976 F.3d 218
2d Cir.2020Background
- Plaintiffs (Ovaherero and Nama leaders and an association) sued the Federal Republic of Germany in the Southern District of New York seeking damages and other relief for colonial-era forcible takings, enslavement, and genocide in German South West Africa (now Namibia) circa 1884–1910.
- Plaintiffs alleged Germany expropriated land, livestock, personal property and other assets, deposited proceeds into the German treasury, and used commingled funds to acquire four New York properties used to house German officials and promote German culture.
- Plaintiffs also alleged certain human remains taken from Namibia ended up at the American Museum of Natural History (AMNH) in New York, and that one surviving “Blue Book” record is at the New York Public Library.
- Germany moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, invoking the Foreign Sovereign Immunities Act (FSIA); plaintiffs relied on the takings (28 U.S.C. § 1605(a)(3)) and commercial-activity exceptions.
- The district court dismissed for lack of jurisdiction, concluding plaintiffs failed to plead either the commercial-activity or takings exceptions; plaintiffs appealed. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA takings exception applies because "property exchanged for such property" is present in the U.S. | Germany’s expropriations were monetized and commingled into the German treasury; those fungible funds were later used to buy New York property, so the NY properties are "property exchanged for" expropriated property. | Plaintiffs cannot trace century‑old expropriated assets through commingled treasury funds to specific U.S. property; mere fungibility/presumption is insufficient. | Held: Plaintiffs’ tracing allegations fail under Helmerich’s valid‑claim standard; takings exception not established. |
| Whether the New York properties are present "in connection with a commercial activity" carried on by Germany in the U.S. | The properties house officials and cultural programs that promote German language/culture tied to commercial growth; contracts for maintenance are commercial contacts. | Housing diplomats and cultural promotion are sovereign functions, not commercial; maintenance contracts are insufficient to make presence "in connection" with commercial activity. | Held: Use is governmental/sovreign; "in connection" is construed narrowly; commercial-activity nexus not satisfied. |
| Whether the AMNH human remains are U.S.-present property "in connection with" German commercial activity | Germany sold or trafficked human remains to AMNH; trading crania is "trade and traffic" and thus commercial. | Any sale/shipment was historical and not part of an ongoing commercial activity carried on in the U.S. by Germany; gravamen of suit is land/expropriation, not a current sale. | Held: No adequate allegation that Germany currently carries on commercial activity in the U.S. connected to the remains; gravamen targets colonial expropriations, so exception fails. |
| Whether district court abused discretion by denying leave to amend (futility) | Plaintiffs could add allegations (e.g., museum sale, repatriations) to establish jurisdiction. | Proposed amendments still fail to cure jurisdictional defects; permitting amendment would be futile. | Held: Denial of leave to amend was proper because proposed amendments would not cure the FSIA jurisdictional deficiencies. |
Key Cases Cited
- Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 137 S. Ct. 1312 (2017) (FSIA takings exception requires a legally valid claim rather than a merely nonfrivolous argument)
- Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247 (2d Cir. 2000) (elements and nexus requirements for FSIA expropriation exception)
- Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006) ("in connection" requires a substantive/causal link between property presence and commercial activity)
- Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) (pre-Helmerich decision allowing a plausibility-based inference that proceeds from stolen property funded later assets)
- Pablo Star Ltd. v. Welsh Gov’t, 961 F.3d 555 (2d Cir. 2020) (distinguishing advertising/tourism‑promotion activities as commercial where analogous to private‑sector conduct)
- OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015) (use of "gravamen" to identify the core sovereign act giving rise to the suit)
- Republic of Arg. v. Weltover, Inc., 504 U.S. 607 (1992) (commercial activity defined as trade and traffic of the sort by which private parties engage)
- Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (foreign states presumptively immune absent an FSIA exception)