Cassirer v. Thyssen-Bornemisza Collection Foundation

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 107–117
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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107
Syllabus
CASSIRER et al. v. THYSSEN-BORNEMISZA
COL
LECTION FOUNDATION
certiorari to the united states court of appeals for
the ninth circuit
No. 20–1566. Argued January 18, 2022—Decided April 21, 2022
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. § 1602
et seq., governs whether a foreign state or instrumentality is amenable
to suit in an American court. The question in this case is what choice-
of-law rule a court should use to determine the applicable substantive
law in an FSIA suit raising non-federal claims. That issue arises in a
dispute concerning the ownership of an Impressionist painting: Camille
Pissarro's Rue Saint-Honoré in the Afternoon, Effect of Rain. Lilly
Cassirer inherited the painting, which a family member had purchased
from Pissarro's agent in 1900. After the Nazis came to power in Ger-
many, Lilly surrendered Rue Saint-Honoré to them to obtain an exit
visa. Lilly and her grandson, Claude, eventually ended up in the
United States. The family's post-war search for Rue Saint-Honoré was
unsuccessful. In the early 1990s, the painting was purchased by the
Thyssen-Bornemisza Collection Foundation, an entity created and con-
trolled by the Kingdom of Spain. Claude learned several years later
that Rue Saint-Honoré was listed in a catalogue of the Foundation's
museum.
Claude sued the Foundation, asserting various property-law claims
based on the allegation that he owned Rue Saint-Honoré and was enti-
tled to its return. Because the Foundation is an “instrumentality” of
the Kingdom of Spain, the complaint invoked the FSIA to establish the
court's jurisdiction. See § 1603(b). The FSIA provides foreign states
and their instrumentalities with immunity from suit unless the claim
falls within a specifed exception. See §§ 1605–1607. The courts below
held that the Nazi confscation of Rue Saint-Honoré brought Claude's
suit against the Foundation within the FSIA exception for expropriated
property. See § 1605(a)(3). That meant the Cassirer family's suit could
go forward. To determine what property law governed the dispute,
the courts below had to apply a choice-of-law rule. The Cassirer plain-
tiffs urged the use of California's choice-of-law rule; the Foundation ad-
vocated a rule based in federal common law. The courts below picked
the federal option. That option, they then held, commanded use of the
property law of Spain, not California. Applying Spanish law, the courts
determined that the Foundation was the rightful owner. This Court

108 CASSIRER
v. THYSSEN-BORNEMISZA COLLECTION
FOUNDATION
Syllabus
granted certiorari to resolve a confict among the Courts of Appeals as
to
what choice-of-law rule a court should apply in an FSIA case raising
non-federal claims.
Held: In an FSIA suit raising non-federal claims against a foreign state
or instrumentality, a court should determine the substantive law by
using the same choice-of-law rule applicable in a similar suit against a
private party. Here, that means applying the forum State's choice-of-
law rule, not a rule deriving from federal common law.
The FSIA provides a baseline principle of foreign sovereign immunity
from civil actions unless a statutory exception applies (including the
expropriation exception found to apply here). See §§ 1604–1607. Yet
the FSIA was never “intended to affect the substantive law determin-
ing the liability of a foreign state or instrumentality” deemed amenable
to suit. First Nat. City Bank v. Banco Para el Comercio Exterior
de Cuba, 462 U. S. 611, 620. To the contrary, Section 1606 of the stat-
ute provides: “As to any claim for relief with respect to which a for-
eign state is not entitled to immunity under [the FSIA], the foreign
state shall be liable in the same manner and to the same extent as
a private individual under like circumstances.” When a foreign
state is not immune from suit, it is subject to the same rules of liabil-
ity (the same substantive law) as a private party. See id., at 622,
n. 11.
Section 1606 dictates the selection of a choice-of-law rule: It must
mirror the rule that would apply in a similar suit between private par-
ties. Only the same choice-of-law rule can guarantee use of the same
substantive law—and thus guarantee the same liability. Consider two
suits seeking recovery of a painting: one suit against a foreign-state-
controlled museum (as here), the other against a private museum. If
the choice-of-law rules in the two suits differed, so might the substan-
tive law chosen. And if the substantive law differed, so might the suits'
outcomes. Contrary to Section 1606, the two museums would not be
“liable to the same manner and to the same extent.”
In this case, Section 1606 requires the use of California's choice-of-law
rule—because that is the rule a court would use in comparable private
litigation. Consider the just-hypothesized suit against a private mu-
seum, brought as this case was in California and asserting non-federal
claims. If the private suit were fled in state court, California's choice-
of-law rule would govern. And if the private suit were fled in federal
court, the same would be true, because a federal court sitting in diver-
sity borrows the forum State's choice-of-law rule. See Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U. S. 487, 496. If California's choice-of-law
rule applies in the private-museum suit, it must also apply in the suit
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109
Opinion of the Court
here, against the Foundation. That is the only way to ensure—as Sec-
ti
on 1606 demands—that the Foundation, although a Spanish instrumen-
tality, will be liable in the same way as a private party.
Even absent the clarity of Section 1606, the Court would likely reach
the same result. Scant justifcation exists for federal common lawmak-
ing in this context. Judicial creation of federal common law to displace
state-created rules must be “necessary to protect uniquely federal inter-
ests.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630,
640. While foreign relations is an interest of that kind, here even the
Federal Government disclaims any necessity for a federal choice-of-law
rule in FSIA suits raising non-federal claims. Pp. 113–117.
824 Fed. Appx. 452, vacated and remanded.
Kagan, J., delivered the opinion for a unanimous Court.
David Boies argued the cause for petitioners. With him
on the briefs were David A. Barrett, Stephen N. Zack, An-
drew S. Brenner, Scott E. Gant, Samuel J. Dubbin, and
Laura W. Brill.
Masha G. Hansford argued the cause for the United States
as amicus curiae supporting petitioners. With her on the
brief were Acting Solicitor General Fletcher, Acting Assist-
ant Attorney General Boynton, Deputy Solicitor General
Kneedler, Sharon Swingle, and Lewis S. Yelin.
Thaddeus J. Stauber argued the cause for respondent.
With him on the brief was Sarah Erickson André.*
Justice Kagan delivered the opinion of the Court.
Under the Foreign Sovereign Immunities Act of 1976
(FSIA), 28 U. S. C. § 1602 et seq., a foreign state or instru-
*Charles J. Cooper and P. Davis Cooper fled a brief for Professors of
Law as amici curiae urging reversal.
Briefs of amici curiae were fled for B'nai B'rith International et al. by
Edward McGlynn Gaffney and Jennifer A. Kreder; for Comunidad Judía
de Madrid et al. by Bernardo M. Cremades Román and Patrick T. Byrne;
and for The 1939 Society et al. by Benjamin G. Shatz, Stanley A. Gold-
man, and Stanley W. Levy.
Nicholas M. O'Donnell and Mark B. Feldman fled a brief for Mr. Feld-
man, pro se, as amicus curiae urging vacatur.
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110 CASSIRER
v. THYSSEN-BORNEMISZA COLLECTION
FOUNDATION
Opinion of the Court
mentality is amenable in specifed circumstances to suit in
an
American court. In this case, the plaintiffs brought such
a suit to recover expropriated property. The question pre-
sented is what choice-of-law rule the court should use to
determine the applicable substantive law. The answer is:
whatever choice-of-law rule the court would use if the de-
fendant were not a foreign-state actor, but instead a private
party. Here, that means applying the forum State's choice-
of-law rule, not a rule deriving from federal common law.
I
Although the legal issue before us is prosaic, the case's
subject matter and background are anything but. At issue
is the ownership of an Impressionist painting depicting a
Paris streetscape: Camille Pissarro's Rue Saint-Honoré in
the Afternoon, Effect of Rain (shown in this opinion's appen-
dix). Pissarro's agent sold the painting in 1900 to Paul Cas-
sirer, a member of a prominent German Jewish family own-
ing an art gallery and publishing house. Some quarter
century later, Lilly Cassirer inherited the painting and dis-
played it in her Berlin home (as also pictured in the appen-
dix). But in 1933, the Nazis came to power. After years of
intensifying persecution of German Jews, Lilly decided in
1939 that she had to do anything necessary to escape the
country. To obtain an exit visa to England, where her
grandson Claude Cassirer had already relocated, she surren-
dered the painting to the Nazis. The underlying question
in this case—which this opinion will not resolve—is whether
the Cassirer family can get the painting back.
The post-war search for Rue Saint-Honoré was a long one.
Lilly and Claude, who both eventually ended up in the
United States, had no success tracking down the painting.
After being legally declared the rightful owner, Lilly agreed
in 1958 to accept compensation from the German Federal Re-
public—about $250,000 in today's dollars. (The painting is
now thought to be worth tens of millions.) In fact, Rue
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111
Opinion of the Court
Saint-Honoré was nearby: Like the Cassirers, the painting
had
also arrived in the United States after the war, and sat
in a private collection in St. Louis from 1952 to 1976. In
that year, the Baron Hans Heinrich Thyssen-Bornemisza (de-
scended from the founder of a German steel empire) pur-
chased the painting and brought it back to Europe. Rue
Saint-Honoré hung at his residence in Switzerland until the
early 1990s. At that time, the Baron sold much of his art
collection, including Rue Saint-Honoré, to an entity the
Kingdom of Spain created and controlled, called the Thyssen-
Bornemisza Collection Foundation. In addition to fnancing
the $300 million-plus purchase, the Spanish Government pro-
vided the Foundation with a palace in Madrid to serve as a
museum for the collection. The museum, as museums do,
published a catalogue of its holdings. An acquaintance of
Claude's saw the catalogue and made the connection, telling
him in 1999 where Rue Saint-Honoré was now located.
(Lilly had by then long since died, with Claude as her sole
heir.)
After informal efforts to recover the painting failed,
Claude sued the Foundation in federal court in the Central
District of California, near where he then lived. His com-
plaint asserted various property-law claims, all alleging that
he owned Rue Saint-Honoré and was entitled to its return.
And because the Foundation is an “instrumentality” of the
Kingdom of Spain, the complaint invoked the FSIA to estab-
lish the court's jurisdiction. See § 1603(b) (describing an in-
strumentality as a legally separate but state-controlled en-
tity). The FSIA governs whether a foreign state or
instrumentality is amenable to suit in an American court.
It provides the sovereign actor with immunity unless the
claim against it falls within a specifed exception. See
§§ 1605–1607. The complaint here asserted that the stat-
ute's expropriation exception applied. That exception re-
moves immunity for cases involving “rights in property
taken in violation of international law.” § 1605(a)(3). At a
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FOUNDATION
Opinion of the Court
prior stage of this litigation, the courts below held that the
Nazi
confscation of Rue Saint-Honoré brought Claude's suit
against the Foundation within the expropriation exception.
See 461 F. Supp. 2d 1157, 1176–1177 (CD Cal. 2006), aff 'd, 616
F. 3d 1019, 1037 (CA9 2010) (en banc), cert. denied, 564 U. S.
1037 (2011). That determination, which is no longer at issue,
meant that the suit could go forward. (Claude, though,
would not live to see anything further; he passed away in
2010, and his heirs became the plaintiffs.)
1
But go forward pursuant to what law? The courts had
to decide whose property law (Spain's? California's?) should
govern the suit, and thus determine the painting 's rightful
owner. Resolving that question required application of a
choice-of-law rule—a means of selecting which jurisdiction's
law governs the determination of liability. Yet there an-
other issue lurked. For the parties contested which choice-
of-law rule should apply—serving up, so to speak, a choice
of choice-of-law principles. The Cassirer plaintiffs urged
the use of California's choice-of-law rule; the defendant Foun-
dation advocated a rule based in federal common law. The
courts below, relying on a minimally reasoned Ninth Circuit
precedent, picked the federal option. See 153 F. Supp. 3d
1148, 1154 (CD Cal. 2015), aff 'd, 862 F. 3d 951, 961 (CA9 2017),
cert. denied, 584 U. S. ––– (2018). That federal choice-of-law
rule, they further held, commanded the use of Spanish (not
Californian) property law to resolve the ownership issue.
See 153 F. Supp. 3d, at 1155, aff 'd, 862 F. 3d, at 963. Finally,
the courts below determined after a trial that under Spanish
law the Foundation was the rightful owner, because it pur-
chased Rue Saint-Honoré without knowing the painting was
stolen and had held it long enough to gain title through pos-
session. See No. 05–cv–03459 (CD Cal., Apr. 30, 2019), ECF
1
Claude's children, David and Ava Cassirer, along with the Jewish Fed-
eration of San Diego County, succeeded to his claims. Some years later,
Ava also died; her estate is now a substitute plaintiff.
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Opinion of the Court
Doc. 621, pp. 26–30, aff 'd, 824 Fed. Appx. 452, 454–455
(
CA9 2020).
The Cassirers sought our review, limited to a single issue:
whether a court in an FSIA case raising non-federal claims
(relating to property, torts, contracts, and so forth) should
apply the forum State's choice-of-law rule, or instead use a
federal one. We granted certiorari, 594 U. S. ––– (2021), be-
cause that question has generated a split in the Courts of
Appeals. The Ninth Circuit stands alone in using a federal
choice-of-law rule to pick the applicable substantive law. All
other Courts of Appeals to have addressed the issue apply
the choice-of-law rule of the forum State.
2
We agree with
that more common approach, and now vacate the judgment
below.
II
The FSIA, as indicated above, creates a uniform body of
federal law to govern the amenability of foreign states and
their instrumentalities to suit in the United States. See
supra, at 111. The statute frst lays down a baseline princi-
ple of foreign sovereign immunity from civil actions. See
§ 1604. It then lists a series of exceptions from that princi-
ple (including the expropriation exception found to apply
here). See §§ 1605–1607; supra, at 111. The result is to
spell out, as a matter of federal law, the suits against foreign
sovereigns that American courts do, and do not, have power
to decide.
Yet the FSIA was never “intended to affect the substan-
tive law determining the liability of a foreign state or instru-
mentality” deemed amenable to suit. First Nat. City Bank
v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611,
2
See Barkanic v. General Admin. of Civ. Aviation of People's Republic
of China, 923 F. 2d 957, 959–961 (CA2 1991); Northrop Grumman Ship
Systems, Inc. v. Ministry of Defense of Republic of Venezuela, 575 F. 3d
491, 498 (CA5 2009); O'Bryan v. Holy See, 556 F. 3d 361, 381, n. 8 (CA6),
cert. denied, 558 U. S. 819 (2009); Oveissi v. Islamic Republic of Iran, 573
F. 3d 835, 841 (CADC 2009).
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FOUNDATION
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620 (1983). To the contrary, Section 1606 of the statute
prov
ides:
“As to any claim for relief with respect to which a
foreign state is not entitled to immunity under [the
FSIA], the foreign state shall be liable in the same man-
ner and to the same extent as a private individual under
like circumstances.”
So when a foreign state is not immune from suit, it is subject
to the same rules of liability as a private party. Which is
just to say that the substantive law applying to the latter
also applies to the former. See First Nat. City Bank, 462
U. S., at 622, n. 11. As one court put the point, Section 1606
directs a “pass-through” to the substantive law that would
govern a similar suit between private individuals. Oveissi
v. Islamic Republic of Iran, 573 F. 3d 835, 841 (CADC 2009).
The provision thus ensures that a foreign state, if found ineli-
gible for immunity, must answer for its conduct just as any
other actor would.
And in so doing, Section 1606 also dictates the selection of
a choice-of-law rule: It, too, must mirror the rule that would
apply in a similar suit between private parties. For only
the same choice-of-law rule can guarantee use of the same
substantive law—and thus (see above) guarantee the same
liability. See Barkanic v. General Admin. of Civ. Aviation
of People's Republic of China, 923 F. 2d 957, 959–960 (CA2
1991) (“[T]he same choice of law analysis” is needed to
“apply[ ] identical substantive laws,” and so to “ensure iden-
tity of liability” between a foreign state and a private indi-
vidual). Consider two suits seeking recovery of a paint-
ing—one suit against a foreign-state-controlled museum (as
here), the other against a private museum. If the choice-of-
law rules in the two suits differed, so might the substantive
law in fact chosen. And if the substantive law differed, so
might the suits' outcomes. In one case, say, the plaintiff
would recover the art, and in the other not. Contrary to
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Section 1606, the two museums would not be “liable in the
same
manner and to the same extent.”
In this case, then, Section 1606 requires the use of Califor-
nia's choice-of-law rule—because that is the rule a court
would use in comparable private litigation. Consider the
just-hypothesized suit against a private museum for return
of a piece of art, brought as this case was in California. The
claims asserted (again, as in this case) turn only on state or
foreign property law, with no substantive federal component.
If the private suit were fled in state court, California's
choice-of-law rule would of course govern. And if the pri-
vate suit were fled in federal court, under diversity-of-
citizenship jurisdiction, the same would be true. According
to long-settled precedent, a federal court sitting in diversity
borrows the forum State's choice-of-law rule. See Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). So
the private-museum suit would begin with the application
of California's choice-of-law rule, to decide on the governing
substantive law. And if that choice-of-law rule applies in
the private-museum suit, so too it must apply in the suit
here, against the Foundation. That is the only way to en-
sure—as Section 1606 demands—that the Foundation, al-
though a Spanish instrumentality, will be liable in the same
way as a private party.
In choosing instead to apply a federal choice-of-law rule,
the courts below could well have created a mismatch be-
tween the Foundation's liability and a private defendant's.
As described earlier, those courts found that the federal rule
commanded the use of Spanish property law to determine
Rue Saint-Honoré's rightful owner. See supra, at 112.
Spanish law (as the courts below understood it) made every-
thing depend on whether, at the time of acquisition, the
Foundation knew the painting was stolen: If the Foundation
did not know—as the courts in fact found—then it owned the
painting by virtue of possession. See ECF Doc. 621, at 26–
30, aff 'd, 824 Fed. Appx., at 454–455. But now consider the
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116 CASSIRER
v. THYSSEN-BORNEMISZA COLLECTION
FOUNDATION
Opinion of the Court
possible result if the courts below had instead applied Cali-
for
nia's choice-of-law rule, as they would have done in a pri-
vate suit. The Cassirer plaintiffs contend that the Califor-
nia rule would lead to the application of California property
law. See Brief for Petitioners 13. And they argue that
under California property law, even a good-faith purchaser
of stolen property cannot prevail against the rightful pre-
theft owner. See ibid. We do not today decide those ques-
tions; they remain in the hands of the lower courts. But if
the Cassirers are right, the use of a federal choice-of-law rule
in the courts below stopped Section 1606 from working: That
rule led to the Foundation keeping the painting when a pri-
vate museum would have had to give it back.
And even were Section 1606 not so clear, we would likely
reach the same result, because we see scant justifcation for
federal common lawmaking in this context. Judicial cre-
ation of federal common law to displace state-created rules
must be “necessary to protect uniquely federal interests.”
Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S.
630, 640 (1981). Foreign relations is of course an interest of
that kind. But even the Federal Government, participating
here in support of the Cassirers' position, disclaims any ne-
cessity for a federal choice-of-law rule in FSIA suits raising
non-federal claims. See Brief for United States as Amicus
Curiae 9, 20–23. As the Government notes, such FSIA
suits arise only when a foreign state has lost its broad immu-
nity and become subject to standard-fare legal claims involv-
ing property, contract, or the like. See id., at 9. No one
would think federal law displaces the substantive rule of de-
cision in those suits; and we see no greater warrant for fed-
eral law to supplant the otherwise applicable choice-of-law
rule. See id., at 21 (State choice-of-law rules do not “ordi-
narily pose a greater threat to foreign relations than” state-
law principles determining “the rights and liabilities of the
parties”). Courts outside the Ninth Circuit have long ap-
plied state choice-of-law rules in FSIA suits. See supra, at
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113, and n. 2. Yet the Government says it knows of no case
i
n which that practice has created foreign relations concerns.
See Tr. of Oral Arg. 20–21.
3
So the Ninth Circuit's use of a
federal choice-of-law rule in FSIA cases has been a solution
in search of a problem, rejecting without any reason the
usual role of state law.
***
The path of our decision has been as short as the hunt for
Rue Saint-Honoré was long; our ruling is as simple as the
confict over its rightful owner has been vexed. A foreign
state or instrumentality in an FSIA suit is liable just as a
private party would be. See § 1606. That means the stand-
ard choice-of-law rule must apply. In a property-law dis-
pute like this one, that standard rule is the forum State's
(here, California's)—not any deriving from federal common
law.
Accordingly, the judgment of the Court of Appeals for the
Ninth Circuit is vacated, and the case is remanded for fur-
ther proceedings consistent with this opinion.
It is so ordered.
3
Were such an unusual case to occur, the Government states that it
would be “best addressed by applying limits on the application of state
law derived from the Constitution, applicable treaties or statutes, interna-
tional comity, the Act of State doctrine, or other sources refecting dis-
tinctly federal interests—rather than displacing state choice-of-law rules
across the board.” Brief for United States as Amicus Curiae 21; see Tr.
of Oral Arg. 20–23, 25–26. We express no view on whether or when im-
posing such limits on state law would be proper.

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None