^* This text was reproduced and reformatted from the text available at the Ninth Circuit Court of Appeals website (visited Nov. 28, 2010) http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/06-56325.pdf.

¹ Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010).

² 28 U.S.C. § 1605(a)(3) (2010). The statute presents an alternative application to the requirement of property being “owned or operated” by the foreign state or instrumentality in situations where “that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state.” Id.

³ Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157 (C.D. Cal. 2006).

⁴ Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

⁵ Sarei v. Rio Tinto, 550 F.3d 822, 832 (9th Cir. 2008).

⁶ Cassirer, 580 F.3d at 1063.

⁷ Id. at 1071 (Ikuta, J, dissenting) (“There is no need to make judge-made law in this context.”).

⁸ See, e.g., Recent Case, Foreign Sovereign Immunities Act— Exhaustion of Local Remedies—Ninth Circuit Requires Caseby-Case Prudential Analysis of Exhaustion of Local Remedies in Foreign Sovereign Immunities Act Suits—Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009), 123 Harv. L. Rev. 1369, 1373 (2010) (“As a result of the significant discretion given to trial courts and the inclusion of potentially inapposite factors, the Cassirer test threatens to undermine the predictable, legal basis for assessing subject matter jurisdiction in claims against foreign sovereigns.”); Noe Hamra Carbajales, Cassirer v. Kingdom of Spain: Did the Exhaustion of Remedies Doctrine Find its Way into Claims Under The Foreign Sovereign Immunities Act?, 18 Tul. J. Int’l & Comp. L. 539, 555 (2010) (“the exhaustion of remedies doctrine is an unnecessary defense that overlaps with other principles, such as the state of the act doctrine, the political question doctrine, or the forum non conveniens doctrine.”). The author was unable to identify any scholarly commentary supportive of the adoption of the requirement in the FSIA context, although there has been some criticism of the trend of broadening jurisdictional immunity exceptions for restitution claims under the FSIA. See, e.g., Lauren Fielder Redman, The Foreign Sovereign Immunities Act: Using a “Shield” Statute as a “Sword” for Obtaining Jurisdiction in Art & Antiquities Cases, 31 Fordham Int’l L.J. 781 (2008).

⁹ Cassirer v. Kingdom of Spain, 590 F.3d 981 (9th Cir. 2009).

¹⁰ Judge Gould, joined by Judge Kozinski, dissented from the en banc decision, arguing that the FSIA exception should not apply to a state that was not a participant in the unlawful act. Cassirer, 616 F.3d at 1038.

¹¹ Altmann v. Republic of Austria, 317 F.3d 954, 959 (9th Cir. 2002), amended by 327 F.3d 1246 (9th Cir. 2003), aff’d by 541 U.S. 677 (2004) (“Because Appellants profit from the Klimt paintings in the United States, by authoring, promoting, and distributing books and other publications exploiting these very paintings, these actions are sufficient to constitute ‘commercial activity’ for the purpose of satisfying the FSIA.”).

¹² See Cassirer, 616 F.3d at 1032-34.

¹³ Id. at 1037.

¹⁴ Id.

¹⁵ See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711-12 (9th Cir. 1992); West v. Multibanco Comermex, S.A., 807 F.2d 820, 831-33 (9th Cir. 1987); Restatement (Third) of Foreign Relations Law of the United States § 712 (1987).

¹⁶ Hazel Fox, The Law of State Immunity 350 (2d ed. 2008) (“There is no parallel to this exception in the practice of other States, perhaps not surprisingly in view of the controversial nature of what constitutes a ‘taking.”’).

¹⁷ See, e.g., Ferrini v. Repubblica Federale di Germania, Cass., sez. un., 11 mar. 2004, n. 5044, 87 Rivista Di Diritto Internazionale 539 (2004) (It.) (English translation available at 128 I.L.R. 658 (2004)) (Supreme court of Italy holding that Germany was not entitled to immunity for war crimes and crimes against humanity); Jurisdictional Immunities of the State (F.R.G. v. Italy), Application of the Federal Republic of Germany (Dec. 2008), available at http://www.icj-cij.org/docket/files/143/14923.pdf (alleging that Italy’s decision on immunity violated its rights under international law); Maria Gavouneli & Elias Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 95Am. J. Int’l L. 198 (2001) (discussing decision of Supreme Court of Greece holding that Germany was not entitled to immunity for war crimes committed in Greece during World War II).

¹⁸ Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 66 (2001) (holding that a denial of immunity for state acts of torture was “not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity”).

¹⁹ Fox, supra note 16, at 350.

²⁰ See Cassirer, 616 F.3d at 1024. On remand, the court will eventually have to face the question of choice of law rules for various questions at issue in this dispute.

²¹ See State Department Press Release No. 296, Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers, 20 U.S. Dep’t State Bull. 592 (Apr. 27, 1949) (quoted in Bernstein v. N.V. Nederlandsche- Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954) (per curiam), modifying 173 F.2d 71 (2d Cir. 1949)) (“The letter repeats this Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls; states that it is this Government’s policy to undo the forced transfers and restitute identifiable property to the victims of Nazi persecution wrongfully deprived of such property; and sets forth that the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.”); Declaration Regarding Forced Transfers of Property in Enemy- Controlled Territory, 8 U.S. Dep’t St. Bull. 21, 21-22 (Jan. 9, 1943) (quoted in Altmann v. Republic of Austria, 327 F.3d 1246, 1246-47 (9th Cir. 2003)) (“Accordingly the governments making this declaration and the French National Committee reserve all their rights to declare invalid any transfers of, or dealings with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect, of the governments with which they are at war or which belong or have belonged, to persons . . . resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.”).

²² See generally 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 (2009).

²³ Prague Holocaust Era Assets Conference: Terezin Declaration, U.S. Dep’t of State (June 30, 2009), http://www.state.gov/p/eur/rls/or/126162.htm. See generally Holocaust Era Asseta Conference, http://www.holocausteraassets.eu/ (last visited Nov. 23, 2010).

²⁴ Cassirer, 616 F.3d at 1029, n.14 (citing Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 Seattle U.L. Rev. 631, 633-34 (2000)).

²⁵ See, e.g., Von Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir. 2010) (invalidating state law waiving statute of limitations for Holocaust looted art); Von Saher v. Norton Simon Museum of Art, No. 09-1254, 2010 WL 3834227 (U.S. Oct. 4, 2010) (requesting views of United States’ Solicitor-General for consideration of certiorari to Supreme Court); Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010) (declaratory action to quiet title against alleged titleholder of Nazi expropriated drawing in which it was held that New York law applies to the question of good faith purchase); Schoeps v. Museum of Modern Art, 603 F. Supp. 2d 673 (S.D.N.Y. 2009) (discussing confidentiality of settlement relating to Picasso paintings allegedly expropriated by Nazis in World War II); Cal. Assemb. B. 2765 (Cal. 2010), available at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-800/ab_2765_bill_20100930_chaptered.html (amending the California Code of Civil Procedure to lengthen the statute of limitations to six years for the recovery of works of fine art taken by fraud or duress).

²⁶ Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

²⁷ Id. at 733, n.21. The Court in Sosa discussed principles of abstention in the context of entertaining common law causes of action on international questions when it made this comment (as distinct from questions of immunity): “And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732-33 (internal footnotes omitted).

²⁸ Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008). The Sarei decision replaced an earlier panel decision that rejected the prudential exhaustion requirement, and in which Judge Bybee filed a lengthy dissent cataloguing the history of the exhaustion of local remedies requirement from the Jay Treaty of 1794. Bybee’s dissent was likely influenced by the amicus curiae brief filed by Judge Stephen Schwebel and Sir Ninian Stephen in that case. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007). The Sarei case was referred for mediation on October 26, 2010. Sarei v. Rio Tinto, PLC, No. 09-56381, 2010 WL 4190718 (9th Cir. Oct. 26, 2010).

²⁹ Altmann, 541 U.S. at 714.

³⁰ Cassirer, 616 F.3d at 1037.

³¹ Id.

³² See Richard Bernstein, Austrian Panel Backs Return of Klimt Works, N.Y. Times, Jan. 17, 2006, at E3.

¹ Except as noted, we take the facts as alleged in the complaint as true because we are reviewing a denial of a motion to dismiss. Altmann v. Republic of Austria, 317 F.3d 954, 961-62 (9th Cir. 2002), amended by 327 F.3d 1246 (9th Cir. 2003), aff’d by 541 U.S. 677 (2004)

² Citizenship matters because we have held that the takings exception, at issue here, does not apply where the plaintiff is a citizen of the country that expropriates his property. Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1105 (9th Cir.1990). The district court’s determination that Lilly was no longer regarded by Germany as a German citizen is not challenged on appeal.

³ Cassirer also moved to expedite the Foundation’s appeal. We granted this motion and sua sponte ordered the appeals to be consolidated.

⁴ As part of our en banc process we asked the parties to file simultaneous briefs as to whether this matter should be reheard en banc. Spain and the Foundation took the position that rehearing en banc is unnecessary because they intend to file a motion to dismiss the complaint on the ground that the claims are time-barred under Von Saher v. Norton Simon Museum of Art, 578 F.3d 1016 (9th Cir. 2009). We express no opinion on the merits of this proposition.

⁵ The House bill was passed in lieu of the Senate bill, so the House Report is the operative legislative history.

⁶ Section 1330(a) provides:

⁷ Section 1604 provides:

⁸ There are exceptions for waiver, id. § 1605(a)(1); commercial activity, id. § 1605(a)(2); expropriation, id. § 1605(a)(3); succession, id. § 1605(a) (4); personal injury in the United States, id. § 1605(a)(5); arbitration, id. § 1605(a)(6); maritime liens, id. § 1605(b); terrorism, id. § 1605A; and counterclaims, id. § 1607.

⁹ The House Report describes the phrase “taken in violation of international law” as including expropriations that are “arbitrary or discriminatory in nature,” or done “without payment of the prompt adequate and effective compensation required by international law.” 965 F.2d at 712 (quoting H.R. Rep. No. 94-1487, at 19-20). The Restatement provides that a foreign state is responsible for injury from a taking that “(a) is not for a public purpose, or (b) is discriminatory, or (c) is not accompanied by provision for just compensation. . . .” Restatement (Third) of Foreign Relations Law of the United States § 712 (1987).

¹⁰ The dissent invokes “another principle of statutory construction,” dis. op. at 11500, which we disagree is applicable. It is that statutes in derogation of the common law are to be strictly construed. In the dissent’s view, the common law gives sovereign nations like Spain a sovereign immunity. For this it relies on the Supreme Court’s statement in Samantar v. Youseuf, 130 S. Ct. 2278 (2010), that “[t]he doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976.” Id. at 2284. But the Court also made clear that “[a]fter the enactment of the FSIA, the Act — and not the pre-existing common law — indisputably governs the determination of whether a foreign state is entitled to sovereign immunity.” Id. at 2285.

¹¹ The cited portion of the House Report explains the expropriation exception and states:

H.R. Rep. No. 94-1487, at 19-20.

¹² It does so in explicating the so-called “Hickenlooper Exception” to the act of state doctrine. The “Hickenlooper Exception” is a shorthand reference to 22 U.S.C. § 2370(e)(2), which prohibited courts from declining on the ground of the act of state doctrine to determine the merits in cases where a claim to property is asserted based on a taking “by an act of that state in violation of the principles of international law.” Whether or not § 1605(a)(3) was intended to parallel or incorporate the concepts of the Hickenlooper Exception, as the dissent suggests, the observation is inapposite because the act of state doctrine is a substantive defense on the merits that is distinct from immunity. See Samantar, 130 S. Ct. at 2290-91. Besides this, the Hickenlooper Exception shows that Congress knows how to write “that state” when it wants to.

¹³ Section 455 provides:

Restatement (Third) § 455. The comment, upon which the Foundation also relies, states that

¹⁴ Nor does the literal language strike us as so absurd that Congress couldn’t possibly have meant to provide a forum for adjudicating claims to property previously taken in violation of international law that is currently held by a different foreign state or its instrumentality, when the requisite nexus of commercial activity exists in the United States. Doing so is consistent with the familiar notion that a purchaser cannot get good title if property has been stolen at any place along the line, which is the general rule at common law. See, e.g., Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 Seattle U. L. Rev. 631, 633-34 (2000) (“[O]ne who purchases, no matter how innocently, from a thief, or all subsequent purchasers from the thief, acquires no title in the property. Title always remains with the true owner.”); see also U.C.C. § 2-403 (seller can only transfer the title that it possesses).

¹⁵ Whether Spain was a good faith purchaser is not, of course, before us. The bona fides of its acquisition will no doubt be raised in defense on the merits, but is not a factor in the jurisdictional calculus. Likewise, the dissent’s concern that a taking by one country can waive the sovereign immunity of “some innocent nation that comes upon the property later through legitimate means,” dis. op. at 11499, is premature. The Restatement sections upon which it relies speak to potential liability, not to immunity from suit. See Restatement (Second) of Foreign Relations Law of the United States §§ 164, 183 (1965); Restatement (Third) §§ 207, 712. They simply indicate that a state is responsible under international law for injury that is attributable to it or for which it failed to take reasonable preventive or punitive measures. But this case is not yet to the stage where these principles are in play.

¹⁶ The dissent faults us for taking no heed of the fact that there may be “important diplomatic implications” of our decision. Dis. op. at 11496. However, this case involves a private dispute of the sort that Congress had in mind when enacting the FSIA. Moreover, as the Supreme Court recently explained, one of the two primary purposes described in § 1602 was “to transfer primary responsibility for deciding ‘claims of foreign states to immunity’ from the State Department to the courts.” Samantar, 130 S. Ct. at 2285; see also id. at 2291 n.19 (“The Department sought and supported the elimination of its role with respect to claims against foreign states and their agencies or instrumentalities.”). Although we could have invited a statement of interest from the State Department, as the dissent suggests, Spain itself did not seek one and manifested no interest at oral argument in soliciting the Department’s views.

¹⁷ This comports with what happened in Altmann. While we did not directly decide the issue, we allowed the suit to go forward against Austria and the government-owned Austrian Gallery though it was alleged that the Klimt paintings at issue in that case had been confiscated in part by German Nazis. See 317 F.3d at 968.

¹⁸ We have previously embraced a burden-shifting analysis under which the plaintiff has the initial burden of showing that an FSIA exception applies. If carried, the burden shifts to the defendant to show by a preponderance of the evidence that the exception does not apply. See Siderman, 965 F.2d at 707-08. The parties do not mention this framework, discuss its applicability to this part of the § 1603(a)(3) analysis, or argue that it affects the outcome in any way.

¹⁹ The second clause of § 1605(a)(3) also differs from the first. The first clause, which pertains to commercial activities of the foreign state itself, requires that those activities be “carried on” in the United States. Section 1603(e) defines “commercial activity carried on in the United States by a foreign state” as “commercial activity carried on by such state and having substantial contact with the United States.” The second clause, applicable here, relates to a “commercial activity” in which an instrumentality of a foreign state engages, and is subject to the broader definition of “commercial activity” in § 1603(d), which does not mention “substantial contact.”

²⁰ The Foundation makes no exhaustion argument, and does not join Spain’s. Nor does the record disclose what remedies are available in either country.

²¹ The requirement in former subsection (a)(7) was to arbitrate. Although not germane to our decision, we note that the arbitration requirement that was part of § 1605(a)(7) disappeared when that subsection was repealed, and reenacted in different form, in § 1605A. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083(b) (1)(A)(iii), 122 Stat. 3, 341 (2008) (repealing 28 U.S.C. § 1605(a)(7)).

²² The Court of Appeals for the D.C. Circuit has expressed its belief that “this is likely correct.” Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 948 (D.C. Cir. 2008). In that case it was unnecessary to decide the issue definitively as the remedy Russia identified was inadequate in any event. However, the court did observe that “nothing in § 1605(a)(3) suggests that plaintiff must exhaust foreign remedies before bringing suit in the United States.” Id.

²³ The Supreme Court has often emphasized the importance of the comprehensiveness of this scheme in interpreting the FSIA. See, e.g., Verlinden, 461 U.S. at 488 (noting that Congress passed the FSIA with “a comprehensive set of legal standards” to free the government from case-by-case diplomatic pressures; to clarify the governing standards; and to assure litigants that decisions are made on purely legal grounds); Altmann, 541 U.S. at 699 (“Quite obviously, Congress’ purposes in enacting such a comprehensive jurisdictional scheme would be frustrated if, in postenactment cases concerning preenactment conduct, courts were to continue to follow the same ambiguous and politically charged standards that the FSIA replaced.” (internal quotation marks omitted)); Weltover, 504 U.S. at 610 (noting that the FSIA “establishes a comprehensive framework”); Mesa v. California, 489 U.S. 121, 136 (1989) (describing the FSIA as “a ‘comprehensive scheme’ comprising both pure jurisdictional provisions and federal law capable of supporting Art. III ‘arising under’ jurisdiction” (quoting Verlinden, 461 U.S. at 496)); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-38 (1989) (determining that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court, even if provisions of another jurisdictional statute might apply, and referring to the House Report, which indicates that the primary purpose of the Act was to “set[ ] forth comprehensive rules governing sovereign immunity,” H.R. Rep. 94-1487, at 12).

²⁴ There can be no serious question this is a non-frivolous contention. See, e.g., Altmann, 317 F.3d at 968 (assuming the facts as alleged were true, the Klimt paintings were “wrongfully and discriminatorily appropriated in violation of international law”); see also Bernstein v. N.V. Nederlandsche-Amerikaansche, Stoomvaart-Maatschappij, 210 F.2d 375, 375-76 (2d Cir. 1954) (per curiam) (quoting State Department Press Release No. 296, April 27, 1949, entitled “Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers,” that publishes an April 13, 1949, letter from Jack B. Tate, Acting Legal Advisor of the Department of State, reiterating the government’s “opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls”; stating the government’s “policy to undo the forced transfers”; and setting forth the policy of the executive branch with respect to claims asserted in the United States for restitution of such property, “to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials”).

²⁵ As in Greenpeace and Millicom, this observation also has to do with a taking unaccompanied by just compensation. Justice Breyer draws on substantive Fifth Amendment law as set out in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999), and Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 (1984), which requires exhaustion of postdeprivation remedies because there cannot be constitutional injury until a state fails to provide just compensation. However, a taking may violate international law when it does not serve a public purpose or is discriminatory in nature—the kind of taking that Cassirer has pled for purposes of jurisdiction in this case—as well as when it is not accompanied by just compensation.

²⁶ Spain and Justice Breyer additionally allude to comment f of §713 of the Restatement (Third), which states that “[u]nder international law, ordinarily a state is not required to consider a claim by another state for an injury to its national until that person has exhausted domestic remedies, unless such remedies are clearly sham or inadequate, or their application is unreasonably prolonged.” Restatement (Third) § 713 cmt. f. On its face this section applies only to claims by one state against another where interests of comity are most compelling. Section 1605(a)(3), by contrast, applies to claims by an individual against a foreign state of which he is not a citizen. But even if applicable to claims other than those by one state against another, and even if imbedded in international law, this section merely reflects “ordinary” practice. The FSIA does not incorporate it, and the legislative history doesn’t mention it. In short, this source does not clearly indicate that Congress meant to require exhaustion even though it did not say so.

²⁷ The ATS confers jurisdiction on United States courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.

¹ One might ask, when there is such a firm supermajority for a position, what is the value of a dissent? The answer is that I pen this dissent to explain my views, because a dissent is a matter of individual judicial statement and individual judicial conscience. The majority’s opinion is reasonable, even persuasive, but only within the limits it sets by invoking the plain-meaning rule. If the language was as plain to me as the majority perceives it to be, I would adopt a similar view and shrug off a concern that Congress has blundered. However, I view the language as ambiguous and I view traditional modes of statutory interpretation as pointing in a different direction, for the reasons that follow. These views may be considered by the bench of another court, by the interested bar, or by other interested persons.

² Although Franco was somewhat ambivalent in conduct relating to Fascist Germany and Fascist Italy, perhaps because of their help in Spain’s Civil War, Franco’s regime in Spain never supported Nazi persecution of Jews and, instead, Spain was a safe haven for Jews fleeing Nazi Germany or occupied France. Indeed it has been estimated that Franco’s policies during World War II saved the lives of tens of thousands of European Jews. Chaim U. Lipschitz, Franco, Spain, the Jews, and the Holocaust 4 (1984).

³ If, contrary to my position, it were definitively decided that subject matter jurisdiction exists under the FSIA in so far as § 1605(a)(3) permits proceeding against any sovereign despite that the property was taken in violation of international law by a different sovereign, then I would conclude that exhaustion would be required by the statute, under § 1605(a)(3), as part and parcel of determining whether there had a been a taking in violation of international law. In this sense a requirement of exhaustion is embedded within the statute’s exception for takings in violation of international law. However, believing that a waiver of sovereign immunity arises only as against a sovereign that took property in violation of international law, I do not have to reach this position.

⁴ Benjamin Cardozo in The Nature of the Judicial Process states:

Benjamin N. Cardozo, The Nature of the Judicial Process 15 (Bibliolife 2009) (1921) (internal footnote omitted). A similar idea is expressed by Sir William Blackstone in his esteemed Commentaries on the Laws of England, where, in discussing “equity,” he states:

William Blackstone, 1 Commentaries on the Laws of England 61 (1765).

⁵ Congress, of course, could amend its language in § 1605(a)(3) to be explicit about whether it means to waive sovereign immunity of an innocent nation like Spain when it is in possession of a property taken by some other person or nation in violation of international law.

⁶ The record does not show any statement of position on proper scope of § 1605(a)(3) to our court from the United States Department of Justice or the United States Department of State. I am not able to discern if the State Department is merely slumbering through this matter, or if, for its own purposes, it is studiously avoiding comment and maintaining a conscious silence at this stage of the case. However, in fairness to the State Department, and the Department of Justice, our court has not heretofore invited their comment on this issue.

⁷ The majority contends that it is “premature” to consider whether Spain is a good faith purchaser. Maj. op. at 11478 n.15. Yet we must consider whether Congress intended to waive the sovereign immunity of such a good faith purchaser, since Cassirer does not allege in the complaint that Spain acquired the painting in bad faith or in violation of international law. Cassirer alleges at most that Spain has “wrongfully detained” the painting after the Nazis took the painting in violation of international law. Nor are we to rely simply on the allegations in the complaint to determine subject matter jurisdiction. We must instead look to facts outside the pleadings to determine whether we have jurisdiction. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (“No presumptive truthfulness attaches to plaintiff’s allegations. Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.”) (citations omitted); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”); Charles Alan Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1350 (3d ed. 2004). We know of no such facts in the record showing that Spain has itself taken the painting in violation of international law.