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ARMENIAN GENOCIDE SUIT TOSSED, AGAIN, IN LATEST CIRCUIT APPEARANCE
By TIM HULL
Courthouse News Service
http://www.courthousenews.com/2012/02/23/44127.htm
Feb 24 2012
(CN) - A California law that allows state courts to hear insurance
claims by victims of the Armenian genocide cannot stand, a full panel
of the 9th Circuit ruled Thursday, finding that the statute intrudes
on policy territory reserved for the U.S. government.
The decision by an 11-judge panel in San Francisco sealed the fate of
a long-suffering class action for insurance benefits filed by survivors
of the World War I-era slaughter of more than 500,000 Armenians living
in the former Ottoman Empire. Turkey has resisted calling the killings
a genocide, and the issue is a politically touchy among its U.S. and
European allies in NATO.
California legislators passed a law in 2000 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.
Referencing the little-used theory of "field preemption" or "dormant
foreign affairs preemption," the judges found that section 354.4
of the law intrudes on the federal government's exclusive right to
handle foreign affairs.
"The existence of this general foreign affairs power implies that, even
when the federal government has taken no action on a particular foreign
policy issue, the state generally is not free to make its own foreign
policy on that subject," Judge Susan Graber wrote for the unanimous
panel. "Field preemption is a rarely invoked doctrine. Supreme Court
jurisprudence makes clear, however, that field preemption may be
appropriate when a state intrudes on a matter of foreign policy
with no real claim to be addressing an area of traditional state
responsibility."
The ruling marks the third time the 9th Circuit has considered the
issue, and it reverses a previous panel's revival of the underlying
class action last year.
Since 2003, Vazken Movsesian and other Californians of Armenian
descent have tried to use the law to win damages for bad faith,
breach of contract and constructive trust from two German insurers
owned by Munich Re.
A federal judge who first heard the case rejected the insurance
companies' contention that the foreign affairs doctrine pre-empted
the state law, but a three-judge appellate panel reversed, finding
that it infringed on federal foreign policy. On rehearing, however,
the panel found "no express federal policy forbidding states to use
the term 'Armenian genocide,'" and reversed.
The court then agreed to rehear the issue before a full panel.
That group reversed again and ordered dismissal of the class action
on Thursday.
"Section 354.4 expresses a distinct point of view on a specific matter
of foreign policy," Graber wrote. "Its effect on foreign affairs is not
incidental; rather, section 354.4 is, at its heart, intended to send a
political message on an issue of foreign affairs by providing relief
and a friendly forum to a perceived class of foreign victims. Nor is
the statute merely expressive. Instead, the law imposes a concrete
policy of redress for 'Armenian Genocide victim[s],' subjecting foreign
insurance companies to suit in California by overriding forum-selection
provisions and greatly extending the statute of limitations for a
narrowly defined class of claims. Thus, section 354.4 'has a direct
impact upon foreign relations and may well adversely affect the power
of the central government to deal with those problems.' Section 354.4
therefore intrudes on the federal government's exclusive power to
conduct and regulate foreign affairs."
The Armenian National Committee of America decried the ruling.
"This ruling opens the door for foreign governments to try to roll
back the clock on human rights, potentially putting at peril American
grassroots efforts - along the lines of the anti-Apartheid, Darfur
genocide, and Free Tibet movements - that so often start at the state
and local level, sometimes even against opposition at the federal
level, before winning broad acceptance by the American people and the
U.S. government," the committee's executive director, Aram Hamparian,
said in a statement. "Turkey has no right to hold all three branches
of the U.S. government hostage to its irrational and hateful denial
of the Armenian genocide, a crime that has already been broadly
recognized by American civil society and government, once by a U.S.
president, at least twice by the House of Representatives, 42 times by
separate U.S. states, and hundreds of times by municipal governments
in nearly every state of our union."
By TIM HULL
Courthouse News Service
http://www.courthousenews.com/2012/02/23/44127.htm
Feb 24 2012
(CN) - A California law that allows state courts to hear insurance
claims by victims of the Armenian genocide cannot stand, a full panel
of the 9th Circuit ruled Thursday, finding that the statute intrudes
on policy territory reserved for the U.S. government.
The decision by an 11-judge panel in San Francisco sealed the fate of
a long-suffering class action for insurance benefits filed by survivors
of the World War I-era slaughter of more than 500,000 Armenians living
in the former Ottoman Empire. Turkey has resisted calling the killings
a genocide, and the issue is a politically touchy among its U.S. and
European allies in NATO.
California legislators passed a law in 2000 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.
Referencing the little-used theory of "field preemption" or "dormant
foreign affairs preemption," the judges found that section 354.4
of the law intrudes on the federal government's exclusive right to
handle foreign affairs.
"The existence of this general foreign affairs power implies that, even
when the federal government has taken no action on a particular foreign
policy issue, the state generally is not free to make its own foreign
policy on that subject," Judge Susan Graber wrote for the unanimous
panel. "Field preemption is a rarely invoked doctrine. Supreme Court
jurisprudence makes clear, however, that field preemption may be
appropriate when a state intrudes on a matter of foreign policy
with no real claim to be addressing an area of traditional state
responsibility."
The ruling marks the third time the 9th Circuit has considered the
issue, and it reverses a previous panel's revival of the underlying
class action last year.
Since 2003, Vazken Movsesian and other Californians of Armenian
descent have tried to use the law to win damages for bad faith,
breach of contract and constructive trust from two German insurers
owned by Munich Re.
A federal judge who first heard the case rejected the insurance
companies' contention that the foreign affairs doctrine pre-empted
the state law, but a three-judge appellate panel reversed, finding
that it infringed on federal foreign policy. On rehearing, however,
the panel found "no express federal policy forbidding states to use
the term 'Armenian genocide,'" and reversed.
The court then agreed to rehear the issue before a full panel.
That group reversed again and ordered dismissal of the class action
on Thursday.
"Section 354.4 expresses a distinct point of view on a specific matter
of foreign policy," Graber wrote. "Its effect on foreign affairs is not
incidental; rather, section 354.4 is, at its heart, intended to send a
political message on an issue of foreign affairs by providing relief
and a friendly forum to a perceived class of foreign victims. Nor is
the statute merely expressive. Instead, the law imposes a concrete
policy of redress for 'Armenian Genocide victim[s],' subjecting foreign
insurance companies to suit in California by overriding forum-selection
provisions and greatly extending the statute of limitations for a
narrowly defined class of claims. Thus, section 354.4 'has a direct
impact upon foreign relations and may well adversely affect the power
of the central government to deal with those problems.' Section 354.4
therefore intrudes on the federal government's exclusive power to
conduct and regulate foreign affairs."
The Armenian National Committee of America decried the ruling.
"This ruling opens the door for foreign governments to try to roll
back the clock on human rights, potentially putting at peril American
grassroots efforts - along the lines of the anti-Apartheid, Darfur
genocide, and Free Tibet movements - that so often start at the state
and local level, sometimes even against opposition at the federal
level, before winning broad acceptance by the American people and the
U.S. government," the committee's executive director, Aram Hamparian,
said in a statement. "Turkey has no right to hold all three branches
of the U.S. government hostage to its irrational and hateful denial
of the Armenian genocide, a crime that has already been broadly
recognized by American civil society and government, once by a U.S.
president, at least twice by the House of Representatives, 42 times by
separate U.S. states, and hundreds of times by municipal governments
in nearly every state of our union."