On December 4, U.S. citizens seeking to attach Iranian antiquities at Boston-area museums to fulfill a judgment award against the Republic of Iran made their case at the U.S. Court of Appeals for the First Circuit. 

The oral argument in Rubin v. Harvard University concerned the plaintiffs’ efforts to attach antiquities from Boston’s Museum of Fine Arts and several Harvard University museums. They sought the artifacts in compensation for their injuries stemming from a Hamas-sponsored suicide bombing in Israel in 1997.

The plaintiffs appealed a September 2011 ruling by Judge George O’Toole Jr. of the District of Massachusetts that dissolved the attachments.

O’Toole held that the plaintiffs failed to prove that any item in the museums’ possession was the property of the Islamic Republic of Iran. He also held that the Iranian law cited by the plaintiffs does not “vest ownership of the antiquities at issue with the government of Iran.”

A 2003 ruling from the U.S. District Court for the District of Columbia in Rubin v. Islamic Republic of Iran found “clear and convincing evidence” that Iran and the other defendants provided terrorist training and other assistance to the Hamas terrorists who carried out the bombing attack. Iran has refused to honor that judgment.

In March 2005, the judgment creditors filed a motion for attachment by trustee process in the District of Massachusetts.

The plaintiffs in their opening brief claimed that the Terrorism Risk Insurance Act of 2002 and treasury regulations allow them to enforce their judgment against Iran by attaching certain Iranian items at the museum.

They argued that any conflicting state laws including any involving a statute of limitations do not negate their claims.

In March in another case captioned Rubin v Islamic Republic of Iran, the Seventh Circuit reversed a Northern District of Illinois order requiring Iran to appear and plead immunity. That case involves the Field Museum of Natural History and the University of Chicago, the Oriental Institute.

Judge Jeffrey Howard sat on the First Circuit panel with senior judges Norman Stahl and Kermit Lipez, who attended via remote connection with the federal courthouse in Portland, Maine.

The appellant’s lawyer, Meir Katz, an of counsel to Brooklyn, N.Y.-based Berkman Law Office, argued that when one looks at the Foreign Sovereign Immunities Act “a pattern emerges.” The pattern is that Congress writes a statue, the state department urges narrow interpretation, the courts construe it narrowly and Congress writes another statute, he said.

“It’s time that the courts take Congress on its word that they really meant what they said and resist the temptation by the government to construe the statutes narrowly and read the statutes broadly as they were intended. That is, to give judgment creditors broad rights to access resources that they wouldn’t have had otherwise,” Katz said.

“A judgment creditor has the burden of proving that the assets he seeks to execute on are the property of or owned by the judgment debtor,” said Paul Wolfson, a Washington partner at Wilmer Cutler Pickering Hale and Dorr, who argued briefly for the Harvard defendants. “What this means here in this case is that plaintiffs have the burden to prove any object they want to execute on are the property of Iran and they have to carry that burden of proof for every object that they seek to execute on.”

Simon Frankel, a San Francisco partner at Washington-based Covington & Burling, who argued for the Museum of Fine Arts, said “there’s no basis in Iranian law to support the notion that Iran owns any of this property atthis time.”

Lipez mentioned that there’s a declaration filed in a London case that reflects Iran’s statement of its ongoing property interest in these artifacts. “Why should we not consider that an indication of Iran’s assertion of a property interest in these items?” Lipez asked.

Frankel responded that the court “might defer if it’s a close case but not where the terms of the statute do not support that reading.” He also said that it’s critical that Iran has never made a claim to any of these objects.

Under the plain language of the Terrorism Risk Insurance Act of 2002, the only assets that can be attached are assets that are owned by the relevant terrorist party or one of its agencies or instrumentalities, said Benjamin Shultz, an attorney in the Justice Department’s Civil Division appellate section who argued for amicus curiae the United States.

During Katz’s rebuttal time, Stahl said the Iranian government has never made the claim that these assets are not properly at the institutions in question.

Katz replied that he doubts that they had actual knowledge of all the assets in the United States. “With regard to some assets perhaps, but certainly not with regard to all 2,000 of them and no attempt has been made to distinguish them.”

Sheri Qualters can be contacted at squalters@alm.com.