# Opposition Brief — Aizawa v. Japan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 865

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1126%3A2. Public record. Not legal advice.