Case of the Day: Ambar v. Germany

The case of the day is Ambar v. Federal Republic of Germany (D.D.C. 2022). The story involves a look at Germany’s laws stripping Jews of their citizenship, their nationality, and their property, and Germany’s post-war efforts to make amends. Salo Feuerwerk was a Viennese Jew who owned a building in Berlin. In 1935, Germany adopted the Reich Citizenship Law, which stripped German Jews of their citizenship and rendered them German nationals. In 1937, Feuerwerk fled Austria for Romania. In the Anschluss of 1938, Germany annexed Austria and declared all Austrian citizens to be German nationals. In 1940 Feuerwerk fled Europe for what was then Mandatory Palestine. In 1941, Germany denationalized German Jews residing abroad and confiscated their property, including Feuerwerk’s building. Title to the building passed to the Reich, later to the German Democratic Republic, and finally to the Federal Republic of Germany. Feuerwerk died in 1942. In 1968, Germany’s Constitutional Court declared that the laws denationalizing Jews and confiscating their property were void ab initio.

Feuerwerk’s grandchildren brought a claim against the Germany government, seeking damages for the taking of the building and the loss of rents. It is striking when a family’s Holocaust story has to be put in the form of a complaint for conversion—it’s like reading old common law cases and realizing that behind the dry formalism there is often a tragic human story. My favorite example of this Brian Simpson’s chapter on Shelley’s Case, where it turns out that the driest of dry old cases conceals an interesting and tragic story of family illness and religious conflict. Anyway, the German government moved to dismiss under the FSIA. Everyone agreed that the relevant exception to foreign sovereign immunity was the expropriation exception; that the expropriation exception applies only to taking of property in violation of international law; and that international law does not bar a state from taking the property of its own nationals. Feuerwerk said he was not a German national under German law as it stood at the time of the taking, because the Nazi regime had denationalized him in 1941. Germany said that he was a German national at the time of the taking, because the German courts later found the law void ab initio.

The court held that Germany’s argument failed either way. If German law at the time is the right law to apply, then of course Feuerwerk was not a German national. But if post-Nazi era German law should govern, then Germany’s arguments would require the court to treat the Anschluss as valid (since Feuerwerk was an Austrian citizen who became a German national only because of the Anschluss) but to treat the other Nazi-era laws as void ab initio. The court found this approach to be clearly inequitable and thus contrary to international law. Moreover, under Austrian law enacted in 1945, the Anschluss was treated as void from the beginning and people in Feuerwerk’s position were declared never to have lost their citizenship. Germany points out that Feuerwerk died before 1945, but the court held that the Austrian law was meant to include even those who, like him, died between the time of the Anschluss and the end of the war.

5 responses to “Case of the Day: Ambar v. Germany”

  1. kotodama

    Nice post. I like how Germany’s way too cute argument blew up in its face. That said, if expropriation only applies to noncitizens, then does that mean, in this context, descendants of Jews who lived in other European countries outside Germany have more potential recourse for expropriation under FSIA than Jews who were actual citizens in Germany? Sorry if it’s a novice-type question, but I was just curious.

    1. Ted Folkman

      Kotodama, I am not an expert on expropriation, but I think that basically that’s right: if someone is clearly a citizen of state A, and state A expropriates his property, it’s not clear that the expropriation was contrary to international law, which is necessary before the US court can exercise jurisdiction.

  2. Hi Ted: Nice summary. I am co-counsel in this case. Our client brought our attention to this post in your blog.

    BTW, I love the name of your blog! Wish I thought of it first ;).

    Anyway, thanks for writing about the case.

    1. Ted Folkman

      Thanks, Noam, and congratulations on the good work in this case. I’ll tell you the story of the blog’s name. More than a decade ago, I had just made partner in a mid-sized Boston firm, where I had focused on business litigation. I sat at home one day thinking, “Crap! I need to find a good niche so that I can develop my own practice!” I had done a few letters of request under the Service and Evidence Conventions but was hardly an expert. Anyway, the name popped into my head, and I started Letters Blogatory, which led to meeting people, which led to getting cases, which led to … well, you get the idea. I owe a big part of my career to a moderately funny brainstorm in January 2011.

  3. Well, it’s a great blog and a great story. Good luck with all your endeavors. If you ever need any assistance here in Israel, let us know. I will certainly reach out to you if we need any local counsel assistance in this area. All the best, Noam.

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