Court Revives Claim to Art

Panel concludes the law at issue doesn't infringe on foreign affairs doctrine.

, The National Law Journal


Camille Pissarro's Rue Sainte-Honore, dans l'apres-midi. Effet de pluie.
Camille Pissarro's Rue Sainte-Honore, dans l'apres-midi. Effet de pluie.

"Despite his initial ruling that the case could go forward, he found that the statute was written for a purpose, and that purpose was to revive otherwise stale claims that arise out of the Holocaust and out of wartimes," the museum foundation's attorney, Thaddeus Stauber, said. He is a partner at Nixon Peabody in Los Angeles who heads the firm's art and cultural-institutions team.

However, the Ninth Circuit, which made no mention of the amendment's legislative history, found the two laws dissimilar — one involved art looted during the Holocaust and the other general claims over "fine art," the panel said. Because it simply dealt with statute of limitations the law did not interfere with U.S. foreign policy, because it "does not create a remedy for wartime injuries by creating a new cause of action for the recovery of artwork," Judge Harry Pregerson wrote.

Pregerson, by the way, provided the sole dissent in the Von Saher opinion. But Stauber insisted the ruling conflicts with Von Saher. "We don't think the decision will withstand an en banc review, and we maintain as we have before that the foundation is the rightful owner of the painting," he said.

Neubauer's attorney, Stuart Dun­woody, a partner at Seattle's Davis Wright Tremaine, doubted whether the Ninth Circuit would grant en banc review. "We're looking forward to presenting our arguments to the district court," he said.

Meanwhile, Schoenberg has appealed a second dismissal of the Von Saher case. After the U.S. Supreme Court denied a petition to review the Ninth Circuit's holding, U.S. District Judge John Walter in Los Angeles tossed the case, concluding on March 22, 2012, that U.S. foreign policy preempted Von Saher's claims. On appeal, Schoenberg challenged Walter's reliance on an amicus brief filed by then-acting U.S. Solicitor General Neal Katyal — and signed by Harold Koh, then the legal adviser to the State Department — in opposing Von Saher's petition for certiorari before the U.S. Supreme Court.

On Aug. 22, the Ninth Circuit heard oral arguments in the Von Saher and Neubauer cases.

Contact Amanda Bronstad at

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