Opposition Brief — Aizawa v. Japan

Supreme Court, U. 8.

~ FILED

a AUG 97 1997

No. 97-161 on

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

MASAMI AIZAWA,

Petitioner,

Vv.

THE SOVEREIGN STATE OF JAPAN, ET AL.

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

WILLIAM A. BRADFORD, JR.*

DAVID G. LEITCH

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5660

* Counsel of Record Counsel for Respondents

i

QUESTION PRESENTED

Petitioner filed an untimely notice of appeal from an

order of the district court dismissing this case with

prejudice on the basis of foreign sovereign immunity,

and the Ninth Circuit dismissed his appeal for lack of

jurisdiction.

The question presented is whether the district court’s

order granting dismissal was final and appealable, even

though one party was inadvertently omitted from the list

of parties as to which dismissal was granted, where it is

clear from the record that the district court intended the

dismissal order to be its final order in the case.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........2-s-ssssssessessessessenseencensensnerensenenns i

TABLE OF AUTHORITIEG..........::ccsssessssersseeeesensenensessenenaeres ili

INTRODUCTION .......-::sccssesssssescessescssencssnssssensensensnsnssnssensnncenses ]

COUNTERSTATEMENT .......-:::sssssssssssessereenensennsnanessnesnnsneenees 2

REASONS FOR DENYING THE WRIT .......2.-::::sseeresssesseesseees 7

CONCLUSION ........:-scsccessesssssseecsncscssenscessnssnsnnssessessnssnsennensenees 17

APPENDIX:

Order of the United States District Court for the Central

District of California, dated June 24, 1996

lll

TABLE OF AUTHORITIES

Page

CASES:

Argentine Republic v. Amerada Hess Shipping Corp.,

EP ee Re iin teas Ninehacintaleinesecteii 3

Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978)............. 8

Behring Int'l, Inc. v. Imperial Iranian Air Force, 475

Fe Be Re I ciicnserhaiatistinteaniisilicnietnteapeinssensan 15

Browder v. Director, Dep't of Corrections, 434 U.S.

yi Xk, 2, | QReP RMR ene oie Cert He ORSEin nr ee gn ene 5

Burgett v. Texas, 389 U.S. 109 (1967)........ccscssesseeeseeeeees 8

Chiari v. City of League City, 920 F.2d 311 (Sth Cir.

SPIO ssvaciciesitiheieiteisslscieientacibsa aided aicadion Sefhcan iestatnaiatdssNintion 9

F. & H.R. Farman-Farmian Consulting Eng’rs Firm

v. Harza Eng’g Co., 882 F.2d 281 (7th Cir. 1989),

cert. denied, 497 U.S. 1038 (1990)...............ccscssrssscseseeee 9

Fiataruolo v. United States, 8 F.3d 930 (2d Cir. 1993)..... 9

First Nat'l City Bank v. Banco Para el Comercio

Exterior de Cuba, 462 U.S. 611 (1983)..........:cccscesseeeeees 14

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co.,

co dk |, | RSI Aire tony er 8

Gerritsen v. De La Madrid Hurtado, 819 F.2d 1511

ee Ie Mccishensieidipitliseiscapintinspiamiaapnniadesissindenes 10, 15

Gibbons v. Republic of Ireland, 532 F. Supp. 668

ir PED iiiciticncigabenredbanasinlghiailibisald aches tiaittiinivisenens 14

Hasbrouck v. Texaco, Inc., 879 F.2d 632 (9th Cir.

cients disevinaninaiedcaleadedteaneieailiadeas lana aaitiatdeiitesnnce 13

Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559 (11th

Ge EF ccd sisi igsacaacahaccccansatapeibiaea dua tind eiasiaticidaniasnntoninn 14

Hester Int'l Corp. v. Federal Republic of Nigeria, 879

eB AR, ore ee eee ee 14

Martinez v. Winner, 771 F.2d 424 (10th Cir. 1985),

vacated & remanded, 475 U.S. 1138 (1986),

vacated as moot, 800 F.2d 230 (10th Cir. 1986)............ 15

McKesson Corp. v. Islamic Republic of Iran, 52 F.3d

346 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 704

Fi ertansasiescisinsasaicdiniahceatbibnitaba Dl iibeididinvglapiaasanerasauesinn 14

National Distrib. Agency v. Nationwide Mut. Ins. Co.,

Be oe Re SOR PUTED snctncktndsicnitebaacsivesnsosexacnsnaon 9

Ryder v. United States, 515 U.S. 177 (1995)...........s:cc00000 14

Saudi Arabia v. Nelson, 507 U.S. 349 (1993)...........200000 3

iv

TABLE OF AUTHORITIES -- Continued

Page

Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994) ...----eee-see-+ 9

Tucker v. Whitaker Travel, Inc., 620 F. Supp. 578

(E.D. Pa. 1985), aff 'd, 800 F.2d 1140 (3d Cir.)

(table), cert. denied, 479 U.S. 986 (1986) ....-.eeeeeceeeeeees 15

Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp.

398 (E.D. Va. 1984)...----cssssesssccrssesssssnnsensasetnnsennassenssesess 15

Witherspoon v. White, 111 F.3d 399 (Sth Cir. 1997)......... 11

STATUTES:

QB U.S.C. § 1291 ...oesssssneensscersresennerscsnssensenssenssoncnsenseensseree 8

Foreign Sovereign Immunities Act, 28 U.S.C. §§

NIE as ccrososnenesotinsncsrvnnsnnapnennncrancantvegeosaverrtennts 3

DB U.S.C. § 1603 ...-..n-cvecossncsnssenessnsensennennsensenncrnnconoresennseet 14

QB U.S.C. § 1603(b) ..-sescsecersssssssernsersseneenssnnsnnenncnnnennnsessess 15

QB U.S.C. § 1604 .......scvscssscvsssecennsensensssnsenscnnnnecensonssensseerees 3

2B U.S.C. § 1605 ..n-cccs-nvscnsenvsssnsecnsssnvesnsseneesnernscensccasconaesers 3

DB U.S.C. § 1608 ......--scssssscvsssnsensesnseensensensennssnscnasensensoessens 14

RULES:

Oth Cin, R. 27210 ..nscece-cvsnsonsssenssncseceneneserecsenenoracsosenensoosoneess 16

Fed. R. App. P. 4(a)(1) ----+ssssssessersssssssensensennssnnscnnnennsnnssnsee 5

Fed. R. Civ. P. 54(a)....-:sscsscsseossssesensessnveneenensnunsncenennsnsssoeers 11

Fed. R. Civ. P. 54(D)....-.--:-scesevessssnensesensenrensnssnsensensnncasooooers 12

Fed. R. Civ. P. 58 .....:.scsseesessesneesseeees + a eunnnmnaaet 8

Fed. R. Civ. P. 60(a)......---scsseseserssnsenseseneenennenscncenenscncssreee 13

S Oe, BR. BOR) onnesennseennnscsenssassnnsencecssenevorscsnscrnsoncossnwasnsseerens 7

S.Ct. R. 14.1 (i) di) .n--esseseeceeeseenesnsensennencenennennennsensnncnncnnsenees 5

OTHER AUTHORITY:

Robert L. Stern, et al., Supreme Court Practice § 4.17

(Tt ed. 1993)....cssvsssssssssnnsseseesersnnnsssennnnnnnssssconnnnnnseeeeeee 8

enamine”

IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1997

No. 97-161

MASAMI AIZAWA,

Petitioner,

Vv.

THE SOVEREIGN STATE OF JAPAN, ET AL.

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

Respondents the Sovereign ‘State of Japan, the Japa-

nese Ministry of Justice, the Japanese Ministry of For-

eign Affairs, the Supreme Prosecutor’s Office of Japan,

the Ishinomaki District Public Prosecutor’s Office, and

the Sendai High Public Prosecutor’s Office respectfully

request that the Court deny the petition for a writ of

certiorari seeking review of the decision of the United

States Court of Appeals for the Ninth Circuit in this

case.

INTRODUCTION

In what amounts to making to a last second “Hail

Mary” pass, petitioner has seized upon a what was

obviously an unintentional clerical error in an order

entered by the district court in an effort to stave off the

2

consequences of his failure to file a timely notice of

appeal from the court’s final judgment. Both of the

courts below have considered the issue that petitioner

now brings to this Court and found it meritless. Because

that assessment is correct, and because this case presents

none of the factors that typically prompt this Court’s

exercise of its certiorari jurisdiction, review of the Ninth

Circuit’s decision in this case is clearly unwarranted.

Following the district court’s dismissal of petitioner’s

suit against respondent the Sovereign State of Japan and

several of its Ministries and Offices on the ground of

foreign sovereign immunity, petitioner filed an untimely

notice of appeal, and the Ninth Circuit dismissed the

appeal for lack of jurisdiction. Petitioner now maintains

that the district court never entered a final judgment—

and hence that the time to appeal never began to run—

because one of the district court’s orders related to its

dismissal of the case failed to list one of the respondents,

the Japanese Ministry of Justice. As shown below,

however, it was abundantly clear to all concerned that

the district court intended to, and did, dismiss the case as

to all parties.

Following the dismissal of his appeal by the Ninth

Circuit, petitioner—citing for the first time the district

court’s omission of the Ministry of Justice in its order—

returned to the district court and asked for the entry of

final judgment. The district court rejected the request on

the ground that final judgment had already been entered

and the Ninth Circuit summarily affirmed that decision

on appeal in an unpublished order. Petitioner now seeks

review by this Court.

COUNTERSTATEMENT

Petitioner commenced this action in the United States

District Court for the Northern District of California on

April 13, 1994, naming as defendants respondent the

Sovereign State of Japan, two Assistant United States

Attorneys—Lawrence §. Middleton and Terrance A.

3

Bowers—and 100 fictitious parties, “Does 1-100.” See

Plaintiff's Unverified Complaint For Money Damages.

On January 6, 1995, petitioner filed an amended com-

plaint adding five Japanese Ministries and Offices and

dropping Middleton and Bowers as defendants. See

Plaintiff's First Amended Unverified Complaint. The

five Ministries and Offices were respondents the Japa-

nese Ministry of Justice, the Japanese Ministry of For-

eign Affairs, the Supreme Prosecutor’s Office of Japan,

the Ishinomaki District Public Prosecutor’s Office, and

the Sendai High Public Prosecutor’s Office. Id. { 4.

In his complaint, petitioner—a Japanese national resid-

ing in California, id. { 3—asserted several claims, all of

which were said to have arisen from an alleged conspir-

acy between respondents and the United States Attor-

ney’s Office for the Central District of California to have

petitioner extradited to Japan. Id. | 9-10. Years ago

petitioner was convicted of violating Japan’s Public

Office Election Laws, id. f§ 11, 12, but he alleged that

these were non-extraditable offenses. Jd. ¥ 9.

On December 11, 1996, the nonfictitious respondents

—all of the nonfictitious respondents, including the

Ministry of Justice—moved to dismiss the case for lack

of jurisdiction under the Foreign Sovereign Immunities

Act (“FSIA”), 28 U.S.C. §§ 1602-1611.! See Defen-

1 Under the FSIA, “a foreign state shall be immune from the

jurisdiction of the courts of the United States,” 28 U.S.C. § 1604,

unless one of the FSIA’s enumerated exceptions applies, see id.

§ 1605. The FSIA “provides the sole basis for obtaining jurisdic-

tion over a foreign state in the courts of this country.” Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443

(1989). Thus, “unless a specified exception applies, a federal

court lacks subject-matter jurisdiction over a claim against a

foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).

In Nelson this Court held that a claim based on alleged torture

and detention by the Saudi government did not establish jurisdic-

tion under the FSIA, explaining that foreign sovereigns have

immunity with respect to the exercise of powers peculiar to

sovereigns as distinct from those powers that can also be exercised

4

dants’ Notice of Motion and Motion to Dismiss Com-

plaint Pursuant to F.R.C.P. 12(b)- On June 24, 1996,

following a hearing at which petitioner was represented

by counsel, the district court granted respondents’

motion, ruling that respondents were shielded by sover-

eign immunity, and dismissed the action.

From the transcript of the hearing it is clear that the

court intended to dismiss the case as to all parties.

During the hearing, counsel for petitioner recognized

that the court was inclined to grant the motion to dismiss

and that it would be necessary to litigate the issue of

respondents’ sovereign immunity on appeal. See Tr. of

June 24, 1996 Hrg. at 10 (“I know Your Honor disagrees

with our position. And so I—as I said, I think this just

has to go to the Ninth Circuit and have them pass on all

these issues”). At the end of the hearing, in a colloquy

with counsel for petitioner, the court granted the motion

to dismiss on the heels of counsel’s declaration that he

wanted to take the case to the Ninth Circuit (id. at 11):

MR. ORD: Your Honor, I realize you’ve thought this

out very carefully and I certainly respect your views

and as I say, I think probably the best thing at this

point is to—is for my client to take it up to the Court

of Appeals if he wants to and try to get a definitive

resolution on these doctrines.

THE COURT: Well, Okay. I’m going to give you the

definitive resolution at this judicial level then.

MR. ORD: Yes sir.

by private citizens. See id. at 359-362. As noted, the gravamen of

petitioner’s complaint is that the government of Japan conspired

with American prosecutors to have him extradited. Clearly,

private citizens have no power to request the extradition of other

citizens from foreign countries. Cf. id. at 362 (“Exercise of the

powers of police and penal officers is not the sort of action by

which private parties can engage in commerce”).

5

THE COURT: The motion to dismiss is granted with-

out leave to amend. The action’s dismissed and I just

signed the order here. My clerk will send you copies

of the minute order and the order.

In the minute order to which the court referred (“the

June 24 order”), the district court included a memoran-

dum opinion clearly stating that “[t]he motion to dismiss

of all named defendants is granted without leave to

amend on the ground of sovereign immunity and the

action is dismissed by order signed and filed this date.”

App., infra, at 1a (emphasis added).

The dispute remaining in this case turns on the other

order that the district court filed on June 24 and entered

on June 26, 1996 (“the June 26 order”). See Pet. App. 4.

In that order, the court said that “[tJhis action is dis-

missed with prejudice” and that “[tJhis Order is a final

judgment for purposes of Fed. R. Civ. P. 54(a).” Id.

The court’s docket entries likewise reflect that this was

an order “terminating case.” Docket Entry No. 48. In

the June 26 order (and the docket entry), however, the

Japanese Ministry of Justice was omitted in the list of

defendants as to which dismissal had been granted.

Also, the June 26 order was captioned “order dismissing

action as to certain defendants.” Pet. App. 4 (emphasis

added). ~

On August 20, 1996, almost two months after the dis-

trict court had dismissed the action, petitioner filed a

notice of appeal—well after the time for filing such a

notice had expired. See Fed. R. App. P. 4(a)(1) (notice

of appeal in a civil case where the United States is not a

party must be filed within 30 days of entry of judgment);

Browder v. Director, Dep’t of Corrections, 434 U.S.

257, 264 (1978) (timely notice of appeal is mandatory

and jurisdictional). In his notice, petitioner recited that

2 Respondents have reproduced the June 24 order in an appen-

dix, even though petitioner did not, because it is a “relevant”

opinion and order. S. Ct. R. 14.1(i{ii).

6

he was appealing “the decision and order entered by the

U.S. District Court for the Central District of California

on June 26, 1996.” Notice of Appeal at 1. Respondents

moved to dismiss the appeal, explaining that petitioner

had failed to notice his appeal within the 30-day time

limit. Rather than respond directly, on October 15,

1996, petitioner, through counsel, moved for an exten-

sion of time in which to file a response. Petitioner’s

submission stated that his notice of appeal had been filed

“within 60 days of the June 26, 1996, order.” Appel-

lant’s Motion for Extension of Time to File Response to

Motion to Dismiss § 1. In that submission, petitioner

said nothing about the omission of the Ministry of

Justice from the June 26 order. On October 23, 1996,

the Ninth Circuit dismissed the appeal for lack of juris-

diction. Pet. App. 5.

Searching for a way out of the predicament he had

made for himself, on November 8, 1996, petitioner filed

a motion in the district court styled a “Motion for Entry

of a Final Judgment.” Pet. 5. In that motion, petitioner

for the first time pointed out that the Ministry of Justice

had not been listed in the June 26 order and took the

position that, because of this omission, the district court

“had not yet entered a final judgment” in this case and

therefore his appeal to the Ninth Circuit was “a legal

nullity.” Motion for Entry of a Final Judgment 4 3.

On November 22, 1996, the district court denied peti-

tioner’s motion as moot and rejected his view that this

case was “still alive,” explaining that “[fjinal judgment

in this matter was entered on June 26, 1996, dismissing

the action as to all defendants then left in the case.” Pet.

App. 2. With respect to the omission of the Ministry of

Justice in the June 26 order, the district court stated that

the Ministry of Justice is merely a part of “The Sov-

ereign State of Japan” and was dismissed along with

all of the other agencies of the Japanese government.

This was made clear in the minute order of June 24,

1996, which made it clear that the action was dis-

7

missed as to Japan, and all of its agencies, by reason

of sovereign immunity. [/d. at 2-3.]

On December 17, 1996, petitioner filed a notice of

from the district court’s November 22, 1996

order. Pet. 6. On February 26, 1997, the Ninth Circuit

issued an order requiring petitioner “to sho-v ~ause why

summary disposition is not appropriate,” noting that

“this court has previously dismissed the appeal from the

district court’s final order for lack of appellate jurisdic-

tion.” Order of Feb. 26, 1997, at 1. On April 24, 1997,

the Ninth Circuit summarily affirmed the district court’s

decision and explained that “[a] review of the record and

appellant’s response to this court’s order to show cause

indicates that the questions raised in this appeal are so

insubstantial as not to need further argument.” Pet. App.

1. On June 4, 1997, the Ninth Circuit denied what it

construed as a motion by petitioner for reconsideration

and also rejected petitioner's suggestion for rehearing en

banc. Pet. App. 6.

REASONS FOR DENYING THE WRIT

1. The petition ought be denied, if for no other reason,

because petitioner does not allege any intercircuit con-

flict with respect to the legal issue on which his case

turns. That is, while petitioner makes a ritualistic claim

of conflict, see Reasons for Granting the Writ Nos. 1 &

2, he is unable to point to a single court of appeals

decision holding on facts similar to this case that a

district court’s decision was not final and appealable.

Indeed, he fails to cite a single court of appeals case

arising in an analogous context.

Furthermore, wholly apart from the absence of con-

flict, this case simply raises no “important federal

question” (S. Ct. R. 10(a)) requiring resolution by this

Court. Although the legal standard for determining

when a district court decision is final and appealable is,

no doubt, an important question, that standard—as

shown below—is quite settled, and this case involves

8

nothing more than a fact-bound application of that

standard in a context where the answer is clear.

Petitioner obviously believes that the Ninth Circuit

decided this case incorrectly—which it emphatically did

not. But even if it had that would not be reason enough

to grant review. See Robert L. Stern, et al., Supreme

Court Practice § 4.17, at 193 (7th ed. 1993) (“It has

been reiterated many times that the Supreme Court is not

primarily concerned with the correction of errors in

lower court decisions”). Justice Harlan’s reminder that

this Court does “not sit as a court of errors and appeals

in state cases,” Burgett v. Texas, 389 U.S. 109, 120

(1967) (Harlan, J., dissenting, joined by Black & White,

JJ.), would seem to have equal force in a federal case

such as this one.

2. Because the district court’s June 26 order was a

final and appealable judgment, petitioner’s time for

noticing his appeal expired long before he actually did

so in August 1996. Under 28 U.S.C. § 1291, the courts

of appeals have jurisdiction of appeals from the “final

decisions” of federal district courts. “For a ruling to be

final, it must end the litigation on the merits, and the

judge must clearly declare his intention in this respect.”

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co.,

498 U.S. 269, 273-274 (1991) (quotation marks, brack-

ets, and footnote omitted). Thus, in Bankers Trust Co. v.

Mallis, 435 U.S. 381 (1978) (per curiam), this Court

held that, although the district court had failed to set

forth its final judgment on a separate document in

accordance with Fed. R. Civ. P. 58, the appellate juris-

diction of the court of appeals nonetheless had been

properly invoked under § 1291 because “the District

Court clearly evidenced its intent that the opinion and

order from which an appeal was taken would represent

the final decision in the case.” Jd. at 387; see also id. at

385 n.6 (court of appeals must “determine whether the

district court intended the judgment to represent the final

decision in the case”).

9

Following this Court’s lead, it is well established in the

courts of appeals that a judgment is final and appealable

‘f from the record it is sufficiently clear that it was the

district court’s intent to render a final judgment. See,

e.g., National Distrib. Agency V. Nationwide Mut. Ins.

Co., 117 F.3d 432, 433 (9th Cir. 1997) ("A ruling is final

for purposes of § 1291 if it (1) is a full adjudication of

the issues, and (2) clearly evidences the judge’s intention

that it be the court’s final act in the matter”) (quotation

marks omitted); Spain v. Gallegos, 26 F.3d 439, 446 n.9

(3d Cir. 1994) (“the district court clearly intended that its

dismissal of the case would be its final decision’);

Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir.

1993) (“What essentially is required is some clear and

unequivocal manifestation by the trial court of its belief

that the decision made, so far as it is concerned, is the

end of the case”); Chiari v. City of League City, 920

F.2d 311, 314 (Sth Cir. 1991) (judgment is final “if it is

apparent that the district judge intended that the judg-

ment dispose of all the claims before him”); F. & H.R.

Farman-Farmian Consulting Eng’rs Firm v. Harza

Eng’g Co., 882 F.2d 281, 283 (7th Cir. 1989) (“the

judge’s intent to dismiss the entire suit is plain, which is

enough to satisfy the final decision rule of 28 U.S.C.

§ 1291”) (Posner, J.), cert. denied, 497 U.S. 1038

(1990). The “focus [is] on the court’s intent,” which is

inferred “from the record as a whole.” National Distrib.

Agency, 117 F.3d at 434.

Here, a review of the pertinent parts of the record

leaves not a shred of doubt that the district court in-

tended to bring this litigation to a close on June 24,

1996.

At June 24, 1996 hearing, counsel for petitioner twice

expressed a desire to have the Ninth Circuit rule on the

issue of respondents’ sovereign immunity, see Tr. of

June 24, 1996 Hrg. at 10, 11, so that he could “get a

definitive resolution.” Jd. at 11. Acceding to counsel’s

wishes, the district court agreed “to give fhim] the

10

definitive resolution at this judicial level” (id.) and then

promptly dismissed the case with prejudice. See id.

(“The motion to dismiss is granted without leave to

amend. The action’s dismissed and I just signed the

order”).

In the June 24 order, the court—with the unmistakable

intention of terminating the litigation—stated that “[t]he

motion to dismiss of all named defendants is granted

without leave to amend on the ground of sovereign

immunity and the action is dismissed.” App., infra, at la

(emphasis added). From this, it is clear that the court

intended to dismiss as to the Ministry of Justice along

with each of the other respondents.

That this was the district court’s intent it is made not

just clear, but crystal clear, from the fact that, in granting

respondents’ motion to dismiss, the court expressly

declined to give petitioner leave to amend his complaint.

App. la. In Gerritsen v. De La Madrid Hurtado, 819

F.2d 1511 (9th Cir. 1987), plaintiff sued “the President

of Mexico, the Mexican Consulate, and several consular

officials and employees associated with the Mexican

Consulate in Los Angeles.” Jd. at 1513. The district

court sua sponte dismissed the complaint in an order

concluding with the statement that “President de la

Madrid is dismissed from this action with prejudice;

plaintiff's complaint is dismissed for lack of subject

matter jurisdiction.” Jd. at 1514. On appeal, the Ninth

Circuit held that the order was appealable (even though

it purported to dismiss the complaint rather than the

action), explaining that “[t]he order did not grant Gerrit-

sen leave to amend the complaint. Failure to allow leave

to amend supports an inference that the district court

intended to make the order final.” Jd.

In short, it is impossible to read the June 24 order and

. not understand that petitioner had just lost the case and

every respondent had won. Petitioner, in fact, concedes

that the June 24 order indicates that the motion to dis-

miss was granted as to all of the respondents. Pet. 4.

11

In the face of this clarity of intent, petitioner relies on

the June 26 order. That document, however, cannot

carry the day for him. In the June 26 order, the district

court expressly stated that “[t]his Order is a final judg-

ment for purposes of Fed. R. Civ. P. 54(a).” Pet. App. 4

(emphasis added). And as significant as the emphasized

language is the court’s tell-tale invocation of Rule 54(a).

That rule applies to “any order from which an appeal

lies.” Pet. App. 7. Thus, the court’s reference to Rule

54(a) is a sure sign that it understood its order to be an

appealable—meaning final—order. Finally, the docket

entry concerning the June 26 order reflects the court was

“terminating [the] case” with that order.

In light of the clear evidence of the district court’s

intent, the court’s inadvertent omission of the Ministry

of Justice from the June 26 order does not mean that the

order was not final. The court’s clear intent trumps any

ambiguity created by this clerical oversight. See Wither-

spoon v. White, 111 F.3d 399, 401-402 (Sth Cir. 1997)

(“In circumstances in which a court order is ambiguous

as to what parties and claims are being disposed of and

the district court intended to effect a final dismissal of a

claim, we will construe its order accordingly, despite

ambiguous language that might indicate otherwise’”’)

(quotation marks, ellipses, and brackets omitted). The

fact that the order was styled as one dismissing the

action as to “certain” defendants (Pet. App. 4), can be

explained by the fact that two of the original defen-

dants—Middleton and Bowers—had already been

dropped from the case.

Petitioner’s own conduct, moreover, demonstrates that

he understood the district court’s June 26 order as a final

order. In the nearly two months between June 26 and

August 20, 1996, petitioner filed nothing and moved for

nothing in the district court. Then, on August 20, he

filed a notice of appeal—hardly the action of a litigant

who believes the time for appeal has not yet commenced

to run. It was not until after his appeal had been dis-

~ 12

missed that petitioner was struck with the remarkable

epiphany that his notice of appeal had been filed, not too

late, as the Ninth Circuit thought, but too soon.

Petitioner argues (Pet. 13-16) that, the June 26 order

was not final and appealable because it did not satisfy

the certification requirements of Rule 54(b), the rule

governing a court’s entry of “a final judgment as to one

or more but fewer than all of the claims or parties.” Pet.

App. 7. The problem with this argument is that it rests

on the incorrect premise that the district court intended

to grant final judgment to fewer than all of the parties.

As shown above, the district court’s obvious intention

was to enter final judgment as to all parties. In particu-

lar, the court’s citation in the June 26 order of Rule

54(a) the rule applicable to final, appealable judg-

ments—makes clear that the court was not proceeding

under Rule 54(b).

It should also be noted that petitioner does not even

attempt to offer a theory why the district court might

have intended to dismiss the case as to every defendant

except for the Ministry of Justice. The motion to dis-

miss for reasons of sovereign immunity was brought by

all respondents, including the Ministry of Justice.

Neither respondents in their motion nor petitioner in his

reply made any argument that the motion should be

granted (or denied) as to fewer than all respondents.

And the reasons the district court gave in the June 24

order for granting the motion provide no basis for

thinking that it was granted as to some, but not all,

respondents. In other words, there is not a single reason

to believe that the omission of the Ministry of Justice

from the June 26 order was anything but inadvertent.

Furthermore, this is not a case in which one must

guess the intent of the district court. Here, we know that

the court intended the June 26 order to be final because

we have its actual views on the subject. Following the

Ninth Circuit’s dismissal of his first appeal, petitioner

returned to the district court and moved for entry of a

13

final judgment. The district court, however, explained

that “[f]inal judgment in this matter was entered on June

26, 1996, dismissing the action as to all defendants then

left in the case.” Pet. App. 2. Thus, there can be no

question about the court’s intent since the court has

explained what it was.

Petitioner asserts that, because of his lack of facility

with English, he was “confused” by the June 26 order.

Pet. 5. An untimely notice of appeal cannot be excused,

however, even in the case of a pro se litigant. The

equities, moreover, are hardly on petitioner’s side.

Petitioner states that he was represented by counsel at

the time the district court dismissed the case. Pet. App.

17. Upon learning that his case had been dismissed, he

could have easily at that time asked counsel when his

notice of appeal was due.

There were also certain procedural steps petitioner

could have taken to dispel, and protect himself from, any

confusion from which he may have suffered. First, if

petitioner was not sure whether the time to appeal had

started to run, he could have filed a protective notice of

appeal, any dismissal of which would have been without

prejudice to him. Second, if petitioner did not know

whether the omission of the Ministry of Justice from the

June 26 order was a mere scrivener’s error, he could

have sought an answer by moving under Rule 60. See

Fed. R. Civ. P. 60(a) (“Clerical mistakes in judgments,

orders or other parts of the record and errors therein

arising from oversight or omission may be corrected by

the court at any time of its own initiative or on the

motion of any party”); see also Hasbrouck v. Texaco,

Inc., 879 F.2d 632, 636 (9th Cir. 1989) (“A cc srt’s

failure to memorialize part of its decision is a clerical

error”). Petitioner did neither of these things.

3. In denying petitioner’s motion for entry of judg-

ment, the district court explained that the Ministry of

Justice had not been left out of its June 26 order because

“the Ministry of Justice is merely a part of ‘The Sover-

14

eign State of Japan’ and was dismissed along with all of

the other agencies of the Japanese government.” Pet.

App. 2-3. Petitioner argues that this explanation con-

flicts with this Court’s admonition that for purposes of

the FSIA “government instrumentalities established as

juridical entities distinct and independent from their

sovereign should normally be treated_as_such.” First

Nat’l City Bank v. Banco Para el Comercio Exterior de

Cuba, 462 U.S. 611, 626-627 (1983); see Pet. 10. He

did not, however, raise this argument in the court be-

low,? and therefore it should not be considered for the

first time by this Court. See, e.g., Ryder v. United

States, 515 U.S. 177, 186 (1995). In any event, the

Ministry of Justice is not a “juridical entit[y] distinct and

independent” from the Sovereign State of Japan itself.

The FSIA draws a distinction for certain purposes

between, on the one hand, a “foreign state,” a term that

“includes a political subdivision of a foreign state,” and,

on the other hand, an “agency or instrumentality of a

foreign state.” 28 U.S.C. § 1603.4 All of the cases on

which petitioner relies> involved government-owned

corporations, which are treated as agencies or instrumen-

3 See Appellant’s Response to Order to Show Cause Why

Summary Disposition is Not Appropriate; Appellant’s Supplemen-

tal Response to Order to Show Cause Why Summary Disposition

is Not Appropriate; Appellant’s Reply to Appellee’s Filing

Pursuant to the Court’s Feb. 26 Order. Appellant did raise the

argument in the “Opening Brief” he sent to the Ninth Circuit but

the Ninth Circuit, as explained in Point 4 below, properly did not

consider that brief.

4 Thus, the FSIA prescribes a different mode of service upon

foreign states and political subdivisions thereof than upon agen-

cies and instrumentalities of foreign states. See 28 U.S.C. § 1608.

5 See Pet. 9, 12 (citing First City National Bank, supra; McKes-

son Corp. v. Islamic Republic of Iran, 52 F.3d 346 (D.C. Cir.

1995), cert. denied, 116 S. Ct. 704 (1996); Hester Int’l Corp. v.

Federal Republic of Nigeria, 879 F.2d 170 (Sth Cir. 1989);

Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559 (11th Cir. 1987);

Gibbons v. Republic of Ireland, 532 F. Supp. 668 (D.D.C. 1982)).

/

15

talities under the FSIA. See id. § 1603(b). The Japanese

Ministry of Justice, however, is not an agency or instru-

mentality within the-meaning of the FSIA but rather a

political subdivision of a foreign state. See Unidyne

Corp. v. Aerolineas Argentinas, 590 F. Supp. 398, 400

(E.D. Va. 1984) (“A political subdivision of a foreign

state includes all governmental units beneath the central

government”). Thus, in Unidyne the court held that the

Argentine Naval Commission (“ANC”)—a department

of the Argentine Navy—was a political subdivision of

Argentina for purposes of the FSIA.® In so doing, the

court observed that “[tJhe ANC is part and parcel of the

Argentine Navy * * * The ANC has no life other than

that derived from Argentina; rather the agency is Argen-

tina * * *, not an entity independent of it.” Jd.

So too here, the Japanese Ministry of Justice is prop-

erly viewed as “part and parcel” of the Sovereign State

of Japan. Accordingly, the district court’s dismissal of

the case with respect to the Japanese government is

correctly understood as a dismissal with respect to the

Ministry of Justice. Cf Martinez v. Winner, 771 F.2d

424, 442 (10th Cir. 1985) (“the Department of Justice

was properly dismissed as a named defendant, if for no

other reason, because it is not a juridical entity separate

from the United States”), vacated & remanded to con-

sider question of mootness sub nom. Tyus v. Martinez,

475 U.S. 1138 (1986), judgment vacated as moot, 800

F.2d 230 (10th Cir. 1986).7

6 See also Gerritsen, 819 F.2d at 1517 (Mexican Consulate is a

foreign state); Tucker v. Whitaker Travel, Inc., 620 F. Supp. 578,

581 (E.D. Pa. 1985) (Bahamian Ministry of Tourism is a foreign

state), aff'd, 800 F.2d 1140 (3d Cir.) (table), cert. denied, 479 U.S.

986 (1986). But see Behring Int'l, Inc. v. Imperial Iranian Air

Force, 475 F. Supp. 396, 403 (D.N.J. 1979) (concluding, without

discussion or analysis, that Iranian Air Force is an agency or

instrumentality).

7 Although the Tenth Circuit on remand from the Supreme

Court vacated its judgment in the case on mootness grounds, the

court denied a request to vacate its published opinion, saying that

16

4. Finally, petitioner asks this Court to exercise its

supervisory power over the court below for its failure to

consider his opening brief. Pet. 17. The Ninth Circuit

did nothing to warrant the exercise of that power.

On February 26, 1997, following receipt of petitioner’s

notice of appeal from the district court’s November 8,

1996 order, the Ninth Circuit—after reviewing the

record and determining that it had previously dismissed

petitioner’s appeal from the district court’s June 26

order—directed petitioner to show cause why summary

disposition was not appropriate. In March 1997, peti-

tioner filed a response to the show cause order, a sup-

plemental response, and a reply to respondents’ submis-

sion with respect to the order. After considering these

submissions, the Ninth Circuit summarily affirmed on

April 24, 1997. Pet. App. 1. Because the Ninth Circuit

determined that petitioner had failed to make the show-

ing necessary to avoid summary disposition, the court

had no need, and was under no obligation, to consider

petitioner’s opening brief, which was filed on April 18,

1997. Petitioner had ample opportunity to explain why

summary disposition was inappropriate and simply was

unable to do so in three filings.

Petitioner also complains that the Ninth Circuit con-

strued his petition for rehearing as a motion for recon-

sideration under Ninth Circuit Rule 27-10 in—he al-

leges—an “apparent” effort to circumvent the en banc

review process. Pet. 17. Rule 27-10 applies to motions

for “clarification, reconsideration, or rehearing of an

order entered by a motions panel.” Pet. App. 10. The

Ninth Circuit’s summary affirmance order of April 24,

1997, appears to have been issued by a motions panel.®

the opinion “may be useful to someone in the future.” 800 F.2d at

231.

8 The show cause order issued by the Ninth Circuit on February

26, 1997, was signed by “Song Hill, Motions Attorney/Deputy

Clerk.”

17

There is no reason to believe that the Ninth Circuit failed

to follow correct procedure in this instance. Nor is there

any reason to believe that petitioner’s suggestion for

rehearing en banc failed to receive the consideration it

was due. See Pet. App. 6 (“reject[ing]” the suggestion).

Review of the Ninth Circuit’s internal operating proce-

dures surely is not warranted in this case.

CONCLUSION

For the foregoing reasons, the petition should be de-

nied.

Respectfully submitted,

WILLIAM A. BRADFORD, JR.*

DAVID G. LEITCH

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5660

* Counsel of Record Counsel for Respondents