This appeal had been captioned “Holocaust Victims of Bank



Theft v. Erste Group Bank.” We have reformed the caption to

reflect the first named plaintiff. Federal Rule of Civil Procedure

10(a) requires pleadings to name parties, not to presume the

merits of the plaintiffs’ claims, no matter how compelling they

may be.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2940

ERNO KALMAN ABELESZ et al.,



Plaintiffs-Appellees,

v.

ERSTE GROUP BANK AG,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

No. 11-2946

IN RE:

ERSTE GROUP BANK AG,

Petitioner.
2 Nos. 11-2940 & 11-2946

See Abelesz v. OTP Bank, ___ F.3d ___ (7th Cir. 2012); Abelesz v. 1

Magyar Nemzeti Bank, ___ F.3d ___ (7th Cir. 2012).

Petition for Writ of Mandamus

to the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

ARGUED JANUARY 11, 2012—DECIDED AUGUST 22, 2012

Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. A group of Holocaust

survivors and heirs of other Holocaust victims filed suit

against several banks alleging the banks participated in

expropriating property from Hungarian Jews during

the Holocaust. This case, and a parallel case against

the Hungarian national railway, have produced nine

separate pending appeals and mandamus petitions. In

this opinion, we address the plaintiffs’ claims against

defendant Erste Group Bank AG (“Erste”), which is a

privately owned Austrian bank. In separate opinions

released today, we address plaintiffs’ claims against two

other private banks, the Hungarian national bank, and

the Hungarian national railway.1

Invoking subject-matter jurisdiction under the Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1330(a), the

Alien Tort Statute, 28 U.S.C. § 1350, and federal question

jurisdiction, 28 U.S.C. § 1331, plaintiffs allege six causes
Nos. 11-2940 & 11-2946 3

of action: genocide, aiding and abetting genocide,

bailment, conversion, constructive trust, and accounting.

Plaintiffs seek to have their case certified as a class

action and ask that each defendant bank be held jointly

and severally responsible for damages of approximately

$75 billion. The defendant banks moved to dismiss on

many grounds, including lack of subject-matter jurisdiction and lack of personal jurisdiction. The district court

denied all motions to dismiss, motions to reconsider,

and motions for certification of interlocutory appeals

under 28 U.S.C. § 1292(b). Holocaust Victims of Bank Theft

v. Magyar Nemzeti Bank, 807 F. Supp. 2d 689 (N.D. Ill.

2011) (denying motions to dismiss); 807 F. Supp. 2d 699

(N.D. Ill. 2011) (denying motions for reconsideration,

clarification, and certification of interlocutory appeal).

Those denials pose some challenging problems of

appellate jurisdiction, as we explain in Abelesz v. OTP

Bank, ___ F.3d at ___. The appellate jurisdiction story

in this case begins with defendant Magyar Nemzeti

Bank (“MNB”), the Hungarian national bank, which

moved to dismiss based on a defense of sovereign immunity under the FSIA, 28 U.S.C. § 1604. The district

court denied MNB’s motion. MNB has appealed that

denial, and as we explain in Abelesz v. Magyar Nemzeti

Bank, it is well established that a denial of sovereign

immunity under the FSIA is a collateral order subject

to interlocutory appeal. ___ F.3d at ___. From that

one sound basis for appellate jurisdiction, MNB has

asked us to exercise pendent appellate jurisdiction over

the other arguments it made for dismissal. And in

turn, appellant Erste, like the other private banks, OTP
4 Nos. 11-2940 & 11-2946

While we express no opinion on the merits of plaintiffs’ claims 2

under the Alien Tort Statute, we note for completeness that

the Supreme Court is currently considering two aspects of the

scope of the ATS that may be relevant to plaintiffs’ claims

here: (1) whether corporations are subject to tort liability for

violations of the law of nations, and (2) whether and under

what circumstances the ATS allows U.S. courts to recognize

a cause of action for violations of the law of nations occurring

within the territory of a sovereign other than the United

States. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111

(2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17,

2011) (No. 10-1491), calendared for reargument, 80 U.S.L.W. 3506

(Mar. 5, 2012).

and MKB, seeks here to stretch the narrow doctrine of

pendent appellate jurisdiction to include its own appeal

and the separate issues it seeks to raise. Erste, like

MKB and OTP, also filed a petition for writ of mandamus,

which it asks that we consider in the event that

appellate jurisdiction is lacking.

Erste’s appeal must be dismissed for lack of appellate

jurisdiction without reaching the merits of the issues

it raises. Erste’s petition for writ of mandamus is also 2

denied because, while we recognize the extraordinary

nature of this litigation, Erste has not demonstrated a

clear and indisputable right to relief on par with

MKB’s and OTP’s personal jurisdiction defense.

I. Appellate Jurisdiction

Erste seeks review of the district court’s denial of

its motion to dismiss. As a general rule, the district court
Nos. 11-2940 & 11-2946 5

must issue a final order before an appellate court

has jurisdiction to entertain an appeal. See 28 U.S.C. § 1291.

Erste advances two arguments for hearing its appeal.

First, it argues that the district court’s denial of its

motion to dismiss based on the political question doctrine

can be appealed now under the collateral order doctrine.

Second, Erste argues, like all three of its co-defendants,

that we can exercise pendent appellate jurisdiction over

other issues because its appeal is “inextricably intertwined” with the appeals of its co-defendants.

Neither argument provides us with jurisdiction over

Erste’s appeal.

A. Collateral Order Doctrine

Erste, like MKB, urges that the district court’s rejection

of its political question defense, in this case based on

the United States’s involvement in the creation of the

Austrian General Settlement Fund (“GSF”), is a collateral order that can be appealed immediately. This

argument is based on the U.S. government’s efforts to

“provide some measure of justice to the victims of the

Holocaust, and to do so in their remaining lifetimes.”

Stipulated J.A. 49 (Statement of Interest filed by U.S.

government). The United States has been party to two

international settlements that have provided approximately $8 billion for the benefit of victims of the Holocaust. One of these settlements, the GSF, was established

by the Austrian federal government and Austrian companies to make payments for Holocaust-era claims against

Austria and Austrian companies, excluding claims for
6 Nos. 11-2940 & 11-2946

restitution of works of art. To facilitate the creation and

funding of the GSF, the United States pledged to help

achieve “legal peace” for Austrian companies with

respect to Nazi-era claims in U.S. courts. The United States

government, based on its participation in the GSF, filed

in the district court a Statement of Interest pursuant to

28 U.S.C. § 517 urging dismissal of the claims against

Erste “on any valid legal ground(s).” Id. at 48. The government’s Statement of Interest did not argue for

dismissal on any specific basis.

In its opinion denying Erste’s motions for reconsideration and certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the district court stated that

“based on the facts of this case at this juncture, there

remain questions as to whether the Government’s Statement of Interest is applicable and as to whether

Plaintiffs are eligible for the funds referenced in the

Statement of Interest.” 807 F. Supp. 2d at 706. Erste

argues that the district court misinterpreted the Statement of Interest, creating a new precondition to

dismissal when the filing of the Statement of Interest

should have been sufficient on its own to warrant

dismissal on political question grounds. Resolution of

this political question issue is separate from the merits

and not effectively reviewable on appeal from final judgment, says Erste, since further litigation would undermine the “legal peace” offered to Austrian corporations

like Erste in exchange for their participation in the GSF.

An immediately appealable collateral order is one that

(1) conclusively determines the disputed question;

(2) resolves important issues separate from the merits;
Nos. 11-2940 & 11-2946 7

and (3) is effectively unreviewable on appeal from a

final judgment. Mohawk Industries, Inc. v. Carpenter, 130

S. Ct. 599, 605 (2009). As we note in our analysis of

MKB’s parallel argument in Abelesz v. OTP Bank, ___ F.3d

at ___, the collateral order doctrine is a narrow exception

to “the general rule that a party is entitled to a single

appeal, to be deferred until final judgment has been

entered . . . .” Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 868 (1994) (internal citation omitted); see

also Will v. Hallock, 546 U.S. 345, 350 (2006) (“we have

not mentioned applying the collateral order doctrine

recently without emphasizing its modest scope”). The

court must consider the entire category of similar cases

to determine whether applying the collateral order doctrine under § 1291 is appropriate. See Mohawk Industries,

130 S. Ct. at 605.

In applying these teachings, the D.C. Circuit determined that the denial of a motion to dismiss on political

question grounds was not an immediately appealable

collateral order, notwithstanding the fact that the first

two requirements for invoking the collateral order

doctrine were satisfied. Doe v. Exxon Mobil Corp., 473

F.3d 345, 349 (D.C. Cir. 2007). The D.C. Circuit took to

heart the Supreme Court’s admonition that “we have

meant what we have said; although the Court has been

asked many times to expand the ‘small class’ of collaterally appealable orders, we have instead kept it

narrow and selective in its membership.” Will, 546 U.S.

at 350; see also Doe, 473 F.3d at 349. The line between

those orders that are and are not appealable as collateral orders probably owes more to history than to
8 Nos. 11-2940 & 11-2946

Our determination that we lack appellate jurisdiction is not

3

based on the fact that Erste may have another chance to

present its political question argument in a summary judgment

motion or at trial, as urged by plaintiffs. That argument by

plaintiffs misunderstands the collateral order doctrine. For

example, a defendant whose motion to dismiss a claim under

42 U.S.C. § 1983 on grounds of qualified immunity is denied

often can appeal under the collateral order doctrine even

though the same issue could be raised again later in the

district court. We hold only that a denial of a motion to

dismiss on political question grounds is not among the “small

class” of orders that are collaterally appealable. See Will,

546 U.S. at 350-55 (holding that refusal to apply Federal Tort

Claims Act’s judgment bar was not appealable as collateral

order).

precise logical consistency, but the line has been drawn

in precedents that we must respect and follow as best

we can. Erste has not directed us to, and we have not

found, any case in which a federal appeals court held

that denial of a motion to dismiss on political question

grounds was immediately appealable as a collateral

order. Permitting an appeal from the denial of a motion

to dismiss based on political question grounds would

substantially expand the scope of the collateral order

doctrine. We follow the D.C. Circuit on this question

and hold that the collateral order doctrine does not

provide appellate jurisdiction over the denial of the

motion to dismiss based on Erste’s political question

defense. Doe, 473 F.3d at 353.3
Nos. 11-2940 & 11-2946 9

B. Pendent Appellate Jurisdiction

As noted, defendant MNB, the Hungarian national

bank, has appealed the district court’s denial of its sovereign immunity defense under the FSIA. In its own

appeal, MNB raises other issues that it argues are

pendent to the FSIA immunity issue. We clearly have

jurisdiction over MNB’s appeal of the denial of

sovereign immunity and address the merits of that

defense in a separate opinion. From this one solid

foothold on appellate jurisdiction, Erste, like MKB and

OTP, argues that this court should exercise pendent

appellate jurisdiction over its own appeal because it is

“inextricably intertwined” with the appeals of its codefendants.

As we note in Abelesz v. OTP Bank, ___ F.3d at ___,

pendent appellate jurisdiction is also a narrow doctrine,

one that allows an appellate court “to review an otherwise unappealable interlocutory order if it is ‘inextricably intertwined with an appealable one.’ ” Research

Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d

973, 977 (7th Cir. 2010), quoting Montano v. City of

Chicago, 375 F.3d 593, 599 (7th Cir. 2004). This room for

the “inextricably intertwined” use of pendent appellate

jurisdiction should not be stretched to appeal normally

unappealable interlocutory orders that happen to

be related — even closely related — to the appealable

order. People of State of Ill. ex rel. Hartigan v. Peters, 861

F.2d 164, 166 (7th Cir. 1988); see also U.S. for Use of

Valders Stone & Marble, Inc. v. C-Way Const. Co., 909 F.2d

259, 262 (7th Cir. 1990) (“A close relationship between
10 Nos. 11-2940 & 11-2946

the unappealable order and the appealable order will

not suffice: it must be practically indispensable that we

address the merits of the unappealable order in order to

resolve the properly-taken appeal.”) (emphasis added). This

is so because resolving appeals from non-final decisions

is generally incompatible with the final judgment

rule embodied in 28 U.S.C. § 1291. McCarter v. Retirement

Plan for Dist. Managers of American Family Ins. Grp., 540

F.3d 649, 653 (7th Cir. 2008).

Given the narrow scope of the doctrine, pendent appellate jurisdiction is not available to Erste here. As we

decide in Abelesz v. Magyar Nemzeti Bank, we have

appellate jurisdiction over MNB’s appeal of the district

court’s denial of sovereign immunity, but we decline to

exercise pendent appellate jurisdiction over the other

issues that MNB itself seeks to raise. ___ F.3d at ___. Erste,

like MKB and OTP, enters the picture by arguing that

its appeal is inextricably intertwined with those of the

other defendants, especially MNB. In support, Erste

notes that (1) the complaint does not differentiate

among the defendants, (2) defendants’ motions to

dismiss incorporated one another’s grounds and arguments, (3) the district court addressed and rejected defendants’ motions to dismiss in one opinion, and

(4) defendants’ briefs to this court once again incorporate one another’s grounds and arguments. Erste

concludes by arguing that resolution of all of the

pending appeals simultaneously will promote judicial

economy.

 Erste’s reliance on judicial economy to justify pendent

party appellate jurisdiction is misplaced. The Supreme
Nos. 11-2940 & 11-2946 11

Erste points out that we exercised pendent party appellate 4

jurisdiction over the malpractice claim of one litigant that

was “entwined” with an indemnity claim of another litigant

properly before the court because doing so served the broader

purposes of efficiency and consistent resolution of the case.

Greenwell v. Aztar Indiana Gaming Corp., 268 F.3d 486, 491

(7th Cir. 2001). We have since noted that Swint rejected “judicial

economy” as an appropriate basis for an appellate court

to exercise pendent jurisdiction. McCarter, 540 F.3d at 653.

Court has rejected this justification and essentially

barred any pendent party appellate jurisdiction. See

Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)

(“[T]here is no ‘pendent party’ appellate jurisdiction of

the kind the Eleventh Circuit purported to exercise.”);

McCarter, 540 F.3d at 653 (“Swint itself held that a court

of appeals had erred in invoking pendent appellate

jurisdiction, because ‘judicial economy’ is no warrant

for disregarding the statutory final-decision rule.”).

4

Even if we were dealing with related issues raised by

one appellant, the varied issues raised do not concern

“the same single issue.” See Research Automation, 626 F.3d

at 977 (“Both the denial of the injunction and the

district court’s transfer order concern the same single

issue: whether this case should be litigated in Illinois or

in Virginia.”). Nor are they “the head and tail of the

same coin.” Hartigan, 861 F.2d at 166. While the issues

that Erste seeks to appeal are closely related to the issues

its co-defendants seek to appeal, that relationship

does not help because we do not have jurisdiction over

those issues, either. The pivotal point is that Erste’s
12 Nos. 11-2940 & 11-2946

issues are not so “inextricably intertwined” with MNB’s

sovereign immunity defense, which we have jurisdiction to consider, as to make it “practically indispensable”

that we address their merits at the same time. See

Swint, 514 U.S. at 51; Valders Stone & Marble, 909 F.2d at

262. Exercising pendent appellate jurisdiction over

Erste’s appeal would not be consistent with the statutes

and case law establishing the final-judgment rule.

II. Mandamus Jurisdiction

Without appellate jurisdiction over the issues that Erste

seeks to raise in No. 11-2940, that appeal must be dismissed. After objections were raised to appellate jurisdiction, Erste also filed a petition for a writ of mandamus

to compel the district court to dismiss the claims

against it. As a general rule, appellate courts are not in

the business of reviewing routine denials of motions

to dismiss — not by using pendent appellate jurisdiction,

not by using the collateral order doctrine, and certainly

not by issuing a writ of mandamus. The final judgment rule exists to help avoid piecemeal litigation and

encroachment on the special role district judges play

in managing ongoing litigation. See Mohawk Industries,

130 S. Ct. at 605. Furthermore, until a case is over,

litigants do not know whether an individual error

actually matters, and appellate courts usually benefit

from having an entire record in front of them.

Nevertheless, this court is authorized to issue a writ

of mandamus pursuant to the All Writs Act, 28 U.S.C.

§ 1651(a). Mandamus is a “drastic remedy traditionally
Nos. 11-2940 & 11-2946 13

used to confine a lower court to the lawful exercise of

its jurisdiction or to compel it to exercise its authority

when it has a duty to do so.” United States v. Lapi, 458

F.3d 555, 560-61 (7th Cir. 2006); see also Allied Chemical

Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (“Only exceptional circumstances, amounting to a judicial usurpation

of power, will justify the invocation of this extraordinary remedy.”). Three conditions must be satisfied

for the writ to issue. First, the party seeking the writ

must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without

the writ it will suffer irreparable harm. Second the

party seeking the writ must demonstrate a clear right to

the writ. Third, the issuing court must be satisfied that

issuing the writ is otherwise appropriate. See Cheney v.

U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380-81

(2004); In re Sandahl, 980 F.2d 1118, 1119 (7th Cir. 1992)

(“[T]he petitioner must show irreparable harm (or, what

amounts to the same thing, the lack of an adequate

remedy by way of direct appeal or otherwise)

and a clear right to the relief sought.”). Although these

demanding hurdles “are not insuperable,” see Cheney

542 U.S. at 381 (granting writ), we conclude that this

exacting standard is not satisfied here with respect to

the district court’s denial of Erste’s motion to dismiss

on political question grounds.

As we acknowledge in Abelesz v. OTP Bank, the nature

of this litigation is extraordinary, given its astronomical

financial stakes and appreciable foreign policy dimensions. ___ F.3d at ___. We also are aware of the importance of the case, at many levels, to the plaintiffs.
14 Nos. 11-2940 & 11-2946

In granting writs to MKB and OTP, however, we note

that it is the confluence of these specific factors, together

with the crystal clarity of the personal jurisdiction

issue, that makes granting writs of mandamus appropriate. In Erste’s case, we can assume that the same

financial stakes may present the same pressure to settle

if a class is certified, meaning the district court’s order

might not be effectively reviewable at the end of the

case. Such pressure is often present in class actions and

other big cases, however, and by itself does not warrant

issuance of a writ of mandamus. The problem for Erste

is that it has not shown a similarly clear and indisputable right to the issuance of the writ.

Erste’s petition for a writ of mandamus seems

to be based on the same political question doctrine argument it asked us to review under the collateral order

doctrine, but it is a little foggy on exactly why Erste has

a “clear and indisputable right” to the writ. Erste’s

petition makes two related arguments. The first is that

the district court abused its discretion by determining

that the U.S. government’s Statement of Interest would

apply to Erste and call for dismissal only if the plaintiffs

in this action are eligible for compensation under

the Austrian settlement fund, the GSF. Second, Erste

contends that the district court usurped the province of

the executive branch of the U.S. government by declining to defer to the Statement of Interest and refusing to dismiss the claims against Erste.

In its opinion denying Erste’s motions for reconsideration and certification of an interlocutory appeal pur-
Nos. 11-2940 & 11-2946 15

Erste also argues that the Second Circuit found that the 5

district court had “usurped power” by requiring “the German

legislature to make a finding of legal peace and to do so

before its summer recess.” 250 F.3d at 164. The Second Circuit

did find that the district court had “usurped power,” but

from the German legislature, not from the executive branch

of the U.S. government.

suant to 28 U.S.C. § 1292(b), the district court stated

that “based on the facts of this case at this juncture,

there remain questions as to whether the Government’s

Statement of Interest is applicable and as to whether

Plaintiffs are eligible for the funds referenced in the

Statement of Interest.” 807 F. Supp. 2d at 706. In so

ruling, Erste argues, the district court misinterpreted

the Statement of Interest and created a new condition

for dismissal when the filing of the Statement of Interest

should have been sufficient on its own to warrant

dismissal under the political question doctrine. Erste

asserts it was precisely such an attempt by a district

court to “renegotiate” the terms of the similar German

Foundation agreement to afford Holocaust victims

protections not provided thereunder that led the

Second Circuit to issue a writ of mandamus in In re Austrian and German Holocaust Litigation, 250 F.3d 156 (2d

Cir. 2001).5

In that case, all but one of the named plaintiffs in

a putative class action moved in the district court

for an order pursuant to Federal Rule of Civil Procedure 41(a) allowing them to dismiss their claims

against the German bank defendants voluntarily and
16 Nos. 11-2940 & 11-2946

with prejudice, but without prejudice to the rights of

any absent members of the putative class to assert their

own claims in any forum. 250 F.3d at 159. As in this

case, the U.S. government filed a Statement of Interest

urging dismissal. Despite the motions for voluntary

dismissal by plaintiffs, and without objection by the

defendants, the district court refused to dismiss

the moving plaintiffs’ claims. See id. at 159-60. After

receiving a motion for reconsideration, the district court

dismissed the case with two stipulations that were at

the heart of plaintiffs’ petition for a writ of mandamus.

The Second Circuit noted that it is “beyond the

authority of the courts to interfere with the Executive

Branch’s foreign policy judgments.” Id. at 164. Erste

argues that the district court’s “similar attempt” to condition Erste’s dismissal on whether the plaintiffs can be

compensated by the Austrian GSF is “similarly well

beyond the bounds of the District Court’s authority.”

The Second Circuit mentioned the executive branch’s

foreign policy interests, but did so in a discussion of

the separation of powers. 250 F.3d 163-64. It based its

decision to issue a writ of mandamus not on the U.S.

executive branch’s foreign policy interests, but rather

on two ways in which the district court order interfered

with the autonomy of the German legislature. First, the

district court seemed to be requiring the German legislature to make a finding of “legal peace” and to do so
Nos. 11-2940 & 11-2946 17

Under the terms of the agreement creating the German 6

Foundation, no funds could be distributed to claimants until

the attainment of “legal peace,” i.e., the final dismissal of

pending Holocaust-related litigation against German

companies in the U.S. courts and a commitment by the United

States to file in any pending or future Holocaust litigation

against Germany companies in a U.S. court a “Statement of

Interest” informing that court that the foreign policy interests

of the United States call for the German Foundation to be

recognized as the exclusive forum for the resolution of

such claims. See 250 F.3d at 159.

before its summer recess. Id. at 164. As the Second 6

Circuit rightly noted, “It would be beyond the authority of the court so to trammel on the prerogatives

of a legislature in the United States. Much less does

the court have the power to require such actions of the

legislature of a foreign sovereign.” 250 F.3d at 164.

Second, the district court had stated that the plaintiffs

could file a Rule 60(b) motion to vacate the dismissal

order if the criteria of the German Foundation were not

revised as contemplated in a declaration made by an

attorney involved in both the litigation and the negotiation

of the U.S.-German agreement. The Second Circuit noted

that even if the declaration gave such an assurance

(which the court found it did not), such a provision

took the court well beyond the bounds of its authority

because the criteria of the German Foundation

were governed under German law. The district court’s

language appeared to indicate that if the German legislature failed to change German law, the district court could
18 Nos. 11-2940 & 11-2946

or would vacate the dismissals. As the Second Circuit

again noted, “It is not the office of the court, however, to

decide what legislation should be enacted; and

the refusal of a legislature, within the scope of its own

authority, to enact or change a law is not a valid ground

for vacatur of a final judgment.” Id. at 165. The district

court’s seeming instructions to the German legislature were the judicial usurpation of power justifying

the extraordinary remedy of mandamus, not its

purported “renegotiation” of the German Foundation

agreement, as Erste urges.

Erste also argues that the U.S. government’s Statement

of Interest itself unconditionally requires immediate

dismissal. Erste supports this argument by citing In re

Assicurazioni Generali, S.p.A., 592 F.3d 113, 119-20 (2d Cir.

2010); Whiteman v. Dorotheum GmbH & Co KG, 431 F.3d

57, 59 (2d Cir. 2005); In re Nazi Era Cases Against German

Defendants Litigation, 129 F. Supp. 2d 370, 383, 386 (D.N.J.

2001); and Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C.

Cir. 2005). We disagree.

First, Erste simply mischaracterizes the Statement

of Interest. The Statement of Interest does not urge dismissal, full stop. Rather, it says that the United States

recommends dismissal of the claims against Erste on

any valid legal grounds. The Statement of Interest also

says that “the United States takes no position on the

merits of the underlying legal claims or arguments advanced by plaintiffs or by defendants . . . .” Stipulated J.A.

48. Furthermore, “The United States does not suggest that

its policy interests concerning the Fund in themselves provide
Nos. 11-2940 & 11-2946 19

an independent legal basis for dismissal, but will reinforce

the point that U.S. policy interests favor dismissal

on any valid legal ground.” Def.-Appellant’s Separate

Addendum 316 (emphasis added). The Supplemental

Statement of Interest, of which Erste urges us to take

judicial notice, reiterates that position: “In sum, while the

United States does not take a legal position on any claims or

defenses before the Court, the United States reiterates that

it would be in the foreign policy interests of the United

States for claims agains [Erste] to be dismissed on any

valid legal ground.” Supp. Statement of Interest 3, Sept. 30,

2011, ECF No. 35-2 (emphasis added). The Statement

of Interest deserves the respect of the district court and

this court, but the Statement of Interest does not itself

compel dismissal of the claims against Erste.

Neither Whiteman nor Hwang Geum Joo demonstrates

that Erste has a clear right to the issuance of a writ of

mandamus in this case. In Whiteman, when the government first presented its Statement of Interest to the

district court, it did not urge the district court to rest on

the foreign policy interest of the United States as an

independent legal basis for dismissal. When the case

reached the Second Circuit, however, the United States

no longer offered that qualification and instead asserted

that deference to the views of the executive branch on

the United States’s foreign policy interests supported

dismissal of the case. The Second Circuit found that

deference was appropriate “[i]n the circumstances presented in this case . . . .” 431 F.3d at 69. That is not the

situation in the present case. Rather, the Statement of

Interest specifically stated that it was not suggesting
20 Nos. 11-2940 & 11-2946

that the policy interests in themselves provide an independent legal basis for dismissal.

In Hwang Geum Joo, women from China, Taiwan, South

Korea, and the Philippines sued Japan alleging they

were abducted and forced into sexual slavery by the

Japanese Army prior to and during World War II. The

D.C. Circuit noted that in order to adjudicate plaintiffs’

claims, the court would have to resolve plaintiffs’

dispute with Japan over the meaning of the treaties

between Japan and Taiwan, South Korea, and China. 413

F.3d at 52. The question whether the war-related claims

of foreign nationals were extinguished when the governments of their countries entered into peace treaties

with Japan was one that concerned the United States

only with respect to her foreign relations. The court

thus determined that the case was nonjusticiable under

the political question doctrine. Id. at 52-53.

Furthermore, the fact that the Second Circuit and the

U.S. District Court for the District of New Jersey have

dismissed cases where the government submitted a

Statement of Interest also does not demonstrate that

Erste has a clear and indisputable right to mandamus in

this case. See Cheney, 542 U.S. at 381 (petitioner seeking

writ of mandamus must satisfy the burden of showing

that his right to issuance of the writ is clear and indisputable). These cases provide strong support for Erste’s

political question argument, but other circuits have

found the political question doctrine did not apply in

similar circumstances. See, e.g., Ungaro-Benages v. Dresdner

Bank AG, 379 F.3d 1227, 1235-41 (11th Cir. 2004) (holding
Nos. 11-2940 & 11-2946 21

that political question doctrine did not apply, despite

existence of German Foundation Agreement, but that

abstention under international comity doctrine was

appropriate). The district court may very well be wrong

on the political question issue, and that may be

sufficient for Erste to obtain a reversal on direct appeal.

We express no view on the question except to say that

the answer is not so clear that we should depart

from orderly appellate practice, which requires a

final judgment, and issue the extraordinary writ of mandamus. To issue a writ of mandamus under such circumstances “would undermine the settled limitations upon

the power of an appellate court to review interlocutory

orders.” Will v. United States, 389 U.S. 90, 98 n.6 (1967);

In re Sandahl, 980 F.2d at 1120 (“Mandamus, in contrast

[to a collateral-order appeal], is a discretionary writ;

and the standard of review is narrower than in an

ordinary appeal.”).

Finally, Erste makes much of the fact that plaintiffs’

complaint alleges Holocaust-era wrongdoing by Hungarian

banks while it is an Austrian bank, covered by the U.S.-

Austrian Agreement. Erste is a defendant in this

litigation, however, because in 2003 it acquired the Hungarian bank that, according to the complaint, had tainted

assets. On this point Erste makes two arguments. First,

Erste is the defendant and therefore, since Erste claims

an entitlement to legal peace under the U.S.-Austrian

agreements, we should not reach the issue of the subsidiary at all. Second, Erste argues that the U.S.-Austrian

agreements are different from the U.S.-German Agreement in an important way. The U.S.-German
22 Nos. 11-2940 & 11-2946

agreement defines who is a German subsidiary of a

German company in terms of whether the acquisition

had been completed as of the effective date of the U.S.-

German agreement. Austria, however, negotiated different language so that the U.S.-Austrian agreements

define “Austrian companies” to include “[e]nterprises

situated outside the borders of the present-day Republic

of Austria in which Austrian enterprises . . . at any

given time, had or have a direct or indirect financial participation of at least 25 percent.” Supp. Statement

of Interest n.1, Sept. 30, 2011, ECF No. 35-2, quoting U.S.-

Austrian Agreement (alterations and emphasis by

United States). This definition, Erste argues, is not tied

to the date of the creation of the General Settlement

Fund. Based on this definition, Erste argues that the

legal peace that it claims it is entitled to also extends

to its Hungarian subsidiary.

In oral argument we asked if Erste’s position is that

Austrian banks and other corporations that participated

in the Agreement and the Fund are in essence able

to “vaccinate” entities that face Holocaust liabilities in

other countries by acquiring them. Erste agreed with

this assessment, stating that “the issue has been

resolved, for better or worse, by an executive agreement.” This vaccination theory is extraordinary. Followed

to its logical conclusion, it would permit a covered Austrian entity to approach a foreign entity that found itself

facing Holocaust-era claims in a U.S. court, acquire

that foreign entity, and then assert that the U.S.-Austrian

agreement guarantees that foreign entity legal peace. To

be convinced that this is in fact what the U.S. govern-
Nos. 11-2940 & 11-2946 23

ment thinks the U.S.-Austrian agreements provide, we

would require a clearer and more persuasive statement than a conclusory and ambiguous footnote in

a supplemental Statement of Interest filed in an

unrelated case.

Conclusion

Because we lack appellate jurisdiction under either

the collateral order doctrine or pendent appellate jurisdiction, Erste’s appeal in No. 11-2940 is DISMISSED.

Because Erste has failed to demonstrate that it has a

clear and indisputable right to the issuance of a writ

of mandamus, its petition for a writ of mandamus in

No. 11-2946 is DENIED.

8-22-12