Amicus Curiae Brief — Marei von Saher, Petitioner v. Norton Simon Museum of Art at Pasadena, et al.

No. 18-1057

In the

Supreme Court of the United States

MAREI VON SAHER,

Petitioner,

v.

NORTON SIMON MUSEUM OF ART AT PASADENA

AND NORTON SIMON ART FOUNDATION,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF OF THE COMMISSION FOR ART

RECOVERY AS AMICUS CURIAE IN

SUPPORT OF CERTIORARI

AND PETITIONER

Owen C. Pell

Counsel of Record

Sequoia K aul

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 819-8200

opell@whitecase.com

Counsel for Amicus Curiae

Agnes Peresztegi

Of Counsel

Soffer Avocats

4 Rue Quentin Bauchart

75008 Paris, France

33 (0)1.53.23.02.00

287358

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

THE UNIQUE NATURE OF NA ZI

LOOTING MUST BE CONSIDERED

IN A SSESSING HOLOCAUST-ERA

ART CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. U.S. POLICY NEVER GAVE EFFECT

TO HOLOCAUST-ERA LOOTING . . . . . . . . . . 9

III. U.S. POLICY HAS NEVER ALLOWED

THE ACT OF STATE DOCTRINE

TO PROTECT TAINTED TITLE TO

NAZI-LOOTED PROPERTY LOCATED

IN THE UNITED STATES . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF CITED AUTHORITIES

Page

Cases

American Ins. Assn. v. Garamendi,

539 U.S. 396 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bernstein v. N.V. Nederlandsche-Amerikaansche

Stoomvaart-Maatschappij,

76 F. Supp. 335 (S.D.N.Y. 1948), aff’d,

173 F.2d 71 (2d Cir. 1949) . . . . . . . . . . . . . . . . . . . . . . 16

Bernstein v. N.V. Nederlandsche-Amerikaansche

Stoomvaart-Maatschappij,

210 F.2d 375 (2d Cir. 1954) . . . . . . . . . . . . . . . . . passim

Bernstein v.

Van Heyghen Freres Societe Anonyme,

163 F.2d 246 (2d Cir. 1947) . . . . . . . . . . . . . . . . . . . . . 15

Gowen v. Helly Nahmad Gallery,

2018 N.Y. Misc. LEXIS 1625

(Sup. Ct., N.Y. Cty., May 8, 2018) . . . . . . . . . . . . 14, 19

Reif v. Nagy,

2018 N.Y. Misc. LEXIS 3560

(Sup. Ct., N.Y. Cty. Apr. 6, 2018) . . . . . . . . . . . . . . . . 14

State of Netherlands v. Fed. Res. Bank,

201 F.2d 455 (2d Cir. 1953) . . . . . . . . . . . . . . . . . . 16, 17

United States v. Goering,

6 F.R.D. 69 (Int’l Mil. Trib. 1946) . . . . . . . . . . . . . . . . 4

iii

Cited Authorities

Page

W.S. Kirkpatrick & Co. v.

Envtl. Tectonics Corp., Int’l,

493 U.S. 400 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Statutes and Other Authorities

1943 Inter-Allied Declaration Against Acts of

Dispossession Committed in Territories Under

Enemy Occupation or Control (Jan. 5, 1943),

reprinted in 8 Dep’t St. Bull. 21 (1943) . . . . . . . . . . . 8

Adam, Norton Simon Museum, https://www.

nortonsimon.org/art/detail/M.1971.1.P . . . . . . . . . . . 2

Annemarie Marck & Eelke Muller, National

Panels Advising on Nazi-Looted Art in Austria,

France, the United Kingdom, the Netherlands

and Germany, in Fair and Just Solutions?

Alternatives to Litigation in Nazi-Looted Art

Disputes: Status Quo and New Developments

41-90 (Evelien Campfens ed., 2015) . . . . . . . . . . . . 6, 7

A rdel i a Ha l l, T he Recover y of Cu lt u ra l

Objects Dispersed During World War II,

25 Dep’t St. Bull. 337 (1951) . . . . . . . . . . . . 3, 10, 11, 12

A rdelia Hall, U.S. Program for Return of

Historic Objects to Countries of Origin,

1944-1954, 31 Dep’t St. Bull. 493 (1954) . . . . . . . . 8, 11

iv

Cited Authorities

Page

Besluit Rechtsverkeer in Oorlogstijd 7 juni

1940 [Dutch Decree on War-time Legal

Transactions], Stb. 1940, A6 (Nr.) . . . . . . . . . . . . . . . . 8

Emily J. Henson, The Last Prisoners of War:

Returning World War II Art to Its Rightful

Owners, 51 DePaul L. Rev. 1103 (2002) . . . . . . . . . . . 3

Eve, Norton Simon Museum, https://w w w.

nortonsimon.org/art/detail/M.1991.1.P . . . . . . . . . . . 2

Hague Convention Respecting the Laws and

Customs of War on Land, Oct. 18, 1907,

36 Stat. 2277, T.S. No. 539 . . . . . . . . . . . . . . . . . . . . . . 7

Hector Feliciano, Owen Pell, & Nick Goodman,

Nazi-Stolen Art, 20 Whittier L. Rev. 67

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hector Feliciano, The Lost Museum (Hector

Feliciano & Tim Bent trans., 1997) . . . . . . . . . . . . . . . 5

Holocaust Expropriated Art Recovery Act of 2016,

Pub. L. No. 114-308, 130 Stat. 1524 (2016) . . . . . . . . 14

Holocaust Victims Redress Act of 1989, Pub.

L. No. 105-158, 112 Stat. 15 (1998) . . . . . . . . . 5, 12, 13

Ir w in Cotler, The Holocaust , Thef ticide ,

an d Restitution: A Legal Perspective,

20 Cardozo L. Rev. 601 (1998) . . . . . . . . . . . . . . . . . . . 6

v

Cited Authorities

Page

Jonathan Petropoulos, Art as Politics in the

Third Reich (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Jonathan Petropoulos, The Faustian Bargain:

The Art World in Nazi Germany (2000) . . . . . . . . . . . 5

Lynn H. Nicholas, The Rape of Europa: The

Fate of Europe’s Treasures in the Third

Reich and the Second World War (1995) . . . . . . . . 5, 9

Memorandum for the Coordinating Committee,

Allied Control Authority (Berlin, Dec. 6,

1945), Foreign Relations of the United States:

Diplomatic Papers, 1944-1945, General: Political

and Economic Matters, vol. ii . . . . . . . . . . . . . . . . . . . 9

M icha el J. Ba z yler et a l., S ea rch i ng for

Justice A fter the Holocaust: Fulf illing

the Terezín Declaration and Immovable

Property Restitution (2019) . . . . . . . . . . . . . . . . . . . . . 7

Michelle I. Turner, The Innocent Buyer of

A r t L o o t e d d u r i n g Wo r l d Wa r I I,

32 Vand. J. Transnat’l L. 1511 (1999) . . . . . . . . . . . . . 5

Milton Esterow, Europe is Still Hunting Its

Plundered Art: Hundreds of Millions of

Treasures Elude Postwar Search, N.Y. Times,

Nov. 16, 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

vi

Cited Authorities

Page

Penelope J. E. Davies et al., Janson’s History of

Art: The Western Tradition (8th ed. 2010) . . . . . . . . 2

P e t i t i o n f o r W r i t o f C e r t i o r a r i , Vo n

Saher v. Norton Simon Museum of Art,

No. 18-1057 (filed Feb. 14, 2019) . . . . . . . . . . . . . . . . . 17

Presidential Advisory Comm’n on Holocaust

Assets in the U.S., Plunder and Restitution: The

U.S. and Holocaust Victims’ Assets: Findings

and Recommendations of the Presidential

Advisory Commission on Holocaust Assets in

the United States and Staff Report (2000) . . . . . . . 13

P r e s s R e le a s e , U. S . D ep ’t of S t at e ,

Jurisdiction of U.S. Courts Re Suites for

Identif iable Proper ty Involved in Nazi

Forced Transfers (Apr. 27, 1949) . . . . . . . . . . . . . . . . 16

Raphael Lemkin, Axis Rule in Occupied Europe

(Joseph Perkovich ed., 2d ed. 2008) . . . . . . . . . . . . . . 4

Richard Z. Chesnoff, Pack of Thieves: How Hitler

and Europe Plundered the Jews and Committed

the Greatest Theft in History (2001) . . . . . . . . . . . . . 5

Stuart E. Eizenstat, Art stolen by the Nazis is

still missing. Here’s how we can recover it.,

Wash. Post, Jan. 2, 2019 . . . . . . . . . . . . . . . . . . . . . . . 20

vii

Cited Authorities

Page

T hé r è s e O ’ D on ne l l , T h e R e s t i t u t i o n of

Holocaust Looted Art and Transitional

Justice: The Perfect Storm or the Raft of

the Medusa?, 22 Eur. J. Int’l L. 49 (2011) . . . . . . . . . 12

U.S. Holocaust Assets Commission Act of 1998,

Pub. L. No. 105-186, 122 Stat. 611 (1998) . . . . . . . . . 13

U.S. Military Law No. 52 (Blocking and Control of

Property), 12 Fed. Reg. 2187 (Apr. 3, 1947) . . . . . . 8, 9

U.S. Military Law No. 59 (Restitution of Identifiable

Property), 12 Fed. Reg. 7979 (Nov. 29, 1947) . . . . 9, 10

Wouter Veraa r t, Two Rounds of Postwar

Restitution and Dignity in the Netherlands

and France, 41 L. & Soc. Inquiry 956 (2016) . . . . . 11

1

INTEREST OF AMICUS CURIAE

T he Com m ission for A r t Recover y (“CA R”)

respectfully submits this amicus curiae brief in support

of the Petition for Writ of Certiorari.1 CAR is a New Yorkbased nonprofit organization, dedicated to seeking justice

for victims of Nazi art theft during the Holocaust. CAR

is not a claims organization, and only engages directly

with Holocaust-looted art claims if doing so furthers

policies and processes promoting restitution, including the

recognition that theft of cultural objects during genocide

is a crime against humanity. Over the past fifteen years,

CAR has worked closely with governments, lawyers,

scholars, and art experts to safeguard the legal rights

of Holocaust survivors and heirs, and to encourage the

adoption of practices and principles that redress the

injustices surrounding Holocaust-looted art.

CAR has an interest in this case because the Ninth

Circuit’s decision on Act of State grounds ignores the

unprecedented nature of the Holocaust and fundamentally

misinterprets the historical stance of the United States

regarding Nazi-looted art. During the Third Reich, the

Nazis stole hundreds of thousands of museum-quality

artworks by artists such as Pablo Picasso, Johannes

Vermeer, Gustav Klimt, and, of course, Lucas Cranach

the Elder—the artist whose paintings are at issue here.

1. Both parties consented to amicus submissions by a blanket

consent filed with the Clerk of the Court. No counsel for a party

authored this brief in whole or in part, and no such counsel or party

made a monetary contribution intended to fund the preparation or

submission of this brief. No person other than the amicus curiae,

or its counsel, made a monetary contribution to its preparation or

submission.

2

The return of “Adam”2 and “Eve,”3 as two of the most

iconic paintings in the Western canon, is of particular

significance. The Cranachs are perhaps the most highprofile artworks still unreturned to their rightful owners;

indeed, every art history student would easily recognize

them. 4 In light of their unmistakably tainted provenance,

the Cranachs—as presently displayed by the Norton

Simon—represent not the glory of mankind’s beginning,

but a stain left by the Holocaust.

SUMMARY OF ARGUMENT

The horrors of the Holocaust are unparalleled. During

the Third Reich, the Nazi government masterminded and

executed a systematic looting campaign unprecedented

in scope and unwavering in cruelty. Holocaust looting

encompassed more than traditional notions of wartime

plunder, and included outright theft, “Aryanization,” and

the forced sale of Jewish property—all which played an

integral role in the destruction of European Jewry. But

what made Holocaust looting truly distinct was the manner

by which the Third Reich turned traditional precepts of

property law upside down, using seemingly legal means

to strip Jews of private property while commingling

that property with looted state and religious property

scattered across Europe. European countries then lacked

legal precedent to address the problems created by this

2. Adam, Norton Simon Museum, https://www.nortonsimon.

org/art/detail/M.1971.1.P (last visited Mar. 10, 2019).

3. Eve, Norton Simon Museum, https://www.nortonsimon.org/

art/detail/M.1991.1.P (last visited Mar. 10, 2019).

4. See, e.g., Penelope J. E. Davies et al., Janson’s History of

Art: The Western Tradition 19 (8th ed. 2010).

3

mass of looted property, and struggled to do systematic

justice to Holocaust victims after World War II.

Because the very nature of Holocaust looting renders

claims involving Nazi-looted art vastly different from

ordinary property disputes, it has long been a tenet of

U.S. policy to invalidate transfers of property stolen by

the Nazis. Indeed, as early as 1951, the State Department

recognized that “[f]or the first time in history, restitution

may be expected to continue for as long as the works of

art known to have been plundered during a war continue

to be rediscovered.”5 This case proves the wisdom of

that statement. Hundreds of thousands of works of

art belonging to victims of Nazi persecution are still

missing—these works have been aptly termed “the last

prisoners of war.”6

In holding that the Act of State doctrine prevents

the examination of whether the Norton Simon Museum

acquired valid title to the Cranachs, the Ninth Circuit

made three fundamental errors, which could color how

other courts will analyze the many Holocaust-looted

art cases still percolating through the court system.

First, the Ninth Circuit ignored the unique nature of

Holocaust-looted art and how it affects the status of that

property. Second, the Ninth Circuit ignored the unique

and consistent response by the United Sates to Holocaust

looting: Since 1943, the United States has made clear that

5. Ardelia Hall, The Recovery of Cultural Objects Dispersed

During World War II, 25 Dep’t St. Bull. 337, 339 (1951).

6. Emily J. Henson, The Last Prisoners of War: Returning

World War II Art to Its Rightful Owners, 51 DePaul L. Rev. 1103

(2002).

4

even seemingly legal state actions having the effect of

furthering Holocaust looting should not be given effect.

Rather, U.S. policy favors the rightful owner. Third, the

Ninth Circuit’s use of the Act of State doctrine to protect

tainted title to looted art located in the United States

is directly at odds with the U.S. government’s explicit

directive that, in assessing the effects of Holocaust-era

decrees on property rights, U.S. courts are “relieve[d] . .

. from any restraint . . . to pass on the validity of the acts

of Nazi officials.” See Bernstein v. N.V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 210 F.2d 375,

376 (2d Cir. 1954).

ARGUMENT

I.

THE UNIQUE NATURE OF NAZI LOOTING

M UST BE CONSIDERED I N A S SES SI NG

HOLOCAUST-ERA ART CLAIMS

The Nazi regime murdered six million men, women,

and children simply because they had Jewish blood. From

1933 to 1945, the Nazis wielded the rule of law as a tool

of oppression, enacting over 400 decrees and regulations

aimed at eradicating “Jewish corruption” from all spheres

of life across German-controlled Europe.7 For each victim,

death was only the final step in a state-administered

process of exclusion, expropriation, and extermination.

Indeed, “The Nazi regimentation of inhumanity we

characterize as the Holocaust, marked most horrifically

7. United States v. Goering, Judgment, 6 F.R.D. 69, 79-82,

126-30 (Int’l Mil. Trib. 1946) [hereinafter Nuremberg Judgment];

see also Raphael Lemkin, Axis Rule in Occupied Europe 25-31, 7590 (Joseph Perkovich ed., 2d ed. 2008).

5

by genocide and enslavement, also entailed widespread

destruction, confiscation, and theft of property belonging

to Jews.” American Ins. Assn. v. Garamendi, 539 U.S.

396, 430 (2003) (Ginsburg, J., dissenting). Of the hundreds

of anti-Jewish measures enacted by the Nazi regime, those

aimed at Jewish property created “an almost inescapable

legal net which the Nazis used to snare their victims.”8

Across Europe, Jewish businesses and assets (including

art and cultural property) were subject to forced “legal”

sale to “Aryan” trustees for a fraction of their value.9

It is well documented that art was especially prized

by the Nazis, who competed fiercely to obtain Jewishowned artworks by any means necessary.10 But the Nazis’

policy of looting art was not designed simply to enrich

the Third Reich; it was integral to Adolf Hitler’s goal of

eliminating all vestiges of Jewish culture and identity.11 To

8. Jonathan Petropoulos, Art as Politics in the Third Reich

84 (1996).

9. Richard Z. Chesnoff, Pack of Thieves: How Hitler and

Europe Plundered the Jews and Committed the Greatest Theft in

History 8–9 (2001); Jonathan Petropoulos, The Faustian Bargain:

The Art World in Nazi Germany 27 (2000). See also Lynn H. Nicholas,

The Rape of Europa: The Fate of Europe’s Treasures in the Third

Reich and the Second World War 104 (1995).

10. See, e.g., Michelle I. Turner, The Innocent Buyer of Art

Looted during World War II, 32 Vand. J. Transnat’l L. 1511, 1513-19

(1999); Hector Feliciano, The Lost Museum 37-38 (Hector Feliciano

& Tim Bent trans., 1997); Nicholas, supra note 9, at 9–10, 41–49.

11. See Holocaust Victims Redress Act, Pub. L. No. 105-158, §

201(4), 112 Stat. 15, 17 (1998) (“The Nazis’ policy of looting art was a

critical element and incentive in their campaign of genocide against

individuals of Jewish and other religious and cultural heritage . . . .”).

6

that end, the Nazis masterminded an unprecedented and

systematic looting campaign, by which desirable artworks

were meticulously inventoried and then stolen, confiscated,

or “purchased” from Jewish owners desperate to escape

German-controlled Europe. All told, the Nazis and their

local collaborators looted millions of works of art from

Jews—the greatest “thefticide” in history.12

Immediately upon invading the Netherlands in May

1940, the Nazi occupiers began to implement anti-Jewish

policies and, through a series of regulations, isolated and

stripped Dutch Jews of both property and citizenship.13

In short order, Germany imposed discriminatory

registration laws, placed all Jewish businesses under Nazi

control, and auctioned off Jewish-owned art collections.

There is no dispute here that the Goudstikker collection

was subjected to this treatment. By May 1942, the Nazis

had forced Dutch Jews to transfer all monetary and

other valuable assets to Lippmann, Rosenthal & Co.

(“Liro”), a “looting institution” set up exclusively for that

purpose. Mass deportations commenced that same year,

and empty Jewish homes were ransacked. All remaining

Jewish-owned property of value, including art, was then

confiscated by the Nazis and taken to Liro, which kept a

12. Irwin Cotler, The Holocaust, Thefticide, and Restitution:

A Legal Perspective, 20 Cardozo L. Rev. 601, 602 (1998) (using the

term “thefticide” to describe what was “the greatest mass theft on

the occasion of the greatest mass murder in history”).

13. Petropoulos, supra note 8, at 139–44; Annemarie Marck

& Eelke Muller, National Panels Advising on Nazi-Looted Art

in Austria, France, the United Kingdom, the Netherlands and

Germany, in Fair and Just Solutions? Alternatives to Litigation in

Nazi-Looted Art Disputes: Status Quo and New Developments 41-90

(Evelien Campfens ed., 2015).

7

running inventory of looted art.14 Ultimately, less than

20% of the pre-war Dutch Jewish population of 140,000

survived the Holocaust.15

Nothing about Holocaust-era looting resembled

ordinary property loss. Jews lucky enough to escape Nazioccupied Europe faced both practical and legal obstacles

to regaining looted property. Having been stripped of

all rights to property under law, Jews lacked any real

capacity—even from afar—to make inquiries into what

may have happened to their possessions or seek recourse

through normal legal or commercial channels. The Nazis

also used apparently legal means to divest Jews of their

property, further complicating the ability of survivors

to challenge the loss of cherished artworks during the

post-war period.

The Allies were aware of the Nazi regime’s widespread

looting campaign and viewed it as violating longstanding

international law and customs of war.16 In 1943, as the tide

of war turned, the United States and its Allies issued a

14. Marck & Muller, supra note 13, at 71-72.

15. Michael J. Bazyler et al., Searching for Justice After

the Holocaust: Fulfilling the Terezín Declaration and Immovable

Property Restitution 292-93 (2019).

16. Under the 1907 Hague Convention, confiscation of private

property and “[a]ll seizure of . . . works of art” in times of war was

expressly forbidden. Hague Convention Respecting the Laws and

Customs of War on Land, Arts. 46 & 56, Oct. 18, 1907, 36 Stat. 2277,

T.S. No. 539. Indeed, one of the architects of Nazi Germany’s looting

campaign, Alfred Rosenberg, was indicted for and convicted of

the crime of looting at the Nuremberg War Crime Trials, and was

hanged. See Nuremberg Judgment, supra note 7, at 293-96.

8

solemn warning. The London Declaration promised that

the Allies would “do their utmost to defeat the methods

of dispossession practiced by the governments with which

they [were] at war against [on behalf of] the countries

and peoples who have been so wantonly assaulted

and despoiled.”17 Recognizing that Nazi Germany was

attempting to cloak “the stealing and forced purchase of

works of art” in seeming legality, the Allies specifically

“reserve[d] their rights to declare invalid any transfers of,

or dealings with, property . . . whether such transfers or

dealings have taken the form of open looting or plunder,

or of transactions apparently legal in form, even when

they purport to be voluntarily effected.”18 Each Allied

government then was tasked with effectuating that

promise.19

In London, the Dutch government-in-exile enacted a

series of emergency decrees forbidding all transactions

with the Nazis and preemptively declaring all such

transactions null and void. 20 In 1945, the United States

enacted Military Law No. 52, which prohibited all

trafficking of art and other cultural property from

17. 1943 Inter-Allied Declaration Against Acts of Dispossession

Committed in Territories Under Enemy Occupation or Control

(Jan. 5, 1943), reprinted in 8 Dep’t St. Bull. 21 (1943) (“London

Declaration”).

18. Id.

19. Ardelia Hall, U.S. Program for Return of Historic Objects

to Countries of Origin, 1944-1954, 31 Dep’t St. Bull. 493, 495 (1954).

20. Besluit Rechtsverkeer in Oorlogstijd 7 juni 1940 [Dutch

Decree on War-time Legal Transactions], Stb. 1940, A6 (Nr.).

9

U.S.-occupied territories. 21 Military Law No. 59 then

declared presumptively invalid all transfers of property

from groups persecuted by the Third Reich. 22 The Allies

expressly recognized that Holocaust looting was in a

category all its own; its sheer scale and unique nature

rendered the legal niceties of ordinary property law

inadequate. Thus, Holocaust-looted art assumed special

status in U.S. policy—the ultimate goal being restitution

of that property to its rightful owners.

II. U. S . POLICY N EV ER GAV E EFFECT TO

HOLOCAUST-ERA LOOTING

At the end of the war, the Allies implemented

measures to catalogue looted art and disseminate those

lists to art dealers and museums. Complicating that task

was that private property looted by the Nazis had been

commingled with looted state and religious property,

and had often been moved to locations scattered across

Germany. 23 Ultimately, the Allies left legal restoration of

ownership rights to individual governments.24 At the July

1945 Potsdam Conference, President Truman approved

the external restitution process by which the United

States repatriated identifiable art and other cultural

21. U.S. Military Law No. 52 (Blocking and Control of

Property), 12 Fed. Reg. 2187, 2196 (Apr. 3, 1947).

22. U.S. Military Law No. 59 (Restitution of Identifiable

Property), 12 Fed. Reg. 7979, 7983 (Nov. 29, 1947).

23. See generally Nicholas, supra note 9.

24. Id. at 323. See, e.g., Memorandum for the Coordinating

Committee, Allied Control Authority (Berlin, Dec. 6, 1945), Foreign

Relations of the United States: Diplomatic Papers, 1944-1945,

General: Political and Economic Matters, vol. ii, 956-58.

10

objects recovered by the Allied Forces to their country

of origin. Receiving nations, in turn, were expected to

reunite rightful owners with that property. 25

Central to U.S. policy was the understanding

that Nazi-looted art was “tainted” by the Holocaust.

Specifically, works of art that changed hands during the

Third Reich “would never be saleable.”26 Hence, under

Military Law No. 59, a subsequent holder of Nazi-looted

art—even one allegedly having acquired it in good faith—

was subordinated to the rights of the original owners. 27

Consistent with this legal principle, art recovered in

the U.S. Zone of post-war Germany was returned to

originating countries on the express condition that

the receiving government agree to hold artworks “as

custodians” until those works could be returned to their

rightful owners.28 Indeed, the return of “Adam” and “Eve”

25. This determination was made by the Interdivisional

Committee on Reparations, Restitution, and Property Rights,

established by the U.S. State Department in November 1943 for the

purpose of carrying out the external restitution of Nazi-looted art.

26. Hall, supra note 5, at 339.

27. U.S. Military Law No. 59, supra note 22, § 3.75(2)

(“Property shall be restored to its former owner . . . even though

the interest of other persons who had no knowledge of the wrongful

taking must be subordinated.”). Echoing the London Declaration,

Law No. 59 included any transaction “contra bono mores, threats or

duress, or an unlawful taking of any other tort.” Id. § 3.76(1).

28. The text on the “receipt and agreement for delivery of

cultural objects” from the U.S. Zone reads: “The said Government

hereby agrees . . . as custodians, pending the determination of the

lawful owners . . . .” NARA M1941, Records Concerning the Central

Collection Points (“Ardelia Hall Collection”), OMGUS Headquarters

Records 1938-1951.

11

to the Netherlands in 1945 was just so conditioned on their

ultimate restitution. Thus, the fact that Dutch post-war

policies treated this custodial property as “owned” by

the Netherlands—a policy the Dutch government has

now expressly repudiated 29 —never found approval in U.S.

policy or practice.

The London Declaration was an “early warning

system” to potential U.S. acquirers that art emanating

from post-war Europe was presumptively tainted.

Subsequently, the U.S. government made clear that

“introduction of looted objects of art into this country is

contrary to the general policy of the United States” and

that “[i]t is incumbent upon this Government, therefore,

to exert every reasonable effort to right such wrongs as

may be brought to light.”30 Under this policy, the U.S. State

Department issued explicit warnings to all museums, art

dealers, and universities not to acquire artworks with

undocumented or incomplete provenance. 31 Despite these

warnings, the State Department ultimately recovered

29. In 2000, the Prime Minister wrote that the Dutch

government “fully recognizes—looking back with the knowledge and

eyes of today—that there has been too much formalism, bureaucracy

and especially bleakness in the restitution process [of the 1940s and

50s]. For this, the government expresses sincere regret and offers

apologies to those who then suffered . . . .” See Wouter Veraart, Two

Rounds of Postwar Restitution and Dignity in the Netherlands and

France, 41 L. & Soc. Inquiry 956, 966 (2016).

30. See Hall, supra note 19, at 495-96.

31. See, e.g., id. at 493-98. One such State Department letter

explained that the Government shared with “American institutions”

its “responsibility . . . to recover and return to owner nations . . .

works of art[] . . . looted, stolen or improperly dispersed from public

and private collections in war areas and brought to the United States

during and following World War II.” Hall, supra note 5, at 340.

12

nearly 4,000 looted artworks in the United States for

restitution to their countries of origin. 32

Remarkably, as early as 1951, the State Department

realized that “[f]or the first time in history, restitution

may be expected to continue for as long as the works of

art known to have been plundered during a war continue

to be rediscovered.”33 Today, almost 75 years after the

end of World War II, the task of returning artwork

“confiscated” by the Nazis remains unfinished. Hundreds

of thousands of looted artworks are still missing, and

these works—stolen from victims of Nazi persecution

and never returned—have been aptly termed “the last

prisoners of war.”34

The U.S. Congress has taken steps in response to

the sheer number of claims and attendant litigation

that continue to arise—as well as the legal hurdles that

continue to confront true owners of Holocaust-looted art.

In 1998, to reiterate U.S. policy on the return of Nazilooted art to its rightful owners, Congress enacted the

Holocaust Victims Redress Act. 35

32. Milton Esterow, Europe is Still Hunting Its Plundered

Art: Hundreds of Millions of Treasures Elude Postwar Search, N.Y.

Times, Nov. 16, 1964, at 1 (reporting that 3,978 stolen art objects

were recovered in the United States between 1945-1962).

33. Hall, supra note 5, at 339.

34. Henson, supra note 6; see also Thérèse O’Donnell, The

Restitution of Holocaust Looted Art and Transitional Justice: The

Perfect Storm or the Raft of the Medusa?, 22 Eur. J. Int’l L. 49, 51

(2011); Hector Feliciano, Owen Pell, & Nick Goodman, Nazi-Stolen

Art, 20 Whittier L. Rev. 67, 72 (1998).

35. Holocaust Victims Redress Act of 1989, Pub. L. No. 105158, 112 Stat. 15 (1998).

13

Directly addressing works of art, the Act states: “It

is the sense of the Congress that consistent with the 1907

Hague Convention, all governments should undertake

good faith efforts to facilitate the return of private and

public property, such as works of art, to the rightful

owners in cases where assets were confiscated from

the claimant during the period of Nazi rule and there is

reasonable proof that the claimant is the rightful owner.”36

Solidifying its commitment to this policy, the United

States created the Presidential Advisory Commission on

Holocaust Assets (“PCHA”) to investigate the progress

of Holocaust-era restitution since the 1943 London

Declaration. 37 The PCHA’s report reflected “a general

sense that the closing of the millennium demands that

Western society seek to effect the maximum measure of

justice possible for the victims of Nazi crimes.”38 Those

findings marked a renewed commitment to uncovering

the truth about the past—a commitment that “has been,

and must remain, a fundamental component of American

democracy’s pursuit of justice and human dignity.”39

36. Id. § 202.

37. The PCHA was created by the U.S. Holocaust Assets

Commission Act of 1998, Pub. L. No. 105-186, 122 Stat. 611 (1998),

which passed Congress by unanimous support and was signed into

law by President Clinton on June 23, 1998.

38. Presidential Advisory Comm’n on Holocaust Assets in

the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’

Assets: Findings and Recommendations of the Presidential Advisory

Commission on Holocaust Assets in the United States and Staff

Report, i-ii (2000).

39. Specifically, the report recognizes that “restitution of

Holocaust-era assets involves not only the material restitution of

what was stolen, but also the moral restitution that is accomplished

by confronting the past honestly and internalizing its lessons.” Id.

14

Then, in 2016, Congress went further, taking

measures “to ensure that claims to Nazi-confiscated art

are adjudicated [in a fair and just manner] in accordance

with United States policy . . . .”40 Recognizing the “unique

and horrific circumstances of World War II and the

Holocaust,” Congress passed the Holocaust Expropriated

Art Recovery (HEAR) Act of 2016 with bipartisan

support, creating a six-year federal statute of limitations

to file a claim only after a claimant has discovered the

identity and location of a looted work. 41 Thus, U.S. policy

40. Holocaust Expropriated Art Recovery Act of 2016, Pub.

L. No. 114-308, §§ 2(1), (6)-(7), 3, 5(a), 130 Stat. 1524, 1524-26 (2016)

[hereinafter HEAR Act]. Indeed, due to the turmoil of the Holocaust

period and the sheer passage of time, information regarding looted

artworks is often fragmented or lost completely. Significantly, the

Dutch government now recognizes this as to Holocaust-looted art

claims. Marck & Muller, supra note 13, at 78 (translating June 22,

2012 Letter of the Dutch Secretary of State for Education, Culture

and Science to the Lower House); see also Petition for Writ of

Certiorari, Von Saher v. Norton Simon Museum of Art, No. 18-1057

(filed Feb. 14, 2019), at 15-16.

41. HEAR Act at § 5(a). Following the HEAR Act, several

Nazi-looted art claims against museums and private art collectors

have survived motions to dismiss on statute of limitations grounds.

See, e.g., Gowen v. Helly Nahmad Gallery, 2018 N.Y. Misc. LEXIS

1625 (Sup. Ct., N.Y. Cty., May 8, 2018) (rejecting, inter alia, gallery’s

statute of limitations defense to claim for Modigliani painting that

was subject to forced sale during the Holocaust); Reif v. Nagy, 2018

N.Y. Misc. LEXIS 3560 (Sup. Ct., N.Y. Cty. Apr. 6, 2018) (adjudicating

title rights of heirs to two Schiele drawings against professional art

dealer, and holding that the HEAR Act “compels [courts] to help

return Nazi-looted art to its heirs” and instructs them “to be mindful

of the difficulty of tracing artwork provenance due to the atrocities

of the Holocaust era, and to facilitate the return of property where

there is reasonable proof that the rightful owner is before us”).

15

has never given effect to Holocaust looting in the United

States, and that policy has been consistent since World

War II.

III. U.S. POLICY HAS NEVER ALLOWED THE

ACT OF STATE DOCTRINE TO PROTECT

TAINTED TITLE TO NAZI-LOOTED PROPERTY

LOCATED IN THE UNITED STATES

Consistent with its policy during and after World War

II, the United States has unequivocally stated that the Act

of State doctrine has no application to claims testing the

effects of confiscatory Nazi decrees as to property located

in the United States. In 1949, for example, the State

Department intervened in the Second Circuit in support

of claimants dispossessed as a result of Nazi persecution.

In Ber nstein v. Van Heyghen Freres Societe

Anonyme, Arnold Bernstein, a German Jew, sought to

recover property from his shipping business, which had

been subject to forced transfer by the Nazis. 163 F.2d 246,

247 (2d Cir. 1947) (Hand, J.). Bernstein’s first claim to

recover his property was dismissed under the Act of State

doctrine, 42 with the Court noting that the United States

had not “indicated any positive intent to relax to doctrine

that our courts shall not entertain actions of the kind at

bar.” Id. at 251. Bernstein then sued the transferees of his

second shipping line for damages and lost profits resulting

from the initial seizure by the Nazis, but his claim was

42. Judge Hand reasoned that, although “a German court would

have held the transfer unlawful at the time it was made, . . . a court

of the forum will not undertake to pass judgment upon the validity

under the municipal law of another state of the acts of officials of

that state, purporting to act as such.” Bernstein, 163 F.2d at 251.

16

again dismissed on Act of State grounds. Bernstein

v. N.V. Nederlandsche-Amerikaansche StoomvaartMaatschappij, 76 F. Supp. 335, 340 (S.D.N.Y. 1948), aff’d,

173 F.2d 71 (2d Cir. 1949).

In response, Jack Tate, the Legal Advisor of the State

Department, issued the now famous “Bernstein Letter,”

rejecting use of the Act of State doctrine and expressing

the affirmative policy of the United States “with respect

to claims asserted in the United States for the restitution

of identifiable property (or compensation in lieu thereof)

lost through force, coercion, or duress as a result of

Nazi persecution, . . . to relieve American courts from

any restraint upon the exercise of their jurisdiction to

pass on the validity of the acts of Nazi officials.”43 Based

on the Bernstein Letter, the Second Circuit reversed

itself in a per curiam decision and allowed Bernstein to

proceed on the merits, permitting him to recover damages

and lost profits. See Bernstein v. N.V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 210 F.2d 375,

376 (2d Cir. 1954).

During this period, and consistent with Bernstein,

the Second Circuit also allowed the Dutch government to

pursue bearer bonds located in the United States which had

been confiscated by the Nazis during German occupation

of the Netherlands. See State of Netherlands v. Fed. Res.

Bank, 201 F.2d 455, 456 (2d Cir. 1953). In granting comity

to a decree of the Dutch government-in-exile, the Second

Circuit expressly hinged recognition on the fact that the

43. Press Release, U.S. Dep’t of State, Jurisdiction of U.S.

Courts Re Suites for Identifiable Property Involved in Nazi Forced

Transfers (Apr. 27, 1949) (“Bernstein Letter”).

17

Dutch decree in issue was designed specifically to protect

the title of the true owners. Thus, Judge Clark recognized

“the claim to protective possession by [the Netherlands]

under its obligation to act only for the conservation of the

rights of the former owners.” Id. at 461. As such—under

Bernstein and Federal Reserve Bank—foreign state

decrees relating to Nazi asset looting are only given

effect to the extent they align with established U.S. policy

protecting the rights of true owners.

By using the Act of State doctrine to shield a private

museum in possession of Holocaust-looted property in

the United States from the claims of its rightful owner,

the Ninth Circuit ignored this precedent, and ignored

U.S. policies from 1943 onward respecting the restitution

of art stolen or forcibly sold during the Third Reich.

Instead, the Ninth Circuit dismissed the directive of

Bernstein in a single footnote. Although noting that the

State Department has restricted the application of the

Act of State doctrine by “freeing up courts to pass upon

the validity of the acts of Nazi officials,” the Ninth Circuit

reasoned: “we do not pass upon the validity of the acts of

Nazi officials; rather, we pass upon the validity of the acts

of the Dutch government.” Von Saher v. Norton Simon

Museum of Art, 897 F.3d 1141, 1154 n. 13 (9th Cir. 2018)

(internal quotation marks and citations omitted).

This facile reasoning ignores that the Dutch

government effectively validated Nazi looting by treating

Holocaust-looted property as “ownerless” and thereby the

property of the Dutch state—including for purposes of

denying return to its true owners and then selling that

looted property. This position (which the Netherlands

has now expressly repudiated) not only runs counter to

18

longstanding U.S. policy meant to prevent such abuses

of law, but ignores the facts of Bernstein and belies the

broad purpose of the State Department’s intervention in

that case.

It is of no consequence that the Bernstein Letter to

the court referred to “acts of Nazi officials” and not those

of the Dutch government. Bernstein is directly on point,

as it involved a claim against a private holder of proceeds

of property confiscated by Germany rather than against

the German government itself. The point was that the

Act of State doctrine would not be used to shield a private

party holding property in the United States, the title of

which was tied to the illegal acts of the Nazi regime. This

mirrors the position of the Norton Simon.

The Ninth Circuit’s use of the Act of State doctrine

also runs counter to U.S. policy regarding how museums

were expected to act toward Holocaust-looted property.

It was never U.S. policy to protect from examination the

good faith of U.S. museums in acquiring art looted by

the Nazis. To the contrary, the United States warned

museums not to acquire or possess works of art with

tainted provenance and stressed that such acquisitions

would not be considered valid. Thus, the Norton Simon

was on notice that its conduct in acquiring works like the

Cranachs might be challenged, and cannot now be allowed

to invoke the Act of State doctrine to shield its knowledge

and claimed good faith from review. U.S. law and policy is

clear: No matter how many times looted property changes

hands, that property remains tainted by the Holocaust. 44

44. The Act of State doctrine is not implicated in Nazi-looted

art claims where theft and forced transfers of art and other valuables

by Nazi Germany were declared void ab initio. It is an age old maxim

19

Accordingly, it is unnecessary for a court to pass

judgment on the validity of any “act” of the Dutch

government in order to adjudicate the rights of the parties

here. As this Court held when it last spoke on the Act of

State doctrine: “Act of state issues only arise when a court

must decide—that is, when the outcome of the case turns

upon—the effect of official action by a foreign sovereign.

When that question is not in the case, neither is the act of

state doctrine.” W.S. Kirkpatrick & Co. v. Envtl. Tectonics

Corp., Int’l, 493 U.S. 400, 406 (1990). Museums like the

Norton Simon bear the risk of acquiring art stolen by

the Nazis and understand that restitution to the rightful

owners takes priority over the interests of any subsequent

possessor, thus obviating the need for a court to question

the now repudiated acts of the Dutch government.

The United States has time and time again expressed

the importance of resolving Holocaust-era claims on the

merits, and has precluded legal fictions—such as the idea

that the Netherlands had clean title to looted art it held

in custody for its true owners—to frustrate valid claims.

As was made clear in Bernstein, the policies underlying

the Act of State doctrine are therefore inapplicable to

Holocaust-looted art claims. 45 Given the continued flow

of U.S. law that a thief cannot convey good title; the Nazi campaign

of plunder and genocide did not divest their victims of ownership,

nor in its aftermath did the Allies intend for the victims’ property to

escheat to the state. Indeed, both the analysis and the outcome should

be the same as if the Cranachs were transferred to the museum by

the Nazis themselves.

45. See Gowen, 2018 N.Y. Misc. LEXIS, at *8 (explaining that

the Bernstein Letter as well as longstanding “historical and public

policy driven interests in adjudicating claims involving artwork

looted during the Nazi regime” make the Act of State doctrine

inappropriate in Holocaust-era art cases).

20

of Holocause-looted art claims requiring adjudication,

it is imperative that U.S. courts consistently apply “just

and fair” principles in these cases. In the words of Stuart

Eizenstat, former Commissioner of the PCHA:

“No self-respecting government, art dealer,

private collector, museum or auction house

should trade in or possess art stolen by the

Nazis. We must all recommit to faithfully

implementing the Washington Principles before

Holocaust survivors breathe their last breath.

We owe it not only to those who lost so much

in the Holocaust but also to our own sense of

moral justice.”46

The Act of State doctrine should thus not factor into

Holocaust-looted art cases against domestic museums,

and this Court should make that clear.

46. Stuart E. Eizenstat, Art stolen by the Nazis is still missing.

Here’s how we can recover it., Wash. Post, Jan. 2, 2019, https://www.

washingtonpost.com/opinions/no-one-should-trade-in-or-possessart-stolen-by-the-nazis/2019/01/02/01990232- 0ed3-11e9-831f3aa2c2be4cbd_story.html?utm_term=.5a4da8352058.

21

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari and reverse the decision of the

Ninth Circuit.

Dated: March 14, 2019

Respectfully submitted,

Agnes Peresztegi

Of Counsel

Soffer Avocats

4 Rue Quentin Bauchart

75008 Paris, France

33 (0)1.53.23.02.00

Owen C. Pell

Counsel of Record

Sequoia K aul

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 819-8200

opell@whitecase.com

Counsel for Amicus Curiae