United States v. 2007-05-17 | 05-55364 | ORKIN VTAYLOR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANDREW J. ORKIN; F. MARK ORKIN;
SARAH-ROSE JOSEPHA ADLER; A. No. 05-55364
HEINRICH ZILLE, D.C. No. Plaintiffs-Appellants,  CV-04-08472-RGK
v. OPINION
ELIZABETH TAYLOR,
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
February 12, 2007—Pasadena, California
Filed May 18, 2007
Before: William C. Canby, Jr. and Sidney R. Thomas,
Circuit Judges, and Suzanne B. Conlon,* District Judge.
Opinion by Judge Thomas
*The Honorable Suzanne B. Conlon, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
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COUNSEL
Thomas J. Hamilton, Byrne Goldberg & Hamilton, PLLC,
Washington, DC, for the appellants.
Steven Alan Reiss, Weil, Gotshal & Manges, LLP, New
York, New York, for the appellee.
OPINION
THOMAS, Circuit Judge:
Descendants of Jewish art collector Margarete Mauthner
(collectively, “the Orkins”) claim that their ancestor was
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wrongfully dispossessed of a painting during Hitler’s Nazi
regime, entitling them to ownership of the painting, which
was later purchased by actress Elizabeth Taylor. In this
appeal, we conclude that the Holocaust Victims Redress Act
does not create a private right of action and that the Orkins’
state law claims are barred by the statute of limitations. We
affirm the judgment of the district court, dismissing the com-
plaint.
I
Vincent van Gogh is said to have reflected that “paintings
have a life of their own that derives from the painter’s soul.”
The confused and perhaps turbulent history of his painting
Vue de l’Asile et de la Chapelle de Saint-Rémy may prove the
truth of his observation.
In 1889, a few months after cutting off the lower part of his
left ear following a dispute with Paul Gauguin, van Gogh
entered the Saint-Paul-de-Mausole asylum near the town of
Saint-Rémy-de-Provence. During this period of his life, he
produced over 150 paintings, including some of his most
famous works, such as The Starry Night. In the summer or fall
of 1889, he painted Vue de l’Asile et de la Chapelle de Saint-
Rémy, which may have been part of a series that he described
to his brother Theo as “Sketches of Autumn.” The painting
portrays either the Church of Labbeville near the town
Auvers, a few miles from the asylum, or a monastery which
was part of the asylum. Within a year of completing the paint-
ing, van Gogh died from a self-inflicted gunshot wound.
Van Gogh sold only one painting during his lifetime. Since
his death, however, his works have indeed had lives of their
own. After Vincent’s death in 1890, and his brother Theo’s
death six months later, ownership of Vue de l’Asile et de la
Chapelle de Saint-Rémy passed to Theo’s widow, Johanna.
The German art dealer Paul Cassirer, an early promoter of the
works of van Gogh and other post-impressionist artists, pur-
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chased the painting in 1906 or 1907. Shortly thereafter, Cas-
sirer sold the picture to Margarete Mauthner, an early
collector of van Gogh’s works. The parties vigorously dispute
the circumstances under which Mauthner parted with the
painting, and that dispute forms the basis of the current con-
troversy between the parties. We need not, and we do not,
resolve those factual disputes in this appeal because the issues
before us are purely legal in nature. However, a description of
the general factual background of the case — highlighting
where appropriate the factual disputes — is helpful to frame
the legal issues presented.
One of the tools used by art historians to trace ownership
is an artist’s catalogue raisonné. A catalogue raisonné is an
annotated, illustrated book of a particular artist’s works, usu-
ally prepared by art historians, scholars, and dealers, which
constitutes “a definitive listing and accounting of the works of
an artist.” DeWeerth v. Baldinger, 836 F.2d 103, 112 (2d. Cir.
1987). A catalogue raisonné published in 1928, L’oeuvre de
Vincent Van Gogh Catalogue Raisonné, shows Margarete
Mauthner as the owner of the painting. J.B. de la Faille’s
catalogue raisonné of van Gogh, published in 1939, also
identifies Mauthner as the owner.
From the time of Adolf Hitler’s election as Chancellor of
Germany in 1933 until the end of World Ward II, Hitler’s
Nazi regime engaged in a systematic effort to confiscate thou-
sands of works of art throughout Europe. Hector Feliciano,
The Lost Museum: The Nazi Conspiracy to Steal the World’s
Greatest Works of Art 3 (Basic Books 1997). Within Ger-
many, the enactment of the Ordinance for the Attachment of
the Property of the People’s and State’s Enemies and the
Ordinance for the Employment of Jewish Property gave Nazi
officials the authority to seize artwork from Jewish owners
under color of law. Jonathan Petropoulos, Art as Politics in
the Third Reich, 190 (University of North Carolina Press
1996).
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As the Nazis’ persecution accelerated, Mauthner fled Ger-
many to South Africa in 1939, leaving her possessions
behind. She remained there until her death in 1947, at the age
of 84. What happened to Vue de l’Asile et de la Chapelle de
Saint-Rémy during that time is not clear from the record. A
1970 catalogue raisonné prepared by a committee of scholars
in the Netherlands lists the next owner as Alfred Wolf, a Jew-
ish businessman who left Germany for Switzerland in 1934
and ultimately relocated to South America. The auction
catalogue prepared by Sotheby & Co. in 1963 lists the prove-
nance, or chain of title, as including three owners prior to
Wolf. The Sotheby’s catalogue traces the ownership of the
painting from Mauthner to Paul Cassirer, to Marcel Gold-
schmidt, and then to Alfred Wolf. The Orkins contend that
this chain of ownership cannot be correct because Paul Cas-
sirer had committed suicide in 1926, two years before the
1928 catalogue raisonné was published, listing Mauthner as
the owner.
Notably, the Orkins do not contend that the painting was
confiscated by the Nazis. Rather, they allege economic coer-
cion, contending that Mauthner sold the painting “under
duress.” They note that laws promulgated by the Allied
Forces after the conclusion of World War II established a pre-
sumption that any transfer or relinquishment of property by a
persecuted person within the period January 30, 1933 to May
8, 1945 was an act of confiscation. Military Government Law
No. 59 § 375(b).
Taylor contends that, at best, the record shows that the
painting was sold through two Jewish art dealers to a Jewish
art collector, with no evidence of any Nazi coercion or partici-
pation in the transactions.
In short, the parties agree that Mauthner once owned the
painting, and it was later possessed by Alfred Wolf. At this
point in the development of the case, the rest of what tran-
spired with the painting during the 1930’s in Berlin is clouded
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in uncertainty. Sometime in the early 1960s, the Estate of
Alfred Wolf commissioned Sotheby’s to sell by auction a
number of Impressionist and Post-Impressionist paintings,
including Vue de l’Asile et de la Chapelle de Saint-Rémy.
With the help of her father, who was an art dealer, Eliza-
beth Taylor began collecting art in the 1950s, acquiring works
of Degas, Renoir, Pissarro, Monet, Cassatt and other promi-
nent artists. She had long wanted to acquire a van Gogh.
While living in London with her husband, Richard Burton,
Taylor learned that Vue de l’Asile et de la Chapelle de Saint-
Rémy would be offered at a Sotheby’s auction in April 1963.
She authorized her father to bid for her at the auction, and he
was successful in purchasing the painting on her behalf for £
92,000.
Taylor’s acquisition was publicized at the time. Subse-
quently, the 1970 catalogue raisonné referenced Taylor’s
ownership. From November 1986 until March 1987, the
painting was exhibited publicly at the Metropolitan Museum
of Art in New York, in an exhibition entitled Van Gogh in
Saint Rémy and Auvers.
In 1990, Taylor offered the painting for sale through Chris-
tie’s auction house in London. The provenance for the sale
lists Taylor as the current owner, with the prior owners being
Alfred Wolf (of Stuttgart and Buenos Aires), Marcel Gold-
schmit & Co. (of Frankfurt), Margarete Mauthner (of Berlin),
Paul Cassirer (of Berlin), and Johanna van Gogh-Bonger (of
Amsterdam). The work did not sell at the auction.
In 1998, Congress enacted three statutes pertaining to vic-
tims of Nazi persecution: the Holocaust Victims Redress Act
(“Act”), Pub. L. No. 105-158, 112 Stat. 15 (1998), the Nazi
War Crimes Disclosure Act of 1998, Pub. L. No. 105-167,
114 Stat. 2865 (1998), and the United States Holocaust Assets
Commission Act of 1998, Pub. L. No. 105-186, 112 Stat. 611
(1998). The Orkins allege that their inquiry into whether their
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ancestor, Mauthner, may have lost her art collection due to
Nazi persecution began upon the passage of these acts. They
retained a law firm in 2001 and claim that, until their attor-
neys completed their investigation, they did not discover the
basis of their current claim. The Orkins allege that, before
they began that investigation, they did not know that Mauth-
ner had owned Vue de l’Asile et de la Chapelle de Saint-
Rémy, that she had lost the painting as a result of Nazi perse-
cution, that Taylor had bought the painting, or that there was
a legal basis for recovering the painting. They also claim that
they first learned of Taylor’s ownership in 2002, through a
rumor on the internet that Taylor was interested in selling the
painting.
In December 2003, the Orkins wrote a letter to Taylor,
demanding that she return the painting to them. After some
discussion of settlement, Taylor wrote a response letter
declining settlement and asserting that the Orkins’ claim to
the painting was untimely. Taylor then filed a complaint for
declaratory relief to establish her title.
In 2005, the Orkins filed their First Amended Complaint
for recovery of the painting under theories of specific recov-
ery, replevin, constructive trust, restitution, and conversion.
The district court dismissed the complaint, concluding that the
state-law actions were time-barred and that the federal statute
did not create a private right of action. Because there is com-
plete diversity between the parties and because the painting is
worth more than $75,000, the district court had jurisdiction
under 28 U.S.C. § 1332. We have jurisdiction under 28
U.S.C. § 1291, and we review de novo the district court’s dis-
missal of the complaint pursuant to Rule 12(b)(6). Cervantes
v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).
Because the district court dismissed this case on a Rule
12(b)(6) motion, we must assume that all facts stated in the
complaint are true and that they are provable by admissible
evidence. Although the parties vigorously dispute whether the
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painting was effectively confiscated by the Nazis through
forced sale or was legitimately sold through Jewish art deal-
ers, we need not resolve that issue. We assume, for the pur-
poses of our discussion, that the allegations of the complaint
are true, and that Mauthner was coerced into giving up the
painting before she left Germany.
II
[1] The district court properly dismissed the Orkins’ federal
claims on the ground that the Holocaust Victims Redress Act
did not create a private right of action against private art own-
ers. In determining whether a federal statute creates a private
right of action, congressional intent is the cornerstone of the
analysis. The Supreme Court has established a four-factor test
for discerning whether a statute creates a private right of
action. Cort v. Ash, 422 U.S. 66 (1975). Under that test, we
must ask: (1) whether the plaintiff is a member of a class that
the statute especially intended to benefit, (2) whether the leg-
islature explicitly or implicitly intended to create a private
cause of action, (3) whether the general purpose of the statu-
tory scheme would be served by creation of a private right of
action, and (4) whether the cause of action is traditionally rel-
egated to state law such that implication of a federal remedy
would be inappropriate. 422 U.S. at 78.
[2] The most important inquiry under Cort is the second
factor: whether there is “any indication of legislative intent,
explicit or implicit, either to create such a remedy or to deny
one.” Opera Plaza Residential Parcel Homeowners Assn. v.
Hoang, 376 F.3d 831, 834-35 (9th Cir. 2004) (quoting Cort,
422 U.S. at 78); First Pacific Bancorp, Inc. v. Helfer, 224
F.3d 1117, 1121-22 (9th Cir. 2000) (same). Indeed, the three
Cort questions that are not explicitly focused on legislative
intent are actually indicia of legislative intent, such that the
Cort test itself is focused entirely on intent. Touche Ross &
Co. v. Redington, 442 U.S. 560, 575-76 (1979). The four Cort
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factors, thus, are merely targeted inquiries to guide our central
project of discerning Congress’s intent. Id.
[3] The plain text of the Holocaust Victims Redress Act
leaves little doubt that Congress did not intend to create a pri-
vate right of action. The Orkins rely on § 202 of the Act, enti-
tled “Sense of the Congress Regarding Restitution of Private
Property, Such as Works of Art.” That section reads in its
entirety as follows:
It is the sense of the Congress that consistent with
the 1907 Hague Convention, all governments should
undertake good faith efforts to facilitate the return of
private and public property, such as works of art, to
the rightful owners in cases where assets were con-
fiscated from the claimant during the period of Nazi
rule and there is reasonable proof that the claimant
is the rightful owner.
Act § 202, 112 Stat. at 17-18.
[4] “Sense of the Congress” provisions are precatory provi-
sions, which do not in themselves create individual rights or,
for that matter, any enforceable law. Yang v. Cal. Dept. of
Soc. Servs., 183 F.3d 953, 958-59 (9th Cir. 1999). Although
“sense of the Congress” provisions are sometimes relevant to
our determination of whether other mandatory provisions
create private rights of action, id. at 959 & n.4, the Orkins can
point to no provision of the Act or of any of its companion
legislation that can fairly be characterized as mandatory.
There is simply no “right- or duty-creating language” any-
where in the statutory scheme, Cannon v. Univ. of Chicago,
441 U.S. 677, 690 n.13 (1979), and § 202’s announcement of
a “sense of the Congress” cannot, of its own force, imply a
private right of action, Yang, 183 F.3d at 958-59.
[5] Additionally, the Act’s legislative history indicates that
even its most ardent supporter did not intend for the bill to
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create a private right of action. Rather, the legislative intent
was to encourage state and foreign governments to enforce
existing rights for the protection of Holocaust victims. The
sponsor and primary champion of the legislation, Representa-
tive Jim Leach (R-IA), believed that existing law would suf-
fice to restitute Nazi-stolen artworks to their Nazi-era owners.
At a hearing that occurred after passage of the Act, Represen-
tative Leach noted the possibility that new “domestic legisla-
tion” might assist in restitution of stolen art, but he went on
to conclude that “Congress may have gone as far as it appro-
priately should on this subject in the Holocaust Victims
Redress Act.” Holocaust Victims’ Claims, Hearing before the
House Committee on Banking and Financial Services, 105th
Cong., 2d Sess. (1998). That statement strongly implies, con-
sistently with the precatory language of the legislation itself,
that the Act was a limited bill, passed with an understanding
of constitutional limitations on congressional power. The sec-
ond Cort factor, thus, does not support the Orkins’ claim; the
bill simply did not intend to create a private right of action.
[6] Examination of the remaining Cort factors buttresses
this conclusion. With respect to the first Cort factor, although
there is no doubt that the Act was focused on Holocaust vic-
tims and (in a colloquial sense) intended to benefit them,
Holocaust victims do not constitute a “beneficiary class”
within the meaning of the Cort test. The provision’s focus is
on “governments” rather than individuals, urging those gov-
ernments “to facilitate” enforcement of preexisting property
rights. Act § 202, 112 Stat. at 17-18. The statute, thus, does
not “explicitly confer[ ] a benefit on” Holocaust victims; it
merely expresses Congress’s sense that Holocaust survivors
and heirs should benefit fully from preexisting protections. Cf.
Cannon, 441 U.S. at 693-94 (concluding that the first Cort
factor was met because the statute at issue “explicitly confers
a benefit on” an identifiable class and because the plaintiff
was a member of that class). The Orkins, thus, are not mem-
bers of a class that Congress “intended to benefit,” as that
phrase is used in Cort.
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[7] With respect to the third Cort factor, the text and history
of the legislation reveal that its overarching purpose was not
to provide for private litigation. Rather, the general purpose
of the statutory scheme was to fund research efforts and to
declassify records, while simultaneously encouraging foreign
governments, as well as public and private institutions, to do
likewise. In other words, the motivating concern was not
access to courts; it was access to information. In fact, through-
out the committee hearings, witnesses testified that courts
would likely do a poor job of resolving Holocaust victims’
claims. Specifically, the committee heard testimony that the
difficulties of tracing information would likely preclude effec-
tive judicial resolution of discrete claims, and several museum
directors testified that alternative fora such as mediation and
arbitration were preferable to litigation. Holocaust Victims’
Claims, Hearing before the House Committee on Banking and
Financial Services, 105th Cong., 2d Sess. (1998) (testimony
of Philippe de Montebello, director of the Metropolitan
Museum of Art). The general purposes of the statute, there-
fore, do not support the conclusion that Congress intended to
provide a private right of action in this case.
[8] Finally, with respect to the fourth Cort factor, there can
be no doubt — as this case amply demonstrates — that state
law provides causes of action for restitution of stolen art-
works. Furthermore, the torts asserted here are undoubtedly
causes of action that are traditionally relegated to state law.
Implication of a federal remedy in this case, therefore, would
be inappropriate under the fourth Cort factor. Representative
Leach’s statement that “Congress may have gone as far as it
appropriately should” when it passed the Act strongly sup-
ports the conclusion that Congress did not intend to supersede
traditional state-law remedies when it passed the Act. Holo-
caust Victims’ Claims, Hearing before the House Committee
on Banking and Financial Services, 105th Cong., 2d Sess.
(1998).
[9] In short, the Act does not satisfy any of the Cort factors;
none of the relevant indicia of intent supports the conclusion
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that Congress intended to create an implied private right of
action in this case. The Act is a precatory announcement of
the “sense of the Congress,” which neither confers rights nor
creates duties. Given the absence of congressional intent to
create a private right of action, the Orkins’ assertion of a fed-
eral right of action must fail.
III
[10] The district court also properly concluded that the
Orkins’ state-law claims were time-barred. California pro-
vides a three-year statute of limitations for any action arising
from the “taking, detaining, or injuring” of any “goods or
chattels.” Cal. Civ. Proc. Code § 338(c). In 1983, the statute
of limitations was amended to specify that a “discovery rule”
governs accrual of causes of action for recovery of “any arti-
cle of historical, interpretive, scientific, or artistic signifi-
cance.” Id. In other words, under the new law, an action for
recovery of artwork accrues when the rightful owner discov-
ers the whereabouts of the artwork. Before 1983, the statute
did not specify when a cause of action for theft would accrue.
The Orkins do not argue that the 1983 amendment applies
retroactively to their allegations of a 1939 theft and a 1963
conversion. Rather, they contend that the discovery rule
applies even under pre-1983 law, citing an intermediate
appeals court decision that so held. Naftzger v. Am. Numis-
matic Soc’y, 42 Cal. App. 4th 421 (1996).
“The task of a federal court in a diversity action is to
approximate state law as closely as possible in order to make
sure that the vindication of the state right is without discrimi-
nation because of the federal forum.” Ticknor v. Choice
Hotels Intern., Inc., 265 F.3d 931, 939 (9th Cir. 2001) (quot-
ing Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980)).
If the state’s highest appellate court has not decided the ques-
tion presented, then we must predict how the state’s highest
court would decide the question. Id. In doing so, we take state
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law as it exists without speculating as to future changes in the
law. Id.
[11] The California Supreme Court has never confronted
the question of what rule governs accrual of pre-1983 causes
of action for theft and conversion. The California Supreme
Court has, however, specifically held that the discovery rule,
whenever it applies, incorporates the principle of constructive
notice. In Jolly v. Eli Lilly & Co., the California Supreme
Court held that, under California’s discovery rule, “[a] plain-
tiff is held to her actual knowledge as well as knowledge that
could reasonably be discovered through investigation of
sources open to her.” 44 Cal.3d 1103, 1109 (1988). In other
words, under the discovery rule, a cause of action accrues
when the plaintiff discovered or reasonably could have dis-
covered her claim to and the whereabouts of her property. In
assessing California law, we conclude that it is highly
unlikely that the California Supreme Court would abandon the
Jolly rule, much less adopt a new rule that eschewed the con-
cept of constructive notice.
[12] Under Jolly, the latest possible accrual date of the
Orkins’ cause of action was the date on which they first rea-
sonably could have discovered, through investigation of
sources open to them, their claim to and the whereabouts of
the van Gogh painting. From the face of the Orkins’ com-
plaint, it is apparent that Taylor’s acquisition of the painting
was certainly discoverable at least by 1990, when she held it
out for sale in an international auction, and most probably as
early as 1963, when she acquired the painting in a highly pub-
licized international auction. In fact, the complaint alleges —
and demonstrates by attachment — that Taylor bought the
painting at a publicized auction in 1963, that Taylor was listed
as the owner of the painting in a publicly available 1970
catalogue raisonné, and that Taylor publicly offered the
painting for sale in 1990. Had the Orkins investigated any of
those publicly-available sources, they could have discovered
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both their claim to the painting and the painting’s where-
abouts long before the 2002 internet rumor was posted.
[13] We therefore affirm the district court’s conclusion that
the Orkins’ state-law claims are time-barred. Even under the
most generous possible rule for accrual of the causes of
action, the claims expired in or before 1993 — three years
after the last public announcement of Taylor’s ownership. The
district court correctly held that the Orkins’ state law claims
were untimely filed.
IV
Congress did not create a private right of action in passing
the Holocaust Victims Redress Act, which merely reflected
the sense of Congress. The Orkins’ state law claims are time-
barred. The district court was entirely correct in dismissing
the complaint. We need not, and do not, reach any of the other
issues urged by the parties.
AFFIRMED.
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