The case of the day is Scalin v. Société Nationale SNCF SA (7th Cir. 2021). The plaintiffs were the descendants of Jews in France whom the authorities sent to death camps on trains operated by the French national railroad, the defendant. The railroad workers stole the Jews’ belongings and gave them to the Nazis, and the victims’ descendants sued the railroad. They argued that they had a right of action under 28 U.S.C. § 1605(a)(3), which creates an exception to foreign sovereign immunity when the case concerns “rights in property taken in violation of international law.”

I hate Holocaust restitution cases, because they force me to put my money where my mouth is. On the one hand, the French Jews who were robbed on their way to death at mass extermination camps were the victims of a great atrocity. On the other hand, it is very hard to see why, more than 75 years after the crimes of the Nazis and their French collaborators in France, a foreign national (or more precisely, his or her descendants) should have a legal remedy in a US court, for all sorts of reasons. As with the Germany v. Phillip decision, I am in the unhappy position of having to side with the Nazi collaborators on the main legal issue in the case.

Judge Easterbrook’s opinion does a good job of illustrating the many fast-moving pieces on the board. The lower court had dismissed the plaintiffs’ claims on abstention grounds under Seventh Circuit precedent holding that even if foreign nationals have a claim for expropriation during a genocide that they can bring in a US court, the court “may abstain in favor of compensation systems offered in the nation where the wrongs occurred.” France has an administrative claims process for victims of the Nazis and the Vichy government.

But before the appeal was argued, in Philipp v. Germany, the DC Circuit rejected the Seventh Circuit’s precedents, holding that abstention was never appropriate. The Seventh Circuit deferred its decision pending the Supreme Court’s review in Philipp, but the SCOTUS decision didn’t decide the abstention issue at all, instead deciding the case on the grounds that the expropriation exception to foreign sovereign immunity is never available when the plaintiff was a national of the state guilty of the expropriation.

After Philipp, the plaintiffs asked the Seventh Circuit to remand for further proceedings to determine whether any of the victims were not French citizens at the time of the wrong. But the court declined to remand, instead indicating that it would wait for the decision in Nestlé USA v. Doe. In Nestlé, the court held that a “triple-foreign” claim (a foreign plaintiff asserting that a foreign defendant injured him in a foreign country) cannot proceed under the Alien Tort Statute, even if the claim is that a US company aided and abetted the wrong.

Thus, after Nestlé, it was clear that the plaintiffs could have no claim under the ATS. They have no claim under state law, since Illinois law (the law of the state where the court sat) had no claim against foreign nationals for foreign acts and, Judge Easterbrook suggested, since in any case a state lacks jurisdiction to regulate in such matters.

In light of this unfavorable landscape, the plaintiffs made a new argument. Their claim did not arise under the ATS or under state law, but under the FSIA itself. The relevant provision reads as follows:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case–

(3) in which rights in property taken in violation of international law are in issue …

The problem, the court held, was that this statute is purely jurisdictional. It creates an exception to foreign sovereign immunity but does not itself create a cause of action. (Not all FSIA immunity exceptions work this way: the state terrorism exception, 28 U.S.C. § 1605A, does not just create an exception to immunity but also creates a federal cause of action). So if the plaintiffs cannot point to the ATS, or to state law, or to the FSIA itself as the source of their cause of action, it must be that they have no cause of action. (I suppose it is possible they could have a cause of action under French law, aside from the French administrative claims process, that a US court might have jurisdiction to adjudicate, but that isn’t developed in the opinion, and I assume there is no such claim).

The law seems clear, to me at least. But is the outcome a bad outcome? I don’t think so, in light of the values of comity. Judge Easterbrook’s examples are right on the money. Suppose a French judge, on the petition of descendants of Japanese Americans, were to order the US government to pay damages to the descendants for our racist internment policy during World War II. Or reaching farther back, suppose a French judge, on the petition of descendants of Native Americans, were to order the US government to pay damages to the descendants of treaty violations and land seizures. That would be wrong and absurd, right? Comity is the idea that we should respect the right of other states to make their own decisions about their own people in their own territory, because we expect other states to respect our right. And besides, what business is it of France’s, anyway? For if a French court could make such a decision, then so could a Chinese court, or you pick one of the 190+ states in the world.

I should probably batten down the hatches for unhappy comments from readers from the human rights world. What I’ve written doesn’t have anything to do with the substance of human rights law, i.e., what human rights we all have. It is, I suppose, an attack on the utopian idea of universal jurisdiction (at least in the civil context).