David L. De Csepel v. Republic of Hungary, Aforeign State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2025 Decided January 23, 2026
No. 24-7045
DAVID L. DE CSEPEL, ET AL.,
APPELLANTS
v.
REPUBLIC OF HUNGARY, A FOREIGN STATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01261)
Alycia Regan Benenati argued the cause for appellants.
With her on the briefs were Sheron Korpus and David E. Mills.
Aaron M. Brian argued the cause for appellees. With him
on the brief were Thaddeus J. Stauber and Zachary C. Osinski.
Adam R. Tarosky entered an appearance.

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No. 24-7148
DAVID L. DE CSEPEL, ET AL.,
APPELLANTS
v.
REPUBLIC OF HUNGARY, A FOREIGN STATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01261)
Alycia Regan Benenati argued the cause for appellants.
With her on the briefs was Sheron Korpus. David E. Mills
entered an appearance.
Aaron M. Brian argued the cause for appellees. With him
on the brief were Thaddeus J. Stauber and Zachary C. Osinski.
Adam R. Tarosky entered an appearance.
Before: PILLARD and PAN, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.

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PILLARD, Circuit Judge: These related appeals call on us
to consider, for the fourth time, a family’s decades-long effort
to recover artwork that the Hungarian government and its Nazi
collaborators seized from it during and following World War
II. The historical context for this dispute is the campaign of
annihilation unleashed on Hungary’s Jews following that
country’s occupation by Nazi Germany in 1944, mere months
before the end of the war in Europe. In less than a year, more
than two-thirds of Hungary’s prewar Jewish population was
murdered, most of them at Auschwitz, in what Winston
Churchill described as “one of the greatest and most horrible
crimes ever committed.” Jewish property, meanwhile, was
seized by Hungarian and German authorities and redistributed
across Europe—the spoils of a regime of state-perpetrated
genocide.
This litigation is one of many suits brought by descendants
of the victims of the Hungarian Holocaust seeking to recover
their seized property. The narrow legal question we confront
in these appeals is whether claims regarding any of the stolen
artwork at issue are actionable in U.S. courts under the Foreign
Sovereign Immunities Act’s expropriation exception. Our
circuit has grappled with aspects of that question since the
outset of this suit fifteen years ago, and the intervening
doctrinal clarifications have proved challenging for the
family’s claims. On remand from our third decision in this
case, the district court, in two related decisions, dismissed this
case entirely. Separate judgments generated two appeals,
which we consolidated here for oral argument and decision.
For the reasons explained below, we hold that U.S. courts
lack jurisdiction over the family’s claims. Plaintiffs have the
burden to establish that their artwork was taken in violation of
the international law of expropriation. They have not done so.
No international authorities of which we have been made aware

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support plaintiffs’ assertions that a nation-state’s taking of
property either from a foreign national during a wartime
military occupation or from a de facto stateless person violates
the international law of expropriation as it stood when the FSIA
was enacted. And, as to two paintings that the family recovered
after the war but that Hungary retook in the postwar period, the
domestic-takings rule and a preexisting treaty prevent us from
exercising jurisdiction. We therefore affirm the judgments of
the district court.
I.
A.
The Foreign Sovereign Immunities Act (FSIA) provides
‘‘the sole basis for obtaining jurisdiction over a foreign state in
our courts.’’ Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 434 (1989); see 28 U.S.C. § 1602 et seq.
Absent a preexisting agreement between the United States and
a foreign state, the FSIA precludes jurisdiction over suits
against a foreign state—or its agents or instrumentalities—
unless an exception applies. Republic of Hungary v. Simon
(Simon IV), 604 U.S. 115, 118 (2025); see 28 U.S.C. §§ 1604,
1605-1605B, 1607. At issue in this case is the FSIA’s
expropriation exception. That exception waives a foreign
state’s sovereign immunity in any case in which:
[1] rights in property taken in violation of
international law are in issue and [2.A.] that property
or any property exchanged for such property is
present in the United States in connection with a
commercial activity carried on in the United States by
the foreign state; or [2.B.] that property or any
property exchanged for such property is owned or
operated by an agency or instrumentality of the

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foreign state and that agency or instrumentality is
engaged in a commercial activity in the United States.
28 U.S.C. § 1605(a)(3). The exception thus “has two
requirements.” de Csepel v. Republic of Hungary (de Csepel
IV), 859 F.3d 1094, 1101 (D.C. Cir. 2017). “A claim satisfies
the exception if (1) ‘rights in property taken in violation of
international law are in issue,’ and (2) there is an adequate
commercial nexus between the United States and the
defendants.” Id. All agree—and the record reflects—that the
property at issue (the family’s artwork) is owned by agencies
or instrumentalities of Hungary that are sufficiently engaged in
commercial activity in the United States. Id. at 1104. So only
the requirement that defendants have committed a “tak[ing] in
violation of international law” is at issue in these appeals.
With respect to whether the FSIA covers the type of
takings at issue here, the Supreme Court has held that “the
phrase ‘rights in property taken in violation of international
law,’ as used in the FSIA’s expropriation exception, refers to
violations of the international law of expropriation.” Federal
Republic of Germany v. Philipp, 592 U.S. 169, 187 (2021).
Plaintiffs invoking that exception must therefore identify a
violation of the international law of expropriation specifically
and cannot rest on contravention of other bodies of
international law, such as international human rights law. Id.
at 182. The international law of expropriation referenced in
section 1605(a)(3) “incorporates the domestic takings rule,”
under which a foreign sovereign’s taking of its own nationals’
property does not implicate the international legal system. Id.
at 176-80, 187. As a result, Philipp generally bars plaintiffs
who were nationals of the expropriating state at the time of the
alleged taking from invoking the FSIA’s expropriation
exception to establish jurisdiction in U.S. courts. See, e.g.,
Ivanenko v. Yanukovich, 995 F.3d 232, 237 (D.C. Cir. 2021).

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In addition to exceptions the statute separately enumerates,
28 U.S.C. §§ 1605-1607, FSIA immunity is “[s]ubject to
existing international agreements to which the United States is
a party at the time of [the FSIA’s] enactment,” id. § 1604.
Thus, “if there is a conflict between the FSIA and such an
agreement regarding the availability of a judicial remedy
against a contracting state, the agreement prevails.” de Csepel
v. Republic of Hungary (de Csepel II), 714 F.3d 591, 601 (D.C.
Cir. 2013) (formatting modified). For a treaty to bar
jurisdiction otherwise available under the FSIA, the claims for
which jurisdiction is invoked must fall expressly within the
treaty’s scope. See id.
B.
We described the historical background of this case in
earlier opinions. See de Csepel II, 714 F.3d at 594-96; de
Csepel IV, 859 F.3d at 1097-98; de Csepel v. Republic of
Hungary (de Csepel VI), 27 F.4th 736, 739-41 (D.C. Cir. 2022).
For the convenience of the reader, we do so again here,
highlighting the most relevant context.
Baron Mór Lipót Herzog was a “passionate Jewish art
collector in pre-war Hungary” who had assembled before the
war a collection of more than two thousand paintings,
sculptures, and other artworks. Am. Compl. ¶ 37 (24-7045 J.A.
301).1 Known as the “Herzog Collection,” that body of artwork
was “one of Europe’s great private collections of art, and the
largest in Hungary,” and included works by renowned artists
such as El Greco, Velázquez, Renoir, and Monet. Id.
Following Herzog’s death in 1934 and his wife’s shortly
1 References to the appropriate brief or joint appendix are
preceded by the relevant case number.

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thereafter, their daughter Erzsébet and two sons István and
András inherited the collection.
Then came World War II and Hungary’s alliance with the
Axis Powers under Nazi leadership. During the war, Hungary
intensified a program of Jewish persecution that had
commenced in earnest in the late 1930s. It restricted Jewish
employment, prohibited sexual relations between Jews and
non-Jews, pressed some Jews into forced labor, and exiled
others to territories under German control. Nonetheless,
Hungary’s Jews “were treated significantly better in
comparison to [Jews in] other parts of Nazi-controlled Europe”
and consequently became “firmly convinced that they would
survive the war under the continued protection” of the
Hungarian state. Kende Decl. ¶¶ 13, 15 (24-7045 J.A. 2373-
74) (internal quotation marks omitted). That all changed in
early 1944, “on the very eve of triumph over the barbarism
which their persecution symbolize[d].” Franklin D. Roosevelt,
Statement on Opening Frontiers to War Victims and Justice for
War Crimes, The American Presidency Project (Mar. 24,
1944). Frustrated by Hungary’s “lack of vigor” in persecuting
its Jewish population and fearing that the country would defect
in the final days of the war from its alliance with Germany,
Adolf Hitler sent German troops to occupy the country in
March of that year. Kende Decl. ¶ 17 (24-7045 J.A. 2374)
(internal quotation marks omitted). Commander Adolf
Eichmann of the German paramilitary force Schutzstaffel, or
SS, entered the country along with the occupying forces and
established headquarters at the Majestic Hotel in Budapest.
The occupiers established a pro-Nazi puppet government
under Hungarian prime minister Döme Sztójay, who acted
under German orders to “solv[e] the Jewish question and
supply[] Germany with desperately needed goods.” Id. ¶ 22
(J.A. 2376) (internal quotation marks omitted).

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The arrival of the Germans marked a sharp deterioration
in the position of Hungary’s Jews. Indeed, “[n]owhere was the
Holocaust executed with such speed and ferocity as it was in
Hungary.” Simon v. Republic of Hungary (Simon I), 812 F.3d
127, 133 (D.C. Cir. 2016). Between mid-May and mid-July
1944, Hungarian authorities deported over fifty percent of the
country’s Jewish population. By war’s end, most were dead,
ninety percent of them having been “murdered upon arrival” at
Auschwitz and other death camps. Simon v. Republic of
Hungary (Simon II), 911 F.3d 1172, 1175 (D.C. Cir. 2018). As
an integral part of its genocidal program, “[t]he Hungarian
government, including the Hungarian state police, authorized,
fully supported and carried out a program of wholesale plunder
of Jewish property, stripping anyone ‘of Jewish origin’ of their
assets.” Am. Compl. ¶ 53 (24-7045 J.A. 305). Jews “were
required to register all of their property and valuables” above a
certain value, and the Hungarian government “inventoried the
contents of safes and confiscated cash, jewelry, and other
valuables belonging to Jews.” Id. ¶ 54 (24-7045 J.A. 305).
“[P]articularly concerned with the retention of artistic treasures
belonging to Jews,” the Hungarian government established “a
so-called Commission for the Recording and Safeguarding of
Impounded Art Objects of Jews . . . and required Hungarian
Jews promptly to register all art objects in their possession.”
Id. ¶ 55 (24-7045 J.A. 305). “These art treasures were
sequestered and collected centrally by the Commission for Art
Objects,” headed by the director of the Hungarian Museum of
Fine Arts. Id.
Faced with widespread looting of Jewish property, the
Herzogs “attempted to save their art works from damage and
confiscation by hiding the bulk of [them] in the cellar of one of
the family’s factories at Budafok.” Id. ¶ 57 (24-7045 J.A. 306).
Despite the family’s efforts, “the Hungarian government and
their Nazi[] collaborators discovered the hiding place” and

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confiscated the artworks. Id. ¶ 58 (24-7045 J.A. 306). The
collection was “taken directly to Adolf Eichmann’s
headquarters at the Majestic Hotel in Budapest for his
inspection,” where he “selected many of the best pieces” for
display near Gestapo headquarters and for eventual transport to
Germany. Id. ¶ 59 (24-7045 J.A. 306). “The remainder was
handed over by the Hungarian government to [its] Museum of
Fine Arts for safekeeping.” Id. After the seizure of the
collection, a pro-Nazi newspaper ran an article in which the
director of the Hungarian Museum of Fine Arts boasted that the
“Herzog collection contains treasures the artistic value of
which exceeds that of any similar collection in the
country. . . . If the state now takes over these treasures, the
Museum of Fine Arts will become a collection ranking just
behind Madrid.” Id. ¶ 58 (24-7045 J.A. 306).
“Fearing for their lives, and stripped of their property and
livelihoods, the Herzog family was forced to flee Hungary or
face extermination.” Id. ¶ 62 (24-7045 J.A. 307). Erzsébet
Herzog (Erzsébet Weiss de Csepel following her marriage) fled
Hungary with her children, first reaching Portugal and
eventually settling in the United States, where she became a
citizen in 1952. István Herzog was nearly sent to Auschwitz
but “escaped after his former sister-in-law’s
husband . . . arranged for him to be put in a safe house under
the protection of the Spanish Embassy.” Id. ¶ 41 (24-7045 J.A.
302). “He died in 1966, leaving his estate to his two sons,
Stephan and Péter Herzog, and his second wife, Mária
Bertalanffy.” Id. András Herzog had been “sent . . . into
forced labor in 1942 and he died on the Eastern Front in 1943.”
Id. ¶ 40 (24-7045 J.A. 302). His daughters, Julia Alice Herzog
and Angela Maria Herzog, fled to Argentina and eventually
settled in Italy, where they now live.

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The seized artworks were dispersed. Most were never
physically returned to the family. They instead were scattered
across Nazi-occupied Europe, shipped back to Hungary after
the war, and eventually deposited at the defendant institutions.
The artworks that were returned to the Herzog siblings or their
families in the years immediately following World War II were
soon taken back by the government for various reasons,
including a criminal-forfeiture judgment against István’s
former wife, Ilona Kiss. In 1973, the United States and
Hungary agreed to permanently settle the claims of U.S.
nationals regarding expropriations that had occurred as of the
date of the agreement. See Agreement Between the
Government of the United States of America and the
Government of the Hungarian People’s Republic Regarding
the Settlement of Claims, Hung.-U.S., Mar. 6, 1973, 24 U.S.T.
522 (1973 Agreement).
C.
After World War II, the Herzog family began a seven-
decade effort to reclaim their art collection. de Csepel IV, 859
F.3d at 1098. They first sued in the Hungarian courts. Id.
When those efforts proved unsuccessful, three heirs to the
collection—Erzsébet’s grandson David L. de Csepel, along
with András’s daughters Julia Alice and Angela Maria
Herzog—filed suit in 2010 in U.S. district court. Asserting
jurisdiction under the FSIA’s expropriation exception, 28
U.S.C. § 1605(a)(3), and commercial activity exception, id.
§ 1605(a)(2), they brought various common-law claims against
the Republic of Hungary, three art museums (the Budapest
Museum of Fine Arts, the Hungarian National Gallery, and the
Budapest Museum of Applied Arts), and the Budapest
University of Technology and Economics. They claimed
principally that defendants had “breached certain bailment
agreements entered into after World War II when they refused

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to return pieces of the Herzog Collection upon demand in
2008.” de Csepel v. Republic of Hungary (de Csepel I), 808 F.
Supp. 2d 113, 120 (D.D.C. 2011). Plaintiffs alleged that, of the
forty-four pieces from the Herzog Collection originally at
issue, twenty-four were owned by the heirs of András, twelve
by the heirs of Erzsébet, and eight by the heirs of István. de
Csepel v. Republic of Hungary (de Csepel III), 169 F. Supp. 3d
143, 148 (D.D.C. 2016). Forty-two of those artworks were
originally seized during the Nazi occupation of Europe, while
two were taken during the Communist era. Id. The heirs
sought imposition of a constructive trust, an accounting,
disgorgement, a declaration of their ownership of the Herzog
Collection, and, ultimately, either return of the artwork or $100
million in compensation. Compl. pt. V (24-7045 J.A. 83-84).
On Hungary’s motion, the district court dismissed claims
regarding eleven pieces of artwork on grounds of international
comity, de Csepel I, 808 F. Supp. 2d at 144-45, but it sustained
jurisdiction over the remaining thirty-one under the FSIA’s
expropriation exception, id. at 133. The court reasoned that the
domestic-takings bar posed no barrier to suit because Hungary
had de facto stripped Hungarian Jews of their citizenship and
because German Nazi officials had been “active[ly]
involv[ed]” in the alleged takings. Id. at 129-30. On appeal,
we reversed the international-comity dismissal and otherwise
affirmed the district court on different grounds. See de Csepel
II, 714 F.3d at 594, 598. Because the complaint focused on
alleged repudiation of bailment agreements with the Hungarian
defendants, we held that, regardless of whether the
expropriation exception applied, the case fit “comfortably
within the FSIA’s commercial activity exception.” Id. at
598-601.
On remand, following discovery, the district court
concluded it could no longer sustain jurisdiction under the

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commercial activity exception but reaffirmed that the
expropriation exception applied. de Csepel III, 169 F. Supp.
3d at 147. In doing so, it relied on our intervening decision in
Simon I, 812 F.3d 127, which had concluded that
expropriations from Jews during the Holocaust constituted
genocidal “takings” in violation of international law that are
actionable under the FSIA’s expropriation exception, id. at
142. See de Csepel III, 169 F. Supp. 3d at 163-64. As for the
two artworks that were first confiscated years after the
Holocaust, however, the district court held that it lacked
jurisdiction for fact-bound reasons not relevant to the current
appeal. Id. at 165-67.
We affirmed in part and reversed in part. See de Csepel
IV, 859 F.3d at 1097. In the main, we concluded that “[t]his
case is just like Simon [I],” id. at 1102, and thus the
expropriation exception was appropriate, id. at 1102-04. We
remanded to the district court for it to reconsider whether the
exception applied to the pieces of art returned to the Herzog
family after the war but later retaken by Hungary’s communist
government. Id. at 1104-05. Over a partial dissent by Judge
Randolph, we also dismissed the Republic of Hungary as a
defendant because we read the relevant clause of the
expropriation exception’s commercial-nexus requirement to
support jurisdiction over Hungary’s agencies or
instrumentalities but not the state itself. Id. at 1104-08. And
we granted the heirs leave to amend their complaint in light of
the Holocaust Expropriated Art Recovery Act of 2016 (HEAR
Act), Pub. L. No. 114-308, 130 Stat. 1524, which preempted
previous statutes of limitations and instituted a new six-year
statute of limitations from the passage of the Act for people
seeking recovery of Nazi-confiscated art. See de Csepel IV,
859 F.3d at 1109-10.

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On remand, the heirs amended their complaint to reference
the HEAR Act and add previously time-barred conversion
claims for wartime takings of the artworks. See Am. Compl.
¶¶ 87-98, 109-117 (24-7045 J.A. 312-15, 316-18). The current
complaint also adds as a defendant the state-owned corporation
Hungarian National Asset Management, Inc. (MNV), which
owns and manages certain Hungarian assets, including the
artworks at issue in this case. Id. ¶¶ 3, 14 (24-7045 J.A. 286,
289).
Hungary responded with a third motion to dismiss. As
relevant here, the district court held that it had jurisdiction over
claims relating to just five of nineteen pieces of art that had
been returned to the Herzogs following the war, including the
two pieces that had been retaken by Hungary after their postwar
return: József’s Borsos’s Portrait of the Architect Mátyás
Zitterbarth (which belonged to András) and Mihály
Munkácsy’s In the Studio (which belonged to Erzsébet). See
de Csepel v. Republic of Hungary (de Csepel V), 613 F. Supp.
3d 255, 286-300 (D.D.C. 2020). The district court certified that
order for immediate appellate review under 28 U.S.C.
§ 1292(b), but we declined to exercise our discretion to review
“those fact-bound determinations” at that stage, limiting our
review to legal questions of broader import. de Csepel VI, 27
F.4th at 753. At the conclusion of that third appeal, therefore,
claims regarding sixteen of the original forty-four artworks in
the litigation had been dismissed (two in de Csepel III and
fourteen in de Csepel V), leaving twenty-eight pieces in play.
Meanwhile, the Supreme Court decided Philipp, which, as
noted, held that the FSIA’s expropriation exception
encompasses only takings in violation of the international law
of expropriation—not those contrary to international
human-rights law—and thus incorporates the domestic-takings
bar. See 592 U.S. at 187. In light of Philipp, Hungary moved

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to dismiss for want of FSIA jurisdiction over all “artworks that
Hungary took from its own citizens.” Mot. to Dismiss 1
(24-7045 J.A. 2062). According to defendants, that defect
barred the family’s claims to twenty-seven of the remaining
twenty-eight artworks—all but an early sixteenth-century
German sculpture called Figure of Santa Barbara, for which
there was “some evidence” that it was “seized by [non-
Hungarian] officials and removed from Hungary to a salt mine
in Bad Ischl, Austria.” Id. at 19 (24-7045 J.A. 2080).2
After briefing on the motion was complete, we decided
Simon v. Republic of Hungary (Simon III), 77 F.4th 1077 (D.C.
Cir. 2023), vacated on other grounds by Simon IV, 604 U.S.
115. In that case, we declined to exercise jurisdiction over an
expropriation claim against Hungary brought by plaintiffs who
had argued that the domestic-takings bar did not prevent suit
because their predecessors—also survivors of the Hungarian
Holocaust—had been rendered de facto stateless by the time of
the taking. Id. at 1097-98. The district court requested
2 There is no direct evidence of a wartime taking for three
artworks at issue: József Borsos’s Girls with Garlands of Flowers,
Mihály Munkácsy’s The Afternoon Visit, and Jewelry Bowl,
attributed to Sebastianus Hann. Mot. to Dismiss 18-19 (24-7045 J.A.
2079-80); 24-7045 Hungary Br. 14 & n.43. The heirs asserted
below, however, that “documentary evidence” “strongly supports the
conclusion that at least two of the artworks” were taken by Hungary
during the Nazi occupation. Opp. 35 (24-7045 J.A. 2272). They thus
argued that these pieces should be treated “in the same manner as the
other artworks that were part of the war-time takings,” id. at 37
(24-7045 J.A. 2274), a contention they renew on appeal, see 24-7045
Heirs’ Br. 16 & n.6. The district court appears to have done so, de
Csepel V, 613 F. Supp. 3d at 286-300, and defendants do not object
to that treatment. We therefore treat these artworks as wartime
takings.

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supplemental briefing on the impact of our Simon III decision
on plaintiffs’ claims.
In the opinion under review in No. 24-7045, the district
court granted Hungary’s motion to dismiss as to twenty-seven
artworks—twenty-five that Hungary took during the
Holocaust, and two (In the Studio and Portrait of the Architect)
that Hungary retook later. de Csepel v. Republic of Hungary
(de Csepel VII), 695 F. Supp. 3d 1, 28, 34, 37 (D.D.C. 2023).
It first rejected the heirs’ attempt to evade the domestic-takings
bar by arguing that Germany was actually responsible for the
expropriations. The district court held instead that Germany’s
occupation was not alone enough to render it responsible and
that the record did not otherwise show that Germany directed
or coerced the takings. Id. at 10-28. The court then held that,
as in Simon III, the plaintiffs had not shown that a state’s taking
of a de facto stateless person’s property violates the
international law of expropriation. Id. at 29-34. Finally, the
court accepted the defendants’ urging that it reconsider
jurisdiction over In the Studio and Portrait of the Architect,
concluding on the available evidence that neither piece fell
under the expropriation exception. Id. at 34-38. As for the
Santa Barbara—which evidence indicated German officers
had taken—the court instructed the parties to file additional
briefing. Id. at 38.
In the opinion under review in No. 24-7148, the district
court held that it could not exercise jurisdiction over the Santa
Barbara because “at the time of the FSIA’s enactment, the
international law of expropriation did not include takings in
violation of the international laws of war.” de Csepel v.
Republic of Hungary (de Csepel VIII), 752 F. Supp. 3d 147,
160 (D.D.C. 2024). The Santa Barbara “was taken, according
to plaintiffs, by Nazi officials during Germany’s wartime
occupation of Hungary,” making it a wartime taking for which

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the heirs could not establish jurisdiction under the
expropriation exception. Id. at 162. The court held, in the
alternative, that based on forum non conveniens it would not
exercise jurisdiction over the Santa Barbara because the
parties agreed that an adequate alternative forum was available
in Hungary, and the relevant private- and public-interest factors
favored litigation there given that the remaining plaintiffs were
not American citizens. Id. at 162-64.
Plaintiffs timely appealed both decisions.
II.
We review the district court’s jurisdictional rulings on
questions of law de novo, Yanukovich, 995 F.3d at 236, and its
factual determinations for clear error, Price v. Socialist
People’s Libyan Arab Jamahiriya, 389 F.3d 192, 197 (D.C.
Cir. 2004).
A plaintiff seeking to sue a foreign sovereign under the
FSIA “bears the ‘initial burden’ of overcoming the Act’s
‘presumption of immunity’ by making out a legally sufficient
case that an exception does apply in the first place.” Helmerich
& Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela,
743 F. App’x 442, 449 (D.C. Cir. 2018) (quoting Bell
Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d
1175, 1183 (D.C. Cir. 2013)). To do so under the expropriation
exception, a plaintiff must advance a “valid claim that
‘property’ has been ‘taken in violation of international law.’ A
nonfrivolous argument to that effect is insufficient.”
Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l
Drilling Co., 581 U.S. 170, 178 (2017) (internal citation
omitted). Once a plaintiff has adequately shown that the
exception applies, “the burden shifts to [the foreign sovereign
defendant] to disprove that claim.” Helmerich, 743 F. App’x
at 449.

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If a defendant challenges “the factual basis of the court’s
jurisdiction,” the court “must go beyond the pleadings and
resolve any disputed issues of fact” necessary to adjudicate the
motion. Phoenix Consulting, Inc. v. Republic of Angola, 216
F.3d 36, 40 (D.C. Cir. 2000). In such a case, “the plaintiffs will
bear the burden of production, and the defendants will bear the
burden of persuasion to establish the absence of the factual
basis by a preponderance of the evidence.” Simon I, 812 F.3d
at 147 (internal quotation marks omitted).
III.
We begin by considering whether we have jurisdiction
over the claim for the Santa Barbara, as our resolution of that
issue affects treatment of the others. Before we address the
parties’ legal contentions, two preliminary disputes bear
mention. First, despite having previously acknowledged that
“some evidence” suggested that the Santa Barbara had been
taken by “non-Hungarian forces,” Mot. to Dismiss 19 (24-7045
J.A. 2080), Hungary now asserts that the heirs have not met
their factual burden on that score, see 24-7148 Hungary Br.
27-29. We disagree. The heirs have met their burden by
producing evidence that non-Hungarian officials took that
sculpture. See de Csepel VIII, 752 F. Supp. 3d at 158. For its
part, Hungary points to no evidence—much less a
preponderance—showing otherwise. Cf. Simon I, 812 F.3d at
147. It has failed to “disprove” the heirs’ proffered factual
basis for the assertion of jurisdiction. Helmerich, 743 F. App’x
at 449.
Second, Hungary renews its argument that the heirs should
be estopped from relying on their forebears’ de jure Hungarian
nationality to avoid the domestic-takings bar for Germany’s
taking of the Santa Barbara because the heirs elsewhere have
maintained that those relatives were rendered de facto stateless

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18
by the Holocaust. See 24-7148 Hungary Br. 24-26 & nn.5-6.
Courts have no occasion to apply the discretionary doctrine of
judicial estoppel absent a “clear[] inconsisten[cy]” between a
party’s earlier and later positions. Temple Univ. Hosp., Inc. v.
NLRB, 929 F.3d 729, 733 (D.C. Cir. 2019). As the very terms
“de facto” and “de jure” indicate, there is at least a formal—
and potentially legal—distinction between citizens who have
been officially denationalized and those who have simply been
treated as such. The heirs’ arguments from their forebears’ de
facto statelessness take as a premise that the Herzogs remained
de jure citizens of Hungary—the very same premise
undergirding their jurisdictional arguments as to the Santa
Barbara. We therefore conclude that the district court did not
abuse its discretion in declining to estop the heirs from relying
on their forebears’ de jure Hungarian nationality.
To determine whether the expropriation exception confers
jurisdiction here over plaintiffs’ claims regarding the Santa
Barbara, we “look to the law of property.” Philipp, 592 U.S.
at 180. The heirs rest their case on section 185 of the Second
Restatement of Foreign Relations Law, which lists three
independent conditions under which the “taking by a state of
property of an alien is wrongful” according to international
property law: lack of public purpose, discrimination with
respect to nationality, or absence of just compensation.
Restatement (Second) of Foreign Relations Law § 185 (A.L.I.
1965) (Second Restatement). According to plaintiffs,
Germany’s plunder of the Santa Barbara was an
“uncompensated, discriminatory taking of a foreign national’s
property” and thus squarely implicated one or more of the
conditions rendering an international taking wrongful.
24-7148 Heirs’ Br. 20.
As the operative Restatement at the time of the FSIA’s
enactment, the Second Restatement “bears authoritative weight

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19
in interpreting the Act.” Simon III, 77 F.4th at 1097; see
Philipp, 592 U.S. at 180. Here, however, it cannot satisfy the
heirs’ burden. As the district court observed, the Second
Restatement expressly limits the applicability of its
commentary to “times of peace,” and it states more than once
that “[t]he effect of war or hostilities . . . is beyond the scope of
the Restatement of this Subject.” Second Restatement pt. IV,
Intro. Notes ¶ 1; see id. § 34, Reporters’ Note 2. Plaintiffs do
not dispute—indeed, they assert—that the Santa Barbara was
taken by Germany during its wartime military occupation of
Hungary. See 24-7148 Heirs’ Br. 9; Oral Arg. Rec. 0:52-1:07,
6:25-53. That sculpture’s taking is therefore “beyond the
scope” of the very Restatement on which the heirs rely to meet
their burden of presenting a “valid claim” that the expropriation
exception applies. Helmerich, 581 U.S. at 178.
In response, plaintiffs insist that “a taking can[] violate
both the international law of war and the international law of
expropriation.” 24-7148 Heirs’ Br. 24; see 24-7148 Reply Br.
3-13. Even if that is theoretically true, parties must show that
the challenged taking violated the international law of
expropriation as such, regardless of whether it also violated
some other body of law. On that question, the heirs’ reliance
on the Second Restatement leaves them empty handed. Pressed
at oral argument for some source of international law that might
support their argument, plaintiffs mentioned only the Hague
Convention—itself a codification of the laws of war, not the
international law of property. Oral Arg. Rec. 17:47-18:53,
20:16-21:43. A cursory comparison of the two bodies of law,
moreover, places in doubt their suggestion that “the same
principles apply to the war-time taking of property belonging
to aliens” as to peacetime expropriations. 24-7148 Heirs’ Br.
22. The Second Restatement permits expropriations during
peacetime as long as none of the conditions in section 185 is
violated, see Second Restatement § 185, whereas the Hague

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20
Convention states flatly that “[p]illage is forbidden” and
“[p]rivate property cannot be confiscated” during military
occupations, Hague Convention No. IV Respecting the Laws
and Customs of War on Land, arts. 43, 46-47, Oct. 18, 1907,
36 Stat. 2277. And even putting aside those incongruities, we
could not exercise jurisdiction under the FSIA on the mere
supposition that the principles articulated by the Second
Restatement might apply to wartime situations, despite its
explicit disclaimer that they may not.
Without any source establishing a violation of the
international law of expropriation, plaintiffs point to U.S.
judicial decisions that they assert have resolved this question in
their favor. If anything, however, the cases show only that this
issue has yet to be squarely decided by any court. The Supreme
Court in Philipp stated in dicta that “[c]laims concerning Nazi-
era art takings could be brought under the expropriation
exception where the claims involve the taking of a foreign
national’s property.” 592 U.S. at 185. But that case concerned
a 1935 forced art sale in prewar Nazi Germany, so the Court
had no occasion to consider the narrower question of wartime
Nazi takings. See id. at 174. The heirs point out that Philipp
cited the Supreme Court’s earlier decision in Republic of
Austria v. Altmann, 541 U.S. 677 (2004), which concerned a
suit brought under the expropriation exception to recover art
that Austria had taken from a Czechoslovakian national, see id.
at 680-82. Altmann, however, concerned only whether the
FSIA applies to pre-enactment conduct, see id. at 681, not
whether wartime takings establish jurisdiction under the
expropriation exception. And while Nazi Germany had
originally confiscated that art during its annexation of Austria,
the Court was clear that the basis for the expropriation claim—
and the locus of the Court’s review—was Austria’s postwar
conduct thwarting the claimant’s attempts to reassert
ownership of the art, not “the legal validity of title passed

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21
through Nazi looting.” Id. at 706 (Breyer, J., concurring); see
id. at 683-87, 697 (majority opinion). Neither Altmann nor
Philipp, therefore, counsels us to accept the heirs’ theory of
jurisdiction.
Nor do any other authorities brought to our attention
support our jurisdiction. The Supreme Court in Altmann
reviewed only part of the Ninth Circuit’s decision, leaving
undisturbed the determination that the expropriation exception
applied to the Nazi-era taking. See Altmann v. Republic of
Austria, 317 F.3d 954, 968 (9th Cir. 2002). But no party there
asserted that the international law of expropriation is
inapplicable to wartime takings, so the Ninth Circuit had no
occasion to consider the point. See, e.g., id. (relying on non-
wartime precedent invoking the Second Restatement).
Plaintiffs also point to a case from our district court that
similarly held that challenges to Nazi wartime takings may
proceed under the expropriation exception. See Agudas
Chasidei Chabad of U.S. v. Russian Federation, 466 F. Supp.
2d 6, 19-20 (D.D.C. 2006). That case relied on other district
courts’ identification of principles of international law. See id.
(citing Altmann v. Republic of Austria, 142 F. Supp. 2d 1187
(C.D. Cal. 2001), and Bodner v. Banque Paribas, 114 F. Supp.
2d 117 (E.D.N.Y. 2000)). Like Agudas Chasidei itself, see id.
at 15-16, those cases invoked either the Restatement’s
approach to non-wartime takings, see Altmann, 142 F. Supp.
2d at 1202—which we have already explained does not support
the heirs’ position on wartime takings—or the international law
of war, see Bodner, 114 F. Supp. 2d at 134, an approach that
Philipp has since abrogated. In any event, we did not review
that holding on appeal, see Agudas Chasidei Chabad of U.S. v.
Russian Federation, 528 F.3d 934, 943 (D.C. Cir. 2008), so any
contrary conclusion does not bind us. And Cassirer v.
Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en banc),
concerned only Germany’s pre-war confiscation of artwork

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22
from plaintiffs’ de jure stateless Jewish forebears, see id. at
1023 & n.2; Cassirer v. Kingdom of Spain, 461 F. Supp. 2d
1157, 1165-66 (C.D. Cal. 2006); Compl. ¶¶ 21-24, Cassirer v.
Kingdom of Spain, No. 05-3459 (C.D. Cal. May 10, 2005),
ECF No. 1 (alleging that the taking occurred in 1939 shortly
before the war began).
Finally, the heirs point to a 1949 State Department press
release and various Holocaust-related statutes in support of
their general contention that “the United States has long
recognized the invalidity of Nazi war time seizures of
property.” 24-7148 Heirs’ Br. 26-29. Each of those statutes,
however, was raised in Philipp, where the Court held that they
“do not speak to sovereign immunity.” 592 U.S. at 186. And
a State Department letter, however indicative of the stance of
the Executive at the time, does not control the jurisdiction of
the federal courts—especially when that letter addressed a case
involving only the act-of-state doctrine and did not mention
foreign sovereign immunity. See Bernstein v. N. V.
Nederlandsche-Amerikaansche, Stoomvaart-Maatschappij,
210 F.2d 375, 375-76 (2d Cir. 1954); see also First Nat’l City
Bank v. Banco Nacional de Cuba, 406 U.S. 759, 764 (1972)
(plurality opinion) (referring to the “so-called Bernstein
exception to the act of state doctrine”). The heirs, in short, must
establish that Congress in the FSIA has authorized federal
courts to exercise jurisdiction in circumstances like these,
which requires showing that the international law of
expropriation reaches them. It is not enough that postwar U.S.
policy generally favored restitution for Nazi-era takings.
In holding that the FSIA’s expropriation exception
incorporates “the international law governing property rights”
as such, the Supreme Court approvingly quoted the
International Court of Justice, which declared that “a State is
not deprived of immunity by reason of the fact that it is accused

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23
of serious violations of international human rights law or the
international law of armed conflict.” Jurisdictional Immunities
of the State (Germany v. Italy), Judgment, 2012 I.C.J. 99, ¶ 91
(Feb. 3); see Philipp, 592 U.S. at 182. The Supreme Court read
the expropriation exception more narrowly than we and other
lower courts had done, expressly warning against
“transforming the expropriation exception into an all-purpose
jurisdictional hook for adjudicating human rights violations.”
Philipp, 592 U.S. at 183.
We heed that directive here. Because we conclude that the
heirs have not met their burden, we need not decide whether
the FSIA’s expropriation exception ever establishes
jurisdiction over claims of wartime property confiscation. It
suffices that the authorities the heirs have presented to the court
do not make out a “valid claim,” Helmerich, 581 U.S. at 178,
that wartime takings violate the international law of
expropriation. The FSIA’s expropriation exception thus does
not support jurisdiction over plaintiffs’ claims relating to the
Santa Barbara.
IV.
A.
The foregoing obviates the need to adjudicate the heirs’
theory that Germany, as the occupying power at the time, is
legally responsible for all wartime takings of the Herzog
Collection, including the twenty-five works for which the
available evidence points only to Hungarian involvement. See
24-7045 Heirs’ Br. 38-52; de Csepel VII, 695 F. Supp. 3d at
10-28. Plaintiffs press several versions of that theory on
appeal, each of which asks us to avoid the domestic-takings bar
by looking beyond the Hungarian actors to attribute
responsibility for the takings to Germany. 24-7045 Heirs’ Br.

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24
42-43. That analytic step leads to a dead end. To the extent
the heirs succeed on any of their theories of German
responsibility, those artworks would then be in the same
position as the Santa Barbara sculpture vis-à-vis the wartime-
takings question—as plaintiffs themselves admitted at oral
argument. See Oral Arg. Rec. 10:34-12:00. It would thus make
little difference whether plaintiffs could show that Germany
was legally responsible for the takings of artworks other than
the Santa Barbara. Even assuming that it was, the heirs would
run up against the same inability to make out a legally sufficient
case that wartime takings fall within the ambit of the
expropriation exception. See 24-7045 Hungary Br. 37.
We resolve plaintiffs’ German-responsibility theories on
this basis even though it was not a ground for dismissal that
Hungary pressed before the district court for these artworks.
“[W]hen an issue or claim is properly before the court, the court
is not limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify and
apply the proper construction of governing law.” U.S. Nat.
Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
446 (1993). These appeals arise from the same case between
the same parties. The wartime-takings question was
extensively litigated before the district court in the related
appeal concerning the Santa Barbara. And, to the extent
Germany is ultimately responsible for the takings, all the art in
question is positioned the same with regard to the relevant legal
question. We therefore do not confront a scenario in which
“[e]normous confusion . . . would result” by permitting
counsel “to appeal upon points not presented to the court
below.” Keepseagle v. Perdue, 856 F.3d 1039, 1053-54 (D.C.
Cir. 2017) (internal quotation marks omitted). We see no point
in untangling the thicket of state responsibility for takings
during a military occupation when a deeper jurisdictional
defect bars the claim either way.

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25
B.
That leaves only the heirs’ alternative theory in support of
jurisdiction, premised on the asserted de facto statelessness of
the Herzogs when Hungary took their property. In Simon III,
we addressed a question left open by Philipp: whether
descendants of individuals who were rendered de facto
stateless by the Holocaust can evade the domestic-takings bar
on the theory that their forebears should be considered “aliens”
for the purposes of the international law of expropriation. 77
F.4th at 1094-98. We held that Philipp might accommodate
such a theory, see id. at 1094-96, but we nonetheless concluded
that the plaintiffs had not demonstrated that such a theory had
“jelled into a binding rule of customary international law,” id.
at 1098. The Simon III plaintiffs had relied on the fact that the
term “alien” in the Second Restatement denotes both foreign
nationals and stateless persons “for purposes of the
responsibility of a state for injury” to an individual, Second
Restatement § 171, thus seeming to encompass stateless
persons within international expropriations law. But, we noted,
the Second Restatement also provides that stateless aliens are
“without remedy” under international law for takings claims
against an expropriating state, with certain exceptions not
relevant to the case. Simon III, 77 F.4th at 1097-98 (quoting
Second Restatement § 175 cmt. d). And we found no support
in the plaintiffs’ secondary sources for the contention that the
taking of a de facto stateless person’s property is otherwise a
remediable violation of the international law of expropriation.
See id. at 1098.
The heirs aim to pick up where the Simon III plaintiffs left
off. Rather than identify new “sources of international law not
before us” in that case, id., they also rely on the Second
Restatement and instead argue that neither it nor the FSIA
“mandates that the injured party have a particular international

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26
law remedy available at the time of the taking in order for the
conduct at issue to be wrongful and constitute a violation of
international law.” 24-7045 Heirs’ Br. 34. We may assume,
like the district court, that Hungary’s persecution of the
Herzogs indeed rendered them de facto stateless, see de Csepel
VII, 695 F. Supp. 3d at 31; 24-7045 Heirs’ Br. 29; see also
Simon III, 77 F.4th at 1097 (taking this approach), and proceed
to examine whether that fact would enable plaintiffs to
establish jurisdiction.
Even if plaintiffs’ interpretation of the Second
Restatement is correct, their exclusive reliance on it
nonetheless leaves them shorthanded once again. For one, they
fail to show that the Second Restatement refers to de facto,
rather than only de jure, stateless persons. As the district court
explained and Hungary argues here, if the Second Restatement
refers only to persons officially denaturalized, then it provides
no support for the contention that de facto stateless persons
constitute a distinct category of alien protected by international
law. See de Csepel VII, 695 F. Supp. 3d at 33 n.20; 24-7045
Hungary Br. 38-39. In the absence of authority for distinct
international-law protection as de facto stateless, plaintiffs
retain their de jure Hungarian nationality so presumably would
be subject to the domestic-takings bar. Plaintiffs never address
this lacuna in their argument, instead relying on a district court
case involving only de jure denationalization. See 24-7045
Heirs’ Br. 37 (citing Ambar v. Federal Republic of Germany,
596 F. Supp. 3d 76, 84 (D.D.C. 2022)). The Second
Restatement, ambiguous on this point, does not support the
conclusion that the heirs’ position had “crystallized into an
international norm that bears the heft of customary law.”
Helmerich, 743 F. App’x at 449.
Assuming, moreover, that the Second Restatement could
plausibly be interpreted to refer to de facto stateless persons,

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“its pronouncements are useful only if they flow from sources
of positive law such as judicial authority or reasoned scholarly
commentary.” Id. at 453. Plaintiffs point to no source of
international law supporting their interpretation of the Second
Restatement. Conversely, many such sources posit that the
opposite rule flows from the fact that international law treats a
state’s injury to an alien as, ordinarily, an injury to the alien’s
state rather than to the alien herself. See Philipp, 592 U.S. at
176-77; Mezerhane v. Republica Bolivariana de Venezuela,
785 F.3d 545, 551 (11th Cir. 2015) (agreeing with Fifth Circuit
that “injuries to individuals have been cognizable only where
they implicate two or more different nations” (formatting
altered)). That conceptualization poses a difficult problem for
those who, like plaintiffs, would premise a violation of
international law on their forebears’ statelessness.
Early in the last century, renowned international-law
theorist L.F.L. Oppenheim reported that “stateless
individuals . . . lack any protection whatever as far as”
international law is concerned because, by dint of having no
nationality, “the link by which they could derive benefits from”
that law “is missing.” 1 Oppenheim, International Law: A
Treatise § 312 (2d ed. 1912). Thus, “as a point of international
legality there is no restriction whatever upon a State’s
maltreating them to any extent.” Id. His 1955 update to that
treatise restated that basic principle, while noting the important
exception of human-rights law. Id. (8th ed. 1955). So, too, a
seminal 1931 claims-commission arbitral decision observed
that a state “does not commit an international delinquency in
inflicting an injury upon an individual lacking nationality.”
Dickson Car Wheel Co. (U.S.A.) v. United Mexican States, 4
R.I.A.A. 669, 678 (Mex.-U.S. Gen. Claim Comm’n, July
1931). And modern scholars have written that, “in general,
stateless persons cannot be classified as or treated like aliens.”
Kay Hailbronner & Jana Gogolin, Aliens, Max Planck

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28
Encyclopedias of International Law, ¶ 3 (July 2013). As one
commentator puts it, the “substantive guarantees of the law of
aliens developed hand-in-hand with the exercise of diplomatic
protection, which, at least from a historical perspective,
referred only to nationals of other states.” Sebastián Mantilla
Blanco, Full Protection and Security in International
Investment Law 172 (2019).
Tellingly, the Third Restatement of Foreign Relations Law
entirely abandons the language on statelessness in its
predecessor Restatement that provided a potential opening for
plaintiffs. The Third Restatement clarifies that the
international law of expropriation protects only “a national of
another state” or a “foreign national,” Restatement (Third) of
Foreign Relations Law, § 712 & cmt. a (1987), and “provide[s]
no protection for persons who have no nationality,” id. § 713
cmt. d. Instead, it notes, such persons are covered by “general
human rights law.” Id. As the Supreme Court has made clear,
however, the expropriation exception is not concerned with
violations of international human-rights law. Philipp, 592 U.S.
at 180. That customary international law has come to protect
the human rights of stateless persons as individuals does not
mean that the international law of property, as a branch of the
law of nations, extends to them similar protections. See
Blanco, supra, at 175-76 (making this point). And, as Philipp
itself pointed out, even international human-rights law itself
traditionally remained “silent . . . on the subject of property
rights.” 592 U.S. at 178. The heirs’ references to various
human-rights treaties that protect the rights of stateless persons,
see 24-7045 Reply Br. 12-13, are therefore beside the point.
In sum, the heirs have not met their burden to show that
we may exercise jurisdiction over these claims on the basis of
the FSIA’s expropriation exception. Philipp requires us to look
only to the international law of property to identify the legal

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29
violation for purposes of the expropriation exception. We have
seen no evidence of that body of law’s accommodating the
claims of those who, de facto or otherwise, belong to no state.
C.
That leaves only two remaining claims: the postwar
retakings of In the Studio and Portrait of the Architect. The
district court had earlier sustained jurisdiction over the heirs’
claims to these pieces in de Csepel V, 613 F. Supp. 3d at 289,
300, but, in one of the decisions on appeal before us (de Csepel
VII), the district court reconsidered that determination at
Hungary’s urging and reversed, see 695 F. Supp. 3d at 34-37.
The heirs object to that reconsideration, arguing that there was
no basis for it and that the evidence supports the continued
exercise of jurisdiction.
Assessing these claims requires a fair bit of background on
each painting and the basis for the earlier determinations.
Recall that Hungary regained possession of several pieces of
art in the postwar years as part of a criminal forfeiture. See
supra Section I.B. In de Csepel V, the district court held that
those pieces were taken as part of the Hungarian government’s
criminal proceeding against István’s ex-wife Ilona Kiss for
attempting to smuggle the artworks out of Hungary, and
therefore that any connection to their Holocaust-era taking was
“severed.” 613 F. Supp. 3d at 288. But five of the pieces had
apparently been forfeited to Hungary by mistake, according to
a March 1951 letter from the then-director of the Museum of
Fine Arts, who requested termination of the criminal
attachment. Id. at 288-89; see No. 10-1261, ECF No. 106-6 at
ECF p. 38 (letter). Although no evidence demonstrated
whether the requested termination occurred, the court reasoned
that it could not conclude that those five pieces—still in
defendants’ possession—actually passed to the state in 1950 as

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30
part of the forfeiture, rather than at some later point in time for
unknown reasons.
That ambiguity mattered because one of these pieces,
Portrait of the Architect, belonged to András, whose heirs
eventually became Italian citizens—so a later taking from
Italian heirs might avoid the domestic-takings bar. de Csepel
V, 613 F. Supp. 3d at 289. For that piece, the court relied on a
December 1973 letter from the Hungarian Ministry of Culture
that asserted that all of the pieces in the Kiss forfeiture, “insofar
[as] they ha[d] not already passed into the ownership of the
State,” had become state property. Id. Because András’s
daughters were by then Italian citizens and no other evidence
indicated when Portrait of the Architect was taken, the district
court apparently dated the taking to December 1973 and
concluded that it was “an expropriation in violation of
international law over which the Court has jurisdiction.” Id.
As for In the Studio, a piece that belonged to Erzsébet (who
became a U.S. citizen), the district court noted in de Csepel V
that the piece had apparently been deposited with the Museum
of Fine Arts in the 1950s and was mentioned in a May 10, 1966,
letter to that museum from a state political department asking
whether it and several other artworks were indeed in the
museum’s possession. The Museum of Fine Arts’ response did
not confirm its possession of In the Studio. Id. at 299-300.
And, while the December 1973 letter from the Ministry of
Culture listed the piece as having passed to the Hungarian state
by virtue of the 1973 Agreement settling claims with U.S.
citizens, the court observed that as of 2020 the artwork was still
listed as “on deposit” with the Museum, suggesting that at that
point it had not yet been taken. Id. at 300. Because “any taking
after 1973 would be a taking in violation of international law
not settled by the 1973 Agreement,” the court retained
jurisdiction over In the Studio. Id.

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31
In their motion to dismiss takings claims as to
twenty-seven of the remaining artworks, defendants challenged
de Csepel V’s determinations in that regard, see Mot. to
Dismiss 11 n.4 (24-7045 J.A. 2072), which the district court
treated as a request for reconsideration, see de Csepel VII, 695
F. Supp. 3d at 34-35. An order denying sovereign immunity is
interlocutory, Exxon Mobil Corp. v. Corporacion CIMEX, S.A.,
111 F.4th 12, 22 (D.C. Cir. 2024), and the district court may
reconsider an interlocutory order “at any time before the entry
of a judgment adjudicating all the claims and all the parties’
rights and liabilities,” Fed R. Civ. P. 54(b); see Langevine v.
District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997);
United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982). In
the FSIA context, we have further explained that a district
court’s conclusion that it may exercise jurisdiction over a
foreign sovereign “is not a conclusive determination but is
instead subject to change in light of further development of the
facts.” Price, 389 F.3d at 197 (internal quotation marks and
citations omitted); see also Wye Oak Tech., Inc. v. Republic of
Iraq, 24 F.4th 686, 699 (D.C. Cir. 2022) (law-of-the-case
doctrine does not require or permit ignoring jurisdictional
defects). On appeal, the court’s legal conclusions are subject
to de novo review and its findings of fact are reviewed for clear
error. Wye Oak Tech., 24 F.4th at 700.
We see no clear error in the district court’s determination
that it could no longer exercise jurisdiction over either of these
two pieces. As for Portrait of the Architect, the court relied on
a May 1951 letter—not discussed in de Csepel V—that states
that the painting was by that date “transferred to the ownership
of the Museum.” de Csepel VII, 695 F. Supp. 3d at 35-36; see
May 8, 1951 Letter (24-7045 J.A. 2106). Plaintiffs complain
that the May letter itself relies on a document that predates the
March 1951 letter requesting termination of the criminal
attachment, and it is thus not proof that the termination request

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32
was not later granted and the painting returned. 24-7045 Heirs’
Br. 54-55. But the court did not clearly err in determining that
documentary evidence plainly indicating that ownership had
“transferred” by May 1951 trumped plaintiffs’ conjecture that
the painting was somehow later returned in response to the
March 1951 letter and then retaken after András’s daughters
became Italian citizens.
Nor did the court clearly err in concluding that In the
Studio was likely taken when it would have been subject to the
1973 Agreement settling all claims of U.S. nationals for pre-
1973 takings. Indeed, the Hungarian government listed the
piece as one of the artworks covered by that agreement, see de
Csepel VII, 695 F. Supp. 3d at 36; de Csepel V, 613 F. Supp.
3d at 300, and the court reasonably credited that clear
documentary proof of transfer over an assertion by plaintiffs’
expert that the piece was still “on deposit” with defendants, see
No. 10-1261, ECF No. 148-2 (Scholl-Tatevosyan Decl.) at
ECF pp. 12-13 & n.4. In addition, Erzsébet had sought
compensation for the painting in 1959 from an earlier claims
commission set up by the United States, and her claim was
“approved and paid in full.” de Csepel VII, 695 F. Supp. 3d at
36. Under U.S. law, determinations of that earlier commission
are “final and conclusive on all questions of law and fact and
not subject to review by any other official of the United States
or by any court by mandamus or otherwise.” 22 U.S.C.
§ 1641m. The fact that Erzsébet successfully claimed In the
Studio as taken by that point means, from the perspective of
U.S. courts, that it has been finally determined that the painting
was taken as of 1959—regardless of what other evidence might
suggest. That, in turn, means that the remaining claims based
on that painting are either subject to the 1973 Agreement or, if
the painting was taken before Erzsébet became a U.S. citizen,
barred by the domestic-takings bar. In either case, we may not
exercise jurisdiction over them.

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33
V.
For the foregoing reasons, we affirm the district court’s
dismissals of the family’s claims in its 2023 and 2024 decisions
and thus affirm the dismissal of the de Csepel litigation in its
entirety. We do so cognizant that our ruling will be a
disappointment to a family that has spent decades seeking
redress for the plunder of its property. The Herzogs were
innocent victims of war and genocide, some of the millions of
people for whom no measure of justice has ever been granted.
Their family heirlooms now hang on the walls of public
institutions in Hungary that, to date, have shown no real interest
in atoning for the depredations of that country’s World War
II−era government. The only question we face today, however,
is not whether these plaintiffs deserve justice—they surely
do—but whether Congress has granted U.S. courts the
jurisdiction to provide it. As explained above, it has not.
Unless and until it does, the responsibility for redressing such
historic wrongs must lie elsewhere.
So ordered.

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