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Article United States: Appeals Court Holds Act of State Doctrine Bars Recovery of Painting Sold During World War II

On May 31, 2024, the United States Court of Appeals for the Fifth Circuit held that the descendants of a European Jew forced by the Nazis to sell paintings could not recover a painting now held by a Houston museum because their claim was barred by the act of state doctrine, which precludes court review of the domestic acts of foreign governments. (Emden v. Museum of Fine Arts, No. 23-20224 (5th Cir. 2024).)

Background to the Case

Before World War II, Max Emden, a European Jew, was forced to sell three Bernardo Bellotto paintings, one of which was a replica of Belloto’s The Marketplace at Pirna painted by Belloto himself. The paintings were recovered by the Monuments Men after the war and, in 1945, the replica Pirna by Belloto was shipped to the Dutch Art Property Foundation (the SNK) to fulfill a restitution request from another party. Emden’s replica Pirna by Bellotto was mistakenly sent in place of a replica of the same painting painted by someone other than Bellotto. The Monuments Men did not recognize the mistake until 1949. They requested the return of the painting, but by that time the painting was no longer in the SNK’s possession. The painting was shipped to the U.S., where it later became a part of the collection of the Museum of Fine Arts in Houston. (Emden at 2-5.)

Emden’s descendants sued the museum, seeking to recover the painting. The district court dismissed their first complaint without prejudice, relying on the act of state doctrine, and denied their second amended complaint with prejudice, again based on the act of state doctrine. (Emden at 5.)

Act of State Doctrine

On appeal, the circuit court agreed with the district court’s conclusion that the act of state doctrine barred the Emdens’ claim. The doctrine “bars American courts from ‘sit[ting] in judgment on the acts of the government of another [state], done within its own territory.’” (Emden at 6 (citing Spectrum Stores, Inc. v. Citgo Petro Corp., 632 F.3d 938, 948 (5th Cir. 2011)).)

The Emdens argued that there was no act of state because (1) the SNK believed it was restituting a different painting, (2) the SNK did not act with the official and legitimate authority of the Dutch government, (3) U.S. and Dutch foreign policy favor restituting stolen art, and (4) the Dutch government’s acts did not occur exclusively in the Netherlands, as the painting was shipped to the U.S. (Emden at 8.)

The appeals court rejected the first argument because, although the SNK intended to ship a different painting, it ultimately shipped Emden’s painting, and the court could not adjudicate the effect of the shipping on the painting’s ownership without calling an act of the Dutch government into question. (Emden at 8-13.)

The appeals court also disagreed with the second argument that the SNK was illegitimate, unofficial and, therefore, not a state actor because

the SNK was the restitution agency for the Netherlands: It could request allegedly Dutch art from the [facility operated by the Monuments Men]; the foundation’s representative was a Dutch military officer, and he signed off on behalf of the government; and the SNK submitted Dutch Declaration form 7056—an official Dutch government form—to claim paintings from the [Monuments Men facility]. (Emden at 18-19.)

The appeals court rejected the claim that foreign policy favored restituting the painting, because “adjudicating the Emdens’ claim could create a negative impact on foreign relations, even if a limited one.” The appeals court noted that despite the policy of the U.S. and the Netherlands supporting proper restitution of stolen art, the Dutch government has not disclaimed the SNK’s actions regarding the painting at issue, making it inappropriate for the court to adjudicate on the Dutch government’s actions. (Emden at 22.)

The final claim, that the act of state doctrine did not apply because the act did not exclusively take place within the Netherlands, failed because although the painting was shipped to the U.S., the shipping and all other acts related to the painting took place in the Netherlands. (Emden at 22-23.)

Texas State Law Claims

The Emdens also brought Texas state law claims, arguing that even if their claim was barred by the act of state doctrine, they could alternatively seek a declaratory judgment that they own the painting and “the Museum’s possession constitutes conversion and theft under Texas state law.” The appeals court rejected this argument because proceeding with the claim would “cast doubt on the validity of the Dutch government’s actions,” which would undermine the court’s application of the act of state doctrine. (Emden at 23-24.)

Sarah Friedman, Law Library of Congress
June 12, 2024

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Chicago citation style:

Friedman, Sarah. United States: Appeals Court Holds Act of State Doctrine Bars Recovery of Painting Sold During World War II. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-06-11/united-states-appeals-court-holds-act-of-state-doctrine-bars-recovery-of-painting-sold-during-world-war-ii/.

APA citation style:

Friedman, S. (2024) United States: Appeals Court Holds Act of State Doctrine Bars Recovery of Painting Sold During World War II. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-06-11/united-states-appeals-court-holds-act-of-state-doctrine-bars-recovery-of-painting-sold-during-world-war-ii/.

MLA citation style:

Friedman, Sarah. United States: Appeals Court Holds Act of State Doctrine Bars Recovery of Painting Sold During World War II. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-06-11/united-states-appeals-court-holds-act-of-state-doctrine-bars-recovery-of-painting-sold-during-world-war-ii/>.