Opposition Brief — Jae Won Jeong v. Taiheiyo Cement Corp.

No. 04-499

IN THE

Supreme Court of the United States

JAE WON JEONG,

Petitioner,

V.

TAIHETYO CEMENT CORPORATION, et al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI

TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA,

SECOND APPELLATE District, Division E1GHT

RESPONDENTS’ BRIEF IN OPPOSITION

MATTHEW Epwarp DicBy

Counsel of Record

Heipi A. LEIDER

BINGHAM McCuTcHEN LLP

355 South Grand Avenue, Suite 4400

Los Angeles, CA 90071-3106

(213) 680-6400

Counsel for Respondents

Taiheiyo Cement Corporation, Taiheiyo

Cement U.S.A., Inc., California Portland

Cement Co., Glacier Northwest, Inc.

({/k/a Lone Star Northwest, inc.)

191530 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTION PRESENTED

Whether World War II forced labor claims asserted by

former Korean nationals under California Code of Civil

Procedure § 354.6 are preempted by the United States’

exclusive authority over foreign relations and the foreign

policy, embodied in Articles 4(a) and 26 of the 1951 Treaty

of Peace with Japan, that such claims must be resolved

through bilateral negotiations between Japan and Korea,

rather than through litigation in state court.

il

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Taiheiyo Cement Corporation has no parent company,

and no other publicly held company owns 10% or more of

its stock. Taiheiyo Cement U.S.A., Inc., is a wholly owned

subsidiary of Taiheiyo Cement Corporation. California

Portland Cement Co. and Glacier Northwest, Inc. (f/k/a Lone

Star Northwest, Inc.) are wholly owned subsidiaries of

Taiheiyo Cement U.S.A., Inc.

ul

TABLE OF CONTENTS

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RULE 29.6 CORPORATE DISCLOSURE

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TABLE OF CITED AUTHORITIES ............

BRIEF OF RESPONDENTS IN OPPOSITION ...

STATEMENT OF THE CASE .................

A. The United States’ Resolution of World War

II Claims Concerning Japan .............

B. The California World War II Forced Labor

CRN TR yes ep ne a Oa

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1. Taiheiyo’s Motions for Judgment on the

PT hs veGicwdehan swan os venwa

2. Taiheiyo’s Petition for a Writ of

I Ee ee ree ee

REASONS FOR DENYING THE PETITION ....

I. The Petition Should Be Denied Because There

Is No Conflict To Resolve ...............

Page

iv

Contents

Page

II. The Petition Should Be Denied Because

Garamendi Resolves All Of Petitioner’s

PED | ac bd kan ode ko eaaN RAEN eka eKan 14

el Se hk wba ene dr toca kavenss 14

B. Garamendi Controls ............... 16

1. The Foreign Policy Embodied In The

pI ee ree ere te 17

2. The Executive’s Interpretation Of

1 fg PURGES PT ETECT VTEC Tee 18

3. Balancing State Interests ........ 22

III. Alternative Grounds For Dismissal Make

Certiorari Inappropriate ................. 24

Bi FI ovine cduscdccueens 24

is PE oo. nn bckde ceusewenkas 25

IV. Objections To The Question Presented For

pe kandoabebukcesddneree bese 26

See ef rere rey ee errr. Tee Pere 27

TABLE OF CITED AUTHORITIES

Page

Cases ”

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)... 26

Alperin v. Vatican Bank, 242 F. Supp. 2d 686

(Ix C8 SOE is a ae 25

American Ins. Ass'n v. Garamendi, 539 U.S. 396

o | STP r Pere See Cer r pe y passim

Baker v. Carr, 369 U.S. 186 (1962) ............. 25

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

CSOD en ht'e's ch CRANES AEE eee 15, 16

Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248

ee re ra eee ed yee 1, a0

Deutsch v. Turner Corp., 324 F.3d 692 (9" Cir.

BORE Wid Vecusiedlesaccbd skeen passim

Gerling Global Reins. Corp. v. Gallagher, 267 F.3d

ee Feb te | er ree errs rrr re 25

In re Nazi Era Cases Against German Defendants

Litig., 129 F. Supp. 2d 370 (D.N.J. 2001) ...... 25

In re World War II Era Japanese Forced Labor Litig.,

114 F. Supp. 2d 939 (N.D. Cal. 2000) ......... 4,9

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424

ON ae PPP OUE PTT PT CET Pr ror rrr? 20, 25

Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003) .. 4,5, 14, 20

vi

Cited Authorities

Page

Kelberine v. Societe Internationale, 363 F.2d 989

eS ee re 25

Kim v. Ishikawajima Harima Heavy Indus., Ltd.,

S40 U.S. SIO COG) ccdccusccnscdsebsecsens 9,13

Ma v. Kajima Corp., 540 U.S. 820 (2003) ........ 13

Mitsubishi Materials Corp. v. Super. Ct., 113 Cal. App.

55 GOSS) ccncesetecssevssesseeasaee 4, 19, 23

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)

00000600056068 600000" ER Aske 24

Saldajeno v. Ishihara Sangyo Kaisha, Ltd., 540 U.S.

G20 CAGES) cccvsnccasesvecsaunecuaneuaee 4,13

Spindulys v. Los Angeles Olympic Organizing Comm.,

17S Cal. App. 3G BOG CGPEED ocncécessuvsscen 25

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176

(IGGED 00c00s0ssee00esersesndaneeeeee 20, 21

Tenney v. Mitsui & Co., Ltd., 540 U.S. 820 (2003)

WTVTTTITETT rer er 4,13

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227

(18° Con. FROG) sh:d000enc8ssseaseeeeee 25

United States v. Pink, 315 U.S. 203 (1942) ....... 25

Zschernig v. Miller, 389 U.S. 429 (1968) ........ 13,17

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Cited Authorities

Page

Statutes

Alien Tort Claims Act, 28 U.S.C. § 1350 ........ 22

Cab. Ce Cae, FIOR. © BIRD ccccccncvecocsones passim

Rules

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Chee a Oe SOE co ben cedasnncnelacducass 26

Treaties

Agreement on the Settlement of Problems Concerning

Property and Claims and on Economic Co-

operation, June 22, 1965, Japan-Republic of Korea,

PE as BE bn Kh sededbdnsesacvesncieas 5

Treaty of Peace Between the Republic of China and

Japan, April 28, 1952, 138 U.N.T.S.3......... 6

Treaty of Peace and Friendship Between Japan and

the People’s Republic of China, Aug. 12, 1978,

ERED MI OF Gob cncdsdeodadengcandase 6

Treaty of Peace with Japan, Sept. 8, 1951, U.S.-Japan,

LES me SPOT Pe eT STE TT eT rrerTrer: passim

Vili

Cited Authorities

Page

Other Authorities

Japanese Peace Treaty and Other Treaties Relating to

Security in the Pacific, Report of the Committee

on Foreign Relations, Sen. Exec. Rep. No. 82-2

Ss Hh Gawake aces ae ee eee a ET ood ke 3

Agreed Minutes to the Agreement on the Settlement

of Problem Concerning Property and Claims and

on the Economic Co-operation Between Japan and

the Republic of Korea, June 22, 1965, 583 U.N.T.S.__

Me a Vackeel keekcek ss de deeenecieaeacaeeue 5, 6

Joint Communiqué of the Government of Japan and

the Government of the People’s Republic of China,

rr re re a rer re 6

l

BRIEF OF RESPONDENTS IN OPPOSITION

The California Court of Appeal’s decision in this case is

mandated by American Ins. Ass'n v. Garamendi, 539 U.S. 396

(2003), and agrees with the Ninth Circuit’s holding that World

War II forced labor claims identical to those asserted here are

barred by the federal government’s exclusive authority over

foreign relations. See Deutsch v. Turner Corp., 324 F.3d 692

(9" Cir.), cert. denied sub nom. Kim v. lshikawajima Harima

Heavy Indus., Ltd., 540 U.S. 820 (2003). Because Garamendi

resolves every issue presented by the Petition, and because there

is no conflict among the lower courts for this Court to resolve,

the Petition for certiorari should be denied.

The 1951 Treaty of Peace with Japan (“the 1951 Treaty” or

“Treaty’”), 3 U.S.T. 3169 (App. 134-64), established a framework

for the resolution of claims against Japan and its nationals arising

out of World War II — including the forced labor claims asserted

here by petitioner, a former Korean national. Articles 14 and 19

of the Treaty provided for a mutual waiver of claims by the

Allies and Japan and their respective nationals. App. 147, 151-

52; see n.2, infra. The Treaty contemplated that claims by non-

signatory nations, such as Korea and China, and their nationals,

would be resolved through negotiations between Japan and the

affected countries. Article 4(a) mandated that the “claims...

of [Korean] authorities and residents against Japan and its

nationals, shall be the subject of special arrangements between

Japan and [Korean] authorities.” App. 136-37 (emphasis

added).' Article 26 further required Japan “to conclude with

any State ... which is not a signatory of the present Treaty, a

bilateral Treaty of Peace” to resolve World War II claims.

(App. 155-56).

The California Court of Appeal held that “Articles 4(a) and

26 embody the federal purpose and foreign policy that WWII

1. The Treaty specifically defines the term “nationals” to include

“juridical persons,” such as respondents. 1951 Treaty, art. 4(a)

(App. 137).

2

claims by individuals of non-signatory nations were to be

resolved through diplomacy,” Taiheiyo Cement Corp. v. Super.

Ct., 117 Cal. App. 4" 380, 392 (2004) (App. 16), thus preempting

petitioner’s attempt to resolve his forced labor claims through

state-court litigation under California’s recently enacted World

War II forced labor statute. The Court of Appeal’s decision was

required by Garamendi, in which this Court held that a

California statute seeking to facilitate the resolution of World

War II era insurance claims was preempted by the federal

government’s foreign affairs powers. 539 U.S. at 401. This Court

held that U.S. executive agreements that “embod[ied]” a foreign

policy to resolve World War II claims, but that “include[d] no

preemption clause,” were sufficient to preempt the California

law under the federal government’s foreign affairs power.

Id. at 417.

Here, the Court of Appeal correctly recognized that

“Garamendi compels our conclusion that . . . California’s law

conflicts with the foreign policy expressed in the 1951 Treaty.”

Taiheiyo Cement, 117 Cal. App. 4" at 398 (App. 26). Indeed,

the Court of Appeal found preemption here “even more

compelling” than in Garamendi itself, because the foreign policy

barring petitioner’s claims was established by a treaty formally

ratified by the Senate, not just by executive agreements, as in

Garamendi. Id. at 397 (App. 24).

The Court of Appeal’s decision thus joined the decision of

the United States Court of Appeals for the Ninth Circuit

in holding California’s World War II forced labor statute

unconstitutional on foreign affairs grounds. See Deutsch,

324 F.3d at 706-16. This Court denied certiorari in Deutsch,

and it should do so here as well.

Certiorari is also unwarranted because petitioner’s claims

are barred by other constitutional doctrines not reached by the

opinion under review. Among these are the political question

doctrine and due process limitations on the extraterritorial

application of state law.

3

For all of these reasons, the Petition should be denied.

STATEMENT OF THE CASE

A. The United States’ Resolution of World War II Claims

Concerning Japan

In the aftermath of World War II, the United States viewed

a “free, prosperous and democratic Japan” as “an important

stabilizing influence in the Far East” in the face of “[mounting]

international tensions” in that region. Japanese Peace Treaty

and Other Treaties Relating to Security in the Pacific, Report

of the Committee on Foreign Relations, Sen. Exec. Rep. No.

82-2 (1952) (hereinafter “Sen. Exec. Rep. No. 82-2”), at 2.

One of the most difficult questions confronting the

negotiators of the 1951 Treaty was the issue of reparations —

not only for the Allies and their nationals, but for Korea and

China and their nationals. Potential Allied claims against Japan

amounted to more than $100 billion in 1952 dollars. See id. at

13. In the Senate Foreign Relations Committee’s view, “It would

obviously be impossible for Japan to pay more than a very small

fraction of such a huge amount.” /d.; see also 1951 Treaty,

art. 14(a) (App. 144) (recognizing “that the resources of Japan

are not presently sufficient, if it is to maintain a viable economy,

to make complete reparation for all such damages and suffering

and at the same time meet its other obligations”).

In the 1951 Treaty, the United States and the other Allied

Powers established a framework for the resolution of claims

arising out of the events of World War II in the Pacific. In so

doing, the United States adhered to the principle that “reparations

for war losses isa... matter to be settled between governments”

and that “it is the ... responsibility of each government to

provide such compensation for persons under its protection as

that government deems fair and equitable. . . out of reparations

that may be received from Japan or from other sources.”

Sen. Exec. Report No. 82-2 at 13 (emphasis added).

4

As to signatories, including the United States, the 1951

Treaty provided specified reparations and waived all further

claims of the Allies and their nationals against Japan and its

nationals arising out of actions taken in the course of the

prosecution of the war. 1951 Treaty, articles 14-19, (App. 144-

47, 151-52).?

As to non-signatories, the 1951 Treaty established a

framework for the resolution of war claims through bilateral

negotiations between Japan and the affected nations.

See generally Joo v. Japan, 332 F.3d 679, 685 (D.C. Cir. 2003),

vacated on other grounds, 124 S. Ct. 2835 (2004). Principal

among the non-signatories was Korea, which was not a signatory

to the 1951 Treaty because, as part of the Empire of Japan until

the end of World War II, it had not been at war with Japan.

Tab 32 at 1783, 1785.° Nonetheless, the Treaty negotiators

inserted several provisions intended to address the post-war

issues Outstanding between Korea and Japan, including

compensation for Korea and its nationals. Article 21 of the 1951

Treaty gave Korea the benefits of Articles 2, 4, 9 and 12 of the

Treaty, which dealt with the recognition of Korean

independence, the right of Korean authorities to seize all

Japanese-owned assets in Korea, and the right of Korea to obtain

2. The waiver of Allied and Allied nationals’ claims against Japan

and its nationals is discussed extensively in Mitsubishi Materials Corp.

v. Super. Ct., 113 Cal. App. 4" 55 (2003), Jn re World War II Era Japanese

Forced Labor Litig., 114 F. Supp. 2d 939 (N.D. Cal. 2000), aff’d sub

nom. Deutsch v. Turner Corp., 324 F.3d 692 (9% Cir.), cert. denied sub

nom. Tenney v. Mitsui & Co., Ltd., 540 U.S. 820 (2003), and Jn re World

War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1153 (N.D.

Cal. 2001), aff’d sub nom. Deutsch v. Turner Corp., 324 F.3d 692

(9 Cir.), cert. denied sub nom. Saldajeno v. Ishihara Sangyo Kaisha,

Ltd., 540 U.S. 821 (2003).

3. Tab references are to the Appendix of Exhibits in Support of

Petition for Writ of Mandate, Prohibition or Other Appropriate Relief,

filed in the California Court of Appeal.

5

certain economic agreements on a most-favored-nation basis,

as well as other commercial rights. (App. 135-37, 140-43, 153).

In return, Article 4(a) provided that the “claims ... of

[Korean] authorities and residents against Japan and its

nationals, shall be the subject of special arrangements between

Japan and [Korean] authorities.” (App. 136-37) (emphasis

added).

Similarly, the 1951 Treaty established a framework for

post-war relations between Japan and China. Article 21 of the

Treaty gave China the benefits of Articles 10 and 14(a)(2),

entitling China to seize all property of Japan and Japanese

businesses located in China, and providing for Japan’s

renunciation of any claim to Chinese territory. (App. 141,

145-47, 153). Article 26 obligated Japan to conclude a treaty

with China “on the same or substantially the same terms” as the

1951 Treaty (App. 155-56), that is, one that would resolve the

claims of China and its nationals just as the 1951 Treaty had for

the Allies and their nationals.

These provisions of the 1951 Treaty established, as a matter

of U.S. foreign policy, that the World War II claims of Korea,

China and their nationals were to be resolved “through

government-to-government negotiation.” Joo, 332 F.3d at 685.

The framework established by the 1951 Treaty was in large

part a success, resulting in the negotiated settlement of the World

War II claims of the Republic of Korea (South Korea), the

Republic of China (Taiwan), the People’s — of China

(China), and their respective nationals.

Japan and South Korea entered into a war claims settlement

in 1965. See Agreement on the Settlement of Problems

Concerning Property and Claims and on Economic

Co-operation, June 22, 1965, Japan-Republic of Korea, 583

U.N.T.S. 258 (“Claims Treaty”), Tab 7 at 315. The Claims Treaty

“settled completely and finally” all claims of South Korea and

6

Japan “and their nationals” including, but not limited to,

“those provided for in Article IV, paragraph (a) of the [1951

Treaty],” (id., art. 2 9 1, 583 U.N.T.S. at 260, Tab 7 at 318) and

also including “any claim falling within the scope of the ‘Outline

of the Claims of the Republic of Korea against Japan’ (the so-

called ‘Eight Items’).” Agreed Minutes to the Agreement on

the Settlement of Problem Concerning Property and Claims and

on the Economic Co-operation Between Japan and the Republic

of Korea, June 22, 1965, para. 2(g), 583 U.N.T.S. 290, 292,

Tab 7 at 350. The Eight Items, in turn, specifically include

“c]laims by Koreans against Japanese nationals or corporations”

and the claims of “Korean draftees,” such as petitioner.

Tab 7 at 370.

Pursuant to Article 26 of the 1951 Treaty, Japan concluded

agreements with Taiwan in 1952‘ and with China in 1972 and

1978,° which similarly resolved the wartime claims of those

4. See Treaty of Peace Between the Republic of China and Japan,

April 28, 1952, 138 U.N.T.S. 3, 38 (the “ROC Treaty”). The ROC Treaty

incorporated the “relevant provisions” of the 1951 Treaty as the rule by

which “any problem” between the signatories resulting from

“the existence of a state of war” “shall be settled,” unless the ROC

Treaty, or its supplementary documents, provided otherwise. /d., art.

XI, 138 U.N.T.S. at 42. Because Article 14 of the 1951 Treaty deals

with a problem resulting from the war — the settlement of war claims

against Japan and its nationals — Article XI incorporates Article 14’s

provisions and resolves the claims of the ROC and its nationals, including

war-time forced labor claims.

5. In 1972, Japan and the People’s Republic of China (“PRC”)

issued a Joint Communiqué in which the PRC “renounce[d] its demand

for war reparation from Japan.” Joint Communiqué of the Government

of Japan and the Government of the People’s Republic of China, Sept.

29, 1972, para. 5, available at <www.taiwandocuments.org/

japan0O1.htm>. In 1978 Japan and the PRC formalized their relations in

the Treaty of Peace and Friendship Between Japan and the People’s

Republic of China, Aug. 12, 1978, 1225 U.N.T.S. 257, 269 (the

“PRC Treaty”), incorporating and reaffirming the terms of the Joint

(Cont'd)

7

countries and their nationals. As to North Korea, the negotiations

contemplated by Article 4(a) remain unresolved and are

ongoing.®

B. The California World War II Forced Labor Statute

In 1999, California enacted a statute that permits World

War II forced and slave laborers to sue those companies for

which they were forced to work to benefit the Axis Powers’ war

effort. See Cal. Code Civ. Proc. § 354.6 (hereinafter cited as

“§ 354.6”) (App. 131-32). The statute provides that any “Second

World War forced labor victim” or “Second World War slave

labor victim,” or their heirs, “may bring an action to recover

compensation” for their labor. § 354.6(b) (App. 132). Forced

and slave labor victims are defined as people forced to perform

labor without pay by the “Nazi regime, its allies and

sympathizers, or enterprises transacting business in any of the

areas occupied by or under control of the Nazi regime or its

allies and sympathizers,” between 1929 and 1945. § 354.6(a)(1)

& (2) (App, 131). The statute creates and defines the recoverable

compensation based on market value plus compounded interest

computed without diminution due to “wartime or postwar

currency devaluation.” § 354.6(a)(3) (App. 131-32). The statute

provides that an “action brought under this section” shall not

(Cont'd)

Communiqué, which included the renunciation of “reparation{s].”

The PRC Treaty thus resolved the forced labor claims of PRC nationals.

See generally Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 275

(D.N.J. 1999) (under international law, “reparations” include individuals’

war-time forced labor claims against governments and private

businesses).

6. See The Views of the Government of Japan on the Lawsuits

against Japanese Companies by the Nationals of Countries Not Being

Parties to the San Francisco Peace Treaty, Tab 32 at 1785 (“The

Government of Japan has conducted normalization talks with North

Korea eight times from 1991 to 1992 and already three times after the

resumption of the negotiations in April 2000.”).

8

be dismissed on statute of limitations grounds if it is filed by

December 31, 2010. § 354.6(c) (App. 132).

C. Jeong’s Claims

Petitioner Jae Won Jeong asserts causes of action under

Section 354.6, and for unjust enrichment, injury in tort and unfair

business practices. Tab 1 at 15-18.’ Jeong, now a United States

citizen, alleges that he was a Korean college student in Tokyo

in 1943. Tab 1 at 11-12. He alleges that when he refused the

Japanese government’s order that he and other students report

to the Japanese military for service, he was detained by the

Japanese police and later sent to Korea. Tab 1 at 12. Once in

Korea, he was allegedly imprisoned by the Japanese “colonial”

government, and sent to a camp run by the government for

“(volunteer [soldier [t]raining.” Tab 1 at 12-13.

Jeong alleges that in 1944, he was transferred by

government authorities to a cement factory in Korea, which was

operated “by and for the benefit of the Japanese Onoda Cement

Manufacturing Company under the color of the Japanese

authority.” Tab 1 at 13. He alleges that “World War II imposed

great demands on the Japanese industry, which suffered from

an acute shortage of workers,” leading the Japanese government

to set up programs using “Korean nationals and Allied prisoners”

to perform forced labor. Tab 1 at 14. This was to “benefit[] the

Japanese war effort.” Jd. Jeong alleges that while at the factory,

he and other workers performed “hard physical labor,” for which

they were allegedly not paid. Tab 1 at 13. Jeong sued respondents

(collectively, “Taiheiyo”), alleging that they are successors to

Onoda.

7. The Court of Appeal held Jeong’s claims other than his cause of

action under Section 354.6 time-barred on state-law grounds.

See Taiheiyo Cement, 117 Cal. App. 4" at 398 n.10 (App. 26).

The Petition does not seek review of that holding.

D. Procedural History

1. Taiheiyo’s Motions for Judgment on the Pleadings

Taiheiyo moved for judgment on the pleadings, on the

- grounds that the 1951 Treaty, the 1965 Japan-Korea Claims

Treaty, and the political question doctrine bar Jeong’s claims.

Tab 5. The Superior Court denied the motion. App. 85-104.

Taiheiyo then filed a second motion for judgment on the

pleadings, on the grounds that Section 354.6 is an

unconstitutional interference with the federal government’s

exclusive authority over foreign relations,* and that due process

forbids the extraterritorial application of California law to

Jeong’s claims, which arose in East Asia during World War II.

Tab 22.

The United States filed a Statement of Interest in support

of Taiheiyo’s second motion for judgment on the pleadings. The

United States explained that Section 354.6 “is unconstitutional

because it impermissibly interferes with the United States’

exercise of its foreign policy powers and conflicts with

international obligations entered into by this nation at the close

of World War II.” Tab 32 at 1690. The government explained

that the 1951 Treaty “establish[ed] a diplomatic framework for

the resolution of claims by non-party nations,” Tab 32 at 1698,

and that “[i]n entering into the Treaty, the President and the

Senate clearly did not intend to leave any jurisdiction over war

claims or reparations to the States.” Tab 32 at 1699.

The Superior Court denied Taiheiyo’s second motion for

judgment on the pleadings, concluding that Section 354.6 was

constitutional because it had no direct impact on foreign

8. Taiheiyo’s second motion cited an intervening federal district

court decision that held Section 354.6 unconstitutional on foreign affairs

grounds. See Jn re World War II Era Japanese Forced Labor Litig.,

164 F. Supp. 2d 1160 (N.D. Cal. 2001), aff’d sub nom. Deutsch v. Turner

Corp., 324 F.3d 692 (9® Cir.), cert. denied sub nom. Kim v. Ishikawajima

Harima Heavy Indus., Ltd., 540 U.S. 820 (2003).

10

relations, and that due process did not bar the application of

Section 354.6 to Jeong’s claims. (App. 71-84).

2. Taiheiyo’s Petition for a Writ of Mandate

Taiheiyo petitioned for a writ of mandate in the California

Court of Appeal. The United States filed an amicus brief in

support of Taiheiyo’s petition. The United States argued that

Jeong’s claims under Section 354.6 are barred by the foreign

policy embodied in Articles 4(a) and 26 of the 1951 Treaty that

“both Korea and China were expected to settle, as the Allied

powers had, the war-related claims of themselves and their

nationals against Japan and its nationals.” Brief of the

United States as Amicus Curiae in Support of Petitioners (dated

Feb. 11, 2002), at 21. The government explained that

“California’s forced labor statute” is preempted because it

“runs directly contrary to the United States’ foreign policy of

relegating the war-related claims of Korean and Chinese

nationals to inter-governmental resolution.” Jd. The United

States also argued that the extraterritorial application California

law to Jeong’s claims would violate due process. Jd. at 35-40.

In its first opinion, the Court of Appeal acknowledged that

“(t]he 1951 Treaty ... provides that claims between Korean

and Japanese nationals were to be the subject of separate

arrangements between the two countries.” Taiheiyo Cement

Corp. v. Super. Ct., 129 Cal. Rptr. 2d 451, 459 (Ct. App. 2d

Dist. 2003) (App. 42). Nonetheless, the court held that Jeong’s

claims could proceed because “[nJothing in ... the 1951

Treaty expressly preempts or bars claims by Korean nationals

against Japanese corporations.” Jd. at 458 (App. 42) (emphasis

added). The court also held that Section 354.6 does not

unconstitutionally infringe on the federal government exclusive

authority to regulate foreign relations, and it rejected Taiheiyo’s

political question and due process arguments. Jd. at 465-72

(App. 47-69).

11

The California Supreme Court granted Taiheiyo’s petition

for review. Taiheiyo Cement Corp. v. Super. Ct., 66 P.3d 1231,

133 Cal. Rptr. 2d 147 (Cal. 2003). While review was pending,

this Court issued its decision in American Ins. Ass'n vy.

Garamendi, 539 U.S. 396 (2003). Garamendi held that a

California statute seeking to facilitate the resolution of World

War II era insurance claims was preempted by the federal

government’s foreign affairs powers. Jd. at 413-26. This Court

held that U.S. executive agreements that “embod[ied]” a foreign

policy to resolve World War II claims, but that “include[d] no

preemption clause,” were sufficient to preempt the California

law under the federal government’s foreign affairs power,

id. at 417, and the Court specifically upheld the power of the

federal government “‘to settle claims against foreign corporations

associated with wartime experience.” /d. at 416.

In the wake of Garamendi, the California Supreme Court

vacated the Court of Appeal’s first opinion and transferred the

case back to the Court of Appeal for reconsideration in light of

Garamendi. Taiheiyo Cement Corp. v. Super. Ct., 77 P.3d 2,

5 Cal. Rptr. 3d 31 (Cal. 2003). Following transfer, the United

States filed another amicus brief in support of Taiheiyo, arguing

that Jeong’s forced labor claims were clearly barred under

Garamendi. See Supplemental Brief of the United States as

Amicus Curiae in Support of Petitioners (dated Oct. 24, 2003).

In its second opinion, the Court of Appeal agreed that

Garamendi controls and requires Jeong’s lawsuit to be

dismissed: “Garamendi ... compels us to conclude section

354.6 is unconstitutional.” Zaiheiyo Cement Corp. v. Super. Ct.,

117 Cal. App. 4" 380, 387 (2004) (App. 6); see also id. at 400

(Rubin, J., concurring) (App. 30) (“we must” grant Taiheiyo’s

writ petition “under Garamendi’s compulsion’’). The Court of

Appeal held that “similar to the executive agreements in

Garamendi, Articles 4(a) and 26 [of the 1951 Treaty] embody

the federal purpose and foreign policy that WWII claims by

individuals of non-signatory nations were to be resolved through

12

diplomacy.” /d. at 392 (App. 16). Thus, under the reasoning of

Garamendi, “the treaty preempts section 354.6” because

allowing the claims of “WWII slave or forced labor victims to

be resolved in court ... conflicts with the foreign policy

expressed in the 1951 Treaty.” /d. at 398 (App. 26).

The California Supreme Court denied review. (App. 130).

REASONS FOR DENYING THE PETITION

I. THE PETITION SHOULD BE DENIED BECAUSE

THERE IS NO CONFLICT TO RESOLVE

The Court of Appeal in this case agreed with the Ninth

Circuit’s holding in Deutsch that World War II forced labor

claims under Section 354.6 are barred by the federal

government’s exclusive authority over foreign relations as

embodied in the 1951 Treaty. These decisions are binding

precedent on every state and federal trial court in California,

and Section 354.6 exists nowhere else. There is no conflict that

warrants this Court’s review. See Supreme Ct. R. 10(a), (b).

Deutsch upheld the dismissal of 29 World War II forced

labor cases, all asserting claims under Section 354.6, including

claims by former Korean nationals identical to those asserted

here. Deutsch, 324 F.3d at 708-16. Anticipating this Court’s

decision in Garamendi, the Ninth Circuit followed the long-

standing “constitutional principle that power over foreign affairs

is reserved to the federal government.” Jd. at 709. The court

observed that at the very core of the foreign affairs power lies

“the power of the federal government to make and to resolve

war, including the power to establish the procedure for resolving

war claims.” /d. at 711. In the context of World War II, the United

States exercised that power as to Japan in the 1951 Treaty of

Peace, which established “the federal government’s resolution

of disputes relating to the war.” Jd. at 714. The court explained

13

that the Treaty bars World War II forced labor claims by plaintiffs

of countries signatory and non-signatory alike:

It is immaterial that many of the Appellants are

nationals of two nations, China and Korea, that were

not signatories of the San Francisco treaty. When

the United States has been a party to a war, the

resolution it establishes to that war is the resolution

for the whole of the United States. States lack the

power to modify that resolution, regardless of the

citizenship of those seeking redress.

Id. at 714 n.14.

Four months after this Court issued its decision in

Garamendi, it denied all of the petitions for certiorari in Deutsch.

See Kim v. Ishikawajima Harima Heavy Indus., Ltd., 540 U.S.

820 (2003) (denying certiorari); Tenney v. Mitsui & Co., Lid.,

540 U.S. 820 (2003) (same); Ma v. Kajima Corp., 540 U.S. 820

(2003) (same); Saldajeno v. Ishihara Sangyo Kaisha, Ltd.,,

540 U.S. 821 (2003) (same).

The California Court of Appeal’s decision in this case

accords with Deutsch and follows Garamendi. The Court of

Appeal recognized the federal government’s exclusive authority

over foreign relations, as recently reaffirmed by Garamendi.

See Taiheiyo Cement, 117 Cal. App. 4" at 388-90 (App. 9-12);

see also Zschernig v. Miller, 389 U.S. 429 (1968). It agreed that

the 1951 Treaty established the resolution of World War II claims

against Japan and its nationals, id. at 390-94 (App. 13-19), and

it held that Jeong’s forced labor claim under Section 354.6 was

preempted by “th[is] expression of federal policy embodied in

the 1951 Treaty.” Jd. at 395 (App. 20).

The Court of Appeal’s decision also agreed with the

D.C. Circuit Court of Appeals in its analysis of the application

of the 1951 Treaty to the World War II claims of non-signatory

nationals, specifically former Korean nationals. See id. at 393-

14

94 (App. 18-19) (quoting Joo v. Japan, 332 F.3d 679, 681, 684-

85 (D.C. Cir. 2003), vacated on other grounds, 124 S. Ct. 2835

(2004)). Joo v. Japan similarly held that Articles 4(a) and 26 of

the 1951 Treaty “expressed a clear policy of resolving the claims

of [non-signatory] nationals through government-to-government

negotiation.” 332 F.3d at 685. Thus, there is no conflict over

the meaning of the 1951 Treaty.

The Petition does not contend there is a conflict for this

Court to resolve. There is none. The Petition ignores Deutsch

completely, even though it reached the same holding the

California Court of Appeal did here. Ironically, the Petition

criticizes the California Court of Appeal for its agreement with

the D.C. Circuit on the proper interpretation of the 1951 Treaty.

See Petition at 21 (chiding the Court of Appeal because it

“uncritically accepted” the D.C. Circuit’s interpretation of the

1951 Treaty).

Because there is no conflict that requires this Court’s

resolution, the Petition should be denied.

Il. THE PETITION SHOULD BE DENIED BECAUSE

GARAMENDI RESOLVES ALL OF PETITIONER’S

ARGUMENTS

The Petition’s principal argument is that the Court of Appeal

supposedly misinterpreted Garamendi. Petitioner could not be

more wrong. The Court of Appeal correctly recognized that

Garamendi “compels” the dismissal of Jeong’s Section 354.6

claim, Zaiheiyo Cement, 117 Cal. App. 4" at 398 (App. 26) —

indeed, that preemption in this case “is far more compelling”

than in Garamendi itself. Id. at 393 (App. 17) (emphasis added).

Because Garamendi resolves all of the arguments raised by the

Petition, certiorari should be denied.

A. Garamendi

Garamendi struck down California’s Holocaust Victim

Insurance Relief Act (“HVIRA”), holding the statute to be an

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15

unconstitutional intrusion on the federal government’s exclusive

power over foreign relations. HVIRA “require[d] any insurer

doing business in [California] to disclose information about all

policies sold in Europe between 1920 and 1945 by the company

itself or any one ‘related’ to it.” 539 U.S. at 401. This Court saw

a conflict between HVIRA and executive agreements between

the United States and Germany, which created a voluntary fund

to investigate the status of insurance policies issued to Holocaust

victims and to settle claims under those policies. See id. at

406-08.

The executive agreements in Garamendi “include[d] no

preemption clause,” and so the United States and the plaintiffs

in Garamendi “le[ft] their claim of preemption to rest on asserted

interference with the foreign policy those agreements embody.”

Id. at 417 (emphasis added).

In holding HVIRA unconstitutional, this Court began its

analysis with premises of constitutional law that “are beyond

dispute.” /d. at 413. First, of course, was the federal

government’s supreme power over foreign relations and the fact:

__ that at some point an exercise of state power that

touches on foreign relations must yield to the

National Government’s policy, given the “concern

for uniformity in this country’s dealings with foreign

nations” that animated the Constitution’s allocation

of the foreign relations power to the National

government in the first place.

Id. (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398, 427 n.25 (1964)).

The Court also recognized the undisputed “executive

authority to decide what that [foreign] policy should be,”

including the President’s long-standing “authority to make

‘executive agreements’ with other countries requiring no

ratification by the Senate or approval by Congress.” Jd. at 414.

16

The Court further held that the federal government’s

traditional authority over foreign relations applied to the claims

of private individuals against private companies arising out of

actions in wartime: “Vindicating victims injured by acts and

omissions of enemy corporations in wartime is thus within the

traditional subject matter of foreign policy in which national,

not state, interests are overriding, and which the National

Government has addressed.” /d. at 421.

With these premises, the Court held that HVIRA conflicted

with U.S. foreign policy as embodied in the executive

agreements. The agreements reflected a desire by the U.S.

“to encourage European governments and companies to

volunteer settlement funds in preference to litigation or coercive

sanctions.” Jd. HVIRA undermined that goal because it imposed

a broader disclosure requirement than the executive agreements

did and attached a monetary sanction for failing to comply.

Id. at 423-25.

The Court acknowledged that HVIRA’s basic purpose —

“obtaining compensation for Holocaust victims” — was “a goal

espoused by the National Government as well.” Jd. at 425.

Nonetheless, the fact that HVIRA imposed broader requirements

than the federal law, with a more severe economic penalty, was

sufficient to render the law unconstitutional under the foreign

affairs doctrine: “The basic fact is that California seeks to use

an iron fist where the President has consistently chosen kid

gloves.” Jd. at 427. Accordingly, the Court held HVIRA

preempted by the federal government’s exclusive authority over

foreign relations. Jd.

B. Garamendi Controls

The Court of Appeal was right that Garamendi controls.

Articles 4(a) and 26 embody the foreign policy “determination

that claims of non-signatory nations like Korea, and their

nationals, were to be resolved with Japan through government-

to-government negotiations.” Taiheiyo Cement, 117 Cal. App.

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4" at 398 (App. 26). Just as HVIRA was preempted because it

conflicted with the foreign policy embodied in the executive

agreements at issue in Garamendi, so too does Section 354.6

“conflict[] with the foreign policy expressed in the 1951 Treaty”

by encouraging the litigation of claims in California state courts

that the Treaty consigns to diplomatic resolution. /d.°

Jeong’s criticisms of the Court of Appeal’s decision are’

meritless and foreclosed by Garamendi itself.

1. The Foreign Policy Embodied In the Treaty

Petitioner acknowledges that Article 4(a) of the 1951 Treaty

states that the World War II claims of non-signatory nationals

“shall be the subject of special arrangements between Japan

and ... [Korean] authorities.” Petition at 17 (quoting Article

4(a)). He does not dispute that his claims fall within Article

4(a). Nor does he deny that litigating his Section 354.6 claim in

state court is the antithesis of “special arrangements” arrived at

through diplomatic negotiation between Japan and Korea.

Those facts are dispositive. Given the plain language of

Article 4(a) — and the obvious incompatibility between resolving

a claim through intergovernmental negotiation, on the one hand,

or litigation in state court, on the other — Jeong’s assertion that

9. Garamendi also controls for a second reason. In addition to the

“conflict” theory of foreign affairs preemption that was the basis for

striking down HVIRA, Garamendi recognized a “field” preemption

theory under Zschernig v. Miller, 389 U.S. 429 (1968):

If a State were simply to take a position on a matter of

foreign policy with no serious claim to be addressing a

traditional state responsibility, field preemption might be

the appropriate doctrine, whether the National Government

had acted and, if it had, without reference to the degree of

any conflict.

Garamendi, 539 U.S. at 419 n.11. Here, as the Ninth Circuit properly

held, Section 354.6 is also invalid under Zschernig “field” preemption.

See Deutsch, 324 F.3d at 708-16.

18

the 1951 Treaty does not embody a foreign policy that preempts

his claims is meritless.

Jeong’s argument that the 1951 Treaty is not quite clear

enough in preempting his claims is foreclosed by Garamendi.

In essence, Jeong argues that it was not sufficient for the

President to propose, and the Senate to ratify, a treaty expressly

stating that his forced labor claim “shall” be resolved through

negotiations between Japan and Korea. Petition at 17.

Rather, according to Jeong, the United States was required to

also expressly state that the Treaty preempts state-law claims

that are inconsistent with this diplomatic resolution. Petition at

16-17. That argument, however, is directly contrary to

Garamendi. Garamendi struck down California’s HVIRA

precisely because it interfered with “the foreign policy those

[executive] agreements embody,” even though “the agreements

include no preemption clause.” 540 U.S. at 417 (emphasis

added).

2. The Executive’s Interpretation Of The Treaty

The bulk of the Petition consists of criticisms of the

Executive Branch’s interpretation of the 1951 Treaty and of the

Court of Appeal for supposedly deferring to that interpretation.

Jeong accuses the government of being inconsistent in its

interpretation of the Treaty; he complains the government’s

position was created only for litigation; and he asserts that

allowing the Executive Branch’s interpretation of a treaty to

bar his claims would violate “basic principles of separation of

powers and federalism” by transferring “authority from the

States and Congress to the Executive.” Petition at 22.

All of Jeong’s arguments ignore the fact that the foreign

policy that bars his claims was established in the 1951 Treaty

itself, not by unilateral executive action. “After all,” the Court

of Appeal explained, “rather than unilateral presidential

agreements, we are dealing with federal policy expressed

through a ratified treaty, the ultimate formal expression of the

19

federal executive and legislative branches in matters of foreign

policy.” Taiheiyo Cement, 117 Cal. App. 4" at 393 (App. 17)

(emphasis added); accord, Mitsubishi Materials, 113 Cal. App.

4" at 79 (“If, in Garamendi, the high court would see no

constitutional impediment to the federal executive's efforts to

compromise property claims of civilian Holocaust victims, then

a fortiori there can no constitutional impediment where a treaty

(not just the unilateral efforts of one administration)

compromises claims’’) (emphasis original). That is precisely why

preemption in this case “is far more compelling” than in

Garamendi. Taiheiyo Cement, 117 Cal. App. 4" at 393

(App. 17).

It is ironic — indeed, doubly ironic — that Jeong’s principal

criticism of the Court of Appeal’s decision is for its supposedly

unwarranted deference to the Executive Branch. There is not a

word in the Court of Appeal’s opinion that suggests that the

Court actually did defer to the Executive in its interpretation of

the Treaty. In concluding that the 1951 Treaty embodies a foreign

policy that Jeong’s claims must be resolved through diplomatic

negotiation, rather than litigation, the Court of Appeal cited only

the language of the Treaty, other court decisions interpreting

the Treaty, and a Senate Executive Report from the time of the

Treaty’s ratification. Taiheiyo Cement, 117 Cal. App. 4" at

390-94 (App. 13-19). Thus, Jeong’s insistence that there must

be “an independent judicial determination” of what the Treaty

means, as opposed to mere deference to the Executive,

see Petition at 24, is precisely what the Court of Appeal

already did.

The second irony in Jeong’s critique of deferring to the

Executive is that he is really criticizing Garamendi, not the Court

of Appeal’s decision in this case. It was Garamendi, after all,

that held that executive agreements “requiring no ratification

by the Senate or approval by Congress” can preempt state law

and “settle [war] claims.” 540 U.S. at 415.

20

In any event, Jeong’s criticism of the government is baseless.

The federal government has argued throughout this case that

Jeong’s claims under Section 354.6 are preempted by the foreign

policy embodied in the 1951 Treaty. See, e.g., Brief of the

United States as Amicus Curiae in Support of Petitioners

(dated Feb. 11, 2002), at 20-24. More generally, the United States

has consistently advocated for the dismissal of a// World War II

forced labor claims on the ground that they must be resolved

through intergovernmental negotiation. Jwanowa vy. Ford Motor

Co., 67 F. Supp. 2d 424, 486 (D.N.J. 1999) (“The executive

branch has always taken the position that claims arising out of

World War II must be resolved through government-to-

government negotiations.”).

The United States’ position is both correct and entitled to

deference. Articles 4(a) and 26 of the 1951 Treaty “expressed a

clear policy of resolving the claims of [non-signatory] nationals

through government-to-government negotiation,” Joo, 332 F.3d

at 685, and that policy preempts state-law claims under Section

354.6. Deutsch, 324 F.3d at 714 n.14. Were there any doubt

about the policy expressed in the 1951 Treaty, and there is not,

“the meaning attributed to [it] by the Government. . . is entitled

to great weight.” Sumitomo Shoji Am., Inc. v. Avagliano,

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

The government’s position is particularly persuasive in this

case because both the United States and Japan agree that state-

law claims under Section 354.6 conflict with the policies

embodied in the 1951 Treaty. In a formal diplomatic protest to

the United States Department of State, the Government of Japan

explained that:

Articles 4(a) and 26 of the Peace Treaty specifically

provide that the claims of non-parties to the treaty

such as China and Korea and those of their nationals

were also to be addressed through government-to-

government negotiations, not individual damage

claims. However, the State of California established

21

a mechanism where any person meeting the criteria

set forth in section 354.6 can assert individual claims

against Japanese nationals in California. [§ ] If

upheld, section 354.6 would nullify the provisions

of the Peace Treaty. . . .

The Views of the Government of Japan on section 354.6 of

Code of Civil Procedure of the State of California ff 4, 3,

attached as exhibit B to the United States’ Request for Judicial

Notice, dated March 5, 2003. See Taiheiyo Cement Corp. v.

Super. Ct., 66 P.3d 1231, 133 Cal. Rptr. 2d 147 (Cal. 2003)

(granting this request for judicial notice).

The fact that both the United States and Japan agree that

the 1951 Treaty embodies a foreign policy at odds with Section

354.6 — and that the language of the Treaty accords with their

mutual interpretation —- makes the government’s position

especially persuasive: “When the parties to a treaty both agree

as to the meaning of a treaty provision, and that interpretation

follows from the clear treaty language, we must, absent

extraordinarily strong contrary evidence, defer to that

interpretation.” Sumitomo Shoji, 457 U.S. at 185; see also

Garamendi, 540 U.S. at 424-25 (statements by U.S., German

and Swiss governments that California’s HVIRA frustrated the

operation of the federal executive agreements were evidence

that the California law was preempted).

The United States did not assert a contradictory position in

the Superior Court, contrary to Jeong’s argument.

The government has consistently argued that all of Jeong’s

claims under California law are preempted by the federal

government’s exclusive authority over foreign relations, as

embodied in the 1951 Treaty, and that any claims he might have

had under federal law are long since time-barred. E.g., Tab 36

at 1890; Tab 32. There is nothing “inconsistent” or “incoherent”

in this position, see Petition at 20, and indeed the United States

Court of Appeals for the Ninth Circuit agreed with the

government. See Deutsch, 324 F.3d at 706-18 (holding Section

22

354.6 unconstitutional on foreign affairs grounds and holding

claims under the federal Alien Tort Claims Act, 28 U.S.C.

§ 1350, time-barred).

3. Balancing State Interests

Jeong next criticizes the Court of Appeal for supposedly

failing to balance “the national policy toward non-signatories

embodied in the 1951 Treaty” against “California’s traditional

and powerful interest in administering litigation in its courts.”

Petition at 25-26. But Jeong is mistaken in claiming that

Garamendi requires any such balancing. Garamendi held that

“(t]he express federal policy and the clear conflict raised by the

state statute are alone enough to require state law to yield.”

540 U.S. at 425 (emphasis added). The Court of Appeal

followed Garamendi and reached the same conclusion here.

Taiheiyo Cement, 117 Cal. App. 4" at 394-96 (App. 19-22).

Jeong is also wrong in suggesting that the Court of Appeal

did not consider the supposed state interests California had in

adopting Section 354.6. Jeong contends that “Section 354.6

vindicates the right of individuals to seek redress of individual

grievances,” Petition at 26, and he argues that there is a

“long history of state control of litigation, including litigation

that involves disputes affected by war.” /d. at 27.

Jeong ignores both the Court of Appeal’s decision and

Garamendi. The Court of Appeal acknowledged that Section

354.6 is designed to redress individual grievances, but held that

is precisely why it is preempted: Section 354.6, “while noble,

conflicts with the federal policy embodied in” the 1951 Treaty

that the World War II claims of non-signatory nationals were to

be resolved through diplomatic negotiation, not litigation.

Taiheiyo Cement, 117 Cal. App. 4" at 396 (App. 22); see also

Garamendi, 540 U.S. at 426-27 (acknowledging the “humanity”

of California’s interest in redressing the grievances of the

estimated 100,000 Holocaust survivors living in the state, but

23

holding HVIRA preempted because of its “conflict with national

policy”).

Similarly, Jeong’s assertion that states have a generalized

ability to enact their own statutes of limitations'® and interpret

contracts with aliens, see Petition at 26-27, both ignores the

reality of his claims and overstates the Court of Appeal’s holding.

Jeong is asserting a claim for war reparations. See Deutsch, 324

F.3d at 712. His attempt to analogize this lawsuit to a minimum

wage claim or some other traditional exercise of the state’s police

power, see Petition at 26, borders on farcical. Section 354.6

does not apply at all to conduct that occurred in California or

even in the United States. It applies only to forced labor claims

in Axis-controlled territory during World War II. § 354.6(a)(1),

(2) (App. 131). As Garamendi held, “[v]indicating victims

injured by acts and omissions of enemy corporations in wartime

is thus within the traditional subject matter of foreign policy in

which national, not state, interests are overriding.” 540 U.S. at

421 (emphasis added).

Jeong also exaggerates the Court of Appeal’s holding.

The court did not question, or even address, a state’s general

ability to provide a forum for aliens to assert claims under

10. Jeong’s argument takes for its premise that Section 354.6 merely

extends the statute of limitations on previously existing World War II

claims. In fact, at least one California Court of Appeal, as well as the

Ninth Circuit, have held that the statute actually “creates new claims

that would not otherwise exist.” Mitsubishi Materials, 113 Cal. App. 4"

at 59 (emphasis original); Deutsch, 324 F.3d at 707-08. The Court of

Appeal in this case found it unnecessary to decide whether Section 354.6

is procedural (as Jeong contends) or substantive (as all other courts have

held) because under either interpretation, it “conflicts with the federal

policy embodied in Articles 4(a), 14(b), and 26 of the 1951 Treaty” and

is preempted. Zaiheiyo Cement, 117 Cal. App. 4" at 396 (App. 22).

Because Jeong’s claims are for war reparations, they could never have

been brought under state law prior to the adoption of Section 354.6, and

the Petition is incorrect in describing the statute as an “extension” on

the limitations period for some unspecified, previously nonexistent state-

law claim. See Mitsubishi Materials, 113 Cal. App. 4" at 59.

24

international law. Rather, it held that Jeong’s claims under

Section 354.6 in this case are preempted because they conflict

with the foreign policy embodied in the 1951 Treaty. Taiheiyo

Cement, 117 Cal. App. 4" at 394-96 (App. 19-22).

In sum, the outcome of this case is dictated by Garamendi.

None of petitioner’s arguments warrants review.

Il. ALTERNATIVE GROUNDS FOR DISMISSAL

MAKE CERTIORARI INAPPROPRIATE

Certiorari is additionally inappropriate because the same

outcome — dismissal! of this case — is also required by other

constitutional doctrines briefed in the courts below and not

discussed in the Petition: the political question doctrine and

due process limitations on the extraterritorial application of

California law.

A. Political Question

Jeong’s claims for war-time forced labor against enemy

nationals, arising out of Japan’s World War II conscription

program, would require the courts of California to revisit and

revise U.S. foreign policy toward compensation for the harms

inflicted by Japan and its nationals during World War II. Any

court purporting to undertake this task would place itself in

conflict with the nation’s foreign policy — which has strived for

the resolution of World War II claims through bilateral

negotiations, rather than piecemeal litigation — and would

necessarily interject itself into an inherentiy political task,

committed exclusively to the political branches of the federal

government for resolution.

“The conduct of the foreign relations of our government is

committed by the Constitution to the executive and legislative

— ‘the political’ — departments of the government, and the

propriety of what may be done in the exercise of this political

power is not subject to judicial inquiry or decision.” Oetjen v.

Central Leather Co., 246 U.S. 297, 302 (1918); see generally

25

Baker v. Carr, 369 U.S. 186, 210-11 (1962). Following this

Court’s precedent, numerous courts have held that “forced labor

_ claims arising out of World War II raise nonjusticiable political

questions.” /wanowa, 67 F. Supp. 2d at 483; Kelberine v. Societe

Internationale, 363 F.2d 989, 995 (D.C. Cir. 1966); Alperin v.

Vatican Bank, 242 F. Supp. 2d 686, 690-95 (N.D. Cal. 2003);

In re Nazi Era Cases Against German Defendants Litig.,

129 F. Supp. 2d 370, 275-84 (D.N.J. 2001); Burger-Fischer v.

Degussa AG, 65 F. Supp. 2d 248, 272-85 (D.N.J. 1999); compare

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1235

(11" Cir. 2004) (political question doctrine inapplicable where

“the plain text” of federal executive agreements “anticipates

that federal courts will consider claims”).'' Jeong’s claims are

similarly nonjusticiabie.'?

B. Due Process

Jeong’s claims are also barred by the Due Process clause.

All of his claims are based on California law, but due process

forbids the application of California law to events occurring

outside of the state between parties that, at the time, had no

connection to California. See Gerling Global Reins. Corp. v.

Gallagher, 267 F.3d 1228, 1238 (11" Cir. 2001).

Here, the conduct at issue is wholly unconnected to

California. Jeong’s claims arose more than a half-century ago

on the other side of the world. Jeong himself had no connection

11. This application of the political question doctrine is binding

on California state courts both as a matter of federal law, see United

States v. Pink, 315 U.S. 203, 222-23 (1942) (“the conduct of foreign

relations is committed by the Constitution to the political departments

of the Federal Government’) (emphasis added), and because California

itself applies the political question doctrine in state court. See, e.g.,

Spindulys v. Los Angeles Olympic Organizing Comm., 175 Cal. App. 3d

206, 209-10 (1985).

12. The Court of Appeal’s original opinion rejected the political

question doctrine, but did not discuss or purport to distinguish any of

these precedents. Taiheiyo Cement, 129 Cal. Rptr. 2d at 470-72

(App. 66-69).

26

to California at the time — he was a Korean national (and

Japanese subject) resident in Japan. His conscription and forced

labor occurred entirely in Japan and what is now North Korea.

Long args, not_allege that Taiheiyo’s predecessor had an

connection with California at the time, or that any of the

California-based defendants even existed during World War II.

None of the parties could “reasonably have anticipated that their

actions would later be judged” by California law. Allstate Ins.

Co. v. Hague, 449 U.S. 302, 327 (1981) (Stevens, J., concurring).

Applying California law would be arbitrary and unfair — the

hallmark of a denial of due process."*

IV. OBJECTIONS TO THE QUESTION PRESENTED

FOR REVIEW

Finally, certiorari is inappropriate because the question on

which Jeong seeks review is not presented by this case.

See Supreme Ct. R. 15(2). The Petition seeks review of a

California Court of Appeal decision holding preempted

“a California law extending the limitations period for wartime

labor and personal injury claims ... where the Treaty itself

contains no express preemption.” Petition at i (emphasis added).

That “Question Presented” inaccurately describes Section 354.6

and ignores the language of the 1951 Treaty. As noted above,

California’s Section 354.6 creates a new substantive cause of

action for World War II forced labor; it is not merely an extension

of the statute of limitations for some unspecified pre-existing

claim. See n.10, supra. Further, Articles 4(a) and 26 do expressly

embody a foreign policy that preempts Jeong’s claims.

13. The Court of Appeal’s original opinion rejected Taiheiyo’s due

process argument on the theory that Section 354.6 is merely an extension

of the statute of limitations, and a state may apply its own statute of

limitations to claims in its courts, even if the substance of the claims

arose out of state. Zaiheiyo Cement, 129 Cal. Rptr. 2d at 468-70

(App. 60-65). In its second opinion, the Court of Appeal retreated from

its holding that Section 354.6 is merely an extension of the statute of

limitations, noting instead that two appellate courts have held that it

creates a new cause of action. See n.10, supra.

27

CONCLUSION

The Petition presents no basis for review. There is no

conflict among the lower courts for this Court to resolve.

Garamendi controls the outcome here, as the California Court

of Appeal properly held.

Respectfully submitted,

MatTHEW Epwarp DicBy

Counsel of Record

Heipi A. Leiper

BinGHAM McCutcHen LLP

355 South Grand Avenue, Suite 4400

Los Angeles, CA 90071-3106

(213) 680-6400

Counsel for Respondents

Taiheiyo Cement Corporation,

Taiheiyo Cement U.S.A., Inc.,

California Portland Cement Co.,

Glacier Northwest, Inc.

(f/k/a Lone Star Northwest, Inc.)