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.

41-a

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

43-a

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.

52-a

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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

57-a

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

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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

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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

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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.

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(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

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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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