## Facts

- In 1944, after Germany invaded Hungary, the Hungarian government compelled Hungarian Jews to surrender valuable personal property, which was consolidated and loaded onto the “Hungarian Gold Train.”
- In 1945, the U.S. Army intercepted and seized the train near Salzburg, Austria, taking custody of its contents.
- Plaintiffs alleged the property remained identifiable (including by labeled boxes), but the United States later treated return to owners as infeasible, and the property was sold, requisitioned, or otherwise lost while in U.S. control.
- Plaintiffs alleged they did not learn key facts about U.S. handling and disposition of the property until 1999, after release of a government historical report.
- Plaintiffs (as a putative class) sued the United States alleging (1) a Fifth Amendment taking, (2) breach of an implied-in-fact bailment contract, and (3) violations of conventional and customary international law.
- The United States moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing sovereign immunity, untimeliness, and failure to state a claim.

## Issues

1. Whether the claims were time-barred such that sovereign immunity deprived the court of subject-matter jurisdiction.
2. Whether sovereign immunity barred the international law claim, and whether any waiver permitted it to proceed.
3. Whether mostly non-citizen plaintiffs lacking substantial connections to the United States could state a Fifth Amendment takings claim.
4. Whether the complaint plausibly alleged an implied-in-fact bailment contract and its breach.

## Decision

- The motion to dismiss was granted in part and denied in part.
- The court held that, based on the pleaded allegations, equitable tolling prevented dismissal as untimely at the Rule 12 stage as to the claims deemed otherwise viable.
- The court dismissed the Fifth Amendment takings claim with prejudice for failure to state a claim.
- The court allowed the implied-in-fact bailment claim to proceed.
- The court allowed the international law claim to proceed only to the extent plaintiffs sought non-monetary relief under the Administrative Procedure Act; otherwise it was barred by sovereign immunity.

## Legal Principles

- When a limitations defense is tied to sovereign immunity, dismissal at the pleading stage is improper if the complaint plausibly alleges facts supporting equitable tolling.
- Absent a statutory waiver, sovereign immunity bars claims against the United States; the Administrative Procedure Act waives immunity for certain suits seeking non-monetary relief challenging unlawful federal action.
- Non-citizens without substantial connections to the United States may be unable to invoke the Fifth Amendment’s protections in this context, requiring dismissal of a takings claim.
- A plausible implied-in-fact bailment claim may be stated where the government is alleged to have accepted possession of identifiable property under circumstances supporting an obligation to safeguard and return it.

## Conclusion

The court permitted the case to proceed on an implied-in-fact bailment theory and on a narrowed international-law theory for non-monetary APA relief, while rejecting a Fifth Amendment takings theory and declining to dismiss the surviving claims as untimely at the pleading stage due to equitable tolling.


Rosner v. United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002)