Von Saher v. Norton Simon Museum of Art at Pasadena

education, priate public and reverse the SAHER, Marei

district court. VON Plaintiff- Appellant, VII NORTON SIMON MUSEUM ART OF discussed, For the reasons we conclude PASADENA, AT Norton Simon Muse that the district court in holding erred that Pasadena; um of Art at Norton Simon

the definition of a free appropriate public Foundation, Art Defendants-Appel education set forth Supreme Court lees. in Rowley superseded, has been and ac- cordingly, addition, vacate its orders.11 In No. 07-56691.

we reverse the district court’s conclusions United States Appeals, Court of that procedural the District committed vio- Ninth Circuit. lations of the Individuals with Disabilities Education Act that resulted in the denial Argued and Submitted Dec. 2008. appropriate free public education. Filed Aug. Because it is not clear whether our rul- Amended Jan. ings dispose claims, of all of KL.’s we remand this case to pursue allow K.L. to

any such claims she have asserted are not opinion. determined our remand,

On the district court must review

the ALJ’s determination that the District

provided K.L. with a free appropriate pub-

lic pursuant education to the “educational

benefit” standard set forth in Rowley and

reiterated in opinion. this deny We request

District’s for a judge different

remand. part,

REVERSED in VACATED in

part and REMANDED.

11. Because the district court’s awards of re- provide District failed to K.L. with a free imbursement, expenses educatiоn, related attorneys' appropriate public vacation of that premised fees were on its determination determination also vacates those awards. York, NY,

Lawrence M. Kaye, New plaintiff-appellant Marei Von Saher. Jr., Anthony Rowley, Fred Angeles, Los CA, for defendants-appellees Norton Si- mon Museum of Art at Pasadena and Nor- ton Simon Art Foundation. Kaplan, Monica, CA,

Frank Santa for Services, amicus curiae Bet Tzedek Legal The Jewish Federation Council of Greater Angeles, Los American Congress, Jewish Committee, American Jewish Simon Wies- enthal Center and Commission for Art Re- covery. Brown, Jr.,

Edmund G. Attorney Gener- al of the State of by California Antonette Cordero, CA, Benita Angeles, Los for ami- cus curiae State of California. PREGERSON, Before: HARRY D.W. THOMPSON, NELSON and DAVID R. Judges. Circuit Opinion by Judge THOMPSON; by Judge Dissent PREGERSON. ORDER AMENDING OPINION AND DENYING THE PETITIONS FOR REHEARING AND FOR REHEAR- ING EN BANC AND AMENDED OPINION ORDER panel, The with the following amend- ments, granted has petition panel for rehearing by filed appellee, Norton Simon Pasadena, Museum of Art at and has denied petitions rеhearing and for rehearing en by banc filed appel- Saher, lant Marei Von amici the State of California and Earthrights Inter- national. purchased II. The were paintings War August slip filed opinion

The Norton Simon or around 1971 Mu- at 578 F.3d 1016 published op. (“the Cir.2009) Pasadena, Art as follows: seum of is amended Museum”), display are now on there. last two F.3d at At page against the brought this claim Mu- Saher majority are opinion paragraphs under of the California Code seum paragraphs two first of these deleted. Procedure, extends the of Civil stat- contends that museum begins “The actions until 2010 for ute of limitations paragraph of the two and the last articles” art. recovery Holocaust-era without leave ends “dismissed paragraphs whether appeal on is primary issue new following paragraph to amend.” The government’s national ex- infringes deleted place two is inserted The powers. affairs dis- clusive paragraphs: agree, trict court that it does. We held not clear it is that Saher’s Because hоlding court’s and affirm the district not be amended to show could complaint preempted. § 354.3 is notice, dismissal a lack of reasonable appro- was to amend without leave three-year has a statute California also Capital, LLC v. priate. Eminence See recover of for actions to stolen limitations Inc., F.3d Aspeon, Civil property. Code of Proce- therefore, Cir.2003). We, grant Saher granted court dure 338. The district complaint allege to amend her leave to 12(b)(6) motion to Museum’s Rule dismiss notice reasonable to establish lack of that statute complaint Saher’s under with- California Code of Civil diligence under it possible Because out leave amend. this case remand Procedure her might be able to amend com- Saher for purpose. court the district her action within we plaint bring peti- was advised of the full court dismissal reverse the district court’s with- rehearing rehearing and for en amend, tions for remand for out leave fur- banc, amendments set proposed and of the proceedings. ther requested judge No rehear- forth above. Background I.

ing en banc. filed as amended above is opinion Looting in A. Nazi Art WWII this order. simultaneously with II, the Nazis During World War stole exception granted of relief With of artworks from hundreds of thousands appellee’s petition to the pursuant above through- collections private museums and petitions re- panel rehearing, for for Europe, has been termed the out in what rehearing en are and for banc hearing art “greatest of human displacement Judge Pregerson voted to DENIED. history.” Bazyler, Holocaust Michael J. grant rehearing and for petitions Battle for Restitution Justice: The rehearing en banc. (N.Y.U 2003). America’s Press Courts petitions rehearing No further II, Following of War the end World may be filed. rehearing en banc on the task of Allied Forces embarked returning country art to its the looted OPINION July President Truman origin. THOMPSON, Judge: Senior Circuit “readily identifi- authorized the return (“Saher”) collecting аrt from U.S. able” works of seeks the von Saher Marei See, Advisory points. e.g., Presidential alleged to have paintings return of two Assets on Holocaust during the Nazis Commission been looted World (hereinafter States, Washington Conference Pro Plunder and Restitution: United meantime, The U.S. and Holocaust Victims’ Assets ceedings). numerous (Dec.2000) (hereinafter Plunder SR-142 and their have Holocaust victims heirs Restitution). At Potsdam Confer- to recover their turned to the courts looted ence, formally adopted President Truman art. Alt e.g., Republic Austria v. restitution,” policy of “external under mann, S.Ct. the looted art was returned to the (2004). L.Ed.2d origin countries of to the individual —not for the owners. American Commission B. Section 354.3 Salvage Protection and Artistic and His- Many attempt face those obstacles who Areas, in War Report, toric Monuments through to recover art law- Holocaust-era (1946) (hereinafter Roberts Commis- challenges range proce- suits. The Report). sion dural hurdles such as statutes of limita- effоrts, Despite many these restitution tions, prudential standing doctrines. Nazis paintings stolen were never See, Pollock, e.g., Benjamin E. Out See, rightful returned to their owners. Night Fog: Permitting Litigation e.g., Bazyler Tracking prove- at 204. Prompt an International Resolution nearly impossi- nance of Nazi-looted art is Claims, Nazi-Looted Art 43 Houston ble, many since of changes ownership went (2006); 193, L.Rev. M. 213-28 Lawrence ‍​‌‌‌​‌‌‌​‌​​​‌‌‌‌​​​​‌‌​​​‌‌‌​‌‌‌‌​​‌​‌​​‌​‌​​​‌‍undocumented, most of the transac- Kaye, Avoidance and Resolution Cul- of place tions took on the black market. Id. Heritage Disputes: Recovery tural Art of years, recent In a number of the world’s Holocaust, Looted During the William- prominent most have museums discovered Disp. 243, ette Int’l J. L. & Resol. 252-58 their art during collections include stolen (2006). 2002, responded California II. World War Id. at 205-06. by enacting these difficulties California government The federal has continued Code of Civil Procedure 354.3.1 Section recovery to take action to address of provides: 354.3 1998, Congress Holocaust-era art. en- аny of Notwithstanding provision other acted the U.S. Holocaust Assets Commis- law, owner, any heir or of beneficiary or Act sion of Pub.L. No. owner, artwork, an of Holocaust-era (codified Stat. as amended at U.S.C. may bring an action to recover Holo- 1621). This Act established the Presi- any entity caust-era artwork de- Advisory dential Commission on Holocaust (1) in paragraph scribed of subdivision Assets, which conducted research on the (a). Subject to Section that ac- assets, fate of Holocaust-era and advised brought tion in a superior be court policies the President on future concerning state, of court ju- this shall have recovery assets. Id. That these risdiction action until over that its com- year, Department same the State con- pletion or resolution. forty-four vened conference with other 354.3(b). Section The California statute recovery nations to address the of Holo- “any allows against gal- suits museum or State, Dep’t caust-era assets. Pro- lery exhibits, displays, or sells ceedings Washington of the Conference on (Dec. scientific, 3,1998), historical, interpretive, article of http:// Nazi-Confiscated Art 354(a)(1). www.state.gov/p/eur/rt/hlcst/23231.htm significance.” artistic Section subsequent All references are to the stated. Califor- Procedure, nia Code of Civil unless otherwise behind, Gallery. including their also the statute of assets extends The statute until him a no- brought claims Decem- black 354.3 Goudstikker limitations 354.3(c). 1,000 of the containing 2010. Section a list over ber tebook collec- had left behind in his artworks he several other has enacted “Blackbook”). (the The Blackbook tion extending of limitations the statute laws as 2721 and lists Cranachs Numbers relating the Holocaust. claims they purchased states were (extending statute of 354.5 e.g., Section were at the Auction House and policy Lepke for insurance claims limitations heirs); their Section previously victims or owned the Church Holocaust (creating a of action and ex cause Holy Trinity 354.6 in Kiev. limitatiоns for slave

tending the statute of escaped, After the Goudstikkers WWII). out of Both arising claims labor Her- gallery. Nazis looted Goudstikker’s have been found these sister statutes man of the Third Goring, Reischsmarschall foreign affairs under the unconstitutional Reich, the Cranachs and hundreds seized Steinberg v. Int’l Comm’n doctrine. Goring other from the pieces gallery. Claims, Era Ins. 133 Cal. Holocaust Carinhall, country his sent the artwork (2005) Cal.Rptr.3d App.4th Berlin, estate where the collection near unconstitutional); Deutsch (finding 354.5 May 1945 approximately remained until Corp., Turner 324 F.3d when Allied Forces discovered it. Cir.2003) (finding § unconstitution artwork was then sent to recovered al). Point, Munich Collection where Central the from the collection works Goudstikker The Cranachs C. 1946, In or the were identified. about Saher, only surviving Jacques the heir Allied Forces returned the Goudstikker dealer, Goudstikker, a art filed deceased to the Netherlands. artworks against in 2007 the Museum under this suit The were never restituted Cranachs 496, and Penal Code California Instead, family. after the Goudstikker diptych the return of a entitled seeking Netherlands, in proceedings the pair Eve.” of oil diptych, The “Adam two government the delivered the Dutch by sixteenth-century artist Lucas paintings (hereinafter George one of the paintings Stroganoff, the Elder the “Cra- Cranach them, claimants, through he sold an nachs”), at currently public display dealer, art to the Museum. Museum. the 12(b)(6) mo- bought the Cranachs at an The filed Rule Goudstikker Museum May in or about art auction Berlin filed in complaint tion to dismiss Saher’s prominent was a art 1931.2 Goudstikker paintings. this for the return of the case Netherlands; specialized in the he dealer granted The court the motion and district paintings. Goudstikker’s in Old Master prejudice. claim with dismissed Saher’s 1,200 than art- contained more collection ex- The district court held that 354.3’s Rembrandts, Steens, works, including of limitations was tension of the statute Ruisdaels, and van Goghs. face, on its because it vio- unconstitutional doctrine, lated affairs as inter- foreign the Nazis invaded Nether- When by Ninth Circuit preted applied May 1940, Goudstikker and his lands court 324 F.3d 692. The district family country. family fled the left case, allegations as alleged accept these factual in this are in Sah- we 2. The facts section true, light most them in the complaint; disputed Mu- and construe er's some are posture Saher. procedural Given the favorable to seum. time, by seeking public realm the not whether the concluded that redress committed the course World those were in wrongs contents of articles fact II, California intruded on War statute true.” Premier Growth Fund v. Alliance power government’s (3d the federal exclusive 396, Capital Mgmt., 435 F.3d 401 n. 15 war, including resolve make and Cir.2006); Heliotrope accord Gen. Inc. v. procedure resolving claims. The war Co., Ford Motor 189 F.3d 981 n. 118 complaint court then Saher’s be- dismissed (9th Cir.1999) (taking judicial notice “that filed within cause it been had aware of the market was information three-year period of California’s statute of in news contained articles submitted limitations, Code Civil Proce- defendants.”). publications These appeal dure This followed. admissibility meet standards set 201(b). forth in Rule Federal of Evidence II. of Review Standard judicial we Accordingly, take notice of We review de novo the district court’s them an solely as indication what infor- dismissing complaint decision Saher’s un public mation in the was realm the time. 12(b)(6). der Rule Edwards v. Marin Park, (9th Inc., 1058, 1061 356 F.3d Cir. Constitutionality § 354.4 IV. Under 2004). accept all well-pleaded We factual Foreign Affairs Doctrine true, allegations and construe them in as Supreme Court has characterized light Saher. most favorable to Bell v. to deal with affairs Corp. Twombly, Atlantic 550 U.S. as a 1955, 1965, primarily, exclusively, S.Ct. 167 L.Ed.2d 929 if not federal power. Assoc, (2007); Garamendi, Johnson v. Riverside e.g., Healthcare Ins. Am. v. Cir.2008). Sys., 534 F.3d 539 U.S. 123 S.Ct. (2003); Miller, Zschernig L.Ed.2d 376 III. Motion for Judicial Notice 389 U.S. 88 S.Ct. 19 L.Ed.2d judicial The Museum moves for Davidowitz, (1968); Hines v. notice of two Presidential Commission re 52, 63, 399, (1941). 61 85 L.Ed. 581 S.Ct. military ports, approved by a order Presi Supreme Court has declared state dent Truman and enacted under the com fоreign laws unconstitutional under the af Eisenhower, mand of General and a when fairs doctrine the state law conflicts prepared by a memorandum State De with a federal action such as a treaty, partment committee. Judicial notice statute, federal or express executive legislative facts such as these is unneces See, Garamendi, branch policy. e.g., 539 comm, 201(a), sary. advisory Fed.R.Evid. 421-22, 123 U.S. at (invalidating S.Ct. 2374 See, e.g., note to 1972 amendments. Toth California statute conflicted with R.R., 335, v. Grand Trunk 306 F.3d 349 foreign policy); Crosby Presidential v. (“[Jjudicial Cir.2002) gener notice is Council, 363, Nat’l Foreign Trade 530 U.S. ally appropriate not the means to estab 373-74, 2288, 120 S.Ct. 147 L.Ed.2d 352 lish legal principles governing the the (2000) (invalidating a Massachusetts stat case.”). ute which stood as an to a obstacle Con gressional imposing act sanctions on Bur judi Museum moves for also ma); Belmont, U.S. v. 301 U.S. cial the fact newspa notice of that various 758, (1937) 57 (holding S.Ct. 81 L.Ed. 1134 pers, published magazines, and books have Assignment, that the an information thе Litvinov executive about Cranachs. Courts judicial publications agreement, preempted public take York notice of New policy). introduced “indicate was in what the

961 Council, 363, 2288, however, 373, 120 S.Ct. Occasionally, the absence (2000) Hines, conflict, has state (citing the declared 147 352 312 Court L.Ed.2d 399) (internal with the federal incompatible 67, quotation laws to be U.S. at 61 S.Ct. foreign power. omitted). affairs government’s marks 432, 88 S.Ct. e.g., Zschemig, 389 U.S. settling claims agreements Executive law, Oregon probate (striking down an foreign nations and nationals have action, any federal be- in the absence of long preemptive been accorded same an the State into cause it was “intrusion Garamendi, 416, effect. U.S. foreign the Con- affairs which field (“[V]alid agreements executive S.Ct. 2374 and the stitution entrusts to President law, just as preempt are fit to state trea- 63, Hines, Congress”); 312 U.S. at are[.]”); Regan, ties & Dames Moore im- (invalidating Pennsylvania S.Ct. 399 101 S.Ct. 69 L.Ed.2d U.S. of immi- migration law because field (1981); Pink, United States v. occupied exclusivеly gration regulation was (1942); U.S. 86 L.Ed. 796 S.Ct. regulations); statutes and see federal Belmont, 301 U.S. at 57 S.Ct. 758. (concluding at 712 also 324 F.3d Garamendi, Supreme Court invalidat- gov- on infringed 354.6 statutory ed a California scheme which wage and power ernment’s exclusive litigation of facilitated Holocaust-era insur- war). resolve ance claims. 539 U.S. at Garamendi § 354.3 is argues The Museum 123 S.Ct. 2374. The Court concluded that First, theory. under preempted either posed an California scheme obstacle contends, § 354.3 Museum conflicts with Agreement German Foundation external policy the ‍​‌‌‌​‌‌‌​‌​​​‌‌‌‌​​​​‌‌​​​‌‌‌​‌‌‌‌​​‌​‌​​‌​‌​​​‌‍Executive Branch’s expressions pol- other of Executive Branch II. Alter- following World War icy nonjudicial preferring resolution of argues, natively, the Museum such claims. Id. at 123 S.Ct. 2374. infringes because it fed- preempted government’s eral exclusive con- Here, the Museum contends that affairs, and specifically, duct preempted by 354.3 is the Executive injuries arising redress war. power to external policy Branch’s restitution. argument each in turn. We address argues, Museum ex policy, This was first, pressed in main sоurces: two A. the Ex- Does 354.3Conñict With Declaration, second, “Art London Ob Policy of Exter- ecutive Branch’s Zone,” jects policy in U.S. state nal Restitution? Truman approved by ment President dur “power” Federal law’s August in ing the Potsdam Conference of Suprem state arises from the preempt law Clause, acy which “the Laws provides that of the States” and “all Treaties ... United London Declaration supreme Law Land ... shall be the of the Netherlands, The United States and the any Thing in the or Laws of Constitution nations, along sig- with sixteen other were Contrary State to the notwithstand natories to London Declaration of Jan- Const, VI, § ing.” art. 2. Under a U.S. uary 5, Proper- 1943. Forced Transfers of statutory preemption analysis, traditional 1943, ty Enemy-Controlled Territory, in in preemption conflict or obstacle occurs State, Dep’t of Treaties and Other Inter- an obstacle where the state law “stands as of Agreements national the United States accomplishment to the and execution of (C. 1776-1949, p. of America Bevans objectives of purposes the full and Con (hereinafter Bevans). The Crosby Foreign comp.1969) gress.” v. Nat’l Trade warning Declaration served as a “formal tution at SR-142. The U.S. authorities concerned, lists, persons all and in in particular examined the and artwork when was countries,” identified, neutral Allies intended it was country returned to the “to do their utmost to origin. defeat methods of policy Id. Under this of “exter- practiced by govern- of dispossession restitution,” nal the U.S. restituted the they ments at [were] war[.]” countries, looted artwork to not individu- Id. Zone; Objects als. Art in U.S. Plunder Restitution SR-139-SR-142. The Declaration, explicitly the Allies newly governments respon- liberated were right reserved the to invalidate wartime restituting sible for the art to the individ- regardless property, transfers of ual owners. Once the art was returned to dealings “whether such transfers or [had] the country origin, played the U.S. no open looting taken or plunder, the form further role. legal form, or of transactions in apparently they even purported] when to be volun- A contemporaneous memorandum from tarily effected.” Id. The Declaration does Department State illuminates several not explicitly address or repara- restitution of the government pre reasons tions, but been has credited some with ferred policy of external restitution laying the foundation United over individual Dep’t restitution. U.S. postwar policy. States’s State, Memorandum from Interdivisional e.g., Plunder Restitution at SR-139. Rest., Rep., Comm. on Prop. & Rights, Objects Art in U.S. Zones Subcomm. Recommendations on Resti tution, NACP, 1944, 1, Apr. RG Lot When the American forces entered Ger- 62D-4, 49, State/Notter, Box many they [320633-644] the winter of dis- (hereinafter large art, covered stashes of Recommendations Restitu Nazi-looted tion). castles, First, banks, mines, complexities hidden in in view of salt even eaves. Plunder and sham transactions through Restitution at which the SR-13, artworks, SR-85. U.S. authorities Nazis many established seized several points central collection within the State Department felt it best allow the U.S. Zone to assemble the recovered art- individual countries to restitution in handle work proper study.” “for care and Re- way they “whatever see fit.” Id. at 2. port, Objects Zone, Art July Second, U.S. observed, Department the State 1945, NACP, HQ, RG USGCC ROUS eases, some it might impossible “be Command, Army Box File: Fine Art original locate the owners or their heirs (hereinafter Objects “Art [313574-575] governments and the will involved have to Zone”). decide what should be prop done with the erty or proceeds therefrom.” Id. Finally, July On Potsdam Con- the State Department recognized that the ference, President approved Truman liberated countries had a themselves stake policy setting statement forth the stan- in the restitution of art owned their operating procedures dard governing the citizens: looted artwork found within the U.S. zone most, occupation. Zone; many, [I]n

of Art in if not Objects cases the local U.S. “purchased” funds[with Roberts at which the Report Commission 148. Nazis governments formerly persecuted] of the the art the occupied sup- were plied originally by government countries submitted consolidated lists of the local Germans, items taken the or with infor- central as occupation bank costs or mation about through location and circum- forced credits. The Germans in stances of the theft. Plunder and Resti- effect government forced local however, that argues, also The individual Museum purchases.

pay their many government’s the federal concerns in of local cur- recompense received owner leading policy to the external restitution a re- rency country but the as whole For today. example, remain relevant of recompense no for the transfer ceived argues claims under 354.3 Museum foreign owners. These property to they problematic, are because ask Califor- much looting just as as cases constitute nia courts to review the restitution deci- outright without rec- the cases of seizure forеign governments.3 Even if sions of ompense. true, would be no conflict be- there still Id. at 2-3. cause, above, as stated the external resti- stopped accepting The U.S. authorities tution is no in effect. policy longer of restitution looted claims external sum, In been had California statute Plun- September as artwork of WWII, immediately following it enacted By at SR-143. der Restitution with undoubtedly would have conflicted three million close to beginning of policy Executive Branch’s external property cultural had pieces Jewish not, however, The statute does resolution. different coun- been restituted twelve any foreign policy conflict with current authorities. Id. tries the U.S. espoused by the Executive Branch. Had California enacted directly with the it would have conflicted Any B. In the Absence of Conñict government’s policy of external federal Foreign or Pol- Federal Law With been enact- If the statute had restitution. icy, 354.3 Nonetheless war, in the immediate aftermath ed Preemрted Foreign Af- Under competing presented a meth- it would have fairs Doctrine? claims, a resolving od of times, seldomly, Supreme At albeit the return of

forum for individuals seek a to be preempt Court has found state law clear contravention of their looted art —in infringes upon ed it because The Califor- policy. Executive Branch government’s power to conduct exclusive presented also would have nia statute affairs, foreign though even the law does goals to several under- direct threat policy. with a federal law or conflict policy, in- lying the Executive Branch’s 664; Zschernig, S.Ct. Germany. cluding the rehabilitation of Hines, 61 S.Ct. Garamendi, suggested that a the Court policy The United States’s of external statutory preemption traditional “field” however, restitution, in 1948. After ended analysis employed be such cases: should authorities September the U.S. any claims for If to take accept simply position more ex- were refused State policy no and Restitu- on a matter ternal restitution. Plunder fact, addressing claim to be a tradi- as states serious tion at SR-143. Saher responsibility, preemp- tional state field complaint, the Cranachs were returned her doctrine, might appropriate tion be the through the U.S. exter- to the Netherlands had whether the National Government program. nal restitution Section 354.3 acted, had, if it without as an reference cannot conflict with stand obstacle conflict, principle degree is no effect. policy longer to a ing preemption. ad- with field These and other related concerns are 3. fully in the below deal- dressed more section 964 (1968)

having been that the Consti- S.Ct. 19 (rejecting established L.Ed.2d 683 foreign policy exclusively tution entrusts in purported regulating state interest de- See, e.g., the National Government. Deutsch, scent property); of 324 F.3d at Davidowitz, v. 312 61 Hines (rejecting purported state in interest (1941). 399, 85 L.Ed. 581 S.Ct. rules). procedural Garamendi, n. 539 U.S. rejected in Garamendi Court dicta S.Ct. the “traditional state interests” advanced by HVIRA, its traditional California in statutory support finding

Unlike counterpart, foreign preemp affairs field purpose instead that real state tion occur in absence of [the] “even a law was the “concern for the thou- several statute, treaty or a [because] state living sand Holocaust said survivors to be by may violate the establish Garamendi, Constitution in the state.” 539 U.S. at ing policy.” its own foreign § 2374. Though S.Ct. 354.3 purports (internal quota at 709 and F.3d citation regulate property, traditionally an area omitted). then, tions The central question, states, HVIRA, § left to the like 354.3’s § in enacting is this: has California purpose real is to provide relief to Holo- a responsibility, addressed traditional state caust victims and their heirs. foreign or has it on a infringed affairs California’s help desire to its resident reserved the Constitution exclu Holocaust victims their and heirs is a noble sively government? to the national legislative goal, with entirely which we are Garamendi, however, sympathetic. 1. Does 354.3 Concern a Tradition- Supreme held Court that “California’s con- Responsibility? al State cern for the several thousand Holocaust quin- Saher contends concerns living ... survivors said be the state tessential state function: the establish- does displace general not standards ment of a statute limitations for actions evaluating apply State’s claim to its fo- seeking the return of property. stolen rum a particular controversy law to or course, Property, traditionally regu- transaction, claim under State’s lated But state. 354.3 cannot be Garamendi, strong is not a one.” 539 U.S. fairly categorized as a garden variety 426-27, S.Ct. The State’s property regulation. Section 354.3 does interest alone was not sufficient in Garam- apply art, to all claims of stolen endi to being save the statute: “[T]here all even art claims of looted in war. The 100,000 country, about survivors only statute addresses the claims of Holo- only a small fraction of them live in Cali- caust victims thеir heirs. Section against fornia. As responsibility 354.3(b). America, United humanity States of consistently Courts have struck down underlying give state statute could not purport regulate state laws which an State the benefit of doubt in re- competence, area of traditional state but in solving conflict policy.” with national

fact, e.g., affect affairs. Gar- Id. amendi, 539 U.S. at 123 S.Ct. 2374 arguably stronger has inter- (rejecting purported state in regu- interest in enacting est 354.3 than it did in enact- lating insurance business blue sky ing the related struck laws); statutes down Crosby, 530 U.S. at 373 n. Deutsch and (rejecting S.Ct. 2288 Garamendi. Section 354.3 purported state interest taxing spending); ‍​‌‌‌​‌‌‌​‌​​​‌‌‌‌​​​​‌‌​​​‌‌‌​‌‌‌‌​​‌​‌​​‌​‌​​​‌‍problem Zscher- addresses the art Nazi-looted Miller, nig 429, 437-38, currently hanging on the walls of

965 Holocaust, have been less who Assem. of galleries. museums and state’s in deal- forthcoming their business Com., than Background Information Work- Jud. (2001-2002 ings. 1758 Bill No. Assem. sheet for Sess.) 30, 2002.

Reg. Jan. Research, Planning & Office Governor’s Bill Report Bill on Assem. No. Enrolled in- a certainly legitimate has California (2001-2002) Aug. 2002 Reg. Sess. gal- museums and regulating the terest in added). (emphasis borders, and its operating within leries trading dis- in and prеventing them from all its doors as a forum to By opening Indeed, ap- it art. bring Nazi-looted playing and their heirs Holocaust victims have original goal of 354.3 pears against “any in claims California Holocaust regulate California museums been to located in the gallery” or whether museum to its a manner. Prior galleries not, such expressed has its state or California however, enactment, bill amended. was govern- with dissatisfaction thereof) limiting scope (or The restriction lack of resti- ment’s resolution gal- against “museums and statute to suits arising out of War II. tution claims Word Assem. was stricken. leries in California” “no doing, can make seri- In so California Amend, (2001- No. Assem. Bill addressing claim be a traditional ous Sess.); Com., Analysis Garamendi, Jud. Reg. Sen. responsibility.” state (2001-2002 Reg. 2374; Bill No. 1758 of Assem. see at 419 n. also U.S. S.Ct. Sess.) enacted, 5-6. As pp. Jun. (rejecting 324 F.3d at 712 Califor- against “any muse- allows suits wrongs the statute “redressing] com- nia’s interest exhibits, or displays, gallery um or mitted the course the Second World historical, interpretive, War”). articlе of any sells cannot have a “distinct scientific, whether significance,” or artistic juristic personality” from that of Unit- in the state or not. Section located it to matters of ed States when comes 354.3(a)(1). Pink, foreign affairs. 315 U.S. dealings 552. it comes to S.Ct. When as be- statute enacted scope nations, disappear.” “state lines pro- purported interest lies California’s Belmont, S.Ct. art regulating its its residents tecting version of 354.3 sum, trade. The amended §of scope 354.3 belies real was suggests purpose that California’s regulating interest in sto- purported state litigating forum for friendly to create a galleries or or with- property len museums claims, any- open Holocaust By enacting Califor- in the State. a or one in the world to sue museum forum for the nia has created world-wide without the state. gallery located within or claims. of Holocaust restitution resolution Governor’s office A memorandum from the it goal, this is not may be laudable While provides responsibili- further illustration California’s area of an “traditional state it, subject is characterized as intent. In California ty,” and the statute therefore quest justice pioneering leader in the Garam- preemption analysis. a field See victims: at 419 n. 123 S.Ct. 2374. Holocaust endi decade, to the past it has come Does Statute In- the California spoils gained attention that public’s Expressly a Power or Im- trude on enjoyed were the Nazi Holocaust pliedly the Federal Reserved to just has been by the Nazis. California by the Constitution? Government who exposing those entities a leader in in- held that financially plunder The District Court benefitted to make and on the resolve unusual circumstances trudes exploited the war, exclusively Saher, however, power § reserved argues 354.3 is government by federal the Constitution. distinguishable from the statute issue in agree. We Deutsch, target because it does not former wartime enemies. Section 354.3 author- power The Constitution the war divides only against izes gal- suits museums and Executive, is bеtween the who the Com- leries, injury but the actionable at the Forces, mander-in-Chief of the Armed heart of the Nazi theft Congress, statute of art. power who has Const, II, 2; legislature § § declare war. U.S. art. Id. enacted 354.6 I, clearly § provides art. 8. Deutsch “with rectifying the aim of wartime wrongs “[mjatters related to war are for the feder- our by by parties committed enemies or address,” al government alone to and state our operating under protection.” enemies’ infringe power statutes on this will Deutsch, 324 F.3d at 708. California en- Deutsch, be preempted. 324 F.3d at 712. § acted the same verboten in- tent. Distinctions between the Section 354.3 class of remedy establishes eligible injuries. wartime legislative findings light defendants are irrelevant accompanying repeatedly similarity. statute refer- of this fatal ence the “Nazi “Nazi regime,” persecu- Saher also contends that Alperin under tion,” “the many atrocities” the Nazis Bank, v. Vatican 410 F.3d 532 Cir. Legis. committed. 2002 Cal. Serv. 332 2005), “garden claims for restitution of va (West 2002). 354.3, By enacting § Califor- riety property” can be distinguishеd from nia wrongs “seeks redress committed in claims for reparation arising from war course Second World War” —a time injury. Alperin we considered Deutsch, motive that was fatal to 354.6. whether the claims for present F.3d at by ed pre class Holocaust survivors closely Section 354.3 was modeled on nonjusticiable sented a political question. § 354.6,which was infringe found to on the places Saher particular reliance the fol government’s power exclusive lowing quote: “Reparation stealing, Com., make and resolve war. Sen. Rules wartime, even during is not a claim that Off. of Analyses, Sen. Floor 3d. reading finds textual commitment in the Constitu (2001- analysis of Assem. Bill No. 1758 tion.” Alperin, 410 F.3d at This Sess.) 2002 Reg. Aug. 2002. Like its quote test, references the first Baker sister statute struck down which requires courts to consider whether special 354.3 “creates a applies rule that the case in question an concerns issue only newly to a of plaintiffs. defined class” that has textually been committed Id. Like 354.3 creates a new Cоnstitution govern to another branch of cause of action “with the aim of rectifying ment. (citing Id. at 549-52 Baker v. wrongs wartime committed our enemies Carr, 186, 210-11, 82 S.Ct. byor parties our operating under enemies’ (1962)). L.Ed.2d Ultimately, in Al protection.” 324 F.3d at 708. This is perin because, despite politi we concluded that significant as the Deutsch Court cal noted, overtones inherent in brought by cases generally state is more likely “[a] survivors, Holocaust underlying prop exceed limits of its when it erty seeks rights presented to alter or issues create such cases were obli- gations political questions than when it merely seeks to fur- constitutionally ther of already existing enforcement rights political committed to the branches. Id. and duties.” 324 F.3d at 708. at 551. See, e.g., and their heirs. caust survivors Alperin misplaced. is reliance on

Saher’s 23, 1998, 112 has the Pub.L. No. June judiciary the holding that Our proper- at 22 U.S.C. adjudicate Holocaust-era Stat. codified power to have Advisory not mean that states ty (establishing claims does the Presidential lеgislative remedies provide to power on Holocaust Assets Commission Here, ques- relevant Restitution, claims. States); for these Plunder & su- United power wage to and (the whether the tion is final of the Presidential pra report war, legis- including power resolve Advisory Commission on Holocaust Assets claims, is reparation and late restitution States); State, Dep’t in the U.S. United exclusively reserved one that has been Principles on Washington Conference by government the Constitu- the national (Dec. 3, 1998),http:// Art Nazi-Confiscated that it has. conclude tion. We www.state.gov/p/eur/rt/hlcst/23231.htm (hereinafter Washington Principles), core, concerns resti- at its Section forty-four governments (adopted by the injuries by inflicted the Nazi tution for participating Washington in the Confer- II. Claims regime during Word War Assets, by hosted ence on Holocaust-Era statute, including this brought under Department the State on December claim, require would instant 1998). history This of federal action is so made to review acts courts comprehensive pervasive and as to leave example, For by foreign governments. legislation. English no room for state case, prove- contest the parties this Cf. Co., v. General Elec. In order to deter- nance of the Cranachs. (discuss- (1990) 2270, 110 L.Ed.2d 65 good title S.Ct. the Museum has mine whether Cranachs, ing statutory preemption). traditional field court would a California to the the restitution necessarily have to review “repre- Finally, government, the federal government Dutch made decisions senting it the collective interests of as does illustrates that example This and courts. states, full ... and entrusted separated cannot be claims for the conduct of responsibility exclusive they transgressions from which the Nazi Hines, foreign sovereignties.” affairs with arise. recovery 61 S.Ct. 399. The today is buttressed interna- conclusion art affects the Our of Holocaust-era action history market, of federal af- the documented as well as tional art subject art. addressing the of Nazi-looted Many called for the creation of fairs. have Investigation Looting Art Unit system, registration an international gathered Services Strategic the Office of art dis- commission to settle Nazi-looted looted art intelligence about great Pollock, deal 43 Houston putes. e.g., during and after through operations covert Only govern- the federal L.Rev. at 231. Plunder and Restitution SR- the war. negotiate possesses power ment war, Immediately ‍​‌‌‌​‌‌‌​‌​​​‌‌‌‌​​​​‌‌​​​‌‌‌​‌‌‌‌​​‌​‌​​‌​‌​​​‌‍following the remedies with the establish these or other implemented pro- government community. As discussed international restitution, as discussed of external gram above, government has initi- the federal dispute beyond above. It is in more detail countries, other ated discussions with no role for individual states that there was yield comprehensive hopefully which will Nazi-looted in the restitution of play and their for all Holocaust victims remedy immediately following during and assets See, e.g., Washington Conference heirs. the war. organization comparable tо Report. No on Holo- International Commission Congresses Administrations and

Recent has es- Era Insurance Claims been facing Holo- caust problems to address continue yet three-year tablished to resolve Holocaust-era art a strict statute of limitations. however, 338(3).4 not, justify This claims. does Cal.Civ.Proc.Code In occupied California’s intrusion into a field section was incorporate amended to a dis- exclusively by government. the federal covery rule: cause of action in the “[T]he theft, case of as defined in 484 of the sum, it is California’s lack of Code, Penal art or artifact is not ultimately act which is fatal. deemed to have until discovery accrued the held that “[i]n we absence some by of the whereabouts of the' article specific action that constitutes authoriza- aggrieved party, part government, agent, tion on the of the federal his or her or the prohibited exercising are for- agency states law enforcement originally that in- including eign powers, modifying affairs vestigated the theft.”5 Cal.Civ.Proc.Code government’s the federal resolution of war- 338(c); § Legis. 1982 Cal. 3401 Serv. disputes.” related 324 F.3d at (West). does Saher not claim that may improve upon 714. California 1982 applied amendments should be to her add to the resolution of the war. Id. The Rather, case. she contends that the stat- surrounding factual circumstances this ute of limitations on her claim did not many years passed case—the which have begin to run until she discovered that the Goring since stole the Cranachs from possession Cranachs were of the Goudstikker, paintings restitution of the to museum. Allies, the Netherlands or the Decisions from California’s intermediate changes ownership since then —cannot appellate court differing have reached con- § save 354.3 from this fatal flaw. clusions as to when the statute of limita- § begins tions under 338 to run prop- V. Did the District Err in Court Con- erty prior stolen In Naftzger 1983. v. cluding that Saher’s claim was American Society, Numismatic the сourt Time-Barred Under California Code held that a cause of action for the return of § of Civil Procedure 338? property stolen before the 1982 amend- Though bring Saher cannot her claim ment when the owner “accrue[s] discover- § may under she be able to state a identity person ed the of the in possession three-year cause of action within the stat- property, stolen and not when the § ute of limitations of 338. The district 421, theft occurred.” 42 Cal.App.4th § court held that claim Saher’s was 784, (1996). Cal.Rptr.2d Naftzger The time-barred, because she did not inherit court concluded that “there awas discov- her interest until Cranachs after the ery rule of implicit accrual in the prior statute of limitations on the claim had version of section Cal.Rptr.2d 338.” 49 claim, expired. however, might sur- 12(b)(6) In Society 786. Pioneers v. vive a Rule motion to dismiss de- of California Baker, however, pending upon prior how the court held that might Saher be able to allege amendments, the notice element. the 1982 “the statute of began limitations to run against anew

A. Constructive Notice subsequent purchaser.” Cal.App.4th (1996). At the time the acquired Cal.Rptr.2d museum 869-70 Cranachs, around provided specifically Pioneers court noted its 383(3) phrase was renumbered "art or artifact” was 383(c); historical, subsequent all replaced interpre- references refer to with "article of (c) tive, scientific, simplicity’s subsection significance.” sake. 1988 Cal. or artistic Cal. (West). Legis. (West 1989). 338(c) Serv. 1186 Civ.Proc.Code Diligence B. Reasonable 50 Cal. Naftzger. disagreement at 870 n. 10. Rptr.2d The Museum asserts that Saher is making a matter of law from precluded as has not Supreme Court The California showing of reasonable dili required “has, however, issue, but addressed her gence, underlying because the facts rule, discovery specifically held publicly claim were available. We dis incorporates prin applies, it whenever agree. v. notice.” Orkin ciple of constructive A dismissed un claim be (9th Cir.2007) 734, 741 487 F.3d Taylor, 12(b)(6) that it ground der Rule on the Co., 44 Jolly Lilly & Cal.3d (citing Eli applicable statute of limita barred 751 P.2d 923 Cal.Rptr. only running “the of the statute tions when (1988)). Orkin, Thus, we concluded complaint.” apparent is on the face of the rule, discovery [pre-1983] a “under the Bank, Huynh v. Manhattan 465 Chase plaintiff accrues when the cause of action (9th Cir.2006). 992, com “[A] F.3d 997 have dis reasonably could discovered it ap cannot be dismissed unless plaint and the whereabouts covered her claim to beyond plaintiff doubt that the can pears Id. at 741. property.” of her prove no set of facts that would establish however, argues, that the Saher Supermail the timeliness of the claim.” Naftz- discovery rule based ger adopted (9th court U.S., 1204, 1206 Cargo, Inc. v. 68 F.3d constructive, actual, As Cir.1995). notice. we not Orkin, in a rule would be pointed out such Orkin, plain- we concluded that the Su- clearly inconsistent California claims were time-barred because the tiffs’ (citing Jolly, precedent. Id. preme Court complaint established facts face of 658, 1109, Cal.Rptr. Cаl.3d any showing of reasonable that foreclosed 923). P.2d Orkin, diligence. F.3d at 742. The complaint Orkins’ admitted that the defen- urges certify that we the issue to Saher purchased painting ques- dant had for reso Supreme Court California auction, publicized tion at a and that she contends that the Though lution. Saher publicly the owner in a avail- was listed as interpretation of California Orkin court’s Id. at 741-42. catalogue able raisonné. incorrect, “it is well estab state law is contrast, facts on the face By there are no that we reconsider earlier lished complaint which foreclose a of Saher’s only by en banc precedent Ninth Circuit showing of lack of reasonable notice as a Supreme intervening or after an review matter of law. City Court decision.” Class Plaintiffs that com- Because it is not clear Saher’s (9th Seattle, 1268, 955 F.2d Cir. plaint could not be amended to show a lack 1992) (declining to revisit the court’s inter notice, without of reasonable dismissal law under pretation of New York state appropriate. leave to amend was not See circumstances). Orkin, Under we similar Inc., Capital, Aspeon, Eminence LLC v. apply a constructive notice are bound Cir.2003). We, 316 F.3d standard. therefore, grant leave to amend her Saher conclusion, cause of action Saher’s lack of reasonable complaint allege she discovered or under Califor- began diligence to accrue when notice to establish claim reasonably could have discovered her nia of Civil Procedure Code Cranachs, this case to the district court to the and their whereabouts. remand Orkin, purpose. that F.3d at 741. subject jurisdiction 354.3 to entities to the

VI. Conclusion of the State of California. Because Cali- of the district court is judgment fornia has “serious claim to be address- part AFFIRMED in and REVERSED ing responsibility,” a traditional state it is REMANDED fur- part. The case is Garamendi proceedings opin- requires ther consistent with this clear that apply us to ion. рreemption, conflict preemption. field reliance on Deutsch v. majority’s PREGERSON, Judge, Circuit (9th Cir.2005) Corp., Turner 324 F.3d dissenting part: misplaced. is The statute in Cal- majority’s I from the dissent conclusion ifornia Code of Civil Procedure acting that outside the realm recovery allowed for slave labor performed responsibility, of traditional state and that 1945,[for] “between 1929 and the Nazi re- preemption applies. field Where State gime, sympathizers, its allies and or enter- its competence,” acts within “traditional prises transacting business Supreme suggested Court has occupied by areas or under control of the preemption, preemption, conflict not field regime sympathiz- Nazi or its allies and doctrine. Am. Ins. appropriate is the ers.” This court held California im- Garamendi, Ass’n v. 420 n. permissibly upon intruded the power of (2003). 123 S.Ct. 156 L.Ed.2d 376 government the federal Garamendi counsels resolve war preemption field the Deutsch statute “with the aim apply simply would State were enacting “[i]f position take a on a matter of foreign wartime wrongs committed rectifying ” policy with no claim serious to be address- our 711(em- enemies Id. .... ing a traditional state responsibility....” added). phasis Id. That is not the case here. majority The concludes that Section undisputed It is property is tradi- 354.3 suffers from a similarity” “fatal tionally regulated by the State. The ma- the Deutsch statute because Section 354.3 jority acknowledges that California has a applies to Maj. Op. looted artwork. at 966. legitimate interest in regulating museums I agree. majority do not overlooks galleries, and and that California Code of significant differences between Civil Procedure 354.3 “addresses the Deutsch statute and Section 354.3. First, problem of currently hang- Nazi-looted art above, as discussed here California has ing on the walls the state’s museums within scope acted of its traditional galleries.” Maj. Op. and at 964-65. How- competence regulate property over ever, majority goes on to hold that jurisdiction. Furthermore, which it has because applies Section 354.3 muse- unlike the statute in Section 354.3 um gallery, or “California has created a does not target enemies of the United world-wide forum for the resolution of Ho- Nor, States for wartime actions. contrary claims,” locaust restitution and that characterization, to the majority’s acting State is therefore does scope outside the of its traditional Maj. Op. interests. provide Section 354.3 for war reparations.1 965. Maj. Here, Op. at 966-67. Appellee, a California, museum located in acquired majority reads the statute far too property stolen broadly. Appellant A now reading “any reasonable museum gallery” or would limit Section seeks to recover that property. I fail to Dictionary reparation obligation.” Black’s Law defines international Black’s Law Dic- "[cjompensation (8th ed.2004). injury wrong, as tionary for an Section 354.3 esp. damages only for wartime or breach recovery of an allows for the of stolen art. and allowing such statute how California see govern- the federal recovery intrudes on Hollingsworth; Knight; Dennis Gail J. resolve war. to make and ment’s Gutierrez; Hak-Shing F. Martin Wil Tam; Jansson; liam Mark A. Protect- district court. As reverse the I would marriage. Project Corn-Yes on holds, majority correctly Section Renewal, Defen OFVRW California How- policy. with federal not conflict does dant-Intervenors-Appellants. ever, acted within its tradi- California has preemption and field competence, tional Perry; Stier; M. B. Kristin Sandra I dissent apply. Accordingly, should not Katami; Jeffrey Zar Paul T. J. part. rillo, Plaintiffs-Appellees,

and Family Coalition; Our Lavender Sen Bay; Parents, iors of the East Fami lies, and Friends of Lesbians City Gays, County Francis San co, Plaintiff-intervenors-Appellees, Stier; PERRY; M. B. Kristin Sandra Zarrillo, Katami; Jeffrey J.

Paul T. Schwarzenegger; Edmund Arnold G. Plaintiffs-Appellees, Brown, Jr.; Horton; Mark B. Linette Scott; O’Connell; Patrick Dean C. Defendants, Logan, County Francisco, City and of San

Plaintiff-intervenor, Hollingsworth; Knight; Dennis Gail J. Gutierrez; Hak-Shing Mаrtin F. Wil Jansson; Tam; liam Mark A. Protect- SCHWARZENEGGER, in his of Arnold marriage Project Com-Yes capacity of Califor ficial as Governor Renewal, Defen OFVRW California Brown, Jr., nia; Edmund in his G. dant-intervenors-Appellants. capacity Attorney as General official Nos. 09-17551. California; Mark B. Horton his of Appeals, United States Court capacity Director of the official as Ninth Circuit. Department of Public Registrar Health & of Vital Sta State 30, 2009. Dec. tistics; Scott, in her official Linette Boies, Uno, Boies, capacity Deputy Thoedore H. as Director of Health David Flexner, Armonk, Strategic Planning NY, & Theo- Information & Schiller Jr., Boutrous, Department Esquire, of Public dore J. Christo- the California O’Connell, Dusseault, ‍​‌‌‌​‌‌‌​‌​​​‌‌‌‌​​​​‌‌​​​‌‌‌​‌‌‌‌​​‌​‌​​‌​‌​​​‌‍Health; Evangelis Ka- pher Patrick in his offi D. Theane Crutcher, LLP, Los capacity pur, Gibson Dunn & cial as Clerk-Recorder Dettmer, Alameda; CA, County Angeles, Douglas Dean Ethan Es- C. Lo Lazarus, Regis Enrique gan, capacity quire, as Rebecca Justice his official Gibson, trar-Recorder/County Dunn & Monagas, the Antonio Crutch- Clerk for LLP, Francisco, CA, County Angeles, Defendants, Matthew er San of Los

Case Details

Case Name: Von Saher v. Norton Simon Museum of Art at Pasadena

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 14, 2010

Citation: 592 F.3d 954

Docket Number: 07-56691

Court Abbreviation: 9th Cir.