We usually don't post trial court decisions, preferring instead to wait until the issue works its way up the food chain. But we make exceptions to that general rule when a case catches our eye and is either unusual or otherwise interesting. The U.S. District Court's opinion in Williams v. The National Gallery of Art, London, No. 16-CV-6978 (Sep. 21, 2017) is one of those cases.
It's the facts of the case which compel us to post it, since it involves a somewhat famous painting (Portrait of Greta Moll, above), by the famous painter Henri Matisse. Commissioned and purchased by two of Matisse's art students, the painting was privately owned until just after World War II, when Greta entrusted it to another former student to take the painting to Switzerland to protect it from looting. Well the former student didn't take it to Switzerland, but sold it and kept the proceeds. The painting eventually showed up in the United States, and after a series of ownership transfers, in 1979 ended up in the National Gallery of Art, London.
Greta's heirs informed the NGAL that hey, that painting was stolen, and you should have known if was stolen because it was pretty famous. When the NGAL refused to give it back, they sued. The complaint reads like a Property I exam: conversion, replevin, constructive trust, restitution/unjust enrichment, and declaratory judgment. The NGAL responded by asserting sovereign immunity under FSIA, the Foreign Sovereign Immunities Act (the NGAL is an instrumentality of Great Britain and thus a foreign sovereign under the Act), asserting that there was not a "taking" of the painting as that term is defined in the Act, and thus the NGAL could not be sued in a U.S. court.
FSIA contains an "expropriation" exception, which subjects a foreign sovereign to claims in a U.S. court if there was a "taking" in violation of international law, and the property is present in the U.S. or is owned by an instrumentality of a foreign state that is engaged in commercial activity in the U.S. The District Court concluded it had no jurisdiction because the painting had not been "taken" -- which requires an expropriation by a sovereign, not by a private party. Slip op. at 7 ("The Second Circuit has held that the legislative history makes clear that the term 'taken' 'refers to acts of a sovereign, not a private enterprise, that deprive a plaintiff of property without adequate compensation."). The painting had been ripped off by the former art student, and not a sovereign entity.
Stymied by this line of argument, the plaintiffs also alleged there was a separate taking by a sovereign entity when the NGAL refused to return the painting. Sorry, no dice, held the court: that isn't a "taking" either. The dictionary definition of the word "take," and the legislative history of FSIA make it clear that to "take" something means "to seize or capture physically," or "to acquire by eminent domain." The NGAL didn't "take" the painting, "[w]hat the National Gallery has done is to refuse to return property." Slip op. at 7-8. And "[t]o refuse to return property is not to get property into one's possession or control but, rather, having previously acquired control, to retain the property despite the request that it be transferred to another." Id. at 8. The court concluded that the NGAL was immune.
This latter reasoning doesn't quite sit 100% right with us, at least until the gut check of this being a statutory interpretation case. From the owner's perspective, it doesn't matter that much whether the "taking" was an affirmative grab, or an affirmative refusal to return. Indeed, the court's reasoning here, applied to other areas, would seem to wipe out the entire theory of regulatory takings (we didn't grab anything, so there's no taking). But as we noted above, this is, after all, a statutory interpretation case, so we suppose we're not all that worried about the reasoning being expanded into other non-FSIA matters. The court concluded that if Congress wanted to limit FSIA to include refusal to return situations, it could do so:
To adopt Plaintiffs’ argument and to hold that a foreign sovereign’s refusal to return property stolen by a private individual is a taking pursuant to FSIA would drastically broaden Congress’s carefully crafted expropriation exception. Adopting Plaintiffs’ interpretation of the expropriation exception would not only defy Congress’s intent to limit and specifically define the expropriation exception but it would also deviate from the exceptions to sovereign immunity generally recognized by international law that Congress sought to codify in FSIA.
Slip op. at 9. The remainder of the opinion deals with other, non-takings issues, but ends up with the same conclusion: NGAL is immune, case over.
Memorandum Opinion and Order, Williams v. The National Gallery of Art, London, No. 16-CV-6978 (S.D.N.Y. Sep. 21, 20...
