United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: June 18, 2019

No. 17-7064

ALAN PHILIPP, ET AL.,

APPELLEES

v.

FEDERAL REPUBLIC OF GERMANY, A FOREIGN STATE AND

STIFTUNG PREUSSISCHER KULTURBESITZ,

APPELLANTS

Consolidated with 17-7117

Appeals from the United States District Court

for the District of Columbia

(No. 1:15-cv-00266)

On Petition for Rehearing En Banc

Before: GARLAND, Chief Judge; HENDERSON,

ROGERS,TATEL, GRIFFITH, SRINIVASAN,MILLETT,PILLARD,

WILKINS, KATSAS**, AND RAO*, Circuit Judges.

O R D E R

Appellants’ petition for rehearing en banc, the

response thereto, and the amicus curiae brief in 
2

support of rehearing en banc were circulated to the full court,

and a vote was requested. Thereafter, a majority of the judges

eligible to participate did not vote in favor of the petition. 

Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

 FOR THE COURT: 

Mark J. Langer, Clerk

BY: /s/ 

Ken R. Meadows 

Deputy Clerk 

* Circuit Judge Rao did not participate in this matter

** A statement by Circuit Judge Katsas, dissenting from the

denial of rehearing en banc, is attached.

 
KATSAS, Circuit Judge, dissenting from the denial of 

rehearing en banc: 

The panel decision in this case, together with Simon v. 

Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) (Simon I), 

and Simon v. Republic of Hungary, 911 F.3d 1172 (D.C. Cir. 

2018) (Simon II), makes the district court sit as a war crimes 

tribunal to adjudicate claims of genocide arising in Europe 

during World War II. The basis for these decisions is not any 

federal statute authorizing a private right of action for victims 

of foreign genocide, nor even any statute punishing foreign 

genocide under United States law. Rather, these decisions rest

on a statute abrogating the jurisdictional immunity of foreign 

sovereigns from claims for unlawful takings of property. As a 

result, the district court must hear genocide claims against 

foreign sovereigns, but only to determine whether it has 

subject-matter jurisdiction over common-law tort claims for 

conversion and the like. Moreover, the plaintiffs bringing these 

genocide-based takings claims may recover neither for killings 

nor even for personal injuries, but only for the loss of their 

property. And the district court must adjudicate these claims—

and thus effectively determine the scope of a genocide—

without first affording the foreign sovereign an opportunity to

provide redress, whether for genocide or conversion. 

Before allowing this remarkable scheme to proceed 

further, we should reconsider it en banc. In this case, Philipp 

v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir. 

2018), and in Simon II, we rejected any defense of exhaustion 

or comity-based abstention for claims under the Foreign 

Sovereign Immunities Act (FSIA). These decisions create a 

clear split with the Seventh Circuit, are in tension with 

decisions from the Ninth and Eleventh Circuits, disregard the 

views of the Executive Branch on a matter of obvious foreignpolicy sensitivity, and make the FSIA more amenable to 

human-rights litigation against foreign sovereigns than the 

Alien Tort Statute (ATS) is to human-rights litigation against 
2 

private defendants abetting the sovereigns. Moreover, they 

clear the way for a wide range of litigation against foreign 

sovereigns for public acts committed within their own 

territories. This includes claims not only for genocide, but also 

for the violation of most other norms of international humanrights law. The consequences of Simon I and its progeny are 

thus dramatic, while their foundations are shaky. 

I 

The FSIA provides that “a foreign state shall be immune 

from the jurisdiction of the courts of the United States and of

the States except as provided” in the FSIA itself. 28 U.S.C. 

§ 1604. It then provides that a “foreign state shall not be 

immune from the jurisdiction of courts of the United States or 

of the States” when certain exceptions apply. Id. § 1605. The 

exception at issue here, commonly called the “expropriation 

exception,” applies to 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; or 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. § 1605(a)(3). 

In Simon I, this Court held that the expropriation exception 

covers property taken as part of a genocide. We reasoned that 

genocide includes deliberately inflicting on a protected group 
3 

“conditions of life calculated to bring about its physical 

destruction.” 812 F.3d at 143 (quotation marks omitted). We 

held that the complaint at issue, which described the experience 

of Jews in Hungary between 1941 and 1944, adequately alleged 

“the requisite genocidal acts and intent,” including a 

“systematic, ‘wholesale plunder of Jewish property’” that 

“aimed to deprive Hungarian Jews of the resources needed to 

survive as a people.” Id. at 143–44 (citation omitted). We 

recognized that the international law of expropriation applies 

only to takings by one sovereign of property owned by 

nationals of another. Id. at 144. But we distinguished the 

prohibition against genocide, which encompasses acts 

committed by a sovereign “against its own nationals.” Id. at 

145. We also acknowledged that, for genocide-based 

expropriation claims, the jurisdictional and merits inquiries 

diverge: Genocide must be established to create subject-matter

jurisdiction, but the merits involve “garden-variety commonlaw causes of action such as conversion, unjust enrichment, and

restitution.” Id. at 141. As to damages, we noted that another 

FSIA exception covers claims “for personal injury or death,” 

but only for losses “occurring in the United States.” 28 U.S.C. 

§ 1605(a)(5). So, we construed the expropriation exception to 

permit plaintiffs claiming genocide to “seek compensation for 

taken property but not for taken lives.” 812 F.3d at 146 

(quotation marks omitted). 

In Philipp and Simon II, this Court rejected exhaustion, 

abstention, and forum non conveniens defenses to the 

genocide-based expropriation claims recognized in Simon I. In 

Philipp, the panel held that the FSIA, by comprehensively 

codifying rules for foreign sovereign immunity, foreclosed any 

requirement that plaintiffs exhaust remedies available in the 

courts of the defendant sovereign. 894 F.3d at 414–16. Simon 

II reaffirmed that holding. There, we stated that, unlike other 

common-law defenses preserved by the FSIA, exhaustion 
4 

“lacks any pedigree in domestic or international common law.” 

911 F.3d at 1181. We further reasoned that, if an exhaustion 

requirement would preclude the plaintiffs from returning to 

federal court (as would a comity-based abstention 

requirement), that would only make exhaustion more like 

immunity. Id. at 1180. Then, we held that the district court 

abused its discretion in dismissing the claims on forum non 

conveniens grounds, even though they involved acts 

perpetrated by the Hungarian government against Hungarian 

nationals in Hungary. Id. at 1181–90. 

II 

A 

The expropriation exception applies to claims for 

“property taken in violation of international law.” 28 U.S.C. 

§ 1605(a)(3). Simon I held that this provision encompasses 

property taken in violation of the international-law prohibition 

against genocide. In my judgment, it encompasses only 

property taken in violation of international takings law. The 

literal language could bear either meaning, but statutes must be 

construed in context. See, e.g., Nat’l Ass’n of Home Builders 

v. Defs. of Wildlife, 551 U.S. 644, 666 (2007). Here, several 

contextual considerations support the narrower reading. 

To begin, genocide is not about the taking of property. 

Rather, it involves the attempted extermination of a national, 

ethnic, racial, or religious group. A United Nations convention 

defines genocide as: 

any of the following acts committed with intent to 

destroy, in whole or in part, a national, ethnical, racial, 

or religious group, as such: (a) Killing members of 

the group; (b) Causing serious bodily or mental harm 
5 

to members of the group; (c) Deliberately inflicting on 

the group conditions of life calculated to bring about 

its physical destruction in whole or in part. 

Convention on the Prevention and Punishment of the Crime of 

Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277. Simon I

reasoned that takings may have a genocidal intent, and thus 

meet the last prong of this definition. 812 F.3d at 143–44. But 

they still must be intended to cause the “physical destruction”

of a group—what matters is the attempted mass murder. And 

if genocide involves attempted mass murder, a provision keyed 

to “property taken” would be a remarkably elliptical way of 

addressing it. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 

U.S. 457, 468 (2001). 

It would be even stranger for Congress to address genocide 

as exclusively a property offense. The FSIA’s expropriation 

exception encompasses only claims for “property,” 28 U.S.C. 

§ 1605(a)(3), whereas its separate tort exception, which 

encompasses claims “for personal injury or death,” covers only 

harms “occurring in the United States,” id. § 1605(a)(5). So, 

Simon I approved an exceedingly odd type of genocide claim—

one for property harms but not for personal injury or death. 

Moreover, the expropriation exception requires a connection 

between the property taken and commercial activity in the 

United States: the property or its proceeds must either be 

“present in the United States in connection with a commercial 

activity carried on in the United States by the foreign state,” or 

“owned or operated by an agency or instrumentality of the 

foreign state” that is itself “engaged in a commercial activity in 

the United States.” Id. § 1605(a)(3). These requirements 

would make little sense in a provision addressed to humanrights abuses such as genocide, rather than to purely economic 

wrongdoing. 
6 

As strange is the mismatch between jurisdiction and 

merits. Simon I requires proof of genocide to abrogate 

sovereign immunity—which must be determined at the outset. 

See Bolivarian Republic of Venezuela v. Helmerich & Payne 

Int’l Drilling Co., 137 S. Ct. 1312, 1318–24 (2017). But 

abrogating immunity does not create a private right of action, 

Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 

1033 (D.C. Cir. 2004), and there is no common-law right of 

action for genocide. Instead, the merits here involve “‘gardenvariety common-law’ claims,” such as “replevin, conversion, 

unjust enrichment, and bailment.” Philipp, 894 F.3d at 410–11 

(citation omitted); see also Simon I, 812 F.3d at 141. This 

scheme oddly matches the jurisdictional equivalent of a 

thermonuclear weapon (determining the scope of a genocide) 

to the merits equivalent of swatting a fly (determining whether

there was a common-law conversion). And it is in marked 

contrast to the FSIA’s terrorism exception, which applies to 

claims for various specified acts, 28 U.S.C. § 1605A(a)(1), and

which creates a cause of action for those acts, id. § 1605A(c). 

Broader statutory context creates further difficulties. The 

FSIA’s other primary exceptions are narrow ones covering 

waiver, commercial activity in the United States, rights to 

property in the United States, torts causing injury in the United 

States, and arbitration. 28 U.S.C. § 1605(a)(1)–(6). The 

Supreme Court has described these exceptions as collectively 

codifying the pre-FSIA “restrictive” theory of foreign 

sovereign immunity, which covers a sovereign’s “public acts” 

but not its commercial ones. See Helmerich & Payne, 137 S. 

Ct. at 1320–21; Verlinden B.V. v. Cent. Bank of Nigeria, 461 

U.S. 480, 486–89 (1983). In a case specifically involving the 

expropriation exception, the Court “found nothing in the 

history of the statute that suggests Congress intended a radical 

departure from these basic principles.” Helmerich & Payne, 

137 S. Ct. at 1320. Abrogating immunity for public acts 
7 

committed by a foreign sovereign against its own nationals 

within its own territory would be just such a radical departure. 

The international law of foreign sovereign immunity cuts 

in the same direction. Here is its “Basic Rule”: “Under 

international law, a state or state instrumentality is immune 

from the jurisdiction of the courts of another state, except with 

respect to claims arising out of activities of the kind that may 

be carried on by private persons.” Restatement (Third) of the 

Foreign Relations Law of the United States § 451 (1987) (Third 

Restatement). Like the FSIA, international law provides 

narrow exceptions to immunity for claims arising out of 

commercial activity, id. § 453(1); torts causing injuries within 

the forum state, id. § 454(1); property claims involving 

commercial activities, gifts, or immovable property in the 

forum state, id. § 455(1); and waiver, id. § 456(1). None of 

these exceptions covers the genocide-based takings claims 

recognized in Simon I. So, Simon I construes the FSIA to 

conflict with international law—which is to be avoided if 

possible. See Murray v. Schooner Charming Betsy, 6 U.S. (2 

Cranch) 64, 118 (1804). Of course, none of this suggests that 

genocide or other violations of international human-rights law 

should go unremedied; but such violations typically are 

addressed either through diplomacy or in international 

tribunals, rather than in the domestic tribunals of another 

sovereign. See Third Restatement § 906 & cmt. b. 

Consistent with these principles, the courts have rejected 

attempts to shoehorn modern human-rights law into the FSIA 

exceptions. For example, in Saudi Arabia v. Nelson, 507 U.S. 

349 (1993), the Supreme Court held that the commercialactivity exception did not cover claims that Saudi Arabia 

illegally detained and tortured a United States citizen employed 

by a Saudi government hospital. The Court construed the 

exception to track the restrictive theory of sovereign immunity: 
8 

[T]he intentional conduct alleged here (the Saudi 

Government’s wrongful arrest, imprisonment, and 

torture of Nelson) could not qualify as commercial 

under the restrictive theory. The conduct boils down 

to abuse of the power of its police by the Saudi 

Government, and however monstrous such abuse 

undoubtedly may be, a foreign state’s exercise of the 

power of its police has long been understood for 

purposes of the restrictive theory as peculiarly 

sovereign in nature. 

Id. at 361. In Princz v. Federal Republic of Germany, 26 F.3d 

1166 (D.C. Cir. 1994), we likewise construed the FSIA’s 

waiver exception, which includes waivers “by implication,” 28 

U.S.C. § 1605(a)(1), to track the restrictive theory. We held 

that Germany did not impliedly waive its foreign sovereign 

immunity by using slave labor during the Nazi era. 26 F.3d at 

1173. And we did so despite recognizing that slavery—like 

genocide—violates a jus cogens norm of international humanrights law, i.e., “a norm from which no derogation is 

permitted.” Id. (quotation marks omitted). 

The only deviation from this pattern is the FSIA’s 

terrorism exception, which covers a significant class of cases 

involving the public acts of a foreign sovereign. But the 

differences between the terrorism and expropriation exceptions 

are striking: The terrorism exception meticulously describes 

and limits the possible plaintiffs (United States nationals, 

members of the United States armed forces, and United States 

employees or contractors), 28 U.S.C. § 1605A(a)(2)(A)(ii); the 

possible defendants (generally, foreign states formally 

designated as sponsors of terrorism), id. § 1605A(a)(2)(A)(i); 

the acts triggering the exception (“torture, extrajudicial killing, 

aircraft sabotage, hostage taking, or the provision of material

support or resources for such an act”), id. § 1605A(a)(1); the 
9 

associated private cause of action (covering the same parties 

and acts), id. § 1605A(c); and the damages available (for 

personal injury, death, or foreseeable property loss), id.

§ 1605A(a)(1), (d). This carefully reticulated framework is far 

different from a provision keyed only to “property taken in 

violation of international law.” Id. § 1605(a)(3). 

B 

The grave consequences of Simon I bear not only on its 

correctness, but also on the appropriateness of en banc review.

Most obviously, Simon I requires federal courts to 

determine the scope of genocide committed by various foreign 

countries during World War II. We suggested that this 

determination may sometimes be straightforward—as in the 

case of Hungarian Jews in the early 1940s. See 812 F.3d at 

142–44. Even so, each individual plaintiff must prove not only

that there was a genocide, but also that he or she (or a decedent) 

was subjected to a genocidal taking. Sometimes, this will be 

far from clear. For example, the Philipp panel concluded that 

a coerced sale of art in 1935, for “barely 35% of its actual 

value,” could be an act of genocide. 894 F.3d at 409, 413–14 

(quotation marks omitted). Germany objected that the 

plaintiffs’ theory would transform into genocide any 

“‘transaction from 1933–45 between’ a Nazi-allied 

government and ‘an individual from a group that suffered Nazi 

persecution.’” Id. at 414. The panel envisioned something 

only slightly less concerning—case-by-case adjudications of 

which commercial transactions were sufficiently coercive, 

unfair, and improperly motivated to be genocide. Id. Such 

claims could be made against a number of European nations. 

See, e.g., Republic of Austria v. Altmann, 541 U.S. 677 (2004); 

Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) 

(en banc); Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 
10 

2005); Freund v. Republic of France, 592 F. Supp. 2d 540 

(S.D.N.Y. 2008). And they would create massive exposure. 

For example, in a case that, like Simon, involved Jews who lost 

property in the Hungarian Holocaust, the damages sought were 

some $75 billion—“nearly 40 percent of Hungary’s annual 

gross domestic product in 2011.” Abelesz v. Magyar Nemzeti 

Bank, 692 F.3d 661, 682 (7th Cir. 2012). 

Moreover, the reasoning of Simon I cannot be limited to 

genocide. International law sharply distinguishes between the 

law of expropriation, which restricts only the takings by one 

sovereign of property belonging to the nationals of another, see 

Third Restatement § 712, and human-rights law, which now 

governs one sovereign’s treatment of its own nationals within 

its own borders, id. § 701. Under the latter, 

A state violates international law if, as a matter of state 

policy, it practices, encourages, or condones 

(a) genocide, (b) slavery or slave trade, (c) the murder 

or causing the disappearance of individuals, 

(d) torture or other cruel, inhuman, or degrading 

treatment or punishment, (e) prolonged arbitrary 

detention, (f) systematic racial discrimination, or (g) a 

consistent pattern of gross violations of 

internationally recognized human rights. 

Id. § 702. The first six of these seven categories are jus cogens 

norms—the most serious ones, which are binding even in the 

face of an international agreement to the contrary. Id. cmt. n. 

Most of them—including not only genocide, but also slavery, 

murder, degrading treatment, and systemic racial 

discrimination—can involve harms to property. Under the 

reasoning of Simon I, all of these could be the subject of 

litigation through the expropriation exception. 
11 

To appreciate the gravity of this, consider if the shoe were 

on the other foot. Imagine the United States’ reaction if a 

European trial court undertook to adjudicate a claim for tens of 

billions of dollars for property losses suffered by a class of 

American victims of slavery or systemic racial discrimination. 

Yet that is a precise mirror image of Simon. Given the stakes, 

what we once said about the waiver exception rings true here: 

We think that something more nearly express is 

wanted before we impute to the Congress an intention 

that the federal courts assume jurisdiction over the 

countless human rights cases that might well be 

brought by the victims of all the ruthless military 

juntas, presidents-for-life, and murderous dictators of 

the world, from Idi Amin to Mao Zedong. Such an 

expansive reading of § 1605(a)(1) would likely place 

an enormous strain not only upon our courts but, more 

to the immediate point, upon our country’s diplomatic 

relations with any number of foreign nations. In many 

if not most cases the outlaw regime would no longer 

even be in power and our Government could have 

normal relations with the government of the day—

unless disrupted by our courts, that is. 

Princz, 26 F.3d at 1175 n.1. 

III 

Philipp and Simon II magnify the concerns about Simon I

and come with their own analytical difficulties. 

A 

On the merits, Philipp and Simon II held that the FSIA 

forecloses any exhaustion or comity-based abstention defense. 

894 F.3d at 414–16; 911 F.3d at 1180–81. But far from 
12 

foreclosing these defenses, the FSIA affirmatively 

accommodates them. It provides that, for any claim falling 

within an immunity exception, “the foreign state shall be liable 

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

individual under like circumstances.” 28 U.S.C. § 1606. A 

“private individual” under “like circumstances” would be one 

facing claims for aiding and abetting violations of international 

human-rights law. Such claims would be brought under the 

ATS, which provides that “[t]he district courts shall have 

original jurisdiction of any civil action by an alien for a tort 

only, committed in violation of the law of nations or a treaty of 

the United States.” 28 U.S.C. § 1350. Another like 

circumstance might involve private individuals sued for 

wrongful death, battery, or conversion. In either instance, 

exhaustion and abstention defenses would likely be available. 

The Supreme Court has at least hinted that an ATS 

plaintiff must exhaust local remedies before litigating an 

international-law tort claim in federal district court. In Sosa v. 

Alvarez-Machain, 542 U.S. 692 (2004), the Court explained: 

the European Commission argues ... that basic 

principles of international law require that before 

asserting a claim in a foreign forum, the claimant must 

have exhausted any remedies available in the 

domestic legal system, and perhaps in other forums 

such as international claims tribunals. We would 

certainly consider this requirement in an appropriate 

case. 

Id. at 733 n.21 (citations omitted). Four justices have embraced 

exhaustion more definitively—without provoking any 

disagreement. See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 

1430–31 (2018) (Sotomayor, J., dissenting); Kiobel v. Royal 

Dutch Petroleum Co., 569 U.S. 108, 133 (2013) (Breyer, J., 
13 

concurring in the judgment). The Ninth Circuit has held that 

exhaustion is required in ATS cases if local remedies are 

adequate. See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 828–32 

(9th Cir. 2008) (en banc) (plurality opinion); id. at 833–37 

(Bea, J., concurring); id. at 840–41 (Kleinfeld, J., concurring). 

Private defendants also may seek comity-based abstention. 

For example, Mujica v. AirScan, Inc., 771 F.3d 580 (9th Cir. 

2014), involved ATS and state-law claims against defendants 

alleged to have abetted the bombing of a Colombian village by 

the Colombian government. See id. at 584. After dismissing 

the ATS claims as impermissibly extraterritorial, the Ninth 

Circuit dismissed the state-law claims “based on the doctrine 

of international comity.” Id. at 596–97. As the court explained, 

“[i]nternational comity is a doctrine of prudential abstention,

one that ‘counsels voluntary forbearance when a sovereign 

which has a legitimate claim to jurisdiction concludes that a 

second sovereign also has a legitimate claim to jurisdiction 

under principles of international law.’” Id. at 598 (citation 

omitted). Likewise, in Ungaro-Benages v. Dresdner Bank AG, 

379 F.3d 1227 (11th Cir. 2004), the Eleventh Circuit dismissed 

on comity-based abstention grounds a claim by an American 

citizen that two German banks, during the 1930s and early 

1940s, had stolen her family property “through the Nazi 

Regime’s program of ‘Aryanization.’” Id. at 1229, 1237–40. 

Comity interests are heightened where, as here, the claims 

“arise from events of historical and political significance” to

the foreign sovereign. Republic of Philippines v. Pimentel, 553 

U.S. 851, 866 (2008). Like exhaustion, comity-based 

abstention presupposes an adequate forum in the offending 

country. See, e.g., Mujica, 771 F.3d at 603–04. But Philipp

and Simon II rejected exhaustion and abstention defenses as 

categorically unavailable in FSIA cases, not on the narrower 

ground that fora in Germany and Hungary were inadequate. 
14 

The Philipp panel reasoned that because the FSIA 

comprehensively sets forth immunity defenses, Republic of 

Argentina v. NML Capital, Ltd., 573 U.S. 134, 141–42 (2014), 

but does not expressly provide for exhaustion or abstention 

defenses, it must implicitly have foreclosed those defenses. 

894 F.3d at 415–16. But foreign sovereign immunity—which 

eliminates subject-matter jurisdiction—is distinct from nonjurisdictional defenses such as exhaustion and abstention. As 

shown above, these defenses are available to private defendants

no less than to foreign sovereigns. In that critical respect, the 

defenses are less akin to immunity than to generally applicable, 

judge-made defenses such as forum non conveniens, the act-ofstate doctrine, and the political-question doctrine—none of 

which is mentioned in the text of the FSIA, but all of which 

survived its enactment. See, e.g., Agudas Chasidei Chabad v. 

Russian Federation, 528 F.3d 934, 951 (D.C. Cir. 2008); 

Hwang Geum Joo v. Japan, 413 F.3d 45, 48 (D.C. Cir. 2005). 

Exhaustion and abstention are also different from arbitration. 

So, the inclusion of an arbitration requirement in the terrorism 

exception, 28 U.S.C. § 1605A(a)(2)(A)(iii); see Philipp, 894 

F.3d at 415, says nothing about exhaustion or abstention. 

Simon II further reasoned that exhaustion “lacks any 

pedigree in domestic or international common law.” 911 F.3d 

at 1181. But international law requires an individual “claiming 

to be a victim of a human rights violation” to “exhaust[ ] 

available remedies under the domestic law of the accused state”

before another state may espouse his claim. See Third 

Restatement § 703 cmt. d. Likewise, individual victims 

generally have international remedies only as provided by 

agreement, see id. cmt. c, and international agreements “also 

generally require that the individual first exhaust domestic 

remedies,” id. cmt. d. To be sure, the Third Restatement does 

not expressly apply the same rule to instances where the victim

seeks redress in the courts of a foreign sovereign. See Philipp, 
15 

894 F.3d at 416. But the drafters would have had no occasion 

to address exhaustion in that specific circumstance, given the 

overwhelming likelihood that, under international standards, 

sovereign immunity would have barred the claims. See Third 

Restatement §§ 451–56. Moreover, the logic for requiring 

exhaustion is even stronger in the context of actions filed in 

domestic courts; “if exhaustion is considered essential to the 

smooth operation of international tribunals whose jurisdiction 

is established only through explicit consent from other 

sovereigns, then it is all the more significant in the absence of 

such explicit consent to jurisdiction.” Sarei, 550 F.3d at 830 

(plurality opinion). As for domestic exhaustion rules, federal

courts have crafted them for over a century, out of respect for

other sovereigns such as states or Indian tribes. See, e.g., Iowa 

Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14–15 (1987); Ex parte 

Royall, 117 U.S. 241, 251 (1886). 

Finally, Simon II reasoned that exhaustion might, by 

operation of res judicata, bar plaintiffs from ever bringing 

claims in the United States. 911 F.3d at 1180. That is not 

necessarily true, at least if the plaintiff reserves the right to 

litigate international claims in the United States after pursuing 

domestic tort claims elsewhere. Cf. England v. La. State Bd. of 

Med. Exam’rs, 375 U.S. 411, 413–19 (1964). In any event, 

there is nothing anomalous with exhaustion triggering 

preclusion. See, e.g., Iowa Mut., 480 U.S. at 19. Moreover, 

the same objection would apply to exhaustion under the ATS, 

yet the Ninth Circuit still adopted it. Comity-based abstention 

does prevent a plaintiff from litigating in a United States forum, 

yet the courts have applied it to cases involving private 

defendants facing foreign-centered human-rights claims. The 

FSIA makes the same defenses also available to foreign 

sovereigns. 
16 

B 

Philipp and Simon II warrant rehearing en banc for several 

reasons. First, they create a circuit split on a sensitive foreignpolicy question. The Seventh Circuit has required Hungarian 

Holocaust survivors to exhaust remedies in Hungary before 

seeking to litigate under the FSIA’s expropriation exception. 

Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 856–66 

(7th Cir. 2015); Abelesz, 692 F.3d at 678–85. After describing 

the nearly existential threat of a $75 billion lawsuit, the Seventh 

Circuit held that “Hungary, a modern republic and member of 

the European Union, deserves a chance to address these 

claims.” Abelesz, 692 F.3d at 682. The Philipp panel 

acknowledged creating a circuit split. 894 F.3d at 416. 

Second, Philipp rejected the position advanced by the 

United States. See 894 F.3d at 416. In Simon II, the United 

States argued at length that “[d]ismissal on international comity 

grounds” was consistent with the FSIA and “can play a critical 

role in ensuring that litigation in U.S. courts does not conflict 

with or cause harm to the foreign policy of the United States.” 

Br. for Amicus Curiae United States at 14–15, Simon v. 

Republic of Hungary (No. 17-7146); see also id. at 14–24. The 

United States again took the same position in supporting 

rehearing en banc in Philipp. Br. for United States as Amicus 

Curiae in Support of Rehearing En Banc at 3–14. Given the 

Executive Branch’s “vast share of responsibility for the 

conduct of our foreign relations,” Am. Ins. Ass’n v. Garamendi, 

539 U.S. 396, 414 (2003) (quotation marks omitted), we should 

consider its views on this issue with special care. 

Third, by eliminating various defenses, these decisions 

heighten concern about Simon I. Two important defenses—

exhaustion and abstention—are now foreclosed. And if it was 

an abuse of discretion to dismiss on forum non conveniens 
17 

grounds the foreign-cubed claims in Simon II, see 911 F.3d at 

1182, then few of these human-rights cases will qualify for that 

defense. Other possible doctrines for limiting the expropriation 

exception, see Altmann, 541 U.S. at 713 (Breyer, J., 

concurring), are also unlikely to have much effect: Personal 

jurisdiction requirements do not apply to foreign sovereigns. 

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 

82, 96 (D.C. Cir. 2002). Venue is always proper in the District 

of Columbia for actions “brought against a foreign state or 

political subdivision thereof.” 28 U.S.C. § 1391(f)(4). The 

act-of-state doctrine may not apply to Nazi-era claims, see First 

Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 764 

(1972) (plurality opinion); Bernstein v. N.V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d 

Cir. 1954) (per curiam), and generally does not apply to 

expropriation claims arising after January 1, 1959, see 22 

U.S.C. § 2370(e)(2). Statutes of limitation may bar some 

claims arising from World War II, despite inevitable tolling or

concealment arguments, but they will have no effect on claims 

arising from recent alleged human-rights abuses. Finally, 

Simon I itself held that the political-question doctrine does not 

bar the claims that it approved. See 812 F.3d at 149–51. 

Fourth, these decisions make the FSIA more receptive to 

human-rights litigation than is the ATS. Under Simon I’s broad 

interpretation of the expropriation exception, most modern 

ATS claims could be recast as FSIA ones. And after Philipp, 

recasting has significant advantages. For example, ATS claims 

that a defendant had abetted crimes against humanity by Papua 

New Guinea must be exhausted. See Sarei, 550 F.3d at 824 

(plurality opinion). Yet under Philipp, the same lawsuit would 

face no exhaustion requirement if filed directly against Papua 

New Guinea. ATS claims of abetting atrocities committed by 

a foreign sovereign within its own territory are impermissibly 

extraterritorial. See Kiobel, 569 U.S. at 111–12, 124–25. Yet 
18 

under Philipp, the same lawsuits, if filed directly against the 

foreign sovereigns, might survive on the theory that commonlaw tort claims have no territorial limit. Compare Mujica, 771 

F.3d at 591–96 (dismissing ATS claims as extraterritorial), 

with id. at 596–615 (dismissing state-law claims only on 

comity grounds). Such results are perverse, for FSIA actions 

against foreign sovereigns raise even greater foreign-policy 

concerns than do ATS actions against private parties who may 

abet them. 

Finally, the mismatch noted above between jurisdictional 

and merits issues under Simon I makes exhaustion even more 

important. If the federal courts must resolve the scope of a 

genocide in order to decide garden-variety conversion claims, 

then so much the better if the foreign sovereign can perhaps 

resolve the claims by addressing only the merits. 

* * * * 

For these reasons, I would grant rehearing en banc to 

reconsider the approach to the FSIA’s expropriation exception 

set forth in Simon I, Philipp, and Simon II.