Hwang, Geum Joo v. Japan

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2002 Decided June 27, 2003

No. 01-7169

HWANG GEUM JOO, ET AL.,

APPELLANTS

v.

JAPAN, MINISTER YOHEI KONO, MINISTER OF FOREIGN AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02233)

Michael D. Hausfeld argued the cause for appellants.

With him on the briefs were Agnieszka M. Fryszman, Eliza-

beth H. Cronise, Barry A. Fisher, David Grosz, and Bill

Lann Lee.

Jenny S. Martinez argued the cause for amici curiae Kelly

Askin, et al., in support of appellants. With her on the brief

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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were Michael Tigar, David A. Handzo, and Richard Heide-

man.

Craig A. Hoover argued the cause for appellee. With him

on the brief was Jonathan S. Franklin.

Douglas Hallward–Driemeier, Attorney, U.S. Department

of Justice, argued the cause for amicus curiae United States

of America, in support of appellee. With him on the brief

were Roscoe C. Howard, Jr., U.S. Attorney, and Mark B.

Stern, Attorney, U.S. Department of Justice.

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,

Circuit Judges.

Opinion for the court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The appellants are 15 women from

China, Taiwan, South Korea, and the Phillippines; they

brought this suit against Japan, seeking money damages for

having been subjected to sexual slavery and torture before

and during World War II. The district court held Japan

immune from suit pursuant to the Foreign Sovereign Immu-

nities Act of 1976, 28 U.S.C. §§ 1330, 1602–1611, because it

had not waived its immunity and the conduct alleged did not

come within the commercial activity exception to the FSIA.

The district court also held the suit was barred under the

political question doctrine.

We affirm the judgment of the district court. Under the

FSIA Japan is entitled to immunity from suit concerning the

pre–1952 acts alleged in this case. We reject the appellants’

argument that violation of a jus cogens norm constitutes a

waiver of sovereign immunity.

I. Background

The appellants allege that between 1931 and 1945 the

Government of Japan abducted, coerced, or deceived them

and a large number of other girls and women from occupied

territories to serve as ‘‘comfort women,’’ a euphemism for sex

slaves, at so-called ‘‘comfort stations’’ near the front lines of

the war, where the women were routinely raped, tortured,

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beaten, mutilated, and in some cases murdered. The appel-

lants assert that these comfort stations were operated by the

Japanese Army, which charged soldiers a fee for access to the

women.

Only in 1992 did the Government of Japan acknowledge

having had any involvement with the comfort stations, which

it had previously attributed to entrepreneurs who employed

‘‘voluntary prostitutes.’’ In 2000 the appellants filed a com-

plaint in the district court invoking the Alien Tort Statute, 28

U.S.C. § 1350, and alleging that Japan had violated both

positive and customary international law. Japan filed a mo-

tion to dismiss the complaint on the ground of sovereign

immunity, which motion the district court granted.

The district court determined that its jurisdiction over

Japan, if any, must rest solely upon the FSIA. Hwang Geum

Joo v. Japan, 172 F.Supp.2d 52, 56 (D.D.C. 2001). Because

that statute was not enacted until 1976, the court first consid-

ered whether the FSIA applies retroactively to the actions

alleged in this case. Id. at 57–58. The district court did not

reach a conclusion on that issue, however, instead holding

that, even if the FSIA does govern the plaintiffs’ claims, none

of the exceptions to sovereign immunity provided in the FSIA

applies. Id. at 58. The district court rejected the appellants’

arguments that Japan had waived its immunity to suit in the

United States, either explicitly by agreeing to the Potsdam

Declaration – an argument abandoned on appeal – or implicit-

ly by its commission of jus cogens violations, and that Japan’s

activities came within the commercial activity exception to the

FSIA, 28 U.S.C. § 1605(a)(2). Id. at 64. The district court

held in the alternative that the case must be dismissed

because it presents a nonjusticiable political question. Id. at

67.

II. Analysis

The appellants raise two potential sources of district court

jurisdiction over their suit against Japan. First, they argue

the commercial activity exception to the FSIA applies retro-

actively, and Japan’s operation of ‘‘comfort stations’’ was a

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commercial activity. Next, they contend Japan implicitly

waived its sovereign immunity by violating jus cogens norms.

Then, apparently assuming the courts have jurisdiction over

Japan, they claim the Alien Tort Statute creates a cause of

action for a violation of customary international law. Finally,

the appellants argue the political question doctrine is inappli-

cable to this case.

We hold that the commercial activity exception does not

apply retroactively to events prior to May 19, 1952; we

therefore do not consider whether the ‘‘comfort stations’’

were a ‘‘commercial activity’’ within the meaning of the FSIA.

In any event, the 1951 Treaty of Peace between Japan and

the Allied Powers created a settled expectation on the part of

Japan that it would not be sued in the courts of the United

States for actions it took during the prosecution of World

War II, and the Congress has done nothing that leads us to

believe it intended to upset that expectation. As to whether a

violation of jus cogens norms constitutes an implied waiver of

sovereign immunity pursuant to 28 U.S.C. § 1605(a)(1), our

holding in Princz v. Federal Republic of Germany, 26 F.3d

1166 (D.C. Cir. 1994), is dispositive and remains good law; it

therefore binds this panel of the court, as the appellants

recognize.

We need not decide whether the Alien Tort Statute creates

a cause of action because it clearly does not confer jurisdic-

tion over a foreign sovereign. Nor, because the district court

did not have jurisdiction of this case pursuant to the FSIA,

need we consider whether the political question doctrine

would also bar its adjudication.

A. Retroactive Application of the Commercial Activity

Exception to the FSIA

The FSIA, enacted in 1976, ‘‘provides the sole basis for

obtaining jurisdiction over a foreign state in federal court.’’

Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428, 439 (1989); see Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 488 (1983) (FSIA contains ‘‘comprehen-

sive set of legal standards governing claims of immunity in

every civil action against a foreign state or its political

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subdivisions, agencies, or instrumentalities’’). We have previ-

ously laid out at some length the history of the United States’

approach to foreign sovereign immunity in general, culminat-

ing in the passage of the FSIA, see Princz, 26 F.3d at 1169–

71; here we concentrate specifically upon the commercial

activity exception.

Prior to 1952, the courts of the United States generally

followed the doctrine of ‘‘absolute immunity,’’ see Verlinden,

461 U.S. at 486; Letter from Jack B. Tate, Acting Legal

Advisor, Department of State, to Acting Attorney General

Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. of

State Bull. 984–85 (1952), and in Alfred Dunhill of London,

Inc. v. Cuba, 425 U.S. 682, 711 (1976) (Appendix 2 to opinion

of White, J.); that is, the courts almost always held a foreign

sovereign immune from suit. See Verlinden, 461 U.S. at 486

(‘‘foreign sovereign immunity is a matter of grace and comity

on the part of the United States, and not a restriction

imposed by the Constitution. Accordingly, this Court consis-

tently has deferred to the decisions of the political branches –

in particular, those of the Executive Branch – on whether to

take jurisdiction over actions against foreign sovereigns and

their instrumentalities’’). In 1952 the United States adopted

the doctrine of ‘‘restrictive immunity,’’ as set out in the Tate

Letter and later codified in the FSIA. See Verlinden, 461

U.S. at 486–88. Under that doctrine ‘‘immunity is confined to

suits involving the foreign sovereign’s public acts, and does

not extend to cases arising out of a foreign state’s strictly

commercial acts.’’ Verlinden, 461 U.S. at 487. This distinc-

tion served as the basis for the commercial activity exception

in the FSIA, which allows a suit against a foreign sovereign

to proceed if:

the action is based [1] upon a commercial activity carried

on in the United States by the foreign state; or [2] upon

an act performed in the United States in connection with

a commercial activity of the foreign state elsewhere; or

[3] upon an act outside the territory of the United States

in connection with a commercial activity of the foreign

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state elsewhere and that act causes a direct effect in the

United States.

28 U.S.C. § 1605(a)(2). In this case the appellants invoke the

first and third conditions, claiming in connection with the

former that Japan operated some comfort stations in two

occupied territories of the United States, namely, Guam and

the Phillippines.

With this background in mind we consider whether 28

U.S.C. § 1605(a)(2) can be applied to events that occurred

prior to 1952. This is a two-step inquiry. First, we must

consider whether the commercial activity exception to the

FSIA has retroactive effect.

A statute has retroactive effect when it takes away or

impairs vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or attaches

a new disability, in respect to transactions or consider-

ations already past. As we have repeatedly counseled,

the judgment whether a particular statute acts retroac-

tively should be informed and guided by familiar consid-

erations of fair notice, reasonable reliance, and settled

expectations.

INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal citations and

quotation marks omitted). If we conclude the statute does

not have a retroactive effect, then our inquiry ends and we

apply the statute to events occurring prior to 1952. If,

however, we determine the statute would have a retroactive

effect, then we ask whether the ‘‘presumption against retroac-

tive legislation that is deeply rooted in our jurisprudence’’ is

overcome because the ‘‘Congress has clearly manifested its

intent’’ to legislate retroactively. Hughes Aircraft Co. v.

United States ex rel. Schumer, 520 U.S. 939, 946 (1997)

(internal citations and quotation marks omitted).

1. Would the commercial activity exception have retroactive

effect?

With respect to the first inquiry, we agree with Japan and

the United States that application of the commercial activity

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exception to events that occurred prior to 1952 would impose

new obligations upon, come without fair notice to, and upset

the settled expectations of, foreign sovereigns. We further

agree with the United States that the Tate Letter shows the

United States clearly changed its position in 1952 when it

adopted the doctrine of restrictive immunity. Theretofore a

foreign sovereign justifiably would have expected any suit in

a court in the United States–whether based upon a public or a

commercial act–to be dismissed unless the foreign sovereign

consented to the suit.* As the Eleventh Circuit noted in a

case involving a suit against the People’s Republic of China

for payment of defaulted bearer bonds issued by the Imperial

Chinese Government in 1911:

[T]o give the [FSIA] retrospective application to pre–

1952 events would interfere with antecedent rights of

other sovereigns (and also with antecedent principles of

law that the United States followed until 1952). It would

be manifestly unfair for the United States to modify the

immunity afforded a foreign state in 1911 by the enact-

ment of a statute nearly three quarters of a century

later.

Jackson v. People’s Republic of China, 794 F.2d 1490, 1497–

98 (1986); accord Carl Marks & Co., Inc. v. Union of Soviet

Socialist Republics, 841 F.2d 26, 27 (2d Cir. 1988) (per

curiam) (‘‘Such a retroactive application of the FSIA would

affect adversely the USSR’s settled expectation, rising to the

* Appellants argue that absolute immunity was generally accord-

ed only to ‘‘friendly’’ foreign sovereigns in the pre–1952 era, Verlin-

den, 461 U.S. at 486, and that the State Department and courts

would not have accorded Japan such status considering its posture

in World War II. The Executive Branch, however, specifically

decided to resolve all war-related claims against Japan through

inter-governmental negotiations, see infra pages 9–10, and pre-

FSIA courts would have considered themselves bound by a recom-

mendation to accord Japan immunity from suit. See, e.g., Republic

of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (‘‘It is therefore not

for the courts to deny an immunity which our government has seen

fit to allow, or to allow an immunity on new grounds which the

government has not seen fit to recognize’’).

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level of an antecedent right, of immunity from suit in Ameri-

can courts’’) (citations omitted). We conclude that, because

Japan had a settled expectation in the 1930s and 1940s that

its commercial activities would not be subject to suit in a

court of the United States, application of the commercial

activity exception of the FSIA to acts occurring then would

clearly be retroactive in effect.

For the contrary implication the appellants invoke a dictum

in Princz. There we considered the possibility that applica-

tion of the FSIA to pre–1952 events might not be of ‘‘genuine-

ly retroactive effect,’’ 26 F.3d at 1170 (internal citations and

quotation marks omitted), because the statute is jurisdictional

rather than substantive in nature and therefore ‘‘would just

remove the bar of sovereign immunity to the plaintiff’s vindi-

cating his rights under [the substantive] law.’’ Id. at 1171.

We based this suggestion upon Landgraf v. USI Film Prod-

ucts, 511 U.S. 244, 274 (1994), quoting Hallowell v. Commons,

239 U.S. 506, 508 (1916), in which the Supreme Court had

remarked that a statute affecting jurisdiction ‘‘takes away no

substantive right, but simply changes the tribunal that is to

hear the case.’’

The Supreme Court has since clarified the situation in

Hughes Aircraft, where the issue was whether a 1986 amend-

ment expanding the jurisdiction of the qui tam provision of

the False Claims Act, 31 U.S.C. § 3730(b), could be applied to

events occurring prior to 1986. 520 U.S. at 941–42. The

Court held that, although the amendment affected only juris-

diction, its application in a suit concerning pre-enactment

events would still have a retroactive effect:

The 1986 amendment TTT does not merely allocate juris-

diction among forums. Rather, it creates jurisdiction

where none previously existed; it thus speaks not just to

the power of a particular court but to the substantive

rights of the parties as well. Such a statute, even though

phrased in ‘‘jurisdictional’’ terms, is as much subject to

our presumption against retroactivity as any other.

Id. at 951 (emphasis in original). The commercial activity

exception to the FSIA, by qualifying what previously had

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been the absolute immunity of foreign sovereigns, also ‘‘cre-

ates jurisdiction where none previously existed’’ and therefore

affects the substantive rights of the concerned parties.

We recognize the Ninth Circuit has recently held that the

expropriation exception to the FSIA, 28 U.S.C. § 1605(a)(3),

may be applied retroactively to activities of the German and

Austrian governments in the 1930s and 1940s. See Altmann

v. Republic of Austria, 317 F.3d 954 (2002). The Ninth

Circuit reasoned ‘‘that the Austrians could not have had any

expectation, much less a settled expectation, that the State

Department would have recommended immunity as a matter

of ‘grace and comity’ for the wrongful appropriation of Jewish

property.’’ Id. at 965.

The decisions of the Ninth Circuit are, of course, not

binding on this court. Regardless whether we would follow

the Altmann decision, we do not find its reasoning applicable

to this case because of the 1951 Treaty of Peace with Japan

signed by Japan and the Allied Powers. 3 U.S.T. 3169. As

the United States represents in its brief as amicus curiae, the

Treaty ‘‘embodies the foreign policy determination of the

United States that all claims against Japan arising out of its

prosecution of World War II are to be resolved through inter-

governmental settlements.’’ We agree that the Treaty mani-

fests the parties’ intent to resolve matters arising from World

War II without involving the courts of the United States (or

of any signatory nation). In any event, the interpretation of

the Treaty offered by the United States is a reasonable one.

See Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 178,

184–85 (1982) (‘‘Although not conclusive, the meaning attrib-

uted to treaty provisions by the Government agencies

charged with their negotiation and enforcement is entitled to

great weight’’).

Article 14 of the Treaty expressly waives ‘‘all TTT claims of

the Allied Powers and their nationals arising out of any

actions taken by Japan and its nationals in the course of the

prosecution of the war’’ in return for a reciprocal waiver of

claims by Japan and the right of the Allied Powers to seize

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Japanese assets within the Allies’ respective jurisdictions.

The Treaty further provides that Japan would resolve the

war-related claims of other United Nations member states

and their nationals ‘‘on the same or substantially the same

terms,’’ that is, through intergovernmental agreements, see

Art. 26, as in fact it did. See Treaty of Peace Between the

Republic of China and Japan, April 28, 1952, 138 U.N.T.S. 3;

see also Agreement of the Settlement of Problems Concern-

ing Property and Claims on the Economic Co-operation Be-

tween Japan and the Republic of Korea, June 22, 1965, 583

U.N.T.S. 173. As a result, Japan could not have expected to

be sued in a court of the United States by either an Allied

national or a Chinese or Korean national for a claim arising

out of World War II because the Allied Powers had respec-

tively waived the claims of their nationals and expressed a

clear policy of resolving the claims of other nationals through

government-to-government negotiation. As a matter of for-

eign policy it would be odd indeed for the United States, on

the one hand, to waive all claims of its nationals against Japan

and, on the other hand, to allow non-nationals to proceed

against Japan in its courts. Because there was no similar

treaty with Germany or Austria, and therefore no similar

settled expectation, the opinion in Altmann is not relevant to

the present case.

Altmann is not relevant to the present case for a second

reason. In 1949 the State Department had issued a letter

specifically stating that

The policy of the Executive, with respect to claims

asserted in the United States for the restitution of

identifiable property (or compensation in lieu thereof)

lost through force, coercion, or duress as a result of Nazi

persecution in Germany, is to relieve American courts

from any restraint upon the exercise of their jurisdiction

to pass upon the validity of the acts of Nazi officials.

Altmann, 317 F.3d at 966 (quoting Letter from Jack B. Tate,

Acting Legal Advisor, Department of State, to the Attorneys

for the plaintiff in Civil Action No. 31–555 (S.D.N.Y.), reprint-

ed in Bernstein v. N.V. Nederlandsche–Amerikaansche, 210

11

F.2d 375, 375–76 (2d Cir. 1954) (per curiam)). Appellants do

not point out, and we are not aware of, any similar statement

of policy regarding the alleged acts of Japan in this case.

The lack of such a statement not only distinguishes this case

from Altmann; it also gives us all the more reason to believe

the Executive wanted to handle claims against Japan arising

out of World War II solely at the level of inter-governmental

negotiations.

2. Did the Congress clearly intend to legislate retroactively?

Because the commercial activity exception would, if applied

to events before 1952, upset Japan’s settled expectations, we

must determine whether the Congress manifested a clear

intent to overcome the presumption against retroactive legis-

lation. We find no clear indication the Congress intended 28

U.S.C. § 1605(a)(2) to apply to events occurring prior to 1952.

The appellants point out, as we observed obiter in Princz,

that the decision of the Congress, concurrent with the pas-

sage of the FSIA, to delete from 28 U.S.C. § 1332 the

provision for diversity jurisdiction over a suit brought by a

United States citizen against a foreign government might

suggest the FSIA was intended to have retroactive effect–

‘‘[u]nless one is to infer that the Congress intentionally but

silently denied a federal forum for all suits against a foreign

sovereign arising under federal law that were filed after

enactment of the FSIA but based upon pre-FSIA facts.’’ 26

F.3d at 1170. This point remains valid as applied to events

occurring between 1952 and 1976. The Congress’s decision to

amend 28 U.S.C. § 1332 cannot provide a basis, however, for

altering sovereign immunity as it existed prior to 1952. The

most that can be said is that in enacting the FSIA the

Congress intended to incorporate the doctrine of restrictive

immunity into federal law, not that the doctrine be applied to

events that occurred before the United States first adopted it.

The appellants’ last argument for retroactivity is based

upon a sentence in the preamble of the FSIA: ‘‘Claims of

foreign states to immunity should henceforth be decided by

courts of the United States and of the States in conformity

with the principles set forth in this chapter.’’ 28 U.S.C.

12

§ 1602. In Princz we observed that this statement ‘‘suggests

that the FSIA is to be applied to all cases decided after its

enactment, i.e. regardless of when the plaintiff’s cause of

action may have accrued.’’ 26 F.3d at 1170. The preambular

sentence falls far short, however, of stating the ‘‘clear intent’’

of the Congress that the statute be applied retroactively to

events occurring before 1952. We agree with the United

States that the most probable meaning of the sentence is that

the State Department would no longer consider petitions for

sovereign immunity – which it had done routinely until 1952,

when it issued the Tate Letter, and sometimes thereafter, see

Verlinden, 461 U.S. at 487 – because henceforth the question

of immunity would be addressed solely by the courts applying

the new statute.

We conclude that the commercial activity exception of the

FSIA, 28 U.S.C. § 1605(a)(2), does not apply retroactively to

events that predate the Tate Letter. Therefore, we need not

consider whether the acts alleged in this case constitute a

‘‘commercial activity’’ within the meaning of 28 U.S.C.

§ 1605(a)(2).

B. Violation of a Jus Cogens Norm as a Waiver of Sovereign

Immunity

The appellants argue that Japan impliedly waived its sover-

eign immunity by violating jus cogens norms against sexual

trafficking. ‘‘A jus cogens norm is a principle of international

law that is accepted by the international community of States

as a whole as a norm from which no derogation is permitted.’’

Princz, 26 F.3d at 1173 (internal citations and quotation

marks omitted). In Princz, however, this court soundly

rejected that argument when we construed the ‘‘intentionality

requirement implicit in’’ the waiver provision of the FSIA, 28

U.S.C. § 1605(a)(1), to require ‘‘the foreign government’s

having at some point indicated its amenability to suit.’’ 26

F.3d at 1174. And a sovereign cannot realistically be said to

manifest its intent to subject itself to suit inside the United

States when it violates a jus cogens norm outside the United

States. See id.

The appellants therefore argue that we should revisit our

decision in Princz due to intervening developments in inter-

13

national law. There is no need to revisit Princz, however;

the fundamental premise of that decision – that a court

cannot create a new exception to the general rule of immunity

under the guise of an ‘‘implied waiver’’ – remains sound. See

id. at 1174 n.1 (‘‘something more nearly express is wanted

before we impute to the Congress an intention that the

federal courts assume jurisdiction over the countless human

rights cases that might well be brought by the victims of all

the ruthless military juntas, presidents-for-life, and murder-

ous dictators of the world, from Idi Amin to Mao Zedong’’).

No Supreme Court or circuit case has questioned this court’s

interpretation of 28 U.S.C. § 1605(a)(1) with respect to the

violation of a jus cogens norm; indeed, two other circuit

courts have since followed it, see Sampson v. Federal Repub-

lic of Germany, 250 F.3d 1145, 1156 (7th Cir. 2001); Smith v.

Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d

Cir. 1996); and this panel is in any event bound by it.

C. The Alien Tort Statute

The appellants maintain, and Japan denies, that the Alien

Tort Statute, 28 U.S.C. § 1350, creates a cause of action for a

violation of customary international law. Compare, e.g., Kad-

ic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), with Al Odah v.

United States, 321 F.3d 1134, 1145–49 (D.C. Cir. 2003) (Ran-

dolph, J., concurring). We need not reach this question

because, as Japan and the United States point out, whatever

else the Alien Tort Statute might do, it does not provide the

courts with jurisdiction over a foreign sovereign. Only the

FSIA can provide such jurisdiction. See Amerada Hess, 488

U.S. at 438 (‘‘We think that Congress’ decision to deal com-

prehensively with the subject of foreign sovereign immunity

in the FSIA, and the express provision in § 1604 that ‘a

foreign state shall be immune from the jurisdiction of the

courts of the United States and of the States except as

provided in sections 1605–1607,’ preclude a construction of the

Alien Tort Statute that permits the instant suit’’); Verlinden,

461 U.S. at 488. The appellants, in a footnote to their reply

brief, acknowledge what they could hardly deny. Having

found no jurisdictional predicate under the FSIA, we have no

14

need to determine whether the ATS creates a cause of action

for a violation of customary international law.

III. Conclusion

In sum, we hold only three things: (1) the commercial

activity exception to the FSIA does not apply retroactively to

events, such as those alleged in this case, occurring before

May 19, 1952, the date of the Tate Letter; (2) in any event,

the 1951 Treaty created a settled expectation, left undis-

turbed by the Congress, that Japan would not face suit in the

courts of the United States for its actions during World War

II; and (3) a violation of jus cogens norms does not constitute

an implied waiver of sovereign immunity under the FSIA.

Much as we may feel for the plight of the appellants, the

courts of the United States simply are not authorized to hear

their case. The judgment of the district court dismissing this

case is, accordingly,

Affirmed.