# United States Court of **Appeals f**  **or the Fifth Circuit**

**____________** No. 23

- 20224

**____________ Juan Carlos Emden; Nicolas Emden; Michel Emden,**  Plaintiffs

— Appellants **,**

versus **The Museum of Fine Arts, Houston,** Defendant— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21

- CV

- 3348

**______________________________** Before **Smith, Haynes**  **,** and **Douglas ,**  Circuit Judges

. **Jerry E. Smith** , Circuit Judge : In the years leading up to World War II, the Nazis ’ persecution of European Jews forced Max Emden to sell his three Bernardo Bellotto replica paintings. After the war, the Monuments Men found those paintings in a salt mine in Austria and began the restitution process. 1 One was shipped to the Netherlands to fulfill a claim forwarded by the Dutch Art Property Founda

-

**_____________________**

1 The Monuments Men were a group of “scholar soldiers”

— museum curators, art historians and professors, librarians, architects, and artists who were also U.S. military officers

— acting to facilitate the restitution of art stolen by the Naz is. United States Court of Appeals Fifth Circuit 

### FILED May 29, 2024 Lyle W. Cayce Clerk Case: 23-20224 Document: 61-1 Page: 1 Date Filed: 05/29/2024No. 23

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2 tion (the “SNK”) f rom a gallery in Amsterdam

. But th e SNK omitted one key detail: Bernard Bellotto had not painted t he gallery’s version

. Failing to recogniz e that it had received the wrong painting, the SNK adjudicated the competing claims of the gallery and of a former Neth er lands resident. It determined that the latter’s claim was stronger and shipped the painting to him in the United States

. The painting even tually made its way to the Museum of Fine Arts in Houston (the “Museum ” ) , where it resides

. Plaintiff s

— Juan Carlos Emden , Nicolas Emden , and Michel Emden (collectively , the “Emdens”)

— are Max Emden’s heirs , seeking to recover the painting

. Th e district court dismissed their claim because of the act of state doctrine , reasoning that any evaluation would require it to question an action of the Dutch government

— a foreign state. It would, and t hat is precisely what the act of state doctrine prohibi ts , so we affirm the dismissal.

I. A. Pre

- and I n tra

- War Th e dispute centers on two paintings

— one owned by Max Emden and one by Hugo Moser

— recovered from the Nazis after World War II

.
1. Emden Emden owned three paintings by Bernardo Bellotto, including a

c. 1764 replica of Belloto’s The Marketplace at Pirna . Because Bellotto had painted Emden’s replica himself, i t is known in art parlance as a “By Bellotto.” As they ascended to power, the Nazis persecuted and restricted Jews throughout Germany, pursuing even those non

- residents who merely owned businesses or property there. Facing Nazi

- induced financial distress, Emden was forced to part with his three painti ngs, selling them

— at below

- market prices

— to an art dealer , who immediately resold the m to the R e ichskanzlei Case: 23-20224 Document: 61-1 Page: 2 Date Filed: 05/29/2024No. 23

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3 (Reich Chancellery) for inclusion in the Führermuseum

.
2

. Moser Moser was a German art dealer and collector who purchased a replica of The Marketpl ace at Pirna in 1928. Though his copy was originally sold as a

“ By Bellotto, ” an unknown artist

— not Bellotto

― had painted it

. Moser’s copy is therefore known, in art parlance, as an “After Bellotto.” Moser fled Germany for the Netherlands when the Nazis c ame to power in 1933, bringing his After Bellotto Pirna with him. Several years later, j ust ahead of the Nazi invasion, he fled the Netherlands, leaving the painting with an art restorer in Amsterdam. The painting then made its way to the Goudstikker Gallery, from which a Nazi art dealer purchased it for Hitler’s Führer museum in 1942

.
B

. Po st

- War In 1945 , the Monuments Men found Emden’s three Bellotto paintings in a salt mine in Austria. Six months later, they recov e red M oser’s After Bellotto Pirna from a storage facility. The Monuments Men trans ferred a ll four paintings to the Munich Central Collecting Point (“MCCP”) and anal

yzed each painting , attempting to ascertain each’s artist, subject matter, and condition.
Under o fficial American policy , the Monuments Men returned “read

ily identifiable” art to claimants through their respective allied govern

ments. 2 In the Netherlands, th o se claims were received and processed by the SNK

— a foundation created b y the Dutch government. Though the SNK

**_____________________**
2 For a detailed recap of the United States’s post

- war restitution processes, see Von Saher v. Norton Simon Museum of Art at Pasadena ( Von Saher I ), 592 F.3d 954, 957

– 58, 962

– 63 (9th Cir. 2010). Case: 23-20224 Document: 61-1 Page: 3 Date Filed: 05/29/2024No. 23

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4 served as a repository for returned artwork, the Dutch government never decreed that the SNK owned the artworks in its possession

. 3 After receiving a claim from t he Goudstikker Gallery for the After Bellotto Pirna , the SNK submitted a request to the MCCP. Crucially, though, the SNK ’s request did not specify which version of the painting the Gallery had claimed

. Instead, it merely referred to the Pirna as one “ by ” Bellotto. With only one By Bellotto Pirna at the MCCP, the Monuments Men responded to the SNK’s request by shipping Emden’s painting

. U pon its arrival in the Netherland s, Dutch Lieutenant Colonel Voren

kamp signed a custody receipt confirming its delivery to the SNK

. 4 But, b efore it could restitute the painting to the Gallery, the SNK received a con

flicting claim from Moser. After adjudicating the conflict in Moser’s favor, the SNK shipped him what it believed was the After Bellotto Pirna

— which was, in actuality, Em den’s By Bellotto Pirna

. 5
I t was not until 1949 that the Monuments Men dis covered their

error

— t hey had sent Emden’s By Bellotto Pirna to fulfil l a claim for Moser’s After Bellotto Pirna

. The Monuments Men requested the Netherlands to return the painting, but it was too late: The painting was no longer in the

**_____________________**
3 According to the Emdens , “[a]t the outset, the SNK’s post

- war creation was as a foundation to serve as a repository for returned artwork with no authority to transfer the works, and it operated outside existing government Ministries and departments.” The First Amended Complaint also alleges an abbreviated, but troubled, history of the SNK, including the arrest of its head for fraud and grifting, a serious lack of expertise, and a “downright chaotic” administration.

4 That receipt conditioned the delivery of the painting on the Netherlands ’ s agree
ing to restore any object that ha d been delivered to it by mistake.

5 In 1952, Moser sold the By Bellotto Pirna to the American collector Samuel Kress , who, a year later, loaned the By Bellotto Pirna to the Museum, converting the loan into a donation in 1961. Case: 23-20224 Document: 61-1 Page: 4 Date Filed: 05/29/2024No. 23

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5 SNK’s custody, and the Dutch government had begun winding down the entire foundation. So, the request went unfulfilled.

C

. Modern Restitution Efforts In recent years, the Emdens have attempted to restitute all three Bel

lotto paintings. In 2019, the German Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property ( the “Commission”) , reviewed the Emden s’ claim for r estitution of the other two Bellotto paintings. The Commission’s detailed ruling was un

equiv ocal: The Nazis had caused Emden ’ s financial hardship , forcing him to sell the paintings

. Additionally, the Commission concluded that the Monu

ments Men had er roneously restituted Emden’s By Bellotto Pirna to the Netherlands. Perceiving the Commission’s conclusion as confirming Max Emden ’s ownership of the painting at the Museum , the Emdens sued the Museum

. T he district court dismiss ed the ir first complaint without prejudic e, relying on the act of state doctrine

. 6 Th ough their amended complaint attributed more of the errors to the SNK than to the Dutch government , t he court again applied the act of state doctrine , this time dismissing with prejudice. 7

II. A. Standard of Review We review a Federal Rule of Civil Procedure 12(b)(6) dismissal under

**_____________________**
6 See generally Emden v. Museum of Fine Arts, Hous

. , No. 4:21

- CV

- 3348, 2022 WL 1307085 (S.D. Tex. May 2, 2022)

.

7 See generally Emden v. Museum of Fine Arts, Hous

. , No. 4:21

- CV

- 3348, 2023 WL 3571973 (S.D. Tex. Apr. 24, 2023)

. Case: 23-20224 Document: 61-1 Page: 5 Date Filed: 05/29/2024No. 23

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6 the act of state doctrine de novo

. Spectrum Stores, Inc. v. Citgo Petro. Corp. , 632 F.3d 938, 948 (5th Cir. 2011) (citing Lane v. Halliburton , 529 F.3d 548, 557 (5th Cir. 2008)). “In undertaking this review, we take the well

- pled fac

tual allegations of the complaint as true and view them in the light most favorable to the plaintif f.’” Id. (quoting Lane , 529 F.3d at 557). 8 Still, the plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 554, 570 (2007)). Upon a party’s pro viding notice of an issue concerning the laws of a foreign state, we “may consider any relevant material or source”

— including those “ not submitted by a party”

— about that foreign state ’s laws. **Fed. R. Civ. P.** 44.1; s ee also Access Telecom, Inc. v. MCI Te lecomm s. Corp. , 197 F.3d 694, 713 (5th Cir. 1999)

.
B

. Act of State Doctrine A judicial creation rooted in separation

- of

- powers principles, the act of state doctrine bars American courts from “sit[ting] in judgment on the acts of the government of another [ state], done within its own territory.” 9 It

“ limits, for prudential rather than jurisdictional reasons, the adjudication in

**_____________________**
8 Though we may not consider other materials beyond the pleadings, we may exam

ine “any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 387 (5th Cir. 2010) (citation omitted).

9 Spectrum Stores , 632 F.3d at 954 (quoting Underhill v. Hernandez , 168 U.S. 250, 252 (1897)); see also W.S. Kirkpatrick & Co. v. Envt’l Tectonics Corp., Int’l , 493 U.S. 400, 405 (1990); Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398, 401 (1964), superseded in part by 22 U.S.C. § 2370(e)(2); Ricaud v. Am. Metal Co. , 246 U.S. 304, 309 (1918); see generally **George A. Bermann & Donald E**

**. Childress, Transnational**  **Litig**

**. in a Nutshell**  179

– 93 (2d ed. 2021); **Restatement (Fourth) of For**

  ** eign Relations Law** § 441 ( **Am. L. Inst.** 2024)

. Case: 23-20224 Document: 61-1 Page: 6 Date Filed: 05/29/2024No. 23

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7 American courts of the validity of a foreign sovereign’s public acts.” 10 The doctrine “is a vital rule of judicial abstention in the field of foreign rela

tions.” 11 That is because “juridical review of acts of state of a foreign power could embar rass the conduct of foreign relations by the political branches of the governm ent.” 12
The act of state doctrine applies “even if the defendant is a private party, not an instrumentality of a foreign state, and even if the suit is not based specifically on a sovereign act.” 13 Whe n applicable, it “provides .

. . a sub stantive defens e on the merits.” 14

III. The Emdens contend that the By Bellotto Pirna belongs to them because Moser never obtained good title to it. Passing judgment on the mer
its of that claim requires us first to resolve whether the act of state doc trine applies. Specifically, we must determine whether the SNK’s trans mis sion of the painting was an act of the Dutch government. 15

**_____________________**
10 Walter Fuller Aircraft Sales, Inc. v. Republic of Phil. , 965 F.2d 1375, 1387 (5th Cir. 1992) (citing W.S. Kirk patrick , 493 U.S. at 404); see also Banco Nacional , 376 U.S. at 418 (quoting Ricaud , 246 U.S. at 309) (The act of state doctrine “does not deprive the courts of juris diction once acquired over a case.”); Republic of Austria v. Altmann , 541 U.S. 677, 700 ( 2004).

11 Indus. Inv. Dev. Corp. v. Mitsui & Co. , 594 F.2d 48, 55

– 56 (5th Cir. 1979).

12 Spectrum Stores , 632 F.3d at 954 (quoting First Nat’l City Bank v. Banco Nacional de Cuba , 406 U.S. 759, 765 (1972) )

.

13 Geophysical Serv., Inc. v. TGS

- NOPEC Geophysical Co. , 850 F.3d 785, 796 (5th Cir. 2017) (quoting Callejo v. Bancomer, S.A. , 764 F.2d 1101, 1113 (5th Cir. 1985)).

14 Spectrum Stores , 632 F.3d at 949 (quoting Altmann , 541 U.S. at 700).

15 That the Netherlands is not a party to the suit is of n o moment. See supra note 13 and accompanying main text. Case: 23-20224 Document: 61-1 Page: 7 Date Filed: 05/29/2024No. 23

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8 According to the Emdens, the act of state doctrine does not apply for four reasons : First , there wa s no act of state because the SNK believed it was restituting the After Bellott o Pirna

. Second , the SNK illegitimately, and there fore, necessarily, unofficially delivered the By Bellotto Pirna to Moser

. Third , U. S. and Dutch foreign policy favor s restituting stolen art

. Fourth , the Dutch government’s acts did not occur exclusively within its territorial boundaries

. W e reject each of those theories

. First , the SNK’s shipping of the mis identified painting is an act of state. S econd , the foundation had sufficient governmental trappings

— and has been recognized as an official actor

— such that we cannot call its actions unofficial. Third , the prudential concerns laid out in Banco Nacional t ilt in favor of finding an implied negative foreign relations impact. Fourth , all the actions necessary to transfer the painting to Moser occurred within the Netherlands. Therefore, the district court prop

erly applied the act of state doctrine.

A

. Wheth er There Was a n Act of State T he SNK knew only that it had a replica of Bellotto’s Marketplace at Pirna

. Ignorant of whether the copy was a By Bellotto or an After Bellotto , the SNK unknowingly assumed it was the latter when adjudicat ing its own
ership and shipp ing the painting to Moser. Therefore, t he Emdens aver , the SNK did not undertake any action with respect to the By Bellotto Pirna

. The district court , reject ing that contention , explained that “the Dutch government [ ’ s] mis identif [ying] the painting does not undermine the Act of State doctrine’s relevance to the present matter” because a ny ruling still must ask “whether the [ foreign ] government’s conveyance should be Case: 23-20224 Document: 61-1 Page: 8 Date Filed: 05/29/2024No. 23

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9 ‘undone or disregarded.’” 16 On appeal, the Emdens maintain that the misiden tification precluded any action by the SNK on the By Bellotto Pirna

. Relying on several in

- and
out

- of

- circuit cases, t hey submit that the act of state doctrine bars only the review of an act’s validity

— not its effect

. The Emdens primarily rely on Geophysical Service for the proposition that our court evaluates the “effect” of an action separately from its “valid

ity

. ” In that case , a Canadian company sued its Texas

- based competitor, alleging violat ions of U.S. copyright law by, inter alia , importi ng copies of the company’s seismic line data. 850 F.3d at 788

– 89. But the competitor re

ceived that data from a Canadian agency that was authorized, under Canad

ian law, “to release it to members of the public upon specific request .” Id.
at 788. In def ense, the competitor asserted that the “first

- sale doctrine ” applied and that the act of state doctrine prevented judicial inquiry into whether its copy was “lawfully made.” Id. at 793; 17 U.S.C. § 109. The dis

trict court agreed, reasoning that any finding to the contrary would have the effect of “ decid ing that a foreign government acted unlawfully .” 850 F.3d
at 796.
We reversed , clarifying that the doctrine did not bar review of issues collateral to an act of state. “[E] ven if

. . . the copies were not ‘ lawfully made under [U.S. copyright law],’ that

. . . determination [ would ] not speak to the validity of the Canadian government ’ s actions

. . . .” Id. at 797. Nor would that determination speak to the legal effectivenes s of the agency’s trans

mitting that data to third parties. Instead, it would resolve only question s of

**_____________________**
16 2022 WL 1307085, at *5

– 6 (quoting W.S. Kirkpatrick , 493 U.S. at 407) (cleaned up) ; see also id

. ( citing Oetjen v. Cent. Leather Co. , 246 U.S. 297, 303

– 04 (1918); Ricaud , 246 U.S. at 310). Case: 23-20224 Document: 61-1 Page: 9 Date Filed: 05/29/2024No. 23

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10 liability arising from that third party’s using the data in a way that violates U.S. copyright law. In short, t h e Canadian agency

— by distributing copies of the seismic data

— did not purport to insulate the recipients of those copies from liability under U.S. copyright law

. So , holding a recipient liable for copyright infringement would resolve only the “effect” of the Canadian agency’s act in the United States and would no t question its validity. The Emdens interpret Geophysical Servic e as going further, though . In their view, it adopts United States v. Portrait of Wally , 663 F. Supp. 2d 232 (S.D.N.Y. 2009), in full, such that we can , and must, review any effect of an act of state. See Geophysical Serv. , 850 F.3d at 797.
In Portrait of Wally , the New York district court traced a detailed his

tory of that painting’s provena nce

— one not unlike the By Bellotto Pirna ’s. Bondi, a European Jew, allegedly sold the painting under duress in the prelude to World War II . 663 F. Supp. 2d at 237

– 39. The U

. S

. government later recovered the painting and trans ferred it to the Austrian F ederal Office for the Preservation of Historical Monuments ( “ BDA ” ). Id. at 240. 17 Sub

sequently , the BDA erroneously restituted Wally to the claimant for a differ

ent piece of art , entitled Portrait of his Wife

. Id. at 241. Later that same year, an Austrian national gallery bought Wally under the name Portrait of a Woman

. Id. Four years later, a collector bought Wally , under its actual name, from the national gallery and later sold his collection to the Leopold Museu m in Vienna. Id. at 243

– 45. 18 In 1996, the Leopold loaned Wally to the Museum

**_____________________**
17 Like the SNK faced difficulties in differentiating between the After and By Bel

lotto Pirna s, the BDA struggled to tell Wally apart from the painter’s Portrait of his Wife

. See Portrait of Wally , 663 F. Supp. 2d at 240

– 42.

18 As part of its act of state defense, the Leopold alleged that the Austrian gov

Case: 23-20224 Document: 61-1 Page: 10 Date Filed: 05/29/2024No. 23

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11 of Modern Art in the United States. Id. at 246. A fter the exhibit ended

— but before the Museum of Modern Art shipped Wally back

— the United States brought a forfeiture action a gainst the painting. Id.
The district court rejected the act of state defense, offering three rationales. First , it held that it was “ not being asked to invalidate any action by an Austrian governmental authority, but only to determine the effect of such action, if any, on Wally ’s ownership.” Id. at 248 (citing W.S. Kirk

patrick , 493 U.S. at 409

– 10). Second , it cast doubt on any claims that the “approvals” were official acts as “the [ Leopold ] has submitted nothing to show that the BDA, the Austrian Mini stry of Finance, or the Austrian Fed

eral Ministry of Education had any authority to dispose of artwork other than through the Restitution Commissions.” Id. (cleaned up). Third , “and per

haps most importantly, the [Leopold had] offer[ed] nothing to alter [the] determination [made in an earlier denial of the motion to dismiss] that the balance of interests favors adjudication of this action.” 19
If Portrait of Wally bound us, the Emdens would be correct

— the act of state doctrine would not bar an inquiry into whether the Museum had con

verted the By Bellotto Pirna

. But we and the Emdens read Geophysical Service differently. True, as part of its discussion of the act of state doctrine, Geo

physical Service noted that Portrait of Wally ’s holding wa s “persuasive ” and even analogized to it. 850 F.3d at 797. Yet that does not end the matter.

**_____________________** ernment had to approve both the national gallery’s purchase and sale of Wally

. Id. at 248.

19 Id. (citing United States v. Portrait of Wally, A Painting By Egon Schiele , No. 99 CIV. 9940, 2002 WL 553532 , at *9 (S.D.N.Y. Apr. 12, 2002) (“An inquiry into the BDA’s shipment of a painting under the post

- war Austria regime would not impinge upon the execut ive’s preeminence in foreign relations, particularly where the restoration of own er
ship has always been a professed goal of Austrian law and where it is the executive branch itself that brings this forfeiture action .

. . .”))

. Case: 23-20224 Document: 61-1 Page: 11 Date Filed: 05/29/2024No. 23

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12 S im i larity as to outcome is in no way an endorsement of the ratio decidendi underlying Portrait of Wally

. Geophysical Service ’ s analogy merely assumed , without deciding, t hat the New York district court’s “considering the right

ful ownership of the portrait ” would not “invalidate any action by [ the for

eign governmental authority ] .” Id. (cleaned up). On the other hand, in this
case, we could consider whether the Emdens are the rightful owners only by calling into question the validity of the Dutch government’s actions when the SNK sent the painting to Moser . That we may not do so is confirmed b y pre cedent in our own circuit, our sister circuits, and the Supreme Court

. In Walter Fuller Aircraft Sales , the act of state doctrine did not bar us from resolving an ownership dispute over a jet aircraft

— even though the defen dants were fo reign governments. 965 F.2d at 1388. We so ruled be

cause the case “ha [d] nothing to do with title to the aircraft, but [wa]s instead a damages action arising from a contract breach.” Id. So there was no need to “adjudicate the validity of any of the public acts” of the defendant gov ern
ments. Id. Indeed, as Walter Fuller explained, “all the public acts and deci

sions cited by the defendants may be valid and yet the [government party] still may have breached the contract.” Id.
In Celestin v. Caribbean Air Mail, Inc. , 30 F.4th 133 (2d Cir. 2022), the
court similarly reversed the dismissal of an antitrust claim related to price

fixing for remittances and phone calls between the United States and Haiti. T he act of state doctrine did not apply because “no official act of Haiti must be deemed invalid for liability to attach under federal law.” Id. at 135; see also id. at 142

– 43 (citing W.S. Kirkpatrick , 493 U.S. at 405

– 06).
The act of state doctrine did not bar review in Walter Fuller and Celes

tin because the issues presented were collateral to th e validity or legal effect of the foreign state act. At issue in Celestin was the unlawful motivation Case: 23-20224 Document: 61-1 Page: 12 Date Filed: 05/29/2024No. 23

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13 behind the foreign state action

— not its validity

. Id. at 144. 20 Similarly, Wal

ter Fuller dealt with the enforcement of the terms of a valid contract

— not the question of whether the parties , one of which was a foreign state actor , had the capacity to enter that contract in the first place. See 965 F.2d at 1388. So , as in Geophysical Service , the act of state doctrine did not bar review

. But t hose claims are quite different from the Emdens’

. The act of resti tution legally established the own er and poss essor of the By Bellotto Pirna

. The SNK could not have sent the painting without concurrently deter mining its rightful owner. Thus, any eval uation of the effect of the SNK’s act intrinsically implicates its validity

. The decision in W.S. Kirkpatrick puts the final nail in to the coffin of the Emden s’ theory. Per the Supreme Court, the act of state doctrine applies

“ when a court must decide

— that is, when the outcome of the case turns upon

— the effect of official action by a foreign sovereign. ” 493 U.S. at 406 (second emphasis added). That is fundamentally incompatible with the rea
son ing underlying Portrait of Wally

. So, like the di strict court, we decline to adopt the ratio decidendi of Portrait of Wally

. The SNK shipped the By Bellotto Pirna to Moser. Any adjudication of the shipping’s effect on the painting’s ownership would call into question the validity of that act.
The Emdens’ first claim fails.

B

. Whether t he Act Was Official The Emdens next assert that, even if the SNK “acted” by delivering

**_____________________**
20 See also 30 F.4th a t 14 0 ( declining to apply the act of state doctrine even after

“ as sum [ing] that a foreign state ’ s official acts executed within that state ’ s territory are valid in that they have the legal effects

— like transfers of title, assumptions or repudiations of con tr actual obligations, and grants of public authority

— that they purport to have ”). Case: 23-20224 Document: 61-1 Page: 13 Date Filed: 05/29/2024No. 23

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14 the By Bellotto Pirna to Moser, the SNK lacked state

- granted legitimacy , making its act unofficial : Not only did the Dutch govern ment never give the SNK official authority to transfer any paintings, but also the SNK arose from a morass of laws and found legal clarity only in those cases it appealed to the courts and official ministries. Further, the Emdens assert, the Dutch State Secretary for Education, Culture, and Science has since renounced the SNK, calling it “not a decision

making body” a nd explain ing that the Dutch government only considers “a restitution case settled if the claim for restitution has consciously and deliber

ately resulted in a settlement or if the claimant has waived the claim for restitution.” The Museum respond s to the alleged renunciation by averring that th o se attributed statements are conclusory and unsupported , a position the district court found compelling

. 2023 WL 3571973, at *2. We concur. The Emdens ’ pleadings lack sufficient support to assert plausibly that the Dutch government has renounced the SNK

. See Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557).

1

. T he Dutch Royal Decrees and the Von Saher Trilogy As for the SNK’s alleged illegitimacy, we turn to our sister court’s thorough analysis of Dutch Royal Decrees E100 and E133 in the Von Saher
t rilogy to refute that position.
At the end of World War II , the Dutch government issued Royal D ecrees E100 and E133 : Royal Decree E100 “ established a Council for Restor ation of Rights (‘the Council’), with broad and exclusive authority to declare null and void, modify, or revive ‘any legal relations that originated or were modified during enemy occupation of the [ Netherlands ] .’” Von Saher v. Norton Simon Museum of Art a t Pasadena ( Von Saher III ), 897 F.3d 1141, 1144 (9th Cir. 2018) (alteration in original) . “The Council had the exclusive Case: 23-20224 Document: 61-1 Page: 14 Date Filed: 05/29/2024No. 23

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15 power to order the return of property and to restore property rights to the original Dutch owners.” Id. Royal Decree E133 permitted the Netherlands
to “expropriate enemy assets in order to compensate the Netherlands for losses it suffered during World War II” and “automatically passe[d]” enemy property “in ownership to the State .

. . .” Id. at 1145. Combined, th o se two decrees creat ed a system by which the Dutch government automatically expropriated Dutch property stolen by the Nazis under E133 and then undid that expropriation and re

- vested rights in the original owner or his/her heir (s) under E100. 21 Until its dissolution, the SNK handled the restitution process under these decrees

. See Von Saher v. Norton Simon Museum of Art at Pasadena ( Von Saher II ), 754 F.3d 712, 717

– 18 (9th Cir. 2014).
In t he Von Saher trilogy , the Ninth Circuit thrice ruled on a dispute like t h e one before u s . Von Saher was the only surviving heir of Jacques Goud stikker. Von Saher I , 592 F.3d at 959. The Norton Simon Museum had obtained a diptych painted by Lucas Cranach the Elder, which Von Saher asserted had been looted by the Nazis from Goudstikke r’s c ollection

. Id. Then, after the war, the Allies sent the diptych to the MCCP, and it was returned to the Netherlands. Id. But “after restitution proceedings in the Neth erlands, the Dutch government delivered the two paintings to” another claimant in the 1960s. Id

. In Von Saher III , the court affirmed the summary judgment for the

museum on act

- of

- state grounds . 897 F.3d at 1156. The court focused its anal ysis on “whet her the conveyance constituted an official act of the sover

eign.” 897 F.3d at 1149 (cleaned up). As it explained, “the Netherlands

**_____________________**
21 See Lars van Vliet, The Dutch Postwar Restoration of Rights Regime Regarding Movable Property , 87 **Legal Hist. Rev.** 651, 651 (2019). Case: 23-20224 Document: 61-1 Page: 15 Date Filed: 05/29/2024No. 23

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16 passed Royal Decrees E133, to expropriate enemy property, and E100, to administer a system through which Dutch nationals f iled claims to restore title to lost or looted artworks.” Id. Then, the court confirmed that “[e]xpropriation of private property is a uniquely sovereign act

. ” Id. at 1150. It further agreed with the Norton Simon Museum’s contention that the “ Netherla nds considered itself the lawful owner of the works sold to [ Nazi Reichsmarschall Hermann G o ering ] and acted as their true owner” when it “agree [ d ] to convey them to ” the lat ter claimant. Id. ( cleaned up ). “Considered holistically, the adminis tra

tion of E100 and E133, the settlement with [V] on Saher’s family, and the convey ance of the Cranachs to [the latter claimant] in consideration of his restitution claim constitute an official act of state .

. . .” Id. at 1151. 22
There is no reason to reach any different conclusion here. The SNK effectuated E100 and E133 until its dissolution, meaning that its “administra

tion of [those decrees]

. . . and the conveyance of the [By Bellotto Pirna ] to [Moser] in consideration of his restitut ion claim constitute [d] an official act of state .

. . . ” Id. That the court in Von Saher III had additional grounds on which it could support its decision that the restitution was an official act , s ee supra note 22 , a nd that the ultimate restitution process it described occurred after the SNK folded has no impact on our analysis

. 23 T he SNK was the de

**_____________________**
22 The Ninth Circuit also considered the impact of the Dutch Court of Appeals’ s 1999 refusal to restore Von Saher’s rights to the paintings, 897 F.3d at 1151, and the Dutch g overnment’s 2004 “binding decision on [the] restitution claim that .

. . concluded t hat the [V] on Saher claim was ‘settled’ by the 1999 ‘final decision’ of the Court of Appeals,” id. at 1153 (emphasis omitted)

.

23 Similarly, that the Von Saher trilogy never dealt with any issues of mistaken identity

— the latter claimant and Von Saher both asserted ownership over the same piece of art and the Dutch government ruled on that same piece of art

— does not affect its analysis of the Royal Decrees. Case: 23-20224 Document: 61-1 Page: 16 Date Filed: 05/29/2024No. 23

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17 facto arm of the Dutch government handling restitution , and both expropriation and restitution are expressly governmental action s. 24
The Emdens instead point to Von Saher III ’s discussion of the Dutch gov ernment ’s 2001 Restitution Committee, contending that we should adopt that analysis alone and hold that th e SNK’s determination was simi larly unofficial. See id. at 1152

– 53

. But their comparison is inapt. The Dutch government did change its approach to restitution in 2001. Id. at 1152. But
the new restitution policy was not an official pronouncement that the previous Dutch policy was however invalid. Nor was the new policy es tablished to re

- examine old cases. Far from it, the new policy categorically did not apply to “ settled cases, ” defined as those in which “ either the claim for restitution re

sulted in a consci ous and deliberate settlement or the claimant expressly re nounced his claim for restitution. ”
Id. The new committee merely recommend ed to the State Secretary actions to take on new restitution claims. Id. Von Saher claimed that such recom

mendation s w ere subsequent act s of state , but the Ninth Circuit disagreed : T h ey were purely advisory, which meant they were not acts of state. Id.
at 1153 (citations omitt ed). Contrary to the Emdens’ claims, that new approach to restitution has no impact on our review of the SNK’s actions here . Once the SNK decided to ship the By Bellotto Pirna , it did so. It did not need the Dutch State Secre

tary to approve its decisi on. Thus, the SNK’s decisions were not advisory; they were executory

.

**_____________________**
24 See Von Saher III , 897 F.3d at 1150 (citing Oetjen , 246 U.S. at 303); id. at 1154. Case: 23-20224 Document: 61-1 Page: 17 Date Filed: 05/29/2024No. 23

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18 2

. Alternate Grounds Even if we chose not to rely on Von Saher III and the Royal Decrees, we would still affirm.
The district court ruled that a sentence from the Short General His

t ory portion of the 1998 “Origins Unknown report” on the SNK indicated that it was an official actor because it had been “set up by [both] the Ministry of Education, Arts [ , ] and Sciences and the [ M ] inistry of Finance.” 2023 WL 3571973, at *3

. 25 The Emdens respond by suggesting that the historical con
text of the SNK

— namely, that it was a “separate organization” from the Ministries and that it was not funded by them

— demonstrates that the district
court err ed . Further, they contend that the cour t gave improperly short shrift to the First Amended Complaint’s allegations.
But the Origins Unknown report includes not only the “set up” phrase . I t also details how the SNK worked within the Dutch government’s post

- war restitution program

. A body set up by the government, operating within i t, and exercising governmental powers

— even if not funded by i t

— is best categorized as an official actor

. The SNK meets those criteria. The pleadings further support th at understanding. They state that t he SNK was the restitution agency for the Netherlands : It could request alleg

edly Dutch art from the MCCP; the foundation ’s representative was a Dutch

**_____________________**
25 The Origins Unknown project was created by the Dutch government “to trace the original owners of the artwork in [the Dutch government’s] custody.” Von Saher II , 754 F.3d at 717 ; s ee generally **Ekkart Comm**

**. , Origins Unknown Report on**  **the Pilot Study into t he Provenance of Works of Art Recovered**  **from Germany and Currently Under the Custodianship of the State of the Netherlands**  (Apr

. 1998)

. The Emdens quoted the report in their amended complaint, and the museum attached it to the motion to dismiss, making th e district court’s and our consideration of the entire document proper. See Lone Star Fund V , 594 F.3d at 387. Case: 23-20224 Document: 61-1 Page: 18 Date Filed: 05/29/2024No. 23

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19 military officer, and he signed off on behalf of the government ; and the SNK submitted Dutch Declaration Form 7056

— an official Dutch g overnment form

— to claim paintings from the MCCP. Set up as it was and exercising its powers as it did, the SNK was an official actor. 26
The Emdens’ second claim fails.

C

. Whether There Would Be a Ne gative Impact on Foreign Relations The Emdens contend , third , that the consensus between U .S. and Dutch foreign policies supports our not applying the act of state doctrine. They point to the U.S. government’s advocating for the return of looted art to vi ctims, and, more broadly, to the U.S.’s and Netherlands’s embrace of the Washington Principles. 27 Thus, they contend, even if the SNK per

formed an official act in shipping the By Bellotto Pirna , “the policies under

lying the

. . . doctrine may not justif y its application.” 28 The Museum offers two rebuttals. First, it point s to the Dutch gov

ern ment’s modern

- day process for revok ing post

- war restitution decisions

.

**_____________________**
26 We make that determination, of course, for the sake of this case only. We do not claim competence to evaluate the legal structure of a forei gn government if such is disputed. Even accepting , arguendo , that the Dutch government has disavowed the SNK in some way, the Emdens lack sufficient citations to suggest that the SNK was not an official actor in the 1940s. If they care to do so, they likely must pursue such a claim in the Netherlands.

27 See **U.S. Department of State, Washington Conference Prin** 

**** **ci ples on Nazi** 

**- Confiscated Art**  (1998), https://www.state.gov/washington

c onference

- principles

- on
- nazi

- confiscated

- art/

.

28 Von Saher III , 897 F.3d at 1155 (quoting W.S. Kirkpatrick , 493 U.S. at 409); see also Geophysical Serv. , 850 F.3d at 797 (“We are unable to see .

. . how passing on TGS’s first sale defense will ‘ imperil th e amicable relations between governments and vex the peace of nations.’” (quoting Jimenez v. Aristeguieta , 311 F.2d 547, 558 (5th Cir. 1962))). Case: 23-20224 Document: 61-1 Page: 19 Date Filed: 05/29/2024No. 23

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20 In its telling, the failure to use that process suggests th at government’s impl i

cit endorsement of the SNK’s restitution decision. Second, the Museum

con tends the policies underlying the act of state doctrine explicated in Banco Nacional , and quoted in Von Saher III , support applying the doctrine . Those policy considerations are (1) Th e greater the degree of codification or consensus con

cern ing a particular area of international law, the more appro

priate it is for the judiciary to render decisions regarding it. (2) The less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches. (3) The balance of relevant considera

tions may also be shifted if the government which perpetrated the challenged act of state is no longer in existence. [ 29 ]
In Von Saher III , all three polic y considerations weighed in favor of applying the act of state doctrine : There was no “identified .

. . international consensus regarding the invalidity of the Dutch post

- war restitution proce

dures , ” and “the State Department and Solicitor General’s O ffice confirmed

. . . that upholding the Dutch government’s actions is important for U.S. for

eign policy.” Id . at 1155. Further, the Dutch government had “been in con

tinuous existence since the relev ant acts of state.” Id. at 1156. Here, t he second consideration may tilt slightly against apply ing the act of state doctrine. Still, t he other two outweigh the second. So, the policy

con sid erations encourage the application of the doctrine.
As was tr ue in Von Saher III , the Emdens have not alleged any form of codifi cation concerning th e area of law. But, they contend the respective gov
ern ments have reached a semblance of a consensus on international restitu

-

**_____________________**
29 Von Saher III , 897 F.3d at 1155 (quoting Banco Nacional , 376 U.S. at 428) (cleaned up). Case: 23-20224 Document: 61-1 Page: 20 Date Filed: 05/29/2024No. 23

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21 tion law with the Washington Principles : T he United States has called out American museums for blocking restitution through the use of affirmative defenses in contravention of the Washington Principles ; 30 the Dutch govern

ment has joined the United States in adopting the Washington Principles; and the Dutch government has even changed the Dutch art restitution policy
to favor museums over individual victims no longer

. W e read those allega

tions together to assert that our foreign relations will be immune from , if not benefited by, a review for consistency with the Washington P rinciples

. Still, consensus regarding the Washington Principles does not equate
to consensus casting doubt on the Dutch post

- war restitution process. The closest the Emdens come to making such an allegation i s where they describe the U nited States as having “criticized as contrary to the Washington Princi

ples the Dutch government’s restitution analysis for adding in a new ‘balanc

ing’ test.” First Am

. Compl

. ¶ 79 (emphasis added). In other words, even assuming that the restitution decisions may not have been “just and fair solu

tions” under the Washington Principles, the Emdens have still not shown that they were invalid at the time they were made

. We turn to the second consideration. Read charitably, but see supra
note 26 , the Emdens claim that the Dutch government has disavowed the

**_____________________**
30 U.S. policy includes the following tenets: (1) a commitment to respect the finality of ‘appropriate actions’ taken by foreign na

tions to facilitate the internal restitution of plundered art; (2) a pledge to identify Nazi

looted art that has not been restituted and to publicize those artworks in order to facilitate the identi fication of prewar owners and their heirs; (3) the encouragement of prewar own

ers and their heirs to come forward and claim art that has not been restituted; (4) con certed efforts to achi eve expeditious, just and fair outcomes when heirs claim ownership to looted art; (5) the encouragement of everyone, includ ing public and private institutions, to follow the Washington Principles; and (6) a recommendation that every effort be made to reme dy the con sequences of forced sales. Case: 23-20224 Document: 61-1 Page: 21 Date Filed: 05/29/2024No. 23

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22 SNK and its restitution proceedings. Thus, the Emdens’ claim may differ from Von Saher’s claim in that upholding the Dutch government’s actions is

“ [ un ]important for U.S. foreign policy.” 897 F.3d at 1155. Whether the Emdens have sufficiently ple a d ed that fact, though, is irr elevant. The Dutch government still exist s, so, as in Von Saher III , the third factor tilts towards our applying the act of state doctrine. Therefore, though the United States and the Netherlands have ex
pressed a desire to restitute stolen art properly, the policy justifications under l ying the act of state doctrine still justify our applying it here. The Emdens have ple a d ed little

- to

- no codification concerning , or consensus re
gard ing, the validity of the SN K’s decisions; the Dutch government still exists; and the Dutch have not sought to disclaim the SNK’s actions regard

ing the By Bellotto Pirna nor proceeded through the Netherlands’s alterna

tive recov ery process for wrongly restituted art. W e conclude t hat adjudi

cating th e Emdens’ claim could create a negative impact on foreign re lations, even if a limited one. And that is exactly what the act of state doctrine prohibits.
The Emdens’ third claim fails.

D

. Whether t he Act W as Extraterritorial Fourth , the Emdens assert that the Dutch government did not act solely within the Netherlands. The By Bellotto Pirna moved from Austria to the MCCP, to the Netherlands, to the United States

― all , the Emdens claim, in a single transaction. Because the act of state doctrine applies only to a sovereign’s “act within its own boundaries , ” Ricaud , 264 U.S. at 310 , they contend that the multi

- national nature of the transaction prevents the doc

trine’s application

. T rue, t he act of state doctrine includes a territoriality requirement. American courts may, where otherwise proper , sit in judgment on acts of Case: 23-20224 Document: 61-1 Page: 22 Date Filed: 05/29/2024No. 23

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23 foreign governments that occurred in the United States. See Geophysical Serv. , 850 F.3d at 796 (citing W.S. Kirkpatrick , 493 U.S. at 405). But that is not what happene d here. The sole extraterritorial action was the ultimate delivery of the By Bellotto Pirna to Moser. Even if we focus only on the ship

ment of the painting

— not the adjudication of the competing claims

— the shipping occurred in the Netherlands. Therefore , the territoriality require

ment is met.
The Emdens cite Maltina Corp

. v. Cawy Bottling Co. , 462 F.2d 1021 (5th Cir. 1972), to contend that the act of state doctrine does not bar claims where the property sought is sited in the United States. That case focused on whether Cuba’s expropriation of a beer and “malta” company’s assets included its United States trademark. 462 F.2d at 1023. We ruled that the act of state doctrine did not bar our review of that expropriation because “trademarks registered in this country are generally deemed to have a local identity

— and situs

— apart from the foreign manufacturer.” Id. at 1026 (inter nal quotation marks and citation omitted).
But those facts make th e Emdens’ claims entirely distinguishable. The “act” here occurred purely in the Netherlands because the “act” was the shipping of the By Bellotto. In other words, the conveyance “c[a]me to complete fruition” in the Netherlands. Id. at 1028. Thus, the Emdens’ claim is more like the expropriation of sugar that occurred in Banco Nacional than like the transfer of the trademark in Maltina

. Compare Maltina , 462 F.2d
at 1028, with Banco Nacional , 376 U.S. at 413

– 15. The Emdens’ fourth claim fails.

IV. Alter natively, t he Emdens ask us to reverse the dismissal of the ir Declaratory Judgment Action alleging Texas state law claims. They contend that, even if the act of state doctrine prevents their recovery of the By Bellotto Case: 23-20224 Document: 61-1 Page: 23 Date Filed: 05/29/2024No. 23

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24 Pirna , they still should be able to pursue declaratory relief. But their request shows exactly why we must affirm th e district court’s ruling on this too

. The Emdens request a declaration that they are the “sole, joint owners of the” By Bellotto Pirna and that the Museum’s possession constitutes conversion and theft under Texas state law. If we allowed that claim to go forward, and if the Emdens prevailed, the declaratory judgment would inherently cast doubt on the validity of the Dutch govern

ment’s actions. Worse, it would undercut our application of the act of state doctrine while leaving the Emdens without recompense. The Emdens’ fifth claim fails.

* * * * * The most straightforward and charitable reading of the Emden s ’ com

plaint inevitably requires a ruling by a U

. S . court that the Dutch government invalidly sent Moser the By Bellotto Pirna

. The Emdens may be right: T he Monuments Men may have improperly sent the By Bellotto Pirna to the SNK; the SNK may have unjustifiably sent Moser the By Bellotto Pirna even though he had a cl aim to only the After Bellotto Pirna ; and the Museum may be violating the Washington Principles by refusing to return the painting to the Emdens.
But , per the act of state doctrine , it is not our job to call into question the decisions of foreign nations . A s ple a d ed , the SNK ’s shipping Moser the By Bellotto Pirna is an official act of the Dutch government . The validity and legal effect of that act is one that we may not dispute

. The judgment of dismissal is **AFFIRMED**

**.** Case: 23-20224 Document: 61-1 Page: 24 Date Filed: 05/29/2024