No.

20-1566

In the
Supreme Court of the United States

DAVID CASSIRER, et al.,

Petitioners,
v.
THYSSEN-BORNEMISZA
COLLECTION FOUNDATION,
Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF FOR PETITIONERS

Scott E. Gant David Boies
Boies Schiller Flexner Llp Counsel of Record
1401 New York Avenue, NW Boies Schiller Flexner LLP
Washington, DC 20005 333 Main Street
(202) 237-2727 Armonk, New York 10504
(914) 749-8200
Samuel J. Dubbin, P.A. [email protected]
Dubbin & Kravetz Llp
1200 Anastasia Avenue David A. Barrett
Suite 300 Boies Schiller Flexner LLP
Coral Gables, Florida 33134 55 Hudson Yards, 20th Floor
(305) 371-4700 New York, New York 10001
(212) 446-2300
Laura W. Brill
Nicholas Daum Stephen N. Zack
Kendall Brill & Kelly Llp A ndrew S. Brenner
10100 Santa Monica Boulevard Rossana Baeza
Suite 1725 Boies Schiller Flexner Llp
Los Angeles, California 90067 100 SE Second Street
(310) 556-2700 Suite 2800
Miami, Florida 33131
(305) 539-8400
Attorneys for Petitioners
307924
 i

QUESTION PRESENTED
Whether a federal court hearing state law claims
brought under the FSIA must apply the forum state’s
choice of law rules to determine what substantive law
governs the claims at issue, or whether it may apply
federal common law.
 ii

PARTIES TO THE PROCEEDING

Petitioners are David Cassirer, the Estate of Ava

Cassirer, and the Jewish Federation of San Diego
County, the plaintiffs below.

Respondent is the Thyssen-Bornemisza

Collection Foundation (“TBC”), an agency or
instrumentality of the Kingdom of Spain, and the
defendant below.
 iii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ......................... ii

TABLE OF AUTHORITIES .................................... v

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY PROVISIONS .................................. 1

STATEMENT OF THE CASE ................................ 2

A. Factual Background .......................................... 2

B. Procedural History ............................................ 6

SUMMARY OF ARGUMENT................................ 18

ARGUMENT .......................................................... 19

I. The Language of Section 1606 of the FSIA

Manifests Congress’s Intent to Prescribe
State Law Choice of Law Rules in FSIA
Cases Asserting State Law Claims ................. 19
 iv

II. Any Ambiguity Should Be Resolved in

Favor of Applying State Choice of Law .......... 22

A. Congress Is Presumed to Legislate

Aware of This Court’s Decisions,
Including Its Limitations on the
Creation of Federal Common Law ........... 22

B. Congress Enacted the FSIA Subject to

the Rules of Decision Act .......................... 25

C. The Absence of Developed, Relevant

Federal Common Law Further
Reinforces That Congress Intended
State Law to Apply ................................... 26

D. Courts Should Not Presume That

Congress Intended to Displace State
Choice of Law Rules.................................. 29

E. Federalism and the Doctrine of

Constitutional Avoidance Further
Undermine the Ninth Circuit’s
Approach ................................................... 31

III. Respondent’s Defense of the Ninth Circuit’s

FSIA Choice of Law Rule Is Unavailing ......... 32

CONCLUSION ....................................................... 36
 v

TABLE OF AUTHORITIES

CASES
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964) .............................................. 23

Bank of New York v. Yugoimport,

745 F.3d 599 (2d Cir. 2014) .................................. 34

Barkanic v. General Admin. of Civil Aviation of the

People’s Republic of China,
923 F.2d 957 (2d Cir. 1991) .................................. 21

Bernstein v. N.V. Nederlandsche-Amerikaansche

Stoomvaart-Maatschappij,
210 F.2d 375 (2d Cir. 1954) .................................. 11

Cassirer v. Kingdom of Spain,

461 F. Supp. 2d 1157 (C.D. Cal. 2006) ............... 7, 8

Cassirer v. Kingdom of Spain,

580 F.3d 1048 (9th Cir. 2009) ................................ 7

Cassirer v. Kingdom of Spain,

616 F.3d 1019 (9th Cir. 2010) ....................... passim

Cassirer v. Thyssen-Bornemisza Collection Found.,

737 F.3d 613 (9th Cir. 2013) .................................. 9

Cassirer v. Thyssen-Bornemisza Collection Found.,

153 F. Supp. 3d 1148 (C.D. Cal. 2015) ..1, 10, 12, 13
 vi

Cassirer v. Thyssen-Bornemisza Collection Found.,

862 F.3d 951 (9th Cir. 2017) ......................... passim

Cassirer v. Thyssen-Bornemisza Collection Found.,

824 F. App’x 452 (9th Cir. 2020) ...................... 1, 18

Crocker Nat’l Bank v. Byrne & McDonnell,

178 Cal. 329 (1918) ............................................... 13

Czyzewski v. Jevic Holding Corp.,

137 S. Ct. 973 (2017) ............................................ 36

Empire Healthchoice Assurance, Inc. v. McVeigh,

547 U.S. 677 (2006) .............................................. 23

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .......................................... 29, 34

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 32

Federal Republic of Germany v. Philipp,

141 S. Ct. 703 (2021) ........................................ 8, 24

First Nat’l City Bank v. Banco Para el Comercio

Exterior de Cuba,
462 U.S. 611 (1983) ........................................ 33, 34

Guaranty Trust Co. of New York v. York,

326 U.S. 99 (1945) ...............................25, 29, 30, 34

Hanna v. Plumer,
380 U.S. 460 (1965) .............................................. 30
 vii

Harris v. Polskie Linie Lotnicze,

820 F.2d 1000 (9th Cir. 1987) ....................... passim

Kansas v. Nebraska,
574 U.S. 445 (2015) .............................................. 26

Kearny v. Salomon Smith Barney, Inc.,

39 Cal. 4th 95 (Cal. 2006) ..................................... 10

Kingdom of Spain v. Estate of Claude Cassirer,

564 U.S. 1037 (2011) .............................................. 9

Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) ........................................ 20, 29

McFadden v. United States,

576 U.S. 186 (2015) .............................................. 32

Merck & Co., Inc. v. Reynolds,

559 U.S. 633 (2010) .............................................. 22

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ............................................ 19

Northrop Grumman Ship Sys., Inc. v. Ministry of

Def. of the Republic of Venezuela,
575 F.3d 491 (5th Cir. 2009) ................................ 21

O’Bryan v. Holy See,

556 F.3d 361 (6th Cir. 2009) ................................ 21

Oveissi v. Islamic Republic of Iran,

573 F.3d 835 (D.C. Cir. 2009)............................... 21
 viii

Permanent Mission of India to the United Nations v.

City of New York,
551 U.S. 193 (2007) ........................................ 19, 20

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639 (2012) .............................................. 33

Republic of Austria v. Altmann,

541 U.S. 677 (2004) ........................................ 24, 31

Richards v. United States,

369 U.S. 1 (1962) .................................................. 30

Rodriguez v. Federal Deposit Ins. Corp,

140 S. Ct. 713 (2018) ............................................ 23

Samantar v. Yousuf,
560 U.S. 305 (2010) .............................................. 19

Schoenberg v. Exportadora de Sal, S.A. de C.V.,

930 F.2d 777 (9th Cir. 1991) ...............14, 23, 27, 32

Swift v. Tyson,
41 U.S. 1 (1842) .............................................. 29, 34

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ........................................ 23, 24

Thyssen-Bornemisza Collection Found. v. Cassirer,

138 S. Ct. 1992 (2018) .......................................... 15

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) .................................. 23, 24, 29
 ix

United States v. Wells,

519 U.S. 482 (1997) .............................................. 22

Verlinden, B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) .............................................. 36

Von Saher v. Norton Simon Museum of Art at

Pasadena,
754 F.3d 712 (9th Cir. 2014) ................................ 12

Wheeldin v. Wheeler,
373 U.S. 647 (1963) ........................................ 22, 23

Wilburn Boat Co. v. Fireman’s Fund Ins. Co.,

348 U.S. 310 (1955) .............................................. 31

STATUTES AND LEGISLATIVE MATERIALS

28 U.S.C. § 1254(1)..................................................... 1

28 U.S.C. § 1330 ....................................................... 33

28 U.S.C. § 1602 ................................................... 1, 31

28 U.S.C. § 1603 ......................................................... 1

28 U.S.C. § 1604 ......................................................... 1

28 U.S.C. § 1605 ......................................................... 1

28 U.S.C. § 1605(a)(3) .................................7, 8, 35, 36

28 U.S.C. § 1606 ................................................ passim

 x

28 U.S.C. § 1652 ....................................................... 25

Holocaust Expropriated Art Recovery Act of 2016,

Pub. L. No. 114-308, 130 Stat. 1524 (2016) ......... 16

U.S. Military Law No. 52…………………………..4, 11

REGULATIONS
12 Fed. Reg. 2189 (Apr. 3, 1947)................................ 4

OTHER AUTHORITIES
Amy Coney Barrett, Procedural Common Law,
94 VA. L. REV. 813 (2008) ..................................... 24

Thomas W. Merrill, The Common Law Powers of

Federal Courts, 52 U. CHI. L. REV. 1, 28 (1985) .. 25

Marilyn E. Phelan, Scope of Due Diligence

Investigation in Obtaining Title to Valuable
Artwork, 23 SEATTLE U. L. REV. 631 (2000) ........ 13

Jay Tidmarsh & Brian J. Murray,

A Theory of Federal Common Law,
100 NW. U. L. REV. 585 (2006) .............................. 32

ERNESTO J. SANCHEZ, THE FOREIGN SOVEREIGN

IMMUNITIES ACT DESKBOOK, AMERICAN BAR
ASSOCIATION (2013) .................................. 22, 24, 28

European Convention on Human Rights, Protocol 1,

Article 1 ........................................................... 11, 12
 xi

European Parliament Resolution of December

2003……………………………………………………12

Letter from Jack B. Tate, Acting Legal Advisor,

Dep't of State (Apr. 13, 1959)………………………11

Parliamentary Assembly of the Council of Europe,

Resolution 1205 (Nov. 5, 1999)...………………….12

RESTATEMENT (SECOND) OF
CONFLICT OF LAWS .................................... 14, 26, 28

Terezin Declaration on Holocaust Era Assets and

Related Issues, U.S. DEP’T OF STATE (June 30,
2009), https://www.state.gov/prague-holocaust-era-
assets-conference-terezin-declaration/ ................ 11

Vilnius Forum on Holocaust Era Looted Cultural

Assets, Declaration (Oct. 5, 2000)…………………12

Washington Conference Principles on Nazi-

Confiscated Art, U.S. DEP’T OF STATE (Dec. 3,
1998), https://www.state.gov/washington-
conference-principles-on-nazi-confiscated-art/ .... 12
 1

OPINIONS BELOW
The opinions of the Ninth Circuit directly at issue
in this appeal are published at Cassirer v. Thyssen-
Bornemisza Collection Found., 824 F. App’x 452 (9th
Cir. 2020) (“Cassirer IV”) and Cassirer v. Thyssen-
Bornemisza Collection Found., 862 F.3d 951 (9th Cir.
2017) (“Cassirer III”), and are reproduced in the
Appendix to the Petition for a Writ of Certiorari (“Pet.
App.”) at A and C respectively.
The district court decision from which the 2020
appeal was taken is unpublished and is reproduced at
Pet. App. B. The 2017 appeal was taken from a
district court decision published at Cassirer v.
Thyssen-Bornemisza Collection Found., 153 F. Supp.
3d 1148 (C.D. Cal. 2015) and is reproduced at Pet.
App. D.
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Ninth Circuit decision affirming the
final judgment that respondent TBC is the lawful
owner of the stolen artwork was issued on August 17,
2020. Pet. App. A. A timely-filed Petition for Panel
Rehearing or Rehearing En Banc was denied on
December 7, 2020. Pet. App. E. The petition for a
writ of certiorari was timely filed on May 6, 2021. It
was granted on September 30, 2021.
STATUTORY PROVISIONS
The relevant provisions of the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1602–1606 are
reproduced at Pet. App. F.
 2

STATEMENT OF THE CASE

The courts below acknowledged Rue Saint-
Honoré, Afternoon, Rain Effect, by Jacob Abraham
Camille Pissarro (the “Painting”), was stolen from the
Cassirer family by the Nazis in violation of
international law. It was acquired more than five
decades later by Respondent TBC through an heir to
the Thyssen Steel empire, Baron Hans Heinrich von
Thyssen-Bornemisza. The lower courts found the
Baron did not act in good faith when he acquired the
Painting because he had “actual and concrete reasons
for suspicion” that it was stolen, and because he failed
to investigate its provenance. They found TBC was
aware of the same “red flags” of theft, also failed to
investigate, and “may have been irresponsible under
these circumstances.” The lower courts nevertheless
held that under “federal common law” Spanish law
applied, and effectively extinguished the Cassirers’
ownership rights, concluding the family did not prove
TBC or the Baron had “actual knowledge” the
Painting was stolen, under their interpretation of
Spanish law. The lower courts applied Spanish law
despite the fact that relevant provisions conflict with
the law and public policy of California—the Cassirers’
home for more than 40 years, the forum state, and the
place to which the Painting was first transferred out
of Germany 70 years ago—as well as numerous
international agreements and conventions concerning
Nazi-looted art.
A. Factual Background
This appeal arises from a two-decade legal battle
by the family of Holocaust survivor Lilly Cassirer to
recover a family treasure, Rue Saint-Honoré,
 3

Afternoon, Rain Effect, an 1897 oil painting by the

renowned French Impressionist artist Jacob
Abraham Camille Pissarro (the “Painting”).
In the nineteenth and early twentieth centuries,
the Cassirers were one of Europe’s most prominent
families in business, culture, and academia. Among
their achievements, cousins Paul and Bruno Cassirer
championed the nascent Impressionist movement
through their prestigious Berlin art gallery and
publishing house. Paul Cassirer bought Rue Saint-
Honoré in 1900 directly from Pissarro’s exclusive
agent in France, Paul Durand-Ruel.
Lilly inherited the Painting in 1926 and displayed
it prominently in her parlor, where her grandson,
Claude Cassirer, the original Plaintiff in this case,
played as a child. The Painting captures an iconic
Paris streetscape after an early afternoon rain
shower, and a photograph in evidence shows the
Painting in Lilly’s Weimar Germany home. Jt. App.
43a.
In 1939, the Nazis forced Lilly to “sell” the
Painting for the equivalent of $360 USD (paid into a
blocked account she could never access) to obtain exit
visas for herself and her husband, Professor Otto
Neubauer, to flee Germany. As Jews, had Lilly and
Professor Neubauer not escaped when they did, they
likely would have been murdered in a concentration
camp, as was Lilly’s sister Hannah, who stayed
behind to care for their elderly mother. Lilly survived
the war in England, and she eventually moved to the
United States, where she died in 1962.
After the War, Lilly attempted to recover the
Painting. In 1954, the U.S. Court of Restitution
 4

Appeals (“CORA”) declared her the rightful owner.

Having no other information about its existence, the
court assumed the Painting had been destroyed or
lost during the War. But the Painting was neither
destroyed nor lost. It was intact, in a private art
collection in the United States.
The record shows that, unbeknownst to Lilly, the
Painting was transferred from Germany to California
in 1951. As Nazi contraband, such an export violated
U.S. Military Law,1 and any sale of the Painting
should have been “null and void.”
In July 1951, the Painting was acquired by
Beverly Hills, California gallery owner Franz
(“Frank”) Perls from “Herr Urban” of Munich,
Germany, and sold to collector Sidney Brody in Los
Angeles. Jt. App. 44a, 50a, 51a, 63a. But not long
after, Brody returned the Painting to Perls in Beverly
Hills (Cassirer v. Thyssen-Bornemisza Collection
Foundation, No. 2:05-cv-03459 (C.D. Cal., filed May
10, 2005), Dkt. 377 at 54, ¶¶ 18–19; id., Dkt. 456-26),
and Perls then consigned the Painting to the Knoedler
Gallery in New York City. Knoedler sold the Painting
in May 1952 to St. Louis collector Sydney Shoenberg
for his private collection. Jt. App. 46a; Cassirer, No.

1 U.S. Military Law declared “null and void” any transfer of

works of art “under duress or other wrongful Nazi takings” that
were effected without a “duly issued license or authorization;”
the law further prohibited “the acquisition, receipt, dealing in,
selling, transfer, and export” of such property,” including “any
transfer, contract or other arrangement” “with the intent to
defeat or evade” “the restitution of any [such] property to its
rightful owner.” 12 Fed. Reg. 2189, 2196 (Apr. 3, 1947)
(amending Title 10, Subtitle A, Part 3, by adding Military Law
No. 52 as § 3.15, (Cassirer III, No. 15-55550, Dkt. 24-10)).
 5

2:05-cv-03459, Dkt 377 at 55, ¶¶ 21–22; id., Dkt. 413-

1.
In 1976, following Shoenberg’s death, the Stephen
Hahn Gallery in New York City undertook to sell the
Painting on consignment. In October 1976, Baron
Hans Heinrich von Thyssen-Bornemisza, the scion of
the Thyssen Steel dynasty in Germany, purchased
the Painting at Hahn’s Manhattan gallery. Cassirer,
No. 2:05-cv-03459, Dkt 377 at 54, ¶ 26; Jt. App. 51a.
Accordingly, following 25 years in the United States
the Painting was shipped to the Baron’s residence in
Switzerland.
In 1993, the Baron established the Respondent
Thyssen-Bornemisza Collection Foundation jointly
with the Kingdom of Spain. He sold the Painting,
together with much of his art collection, to TBC for
$350 million. Spain provided the funds for the
acquisition and furnished a palace in Madrid to house
the collection. Pet. App. C at 10; 862 F.3d at 957.
Lilly’s grandson, Claude Cassirer, survived the
Holocaust and became a United States citizen in
1947. He started in New York City and moved to
Cleveland, where he worked as a professional
photographer. He retired to San Diego, California, in
1980, where he lived with his wife Beverly until his
death in 2010. Beverly remained in San Diego until
she passed away in February 2020, a week short of
her 100th birthday.
Through the years, Claude, armed only with the
haunting black and white photo of the Painting
hanging over the sofa in Lilly’s parlor, attempted,
with the assistance of friends and associates, to locate
the Painting. Finally, in December 1999, Claude
 6

learned from a client that she had discovered the

Painting was listed in a catalogue of the TBC
collection.2
Claude promptly notified Spain and TBC that he
was Lilly’s sole heir and requested that they return
the Painting. In May 2001, Claude’s attorneys
formally petitioned Spain’s Minister for Education,
Culture and Sports (who was also the chair of the
board of the TBC Foundation) to return the Painting.
They also diligently pursued diplomatic channels to
convince Spain to return the Painting.
B. Procedural History
Having been unsuccessful with his formal
petition and diplomatic efforts, Claude Cassirer
turned to the courts. He sued Spain and TBC under
the Foreign Sovereign Immunities Act (“FSIA”), in
the District Court for the Central District of
California. The Complaint was filed on May 10, 2005.
Having lived in California for 25 years, Mr. Cassirer
alleged common law claims under the law of
California for conversion, unlawful possession of
personal property, and imposition of a constructive

2 In a decision that was not appealed, the district court rejected

TBC’s laches defense, finding “the Plaintiffs’ delay in filing suit
was not unfair or unreasonable, and that the balance of equities
favors Plaintiffs. Indeed, the Cassirers moved quickly to enforce
their rights.” Pet. App. B at 33. It noted that Lilly and the other
parties to the restitution proceeding in Germany “all believed
that the Painting had been lost or destroyed during the war,”
and it was reasonable for Claude Cassirer to rely on that belief.”
Id. “[O]nce Claude Cassirer learned that the Painting was not
lost or destroyed, he acted promptly by filing a Petition with the
Kingdom of Spain and TBC in 2001, and then, after that Petition
was denied, an action in this Court in 2005.” Id.
 7

trust, and sought return of the Painting, as well as

damages.
2006–2010—Litigation over FSIA Jurisdiction
In 2006, the district court denied motions to
dismiss by defendants Spain and TBC. Cassirer v.
Kingdom of Spain, 461 F. Supp. 2d 1157, 1178–79
(C.D. Cal. 2006). The court rejected their arguments
that the FSIA’s expropriation exception, 28 U.S.C.
§1605(a)(3), did not apply. It held that the Nazis had
taken the Painting in violation of international law
and that TBC engaged in substantial commercial
activity in the United States at a level to sustain
jurisdiction under the statute. Id. at 1170–76. The
district court also rejected the Defendants’ “domestic
takings” argument, because the Nazis confiscated the
Painting well after they had stripped Lilly of her
German citizenship. Id. at 1165–66. Further, the
court rejected Defendants’ argument that the
“expropriation exception” to immunity under the
FSIA did not apply to them because it was Germany,
not Spain, that expropriated the Painting in violation
of international law. Id. at 1163.
In 2009 and 2010, the Ninth Circuit (first by a
three-judge panel, Cassirer v. Kingdom of Spain, 580
F.3d 1048 (9th Cir. 2009), and then en banc, Cassirer
v. Kingdom of Spain, 616 F.3d 1019, 1032 (9th Cir.
2010) (“Cassirer I”) upheld the district court’s FSIA
jurisdiction under the expropriation exception. It
held the Painting was stolen from Lilly by Germany
in violation of international law,3 and that TBC had

3 The Ninth Circuit found: “In 1939 Lilly decided she had no
choice but to leave Germany. By that time—as the district court
 8

engaged in substantial commercial activities in the

United States.4 The Ninth Circuit also rejected the
Defendants’ argument that they were not covered by
§ 1605(a)(3) because Germany, not Spain,
expropriated the Painting in violation of international
law. Cassirer I, 616 F.3d at 1031–32 (“[W]e conclude
that §1605(a)(3) does not require that the foreign

judicially noticed—German Jews had been deprived of their civil

rights, including their German citizenship; their property was
being ‘Aryanized’; and the Kristallnacht pogroms had taken
place throughout the country.” Cassirer I, 616 F.3d at 1023.
“The district court’s determination that Lilly was no longer
regarded by Germany as a German citizen is not challenged on
appeal.” Id. at 1023 n.2. Consequently, this Court’s decision in
Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021)
does not affect this case.
4 The Ninth Circuit cited a portion of the district court’s findings
that TBC engaged in numerous “commercial activities in the
United States.” Cassirer I, 616 F.3d at 1032. These included
selling posters and books and licensing reproductions of images;
shipping gift shop items to purchasers in the U.S., including
posters of the Cassirers’ Painting, to residents in the Central
District of California and elsewhere in the United States;
sending press releases, brochures, and general information to
U.S. tourism offices, including one mentioning the Painting by
name; sending its Museum bulletin throughout the world,
including to 55 U.S. cities, two of which are in the Central
District of California; and a long list of others. Id. See also
Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157, 1172–76
(C.D. Cal. 2006).
TBC also participated in filming a program at the museum
showcasing the Painting that was featured on Iberia Airlines
flights to and from the United States. “As a result, several
tens—if not hundreds—of thousands of airline passengers
viewed the Pissarro presentation on at least 200 flights between
the United States, which no doubt serves as a powerful
marketing tool to entice U.S. tourists aboard these Iberia flights
to visit the Foundation’s museum while visiting Spain.” Cassirer
v. Kingdom of Spain, 461 F. Supp. 2d 1157, 1174 (C.D. Cal.
2006).
 9

state against whom suit is brought be the foreign

state that took the property in violation of
international law”). This Court denied Defendants’
petition for certiorari on this issue. See Kingdom of
Spain v. Estate of Claude Cassirer, 564 U.S. 1037
(2011); 2011 WL 2135028 (Brief of the United States
as Amicus Curiae in support of the Cassirers).
2010–2013—Litigation Over Statute of
Limitations
On remand after FSIA jurisdiction was
established, the district court granted TBC’s motion
to dismiss because the case had been brought after
expiration of California’s three-year statute of
limitations for replevin actions.5 The court held that
California’s newly enacted six-year limitations period
for “an action for the specific recovery of a work of fine
art brought against a museum, gallery, auctioneer, or
dealer,” was an unconstitutional infringement of U.S.
foreign policy.
On appeal of this decision in 2013, the Ninth
Circuit reversed and rejected TBC’s arguments,
holding that California’s six-year limitations period
was not preempted by U.S. foreign policy, and did not
violate TBC’s First Amendment rights. Cassirer v.
Thyssen-Bornemisza Collection Found., 737 F.3d 613,
621 (9th Cir. 2013) (“Cassirer II”).

5 Also at that time, the parties stipulated to dismiss the

Kingdom of Spain as a defendant with the understanding that
TBC would not contest its status as an “agency or
instrumentality” of Spain under the FSIA. Id. at 1163–64.
 10

2015–2017—Litigation over Choice of Law and

Substantive Rulings
In June 2015, on cross-motions for summary
judgment, the district court awarded ownership of the
Painting to TBC and dismissed the Cassirers’ claims.
Pet. App. D at 20; Cassirer v. Thyssen-Bornemisza
Collection Found., 153 F. Supp. 3d 1148, 1168 (C.D.
Cal. 2015). The court first addressed choice of law. In
applying federal common law choice of law principles
(as Ninth Circuit precedent required), it found that
Spanish substantive law applied. Pet. App. D at 7; 153
F. Supp. 3d at 1155. The court then upheld TBC’s
defense under Spanish substantive law that TBC had
acquired lawful ownership of the Painting by adverse
possession (or “acquisitive prescription”) for a period
of six years. Pet. App. D. at 11; 153 F. Supp. 3d at
1160.
The district court alternatively considered
California’s choice of law standard. Pet. App. D at 7;
153 F. Supp. 3d at 1155. That standard requires that
the court “carefully evaluates and compares the
nature and strength of the interest of each
jurisdiction in the application of its own law to
determine which state’s interest would be more
impaired if its policy were subordinated to the policy
of the other state.” Pet. App. D at 7; 153 F. Supp. 3d
at 1156 (quoting Kearny v. Salomon Smith Barney,
Inc., 39 Cal. 4th 95, 107–08 (Cal. 2006)).
Petitioners argued that California’s interests far
outweighed those of Spain, including because
California: follows the ancient common law rule that
a thief can never transfer good title; rejects adverse
possession for personal property; and has a statute
providing that claims against museums holding
 11

stolen art begins to run only upon “actual discovery,”

precluding the defense of acquisitive prescription.
Cassirer v. Thyssen-Bornemisza Collection Found.,
No. 2:05-cv-03459, Dkt. 251 at 1–2, 18–20, 36. In
addition, California’s choice of law framework
requires consideration of “all” interests, including
those of United States law and diplomatic agreements
such as the Washington Principles and Terezin
Declaration, which seek to resolve looted property
disputes based on their merits and are inconsistent
with Spain’s general acquisitive prescription rule
when applied to the special case of Nazi looted art. Id.
at 16, 30, 45–48.6

6 The sources of U.S. and international law and policy favoring

return of property looted by the German Nazi regime to its
rightful owners, and calling for owners’ claims to be resolved on
their merits, included: (1) The HEAR Act, described herein at 15;
(2) U.S. Military Law 52, described herein at 3; (3) the European
Convention on Human Rights, Protocol 1, Article 1, which
precludes an interpretation of Spanish law that vests title in
TBC after six years of bad faith possession; (4) April 13, 1949
Letter from Jack B. Tate, Acting Legal Advisor, Department of
State, stating U.S. government policy “to undo the forced
transfers and restitute identifiable property to the victims of
Nazi persecution wrongfully deprived of such property” and
“with respect to claims asserted in the United States for
restitution of such property, is to relieve American courts from
any restraint upon the exercise of their jurisdiction to pass upon
the validity of the acts of Nazi officials,” quoted in Bernstein v.
N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij,
210 F.2d 375, 376 (2d Cir. 1954); (5) Terezin Declaration on
Holocaust Era Assets and Related Issues, U.S. DEP’T OF STATE
(June 30, 2009) (“Terezin Declaration”),
https://www.state.gov/prague-holocaust-era-assets-conference-
terezin-declaration/, and Washington Conference Principles on
 12

The district court found, however, that Spain’s

interest “would be substantially more impaired.” Pet.
App. D at 9; 153 F. Supp. 3d at 1158. It cited Spain’s
“strong interest in regulating conduct that occurs
within its borders and in being able to assure
individuals and entities within its borders that, after
they have possessed property uninterrupted for more
than six years, their title and ownership of that
property are certain.” Pet. App. D at 10; id. at 1159.
Since it was undisputed that TBC possessed the
Painting for six years before Claude Cassirer made a
claim, the court granted summary judgment

Nazi-Confiscated Art (“Washington Principles”), U.S. DEP’T OF

STATE (Dec. 3, 1998), https://www.state.gov/washington-
conference-principles-on-nazi-confiscated-art/, which comprise
federal policies that charge participating countries (including
the United States and Spain) with the responsibility of ensuring
that Nations remedy—not perpetuate—the injustices of the Nazi
regime, including by protecting victims from wrongful property
dispossession. Von Saher v. Norton Simon Museum of Art at
Pasadena, 754 F.3d 712, 721 (9th Cir. 2014) (describing the
Washington Principles and Terezin Declaration as federal
policy); (6) the Parliamentary Assembly of the Council of Europe,
Resolution 1205 of November 5, 1999, calling for the restitution
of looted Jewish cultural property; (7) the Vilnius Forum on
Holocaust Era Looted Cultural Assets, Declaration of October 5,
2000, asking “all governments to undertake every reasonable
effort to achieve the restitution of cultural assets during the
Holocaust era to the original owners or their heirs”; and (8) the
European Parliament Resolution of December 2003, calling on
Member states, including Spain, to “be mindful that the return
of art objects looted as part of a crime against humanity to
rightful claimants is a matter of general interest for the purposes
of Article1 of Protocol 1 to the European Convention of Human
Rights.”
 13

awarding possession to TBC. Pet. App. D at 12, 19;

id. at 1160, 1168.
The Cassirers appealed once again to the Ninth
Circuit. As to choice of law, they argued that
California law, not federal common law, should apply.
They further argued that proper application of
California choice of law rules would lead to
application of California substantive law, which
would dictate return of the Painting. Alternatively,
Petitioners argued that proper application of the
Ninth Circuit’s federal common law test likewise
required application of California substantive law.
The Ninth Circuit decided the case, however,
without undertaking a choice of law analysis under
California law, despite recognizing that California
substantive law would require return of the Painting:
Under California law, thieves cannot pass
good title to anyone, including a good faith
purchaser. Crocker Nat’l Bank v. Byrne &
McDonnell, 178 Cal. 329, 332, 173 P. 752
(1918). This is also the general rule at
common law. See Kingdom of Spain, 616 F.3d
at 1030, n.14 (quoting Marilyn E. Phelan,
Scope of Due Diligence Investigation in
Obtaining Title to Valuable Artwork, 23
SEATTLE U. L. REV. 631, 633–34 (2000))
(“One who purchases, no matter how
innocently, from a thief, or all subsequent
purchasers from a thief, acquires no title in
the property. Title always remains with the
true owner.”). This notion traces its lineage
to Roman law (nemo dat quod non habet,
meaning “no one gives what he does not
have”).
 14

But the application of our choice of law

jurisprudence requires that we not apply
such familiar rules, under the circumstances
of this case. As we shall see, Spain’s property
laws will determine whether the Painting
has passed to TBC via acquisitive
prescription.
Pet. App. C at 18–19, Cassirer III, 862 F.3d at 960–61
(footnote omitted).
When the Ninth Circuit went on to address choice
of law, its entire discussion was comprised of the
following two sentences:
This Court has held that, when jurisdiction
is based on the FSIA, “federal common law
applies to the choice of law rule
determination. Federal common law follows
the approach of the Restatement (Second) of
Conflict of Laws.” Schoenberg v. Exportadora
de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th
Cir. 1991) (citations omitted).
Pet. App. C at 19; Cassirer III, 862 F.3d at 961.
The Ninth Circuit then applied its self-created
federal common law approach to the choice of law
question that is at issue in this appeal. It held that
Spanish substantive law applied. In doing so, the
court placed heavy emphasis on § 246 of the Second
Restatement of Conflict of Laws, which “indicates
that Spain has the ‘dominant interest’ in determining
whether the Painting was transferred to TBC via
acquisitive prescription because the Painting was
bought in Spain and has remained in Spain.” Pet.
App. C at 25; Cassirer III, 862 F.3d at 964.
 15

Ultimately, the Ninth Circuit reversed the award

of summary judgment to TBC because it found the
district court had incorrectly interpreted and applied
Spanish law. It ruled that the Cassirers’ evidence had
created a genuine issue of material fact as to whether
TBC was an “encubridor”—roughly, an accessory
after the fact to the Nazis’ theft of the Painting. Pet.
App. C at 61; Cassirer III, 862 F.3d at 981.
Under Spanish law, if TBC (or the Baron) had
“actual knowledge” (which can be satisfied by willful
blindness) that the Painting was stolen, they would
be an “encubridor,” and the holding period required
for acquisitive prescription would be twenty-six years,
not six. Pet. App. C at 30; Cassirer III, 862 F.3d at
966. That would defeat TBC’s claim of title to the
Painting, since it had held it for far less than twenty-
six years prior to the Cassirers’ claim. Id.
The Ninth Circuit accordingly remanded the case
for trial on whether the Baron and TBC were an
encubridor. Pet. App. C at 61; Cassirer III, 862 F.3d
at 981. TBC again sought certiorari review, which this
Court denied. Thyssen-Bornemisza Collection Found.
v. Cassirer, 138 S. Ct. 1992 (2018).
2015–2017—Application of HEAR Act
Despite the Ninth Circuit’s 2013 decision
requiring application of California’s six-year
limitations period for claims against museums by the
rightful owners of stolen art, TBC continued to argue
that the statute violated its due process rights.
All statute of limitations issues were finally
resolved, however, when Congress enacted the
Holocaust Expropriated Art Recovery Act of 2016,
Pub. L. No. 114-308, 130 Stat. 1524 (2016) (the
 16

“HEAR Act”). The HEAR Act established a national

six-year limitations period from the date of the
plaintiff’s “actual discovery” for claims seeking
recovery of Nazi-looted artworks. Id. § 5(a). The Act
expressly applied to any case “pending in any court on
the date of enactment.” Id. § 5(d)(1). As part of its
Cassirer III decision, the Ninth Circuit applied the
HEAR Act to hold that this action was timely filed.
Pet. App. C at 16–17; 862 F.3d at 959–60.
In addition, the HEAR Act expressly decreed that
claims for Nazi looted artworks may be pursued
“Notwithstanding . . . any defense at law relating to
the passage of time.” HEAR Act, § 5(a). Based on this
provision, Petitioners argued that the literal
language of the HEAR Act foreclosed TBC’s
prescription defense altogether, because acquisitive
prescription is a defense “relating to the passage of
time.” Pet. App. C at 26; Cassirer III, 862 F.3d at 964.
The Ninth Circuit found, however, that the Act “does
not alter the choice of law analysis.” Pet. App. C at
26; Cassirer III, 862 F.3d at 964.
2018–2019—Trial on Whether TBC and the
Baron Were Encubridores Under Spanish Law
In December 2018, the district court finally held
a one-day bench trial, limited to the question whether
the Baron or TBC were a “encubridor” under Spanish
law.
On April 30, 2019, the district court issued
findings of fact and conclusions of law. Pet. App. B.
It found that the Baron had not purchased the
Painting in good faith and therefore did not pass good
title to TBC under the laws of Switzerland, where the
Baron resided, because he “had actual and concrete
 17

reasons for suspicion” that the Painting was stolen

property, and took no steps to determine its true
provenance, even though he “would have recognized
the suspicious circumstances.”7 Pet. App. B at 21–25.
Yet the Court concluded that these facts did not
constitute “actual knowledge” that the Painting was
stolen under the Court’s interpretation of Spanish
law. Pet. App. B at 29.
Similarly, TBC had all of the same knowledge and
reasons to suspect the Painting was stolen (and
more), but the district court concluded TBC’s failure
to investigate “may have been irresponsible,” but “it
certainly was not criminal.”8 Id.

7 The Baron purchased the Painting notwithstanding that no

information was provided about its provenance between 1899
and 1976, including the entire Nazi era from 1933 to 1945. Jt.
App. 90a. Nor was there any explanation of how the Painting
came to leave France (where it was created) or Germany (as the
Cassirer Gallery’s partial label on the verso showed it had been
at the family’s renowned art gallery in Berlin). Jt. App. 95a.
Further, the Cassirer Gallery is listed by TBC in its publications
concerning the provenances of at least 20 other paintings in its
collection, so the gallery and its labels were clearly known to the
Baron and TBC’s curators. Jt. App. 104a.
8 When Spain and TBC purchased Baron’s collection, they
investigated the Baron’s title to several paintings, but not the
Pissarro. Spain “conducted no investigation of the Painting’s
provenance or title” because “the Baron had acquired the
Painting prior to 1980.” Pet. App. B at 11. “The Kingdom of
Spain and its counsel were aware, however, that if the Baron
had acquired any of artworks (including the Painting) in “bad
faith,” or, in other words, if he “knew or should have known of
the lacking right of the transferor,” ownership could not have
been acquired by him. Cassirer v. Thyssen-Bornemisza
Collection Found., No. 2:05-cv-03459, Dkt. 458-11 at 3. In such
a case, “[t]he rightful owner keeps his rights at all times to claim
recovery of the object.” Id. The Kingdom of Spain presumed the
 18

Accordingly, the district court dismissed the case

and ordered that TBC could keep the stolen Painting.
Pet. App. B at 20–30, 34.9
On the case’s fourth trip to the Ninth Circuit, the
judgment was affirmed, essentially for the reasons
stated by the district court. Pet. App. A; Cassirer IV,
824 F. App’x 452 (9th Cir. 2020). Petitioners timely
filed a Petition for Panel Rehearing or Rehearing En
Banc, which raised the choice of law issues. It was
denied on December 7, 2020. Pet. App. E.
Petitioners filed their Petition for Writ of
Certiorari on May 6, 2021, and it was granted on
September 30, 2021.
SUMMARY OF ARGUMENT
Petitioners’ lawsuit asserts state law claims,
brought in accordance with the FSIA. At trial, the
district court applied binding Ninth Circuit precedent
in which the court of appeals had held that in FSIA
cases “federal common law” must be used to
determine the source of substantive law to adjudicate
state law claims. Here, application of the Ninth
Circuit’s self-created FSIA choice of law rule resulted
in the application of Spanish law, which was the
dispositive factor in the district court’s judgment in
favor of Respondent, an instrumentality of the
Kingdom of Spain.

Baron acted in good faith. Pet. App. B. at 11 (Spain’s attorney,

Fernando J. Perez de la Sota, testified: “we simply had no reason
to believe otherwise.”). However, as the district court found, that
assumption was incorrect; the Baron did not possess the
Painting in good faith. Pet. App. B at 21–25.
9 The trial and appellate judgments under review here applied
the Ninth Circuit’s 2017 choice of law decision.
 19

The Ninth Circuit’s FSIA choice of law rule is

contrary to the plain text of the FSIA, which provides:
“the foreign state shall be liable in the same manner
and to the same extent as a private individual under
like circumstances . . . .” 28 U.S.C. § 1606. Its rule is
also incompatible with this Court’s decisions
concerning federal common law, with the Rules of
Decision Act, and with the ordinary rules federal
courts employ when making choice of law
determinations in cases asserting state law causes of
action.
Having been rejected by every other federal court
of appeals to weigh in because it is clearly wrong, the
Ninth Circuit’s FSIA choice of law rule should be
overturned by this Court, the judgment vacated, and
the case remanded for further proceedings.
ARGUMENT
I. The Language of Section 1606 of the FSIA
Manifests Congress’s Intent to Prescribe
State Law Choice of Law Rules in FSIA
Cases Asserting State Law Claims
When interpreting a federal statute, this Court
has made clear that its responsibility is to discern
Congress’s intent, and then honor that intent by
employing the best reading of the statute consistent
with it. See, e.g., New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 543 (2019).
As with any statute, the Court begins its inquiries
concerning the FSIA with the text. See Samantar v.
Yousuf, 560 U.S. 305, 313 (2010) (“We begin with [the
FSIA’s] text”); Permanent Mission of India to the
United Nations v. City of New York, 551 U.S. 193, 197
 20

(2007) (“We begin, as always, with the text of the

statute.”).
Section 1606 of the FSIA provides: “the foreign
state shall be liable in the same manner and to the
same extent as a private individual under like
circumstances . . . .” This language is most logically
read as manifesting Congress’s intent that state law
should be the source for deciding choice of law in FSIA
cases.
A lawsuit identical to Petitioners’ except asserted
against, say, a private Spanish art dealer, would be
heard either in a state court, or in federal court on the
basis of diversity jurisdiction. In the former
circumstance, state law would supply the choice of
law principles. In the latter, state choice of law
principles also would apply. See Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487 (1941). Thus, with
respect to choice of law, the only way the foreign state
can be “liable in the same manner and to the same
extent as a private individual under like
circumstances” is to use the law of the forum state as
the source of choice of law principles.
This reading of the FSIA is supported by the fact
that the Second, Fifth, Sixth and D.C. Circuits agree
that the law of the forum state governs the choice of
law analysis for state law claims brought under the
FSIA. As the Second Circuit has explained:
[W]e must infer from the statutory language
a choice of law analysis that best effectuates
Congress' overall intent. Of particular
significance in this regard is language
providing that ‘the foreign state shall be
liable in the same manner and to the same
 21

extent as a private individual under like

circumstances.’ 28 U.S.C. § 1606 . . . . The
goal of applying identical substantive laws to
foreign states and private individuals,
however, cannot be achieved unless a federal
court utilizes the same choice of law analysis
in FSIA cases as it would apply if all the
parties to the action were private.
Barkanic v. General Admin. of Civil Aviation of the
People’s Republic of China, 923 F.2d 957, 959–60 (2d
Cir. 1991); id. at 961 (“we conclude that the FSIA
requires courts to apply the choice of law rules of the
forum state . . .”); see also Northrop Grumman Ship
Sys., Inc. v. Ministry of Def. of the Republic of
Venezuela, 575 F.3d 491, 498 (5th Cir. 2009)
(“Because this case arises under the FSIA, we apply
the choice-of-law rules of the forum state.”); O’Bryan
v. Holy See, 556 F.3d 361, 381 n.8 (6th Cir. 2009) (“in
FSIA cases, we use the forum state’s choice of law
rules to resolve ‘all issues,’ except jurisdictional ones”
(citations omitted)); Oveissi v. Islamic Republic of
Iran, 573 F.3d 835, 841 (D.C. Cir. 2009) (“We thus
agree with the Second Circuit that applying the forum
state’s choice-of-law principles, rather than
constructing a set of federal common law principles,
better effectuates Congress’ intent that foreign states
be ‘liable in the same manner and to the same extent
as a private individual’ in FSIA actions” (quoting 28
U.S.C. § 1606)).
Commentators too recognize that the FSIA’s “key
language with respect to choice of law issues is its
provision [Section 1606] that ‘the foreign state shall
be liable in the same manner and to the same extent
as a private individual under like circumstances.’”
 22

ERNESTO J. SANCHEZ, THE FOREIGN SOVEREIGN

IMMUNITIES ACT DESKBOOK, AMERICAN BAR
ASSOCIATION 300 (2013); id. (“The type of suit between
private parties most analogous to an FSIA case . . . is
one brought under federal courts’ diversity
jurisdiction”).
II. Any Ambiguity Should Be Resolved in Favor
of Applying State Choice of Law
Although Petitioners believe that Section 1606 is
clear and manifests Congress’s intent that state law
is the proper source for choice of law to apply in FSIA
cases, there are additional compelling reasons to
conclude that was Congress’s intent.
A. Congress Is Presumed to Legislate
Aware of This Court’s Decisions,
Including Its Limitations on the
Creation of Federal Common Law
As with all federal statutes, Congress is presumed
to have drafted and enacted the FSIA having in mind
this Court’s decisions. See, e.g., United States v.
Wells, 519 U.S. 482, 495 (1997) (“[W]e presume that
Congress expects its statutes to be read in conformity
with this Court’s precedents”); Merck & Co., Inc. v.
Reynolds, 559 U.S. 633, 648 (2010) (“We normally
assume that, when Congress enacts statutes, it is
aware of relevant judicial precedent.”).
This Court made clear for decades prior to the
FSIA’s enactment that instances where there is need
and authority for federal common law are “few and
restricted.” Wheeldin v. Wheeler, 373 U.S. 647, 651
(1963). Those instances generally fall into two
categories: those in which a federal rule of decision is
“necessary to protect uniquely federal interests,”
 23

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

426 (1964); and those in which Congress has given the
courts the power to develop substantive law,
Wheeldin, 373 U.S. at 652. See also Texas Indus., Inc.
v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981);
Rodriguez v. Federal Deposit Ins. Corp, 140 S. Ct. 713,
717 (2018) (“there is ‘no federal general common law,’”
and “common lawmaking must be ‘necessary to
protect uniquely federal interests.’”).10
When the Ninth Circuit first created the FSIA
choice of law rule that it ultimately employed in this
case, the Ninth Circuit did not even acknowledge this
important line of cases. See Harris v. Polskie Linie
Lotnicze, 820 F.2d 1000 (9th Cir. 1987); Schoenberg
v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777,
782–83 (9th Cir. 1991). Instead, the Ninth Circuit
turned this Court’s approach to federal common law
on its head, explaining: “[i]n the absence of specific
statutory guidance, we prefer to resort to the federal
common law for a choice-of-law rule.” Harris, 820
F.2d at 1003. Claiming “this avenue is not closed to
us,” the Ninth Circuit cited a few court of appeals
decisions—but, notably, not a single decision by this
Court concerning federal common law. Id.
Had the Ninth Circuit considered this Court’s
decisions concerning federal common law, it would
have recognized that “[t]he vesting of jurisdiction in

10 Like this Court, Congress recognizes that even

“[c]ontroversies directly affecting the operations of federal
programs, although governed by federal law, do not inevitably
require resort to uniform federal rules.” United States v. Kimbell
Foods, Inc., 440 U.S. 715, 727–28 (1979); see also Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 691–92
(2006).
 24

the federal courts does not in and of itself give rise to

authority to formulate federal common law,” Texas
Industries, 451 U.S. at 640–41, and that FSIA choice
of law does not fit within any of the “few and
restricted” domains of federal common law.11
Although the Ninth Circuit ignored this Court’s
precedents limiting the creation and use of federal
common law, Congress is presumed to have legislated
with these constraints in mind. Applying that
presumption to the FSIA casts serious doubt on the
Ninth Circuit’s FSIA choice of law rule. See THE
FOREIGN SOVEREIGN IMMUNITIES ACT DESKBOOK at
301 (noting this Court’s admonition to apply federal
common law in “only a ‘few and restricted’ instances,”
and “the flaw in the Ninth Circuit’s approach”).12

11 “Federal statutes may explicitly or implicitly authorize the

creation of federal common law,” Amy Coney Barrett, Procedural
Common Law, 94 VA. L. REV. 813, 822 (2008), but FSIA does
neither. Moreover, the Ninth Circuit’s FSIA choice of law rule
does not fit within any recognizable body of federal common law
of procedure. See id. at 822–32 (describing doctrines illustrating
procedural common law). The Ninth Circuit appears to have
disregarded the important principle that “Congress can confer
common lawmaking power on federal judges, but federal judges
cannot confer such power on themselves.” Id. at 837.
12 The Ninth Circuit’s FSIA choice of law rule also runs counter
to the FSIA’s “overall structure,” Republic of Austria v. Altmann,
541 U.S. 677, 698 (2004), designed, in significant part, to narrow
federal common law by displacing aspects of it with a statute.
By seeking to create new federal common law and extend it into
an area where there is already “readymade” law, United States
v. Kimbell Foods, Inc., 440 U.S. 715, 740 (1979), the Ninth
Circuit’s rule misreads FSIA and “bypass[es] its design.”
Federal Republic of Germany v. Philipp, 141 S. Ct. 703, 715
(2021).
 25

B. Congress Enacted the FSIA Subject to

the Rules of Decision Act
Originally part of the Judiciary Act of 1789, the
Rules of Decision Act provides: “The laws of the
several states, except where the Constitution or
treaties of the United States or Acts
of Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the
courts of the United States, in cases where they
apply.” 28 U.S.C. § 1652.
The Act is an “explicit command given to [federal
courts] by Congress to apply State law in cases
purporting to enforce the law of a State,” Guaranty
Trust Co. of New York v. York, 326 U.S. 99, 102 (1945),
and “appears to be a severe restriction on lawmaking
by federal courts.” Thomas W. Merrill, The Common
Law Powers of Federal Courts, 52 U. CHI. L. REV. 1,
28 (1985).
Given the “explicit command” of the Rules of
Decision Act, nothing in the language of the FSIA
indicates that Congress intended federal courts to
develop a new regime of federal common law as the
source for choice of law in FSIA cases where the
underlying substantive claims arose under state
law—or in the words of Guaranty Trust, where the
claims “purport[] to enforce the law of a State.” The
Ninth Circuit, however, failed to even consider the
Rules of Decision Act when it adopted its FSIA choice
of law rule.
 26

C. The Absence of Developed, Relevant

Federal Common Law Further
Reinforces That Congress Intended
State Law to Apply
When the Ninth Circuit first adopted its FSIA
choice of law rule in Harris, 820 F.2d 1000, there was
no applicable federal common law as to choice of law
in existence. The court, therefore, set out to create it,
seizing on the Restatement (Second) of Conflict of
Laws as a “starting point for applying federal common
law in this area,” id. at 1003, without mentioning or
citing any decision by this Court.
Moreover, the Ninth Circuit initially adopted the
Restatement as its version of federal common law
without considering whether the Restatement, which
had been published 16 years earlier, in 1971, was an
appropriate source of legal principles for FSIA cases.
Since then, the court of appeals has neither
elaborated on the content of its FSIA choice of law
rule, nor considered the fitness of the 50-year old
Restatement for contemporary FSIA disputes in a
vastly changed world. See also Kansas v. Nebraska,
574 U.S. 445, 475 (2015) (Scalia, J., concurring in part
and dissenting in part) (“modern Restatements . . . are
of questionable value, and must be used with caution.
The object of the original Restatements was ‘to
present an orderly statement of the general common
law.’ Restatement of Conflict of Laws, Introduction,
p. viii (1934). Over time, the Restatements’ authors
have abandoned the mission of describing the law,
and have chosen instead to set forth their aspirations
for what the law ought to be.”).
Even apart from those omissions, the fact that the
court of appeals had to fashion an entirely new
 27

common law rule should have been a warning it was

headed in the wrong direction. Indeed, in Harris the
court was not even sure what the FSIA requires,
explaining: “We do not disagree with the district
court’s choice [to apply state law], we simply are not
persuaded that the FSIA requires a court to choose as
did the district court.” Harris, 820 F.2d at 1003.
Nevertheless, based on its “prefer[ence] to resort to
the federal common law for a choice-of-law rule,” the
Ninth Circuit adopted the FSIA choice of law rule
before the Court today. Id. As shown in Sections II.A.
and D., however, federal common law is not a matter
to be addressed based on a federal court’s mere
“preference” when constitutional, statutory, and
institutional constraints all counsel against it.
Illustrating the pitfalls of mandating the
application of undeveloped federal common law, the
Ninth Circuit’s venture in common lawmaking for
FSIA choice of law has gone badly. Harris and
Schoenberg were both wrongful death actions arising
from airplane crashes, which did little to flesh out the
contours of “federal common law” for choice of law in
FSIA case. See Harris, 820 F.3d at 1003–
04; Schoenberg, 930 F.2d at 782–83. Here, the Ninth
Circuit’s FSIA choice of law rule led the district court
to engage in a free-wheeling interpretation of various
Restatement elements, with highly questionable
results.13

13 According to the Ninth Circuit: “In addition to considering any

specific jurisdiction-selecting rule, a court is supposed to apply
the Section 6 factors to decide which state has the most
significant relationship to the case. These factors are: (a) the
needs of the interstate and international systems, (b) the
 28

For example, the lower courts gave virtually no

weight to: California’s laws and policies protecting its
citizens’ property rights with respect to stolen
property in general and stolen works of fine art in
particular; or U.S. law and policy and international
agreements relating specifically to Nazi looted art
that are inconsistent with Spain’s broadly applicable
adverse possession rules. At the same time, the
courts gave undue consideration to Spain’s financial
investment in the Thyssen-Bornemisza Museum.
The courts’ related observation that the Painting had
been held in Spain for more than 20 years overlooked
that for 14 of those years, the Cassirers (whose family
title in the Painting dated back to 1900) were actively
seeking its return, as well as the 25 years that the
Painting—which was tantamount to contraband
under U.S. Military law—had spent in California and
the United States. Pet. App. D at 6; see also THE
FOREIGN SOVEREIGN IMMUNITIES ACT DESKBOOK at
303 (questioning Ninth Circuit’s reliance on Section 6
of the Restatement (Second) of Conflict of Laws as
“the appropriate federal common law choice of law
regime.”).
As this Court has long recognized, absent strong
countervailing considerations, “the prudent course” is
to “adopt the readymade body of state law,” not to
venture into judicial lawmaking via new rules of
federal common law in uncharted areas. See United

relevant policies of the forum, (c) the relevant policies of other

interested states and the relative interests of those states in the
determination of the particular issue, (d) the protection of
justified expectations, (e) the basic policies underlying the
particular field of law, (f) certainty, predictability and uniformity
of result, and (g) ease in the determination and application of the
law to be applied.” Cassirer III, 862 F.3d at 962.
 29

States v. Kimbell Foods, Inc., 440 U.S. 715, 740

(1979). The Ninth Circuit erred in eschewing that
“prudent course” for choice of law analyses in FSIA
cases asserting state law claims.
D. Courts Should Not Presume That
Congress Intended to Displace State
Choice of Law Rules
In Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938), the Court repudiated the “oft-challenged
doctrine of Swift v. Tyson,” and made clear “[t]here is
no federal general common law.”
Three years later, in Klaxon, 313 U.S. 487 (1941),
the Court held that the Erie principle “extends to the
field of conflict of laws,” explaining “[a]ny other ruling
would do violence to the principle of uniformity within
a state upon which the [Erie] decision is based.” Id.
at 496. As for “[w]hatever lack of uniformity this may
produce between federal courts in different states,”
the Court observed that is “attributable to our federal
system, which leaves to a state . . . the right to pursue
local policies diverging from those of its neighbors. It
is not for the federal courts to thwart such local
policies by enforcing an independent ‘general law’ of
conflict of laws.” Id.
Four years later, in Guaranty Trust Co. of N.Y. v.
York, 326 U.S. 99 (1945), the Court explained that
Erie’s intent “was to insure that, in all cases where a
federal court is exercising jurisdiction solely because
of the diversity of citizenship of the parties, the
outcome of the litigation in the federal court should be
substantially the same . . . as it would be if tried in a
State court. The nub of the policy that underlies Erie
R.R. Co. v. Tompkins is that for the same transaction
 30

the accident of suit by a non-resident litigant in a

federal court instead of in a State court a block away,
should not lead to a substantially different result.” Id.
at 109. With diversity jurisdiction, “Congress
afforded out-of-State litigants another tribunal, not
another body of law. The operation of a double system
of conflicting laws in the same State is plainly hostile
to the reign of law.” Id. at 112; see also Hanna v.
Plumer, 380 U.S. 460, 467 (1965) (“The Erie rule is
rooted in part in a realization that it would be unfair
for the character of result of a litigation materially to
differ because the suit had been brought in federal
court.”).
Following these cases, but more than a decade
before the FSIA was enacted, the Court observed that,
despite the power of Congress to enact “a federal
conflict-of-laws rule independent of the States’
development of such rules, we should not . . . assume
that it has it has done so.” Richards v. United States,
369 U.S. 1, 13 (1962). “Congress has been specific in
those instances where it intended the federal courts
to depart completely from state law.” Id. Here, as in
Richards, which concerned the Federal Tort Claims
Act, “there is nothing” in the text, or “in the legislative
history that even remotely supports the argument
that Congress did not intend state conflict rules to
apply . . . .” Id. at 14. Likewise in the FSIA, because
Congress knows how to be “specific” when it intends
“the federal courts to depart completely from state
law,” id. at 13, the absence of such specific direction
means that state law should be applied on choice of
law questions.
 31

E. Federalism and the Doctrine of

Constitutional Avoidance Further
Undermine the Ninth Circuit’s
Approach
The Ninth Circuit’s FSIA choice of law rule raises
additional questions which cast further doubt on the
notion that Congress did not intend for state law to
provide the source of law for choice of law in FSIA
cases. For example, under the Ninth Circuit’s view,
should federal common law also supply choice of law
for cases proceeding in state courts? If the Ninth
Circuit was purporting to abide by congressional
intent, what is that intent? FSIA governs both federal
and state cases against foreign sovereigns. Republic
of Austria v. Altmann, 541 U.S. 677, 691 (2004)
(FSIA’s “preamble states that ‘henceforth’ both
federal and state courts should decide claims of
sovereign immunity in conformity with the Act’s
principles. 28 U.S.C. §1602.”). Is it the Ninth
Circuit’s view that Congress intended one choice of
law rule for state cases, and another for federal cases?
One would expect to find evidence of such an unusual
rule had that been Congress’s directive.
Requiring state courts to apply federal common
law to determine choice of law in FSIA cases would
raise thorny legal questions, including a collision of
federalism principles with the proposition that
“States can no more override” at least certain “judicial
rules validly fashioned than they can override Acts of
Congress.” Wilburn Boat Co. v. Fireman’s Fund Ins.
 32

Co., 348 U.S. 310, 314 (1955).14 In this context, it is

particularly appropriate to use the doctrine of
constitutional avoidance as “an interpretive tool”,
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
516 (2009), “for choosing between competing plausible
interpretations of a provision,” McFadden v. United
States, 576 U.S. 186, 197 (2015) (citation omitted), to
avoid interpretations of statues that might render
them invalid. Here, the interpretation of the FSIA
adopted by the Second, Fifth, Sixth and D.C. Circuits
sidesteps the complications invited by the Ninth
Circuit’s rule.
III. Respondent’s Defense of the Ninth Circuit’s
FSIA Choice of Law Rule Is Unavailing
Because the Ninth Circuit adopted federal
common law as its choice of law rule in FSIA cases
without meaningfully engaging the text of Section
1606,15 Respondent is left to offer its own
justifications. See Brief In Opposition at 24–26. But
Respondent’s explanations are not in the least
convincing.
In opposing review by this Court, Respondent
defended the use of federal common law by claiming
there are “numerous statements in the FSIA”
requiring that a sovereign be treated differently than

14 “According to standard theory, federal common law is a

species of federal law, which state courts must apply by virtue of
the command of the Supremacy Clause.” Jay Tidmarsh & Brian
J. Murray, A Theory of Federal Common Law, 100 NW. U. L. REV.
585, 586 n.8 (2006).
15 See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003–04
(9th Cir. 1987); Schoenberg v. Exportadora de Sal, S.A. de C.V.,
930 F.2d 777, 782–83 (9th Cir. 1991).
 33

a private defendant. Brief in Opposition at 24. While

“numerous” may be an overstatement (there are a
few), the existence of those examples misses the point
of Section 1606. That provision must be read in the
context of the entire statute, and consistent with the
canon of statutory interpretation governing the
relationship of specific and more general provisions.
See, e.g., RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (“The
general/specific canon is perhaps most frequently
applied to statutes in which a general permission or
prohibition is contradicted by a specific prohibition or
permission. To eliminate the contradiction, the
specific provision is construed as an exception to the
general one.”).
Here, Section 1606 instructs that sovereigns
shall be treated like private defendants in like
circumstances, except where the FSIA provides
otherwise. For instance, sovereigns are not subject to
jury trials notwithstanding Section 1606, because the
FSIA expressly provides there shall be no jury trials.
28 U.S.C. § 1330. Similarly, Section 1606 itself
contains a proviso that limits punitive damages
against foreign states. However, there is no
comparable, more specific provision that would alter
Section 1606’s general application to choice of law.
Respondent next argued in opposing the petition
that Section 1606 cannot mean what it says because
one of the FSIA’s “primary purposes” was “to address
the need for national uniform standards in actions
involving sovereign entities.” Brief in Opposition at
25 (citing First Nat’l City Bank v. Banco Para el
Comercio Exterior de Cuba, 462 U.S. 611, 622 n. 11
(1983) (“Bancec”)). However, Congress’s primary
 34

concern with respect to uniformity in the FSIA is to

ensure uniform application of exceptions to
immunity. Bank of New York v. Yugoimport, 745 F.3d
599, 609 n.8 (2d Cir. 2014) (The FSIA “provides
foreign states and their instrumentalities access to
federal courts only to ensure uniform application of
the doctrine of sovereign immunity.”). But once a
plaintiff shows that an exception is applicable, “where
state law provides a rule of liability governing private
individuals, the FSIA requires application of that rule
to foreign states in like circumstances.” Bancec, 462
U.S. at 622 n.11.
Congress undoubtedly sought some measure of
uniformity with the FSIA, but it explicitly rejected the
idea of imposing uniformity at the expense of all other
considerations. On the contrary, the FSIA permits
the application of State substantive law to sovereign
defendants, despite the fact that the substantive laws
of the fifty States differ far more from each other than
do the States’ choice of law rules. Under Respondent’s
interpretation, Congress should have preempted the
States’ laws of torts and contracts to apply instead
some “uniform” federal substantive common law to
govern such claims. Of course, Congress did not do
so.16

16 Respondent’s extolling of “uniformity” to justify the Ninth

Circuit’s foray into judicial lawmaking resembles the pervasive
pre-Erie mindset “stimulated by the attractive vision of a
uniform body of federal law.” Guaranty Trust Co. of New York
v. York, 326 U.S. 99, 103 (1945); see also Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 75 (1938) (“In attempting to promote
uniformity of law throughout the United States, the doctrine [of
Swift v. Tyson] had prevented uniformity in the administration
of the law of the state.”).
 35

Moreover, as discussed above, Respondent is

mistaken in concluding that use of “federal common
law” with respect to choice of law for the FSIA would
create “uniformity.” There is simply no already-
established federal common law for deciding choice of
law in FSIA cases that can be readily and consistently
deployed by all federal courts. Instead, that common
law would itself be subject to development, and
therefore to disagreement, among the lower courts.
That is hardly a recipe for uniformity—and there is
no basis for believing it is what Congress had in mind
for the FSIA.
Respondent’s third argument against a plain
reading of Section 1606 seizes on the last three words
of the provision: “under like circumstances.”
Specifically, Respondent contends that while “like
circumstances” may exist when the commercial
activity exception applies, because a private party
cannot engage in “expropriation” there can never be
“like circumstances” under which a private party can
be compared to a sovereign defendant sued under the
expropriation exception. Brief in Opposition at 26–
27. But this argument proves too much. Respondent
is claiming that Congress intended Section 1606 to
apply to one category of FSIA claims (those based on
the commercial activity exception), but not apply to
an entire other category (those based on the
expropriation exception). There is not a scintilla of
evidence in the text of Section 1606, or elsewhere in
the FSIA, to support Respondent’s reading of the
statute. One would “expect more than simple
statutory silence” if Congress intended such an
inconsistent approach to apply to the different
exceptions to immunity which Congress established
in the parallel subsections of Section 1605(a) of the
 36

FSIA. Czyzewski v. Jevic Holding Corp., 137 S. Ct.

973, 984 (2017).17
Respondent’s strained reading of the FSIA also is
flatly inconsistent with Verlinden, B.V. v. Central
Bank of Nigeria, 461 U.S. 480 (1983). There, the
Court held: “When one of these [§ 1605(a)(1) or §
1605(a)(2)] or the other specified exceptions applies,
‘the foreign state shall be liable in the same manner
and to the same extent as a private individual under
like circumstances,’ § 1606.” Id. at 488–89 (emphasis
added).
CONCLUSION
Because the judgment below was based on the
Ninth Circuit’s application of its erroneous choice of
law rule, the judgment should be vacated, and the
case remanded for further proceedings.

17 Respondent’s interpretation also ignores that the

expropriation exception in Section 1605(a)(3) includes an
express commercial nexus requirement in order for it to apply to
foreign states and instrumentalities. Here, the lower courts
found TBC “engages in commercial activities in the United
States” including “some that encourage Americans to visit the
museum where the Pissarro is featured, and some that relate to
the painting itself.” Cassirer I, 616 F.3d at 1032, 1033–34.
 37

November 2021 Respectfully submitted,

SCOTT E. GANT DAVID BOIES

BOIES SCHILLER FLEXNER LLP Counsel of Record
1401 New York Avenue, NW BOIES SCHILLER FLEXNER LLP
Washington, DC 20005 333 Main Street
(202) 237-2727 Armonk, NY 10504
(914) 749-8200
SAMUEL J. DUBBIN, P.A.
DUBBIN & KRAVETZ LLP DAVID A. BARRETT
1200 Anastasia Avenue BOIES SCHILLER FLEXNER LLP
Suite 300 55 Hudson Yards
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(305) 371-4700 (212) 446-2300
LAURA W. BRILL
STEPHEN N. ZACK
NICHOLAS DAUM
ANDREW S. BRENNER
Kendall Brill & Kelly LLP
ROSSANA BAEZA
10100 Santa Monica Blvd.
BOIES SCHILLER FLEXNER LLP
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(310) 556-2700 100 SE Second Street
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(305) 539-8400

Attorneys for Petitioners