Ninth Circuit: Claims Based on Armenian Genocide Not Revived by Statute

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LOS ANGELES (Metropolitan News-Enterprise) — Although the United States has never recognized that the Armenian Genocide occurred, the Ninth U.S. Circuit Court of Appeals has found that it did take place, in 1915-23, but yesterday held that two 2010 lawsuits based on confiscation of property by the Ottoman Empire, now Turkey, are time-barred, despite a California statute of limitation setting a 2016 deadline for court actions.

The opinion, by Circuit Judge Andrew D. Hurwitz, affirms the dismissal of suits brought by two sets of descendants of genocide victims against two Turkish national banks, seeking imposition of constructive trusts on real property that was seized and an accounting in connected with looted assets.

Also sued was the Republic of Turkey, but only the dismissal as to the banks was appealed.

That dismissal occurred in 2013, with District Court Judge Dolly Gee of the Central District of California declaring that the question of whether the genocide took place was a non-justiciable “inherently political question.” She did not determine whether the actions were timely.

Attorneys’ React

The decision on August 7 evoked angered responses from attorneys for the plaintiffs.

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Kathryn Lee Boyd of the downtown Los Angeles firm of Pierce Bainbridge Beck Price & Hecht — representing three persons whose ancestors allegedly owned 122.5 acres of land that was confiscated—commented:

“It is a sad day for Armenian Americans when a U.S. court has stripped them of all access to justice, refused to consider or even recognize the extenuating circumstances of the Armenian Genocide, and left them with no remedy against Turkey, which continues to hold and use their stolen property with impunity.”

She said that the Ninth Circuit’s recognition that the holocaust did take place “is of significance” but remarked that the court failed to consider that the official nonrecognition “would be an extenuating circumstance and tolling event under federal and state law.”

Mark Geragos of the firm of Geragos & Geragos, also in downtown Los Angeles—who represents the other set of plaintiffs—asserted:

“The Turkish Lobby has bought and paid for the United States Executive Branch and State Department for decades. Sadly the Judicial branch is left with very few options to remedy the blatant mendacity of the Turkish lobbying machine.”

Turkey insists the genocide did not occur.

Hurwitz’s Opinion

Hurwitz said it did. He wrote:

“From 1915 to 1923. in what is often referred to as the Armenian Genocide, the Ottoman Empire massacred, forcibly expelled, or marched to death 1.5 million of its Armenian citizens, seizing the property of the dead and deported. In 2010, the plaintiffs in these consolidated actions, United States residents descended from victims of The Genocide, sued the Republic of Turkey and two Turkish national banks, seeking compensation for property taken from their ancestors almost a century ago.”

In 2006, the California Legislature enacted S.B. 1524, authored by then-Sen. Jackie Speier (now a member of the U.S. House of Representatives). Codified as Code of Civil Procedure §354.45, it provides:

“Any action, including any pending action brought by an Armenian Genocide victim, or the heir or beneficiary of an Armenian Genocide victim, who resides in this state, seeking payment for, or the return of, deposited assets, or the return of looted assets, shall not be dismissed for failure to comply with the applicable statute of limitation, if the action is filed on or before December 31, 2016.”

The plaintiffs proceeded to sue in 2010 based on that legislation.

2012 Decision

Hurwitz pointed to the Ninth Circuit’s 2012 decision in Movsesian v. Victoria Versicherung AG which invalidated a 2000 statute extending the time for bringing certain insurance claims based on the Armenian Genocide. In an opinion for the court, sitting en banc, Circuit Judge Susan P. Graber said the statute was preempted under the foreign affairs doctrine.

In the opinion filed yesterday, Hurwitz wrote:

“Our decision in Movsesian, issued while this litigation was ongoing, foreordained the ultimate outcome of the plaintiffs’ claims: they are time-barred. A ruling on these complex jurisdictional issues would thus in effect be an advisory opinion, because this case plainly cannot go forward even if there is jurisdiction.”

There was, he proclaimed, no equitable tolling, explaining:

“We have no doubt that The survivors of the Ottoman Empire’s atrocities experienced enormous hardships after The seizure of their property. Indeed, we take as true the allegations in the operative complaints that it “was impossible for Plaintiffs’ predecessors to seek compensation for their stolen property or focus on anything but rebuilding their lives.” But. these suits are brought not by the victims of the Armenian Genocide, but rather by residents of the United States long removed from its carnage, many of whose predecessors relocated to this country decades ago. And the current plaintiffs do not allege any attempts to pursue these claims judicially prior to 2010.”

Hurwitz noted that the Foreign Sovereign Immunities Act (“FSIA”) became law in 1976. It sets forth exceptions to state immunity establishes procedures for suing a foreign government.

He wrote:

“It is possible that the plaintiffs believed that any suit against The Republic of Turkey or its instrumentalities would have been futile until 1976….But, even if we assume that the plaintiffs’ claims were equitably tolled until 1976, the plaintiffs do not explain why they should be tolled a further twenty-four years. Thus, even under the most charitable of assumptions, as the California legislature expressly recognized in passing § 354.45, the plaintiffs’ claims against the Banks are time-barred.”

The case is Bakalian v. Central Bank of Turkey, 13-55804.

Neil Michael Soltman of Mayer Brown LLP, who argued for the banks, did not respond to a request for comment

 

 

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