U.S. Appeals Court Makes a Wrong Decision on Armenian Demands
Posted on August. 16. 2019
The United States Court of Appeals for the Ninth Circuit made a decision on August 8 to deny the appeal of two lawsuits brought by several Armenian-Americans demanding compensation from the Republic of Turkey and two of its banks for confiscating their properties shortly after the Armenian Genocide.
The first lawsuit was filed in December 2010 by Alex Bakalian, Anais Haroutunian, and Rita Mahdessian seeking $65 million from the Central Bank of the Republic of Turkey, and Ziraat Bankasi. The second lawsuit was filed by David Davoyan (administrator of the Estate of Garbis Tavit Davoyan) and Hrayr Turabian against the Republic of Turkey, the Central Bank of Turkey, and Ziraat Bankasi.
The U.S. Court of Appeals confirmed the 2013 decision of Judge Dolly Gee who dismissed the two lawsuits declaring that “under the political question doctrine which says certain questions—in this case, determining whether Turkey’s actions were genocide—should be handled by the executive branch, not the courts,” according to the Courthouse News Service.
The Court of Appeals, however, rejected the appeal for a different reason, claiming that the two Armenian lawsuits are time-barred. In 2006, a California statute had set the deadline of 2016 for such lawsuits stating that: “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.”
Unfortunately, in 2012, Ninth Circuit Judge Susan P. Graber, in the case of Movsesian vs. Victoria Versicherung AG, invalidated the California statute extending the time for bringing certain insurance claims based on the Armenian Genocide. Judge Graber wrote that “the statute was preempted under the foreign affairs doctrine,” according to the Metropolitan News-Enterprise.
The August 8 decision by the Court of Appeals is contradictory in the sense that, while Judge Andrew Hurwitz (who wrote the Appeals Court decision) acknowledged the Armenian Genocide, he ignored the fact that genocides have no statute of limitations, therefore regardless of how much time has elapsed, genocide-related lawsuits could not be dismissed on that basis.
Here is what Judge Hurwitz wrote in the decision of the Court of Appeals: “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 another section of the Appeals Court decision, under the subtitle of “Facts,” Judge Hurwitz added the following comments on the Armenian Genocide: “During World War I, the Ottoman Empire began forcibly relocating its Armenian subjects away from population centers and into the desert, causing the deaths of over a million ethnic Armenians. The Empire confiscated the real property left behind by the victims of the Armenian Genocide.”
Judge Hurwitz agreed with the plaintiffs’ assertions in the lawsuits. He wrote: “We assume for purposes of our accrual analysis the truth of the plaintiffs’ allegations that either the Ottoman Empire illegally seized the property of the plaintiffs’ predecessors, or the Empire and the Banks placed the property in trust under Turkish law but later illegally refused to return it. If the initial expropriation was wrongful, the plaintiffs’ claims accrued by 1923. If the property was placed in trust, the plaintiffs acknowledge that ‘laws passed in 1928 and 1929 formally ended Turkey’s disingenuous attempt at the restitution of immovable property to its rightful Armenian owners.’ Thus, the plaintiffs’ predecessors should have known well more than ten years ago that Turkey did not intend to return their property.”
Judge Hurwitz complained that the lawsuits were filed decades after the Armenian Genocide which does not make them timely. “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.”
The attorneys for the Armenian-American plaintiffs reacted with anger at the Appeals Court decision. Kathryn Lee Boyd of the law firm Pierce Bainbridge Beck Price & Hecht—representing three Armenian-Americans whose ancestors owned 122.5 acres of land that was confiscated—told the Metropolitan News-Enterprise: “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.”
Mark Geragos of the law firm of Geragos & Geragos, who represents the second group of plaintiffs, was quoted by the Metropolitan News-Enterprise: “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.”
The Court of Appeals took the easy way out by basing its decision on the unconstitutionality of the California statute, which had given the plaintiffs more time to file their lawsuits. If the Court of Appeals had based its decision on the occurrence of genocide, the issue of time-limitation would have been irrelevant and would have ruled that the Turkish government and its two banks are liable for confiscating the Armenian properties.
I hope the attorneys for the Armenian-American plaintiffs will appeal to the U.S. Supreme Court to reverse this unjust decision.