Hungary v. Simon (23-867)

argument 23-867

Hungary v. Simon

Supreme Court of the United States 1h 24m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the FSIA expropriation exception and how does it apply to Hungary v. Simon?

John G. Roberts 0:00

We will hear argument this morning in case twenty three eight

Mr. Glasgow 0:03

sixty seven Hungary versus Simon. Mr Glasgow? Mr Chief Justice, and may it please the court. Hungary and its national railway, MAV, are immune from suit under the Foreign Sovereign Immunities Act unless the expropriation exception applies. And the key phrase in that exception is exchanged for. There's no dispute that to exchange means to give one thing in return for another. Accordingly, domestic courts have jurisdiction over this case only of some present day asset having a commercial nexus with the United States. was given in return for. Items taken from fourteen individuals in nineteen forty four. Respondents have not even attempted to make that show. Instead, they rest their case on the theory that all fungible assets of Hungary, its agencies, and its instrumentalities

Mr. Glasgow 0:48

were given in return for those specific items taken more than six decades before this case was filed. That's simply inconsistent with ordinary meaning. And while this case can be decided on text alone, history and context confirm the limited scope of the expropriation exception. It arose from congressional opposition to a particular decision of this court, the Sabatino decision. which concerned identifiable and traceable property. When Congress enacted the FSIA, it intended to codify the restrictive view of foreign sovereign immunity, not to work a radical transformation of international law. But the comingling theory would do just that. It would undermine important limits and other provisions of the statute.

Mr. Glasgow 1:26

And would require US courts to decide claims having no real connection to this country. The DC circuit substantively erred in adopting the comingling theory, and it committed two procedural errors. It imposed a burden of production on sovereign defendants rather than the proponents of jurisdiction. and it declined to ask whether respondents' allegations made out of valid claim to jurisdiction. The D C circuit's opinion should be reversed. In this case should be dismissed. I welcome the court's questions.

Clarence Thomas 1:51

Uh what was uh and you in under your theory, what would respondent have to show in order to make out uh jurisdiction using employing the uh commingling theory?

Mr. Glasgow 2:02

I think there are several types of evidence that a plaintiff could use. to establish uh an exchange even after comingling. So first there's the type of mathematical evidence, the most obvious example being uh withdrawal from a commingled account. that could not have occurred but for a deposit of tainted funds. uh given the prior balance. Uh second, you can imagine direct evidence, um, instructions to an accountant to run illegal proceeds through the books of a company before depositing them into a personal account. And third, you can imagine indirect evidence. You might have an atypical uh deposit of a specific amount into an account, followed shortly thereafter by a withdrawal in the same amount. Under those circumstances, a fact finder might be able to conclude that an exchange has occurred using ordinary meaning.

Mr. Glasgow 2:50

But simply showing that funds entered into the general revenues of an entire nation that you know contained billions of dollars, followed by untold numbers of transactions following that deposit simply isn't consistent with the plain text.

John G. Roberts 3:06

There's the country has an account uh that is ninety-five percent composed of funds from uh appropriated property. Five percent isn't. Uh is your argument still uh the same? And and the uh entity in the United States spends less than uh five percent of

Mr. Glasgow 3:23

the

John G. Roberts 3:24

uh proceedings.

Mr. Glasgow 3:25

I I think there are close questions, but in in those circumstances, maybe a fact finder could say it's at least as likely as not that tainted funds are involved and the details would matter, um temporal proximity, um as I said, whether there's other direct or indirect evidence, but potentially those types of claims could qualify, yes.

John G. Roberts 3:47

Um so it doesn't matter. Um uh commingling doesn't mean that that's some taint from property that uh uh is is uh funds that are not uh from appropriation.