. In a 2–1 decision authored by Judge Millett, the D.C. Circuit reversed the district court decision that had dismissed the case on two alternative grounds—the principle of international comity and the doctrine of forum non conveniens. The D.C. Circuit thus remanded the long-running case for further proceedings.

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1 Simon v. Republic of Hungary, 911 F.3d 1172, 1176 (D.C. Cir. 2018).

2 Id. at 1176.

3 Id. at 1190.

4 Id. at 1175–76; Complaint at 3–4, Simon v. Republic of Hungary, 37 F. Supp. 3d 381 (D.D.C. 2014) (No. 10-cv-01770). The plaintiffs also sued a third defendant, Rail Cargo Hungaria Zrt. but the company was dismissed due to lack of personal jurisdiction. Simon v. Republic of Hungary, 37 F. Supp. 3d 381, 444 (D.D.C. 2014).

5 Simon, 911 F.3d at 1175.

6 Id.

7 Several years after the suit was filed, the district court dismissed the case against Hungary and MÁV for lack of subject matter jurisdiction, and the plaintiffs appealed. Simon, 37 F. Supp. 3d at 397. The D.C. Circuit then reversed in part the lower court's dismissal, relying on the FSIA's exception to sovereign immunity with respect to the expropriation of property taken in violation of international law. Simon v. Republic of Hungary, 812 F.3d 127, 147–48, 151 (D.C. Cir. 2016). The court held that the plaintiffs adequately alleged jurisdiction over MÁV as an initial matter, while noting that MÁV might later be able to rebut this jurisdiction if it showed that it no longer possessed either “the property or proceeds thereof.” Id. at 147. As to Hungary, the D.C. Circuit made this same point but further concluded that the plaintiffs had not adequately pled a commercial activity nexus with the United States. Id. at 147–48; see also de Cespel v. Republic of Hungary, 859 F.3d 1094, 1104–08 (2017) (further refining circuit case law with respect to what constitutes such a nexus). On remand, the plaintiffs amended their complaint to make more specific allegations with respect to Hungary and the commercial activity nexus. See Simon v. Republic of Hungary, 277 F. Supp. 3d 42, 52 (D.D.C. 2017).

8 Simon, 277 F. Supp. 3d at 54; see also id. at 52 n.6 (declining to address the issue of subject matter jurisdiction in light of its finding other grounds for dismissal).

9 Simon, 911 F.3d at 1175.

10 Id.

11 Id. at 1180–81 (second alteration in original) (emphasis in original) (omitting internal citations).

12 Id. at 1182.

13 Id. (emphasis in original) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)).

14 Id. at 1185.

15 Id. at 1183.

16 Id. at 1186–87.

17 Id. at 1187 (citing Simon, 277 F. Supp. 3d at 66–67).

18 Id. at 1187–89.

19 Id. at 1189 (internal citations omitted).

20 Id. at 1190 (Katsas, J., dissenting).

21 Id. at 1190–94 (Katsas, J., dissenting).

22 Notice of Appeal, Scalin v. Société Nationale des Chemins de Fer Français, No. 15-cv-03362, 2018 WL 1469015 (N.D. Ill. Apr. 24, 2018).

23 No. 15-cv-03362, 2018 WL 1469015, at *1 (N.D. Ill. Mar. 26, 2018).

24 Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 852 (7th Cir. 2015); see also Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (2012) (reaching a similar holding in a still-earlier case).

25 E.g., Dodge, William S., International Comity in American Law, 115 Colum. L. Rev. 2071, 2110 (2015) (surveying the concept of international comity and emphasizing its domestic legal grounding); Gardner, Maggie, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. 390, 391 (2017) (arguing for the abolition of the doctrine of forum non conveniens).

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
  • URL: /core/journals/american-journal-of-international-law
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