Plaintiffs-Appellants in Rubin v. Iran File Reply Brief in First Circuit

"The Plaintiffs successfully obtained judgment against Iran and seek to execute that judgment—pursuant to federal law—against Iranian assets held by the Trustees-Appellees (“Garnishees”). The Garnishees, wealthy museums represented by aristocratic law firms, have sought to stop the Plaintiffs, claiming that the exercise of federal law is somehow unfair to them—that they are above the law." So begins the reply brief filed on behalf of Jenny Rubin and others affected by a 1997 terrorist attack that held Iran liable for damages.  The appellees in the case of Rubin v. Iran are the museums at Harvard and the Boston Museum of Fine Arts (MFA), which house Persian artifacts that are sought after by the plaintiffs-appellants to satisfy a money judgment they were awarded by a federal court against Iran.

The Rubin plaintiffs-appellants appealed to the U.S. First Circuit in March 2012 after losing their case in federal district court.  The museums filed appellate briefs on May 31, 2012, and the United States government submitted a friend of the court brief in June 2012 in support.  Now the Rubin plaintiffs-appellants have entered their response.

The litigation has become complicated, involving technical legal issues and multiple courts.  Highlights of the arguments put forward by the plaintiffs-appellants follow.

First, the plaintiffs-appellants argue that there is a legal basis to award them the artifacts in the collections of the museums under the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1610(g) even if Iran does not own the property.  The museums, they say, have waived their right to challenge the conclusion that plaintiffs-appellants can execute judgment.

Second, the plaintiffs-appellants charge that the museums' "failure to engage in due diligence" cause the institutions to "suffer at their own hands."  That is because, as the plaintiffs-appellants write, the museums "are not 'innocent third parties' (Gov’t 12; Harvard 26, 63; MFA 60) or 'innocent property owners' (Gov’t 17). They are, in some cases, successors in interest to thieves. In other cases, the provenance of their artifacts is simply unknown . . . . Garnishees did no due diligence (or have deliberately hidden the results of their due diligence) in reliance on a three-year statute of limitations and a three-year rule for adverse possession. (Harvard 47, 49-51). Now they have discovered that the state statute of limitations and adverse possession rules are not ironclad and are subject to federal preemption and beg this court for cover."  As a result, the Rubin plaintiffs-appellants say that this "decision not to insist upon documentation—or to ignore and discard the documentation that they received—opens them to recapture by the property’s rightful owner or, as in this case, another party that claims a primary statutory interest." (footnote omitted)

Third, the First Circuit Court should wait to issue a decision until the Second Circuit Court rules on other cases that involve the FSIA and the Terrorism Risk Insurance Act (TRIA), two laws applicable to the Rubin v. Iran case.  The plaintiffs-appellants argue that "[t]he cases squarely present before the Second Circuit the scope of TRIA and FSIA without all of the extraneous complications in [Rubin v. Iran] pertaining to factual questions about the provenance of the Property, the question of whether the Property are rightly considered 'blocked assets' for purposes of TRIA, and the proper interpretation of Iranian domestic law."

Fourth, the Rubin plaintiffs-appellants contend that their case can be resolved in their favor under either FSIA or TRIA: "Plaintiffs request that this Court either resolve this dispute pursuant to [FSIA] §1610(g) or remand for further proceedings under §1610(g). If this Court chooses not to do so, it should grant Plaintiffs the relief requested pursuant to TRIA."

Fifth, the Rubin plaintiffs-appellants say that if the First Circuit decides the case on the basis of TRIA, then the museums hold the burden of proof regarding ownership of the artifacts in their possession, not the plaintiffs-appellants.  They write in their brief that the museums "have argued repeatedly that Plaintiffs have the burden of proving that Iran owns the assets at issue in this litigation and that Plaintiffs have not met that burden. (Harvard 21, 31, 41-46; MFA 12-14, 25-35). They ignore that the reason that conclusive evidence is lacking is because Garnishees cannot document the provenance of their artifacts."  The plaintiffs-appellants submit that they have presented evidence of the artifacts "have presented adequate evidence showing where the Property originated, approximately when it was taken from those locations, and the long history of pillaging that occurred in those locations. Plaintiffs have likewise presented adequate evidence showing—at very least—that the Iranian government retains title or a right to immediate possession of all artifacts that it has not gifted or sold to others."

Finally, the plaintiffs-appellants criticize the museums' argument that TRIA would prompt "an unconstitutional taking of private property."  They write, "Their arguments are frivolous."

The case will continue to move forward in the coming weeks.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Contact: www.culturalheritagelawyer.com