Marei Von Saher v. Norton Simon Museum of Art at Pasadena ; Norton Simon Art Foundation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M AREI VON S AHER ,
Plaintiff-Appellant,
v.
NORTON S IMON M USEUM OF ART AT
P ASADENA ; NORTON S IMON ART
FOUNDATION ,
Defendants-Appellees.
No. 16-56308
D.C. No.
2:07-cv-02866-
JFW-SS
OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 14, 2018
Pasadena, California
Filed July 30, 2018
Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and James Donato,* District
Judge.
* The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.

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2 VON S AHER V. NORTON S IMON M USEUM OF ART
Opinion by Judge McKeown;
Concurrence by Judge Wardlaw
SUMMARY**
Act of State Doctrine
The 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.
Following 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 paintings.
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
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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VON S AHER V . NORTON S IMON M USEUM OF ART 3
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.
The 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 case.
Concurring, 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.
COUNSEL
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.
Fred 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
Defendants-Appellees.

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4 VON S AHER V. NORTON S IMON M USEUM OF ART
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.
Owen 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.
Susan 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.
Thomas 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.

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VON S AHER V . NORTON S IMON M USEUM OF ART 5
OPINION
McKEOWN, Circuit Judge:
Hanging 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.
Marei 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.
In the 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 after.

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6 VON S AHER V. NORTON S IMON M USEUM OF ART
This 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 Stroganoff.
We 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.
Background
T HE PAINTINGS
At the 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.”1 The paintings became
the property of the art dealership in which Goudstikker was
principal shareholder (“the Goudstikker Firm” or “the
Firm”).
1 The district court found that the Stroganoff family “never owned”
the Cranachs, a fact contested by the Museum and muddied by the record
evidence. While we need not determine whether the Stroganoff family
once owned the Cranachs, the evidence that it even possibly owned the
paintings bears on whether Stroganoff’s assertion of ownership to the
Dutch government in the 1960s presented a colorable restitution claim,
and hence prompted an act of state.

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VON S AHER V . NORTON S IMON M USEUM OF ART 7
In May 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.
After 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.2 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”).
After 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.
T HE DUTCH RESTITUTION S YSTEM
During 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
2 At various times until the Netherlands and the Firm reached a
settlement agreement in 1952, certain Dutch authorities took the position
that the Göring and Miedl transactions were voluntary. That idea has
long since been dispelled, and the forced nature of the transaction is
uncontested by the parties.

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8 VON S AHER V. NORTON S IMON M USEUM OF ART
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.
Royal Decree A6 and the 1947 CORVO Decision
The 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 still effective.”
In 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.
Royal Decree E100
The 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].”
The 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

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VON S AHER V . NORTON S IMON M USEUM OF ART 9
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.”
The 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.
Decree 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.
Royal Decree E133
The 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

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10 VON S AHER V. NORTON S IMON M USEUM OF ART
“[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 Germany.
VON S AHER’S FAMILY DECLINED TO S EEK
RESTORATION OF RIGHTS IN THE CRANACHS
After the war, the Dutch government seized what
previously had been the Goudstikker Firm (now the Miedl
Firm) as an enemy asset and appointed new administrators.
Goudstikker’s widow (and von Saher’s mother-in-law) Desi
returned to the Netherlands to pursue restitution.
With Desi and new leadership in place, on the strategic
advice of its business advisers and legal counsel, the
Goudstikker Firm decided not to pursue restitution for the
Göring transaction. Specifically, the Firm believed that
seeking restitution would have “left [the business] with a
large number of works of art that are difficult to sell”; “led
to the revival of an art dealership with all pertinent negative
consequences,” including “find[ing] a suitable person to run
such a business”; and “led to a considerable reduction in the
[business’s] liquid assets.” The Firm’s attorney Max Meyer
laid out his advice in a memorandum to the Firm. A.E.D.
von Saher, who later married Desi, confirmed that “the
shareholders still considered to also conduct legal redress
with respect to the Goering contract. Mr. Meyer and Mr.
Lemberger strongly advised against this.”
In 1949, Meyer wrote to the Dutch agency holding the
Göring artworks to express that the Firm was releasing any
claim it had to those pieces: “I would also like to take this
opportunity to confirm that the Art Trade J. Goudstikker

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VON S AHER V . NORTON S IMON M USEUM OF ART 11
LLC waives the right to file for restoration of rights
regarding goods acquired by Goering . . . .” The
memorandum accompanying that letter showed that Meyer
was aware that he could have filed a claim to restore rights
in both the Göring and Miedl transactions, because they
would have been voidable under E100. In proceedings
before the modern Dutch Restitution Committee, Marei von
Saher conceded that “Goudstikker made a deliberate and
well-considered decision not to seek restoration of rights
with respect to the goods that had been acquired by Göring.”
By contrast, the Firm decided to pursue restitution for the
Miedl transaction, including other artworks and real estate.
Just shy of the July 1, 1951 E100 deadline, the Firm filed
with the Council a petition for restoration of rights
concerning the Miedl transaction only. In August 1952, the
Firm and the Dutch government settled the Firm’s restitution
claims.3
The Dutch Government Sold the Cranachs to
Stroganoff, Who Sold Them to the Museum
In the 1960s, Stroganoff petitioned the Dutch
government, asserting that he was the rightful owner of the
Cranachs because the Soviet government had stolen them
from him. In 1966, the parties reached an amicable
settlement in which Stroganoff bought “back” the paintings
from the Netherlands in exchange for dropping his
restitution claims.
3 The parties dispute whether the 1952 settlement released claims
involving both the Miedl and the Göring transactions. The district court
did not make a factual finding on the issue, and the answer does not affect
our resolution of this appeal.

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12 VON S AHER V. NORTON S IMON M USEUM OF ART
Through his agent, in 1971 Stroganoff sold the Cranachs
to the Museum for $800,000. The Cranachs have been on
public display since that time.
VON S AHER PURSUED R ESTITUTION FROM THE DUTCH
GOVERNMENT
In the 1990s, Marei von Saher—the only living heir of
Jacques and Desi Goudstikker—began seeking restitution
for artworks that the Firm “sold” to Göring. As part of those
efforts, von Saher filed an E100 petition for restoration of
rights in the Dutch Court of Appeals (the legal successor to
the Council for Restoration of Rights) for all paintings
acquired by Göring, including the Cranachs. The Court of
Appeals denied the petition, concluding that the Firm “made
a conscious and well considered decision to refrain from
asking for restoration of rights with respect to the Göring
transaction.” Von Saher appeared to be at a dead end.
But in 2001, the Netherlands reevaluated its
“bureaucratic” restitution process, transforming its mission
from a “purely legal approach” to “a more moral policy
approach.” In doing so, the Dutch government created a new
Restitution Committee, to advise the State Secretary of
Education, Culture and Science on restitution claims for
property that was still in the possession of the Dutch
government. Embracing the change in forum, von Saher
petitioned the State Secretary for over 200 artworks that the
Firm “sold” to Göring and that were still held by the Dutch
government. Her claim did not include the Cranachs.
After receiving a non-binding recommendation from the
Restitution Committee, the State Secretary ruled that von
Saher’s claim for the artworks in the Göring transaction had
already been “settled” in the 1950s and in the 1999 Dutch
Court of Appeals decision. The State Secretary nonetheless

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VON S AHER V . NORTON S IMON M USEUM OF ART 13
decided to return to von Saher all the paintings from the
Göring transaction still in possession of the Dutch
government. The State Secretary expressly stated that the
decision to return the other paintings did not concern the
Cranachs.
VON S AHER I
Out of options with the Dutch government, in 2007 von
Saher filed a federal diversity action against the Museum in
the Central District of California, seeking to recover the
paintings. The suit alleged state-law claims for replevin,
conversion, damages under California Penal Code § 496,
quiet title, and declaratory relief. The action alleged
timeliness under a California civil-procedure statute that
allowed the rightful owners of confiscated Holocaust-era
artwork to recover their items from museums or galleries and
set a filing deadline of December 31, 2010. Cal. Civ. Proc.
Code § 354.3(b), (c).
The district court dismissed the action, finding von
Saher’s claims untimely and concluding that California’s
special statute of limitations was unconstitutional. We
affirmed, holding the California statute unconstitutional on
field preemption grounds as the state was attempting to
engage in foreign affairs. See Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 965–68 (9th Cir.
2010) (“Von Saher I”). But we provided von Saher leave to
amend her complaint in case she could allege that she lacked
notice such that her claims were timely under California’s
generic statute of limitations for property actions. Id. at 968–
70; see Cal. Civ. Proc. Code § 338. Von Saher’s petition for
certiorari to the U.S. Supreme Court was denied. 564 U.S.
1037 (2011).

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14 VON S AHER V. NORTON S IMON M USEUM OF ART
VON S AHER II
Soon after our decision in Von Saher I, the California
legislature amended its statute of limitations for actions “for
the specific recovery of a work of fine art brought against a
museum, . . . in the case of an unlawful taking or theft . . .
within six years of the actual discovery by the claimant or
his or her agent.” Cal. Civ. Proc. Code § 338. The
legislature made the amendment retroactive and von Saher
amended her complaint accordingly.
The Museum again moved to dismiss, this time arguing
that von Saher’s claims conflicted with federal foreign
policy. The district court granted the motion. On appeal, we
reversed and remanded, over a dissent from Judge Wardlaw.
See Von Saher v. Norton Simon Museum of Art at Pasadena,
754 F.3d 712 (9th Cir. 2014) (“Von Saher II”).
The panel majority held that von Saher’s state-law
claims did not conflict with federal policy concerning Nazi-
stolen art “because the Cranachs were never subject to
postwar internal restitution proceedings in the Netherlands.”
Id. at 721. More specifically, von Saher’s complaint alleged
that “(1) Desi chose not to participate in the initial postwar
restitution process, (2) the Dutch government transferred the
Cranachs to Stroganoff before Desi or her heirs could make
another claim and (3) Stroganoff’s claim likely was not one
of internal restitution.” Id. at 723.4
The panel majority refused to afford “serious weight” to
an amicus brief filed in the Supreme Court by the U.S.
4 Importantly, the decision in Von Saher II was at the motion-to-
dismiss stage, and so von Saher’s allegations were assumed to be true.
754 F.3d at 714. As analyzed below, the record on remand does not bear
out these allegations.

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VON S AHER V . NORTON S IMON M USEUM OF ART 15
Department of State and the Office of the Solicitor General
in Von Saher I. Id. at 724. The panel noted that the brief
went “beyond explaining federal foreign policy and
appear[ed] to make factual determinations.” Id. Namely,
the brief suggested that the Cranachs had “been subject (or
potentially subject to) bona fide restitution proceedings in
the Netherlands,” which contradicted the allegations in von
Saher’s amended complaint. Id.
Although the panel posited that this was “a dispute
between private parties,” it was “mindful that the litigation
of this case may implicate the act of state doctrine.” Id. at
725. The case was remanded for further factual development
and to determine whether the doctrine applies to von Saher’s
claims. Id. at 727.
Judge Wardlaw dissented. In her view, the United
States, through the amicus brief submitted by the Solicitor
General’s Office and the State Department, had articulated
the foreign policy applicable to conflicts like this one. Id. at
728 (Wardlaw, J., dissenting). The brief conveyed that
“World War II property claims may not be litigated in U.S.
courts if the property was ‘subject’ or ‘potentially subject’ to
an adequate internal restitution process in its country of
origin.” Id. The brief further explained that the paintings at
issue in this appeal “have already been the subject of both
external and internal restitution proceedings, including
recent proceedings by the Netherlands.” Id. Those
proceedings were “bona fide,” according to the brief, and so
“their finality must be respected.” Id. Judge Wardlaw
determined that “Von Saher’s attempt to recover the
Cranachs in U.S. courts directly thwarts the central objective
of U.S. foreign policy in this area: to avoid entanglement in
ownership disputes over externally restituted property if the
victim had an adequate opportunity to recover it in the

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16 VON S AHER V. NORTON S IMON M USEUM OF ART
country of origin.” Id. at 729. Although Judge Wardlaw did
not reach the issue because she concluded the case should be
resolved on preemption grounds, she noted that the act of
state doctrine may apply. Id. at 730 n.2.
The Supreme Court denied the Museum’s certiorari
petition. 135 S. Ct. 1158 (2015).
S UMMARY JUDGMENT TO THE MUSEUM ON REMAND
On remand, after denying the Museum’s motion to
dismiss on timeliness grounds, the district court conducted
over a year of discovery and considered the parties’ cross-
motions for summary judgment. Applying Dutch law, the
district court granted summary judgment to the Museum,
concluding that:
(1) because CORVO revoked the automatic
invalidity of the Göring transaction in 1947,
that transaction was “effective” and the
Cranachs were considered to be the property
of Göring; (2) because Göring was an
“enemy” within the meaning of Royal Decree
E133, his property located in the
Netherlands, including the Cranachs,
automatically passed in ownership to the
Dutch State pursuant to Article 3 of Royal
Decree E133; (3) unless and until the Council
annulled the Göring transaction under Royal
Decree E100, the Cranachs remained the
property of the Dutch State; and (4) because
the Göring transaction was never annulled
under Royal Decree E100, the Dutch State
owned the Cranachs when it transferred the
paintings to Stroganoff in 1966.

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VON S AHER V . NORTON S IMON M USEUM OF ART 17
Hence, the Dutch government possessed good title to the
paintings when it sold them to Stroganoff, who then
conveyed good title to the Museum.
Analysis
We review de novo summary judgment rulings and
questions of foreign law, including whether to apply the act
of state doctrine. See Brunozzi v. Cable Commc’ns, Inc.,
851 F.3d 990, 995 (9th Cir. 2017); De Fontbrune v. Wofsy,
838 F.3d 992, 1000 (9th Cir. 2016); Liu v. Republic of China,
892 F.2d 1419, 1424 (9th Cir. 1989).
The act of state doctrine is a “rule of decision” requiring
that “the acts of foreign sovereigns taken within their own
jurisdictions shall be deemed valid.” W.S. Kirkpatrick Co.
v. Environ. Tectonics Corp., Int’l, 493 U.S. 400, 405, 409
(1990); see generally Born and Rutledge, International Civil
Litigation in United States Courts 751–55 (2007). “The
doctrine reflects the concern that the judiciary, by
questioning the validity of sovereign acts taken by foreign
states, may interfere with the executive branch’s conduct of
foreign policy.” Provincial Gov’t of Marinduque v. Placer
Dome, Inc., 582 F.3d 1083, 1089 (9th Cir. 2009). We apply
the doctrine only when we are “require[d] . . . to declare
invalid, and thus ineffective . . . , the official act of a foreign
sovereign.” W.S. Kirkpatrick, 493 U.S. at 405. Hence, we
apply the doctrine here, because “the relief sought” by von
Saher would necessitate our “declar[ing] invalid” at least
three “official act[s] of” the Dutch government “performed
within its own territory.” Id.

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18 VON S AHER V. NORTON S IMON M USEUM OF ART
I. VON S AHER ’S T HEORY WOULD REQUIRE THE
COURT TO I NVALIDATE O FFICIAL ACTS OF THE
DUTCH GOVERNMENT
Von Saher’s recovery hinges on whether she—not the
Museum—holds good title to the paintings. The Museum’s
defense, in turn, depends on its having received good title
from Stroganoff, who forfeited his own restitution claim to
the paintings when he bought them from the Netherlands in
1966. It is therefore a necessary condition of von Saher’s
success that the Dutch government’s conveyance of the
paintings to Stroganoff be deemed legally inoperative. For
von Saher to succeed, we would also need to disregard both
the Dutch government’s 1999 decision not to restore von
Saher’s rights in the Cranachs and its later statement that her
claim to the Cranachs had been “settled.” Because it is
“essential to” von Saher’s cause of action that these three
official actions of the Dutch government be held invalid, the
act of state doctrine applies. See Marinduque, 582 F.3d at
1085.5 We examine these three acts in turn.
A. T HE DUTCH G OVERNMENT ’S CONVEYANCE TO
S TROGANOFF
As we acknowledged in Von Saher II, the act of state
doctrine may apply to quiet title actions like von Saher’s that
would require a court to nullify a foreign nation’s
conveyances. 754 F.3d at 725–26 (citing Oetjen v. Central
Leather Co., 246 U.S. 297, 303–04 (1918); Ricaud v. Am.
Metal Co., 246 U.S. 304, 310 (1918)). What matters is
“whether the conveyance . . . constituted an official act of
5 Because the act of state doctrine provides a rule of decision that
deems valid the Stroganoff conveyance, we do not conduct a choice-of-
law analysis.

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VON S AHER V . NORTON S IMON M USEUM OF ART 19
[the] sovereign.” Von Saher II, 754 F.3d at 726. There is
little doubt that the Dutch government’s conveyance to
Stroganoff qualifies as an official act of the Netherlands.
We view the conveyance not as a one-off commercial
sale, but as the product of the Dutch government’s sovereign
internal restitution process.6 Under that process, the
Netherlands passed Royal Decrees E133, to expropriate
enemy property, and E100, to administer a system through
which Dutch nationals filed claims to restore title to lost or
looted artworks. Whatever the exact legal effect of those
decrees—and irrespective of whether the district court
correctly interpreted their meaning under Dutch law—we
cannot avoid the conclusion that the post-war Dutch system
adjudicated property rights by expropriating certain items
from the Nazis and restoring rights to dispossessed Dutch
citizens.7 No one disputes, for example, that the Firm
successfully availed itself of the post-war system by
petitioning for restoration of rights in the artworks it had sold
to Miedl.
6 The post-war governmental processes here contrast sharply with,
for example, an employee of a city museum purchasing artworks on the
open market like any art dealer could do. See Malewicz v. City of
Amsterdam, 517 F. Supp. 2d 322, 339 (D.D.C. 2007) (finding that the
act of state doctrine does not apply in such a case because “there was
nothing sovereign about the City’s acquisition of the . . . paintings, other
than that it was performed by a sovereign entity.”).
7 The Museum submitted a compendium of post-war cases in which
the Council for Restoration of Rights held that, under E133, the Dutch
government expropriated ships and artwork that Dutch nationals had sold
to the Germans during the war but were later recuperated. Although we
do not rely on these cases for their substantive holdings, they underscore
that the post-war Dutch system fixed rights in Nazi-looted property
pursuant to official governmental policy—not as purely commercial acts.

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20 VON S AHER V. NORTON S IMON M USEUM OF ART
Expropriation of private property is a uniquely sovereign
act. See, e.g., Oetjen, 246 U.S. at 303 (applying the act of
state doctrine to governmental seizures of property); U.S.
Const. amend. V. Whether or not the Netherlands effected
an expropriation of the Cranachs under Dutch law, the Dutch
government acted with authority to convey the paintings
after von Saher’s predecessors failed to file a claim under
E100. Von Saher’s expert conceded that the “Netherlands
considered itself the lawful owner of the works sold to
Goering” and “acted as the[ir] true owner.” The Dutch
government then unquestionably acted as the owner of the
paintings by agreeing to convey them to Stroganoff in
exchange for his dropping certain restitution claims. Under
the act of state doctrine, “title to the property in this case
must be determin[e]d by the result of the action taken by the
[Netherlands].” Ricaud, 246 U.S. at 309.
In Von Saher II, we reasoned that if “the Museum can
show that the Netherlands returned the [paintings] to
Stroganoff to satisfy some sort of restitution claim, that act
could ‘constitute a considered policy decision by a
government to give effect to its political and public interests
. . . and so [would be] . . . the type of sovereign activity that
would be of substantial concern to the executive branch in
its conduct of international affairs.’” 754 F.3d at 726 (citing
Clayco Petroleum Corp. v. Occidental Petroleum Corp.,
712 F.2d 404, 406–07 (9th Cir. 1983)).
But we see no reason why the Museum cannot likewise
show that the Netherlands transferred the paintings to
Stroganoff as part of a decades-long “considered policy
decision” that was inextricably linked to its rights-
restoration proceedings under the royal decrees. In order to
sell to Stroganoff, the Dutch government must have
concluded that its proceedings with respect to the Cranachs

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VON S AHER V . NORTON S IMON M USEUM OF ART 21
and von Saher’s family were final. That interpretation is
consistent with the position of von Saher’s predecessors,
who wrote to the Dutch government that they “waive[d] the
right to file for restoration of rights regarding [the
Cranachs],” and made a strategic, counseled decision not to
file a claim on the Göring transaction in order to keep the
substantial sale price.8 The Dutch government clearly
understood the Firm to mean what it said; the government
began selling unclaimed artworks shortly after the E100
filing deadline, including other works from the Göring
transaction. The record on remand is clear.
The Museum also made the showing specifically
requested in Von Saher II—that the conveyance to
Stroganoff was a sovereign act made in consideration of a
restitution claim. Stroganoff served a formal petition on the
Dutch government, asserting rightful ownership of the
Cranachs and a Rembrandt based on a claim that the Soviet
government had stolen the artworks. Stroganoff’s writ of
summons to the Dutch Ministers asserted that “he [wa]s the
owner of these paintings,” requested that the Dutch
government inform him whether it was “willing to return the
paintings,” and if not, “to inform [him] of the reasons for
[its] refusal.” At the time, the Dutch government “was not
in the business of selling national artworks [such as the
paintings] considered to be part of the Dutch cultural
patrimony.”
8 Despite that unequivocal waiver, von Saher argues that the Dutch
government nonetheless should have kept the paintings on the off chance
one of Goudstikker’s legal heirs had a change of heart seventy (or more)
years later. That position is based on wishful thinking rather than law or
fact and, of course, runs counter to the expectation that post-war
restitution systems should “achieve expeditious, just and fair outcomes.”
Von Saher II, 754 F.3d at 721 (emphasis added).

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22 VON S AHER V. NORTON S IMON M USEUM OF ART
After years of negotiations, the Netherlands and
Stroganoff decided to “settle the case by means of an
amicable arrangement”: Stroganoff offered to “buy back”
the paintings in exchange for dropping his restitution claims
for both the Cranachs and the Rembrandt. The Dutch
government entered into the agreement only after carefully
considering the public policy ramifications of doing so—the
Dutch Minister of Culture initially opposed the proposal
because “the two Cranachs are especially important for the
Dutch cultural collection.” Ultimately, however, the Dutch
Minister of Culture considered the settlement to be in “the
interest[s] of the country.” The Dutch Minister of Finance
likewise signed off on the settlement, reinforcing our
understanding that the Netherlands entered into the
agreement with the careful consideration of high-ranking
officials.
Considered holistically, the administration of E100 and
E133, the settlement with von Saher’s family, and the
conveyance of the Cranachs to Stroganoff in consideration
of his restitution claim constitute an official act of state that
gives effect to the Dutch government’s “public interests.”
Von Saher II, 754 F.3d at 726.
B. T HE DUTCH C OURT OF APPEALS DECISION
NOT TO RESTORE V ON S AHER’S RIGHTS TO
THE PAINTINGS
Von Saher’s theory also would require us to disregard
the 1999 Dutch Court of Appeals decision denying the
restoration of von Saher’s rights in the paintings. This ruling
is a second act of state authorizing the transfer of the
Cranachs to Stroganoff.
In 1998, von Saher petitioned the Dutch government to
surrender all property from the “Goudstikker collection”

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VON S AHER V . NORTON S IMON M USEUM OF ART 23
over which the State had gained control. The Dutch State
Secretary rejected the request, advising that “[i]n my
opinion, directly after the war—even under present
standards—the restoration of rights was conducted
carefully.”
Von Saher then filed an E100 petition for restoration of
rights in the Dutch Court of Appeals (the legal successor to
the Council for Restoration of Rights). Von Saher’s petition
sought relief for all artworks involved in the Göring
transaction, including the Cranachs. The Court of Appeals
denied the restoration of von Saher’s rights in the paintings,
noting that “[f]rom the documents submitted it appears that
[the Firm] at the time made a conscious and well considered
decision to refrain from asking for restoration of rights with
respect to the Goring transaction.” The Firm had access to
legal advisors and was “free . . . to have submitted an
application for [E100] restoration of rights with the
Council,” but “neglected to do so for well-founded reasons.”
The Court of Appeals also offered an opinion on the process,
concluding that “[t]he Netherlands created an adequately
guaranteed procedure for handling applications for the
restoration of rights,” which was not “in conflict with
international law.”9
Under E100, the Dutch Court of Appeals (succeeding the
Council) was the only venue through which von Saher could
have received restitution for, and restoration of rights in, the
9 During oral argument, von Saher argued for the first time that the
1999 Dutch Court of Appeals decision is inapposite because it was a
“procedural” rather than a “substantive” ruling. Whatever the import of
that distinction, it is inaccurate. The record explicitly notes that the Court
of Appeals weighed the “substantive” evidence and arguments—many
of which were presented here—and found “no serious cause to grant ex
oficio restoration of rights.”

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24 VON S AHER V. NORTON S IMON M USEUM OF ART
Cranachs. By administering the exclusive postwar remedial
scheme for artwork taken by the Nazis, and refusing von
Saher’s restoration of rights in the paintings, the Dutch Court
of Appeals carried out an official action that is particular to
sovereigns. See Clayco, 712 F.2d at 406. Even if we
consider the Court of Appeals decision to be a “foreign court
judgment” rather than an agency adjudication, such
judgments are treated as acts of state when they “g[i]ve
effect to the public interest” of the government. See In re
Philippine Nat’l Bank, 397 F.3d 768, 773 (9th Cir. 2005);
accord Restatement (Second) of Foreign Relations of the
United States § 41 cmt. d (1965)) (“A judgment of a court
may be an act of state.”). The Dutch ruling provides an
additional act of state that deems valid the transfer to
Stroganoff.
C. T HE DUTCH G OVERNMENT ’S DECISION T HAT
THE RIGHTS TO THE CRANACHS H AD B EEN
“S ETTLED”
Based on government activities after the 1999 Dutch
Court of Appeals decision, von Saher contends that the act
of state doctrine either does not apply or should operate on
her behalf.10 But rather than aid von Saher, those later
activities provide a third official act supporting the legality
of the Stroganoff transfer.
Inspired by the 1998 Washington Conference Principles
on Nazi-Confiscated Art, the Netherlands departed in 2001
from a “purely legal approach” to restitution in favor of “a
10 In her opening brief, von Saher appeared to argue that the act of
state doctrine is applicable and should deem invalid the transfer to
Stroganoff. In her reply, she shifted to arguing that the doctrine is
“inapplicable.”

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VON S AHER V . NORTON S IMON M USEUM OF ART 25
more moral policy approach.” The Dutch government
shifted its paradigm at the recommendation of the “Ekkart
Committee,” which investigated “a great number of post-war
claims” and found that one Dutch restitution agency had
been “legalistic, bureaucratic, cold and often even callous”
in conducting operations.
The new restitution policy was not an official
pronouncement that the previous Dutch policy was invalid,
however. 11 Nor was the new policy established to re-
examine old cases. Far from it, the new policy categorically
did not apply to “settled case[s],” defined as those in which
“either the claim for restitution resulted in a conscious and
deliberate settlement or the claimant expressly renounced his
claim for restitution.”
To help administer the new policy, in 2001 the Dutch
State Secretary of Education, Culture and Science
established a “Restitution Committee” charged with
considering new restitution applications. The “main task of
the Committee” was to advise the State Secretary on
“applications for the restitution of items of cultural value of
which the original owners involuntarily lost possession due
to circumstances directly related to the Nazi regime and
which are currently in the possession of the State of the
Netherlands.” (Emphasis added).
With a new system in place, in 2004 von Saher filed a
claim for 267 artworks looted by the Nazis from the
Goudstikker Gallery that were still in the possession of the
Dutch government. Crucially, the claim did not include the
Cranachs. Indeed, von Saher could not have filed a
11 Von Saher’s expert expressed “no doubt” that the prior restitution
policy was administered “in good faith.”

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26 VON S AHER V. NORTON S IMON M USEUM OF ART
successful claim on the Cranachs without the consent of the
Museum: the Restitution Committee only has authority to
hear disputes involving property not currently possessed by
the Netherlands when both the putative original owner and
the current possessor request an opinion. The Dutch State
Secretary referred the claim to the Restitution Committee,
which issued a non-binding recommendation to the
Secretary that the Dutch government return certain of the
works to von Saher.
Von Saher asserts that the Restitution Committee’s non-
binding recommendation to the Secretary was itself an act of
state—establishing that von Saher’s family “did not abandon
its rights in the artworks taken by Goring” by failing to file
a timely E100 claim. But that interpretation is incorrect.
Advisory recommendations that cannot bind the sovereign
are not acts of state. See In re Estate of Ferdinand Marcos,
Human Rights Litig., 25 F.3d 1467, 1471 (9th Cir. 1994); see
also Sharon v. Time, Inc., 599 F. Supp. 538, 545 (S.D.N.Y.
1984) (concluding that an advisory commission’s findings
are not acts of state). The Restitution Committee’s
recommendation and findings were purely advisory. Within
the recommendation, the Committee itself stated that its
“job” was “to provide advice in such a way that, if the State
Secretary accepts the advice, a situation is achieved that as
closely as possible approximates the former situation”
before the forced sales. (Emphasis added).12
The Dutch State Secretary then issued a binding decision
on von Saher’s restitution claim that accepted in part and
rejected in part the Committee’s advice. Importantly, the
12 Nonetheless, the nonbinding recommendations do not support von
Saher because they concerned only the specific paintings in her claim,
which did not include the Cranachs.

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VON S AHER V . NORTON S IMON M USEUM OF ART 27
Secretary disavowed the Committee’s findings that von
Saher’s predecessors had not waived their rights to
restoration under E100 in the 1950s: “Unlike the Restitution
Committee I am of the opinion that in this case it is a matter
of restoration of rights which has been settled.” The
Secretary concluded that the von Saher claim was “settled”
by the 1999 “final decision” of the Court of Appeals, in
which the Court found that von Saher’s predecessors had
consciously foregone their restoration rights. Because von
Saher’s case was “settled,” her claim was “not included in
the current restitution policy.”
Although von Saher’s was a settled claim that fell
outside the new policy, the Secretary nonetheless decided,
ex gratia, to return to von Saher the over 200 paintings from
the Goudstikker Collection that were still in Dutch
possession. The Secretary’s action “t[ook] into account the
facts and circumstances surrounding the involuntary loss of
property and the manner in which the matter was dealt with
in the early Fifties.”
The Dutch government’s decision to return the paintings
still in its possession did not disrupt the government’s prior,
binding acts of state concerning the Cranachs. The State
Secretary for Education, Culture and Science explicitly
stated that the Cranachs were “not a part of the claim for
which [she] decided on February 6[, 2006] to make the
return.” Accordingly, she “refrain[ed] from an opinion
regarding the two pieces of art under the restitution policy,”
and refused to “reverse[]” the prior decisions of the State
Secretary of Culture and the Dutch Court of Appeals. The
Secretary’s final determination that rights to the Cranachs
had been fully “settled” marks the third act of the Dutch state
counseling our application of the doctrine.

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28 VON S AHER V. NORTON S IMON M USEUM OF ART
II. E XCEPTIONS TO THE ACT OF S TATE DOCTRINE DO
NOT APPLY
Having concluded that the Dutch government’s transfer
of the paintings and its later decisions about the conveyance
were “sovereign acts,” we still “must determine whether any
exception to the act of state doctrine applies.” Von Saher II,
754 F.3d at 726. None does.13
A. “PURELY C OMMERCIAL ACTS ”
A plurality of the Supreme Court has recognized a
potential exception to the act of state doctrine for “purely
commercial acts”—i.e. where “foreign governments do not
exercise powers peculiar to sovereigns,” but rather “exercise
only those powers that can also be exercised by private
citizens.” Alfred Dunhill of London, Inc. v. Republic of
Cuba, 425 U.S. 682, 704–05 (1976). The Supreme Court
and our court have never decided whether such an exception
exists. See Von Saher II, 754 F.3d at 727; Clayco, 712 F.2d
at 408.
Nor must we decide in this case whether such an
exception exists. Expropriation, claims processing, and
government restitution schemes are not the province of
private citizens. Those are “sovereign policy decision[s]”
13 In addition to the two exceptions we analyze, “the State
Department also has restricted the application of th[e] doctrine, freeing
courts to ‘pass upon the validity of the acts of Nazi officials.’” Republic
of Austria v. Altmann, 541 U.S. 677, 713–14 (2004) (Breyer, J.,
concurring) (quoting Bernstein v. N.V. Nederlandsche-Amerikaansche
Stoomvaart-Maatschappij, 210 F.2d 375, 375–76 (2d Cir. 1954) (per
curiam)). However, we do not “pass upon the validity of the acts of Nazi
officials”; rather, we “pass upon the validity of the acts of” the Dutch
government.

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VON S AHER V . NORTON S IMON M USEUM OF ART 29
befitting sovereign acts. See Clayco, 712 F.2d at 406.
Because the Dutch government’s administration of E100 and
E133 and its settlement of Stroganoff’s restitution claim are
not “purely commercial acts,” we do not decide whether
such an exception exists. See id. at 408.
B. T HE “S ECOND H ICKENLOOPER AMENDMENT ”
The eponymous “Second Hickenlooper Amendment”
restricts application of the act of state doctrine, “but only in
respect to ‘a confiscation or other taking after January 1,
1959.’” Republic of Austria v. Altmann, 541 U.S. 677, 713
(2004) (Scalia, J., concurring) (citing 22 U.S.C.
§ 2370(e)(2)). In Von Saher II, we floated that although the
Dutch government kept possession of the paintings after von
Saher’s predecessors failed to file a claim by 1951, the Dutch
government did not transfer the paintings to Stroganoff until
1966, a conveyance that “may constitute a taking or
confiscation.” 754 F.3d at 727. Yet as the record illustrates,
the Dutch government did not take or confiscate anything
from von Saher’s family in 1966; the family had long since
“waive[d] the right to file for restoration of rights” in order
to keep the substantial sale price. Any taking, therefore,
occurred before the Second Hickenlooper Amendment
became effective.
Further, the Amendment bars application of the act of
state doctrine only when the governmental action violates
“principles of international law.” 22 U.S.C. § 2370(e)(2).
As von Saher’s expert recognized, “international law
respects the law as it stood at the time when the decisions
were taken.” See United Nations Int’l Law Comm’n, Draft
Articles on Responsibility of States for Internationally
Wrongful Acts, With Commentaries, art. 13, U.N. Doc.
A/56/10 (2001) (“An act of a State does not constitute a
breach of an international obligation unless the State is

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30 VON S AHER V. NORTON S IMON M USEUM OF ART
bound by the obligation in question at the time the act
occurs.”).
When the Dutch government administered E133 and
E100, the United States and other Allies imposed claims-
filing deadlines for property taken by the Nazis in occupied
German zones. Under these schemes, prospective owners
who opted not to file a claim before the deadline were treated
as having forfeited their rights to the property. For example,
the Court of Restitution Appeals noted that a deadline set in
Military Law 59 recognized that “it was imperative to fix a
date with finality on which the legal rights of all parties,
whether they be individual claimants or successor
organizations could be ascertained.” Advisory Opinion No.
1, 1 Court of Restitution Appeals Reports 489, 492 (Aug. 4,
1950). The Court held that by not filing a timely claim,
“[t]he claimant by reason of his default lost his right to
restitution under the [provision] when the vesting of the
claim in the successor organization took place. He is forever
barred from making any claim for the restitution of such
property.” Id.14 The Dutch system clearly aligned with
contemporaneous restitution schemes. Further, the
forfeiture by von Saher’s predecessors was neither
accidental nor ill informed—on the advice of counsel, the
family affirmatively chose not to pursue any restoration of
rights.
Because the Dutch government did not “confiscate” the
paintings from von Saher’s family after 1959, and because
14 Von Saher acknowledges that Military Law 59 transferred
unclaimed property to the Jewish Restitution Successor Organization, a
charitable group, and that the Organization sold that property in order to
raise money for survivors, but “only after the deadline for claims had
expired.”

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VON S AHER V . NORTON S IMON M USEUM OF ART 31
the conveyance to Stroganoff did not violate international
law, the Second Hickenlooper Amendment poses no
obstacle to the application of the act of state doctrine.
III. T HE POLICIES UNDERLYING THE A CT OF S TATE
DOCTRINE S UPPORT I TS APPLICATION H ERE
Even where “the validity of the act of a foreign sovereign
within its own territory is called into question, the policies
underlying the act of state doctrine may not justify its
application.” W.S. Kirkpatrick, 493 U.S. at 409 (citing
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428
(1964)). The Supreme Court laid out three such policies in
Sabbatino:
[1][T]he greater the degree of codification or
consensus concerning a particular area of
international law, the more appropriate it is
for the judiciary to render decisions regarding
it . . . . [2][T]he less important the
implications of an issue are for our foreign
relations, the weaker the justification for
exclusivity in the political branches. [3]The
balance of relevant considerations may also
be shifted if the government which
perpetrated the challenged act of state is no
longer in existence.
376 U.S. at 428; see also W.S. Kirkpatrick, 493 U.S. at 409.
All three of these policies support invocation of the
doctrine here. Notably, no one has identified an
international consensus regarding the invalidity of the Dutch
post-war restitution procedures. If anything, the U.S. State
Department and Office of the Solicitor General expressed in
their amicus brief in Von Saher I that post-war restitution

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32 VON S AHER V. NORTON S IMON M USEUM OF ART
proceedings in the Netherlands were “bona fide.” See Von
Saher II, 754 F.3d at 729–30 (Wardlaw, J., dissenting).
Second, the State Department and Solicitor General’s Office
confirmed in their brief that upholding the Dutch
government’s actions is important for U.S. foreign policy:
When a foreign nation, like the Netherlands
here, has conducted bona fide post-war
internal restitution proceedings following the
return of Nazi-confiscated art to that nation
under the external restitution policy, the
United States has a substantial interest in
respecting the outcome of the nation’s
proceedings.
(Emphasis added).15 This position makes practical sense.
Reaching into the Dutch government’s post-war restitution
system would require making sensitive political judgments
that would undermine international comity. See W.S.
Kirkpatrick, 493 U.S. at 408 (underscoring that
“international comity, respect for the sovereignty of foreign
nations on their own territory, and the avoidance of
15 In Von Saher II, we concluded that von Saher’s claims against the
Museum “do not conflict with foreign policy,” and that this case
presents, “instead, a dispute between private parties.” 754 F.3d at 724.
In doing so, we did not give the amicus brief “serious weight.” Id.
Although Von Saher II is precedential authority, that decision left open
whether the act of state doctrine applies. Id. at 725–27. We ought not
exclude the State Department’s views when considering the doctrine’s
application, especially when assessing the degree to which our decision
will affect foreign policy. We acknowledge that we are not bound by
those views. Cf. Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co.,
138 S. Ct. 1865, 1869 (2018) (holding that courts “should accord
respectful consideration to” a foreign government’s amicus brief, but are
“not bound to accord conclusive effect to the foreign government’s
statements”).

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VON S AHER V . NORTON S IMON M USEUM OF ART 33
embarrassment to the Executive Branch in its conduct of
foreign relations” are policies behind the doctrine). For
example, von Saher asks us to conclude that filing an E100
claim for the Cranachs in the 1950s would have been
“futile.” So deciding would demand a judgment that the
post-war Dutch system was incapable of functioning, a
proposition that has not been proven here. Finally, we are
dealing with a government that has been in continuous
existence since the relevant acts of state. As noted, the
decisions of the Dutch Court of Appeals and the State
Secretary that deemed the Cranachs a “settled” question are
quite recent. Von Saher asks us to do what the Dutch
government refused to do in the 1999 Court of Appeals
decision—restore her rights to the Cranachs. Second-
guessing the Dutch government would violate our
“commitment to respect the finality of ‘appropriate actions’
taken by foreign nations to facilitate the internal restitution
of plundered art.” Von Saher II, 754 F.3d at 721.
Our judiciary created the act of state doctrine for cases
like this one. In applying it, we presume the validity of the
Dutch government’s sensitive policy judgments and avoid
embroiling our domestic courts in re-litigating long-resolved
matters entangled with foreign affairs. Without question, the
Nazi plunder of artwork was a moral atrocity that compels
an appropriate governmental response. But the record on
remand reveals an official conveyance from the Dutch
government to Stroganoff thrice “settled” by Dutch
authorities. For all the reasons the doctrine exists, we

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34 VON S AHER V. NORTON S IMON M USEUM OF ART
decline the invitation to invalidate the official actions of the
Netherlands.16
AFFIRMED.
WARDLAW, Circuit Judge, concurring:
This case should not have been litigated through the
summary judgment stage. The district court correctly
dismissed this case on preemption grounds in March 2012.
Those grounds did not require any further factual
development of the record, and were valid even taking all of
the facts in the light most favorable to Von Saher. So here
we are in 2018, over a decade from the date Von Saher filed
her federal action, reaching an issue we need not have
reached, to finally decide that the Cranachs, which have
hung in the Norton Simon Museum nearly fifty years, may
remain there.
In my 2014 dissenting opinion (attached), I noted that
further adjudication of the Netherlands proceedings may
implicate the act of state doctrine because “‘the outcome’ of
this inquiry ‘turns upon[] the effect of official action by a
foreign sovereign.’” Von Saher v. Norton Simon Museum of
Art at Pasadena, 754 F.3d 712, 730 n.2 (9th Cir. 2014)
(Wardlaw, J., dissenting) (citing W.S. Kirkpatrick & Co. v.
Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990)).
Though I did not reach the act of state doctrine, the prior
panel could have because all of the historical official acts of
16 We thank the parties’ counsel and amici curiae for submitting
extensive and informative briefs detailing the many factual and
international law intricacies in this appeal.

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VON S AHER V . NORTON S IMON M USEUM OF ART 35
the Netherlands were in the record at the time of the motion
to dismiss. And, because I agree that “there is little doubt
that the Dutch government’s conveyance to Stroganoff
qualifies as an official act of the Netherlands,” Majority Op.
at 19, I concur.

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36 VON S AHER V. NORTON S IMON M USEUM OF ART
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Footnotes
1 The dissent concludes that “the Cranachs were in fact subject to bona fide internal restitution proceedings in the
Netherlands in 1998–99 and 2004–06.” Dissent at 731; see also Dissent at 732 (“Von Saher did seek ‘restitution’ of the
Cranachs, and her filing of the claims and the official disposition of those claims do constitute proceedings.”). We cannot
agree. In both 1998 and 2004, Von Saher sought the return of all the Goudstikker artworks the Dutch government had in
its possession. This necessarily excludes the Cranachs because the Netherlands had divested itself of the panels many
decades earlier. We therefore cannot conclude that Von Saher's 1998 and 2004 claims included the Cranachs.
1 The majority correctly explains the U.S. government's position that external restitution alone is not “sufficient of its own
force” to bar civil litigation in U.S. courts.
2 I would not reach the question of whether Von Saher's claims are barred by the act of state doctrine because I would
affirm the district court's dismissal of the complaint on the basis that her claims are preempted. I note, however, that
adjudicating whether the Netherlands' 1951 proceedings were bona fide may implicate the act of state doctrine because
“the outcome” of this inquiry “turns upon[ ] the effect of official action by a foreign sovereign.” W.S. Kirkpatrick & Co. v.
Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 406, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990).
3 In 1961, George Stroganoff–Scherbatoff, heir to the Russian Stroganoff dynasty, filed a restitution claim for the Cranachs
in the Netherlands. He asserted that the Cranachs had been wrongfully seized from his family by Soviet authorities and
then unlawfully auctioned off to the Goudstikkers. The Dutch government transferred the Cranachs to Stroganoff in 1966.
Von Saher alleges that these were not restitution proceedings, but simply a sale, and that the Stroganoffs never owned
the Cranachs. In 1971, Stroganoff sold the Cranachs to the Norton Simon Art Foundation.
4 The majority attempts to draw an unworkable distinction between “explaining federal foreign policy” and “mak[ing] factual
determinations.” Our foreign policy often relies on factual assumptions inseparable from the policy itself. For instance,
the federal foreign policy that “Iran's pursuit of nuclear weapons is unacceptable” entails a factual assumption that Iran is
pursuing nuclear weapons. U.S. Strategic Objectives Towards Iran: Hearing Before the S. Comm. on Foreign Relations,
112th Cong. 7 (2011) (statement of Wendy R. Sherman, Under Secretary of State for Political Affairs). Here, the federal
foreign policy that the finality of the Netherlands' prior restitution proceedings in this case should be respected entails a
factual assumption that those proceedings occurred. Von Saher's attempt to plead to the contrary simply highlights why
entertaining her claims would conflict with federal policy.
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.

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