In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1887 

KAREN SCALIN, ROLAND CHERRIER, and JOSIANE PIQUARD, 

Plaintiffs-Appellants, 

v.

SOCIÉTÉ NATIONALE SNCF SA, formerly known as Société Nationale des Chemins de fer Français, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 3362 — Andrea R. Wood, Judge. 

____________________ 

ARGUED JANUARY 18, 2019 — DECIDED AUGUST 6, 2021 

____________________ 

Before EASTERBROOK and SCUDDER, Circuit Judges.

*

EASTERBROOK, Circuit Judge. During World War II the Nazi 

regime in Germany and nations under its domination killed 

millions of Jews. Plaintiffs in this suit are descendants of Jews 

* Associate Justice Barrett heard argument in this appeal while she was 

a member of this court. She did not participate in the decision, which is 

being rendered by a quorum of the panel. 28 U.S.C. §46(d).
2 No. 18-1887 

rounded up in France after it signed an armistice with Germany in 1940. According to the complaint, persons being sent 

to death camps were loaded on trains operated by the French 

national railroad, now known as Société Nationale SNCF. The 

passengers’ belongings were stolen by railroad workers and 

handed over to the Nazis. This suit seeks compensation for 

those thefts. 

One can imagine many possible responses, including the 

statute of limitations. World War II ended more than 75 years 

ago. Then there is the fact that the complaint does not allege 

any misconduct within the United States or by a U.S. national. 

The crimes were commi]ed in Europe, by Europeans, against 

Europeans. The only defendant, SNCF, operates its railroad 

in Europe and is not alleged to have commi]ed any wrong in 

the United States. Still, plaintiffs insist, victims and their descendants may use the U.S. courts to seek damages for foreign 

wrongs, when the allegations concern “rights in property 

taken in violation of international law”. 28 U.S.C. §1605(a)(3). 

This is the expropriation exception to the Foreign Sovereign 

Immunities Act (FSIA). The Act generally forbids courts of 

this nation to award damages against foreign sovereigns (including their instrumentalists, such as SNCF), but the expropriation exception is one of several exceptions to this norm. 

The district court dismissed the complaint, but not for any 

of these reasons. It held instead that plaintiffs must seek their 

remedy under a French administrative-claims system that has 

been devised to compensate victims of the Nazi occupation 

and the Vichy regime. 2018 U.S. Dist. LEXIS 48805 (N.D. Ill. 

Mar. 26, 2018). It relied on Abelesz v. Magyar Nemzeti Bank, 692 

F.3d 661 (7th Cir. 2012), and Fischer v. Magyar Államvasutak 

Zrt., 777 F.3d 847 (7th Cir. 2015), which conclude that, to the 
No. 18-1887 3 

extent foreign nationals can seek compensation in U.S. courts 

for property expropriated during a campaign of genocide, a 

federal tribunal may abstain in favor of compensation systems offered in the nation where the wrongs occurred. Abelesz

and Fischer sometimes referred to this as exhaustion of administrative remedies, but the opinions did not contemplate a follow-up in which a federal judge would superintend the decisions of the foreign tribunals. Comity-based abstention is 

therefore a more apt description. Whether the French system 

of compensation for wartime thefts justifies abstention was 

the principal subject briefed and argued in our appeal. 

Before the appeal was argued here, the D.C. Circuit disagreed with Abelesz and Fischer, holding that abstention is 

never proper. See Philipp v. Germany, 894 F.3d 406 (D.C. Cir. 

2018), rehearing en banc denied, 925 F.3d 1349 (2019); Simon 

v. Hungary, 911 F.3d 1172 (D.C. Cir. 2018). We deferred resolution of the appeal while the Supreme Court considered 

those cases. But the eventual opinion bypassed the possibility 

of abstention and held that the expropriation exception cannot be used by a person whose own nation took property. Germany v. Philipp, 141 S. Ct. 703 (2021). 

Shortly after the Justices released the opinion in Philipp, 

plaintiffs asked us to remand so that the district court could 

consider the possibility that one or more of the plaintiffs’ predecessors in interest was not a French citizen at the time of the 

thefts, either because the victim was a citizen of some other 

nation who had become a refugee in France or because the 

Vichy regime and the German forces that administered the 

occupied zone in France treated Jews as stateless. A remand 

for that purpose also would have posed the question whether 

the issue had been forfeited by plaintiffs’ delay in raising the 
4 No. 18-1887 

subject of the victims’ citizenship. And it would have left open 

the principal question briefed on appeal—whether international comity means that plaintiffs’ claims should be resolved 

in France. 

A remand also would have left open a subject that had 

been discussed at oral argument and in post-argument briefs: 

What is the plaintiffs’ claim in the first place? This is a tripleforeign suit: plaintiffs allege that nationals of a country other 

than the United States were injured by a foreign entity (SNCF) 

in a foreign nation (France). Plaintiffs say that one of their 

number is a U.S. citizen, but they do not contend that any of 

them was injured by wrongful acts in France. They describe 

themselves as the heirs (children or grandchildren) of the victims. The fact that a foreign national’s claim has been transferred to a U.S. citizen does not make it less a foreign claim. 

Suppose B accuses A of a tort (such as conversion) in Massachuse]s. B dies, and the claim passes to C as a ma]er of 

state law. May C then sue A in Illinois, where C lives but none 

of the wrongful conduct occurred? The answer is no. The 

proper location of a suit depends on the original acts, not on 

the plaintiff’s current residence. See, e.g., Walden v. Fiore, 571 

U.S. 277 (2014); Stafford v. Briggs, 444 U.S. 527 (1980). The principle is the same when the tort of conversion occurs in France 

rather than Massachuse]s. 

In light of these considerations, we told the parties that we 

would wait for the Supreme Court’s decision in Nestlé USA, 

Inc. v. Doe, 141 S. Ct. 1931 (2021), which might shed light on 

where triple-foreign suits may be litigated. Nestlé turned out 

to reiterate the proposition that the Alien Tort Statute, 28 

U.S.C. §1350, does not provide a remedy for triple-foreign 

events and does not apply when the wrongful acts are 
No. 18-1887 5 

unconnected to the United States or its citizens. See Kiobel v. 

Royal Dutch Petroleum Co., 569 U.S. 108 (2013). Nestlé adds that 

this rule cannot be sidestepped by asserting that a company 

in the United States aided and abe]ed foreign wrongs. Cf. 

Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (no 

jurisdiction in United States over triple-foreign securities offenses). Likewise it cannot be sidestepped by transferring to a 

U.S. citizen a foreign national’s claim against a foreign entity 

for injury suffered abroad. What’s more, Jesner v. Arab Bank 

PLC, 138 S. Ct. 1386 (2018), holds that a foreign corporation 

such as SNCF cannot be a defendant in a suit under §1350. 

Section 1350 therefore does not offer plaintiffs a claim for 

relief in federal court. Nor does state law. The problem is not 

simply that Illinois (the state in which the federal court sits, 

and to whose law it would look) has not created any claim 

against foreign nationals for foreign acts. It is also that no state 

possesses regulatory jurisdiction over such ma]ers. The Supreme Court made that point long ago in Bonaparte v. Tax 

Court, 104 U.S. 592, 594 (1881). See also BMW of North America, 

Inc. v. Gore, 517 U.S. 559, 571 (1996). 

In a memorandum filed after Nestlé, plaintiffs tell us that 

it, its predecessors, and all other triple-foreign decisions, are 

irrelevant. This is so, plaintiffs assert, because their claim rests 

on the expropriation exception to the Foreign Sovereign Immunities Act. To state this position is to expose the problem: 

How can a substantive claim rest on an exception to a statute 

that in the main denies jurisdiction to domestic courts? 

Section 1604 states the basic rule: “Subject to existing international agreements to which the United States is a party 

at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States 
6 No. 18-1887 

and of the States except as provided in sections 1605 to 1607 

of this chapter.” Section 1605(a)(3), the expropriation exception, is an exception to §1604. But that’s all. Section 1605(a)(3) 

does not create a substantive claim. A provision that a foreign 

nation lacks sovereign immunity to a particular claim leaves 

a plaintiff in need of both jurisdiction and of a substantive entitlement to relief. This is the norm in domestic law. A waiver 

of sovereign immunity does not create a substantive claim; 

the plaintiff still needs jurisdiction and a statute authorizing 

relief. See, e.g., United States v. Navajo Nation, 556 U.S. 287, 290 

(2009). Nothing in the Foreign Sovereign Immunities Act implies a different approach. 

Jurisdiction in a suit such as this comes from 28 U.S.C. 

§1330(a), which grants jurisdiction of suits against foreign nations whenever the Foreign Sovereign Immunities Act permits. This allows litigation even with respect to acts that occurred during or shortly after World War II (and thus before 

the Act was adopted). See Austria v. Altmann, 541 U.S. 677 

(2004). But the need for a substantive claim remains. To repeat: That is the norm for domestic waivers of sovereign immunity (see Navajo Nation). The Foreign Sovereign Immunities Act is about, well, sovereign immunity. All of the Supreme Court’s decisions about the Act treat §1605 as a jurisdictional provision, not as a source of substantive rights. See, 

e.g., Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 

(1983); Venezuela v. Helmerich & Payne International Drilling Co., 

137 S. Ct. 1312, 1318–19 (2017). 

The expropriation exception to §1604 sits near 28 U.S.C. 

§1605A(c), which does create a substantive claim for injuries 

a]ributable to terrorism. See Opati v. Sudan, 140 S. Ct. 1601 

(2020). Section 1605A(c) begins: “A foreign state that is or was 
No. 18-1887 7 

a state sponsor of terrorism as described in subsection 

(a)(2)(A)(i), and any official, employee, or agent of that foreign 

state while acting within the scope of his or her office, employment, or agency, shall be liable ... .” The difference in the 

language of §1605(a)(3) and §1605A(c) is stark, and a court 

should not read the jurisdictional words of the former to do 

the substantive work of the la]er. 

Section 1350 is the only general grant of authority for the 

federal courts to provide a remedy in an alien’s tort action, yet 

plaintiffs concede that it does not support their suit. For many 

victims of expropriation, state law could supply the claim for 

relief. A citizen of the United States who invests in foreign 

property through a domestic contract may have a claim based 

on that contract if a foreign nation expropriates the property. 

For other takings a federal statute also may provide relief, as 

§1605A(c) does for terrorism. Many if not most of the expropriation claims litigated under §1605(a)(3) have a strong domestic link that may support both jurisdiction and a right of 

action in this nation. Perhaps federal common law, incorporating customary international law, would supply a substantive claim when the expropriation has a link to the United 

States, but plaintiffs have not invoked federal common law. 

(They mention international law but do not contend that it has 

been incorporated into the common law of the United States.) 

Sometimes the expropriated property, or assets traceable to it, 

is present in the United States, so that an alien’s claim under 

§1350 (or a citizen’s claim under state law) could proceed. But 

triple-foreign claims such as this suit lack a domestic link. 

As far as we can see, neither the Supreme Court nor any 

court of appeals has treated §1605(a)(3) as creating a substantive claim. We do not try to fight against the statute’s 
8 No. 18-1887 

jurisdictional language, so we hold that §1605(a)(3) is not substantive. Plaintiffs need a substantive claim for relief and have 

not pointed to one. Their complaint mentions conversion and 

unjust enrichment but does not identify a source of law, and 

we have explained why federal common law, state law, and 

§1350 all fall short in a triple-foreign suit such as this. Plaintiffs have only the language of the expropriation exception, 

which is not enough. 

If plaintiffs had articulated a substantive claim, then we 

would agree with the district court that the remedies available 

in France justify abstention. The United States filed a brief articulating the view of the State Department, which agrees 

with the district court that international comity calls for abstention. We are reluctant to authorize litigation that calls into 

question the relations between the United States and one of 

its allies—for, as both the district court and the amicus brief 

observe, the French system was adopted in 1999 following 

consultation with the United States and other nations that had 

been allied against the Nazis during World War II. Cf. Levin 

v. Commerce Energy, Inc., 560 U.S. 413 (2010) (discussing abstention in the interest of comity). 

A system in which a single district judge could countermand the decisions of multiple nations about what remedies 

are appropriate for wartime injuries inflicted in Europe would 

be unfortunate. The Executive Branch, not the Judicial Branch, 

is responsible for foreign relations. One can only imagine the 

fury in this nation if a French judge were to prescribe how 

much the United States must pay, and to whom, for the removal of Japanese Americans from the West Coast during 

World War II or the Trail of Tears in the nineteenth century. 

Each nation can decide for itself (unilaterally or through 
No. 18-1887 9 

treaties) whether reparations for long-past injuries are appropriate. But because plaintiffs lack a substantive claim in this 

triple-foreign suit, it is unnecessary to say more about international comity. 

AFFIRMED