(CN) – A woman who claims the painting Portrait of Youth by Austrian Expressionist Oskar Kokoschka was stolen from her late husband’s family by Nazis has lost her bid to take possession of the 100-year-old portrait.
The 5th Circuit rejected Claudia Seger-Thomschitz’s “novel” legal theory that Louisiana law in the case conflicts with U.S. foreign policy, and upheld a district court’s dismissal of her claims.
Seger-Thomschitz has tried for years to get the painting back, arguing that it was confiscated from the Reichel family through a forced sale in 1939 with the help of a Jewish art dealer and alleged Nazi collaborator known as “Kallir”.
The painting’s current owner, Sarah Blodgett Dunbar, inherited it in 1973 from her mother, who purchased it in 1946 from Kallir, according to the ruling.
Dunbar sued to quiet title to the 1910 portrait of Hans Reichel after she received a demand letter from Seger-Thomschitz. The district court ruled for Dunbar, finding that Seger-Thomschitz’s claims were barred by Louisiana’s prescriptive laws.
On appeal, Seger-Thomschitz argued for the first time that the court should use its “federal common law authority” in place of Louisiana law, which she said was “preempted by the foreign policy of the Executive Branch” because the United States became a party in 2009 to the “Terezin Declaration.” The declaration is a non-binding document that recommends “that participating countries implement national programs to address real property confiscated by Nazis.”
The federal appeals court in New Orleans was not convinced.
“Appellant has not met the burden of establishing extraordinary circumstances to justify consideration of a new legal theory for the first time,” Judge Edith Jones wrote. “Appellant offered no compelling reason why she failed to present this theory to the district court nor does it appear that a miscarriage of justice will result from our failure to address it. We are unpersuaded that this novel theory should be explored for the first time on appeal.”