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United States Court of Appeals for the DISTRICT of COLUMBIA CIRCUIT Argued November 5, 1993 Decided July 1, 1994 Nos. 92-724

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United States Court of Appeals for the DISTRICT of COLUMBIA CIRCUIT Argued November 5, 1993 Decided July 1, 1994 Nos. 92-724 <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>> USCA Case #93-7006 Document #67188 Filed: 07/01/1994 Page 1 of 30 UnitedÿStatesÿCourtÿofÿAppeals FORÿTHEÿDISTRICTÿOFÿCOLUMBIAÿCIRCUIT ArguedÿNovemberÿ5,ÿ1993ÿÿÿÿÿÿDecidedÿJulyÿ1,ÿ1994 Nos.ÿ92-7247ÿandÿ93-7006 HUGOÿPRINCZ, APPELLEE v. FEDERALÿREPUBLICÿOFÿGERMANY, APPELLANT AppealÿfromÿtheÿUnitedÿStatesÿDistrictÿCourt forÿtheÿDistrictÿofÿColumbia (92cv00644) Peter Heidenberger argued the cause for appellant. Withÿhimÿo nÿt heÿbriefsÿwereÿ Thomas G. Corcoran,ÿJr. andÿKathleenÿS.ÿRice. StevenÿR.ÿPerles arguedÿtheÿcauseÿforÿappellee.ÿÿWithÿhimÿonÿtheÿbriefÿwasÿ DavidÿE.ÿSher. On the brief for amici curiae The Anti-Defamation League, The International Association of Jewish Lawyers and Jurists, and Faculty Members of the American University, Washington College of Law, were Jill Kahn Meltzer, Sheldon H. Klein, David M. Levine, Steven M. Roth, and Warren L. Dennis. NicholasÿN.ÿKittrie enteredÿanÿappearanceÿforÿamicusÿcuriae WashingtonÿCollegeÿofÿLaw. BeforeÿWALD,ÿGINSBURG,ÿandÿSENTELLE,ÿCircuitÿJudges. OpinionÿforÿtheÿCourtÿfiledÿbyÿCircuitÿJudge GINSBURG. DissentingÿopinionÿfiledÿbyÿCircuitÿJudge WALD. GINSBURG,ÿCircuit Judge: HugoÿPrincz,ÿaÿHolocaustÿsurvivor,ÿbroughtÿsuitÿinÿtheÿdistrict court against the Federal Republic ofGermany to recover money damages for the injuries he suffered andÿtheÿslave labor he performed while a prisoner in Nazi concentration camps. Theÿdistrictÿcourt asserted subject matter jurisdiction over Mr. Princz's claim, and Germanyÿappealedÿpursuantÿtoÿ28 U.S.C.ÿ§ÿ1292.ÿÿSeeÿForemostÿMcKessonÿv.ÿIslamicÿEmpireÿofÿIran, 905 F.2d 438, 443 (D.C. Cir. 1990) (district court's denial of foreignÿstate's motion to dismiss on ground of sovereign immunity heldÿimmediatelyÿappealable). We now hold, for the reasons set out below, that the district court does not have subject <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>> USCA Case #93-7006 Document #67188 Filed: 07/01/1994 Page 2 of 30 matterÿjurisdictionÿofÿMr.ÿPrincz'sÿclaims.ÿ Assuming that the ForeignÿSovereignÿImmunitiesÿActÿof 1976, 28 U.S.C. §§ 1330, 1602-1611, applies retroactively to events occurring inÿ1942-1945,ÿno exception to the general grant of sovereign immunity in that statute applies in this case. IfÿtheÿFSIA does not apply retroactively, then thereÿisÿnoÿfederalÿsubjectÿmatterÿjurisdictionÿoverÿMr.ÿPrincz's claims,ÿwhichÿsoundÿinÿtortÿandÿquasiÿcontract. I. BACKGROUND When the United Statesÿdeclaredÿwarÿagai nstÿNaziÿGermanyÿinÿ1942,ÿHugoÿPrincz,ÿan AmericanÿandÿaÿJew,ÿwasÿlivingÿwithÿhisÿparents,ÿhisÿsister,ÿandÿhisÿtwoÿbrothersÿinÿwhat isÿno w Slovakia. TheÿSlovakÿpoliceÿarrestedÿtheÿentireÿPrinczÿfamilyÿasÿenemyÿaliensÿandÿturnedÿthemÿover to the Nazi SS. RatherÿthanÿallowÿtheÿPrinczÿfamilyÿtoÿreturnÿtoÿt heÿUnitedÿStatesÿasÿpartÿof the civilianÿprisoner exchange then being conducted byÿtheÿRedÿCross,ÿbecauseÿtheyÿwereÿJewsÿtheÿSS sentÿthemÿtoÿconcentrationÿcamps.ÿÿMr.ÿPrincz'sÿparentsÿandÿhisÿsister wereÿmurderedÿatÿTreblinka, while Mr. Princz and his two younger brothers were sent to Auschwitz and then to Birkenau, where they were forced to work at an I.G. Farben chemical plant. Afterÿbeingÿinjuredÿatÿwork,ÿMr.ÿPrincz's brothers were starved to death in the "hospital" at Birkenau. Mr. Princz was later marched to Dachau, where he was forced to work in a Messerschmidt factory. WhenÿUnitedÿStatesÿsoldiersÿliberatedÿMr. Princz at the end of the war, he was in a freight car full of concentration camp prisoners en route to another camp for extermination. Theÿotherÿliberatedÿprisonersÿwereÿsentÿtoÿdisplacedÿpersonsÿcamps, butÿbecauseÿMr.ÿPrinczÿisÿanÿAmericanÿheÿwasÿsentÿtoÿanÿAmericanÿmilitaryÿhospitalÿforÿtreatment. After the war the government ofthe new Federal Republic ofGermany established a program of reparations for Holocaust survivors. TheÿGermanÿgovernmentÿdeniedÿMr.ÿPrincz'sÿ1955ÿrequest for reparations, however, because Mr. Princz was neither a German citizenÿatÿtheÿtimeÿofÿhis imprisonment nor a "refugee," within the meaningÿof theÿGenevaÿConvention,ÿafterÿtheÿwar.ÿÿIt appears that Mr. Princz would have qualified for reparations when the German government changed the criteria for eligibility in 1965, but heÿdidÿnotÿapplyÿagainÿbefore the statute of limitations ran in 1969. Beginning in 1984 Mr. Princz, joined by the United States Department of State and members <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>> USCA Case #93-7006 Document #67188 Filed: 07/01/1994 Page 3 of 30 of the New Jersey congressional delegation, initiated a series of requests to the German government and the U.S. subsidiaries of I.G. Farben (BASF, Hoechst, and Bayer) forÿreparationsÿinÿtheÿformÿof ex gratia payments or the establishment of a pension fund;ÿÿallÿsuchÿrequestsÿwereÿdenied.ÿÿAsÿthe 1991 Treatyonthe Final Settlement with Respect to Germanywas awaiting ratification by the Senate, the Bush Administration attempted anew to resolve Mr. Princz's claim through diplomatic channels. That effort failed, as have the overtures that the Clinton Administration later made to the government of Germany. In 1992, Mr. Princz finally resorted to federaldistrict court, filing this action against Germany for false imprisonment, assault and battery, and negligent and intentionalÿinflict ionÿofÿemotional distress, as well as recovery quantumÿmeruitÿforÿtheÿvalueÿofÿhisÿlaborÿinÿtheÿI.G.ÿFarbenÿand Messerschmidt plants. Afterÿaccedingÿtoÿserviceÿofÿprocess,ÿGermanyÿmovedÿtoÿdismissÿperÿFed.ÿR. Civ. P. 12(b)(1), asserting lack ofsubject matter jurisdiction owing to sovereign immunity, and under Rule 12(b)(6), asserting that Mr. Princz failed to stateÿaÿclaimÿuponÿwhichÿreliefÿcouldÿbeÿgranted owingÿtoÿtheÿstatuteÿofÿlimitationsÿhavingÿrun. The district court held that it had jurisdiction of the case on the ground that the FSIA "has no role to play where the claims alleged involve undisputed acts of barbarism committed by a one-time outlaw nation which demonstrated callous disrespect for the humanity ofan American citizen, simply because he was Jewish." 813ÿF.ÿSupp.ÿ22,ÿ26ÿ(D.D.C.ÿ1992).ÿÿAsÿweÿshallÿseeÿbelow,ÿthatÿisÿnotÿthe law. II. ANALYSIS Germany argues that the districtÿcourtÿlacksÿsubjectÿmatterÿjurisdictionÿoverÿMr.ÿPrincz's complaint for damages sounding in tort and quasi contractÿbecauseÿtheÿFSIAÿisÿtheÿonlyÿbasisÿfor obtaining jurisdiction over a foreign sovereign in the courts of the United States and this case comes within no exception to the rule of sovereign immunity codifiedÿinÿthatÿAct.ÿÿInÿtheÿalternative, Germanyargues that the FSIA does not apply retroactively to this case, and that Germanyis therefore entitled to absolute sovereign immunity under the law of this circuit as it stood at the time the Nazis enslaved Mr. Princz. AllÿofÿtheseÿquestionsÿconcerningÿGermany'sÿentitlementÿtoÿsovereignÿimmunity <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>> USCA Case #93-7006 Document #67188 Filed: 07/01/1994 Page 4 of 30 are matters of law for this court to consider de novo. CommercialÿBankÿofÿKuwaitÿv.ÿRafidainÿBank, 15ÿF.3dÿ238,ÿ241ÿ(2dÿCir.ÿ1994). A.ÿÿWhatÿLaw Applies? The FSIA was enacted in 1976. Ifÿit appliesÿtoÿthisÿcase,ÿwhichÿaroseÿfromÿeventsÿoccurring from 1942ÿtoÿ1945,ÿthenÿitÿ"providesÿtheÿsoleÿbasisÿforÿobtainingÿjurisdictionÿoverÿaÿforeignÿstate in federal court." ÿArgentineÿRepublicÿv.ÿAmeradaÿHessÿShippingÿCorp., 488 U.S. 428, 439 (1989). Under the Act, the general rule is that ofsovereign immunity, subject to various statutory exceptions. If the FSIA does not apply to this case, then we are presumably remitted to the practice that prevailed in the federalÿcourtsÿduringÿ1942-45,ÿwhenÿtheÿeventsÿnowÿinÿsuit occurred. Duringÿthat time,ÿindeedÿfrom 1812, when the Supreme CourtÿdecidedÿTheÿSchoonerÿExchangeÿv.ÿMcFaddon, 11 U.S. (7 Cranch) 116, 132, until 1952 the United States, as a matter of grace and comity, granted foreign sovereigns "virtually absolute immunity" from suitÿinÿtheÿcourtsÿofÿthisÿcountry.ÿÿVerlinden B.V.ÿv.ÿCentralÿBankÿofÿNigeria, 461ÿU.S.ÿ480,ÿ486ÿ(1983).ÿÿForÿtheirÿpart,ÿtheÿcourts consistently ... deferred to the decisions ofthe political branchesin particular, those ofthe Executive Branchon whether to take jurisdiction over actions against foreign sovereignsÿandÿtheirÿinstrumentalities. Until 1952, the State Department ordinarily requested immunity in all actions againstÿfriendlyÿforeignÿsovereigns. Id. (citationsÿomitted). In the first half of the 20th century the "restrictive" theory ofsovereign immunity increasingly gainedÿinternationalÿacceptance.ÿ Restatement (Third) of TheÿForeignÿRelationsÿLawÿofÿtheÿUnited States, Ch. 5 p. 391 (1987). Underÿthisÿapproachÿimmunityÿisÿconfinedÿtoÿtheÿsovereignÿorÿpublicÿacts of the foreign state and does not extend to its commercial or private acts. TheÿDepartmentÿofÿState embraced the restrictive theory of immunityÿinÿ1952.ÿÿLetterÿfromÿJackÿB.ÿTate,ÿActingÿLegal Advisor, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984-85 (1952), andÿinÿAlfredÿDunhillÿofÿLondon,ÿInc.ÿv. Cuba, 425 U.S. 682, 712-13 (1976). Thereafter the State Department continued to advise courtsona case-by-case basis whether immunity shouldÿbeÿgranted; ifÿinÿaÿparticularÿcaseÿnoÿadviceÿwasÿforthcoming,ÿthenÿtheÿcourtsÿindependently determined whether immunity was appropriate.ÿÿJackson v. People's Republic of China, 794 F.2d <<The pagination
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