(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.