Executive Agreements

• Author: International Law Group

The plaintiffs are insurance carriers in California that sought injunctive relief in a California federal court against John Garamendi, the state insurance commissioner, to prevent him from enforcing California's Holocaust Victim Insurance Relief Act of 1999 (HVIRA) [Cal. Ins. Code Ann. Sections 13800-13807 (West Cum. Supp. 2003)]. It required insurance companies, inter alia, to disclose information about insurance policies pending in Europe at the time of the Holocaust. Ultimately, the U.S. Supreme Court held that Executive Branch authority over foreign policy preempted HVIRA. See American Insurance Association v. Garamendi, 123 S.Ct.2374, 71 U.S.L.W. 4524 (U.S.S.C. June 23, 2003), 2003 International Law Update 98.

Later, the plaintiffs, deeming themselves victorious, sought attorney's fees under 42 U.S.C. Section 1983. The Ninth Circuit remanded the issue of attorney's fees to the District Court and it turned down the request. The Court held that the foreign affairs powers of the executive branch did not create a right or privilege to obtain attorney's fees under a 42 U.S.C. Section 1983 claim. The plaintiffs then appealed.

The U.S. Court of Appeals for the Ninth Circuit reverses. It holds that the district court had read 42 U.S.C.Section 1988 [Fees in proceedings in vindication of civil rights] too narrowly as depriving it of discretion to award plaintiff insurance companies reasonable attorneys' fees.

"The district court concluded that the foreign affairs power did not 'implicate a right, privilege or immunity secured by the Constitution...