CALIFORNIA WOMAN CAN SUE TO RECOVER PAINTINGS NAZIS SEIZED.

A California woman can sue Austria and the Austrian Gallery under the Foreign Sovereign Immunities Act for return of valuable paintings seized by Nazis and sold to the art gallery in 1943, the Ninth U.S. Circuit Court of Appeals ruled Dec. 12.

Enacted in 1976 and amended 20 years later, the FSIA provides a limited means for U.S. courts to obtain jurisdiction over foreign nations and specifies exceptions to their immunity, including cases involving property taken in violation of international law.

Among other things, the Austrian government and gallery argued the law couldn't reply retroactively to acts of the Austrian government during the Nazi era, when Germany took over the country and seized property of Jews - including six paintings by the Austrian artist Franz Klimt owned by Maria V. Altmann's uncle.

A federal judge rejected the Austrians' argument, and a three-judge Ninth Circuit panel affirmed the decision.

"A statute does not operate 'retrospectively,' and thus impermissibly, simply because it applies to conduct antedating the statute's enactment," Judge Kim McLane Wardlaw wrote for the three-judge panel in Altmann v. Republic of Austria et al. (01-56003).

If a law takes away rights or adds new obligations, it cannot be applied to past transactions, she noted, citing Supreme Court precedents. But the FSIA didn't change substantive law existing at the time the paintings were seized.

"Determining whether the FSAI may properly be applied thus turns on the question whether Austria could legitimately expect to receive immunity from the executive branch of the United States for its complicity in and perpetuation of the discriminatory expropriation of the Klimt paintings," Wardlaw wrote.

"Mindful that such seizures explicitly violated both Austria's and Germany's obligations under the Hague Convention . . . and that Austria's Second Republic officially repudiated all Nazi transactions in 1946, we hold that Austria could not expect such immunity."