Cassirer

Before: THOMAS G. NELSON, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge N.R. SMITH; Partial concurrence and Partial Dissent by Judge IKUTA.

N.R. SMITH, Circuit Judge:

Claude Cassirer ("Cassirer") filed this action in federal district court against the Kingdom of Spain ("Spain") and the Thyssen-Bornemisza Collection Foundation (the "Foundation") [1] to recover a Camille Pissarro painting now on display at the Foundation's museum in Madrid, Spain. Cassirer alleges that the painting was taken from his grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany. On appeal, Appellants challenge the district court's denial of their respective motions to dismiss for lack of (1) personal jurisdiction, (2) standing, (3) a justiciable case or controversy, and (4) subject matter jurisdiction based on sovereign immunity.

We dismiss this appeal with regard to Appellants' challenges to personal jurisdiction, standing, and the existence of a justiciable case or controversy. We lack appellate jurisdiction because there has been no final judgment and these issues are not immediately appealable under the collateral order…

Opinion by Judge N.R. SMITH; Partial concurrence and Partial Dissent by Judge IKUTA.

Claude Cassirer (“Cassirer”) filed this action in federal district court against the Kingdom of Spain (“Spain”) and the Thyssen-Bornemisza Collection Foundation (the “Foundation”) 1 to recover a Camille Pissarro painting now on display at the Foundation’s museum in Madrid, Spain. Cassirer alleges that the painting was taken from his grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany. On appeal, Appellants challenge the district court’s denial of their respective motions to dismiss for lack of (1) personal jurisdiction, (2) standing, (3) a justiciable case or *1052 controversy, and (4) subject matter jurisdiction based on sovereign immunity.

We dismiss this appeal with regard to Appellants’ challenges to personal jurisdiction, standing, and the existence of a justiciable case or controversy. We lack appellate jurisdiction because there has been no final judgment and these issues are not immediately appealable under the collateral order doctrine.

However, under the collateral order doctrine, we have jurisdiction to consider the issue of sovereign…

concurring in part and dissenting in part:

I concur in Sections I, II and III. I disagree with Section IV, however, because in my view we should not take it upon ourselves to write an exhaustion requirement into the Foreign Sovereign Immunities Act (“FSIA”) when Congress has chosen not to. In enacting the FSIA, Congress created uniform and clear standards for litigants seeking to bring lawsuits against foreign sovereigns, and there is no indication that Congress contemplated that courts would impose an additional exhaustion requirement on litigants. Moreover, our case law on prudential exhaustion in the context of the Alien Tort Statute (“ATS”) is both inapposite and non-binding. Because imposing a judge-made exhaustion requirement here is contrary to Congressional intent and does nothing more than create a trap for the unwary, I respectfully dissent.

I

As always, we begin with the plain language of the statute. Prince v. Jacoby, 303 F.3d 1074, 1079 (9th Cir.2002). As the majority acknowledges, the FSIA does not include an exhaustion requirement. Maj. Op. at 1060-61.

Nor is there any evidence that Congress intended to require plaintiffs to exhaust their remedies in a foreign…