1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

DAVID L. de CSEPEL, et al., 

Plaintiffs, 

vs. 

REPUBLIC OF HUNGARY, 

et al., 

Defendants. 

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) No. 1:10-cv-01261(ESH)

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MEMORANDUM OPINION 

 Plaintiffs David L. de Csepel, Angela Maria Herzog, and Julia Alice Herzog bring this 

action to recover artwork they allege is being wrongfully held by the Republic of Hungary, 

Hungarian National Gallery, Museum of Fine Arts, Museum of Applied Arts, Budapest 

University of Technology and Economics, and the Hungarian National Asset Management Inc., 

otherwise known as “MNV” (collectively, “defendants”). Before the Court is defendants’ motion 

to dismiss. (See Mot. to Dismiss, ECF No. 148.) 

 For the reasons stated herein, the Court will grant defendants’ motion in part and deny it 

in part. 
2 

BACKGROUND 

I. FACTUAL BACKGROUND1

 “Baron Mór Lipót Herzog was a Jewish Hungarian art collector who amassed a 

collection of over 2,000 paintings, sculptures, and other pieces of artwork” prior to his death in 

1934. de Csepel v. Republic of Hungary, 169 F. Supp. 3d 143, 148 (D.D.C. 2016). Upon his 

wife’s death several years later, the collection was divided amongst their three children, 

Erzsébet (Elizabeth), István and András.2 (See Am. Compl. ¶ 38, ECF No. 141.) 

 “During the Holocaust, Hungarian Jews, including the Herzogs, were required to 

register their art treasuries.” de Csepel, 169 F. Supp. 3d at 148. A 1944 decree required 

Hungarian Jews to register all valuables in excess of a certain threshold amount. (See Am. 

Compl. ¶ 54.) A subsequent decree “established a so-called Commission for the Recording and 

Safeguarding of Impounded Art Objects of Jews (the ‘Commission for Art Objects’), and 

required Hungarian Jews promptly to register all art objects in their possession.” (Id. ¶ 55.) 

This Commission was led by Dénes Csánky, then-Director of the Museum of Fine Arts. (See 

id.) 

 In an attempt to avoid its confiscation, the Herzog family in 1943 hid much of their 

collection in the cellar of a family factory in Budafok. (See id. ¶ 57.) However, “[d]espite their 

 

1

 The facts relating to this case have been set out in greater detail by this Court in its two prior 

opinions, see de Csepel v. Republic of Hungary, 808 F. Supp. 2d 113 (D.D.C. 2011), and 169 F. 

Supp. 3d 143 (D.D.C. 2016), as well as by the Court of Appeals in its two opinions, see 714 F.3d 

591 (D.C. Cir. 2013), and 859 F.3d 1094 (D.C. Cir. 2017). As a result, the Court’s recitation of 

the facts at this juncture will be brief; additional facts will be recounted as necessary to explain 

the Court’s decision. 

2

 Plaintiff David de Csepel has been assigned all rights to the works in this action attributable to 

his grandmother, Elizabeth, and her brother, István. (See Am. Compl. ¶¶ 39, 41.) Plaintiffs 

Angela and Julia Herzog, who now reside in Italy, have full rights to all the works in the action 

attributable to their father András. (See id. ¶ 40.) 
3 

efforts to prevent the looting of the art, the Hungarian government and their Nazi[] 

collaborators discovered the hiding place.” (Id. ¶ 58.) A 1944 article quoted Csánky as saying 

that “‘[t]he Mór Herzog collection contains treasures the artistic value of which exceeds that of 

any similar collection in the country. . . . If the state now takes over these treasures, the 

Museum of Fine Arts will become a collection ranking just behind Madrid.’” (Id.) 

 The Herzog family scattered, trying to avoid extermination by the Nazis and the Nazicontrolled Hungarian government. In May 1944, Elizabeth and her children fled Hungary, 

eventually settling in the United States in 1946. (See id. ¶ 62.) Elizabeth became a United 

States citizen on June 23, 1952. (See id.) András was sent into forced labor in 1942 and died in 

1943, but his wife and children escaped to Italy. (See id. ¶¶ 40, 63.) “Hungary attempted to 

send István Herzog to the infamous Auschwitz death camp[, but h]e escaped after his former 

sister-in-law’s husband . . . arranged for him to be put in a safe house under the protection of 

the Spanish Embassy.” (Id. ¶ 41.) He remained in Hungary until his death in 1966. (See id.) 

 In May 1945, German rule in Hungary ended, and a 1947 Peace Treaty between 

Hungary and the Allies confirmed “that Hungary was to act solely as a custodian or trustee of 

looted or heirless property [and] under no circumstances could Hungary itself possess any right, 

title or interest in that property.” (Id. ¶ 68.) Nevertheless, while some pieces of the Herzog 

collection were returned to the siblings or their representatives, many others were not. 

Moreover, the government sought “substantial fees to cover the cost of recovering the artwork 

from the countries to which it had been dispersed during the war,” as well as large payments for 

export licenses to remove paintings from Hungary. (See id. ¶ 70.) For example, in lieu of a 

duty of 40,000 forints to repay the cost of repatriating several of András’s pieces from outside 

the country, the Hungary’s Minister of Finance accepted an artwork entitled “Still Life with 
4 

Turkey” by Chardin. (See Declaration of Irene Scholl-Tatevosyan (“Scholl-Tatevosyan Decl.”) 

Ex. 5, ECF No. 148-2.) The letter that memorialized that transaction also noted the Herzog 

siblings’ options should they want to export any of their returned artworks. First, the state had 

the option to purchase any piece for which its owners requested export permits. (See id.) 

Second, if the state chose not to exercise its option, “40% of the estimated value [of the piece 

was] payable for the export permit” if Hungary’s National Bank allowed the issuance of a 

permit at all. (See id. (noting some permit requests had been denied).) 

Some pieces were returned to the siblings or to their representatives in Hungary but 

were taken back into governmental custody soon thereafter either as “deposits” with the 

museums or due to government actions, such as the smuggling prosecution of István’s wife, or 

payments of tax bills purportedly owed by István or his siblings. (See Am. Compl. ¶ 71.) In 

1948, the Hungarian police investigated Ilona Kiss, István’s former wife, on the charge of 

smuggling several artworks out of the country for sale. (See Declaration of Jessica Walker 

(“Walker Decl.”) Ex. G-2, ECF No. 148-15.) According to police reports, Kiss, along with her 

brother and a third individual, smuggled to Switzerland at least three paintings that had 

previously belonged to István. (See id.) Kiss was indicted in 1949 (see Declaration of Irene 

Tatevosyan (“Tatevosyan Decl.”) Ex. 19, ECF No. 106-3), and in October 1950 fourteen 

artworks were forfeited and taken into permanent custody by the Museum of Fine Arts as a 

result of the judgment in that case. (See Walker Decl. Ex. G-6.) These works included not only 

those attributable to István or Kiss, but also several that belonged to András and Elizabeth. 

 In 1949, Hungary became the Hungarian People’s Republic, and little was known about 

the Herzog collection until the collapse of Communism in 1989. (See Am. Compl. ¶ 74.) 

However, “[w]ith the opening of Hungary to the West in 1989, the Herzog Heirs started making 
5 

inquiries and learned that many pieces of the Herzog Collection were being openly exhibited, 

hanging on the walls of the Hungarian National Gallery and the Museum of Fine Arts.” (Id. 

¶ 76.) Elizabeth negotiated with the Hungarian government and received seven pieces (all from 

lesser-known artists) before her death in 1992. (See id. ¶ 77.) 

Her daughter, Martha Nierenberg, continued to negotiate on Elizabeth’s behalf but 

ultimately decided to pursue legal remedies against Hungary, filing suit in a Hungarian court in 

1999, in what has been referred to as the “Nierenberg Litigation.” (See id. ¶ 78.) Her 

complaint identified a number of pieces she alleged belonged to the Herzog siblings, including 

artworks that belonged to István, András, and her mother, Elizabeth. However, she petitioned 

the court only for return of ten artworks (later amended to twelve) attributed to Elizabeth. (See 

Scholl-Tatevosyan Decl. Ex. 20, ECF 148-3; see also Pls.’ Opp. at 13, ECF No. 153.) “To 

protect the interests of all three Herzog siblings, the heirs of András and István Herzog retained 

counsel and were brought into the lawsuit at the instruction of the Hungarian court” (see Mot. 

to Dismiss at 6); however, heirs of the other two siblings ultimately declined to participate. 

During the course of the litigation, Nierenberg received one of the paintings claimed in her 

petition, Mihály Munkácsy’s “Half-Length Portrait of Christ” (also known as “Bust of Christ”), 

which was accepted by her attorney in Hungary in April 2000, as it could not be taken out of 

the country. (See Scholl-Tatevosyan Decl. Exs. 22-24, ECF No. 148-4.) “The Budapest 

Municipal Court initially recognized and acknowledged the Herzog Heirs’ ownership rights in 

the paintings at issue . . . .” (Am. Compl. ¶ 78.) However, in January 2008, “an appellate court 

reversed the lower court’s decision ordering restitution and rejected the demand” for return of 

the artworks. (Id.) 

 
6 

II. PROCEDURAL HISTORY 

Plaintiffs filed this action in 2010 asserting claims based on bailment, conversion, 

constructive trust, accounting, unjust enrichment, replevin, and declaratory relief. (See Compl., 

ECF No. 1; see also Am. Compl.) They asked for either a return of the artworks or for 

monetary damages. (See Compl. at 35-36.) 

A. First Motion to Dismiss 

Defendants filed their initial motion to dismiss on February 15, 2011. (See First Mot. to 

Dismiss, ECF No. 15.) Defendants claimed plaintiffs’ case must be dismissed for several 

reasons: (1) various treaties and international agreements barred the suit; (2) the Court lacked 

jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq.; 

(3) forum non conveniens; (4) statute of limitations; (5) act of state; and (3) comity, res 

judicata, and collateral estoppel arising from the Nierenberg Litigation. (See First Mot. to 

Dismiss at ii.) 

 By memorandum opinion issued on September 1, 2011, this Court granted in part and 

denied in part defendant’s motion. See de Csepel v. Republic of Hungary, 808 F. Supp. 2d 113 

(D.D.C. 2011). The Court concluded that it had jurisdiction under the FSIA’s expropriation 

exception, see id. at 132–33, and that the rest of defendants’ defenses were either premature or 

without merit, with the exception of international comity. Because “the record is devoid of 

evidence of either prejudice in the court, or in the system of laws under which it was sitting, or 

fraud in procuring the judgment, or any other special reason why the comity of this nation 

should not allow it full effect,” the Court granted defendants’ motion to dismiss with respect to 

the eleven pieces of artwork at issue in the Nierenberg Litigation. Id. at 145 (internal quotation 

marks omitted). 
7 

 Because the Court denied sovereign immunity, that portion of its order was immediately 

appealable. See de Csepel v. Republic of Hungary, 2011 WL 13244741, at *1 n.2 (D.D.C. Nov. 

30, 2011). The Court also granted certification on the remaining issues addressed in the 

Memorandum Opinion, concluding that the statutory criteria for interlocutory appeal under 28 

U.S.C. § 1292(b) were met. Id. at *2. On April 19, 2013, the Court of Appeals affirmed this 

Court’s opinion in part and reversed it in part. See de Csepel v. Republic of Hungary, 714 F.3d 

591 (D.C. Cir. 2013). The Court of Appeals concluded that plaintiffs’ complaint alleged 

sufficient facts to bring it within the FSIA’s commercial activity exception, see id. at 601, and 

that the FSIA’s treaty exception was not implicated. See id. at 603. The Court of Appeals, like 

this Court, rejected defendants’ remaining defenses as either premature (statute of limitations) 

or lacking in merit (political question, act of state, and forum non conveniens). The Court of 

Appeals, however, reversed this Court’s decision to accord comity to the Nierenberg decision, 

concluding that “[t]he complaint’s allegations of due process violations present just the kind of 

fact-intensive issues inappropriate for resolution on a Rule 12(b)(6) motion.” Id. at 607. 

 B. Renewed Motion to Dismiss 

On remand, defendants filed an answer to plaintiffs’ complaint (see Answer, ECF No. 

76), and the parties conducted discovery. On May 14, 2014, defendants filed their second 

motion to dismiss. (See Second Mot. to Dismiss, ECF No. 86.) This motion focused solely on 

defendants’ contention that the Court lacked jurisdiction under the FSIA but was denied 

without prejudice while discovery continued. See 75 F. Supp. 3d 380, 387 (D.D.C. 2014). On 

May 18, 2015, defendants filed a renewed motion to dismiss again arguing that the Court 

lacked subject matter jurisdiction under either the FSIA’s expropriation exception or its 

commercial activity exception. (See Renewed Mot. to Dismiss, ECF No. 106.) 
8 

 On March 14, 2016, the Court granted defendants’ motion in part and denied it in part. 

See de Csepel v. Republic of Hungary, 169 F. Supp. 3d 143 (D.D.C. 2016). The Court 

concluded that while the FSIA’s commercial activity exception did not apply, the expropriation 

exception did. See id. at 163–64. However, the Court dismissed plaintiffs’ claims as to two of 

the artworks listed in the complaint, as “[t]here is no evidence in the record that the two 

paintings were among the Collection items confiscated during World War II.”3 Id. at 165. The 

Court also rejected defendants’ remaining claims regarding subject matter jurisdiction, the 

FSIA’s treaty exception, and exhaustion. 

 On June 20, 2017, the Court of Appeals again affirmed in part and reversed in part. See 

de Csepel v. Republic of Hungary, 859 F.3d 1094 (D.C. Cir. 2017). It approved this Court’s 

conclusion that the FSIA’s expropriation exception applied, as “‘rights in property taken in 

violation of international law’ are ‘in issue’ as to those twenty-five or so artworks taken by 

Hungary during the Holocaust and never returned.” Id. at 1103. However, it directed this 

Court on remand to “consider, in the first instance, the Herzog family’s claims to those pieces 

returned by Hungary,” which it estimated to be approximately fifteen. Id. at 1103-04. And, 

following the standard announced in Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 

2016), the Court of Appeals concluded that the Court lacked jurisdiction over Hungary, as the 

first clause of the commercial-activity nexus requirement of the expropriation exception to the 

FSIA had not been met in this case. See de Csepel, 859 F.3d at 1107 (“Applying Simon to the 

facts of this case, we have jurisdiction through only the second clause of the commercialactivity nexus requirement, meaning that the Republic of Hungary retains its FSIA immunity.”). 

 

3

 The dismissed pieces were (1) Lucas Cranach the Elder, The Annunciation to Saint Joachim, 

16(vi) in the complaint; and (2) John Opie, Portrait of a Lady, half-length, in a White Bonnet, 

16(xiii). 
9 

 Lastly, the Court of Appeals directed this Court on remand (1) to consider whether any 

artworks, other than the two already dismissed by this Court, were taken by Hungary after 

Elizabeth became a citizen in 1952, see id. at 1108; and (2) to allow plaintiffs to amend their 

complaint to account for the Holocaust Expropriated Art Recovery Act of 2016 (the “HEAR 

Act”). See id. at 1109. It declined to address defendants’ exhaustion claim as defendants 

“made no argument that the collateral order doctrine applies to denial of a motion to dismiss on 

freestanding exhaustion grounds.” See id. at 1109. 

 C. The Instant Motion to Dismiss 

 This case is now on remand from the Court of Appeals for the second time. Plaintiffs 

filed an amended complaint on December 18, 2017 (see Am. Compl., ECF No. 141), which not 

only added reference to the HEAR Act, but also added a new defendant, the Hungarian 

National Asset Management Inc. (“MNV”). (See id. ¶ 14.) Moreover, the amended complaint 

alleges that the “Court has jurisdiction over Hungary pursuant to 28 U.S.C. §1605(a)(3) because 

MNV is so extensively controlled by Hungary that a relationship of principal and agent exists 

between Hungary and MNV.” (Id. ¶ 36.) 

On February 9, 2018, defendants filed the instant motion to dismiss. Defendants’ 

motion makes the following arguments: (1) MNV is not properly added, it is immune, and its 

actions cannot be attributed to Hungary for purposes of abrogating the latter’s sovereign 

immunity; (2) Hungary is a necessary party and thus the case must be dismissed pursuant to 

Federal Rule of Civil Procedure Rule 19; (3) the Court lacks jurisdiction under the FSIA over 

certain pieces of art that were returned to the Herzog siblings after the war, or were settled 

under an agreement concluded between the United States and Hungary in 1973; and (4) as to 

the pieces over which the Court has jurisdiction, various other defenses require dismissal under 
10 

Rule 12(b)(6). 

 After the motion was fully briefed, plaintiffs requested the case be stayed pending 

resolution of their petition for a writ of certiorari, which defendants did not oppose. (See Mot. 

to Stay, ECF No. 158.) Plaintiffs’ question to the Supreme Court was whether the Court of 

Appeals correctly interpreted the FSIA’s expropriation exception when it concluded that 

foreign states and agencies or instrumentalities had to meet different commercial-nexus 

requirements. See Petition for Cert. at i, Docket No. 17-1165 (Feb. 16, 2018). The case was 

stayed until January 2019, when plaintiffs’ petition was denied by the Supreme Court. (See 

Joint Status Report at 1, ECF No. 163.) During the stay the Court of Appeals issued two 

opinions related to issues in this case: Simon v. Republic of Hungary, 911 F.3d 1172 (D.C. Cir. 

2018), and Philipp v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir. 2018). The parties 

submitted supplemental briefing regarding these cases. (See Joint Status Report at 2.) 

Argument was held on defendants’ motion on January 13, 2020, and the parties filed additional 

supplemental briefing on January 24, 2020. (See ECF Nos. 175, 176.) 

ANALYSIS 

I. AMENDMENT 

 In its most recent opinion, the Court of Appeals ordered Hungary dismissed from this 

litigation after concluding that Hungary’s sovereign immunity was not abrogated under the 

expropriation exception. On remand, plaintiffs filed an amended complaint that, inter alia, adds 

MNV as a defendant. Plaintiffs argue that MNV is properly added as an agency or 

instrumentality of Hungary under the second clause of FSIA’s expropriation exception. See note 

4, infra. Furthermore, they contend that MNV “is so extensively controlled by Hungary that a 

relationship of principal and agent exists between Hungary and MNV,” such that MNV’s actions 
11 

can be imputed to Hungary to abrogate Hungary’s sovereign immunity. (See Am. Compl. ¶ 36.) 

As a result, plaintiffs argue not only that MNV belongs in the case, but also that Hungary should 

remain as a defendant. 

 Defendants, on the other hand, argue that MNV is not properly added for two reasons: (1) 

plaintiffs’ amended complaint goes beyond the Court of Appeals’ mandate, which only allowed 

for amendment to add allegations relating to the HEAR Act (see Mot. to Dismiss at 10–14); and 

(2) MNV is properly analyzed as part of the Hungarian state itself, rather than as its agency or 

instrumentality, so it is immune from suit for the same reason that Hungary was found to be 

immune. (See id. at 15 (“Because MNV’s ‘core functions’ are governmental, not commercial, 

MNV is part of the ‘foreign state’ and . . . is, therefore, entitled to the same immunity as 

Hungary.”).) Moreover, defendants contend that even if MNV is properly added as a defendant, 

its actions cannot be imputed to Hungary, so Hungary remains immune. (See id. at 21–22.) 

 The Court concludes that MNV has been properly added as a defendant, since its addition 

does not go beyond the Court of Appeals’ mandate and is proper under the FSIA, but that 

MNV’s actions cannot be imputed to Hungary so as to abrogate its immunity. Thus, Hungary is 

dismissed in accordance with the Court of Appeals’ opinion. See de Csepel, 859 F.3d at 1110 

(“We also instruct the district court to dismiss the Republic of Hungary as a defendant . . . .”). 

 A. The Addition of MNV as a Defendant 

Defendants argue that “Plaintiffs’ amendments go beyond the scope of the appellate 

court’s mandate as Plaintiffs did not seek, nor receive, leave to include a new defendant—a 

defendant that Plaintiffs admit they learned of years ago.” (Mot. to Dismiss at 12.) “The 

decision of a federal appellate court establishes the law binding further action in the litigation by 

another body subject to its authority.” USPS v. Postal Regulatory Comm’n, 747 F.3d 906, 910 
12 

(D.C. Cir. 2014) (quoting City of Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. 

Cir. 1977)). A district court must “scrupulously avoid implementing the mandate in a manner 

that exceeds, or limits, the scope of the appellate decision.” Texas Oil & Gas Corp. v. Hodel,

654 F. Supp. 319, 323 (D.D.C. 1987). However, “the only issues the reconsideration of which 

activate the doctrine [of law of the case] are those decided either explicitly or by necessary 

implication by the higher court.” Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. 

Supp. 2d 168, 182 (D.D.C. 2005) (internal quotation marks omitted). 

The Court concludes that plaintiffs’ ability to add a new party is not foreclosed by the 

Court of Appeals’ decision. In Simpson, Judge Urbina rejected the argument that the principle of 

inclusio unius est exclusio alterius should apply to allow amendment on one issue but not 

another when the other issue was not considered by the appeals court. See id. At oral argument 

before the Court of Appeals in this case there was an exchange between Circuit Judge Tatel and 

plaintiffs’ attorney in which she repeatedly suggested that plaintiffs would like to amend the 

complaint. While Judge Tatel suggested the amendment would be to amend plaintiffs’ complaint 

to add the newly enacted HEAR Act (see Mot. to Dismiss at 13 n.3), his questions focused on 

whether plaintiffs needed anything from the Court beyond leave to amend, rather than suggesting 

that leave to amend had to be restricted to only one topic. Furthermore, until Hungary was 

dismissed when the Court of Appeals issued its opinion, there was no need for plaintiffs to 

consider adding a new party, even one they may have known about since the beginning of the 

litigation. As the Court of Appeals noted, the Federal Rules of Civil Procedure direct courts to 

“freely give leave [to amend] when justice so requires.” See de Csepel, 859 F.3d at 1110 

(quoting Fed. R. Civ. P. 15(a)(2)). The Court thus concludes that the Court of Appeals’ mandate 

does not prevent MNV’s addition. 
13 

B. Whether MNV’s Core Functions are Commercial or Governmental 

Defendants next argue that, even if plaintiffs are permitted to amend their complaint to 

add MNV as a defendant, MNV is properly considered a part of Hungary and thus, like Hungary, 

retains its immunity. (See Mot. to Dismiss at 15.) Under the FSIA’s expropriation exception, 

“[a] foreign state loses its immunity if the claim against it satisfies the exception by way of the 

first clause of the commercial-activity nexus requirement[, . . . while] an agency or 

instrumentality loses its immunity if the claim against it satisfies the exception by way of the 

second clause.” de Csepel, 859 F.3d at 1107.4 Defendants do not contest plaintiffs’ allegations 

that MNV, as asset manager for the State of Hungary, “operates” the property at issue in 

Hungary, and that it also “engage[s] in a commercial activity in the United States.” See 28 

U.S.C. § 1605(a)(3); (see also Am. Compl. ¶ 35). As a result, the only question relevant to 

determining MNV’s immunity under the FSIA is whether MNV is an “agency or 

 

4

 The expropriation exception, 28 U.S.C. § 1605(a)(3), provides that a foreign state shall be 

stripped of its immunity: 

[I]n any case . . . in which rights in property taken in violation of international law 

are in issue and that property or any property exchanged for such property is 

present in the United States in connection with a commercial activity carried on in 

the United States by the foreign state . . . . 

An agency or instrumentality of a foreign state, on the other hand, is stripped of its 

immunity: 

[I]n any case . . . in which rights in property taken in violation of international law 

are in issue and . . . that property or any property exchanged for such property 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. 

Id. For a more thorough explanation of the expropriation exception, see de Csepel, 859 F.3d at 

1101 (explaining the two requirements of the expropriation exception, the “rights in property” 

requirement and the two clauses of the commercial-nexus requirement). 
14 

instrumentality” of Hungary or its political subdivision. 

“Because Section 1603(a) defines ‘foreign state’ as including ‘agencies and 

instrumentalities,’ the distinction between the two is only relevant in [the] FSIA where explicitly 

drawn.” Jacobsen v. Oliver, 451 F. Supp. 2d 181, 195 (D.D.C. 2006); see also 28 U.S.C.

§ 1603(a) (defining a “foreign state” to “include[] a political subdivision of a foreign state or an 

agency or instrumentality of a foreign state as defined in subsection (b)”) . An “agency or 

instrumentality” is any entity: 

(1) [W]hich is a separate legal person, corporate or otherwise, and 

(2) which is an organ of a foreign state or political subdivision thereof, or 

a majority of whose shares or other ownership interest is owned by a foreign state 

or political subdivision thereof, and 

(3) which is neither a citizen of a State of the United States as defined in 

section 1332(c) and (e) of this title, nor created under the laws of any third 

country. 

Id. § 1603(b). 

When a court is “concerned with the meaning of the statutory terms ‘foreign state’ and 

‘agency or instrumentality,’” TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 

325 (D.C. Cir. 2005), the Court of Appeals has instructed courts to use the “core functions” test. 

See Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994). Transaero held 

that a court must look to “whether the core functions of the foreign entity are predominantly 

governmental or commercial” when determining whether it is a “separate legal person” from the 

foreign state. 30 F.3d at 151. Because “any nation may well find it convenient (as does ours) to 

give powers of contract and litigation to entities that on any reasonable view must count as part 

of the state itself,” this categorical approach “winnow[s] the applications” of the definition of 

agency or instrumentality to just those Congress intended, i.e., primarily public commercial 

enterprises. See id. at 152. While Transaero’s test was originally formulated to analyze 
15 

§ 1608’s requirements for service of process, the Court of Appeals has extended it to 

§ 1605(a)(3). See Crist v. Republic of Turkey, 107 F.3d 922, 1997 WL 71739, at *2 (D.C. Cir. 

1997) (“Notably, section 1603 does provide a different definition of ‘foreign state’ for use in 

section 1608 as opposed to the rest of the FSIA, and that section 1603 does not similarly 

establish different definitions of ‘agency or instrumentality’ is even more compelling evidence 

that ‘agency or instrumentality’ should be read the same in sections 1608 and 1605.”); see also 

Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (applying the Transaero 

test to § 1605). 

Applying this test, most courts have concluded that “intelligence and security activities,” 

for example, will almost always be governmental rather than commercial. See Jacobsen, 451 F. 

Supp. 2d at 197 (citing Regier v. Islamic Republic of Iran, 281 F. Supp. 2d 87, 102 (D.D.C. 

2003), abrogated on other grounds by Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 

1024, 1033 (D.C. Cir. 2004)); see also S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 108 

(D.D.C. 2012) (collecting cases). On the other end of the spectrum, as described in Transaero, 

are entities such as “a state trading corporation, a mining enterprise . . . or a steel company.” 30 

F.3d at 152 (quoting H.R. Rep. No. 94-1487, at 15-16 (1976)). In the middle are cases involving 

cultural and financial institutions. 

 For example, in Taylor v. Kingdom of Sweden, 2019 WL 3536599 (D.D.C. Aug. 2, 2019), 

Judge Leon concluded that, under Transaero’s test, Sweden’s National Museums of World 

Culture (“NMWC”), a government agency, “is ‘so closely bound up with the structure of the’ 

Swedish sovereign that it is properly ‘considered as the “foreign state” itself’ under § 

1605(a)(3).” Id. at *3 (quoting Transaero, 30 F.3d at 153). According to Taylor, the NMWC’s 

functions “include the promotion of Sweden’s view of world culture to its own citizens and the 
16 

international community as well as the country’s ability to share that world view with people and 

institutions domestically and around the world.” Id. And, in Garb v. Republic of Poland, 440 

F.3d 579 (2d Cir. 2006), the Second Circuit concluded that Poland’s Ministry of Treasury was 

not an “agency or instrumentality” for purposes of the FSIA’s takings exception, but an “integral 

part of Poland’s political structure.” Id. at 594 (internal quotation marks omitted). 

Focusing on MNV’s structure, the Court finds these cases inapposite. The nongovernmental nature of MNV is apparent in light of Hungary’s choice several decades ago to 

transform its asset manager from a governmental agency into a joint-stock company to take 

advantage of the benefits of corporate law. (See Declaration of Dr. Bernadette Somody ¶ 17 

(quoting the Explanatory Memorandum to the 1992 Act creating MNV’s predecessor 

organization, which said that “[f]or the management of the permanently state-owned 

entrepreneurial assets it is reasonable to establish a joint stock company instead of a 

governmental agency” (emphasis added)), ECF No. 153-1 (“Somody Decl.”).) Hungary used to 

manage its assets using a state agency controlled by Parliament. (See id.) However, in 1992, it 

decided to transfer such functions to a joint-stock company, as such a structure would allow the 

company to more easily obtain loans, issue bonds, and act on the private market. (See id.) And 

Hungary’s Constitutional Court has held that, because of this new structure, MNV cannot 

exempt itself from certain aspects of corporate law, as “the State’s roles as the holder of public 

power and as an owner have to be consequently differentiated in the private sector.” (See id. 

¶ 18 (internal quotation marks omitted).) 

Unlike the NMWC in Taylor, which was “created by Act of Swedish Parliament as a 

state agency within the Swedish Ministry of Culture, which is itself a department of the 

Government of the Kingdom of Sweden,” Taylor, 2019 WL 3536599, at *3 (internal quotation 
17 

marks omitted), MNV is a joint-stock company. In other words, it is outside of the hierarchy of 

the Hungarian government and is instead considered a company, even though it is owned by the 

government. (See Somody Decl. ¶ 16 (noting that MNV is registered on Hungary’s “Company 

Register,” and that “company” is defined under Hungarian law as “a legal entity . . . engaging in 

business operations”).) Similarly, in Garb, the Second Circuit observed that “all governmental 

units beneath the central government—and the Ministry of the Treasury is indisputably one such 

unit—constitute ‘political subdivisions,’ a category that is not congruent with ‘agencies and 

instrumentalities.’” 440 F.3d at 596. Indeed, the Second Circuit then went on to compare 

foreign sovereign immunity to Eleventh Amendment immunity, saying “it is black letter 

Eleventh Amendment law that the political agencies and departments of states are entitled to the 

same sovereign immunity as the state.” Id. at 597 n.23 (citing Compagnie Noga D’Importation 

et D’Exportation S.A. v. Russian Fed’n, 361 F.3d 676, 688 (2d Cir. 2004)). Like Taylor, the 

result in Garb was driven by the entity’s placement in the structure of Poland’s government. But 

MNV is different. MNV is not a “governmental unit[] beneath the central government” like the 

Polish Ministry of the Treasury, id. at 596, Iran’s Ministry of Foreign Affairs, see Roeder, 333 

F.3d at 234, or the United States Department of State. See Transaero, 30 F.3d at 152. Rather, 

MNV is a joint-stock company. 

To compensate for MNV’s placement outside the governmental hierarchy, defendants ask 

the Court to blur the distinction between purpose and function. For example, they compare 

MNV’s functions to that of Poland’s Ministry of Treasury, which also engages in asset 

management on behalf of a sovereign state and represents the state against financial claims. See 

Garb, 440 F.3d at 595. However, while holding and administering assets for another “is an act 

that sovereigns may accomplish, . . . it is not an act that only a sovereign power can do.” Smith 
18 

v. Overseas Korean Cultural Heritage Found., 279 F. Supp. 3d 293, 297 (D.D.C. 2018) 

(emphasis added). And, “[a]lthough [MNV’s] interests and objectives may align with, or be 

directed by, a foreign state, [the Court] must look to the ‘nature’ of the act, rather than its 

‘purpose.’” Id. (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). For 

example, in Smith, Judge McFadden concluded that “building and operating a museum . . . is the 

type of action by which a private party can engage in commerce,” so the defendant was an 

agency or instrumentality rather than a foreign state. Id.; cf. Malewicz v. City of Amsterdam, 362 

F. Supp. 2d 298, 314 (D.D.C. 2005) (concluding that defendant engaged in commercial activities 

when lending art pieces because private parties may also loan artwork internationally, and “it is 

the type of activity—not its purpose—that must guide the analysis” (emphasis in original)). 

In their recently-filed supplemental pleading, defendants cited a case from South 

Carolina, in which a district court concluded that the core functions of the Ministry of Education, 

Culture, and Science of the Netherlands, as well as the Cultural Heritage Agency of the 

Netherlands, were governmental rather than commercial and thus they were both immune under 

the FSIA. See Berg v. Kingdom of the Netherlands, Slip. Op. at 15, Docket No. 18-cv-3123 

(BHH) (D.S.C. Mar. 6, 2020); (see also ECF No. 177-1). The district court in that case 

concluded that “[w]hile the Ministry may engage in some commercial transactions, there is no 

evidence that the commercial transactions occur for the purpose of individual profit, but rather 

for a civic and political purpose.” Id. This analysis blends purpose and function. Cf. Weltover, 

504 U.S. at 614 (“[T]he question is not whether the foreign government is acting with a profit 

motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is 

whether the particular actions that the foreign state performs (whatever the motive behind them) 

are the type of actions by which a private party engages in trade and traffic or commerce.” 
19 

(internal quotation marks omitted)). 

Furthermore, MNV’s situation is factually distinguishable from that of the entities in 

Berg. For example, the Berg court observed that “the Minister reports to the Prime Minister, not 

to a board of directors,” and “there is no evidence that the commercial transactions [it engages 

in] occur for the purpose of individual profit.” See Berg, Slip Op. at 15. MNV, on the other 

hand, has both a Board of Directors and a Board of Supervisors which oversee the organization’s 

operations; while these Boards are accountable to the Hungarian government, which owns 

MNV’s single share, they nonetheless are required to run the organization with certain levels of 

knowledge and expertise. (See, e.g., Declaration of Zoltan Novak Ex. C, Act CVI of 2007 on 

State Assets at Section 20(3) (“Only Hungarian citizens with a degree from an institute of higher 

education who have exceptional theoretical or practical professional knowledge related to 

budgetary, financial and asset-management matters may be appointed chairman or members of 

the Board of Directors.”), ECF No. 148-29 (“Novak Decl.”).) And while MNV is required to 

manage the state’s assets in an efficient and value-conserving manner, it also must “ensur[e] 

the . . . value-enhancing use of state assets.” (See id. at Section 2(1) (emphasis added); see also 

id. at Section 22(7) (“MNV Zrt. shall . . . allocate the revenues from the utilisation and sale of the 

state assets to preserving and increasing the value of the . . . assets entrusted to it . . . .” 

(emphasis added)).) 

The Hungarian Act CVI of 2007 on State Assets provides that “tasks conferred upon 

MNV . . . shall be recognized as government functions.” (See id. at Section 17(2).) However, 

while managing the sovereign’s property is undoubtedly “essential to the daily functioning and 

long-term survival of that government,” Garb, 440 F.3d at 595 n.19, such an argument focuses 

on the purpose of the act, rather than its nature. See Smith, 279 F. Supp. 3d at 297. At their core, 
20 

MNV’s functions are those that a private entity could engage in as well. Moreover, MNV’s 

placement outside of the Hungarian government, as a joint-stock company, further emphasizes 

its commercial, rather than governmental, nature. The Court thus concludes MNV is an “agency 

or instrumentality” of Hungary, not a political subdivision, and it loses its sovereign immunity 

pursuant to the second clause of the FSIA’s expropriation exception. See de Csepel, 859 F.3d at 

1107 (“[A]n agency or instrumentality loses its immunity if the claim against it satisfies the 

exception by way of the second clause [of the commercial-activity nexus requirement].”). 

C. The Addition of Hungary as a Defendant 

Finally, defendants argue that, even if the Court can exercise jurisdiction over MNV, 

MNV’s actions cannot be attributed to Hungary to abrogate Hungary’s immunity. (See Defs.’ 

Reply at 9 (“[E]ven if MNV was relegated to agency or instrumentality status, the theory fails 

because Hungary is not using MNV to shield itself from liability.” (internal quotation marks 

omitted)), ECF No. 154.) The Court agrees. 

“[A]bsent an agency relationship, the court lacks subject matter jurisdiction over the 

foreign state for the acts of its instrumentality.” Foremost-McKesson, Inc. v. Islamic Republic of 

Iran, 905 F.2d 438, 447 (D.C. Cir. 1990). However, “the activities of an agent may be attributed 

to the principal for jurisdictional purposes.” Gilson v. Republic of Ireland, 682 F.2d 1022, 1026 

n.16 (D.C. Cir. 1982) (internal quotation marks omitted), abrogated on other grounds by In re 

Papandreou, 139 F.3d 247, 254 n.4 (D.C. Cir. 1998); see also TMR Energy Ltd. v. State 

Property Fund of Ukraine, 411 F.3d 296, 325 (D.C. Cir. 2005) (“[T]he presumption of 

independent status detailed in Bancec also applies to the question of subject matter jurisdiction 

under the FSIA; that is, a foreign state is amenable to suit based upon an exception in the FSIA 

and the acts of its instrumentality only if the sovereign exerts sufficient control over the 

instrumentality . . . to create a relationship of principal to agent.” (internal quotation marks and 
21 

brackets omitted)). 

The Supreme Court allowed what amounts to a “piercing of the corporate veil” between 

an instrumentality and a foreign sovereign in First Nat’l City Bank v. Banco Para El Comercio 

Exterior de Cuba, 103 S. Ct. 2591 (1983) (“Bancec”). Although “government instrumentalities 

established as juridical entities distinct and independent from their sovereign should normally be 

treated as such,” id. at 626-27, this principle is not blindly adhered to when to do so would cause 

injustice. Id. at 632. According to “internationally recognized equitable principles,” foreign 

sovereigns cannot “avoid the requirements of international law simply by creating juridical 

entities whenever the need arises.” Id. at 633. To determine when separateness should not be 

respected, courts apply the so-called “Bancec factors”: 

(1) the level of economic control by the government; 

(2) whether the entity’s profits go to the government; 

(3) the degree to which government officials manage the entity or otherwise 

have a hand in its daily affairs; 

(4) whether the government is the real beneficiary of the entity’s conduct; and 

(5) whether adherence to separate identities would entitle the foreign state to 

benefits in United States courts while avoiding its obligations. 

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 823 (2018) (internal quotation marks omitted). 

Later courts have interpreted Bancec to allow them to disregard separate juridical status when 

“the foreign entity is exclusively controlled by the foreign state or where recognizing the 

separateness of that entity and the foreign state would work fraud or injustice.” Estate of Heiser 

v. Islamic Republic of Iran, 885 F. Supp. 2d 429, 435 (D.D.C. 2012) (internal quotation marks 

omitted) (emphasis added); see also Transamerica Leasing, Inc. v. La Republica de Venezuela, 

200 F.3d 843, 848 (D.C. Cir. 2000). 

The Court concludes that MNV is properly characterized as a “typical government 

instrumentality” rather than one so exclusively controlled by Hungary that it should be deemed 

the same as the state. See Bancec, 462 U.S. at 624. While Hungary undoubtedly has the power 
22 

to exert substantial control over MNV—which has one share, owned by the government and 

exercised by the Minister—majority stock ownership or control of the Board of Directors is not, 

without more, sufficient to satisfy the control prong. See Transamerica Leasing, Inc., 200 F.3d 

at 849. Furthermore, in other important ways MNV fits comfortably in Bancec’s “typical 

government instrumentality” definition: it is created by statute that prescribes powers and duties; 

it is managed by a board selected by the government “in a manner consistent with the enabling 

law”5; and it has its own budget, although the money comes from Hungary. Bancec, 462 U.S. at 

624; see also DRC, Inc. v. Republic of Honduras, 71 F. Supp. 3d 201, 216-17 (D.D.C. 2014). 

As to Bancec’s “fraud or injustice” factor, there is no evidence that Hungary is abusing 

the presumption of separateness with its relationship with MNV, a concern that motivated the 

piercing of the veil that the Supreme Court allowed in Bancec. There, for example, treating the 

instrumentality (a bank) as separate from its sovereign principal (Cuba) “would permit the real 

beneficiary of such an action, the Government of the Republic of Cuba, to obtain relief in our 

courts that it could not obtain in its own right without waiving its sovereign immunity and 

answering for the seizure of [the U.S. bank’s] assets.” Bancec, 462 U.S. at 632. Here, plaintiffs 

do not suggest that Hungary is using MNV to shield it from liability—Hungary has not 

transferred ownership of state assets to MNV to thwart litigation, and MNV is not the entity that 

performed the acts of expropriation about which plaintiffs are suing. See Empresa Cubana 

 

5

 As described in the section on whether MNV is commercial or governmental, supra, although 

Hungary’s Minister of Culture has the power to appoint and recall members of MNV’s Board of 

Directors, he is constrained in who he can pick: 

Only Hungarian citizens with a degree from an institute of higher education who 

have exceptional theoretical or practical professional knowledge related to 

budgetary, financial and asset-management matters may be appointed chairman or 

members of the Board of Directors. 

(Novak Decl. Ex. C, Act CVI of 2007 on State Assets at Section 20(3).
23 

Exportadora de Alimentos y Productos Varios v. U.S. Dep’t of Treasury, 606 F. Supp. 2d 59, 78 

(D.D.C. 2009) (concluding that presumption of separateness should be disregarded when the 

sovereign is “attempting to use the federal courts as a sword while invoking the Constitution as a 

shield”). 

Moreover, the amended complaint does not seek to hold Hungary liable for the purported 

unlawful acts of MNV. Rather, it seeks to hold Hungary liable for the purported unlawful acts of 

Hungary. If plaintiffs were suing about actions that MNV had taken that harmed them, it might 

be proper for this Court to consider whether “adherence to [Hungary and MNV’s] separate 

identifies would entitle [Hungary] to benefits in United States courts while avoiding its 

obligations.” Rubin, 138 S. Ct. at 823 (internal quotation marks omitted). Here, however, while 

MNV manages the artwork at issue for Hungary, it had nothing to do with (and indeed it did not 

exist) when Hungary undertook the challenged actions. Had plaintiffs alleged MNV undertook 

actions in the United States that might satisfy the first commercial nexus clause, as well as facts 

sufficient under Bancec to impute MNV’s actions in the United States to Hungary, a different 

result might be required. See Kuo v. Gov’t of Taiwan, 2019 WL 120725, at *3 & n.2 (S.D.N.Y. 

Jan. 7, 2019). 

Allowing plaintiffs to go forward under this theory would also circumvent the Court of 

Appeals’ decision that foreign states and their instrumentalities need to satisfy different clauses 

of the FSIA’s expropriation requirement before their sovereign immunity is waived. See de 

Csepel, 859 F.3d at 1107. The Court of Appeals found that Hungary was immune because the 

property it took is not located in the United States. See id. If this Court were now to conclude 

that because Hungary controls MNV, which engages in commercial activity in the United States, 

Hungary is not immune, this would destroy the distinction recognized by the Court of Appeals 
24 

between the expropriation exception’s commercial nexus requirement for states, as opposed to 

their instrumentalities. Given the allegations in plaintiffs’ complaint, the Court concludes that 

actions undertaken by MNV cannot be used to bring Hungary back into this litigation. 

II. RULE 19 

Defendants argue that, in light of Hungary’s dismissal by the Court of Appeals, the entire 

action should be dismissed. (See Mot. to Dismiss at 22 (“Even if this Court found it could take 

jurisdiction over MNV, the action cannot go forward because Hungary, the sole owner of the 

artworks, is immune from this Court’s jurisdiction.”).) As explained below, the Court concludes 

that Hungary is not an indispensable party. 

A. Rule and Legal Standard 

“Rule 19 of the Federal Rules of Civil Procedure establishes a two-step procedure for 

determining whether an action must be dismissed because of the absence of a party needed for a 

just adjudication.” Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489, 1495–96 (D.C. Cir. 

1997). First, a court must determine whether the absent party is “necessary.” A party is 

necessary if: 

(A) in that person’s absence, the court cannot accord complete relief among 

existing parties; or 

(B) that person claims an interest relating to the subject of the action and is so 

situated that disposing of the action in the person’s absence may: 

(i) as a practical matter impair or impede the person’s ability to protect the 

interest; or 

(ii) leave an existing party subject to a substantial risk of incurring double, 

multiple, or otherwise inconsistent obligations because of the interest. 

Fed. R. Civ. P. 19(a)(1). “If the Court determines that [the absent party] is not required under 

Rule 19(a), it need not proceed to the second step of the test . . . .” Cronin v. Adam A. Weschler 

& Son, Inc., 904 F. Supp. 2d 37, 41 (D.D.C. 2012). However, if the absent party is necessary 
25 

and cannot be joined without depriving the court of subject-matter jurisdiction, the action must 

be dismissed unless “in equity and good conscience, the action should proceed among the 

existing parties.” Fed. R. Civ. P. 19(b). Factors to consider in deciding whether the action 

should proceed are: 

(1) the extent to which a judgment rendered in the person’s absence might 

prejudice that person or the existing parties; 

(2) the extent to which any prejudice could be lessened or avoided by: 

(A) protective provisions in the judgment; 

(B) shaping the relief; or 

(C) other measures; 

(3) whether a judgment rendered in the person’s absence would be adequate; and 

(4) whether the plaintiff would have an adequate remedy if the action were 

dismissed for nonjoinder. 

Id. 19(b)(1)-(4). 

“Courts are generally reluctant to grant Rule 12(b)(7) motions, and dismissal is warranted 

only when the defect is serious and cannot be cured.” Cronin, 904 F. Supp. 2d at 41 (internal 

quotation marks omitted). Moreover, defendants, as the moving parties, “bear[] the burden to 

demonstrate that [the] absent party is required under Rule 19.” Id. 

B. Necessary Party 

 Defendants argue that Hungary is necessary to both plaintiffs’ tort and contract claims. 

(See Mot. to Dismiss at 24 (“Hungary is a party to the purported bailments—Plaintiffs allege 

their predecessors entered into bailments with Hungary’s legal representatives.”); see also id.

(“Only Hungary is alleged to have taken the artworks ‘in violation of international law’ and 

converted them.”).) While “Rule 19 does not require the joinder of joint tortfeasors,” Cronin, 

904 F. Supp. 2d at 41, “in actions involving contractual rights, courts have frequently found that 
26 

the parties to a contract are required parties within the meaning of Rule 19.” Eco Tour 

Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 390 (D.D.C. 2017) (citing Ward v. Deavers, 203 

F.2d 72, 75 (D.C. Cir. 1953)). 

 At the outset, with one exception discussed below, even if one were to assume arguendo

that in the absence of Hungary, the remaining parties cannot turn over the artworks, as they claim 

only to display and manage them on behalf of Hungary, a court is not required to be able to 

provide all forms of relief in order to provide sufficiently complete relief to the parties for 

purposes of Rule 19. See Ward, 203 F.2d at 75–76 (concluding that, without the absent party, 

contract rescission could not be ordered, but the case could still go forward against the remaining 

defendants for damages). And, plaintiffs have sufficiently alleged that the remaining defendants 

may be liable, at the very least, for monetary relief. 

As a matter of law, defendants are incorrect that “neither MNV nor the museum 

defendants are joint tortfeasors” because only Hungary purports to own the artworks. (See Mot. 

to Dismiss at 24.) Under District of Columbia law, “[a] defendant will be liable for conversion if 

the plaintiff shows that the defendant participated in (1) an unlawful exercise, (2) of ownership, 

dominion, or control, (3) over the personal property of another, (4) in denial or repudiation of 

that person’s rights thereto.” Gov’t of Rwanda v. Rwanda Working Grp., 227 F. Supp. 2d 45, 62 

(D.D.C. 2002) (emphasis added); see also Mac’Avoy v. The Smithsonian Inst., 757 F. Supp. 60, 

67 (D.D.C. 1991) (“The acquisition of the property is immaterial to a claim in replevin or 

conversion. The essence of the actions is the wrongful withholding of the property in question.” 

(emphasis added)). Therefore, the remaining defendants may be determined to be converters 

even though they only purport to display or manage the property on behalf of Hungary. See Dan 

B. Dobbs et al., The Law of Torts § 61 (“[T]he defendant who exercises significant control over 
27 

the property is a converter even though he himself gains nothing from the property or his control 

over it.”); see also Dodd v. Pearson, 279 F. Supp. 101, 104 (D.D.C. 1968) (“It is well settled, . . . 

that a person who receives and uses the property of another that has been wrongfully obtained, 

knowing that it was so obtained, is likewise guilty of conversion and liable for damages.”), rev’d 

in part on other grounds, 410 F.2d 701 (D.C. Cir. 1969). 

Second, plaintiffs allege that many of the bailments were actually entered into with 

representatives of the museums, so that Hungary may not be the only party, or even a party at all, 

to some of the bailments.6 Plaintiffs point to the 2004 Sigray decision of a Hungarian court, in 

which the Hungarian National Museum, as the sole defendant, was ordered to return a painting to 

the plaintiffs. (See Supp. Declaration of Dr. Mark Peto Ex. A, ECF No. 175-1 (“Sigray 

Decision”).) According to the Sigray court, if there was a bailment between the plaintiff and the 

museum, the Hungarian State is not required to take any action prior to the museum releasing it, 

as “when the [artwork] is returned, there is . . . no alienation of property, only the return of 

possession.” (Id.) Looking to the Sigray decision, the Court can see no reason why any similar 

claims by plaintiffs cannot go forward without Hungary’s presence, at least to the extent 

plaintiffs prove that bailments exist between their predecessors and any of the remaining 

 

6

 For example, in May 1950, a lawyer representing Elizabeth, Dr. Emil Oppler, “offer[ed]” 

several paintings belonging to the family “for deposit with the Museum of Fine Arts.” (See 

Walker Decl. Ex. B-3, ECF No. 148-10.) Defendants claim in supplemental briefing that 

Elizabeth was in fact required to hand over such artwork under the Legislative Decree No. 13 of 

1949, and that the National Center for Museums and Monuments, to which the letter was 

addressed, was a political subdivision of Hungary. (See Defs.’ Supp. Reply Br. at 1-2, ECF No. 

176 (“Defs.’ 2020 Reply”).) However, the Decree only permitted the government to require 

artwork be handed over (see Supp. Declaration of Zoltan Novak Ex. 1 at Art. 10, ECF No. 176-

3), and defendants provide no proof that such a hand-over was ordered. At this stage the Court 

considers plaintiffs’ evidence sufficient to state a claim for bailment, and it need not resolve 

whether there was a breach of a bailment for which the remaining defendants may be liable. 
28 

defendants.7 

The conclusion that the remaining defendants may be liable for damages or even in some 

cases for the return of the artwork is not altered by the Hungarian case cited by defendants in 

their motion to dismiss. (See Mot. to Dismiss at 26 (citing Novak Decl. Ex. F, ECF No. 148-

30).) In that case, a claimant sued a private company and MNV for rights it claimed it had to use 

a government-owned property, alleging that the contracts for use between the private-company 

defendant and MNV were invalid under Hungarian law and that the private-company defendant 

had no right to terminate the claimant’s use of the property. (See Novak Decl. Ex. F at 3.) The 

Metropolitan Court of Appeals concluded that “the court of first instance is required to call upon 

the claimant to involve the Hungarian State in the lawsuit[,] . . . failing which the proceedings 

should be stayed. (See id. at 9.) But from the outset, neither the claimant nor the defendants in 

that case disputed that the property at issue was owned by Hungary, and the only claims in the 

case were contract-based. (See id. at 1.) This differs from the instant case in two important 

ways: here, many of the claims are conversion-based, and joint tortfeasors generally need not be 

 

7

 In Sigray, the court found a law requiring the permission of the minister to alienate state 

property inapplicable, as “[t]he court determined that a bailment agreement had been concluded 

between the plaintiffs’ predecessor and the defendant,” meaning that “in this instance no 

alienation of property takes place.” (See Sigray Decision (emphasis in original).) Defendants 

argue that the Sigray case is inapposite because new laws on state property have been passed 

since the decision was published (see Defs.’ 2020 Reply at 8–9); however, defendants do not 

explain how, if at all, these laws abrogate the principle at the heart of the decision, which is that 

“[u]nder [a] bailment agreement, no transfer of ownership or alienation of property takes place; 

the chattel remains in the ownership of the bailor, and only possession of the chattel is 

transferred to the bailee.” (See Sigray Decision (emphasis added).) 

Moreover, the Sigray decision does not become irrelevant merely because in this case, unlike in 

Sigray, the defendant museums dispute the existence of a bailment. (See id.) The Sigray court 

“determined that a bailment agreement had been concluded between the plaintiffs’ predecessor 

and the defendant.” (Id.) If plaintiffs prove the existence of any bailments here, defendants will 

only have possession and not ownership and thus they can return the art. 
29 

joined. Moreover, plaintiffs may be able to prove that bailment agreements existed with the 

defendants, therefore undercutting Hungary’s claim of ownership of the property. 

Nevertheless, even if the remaining defendants can provide some relief—monetary or 

otherwise—Hungary may still be a required party under the definition of one “claim[ing] an 

interest relating to the subject of the action” whose interest may be impeded. Fed. R. Civ. P. 

19(a)(1)(B)(i); see also Wach v. Byrne, Goldenberg & Hamilton, PLLC, 910 F. Supp. 2d 162, 

169 n.5 (D.D.C. 2012) (“Notwithstanding a determination of complete relief, a party may still be 

necessary under subsection (a)(1)(B).” (internal alterations omitted) (quoting Angst v. Royal 

Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996))). Judge Kollar-Kotelly described 

“legally protected interest” as “exclud[ing] only those claimed interests that are ‘patently 

frivolous.’” See Wach, 910 F. Supp. 2d at 170 (quoting Davis v. United States, 192 F.3d 951, 

959 (10th Cir. 1999)). And as in Wach, plaintiffs and Hungary “lay opposing, irreconcilable 

claims to the same [pieces of artwork].” Id. at 169. 

In Wach, Judge Kollar-Kotelly went on to conclude under Rule 19(b) that because, inter 

alia, the absent party’s interests were not protected by the remaining defendant, the absent party 

was indispensable. Id. at 172. This contrasts with an earlier decision of this Court where, at the 

Rule 19(a) stage, it decided that the absent parties’ interests were not even “impede[d]” because 

they were adequately represented by the remaining defendant. See FDIC v. Bank of New York, 

479 F. Supp. 2d 1, 10 (D.D.C. 2007). Whether an interest is “practically impeded” and whether 

interests are adequately protected undoubtedly overlap, and thus can be considered under either 

Rule 19(a) or 19(b). See Capital Med. Ctr., LLC v. Amerigroup Maryland, Inc., 677 F. Supp. 2d 

188, 194 n.9 (D.D.C. 2010) (“Evaluation of the first Rule 19(b) factor overlaps considerably with 

the Rule 19(a) analysis.” (internal quotation marks omitted)). 
30 

For this reason, courts often simply assume that an absent party meets the standard under 

Rule 19(a)(1)(B) and instead focus on the 19(b) factors. See, e.g., Provident Tradesmens Bank & 

Trust Co. v. Patterson, 390 U.S. 102, 108 (1968) (disposing of first step inquiry with the 

observation that there was “at least the possibility that a judgment might impede [the absent 

party’s] ability to protect his interest”); see also Federal Practice & Procedure (Wright & Miller) 

§ 1604 (“Rule 19(a) reflects an affirmative policy of bringing all interested persons before the 

court, whereas the object of Rule 19(b) is to determine whether it is possible to go forward with 

an action despite the nonjoinder of someone whose presence is desirable but not feasible.”). 

While Hungary’s presence may be desirable in this case, the Rule 19(b) factors are more 

illuminating, as they guide the Court’s conclusion that continuation of the litigation, even 

without Hungary, is appropriate. 

C. Indispensable Party 

 Because Hungary cannot be joined due to its sovereign immunity, the Court moves to the 

Rule’s second step, whether “in equity and good conscience, the action should proceed.” Fed. R. 

Civ. P. 19(b). The Court concludes that it should. 

 In arguing that Hungary is indispensable, defendants ask the Court to place dispositive 

weight on Hungary’s sovereign immunity. (See Mot. to Dismiss at 28 (“Because Hungary, a 

required party, is entitled to sovereign immunity, the action can be dismissed ‘without 

consideration of any additional factors.’ (quoting Kickapoo Tribe of Indians of Kickapoo 

Reservation in Kansas v. Babbitt, 43 F.3d 1491, 1498 (D.C. Cir. 1995))).) It is true that the Rule 

19(b) inquiry in a case involving an absent sovereign may be somewhat “circumscribed,” for 

“immunity may be viewed as one of those interests ‘compelling by themselves.’” Kickapoo, 43 

F.3d at 1497, 1496 (quoting Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 
31 

777 n.13 (D.C. Cir. 1986)). And, the Supreme Court has held that “where sovereign immunity is 

asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be 

ordered where there is a potential for injury to the interests of the absent sovereign.” Republic of 

Philippines v. Pimentel, 553 U.S. 851, 867 (2008) (emphasis added). 

 However, in contrast to the sovereign in Pimentel, Hungary’s interests are adequately 

protected in this case by the remaining defendants. “[P]rejudice to absent parties approaches the 

vanishing point when the remaining parties are represented by the same counsel, and when the 

absent and remaining parties’ interests are aligned in all respects.” See Marvel Characters, Inc. 

v. Kirby, 726 F.3d 119, 134 (2d Cir. 2013). This is precisely the case here, particularly with the 

addition of MNV as a defendant—as plaintiffs observe, “MNV is Hungary’s agent with respect 

to the artworks at issue, and has represented Hungary in this action from day one.” (See Pls.’ 

Opp. at 35.) Defendants have cited no differences in interests between themselves and Hungary; 

indeed, all defendants are represented by the same legal team as Hungary was prior to its 

dismissal, a key point in the prejudice analysis. See Am. Trucking Ass’n, Inc. v. N.Y. State 

Thruway Auth., 795 F.3d 351, 360 (2d Cir. 2015) (noting that defendant and absent party would 

be represented by same attorney, suggesting their interests must be “aligned in all respects” 

(internal quotation marks omitted)). In many cases in which the absent sovereign was deemed 

indispensable, by contrast, the sovereign’s interests were often only partially aligned with other 

defendants. See, e.g., Two Shields v. Wilkinson, 790 F.3d 791, 799 (8th Cir. 2015) (noting that 

remaining defendants “have strong incentives to characterize any breach as resulting solely from 

the government’s independent action and judgment” in order to reduce their own liability); see 

also Kickapoo, 43 F.3d at 1498; Detroit Int’l Bridge Co. v. Gov’t of Canada, 192 F. Supp. 3d 54, 

69 (D.D.C. 2016). In this case the remaining defendants and Hungary are not only aligned, they 
32 

“share a ‘precisely’ identical interest in the subject matter of the litigation,” i.e., that Hungary 

and its agencies and instrumentalities continue their possession of the artwork and pay no 

damages. See Wach, 910 F. Supp. 2d at 171. 

 The remaining factors also weigh in plaintiffs’ favor. As discussed above, the Court 

concludes that limiting plaintiffs’ remedies to damages to the extent defendants claim Hungarian 

law forbids them from alienating artwork without permission of the Hungarian government 

further reduces any prejudice or risk of inconsistent obligations. Plaintiffs do not claim that an 

action limited in such a way—to damages, rather than injunctive or declaratory relief—would be 

inadequate. (See Pls.’ Opp. at 35–36 (“Even if Hungary were prejudiced [by an order to return 

the paintings in its absence], this Court could limit Plaintiffs’ remedy to damages against the 

remaining Defendants, which would result in no prejudice to Hungary.”).) And, this Court has 

previously observed that requiring plaintiffs to litigate in Hungary, defendants’ proposed 

alternative forum, would be futile. See de Csepel, 169 F. Supp. 3d at 169 n.15 (“[T]he Court 

finds that plaintiffs have adequately shown that further efforts to seek a remedy in Hungary 

would have likely proved futile.”).8

 In briefing submitted after oral argument, defendants raised a new argument why 

Hungary is a necessary party—“[b]ecause a money judgment against the Museum Defendants 

alone could not be enforced without violating Hungary’s recognized sovereign immunity (as any 

enforcement would necessarily implicate Hungarian state funds) Hungary is an indispensable 

 

8

 Of course, in a case involving sovereign immunity this last factor is of limited probative value. 

See Wichita & Affiliated Tribes, 788 F.2d at 777 (“Although we are sensitive to the problem of 

dismissing an action where there is no alternative forum, we think the result is less troublesome 

in this case than in some others. . . . [T]he dismissal turns on the fact that society has consciously 

opted to shield Indian tribes from suit without congressional or tribal consent.”). 
33 

party and the action cannot go forward.” (See Defs.’ Supp. Reply Br. at 10, ECF No. 176 

(“Defs.’ 2020 Reply”).) This is a novel argument, particularly within the context of FSIA 

actions. However, even assuming that any and all damages ordered against the remaining 

defendants would be paid out of Hungary’s treasury,9 the Court concludes that this action may 

nonetheless continue. 

 Prior cases in which dismissal was ordered because the federal government was immune 

yet faced potential monetary liability are distinguishable. Defendants cite Mine Safety 

Appliances Co. v. Forrestal, 326 U.S. 371 (1945), in which the Supreme Court concluded that 

the suit against the Under Secretary of the Navy was “essentially one designed to reach money 

which the government owns,” meaning that the federal government was a necessary party. Id. at 

375. However, the plaintiff in Mine Safety was effectively suing the Secretary in his official 

capacity, and as a result, was suing the sovereign. Having determined that MNV is not so 

integral to Hungary’s political structure that it should be considered Hungary’s “political 

subdivision,” a conclusion already reached for the other remaining defendants, see de Csepel, 

169 F. Supp. 3d at 167 (“[D]efendants have already admitted that the museums and university 

holding all of the art are agencies or instrumentalities.”), the Court will not reverse course and 

collapse the distinction here. 

Other cases where the federal government has been deemed indispensable based on the 

potential for outlay of its funds, such as Weeks v. Housing Auth. of Opp, Alabama, 292 F.R.D. 

689 (M.D. Ala. 2013), lack the identity of interest present in this case. In Weeks, the district 

 

9

 Although defendants claim that in the absence of Hungary, they cannot pay damages (see 

Declaration of David Kratchowill ¶ 7, ECF No. 154-1; see also Defs.’ 2020 Reply at 9-10), this 

proposition is contested by plaintiffs. (See Supp. Declaration of Dr. Mark Peto at 4-5, ECF No. 

175-1.) 
34 

court concluded that the Department of Housing and Urban Development (“HUD”) was an 

indispensable party because all the defendant’s “funds and operating expenditures are subject to 

[its] oversight and approval,” and it informed the defendant “that it would not approve any 

payments” to the plaintiff, who had been terminated from defendant’s employment. Id. at 691. 

However, the local Housing Authority in Weeks did not have the same identity of interest with 

HUD as defendants have with Hungary, even if both receive all their funds from the absent 

sovereign entity. Defendants here are represented by the same attorneys as Hungary and are 

agencies and instrumentalities of the state itself. In contrast, the Housing Authority in Weeks had 

a contributions contract with HUD by which HUD paid its expenses, but the two clearly had 

different priorities. See id. at 691 (noting that the defendant “tried to negotiate further with 

HUD” prior to litigation to avoid terminating plaintiff in the first place). This case, by contrast, 

is more like American Trucking, in which the Second Circuit concluded that New York was not 

an essential party even though “as a practical matter, a defeat for the [remaining defendant, the 

New York State Thruway Authority,] may have downstream effects that cost the State money.” 

American Trucking, 795 F.3d at 359. Although the effect on Hungary of a judgment adverse to 

defendants would be more direct than any potential effects of an adverse judgment on New York, 

which had no legal obligation to pay the defendant’s liabilities, see id. at 358, this is a difference 

in degree, rather than in kind. As the Court there aptly observed, “having reserved and retained 

the benefits of corporate separation for all other purposes, [remaining defendants and absent 

parties] may not pierce their own arrangements to accommodate litigation strategy.” Id. at 359. 

Moreover, implicit in the structure of the FSIA is the proposition that a foreign state’s 

agency or instrumentality may be sued even when the foreign state remains immune. For 

example, as has been clarified by the Court of Appeals, the FSIA’s expropriation exception lays 
35 

out two different commercial-nexus standards—one that abrogates immunity for foreign states, 

and one for agencies and instrumentalities. See de Csepel, 859 F.3d at 1107 (“hold[ing] that a 

foreign state retains its immunity unless the first clause of the commercial-activity nexus 

requirement is met”). Agencies and instrumentalities are often fully- or partially-funded by their 

foreign state. See Bancec, 462 U.S. at 624 (describing how a “typical government 

instrumentality” may require “appropriations to provide capital or to cover losses”); (see also 

Pls.’ Supp. Reply Br. at 3, ECF No. 175 (“Pls.’ 2020 Reply”)). And even partial funding would 

“implicate” the sovereign’s funds in some way. But under the test proposed by defendants, this 

fact would necessarily render the foreign state an indispensable party. (See Defs.’ 2020 Reply at 

10.) If an agency or instrumentality with some budgetary ties to the sovereign could never be 

sued unless the sovereign itself were also a party, it would be pointless for the FSIA to treat 

immunity for agencies and instrumentalities differently than for foreign states. Defendants’ per 

se rule is thus in tension with the FSIA’s mandate, as articulated by the Court of Appeals, that 

agencies and instrumentalities can be sued even when foreign states—which may fund their 

budgets, in whole or in part—cannot. This conclusion is further bolstered by the FSIA provision 

§ 1606: 

As to any claim for relief with respect to which a foreign state is not entitled to 

immunity under section 1605 or 1607 of this chapter, the foreign state shall be 

liable in the same manner and to the same extent as a private individual under like 

circumstances. 

(See Pls.’ 2020 Reply at 3 (quoting 28 U.S.C. § 1606).) Again, this demonstrates that agencies 

and instrumentalities and foreign sovereigns,10 which may at times lose immunity when the other 

does not, cannot use their budgetary connections to circumvent the different ways the FSIA may 

 

10 As discussed above, 28 U.S.C. § 1603(a) defines a foreign state to include an agency or 

instrumentality. 
36 

treat them.11 

For all the above-described reasons, the Court concludes that Hungary is not an 

indispensable party under Rule 19(b). The case may proceed in its absence. 

III. JURISDICTION 

 A. Legal Standard 

 “The jurisdiction of the district court . . . is governed by the FSIA itself: A foreign state is 

immune from suit in both federal and state courts, 28 U.S.C. § 1604, unless the case comes 

within an express exception in the FSIA, id. § 1605.” Price v. Socialist People’s Libyan Arab 

Jamahiriya, 389 F.3d 192, 196 (D.C. Cir. 2004); see also Phoenix Consulting, Inc. v. Republic of 

Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (“If no exception applies, a foreign sovereign’s 

immunity under the FSIA is complete: The district court lacks subject matter jurisdiction over 

the plaintiff’s case . . . .” (internal citations omitted)). 

 While generally the Court is to assume all facts as true at the motion to dismiss stage, 

“[w]hen a foreign sovereign disputes the fact(s) upon which the district court’s subject matter 

jurisdiction depend(s), the court ‘must go beyond the pleadings and resolve any disputed issues 

 

11 The Court is also not persuaded by the district court decision in South Carolina, discussed 

above, see section II.B, supra, in which the district court observed that it “believes the 

Netherlands and the Ministry are necessary parties to this action involving contested 

ownership,” because without their presence in the litigation it “cannot render an effective ruling 

regarding the ownership of the Artworks.” See Berg, Slip Op. at 41. Before making this 

remark, the court had already concluded that the action must be dismissed due to a lack of 

personal jurisdiction over remaining defendants, see id. at 31, and because of improper venue. 

See id. at 38-39. As a result, the court’s standing analysis—which included its offhand 

observation regarding the Netherlands’ “necessary” status—was mere dicta. Moreover, the 

district court reached this conclusion while deciding whether plaintiffs had standing to press 

their claims. See id. at 41 (concluding that without Netherlands or the Ministry, plaintiffs had 

not established redressability). Rule 19 was not mentioned, let alone analyzed. 
37 

of fact the resolution of which is necessary to a ruling upon the motion to dismiss.’” Price, 389 

F.3d at 197 (quoting Phoenix Consulting, 216 F.3d at 40). For example, under the expropriation 

exception, “federal courts can maintain jurisdiction to hear the merits of a case only if they find 

that the property in which the party claims to hold rights was indeed ‘property taken in violation 

of international law.’” Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling 

Co., 137 S. Ct. 1312, 1316 (2017). 

Plaintiffs must produce evidence to show the absence of immunity based on an FSIA 

exception. See Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38, 42 (D.D.C. 2000). However, 

“[i]n accordance with the restrictive view of sovereign immunity reflected in the FSIA, the 

burden of proof in establishing the inapplicability of these exceptions is upon the party claiming 

immunity.” Transamerican S.S. Corp. v. Somali Democratic Republic, 767 F.2d 998, 1002 

(D.C. Cir. 1985). As a result, “defendant[s] bear[] the burden of proving that the plaintiff’s 

allegations do not bring its case within a statutory exception to immunity.” Phoenix Consulting, 

216 F.3d at 40; see also Belize Soc. Dev. Ltd. v. Gov’t of Belize, 794 F.3d 99, 102 (D.C. Cir. 

2015) (same). 

 B. The Court of Appeals’ Remand 

In its most recent opinion, the Court of Appeals approved this Court’s use of the FSIA’s 

expropriation exception as to the remaining defendants (excluding Hungary), which satisfied the 

second clause of the exception, relating to an agency or instrumentality of a foreign state. See 28 

U.S.C. § 1605(a)(3). It then directed this Court to address several specific issues on remand. 

First, the Court of Appeals determined that “most of [plaintiffs’] claims do in fact involve 

a tight legal, factual, and temporal connection to Hungary’s expropriation of the collection.” de 

Csepel, 859 F.3d at 1102. Indeed, the Circuit noted defendants’ concession that “some twenty-
38 

five pieces of art were never returned to the family” by Hungary. See id. (emphasis added). It 

thus “conclude[d] that ‘rights in property taken in violation of international law’ are ‘in issue’ as 

to those twenty-five or so artworks taken by Hungary during the Holocaust and never returned.” 

Id. at 1103. Therefore, the Court has jurisdiction under the FSIA’s expropriation exception over 

these undisputed wartime takings. The twenty-three pieces that defendants have conceded were 

never returned and over which the Court has jurisdiction pursuant to the Court of Appeals’ 

decision are listed in Appendix A, attached hereto.12

However, the Court of Appeals also noted that “some fifteen pieces of the Herzog 

collection were physically returned to family members, and others were legally released to the 

family on paper (though the family disputes whether they were ever actually returned to their 

physical custody).” Id. (internal quotation marks and brackets omitted). As to these pieces, the 

Circuit instructed the Court to “determine[] whether the temporary return of the art severed the 

connection between Hungary’s current possession and its Holocaust-era seizure.” Id. For, “if 

Hungary returned the artworks free and clear to the family and then lawfully repossessed them, a 

claim for their return would not satisfy the expropriation exception.” Id. at 1104. However, if 

the subsequent re-taking was “sufficiently intertwined with the Holocaust-era taking, or if the 

pieces were retaken in a new violation of international law,” the expropriation exception would 

be satisfied despite the temporary return. See id. Defendants argue that nineteen pieces, listed in 

Appendix B, were returned to the Herzog siblings after World War II, and that sixteen of those 

were subsequently repossessed. The Court analyzes below whether post-World War II actions 

caused these nineteen artworks to enter defendants’ possession lawfully. 

 

12 Upon further review of the record, it is apparent that jurisdiction has been established as to 

twenty-three (not twenty-five) pieces of artwork. (Compare Scholl-Tatevosyan Decl. Ex. 1, ECF 

No. 148-2 (listing all forty-two artworks in the amended complaint) with Ex. 2 (listing nineteen 

pieces allegedly returned to Herzog siblings).) 
39 

Second, the Court of Appeals instructed the Court to determine if the 1973 Agreement 

between Hungary and the United States that settled certain claims of American citizens barred 

claims to pieces attributable to Elizabeth because of the treaty exception to the FSIA.13 See 

Agreement Between the Government of the United States of America and the Government of the 

Hungarian People’s Republic Regarding the Settlement of Claims, March 6, 1973, 24 U.S.T. 522 

(the “1973 Agreement”). The Court will discuss the claims settlement process in greater detail 

below, see Section III.D.1, infra, but for now, the claims process can be briefly summarized as 

follows: American citizens whose property was taken by Hungary up to the day the 1973 

Agreement was signed on March 6, 1973, were able to make claims under two claims settlement 

processes, one in the 1950’s and one in the 1970’s. While the first process allowed claimants to 

retain rights to the unpaid balance of their claims, the 1973 Agreement purported to settle all 

covered claims by American citizens and discharge them completely. According to the Court of 

Appeals, this Court must determine whether “Hungary did take some of the art from [Elizabeth] 

after she became a [U.S.] citizen,” as “the 1973 agreement could not have extinguished claims in 

any work of art taken from [her] before she became a citizen in 1952.” de Csepel, 859 F.3d at 

1108 (emphasis added). However, claims relating to pieces taken between June 23, 1952, when 

she became a U.S. citizen, and 1973 would be barred by the 1973 Agreement in accordance with 

the FSIA’s treaty exception.14 Again, this review is limited to those nineteen pieces defendants 

 

13 The FSIA provides that the abrogation of sovereign immunity under its exceptions is 

“[s]ubject to existing international agreements to which the United States is a party at the time of 

enactment of this Act.” See 28 U.S.C. § 1604. Therefore, “if there is a conflict between the 

FSIA and . . . [a pre-existing international] agreement regarding the availability of a judicial 

remedy against a contracting state, the agreement prevails.” de Csepel, 714 F.3d at 601 (internal 

quotation marks omitted). 

14 This Court had previously concluded that two of the forty-four pieces of artwork in the 

complaint— Lucas Cranach’s Joachim with the Angel and John Opie’s Portrait of an Old 

Lady—were not take in violation of international law. See de Csepel, 169 F. Supp. 3d at 167. 
40 

argue were returned. See id. (ordering the Court to review if pieces were taken from Elizabeth 

after she became a citizen “as part of its review of the artwork returned and retaken by 

Hungary”). 

 The Court addresses each of these jurisdictional issues—allegedly returned and 

repossessed artworks, see Section III.C, infra, and pieces possibly barred by the 1973 Agreement 

between Hungary and the United States, see Section III.D, infra. As to the nineteen pieces, 

Appendix B lists the artworks and designates the ones over which the Court has concluded that it 

retains jurisdiction. 

 C. Returned and Repossessed Artworks 

 Defendants’ first jurisdictional argument is that nineteen pieces listed in the amended 

complaint were not taken in violation of international law for purpose of the FSIA’s 

expropriation exception. (See Mot. to Dismiss at 34.) According to defendants, “Hungary 

returned the artworks free and clear to the family and then lawfully repossessed them, [so] a 

claim for their return would not satisfy the expropriation exception.” de Csepel, 859 F.3d at 

1104. 

The nineteen pieces allegedly returned and repossessed can be split into four categories: 

(1) ten pieces that were part of the forfeiture order in the smuggling case against Illona Kiss, 

István’s former wife (the “Kiss Forfeiture”); (2) three that were not explicitly part of the Kiss 

Forfeiture, but which defendants argue were taken “in connection with” it; (3) two that 

defendants argue were returned to plaintiffs and never re-possessed by Hungary; and (4) four for 

 

As found by this Court, the Opie was acquired from a third-party donor in 1963, and the Cranach 

was seized by Hungary’s communist government in 1952 from the home of a former attorney for 

the Herzog family in connection with the prosecution of an individual (Ferenc Kelemen) who 

allegedly violated Hungarian registration laws and hid the painting to keep it safe for Elizabeth. 

See id. at 165-66; see also 859 F.3d at 1108. 
41 

which plaintiffs contest the return itself. Beyond the four pieces in category (4) whose return 

plaintiffs dispute, plaintiffs argue that, even if a piece had been returned, all subsequent retakings were “in violation of international law.” 

While plaintiffs are correct that “[a] taking violates international law if: (1) it was not for 

a public purpose; (2) it was discriminatory; or (3) no just compensation was provided for the 

property taken” (see Pls.’ Opp. at 40 (quoting de Csepel, 808 F. Supp. 2d at 128)), they fail to 

address an additional requirement—for a taking to constitute an expropriation in violation of 

international law, it must also be of the property of a national of another state because otherwise 

it would be blocked by what is referred to as the “domestic takings rule.” See Restatement 

(Third) of the Foreign Relations Law of the United States § 712 (“A state is responsible under 

international law for injury resulting from . . . a taking by the state of the property of a national 

of another state . . . .” (emphasis added)). “The domestic takings rule means that, as a general 

matter, a plaintiff bringing an expropriation claim involving an intrastate taking cannot establish 

jurisdiction under the FSIA’s expropriation exception because the taking does not violate 

international law.” See Simon, 812 F.3d at 144-45. In cases arising out of takings from Jewish 

people during World War II, the domestic takings rule has not been applied because the genocide 

perpetrated by Germany and other Nazi-affiliated governments constitutes the predicate violation 

of international law. See id. at 144 (“The domestic takings rule has no application in the unique 

circumstances of this case, in which, unlike in most cases involving expropriations in violation of 

international law, genocide constitutes the pertinent international-law violation.”). For that 

reason, the Court of Appeals instructed this Court to determine on remand whether the new, 

post-World War II takings were “sufficiently intertwined with the Holocaust-era taking.” See de 

Csepel, 859 F.3d at 1104. Whether the later re-possessions are “sufficiently intertwined” with 
42 

the Holocaust will therefore guide the Court’s analysis, as any “basic international-law 

expropriation claim[s],” Simon, 812 F.3d at 145, severed from the Holocaust, will largely be 

barred by the domestic takings rule and will not constitute violations of international law.15 

1. Kiss Forfeiture 

Ten of the returned and repossessed pieces were taken as part of a smuggling prosecution 

against Ilona Kiss, István’s former wife and one-time guardian. István “gifted” much of his art 

to her in 1944 in an attempt to avoid its confiscation, as she was not Jewish and thus not subject 

to the registration laws. (See Pls.’ Opp at 6; see also Walker Decl. Ex. R-2, ECF No. 148-26.) A 

police report written during the investigation described how in 1948 Ms. Kiss, along with several 

others, smuggled three artworks out of Hungary for sale in Switzerland. (See Walker Decl. Ex. 

R-2.) As a result of this investigation, the Hungarian government impounded a number of 

artworks belonging to the Herzog family—some belonging to István, but also several belonging 

to Elizabeth and András. Following Kiss’ conviction, fourteen pieces belonging to the Herzog 

family were taken into state ownership by the Museum of Fine Arts on October 6, 1950, and 

were inventoried on October 18, 1950. (See Declaration of Alycia Regan Benenati (“Benenati 

Decl.”) Ex. 12, ECF No. 153-15; see also Walker Decl. Ex. K-7, ECF No. 148-19.) Ten 

artworks on this list of fourteen are part of the nineteen pieces the Court of Appeals directed this 

Court to assess for jurisdictional purposes.16

 

15 Thus, in 1952, when Elizabeth became an American citizen, and, for pieces attributed to 

András, in 1959, when his first daughter became an Italian citizen (see Pls.’ Opp. at 5), the 

domestic takings rule would cease to apply, and a taking meeting plaintiffs’ criteria (for example, 

one made without compensation) would constitute a taking in violation of international law 

unless barred by the FSIA’s treaty exception. See note 13, supra. 

16 The ten pieces included in the Kiss Forfeiture (that also belong to the group of nineteen 

returned pieces) are: 

(1) Barthel Bruyn, Portrait of Petrus von Clapis, half-length, in a blue coat with 
43 

Plaintiffs argue that “[t]he underlying criminal proceedings against Ilona Kiss were 

predicated on an invalid Holocaust-era agreement that Ilona Kiss and István Herzog entered into 

to attempt to shield István Herzog’s property from Nazi confiscation,” and thus, any takings 

associated with it must be viewed as intertwined with the earlier, Holocaust-era takings. (See 

Pls.’ Opp. at 43.) However, given that the Kiss prosecution was for smuggling and was 

undertaken by Hungary’s communist government after the fall in 1945 of the German-controlled, 

Fascist regime and the repeal in March 1945 of the World War II-era discriminatory laws, the 

Court cannot agree. The ten pieces were returned prior to their forfeiture, so their taking in 1950 

due to a criminal proceeding “severed the connection between Hungary’s current possession and 

its Holocaust-era seizure.” See de Csepel, 859 F.3d at 1103. 

However, the October 1950 forfeiture order does not close the chapter on the Kiss 

Forfeiture. On March 20, 1951, Dr. Oltványi, then-director of the Museum of Fine Arts, wrote a 

letter memorializing his conversation with a representative of the Herzog family, Henrik Lorant, 

in which he stated that Mr. Lorant had informed him that several pieces had been “included in 

the criminal attachment [in the Kiss Forfeiture] by mistake.”17 (See Tatevosyan Decl. Ex. 63, 

 

fur collar, 17(i) in the amended complaint; 

(2) Gustave Courbet, The Spring (Artist and Model), 17(v); 

(3) Pseudo Pier Francesco Fiorentino, The Madonna and Child with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(4) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 

17(x); 

(5) Augustin Theodule Ribot, Still Life with a Chicken, a Bottle of Wine, 

Asparagus, Artichoke, Tomatoes and other Vegetables, on a Table, 17(xv); 

(6) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii); 

(7) Alvise Vivarini or Giovanni Battista da Udine, Madonna and Child with 

Saints John the Baptist and a male Saint, 17(xviii); 

(8) Francisco de Zurbarán, Saint Andrew, 17(xix); 

(9) A Terracotta Group of the Virgin and Child, Italian, 15th Century, 17(xxi); and 

(10) József Borsos, Portrait of the Architect Mátyás Zitterbarth, 18(i). 

17 Another letter written by a Herzog representative, Dr. Emil Oppler, on May 3, 1950, refers to 
44 

ECF No. 106-6.) Furthermore, he “request[ed] commencement of the procedure for terminating 

the criminal attachment.” (Id.) The five pieces listed in this “mistake letter” comprise the pieces 

attributed to Elizabeth and András that had previously been included in the Kiss Forfeiture.18 

Neither plaintiffs nor defendants have provided any further proof as to whether the criminal 

attachment was in fact terminated; however, at this stage, and given the burden of proof, the 

Court cannot conclude that these pieces were taken as a result of the Kiss Forfeiture and, 

therefore, cannot conclude that they passed to the state in 1950. 

However, all five of these artworks are still in defendants’ possession, so they must have 

been taken again at some later time. And as noted, the pieces are attributable to András or 

Elizabeth, who either themselves (Elizabeth) or their heirs (András) eventually became nonHungarian citizens. See note 15, supra. Therefore, these later takings of the five paintings will 

need to be analyzed to see if they constitute separate violations of international law. 

Defendants have presented some evidence regarding the one piece that is attributable to 

András—József Borsos’s Portrait of the Architect Mátyás Zitterbarth. (See Walker Decl. Ex. D, 

ECF No. 148-12.) Although there is no information regarding the painting’s whereabouts after 

the Kiss Forfeiture, the next mention of this painting was in a letter dated December 11, 1973, in 

 

these pieces, among others, as having been taken by the police “for the clarification of their legal 

status.” (See Walker Decl. Ex. B-3.) 

18 The five pieces included in the Kiss Forfeiture and also in this “mistake letter” are: 

(1) Barthel Bruyn the Elder, Portrait of Petrus von Clapis, half-length, in a blue 

coat with fur collar, 17(i) in the amended complaint; 

(2) Pseudo Pier Francesco Fiorentino, The Madonna and Child, with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(3) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 

17(x); 

(4) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii); and 

(5) József Borsos, Portrait of the Architect Mátyás Zitterbarth, 18(i). 
45 

which the Hungarian Ministry of Culture asserted that it, along with the other pieces listed in the 

Kiss Forfeiture, “insofar [as] they have not already passed into the ownership of the State,” have 

become state property. (See Scholl-Tatevosyan Decl. Ex. 37, ECF No. 148-5.) By 1973, 

András’s daughters were Italian citizens, and they received no compensation for the painting’s 

taking; as a result, the taking of this artwork is an expropriation in violation of international law 

over which the Court has jurisdiction. As to the four pieces attributable to Elizabeth that were 

listed in the March 20, 1951 “mistake letter,” it appears likely that any taking would have 

occurred after she became a U.S. citizen in June 1952 and would thereby implicate the 1973 

Agreement, which is discussed below. See Section III.D, infra. 

2. Kiss Forfeiture “In Connection With” Pieces 

Defendants next argue that three pieces “were handed over to Hungary in 1950, all in 

connection with the Kiss smuggling action” (Mot. to Dismiss at 37)—(1) Alonso Cano, Portrait 

of Don Balthasar Carlos (1629-1646), Standing full-length, in a Landscape, 17(ii) in the 

amended complaint; (2) Giovanni Pedrini, called Giampietro, Christ Carrying the Cross, 

17(xiii); and (3) Mihály Munkácsy, In the Studio, 18(iv). While all three pieces were indeed 

offered to the defendants in May 1950, pursuant to a letter written by Elizabeth’s representative, 

Dr. Emil Oppler (see Walker Decl. Ex. B-3, ECF No. 148-10), there is no evidence to suggest 

that these three pieces were taken “in connection with” the Kiss Forfeiture. The letter recognized 

that several pieces were already in the custody of the Financial Police, but these three were not 

included with those pieces that were in the possession of the police. (See id.) As to these three 

pieces, as well as several others not at issue here, Dr. Oppler offered the paintings “for 

deposit . . . while maintaining the ownership title to the deposit.” (Id.) Dr. Oppler’s offer was 

made with reference to Legislative Decree No. 13/1949, which allowed the government to order 

certain collections of national interest be transferred to governmental custody for safekeeping. 
46 

(See Defs.’ 2020 Reply at 2 (“This law, which explicitly applies to ‘private collections of 

national interest,’ states that the ‘Minister of Religion and Public Education may order the 

transfer of the private collection into a public collection’ to keep a collection secure or intact.” 

(quoting Legislative Decree No. 13 of 1949 on Museums and Monuments at Art. 10)).) 

However, given that the letter purports only to bail the collection temporarily, and there is no 

other evidence that Dr. Oppler was ordered to surrender the works, the Court concludes that the 

May 1950 letter does not itself indicate that Hungary “took” the pieces in connection with the 

Kiss Forfeiture. 

Defendants cite a document from June 1958 listing certain pieces from the deposit stock 

of the Old Masters Gallery “to be inventoried,” i.e., added to the Museum of Fine Art’s core 

inventory. (See Walker Decl. Ex. B-5.) Included on this list is Christ Carrying the Cross by an 

Italian painter, with the same dimensions as were listed for the Giovanni Pedrini in the amended 

complaint. (Compare id. and Am. Compl. ¶ 17(xiii).) Given that it was returned before 1950, 

kept by a private individual, and then offered back to the government in 1950, any “taking” that 

occurred by 1958 of the Christ Carrying the Cross was “severed . . . [from] its Holocaust-era 

seizure.” See de Csepel, 859 F.3d at 1103. Defendants have thus met their burden that the 

expropriation exception does not apply. 

The remaining two pieces—Munkácsy’s In the Studio and Cano’s Portrait of Don 

Balthasar Carlos—present a different analysis. While both came into defendants’ possession in 

1950 pursuant to the Oppler letter, there is no proof that they were “taken” by the Hungarian 

government into its possession until much later. Given that both pieces belong to Elizabeth, their 

taking after 1952 could constitute a separate violation of international law unless the 1973 

Agreement applies. As a result, the Court will analyze these pieces under the 1973 Agreement 
47 

before deciding whether has jurisdiction over them. See Section III.D, infra. 

3. Pieces Defendants Claim Not to Possess 

Defendants claim not to be in possession of several artworks listed in the amended 

complaint, two of which must be analyzed here—(1) Four ancient Egyptian sculptures, statues, 

and steles, 17(xxxi); and (2) Lajos Deák Ébner, Fair in Szolnok City, 18(v).19 Plaintiffs 

conceded at oral argument that they have no evidence to rebut defendants’ evidence that Ébner’s 

Fair in Szolnok City was returned to the Herzog siblings after the war and was never repossessed 

by defendants. (See Jan. 13, 2020 Tr. at 115:13-17, ECF No. 174.) Claims relating to this piece 

are therefore dismissed for lack of jurisdiction. However, as to the Four Ancient Egyptian

sculptures, statues, and steles, not only does defendants’ evidence of return relates to, at most, 

two of the four pieces (see Walker Decl. Ex. T, ECF No. 148-28), but plaintiffs also contest 

defendants’ assumption that the returned pieces are the same as those confiscated during World 

War II. (See Benenati Decl. Ex. 23 at 3, ECF No. 153-26.) The Court agrees that a document 

memorializing the receipt of “1 Egyptian stone tablet” and “1 Egyptian inscribed tablet” (see 

Walker Decl. Ex. T-1), without more, is not sufficient to demonstrate a return of the pieces 

described in 17(xxxi). As a result, defendants have not “severed the connection between 

Hungary’s current possession and its Holocaust-era seizure.” See de Csepel, 859 F.3d at 1103. 

The Court thus concludes that defendants have not met their burden to demonstrate that the 

 

19 The Court need not address the other three pieces defendants claim not to be in possession of: 

(1) Terracotta Group of the Virgin and Child, Italian, 15th century, 17(xxi) in the amended 

complaint; (2) Four ancient silver coins, 17(xxxiii); and (3) Seventy-Eight Pieces: Ancient 

Cameos, Intaglios, Other Carved Stones and Semi-Precious Stones, 17(xxxiv), which defendants 

noted for the first time at oral argument might also not be in their possession. (See Jan. 13, 2020 

Tr. at 119:10-14, ECF No. 174.) The Terracotta Group was part of the Kiss Forfeiture and, as 

noted above, its taking was not intertwined with the Holocaust-era takings. See Section III.C.1, 

supra. The other two pieces are undisputed wartime takings (see Appendix A), so the Court 

need not address them for purposes of jurisdiction. 
48 

expropriation exception does not apply to the artwork listed in 17(xxxi) of the amended 

complaint. 

4. Disputed-Return Artworks 

Plaintiffs raise factual disputes as to four of defendants’ alleged returns: (1) Virgin of the 

Annunciation, Austrian, circa 1400, 17(xxv) in the amended complaint; (2) Károly Ferenczy, 

Landscape with a Fenced Enclosure (Houses in Fernezely with Sheepfold) 1912, 20(i); (3) 

Giovanni Santi Christ with a Fly, also known as Christ the Dolorous, Christ with a Fly, 17(xvi); 

and (4) A Painted Stucco Bust, after Jacopo della Quercia, 17(xx). As to the first and fourth, the 

Court concludes that defendants have failed to demonstrate that the expropriation exception does 

not apply, as they have not shown that the pieces were in fact returned “free and clear.” See de 

Csepel, 859 F.3d at 1104. As to the second and third, the Court concludes that plaintiffs cannot 

rely on the expropriation exception. 

Plaintiffs argue that the Virgin of the Annunciation was not returned in 1947, and that a 

statue closely resembling it in description is listed as part of the Museum of Fine Art’s deposit 

inventory. (See Pls.’ Opp. at 40.) The amended complaint describes this piece as an Austrian 

statue circa 1400, made of limestone, and approximately 90 centimeters tall. (See Am. Compl. 

¶ 17(xxv).) Defendants cite a letter dated January 25, 1947, from Elizabeth’s representative, 

saying he took possession of a “Female Saint” stone sculpture, as evidence that the piece in the 

complaint was returned after the war. (See Walker Decl. Ex. C-1, ECF No. 148-11.) A list of 

the pieces on deposit with the Museum of Fine Arts in 1958 includes a “Saint Woman,” 

purportedly from a 15th-century German master, made of chalk (a variety of limestone) and 90 

centimeters tall. (See id. at Ex. C-4; see also Benenati Decl. Ex. 23.) It is listed as acquired from 

the “Government Commissioner’s Office.” (See Walker Decl. Ex. C-4.) Plaintiffs seem to agree 

that the piece listed on the deposit register is the one described in the complaint, but dispute that 
49 

the “Female Saint” returned in 1947 is the same piece. (See Benenati Decl. Ex. 23.) The Court 

concludes that such a sparse description as “Female Saint” is not sufficient to show that the 

statue was in fact returned, particularly when there is no further evidence of its possession by the 

Herzog siblings or of its bailment back to defendants. And, the piece’s current placement in the 

“deposit” catalog casts doubts on defendants’ representations of ownership.20 The Court will 

therefore retain jurisdiction over claims related to this artwork. 

 Plaintiffs claim that “[t]here is also a dispute of fact as to whether . . . [Ferenczy’s 

Landscape] was returned in 1947 and sold.” (See Pls.’ Opp. at 41.) However, it is clear from a 

letter from January 25, 1947, that a representative of the Herzog family took possession of the 

painting (see Walker Decl. Ex. E-1, ECF No. 148-13), and a subsequent letter in June 1948 

indicates that the same representative “sold . . . [the Ferenczy Landscape] through professor 

Elemer Varju.” (See id. at E-2.) Contrary to plaintiffs’ contention (see Pls.’ Opp. at 41), the 

exhibit relied on by defendants specifies which paintings were sold. (See Walker Decl. Ex. E-2.) 

Although in light of this sale it is odd that a 1958 Museum of Fine Arts document lists the piece 

as deposited by the Herzogs (see Benenati Decl. Ex. 25, ECF No. 153-28), the piece is no longer 

on deposit and the Court sees no reason to disregard the record evidence attesting to the release 

of the painting to a Herzog representative and its subsequent sale. Any later repossession by the 

 

20 As the name suggests, pieces that are on “deposit” with the museums, as opposed to in their 

“core” inventory, do not belong to the museums but are merely on loan, for example from a 

private collection. (See Benenati Decl. Ex. 13, Deposition of Samuel Balász, at 33:17-19 (“Q: 

So if an artwork is a deposit, it is not owned by the state? A: Yes.”), ECF No. 153-16.) This 

different status between core and deposit pieces is reflected in how the two are treated under 

Hungarian law. For example, core pieces “are subject to restricted marketability” and cannot be 

alienated without government permission (see Novak Decl. Ex. E, Act CXL of 1997 on 

Museological Institutions, Public Library Services and Public Culture at Section 38(1), ECF No. 

148-30), because they are government property. This restriction does not apply to pieces that are 

on deposit. 
50 

Hungarian government of the painting was thus “severed . . . [from] its Holocaust-era seizure.” 

See de Csepel, 859 F.3d at 1103. 

 Plaintiffs take issue with defendants’ contention that Giovanni Santi’s Christ with a Fly

“was actually returned in 1947.” (Pls.’ Opp. at 41.) A memorandum dated June 25, 1947, 

described the Santi being released to Mrs. István Herzog as István’s guardian. (See Walker Decl. 

Ex. R-1.) And, a November 1948 report of the Hungarian State Police’s Economy Policy 

Department says that in the summer of 1947, Mrs. István Herzog transferred her guardianship to 

Dr. Odon Berzsenyi, “at the same time handing over” several paintings belonging to István, 

including the Santi. (See id. at Ex. R-2.) The painting entered state possession by sometime in 

1948, when it was listed among pieces that a Hungarian ministry had placed “at the disposal of 

the Museum of Fine Arts, as a temporary deposit.” (See Benenati Decl. Ex. 26, ECF No. 153-

29.) Then, as of January 1949, the piece had been seized to secure tax debts. (See Walker Decl. 

Ex. R-3.) Again, however, the evidence suggests that the painting was returned and, indeed, 

transferred freely between István’s two guardians. Deeming this return “free and clear” is not 

inconsistent with the painting’s repossession by the Hungarian government, on deposit or 

otherwise, approximately one year later. And, there is no basis to infer that the repossession by 

the communist Hungarian government in 1948 or 1949 was “intertwined” with the earlier, 

Holocaust-era taking. 

 Lastly, plaintiffs argue that A Painted Stucco Bust, after Jacopo della Quercia, was not 

“actually ‘legally returned and physically released’ in 1948 as Defendants claim.” (Pls.’ Opp. at 

41.) The Court agrees that it is unclear whether the bust was returned “free and clear” to the 

Herzog family. Although defendants contend that the bust was returned to the Herzog family on 

April 15, 1948 (see Walker Decl. Ex. Q-2, ECF No. 148-25), an “acknowledgment of receipt” 
51 

from Dr. Jeszenszky, a Hungarian government official, states that the Hungarian government 

received the piece “for safeguarding” the exact same day. (See id. at Ex. Q-3.) Since there does 

not appear to be any time between the piece’s purported return to the Herzogs and its immediate 

repossession by the government, there is a lack of evidence that the return was “free and clear” 

such that it “severed the connection between Hungary’s current possession and its Holocaust-era 

seizure.” See de Csepel, 859 F.3d at 1103-04. The Court concludes defendants have not met 

their burden as to A Painted Stucco Bust, and thus, the Court will retain jurisdiction over this 

piece. 

 Because the defendants have demonstrated that two pieces were returned “free and 

clear,” their repossessions were sufficiently separate from the Holocaust-era takings and thus not 

“in violation of international law.” Claims related to these pieces will be dismissed. Claims as 

to the Virgin of the Annunciation and A Painted Stucco Bust, however, are subject to the Court’s 

jurisdiction pursuant to the FSIA’s expropriation exception. 

6. Conclusion as to Returned Pieces 

The Court of Appeals instructed this Court to “review . . . the artwork returned and 

retaken by Hungary.” See de Csepel, 859 F.3d at 1108. Defendants alleged that nineteen pieces 

were returned to the Herzog siblings or their representatives, and that sixteen of those were 

subsequently retaken. After reviewing the evidence, the Court has concluded that the 

expropriation exception applies to at least four of the group of nineteen. For the following three 

pieces, the takings were “sufficiently intertwined with the Holocaust-era taking,” See de Csepel, 

859 F.3d at 1104: 

(1) A Painted Stucco Bust, after Jacopo della Quercia, 17(xx) in the amended 

complaint; 

(2) The Virgin of the Annunciation, Austrian, circa 1400, 17(xxv); and 
52 

(3) Four Ancient Egyptian Sculptures, Statues, and Steles, 17(xxxi); 

And as to one piece—József Borsos, Portrait of the Architect Mátyás Zitterbarth, 18(i)—

the Court concludes it was “retaken in a new violation of international law” and thus the 

expropriation exception applies. See id. 

As to nine other pieces, defendants have demonstrated that they were returned and retaken (if re-taken at all) in a way that “severed the connection between Hungary’s current 

possession and its Holocaust-era seizure.” Id. at 1103. The Court therefore lacks jurisdiction 

over these pieces: 

(1) Gustave Courbet, The Spring (Artist and Model), 17(v); 

(2) Giovanni Pedrini, called Giampietro, Christ Carrying the Cross, 17(xiii); 

(3) Augustin Theodule Ribot, Still Life with a Chicken, a Bottle of Wine, 

Asparagus, Artichoke, Tomatoes and other Vegetables, on a Table, 17(xv); 

(4) Giovanni Santi, The Dead Christ with Two Angels, also known as Christ the 

Dolorous, Christ with a Fly, 17(xvi); 

(5) Alvise Vivarini or Giovanni Battista da Udine, Madonna and Child with 

Saints John the Baptist and a male Saint, 17(xviii); 

(6) Francisco de Zurbarán, Saint Andrew, 17(xix); 

(7) A Terracotta Group of the Virgin and Child, Italian, 15th century, 17(xxi); 

(8) Lajos Deák Ébner, Fair in Szolnok City, 18(v); and 

(9) Károly Ferenczy, Landscape with a Fenced Enclosure (Houses in Fernezely 

with Sheepfold), 20(i). 

Lastly, as to the remaining six pieces—all of which belong to Elizabeth—the Court finds 

that while defendants have adequately demonstrated their return, their later repossession must 

still be analyzed to determine whether claims related to them are subsumed by the 1973 

Agreement and are thereby covered by the FSIA’s treaty exception. See note 13, supra. Those 

pieces are: 
53 

(1) Barthel Bruyn the Elder, Portrait of Petrus von Clapis, half-length, in a blue 

coat with fur collar, 17(i); 

(2) Alonso Cano, Portrait of Don Balthasar Carlos (1629-1646), Standing fulllength, in a Landscape, 17(ii); 

(3) Pseudo Pier Francesco Fiorentino, The Madonna and Child, with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(4) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 

17(x); 

(5) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii); and 

(6) Mihály Munkácsy, In the Studio, 18(iv). 

 D. 1973 AGREEMENT 

 Defendants argue that “[t]he documentary evidence makes clear that [Elizabeth] sought 

and received compensation for property that she affirmatively claimed was taken from her after

she became a U.S. citizen,” and as a result, the Court lacks jurisdiction over her claims that were 

settled pursuant to the 1973 Agreement between the United States and Hungary. (See Mot. to 

Dismiss at 31 (emphasis in original).) Plaintiffs respond that the 1973 Agreement does not 

apply, for defendants fail to point to any evidence that defendants took any of the artworks at 

issue after Elizabeth became a citizen in June 1952 and before March 6, 1973, when the 1973 

Agreement was signed, and second, the United States cannot espouse claims that arose when an 

individual was not yet an American citizen. (See Pls.’ Opp. at 37.) 

Throughout these proceedings, this Court has consistently held that the 1973 Agreement 

does not bar claims except for those takings from Elizabeth between 1952 and 1973. The Court 

of Appeals agreed and directed this Court on remand to determine whether any of the returned 

artworks were taken from Elizabeth after June 1952. See de Csepel, 859 F.3d at 1108 

(“Although, as the district court explained, the 1973 agreement could not have extinguished 

claims in any work of art taken from Erzsébet before she became a citizen in 1952, the remaining 
54 

defendants insist that Hungary did take some of the art from Erzsébet after she became a 

citizen.” (internal citation omitted)); see also id. (“[W]e think it best to leave it to the district 

court to address this issue in the first instance as part of its review of the artwork returned and 

retaken by Hungary.”). 

 As noted in Section III.C, supra, there are six pieces attributable to Elizabeth that may 

have been taken during the relevant time period covered by the 1973 Agreement. In accordance 

with the Court of Appeals’ mandate, the Court will analyze only those six pieces, which were 

returned by Hungary post-war. Elizabeth’s remaining pieces are undisputed wartime takings and 

thus could not have been settled by the 1973 Agreement, as will be further explained below.21 

See Section III.D.1, infra (explaining the claims process). 

 1. The Claims Process 

The International Claims Settlement Act of 1949 established a process by which 

American citizens could receive compensation from the United States government for losses 

caused by certain foreign governments during certain periods of time. See International Claims 

Settlement Act of 1949, 22 U.S.C. § 1621 et seq.; (see also Scholl-Tatevosyan Decl. Ex. 40 at 13 

 

21 For example, defendants contend that the 1973 Agreement subsumed Elizabeth’s claims to two 

pieces—József Borsos, Girls with Flowers (The Three Graces), 17(xxxii) in the amended 

complaint, and Károly Brocky, Bacchanale, 18(ii)—although they were never raised to either the 

United States or Hungary. (See Mot. to Dismiss at 33 (citing art. 6(1) of the 1973 Agreement 

(settling all claims of U.S. nationals, whether they were brought to Hungary’s attention or not)).) 

As the Court of Appeals limited this Court’s jurisdictional review to those pieces returned to the 

Herzog siblings after the war (see Appendix B), this argument must fail, for both pieces are 

undisputedly wartime takings (see Appendix A), and thus, they could not be settled by the 1973 

Agreement, which requires that claimants be U.S. nationals at the time they suffered their losses. 

See de Csepel, 808 F. Supp. 2d at 133 (“Both Hungary and the United States expressly 

recognized the inherent limitations on espousal authority during negotiations of the 1973 

Agreement.”); see also de Csepel, 859 F.3d at 1108 (citing this Court’s opinion for the 

proposition that “the 1973 agreement could not have extinguished claims in any work of art 

taken from Erzsébet before she became a [U.S.] citizen in 1952”). 
55 

(“These programs have involved claims of U.S. nationals for losses in specific foreign countries 

as a result of the nationalization or other taking of property during specific periods of time by the 

governments of those countries.”).) The Foreign Claims Settlement Commission (“FCSC”), 

which replaced the International Claims Commission by amendment of the Act in 1954, decides 

whether evidence submitted in support of claims for compensation under the Act establishes the 

requisite elements. (See Scholl-Tatevosyan Decl. Ex. 40 at 1; see also id. at 3 (describing those 

elements as “United States nationality, ownership, value and the date and circumstances of the 

asserted loss”).) The FCSC determination is “final and conclusive on all questions of law and 

fact and not subject to review by any other official of the United States or by any court by 

mandamus or otherwise.” 22 U.S.C. §1641m. 

 The First Hungarian Claims Program, which was completed on August 9, 1959, and 

funded by “the vesting and liquidation of enemy assets which had been blocked by the United 

States during World War II” (see Scholl-Tatevosyan Decl. Ex. 40 at 17), provided compensation 

for American citizens for losses suffered before August 9, 1955. See 22 U.S.C. § 1641b(2). 

The Second Hungarian Claims Program came into existence following the conclusion of 

an executive agreement between the United States and Hungary on March 6, 1973. See 

Agreement Between the Government of the United States of America and the Government of the 

Hungarian People’s Republic Regarding the Settlement of Claims, March 6, 1973, 24 U.S.T. 522 

(the “1973 Agreement”). The 1973 Agreement provided that, in exchange for the sum of 

$18,900,000, the government of the United States “shall discharge the Government of the 

Hungarian People’s Republic and Hungarian nationals from their obligations to the Government 

of the United States and its nationals in respect of all claims referred to in Article 2 of [the] 

Agreement.” See 1973 Agreement at Art. 6(1). Article 2 listed as discharged and settled any 
56 

claims that, inter alia, related to “property, rights and interests affected by Hungarian measures 

of nationalization, compulsory liquidation, expropriation, or other taking on or before the date of 

this Agreement.” See id. at Art 2(1). The Second Program was completed on May 16, 1977, and 

authorized the FCSC to determine claims for losses after August 9, 1955, up through the date the 

1973 Agreement was signed on March 6, 1973. (See Scholl-Tatevosyan Decl. Ex. 40 at 19.) 

The FCSC “was also authorized to adjudicate certain claims which should have been filed in the 

first Hungarian Claims Program, but were not, due to an administrative error.” (Id.) While 

funds from the Second Program could be used to pay pre-1955 claims, it could only do so once 

post-1955 claims and previously-unfiled claims were funded to the same level as claims had 

been under the First Program. See 22 U.S.C. § 1641i(a)(7). 

 Under the 1973 Agreement once Hungary paid the $18,900,000 as provided for in Article 

1, “the Government of the United States will consider as finally settled all claims for which 

compensation is provided under Article 1, whether or not they have been brought to the attention 

of the Government of the Hungarian People’s Republic.” See 1973 Agreement at Art. 6(1). 

Moreover, the Agreement provided that “[t]he distribution of [the $18.9 million] . . . falls within 

the exclusive competence of the Government of the United States in accordance with its 

legislation, without any responsibility arising therefrom for the Government of the Hungarian 

People’s Republic.” See id. at Art. 5. As a result, the 1973 Agreement settled all claims of U.S. 

citizens against Hungary in their entirety and required U.S. citizens to deal with the United States 

government (not Hungary) to the extent they required compensation. Both the United States and 

Hungary understood that to be deemed a “national of the United States,” an individual had to 

have been a U.S. citizen at the time the loss was suffered. (See Benenati Decl. Ex. 22, 

Deposition of Dr. István Kiss, at 32:14-17 (“The prime principle applied in this agreement was 
57 

that the person whose claim was submitted should be or should have been an American citizen at 

the time of suffering the damage . . . .”), ECF No. 110-7); see also de Csepel, 808 F. Supp. 2d at 

133 (“Both Hungary and the United States expressly recognized the inherent limitations on 

espousal authority during negotiations of the 1973 Agreement.”). 

 2. Elizabeth’s Claims 

 The evidence is clear as to the artworks that were included in Elizabeth’s 1959 claim to 

the FCSC, as well as the compensation she received. In 1959 she received $457,290.80 for real 

and personal property she asserted was taken from her by the Hungarian government after she 

became a U.S. citizen and before August 9, 1955. (See Scholl-Tatevosyan Decl. Ex. 34.) This 

total included $210,000 for art in which she claimed a full or a one-third interest along with her 

two siblings.22 (See Scholl-Tatevosyan Decl. Ex. 33.) She claimed that the art was taken on 

 

22 Of the twelve pieces which she claimed were taken by Hungary in 1954, eleven are included in 

the amended complaint: 

(1) Barthel Bruyn the Elder, Portrait of Petrus von Clapis, half-length, in a blue 

coat with fur collar, 17(i) in the amended complaint; 

(2) Alonso Cano, Portrait of Don Balthasar Carlos (1629-1646), Standing fulllength, in a Landscape, 17(ii); 

(3) Gustave Courbet, Le Chateau de Blonay (neige), (The Chateau of Blonay 

(snow)), 17(iv); 

(4) Pseudo Pier Francesco Fiorentino, The Madonna and Child, with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(5) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 

17(x); 

(6) Bernardino Licinio da Pordenone, Portrait of a Lady, half-length, in a Black 

Robe, Holding a Book, 17(xiv); 

(7) Augustin Theodule Ribot, Still Life with a Chicken, a Bottle of Wine, 

Asparagus, Artichoke, Tomatoes and other Vegetables, on a Table, 17(xv); 

(8) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii); 

(9) Alvise Vivarini or Giovanni Battista da Udine, Madonna and Child with 

Saints John the Baptist and a male Saint, 17(xviii); 

(10) Mihály Munkácsy, “La Visite” (The Afternoon Visit), 18(iii); and 

(11) Mihály Munkácsy, In the Studio, 18(iv). 
58 

May 12, 1954, the date of passage of Hungary’s 1954 Museum Decree (see id.), which allowed 

the Hungarian government to nationalize art with no apparent owner or when the owner had fled 

the country without permission. (See Declaration of Orsolya Banki Ex. C, Legislative Decree 

No. 13 of 1954 at Sec. 9(1), ECF No. 13-2.) It appears now that Elizabeth’s claim that her art 

was taken on May 12, 1954, pursuant to the Museum Decree, was made in error.23 (See Pls.’ 

2020 Reply at 7 (“Elizabeth’s claim was predicated on the erroneous belief that her art had been 

nationalized pursuant to the 1954 Museum Decree . . . .”); see also Defs.’ 2020 Reply at 6 

(“Early in the course of the 1973 Agreement negotiations, the Hungarian delegation rejected the 

claims advanced by the United States on behalf of Erzsébet on the grounds that, while the 

artworks had been placed in a public collection and would not be returned, they may not have 

been formally ‘nationalized.’”).) She was paid $210,000 based on the assessments of an art 

dealer and an employee of the Smithsonian Institute that the amount represented her “total 

interest” in the claimed works. (See Scholl-Tatevosyan Decl. Ex. 33.) Nevertheless, the FCSC’s 

decision provided that “[p]ayment of any part of this award shall not be construed to have 

divested the claimant herein, or the Government of the United States on her behalf, of any rights 

against the Government of Hungary for the unpaid balance of the claim, if any.” (See Scholl-

 

23 It is unclear when Elizabeth or her heirs understood that the pieces that she claimed 

compensation for in 1959 had not in fact been taken or placed in the state’s ownership under the 

1954 Museum Decree. From the record, it appears that as late as 2000, Hungary was still 

claiming that at least some of the artwork at issue in the Nierenberg litigation was acquired as 

either “abandoned goods” or “marked as having an unknown owner and thus were acquired 

through legal regulation.” (See Scholl-Tatevosyan Decl. Ex. 48 at 21, ECF No. 148-6.) In 

October 2000, the Metropolitan Court concluded that the state had not gained ownership of the 

art in this way (see id. at 35), and this conclusion carried through to the Metropolitan Court of 

Appeals’ final decision in 2008, which agreed with the lower court’s determination that the 1954 

Museum Decree did not apply to Elizabeth’s paintings, except for one. (See Scholl-Tatevosyan 

Decl. Ex. 26 at 3 (court concluded that the state could not establish ownership pursuant to the 

1954 Museum Decree “because the plaintiff’s legal predecessor emigrated with permission”), 

ECF No. 148-4; see also id. at 14 (concluding that as to the Opie, the conditions of the 1954 

Museum Decree were met).) 
59 

Tatevosyan Decl. Ex. 34.) 

After the conclusion of the 1973 Agreement, Elizabeth made another claim, which was 

adjudicated in 1977. This claim contained none of the art listed in the 1959 decision. (See 

Scholl-Tatevosyan Decl. Ex. 16 (1977 FCSC decision).) Rather, it covered only property taken 

after 1955. (See Scholl-Tatevosyan Decl. Ex. 17 (citing Section 303(5) of the International 

Claims Settlement Act of 1949, which provided for compensation for losses after August 9, 

1955).) The claimed property consisted of several pieces of real estate, as well as the two 

paintings, Lucas Cranach’s Joachim with the Angel and John Opie’s Portrait of an Old Lady, 

which have already been dismissed from this case. See de Csepel, 169 F. Supp. 3d at 167; see 

also note 14, supra. The decision provided for payment of $33,000 for the Cranach and the 

Opie and $31,000 for real property, plus interest. (See Scholl-Tatevosyan Decl. Exs. 16, 17.) 

While defendants claim that Elizabeth also received additional money for the pieces listed in her 

1959 claim under the 1973 Agreement (see Defs.’ 2020 Reply at 3), there is no evidence to 

support such a finding.24 

3. Pieces Settled Under 1973 Agreement 

The Court concludes that five of the nineteen returned pieces were taken by Hungary 

after Elizabeth became a U.S. citizen in June 1952 and before 1973, and thus claims related to 

them must be dismissed for lack of jurisdiction due to the FSIA’s treaty exception. See note 13, 

supra. These pieces are: 

 

24 Defendants point to Martha Nierenberg’s comment that although she found no evidence of 

further payment, “her mother, as all other claimants, must have received USD 1,000 and 37% of 

the amount determined by the Foreign Claims Settlement Commission.” (See Scholl-Tatevosyan 

Decl. Ex. 49 at 9, ECF No. 148-6.) However, as discussed below, see Section III.D.3, the 

pertinent question is not whether Elizabeth was paid more money for those pieces under the 1973 

Agreement—it is whether the pieces described in the FCSC decision were actually taken by the 

Hungarian government, and if so, when. 
60 

(1) Barthel Bruyn the Elder, Portrait of Petrus Von Clapis, half-length, in a blue 

coat with fur collar, 17(i) in the amended complaint; 

(2) Alonso Cano, Portrait of Don Balthasar Carlos (1629-1646), Standing fulllength, in a Landscape, 17(ii); 

(3) Pseudo Pier Francesco Fiorentino, The Madonna and Child, with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(4) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 

17(x); and 

(5) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii). 

On May 10, 1966, Hungary’s Financial Institutions Authority wrote a letter to the 

Museum of Fine Arts asking the museum to assess “whether [certain artworks] in fact came into 

the possession of one of our public collections and, if they did, whether they are still there, 

otherwise what ha[s] happened to them.” (See Scholl-Tatevosyan Decl. Ex. 38.) This letter 

listed—as part of a longer list containing all pieces claimed by Elizabeth in her 1959 FCSC 

claim—the five above-named pieces. In September 1966, a letter was written by the Director of 

the Museum of Fine Arts to the Ministry of Cultural Affairs stating that “of the artworks listed 

by the Financial Institutions Authority, 10 pictures that once comprised the property of the 

Herzog family are now the property of the Museum of Fine Arts.” (See Walker Decl. Ex. L-6, 

ECF No. 148-20.) Included in that list of ten were the five paintings. This letter explained that 

the pieces had entered the property of the state as a result of the Kiss Forfeiture order. (See id.) 

While a number of the pieces in that list had never been mentioned in connection with the Kiss 

Forfeiture, and at least four on them were included in Dr. Oltványi’s 1951 “mistake letter,” the 

question is not whether Hungary accurately described how it obtained possession. Rather, the 

question is when the pieces were taken, and what that means for plaintiffs’ claims in the lawsuit 

given the September 1966 letter’s affirmation that the Hungarian government considered these 

pieces to be “the property of the Museum of Fine Arts.” (See id.) 
61 

Hungarian documents from the time period directly following the enactment of the 1973 

Agreement also corroborate the state’s ownership of the five pieces. A letter dated March 14, 

1973 (eight days after the signing of the Agreement), referenced the May 1966 letter and said 

that “[t]he scope of the claims settlement agreement includes . . . paintings that formerly 

belonged to the Weiss de Csepel family as listed in our letter of May 10, 1966.” (See SchollTatevosyan Decl. Ex. 39.) This underscores the conclusion that, regardless of exactly when the 

pieces were taken, the Hungarian government considered them to be state property at least by the 

time the 1973 Agreement was signed, if not before. The Hungarian government reiterated this 

position in a December 11, 1973 letter to the Minister of Culture, wherein these five paintings, as 

well as others, were listed as belonging to the state based on the 1973 Agreement. (See SchollTatevosyan Decl. Ex 37.) This is consistent with the ledger presented to the Hungarian 

government by the United States in conjunction with the negotiation of the 1973 Agreement. 

(See Scholl-Tatevosyan Decl. Ex. 36.) This ledger contained a list of Americans with claims and 

made a specific reference to the $457,290.80 that was paid to Elizabeth in 1959 (which included 

$210,000 for the twelve paintings). See Section III.D.2, supra. 

Whether the Hungarian government agreed with Elizabeth’s representation in 1959 that 

her pieces were taken pursuant to the 1954 Museum Decree, or whether her representation was 

incorrect, is simply not relevant to the outcome of plaintiffs’ claims. For example, the 

September 1966 letter—which post-dated the 1973 Agreement negotiations cited by plaintiffs in 

which the Hungarian negotiators appeared to reject Elizabeth’s claims (see Benenati Decl. Ex. E 

at 239, ECF No. 22-7)—stated that Elizabeth’s pieces were taken as a result of the Kiss 

Forfeiture. (See Walker Decl. Ex. L-6.) If the pieces had in fact become state property as a 

result of the Kiss Forfeiture, they would not be covered by the 1973 Agreement, as that pre-dated 
62 

her U.S. citizenship. The Court would still need to dismiss claims related to these pieces, 

however, because the Kiss Forfeiture was not sufficiently “intertwined” with the Holocaust-era 

taking to constitute a taking in violation of international law. See Section III.C.1, supra. And, if 

the 1966 letter itself constituted a taking by declaring the pieces “state property,” they would be 

covered by the 1973 Agreement. Because Elizabeth’s claims to these pieces must fail either 

way, the Court need not determine exactly when the pieces were taken. 

Moreover, plaintiffs may be correct that Elizabeth received no additional compensation 

for the settlement of these claims pursuant to the 1973 Agreement (or the nationalization of her 

pieces sometime in the late 1950’s or 1960’s). But this is immaterial under the text of the 1973 

Agreement, which provides that once Hungary pays the $18,900,000, it is discharged from all 

claims, whether or not they were presented to Hungary. See 1973 Agreement at Art. 6(1). 

Under the Agreement, the United States government was solely responsible for distributing 

money to potential claimants. See id. at Art. 5. Therefore, if Elizabeth did not receive any 

additional money after the signing of the 1973 Agreement, she would have to take that up with 

the United States government, not Hungary. Furthermore, even though the Court does not doubt 

that Elizabeth made her 1959 claim in good faith, she likely received funds for pieces that were 

in fact taken before 1952. Whether Elizabeth received from the FCSC more or less than she was 

entitled to is beyond the Court’s purview, since by statute, it cannot review the FCSC’s 

decisions. See 22 U.S.C. §1641m. And, since the Hungarian and U.S. negotiations included 

these same pieces under the umbrella of the 1973 Agreement, the Court has no jurisdiction over 

these pieces due the FSIA’s treaty exception. See 28 U.S.C. § 1604; see also note 13, supra. 

However, for one piece not discussed in the September 1966 letter—Munkácsy’s In the 

Studio—the Court will retain jurisdiction. The painting was deposited with the Museum of Fine 
63 

Arts in the 1950’s. (See Walker Decl. Ex. P-5, ECF No. 148-24.) While it was listed in the May 

10, 1966 letter asking whether certain pieces belonged to the state, the September 1966 letter 

failed to include it in the list of the Herzog pieces that “are now the property of the Museum of 

Fine Arts.” (Compare Scholl-Tatevosyan Decl. Ex. 38 with Walker Decl. Ex. L-6.) Defendants 

provided no further information about the painting’s whereabouts after the 1950’s deposit until 

March 14, 1973, when a Hungarian government official wrote that “[t]he works of art in question 

[including the Munkácsy]—should they have not yet passed into Hungarian state ownership—

have become property of the Hungarian State by virtue of the claims settlement agreement.” 

(See Scholl-Tatevosyan Decl. Ex. 39; see also Scholl-Tatevosyan Decl. Ex. 37 (listing the 12 

pieces claimed by Elizabeth “including two paintings by Munkácsy” as among those now in state 

ownership).) However, In the Studio is still listed by defendants as “on deposit.” (See SchollTatevosyan Decl. Ex. 1); see also note 20, supra. This suggests that the piece may not actually 

have been taken in 1973, as indicated by the March and December 1973 letters. And, any taking 

after 1973 would be a taking in violation of international law not settled by the 1973 Agreement. 

As a result, the Court will retain jurisdiction over claims related to this piece, as defendants have 

not met their burden to demonstrate that the expropriation exception does not apply. 

VI. MOTION TO DISMISS 

 A. Legal Standard 

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 

what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, “[w]hile a 

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 
64 

allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires 

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do.” Id. (internal quotation marks, brackets, and citations omitted). A plaintiff’s 

allegations must be facially plausible, which requires that “the plaintiff plead[] factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

 “When there are well-pleaded factual allegations, a court should assume their veracity 

and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. If the 

facts alleged in the complaint taken as true fail to state a claim upon which relief could be 

granted, under Rule 12(b)(6) a court must dismiss the case. See Am. Chemistry Council, Inc. v. 

U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013). 

 In addition to their jurisdictional challenge as to the 19 pieces of allegedly returned 

artwork (see Appendix B), defendants renew their arguments as to four issues raised in their 

previous motions to dismiss—act of state, international comity, exhaustion, and statute of 

limitations. These arguments were all rejected by this Court or the Court of Appeals. See, e.g., 

de Csepel, 808 F. Supp. 2d at 142-43 (declining to address statute of limitations at motion to 

dismiss stage, rejecting act of state); see also de Csepel, 714 F.3d at 604 (same); see also id. at 

608 (concluding that international comity should not be decided on a motion to dismiss); de 

Csepel, 169 F. Supp. 3d at 168-69 (rejecting exhaustion). Defendants now argue that since fact 

discovery is over, the Court should revisit its rulings in view of the facts that have come to light 

through discovery. But, as explained below, the Court is still unwilling to decide many of these 

fact-intensive issues within the context of a motion to dismiss. 
65 

B. Act of State Doctrine 

 Defendants argue that “[t]he 1950 Confiscation Order [from the Kiss Forfeiture] is an 

‘act of state’ that memorializes a legitimate confiscation allowed by the pre-war, non-biased Act 

No XI of 1929,” and thus should not be reviewed by the Court. (See Mot. to Dismiss at 40.) 

“The act of state doctrine ‘precludes the courts of this country from inquiring into the validity of 

the public acts a recognized foreign sovereign power committed within its own territory.’” 

World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1164 (D.C. Cir. 2002) 

(quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964)). 

Defendants’ act of state argument requires little attention in light of the conclusion of 

Section III.C.6, supra, that the Court lacks jurisdiction over nine of the eleven pieces from the 

amended complaint that were also included in the Kiss Forfeiture. As a result, defendants’ 

argument is moot as to those nine pieces. Moreover, as the Court found that Dr. Oltványi’s 1951 

“mistake letter” meant that József Borsos, Portrait of the Architect Mátyás Zitterbarth, 18(i) in 

the amended complaint, was not in fact taken by the Kiss Forfeiture, the only remaining piece the 

1950 Order could apply to is El Greco’s The Espolio, 17(viii). However, defendants have 

conceded that this piece was a wartime taking by Hungary in its alliance with Nazi Germany and 

never returned to the Herzog siblings. The piece’s subsequent inclusion in the Kiss Forfeiture is 

therefore irrelevant, as it did not change the painting’s status as art initially expropriated and 

taken into ownership by the World War II-era Hungarian government in cooperation with the 

Nazis. Therefore, the act of state doctrine does not apply to El Greco’s The Espolio. 

C. International Comity 

 Defendants argue that “the principles of international comity warrant recognition of the 

2008 Hungarian Judgment [in the Nierenberg litigation], and this Court should reject Plaintiffs’ 
66 

demand to re-litigate ownership of . . . artworks adjudicated in that action.” (See Mot. to Dismiss 

at 46.) In its first opinion, the Court dismissed claims relating to any artworks litigated in the 

Nierenberg action, concluding that “the record is devoid of evidence of ‘either prejudice in the 

court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or 

any other special reason why the comity of this nation should not allow it full effect.’” de 

Csepel, 808 F. Supp. 2d at 145 (quoting Hilton v. Guyot, 159 U.S. 113, 202 (1895)). However, 

the Court of Appeals reversed, “[b]ecause nothing in the complaint contradicts the family’s 

claims of due process violations, [so] dismissal at this stage [is] inappropriate.” de Csepel, 714 

F.3d at 608. Defendants contend that the Court can now decide to accord comity to the judgment 

despite plaintiffs’ allegations because, “as is clear from all of the materials filed in the 

Nierenberg proceedings, Ms. Nierenberg was afforded significant due process rights in 

Hungary.” (See Mot. to Dismiss at 44.) 

 1. Nierenberg Litigation 

 Martha Nierenberg filed her suit in Hungary in 1999 and listed in her complaint a number 

of works owned by her mother, Elizabeth, and her uncles István and András. (See SchollTatevosyan Decl. Ex. 20.) She petitioned for the return of twelve pieces belonging to Elizabeth. 

Nine of those twelve are in the amended complaint.25 Another two listed in the petition, Lucas 

 

25 Those nine pieces are: 

(1) Barthel Bruyn the Elder, Portrait of Petrus von Clapis, half-length, in a blue 

coat with fur collar, 17(i) in the amended complaint; 

(2) Alonso Cano, Portrait of Don Balthasar Carlos (1629-1646), Standing fulllength, in a Landscape, 17(ii); 

(3) Gustave Courbet, Le Chateau de Blonay (neige), (The Chateau of Blonay 

(snow)), 17(iv); 

(4) Pseudo Pier Francesco Fiorentino, The Madonna and Child, with the Infant 

Saint John, Saint Catherine and Angels, 17(ix); 

(5) Domenikos Theotokopoulos, El Greco, The Holy Family with Saint Anne, 
67 

Cranach’s Joachim with the Angel and John Opie’s Portrait of an Old Lady, have already been 

dismissed from this case. See de Csepel, 169 F. Supp. 3d at 167. The last of the twelve, 

Munkácsy’s Bust of Christ, was returned to Nierenberg while the case was ongoing. (See SchollTatevosyan Decl. Exs. 22-24.) 

The pieces listed in Nierenberg’s complaint as attributable to András and István include 

at least eighteen pieces included in the amended complaint. (See Scholl-Tatevosyan Decl. Ex. 

20.) However, as András and István’s heirs declined to participate in the Nierenberg Litigation 

(see Scholl-Tatevosyan Decl. Ex. 27 (letter from Julia Alice and Maria Angela declining to 

participate)), the Hungarian court did not render any decision with regard to those pieces, and 

thus, defendants do not argue they should be dismissed from the case on the ground of comity. 

(See Mot. to Dismiss at 46 (“[T]he principles of international comity warrant recognition of the 

2008 Hungarian Judgment, and this Court should reject Plaintiffs’ demand to re-litigate 

ownership of . . .artworks adjudicated in that action.” (emphasis added)).) 

 “On October 20, 2000 the Budapest Metropolitan Court ordered that all paintings except 

one be returned to Martha.” (See Pls.’ Opp. at 14; see also Scholl-Tatevosyan Decl. Ex. 47 at 35 

(describing judgment requiring return of all pieces except John Opie’s Portrait of an Old Lady, 

which it found was acquired by the state).) In November 2002, Hungary’s Supreme Court 

 

17(x); 

(6) Sir Anthony Van Dyck, Portrait of Margaret of Lothringen, 17(xvii); 

(7) Károly Brocky, Bacchanale, 18(ii); 

(8) Mihály Munkácsy, “La Visite” (The Afternoon Visit), 18(iii); and 

(9) Mihály Munkácsy, In the Studio, 18(iv). 

The Court notes that numbers (1), (2), (4), (5), and (6) in this list have already been dismissed for 

lack of jurisdiction. As a result, whether comity is accorded to the Nierenberg decision only 

affects claims as to four pieces (numbers (3), (7), (8), and (9)).
68 

vacated the Metropolitan Court’s judgment primarily on the basis that Nierenberg had not proven 

that she, as opposed to the heirs of the other siblings, owned all the claimed paintings. (See id. at 

36-38 (describing 2002 judgment).) 

In 2005, the Metropolitan Court concluded that Nierenberg was entitled to only one 

painting, El Greco’s Holy Family. (See id. at 63.) This judgment was once again appealed, and 

on January 10, 2008, Nierenberg’s claim was rejected in its entirety by the Metropolitan Court of 

Appeals. (See id. at 67 (describing 2008 decision); see also Scholl-Tatevosyan Decl. Ex. 26 

(2008 decision).) The Hungarian court concluded that the defendants had acquired ownership to 

all the claimed paintings by, inter alia, uscupation (i.e., adverse possession), a criminal decision 

(i.e., the Kiss Forfeiture), and international claims settlement (i.e., Elizabeth’s 1959 claim and 

the 1973 Agreement). (See Scholl-Tatevosyan Decl. Ex. 48 at 68-69.) 

2. Analysis 

“‘Comity’ summarizes in a brief word a complex and elusive concept—the degree of 

deference that a domestic forum must pay to the act of a foreign government not otherwise 

binding on the forum.” Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 

937 (D.C. Cir. 1984). However, “the obligation of comity expires when the strong public 

policies of the forum are vitiated by the foreign act.” Id. The application of comity “varies 

according to the factual circumstances surrounding each claim for its recognition,” id.; the 

presence of such “fact-intensive issues” often makes the defense “inappropriate for resolution on 

a Rule 12(b)(6) motion.” de Csepel, 714 F.3d at 607. 

Defendants contend that since fact discovery is closed and “the factual record [is] now 

well developed,” but “the FAC makes no new allegations regarding the Hungarian proceedings,” 

it is appropriate to dismiss claims related to artworks adjudicated in the Nierenberg Litigation. 
69 

(See Mot. to Dismiss at 44.) It is true that plaintiffs’ allegations regarding the Nierenberg 

proceedings have not been fleshed out since the end of fact discovery. (See Am. Compl. ¶ 78 

(alleging only that the Hungarian proceedings “were not conducted in accordance with 

internationally recognized standards of due process or in accordance with international law”).) 

And, defendants, referring to a voluminous record relating to the Nierenberg Litigation, describe 

myriad due process rights they claim Martha Nierenberg was afforded during the litigation in 

Hungary. (See Mot. to Dismiss at 44–46.) But, defendants base their argument that the 

Nierenberg proceedings “were . . . conducted in accordance with internationally recognized 

standards of due process [and] in accordance with international law” (see Mot. to Dismiss at 44 

(internal quotation marks omitted)), on a summary docket they created to describe the 

proceedings. (See Scholl-Tatevosyan Decl. Exs. 47-49.) This docket includes citations to 

“thousands of pages of motions, briefs, expert opinions, petitions, orders [and] judgments.” (See 

Mot. to Dismiss at 44.) This is certainly not the type of evidence the Court is expected to wade 

through at the motion to dismiss stage, when plaintiffs’ complaint is presumed to be true. 

Moreover, plaintiffs argue that “while fact discovery has concluded, expert discovery has 

not even commenced,” and that the issue of comity should not be decided at this stage. (See Pls.’ 

Opp. at 48.) Contrary to defendants’ position (see Defs.’ Reply at 22), expert testimony 

comparing the Hungarian court system to the U.S. common law judicial system could well be 

relevant. Moreover, the Court has already stated that resolution of non-jurisdictional factual 

issues would need to wait for summary judgment. (See Oct. 26, 2017 Tr. at 11:11-12, ECF No. 

140.) And, the Court of Appeals observed that allegations of due process violations present “just 

the kind of fact-intensive issues that are inappropriate for resolution on a Rule 12(b)(6) motion,”

and therefore, “are properly addressed at summary judgment or trial.” See de Csepel, 714 F.3d at 
70 

607, 608. The Court therefore declines to revisit the issue of comity at this stage. 

D. Exhaustion 

Defendants also revive their argument that claims for which plaintiffs did not exhaust 

their remedies in Hungary should be dismissed. They expanded upon this argument in their 

supplemental briefing, which argued that despite the Court of Appeals’ subsequent opinions in 

Simon and Philipp, this Court could grant the motion to dismiss on prudential exhaustion 

grounds, as those actions “are factually and procedural[ly] distinct from this action.” (See Defs.’ 

Supp. Br. at 1, ECF No. 166.) The Court cannot agree. 

Binding Circuit precedent forecloses defendants’ argument that prudential exhaustion 

bars plaintiffs’ claims. In Philipp, the Court of Appeals observed that “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.” 

Philipp, 894 F.3d at 415 (internal quotation marks and brackets omitted). As again explained by 

the Circuit several months later in Simon, this means that under the FSIA, there is no requirement 

of prudential exhaustion in cases against foreign states. See Simon, 911 F.3d at 1181 (“When 

Congress wanted to require the pursuit of foreign remedies as a predicate to FSIA jurisdiction, it 

said so explicitly.”). Although defendants suggest that these cases are procedurally different and 

thus need not be applied here, there is no suggestion in Philipp or Simon that their conclusions 

were so limited; on the contrary, they observed that “controlling circuit and Supreme Court 

precedent give no quarter to [the defendants’] theory of judicial immunity wrapped in exhaustion 

clothing.” See id. (emphasis added). Given this binding precedent, plaintiffs do not need to 
71 

exhaust their remedies in Hungary prior to bringing suit here. 

E. Statute of Limitations 

 Defendants also argue that plaintiffs’ claims are not timely. In particular, they argue that 

“[b]ecause Plaintiffs could have brought timely claims within six years of learning of the 

artworks’ location but failed to do so, the HEAR Act does not apply to retroactively extend the 

statute of limitations for claims to non-exhausted artworks,” and without the HEAR Act, all other 

claims are barred by the District’s three-year statute of limitations. (See Mot. to Dismiss at 54 

(internal quotation marks omitted).) 

 The Holocaust Expropriated Art Recovery Act of 2016, commonly referred to as the 

“HEAR Act,” was passed in recognition of “[t]he unique and horrific circumstances of World 

War II and the Holocaust[, which makes] statutes of limitations especially burdensome to the 

victims and their heirs.” See P.L. 114-308, 130 Stat. 1524, Sec. 2(6). As “[t]hose seeking 

recovery of Nazi-confiscated art must painstakingly piece together their cases from a 

fragmentary historical record ravaged by persecution, war, and genocide,” they are often unable 

to complete the process within the time constraints of existing statutes of limitations. See id. To 

provide some relief to those undergoing this process, Congress provided that “[n]otwithstanding 

any other provision of Federal or State law or any defense at law relating to the passage of 

time, . . . a civil claim or cause of action against a defendant to recover any artwork or other 

property that was lost during the covered period because of Nazi persecution may be 

commenced,” at the latest, six years after “actual discovery” by the claimant of his possessory 

interest in a work and of the work’s location. See id. at Sec. 5(a). 

 This default six-year statute of limitations may be modified in two other potential 

circumstances—for “preexisting” or “stale” claims. A “preexisting” claim is one that the 
72 

claimant already knew about, but which was barred even before the passage of the Act or which 

is not yet barred. See id. at Section 5(c). Under the Act, unless the preexisting claim also fits 

within the ambit of Section 5(e), it “shall be deemed to have been actually discovered on the date 

of enactment of this Act.” See id. This revival of preexisting claims is meant to combat, for 

example, the unfair situation where “claims expired before World War II even ended.” See id. at 

Sec. 2(6). However, some preexisting claims may also be considered “stale,” defined as where: 

(1) the claimant or a predecessor-in-interest of the claimant had knowledge of the 

elements set forth in subsection (a) on or after January 1, 1999; and 

(2) not less than 6 years have passed from the date such claimant or predecessorin-interest acquired such knowledge and during which time the civil claim or 

cause of action was not barred by a Federal or State statute of limitations. 

See id.at Sec. 5(e). Stale claims are not revived by the HEAR Act. 

 Plaintiffs’ claims are based in two theories: conversion and bailment. Under DC law, 

conversion claims accrue as soon as the defendant acquires the property unlawfully and must be 

brought within three years. See Sea Search Armada v. Republic of Colombia, 821 F. Supp. 2d 

268, 273 (D.D.C. 2011); see also Malewicz v. City of Amsterdam, 517 F. Supp. 2d 322, 335 

(D.D.C. 2007) (“[W]hen the defendant did not acquire the property lawfully in the first instance, 

the claim accrues immediately . . . .”). Plaintiffs’ conversion claims qualify as preexisting claims 

that will be revived by the HEAR Act, as claims arising from paintings taken during World War 

II would have expired long before the Herzog siblings or their successors had the ability to bring 

them. 

 The same three-year statute of limitations also applies to plaintiffs’ bailment claims. See 

de Csepel, 714 F.3d at 603. However, a bailment claim only accrues “when the plaintiff 

demands the return of the property and the defendant refuses, or when the defendant takes some 

action that a reasonable person would understand to be either an act of conversion or inconsistent 
73 

with a bailment.” Malewicz, 517 F. Supp. 2d at 335. While defendants argue (as they did in 

previous motions to dismiss) that plaintiffs’ claims accrued as early as 1999 (see Mot. to Dismiss 

at 54), the Court of Appeals concluded in its first opinion that “nothing in the complaint indicates 

that the family’s claims did in fact accrue in 1999 when Martha Nierenberg filed suit in the 

Hungarian court.” See de Csepel, 714 F.3d at 603. This is because “although litigation is often 

filed in response to refusal of a demand, it can also serve as a vehicle for increasing pressure to 

settle during ongoing negotiations.” Id. at 604. For that reason, the Court of Appeals concluded 

that “at the motion to dismiss stage, we look only at the complaint, in which we see nothing that 

conflicts with the family’s allegation that their bailment claims accrued in January 2008.” Id. If 

such facts are ultimately proven, plaintiffs’ bailment claims would be timely even without the 

HEAR Act, as the complaint was filed in 2010. 

As this Court stated in its earlier opinion, “[m]otions to dismiss ‘based on a limitations 

defense are disfavored because resolution generally requires the development of a record and the 

adjudication of factual issues.’” See de Csepel, 808 F. Supp. 2d at 139 (quoting Malewicz, 517 

F. Supp. 2d at 335). For instance, “[a]lthough what constitutes the accrual of a cause of action is 

a question of law, determining when accrual occurs in a specific case is a question of fact.” Lee 

v. Wolfson, 265 F. Supp. 2d 14, 19 (D.D.C. 2003) (internal quotation marks and brackets 

omitted). So even if plaintiffs must rely on the HEAR Act with respect to their bailment claims, 

there are a host of factual issues that must be resolved regarding when plaintiffs (or their 

predecessors) may have learned about their claims or might have been able to bring them.26 

 

26 Moreover, the Court has not even begun to “wade into . . . equitable-tolling waters,” see de 

Csepel, 714 F.3d at 603, as it has previously suggested may be appropriate given plaintiffs’ 

allegations that “for years, Hungary actively misled the Herzog Heirs into believing that it 

accepted their ownership rights to the Herzog Collection, was giving their claims serious 

consideration, and repeatedly advised them that it would reach a favorable decision, at which 
74 

As a result, the Court will not revisit its earlier ruling. It will decline to resolve 

defendants’ statute of limitations defense as to plaintiffs’ bailment claims. The Court, however, 

concludes that plaintiffs’ conversion claims are revived by the HEAR Act as “preexisting 

claims.” 

CONCLUSION 

For the foregoing reasons, the Court will grant defendants’ motion to dismiss in part and 

deny it in part. A separate Order accompanies this Memorandum Opinion. 

 _______________________ 

 ELLEN S. HUVELLE 

 United States District Judge 

Date: May 11, 2020 

 

time they could decide if any further action would be required.” See de Csepel, 808 F. Supp. 2d 

at 141 (quoting Compl. ¶ 94.) As the Supreme Court has stated, “where the complainant has 

been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,” 

Young v. United States, 535 U.S. 43, 50 (2002) (internal quotation marks omitted), the 

application of equitable tolling may be warranted. Moreover, in previous motions as in the 

current motion to dismiss, “defendants allege[d] that plaintiffs were required to exhaust their 

remedies in Hungary prior to filing suit here, a fact that, if anything, supports plaintiffs’ plea for 

equitable tolling.” See de Csepel, 808 F. Supp. 2d at 142 (emphasis in original) (internal citation 

omitted). 
75 

APPENDIX A 

Undisputed wartime takings for which the Court of Appeals approved jurisdiction 

Art Piece FAC ¶ Owner 

(1) Camille Corot, Portrait of a Woman 

(Lady with a Marguerite (Daisy)) 

17(iii) András 

(2) Gustave Courbet, Le Chateau de 

Blonay (neige), (The Chateau of Blonay 

(snow)) 

17(iv) Erzsébet 

(3) Domenikos Theotokopoulos, El 

Greco, Saint Andrew 

17(vi) András 

(4) Domenikos Theotokopoulos, El 

Greco, The Espolio, also known as El 

Expolio, The Disrobing of Christ

17(vii) István 

(5) Domenikos Theotokopoulos, El 

Greco, The Agony in the Garden, also 

known as Christ on the Mount of Olives 

17(viii) András 

(6) Polidoro Da Lanciano, Christ and the 

Woman Taken in Adultery 

17(xi) András 

(7) Eugenio Lucas Padilla (Eugenio 

Velázquez), The Revolution (8 May 

1808) 

17(xii) András 

(8) Bernardino Licinio da Pordenone, 

Portrait of a Lady, half-length, in a 

Black Robe, Holding a Book 

17(xiv) András 

(9) Figure of Saint Agnes, Schwarzwald 

Sculptor, German, circa 1430 

17(xxii) András 

(10) Figure of Saint Catherine of 

Alexandria, German, early 16th century 

17(xxiii) András 

(11) Figure of Saint Barbara, German, 

early 16th century 

17(xxiv) András 

(12) A Carved Bust of a Prophet, South 

German, probably workshop of Erasmus 

Grasser, circa 1500

17(xxvi) András 
76 

Art Piece FAC ¶ Owner 

(13) The Virgin and Child, Florentine, 

circa 1540 

17(xxvii) András 

(14) The Nativity, Anonymous, 14th

century 

17(xxviii) András 

(15) A Greek Marble Hero Relief, 

showing the Deceased at a Funerary 

Banquet, Greek, 4th century BC 

17(xxix) András 

(16) One Hundred and Seventy-Seven 

Items of Ancient Gold Jewels and Coins 

17(xxx) András 

(17) József Borsos, Girls with Garlands 

of Flowers (The Three Graces) 

17(xxxii) Erzsébet 

(18) Four ancient silver coins 17(xxxiii) András 

(19) Seventy-Eight Pieces: Ancient 

Cameos, Intaglios, Other Carved Stones 

and Semi-Precious Stones 

17(xxxiv) András 

(20) Károly Brocky, Bacchanale 18(ii) Erzsébet 

(21) Mihály Munkácsy, “La Visite” (The 

Afternoon Visit) 

18(iii) Erzsébet 

(22) “Meuron a Paris” Musical Clock, 

18th century 

19(i) András 

(23) Sebastianus Hann, Jewelry Bowl 19(ii) András 
77 

APPENDIX B 

Artworks for which the Court was directed to address jurisdiction 

Artwork FAC ¶ Owner Jurisdiction 

(1) Barthel Bruyn the Elder, 

Portrait of Petrus von Clapis, halflength, in a blue coat with fur 

collar 

17(i) Erzsébet No 

(2) Alonso Cano, Portrait of Don 

Balthasar Carlos (1629-1646), 

Standing full-length, in a 

Landscape

17(ii) Erzsébet No 

(3) Gustave Courbet, The Spring 

(Artist and Model)

17(v) István No 

(4) Pseudo Pier Francesco 

Fiorentino, The Madonna and 

Child, with the Infant Saint John, 

Saint Catherine and Angels 

17(ix) Erzsébet No 

(5) Domenikos Theotokopoulos,

El Greco, The Holy Family with 

Saint Anne 

17(x) Erzsébet No 

(6) Giovanni Pedrini, called 

Giampietro, Christ Carrying the 

Cross 

17(xiii) András No 

(7) Augustin Theodule Ribot, Still 

Life with a Chicken, a Bottle of 

Wine, Asparagus, Artichoke, 

Tomatoes and other Vegetables, 

on a Table 

17(xv) István No 

(8) Giovanni Santi, The Dead 

Christ with Two Angels, also 

known as Christ the Dolorous,

Christ with a Fly

17(xvi) István No 

(9) Sir Anthony Van Dyck, 

Portrait of Margaret of Lothringen

17(xvii) Erzsébet No 
78 

Artwork FAC ¶ Owner Jurisdiction 

(10) Alvise Vivarini or Giovanni 

Battista da Udine, Madonna and 

Child with Saint John the Baptist 

and a male Saint 

17(xviii) István No 

(11) Francisco de Zurbarán, Saint 

Andrew 

17(xix) István No 

(12) A Painted Stucco Bust 

Representing Prudence, After 

Jacopo della Quercia 

17(xx) István Yes 

(13) A Terracotta Group of the 

Virgin and Child, Italian, 15th

Century 

17(xxi) István No 

(14) The Virgin of the 

Annunciation, Austrian, circa 1400 

17(xxv) András Yes 

(15) Four Ancient Egyptian 

Sculptures, Statues, and Steles 

17(xxxi) András Yes 

(16) József Borsos, Portrait of the 

Architect Mátyás Zitterbarth 

18(i) András Yes 

(17) Mihály Munkácsy, In the 

Studio 

18(iv) Erzsébet Yes 

(18) Lajos Deák Ébner, Fair in 

Szolnok City

18(v) András No 

(19) Károly Ferenczy, Landscape 

with a Fenced Enclosure (Houses 

in Fernezely with Sheepfold) 1912 

20(i) András No