Case 1:10-cv BAH Document 22 Filed 04/08/11 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:10-cv BAH Document 22 Filed 04/08/11 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROSALIE SIMON, et al. Plaintiffs, vs. THE REPUBLIC OF HUNGARY, MAGYAR ÁLLAMVASUTAK Zrt., and RAIL CARGO HUNGARIA Zrt., Case No.: 1:10-cv BAH Hon. Beryl A. Howell Defendants. THE REPUBLIC OF HUNGARY S AND MAGYAR ÁLLAMVASUTAK ZRT. S MOTION TO DISMISS THE FIRST AMENDED CLASS ACTION COMPLAINT The Republic of Hungary ( Hungary ) and Magyar Államvasutak Zrt. (MÁV), by and through their attorneys, hereby move to dismiss the above-captioned action against them. The grounds for this Motion are set forth in the accompanying Memorandum of Law. REQUEST FOR ORAL HEARING Pursuant to Rule 7(f) of the Rules of the United States District Court for the District of Columbia, Hungary and MÁV respectfully request an oral hearing on this motion. 1

2 Case 1:10-cv BAH Document 22 Filed 04/08/11 Page 2 of 3 Dated: April 8, /s/ Michael J. Lyle Michael J. Lyle (D.C. Bar No ) Meghan A. McCaffrey (application pending) WEIL, GOTSHAL & MANGES LLP 1300 Eye Street, N.W. Suite 900 Washington, D.C Telephone: (202) Facsimile: (202) Konrad L. Cailteux (admitted pro hac vice) Brian Keith Gibson (admitted pro hac vice) Jeremy T. Grabill (admitted pro hac vice) WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Attorneys for The Republic of Hungary and Magyar Államvasutak Zrt. 2

3 Case 1:10-cv BAH Document 22 Filed 04/08/11 Page 3 of 3 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was filed electronically with the Clerk of the Court using CM/ECF on April 8, As such, the foregoing was served electronically upon the following: /s/ Michael J. Lyle Michael J. Lyle 3

4 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 1 of 46 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROSALIE SIMON, et al. Plaintiffs, vs. THE REPUBLIC OF HUNGARY, MAGYAR ÁLLAMVASUTAK Zrt., and RAIL CARGO HUNGARIA Zrt., Case No.: 1:10-cv BAH Hon. Beryl A. Howell Defendants. THE REPUBLIC OF HUNGARY S AND MAGYAR ÁLLAMVASUTAK ZRT. S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS THE FIRST AMENDED CLASS ACTION COMPLAINT

5 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 2 of 46 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 FACTUAL BACKGROUND... 2 A. The Complaint... 2 B. Post-War Treaties, Agreements, and Compensation Schemes... 3 ARGUMENT... 5 I. HUNGARY AND MÁV ARE ENTITLED TO SOVEREIGN IMMUNITY, REQUIRING DISMISSAL OF THIS SUIT... 6 A. The Expropriation Exception 28 U.S.C. 1605(a)(3) Does Not Apply... 7 B. The Commercial Activity Exception 28 U.S.C. 1605(a)(2) Does Not Apply... 9 II. THE PLAINTIFFS CLAIMS PRESENT NON-JUSTICIABLE POLITICAL QUESTIONS III. PLAINTIFFS CLAIMS SHOULD ALSO BE DISMISSED UNDER THE DOCTRINE OF FORUM NON CONVENIENS, AS HUNGARY IS THE PROPER FORUM TO RESOLVE THE INSTANT DISPUTE A. Hungary Provides An Adequate Alternative Forum For Resolution Of Plaintiffs Claims B. Private And Public Factors Weigh Heavily In Favor Of Adjudicating Plaintiffs Claims In Hungary, Not The United States CONCLUSION i

6 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 3 of 46 TABLE OF AUTHORITIES CASES Page(s) Agudas Casidei Chabad v. Russian Fed n, 528 F.3d 934 (D.C. Cir. 2008)...25 Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250 (7th Cir. 1983)...11 Alfadda v. Fenn, 159 F.3d 41 (2d Cir. 1998)...28 Alperin v. Vatican Bank, 242 F. Supp. 2d 686 (N.D. Cal. 2003)...23 Altmann v. Fed. Republic of Austria, 317 F.3d 954 (9th Cir. 2002)...8 *Anderman v. Fed. Republic of Austria, 256 F. Supp. 2d , 23 Antolok v. United States, 873 F.2d 369 (D.C. Cir. 1989)...24 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989)...6 Ashcroft v. Iqbal, 129 S.Ct (2009)...5, 9 Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672 (D.C. Cir. 2009)...5 *Baker v. Carr, 369 U.S. 186 (1962)...16, 17, 23 Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824 (5th Cir. 1993)...33 Beekmans v. J.P.Morgan & Co., 945 F. Supp. 90 (S.D.N.Y. 1996)...28 Beg v. Islamic Republic of Pakistan, 353 F.3d 1323 (11th Cir. 2003)...11 ii

7 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 4 of 46 Belk v. United States, 858 F.2d 706 (Fed. Cir. 1988)...17, 18 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2004)...5, 9, 12 Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220 (3d Cir. 1995)...32 Blanco v. Banco Indus. De Venezuela, S.A., 997 F.2d 974 (2d Cir. 1993)...29 BPA Int l, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73 (D.D.C. 2003)...27 *Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999)... passim Butcher v. Gerber Prods. Co., No. 98 Civ. 1819, 1998 WL (S.D.N.Y. Aug. 3, 1998)...27 Capital Currency Exch., N.V. v. Nat l Westminister Bank PLC, 155 F.3d 603 (2d Cir. 1999)...28 Carey v. Nat l Oil Corp., 453 F. Supp (S.D.N.Y. 1978)...11 Chuidian v. Philippine Nat l Bank, 912 F.2d 1095 (9th Cir. 1990)...8 Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.D.C. 1994)...7 Crist v. Republic of Turkey, 995 F. Supp. 5 (D.D.C. 1998)...9 Cruz v. Maritime Co. of Philippines, 549 F. Supp. 285 (S.D.N.Y. 1982), aff d, 702 F.2d 47 (2d Cir. 1983)...34 Dahl v. United Tech. Corp., 632 F.2d 1027 (3d Cir. 1980)...30, 32 Dames & Moore v. Regan, 453 U.S. 654 (1981)...15, 17 Deutsch v. Turner Corp., No. CV SVW(AJWX), 2000 WL (C.D. Cal. Aug. 25, 2000)...22 iii

8 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 5 of 46 F. Palicio y Compania, S.A. v. Brush, 256 F. Supp. 481 (S.D.N.Y. 1966)...8 Faber-Plast v. Kleinert, 997 F. Supp. 846 (E.D. Mich. 1998)...28, 33, 34 Freiberg v. Muskie, 651 F.2d 608 (8th Cir. 1981)...24 Freund v. Republic of France, 592 F. Supp. 2d 540 (S.D.N.Y. 2008)...9 *Frumkin v. JA Jones, Inc., 129 F. Supp. 2d 370 (D.N.J. 2001)...22 Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876 (5th Cir. 1987)...33 *Gould v. Nat l Life Ins. Co., 990 F. Supp (M.D. Ala. 1998)...27, 28 Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9 (D.D.C. 2001)...6 Gschwind v. Cessna Aircraft Co., 161 F.3d 602 (10th Cir. 1998), cert. denied, 526 U.S (1999)...33 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)...25 Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31 (D.C. 1989)...31 In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370 (D.N.J. 2001)...13, 23 In re Nazi Era Cases Against German Defendants Litig., 198 F.R.D. 429 (D.N.J. 2000)...22 In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d 397 (S.D.N.Y. 1998)...27 In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998)...25 In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809 F.2d 195 (2d Cir. 1987)...28 iv

9 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 6 of 46 *Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999)...12, 21, 22 Jackson v. American Univ., in Cairo, 52 Fed. App x 518 (D.C. Cir. 2002)...28 Jaffe v. Pallotta TeamWorks, 374 F.3d 1223 (D.C. Cir. 1999)...31 Jauss v. Lehman Bros., Inc., No. 94 Civ. 2921, 1995 WL 4023 (S.D.N.Y. Jan. 5, 1995)...29 Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005)...6 Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005)...16 Kamel v. Hill-Rom, 108 F.3d 799 (7th Cir. 1997)...30 *Kelberine v. Societe Internationale, Etc., 363 F.2d 989 (D.C. Cir. 1966)...13, 16, 18, 19 Koster v. (American) Lumbermens Mut. Cas. Co.: 330 U.S. 518 (1947)...27 Kultur Int l Films Ltd. v. Covent Garden Pioneer, FSP., Ltd., 860 F. Supp (D.N.J. 1994)...30 Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764 (9th Cir. 1991)...29 Mackley v. Gruner & Jahr A.G. & Co., No. 93 Civ. 6521, 1995 WL (S.D.N.Y. July 13, 1995)...28 Magnin v. Teledyne Cont l Motors, 91 F.3d 1424 (11th Cir. 1996)...30 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)...16 Mars, Inc. v. Kabushiki-Kaisha Nippon Conlux, 24 F.3d 1368 (Fed. Cir. 1994)...29 Martin v. Vogler, No. 93 C 3870, 1993 WL (N.D. Ill. Nov. 9, 1993)...30 v

10 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 7 of 46 MBI Group, Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568 (D.C. Cir. 2010)...25 McDonald s Corp. v. Bukele, 960 F. Supp (N.D. Ill. 1997)...30 Mediterranean Golf, Inc. v. Hirsh, 783 F. Supp. 835 (D.N.J. 1991)...30, 33 Millicom Int l Cellular v. Republic of Costa Rica, 995 F. Supp. 14 (D.D.C. 1998)...8 Moscovits v. Magyar Cukor Rt., No. 00 Civ (VM), 2001 WL (S.D.N.Y. July 9, 2001) Nemariam v. Fed. Democratic Republic of Ethiopia, 491 F.3d 470 (D.C. Cir. 2007)...7 *Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196 (5th Cir. 1978)...18, 24 *Oetjen v. Central Leather, Co., 246 U.S. 297 (1918)...12, 16, 17, 18 *Oveissi v. Islamic Repub. of Iran, 573 F.3d 835 (D.D.C. 2009)...31 Pain v. United Techs. Corp., 637 F.2d 775 (D.C. Cir. 1980)...34 Papasan v. Allain, 478 U.S. 265 (1986)...5 Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36 (D.C. Cir. 2000)...6 *Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)... passim Postol v. El-Al Israel Airlines, Ltd., 690 F. Supp (S.D.N.Y. 1988)...34 *Princz v. Fed. Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994)...11, 19, 20 vi

11 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 8 of 46 Princz v. Fed. Republic of Germany, 871 F. Supp. 18 (D.D.C. 1994)...20 Proyectos Orchimex de Costa Rica, S.A. v. E.I. DuPont de Nemours & Co., 896 F. Supp (M.D. Fla. 1995)...34 *Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992)...10, 11, 12 Republic of Austria v. Altmann, 541 U.S. 677 (2004)...6 *Rong v. Liaoning Provincial Gov t, 362 F. Supp. 2d 83 (D.D.C. 2005)...8 Rosner v. United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002)...9 Saudi Arabia v. Nelson, 507 U.S. 349 (1993)...6 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)...24 Scottish Air Int l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224 (2d Cir. 1996)...32 Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992)...8 Sinochem Int l Co., Ltd. v. Malaysia Int l Shipping Corp., 549 U.S. 422 (2007)...25 Smith v. Reagan, 844 F.2d 195 (4th Cir.1988)...24 Sparrow v. United Air Lines, 216 F.3d 1111 (D.C. Cir. 2000)...5 Stromberg v. Marriot Int l, Inc., 474 F. Supp. 2d 57 (D.D.C. 2007)...28 Trudeau v. Fed. Trade Comm n, 456 F.3d 178 (D.C. Cir. 2006)...5 U.S. Ecology, Inc. v. U.S. Dep t of Interior, 231 F.3d 20 (D.C. Cir. 2000)...6 vii

12 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 9 of 46 United States v. Martinez, 904 F.2d 601 (11th Cir. 1990)...17 United States v. Philip Morris USA, Inc., No. Civ.A (GK), 2004 WL (D.D.C. Aug. 2, 2004)...3 United States v. Pink, 315 U.S. 203 (1942)...17 United World Trade, Inc. v. Mangyshlakneft Oil Prod. Ass n, 33 F.3d 1232 (10th Cir. 1994)...11, 12 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983)...24 Ware v. Hylton, 3 U.S. 199 (1796)...16 Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57 (2d Cir. 2005)...17 Younis v. American Univ. in Cairo, 30 F. Supp.2d 390 (S.D.N.Y. 1998)...32 Zinsler v. Marriott Corp., 605 F. Supp (D. Md. 1985)...34 STATUTES 61 Stat , 4, 5 28 U.S.C. 1603(a) U.S.C. 1603(d) U.S.C U.S.C. 1605(a)(2)...6, 7, 9, U.S.C. 1605(a)(3)...6, 7, 9 28 U.S.C. 1605(a)(5)...7 viii

13 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 10 of 46 OTHER AUTHORITIES Fed. R. Evid Fed. R. Civ. P. 12(b)(1)...5 RESTATEMENT (SECOND) OF CONFLICT OF LAWS 145(2) (1971)...31 ix

14 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 11 of 46 The Republic of Hungary ( Hungary ) and Magyar Államvasutak Zrt. (MÁV) submit this Memorandum of Law in Support of Their Motion to Dismiss the First Amended Class Action Complaint (the Complaint ) filed by Hungarian Holocaust survivors ( Plaintiffs ). PRELIMINARY STATEMENT Few periods of civilization engender as much animosity, disbelief, and disgust as the treatment of Jewish persons by the Nazi regime during World War II. The Nazi atrocities committed against the Jewish people has been well documented and it is unquestioned that Hungarian Jews were among the devastated populations. The question presented by this motion, though, is not whether the wrongs inflicted upon Plaintiffs and millions of others were wrongful they clearly were. 1 Rather, the question presented is whether private parties may bring civil damage actions for events that took place in Europe during World War II against sovereign entities that had been integrated into the German war machine by the Nazi Regime that conceived and organized these crimes. For several fundamental reasons, the answer to that question is no. First, as Plaintiffs admit, both Hungary and MÁV are sovereign entities and, under the Foreign Sovereign Immunities Act ( FSIA ), are presumptively immune from the jurisdiction of this Court. Further, Plaintiffs cannot establish that an exception to the FSIA is applicable to this case. Thus, the Plaintiffs claims against Hungary and MÁV should be dismissed because the Court lacks subject matter jurisdiction over them. Second, the Complaint should be dismissed because its claims present a non-justiciable political question. War reparations have historically been resolved through state-to-state negotiations rather than the courts. Throughout the years following World War II, the United 1 Nothing said in the defense of this lawsuit can, or should, diminish the world s condemnation of Nazi wrongdoing during World War II. 1

15 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 12 of 46 States, in connection with allied nations, entered into bi-lateral negotiations and agreements with a number of European countries, including Hungary, regarding reparations for the various victims of World War II. In no situation is this historical precedent more prevalent than with respect to reparations for the various atrocities committed against Jewish people during the Holocaust. Any attempt by the Court to review and pass judgment on those negotiations would impinge on the foreign policy interests of the United States and, therefore, present nonjusticiable questions under the political question doctrine. Finally, the Complaint should be dismissed under the doctrine of forum non conveniens. This case has nothing to do with the District of Columbia or the United States. Rather, all of the conduct at issue took place in Hungary over sixty years ago, the documents relevant to the Plaintiffs claims are in Hungary and in the Hungarian language, and the Plaintiffs claims are likely governed by Hungarian law. In short, Hungary has a far stronger interest in addressing and resolving claims relating to the mistreatment of its citizens during the Holocaust. Thus, Hungary, not the United States, is the proper forum for the resolution of any disputes relating to the treatment of Hungarian Jews during the Holocaust. FACTUAL BACKGROUND A. The Complaint. Plaintiffs filed this putative class action on October 20, They filed a First Amended Class Action Complaint on March 11, See Rec. Docs. 1 & 21. Plaintiffs allege that Hungary, MÁV, and Rail Cargo Hungaria Zrt. orchestrated, collaborated and participated in the confiscation of the personal possessions of their Hungarian Jewish victims and their transportation by train to the killing fields and death camps of Nazi Germany-occupied Poland 2

16 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 13 of 46 and the Ukraine. Am. Compl Plaintiffs seek to represent a class of (a) all surviving Jewish victims of the Holocaust, whether presently American citizens or aliens, who were stripped of personal property by any of the defendants, and/or transported by rail via Defendant MÁV or Defendant MÁV Cargo to locales where they were placed or maintained in the custody of the German, or other hostile, authorities and (b) the heirs (whether American citizens or aliens) and open estates (wherever located) of the deceased Jewish victims of the Holocaust who at any time between September 1, 1939, and May 8, 1945, were stripped of personal property by any of the defendants, and/or transported by rail via Defendant MÁV or Defendant MÁV Cargo to locales where they were placed or maintained in the custody of the German, or other hostile, authorities and died while in captivity or thereafter. Am. Compl Plaintiffs assert nineteen separate causes of action and request a variety of remedies, including an accounting, compensatory damages, punitive damages, a declaratory judgment, a permanent injunction, costs, attorneys fees, and expenses. See Am. Compl Plaintiffs concede that Hungary is a sovereign nation, and that MÁV is an agency or instrumentality of Hungary. See Am. Compl. 82, 85. B. Post-War Treaties, Agreements, and Compensation Schemes. World War II ended in Europe in May In February 1947, Hungary signed the Treaty of Paris with the Allies. See Treaty of Peace with Hungary, Feb. 10, 1947, 61 Stat (the 1947 Peace Treaty ). 4 Pursuant to Article 26(2) of the 1947 Peace Treaty, Hungary agreed to restore[] free of all encumbrances and charges all property, rights and interests that had come under Hungarian control as a result of the war. Id. at Art. 26(2). Moreover, in Article 2 This motion is only filed on behalf of Hungary and MÁV. Rail Cargo Hungaria Zrt. has not appeared in this action and the Court has entered a default against Rail Cargo. See Rec. Doc It is well settled that this court may take judicial notice of historical facts such as those surrounding World War II, many of which have been well documented and are not in dispute. See United States v. Philip Morris USA, Inc., No. Civ.A (GK), 2004 WL , at *1 (D.D.C. Aug. 2, 2004) (noting that [j]udicial notice may be taken of historical, political, or statistical facts, or any other facts that are verifiable with certainty ); see also Fed. R. Evid A copy of the 1947 Peace Treaty is attached as Ex. 1 to the April 8, 2011 Declaration of Meghan A. McCaffrey ( McCaffrey Decl. ). 3

17 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 14 of 46 27(1), Hungary agreed that in all cases where the property, legal rights or interests in Hungary of persons under Hungarian jurisdiction have, since 1 September 1939, been the subject of measures of sequestration, confiscation or control on account of the racial origin or religion of such persons, the said property, legal rights or interests shall be restored together with their accessories or, if restoration is impossible, that fair compensation shall be made therefore. Id. at Art. 27(1). In 1973, the Executive branch of the U.S. Government and the Government of the Hungarian People s Republic entered into a broad agreement to resolve all taken property claims suffered by U.S. nationals prior to 1973 and to extinguish any future claims against Hungary. 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, T.I.A.S. 7569, 938 U.N.T.S. 167 ( 1973 Agreement ). 5 Pursuant to Article 2 of the 1973 Agreement, the claims which are being settled and discharged by this Agreement, are claims of nationals and the Government of the United States for: (1) property, rights and interests affected by Hungarian measures of nationalization, compulsory liquidation, expropriation, or other taking on or before the date of this Agreement. Id. at Art. 2. In the 1990s, after the fall of the Communist regime in Hungary, the Hungarian government, pursuant to its obligations under the 1947 Peace Treaty, enacted various compensation schemes designed to further compensate Hungarian citizens (current and former) for losses they suffered after the beginning of World War II in See Declaration of László Nagy ( Nagy Decl.) at These various compensation schemes were intended to compensate the Jewish population for the wrongful taking of their property during and after 5 A copy of the 1973 Agreement is attached as Ex. 2 to the McCaffrey Decl. 4

18 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 15 of 46 World War II, as well as for personal injury during this time frame. Id. Additionally, the Hungarian Government established a foundation to which it transferred real property that had been wrongfully taken from Jewish persons, but could not be returned to the rightful owner. Id. at 26. For a discussion of the compensation schemes enacted by Hungary during this time period, see id. at 23-26, 28-29, 31. Additionally, in 1993, the Hungarian Constitutional Court determined that Hungary had not fully complied with its obligations under the 1947 Peace Treaty, causing Hungary to put in place mechanisms to ensure compliance. Id. at ARGUMENT Although a complaint s factual allegations must be presumed true, and the plaintiff must be given every favorable inference that may be drawn from the allegations of fact, Sparrow v. United Air Lines, 216 F.3d 1111, 1113 (D.C. Cir. 2000), a court need not accept as true a legal conclusion couched as a factual allegation, nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, the allegations in a complaint must raise a right to relief above the speculative level, and must be, at a minimum, plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2004); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (noting that [w]here a complaint pleads facts that are merely consistent with a defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief ) (internal quotations and citations omitted); Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 688 (D.C. Cir. 2009). Federal Rule of Civil Procedure 12(b)(1) requires the party seeking to invoke the 6 The Hungarian Constitutional Court is the supreme organ for the protection of the Constitution of the Republic of Hungary, and it is charged with reviewing the constitutionality of laws and protecting the constitutional order and fundamental rights established in the Constitution. The Constitutional Court does not decide traditional legal disputes. For further information about the Constitutional Court, see (last visited Apr. 7, 2011). 5

19 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 16 of 46 jurisdiction of a federal court to bear the burden of establishing that the court has jurisdiction over the case. See, e.g., U.S. Ecology, Inc. v. U.S. Dep t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Moreover, a court is free to consider materials outside the allegations contained in the complaint in determining whether it has jurisdiction to hear a case. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, (D.C. Cir. 2005). I. HUNGARY AND MÁV ARE ENTITLED TO SOVEREIGN IMMUNITY, REQUIRING DISMISSAL OF THIS SUIT. Under the FSIA, a foreign state is presumptively immune from the jurisdiction of United States courts. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). 7 As Plaintiffs concede, Hungary is a sovereign nation, Am. Compl. 82, and MÁV is an agency or instrumentality of the Republic of Hungary for purposes of the Foreign Sovereign Immunities Act, Am. Compl Accordingly, unless Plaintiffs can satisfy an exception to the FSIA, Hungary and MÁV are immune from the jurisdiction of the courts of the United States. 28 U.S.C. 1604; see 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 is complete: The district court lacks subject matter jurisdiction over the plaintiff s case. ); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (holding that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court ). Plaintiffs do not identify which FSIA exceptions they seek to invoke. The allegations in the Amended Complaint, though, appear to suggest that Plaintiffs are relying on the 7 The FSIA applies retroactively to conduct occurring before its enactment. See Republic of Austria v. Altmann, 541 U.S. 677, 697 (2004). 8 The FSIA defines the term foreign state to include a state s political subdivisions, agencies, and instrumentalities. 28 U.S.C. 1603(a). MÁV is a company owned 100% by Hungary. See Nagy Decl. at 10 n.12. 6

20 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 17 of 46 expropriation and commercial activity exceptions at 28 U.S.C. 1605(a)(2)-(3): Defendant Hungary engages in an ongoing course of commercial activity throughout, and maintains property in, the United States, that has been exchanged for the property it stole from the plaintiffs herein. That property is owned and operated by MÁV and/or other agencies and instrumentalities of Hungary that are engaged in commercial activity in the United States. Alternatively, that property is present in the United States in connection with commercial activity carried on by Hungary within the United States. Am. Compl MÁV engages in an ongoing course of commercial activity in the United States. More specifically, and without limitation, MÁV engages in commercial operations within the United States, including maintenance of an agency for selling tickets, booking reservations, and conducting similar business in the United States. MÁV owns and/or operates property and property exchanged for property that it stole from Hungarian Jewish deportees. Am. Compl. 85. These allegations, though, do not support the application of either 1605(a)(2) or (a)(3) in this case. 9 A. The Expropriation Exception 28 U.S.C. 1605(a)(3) Does Not Apply. Under the expropriation exception, a foreign state and its instrumentalities are not immune where: 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. 28 U.S.C. 1605(a)(3). For several reasons, this exception is not applicable here. First, for this exception to apply, Plaintiffs must have had rights in property that were taken in violation of international law. Nemariam v. Fed. Democratic Republic of Ethiopia, 9 The FSIA tort exception for personal injury or death, 28 U.S.C. 1605(a)(5), would not apply to this case. Plaintiffs have not alleged that any personal injury or death occurred in the United States as required by that exception. See 28 U.S.C. 1605(a)(5); Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 168 (D.D.C. 1994) (holding that noncommercial tort exception to FSIA did not apply where injuries complained of took place entirely in Lebanon). Rather, any personal injury or wrongful death is alleged to have occurred in Europe during World War II. See, e.g., Am. Compl

21 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 18 of F.3d 470, 475 (D.C. Cir. 2007) reh g denied. However, the [e]xpropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law. Rong v. Liaoning Provincial Gov t, 362 F. Supp. 2d 83, 101 (D.D.C. 2005) (quoting Chuidian v. Philippine Nat l Bank, 912 F.2d 1095, 1105 (9th Cir. 1990)). [C]onfiscations by a state of the property of its own nationals, no matter how flagrant and regardless of whether compensation has been provided, do not constitute violations of international law. Id. at 102 (quoting F. Palicio y Compania, S.A. v. Brush, 256 F. Supp. 481, 487 (S.D.N.Y. 1966)); see also Altmann v. Fed. Republic of Austria, 317 F.3d 954, 968 (9th Cir. 2002) (holding that under the expropriation exception to the FSIA, the plaintiff cannot be a citizen of the defendant county at the time of the expropriation, because [e]xpropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law ) (quoting Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir. 1992)). Although Plaintiffs allege that they are now citizens of the United States, Canada, Israel, and Australia, they bring suit against defendants for the alleged expropriation and/or nationalization of property owned by Hungarian Jewish victims. Am. Compl. 3. All of the Plaintiffs were Hungarian nationals at the time of the events in question. Am. Compl. 10, 14, 21, 27, 38, 40, 48, 64, 72, 80. Thus, because the alleged expropriation and/or nationalization by Hungary of its own nationals property does not violate international law, the expropriation exception does not apply. 10 Second, Plaintiffs have failed to adequately allege that any taken property (or any property exchanged for such taken property) is either present in the United States in connection with a commercial activity carried on in the United States by the foreign state or owned or 10 Moreover, the alleged expropriation and/or nationalization cannot be considered a violation of international law because Plaintiffs have not shown that they have pursued and exhausted domestic remedies in the foreign state that is alleged to have caused the injury. Millicom Int l Cellular v. Republic of Costa Rica, 995 F. Supp. 14, 23 (D.D.C. 1998). 8

22 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 19 of 46 operated by an agency or instrumentality of Hungary. 28 U.S.C. 1605(a)(3). As an initial matter, Plaintiffs allege that the allegedly taken property was transferred to the Nazi Government during World War II. Am. Compl Thus, it would appear that Plaintiffs concede that Hungary and MÁV do not have the property allegedly taken from Plaintiffs. 11 Regardless, Plaintiffs conclusory allegations run afoul of the U.S. Supreme Court s holdings in Twombly and Iqbal. See Am. Compl. 83 (making bare bone allegation that Hungary maintains property in the United States that has been exchanged for the property it stole from the plaintiffs herein ); Am. Compl. 85 (making bare bone allegation that MÁV owns and/or operates property and property exchanged from property that it stole from Hungarian Jewish deportees ). These are nothing more than bald assertions and Plaintiffs have failed to set forth any facts in support of such assertions. Crist v. Republic of Turkey, 995 F. Supp. 5, 11 (D.D.C. 1998); see Freund v. Republic of France, 592 F. Supp. 2d 540, (S.D.N.Y. 2008) (finding that plaintiffs conclusory allegations that defendant took property sixty years ago did not justify inference that defendant still owned or operated such property today). Therefore, the expropriation exception does not apply to this case. B. The Commercial Activity Exception 28 U.S.C. 1605(a)(2) Does Not Apply. Under the commercial activity exception, a foreign state and its instrumentalities are not immune where: the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the 11 This apparent concession is supported by the fact that [i]n the fall and winter of , as the prospect of Germany s defeat loomed larger, the Hungarian government, at the direction of the Nazis, loaded... Jewish property onto a train bound for Germany. Rosner v. United States, 231 F. Supp. 2d 1202, (S.D. Fla. 2002). The lengthy train, known as the Gold Train, made its way from Hungary into Austria, but never made it to German territory because it was intercepted by the U.S. Army. Id. 9

23 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 20 of 46 foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. 1605(a)(2). Although it is not clear which clause of this exception Plaintiffs attempt to invoke, the only conceivable clause that might apply is the third clause because there is no allegation that this lawsuit is based on any actions occurring in the United States. To the contrary, this lawsuit is based on alleged actions by Hungary and MÁV in Europe during World War II. See Am. Compl. 3 (alleging that the defendants orchestrated, collaborated and participated in the confiscation of the personal possessions of their Hungarian Jewish victims and their transportation by train to the killing fields and death camps of Nazi Germany-occupied Poland and the Ukraine ). Accordingly, the Court s analysis of this exception is limited to considering whether the Plaintiffs claims (1) involve commercial activity outside the United States that (2) cause[d] a direct effect in the United States. 28 U.S.C. 1605(a)(2). The Plaintiffs cannot satisfy either requirement. First, a commercial activity under the FSIA is either a regular course of commercial conduct or a particular commercial transaction or act. 28 U.S.C. 1603(d); see Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992) ( [T]he 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. ) (citation omitted) (emphasis in original). Here, the alleged actions of Hungary and MÁV asserted by the Plaintiffs cannot be considered commercial activity as a matter of law. Plaintiffs allege that Hungarian officials stripped Jews, including named plaintiffs herein, of their valuable possessions when they were transferred into the Jewish ghettoes and as they boarded the defendants trains taking them to slave labor camps, concentration camps and extermination camps. Am. Compl. 82. Plaintiffs also allege that [a]t the points of embarkation, MÁV confiscated and kept personal 10

24 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 21 of 46 property of the Jews who were about to be deported, and that MÁV mistreated the Jewish deportees who were on its trains during their deportation, causing grievous injury and death to many of them en route. Am. Compl. 84. In short, Hungary and MÁV are alleged to have expropriated and/or nationalized Plaintiffs property. But as multiple courts have held, nationalization is the quintessentially sovereign act and is never viewed as having a commercial character. Carey v. Nat l Oil Corp., 453 F. Supp. 1097, 1102 (S.D.N.Y. 1978); see also Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, (11th Cir. 2003) ( Expropriation is neither the type of activity in which private actors engage nor is it a market transaction. ); Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250, 254 (7th Cir. 1983) (holding that commercial activity exception did not apply because nationalization... is a quintessential Government act ). Second, the alleged expropriation and/or nationalization of Plaintiffs property lacks the requisite nexus with the United States, as required by the third clause of the commercial activity exception. 28 U.S.C. 1605(a)(2) (commercial activity must cause a direct effect in the United States ). As the D.C. Circuit has held, the effect in the United States cannot be purely trivial, but must instead follow[] as an immediate consequence of the defendant s... activity. Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 1994) (quoting Weltover, 504 U.S. at 618). This is because Congress did not intend to provide jurisdiction whenever the ripples caused by an overseas transaction manage eventually to reach the shores of the United States. United World Trade, Inc. v. Mangyshlakneft Oil Prod. Ass n, 33 F.3d 1232, 1238 (10th Cir. 1994). At most, Plaintiffs allege that Hungary and MÁV now own and/or operate property in the United States that was exchanged for property that they allegedly stole from Plaintiffs. See Am. 11

25 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 22 of 46 Compl. 83, Of course, Plaintiffs fail to allege any details about any such exchanges of property (e.g., what property was involved? when did these exchanges occur?). Regardless, courts look to the place where the legally significant acts giving rise to the claim occurred in determining the place where a direct effect may be said to be located. United World Trade, 33 F.3d at 1239 (internal quotation omitted). Here, the legally significant acts allegedly occurred in Hungary and any exchanges of property in the United States were not immediate consequence[s] of the defendants alleged expropriation and/or nationalization. Weltover, 504 U.S. at 618. In short, there is no dispute that Hungary and MÁV are sovereign entities. See Am. Compl. 82, 85. Therefore, under the FSIA, Hungary and MÁV are presumptively immune from the jurisdiction of this Court. Plaintiffs also cannot establish that any FSIA exception applies to the facts of this case. Accordingly, the Court does not have subject matter jurisdiction over Hungary and MÁV, and Plaintiffs Complaint against them should be dismissed. II. THE PLAINTIFFS CLAIMS PRESENT NON-JUSTICIABLE POLITICAL QUESTIONS. Historically, reparations 13 following a war have been resolved through state-to-state negotiations. See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 485 (D.N.J. 1999) ( As an issue affecting U.S. relations with the international community, war reparations fall within the domain of the political branches and are not subject to judicial review. ) (citing Oetjen v. Central Leather, Co., 246 U.S. 297, 302 (1918)). No post-war reparations have been discussed and 12 Plaintiffs do not provide any support for these allegations in the Complaint. Rather, they merely make conclusory statements parroting the words of the statute, which is insufficient to raise a right to relief above the speculative level. Twombly, 550 U.S. at War reparations have been defined to include all the loss and damage to which... Governments and their nationals have been subjected as a consequence of the war imposed upon them. Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 275 (D.N.J. 1999) (quoting Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, Art. 231, 1 Bevans 43, ). 12

26 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 23 of 46 negotiated by governments as much as those relating to the mistreatment of Jews by the Nazi regime during the Holocaust. Numerous U.S. federal courts have refused to pass judgment on claims against various sovereign entities and companies that were under the direction and control of the Nazi regime, holding that the resolution of these claims and compensation of the victims is more properly left to inter-governmental negotiations. See, e.g., Kelberine v. Societe Internationale, Etc., 363 F.2d 989, 995 (D.C. Cir. 1966); In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370 (D.N.J. 2001). The claims giving rise to Plaintiffs claims in this case are no different. Since the end of World War II, the United States and Hungary have addressed such claims through state-to-state negotiations. 14 In February 1947, the United States signed and ratified the 1947 Peace Treaty which expressly addressed and resolved the issue of compensation of Hungarian Jews for Holocaustrelated confiscation or property. See 1947 Peace Treaty at Art In 1991, following the end of the Communist regime, Hungary took steps to comply with Article 27 through the enactment of legislation designed specifically to compensate those who suffered losses after See Am. Compl. 132; Nagy Decl. at In 1993, the Hungarian Constitutional Court determined that Hungary had not fully discharged its duties under Article 27 of the 1947 Peace Treaty, id. at 27, and Hungary took additional steps to comply with its obligations under the 1947 Peace 14 Plaintiffs seek to distinguish this case from previous attempts to have U.S. courts pass judgment on the actions of other sovereign entities involved in the Holocaust by claiming that Hungary and MÁV have never been brought before the bar of justice, and casting their claims as an effort to to remedy these injustices. Am. Compl. 4. As discussed, those issues are more appropriately addressed between governments, not U.S. courts. 15 In addition to being signed by the Hungary and United States, the 1947 Peace Treaty was also signed by the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, Australia, the Byelorussian Soviet Socialist Republic, Canada, Czechoslovakia, India, New Zealand, the Ukranian Soviet Socialist Republic, the Union of South Africa, and the People s Federal Republic of Yugoslavia. See Proclamation to 1947 Peace Treaty (McCaffrey Decl. Ex.1). As a result, adjudication of the claims in this case would not only require this Court to pass judgment on the sufficiency of an agreement entered into by the United States Government, but one entered into by a number of other foreign nations. 13

27 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 24 of 46 Treaty. Id. at Plaintiffs do not dispute that the Article 27 of the 1947 Peace Treaty provided the mechanism for Hungarian Jews, like the Plaintiffs, to seek restitution of their property from Hungary or, in the alternative, compensation. Rather, they complain that Article 27 was merely declaratory and did not provide sufficient means for enforcement of sanctions for noncompliance. See Am. Compl However, Plaintiffs ignore Article 40 of the 1947 Peace Treaty, which provides the mechanism for resolving any disputes relating to claims under the treaty. Article 40 states that any disputes that are not settled by direct diplomatic negotiations are to be referred to the Heads of the Diplomatic Missions from the Soviet Union, the United Kingdom, and the United States. If a dispute remains unresolved by the Heads of the Diplomatic Missions, then the dispute will be resolved by a Commission consisting of a representative from each party to the dispute, who will then either select a third member or request that the Secretary General of the United Nations designate a third member. Neither Article 40 nor any other provision of the 1947 Peace Treaty contemplates a resolution of any dispute arising under the treaty through private civil litigation. Further supporting the fact that the resolution of the Plaintiffs World War II-related claims was intended to be the sole province of the Executive Branch, in 1973, the United States and Hungary entered into an executive agreement, the 1973 Agreement, that was designed to settle the claims of U.S. citizens against Hungary. See 1973 Agreement (McCaffrey Decl. at Ex. 2). Article 1 of the 1973 Agreement provided for the payment of $18.9 million by Hungary to the United States in full and final settlement and in discharge of all claims of the United States and U.S. nationals. The claims covered by the 1973 Agreement included property, rights and interests affected by Hungarian measures of nationalization, compulsory liquidation, 14

28 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 25 of 46 expropriation, or other taking on or before the date of this Agreement. Id. at Art. 2. In return for the payment from Hungary, the United States Government agreed to discharge Hungary from all claims referenced in Article 2, stating that [u]pon their discharge, 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 [Hungary]. Id. at Art. 6. Therefore, the 1973 Agreement prohibits any claims by United States citizens, and therefore, the claims of Plaintiffs who are U.S. citizens must be dismissed as they conflict with the 1973 Agreement. See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (upholding the authority of the Executive Branch to enter into an executive agreement relating to the release of hostages by the Republic of Iran which suspended the claims of American nationals against Iran and terminated those claims through binding arbitration in an Iran-United States Claims Tribunal). The Plaintiffs acknowledge in their Complaint that in the years since the end of World War II, Hungary has enacted several laws designed to compensate its Jewish citizens for the wrongs committed against them during the Holocaust. See Am. Compl. at 127, They complain, however, that the restitution and compensation available to them under those various legislative enactments and statutes are insufficient. See id. These various compensation schemes resulted from policy decisions made by Hungary internally, and through multi-national negotiations with other nations including the United States in the wake of the Holocaust. An attempt to examine and evaluate the sufficiency of those compensation schemes by this Court would present precisely the kind of multi-layered political question that depends entirely upon policy choices and value determinations constitutionally committed to the President and 16 The Complaint acknowledges that at least one plaintiff, Ella Feuerstein Schlanger received compensation from Hungary in relation to the loss of family members. See Am. Compl. at

29 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 26 of 46 Congress. See Baker v. Carr, 369 U.S. 186, 211 (1962). 17 In Baker, the Supreme Court identified six factors to be considered in determining whether an action presents a non-justiciable political question: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217. These six factors are evaluated individually, and where any one of the Baker factors is inextricable from the case, the court should dismiss a case as presenting a non-justiciable political question. Id. Several of the Baker factors counsel for dismissal of this case, particularly the first, fourth, and fifth factors. It is beyond dispute that United States foreign relations and foreign policy are demonstrably committed by our Constitution not to the courts but to the political branches. Joo v. Japan, 413 F.3d 45, 52 (D.C. Cir. 2005) (dismissing war-related claims against Japan based on peace treaties entered into by various foreign states with Japan following World War 17 From its earliest days, the federal judiciary has held political questions to be committed by the Constitution to another branch of government, and therefore not justiciable by any court. See Ware v. Hylton, 3 U.S. 199, (1796); Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Baker v. Carr, 369 U.S. 186, (1962); Kelberine v. Societe Internationale, Etc., 363 F.2d 989, 995 (D.C. Cir. 1966). This doctrine is firmly rooted in separation of powers principles and obliges a court to decline to adjudicate claims that call on the court to infringe on or disregard the constitutionally-granted discretion of the political branches. Baker, 369 U.S. at 210 ( The nonjusticiability of a political question is primarily a function of the separation of powers. ). 16

30 Case 1:10-cv BAH Document 22-1 Filed 04/08/11 Page 27 of 46 II). Further, it is beyond dispute that the United States has actively engaged in foreign policy directives aimed at resolving compensation and restitution claims relating to the Holocaust through political negotiations and international agreement, not through the federal court system. See Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57, 59 (2d Cir. 2005) ( The past two presidential administrations, notwithstanding their differences in political affiliation, have committed the United States to a policy of resolving Holocaust-era restitution claims through international agreements rather than litigation. ). As discussed above, the historical record is clear that the United States has made the decision to specifically address claims against Hungary arising out of the Holocaust through international negotiation. 18 Moreover, adjudicating Plaintiffs claims would require this Court to pass judgment not only on the sufficiency of Hungary s compliance with its Article 27 responsibilities, but also on the sufficiency of the Hungarian Constitutional Court s decision regarding Hungary s compliance, and to inject itself impermissibly into foreign policy choices made by the political branches of the United States Government starting over half a century ago. Additionally, the fourth and fifth Baker factors would be impacted if this Court were to review and comment upon the Executive Branch s decision to enter into the 1947 Peace Treaty and 1973 Agreement. As a result, this Court should dismiss the Plaintiffs claims on the grounds that they present non-justiciable political questions. Indeed, not only would adjudication of these claims reflect a lack of respect due 18 Constitutional separation of powers principles and the political question doctrine dictate that a core foreign policy issue such as post-war reparations is the province of the political branches of government. See Baker, 369 U.S. at ; Oetjen, 246 U.S. at 302 (conduct of foreign affairs is committed by the Constitution to the Executive and Legislative the political Departments of the Government ); United States v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (in areas of foreign affairs, the political question doctrine routinely precludes judicial scrutiny ) (citation omitted). Indeed, one area of foreign affairs that is particularly within the realm of presidential authority is the settlement and compromise of foreign claims. See Dames & Moore v. Regan, 453 U.S. 654, (1981); United States v. Pink, 315 U.S. 203, (1942); Belk v. United States, 858 F.2d 706, 710 (Fed. Cir. 1988). 17