With the recent decision in the Baron Herzog case dismissing some claims but allowing the bulk of the case to go forward, the next step is determining what issues can be appealed now.
Typically, only a final judgment can be appealed. That is, even if the defendant was right about why the case should have been dismissed initially, it ordinarily has to wait until the whole case is over—and it loses—to appeal. Only where there are specific exceptions, usually created by a statute, can a defendant appeal immediately.
One such statute is the Foreign Sovereign Immunities Act, which exempts from suit in the United States foreign sovereigns and their “instrumentalities,” or agents. The Hungarian defendants moved to dismiss the Herzog case by citing the FSIA, but the judge disagreed, finding that one of the statute’s exceptions for takings in violation of international law applied, assuming that the plaintiffs’ allegations are true (as the judge must this early in the case). This continues a recent trend broadening the application of the FSIA, particularly restitution cases. On the theory that a foreign nation entitled to immunity should not have to litigate and lose to establish on appeal that it was entitled to immunity, the Hungarian defendants have a right to appeal that part of the recent order immediately.
What they do not have is an absolute right to appeal the rest of the arguments on which the judge ruled against them: treaty, statutes of limitations, and forum-related arguments, chiefly. Thus, they have to convince the trial judge to “certify” those questions for appeal. They have now done so, arguing that efficiency favors a consolidate appeal.
They have cited strong precedent for doing so in an FSIA case. If the issues are certified it does not affect the merits of the appeal, however, only the questions that the Court of Appeals will consider. The plaintiffs are due to file their brief in opposition within a month: stay tuned.
