Cassirer v. Thyssen-Bornemisza Collection Foundation, 596 U.S. ___ (2022)
Cassirer inherited a Pissaro Impressionist painting. After the Nazis came to power in Germany, she surrendered the painting to obtain an exit visa. She and her grandson, Claude, eventually settled in the United States. The family’s post-war search for the painting was unsuccessful. In the 1990s, the painting was purchased by the Foundation, an entity created and controlled by the Kingdom of Spain.
Claude sued the Foundation, invoking the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602, to establish jurisdiction. FSIA provides foreign states and their instrumentalities with immunity from suit unless the claim falls within a specified exception. The court held that the Nazi confiscation of the painting brought Claude’s suit within the FSIA exception for expropriated property. To determine what property law governed the dispute, the court had to apply a choice-of-law rule. The plaintiffs urged the use of California’s choice-of-law rule; the Foundation advocated federal common law. The Ninth Circuit affirmed the choice of the federal option, which commanded the use of the law of Spain, under which the Foundation was the rightful owner.
The Supreme Court vacated. In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. When a foreign state is not immune from suit under FSIA, it is subject to the same rules of liability as a private party. Only the same choice-of-law rule can guarantee the use of the same substantive law and guarantee the same liability. Judicial creation of federal common law to displace state-created rules must be “necessary to protect uniquely federal interests.” Even the federal government disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims.
In a Foreign Sovereign Immunities Act suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party..
SUPREME COURT OF THE UNITED STATES
Syllabus
CASSIRER et al. v. THYSSEN-BORNEMISZA COLLECTION FOUNDATION
certiorari to the united states court of appeals for the ninth circuit
No. 20–1566. Argued January 18, 2022—Decided April 21, 2022
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq., governs whether a foreign state or instrumentality is amenable to suit in an American court. The question in this case is what choice-of-law rule a court should use to determine the applicable substantive law in an FSIA suit raising non-federal claims. That issue arises in a dispute concerning the ownership of an Impressionist painting: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain. Lilly Cassirer inherited the painting, which a family member had purchased from Pissarro’s agent in 1900. After the Nazis came to power in Germany, Lilly surrendered Rue Saint-Honoré to them to obtain an exit visa. Lilly and her grandson, Claude, eventually ended up in the United States. The family’s post-war search for Rue Saint-Honoré was unsuccessful. In the early 1990s, the painting was purchased by the Thyssen-Bornemisza Collection Foundation, an entity created and controlled by the Kingdom of Spain. Claude learned several years later that Rue Saint-Honoré was listed in a catalogue of the Foundation’s museum.
Claude sued the Foundation, asserting various property-law claims based on the allegation that he owned Rue Saint-Honoré and was entitled to its return. Because the Foundation is an “instrumentality” of the Kingdom of Spain, the complaint invoked the FSIA to establish the court’s jurisdiction. See §1603(b). The FSIA provides foreign states and their instrumentalities with immunity from suit unless the claim falls within a specified exception. See §§1605–1607. The courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the FSIA exception for expropriated property. See §1605(a)(3). That meant the Cassirer family’s suit could go forward. To determine what property law governed the dispute, the courts below had to apply a choice-of-law rule. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the Foundation advocated a rule based in federal common law. The courts below picked the federal option. That option, they then held, commanded use of the property law of Spain, not California. Applying Spanish law, the courts determined that the Foundation was the rightful owner. This Court granted certiorari to resolve a conflict among the Courts of Appeals as to what choice-of-law rule a court should apply in an FSIA case raising non-federal claims.
Held: In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law.
The FSIA provides a baseline principle of foreign sovereign immunity from civil actions unless a statutory exception applies (including the expropriation exception found to apply here). See §§1604–1607. Yet the FSIA was never “intended to affect the substantive law determining the liability of a foreign state or instrumentality” deemed amenable to suit. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 620. To the contrary, Section 1606 of the statute provides: “As to any claim for relief with respect to which a foreign state is not entitled to immunity under [the FSIA], the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” When a foreign state is not immune from suit, it is subject to the same rules of liability (the same substantive law) as a private party. See First Nat. City Bank, at 622, n. 11.
Section 1606 dictates the selection of a choice-of-law rule: It must mirror the rule that would apply in a similar suit between private parties. Only the same choice-of-law rule can guarantee use of the same substantive law—and thus guarantee the same liability. Consider two suits seeking recovery of a painting: one suit against a foreign-state-controlled museum (as here), the other against a private museum. If the choice-of-law rules in the two suits differed, so might the substantive law chosen. And if the substantive law differed, so might the suits’ outcomes. Contrary to Section 1606, the two museums would not be “liable to the same manner and to the same extent.”
In this case, Section 1606 requires the use of California’s choice-of-law rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum, brought as this case was in California and asserting non-federal claims. If the private suit were filed in state court, California’s choice-of-law rule would govern. And if the private suit were filed in federal court, the same would be true, because a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496. If California’s choice-of-law rule applies in the private-museum suit, it must also apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party.
Even absent the clarity of Section 1606, the Court would likely reach the same result. Scant justification exists for federal common lawmaking in this context. Judicial creation of federal common law to displace state-created rules must be “necessary to protect uniquely federal interests.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640. While foreign relations is an interest of that kind, here even the Federal Government disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims. Pp. 5–9.
824 Fed. Appx. 452, vacated and remanded.
Kagan, J., delivered the opinion for a unanimous Court.
Judgment Issued |
Judgment VACATED and case REMANDED. Kagan, J., delivered the opinion for a unanimous Court. |
Argued. For petitioners: David Boies, Armonk, N. Y.; and Masha G. Hansford, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Thaddeus J. Stauber, Los Angeles, Cal. |
Reply of David Cassirer, et al submitted. |
Reply of petitioners David Cassirer, et al. filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED. |
The record received from the United States District Court Central District of California - 1 Box. Exhibits received has been electronically filed. |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed. |
Brief of Thyssen-Bornemisza Collection Foundation submitted. |
Brief of respondent Thyssen-Bornemisza Collection Foundation filed. (Distributed) |
CIRCULATED |
Amicus brief of Mark B. Feldman submitted. |
Brief amicus curiae of United States filed. |
Amicus brief of 14 Professors of Law submitted. |
Amicus brief of United States submitted. |
Brief amici curiae of Professors of Law filed. |
Amicus brief of Comunidad Judía de Madrid and Federación de Comunidades Judías de España submitted. |
Brief amicus curiae of Mark B. Feldman filed. |
Brief amici curiae of Comunidad Judía de Madrid and Federación de Comunidades Judías de España filed. |
Amicus brief of B'nai B'rith International, Center for Art Law, Holocaust Survivors Foundation USA, Raoul Wallenberg Center for Human Rights, Omer Bartov, Michael Berenbaum, Donald S. Burris, Eugene J. Fisher, Rabbi Irving "Yitz' Greenberg, Peter Hayes, Michael J. Kelly, Marcia Sachs Littell, Wendy Lower, Carrie Menkel-Meadow, Miriam Friedman Morris, John Pawlikowski OSM, Carol Rittner RSM, John K. Roth, Jonathan Zatlin submitted. |
Amicus brief of B'nai B'rith International, Center for Art Law, Holocaust Survivors Foundation USA, Raoul Wallenberg Center for Human Rights, Omer Bartov, Michael Berenbaum, Donald S. Burris, Eugene J. Fisher, Rabbi Irving "Yitz' Greenberg, Peter Hayes, Michael J. Kelly, Marcia Sachs Littell, Wendy Lower, Carrie Menkel-Meadow, Miriam Friedman Morris, John Pawlikowski OSM, Carol Rittner RSM, John K. Roth, Jonathan Zatlin submitted. |
Brief amici curiae of B'nai B'rith International, et al. filed. |
Brief amici curiae of The 1939 Society, et al. filed. |
Amicus brief of The 1939 Society, American Jewish Committee, Bet Tzedek, Center for the Study of Law & Genocide, and The Holocaust Education Center in the Desert, Inc. submitted. |
Record requested from the U.S.C.A. 9th Circuit. |
ARGUMENT SET FOR Tuesday, January 18, 2022. |
The record from the 9th Circuit is electronic and located on Pacer. |
Brief of David Cassirer, et al submitted. |
Joint Appendix submitted. |
Brief of petitioners David Cassirer, et al filed. |
Joint appendix filed (statement of cost received). |
Joint appendix filed. |
Blanket Consent filed by Petitioner, David Cassirer, et al. |
Blanket Consent filed by Respondent, Thyssen-Bornemisza Collection Foundation |
Joint motion to extend the time to file the briefs on the merits denied. |
Joint motion for an extension of time to file the briefs on the merits filed. |
Motion of David Cassirer, et al for an extension of time submitted. |
Petition GRANTED. |
DISTRIBUTED for Conference of 9/27/2021. |
Reply of petitioners David Cassirer, et al. filed. (Distributed) |
Brief of respondent Thyssen-Bornemisza Collection Foundation in opposition filed. |
Motion to extend the time to file a response is granted and the time is extended to and including July 30, 2021. |
Motion to extend the time to file a response from June 23, 2021 to July 30, 2021, submitted to The Clerk. |
Brief amici curiae of 14 Professors of Law filed. |
Response Requested. (Due June 23, 2021) |
DISTRIBUTED for Conference of 6/3/2021. |
Waiver of right of respondent Thyssen-Bornemisza Collection Foundation to respond filed. |
Petition for a writ of certiorari filed. (Response due June 10, 2021) |