Von Saher v. Norton Simon Museum of Art, No. 12-55733, 2014 U.S. App. LEXIS 10552 (9th Cir. Cal. 2014) [click for opinion]

Plaintiff, Marei Von Saher, sued Pasadena's Norton Simon Museum of Art, in an attempt to recover "Adam" and "Eve," two life-sized panels painted by Lucas Cranach the Elder in the sixteenth century (collectively, "the Cranachs"). Von Saher asserts that that the Nazis forcibly purchased the panels from her deceased husband's family during World War II and, as the sole living heir, she has decided to pursue her claim to the Cranachs.

Von Saher sued the Museum relying on California Code of Civil Procedure Section 354.3, a statute which allows the rightful owners of confiscated, Holocaust-era artwork to recover their items from museums or galleries. However, the district court granted the museum's motion to dismiss, holding that the statute was unconstitutional on the basis of field preemption; that it infringed on the national government's exclusive foreign affairs powers. The Ninth Circuit affirmed the holding, finding Section 354.3 unconstitutional.

Nonetheless, the Ninth Circuit remanded the action in order to allow Von Saher to amend her complaint given that the California legislature had recently revised the California Code of Civil Procedure Section 338 in order to extend the statute of limitations for actions to recover stolen property and to apply it retroactively. Von Saher then filed her first amended complaint, which the Museum moved to dismiss on the basis of conflict preemption, contending that Von Saher's claims and the remedy she sought were in conflict with federal policy on the restitution of Nazi-stolen art. The district court agreed.

On appeal, the Ninth Circuit reversed, holding that Von Saher's claim did not conflict with any federal policy because the Cranachs were never subject to postwar, internal restitution proceedings in the Netherlands. The court further held that Von Saher's claims were in fact in concert with federal policy because allowing the lawsuit to proceed could provide Von Saher an opportunity to achieve a just and fair outcome to rectify the consequences of the forced transaction during the war.

The court remanded the case for further proceedings, however, given that litigation of this case could implicate the act of state doctrine. Specifically, the Ninth Circuit directed the district court to consider whether the Dutch government’s transfer of the Cranachs to George Stroganoff-Scherbatoff—who later sold them to the Norton Simon Art Foundation—was an official act of a sovereign giving effect to its political and public interests, and whether any exceptions to the act of state doctrine would apply.