The court ruled in September 2009 that Cassirer could continue his lawsuit, first filed in 2005, against the Spanish museum. But in late December a decision was made to reconsider the ruling, after a majority vote of the judges of the Ninth Circuit Court of Appeals in San Francisco.
The Spanish government and the Thyssen-Bornemisza foundation argue that because Spain is a sovereign nation, both are immune from lawsuit in the US. The foundation’s legal counsel stated to The Art Newspaper: “The Thyssen-Bornemisza Collection Foundation of Madrid thoroughly reviewed the complete historical record on Mr Cassirer’s alleged claim and respectfully denied it. We do not think that the case properly belongs in the US courts. Thus, we are pleased that the Ninth Circuit Court of Appeals’ en banc [all judges] panel will review the question of whether or not the US courts have authority to hear the case.”
The Pissarro painting was sold during World War II and has since changed hands several times. The German government compensated Cassirer’s grandmother, Lilly, with an award of DM120,000 (E61,300) in 1958, when the work was presumed lost. In 1976 it was bought by Baron Thyssen, and passed to the Spanish state when it purchased much of the baron’s collection in 1993. “I’ve waited over 70 years to get our family’s painting back, and Spain’s refusal to honour its promise to return Nazi loot is profoundly disappointing,” Cassirer told The Art Newspaper.
The 2009 ruling said that Cassirer’s claim could proceed under the “expropriation exception” of the US Foreign Sovereign Immunities Act (FSIA), which allows lawsuits in certain cases that involve “rights in property taken in violation of international law”. But Spain argued that it could not be sued under this exception because Germany had allegedly taken the art and only the nation that wrongly took property could lose immunity. The 2009 ruling said this did not matter, however, and also found that the Thyssen-Bornemisza foundation, through purchases, sales and advertising, engaged in “commercial activity” in the US—another requirement under the expropriation exception.
But rather than clear the case for trial, as the 88-year-old Cassirer hoped, the 2009 ruling directed the lower trial court to determine whether under the FSIA, Cassirer must first exhaust his judicial remedies (which prevent a litigant from seeking remedy in a new court until all claims have been exhausted in the original one) in Spain before suing in the US. Judge Sandra Ikuta dissented from this part of the opinion, saying that the court “should not take it upon ourselves” to write an exhaustion of remedies requirement into the FSIA “when Congress has chosen not to”. It is possible that the vote to reconsider the case may stem from a desire by other judges on the full appeals court to weigh in on the exhaustion of remedies question.
The full court will now look anew at the arguments on 22 March in San Francisco.