After recent expansions of the scope of the Foreign Sovereign Immunities Act, the 2nd Circuit Court of Appeals has narrowed that statute’s route of access to the courthouse again. The 2nd Circuit affirmed on November 30, 2011 the District Court’s March 11, 2011 dismissalof Andrew Orkin’s claims to recover a Vincent Van Gogh drawing against the Swiss Confederation, the Oskar Reinhart Foundation, and the Oskar Reinhart Collection.
Oskar Reinhart bought the work from Orkin’s great-grandmother, Margarethe Mauthner, in Germany in 1933. The drawing eventually passed to Switzerland, and there was no suggestion that Switzerland itself had taken it (illicitly or otherwise). Orkin invoked the FSIA against the now-owner of the painting (a foreign sovereign), arguing that that the sale by Mauthner to Reinhart was a taking in violation of international law because the circumstances of Germany’s persecution of its Jewish population at the time made the sale one under duress. This argument certainly finds support in the long-standing presumption implicit, at least, in the Washington Principles, that any transaction involving a targeted group in that era should be viewed with suspicion. Moreover, this summer’s denial of certiorari review by the Supreme Court of the Cassirer and Von Saher cases from the 9th Circuit, Orkin’s argument that whatever sovereign now has the work is subject to FSIA jurisdiction, in combination with his theory of duress, seemed well position to survive a motion to dismiss—and even to open up a new path for claimants to get into court where works were sold out of desperation (as so many were).
The District Court in Manhattan and the 2nd Circuit disagreed, however. With the benefit of this summer’s certiorari denial available, the 2nd Circuit read those recent cases still to require that the initial taking have been done by a foreign state, even if not the one now holding the work. That view ruled out Reinhart (a private individual) as a trigger for the statute, no matter what the ethics of his conduct. Barring a discretionary review by the Supreme Court (which, given its decision to pass on the 9th Circuit cases, seems unlikely), the Reinhart case is over.
This case will no doubt inspire opposing responses; foreign sovereigns not directly implicated in the Second World War may breathe easier about their collections, while claimants may despair of a restriction on their claims, particularly as statutes of limitations loom.