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COURT REVIVES ARMENIANS' SUIT FOR GENOCIDE BENEFITS
By TIM HULL
Courthouse News Service
http://www.courthousenews.com/2010/12/12/32518.htm
Dec 13 2010
(CN) - The 9th Circuit revived a class action for insurance benefits
filed by survivors of the Armenian genocide, finding that there is
no federal policy that forbids California from recognizing the World
War I-era killing of more than 500,000 Armenians as a genocide.
In a rare reversal, the federal appeals panel in Pasadena on
Friday rejected its own 2009 opinion that the lawsuit was barred by
federal foreign policy. In that ruling, Judge David Thompson wrote for
the majority that the executive branch, by lobbying Congress against
making the term official, had "clearly establish[ed] a presidential
foreign policy preference against proving legislative recognition to an
'Armenian genocide.'"
Now, with Thompson in the dissenting minority, the panel has
reached the opposite conclusion.
"Considering the number of expressions of federal executive and
legislative support for recognition of the Armenian genocide,
and federal inaction in the face of explicit state support for
such recognition, we cannot conclude that a clear, express federal
policy forbids the state of California from using the term 'Armenian
genocide,'" Judge Harry Pregerson wrote for the majority on Friday.
Pregerson wrote something similar in dissent last year.
In 2003, lead plaintiff Vazken Movsesian and other Californians
of Armenian descent sought damages for bad faith, breach of contract
and constructive trust from two German insurers owned by Munich Re.
The lawsuit relied on a California law that gave victims until the
end of 2010 to file insurance claims related to the mass extermination
of Armenians in the Ottoman Empire between 1915 and 1923.
The district court granted Munich Re's motion to dismiss the
claims for unjust enrichment and constructive trust, but allowed the
breach of contract and bad-faith claims, finding that the California
law was not preempted under the foreign affairs doctrine.
On appeal in August 2009, the 9th Circuit voted 2-1 to dismiss
the plaintiffs' claims for unjust enrichment and constructive trust,
but allowed them to sue for breach of contract.
On rehearing, however, the panel was not convinced by the
"informal presidential communications" that Munich Re presented
as evidence of an "express federal policy against use of the term
'Armenian genocide.'"
Instead, the panel pointed to more than a decade of executive
branch commemorations and lobbying on behalf of Armenian victims.
"The executive branch has repeatedly used terms virtually
indistinguishable from 'Armenian genocide.'" Pregerson wrote, citing
the use of the term by Presidents Reagan, Clinton and Obama.
"We conclude that there is no express federal policy forbidding
states to use the term 'Armenian genocide,' and we affirm the district
court," Pregerson wrote.
In dissent, Thompson made substantially the same argument that he
made last year.
"Based on this undisputed evidence, which in my view is not
undermined by the federal government's occasional efforts to
commemorate these tragic and horrific events, I would conclude that
there is an express foreign policy prohibiting legislative recognition
of the 'Armenian genocide,' as pronounced by the executive branch
and as acquiesced in by Congress," Thompson wrote.
From: A. Papazian
By TIM HULL
Courthouse News Service
http://www.courthousenews.com/2010/12/12/32518.htm
Dec 13 2010
(CN) - The 9th Circuit revived a class action for insurance benefits
filed by survivors of the Armenian genocide, finding that there is
no federal policy that forbids California from recognizing the World
War I-era killing of more than 500,000 Armenians as a genocide.
In a rare reversal, the federal appeals panel in Pasadena on
Friday rejected its own 2009 opinion that the lawsuit was barred by
federal foreign policy. In that ruling, Judge David Thompson wrote for
the majority that the executive branch, by lobbying Congress against
making the term official, had "clearly establish[ed] a presidential
foreign policy preference against proving legislative recognition to an
'Armenian genocide.'"
Now, with Thompson in the dissenting minority, the panel has
reached the opposite conclusion.
"Considering the number of expressions of federal executive and
legislative support for recognition of the Armenian genocide,
and federal inaction in the face of explicit state support for
such recognition, we cannot conclude that a clear, express federal
policy forbids the state of California from using the term 'Armenian
genocide,'" Judge Harry Pregerson wrote for the majority on Friday.
Pregerson wrote something similar in dissent last year.
In 2003, lead plaintiff Vazken Movsesian and other Californians
of Armenian descent sought damages for bad faith, breach of contract
and constructive trust from two German insurers owned by Munich Re.
The lawsuit relied on a California law that gave victims until the
end of 2010 to file insurance claims related to the mass extermination
of Armenians in the Ottoman Empire between 1915 and 1923.
The district court granted Munich Re's motion to dismiss the
claims for unjust enrichment and constructive trust, but allowed the
breach of contract and bad-faith claims, finding that the California
law was not preempted under the foreign affairs doctrine.
On appeal in August 2009, the 9th Circuit voted 2-1 to dismiss
the plaintiffs' claims for unjust enrichment and constructive trust,
but allowed them to sue for breach of contract.
On rehearing, however, the panel was not convinced by the
"informal presidential communications" that Munich Re presented
as evidence of an "express federal policy against use of the term
'Armenian genocide.'"
Instead, the panel pointed to more than a decade of executive
branch commemorations and lobbying on behalf of Armenian victims.
"The executive branch has repeatedly used terms virtually
indistinguishable from 'Armenian genocide.'" Pregerson wrote, citing
the use of the term by Presidents Reagan, Clinton and Obama.
"We conclude that there is no express federal policy forbidding
states to use the term 'Armenian genocide,' and we affirm the district
court," Pregerson wrote.
In dissent, Thompson made substantially the same argument that he
made last year.
"Based on this undisputed evidence, which in my view is not
undermined by the federal government's occasional efforts to
commemorate these tragic and horrific events, I would conclude that
there is an express foreign policy prohibiting legislative recognition
of the 'Armenian genocide,' as pronounced by the executive branch
and as acquiesced in by Congress," Thompson wrote.
From: A. Papazian