Amicus Curiae Brief — David Cassirer, et al., Petitioners v. Thyssen-Bornemisza Collection Foundation
Supreme Court briefNov 22, 2021
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No. 20-1566
In the Supreme Court of the United States
DAVID CASSIRER, ET AL., PETITIONERS
v.
THYSSEN-BORNEMISZA COLLECTION FOUNDATION
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
MARY CATHERINE MALIN
Deputy Legal Adviser
Department of State
Washington, D.C. 20520
BRIAN H. FLETCHER
Acting Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
MASHA G. HANSFORD
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether a federal court hearing a state-law claim
against a foreign instrumentality pursuant to an exception to immunity under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1605, should apply the forum
State’s choice-of-law rule or use federal common-law to
select the law providing the rule of decision.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
State choice-of-law rules govern the selection of the law
that provides the rule of decision in an FSIA suit based
on state-law claims:
A. Section 1606 of the FSIA requires the application
of state choice-of-law rules in these circumstances ..... 11
B. Application of state choice-of-law rules comports
with the normal treatment of state law applied by
federal courts ................................................................... 18
C. The presence of a foreign state as a defendant in an
FSIA suit does not justify the creation of federal
common-law to govern choice of law ............................. 20
D. The reasons advanced by respondents and the court
of appeals for developing a federal common-law rule
lack merit.......................................................................... 23
Conclusion ................................................................................... 30
TABLE OF AUTHORITIES
Cases:
A.I. Trade Fin., Inc. v. Petra Int’l Banking
Corp., 62 F.3d 1454 (D.C. Cir. 1995) ................................. 17
Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) .................. 21
American Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003).............................................................. 21
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) .................................................... 2
Atherton v. FDIC, 519 U.S. 213 (1997) ................................ 20
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964).............................................................. 20
(III)
IV
Cases—Continued:
Page
Barkanic v. General Admin. of Civ. Aviation
of the People’s Republic of China,
923 F.2d 957 (2d Cir. 1991) .......................................... 15, 23
Bolivarian Republic of Venez. v. Helmerich & Payne
Int’l Drilling Co., 137 S. Ct. 1312 (2017) .......................... 28
Coca-Cola Co. v. Harmar Bottling Co.,
218 S.W.3d 671 (Tex. 2006) ................................................ 18
Crocker Nat’l Bank v. Byrne & McDonnell,
173 P. 752 (Cal. 1918).......................................................... 14
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000).............................................................. 21
Day & Zimmermann, Inc. v. Challoner,
423 U.S. 3 (1975) ........................................................... 19, 22
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155 (1999).............................................................. 27
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ................... 12, 18
Federal Republic of Ger. v. Philipp,
141 S. Ct. 703 (2021) ................................................... 4, 5, 28
First Nat’l City Bank v. Banco Para El Comercio
Exterior de Cuba, 462 U.S. 611 (1983) .................. 11, 12, 26
Harris v. Polskie Linie Lotnicze,
820 F.2d 1000 (9th Cir. 1987) ....................................... 23, 24
Healy v. The Beer Inst., 491 U.S. 324 (1989) ...................... 22
Indian Towing Co. v. United States,
350 U.S. 61 (1955) ............................................................... 29
J. Zeevi & Sons, Ltd. v. Grindlays Bank (Uganda)
Ltd., 333 N.E.2d 168 (N.Y.),
cert. denied, 423 U.S. 866 (1975) ....................................... 27
Jam v. International Fin. Corp.,
139 S. Ct. 759 (2019) ........................................................... 12
Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487 (1941).............................................. 8, 13, 17, 19
Lauritzen v. Larsen, 345 U.S. 571 (1953) ..................... 15, 21
V
Cases—Continued:
Page
Northrop Grumman Ship Sys., Inc. v.
Ministry of Def. of the Republic of Venez.,
575 F.3d 491 (5th Cir. 2009) ............................................... 23
O’Bryan v. Holy See,
556 F.3d 361 (6th Cir.), cert. denied,
558 U.S. 819 (2009).............................................................. 23
O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994) .............. 20
Oveissi v. Islamic Republic of Iran,
573 F.3d 835 (D.C. Cir. 2009) ................................. 12, 15, 23
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985).............................................................. 22
Richards v. United States, 369 U.S. 1 (1962)............. passim
Rodriguez v. FDIC, 140 S. Ct. 713 (2020) ........................... 20
Schoenberg v. Exportadora de Sal, S.A. de C.V.,
930 F.2d 777 (9th Cir. 1991) ........................................... 6, 24
State Sur. Co. v. Lensing,
249 N.W.2d 608 (Iowa 1977) .............................................. 18
Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) ....................... 17
United States v. Olson, 546 U.S. 43 (2005).......................... 29
Verlinden B. V. v. Central Bank of Nigeria,
461 U.S. 480 (1983).................................................. 11, 27, 28
Zschernig v. Miller, 389 U.S. 429 (1968) ............................. 21
Constitution and statutes:
U.S. Const.:
Art. I, § 8, Cl. 3 (Commerce Clause) ............................. 22
Art. IV, § 1 (Full Faith and Credit Clause) .................. 22
Amend. XIV (Due Process Clause) ............................... 22
Declaratory Judgment Act, 28 U.S.C. 2201 (2012) ........ 4, 13
Federal Tort Claims Act, 28 U.S.C. 1346, 2671 et seq. ........ 8
28 U.S.C. 1346(b) ............................................................. 26
28 U.S.C. 1346(b)(1) .................................................. 15, 16
VI
Statutes—Continued:
Page
28 U.S.C. 2674 .................................................................. 16
28 U.S.C. 2680 .................................................................. 26
Foreign Sovereign Immunities Act of 1976,
28 U.S.C. 1330, 1441(d), 1602 et seq. ............................... 1, 2
§ 2(a), 90 Stat. 2891 ......................................................... 25
28 U.S.C. 1330(a) ............................................... 2, 4, 25, 27
28 U.S.C. 1330(b) ............................................................... 2
28 U.S.C. 1441(d) ............................................................. 25
28 U.S.C. 1603(a) ......................................................... 2, 13
28 U.S.C. 1605 ........................................................ 2, 12, 13
28 U.S.C. 1605-1607........................................................... 2
28 U.S.C. 1605(a) ............................................................... 4
28 U.S.C. 1605(a)(3)........................................... 4, 5, 13, 28
28 U.S.C. 1605(b) ............................................................. 15
28 U.S.C. 1605(c) ............................................................. 17
28 U.S.C. 1605A ............................................................... 12
28 U.S.C. 1605B ............................................................... 12
28 U.S.C. 1606 ......................................................... passim
28 U.S.C. 1607 ........................................................ 2, 12, 13
28 U.S.C. 1608 .................................................................. 12
28 U.S.C. 1332(a)(2) (1970) ................................................... 24
28 U.S.C. 2402 ........................................................................ 26
Miscellaneous:
122 Cong. Rec. 17,468 (1976) ................................................ 17
H.R. Rep. No. 1487, 94th Cong., 2d Sess.
(1976) .............................................................11, 12, 20, 25, 27
Henry J. Friendly, In Praise of Erie—And of the
New Federal Common Law, 39 N.Y.U. L. Rev. 383
(1964) .................................................................................... 18
VII
Miscellaneous—Continued:
Page
Immunities of Foreign States: Hearing on
H.R. 3493 Before the Subcomm. on Claims and
Governmental Relations of the House Comm.
on the Judiciary, 93d Cong., 1st Sess. (1973) .................. 19
Restatement (Second) of Conflict of Laws (1971) .............. 17
S. Rep. No. 1310, 94th Cong., 2d Sess. (1976)..................... 11
Eugene F. Scoles & Peter Hay,
Conflict of Laws (1982)....................................................... 22
19 Charles Alan Wright et al., Federal Practice and
Procedure (2016) ........................................................... 18, 24
In the Supreme Court of the United States
No. 20-1566
DAVID CASSIRER, ET AL., PETITIONERS
v.
THYSSEN-BORNEMISZA COLLECTION FOUNDATION
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case concerns whether courts should apply state
or federal choice-of-law rules to select the law governing liability in suits coming within an exception to a foreign state’s immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1441(d),
and 1602 et seq. The interpretation of the FSIA has implications for the treatment of the United States in foreign courts and for its relations with other sovereigns.
At this Court’s invitation, the government participated
at an earlier stage in this case. See U.S. Br., Kingdom
of Spain v. Cassirer, No. 10-786 (May 27, 2011). Accordingly, the United States has a substantial interest in this
case.
(1)
2
STATEMENT
1. The Foreign Sovereign Immunities Act of 1976
(FSIA), 28 U.S.C. 1330, 1441(d), 1602 et seq., provides
the sole basis for jurisdiction in a civil suit in state or
federal court against a “foreign state,” which the Act
defines to include “an agency or instrumentality of a
foreign state.” 28 U.S.C. 1603(a); see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434435 & n.3 (1989). Under the FSIA, a foreign state is
immune from the jurisdiction of a U.S. court in a civil
action unless the claim against it comes within one of
the limited exceptions to immunity described in 28
U.S.C. 1605-1607. If a suit comes within a statutory exception to foreign sovereign immunity, the FSIA provides for subject-matter jurisdiction in federal district
court, 28 U.S.C. 1330(a), as well as for personal jurisdiction over the foreign state where service has been made
in accordance with the FSIA’s provisions. 28 U.S.C.
1330(b). Where one of the exceptions to immunity set
out in Section 1605 or 1607 applies, “the foreign state
shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28
U.S.C. 1606.
2. The question presented is a straightforward issue
of law, but it arises in a case with a long and complicated
procedural history. Petitioner Claude Cassirer brought
this action against the Thyssen-Bornemisza Collection
Foundation (Foundation), an instrumentality of the
Kingdom of Spain and respondent before this Court.
See Pet. App. B1. Petitioner sought to recover a paint-
3
ing that had been confiscated from his Jewish grandmother by the Nazi government. See ibid. 1
a. Petitioner’s grandmother, Lilly Cassirer Neubauer,
owned a painting by Camille Pissarro entitled Rue St.
Honoré, apres midi, effet de pluie. Pet. App. B1. After
years of intensifying persecution of German Jews by the
Nazis, Neubauer determined in 1939 that she had no
choice but to leave Germany. Id. at B2. Neubauer was
required to obtain permission from the Nazi government both to leave the country and to take any belongings with her. See id. at B2-B3.
In order for Neubauer and her husband to obtain exist visas, she was forced to transfer the Pissarro painting to Jakob Scheidwimmer, a Nazi art appraiser. Pet.
App. B2. He demanded that she surrender the painting
in exchange for approximately $360, to be paid into a
blocked bank account that Neubauer could not access.
Ibid. Scheidwimmer subsequently traded the painting
to another dealer, from whom it was confiscated by the
Gestapo and sold at auction to an unknown purchaser in
1943. Id. at B3. After a series of intervening sales, the
painting was purchased by Baron Hans Heinrich
Thyssen-Bornemisza, a prominent Swiss private collector. Id. at B3-B5. In 1993, Bornemisza sold his entire
art collection, including the Pissarro painting, to the
Foundation. Id. at B12. The Spanish government gave
over $300 million to the Foundation to purchase the
Bornemisza collection and provided the Foundation
The original plaintiff, Claude Cassirer, died while this litigation
was pending; his children, David and Ava Cassirer, and the United
Jewish Federation of San Diego County succeeded to his claims and
were substituted as the plaintiffs. See Pet. App. C11 n.5. For purposes of this brief, the government refers to Claude Cassirer as the
petitioner.
1
4
with the Villahermosa Palace in Madrid for use as a museum. Id. at B10, B12, C10-C11.
b. After the war, Neubauer sought restitution of the
painting. Pet. App. C51. In 1958, when the location of
the painting was still unknown, Neubauer reached a settlement agreement with the Government of the German
Federal Republic to receive monetary compensation for
the painting’s value. Id. at C9. In 2000, petitioner discovered that the painting was on display at the ThyssenBornemisza Museum in Madrid. Id. at C11. After Spain
denied Cassirer’s petition for return of the painting, petitioner commenced this action against Spain and the
Foundation in the United States District Court for the
Central District of California, seeking return of the
painting. Ibid. The complaint asserted property-law
claims for constructive trust, conversion, and possession of the painting, and sought a declaration under the
Declaratory Judgment Act, 28 U.S.C. 2201 (2012), that
petitioner owns the painting and has a right to its immediate return. 461 F. Supp. 2d 1157, 1177-1178;
Compl. 14-15.
To establish subject-matter jurisdiction over the suit,
petitioner invoked the FSIA’s expropriation exception
to a foreign state’s immunity under Section 1605(a)(3).
See 28 U.S.C. 1330(a). The expropriation exception provides that a “foreign state shall not be immune from the
jurisdiction of ” a state or federal court in any case “in
which rights in property taken in violation of international law are in issue” and there is a specified commercial nexus to the United States. 28 U.S.C. 1605(a); see
Federal Republic of Ger. v. Philipp, 141 S. Ct. 703, 709
(2021). Petitioner did not allege that either the Foundation or the Government of Spain had themselves
taken the Pissarro painting in violation of international
5
law; he alleged only that they had purchased the painting decades after its unlawful seizure by the Nazi government. See 616 F.3d 1019, 1031-1032 (en banc). But
petitioner contended that the expropriation exception
applied because the painting had been confiscated from
Neubauer by the Nazi government in violation of international law. See ibid.
The Foundation and Spain moved to dismiss on multiple grounds, including for lack of subject-matter jurisdiction. The district court denied the defendants’ motion, determining that it had subject-matter jurisdiction
under the FSIA’s expropriation exception to foreign
sovereign immunity. 461 F. Supp. 2d at 1178. A divided
panel of the court of appeals affirmed in part and reversed in part. 580 F.3d 1048, 1064. The court of appeals granted a petition for rehearing en banc, and the
en banc court affirmed in part, holding that Cassirer’s
suit came within the FSIA’s expropriation exception.
616 F.3d at 1024, 1037. This Court denied a petition for
a writ of certiorari. 564 U.S. 1037. 2
At the Court’s invitation, the United States filed an amicus brief
advising the Court of its view that petitioner’s claims against the
Foundation fell within the FSIA’s expropriation exception and that
review by this Court was not warranted. U.S. Br. 7-22, Cassirer,
supra (No. 10-786). This Court subsequently held in a case addressing the taking of property by the Nazi regime that a foreign state’s
expropriation of its own citizen’s property does not qualify as a
“tak[ing] in violation of international law” under Section 1605(a)(3).
See Philipp, 141 S. Ct. at 710, 715. The Court left open the argument that the plaintiffs in that case were not German nationals at
the time of the taking and therefore that the expropriation of their
property did violate international law. Id. at 715. In this case, the
district court found that Neubauer had been deprived of her German citizenship by the time the Nazis confiscated the painting in
1939. 461 F. Supp. 2d at 1165; see ibid. (recognizing that an ex2
6
c. On remand, the district court dismissed Spain as
a defendant pursuant to the parties’ stipulation. Pet.
App. D4 n.6. After a dispute about the statute of limitations, see 737 F.3d 613, 617-619, the case proceeded in
district court. The court held that, pursuant to circuit
precedent, federal common law provides the choice-oflaw rules for selecting which jurisdiction’s law governs
the determination of liability. Pet. App. D5. Applying
what it determined to be the appropriate federal
common-law choice-of-law rule, based on the Restatement (Second) of Conflict of Laws, the court held that
Spanish law supplies the rule of decision. Id. at D5-D7.
In the alternative, the court applied California’s choiceof-law rules and concluded that those rules also lead to
the application of Spanish law. Id. at D5, D7-D11. Finally, the court determined that the Foundation is the
lawful owner of the painting because the Foundation acquired it by acquisitive prescription, a Spanish-law doctrine akin to adverse possession. Id. at D11-D19.
The court of appeals reversed and remanded. Pet.
App. C6-C61. As relevant here, the court of appeals
agreed with the district court that, under circuit precedent, “when jurisdiction is based on the FSIA, ‘federal
common law applies to the choice of law rule determination.’ ” Id. at C19 (quoting Schoenberg v. Exportadora
de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th Cir. 1991));
see id. at C19-C20. The court of appeals also agreed
propriation of the property of a foreign state’s own citizen does not
fall within FSIA’s expropriation exception). The court of appeals
affirmed on that basis. See 616 F.3d at 1023 & n.2, 1037. The Foundation has not challenged that factual determination, nor has it
disputed that the Nazis took the painting in violation of international law. See id. at 1023 n.2; see also U.S. Br. 4, Cassirer, supra
(No. 10-786).
7
that under what it determined to be the applicable federal common-law rules, Spanish law governs the liability determination. Id. at C20-C26. But the court concluded that a genuine issue of material fact existed as to
whether the Foundation knew that the painting was stolen at the time that it acquired it; the court determined
that if the Foundation had such knowledge, the Foundation was an accessory after the fact under Spanish
law and could not have acquired ownership through acquisitive prescription. See id. at C26-C45. The court
therefore remanded for further proceedings on that
question. See id. at C45, C61. The court of appeals did
not address whether the district court was correct in determining that Spanish law would apply under California’s choice-of-law rules. See id. at C20 n.9.
d. After a bench trial, the district court found that,
at the time it purchased the painting, the Foundation
lacked actual knowledge that the painting was stolen.
See Pet. App. A2, B28. Accordingly, the court determined that the Foundation was the lawful owner of the
painting under Spanish law. Id. at B34.
The court of appeals affirmed. Pet. App. A1-A9. It
declined to reconsider its prior rulings, including its
holding that Spanish law governs petitioner’s substantive claims, and found no clear error in the district
court’s factual determinations. See ibid.
SUMMARY OF ARGUMENT
In FSIA suits raising claims not based on federal
law, choice-of-law questions are governed by state law,
not federal common law.
A. The FSIA sets out a uniform body of federal law
concerning the amenability of foreign sovereigns to suit
in the United States. But aside from specific exceptions
not implicated here, it does not alter the substantive law
8
of liability. The FSIA specifically provides that, once a
court determines that a foreign state is amenable to suit
under the FSIA, the foreign state “shall be liable in the
same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. 1606. Both
federal and state courts hearing claims not governed by
federal law, like those at issue here, against private individuals would apply state choice-of-law rules to select
the rule of decision. See Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941). And because using
different choice-of-law rules can sometimes lead to the
selection of a different rule of decision that would affect
the existence of and extent of liability, the only way to
ensure that a foreign state is held liable “in the same
manner and to the same extent as a private individual,”
as required by 28 U.S.C. 1606, is to apply state choiceof-law rules.
This Court has previously interpreted the identical
“same manner and to the same extent” requirement in
the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346,
2671 et seq., to support using a State’s choice-of-law
principles to select the rule of decision on liability. See
Richards v. United States, 369 U.S. 1, 11-13 (1962).
Both the Court’s analysis in that case, and the fact that
Congress chose to incorporate the same requirement
into the FSIA against the backdrop of that decision,
strongly support reaching the same result here.
That result is particularly reasonable because a State’s
choice-of-law rules, like other aspects of a State’s law,
reflect a State’s substantive policy choices. Accordingly, Congress’s decision generally to defer to a State’s
substantive policy choices in claims against those foreign sovereigns it determined should be amenable to
suit applies to the entirety of a State’s law.
9
B. Beyond Section 1606, which itself suffices to resolve this case, where a claim is based in state law, that
law normally encompasses the State’s choice-of-law
principles. In legislating against that backdrop, Congress would have expected that, where it left the resolution of a particular claim to state law, that law would
include the State’s choice-of-law rules, absent a contrary indication.
C. Using a State’s choice-of-law rules to select the
substantive law that governs state-law claims also comports with this Court’s precedents establishing that federal courts should not engage in common-lawmaking
unless doing so is necessary to protect uniquely federal
interests. While the FSIA reflects a strong interest in
uniformity as to a foreign state’s amenability to suit,
that interest does not extend to the substantive law of
liability in cases, like this one, where the FSIA instructs
that an exception to immunity applies and where the
question of ultimate liability is governed by state law.
Accordingly, the selection of choice-of-law rules for determining liability on such claims under the FSIA generally does not implicate uniquely federal interests.
And, although the ultimate selection or application of a
particular rule of decision in a specific case involving a
foreign sovereign could raise foreign-relations concerns, the best way to address such concerns, if they
were to arise, is to apply doctrines that specifically protect the federal government’s authority over foreign affairs. Developing and applying federal choice-of-law
rules across the board is unnecessary to avoid interference with foreign relations in a particular case.
D. That conclusion comports with the holdings of
four courts of appeals. The Ninth Circuit is alone in
holding to the contrary, but its scant analysis fails to
10
engage with Section 1606 and offers no persuasive reason to develop federal common-law choice-of-law rules.
Respondent’s arguments are likewise unavailing.
Respondent focuses on the differences in treatment between a foreign state and a private individual specified
by the FSIA, but those specific features of the FSIA
only illustrate that where Congress intended a foreign
state to be treated differently than a private individual,
it said so explicitly. They do not undermine Congress’s
unequivocal requirement that a foreign state be treated
like a private individual on the subject relevant here:
the manner and extent of liability.
Respondent also focuses on the FSIA’s emphasis on
uniformity. But the FSIA provides uniformity on the
threshold immunity determination, not on the substantive law governing suits against a foreign sovereign.
Congress specifically declined to create uniform substantive law governing liability, generally allowing preexisting law to govern the substance of claims against a
foreign state made amenable to suit. In any event, because different state laws indisputably govern the substance of a liability determination, respondent cannot
explain why applying state rather than federal choiceof-law rules would result in meaningfully less uniformity. And applying state choice-of-law rules ensures
uniformity between private defendants and foreign
states, in the manner specifically required by Congress.
Finally, respondent is mistaken in contending that
Section 1606’s equal treatment requirement does not
apply to cases based on the FSIA’s expropriation exception because such cases do not arise in “like circumstances” to suits against private parties. The act of expropriation by the Nazi regime justifies application of
the exception to respondent’s immunity in this case, but
11
nothing about the substance of the liability determination turns on the fact that immunity is based on such an
act, particularly because the expropriation doesn’t implicate respondent. In any event, Section 1606 requires
“like” circumstances, not identical circumstances, 28
U.S.C. 1606, and the substantive claim of wrongful possession of petitioner’s property has ready analogies in
cases against private parties involving stolen property.
Accordingly, Section 1606’s command of equal treatment applies here.
ARGUMENT
STATE CHOICE-OF-LAW RULES GOVERN THE SELECTION OF THE LAW THAT PROVIDES THE RULE OF DECISION IN AN FSIA SUIT BASED ON STATE-LAW CLAIMS
A. Section 1606 Of The FSIA Requires The Application Of
State Choice-Of-Law Rules In These Circumstances
1. The FSIA sets forth “comprehensive rules governing sovereign immunity.” Verlinden B. V. v. Central
Bank of Nigeria, 461 U.S. 480, 496 (1983) (quoting H.R.
Rep. No. 1487, 94th Cong., 2d Sess. 12 (1976) (House
Report)). 3 Because “[a]ctions against foreign sovereigns in our courts raise sensitive issues concerning the
foreign relations of the United States,” id. at 493, Congress deemed it critical to enact “ ‘a uniform body of law’
concerning the amenability of a foreign sovereign to
suit in United States courts.” First Nat’l City Bank v.
Banco Para El Comercio Exterior de Cuba, 462 U.S.
611, 622 n.11 (1983) (quoting House Report 32). The
FSIA’s sovereign-immunity standards and service-ofprocess requirements thus establish the exclusive
The Senate report on the bill that became the FSIA is substantially identical to the House Report. See S. Rep. No. 1310, 94th
Cong., 2d Sess. (1976).
3
12
standards, as a matter of federal law, for determining
whether a suit against a foreign state may be maintained in the United States. 28 U.S.C. 1605, 1607, 1608.
The FSIA, however, was “not intended to affect the
substantive law of liability.” First Nat’l City Bank, 462
U.S. at 620 (quoting House Report 12). Section 1606
provides:
As to any claim for relief with respect to which a foreign state is not entitled to immunity under section
1605 or 1607 of this chapter, the foreign state shall
be liable in the same manner and to the same extent
as a private individual under like circumstances[.]
28 U.S.C. 1606. Accordingly, once jurisdiction is established, the FSIA generally functions as a “passthrough” to the substantive law that would govern suits
between private individuals. Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009) (citation
omitted); see Jam v. International Fin. Corp., 139
S. Ct. 759, 768 (2019) (explaining that “ ‘same as’ provisions” “dot the statute books, and federal and state
courts commonly read them to mandate ongoing equal
treatment of two groups or objects”). “[W]here state
law provides a rule of liability governing private individuals, the FSIA requires the application of that rule
to foreign states in like circumstances.” First Nat’l City
Bank, 462 U.S. at 622 n.11. Cf. 28 U.S.C. 1605A, 1605B
(provisions enacted in 2008 and 2016 creating federal
causes of action for certain terrorism-related claims). 4
Where courts refer to state-law- claims, or to cases where state
law provides the rule of liability, they are referring to claims where
no federal law provides the rule of decision. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). Where, as here, the challenged conduct
4
13
Where Congress wanted to depart from the equal treatment principle, it said so explicitly. See 28 U.S.C. 1606
(providing that a foreign state “shall not be liable for
punitive damages,” even where an individual under like
circumstances would be so liable).
2. Applying Section 1606 here suffices to resolve this
case. Section 1606 specifically provides that where Section 1605 or 1607 creates an exception to immunity for
a particular “claim for relief,” “the foreign state shall be
liable in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C.
1606. A “foreign state” includes an “instrumentality of
a foreign state,” and therefore includes respondent.
See 28 U.S.C. 1603(a). And this case has proceeded under an exception to immunity found in “section 1605,”
28 U.S.C. 1606, namely the expropriation exception in
Section 1605(a)(3), see 616 F.3d 1019, 1037; Pet. App.
C55.
Petitioner has asserted property-law claims for conversion, constructive trust, and possession (also known
as replevin) against respondent, treating the painting
as stolen property for purposes of those claims, and has
sought a declaration of those state-law rights under the
Declaratory Judgment Act, 28 U.S.C. 2201 (2012). 461
F. Supp. 2d 1157, 1178; Compl. 14-15. If the respondent
were a private individual, the district court would apply
the forum State’s (here, California’s) choice-of-law rules
to select the applicable law. See Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Petitioner contends (Pet. 17; Pet. Br. 13) that California choice-of-law
rules would lead to the application of California law,
which provides that a good-faith purchaser cannot
has a foreign component, the determination of liability on such a
claim may, of course, be governed by foreign law.
14
acquire good title to stolen property. See Pet. App. B20;
862 F.3d 951, 960; Crocker Nat’l Bank v. Byrne &
McDonnell, 173 P. 752, 754 (Cal. 1918). It is undisputed
at this stage, by contrast, that the application of federal
common-law choice-of-law rules results in the application of Spanish law, which allowed respondent to acquire title to the stolen painting by acquisitive prescription, making respondent rather than petitioner its lawful owner. See Pet. App. A2, C20.
Accordingly, if federal common-law rules govern this
suit, respondent could “be liable,” 28 U.S.C. 1606, in a
different manner and to a different extent than a private individual under like circumstances. In fact, assuming that California’s choice-of-law rules would lead
to the selection of California law here (a question that
the court of appeals left open, Pet. App. C20 n.9, and on
which the United States takes no position), and that petitioner’s view of the correct result under California law
is sound, adopting federal common-law choice-of-law
rules would mean that respondent is not liable, while a
private party in like circumstances would be liable. Applying California choice-of-law rules to this suit would
then be the only way to hold respondent “liable in the
same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. 1606.
Regardless of whether the selection of choice-of-law
rules would ultimately make a difference in this case,
the governing substantive law selected under federal
common-law choice-of-law rules and state choice-of-law
rules could diverge in some instances. And using a different rule of decision could make the foreign state liable in a different “manner” or to a different “extent”
than a private individual. 28 U.S.C. 1606. For that reason, using the same choice-of-law rules in suits against
15
foreign states that would be applied against private defendants is the only way to “ensure identity of liability”
between a foreign state and a private individual. Barkanic v. General Admin. of Civ. Aviation of the People’s
Republic of China, 923 F.2d 957, 960 (2d Cir. 1991); see,
e.g., Oveissi, 573 F.3d at 841 (explaining that “the goal
of applying identical substantive laws to foreign states
and private individuals cannot be achieved unless a federal court utilizes the same choice of law analysis in
FSIA cases as it would apply if all the parties to the action were private”) (quoting Barkanic, 923 F.2d at 959960) (brackets and ellipsis omitted). 5
Confirming that analysis, the Court has previously
held that the application of a State’s choice-of-law rules
best effectuates a statutory requirement that another
sovereign—the United States—be treated “in the same
manner and to the same extent as a private individual
under like circumstances.” Richards v. United States,
369 U.S. 1, 6 (1962) (citation omitted); see id. at 11-12.
In Richards, the Court considered choice of law under
the FTCA. The FTCA waives the United States’ immunity from suit in some cases involving injuries caused
by the negligence of government employees acting
within the scope of their employment. See 28 U.S.C.
1346(b)(1). The FTCA—unlike the FSIA—specifies
that the governing law is “the law of the place where the
To ensure the identity of liability between private individuals
and foreign states, federal choice-of-law rules would govern FSIA
suits based on substantive federal law, to the extent a choice of law
is required—for instance between domestic federal law and foreign
law—because federal choice-of-law rules would apply in such cases
against private defendants. See, e.g., 28 U.S.C. 1605(b) (providing
an exception to immunity for certain suits to enforce maritime
liens); Lauritzen v. Larsen, 345 U.S. 571, 582-592 (1953) (selecting
among U.S., Danish, and Cuban law in maritime tort suit).
5
16
act or omission occurred.” Ibid. Based on that provision, the petitioners in Richards contended that there
was no need to apply choice-of-law rules at all because
the internal law of the State “ ‘where the act or omission
occurred’ ” would always provide the rule of decision.
See 369 U. S. at 5 (citation omitted). The Court disagreed, interpreting “ ‘the law of the place’ ” to encompass a State’s “whole law (including choice-of-law rules)
of the place where the negligence occurred,” id. at 2-3
(citation omitted); see id. at 11-13. That interpretation,
the Court emphasized, would best give effect to the
FTCA’s separate requirement that the United States be
liable “in the same manner and to the same extent as a
private individual under like circumstances,” 28 U.S.C.
2674, because applying the whole law of a State “enables
the federal courts to treat the United States as a ‘private individual under like circumstances,’ and thus is
consistent with the Act considered as a whole.” Richards, 369 U.S. at 11 (quoting 28 U.S.C. 2674).
Effectuating the FSIA’s identical “same manner and
to the same extent” requirement, 28 U.S.C. 1606, likewise requires application of a State’s choice-of-law
rules. Indeed, the analysis is even more straightforward because the FSIA, unlike the FTCA, is silent
about the governing law in cases raising state-law
claims. In Richards, there was some tension between
the “same manner” and “same extent” requirement and
Congress’s specification that the law where the negligent act occurred should govern, because applying state
choice-of-law principles would ensure equal treatment
between the United States and a private individual in
like circumstances only “where the forum State is the
same as the one in which the act or omission occurred.”
See 369 U.S. at 12. No such tension obtains here.
17
Moreover, Congress enacted the FSIA after the
Richards decision, specifically adopting an identical
“same manner” and “same extent” requirement after
this Court had relied on it to incorporate state choiceof-law rules into the FTCA. See 122 Cong. Rec. 17,468
(1976) (explaining Section 1606, then numbered Section
1605(c), “is based upon 28 U.S.C. 2674”). Use of the
FTCA’s language incorporates this Court’s interpretation of that language to require the application of a
State’s whole law, including its choice-of-law rules. See
Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019)
(“When a statutory term is obviously transplanted from
another legal source, it brings the old soil with it.”) (citation and internal quotation marks omitted).
3. Section 1606’s specification that a foreign state
should be held liable in the same manner and to the
same extent as a private individual reflects its judgment
that, where state law applies (and unless otherwise
specified), it should generally apply in full, rather than
being displaced in whole or in part based solely on the
involvement of a foreign government. A state’s conflictof-law rules are as “definitely a part of the law as any
other branch of the state’s law.” Restatement (Second)
of Conflict of Laws § 5 cmt. a, at 9 (1971); see id. § 2, at
2; A.I. Trade Fin., Inc. v. Petra Int’l Banking Corp., 62
F.3d 1454, 1464 (D.C. Cir. 1995) (“A choice-of-law rule
is no less a rule of state law than any other[.]”). And the
general Congressional determination in Section 1606
that state law should govern also applies to a State’s
choice-of-law principles, which reflect a State’s “local
policies” about how to settle competing interests where
a case has a significant relationship to more than one
jurisdiction. Klaxon, 313 U.S. at 496; see Richards, 369
U.S. at 12-13 (rejecting an interpretation of the FTCA
18
that would “prevent the federal courts from implementing” a State’s “policy in choice-of-law rules,” including
its decision about how “to take into account the interests of the State having significant contact with the parties to the litigation”). A State’s substantive law may,
for example, reflect a determination that, quite apart
from any limitations under federal law, there are territorial limits on the law’s application under state law. Cf.
Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671,
682 (Tex. 2006) (interpreting the state antitrust statute
to apply only to injuries that occur within the state, not
those “that occurred in other states”); State Sur. Co. v.
Lensing, 249 N.W.2d 608, 612 (Iowa 1977) (holding that
a state bond statute does not apply to “out-of-state
transactions”). Its approach to conflicts of law more
broadly warrants comparable treatment.
B. Application Of State Choice-Of-Law Rules Comports
With The Normal Treatment Of State Law Applied By
Federal Courts
Beyond Section 1606’s “same manner” and “same extent” requirement, the application of state law normally
includes state choice-of-law principles, and at the very
least nothing in the FSIA directs a contrary approach.
Under this Court’s decision in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a federal court applies all of a
State’s substantive rules in applying that State’s law.
Id. at 78; see Henry J. Friendly, In Praise of Erie—
And of the New Federal Common Law, 39 N.Y.U. L.
Rev. 383, 408 n.122 (1964) (explaining that “the Erie
doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in
state law”) (citation omitted); 19 Charles Alan Wright
et al., Federal Practice and Procedure § 4520, at 892,
896 (2016). And under this Court’s decision in Klaxon,
19
a State’s choice-of-law rules are substantive for purposes of Erie, see Klaxon, 313 U.S. at 496, meaning
that, absent a contrary federal law or constitutional
limit, see pp. 21-22, infra, state law applied by federal
courts includes the State’s choice-of-law rules.
Given that backdrop, Congress would have expected
that, unless it provided to the contrary when it enacted
the FSIA in 1976, the application of state law would include the State’s choice-of-law rules. That is especially
so because the year before Congress enacted the FSIA,
this Court reaffirmed the Klaxon rule that the forum
State’s choice-of-law rules apply in a suit between private parties based on a death that occurred in Cambodia. Day & Zimmermann, Inc. v. Challoner, 423 U.S.
3, 3 (1975) (per curiam). 6
These background principles were brought to Congress’s attention during the FSIA’s drafting process. The State Department,
which helped draft the FSIA’s language, prepared a section-bysection analysis for the 1973 version of the bill, which did not contain
the “same manner” and “same extent” requirement that was later
added before the FSIA’s enactment. See Immunities of Foreign
States: Hearing on H.R. 3493 Before the Subcomm. on Claims and
Governmental Relations of the House Comm. on the Judiciary, 93d
Cong., 1st Sess. 2-13 (1973). The analysis stated:
6
[W]hether state or federal law is to be applied will depend on the
nature of the issue before the court. Under the Erie doctrine
state substantive law, including choice of law rules, will be applied if the issue before the court is non-federal. On the other
hand, federal law will be applied if the issue is a federal matter.
Under the [bill,] issues concerning sovereign immunity, of
course, will be determined by federal law.
Id. at 47. That explanation does not appear in the section-by-section
analysis of the 1976 bill that was ultimately enacted as the FSIA,
and the 1976 House Report expressly disclaimed reliance on the
1973 analysis, explaining that it “should not be consulted in
20
C. The Presence Of A Foreign State As A Defendant In An
FSIA Suit Does Not Justify The Creation Of Federal
Common-Law To Govern Choice Of Law
Applying a State’s choice-of-law rules also comports
with the principle that federal courts should not create
federal common law to displace state-created rules in
the absence of strong justifications. See Rodriguez v.
FDIC, 140 S. Ct. 713, 718 (2020) (emphasizing “the care
federal courts should exercise before taking up an invitation to try their hand at common lawmaking”).
“[C]ases in which judicial creation of a special federal
rule would be justified” are “ ‘few and restricted,’ ”
O’Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994) (citation omitted), and creating a federal rule “must be
necessary to protect uniquely federal interests.” Rodriguez, 140 S. Ct. at 717 (citation and internal quotation
marks omitted).
Creating federal common law can be appropriate for
matters concerning “relationships with other countries.” Atherton v. FDIC, 519 U.S. 213, 226 (1997); see,
e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 425-426 (1964) (fashioning federal common-law Act
of State doctrine limiting the authority of U.S. courts to
determine the validity of the public acts of a foreign sovereign). But the selection of a choice-of-law rule under
the FSIA for state-law-based claims does not usually
implicate foreign policy concerns. Congress has determined that applying state law is generally appropriate
interpreting the current bill and its provisions,” and “no inferences
should be drawn from differences” between the 1973 and the 1976
section-by-section analyses. House Report 12. But the State Department’s 1973 section-by-section analysis does reflect an understanding that state substantive law normally includes state choiceof-law rules.
21
in resolving the substance of a dispute with a foreign
state, see p. 12, supra, and there is no reason to expect
that state choice-of-law principles ordinarily pose a
greater threat to foreign relations than other state-law
principles providing a rule of decision as to the rights
and liabilities of the parties.
The ultimate selection of state law to govern a claim
under the FSIA could, however, have implications for
foreign relations or other distinct federal interests in
particular cases. And there could be instances in which
a State’s choice-of-law rules were hostile to or improperly dismissive of a foreign state’s interests—especially
its interests in regulating certain matters within its own
territory—that state law should not control. But those
concerns are best addressed by applying limits on the
application of state law derived from the Constitution,
applicable treaties or statutes, international comity, the
Act of State doctrine, or other sources reflecting distinctly federal interests—rather than displacing state
choice-of-law rules across the board.
The federal government’s exclusive constitutional
authority over foreign affairs limits the application of a
State’s law to foreign conduct where the state law conflicts with the Nation’s foreign policy or interferes in an
area of exclusively federal control. See, e.g., American
Ins. Ass’n v. Garamendi, 539 U.S. 396, 413-427 (2003);
Crosby v. National Foreign Trade Council, 530 U.S.
363, 372-388 (2000); Zschernig v. Miller, 389 U.S. 429,
441 (1968). More generally, the Constitution limits a
State’s ability “to draw into control of its law otherwise
foreign controversies, on slight connections, because it
is a forum state.” Lauritzen v. Larsen, 345 U.S. 571,
590-591 (1953). Other constitutional provisions provide
additional limits. See Allstate Ins. Co. v. Hague, 449
22
U.S. 302, 304 (1981) (recognizing that the Due Process
Clause and the Full Faith and Credit Clause of the Constitution limit a State’s ability to select a particular law
under its choice-of-law analysis); Healy v. The Beer
Inst., 491 U.S. 324, 336 (1989) (recognizing Commerce
Clause constraints on a State’s ability to regulate activity that occurs outside its borders); Phillips Petroleum
Co. v. Shutts, 472 U.S. 797, 821 (1985) (explaining that
the Constitution does not permit a State to “take a
transaction with little or no relationship to the forum
and apply the law of the forum”). In light of those safeguards, concerns about foreign relations in the context
of international conflict-of-law problems “limit the
scope and reach of state law” in certain instances, but
“they ordinarily do not supply a conflicts rule or a uniform rule of substantive law to be followed by state
courts or by federal courts sitting in diversity.” See Eugene F. Scoles & Peter Hay, Conflict of Laws § 3.56, at
149 (1982).
Relying on rules that limit the scope and reach of
state law in particular instances, rather than adopting a
federal choice-of-law rule across the board, is also appropriate because a result that is problematic from the
perspective of comity could obtain in some circumstances regardless of whether state law or federal commonlaw governs the choice of law. Cf. Day & Zimmermann,
423 U.S at 4 (rejecting lower courts’ use of federal
choice-of-law rules to select Texas law over Cambodian
law for a suit involving a death in Cambodia based on
the lower courts’ view that it should be “effectuating the
laws and policies of the United States”). Moreover, it
appears likely, as respondent itself has recognized, that
the application of federal and state choice-of-law principles would lead to the same result in the great majority
23
of cases. See Br. in Opp. 16 (explaining that “whether a
court employs the federal common law’s or the forum’s
choice-of-law test, the result is likely to be the same”)
(emphasis omitted); see also id. at 12-23. For those reasons, the prophylactic of adopting federal common law
to govern the choice-of-law analysis in suits under the
FSIA as a categorical matter is neither necessary nor
particularly well-tailored to the specific concern about
an application of domestic law in a manner that is unfair
to a foreign sovereign or that may otherwise interfere
with the United States’s conduct of foreign affairs.
D. The Reasons Advanced By Respondents And The Court
Of Appeals For Developing A Federal Common-Law
Rule Lack Merit
Interpreting the FSIA to apply the forum State’s
choice-of-law rules where state law provides the rule of
decision comports with the holdings of the Second,
Fifth, Sixth, and D.C. Circuits. Barkanic, 923 F.2d at
959-960; Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of the Republic of Venez., 575 F.3d 491, 498
(5th Cir. 2009); O’Bryan v. Holy See, 556 F.3d 361, 381
n.8 (6th Cir.), cert. denied, 558 U.S. 819 (2009); Oveissi,
573 F.3d at 841. The Ninth Circuit stands alone in requiring federal courts to develop and apply federal
common-law choice-of-law rules. The Ninth Circuit has
identified no persuasive reason to adopt its approach.
In Harris v. Polskie Linie Lotnicze, 820 F.2d 1000
(1987), the Ninth Circuit stated that “[i]n the absence of
specific statutory guidance, [it] prefer[s] to resort to the
federal common law for a choice-of-law rule.” Id. at
1003. But the FSIA does provide specific statutory
guidance, see 28 U.S.C. 1606; pp. 12-15, supra. And the
Ninth Circuit’s “prefer[ence],” Harris, 820 F.2d at
1003, does not comport with this Court’s more demand-
24
ing standards for creating federal common law. See
p. 20, supra. 7
In the decision below, the Ninth Circuit relied on its
prior decision in Schoenberg v. Exportadora de Sal, S.A.
de C.V., 930 F.2d 777 (1991). See Pet. App. C19. But
that decision is no more persuasive, concluding that federal common law applies simply because “jurisdiction in
this case is based on FSIA, not diversity.” Schoenberg,
930 F.2d at 782. The Ninth Circuit’s focus on the basis
for a court’s subject-matter jurisdiction was mistaken.
As a leading treatise explains, “the law to be applied is
not selected by reference to the basis of the court’s subject matter jurisdiction”; rather it “turns upon the
source or genesis of the right or issue being adjudicated.” Federal Practice and Procedure § 4520, at 896;
see p. 18, supra. The Ninth Circuit has not attempted
to explain why a State’s choice-of-law rules should not
apply to claims based on state law, merely because the
FSIA provides the jurisdictional basis for the suit. 8
In Harris, the Ninth Circuit also rejected a rule that the place
where the act or omission occurred determines the choice of law as
it does under the FTCA, because the FSIA lacks the FTCA’s requirement that “the law of the place where the act or omission occurred” should govern. 820 F.2d at 1003; see id. at 1002-1003. The
Ninth Circuit’s decision in Harris, however, did not explain why applying the choice-of-law rules of the forum State would not be warranted to effectuate the principle that a foreign state must be held
liable in the “same manner and to the same extent” as a private individual, particularly because applying that rule would result in an
identity of treatment more often than under the FTCA. See p. 16,
supra; Richards, 369 U.S. at 12.
8
Before the FSIA’s enactment, the federal diversity statute provided the jurisdictional basis for suits against foreign states. 28
U.S.C. 1332(a)(2) (1970). The public law that enacted the FSIA
broke out the jurisdictional basis for suits against foreign states into
7
25
Rather than defending the Ninth Circuit’s unpersuasive reasoning, respondent makes three different arguments. None provides a sound reason to adopt a federal
rule for the choice-of-law inquiry. First, respondent
contends that Congress “inten[ded]” foreign sovereigns
“not to be treated merely as a private individual.” Br.
in Opp. 24-25. In particular, respondent notes that the
FSIA vests original jurisdiction in district courts in all
cases where a foreign state is a party, 28 U.S.C. 1330(a),
and that it prohibits jury trials, 28 U.S.C. 1441(d). See
Br. in Opp. 25. While respondent is correct that the
FSIA treats a foreign state differently than a private
individual in certain specific respects, including access
to federal court and the mode of trial, the FSIA is just
as clear that, as to the extent of liability, “the foreign
state shall be liable in the same manner and to the same
extent as a private individual under like circumstances.”
28 U.S.C. 1606; see House Report 22 (explaining that
“Section 1606 makes clear that if the foreign state, political subdivision, agency or instrumentality is not entitled to immunity from jurisdiction, liability exists as it
would for a private party under like circumstances”).
Respondent has not identified any specific exception to
the FSIA’s mandate of equal treatment in making liability determinations that would encompass the choiceof-law determination. Cf. 28 U.S.C. 1606 (prohibiting
the award of punitive damages in cases against a foreign
a separate provision of the U.S. Code. FSIA § 2(a), 90 Stat. 2891;
see 28 U.S.C. 1330(a), and in so doing deleted as “superfluous” the
“similar jurisdictional basis” in the diversity statute. House Report
14. The House Report gives no indication that the provision for the
“similar” jurisdictional basis in the FSIA would work a substantive
change of the sort the Ninth Circuit’s interpretation would have
brought about. See ibid.
26
state). Accordingly, Section 1606’s unambiguous language governs on the question at issue here.
Nor is there anything incongruous about Congress’s
decision to treat foreign states differently than private
parties for some purposes but in the same manner as
private parties for others. Notably, the FTCA also
treats the United States differently from private defendants in some respects, providing for exclusive jurisdiction in the federal courts, prohibiting jury trials, and
prescribing exceptions to liability. See, e.g., 28 U.S.C.
1346(b), 2402, 2680; Richards, 369 U.S. at 13-14 & n.28
(citing FTCA provisions under which “the liability of
the United States is not coextensive with that of a private person under state law”). But those differences do
not require the application of “independent federal
[conflict-of-law] rule[s],” or undercut the statute’s “same
manner” and “same extent” requirement as to the extent of the United States’ liability. Richards, 369 U.S.
at 13. Indeed, in the FTCA, just as in the FSIA, Congress was “specific” where it intended departures from
state law, and those departures “contain[] no direct or
indirect modification of the principles controlling application of choice-of-law rules.” Id. at 14.
Second, respondent contends that federal conflict-oflaw rules should apply because a “primary purpose[]” of
the FSIA is “the need for national uniform standards in
actions involving sovereign entities.” Br. in Opp. 25.
That argument misconstrues the FSIA, which reflects
Congress’s judgment that the “body of law concerning
the amenability of a foreign sovereign to suit in United
States courts” must be “uniform,” First Nat’l City Bank,
462 U.S. at 622 n.11 (emphasis added; citation and internal quotation marks omitted), while choosing to treat
non-immune foreign states like private parties as to
27
liability in most circumstances, see 28 U.S.C. 1606. Nor
is there anything unusual in such a determination. A
central purpose of the Warsaw Convention, for instance, was to foster uniformity in the liability regimes
related to international air travel, but because the Convention left some questions to domestic law, the governing law for those questions would be “the local law identified by the forum under its choice-of-law rules or approaches.” El Al Israel Airlines, Ltd. v. Tsui Yuan
Tseng, 525 U.S. 155, 170 (1999).
In any event, respondent has not explained how
using federal common-law choice-of-law rules would
meaningfully foster uniformity in an area where the
substance of liability is indisputably governed by potentially disparate state law—or by foreign law if choiceof-law principles called for applying foreign law. And
respondent’s approach would undermine uniformity
where Congress has expressly required it—between
foreign states and private parties. See pp. 12-15, supra.
Respondent also contends that vertical uniformity is
irrelevant because “Congress intended for [FSIA] cases
to be litigated exclusively in federal, not state, court.”
Br. in Opp. 26 n.16. To the contrary, Congress made the
federal courts’ jurisdiction concurrent rather than exclusive. See 28 U.S.C. 1330(a); Verlinden, 461 U.S. at
489, 491 n.16; see also House Report 13 (explaining that
plaintiffs “will have an election whether to proceed in
Federal court or in a court of a State”). Notably, at the
time Congress enacted the FSIA, some suits against
foreign sovereigns had proceeded in state court and the
rule of decision in those cases was governed by state
choice-of-law rules. See, e.g., J. Zeevi & Sons, Ltd. v.
Grindlays Bank (Uganda) Ltd., 333 N.E.2d 168, 172
(N.Y.) (applying New York’s choice-of-law rules), cert.
28
denied, 423 U.S. 866 (1975); see also Verlinden, 461 U.S.
at 491 n.16. Accordingly, Congress’s decision to allow
suits against foreign sovereigns to proceed in state
court illustrates Congress’s acceptance of the forum
State’s state-law principles in resolving FSIA suits.
Third, respondent contends that Section 1606 does
not apply to FSIA cases that proceed under Section
1605(a)(3)’s expropriation exception to immunity, because Section 1605(a)(3) provides an exception to the
foreign state’s immunity for its public acts and “a private individual cannot commit a public, sovereign act.”
Br. in Opp. 26-29. Respondent is correct that the
FSIA’s expropriation exception “permits the exercise of
jurisdiction over some public acts of expropriation.”
Federal Republic of Ger. v. Philipp, 141 S. Ct. 703, 713
(2021). But Section 1605(a)(3) addresses the applicable
exception to the foreign state’s immunity from suit,
whereas Section 1606 speaks to the substantive liability
determination. And “the jurisdictional inquiry” in FSIA
cases often “does not overlap with the elements of a
plaintiff ’s claims,” such as where a plaintiff asserts “a
simple common-law claim of conversion, restitution, or
breach of contract, the merits of which do not involve
the merits of international law.” Bolivarian Republic
of Venez. v. Helmerich & Payne Int’l Drilling Co., 137
S. Ct. 1312, 1323-1324 (2017). Here, petitioner asserts
claims for conversion, constructive trust, and possession of the painting, see 461 F. Supp. 2d at 1178; Compl.
14-15, which can be brought against private individuals.
More fundamentally, respondent reads the “like circumstances” requirement in Section 1606 too narrowly.
As this Court has explained in interpreting the identical
language in the FTCA, the words “ ‘like circumstances’
do not restrict a court's inquiry to the same circum-
29
stances, but require it to look further afield.” United
States v. Olson, 546 U.S. 43, 46 (2005) (emphasis added;
citation omitted); see Indian Towing Co. v. United
States, 350 U.S. 61, 64-65 (1955). Accordingly, although
the conduct of a sovereign will often be distinct in significant ways from that of a private party, the requirement of like treatment applies when an “analogy” to the
sovereign’s conduct can be identified. Olson, 546 U.S.
at 47.
Here, an analogy is available: although private citizens cannot take property in violation of international
law, they can take property in violation of other laws.
Cf. Olson, 546 U.S. at 47 (“Private individuals, who do
not operate lighthouses, nonetheless may create a relationship with third parties that is similar to the relationship between a lighthouse operator and a ship dependent on the lighthouse’s beacon.”). Moreover, private individuals can hold property stolen by a third party.
That analogy is particularly apt in this case because, for
jurisdictional purposes, petitioner has asserted that
Germany, not respondent, expropriated—stole—the
painting in violation of international law. See 616 F.3d
at 1031-1032. Petitioner seeks to hold respondent liable
based on its subsequent acquisition of the painting, in
the same manner and to the same extent that petitioner
alleges a private individual who obtained the painting
would be liable. Accordingly, there is no justification
for disregarding Section 1606’s equal treatment requirement in this case.
30
CONCLUSION
The judgment of the court of appeals should be vacated, and the case remanded for further proceedings.
Respectfully submitted.
MARY CATHERINE MALIN
Deputy Legal Adviser
Department of State
BRIAN H. FLETCHER *
Acting Solicitor General
BRIAN M. BOYNTON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
MASHA G. HANSFORD
Assistant to the Solicitor
General
SHARON SWINGLE
LEWIS S. YELIN
Attorneys
NOVEMBER 2021
*
The Solicitor General is recused in this case.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.