The three-judge panel found that the law provides no basis for the victims to take the Persepolis Collection — about 30,000 clay tablets containing some of the earliest evidence of writing, currently at the University of Chicago’s Oriental Institute — as part of the judgment, which Iran has not paid. Three other collections were at issue, but the court found that the Persepolis Collection was the only one owned by Iran and in the U.S.
U.S. Circuit Judge David F. Hamilton, who wasn’t on the panel, dissented from the denial of en banc review, saying that the panel’s opinion creates a circuit split and overrules, in part, two recent decisions by the Seventh Circuit. Either would require checking to see if a majority of judges wants to rehear the case en banc, but in a rare occurrence, most of the judges were disqualified for an undisclosed reason, making en banc review impossible.
Hamilton said that the panel’s decision to restrict the use of foreign sovereign assets to satisfy a judgment to only those that are used by the foreign state for commercial activity in the U.S. shelters a wide range of assets, such as the Persepolis Collection, held by state sponsors of terrorism. Earlier this year, the Ninth Circuit ruled in Bennett v. Iran that part of the Foreign Sovereign Immunities Act should enable plaintiffs to collect on assets not used commercially in the U.S., and this same reasoning would extend to the collection in the instant case, he said.
“Both readings of the text, I believe, are reasonable, meaning that the text is ambiguous,” Hamilton said. “The courts must choose between two statutory readings: one that favors state sponsors of terrorism, and another that favors the victims of that terrorism.”
In September 1997, three Hamas suicide bombers blew themselves up in a crowded pedestrian mall in Jerusalem, killing five Israelis. Among those injured were eight U.S. citizens who later joined with a handful of close relatives to sue Iran under the terrorism exception to the FSIA for its role in supporting the attackers. A D.C. federal judge eventually entered a $71.5 million default judgment, the panel said.
Normally, a foreign state’s property in the U.S. is immune from being used to satisfy a judgment, but there are a few narrow exceptions, including two parts of the FSIA.
One part, Section 1610(a), allows the collection of a foreign state’s property that’s being used for commercial activity in the U.S. The Seventh Circuit panel found this to mean commercial use by the foreign state itself, not a third party, ruling that since Iran hasn’t been using the artifacts commercially, this section doesn’t apply.
The other, Section 1610(g), only does away with the so-called Bancec doctrine for terrorism-related judgments. Although that doctrine substantially eases enforcement processes for terrorism victims, it’s not a stand-alone terrorism exception, the court said.
For the past decade, the victims have been unsuccessful in using Iranian assets in the U.S., such as bank accounts and antiquities, to satisfy the judgment, the panel said.
In the instant case, they sought to use four collections held in Chicago museums: the Persepolis Collection, the Chogha Mish Collection and the Oriental Institute Collection, all in the University of Chicago’s possession, and the Herzfeld Collection at Chicago’s Field Museum of Natural History.
The Persepolis Collection was lent to the Oriental Institute in 1937 and remains there. Of the remaining three, Iran has said it does not own the 1,200-piece Herzfeld Collection — purchased in 1945 from German archaeologist Dr. Ernst Herzfeld — and the Oriental Institute Collection, which comprises several small donations of Persian artifacts in the 1980s and 1990s. The fourth collection, Chogha Mish, was mostly returned to Iran in 1970 and thus is not in the U.S., the court said.
Asher Perlin, a lawyer for the victims, told Law360 Wednesday that he and his clients are disappointed with the decision and are considering their options for further review.
Iran could not be reached for comment Wednesday.
U.S. Circuit Judges William J. Bauer and Diane S. Sykes sat on the panel for the Seventh Circuit, with U.S. District Judge Michael J. Reagan of the Southern District of Illinois sitting by designation.
The victims are represented by Asher Perlin of the Florida Professional Law Group LLC.
Iran is represented by Jeffrey A. Lamken of MoloLamken LLP.
The case is Jenny Rubin et al. v. Islamic Republic of Iran et al., case number 14-1935, in the U.S. Court of Appeals for the Seventh Circuit.
--Editing by Mark Lebetkin.
Update: This story has been updated to include comment from the victims' lawyer.