VAZKEN MOVSESIAN; HARRY ARZOUMANIAN; GARO AYALTIN; MIRAN KHAGERIAN; ARA KHAJERIAN, individually and on behalf of all others similarly situated including thousands of senior citizens, disabled persons, and orphans as well as on behalf of the general public and acting in the public interest v. VICTORIA VERSICHERUNG AG, a German corporation; ERGO VERSICHERUNGSGRUPPE AG, a German corporation, and MUNCHENER RUCKVERSICHERUNGS-GESELLSCHAFT AKTIENGESELLSCHAFT AG, a German corporation
No. 07-56722
United States Court of Appeals for the Ninth Circuit
December 10, 2010
19647
Before: Harry Pregerson, Dorothy W. Nelson and David R. Thompson, Circuit Judges.
D.C. No. CV-03-09407-CAS-JWJ
Neil Michael Soltman, Los Angeles, California, for the defendant/appellant.
ORDER
Judge Pregerson and Judge Nelson vote to grant the petition for rehearing and Judge Thompson votes to deny the petition for rehearing. The petition for rehearing is GRANTED.
The opinion and dissent filed on August 20, 2009, are hereby withdrawn. The opinion and dissent attached to this order are hereby filed.
New petitions for rehearing and rehearing en banc may be filed.
OPINION
PREGERSON, Circuit Judge:
Section 354.4 of the California Code of Civil Procedure extends the statute of limitations until 2010 for claims arising out of life insurance policies issued to “Armenian Genocide victim[s].”
I. Background
In 2000, the California Legislature enacted Senate Bill 1915, which amended California‘s Code of Civil Procedure1
(a) The following definitions govern the construction of this section:
(1) “Armenian Genocide victim” means any person of Armenian or other ancestry living in the Ottoman Empire during the period of 1915 to 1923, inclusive, who died, was deported, or escaped to avoid persecution during that period.
(2) “Insurer” means an insurance provider doing business in the state, or whose contacts in the state satisfy the constitutional requirements for jurisdiction, that sold life, property, liability, health, annuities, dowry, educational, casualty, or any other insurance covering persons or property to persons in Europe or Asia at any time between 1875 and 1923.
(b) Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this state, which court shall be deemed the proper forum for that action until its completion or resolution.
(c) Any action, including any pending action brought by an Armenian Genocide victim or the heir or beneficiary of an Armenian Genocide victim, whether a resident or nonresident of this state, seeking benefits under the insurance policies issued or in effect between 1875 and 1923 shall not be dismissed for failure to comply with the applicable statute of limitation, provided the action is filed on or before December 31, 2010. (d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
In the legislative findings accompanying the statute, the Legislature recognized that:
[D]uring the period from 1915 to 1923, many persons of Armenian ancestry residing in the historic Armenian homeland then situated in the Ottoman Empire were victims of massacre, torture, starvation, death marches, and exile. This period is known as the Armenian Genocide.
Sen. Bill No. 1915 at § 1.
In December 2003, Vazken Movsesian (“Movsesian“) filed this class action against Victoria Versicherung AG (“Victoria“), Ergo Versicherungsgruppe AG (“Ergo“), and Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG (“Munich Re“). Movsesian and his fellow class members are persons of Armenian descent who claim benefits from insurance policies issued by Victoria and Ergo. Munich Re is the parent company of Victoria and Ergo. Movsesian seeks damages from all three companies for breach of written contract, breach of the covenant of good faith and fair dealing,
The district court granted Munich Re‘s motion to dismiss the claims for unjust enrichment and constructive trust, and denied Munich Re‘s motion to dismiss the claims for breach of contract and breach of the covenant of fair dealing. The court held that the class members had standing to bring their claims, and that Munich Re was a proper defendant under
Munich Re filed a motion to certify the district court‘s order for interlocutory appeal, and to stay the action pending appeal. The district court granted the motion, and stayed the case. Within the ten-day window provided by
On appeal, the parties address three issues: first, whether
II. Standard of Review
We review de novo a district court‘s grant of a
III. The Constitutionality of § 354.4 Under the Foreign Affairs Doctrine
This case presents the issue of whether
A. Conflict Preemption
[1] It is well settled that “at some point an exercise of state power that touches on foreign relations must yield to the
Instead, Munich Re points to informal presidential communications as the sole source of a clear, express federal policy against use of the term “Armenian Genocide.” For example, in 2000, House Resolution 596 proposed to recognize the Ottoman Empire‘s atrocities against the Armenians between 1915 and 1923. H. R. Res. 596, 106th Cong. (2000). President Clinton and senior administration officials sent letters to the House, suggesting that Resolution 596 would negatively impact United States interests in the Balkans and Middle East. Letter to the Speaker of the House of Representatives on a Resolution on Armenian Genocide, 3 Pub. Papers 2225-26 (Oct. 19, 2000); H.R. Rep. No. 106-933, at 16-19 (2000). Resolution 596 was never brought to a floor vote.
In 2003, a proposed general resolution “reaffirm[ed] support of the Convention on the Prevention and Punishment of the Crime of Genocide” and used the term “Armenian Genocide.” H.R. Res. 193, 108th Cong. (2003). A State Department official opposed the resolution, arguing that it would
In 2007, the House entertained another resolution that would provide official recognition to an “Armenian Genocide.” House Resolution 106 was nearly indistinguishable from House Resolution 596, discussed above. President Bush opposed Resolution 106, to which he referred as the “Armenian genocide resolution,” on the ground that it would negatively affect the war on terror. Remarks on Intelligence Reform Legislation, 43 Weekly Comp. Pres. Doc. 1320 (Oct. 10, 2007). The House never brought Resolution 106 to the floor for a vote.
[2] Munich Re argues that these communications are sufficient to constitute an express federal policy. They are not. The three cited executive branch communications arguing against recognition of the Armenian Genocide are counterbalanced, if not outweighed, by various statements from the federal executive and legislative branches in favor of such recognition.
Despite its occasional reluctance to officially recognize the Armenian Genocide, the House of Representatives has done so in the past. In 1975, the House observed a day of remembrance for “all victims of genocide, especially those of Armenian ancestry.” H.J. Res. 148, 94th Congress (1975). In 1984, the House similarly recognized “victims of genocide, especially the one and one-half million people of Armenian ancestry.” H.J. Res. 247, 98th Congress (1984).
The Executive Branch has repeatedly used terms virtually indistinguishable from “Armenian Genocide.” In 1998, President Clinton publicly commemorated “the deportations and massacres of a million and a half Armenians in the Ottoman Empire in the years 1915-1923.” 1 Pub. Papers 617 (Apr. 24, 1998). In 1981, President Reagan explicitly stated that “like the genocide of the Armenians before it, and the genocide of the Cambodians, which followed it —and like too many other
The current administration has also at times favored recognition of the Armenian Genocide. In the midst of his campaign for the presidency, then-Senator Obama asserted in a Senate floor statement that “[i]t is imperative that we recognize the horrific acts carried out against the Armenian people as genocide.” See, e.g., 110th Cong. Rec. S3438-01 (Apr. 28, 2008). Since taking office, President Obama has issued additional statements that seem to support recognition of the Armenian Genocide. In 2009, for example, President Obama publicly remembered “the 1.5 million Armenians who were [ ] massacred or marched to their death in the final days of the Ottoman Empire. The Meds Yeghern must live on in our memories, just as it lives on in the hearts of the Armenian people.” See Statement of President Barack Obama on Armenian Remembrance Day, http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Armenian-Remembrance-Day/ (last accessed August 13, 2010). “Meds Yeghern” is the term for “Armenian Genocide” in the Armenian language.
[3] We also note that while some forty states recognize the Armenian Genocide, the federal government has never expressed any opposition to any such recognition. See, e.g.,
[4] 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.”
[5] The Supreme Court has suggested that field and conflict preemption are “complementary,” Garamendi, 539 U.S. at 420 n.11, and that it “would be reasonable” to consider the strength of a state‘s interest to determine “how serious a conflict must be shown before declaring the state law preempted.” Id. at 420. Having determined that there is no clear federal policy with which
[6] California‘s attempt to regulate insurance clearly falls within the realm of traditional state interests. The legislative findings accompanying
B. Preemption By the Claims Agreement and the War Claims Act
[7] In 1922, the United States and Germany entered into an executive agreement establishing a commission to resolve all claims concerning “debts owing to American citizens by the German government or by German nationals.” 42 Stat. 2200 (1922) (the “Claims Agreement“). In 1928, the Settlement of War Claims Act (the “War Claims Act“) provided for payment of Claims Agreement awards. Z & F Assets Realization Corp. v. Hull, 114 F.2d 464, 476 (D.C. Cir. 1940), aff‘d, 311 U.S. 470 (1941). The Claims Agreement and War Claims Act, if applicable, have preemptive effect. See Garamendi, 539 U.S. at 416; Medellin, 552 U.S. at 532.
[8] Munich Re argues that the Claims Agreement and War Claims Act apply to claims against German insurance companies by Armenian Genocide victims. We disagree. The insurance policies were the private property of insured Armenian citizens of the Ottoman Empire, not German debts owing to American citizens.
Munich Re‘s reliance on Deutsch v. Turner, 324 F.3d 692 (9th Cir. 2003), is misplaced. In Deutsch, we invalidated a California statute that allowed World War II slave laborers to bring war-related claims against wartime enemies of the United States. Deutsch, 324 F.3d at 712. We held that California‘s attempt to create a private right of action for war-related injuries intruded upon the federal government‘s exclusive power over matters related to war. Id. at 712-716.
IV. Whether Munich Re Is a Proper Defendant
[9] Munich Re also argues that is it not an “insurer,” as defined in
V. Whether Movsesian Has Standing
[10] Lastly, we agree with the district court that
THOMPSON, Senior Circuit Judge, dissenting:
Contrary to the majority‘s view, I would hold that a clear Presidential foreign policy exists in this case against officially recognizing the “Armenian Genocide.” Over the past decade, three separate House Resolutions have attempted to formally recognize the “Armenian Genocide.” See H.R. Res. 596, 106th Cong. (2000); H.R. Res. 193, 108th Cong. (2003); H.R. Res. 106, 110th Cong. (2007). Each time, however, the Administrations of President Clinton and President Bush took specific actions, both publicly and privately, to oppose those Resolutions1 and to urge that legislative action was not the
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. Accordingly, I dissent. I would find that
More importantly, the same result is mandated under a theory of field preemption. The Supreme Court has characterized the power to deal with foreign affairs as primarily, if not exclusively, vested in the federal government. See, e.g., id. at 413-14; Zschernig v. Miller, 389 U.S. 429, 435-36 (1968); United States v. Pink, 315 U.S. 203, 233 (1942). As a result, the Court has declared state laws to be preempted when they were incompatible with the federal government‘s foreign affairs power, even in the absence of any conflict. See, e.g., Zschernig, 389 U.S. at 432, 440-41 (striking down an Oregon probate law, in the absence of any federal action, because it was an “intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress“); Hines v. Davidowitz, 312 U.S. 52, 62-65 (1941) (invalidating a Pennsylvania statute governing aliens because the field of immigration regulation is occupied exclusively by
The central question under a field preemption analysis is whether, in enacting
In this case, even though
The majority errs in relying on Justice Ginsburg‘s dissent in Garamendi to reach a contrary conclusion. See ante at 19659. The Garamendi majority specifically rejected Justice Ginsburg‘s position that California in that case had broad authority to regulate the insurance industry, noting instead that the challenged statute “effectively single[d] out only policies issued by European companies, in Europe, to European residents, at least 55 years ago.” 539 U.S. at 425-26. Similarly, in this case, California‘s interest is weak because instead of regulating the insurance industry generally,
As applied to this case, there can be no doubt that
Finally, the majority‘s opinion appears to be in conflict with our recent case law on the issue. The majority highlights the fact that in this case there is no executive agreement regarding the use of the term “Armenian Genocide.” See ante at 19656. However, our recent decisions in Deutsch and Von Saher indicate that the preemptive power of federal policy is not derived from the form of the policy statement, but rather from the source of the Executive Branch‘s authority to act. Thus, we have recently stated that “foreign affairs field preemption may occur ‘even in the absence of a treaty or federal statute, because a state may violate the Constitution by establishing its own foreign policy.’ ” Von Saher, 592 F.3d at 964 (quoting Deutsch, 324 F.3d at 709). Applying this principle, the court can hold a state law preempted regardless of “whether the National Government had acted and, if it had, without reference to the degree of any conflict, the principle having been established that the Constitution entrusts foreign policy exclusively to the National Government.” See Garamendi, 539 U.S. at 419 n.11; accord Von Saher, 592 F.3d at 963-64.
Accordingly, I would conclude there is an express Presidential foreign policy, as acquiesced in by Congress, prohibit-