Rosalie Simon v. Republic of Hungary , 911 F.3d 1172 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2018 Decided December 28, 2018
No. 17-7146
ROSALIE SIMON, ET AL.,
APPELLANTS
v.
REPUBLIC OF HUNGARY AND MAGYAR ALLAMVASUTAK ZRT.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01770)
Paul G. Gaston argued the cause for appellants. With
him on the briefs were Charles S. Fax, Liesel J. Schopler, L.
Marc Zell, and David H. Weinstein.
Samuel J. Dubbin was on the brief for amici curiae
Holocaust Survivors Foundation USA, Inc., et al. in support of
plaintiffs-appellants.
Geoffrey M. Klineberg and Daniel S. Severson were on the
brief for amicus curiae Professor William S. Dodge in support
of plaintiffs-appellants.
Gregory S. Silbert argued the cause for appellees. With
him on the brief was Konrad L. Cailteux.
2
Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Circuit Judge KATSAS.
MILLETT, Circuit Judge: “Nowhere was the Holocaust
executed with such speed and ferocity as it was in Hungary.”
Simon v. Republic of Hungary, 812 F.3d 127, 133 (D.C. Cir.
2016) (internal quotation marks and citation omitted). More
than 560,000 Hungarian Jews—68% of Hungary’s pre-war
Jewish population—were killed in one year. Id. at 134. In
1944 alone, a concentrated campaign by the Hungarian
government marched nearly half a million Jews into Hungarian
railroad stations, stripped them of all their personal property
and possessions, forced them onto trains, and transported them
to death camps like Auschwitz, where 90% of them were
murdered upon arrival. Id. at 133–134.
Fourteen of the very few survivors of the Hungarian
government’s pogrom (collectively, “Survivors”), including
four United States citizens, filed suit against the Republic of
Hungary and Magyar Államvasutak Zrt. (“MÁV”), Hungary’s
state-owned railway company. As relevant here, the
litigation seeks compensation for the seizure and expropriation
of the Survivors’ property as part of the Hungarian
government’s genocidal campaign. See Simon, 812 F.3d at
134.
In a prior appeal in this case, we held that Hungary’s and
MÁV’s seizure of the Survivors’ property was an act of
genocide, and that the Survivors had adequately alleged
jurisdiction over MÁV’s acts of genocidal expropriation in
violation of international law. See Simon, 812 F.3d at 142,
3
147–148. Although the Survivors’ first complaint had not
sufficiently alleged that jurisdiction existed over Hungary, we
noted that they might yet be able to make that showing. See
id. at 148.
On remand, the district court dismissed the case on two
alternative grounds, both of which are at issue here. First, the
court held that, regardless of whether the Survivors’ claims
against Hungary amounted to expropriation, principles of
international comity required that the Survivors first try to
adjudicate their claims in Hungary. Second, the court held
that, under the doctrine of forum non conveniens, a Hungarian
forum would be so much more convenient for resolution of the
claims as to clearly override the Survivors’ choice to litigate
the case in the United States.
The district court erred on both fronts. Our recent
decision in Philipp v. Federal Republic of Germany, 894 F.3d
406 (D.C. Cir. 2018), which post-dated the district court’s
ruling, squarely rejected the asserted comity-based ground for
declining statutorily assigned jurisdiction. With respect to the
dismissal on forum non conveniens grounds, the district court
committed material legal errors at each step of its analysis. A
proper application of the relevant factors leaves no basis for
designating Hungary the strongly preferred location for this
litigation because Hungary is not home to any identified
plaintiff, has not been shown to be the source of governing law,
lacks a process for remediation recognized by the United States
government, and is not the only location of material amounts
of evidence. There is, in short, far too little in this record to
designate Hungary a more convenient forum than the one
chosen by the Survivors. For those reasons, we reverse and
remand for further proceedings consistent with this opinion.
4
I
A
The terrible facts giving rise to this litigation are recounted
at length in our first opinion in this case. See Simon, 812 F.3d
at 132–134. In brief, Hungary “began a systematic campaign
of [official] discrimination” against its Jewish population “as
early as 1941.” Id. at 133. At that time, Hungary began
rounding up tens of thousands of Jewish citizens and refugees
who had fled from surrounding countries, and sending them to
internment camps near the Polish border. Id.; Second
Amended Class Action Complaint ¶ 105, Simon v. Republic of
Hungary, No. 10-1770 (D.D.C. June 13, 2016), ECF No. 118
(“Second Am. Compl.”).
Then, in 1944, the Nazis occupied Hungary and installed
a “fanatically anti-Semitic” regime. Simon, 812 F.3d at 133.
Over the Summer of 1944, Hungary rounded up more than
430,000 Jews for deportation to Nazi death camps, primarily
Auschwitz. Second Am. Compl. ¶ 120. With tragic
efficiency, Hungarian government officials, including MÁV
employees, created a schedule of deportations, along with
planned routes and destinations, with four trains running daily.
Id. ¶ 117. Seventy to ninety people were packed into an
individual freight car, so that each train transported 3,000 to
3,500 Hungarian Jews to almost certain death. Id. Before
the Jews were crammed into the trains, MÁV officials robbed
them of all their possessions. Id. ¶ 112. According to the
Survivors, “[w]ithout the mass transportation provided by the
5
Defendant [MÁV], the scale of the Final Solution in Hungary
would never have been possible.” Id. ¶ 133.
B
The United States traditionally afforded foreign sovereign
nations immunity from suit in domestic courts as a matter of
“grace and comity.” Republic of Austria v. Altmann, 541 U.S.
677, 689 (2004). Given the Political Branches’ constitutional
expertise in foreign affairs, courts would historically “defer[]
to the decisions of the political branches—in particular, those
of the Executive Branch—on whether to take jurisdiction over
particular actions against foreign sovereigns and their
instrumentalities.” Id. (internal quotation marks omitted); see
also United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 319–320 (1936). But over time, conflicting theories on
when immunity should apply created “disarray” in the State
Department’s immunity decisions. Altmann, 541 U.S. at 690.
Congress responded in 1976 by enacting the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq.
The FSIA is a “comprehensive statute containing a set of legal
standards governing claims of immunity in every civil action
against a foreign state or its political subdivisions, agencies, or
instrumentalities.” Altmann, 541 U.S. at 691 (internal
quotation marks omitted); see also id. (“Congress sought to
remedy these problems by enacting the FSIA.”). Congress
enacted guiding “principles” so that the “courts of the United
States” could decide “the claims of foreign states to immunity”
on the terms prescribed by Congress. 28 U.S.C. § 1602; see
Altmann, 541 U.S. at 691 (“The Act * * * transfers primary
responsibility for immunity determinations from the Executive
to the Judicial Branch.”).
6
The FSIA enumerates specific exceptions to foreign
sovereign immunity and confers federal-court jurisdiction over
foreign sovereigns in qualifying cases. 28 U.S.C. §§ 1605–
1605A. Courts may hear a case only if “one of the exceptions
applies” because “subject-matter jurisdiction in any such action
depends on that application.” Altmann, 541 U.S. at 691
(internal quotation marks omitted). Congress was also
explicit that, if an exception applies, “[a] foreign state shall not
be immune from the jurisdiction of courts of the United States
or of the States.” 28 U.S.C. § 1605(a).
This case involves the FSIA’s expropriation exception to
foreign sovereign immunity. Section 1605(a)(3) waives
foreign sovereign immunity in cases asserting that “rights in
property [were] taken in violation of international law” if
“that property or any property exchanged for such property”
either (i) “is present in the United States in connection with a
commercial activity carried on in the United States by the
foreign state,” or (ii) “is owned or operated by an agency or
instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the
United States[.]” 28 U.S.C. § 1605(a)(3).
Application of that exception hinges on a three-part
inquiry:
[1] the claim must be one in which “rights
in property” are “in issue”;
[2] the property in question must have been
“taken in violation of international law”;
and
[3] one of two commercial-activity nexuses
with the United States must be satisfied.
Simon, 812 F.3d at 140.
7
C
1
The Survivors are four United States citizens—Rosalie
Simon, Charlotte Weiss, Rose Miller, and Ella Feuerstein
Schlanger—as well as Helen Herman and Helena Weksberg
from Canada; Tzvi Zelikovitch, Magda Kopolovich Bar-Or,
Zehava Friedman, Yitzhak Pressburger, Alexander Speiser,
Ze-ev Tibi Ram, and Moshe Perel from Israel; and Vera
Deutsch Danos from Australia. Second Am. Compl. ¶¶ 5–9,
14, 22, 27, 28, 39, 41, 49, 65, 73, 81. 1 Seeking some measure
of compensation for their injuries, the Survivors filed suit
against the Republic of Hungary, MÁV, and Rail Cargo
Hungaria Zrt., a private railway company that is the successor-
in-interest to the former cargo division of MÁV. Simon v.
Republic of Hungary, 37 F. Supp. 3d 381, 385 (D.D.C. 2014).
The Survivors claim that “their possessions and those of their
families were taken from them” by the defendants as they
boarded trains destined for concentration camps. Id. at 386
(internal quotation marks omitted). 2
There is no dispute that Hungary and MÁV are,
respectively, a foreign sovereign and an instrumentality of a
1
Plaintiff Tzvi Zelikovitch passed away while the case was
pending, but his three children, who are all Israeli citizens, “have
succeeded to his rights, interests and entitlements.” Second Am.
Compl. at 3 n.1.
2
The Survivors also seek to certify a class composed of
Holocaust survivors similarly wronged by the Hungarian
government. The district court has not yet addressed the request for
class certification. See Order, Simon v. Republic of Hungary, No.
10-1770 (D.D.C. Nov. 15, 2010), ECF No. 9.
8
foreign sovereign whose claims of immunity are governed by
the FSIA. See Simon, 812 F.3d at 135 (citing 28 U.S.C.
§ 1603). Earlier in this litigation, the United States
government filed a Statement of Interest recommending that
Rail Cargo Hungaria Zrt., now nearly 100% owned by an
Austrian company, be dismissed from the case because of the
United States’ “strong support for international agreements
with Austria involving Holocaust claims against Austrian
companies—agreements that have provided nearly one billion
dollars to Nazi victims.” Statement of Interest of the United
States of America at 1, Simon v. Republic of Hungary, No. 10-
1770 (D.D.C. July 15, 2011), ECF No. 42. Given the United
States’ longstanding collaboration with Austria to “develop
funds to compensate victims of the Holocaust,” including the
Austrian General Settlement Fund, the United States
maintained that a “suit against [Rail Cargo Hungaria Zrt.] runs
contrary * * * to enduring United States foreign policy
interests.” Simon, 37 F. Supp. 3d at 393–394 (internal
quotation marks omitted).
The United States government said nothing about any
United States policy interest that would support dismissal of
the claims against the Republic of Hungary or MÁV. See
generally United States Statement of Interest.
The district court subsequently dismissed Rail Cargo
Hungaria Zrt. as a defendant for lack of personal jurisdiction.
Simon, 37 F. Supp. 3d at 444. The district court separately
dismissed the case against Hungary and MÁV for lack of
subject matter jurisdiction. The court reasoned that the Treaty
of Peace with Hungary, Feb. 10, 1947, 61 Stat. 2065, 41
U.N.T.S. 135 (“1947 Treaty”), “provide[d] for an exclusive,
extrajudicial mechanism to resolve” the Survivors’ claims, and
so the court was “constrained by the FSIA to recognize [their]
sovereign immunity.” Simon, 37 F. Supp. 3d at 420.
9
This court reversed. We held that the 1947 Treaty did not
preempt the Survivors’ suit because there was no express
conflict between the Treaty and the Survivors’ common-law
claims. Simon, 812 F.3d at 140. The Treaty established
only a “minimum obligation by Hungary” to compensate
victims; it did not provide the “exclusive means” by which
victims could obtain relief, leaving the Survivors free to pursue
other available remedies. Id. at 137 (emphasis omitted).
This court also ruled that the FSIA’s expropriation
exception, 28 U.S.C. § 1605(a)(3), encompassed the types of
common-law claims of conversion, unjust enrichment, and
restitution asserted by the Survivors. Simon, 812 F.3d at 141
(“We make FSIA immunity determinations on a claim-by-
claim basis[.]”). More specifically, we held that the
expropriation exception “squarely” applied, id. at 146, because
Hungary’s and MÁV’s expropriations of the Survivors’
property were “themselves genocide,” in violation of
fundamental tenets of international law, id. at 142. “The
Holocaust’s pattern of expropriation and ghettoization” in
Hungary was a “wholesale plunder of Jewish property * * *
aimed to deprive Hungarian Jews of the resources needed to
survive as a people.” Id. at 143 (internal quotation marks
omitted). Systematically stripping “a protected group” of
life’s necessities in order to “physical[ly] destr[oy]” them is
“genocide.” Id.
Looking to the complaint, this court held that the Survivors
had satisfactorily pled a commercial nexus with respect to
MÁV because MÁV engaged in commercial activity in the
United States by “maintain[ing] an agency for selling tickets,
booking reservations, and conducting similar business” here.
Simon, 812 F.3d at 147 (internal quotation marks omitted).
The complaint’s pleadings, however, needed more specificity
10
to show the type of commercial nexus that would support
exercising jurisdiction over Hungary. We remanded for the
district court to address that issue. Id. at 148. This court
also left it to the district court to decide on remand “whether,
as a matter of international comity, it should refrain from
exercising jurisdiction over [the remaining] claims until the
plaintiffs exhaust domestic remedies in Hungary,” and whether
the doctrine of forum non conveniens warranted dismissal.
Id. at 151.
2
Upon their return to district court, the Survivors amended
their complaint to allege specific facts regarding Hungary’s
ongoing commercial activity in the United States, including,
among other things, “[t]he promotion of Hungarian businesses
through trading houses,” the promotion of Hungary as a
destination for United States tourists, “[t]he promotion of
American investment in Hungarian business[,]” “[t]he
acquisition by Hungary of military equipment,” Hungary’s use
of the United States’ capital and debt markets to secure
financing, and Hungary’s acceptance of federal grants and
loans from the United States. Second Am. Compl. ¶ 101.
The district court again dismissed the case. The court
chose not to address whether the Survivors had adequately pled
facts supporting application of the FSIA’s expropriation
exception. Instead, the district court held that,
notwithstanding the jurisdiction expressly granted by the FSIA
over properly pled expropriation claims, “principles of
international comity” required the Survivors “to exhaust
[Hungarian] remedies, except where those remedies are futile
or imaginary.” Simon v. Republic of Hungary, 277 F. Supp.
3d 42, 54 (D.D.C. 2017) (internal quotation marks omitted)
(citing Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847,
11
852, 858 (7th Cir. 2015)). The district court further ruled that,
notwithstanding the Survivors’ arguments about the rise of
anti-Semitism in Hungary, a “lack of meaningful remedies,”
and restrictions on the independence of Hungary’s judiciary,
the Survivors’ “pursuit of their claims in Hungary would not
be futile.” Simon, 277 F. Supp. 3d at 57–63.
The district court further decided that dismissal was
warranted under the doctrine of forum non conveniens. The
court reasoned that the Survivors’ choice of forum merited
“minimal” deference, and that Hungary would be more
convenient because of the evidence and many witnesses
located there. Simon, 277 F. Supp. 3d at 63, 64–65. In
applying the forum non conveniens doctrine, the court placed
particular emphasis on Hungary’s interest in resolving the
dispute itself. Id. at 66.
The Survivors appeal both grounds for dismissal and
request that the case be reassigned to a new district court judge.
We agree that the district court erred in requiring the
exhaustion of Hungarian remedies and in its forum non
conveniens analysis, but see no basis for assigning a new
district court judge to hear the case.
II
Because this appeal arises from a dismissal at the threshold
of the case, “we must accept as true all material allegations of
the complaint, drawing all reasonable inferences from those
allegations in plaintiffs’ favor.” Philipp, 894 F.3d at 409
(internal quotation marks omitted). “[T]he court may [also]
consider the complaint supplemented by undisputed facts” of
record. Coalition for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003). We review de novo the
statutory question of whether the FSIA allows a federal court,
12
on grounds of international comity, to dismiss a case over
which it has jurisdiction (at a minimum as to MÁV) in favor of
the defendant’s home forum. Philipp, 894 F.3d at 410. A
district court’s forum non conveniens determination is
reviewed for a clear abuse of discretion. Agudas Chasidei
Chabad of United States v. Russian Fed’n, 528 F.3d 934, 950
(D.C. Cir. 2008).
III
A
Hungary and MÁV (collectively, “Hungary”) argue first
that, even if the FSIA provides jurisdiction, the Survivors were
required as a matter of international comity to first “exhaust”
or “prudential[ly] exhaust[]” their claims in the Hungarian
courts. Hungary Br. 34. According to Hungary, FSIA
jurisdiction would attach, if at all, only if Hungary closed its
doors to their claims or the Survivors “show[ed] that
exhaustion would be futile.” Id. at 28.
Before addressing that argument, some clarification of
language is in order. Exhaustion involves pressing claims
through a decisional forum—often an administrative agency or
specialized body—whose decision is then subject to the review
of a federal court. See Woodford v. Ngo, 548 U.S. 81, 90, 92
(2006) (describing exhaustion as requiring a plaintiff to “us[e]
all steps that the agency holds out, and do[] so properly (so that
the agency addresses the issues on the merits),” or “requir[ing]
a state prisoner to exhaust state remedies before filing a habeas
petition in federal court”) (internal quotation marks omitted).
When exhaustion applies, parties retain the legal right to direct
judicial review of the underlying decision.
13
The doctrine that Hungary invokes omits a crucial element
of traditional “exhaustion”—the Survivors’ right to subsequent
judicial review here of the Hungarian forum’s decision.
Indeed, while we need not definitively resolve the question,
there is a substantial risk that the Survivors’ exhaustion of any
Hungarian remedy could preclude them by operation of res
judicata from ever bringing their claims in the United States.
See Professor William S. Dodge Amicus Br. 15; de Csepel v.
Republic of Hungary, 714 F.3d 591, 606–608 (D.C. Cir. 2013).
So understood, enforcing what Hungary calls “prudential
exhaustion” would in actuality amount to a judicial grant of
immunity from jurisdiction in United States courts. But the
FSIA admits of no such bar. As this court recently held in
Philipp v. Federal Republic of Germany, supra, nothing in the
FSIA or federal law empowers the courts to grant a foreign
sovereign an immunity from suit that Congress, in the FSIA,
has withheld. 894 F.3d at 414–415. To the contrary, the
whole point of the FSIA was to “abate[] the bedlam” of case-
by-case immunity decisions, and put in its place a
“‘comprehensive set of legal standards governing claims of
immunity in every civil action against a foreign state.’” Id. at
415 (additional internal quotation marks and citation omitted)
(quoting Republic of Argentina v. NML Capital, Ltd., 134 S.
Ct. 2250, 2255 (2014)). There is no room in those
“comprehensive” standards governing “every civil action,” id.,
for the extra-textual, case-by-case judicial reinstatement of
immunity that Congress expressly withdrew. As we
explained in Philipp—echoing the Supreme Court—the whole
point of the FSIA is that, “[g]oing forward, ‘any sort of
immunity defense made by a foreign sovereign in an American
court must stand on the Act’s text. Or it must fall.’” Id. at
415 (quoting NML Capital, 134 S. Ct. at 2256).
14
Turning then to statutory text, Hungary’s exhaustion-cum-
immunity argument has no anchor in the FSIA. In fact, as
Philipp explains, the text points against it. When Congress
wanted to require the pursuit of foreign remedies as a predicate
to FSIA jurisdiction, it said so explicitly. Philipp, 894 F.3d at
415 (citing 28 U.S.C. § 1605A(a)(2)(A)(iii)); see also Torture
Victim Protection Act of 1991, 28 U.S.C. § 1350 note § 2(b)
(“A court shall decline to hear a claim under this section if the
claimant has not exhausted adequate and available remedies in
the place in which the conduct giving rise to the claim
occurred.”). More to the point, the FSIA is explicit that, if a
statutory exception to immunity applies—as we have squarely
held it does at least as to MÁV, Simon, 812 F.3d at 147—“[a]
foreign state shall not be immune from the jurisdiction of courts
of the United States or of the States.” 28 U.S.C. § 1605(a)
(emphasis added). Courts cannot end run that congressional
command by just relabeling an immunity claim as “prudential
exhaustion.”
Nor is Hungary’s form of judicially granted immunity
among those historical legal doctrines, like forum non
conveniens, that Congress chose to preserve when it enacted
the FSIA. Philipp, 894 F.3d at 416 (citing 28 U.S.C. § 1606).
Forum non conveniens predates the FSIA by centuries, and it
was an embedded principle of the common-law jurisprudential
backdrop against which the FSIA was written. Altmann, 541
U.S. at 713 (Breyer, J., concurring); see also Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 248 n.13 (1981) (tracing the history of
the doctrine). Hungary’s theory, by contrast, lacks any
pedigree in domestic or international common law. See
Philipp, 894 F.3d at 416 (citing Agudas Chasidei Chabad of
United States v. Russian Fed’n, 466 F. Supp. 2d 6, 21 (D.D.C.
2006) (“[T]his court is not willing to make new law by relying
on a misapplied, non-binding international legal concept.”)).
15
In short, controlling circuit and Supreme Court precedent
give no quarter to Hungary’s theory of judicial immunity
wrapped in exhaustion clothing. Under the FSIA, courts are
duty-bound to enforce the standards outlined in the statute’s
text, and when jurisdiction exists (as it does at least over
MÁV), courts “have the power, and ordinarily the obligation,
to decide cases and controversies properly presented to them.”
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.,
Int’l, 493 U.S. 400, 409 (1990).
B
Unlike Hungary’s prudential immunity/exhaustion theory,
the ancient doctrine of forum non conveniens is not displaced
by the FSIA. See Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 490 n.15 (1983); see also Altmann, 541 U.S. at
713 (Breyer, J., concurring). The doctrine applies when both
the United States and a foreign forum could exercise
jurisdiction over a case, but the United States proves to be “an
inconvenient forum,” or the plaintiff is “‘vex[ing],’
‘harass[ing],’ or ‘oppress[ing]’ the defendant by inflicting upon
him expense or trouble not necessary” to the plaintiff’s pursuit
of a remedy. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947).
The forum non conveniens doctrine comes with ground
rules. The starting point is “a strong presumption in favor” of
the plaintiff’s choice of the forum in which to press her suit.
Piper, 454 U.S. at 255–256; see also Atlantic Marine Const.
Co. v. United States Dist. Court for the W. Dist. of Texas, 571
U.S. 49, 66 n.8 (2013) (plaintiffs’ chosen forum is hard to
overcome “because of the ‘harsh result’ of [the forum non
conveniens] doctrine,” which “requires dismissal of the case
* * * and inconveniences plaintiffs in several respects and even
makes it possible for plaintiffs to lose out completely”)
16
(internal quotation marks and alternations omitted). The
plaintiff’s choice of forum merits still “greater deference when
the plaintiff has chosen [her] home forum.” Piper, 454 U.S.
at 255. For it is reasonable to assume that “this choice is
convenient,” and convenience is the lodestar of the forum non
conveniens doctrine. Id. at 256. By the same token, a
foreign plaintiff’s choice to litigate in the United States
“deserves less deference.” Id.
Because Hungary seeks to strip the Survivors of their
chosen forum and to force them to sue on Hungary’s home turf,
Hungary bears the burden of showing both that an “adequate
alternative forum for the dispute” exists, Chabad, 528 F.3d at
950, and that it is “the strongly preferred location for the
litigation,” MBI Grp., Inc. v. Credit Foncier Du Cameroun,
616 F.3d 568, 571 (D.C. Cir. 2010) (emphasis added). The
court must likewise “ensure that plaintiffs can reinstate their
suit in the alternative forum without undue inconvenience or
prejudice.” Nemariam v. Federal Democratic Republic of
Ethiopia, 315 F.3d 390, 392–393 (D.C. Cir. 2003) (citation
omitted).
In deciding whether to deny a plaintiff her chosen forum,
courts weigh a number of private and public interests. Piper,
454 U.S. at 241. At bottom, the “strong presumption in favor
of the plaintiff’s choice” can be “overcome only when the
private and public interest factors clearly point” to a foreign
forum. Id. at 255 (emphasis added).
The district court committed a number of legal errors that
so materially distorted its analysis as to amount to a clear abuse
of discretion. See El-Fadl v. Central Bank of Jordan, 75 F.3d
668, 677 (D.C. Cir. 1996) (“[T]he district court abuses its
discretion when it fails to consider a material factor or clearly
errs in evaluating the factors before it, or does not hold the
17
defendants to their burden of persuasion on all elements of the
forum non conveniens analysis.”) (formatting edited),
abrogated on other grounds by Samantar v. Yousuf, 560 U.S.
305, 314–315 (2010); see also Highmark Inc. v. Allcare Health
Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 n.2 (2014) (“A district
court would necessarily abuse its discretion if it based its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.”) (internal quotation marks
omitted).
1
The district court committed legal error at the first step by
affording the Survivors’ choice of forum only “minimal
deference.” Simon, 277 F. Supp. 3d at 63. The starting
point is that the Survivors’ choice of forum controls, and
“unless the balance is strongly in favor of the defendant, the
plaintiff’s choice of forum should rarely be disturbed.” Gulf
Oil, 330 U.S. at 508 (emphases added). So it is Hungary that
“bears a heavy burden in opposing [the Survivors’] chosen
forum.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 430 (2007). Deference to the plaintiffs’ choice
is magnified when, as here, United States citizens have chosen
their home forum. See Piper, 454 U.S. at 255.
The district court set the scales wrong from the outset. It
held that only “minimal deference” was due in this case
because, although four of the plaintiffs were United States
citizens, the other plaintiffs—from Canada (2), Israel (7), and
Australia (1)—“will be required to travel internationally
regardless of whether the litigation is in the United States or
18
Hungary.” Simon, 277 F. Supp. 3d at 63. That analysis
misstepped in three respects.
First, the addition of foreign plaintiffs does not render for
naught the weighty interest of Americans seeking justice in
their own courts. Here, nearly a third of the plaintiffs are from
the United States. And there is no claim or evidence that the
United States plaintiffs are in the case only as jurisdictional
makeweights seeking to manipulate the forum choice. Under
these circumstances, the United States’ plaintiffs’ preference
for their home forum continues to carry important weight in the
forum non conveniens analysis.
Second, the fact that other plaintiffs must travel does
nothing to show that it is more convenient for all plaintiffs to
travel to Hungary rather than for some to travel to the United
States. The presence of foreign plaintiffs certainly does not
justify the preference for a forum—Hungary—in which no
plaintiff resides. The question, after all, centers on
convenience, and forcing every single one of the many elderly
plaintiffs to travel internationally is in no way convenient.
See Piper, 454 U.S. at 256 n.24 (“[C]itizenship and residence
are proxies for convenience[.]”) (citation omitted); cf. Iragorri
v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) (“[T]he
degree of deference given to a plaintiff’s forum choice varies
with the circumstances.”). Nor is it in any way convenient for
every one of the Survivors to return to the country that
committed the mass murder of their families and the genocidal
theft of their every belonging.
Hungary bears the heavy burden of persuasion here. Yet
it made no effort to show how—as a matter of geographic
proximity, available transportation options, cost of travel, ease
of travel access, or any other relevant consideration—the
United States is a less convenient forum than Hungary for the
19
United States and Canadian plaintiffs, or even for the Israeli
and Australian plaintiffs, to access and conduct their litigation.
To be sure, Hungary need not have engaged in “extensive
investigation” to demonstrate that it is the more convenient
forum. Piper, 454 U.S. at 258. But given its burden of
proof, Hungary had to do something to show that its home turf
was the more convenient location for the litigation, and not just
more convenient for the defendant. See id. at 256 (“[T]he
central purpose of any forum non conveniens inquiry is to
ensure that the trial is convenient[.]”).
Third, it is indisputably inconvenient to further delay the
elderly Survivors’ almost decade-long pursuit of justice. See
Schubarth v. Federal Republic of Germany, 891 F.3d 392, 396,
399 n.5 (D.C. Cir. 2018) (plaintiff waited “nineteen years” for
a decision on her restitution application from a foreign nation).
That is important because, if a remedy ultimately proves
unavailable in Hungary, there is an open question whether that
lost time might render the Survivors ineligible for FSIA
jurisdiction were they to once again attempt to press their
claims here. See id. at 399 n.5 (noting, without resolving, the
question of whether the foreign nation’s or instrumentality’s
commercial activity must be “contemporaneous to the filing of
suit in th[e] [United States], rather than contemporaneous with
the alleged expropriation”). District courts must ensure that a
decision to dismiss on forum non conveniens grounds will not
lead to a foreign sovereign “delaying exhaustion of a plaintiff’s
remedies under its own laws” in a way that could end up
foreclosing the claims altogether. Id.
In supplemental briefing before this court, Hungary raises,
for the first time in this litigation, an argument that the
Survivors seek to represent a class with more Hungarian
members than American members. That is too little too late.
For starters, that factual argument is forfeited because it has
20
been fully available to Hungary from the onset of this litigation,
yet it was not presented to the district court. See Potter v.
District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009).
In any event, the argument does not hold water. No class
has been certified in this case. Hungary’s argument rests
instead on information derived from a different case in the
Southern District of Florida, see Settlement Agreement, Rosner
v. United States, No. 01-01859 (S.D. Fla. April 29, 2005), ECF
No. 209. Yet Hungary offers no evidence that the two groups
of plaintiffs would be the same or would have significant
overlap. Unadorned and tardy speculation carries no weight
in the forum non conveniens calculus.
In sum, the misplacement of the burden of proof and the
resulting material gaps in the district court’s legal analysis of
Hungary’s arguments in favor of a Hungarian forum pull the
legs out from under much of the district court’s forum non
conveniens analysis.
2
The district court misallocated the burden of proof in a
second consequential respect. The court tasked the Survivors
with proving that Hungary was not a proper forum.
Specifically, the district court ruled that its prior finding, for
purposes of “prudential exhaustion,” that the Survivors’
“pursuit of their claims in Hungary would not be futile” equally
“satisfie[d]” the requirement “that Hungary [be] both an
available and adequate alternative forum.” Simon, 277 F.
Supp. 3d at 63. More specifically, the court earlier found that
the Survivors failed to “show convincingly” that Hungarian
remedies are “clearly a sham or inadequate or that their
application is unreasonably prolonged” in a manner that would
render Hungarian remedies “futile.” Id. at 54 (internal
21
quotation marks omitted). In so ruling, the court noted the
Survivors’ “heavy burden” to come forward with a “legally
compelling reason” why resort to a Hungarian forum would be
futile. Id. at 57 (internal quotation marks omitted). The
court also considered and rejected piece by piece the Survivors’
evidence of futility, ultimately deeming their arguments against
so-called prudential exhaustion “[un]persuasive.” Id. at 59–
62.
That chain of reasoning does not carry over to the forum
non conveniens doctrine, where the job of proving the
availability and adequacy of a Hungarian forum was
Hungary’s, not the Survivors’. See Chabad, 528 F.3d at 950.
On top of that, the question is not whether the alternative forum
is a sham, inadequate, or unreasonably slow. Hungary had to
affirmatively prove both that an adequate remedy exists and
that the comparative convenience of its home forum was so
“strong[]” as to clearly warrant displacing the Survivors’
chosen forum. Gulf Oil, 330 U.S. at 508.
Hungary dismisses the court’s error as an “innocuous”
statement, Hungary Br. 15, pointing to the court’s later
reference to the correct standard in a parenthetical, id. (quoting
Simon, 277 F. Supp. 3d at 62); see also Dissenting Op. at 5
(characterizing the misallocation of the burden of proof as “at
worst, an obviously harmless error”). But applying the
correct burden of proof is not a box-checking exercise. What
matters is whether the court’s analysis fit those later words. It
did not. The district court instead equated its earlier finding
of non-futility with proof that “Hungary is both an available
and adequate alternative forum.” Simon, 277 F. Supp. 3d at
63. Those are two very different inquiries. See Fischer, 777
F.3d at 867 (“To be sure, the burden of proof differs between
the [prudential exhaustion and forum non conveniens]
inquiries” because, in the latter inquiry, defendants must
22
“establish that the remedies are adequate.”) (emphasis
omitted).
The proof is in the pudding. Under its inverted analysis,
the district court never analyzed the critical question of the
availability and adequacy of the Hungarian forum. Bypassing
that question was anything but harmless in this case, where
even the United States government lacks “a working
understanding of the mechanisms that have been or continue to
be available in Hungary with respect to such claims.” Brief
for Amicus Curiae the United States at 11. It is hard to
understand how a foreign forum can be so clearly more
convenient when the United States government itself does not
have a clear understanding of its nature or operation. 3
In other words, the district court let Hungary off the
burden-of-proof hook by transforming the Survivors’ failure to
prove futility in the “prudential exhaustion” inquiry into proof
of Hungary’s clear superiority as a forum in the forum non
conveniens analysis. On this record, that was a consequential
legal error. See El-Fadl, 75 F.3d at 677 (“[T]he district court
abuses its discretion when it * * * does not hold the defendants
to their burden of persuasion on all elements of the forum non
conveniens analysis.”) (emphasis added and internal quotation
marks omitted).
3
The consequences of the district court’s burden-allocation
errors snowballed as the court balanced the competing private
and public interests in the two fora. The ultimate inquiry,
again, puts the onus on Hungary. The law’s “strong
3
To be fair to the district court, it did not have the benefit of
this brief from the United States at the time of its decision.
23
presumption in favor of the plaintiff’s choice of forum,” Piper,
454 U.S. at 255, can be overridden only if the “private and
public interest factors strongly favor[] dismissal,” Chabad, 528
F.3d at 950 (emphasis added). Given the record in this case,
the district court’s failure to hold Hungary to that task makes
this among “the rare case[s]” in which a district court’s
balancing of factors amounts to an abuse of discretion.
Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018).
a
As relevant here, the private-interest factors include the
“relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling [witnesses;]
* * * and all other practical problems that make trial of a case
easy, expeditious, and inexpensive.” Piper, 454 U.S. at 241
n.6 (internal quotation marks omitted). It is the defendants’
obligation to “provide enough information to enable the
District Court to balance” the factors. Piper, 454 U.S. at 258.
The court’s analysis of the relevant record material in this case
was too quick to credit Hungary’s claims and too slow to value
the Survivors’ evidence.
In weighing the private-interest factors, the district court
reasoned that (i) extensive records are located in Hungary that
would require translation into English, (ii) “many witnesses
with personal knowledge will be located in Hungary” and
unable to travel, and (iii) the Survivors might later choose to
bring an action against Rail Cargo Hungaria Zrt., a previously
dismissed defendant. Simon, 277 F. Supp. 3d at 64–65.
None of those reasons stands up to scrutiny.
At best, the location-of-relevant-evidence factor is in
equipoise. While there are some records in Hungary, the
Survivors showed that an extensive collection of relevant
24
records has been amassed by the United States Holocaust
Memorial Museum in Washington, D.C. See Memorandum
in Opposition to Hungary’s Motion to Dismiss 21, Simon v.
Republic of Hungary, No. 10-1770 (D.D.C. Oct. 31, 2016),
ECF No. 122. 4
The issue of translation points both ways as well. Given
that many of the Survivors speak English, the documents will
in all likelihood have to be translated and “digitized” for the
parties regardless of which forum hears the case. See Philipp
v. Federal Republic of Germany, 248 F. Supp. 3d 59, 85
(D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018).
Digitization, moreover, has eased the burden of
transcontinental document production and has increasingly
become the norm in global litigation. See, e.g., id. at 85; Itoba
Ltd. v. LEP Group PLC, 930 F. Supp. 36, 44 (D. Conn. 1996).
The district court placed heavy emphasis on the presence
of “many witnesses” in Hungary who cannot or were unwilling
to travel. Simon, 277 F. Supp. 3d at 65. But that finding
resulted from failing to hold Hungary to its burden of proof.
Hungary failed to identify a single witness in Hungary that
would need to testify at trial. In actuality, the evidence in this
case will be largely documentary. See Oral Argument Tr.
4:17–4:21 (“[Survivors’ Attorney]: No, I don’t believe any
people from Hungary will be called to prove our case. * * *
[I]t’ll also be proven by reference to some documents[.]”); id.
4
The Dissenting Opinion faults the Survivors for not having
yet—at this pre-discovery stage—locked down the specific location
of documents regarding their “individual cases” of seizure and
expropriation. Dissenting Op. at 7. But the Dissenting Opinion
offers no justification for visiting upon the Survivors the very duty
of “extensive investigation” that it rejects for Hungary at this
procedural stage. Compare Dissenting Op. at 7, with Dissenting
Op. at 3.
25
at 19:1–19:4 (defendants’ listing “bank records,” “business
records,” and “tax records” as the type of evidence the court
would evaluate). That makes sense. Because the relevant
events occurred more than seventy years ago, the likelihood is
low that “many witnesses with personal knowledge” still exist
and are able to testify. Simon, 277 F. Supp. 3d at 65 (internal
quotation marks omitted). Someone who was barely an adult
during the war would now be in their mid-90s. To be sure,
the Survivors wished to depose one elderly witness in Hungary.
But that is far too little to tip the balance at all, let alone
strongly, in Hungary’s favor. See Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 426–429
(2006) (when evidence is “in equipoise,” the burden of proof
has not been met).
The district court also emphasized that the Survivors might
wish to join Rail Cargo Hungaria Zrt. as a defendant. But the
ability to implead third-party defendants becomes relevant
when the missing defendant is “crucial to the presentation of
[the appellee’s] defense.” Piper, 454 U.S. at 259 (explaining
that the ability to implead another defendant was significant
because the other parties could be relieved of liability).
Neither Hungary nor MÁV has argued that Rail Cargo
Hungaria Zrt. is crucial to its defense. And the Survivors do
not claim that Rail Cargo Hungaria Zrt. is necessary to the
presentation of their case. In the absence of a more
substantial showing of relevance or necessity, the district court
erred in relying on speculation about the Survivors’ possible
future litigation strategy as a ground for overriding their chosen
forum.
b
As relevant to this case, the public-interest factors include:
26
[T]he administrative difficulties flowing
from court congestion; the “local interest in
having localized controversies decided at
home”; the interest in having the trial of a
diversity case in a forum that is at home
with the law that must govern the action;
[and] the avoidance of unnecessary
problems in conflict of laws, or in the
application of foreign law[.]
Piper, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at 509).
The district court concluded that those factors weighed in favor
of a Hungarian forum because of Hungary’s “stronger” moral
interest in resolving the dispute, the likelihood that Hungarian
law would apply to the Survivors’ claims, and the
administrative burden the litigation could impose on the court.
Simon, 277 F. Supp. 3d at 66–67. That analysis failed to hold
Hungary to its burden of proof, misanalyzed the record
evidence, and overlooked material omissions in Hungary’s
claims.
First, the district court erred in assigning such significant
weight to Hungary’s asserted interest in addressing the
Survivors’ claims. See Simon, 277 F. Supp. 3d at 66.
Hungary has had over seventy years to vindicate its interests in
addressing its role in the Holocaust. Yet the scheme Hungary
currently has in place has not been recognized by the United
States government. See United States Statement of Interest at
1 (expressing “the United States’ strong support for
international agreements with Austria involving Holocaust
claims against Austrian companies,” without mentioning any
of Hungary’s laws to compensate victims); United States Br.
11 (United States does not “have a working understanding of
the mechanisms that have been or continue to be available in
Hungary with respect to such claims”).
27
Beyond that, the district court erred in putting Hungary’s
and the four American citizens’ and other Survivors’ interests
at cross-purposes. Allowing these claims to go forward and
the evidence to be shown in a United States court will in no
way impair Hungary’s ability to use that same evidence to
provide reparations and remediation to the Survivors of its own
accord.
The district court relied on Republic of the Philippines v.
Pimentel, 553 U.S. 851, 866 (2008), for the proposition that
United States courts should respect a foreign sovereign’s
interest in addressing its own past wrongs. Simon, 277 F.
Supp. 3d at 66. That mixes apples and oranges. At issue in
Pimentel was whether a suit that involved the Republic’s assets
and in which the FSIA did not authorize jurisdiction could still
proceed without including the Republic as a party. Pimentel,
553 U.S. at 865. More specifically, the case focused on
whether, under Federal Rule of Civil Procedure 19(b), the
Republic was an indispensable party whose absence would bar
the lawsuit from going forward. Id. at 862. All parties
agreed that the Republic was a necessary party, but they
disagreed over whether the Rule 19(b) factors permitted the
action to proceed without it. Id. at 863–864.
The Supreme Court held that, when considering the
intersection of joinder rules and sovereign immunity, “[a] case
may not proceed when a required-entity sovereign is not
amenable to suit.” 533 U.S. at 867. To hold otherwise, the
Court added, would fail to “giv[e] full effect to sovereign
immunity” and would offend the very interests that gave rise to
the foreign sovereign immunity doctrine and the FSIA in the
first place. Id. at 866. Pimentel, in other words, enforces the
immunity lines that the FSIA draws.
28
That bears no resemblance to this case. This case does
not involve necessary-party status under Rule 19; Hungary and
MÁV are already parties; and the FSIA’s expropriation
exception grants jurisdiction over at least one (and perhaps
both) of the Hungarian defendants. See Simon, 812 F.3d at
147; 28 U.S.C. § 1605(a)(3). It also bears noting that the
already certified class in Pimentel consisted primarily of
Philippine nationals, including “[a]ll current civilian citizens
of the Republic of the Philippines.” Hilao v. Estate of
Marcos, 103 F.3d 767, 774 (9th Cir. 1996) (emphasis added).
By contrast, not one of the named Survivors in this case resides
in or is a citizen of Hungary, and Hungary submitted no
evidence to the district court identifying a single potential
Hungarian class member or even a Hungarian witness.
Hungary additionally argues that other cases have
acknowledged a foreign sovereign’s interest in resolving
disputes internally. But the cases that Hungary cites involved
questions of personal jurisdiction and the extraterritorial
application of the Alien Tort Statute, 28 U.S.C. § 1350. See
Hungary Supp. Br. 8–9 (citing Kiobel v. Royal Dutch
Petroleum, 569 U.S. 108 (2013), and Daimler AG v. Bauman,
571 U.S. 117 (2014)). Those cases do not speak to whether a
court should, on forum non conveniens grounds, refuse to
exercise jurisdiction that does exist. Nor do they implicate
the heavy burden a defendant carries in overcoming a
plaintiff’s choice of forum.
The district court’s second legal error was brushing off the
United States’ own interests in the litigation. The district
court concluded that the Survivors’ claims have no connection
to the United States. Simon, 277 F. Supp. 3d at 66. That is
not correct. For starters, there are four United States citizen
plaintiffs in the suit. The United States has an obvious
interest in supporting their efforts to obtain justice in a timely
29
manner and, to that end, in ensuring that a United States forum
is open to those whose claims fall within the courts’ lawful
jurisdiction.
Beyond that, the United States government has announced
that it has a “moral imperative * * * to provide some measure
of justice to the victims of the Holocaust, and to do so in their
remaining lifetimes.” United States Br. at 9–10. That
interest is part of a larger United States policy to support
compensation for Holocaust victims, especially its own
citizens. “The policy of the United States Government with
regard to claims for restitution or compensation by Holocaust
survivors and other victims of the Nazi era has consistently
been motivated by the twin concerns of justice and urgency.”
United States Statement of Interest at 2. For the four citizen
plaintiffs in this case, that interest is so compelling that
Congress enacted it into law. See Justice for Uncompensated
Survivors Today Act of 2017, Pub. L. No. 115-171, 132 Stat.
1288, 1289 (2018) (requiring the Secretary of State to compile
a report that evaluates other countries’ “progress toward the
resolution of claims for United States citizen Holocaust
survivors and United States citizen family members of
Holocaust victims”).
The United States has also been actively involved in
obtaining justice for Nazi-era victims with countries that have
shown themselves willing to provide such redress. See
United States Statement of Interest at 2, 4–5 (The United States
has “assist[ed] in several international settlements which have
provided approximately $8 billion dollars for the benefit of
victims of the Holocaust”; signed Executive Agreements with
countries that had collaborated with the Nazis; and “committed
to take certain steps to assist Austria and Austrian companies
in achieving ‘legal peace’ in the United States with respect to
Nazi-era forced and slave labor claims[.]”). The United
30
States’ strong and longstanding interest in ensuring the timely
remediation of the claims of Holocaust survivors, especially for
its own citizens, carries important weight in the forum non
conveniens analysis.
Third, Hungary failed to show that the choice-of-law
factor favors its forum. The district court reasoned that
“Hungarian law would likely apply to the plaintiffs’ claims,”
making a Hungarian forum a better fit. Simon, 277 F. Supp.
3d at 66. But neither party argues that current Hungarian law
should apply. The Survivors assert that international
common law governs their claims. Survivors’ Reply Br. 25.
If so, United States courts are every bit as adept at applying that
law as a Hungarian forum would be.
Hungary argues that historical Hungarian law from the
time the property was seized should govern the claims. Oral
Argument Tr. 21:22–21:23. That cannot be right.
Hungarian law at that time made the genocidal seizures lawful
and deprived Jews of all legal rights and status. See id. 22:6–
22:9. That is the same law that authorized the deportation of
Hungarian Jews to death camps. Consigning the Survivors to
that legal regime would be the plainest of errors.
Finally, the United States has advised this court that it has
no specific foreign policy or international comity concerns that
warrant dismissal of this case in favor of a Hungarian (or any
other) forum. United States Br. at 11 (“[T]he United States
does not express a view as to whether it would be in the foreign
policy interests of the United States for plaintiffs to have sought
or now seek compensation in Hungary.”). Quite the opposite,
the United States’ brief here emphasized its governmental
interest in the timely resolution of the Survivors’ claims during
their lifetimes. Id. at 9–11. Likewise, its statement of
interest filed in the district court gave no reason why this case
31
should be dismissed and sent to Hungary. See generally
United States Statement of Interest. That silence speaks
volumes when contrasted with the federal government’s first
unprompted Statement of Interest in this case in which it
strongly recommended that the third defendant, a privately
owned Austrian company, be dismissed because of Austria’s
ongoing, collaborative efforts to provide reparations to victims
of the Holocaust. See id. at 1. That defendant has since been
dismissed from the case. Simon, 277 F. Supp. 3d at 47 n.1.
At bottom, the relevant private and public interests in this
case, strengthened by the United States government’s views,
point strongly in favor of the Survivors’ forum choice. They
certainly do not tilt decisively in favor of the Hungarian forum.
While we accord respectful deference to district courts’ forum
non conveniens determinations, we do not rubber stamp them.
Our task is to ensure that district courts’ decisions hew to the
burdens of proof and enforce the applicable legal
presumptions. In this case and on this record, the nature and
importance of the district court’s legal and analytical errors
render its judgment that Hungary met its weighty burden of
proof a clear abuse of discretion.
C
Lastly, the Survivors request that their case be assigned to
a different district court judge. “[W]e will reassign a case
only in the exceedingly rare circumstance that a district judge’s
conduct is ‘so extreme as to display clear inability to render fair
judgment.’” In re Kellogg Brown & Root, Inc., 756 F.3d 754,
763 (D.C. Cir. 2014) (citation omitted); see also Cobell v.
Kempthorne, 455 F.3d 317, 331 (D.C. Cir. 2006) (“[W]e
exercise this authority only in extraordinary cases.”). That
standard has not remotely been met here. There is no
evidence that the district court judge acted with anything but
32
impartiality in this case, and “we have no reason to doubt that
the District Court will render fair judgment in further
proceedings.” In re Kellogg, 756 F.3d at 763–764.
* * * * *
Winston Churchill described the brutal genocidal
expropriations, deportations, and mass extermination of
Hungarian Jews at Nazi death camps as “‘probably the greatest
and most horrible crime ever committed in the history of the
world.’” Simon, 812 F.3d at 132. The district court erred in
declining to exercise statutorily conferred jurisdiction over the
Survivors’ effort to obtain some measure of reparation for
those injuries both by wrongly requiring them to adjudicate
their claims in Hungary first, and by misapplying the law
governing the forum non conveniens analysis. We deny the
Survivors’ request that the case be reassigned, and remand for
further proceedings consistent with this opinion.
So ordered.
KATSAS, Circuit Judge, dissenting: The district court
concluded that this foreign-cubed case—involving wrongs
committed by Hungarians against Hungarians in Hungary—
should be litigated in Hungary. In so doing, the court
permissibly applied the settled law of forum non conveniens.
Our standard of review is narrow. As the Supreme Court
has instructed: “The forum non conveniens determination is
committed to the sound discretion of the trial court. It may be
reversed only when there has been a clear abuse of discretion;
where the court has considered all relevant public and private
interest factors, and where its balancing of these factors is
reasonable, its decision deserves substantial deference.” Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Thus, a
reviewing court may not “substitute[ ] its own judgment for
that of the District Court.” Id. Under this narrow standard,
reversal here is unwarranted.
The district court correctly stated the relevant legal
principles. First, it acknowledged “the ‘substantial
presumption in favor of a plaintiff’s choice of forum.’” Simon
v. Republic of Hungary (Simon III), 277 F. Supp. 3d 42, 62
(D.D.C. 2017) (quoting Agudas Chasidei Chabad v. Russian
Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008)). Then, the court
correctly stated the governing rule—“a court ‘may nonetheless
dismiss a suit for forum non conveniens if the defendant shows
(1) there is an alternative forum that is both available and
adequate and, (2) upon a weighing of public and private
interests,’ that the alternative forum is ‘the strongly preferred
location for the litigation.’” Id. (alterations adopted) (quoting
MBI Grp., Inc. v. Credit Foncier du Cameroun, 616 F.3d 568,
571 (D.C. Cir. 2010)). Finally, the court correctly identified
nine relevant private- and public-interest factors to be
considered. Id.
My colleagues conclude that the district court gave
insufficient weight to the plaintiffs’ choice of forum, relieved
2
the defendants of their burden of proof, and unreasonably
balanced the relevant factors. Respectfully, I disagree.
A
The district court permissibly assessed the weight owed to
the plaintiffs’ choice of a United States forum. At the outset,
the court repeatedly recognized the “substantial presumption”
or “substantial deference” generally due to such a choice. 277
F. Supp. 3d at 62, 63. Then, the court reasoned that the degree
of deference was “lessened” in this case because only four of
the fourteen named plaintiffs are United States residents,
because “none of the underlying facts in this case relate to the
United States in any way,” and because the named plaintiffs
and the putative class that they seek to represent come “from
all over the globe,” whereas the defendants are based entirely
in Hungary. Id. at 63.
This analysis is consistent with governing law. As the
Supreme Court has explained: “When the home forum has
been chosen, it is reasonable to assume that this choice is
convenient,” but “[w]hen the plaintiff is foreign, ... this
assumption is much less reasonable.” Piper Aircraft, 454 U.S.
at 255–56. And, in either case, the plaintiffs’ choice is
significant only insofar as it bears on “the central purpose of
any forum non conveniens inquiry,” namely “to ensure that the
trial is convenient.” Id. at 256. Thus, the district court was
amply justified in considering the residencies of all parties as
well as the disconnect between the plaintiffs’ chosen forum and
the relevant facts—matters that bear directly on the
convenience of litigating this case in a United States court.
My colleagues highlight the district court’s single usage of
the phrase “minimal deference,” which they read as a threshold
legal error of “set[ting] the scales wrong from the outset.” Ante
3
at 11, 17. What the court actually said, after flagging the
various considerations noted above, was that “[i]n these
circumstances, the plaintiffs’ choice of forum is entitled to
minimal deference.” 277 F. Supp. 3d at 63. In context, the
statement reflects not a failure to recognize the presumption,
but the court’s considered conclusion that the “defendants had
overcome the presumption” in this case. Id. at 64 (quoting
Moscovits v. Magyar Cukor Rt., 34 F. App’x 24, 26 (2d Cir.
2002)). That was neither legal error nor an abuse of discretion.
See, e.g., Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d
Cir. 2001) (en banc) (“the degree of deference given to a
plaintiff’s forum choice varies with the circumstances”).
My colleagues object that Hungary made no detailed
presentation regarding the plaintiffs’ travel options. Ante at
18–19. But the Supreme Court has warned that “[r]equiring
extensive investigation would defeat the purpose” of the forum
non conveniens motion. Piper Aircraft, 454 U.S. at 258. The
defendants were not required to conduct travel surveys to make
the commonsense point that less deference is due to the
plaintiffs’ choice when most plaintiffs would need to travel
internationally regardless of the forum. Nor was evidence
necessary to establish that all of the defendants are based, and
all of the relevant facts arose, in Hungary. On its face, the
complaint makes that clear. See J.A. 104–23.
My colleagues also fault the district court for failing to
consider whether any litigation delays in Hungary might
prevent the plaintiffs from later re-filing in the United States.
Ante at 19. But the plaintiffs did not raise this argument either
below or in their opening brief, so it is twice forfeited. See,
e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C.
Cir. 2008). Nor did the plaintiffs ask the district court, as a
fallback remedy, to attach conditions to any dismissal. And in
any event, the whole point of forum non conveniens law is to
4
dismiss cases that can more conveniently be adjudicated
elsewhere, not to defer adjudications while plaintiffs exhaust
claims or remedies in other fora.
B
My colleagues next contend that the district court
improperly required the plaintiffs to prove that Hungary was
not an available and adequate forum for their claims, rather
than requiring the defendants to prove that it was. Ante at 20.
But, in laying out the “applicable legal principles” of forum non
conveniens, the district court explicitly stated that dismissal is
appropriate only if “the defendant shows” that “there is an
alternative forum that is both available and adequate.” 277 F.
Supp. 3d at 62. The court did not improperly shift that burden.
My colleagues note that the district court, in addressing
whether Hungary was an adequate alternative forum, rested on
its conclusion that pursuing claims in Hungary would not be
futile for purposes of exhaustion. In the court’s own words,
“the finding that the plaintiffs’ pursuit of their claims in
Hungary would not be futile satisfies the first prong of the test
for application of the forum non conveniens doctrine that
Hungary is both an available and adequate alternative forum.”
277 F. Supp. 3d at 63.
The district court’s statement made good sense in the
context of its overall analysis. After all, in setting forth the
governing principles on futility, the district court exclusively
invoked the adequacy standards of forum non conveniens law.
See 277 F. Supp. 3d at 57–58. My colleagues correctly note
that exhaustion and forum non conveniens law assign the
opposite burden of proof on the question of futility or
adequacy. Ante at 21–22. But here, both sides presented
detailed affidavits regarding Hungarian law and practice, so the
5
burden of production did not matter. Likewise, the district
court assessed futility as a matter of law, based on undisputed
assertions in both affidavits, so the burden of persuasion did
not matter. Nor did the district court even conclude that the
competing legal arguments were at or near the point of
equipoise. In context, the district court’s cross-reference to its
analysis of futility was an appropriate shorthand or, at worst,
an obviously harmless error.
The court’s analysis makes all of this clear. Among other
things, the court explained that the Hungarian constitution
“requires that parties be treated fairly and equally in court,
prohibits discrimination on the basis of, among other things,
race or religion, and creates rights of appeal to various
appellate courts.” 277 F. Supp. 3d at 58. The court noted that
Hungary recognizes and enforces international law and
provides damages for the types of property losses alleged here.
Id. And it stated that these and other considerations, as set forth
by the defendants and their experts, “strongly support the
conclusion that Hungary is an adequate alternative forum for
the plaintiffs’ claims.” Id. The court then considered a
“variety” of the plaintiffs’ competing arguments and concluded
that “[n]one is persuasive.” Id. at 59–62. Apart from their
mistaken argument about a misplaced burden of proof, neither
the plaintiffs nor my colleagues challenge any relevant
particulars of this analysis.
My colleagues note that the United States declined to take
a position on the availability and adequacy of a Hungarian
forum. Ante at 22. But the government’s failure to address that
question hardly suggests that the district court, in assessing the
detailed submissions made to it on that very point, committed
legal error or otherwise abused its discretion.
6
C
The district court reasonably balanced the private and
public interests involved. On these points, my colleagues do
not argue that the district court committed any discrete legal
error, but only that the court abused its discretion in weighing
the relevant factors.
1
With regard to private interests, the district court
reasonably concluded that much of the evidence in this case
will involve paper records written in Hungarian and located in
Hungary. The court cited declarations noting “the extensive
documents in the Hungarian Archives related to property taken
from Hungarian nationals during World War II.” 277 F. Supp.
3d at 64. The court also cited the plaintiffs’ own complaint,
which repeatedly references “vital” evidence “kept by the
defendants in Hungary.” Id. And the court cited declarations
attesting that any pertinent documents were likely written in
Hungarian, which would require translation into English if this
case were heard in the United States. Id. at 64–65.
My colleagues conclude that, “[a]t best, the location-of-
relevant-evidence factor is in equipoise,” because “some”
records are in Hungary, while an “extensive” collection is at
the Holocaust Museum in Washington. Ante at 23–24. But the
defendants’ evidence showed that the Hungarian National
Archives “have a substantial amount of documentation”
regarding the Hungarian Holocaust, J.A. 184, and the
plaintiffs’ own legal expert confirmed “an abundance of
records of these confiscations in Hungarian archives,” J.A. 244.
Moreover, while the plaintiffs’ expert noted that “[c]opies” of
the documents “may be found” at the Holocaust Museum, he
did not assert that the museum had somehow managed to
7
compile records as complete or more complete than those of
the Hungarian government. J.A. 244–45. Furthermore, the
plaintiffs themselves have found no records relevant to their
individual cases in the museum, so there is no case-specific
reason to discount the defendants’ overall submissions on this
point. See Simon v. Republic of Hungary, No. 10-cv-1770
(D.D.C.), ECF Doc. 122 at 21 n.12. Finally, the examples
addressed by the plaintiffs’ expert confirm that the pertinent
original records are in paper form and written in Hungarian.
See id., ECF Doc. 122-1, Exs. 2–6. The district court
reasonably assessed the nature and location of the documentary
evidence.
The court also reasonably found that there would be “many
witnesses” in Hungary who could not or would not travel to the
United States. 277 F. Supp. 3d at 65. The plaintiffs had
“already sought to depose at least one witness located in
Hungary who was unable to travel out of the country,” id.—an
alleged war criminal recently arrested in Budapest, J.A. 79.
Given the number and scope of the war crimes alleged in the
complaint, and the need for each individual plaintiff to show
that any taking of his or her property was done as part of a
genocide, see Simon v. Republic of Hungary (Simon II), 812
F.3d 127, 143–46 (D.C. Cir. 2016), the district court reasonably
treated this consideration as significant.
The district court also reasonably considered the
appropriateness of a Hungarian forum in the event of further
litigation against Rail Cargo Hungaria Zrt. The plaintiffs had
sued RCH in this case, but RCH was dismissed for lack of
personal jurisdiction in the United States. See 277 F. Supp. 3d
at 65. In contrast, RCH might be joined to any future litigation
in Hungary, producing one case involving all of the original
defendants, rather than parallel lawsuits across two continents.
8
Finally, the district court noted one important competing
consideration—the “emotional burden” to the plaintiffs of
returning to Hungary. 277 F. Supp. 3d at 65. The court
reasoned: “While acknowledging the profound nature of the
emotional weight of bringing this case in Hungary, the Court is
hesitant to find that this factor outweighs virtually every other
factor weighing in favor of dismissing under forum non
conveniens.” Id. I can find no abuse of discretion in the court’s
recognition and balancing of the competing considerations.
For where “factors point in different directions, assuming no
abuse of discretion in the district court’s analysis of the
individual factors, it will be the rare case when we can reverse
a district court’s balancing of the … factors” as itself an abuse
of discretion. Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir.
2018).
2
With regard to public interests, the district court
reasonably concluded that Hungary’s interest in resolving this
controversy was greater than that of the United States. The
Supreme Court has long recognized the “local interest in
having localized controversies decided at home.” Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 509 (1947); see, e.g., Piper
Aircraft, 454 U.S. at 260; MBI, 616 F.3d at 576. Moreover,
this interest is heightened when the claims “arise from events
of historical and political significance” to the home forum.
Republic of Philippines v. Pimentel, 553 U.S. 851, 866 (2008).
This case is “localized” in Hungary; it involves the taking of
Hungarians’ property by other Hungarians in Hungary. In
addition, claims arising out of the Hungarian Holocaust are
plainly a matter of historical and political significance to
Hungary.
9
My colleagues object that neither Pimentel nor the
extraterritoriality and personal-jurisdiction decisions stressing
the importance of “a foreign sovereign’s interest in resolving
disputes internally” were forum non conveniens cases. Ante at
27–28. But the repeated acknowledgment of this interest—in
many different contexts—only reinforces the district court’s
conclusion. In any event, Gulf Oil and its forum non
conveniens progeny, such as Piper Aircraft and MBI, amply
support the district court’s judgment.
My colleagues counter that the United States has
recognized a “moral imperative” to provide compensation to
Holocaust victims. Ante at 29. True enough, but the
government seeks to further that interest by encouraging parties
“to resolve matters of Holocaust-era restitution and
compensation through dialogue, negotiation, and cooperation,”
not by sweeping foreign-centered cases into United States
courts. U.S. Br. at 10. Moreover, consistent with Gulf Oil and
its progeny, the United States reminds us that “a court should
give less weight to U.S. interests where the activity at issue
occurred in a foreign country and involved harms to foreign
nationals.” Id. at 16. Likewise, it reminds us that
“[a]pplication of the forum non conveniens doctrine can assist
in identifying cases in which an alternative foreign forum has
a closer connection to the underlying parties and/or dispute.”
Id. at 26. These considerations strongly support the district
court’s assessment of the public-interest factors.
Finally, the district court reasonably concluded that
choice-of-law considerations favor a Hungarian forum. Of
course, Hungarian law is the obvious source of law to govern
acts committed by Hungarians against Hungarians in Hungary.
My colleagues express concern that Hungarian law may have
affirmatively authorized the discrimination and genocide
committed during the Holocaust. Ante at 30. But Hungarian
10
law now outlaws both, 277 F. Supp. 3d at 58, and the
defendants affirmatively disavow any defense that genocidal
expropriations were lawful in the early 1940s, Oral Arg. Tr. at
22–23, 38. In sum, there is no bar to Hungarian law governing
the merits of this case, which will involve “garden-variety
common-law causes of action such as conversion, unjust
enrichment, and restitution.” Simon II, 812 F.3d at 141.
* * * *
The district court correctly stated the governing law and
reasonably weighed the competing considerations in this case.
Because the court did not abuse its discretion by dismissing on
forum non conveniens grounds, I would affirm its decision.