Holocaust Victims of v. Erste Group Bank , 695 F.3d 655 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2940
E RNO K ALMAN A BELESZ et al.,Œ
Plaintiffs-Appellees,
v.
E RSTE G ROUP B ANK AG,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
No. 11-2946
IN RE:
E RSTE G ROUP B ANK AG,
Petitioner.
Œ
This appeal had been captioned “Holocaust Victims of Bank
Theft v. Erste Group Bank.” We have reformed the caption to
reflect the first named plaintiff. Federal Rule of Civil Procedure
10(a) requires pleadings to name parties, not to presume the
merits of the plaintiffs’ claims, no matter how compelling they
may be.
2 Nos. 11-2940 & 11-2946
Petition for Writ of Mandamus
to the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
A RGUED JANUARY 11, 2012—D ECIDED A UGUST 22, 2012
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. A group of Holocaust
survivors and heirs of other Holocaust victims filed suit
against several banks alleging the banks participated in
expropriating property from Hungarian Jews during
the Holocaust. This case, and a parallel case against
the Hungarian national railway, have produced nine
separate pending appeals and mandamus petitions. In
this opinion, we address the plaintiffs’ claims against
defendant Erste Group Bank AG (“Erste”), which is a
privately owned Austrian bank. In separate opinions
released today, we address plaintiffs’ claims against two
other private banks, the Hungarian national bank, and
the Hungarian national railway.1
Invoking subject-matter jurisdiction under the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1330(a), the
Alien Tort Statute, 28 U.S.C. § 1350, and federal question
jurisdiction, 28 U.S.C. § 1331, plaintiffs allege six causes
1
See Abelesz v. OTP Bank, ___ F.3d ___ (7th Cir. 2012); Abelesz v.
Magyar Nemzeti Bank, ___ F.3d ___ (7th Cir. 2012).
Nos. 11-2940 & 11-2946 3
of action: genocide, aiding and abetting genocide,
bailment, conversion, constructive trust, and accounting.
Plaintiffs seek to have their case certified as a class
action and ask that each defendant bank be held jointly
and severally responsible for damages of approximately
$75 billion. The defendant banks moved to dismiss on
many grounds, including lack of subject-matter jurisdic-
tion and lack of personal jurisdiction. The district court
denied all motions to dismiss, motions to reconsider,
and motions for certification of interlocutory appeals
under 28 U.S.C. § 1292(b). Holocaust Victims of Bank Theft
v. Magyar Nemzeti Bank, 807 F. Supp. 2d 689 (N.D. Ill.
2011) (denying motions to dismiss); 807 F. Supp. 2d 699
(N.D. Ill. 2011) (denying motions for reconsideration,
clarification, and certification of interlocutory appeal).
Those denials pose some challenging problems of
appellate jurisdiction, as we explain in Abelesz v. OTP
Bank, ___ F.3d at ___. The appellate jurisdiction story
in this case begins with defendant Magyar Nemzeti
Bank (“MNB”), the Hungarian national bank, which
moved to dismiss based on a defense of sovereign im-
munity under the FSIA, 28 U.S.C. § 1604. The district
court denied MNB’s motion. MNB has appealed that
denial, and as we explain in Abelesz v. Magyar Nemzeti
Bank, it is well established that a denial of sovereign
immunity under the FSIA is a collateral order subject
to interlocutory appeal. ___ F.3d at ___. From that
one sound basis for appellate jurisdiction, MNB has
asked us to exercise pendent appellate jurisdiction over
the other arguments it made for dismissal. And in
turn, appellant Erste, like the other private banks, OTP
4 Nos. 11-2940 & 11-2946
and MKB, seeks here to stretch the narrow doctrine of
pendent appellate jurisdiction to include its own appeal
and the separate issues it seeks to raise. Erste, like
MKB and OTP, also filed a petition for writ of mandamus,
which it asks that we consider in the event that
appellate jurisdiction is lacking.
Erste’s appeal must be dismissed for lack of appellate
jurisdiction without reaching the merits of the issues
it raises.2 Erste’s petition for writ of mandamus is also
denied because, while we recognize the extraordinary
nature of this litigation, Erste has not demonstrated a
clear and indisputable right to relief on par with
MKB’s and OTP’s personal jurisdiction defense.
I. Appellate Jurisdiction
Erste seeks review of the district court’s denial of
its motion to dismiss. As a general rule, the district court
2
While we express no opinion on the merits of plaintiffs’ claims
under the Alien Tort Statute, we note for completeness that
the Supreme Court is currently considering two aspects of the
scope of the ATS that may be relevant to plaintiffs’ claims
here: (1) whether corporations are subject to tort liability for
violations of the law of nations, and (2) whether and under
what circumstances the ATS allows U.S. courts to recognize
a cause of action for violations of the law of nations occurring
within the territory of a sovereign other than the United
States. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111
(2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17,
2011) (No. 10-1491), calendared for reargument, 80 U.S.L.W. 3506
(Mar. 5, 2012).
Nos. 11-2940 & 11-2946 5
must issue a final order before an appellate court
has jurisdiction to entertain an appeal. See 28 U.S.C. § 1291.
Erste advances two arguments for hearing its appeal.
First, it argues that the district court’s denial of its
motion to dismiss based on the political question doctrine
can be appealed now under the collateral order doctrine.
Second, Erste argues, like all three of its co-defendants,
that we can exercise pendent appellate jurisdiction over
other issues because its appeal is “inextricably inter-
twined” with the appeals of its co-defendants.
Neither argument provides us with jurisdiction over
Erste’s appeal.
A. Collateral Order Doctrine
Erste, like MKB, urges that the district court’s rejection
of its political question defense, in this case based on
the United States’s involvement in the creation of the
Austrian General Settlement Fund (“GSF”), is a col-
lateral order that can be appealed immediately. This
argument is based on the U.S. government’s efforts to
“provide some measure of justice to the victims of the
Holocaust, and to do so in their remaining lifetimes.”
Stipulated J.A. 49 (Statement of Interest filed by U.S.
government). The United States has been party to two
international settlements that have provided approxi-
mately $8 billion for the benefit of victims of the Holo-
caust. One of these settlements, the GSF, was established
by the Austrian federal government and Austrian compa-
nies to make payments for Holocaust-era claims against
Austria and Austrian companies, excluding claims for
6 Nos. 11-2940 & 11-2946
restitution of works of art. To facilitate the creation and
funding of the GSF, the United States pledged to help
achieve “legal peace” for Austrian companies with
respect to Nazi-era claims in U.S. courts. The United States
government, based on its participation in the GSF, filed
in the district court a Statement of Interest pursuant to
28 U.S.C. § 517 urging dismissal of the claims against
Erste “on any valid legal ground(s).” Id. at 48. The gov-
ernment’s Statement of Interest did not argue for
dismissal on any specific basis.
In its opinion denying Erste’s motions for reconsid-
eration and certification of an interlocutory appeal pursu-
ant to 28 U.S.C. § 1292(b), the district court stated that
“based on the facts of this case at this juncture, there
remain questions as to whether the Government’s State-
ment of Interest is applicable and as to whether
Plaintiffs are eligible for the funds referenced in the
Statement of Interest.” 807 F. Supp. 2d at 706. Erste
argues that the district court misinterpreted the State-
ment of Interest, creating a new precondition to
dismissal when the filing of the Statement of Interest
should have been sufficient on its own to warrant
dismissal on political question grounds. Resolution of
this political question issue is separate from the merits
and not effectively reviewable on appeal from final judg-
ment, says Erste, since further litigation would under-
mine the “legal peace” offered to Austrian corporations
like Erste in exchange for their participation in the GSF.
An immediately appealable collateral order is one that
(1) conclusively determines the disputed question;
(2) resolves important issues separate from the merits;
Nos. 11-2940 & 11-2946 7
and (3) is effectively unreviewable on appeal from a
final judgment. Mohawk Industries, Inc. v. Carpenter, 130
S. Ct. 599, 605 (2009). As we note in our analysis of
MKB’s parallel argument in Abelesz v. OTP Bank, ___ F.3d
at ___, the collateral order doctrine is a narrow exception
to “the general rule that a party is entitled to a single
appeal, to be deferred until final judgment has been
entered . . . .” Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 868 (1994) (internal citation omitted); see
also Will v. Hallock, 546 U.S. 345, 350 (2006) (“we have
not mentioned applying the collateral order doctrine
recently without emphasizing its modest scope”). The
court must consider the entire category of similar cases
to determine whether applying the collateral order doc-
trine under § 1291 is appropriate. See Mohawk Industries,
130 S. Ct. at 605.
In applying these teachings, the D.C. Circuit deter-
mined that the denial of a motion to dismiss on political
question grounds was not an immediately appealable
collateral order, notwithstanding the fact that the first
two requirements for invoking the collateral order
doctrine were satisfied. Doe v. Exxon Mobil Corp., 473
F.3d 345, 349 (D.C. Cir. 2007). The D.C. Circuit took to
heart the Supreme Court’s admonition that “we have
meant what we have said; although the Court has been
asked many times to expand the ‘small class’ of col-
laterally appealable orders, we have instead kept it
narrow and selective in its membership.” Will, 546 U.S.
at 350; see also Doe, 473 F.3d at 349. The line between
those orders that are and are not appealable as col-
lateral orders probably owes more to history than to
8 Nos. 11-2940 & 11-2946
precise logical consistency, but the line has been drawn
in precedents that we must respect and follow as best
we can. Erste has not directed us to, and we have not
found, any case in which a federal appeals court held
that denial of a motion to dismiss on political question
grounds was immediately appealable as a collateral
order. Permitting an appeal from the denial of a motion
to dismiss based on political question grounds would
substantially expand the scope of the collateral order
doctrine. We follow the D.C. Circuit on this question
and hold that the collateral order doctrine does not
provide appellate jurisdiction over the denial of the
motion to dismiss based on Erste’s political question
defense. Doe, 473 F.3d at 353.3
3
Our determination that we lack appellate jurisdiction is not
based on the fact that Erste may have another chance to
present its political question argument in a summary judgment
motion or at trial, as urged by plaintiffs. That argument by
plaintiffs misunderstands the collateral order doctrine. For
example, a defendant whose motion to dismiss a claim under
42 U.S.C. § 1983 on grounds of qualified immunity is denied
often can appeal under the collateral order doctrine even
though the same issue could be raised again later in the
district court. We hold only that a denial of a motion to
dismiss on political question grounds is not among the “small
class” of orders that are collaterally appealable. See Will,
546 U.S. at 350-55 (holding that refusal to apply Federal Tort
Claims Act’s judgment bar was not appealable as collateral
order).
Nos. 11-2940 & 11-2946 9
B. Pendent Appellate Jurisdiction
As noted, defendant MNB, the Hungarian national
bank, has appealed the district court’s denial of its sover-
eign immunity defense under the FSIA. In its own
appeal, MNB raises other issues that it argues are
pendent to the FSIA immunity issue. We clearly have
jurisdiction over MNB’s appeal of the denial of
sovereign immunity and address the merits of that
defense in a separate opinion. From this one solid
foothold on appellate jurisdiction, Erste, like MKB and
OTP, argues that this court should exercise pendent
appellate jurisdiction over its own appeal because it is
“inextricably intertwined” with the appeals of its co-
defendants.
As we note in Abelesz v. OTP Bank, ___ F.3d at ___,
pendent appellate jurisdiction is also a narrow doctrine,
one that allows an appellate court “to review an other-
wise unappealable interlocutory order if it is ‘inex-
tricably intertwined with an appealable one.’ ” Research
Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d
973, 977 (7th Cir. 2010), quoting Montano v. City of
Chicago, 375 F.3d 593, 599 (7th Cir. 2004). This room for
the “inextricably intertwined” use of pendent appellate
jurisdiction should not be stretched to appeal normally
unappealable interlocutory orders that happen to
be related — even closely related — to the appealable
order. People of State of Ill. ex rel. Hartigan v. Peters, 861
F.2d 164, 166 (7th Cir. 1988); see also U.S. for Use of
Valders Stone & Marble, Inc. v. C-Way Const. Co., 909 F.2d
259, 262 (7th Cir. 1990) (“A close relationship between
10 Nos. 11-2940 & 11-2946
the unappealable order and the appealable order will
not suffice: it must be practically indispensable that we
address the merits of the unappealable order in order to
resolve the properly-taken appeal.”) (emphasis added). This
is so because resolving appeals from non-final decisions
is generally incompatible with the final judgment
rule embodied in 28 U.S.C. § 1291. McCarter v. Retirement
Plan for Dist. Managers of American Family Ins. Grp., 540
F.3d 649, 653 (7th Cir. 2008).
Given the narrow scope of the doctrine, pendent ap-
pellate jurisdiction is not available to Erste here. As we
decide in Abelesz v. Magyar Nemzeti Bank, we have
appellate jurisdiction over MNB’s appeal of the district
court’s denial of sovereign immunity, but we decline to
exercise pendent appellate jurisdiction over the other
issues that MNB itself seeks to raise. ___ F.3d at ___. Erste,
like MKB and OTP, enters the picture by arguing that
its appeal is inextricably intertwined with those of the
other defendants, especially MNB. In support, Erste
notes that (1) the complaint does not differentiate
among the defendants, (2) defendants’ motions to
dismiss incorporated one another’s grounds and argu-
ments, (3) the district court addressed and rejected de-
fendants’ motions to dismiss in one opinion, and
(4) defendants’ briefs to this court once again in-
corporate one another’s grounds and arguments. Erste
concludes by arguing that resolution of all of the
pending appeals simultaneously will promote judicial
economy.
Erste’s reliance on judicial economy to justify pendent
party appellate jurisdiction is misplaced. The Supreme
Nos. 11-2940 & 11-2946 11
Court has rejected this justification and essentially
barred any pendent party appellate jurisdiction. See
Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)
(“[T]here is no ‘pendent party’ appellate jurisdiction of
the kind the Eleventh Circuit purported to exercise.”);
McCarter, 540 F.3d at 653 (“Swint itself held that a court
of appeals had erred in invoking pendent appellate
jurisdiction, because ‘judicial economy’ is no warrant
for disregarding the statutory final-decision rule.”).4
Even if we were dealing with related issues raised by
one appellant, the varied issues raised do not concern
“the same single issue.” See Research Automation, 626 F.3d
at 977 (“Both the denial of the injunction and the
district court’s transfer order concern the same single
issue: whether this case should be litigated in Illinois or
in Virginia.”). Nor are they “the head and tail of the
same coin.” Hartigan, 861 F.2d at 166. While the issues
that Erste seeks to appeal are closely related to the issues
its co-defendants seek to appeal, that relationship
does not help because we do not have jurisdiction over
those issues, either. The pivotal point is that Erste’s
4
Erste points out that we exercised pendent party appellate
jurisdiction over the malpractice claim of one litigant that
was “entwined” with an indemnity claim of another litigant
properly before the court because doing so served the broader
purposes of efficiency and consistent resolution of the case.
Greenwell v. Aztar Indiana Gaming Corp., 268 F.3d 486, 491
(7th Cir. 2001). We have since noted that Swint rejected “judicial
economy” as an appropriate basis for an appellate court
to exercise pendent jurisdiction. McCarter, 540 F.3d at 653.
12 Nos. 11-2940 & 11-2946
issues are not so “inextricably intertwined” with MNB’s
sovereign immunity defense, which we have jurisdic-
tion to consider, as to make it “practically indispensable”
that we address their merits at the same time. See
Swint, 514 U.S. at 51; Valders Stone & Marble, 909 F.2d at
262. Exercising pendent appellate jurisdiction over
Erste’s appeal would not be consistent with the statutes
and case law establishing the final-judgment rule.
II. Mandamus Jurisdiction
Without appellate jurisdiction over the issues that Erste
seeks to raise in No. 11-2940, that appeal must be dis-
missed. After objections were raised to appellate juris-
diction, Erste also filed a petition for a writ of mandamus
to compel the district court to dismiss the claims
against it. As a general rule, appellate courts are not in
the business of reviewing routine denials of motions
to dismiss — not by using pendent appellate jurisdiction,
not by using the collateral order doctrine, and certainly
not by issuing a writ of mandamus. The final judg-
ment rule exists to help avoid piecemeal litigation and
encroachment on the special role district judges play
in managing ongoing litigation. See Mohawk Industries,
130 S. Ct. at 605. Furthermore, until a case is over,
litigants do not know whether an individual error
actually matters, and appellate courts usually benefit
from having an entire record in front of them.
Nevertheless, this court is authorized to issue a writ
of mandamus pursuant to the All Writs Act, 28 U.S.C.
§ 1651(a). Mandamus is a “drastic remedy traditionally
Nos. 11-2940 & 11-2946 13
used to confine a lower court to the lawful exercise of
its jurisdiction or to compel it to exercise its authority
when it has a duty to do so.” United States v. Lapi, 458
F.3d 555, 560-61 (7th Cir. 2006); see also Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (“Only excep-
tional circumstances, amounting to a judicial usurpation
of power, will justify the invocation of this extra-
ordinary remedy.”). Three conditions must be satisfied
for the writ to issue. First, the party seeking the writ
must demonstrate that the challenged order is not effec-
tively reviewable at the end of the case, that is, without
the writ it will suffer irreparable harm. Second the
party seeking the writ must demonstrate a clear right to
the writ. Third, the issuing court must be satisfied that
issuing the writ is otherwise appropriate. See Cheney v.
U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380-81
(2004); In re Sandahl, 980 F.2d 1118, 1119 (7th Cir. 1992)
(“[T]he petitioner must show irreparable harm (or, what
amounts to the same thing, the lack of an adequate
remedy by way of direct appeal or otherwise)
and a clear right to the relief sought.”). Although these
demanding hurdles “are not insuperable,” see Cheney
542 U.S. at 381 (granting writ), we conclude that this
exacting standard is not satisfied here with respect to
the district court’s denial of Erste’s motion to dismiss
on political question grounds.
As we acknowledge in Abelesz v. OTP Bank, the nature
of this litigation is extraordinary, given its astronomical
financial stakes and appreciable foreign policy dimen-
sions. ___ F.3d at ___. We also are aware of the im-
portance of the case, at many levels, to the plaintiffs.
14 Nos. 11-2940 & 11-2946
In granting writs to MKB and OTP, however, we note
that it is the confluence of these specific factors, together
with the crystal clarity of the personal jurisdiction
issue, that makes granting writs of mandamus appro-
priate. In Erste’s case, we can assume that the same
financial stakes may present the same pressure to settle
if a class is certified, meaning the district court’s order
might not be effectively reviewable at the end of the
case. Such pressure is often present in class actions and
other big cases, however, and by itself does not warrant
issuance of a writ of mandamus. The problem for Erste
is that it has not shown a similarly clear and indis-
putable right to the issuance of the writ.
Erste’s petition for a writ of mandamus seems
to be based on the same political question doctrine argu-
ment it asked us to review under the collateral order
doctrine, but it is a little foggy on exactly why Erste has
a “clear and indisputable right” to the writ. Erste’s
petition makes two related arguments. The first is that
the district court abused its discretion by determining
that the U.S. government’s Statement of Interest would
apply to Erste and call for dismissal only if the plaintiffs
in this action are eligible for compensation under
the Austrian settlement fund, the GSF. Second, Erste
contends that the district court usurped the province of
the executive branch of the U.S. government by de-
clining to defer to the Statement of Interest and re-
fusing to dismiss the claims against Erste.
In its opinion denying Erste’s motions for reconsid-
eration and certification of an interlocutory appeal pur-
Nos. 11-2940 & 11-2946 15
suant to 28 U.S.C. § 1292(b), the district court stated
that “based on the facts of this case at this juncture,
there remain questions as to whether the Government’s
Statement of Interest is applicable and as to whether
Plaintiffs are eligible for the funds referenced in the
Statement of Interest.” 807 F. Supp. 2d at 706. In so
ruling, Erste argues, the district court misinterpreted
the Statement of Interest and created a new condition
for dismissal when the filing of the Statement of Interest
should have been sufficient on its own to warrant
dismissal under the political question doctrine. Erste
asserts it was precisely such an attempt by a district
court to “renegotiate” the terms of the similar German
Foundation agreement to afford Holocaust victims
protections not provided thereunder that led the
Second Circuit to issue a writ of mandamus in In re Aus-
trian and German Holocaust Litigation, 250 F.3d 156 (2d
Cir. 2001).5
In that case, all but one of the named plaintiffs in
a putative class action moved in the district court
for an order pursuant to Federal Rule of Civil Proce-
dure 41(a) allowing them to dismiss their claims
against the German bank defendants voluntarily and
5
Erste also argues that the Second Circuit found that the
district court had “usurped power” by requiring “the German
legislature to make a finding of legal peace and to do so
before its summer recess.” 250 F.3d at 164. The Second Circuit
did find that the district court had “usurped power,” but
from the German legislature, not from the executive branch
of the U.S. government.
16 Nos. 11-2940 & 11-2946
with prejudice, but without prejudice to the rights of
any absent members of the putative class to assert their
own claims in any forum. 250 F.3d at 159. As in this
case, the U.S. government filed a Statement of Interest
urging dismissal. Despite the motions for voluntary
dismissal by plaintiffs, and without objection by the
defendants, the district court refused to dismiss
the moving plaintiffs’ claims. See id. at 159-60. After
receiving a motion for reconsideration, the district court
dismissed the case with two stipulations that were at
the heart of plaintiffs’ petition for a writ of mandamus.
The Second Circuit noted that it is “beyond the
authority of the courts to interfere with the Executive
Branch’s foreign policy judgments.” Id. at 164. Erste
argues that the district court’s “similar attempt” to condi-
tion Erste’s dismissal on whether the plaintiffs can be
compensated by the Austrian GSF is “similarly well
beyond the bounds of the District Court’s authority.”
The Second Circuit mentioned the executive branch’s
foreign policy interests, but did so in a discussion of
the separation of powers. 250 F.3d 163-64. It based its
decision to issue a writ of mandamus not on the U.S.
executive branch’s foreign policy interests, but rather
on two ways in which the district court order interfered
with the autonomy of the German legislature. First, the
district court seemed to be requiring the German legisla-
ture to make a finding of “legal peace” and to do so
Nos. 11-2940 & 11-2946 17
before its summer recess. Id. at 164.6 As the Second
Circuit rightly noted, “It would be beyond the au-
thority of the court so to trammel on the prerogatives
of a legislature in the United States. Much less does
the court have the power to require such actions of the
legislature of a foreign sovereign.” 250 F.3d at 164.
Second, the district court had stated that the plaintiffs
could file a Rule 60(b) motion to vacate the dismissal
order if the criteria of the German Foundation were not
revised as contemplated in a declaration made by an
attorney involved in both the litigation and the negotiation
of the U.S.-German agreement. The Second Circuit noted
that even if the declaration gave such an assurance
(which the court found it did not), such a provision
took the court well beyond the bounds of its authority
because the criteria of the German Foundation
were governed under German law. The district court’s
language appeared to indicate that if the German legisla-
ture failed to change German law, the district court could
6
Under the terms of the agreement creating the German
Foundation, no funds could be distributed to claimants until
the attainment of “legal peace,” i.e., the final dismissal of
pending H olocaust-related litigation against German
companies in the U.S. courts and a commitment by the United
States to file in any pending or future Holocaust litigation
against Germany companies in a U.S. court a “Statement of
Interest” informing that court that the foreign policy interests
of the United States call for the German Foundation to be
recognized as the exclusive forum for the resolution of
such claims. See 250 F.3d at 159.
18 Nos. 11-2940 & 11-2946
or would vacate the dismissals. As the Second Circuit
again noted, “It is not the office of the court, however, to
decide what legislation should be enacted; and
the refusal of a legislature, within the scope of its own
authority, to enact or change a law is not a valid ground
for vacatur of a final judgment.” Id. at 165. The district
court’s seeming instructions to the German legisla-
ture were the judicial usurpation of power justifying
the extraordinary remedy of mandamus, not its
purported “renegotiation” of the German Foundation
agreement, as Erste urges.
Erste also argues that the U.S. government’s Statement
of Interest itself unconditionally requires immediate
dismissal. Erste supports this argument by citing In re
Assicurazioni Generali, S.p.A., 592 F.3d 113, 119-20 (2d Cir.
2010); Whiteman v. Dorotheum GmbH & Co KG, 431 F.3d
57, 59 (2d Cir. 2005); In re Nazi Era Cases Against German
Defendants Litigation, 129 F. Supp. 2d 370, 383, 386 (D.N.J.
2001); and Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C.
Cir. 2005). We disagree.
First, Erste simply mischaracterizes the Statement
of Interest. The Statement of Interest does not urge dis-
missal, full stop. Rather, it says that the United States
recommends dismissal of the claims against Erste on
any valid legal grounds. The Statement of Interest also
says that “the United States takes no position on the
merits of the underlying legal claims or arguments ad-
vanced by plaintiffs or by defendants . . . .” Stipulated J.A.
48. Furthermore, “The United States does not suggest that
its policy interests concerning the Fund in themselves provide
Nos. 11-2940 & 11-2946 19
an independent legal basis for dismissal, but will reinforce
the point that U.S. policy interests favor dismissal
on any valid legal ground.” Def.-Appellant’s Separate
Addendum 316 (emphasis added). The Supplemental
Statement of Interest, of which Erste urges us to take
judicial notice, reiterates that position: “In sum, while the
United States does not take a legal position on any claims or
defenses before the Court, the United States reiterates that
it would be in the foreign policy interests of the United
States for claims agains [Erste] to be dismissed on any
valid legal ground.” Supp. Statement of Interest 3, Sept. 30,
2011, ECF No. 35-2 (emphasis added). The Statement
of Interest deserves the respect of the district court and
this court, but the Statement of Interest does not itself
compel dismissal of the claims against Erste.
Neither Whiteman nor Hwang Geum Joo demonstrates
that Erste has a clear right to the issuance of a writ of
mandamus in this case. In Whiteman, when the govern-
ment first presented its Statement of Interest to the
district court, it did not urge the district court to rest on
the foreign policy interest of the United States as an
independent legal basis for dismissal. When the case
reached the Second Circuit, however, the United States
no longer offered that qualification and instead asserted
that deference to the views of the executive branch on
the United States’s foreign policy interests supported
dismissal of the case. The Second Circuit found that
deference was appropriate “[i]n the circumstances pre-
sented in this case . . . .” 431 F.3d at 69. That is not the
situation in the present case. Rather, the Statement of
Interest specifically stated that it was not suggesting
20 Nos. 11-2940 & 11-2946
that the policy interests in themselves provide an inde-
pendent legal basis for dismissal.
In Hwang Geum Joo, women from China, Taiwan, South
Korea, and the Philippines sued Japan alleging they
were abducted and forced into sexual slavery by the
Japanese Army prior to and during World War II. The
D.C. Circuit noted that in order to adjudicate plaintiffs’
claims, the court would have to resolve plaintiffs’
dispute with Japan over the meaning of the treaties
between Japan and Taiwan, South Korea, and China. 413
F.3d at 52. The question whether the war-related claims
of foreign nationals were extinguished when the gov-
ernments of their countries entered into peace treaties
with Japan was one that concerned the United States
only with respect to her foreign relations. The court
thus determined that the case was nonjusticiable under
the political question doctrine. Id. at 52-53.
Furthermore, the fact that the Second Circuit and the
U.S. District Court for the District of New Jersey have
dismissed cases where the government submitted a
Statement of Interest also does not demonstrate that
Erste has a clear and indisputable right to mandamus in
this case. See Cheney, 542 U.S. at 381 (petitioner seeking
writ of mandamus must satisfy the burden of showing
that his right to issuance of the writ is clear and indis-
putable). These cases provide strong support for Erste’s
political question argument, but other circuits have
found the political question doctrine did not apply in
similar circumstances. See, e.g., Ungaro-Benages v. Dresdner
Bank AG, 379 F.3d 1227, 1235-41 (11th Cir. 2004) (holding
Nos. 11-2940 & 11-2946 21
that political question doctrine did not apply, despite
existence of German Foundation Agreement, but that
abstention under international comity doctrine was
appropriate). The district court may very well be wrong
on the political question issue, and that may be
sufficient for Erste to obtain a reversal on direct appeal.
We express no view on the question except to say that
the answer is not so clear that we should depart
from orderly appellate practice, which requires a
final judgment, and issue the extraordinary writ of manda-
mus. To issue a writ of mandamus under such circum-
stances “would undermine the settled limitations upon
the power of an appellate court to review interlocutory
orders.” Will v. United States, 389 U.S. 90, 98 n.6 (1967);
In re Sandahl, 980 F.2d at 1120 (“Mandamus, in contrast
[to a collateral-order appeal], is a discretionary writ;
and the standard of review is narrower than in an
ordinary appeal.”).
Finally, Erste makes much of the fact that plaintiffs’
complaint alleges Holocaust-era wrongdoing by Hungarian
banks while it is an Austrian bank, covered by the U.S.-
Austrian Agreement. Erste is a defendant in this
litigation, however, because in 2003 it acquired the Hun-
garian bank that, according to the complaint, had tainted
assets. On this point Erste makes two arguments. First,
Erste is the defendant and therefore, since Erste claims
an entitlement to legal peace under the U.S.-Austrian
agreements, we should not reach the issue of the subsid-
iary at all. Second, Erste argues that the U.S.-Austrian
agreements are different from the U.S.-German Agree-
ment in an important way. The U.S.-German
22 Nos. 11-2940 & 11-2946
agreement defines who is a German subsidiary of a
German company in terms of whether the acquisition
had been completed as of the effective date of the U.S.-
German agreement. Austria, however, negotiated dif-
ferent language so that the U.S.-Austrian agreements
define “Austrian companies” to include “[e]nterprises
situated outside the borders of the present-day Republic
of Austria in which Austrian enterprises . . . at any
given time, had or have a direct or indirect financial par-
ticipation of at least 25 percent.” Supp. Statement
of Interest n.1, Sept. 30, 2011, ECF No. 35-2, quoting U.S.-
Austrian Agreement (alterations and emphasis by
United States). This definition, Erste argues, is not tied
to the date of the creation of the General Settlement
Fund. Based on this definition, Erste argues that the
legal peace that it claims it is entitled to also extends
to its Hungarian subsidiary.
In oral argument we asked if Erste’s position is that
Austrian banks and other corporations that participated
in the Agreement and the Fund are in essence able
to “vaccinate” entities that face Holocaust liabilities in
other countries by acquiring them. Erste agreed with
this assessment, stating that “the issue has been
resolved, for better or worse, by an executive agree-
ment.” This vaccination theory is extraordinary. Followed
to its logical conclusion, it would permit a covered Aus-
trian entity to approach a foreign entity that found itself
facing Holocaust-era claims in a U.S. court, acquire
that foreign entity, and then assert that the U.S.-Austrian
agreement guarantees that foreign entity legal peace. To
be convinced that this is in fact what the U.S. govern-
Nos. 11-2940 & 11-2946 23
ment thinks the U.S.-Austrian agreements provide, we
would require a clearer and more persuasive state-
ment than a conclusory and ambiguous footnote in
a supplemental Statement of Interest filed in an
unrelated case.
Conclusion
Because we lack appellate jurisdiction under either
the collateral order doctrine or pendent appellate juris-
diction, Erste’s appeal in No. 11-2940 is D ISMISSED.
Because Erste has failed to demonstrate that it has a
clear and indisputable right to the issuance of a writ
of mandamus, its petition for a writ of mandamus in
No. 11-2946 is D ENIED.
8-22-12