A dispute over the ownership of a painting stolen by Nazis during World War II appears to be ticketed for a return trip to the U.S. Supreme Court, after a federal appeals court turned down a request for a new hearing from the Jewish family who say the court wrongly decided they can't use California law to force a museum in Spain to turn over the artwork.
On July 9, the full U.S. Ninth Circuit Court of Appeals said they would allow a ruling from three Ninth Circuit judges to stand, which essentially permitted the Thyssen-Bornemisza National Museum in Madrid, Spain, to keep a painting by renowned impressionist painter Camille Pissarro, even though the work had been taken by the Nazis from a prominent Jewish family in Germany amid the Holocaust.
The decision not to rehear the case drew a sharp dissent from two Ninth Circuit judges, who said the decision was wrong both legally and morally.
"The issue is critically important," said Judge Susan P Graber. She was joined in the dissent by Judge Richard A. Paez.
"The world is watching. We should reach the result that is both legally compelled and morally correct. I am deeply disappointed by this court's decision, which has the unnecessary effect of perpetuating the harms caused by Nazis during World War II."
An attorney for the Cassirer family, who are seeking the return of the painting, said they will seek to now send the matter to the U.S. Supreme Court. If accepted, it would mark the second time the case would have landed before the high court in the past few years.
“We are very disappointed in the Ninth Circuit’s decision," said attorney David Barrett, of the firm of Boies Schiller, on behalf of the Cassirer family.
"The Court misconstrued California law, as Judge Graber’s dissent demonstrated in detail, and failed to address overarching issues of Federal law that were raised in the Cassirers’ petition. We expect to seek review by the U.S. Supreme Court, which already unanimously reversed the Ninth Circuit once in this case.”
The case has worked its way up the ladder of the courts and back again since Holocaust survivor Claude Cassirer and his family filed suit in 2005 against the Spanish national museum. The lawsuit demanded the return of a painting, known as Rue Saint–Honoré, après-midi, effect de pluie, dating from 1892 when it was created by Pissarro.
According to court documents, the painting was owned in 1939 by Lilly Cassirer, a German Jew. At that time, she was allegedly pressured into selling the painting for a suppressed price to a Nazi named Jakob Scheidwimmer to secure the funds to cover the tax the Nazi government forced Jews to pay to leave Germany.
The painting was then later resold to a German businessman. But it was later seized by the Nazi German government. In 1943, the painting was auctioned in Germany, and then was twice sold in the U.S., before ending up in the collection of Swiss Baron Hans Heinrich Thyssen-Bornemisza in New York.
Thyssen-Bornemisza then sold his entire collection to Spain in 1993, who placed it in their national museum.
That is where Lilly Cassirer's heir, Claude Cassirer, discovered the painting, prompting the lawsuit.
Claude Cassirer died while the lawsuit was pending, but his family has continued the fight to force Spain to turn over the artwork.
The lawsuit has consistently faced a vexing question: Which law should apply to govern the dispute?
In 2019, the Ninth Circuit decided the laws of Spain should control. Under Spanish law, any property - even that stolen amid historic genocide - can be kept by those later acquiring it, so long as it had been kept long enough and the party from whom it was stolen likely could have known where to find it.
But the Ninth Circuit's decision was reversed in 2022 by the U.S. Supreme Court, who found in a unanimous ruling that California state law should apply, because under federal law, the same rules should apply to lawsuits against foreign nations as apply to disputes against private parties. The high court sent the matter back to the Ninth Circuit for further proceedings.
After the California Supreme Court declined to answer the question concerning how to interpret their state law in the matter, the Ninth Circuit again decided in 2023 that Spain should prevail.
They said allowing California law to control in the case would wrongly "impair" Spain's laws. They said the Cassirer family's claim to be governed by California law rested on "the fortuity that Claude Cassirer moved to California in 1980.
They rejected the assertion that the museum held a bad title to the property, because they could not obtain a legally enforceable title in the U.S. for such stolen art.
In that ruling, Ninth Circuit Judge Consuelo Callahan agreed that Spain's own international agreement should have required the national museum to return the painting, but U.S. courts can't compel them to do so.
The Cassirer family then asked the full Ninth Circuit court to reconsider the ruling, and rehear the case en banc, before a panel of 11 judges, rather than three.
The Ninth Circuit, however, declined.
In the dissent, Judge Graber said she believed it was clear California law should apply in the case.
She said California's law, passed in 2010, is new and targeted directly at the problem at the heart of the case: Artwork and other valuable property stolen by the Nazis.
By contrast, Graber noted, Spain's 19th Century law is "antique" and "isolated."
By allowing Spain's law to control the case, Graber said the judges "would eviscerate entirely the function and purpose of California's law except in the rarest of circumstances..."
"Applying Spain's law here and in other cases involving artwork stolen by Nazis would completely undermine the function and purpose of California's law," Graber wrote.
Further, Graber noted Spain and its TBC museum cannot demonstrate the museum had no idea the painting was stolen and illegitimately in their possession.
"There has never been a finding that TBC held the painting in good faith," Graber said.
"... TBC bought the painting from a family well known for trafficking in art stolen by Nazis; the Nazis targeted Pissarro paintings; a torn label revealed that this particular Pissarro painting had been in Berlin; and the painting had missing labels akin to a filed-off serial number - yet TBC declined to investigate at all the provenance of the painting," Graber wrote. "TBC may have lacked actual knowledge that the painting was stolen, but there is little question that, had the district court reached the question, it would have ruled that TBC lacked good faith."