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Petitioner, V No. 18-____ IN THE Supreme Court of the United States ———— MAREI VON SAHER, Petitioner, v. NORTON SIMON MUSEUM OF ART AT PASADENA AND NORTON SIMON ART FOUNDATION, Respondents. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— LAWRENCE M. KAYE SAMUEL ISSACHAROFF HOWARD N. SPIEGLER Counsel of Record DARLENE FAIRMAN 40 Washington Square FRANK K. LORD IV South, 411J HERRICK, FEINSTEIN LLP New York, NY 10012 Two Park Avenue (212) 998-6580 New York, NY 10016 [email protected] ALAN DERSHOWITZ 1525 Massachusetts Avenue Cambridge, MA 02138 Counsel for Petitioner February 8, 2019 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTIONS PRESENTED Where artworks were forcibly confiscated from their Jewish owner by Nazi Reichsmarschall Hermann Göring, then recovered by the Dutch government after WWII, and are now in private hands in the U.S., and their ownership is now disputed between U.S. citizens, 1. May a court invoke the act of state doctrine to refuse to adjudicate true title based on Dutch proceedings when the Netherlands eschews any sovereign interest in the resolution of the dispute? And, 2. May a court invoke the act of state doctrine to refuse to adjudicate true title when such refusal is contrary to the express foreign policy of the United States concerning the recovery of looted Holocaust assets? (i) ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioner, who was Plaintiff-Appellant in the court below, is Marei von Saher. Petitioner is an individual. Respondents, who were Defendants-Appellees in the court below, are Norton Simon Museum of Art at Pasadena and Norton Simon Art Foundation. Respond- ents are both California nonprofit public benefit corporations. TABLE OF CONTENTS Page QUESTIONS PRESENTED ............................... i PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT ............................... ii TABLE OF AUTHORITIES ................................ vii PETITION FOR A WRIT OF CERTIORARI ...... 1 OPINIONS BELOW ............................................ 1 JURISDICTION .................................................. 1 RELEVANT STATUTORY PROVISIONS ......... 1 INTRODUCTION ................................................ 1 STATEMENT OF THE CASE ............................ 5 A. Background of the Dispute ....................... 5 B. The Proceedings Below ............................. 10 C. The Position of the Solicitor General ....... 12 REASONS TO GRANT THE WRIT .................... 14 I. The Circuits are Divided on Both the Purpose and the Application of the Act of State Doctrine ........................................... 14 A. The Act of State Doctrine Should Require Proof of a Sovereign Foreign Interest Substantially at Risk ............ 15 (iii) iv TABLE OF CONTENTS—Continued Page B. The Act of State Doctrine Should Require Proof that the Foreign Policy of the United States Might Be Abrogated ............................................. 18 1. The Circuits Are Divided on the Deference Owed the Executive ...... 18 2. The Ninth Circuit Misconstrued American Foreign Policy Interests 21 C. Procedural Confusion Abounds ........... 26 II. Important Public Policy Favors Certio- rari Review ................................................ 29 CONCLUSION .................................................... 31 APPENDIX APPENDIX A: OPINION, U.S. Court of Appeals for the Ninth Circuit (July 30, 2018) 1a APPENDIX B: OPINION, U.S. Court of Appeals for the Ninth Circuit (June 6, 2014) . 35a APPENDIX C: ORDER, U.S. Court of Appeals for the Ninth Circuit (September 11, 2018) ................................................................. 75a APPENDIX D: MINUTE ORDER, U.S. District Court for the Central District of California (August 9, 2016) ............................. 76a APPENDIX E: Holocaust Expropriated Art Recovery Act of 2016, Public Law 114-308, 114th Congress ................................................. 110a v TABLE OF CONTENTS—Continued Page APPENDIX F: Recommendation Regarding the Application by Amsterdamse Negotiatie Compagnie N.V. in Liquidation for the Restitution of 267 Works of Art from the Dutch National Art Collection (R.C. 1.15) ...... 118a APPENDIX G: Letter from State Secretary of Education, Culture and Science to Plaintiff’s counsel (February 6, 2006) (certi- fied translation included) ................................ 147a APPENDIX H: Letter from Spencer A. Samuels to Norton Simon Foundation with provenance attached (March 9, 1970) ............. 165a APPENDIX I: Letter from Director of Cultural Heritage to Defendants’ counsel (March 31, 2006) (certified translation included) ........................................................... 169a APPENDIX J: Letter from Director of Cultural Heritage to Plaintiff’s counsel (December 20, 2006) (certified translation included) ........................................................... 177a APPENDIX K: Excerpt: Restitutions Committee Recommendation regarding Goudstikker-Kummerlé (R.C. 1.134) .............. 183a APPENDIX L: Agreement between A.A. ten Broek and Walter Andreas Hofer as agent for Hermann Goering (July 13, 1940) (certified translation included) ........................................ 191a vi TABLE OF CONTENTS—Continued Page APPENDIX M: MEMORANDUM, Memo- randum from Department of Legislative and Legal Affairs, to State Secretary of Education, Culture and Science (November 2, 1964) (certified translation included) ........................ 197a APPENDIX N: REPORT: “Origins Unknown— Recommendations Ekkart Committee” (April 2001) ................................................................. 212a vii TABLE OF AUTHORITIES FEDERAL CASES Page(s) Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934 (D.C. Cir. 2008) ................... 28 Alfred Dunhill of London, Inc. v. Rep. of Cuba, 425 U.S. 682 (1976) ................................... 21 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) ................................... 22, 30 Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir. 1981) ...................... 25 Banco Nacional de Cuba v. Chemical Bank N.Y. Trust Co., 594 F. Supp. 1553 (S.D.N.Y. 1984) ........... 25 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ..................................passim Bernstein v. N.V. Nederlandsche- Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949) ........................ 25 Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000) ...................... 17, 18 Bolivarian Rep. of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312 (2017) ............................... 16 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ................................... 26 viii TABLE OF AUTHORITIES—Continued Page(s) Dominicus Americana Bohio v. Gulf & W. Indus., 473 F. Supp. 680 (S.D.N.Y. 1979) ............. 17 Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. 2010), cert. denied, 562 U.S. 1221 (2011) ............ 14 Environmental Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052 (3d Cir. 1988) .................... 19 First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) ................................... 18, 25 Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785 (5th Cir. 2017) ..................... 19, 28 Gonzalez v. Thaler, 565 U.S. 134 (2012) ................................... 28 Grupo Protexa, S.A. v. All Am. Marine Slip, 20 F.3d 1224 (3d Cir. 1994) ...................... 21, 28 Honduras Aircraft Registry, Ltd. v. Gov’t of Honduras, 129 F.3d 543 (11th Cir. 1997) ................... 28 Industrial Inv. Dev. Corp. v. Mitsui & Co., 594 F.2d 48 (5th Cir. 1979), cert. denied, 445 U.S. 903 (1980) .............. 20 INS v. Chadha, 462 U.S. 919 (1983) ................................... 3 ix TABLE OF AUTHORITIES—Continued Page(s) Kalamazoo Spice Extraction Co. v. Provisional Military Government of Socialist Ethiopia, 729 F.2d 422 (6th Cir. 1984) ..................... 25 Kiobel v. Royal Dutch Petroleum, Co., 569 U.S. 108 (2013) ................................... 26 Mata v. Lynch, 135 S. Ct. 2150 (2015) ............................... 26 Mezerhane v. Republica Bolivariana de Venezuela, 785 F.3d 545 (11th Cir. 2015) ................... 20 Morrison v. Nat’l Australian Bank, Ltd., 561 U.S. 247 (2010) ................................... 26 Museum of Fine Arts v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010), cert. denied, 562 U.S. 1271 (2011) ............ 14 Nocula v. UGS Corp., 520 F.3d 719 (7th Cir. 2008) ..................... 20, 28 Phillip v. Fed. Rep. of Ger., 248 F. Supp. 3d 59 (D.C. Cir. 2017), aff’d & remanded, 894 F.3d 406 (D.C. Cir. 2018) ......................................... 23 Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) ................................... 3, 27 Republic of Austria v. Altmann, 541 U.S. 677 (2004) ......................... 3, 15, 26, 29 Riggs Nat’l Corp. & Subsidiaries v. Comm’r, 163 F.3d 1363 (D.C. Cir. 1999) ................. 20 x TABLE OF AUTHORITIES—Continued Page(s) Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064 (9th Cir. 2018) ................... 28 United Bank Ltd. v. Cosmic Int’l, Inc., 542 F.2d 868 (2d Cir. 1976) ...................... 19 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983) ................................... 26 Von Saher v. Norton Simon Museum of Art at Pasadena, No. CV 07-2866-JFW (JTLx), 2007 WL 4302726 (C.D. Cal. 2007) .......... 1, 10 Von Saher v. Norton Simon Museum of Art at Pasadena,
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