FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 07-56722
the public interest,
Plaintiffs-Appellees, D.C. No.
v. CV-03-09407-
CAS-JWJ
VICTORIA VERSICHERUNG AG, a ORDER AND
German corporation; ERGO OPINION
VERSICHERUNGSGRUPPE AG, a
German corporation,
Defendants,
and
MUNCHENER RUCKVERSICHERUNGS-
GESELLSCHAFT AKTIENGESELLSCHAFT
AG, a German corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
December 8, 2008—Pasadena, California
Filed December 10, 2010
19647
19648 MOVSESIAN v. VICTORIA VERSICHERUNG AG
Before: Harry Pregerson, Dorothy W. Nelson and
David R. Thompson, Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Thompson
19650 MOVSESIAN v. VICTORIA VERSICHERUNG AG
COUNSEL
Neil Michael Soltman, Los Angeles, California, for the defen-
dant/appellant.
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19651
Brian S. Kabateck, Los Angeles, California, for the plain-
tiffs/appellees.
ORDER
Judge Pregerson and Judge Nelson vote to grant the peti-
tion for rehearing and Judge Thompson votes to deny the peti-
tion 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hereby withdrawn.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].” Cal. Civ. Proc. Code § 354.4(c) (West 2006). The
primary issue in this appeal is whether § 354.4 conflicts with
a clear, express federal executive policy. We conclude that
there is no express federal policy forbidding states to use the
term “Armenian Genocide,” and we affirm the district court.
I. Background
In 2000, the California Legislature enacted Senate Bill
1915, which amended California’s Code of Civil Procedure1
1
Hereinafter, all statutory references are to the California Code of Civil
Procedure, unless otherwise indicated.
19652 MOVSESIAN v. VICTORIA VERSICHERUNG AG
to provide California courts with jurisdiction over certain
classes of claims arising out of insurance policies held by
“Armenian Genocide vitcim[s].” Sen. Bill No. 1915 (1999-
2000 Reg. Sess.), 2000 Cal. Legis. Serv. 543 (West 2000),
codified at Cal. Civ. Proc. Code § 354.4. The Bill also
amended the Code to extend the statute of limitations for such
claims until December 31, 2010. Id. Section 354.4, in its
entirety, provides:
(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 perse-
cution 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 jurisdic-
tion, that sold life, property, liability, health, annui-
ties, 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 pol-
icy 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 com-
petent jurisdiction in this state, which court shall be
deemed the proper forum for that action until its
completion or resolution.
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19653
(c) Any action, including any pending action brought
by an Armenian Genocide victim or the heir or bene-
ficiary 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 limi-
tation, 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 provi-
sions or applications that can be given effect without
the invalid provision or application.
In the legislative findings accompanying the statute, the Leg-
islature recognized that:
[D]uring the period from 1915 to 1923, many per-
sons 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 Aktiengesell-
schaft 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,
19654 MOVSESIAN v. VICTORIA VERSICHERUNG AG
unjust enrichment, and other related claims. Munich Re filed
a Rule 12(b)(6) motion to dismiss the claims, arguing that the
class members lacked standing to bring claims under § 354.4,
and contending that it was not a proper defendant under
§ 354.4. Munich Re also challenged the constitutionality of
§ 354.4, on the grounds that it violated the due process clause
of the United States Constitution and was preempted under
the foreign affairs doctrine.
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
§ 354.4. The court rejected Munich Re’s due process chal-
lenge, and held that § 354.4 was not preempted under the for-
eign affairs doctrine.
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 28 U.S.C.
§ 1292(b), Munich Re petitioned this court for permission to
pursue an interlocutory appeal, which we granted.2
On appeal, the parties address three issues: first, whether
§ 354.4 is preempted under the foreign affairs doctrine; sec-
ond, whether Munich Re is a proper defendant; and third,
2
At oral argument, Munich Re asked us to take judicial notice of a
December 4, 2008 letter from Nabi Sensoy, the Turkish Republic’s
Ambassador to the United States, to Molly Dwyer, Clerk of the United
States Court of Appeals for the Ninth Circuit (December 4, 2008). We
decline to take judicial notice of the letter because the letter was submitted
after — and apparently in response to — the district court’s decision. See,
e.g., Ctr. for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455
F.3d 910, 918 n.3 (9th Cir. 2006) (declining to take judicial notice of doc-
uments issued after the district court’s decision).
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19655
whether the Plaintiff-Appellees have standing to bring these
claims.3 We address each issue in turn.
II. Standard of Review
We review de novo a district court’s grant of a Rule
12(b)(6) motion to dismiss. Edwards v. Marin Park, Inc., 356
F.3d 1058, 1061 (9th Cir. 2004). “When ruling on a motion
to dismiss, we accept all factual allegations in the complaint
as true and construe the pleadings in the light most favorable
to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005).
III. The Constitutionality of § 354.4 Under the Foreign
Affairs Doctrine
This case presents the issue of whether § 354.4 of the Cali-
fornia Code of Civil Procedure is preempted under the foreign
affairs doctrine. Munich Re contends that § 354.4 is pre-
empted in two ways: first, that it conflicts with the Executive
Branch’s policy prohibiting legislative recognition of an “Ar-
menian Genocide”; and second, that it is preempted by the
Claims Agreement of 1922 (the “Claims Agreement”) and the
War Claims Act of 1928 (the “War Claims Act”). We con-
clude that there is no clear federal policy with respect to refer-
ences to the Armenian Genocide, and, therefore, that there can
be no conflict. We also conclude that neither the Claims
Agreement nor the War Claims Act, which resolved World
War I-related claims between the United States and Germany,
has any application to life insurance policies issued to citizens
of the Ottoman Empire between 1915 and 1923.
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
3
Neither party addresses the due process issue on appeal.
19656 MOVSESIAN v. VICTORIA VERSICHERUNG AG
National Government’s policy.” Am. Ins. Assoc. v. Gara-
mendi, 539 U.S. 396, 413 (2003). “Nor is there any question
generally that there is executive authority to decide what that
policy should be.” Id. at 414. However, not every executive
action or pronouncement constitutes a proper invocation of
that potentially preemptive policy-making power. See Mede-
llin v. Texas, 552 U.S 491, 531-32 (2008) (limiting preemp-
tive effect of informal presidential communications where
Congress has not implicitly approved such authority). Gara-
mendi established that executive agreements do carry policy-
making force, at least where Congress has historically acqui-
esced to such executive practices. See Garamendi, 539 U.S.
at 415; Medellin, 552 U.S 491 at 531-32. In Garamendi, the
Court found that several executive agreements, coupled with
statements from executive branch officials, constituted an
express federal policy. Garamendi, 539 U.S. at 415. Here, in
contrast, there is no executive agreement regarding use of the
term “Armenian Genocide.”
Instead, Munich Re points to informal presidential commu-
nications 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). Res-
olution 596 was never brought to a floor vote.
In 2003, a proposed general resolution “reaffirm[ed] sup-
port of the Convention on the Prevention and Punishment of
the Crime of Genocide” and used the term “Armenian Geno-
cide.” H.R. Res. 193, 108th Cong. (2003). A State Depart-
ment official opposed the resolution, arguing that it would
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19657
hamper peace efforts in the Caucasus. H.R. Rep. No. 108-130,
at 5-6 (2003). The resolution never reached the House floor.
In 2007, the House entertained another resolution that
would provide official recognition to an “Armenian Geno-
cide.” House Resolution 106 was nearly indistinguishable
from House Resolution 596, discussed above. President Bush
opposed Resolution 106, to which he referred as the “Arme-
nian genocide resolution,” on the ground that it would nega-
tively 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 suffi-
cient 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 execu-
tive 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 remem-
brance for “all victims of genocide, especially those of Arme-
nian ancestry.” H.J. Res. 148, 94th Congress (1975). In 1984,
the House similarly recognized “victims of genocide, espe-
cially the one and one-half million people of Armenian ances-
try.” H.J. Res. 247, 98th Congress (1984).
The Executive Branch has repeatedly used terms virtually
indistinguishable from “Armenian Genocide.” In 1998, Presi-
dent 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
19658 MOVSESIAN v. VICTORIA VERSICHERUNG AG
persecutions of too many other people— the lessons of the
Holocaust must never be forgotten.” Proclamation 4838 (Apr.
22, 1981) available at http://www.reagan.utexas.edu/archives/
speeches/1981/42281c.htm (emphasis added).
The current administration has also at times favored recog-
nition of the Armenian Genocide. In the midst of his cam-
paign for the presidency, then-Senator Obama asserted in a
Senate floor statement that “[i]t is imperative that we recog-
nize 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 addi-
tional 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 Arme-
nian 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.,
Mich. Comp. Laws § 435.281 (“Michigan Days of Remem-
brance of Armenian Genocide”); 1990 Okla. Sess. Law Serv.
Sen. Conc. Res. 68 (West) (“Armenian Remembrance Day”);
Proclamation of Governor Jim Gibbons Declaring April 24,
2010 as “Armenian Genocide Remembrance Day”,
http://gov.state.nv.us/PROCs/2010/2010-04-24_Armenian_
genocide_remembrance.pdf (last visited August 13, 2010);
Proclamation of Governor John Hoeven Declaring April 24,
2007 “Armenian Genocide Remembrance Day”,
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19659
http://governor.nd.gov/proc/docs/2007/04/20070424a.pdf (last
visited August 20, 2010).
[4] Considering the number of expressions of federal exec-
utive 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 con-
flict 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 con-
flict must be shown before declaring the state law preempt-
ed.” Id. at 420. Having determined that there is no clear
federal policy with which § 354.4 could conflict, we briefly
discuss the possibility of field preemption. Under the Court’s
suggested approach, field preemption would only apply if a
“State were simply to take a position on a matter of foreign
policy with no serious claim to be addressing a traditional
state responsibility.” Id. at 420 n.11. That is not the case here.
[6] California’s attempt to regulate insurance clearly falls
within the realm of traditional state interests. The legislative
findings accompanying California Code of Civil Procedure
§ 354.4 recognize that thousands of California residents and
citizens have often been deprived of their entitlement to bene-
fits under certain insurance policies. S. 1915, 1999-2000 Reg.
Sess. (Cal. 2000) at § 1(b). The Supreme Court has recog-
nized that California has “broad authority to regulate the
insurance industry.” Garamendi, 539 U.S. at 434 n.1 (Gins-
burg, J. dissenting) (citing Western & Southern Life Ins. Co.
v. State Bd. of Equalization of Cal., 451 U.S. 648, 653-655
(1981)). California has not exceeded that authority merely by
“assigning special significance to an insurer’s treatment aris-
ing out of a[ ] [particular] era . . . .” Id. California’s interest
in ensuring that its citizens are fairly treated by insurance
19660 MOVSESIAN v. VICTORIA VERSICHERUNG AG
companies over which the State exercises jurisdiction is
hardly a superficial one. Furthermore, Section 354.4’s regula-
tion of the insurance industry has, at most, an incidental effect
on foreign affairs, particularly considering that thirty-nine
other states already officially recognize the Armenian Geno-
cide. See Garamendi, 539 U.S. at 418-42.
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 pay-
ment 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 compa-
nies by Armenian Genocide victims. We disagree. The insur-
ance 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 Califor-
nia’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.
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19661
Here, in contrast, § 354.4 does not implicate the govern-
ment’s exclusive power over war. Section 354.4 covers pri-
vate insurance claims, not wartime injuries. See Alperin v.
Vatican Bank, 410 F.3d 532, 548 (9th Cir. 2005) (distinguish-
ing “garden-variety” private property interests from war inju-
ries). Furthermore, as the district court noted, the Claims
Agreement was signed before the end of the Armenian Geno-
cide. According to the California legislature, the Armenian
Genocide ended in 1923, a year after the Claim Act was
signed at Berlin. We reject Munich Re’s assertion that the
Claims Agreement, which resolved claims from the concluded
fighting in World War I, has any bearing on life insurance
policies issued to citizens of the Ottoman Empire. The Claims
Agreement and War Claims act therefore do not preempt
§ 354.4.
IV. Whether Munich Re Is a Proper Defendant
[9] Munich Re also argues that is it not an “insurer,” as
defined in § 354.4(a)(2), and therefore is not a proper defen-
dant. Specifically, Munich Re contends that it did not issue
insurance policies in Europe or Asia at any time between
1875 and 1923. However, Munich Re’s subsidiaries, Victoria
and Ergo, did issue such policies. Contrary to Munich Re’s
interpretation, § 354.4 does not define “insurer” for purposes
of limiting the class of potential defendants, but rather to limit
the types of claims that may be brought. Cal. Civ. Proc. Code
§ 354.4(b). Accordingly, Munich Re is a proper defendant.
V. Whether Movsesian Has Standing
[10] Lastly, we agree with the district court that § 354.4(c)
confers standing on Movsesian. We reject Munich Re’s asser-
tion that § 354.4(c)’s reference to Armenian genocide victims,
their heirs, and beneficiaries is “all-encompassing.” The broad
language of § 354.4(c) clearly applies to “any action” seeking
benefits under the insurance policies, so long as the action is
filed before December 31, 2010.
19662 MOVSESIAN v. VICTORIA VERSICHERUNG AG
VI. Conclusion
California Code of Civil Procedure § 354.4 is not pre-
empted by federal law. There is no clearly established,
express federal policy forbidding state references to the
Armenian Genocide. California’s effort to regulate the insur-
ance industry is well within the realm of its traditional inter-
ests. Nothing in § 354.4(a)(2) or § 354.4(b) operates to limit
the class of proper defendants, nor does § 354.4(c) limit
standing to any particular group. Accordingly, the district
court’s order denying the Rule 12(b)(6) motion to dismiss is
AFFIRMED.
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
1
See, e.g., Letter to the Speaker of the House of Representatives on a
Resolution on Armenian Genocide, 3 Pub. Papers 2225-26 (Oct. 19, 2000)
(noting that H.R. Res. 596 could have “far-reaching negative conse-
quences for the United States” and might “undermine efforts to encourage
improved relations between Armenia and Turkey”); H.R. Rep. No. 108-
130, at 5-6 (2003) (noting that H.R. Res. 193 “could complicate our efforts
to bring peace and stability to the Caucasus and hamper ongoing attempts
to bring about Turkish-Armenian reconciliation”); Press Release, White
House Office of the Press Secretary, President Bush Discusses Foreign
Intelligence Surveillance Act Legislation (Oct. 10, 2007) (noting that H.R.
Res. 106 “would do great harm to our relations with a key ally in NATO
and in the global war on terror”).
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19663
preferred solution.2 And each time, as a result, the Resolutions
concerned were never brought to a vote on the floor.
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 con-
clude that there is an express foreign policy prohibiting legis-
lative recognition of the “Armenian Genocide,” as
pronounced by the Executive Branch and as acquiesced in by
Congress. Accordingly, I dissent. I would find that California
Code of Civil Procedure § 354.4 is preempted because it
clearly conflicts with this express federal policy. See Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 420-25 (2003).
More importantly, the same result is mandated under a the-
ory 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 Con-
gress”); 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
2
See, e.g., Press Release, White House Office of the Press Secretary,
President Bush Discusses Foreign Intelligence Surveillance Act Legisla-
tion (Oct. 10, 2007) (urging opposition to H.R. Res. 106 because it was
“not the right response to these historic mass killings”); Press Release,
White House Office of the Press Secretary, Press Briefing by Dana Perino
(Oct. 11, 2007) (“The President believes that the proper way to address
this issue and express our feelings about it is through the presidential mes-
sage and not through legislation.”).
19664 MOVSESIAN v. VICTORIA VERSICHERUNG AG
federal law). This court has done the same on occasion, also
in the absence of any apparent conflict. See, e.g., Von Saher
v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,
965-68 (9th Cir. 2010) (finding preempted California’s statute
dealing with recovery of art stolen by the Nazis because the
statute intruded on the federal government’s power to make
and resolve war); Deutsch v. Turner Corp., 324 F.3d 692,
715-16 (9th Cir. 2003) (finding unconstitutional California’s
statute providing recovery to World War II slave laborers
because the statute intruded on the federal government’s
power to resolve war claims).
The central question under a field preemption analysis is
whether, in enacting § 354.4, California has addressed a “tra-
ditional state responsibility,” Garamendi, 539 U.S. at 419
n.11, or whether it has “infringed on a foreign affairs power
reserved by the Constitution exclusively to the national gov-
ernment.” Von Saher, 592 F.3d at 964. Courts have consis-
tently looked past “superficial” interests to ascertain true
legislative intent. See, e.g., Garamendi, 539 U.S. at 425-26
(rejecting purported state interest in regulating insurance busi-
ness and blue sky laws); Zschernig, 389 U.S. at 437-41
(rejecting purported state interest in regulating descent of
property); Von Saher, 592 F.3d at 964-65 (rejecting purported
state interest in establishing a statute of limitations for actions
seeking the return of stolen property); Deutsch, 324 F.3d at
707-08 (rejecting purported state interest in procedural rules).
In this case, even though § 354.4 purports to regulate the
insurance industry, its real purpose is to provide relief to the
victims of “Armenian Genocide.” See Sen. Jud. Comm.,
Analysis of S.B. 1915, 1999-2000 Reg. Sess. 5-6 (May 9,
2000). By its terms, only “Armenian Genocide” victims or
their heirs and beneficiaries can bring a claim under the stat-
ute. CAL. CIV. PROC. CODE § 354.4(b). “Armenian Genocide
victim,” in turn, is defined as “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
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19665
escaped to avoid persecution during that period.” Id.
§ 354.4(a). In short, § 354.4 is California’s attempt to provide
relief to a specific category of claimants who were aggrieved
by a foreign nation, not a general attempt to regulate the
insurance industry. While this may be a commendable goal,
it is not an area of “traditional state responsibility,” and the
statute is therefore subject to a field preemption analysis. See
Garamendi, 539 U.S. at 419 n.11, 425-27; Von Saher, 592
F.3d at 964-65.
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 poli-
cies issued by European companies, in Europe, to European
residents, at least 55 years ago.” 539 U.S. at 425-26. Simi-
larly, in this case, California’s interest is weak because
instead of regulating the insurance industry generally, § 354.4
effectively singles out only policies issued in Europe or Asia,
to any person of Armenian ancestry, in the Ottoman Empire,
at least 87 years ago.
As applied to this case, there can be no doubt that § 354.4
is preempted. The Constitution vests with the President the
power to make policy determinations regarding national
security, wars in progress, and diplomatic relations with for-
eign nations. See U.S. Const. art. II, § 2, cl. 1; id. § 2, cl. 2;
id. § 3; see also Garamendi, 539 U.S. at 414-15; Deutsch, 324
F.3d at 708-09. The Constitution also delegates to the Presi-
dent the prerogative “to speak for the Nation with one voice
in dealing with other governments.” Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 381 (2000). When it comes to
interactions with foreign nations, “state lines disappear.”
United States v. Belmont, 301 U.S. 324, 331 (1937). By
declaring that the “Armenian Genocide” has occurred and by
providing a right of action for its victims, California is intrud-
19666 MOVSESIAN v. VICTORIA VERSICHERUNG AG
ing into the field of foreign relations by passing judgment on
another nation when the President has expressly decided to
pursue an alternate way of addressing the issue.3 California’s
approach, thus, “undercuts the President’s diplomatic discre-
tion and the choice he has made exercising it.” See Gara-
mendi, 539 U.S. at 423-24.
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 pre-
emption may occur ‘even in the absence of a treaty or federal
statute, because a state may violate the Constitution by estab-
lishing 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 Gara-
mendi, 539 U.S. at 419 n.11; accord Von Saher, 592 F.3d at
963-64.
Accordingly, I would conclude there is an express Presi-
dential foreign policy, as acquiesced in by Congress, prohibit-
3
The President’s concern that a formal recognition of the “Armenian
Genocide” might have negative consequences on our relations with Tur-
key is very real. For example, when the French National Assembly voted
in favor of a bill that would criminalize denial of the events of 1915, the
Turkish military cut all contacts with the French military and terminated
defense contracts under negotiation. See Letter from Robert M. Gates,
Sec’y of Defense, and Condoleeza Rice, Sec’y of State, to Nancy M.
Pelosi, Speaker of the House of Representatives (Mar. 7, 2001).
MOVSESIAN v. VICTORIA VERSICHERUNG AG 19667
ing legislative recognition of the “Armenian Genocide.” By
formally recognizing the “Armenian Genocide,” § 354.4
directly conflicts with this foreign policy. Moreover, far from
concerning an area of traditional state interest, § 354.4 instead
infringes upon the federal government’s prerogative to con-
duct foreign affairs. Therefore, I respectfully dissent and
would reverse the district court’s order denying the Rule
12(b)(6) motion to dismiss.