Ninth Circuit Denies Rehearing En Banc in Cassirer

 

Camille Pissarro, Rue Saint-Honoré,

dans l’après-midi. Effet de pluie.

The legal saga surrounding the Cassirer family’s attempt to reclaim a Camille Pissarro painting seized by the Nazis has taken another step. Litigation in Cassirer v. Thyssen-Bornemisza Collection Foundation has bounced among the Central District of California, the Ninth Circuit, the California Supreme Court, and the Supreme Court of the United States. (For more coverage of the case on TLB, see here.)

Earlier this year, the Ninth Circuit held that under California’s approach to choice of law, the law of Spain applied to a question of property law. Under Spanish law, the Spanish museum held good title to the stolen painting. Cassirer, therefore, was not entitled to the return of the painting.

Plaintiffs filed a motion for rehearing and rehearing on en banc. Last week, the Ninth Circuit denied both requests. Judge Graber, joined by Judge Paez, wrote separately respecting the denial of rehearing en banc. Judge Graber marched through legal arguments about California choice of law—arguments that might have persuaded another panel to apply a recent California statute governing the recovery of stolen art.

Judge Graber not only wrote about doctrine, but she also argued for the legal and moral importance of this case:

Questions of state law ordinarily do not warrant rehearing en banc.  But this case is extraordinary.  It has generated many decisions by the district court; seven published opinions by this court, including one by an en banc panel; and one unanimous published opinion by the Supreme Court reversing our earlier ruling in favor of TBC.  In addition to generating significant judicial proceedings, the dispute has garnered intense media coverage and interest from all over the world.  This also is the rare case that has not only a legal component, but also a moral component:  Consistent with earlier statements by the district court and by the panel as a whole, Judge Callahan’s concurrence states that the opinion’s result is “at odds with [her] moral compass.”  Cassirer v. TBC, 89 F.4th 1226, 1246 (9th Cir. 2024) (Callahan, J., concurring).

The issue is critically important.  The world is watching.  We should reach the result that is both legally compelled and morally correct.  I am deeply disappointed by this court’s decision, which has the unnecessary effect of perpetuating the harms caused by Nazis during World War II.

What is next for Cassirer and the stolen Pissarro? As covered on this blog, there is pending legislation in California that might affect the litigation, provided it is enacted before the Supreme Court denies cert. And speaking of cert, plaintiffs in Cassirer have 90 days to file a cert petition (plus any extensions of time). In other words, the saga is not over, but at least the U.S. litigation appears to have taken another step towards its conclusion.