Of the District of New Hampshire, sitting by designation. *

 United States Court of Appeals

For the First Circuit

No. 09-1922

MUSEUM OF FINE ARTS, BOSTON,

Plaintiff, Appellee,

v.

CLAUDIA SEGER-THOMSCHITZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Barbadoro, District Judge. *

Thomas J. Hamilton, with whom J. Owen Todd, David H. Rich, and

Todd & Weld LLP were on brief, for appellant.

Simon J. Frankel, with whom Theodore P. Metzler, Covington &

Burling LLP, Robert J. Muldoon, Jr., Thomas Paul Gorman, and Sherin

& Lodgen LLP were on brief, for appellee.

October 14, 2010
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LIPEZ, Circuit Judge. Claudia Seger-Thomschitz, the sole

surviving heir of Austrian-Jewish art collector Oskar Reichel,

seeks to recover possession of Oskar Kokoschka's Two Nudes (Lovers)

("the Painting"), a valuable oil painting formerly owned by Reichel

and now held by the Museum of Fine Arts, Boston ("the MFA").

Seger-Thomschitz alleges that Reichel was forced to sell the

Painting under duress after Austria was annexed by Nazi Germany in

1938 and that good title never passed to the original purchaser or

to the MFA. The MFA counters that the original transaction was

valid and that Seger-Thomschitz's claim to the Painting is timebarred in any event.

After private negotiations between Seger-Thomschitz and

the MFA proved fruitless, the MFA commenced this action for a

declaratory judgment to "confirm its rightful ownership of the

painting." The district court granted summary judgment for the MFA

on statute of limitations grounds, holding that Seger-Thomschitz's

claims were time-barred. Having carefully reviewed the record, we

now affirm that statute of limitations ruling.

I.

Oskar Reichel was a successful physician and art

collector in Vienna during the first decades of the twentieth

century. Before World War I, Dr. Reichel came to know Oskar

Kokoschka, the celebrated Austrian expressionist, and became an

early patron and collector of Kokoschka's work. Dr. Reichel
At the time, Kallir was known professionally as Otto 1

Nirenstein or Otto Kallir-Nirenstein. He legally changed his name

to Kallir in 1933.

The parties have not attempted to convert the various 2

currencies noted in the opinion to present day dollars. We simply

report the sums as they appear in the record.

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acquired a number of Kokoschka paintings during that period,

including Two Nudes (Lovers), which he purchased from Kokoschka in

1914 or 1915. The Painting is a self-portrait of the artist in an

embrace with Viennese socialite (and widow of composer Gustav

Mahler) Alma Mahler, with whom Kokoschka was having a tempestuous

affair at the time. The MFA describes the Painting as "large and

striking," measuring more than three feet wide and five feet tall.

During the interwar period, Dr. Reichel lent the Painting

on three occasions to Otto Kallir, the proprietor of the Neue 1

Gallery in Vienna, for display and possible sale. Dr. Reichel and

Kallir agreed to a sale price for the Painting on at least two of

those occasions: $1,800 U.S. dollars (gross) in 1924 and 4,000

Austrian schillings (net to Dr. Reichel) in 1933. Although Dr. 2

Reichel was able to sell six of his eleven Kokoschka works between

the wars, he never sold the Painting, which remained in his

possession until 1939 along with four other Kokoschka works.

Conditions for Dr. Reichel and other Austrian Jews

rapidly deteriorated following the Anschluss –- the annexation of

Austria by the Third Reich in March 1938. Pursuant to Nazi

regulations, Dr. Reichel was forced to file a declaration in June
-4-

1938 listing all of the valuable property he owned. One expert

witness described the declaration as a "prelude to the formal Nazi

confiscation and seizure of all Jewish-owned property in Austria

and Germany." Proceeds from the sale of declared property had to

be deposited into a Nazi-controlled account and could be withdrawn

only in limited amounts. In his 1938 property declaration, Dr.

Reichel stated that he owned the Painting and four other Kokoschka

works. He declared the combined value of the Painting and another

work to be 250 Reichsmark.

Around the same time, Kallir, who was also Jewish,

transferred ownership of his gallery to his non-Jewish secretary

and moved to Paris. While Kallir was in Paris, Dr. Reichel agreed

to transfer his remaining five Kokoschka works, including the

Painting, to Kallir. The details of this transaction are sketchy.

It is not clear whether Dr. Reichel received any consideration for

the works at the time. Two contemporaneous notes indicate that

Kallir agreed to purchase the five paintings for a total of 800

Swiss francs. However, Dr. Reichel's son Raimund later said that

his father arranged for Kallir to send the proceeds of the

transaction to another son, Hans, who had already immigrated to the

United States. According to Raimund, Kallir sent Hans $250 for the

five paintings in 1940 or 1941, and Hans forwarded half that sum to

Raimund. The five Kokoschkas, including the Painting, were
Blodgett bequeathed another Kokoschka painting, Portrait 3

of a Youth -- which depicts Hans Reichel as a boy -- to her

daughter. Seger-Thomschitz claimed ownership of that painting as

well, but the U.S. District Court for the Eastern District of

Louisiana found that Blodgett's daughter had acquired title through

acquisitive prescription (a civil law doctrine analogous to adverse

possession) and that Seger-Thomschitz's claims were time-barred in

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transferred from Dr. Reichel to a shipping company in Vienna, then

exported to Paris.

Dr. Reichel and his wife Malvine suffered at the hands of

the Nazis. They were forced to close the business Dr. Reichel had

founded and to give up their family home and another property.

Their eldest son was deported to Lodz, Poland, where he was killed.

Malvine was sent to the Theresienstadt concentration camp in 1943,

and Dr. Reichel died of natural causes that same year. The two

younger sons had emigrated by that time -- Hans to the United

States and Raimund to Argentina. Malvine survived the war and

eventually joined Hans in the United States.

Meanwhile, Kallir had settled in New York, where he

opened the Galerie St. Etienne. He brought the Painting with him

and sold it to the Nierendorf Gallery for $1,500 in 1945. The

Nierendorf Gallery then sold the Painting to the E.A. Silberman

Galleries, which in turn sold the Painting to Sarah Reed Blodgett

in 1947 or 1948. Blodgett kept the painting for many years,

lending it out for exhibitions from time to time. She eventually

bequeathed the Painting to the MFA, which acquired possession in

1973. The Painting has been on almost continuous display at the 3
any event. See Dunbar v. Seger-Thomschitz, 638 F. Supp. 2d 659,

663-64 (E.D. La. 2009). The Fifth Circuit recently affirmed that

decision. See Dunbar v. Seger-Thomschitz, No. 09-30717, 2010 WL

3292678 (5th Cir. Aug. 20, 2010).

Hans died in 1979. His will designated Raimund as his 4

sole heir.

-6-

MFA since then, though it has been loaned out many times for

exhibitions in the United States and around the world.

Raimund moved back to Vienna in 1982. He executed a will

in 1989, in which he designated Seger-Thomschitz as his sole heir.

It is not clear how Raimund and Seger-Thomschitz knew each other.

She is described in one document as his "select-niece," but they

are not blood relatives. When Raimund died in 1997, SegerThomschitz became the sole surviving heir of Dr. Reichel.4

Seger-Thomschitz says that she "first learned that the

Nazis confiscated artworks from Oskar Reichel in the Fall of 2003

when the Museums of Vienna contacted her concerning their intent to

return to her as the sole heir of Oskar Reichel four artworks in

their collection by the artist Anton Romako . . . ." The

restitution of the Romako works was pursuant to a municipal

resolution that Vienna had passed in 1999, which in turn

implemented a 1998 national art restitution law. One municipal

document notes that "it seemed quite proper" to return the works to

Seger-Thomschitz because Dr. Reichel "had to sell [them] due to his

persecution as a Jew." Notably, Dr. Reichel appears to have sold
-7-

the Romako works around the same time that he sold the Painting,

and under similar circumstances. He sold three of the four Romakos

to the Neue Gallery in 1939 "for only small equivalent amounts,"

and he sold the fourth to the Neue Gallery in 1942. The gallery,

by then under the direction of Otto Kallir's former secretary,

subsequently sold the Romakos to the city.

Following her correspondence with the Museums of Vienna,

Seger-Thomschitz retained a Viennese attorney, Erich Unterer -- who

had also been Raimund Reichel's attorney -- "for purposes of

handling the restitution of any artworks that Oskar Reichel may

have lost due to Nazi persecution." Seger-Thomschitz and Unterer

initially thought that all of the artwork Dr. Reichel lost during

the Nazi era had been returned. In 2006, however, an American

attorney "began a colloquy" with Seger-Thomschitz and alerted her

to the possibility that other works formerly owned by Dr. Reichel

might be located outside Austria. Seger-Thomschitz retained the

attorney, whose firm then sent a letter to the MFA on March 12,

2007, demanding the return of the Painting.

When confronted with Seger-Thomschitz's claim to the

Painting, the MFA undertook "an exhaustive effort to research and

document the provenance of the Painting in order to ascertain

whether the claim . . . appeared valid or not." An MFA curator and

an independent provenance researcher spent eighteen months

researching the Painting's history, during which time they visited
-8-

approximately ten museums and governmental archives around the

world and corresponded with numerous other museums and archives.

Based on that research, the MFA concluded that the original

transfer of the Painting from Dr. Reichel to Kallir was valid and

that it would retain the Painting in its collection. It commenced

an action against Seger-Thomschitz in the United States District

Court for the District of Massachusetts on January 22, 2008,

seeking a declaratory judgment to "confirm its rightful ownership

of the painting." Seger-Thomschitz answered the complaint in May

of that same year and asserted counterclaims for conversion,

replevin, and other state law causes of action.

In September 2008, the MFA filed a motion for summary

judgment arguing that all of Seger-Thomschitz's counterclaims were

time-barred as a matter of law. Seger-Thomschitz opposed the

motion for summary judgment and also filed a motion to amend her

answer to add a theory of fraudulent concealment (which might have

extended the limitations period, see Mass. Gen. Laws ch. 260, § 12)

and an accompanying affidavit requesting the postponement of

summary judgment proceedings so that she could have extra time to

conduct discovery on the fraudulent concealment theory, see Fed. R.

Civ. P. 56(f).

The district court granted the motion for summary

judgment and denied the motion to amend. See Museum of Fine Arts,

Boston v. Seger-Thomschitz, No. 08-10097, 2009 WL 6506658 (D. Mass.
The judgment reads, in relevant part: "IT IS ORDERED AND 5

ADJUDGED that Defendant Dr. Claudia Seger-Thomschitz does not have

a valid claim to the painting Two Nudes (Lovers) by Oskar Kokoschka

because any claim by defendant to that painting is time-barred."

One commentator explains that "[s]orting the legitimate 6

transaction from the illegitimate sixty or seventy years later can

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June 12, 2009). Applying the three-year Massachusetts statute of

limitations applicable to tort and replevin actions, Mass. Gen.

Laws ch. 260, § 2A, the district court held that the causes of

action against the MFA accrued when the Reichel family and/or

Seger-Thomschitz discovered or should reasonably have discovered

the basis for their claims to the Painting. Museum of Fine Arts,

2009 WL 6506658 at *7. It then addressed both the Reichel family's

knowledge and Seger-Thomschitz's knowledge, concluding that all

parties should have known about the basis for their claims more

than three years before Seger-Thomschitz made her demand on the MFA

through her attorney's letter. It also denied the motion to amend.

Judgment was entered in favor of the MFA, and this appeal 5

followed.

II.

Only a narrow range of issues is presented on appeal.

Because the district court proceedings ended with summary judgment

on statute of limitations grounds, we are not asked to judge the

validity of the original transfer of the Painting from Dr. Reichel

to Kallir. On this record, given the passage of time, the validity

of the transfer "is not clear-cut." See id. at *6. The question 6
be extremely difficult":

Much art was Aryanized, or subjected to forced sales for

prices significantly below market value (if any value

ever actually materialized for the seller), and some art

was sold at infamous "Jew auctions," which are now

universally recognized as illegal. But some sales before

April 26, 1938, were legitimate and for fair market value

or close thereto. Some people were able to voluntarily

sell art on the open market, albeit not much modern art

after Hitler declared it "degenerate". Additionally,

because so many Jews were compelled to forfeit "flight

asset[s]" to pay for their passage out of the Reich, the

European art market reflected depressed prices.

Jennifer Anglim Kreder, The New Battleground of Museum Ethics and

Holocaust-Era Claims: Technicalities Trumping Justice or

Responsible Stewardship for the Public Trust?, 88 Or. L. Rev. 37,

49-50 (2009). Cf. Schoeps v. Museum of Modern Art, 594 F. Supp. 2d

461, 466 (S.D.N.Y. 2009) (holding, on facts similar to those

presented here, that a triable issue existed as to whether the

original transfer was voluntary under German law); Bakalar v.

Vavra, No. 08-5119, 2010 WL 3435375, at *10-15 (2d Cir. Sept. 2,

2010) (Korman, J., separately concurring) (discussing some of the

relevant legal considerations under New York law).

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we face, however, is whether Seger-Thomschitz's counterclaims,

meritorious or not, are time-barred as a matter of law.

The limitations question, in turn, has generated two

separate strands of argument in this litigation. The dominant

strand in the district court proceedings, and the one the MFA now

focuses on, concerns the accrual of Seger-Thomschitz's causes of

action under Massachusetts law. The district court held that the

claims accrued "decades before the filing of this lawsuit," and in

any event no later than the fall of 2003, when Seger-Thomschitz was

apprised of Vienna's decision to return the Romako works. Museum
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of Fine Arts, 2009 WL 6506658, at *8-9. Seger-Thomschitz argues

that there is a triable issue as to when she and/or the Reichels

were on notice of the basis for the claims, and she complains that

the district court should have allowed her more time to conduct

discovery. She also contends that even if the district court

correctly applied the Massachusetts discovery rule, the

circumstances of this case justify displacing the Massachusetts

limitations period with a federal common law laches defense. We

address each of these arguments in turn.

A. Massachusetts Discovery Rule

The district court and the parties have limited the

breadth of the statute of limitations inquiry in three important

ways. First, the district court held that the law of

Massachusetts, rather than the law of Austria, New York, or some

other jurisdiction, governs both the merits of Seger-Thomschitz's

counterclaims and the limitations period applicable to those

claims. The parties do not contest that determination on appeal.

Second, the district court held that, under Massachusetts law,

Seger-Thomschitz's counterclaims are governed by the three-year

limitations period applicable to tort and replevin actions, Mass.

Gen. Laws ch. 260, § 2A. Although Seger-Thomschitz argued below

that the six-year period applicable to contract claims should

apply, she has abandoned that position on appeal and so has

conceded that the three-year period applies.
A number of alternative approaches are noted in Ashton 7

Hawkins et al., A Tale of Two Innocents: Creating an Equitable

Balance Between the Rights of Former Owners and Good Faith

Purchasers of Stolen Art, 64 Fordham L. Rev. 49, 77 & nn. 174-75

(1995), and Steven A. Bibas, Note, The Case Against Statutes of

Limitations for Stolen Art, 103 Yale L.J. 2437, 2440-48 (1994).

They include variations on the doctrine of adverse possession,

rules tying accrual to the date the possessor acquired the

property, and the rule that a cause of action for conversion

against an innocent purchaser does not accrue until there has been

a demand for, and a refusal to surrender, the property. New York

explicitly follows the demand and refusal rule. See Solomon R.

Guggenheim Found. v. Lubell, 569 N.E.2d 426, 429 (N.Y. 1991). The

case law suggests that such a rule could potentially be applied in

Massachusetts as well. See Atl. Fin. Corp. v. Galvam, 39 N.E.2d

951, 952 (Mass. 1942); In re Halmar Distribs., Inc., 968 F.2d 121,

129 (1st Cir. 1992); see also W. Page Keeton et al., Prosser and

Keeton on Torts 93-94 (5th ed. 1984). Because Seger-Thomschitz's

concession removes these issues from our consideration, we do not

express any opinion on them.

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Third, under the applicable statute of limitations,

"actions of tort, actions of contract to recover for personal

injuries, and actions of replevin, shall be commenced only within

three years next after the cause of action accrues." Mass. Gen.

Laws ch. 260, § 2A. The district court analyzed the accrual

question by applying the so-called discovery rule, which provides

that "a cause of action accrues when 'an event or events have

occurred that were reasonably likely to put the plaintiff on notice

that someone may have caused her injury.'" Donovan v. Philip

Morris USA, Inc., 914 N.E.2d 891, 903 (Mass. 2009) (quoting Bowen

v. Eli Lilly & Co., 557 N.E.2d 739, 741 (Mass. 1990)). Although

the discovery rule is not the only possible way of measuring

accrual in a missing art case, the parties do not contest the 7
As the district court explained, a catalogue raisonné is 8

a comprehensive scholarly listing of an artist's works. Museum of

Fine Arts, 2009 WL 6506658, at *2 n.4.

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district court's decision to apply it here. We therefore follow

the district court's lead in applying the discovery rule to SegerThomschitz's counterclaims.

The party seeking the benefit of the discovery rule has

the burden of showing (1) that she lacked actual knowledge of the

basis for her claim and (2) that her lack of knowledge was

objectively reasonable. Koe v. Mercer, 876 N.E.2d 831, 836 (Mass.

2007). Courts applying the discovery rule in missing art cases

have tested the reasonableness of the claimant's lack of knowledge

by asking whether the claimant "acted with due diligence in

pursuing his or her personal property." O'Keeffe v. Snyder, 416

A.2d 862, 872 (N.J. 1980); accord Autocephalous Greek-Orthodox

Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278, 288-89

(7th Cir. 1990); Erisoty v. Rizik, No. 93-6215, 1995 WL 91406, at

*10 (E.D. Pa. Feb. 23, 1995).

In contrast to many missing art cases, the location of

the Painting has been no secret in this case. The Painting has

long been on public display at the MFA, a major international

museum. Since 2000, the MFA has listed the Painting in a

provenance database on its publicly accessible website. Several

published books and at least one catalogue raisonné of Kokoschka's

works identify the MFA as the current holder of the Painting. 8
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Finally, the Getty Provenance Index, a database of provenance

information that has been searchable on the internet since 1999,

notes that the Painting is part of the MFA's collection. There is

no question that the MFA's possession of the Painting has long been

discoverable with minimal diligence.

Then there is the question of when the Reichel family

should have known that Dr. Reichel formerly owned the Painting and

gave it up under conditions that may have amounted to duress. The

district court held that Hans, Raimund, and Malvine Reichel "had

ample notice of any possible claim to the Painting decades before

the filing of this lawsuit." Museum of Fine Arts, 2009 WL 6506658,

at *8. Among other things, the district court noted that Raimund

wrote several letters to art historians during the 1980s in which

he indicated that he remembered the Painting and knew the details

of its transfer to Kallir. See id. at *7-8. That knowledge, plus

the fact that the Reichel family sought compensation for some

artworks but not the Painting, led the district court to conclude

that the family's failure to lay claim to the Painting was not due

to ignorance about the availability of restitution. Id. at *7, 8

n.11.

There is also the separate question of Seger-Thomschitz’s

knowledge of the Painting, an issue somewhat obscured by her motion

to amend her counterclaim. She sought leave to amend while the

motion for summary judgment was pending in the district court,
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alleging that Kallir fraudulently concealed the details of Dr.

Reichel's sale of the Painting from the Reichel family. She also

filed an affidavit in accordance with Federal Rule of Civil

Procedure 56(f) asking for additional time to conduct discovery on

the fraudulent concealment theory. The district court denied the

motion, concluding that summary judgment was warranted even if the

allegations of fraudulent concealment were true. See Museum of

Fine Arts, 2009 WL 6506658, at *9-10. 

As Seger-Thomschitz acknowledged at oral argument, there

is no allegation that Kallir fraudulently concealed anything from

her. Hence the fraudulent concealment claim does not affect the

knowledge of Seger-Thomschitz herself, which the district court

cited as an alternative basis for granting summary judgment. We

focus our analysis on that ruling.

By her own admission, Seger-Thomschitz "learned that the

Nazis had confiscated artworks from Oskar Reichel in the Fall of

2003 when the Museums of Vienna contacted her concerning their

intent to return to her as the sole heir of Oskar Reichel four

artworks in their collection by the artist Anton Romako." That

information put her on notice that she might have a claim to other

artworks that were previously owned by Dr. Reichel. She retained

a Viennese attorney that same year "for purposes of handling the

restitution of any artworks that Oskar Reichel may have lost due to

Nazi persecution." Yet she did not demand the return of the
-16-

Painting from the MFA until March 12, 2007, well over three years

after she was contacted about the Romakos.

As we have already noted, and as the district court

explained more fully, provenance information for the Painting,

including the fact of Dr. Reichel's prior ownership, was available

on the MFA's website, in the Getty Provenance Index, in several

catalogues raisonnés of Kokoschka's works, and in a book published

in Vienna in 2003 that "included a picture of the Painting, traced

its provenance from Reichel to the MFA, included a transcription of

Reichel's April 1938 property declaration listing the Painting[,]

and described the sale of the work to Kallir and its subsequent

exhibition in the United States at the Galerie St. Etienne."

Museum of Fine Arts, 2009 WL 6506658, at *9. In addition, Dr.

Reichel's property declaration has been directly accessible to the

public since 1998. Although the availability of some of these

sources may not have been obvious to Seger-Thomschitz, who is a

nurse with no specialized training in Nazi-era art claims, that

fact does not excuse her delay. It was her burden under

Massachusetts law to discover from the relevant professional

communities whether she had a cognizable legal claim. Doe v.

Harbor Sch., Inc., 843 N.E.2d 1058, 1067 n.13 (Mass. 2006).

Indeed, she had an attorney available to her in 2003 who could have

helped her discover the basis for her claim.
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Seger-Thomschitz argues that "because the discovery rule

is fact intensive, juries -- rather than the court -- should decide

when plaintiffs knew or should have been aware of their claims."

That argument does not get her far. The issue of what a party knew

or should have known is often a question of fact to be submitted to

the jury. Mercer, 876 N.E.2d at 836. However, summary judgment

may be granted on a limitations defense if there is no genuine

dispute about the material facts, and the record evidence would not

permit a reasonable jury to return a verdict for the nonmoving

party. See Genereux v. Am. Beryllia Corp., 577 F.3d 350, 361 (1st

Cir. 2009); Doyle v. Shubs, 905 F.2d 1, 1 (1st Cir. 1990) (per

curiam). Cf. Mercer, 876 N.E.2d at 836 (applying a similar

standard under Massachusetts Rule of Civil Procedure). That is the

case here.

Seger-Thomschitz did not submit her own affidavit to

explain what she was doing between 2003 and 2007, a curious

omission given that she is in the best position to account for that

period. Her American attorney, whom she retained in 2006,

submitted an affidavit in connection with her Rule 56(f) request in

which he stated that Seger-Thomschitz and her Austrian attorney

"had come to believe that all of the artwork that Oskar Reichel

lost due to Nazi persecution had remained in Vienna and had been

restituted." Of course, in light of all the publicly available

information about the provenance of the Painting, a mistake of that
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sort does not delay the commencement of the limitations period.

Any reasonable jury confronted with the summary judgment record

would conclude that Seger-Thomschitz's causes of action accrued no

later than the fall of 2003, when she learned that the Nazis had

confiscated artworks from Dr. Reichel, and could then, with

reasonable diligence, have discovered her claim to the Painting.

Because she did not make a demand on the MFA until March 12, 2007,

more than three years after her causes of action accrued, summary

judgment was properly granted on the MFA's limitations defense.

B. Federal Preemption

Seger-Thomschitz argues in the alternative that the

Massachusetts statute of limitations should not be applied at all.

She contends that her case implicates important federal interests,

and so should be governed by federal timeliness principles based in

equity rather than the more rigid Massachusetts limitations period.

1. MFA's Tax-Exempt Status

In the district court and in her opening brief on appeal,

Seger-Thomschitz focused much of her preemption argument on the

MFA's status as a tax-exempt organization under section 501(c)(3)

of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). She argues

that the application of a state limitations period in this case

would frustrate the "many discrete and compelling federal interests

that inhere when judicial claims to recover Nazi-confiscated

artworks are brought against U.S. tax-exempt public trustees such
"Laches requires proof of (1) lack of diligence by the 9

party against whom the defense is asserted, and (2) prejudice to

the party asserting the defense." Costello v. United States, 365

U.S. 265, 282 (1961).

-19-

as the MFA." In lieu of the Massachusetts limitations period, she

would have us apply the more flexible doctrine of laches as a

matter of federal common law, thereby placing the burden on the MFA

to prove the lack of diligence of a claimant such as SegerThomschitz and the prejudice experienced by the MFA because of

Seger-Thomschitz's delay in asserting her claims. The logic of 9

her position would entail displacing state limitations periods in

favor of a federal laches rule whenever a claim for restitution of

a Nazi-era artwork was made against a tax-exempt organization.

The Supreme Court has warned that the judiciary should

create special federal common law rules in "few and restricted"

cases. O'Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994) (internal

citations and quotation marks omitted). "'Whether latent federal

power should be exercised to displace state law is primarily a

decision for Congress,' not the federal courts." Atherton v. FDIC,

519 U.S. 213, 218 (1997) (quoting Wallis v. Pan Am. Petroleum

Corp., 384 U.S. 63, 68 (1966)). To justify the application of a

federal common law rule, the proponent must typically show that

there is a "significant conflict between some federal policy or

interest and the use of state law." Id. (internal quotation marks

omitted).
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Seger-Thomschitz contends that the federal government has

a compelling interest in "ensuring that charitable organizations

that operate as tax exempt entities provide the public with the

benefits for which their tax exemptions were granted." Tax-exempt

museums, in her view, have "undermine[d] the rationale for their

tax exemptions" by consistently failing to investigate the

provenance of the artworks they acquire, thereby facilitating

commerce in stolen artworks and other contraband. Without further

elaboration, she concludes, "Federal courts therefore are empowered

to formulate appropriate rules of accrual in lawsuits seeking to

reclaim Nazi-confiscated artworks in the possession of U.S. taxexempt museums that will encourage these museums to operate

lawfully."

On this record, Seger-Thomschitz's argument asks too much

of the federal courts and the federal tax code. Tax-exempt

organizations, no less than non-exempt organizations, are already

subject to applicable state law. See, e.g., Abramian v. President

& Fellows of Harvard Coll., 731 N.E.2d 1075 (Mass. 2000) (upholding

judgment against tax-exempt university under state employment law).

Indeed, as the MFA notes, its trustees are subject to common law

fiduciary duties relevant to the accusations of wrongdoing that

Seger-Thomschitz has made in this case. The principal

distinguishing characteristic of a section 501(c)(3) organization

is that, by "legislative grace," it is not required to pay federal
An important collateral benefit is that donations to a 10

501(c)(3) organization are tax-deductible. See Bob Jones Univ. v.

Simon, 416 U.S. 725, 727-28 (1974).

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taxes on its income. IHC Health Plans, Inc. v. Comm'r, 325 F.3d 10

1188, 1193-94 (10th Cir. 2003) (internal quotation marks omitted).

Although 501(c)(3) status is conditioned on the

organization's adherence to certain federally prescribed standards,

see Bob Jones Univ. v. United States, 461 U.S. 574, 592 (1983),

these standards do not justify a free-ranging superintendence by

the federal courts. If a 501(c)(3) organization fails to meet its

obligations under the tax code, the law provides a remedy: the

organization's tax-exempt status can be revoked. See Rev. Proc.

2010-9, 2010-2 I.R.B. 258; Branch Ministries v. Rossotti, 211 F.3d

137, 141-42 (D.C. Cir. 2000). In addition, egregious abusers of

section 501(c)(3) may be subject to civil or criminal penalties.

See, e.g., United States v. Fumo, 628 F. Supp. 2d 573, 593-95 (E.D.

Pa. 2007). The federal interest in ensuring that tax-exempt

organizations "demonstrably serve and be in harmony with the public

interest," Bob Jones Univ., 461 U.S. at 592, is adequately

protected through these mechanisms and others. We perceive no need

to create additional federal common law rules to punish and deter

bad behavior by tax-exempt organizations, as Seger-Thomschitz

proposes.

In sum, Seger-Thomschitz has not shown that application

of the Massachusetts statute of limitations to the Massachusetts
The MFA contends that Seger-Thomschitz's foreign affairs 11

preemption argument is forfeited because it was raised for the

first time in her reply brief. That is not correct. SegerThomschitz specifically argued for foreign affairs preemption in

her opening brief. She then developed that argument further in her

reply brief. There was no forfeiture.

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causes of action in this case would cause a "significant conflict

with, or threat to," the federal interests and policies embodied in

section 501(c)(3). Atherton, 519 U.S. at 225. We therefore

decline her invitation to replace, on that basis, the Massachusetts

limitations period with a federal common law laches defense.

2. Foreign Affairs Preemption

Seger-Thomschitz also argues that the Massachusetts

statute of limitations should be set aside because it conflicts

with the federal government's foreign policy. She grounds her 11

argument in a federal statute and several international

declarations signed by the executive branch that touch on the

subject of Nazi-confiscated art. She correctly recognizes that the

statute and the declarations are merely hortatory, and so do not

create any substantive legal rules capable of directly preempting

state law. See Hawaii v. Office of Hawaiian Affairs, 129 S. Ct.

1436, 1443 (2009). Nevertheless, she argues that they constitute

evidence of a federal policy disfavoring the application of rigid

limitations periods to claims for Nazi-looted artwork. That

federal policy, she contends, is itself capable of preempting the

Massachusetts statute of limitations. 
-23-

In support of her argument, Seger-Thomschitz relies on

American Insurance Association v. Garamendi, 539 U.S. 396 (2003).

The Supreme Court held in Garamendi that "state law must give way"

when it is in "clear conflict" with an "express federal policy" in

the foreign affairs context. 539 U.S. at 421, 425. At issue was

California's Holocaust Victim Insurance Relief Act (HVIRA), a law

that required insurance companies doing business in the state to

disclose information about policies sold in Europe during the Nazi

era. Id. at 401. A group of insurers challenged the law on the

ground that it interfered with the President's policy, expressed in

executive agreements and statements by executive branch officials,

encouraging voluntary settlement of Nazi-era insurance claims

through the auspices of the International Commission on Holocaust

Era Insurance Claims. Id. at 413, 421. The Supreme Court agreed,

concluding that California's aggressive disclosure requirements

were an "obstacle to the success of the National Government's

chosen 'calibration of force' in dealing with the Europeans using

a voluntary approach." Id. at 425 (citation omitted). The Court

held that the "clear conflict" between the state statute and an

"express federal policy" was sufficient to justify preemption. Id.

It added: 

If any doubt about the clarity of the conflict

remained, however, it would have to be

resolved in the National Government's favor,

given the weakness of the State's interest,

against the backdrop of traditional state

legislative subject matter, in regulating
We recognize that the Supreme Court's decision in 12

Medellín v. Texas, 552 U.S. 491 (2008), may have cast doubt on the

continuing vitality of Garamendi. See, e.g., A. Mark Weisburd,

Medellín, the President's Foreign Affairs Power and Domestic Law,

28 Penn St. Int'l L. Rev. 595, 625 (2010) ("One fairly clear

consequence of Medellín is that the very broad language used in

American Ins. Ass'n v. Garamendi no longer carries weight."

(footnote omitted)). But see In re Assicurazioni Generali, S.P.A.,

592 F.3d 113, 119 n.2 (2d Cir. 2010) (concluding that Medellín is

consistent with a broad understanding of Garamendi); Movsesian v.

Victoria Versicherung AG, 578 F.3d 1052, 1059 (9th Cir. 2009)

(acknowledging Medellín but nonetheless applying Garamendi

broadly). We express no opinion on that issue. Even if the

Garamendi doctrine retains its full force, it does not aid SegerThomschitz in this case.

Seger-Thomschitz also relies on what she characterizes as 13

"statements of high ranking U.S. officials." However, the first

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disclosure of European Holocaust-era insurance

policies in the manner of HVIRA.

Id.

We conclude that Garamendi is inapposite for two

reasons. First, there is no comparably express federal policy 12

bearing on the issues in this case. Second, even if there were

such a policy, the Massachusetts statute of limitations would not

be in clear conflict with it.

As evidence of an express federal policy disfavoring the

application of limitations periods to claims for Nazi-looted

artwork, Seger-Thomschitz directs our attention to four sources of

law: the Holocaust Victims Redress Act of 1998, the Washington

Conference Principles on Nazi-Confiscated Art, the Vilnius Forum

Declaration, and the Terezín Declaration on Holocaust Era Assets

and Related Issues. The Holocaust Victims Redress Act is a 13
statement -- remarks by former Ambassador Stuart Eisenstadt at the

Prague Holocaust Era Assets Conference -- was delivered in the

speaker's personal capacity and so does not represent the position

of the executive branch. The second statement -- remarks by

Ambassador J. Christian Kennedy at the State Department in 2009 --

was stricken from the record for procedural reasons and is not

otherwise publicly available. Neither statement can be used to

support Seger-Thomschitz's preemption argument, and she has not

directed our attention to any other statements of executive branch

policy akin to the official letters and testimony that the Supreme

Court considered in Garamendi.

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federal statute, and the other three documents are executive

agreements -- international declarations signed by the executive

branch on behalf of the United States, but not approved by the

Senate (as treaties) or by the entire Congress (as congressionalexecutive agreements).

The four documents are, for the most part, phrased in

general terms evincing no particular hostility toward generally

applicable statutes of limitations. The Holocaust Victims Redress

Act, for example, merely expresses the "sense of the Congress" that

"all governments should undertake good faith efforts to facilitate

the return" of Nazi-confiscated property. Pub. L. No. 105-158, §

202, 112 Stat. 15, 17-18 (1998). Similarly, the Washington

Principles state that when Nazi-confiscated artwork is identified,

"steps should be taken expeditiously to achieve a just and fair

solution, recognizing this may vary according to the facts and

circumstances surrounding a specific case." U.S. Dep't of State,

The Washington Conference on Holocaust Era Assets, Washington

Conference Principles on Nazi-Confiscated Art (Dec. 3, 1998),
-26-

http://www.state.gov/www/regions/eur/holocaust/heacappen.pdf. The

Vilnius Forum Declaration "asks all governments to undertake every

reasonable effort to achieve the restitution of cultural assets

looted during the Holocaust" and recognizes that "solutions may

vary according to the differing legal systems among countries and

the circumstances surrounding a specific case." Vilnius

International Forum on Holocaust-Era Looted Cultural Assets,

Vilnius Forum Declaration (Oct. 5, 2000), available at

http://www.lootedartcommission.com/vilnius-forum. We discern no

express federal policy disfavoring statutes of limitations in the

general language of those documents.

The Terezín Declaration is more on point. The parties to

the Declaration stated, in relevant part:

[W]e urge all stakeholders to ensure that

their legal systems or alternative processes,

while taking into account the different legal

traditions, facilitate just and fair solutions

with regard to Nazi-confiscated and looted

art, and to make certain that claims to

recover such art are resolved expeditiously

and based on the facts and merits of the

claims and all the relevant documents

submitted by all parties. Governments should

consider all relevant issues when applying

various legal provisions that may impede the

restitution of art and cultural property, in

order to achieve just and fair solutions, as

well as alternative dispute resolution, where

appropriate under law.

Prague Holocaust Era Assets Conference, Terezín Declaration (June

30, 2009), http://www.holocausteraassets.eu/program/conferenceproceedings/declarations. This statement reflects a clear
-27-

preference that Nazi-era art disputes should be resolved "based on

the facts and the merits" rather than on legal technicalities.

Nevertheless, the language is too general and too hedged to be used

as evidence of an express federal policy disfavoring statutes of

limitations. A preference for the resolution of claims on the

merits does not mean that all time limitations should be abandoned.

Moreover, the Terezín Declaration recognizes that "various legal

provisions that may impede the restitution of art and cultural

property" will continue to be applied. The proposed solution is

for governments applying such provisions to "consider all relevant

issues . . . in order to achieve just and fair solutions." None of

this language is sufficiently clear and definite to constitute

evidence of an express federal policy against the applicability of

state statutes of limitations to claims for the recovery of lost,

stolen, or confiscated art.

Even if there were an express federal policy disfavoring

overly rigid timeliness requirements, the Massachusetts statute of

limitations would not be in "clear conflict" with that policy. The

Supreme Court indicated in Garamendi that it is appropriate to

"consider the strength of the state interest, judged by standards

of traditional practice, when deciding how serious a conflict must

be shown before declaring the state law preempted." 539 U.S. at

420. The enactment of generally applicable statutes of limitations

is a traditional state prerogative, and states have a substantial
-28-

interest in preventing their laws from being used to pursue stale

claims. In that sense, the statute in this case is unlike the law

in Garamendi, which "effectively single[d] out only policies issued

by European companies, in Europe, to European residents, at least

55 years ago." Id. at 425-26 (distinguishing HVIRA from a

"generally applicable 'blue sky' law").

Moreover, as our earlier discussion makes clear, the

Massachusetts statute of limitations, as tempered by the discovery

rule, is flexible and sensitive to the facts of each case. It

strikes a reasonable balance between restitution and repose,

permitting a claimant who has diligently pursued her rights to have

her day in court. Indeed, because a claimant in a missing or

confiscated art case may be able to defeat summary judgment by

demonstrating that she diligently pursued her property, the

Massachusetts discovery rule may not be that different in practice

from the federal common law laches defense that Seger-Thomschitz

would like us to apply. The Massachusetts statute of limitations

is not preempted under Garamendi. Accord Dunbar v.

Seger-Thomschitz, No. 09-30717, 2010 WL 3292678, at *4 (5th Cir.

Aug. 20, 2010) (rejecting a similar argument).

III.

Statute of limitations defenses, even when tempered by a

discovery rule, may preclude otherwise meritorious claims.

Inescapably, statutes of limitations are somewhat arbitrary in
-29-

their choice of a particular time period for asserting a claim.

Yet statutes of limitations cannot be fairly characterized as

technicalities, and they serve important interests:

Statutes of limitations, which are found and

approved in all systems of enlightened

jurisprudence, represent a pervasive

legislative judgment that it is unjust to fail

to put the adversary on notice to defend

within a specified period of time and that the

right to be free of stale claims in time comes

to prevail over the right to prosecute them.

These enactments are statutes of repose; and

although affording plaintiffs what the

legislature deems a reasonable time to present

their claims, they protect defendants and the

courts from having to deal with cases in which

the search for truth may be seriously impaired

by the loss of evidence, whether by death or

disappearance of witnesses, fading memories,

disappearance of documents, or otherwise. 

United States v. Kubrick, 444 U.S. 111, 117 (1979) (internal

quotation marks and citations omitted).

Precisely because they do not address the merits of a

claim, statutes of limitations do not vindicate the conduct of

parties who successfully invoke them. Although we make no judgment

about the legality of the MFA's acquisition of the Painting in

1973, we note the MFA's own disclosure that, when confronted with

Seger-Thomschitz's claim, it initiated a provenance investigation

for the Painting that it had not done before. The timing of that

investigation may have been legally inconsequential in this case.

However, for works of art with unmistakable roots in the Holocaust

era, museums would now be well-advised to follow the guidelines of
-30-

the American Association of Museums: "[M]useums should take all

reasonable steps to resolve the Nazi-era provenance status of

objects before acquiring them for their collections -- whether by

purchase, gift, bequest, or exchange." American Association of

Museums, Guidelines Concerning the Unlawful Appropriation of

Objects During the Nazi Era (Nov. 1999),

http://www.aam-us.org/museumresources/ethics/nazi_guidelines.cfm .

AFFIRMED.