A federal appeals court has ruled that plaintiffs injured in a 1997 Hamas terrorist attack in Jerusalem can’t attach Iranian antiquities at Boston-area museums to fulfill a judgment award against the Republic of Iran.
On February 27, the U.S. Court of Appeals for the First Circuit affirmed a ruling by George O’Toole Jr. of the District of Massachusetts dissolving attachments of the property.
Jenny Rubin and other plaintiffs sought to attach Iranian antiquities from Boston’s Museum of Fine Arts and several Harvard University museums.
The First Circuit held that the antiquities are not "blocked assets" — assets seized or frozen by the United States as part of a trade sanction, under the Terrorism Risk Insurance Act of 2002. The court also held that because Iran never claimed to own the museum pieces, they couldn’t be "contested" and ultimately attached under Treasury Office of Foreign Assets Control regulations.
The case stemmed from the U.S. District Court for the District of Columbia, which found "clear and convincing evidence" in a 2003 ruling that Iran and other defendants gave terrorist training and other assistance to the Hamas terrorists behind the bombing.
Iran has not honored that judgment, so the judgment creditors filed a motion for attachment by trustee process in federal court in Massachusetts.
In September 2011, O’Toole held that the plaintiffs did not prove that any item at the museums was property of the Islamic Republic of Iran. He also held that Iranian law does not "vest ownership of the antiquities at issue with the government of Iran."
Senio r Judge Norman Stahl wrote the opinion in Rubin v. Harvard University, joined by Judge Jeffrey Howard and Senior Judge Kermit Lipez.
Stahl wrote that the First Circuit deferred to the Office of Foreign Assets Control’s "reasonable position" that an asset can be contested "only if Iran itself has claimed an interest in the asset."
"Iran has never made such a claim with regard to the antiquities in the Museums’ possession," Stahl wrote.
Even if the antiquities qualify as "assets of" Iran under the 2002 terrorism law, a 1981 executive order by President Carter would have unblocked them, he wrote. The executive order followed the 1981 Algiers Accords, through which the United States and Iran resolved the crisis stemming from 52 Americans being held hostage for 444 days in Iran. The order unblocked most Iranian assets in the United States at the time.
"Because the plaintiffs have relied on no other authority to support their claim that the antiquities are ‘blocked’ within the meaning of [the Terrorism Risk Insurance Act], we conclude that the antiquities are not attachable under that statute," Stahl wrote.
Meir Katz, of counsel to Brooklyn, N.Y.-based Berkman Law Office, who argued for the plaintiffs, referred inquiries to his colleague Robert Tolchin.
"It’s very unfortunate that the court has found a technicality rather than reaching the merits and truly deciding the issue," Tolchin said. "The court found a technicality [prevented it] from making the victims of heinous terrorism from making a recovery."
Boston-based Looney & Grossman also represented the plaintiffs.
The Harvard defendants’ lawyer, Paul Wolfson, a Washington partner at Wilmer Cutler Pickering Hale and Dorr, declined to comment. The Harvard defendants did not respond.
The Museum of Fine Arts’ lawyer, Simon Frankel, a San Francisco partner at Washington-based Covington & Burling, deferred to a museum statement.
In a statement issued through its lawyers, the Museum of Fine Arts said most of the objects in its collection from what is now Iran were excavated during official expeditions in the 1930s: "Although sympathetic to the plaintiffs, the MFA affirms that these objects are the property of the Museum and is pleased that the First Circuit has upheld this ruling."
Sherin and Lodgen of Boston also represented the museum.