Monday, September 13, 2004
Austria’s Motion to Dismiss Suit Over Looted Art Denied
By KENNETH OFGANG, Staff Writer
U.S. District Judge Florence-Marie Cooper of the Central District of California Friday denied a motion by the Austrian government to dismiss a lawsuit charging it with wrongful possession of valuable artwork looted by the Nazis.
Cooper ruled for the second time that the claims by Maria V. Altmann, 88, of Cheviot Hills fall under the “expropriation” exception to the protections granted foreign governments from U.S. civil process by the Foreign Sovereign Immunities Act.
Friday’s ruling, which obviated the need for a hearing that was scheduled for today, follows a U.S. Supreme Court ruling earlier this year that allowed the suit to proceed. The 6-3 decision held that the FSIA, rather than the law in effect in the 1940s when the paintings came into Austria’s possession, determines the scope of any immunity in the case.
Altmann seeks to recover—or be compensated for—six Gustav Klimt paintings owned by her uncle, Czech banker and sugar magnate Ferdinand Bloch. The paintings, with an estimated value of $150 million, are now part of the collection of the Austrian Gallery in Vienna.
The high court granted review after a Ninth U.S. Circuit Court of Appeals panel ruled that Austria could not possibly have expected sovereign immunity to apply to artworks that were stolen by Nazis and were allegedly retained illegally by the government after the war.
In her original order, Cooper held that Altmann had pled the three elements of the expropriation exception—that the property was taken in violation of international law, that it is “owned or operated” by an agency or instrumentality of a foreign government, and that the agency or instrumentality is engaged in commercial activity in the United States.
Cooper noted that the paintings have been reproduced and sold numerous times in the United States in the form of posters and catalogs.
In fact, some of the Klimt works apparently have become part of American commercial and popular culture. It is possible to purchase reproductions of the most famous of the paintings—the golden, Byzantine-influenced “Adele Bloch-Bauer I,” a portrait of Altmann’s aunt—on wristwatches, calendars, and other goods.
There are Klimt computer games, playing cards and stationery.
In its latest motion, Austria again raised an issue that the Supreme Court declined to consider—whether Altmann’s failure to exhaust her legal remedies in Austria precluded her from claiming that the republic’s retention of the paintings violated international law.
Altmann’s attorney, E. Randol Schoenberg of Los Angeles, argued that the $135,000 filing fee and the burden of potentially lengthy proceedings on his octogenarian client rendered the Austrian remedy inadequate.
Cooper’s previous ruling in favor of the plaintiff on that issue was upheld by the Ninth Circuit and is now the law of the case, the district judge said Friday. Nor did Austria cite any new law or facts that would support reconsideration, Cooper said.
She rejected Austria’s urging that she revisit the issue on the basis of a comment in Justice Stephen Breyer’s concurring opinion in the high court case, joined by Justice David Souter, that exhaustion might be required.
“Justice Breyer’s concurring opinion is mere dictum,” Cooper wrote, since the issue was not before the court. “...Even if the opinion were not dictum on an issue the court refused to consider, it is not the opinion of the Court, and it is therefore not binding.”
Copyright 2004, Metropolitan News Company