An emerging new defense to wartime art restitution claims has claimed another case. Although still confined to one district in California, the trend of dismissing such claims as better suited to resolution through the foreign affairs operations of the federal government simply cannot be ignored; wartime claims already struggling to overcome statutes of limitations could be in real trouble. The procedural history is complex, but the effect could be sweeping.
The U.S. District Court in Los Angeles recently dismissed the remaining claims by the heirs of Lilly Cassirer against the Kingdom of Spain and the Thyssen-Bornemisza Foundation for Rue Saint-Honoré, après-midi, effet de pluie by Camille Pissarro, by relying on the foreign affairs preemption doctrine recently invoked by that same court to dismiss the last claims to the Goudstikker collection by Marei Von Saher against the Norton Simon Museum in Pasadena.
We wondered here when the Von Saher case came down what the fallout on future cases might be. We need wonder no more. Although a relatively esoteric area of federal and constitutional law, preemption—the notion that when a federal law occupies enough of a certain topic that the states may not legislate on that topic (so-called “field preemption”) or that when state and federal law conflict, the state law must yield(“conflict preemption”)—may now offer a blow to a wide swath of restitution claims.
The Cassirer case has already set interesting precedent in the 9th Circuit. The Foundation and Spain tried to have the case dismissed before on the grounds that they had not taken anything to cause “rights in property taken in violation of international [to be] at issue” as required by 28 U.S.C. § 1604 of the Foreign Sovereign Immunities Act (FSIA) to bring the case in U.S. federal court—Nazi Germany had. The 9th Circuit disagreed, holding that the FSIA’s removal of sovereign immunity is not limited to the foreign sovereign that did the taking (Germany).
After the case was remanded, the Foundation again moved to dismiss, taking issue with California’s attempt retroactively to extend its statute of limitations (without which the Cassirer claims would have been too late). California Section 354.3 of its Code of Civil Procedure had effectively abolished the statute of limitations for any claim to return Holocaust-era artwork, defined as “any article of artistic significance taken as a result of Nazi persecution during the period of 1929 to 1945.” That question was not addressed in the first Cassirer appeal, which was devoted to the FSIA, but it was met squarely by the Von Saher decisions more recently.
In 2010, the 9th Circuit sent the Von Saher case back to District Court noting that that the foreign policy of the United States is such that it has restituted artworks to nations, not individuals. The California legislature then amended added Code of Civil Procedure § 338(c) to hold (retroactively) a plaintiff only to actual, rather than constructive, notice of her claims to begin the statute of limitations.
The Von Saher court this year deferred to the State Department’s determination that foreign nations, once art is returned there, are better situated to sort through the differences between real and sham transactions during the war, and to the filing by the Solicitor General to similar effect urging the Supreme Court not to take the case directly.
From there it was not a long distance to the Cassirer decision last month. The Cassirer court pointedly noted the similarities between the Cassirer and Von Saher plaintiffs, and was strongly influenced by the Solicitor General’s views. It found field preemption, in no small part because § 338 was enacted in response to the 2010 9th Circuit decision in Von Saher, and a topic of law, if preempted, cannot be overridden by a state legislature.
The matter will undoubtedly end up in the 9th Circuit again (for both cases), which one does not expect to change course. Depending on its effect on litigation elsewhere, perhaps the Supreme Court will take the questions up when given a second chance.