Hwang, Geum Joo v. Japan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2005 Decided June 28, 2005

No. 01-7169

HWANG GEUM JOO, ET AL.,

APPELLANTS

v.

JAPAN, MINISTER YOHEI KONO, MINISTER OF FOREIGN

AFFAIRS,

APPELLEE

On Remand from the U.S. Supreme Court

Agnieszka M. Fryszman argued the cause for appellants.

With her on the briefs were Michael D. Hausfeld, Barry A.

Fisher, David Grosz, and Bill Lann Lee.

Jenny S. Martinez argued the cause for amici curiae

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

David A. Handzo and Richard Heideman.

Craig A. Hoover argued the cause for appellee. With

him on the brief were Jonathan S. Franklin and Lorane F.

Hebert.

Sharon Swingle, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States of America in

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support of appellee. With her on the brief were Peter D.

Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.

Attorney, and Mark B. Stern, Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and

TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: We again review the district

court’s dismissal of the appellants’ complaint alleging Japanese

soldiers “routinely raped, tortured ... [and] mutilated” them,

along with thousands of other women, in occupied countries

before and during World War II. Hwang Geum Joo v. Japan,

332 F.3d 679, 681 (D.C. Cir. 2003). The case returns to us now

on remand from the Supreme Court. Having had the benefit of

further briefing and argument, we affirm the judgment of the

district court on the ground that the case presents a

nonjusticiable political question, namely, whether the

governments of the appellants’ countries foreclosed the

appellants’ claims in the peace treaties they signed with Japan.

I. Background

The facts of this case are set forth in our previous opinion,

id. at 680-81. In brief, the appellants are 15 women from China,

Taiwan, South Korea, and the Philippines; in 2000 they sued

Japan in the district court under the Alien Tort Statute, 28

U.S.C. § 1350, “seeking money damages for [allegedly] having

been subjected to sexual slavery and torture before and during

World War II,” in violation of “both positive and customary

international law.” 332 F.3d at 680, 681.

The district court dismissed the appellants’ complaint,

Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 63 (D.D.C.

3

2001), concluding first that Japan’s alleged activities did not

“arise in connection with a commercial activity” and therefore

did not fall within the commercial activity exception in the

Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §

1605(a)(2). Accordingly, the district court did not consider the

second requirement for jurisdiction under that exception -- that

“Japan’s alleged conduct caused a ‘direct effect’ in the United

States.” 172 F. Supp. 2d at 64 n.8. The district court went on to

hold in the alternative that the complaint presents a

nonjusticiable political question, noting that “the series of

treaties signed after the war was clearly aimed at resolving all

war claims against Japan.” Id. at 67.

We affirmed on the ground that Japan would have been

afforded absolute immunity from suit in the United States at the

time of the alleged activities, 332 F.3d at 685, and that the

Congress did not manifest a clear intent for the commercial

activity exception to apply retroactively to events prior to May

19, 1952, when the State Department first espoused the

restrictive theory of immunity later codified in the FSIA, id. at

686. The Supreme Court, however, held in Republic of Austria

v. Altmann, 541 U.S. 677, 699 (2004), that the FSIA applies to

all cases filed thereunder “regardless of when the underlying

conduct occurred.” Accordingly, the Court granted the

appellants’ petition for a writ of certiorari, vacated our

judgment, and remanded the case to this court for further

consideration in light of Altmann. Hwang Geum Joo v. Japan,

124 S. Ct. 2835 (2004).

II. Analysis

The appellants again urge this court to reverse the district

court’s holding that their claims are not “based upon ... act[s] ...

in connection with a commercial activity,” 28 U.S.C. §

1605(a)(2), and to remand the case to the district court for it to

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decide in the first instance whether Japan’s alleged actions

“cause[d] a direct effect in the United States.” Id. Japan, and

the United States as amicus curiae, again argue that Japan enjoys

sovereign immunity because its alleged activities were not

commercial and, in any event, that the appellants’ complaint

presents a nonjusticiable political question.

As explained below, we agree with the latter argument and

therefore do not address the issue of sovereign immunity. The

appellants, however, citing Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83 (1998), contend that “[b]efore

reaching [the] political question [doctrine], this [c]ourt must

establish jurisdiction” under the FSIA. We turn first to that

issue.

A. The Order of Proceeding

As the Supreme Court stated in Steel Co., “For a court to

pronounce upon the meaning ... of a state or federal law when it

has no jurisdiction to do so is, by very definition, for a court to

act ultra vires.” 523 U.S. at 101-02. The court must therefore

“address questions pertaining to its or a lower court’s

jurisdiction before proceeding to the merits.” Tenet v. Doe, 125

S. Ct. 1230, 1235 n.4 (2005).

The appellants apparently assume, but point to no authority

suggesting, a dismissal under the political question doctrine is

an adjudication on the merits. That is not how the Supreme

Court sees the matter:

[T]he concept of justiciability, which expresses the

jurisdictional limitations imposed upon federal courts by

the ‘case or controversy’ requirement of Art. III, embodies

... the ... political question doctrine[] .... [T]he presence of

a political question [thus] suffices to prevent the power of

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the federal judiciary from being invoked by the

complaining party.

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

215 (1974).

Moreover, Steel Co. “does not dictate a sequencing of

jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 584 (1999) (within court’s discretion to address

personal jurisdiction before subject-matter jurisdiction); see also

Toca Producers v. FERC, No. 04-1135, Slip. Op. at 5 (D.C. Cir.

2005) (addressing ripeness before standing). Rather, as this

court held In re Papandreou, “a court that dismisses on other

non-merits grounds such as forum non conveniens and personal

jurisdiction, before finding subject-matter jurisdiction, makes no

assumption of law-declaring power that violates the separation

of powers principles underlying ... Steel Company.” 139 F.3d

247, 255 (1998). As the Supreme Court stated in Tenet,

“application of the Totten rule of dismissal, [92 U.S. 105

(1876),] like the abstention doctrine of Younger v. Harris, 401

U.S. 37 (1971), or the prudential standing doctrine, represents

the sort of ‘threshold question’ we have recognized may be

resolved before addressing jurisdiction.” 125 S. Ct. at 1235 n.4.

Likewise, we need not resolve the question of the district court’s

subject-matter jurisdiction under 28 U.S.C. § 1330 -- that is,

whether Japan is entitled to sovereign immunity under the FSIA,

see Creighton Ltd. v. Gov’t of the State of Qatar, 181 F.3d 118,

121 (D.C. Cir. 1999) (the FSIA “is the sole basis for obtaining

jurisdiction over a foreign state in our courts”) -- before

considering whether the complaint presents a nonjusticiable

political question, see Ruhrgas, 526 U.S. at 585 (“It is hardly

novel for a federal court to choose among threshold grounds for

denying audience to a case on the merits”).

B. The Political Question Doctrine

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The War in the Pacific has been over for 60 years, and

Japan has long since signed a peace treaty with each of the

countries from which the appellants come. The appellants

maintain those treaties preserved, and Japan maintains they

extinguished, war claims made by citizens of those countries

against Japan. As explained below, our Constitution does not

vest the authority to resolve that dispute in the courts. Rather,

we defer to the judgment of the Executive Branch of the United

States Government, which represents, in a thorough and

persuasive Statement of Interest, that judicial intrusion into the

relations between Japan and other foreign governments would

impinge upon the ability of the President to conduct the foreign

relations of the United States.

Baker v. Carr, 369 U.S. 186 (1962), remains the starting

point for analysis under the political question doctrine. There

the Supreme Court explained that “[p]rominent on the surface of

any case held to involve a political question is found” at least

one of six factors, the first of which is “a textually demonstrable

constitutional commitment of the issue to a coordinate political

department ....” Id. at 217.* Of course, questions concerning

foreign relations “frequently ... involve the exercise of a

discretion demonstrably committed to the executive or

*

Other factors that indicate a political question, the Court in

Baker explained, are: “a lack of judicially discoverable and

manageable standards for resol[ution]; or the impossibility of deciding

without an initial policy determination of a kind clearly for nonjudicial

discretion; or the impossibility of a court’s undertaking independent

resolution without expressing lack of the respect due coordinate

branches of government; or an unusual need for unquestioning

adherence to a political decision already made; or the potentiality of

embarrassment from multifarious pronouncements by various

departments on one question.” Id.

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legislature”; the Court cautioned, however, that “it is error to

suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.” Id. at 211. Courts

are therefore to focus their analysis upon “the particular question

posed, in terms of the history of its management by the political

branches.” Id.

The Supreme Court has recently given further direction

more closely related to the legal and factual circumstances of

this case: A policy of “case-specific deference to the political

branches” may be appropriate in cases brought under the Alien

Tort Statute. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2766

n.21 (2004). In Sosa, the Court took note of certain class actions

seeking damages for those injured by “the regime of apartheid

that formerly controlled South Africa”; in each case the United

States had filed a Statement of Interest counseling dismissal

because prosecution of the case would interfere with South

Africa’s policy of “deliberately avoid[ing] a ‘victors’ justice’

approach to the crimes of apartheid” in favor of “confession and

absolution ... reconciliation, reconstruction, reparation and

goodwill.” Id. “In such cases,” the Court explained, “there is a

strong argument that federal courts should give serious weight

to the Executive Branch’s view of the case’s impact on foreign

policy.” Id. Similarly, the Court in Altmann noted that a

Statement of Interest concerning “the implications of exercising

jurisdiction over [a] particular [foreign government] in

connection with [its] alleged conduct ... might well be entitled

to deference as the considered judgment of the Executive on a

particular question of foreign policy.” 541 U.S. at 702; see also

id. at 714 (Breyer, J., concurring) (citing district court’s opinion

in this case).

With these principles in mind, we turn to “the particular

question posed” in this case, Baker, 369 U.S. at 211, namely,

whether the series of treaties Japan concluded in order to secure

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the peace after World War II foreclosed the appellants’ claims.

As we explained in our previous opinion, Article 14 of the 1951

Treaty of Peace between Japan and the Allied Powers, 3 U.S.T.

3169, “expressly waives ... ‘all 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.’” 332 F.3d

at 685.

The appellants from China, Taiwan, and South Korea argue

that because their governments were not parties to the 1951

Treaty, the waiver of claims provision in Article 14 did not

extinguish their claims. Neither, they argue, did the subsequent

agreements between Japan and the governments of their

countries. Although the appellants acknowledge that “it may

seem anomalous that aliens may sue where similar claims of

U.S. nationals are waived,” they argue “that is precisely the

result contemplated by ... the [Alien Tort Statute], 28 U.S.C. §

1350.”*

“Anomalous” is an understatement. See Statement of

Interest of the United States at 28 (“it manifestly was not the

*

Despite the district court’s having dismissed their complaint

on the ground that “the series of treaties signed after the war was

clearly aimed at resolving all war claims against Japan” and that a

United States “court is not the appropriate forum in which plaintiffs

may seek to reopen those discussions,” 172 F. Supp. 2d at 67, the

appellants argue for the first time in their post-remand Supplemental

Reply Brief that because they allege injuries dating back to 1931, their

claims did not arise solely from “the prosecution of the war,” which

in Article 8(a) of the 1951 Treaty is defined as having begun on

September 1, 1939, the day Germany invaded Poland. This argument,

raised for the first time in the appellants’ fourth and final brief on

appeal, comes far too late for the court to consider, cf. Sierra Club v.

EPA, 292 F.3d 895, 900 (D.C. Cir. 2002) (“our caselaw makes clear

that an argument first made in the reply comes too late”).

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intent of the President and Congress to preclude Americans from

bringing their war-related claims against Japan ... while allowing

federal or state courts to serve as a venue for the litigation of

similar claims by non-U.S. nationals”). Even if we assume,

however, as the appellants contend, that the 1951 Treaty does

not of its own force deprive the courts of the United States of

jurisdiction over their claims, it is pellucidly clear the Allied

Powers intended that all war-related claims against Japan be

resolved through government-to-government negotiations rather

than through private tort suits. Indeed, Article 26 of the Treaty

obligated Japan to enter “bilateral” peace treaties with non-

Allied states “on the same or substantially the same terms as are

provided for in the present treaty,” which indicates the Allied

Powers expected Japan to resolve other states’ claims, like their

own, through government-to-government agreement. To the

extent the subsequent treaties between Japan and the

governments of the appellants’ countries resolved the claims of

their respective nationals, the 1951 Treaty at a minimum obliges

the courts of the United States not to disregard those bilateral

resolutions.

First, the Republic of the Philippines, as an Allied Power,

was a signatory to the 1951 Treaty itself and thus at least

purported to waive the claims of its nationals. 136 U.N.T.S. at

137, ratified 260 U.N.T.S. 450. Then in 1952 Japan reached an

agreement with the Republic of China (Taiwan), 138 U.N.T.S.

37, which did not expressly mention the settlement of individual

claims but did state in Article XI that “[u]nless otherwise

provided for in the present Treaty ... any problem arising

between [the parties] as a result of the existence of a state of war

shall be settled in accordance with the relevant provisions of the

[1951] Treaty.” In 1965 Japan and the Republic of Korea

(South Korea) entered into an agreement providing that “the

problem concerning property, rights, and interests of the two

Contracting Parties and their nationals ... and concerning claims

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between the Contracting Parties and their nationals ... is settled

completely and finally.” 583 U.N.T.S. 258, 260 (Art. II, § 1).

Finally, in 1972 Japan and the People’s Republic of China

issued a Joint Communiqué in which China “renounce[d] its

demand for war reparation from Japan,” and in 1978 Japan and

China affirmed in a formal treaty of peace that “the principles

set out in [the Joint Communiqué] should be strictly observed.”

1225 U.N.T.S. 269.

As evidenced by the 1951 Treaty itself, when negotiating

peace treaties,

governments have dealt with ... private claims as their own,

treating them as national assets, and as counters, ‘chips’, in

international bargaining. Settlement agreements have

lumped, or linked, claims deriving from private debts with

others that were intergovernmental in origin, and

concessions in regard to one category of claims might be set

off against concessions in the other, or against larger

political considerations unrelated to debts.

Louis Henkin, Foreign Affairs and the Constitution 300 (2d

edition 1996); see Dames and Moore v. Regan, 453 U.S. 654,

688 (1981) (upholding President’s authority to settle claims of

citizens as “a necessary incident to the resolution of a major

foreign policy dispute between our country and another [at least]

where ... Congress acquiesced in the President’s action”); Am.

Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003)

(acknowledging “President’s authority to provide for settling

claims in winding up international hostilities”).

The governments of the appellants’ countries apparently

had the authority -- at least the appellants do not contest the

point -- to bargain away their private claims in negotiating a

peace with Japan and, as we noted previously, it appears “in fact

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[they] did.” 332 F.3d at 685. Indeed, Professor Henkin reports

that “except as an agreement might provide otherwise,

international claim settlements generally wipe out the

underlying private debt, terminating any recourse under

domestic law as well.” Above at 300. The Supreme Court first

expressed the same understanding with respect to the Treaty of

Paris ending the War of Independence, which expressly

provided for the preservation of private claims. In Ware v.

Hylton, 3 U.S. (3 Dall.) 199, 230 (1796), a case brought by a

British subject to recover a debt confiscated by the

Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of

the war, and that after peace is concluded, neither the matter

in dispute, nor the conduct of either party, during the war,

can ever be revived, or brought into contest again. All

violencies, injuries, or damages sustained by the

government, or people of either, during the war, are buried

in oblivion; and all those things are implied by the very

treaty of peace; and therefore not necessary to be expressed.

Hence it follows, that the restitution of, or compensation

for, British property confiscated, or extinguished, during the

war, by any of the United States, could only be provided for

by the treaty of peace; and if there had been no provision,

respecting these subjects, in the treaty, they could not be

agitated after the treaty, by the British government, much

less by her subjects in courts of justice. (Emphasis

supplied).

Contrary to that principle, the appellants insist the treaties

between Japan and Taiwan, South Korea, and China preserved

the claims of individuals by failing to mention them (a claim

that would be untenable with respect to the Philippines). Japan

does not agree, nor does the Department of State, which takes

the position that “[t]he plaintiffs’ governments ... chose to

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resolve those claims through international agreements with

Japan.” Statement of Interest at 31. In order to adjudicate the

plaintiffs’ claims, the court would have to resolve their dispute

with Japan over the meaning of the treaties between Japan and

Taiwan, South Korea, and China, which, as the State

Department notes in arguing this case is nonjusticiable, would

require the court to determine “the effects of those agreements

on the rights of their citizens with respect to events occurring

outside the United States.” Id.

The question whether the war-related claims of foreign

nationals were extinguished when the governments of their

countries entered into peace treaties with Japan is one that

concerns the United States only with respect to her foreign

relations, the authority for which is demonstrably committed by

our Constitution not to the courts but to the political branches,

with “the President [having] the ‘lead role.’” Garamendi, 539

U.S. at 423 n.12. And with respect to that question, the history

of management by the political branches, Baker, 369 U.S. at

211, is clear and consistent: Since the conclusion of World War

II, it has been the foreign policy of the United States “to effect

as complete and lasting a peace with Japan as possible by

closing the door on the litigation of war-related claims, and

instead effecting the resolution of those claims through political

means.” Statement of Interest at 29; see also S. Rep. No. 82-2,

82d Cong., 2d Sess. 12 (1952) (“Obviously insistence upon the

payment of reparations in any proportion commensurate with the

claims of the injured countries and their nationals would wreck

Japan’s economy, dissipate any credit that it may possess at

present, destroy the initiative of its people, and create misery

and chaos in which the seeds of discontent and communism

would flourish”); Aldrich v. Mitsui & Co. (USA), Case No. 87-

912-Civ-J-12, Slip Op. at 3 (M.D. Fla. Jan. 20, 1988) (following

State Department’s recommendation to dismiss private claim as

barred by 1951 Treaty); In re World War II Era Japanese

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Forced Labor Litigation, 114 F. Supp. 2d 939, 946-48 (N. D.

Cal. 2000) (same).

It is of course true, as the appellants point out, that in

general “the courts have the authority to construe treaties and

executive agreements,” Japan Whaling Ass’n v. Am. Cetacean

Soc’y, 478 U.S. 221, 230 (1986); see also Ungaro-Benages v.

Dresdner Bank AG, 379 F.3d 1227, 1235-36 (11th Cir. 2004).

At the same time, the Executive’s interpretation of a treaty is

ordinarily entitled to “great weight,” Sumitomo Shoji Am., Inc.

v. Avagliano, 457 U.S. 176, 184-85 (1982).

Here, however, the United States is not a party to the

treaties the meaning of which is in dispute, and the Executive

does not urge us to adopt a particular interpretation of those

treaties. Rather, the Executive has persuasively demonstrated

that adjudication by a domestic court not only “would undo” a

settled foreign policy of state-to-state negotiation with Japan,

but also could disrupt Japan’s “delicate” relations with China

and Korea, thereby creating “serious implications for stability in

the region.” Statement of Interest at 34-35. Consider:

According to the appellants the Republic of Korea does not

agree with Japan’s understanding that the treaty between them

extinguished the appellants’ claims against Japan. See Reply

Brief of Appellants at 15 n.14 (quoting Korean Foreign Minister

as saying that “it is the government’s position that the [Treaty of

1965] does not have any effect on individual rights to bring

claims or lawsuits,” Decl. of Prof. Chang Rok Kim, Pls.’ Opp.

Mot. Dismiss. Ex. 2 at 12). Is it the province of a court in the

United States to decide whether Korea’s or Japan’s reading of

the treaty between them is correct, when the Executive has

determined that choosing between the interests of two foreign

states in order to adjudicate a private claim against one of them

would adversely affect the foreign relations of the United

States? Decidedly not. The Executive’s judgment that

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adjudication by a domestic court would be inimical to the

foreign policy interests of the United States is compelling and

renders this case nonjusticiable under the political question

doctrine.

III. Conclusion

We hold the appellants’ complaint presents a nonjusticiable

political question, namely, whether the governments of the

appellants’ countries resolved their claims in negotiating peace

treaties with Japan. In so doing we defer to “the considered

judgment of the Executive on [this] particular question of

foreign policy.” Altmann, 541 U.S. at 702; Cf. Alperin v.

Vatican Bank, 405 F.3d 727, 755 (9th Cir. 2005) (“Condemning

-- for its wartime actions -- a foreign government with which the

United States was at war would require us to review an exercise

of foreign policy judgment by the coordinate political branch to

which authority to make that judgment has been constitutionally

committed”). For the court to disregard that judgment, to which

the Executive has consistently adhered, and which it

persuasively articulated in this case, would be imprudent to a

degree beyond our power.

Accordingly, as we said when this case was previously

before us, “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.” 332 F.3d at 687. For the foregoing reasons, the

judgment of the district court is

Affirmed.