## Facts

- Lilly Cassirer, a German Jew, surrendered a Camille Pissarro painting in 1939 to a Nazi agent as a condition of obtaining an exit visa from Germany.
- The painting later moved through private hands and entered the Thyssen collection; Spain acquired the collection and placed the painting with the Thyssen-Bornemisza Collection Foundation (TBC).
- TBC held and publicly displayed the painting in Madrid.
- Claude Cassirer, Lilly Cassirer’s heir and a U.S. citizen, learned the painting’s location around 2000 and sought restitution without success.
- In 2005, Cassirer sued the Kingdom of Spain and TBC in federal court to recover the painting or damages, invoking the Foreign Sovereign Immunities Act (FSIA) expropriation exception, 28 U.S.C. § 1605(a)(3).
- The district court denied motions to dismiss, finding the FSIA expropriation exception applied; Spain and TBC took an interlocutory appeal focused on sovereign immunity.

## Issues

1. Whether FSIA § 1605(a)(3) requires the defendant foreign state to have committed the initial taking “in violation of international law,” or whether it suffices that the property was taken by another sovereign in violation of international law and is now held by the defendant state or its instrumentality.
2. Whether TBC was “engaged in a commercial activity in the United States” sufficient to satisfy the nexus element of FSIA § 1605(a)(3).
3. Whether exhaustion of remedies in Germany or Spain is a prerequisite to invoking FSIA § 1605(a)(3).
4. Whether the court of appeals, on interlocutory review of a denial of sovereign immunity, may also review personal jurisdiction and Article III case-or-controversy rulings.

## Decision

- The en banc Ninth Circuit affirmed the denial of sovereign immunity under FSIA § 1605(a)(3).
- The court held § 1605(a)(3) does not require that the defendant foreign state itself committed the original unlawful taking; it is enough that rights in property taken in violation of international law are at issue and the property is now owned or operated by a foreign state or its instrumentality meeting the statute’s nexus requirements.
- The court held TBC was engaged in commercial activity in the United States based on U.S.-directed museum-related activities, including advertising, promotion, and sales of merchandise and catalogues.
- The court rejected an exhaustion requirement, holding Congress did not condition § 1605(a)(3) jurisdiction on prior pursuit of foreign remedies.
- The court dismissed the appeal to the extent it sought review of personal jurisdiction and case-or-controversy determinations, concluding those issues were outside the collateral order doctrine in this interlocutory posture.

## Legal Principles

- FSIA § 1605(a)(3) applies when rights in property taken in violation of international law are at issue, even if the defendant foreign state did not perform the original taking, so long as the property is currently owned or operated by the foreign state or its agency or instrumentality and the statutory nexus is met.
- For FSIA “commercial activity,” the relevant inquiry is the nature of the conduct—whether the entity acts like a private participant—rather than whether it is motivated by profit.
- Courts may not impose an exhaustion-of-foreign-remedies condition on FSIA § 1605(a)(3) absent statutory text requiring it.
- Interlocutory appellate review under the collateral order doctrine extends to denials of foreign sovereign immunity but generally does not extend to unrelated threshold rulings such as personal jurisdiction or Article III justiciability.

## Conclusion

The Ninth Circuit held that U.S. courts had subject-matter jurisdiction under FSIA’s expropriation exception over claims to Nazi-taken property held by Spain’s instrumentality that engaged in U.S. commercial activity, without requiring exhaustion of foreign remedies, and limited interlocutory review to the sovereign-immunity ruling.


Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en banc)