Brief of Professor William S. Dodge as Amicus Curiae in Support of Plaintiffs-Appellants, Simon v. Republic of Hungary

Abstract

This amicus brief was filed with the D.C. Circuit in Simon v. Republic of Hungary, a case brought by Holocaust survivors under the expropriation exception of the Foreign Sovereign Immunities Act. The district court adopted a doctrine of prudential exhaustion, articulated by the Seventh Circuit, and held that plaintiffs were required to exhaust their domestic remedies in Hungary before bringing suit in the United States.

The amicus brief argues that the district court erred in adopting prudential exhaustion as an available ground for dismissal in suits brought under the FSIA. First international law does not require exhaustion of local remedies before filing suit in the domestic courts of another country. The local remedies rule in customary international law requires exhaustion as a precondition only to exercising diplomatic protection or filing claims before an international tribunal.

Second, international comity does not require extending an exhaustion requirement to suits brought in domestic courts. Applied to international proceedings, the local remedies rule only delays access, because decisions of domestic courts have no res judicata effect in subsequent international proceedings. Applied to U.S. domestic courts, by contrast, an exhaustion requirement effectively forecloses access to a plaintiff’s preferred forum, because a foreign court’s decision on the merits binds a U.S. court as res judicata.

Third, recognizing a doctrine of prudential exhaustion runs against the “virtually unflagging” obligation of the federal courts to exercise jurisdiction. Declining to exercise jurisdiction on grounds of prudential exhaustion is particularly inappropriate for claims brought under the FSIA because Congress has expressly incorporated an exhaustion requirement for one of the FSIA’s exceptions but not for the others.

Keywords: Exhaustion, Local Remedies, International Comity, Expropriation, Foreign Sovereign Immunities Act