The New HEAR Act: Just in Time for the Cases That Inspired It?

When President Trump signed the Holocaust Expropriated Art Recovery Act of 2025 on April 13, 2026, most commentary – including my own – generally discussed the Act as a forward-looking change that would help future claimants.  Although I mentioned that the Act would apply to “current” plaintiffs, I did not explain which cases that might include and why, nor did I consider how res judicata and claim preclusion would work. This post considers the effect of the litigation on the cases that prompted the Act, including De Csepel v. Republic of Hungary, which is ongoing, and Federal Republic of Germany v. Philipp (2021) which has reached a final judgment.

Ongoing Cases

On January 23, 2026, a D.C. Circuit panel affirmed dismissal of claims against Hungary and its museums in the De Csepel case. The litigation involves an alleged $100 million dollars’ worth of work by artists such as Monet and El Greco.  In the January opinion, the appellate court affirmed the district courts’ decisions holding that the Foreign Sovereign Immunities Act’s (FSIA) expropriation exception did not apply to the confiscations alleged in the case.  One might think that the case was over. But it appears that when the 2025 HEAR Act was passed, the panel decision had not led to a final judgment in the sprawling, long-running litigation. In July, the D.C. Circuit ordered that the January 23, 2026, opinion be vacated (as to 26 of the 28 claims) and “remanded to the district court for further proceedings in light of the Holocaust Expropriated Art Recovery Act of 2025.”

The new Act explicitly addresses such situations.  Section 2(b), titled “Applicability,” provides that it applies to any claim or cause of action “pending in any court on the date of enactment of this Act, including any civil claim or cause of action that is pending on appeal or for which the time to file an appeal has not expired.”  If the De Csepel case was not final because of the possibility of a cert petition or a petition for re-hearing en banc, the statute appears to apply because the claims were “pending on appeal.”

There may be other similarly situated cases. Bennigson v. Solomon R. Guggenheim Foundation, for example, is a New York state court case seeking the restitution of a 1904 Picasso painting titled Woman Ironing (La Repasseuse). The case was dismissed based on laches and eventually heard by the New York Court of Appeals in late 2025. If final judgment has not been entered, the case may still technically be pending, and the HEAR Act’s abrogation of the laches doctrine in such cases might allow for reversal. Cassirer v. Thyssen-Bornemisza Collection Foundation (2022) may fall into this category as well. The case turns on whether Spanish law (pursuant to which a possessor acquires good title through a period of uninterrupted possession) or California law (pursuant to which a thief cannot pass good title) governs the ownership of a stolen painting currently held by a Spanish museum. The case was remanded from the Ninth Circuit to the district court in March 2025, following an order by the Supreme Court, for reconsideration under a new California statute.  The plaintiff may now have an additional path forward under the HEAR Act’s foreclosure of acquisitive prescription.

Law of the Case

For a case still moving through the courts – however late in the process – the operative doctrine is the “law of the case,” which provides that a court’s ruling on an issue governs later stages of the same litigation, whether on remand or in a subsequent appeal.  If applicable, that doctrine would prevent the De Csepel courts from reconsidering issues that were already decided, including the applicability of the FSIA’s expropriation exception. But courts have long recognized exceptions to the general “law of the case” rule, including an exception for an intervening change in controlling law.  That exception would appear to allow the De Csepel plaintiffs to relitigate issues that the district court and court of appeals have already resolved – so long as the 2025 HEAR Act addresses them. And for De Csepel, the statute really delivers. It abrogates the “domestic takings” rule from Philipp, which held that the expropriation exception did not apply to a state’s taking of property from its own nationals.  The 2025 HEAR Act also deems claims within its scope to automatically involve a “violation of international law” as required by the FSIA’s expropriation exception. Both issues figured prominently in the decisions to dismiss in De Csepel.

Claim Preclusion

It is a different story for cases that were truly final before April 13, 2026.  For those, the operative doctrine is claim preclusion, not law of the case.  The federal common law of claim preclusion bars re-litigation of the same claim, even if the law has changed in the losing party’s favor.  Even if the law is changed by Congress itself – rather than a change in judicial precedent – claim preclusion still applies. In Plaut v. Spendthrift Farm, the Supreme Court struck down a statute that required federal courts to reinstate cases that had already been resolved through final judgments.  The Court held that Congress had improperly sought to exercise federal judicial power that is vested with courts in Article III of the Constitution. A final judgment is, the Court remarked, “the last word of the judicial department.”  Congress remains free to apply new law to cases that are not yet final, including cases still pending on direct appellate review, as in De Csepel.

The reasoning in Plaut would not necessarily apply if the doctrine of claim preclusion allows a second litigation. And some cases involving Holocaust era art been dismissed for lack of subject matter jurisdiction, to which claim preclusion generally does not apply. A dismissal under the FSIA is generally a dismissal for lack of subject matter jurisdiction, for example, so the resulting judgment might not have claim preclusive effect and thus would not bar a second case brought on the same claim. The Philipp case itself, which involved German medieval reliquaries and was one of the cases that motivated the 2025 HEAR Act, was dismissed for lack of subject matter jurisdiction.

But the language of the statute itself likely forecloses its application to cases that have been dismissed with a final judgment. The statute applies to cases “pending in any court on the date of enactment of this Act,” which presumably does not include cases in which a final judgment was entered before that date.  This language would not mean that a second case would be claim precluded, but instead that a second case would fail because the 2025 Act would not apply to it. Instead, the old law would apply – and that law led to a dismissal the first time around. Indeed, because subject matter jurisdiction was already decided based on the old law, the plaintiffs would be issue precluded from any effort to relitigate it.

Other cases that might be covered by the 2025 HEAR Act have been dismissed in judgments that would certainly have preclusive effect.  In Zuckerman v. Metropolitan Museum of Art, the Second Circuit affirmed dismissal of a claim to Picasso’s The Actor, holding that laches barred the suit.  Unlike Philipp, that dismissal came on a Rule 12(b)(6) motion for failure to state a claim, not a motion to dismiss for lack of jurisdiction.  Assuming that Zuckerman was truly final by April 13, 2026, the new Act’s elimination of laches as a defense would provide no assistance to the plaintiff. The claim was already finally adjudicated on the merits.

Conclusion

The 2025 HEAR Act was signed into law during what appeared to be the final stages of the De Csepel litigation. Just in time, in other words, for those plaintiffs. The plaintiffs in Philipp were not so fortunate.