Cassirer v. Kingdom of Spain

*1022OPINION

Claude Cassirer is an American citizen whose grandmother’s Pissarro painting was allegedly confiscated in 1939 by an agent of the Nazi government in Germany because she was a Jew. He filed suit in federal district court to recover the painting, or damages, from the Kingdom of Spain and the Thyssen-Bornemisza Collection Foundation, an instrumentality of Spain, which now claims to own the painting. Spain and the Foundation moved to dismiss, asserting, among other things, sovereign immunity pursuant to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602, et seq. The FSIA makes a foreign state immune from suit in the courts of the United States unless an exception applies. The district court denied the motions, Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157 (C.D.Cal.2006), and also denied motions to dismiss for lack of a case or controversy, personal jurisdiction, and proper venue. Spain and the Foundation appealed, raising most of these issues.

Cassirer relies on the “international takings” or “expropriation” exception in the FSIA that confers subject matter jurisdiction over a foreign state when “rights in property taken in violation of international law” are at issue; the property is owned “by an agency or instrumentality of the foreign state”; and the instrumentality “is engaged in a commercial activity in the United States.” 28 U.S.C. § 1605(a)(3). Spain and the Foundation maintain that this exception is not applicable because the painting was taken in violation of international law by Germany, not by either of them, and because the Foundation is not engaged in commercial activity in the United States sufficient to trigger the exception. Spain contends that Cassirer should have exhausted remedies in Germany or Spain, but failed to do so. Spain also contests the existence of a case or controversy, while the Foundation challenges the exercise of personal jurisdiction.

Our review is constrained because this is an appeal before final judgment has been entered. Generally, we may review only final decisions of a district court, but our jurisdiction also extends to a small category of collateral orders that are separate from the merits and can’t effectively be reviewed on appeal from a final judgment. A ruling that denies sovereign immunity is such an order. Consequently, we may hear the appeal taken from the district court’s order denying the motions to dismiss for lack of subject matter jurisdiction based on sovereign immunity. But its decision declining to dismiss the action for lack of personal jurisdiction and a case or controversy is fully reviewable on appeal after judgment. For this reason we have no appellate jurisdiction over these issues, and will dismiss the appeal as to them.

On the issue of sovereign immunity, we conclude that §. 1605(a)(3) does not require the foreign state against whom the claim is made to be the one that took the property. We are satisfied that the record supports the district court’s finding of a sufficient commercial activity in the United States by the Foundation. The statute does not mandate that the plaintiff exhaust local remedies for jurisdiction to lie, and we do not consider a prudential exhaustion analysis given our limited appellate jurisdiction. This being so, we will affirm the order that the expropriation exception applies such that the court has subject matter jurisdiction over the action as to both Spain and the Foundation.

I

The property at issue is an oil painting by the French impressionist master Camille Pissarro, Rue Saint-Honore, apres*1023midi, effet de pluie.1 It was completed in 1897 and sold in 1898 to Cassirer’s great-grandfather, Julius Cassirer, who lived in Germany. The painting remained in the family for some forty years, eventually passing to Lilly Cassirer, Cassirer’s grandmother, upon her husband’s death. She later remarried.

In 1939 Lilly decided she had no choice but to leave Germany. By that time — as the district court judicially noticed — German Jews had been deprived of their civil rights, including their German citizenship; 2 their property was being “Aryanized”; and the Kristallnacht pogroms had taken place throughout the country. Permission was required both to leave and to take belongings. The Nazi government appointed Munich art dealer Jakob Scheidwimmer as the official appraiser to evaluate the works of art, including the Pissarro painting, that Lilly wished to take with her. Scheidwimmer refused to allow her to take the painting out of Germany and demanded that she hand it over to him for approximately $360. Fearing she would not otherwise be allowed to go, and knowing she would not actually get the money because the funds would be paid into a blocked account, Lilly complied.

Scheidwimmer traded the painting to another art dealer, who was also persecuted and fled Germany for Holland. After Germany invaded Holland, the Gestapo confiscated the painting and returned it to Germany, where it was sold at auction to an anonymous purchaser in 1943. It turned up at a New York gallery in 1952 and was sold to a St. Louis collector; it was sold again in 1976 to a New York art dealer who, in turn, sold it to Baron Hans-Heinrich Thyssen-Bornemisza. Bornemisza lived in Switzerland and was a preeminent private collector.

In 1988, Spain paid the Baron $50 million to lease his collection for ten years. Five years into the lease, Spain paid the Foundation $327 million to purchase the entire collection, including the Pissarro painting. As part of the agreement, Spain provided the Villahermosa Palace in Madrid to the Foundation, free of charge, for use as the Thyssen-Bornemisza Museum.

Claude Cassirer, Lilly’s heir, discovered in 2000 that the painting was on display at the Thyssen-Bornemisza Museum in Madrid. He asked Spain’s Minister for Education, Culture and Sports, who was chair of the Foundation’s board, to return it. The request was refused. In 2003, five members of Congress wrote the Minister requesting return of the painting; this request, too, was rejected. Cassirer did not try to obtain the painting through judicial proceedings in Spain, or to pursue other remedies in Spain or Germany, before bringing suit in the United States.

He filed this action against the Foundation and Spain in the Central District of California on May 10, 2005. The complaint avers that Germany confiscated the painting based on Lilly’s status as a Jew and as part of its genocide against Jews; hence the taking was in violation of international law. It alleges that the Foundation is engaged in numerous commercial activities in the United States that include *1024borrowing art works from American museums; encouraging United States residents to visit the museum and accepting entrance fees from them; selling various items to United States citizens including images of the painting; and maintaining a web site where United States citizens may buy admission tickets using United States credit cards and view the paintings on display, including Rue Saint-Honore, apres-midi, effect de pluie. The complaint seeks imposition of a constructive trust and return of the painting or, alternatively, recovery of damages for conversion.

The Foundation filed a motion to dismiss based on lack of subject matter and personal jurisdiction, and improper venue. Spain followed with its own motion to dismiss. The district court allowed Cassirer to conduct jurisdictional discovery into the Foundation’s commercial activity in the United States. Both motions were then denied. The court certified the matter for interlocutory appeal under 28 U.S.C. § 1292(b), though Spain and the Foundation abjured this route in favor of appeal on the basis of the collateral order doctrine.

In this court, Cassirer filed a motion to dismiss as to issues other than those pertaining to sovereign immunity on the ground that appellate jurisdiction is lacking.3 The original panel agreed that the district court’s denial of motions to dismiss for lack of personal jurisdiction and case or controversy is not immediately appealable as a collateral order. Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1054-55 (9th Cir.2009). The panel held that § 1605(a)(3) does not require Spain to be the entity that expropriated the painting in violation of international law, and that the Foundation, which owns the painting, engaged in sufficient commercial activity in the United States to satisfy the FSIA. It further held that exhaustion is not statutorily required; however, a majority concluded that the district court erred in failing to conduct a prudential exhaustion analysis, and remanded for it to do so. We decided to rehear the case en banc. Cassirer v. Kingdom of Spain, 590 F.3d 981 (9th Cir.2009).4

II

We must consider the bounds of our appellate jurisdiction at the outset. By statute, 28 U.S.C. § 1291, we have jurisdiction to review “final decisions” of the district court. A final decision is one that ends the litigation on the merits, Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003), which no decision that is before us does. Still, we may review “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id.

It is well settled that sovereign immunity is within this small category of *1025cases from which an immediate appeal will lie. See, e.g., Gupta v. Thai Airways Int'l, Ltd., 487 F.3d 759, 763-65 (9th Cir.2007); In re Republic of the Philippines, 309 F.3d 1143, 1148-49 (9th Cir.2002). The point of immunity is to protect a foreign state that is entitled to it from being subjected to the jurisdiction of courts in this country, protection which would be meaningless were the foreign state forced to wait until the action is resolved on the merits to vindicate its right not to be in court at all. Thus, we have jurisdiction to review the district court’s order denying sovereign immunity.

The same is not true of the court’s orders denying motions to dismiss for lack of a case or controversy and personal jurisdiction. Van Cauwenberghe v. Biard, 486 U.S. 517, 526-27, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), and Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003), both recognize that denial of a motion to dismiss for lack of personal jurisdiction is neither a final decision nor appealable under the collateral order doctrine. The FSIA presents a novel situation, however, in that personal jurisdiction over a foreign state exists under the statute if it is not immune and if proper service has been made. 28 U.S.C. § 1330(b); Altmann, 317 F.3d at 969. Because the one follows from the other, the rulings arguably are so related that we should consider extending our collateral order jurisdiction over sovereign immunity to resolve personal jurisdiction as well. See Swint, 514 U.S. at 50-51, 115 S.Ct. 1203(discussing but not deciding whether a court of appeals with jurisdiction over one ruling can review related rulings that are not themselves independently reviewable). We see no reason to do so here, for the decision points are different.

The Foundation argues that exercising personal jurisdiction offends due process. To resolve this argument, we would need to decide whether a foreign state or an instrumentality of a foreign state is a “person” for purposes of the Due Process Clause, whether the FSIA incorporates the requirements of “minimum contacts,” and whether the Foundation has sufficient minimum contacts with the United States to support general or specific jurisdiction. Its stance on sovereign immunity, on the other hand, turns on whether the takings exception applies only to a foreign state that has itself taken property in violation of international law, and whether the Foundation has engaged in a commercial activity in the United States. In short, a decision that a foreign state is not entitled to sovereign immunity under the FSIA is not “inextricably intertwined” with a decision that the exercise of personal jurisdiction comports with due process. See id. at 51, 115 S.Ct. 1203. Therefore, we decline to expand our collateral order jurisdiction to append review of the latter to the former.

Although we have not previously addressed whether denial of a motion to dismiss for lack of a case or controversy is an immediately appealable collateral order, other circuits have indicated that questions of standing, case or controversy, and ripeness are, like the question of personal jurisdiction, not immediately appealable. See, e.g., Moniz v. City of Fort Lauder-dale, 145 F.3d 1278, 1281 n. 3 (11th Cir.1998) (standing); Triad Assocs., Inc. v. Robinson, 10 F.3d 492, 496-97 n. 2 (7th Cir.1993) (same); Crymes v. DeKalb County, 923 F.2d 1482, 1484 (11th Cir.1991) (ripeness); Shanks v. City of Dallas, 752 F.2d 1092, 1098 n. 9 (5th Cir.1985) (ease or controversy and standing); City of Detroit v. Grinnell Corp., 495 F.2d 448, 474-75 (2d Cir.1974) (ripeness and standing), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000). We routinely consider these issues *1026on appeal from a final judgment, see, e.g., Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir.2009), and are not persuaded that the district court’s order refusing to dismiss this action for lack of a case or controversy should be immediately appeal-able. While a favorable ruling would remove Spain from the lawsuit just as immunity would do, so too would prevailing on a myriad of other pretrial motions. Achieving an effectively similar result is no reason to bring denial of such motions within the “small category” of decisions that merit immediate review, otherwise the category would be small no longer.

Accordingly, we have no appellate jurisdiction to review the district court’s denial of motions to dismiss for lack of personal jurisdiction and a case or controversy.

III

As both the Supreme Court and we have explained the genesis of the FSIA at length, see Republic of Austria v. Altmann, 541 U.S. 677, 688-91, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-89, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 705-06(9th Cir.1992), we will not do so again except to say that in 1976, Congress codified the “restrictive principle” of sovereign immunity with “a comprehensive statute containing a ‘set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities.’ ” Altmann, 541 U.S. at 691, 124 S.Ct. 2240 (quoting Verlinden, 461 U.S. at 488, 103 S.Ct. 1962). The “restrictive principle,” then embraced by most nation states, recognized immunity for public acts, that is to say, acts of a governmental nature typically performed by a foreign state, but not for acts of a private nature even though undertaken by a foreign state. Commercial activity is a good example of conduct that would ordinarily be engaged in by a private entity. If a foreign state is not entitled to immunity, then it is liable on claims for relief just like a private individual. 28 U.S.C. § 1606.

“The language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality ....” First Nat’l City Bank v. Banco Para El Comercio, 462 U.S. 611, 620, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983); H.R.Rep. No. 94-1487, at 12 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6610(“The bill is not intended to affect the substantive law of liability.”).5 Put differently, the FSIA simply limits the jurisdiction of American courts to hear claims against foreign states. It creates no cause of action.

Sovereign immunity is a threshold issue because it goes to the court’s subject matter jurisdiction. It is a question of law that we review de novo, although to the extent informed by factual findings made by the district court, those findings are reviewed for clear error.

Under the statutory scheme, a district court has subject matter jurisdiction over claims against a foreign state with respect to which the foreign state is not entitled to immunity. 28 U.S.C. § 1330(a).6 A foreign state is immune except as specified in *1027the FSIA. 28 U.S.C. § 1604.7 The FSIA has a number of exceptions,8 but Cassirer invokes only the “expropriation” exception in § 1605(a)(3). Section 1605(a)(3) provides that a foreign state is not immune in any case

in which rights in property taken in violation of international law are in issue and 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; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States[.]

So far as the first condition is concerned, a taking offends international law when it does not serve a public purpose, when it discriminates against those who are not nationals of the country, or when it is not accomplished with payment of just compensation. See Siderman, 965 F.2d at 711-12; West v. Multibanco Comermex, S.A., 807 F.2d 820, 831-33(9th Cir. 1987). As we noted in Siderman, both the House Report on the FSIA and the Restatement of Foreign Relations Law reflect a similar understanding.9 “At the jurisdictional stage, we need not decide whether the taking actually violated international law; as long as a ‘claim is substantial and non-frivolous, it provides a sufficient basis for the exercise of our jurisdiction.’ ” Siderman, 965 F.2d at 711(quoting West, 807 F.2d at 826). On appeal, neither Spain nor the Foundation contends that Germany’s actions with respect to the painting were not a taking in violation of international law.

So far as the commercial activity prong is concerned, just the second clause is pertinent here as there is no dispute the painting is not “present in the United States.” Thus, there is jurisdiction under § 1605(a)(3) if the Foundation, which admittedly owns the painting and concedes it is an instrumentality of Spain for purposes of the statute, “is engaged in a commercial activity in the United States.” “A ‘commercial activity’ means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d).

With this by way of background, we turn to the questions that are dispositive here: whether § 1605(a)(3) covers a claim *1028against Spain and the Foundation when neither was the foreign state that took the painting in violation of international law; whether the Foundation is engaged in a sufficient commercial activity in the United States; and whether exhaustion of remedies is required as a prerequisite to jurisdiction.

A

The Foundation’s lead point, joined by Spain, is that the takings exception applies only to the foreign state that expropriated the property and not to some later purchaser who was not complicit in the taking. More specifically, the Foundation contends that because the language of § 1605(a)(3) does not identify the taker, the text can as easily be read to imply a taking “by the foreign state” as a taking “by any foreign state.”

We agree with the district court that the plain language of the statute does not require that the foreign state against whom the claim is made be the entity which took the property in violation of international law. Section 1605(a)(3) simply excepts from immunity “a foreign state” in any case “in which rights in property taken in violation of international law are in issue.” (emphasis added). The text is written in the passive voice, which “focuses on an event that occurs without respect to a specific actor.” Dean v. United States, — U.S. —, 129 S.Ct. 1849, 1853, 173 L.Ed.2d 785 (2009) (so , observing with respect to the phrase “if the firearm is discharged”); see Watson v. United States, 552 U.S. 74, 80-81, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007) (noting that use of the phrase “to be used” reflects “agnosticism ... about who does the using”). Thus, the text already connotes “any foreign state.” It would have to be rewritten in order to carry the meaning the Foundation ascribes to it. That is, the statute would need to say that a foreign state is not immune in a case “in which rights in property taken by the foreign state in violation of international law are in issue.”

In the normal event our task is over when a statute is clear on its face. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 93, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007). The rule is no different with the FSIA. See, e.g., Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1087-88 (9th Cir.2007) (“In interpreting the FSIA, we first look to the plain meaning of the language employed by Congress.” (internal quotation marks and citation omitted)); Phaneuf v. Republic of Indonesia, 106 F.3d 302, 308 (9th Cir.1997) (observing in an FSIA case that “[w]e assume ... ‘the ordinary meaning of [the statutory] language accurately expresses the legislative purpose’ ” (quoting Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1473 (9th Cir.1995))). Thus, we take the plain meaning of the text to be the meaning that Congress intended. As the words and grammatical construct in § 1605(a)(3) are clear, we understand that Congress meant for jurisdiction to exist over claims against a foreign state whenever property that its instrumentality ends up claiming to own had been taken in violation of international law, so long as the instrumentality engages in a commercial activity in the United States.10

*1029Although the Foundation argues that evolution of the takings exception undermines this interpretation, it points to nothing in the legislative history which “clearly indicates that Congress meant something other than what it said.” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877(9th Cir.2001) (describing the standard) (internal quotation marks omitted). Instead, relying on two Fifth Circuit decisions, Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne De Navigation, 730 F.2d 195, 204(5th Cir.1984), and de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1395 (5th Cir.1985), and § 455 of the Restatement (Third), it claims that courts and commentators have long understood that the exception applies only to states that have done the taking. Vencedora was concerned with whether Algeria or an Algerian-owned corporation that had towed an abandoned vessel “owned or operated” it; in that context, the court stated that the legislative history of the FSIA indicates that § 1605(a)(3) was intended to reach any foreign agency that expropriated property or is using expropriated property taken by another branch of the foreign state. 730 F.2d at 204 (citing 1976 U.S.C.C.A.N. 6604, 6618).11 The court held that the Algerian-owned corporation did not assume control of the vessel for the benefit of the Algerian government. Vencedora thus speaks to a different issue; the court had no occasion to comment on whether the taker and the defendant must be the same. The statement upon which the Foundation relies does not, in any event, say the opposite; that is, it does not say that § 1605(a)(3) applies only to the state that has done the wrongful expropriating. de Sanchez does nothing more than quote Vencedora.12 Neither persuades us that Congress clearly meant something *1030other than what it said in § 1605(a)(3). Nor does the Restatement,13 which paraphrases what the FSIA provides but sheds no light on congressional intent.

Our reading of the text is buttressed by the articulated purpose of the FSIA to immunize foreign states for their public, but not for their commercial, acts. As Congress declared: “Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned.” 28 U.S.C. § 1602(Findings and Declaration of Purpose). Consistent with this purpose, § 1605(a)(3) restricts jurisdiction over an entity of a foreign state that owns property taken in violation of international law to those engaged in commercial activity in the United States. No other restriction is manifest.14

The Foundation asks us to compare § 1605(a)(3) with § 1605(a)(4), which is known as the “succession” exception, and to follow how we construed that exception in Republic of Philippines, 309 F.3d at 1150-51. Section 1605(a)(4) exempts a foreign state from immunity in any case “in which rights in property in the United

States acquired by succession ... are in issue.” As the Foundation points out, the word “acquired” is not followed by the phrase “by the foreign state,” yet this is the meaning we gave to the exception in Republic of Philippines. In that case, creditors of the Estate of Ferdinand E. Marcos sought to collect Marcos assets held by Merrill Lynch; Merrill Lynch filed an interpleader action to resolve conflicting claims, naming, among possible claimants, the Republic of the Philippines. The Republic asserted sovereign immunity; the creditors relied on the succession exception even though the Republic had not acquired any right in the assets by succession. The creditors argued that jurisdiction nevertheless attached because the statute requires only that rights acquired by succession be in issue, not necessarily the rights of the sovereign. We concluded that the exception applies only when the foreign state’s interest is as a successor to a private party. In so doing, we relied in part on legislative history which explains that immunity may not be claimed under this exception when the suit against the foreign state relates to property that it has *1031obtained by gift or inheritance and that is located or administered in the country where suit is brought, because in this capacity — asserting rights in an estate— “ ‘the foreign state claims the same right which is enjoyed by private persons.’ ” Id. at 1151 (quoting H.R.Rep. No. 94-1487, at 20, 1976 U.S.C.C.A.N. 6604, 6619). In other words, to conform to the FSIA’s declared purpose, we read § 1605(a)(4) as exempting a foreign state only if it were claiming rights as a successor because it is only in that role that it is acting like a private person. By contrast, § 1605(a)(3) on its face confers jurisdiction over a foreign state only if the foreign state that is sued claims to own illegally confiscated property and acts like a private person by engaging in a commercial activity in the United States. Section 1605(a)(3), therefore, is already consonant with the purpose of the FSIA.

Finally, the Foundation posits that bizarre consequences unintended by Congress will occur if § 1605(a)(3) is interpreted as granting jurisdiction against foreign entities regardless of who did the expropriating or when, and regardless of whether the defendant was a good faith purchaser.15 We cannot say whether floodgates might open, but in any event, jurisdictional boundaries are for Congress to set, not for courts to write around. This said, restraints are in place that deflect the risk. The FSIA is purely jurisdictional; it doesn’t speak to the merits or to possible defenses that may be raised to cut off stale claims or curtail liability. In addition, the statute constrains its own reach by restricting jurisdiction to rights in property, taken in violation of international law, that is now in the hands of a foreign state or its instrumentality, when that instrumentality is engaged in a commercial activity in the United States. And decisional law further limits the universe of potential claimants, for instance, by excluding nationals of the expropriating country from the scope of § 1605(a)(3). See, e.g., Siderman, 965 F.2d at 711; Chuidian, 912 F.2d at 1105.16

In sum, the statute states that the property at issue must have been “taken in violation of international law.” It does not state “taken in violation of international law by the foreign state being sued.” The legislative history does not clearly indicate that Congress meant something other than what it said. Indeed, the text would have *1032to be redrafted to say what the Foundation wishes it said. For these reasons, we conclude that § 1605(a)(3) does not require that the foreign state against whom suit is brought be the foreign state that took the property at issue in violation of international law.17

B

The Foundation maintains that its activities in the United States are de minimis, and lack the requisite connection to the property in question. It submits that the district court incorrectly held that the activity need not be “commercial” in the ordinary sense, or be related to the expropriated property, or be substantial.

It is clear that activity need not be motivated by profit to be commercial for purposes of the FSIA. Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d 1018, 1024(9th Cir.1987). As § 1603(d) provides, the commercial character of an activity depends on its nature rather than its purpose. Thus, it does not matter that the Foundation’s activities are undertaken on behalf of a non-profit museum to further its cultural mission. See Sun v. Taiwan, 201 F.3d 1105, 1107-08 (9th Cir.2000) (holding that Taiwan’s promotion and operation of a cultural tour was commercial activity despite being free and having been done to foster understanding). The important thing is that the actions are “the type of actions by which a private party engages in trade and traffic or commerce.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (internal quotation marks omitted); Siderman, 965 F.2d at 708(“The central question is ‘whether the activity is of a kind in which a private party might engage.’ ” (quoting Joseph, 830 F.2d at 1024)).

After allowing jurisdictional discovery on the issue, the district court found that the Foundation engages in commercial activities in the United States that include: buying books, posters, and post cards; purchasing books about Nazi expropriation of works of art; selling posters and books, and licensing reproductions of images; paying United States citizens to write for exhibit catalogs; shipping gift shop items to purchasers in the United States, including a poster of the Pissarro painting; recruiting writers and speakers to provide services at the museum; permitting a program to be filmed at the museum that included the Pissarro painting and was shown on Iberia Airlines flights between Spain and the United States; placing advertisements in magazines distributed in the United States, and sending press releases, brochures, and general information to Spain’s tourism offices in the United States, at least one of which mentions the Pissarro by name; distributing the museum bulletin, “Perspectives,” to individuals in the United States; borrowing and loaning artworks, though not the painting; and maintaining a website through which United States citizens sign up for newsletters, view the collection — including the Pissarro painting — and purchase advance admission tickets through links to third-party vendors. Cassirer, 461 F.Supp.2d at 1173-75. These findings are supported in the record and are not clearly erroneous.18

*1033The Foundation faults the district court for having failed to require a nexus between the activity and the lawsuit, as well as a quantum of activity that has a substantial connection with the United States. It suggests that Congress meant to meld traditional concepts of personal jurisdiction with subject matter jurisdiction under the FSIA. However, the second clause of § 1605(a)(3) contains no requirement that a lawsuit arise out of specific activity having to do with the property in the United States, that is, there is no express analogue to the traditional doctrine of specific jurisdiction, nor does it explicitly require any particular level of activity or conduct commensurate to that normally contemplated for general jurisdiction. In this, § 1605(a)(3) differs from the “commercial activity” exception in § 1605(a)(2), which does provide that a foreign state is not immune from jurisdiction where “the action is based upon a commercial activity carried on in the United States by the foreign state” or upon an act committed elsewhere that “causes a direct effect in the United States.” See, e.g., Gates v. Victor Fine Foods, 54 F.3d 1457, 1463(9th Cir.1995) (applying § 1605(a)(2) and indicating the focus for purposes of the “commercial activity” exception is on specific acts that form the basis of the suit). The difference between the two exceptions shows that Con