United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 2, 2018 Decided July 10, 2018

No. 17-7064

ALAN PHILIPP, ET AL.,

APPELLEES

v.

FEDERAL REPUBLIC OF GERMANY AND STIFTUNG 

PREUSSISCHER KULTURBESITZ,

APPELLANTS

Consolidated with 17-7117

Appeals from the United States District Court

for the District of Columbia

(No. 1:15-cv-00266)

Jonathan M. Freiman argued the cause for appellants. 

With him on the briefs were Benjamin M. Daniels, David R. 

Roth, and David L. Hall.

Nicholas M. O'Donnell argued the cause and filed the brief 

for appellees. 

Gary A. Orseck, Ariel N. Lavinbuk, Daniel N. Lerman, and 

D. Hunter Smith were on the brief for amicus curiae David 

Toren in support of appellees. 
2

Before: TATEL, GRIFFITH, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case, the heirs of several 

Jewish art dealers doing business in Frankfurt, Germany in the 

1930s seek to recover a valuable art collection allegedly taken 

by the Nazis. Defendants, the Federal Republic of Germany 

and the agency that administers the museum where the art is 

now exhibited, moved to dismiss, claiming immunity from suit 

under the Foreign Sovereign Immunities Act. They also argued 

that the heirs failed to exhaust their remedies in German courts

and that their state-law causes of action are preempted by 

United Statesforeign policy. The district court rejected all three 

arguments and denied the motion to dismiss. For the reasons 

set forth below, we largely affirm. 

I.

Because this appeal comes to us from the district court’s 

ruling on a motion to dismiss, “we must accept as true all 

material allegations of the complaint, drawing all reasonable 

inferences from those allegations in plaintiffs’ favor.” de 

Csepel v. Republic of Hungary, 714 F.3d 591, 597 (D.C. Cir. 

2013) (internal quotation marks omitted). Viewed through that 

lens, the complaint relates the following events:

In 1929, three Frankfurt-based firms owned by Jewish art 

dealers joined together into a “Consortium” and purchased “a 

unique collection of medieval relics and devotional art” called 

the Welfenschatz. First Amended Compl. (FAC) ¶ 1, Philipp v. 

Federal Republic of Germany, 248 F. Supp. 3d 59 (D.D.C. 

2017) (No. 1:15-cv-00266); see id. ¶¶ 34–35. The treasure—or 

“schatz”—acquired its name due to its association with the 

House of Welf, an ancient European dynasty. See id. ¶ 30. 
3

Dating primarily from the eleventh to fifteenth centuries, the 

several dozen pieces that make up the Welfenschatz were 

housed for generations in Germany’s Brunswick Cathedral. See 

id. After displaying the Welfenschatz throughout Europe and

the United States and selling a few dozen pieces, the

Consortium placed the remainder of the collection, which at 

that time retained about eighty percent of the full collection’s 

value, into storage in Amsterdam. Id. ¶¶ 41, 78.

The heirs allege that “[a]fter the [1933] Nazi-takeover of 

power in Germany, . . . the members of the Consortium faced 

catastrophic economic hardship,” id. ¶ 10, and in 1935, 

following “two years of direct persecution” and “physical peril 

to themselves and their family members,” id. ¶ 145, the 

Consortium sold the Welfenschatz to the Nazi-controlled State 

of Prussia for 4.25 million Reichsmarks (the German currency 

at the time), id. ¶¶ 145–160, “barely 35% of its actual value,” 

id. ¶ 12. “Standing behind all of this was [Hermann] Goering,”

id. ¶ 73, “Prime Minister of Prussia at that time,” id., a 

“notoriousracist and anti-Semite,” id. ¶ 74, and “legendary” art 

plunderer, id. ¶ 75. Goering “seldom if ever” seized outright

the art he desired, preferring “the bizarre pretense of 

‘negotiations’ with and ‘purchase’ from counterparties with 

little or no ability to push back without risking their property 

or their lives.” Id. The Welfenschatz was then shipped from 

Amsterdam to Berlin, see id. ¶ 157, where Goering presented 

it to Adolf Hitler as a “surprise gift,” id. ¶ 179 (quoting Hitler 

Will Receive $2,500,000 Treasure, Balt. Sun, Oct. 31, 1935, at 

2). All but one of the Consortium members then fled the 

country. See id. ¶¶ 163, 170–171. The remaining member died 

shortly after, officially of “cardiac insufficiency,” id. ¶ 163, but 

“rumors” circulated that he was “dragged to his death through 

the streets of Frankfurt by a Nazi mob,” id. ¶ 166.
4

“After the war, [the Welfenschatz] was seized by U.S. 

troops,” id. ¶ 181, and eventually turned over to appellant

Stiftung Preussischer Kulturbesitz (SPK), a German agency 

formed “for the purpose . . . of succeeding to all of Prussia’s 

rights in cultural property,” id. ¶ 184; see id. ¶¶ 181–84. The 

Welfenschatz is now exhibited in an SPK-administered 

museum in Berlin. Id. ¶ 26(iv).

In 2014, appellees, Alan Philipp, Gerald Stiebel, and Jed 

Leiber, heirs of Consortium members, sought to recover the 

Welfenschatz, and they and the SPK agreed to submit the claim 

to a commission that had been created pursuant to the 

Washington Conference Principles on Nazi–Confiscated Art,

id. ¶ 220, an international declaration that “encouraged” 

nations “to develop . . . alternative dispute resolution 

mechanisms” for Nazi-era art claims, id. ¶ 197 (quoting U.S. 

Dep’t of State, Washington Conference Principles on NaziConfiscated Art ¶ 11 (1998) [hereinafter Washington 

Principles]). Known as the German Advisory Commission for 

the Return of Cultural Property Seized as a Result of Nazi 

Persecution, Especially Jewish Property, id. ¶ 205, the 

Advisory Commission concluded “that the sale of the 

Welfenschatz was not a compulsory sale due to persecution” 

and it therefore could “not recommend the return of the 

Welfenschatz to the heirs,” Advisory Commission, 

Recommendation Concerning the Welfenschatz (Guelph 

Treasure) (Mar. 20, 2014), Appellants’ Supp. Sources 7; see 

also FAC ¶ 221.

Seeking no further relief in Germany, the heirs filed suit in 

the United States District Court for the District of Columbia 

against the Federal Republic of Germany and the SPK 

(collectively, “Germany”), asserting several common-law

causes of action, including replevin, conversion, unjust 

enrichment, and bailment. See FAC ¶¶ 250–304. They sought
5

the return of the Welfenschatz “and/or” 250 million dollars, id.

Prayer for Relief, a “conservative estimate[]” of its value, id.

¶ 33. Germany moved to dismiss, arguing that it enjoyed 

immunity from suit under the Foreign Sovereign Immunities 

Act (FSIA), that international comity required the court to 

decline jurisdiction until the heirs exhaust their remedies in 

German courts, and that United States foreign policy 

preempted the heirs’ state-law causes of action. The district 

court rejected all three arguments and, aside from a few 

uncontested issues, denied the motion to dismiss. Philipp, 248 

F. Supp. 3d at 87. 

Germany appealed the district court’s FSIA determination

as of right. See Owens v. Republic of Sudan, 531 F.3d 884, 887 

(D.C. Cir. 2008) (“[W]hen . . . a denial [of a motion to dismiss] 

subjects a foreign sovereign to jurisdiction, the order is ‘subject 

to interlocutory appeal.’” (quoting El–Hadad v. United Arab 

Emirates, 216 F.3d 29, 31 (D.C. Cir. 2000))). On Germany’s 

motion, the district court certified the other two issues for 

interlocutory appeal, Philipp v. Federal Republic of Germany, 

253 F. Supp. 3d 84 (D.D.C. 2017), and this court granted 

Germany’s petition to present them now, Per Curiam Order, In 

re Federal Republic of Germany, No. 17-8002 (D.C. Cir. Aug. 

1, 2017). Reviewing de novo, we address Germany’s 

immunity, comity, and preemption arguments in turn.

II.

Under the FSIA, foreign sovereigns and their agencies

enjoy immunity from suit in United States courts unless an

expressly specified exception applies. 28 U.S.C. § 1604. The 

heirs assert jurisdiction under the statute’s “expropriation 

exception,” see id. § 1605(a)(3), which “has two 

requirements”: that “‘rights in property taken in violation of 

international law are in issue,’” and that “there is an adequate 

commercial nexus between the United States and the 
6

defendant[],” de Csepel v. Republic of Hungary, 859 F.3d 

1094, 1101 (D.C. Cir. 2017) (quoting 28 U.S.C. § 1605(a)(3)). 

Germany “bears the burden of proving that [the heirs’] 

allegations do not bring [the] case within” the exception. 

Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 

(D.C. Cir. 2000).

A.

As to the expropriation exception’s first requirement, we 

explained in Simon v. Republic of Hungary, 812 F.3d 127 (D.C. 

Cir. 2016), that although an “intrastate taking”—a foreign 

sovereign’s taking of its own citizens’ property—does not 

violate the international law of takings, id. at 144, an intrastate 

taking can nonetheless subject a foreign sovereign and its 

instrumentalities to jurisdiction in the United States where the 

taking “amounted to the commission of genocide,” id. at 142. 

This, we explained, is because “[g]enocide perpetrated by a 

state,” even “against its own nationals[,] . . . is a violation of 

international law.” Id. at 145. In so holding, we adopted the 

definition of genocide set forth in the Convention on the 

Prevention of the Crime of Genocide. Id. at 143. “[A]dopted by 

the United Nations in the immediate aftermath of World War 

II,” id., the Convention defines genocide, in relevant part, as 

“[d]eliberately inflicting” on “a national, ethnical, racial or 

religious group . . . conditions of life calculated to bring about 

its physical destruction in whole or in part,” Convention on the 

Prevention and Punishment of the Crime of Genocide 

(Genocide Convention), art. 2, Dec. 9, 1948, 78 U.N.T.S. 277.

In Simon, “survivors of the Hungarian Holocaust,” 812 

F.3d at 134, alleged that in 1944–45 Hungary “forced all Jews 

into ghettos, . . . confiscating Jewish property” in the process, 

id. at 133, and then “transport[ed] Hungarian Jews to death 

camps, and, at the point of embarkation, confiscate[d] [their 

remaining] property,” id. at 134. Assuming the truth of these 
7

allegations—like here, the case came to us from a ruling on a 

motion to dismiss—we held that because the allegations of 

“systematic, wholesale plunder of Jewish property . . . aimed 

to deprive Hungarian Jews of the resources needed to survive 

as a people . . . describe[d] takings of property that are 

themselves genocide within the legal definition of the term,” id.

at 143–44 (internal quotation marks omitted), they “fit[] 

squarely within the terms of the expropriation exception,” id.

at 146.

A year later, in de Csepel v. Republic of Hungary, 859 F.3d 

1094 (D.C. Cir. 2017), we considered claims by the heirs of a 

Jewish collector whose art was seized by the “Hungarian 

government and its Nazi collaborators,” id. at 1097. We held, 

among other things, that plaintiffs could pursue their 

“bailment” claim for return of the art. Id. at 1103. The case, we 

explained, was “just like Simon.” Id. at 1102. “Here, as there, 

Hungary seized Jewish property during the Holocaust. Here, as 

there, plaintiffs bring ‘garden-variety common-law’ claims to 

recover for that taking.” Id.

In today’s case, the heirs argue that, after Simon and de 

Csepel, “[i]t is beyond serious debate that Nazi Germany took 

property in violation of international law by systematically 

targeting its Jewish citizens to make their property vulnerable 

for seizure.” Appellees’ Br. 27. The district court agreed, 

concluding that, “like in Simon, the taking of the Welfenschatz 

as alleged in the complaint bears a sufficient connection to 

genocide such that the alleged coerced sale may amount to a 

taking in violation of international law.” Philipp, 248 F. Supp. 

3d at 71. Germany disagrees, insisting that “[t]he allegations 

here have little in common with the Simon allegations except 

that they happened under Nazi rule.” Appellants’ Br. 35. 

According to Germany, four differences between this case and 

Simon compel a different result.
8

First, Germany argues that unlike in Simon, where the 

Nazis confiscated “food, medicine, clothing, [or] housing,” 

here they seized art. Id. at 40. Although de Csepel also involved 

a seizure of art, we had no need to decide then whether Simon 

applied because the Hungarian government had conceded that 

the seizure there was genocidal, see de Csepel v. Republic of 

Hungary, 169 F. Supp. 3d 143, 164 (D.D.C. 2016). Thus, we 

are asked for the first time whether seizures of art may 

constitute “takings of property that are themselves genocide.”

Simon, 812 F.3d at 144 (emphasis omitted). The answer is yes.

Congress has twice made clear that it considers Nazi artlooting part of the Holocaust. In enacting the Holocaust 

Victims Redress Act, which encouraged nations to return Naziseized assets, Congress “f[ound]” that “[t]he Nazis’ policy of 

looting art was a critical element and incentive in their 

campaign of genocide against individuals of Jewish . . .

heritage.” Holocaust Victims Recovery Act, Pub. L. No. 105-

158, § 201, 112 Stat. 15, 15 (1998). And in the Holocaust 

Expropriated Art Recovery Act (HEAR Act), which extended 

statutes of limitation for Nazi art-looting claims, Congress 

again “f[ound]” that “the Nazis confiscated or otherwise 

misappropriated hundreds of thousands of works of art and 

other property throughout Europe as part of their genocidal 

campaign against the Jewish people and other persecuted 

groups.” Holocaust Expropriated Art Recovery Act of 2016, 

Pub. L. No. 114-308, § 2, 130 Stat. 1524, 1524 (emphasis 

added).

In this case, moreover, the Welfenschatz was more than 

just art. As Germany acknowledges, “the Consortium bought 

[the Welfenschatz] not for pleasure or display, but as business 

inventory, to re-sell for profit.” Appellants’ Br. 12. By seizing 

businesses’ inventory—like the other economic pressures 

alleged in the complaint, such as the “boycott of Jewish-owned 
9

businesses,” FAC ¶ 58, and “exclu[sion]” of Jews from certain 

professions, id. ¶ 120—the Nazis “dr[ove] Jews out of their 

ability to make a living,” id. ¶ 61, and thereby, in the words of 

the Genocide Convention, “inflict[ed] . . . conditions of life 

calculated to bring about [a group’s] physical destruction in 

whole or”—at the very least—“in part,” Genocide Convention 

art. 2(c).

Second, Germany argues that whereas Simon involved a 

“forcible deprivation” of property, Appellants’ Br. 40, this case 

involves only a “forced sale . . . for millions of Reichsmarks,” 

id. at 42. For purposes of this appeal, however, Germany 

concedes that the forced sale qualifies as a “tak[ing],” id. at 28 

n.12, and it offers no reason why a taking by forced sale cannot

qualify as a genocidal taking. Indeed, the heirs’ allegations—

allegations that, we repeat, we must accept as true at this stage 

of the litigation—support just that conclusion. According to the 

complaint, Goering “routinely went through the bizarre 

pretense of ‘negotiations’ with and ‘purchase’ from” powerless 

counterparties. FAC ¶ 75. In addition, the heirs allege, the 

Nazis made it impossible for Jewish dealers to sell their art on 

the open market. Jewish art dealers’ “means of work” were 

“effectively end[ed],” and “[m]ajor dealers’ collections were 

liquidated because they could not legally be sold.” Id. ¶ 120.

“Jewish art dealers . . . lost” even “their Jewish customers,” 

because, as a result of the crippling economic policies, “there 

was no money left to buy art.” Id. ¶ 124. “By spring of 1935,” 

the heirs allege, “the exclusion of Jews from . . . German life 

. . . had become nearly total. The means by which German art 

could be sold by Jewish dealers had effectively been 

eliminated.” Id. ¶ 138. It was within that context, the heirs 

allege, that the Nazis pressured the Consortium to sell the 

Welfenschatz for well below market value. Id. ¶ 139. “The 

Consortium had,” the heirs allege, “only one option.” Id. ¶ 145. 
10

Fearful of losing the entire value of their property, or worse, 

the Consortium acquiesced. Id. ¶ 139.

Third, Germany claims that “conditions for Hungarian 

Jews in 1944–45”—the period of time at issue in both Simon

and de Csepel—“were far different from conditions for 

German Jews nearly a decade earlier, in the summer of 1935.”

Appellants’ Br. 40 n.23. The sale of the Welfenschatz, 

Germany points out, predated “the Nuremberg Laws, . . . the 

Decree on the Elimination of the Jews from Economic Life 

. . . , and . . . the mass murder of German Jews.” Id.

In Simon, however, we explained that the “Holocaust

proceeded in a series of steps.” Simon, 812 F.3d at 143. “‘The 

Nazis . . . achieved [the Final Solution] by first isolating [the 

Jews], then expropriating the Jews’ property, then ghettoizing 

them, then deporting them to the camps, and finally, murdering 

the Jews and in many instances cremating their bodies.’” Id. at 

144 (alterations in original) (quoting Complaint ¶ 91, Simon v. 

Republic of Hungary, 37 F. Supp. 3d 381 (D.D.C. 2014) (No. 

1:10-cv-1770)). Although the events at issue in Simon occurred 

at the later steps of the Holocaust, i.e., ghettoization and 

deportation, and the events at issue here occurred at the earlier

steps, i.e., isolation and expropriation, both are “steps” of the 

Holocaust, id. at 143. And, as the heirs allege, those earlier 

steps began as early as 1933, more than two years before the 

Nazis seized the Welfenschatz. Specifically, the heirs allege

that the Nazis rose to power in the early 1930s by “blam[ing]

Jews for any and all economic setbacks,” FAC ¶ 48, and once 

in power, “encourage[d]” the “boycotts of Jewish businesses 

[that] spread in March and April 1933, just weeks after Hitler’s 

ascension,” id. ¶ 58. Moreover, the 1933 “found[ing] [of] the 

Reich Chamber of Culture,” which “assumed total control over 

cultural trade” and excluded Jews, “effectively end[ed] the 

means of work for any Jewish art dealer in one stroke.” Id.
11

¶ 120. The heirs also allege that outright violence against 

German Jews began several years before the seizure, including 

that “[b]y the spring 1933, . . . the murder of Jews detained [in 

the Dachau concentration camp] went unprosecuted.” Id. ¶ 59. 

Moreover, in two statutes dealing with Nazi-era art-looting 

claims, Congress has expressly found that the Holocaust began 

in 1933. In the first statute—the very section of the FSIA at 

issue here—Congress provided jurisdictional immunity for 

certain art exhibition activities, 28 U.S.C. § 1605(h), but 

created an exception for art taken during the “Nazi[] era,” 

defined as beginning in January 1933, id. § 1605(h)(2)(A). In

the second, the HEAR Act, Congress again defined January 

1933 as the beginning of the Nazi era. HEAR Act § 4 (defining 

“covered period” as “beginning on January 1, 1933”). 

The heirs’ position finds further support in a timeline on 

the website of the United States Holocaust Memorial Museum, 

which Germany itself cites for its observation that the taking of 

the Welfenschatz predated the Nuremburg Laws. See 

Appellants’ Br. 40 n.23. That same timeline demonstrates that,

by the time of the taking in 1935, the Nazi government had 

already opened the Dachau concentration camp, excluded Jews 

from all civil-service positions, and organized a nationwide 

boycott of Jewish-owned businesses. 

Fourth, emphasizing that the definition of genocide 

includes an “intent to destroy,” Genocide Convention art. 2(c)

(emphasis added), Germany argues that this case differs from

Simon because unlike there, where the plaintiffs alleged that 

the takings were “aimed to deprive Hungarian Jews of the 

resources needed to survive as a people,” Simon, 812 F.3d at 

143, here the heirs allege that the Nazis wanted the 

Welfenschatz because it was “historically, artistically and 

national-politically valuable,” FAC ¶ 111. Elsewhere in the 
12

complaint, however, the heirs make clear that “[the Nazis] took 

the collection from [the Consortium] in order to ‘Aryanize’ 

[it].” Id. ¶ 25(iv). More specifically, the heirs allege that “the 

collection was wrongfully appropriated not least because [the 

Consortium members] were regarded as state’s enemies for 

holding the iconic Welfenschatz,” id. ¶ 25(ii), that “the 

Gestapo[] opened files on the members of the Consortium 

because of their ownership of the Welfenschatz and their 

prominence and success,” id. ¶ 67, and that “Prussian interest 

in the Welfenschatz was . . . revived . . . [once] the Consortium 

was . . . vulnerable,” id. ¶ 68. In short, the heirs have 

sufficiently alleged that in seizing the Welfenschatz the Nazis 

were motivated, at least in part, by a desire “to deprive 

[German] Jews of the resources needed to survive as a people.” 

Simon, 812 F.3d at 143.

Finally, unable to demonstrate that this case falls outside 

Simon’s reach, Germany warns that allowing this suit to go 

forward will “dramatically enlarge U.S. courts’ jurisdiction 

over foreign countries’ domestic affairs” by stripping

sovereigns of their immunity for any litigation involving a 

“transaction from 1933–45 between” a Nazi-allied government 

and “an individual from a group that suffered Nazi 

persecution.” Appellants’ Br. 42–43. But as we have just 

explained, our conclusion rests not on the simple proposition

that this case involves a 1935 transaction between the German 

government and Jewish art dealers, but instead on the heirs’

specific—and unchallenged—allegations that the Nazis took

the art in this case from these Jewish collectors as part of their

effort to “drive[] [Jewish people] out of their ability to make a 

living.” FAC ¶ 61. Because Germany has failed to carry its 

burden of demonstrating that these allegations do not bring the 

case within the expropriation exception as defined and applied 

in Simon, the district court properly denied Germany’s motion 

to dismiss. 
13

B.

In Simon we held that, with respect to foreign states (but 

not their instrumentalities), the expropriation exception’s

second requirement—“an adequate commercial nexus between 

the United States and the defendant[],” de Csepel, 859 F.3d at 

1101—is satisfied only when the property is present in the 

United States. Simon, 812 F.3d at 146. Because the Simon 

plaintiffs had offered but a “bare, conclusory assertion” to that 

effect, we dismissed the Republic of Hungary from the action. 

Id. at 148. We faced the same issue in de Csepel because the 

art at issue there was not in the United States. de Csepel, 859 

F.3d at 1107. Bound by Simon, we again dismissed the 

Republic of Hungary. Id.

Relying on Simon and de Csepel, Germany argues that 

because the Welfenschatz is in Berlin, not the United States, 

the Federal Republic of Germany must be dismissed. Although 

the heirs initially urged us to “reverse course on th[is] 

question,” Appellees’ Br. 34, as they acknowledged at oral 

argument, this panel is bound by Simon and de Csepel, Oral 

Arg. 50:14–40. Accordingly, on remand, the district court must

grant the motion to dismiss with respect to the Federal Republic 

of Germany—but not the SPK, an instrumentality for which the 

commercial-nexus requirement can be satisfied without the 

presence of the Welfenschatz in the United States. See de 

Csepel, 859 F.3d at 1007 (explaining that “an agency or 

instrumentality loses its immunity if” the agency or 

instrumentality owns or operates the property at issue and is 

engaged in commercial activity in the United States).

III.

In Simon, we left open the question whether a court, 

despite having jurisdiction over an expropriation claim, 

“nonetheless should decline to exercise [it] as a matter of 
14

international comity unless the plaintiffs first exhaust domestic 

remedies (or demonstrate that they need not do so).” Simon, 

812 F.3d at 149. In arguing that the answer to that question is 

yes, Germany does not claim, as it did in the district court, that 

we should defer to the Advisory Commission’s refusal to 

recommend the return of the Welfenschatz, see Philipp, 248 F. 

Supp. 3d at 81. Instead, Germany argues that the heirs must

“exhaust [their] remedies against [Germany] in [its] courts 

before pressing a claim against it elsewhere.” Appellants’ Br. 

65. “‘[B]ypass[ing] [its] courts,’” Germany insists, would 

“undermine [its] ‘dignity [as] a foreign state.’” Id. at 68

(quoting Republic of Philippines v. Pimentel, 553 U.S. 851, 866 

(2008)). The district court rejected this argument, as do we. 

The key case is the Supreme Court’s decision in Republic 

of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (2014), 

where Argentina claimed immunity from post-judgment 

discovery as a matter of international comity. The Court 

rejected that claim because nothing in the FSIA’s plain text 

provided for such immunity. Id. at 2255. As the Court

explained, although courts once decided on a case-by-case 

basis whether to grant foreign states immunity as matter of 

international comity, “Congress abated the bedlam in 1976, 

replacing the old executive-driven, factor-intensive, loosely 

common-law-based immunity regime with the [FSIA]’s 

‘comprehensive set of legal standards governing claims of 

immunity in every civil action against a foreign state.’” Id.

(quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 

480, 488 (1983)). “[A]fter the enactment of the FSIA,” the 

Court continued, “the Act—and not the pre-existing common 

law—indisputably governs the determination of whether a 

foreign state is entitled to sovereign immunity.” Id. at 2256 

(quoting Samantar v. Yousuf, 560 U.S. 305, 313 (2010)). Going 

forward, “any sort of immunity defense made by a foreign 
15

sovereign in an American court must stand on the Act’s text. 

Or it must fall.” Id.

Acknowledging that nothing in the text of the FSIA’s 

expropriation exception requires exhaustion, Germany argues

that applying NML Capital here “confuses immunity from 

jurisdiction with non-immunity common-law doctrines.” 

Appellants’ Reply Br. 38. The FSIA, Germany points out, 

operates as a pass-through, “granting jurisdiction yet leaving 

the underlying substantive law unchanged.” Id. at 39 (quoting

Owens v. Republic of Sudan, 864 F.3d 751, 763 (D.C. Cir. 

2017)). As Germany emphasizes, FSIA section 1606 provides 

that foreign states not entitled to immunity, “shall be liable in 

the same manner and to the same extent as a private individual 

under like circumstances.” Id. at 38 (quoting 28 U.S.C. 

§ 1606). According to Germany, “exhaustion is a nonjurisdictional common-law doctrine,” that, like forum non 

conveniens, “‘remains fully applicable in FSIA cases.’” Id. at 

39 (quoting Price v. Socialist People’s Libyan Arab 

Jamahiriya, 294 F.3d 82, 100 (D.C. Cir. 2002)). 

Germany’s effort to circumvent NML Capital fails for 

several reasons. To begin with, although a different provision 

of the FSIA, its terrorism exception, conditions jurisdiction on 

the claimant “afford[ing] the foreign state a reasonable 

opportunity to arbitrate the claim,” 28 U.S.C. 

§ 1605A(a)(2)(A)(iii), no such requirement appears in the 

expropriation exception, and we have long recognized “the 

standard notion that Congress’s inclusion of a provision in one 

section strengthens the inference that its omission from a 

closely related section must have been intentional,” Agudas 

Chasidei Chabad of U.S. v. Russian Federation, 528 F.3d 934, 

948 (D.C. Cir. 2008). Moreover, far from demonstrating that 

the FSIA leaves room for an exhaustion requirement, the very 

FSIA provision that Germany relies on, section 1606,
16

forecloses that possibility. By its terms, that provision permits 

only defenses, such as forum non conveniens, that are equally 

available to “private individual[s],” 28 U.S.C. § 1606.

Obviously a “private individual” cannot invoke a “sovereign’s

right to resolve disputes against it.” Appellants’ Br. 68 

(emphasis added). 

To be sure, the Seventh Circuit, in a case similar to Simon, 

required the plaintiffs—survivors of the Hungarian Holocaust 

and the heirs of other victims—to “exhaust any available 

Hungarian remedies or [show] a legally compelling reason for 

their failure to do so,” Fischer v. Magyar Allamvasutak Zrt., 

777 F.3d 847, 852 (7th Cir. 2015). In doing so, the court 

distinguished NML Capital, holding that “defendants need not 

rely on . . . the FSIA,” but may “invoke the well-established 

rule that exhaustion of domestic remedies is preferred in 

international law as a matter of comity.” Id. at 859. The 

Seventh Circuit drew that “well-established rule” from a 

provision of the Third Restatement of Foreign Relations Law 

of the United States, but as this court has explained, that 

“provision addresses claims of one state against another,”

Agudas Chasidei Chabad of U.S. v. Russian Federation, 528 

F.3d 934, 949 (D.C. Cir. 2008). Confirming that interpretation, 

the tentative draft of the Fourth Restatement explains that “the 

rule cited by the [Seventh Circuit] applies by its terms to

‘international . . . proceedings,’” Restatement (Fourth) of 

Foreign Relations Law of the United States § 455 Reporters’ 

Note 9 (Am. Law Inst., Tentative Draft No. 2, 2016)—i.e., 

“nation vs. nation litigation,” Chabad, 528 F.3d at 949; see also 

Agudas Chasidei Chabad of U.S. v. Russian Federation, 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.”). And as we explained above, the 

FSIA, Congress’s “comprehensive” statement of foreign 

sovereign immunity, which “is, and always has been, a ‘matter 
17

of grace and comity,’” NML Capital, 134 S.Ct. at 2255

(quoting Verlinden, 461 U.S. at 486), leaves no room for a

common-law exhaustion doctrine based on the very same 

considerations of comity. 

In so concluding, we have considered the contrary position 

advanced by the United States in an amicus brief recently filed 

before a different panel of this court, where it argued that “[t]he 

fact [that] the FSIA itself does not impose any exhaustion 

requirement for expropriation claims . . . does not foreclose 

dismissal on international comity grounds.” Brief of United 

States as Amicus Curiae at 14–15, Simon v. Republic of 

Hungary, No. 17-7146 (D.C. Cir. June 1, 2017). This position, 

of course, is flatly inconsistent with NML Capital, a case the 

government fails to cite, relying instead on non-FSIA cases, see 

id. at 15. Accordingly, nothing in the government’s brief alters

our conclusion that the heirs have no obligation to exhaust their 

remedies in Germany.

Germany protests that, as a “staunch U.S. ally,” it 

“deserves the chance to address [the heirs’] attacks” in its own 

courts. Appellants’ Br. 77. As the Court made clear in NML 

Capital, however, such “apprehensions are better directed to 

that branch of government with authority to amend the 

[FSIA].” NML Capital, 134 S. Ct. at 2258. 

IV.

This brings us, finally, to Germany’s argument that the 

heirs’ state-law causes of action—replevin, conversion, unjust 

enrichment, and bailment—conflict with, and thus are

preempted by, United States foreign policy. In support, 

Germany cites the Washington Principles, which “encouraged” 

nations “to develop . . . alternative dispute-resolution 

mechanisms for resolving ownership issues,” Washington 

Principles ¶ 11, as well the Terezin Declaration, a follow-up 
18

agreement also urging alternative dispute resolution. 

According to Germany, “letting [the heirs] press [the] same 

claims” they already presented to the Advisory Commission 

“again in a U.S. court” may cause signatories to the 

Washington Principles to “question whether [they] should 

follow the [] Principles,” thereby “undermin[ing] the 

considerable diplomatic effort that the U.S. devoted to them.” 

Appellants’ Br. 56–57.

Germany relies principally on two cases, American 

Insurance Association v. Garamendi, 539 U.S. 396 (2003), and 

Crosby v. National Foreign Trade Council, 530 U.S. 363 

(2000). In Garamendi, the Supreme Court began by reiterating 

the basic rule that “at some point an exercise of state power that 

touches on foreign relations must yield to the National 

Government’s policy, given the ‘concern for uniformity in this 

country’s dealings with foreign nations’ that animated the 

Constitution’s allocation of the foreign relations power to the 

National Government in the first place.” Garamendi, 539 U.S. 

at 413 (quoting Banco Nacional de Cuba v. Sabbatino, 376 

U.S. 398, 427 n.25 (1964)). Applying that rule to the facts of 

the case before it, the Court found California’s attempt to 

regulate Holocaust-era insurance claims preempted by “the 

foreign policy of the Executive Branch, as expressed 

principally in . . . executive agreements with Germany, Austria, 

and France.” Id. In those executive agreements, the United 

States had “promised to use its ‘best efforts, in a manner it 

considers appropriate,’ to get state and local governments to 

respect [an internal dispute resolution process] as the exclusive 

mechanism.’” Id. at 406 (quoting Agreement Concerning the 

Foundation “Remembrance, Responsibility and the Future,” 

Ger.-U.S., July 17, 2000, 39 I.L.M. 1298, 1300). In particular, 

the United States agreed that in any case involving Holocaustera insurance claims, it would submit a statement “‘that U.S. 

policy interests favor dismissal on any valid legal ground.’” Id.
19

(quoting Agreement Concerning the Foundation 

“Remembrance, Responsibility and the Future,” 39 I.L.M. at 

1304). Acknowledging that the executive agreements 

contained no preemption clause, the Court nonetheless 

concluded that the “express federal policy and the clear conflict 

raised by the [California] statute. . . require[d] state law to 

yield.” Id. at 425.

Similarly, in Crosby, the Court found Massachusetts’s 

regulation of commerce with Burma to be “an obstacle to the 

accomplishment of Congress’s full objectives under [a] federal 

Act” that imposed some economic sanctions on Burma and 

gave the President discretion to impose more. 530 U.S. at 373. 

The Massachusetts law, the Court explained, by “imposing a 

different, state system of economic pressure against the 

Burmese political regime,” could “blunt the consequences of 

discretionary Presidential action,” id. at 376.

This case is very different. Although the Washington 

Principles and Terezin Declaration both “encourage[]” nations 

“to develop . . . alternative dispute resolution mechanisms for 

resolving ownership issues,” Washington Principles ¶ 11, 

neither requires that the alternative mechanisms be exclusive or 

otherwise “takes an explicit position in favor of or against the 

litigation of claims to Nazi-confiscated art.” Brief of United 

States as Amicus Curiae at 18, Saher v. Norton Simon Museum 

of Art at Pasadena, 131 S. Ct. 3055 (2011) (No. 09-1254), 2011 

WL 2134984, at *18. Unlike in Garamendi, where the 

President promised to seek “dismissal on any valid legal 

ground,” 539 U.S. at 406 (internal quotation marks omitted), or 

in Crosby, where the state law at issue “blunt[ed]” the force of 

discretion Congress had explicitly granted the President, 530 

U.S. at 376, here, as the district court explained, there is no 

“direct conflict between the property-based common law 
20

claims raised by Plaintiffs and [United States] foreign policy,” 

Philipp, 248 F. Supp. 3d at 78.

Indeed, far from adopting, as in Garamendi, an “express 

federal policy,” 539 U.S. at 425, of disfavoring domestic 

litigation of Nazi-era art-looting claims, the United States has 

repeatedly made clear that it favors such litigation. Congress, 

as explained above, see supra at 8, recently extended statutes 

of limitation for Nazi-era art-looting claims, see HEAR Act

§ 4, and the FSIA exempts them from the jurisdictional 

immunity otherwise afforded certain art collections

temporarily exhibited in the United States, see 28 U.S.C. 

§ 1605(h)(1)–(3).

V.

For the foregoing reasons, we affirm the district court’s 

denial of the motion to dismiss, except that on remand, the 

district court must, as required by Simon and de Csepel, grant

the motion to dismiss with respect to the Federal Republic of 

Germany.

So ordered.