Fifth Circuit Zeroes in on ‘Act of State Doctrine’ in Fight Between Heirs, Museum Over Painting

A doctrine intended to keep courts from second-guessing official actions of foreign governments was front-and-center during oral arguments Tuesday before a Fifth Circuit panel tasked with deciding whether to revive a lawsuit brought by a family that alleges a work of art sold under duress to a Nazi art dealer in the 1930s belongs to them and not the Museum of Fine Arts, Houston. 

The case is centered around who is the rightful owner of a 1753 painting by Bernardo Bellotto called “The Marketplace at Pirna” and pits the MFAH against the heirs of Dr. Max Emden, a German Jewish merchant who is the grandfather of the plaintiffs in this suit and who already owned two Bellotto paintings when he purchased “Marketplace” in 1930. The Fifth Circuit is tasked with deciding whether the act of state doctrine bars courts here from getting involved with what the museum contends was an official restitution decision of the Dutch government made in the wake of World War II.