Lucas Cranach the Elder's Adam and Eve.
Lucas Cranach the Elder’s Adam and Eve. (Photo: freechristimages.org.)

Five years after striking down a California law that allowed a Jewish art dealer’s heir to sue to recover artwork stolen by the Nazis, a federal appeals court has reinstated the case.

Marei Von Saher claimed the Nazis stole a diptych—“Adam” and “Eve” by Lucas Cranach the Elder—from her late husband’s family when Germany invaded the Netherlands in 1940. She sued the Norton Simon Museum in Pasadena, where the paintings now hang.

The U.S. Court of Appeals for the Ninth Circuit on June 6 found that Von Saher’s claims didn’t conflict with the federal government’s policies to defer looted artwork claims to the countries where those pieces originated before the Holocaust. The panel noted that Von Saher’s husband’s family declined to go through the administration process in the Netherlands to recover the painting immediately after World War II because they believed it was “unjust and unfair.”

“Though we recognize that the United States has a continuing interest in respecting the finality of ‘appropriate actions’ taken in a foreign nation to restitute Nazi-confiscated art, the Dutch government itself has acknowledged that ‘legalistic, bureaucratic, cold and often even callous’ nature of the initial postwar restitution system,” Circuit Judge Dorothy Nelson wrote.

The panel remanded the case, however, to decide whether the claims conflict with the “act of state” doctrine, which calls on sovereign countries to respect each other’s independent acts. The Netherlands handed the painting over to someone else before the Norton Simon Museum acquired it. The panel wrote it was unclear whether that transaction was a sale or part of the restitution process.

Von Saher’s attorney, Lawrence Kaye, said he was optimistic his client’s claims would survive on remand.

“In our case, they said this is the kind of case the policy of the United States favors having decided on the merits, and that’s hopefully what will happen here now,” said Kaye, co-chairman of the art law group at New York’s Herrick, Feinstein.

An attorney for the Norton Simon Museum, Fred Rowley, a partner at Los Angeles-based Munger Tolles & Olson, did not return a call for comment. Norton Simon spokeswoman Leslie Denk said in a statement: “The Norton Simon Art Foundation remains confident that it holds complete and proper title to Adam and Eve, and will continue to pursue, consistent with its fiduciary duties, all appropriate legal options.”

In 2009, the Ninth Circuit found the California law under which Von Saher originally had sued was unconstitutional because it infringed on the federal government’s exclusive power to conduct foreign affairs.

After the U.S. Supreme Court denied a petition to review the Ninth Circuit’s holding, Von Saher refiled her claims under a different California law. In 2012, U.S. District Judge John Walter of the Central District of California dismissed the refiled case, citing an amicus brief filed the previous year by then-acting U.S. Solicitor General Neal Katyal—and signed by Harold Koh, then legal adviser to the State Department—opposing Von Saher’s petition for certiorari before the U.S. Supreme Court.

In its 2-1 ruling, the panel split on the significance of that brief, which reaffirmed the federal government’s ongoing policies supporting restitution of artwork looted by the Nazis.

The Ninth Circuit’s majority opinion found little relevance of that brief, which misconstrued the facts in the case.

But Circuit Judge Kim McLane Wardlaw, in her dissent, agreed that the brief, which recognized the legitimacy of the restitution process in the Netherlands, supports a finding that Von Saher’s claims would conflict with federal policy.

“In my view, Von Saher’s attempt to recover the Cranachs in U.S. courts directly thwarts the central objective of U.S. foreign policy in this area: to avoid entanglement in ownership disputes over externally restituted property if the victim had an adequate opportunity to recover it in the country of origin,” she wrote.

On Dec. 9, the Ninth Circuit reinstated a similar suit filed against a museum in Spain over an allegedly stolen Camille Pissaro painting.

Circuit Judge Harry Pregerson, who wrote that decision, dissented in the Ninth Circuit’s first Von Saher opinion but joined with Nelson in the new ruling.

Contact Amanda Bronstad at abronstad@alm.com.

This article was updated at 11:01 p.m. with comment from Norton Simon.