Princz v. Federal Republic of Germany

Citation26 F.3d 1166
Decision Date01 July 1994
Docket Number93-7006,Nos. 92-7247,s. 92-7247
PartiesHugo PRINCZ, Appellee, v. FEDERAL REPUBLIC OF GERMANY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (92cv00644).

Peter Heidenberger, Washington, DC, argued the cause for appellant. With him on the briefs were Thomas G. Corcoran, Jr. and Kathleen S. Rice, Washington, DC.

Steven R. Perles, Washington, DC, argued the cause for appellee. With him on the brief was David E. Sher, Arlington, VA.

On the brief for amici curiae The Anti-Defamation League, The Intern. Ass'n 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, Washington, DC.

Nicholas N. Kittrie, Washington, DC, entered an appearance for amicus curiae Washington College of Law.

Before WALD, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge WALD.

GINSBURG, Circuit Judge:

Hugo Princz, a Holocaust survivor, brought suit in the district court against the Federal Republic of Germany to recover money damages for the injuries he suffered and the slave labor he performed while a prisoner in Nazi concentration camps. The district court asserted subject matter jurisdiction over Mr. Princz's claim, and Germany appealed pursuant to 28 U.S.C. Sec. 1292. See Foremost McKesson v. Islamic Empire of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (district court's denial of foreign state's motion to dismiss on ground of sovereign immunity held immediately appealable).

We now hold, for the reasons set out below, that the district court does not have subject matter jurisdiction of Mr. Princz's claims. Assuming that the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Secs. 1330, 1602-1611, applies retroactively to events occurring in 1942-1945, no exception to the general grant of sovereign immunity in that statute applies in this case. If the FSIA does not apply retroactively, then there is no federal subject matter jurisdiction over Mr. Princz's claims, which sound in tort and quasi contract.


When the United States declared war against Nazi Germany in 1942, Hugo Princz, an American and a Jew, was living with his parents, his sister, and his two brothers in what is now Slovakia. The Slovak police arrested the entire Princz family as enemy aliens and turned them over to the Nazi SS. Rather than allow the Princz family to return to the United States as part of the civilian prisoner exchange then being conducted by the Red Cross, because they were Jews the SS sent them to concentration camps. Mr. Princz's parents and his sister were murdered at Treblinka, 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. After being injured at work, Mr. Princz'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. When United States soldiers liberated Mr. 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. The other liberated prisoners were sent to displaced persons camps, but because Mr. Princz is an American he was sent to an American military hospital for treatment.

After the war the government of the new Federal Republic of Germany established a program of reparations for Holocaust survivors. The German government denied Mr. Princz's 1955 request for reparations, however, because Mr. Princz was neither a German citizen at the time of his imprisonment nor a "refugee," within the meaning of the Geneva Convention, after the war. It appears that Mr. Princz would have qualified for reparations when the German government changed the criteria for eligibility in 1965, but he did not apply again before the statute of limitations ran in 1969.

Beginning in 1984 Mr. Princz, joined by the United States Department of State and members 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) for reparations in the form of ex gratia payments or the establishment of a pension fund; all such requests were denied. As the 1991 Treaty on the Final Settlement with Respect to Germany was 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 federal district court, filing this action against Germany for false imprisonment, assault and battery, and negligent and intentional infliction of emotional distress, as well as recovery quantum meruit for the value of his labor in the I.G. Farben and Messerschmidt plants. After acceding to service of process, Germany moved to dismiss per Fed.R.Civ.P. 12(b)(1), asserting lack of subject matter jurisdiction owing to sovereign immunity, and under Rule 12(b)(6), asserting that Mr. Princz failed to state a claim upon which relief could be granted owing to the statute of limitations having run.

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 of an American citizen, simply because he was Jewish." 813 F.Supp. 22, 26 (D.D.C.1992). As we shall see below, that is not the law.


Germany argues that the district court lacks subject matter jurisdiction over Mr. Princz's complaint for damages sounding in tort and quasi contract because the FSIA is the only basis for 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 codified in that Act. In the alternative, Germany argues that the FSIA does not apply retroactively to this case, and that Germany is therefore entitled to absolute sovereign immunity under the law of this circuit as it stood at the time the Nazis enslaved Mr. Princz. All of these questions concerning Germany's entitlement to sovereign immunity are matters of law for this court to consider de novo. Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 241 (2d Cir.1994).

A. What Law Applies?

The FSIA was enacted in 1976. If it applies to this case, which arose from events occurring from 1942 to 1945, then it "provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 690, 102 L.Ed.2d 818 (1989). Under the Act, the general rule is that of sovereign 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 federal courts during 1942-45, when the events now in suit occurred. During that time, indeed from 1812, when the Supreme Court decided The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 132, 3 L.Ed. 287, until 1952 the United States, as a matter of grace and comity, granted foreign sovereigns "virtually absolute immunity" from suit in the courts of this country. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 1967, 76 L.Ed.2d 81 (1983). For their part, the courts

consistently ... deferred to the decisions of the political branches--in particular, those of the Executive Branch--on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities.

Until 1952, the State Department ordinarily requested immunity in all actions against friendly foreign sovereigns.

Id. (citations omitted).

In the first half of the 20th century the "restrictive" theory of sovereign immunity increasingly gained international acceptance. Restatement (Third) of The Foreign Relations Law of the United States, Ch. 5 p. 391 (1987). Under this approach immunity is confined to the sovereign or public acts of the foreign state and does not extend to its commercial or private acts. The Department of State embraced the restrictive theory of immunity in 1952. Letter from Jack B. Tate, Acting Legal Advisor, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984-85 (1952), and in Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 712-13, 96 S.Ct. 1854, 1869-70, 48 L.Ed.2d 301 (1976). Thereafter the State Department continued to advise courts on a case-by-case basis whether immunity should be granted; if in a particular case no advice was forthcoming, then the courts independently determined whether immunity was appropriate. Jackson v. People's Republic of China, 794 F.2d 1490, 1493 (11th Cir.1986).

By enacting the FSIA in 1976, the Congress substantially codified the restrictive theory of sovereign immunity. Commercial Bank of Kuwait, 15 F.3d at 241; Jackson, 794 F.2d at 1493; H.R.Rep. No. 1487, 94th Cong., 2nd Sess. 7 (1976), U.S.Code Cong. &amp Admin.Serv. 1976, p. 6604. Neither the Supreme Court nor this court has yet determined, however, whether the Act applies that theory retroactively. Most courts that have considered the issue of retroactivity have held that FSIA does not apply to events occurring before issuance of the Tate Letter in 1952. See Carl Marks & Co., Inc. v. Union of Soviet Socialist Republics, 841 F.2d 26 (2d Cir.1988); Jackson v. People's Republic of China, 794 F.2d 1490, 1497-98 (11th Cir.1986); Slade...

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