Alan Philipp v. Federal Republic of Germany (ORDER IN SLIP OPINION FORMAT)
925 F.3d 1349
D.C. Cir.2019Background
- Plaintiffs are Holocaust-era claimants alleging that foreign sovereigns (notably Germany and Hungary) engaged in genocidal takings of property during WWII and seek to invoke the FSIA expropriation exception to sue in U.S. courts.
- The D.C. Circuit panel decisions (Simon I, Simon II, and Philipp) treated genocidal takings as falling within the FSIA expropriation exception, allowing suits for historic property losses in U.S. courts while limiting recoverable damages to property (not personal injury or death).
- The panel rulings also rejected defenses grounded in exhaustion of foreign remedies, international-comity abstention, and forum non conveniens for such FSIA expropriation claims.
- Judge Katsas dissented from the denial of rehearing en banc, arguing these holdings improperly convert U.S. courts into tribunals adjudicating foreign war crimes, conflict with international-law principles, and depart from longstanding doctrines limiting suits against foreign sovereigns.
- The dissent emphasizes a statutory-interpretation and foreign-policy problem: the expropriation exception should be read in context to concern takings under international takings law (cross-border expropriations), not domestic human-rights violations like genocide, and exhaustion/comity defenses should remain available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FSIA §1605(a)(3) cover property taken as part of genocide? | Simon/claimants: Yes — genocide can include deliberate takings aimed at destroying a group, so expropriation exception applies. | Germany/other states: No — the provision targets international takings law (sovereign-to-foreign‑national takings), not domestic human-rights violations like genocide. | Panel held it covers genocidal takings (Simon I); en banc rehearing denied. |
| Are exhaustion and comity-based abstention defenses available in FSIA expropriation cases? | Claimants: Not required; FSIA’s scheme displaces such defenses for immunity exceptions. | Defendants/United States amicus: Exhaustion/comity remain appropriate to respect foreign forums and foreign‑policy interests. | Panel held exhaustion/abstention unavailable; dissent argues FSIA does not foreclose them and they should apply. |
| Can plaintiffs recover for deaths/personal injuries alleged as part of genocide under FSIA? | Claimants: Seek relief for property taken; recognize FSIA §1605(a)(5) limits recovery for personal injury to harms occurring in the U.S. | Defendants: Plaintiffs cannot recover for deaths/personal injuries absent statutory authorization; expropriation exception is limited to property. | Court limited recovery to property losses; personal-injury/death claims not covered unless occurring in U.S. under separate exception. |
| Should the panel’s approach be revisited en banc based on foreign-relations and precedent concerns? | Claimants: Panel approach stands; federal courts may adjudicate these property claims. | Dissent/Appellants: En banc review warranted to avoid creating broad human-rights jurisdiction, circuit splits, and to heed Executive Branch views. | Rehearing en banc denied; dissent (Katsas) calls for en banc reconsideration. |
Key Cases Cited
- Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) (Simon I) (held expropriation exception covers genocidal takings)
- Simon v. Republic of Hungary, 911 F.3d 1172 (D.C. Cir. 2018) (Simon II) (reaffirmed Simon I and rejected exhaustion/comity defenses)
- Philipp v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir. 2018) (panel) (applied Simon I to WWII-era art claims and rejected exhaustion)
- Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 137 S. Ct. 1312 (2017) (interpreting FSIA’s codification of restrictive theory of immunity)
- Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) (refused to find implied waiver of immunity for Nazi-era slave labor)
- Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012) (required exhaustion in Holocaust-era FSIA claims; illustrative of circuit split)
- Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (en banc) (considered exhaustion for ATS claims; supportive authority for requiring exhaustion)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (addressed extraterritorial limits on ATS claims)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (acknowledged international-law exhaustion principles may be considered for federal common‑law international claims)