Appendix — Tenney v. Mitsui & Co., Ltd.
Supreme Court brief2003
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JOSEF TIBOR DEUTSCH, an
individual; JOSEF TIBOR
DEUTSCH, as the survivor of
George Deutsch, Plaintiffs-
Appellants, v. TURNER
CORPORATION, a Delaware
Corporation with corporate
regional headquarters located in
California; KITCHELL
CORPORATION USA, an
Arizona Corporation authorized
to do business in California;
HOCHTIEF AG, a German
Corporation, Defendants-
Appellees. WOODROW M.
HUTCHISON, Plaintiff-
Appellant, v. MITSUBISHI
MATERIALS CORPORATION;
MITSUBISHI MATERIALS
USA, a business association
purporting to be a California
corporation; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUBISHI
INTERNATIONAL
CORPORATION, a business
association purporting to be a
New York corporation;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association purporting
to be a Delaware corporation,
Defendants-Appellees. LESTER
1-a
:
I. TENNY, Plaintiff-Appellant, v.
MITSUI & CO. LTD., a Japanese
business association; MITSUI &
CO (USA), INC, a business
association purporting to be a
New York Corporation; MITSUI
MINING CO LTD, a Japanese
business association; MITSUI
MINING USA INC, a business
association purporting to be a
Delaware corp, Defendants-
Appellees. SHIRLEY M.
RUBENSTEIN; JULIA E.
STEVENSON; GLEN LEROY,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD; ISHIHARA
CORPORATION, a California
corporation; ISK AMERICAS,
INC., a Delaware corporation,
Defendants-Appellees.
RAYMOND HEIMBUCH;
VIVIAN O. JOHNSON;
WILLIAM R. LOWE; SAM P.
BUSE; ALFRED BEREST;
EDWIN F. LINDROS;
MICHAEL BIBIN; J. S. GRAY;
KARL WILLIAM HOLT;
NORMAN R. MATTHEWS;
DARREL D. STARK; CARMEL
ZIPETO, Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD, a Japanese business
association; ISHIHARA
CORPORATION; ISK
2-a
AMERICAS, INC., a business
association purporting to be a -
Delaware corporation,
Defendants-Appellees. MELODY
SOLIS, individually and on
behalf of a class of persons
similarly situated, Plaintiff-
Appellant, v. NIPPON STEEL
CORPORATION, a Japanese
business association; NIPPON
STEEL TRADING CO., LTD., a
Japanese business association;
NIPPON STEEL USA INC, a
business association purporting to
be a New York corporation;
NIPPON STEEL TRADING
AMERICA, Defendants-
Appellees. HARRY CORRE,
Plaintiff-Appellant, v. MITSUI &
CO. LTD; MITSUI &
COMPANY (USA), INC.;
: MITSUI MINING USA INC;
MITSUI MINING CO., LTD.,
Defendants-Appellees. GARTH
G. DUNN, Plaintiff-Appellant, v.
NIPPON STEEL
CORPORATION, a Japanese
business association; NIPPON
STEEL USA, a business
association purporting to be a
New York Corp., Defendants-
Appellees, and JAPAN IRON &
STEEL, a Japanese business
association; YAWATA IRON &
STEEL, a Japanese business
association; FUJI IRON &
STEEL, a Japanese business
3-a
|
ne en ee ee ee
association; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUBISHI SHOJI;
SUMITOMO CORP.;
SUMITOMO COMMERCIAL
COMPANY, a Japanese business
association, Defendants. JAMES
O. KING, Plaintiff-Appellant, v.
NIPPON STEEL CORP;
NIPPON STEEL USA,
Defendants-Appellees.
PERFECTO LLANZA, on his
own behalf and on behalf of all
others similarly situated;
ALBERTO SALDEJENO;
ACELOPIO GALEDO;
GENEROSO JACOB;
ERNESTO SANTO DOMINGO;
IMELDA SANTO DOMINGO,
Plaintiffs-Appellants, MITSUI &
CO (USA), INC, a business
association; MITSUI MINING
CO., LTD., a Japanese business
association; MITSUBISHI
CORPORATION; NIPPON
STEEL CORP, a Japanese
business association; NIPPON
STEEL USA INC., Defendants-
Appellees. ALBERTO
SALDAJENO; ACELOPIO
GALEDO; GENEROSO JACOB,
individually and on behalf of a
class of persons similarly
situated; PERFECTO LLANZA;
ERNESTO SANTO DOMINGO;
IMELDA SANTO DOMINGO,
4-a
Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD, a Japanese business
association; ISHIHARA
CORPORATION (USA);
TAIHETYO CEMENT, a
Japanese business association;
ONODA USA; KREHA
CORPORATION OF
AMERICA, INC.; MITSUI &
CO. (USA); SHOWA DENKO
. AMERICA, INC.; MITSUI
MINING USA INC;
FURUKAWA ELECTRIC
NORTH AMERICA, INC.;
NIPPON SHARYRO USA, INC.;
SUMITOMO HEAVY
INDUSTRIES (USA); NIPPON
STEEL USA INC.; MITSUBISHI
INTERNATIONAL
CORPORATION; MITSUBISHI
MATERIALS USA
CORPORATION; MITSUBISHI
HEAVY INDUSTRIES
AMERICA, INC., Defendants-
Appellees. ERNESTO SANTO
DOMINGO, individually and on
behalf of a class of persons
similarly situated; IMELDA
SANTO DOMINGO, individually
and on behalf of a class of persons
similarly situated, Plaintiffs-
Appellants, v. ISHIHARA
SANGYO KAISHA, LTD, a
Japanese corportion; ISHIHARA
~ CORPORATION U.S.A.,
California corporation,
5-a
Defendants-Appellees. MANUEL
A. ENERIZ; DEXTER ENERIZ,
Executor of the Estate of Manuel
A. Eneriz, Plaintiffs-Appellants,
v. MITSUI & COMPANY LTD.;
MITSUI & COMPANY (USA),
INC.; MITSUI MINING
COMPANY, LTD.; MITSUI
MINING USA INC, Defendants-
Appellees. RALPH
LEVENBERG, on behalf of
himself and all others similarly
situated, Plaintiff-Appellant, v.
NIPPON SHARYO LTD.;
NIPPON SHARYO USA., INC.,
Defendants-Appellees. HAROLD
W. POOLE; ERNEST LOY;
FRANCIS W. AGNES; ROBERT
C. CLARK; CLARENCE S.
KELLOGG, Plaintiffs-
Appellants, v. NIPPON STEEL
CORP, a Japanese business
association; NIPPON STEEL
TRADING CO., LTD., a business
association purporting to be a
New York corporation; NIPPON
STEEL TRADING AMERICA, a
business association purporting to
be a California corporation,
Defendants-Appellees. SUK
YOON KIM, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant, v.
ISHIKAWAJIMA HARIMA
HEAVY INDUSTRIES LTD.;
IHI INC.; SUMITOMO HEAVY
INDUSTRIES LTD.;
6-a
ae
SUMITOMO HEAVY
INDUSTRIES (USA) INC.,
Defendants-Appellees.
ZHENHUAN MA, Plaintiff-
Appellant, v. KAJIMA
CORPORATION; KAJIMA
CONSTRUCTION SERVICES,
INC.; KAJIMA
DEVELOPMENT
CORPORATION; KAJIMA
ENGINEERING AND
CONSTRUCTION, INC.;
KAJIMA INTERNATIONAL,
INC.; KAJIMA U.S.A., INC,
Defendants-Appellees. SA SON
SIN, Plaintiff-Appellant, .v
MITSUI & CO, LTD.; MITSUI
& CO. (USA); MITSUI
ENGINEERING &
SHIPBUILDING CO., LTD.;
PACECO CORPORATION,
Defendants-Appellees. RUBEN
RESUS; CARLOS CADENILLA,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants, vy. MITSUI
& CO. LTD., a Japanese business
association; MITSUI BUSSAN
KAISHA; MITSUI & CO (USA),
INC; MITSUBISHI
CORPORATION; MITSUBISHI
INTERNATIONAL
CORPORATION, a business
corporation; MITSUBISHI
HEAVY INDUSTRIES, LTD., a
Japanese business association;
MITSUBISHI HEAVY
7-a
INDUSTRIES AMERICA INC., a
business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
association; MITSUBISHI
MATERIALS USA
CORPORATION, a business
association; SUMITOMO
CORP., a Japanese business
association; SUMITOMO CORP.
OF AMERICA, a business
association; KUREHA
CORPORATION OF
AMERICA, a business
association; FURUKAWA
ELECTRIC NORTH AMERICA,
INC., a business association;
TAIHETYO CEMENT, a
Japanese business association;
ONODA USA INC., a business
association; SHOWA DENKO K
K, a Japanese business ©
association, Defendants-
Appellees. SHANG-TING SUNG,
Plaintiff-Appellant, v. MITSUI &
CO, LTD.; MITSUI & CO.
(USA); MITSUBISHI
CORPORATION; MITSUBISHI
| INTERNATIONAL
CORPORATION; MITSUI
MINING CO., LTD.; MITSUI
MINING USA INC, Defendants-
Appellees. RAYMOND
WHEELER; ALEC CHARLES
MURPHY; WILLIAM
SCHMITT; HENDRICK
ZEEMAN; TAMMERUS
8-a
WILLEM CARTER-VISSCHER;
DAVID CLARKE; WILLEM
HENDRIK DE HAAN, Plaintiffs-
Appellants, v. MITSUI & CO.
LTD, a Japanese business
association; MITSUI &
COMPANY (USA), INC., a
business association; MITSUI
MINING COMPANY, LTD., a
Japanese business association;
MITSUI MINING USA INC;
NIPPON STEEL USA;
MITSUBISHI CORPORATION,
MITSUBISHI
INTERNATIONAL CORP-.;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.;
MITSUBISHI MATERIALS
USA CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., Defendants-
Appellees. JAE SIK CHOE,
Plaintiff-Appellant, v. NIPPON
STEEL CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., Defendants-
Appellees. FRANK A. MENTE;
NEVILLE J. BOOKER,
individually and on behalf of
persons similarly situated,
Plaintiffs - Appellants, v. MITSUI
& CO. LTD, a Japanese
association, aka/Mitsui Bussan
Kaisha; MITSUI MINING
COMPANY, LTD., a Japanese
i business association; MITSUI &
COMPANY (USA), INC., a
9-a
business association; NIPPON
STEEL CORPORATION, a
Japanese corporation; NIPPON
STEEL USA INC., a business
association; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUBISHI MATERIALS
USA CORPORATION;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI
INTERNATIONAL
CORPORATION, a business
corporation, Defendants, and
MITSUI MINING USA INC, a
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a
business association, Defendants-
Appellees. AIZHU SU, on behalf
of himself and all others similarly
situated; CHUNSHENG TIAN,
on behalf of himself and all others
similarly situated, Plaintiffs-
Appellants, v. MITSUBISHI
CORPORATION, a corporation;
MITSUBISHI CORPORATION,
a corporation; MITSUI & CO.,
LTD., a corporation; MITSUI
MINING COMPANY, LTD., a
corporation; MITSUI &
COMPANY (USA), INC., a
10-a
corporation; MITSUI MINING
USA INC, a corporation,
Defendants-Appellees. DO GEUN
OH; EUNG CHANG LEE;
YONG HAE LEE, individually
and on behalf of a class of persons
similarly situated, Plaintiffs -
Appellants, v. MITSUI & CO.,
LTD, a Japanese business
association; MITSUI & CO.
(USA), a business association;
MITSUBISHI CORPORATION,
a Japanese business association;
MITSUBISHI CORPORATION,
a business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI MATERIALS
USA CORPORATION, a
business association; NIPPON
STEEL CORP, a Japanese
business association; NIPPON
STEEL USA, a business
association; SHOWA DENKO
AMERICA, INC., a business
association; SHOWA KOGYO, a
Japanese business association,
Defendants-Appellees. GLORIA
TYLER ALFANO; MADELINE
FELKINS; WARREN
11-a
CARRINGER; HOWARD
FRIEDMAN, Dr.; RICHARD
GORDON, Maj.; OAKIE DENT
PACK, on behalf of themselves
and all others similiarily situated,
Plaintiffs-Appellants, v. MITSUI
& COMPANY (USA), INC.;
MITSUI MINING COMPANY,
LTD.; MITSUI MINING USA
_ INC; MITSUBISHI
CORPORATION, a corporation;
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a
corporation; MITSUBISHI.
HEAVY INDUSTRIES, LTD., a
corporation, Defendants-
Appellees. H. JOSEPH
TERRENCE, aka Joseph E.
Terfansky; FRANKLIN D.
GROSS; FREDERICK M.
FULLERTON, JR.; ERMA L.
WEIMER, Plaintiffs-Appellants,
v. MITSUI & CO., LTD., a
Japanese business corporation
aka Mitsui Bussan Kaisha;
MITSUI & COMPANY (USA),
INC., a business association;
MITSUI MINING USA INC, a
business association;
MITSUBISHI CORPORATION,
a Japanese business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
. 12-a
—
business association;
MITSUBISHI MATERIALS
USA CORPORATION, a
business association;
MITSUBISHI CORPORATION,
a business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association,
Defendants-Appellees. ARTHUR
TITHERINGTON; HENRY
GEORGE BLACKHAM;
FERGUS DUNSMORE
MCGHIE, on behalf of
themselves and others similarly
situated, Plaintiffs-Appellants, v.
JAPAN ENERGY CORP, a
Japanese business association;
JAPAN ENERGY USA, a
Delaware Corporation; IRVINE
SCIENTIFIC SALES, a
California Corporation,
Defendants-Appellees. FINNIE B
PRICE, On behalf of himself and
all others similarly situated,
Plaintiff-Appellant, v.
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a
corporation; MITSUBISHI
HEAVY INDUSTRIES
AMERICA INC.; MITSUBISHI
INTERNATIONAL
CORPORATION, a corporation;
MITSUI & CO (USA) INC.;
MITSUI & CO. LTD., a
corporation; MITSUI MINING
13-a
CO LTD; MITSUI MINING USA
INC, a corporation, Defendants-
Appellees.
No. 00-56673, No. 01-17115, No.
01-17116, No. 01-17123, No. 01-
17124, No. 01-17134, No. 01-
17155, No. 01-17157, No. 01- |
17160, No. 01-17172, No. 01- |
17176, No. 01-17177, No. 01-
17185, No. 01-17189, No. 01- |
17195, No. 01-17197, No. 01- |
17201, No. 01-17203, No. 01-
17204, No. 01-17207, No. 01- |
17210, No. 01-17211, No. 01-
17230, No. 01-17243, No. 01-
17251, No. 01-17252, No. 01-
17260, No. 01-17265, No. 01- i
17499 ;
UNITED STATES COURT OF APPEALS FOR THE |
NINTH CIRCUIT |
ORDER AMENDING OPINION
ORDER
The opinion filed January 21, 2003 is hereby amended as
follows:
eres
“y BN BERT oA Dg PUES Dosen
22k} bal ap BE ome ae 7 a a i BA ai _ ene
1. Slip op. at 991, second [*2] full paragraph, line 6,
- after “because a state is,” insert “generally.”
p ? Slip op. at 991, replace the last sentence
(beginning “Because section 354.6 is substantive
law”), including footnote 4, with the following:
14-a
Nevertheless, that distinction does not affect the outcome
here. Our determination of the foreign affairs doctrine
issue does not depend on our conclusion that section
354.6 is substantive law. Whether substantive or
procedural, section 354.6 creates a special rule that
applies only to a newly defined class of tort actions —
actions brought by Second World War slave labor
victims against the entities that enslaved them. This new
tule profoundly alters the likelihood that such actions
will succeed, by not only extending the statute of
limitations for claims that were timely when the statute
took effect (although we doubt that any such claims
existed), but, far more important, by reviving claims that
were already time-barred. In the latter instance, the
statute upset the repose of potential defendants. Such a
revival of liability — even civil liability — is troubling and
raises serious due process questions. We need not
address those questions here, however. The important
[*3] point for our foreign affairs analysis is that the
California legislature created — or at least resurrected — a
special class of tort actions, with the aim of rectifying
wartime wrongs committed by our enemies or by parties
operating under our enemies’ protection.
3. Immediately following the passage inserted above
(after “under our enemies’ protection”) add a new
footnote containing the following text:
Two decisions of the California Court of Appeal, one by
the Second Appellate District and one by the Fourth,
have recently addressed whether section 354.6 is
substantive or procedural in nature. The decisions
reached opposite conclusions. Compare Mitsubishi
Materials Corp v. Superior Court, 2003 Cal. App. LEXIS
182, No. G030056, slip op. at 2 (Cal. Ct. App. Feb. 6,
2003) (“The legislation actually creates a state law claim
which otherwise would not exist . . . .”) with Taiheiyo
15-a
en a”
Cement Corp. v. Superior Court, 105 Cal. App. 4" 398;
129 Cal. Rptr. 2d 451, slip op. at 24 (Cal. Ct. App., 2003)
(“The sole purpose of section 354.6 is to extend the
statute of limitations for common law claims for unpaid
labor and personal injuries arising out of slave or forced
labor.”). Both decisions were issued after our opinion
[*4] was sent to the Clerk for filing.
4. Slip op. at 1005, replace the first full paragraph
with the following: |
Section 354.6 runs afoul of the restriction on the exercise
of foreign affairs powers by the states. Because |
California lacks the power to create a right of action — or, |
| alternatively, to resurrect time-barred claims — in order to
| provide its own remedy for war-related injuries inflicted
by our former enemies and those who operated in their
territories, we hold that section 354.6 is unconstitutional.
With these amendments, the panel has voted
unanimously to deny the petitions for rehearing and
rehearing en banc. The full court has been advised of the
petitions for rehearing en banc, and no active judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. 35. The petitions for rehearing and
rehearing en banc are denied.
The mandate will be held pending a decision in
American Insurance Association v. Low, 154 L. Ed. 2d
768, 123 S. Ct. 817 (2003) (No. 02-722) (granting
certiorari).
16-a
JOSEF TIBOR DEUTSCH, an
individual; JOSEF TIBOR
DEUTSCH, as the survivor of
George Deutsch, Plaintiffs-
Appellants, v. TURNER
CORPORATION, a Delaware
Corporation with corporate
regional headquarters located in
California; KITCHELL
CORPORATION USA, an
Arizona Corporation authorized
to do business in California;
HOCHTIEF AG, a German
Corporation, Defendants-
Appellees. WOODROW M.
HUTCHISON, Plaintiff-
Appellant, v. MITSUBISHI
MATERIALS CORPORATION;
MITSUBISHI MATERIALS
USA, a business association
purporting to be a California
corporation; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUB!SHI
INTERNATIONAL
CORPORATION, a business
association purporting to be a
New York corporation;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association purporting
to be a Delaware corporation,
Defendants-Appellees. LESTER
17-a
I. TENNY, Plaintiff-Appellant, v.
MITSUI & CO. LTD., a Japanese
business association; MITSUI &
- CO (USA), INC, a business -
association purporting to be a
New York Corporation; MITSUI
MINING CO LTD, a Japanese
business association; MITSUI |
MINING USA INC, a business
association purporting to be a
Delaware corp, Defendants-
Appellees. SHIRLEY M.
RUBENSTEIN; JULIA E.
STEVENSON; GLEN LEROY,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD; ISHIHARA
CORPORATION, a California
corporation; ISK AMERICAS,
: INC., a Delaware corporation,
Defendants-Appellees. |
RAYMOND HEIMBUCH; |
VIVIAN O. JOHNSON; |
WILLIAM R. LOWE; SAM P.
BUSE; ALFRED BEREST; |
_ EDWIN F. LINDROS; |
MICHAEL BIBIN; J. S. GRAY;
KARL WILLIAM HOLT;
NORMAN R. MATTHEWS;
DARREL D. STARK; CARMEL i
ZIPETO, Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD, a Japanese business
association; ISHIHARA
CORPORATION; ISK
18-a
AMERICAS, INC., a business
association purporting to be a
Delaware corporation,
Defendants-Appellees. MELODY
SOLIS, individually and on
behalf of a class of persons
similarly situated, Plaintiff-
| Appellant, v. NIPPON STEEL
| CORPORATION, a Japanese
business association; NIPPON
| STEEL TRADING CO., LTD., a
Japanese business association;
NIPPON STEEL USA INC, a
business association purporting to
| be a New York corporation;
NIPPON STEEL TRADING
AMERICA, Defendants-
Appellees. HARRY CORRE,
Plaintiff-Appellant, v. MITSUI &
CO. LTD; MITSUI &
COMPANY (USA), INC.;
MITSUI MINING USA INC;
MITSUI MINING CO., LTD.,
Defendants-Appellees. GARTH
G. DUNN, Plaintiff-Appellant, v.
NIPPON STEEL
CORPORATION, a Japanese
business association; NIPPON
STEEL USA, a business
association purporting to be a
New York Corp., Defendants-
Appellees, and JAPAN IRON &
STEEL, a Japanese business
association; YAWATA IRON &
STEEL, a Japanese business
association; FUJI IRON &
STEEL, a Japanese business
19-a
—
association; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUBISHI SHOJI;
SUMITOMO CORP.;
SUMITOMO COMMERCIAL
COMPANY, a Japanese business
association, Defendants. JAMES
O. KING, Plaintiff-Appellant, v.
NIPPON STEEL CORP;
NIPPON STEEL USA,
Defendants-Appellees.
PERFECTO LLANZA, on his
own behalf and on behalf of all
others similarly situated;
ALBERTO SALDEJENO;
ACELOPIO GALEDO;
GENEROSO JACOB;
ERNESTO SANTO DOMINGO;
IMELDA SANTO DOMINGO,
Plaintiffs-Appellants, MITSUI &
CO (USA), INC, a business
association; MITSUI MINING
CO., LTD., a Japanese business
association; MITSUBISHI
CORPORATION; NIPPON
STEEL CORP, a Japanese
business association; NIPPON
STEEL USA INC., Defendants-
Appellees. ALBERTO
SALDAJENO; ACELOPIO
GALEDO; GENEROSO JACOB,
individually and on behalf of a
class of persons similarly
situated; PERFECTO LLANZA;
ERNESTO SANTO DOMINGO;
IMELDA SANTO DOMINGO,
20-a
Plaintiffs-Appellants, v.
ISHIHARA SANGYO KAISHA,
LTD, a Japanese business
association; ISHIHARA
CORPORATION (USA);
TAIHETYO CEMENT, a
Japanese business association;
ONODA USA; KREHA
CORPORATION OF
AMERICA, INC.; MITSUI &
CO. (USA); SHOWA DENKO
AMERICA, INC.; MITSUI
MINING USA INC;
FURUKAWA ELECTRIC
NORTH AMERICA, INC.;
NIPPON SHARYRO USA, INC.;
SUMITOMO HEAVY
INDUSTRIES (USA); NIPPON
STEEL USA INC.; MITSUBISHI
INTERNATIONAL
CORPORATION; MITSUBISHI
MATERIALS USA
CORPORATION; MITSUBISHI
HEAVY INDUSTRIES
AMERICA, INC., Defendants-
Appellees. ERNESTO SANTO
DOMINGO, individually and on
behalf of a class of persons
similarly situated; IMELDA
SANTO DOMINGO, individually
and on behalf of a class of persons
similarly situated, Plaintiffs-
Appellants, v. ISHIHARA
SANGYO KAISHA, LTD, a
Japanese corportion; ISHIHARA
CORPORATION U.S.A.,
California corporation,
21-a
ee ee
Defendants-Appellees. MANUEL
A. ENERIZ; DEXTER ENERIZ,
Executor of the Estate of Manuel
A. Eneriz, Plaintiffs-Appellants,
v. MITSUI & COMPANY LTD.;
MITSUI & COMPANY (USA),
INC.; MITSUI MINING
COMPANY, LTD.; MITSUI
MINING USA INC, Defendants-
Appellees. RALPH
LEVENBERG, on behalf of
himself and all others similarly
situated, Plaintiff-Appellant, v.
NIPPON SHARYO LTD.;
NIPPON SHARYO USA., INC.,
Defendants-Appellees. HAROLD
W. POOLE; ERNEST LOY;
FRANCIS W. AGNES; ROBERT
C. CLARK; CLARENCE S.
KELLOGG, Plaintiffs-
Appellants, v. NIPPON STEEL
CORP, a Japanese business
association; NIPPON STEEL
TRADING CO., LTD., a business
association purporting to be a
New York corporation; NIPPON
STEEL TRADING AMERICA, a
business association purporting to
be a California corporation,
Defendants-Appellees. SUK
YOON KIM, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant, v.
ISHIKAWAJIMA HARIMA
HEAVY INDUSTRIES LTD.;
IHI INC.; SUMITOMO HEAVY
INDUSTRIES LTD.;
22-a
SS
SUMITOMO HEAVY
INDUSTRIES (USA) INC.,
Defendants-Appellees.
ZHENHUAN MA, Plaintiff-
Appellant, v. KAJIMA
CORPORATION; KAJIMA
CONSTRUCTION SERVICES,
INC.; KAJIMA
DEVELOPMENT
CORPORATION; KAJIMA
ENGINEERING AND
CONSTRUCTION, INC.;
KAJIMA INTERNATIONAL,
INC.; KAJIMA U.S.A., INC,
Defendants-Appellees. SA SON
SIN, Plaintiff-Appellant, .v
MITSUI & CO, LTD.; MITSUI
& CO. (USA); MITSUI
ENGINEERING &
SHIPBUILDING CO., LTD.;
PACECO CORPORATION,
Defendants-Appellees. RUBEN
RESUS; CARLOS CADENILLA,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants, v. MITSUI
& CO. LTD., a Japanese business
association; MITSUI BUSSAN
KAISHA; MITSUI & CO (USA),
INC; MITSUBISHI
CORPORATION; MITSUBISHI
INTERNATIONAL
CORPORATION, a business
corporation; MITSUBISHI
HEAVY INDUSTRIES, LTD., a
Japanese business association;
MITSUBISHI HEAVY
23-a
a aaa arrears sores oe
INDUSTRIES AMERICA INC., a
business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
association; MITSUBISHI
MATERIALS USA
CORPORATION, a business
association; SUMITOMO
CORP., a Japanese business
association; SUMITOMO CORP.
OF AMERICA, a business
association; KUREHA
CORPORATION OF
AMERICA, a business
association; FURUKAWA
ELECTRIC NORTH AMERICA,
INC., a business association;
TAIHETYO CEMENT, a
Japanese business association;
-ONODA USA INC., a business
association; SHOWA DENKO K
K, a Japanese business
association, Defendants-
Appellees. SHANG-TING SUNG,
Plaintiff-Appellant, v. MITSUI &
CO, LTD.; MITSUI & CO.
(USA); MITSUBISHI
CORPORATION; MITSUBISHI
INTERNATIONAL
CORPORATION; MITSUI
MINING CO., LTD.; MITSUI
MINING USA INC, Defendants-
Appellees. RAYMOND
WHEELER; ALEC CHARLES
MURPHY; WILLIAM
SCHMITT; HENDRICK
ZEEMAN; TAMMERUS
24-a
WILLEM CARTER-VISSCHER;
DAVID CLARKE; WILLEM
HENDRIK DE HAAN, Plaintiffs-
Appellants, v. MITSUI & CO.
LTD, a Japanese business
association; MITSUI &
COMPANY (USA), INC., a
business association; MITSUI
MINING COMPANY, LTD., a
Japanese business association;
MITSUI MINING USA INC;
NIPPON STEEL USA;
MITSUBISHI CORPORATION,
MITSUBISHI
INTERNATIONAL CORP.;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.;
MITSUBISHI MATERIALS
USA CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., Defendants-
Appellees. JAE SIK CHOE,
Plaintiff-Appellant, v. NIPPON
STEEL CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., Defendants-
Appellees. FRANK A. MENTE;
NEVILLE J. BOOKER,
individually and on behalf of
persons similarly situated,
Plaintiffs - Appellants, v. MITSUI
& CO. LTD, a Japanese
association, aka/Mitsui Bussan
Kaisha; MITSUI MINING
COMPANY, LTD., a Japanese
business association; MITSUI &
COMPANY (USA), INC., a
25-a
business association; NIPPON
STEEL CORPORATION, a
Japanese corporation; NIPPON
STEEL USA INC., a business
association; MITSUBISHI
CORPORATION, a Japanese
business association;
MITSUBISHI MATERIALS
USA CORPORATION;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI
INTERNATIONAL
CORPORATION, a business
corporation, Defendants, and
MITSUI MINING USA INC, a
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a
business association, Defendants-
Appellees. AIZHU SU, on behalf
of himself and all others similarly
situated; CHUNSHENG TIAN,
on behalf of himself and all others
similarly situated, Plaintiffs-
Appellants, v. MITSUBISHI
CORPORATION, a corporation;
MITSUBISHI CORPORATION,
a corporation; MITSUI & CO..,
LTD., a corporation; MITSUI
MINING COMPANY, LTD., a
corporation; MITSUI &
COMPANY (USA), INC., a
OBR NMOL he KR Ac impo EY carer tite >
EAD: Nab BEN PONE PENNE ONG Me ORES OLIN 17 ERAN CY STUB LS NS AER IR VILLE ARSENE TEI
26-a
corporation; MITSUI MINING
USA INC, a corporation,
Defendants-Appellees. DO GEUN
OH; EUNG CHANG LEE;
YONG HAE LEE, individually
and on behalf of a class of persons
similarly situated, Plaintiffs -
Appellants, v. MITSUI & CO.,
LTD, a Japanese business
association; MITSUI & CO.
(USA), a business association;
MITSUBISHI CORPORATION,
a Japanese business association;
MITSUBISHI CORPORATION,
a business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI MATERIALS
USA CORPORATION, a
business association; NIPPON
STEEL CORP, a Japanese
business association; NIPPON
STEEL USA, a business
association; SHOWA DENKO
AMERICA, INC., a business
association; SHOWA KOGYO, a
Japanese business association,
Defendants-Appellees. GLORIA
TYLER ALFANO; MADELINE
FELKINS; WARREN
2/-a
CARRINGER; HOWARD
FRIEDMAN, Dr.; RICHARD
GORDON, Maj.; OAKIE DENT
PACK, on behalf of themselves
and all others similiarily situated,
Plaintiffs-Appellants, v. MITSUI
& COMPANY (USA), INC.;
MITSUI MINING COMPANY,
LTD.; MITSUI MINING USA
INC; MITSUBISHI
CORPORATION, a corporation;
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a
corporation; MITSUBISHI
HEAVY INDUSTRIES, LTD., a
corporation, Defendants-
Appellees. H. JOSEPH
TERRENCE, aka Joseph E.
Terfansky; FRANKLIN D.
GROSS; FREDERICK M.
FULLERTON, JR.; ERMA L.
WEIMER, Plaintiffs-Appellants,
v. MITSUI & CO., LTD., a
Japanese business corporation
aka Mitsui Bussan Kaisha;
MITSUI & COMPANY (USA),
INC., a business association;
MITSUI MINING USA INC, a
business association;
MITSUBISHI CORPORATION,
a Japanese business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese
business association;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
28-a
business association;
MITSUBISHI MATERIALS
USA CORPORATION, a
business association;
MITSUBISHI CORPORATION,
a business association;
MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.,
a business association,
Defendants-Appellees. ARTHUR
TITHERINGTON; HENRY
GEORGE BLACKHAM;
FERGUS DUNSMORE
MCGHIE, on behalf of
themselves and others similarly
situated, Plaintiffs-Appellants, v.
JAPAN ENERGY CORP, a
Japanese business association;
JAPAN ENERGY USA, a
Delaware Corporation; IRVINE
SCIENTIFIC SALES, a
California Corporation,
Defendants-Appellees. FINNIE B
PRICE, On behalf of himself and
all others similarly situated,
Plaintiff-Appellant, v.
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY
INDUSTRIES, LTD., a
corporation; MITSUBISHI
HEAVY INDUSTRIES
AMERICA INC.; MITSUBISHI
INTERNATIONAL
CORPORATION, a corporation;
MITSUI & CO (USA) INC.;
MITSUI & CO. LTD., a
corporation; MITSUI MINING
29-a
ee
CO LTD; MITSUI MINING USA
INC, a corporation, Defendants-
Appellees.
No. 00-56673, No. 01-17115, No.
01-17116, No. 01-17123, No. 01-
17124, No. 01-17134, No. 01-
17155, No. 01-17157, No. 01-
17160, No. 01-17172, No. 01-
| 17176, No. 01-17177, No. 01-
17185, No. 01-17189, No. 01-
17195, No. 01-17197, No. 01-
17201, No. 01-17203, No. 01-
17204, No. 01-17207, No. 01-
17210, No. 01-17211, No. 01-
17230, No. 01-17243, No. 01-
17251, No. 01-17252, No. 01-
17260, No. 01-17265, No. 01-
17499
UNITED STATES COURT OF
APPEALS FOR THE NINTH
CIRCUIT
317 F.3d 1005; 2003 U.S. App.
LEXIS 850
January 21, 2003, Filed
PRIOR HISTORY:
Appeal from the United States District Court for the Central
Distnct of California. D.C. No. CV-00-04405-SVW. Stephen
V. Wilson, District Judge, Presiding. Appeal from the United
States District Court for the Northern District of California.
D.C. No. CV-00-02163-VRW, D.C. No. CV-00-02357-
30-a
ee
VRW, D.C. No. CV-00-03737-VRW, D.C. No—CV-00-
00064-VRW, D.C. No. CV-00-02359-VRW, D.C. No. CV-
00-02690-VRW, D.C. No. CV-00-03239-VRW, D.C. No.
- CV-99-05042-VRW, D.C. No. CV-00-03240-VRW, D.C.
Nos. CV-00-02960-VRW, CV-00-03240 VRW, CV-00-
03828-VRW, D.C. No. CV-00-03828-VRW, D.C. No. CV-
00-02691-VRW, D.C. No. CV-99-01554-VRW, D.C. No.
CV-00-02360-VRW, D.C. No. CV-99-05303-VRW, D.C.
No. CV-01-02592-VRW, D.C. No. CV-00-03242-VRW,
D.C. No. CV-00-03313-VRW, D.C. No. CV-00-02358-
VRW, D.C. No. CV-00-04278-VRW, D.C. No. CV-99-
05309-VRW, D.C. No. CV-00-03530-VRW, D.C. No. CV-
00-03586-VRW, D.C. No. CV-00-03752-VRW, D.C. No.
CV-00-04277-VRW, D.C. No. CV-00-03648-VRW, D.C.
No. CV-00-02689-VRW, D.C. No. CV-00-02761-VRW.
Vaughn R. Walker, District Judge, Presiding. Jn re World
War IT Era Japanese Forced Labor Litig., 164 F. Supp. 2d
1153; 2001 U.S. Dist. LEXIS 14641].
DISPOSITION:
Judgments of the district courts affirmed.
COUNSEL:
Nate G. Kraut, Law Offices of Nate G. Kraut, Los Angeles,
California, for plaintiff-appellant Josef Tibor Deutsch.
Joseph W. Cotchett, Brice L. Simon and Steven N.
Williams, Cotchett, Pitre, Simon & McCarthy, Burlingame,
California; Lourdes Santos Tancinco, Tancinco Law Offices,
San Francisco, California, for Saldajeno plaintiffs-appellants.
Michael E. Withey, Strittmatter, Kessler, Whelan, Withey,
Coluccio, Seattle, Washington, for Santo Domingo plaintiffs-
appellants.
Robert A. Swift, Denis F. Shiels, Nadia Ezzelarab and Hilary
E. Cohen, Kohn, Swift & Graf, Philadelphia, Pennsylvania;
Jon Van Dyke, Honolulu, Hawaii; Scott W. Wellman, Scott
31-a
R. Warren and Mitsuruku Ushida, Wellman & Warren LLP,
Irvine, California; Rodrigo C. Domingo, Domingo & Dizon,
Mikati City, Philippines; Edward D. Fagan, Fagan &
Associates, Livingston, New Jersey; Michael Witti, Law
Offices, Munchen, Germany; Henry Burstyner, Glennen,
Burstyner & Co., Melbourne, Australia, for Resus, Kim,
Wheeler, Mente and Terrence plaintiffs-appellants.
Steven M. Schneebaum, Esq., Patton Boggs, LLP,
Washington, D.C.; Ronald Kleinman, Esq., C. Allen Foster,
Esq., Joe R. Reeder, Esq. and Jessica Valltos, Esq.,
Greenberg Traurig, LLP, Washington, D.C.; David S. Casey,
Jr., Esq., Bonnie E. Kane, Esq. and Wendy M. Behan, Esq.,
Herman, Mathis, Casey, Kitchens & Gerel, LLP, San Diego,
California; Maury A. Herman, Esq., Leonard A. Davis, Esq.
and David Fox, Esq., Herman, Mathis, Casey, Kitchens &
Gerel, LLP, New Orleans, Louisiana; James W. Kitchens,
Herman, Mathis, Casey, Kitchens & Gerel, LLP, Jackson,
Mississippi; James W. Parkinson, Esq., Law Offices of
James W. Parkinson, Palm Desert, California; Michael
Goldstein, Esq., Law Offices of Michael Goldstein, Cardiff,
California; Venus Soltan, Esq., Soltan & Associates, Costa
Mesa, California, for Poole, Loy, Agnes, Clark and Kellogg,
plaintiffs-appellants.
Daniel C. Girard, Girard, Gibbs & De Bartolomeo, LLP, San
Francisco, California; Anthony K. Lee, San Francisco,
California, for King and Levenberg plaintiffs-appellants.
William S. Lerach, Eric A. Isaacson, Frank J. Janecek, Jr.,
Joseph D. Daley and Patrick W. Daniels, Milberg, Weiss,
Bershad,. Hynes & Lerach LLP, San Diego, California;
Michael Rubin and Linda Lye, Altshuler, Berzon, Nussbaum
& Demain, San Francisco, California; Kevin P. Roddy,
Hagens Berman LLP, Los Angeles, California; John J.
Bartko, William I. Edlund and Robert H. Bunzel, Bartko,
Zankel, Tarrant & Miller, San Francisco, California; Albert
32-a
a
H. Meyerhoff, Milberg, Weiss, Bershad, Hynes & Lerach,
LLP, Los Angeles, California; Li Yang, Law Offices of Li
Yang, New York, New York; Howard D. Finkelstein and
Jeffrey R. Krinsk, Finkelstein & Krinsk, San Diego,
California; Jonathan W. Cuneo, The Cuneo Law Group,
P.C., Washington, D.C.; Thomas L. Galloway, Galloway &
Associates, Boulder, Colorado; David R. Scott and Neil
Rothstein, Scott & Scott, LLC, Colchester, Connecticut;
Henry H. Rossbacher, Rossbacher & Associates, Los
Angeles, California, for Kim plaintiffs-appellants.
Steve W. Berman and Jeffrey T. Sprung, Hagens Berman
LLP, Seattie, Washington; Kevin P. Roddy, Hagens Berman
LLP, Los Angeles, California, for Titherington, Blackham
and McGhie plaintiffs-appellants. Peter I. Ostroff, Mark E.
Haddad, Lee L. Auerbach, Ronald L. Steiner, Sarah J.
Heidel, Sidley, Austin, Brown & Wood LLP, Los Angeles,
California, for defendants-appellees Nippon Sharyo Ltd. and
Nippon Sharyo U.S.A., Inc.
John H. Beisner and John F. Niblock, O'Melveny & Meyers
LLP, Washington, D.C., for defendants-appellees Mitsubishi
Materials Corporation and Mitsubishi Materials U.S.A.
Corporation.
Ame D. Wagner, Morrison & Foerster LLP, for defendants-
appellees Mitsubishi Corporation and Mitsubishi
International Corporation.
Matthew Digby, Bingham Dana LLP, for defendants-
appellees Mitsui Mining Co., Ltd., Mitsui Mining U.S.A.,
Inc., Nippon Sharyo U.S.A., Inc., Taiheiyo Cement U:S.A.,
Inc., Japan Energy Corporation, Japan Energy U.S.A.,
Furukawa Electric North America, Inc., and Irvine Scientific
Sales Co., Inc.
33-a
Sara D. Schotland, Cleary, Gottlieb, Steen & Hamilton, for
defendant-appellee Showa Denko America, Inc. Arthur W.
Harrigan, Jr., Danielson, Harrigan & Tollefson, LLP, for
defendants-appellees Mitsubishi Heavy Industries, Ltd. and
Mitsubishi Heavy Industries America, Inc.
Neil A. F. Popovic, Heller, Ehrman, White & Mcauliffe, for
defendant-appellee Showa Denko Amenica, Inc.
Paul Doyle, Kelley, Drye & Warren LLP, for defendant-
appellee Kreha Corporation of America.
Christopher Landau, Kirkland & Ellis, for defendant-
appellee Sumitomo Heavy Industnes (U.S.A.) and Sumitomo
Heavy Industnes, Ltd.
Douglas E. Mirell, Loeb & Loeb LLP, for defendants-
appellees Taiheiyo Cement U.S.A., Inc., Furukawa Electric
North America, Inc., Japan Energy Corporation, Japan
Energy (U.S.A.), Inc. and Irvine Scientific Sales Co., Inc.
Junji Masuda, Masuda & Ejin, for defendant-appellee Japan
Energy Corporation, Japan Energy (U.S.A.), Inc., and Irvine
Scientific Sales Co., Inc.
David M. Balabanian, Christopher B. Hockett, Thomas S.
Hixson and J. Leah Castella, McCutchen, Doyle, Brown &
Enersen, LLP, San Francisco, California, for defendants-
appellees Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc.
Barbara Croutch, Pillsbury Winthrop, LLP, Los Angeles,
California, for defendants-appellees Mitsubishi Heavy
Industries America Inc. and Mitsubishi Heavy Industries,
Ltd.
Nathan Lane III and Joseph A. Meckes, Squire, Sanders &
Dempsey LLP, San Francisco, California, for defendants-
34-a
appellees Ishihara Corporation (U.S.A.), Ishihara Sangyo
Kaisha, Ltd. and ISK Americas Incorporated.
Margaret K. Pfeiffer, Sullivan & Cromwell, Washington
D.C., for defendants-appellees Nippon Steel U.S.A., Inc.,
Nippon Steel Corporation, Nippon Steel Trading America,
Inc. and Nippon Steel Trading Co., Ltd.
Bruce E. H. Johnson, Davis, Wright, Tremaine, for
defendants-appellees Mitsubishi Heavy Industries, Ltd. and
Mitsubishi Heavy Industries America, Inc.
A. Victor Antola, Latham & Watkins, for defendants-
appellees Kajima U.S.A., Inc., Kajima International, Inc.,
Kajima Engineering and Construction, Inc., Kajima
Development Corporation and Kajima Construction
Services, Inc.
Lloyd W. Aubry, Jr., Morrison & Foerster, LLP, for
defendants-appellees Ishikawajima-Harima Heavy Industries
Co., Ltd. and IHI, Inc.
Cynthia S. Papsdorf and Sheri M. Schwartz, Kelley Drye &
Warren LLP, Los Angeles, California; Bud G. Holman, Esq.,
Kelley Drye & Warren LLP, New York, New York, for
defendants-appellees The Turner Corporation and Kitchell
Corporation.
JUDGES:
Before: Stephen Reinhardt, Stephen S. Trott and Barry G.
Silverman, Circuit Judges. Opinion by Judge Reinhardt.
OPINIONBY:
Stephen Reinhardt
35-a
OPINION:
REINHARDT, Circuit Judge:
Plaintiffs-Appellants in these consolidated cases allege
that they were forced to work as slave laborers for German
and Japanese corporations during the Second World War.
They seek damages and other remedies for lost wages and
for other atrocious injuries they suffered in the course of
their forced labor. Defendants-Appellees are corporations (or
successors or affiliates of those corporations) that allegedly
committed these atrocities.
A California statute passed in 1999 creates a cause of
action against such defendants for claims involving Second
World War slave labor. nl Cal. Code Civ. Proc. § 354.6.
Under the statute, these claims are not time-barred if
commenced on or before December 31, 2010. Jd. Although
Appellants assert a variety of statutory and common law
claims for relief, all raise section 354.6 as the primary basis
for bringing their suits so many years after the alleged
wrongs were committed. Reluctantly, we hold that section
354.6 is invalid under the United States Constitution and that
in its absence Appellants’ remaining claims are time-barred.
nl Although the statute distinguishes between
"slave laborers,” see Cal. Code Civ. Proc. §
354.6(a)(1), and "forced laborers,” see § 354.6(a)(2),
the distinction is generally immaterial to the analysis
in this opinion. We generally use the term "slave
laborer” to refer to both categories of workers.
Background
36-a
These cases concern the terrible abuses that German and
Japanese corporate interests inflicted both on civilians and
on soidiers captured by German and Japanese military forces
during the Second World War. The corporations and their
managers, with the cooperation and encouragement of their
governments, subjected many individuals to vicious cruelties
and forced them to work long hours without pay. The slave
workers were often underfed, physically beaten, exposed to
dangerous conditions, and denied medical care; many were
murdered, and others died as a result of the maltreatment
they suffered. Among these slave laborers were, tragically,
many who became victims of the Holocaust, the most
atrocious act ever perpetrated by a civilized (or uncivilized)
people, an act unparalleled in history. Indeed. the Holocaust
represents the worst historic manifestation of the perpetual
human condition known as anti-Semitism, a phenomenon
that is still thriving in all too many parts of the world today.
n2
n2 It is plainly Holocaust survivors who are the
intended beneficiaries of section 354.6, which speaks
of "concentration camps" and "ghettoss,” mentions no
power by name other than the "Nazi regime,” and
never employs the term "Axis Powers,” which is the
usual collective term for the enemies of the Allied
Powers. Ironically, among the hundreds of thousands
of plaintiffs in the cases before us, there is only one
Holocaust survivor. All the other plaintiffs suffered
their injuries in Asia at the hands of Japanese
companies. Whatever the intended purpose of the
California statute, the text of section 354.6 appears to
be broad enough to encompass all the plaintiffs’
claims, and not just those of the one Holocaust
survivor. We follow the district court and all the
parties before us in assuming that such is the case.
37-a
I. The Cases
A. Deutsch v. Turner
The suit by Appellant Josef Tibor Deutsch ("Deutsch") is
the only action before us concerning wrongs committed by
German rather than Japanese corporations and the only
action that was not consolidated with other cases by the
district court. It is, in other words, the only Holocaust case at
issue here, and it, unlike most of the Japanese cases, involves
only a single plaintiff.
Currently a resident of California, Deutsch, a Jew, was
born and raised in Hungary. Deutsch asserts that, in 1944,
when he was a child, the Nazis took over his town and
transported him and his brother Georg to Auschwitz. There
the brothers were tortured and forced to work as slaves for
14-hour days, seven days a week. Their work was for the
benefit of private corporations, which entered into
agreements with the Nazi government, whereby they paid the
Nazis less than the prevailing wage for the work of the
slaves. The corporations for which the Deutsch children
labored included Appellee Hochtief AG ("Hochtief"), one of
Germany's largest and oldest construction companies. A
civilian employee of Hochtief overseeing the slave laborers
in their work for Hochtief beat Deutsch's brother Georg.
Georg ultimately died from his injuries. By a stroke of good
fortune, Deutsch, unlike most of his coreligionists, survived.
On April 7, 2000, Deutsch filed a complaint in the
Superior Court of California against Hochtief, its wholly
owned subsidiary the Turner Corporation, a Delaware
corporation, and the Kitchell Corporation, an Anzona
corporation that Hochtief owns in part. Deutsch alleged
intentional infliction of emotional distress, unlawful business
practices under the California Business and Professions
Code, quantum meruit, and wrongful death. The action was
removed to federal court on the ground of diversity
jurisdiction.
38-a
Deutsch's basis for bringing the action so long after the
alleged acts is section 354.6 of the California Code of Civil
Procedure, which confers jurisdiction on the Superior Court
to hear claims by "any Second World War slave labor
victim" or "Second World War forced labor victim," or their
heirs, against "any entity or successor in interest thereof, for
whom that labor was performed, either directly or through a
subsidiary or affiliate." Cal. Code Civ. Proc. § 354.6(b).
Section 354.6 permits such actions to be brought on or
before December 31, 2010, regardless of any otherwise
applicable statute of limitations. § 354.6(c).
The district court dismissed the action as presenting a
non-justiciable political question. Deutsch v. T; urner, No. CV
00-4405 (C.D. Cal. Aug. 25, 2000).
B. In re World War II Era Japanese Forced Labor
Litigation
The consolidated appeal before us also involves 28 other
suits, all by victims and heirs of victims against Japanese
business entities. Some were brought as class actions.
Because there are so many complaints, and because the
precise factual allegations do not bear on our decision, we do
not here recount the details of the injuries that the various
Appellants endured. Unlike Deutsch, these individuals --
some civilians, some soldiers who were prisoners of war --
were not selected because of their religious affiliation and
were not victims of an overall plan to exterminate an ethnic
or religious group. Rather, they became subject to the
Japanese slave labor program either because they opposed
the Japanese war efforts, in one Capacity or another, or
simply because they were in the wrong place at the wrong
time. In any event, they were all subjected to serious
mistreatment, including starvation, beatings, physical and
mental torture, being transported in unventilated cargo holds
of ships, and being forced to make long marches under a
tropical sun without water. Some survived, while others were
ultimately executed, or died from disease or physical abuse.
39-a
Twenty-seven of the suits against the Japanese corporate
interests were originally brought in Califorma Supenor
Court, while one was initiated in the United States District
Court for the Central District of California. The claimants
demanded damages and other relief, raising claims under
California Code of Civil Procedure section 354.6, and
alleging, variously, assault and battery, unjust enrichment,
conspiracy, false imprisonment, intentional infliction of
emotional distress, conversion, quantum meruit, unfair
business practices under California Business and Professions
Code sections 17200 ef seg., involuntary servitude under
California Penal Code section 181 and Article I, § 6 of the
California Constitution, and violations of international law
under the Alien Tort Claims Act, 28 U.S.C. § 1350. As
defendants they name both Japanese corporations that they
allege committed the injuries and successors and affiliates of
those corporations. The suits filed in state court were
removed to federal court; all were then consolidated in the
Northern District of California. The district court denied
motions to remand and dismissed all claims.
Appellants in the majority of the Japanese cases were, at
the time of the occurrences that form the basis for these
lawsuits, nationals of the United States or of other Allied
nations. Many were in military service and were taken as
prisoners of war. The district judge dismissed these cases on
the ground that they were barred by a provision of the Treaty
of Peace ending the war between the Allied Powers and
Japan. n3 Jn re World War II Era Japanese Forced Labor
Litig., 114 F. Supp. 2d 939, 944-49 (N.D. Cal. 2000) (Forced
Labor (Allied I)); In re World War II Era Japanese Forced
Labor Litig., No. MDL-1347 (N.D. Cd. Feb. 8, 2001)
(Forced Labor (Allied I1)); In re World Wer II Era Japanese
Forced Labor Litig., 164 F. Supp. 2d 1153, 1157 (N.D. Cal.
2001) (Forced Labor (Filipinos)).
40-a
n3 The provision that had this effect is Article
14(b), which provides as follows:
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.
Treaty of Peace with Japan, Sept. 8, 1951, art. 14(b), 3
U.S.T. 3169, T.I.A.S. No. 2490. The district court held
that claims by Allied nationals against Japanese
corporations were barred under the clause waiving
"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."
Forced Labor (Allied I), 114 F. Supp. 2d at 944-49
(N.D. Cal. 2000).
Appellants in the remaining cases were Korean and
Chinese nationals. The district court held that their claims
were not affected by the Treaty of Peace between the Allies
and Japan, because these claimaints were not Allied
nationals or nationals of any signatory of that treaty. Jn re
World War II Era Japanese Forced Labor Litig., 164 F.
Supp. 2d 1160, 1165-68 (N.D. Cal. 2001) (Forced Labor
(Koreans)). The court dismissed these cases nonetheless, on
the grounds that section 354.6 was an unconstitutional
intrusion on the foreign affairs powers of the United States,
and that the remaining claims were time-barred. /d. at 1168-
78.
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II. Constitutionality of Section 354.6 Under Foreign
Affairs Doctrine
A. Section 354.6 and Its Effect
All Appellants rely on section 354.6 of the California
Code of Civil Procedure. Because it can best be understood
when read as a whole, we quote it in full:
§ 354.6.
(a) As used in this section:
(1) "Second World War slave labor victim" means any
person taken from a concentration camp or ghetto or diverted
from transportation to a concentration camp or from a ghetto
to perform labor without pay for any period of time between
1929 and 1945, by the Nazi regime, its allies and
sympathizers, or enterprises transacting business in any of
the areas occupied by or under control of the Nazi regime or
its allies and sympathizers.
(2) "Second World War forced labor victim" means any
person who was a member of the civilian population
conquered by the Nazi regime, its allies or sympathizers, or
prisoner-of-war of the Nazi regime, its allies or
sympathizers, forced to perform labor without pay for any
period of time between 1929 and 1945, by the Nazi regime,
its allies and sympathizers, or enterprises transacting
business in any of the areas occupied by or under control of
the Nazi regime or its allies and sympathizers.
(3) "Compensation" means the present value of wages
and benefits that individuals should have been paid and
damages for injures sustained in connection with the labor
performed. Present value shall be calculated on the basis of
the market value of the services at the time they were
performed, plus interest from the time the services were
performed, compounded annually to date of full payment
42-a
without diminution for wartime or post-war currency
devaluation.
(b) Any Second World War slave labor victim, or heir of
a Second World War slave labor victim, Second World War
forced labor victim, or heir of a Second World War forced
labor victim, may bring an action to recover compensation
for labor performed as a Second World War slave labor
victim or Second World War forced labor victim from any
entity or successor in interest thereof, for whom that labor
was performed, either directly or through a subsidiary or
affiliate. That action may be brought in a superior court of
this state, which court shall have jurisdiction over that action
until its completion or resolution.
(c) Any action brought under this section shall not be
dismissed for failure to comply with the applicable statute of
limitation, if the action is commenced on or before
December 31, 2010.
Appellants and the State of California as amicus seek to
characterize section 354.6 as a purely procedural measure by
reducing its scope to the provision regarding the limitations,
as set forth in subsection (c). The entire effect of section
354.6, they argue, is to extend the statute of limitations for
claims that are already available to remedy Nazi-era slave
labor. They cite an impressive range of possible sources of
substantive law prohibiting slave labor, including state
Statutes and common law, the United States Constitution,
and international law. The reference in subsection (c) to "the
applicable statute of limitations" supports their
interpretation: If a statute of limitations is already
"applicable," perhaps it is because subsection (c)
contemplates a pre-existing cause of action, rather than a
cause of action created under section 354.6.
However, section 354.6 can be viewed as purely
procedural only when subsection (c) is viewed in isolation
from the rest of the provision. Most important, the first
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ee
sentence of subsection (b) explicitly creates a cause of action
by providing that certain individuals "may bring an action”
for certain wrongs. See Verizon Md. Inc. v. Pub. Serv.
Comm'n, 535 U.S. 635, __, 535 U.S. 635, 122 S. Ct. 1753,
1759, 152 L. Ed. 2d 871 (2002) (noting that language in a
statute providing that party "may bring an action” "reads like
the conferral of a private nght of action"). Appellants’
recitation of pre-existing causes of action for slave labor,
whether under other statutes or other bodies of law, is
therefore fruitless. Regardless of any pre-existing law, the
California legislature chose to create a specific cause of
action for persons subjected to slave labor by the Nazis and
their allies and sympathizers. If confirmation of this reading
is required, it is found in those passages of section 354.6 that
set forth the details of the new cause of action. The section
defines the class of plaintiffs who may sue under that cause
of action, see § 354.6(a)(1), (2), sets the method for
measuring damages, see § 354.6(a)(3), and establishes a
special rule regarding liability of corporations affiliated with
the wrong-doer, see § 354.6(b). Even the language of the
statute of limitations provision itself limits the application of
the statute of limitations to "actions brought under this
section,” thus confirming that section 354.6 creates a cause
of action.
Appellants’ only remaining argument for the procedural
nature of section 354.6 is its placement within the Code of
Civil Procedure, in Title Two: Time of Commencing Civil
Actions. However, [HN1] where the meaning of a statutory
provision is clear, we do not rely upon the location the
legislature chose for it in its system of codification, see
Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111
F.3d 1322, 1328 (7th Cir. 1997), just as we do not rely upon
the headings and titles of sections in such circumstances.
Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R.,
331 U.S. 519, 528-29, 91 L. Ed. 1646, 67 S. Ct. 1387 (1947).
The reason for the placement of section 354.6 within the
procedural code is, in any event, not difficult to explain: The
44-a
most striking aspect of the section is, indeed, its statute of
limitations, which would allow the commencement of a suit
more than 60 years after the occurrence of the injury. Jd.
Section 354.6's placement, therefore, does not change our
view that the section is substantive in nature.
The parties debate whether section 354.6 is substantive
or procedural primarily in the context of the Appellees’ due
process challenge, which we do not address. The substantive
nature of the provision, however, is relevant also to the
foreign affairs doctrine analysis in which we engage below,
because a state is more likely to exceed the limits of its
power when it seeks to alter or create rights and obligations
than when it seeks merely to further enforcement of already
existing rights and duties. Because section 354.6 is
substantive law, we do not have occasion to address whether
the extension of the statute of limitations, without more,
would be legally permissible. n4
n4 Even if it were merely procedural, section 354.6
would go further than merely extending the statute of
limitations for existing claims; it would actually revive
claims that had been previously time-barred, thus
“upsetting the repose of potential defendants. This
revival of liability -- even civil liability -- is troubling.
We do not address here whether such a revival violates -
due process.
B. Foreign Affairs Doctrine Analysis
Appellees argue that section 354.6 exceeds California's
power to engage in foreign affairs. We agree. n5
n5 Some Appellants assert that federal jurisdiction
is lacking over their claims. We address that issue
below.
45-a
The Constitution does not create an express, general power
over foreign affairs but rather allocates particular powers
related to foreign affairs to particular federal actors. It
appoints the President as "Commander in Chief of the Army
and Navy of the United States," U.S. Const., art. ll, § 2, cl.
1, and authorizes him to "make Treaties, provided two thirds
of the Senators present concur," to "appoint Ambassadors"
with the "Advice and Consent of the Senate,” id. cl. 2, and to
"receive Ambassadors and other public Ministers,” id. § 3. It
grants to Congress the power to "lay and collect ... Duties,
Imposts, and Excises," to "provide for the common
Defence,” id. art. I, § 8, cl. 1, to "regulate Commerce with
foreign Nations," id. art. I, § 8, cl. 3, to "establish an
uniform Rule of Naturalization,” id. cl. 4, to "define and
punish Piracies and Felonies committed on the high Seas,
and Offences against the Law of Nations,” id. cl. 10, to
"declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water," id. cl.
11, to "raise and_support Armies,” id. cl. 12, to "provide and
maintain a Navy," id. cl.-13, and to regul?’2 "the land and
naval forces,” id. cl. 14.
While the Constitution allocates these foreign affairs
powers specifically to the federal government, it also
expressly prohibits the states from exercising certain foreign
relations powers, including both some of those expressly
allocated to the federal government and a few others. [HN2]
"No State shall enter into any) Treaty, Alliance, or
Confederation; grant Letters of Marque and Repnisal" or,
without consent of Congress, "lay any Imposts or Duties on
Imports or Exports," "keep Troops or Ships of War in time of
Peace,” “enter into any Agreement or Compact ... with a
foreign Power," or "engage in War, unless actually invaded.”
Id. § 10.
Because the Constitution mentions no general foreign
affairs power, and because only a few specified powers
46-a
a ——— =~ TT TT TTS ttt eterna
related to foreign affairs are expressly denied the states, one
might assume that, with certain exceptions, states are free to
pursue their own foreign policies. This is not, however, the
case. To the contrary, the Supreme Court has long viewed
the foreign affairs powers specified in the text of the
Constitution as reflections of a generally applicable
constitutional principle that power over foreign affairs is
reserved to the federal government. The Court has
sometimes expressed this principle in expansive terms,
declaring, for example, that [HN3] "power over external
affairs is not shared by the States; it is vested in the national
government exclusively." United States v. Pink, 315 U.S.
203, 233, 86 L. Ed. 796, 62 S. Ct. 552 (1942); see also
Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889)
(The Chinese Exclusion Case) ("For local interests the
several States of the Union exist, but for national purposes,
embracing our relations with foreign nations, we are but one
people, one nation, one power.").
The implication of the general principle is that [HN4]
"even in [the] absence of a treaty" or federal statute, a state
may violate the constitution by "establishing its own foreign
policy." Zschernig v. Miller, 389 U.S. 429, 441, 19 L. Ed. 2d
683, 88 S. Ct. 664 (1968). n6 Zschernig concerned an
Oregon statute that provided for escheat of estate property
claimed by a nonresident alien unless United States citizens
had reciprocal rights in the country of the alien's residence
and foreign heirs in that country would have the night to
receive the proceeds of Oregon estates without confiscation.
Id. at 430-31. The Court held that, while a reciprocity statute
of this sort was not facially invalid, probate courts applying
it impermissibly relied on inquiries into the type of
governments that obtain in particular foreign nations --
whether aliens under their law have enforceable rights,
whether the so-called "rights" are merely dispensations
turning upon the whim or caprice of government officials,
whether the representation of consuls, ambassadors, and
other representatives of foreign nations is credible or made in
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good faith, whether there is in the actual administration in
the particular foreign system of law any element of
confiscation. —
Id. at 434. In short, the Court found that the application of
the statute depended less on an evaluation of the stated law
of a particular country than on whether that country’s
political system was legitimate in the view of the Oregon
courts. See id. at 440 (noting that state courts had held that
communist and fascist countries did not grant nights
reciprocal to those of Oregonians). To condition the
application of state law on the political system of a foreign
country was "an intrusion by the State into the field of
foreign affairs which the Constitution entrusts to the
President and the Congress.” Jd. at 432.
n6 The doctrine has been referred to as "dormant
foreign affairs preemption," or simply as "the foreign
affairs power." See Gerling Global Reinsurance
Corp. of Am. v. Low, 240 F.3d 739, 751 n.9 (9th Cir.
2001) (internal quotation marks removed), cert.
granted sub nom. Am. Ins. Ass'n v. Low, 71 U.S.L.W.
3373 (2003).
Despite the broad language of Pink and the Chinese
Exclusion Case, however, Zschernig is "the only case in
which the Supreme Court has struck down a state statute as
violative of the foreign affairs powe1.” Int'l Ass'n of Indep.
Tanker Owners v. Locke, 148 F.3d 1053, 1069 (9th Cir.
1998), rev'd in part on other grounds sub nom. United
States v. Locke, 529 U.S. 89, 146 L. Ed. 2d 69, 120 S. Ct.
1135 (2000). Zschernig has been applied sparingly, because
the Supreme Court has held that [HN5] a statute does not
violate the constitution where it merely has "some incidental
or indirect effect in foreign countries.” Clark v. Allen, 331
U.S. 503, 517, 91 L. Ed. 1633, 67 S. Ct. 1431 (1947)
48-a
(upholding facially a statute similar to that subsequently
struck as applied in Zschernig). n7
n7 Other courts have, however, invalidated statutes
under foreign affairs doctrine. See, e.g., Nat'l Foreign
Trade Council v. Natsios, 181 F.3d 38, 49-61 (1st Cir.
1999) (invalidating Massachusetts law restricting
ability of Massachusetts and its agencies to purchase
goods or services from individuals or companies
engaged in business with Burma), affd on other
grounds sub nom. Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 147 L. Ed. 2d 352, 120 S. Ct.
2288 (2000); Springfield Rare Coin Galleries, Inc. v.
Johnson, 115 Ill. 2d 221, 236-37, 104 Ill. Dec. 743,
503 N.E.2d 300 (1986) (invalidating state statute
excluding South African coins from otherwise
~ generally applicable state tax exemptions).
Noting that "the federal government's foreign affairs
power .... is rarely invoked by the courts," we have declined
to invalidate under Zschernig a California statute with
certain superficial similarities to section 354.6. Gerling
Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 752
(9th Cir. 2001), cert. granted sub nom. Am. Ins. Ass'n vy.
Low, 71 U.S.L.W. 3373 (2003). Gerling concerned
California's Holocaust Victim Insurance Relief Act, Cal. Ins.
Code § § 13800-13807 ("HVIRA"), which requires insurers
doing business in California to file certain information about
any insurance policies that they or companies "related" to
them sold in Europe and that were in effect between 1920
and 1945. Id.; see Gerling, 240 F.3d at 743, 753. While
recognizing that HVIRA involved foreign affairs, we held
that it was constitutional because of the combination of two
factors: first, "HVIRA, on its face, involves commerce
alone" -- and thus should be considered under the Supreme
49-a
Court's foreign commerce cases rather than under the foreign
affairs cases; and second, HVIRA "is not, on its face,
directed at any particular foreign country" -- and thus is
comparatively unlikely to interfere with the foreign relations
of the federal government. Jd. at 753.
While Gerling shows that the general prohibition against
state involvement with external affairs is not as broad as
some judicial statements would imply, it also suggests a
mode of analysis that is relevant to the cases before us. In
particular, Gerling distinguishes among statutes according to
the foreign affairs functions that they implicate. Gerling
suggests that statutes that "mainly involve foreign
commerce" are among those least likely to be held invalid
under the foreign affairs power. Jd. The regulation of
commerce is simply not central to the foreign affairs power
that is off limits to states. n8 For present purposes, we must
consider the importance to foreign affairs analysis of another
subset of foreign affairs powers: the power of the federal
government to make and to resolve war, including the power
to establish the procedure for resolving war claims.
n8 State regulation of foreign commerce might,
however, exceed constitutional limitations under other
constitutional doctrines. See, e.g., Barclays Bank
PLC yv. Franchise Tax Bd., 512 U.S. 298, 328, 129 L.
Ed. 2d 244, 114 S. Ct. 2268 (1994) (considering
whether state's international tax reporting system
violated either dormant commerce clause or federal
government's ability to speak in "one voice."”)
While neither the Constitution nor the courts have
defined the precise scope of the foreign relations power that
is denied to the states, it is clear that matters concerning war
are part of the inner core of this power. Of the eleven clauses
of the Constitution granting foreign affairs powers to the
50-a
President and Congress, see supra, seven concern preparing
for war, declaring war, waging war, or settling war. n9 Most
of the Constitution's express limitations on states’ foreign
affairs powers also concern -war. nl0 Even those foreign
affairs powers in the Constitution that do not expressly
concern war and its resolution may be understood, in part, as
a design to prevent war. Indeed, as the Federalist shows,
supporters of the new Constitution believed that disunity in
international affairs risked unnecessary war. See, e.g, THE
FEDERALIST, NO. 3, at 13 (Clinton Rossiter ed., 1961)
("Fewer just causes of war will be given by the national
government, [and] it will also be more in their power to
accommodate and settle them amicably."). The Supreme
Court cases under the foreign affairs power have also been
driven, in part, by this concern. Thus the inheritance
provision at issue in Zschernig, although superficially
unrelated to war, was seen by a Court operating at the height
of the Cold War as a potential provocation to foreign powers.
“Experience has shown," the Court wrote in striking the
provision, "that international controversies of the gravest
moment, sometimes even leading to war, may arise from real
or imagined wrongs to another's subjects inflicted, or
permitted, by a government.” 389 U.S. at 44] (quoting
Hines v. Davidowitz, 312 U.S. 52, 64, 85 L. Ed. 581, 61 S.
Ct. 399 (1941)). [HN6] Matters related to war are for the
federal government alone to address.
n9 See U.S. Const., art. IJ, § 2, cl. 1 (making
President Commander in Chief); id. cl. 2; (authorizing
President to make treaties with advice and consent of
Senate); id. art. I, § 8, cl. 1 (authorizing Congress to
"provide for the common Defence"); id. cl. 11
(authorizing Congress to declare war); id. cl. 12
(authorizing Congress to raise and support armies); id.
cl. 13 (authorizing Congress to "provide and maintain
51-a
a Navy"); id. cl. 14 (authorizing Congress to regulate
"the land and naval forces").
nl0 See id. § 10 (prohibiting states from entering
"any Treaty, Alliance, or Confederation," or, without
congressional authorization, from "keeping Troops or
Ships of War in time of Peace” and from "engaging in
War, unless actually invaded.")
Among the six district court decisions we review here,
the only one to reach the foreign affairs challenge to section
354.6 held that the provision was unconstitutional under that
doctrine for six reasons:
(1) the terms of section 354.6 and its legislative history
demonstrate a purpose to influence foreign affairs directly,
(2) the statute targets particular countries, (3) the statute does
not regulate an area that Congress has expressly delegated to
states to regulate, (4) the statute establishes a judicial forum
for negative commentary about the Japanese government and
Japanese companies, (5) the Japanese government asserts
that litigation of these claims could complicate and impede
diplomatic relationships of the countries involved, and (6)
the United States, through the State Department, contends
that section 354.6 impermissibly intrudes upon the foreign
affairs power of the federal government.
Forced Labor (Koreans), 164 F. Supp. 2d at 1173. Although
we agree that section 354.6 violates the foreign affairs
power, we base our holding on a narrower consideration. We
hold that [HN7] section 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.
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With section 354.6, California seeks to redress wrongs
committed in the course of the Second World War. By its
terms, only "Second World War slave labor victims" and
"Second World War forced labor victims" can bring suit
under the provision. § 354.6(b). The wrong-doers under the
statute -- the enslaving individuals or entities -- include "the
Nazi regime, its allies and sympathizers, or enterprises
transacting business in any of the areas occupied by or under
control of the Nazi regime or its allies or sympathizers." §
354.6(a)(1), (2). The governmental entities are, by definition,
wartime enemies of the United States, while the "enterprises"
identified in the provision, if not themselves our wartime
enemies, were operating in enemy territory and presumably -
- no party disputes this -- with the consent and for the benefit
of our wartime enemy. Wrongs committed after the end of
the war are not cognizable under section 354.6; the provision
concems only acts that took place during the years leading
up to the war and during the years of the war itself. Jd. In
short, California has sought to create its own resolution to a
major issue arising out of the war -- a remedy for wartime
acts that California's legislature believed had never been
fairly resolved.
The United States has already exercised its own
exclusive authority to resolve the war, including claims
arising out of it. It did not choose, however, to incorporate
into that resolution a private right of action against our
wartime enemies or their nationals. The United States
resolved the war against Germany by becoming a party to a
number of treaties and international agreements, beginning
with the 1945 agreements at Yalta and Potsdam, in which the
United States, Britain, and the Soviet Union agreed to extract
reparations from Germany and its nationals but did not
include a private right of action against either. See Protocol
of the Proceedings, Berlin (Potsdam) Conference, Aug. 2,
1945, art. (B)(111), 3 Bevans 1207. Subsequent agreements
also failed to create a private right of action, including the
Paris Reparations Treaty of 1946 between the United States
53-a
and 17 other nations, Agreement on Reparations From
Germany, Jan. 14, 1946, 61 Stat. 3157, T.L.A.S. 1655 ("Paris
Reparations Treaty"); the Transition Agreement of 1952
between the Western Powers and the Federal Republic of
Germany, Convention Between the United Kingdom of
Great Britain and Northern Ireland, France, the United States
of America and the Federal Republic of Germany on the
Settlement of Matters Ansing Out of the War and the
Occupation, May 26, 1952 (as amended by Schedule IV to
the Protocol on the Termination of the Occupation Regime in
the Federal Republic of Germany, Oct. 23, 1954), 6 U.S.T.
4117, 331 U.N.T.S. 219; the London Debt Agreement of
1953 between the United States and 20 other nations,
Agreement on German External Debts, Feb. 27, 1953, 4
U.S.T. 443, 333 U.N.T.S. 3; and the Two-Plus-Four Treaty,
which reunified Germany and became effective on March
15, 1991, Treaty on the Final Settlement with Respect to
Germany, Sept. 12, 1990, 29 7.L.M. 1186. n11 Most recently,
the Foundation Agreement of July 17, 2000, an executive
agreement between the governments of Germany and the
United States, provided a limited form of remedy for
claimants such as Deutsch. Agreement Between the
Government of the United States of America and the
Government of the Federal Republic of Germany
Concerning the Foundation "Remembrance, Responsibility
and the Future." The Foundation was created by Germany, in
negotiation with the United States, five Central and Eastern
European countries, Israel, and the non-governmental
Conference on Jewish Material Claims Against Germany, for
_ the purpose of making payments to people who suffered at
the hands of German companies during the Nazi Era. It
provides for payment of up to 15,000 German Marks
(roughly $ 7500) to individual claimants who were subjected
to forced labor. See id. at Annex A. We do not have the
authority to consider the adequacy of such payments here.
Indeed, we acknowledge that no possible compensation
54-a
could be sufficient to remedy the harm done to Holocaust
victims and their families.
nll For useful and accessible surveys of these
agreements as they apply to war reparations, see
Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 448-
56 (D.N.J. 1999), and Burger-Fischer v. Degussa AG,
65 F. Supp. 2d 248, 265-73 (D.N.J. I 999). The district
court in Deutsch relied heavily on these cases. and
adopted their conclusion that Deutsch's claim raised a
nonjusticiable political question, Deutsch, No. CV 00-
4405, at 2-6, a conclusion with which we disagree.
The district court determined that the postwar
agreements created the exclusive remedy to the
matters raised by Deutsch; and that to order relief
would therefore require the court to interfere with the
foreign affairs choices of the political branches. Jd.
[HN8] Under political question doctrine, the court
noted, it is impermissible for a court to make policy
related to foreign affairs. Jd. at 2 (citing Baker v. Carr,
369 US. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 69]
(1962)). Therefore, the district court supposed,
Deutsch raised a nonjusticiable political question. The
problem with this argument is that it makes every
dispute over the proper application of a treaty into a
political question, because treaties inherently involve
foreign affairs. [HN9] No political question, however,
is raised by the simple application of the requirements
of a treaty to which the United States is a party.
Treaties have the force of law, see Missouri. v.
Holland, 252 U.S. 416, 64 L. Ed. 641, 40 S. Ct. 382,
18 Ohio L. Rep. 61 (1920), and, if they are self-
executing or have been implemented through _
legislation, must be applied by the courts. See United
States v. Alvarez-Machain, 504 U.S. 655, 667, 119 L.
Ed. 2d 441, 112 S. Ct. 2188 (1992).
55-a
No party argues that any of these agreements provides
the authority for a state of the United States to create a
private night of action enabling individuals to recover for
wartime injuries against German corporations. Deutsch
argues, however, that the terms of these various agreements
do not prohibit a state from creating such a right of action,
and that in the absence of such a prohibition, his action may
proceed. Deutsch's argument cannot carry the day. As we
explained earlier, the Constitution allocates the power over
foreign affairs to the federal government exclusively, and the
power to make and resolve war, including the authority to
resolve war claims, is central to the foreign affairs power in
the constitutional design. In the absence of some specific
action that constitutes authorization on the part of the federal
government, states are prohibited from exercising foreign
affairs powers, including modifying the federal government's
resolution of war-related disputes.
The war with Japan ended with the Treaty of Peace,
signed in San Francisco, on September 8, 1951, by the
representatives of the United States and 47 other Allied
powers and Japan, and ratified by the United States Senate
on April 28, 1952. Treaty of Peace with Japan, Sept. 8, 1951,
3 US.T. 3169, T.LA.S. No. 2490. Although the parties
dispute whether that treaty by its own terms precludes the
claims brought by any of the Appellants, n12 that is the only
dispute regarding the treaty. No party asserts that the treaty
either creates -- explicitly cr implicitly -- a private nght of
action against Japan or its nationals, or authorizes states of
the United States to create such a nght. nl3 Once again,
without such authorization, states lack the power to alter the
federal government's resolution of disputes relating to the
war. nl4
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nl2 The central disagreement concerns the
meaning of Article 14(b) of the treaty, which is quoted
in full supra note 3. The district judge held that
Appellants’ claims were waived because they are
claims of Allied nationals "arising out of actions taken
by [Japanese] nationals in the course of the
prosecution of the war." Jd.; Forced Labor (Allied D),
114 F. Supp. 2d at 944-49. Appellants argue that the
actions of the Appellee corporations were not taken "in
the course of the prosecution of the war," or that it is
an issue of fact whether they were or not. nl13
Appellants do assert that, if Article 14 of the treaty
waives claims against Japanese nationals, as Appellees
assert, then Article 14 is superceded by Article 26.
Article 26 provides, in pertinent part:
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.
Treaty of Peace with Japan, at art. 26. Appellants
argue that other foreign states have entered into
agreements with Japan that do not waive private
claims and that those agreements thereby extend to
those foreign states "greater advantages" than the
terms extended to the United States. The district court
found that Article 26 confers rights only on the
"parties" to the treaties, not on individuals. Forced
Labor (Allied I), 114 F. Supp. 2d at 949. We agree, at
least as to the right to invoke the clause. It is the
prerogative of the United States, not of California or of
Appellants, to determine whether a foreign state has
‘been granted greater advantages and, if so, whether it
is in the interest of the United States to incorporate
those advantages (along with any concomitant lesser
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disadvantages) into the treaty. The United States has
not invoked Article 26 to authorize a private nght of
action. Appellants’ reliance on the article is, therefore,
unavailing. nl4 It is immaterial that many of the
Appellants are nationals of two nations, China and
Korea, that were not signatories of the San Francisco
treaty. When the United States has been a party to a
war, the resolution it establishes to that war is the
resolution for the whole of the United States. States
lack the power to modify that resolution, regardless of
the citizenship of those seeking redress.
The grievances of at least one class of potential plaintiffs
identified in section 354.6, prisoners of war, were addressed
by the federal government in domestic legislation. See §
354.6(a)(2). [HN10] Under the War Claims Act of 1948, 50
U.S.C. app. § § 2001-2017p, assets seized from Germany,
Japan, or their nationals within the United States and its
territory were used to compensate American prisoners of war
whose rights had been violated. See U.S. FOREIGN
CLAIMS SETTLEMENT COMMISSION, SETTLEMENT
OF CLAIMS BY THE FOREIGN CLAIMS SETTLEMENT
COMMISSION FROM SEPTEMBER 14, 1949 TO
MARCH 31, 1955, at 10-11 (1955); 50 US.C. app. §
2005(d)(2)(A). The Act required prisoners of war to submit
their claims to a federal agency, whose decision was final; it
conceived of no private nght of action against German or
Japanese entities. See 50 U.S.C. app. § 2010.
California was dissatisfied with how the federal
government chose to address the various wartime injuries
suffered by victims of the Nazis and their allies after the
United States brought the Second World War to a close. The
California legislature found that, under the treaties and
compensatory programs that the federal government had
established, "victims of Nazi persecution have been deprived
58-a
of their entitlement to compensation for their labor and for
injuries sustained while performing that labor as forced or
Slave laborers prior to and during the Second World War."
1999 Cal. Stat. 216, § 1(b) (codified in notes to Cal. Code
Civ. Proc. § 354.6). The state legislature therefore enacted
section 354.6 to remedy these 54-year-old injuries in a
manner favored by California but not provided for by the
federal government. Appellants assert that no international
agreement or other federal action prohibits California from
doing so. However, as we have stated, because the issue is
the lack of state power, it is immaterial whether the federal
government enacted a prohibition. The federal government,
acting under its foreign affairs authority, provided its own
resolution to the war; California has no power to modify that
resolution. n15
nl5 One might argue that the Holocaust was
distinct from the German war effort, that claims for
injuries arising from the Holocaust do not, therefore,
relate to the war, and that such injuries, because they
are unrelated to the war, do not implicate the war
powers of the federal government. We need not
assume that the acts of enslavement encompassed by
section 354.6 served military purposes or advanced the
war effort of the Nazis or their allies. We simply note
that, by its terms, section 354.6 creates a right of
action only for "Second World War" slave labor
victims. For the purposes of the provision, the
California legislature explicitly defined the harms
suffered by such victims as pertaining to the war.
Moreover, the federal government's exclusive power to
resolve the war necessarily includes an exclusive
power to address the injuries that section 354.6
attempts to remedy. The treaties themselves confirm
that the federal government regarded all wartime
injuries as matters integral to peacemaking, regardless
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of the purpose or effect of the wrong-doer’s acts. In the
Paris Reparations Treaty, for example, the United
States and the other signatories "agreed among
themselves that their shares of reparation, as
determined by the present Agreement, shall be
regarded by each of them as covering all its claims and
those of its -nationals against the former German
Government and its Agencies, of a governmental or
private nature arising out of the war." Paris
Reparations Treaty, Jan. 14, 1946, art. 2(A), 61 Stat.
3157,. 3163; see also, e.g., Treaty of Peace with
Hungary, Feb. 10, 1947, art. 30(4), 61 Stat. 2109, 2126
(bilateral treaty between Allied Powers and Hungary)
("Hungary waives on its own behalf and on behalf of
Hungarian nationals all claims against Germany and
German nationals outstanding on May 8, 1945, except
those arising out of contracts and other obligations
entered into, and nights acquired, before September 1,
1939.").
Before concluding our discussion of this issue, we must
consider Appellants' most vigorous argument in favor of the
constitutionality of section 354.6: that the provision
"presents striking parallels" to HVIRA, the insurance
reporting requirement that we upheld in Gerling. Appellants
correctly note two points of similarity: first, like section
354.6, HVIRA is related to Nazi-era wrongs; second, as
under section 354.6, at least as applied to the cases before us,
the parties regulated by HVIRA are businesses. The
similarity ends there, however. Unlike section 354.6, HVIRA
does not attempt to require the affected businesses to
compensate victims for past wrongs: Specifically, as we
noted in Gerling, HVIRA does not impose obligations on
"European insurance companies to pay or not to pay claims
on European policies." Gerling, 240 F.3d at 745 (internal
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quotation marks removed). HVIRA, rather, is merely a
reporting requirement and the only consequence of non-
compliance is the inability to do business in California in the
future. Jd. Whereas section 354.6 seeks to provide a
monetary remedy for decades-old wartime wrongs, HVIRA
is a forward-looking regulatory statute. n16 In short, unlike
section 354.6, HVIRA does not attempt to hold defendants
liable for their past wartime conduct; it therefore does not
implicate the exclusive power of the federal government to
make and resolve war, including the resolution of claims
arising out of such actions.
nl6 Appellants in Gerling originally challenged
two other statutes that did attempt to force payment of
Nazi-era insurance claims, see Cal. Code Civ. Proc. §
354.5; Cal. Ins. Code § 790.15, but those claims were
dismissed for lack of standing and not addressed on
appeal. Gerling, 240 F.3d at 745; see also Gerling
Global Reinsurance Corp. of Am. v. Low, 296 F.3d
832, 842 & n.7 (9th Cir. 2002), cert. granted sub nom.
Am. Ins. Ass'n v. Low, 71 U.S.L.W. 3373 (2003).
Because California lacks the power to create a right of
action for war-related claims against our former enemies and
those who operated in their territories, and section 354.6 runs
afoul of the restriction on the exercise of foreign affairs
powers by the states, we hold that [HN11] section 354.6 is
unconstitutional.
III. Statutes of Limitations
In addition to section 354.6, Appellants bring various tort
clams under common law, California Statutory and
constitutional law, as well as for violations of international
6l-a
law under the Alien Tort Claims Act, 28 U.S.C. § 1350
("ATCA"). See supra. All these claims are barred by their
respective statutes of limitations.
‘ Appellants apparently bring their common law claims
under California law, although in many instances they do not
identify the jurisdiction under whose law they seek relief.
Some of the parties, including both defendants and plaintiffs,
are California residents, while others are not; the alleged
injuries all took place outside of California. [HN12]
Regardless of the source of the substantive law, because all
the claims, including both common law and statutory, were
brought in California state court or in a district court within
California, we apply to them the statute of limitations that
would be applied in California state court. nl7 [HN13]
California applies the "governmental interest" approach to
conflict of law issues. Hurtado v. Superior Court, 1] Cal.3d
574, 579-80, 114 Cal. Rptr. 106, 522 P.2d 666 (1974).
Under this approach, the correct choice of law depends on
"an analysis of the respective interests of the states
involved." Jd. at 579. Where the conflict concerns a statute
of limitations, the governmental interest approach generally
leads California courts to apply California law. Witkin, 3
CALIFORNIA PROCEDURE § 104 (4th ed. 1996); see,
e.g., Peterson v. Kennedy, 771 F.2d 1244, 1251 n.4 (9th
Cir. 1985); American Bank of Commerce v. Corondoni, 169
Cal. App. 3d 368, 215 Cal. Rptr. 331 (Ca. Ct. App. 1985),
and especially so where California's statute would bar a
claim. California's interest in applying its own law is
strongest when its statute of limitations is shorter than that of
the foreign state, because a "state has a substantial interest in
preventing the prosecution in its courts of claims which it
deems to be 'stale.' Hence, subject to rare exceptions, the
forum will dismiss a claim that is barred by its statute of
limitations." RESTATEMENT (SECOND) OF CONFLICT
OF LAWS § 142, cmt. f (1988).
62-a
nl7 The district court addressing the claims
brought by Korean and Chinese Appellants found that
the non-federal claims would be time-barred under
Chinese and Japanese law, as well as under the law of
California. Forced Labor (Koreans), 164 F. Supp. 2d
at 1182.
All the claims in the cases before us, other than those under
the ATCA, have been stale for several decades under the
applicable California statutes of limitations. See Cal. Code
Civ. Proc. § 340 (one-year statute for personal injury torts,
wrongful death and false imprisonment); id. § 338 (three-
year statute for taking of or injury to personal property, and
for fraud); Cal. Bus. & Prof. Code § 17208 (four-year
statute for claims of unfair business practices). Only an
extraordinarily strong interest of a foreign state in keeping
these claims alive could overcome the presumption that
California will not hear claims that have been stale for so
long under its own law. No such strong foreign interest has
been demonstrated here.
[HN14] The statute of limitations under the ATCA is 10
years. Doe v. Unocal Corp.,___ F.3d __, 2002 US. App.
LEXIS 19263, at *27 (9th Cir. 2002). n18 Appellants have
thus brought these claims far too late as well. n19
n18 The 10-year limit is not stated in the provision.
Rather, we adopted it from the Torture Victim
Protection Act, see Pub.L. No. 102-256, 106 Stat. 73
(1992) (codified at 28 U.S.C. § 1350, statutory notes)
("TVPA"), which has an explicit 10-year statute. Papa
_ v. United States, 281 F.3d 1004, 1011-13 (9th Cir.
2002). We did so because [HN15] where a federal
statute lacks a specified statute of limitations,
63-2 ~
courts apply the limitations period provided by the
jurisdiction in which they sit unless "a rule from
elsewhere in federal law clearly provides a closer
analogy than available state statutes, and when the
federal policies at stake and the practicalities of |
litigation make that rule a significantly more i
appropriate vehicle for interstitial lawmaking."
Papa, 281 F.3d at 1011-12 (citing North Star Steel
Co. v. Thomas, 515 U.S. 29, 35, 132 L. Ed. 2d 27, 115
S. Ct. 1927 (1995)). We held that ATCA was closely
analogous to the TVPA both in its purpose and in its
mechanism for achieving that purpose. Papa, 28]
F.3d at 1012. Appellants ask us to reconsider our
decision in Papa, at least as it applies to the present
cases, and hold that the ATCA is more closely
analogous to section 354.6 than to the TVPA. The
result, Appellants argue, would be that the claims are
not barred until 2010. For the reasons we’ stated in
Papa, and because we hold that section 354.6 is
unconstitutional, we reaffirm that the ATCA statute of
limitations in this case, as in other cases, is 10 years.
nl9 Some Appellants who did not bring a claim
under the ATCA argue that they should be permitted
to amend their complaints to do so. In light of our
holding, such an amendment would be futile.
Some Appellants contend, however, that their claims
under both state law and the ATCA are equitably tolled and
could therefore survive our invalidation of section 354.6.
Although the district court found that they did not allege
facts sufficient to trigger equitable tolling, these Appellants
contend that they were not required to allege such facts,
because a statute of limitations is an affirmative defense,
which a plaintiff is not required to anticipate in the
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complaint. They also contend that even if they were required
to allege such facts, the district court should have granted
them leave to amend in order to give them the opportunity to
do so. The curious aspect of this argument is that all of the
Appellants who make this argument did plead equitable
tolling in their complaints. Furthermore, they alleged facts
that they believed would trigger such tolling. They alleged,
for example, that the defendants had kept the plaintiffs
ignorant of essential facts in the defendants' possession. The
district court considered these alleged facts and found them
insufficient to trigger tolling. Forced Labor (Koreans), 164
F. Supp. 2d at 1181-82. Although the court's discussion of
equitable tolling concerned only the ATCA, its reasoning
applies equally to the state law claims. On appeal, these
Appellants offer neither a satisfactory answer to the district
court's finding regarding equitable tolling nor any hint of any
additional facts that they might allege in an amended
complaint. Under these circumstances, amendment would be
futile. We therefore find no abuse of discretion in the district
court's dismissal of the complaints with prejudice. n20
n20 Deutsch argues for the first time on appeal that
he should be permitted to amend his complaint to
include a claim under the TVPA. He offers no
explanation, however, for why he failed to bring that
claim in his first amended complaint. Moreover, as
noted above, the TVPA has an explicit statute of
limitation of 10 years. Deutsch argues that that period
commenced on the effective date of the Act, rather
than on the date on which the injury was complete. He
cites no authority for this proposition, and we do not
find it to be a reasonable or plausible one. As Deutsch
notes, we have held that the TVPA is applicable to acts
that took place prior to the effective date of the Act.
Alvarez-Machain v. United States, 107 F.3d 696, 702-
03 (9th Cir. 1996). In Alvarez-Machain, however, the
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plaintiff filed his claim only three years after the date
of the alleged injury. Jd. at 700. Nothing in our cases
or the statute suggests that Congress intended the
TVPA to open the federal courts to claims that were
already more than 40 years old when the statute
became effective or that no time limit exists under the
TVPA as to the resurrection of claims for damages that
may have occurred in the far distant past. Because the
TVPA has a 10-year statute of limitations, permitting
Deutsch to amend his complaint would be futile. We
therefore affirm the dismissal with prejudice.
IV. Jurisdiction
In many of the cases before us, there is indisputable
federal jurisdiction. In some, for example in Deutsch and in
Dunn vy. Nippon Steel Corp., n21 there is diversity
jurisdiction. 28 U.S.C. § 1332. Appellants in several other
cases, for example in Terrence v. Mitsui & Co., Wheeler v.
Mitsui & Co., and Kim v. Ishikawajima Harima Heavy Indus.
Co., assert claims under international law, thus giving nse to
federal subject matter jurisdiction under 28 U.S.C. § 1331.
n21 In Dunn, the amount in controversy is not
stated in the complaint, nor was the amount
determined by the district court. However, the
Appellant seeks compensation and punitive damages
for roughly three years of withheld wages, as well as
for severe physical and mental injuries he suffered at
the hands of the defendants and their predecessors
during that time. There is thus no doubt that this case
meets the $ 75,000 minimum amount in controversy
required for diversity jurisdiction under 28 U.S.C. §
1332.
66-a
Among the many cases that have been consolidated, there
are some individual cases as to which federal jurisdiction
may be uncertain. Appellants in those cases originally sought
relief in state court, under state law, n22 against non-diverse
defendants. After removal and consolidation, some of the
Appellants sought remand to state court. The district court
denied their motions, Forced Labor (Allied I), 114 F. Supp.
2d at 943, on the ground that "the complaints ..., on their
face, implicate the federal common law of foreign relations."
Id. Appellees opposed remand on other grounds as well.
Appellants in some of these cases -- not precisely the same
group that moved for remand below -- now argue that federal
jurisdiction is lacking.
n22 Although some plaintiffs amended or sought
to amend their complaints, after removal, to include
federal claims, such amendments do not bear on the
evaluation of removal jurisdiction. Abada v. Charles
Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002).
Normally, of course, we would address all jurisdictional
issues as an initial matter, as they would determine whether
we could proceed to the merits. The situation is different
with respect to the cases consolidated here, because the cases
over which jurisdiction is disputed raise no merits issues that
are not also raised by one or more cases over which
jurisdiction is certain and which have been consolidated with
the disputed cases. In short, we are compelled to address all
of the merits issues in these consolidated cases, regardless of
whether there is jurisdiction over each of them. Furthermore,
the ultimate survival of all of these cases depends on the
validity of the provisions of section 354.6. In light of our
holding that section 354.6 is unconstitutional, remand to
State court of the cases of uncertain federal jurisdiction
would be futile, as the state court would simply dismiss the
. 67-a
RE ee Se eT
claims with prejudice. See Bates v. Jones, 127 F.3d 870,
873 (9th Cir. 1997) (noting that the California Supreme
Court "has yet to disregard a directly applicable decision of
this court on a question of federal law"). Therefore, our
determination of the uncertain jurisdictional issues could
have no effect on the outcome of any of the cases.
For these reasons, we decline to address the uncertain
jurisdictional issues and simply affirm the district court's
dismissal of all the cases before us.
Conclusion
For the foregoing reasons, we hold that [HN16]
California Code of Civil Procedure section 354.6 is an
unconstitutional intrusion on the foreign affairs power of the
United States and that Appellants' remaining claims are
barred by the applicable statutes of limitations. The
judgments of the district courts are
AFFIRMED.
IN RE: WORLD WAR II ERA JAPANESE FORCED
LABOR LITIGATION, This Document Relates To: Alfano
v Mitsubishi Corp, CD Cal No 00-3174; Corre v Mitsui &
Co, CD Cal No 00-999; Eneriz v Mitsui & Co, CD Cal No
00-1455; Heimbuch, et al. v Ishihara Sangyo Kaisha, Ltd,
ND Cal No 00-0064; Hutchison v Mitsubishi Materials Corp,
CD Cal No 00-2796; King v Nippon Steel Corp, ND Cal No
99-5042; Levenberg v Nippon Sharyo, Ltd, ND Cal No 99-
1554; Levenberg v Nippon Sharyo, Ltd, ND Cal No 99-
4737; Poole v Nippon Steel Corp, CD Cal No 00-0189; Price
‘Vv Mitsubishi Corp., CD Cal No 00-5484; Solis v Nippon
Steel Corp., CD Cal No 00-0188; Titherington v Japan
Energy Corp, CD Cal No 00-4383; Wheeler v Mitsui & Co,
Ltd, CD Cal No 00-2057
Master File No MDL-1347, CD Cal No 00-3174, CD Cal No
00-999, CD Cal No 00-1455, ND Cal No 00-0064, CD Cal
No 00-2796, ND Cal No 99-5042, ND Cal No 99-1554, ND
Cal No 99-4737, CD Cal No 00-0189, CD Cal No 00-5484,
CD Cal No 00-0188, CD Cal No 00-4383, CD Cal No 00-
. 2057
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
114 F. Supp. 2d 939; 2000 U.S. Dist. LEXIS 13984
September 21, 2000, Filed
DISPOSITION: Motions to dismiss and/or for judgment on
the pleadings GRANTED.
COUNSEL: WORLD WAR II ERA JAPANESE FORCED
LABOR LITIGATION, In re: William S. Lerach, Frank J.
Janecek, Milberg Weiss Bershad Hynes & Lerach LLP, San
Diego, CA. John J. Bartko, Bartko Zankel Tarrant & Miller,
San Francisco, CA. William I. Edlund, Bartko Zankel
Tarrant & Miller, San Francisco, CA. Albert H. Meyerhoff,
Milberg Weiss Bershad Hynes & Lerach LLP, Los Angeles,
CA. Steve W. Berman, Jeffrey T. Sprung, Hagens Berman,
P.S., Seattle WA. Kevin P. Roddy, Hagens Berman LLP,
Los Angeles, CA. Elizabeth J Arleo, Milberg Weiss Bershad
Hynes & Lerach LLP, San Diego, CA. Patrick W Daniels,
Milberg Weiss Bershad Hynes & Lerach LLP, San Diego,
69-a
EEE ee eS
Ca. Michael Goldstein, Law Offices of Michael Goldstein,
Cardiff, CA.
For JAMES O. KING, Plaintiff: Daniel C. Girard, Anthony
K. Lee, Gordon M. Fauth, Girard & Greene LLP, San
Francisco, CA. Jay W. Eisenhofer, Grant & Eisenhofer, P.A.,
Wilmington, DE.
For WOODROW M. HUTCHISON, Plaintiff: James W.
Parkinson, Palm Desert, CA. Bonnie E Kane, Herman
Middleton Casey & Kitchens LLP, San Diego, CA. David S
Casey, Jr, Wendy M Behan, Herman Middleton Casey &
Kitchens, LLP, San Diego, CA. Joe R Reeder, C Allen
Foster, Greenberg Traurig, Washington, DC. Maury Herman,
Russ M Herman, Leonard A Davis, David K Fox, Herman
Middleton Casey & Kitchens LLP, New Orleans, LA.
Ronald W Kleinman, Greenberg Traurig, Washington, DC.
For RAYMOND WHEELER, Plaintiff: Scott W. Wellman,
Wellman & Warren LLP, Irvine, CA. Robert A. Swift, Kohn
Swift & Graf, Philadelphia, PA. Edward D. Fagan, Fagan &
Associates, New York, NY. Scott R Warren, Wellman &
Warren LLP, Irvine, CA. Denis Sheils, Kohn Swift & Graf,
PC, Philadelphia, PA. Michael Witti, Law Offices, Monchen
(Bogenhausen), Germany. Henry Burstyner, Glennen,
Burstyner & CO, Melbourne, Australia.
For GLORIA TYLER ALFANO, SHANG-TING SUNG,
Plaintiffs: William S. Lerach, Frank J. Janecek, Milberg
Weiss Bershad Hynes & Lerach LLP, San Diego, CA. John
J. Bartko, Bartko Zankel Tarrant & Miller, San Francisco,
CA. William I. Edlund, Bartko Zankel Tarrant & Miller, San
Francisco, CA. Albert H. Meyerhoff, Milberg Weiss Bershad
Hynes & Lerach LLP, Los Angeles, CA. Steve W. Berman,
Jeffrey T. Sprung, Hagens Berman, P.S., Seattle WA. Kevin
P. Roddy, Hagens Berman LLP, Los Angeles, CA. Elizabeth
J Arleo, Milberg Weiss Bershad Hynes & Lerach LLP, San
Diego, CA. Patrick W Daniels, Milberg Weiss Bershad
Hynes & Lerach LLP, San Diego, Ca.
For MANUE]I. A ENERIZ, MELODY SOLIS, HAROLD W
POOLE, ERNEST HAROLD LOY, ROBERT C CLARK,
70-a
FRANCIS W ., CLARENCE S KELLOGG, Plaintiffs:
David S. Casey, Jr., Herman Middleton Casey & Kitchens,
San Diego, CA. James W. Parkinson, Palm Desert, CA.
Bonnie E Kane, Herman Middleton Casey & Kitchens LLP,
San Diego, CA. Wendy M Behan, Herman Middleton Casey
& Kitchens, LLP, San Diego, CA. Joe R Reeder, C Allen
Foster, Greenberg Traurig, Washington, DC. Ronald W
Kleinman, Greenberg Traurig, Washington, DC.
For CLARENCE S KELLOGG, Plaintiff: Sara D Schotland,
Cleary Gottlieb Steen & Hamilton, Washington, DC.
For MITSUI & CO., LTD, MITSUI & CO (USA), INC,
defendants: Christopher B. Hockett, Rebecca M Archer,
David M Balbanian, McCutchen Doyle Brown & Enersen
LLP, San Francisco, CA.
For MITSUI ENGINEERIN & SHIPBUILDING CO., LTD,
PACECO CORP, ISHIHARA CORPORATION (U.S.A.),
ISK AMERICAS INC, defendants: Nathan Lane, III, Joseph
A. Meckes, Squire Sanders & Dempsey LLP, San Francisco,
CA.
For NIPPON STEEL USA INC, NIPPON STEEL CORP.,
NIPPON STEEL TRADING CO LTD, NIPPON STEEL
TRADING AMERICA, defendants: Robert A. Sacks,
Sullivan & Cromwell, Los Angeles, CA.
For MITSUBISHI CORPORATION, MITSUBISHI
INTERNATIONAL CORPORATION, defendants: Ame D.
Wagner, Tamu K. Sudduth, Kathleen V. Fisher, Phyllis A.
Oscar, Morrison & Foerster LLP, San Francisco, CA.
For MITSUBISHI MATERIALS CORPORATION,
MITSUBISHI MATERIALS USA CORPORATION,
defendants: John H. Beisner, Teresa E. Dawson, John F.
Niblock, O'Melveny & Myers, Washington, DC. Benjamin R
Jacewicz, Carrielyn D Guymon, O'Melveny & Myers LLP,
Washington, DC.
For MITSUBISHI HEAVY INDUSTRIES, LTD.,
MITSUBISHI HEAVY INDUSTRIES AMERICA, INC.,
defendants: Nathan M. Spatz, Pillsbury Madison & Sutro
71-a
LLP, Los Angeles, CA. Bruce E.H. Johnson, Davis Wright
Tremaine, Seattle, WA. Martin L. Fineman, Davis Wright
Tremaine, San Francisco, CA. Arthur W. Harngan,
Danielson Harrigan & Tollefson LLP, Seattle, WA. Richard
R Holmquist, Danielson Harrigan & Tollefson LLP, Seattle,
WA. Barbara L Croutch, Michael J Finnegan, Pillsbury
Madison & Sutro LLP, Los Angeles, CA.
For ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES
LTD., IHI,INC, defendants: Linda E. Shostak, Lloyd W.
Aubry, Jr, Kathryn M Davis, Morrison & Foerster LLP, San
Francisco, CA.
For SUMITOMO HEAVY INDUSTRIES _ LTD,
SUMITOMO HEAVY INDUSTRIES’ (USA),INC.,
defendants: Shannon M. Hansen, Kirkland & Ellis, Los
Angeles, CA. Thomas D. Yannucci, James F. Basile,
Christopher Landau, Brant bal Bishop, Kirkland & Ellis,
Washington, DC.
For UNITED STATES OF AMERICA, defendant: Robert S.
Mueller, III, U.S. Attorney's Office, San Francisco, CA.
David J. Anderson, Department of Justice, Civil Division,
Washington, DC. David W. Ogden, US Attorney's Office,
Torts Branch - Civil Division, San Francisco, CA. Vincent
M. Garvey, U.S. Department of Justice, Civil Division,
Washington, DC. Martha Rubio, US Department of Justice,
Civil Division, Washington, DC.
For NIPPON SHARYO LTD., NIPPON SHARYO U:.S.A.,
IN@., defendants: Peter I. Ostroff, Ronald L. Steiner, Sidley
& Austin, Los Angeles, CA. Mark E Haddad, Sidley &
Austin, Los Angeles, CA.
For JAPAN ENERGY CORP, defendant: Douglas E. Mirell,
Loeb & Loeb LLP, Los Angeles, CA. Matthew E. Digby,
Heidi A Leider, Bingham Dana LLP, Los Angeles, CA.
Joseph Geisman, Loeb & Loeb, Los Angeles, CA.
For SHOWA DENKO AMERICA, INC., defendant: Neil
A.F. Popovic, Stephen V. Bomse, Rakesh K. Anand, Heller
Ehrman White & McAuliffe, San Francisco, CA.
72-a
PEOPLE OF THE STATE OF CALIFORNIA, Amicus
Curiae: Richard M. Frank, CA Attorney General's Office,
Oakland, CA. Bill Lockyer, CA Attorney General, Attorney
General of CA, Los Angeles, CA. Catherine Z Ysrael,
Attorney General, Los Angeles, CA. Louis Verdugo, Jr,
Attorney General Office, Los Angeles, Ca.
JUDGES: VAUGHN R WALKER, United States District
Judge.
OPINIONBY: VAUGHN R WALKER
OPINION: ORDER NO 4
On December 23, 1941, after mounting a brave resistance
against an overwhelming foe, the small American garrison
on Wake Island in the South Pacific surrendered to Imperial
Japanese forces. James King, a former United States Marine,
was among the troops and civilians taken prisoner by the
invaders. He was ultimately shipped to Kyushu, Japan,
where he spent the remainder of the war toiling by day as a
slave laborer in a steel factory and enduring maltreatment in
a prison camp by night. When captured, King was 20 years
old, 5 feet 11 inches tall and weighed-167 pounds. At the
conclusion of the war, he weighed 98 pounds.
James King is one of the plaintiffs in these actions against
Japanese corporations for forced labor in World War II; his
experience, and the undisputed injustice he suffered, are
representative. King and the other plaintiffs seek judicial
redress for this injustice. :
I
These actions are before the court for consolidated pretrial
proceedings pursuant to June 5, 2000, and June 15, 2000,
orders of transfer by the Judicial Panel on Multidistrict
Litigation. On August 17, 2000, the court heard oral
argument on plaintiffs’ motions for remand to state court and
defendants' motions to dismiss or for judgment on the
pleadings.
This order addresses, first, all pending motions for remand.
For the reasons stated below, the court concludes that
notwithstanding plaintiffs’ attempts to plead only state law
claims, removal jurisdiction exists because these actions
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raise substantial questions of federal law by implicating the
federal common law of foreign relations.
Second, the court addresses the preclusive effect of the 1951
Treaty of Peace with Japan on a subset of the actions before
the court, namely, those brought by plaintiffs who were
United States or allied soldiers in World War II captured by
Japanese forces and held as prisoners of war. The court
concludes that the 1951 treaty constitutes a waiver of such
claims.
This order does not address the pending motions to dismiss
in cases brought by plaintiffs who were not members of the
armed forces of the United States or its allies. Since these
plaintiffs are not citizens of countries that are signatories of
the 1951 treaty, their claims raise a host of issues not
presented by the Allied POW cases and, therefore, require
further consideration in further proceedings.
II
[HN1]Defendants may remove to federal court "any civil
action brought in a State court of which the district courts of
the United States have orginal jurisdiction." 28 USC §
1441(a). "The propriety of removal thus depends on whether
the case originally could have been filed in federal court."
Chicago v International College of Surgeons, 522 U.S. 156,
163, 139 L. Ed. 2d 525, 118 S. Ct. 523 (1997).
[HN2]Federal courts have original jurisdiction over cases
"arising under the Constitution, laws or treaties of the United
States." 28 USC § 1331. [HN3]For purposes of removal,
federal question jurisdiction exists "only when a federal
question is presented on the face of the plaintiff's properly
pleaded complaini." Caterpillar Inc v_ Williams, 482 U.S.
386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). Since a
defense is not part of a plaintiff's properly pleaded statement
of his claim, a case may not be removed to federal court on
the basis of a federal defense. Rivet v Regions Bank of La,
522 U.S. 470, 475, 139 L. Ed. 2d 912, 118 S. Ct. 921 (1998).
Defendants’ assertion of the Treaty of Peace with Japan as a
defense to plaintiffs’ state law causes of action does not,
therefore, confer federal jurisdiction. Recognizing this,
defendants rely on a line of cases committing to federal
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common law questions implicating the foreign relations of
the United States.
In Banco Nacional de Cuba v Sabbatino, 376 U.S. 398, 425,
11 L. Ed. 2d 804, 84 S. Ct. 923 (1964), a case in which
federal jurisdiction was based on diversity of citizenship,
[HN4]the Supreme Court held that development and
application of the act of state doctrine was a matter of federal
common law, notwithstanding the general rule of Ene R Co
v Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817
(1938), that federal courts apply state substantive law in
diversity cases. The court reasoned that because the doctrine
concerned matters of comity between nations, "the problems
involved are uniquely federal in nature." 376 U.S. at 424.
Ithough the applicable state law mirrored federal decisions,
the Court was "constrained to make it clear that an issue
[involving] our relationships with other members of the
international community must be treated exclusively as an
aspect of federal law.” Id at 425.
Under Banco Nacional, [HN5jfederal common law governs
matters concerning the foreign relations of the United States.
See Texas Indus, Inc v Radcliff Materials, Inc, 451 U.S. 630
641, 68 L. Ed. 2d 500, 101 S. Ct. 2061 (1981). "In these
instances, our federal system does not permit the controversy
to be resolved under state law, either because the authority
and duties of the United States as sovereign are intimately
involved or because the * * * international nature of the
controversy makes it inappropriate for state law to control."
Id.
[HN6]If an examination of the complaint shows that the
plaintiff's claims necessarily require determinations that will
directly and significantly affect United States foreign
relations, a plaintiff's state law claims should be removed.
Republic of Philippines v Marcos, 806 F.2d 344, 352 (2d Cir
1986). This doctrine has been extended to disputes between
private parties that implicate the "vital economic and
sovereign interests" of the nation where the parties’ dispute
arose. Torres v Southern Peru Copper Corp, 113 F.3d 540.
543 n8 (Sth Cir 1997).
The court concludes that the complaints in the instant cases,
on their face, implicate the federal common law of foreign
relations and, as such, give rise to federal jurisdiction.
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Plaintiffs' claims arise out of world war and are enmeshed
with the momentous policy choices that arose in the war's
aftermath. The cases implicate the uniquely federal interests
of the United States to make peace and enter treaties with
foreign nations. As the United States has argued as amicus
curiae, these cases carry potential to unsettle half a century
of diplomacy.
After a thorough analysis, Judge Baird in the Central District
of California denied remanc in one of the cases now before
the undersigned pursuant to the multidistrict litigation
transfer order. Poole v Nippon Steel Corp, No 00-0189 (CD
Cal March 17, 2000). The court agrees with the analysis and
the conclusion in that case.' J udge Baird held: "This case, on
its face, presents substantial issues of federal common law
dealing with foreign policy and relations. * * * As such,
plaintiffs may not evade this Court's jurisdiction by cloaking
their complaints in terms of state law." The motions for
remand are DENIED.
[il
In addressing the motions to dismiss, the court refers again to
a complaint that is representative of the actions by United
States and Allied POWs, King v Nippon Steel Corp., No 99-
5042.
As noted at the outset of this order, plaintiff King seeks
redress for wrongs inflicted by his captors half a century ago.
In count one of the complaint, he asserts a claim under
[HN7]California Code of Civil Procedure § 354.6, a new law
that permits an action by a "prisoner-of-war of the Nazi
regime, its allies or sympathizers" to "recover compensation
for labor performed as a Second World War slave labor
victim * * * from any entity or successor in interest thereof,
for whom that labor was performed * * * ." Cal Code Civ
" In another related case in which remand was granted, Jeong
Onoda Cement Co, Ltd, 2000 U.S. Dist. LEXIS 7985 (CD
Cal May 18, 2000) the court did not consider the federal
common law of foreign relation as a basis for federal
jurisdiction.
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Pro § 354.6. Count two is an unjust enrichment claim in
which plaintiff seeks disgorgement and restitution of
economic benefits derived from his labor. In count three,
plaintiff seeks damages in tort for battery, intentional
infliction of emotional distress and unlawful imprisonment.
Count four alleges that defendant's failure to reveal its prior
exploitation of prisoner labor to present-day customers in
California and elsewhere constitutes an unfair business
practice under California Business and Professions Code §
17204.
Defendants move pursuant to Federal Rule of Civil
Procedure 12(c) for a judgment on the pleadings, arguing:
(1) plaintiff's claims are barred by the Treaty of Peace with
Japan; (2) plaintiffs claims raise nonjusticiable political
questions; (3) the peace treaty, the War Claims Act of 1948
and the federal government's plenary authority over foreign
affairs combine to preempt plaintiff's claims and (4) because
the complaint alleges injuries caused by the Japanese
government, plaintiff's claims are barred by the act of state
doctrine and the Foreign Sovereign Immunities Act.
These arguments, and’ King's countervailing positions, arise
in all of the cases before the court brought on behalf of
Allied POWs against Japanese corporations. The court need
not address all of them. For the reasons stated below, the
court concludes that plaintiffs' claims are barred by the
Treaty of Peace with Japan.
A
[HN8]A motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) is the proper means to
challenge the sufficiency of the complaint after an answer
has been filed. Depending on the procedural posture of the
individual case, some defendants have filed motions
pursuant to FRCP 12(c) and others have filed motions to
dismiss pursuant to FRCP 12(b). The distinction in the
present context is not important. [HN9]In the Ninth Circuit,
the standard by which the district court must determine Rule
12(c) motions is the same as the standard for the more
familiar motion to dismiss under Rule 12(b)(6): "A district
court will render a judgment on the pleadings when the
moving party clearly establishes on the face of the pleadings
[and by evidence of which the court takes judicial notice]
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that no material issue of fact remains to be resolved and that
it is entitled to judgment as a matter of law." Enron Oil
Trading & Transp Co v Walbrook Ins Co, 132 F.3d 526, 529
(9th Cir 1997) (citations omitted).
B
[HN10]The Treaty of Peace with Japan was signed at San
Francisco on September 8, 1951, by the representatives of
the United States and 47 other Allied powers and Japan.
Treaty of Peace with Japan, [1952] 3 UST 3169, TIAS No
2490 (1951). President Truman, with the advice and consent
of the Senate, ratified the treaty and it became effective April
28, 1952. Id.
Article 14 provides the terms of Japanese payment "for the
damage and suffering caused by it during the war." Id at Art
14(a). For present purposes, the salient features of the
agreement are: (1) a grant of authority of Allied powers to
seize Japanese property within their jurisdiction at the time
of the treaty’s effective date; (2) an obligation of Japan to
assist in the rebuilding of territory occupied by Japanese
forces during the war and (3) waiver of all "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 * * * ." Id at Art 14(a)-(b) (emphasis
added).
It is the waiver provision that defendants argue bars
plaintiffs’ present claims. In its entirety, the provision reads:
({HN11]b) 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 if the Allied Powers for direct
military costs of occupation.
Id at Art 14(b).
f[HN12]On its face, the treaty waives "all" reparations and
"other claims" of the "nationals" of Allied powers "arising
out of any actions taken by Japan and its nationals during the
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course of the prosecution of the war." The language of this
waiver is strikingly broad, and contains no conditional
language or limitations, save for the opening clause referring
to the provisions of the treaty. [HN13]The interests of Allied
prisoners of war are addressed in Article 16, which provides
for transfer of Japanese assets in neutral or enemy
jurisdictions to the International Committee of the Red Cross
for distribution to former prisoners and their families. Id at
Art 16. The treaty specifically exempts from reparations,
furthermore, those Japanese assets resulting from "the
resumption of trade and financial relations subsequent to
September 2, 1945." Id at Art 14(a)(2)(ID(iv).
To avoid the preclusive effect of the treaty, plaintiffs
advance an interpretation of Article 14(b) that is strained
and, ultimately, unconvincing. Although the argument has
several shades, it comes down to this: the signatories of the
treaty did not understand the Allied waiver to apply to
prisoner of war claims because the provision did not
expressly identify such claims, in contrast to the
corresponding Japanese waiver provision of Article 19.
Article 19(b) states that the Japanese waiver includes "any
claims and debts arising in respect to Japanese prisoners of
war and civilian internees in the hands of the Allied Powers
xx *x " P
That the treaty is more specific in Article 19 does not change
the plain meaning of the language of Article 14. If the
language of Article 14 were ambiguous, plaintiffs’ expressio
unius argument would have more force. But plaintiffs cannot
identify any ambiguity in the language of Article 14. To do
so would be to inject hidden meaning into straightforward
text.
[HN14]The treaty by its terms adopts a comprehensive and
exclusive settlement plan for war-related economic injuries
which, in its wholesale waiver of prospective claims, is not
unique. See, for example, Neri v United States, 204 F.2d 867
(2d Cir 1953) (claim barred by broad waiver provision in
Treaty of Peace with Italy). The waiver provision of Article
14(b) is plainly broad enough to encompass the plaintiffs’
claims in the present litigation.
C
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[HN15]The court does not find the treaty language
ambiguous, and therefore its analysis need go no further.
Chan v Korean Airlines, 490 U.S. 122, 134, 104 L. Ed. 2d
113, 109 S. Ct. 1676 (1989) (if text of treaty is clear, courts
"have no power to insert an amendment."). To the extent that
Articles 19(b) raises any uncertainty, however, the court
"may look beyond the written words to the history of the
treaty, the negotiations, and the practical construction
adopted by the parties." Air France v Saks, 470 U.S. 392,
396, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985). These
authorities are voluminous and therefore of doubtful utility
due to the potential for misleading selective citation. Counsel
for both sides have proved themselves skilled in scouring
these documents for support of their positions, and that both
sides have succeeded to a certain degree underscores the
questionable value of such resort to drafting history.
Nevertheless, the court has conducted its own review of the
historical materials, anid concludes that they reinforce the
conclusion that the Treaty of Peace with Japan was intended
to bar claims such as those advanced by plaintiffs in this
litigation.
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a
lasting peace:
Reparation is usually the most controversial aspect
of peacemaking. The present peace is no
exception.
On the one hand, there are claims both vast and
just. Japan's aggression caused tremendous cost,
losses and suffering. * * *
On the other hand, to meet these claims, there
stands a Japan presently reduced to four home
islands which are unable to produce the food its
people need to live, or the raw materials they need
to work. * * *
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Under these circumstances, if the treaty validated,
or kept contingently alive, monetary reparations
claims against Japan, her ordinary commercial
- credit would vanish, the incentive of her people
would be destroyed and they would sink into a
misery of body and spirit that would make them
easy prey to exploitation. * * *
There would be bitter competition [among the
Allies] for the largest possible percentage of an
illusory pot of gold.
See US Dept of State, Record of Proceedings of the
Conference for the Conclusion and Signature of the Treaty of
Peace with Japan 82-83 (1951) (Def Req for Judicial Notice,
Exh J). :
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of
the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. See SCAP,
Reparations: Development of Policy and Directives (1947).
It soon became clear that Japan's financial condition would
render any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of
1948, MacArthur expressed the view that "the use of
reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all
possible means" and "recommended that the reparations
issue be settled finally and without delay." Memorandum
from General Headquarters of SCAP to Department of the
Army (Dec. 14, 1948) at P 8 (Def Req for Judicial Notice,
Exh E).
That this policy was embodied in the treaty is clear not only
from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval
of the treaty by the Senate. The committee noted, for
example:
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Obviously insistence upon the payment of
reparations in any proportion commensurate with
the claims of the injured countries and their
nationals would wreck Japan's economy, dissipate
any credit that it may possess at present, destroy
the initiative of its people, and create misery and
chaos in which the seeds of discontent and
communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of * * *
the United States * * *.
Japanese Peace Treaty and Other Treaties Relating to
Security in the Pacific, S Rep No 82-2, 82d Cong, 2d Sess 12
(1952) (Def Req for Judicial Notice, Exh F). The committee
recognized that the treaty provisions "do not give a direct
right of return to individual claimants except in the case of
those having property in Japan," id at 13, and endorsed the
position of the State Department that "United States
nationals, whose claims are not covered by the treaty
provisions * * * must look for relief to the Congress of the
United States,” id at 14.
Indeed, the treaty went into effect against the backdrop of
congressional response to the need for compensation for
former prisoners of war, in which many, if not all, of the
_ plaintiffs in the present cases participated. See War Claims
Act of 1948, 50 USC §§ 2001-2017p (establishing War
Claims Commission and assigning top priority to claims of
former prisoners of war).
Were the text of the treaty to leave any doubt that it waived
claims such as those advanced by plaintiffs in these cases,
the history of the Allied experience in post-war Japan, the
drafting history of the treaty and the ratification debate
would resolve it in favor of a finding of waiver.
D
As one might expect, considering the acknowledged
inadequacy of compensation for victims of the Japanese
regime provided under the treaty, the issue of additional
reparations has arisen repeatedly since the adoption of that
agreement some 50 years ago. This is all the more
82-a .
understandable in light of the vigor with which the Japanese
economy has rebounded from the abyss.
The court finds it significant, as further support for the
conclusion that the treaty bars plaintiffs’ claims, that the
United States, through State Department officials, has stood
firmly by the principle of finality embodied in the treaty.
This position was expressed in recent congressional
testimony by Ronald J Bettauer, deputy legal advisor, as
follows:
The 1951 Treaty of Peace with Japan settles all
war-related claims of the U.S. and its nationals,
and precludes the possibility of taking legal action
in United States domestic courts to obtain
additional compensation for war victims from
Japan or its nationals--including Japanese
commercial enterprises.
POW Survivors of the Bataan Death March, Hearing before
the Senate Committee on the Judiciary (June 28, 2000)
(statement of Ronald J Bettauer, United States Department of
State) (Def Req for Judicial Notice, Exh P).
In another recent example, in response to a letter from
Senator Orrin Hatch expressing "disappointment" with the
"fifty-five year old injustice imposed on our military forces
held as prisoners of war in Japan" and urging the Secretary
of State to take action, a State Department representative
wrote:
The Treaty of Peace with Japan has, over the past
five decades, served to sustain U.S. security
interests in Asia and to support peace and stability
in the region. We strongly believe that the U.S.
must honor its international agreements, including
the [treaty]. There is, in our view, no justification
for the U.S. to attempt to reopen the question of
international commitments and obligations under
the 1951 Treaty in order now to seek a more
favorable settlement of the issue of Japanese
compensation.
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This explanation obviously offers no consolation
to the victims of Japanese wartime aggression.
Regrettably, however, it was impossible when the
Treaty was negotiated--and it remains impossible -
today, 50 years later--to compensate fully for the
suffering visited upon the victims of the war * * * .
Letter of Jan 18, 2000, from US Dept of State to Tre Hon
Orrin Hatch at 2.
[HN16]The conclusion that the 1951 treaty constitutes a
waiver of the instant claims, as stated above and argued in
the brief of the United States as amicus curiae in this case,
carries significant weight. See Kolovrat v Oregon, 366 U.S.
187, 194, 6 L. Ed. 2d 218, 81 S. Ct. 922 (1961) ("While
courts interpret treaties for themselves, the meaning given
them by the departments of government particularly charged
with their negotiation and enforcement is given great
weight."); Sullivan v Kidd, 254 U.S. 433, 442, 41 S. Ct. 158,
65 L. Ed. 344 (1921) ("The construction placed upon the
treaty before us and consistently adhered to by the Executive
Department of the Government, charged with the supervision
of our foreign relations, should be given much weight."). The
government's position also comports entirely with the court's
own analysis of the treaty and its history.
Plaintiffs raise several additional arguments that bear only
brief mention. First is the characterization of these claims as
not arising out of the "prosecution of the war," as that phrase
is used in the treaty. Plaintiffs attempt to cast their claims as
involving controversies between private parties.
It is particularly far-fetched to attempt to distinguish between
the conduct of Imperial Japan during the Second World War
and the major industry that was the engine of its war
machine. The lack of any sustainable distinction 1s apparent
from the complaints in these cases. For example, the King
complaint alleges that a class of war prisoners were forced to
work "in support of the Japanese war effort," Compl P 56,
and pursuant to a directive from the Japanese government
that the "labor and technical skill" of prisoners of war "be
fully utilized for the replenishment of production, and
contribution rendered toward the prosecution of the Greater
East Asiatic War," id at P 30. Furthermore, the complaint
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asserts that plaintiff worked in a factory "where motor
armatures were manufactured for the war effort." Id at P 35.
These allegations quite clearly bring this action within the
scope of the treaty's waiver of all claims "arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war." Treaty at Art 14(b).
Plaintiffs also argue that waiver of plaintiffs’ claims renders
the treaty unconstitutional and invalid under international
law. This position is contrary to the well-settled principle
that the government may lawfully exercise its "sovereign
authority to settle the claims of its nationals against foreign
countries." Dames & Moore v Regan, 453 U.S. 654, 679-80.
69 L. Ed. 2d 918, 101 S. Ct. 2972 (1981): see also Neri, 204
F.2d _at 868-69 (enforcing treaty waiver of reparations
claims).
Finally, plaintiffs assert that subsequent settlements between
Japan and other treaty signatories on more favorable terms
than those set forth in the treaty should "revive" plaintiff's
claims under Article 26, which provides in relevant part:
[HN17]
Should Japan make a * * * war claims settlement
with any State granting that State greater
advantages than those provided by the present
Treaty, those same advantages shall be extended to
the parties to the present Treaty.
Treaty at Art 26. [HN18]Without deciding whether the
evidence plaintiff cites of other agreements implicates
Article 26, the court finds that that provision confers rights
only upon the "parties to the present treaty," i.e., the
government signatories. The question of enforcing Article 26
is thus for the United States, not the plaintiffs, to decide.
IV
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And
while full compensation for plaintiffs' hardships, in the
purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their
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posterity in a free society and in a more peaceful world
services the debt.
The motions to dismiss and/or for judgment on the pleadings
are GRANTED. The clerk shall enter judgment in favor of
defendants in the above-captioned cases.
IT IS SO ORDERED.
VAUGHN R WALKER
United States District Judge
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MULTILATERAL
TREATY OF PEACE WITH
JAPAN
TIAS 2490
3 U.S.T. 3169; 1951 U.S.T.
LEXIS 516
September 8, 1951, Date-Signed
April 28, 1952, Date-In-Force
STATUS:
Signed at San Francisco September 8, 1951; ratification
advised by the Senate of the United States of America March
20, 1952, with a declaration; ratified by the President of the
United States of America April 15, 1952, subject to
declaration; ratification of the United States of America
deposited at Washington April 28, 1952; proclaimed by the
President of the United States of America April 28, 1952;
entered into force April 28, 1952. With declarations by Japan
signed at San Francisco September 8, 1951. And exchange of
notes signed at San Francisco September 8, 1951.
TREATY OF PEACE WITH JAPAN
TEXT:
BY THE PRESIDENT OF THE UNITED STATES OF
AMERICA ;
A PROCLAMATION
WHEREAS the Treaty of Peace with Japan was signed at
San Francisco on September 8, 1951 by the respective
87-a
Plenipotentiaries of the United States of America and 47
other Allied Powers, and Japan;
WHEREAS the text of the said Treaty, in the English,
French, Spanish, and Japanese languages, is word for word
as follows:
Whereas the Allied Powers and Japan are resolved that
henceforth their relations shall be those of nations which, as
sovereign equals, cooperate in friendly association to
promote their common welfare and to maintain international
peace and security, and are therefore desirous of concluding
a Treaty of Peace which will settle questions still outstanding
as a result of the existence of a state of war between them;
Whereas Japan for its part declares its intention to apply
for membership in the United Nations and in all
circumstances to conform to the principles of the Charter of
the United Nations; to strive to realize the objectives of the
Universal Declaration of Human Rights;’ to seek to create
within Japan conditions of stability and well-being as
defined in Articles 55 and 56 of the Charter of the United
Nations and already initiated by post-surrender Japanese
legislation; and in public and pzivate trade and commerce to
conform to internationally accepted fair practices;
Whereas the Allied Powers welcome the intentions of
Japan set out in the foregoing paragraph;
The Allied Powers and Japan have therefore determined
to conclude the present Treaty of Peace, and have
accordingly appointed the undersigned Plenipotentiaries,
who, after presentation of their full powers, found in good
and due form, have agreed on the following provisions:
’ Senate doc. 123, 81st Cong., Ist sess., p. 1156.
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CHAPTER I
PEACE
Article 1
(a) The state of war between Japan and each of the Allied
Powers is terminated as from the date on which the present
Treaty comes into force between Japan and the Allied Power
concemed as provided for in Article 23.
(b) The Allied Powers recognize the full sovereignty of
the Japanese people over Japan and its territorial waters.
CHAPTER II
TERRITORY
Article 2
(a) Japan, recognizing the independence of Korea,
renounces all right, title and claim to Korea, including the
islands of Quelpart, Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa
and the Pescadores.
(c) Japan renounces all right, title and claim to the Kurle
Islands, and to that portion of Sakhalin and the islands
adjacent to it over which Japan acquired sovereignty as a
consequence of the Treaty of Portsmouth of September 5,
1905.
(d) Japan renounces all right, title and claim in
connection with the League of Nations Mandate System, and
accepts the action of the United Nations Security Council of
April 2, 1947, extending the trusteeship system to the Pacific
Islands formerly under mandate to Japan.
(e) Japan renounces all claim to any nght or title to or
interest in connection with any part of the Antarctic area,
whether deriving from the activities of Japanese nationals or
otherwise.
89-a
(f) Japan renounces all right, title and claim to the Spratly
Islands and to the Paracel Islands.
Article 3
Japan will concur in any proposal of the United States to
the United Nations to place under its trusteeship system, with
the United States as the sole administering authority, Nansei
Shoto south of 29 [degrees] north latitude (including the
Ryukyu Islands and the Daito Islands), Nanpo Shoto south of
Sofu Gan (including the Bonin Islands, Rosario Island-and
the Volcano Islands) and Parece Vela and Marcus Island.
Pending the making of such a proposal and affirmative
action thereon, the United States will have the nght to
exercise all and any powers of administration, legislation and
jurisdiction over the territory and inhabitants of these islands,
including their territorial waters.
Article 4
(a) Subject to the provisions of paragraph (b) of this
Article, the disposition of property of Japan and of its
nationals in the areas referred to in Article 2, and their
claims, including debts, against the authorities presently
administering such areas and the residents (including
jurisdical persons) thereof, and the disposition in Japan of
property of such authorities and residents, and of claims,
including debts, of such authorities and residents against
Japan and its nationals, shall be the subject of special
arrangements between Japan and such authorities. The
property of any of the Allied Powers or its nationals in the
areas referred to in Article 2 shall, insofar as this has not
already been done, be returned by the administering
authority in the condition in which it now exists. (The term
nationals whenever used in the present Treaty includes
juridical persons.)
(b) Japan recognizes the validity of dispositions of
property of Japan and Japanese nationals made by or
pursuant to directives of the United States Méilitary
90-a
Government in any of the areas referred to in Articles 2 and
3.
(c) Japanese owned submarine cables connecting Japan
with territory removed from Japanese control pursuant to the
present Treaty shall be equally divided, Japan retaining the
Japanese terminal and adjoining half of the cable, and the
detached territory the remainder of the cable and connecting
terminal facilities.
CHAPTER III
SECURITY
Article 5
(a) Japan accepts the obligations set forth in Article 2 of
the Charter of the United Nations, and in particular the
obligations
(i) to settle its international disputes by peaceful means in
such a manner that international peace and security, and
justice, are not endangered;
(ii) to refrain in its international relations from the threat
or use of force against the territorial integrity or political
independence of any State or in any other manner
inconsistent with the Purposes of the United Nations;
(iii) to give the United Nations every assistance in any
action it takes in accordance with the Charter and to refrain
from giving assistance to any State against which the United
Nations may take preventive or enforcement action.
(b) The Allied Powers confirm that they will be guided
by the principles of Article 2 of the Charter of the United
Nations in their relations with Japan.
(c) The Allied Powers for their part recognize that Japan
as a sovereign nation possesses the inherent night of
individual or collective self-defense referred to in Article 51
of the Charter of the United Nations and that Japan may
voluntarily enter into collective security arrangements.
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Article 6
(a) All occupation forces of the Allied Powers shall be
withdrawn from Japan as soon as possible after the coming
into force of the present Treaty, and in any case not later than
90 days thereafter. Nothing in this provision shall, however,
prevent the stationing or retention of foreign armed forces in
Japanese territory under or in consequence of any bilateral or
multilateral agreements which have been or may be made
between one or more of the Allied Powers, on the one hand,
and Japan on the other.
(b) The provisions of Article 9 of the Potsdam
Proclamation of July 26, 1945,’ dealing with the return of
Japanese military forces to their homes, to the -extent not
already completed, will be carried out.
(c) All Japanese property for which compensation has
not already been paid, which was supplied for the use of the
occupation forces and which remains in the possession of
those forces at the time of the coming into force of the
present Treaty, shall be returned to the Japanese Government
within the same 90 days unless other arrangements are made
by mutual agreement.
CHAPTER IV
POLITICAL AND ECONOMIC CLAUSES
Article 7
(a) Each of the Allied Powers, within one year after the
present Treaty has come into force between it and Japan, will
notify Japan which of its prewar bilateral treaties or
conventions with Japan it wishes to continue in force or
revive, and any treaties or conventions so notified shall
continue in force or be revived subject only to such
" Senate doc. 123, 81st Cong., 1st sess., p. 49.
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amendments as may be necessary to ensure conformity with
the present Treaty. The treaties and conventions so notified
shall be considered as having been continued in force or
revived three months after the date of notification and shall
be registered with the Secretariat of the United Nations. All
such treaties and conventions as to which Japan is not so
notified shall be regarded as abrogated.
(b) Any notification made under paragraph (a) of this
Article may except from the operation or revival of a treaty
or convention any territory for the international relations of
which the notifying Power is responsible, until three months
after the date on which notice is given to Japan that such
exception shall cease to apply.
Article 8
(a) Japan will recognize the full force of all treaties now
or hereafter concluded by the Allied Powers for terminating
the state of war initiated on September 1, 1939, as well as
any other arrangements by the Allied Powers for or in
connection with the restoration of peace. Japan also accepts
the arrangements made for terminating the former League of
Nations and Permanent Court of International Justice.
(b) Japan renounces all such rights and interests as it may
derive from being a signatory power of the Conventions of
St. Germain-en-Laye of September 10, 1919, and the Straits
Agreement of Montreux of July 20, 1936, and from Article
16 of the Treaty of Peace with Turkey signed at Lausanne on
July 24, 1923.
(c) Japan renounces all rights, title and interests acquired
under, and is discharged from all obligations resulting from,
the Agreement between Germany and the Creditor Powers of
January 20, 1930, and its Annexes, including the Trust
Agreement, dated May 17, 1930; the Convention of January
20, 1930, respecting the Bank for International Settlements;
and the Statutes of the Bank for International Settlements.
Japan will notify to the Ministry of Foreign Affairs in Paris
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within six months of the first coming into force of. the
present Treaty its renunciation of the nghts, title and
interests referred to in this paragraph.
Article 9
Japan will enter promptly into negotiations with the
Allied Powers so desiring for the conclusion of bilateral and
multilateral agreements providing for the regulation or
limitation of fishing and the conservation and development
of fisheries on the high seas.
Article 10
Japan renounces all special rights and interests in China,
including all benefits and privileges resulting from the
provisions of the final Protocol signed at Peking on
September 7, 1901,’ and all annexes, notes and documents
supplementary thereto, and agrees to the abrogation in
respect to Japan of the said protocol, annexes, notes and
documents.
Article 11
Japan accepts the judgments of the International Military
Tribunal for the Far East and of other Allied War Crimes
Courts both within and outside Japan, and will carry out the
sentences imposed thereby upon Japanese nationals
imprisoned in Japan. The power to grant clemency, to reduce
sentences and to parole with respect to such prisoners may
not be exercised except on the decision of the Government or
Governments which imposed the sentence in each instance,
and on the recommendation of Japan. In the case of persons
sentenced by the International Military Tribunal for the Far
East, such power may not be exercised except on the
decision of a majority of the Governments represented on the
Tribunal, and on the recommendation of Japan.
1 Treaty Series 397.
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Article 12
(a) Japan declares its readiness promptly to enter into
negotiations for the conclusion with each of the Allied
Powers of treaties or agreements to place their trading,
maritime and other commercial relations on a stable and
friendly basis.
(b) Pending the conclusion of the relevant treaty or
agreement, Japan will, during a period of four years from the
first coming into force of the present Treaty
(1) accord to each of the Allied Powers, its nationals,
products and vessels
(i) most-favored-nation treatment with respect to customs
duties, charges, restrictions and other regulations on or in
connection with the importation and exportation of goods;
(ii) national treatment with respect to shipping, navigation
and imported goods, and with respect to natural and juridical
persons and their interests - such treatment to include all
matters pertaining to the levying and collection of taxes,
access to the courts, the making and performance of
contracts, rights to property (tangible and intangible),
participation in juridical entities constituted under Japanese
law, and generally the conduct of all kinds of business and
professional activities;
(2) ensure that external purchases and sales of Japanese state
trading enterprises shall be based solely on commercial
considerations.
(c) In respect to any matter, however, Japan shall be
obliged to accord to an Allied Power national treatment, or
most-favored-nation treatment, only to the extent that the
‘Allied Power concerned accords Japan national treatment or
most-favored-nation treatment, as the case may be, in respect
of the same matter. The reciprocity envisaged in the
foregoing sentence shall be determined, in the case of
products, vessels and juridical entities of, and persons
domiciled in, any non-metropolitan territory of an Allied
Power, and in the case of juridical entities of, and persons
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domiciled in, any state or province of an Allied Power
having a federal government, by reference to the treatment
accorded to Japan in such territory, state or province.
(d) In the application of this Article, a discriminatory
measure shall not be considered to derogate from the grant of
national or most-favored-nation treatment, as the case may
be, if such measure is based on an exception customarily
provided for in the commercial treaties of the party applying
it, or on the need to safeguard that party's external financial
position or balance of payments (except in respect to
shipping and navigation), or on the need to maintain its
essential security interests, and provided such measure is
proportionate to the circumstances and not applied in an
arbitrary or unreasonable manner.
(e) Japan's obligations under this Article shall not be
affected by the exercise of any Allied rights under Article 14
of the present Treaty; nor shall the provisions of this Article
be understood as limiting the undertakings assumed by Japan
by virtue of Article 15 of the Treaty.
Article 13
(a) Japan will enter into negotiations with any of the
Allied Powers, promptly upon the request of such Power or
Powers, for the conclusion of bilateral or muitilateral
agreements relating to international civil air transport.
(b) Pending the conclusion of such agreement or
agreements, Japan will, during a period of four years from
the first coming into force of the present Treaty, extend to
such Power treatment not less favorable with respect to air-
traffic nghts and privileges than those exercised by any such
Powers at the date of such coming into force, and will accord
complete equality of opportunity in respect to the operation
and development of air services.
(c) Pending its becoming a party to the Convention on
International Civil Aviation in accordance with Article 93
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thereof, Japan will give effect to the provisions of that
Convention applicable to the international navigation of
aircraft, and will give effect to the standards, practices and
procedures adopted as annexes to the Convention in
accordance with the terms of the Convention.
CHAPTER V
CLAIMS AND PROPERTY
Article 14
(a) It is recognized that Japan should pay reparations to
the Allied Powers for the damage and suffering caused by it
during the war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for
all such damage and suffering and at the same time meet its
other obligations.
Therefore,
1. Japan will promptly enter into negotiations with Allied
Powers so desiring, whose present territories were occupied
by Japanese forces and damaged by Japan, with a view to
assisting to compensate those countries for the cost of
repairing the damage done, by making available the services
of the Japanese people in production, salvaging and other
work for the Allied Powers in question. Such arrangements
shall avoid the imposition of additional liabilities on other
Allied Powers, and, where the manufacturing of raw
materials is called for, they shall be supplied by the Allied
Powers in question, so as not to throw any foreign exchange
burden upon Japan.
2. (I) Subject to the provisions of sub-paragraph (II)
below, each of the Allied Powers shall have the night to
seize, retain, liquidate or otherwise dispose of all property,
rights and interests of |
(a) Japan and Japanese nationals,
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(b) persons acting for or on behalf of Japan or Japanese
nationals, and
(c) entities owned or controlled by Japan or Japanese
nationals, which on the first coming into force of the present
Treaty were subject to its jurisdiction. The property, nghts
and interests specified in this sub-paragraph shall include
those now blocked, vested or in the possession or under the
control of enemy property authorities of Allied Powers,
which belonged to, or were held or managed on behalf of,
any of the persons or entities mentioned in (a), (b) or (c)
above at the time such assets came under the controls of such
authorities.
(II) The following shall be excepted from the nght
specified in subparagraph (I) above:
(i) property of Japanese natural persons who during the war
resided with the permission of the Government concerned in
the territory of one of the Allied Powers, other than territory
occupied by Japan, except property subjected to restrictions
during the war and not released from such restrictions as of _
the date of the first coming into force of the present Treaty;
(ii) all real property, furniture and fixtures owned by the
Government of Japan and used for diplomatic or consular
purposes, and all personal furniture and furnishings and other
private property not of an investment nature which was
normally necessary for the carrying out of diplomatic and
consular functions, owned by Japanese diplomatic and
consular personnel;
(i11) property belonging to religious bodies or private
charitable institutions and used exclusively for religious or
charitable purposes;
(iv) property, nghts and interests which have come within its
jurisdiction in consequence of the resumption of trade and
financial relations subsequent to September 2, 1945, between
the country concerned and Japan, except such as have
resulted from transactions contrary to the laws of the Allied
Power concerned;
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(v) obligations of Japan or Japanese nationals, any right, title
or interest in tangible property located in Japan, interests in
enterprises organized under the laws of Japan, or any paper
evidence thereof; provided that this exception shall only
apply to obligations of Japan and its nationals expressed in,
Japanese currency.
(III) Property referred to in exceptions (i) through (v)
above shall be returned subject to reasonable expenses for its
preservation and administration. If any such property has
been liquidated the proceeds shall be returned instead.
(IV) The right to seize, retain, liquidate or otherwise
dispose of property as provided in sub-paragraph (I) above
shall be exercised in accordance with the laws of the Allied
Power concerned, and the owner shall have only such rights
as may be given him by those laws.
(V) The Allied Powers agree to deal with Japanese
trademarks and literary and artistic property rights on a basis
as favorable to Japan as circumstances ruling in each country
will permit.
(b) 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.
Article 15
(a) Upon application made within nine months of the
coming into force of the present Treaty between Japan and
the Allied Power concerned, Japan will, within six months of
the date of such application, return the property, tangible and
intangible, and all rights or interests of any kind in Japan of
each Allied Power and its nationals which was within Japan
at any time between December 7, 1941, and September 2,
1945, unless the owner has freely disposed thereof without
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duress or fraud. Such property shall be returned free of all
encumbrances and charges to which it may have become
subject because of the war, and without any charges for its
return. Property whose return is not applied for by or on
behalf of the owner or by his Government within the
prescribed period may be disposed of by the Japanese
Government as it may determine. In cases where such
property was within Japan on December 7, 1941, and cannot
be returned or has suffered injury or damage as a result of
the war, compensation will be made on terms not less
favorable than the terms provided in the draft Allied Powers
Property Compensation Law approved by the Japanese
Cabinet on July 13, 1951.
(b) With respect to industrial property nights impaired
during the war, Japan will continue to accord to the Allied
Powers and their nationals benefits no less than those
heretofore accorded by Cabinet Orders No. 309 effective
September 1, 1949, No. 12 effective January 28, 1950, and
No. 9 effective February 1, 1950, all as now amended,
provided such nationals have applied for such benefits within
the time limits prescribed therein.
(c)(i) Japan acknowledges that the literary and artistic
property rights which existed in Japan on December 6, 1941,
in réspect to the published and unpublished works of the
Allied Powers and their nationals have continued in force
since that date, and recognizes those nghts which have
arisen, or but for the war would have arisen, in Japan since
that date, by the operation of any conventions and
agreements to which Japan was a party on that date,
irrespective of whether or not such conventions or
agreements were abrogated or suspended upon or since the
outbreak of war by the domestic law of Japan or of the
Allied Power concerned.
(ii) Without the need for application by the proprietor of
the right and without the payment of any fee or compliance
with any other formality, the period from December 7, 1941,
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until the coming into force of the present Treaty between
Japan and the Allied Power concerned shall be excluded
from the running of the normal term of such rights; and such
period, with an additional period of six months, shall be
excluded from the time within which a literary work must be
translated into Japanese in order to obtain translating nights
in Japan.
Article 16
As an expression of its desire to indemnify those
members of the armed forces of the Allied Powers who
suffered undue hardships while prisoners of war of Japan,
Japan will transfer its assets and those of its nationals in
countries which were neutral during the war, or which were
at war with any of the Allied Powers, or, at its option, the
equivalent of such assets, to the International Committee of
the Red Cross which shall liquidate such assets and distribute
the resultant fund to appropriate naticnal agencies, for the
benefit of former prisoners of war and their families on such
basis as it may determine to be equitable. The categories of
assets described in Article 14 (a) 2(I]) (11) through (v) of the
present Treaty shall be excepted from transfer, as well as
assets of Japanese natural persons not residents of Japan on
the first coming into force of the Treaty. It is equally
understood that the transfer provision of this Article has no
application to the 19,770 shares in the Bank for International
Settlements presently owned by Japanese financial
institutions.
Article 17
(a) Upon the request of any of the Allied Powers, the
Japanese Government shall review and revise in conformity.
with international law any decision or order of the Japanese
Prize Courts in cases involving ownership rights of nationals
of that Allied Power and shall supply copies of all
documents comprising the records of these cases, including
the decisions taken and orders issued. In any case in which
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such review or revision shows that restoration is due, the
provisions of Article 15 shall apply to the property
concerned.
(b) The Japanese Government shall take the necessary
measures to enable nationals of any of the Allied Powers at
any time within one year from the coming into force of the
present Treaty between Japan and
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