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The doctrine of sovereign immunity does not automatically prevent Holocaust victims and their heirs from suing a French railroad company whose trains transported tens of thousands of people to the Nazi death and slave labor camps, the 2nd U.S. Circuit Court of Appeals has ruled. Reversing a lower court judge, the 2nd Circuit said that jurisdiction might exist for a civil suit in Brooklyn, N.Y., based on alleged war crimes by the railroad company. Eastern District of New York Judge David G. Trager had dismissed the case, finding a lack of subject matter jurisdiction. But on the appeal in Abrams v. Societe Nationale Des Chemins De Fer Francais, 01-9442, the circuit found there was no information in the record to determine the State Department’s position during World War II “on the significance of the corporate form in foreign sovereign immunity determinations.” Judge Trager had ruled that the railroad (SNCF) was an “agency or instrumentality of foreign state,” as defined by the Foreign Sovereign Immunities Act of 1976, (FSIA), 28 U.S.C. �1603(b), and that the plaintiffs’ claims did not fall within any of the act’s exceptions. On the appeal, plaintiffs argued the act did not apply because the allegations in the complaint concerned events that predated the act by more than 30 years. They claimed that the issues of jurisdiction and immunity should be based on the laws that were in effect during the 1940s, which would have left SNCF without immunity because it was allegedly a corporate entity separate and distinct from the French government. Writing for the 2nd Circuit, Senior Judge Richard J. Cardamone said that before the enactment of the FSIA, “the executive branch played a prominent role in deciding whether a foreign sovereign was immune from suit in American courts.” The State Department, often at the request of a foreign power, would file “suggestions of immunity” in civil cases that were typically afforded deference by district courts, Cardamone said. He said the 2nd Circuit agreed with Judge Trager “that SNCF is an agency or instrumentality of France under the FSIA” at this point in time. However, Cardamone said the circuit needed “to resolve the question of whether that Act’s application to plaintiff’s causes of action would be impermissibly retroactive.” The U.S. Supreme Court, he said, has employed a “general presumption against retroactivity” in statutes, but that Congress has not “clearly expressed its aim” that the FSIA applies to events before its enactment. In the 2nd Circuit’s view, he said, the applicability of the FSIA would “effectively extinguish plaintiffs’ causes of action.” But the judge said another question remained open: whether the plaintiffs could have “legitimately expected” to have their claims heard in the United States before the passage of the FSIA. He said the “State Department’s treatment of ordinary litigation with friendly foreign states in times of peace does not necessarily indicate the position the Department would have taken on claims closely related to war-time crimes of an enemy, such as plaintiffs’ claims here.” He said further there was “no indication” that the “State Department would have recognized immunity in the case before us. As a consequence, without this information we cannot determine whether plaintiffs legitimately could have expected to litigate their claims in the United States.” The circuit then remanded the case for further proceedings. Senior Judge Roger J. Miner and Judge Sonia Sotomayor joined in the opinion. Professor Malvina Halberstam of the Benjamin N. Cardozo School of Law argued for the plaintiffs. Lead counsel for the plaintiffs is Harriet Tamen. Professors Andreas F. Lowenfeld and Linda J. Silberman of the New York University School of Law represented the defendant.

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