Cassirer v. Kingdom of Spain

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAUDE CASSIRER, 

Plaintiff-Appellee,

v.

KINGDOM OF SPAIN, a foreign state,

Defendant, No. 06-56325

and  D.C. No.

05-CV-03459-GAF

THYSSEN-BORNEMISZA COLLECTION

FOUNDATION, an agency or

instrumentality of the Kingdom of

Spain,

Defendant-Appellant.



CLAUDE CASSIRER, 

Plaintiff-Appellee,

v.

KINGDOM OF SPAIN, a foreign state, No. 06-56406

Defendant-Appellant,

and  D.C. No.

CV-05-03459-GAF

THYSSEN-BORNEMISZA COLLECTION OPINION

FOUNDATION, an agency or

instrumentality of the Kingdom of

Spain,

Defendant.



Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

11457

11458 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Argued and Submitted

March 24, 2010—San Francisco, California

Filed August 12, 2010

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,

Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman,

William A. Fletcher, Ronald M. Gould, Richard A. Paez,

Consuelo M. Callahan, Carlos T. Bea and N. Randy Smith,

Circuit Judges.

Opinion by Judge Rymer;

Dissent by Judge Gould

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11461

COUNSEL

Thaddeus J. Stauber, (argued), Walter T. Johnson, Nixon Pea-

body LLP, Los Angeles, California, for defendants-appellants

Thyssen-Bornemisza Collection Foundation. William M. Bar-

ron, Alston & Bird LLP, New York, New York; Anthony A.

De Corso, Beck, De Corso, Daly, Kreindler & Harris, Los

Angeles, California, for defendant-appellant Kingdom of

Spain.

Stuart R. Dunwoody, Davis Wright Tremaine LLP, Seattle,

Washington, for the plaintiff-appellee.

OPINION

RYMER, Circuit Judge:

Claude Cassirer is an American citizen whose grandmoth-

er’s Pissarro painting was allegedly confiscated in 1939 by an

agent of the Nazi government in Germany because she was a

Jew. He filed suit in federal district court to recover the paint-

ing, or damages, from the Kingdom of Spain and the Thyssen-

Bornemisza Collection Foundation, an instrumentality of

Spain, which now claims to own the painting. Spain and the

Foundation moved to dismiss, asserting, among other things,

sovereign immunity pursuant to the Foreign Sovereign Immu-

nities Act (FSIA), 28 U.S.C. § 1602, et seq. The FSIA makes

a foreign state immune from suit in the courts of the United

States unless an exception applies. The district court denied

the motions, Cassirer v. Kingdom of Spain, 461 F. Supp. 2d

1157 (C.D. Cal. 2006), and also denied motions to dismiss for

lack of a case or controversy, personal jurisdiction, and proper

11462 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

venue. Spain and the Foundation appealed, raising most of

these issues.

Cassirer relies on the “international takings” or “expropria-

tion” exception in the FSIA that confers subject matter juris-

diction over a foreign state when “rights in property taken in

violation of international law” are at issue; the property is

owned “by an agency or instrumentality of the foreign state”;

and the instrumentality “is engaged in a commercial activity

in the United States.” 28 U.S.C. § 1605(a)(3). Spain and the

Foundation maintain that this exception is not applicable

because the painting was taken in violation of international

law by Germany, not by either of them, and because the

Foundation is not engaged in commercial activity in the

United States sufficient to trigger the exception. Spain con-

tends that Cassirer should have exhausted remedies in Ger-

many or Spain, but failed to do so. Spain also contests the

existence of a case or controversy, while the Foundation chal-

lenges the exercise of personal jurisdiction.

Our review is constrained because this is an appeal before

final judgment has been entered. Generally, we may review

only final decisions of a district court, but our jurisdiction also

extends to a small category of collateral orders that are sepa-

rate from the merits and can’t effectively be reviewed on

appeal from a final judgment. A ruling that denies sovereign

immunity is such an order. Consequently, we may hear the

appeal taken from the district court’s order denying the

motions to dismiss for lack of subject matter jurisdiction

based on sovereign immunity. But its decision declining to

dismiss the action for lack of personal jurisdiction and a case

or controversy is fully reviewable on appeal after judgment.

For this reason we have no appellate jurisdiction over these

issues, and will dismiss the appeal as to them.

On the issue of sovereign immunity, we conclude that

§ 1605(a)(3) does not require the foreign state against whom

the claim is made to be the one that took the property. We are

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11463

satisfied that the record supports the district court’s finding of

a sufficient commercial activity in the United States by the

Foundation. The statute does not mandate that the plaintiff

exhaust local remedies for jurisdiction to lie, and we do not

consider a prudential exhaustion analysis given our limited

appellate jurisdiction. This being so, we will affirm the order

that the expropriation exception applies such that the court

has subject matter jurisdiction over the action as to both Spain

and the Foundation.

I

The property at issue is an oil painting by the French

impressionist master Camille Pissarro, Rue Saint-Honoré,

après-midi, effet de pluie.1 It was completed in 1897 and sold

in 1898 to Cassirer’s great-grandfather, Julius Cassirer, who

lived in Germany. The painting remained in the family for

some forty years, eventually passing to Lilly Cassirer, Cas-

sirer’s grandmother, upon her husband’s death. She later

remarried.

In 1939 Lilly decided she had no choice but to leave Ger-

many. By that time — as the district court judicially noticed

— German Jews had been deprived of their civil rights,

including their German citizenship;2 their property was being

“Aryanized”; and the Kristallnacht pogroms had taken place

throughout the country. Permission was required both to leave

and to take belongings. The Nazi government appointed

1

Except as noted, we take the facts as alleged in the complaint as true

because we are reviewing a denial of a motion to dismiss. Altmann v.

Republic of Austria, 317 F.3d 954, 961-62 (9th Cir. 2002), amended by

327 F.3d 1246 (9th Cir. 2003), aff’d by 541 U.S. 677 (2004).

2

Citizenship matters because we have held that the takings exception,

at issue here, does not apply where the plaintiff is a citizen of the country

that expropriates his property. Chuidian v. Philippine Nat’l Bank, 912 F.2d

1095, 1105 (9th Cir. 1990). The district court’s determination that Lilly

was no longer regarded by Germany as a German citizen is not challenged

on appeal.

11464 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Munich art dealer Jakob Scheidwimmer as the official

appraiser to evaluate the works of art, including the Pissarro

painting, that Lilly wished to take with her. Scheidwimmer

refused to allow her to take the painting out of Germany and

demanded that she hand it over to him for approximately

$360. Fearing she would not otherwise be allowed to go, and

knowing she would not actually get the money because the

funds would be paid into a blocked account, Lilly complied.

Scheidwimmer traded the painting to another art dealer,

who was also persecuted and fled Germany for Holland. After

Germany invaded Holland, the Gestapo confiscated the paint-

ing and returned it to Germany, where it was sold at auction

to an anonymous purchaser in 1943. It turned up at a New

York gallery in 1952 and was sold to a St. Louis collector; it

was sold again in 1976 to a New York art dealer who, in turn,

sold it to Baron Hans-Heinrich Thyssen-Bornemisza.

Bornemisza lived in Switzerland and was a preeminent pri-

vate collector.

In 1988, Spain paid the Baron $50 million to lease his col-

lection for ten years. Five years into the lease, Spain paid the

Foundation $327 million to purchase the entire collection,

including the Pissarro painting. As part of the agreement,

Spain provided the Villahermosa Palace in Madrid to the

Foundation, free of charge, for use as the Thyssen-

Bornemisza Museum.

Claude Cassirer, Lilly’s heir, discovered in 2000 that the

painting was on display at the Thyssen-Bornemisza Museum

in Madrid. He asked Spain’s Minister for Education, Culture

and Sports, who was chair of the Foundation’s board, to

return it. The request was refused. In 2003, five members of

Congress wrote the Minister requesting return of the painting;

this request, too, was rejected. Cassirer did not try to obtain

the painting through judicial proceedings in Spain, or to pur-

sue other remedies in Spain or Germany, before bringing suit

in the United States.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11465

He filed this action against the Foundation and Spain in the

Central District of California on May 10, 2005. The complaint

avers that Germany confiscated the painting based on Lilly’s

status as a Jew and as part of its genocide against Jews; hence

the taking was in violation of international law. It alleges that

the Foundation is engaged in numerous commercial activities

in the United States that include borrowing art works from

American museums; encouraging United States residents to

visit the museum and accepting entrance fees from them; sell-

ing various items to United States citizens including images

of the painting; and maintaining a web site where United

States citizens may buy admission tickets using United States

credit cards and view the paintings on display, including Rue

Saint-Honoré, après-midi, effect de pluie. The complaint

seeks imposition of a constructive trust and return of the

painting or, alternatively, recovery of damages for conversion.

The Foundation filed a motion to dismiss based on lack of

subject matter and personal jurisdiction, and improper venue.

Spain followed with its own motion to dismiss. The district

court allowed Cassirer to conduct jurisdictional discovery into

the Foundation’s commercial activity in the United States.

Both motions were then denied. The court certified the matter

for interlocutory appeal under 28 U.S.C. § 1292(b), though

Spain and the Foundation abjured this route in favor of appeal

on the basis of the collateral order doctrine.

In this court, Cassirer filed a motion to dismiss as to issues

other than those pertaining to sovereign immunity on the

ground that appellate jurisdiction is lacking.3 The original

panel agreed that the district court’s denial of motions to dis-

miss for lack of personal jurisdiction and case or controversy

is not immediately appealable as a collateral order. Cassirer

v. Kingdom of Spain, 580 F.3d 1048, 1054-55 (9th Cir. 2009).

The panel held that § 1605(a)(3) does not require Spain to be

3

Cassirer also moved to expedite the Foundation’s appeal. We granted

this motion and sua sponte ordered the appeals to be consolidated.

11466 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

the entity that expropriated the painting in violation of inter-

national law, and that the Foundation, which owns the paint-

ing, engaged in sufficient commercial activity in the United

States to satisfy the FSIA. It further held that exhaustion is not

statutorily required; however, a majority concluded that the

district court erred in failing to conduct a prudential exhaus-

tion analysis, and remanded for it to do so. We decided to

rehear the case en banc. Cassirer v. Kingdom of Spain, 590

F.3d 981 (9th Cir. 2009).4

II

We must consider the bounds of our appellate jurisdiction

at the outset. By statute, 28 U.S.C. § 1291, we have jurisdic-

tion to review “final decisions” of the district court. A final

decision is one that ends the litigation on the merits, Am.

States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.

2003), which no decision that is before us does. Still, we may

review “a small category of decisions that, although they do

not end the litigation, must nonetheless be considered

‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42

(1995) (quoting Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)). “That small category includes only

decisions that are conclusive, that resolve important questions

separate from the merits, and that are effectively unreview-

able on appeal from the final judgment in the underlying

action.” Id.

It is well settled that sovereign immunity is within this

small category of cases from which an immediate appeal will

lie. See, e.g., Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759,

4

As part of our en banc process we asked the parties to file simultaneous

briefs as to whether this matter should be reheard en banc. Spain and the

Foundation took the position that rehearing en banc is unnecessary

because they intend to file a motion to dismiss the complaint on the

ground that the claims are time-barred under Von Saher v. Norton Simon

Museum of Art, 578 F.3d 1016 (9th Cir. 2009). We express no opinion on

the merits of this proposition.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11467

763-65 (9th Cir. 2007); In re Republic of the Philippines, 309

F.3d 1143, 1148-49 (9th Cir. 2002). The point of immunity is

to protect a foreign state that is entitled to it from being sub-

jected to the jurisdiction of courts in this country, protection

which would be meaningless were the foreign state forced to

wait until the action is resolved on the merits to vindicate its

right not to be in court at all. Thus, we have jurisdiction to

review the district court’s order denying sovereign immunity.

The same is not true of the court’s orders denying motions

to dismiss for lack of a case or controversy and personal juris-

diction. Van Cauwenberghe v. Biard, 486 U.S. 517, 526-27

(1988), and Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.

2003), both recognize that denial of a motion to dismiss for

lack of personal jurisdiction is neither a final decision nor

appealable under the collateral order doctrine. The FSIA pres-

ents a novel situation, however, in that personal jurisdiction

over a foreign state exists under the statute if it is not immune

and if proper service has been made. 28 U.S.C. § 1330(b);

Altmann, 317 F.3d at 969. Because the one follows from the

other, the rulings arguably are so related that we should con-

sider extending our collateral order jurisdiction over sover-

eign immunity to resolve personal jurisdiction as well. See

Swint, 514 U.S. at 50-51 (discussing but not deciding whether

a court of appeals with jurisdiction over one ruling can review

related rulings that are not themselves independently review-

able). We see no reason to do so here, for the decision points

are different.

[1] The Foundation argues that exercising personal juris-

diction offends due process. To resolve this argument, we

would need to decide whether a foreign state or an instrumen-

tality of a foreign state is a “person” for purposes of the Due

Process Clause, whether the FSIA incorporates the require-

ments of “minimum contacts,” and whether the Foundation

has sufficient minimum contacts with the United States to

support general or specific jurisdiction. Its stance on sover-

eign immunity, on the other hand, turns on whether the tak-

11468 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

ings exception applies only to a foreign state that has itself

taken property in violation of international law, and whether

the Foundation has engaged in a commercial activity in the

United States. In short, a decision that a foreign state is not

entitled to sovereign immunity under the FSIA is not “inextri-

cably intertwined” with a decision that the exercise of per-

sonal jurisdiction comports with due process. See id. at 51.

Therefore, we decline to expand our collateral order jurisdic-

tion to append review of the latter to the former.

[2] Although we have not previously addressed whether

denial of a motion to dismiss for lack of a case or controversy

is an immediately appealable collateral order, other circuits

have indicated that questions of standing, case or controversy,

and ripeness are, like the question of personal jurisdiction, not

immediately appealable. See, e.g., Moniz v. City of Fort Lau-

derdale, 145 F.3d 1278, 1281 n.3 (11th Cir. 1998) (standing);

Triad Assocs., Inc. v. Robinson, 10 F.3d 492, 496-97 n.2 (7th

Cir. 1993) (same); Crymes v. DeKalb County, 923 F.2d 1482,

1484 (11th Cir. 1991) (ripeness); Shanks v. City of Dallas,

752 F.2d 1092, 1098 n.9 (5th Cir. 1985) (case or controversy

and standing); City of Detroit v. Grinnell Corp., 495 F.2d 448,

474-75 (2d Cir. 1974) (ripeness and standing), abrogated on

other grounds by Goldberger v. Integrated Res., Inc., 209

F.3d 43 (2d Cir. 2000). We routinely consider these issues on

appeal from a final judgment, see, e.g., Oregon v. Legal

Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009), and are not

persuaded that the district court’s order refusing to dismiss

this action for lack of a case or controversy should be imme-

diately appealable. While a favorable ruling would remove

Spain from the lawsuit just as immunity would do, so too

would prevailing on a myriad of other pretrial motions.

Achieving an effectively similar result is no reason to bring

denial of such motions within the “small category” of deci-

sions that merit immediate review, otherwise the category

would be small no longer.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11469

[3] Accordingly, we have no appellate jurisdiction to

review the district court’s denial of motions to dismiss for

lack of personal jurisdiction and a case or controversy.

III

As both the Supreme Court and we have explained the gen-

esis of the FSIA at length, see Republic of Austria v. Altmann,

541 U.S. 677, 688-91 (2004); Verlinden B.V. v. Central Bank

of Nigeria, 461 U.S. 480, 486-89 (1983); Siderman de Blake

v. Republic of Argentina, 965 F.2d 699, 705-06 (9th Cir.

1992), we will not do so again except to say that in 1976,

Congress codified the “restrictive principle” of sovereign

immunity with “a comprehensive statute containing a ‘set of

legal standards governing claims of immunity in every civil

action against a foreign state or its political subdivisions,

agencies, or instrumentalities.’ ” Altmann, 541 U.S. at 691

(quoting Verlinden, 461 U.S. at 488). The “restrictive princi-

ple,” then embraced by most nation states, recognized immu-

nity for public acts, that is to say, acts of a governmental

nature typically performed by a foreign state, but not for acts

of a private nature even though undertaken by a foreign state.

Commercial activity is a good example of conduct that would

ordinarily be engaged in by a private entity. If a foreign state

is not entitled to immunity, then it is liable on claims for relief

just like a private individual. 28 U.S.C. § 1606.

“The language and history of the FSIA clearly establish

that the Act was not intended to affect the substantive law

determining the liability of a foreign state or instrumentality

. . . .” First Nat’l City Bank v. Banco Para El Comercio, 462

U.S. 611, 620 (1983); H.R. Rep. No. 94-1487, at 12 (1976),

as reprinted in 1976 U.S.C.C.A.N. 6604, 6610 (“The bill is

not intended to affect the substantive law of liability.”).5 Put

differently, the FSIA simply limits the jurisdiction of Ameri-

5

The House bill was passed in lieu of the Senate bill, so the House

Report is the operative legislative history.

11470 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

can courts to hear claims against foreign states. It creates no

cause of action.

Sovereign immunity is a threshold issue because it goes to

the court’s subject matter jurisdiction. It is a question of law

that we review de novo, although to the extent informed by

factual findings made by the district court, those findings are

reviewed for clear error.

Under the statutory scheme, a district court has subject mat-

ter jurisdiction over claims against a foreign state with respect

to which the foreign state is not entitled to immunity. 28

U.S.C. § 1330(a).6 A foreign state is immune except as speci-

fied in the FSIA. 28 U.S.C. § 1604.7 The FSIA has a number

of exceptions,8 but Cassirer invokes only the “expropriation”

exception in § 1605(a)(3). Section 1605(a)(3) provides that a

foreign state is not immune in any case

in which rights in property taken in violation of

international law are in issue and that property or

6

Section 1330(a) provides:

The district courts shall have original jurisdiction without regard

to amount in controversy of any nonjury civil action against a

foreign state as defined in section 1603(a) of this title as to any

claim for relief in personam with respect to which the foreign

state is not entitled to immunity either under sections 1605-1607

of this title or under any applicable international agreement.

7

Section 1604 provides:

Subject to existing international agreements to which the United

States is a party at the time of enactment of this Act a foreign

state shall be immune from the jurisdiction of the courts of the

United States and of the States except as provided in sections

1605 to 1607 of this chapter.

8

There are exceptions for waiver, id. § 1605(a)(1); commercial activity,

id. § 1605(a)(2); expropriation, id. § 1605(a)(3); succession, id. § 1605(a)

(4); personal injury in the United States, id. § 1605(a)(5); arbitration, id.

§ 1605(a)(6); maritime liens, id. § 1605(b); terrorism, id. § 1605A; and

counterclaims, id. § 1607.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11471

any property exchanged for such property is present

in the United States in connection with a commercial

activity carried on in the United States by the foreign

state; or that property or any property exchanged for

such property is owned or operated by an agency or

instrumentality of the foreign state and that agency

or instrumentality is engaged in a commercial activ-

ity in the United States[.]

So far as the first condition is concerned, a taking offends

international law when it does not serve a public purpose,

when it discriminates against those who are not nationals of

the country, or when it is not accomplished with payment of

just compensation. See Siderman, 965 F.2d at 711-12; West v.

Multibanco Comermex, S.A., 807 F.2d 820, 831-33 (9th Cir.

1987). As we noted in Siderman, both the House Report on

the FSIA and the Restatement of Foreign Relations Law

reflect a similar understanding.9 “At the jurisdictional stage,

we need not decide whether the taking actually violated inter-

national law; as long as a ‘claim is substantial and non-

frivolous, it provides a sufficient basis for the exercise of our

jurisdiction.’ ” Siderman, 965 F.3d at 711 (quoting West, 807

F.2d at 826). On appeal, neither Spain nor the Foundation

contends that Germany’s actions with respect to the painting

were not a taking in violation of international law.

So far as the commercial activity prong is concerned, just

the second clause is pertinent here as there is no dispute the

painting is not “present in the United States.” Thus, there is

9

The House Report describes the phrase “taken in violation of interna-

tional law” as including expropriations that are “arbitrary or discrimina-

tory in nature,” or done “without payment of the prompt adequate and

effective compensation required by international law.” 965 F.2d at 712

(quoting H.R. Rep. No. 94-1487, at 19-20). The Restatement provides that

a foreign state is responsible for injury from a taking that “(a) is not for

a public purpose, or (b) is discriminatory, or (c) is not accompanied by

provision for just compensation. . . .” Restatement (Third) of Foreign

Relations Law of the United States § 712 (1987).

11472 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

jurisdiction under § 1605(a)(3) if the Foundation, which

admittedly owns the painting and concedes it is an instrumen-

tality of Spain for purposes of the statute, “is engaged in a

commercial activity in the United States.” “A ‘commercial

activity’ means either a regular course of commercial conduct

or a particular commercial transaction or act. The commercial

character of an activity shall be determined by reference to the

nature of the course of conduct or particular transaction or act,

rather than by reference to its purpose.” 28 U.S.C. § 1603(d).

With this by way of background, we turn to the questions

that are dispositive here: whether § 1605(a)(3) covers a claim

against Spain and the Foundation when neither was the for-

eign state that took the painting in violation of international

law; whether the Foundation is engaged in a sufficient com-

mercial activity in the United States; and whether exhaustion

of remedies is required as a prerequisite to jurisdiction.

A

The Foundation’s lead point, joined by Spain, is that the

takings exception applies only to the foreign state that expro-

priated the property and not to some later purchaser who was

not complicit in the taking. More specifically, the Foundation

contends that because the language of § 1605(a)(3) does not

identify the taker, the text can as easily be read to imply a tak-

ing “by the foreign state” as a taking “by any foreign state.”

[4] We agree with the district court that the plain language

of the statute does not require that the foreign state against

whom the claim is made be the entity which took the property

in violation of international law. Section 1605(a)(3) simply

excepts from immunity “a foreign state” in any case “in which

rights in property taken in violation of international law are

in issue.” (emphasis added). The text is written in the passive

voice, which “focuses on an event that occurs without respect

to a specific actor.” Dean v. United States, 129 S. Ct. 1849,

1853 (2009) (so observing with respect to the phrase “if the

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11473

firearm is discharged”); see Watson v. United States, 552 U.S.

74, 80-81 (2007) (noting that use of the phrase “to be used”

reflects “agnosticism . . . about who does the using”). Thus,

the text already connotes “any foreign state.” It would have

to be rewritten in order to carry the meaning the Foundation

ascribes to it. That is, the statute would need to say that a for-

eign state is not immune in a case “in which rights in property

taken by the foreign state in violation of international law are

in issue.”

[5] In the normal event our task is over when a statute is

clear on its face. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of

Educ., 550 U.S. 81, 93 (2007). The rule is no different with

the FSIA. See, e.g., Af-Cap, Inc. v. Chevron Overseas

(Congo) Ltd., 475 F.3d 1080, 1087-88 (9th Cir. 2007) (“In

interpreting the FSIA, we first look to the plain meaning of

the language employed by Congress.” (internal quotation

marks and citation omitted)); Phaneuf v. Republic of Indone-

sia, 106 F.3d 302, 308 (9th Cir. 1997) (observing in an FSIA

case that “[w]e assume . . . ‘the ordinary meaning of [the stat-

utory] language accurately expresses the legislative pur-

pose’ ” (quoting Export Group v. Reef Indus., Inc., 54 F.3d

1466, 1473 (9th Cir. 1995))). Thus, we take the plain meaning

of the text to be the meaning that Congress intended. As the

words and grammatical construct in § 1605(a)(3) are clear, we

understand that Congress meant for jurisdiction to exist over

claims against a foreign state whenever property that its

instrumentality ends up claiming to own had been taken in

violation of international law, so long as the instrumentality

engages in a commercial activity in the United States.10

10

The dissent invokes “another principle of statutory construction,” dis.

op. at 11500, which we disagree is applicable. It is that statutes in deroga-

tion of the common law are to be strictly construed. In the dissent’s view,

the common law gives sovereign nations like Spain a sovereign immunity.

For this it relies on the Supreme Court’s statement in Samantar v. Youseuf,

130 S. Ct. 2278 (2010), that “[t]he doctrine of foreign sovereign immunity

developed as a matter of common law long before the FSIA was enacted

in 1976.” Id. at 2284. But the Court also made clear that “[a]fter the enact-

ment of the FSIA, the Act — and not the pre-existing common law —

indisputably governs the determination of whether a foreign state is enti-

tled to sovereign immunity.” Id. at 2285.

11474 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Although the Foundation argues that evolution of the tak-

ings exception undermines this interpretation, it points to

nothing in the legislative history which “clearly indicates that

Congress meant something other than what it said.” Carson

Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th

Cir. 2001) (describing the standard) (internal quotation marks

omitted). Instead, relying on two Fifth Circuit decisions,

Vencedora Oceanica Navigacion, S.A. v. Compagnie Nation-

ale Algerienne de Navigation, 730 F.2d 195, 204 (5th Cir.

1984), and de Sanchez v. Banco Central de Nicaragua, 770

F.2d 1385, 1395 (5th Cir. 1985), and § 455 of the Restatement

(Third), it claims that courts and commentators have long

understood that the exception applies only to states that have

done the taking. Vencedora was concerned with whether

Algeria or an Algerian-owned corporation that had towed an

abandoned vessel “owned or operated” it; in that context, the

court stated that the legislative history of the FSIA indicates

that § 1605(a)(3) was intended to reach any foreign agency

that expropriated property or is using expropriated property

taken by another branch of the foreign state. 730 F.2d at 204

(citing 1976 U.S.C.C.A.N. 6604, 6618).11 The court held that

11

The cited portion of the House Report explains the expropriation

exception and states:

(a)(3) Expropriation claims.— Section 1605(a)(3) would, in two

categories of cases, deny immunity where “rights in property

taken in violation of international law are in issue.” The first cate-

gory involves cases where the property in question or any prop-

erty exchanged for such property is present in the United States,

and where such presence is in connection with a commercial

activity carried on in the United States by the foreign state, or

political subdivision, agency or instrumentality of the foreign

state. The second category is where the property, or any property

exchanged for such property, is (I) owned or operated by an

agency or instrumentality of a foreign state and (ii) that agency

or instrumentality is engaged in a commercial activity in the

United States. Under the second category, the property need not

be present in connection with a commercial activity of the agency

or instrumentality.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11475

the Algerian-owned corporation did not assume control of the

vessel for the benefit of the Algerian government. Vencedora

thus speaks to a different issue; the court had no occasion to

comment on whether the taker and the defendant must be the

same. The statement upon which the Foundation relies does

not, in any event, say the opposite; that is, it does not say that

§ 1605(a)(3) applies only to the state that has done the wrong-

ful expropriating. De Sanchez does nothing more than quote

Vencedora.12 Neither persuades us that Congress clearly

meant something other than what it said in § 1605(a)(3). Nor

does the Restatement,13 which paraphrases what the FSIA pro-

vides but sheds no light on congressional intent.

The term “taken in violation of international law” would include

the nationalization or expropriation of property without payment

of the prompt adequate and effective compensation required by

international law. It would also include takings which are arbi-

trary or discriminatory in nature. Since, however, this section

deals solely with issues of immunity, it in no way affects existing

law on the extent to which, if at all, the “act of state” doctrine

may be applicable. See 22 U.S.C. 2370(e)(2).

H.R. Rep. No. 94-1487, at 19-20.

12

It does so in explicating the so-called “Hickenlooper Exception” to the

act of state doctrine. The “Hickenlooper Exception” is a shorthand refer-

ence to 22 U.S.C. § 2370(e)(2), which prohibited courts from declining on

the ground of the act of state doctrine to determine the merits in cases

where a claim to property is asserted based on a taking “by an act of that

state in violation of the principles of international law.” Whether or not

§ 1605(a)(3) was intended to parallel or incorporate the concepts of the

Hickenlooper Exception, as the dissent suggests, the observation is inap-

posite because the act of state doctrine is a substantive defense on the mer-

its that is distinct from immunity. See Samantar, 130 S. Ct. at 2290-91.

Besides this, the Hickenlooper Exception shows that Congress knows how

to write “that state” when it wants to.

13

Section 455 provides:

(3) Courts in the United States have jurisdiction with respect to

claims to property taken by a foreign state in violation of interna-

tional law if

...

11476 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Our reading of the text is buttressed by the articulated pur-

pose of the FSIA to immunize foreign states for their public,

but not for their commercial, acts. As Congress declared:

“Under international law, states are not immune from the

jurisdiction of foreign courts insofar as their commercial

activities are concerned.” 28 U.S.C. § 1602 (Findings and

Declaration of Purpose). Consistent with this purpose,

§ 1605(a)(3) restricts jurisdiction over an entity of a foreign

state that owns property taken in violation of international law

to those engaged in commercial activity in the United States.

No other restriction is manifest.14

The Foundation asks us to compare § 1605(a)(3) with

§ 1605(a)(4), which is known as the “succession” exception,

(b) the property (or the proceeds thereof) is owned or oper-

ated by an instrumentality of the state and that instrumental-

ity is engaged in commercial activity in the United States.

Restatement (Third) § 455. The comment, upon which the Foundation also

relies, states that

the FSIA provides that if the property was taken by the foreign

state in violation of international law, and if the property is . . .

owned or operated by an instrumentality of the foreign state that

is engaged in commercial activity in the United States, there is a

sufficient basis for jurisdiction to adjudicate claims to the prop-

erty.

14

Nor does the literal language strike us as so absurd that Congress

couldn’t possibly have meant to provide a forum for adjudicating claims

to property previously taken in violation of international law that is cur-

rently held by a different foreign state or its instrumentality, when the req-

uisite nexus of commercial activity exists in the United States. Doing so

is consistent with the familiar notion that a purchaser cannot get good title

if property has been stolen at any place along the line, which is the general

rule at common law. See, e.g., Marilyn E. Phelan, Scope of Due Diligence

Investigation in Obtaining Title to Valuable Artwork, 23 Seattle U. L. Rev.

631, 633-34 (2000) (“[O]ne who purchases, no matter how innocently,

from a thief, or all subsequent purchasers from the thief, acquires no title

in the property. Title always remains with the true owner.”); see also

U.C.C. § 2-403 (seller can only transfer the title that it possesses).

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11477

and to follow how we construed that exception in Republic of

Philippines, 309 F.3d at 1150-51. Section 1605(a)(4) exempts

a foreign state from immunity in any case “in which rights in

property in the United States acquired by succession . . . are

in issue.” As the Foundation points out, the word “acquired”

is not followed by the phrase “by the foreign state,” yet this

is the meaning we gave to the exception in Republic of Philip-

pines. In that case, creditors of the Estate of Ferdinand E.

Marcos sought to collect Marcos assets held by Merrill

Lynch; Merrill Lynch filed an interpleader action to resolve

conflicting claims, naming, among possible claimants, the

Republic of the Philippines. The Republic asserted sovereign

immunity; the creditors relied on the succession exception

even though the Republic had not acquired any right in the

assets by succession. The creditors argued that jurisdiction

nevertheless attached because the statute requires only that

rights acquired by succession be in issue, not necessarily the

rights of the sovereign. We concluded that the exception

applies only when the foreign state’s interest is as a successor

to a private party. In so doing, we relied in part on legislative

history which explains that immunity may not be claimed

under this exception when the suit against the foreign state

relates to property that it has obtained by gift or inheritance

and that is located or administered in the country where suit

is brought, because in this capacity — asserting rights in an

estate — “ ‘the foreign state claims the same right which is

enjoyed by private persons.’ ” Id. at 1151 (quoting H.R. Rep.

No. 94-1487, at 20). In other words, to conform to the FSIA’s

declared purpose, we read § 1605(a)(4) as exempting a for-

eign state only if it were claiming rights as a successor

because it is only in that role that it is acting like a private per-

son. By contrast, § 1605(a)(3) on its face confers jurisdiction

over a foreign state only if the foreign state that is sued claims

to own illegally confiscated property and acts like a private

person by engaging in a commercial activity in the United

States. Section 1605(a)(3), therefore, is already consonant

with the purpose of the FSIA.

11478 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Finally, the Foundation posits that bizarre consequences

unintended by Congress will occur if § 1605(a)(3) is inter-

preted as granting jurisdiction against foreign entities regard-

less of who did the expropriating or when, and regardless of

whether the defendant was a good faith purchaser.15 We can-

not say whether floodgates might open, but in any event,

jurisdictional boundaries are for Congress to set, not for

courts to write around. This said, restraints are in place that

deflect the risk. The FSIA is purely jurisdictional; it doesn’t

speak to the merits or to possible defenses that may be raised

to cut off stale claims or curtail liability. In addition, the stat-

ute constrains its own reach by restricting jurisdiction to

rights in property, taken in violation of international law, that

is now in the hands of a foreign state or its instrumentality,

when that instrumentality is engaged in a commercial activity

in the United States. And decisional law further limits the uni-

verse of potential claimants, for instance, by excluding nation-

als of the expropriating country from the scope of

§ 1605(a)(3). See, e.g., Siderman, 965 F.2d at 711; Chuidian,

912 F.2d at 1105.16

15

Whether Spain was a good faith purchaser is not, of course, before us.

The bona fides of its acquisition will no doubt be raised in defense on the

merits, but is not a factor in the jurisdictional calculus. Likewise, the dis-

sent’s concern that a taking by one country can waive the sovereign immu-

nity of “some innocent nation that comes upon the property later through

legitimate means,” dis. op. at 11499, is premature. The Restatement sec-

tions upon which it relies speak to potential liability, not to immunity from

suit. See Restatement (Second) of Foreign Relations Law of the United

States §§ 164, 183 (1965); Restatement (Third) §§ 207, 712. They simply

indicate that a state is responsible under international law for injury that

is attributable to it or for which it failed to take reasonable preventive or

punitive measures. But this case is not yet to the stage where these princi-

ples are in play.

16

The dissent faults us for taking no heed of the fact that there may be

“important diplomatic implications” of our decision. Dis. op. at 11496.

However, this case involves a private dispute of the sort that Congress had

in mind when enacting the FSIA. Moreover, as the Supreme Court

recently explained, one of the two primary purposes described in § 1602

was “to transfer primary responsibility for deciding ‘claims of foreign

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11479

[6] In sum, the statute states that the property at issue must

have been “taken in violation of international law.” It does not

state “taken in violation of international law by the foreign

state being sued.” The legislative history does not clearly indi-

cate that Congress meant something other than what it said.

Indeed, the text would have to be redrafted to say what the

Foundation wishes it said. For these reasons, we conclude that

§ 1605(a)(3) does not require that the foreign state against

whom suit is brought be the foreign state that took the prop-

erty at issue in violation of international law.17

B

The Foundation maintains that its activities in the United

States are de minimis, and lack the requisite connection to the

property in question. It submits that the district court incor-

rectly held that the activity need not be “commercial” in the

ordinary sense, or be related to the expropriated property, or

be substantial.

[7] It is clear that activity need not be motivated by profit

to be commercial for purposes of the FSIA. Joseph v. Office

of the Consulate Gen. of Nigeria, 830 F.2d 1018, 1024 (9th

Cir. 1987). As § 1603(d) provides, the commercial character

of an activity depends on its nature rather than its purpose.

states to immunity’ from the State Department to the courts.” Samantar,

130 S. Ct. at 2285; see also id. at 2291 n.19 (“The Department sought and

supported the elimination of its role with respect to claims against foreign

states and their agencies or instrumentalities.”). Although we could have

invited a statement of interest from the State Department, as the dissent

suggests, Spain itself did not seek one and manifested no interest at oral

argument in soliciting the Department’s views.

17

This comports with what happened in Altmann. While we did not

directly decide the issue, we allowed the suit to go forward against Austria

and the government-owned Austrian Gallery though it was alleged that the

Klimt paintings at issue in that case had been confiscated in part by Ger-

man Nazis. See 317 F.3d at 968.

11480 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Thus, it does not matter that the Foundation’s activities are

undertaken on behalf of a non-profit museum to further its

cultural mission. See Sun v. Taiwan, 201 F.3d 1105, 1107-08

(9th Cir. 2000) (holding that Taiwan’s promotion and opera-

tion of a cultural tour was commercial activity despite being

free and having been done to foster understanding). The

important thing is that the actions are “the type of actions by

which a private party engages in trade and traffic or com-

merce.” Republic of Argentina v. Weltover, Inc., 504 U.S.

607, 614 (1992) (internal quotation marks omitted); Sider-

man, 965 F.2d at 708 (“The central question is ‘whether the

activity is of a kind in which a private party might engage.’ ”

(quoting Joseph, 830 F.2d at 1024)).

[8] After allowing jurisdictional discovery on the issue, the

district court found that the Foundation engages in commer-

cial activities in the United States that include: buying books,

posters, and post cards; purchasing books about Nazi expro-

priation of works of art; selling posters and books, and licens-

ing reproductions of images; paying United States citizens to

write for exhibit catalogs; shipping gift shop items to purchas-

ers in the United States, including a poster of the Pissarro

painting; recruiting writers and speakers to provide services at

the museum; permitting a program to be filmed at the

museum that included the Pissarro painting and was shown on

Iberia Airlines flights between Spain and the United States;

placing advertisements in magazines distributed in the United

States, and sending press releases, brochures, and general

information to Spain’s tourism offices in the United States, at

least one of which mentions the Pissarro by name; distributing

the museum bulletin, “Perspectives,” to individuals in the

United States; borrowing and loaning artworks, though not

the painting; and maintaining a website through which United

States citizens sign up for newsletters, view the collection —

including the Pissarro painting — and purchase advance

admission tickets through links to third-party vendors. Cas-

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11481

sirer, 461 F. Supp. 2d at 1173-75. These findings are sup-

ported in the record and are not clearly erroneous.18

The Foundation faults the district court for having failed to

require a nexus between the activity and the lawsuit, as well

as a quantum of activity that has a substantial connection with

the United States. It suggests that Congress meant to meld tra-

ditional concepts of personal jurisdiction with subject matter

jurisdiction under the FSIA. However, the second clause of

§ 1605(a)(3) contains no requirement that a lawsuit arise out

of specific activity having to do with the property in the

United States, that is, there is no express analogue to the tradi-

tional doctrine of specific jurisdiction, nor does it explicitly

require any particular level of activity or conduct commensu-

rate to that normally contemplated for general jurisdiction. In

this, § 1605(a)(3) differs from the “commercial activity”

exception in § 1605(a)(2), which does provide that a foreign

state is not immune from jurisdiction where “the action is

based upon a commercial activity carried on in the United

States by the foreign state” or upon an act committed else-

where that “causes a direct effect in the United States.” See,

e.g., Gates v. Victor Fine Foods, 54 F.3d 1457, 1463 (9th Cir.

1995) (applying § 1605(a)(2) and indicating the focus for pur-

poses of the “commercial activity” exception is on specific

acts that form the basis of the suit). The difference between

the two exceptions shows that Congress knew how to draw

upon traditional notions of personal jurisdiction when it

wanted to, and did.19 Beyond this, the statute says nothing par-

18

We have previously embraced a burden-shifting analysis under which

the plaintiff has the initial burden of showing that an FSIA exception

applies. If carried, the burden shifts to the defendant to show by a prepon-

derance of the evidence that the exception does not apply. See Siderman,

965 F.2d at 707-08. The parties do not mention this framework, discuss

its applicability to this part of the § 1603(a)(3) analysis, or argue that it

affects the outcome in any way.

19

The second clause of § 1605(a)(3) also differs from the first. The first

clause, which pertains to commercial activities of the foreign state itself,

11482 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

ticularly helpful about what constitutes “a” commercial activ-

ity that is either a “regular course of commercial conduct” or

a “particular commercial transaction or act.” Instead, Con-

gress left it to the courts to flesh out on a case-by-case basis.

We have considered the question before. In Siderman, we

concluded that the Sidermans’ allegations concerning Argen-

tina’s solicitation and entertainment of American guests at an

expropriated hotel and the hotel’s acceptance of American

credit cards and traveler’s checks were sufficient at the juris-

dictional stage to show that Argentina was engaged in a com-

mercial activity in the United States. 965 F.2d at 712. In

Altmann, we likewise held that the Gallery, which was an

instrumentality of the Austrian government and owned the

Klimt paintings allegedly confiscated from the plaintiff’s fam-

ily, engaged in a commercial activity in the United States.

This was based on allegations (assumed to be true) that the

Gallery authored, edited and published in the United States a

book about the women in Klimt paintings and a guidebook

with photographs of the stolen paintings; and it advertised

Gallery exhibitions in this country. 317 F.3d at 969. The pub-

lication and sale of these materials, and marketing of a Klimt

exhibition in the United States, were commercial activities in

themselves, and also were a means of attracting Americans to

the Gallery.

[9] Here, the Foundation has had many contacts with the

United States, including some that encourage Americans to

visit the museum where the Pissarro is featured, and some that

relate to the painting itself. While the Foundation engaged in

requires that those activities be “carried on” in the United States. Section

1603(e) defines “commercial activity carried on in the United States by a

foreign state” as “commercial activity carried on by such state and having

substantial contact with the United States.” The second clause, applicable

here, relates to a “commercial activity” in which an instrumentality of a

foreign state engages, and is subject to the broader definition of “commer-

cial activity” in § 1603(d), which does not mention “substantial contact.”

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11483

somewhat more activity in the United States than sufficed in

Siderman and somewhat less than occurred in Altmann, we

cannot say its endeavors fall short of being a commercial

activity for jurisdictional purposes under the second prong of

§ 1605(a)(3).

C

Spain proposes that Cassirer was required to exhaust judi-

cial remedies available in Germany or Spain before suing in

the United States under the expropriation exception.20 It par-

ticularly objects to the district court’s use of the exclusio

unius doctrine to infer from the presence of an exhaustion

requirement in § 1605(a)(7) — enacted in 1996 — but the

absence of one in § 1605(a)(3) — enacted in 1976 — that

Congress intended not to include an exhaustion requirement

in § 1605(a)(3).21 We recognize that extrapolating congressio-

nal intent for an earlier-enacted statute from a later-enacted

statute is problematic. See, e.g., Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 520 (1992) (questioning whether the intent

of an earlier Congress can be inferred from the views of a

subsequent one). We do not do so here; rather, we rely on the

plain language of § 1605(a)(3) which contains no exhaustion

requirement. This was the district court’s primary conclusion,

and it is one with which we agree.

[10] “Where Congress specifically mandates, exhaustion is

required. But where Congress has not clearly required exhaus-

tion, sound judicial discretion governs.” McCarthy v. Madi-

20

The Foundation makes no exhaustion argument, and does not join

Spain’s. Nor does the record disclose what remedies are available in either

country.

21

The requirement in former subsection (a)(7) was to arbitrate. Although

not germane to our decision, we note that the arbitration requirement that

was part of § 1605(a)(7) disappeared when that subsection was repealed,

and reenacted in different form, in § 1605A. See National Defense Autho-

rization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083(b)

(1)(A)(iii), 122 Stat. 3, 341 (2008) (repealing 28 U.S.C. § 1605(a)(7)).

11484 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

gan, 503 U.S. 140, 144 (1992) (internal citations omitted),

superseded by statute on other grounds as stated in Booth v.

Churner, 532 U.S. 731, 739 (2001). The expropriation excep-

tion says nothing at all about exhaustion of remedies. It does

not, for example, condition immunity on a claimant’s having

first presented his claim to the courts of the country being

sued, or to the courts of the country that did the taking, or to

any international tribunal. Spain identifies no language in the

FSIA that would obligate Cassirer to exhaust. It follows that

exhaustion is not a statutory prerequisite to jurisdiction.22

Neither does Spain point to anything in the legislative his-

tory that clearly indicates Congress meant to impose any such

obligation. To the contrary, Congress intended to create a

comprehensive, and exclusive, set of legal standards govern-

ing claims of immunity in every civil action against a foreign

state.23 As the preface to the House Report’s section-by-

22

The Court of Appeals for the D.C. Circuit has expressed its belief that

“this is likely correct.” Agudas Chasidei Chabad of U.S. v. Russian Fed’n,

528 F.3d 934, 948 (D.C. Cir. 2008). In that case it was unnecessary to

decide the issue definitively as the remedy Russia identified was inade-

quate in any event. However, the court did observe that “nothing in

§ 1605(a)(3) suggests that plaintiff must exhaust foreign remedies before

bringing suit in the United States.” Id.

23

The Supreme Court has often emphasized the importance of the com-

prehensiveness of this scheme in interpreting the FSIA. See, e.g., Verlin-

den, 461 U.S. at 488 (noting that Congress passed the FSIA with “a

comprehensive set of legal standards” to free the government from case-

by-case diplomatic pressures; to clarify the governing standards; and to

assure litigants that decisions are made on purely legal grounds); Altmann,

541 U.S. at 699 (“Quite obviously, Congress’ purposes in enacting such

a comprehensive jurisdictional scheme would be frustrated if, in posten-

actment cases concerning preenactment conduct, courts were to continue

to follow the same ambiguous and politically charged standards that the

FSIA replaced.” (internal quotation marks omitted)); Weltover, 504 U.S.

at 610 (noting that the FSIA “establishes a comprehensive framework”);

Mesa v. California, 489 U.S. 121, 136 (1989) (describing the FSIA as “a

‘comprehensive scheme’ comprising both pure jurisdictional provisions

and federal law capable of supporting Art. III ‘arising under’ jurisdiction”

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11485

section analysis indicates, the FSIA “sets forth the sole and

exclusive standards to be used in resolving questions of sov-

ereign immunity raised by foreign states before Federal and

State courts in the United States.” H.R. Rep. No. 94-1487, at

12 (emphasis added). Further, the Report states, “[t]he pur-

pose of the [FSIA] is to provide when and how parties can

maintain a lawsuit against a foreign state . . . in the courts of

the United States.” Id. at 6 (emphasis added). These objec-

tives would be undercut were courts to read requirements into

the statute that Congress itself has not clearly prescribed.

Spain nevertheless commends us to the views on exhaus-

tion in Greenpeace, Inc. (U.S.A.) v. State of France, 946 F.

Supp. 773, 782-84 (C.D. Cal. 1996); Millicom Int’l Cellular

v. Republic of Costa Rica, 995 F. Supp. 14, 23 (D.D.C. 1998);

and Justice Breyer’s concurrence in Altmann, 541 U.S. at 714.

We are not, however, persuaded they are apposite.

Greenpeace involved seizure of a ship, and held that the

claimant could not complain that a taking or other economic

injury has not been fairly compensated — and so violates

international law — unless the claimant had first exhausted

domestic remedies in the foreign state that allegedly caused

the injury. Millicom involved anti-competitive activity but

relied on Greenpeace for the same rule. Cassirer’s jurisdic-

tional theory is different, however; he asserts that the taking

was in violation of international law because it was part of

Germany’s genocide against Jews.24

(quoting Verlinden, 461 U.S. at 496)); Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 434-38 (1989) (determining that the

FSIA provides the sole basis for obtaining jurisdiction over a foreign state

in federal court, even if provisions of another jurisdictional statute might

apply, and referring to the House Report, which indicates that the primary

purpose of the Act was to “set[ ] forth comprehensive rules governing sov-

ereign immunity,” H.R. Rep. 94-1487, at 12).

24

There can be no serious question this is a non-frivolous contention.

See, e.g., Altmann, 317 F.3d at 968 (assuming the facts as alleged were

11486 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Altmann is no more on point. The issue of exhaustion was

not raised on appeal to our court and the Supreme Court did

not grant certiorari on any issue other than whether the FSIA

applied to claims that arose before it was enacted. The Court

held that it did, rejecting the dissent’s concern that doing so

would open foreign nations to vast liability for expropriation

claims that occurred long ago. Responding to the same con-

cern, Justice Breyer mentions several principles that might

prevent this from happening, among them, “a plaintiff may

have to show an absence of remedies in the foreign country

sufficient to compensate for any taking.”25 541 U.S. at 714.

Justice Breyer’s comment does not bear on the existence of

mandatory statutory exhaustion for, as he says, an absence of

remedies may need to be shown and a plaintiff who litigates

true, the Klimt paintings were “wrongfully and discriminatorily appropri-

ated in violation of international law”); see also Bernstein v. N.V.

Nederlandsche-Amerikaansche, Stoomvaart-Maatschappij, 210 F.2d 375,

375-76 (2d Cir. 1954) (per curiam) (quoting State Department Press

Release No. 296, April 27, 1949, entitled “Jurisdiction of United States

Courts Re Suits for Identifiable Property Involved in Nazi Forced Trans-

fers,” that publishes an April 13, 1949, letter from Jack B. Tate, Acting

Legal Advisor of the Department of State, reiterating the government’s

“opposition to forcible acts of dispossession of a discriminatory and con-

fiscatory nature practiced by the Germans on the countries or peoples sub-

ject to their controls”; stating the government’s “policy to undo the forced

transfers”; and setting forth the policy of the executive branch with respect

to claims asserted in the United States for restitution of such property, “to

relieve American courts from any restraint upon the exercise of their juris-

diction to pass upon the validity of the acts of Nazi officials”).

25

As in Greenpeace and Millicom, this observation also has to do with

a taking unaccompanied by just compensation. Justice Breyer draws on

substantive Fifth Amendment law as set out in City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999), and Kirby For-

est Industries, Inc. v. United States, 467 U.S. 1, 10 (1984), which requires

exhaustion of postdeprivation remedies because there cannot be constitu-

tional injury until a state fails to provide just compensation. However, a

taking may violate international law when it does not serve a public pur-

pose or is discriminatory in nature — the kind of taking that Cassirer has

pled for purposes of jurisdiction in this case — as well as when it is not

accompanied by just compensation.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11487

in the United States in disregard of remedies in the expropriat-

ing nation “may have trouble showing a ‘tak[ing] in violation

of international law.’ ” Id. (quoting § 1605(a)(3)) (emphasis

added). Thus, we do not read his concurrence as intimating

that § 1605(a)(3) statutorily mandates exhaustion for jurisdic-

tion to lie.26

This brings us to Sarei v. Rio Tinto, PLC, 550 F.3d 822

(9th Cir. 2008) (en banc), which was rendered after the dis-

trict court’s decision in this case and in which we discussed

whether prudential exhaustion should apply to claims under

the Alien Tort Statute (ATS).27 There, residents of Papua New

Guinea alleged various crimes against humanity and environ-

mental torts arising out of Rio Tinto’s mining operations in

Papua New Guinea. Recognizing that the Supreme Court had

signaled in Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21

(2004), that a prudential or judicially-imposed exhaustion

requirement “would certainly” be considered in an appropri-

ate case under the ATS, we held that Sarei was such a case.

However, neither Sosa nor Sarei offers any basis for reading

a mandatory exhaustion requirement into § 1605(a)(3). Both

26

Spain and Justice Breyer additionally allude to comment f of § 713 of

the Restatement (Third), which states that “[u]nder international law, ordi-

narily a state is not required to consider a claim by another state for an

injury to its national until that person has exhausted domestic remedies,

unless such remedies are clearly sham or inadequate, or their application

is unreasonably prolonged.” Restatement (Third) § 713 cmt. f. On its face

this section applies only to claims by one state against another where inter-

ests of comity are most compelling. Section 1605(a)(3), by contrast,

applies to claims by an individual against a foreign state of which he is

not a citizen. But even if applicable to claims other than those by one state

against another, and even if imbedded in international law, this section

merely reflects “ordinary” practice. The FSIA does not incorporate it, and

the legislative history doesn’t mention it. In short, this source does not

clearly indicate that Congress meant to require exhaustion even though it

did not say so.

27

The ATS confers jurisdiction on United States courts over “any civil

action by an alien for a tort only, committed in violation of the law of

nations or a treaty of the United States.” 28 U.S.C. § 1350.

11488 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

the Supreme Court in Sosa and we in Sarei were discussing

prudential, or discretionary, exhaustion, not statutory or man-

datory exhaustion that may condition jurisdiction. Unlike stat-

utory exhaustion, which, if clearly imposed by Congress, is

mandatory and may also be jurisdictional, “[j]udicially-

imposed or prudential exhaustion is not a prerequisite to the

exercise of jurisdiction, but rather is ‘one among related doc-

trines — including abstention, finality, and ripeness — that

govern the timing of federal-court decisionmaking.’ ” Sarei,

550 F.3d at 828 (quoting McCarthy, 503 U.S. at 144).

For this reason, we do not consider whether exhaustion may

apply to the claims asserted in this case. We have answered

the question before us — whether Spain is entitled to sover-

eign immunity under the FSIA. Necessarily, to do so we had

to decide whether exhaustion is a statutory prerequisite to

jurisdiction. We have determined that it is not: the expropria-

tion exception does not mandate exhaustion. The district court

went no further, nor do we. See Burlington N. & Santa Fe Ry.

Co. v. Vaughn, 509 F.3d 1085, 1088 (9th Cir. 2007) (deciding

claim of tribal sovereign immunity on interlocutory appeal but

declining to exercise jurisdiction over a claim based on denial

of exhaustion of tribal remedies); cf. Lauro Lines S.R.L. v.

Chasser, 490 U.S. 495, 501 (1989) (rejecting immediate

appeal from an interlocutory order denying a motion to dis-

miss based on a forum non conveniens clause because a claim

that a party may only be sued in a particular forum is vindica-

ble on appeal after final judgment).

[11] In conclusion, § 1605(a)(3) does not require local

remedies to be exhausted before a court may determine

whether subject matter jurisdiction exists, i.e., whether a for-

eign state is immune from suit. As the statutory criteria are

met, the expropriation exception applies to Spain. We express

no opinion beyond this. Undoubtedly, Spain and the Founda-

tion will pursue numerous defenses, but these are beyond the

scope of our present jurisdiction. We simply hold that the dis-

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11489

trict court has power to entertain Cassirer’s claim against

Spain as well as the Foundation.

IV

Conclusion

Having determined that our appellate jurisdiction does not

extend to the district court’s denial of motions to dismiss for

lack of personal jurisdiction and a case or controversy, we

dismiss the appeal as to these issues.

We conclude that Cassirer’s suit falls within the “expropri-

ation” exception to sovereign immunity, 28 U.S.C.

§ 1605(a)(3), which means that the courts of the United States

have subject matter jurisdiction to entertain it. He has asserted

a substantial and non-frivolous claim of a taking in violation

of international law by Germany. We agree with the district

court that Spain and the Foundation are not immune simply

because neither was the taker. The Foundation, which claims

to own the Pissarro that was taken from Cassirer’s grand-

mother, has engaged in various activities in the United States

— some of which relate to the painting and encourage Ameri-

cans to visit the museum — that show a commercial activity

for purposes of § 1605(a)(3).

[12] We also hold that § 1605(a)(3) does not mandate

exhaustion of remedies as a prerequisite to jurisdiction. We

decline to consider at this stage of proceedings whether pru-

dential exhaustion may be invoked to affect when a decision

on the merits may be made. Accordingly, we affirm the dis-

trict court’s order denying motions by Spain and the Founda-

tion to dismiss for lack of subject matter jurisdiction.

DISMISSED IN PART; AFFIRMED IN PART.

11490 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge,

joins, dissenting:

I would reverse and remand with instructions for the dis-

trict court to dismiss, on the theory that the Foreign Sovereign

Immunities Act (“FSIA”), under 28 U.S.C. § 1605(a)(3), has

not waived the sovereign immunity of Spain or its instrumen-

tality the Foundation. Hence I respectfully dissent. I have mis-

givings because the genocidal regime of Nazi Germany

renders Cassirer, as an heir with purported rights to a Pissaro

painting stolen by the Nazis, a most sympathetic claimant.

And I dissent with trepidation because the vast majority of

judges on this panel of eleven would not reverse outright on

the view that the sovereign immunity of Spain and its Founda-

tion has not been waived by § 1605(a)(3) of the FSIA.1 But

two wrongs do not make a right, and, notwithstanding the

Nazis’ campaign of genocide against Jews and theft of their

property, if Spain was not complicit in the Nazis’ taking of

the Pissaro,2 I do not believe that our Congress would have

1

One might ask, when there is such a firm supermajority for a position,

what is the value of a dissent? The answer is that I pen this dissent to

explain my views, because a dissent is a matter of individual judicial state-

ment and individual judicial conscience. The majority’s opinion is reason-

able, even persuasive, but only within the limits it sets by invoking the

plain-meaning rule. If the language was as plain to me as the majority per-

ceives it to be, I would adopt a similar view and shrug off a concern that

Congress has blundered. However, I view the language as ambiguous and

I view traditional modes of statutory interpretation as pointing in a differ-

ent direction, for the reasons that follow. These views may be considered

by the bench of another court, by the interested bar, or by other interested

persons.

2

Although Franco was somewhat ambivalent in conduct relating to Fas-

cist Germany and Fascist Italy, perhaps because of their help in Spain’s

Civil War, Franco’s regime in Spain never supported Nazi persecution of

Jews and, instead, Spain was a safe haven for Jews fleeing Nazi Germany

or occupied France. Indeed it has been estimated that Franco’s policies

during World War II saved the lives of tens of thousands of European

Jews. Chaim U. Lipschitz, Franco, Spain, the Jews, and the Holocaust 4

(1984).

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11491

intended its loss of sovereign immunity under the pertinent

provision of the FSIA. Viewing § 1605(a)(3) as ambiguous, I

conclude, all things considered, that it does not effectuate a

waiver of sovereign immunity in this case as against Spain or

the Foundation.

We start with the precise language of § 1605(a)(3):

A foreign state shall not be immune from the juris-

diction of courts of the United States or of the States

in any case . . . in which rights in property taken in

violation of international law are in issue . . . .”

28 U.S.C. § 1605(a)(3).

Where “the intent of Congress is clear and unambiguously

expressed by the statutory language,” no doubt the analysis

ought to end there. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of

Educ., 550 U.S. 81, 93 (2007). The statute does not expressly

say that the property must be taken “by the foreign state” (as

Spain and the Foundation contend). But neither does the stat-

ute expressly say the property must be taken “by any foreign

state” (as Cassirer contends). This lack of clarity is sufficient

to conclude that the statute is ambiguous and subject to

review of the legislative history for evidence of congressional

intent. See United States v. Daas, 198 F.3d 1167, 1174 (9th

Cir. 1999); see also Vencedora Oceanica Navigacion, S.A. v.

Compagnie Nationale Algerienne De Navigation (C.N.A.N.),

730 F.2d 195, 205 (5th Cir. 1984) (Higginbotham, J., concur-

ring in part and dissenting in part) (“The FSIA presents a

peculiarly twisted exercise in statutory draftsmanship. . . .

Congress chose to make the exceptions in sections 1605-07

purposefully ambiguous, having decided to put their faith in

the U.S. Courts, and thus attempted to provide only very mod-

est guidance to the judiciary.” (internal punctuation omitted)).

In my view, the district court, our prior panel, and now our

en banc panel are mistaken in their judgment thinking this

statutory term unambiguous.

11492 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

Prior to our en banc panel’s decision today, it does not

appear that any federal appellate court, apart from our prior

panel whose opinion was taken en banc and is not precedent,

has explicitly ruled on this issue. A few district-court deci-

sions had previously agreed in approach with our prior

panel’s conclusion that the plain language does not require

that the foreign-state defendant be the party that allegedly

expropriated the property. These decisions, stressing the pas-

sive voice in § 1605(a)(3), as well as the prior panel opinion

adopting this same line, are not persuasive to me. Altmann v.

Republic of Austria, 142 F. Supp. 2d 1187, 1202 (C.D. Cal.

2001), was conclusory. Anderman v. Federal Republic of Aus-

tria, 256 F. Supp. 2d 1098, 1109-10 (C.D. Cal. 2003), from

the same district court, just cited it. Our prior panel’s opinion

was also summary in nature.

The en banc majority similarly concludes that the plain lan-

guage of the statue decides this issue. Maj. op. at 11472-73.

According to the majority, because the text of the statute is

written in the passive voice, Congress would have to rewrite

the statute to include the language “by the foreign state” in

order to give it the meaning that Spain ascribes to it. Id. at

11473. Having decided that plain meaning dictates its result,

the en banc majority then examines the legislative history but

only to determine if it “clearly indicates that Congress meant

something other than what it said.” Id. at 11474 (quoting Car-

son Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877

(9th Cir. 2001) (en banc)). That legislative history, according

to the en banc majority, does not overcome the hurdle of plain

meaning, because it in part emphasizes that a sovereign state’s

commercial activities lie outside its otherwise sovereign

immunity. Id. at 11476-78. Because I do not think the mean-

ing of the text is so plain, as Congress would similarly have

to rewrite the statute to include the language “by any foreign

state” in order to give it the meaning that Cassirer ascribes to

it, and because I view the legislative history as dictating

another result, the “plain meaning” does not in my view set

such a high hurdle for the legislative history to overcome.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11493

Several voices that should command our attention, and

more respect than is given by the majority, have stated the

view that the waiver provision of § 1605(a)(3) applies to the

state that has wrongfully expropriated property in violation of

international law. The Fifth Circuit, for example, has said that

“the legislative history of the FSIA indicates that section

1605(a)(3) was intended to subject to United States jurisdic-

tion any foreign agency or instrumentality that has national-

ized or expropriated property without compensation, or that is

using expropriated property taken by another branch of the

state.” Vencedora Oceanica, 730 F.2d at 204. The D.C. Cir-

cuit has also recently said that § 1605(a)(3) “effectively

requir[es] that the plaintiff assert a certain type of claim: that

the defendant (or its predecessor) has taken the plaintiff’s

rights in property (or those of its predecessor in title) in viola-

tion of international law.” Agudas Chasidei Chabad of U.S. v.

Russian Fed’n, 528 F.3d 934, 941 (D.C. Cir. 2008). Although

these statements might be viewed as in the nature of dicta

because the issue that we face was not squarely confronted,

I do not view these statements as misleading dicta; rather,

they point us in the correct direction. This is the view pre-

sented in the American Law Institute’s language in the

Restatement, which also supports the interpretation that the

defendant must be the foreign state that allegedly expropriated

the property. Here is the Restatement of the ALI:

[T]he FSIA provides that if the property was taken

by the foreign state in violation of international law,

and if the property is . . . owned or operated by an

instrumentality of the foreign state that is engaged in

commercial activity in the United States, there is a

sufficient basis for jurisdiction to adjudicate claims

to the property.

Restatement (Third) of Foreign Relations Law of the United

States § 455 cmt. c (1987) (emphasis added).

11494 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

I do not need to reach the proposed rationales that would

turn decision on exhaustion.3 Instead, we must first focus on

whether Spain and the Foundation have taken property in vio-

lation of international law. Given that the statute is ambigu-

ous, I would apply the usual tools of statutory construction

and conclude that § 1605(a)(3) means that the property at

issue must be taken in violation of international law by the

foreign state defendant whose sovereign immunity shall be

lost.

Considering the legislative history, the following points

support my interpretation and that of the Fifth Circuit and

D.C. Circuit in their dicta and the Restatement position: The

FSIA incorporates the concepts of the “Hickenlooper Amend-

ment,” which provided in pertinent part that disputes over

expropriated property were justiciable when rights in property

were asserted on the basis of a taking “by an act of that state

in violation of the principles of international law.” See 28

U.S.C. § 2370(e)(2) (1982) (emphasis added); De Sanchez v.

Banco Central de Nicaragua, 770 F.2d 1385, 1395 (5th Cir.

1985) (“Section 1605(a)(3) of the FSIA . . . parallels the so-

called ‘Hickenlooper Exception’ to the act of state doctrine

. . . . Like the Hickenlooper Exception, Section 1605(a)(3)

was intended to subject to United States jurisdiction any for-

eign agency or instrumentality that has nationalized or expro-

priated property without compensation, or that is using

expropriated property taken by another branch of the state.”

(quotation marks omitted and emphasis added)).

3

If, contrary to my position, it were definitively decided that subject

matter jurisdiction exists under the FSIA in so far as § 1605(a)(3) permits

proceeding against any sovereign despite that the property was taken in

violation of international law by a different sovereign, then I would con-

clude that exhaustion would be required by the statute, under § 1605(a)(3),

as part and parcel of determining whether there had a been a taking in vio-

lation of international law. In this sense a requirement of exhaustion is

embedded within the statute’s exception for takings in violation of interna-

tional law. However, believing that a waiver of sovereign immunity arises

only as against a sovereign that took property in violation of international

law, I do not have to reach this position.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11495

“Congress intended the FSIA to be consistent with interna-

tional law . . . .” Trajano v. Marcos (In re Estate of Ferdinand

E. Marcos Human Rights Litigation), 978 F.2d 493, 497-98

(9th Cir. 1992). The central premise of the FSIA is that “deci-

sions on claims by foreign states to sovereign immunity are

best made by the judiciary on the basis of a statutory regime

which incorporates standards recognized under international

law.” H.R. Rep. No. 94-1487, at 14 (1976), reprinted in 1976

U.S.C.C.A.N. 6604, 6613. Section 1605(a)(3) “is based upon

the general presumption that states abide by international law

and, hence, violations of international law are not ‘sovereign’

acts.” West v. Multibanco Comermex, S.A., 807 F.3d 820, 826

(9th Cir. 1987). When customary international law concludes

that an act by a foreign state, that is, the taking of property in

violation of international law, is no longer a sovereign act, the

foreign state is no longer entitled to sovereign immunity.

International law therefore supports the exercise of jurisdic-

tion over foreign states that have themselves taken property in

violation of international law; it does not support the exercise

of jurisdiction over sovereign entities that have legitimately

acquired property that was at some other time and by some

other foreign state taken in violation of international law. To

conclude otherwise would provide U.S. courts with unbridled

jurisdiction over any sovereign foreign state that has in its

possession property that was at one time taken in violation of

international law by another foreign state. It would not matter

if the expropriation occurred seventy years ago, as in this

case, or seven hundred years ago. Congress would not have

intended such a result.

The productive inquiry here is to ask what Congress

intended by § 1605(a)(3), or, some might say, what Congress

would have intended if the case presented had been expressly

considered.4 Because I do not believe that Congress would

4

Benjamin Cardozo in The Nature of the Judicial Process states:

The ascertainment of intention may be the least of a judge’s trou-

bles in ascribing meaning to a statute. “The fact is,” says Gray in

11496 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

have intended Spain to suffer loss of its sovereign immunity

by this provision if it had no complicity in the unlawful tak-

ing, I do not join the position of the majority.5

Also, the majority takes no heed of the fact that there may

be important diplomatic implications of its decision. Rather

than asking the United States Department of Justice and

United States Department of State to weigh in on the question

whether the majority’s statutory interpretation has diplomatic

implications for the United States, the majority rushes head-

long to give a procedural remedy to Cassirer. As I’ve said at

the outset, Cassirer is a sympathetic claimant, being a victim

of Nazi theft, yet that in itself is not sufficient to warrant a

United States—led World Court approach, as the majority’s

position permits. U.S. foreign policy has rebuffed such a posi-

tion, as the United States withdrew, with limited exceptions,

from the International Court of Justice in 1986 and has not

his lectures on the “Nature and Sources of the Law,” “that the

difficulties of so-called interpretation arise when the legislature

has had no meaning at all; when the question which is raised on

the statute never occurred to it; when what the judges have to do

is, not to determine what the legislature did mean on a point

which was present to its mind, but to guess what it would have

intended on a point not present to its mind, if the point had been

present.”

Benjamin N. Cardozo, The Nature of the Judicial Process 15 (Bibliolife

2009) (1921) (internal footnote omitted). A similar idea is expressed by

Sir William Blackstone in his esteemed Commentaries on the Laws of

England, where, in discussing “equity,” he states:

For, since in laws all cases cannot be foreseen or expressed, it is

necessary that, when the general decrees of the law come to be

applied to particular cases, there should be somewhere a power

vested of defining those circumstances, which (had they been

foreseen) the legislator himself would have expressed.”

William Blackstone, 1 Commentaries on the Laws of England 61 (1765).

5

Congress, of course, could amend its language in § 1605(a)(3) to be

explicit about whether it means to waive sovereign immunity of an inno-

cent nation like Spain when it is in possession of a property taken by some

other person or nation in violation of international law.

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11497

joined the International Criminal Court, which was founded in

2002. Sean D. Murphy, Principles of International Law 135

(2006); Jennifer Elsea, Congressional Research Service,

Report for Congress, U.S. Policy Regarding the International

Criminal Court 2 (Aug. 29, 2006).

The majority’s view is not prudent unless sanctioned by the

Department of State, and may be not prudent even if it had the

State Department’s approval.6 There is no showing of any

manifest need in justice to give Cassirer a forum in the United

States for a free shot against Spain, for absent any prior

attempt at exhaustion of remedies in Spanish courts, there is

no showing that he would meet with a sovereign immunity

barrier there.

Further, other maxims of statutory interpretation are per-

suasive contrary to the majority’s interpretation. First,

because there is ambiguity in interpretation, we should not

adopt an interpretation that would violate the Constitution.

United States v. Buckland, 289 F.3d 558, 564 (9th Cir. 2002)

(en banc) (“[E]very reasonable construction must be resorted

to, in order to save a statute from unconstitutionality. . . . [I]f

an otherwise acceptable construction of a statute would raise

serious constitutional problems, and where an alternative

interpretation of the statute is ‘fairly possible,’ we are obli-

gated to construe the statute to avoid such problems.” (cita-

tions omitted)). Here, Cassirer’s due is to get the painting

stolen by the Nazis or compensation for it. But Spain’s due is

to have its sovereignty and sovereign immunity respected

because, as I first noted, two wrongs don’t make a right. We

6

The record does not show any statement of position on proper scope

of § 1605(a)(3) to our court from the United States Department of Justice

or the United States Department of State. I am not able to discern if the

State Department is merely slumbering through this matter, or if, for its

own purposes, it is studiously avoiding comment and maintaining a con-

scious silence at this stage of the case. However, in fairness to the State

Department, and the Department of Justice, our court has not heretofore

invited their comment on this issue.

11498 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

should conclude that to strip Spain of its immunity because of

a Nazi wrongdoing is a due process violation, because Spain

is losing the sovereignty due to it with no showing or even

allegation of complicity in wrong. In suggesting that there is

a due process problem in the court’s interpretation, I am see-

ing a procedural problem. As a matter of procedural due pro-

cess, it is hard to see how we could suggest rationally that

Spain should have to answer questions about whether Nazi

Germany’s taking of the painting, so many decades ago,

offended international law. I am at a loss to understand how

Spain could be expected to have any first-hand knowledge of

what Nazi Germany did and why. Spain of course is aware of

the general course of Nazi persecution of Jews, from the

Nuremberg War Trials, but how can we say that Spain has

any first-hand knowledge of Nazi Germany’s taking of the

Pissaro painting at issue here? If the majority interprets its

jurisdictional grant under § 1605(a)(3) to be invoked when

there is unconstitutional action of any person taking a prop-

erty, no matter what country, no matter when, this puts an

unreasonable procedural burden on a nation like Spain with-

out knowledge of the events creating jurisdiction, and I think

that is a procedural due process problem.

Second, it has long been understood that statutes should not

be construed to violate the law of nations if any other inter-

pretation is possible. See Murray v. The Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). As stated by Chief

Justice Marshall in that case:

[A]n act of Congress ought never to be construed to

violate the law of nations if any other possible con-

struction remains, and consequently can never be

construed to violate neutral rights, or to affect neu-

tral commerce, further than is warranted by the law

of nations as understood in this country.

Id. at 118. It is my position that saying a taking by Nazi Ger-

many in violation of international law waives the sovereign

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11499

immunity of some innocent nation that comes upon the prop-

erty later through legitimate means is a position that would

not be accepted under international law.7 See Restatement

(Second) of Foreign Relations Law of the United States § 164

(1965) (“A state is responsible under international law for

injury to an alien caused by conduct subject to its jurisdiction,

that is attributable to the state and wrongful under interna-

tional law.” (emphasis added); id. § 183 (explaining that a

state is responsible under international law for injury to the

property of an alien caused by conduct that is itself not attrib-

utable to the state if the injury resulted from the state not tak-

ing reasonable measures to prevent the conduct causing the

injury or not reasonably attempting to impose a penalty on the

person responsible for the conduct); Restatement (Third) of

Foreign Relations Law of the United States § 207 (“A state is

responsible for any violation of its obligations under interna-

tional law . . . .” (emphasis added)); id. § 712 (“A state is

responsible under international law for injury resulting from

. . . a taking by the state of the property of a national of

7

The majority contends that it is “premature” to consider whether Spain

is a good faith purchaser. Maj. op. at 11478 n.15. Yet we must consider

whether Congress intended to waive the sovereign immunity of such a

good faith purchaser, since Cassirer does not allege in the complaint that

Spain acquired the painting in bad faith or in violation of international

law. Cassirer alleges at most that Spain has “wrongfully detained” the

painting after the Nazis took the painting in violation of international law.

Nor are we to rely simply on the allegations in the complaint to determine

subject matter jurisdiction. We must instead look to facts outside the

pleadings to determine whether we have jurisdiction. Robinson v. United

States, 586 F.3d 683, 685 (9th Cir. 2009) (“No presumptive truthfulness

attaches to plaintiff’s allegations. Once challenged, the party asserting

subject matter jurisdiction has the burden of proving its existence.”) (cita-

tions omitted); see also McCarthy v. United States, 850 F.2d 558, 560 (9th

Cir. 1988) (“[W]hen considering a motion to dismiss pursuant to Rule

12(b)(1) the district court is not restricted to the face of the pleadings, but

may review any evidence, such as affidavits and testimony, to resolve fac-

tual disputes concerning the existence of jurisdiction.”); Charles Alan

Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1350

(3d ed. 2004). We know of no such facts in the record showing that Spain

has itself taken the painting in violation of international law.

11500 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

another state . . . .” (emphasis added)). As we stated recently

in Serra v. Lappin, the principle from The Schooner Charm-

ing Betsy is only a tool to aid our search for congressional

intent, because Congress, if it wanted to do so, could legislate

beyond the limits of international law. 600 F.3d 1191, 1198

(9th Cir. 2010). As we explained in Cabrera-Alvarez v. Gon-

zales, “Congress has the power to legislate beyond the limits

posed by international law.” 423 F.3d 1006, 1009 (9th Cir.

2005) (quotation marks omitted). The question is, in enacting

§ 1605(a)(3), did Congress mean to so infringe international

law in its very provision finding violation of international law

a basis for waiver of sovereign immunity?

There is still another principle of statutory construction that

is applicable here. Specifically, we have sometimes recog-

nized that statutes in derogation of the common law are to be

strictly construed. United States v. Texas, 507 U.S. 529, 534

(1993) (“[S]tatutes which invade the common law . . . are to

be read with a presumption favoring the retention of long-

established and familiar principles, except when a statutory

purpose to the contrary is evident”); Grace Line, Inc. v. Todd

Shipyards Corp., 500 F.2d 361, 371 (9th Cir. 1974) (“Any

such rule of law, being in derogation of the common law,

must be strictly construed, for no statute is to be construed as

altering the common law, farther than its words import.”

(quotation marks omitted)). We can say that the common law

gives sovereign nations like Spain a sovereign immunity. The

United States Supreme Court recently recognized this in

Samantar v. Yousuf, where it stated, “The doctrine of foreign

sovereign immunity developed as a matter of common law

long before the FSIA was enacted in 1976.” 560 U.S. ___,

No. 08-1555, slip op. at 4 (2010) (citing Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). When the

FSIA establishes a comprehensive system for finding excep-

tions to sovereign immunity in its specified categories, thus

outlining when sovereign immunity should be considered to

have been waived permitting suit against foreign nations in

the United States, these statutory exceptions to sovereign

CASSIRER v. THYSSEN-BORNEMISZA COLLECTION 11501

immunity, being in derogation of common law, must be

strictly construed, not expansively construed. If we give a

strict construction to § 1605(a)(3), I think we logically would

say that it is intended to cover violations of international law

by the nation whose sovereignty is waived. But the majority,

saying it covers violations of international law by anyone, is

giving this provision, in derogation of the common law con-

cept of sovereign immunity, an expansively unreasonable

construction.

History and reason and comity all are allied in supporting

that in this case Spain’s sovereignty should be respected.

History tells us that nations have a sovereign immunity that

has been broadly respected by other countries in their legal

systems and in the system of international law. See Stacy

Humes-Schulz, Limiting Sovereign Immunity in the Age of

Human Rights, 21 Harv. Hum. Rts. J. 105, 109-10 (2008)

(“State sovereignty and sovereign immunity fall into the cate-

gory of customary international law . . . . [S]tates will gener-

ally accord other states immunity out of the belief that this is

an unwritten but obligatory international rule.”); Charles S.

Rhyne, International Law 80 (1971) (“Corollary to a state’s

right of independence and equality is its immunity from suit

in foreign courts by foreign nationals. . . . In most states, this

immunity from suit remains an absolute privilege.”); see also

Verlinden, 461 U.S. at 486-88 (“For more than a century and

a half, the United States generally granted foreign sovereigns

complete immunity from suit in the courts of this country.

[Even under the FSIA, a] foreign state is normally immune

from the jurisdiction of federal and state courts . . . subject to

a set of exceptions . . . .”).

Reason tells us that § 1605(a)(3) should here be interpreted

in a way that respects Spain’s sovereign immunity. First and

foremost, reason tells us that two wrongs don’t make a right,

so a Nazi taking in violation of international law cannot rea-

sonably be viewed as invoking waiver of sovereign immunity

11502 CASSIRER v. THYSSEN-BORNEMISZA COLLECTION

by a Spain that was not complicit in the taking. The language

of the statute is ambiguous on its face, it does not say a taking

by the foreign state, it does not say a taking by any one. Sev-

eral important principles of statutory construction, that we

shouldn’t interpret this statute in a way violating our Constitu-

tion’s Due Process Clause, that we shouldn’t interpret this

statute in a way violating international law, and that we

should give strict construction to waivers of sovereign immu-

nity because they are in derogation of common law, all sup-

port a more modest interpretation of § 1605(a)(3) than that

advanced by the majority.

The principle of comity tells us the same thing. “Comity is

the recognition which one nation allows within its territory to

the legislative, executive or judicial acts of another nation.”

Dependable Highway Express, Inc. v. Navigators Ins. Co.,

498 F.3d 1059, 1067 (9th Cir. 2007) (quotation marks omit-

ted). Thus it seems to me that because Spain is a sovereign

with immunity from suit, we should respect that unless we

have better reason than merely a deserving victim of Nazi

aggression. Equally important, and I think a part of comity, is

the common sense notion of the golden rule. We should not

do to other nations what we would not want other nations to

do to us. I am concerned that by indulging now the sympa-

thetic claim of Cassirer as a Jewish heir with entitlement to

priceless art stolen by Nazi Germany, but doing so at the cost

of fairness to Spain and disrespect of its sovereignty, we will

likely sow the seeds of maltreatment of the United States and

its officials in foreign courts.

Hence, I respectfully dissent.