FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAREI VON SAHER,

Plaintiff-Appellant,

v.

NORTON SIMON MUSEUM OF ART AT 

PASADENA; NORTON SIMON ART 

FOUNDATION,

Defendants-Appellees.

No. 16-56308

D.C. No.

2:07-cv-02866-

JFW-SS

OPINION

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted February 14, 2018

Pasadena, California

Filed July 30, 2018

Before: M. Margaret McKeown and Kim McLane 

Wardlaw, Circuit Judges, and James Donato,* District 

Judge.

 * The Honorable James Donato, United States District Judge for the 

Northern District of California, sitting by designation.
2 VON SAHER V. NORTON SIMON MUSEUM OF ART

Opinion by Judge McKeown;

Concurrence by Judge Wardlaw

SUMMARY**

Act of State Doctrine

The panel affirmed the district court’s summary 

judgment in favor of the Norton Simon Museum of Art at

Pasadena in an action by Marei von Saher to recover two oil 

paintings that were among a group of artworks taken by 

Nazis in a forced sale from her father-in-law during World 

War II.

Following the war, the Allied Forces returned the 

paintings to the Dutch government. In 1966, the Dutch 

government sold the paintings to George StroganoffSherbatoff, who in turn sold the paintings to the Norton 

Simon Museum in 1971. In the late 1990s, von Saher sought 

to recover the paintings from the Dutch Government. The 

Dutch Court of Appeals denied von Saher’s petition for 

restoration of rights in the paintings.

The panel applied the act of state doctrine, which 

requires that the acts of foreign sovereigns taken within their 

own jurisdictions shall be deemed valid. The panel held that 

von Saher’s theory would require the court to invalidate 

official acts of the Dutch government. Specifically, for van 

Saher to succeed: the Dutch government’s conveyance of the 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
VON SAHER V. NORTON SIMON MUSEUM OF ART 3

paintings to Stroganoff would need to be deemed legally 

inoperative; and the panel would need to disregard both the 

Dutch government’s 1999 decision not to restore von 

Saher’s rights to the paintings, and its later statement that her 

claim to the paintings had “been settled.” The panel 

concluded that the Dutch government’s transfer of the 

paintings and its later decisions about the conveyance were 

“sovereign acts” requiring application of the act of state 

doctrine.

The panel held that exceptions to the act of state doctrine 

did not apply. The panel also held that the policies 

underlying the act of state doctrine supported its application 

in this case.

Concurring, Judge Wardlaw agreed that the Dutch 

government’s conveyance to Stroganoff was an official act 

of the Netherlands. Judge Wardlaw wrote that the case 

should not have been litigated through the summary 

judgment stage, however, because the district court correctly 

dismissed the case on preemption grounds in March 2012.

COUNSEL

Lawrence M. Kaye (argued), Howard N. Spiegler, Frank K. 

Lord IV, and Darlene B. Fairman, Herrick Feinstein LLP,

New York, New York, for Plaintiff-Appellant.

Fred Anthony Rowley Jr. (argued), Justin P. Raphael, Eric 

P. Tuttle, Mark R. Yohalem, Luis Li, and Ronald L. Olson, 

Munger Tolles & Olson LLP, Los Angeles, California, for 

Defendants-Appellees.
4 VON SAHER V. NORTON SIMON MUSEUM OF ART

Stanley W. Levy, Benjamin G. Shatz, and Connie Lam, 

Manatt Phelps & Phillips LLP, Los Angeles, California; 

Michael Bazyler, Dale E. Fowler School of Law, Chapman 

University, Orange, California; for Amici Curiae The 1939 

Society, Bet Tzedek, and Jewish Historical Museum.

Owen C. Pell and Lynn Kaiser, White & Case LLP, New 

York, New York; Agnes Peresztegi, Of Counsel, Soffer 

Avocats, Paris, France; for Amicus Curiae Commission for 

Art Recovery.

Susan J. Kohlmann, Irene M. Ten Cate, and Ava U. 

McAlpin, Jenner & Block LLP, New York, New York, for 

Amicus Curiae Professor Leonard F.M. Besselink.

Thomas R. Kline and L. Eden Burgess, Cultural Heritage 

Partners PLLC, Washington, D.C., for Amici Curiae 

Members of Congress E. Engel and J. Nadler and Former 

Members of Congress M. Levine and R. Wexler.
VON SAHER V. NORTON SIMON MUSEUM OF ART 5

OPINION

McKEOWN, Circuit Judge:

Hanging in the balance are Renaissance masterpieces 

that have been on display in California for nearly half a 

century. The dispute over their ownership, however, dates 

back to World War II, when the Nazis invaded the 

Netherlands.

Marei von Saher (“von Saher”) seeks to recover two oil 

paintings that were among a group of artworks taken by 

Nazis in a forced sale from her father-in-law. Following the 

war, the Allied Forces returned the paintings to the Dutch 

government, which established a claims process for 

recouping Nazi-looted property. Von Saher’s family, on the 

advice of counsel, chose not to file a claim on the paintings 

within the allotted time. In 1966, the Dutch government sold 

the two paintings to George Stroganoff-Sherbatoff 

(“Stroganoff”) after Stroganoff filed a restitution claim 

alleging that he was the rightful owner. Stroganoff then sold 

the paintings in 1971 to the Norton Simon Art Foundation 

and the Norton Simon Museum of Art at Pasadena 

(collectively, “the Museum”). The paintings have been on 

display ever since.

In the late 1990s, von Saher tried to recover from the 

Dutch government all paintings included in the forced sale. 

The Dutch Court of Appeals issued a final decision, denying 

von Saher’s petition for restoration of rights in the paintings. 

A few years later, the Dutch government nonetheless 

decided to return to von Saher the paintings that were still in 

its possession, but did not return the two paintings it had sold 

to Stroganoff because they were in California. Von Saher 

sued the Museum in federal court soon after.
6 VON SAHER V. NORTON SIMON MUSEUM OF ART

This marks the third time that we have considered von 

Saher’s case, having most recently remanded for further 

factual development. The district court granted summary 

judgment to the Museum, concluding that the Netherlands 

possessed good title under Dutch law when it sold the 

paintings to Stroganoff.

We affirm, but not under Dutch law. Because the act of 

state doctrine deems valid the Dutch government’s 

conveyance to Stroganoff, the Museum has good title. 

Holding otherwise would require us to nullify three official 

acts of the Dutch government—a result the doctrine was 

designed to avoid.

Background

THE PAINTINGS

At the center of this controversy are two Renaissance 

masterworks— “Adam” and “Eve”—painted by Lucas 

Cranach the Elder (“the paintings” or “the Cranachs”). In 

1931, Dutch art dealer Jacques Goudstikker purchased the 

Cranachs from the Soviet Union at an auction in Berlin 

called “the Stroganoff Collection.”1 The paintings became 

the property of the art dealership in which Goudstikker was 

principal shareholder (“the Goudstikker Firm” or “the 

Firm”).

 1 The district court found that the Stroganoff family “never owned” 

the Cranachs, a fact contested by the Museum and muddied by the record 

evidence. While we need not determine whether the Stroganoff family 

once owned the Cranachs, the evidence that it even possibly owned the 

paintings bears on whether Stroganoff’s assertion of ownership to the 

Dutch government in the 1960s presented a colorable restitution claim, 

and hence prompted an act of state.
VON SAHER V. NORTON SIMON MUSEUM OF ART 7

In May 1940, as the Nazis invaded the Netherlands, 

Goudstikker and his family fled to South America, fearing 

persecution and leaving behind his gallery of over 1,200 

artworks. Tragically, Goudstikker died on the boat trip. His 

wife Desi, who acquired Goudstikker’s shares in the Firm, 

maintained a blackbook listing all the paintings in the 

gallery, including the Cranachs.

After Goudstikker’s death, Nazi Reichsmarschall 

Hermann Göring and his cohort Alois Miedl “bought” the 

Goudstikker Firm and its assets through a series of 

involuntary written agreements with a remaining employee 

of the Firm.2 These “forced sales” proceeded in two parts: 

Miedl acquired the Firm, its showroom, some of its 

paintings, and the family’s villa and castle for 550,000 

guilders (“the Miedl transaction”). Göring purchased other 

artworks, including the Cranachs, for two million guilders—

the equivalent of over 20 million current U.S. dollars (“the 

Göring transaction”).

After World War II, the Allied Forces in Germany 

recovered much of the art collection taken from Goudstikker 

by Göring, including the Cranachs. The Allies turned the 

paintings over to the Dutch government in 1946.

THE DUTCH RESTITUTION SYSTEM

During and after the war, the Dutch government created 

systems of restitution and reparations for losses incurred by 

its citizens at the hands of the Nazis. The pillars of those 

 2 At various times until the Netherlands and the Firm reached a 

settlement agreement in 1952, certain Dutch authorities took the position 

that the Göring and Miedl transactions were voluntary. That idea has 

long since been dispelled, and the forced nature of the transaction is 

uncontested by the parties.
8 VON SAHER V. NORTON SIMON MUSEUM OF ART

systems were established in a series of royal decrees. We 

provide a sketch of those decrees because they bear on our 

decision to apply the act of state doctrine.

Royal Decree A6 and the 1947 CORVO Decision

The Dutch government enacted Royal Decree A6 in June 

1940, shortly after the Nazis invaded the Netherlands. The 

decree prohibited and automatically nullified agreements 

with the enemy. A6 vested authority in a special committee 

(Commissie Rechtsverkeer in Oorlogstijd or “CORVO”) to 

“revoke the invalidity” of such transactions “by declaring the 

agreement or act still effective.”

In 1947, CORVO revoked the automatic invalidity of 

agreements with the enemy for property that was recuperated 

to the Netherlands by the Allies. As CORVO explained, A6 

was enacted to protect Dutch property interests from the 

Nazis. But once property was returned to the Dutch 

government, “the initial interest of such nullity is 

eliminated.” After property was returned to the Netherlands, 

the original Dutch owners could petition for a restoration of 

rights in the property under Royal Decree E100.

Royal Decree E100

The Dutch government enacted Royal Decree E100 in 

1944. The decree established a Council for Restoration of 

Rights (“the Council”), with broad and exclusive authority 

to declare null and void, modify, or revive “any legal 

relations that originated or were modified during enemy 

occupation of the [Netherlands].”

The Council had the exclusive power to order the return 

of property and to restore property rights to the original 

Dutch owners. The Council consisted of several 
VON SAHER V. NORTON SIMON MUSEUM OF ART 9

departments, including a Judicial Division. The restitution 

decisions of the other departments were appealable to the 

Judicial Division, whose judgments were final and nonappealable, and carried the force of a court judgment. 

Petitioners could bring claims for restoration of rights 

directly to the Judicial Division, or bring claims to other 

departments and appeal adverse decisions to the Judicial 

Division. Upon enactment of E100, the Council supplanted 

the Dutch common-law courts as the venue for adjudging 

wartime property rights, as those courts became 

“incompetent to hear and decide on claims or requests that 

the Council is competent to handle by virtue of this Decree.”

The Dutch government set a July 1, 1951 deadline for 

claimants to file E100 restoration-of-rights petitions with the 

Council. After that deadline, the Council could still order 

restoration of rights of its own accord, but claimants were no 

longer entitled to demand restitution. Usually, if an original 

owner received money or other consideration in exchange 

for property taken by the Nazis, the original owner was 

required to return the sale price to the Dutch government in 

order to obtain restitution.

Decree E100 also authorized the Council to dispose of 

property of “unknown owners”: “If the owner has not come 

forward within a period to be further determined by Us, 

items that have not yet been sold shall be sold . . . .” The 

Dutch government set the deadline for owners “com[ing] 

forward” at September 30, 1950.

Royal Decree E133

The Dutch government enacted Royal Decree E133 in 

1944 to expropriate enemy assets in order to compensate the 

Netherlands for losses it suffered during World War II. 

Article 3 of E133 provided that within the Netherlands, all 
10 VON SAHER V. NORTON SIMON MUSEUM OF ART

“[p]roperty, belonging to an enemy state or to an enemy 

national, automatically passes in ownership to the State with 

the entering into force of this decree . . . .” The 

expropriation of enemy property was automatic and 

continued until July 1951, when the Netherlands ceased 

hostilities with Germany.

VON SAHER’S FAMILY DECLINED TO SEEK 

RESTORATION OF RIGHTS IN THE CRANACHS

After the war, the Dutch government seized what 

previously had been the Goudstikker Firm (now the Miedl 

Firm) as an enemy asset and appointed new administrators. 

Goudstikker’s widow (and von Saher’s mother-in-law) Desi 

returned to the Netherlands to pursue restitution.

With Desi and new leadership in place, on the strategic 

advice of its business advisers and legal counsel, the 

Goudstikker Firm decided not to pursue restitution for the 

Göring transaction. Specifically, the Firm believed that 

seeking restitution would have “left [the business] with a 

large number of works of art that are difficult to sell”; “led 

to the revival of an art dealership with all pertinent negative 

consequences,” including “find[ing] a suitable person to run 

such a business”; and “led to a considerable reduction in the 

[business’s] liquid assets.” The Firm’s attorney Max Meyer 

laid out his advice in a memorandum to the Firm. A.E.D. 

von Saher, who later married Desi, confirmed that “the 

shareholders still considered to also conduct legal redress 

with respect to the Goering contract. Mr. Meyer and Mr. 

Lemberger strongly advised against this.”

In 1949, Meyer wrote to the Dutch agency holding the 

Göring artworks to express that the Firm was releasing any 

claim it had to those pieces: “I would also like to take this 

opportunity to confirm that the Art Trade J. Goudstikker 
VON SAHER V. NORTON SIMON MUSEUM OF ART 11

LLC waives the right to file for restoration of rights 

regarding goods acquired by Goering . . . .” The 

memorandum accompanying that letter showed that Meyer 

was aware that he could have filed a claim to restore rights 

in both the Göring and Miedl transactions, because they 

would have been voidable under E100. In proceedings 

before the modern Dutch Restitution Committee, Marei von 

Saher conceded that “Goudstikker made a deliberate and 

well-considered decision not to seek restoration of rights 

with respect to the goods that had been acquired by Göring.”

By contrast, the Firm decided to pursue restitution for the 

Miedl transaction, including other artworks and real estate. 

Just shy of the July 1, 1951 E100 deadline, the Firm filed 

with the Council a petition for restoration of rights 

concerning the Miedl transaction only. In August 1952, the 

Firm and the Dutch government settled the Firm’s restitution 

claims.3

The Dutch Government Sold the Cranachs to 

Stroganoff, Who Sold Them to the Museum

In the 1960s, Stroganoff petitioned the Dutch 

government, asserting that he was the rightful owner of the 

Cranachs because the Soviet government had stolen them 

from him. In 1966, the parties reached an amicable 

settlement in which Stroganoff bought “back” the paintings 

from the Netherlands in exchange for dropping his 

restitution claims.

 3 The parties dispute whether the 1952 settlement released claims 

involving both the Miedl and the Göring transactions. The district court 

did not make a factual finding on the issue, and the answer does not affect 

our resolution of this appeal.
12 VON SAHER V. NORTON SIMON MUSEUM OF ART

Through his agent, in 1971 Stroganoff sold the Cranachs 

to the Museum for $800,000. The Cranachs have been on 

public display since that time.

VON SAHER PURSUED RESTITUTION FROM THE DUTCH 

GOVERNMENT

In the 1990s, Marei von Saher—the only living heir of 

Jacques and Desi Goudstikker—began seeking restitution 

for artworks that the Firm “sold” to Göring. As part of those 

efforts, von Saher filed an E100 petition for restoration of 

rights in the Dutch Court of Appeals (the legal successor to 

the Council for Restoration of Rights) for all paintings 

acquired by Göring, including the Cranachs. The Court of 

Appeals denied the petition, concluding that the Firm “made 

a conscious and well considered decision to refrain from 

asking for restoration of rights with respect to the Göring 

transaction.” Von Saher appeared to be at a dead end.

But in 2001, the Netherlands reevaluated its 

“bureaucratic” restitution process, transforming its mission 

from a “purely legal approach” to “a more moral policy 

approach.” In doing so, the Dutch government created a new 

Restitution Committee, to advise the State Secretary of 

Education, Culture and Science on restitution claims for 

property that was still in the possession of the Dutch 

government. Embracing the change in forum, von Saher 

petitioned the State Secretary for over 200 artworks that the 

Firm “sold” to Göring and that were still held by the Dutch 

government. Her claim did not include the Cranachs.

After receiving a non-binding recommendation from the 

Restitution Committee, the State Secretary ruled that von 

Saher’s claim for the artworks in the Göring transaction had 

already been “settled” in the 1950s and in the 1999 Dutch 

Court of Appeals decision. The State Secretary nonetheless 
VON SAHER V. NORTON SIMON MUSEUM OF ART 13

decided to return to von Saher all the paintings from the 

Göring transaction still in possession of the Dutch 

government. The State Secretary expressly stated that the 

decision to return the other paintings did not concern the 

Cranachs.

VON SAHER I

Out of options with the Dutch government, in 2007 von 

Saher filed a federal diversity action against the Museum in 

the Central District of California, seeking to recover the 

paintings. The suit alleged state-law claims for replevin, 

conversion, damages under California Penal Code § 496, 

quiet title, and declaratory relief. The action alleged 

timeliness under a California civil-procedure statute that 

allowed the rightful owners of confiscated Holocaust-era 

artwork to recover their items from museums or galleries and 

set a filing deadline of December 31, 2010. Cal. Civ. Proc. 

Code § 354.3(b), (c).

The district court dismissed the action, finding von 

Saher’s claims untimely and concluding that California’s 

special statute of limitations was unconstitutional. We 

affirmed, holding the California statute unconstitutional on 

field preemption grounds as the state was attempting to

engage in foreign affairs. See Von Saher v. Norton Simon 

Museum of Art at Pasadena, 592 F.3d 954, 965–68 (9th Cir. 

2010) (“Von Saher I”). But we provided von Saher leave to 

amend her complaint in case she could allege that she lacked 

notice such that her claims were timely under California’s 

generic statute of limitations for property actions. Id. at 968–

70; see Cal. Civ. Proc. Code § 338. Von Saher’s petition for 

certiorari to the U.S. Supreme Court was denied. 564 U.S. 

1037 (2011).
14 VON SAHER V. NORTON SIMON MUSEUM OF ART

VON SAHER II

Soon after our decision in Von Saher I, the California 

legislature amended its statute of limitations for actions “for 

the specific recovery of a work of fine art brought against a 

museum, . . . in the case of an unlawful taking or theft . . .

within six years of the actual discovery by the claimant or 

his or her agent.” Cal. Civ. Proc. Code § 338. The 

legislature made the amendment retroactive and von Saher 

amended her complaint accordingly.

The Museum again moved to dismiss, this time arguing 

that von Saher’s claims conflicted with federal foreign 

policy. The district court granted the motion. On appeal, we 

reversed and remanded, over a dissent from Judge Wardlaw. 

See Von Saher v. Norton Simon Museum of Art at Pasadena,

754 F.3d 712 (9th Cir. 2014) (“Von Saher II”).

The panel majority held that von Saher’s state-law 

claims did not conflict with federal policy concerning Nazistolen art “because the Cranachs were never subject to 

postwar internal restitution proceedings in the Netherlands.” 

Id. at 721. More specifically, von Saher’s complaint alleged 

that “(1) Desi chose not to participate in the initial postwar 

restitution process, (2) the Dutch government transferred the 

Cranachs to Stroganoff before Desi or her heirs could make 

another claim and (3) Stroganoff’s claim likely was not one 

of internal restitution.” Id. at 723.4

The panel majority refused to afford “serious weight” to 

an amicus brief filed in the Supreme Court by the U.S. 

 4 Importantly, the decision in Von Saher II was at the motion-todismiss stage, and so von Saher’s allegations were assumed to be true. 

754 F.3d at 714. As analyzed below, the record on remand does not bear 

out these allegations.
VON SAHER V. NORTON SIMON MUSEUM OF ART 15

Department of State and the Office of the Solicitor General 

in Von Saher I. Id. at 724. The panel noted that the brief 

went “beyond explaining federal foreign policy and 

appear[ed] to make factual determinations.” Id. Namely, 

the brief suggested that the Cranachs had “been subject (or 

potentially subject to) bona fide restitution proceedings in 

the Netherlands,” which contradicted the allegations in von 

Saher’s amended complaint. Id.

Although the panel posited that this was “a dispute 

between private parties,” it was “mindful that the litigation 

of this case may implicate the act of state doctrine.” Id. at 

725. The case was remanded for further factual development 

and to determine whether the doctrine applies to von Saher’s 

claims. Id. at 727.

Judge Wardlaw dissented. In her view, the United 

States, through the amicus brief submitted by the Solicitor 

General’s Office and the State Department, had articulated 

the foreign policy applicable to conflicts like this one. Id. at 

728 (Wardlaw, J., dissenting). The brief conveyed that 

“World War II property claims may not be litigated in U.S. 

courts if the property was ‘subject’ or ‘potentially subject’ to 

an adequate internal restitution process in its country of 

origin.” Id. The brief further explained that the paintings at 

issue in this appeal “have already been the subject of both 

external and internal restitution proceedings, including 

recent proceedings by the Netherlands.” Id. Those 

proceedings were “bona fide,” according to the brief, and so 

“their finality must be respected.” Id. Judge Wardlaw 

determined that “Von Saher’s attempt to recover the 

Cranachs in U.S. courts directly thwarts the central objective 

of U.S. foreign policy in this area: to avoid entanglement in 

ownership disputes over externally restituted property if the 

victim had an adequate opportunity to recover it in the 
16 VON SAHER V. NORTON SIMON MUSEUM OF ART

country of origin.” Id. at 729. Although Judge Wardlaw did 

not reach the issue because she concluded the case should be 

resolved on preemption grounds, she noted that the act of 

state doctrine may apply. Id. at 730 n.2.

The Supreme Court denied the Museum’s certiorari 

petition. 135 S. Ct. 1158 (2015).

SUMMARY JUDGMENT TO THE MUSEUM ON REMAND

On remand, after denying the Museum’s motion to 

dismiss on timeliness grounds, the district court conducted 

over a year of discovery and considered the parties’ crossmotions for summary judgment. Applying Dutch law, the 

district court granted summary judgment to the Museum, 

concluding that:

(1) because CORVO revoked the automatic 

invalidity of the Göring transaction in 1947, 

that transaction was “effective” and the 

Cranachs were considered to be the property 

of Göring; (2) because Göring was an 

“enemy” within the meaning of Royal Decree 

E133, his property located in the 

Netherlands, including the Cranachs, 

automatically passed in ownership to the 

Dutch State pursuant to Article 3 of Royal 

Decree E133; (3) unless and until the Council 

annulled the Göring transaction under Royal 

Decree E100, the Cranachs remained the 

property of the Dutch State; and (4) because 

the Göring transaction was never annulled 

under Royal Decree E100, the Dutch State 

owned the Cranachs when it transferred the 

paintings to Stroganoff in 1966.
VON SAHER V. NORTON SIMON MUSEUM OF ART 17

Hence, the Dutch government possessed good title to the 

paintings when it sold them to Stroganoff, who then 

conveyed good title to the Museum.

Analysis

We review de novo summary judgment rulings and 

questions of foreign law, including whether to apply the act 

of state doctrine. See Brunozzi v. Cable Commc’ns, Inc., 

851 F.3d 990, 995 (9th Cir. 2017); De Fontbrune v. Wofsy, 

838 F.3d 992, 1000 (9th Cir. 2016); Liu v. Republic of China, 

892 F.2d 1419, 1424 (9th Cir. 1989).

The act of state doctrine is a “rule of decision” requiring 

that “the acts of foreign sovereigns taken within their own 

jurisdictions shall be deemed valid.” W.S. Kirkpatrick Co. 

v. Environ. Tectonics Corp., Int’l, 493 U.S. 400, 405, 409 

(1990); see generally Born and Rutledge, International Civil 

Litigation in United States Courts 751–55 (2007). “The 

doctrine reflects the concern that the judiciary, by 

questioning the validity of sovereign acts taken by foreign 

states, may interfere with the executive branch’s conduct of 

foreign policy.” Provincial Gov’t of Marinduque v. Placer 

Dome, Inc., 582 F.3d 1083, 1089 (9th Cir. 2009). We apply 

the doctrine only when we are “require[d] . . . to declare 

invalid, and thus ineffective . . . , the official act of a foreign 

sovereign.” W.S. Kirkpatrick, 493 U.S. at 405. Hence, we 

apply the doctrine here, because “the relief sought” by von 

Saher would necessitate our “declar[ing] invalid” at least 

three “official act[s] of” the Dutch government “performed 

within its own territory.” Id.
18 VON SAHER V. NORTON SIMON MUSEUM OF ART

I. VON SAHER’S THEORY WOULD REQUIRE THE 

COURT TO INVALIDATE OFFICIAL ACTS OF THE 

DUTCH GOVERNMENT

Von Saher’s recovery hinges on whether she—not the 

Museum—holds good title to the paintings. The Museum’s 

defense, in turn, depends on its having received good title 

from Stroganoff, who forfeited his own restitution claim to 

the paintings when he bought them from the Netherlands in 

1966. It is therefore a necessary condition of von Saher’s 

success that the Dutch government’s conveyance of the 

paintings to Stroganoff be deemed legally inoperative. For 

von Saher to succeed, we would also need to disregard both 

the Dutch government’s 1999 decision not to restore von 

Saher’s rights in the Cranachs and its later statement that her 

claim to the Cranachs had been “settled.” Because it is 

“essential to” von Saher’s cause of action that these three 

official actions of the Dutch government be held invalid, the 

act of state doctrine applies. See Marinduque, 582 F.3d at 

1085.5 We examine these three acts in turn.

A. THE DUTCH GOVERNMENT’S CONVEYANCE TO 

STROGANOFF

As we acknowledged in Von Saher II, the act of state 

doctrine may apply to quiet title actions like von Saher’s that 

would require a court to nullify a foreign nation’s 

conveyances. 754 F.3d at 725–26 (citing Oetjen v. Central 

Leather Co., 246 U.S. 297, 303–04 (1918); Ricaud v. Am. 

Metal Co., 246 U.S. 304, 310 (1918)). What matters is 

“whether the conveyance . . . constituted an official act of 

 5 Because the act of state doctrine provides a rule of decision that 

deems valid the Stroganoff conveyance, we do not conduct a choice-oflaw analysis.
VON SAHER V. NORTON SIMON MUSEUM OF ART 19

[the] sovereign.” Von Saher II, 754 F.3d at 726. There is 

little doubt that the Dutch government’s conveyance to 

Stroganoff qualifies as an official act of the Netherlands.

We view the conveyance not as a one-off commercial 

sale, but as the product of the Dutch government’s sovereign 

internal restitution process.6 Under that process, the 

Netherlands passed Royal Decrees E133, to expropriate 

enemy property, and E100, to administer a system through 

which Dutch nationals filed claims to restore title to lost or 

looted artworks. Whatever the exact legal effect of those 

decrees—and irrespective of whether the district court 

correctly interpreted their meaning under Dutch law—we 

cannot avoid the conclusion that the post-war Dutch system 

adjudicated property rights by expropriating certain items 

from the Nazis and restoring rights to dispossessed Dutch 

citizens.7 No one disputes, for example, that the Firm 

successfully availed itself of the post-war system by 

petitioning for restoration of rights in the artworks it had sold 

to Miedl.

 6 The post-war governmental processes here contrast sharply with, 

for example, an employee of a city museum purchasing artworks on the 

open market like any art dealer could do. See Malewicz v. City of 

Amsterdam, 517 F. Supp. 2d 322, 339 (D.D.C. 2007) (finding that the 

act of state doctrine does not apply in such a case because “there was 

nothing sovereign about the City’s acquisition of the . . . paintings, other 

than that it was performed by a sovereign entity.”).

7 The Museum submitted a compendium of post-war cases in which 

the Council for Restoration of Rights held that, under E133, the Dutch 

government expropriated ships and artwork that Dutch nationals had sold 

to the Germans during the war but were later recuperated. Although we 

do not rely on these cases for their substantive holdings, they underscore 

that the post-war Dutch system fixed rights in Nazi-looted property 

pursuant to official governmental policy—not as purely commercial acts.
20 VON SAHER V. NORTON SIMON MUSEUM OF ART

Expropriation of private property is a uniquely sovereign 

act. See, e.g., Oetjen, 246 U.S. at 303 (applying the act of 

state doctrine to governmental seizures of property); U.S. 

Const. amend. V. Whether or not the Netherlands effected 

an expropriation of the Cranachs under Dutch law, the Dutch 

government acted with authority to convey the paintings 

after von Saher’s predecessors failed to file a claim under 

E100. Von Saher’s expert conceded that the “Netherlands 

considered itself the lawful owner of the works sold to 

Goering” and “acted as the[ir] true owner.” The Dutch 

government then unquestionably acted as the owner of the 

paintings by agreeing to convey them to Stroganoff in 

exchange for his dropping certain restitution claims. Under 

the act of state doctrine, “title to the property in this case 

must be determin[e]d by the result of the action taken by the 

[Netherlands].” Ricaud, 246 U.S. at 309.

In Von Saher II, we reasoned that if “the Museum can 

show that the Netherlands returned the [paintings] to 

Stroganoff to satisfy some sort of restitution claim, that act 

could ‘constitute a considered policy decision by a 

government to give effect to its political and public interests 

. . . and so [would be] . . . the type of sovereign activity that 

would be of substantial concern to the executive branch in 

its conduct of international affairs.’” 754 F.3d at 726 (citing 

Clayco Petroleum Corp. v. Occidental Petroleum Corp., 

712 F.2d 404, 406–07 (9th Cir. 1983)).

But we see no reason why the Museum cannot likewise 

show that the Netherlands transferred the paintings to 

Stroganoff as part of a decades-long “considered policy 

decision” that was inextricably linked to its rightsrestoration proceedings under the royal decrees. In order to 

sell to Stroganoff, the Dutch government must have 

concluded that its proceedings with respect to the Cranachs 
VON SAHER V. NORTON SIMON MUSEUM OF ART 21

and von Saher’s family were final. That interpretation is 

consistent with the position of von Saher’s predecessors, 

who wrote to the Dutch government that they “waive[d] the 

right to file for restoration of rights regarding [the 

Cranachs],” and made a strategic, counseled decision not to 

file a claim on the Göring transaction in order to keep the 

substantial sale price.8 The Dutch government clearly 

understood the Firm to mean what it said; the government 

began selling unclaimed artworks shortly after the E100 

filing deadline, including other works from the Göring 

transaction. The record on remand is clear.

The Museum also made the showing specifically 

requested in Von Saher II—that the conveyance to 

Stroganoff was a sovereign act made in consideration of a 

restitution claim. Stroganoff served a formal petition on the 

Dutch government, asserting rightful ownership of the 

Cranachs and a Rembrandt based on a claim that the Soviet 

government had stolen the artworks. Stroganoff’s writ of 

summons to the Dutch Ministers asserted that “he [wa]s the 

owner of these paintings,” requested that the Dutch 

government inform him whether it was “willing to return the 

paintings,” and if not, “to inform [him] of the reasons for 

[its] refusal.” At the time, the Dutch government “was not 

in the business of selling national artworks [such as the 

paintings] considered to be part of the Dutch cultural 

patrimony.”

 8 Despite that unequivocal waiver, von Saher argues that the Dutch 

government nonetheless should have kept the paintings on the off chance 

one of Goudstikker’s legal heirs had a change of heart seventy (or more) 

years later. That position is based on wishful thinking rather than law or 

fact and, of course, runs counter to the expectation that post-war 

restitution systems should “achieve expeditious, just and fair outcomes.” 

Von Saher II, 754 F.3d at 721 (emphasis added).
22 VON SAHER V. NORTON SIMON MUSEUM OF ART

After years of negotiations, the Netherlands and 

Stroganoff decided to “settle the case by means of an 

amicable arrangement”: Stroganoff offered to “buy back” 

the paintings in exchange for dropping his restitution claims 

for both the Cranachs and the Rembrandt. The Dutch 

government entered into the agreement only after carefully 

considering the public policy ramifications of doing so—the 

Dutch Minister of Culture initially opposed the proposal 

because “the two Cranachs are especially important for the 

Dutch cultural collection.” Ultimately, however, the Dutch 

Minister of Culture considered the settlement to be in “the 

interest[s] of the country.” The Dutch Minister of Finance 

likewise signed off on the settlement, reinforcing our 

understanding that the Netherlands entered into the 

agreement with the careful consideration of high-ranking 

officials.

Considered holistically, the administration of E100 and 

E133, the settlement with von Saher’s family, and the 

conveyance of the Cranachs to Stroganoff in consideration 

of his restitution claim constitute an official act of state that 

gives effect to the Dutch government’s “public interests.” 

Von Saher II, 754 F.3d at 726.

B. THE DUTCH COURT OF APPEALS DECISION 

NOT TO RESTORE VON SAHER’S RIGHTS TO 

THE PAINTINGS

Von Saher’s theory also would require us to disregard 

the 1999 Dutch Court of Appeals decision denying the 

restoration of von Saher’s rights in the paintings. This ruling 

is a second act of state authorizing the transfer of the 

Cranachs to Stroganoff.

In 1998, von Saher petitioned the Dutch government to 

surrender all property from the “Goudstikker collection” 
VON SAHER V. NORTON SIMON MUSEUM OF ART 23

over which the State had gained control. The Dutch State 

Secretary rejected the request, advising that “[i]n my 

opinion, directly after the war—even under present 

standards—the restoration of rights was conducted 

carefully.”

Von Saher then filed an E100 petition for restoration of 

rights in the Dutch Court of Appeals (the legal successor to 

the Council for Restoration of Rights). Von Saher’s petition 

sought relief for all artworks involved in the Göring 

transaction, including the Cranachs. The Court of Appeals 

denied the restoration of von Saher’s rights in the paintings, 

noting that “[f]rom the documents submitted it appears that 

[the Firm] at the time made a conscious and well considered 

decision to refrain from asking for restoration of rights with 

respect to the Goring transaction.” The Firm had access to 

legal advisors and was “free . . . to have submitted an 

application for [E100] restoration of rights with the 

Council,” but “neglected to do so for well-founded reasons.” 

The Court of Appeals also offered an opinion on the process, 

concluding that “[t]he Netherlands created an adequately 

guaranteed procedure for handling applications for the 

restoration of rights,” which was not “in conflict with 

international law.”9

Under E100, the Dutch Court of Appeals (succeeding the 

Council) was the only venue through which von Saher could 

have received restitution for, and restoration of rights in, the 

 9 During oral argument, von Saher argued for the first time that the 

1999 Dutch Court of Appeals decision is inapposite because it was a 

“procedural” rather than a “substantive” ruling. Whatever the import of 

that distinction, it is inaccurate. The record explicitly notes that the Court 

of Appeals weighed the “substantive” evidence and arguments—many 

of which were presented here—and found “no serious cause to grant ex 

oficio restoration of rights.”
24 VON SAHER V. NORTON SIMON MUSEUM OF ART

Cranachs. By administering the exclusive postwar remedial 

scheme for artwork taken by the Nazis, and refusing von 

Saher’s restoration of rights in the paintings, the Dutch Court 

of Appeals carried out an official action that is particular to 

sovereigns. See Clayco, 712 F.2d at 406. Even if we 

consider the Court of Appeals decision to be a “foreign court 

judgment” rather than an agency adjudication, such 

judgments are treated as acts of state when they “g[i]ve 

effect to the public interest” of the government. See In re 

Philippine Nat’l Bank, 397 F.3d 768, 773 (9th Cir. 2005); 

accord Restatement (Second) of Foreign Relations of the 

United States § 41 cmt. d (1965)) (“A judgment of a court 

may be an act of state.”). The Dutch ruling provides an 

additional act of state that deems valid the transfer to 

Stroganoff.

C. THE DUTCH GOVERNMENT’S DECISION THAT 

THE RIGHTS TO THE CRANACHS HAD BEEN 

“SETTLED”

Based on government activities after the 1999 Dutch 

Court of Appeals decision, von Saher contends that the act 

of state doctrine either does not apply or should operate on 

her behalf.10 But rather than aid von Saher, those later 

activities provide a third official act supporting the legality

of the Stroganoff transfer.

Inspired by the 1998 Washington Conference Principles 

on Nazi-Confiscated Art, the Netherlands departed in 2001 

from a “purely legal approach” to restitution in favor of “a 

 10 In her opening brief, von Saher appeared to argue that the act of 

state doctrine is applicable and should deem invalid the transfer to 

Stroganoff. In her reply, she shifted to arguing that the doctrine is 

“inapplicable.”
VON SAHER V. NORTON SIMON MUSEUM OF ART 25

more moral policy approach.” The Dutch government 

shifted its paradigm at the recommendation of the “Ekkart 

Committee,” which investigated “a great number of post-war 

claims” and found that one Dutch restitution agency had 

been “legalistic, bureaucratic, cold and often even callous” 

in conducting operations.

The new restitution policy was not an official 

pronouncement that the previous Dutch policy was invalid, 

however. 11 Nor was the new policy established to reexamine old cases. Far from it, the new policy categorically 

did not apply to “settled case[s],” defined as those in which 

“either the claim for restitution resulted in a conscious and 

deliberate settlement or the claimant expressly renounced his 

claim for restitution.”

To help administer the new policy, in 2001 the Dutch 

State Secretary of Education, Culture and Science 

established a “Restitution Committee” charged with 

considering new restitution applications. The “main task of 

the Committee” was to advise the State Secretary on 

“applications for the restitution of items of cultural value of 

which the original owners involuntarily lost possession due 

to circumstances directly related to the Nazi regime and 

which are currently in the possession of the State of the 

Netherlands.” (Emphasis added).

With a new system in place, in 2004 von Saher filed a 

claim for 267 artworks looted by the Nazis from the 

Goudstikker Gallery that were still in the possession of the 

Dutch government. Crucially, the claim did not include the 

Cranachs. Indeed, von Saher could not have filed a 

 11 Von Saher’s expert expressed “no doubt” that the prior restitution 

policy was administered “in good faith.”
26 VON SAHER V. NORTON SIMON MUSEUM OF ART

successful claim on the Cranachs without the consent of the 

Museum: the Restitution Committee only has authority to 

hear disputes involving property not currently possessed by 

the Netherlands when both the putative original owner and 

the current possessor request an opinion. The Dutch State 

Secretary referred the claim to the Restitution Committee, 

which issued a non-binding recommendation to the 

Secretary that the Dutch government return certain of the 

works to von Saher.

Von Saher asserts that the Restitution Committee’s nonbinding recommendation to the Secretary was itself an act of 

state—establishing that von Saher’s family “did not abandon 

its rights in the artworks taken by Goring” by failing to file 

a timely E100 claim. But that interpretation is incorrect. 

Advisory recommendations that cannot bind the sovereign 

are not acts of state. See In re Estate of Ferdinand Marcos, 

Human Rights Litig., 25 F.3d 1467, 1471 (9th Cir. 1994); see 

also Sharon v. Time, Inc., 599 F. Supp. 538, 545 (S.D.N.Y. 

1984) (concluding that an advisory commission’s findings 

are not acts of state). The Restitution Committee’s 

recommendation and findings were purely advisory. Within 

the recommendation, the Committee itself stated that its 

“job” was “to provide advice in such a way that, if the State 

Secretary accepts the advice, a situation is achieved that as 

closely as possible approximates the former situation” 

before the forced sales. (Emphasis added).12

The Dutch State Secretary then issued a binding decision 

on von Saher’s restitution claim that accepted in part and 

rejected in part the Committee’s advice. Importantly, the 

 12 Nonetheless, the nonbinding recommendations do not support von 

Saher because they concerned only the specific paintings in her claim, 

which did not include the Cranachs.
VON SAHER V. NORTON SIMON MUSEUM OF ART 27

Secretary disavowed the Committee’s findings that von 

Saher’s predecessors had not waived their rights to 

restoration under E100 in the 1950s: “Unlike the Restitution 

Committee I am of the opinion that in this case it is a matter 

of restoration of rights which has been settled.” The 

Secretary concluded that the von Saher claim was “settled” 

by the 1999 “final decision” of the Court of Appeals, in 

which the Court found that von Saher’s predecessors had 

consciously foregone their restoration rights. Because von 

Saher’s case was “settled,” her claim was “not included in 

the current restitution policy.”

Although von Saher’s was a settled claim that fell 

outside the new policy, the Secretary nonetheless decided, 

ex gratia, to return to von Saher the over 200 paintings from 

the Goudstikker Collection that were still in Dutch 

possession. The Secretary’s action “t[ook] into account the 

facts and circumstances surrounding the involuntary loss of 

property and the manner in which the matter was dealt with 

in the early Fifties.”

The Dutch government’s decision to return the paintings 

still in its possession did not disrupt the government’s prior, 

binding acts of state concerning the Cranachs. The State 

Secretary for Education, Culture and Science explicitly 

stated that the Cranachs were “not a part of the claim for 

which [she] decided on February 6[, 2006] to make the 

return.” Accordingly, she “refrain[ed] from an opinion 

regarding the two pieces of art under the restitution policy,” 

and refused to “reverse[]” the prior decisions of the State 

Secretary of Culture and the Dutch Court of Appeals. The 

Secretary’s final determination that rights to the Cranachs 

had been fully “settled” marks the third act of the Dutch state 

counseling our application of the doctrine.
28 VON SAHER V. NORTON SIMON MUSEUM OF ART

II. EXCEPTIONS TO THE ACT OF STATE DOCTRINE DO

NOT APPLY

Having concluded that the Dutch government’s transfer 

of the paintings and its later decisions about the conveyance 

were “sovereign acts,” we still “must determine whether any 

exception to the act of state doctrine applies.” Von Saher II, 

754 F.3d at 726. None does.13

A. “PURELY COMMERCIAL ACTS”

A plurality of the Supreme Court has recognized a 

potential exception to the act of state doctrine for “purely 

commercial acts”—i.e. where “foreign governments do not 

exercise powers peculiar to sovereigns,” but rather “exercise 

only those powers that can also be exercised by private 

citizens.” Alfred Dunhill of London, Inc. v. Republic of 

Cuba, 425 U.S. 682, 704–05 (1976). The Supreme Court 

and our court have never decided whether such an exception 

exists. See Von Saher II, 754 F.3d at 727; Clayco, 712 F.2d 

at 408.

Nor must we decide in this case whether such an 

exception exists. Expropriation, claims processing, and 

government restitution schemes are not the province of 

private citizens. Those are “sovereign policy decision[s]” 

 13 In addition to the two exceptions we analyze, “the State 

Department also has restricted the application of th[e] doctrine, freeing 

courts to ‘pass upon the validity of the acts of Nazi officials.’” Republic 

of Austria v. Altmann, 541 U.S. 677, 713–14 (2004) (Breyer, J., 

concurring) (quoting Bernstein v. N.V. Nederlandsche-Amerikaansche 

Stoomvaart-Maatschappij, 210 F.2d 375, 375–76 (2d Cir. 1954) (per 

curiam)). However, we do not “pass upon the validity of the acts of Nazi 

officials”; rather, we “pass upon the validity of the acts of” the Dutch 

government.
VON SAHER V. NORTON SIMON MUSEUM OF ART 29

befitting sovereign acts. See Clayco, 712 F.2d at 406. 

Because the Dutch government’s administration of E100 and 

E133 and its settlement of Stroganoff’s restitution claim are 

not “purely commercial acts,” we do not decide whether 

such an exception exists. See id. at 408.

B. THE “SECOND HICKENLOOPER AMENDMENT”

The eponymous “Second Hickenlooper Amendment” 

restricts application of the act of state doctrine, “but only in 

respect to ‘a confiscation or other taking after January 1, 

1959.’” Republic of Austria v. Altmann, 541 U.S. 677, 713 

(2004) (Scalia, J., concurring) (citing 22 U.S.C. 

§ 2370(e)(2)). In Von Saher II, we floated that although the 

Dutch government kept possession of the paintings after von 

Saher’s predecessors failed to file a claim by 1951, the Dutch 

government did not transfer the paintings to Stroganoff until 

1966, a conveyance that “may constitute a taking or 

confiscation.” 754 F.3d at 727. Yet as the record illustrates, 

the Dutch government did not take or confiscate anything 

from von Saher’s family in 1966; the family had long since 

“waive[d] the right to file for restoration of rights” in order 

to keep the substantial sale price. Any taking, therefore, 

occurred before the Second Hickenlooper Amendment 

became effective.

Further, the Amendment bars application of the act of 

state doctrine only when the governmental action violates 

“principles of international law.” 22 U.S.C. § 2370(e)(2). 

As von Saher’s expert recognized, “international law 

respects the law as it stood at the time when the decisions 

were taken.” See United Nations Int’l Law Comm’n, Draft 

Articles on Responsibility of States for Internationally 

Wrongful Acts, With Commentaries, art. 13, U.N. Doc. 

A/56/10 (2001) (“An act of a State does not constitute a 

breach of an international obligation unless the State is 
30 VON SAHER V. NORTON SIMON MUSEUM OF ART

bound by the obligation in question at the time the act 

occurs.”).

When the Dutch government administered E133 and 

E100, the United States and other Allies imposed claimsfiling deadlines for property taken by the Nazis in occupied 

German zones. Under these schemes, prospective owners 

who opted not to file a claim before the deadline were treated 

as having forfeited their rights to the property. For example, 

the Court of Restitution Appeals noted that a deadline set in 

Military Law 59 recognized that “it was imperative to fix a 

date with finality on which the legal rights of all parties, 

whether they be individual claimants or successor 

organizations could be ascertained.” Advisory Opinion No. 

1, 1 Court of Restitution Appeals Reports 489, 492 (Aug. 4, 

1950). The Court held that by not filing a timely claim, 

“[t]he claimant by reason of his default lost his right to 

restitution under the [provision] when the vesting of the 

claim in the successor organization took place. He is forever 

barred from making any claim for the restitution of such 

property.” Id.14 The Dutch system clearly aligned with 

contemporaneous restitution schemes. Further, the 

forfeiture by von Saher’s predecessors was neither 

accidental nor ill informed—on the advice of counsel, the 

family affirmatively chose not to pursue any restoration of 

rights.

Because the Dutch government did not “confiscate” the 

paintings from von Saher’s family after 1959, and because 

 14 Von Saher acknowledges that Military Law 59 transferred 

unclaimed property to the Jewish Restitution Successor Organization, a 

charitable group, and that the Organization sold that property in order to 

raise money for survivors, but “only after the deadline for claims had 

expired.”
VON SAHER V. NORTON SIMON MUSEUM OF ART 31

the conveyance to Stroganoff did not violate international 

law, the Second Hickenlooper Amendment poses no 

obstacle to the application of the act of state doctrine.

III. THE POLICIES UNDERLYING THE ACT OF STATE 

DOCTRINE SUPPORT ITS APPLICATION HERE

Even where “the validity of the act of a foreign sovereign 

within its own territory is called into question, the policies 

underlying the act of state doctrine may not justify its 

application.” W.S. Kirkpatrick, 493 U.S. at 409 (citing 

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 

(1964)). The Supreme Court laid out three such policies in 

Sabbatino:

[1][T]he greater the degree of codification or 

consensus concerning a particular area of 

international law, the more appropriate it is 

for the judiciary to render decisions regarding 

it . . . . [2][T]he less important the 

implications of an issue are for our foreign 

relations, the weaker the justification for 

exclusivity in the political branches. [3]The 

balance of relevant considerations may also 

be shifted if the government which 

perpetrated the challenged act of state is no 

longer in existence.

376 U.S. at 428; see also W.S. Kirkpatrick, 493 U.S. at 409.

All three of these policies support invocation of the 

doctrine here. Notably, no one has identified an 

international consensus regarding the invalidity of the Dutch 

post-war restitution procedures. If anything, the U.S. State 

Department and Office of the Solicitor General expressed in 

their amicus brief in Von Saher I that post-war restitution 
32 VON SAHER V. NORTON SIMON MUSEUM OF ART

proceedings in the Netherlands were “bona fide.” See Von 

Saher II, 754 F.3d at 729–30 (Wardlaw, J., dissenting). 

Second, the State Department and Solicitor General’s Office 

confirmed in their brief that upholding the Dutch 

government’s actions is important for U.S. foreign policy:

When a foreign nation, like the Netherlands 

here, has conducted bona fide post-war 

internal restitution proceedings following the 

return of Nazi-confiscated art to that nation 

under the external restitution policy, the 

United States has a substantial interest in 

respecting the outcome of the nation’s 

proceedings.

(Emphasis added).15 This position makes practical sense. 

Reaching into the Dutch government’s post-war restitution 

system would require making sensitive political judgments 

that would undermine international comity. See W.S. 

Kirkpatrick, 493 U.S. at 408 (underscoring that 

“international comity, respect for the sovereignty of foreign 

nations on their own territory, and the avoidance of 

 15 In Von Saher II, we concluded that von Saher’s claims against the 

Museum “do not conflict with foreign policy,” and that this case 

presents, “instead, a dispute between private parties.” 754 F.3d at 724. 

In doing so, we did not give the amicus brief “serious weight.” Id. 

Although Von Saher II is precedential authority, that decision left open 

whether the act of state doctrine applies. Id. at 725–27. We ought not 

exclude the State Department’s views when considering the doctrine’s 

application, especially when assessing the degree to which our decision 

will affect foreign policy. We acknowledge that we are not bound by 

those views. Cf. Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co.,

138 S. Ct. 1865, 1869 (2018) (holding that courts “should accord 

respectful consideration to” a foreign government’s amicus brief, but are 

“not bound to accord conclusive effect to the foreign government’s 

statements”).
VON SAHER V. NORTON SIMON MUSEUM OF ART 33

embarrassment to the Executive Branch in its conduct of 

foreign relations” are policies behind the doctrine). For 

example, von Saher asks us to conclude that filing an E100 

claim for the Cranachs in the 1950s would have been 

“futile.” So deciding would demand a judgment that the 

post-war Dutch system was incapable of functioning, a 

proposition that has not been proven here. Finally, we are 

dealing with a government that has been in continuous

existence since the relevant acts of state. As noted, the 

decisions of the Dutch Court of Appeals and the State 

Secretary that deemed the Cranachs a “settled” question are 

quite recent. Von Saher asks us to do what the Dutch 

government refused to do in the 1999 Court of Appeals 

decision—restore her rights to the Cranachs. Secondguessing the Dutch government would violate our 

“commitment to respect the finality of ‘appropriate actions’ 

taken by foreign nations to facilitate the internal restitution 

of plundered art.” Von Saher II, 754 F.3d at 721.

Our judiciary created the act of state doctrine for cases 

like this one. In applying it, we presume the validity of the 

Dutch government’s sensitive policy judgments and avoid 

embroiling our domestic courts in re-litigating long-resolved 

matters entangled with foreign affairs. Without question, the 

Nazi plunder of artwork was a moral atrocity that compels 

an appropriate governmental response. But the record on 

remand reveals an official conveyance from the Dutch 

government to Stroganoff thrice “settled” by Dutch 

authorities. For all the reasons the doctrine exists, we 
34 VON SAHER V. NORTON SIMON MUSEUM OF ART

decline the invitation to invalidate the official actions of the 

Netherlands.16

AFFIRMED.

WARDLAW, Circuit Judge, concurring:

This case should not have been litigated through the 

summary judgment stage. The district court correctly 

dismissed this case on preemption grounds in March 2012. 

Those grounds did not require any further factual 

development of the record, and were valid even taking all of 

the facts in the light most favorable to Von Saher. So here 

we are in 2018, over a decade from the date Von Saher filed 

her federal action, reaching an issue we need not have 

reached, to finally decide that the Cranachs, which have 

hung in the Norton Simon Museum nearly fifty years, may 

remain there.

In my 2014 dissenting opinion (attached), I noted that 

further adjudication of the Netherlands proceedings may 

implicate the act of state doctrine because “‘the outcome’ of 

this inquiry ‘turns upon[] the effect of official action by a 

foreign sovereign.’” Von Saher v. Norton Simon Museum of 

Art at Pasadena, 754 F.3d 712, 730 n.2 (9th Cir. 2014) 

(Wardlaw, J., dissenting) (citing W.S. Kirkpatrick & Co. v. 

Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990)). 

Though I did not reach the act of state doctrine, the prior 

panel could have because all of the historical official acts of 

 16 We thank the parties’ counsel and amici curiae for submitting 

extensive and informative briefs detailing the many factual and 

international law intricacies in this appeal.
VON SAHER V. NORTON SIMON MUSEUM OF ART 35

the Netherlands were in the record at the time of the motion 

to dismiss. And, because I agree that “there is little doubt 

that the Dutch government’s conveyance to Stroganoff 

qualifies as an official act of the Netherlands,” Majority Op. 

at 19, I concur.
36 VON SAHER V. NORTON SIMON MUSEUM OF ART

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Footnotes

1 The dissent concludes that “the Cranachs were in fact subject to bona fide internal restitution proceedings in the

Netherlands in 1998–99 and 2004–06.” Dissent at 731; see also Dissent at 732 (“Von Saher did seek ‘restitution’ of the

Cranachs, and her filing of the claims and the official disposition of those claims do constitute proceedings.”). We cannot

agree. In both 1998 and 2004, Von Saher sought the return of all the Goudstikker artworks the Dutch government had in

its possession. This necessarily excludes the Cranachs because the Netherlands had divested itself of the panels many

decades earlier. We therefore cannot conclude that Von Saher's 1998 and 2004 claims included the Cranachs.

1 The majority correctly explains the U.S. government's position that external restitution alone is not “sufficient of its own

force” to bar civil litigation in U.S. courts.

2 I would not reach the question of whether Von Saher's claims are barred by the act of state doctrine because I would

affirm the district court's dismissal of the complaint on the basis that her claims are preempted. I note, however, that

adjudicating whether the Netherlands' 1951 proceedings were bona fide may implicate the act of state doctrine because

“the outcome” of this inquiry “turns upon[ ] the effect of official action by a foreign sovereign.” W.S. Kirkpatrick & Co. v.

Envtl. Tectonics Corp., Int'l, 493 U.S. 400, 406, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990).

3 In 1961, George Stroganoff–Scherbatoff, heir to the Russian Stroganoff dynasty, filed a restitution claim for the Cranachs

in the Netherlands. He asserted that the Cranachs had been wrongfully seized from his family by Soviet authorities and

then unlawfully auctioned off to the Goudstikkers. The Dutch government transferred the Cranachs to Stroganoff in 1966.

Von Saher alleges that these were not restitution proceedings, but simply a sale, and that the Stroganoffs never owned

the Cranachs. In 1971, Stroganoff sold the Cranachs to the Norton Simon Art Foundation.

4 The majority attempts to draw an unworkable distinction between “explaining federal foreign policy” and “mak[ing] factual

determinations.” Our foreign policy often relies on factual assumptions inseparable from the policy itself. For instance,

the federal foreign policy that “Iran's pursuit of nuclear weapons is unacceptable” entails a factual assumption that Iran is

pursuing nuclear weapons. U.S. Strategic Objectives Towards Iran: Hearing Before the S. Comm. on Foreign Relations,

112th Cong. 7 (2011) (statement of Wendy R. Sherman, Under Secretary of State for Political Affairs). Here, the federal

foreign policy that the finality of the Netherlands' prior restitution proceedings in this case should be respected entails a

factual assumption that those proceedings occurred. Von Saher's attempt to plead to the contrary simply highlights why

entertaining her claims would conflict with federal policy.

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.