Marei Von Saher v. Norton Simon Museum of Art At

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAREI VON SAHER, No. 12-55733
Plaintiff-Appellant,
D.C. No.
v. 2:07-CV-02866-
JFW-JTL
NORTON SIMON MUSEUM OF ART AT
PASADENA; NORTON SIMON ART
FOUNDATION, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
August 22, 2013—Pasadena, California
Filed June 6, 2014
Before: Harry Pregerson, Dorothy W. Nelson,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge D.W. Nelson;
Dissent by Judge Wardlaw
2 VON SAHER V. NORTON SIMON MUSEUM
SUMMARY*
Federal Policy Conflict
The panel reversed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal of Marei Von Saher’s action claiming that
she was the rightful owner of two panels painted by Lucas
Cranach, Adam and Eve, which hang in Pasadena’s Norton
Simon Museum of Art.
Relying on California state law, Von Saher alleged that
the Nazis forcibly purchased the panels from her deceased
husband’s family in the Netherlands during World War II.
The district court held that Von Saher’s specific claims and
the remedies she sought conflicted with the United States’
express federal policy on recovered art, and the claims were
barred by conflict preemption.
The panel held that Von Saher’s claims did not conflict
with any federal policy because the Cranachs were never
subject to postwar internal restitution proceedings in the
Netherlands. The panel held that Von Saher’s claims against
the museum and the remedies she sought did not conflict with
foreign policy, and the dispute was one between private
parties. The panel remanded for further development on the
issue of whether the case implicated the act of state doctrine.
Dissenting, Judge Wardlaw would affirm the judgment of
the district court because Von Saher’s state law claims would
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VON SAHER V. NORTON SIMON MUSEUM 3
conflict with federal policy, which respects the finality of the
Netherlands’ restitution proceedings.
COUNSEL
Lawrence M. Kaye (argued), Herrick, Feinstein LLP, New
York, New York; Donald S. Burris, Burris, Schoenberg &
Walden, LLP, Los Angeles, for Plaintiff-Appellant.
Fred A. Rowley, Jr. (argued), Munger, Tolles & Olson LLP,
Los Angeles, California, for Defendant-Appellee.
Catherine Z. Ysrael, Deputy Attorney General, for Amicus
Curiae State of California.
OPINION
D.W. NELSON, Senior Circuit Judge:
This case concerns the fate of two life-size panels painted
by Lucas Cranach the Elder in the sixteenth century. Adam
and Eve (collectively, “the Cranachs” or “the panels”) hang
today in Pasadena’s Norton Simon Museum of Art (“the
Museum”). Marei Von Saher claims she is the rightful owner
of the panels, which the Nazis forcibly purchased from her
deceased husband’s family during World War II. The district
court dismissed Von Saher’s complaint as insufficient to state
a claim upon which relief can be granted, and that dismissal
is before us on appeal. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we reverse and remand.
4 VON SAHER V. NORTON SIMON MUSEUM
I. Background
In reviewing the district court’s decision, we must “accept
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to” Von Saher.
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,
1031 (9th Cir. 2008). We therefore hew closely to the
allegations in the complaint in describing the facts.
A. Jacques Goudstikker Acquires the Cranachs
For the 400 years following their creation in 1530, the
panels hung in the Church of the Holy Trinity in Kiev,
Ukraine. In 1927, Soviet authorities sent the panels to a state-
owned museum at a monastery and in 1927 transferred them
to the Art Museum at the Ukrainian Academy of Science in
Kiev. Soviet authorities then began to arrange to sell state-
owned artworks abroad and held an auction in Berlin in 1931
as part of that effort. This auction, titled “The Stroganoff
Collection,” included artworks previously owned by the
Stroganoff family. The collection also included the Cranachs,
though Von Saher disputes that the Stroganoffs ever owned
the panels. Jacques Goudstikker, who lived in the
Netherlands with his wife, Desi, and their only child, Edo,
purchased the Cranachs at the 1931 auction.
B. The Nazis Confiscate the Cranachs
Nearly a decade hence in May 1940, the Nazis invaded
the Netherlands. The Goudstikkers, a Jewish family, fled.
They left behind their gallery, which contained more than
1,200 artworks—the Cranachs among them. The family
boarded the SS Bodegraven, a ship bound for South America.
Days into their journey, Jacques accidentally fell to his death
VON SAHER V. NORTON SIMON MUSEUM 5
through an uncovered hatch in the ship’s deck. When he
died, Jacques had with him a black notebook, which
contained entries describing the artworks in the Goudstikker
Collection and which is known by art historians and experts
as “the Blackbook.” Desi retrieved the Blackbook when
Jacques died. It lists the Cranachs as part of the Goudstikker
Collection.
Meanwhile, back in the Netherlands, high-level Nazi
Reichsmarschall Herman Göring divested the Goudstikker
Collection of its assets, including the Cranachs. Jacques’
mother, Emilie, had remained in the Netherlands when her
son fled to South America with his wife and child. Göring’s
agent warned Emilie that he intended to confiscate the
Goudstikker assets, but if she cooperated in that process, the
Nazis would protect her from harm. Thus, Emilie was
persuaded to vote her minority block of shares in the
Goudstikker Gallery to effectuate a “sale” of the gallery’s
assets for a fraction of their value.
Employees of the Goudstikker Gallery contacted Desi to
obtain her consent to a sale of the majority of the outstanding
shares in the gallery, which she had inherited upon Jacques’
death. She refused. Nevertheless, the sale went through
when two gallery employees, unauthorized to sell its assets,
subsequently entered into two illegal contracts. In the first,
the “Göring transaction,” Göring “purchased” 800 of the most
valuable artworks in the Goudstikker collection. Göring then
took those pieces, including the Cranachs, from the
Netherlands to Germany. He displayed Adam and Eve in
Carinhall, his country estate near Berlin.
In the second illegal contract, the “Miedl transaction,”
Nazi Alois Miedl took over the Goudstikker business and
6 VON SAHER V. NORTON SIMON MUSEUM
properties. Miedl began operating an art dealership out of
Jacques’s gallery with the artwork that Göring left behind.
Miedl employed Jacques’s former employees as his own and
traded on the goodwill of the Goudstikker name in the art
world.
C. The Allies Recover Nazi-Looted Art, Including the
Cranachs
In the summer of 1943, the United States, the Netherlands
and other nations signed the London Declaration, which
“served as a formal warning to all concerned, and in
particular persons in neutral countries, that the Allies
intended to do their utmost to defeat the methods of
dispossession practiced by the governments with which they
[were] at war.” Von Saher v. Norton Simon Museum of Art at
Pasadena (“Von Saher I”), 592 F.3d 954, 962 (9th Cir. 2010)
(internal quotation marks and citation omitted). The Allies
“reserved the right to invalidate wartime transfers of property,
regardless of whether” those transfers took the form of open
looting, plunder or forced sales. Id.When American forces arrived on German soil in the
winter of 1944 and 1945, they discovered large caches of
Nazi-looted and stolen art hidden in castles, banks, salt mines
and caves. Von Saher I, 592 F.3d R 962. The United States
established collection points for gathering, cataloging and
caring for the recovered pieces. Id. At a collection point in
Munich, Allied forces identified the Cranachs and other items
from the Goudstikker Collection.
In order to reunite stolen works of art with their rightful
owners, President Truman approved a policy statement
setting forth the procedures governing looted artwork found
VON SAHER V. NORTON SIMON MUSEUM 7
in areas under U.S. control. Von Saher I, 592 F.3d at 962.
These procedures had two components—external restitution
and internal restitution. Under external restitution, nations
formerly occupied by the Germans would present to U.S.
authorities “consolidated lists of items taken [from their
citizens] by the Germans.” Id. These lists would include
“information about the location and circumstances of the
theft.” Id. American authorities would identify the listed
artworks and return them to their country of origin. Id. The
United States stopped accepting claims for external restitution
on September 15, 1948. Id. at 963. Under internal
restitution, each nation had the responsibility for restoring the
externally restituted artworks to their rightful owners. Id.In 1946, the Allied Forces returned the pieces from the
Goudstikker Collection to the Dutch government so that the
artworks could be held in trust for their lawful owners: Desi,
Edo and Emilie.
D. Desi’s Postwar Attempt to Recover the Cranachs
In 1944, the Dutch government issued the Restitution of
Legal Rights Decree, which established internal restitution
procedures for the Netherlands. As a condition of restitution,
people whose artworks were returned to them had to pay back
any compensation received in a forced sale.
In 1946, Desi returned to the Netherlands intending to
seek internal restitution of her property. Upon her return but
before she made an official claim, the Dutch government
characterized the Göring and Miedl transactions as voluntary
sales undertaken without coercion. Thus, the government
determined that it had no obligation to restore the looted
property to the Goudstikker family. The government also
8 VON SAHER V. NORTON SIMON MUSEUM
took the position that if Desi wanted her property returned,
she would have to pay for it, and she would not receive
compensation for missing property, the loss of goodwill
associated with the Goudstikker gallery’s name or the profits
Miedl made off the gallery during the war.
Desi decided to file a restitution claim for the property
sold in the Miedl transaction, so that she could recover her
home and some of her personal possessions. In 1952, she
entered into a settlement agreement with the Dutch
government, under protest, regarding only the Miedl
transaction. As part of that settlement, Desi repurchased the
property Miedl took from her for an amount she could afford.
The agreement stated that Desi acquiesced to the settlement
in order to avoid years of expensive litigation and due to her
dissatisfaction with the Dutch government’s refusal to
compensate her for the extraordinary losses the Goudstikker
family suffered at the hands of the Nazis during the war.
Given the government’s position that the Nazi-era sales
were voluntary and because of its refusal to compensate the
Goudstikkers for their losses, Desi believed that she would
not be successful in a restitution proceeding to recover the
artworks Göring had looted. She therefore opted not to file
a restitution claim related to the Göring transaction. The
Netherlands kept the Göring-looted artworks in the Dutch
National Collection. Von Saher alleges that title in these
pieces did not pass to the Dutch Government.
In the 1950s, the Dutch government auctioned off at least
63 of the Goudstikker paintings recovered from Göring.
These pieces did not include the Cranachs.
VON SAHER V. NORTON SIMON MUSEUM 9
E. Von Saher Recovers Artwork from the Dutch
Government
In the meantime, Desi and her son Edo became American
citizens, and Desi married August Edward Dimitri Von Saher.
When Emilie died in 1954, she left all of her assets, including
her share in the Goudstikker Gallery, to her daughter-in-law,
Desi, and her grandson, Edo. Desi then died in February
1996, leaving all of her assets to Edo. Just months later, in
July 1996, Edo died and left his entire estate to his wife,
Marei Von Saher, the plaintiff-appellant. Thus, Marei is the
sole living heir to Jacques Goudstikker.
In 1997, the State Secretary of the Dutch Government’s
Ministry of Education, Culture and Science (the “State
Secretary”) announced that the Dutch government had
undertaken an investigation into the provenance of artworks
recovered in Germany and returned to the Netherlands
following Word War II. Related to that investigation, the
government began accepting claims for recovered artworks
in its custody that had not been restituted after the war.
Around the same time, a Dutch journalist contacted Von
Saher and explained to her the circumstances regarding
Göring’s looting of the Goudstikker gallery, Desi’s efforts to
obtain restitution and the Dutch government’s continued
possession of some Goudstikker pieces in its national
collection. This conversation was the first time Von Saher
learned about these events.
In 1998, Von Saher wrote to the Dutch State Secretary
requesting the surrender of all of the property from the
Goudstikker collection in the custody of the Dutch
government. The State Secretary rejected this request,
10 VON SAHER V. NORTON SIMON MUSEUM
concluding that the postwar restitution proceedings were
conducted carefully and declining to waive the statute of
limitations so that Von Saher could submit a claim. Von
Saher made various attempts to appeal this decision without
success.
While Von Saher pursued various legal challenges, the
Dutch government created the Ekkart Committee to
investigate the provenance of art in the custody of the
Netherlands. The committee described the handling of
restitution in the immediate postwar period as “legalistic,
bureaucratic, cold and often even callous.” It also criticized
many aspects of the internal restitution process, among them
employing a narrow definition of “involuntary loss” and
requiring owners to return proceeds from forced sales as a
condition of restitution.
Upon the recommendation of the Ekkart Committee, the
Dutch government created the Origins Unknown project to
trace the original owners of the artwork in its custody. The
Dutch government also set up the Advisory Committee on the
Assessment of Restitution Applications for Items of Cultural
Value and the Second World War (“the Restitutions
Committee”) to evaluate restitution claims and to provide
guidance to the Ministry for Education, Culture and Science
on those claims. Between 2002 and 2007, the Restitution
Committee received 90 claims.
In 2004, Von Saher made a restitution claim for all of the
Goudstikker artwork in the possession of the Netherlands.
The Committee recommended that the government grant the
application with respect to all of the artworks plundered in the
Göring transaction, which the Committee deemed
VON SAHER V. NORTON SIMON MUSEUM 11
involuntary. The State Secretary adopted the Committee’s
recommendation.
Unfortunately, the Dutch government no longer had
custody of the Cranachs. In 1961, George Stroganoff
Scherbatoff (“Stroganoff”) claimed that the Soviet Union had
wrongly seized the Cranachs from his family and unlawfully
sold the paintings to Jacques Goudstikker thirty years earlier
at the “Stroganoff Collection” auction in Berlin. Thus,
Stroganoff claimed that the Dutch government had no right,
title or interest in the panels. In 1966, the Dutch government
transferred the Cranachs and a third painting to Stroganoff in
exchange for a monetary payment. The terms of this
transaction, including the amount Stroganoff paid for the
artworks, are not in the record before us. The Dutch
government did not notify Desi or Edo that Stroganoff made
a claim to the panels or that the panels were being transferred
to him. In 1971, New York art dealer Spencer Samuels
acquired the Cranachs from Stroganoff, either as an agent or
as a purchaser. Later that year, the Museum acquired the
Cranachs and has possessed them ever since.
F. Von Saher Seeks Recovery From The Museum
In 2000, a Ukranian art historian researching the
deaccession of artworks from state-owned museums in Kiev
contacted Von Saher. He explained to Von Saher that he
happened upon Adam and Eve when he visited the Museum,
and once he researched the origin of the panels, he felt
compelled to contact her. Because Cranach the Elder painted
30 similar depictions of Adam and Eve, Von Saher could not
be certain whether the diptychs in the Museum were the ones
missing from the Goudstikker collection. She contacted the
Museum about the panels, and the parties engaged in a six-
12 VON SAHER V. NORTON SIMON MUSEUM
year effort to resolve this matter informally, which proved
unsuccessful.
In May 2007, Von Saher sued the Museum, relying on
California Code of Civil Procedure Section 354.3. That
statute allowed the rightful owners of confiscated Holocaust-
era artwork to recover their items from museums or galleries
and set a filing deadline of December 31, 2010. Cal. Civ.
Proc. Code § 354.3(b), (c).
The district court dismissed the action, finding Section
354.3 facially unconstitutional on the basis of field
preemption. The court also found Von Saher’s claims
untimely.
We affirmed, over Judge Pregerson’s dissent, holding
Section 354.3 unconstitutional on the basis of field
preemption. Von Saher I, 592 F.3d at 957. Because it was
unclear whether Von Saher could amend her complaint to
show lack of reasonable notice to establish compliance with
California Code of Civil Procedure Section 338(c), we
unanimously remanded. Id. at 968–70.
Six weeks after this court issued Von Saher I, the
California legislature amended Section 338(c) to extend the
statute of limitations from three to six years for claims
concerning the recovery of fine art from a museum, gallery,
auctioneer or dealer. Cal. Civ. Proc. Code § 338(c)(3)(A). In
addition, the amendments provided that a claim for the
recovery of fine art does not accrue until the actual discovery
of both the identity and the whereabouts of the artwork. Id.The legislature made these changes explicitly retroactive. Id.§ 338(c)(3)(B).
VON SAHER V. NORTON SIMON MUSEUM 13
Von Saher filed a First Amended Complaint. The
Museum moved to dismiss, arguing that Von Saher’s specific
claims and the remedies she sought—not the amended
Section 338 itself—conflicted with the United States’ express
federal policy on recovered art. The district court agreed. It
held that the Solicitor General’s (“SG”) brief filed in the
Supreme Court in connection with Von Saher’s petition for
writ of certiorari from Von Saher I, “clarified the United
States’ foreign policy as it specifically relates to Plaintiff’s
claims in this litigation.” The district court held “that the
United States’ policy of external restitution and respect for
the outcome and finality of the Netherlands’ bona fide
restitution proceedings, as clearly expressed and explained by
the SG in his amicus curiae brief, directly conflicts with the
relief sought in Plaintiff’s action.” The court dismissed the
complaint with prejudice. Von Saher timely appeals.
II. Standard of Review
We review de novo the district court’s dismissal of Von
Saher’s complaint. Manzarek, 519 F.3d at 1030. As
discussed, we must accept the factual allegations in the
complaint as true, and we construe the complaint in the light
most favorable to Von Saher. Id. at 1031.
III. Discussion
We first must decide whether the district court erred in
finding Von Saher’s claims barred by conflict preemption. It
did.
14 VON SAHER V. NORTON SIMON MUSEUM
A. Applicable Law
“[T]he Constitution allocates the power over foreign
affairs to the federal government exclusively, and the power
to make and resolve war, including the authority to resolve
war claims, is central to the foreign affairs power in the
constitutional design.” Deutsch v. Turner Corp., 324 F.3d
692, 713–14 (9th Cir. 2003). “In the absence of some
specific action that constitutes authorization on the part of the
federal government, states are prohibited from exercising
foreign affairs powers, including modifying the federal
government’s resolution of war-related disputes.” Id. at 714.
“Foreign affairs preemption encompasses two related, but
distinct, doctrines: conflict preemption and field preemption.”
Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1071
(9th Cir. 2012) (en banc). In Von Saher I, we found Section
354.3 unconstitutional on the basis of field preemption.
592 F.3d at 965, 968. Here, however, the Museum’s
argument focuses exclusively on conflict preemption.
Specifically, the Museum contends that Von Saher’s claims,
and the remedies she seeks, are in conflict with federal policy
on the restitution of Nazi-stolen art.
“There is, of course, no question that at some point an
exercise of state power that touches on foreign relations must
yield to the National Government’s policy, given the ‘concern
for uniformity in this country’s dealings with foreign nations’
that animated the Constitution’s allocation of the foreign
relations power to the National Government in the first
place.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413
(2003) (quoting Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 427 n.25 (1964)). “The exercise of the federal
executive authority means that state law must give way where
VON SAHER V. NORTON SIMON MUSEUM 15
. . . there is evidence of a clear conflict between the policies
adopted by the two.” Id. at 421. “[T]he likelihood that state
legislation will produce something more than incidental effect
in conflict with express foreign policy of the National
Government would require preemption of the state law.” Id.
at 420. Similarly, a state law is preempted “where under the
circumstances of [a] particular case, [the challenged state
law] stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of” federal
policy. Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 373 (2000) (internal quotations marks and citations
omitted).
Courts have found individual claims, or even entire
lawsuits, preempted where a plaintiff relies on a statute of
general applicability, as Von Saher does here. See, e.g., In
re: Assicurazioni Generali S.P.A. Holocaust Ins. Litig.,
340 F. Supp. 2d 494, 501 (S.D.N.Y 2004) (holding
Garamendi “requires dismissal . . . of the benefits claims
arising under generally applicable state statutes and common
law” because “[l]itigation of Holocaust-era insurance claims,
no matter the particular source of law under which the claims
arise, necessarily conflicts with the executive policy favoring
voluntary resolution of claims through [the International
Commission on Holocaust Era Insurance Claims]”), aff’d,
592 F.3d 113 (2d. Cir. 2010); see also Mujica v. Occidental
Petrol. Corp., 381 F. Supp. 2d 1164, 1187–88 (C.D. Cal.
2005) (finding plaintiffs’ state law tort claims preempted by
the foreign policy interest in the United States’ “bilateral
relationship with the Columbian government”).
The question we must answer is whether Von Saher’s
claims for replevin and conversion, as well as the remedies
16 VON SAHER V. NORTON SIMON MUSEUM
she seeks, conflict with federal policy. We conclude that they
do not.
B. Federal Policy on Nazi-Looted Art
We start by looking to federal policy on the restitution of
Nazi-looted art. As discussed, the United States signed the
London Declaration and subsequently adopted a policy of
external restitution based on the principles in that declaration.
In Von Saher I, we noted that the United States stopped
accepting claims for external restitution on September 15,
1948, and accordingly concluded that the United States’
policy of external restitution ended that year. 592 F.3d at
963. Thus, we held that California Civil Procedure Code
Section 354.3 could not “conflict with or stand as an obstacle
to a policy that is no longer in effect.” Id.
It seems that we misunderstood federal policy. In a 2011
brief filed in the Supreme Court recommending the denial of
a petition for writ of certiorari in Von Saher I, the United
States, via the Solicitor General (“SG”), reaffirmed our
nation’s continuing and ongoing commitment to external
restitution. The SG explained that external restitution did not
end in 1948 with the deadline for submitting restitution
claims, as we had concluded in Von Saher I. Instead, “[t]he
United States established a deadline to ensure prompt
submission of claims and achieve finality in the wartime
restitution process,” and the United States has a “continuing
interest in that finality when appropriate actions have been
taken by a foreign government concerning the internal
restitution of art.”
Federal policy also includes the Washington Conference
Principles on Nazi Confiscated Art (“the Principles”),
VON SAHER V. NORTON SIMON MUSEUM 17
produced at the Washington Conference on Holocaust-Era
Art Assets in 1998. Though non-binding, the Principles
reflect a consensus reached by the representatives of 13
nongovernmental organizations and 44 governments,
including both the United States and the Netherlands, to
resolve issues related to Nazi-looted art. The Principles
provided first that “Art that has been confiscated by the Nazis
and not subsequently restituted should be identified” and that
“[e]very effort should be made to publicize” this art “in order
to locate pre-War owners and their heirs.” The signatories
agreed that “[p]re-war owners and their heirs should be
encouraged to come forward and make known their claims to
art that was confiscated by the Nazis and not subsequently
restituted.” The Principles also provided that when such heirs
are located, “steps should be taken expeditiously to achieve
a just and fair solution, recognizing this may vary according
to facts and circumstances surrounding a specific case.”
Finally, the Principles encouraged nations “to develop
national processes to implement these principles,” including
alternative dispute resolution.
Additionally, in 2009, the United States participated in the
Prague Holocaust Era Assets Conference, which produced the
“legally non-binding” Terezin Declaration on Holocaust Era
Assets and Related Issues, to which the United States and the
Netherlands agreed. The signatories reaffirmed their support
for the Washington Conference Principles and “encourage[d]
all parties[,] including public and private institutions and
individuals to apply them as well.” (emphasis added). “The
Participating States urge[d] that every effort be made to
rectify the consequences of wrongful property seizures, such
as confiscations, forced sales and sales under duress[.]” In
addition, the signatories “urge[d] all stakeholders to ensure
that their legal systems or alternative processes . . . facilitate
18 VON SAHER V. NORTON SIMON MUSEUM
just and fair solutions with regard to Nazi-confiscated and
looted art and to make certain that claims to recover such art
are resolved expeditiously and based on the facts and merits
of the claims and all the relevant documents submitted by the
parties.”
In sum, U.S. policy on the restitution of Nazi-looted art
includes the following tenets: (1) a commitment to respect the
finality of “appropriate actions” taken by foreign nations to
facilitate the internal restitution of plundered art; (2) a pledge
to identify Nazi-looted art that has not been restituted and to
publicize those artworks in order to facilitate the
identification of prewar owners and their heirs; (3) the
encouragement of prewar owners and their heirs to come
forward and claim art that has not been restituted;
(4) concerted efforts to achieve expeditious, just and fair
outcomes when heirs claim ownership to looted art; (5) the
encouragement of everyone, including public and private
institutions, to follow the Washington Principles; and (6) a
recommendation that every effort be made to remedy the
consequences of forced sales.
C. Von Saher’s Claims Do Not Conflict with Federal
Policy
Von Saher’s claims do not conflict with any federal
policy because the Cranachs were never subject to postwar
internal restitution proceedings in the Netherlands, as noted
in the complaint, the district court’s order and the opinion of
the Court of Appeals of The Hague.
Desi could have brought a claim for restitution as to all of
the artworks Göring looted in the immediate postwar period,
but she understandably chose not to do so prior to the July 1,
VON SAHER V. NORTON SIMON MUSEUM 19
1951 deadline. Per Von Saher, the “[h]istorical literature
makes clear that the post-War Dutch Government was
concerned that the immediate and automatic return of Jewish
property to its original owners would have created chaos in
the legal system and damaged the economic recovery of [t]he
Netherlands,” and “[t]his attitude was reflected in the
restitution process.” Desi was “met with hostility by the post-
War Dutch Government” and “confronted a ‘restitution’
regime that made it difficult for Jews like [her] to recover
their property.” In fact, the Dutch government went so far as
to take the “astonishing position” that the transaction between
Göring and the Goudstikker Gallery was voluntary and taken
without coercion. Not surprisingly, Desi decided that she
could not achieve a successful result in a sham restitution
proceeding to recover the artworks Göring had looted. The
Dutch government later admitted as much when the Ekkart
Committee described the immediate postwar restitution
process as “legalistic, bureaucratic, cold and often even
callous.”
Moreover, the Dutch government transferred the
Cranachs to Stroganoff fourteen years after Desi settled her
claim against Miedl. The Museum contends that this
conveyance satisfied a restitution claim Stroganoff made as
the rightful heir to the Cranachs, but the record casts doubt on
that characterization. As noted, the deadline for filing an
internal restitution claim in the Netherlands expired July 1,
1951, and Stroganoff did not assert his claim to the Cranachs
until a decade later. In addition, the Restitution of Legal
Rights Decree, which governed the Dutch internal restitution
process, was established to create “special rules regarding
restitution of legal rights and restoration of rights in
connection with the liberalization of the [Netherlands]”
following World War II. The Decree included provisions
20 VON SAHER V. NORTON SIMON MUSEUM
addressing the restitution of wrongful acts committed in
enemy territory during the war. To the extent that Stroganoff
made a claim of restitution, however, it was based on the
allegedly wrongful seizure of the paintings by the Soviet
Union before the Soviets sold the Cranachs to Jacques
Goudstikker in 1931—events which predated the war and any
wartime seizure of property. Thus, it seems dubious at best
to cast Stroganoff’s claim as one of internal restitution.
By the time Desi requested in 1998 that the Dutch
government surrender all of the Goudstikker artworks within
state control, the Cranachs had been in the Museum’s
possession for twenty-seven years. Even if Desi’s 1998
request for surrender could be construed as a claim for
restitution—made nearly 50 years after the deadline for filing
such a claim lapsed—the Cranachs were no longer in
possession of the Dutch government and necessarily fell
outside that claim.1
Though we recognize that the United States has a
continuing interest in respecting the finality of “appropriate
actions” taken in a foreign nation to restitute Nazi-confiscated
art, the Dutch government itself has acknowledged the
“legalistic, bureaucratic, cold and often even callous” nature
1
The dissent concludes that “the Cranachs were in fact subject to bona
fide internal restitution proceedings in the Netherlands in 1998–99 and
2004–06.” Dissent at 37; see also Dissent at 39 (“Von Saher did seek
‘restitution’ of the Cranachs, and her filing of the claims and the official
disposition of those claims do constitute proceedings.”). We cannot agree.
In both 1998 and 2004, Von Saher sought the return of all the Goudstikker
artworks the Dutch government had in its possession. This necessarily
excludes the Cranachs because the Netherlands had divested itself of the
panels many decades earlier. We therefore cannot conclude that Von
Saher’s 1998 and 2004 claims included the Cranachs.
VON SAHER V. NORTON SIMON MUSEUM 21
of the initial postwar restitution system. And the Dutch State
Secretary eventually ordered the return of all the Göring-
looted artworks possessed by the Netherlands—the very
artwork Desi chose not to seek in the postwar restitution
process immediately following the war—to Von Saher.
These events raise serious questions about whether the initial
postwar internal restitution process constitutes an appropriate
action taken by the Netherlands.
Nevertheless, we do not even need to go so far as
answering that query, nor should we on a motion to dismiss.
Based on Von Saher’s allegations that (1) Desi chose not to
participate in the initial postwar restitution process, (2) the
Dutch government transferred the Cranachs to Stroganoff
before Desi or her heirs could make another claim and
(3) Stroganoff’s claim likely was not one of internal
restitution, the diptych was never subject to a postwar internal
restitution proceeding in the Netherlands. Thus, allowing
Von Saher’s claim to go forward would not disturb the
finality of any internal restitution proceedings—appropriate
or not—in the Netherlands.
Not only do we find an absence of conflict between Von
Saher’s claims and federal policy, but we believe her claims
are in concert with that policy. Von Saher is just the sort of
heir that the Washington Principles and Terezin Declaration
encouraged to come forward to make claims, again, because
the Cranachs were never subject to internal restitution
proceedings. Moreover, allowing her lawsuit to proceed
would encourage the Museum, a private entity, to follow the
Washington Principles, as the Terezin Declaration urged.
Perhaps most importantly, this litigation may provide Von
Saher an opportunity to achieve a just and fair outcome to
rectify the consequences of the forced transaction with
22 VON SAHER V. NORTON SIMON MUSEUM
Göring during the war, even if such a result is no longer
capable of being expeditiously obtained.
Nor is this dispute of the sort found to involve the
international problems evident in American Insurance
Association v. Garamendi. In that case, California passed
legislation that deemed the confiscation or frustration of
World War II insurance policies for Jewish policy holders an
unfair business practice. 539 U.S. at 408–11. California’s
insurance commissioner then issued administrative subpoenas
against several subsidiaries of European insurance
companies. Id. at 411. Those insurance companies filed suit
seeing injunctive relief against the insurance commissioner of
California and challenging California’s Holocaust-era
insurance legislation as unconstitutional. Id. at 412. The
Supreme Court held the law preempted due to the “clear
conflict” between the policies adopted by the federal
government and the state of California. Id. at 419–21. As
part of that holding, the Court noted that “[v]indicating
victims injured by acts and omissions of enemy corporations
in wartime is thus within the traditional subject matter of
foreign policy in which national, not state, interests are
overriding, and which the National Government has
addressed.” Id. at 421.
Here, however, there is no Holocaust-specific legislation
at issue. Instead, Von Saher brings claims pursuant to a state
statute of general applicability. Also unlike Garamendi, Von
Saher seeks relief from an American museum that had no
connection to the wartime injustices committed against the
Goudstikkers. Nor does Von Saher seek relief from the
Dutch government itself. In fact, the record contains a 2006
letter from the Dutch Minister for Education, Culture and
Science, who confirmed that “the State of the Netherlands is
VON SAHER V. NORTON SIMON MUSEUM 23
not involved in this dispute” between Von Saher and the
Museum. The Minister also opined that this case “concerns
a dispute between two private parties.”
We are not at all persuaded, as is the dissent, that the
Solicitor General’s brief requires a different outcome.
Certainly, “there is a strong argument that federal courts
should give serious weight to the Executive Branch’s view of
[a] case’s impact on foreign policy.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 733 n.21 (2004). But there are many
reasons why we find that weight unwarranted here.
First, the SG’s brief, which urged denying the petition for
writ of certiorari in Von Saher I, focused on California Code
of Civil Procedure Section 354.3. The SG argued that we had
correctly invalidated Section 354.3 as “impermissibly
intrud[ing] upon the foreign affairs authorities of the federal
government.” The SG noted that Von Saher I did not involve
the application of a state statute of general applicability but “a
state statute that is specifically and purposefully directed at
claims arising out of transactions and events that occurred in
Europe during the Nazi era, that in many cases were
addressed in the post-War period by the United States and
European Governments[.]” That is an altogether different
issue from the one we now decide, which is whether Von
Saher’s specific claims against the Museum—in just this one
case—conflict with foreign policy. This argument is not one
the SG considered or addressed when it counseled against
granting certiorari in Von Saher I, and we decline to read any
more into the SG’s brief than is there.
It also concerns us that the SG characterizes the facts in
a way that conflicts with the complaint, the record before us
and the parties’ positions. The SG argued that Von Saher I
24 VON SAHER V. NORTON SIMON MUSEUM
“concerns artworks and transactions that, consistent with U.S.
policies, have already been the subject of both external and
internal restitution proceedings, including recent proceedings
by the Netherlands in response to the Washington Principles.”
As we have discussed, however, the Cranachs were not
subject to immediate postwar internal restitution proceedings
in the Netherlands, and Von Saher’s 1998 and 2004 claims
did not include the Cranachs.
This factual discrepancy also makes us wary of giving too
much credence to the SG’s brief because it demonstrates that
the SG goes beyond explaining federal foreign policy and
appears to make factual determinations. For instance, the
SG’s conclusion that the Cranachs have already been subject
to both internal and external restitution proceedings is not a
statement about our nation’s general approach to Nazi-looted
art. Instead, the SG concludes that in this specific case
involving these specific parties, external restitution took place
as contemplated by the United States. This looks much like
a factual finding in a matter in which we must accept the
allegations in the complaint as true. While we recognize and
respect the SG’s role in addressing how a matter may affect
foreign policy, we do not believe this extends to making
factual findings in conflict with the allegations in the
complaint, the record and the parties’ arguments.
Most worrisome, the SG admitted that “[t]he United
States does not contend that the fact that the Cranachs were
returned to the Dutch government pursuant to the external
restitution policy would be sufficient on its own force to bar
litigation if, for example, the Cranachs had not been subject
(or potentially subject to) bona fide restitution proceedings in
the Netherlands.” And therein lies the most serious and
troublesome obstacle to our relying too heavily on the SG’s
VON SAHER V. NORTON SIMON MUSEUM 25
brief. Von Saher alleges, the Museum agrees and the record
shows that the Cranachs were never subject to immediate
postwar internal restitution proceedings in the Netherlands.
Though the paintings were potentially subject to restitution
proceedings had Desi opted to participate in the postwar
internal restitution process, she chose not to engage in what
she felt was an unjust and unfair proceeding. Years later, the
Dutch government itself undermined the legitimacy of that
restitution process by describing it as “bureaucratic, cold and
often even callous,” and by eventually restituting to Von
Saher all of the artworks Göring had looted that were still
held by the Netherlands.
It would make little sense, then, for us to conclude that
Von Saher’s claims against the Museum cannot go forward
just because the United States returned the Cranachs to the
Netherlands as part of the external restitution process, for we
know and we cannot ignore, that the Cranachs were never
subject to postwar internal restitution proceedings and that
the 1998 and 2004 proceedings excluded the Cranachs. We
therefore do not find convincing the SG’s position—
presented in a brief in a different iteration of this case that
raised different arguments, that involved different sources of
law and that seems to have misunderstood some of the facts
essential to our resolution of this appeal.
Von Saher’s claims against the Museum and the remedies
she seeks do not conflict with foreign policy. This matter is,
instead, a dispute between private parties. The district court
erred in concluding otherwise.
26 VON SAHER V. NORTON SIMON MUSEUM
D. Act of State
We are mindful that the litigation of this case may
implicate the act of state doctrine, though we cannot decide
that issue definitively on the record before us. We remand for
further development of this issue.
“Every sovereign state is bound to respect the
independence of every other sovereign state, and the courts of
one country will not sit in judgment on the acts of the
government of another, done within its own territory.”
Underhill v. Hernandez, 168 U.S. 250, 252 (1897). “[T]he
act within its own boundaries of one sovereign state cannot
become the subject of re-examination and modification in the
courts of another. Such action when shown to have been
taken, becomes, . . . a rule of decision for the courts of this
country.” Ricaud v. Am. Metal Co., 246 U.S. 304, 310
(1918).
“In every case in which . . . the act of state doctrine
appli[es], the relief sought . . . would have required a court in
the United States to declare invalid the official act of a
foreign sovereign performed within its own territory.” W.S.
Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., Int’l,
493 U.S. 400, 405 (1990). This doctrine is not “inflexible
and all-encompassing,” Banco Nacional de Cuba, 376 U.S.
at 428, nor is it “some vague doctrine of abstention but a
principle of decision binding on federal and state courts
alike,” W.S. Kirkpatrick, 493 U.S. at 406 (internal quotation
marks and citation omitted). The justification for invoking
the act of state doctrine “depends greatly on the importance
of the issue’s implications for our foreign policy.” Northrop
Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1047 (9th
Cir. 1983).
VON SAHER V. NORTON SIMON MUSEUM 27
Von Saher seeks as remedies a declaration that she is the
rightful owner of the panels and an order both quieting title
in them and directing their immediate delivery to her.
According this kind of relief may implicate the act of state
doctrine. See Oetjen v. Central Leather Co., 246 U.S. 297,
303–04 (1918) (holding act of state doctrine barred American
courts from considering the sale of animal hides by the
Mexican government); Ricaud, 246 U.S. at 310 (holding act
of state doctrine prohibited American courts from considering
the seizure of an American citizen’s property by the Mexican
government for military purposes).
Thus, it becomes important to determine whether the
conveyance to Stroganoff constituted an official act of a
sovereign, which might trigger the act of state doctrine. W.S.
Kirkpatrick, 493 U.S. at 406 (“Act of state issues only arise
when a court must decide—that is, when the outcome of the
case turns upon—the effect of official action by a foreign
sovereign.”). We cannot answer this question because the
record is devoid of any information about that transfer. For
her part, Von Saher alleges that the Netherlands “wrongfully
delivered the Cranachs to Stroganoff as part of a sale
transaction,” and for the purpose of this appeal, we must
accept the allegations in her complaint as true, Manzarek,
519 F.3d at 1031. She also contends that no one ever referred
to the transfer of the Cranachs to Stroganoff as attendant to
“restitution proceedings” until we described the facts that way
in Von Saher I. 592 F.3d at 959. In her view, the Museum
has since adopted that characterization of the facts. The
district court is best-equipped to determine which of these
competing characterizations is correct.
If on remand, the Museum can show that the Netherlands
returned the Cranachs to Stroganoff to satisfy some sort of
28 VON SAHER V. NORTON SIMON MUSEUM
restitution claim, that act could “constitute a considered
policy decision by a government to give effect to its political
and public interests . . . and so [would be] . . . the type of
sovereign activity that would be of substantial concern to the
executive branch in its conduct of international affairs.”
Clayco Petrol. Corp. v. Occidental Petrol. Corp., 712 F.2d
404, 406–07 (9th Cir. 1983) (per curiam) (internal quotations
and citations omitted); see also Alfred Dunhill of London, Inc.
v. Rep. of Cuba, 425 U.S. 682, 695 (1976) (noting foreign
government had not offered a government “statute, decree,
order, or resolution” showing that the government action was
undertaken as a “sovereign matter”); but see id. at 406–07
(noting the Third Circuit held that the granting of patents by
a foreign sovereign would not implicate the act of state
doctrine); Timberlane Lumber Co. v. Bank of Am., N.T. and
S.A., 549 F.2d 597, 607–08 (9th Cir. 1976) (holding judicial
proceedings in another country initiated by a private party
were not the sort of sovereign acts that would require
deference under the act of state doctrine). On remand, the
district court also should consider whether the conveyance of
the Cranachs to Stroganoff met public or private interests.
Clayco, 712 F.2d at 406 (holding that “without sovereign
activity effectuating public rather than private interests, the
act of state doctrine does not apply”) (internal quotation
marks and citation omitted).
Even if the district court finds that the transfer of the
Cranachs is a sovereign act, it also must determine whether
any exception to the act of state doctrine applies. A plurality
of the Supreme Court has noted that an exception may exist
for “purely commercial acts” in situations where “foreign
governments do not exercise powers peculiar to sovereigns”
and instead “exercise only those powers that can be exercised
by private citizens.” Alfred Dunhill, 425 U.S. at 704.
VON SAHER V. NORTON SIMON MUSEUM 29
We have not yet decided whether to adopt a commercial
exception in our Circuit. Clayco, 712 F.2d at 408. When
presented with this issue previously, we held that even if a
commercial exception to the act of state doctrine existed, it
did not apply because a private citizen could not have granted
a concession to exploit natural resources—the government
action at issue in Clayco. Id.On the present record, we are unable to determine
whether a commercial exception would apply in this case.
Thus, it is unnecessary for us to determine whether our court
recognizes a commercial exception to the act of state
doctrine.
Other exceptions to the act of state doctrine may apply.
For example, the Hickenlooper Amendment provides that the
act of state doctrine does not apply to a taking or confiscation
(1) after January 1, 1959, (2) by an act of state (3) in violation
of international law. 22 U.S.C. § 2370(e)(2). The Dutch
government kept possession of the Cranachs in 1951 when
Desi opted not to seek restitution for the artworks Göring had
confiscated during the war. Though the government took
possession of the pieces before the effective date of the
Hickenlooper Amendment, the Dutch government transferred
the Cranachs to Stroganoff in 1966. That conveyance may
constitute a taking or confiscation from Desi. Again, we
cannot determine from the record whether that transaction
was a commercial sale or whether the government transferred
the Cranachs to Strogranoff to restore his rights in some way.
That distinction may bear on whether the Dutch government
confiscated the artworks from Desi, via the transfer to
Stroganoff, in violation of international law. The district
court should consider this issue on remand.
30 VON SAHER V. NORTON SIMON MUSEUM
We recognize that this remand puts the district court in a
delicate position. The court must use care to “limit[] inquiry
which would impugn or question the nobility of a foreign
nation’s motivation.” Clayco, 712 F.2d at 407 (internal
quotation marks and citation omitted). The court also cannot
“resolve issues requiring inquiries . . . into the authenticity
and motivation of the acts of foreign sovereigns.” Id. at 408(internal quotation marks and citations omitted).
Nevertheless, this case comes to us as an appeal from a
dismissal for failure to state a valid claim. The Museum has
not yet developed its act of state defense, and Von Saher has
not had the opportunity to establish the existence of an
exception to that doctrine should it apply. Though this
remand necessitates caution and prudence, we believe that the
required record development and analysis can be
accomplished with faithfulness to the limitations imposed by
the act of state doctrine.
REVERSED and REMANDED.
WARDLAW, Circuit Judge, dissenting:
The United States has determined that the Netherlands
afforded the Goudstikker family an adequate opportunity to
recover the artwork that is the subject of this litigation. Our
nation’s foreign policy is to respect the finality of the
Netherlands’ restitution proceedings and to avoid
involvement in any ownership dispute over the Cranachs.
Because entertaining Marei Von Saher’s state law claims
would conflict with this federal policy, I respectfully dissent.
VON SAHER V. NORTON SIMON MUSEUM 31
I.
The United States has articulated the foreign policy
applicable to the very artwork and transactions at issue here.
When Von Saher petitioned for certiorari from our court’s
decision rejecting her claims under Cal. Civ. Proc. Code
§ 354.3 on preemption grounds, the Supreme Court invited
the Solicitor General to express the position of the United
States on the question there presented. The United States set
forth its policy in an amicus curiae brief signed by Harold
Hongju Koh, then the Legal Adviser to the Department of
State, and Neal Kumar Katyal, then the Acting Solicitor
General.
The United States explained that its post-World War II
policy of “external restitution” did not end on September 15,
1948, as our court had determined, but remains extant. After
World War II, the United States determined that it would
return private property expropriated by the Nazis to its
country of origin – that is, “externally” – rather than to its
private owners. In turn, the country of origin was responsible
for returning the property to its lawful owners through
“internal” restitution proceedings. A central purpose of this
policy was to avoid entangling the United States in difficult,
long-lasting disputes over private ownership. For this reason,
the United States expressed its “continuing interest” in the
finality of external restitution, “when appropriate actions
have been taken by a foreign government concerning the
internal restitution of art that was externally restituted to it by
the United States following World War II.”
The United States and the international community have
also recognized, however, that some countries’ internal
restitution processes were deficient. Accordingly, pursuant
32 VON SAHER V. NORTON SIMON MUSEUM
to such non-binding international agreements as the
Washington Principles and the Terezin Declaration, the
United States supports ongoing efforts to restore expropriated
art to Holocaust victims and their heirs. Furthermore, the
United States does not categorically insist upon the finality of
its postwar external restitution efforts. Our nation maintains
a continuing interest in the finality of external restitution only
when the country of origin has taken “appropriate” internal
restitution measures. The United States has a “substantial
interest in respecting the outcome” of “bona fide”
proceedings conducted by other countries. Thus, the policy
of the United States, as expressed in its Supreme Court brief,
is that World War II property claims may not be litigated in
U.S. courts if the property was “subject” or “potentially
subject” to an adequate internal restitution process in its
country of origin.
The United States not only set forth these general policy
principles in its brief before the Supreme Court, but also
explained their application to the very artwork and historical
facts presented by this case. According to the United States,
the Cranachs “have already been the subject of both external
and internal restitution proceedings, including recent
proceedings by the Netherlands in response to the
Washington Principles.” In the federal government’s
considered judgment, these proceedings were “bona fide,” so
their finality must be respected. Because the Cranachs were
“subject (or potentially subject) to bona fide internal
restitution proceedings in the Netherlands,” our nation’s
ongoing interest in the finality of external restitution “bar[s]
litigation” of the Goudstikkers’ claims in U.S. courts. Simply
put, the United States has clearly stated its foreign policy
position that it will not be involved in adjudicating ownership
disputes over the Cranachs.
VON SAHER V. NORTON SIMON MUSEUM 33
II.
The Constitution allocates power over foreign affairs
exclusively to the federal government, and the power to
resolve private parties’ war claims is “central to the foreign
affairs power in the constitutional design.” Deutsch v. Turner
Corp., 324 F.3d 692, 714 (9th Cir. 2003). Federal foreign
policy preempts Von Saher’s common law claims if “there is
evidence of clear conflict” between state law and the policies
adopted by the federal Executive. Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 421 (2003). We must determine
whether, “under the circumstances,” Von Saher’s state law
action “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives” of our national
foreign policy concerning the resolution of World War II
claims. Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 373 (2000) (internal quotation marks omitted).
A.
In my view, Von Saher’s attempt to recover the Cranachs
in U.S. courts directly thwarts the central objective of U.S.
foreign policy in this area: to avoid entanglement in
ownership disputes over externally restituted property if the
victim had an adequate opportunity to recover it in the
country of origin. The majority concludes that Von Saher’s
claims do not conflict with federal policy because the
Cranachs were never subject to any restitution proceedings in
the Netherlands. As the United States explained in its amicus
brief, however, the relevant issue is whether the Cranachs
were subject or potentially subject to bona fide internal
proceedings. The majority fails to acknowledge the
Executive’s clear determination that the Goudstikkers had an
adequate opportunity to assert their claim after the war.
34 VON SAHER V. NORTON SIMON MUSEUM
It is beyond dispute that the Cranachs were “potentially
subject” to internal restitution proceedings in the Netherlands
in the years following World War II. Desi Goudstikker could
have filed a claim for the Cranachs with the Dutch
government before the 1951 deadline lapsed. She chose not
to do so because she believed she would not be treated fairly.
As the amicus brief explained:
In this case, Ms. Goudstikker settled with the
Dutch government in 1952, and that
settlement did not provide for the return of
artworks like the Cranachs that had been
acquired by [Hermann] Göring. When
petitioner brought a Dutch restitution
proceeding in 1998, the State Secretary found
that “directly after the war – even under
present standards – the restoration of rights
was conducted carefully.” Petitioner sought
review of that decision in the Court of
Appeals for the Hague, which found that at
the time of the 1952 settlement Ms.
Goudstikker “made a conscious and well
considered decision to refrain from asking for
restoration of rights with respect to the Göring
transaction.”
Thus, the only question is whether the internal restitution
proceedings Desi forewent were bona fide.1 If they were, the
United States has an ongoing interest in their finality and in
the finality of the Cranachs’ external restitution to the
1
The majority correctly explains the U.S. government’s position that
external restitution alone is not “sufficient of its own force” to bar civil
litigation in U.S. courts.
VON SAHER V. NORTON SIMON MUSEUM 35
Netherlands, and U.S. foreign policy expressly bars Desi’s
granddaughter-in-law from reviving Desi’s unasserted claim
six decades later in federal district court.
The United States has determined as a matter of foreign
policy that the postwar process in which Desi declined to
participate was bona fide. As the United States explained in
its brief, “As both the 1998 and 2004 restitution proceedings
reflect, the Dutch government has afforded [Von Saher] and
her predecessor adequate opportunity to press their claims,
both after the War and more recently.” The majority
concludes that this question has not been decisively
determined only by finding ways to disavow the State
Department’s prior representations to the Supreme Court in
this case.
But we lack the authority to resurrect Von Saher’s claims
given the expressed views of the United States. The
sufficiency of the Netherlands’ 1951 internal restitution
process is a quintessential policy judgment committed to the
discretion of the Executive. “[I]t is for the political branches,
not the Judiciary, to assess practices in foreign countries and
to determine national policy in light of those assessments.”
Munaf v. Geren, 553 U.S. 674, 700–01 (2008). Just as we
may not “second-guess” the Executive’s assessment that a
prisoner is unlikely to be tortured if transferred to an Iraqi
prison, id. at 702, we may not displace the Executive’s
assessment that the Netherlands’ postwar proceedings were
adequate. For the federal courts to contradict the State
Department on this issue, as is necessary to decide this appeal
in Von Saher’s favor, would “compromise[] the very capacity
of the President to speak for the Nation with one voice in
36 VON SAHER V. NORTON SIMON MUSEUM
dealing with other governments.”2 Garamendi, 539 U.S. at
424 (internal quotation marks omitted).
The majority strongly suggests that the federal courts
should determine the bona fides of the Netherlands’ 1951
internal restitution process. It acknowledges that the
Cranachs were “potentially subject to restitution proceedings”
that Desi Goudstikker found unfair. It notes, however, that
the Dutch government later “undermined the legitimacy of
that restitution process by describing it as ‘bureaucratic, cold
and often even callous.’” The majority then asserts that it
does not “find convincing” the United States’ statement of its
foreign policy because it was “presented in a brief in a
different iteration of this case that raised different arguments,
that involved different sources of law and that seems to have
misunderstood some of the facts essential to our resolution of
this appeal.”
But we are not at liberty to find that the State
Department’s articulation of U.S. foreign policy is not
“convincing.” Cf. Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S. Ct. 1421, 1427 (2012) (finding a question justiciable
because “[t]he federal courts are not being asked to supplant
a foreign policy decision of the political branches”). And it
is immaterial whether the Executive expressed our nation’s
policy in a Supreme Court amicus brief concerning field
2
I would not reach the question of whether Von Saher’s claims are
barred by the act of state doctrine because I would affirm the district
court’s dismissal of the complaint on the basis that her claims are
preempted. I note, however, that adjudicating whether the Netherlands’
1951 proceedings were bona fide may implicate the act of state doctrine
because “the outcome” of this inquiry “turns upon[] the effect of official
action by a foreign sovereign.” W.S. Kirkpatrick & Co. v. Envtl. Tectonics
Corp., Int’l, 493 U.S. 400, 406 (1990).
VON SAHER V. NORTON SIMON MUSEUM 37
preemption, a district court merits brief concerning conflict
preemption, an executive agreement unconnected to any
litigation, or an official’s testimony before Congress. See
Garamendi, 539 U.S. at 416 (“[V]alid executive agreements
are fit to preempt state law . . . .”); id. at 421 (quoting
Ambassador Randolph M. Bell’s statement of U.S. foreign
policy in congressional testimony). The majority is correct
that we have the discretion to defer, or not, to “the Executive
Branch’s view of [a] case’s impact on foreign policy.” Sosa
v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004). We have
no authority, however, to decide what U.S. foreign policy is.
That is the exclusive responsibility of the political branches.
See Munaf, 553 U.S. at 700–02. Here, the Executive has
clearly expressed its policy judgment that the process in
which Desi declined to participate was adequate. That should
be the end of the matter.
B.
The majority further errs by overlooking that the
Cranachs were in fact subject to bona fide internal restitution
proceedings in the Netherlands in 1998–99 and 2004–06.
In 1998, unaware that the Netherlands no longer
possessed the Cranachs, Von Saher filed a claim to recover
all of the Goudstikker artworks still in the Dutch
government’s possession. The State Secretary found that
Von Saher’s claim was untimely and declined to waive the
statute of limitations because “directly after the war – even
under present standards – the restoration of rights was
conducted carefully.” A Dutch appellate court determined it
had no jurisdiction to entertain an appeal from this decision
and declined to exercise its ex officio authority to grant relief
38 VON SAHER V. NORTON SIMON MUSEUM
because Desi had “made a conscious and well considered
decision” not to pursue restitution after the war.
In 2004, after the Netherlands revised its restitution policy
to adopt a more equitable approach in response to the
Washington Principles, Von Saher filed another claim. A
governmental advisory committee recommended that the
claim be granted, reasoning that the claim was “still
admissible” despite the prior decisions by the State Secretary
and the appellate court. The State Secretary rejected this
reasoning, finding that Von Saher’s “restoration of rights”
had been “settled” as a legal matter and that her claim fell
outside the scope of the Dutch restitution policy. The State
Secretary nonetheless decided, as a matter of discretion, to
return to Von Saher all of the Goudstikker artworks still in
the government’s possession. The Netherlands transferred to
Von Saher more than two hundred of the 267 artworks she
sought – but not the Cranachs, which had long ago been
moved to California.3
The majority implausibly concludes that these were not
restitution proceedings at all because Von Saher’s restitution
claims were time-barred and because the Cranachs were
outside their scope. As an initial matter, the United States has
expressly determined that the Cranachs were subject to a
“1998 restitution proceeding” and a “2004 restitution
3
In 1961, George Stroganoff-Scherbatoff, heir to the Russian Stroganoff
dynasty, filed a restitution claim for the Cranachs in the Netherlands. He
asserted that the Cranachs had been wrongfully seized from his family by
Soviet authorities and then unlawfully auctioned off to the Goudstikkers.
The Dutch government transferred the Cranachs to Stroganoff in 1966.
Von Saher alleges that these were not restitution proceedings, but simply
a sale, and that the Stroganoffs never owned the Cranachs. In 1971,
Stroganoff sold the Cranachs to the Norton Simon Art Foundation.
VON SAHER V. NORTON SIMON MUSEUM 39
proceeding” in the Netherlands, and that our nation “has a
substantial interest in respecting the outcome of that nation’s
proceedings.” This policy assessment is probably sufficient
to foreclose the majority’s contrary view.4 See Munaf,
553 U.S. at 702. Even if it is not, Von Saher did seek
“restitution” of the Cranachs, and her filing of claims and the
official disposition of those claims do constitute
“proceedings.” See BLACK’S LAW DICTIONARY 1428 (9th ed.
2009) (defining “restitution” as “[r]eturn or restoration of
some specific thing to its rightful owner or status”); id. at
1324 (defining “proceeding” as “[t]he regular and orderly
progression of a lawsuit, including all acts and events
between the time of commencement and the entry of
judgment,” or “[a]ny procedural means for seeking redress
from a tribunal or agency”). That Von Saher did not succeed
in obtaining her requested relief with respect to the Cranachs
does not imply that there were no proceedings pertaining to
the Cranachs.
Von Saher’s state law claims conflict with our nation’s
“substantial” policy interest in respecting the finality of these
two more recent rounds of Dutch proceedings. As the district
4
The majority attempts to draw an unworkable distinction between
“explaining federal foreign policy” and “mak[ing] factual determinations.”
Our foreign policy often relies on factual assumptions inseparable from
the policy itself. For instance, the federal foreign policy that “Iran’s
pursuit of nuclear weapons is unacceptable” entails a factual assumption
that Iran is pursuing nuclear weapons. U.S. Strategic Objectives Towards
Iran: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7
(2011) (statement of Wendy R. Sherman, Under Secretary of State for
Political Affairs). Here, the federal foreign policy that the finality of the
Netherlands’ prior restitution proceedings in this case should be respected
entails a factual assumption that those proceedings occurred. Von Saher’s
attempt to plead to the contrary simply highlights why entertaining her
claims would conflict with federal policy.
40 VON SAHER V. NORTON SIMON MUSEUM
court explained, these proceedings collectively determined
that Von Saher was not entitled to the Cranachs’ restitution as
of right, but that the Cranachs should nonetheless be returned
to her as a matter of discretion if the Netherlands possessed
them. Put differently, Dutch authorities finally adjudicated
Von Saher’s legal claim to the Cranachs on the grounds that
it was procedurally defaulted as a matter of Dutch law. As is
routinely recognized in other contexts, allowing Von Saher to
relitigate these claims in U.S. courts would necessarily
undermine the finality of the Netherlands’ prior proceedings.
Cf., e.g., Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012)
(noting that federal litigation concerning claims defaulted in
state court undermines the finality of state adjudication).
This is precisely what our nation’s foreign policy requires us
to avoid.
Because the Cranachs were potentially subject to
restitution proceedings initiated by Desi in 1951 and actually
subject to restitution proceedings initiated by Von Saher in
1998 and 2004, and because we lack the authority to
invalidate the United States’ policy judgment that all of these
proceedings were bona fide, I would conclude that federal
foreign policy preempts Von Saher’s state law claims.
III.
During their campaign of atrocities in Europe, the Nazis
stole precious cultural heritage as they systematically
destroyed millions of innocent human lives. Shortly after the
Nazi invasion of the Netherlands in 1940, Hermann Göring
expropriated a historically significant artwork from the
Goudstikker family. Perhaps as restitution for earlier wrongs
by another totalitarian regime, George Stroganoff-Scherbatoff
later obtained the artwork from the Dutch government in
VON SAHER V. NORTON SIMON MUSEUM 41
1966. An acclaimed Southern California museum then
acquired the Cranachs in 1971, presumably at a substantial
price. Today, they hang in the gallery of the Norton Simon
without the consent of the Goudstikkers’ sole heir.
Marei Von Saher and the Museum are both standing on
their rights to the Cranachs. Their dispute spans decades and
continents, and it cannot be resolved in an action under the
laws of California or any other U.S. state. The United States
has determined, as a matter of its foreign policy, that its
involvement with the Cranachs ended when it returned them
to the Netherlands in 1945 and the Dutch government
afforded the Goudstikkers an adequate opportunity to reclaim
them. This foreign policy decision also binds the federal
courts, and it should end our many years of involvement with
the Cranachs as well. I would affirm the judgment of the
district court.