Marei Von Saher v. Norton Simon Museum of Art At
2014 U.S. App. LEXIS 10552
| 9th Cir. | 2014Background
- The Cranach panels "Adam and Eve" were purchased by Jacques Goudstikker in 1931, looted (or forcibly acquired) by Hermann Göring in 1940, and later recovered by Allied forces; they ultimately came into the custody of the Netherlands, then were transferred in 1966 to Stroganoff, and purchased by the Norton Simon Museum in 1971.
- Desi Goudstikker (Jacques’ widow) returned to the Netherlands after WWII; she pursued limited restitution (a 1952 settlement concerning the Miedl transaction) but did not pursue restitution for the Göring-looted works, including the Cranachs, before the 1951 deadline.
- The U.S. (external) restitution program returned recovered works to countries of origin and expected those countries to conduct internal restitution to rightful owners; the Washington Principles (1998) and Terezin Declaration (2009) endorse identifying looted art and encouraging fair, expeditious claims-resolution.
- Marei Von Saher (heir) filed suit in California in 2007 seeking replevin, conversion, quiet title, and return of the Cranachs from the Norton Simon Museum; the district court dismissed, finding conflict preemption and untimeliness; this court previously invalidated Cal. Civ. Proc. § 354.3 on field-preemption grounds (Von Saher I) and remanded limited accrual issues.
- The district court later dismissed Von Saher’s amended complaint on conflict-preemption grounds relying in part on the Solicitor General’s Supreme Court brief characterizing U.S. policy as respecting the finality of Dutch restitution actions; the Ninth Circuit majority reversed, holding Von Saher’s claims do not conflict with federal policy and remanded for development of an act-of-state defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Von Saher’s state-law replevin/conversion claims are preempted by federal foreign-affairs policy on restitution of Nazi-looted art | Von Saher: no conflict—Cranachs were never subject to postwar internal restitution in the Netherlands, and U.S. policy (Washington Principles) encourages heirs to bring claims; state-law claims do not impede federal policy | Museum: federal policy respects finality of external restitution and internal Dutch proceedings; allowing suit would conflict with U.S. foreign policy and the Executive’s position | Reversed: court held claims are not conflict-preempted because, on the complaint, Cranachs were not subject to bona fide internal restitution proceedings in the Netherlands and allowing suit would not frustrate federal objectives |
| Whether the Solicitor General’s amicus brief requires deference that bars the lawsuit | Von Saher: Solicitor General mischaracterized facts and went beyond policy into factual determinations; deference is limited | Museum: Solicitor General articulated continuing U.S. interest in finality of Dutch proceedings, supporting preemption | Court: declined to treat the Solicitor General’s brief as dispositive given factual disputes and the Executive’s caveat that external restitution alone may not bar litigation where internal proceedings were not bona fide |
| Whether act-of-state doctrine bars adjudication of ownership (because the Netherlands transferred the Cranachs to Stroganoff) | Von Saher: alleges the transfer was wrongful and akin to a private sale; doctrine should not block her claims | Museum: transfer may have been an official sovereign act implicating act-of-state abstention | Court: could not resolve on dismissal record; remanded for factual development whether the 1966 transfer was sovereign and whether exceptions (commercial, Hickenlooper) apply |
| Whether procedural defects (statute of limitations; accrual) bar Von Saher’s claims | Von Saher: California law amended retroactively to extend accrual for fine art claims until identity and whereabouts discovered; she timely sued after discovery | Museum: asserted claims untimely and relied on earlier rulings invalidating § 354.3 and challenging accrual | Court: earlier field-preemption holding left accrual question open; on current record the court did not affirm dismissal for timeliness and allowed claims to proceed for further litigation |
Key Cases Cited
- Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) (pleading standard on motion to dismiss)
- Von Saher v. Norton Simon Museum of Art at Pasadena (Von Saher I), 592 F.3d 954 (9th Cir. 2010) (invalidating Cal. Civ. Proc. § 354.3 on field-preemption grounds)
- Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003) (state law preempted where it conflicted with federal foreign policy)
- W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp. Int’l, 493 U.S. 400 (1990) (act-of-state doctrine scope)
- Ricaud v. Am. Metal Co., 246 U.S. 304 (1918) (act-of-state doctrine bars reexamination of foreign sovereign acts)
- Underhill v. Hernandez, 168 U.S. 250 (1897) (foundational statement of act-of-state principle)
- Munaf v. Geren, 553 U.S. 674 (2008) (political branches’ primacy on foreign affairs and deference to executive determinations)
- Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) (state law preemption where it obstructs federal foreign policy)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (judicial deference to Executive on foreign-affairs impact)