Sovereign Immunity

• Author: International Law Group

The Societe Nationale de Chemins de Fer Francais (SNCF) was set up in the late 1930s to consolidate the French regional rail networks. During the events at issue it was under civilian control. Today, however, it is wholly owned by the French Government. The present plaintiffs are Holocaust victims and their heirs. They sued the SNCF based on its 1942-1944 role in transporting an estimated 70,000 French Jews and other "undesirables" to Nazi slave labor and death camps.

The district court initially dismissed the complaint. It ruled that the SNCF was an "agency or instrumentality of a foreign state" as defined in the Foreign Sovereign Immunities Act of 1976 (FSIA) [28 U.S.C. Section 1603(b)] and that none of the FSIA's exceptions applied. The plaintiffs appealed to the Second Circuit, challenging the retroactive application of the FSIA, and the Court remanded for further proceedings. See 2003 International Law Update 88.

The U.S. Supreme Court then granted defendants' petition for certiorari, vacated the judgment, and remanded for further consideration in light of Republic of Austria v. Altmann, 124 S.Ct. 2240 (2004). See 2004 International Law Update 91. In a dispute over Gustav Klimt paintings stolen during the World War II period, Altmann had held that the FSIA applies to conduct that took place before its enactment and even before the U.S. State Department's 1952 adoption of the restrictive theory of sovereign immunity in the "Tate Letter." The U.S. Court of Appeals for the Second Circuit now affirms the district court's dismissal of plaintiffs' complaint under the FSIA for lack of subject matter jurisdiction.

After Altmann, federal courts no longer have to rely upon the State Department's opinion in determining whether sovereign immunity should apply to past events. Such opinions will be relevant only when a court has subject matter jurisdiction but there is (1) a strong executive interest...