Bundesarchiv, Bild 101I-729-0001-23 / Meister / CC-BY-SA 3.0
Congress has passed legislation making it easier for plaintiffs to recover Nazi-looted art and other expropriated property. If the president signs the Holocaust Expropriated Art Recovery (“Hear”) Act of 2025 into law, defendants will have fewer procedural protections from such claims, including more a more limited immunity defense for foreign sovereigns. The legislation illustrates how Congress fine tunes immunity law, undermining arguments that immunity statutes should be read narrowly when courts are confronted with sympathetic plaintiffs.
The 2016 and 2025 Hear Acts
Congress passed the first Hear Act in 2016. It extended otherwise applicable statutes of limitations to a generous six years after the actual discovery of key aspects of the claim. The 2016 Act sunsets at the end of 2026 unless renewed.
The 2025 Act renews the earlier legislation, but it also goes much further. It purports to preclude all “non-merits discretionary bases for dismissal” including “the act of state doctrine, international comity, forum non conveniens, or prudential exhaustion.” It also bars several defenses that, like statutes of limitations, are related the passage of time including but not limited to “laches, adverse possession, acquisitive prescription and usucapion.” These defenses, according to the findings section of the Act “must be precluded” “in order to “effectuate the purpose of the Act to permit claims to recover Nazi-looted art to be resolved on the merits.” The bill’s cosponsors from both political parties similarly emphasized that they sought to eliminate technicalities and “legal loopholes” that have stymied Nazi-era art recovery claims.
Foreign Sovereign Immunity
The 2025 Act, unlike its predecessor, also limits the immunity to which foreign sovereigns are entitled. Foreign sovereigns (including their agencies and instrumentalities) are often named as defendants either because the art is now owned by state-run museums or because the government played a role in its initial expropriation. However, suits against foreign states cannot go forward – whether in state or federal court – unless there is an applicable exception to the immunity conferred by the Foreign Sovereign Immunities Act (“FSIA”).
The FSIA has an expropriation exception, 28 U.S.C. § 1605(a)(3), that has been invoked by plaintiffs in Nazi art recovery cases, but courts have interpreted it narrowly. The exception requires that the expropriation involve “rights in property taken in violation of international law” and that there is a nexus between the property and the United States. In Republic of Hungary v. Simon (2025), the Supreme Court held that if the proceeds of expropriated property are comingled with other government funds in the United States, the nexus requirement is not satisfied. As Bill Dodge, has explained, Simon “makes it nearly impossible to bring expropriation claims involving fungible property in U.S. courts.”
The 2025 Hear Act does not purport to change the holding of Simon, but it does take aim at another Supreme Court case that limited the expropriation exception: Federal Republic of Germany v. Philipp (2021). In Philipp, the Court held that the “international law” requirement of the exception is not satisfied if a government expropriates property from one of its own nationals because doing so does not violate international law under what is called the “domestic takings rule.” Even a domestic taking that violates international human right law such as genocide does not satisfy the statute, because the “international law” to which the statute refers is the law of expropriation, not the law of human rights.
Lower courts have made it even more difficult for plaintiffs by reading the holding of Philipp broadly to prevent expropriation claims by stateless people because such takings, too, purportedly do not violate international law. Even claims of expropriation in violation of the laws of war have been rejected as not sufficiently connected to property law, a conclusion that I have questioned. Philipp and its progeny have been bad news for those victimized by the Nazis because the property of Jewish people was often expropriated by their own governments, and because courts have rejected various efforts to avoid the domestic takings rule.
The 2025 Hear Act specifically abrogates Philipp. In a section entitled “Relation to Foreign State Immunities” it provides that a claim covered by the Act “shall be deemed to be an action in which rights in violation of international law are at issue for purposes [of the expropriation exception].” The Act sweeps broadly and applies generally to suits to recover art or any property lost due to Nazi persecution in the years between 1933 and 1945. The findings section of the Act removes any possible doubt about the fate of the domestic takings rule by singling out the domestic takings rule under Philipp as one of the obstacles that the Act is designed to remove.
Effect of the 2025 Act
The legislation is a real boon to current and future plaintiffs. Those suing foreign sovereigns will no longer need to prove anything about international law in order to satisfy the expropriation exception to the FSIA. They will only need to show that their claim comes within the Act, which (as noted above) applies to claims to recover property lost through Nazi persecution in the years between 1933 and 1945, not only by the German government but also by its allies and agents. Even plaintiffs who sue private art dealers and museums rather than foreign sovereigns will no longer face a range of defenses that have resulted in dismissals, including defenses based on foreign property law and those designed to avoid foreign policy conflict, such as the act of state doctrine.
We can also expect renewed and reinvigorated efforts to trace the ownership of valuable works of art, now that the path for litigation is clearer. But for the plaintiffs in the cases named in the 2026 Act – such as the heirs to the owners of the art at issue in Philipp – the legislation probably comes too late. The doctrine of res judicata prevents them for suing again, even if the law has changed in the favor, and even if their plight is what caused Congress to act.
Conclusion
Congress amends the FSIA with surprising frequency. It has done so multiple times to make it easier for victims of state-sponsored terrorism to sue and to execute resulting judgments, it has legislated to protect art that is on loan from foreign art museums, and it has now acted twice to make it easier for victims of the Nazis to sue.
Plaintiffs suing Cuban owned oil companies for trafficking in expropriated property (in case called Exxon v. Cimex) have argued to the Supreme Court this term that the Helms Burton Act abrogates the defendants’ immunity, although the Act says nothing about immunity nor about the FSIA. The 2026 Hear Act illustrates one of the reasons that the plaintiffs’ argument is unconvincing. When Congress wants to limit immunity, it does explicitly and with precise language, as it has now done in favor of plaintiffs who suffered from Nazi persecution. There is no need for courts to imply or infer that immunity has been abrogated by statutes that do not explicitly do so.
