Moral Duty or Legal Right: Supreme Court Decides Third Nazi-Looted Art Case Hinged on Procedural Questions Under the Foreign Sovereign Immunities Act

*Torra Hausmann

I. Introduction

On April 21, 2022, the Supreme Court quietly issued its third decision in two terms on yet another issue involving the provenance of a piece of artwork looted by Nazis during the Second World War.[1] The petition for certiorari came after a long legal battle dating back to 2005 between the Estate of Lilly Cassirer (Cassirer Family) and the Spain-based Thyssen-Bornemisza National Museum (Foundation).[2] The Cassirer Family posed a narrow question to the Court: whether a federal court hearing state law claims initiated under the Foreign Sovereign Immunities Act (FSIA) should be determined by the forum state’s choice of law rules or by federal common law rules?[3]

FSIA grants immunity to foreign states and their instrumentalities from civil action in the U.S., unless the civil action falls under one of FSIA’s enumerated exceptions.[4] For example, one exception removes immunity for any cases involving “rights in property taken in violation of international law.”[5] FSIA’s purpose “is to spell out, as a matter of federal law, the suits against foreign sovereigns that American courts do, and do not, have power to decide.”[6] Ultimately, the Court held that the forum state’s choice of law rules apply, settling a circuit split regarding the application and interpretation of choice of law rules for FSIA claims.[7]

II. Recent Legal Battles for Looted Property

During the 2021 term, the Court heard oral arguments relating to FSIA procedural questions in other cases involving Nazi-looted property.[8] In Republic of Germany v. Philipp and Republic of Hungary v. Simon, the Court addressed whether foreign states could be sued in the U.S. when that foreign state takes property from its own citizens.[9] The petitioners in Philipp conceded that FSIA provided immunity to foreign nations from lawsuits in U.S. courts.[10] However, they averred that this issue fell within the aforementioned expropriated-property exception.[11] The petitioners in Simon made similar arguments regarding property taken from Hungarian Jews during the Second World War.[12]

In both cases, the Court ultimately ruled for Germany and Hungary, holding that FSIA affords immunity to both foreign sovereign states.[13] The Court relied heavily on the “domestic takings rule,” which provides that “what a country does to property belonging to its own citizens is within its own borders is not the subject of international law.”[14] The Petitioners made multiple arguments regarding the domestic takings rule and FSIA’s expropriation exception, but the Court rejected them all as unpersuasive.[15] These decisions reversed key wins for the petitioners which previously allowed their cases to continue under the exceptions afforded by FSIA.[16] The Cassirer case further expands on the Court’s interpretation of FSIA and its application to Nazi-looted property.[17]

III. Cassirer v. Thyssen-Bornemisza Collection Foundation

The painting at issue is an 1897 Camille Pissarro impressionist piece, entitled Rue Saint-Honoré in the Afternoon, Effect of Rain.[18] This French street-scene painting was initially owned by Lilly Cassirer, a Jewish woman, who ultimately traded and sold the painting under duress in exchange for visas that would allow her and her family to flee Nazi Germany.[19] Records show that Cassirer attempted to reclaim the painting after the war, but German officials claimed the painting was lost or destroyed in bombings during the war.[20]

In reality, the painting was smuggled out of Germany and placed in a New York art gallery, where a wealthy Swiss art collector, Hans Heinrich Thyssen-Bornemisza, purchased it.[21] Spain purchased Thyssen-Bornemisza’s art collection in 1993, including the Pissarro painting.[22] Cassirer died before she knew the painting was preserved; however, her son, Claude Cassirer, initiated proceedings to reclaim the painting after the art gallery rebuffed his request to have it returned.[23] Sadly, he also died before he could see resolution, but his children assumed the role of the petitioners.[24] Respondent Thyssen-Bornemisza Collection Foundation represents the Foundation,[25] which is an instrumentality of Spain.[26]

IV. Jurisdiction and Choice-of-Law Arguments

The procedural issue before the Court was far removed from the criminal and civil issues raised by both parties, namely the validity of the legal title of the Nazi-looted art.[27] The Cassirer Family emphasized that the Court’s decisions in Philipp and Simon were irrelevant to this matter because the facts warranted a different analysis.[28] In those cases, foreign nationals brought suit in the U.S. over alleged wrongful conduct by the foreign national’s own country of citizenship.[29] However, even under FSIA’s expropriation exception, a foreign state does not violate international law when it takes property of its own citizens, so the U.S. was not the appropriate forum.[30] The Cassirer Family argued that Lily Cassirer was no longer a citizen of Germany when her painting was expropriated by Nazi Germany; therefore, Germany’s seizing of her painting violated international law.[31] The Court did not dispute this line of reasoning, adopting the lower court’s finding that the FSIA expropriation exception applied.[32]

Finding that jurisdiction was valid, the Court turned to determining which choice of law rules would apply.[33] The Cassirer Family argued that state choice-of-law rule should apply, while the Foundation argued that federal common law should apply.[34] Because the Cassirer Family initiated the claim under FSIA, the Foundation averred that federal court had federal question jurisdiction and federal common law choice-of-law rules should apply.[35] The Court found this argument unpersuasive under the FSIA statute, which explicitly states that a “‘foreign state shall be liable in the same manner and . . . extent as a private individual under like circumstances.’”[36] Therefore, the Court found that “the standard choice-of-law rule must apply . . . that standard rule is the forum State’s (here, California’s)—not any deriving from federal common law.”[37]

To reach this conclusion, the Court used a simple illustration.[38] Hypothetically, if the Cassirer Family sued a California-based museum instead of a Spanish-based museum, California’s choice-of-law rules would apply regardless of whether the suit was filed in state or federal court under diversity jurisdiction.[39] “[I]f that choice-of-law rule applies [for a] private-museum [], so too it must apply in the suit here, against the Foundation.”[40] Because the language of FSIA calls for a foreign state to be treated the same as a private individual, any other decision would be inconsistent with FSIA.[41] Therefore, the Court vacated the judgment of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings.[42]

V. Conclusion

Justice Kagan emphasized that the merits of the case are far from decided, as the Court has only decided a narrow procedural question that allowed the case to proceed.[43] So, what does this opinion mean? Many may find it hard to ignore the moral underpinnings of a case involving a Nazi-looted painting, the rightful owner (a Holocaust Survivor), and an art museum founded on the purchase of at least one piece of such looted artwork. After the outright rejection of two factually similar cases barely a year prior, even this small win on procedure is better than many anticipated.[44] In a divided America, perhaps a small win can be a small start to common ground.

*Torra Hausmann is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Next year, she will serve as Law Review’s Managing Editor. Torra is also a distinguished scholar in the Royal Graham Shannonhouse III Honor Society. Last Summer, Torra worked as a law clerk at Hyatt & Weber, P.A. in Annapolis. She will continue to work at the firm this summer, focusing primarily on estate planning, estate administration, and civil litigation.

[1] See Cassirer v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 1502 (2022).

[2] See Thyssen-Bornemisza Collection Found. v. Cassirer, 138 S. Ct. 1992 (2018); Kingdom of Spain v. Est. of Cassirer, 564 U.S. 1037 (2011). For the legal filings that initiated the case in 2005, see Cassirer v. Kingdom of Spain, 2006 WL 8423211 (C.D. Cal. Apr. 27, 2006).

[3] Petition for Writ of Certiorariat i, Cassirer, 142 S. Ct. (No. 20-1566) [hereinafter Cassirer Petition for Certiorari].

[4] 28 U.S.C. § 1602.

[5] Id. § 1605(a)(3).

[6] Cassirer, 142 S. Ct. at 1508.

[7] Id. at 1509–10

[8] See Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021); Republic of Hungary v. Simon, 141 S. Ct. 691 (2021).

[9] See Philipp, 141 S. Ct. at 708; Simon, 141 S. Ct. at 691. The Simon opinion was per curium and adopted the opinion of Philipp. Id.

[10] Philipp, 141 S. Ct. at 708–09.

[11] Id.

[12] Petition for Writ of Certiorari at 1, 6, Simon, 141 S. Ct. (No. 18-1447) [hereinafter Simon Petition for Certiorari].

[13] Philipp, 141 S. Ct. at 713; Simon, 141 S. Ct. at 691 (adopting opinion of Philipp).

[14] Philipp, 141 S. Ct. at 715 (“Claims concerning Nazi-era art takings could be brought under the expropriation exception where the claims involve the taking of a foreign national’s property.”).

[15] Id. at 714–15.

[16] See Philipp v. Fed. Republic of Germany, 894 F.3d 406, 411 (D.C. Cir. 2018), vacated, 141 S. Ct. 703 (2021); Simon v. Republic of Hungary, 812 F.3d 127, 149 (D.C. Cir. 2016), abrogated by Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021).

[17] Cassirer v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 1502, 1506 (2022).

[18] Id.

[19] Id.

[20] Cassirer Petition for Certiorari, supra note 3, at 2.

[21] Id. at 2.

[22] Id.

[23] Id. 2–3, 5.

[24] Id. at 3.

[25] Id. at 2.

[26] Id. at 8.

[27] Cassirer v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 1502, 1507 (2022); see also

Cassirer Petition for Certiorari, supra note 3,at 5–9. The Foundation made additional procedural arguments claiming a statute of limitations defense, but this argument was rendered moot because of an expansion of the statute of limitations in cases of Looted Nazi Art by California and Congress. Id. at 6.

[28] Cassirer Petition for Certiorari, supra note 3, at 5–6 n.2. The petition further clarifies that the validity of the FSIA claim is not challenged on appeal, so the Cassirer Family do not address it.

[29] Fed. Republic of Germany v. Philipp, 141 S. Ct. 703, 708–10 (2021); Republic of Hungary v. Simon, 141 S. Ct. 691 (2021) (adopting opinion of Philipp); Simon Petition for Certiorari, supra note 12, at 6.

[30] Philipp, 141 S. Ct. at 715.

[31] Cassirer Petition for Certiorari, supra note 3, at 5–9.

[32] Cassirer v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 1502, 1507 (2022).

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 1508 (quoting 28 U.S.C. § 1606).

[37] Id. at 1510.

[38] Id. at 1509.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 1510.

[43] Id. at 1509.

[44] See, e.g., John Wilkens, U.S. Supreme Court to Hear Case Involving La Mesa Family’s Nazi-looted Painting, San Diego Union-Trib. (Sept. 30, 2021, 4:14 PM),

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