# Petition for Writ of Certiorari — Tenney v. Mitsui & Co., Ltd.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 820

## Text

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i OFFICE OF THE CLERK

In the
Supreme Court

of the United States

LESTER I. TENNEY, ¢ a/,
Petttioners,

Vv.

MITSUI & CO., LTD., MITSUI & CO. (USA), INC.,
MITSUI MINING CO. LTD.,
and MITSUI MINING USA INC., |
Respondents,

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Steven M. Schneebaum*/
PATTON BOGGS LLP
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6300
Counsel for Petitioners
June 4, 2003 */ Counsel of Record

QUESTIONS PRESENTED

1. Under the “well-pleaded complaint rule,” do the
federal courts have removal jurisdiction over lawsuits filed
in State court and arising under State law, in which the
relevant complaints disclose no federal basis for suit, solely
because the defendants (and the United States as amicus
curiae) contend that the actions are barred by a treaty of the
United States?

2. Is it open to a federal appellate court to speculate as
to how the highest cour: of a State would resolve a question
of interpretation of State law, when the only two State
appellate court decisions on point are in direct conflict and
the matter is currently set for resolution by the State
Supreme Court?

a Does the 1951 Treaty of Peace with Japan, on a
proper reading of all of its terms, prohibit the assertion of
private causes of action by Americans against private
Japanese companies that enslaved them, brutalized them, and
profited from their unpaid labor, even though no treaty in the
history of this Republic has ever been held by this Court to
preclude the assertion of private rights of action by private
citizens against foreign non-government defendants?

STATEMENT OF CORPORATE AFFILIATIONS

All Petitioners are individuals, and there are no
corporate affiliations to disclose on their side.

Table of Contents

QUESTIONS PRESENTED ................sscsssssssssssssssrssssesesers ol
STATEMENT OF CORPORATE AFFILIATIONS ............ li
Te Gr BU a onsen snscescccsscsnscecsocencnsconecsovessovens V
BIT nsnsnssndsssescssnsceseccorsssersosescsnessveossosesonorsess 1
IY oinnssncssnsvshiwsiasastichoviarerasespsvecsesavuvasenersennaeites l
TREATIES AND STATUTES INVOLVED.............::eeeeeeee 1
STATEMENT OF THE CASE............ccocssoroscersoeesesssesssesssenes 2
1. The Facts of the Underlying Litigation................ 2
2. The State Court Litigation. ........:........0sccsscssessseeses 2
3. Disposition in the District Court ............:eseseeeee 4
4. The Opinion of the Ninth Circuit ..............esese 4
5. What Is at State in These Cases..............::scceeeeeeees 6
REASONS FOR GRANTING THE WRIT ..........:c:ceeseeeeeees 7

A. The Federal Courts Are without Subject-Matter
Jurisdiction in Cases Brought under State Law, in
Which Any and All Federal Claims are Asserted
by the Deffense. ..................ssscsssssrssssssceseessorsesneeee 7

B. A Federal Appellate Court May Not Resolve a
Question of Interpretation of State Law, When
the Only Two State Appellate Decisions on point
Are in Direct Conflict, and the Matter Is
Currently Set for Resolution by the State
Supreme COult.............cccccsssscssssesecsessessesereeeees 10

C. The Treaty of Peace with Japan Did Not Bar
Actions by Private American Citizens Against the

Private Japanese Companies That Mistreated and

I i alate 11
1. The Treaty Did Not Bar All Prisoner of
a iia eictvesnicietdlanedeiaadarseeaees 13

a. Other Provisions of the Treaty
Limit the Waiver of Claims in
FE Wi vine ndiciinediadeciniien 14
b. Petitioners’ Claims Did Not in
Face, Arise from Actions Taken
“in the Course of Prosecution of
SE FRs i aceiudicninengeeennbehiemeetois 18
c. Petitioners’ Claims Neither Are,
Nor Are Similar to, “Reparations”
cali iacal aan adcad cialis 21
2. Any Treaty Waiver of Petitioners’ Claims
Was Superseded by Subsequent
IE esisicssecsiicsvitiersactnnesesensaniins 22
3. The Treaty Must Be Read Narrowly, So
As Not to Deprive Americans of the Right
to Pursue “National versus National” .
Ns ctaiindac cain clans stenthadiiccintaiadimaiiains 28

a MIT: wncintciasintcoiibiashnicabieonesiaatsnibnitisaibiaenneibialaaieniraieaiton 30

iv

TABLE OF AUTHORITIES

CASES
Am. Ins. Ass’n v. Low, 123 S. Ct. 817 (2003)......... ]
Banco Nacional de Cuba v. Sabbatino,
BIG U.S. FOO CIGD evvccssencnvencictccserimemacevesivianvevns 9
CSX Transp., Inc. v. Easterwood, 113 S. Ct. 9
SFO CAF iescestsnnsecccetpestccmninenen maniacs
Cal. Coastal Comm’n v. Granite Rock Co.,
GO UD, Se I viereestinctieersintnsceininnnareeons 8
Caterpillar, Inc. v. Williams, 482 U.S. 386 7,8
(RGB 7) seincisnincinserscsovntexenene cansaneeivabennsentoainnssirnameiapiies
Chan v. Korean Air Lines, 490 U.S. 122 (1989).... 15
Cipollone v. Liggett Group, Inc., 112 S. Ct. 8-9
DE CG covissnesinesivvevcientatanininiaivienianniammabatininaace
City of Chicago v. Int’! Coll. of Surgeons,
$32 US: VSG IGS?) cecccemnimenvintmmnncinaaiies 7
Clark v. Allen, 331 U.S. 503 (1947) ............ecceeeeeees 9
Dames & Moore v. Regan, 453 U.S. 654 (1981).... 28
Deutsch v. Turner Corp., 317 F.3d 1005, as
amended at 324 F.3d 692 (9" Cir. 2003).........:++++ passim
Eastern Air Lines Inc. v. Floyd, 499 U.S. 530 14
CSOD BD nccvracrcrssinsneosssiinesenttenieaebiceseninisnssieeneendsnrsianiiios

Franchise Tax Bd. of Cal. v. Constr. Laborers

Vv

Vacation Trust for Southern Cal., 463 U.S. 1 8, 10

Gerling Global Reins. Corp. of Am. v. Low, 240
F.3d 739 (9th Cir. 2001), cert. granted sub nom

Am. Ins. Ass’n v. Low, 71 U.S.L.W. 3470 (2003) .. 9
Kawakita v. United States, 343 U.S. 717 (1952)... 20
Kolovrat v. Oregon, 366 U.S. 187 (1961)............... 24, 25
M. Nahas & Co., Inc. v. First Nat’l Bank of Hot

Springs, 930 F.2d 608 (8th Cir. 1991)... 7
Marathon Oil Co. v. Ruhrgas AG, 115 F.3d 315

(Sth Cir. ) cert. denied 522 U.S. 967 (1997)........... 7
Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994)... 22
Metropo. Life Ins. Co. v. Taylor, 481 U.S. 58 8
CEE TDi csnstnrsssnnisanoneernsaneaaiaeaaiaamnaadias
Mitsubishi Materials Corp. v. Superior Court,

106 Cal. App. 4th 39 (Feb. 6, 2003)... eee 4,6, 11
Moore v. Sims, 442 U.S. 415 (1979) ...... ecco 11
Patrickson v. Dole Food Co., Inc., 251 F.3d 795

(9th Cir. 2001), aff'd on other grounds, 251 F.3d 4
FEE COE cininrniniiniimaamadaemae
Reparations for Injuries Suffered in the Service

of the United Nations Case, [1949] I.C.J. 174........ 22
Taiheiyo Cement Corp. v. Superior Court, 105

Cal. App. 4th 398, 129 Cal. Rptr. 2d 451 ( Jan. 6, 11
9S, FED Pinvsianisinsvsilsveisanciaileltiiedtaaniatandanamanmeadiai:

The Paquete Habana, 177 U.S. 677 (1900) ........... 25
United States v. 37 Photographs, 402 U.S. 363 11
C1 DT) cnssornssersercsrsvercesesssonsnsnonnssnsrenncensnsopeesnenonensneses
United States v. Espy, 145 F.3d 1369 (D.C. Cir. 22
DO vases vsshnnesnssernsisnesnisaninanericsnnaninceniinnsninacaivieninn
In re World War II Era Japanese Forced Labor
Litig., 114 F. Supp. 2d 939 (N.D. Cal. 2000)......... 1,9
Zschernig v. Miller, 389 U.S. 429 (1968)...........+++ 9
FEDERAL STATUTES
SE CPB. © FOGG vaicasienenesnserssisvcnssssncorinsescsnstiorrnsiones 21
FE USL. © VASA) vsevscsessvevcsnesemivcscnsnsissactasenseseees 1
y PART oat & | eee Onn NE DN enter ns 7,10
FE U.S.C. © P4AG(R) ... Other federal Judges did remand other Japanese Prisoner of War cases
to California State courts, where they remain. See, e.g., Mitsubishi
Materials Corp. v. Superior Court, 106 Cal. App. 4th 39 (2003)
(discussed infra at p. 6).

4

motions, but for only one of the proffered reasons. He held
that the Treaty unambiguously constituted a waiver of these
causes of action. He found further support for this position

— in his analysis of the negotiation and ratification of the
Treaty.

4. The Opinion of the Ninth Circuit.

The Ninth Circuit consolidated the cases brought by
American citizen plaintiffs with litigation initiated by
nationals of both signatories and non-signatories of the San
Francisco Treaty. Also consolidated was an action brought
by a European Holocaust survivor against a German
company, alleging enslavement and pursuing a claim for
damages. :

The Ninth Circuit Panel issued an opinion far more
limited in scope than that of Judge Walker below. The
circuit court held that the section of the California Code of
Civil Procedure extending the limitations period was a
substantive, and hence an impermissible, intrusion by a State
into the federal government’s constitutional prerogative to
conduct foreign affairs. The court opined that the federal
resolution inter alia of the cases now at Bar was
incorporated into the 1951 Treaty, effectively precluding the
maintenance of these suits. ;

After concluding its analysis of the constitutionality
of the State statute, the court went on to address the question
of whether there was federal jurisdiction over these cases at
all, or whether the district court should have remanded them
to the State courts in which they were originally filed. The
Panel found that it did not need to resolve this issue, because
the outcome of State court litigation over the construction
and acceptability of § 354.6 was a foregone conclusion.

In the amendment to its opinion issued six weeks
later (on March 6, 2003) (see App., pp. 1a-16a), the court
noted that two Califorma Court of Appeal panels had
recently issued decisions that reached precisely opposite
holdings on the critical question of whether the statute was
substantive or procedural in nature. One court found that

5

ee

§ 354.6 impermissibly purported to create a cause of action
that would not otherwise exist, while the other opined that
the statute was merely a procedural extension of the
limitations period, raising no constitutional issues. Compare
Mitsubishi Materials Corp. v. Superior Court, 106 Cal. App.
4th 39 (Feb. 6, 2003) with Taiheiyo Cement Corp. v.
Superior Court, 105 Cal. App. 4" 398, 129 Cal. Rptr. 2d 451
( Jan. 15, 2003). Apparently, the existence of this actual
conflict was not sufficient to persuade the circuit court that
the ultimate resolution of this critical question of State law
by the California courts is open to doubt.

Meanwhile, on April 30, the State Supreme Court
granted review of both of these cases, 2003 Cal. LEXIS
2794. Argument will be heard some time in the coming
months.

5. What Is at Stake in These Cases.

Petitioners respectfully submit that the court below
erred, both procedurally in concluding that there is federal
jurisdiction over these suits, and also substantively in
affirming the order of dismissal.

These are cases of enormous public importance,
which have attracted considerable attention from the media,
as well as from the political branches of government.
Indeed, the attention they have drawn is well merited: in this
time when U.S. servicemen and servicewomen are once
again subject to capture as prisoners of war far from these
shores, it is especially important to elucidate the legal rights
of the American heroes who wore their country’s uniform
during World War Two, and for whom this Court now offers
the last hope for vindication.

The Court may surely take notice of the fact that
Petitioners are no longer young: having suffered
unspeakable abuse in 1942-45, the youngest of the survivors
is nearly 80 years of age. Many are substantially older than
that. These men represent the finest of the generation that
fought and won the Second World War, incurring enormous
personal loss to preserve our way of life against severe and

6

imminent threats. They deserve the attention of the highest
Court in the land, which should now address and resolve the
important legal questions that they respectfully present in
this Petition.

REASONS FOR GRANTING THE WRIT

A. The Federal Courts Are without

Subject-Matter Jurisdiction in Cases Brought under

State Law, in Which Any and All Federal Claims

Are Asserted by the Defense.

The competence of the federal courts to hear cases is
limited. They may adjudicate an action only if constitutional
or statutory authority permits. Marathon Oil Co. v. Ruhrgas
AG 115 F.3d 315, (5" Cir. ) cert. denied 522 U.S. 967
(1997). And cases begun there may be removed from State
courts only if they come within that restricted federal
jurisdictional field. The remand statute, 28 U.S.C. § 1446(a),
is strictly construed against federal jurisdiction, as this Court
has repeatedly taught. “To bring a case within the [federal-
question removal] statute, a right or immunity created by the
Constitution or laws of the United States must be an
element, and an essential one, of the plaintiffs cause of
action.” Caterpillar, Inc. v. Williams 482 U.S. 386, 392
(1987) (emphasis added) (quoting Gully v. First Nat'l Bank
299 U.S. 109, (1936).

The federal nature of a cause -- and hence the special
jurisdiction of the federal courts under 28 U.S.C. § 1331 --
may not be created, for example, by the defense to a claim,
when the claim itself arises under State law. In City of
Chicago v. International College of Surgeons, 522 U.S. 156,
163 (1997), this Court described the “well-pleaded complaint
rule” as “long settled law.” Nor may a case be removed
because the plaintiff might have asserted a federal claim but
elected not to do so. M. Nahas & Co., Inc. v. First National
Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir. 1991) (“the
plaintiff is master of his claim, and may avoid federal
removal jurisdiction by exclusive reliance on State law”’).

Here, of course, the complaints themselves declare no
federal cause of action: on the contrary, they are clearly
framed to allege common law and equitable causes of action
under the laws of the State of California. Removal,
therefore, was at least presumptively improper: “original
federal jurisdiction is unavailable unless it appears that some
substantial disputed question of federal law is a necessary
element of one of the well-pleaded State claims, or that
one of the other claims is ‘really’ one of federal law.”
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation
Trust for Southern Cal., 463 U.S. 1, 13 (1982) (emphasis
added).

At the district court, Judge Walker appears implicitly
to have found that these cases come within an exception to
the well-pleaded complaint rule, the so-called “complete
preemption doctrine.” When Congress has so thoroughly
occupied and dominated an area as to leave no room for
State law, any civil action will in essence be federal in
character, and removal may be had no matter how the
complaint is written. Caterpillar, Inc. v. Williams, 482 U.S.
386, 393 (1987); Metropolitan Life Insurance Co. v. Taylor,
481 U.S. 58, 65-66 (1987).

Yet the very rulings that define the doctrine make
clear its inapplicability to such cases as these. States are
surely not preempted from regulating the fairness with which
their citizens are treated in the workplace, or from providing
a mechanism for redress of such grievances.

In California Coastal Comm'n v. Granite Rock Co.,
480 U.S. 572 (1987), this Court laid down the boundaries of
the complete preemption doctrine. States may not regulate
in a given field: (1) when Congress has made clear its intent
to occupy the field exclusively, either by expressly
prohibiting State involvement, or through a legislative
framework leaving no room for State regulation; or (2)
where there is an “actual conflict” between the requirements
(or prohibitions) of State and federal law. 480 U.S. at 581
(citations omitted).

i i

The key question, then, is whether Congress intended
that State law be superseded by Federal law. Cipollone v.
Liggett Group, Inc., 112 S.Ct. 2608, 2617 (1994). Common
law claims, such as the claims at Bar of employees against
employers, are the best example of those “traditionally
governed by State law,” as to which preemption will be most
unlikely. CSX Transportation, Inc. v. Easterwood, 113 S.Ct.
1732, 1737 (1993). No federal statute purports in any
manner to preempt these claims. And there are no
obligations under federal law as to which these suits present
an “actual conflict.”

The “complete preemption doctrine” therefore does
not apply to these lawsuits, which are concerned not with
foreign affairs but with the right of workers to be paid, and
not with diplomacy but with torts and equity. The plaintiffs’
choice of the State court forum should be honored.

In the district court, Judge Walker claimed to follow
“a line of cases committing to federal common law questions
implicating the foreign relations of the United States,”
including Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398 (1964). “Under Banco Nacional,” he wrote, “federal
common law governs matters concerning the foreign
relations of the United States.” 114 F. Supp. 2d at 943
(citation omitted); App. 71a.* But this reasoning, too, is of

* In its decision below, the court of appeals paraphrased with approval its
earlier remark that “(t]he federal government’s foreign affairs power is
not mentioned expressly in the text of the Constitution but, rather, is
derived from the structure of the Constitution and the nature of
federalism.” Gerling Global Reins. Corp. of America v. Low, 240 F.3d
739, 751 n.9 (9" Cir. 2001), cert. granted sub nom. Am. Ins. Ass'n v.
Low, 71 U.S.L.W. 3470 (2003). “The power is rarely invoked by the
courts; the Supreme Court has not applied it in more than 30 years,” id.,
since Zschernig v. Miller, 389 U.S. 429, 433-35 (1968). The circuit
correctly noted this Court’s holding that a statute will not be struck down
if it has only “some incidental or indirect effect in foreign countries.”
Clark v. Allen, 331 U.S. 503, 517 (1947). 317 F.3d 1005, 1021-22; App.
Sia.

no avail. Banco Nacional neither channels cases into the
federal courts nor precludes State courts from hearing
lawsuits properly before them. Banco Nacional is “best
regarded not as authority for an expansive federal common
law of foreign affairs.” Curtis Bradley & Jack Goldsmith,
“Customary International Law as Federal Common Law: A
Critique of the Modern Position,” 110 Harv. L. Rev. 815, 864
(1997). It is not judicial endorsement of'the so-called
“federal common law of foreign relations,” nor does it
establish a generalizable exception to the well-pleaded
complaint rule.

Resolution of Petitioners’ State law claims would not
require that the tnal court decide a substantive question of
federal law. These claims do not “arise under” the laws of
the United States within 28 U.S.C. § 1331, even if
Respondents’ answers and defenses are replete with reliance
on federal law. See Franchise Tax Bd v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 13
(1982), 463 U.S. at 13-14.

These cases should have been remanded, and it was
reversible error to conclude otherwise. Respondents are by
no means precluded from presenting their Treaty-based
defenses in State court. And the disposition of those
defenses is far from the foregone conclusion imagined by the
appellate panel below. Indeed, the court’s confidence that,
on remand, “the State court would simply dismiss the claims
with prejudice,” 317 F.3d at 1030, is demonstrably
erroneous.

B. A Federal Appellate Court May Not Resolve

a Question of Interpretation of State Law, When the

Only Two State Appellate Decisions on Point Are in

Direct Conflict, and the Matter Is Currently Set for

Resolution by the State Supreme Court.

The Ninth Circuit held that the extension of the
statute of limitations in § 354.6 is unconstitutional as a
substantive incursion by a State into the exclusive preserve
of the federal government. The court considered its

10

interpretation of the State statute to be so clearly correct that
it saw no reason to defer to the expertise and competence of

the State judiciary.

Yet, in Taiheiyo Cement Corp, supra, decided in
January of this year, a panel of the California Court of
Appeal came to precisely the conclusion that the Ninth
Circuit dismissed out of hand. The Taiheiyo court found that
§ 354.6 is “essentially a procedural statute designed to allow
venue in the California courts.” 105 Cal. App. 4" 398 at
423. Thus, there is no creation of a cause of action, no issue
of constitutionality, and no incursion into the substantive
regulation of foreign affairs that the federal appellate panel
found the California Legislature to have committed.

“State courts are the principal expositors of State
law.” Moore v. Sims, 442 U.S. 415, 429 (1979). Federal
courts, when they engage in that exercise, do so without
“authoritative jurisdiction.” U.S. v. 37 Photographs, 402
U.S. 363, 369 (1971).

Another panel of “he same State court agreed with the
Circuit, finding the statute to be substantive and therefore
unenforceable, in Mitsubishi Materials Corp, supra, decided
three weeks after Taiheiyo. The conflict in the interpretation
of a State statute is now precisely where it should be ii our
federal system: the California Supreme Court has granted
review to both decisions, and will resolve the matter ii due
course.

The interpretation of State law by the federal
appellate panel below is entitled to no weight. The
California Supreme Court will soon ultimately and
authoritatively pronounce on whether the proper reading of
the statute is as procedural or substantive. The decision
below is grounded in a violation of a fundamental tenet of
federalism, and should be set aside.

C. The Treaty of Peace with Japan Did Not Bar

Actions by Private American Citizens Against the

Private Japanese Companies That Mistreated and

Enslaved Them.

11

The court below did not conclude that it is

impermissible for California to have enacted any legislation
purporting to regulate the rights of Californians who were
victims of wrongs during World War Two. There would be
no basis for such an unprecedented incursion by the federal
courts into the authority of a State Legislature to protect its
citizenry. The real problem, according to the opinion penned
by Judge Reinhardt, is the alleged substantive inconsistency
between California’s enactment, under which these _
Petitioners have a cause of action against these Respondents,
and the Treaty of Peace, which the panel believed waived
such actions.

Petitioners respectfully submit that the panel erred in
its interpretation of the Treaty, no reading of which can
concoct a waiver of claims of private United States citizens
against private entities organized under the laws of the
former Axis powers. It therefore was incorrect in its
conclusion that § 354.6 “is impermissible because it intrudes
on the federal government’s exclusive power to make and
resolve war, including the procedure for resolving war
claims.” 317 F.3d 1005, 1023; App. at 47a. To the
contrary, a proper reading of the document in its entirety and
in its context demonstrates that these claims were not
“resolved” by the Treaty.

As noted below, Article 14(b) of the Treaty of Peace
makes reference to the waiver, subject to certain exceptions,
of “all reparations claims” of U.S. nationals against Japan
and Japanese nationals “arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the
War.” Yet those words by their very terms do not waive all
claims (whether “reparations claims” or not) of U.S.
prisoners of war against Japanese companies (whether
“arising out of . . . the prosecution of the War” or not),
merely by virtue of the fact that they arose during the War
years. This distinction is underscored by the express waiver,
by Japan in Article 19(b), of the claims of its prisoners of
war.

12

Having incorrectly held Article 14(b) to be a
“resolution” of the claims at Bar, the panel also erred in
rejecting Petitioners’ arguments based on the language of an
Article of the Treaty itself, under which certain claims, even
if otherwise barred, were automatically revived in the event
and to the extent that Japan later made “a peace settlement or
war claims settlement with any State granting that State
greater advantages than those provided by the present
Treaty.” Treaty of Peace, Article 26, emphasis added.

These conclusions are incorrect as a matter of law,
‘and are inconsistent with teachings of this Court over
decades. In reaching them, the court below “so far departed
from the accepted and usual course of judicial proceedings . .
_ as to call for an exercise of this Court’s supervisory
powers.” Rule 10(a). Moreover, the questions resolved by
the appellate court are important questions of federal law
“that ha[ve] not been, but should be, settled by this Court.
Rule 10(b).

1. The Treaty Did Not Bar

All Prisoner of War Claims.

Article 14(b) of the Treaty of Peace is clear:

Except as otherwise provided in the present

Treaty, the Allied Powers waive all

reparations claims of the Allied Powers, other

claims of the Allied Powers and their

nationals arising out of any actions taken by

Japan and its nationals in the course of the

prosecution of the war, and claims of the

Allied Powers for direct military costs of

occupation.

To the extent that Article 14(b) might affect claims of
United States nationals, such as Petitioners, against Japanese
nationals, such as Respondents, any waiver is expressly
limited in two respects: (a) it is subject to whatever might be
“otherwise provided” in the Treaty; and (b) it embraces only
claims “arising out of any actions taken by Japan[ese]
nationals in the course of the prosecution of the war.” An

13

analysis of these limitations demonstrates that Article 14
does not constitute an effective waiver of the cases at Bar.
a. Other Provisions of the Treaty
Limit the Waiver of Claims in Article 14.

The proper test for interpreting treaty language was
laid down by this Court in Eastern Air Lines Inc. v. Floyd,
499 U.S. 530, 534-35 (1991): interpretation of a treaty
requires a close scrutiny of its text provisions taken as a
whole. On such a reading, the drafters’ intent not to bar
private claims of Allied prisoners of war against the Japanese
companies that enslaved them emerges unscathed. Article
14(b), which addresses waivers of certain claims of Allied
nationals, has to be read in the context provided by Article
19, the parallel provision governing Japanese waivers.
Neither exists in a vacuum. Understanding Article 14(b),
therefore, and determining whether it is a “resolution” of war
claims that bars State action, requires some analysis of
Article 19.

In Article 19(a), Japan waived claims m language
very much broader than what was accepted by the Allies in
Article 14(b). Article 19 embraces not only claims resulting
from actions taken in the course of prosecution of the War,
but also “all claims . . . arising out of the War or out of
actions taken because of the existence of a state of war.”
Emphasis added. Both the words and the history of this
provision leave no room for doubt that it was intended to
cover far more situations than would come within Article
14(b). Yet if even the more extensive scope of Article 19(a)
does not unambiguously encompass and bar claims like
Respondents’, then surely Article 14(b) cannot be read to do
so either.

_ The negotiators and drafters wrote Article 19(b) to
include critically important language specifying that the
waiver “includes . . . any claims and debts arising in respect
to Japanese prisoners of war and civilian internees in the
hands of the Allied Powers.” Such language, or indeed any

14

express reference to claims to be asserted by Allied POWs
or civilian internees, is absent from Article 14(b).

The venerable maxim “expressio unius est exclusio
alterius” is a proper guide to interpreting treaties, just as it is
for statutory enactments. It requires the conclusion that, in
expressly addressing prisoner of war claims in Article 19(b),
the drafters excluded those claims from the scope of the
waiver in Article 14(b). See Lord McNair, The Law of
Treaties (1938), chapter XVIII, pp. 199-206. The context of
the Treaty thus fills in the meaning of Article 14(b). Itis a
vital part of the judicial function to mine that context, and
thus to discern the meaning of the Treaty as “the supreme
law of the land.”

The court below made no attempt to reconcile its
broad interpretation of Article 14(b) as “resolving” war
claims with the language of the Treaty as a whole, giving
meaning to all of its terms. Article 19 contains “other
provisions,” which limit the reach of the waiver language of
Article 14, and exclude common law claims of private U.S.
citizens against private Japanese business entities.

Articles 14(b) and 19 must be read together, not
because there would be ambiguity in one or both of them
standing alone, but because they deal with related subject
matters,-and, therefore, each provides guidance as to how the
other should be understood. To fail to perform this
contextual analysis, and therefore to conclude that Article
14(b) must be read as if it were a free-standing legislative
instrument, violates this Court’s teaching, articulated most
clearly by Justice Scalia in Chan v. Korean Air Lines, 490
U.S. 122 (1989): the judiciary must not insert into treaties
words that are just not there. The courts may not amend the
Treaty of Peace with Japan to import language that the
drafters did not write into it. Article 14(b) may not be
transformed into the mirror image of Article 19, from which
it differs in critical ways, by importing words that the
drafters did not employ.

15

The negotiating history -- the travaux préparatoires -
- of the Treaty reinforces this conclusion. The historical
record demonstrates without qualification or condition that
the negotiators deleted an express reference to prisoner of
war Claims in Article 14(b), while retaining such a reference
and expanding the scope of the waiver in Article 19(b).

Excerpts from the record,> which were before the
district court below, show that the penultimate draft of the
Treaty, dated June 1, 1951, included two elements relating to
the scope of waivers which were changed by the negotiators
in the final version. First, draft Article 15(d)* provided:

Except as otherwise provided in the present

Treaty, reparations claims of the Allied

Powers, other claims of the Allied Powers and

their nationals (including juridical persons)

arising out of any actions taken by Japan and

its nationals in the course of the prosecution

of the war (including claims arising out of

the treatment accorded by Japan te

prisoners of war and civil‘an internees),

and claims of the Allied Powers for direct

military costs of occupation shall be deemed

to be satisfied out of the Japanese assets

subject to their respective jurisdiction in

accordance with the foregoing and out of

assets received from the Japanese home

islands during occupation.
VI Foreign Relations of the United States (1951), at 1082.

Draft Article 19, by contrast, provided, in words
which mirrored the waiver language ultimately incorporated
in Article 14(b), that:

_ (a) Japan waives all claims of Japan and its
nationals (including juridical persons) against

° Those excerpts are taken from VI Foreign Relations of the United
States (1951), pp. 1074-1101. 5
° This provision was renumbered in the final text as Article 14(b).

16

the Allied Powers and their nationals

(including juridical persons) arising out of

any actions taken by said powers and their

nationals in the course of the prosecution of

the war, and waives all claims arising from

the presence, operations or actions of forces

or authorities of any of the Allied Powers in

Japanese territory proper to the coming into

_ force of the present Treaty.

(b) The foregoing waiver includes any claims

arising out of actions taken by any of the

Allied Powers with respect to Japanese ships

between September 1, 1939, and the coming

into force of the present Treaty, as well as

any claims arising out of the treatment

accorded by the Allied Powers to prisoners

of war and civilian internees.

Id., at 1093-94 (emphasis added).

The negotiators’ treatment of the emphasized
language demonstrates two propositions that cannot be
ignored in any fair canvass of the travaux préparatoires: (1)
the waiver provisions in the June 1, 1951 draft were
originally worded to reflect each other exactly, with both
limited to claims arising “out of the prosecution of the war,”
and (2) by dealing specifically with prisoner of war claims,
both draft provisions addressed the negotiators’ perception
that the scope of the “prosecution of the war’ phraseology,
without elaboration, would not extend unambiguously to
such claims. The negotiating history further shows that even
this waiver, expressly including POW claims, was viewed at
least by the British as still insufficiently broad to protect
their Government against claims by Japanese prisoners of
war. The U.K. representatives therefore sought, and
obtained, the even broader, clearer waiver ultimately ratified
as Article 19 in the final version of the Treaty. Jd., at 1095.

The exchanges between U.S. and British negotiators
over the language of Articles 14(b) and 19 demonstrate that,

17

in the U.K. view, even with textual references to include
prisoner of war claims expressly, the “prosecution of the
war’ waiver still would not be broad enough “to extinguish
all types of claims which the Japanese could raise against the
Allies under the 1929 Geneva Convention on Prisoners of
War or in respect of Japanese surrendered personnel.”
Furthermore, to overcome any perceived limited scope of the
draft waiver, the negotiators redrafted its language between
June and September 1951, expanding the Japanese waiver in
Article 19(b) to include all claims arising during the war,
while deleting from Article 14(b) all language relating to
prisoner of war claims.
All of the traditional guides to the interpretation of

Article 14(b) of the Treaty -- its unambiguous language read
in the context of the whole instrument, the canons of
interpretation, and the travaux préparatoires -- lead to a
single conclusion: Article 14(b) was not intended to bar the
claims of Allied nationals held as prisoners of war by Japan,
and forced to work to enrich private Japanese entities. These
claims were not, therefore, even purportedly “resolved” by
the Treaty, as the court below held, and the Treaty, therefore,
does not evidence exclusive federal occupation of this area
of constitutional territory.

b. Petitioners’ Claims Did Not,

in Fact, Arise from Actions Taken

“an the Course of Prosecution of the War.”

The second express textual limitation on the scope of

the Treaty waiver clause is to actions taken “in the course of
the prosecution of the War.” Petitioners have already shown
that the travaux préparatoires of the Treaty do not support
the bald assertion that prisoner-of-war claims came within
the drafters’ understanding of the scope of the Article 14
waiver. The British negotiators expressly sought broader
language to bar potential claims by Japanese internees
against the Allies. And this fully comports with the
international law regime for treatment of detained persons

18

PO Fe Pe Le Or RR Tt pee

during wartime, which applied to Japan and to the Allied
Powers during World War Two.
Under the international law of war (jus in bello)

- applicable to all nations in the years 1939-45, the assignment

of prisoner of war laborers to work for private parties was
legal and acceptable only if their tasks had “no connection
with the operations of the war.”” If so assigned, laborers had
to be paid “‘at rates in force for work of a similar kind,” with
their wages going “towards improving their position, and the
balance shall be paid them on their release, after deducting
the cost of their maintenance.” Hague Convention on the
Law of War on Land, 36 Stat. 2277, T.S. 539 (1907), Article
6 (emphasis added); see also Geneva Convention Relating to
the Treatment of Prisoners of War, 47 Stat. 2021, T.S. 846
(1929), Article 31.°

If Petitioners’ allegations regarding their enslavement
are true, then either Respondents acted illegally under
international law, or their actions were not undertaken “in
prosecution of the war.” A successful showing by
Respondents that their use of Petitioners’ uncompensated,
forced labor was “in the prosecution of the War” would
constitute an admission of illegal acts, tantamount to a
confession that the zaibatsu were perpetrators of war crimes.
Yet the public record discloses no such confession in the
years immediately following Japan’s surrender, and no
prosecution of any Japanese corporate officer for having
used prisoners of war illegally. Unless Respondents are now
prepared to admit that they committed such war crimes, they
cannot take advantage of the waiver language in Article

7 International law also barred the assignment of “excessive” work to
civilian internees.

8 “(1 Jabor furnished by prisoners of war shall have no direct relation with
the war operations. It is especially prohibited to use prisoners for
manufacturing and transporting arms or munitions of any kind or for
transporting material intended for combatant units.” Geneva Convention
Relating to the Treatment of Prisoners of War, Article 31.

19

14(b) as a matter of law.’ And such a belated confession,
offered in an attempt to obtain the shelter of Article 14(b),
would violate the cardinal rule of domestic and international
legal systems that no one should be permitted to profit from
his own wrong.

Moreover, it is not only not self-evident, but it is
demonstrably incorrect, that no distinction can be made
between the Japanese Imperial government and the industries
that supplied its economic base during the War. That very
distinction was advocated by the United States and endorsed
by this Court in Kawakita v. United States, 343 U.S. 717,
726 (1952) (although “[t]he regulation of the company by the
Japanese government, the freezing of its labor force, the
assignment to it of prisoners of war under military command
were incidents of a war economy,” it does not follow that the
company was acting as part of the war effort, or that it
somehow ceased to be “an organization operating for private
profit under private management”).

Petitioners have alleged, in well-pleaded complaints,
that they were enslaved by Respondents during the War:
that they were abused in various ways, and that they were
forced to work without compensation in order to enrich
private interests. That enrichment occurred, of course, in
substantial measure because the zaibatsu were engaged in
the supply of goods and services in support of the Japanese
wartime economy. But that fact made those businesses
identical to or agents of the Imperial government no more
than Lockheed, Boeing, or any farmer or coal miner became
indistinguishable from the United States by virtue of having
supplied the American economy with transportation
equipment or food products consumed during the Second

° The Hague and Geneva Conventions are appropriate guides for the
understanding and application of the terms of the 1951 San Francisco
Peace Treaty. See Article 11.

20

World War, the Gulf War, or the current War on Terrorism.
That Dow Chemical manufactured Agent Orange for use in
Vietnam does not imply that its factory workers acted “in the
course of the prosecution” of the Vietnam War.

Respondents, therefore, cannot demonstrate that, as a
matter of fact, their exaction of Petitioners’ labor was in the
“prosecution of the war” as that phrase was used in the
Treaty.'® Article 14(b) does not take away the nght of POWs
to sue their abusers, because Petitioners’ claims are not
within the categories that the language of the Treaty
embraces. The conclusion of the court below that Article
14(b) “resolves” these claims must therefore be reversed.

c. Petitioners’ Claims Neither Are,
Nor Are Similar to, “Reparations” Claims.

The Treaty, in Article 14(b), purports to waive “all
reparations claims of the Allied Powers, [and] other claims
of the Allied Powers and their nationals . . .” (emphasis
added). Although this language would appear to reflect a
common understanding that the claims of nationals (such as
those of POWs), as opposed to claims of the Allies
themselves, are not “reparations claims,” Petitioners submit
that theirs are so dissimilar to reparations claims that they
cannot be included in the catch-all word “other.”

Reparations -- a term of art in international law then
and now -- are payments made by governments for injuries
inflicted in the course of hostilities. They are paid, typically
and traditionally, also to governments, for distribution,
often according to a negotiated formula or procedure, to
those able to prove that they were victims of the

'° There is nothing counterintuitive about this result. The words “the
prosecution of the War,” in their common meanings, refer to what
governments do. It is governments, acting through, among others, their
nationals in their military service, that make wars: private companies
such as Respondents may be enlisted in their aid, but they cannot be said
to be “prosecuting” (i.e., spearheading, carrying out) the war effort
merely because they continue to operate their businesses during wartime.
The prosecution of wars in this country is a military function. See 32
C.F.R. § 368.6.

21

belligerency. Thus, in the Reparations for Injuries Suffered
in the Service of the United Nations Case, [1949] 1.C.J. 174,
the International Court of Justice was called upon to advise
whether the United Nations had sufficient international legal
personality — enough resemblance to a nation — to be able to
demand “reparations” from the nascent State of Israel for the
murder of Count Bernadotte, the U.N. peacekeeper in
Jerusalem, by commandos operating under what was to
become the Israeli military structure.

Furthermore, it is true that Article 14(b) of the Treaty
sets out a waiver of reparations claims “and other claims,”
but this language must properly be construed according to
the rule of textual interpretation usually called ejusdem
generis: the general items in a list must be read as members
of the same family as the specific ones. United States v.
Espy, 145 F.3d 1369 (D.C. Cir. 1998); Melugin v. Hames,
38 F.3d 1478 (9" Cir. 1994). The use of terms like “‘and
others” or “etc.” is not the way in which entire classes of
unspoken assumptions are expressed, or important personal
rights of untold numbers of people gained and lost. The
breadth of the category of “reparations claims [and] other
claims” does not extend to private claims of private
individuals against private companies, unless those claims
arose from actions taken “in prosecution of the War”: in
other words, unless they are of the same family of claims as
the others waived in Article 14.

2. Any Treaty Waiver of Petitioners’ Claims

Was Superseded by Subsequent Developments.

Both to ensure fairness to those nations that did not
resolve their war claims against Japan through the 1951
Treaty, and to avoid prejudice to the Allied Powers that were
parties to that instrument, it was agreed as follows:

Japan will be prepared to conclude with any

_ State which signed or adhered to the United

Nations Declaration of January 1, 1942, and

which is at war with Japan . . . which is not a

signatory of the present Treaty, a bilateral

22

oS

Treaty of Peace on the same or substantially

the same terms as are provided for in the

present Treaty. . . . Should Japan make a

peace settlement or war claims settlement

with any State granting that State greater

advantages than those provided by the

present Treaty, the same advantages shall be

extended to the parties to the present Treaty.
Article 26, emphasis added. The text, ratified by the
President of the United States after receiving the advice and
consent of the Senate, included this language, which is every
bit as much “the supreme iaw of the land,” under Article VI _
of the Constitution, as the remainder of the Treaty’s
provisions.

In fact, Japan did subsequently make a number of
“peace settlement[s] or war claims settlement(s] . . . granting
[certain] State[s] . . . advantages” that were “greater . . . than
those provided uy” the San Francisco document, to the
extent that it has been interpreted by the courts below to
include a renunciation of national-vs.-national claims.
Certain states other than the listed Peace Treaty signatories
were granted settlements without waivers of private claims:
an obvicus advantage for their nationals, in comparison with
the situation of United States citizens whose claims the panel
below found to have been sacrificed by their government.
Thus, even if the court below were correct in its
interpretation of Article 14(b), those advantages would
automatically be extended to the United States, according to
the express language of Article 26.

On another point, the court below agreed with the
district court in its interpretation of this Treaty provision,
concluding that it “confers rights only on the ‘parties’ to the
treaties, not on individuals.”"' 317 F.3d 1005, 1026; App.,

"! Judge Walker’s conclusion, adopted by the Ninth Circuit., is also
internally inconsistent or at least asymmetric. On that reading, Article
14(b) extends rights only to governments, not to private entities, such as
Petitioners here. Yet the reading below permits Respondents the right to

23

p. 51a. But the provision of the Treaty does in fact “confer
rights” on individuals, because it is part of United States law,
and it contains express language to the effect that the United
States “shall” have the “greater advantages” given by Japan
to other nations. Since the record clearly indicates that the
United States has never renounced these rights, there is no
basis for the refusal of the courts below to take note of
Japan’s own subsequent actions, made relevant (indeed,
made essential) to this analysis by the express language of
Article 26.

Article 26 is a “most-favored-nation clause,” a
species of draftsmanship often seen in commercial contracts.
It means that if either party extends a preference to any other
entity at any later time, as compared with the instant contract
partner, that benefit is immediately and automatically
extended to the other without the need for a new agreement
or any implementation. Thus, in Kolovrat v. Oregon, 366
U.S. 187, 193-96 (1961), this Court unanimously interpreted
an 1881 treaty between the United States and Serbia, 60 Stat.
1401, T.LA.S. 1501, containing a most-favored-nation
clause, in light of both a pre-existing treaty of the United
States (as it happened, one with Argentina, 10 Stat. 1005
(1853)), and later treaties between Serbia and Poland and
Czechoslovakia (30 L.N.T.S. 185; 85 L.N.T.S. 455). The
Court found the greater advantages contained in those
documents to govern, recognizing that most-favored-nation
clauses have “long [been] used to broaden the scope of rights
protected by treaties.” 366 U.S. at 195.

There is nothing unusual or counterintuitive about the
concept that the nghts of Americans may be interpreted in
light of subsequent developments in the international arena.
Identifying the operative principles and binding norms of
international law may well require analysis of what other

rely upon and to hide behind a supposed waiver of claims against them,
while denying Petitioners any reciprocal right to enforce provisions
which serve to explain, limit, or terminate the effect of that waiver.

24

countries do or have done, but that focus is well within the
traditional mainstream of American jurisprudence.

That customary and conventional international law is
- part of the law of the United States, and has been so since the
earliest days of the Republic, is far beyond dispute. Justice
Gray’s famous pronouncement in The Paquete Habana, 177
U.S. 677, 700(1900), is precisely this: “International law is
part of our law and must be ascertained and administered by
the courts of justice cf appropriate jurisdiction, as often as
questions of right depending on it are duly presented for their
determination.”

When, as in The Paquete Habana or Kolovrat, a legal
instrument such as a Presidential Proclamation or a treaty
makes reference to the possibility cf subsequent
development, there is no contradiction in defining the
content of domestic law by reference to, and therefore as
potentially to be changed by, those later events. Here, the
Treaty says not that its text becomes null and void, or is
subject to renegotiation, should another war claims
settlement agreement involving Japan confer greater benefits
on another country. It says that those additional advantages
shall be extended to the Treaty parties, including the United
States. No “night” to “invoke” this provision need be
asserted by anyone. The conclusion below that the United
States government must perform some affirmative act to be
entitled to this provision is simply without authority in the
Treaty text or the relevant caselaw.

Petitioners’ contention, therefore, is grounded in the
very words of the Treaty: if another nation settles its war
claims with Japan in a way that does not deprive its citizens
of the right to pursue judicial remedies for wrongs done by
private Japanese interests, then American citizens “shall”
have the same right. Even if such claims had been deemed
“waived” before the date of such a more advantageous
agreement, from that date forward, U.S. law would no longer
be obligated to treat them as waived. The Treaty requires

25

Japan to extend the corresponding advantages to the U.S.
automatically, and thus by extension to its nationals.

At least three war claims settlements of Japan do not
purport to abandon, or otherwise to affect in any manner,
claims against Japanese nationals, by whomsoever they
might be asserted, or whenever they may have arisen.
Rather, they expressly waive claims only against Japan’s
government.

Japan’s agreement with Denmark” extends only to
the Japanese government, and does not release claims against
Japanese nationals: see Article III. The agreement between
Japan and Sweden” is identical. The agreement between
Japan and Spain" addresses the settlement of “certain types”
of Spanish war claims, providing only for full and final
discharge of the government of Japan for claims against it,
making no reference to, and therefore offering no release of,
claims between nationals of the two countries.

All of these provisions are clearly more advantageous
than those in Article 14(b) of the Treaty, if that language is
read — as the appeals court read it below — as precluding
Petitioners’ claims: thev permit the pursuit of legal actions
by private citizens against private companies. By the
explicit language of the San Francisco Treaty, therefore, the
right to bring the actions at Bar, not even purportedly
affected by these other instruments signed by Japan,
automatically re-vested in citizens of the United States, even
if the Treaty were to be construed as having taken those
rights away.

'2 Arrangement between the Governments of Japan and Denmark
Regarding Settlement of Certain Danish Claims (May 25, 1959), [1960]
Japanese Annual of Int'l Law 203.

'> Arrangement Between the Governments of Japan and Sweden
Regarding Settlement of Certain Swedish Claims (September 20, 1957),
[1959] Japanese Annual of Int'l Law 186.

'* Exchange of Notes Between the Government of Japan and the
Government of Spain Regarding the Settlement of the Problem
Concerning Certain Types of Spanish Claims (January 8, 1957), [1958]
Japanese Annual of Int'l Law 211.

26

The very existence of these three war claims
settlement agreements, therefore, considered in light of the
language of Article 26, and the express exception in the
Article 14(b) waiver itself regarding what is “otherwise
provided” in the Treaty, means that private claims by United
States nationals against any national of Japan -- including the
Japanese-incorporated Appellees named in these actions —
are not foreclosed by Article 14(b).

Japan also entered into an agreement with the Soviet
Union, which did purport to wz ive claims by Soviets against
Japanese citizens.’ The scope of that waiver, however, was
expressly limited to claims that arose after August 9, 1945:
claims arising before then were unaddressed. Petitioners’
clairns, however, arose significantly before that date, just
days before the unconditional Japanese surrender. The
agreement with the Soviet Union too, therefore, confers
“advantages” not extended to the United States, assuming
that the interpretation of the Treaty in the court below is
correct.

Petitioners urge the Court to consider carefully and
critically the very words of the Treaty itself which expressly,
in light of the subsequent conduct of Japan, recognize their
right to pursue private lawsuits alleging misconduct by
Japanese non-government entities during the War. Nationals
of certain other nations that later settled their claims with
Japan have not lost their right to sue individual wrongdoers:
an “advantage” that the decision below, if allowed to stand,
would deny to U.S. citizens. The Treaty rectifies that
imbalance, and the Treaty, including Article 26, is part of the
laws of our country that the courts are bound to interpret and

to apply.

'5 See Joint Declarations by the Union Soviet Socialist Republics and
Japan (October 19, 1956), [1957] U.N.T.S. 112, 6.

27

ae

3. The Treaty Must Be Read Narrowly,

So As Not to Deprive Americans of the Right

to Pursue “National versus National” Claims.

There is another reason for Petitioners’ position that
the Treaty does not purport to deprive them of their private
claims, and so does not represent a federal “resolution” that
precludes the California statute. The Treaty should be
presumed to be constitutional, requiring a reading in which it
did not take the nghts of American citizens away from them
without compensation, as required under the Fifth
Amendment, unless no other interpretation is possible.

This Court provided a comprehensive overview of
the powers of the President in this area in Dames & Moore v.
Regan, 453 U.S. 654 (1981). Dames & Moore, however,
says nothing about “national versus national” claims.

Rather, in Dames & Moore, the Court addressed the Algiers
Accords, an agreement that affected claims by nationals of
the U.S. only against the Government of Iran, along with its
agencies and instrumentalities, not private Iranian citizens or
interests.-

Petitioners do not contest the proposition that a
sovereign government like ours may settle the claims of its
nationals against foreign states. That is an aspect of
sovereignty recognized in international law. But under
United States constitutional law, the uncompensated “taking’
of a viable claim, which is a property right, is
unconstitutional. Jd., at 688-690. Adhering to the principle
that executive action in the formation of international
undertakings should be presumed to be consistent with the
Constitution, Petitioners submit that an interpretation of the
Treaty as not depriving Americans of their night to property
is to be preferred.

That the waiver of “national versus national” claims
would implicate constitutional limits on the powers to make
treaties or to conduct foreign relations is not an assertion
concocted out of whole cloth by Petitioners. This is the very
position taken by the United States Government recently

28

>

regarding the settlement of forced labor claims by Holocaust
victims against German companies.

On July 17, 2000, the President entered into

Executive Agreements with the Federal Republic of
Germany concerning the resolution of Holocaust-related
claims (including forced labor claims) against German
nationals and German companies, through the establishment
of a foundation, “Remembrance, Responsibility and the
Future.” In those Agreements, however, the President took
precisely the position urged by Petitioners: that claims like
theirs are simply not his to negotiate away. See excerpts at
pp. 121a-131a, infra.

The United States recognized “the importance of. . .
all-embracing and enduring legal peace,” although
acknowledging that private lawsuits had been brought in the
federal courts. Noting that “it would be in the foreign policy
interests of the United States” for the Foundation “to be the
exclusive remedy” for resolving Holocaust claims by U.S.
nationals against German companies, and that dismissal of
the private lawsuits was therefore desirable, the government
could do no more than commit that it “will not raise any
reparations claims against the Federal Republic of
Germany,” and undertake that it would “recommend
dismissal [of pending national versus national lawsuits] on
any valid ground.” Agreement between the U.S. and
Germany, signed July 17, 2000, Annex B, 4 3, App. p. 125a
(emphasis added).

Thus the Executive Branch expressly rejected
Germany’s demand that Holocaust-related forced labor
claims be waived by government fiat. The United States
took the position that whether or not these claims could be
pursued in U.S. courts was “under the U.S. system of
jurisprudence, for the U.S. courts to determine.” Jd. The
United States could take “no position here on the merits of
the legal claims in arguments advanced by plaintiffs or
defendants. The United States does not suggest that its
policy interests concerning the Foundation in themselves

29

provide an independent legal basis for dismissal.” Jd. at ¥ 7;
see also S. D. Murphy, “Nazi-Era Claims Against German
Companies, 94 Am. J. Int’l L. 682, 683-84 (2000).

The conclusions of the court below in this regard are
also inconsistent with the clearly-expressed intent of the
actual negotiators of the San Francisco Treaty with respect to
the scope of Article 14(b). The U.S. negotiating team
wanted an unrestricted, broad waiver of all wartime claims.
Yet it is beyond challenge that Ambassador (later Secretary
of State) John Foster Dulles was forced to compromise on
that goal, because_other Treaty partners rejected it in whole
or in part.

The court below simply assumed that the federal
government has the authority to waive “national versus
national” claims, and that it did so in this case. But such a
move would have been utterly unprecedented in American
history. The negotiators themselves did not intend the
Article 14(b) waiver to extend to “national claims under
private law.” This is further support for the view that Article
14(b) must be construed narrowly, leaving unaffected the
rights of U.S. nationals to pursue private claims against
Japanese nationals.

The court below, in misconstruing the Treaty,
reached the erroneous conclusion that the federal
government has somehow precluded the State of California
from enacting legislative measures to protect its citizens and
others, who may come into court to defend rights accruing
under the statutes and common law of the State. That
conclusion is unwarranted as a matter of law, and should be
reversed.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should issue. .

30

. eS

Respectfully submitted,

Steven M. Schneebaum*/
PATTON BOGGS LLP
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6300

Counsel for Petitioners
*/ Counsel of Record

Ronald Kleinman, Esq.

C. Allen Foster, Esq.

Joe R. Reeder, Esq.
GREENBERG TRAURIG, LLP
800 Connecticut Ave., NW
Suite 500

Washington, DC 20006

(202) 331-3100

David S. Casey, Jr. Esq.
Bonnie E. Kane, Esq.

Wendy M. Behan, Esq.
HERMAN, MATHIS, CASEY
KITCHENS & GEREL, LLP
110 Laurel Street

San Diego, CA 92101

(619) 238-1811

Maury A. Herman, Esq.
Leonard A. Davis, Esq.

David Fox, Esq.

HERMAN, MATHIS, CASEY,
KITCHENS & GEREL, LLP
820 O’Keefe Avenue

New Orleans, LA 70113

(504) 581-4892

James W. Kitchens, Esq.
HERMAN, MATHIS, CASEY,
KITCHENS & GEREL, LLP
610 North Street

Jackson, MS 39202-3116
(601) 355-7444

James W. Parkinson, Esq.
LAW OFFICES OF

JAMES W. PARKINSON
77564 Country Club Drive
Suite B310

Palm Desert, CA 92211-0450
(760) 772-4550

Michael Goldstein, Esq.

LAW OFFICES OF

MICHAEL GOLDSTEIN

120 Birmingham Drive, Ste. 200
Cardiff, CA 92007

(760) 436-1801

Venus Soltan, Esq.
SOLTAN & ASSOCIATES
555 Anton Blvd.

Costa Mesa, CA 92626
(714) 434-7900

Eric Isaacson, Esq.

MILBERG WEISS BERSHAD
HYNES & LERACH LLP

600 West Broadway, Suite 1800
San Diego, CA 92101

(619) 231-1058

Kevin P. Roddy, Esq.

HAGENS BERMAN LLP -
700 S. Flower Street, Suite 2940
Los Angeles, CA 90017-4101
(213) 330-7135

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1666%3A1. Public record. Not legal advice.