Garmendi

I. Factual Background and Procedural History

Because the facts of this case have been set forth by this court and by the Supreme Court in detail, see Gerling Global Reinsurance Corp. of Am. (“Gerling Global”) v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“Gerling I”); Gerling Global v. Low, 296 F.3d 832 (9th Cir. 2002) (“Gerling II”); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003), we recount only the basic procedural history here.

Plaintiffs brought this action seeking declaratory and injunctive relief from the enforcement of HVIRA, claiming 3144 GERLING GLOBAL REINSURANCE v. GARAMENDI that the statute violated the Commerce Clause, Due Process Clause, foreign affairs power, and other constitutional provi- sions. The district court concluded that plaintiffs “demon- strated a probability of success on the merits that the HVIRA is unconstitutional in violation of the federal foreign affairs power and a violation of the Commerce Clause.” Gerling Global v. Quackenbush, 2000 WL 777978, *13 (E.D. Cal. June 9, 2000). After finding that the balance of irreparable harm favored the plaintiffs, the district court granted a prelim- inary injunction and enjoined the enforcement of…

Opinion by Judge GOODWIN; Concurrence by Judge GRABER

This case returns to our calendar for the fourth timé following its journey to the Supreme Court. Plaintiffs, three insurance companies and one insurance trade association, originally brought this action against the California Commissioner of Insurance (“Commissioner”) seeking to bar the enforcement of the Holocaust Victim Insurance Relief Act of 1999 (“HVIRA”), Cal. Ins.Code §§ 13800-13807 (1999). That statute requires the disclosure of certain information pertaining to Holocaust-era insurance policies written in Europe. Following the Supreme Court’s disposition of the case in their favor, plaintiffs sought attorney’s fees in this court. We remand *805 ed the fees question to the district court, which denied the request. The appealable order was appealed.

This appeal presents two principal questions. First, did the district court err when it held that plaintiffs were not prevailing parties within the meaning of 42 U.S.C. § 1988 ? Second, do the foreign affairs power of the Executive branch and the related executive agreements between the United States, Germany, Austria, and France create private rights within the meaning of…

concurring in the result:

I concur in the result for the following reasons.

1.The claim of preemption by the foreign affairs power is not a fee-generating claim, for the reasons ably explained by the district court. In short, the foreign affairs power, like the Supremacy Clause, creates no individual rights enforceable under 28 U.S.C. § 1983 . Cf. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 , 110 S.Ct. 444 , 107 L.Ed.2d 420 (1989) (“[T]he Supremacy Clause, of its own force, does not create rights enforceable under § 1983.”); Associated Gen. Contractors v. Smith, 74 F.3d 926 , 931 (9th Cir.1996) (“[Preemption of state law under the Supremacy Clause — being grounded not on individual rights but instead on .considerations of power — will not support an action under section 1983, and will not, therefore, support a claim for attorneys’ fees under section 1988.” (alteration in original) (internal quotation marks omitted)).

2. The due process and Commerce Clause claims are fee-generating claims under 28 U.S.C. §§ 1983 and 1988. But Plaintiffs lost those claims before this court.

3. Plaintiffs’ entitlement to fees, then, depends on what happened to the various…