and Submitted February 14, 2018 Pasadena, California
from the United States District Court for the Central
District of California, No. 2:07-cv-02866-JFW-SS John F.
Walter, District Judge, Presiding
Lawrence M. Kaye (argued), Howard N. Spiegler, Frank K. Lord
IV, and Darlene B. Fairman, Herrick Feinstein LLP, New York,
New York, for Plaintiff-Appellant.
Anthony Rowley Jr. (argued), Justin P. Raphael, Eric P.
Tuttle, Mark R. Yohalem, Luis Li, and Ronald L. Olson, Munger
Tolles & Olson LLP, Los Angeles, California, for
Stanley W. Levy, Benjamin G. Shatz, and Connie Lam, Manatt
Phelps & Phillips LLP, Los Angeles, California; Michael
Bazyler, Dale E. Fowler School of Law, Chapman University,
Orange, California; for Amici Curiae The 1939 Society, Bet
Tzedek, and Jewish Historical Museum.
C. Pell and Lynn Kaiser, White & Case LLP, New York, New
York; Agnes Peresztegi, Of Counsel, Soffer Avocats, Paris,
France; for Amicus Curiae Commission for Art Recovery.
J. Kohlmann, Irene M. Ten Cate, and Ava U. McAlpin, Jenner
& Block LLP, New York, New York, for Amicus Curiae
Professor Leonard F.M. Besselink.
R. Kline and L. Eden Burgess, Cultural Heritage Partners
PLLC, Washington, D.C., for Amici Curiae Members of Congress
E. Engel and J. Nadler and Former Members of Congress M.
Levine and R. Wexler.
Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit
Judges, and James Donato, [*] District Judge.
of State Doctrine
panel affirmed the district court's summary judgment in
favor of the Norton Simon Museum of Art at Pasadena in an
action by Marei von Saher to recover two oil paintings that
were among a group of artworks taken by Nazis in a forced
sale from her father-in-law during World War II.
the war, the Allied Forces returned the paintings to the
Dutch government. In 1966, the Dutch government sold the
paintings to George Stroganoff-Sherbatoff, who in turn sold
the paintings to the Norton Simon Museum in 1971. In the late
1990s, von Saher sought to recover the paintings from the
Dutch Government. The Dutch Court of Appeals denied von
Saher's petition for restoration of rights in the
panel applied the act of state doctrine, which requires that
the acts of foreign sovereigns taken within their own
jurisdictions shall be deemed valid. The panel held that von
Saher's theory would require the court to invalidate
official acts of the Dutch government. Specifically, for van
Saher to succeed: the Dutch government's conveyance of
the paintings to Stroganoff would need to be deemed legally
inoperative; and the panel would need to disregard both the
Dutch government's 1999 decision not to restore von
Saher's rights to the paintings, and its later statement
that her claim to the paintings had "been settled."
The panel concluded that the Dutch government's transfer
of the paintings and its later decisions about the conveyance
were "sovereign acts" requiring application of the
act of state doctrine.
panel held that exceptions to the act of state doctrine did
not apply. The panel also held that the policies underlying
the act of state doctrine supported its application in this
Judge Wardlaw agreed that the Dutch government's
conveyance to Stroganoff was an official act of the
Netherlands. Judge Wardlaw wrote that the case should not
have been litigated through the summary judgment stage,
however, because the district court correctly dismissed the
case on preemption grounds in March 2012.
McKEOWN, Circuit Judge:
in the balance are Renaissance masterpieces that have been on
display in California for nearly half a century. The dispute
over their ownership, however, dates back to World War II,
when the Nazis invaded the Netherlands.
von Saher ("von Saher") seeks to recover two oil
paintings that were among a group of artworks taken by Nazis
in a forced sale from her father-in-law. Following the war,
the Allied Forces returned the paintings to the Dutch
government, which established a claims process for recouping
Nazi-looted property. Von Saher's family, on the advice
of counsel, chose not to file a claim on the paintings within
the allotted time. In 1966, the Dutch government sold the two
paintings to George Stroganoff-Sherbatoff
("Stroganoff") after Stroganoff filed a restitution
claim alleging that he was the rightful owner. Stroganoff
then sold the paintings in 1971 to the Norton Simon Art
Foundation and the Norton Simon Museum of Art at Pasadena
(collectively, "the Museum"). The paintings have
been on display ever since.
late 1990s, von Saher tried to recover from the Dutch
government all paintings included in the forced sale. The
Dutch Court of Appeals issued a final decision, denying von
Saher's petition for restoration of rights in the
paintings. A few years later, the Dutch government
nonetheless decided to return to von Saher the paintings that
were still in its possession, but did not return the two
paintings it had sold to Stroganoff because they were in
California. Von Saher sued the Museum in federal court soon
marks the third time that we have considered von Saher's
case, having most recently remanded for further factual
development. The district court granted summary judgment to
the Museum, concluding that the Netherlands possessed good
title under Dutch law when it sold the paintings to
affirm, but not under Dutch law. Because the act of state
doctrine deems valid the Dutch government's conveyance to
Stroganoff, the Museum has good title. Holding otherwise
would require us to nullify three official acts of the Dutch
government-a result the doctrine was designed to avoid.
center of this controversy are two Renaissance masterworks-
"Adam" and "Eve"-painted by Lucas Cranach
the Elder ("the paintings" or "the
Cranachs"). In 1931, Dutch art dealer Jacques
Goudstikker purchased the Cranachs from the Soviet Union at
an auction in Berlin called "the Stroganoff
Collection." The paintings became the property of the
art dealership in which Goudstikker was principal shareholder
("the Goudstikker Firm" or "the Firm").
1940, as the Nazis invaded the Netherlands, Goudstikker and
his family fled to South America, fearing persecution and
leaving behind his gallery of over 1, 200 artworks.
Tragically, Goudstikker died on the boat trip. His wife Desi,
who acquired Goudstikker's shares in the Firm, maintained
a blackbook listing all the paintings in the gallery,
including the Cranachs.
Goudstikker's death, Nazi Reichsmarschall Hermann
Göring and his cohort Alois Miedl "bought" the
Goudstikker Firm and its assets through a series of
involuntary written agreements with a remaining employee of
the Firm. These "forced sales" proceeded
in two parts: Miedl acquired the Firm, its showroom, some of
its paintings, and the family's villa and castle for 550,
000 guilders ("the Miedl transaction"). Göring
purchased other artworks, including the Cranachs, for two
million guilders- the equivalent of over 20 million current
U.S. dollars ("the Göring transaction").
World War II, the Allied Forces in Germany recovered much of
the art collection taken from Goudstikker by Göring,
including the Cranachs. The Allies turned the paintings over
to the Dutch government in 1946.
Dutch Restitution System
and after the war, the Dutch government created systems of
restitution and reparations for losses incurred by its
citizens at the hands of the Nazis. The pillars of those
systems were established in a series of royal decrees. We
provide a sketch of those decrees because they bear on our
decision to apply the act of state doctrine.
Decree A6 and the 1947 CORVO Decision
Dutch government enacted Royal Decree A6 in June 1940,
shortly after the Nazis invaded the Netherlands. The decree
prohibited and automatically nullified agreements with the
enemy. A6 vested authority in a special committee
(Commissie Rechtsverkeer in Oorlogstijd or
"CORVO") to "revoke the invalidity" of
such transactions "by declaring the agreement or act
1947, CORVO revoked the automatic invalidity of agreements
with the enemy for property that was recuperated to the
Netherlands by the Allies. As CORVO explained, A6 was enacted
to protect Dutch property interests from the Nazis. But once
property was returned to the Dutch government, "the
initial interest of such nullity is eliminated." After
property was returned to the Netherlands, the original Dutch
owners could petition for a restoration of rights in the
property under Royal Decree E100.
Dutch government enacted Royal Decree E100 in 1944. The
decree established a Council for Restoration of Rights
("the Council"), with broad and exclusive authority
to declare null and void, modify, or revive "any legal
relations that originated or were modified during enemy
occupation of the [Netherlands]."
Council had the exclusive power to order the return of
property and to restore property rights to the original Dutch
owners. The Council consisted of several departments,
including a Judicial Division. The restitution decisions of
the other departments were appealable to the Judicial
Division, whose judgments were final and non-appealable, and
carried the force of a court judgment. Petitioners could
bring claims for restoration of rights directly to the
Judicial Division, or bring claims to other departments and
appeal adverse decisions to the Judicial Division. Upon
enactment of E100, the Council supplanted the Dutch
common-law courts as the venue for adjudging wartime property
rights, as those courts became "incompetent to hear and
decide on claims or requests that the Council is competent to
handle by virtue of this Decree."
Dutch government set a July 1, 1951 deadline for claimants to
file E100 restoration-of-rights petitions with the Council.
After that deadline, the Council could still order
restoration of rights of its own accord, but claimants were
no longer entitled to demand restitution. Usually, if an
original owner received money or other consideration in
exchange for property taken by the Nazis, the original owner
was required to return the sale price to the Dutch government
in order to obtain restitution.
E100 also authorized the Council to dispose of property of
"unknown owners": "If the owner has not come
forward within a period to be further determined by Us, items
that have not yet been sold shall be sold . . . ." The
Dutch government set the deadline for owners "com[ing]
forward" at September 30, 1950.
Dutch government enacted Royal Decree E133 in 1944 to
expropriate enemy assets in order to compensate the
Netherlands for losses it suffered during World War II.
Article 3 of E133 provided that within the Netherlands, all
"[p]roperty, belonging to an enemy state or to an enemy
national, automatically passes in ownership to the State with
the entering into force of this decree . . . ." The
expropriation of enemy property was automatic and continued
until July 1951, when the Netherlands ceased hostilities with
Saher's Family Declined to Seek Restoration of ...