i'm here today to talk about the district courts application of the expropriations exception of the foreign sovereign immunity in in two particular ways the first is whether the act applies at all as the district court was presented with substantial authority that for a discriminatory taking a violation of international law and therefore subject matter jurisdiction under the f s a exist with or without an offer of just compensation the second area that i'm going to explore is the district court failure to apply comment out of section seven thirteen of the restatement which is this court in its prior opinion an aberration directed the district court to apply in particular concerning the issue of unreasonable prolong it of the availability of the remedy and whether or not hungry firmly denies responsibility for the the the place we want to start however is whether or not this exhaustion discussion is even a requirement i know what this court said previously in the appalachian opinion however we presented were critical dorothy's to the district court and in our briefing to this court establishing different discriminatory taking and to be clear nobody is disputed that this was a discriminatory take the the order to take all the real and personal property of the jews of hungary is the definition of discriminatory take there are four authorities which suggest that  discriminatory taking violates international law without any requirement for an offer of just compensation the first is the legislative history of the foreign sovereign immunity as act itself and we cited that in our brief and it says that a taking violates international law if it is done without proper payment of the proper adequate effective compensation required by international law war is arbitrary or discriminatory and they know all that required to establish subject matter jurisdiction under the epicycle a is that the property be taken in violation of international law it's clear that under international law for a nondiscriminatory taking the taking does not violate international law until no offer of just compensation has been made that is not the case for discriminatory taking and i think we can understand the reasons why for example if one carrion said to the jews you cannot own any real estate in hungary we'll pay for it but you can't own it and you can't own a business will pay for it but you can't own it by the way we' pay for it but we you can keep all the money in this country and we're going to control how you use it in other words basically would use appears that would violate international law because international recognizes you cannot use the authority of the state of discriminatory versus nondiscriminatory expirations and if i could direct the court to what notice twenty five of kasserine which says that  and it goes through the greenpeace in the millikan cases which this court cited previously which are nondiscriminatory particular cases and it's it it notes that those cases require exhaustion of post deprivation remedies because there cannot be constitutional injury until state fails to prove just compensation however it taking may violate international law when it does not serve a public purpose or is discriminatory nature the kind of taking the castle ray is but for purposes of jurisdiction in this case as well as when it is not accompanied by just compensation and in the body of the opinion itself they go through the analysis and they distinguish miller calm and griefs and interesting to note that those  international law because it was part of germany's genocide against the jews therefore this this second prong of the takings exception didn't apply for it to violate international law and that's really all we're trying to decide this is a jurisdictional question and the question is whether or not a u s court has jurisdiction over these sovereign entities and the language of the takings exception is clear this court does if the taking violated international law that there was no argument by the apple lease on this issue except to argue law of the case there was no argument that the authority that we cited doesn't in fact phenotypically that a discriminatory taking violates international law period we also offered additional authorities the restatement the restatement section seven twelve few critical words that the taking of the property of another state exactly right and we discussed this in the prior ruling your honor and this question seven twelve then really doesn't help you very much does  well it does because it mirrors the language of the legislative history of of the fs i a e a and it is a place where the definition of a taking is is discussed and as we have pled  case and as applied only to taking the property of a national of another state and that's not what we have here what actually we played that is what we have here because if you recall the pleading of the case and of the true facts were that the jews were were considered no longer to be citizens of hunger we don't with that issue before the right that issue does not require citizenship that i'm certain that the domestic filed a petition for rehearing if you want to re argue those issues you can or you can focus on what's new ok what's what's new is some of the additional authorities that we  and congress would never have dreamed of allowing any such defense in an action brought under section sixteen zero five eighty three which is the expiration succession that mr feldman contemplate was decided just a few months ago and judge hamilton you yourself cited it i believe two days after the the opinion came out and we think there are two significant things from that opinion one of them this court expressed concerns which i believe are entirely understandable concerns about the foreign policy implications of a u s court exercising jurisdiction over this case given the rather large magnitude of of the potential damages and that was exactly the argument that the state department in the republican merchants who made you know her courage and tina went to international market financial markets and essentially waived every shred of sovereign immunity it could that's an entirely different situation one could argue that is true on the facts but i believe that the language th leader used in in the opinion is is not quite so limiting because what what was argued today to the court was that the the effort to to conduct this fist push judgment discovery would undermine international comedy which is exactly a concern that this court expressed previously and that it might provoke quote reciprocal adverse treatments of the united states  which is also a concern that this court expressed explicitly previously and which justice scalia said on behalf of the majority of priest wrong majority the court was these apprehensions are better directed to that branch of government with authority to  act which as it happens is the same branch that forced our retirement from the immunity by factor balancing business nearly forty years ago and i recognise that the posture of the republican argentina is different it was in a post judgement context the bonds that argentina issued contained an explicit waiver of sovereign immunity but the language i believe is pretty explicit and the the concerns expressed by the the  in in the republican argentina case were identical to that of the court the other aspect of their public argentina case is goes to this issue of whether or not we can read and exception to the to the office i it is far as exhaustion is concerned and the keyword this is justice scalia the key word there which goes a long way towards a side in this case is comprehensive an taxed or it must fall in the absolute task set it taking in violation of international law establishes jurisdiction taking that's in violation of international law is discriminatory and it doesn't require just compensation but i want to talk about the unreasonable prolonged because we understood what the court said that the plaintiffs are coming late to the game and that they  you ought not count the period of soviet rule but the bottom line is that nine hundred ninety one here in constitutional court made a ruling that hungary was not compliant with its treaty obligations in hungary in ninety one ninety two and ninety three came up with so called suggests that in the context of evaluating whether an offer of just compensation is made by a foreign country six months is considered timely so even if we look at contemporary hungary it's lot more than six months and not only that but that to remedy or that it simply had to make its course open your honor i believe that the hungry would have to reach out if you look at the language of the f s a and the restatement assess or offer of just compensation just compensation i believe that there is some income and burden i'm hungry in especially when it's undertaken that effort if it never took any effort and somebody went to court and tried maybe you could have an argument but here they've said this constitutes just compensation we tried once in ninety one we try twice in ninety two we'll try three times in ninety three and those efforts were found to be not having what i'm most apologetic that's right up your time ye fs to return to hungary to pursue claims there would be an entirely futile gesture i'd like to point out just that the off at the onset that every other country in europe that we're aware that had some complicity aided and abetted or otherwise participated in the genocide and holocaust in europe has either outlaw outlawed  ust denial criminal offense or the countries such as germany and even france more recently have acknowledged their participation in a complicity with the final solution germany's nazi genocidal policy against the jews the situation hunger is completely the opposite the hunger arion government isn't whole it cost the nile it's an holocaust denial and an absolutely denies any complicity that the hunger ariane government ever had in the genocide of its own people the hanged garion people in one thousand and forty four it has done that in several very distinctive ways number one the new constitution the constitutional amendments of two thousand and eleven and two thousand and twelve in the preamble make it explicitly clear that hungary as a matter of fact and it's not true but they say in the constitution that hungary lost its sovereignty in one nine hundred forty four just happened to be just prior to the hungary and whole acoss of the germans and never regained it for several decades later some shrine in the constitution the constitution also makes it a crime to challenge the dignity of the hungarian nation and anyone who challenges the issue in the preamble as to the responsibility their claim non responsibility by the government for the whol is subject to criminal prosecution in hungary mr mcc l o y and that's whether yes here we have competing affidavits from different experts in hungary and in international law reading if i may be colloquial about a different tealeaves from different provisions in the evolving hungary and constitution and other laws  and in essence what we've got are experts trying to predict what might happen if the point if we're to seek remedies in modern day hungary is there any evidence before us of actual failures of the hungary and courts to give fair treatment to holocaust victims who have so no your honor because the record but lo is completely completely an adequate in that regard there was never any evidentiary hearing members that would members help a view gathered any such evidence that was submitted to the district court we have some indications that there have been some disputes over art ownership that at least some have been resolved in favor of the families whose property was taken any but let me tell you what i have in mind here ok the go back to the civil rights era in this country as the federal courts evolved a number of doctrines that were used to step in and in essence exercised jurisdiction where in not to require people to go to the state courts particularly in the jim crow south the record of those courts hostilities to civil rights claims was undeniable here as hungary has been changing and evolving i guess i'm i'm looking for some kind of evidence that that those those courts are have in fact been closed to people who have sought relief that the reason why it's closed it's it's a very different legal system than in our country the government itself due to the breakdown at the end of penance of the judiciary the government ruling party which controls the government controls the dockets whether you can file a complaint or not that's why there is a dearth and a paucity of any denials of any claims because the claim and you cannot be accepted i understand that argument is there government spoke out about the constitutional amendments and the failure to keep the courts open as a separate branch of government he his his complaints could not be heard and  court he had to leave hungary and go to the european court of human rights to bring his claims which have so far except that his claims and acknowledged and admonish hungary for the breakdown of rule of the rule there has been a recent memorial so called memorial unveiled by the government just within the last few months showing the german imperial lion raping the spoiling poor hungary as a as a victim it is revision absolute revisionist history it's been rejected by all comment all scholarly commentators it's been rejected by the european only recently within the last couple of months the us commission for the preservation of america's heritage abroad leslie weiss herself a daughter of a hunger arion whole akash survivor of  z mohnish the garion government and warned it as many others of hillary clinton others in the u s government have warned hungary not to distort history hungary hungary before the germans ever occupied it became greater hungary had to become greater hungary by gobbling up the surrounding portions in paragraph seventy seven through eighty eight of our amended complaint it outlines with great specificity how in cables from the state department our government during the war said you i'm garrion government if you do not back down if you continue to be complicit aiding the bat hung the german war machine and its abominable genocidal policy you will be held accountable after the war that was one thousand nine hundred forty four seventy years out so i'm going to ask you to wrap up your portion yes yes you seventy years has has passed the youngest ones are now in their seventy's and their eighty's is not many left many have died without any recourse to justice they came to the us she assures from hungary many to never return and never want to return to hungary and they ask the u s courts to hear their claims violations of international law i can tell your honour's that they can find no justice in hungary they can't even find a lawyer to stand up and file a claim in hungary for them he'd be subject to sanctions this farm and worse they were there was recently a debate in the it thank you very much we would ask the court to respectfully remand to the district court for a full hearing where there's absolutely no record whatsoever on this issue and the court conclusion that this is all speculation thank you very much you will add five minutes to their time and we'll get clive live may please the court can read kelter on the gaffe on behalf of the hunger in national railways your honour's there is not the only evidence in the record as to how the plaintiffs may be treated if they bring these claims in hungary is the evidence that we cemented which shows that there were holocaust survivors that brought claims for restitution or for restitution of property and for paintings and in fact prevailed quotas are there any other survivors been able to bring civil litigation claims for restitution besides the taken our work your honor we've we've we've looked and we have not found any cases where where survivors have brought claims however i think just a recent event which we referenced in our brief which was an article written by a plaintiff's lawyer who brought claims in the d c district court exactly like the claims that were brought by these plaintiffs attorneys with regard to takings during the holocaust that plaintiff's attorney sought the assistance of the hungary and courts to help collect evidence and to take the deposition of a work camp guard the not only did the one daring court provide assistance to that plaintiff's attorney but that pla attorney noted in that article and he whipped the hungry that the court provided the assistance that he that he asked for he was not discriminated against he was not arrested and in fact the court hungering court went out of its way to assist that plaintiff's attorney in trying to collect the evidence that he did that he was seeking so the only evidence in the record shows that if they go to hungry and if they try to file their complaint the other complaints and hungry they will be treated fairly and in fact they talked about the other let me talk about the other evidence in the record about how the plaintiffs may have been treated had they filed their cases in in hungary the plaintiff's own expert in his affidavit at the limited just as the defendant's experts had said the hung gary in court system at least prior to twentieth twelve was fair and well functioning nothing test changed since two thousand and twelve to effect that in fact when you look at the new hung garion constitution the new hungering constitution not only guarantees that everyone shall be equal under the law but it also guarantees that you're entitle to a fair and imp or an impartial and independent court in deciding your case well can the curren under the constitution new constitution can the current garion state be held legally responsible for crimes committed against one carrion jews during world war two i believe they can your honor i'm not it's not saying that they may have it they may have a case they would have to prove their case in the court but there's nothing in the constitution that would prevent a holocaust survivor for bringing claims for either restitution of property or damages for property have and having been been stolen in fact the last time we were here i talked about the one nine hundred forty seven treaty and the obligations of the hunt carrying state under that treaty and when you look at it and that treaty is still in effect and in fact when you look at the constitution of the hungary it specifically says that hungary must adhere to international law and it also missed it here to the laws of the european union that it joined so i believe that they can bring such claims and if they are successful just is the those plate this that brought the claims for restitution of property or restitution  of art prevailed then they can they can bring those claims and get compensation from from the government so what are we to make of the firing of baka i think that says me i think in the end the  discussion and the expert report i think that what's important about what has been going on with the government of hungary you need to dig down into the experts david in the first thing that you see is there plaintiff's experts admits that the current government is not anti semitic and so there may be there may be issues just as there are in this country about judicial appointments and those people to be on the bench but when you actually look at the new constitution what the new constitution says is that  judges cannot be instructed by the government and how they carry out their duty and it says that judges cannot be members of political parties and they cannot be involved in political activities so while there may have been disagreements about whether or not the chief judge was the right person to lead the current hungary and judicial judiciary i think i believe that's an issue just much as  in this country in deciding judges he is somebody qualified or not qualified but it has nothing to do with suggestions that somehow the government of hungary is anti semitic and somehow that they plaintiffs if they were to bring their claims in hungary nineteen ninety you know that that is the day we consider the beginning of the new democracy you don't think this distance is hungry from its responsibility for crimes committed during the holocaust no i don't your honor i think that preamble if you were to look at the constitutions of many of the other european countries countries have similar type language all that is saying is that there was a period of time when others took control of hungary it doesn't this it doesn't disclaim responsibilities that the hunger garion government may have had under international obligations and including the one nine hundred forty seven treaty with regard to responsibilities of taking taking that took place during hungary just a couple of other things that i wanted to know with regard to hungary today first of all hungary has outlawed the denial of the holocaust it is crime in hungary to to deny the polock cost the kurds second of all in terms of the hungaroring courts they have prosecuted hunger areas or or hawk hawk concentration camp guards criminally so and again i think these are all evidence to show  current government is not only anti semitic but that these plaintiffs can bring their claims in hungary and be treated fairly counsel would you think you and your experts have told us that there are no statute of limitations problems with these claims as a rule i believe that's why i believe what we've said your honor is it's it's the statue limitations it's complicated but as the plaintiffs themselves say in their briefs and it's  hungaroring laws regarding statue limitations depending on the type of claim that the plaintiffs may or may not bring there's a thirty year statue limitations that may well that was that was in all likelihood told during the if this case were pursued in hungary the only statue limitations rights that we would reserve your honor it would be any statute of limitations that may have run before they filed their complaints in this country in tw i don't understand what you just told me that sounds like a pretty big reservation well anything that might run your honor if if if for instance there was a there was a claim particular claim that they brought in it had a five year statute of limitations and they rated it weighted seventy years to bring that claim then i think that it would be fair to enable them to allow hungry to argue that the statue limitations on that particular king claim may have run i don't i don't futile i don't understand what you're trying to reserve them you've told us but your honor let me make you told us when you've told us in listen so understood the statutes of limitations on holocaust related claims claims if they your clients are not going to search such a difference that is correct your honor your honor just what about the defense the claims are barred by the existence of earlier remedial schemes statutes of compensation treaties and cetera what your honor i think that there are various types of claims that could may have been barred under the because of the compensation statute but tain't but but they're certainly enron claims for recovery of property or if you were not entitle to claim under the compensation act that claim may be barred because you didn't you didn't bring it at the time but let me just briefly talk briefly about those compensation statutes because i believe act and the third compensation act were enacted well before the most recent compensation statutes in germany and austria and those settlement programs i would also note that the there were for there was over fifty five million dollars in compensation paid out just in the second compensation act alone and there were hundreds of thousands of individuals that applied to these compensation statute so it's not as if these were statute these were compensation schemes that were well publicized that weren't notice to everybody to make be able to claim under these under these compensation statutes just a couple  things unless there are more questions with regard to remedies in in hungary on the exhaustion issue i think that this court hit the nail on the head last time want to talk about exhaustion being a well known requirement under international law the supreme court's most recent case in the argentina case doesn't change anything in fact that's really the wrong argentina case to look at the right argentina case to look at and determining how to interpret what international law means as used in the f s i a is that well dover case that's a case it was also written by justice scalia and there the issue was what did the term commercial used as in commercial activity and sixteen zero five eight two so similarly what you look at here is sixteen zero five a three what it what it congress mean when they use the term international law the sixth you know five a three and it's perfectly appropriate to do this court did to look outside what what did the what the determiner national law mean when congress use that in one nine hundred seventy six and i think it's pretty clear that the restatement of foreign relations law the switch would have been the second one in effect at that time had an exhaustion requirement so i don't think that there's any dispute with regard to the need to exhaust local remedies before you can state a violation of international law given the language of seven twelve however which does distinguish between discriminatory takings and other kinds of of takings made without compensation why no point of have a pretty viable argument well i think you're i'm sorry your honor i think what you need to do is look beyond just the language of the the restatement itself and look at the  if you look at comments a b c and d of section seven twelve those comments make clear that exhaustion that is just compensation is a requirement for any type of taking be it discriminatory or nondiscriminatory for a government purpose or non government purpose and in fact i think if you look at comment seven twelve there is a suggestion that a discriminatory taking or a taking for a non government purpose with just compensation may well not be a violation of international law so i think that the plaintiffs are just wrong when in terms of how they are trying to read restatement section twelve in terms of the need for just compensation to establish a taking in violation of law and in that region requires exhaustion you first have to try to seek your local remedies in hungary or they in this case would have to seek their local writ remedies and hungry before they can have stated a violation of international law and unless your honour's have any other questions what kind of showing will do you think would show remedies for futile well i think what they when i think what the planes would have to show your honor is that someone had gone to hungary and filed a case and the case was was thrown out for discriminatory reasons or that they weren't given a fair opportunity or that the judge somehow treated them unfairly in that situation and there's just nothing in the record to suggest that that would be the case i think i would also point out that the mere fact that the plaintiffs now seventy years later file a case in hungary and for some reason would not prevail that doesn't mean that the remedy that somehow the remedies in hungary were an inadequate or it would have been futile to have gone to hungary you know and filed the suit twenty years ago or thirty years ago it please the court just a few quick comments in rebuttal it shouldn't be surprising that the government would defend its legal system but they're the only voice defending its legal system and we have to put the entirety of the record that was put before the district for some time past present or been has been referred to as putin on the past he is expresses admiration for putin and he has changed the constitution a number of times since this court correct and and yes he does yes he does and the question we have though is the court's opinion came out in twenty two well right at the time right before these significant constitutional changes went into effect hungary this court noted is a modern western democracy in two thousand and twelve in two thousand and thirteen it found itself on the verge of being kicked out of the european union for the changes it made in its constitution regarding the lack of judicial independence of the venice commission report which we cited the rising anti semitism in the rising right wing and the way the president or been has shifted both sides of the fence to kind of try to play both ends to preserve his own viability it may be true that there is no statue of limitations against crimes committed against hungry people but if you look at that that's against the germans and the russians for what they did to them carrying people they don't admit responsibility for having committed the holocaust and in fact the crime against holocaust denial does not prohibit the hundred carians from saying it wasn't us it was the germans how long do you suppose it would take you to find out if you went to learn that you were not going anywhere it would take a while your honor it would and there's it is mr indicated you're not in control of your own case in your own docket they can never assign a judge and again there's no judicial independence it's a politically controlled outcome and it cannot be forgotten that not competing speculative opinions you could hear some evidence and evaluate the credibility of the experts and make a decision that's what we do all the time with speculative expert opinions and in litigation  matters that are admitted in the far less esoteric then than that but there's one more aspect loser pays there's that's true in many parts of the world it is but when you go in under these facts under the cloud of a constitutional system that's been condemned by the venice commission and the european union with its noted lack of judicial independence with its current efforts and this is an ongoing situation  to erect statues that rehabilitate and recognise that the hungry people didn't do anything after the germans came in that the germans didn't tell them to do and that they weren't responsible for it to send these elderly people these jewish survivors who were traumatized by what happened to them into that environment to experiment as to whether or not the remedy will work i would submit is fundamentally not only unfair but it's not required by you're asking if you want to use civil litigation in the united states to pursue liability against a foreign government for events that occurred in that foreign nation three generations ago what's the closest parallel kasserine yes or it was civil litigation against the government of spain for events that occurred i don't believe that these questions of international watre should turn nor do they in the tax turn on whether you have a single plaintiff asserting a few million dollars in damages or ate a large class action asserting substantially more than that that the violation of international law if anything is enhanced by the scale of what is being sought not decreased and your time still has expired case of the if you are empty sorry you honor we believe that exhaustion isn't required here is a matter of law and ought not be required as a matter of discretion hungary is not a modern democracy there should really no debating that there is no judicial independence we cited ample authority that even the recent changes in the constitution that were intended to try to make the european union feel better or to affect it and if you have any doubt at all you should send it back to this report in may can make some findings of fact so that you can evaluate it based on a proper record in a