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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1089

## Text

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

al ME cinncces deus cadaesds needa
Oe OE oo ccccccnedeecdsaesus

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

vil

Cited Authorities
Page

Statutes

Alien Tort Claims Act, 28 U.S.C. § 1350 ........ 22
Cab. Ce Cae, FIOR. © BIRD ccccccncvecocsones passim
Rules

Sha SN Gs NEED. Whe esa vekduetneses saaaus 12
eke Ree B= PPererererrvrrirr rs 12
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 . 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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1440%3A2. Public record. Not legal advice.