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California man can sue Spain, cultural group over painting

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LOS ANGELES — An 89-year-old La Mesa man seeking to recover an Impressionist masterpiece seized from his Jewish family by the Nazis has the right to sue Spain and the cultural foundation that has the painting on display at a Madrid museum, a federal appeals court ruled Thursday.

Claude Cassirer, who fled Nazi Germany as a youth, said he was delighted by the 9-2 decision of the 9th U.S. Circuit Court of Appeals clearing the ownership dispute for trial. But he expressed concern about the long legal road still ahead.

"I'm getting older every day, and I really hope that for justice and other reasons that my wife Beverly and I would survive and once again see this beautiful painting," Cassirer said from his home near San Diego.

The Kingdom of Spain and the Thyssen-Bornemisza Collection Foundation displaying Camille Pissarro's "Rue Saint-Honoré, Apr? Midi, Effet de Pluie" had been fighting Cassirer's lawsuit on jurisdictional grounds. Spain signed accords promising restitution to victims of Nazi expropriations but contends that the Foreign Sovereign Immunities Act protects the country from U.S. court proceedings.

Among exceptions to the 1976 law, though, is "unlawful expropriation," and that applies in Cassirer's case even though it was Germany, not Spain, that forced his grandmother to surrender the painting in 1939, the appeals panel ruled.

The painting, which changed hands repeatedly in the postwar years, eventually was acquired in the late 1970s by Baron Hans-Heinrich Thyssen-Bornemisza, a Swiss art collector and scion of Germany's Thyssen steelmaking empire. The baron, who died in 2002, sold his collection to the foundation in 1993 at a fraction of its $2 billion value. The disputed Pissarro is valued at $20 million.

An attorney for the foundation, Thaddeus Stauber, said the appeals court decision didn't address the merits of the case and "does not ... lessen the Foundation's expectation that once the complete historical record is presented that the claim will be dismissed."

Two of the 11 judges sitting on the "en banc" panel dissented, including Chief Judge Alex Kozinski. They expressed misgivings about dissenting because of the genocidal crimes of the Nazis and their view that Cassirer was "a most sympathetic claimant."

"But two wrongs do not make a right," the dissenters concluded, saying the painting was illegally seized by the Nazis and that to hold Spain responsible would create another injustice.