Opposition Brief — Tenney v. Mitsui & Co., Ltd.

Supreme Court US 7

| FILED

yy) VE | AUG - 5 2003

Nos. 02-1776, 02-1784 Bn Aa Ae

IN THE

Supreme Court of the Gnited States

LESTER I. TENNEY, ET AL.,

: “ Petitioners,

v.

MITSUI & Co., LTD., ET AL.,

Respondents.

ALBERTO SALDAJENO, ET AL.,

Petitioners,

v.

ISHIHARA SANGYO KAISHA LTD., ET AL.,

Respondents.

On Petitions for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

NATHAN LANE III JOHN H. BEISNER

JOSEPH A. MECKES (Counsel of Record)

SQUIRE SANDERS & DEMPSEY LLP JOHN F. NIBLOCK

One Maritime Plaza PAMMELA QUINN

Suite 300 O’MELVENY & MYERS LLP

San Francisco, CA 94111 1625 Eye Street, NW

(415) 954-0200 Washington, DC 20006

Counsel for Ishihara Sangyo ~ (202) 383-5300

Kaisha Ltd., Ishihara Corporation Counsel for-Mitsubishi

(U.S.A.), and ISK Americas Materials Corporation &

Incorporated Mitsubishi Materials U.S.A.

Corporation

(Additional Counsel Listed on Inside Cover)

———— ee

o\3

DAVID M. BALABANIAN

CHRISTOPHER B. HOCKETT

THOMAS S. HIXSON

BINGHAM MCCUTCHEN LLP

3 Embarcadero Center

SAN FRANCISCO, CA 94111

(415) 393-2000 3

Counsel for Mitsui & Co., Ltd. an

Mitsui & Co. (U.S.A.), Inc.

BARBARA CROUTCH

PILLSBURY WINTHROP, LLP

725 S. Figueroa St., Suite 2800

Los ANGELES, CA 90017

(213) 488-7100

Counsel for Mitsubishi Heavy

Industries America, Inc. and

Mitsubishi Heavy Industries, Ltd.

MARGARET K. PFEIFFER ~

JOSEPH J. REILLY

SULLIVAN & CROMWELL LLP

1701 Pennsylvania Ave., NW

WASHINGTON, DC 20006

~ (202) 956-7500

Counsel for Nippon Steel

Corporation, Nippon Steel U.S.A.,

Inc., Nippon Steel Trading Co.,

Ltd., and Nippon Steel Trading

America, Inc.

MATTHEW E. DIGBY

HEIDI A. LEIDER

BINGHAM MCCUTCHEN LLP

355 S. Grand Avenue, Suite 4400

Los ANGELES, CA 90071

(213) 680-6400

Counsel for Mitsui Mining Co.,

Ltd., Mitsui Mining USA, Inc.,

Taiheiyo Cement Corp., and

Taiheyo Cement U.S.A., Inc.

ARNE D. WAGNER

MORRISON & FOERSTER LLP

425 Market Street

SAN FRANCISCO, CA 94107

(415) 268-7000 -

Counsel for Mitsubishi

Corporation and Mitsubishi

International Corporation

a A

i

QUESTIONS PRESENTED i

The decision below in these related petitions (Nos.

02-1776, 02-1784) held that California Code of Civil Proce-

dure § 354.6 is preempted by the foreign affairs power of the

federal government. These petitions ask this Court to resolve

the following questions related to that decision:

1. Whether the decision is correct.

2. Whether the multilateral Treaty of Peace with Ja-

pan, Sept. 8, 1951, 3 U.S.T. 3169 (“Treaty’’) prohibits these

private causes of action against private Japanese companies.

3. Whether the Treaty violates international law by

waiving the claims at issue in certain of these cases, given

that they involve allegations of wartime forced labor.

4. Whether the court below properly decided a ques-

tion of state law that the court noted “did not affect the out-

come”’ of the case.

5. Whether there is removal jurisdiction over certain

of these cases.

ll

Rule 29.6 Corporate Disclosure Statement

Ishihara Corporation (U.S.A.)’s ultimate parent cor-

poration is Ishihara Sangyo Kaisha, Ltd., and no other pub-

licly traded company owns 10% or more of its stock.

Ishihara Sangyo Kaisha, Ltd. does not have any par-

ent companies. Mitsui & Co, Ltd. is the only publicly held

company that owns 10% or more of its stock.

ISK Americas Incorporated is a subsidiary of Ishihara

Sangyo Kaisha, Ltd. No other publicly held company owns

10% or more of its stock.

Mitsui Mining Co., Ltd. is a Japanese public com-

pany listed on the Tokyo Siock Exchange. No publicly held

company owns 10% or more of its stock.

Mitsui Mining USA, Inc. is a 100% subsidiary of

Mitsui Mining Co., Ltd.

Mitsubishi Corporation is a public company listed on

the Tokyo Stock Exchange. No publicly held company owns

10% or more of the outstanding stock of Mitsubishi Corpora-

tion. Mitsubishi International Corporation is a wholly-owned

subsidiary of Mitsubishi Corporation.

Mitsubishi Heavy Industries, Ltd. is a Japanese pub-

lic company and is listed on the Tokyo Stock Exchange. No

publicly held company owns 10% or more of its stock. Mit-

subishi Heavy Industries America, Inc., is a wholly-owned

subsidiary of Mitsubishi Heavy Industries, Ltd.

Mitsubishi Materials Corporation has no parent cor-

poration, and no publicly held company owns 10% or more

of its stock.

ill

Mitsubishi Materials U.S.A. Corporation’s parent

corporation is Mitsubishi Materials Corporation, and no

other publicly held company owns 10% of Mitsubishi Mate-

rial U.S.A. Corporation’s stock or more.

Mitsui & Co., Ltd. is a public company listed on the

Tokyo Stock Exchange. No publicly held company owns

10% or more of the outstanding stock of Mitsui & Co., Ltd.

Mitsui & Co. (U.S.A.), Inc. is a wholly-owned subsidiary of

Mitsui & Co., Ltd. .

Nippon Steel Corporation is a Japanese public com-

pany, listed on the Tokyo Stock Exchange. No publicly held

company owns 10% or more of its stock. Nippon Steel

U.S.A., Inc. is a wholly-owned subsidiary of Nippon Steel

Corporation.

Nippon Steel Trading Co., Ltd. is a Japanese public

company. Nippon Steel Corporation and Mitsui & Co., Ltd.

are the only publicly held companies that own 10% or more

of its stock.

Nippon Steel Trading America, Inc., is a wholly-

owned subsidiary of Nippon Steel Trading Co., Ltd.

Taiheiyo Cement Corporation is a Japanese business

association listed on the Tokyo Stock Exchange. No publicly

held company owns 10% or more of its stock. Taiheiyo Ce-

ment U.S.A., Inc. is a wholly-owned subsidiary of Taiheiyo

Cement Corporation.

iV

TABLE OF CONTENTS

Page

FREES LADO FREE E YB MOED exis sunsitesnsantnsienninmnespionnianasibatabceuns 1

CORPORATE DISCLOSURE STATEMENT .............0...... ll

TRS GR CAS i 6 itiiintcntininniaeadeedel 1V

EARLS GP PLT EINAOUEA MOU sisi livendaissdnssaoesinsnntensiaseninlannien V1

BRIEF OF RESPONDENTS IN OPPOSITION .................. ]

CP EINES SEAT virmsitiouieinbinlaheleumi dio tan 2

PERTINENT CONSTITUTIONAL

PROVISIONS, TREATIES AND STATUTEG............0.000.4. 3

STA TRIES CR TR CA iscessascrciddiinrniscinraichaeetiancions 3

REASONS FOR DENYING THE PETITION ................... 13

I. THERE IS NO BASIS FOR REVIEW OF :

THE MERITS OF THE DECISION BELOW............... 13

A. The Court of Appeals Properly Held

Section 354.6 Interferes With The Foreign

Policy Choices Reflected In The Treaty of

Peace With Japan And The War Claims

B. The Court of Appeals Did Not

Inappropriately Resolve A Question of

NE ED iicesucivininanicmaaaenemaataaa aaa 18

C. The Decision Below Is Independently

Justified On Two Separate Bases.................00:c0008 21

Il. FEDERAL SUBJECT MATTER

JURISDICTION UNQUESTIONABLY

EARS 20 EE PERIGEE SAGES sessaviviacoricnscsreeananemaien 23

A. Diversity Jurisdiction Exists In At Least

CUI a vssennsixessncicincesdecenleninadnaminia aan manaaaaedaaae 23

Vv

TABLE OF CONTENTS (continued)

B. The Treaty And The War Claims Act

Completely Preempt Petitioners’ Claims................ 24

C. Federal Jurisdiction Exists Because A

Substantial Federal Question Is An

Essential Element of Petioners’ Claims.................. 28

CU oiestasrasensnecésnninntnenensnsnatconnernsiasnanvaanimnsagvenenen 30

vi

TABLE OF AUTHORITIES

Page(s)

CASES

Allstate Ins. Co. v. Hague,

ee I irae cotati eecoee ameeaecien 21

Am. Ins. Ass'n v. Garamendi,

a te eae Se OPE as tcesna suena be vacvsnedvonecyses passim

Asante Techs., Inc. v. Pmc-Sierra, Inc.,

164 F. Supp. 2d 1142 (ND. Cal. 2001)......0..cccccccesceee 25

Baker v. Carr,

I WI IN ions hai peten hatsapesecnteiecskcdemataeeeeets 22

Banco Nacional de Cuba v. Sabbatino,

a I sacar casei rcoccacs eons eto cetsnioreseas 29

Beneficial Nat’l Bank v. Anderson,

Bee Ws es I I iaicscct rece ecninseekepscunkines 25, 26, 27

Botsford v. Blue Cross & Blue Shield of

Mont., Inc.,

BER Fe FOO CEG, BOE neiccncrenivecnsccseoscnsonieseecensen 25

Caterpillar, Inc. v. Williams,

OE RU aeacenesacstneecistseasacedunsanscaadenniontuntid 25

City of Chicago v. Int’! Coll. of Surgeons,

FE Se SI ncaa iaitcces heen eedeaniess 28

Comm'r v. Estate of Bosch,

ee ry IR cee dcttsentasninaveeon edna souiaenscraveiciana 19

Crosby v. Nat'l Foreign Trade Council,

I. I as hesis sicditecioccpctnudek etna iionanauioiens 20

Dames & Moore v. Regan,

GE Wale Os II gcse evcxecarissclaesceeiasnaserattasanacnt 17

Deutsch v. Turner Corp.,

Se IE ics rekincpeertntpemennerceneertomnann passim

Eastern Enters. v. Apfel,

Fe a Se I chests tices ceecninccusseaicneeaienen 21

Vil

Gaming Corp. of Am. v. Dorsey & Whitney,

Be Pe NE, FI ees cndnencesessnssnsdnoncnnsvarvaesien 26

Husmann v. TWA,

tye Bebo Ele, | er eneen rrr 25

In re World War II Era Japanese Forced

Labor Litig.,

114 F. Supp. 2d 939 (N.D. Cal. 2000) ........0.. ee 10

In re World War II Era Japanese Forced

Labor Litig.,

164 F. Supp. 2d 1153 (N.D. Cal. 2001) ................ passim

Joo v. Japan,

Re Fe ie, Gs BN sisiccetirinsststnrrresinsesrsensons 17

McCulloch v. Maryland,

PF Oe, Oe Py on cigsiies i csscdngnssssccsveseerreee 27

Metro. Life Ins. Co. v. Taylor,

Oe ee ier saieci vided vacedentescantvernrsiesse Ye

Mitsubishi Materials Corp. v. Superior Ct.,

130 Cal. Rptr. 2d 734 (Cal. Ct. App.

et Ess re sila cadecaseeessvvasiaeonensaesbbaveevcas points 30

New SD, Inc. v. Rockwell Int’l Corp.,

Fe TE, FON iced vscnstrescsectienesensnsvsevenraives 30

Oneida Indian Nation v. County of Oneida,

aos rscvacssowsnsaniaessieapraassneresios 26

Patrickson v. Dole Food Co., Inc.,

Be ee Fe BED oe sncesseccinzsnvcsnsscpesansunrsieans 30

Phillips Petroleum Co. v. Shutts,

Ns elas diseescstnsnercncivanccsernseniinnansias 21

Republic of the Philippines v. Marcos,

ie EE A, CI chic ccnveare stor enscstovnscevensenions 30

Stogner v. California,

eo aka daseaumnratoncianeiocxvavennaivas 22

Texas Indus., Inc. v. Radcliff Materials, Inc.,

Re ee oi sacavendencindseuenenrsssconnazonsess rea 29

Vili

Tiffany v. Nat’l Bank of Mo.,

85 U.S. (18 Wall.) 409 (1874) ooo occccccccccccesceseeseeseee 25

Torres v. Southern Peru Copper Corp.,

Be ce es BION ass icpsreiiceronsasesonansvutesenbsens 30

United States v. The Schooner Peggy,

a Gans racks nessa sarercenenaesetrerenes 17

Verizon Md., Inc. v. Pub. Serv. Comm’n,

a ee Mai FIR enna secs cctvckorsacasvicesicaseeancnses 19, 28

Ware v. Hylton,

se LE BPE FI ooo ia esiseccssnsiccsksescracssocsosaves 27

Wiener v. United States,

Be ne I oc ascsiecdiasaSotaseesannitteaicncessunseessstdoscxenss 27

STATUTES AND CONSTITUTIONAL PROVISIONS

Re Se PO, CI FIGS GR vv vssescssvescscsessecsarcnveesss 9

Cal. Civ. Proc. Code § 354.6 (2003)... passim

U.S. Const. at £ SS, os. 1, 10-14......................;.. 11, 12, 22

fe Bo ee Ee ee C+ renee 11, 22

War Claims Act of 1948,

te ae ee ar 8

OTHER AUTHORITIES

1929 Geneva Convention Relative to the

Treatment of Prisoners of War,

gs. Re ARID S's Sh AE ae en ER 28, 29

1949 Geneva Convention,

6 U.S.T. 3316, T.LA.S. No. 3364, 75

NE I eae sass arcstscralecaoeshl eecendntents ses 28, 29

Pe BR FF I hr biicnvcenrsvacseseeterensexeineraveses 8, 9, 27

FLR. Rep. No. 801-976 (1947).....................ccccccccceseveveves 8, 26

Japanese Peace Treaty and Other Treaties

Relating to Security in the Pacific,

EE hy - * | 7,8

1X

Japanese Peace Treaty Negotiations,

I lags args ocean icon tod vcydk ines ta dnoceoiecs 5, 6

Memorandum to The Secretary of State from

Adrian S. Fisher (the Legal Adviser),

NO el fa cased es davon sass nate u usecase 7

The Federalist No. 3 (John Jay) (Jacob E.

I Mn a oe ade cls lag 27

The Federalist No. 42 (James Madison)

(Jacob E. Cooke ed., 1961)... csccsesveeseeee. 27

The Federalist No. 80 (Alexander Hamilton)

SPE He, MU GUL, CURE Becisssinnpsccsceaseseversvecssevnassenness 27

To T.F. Conway, Dep’t of the Army, 37

I PS. occa cocuupavvarvaseutvestoncnesvabuans 29

Treaty of Peace with Japan,

Sept. 8, 1951, U.S.-Japan 3 U.S.T. 3169............... passim

U.S. Dept. of State, Record of Proceedings of

the Conference for the Conclusion and

Signature of the Treaty of Peace with

5 AERA Ds inore Sateen DS epee Pee eee 6

U. S. Dept. of State, Foreign Relations of the

United States, 1951, Vol. VI: Asia and

the Pacific, Pt. 1, Washington, D.C.: U.S.

2 gD. . g » A MMEESRUPSIRIS, Nop Bln «Mobs Wt enema SL Maa Oe 5

BRIEF OF RESPONDENTS IN OPPOSITION

Petitioners in these related cases (Nos. 02-1776, 02-

1784) offer no plausible reason why this Court should review

the decision below. The judgment of the U.S. Court of Ap-

peals for the Ninth Circuit correctly holds that a California

statute creating a cause of action for World War II era repa-

rations claims — section 354.6 of the California Code of Civil

Procedure — is preempted by the core federal power to make

and resolve war. The United States exercised this power in

the multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3

U.S.T. 3169 (“Treaty”) (02-1776 Pet. App. 87a), which ex-

plicitly precludes the claims asserted by petitioners. The

court of appeals’ ruling is supported by the amicus curiae

position of the United States below. |

Petitioners do not contend that there is any conflict be-

tween the ruling below and any decision of this Court. Nor

do they identify any conflict among the federal courts of ap-

peals or state courts of last resort with respect to any ques-

tion addressed by the court below. Indeed, the petitions are

effectively moot. Shortly after the petitions were filed, this

Court issued its decision in American Insurance Association

v. Garamendi, 123 S. Ct. 2374 (2003). In circumstances

where the state law intrusion into the federal government’s

exclusive foreign affairs power was less obvious than it is

here, Garamendi held another California statute regulating

' The United States filed a Statement of Interest in the district court

below, advocating dismissal of petitioners’ claims on foreign relations

grounds. See Statement of Interest of the United States of America

(“Statement of Interest”) (SER 338-75). “SER” refers to the Supplemen-

tal Excerpts of the Record filed jointly in the Ninth Circuit by respon-

dents in the cases brought by each of the petitioners here. The United

States filed an amicus curiae brief in the court of appeals reaffirming its

view that section 354.6 impermissibly interferes with foreign relations

and is preempted by federal law. See Brief for Amicus Curiae The

United States of America, Nos. 01-17115 et al. (9th Cir. June 6, 2002).

2

World War II claims to be preempted by the foreign affairs

power of the federal government. Garamendi confirms the

court of appeals’ conclusion that the statute at issue in these

cases.is preempted. The petitions should be denied.

OPINIONS BELOW

The petition in No. 02-1776 fails to note that the district

court opinion included in its appendix, 02-1776 Pet. App.

69a, only applies to petitioners in Nos. 01-17115, 01-17124,

01-17134, 01-17155, 01-17185, 01-17195, 01-17252, and

01-17499.? The petition properly reflects that this opinion is

reported at 114 F. Supp. 2d 939. With respect to the remain-

ing POW petitioners (in Nos. 01-17116, 01-17123, and 01-

17157), the opinion of the district court is unreported and 1s

attached in the appendix hereto. App. la-6a.

The petition in No. 02-1784 correctly observes that the

relevant opinion of the district court is reported at 164 F.

Supp. 2d 1153.

> The following cases are before the Court as part of this petition:

Hutchison v. Mitsubishi Materials Corp., No. 01-17115; Tenney v. Mit-

sui & Co., Ltd., No. 01-17116; Rubenstein v. Ishihara Sangyo Kaisha,

Ltd., No. 01-17123; Heimbuch v. Ishihara Sangyo Kaisha, Ltd., No. 01-

17124; Solis v. Nippon Steel Corp., No. 01-17134; Corre v. Mitsui &

Co., Ltd., No. 01-17155; Dunn v. Nippon Steel Corp., No. 01-17157;

Eneriz v. Mitsui & Co., Ltd., No. 01-17185; Poole v. Nippon Steel Corp.,

No. 01-17195; Alfano v. Mitsui & Co. (USA), Inc., No. 01-17252; and

Price v. Mitsubishi Corp., No. 01-17499. Six other cases involving U.S.

or Allied POWs with claims under section 354.6 — King v. Nippon Steel

Corp., No. 01-17160; Levenberg v. Nippon Sharyo Ltd., No. 01-17189;

Wheeler v. Mitsui & Co., Ltd., No. 01-17210; Mente v. Mitsui & Co.,

Ltd., No. 01-17230; Terrence v. Mitsui & Co., Ltd., No. 01-17260; and

Titherington v. Japan Energy Corp., No. 01-17265 — were also consoli-

dated at the district court and the court of appeals, but the plaintiffs in

those cases did not join the petition here.

> The following cases are part of this petition: Llanza v. Mitsui & Co.

(U.S.A.), No. 01-17172; Saldajeno v. Ishihara Sangyo Kaisha, Ltd., No.

01-17176; and Santo Domingo v. Ishihara Sangyo Kaisha, Ltd., No. 01-

3

PERTINENT CONSTITUTIONAL PROVISIONS,

TREATIES AND STATUTES

The following provisions of the United States Constitu-

tion are included in the appendix attached hereto:

Article I, § 8, cls. 1, 10-14 (App. 21a).

Article I, § 10, cls. 1, 3 (App. 22a).

Article II, § 2, cls. 1, 2 (App. 22a-23a).

The 1951 Treaty of Peace with Japan is included in the

petitioner’s appendix in No. 02-1776 (02-1776 Pet. App.

87a-121a).

Relevant excerpts of the War Claims Act of 1948, as

amended and codified in 50 U.S.C. app. §§ 2001 et seq., are

included in the appendix attached hereto (App. 7a-20a).

Section 354.6 of the California Code of Civil Procedure

is set forth in full in the Ninth Circuit’s opinion, 02-1776 Pet.

App. 42a-43a, and in the petitioners’ appendix in No. 2-

1776 (id. at 122a).

STATEMENT OF THE CASE

Petitioners in No. 02-1776, and the putative classes they

claim to represent, are United States service members, or

their heirs, who claim they were subjected to forced labor

during the time they were held as prisoners of war (“POWs”)

by Japan during World War II. Petitioners in No. 02-1784,

and the putative classes they claim to represent, are citizens

and residents of the Philippines during World War II (or

17177. Another case involving Filipino claims — Resus v. Mitsui & Co.,

Ltd., No. 01-17204 — was also consolidated at the district court and the

court of appeals, but the plaintiffs in that case did not join this petition.

4 :

their heirs) who claim to have been subjected to forced labor

during the Japanese occupation.”

A. Background

Beginning in 1999, petitioners filed lawsuits (ultimately

combined in a single multidistrict litigation proceeding)

seeking reparations for the labor they allegedly were forced

to perform for Japanese corporations while held as POWs by

the Japanese military, or as internees in the Philippines. The

purported authority for these lawsuits, brought almost sixty

years after the alleged underlying acts occurred, is section

354.6 of the California Code of Civil Procedure.

Section 354.6 permits any “Second World War slave la-

bor victim . . . or Second World War forced labor victim” to

bring suit “to recover compensation for labor performed”

during World War II against “‘any entity or successor in in-

terest thereof, for whom that labor was performed, either di-

rectly or through a subsidiary or affiliate.” Cal. Civ. Proc.

Code § 354.6(b) (2003). The statute defines “compensation”

as “the present value of wages and benefits that individuals

should have been paid and damages for injuries sustained.”

Id. § 354.6(a)(3). The statute also provides that an action

brought under it will be timely if commenced on or before

December 31, 2010. See id. § 354.6(c).

This statute was enacted nearly fifty years after the

United States and forty-six. other Allied Powers formally

ended the war in the Pacific by signing the multilateral

Treaty, supra, 3 U.S.T. 3169-3328 (02-1776 Pet. App. 87a-

* All references to “POW petitioners” are to the petitioners in No.

02-1776. All references to “Filipino petitioners” are to the petitioners in

No. 02-1784. No classes have been certified in any of petitioners’ cases;

putative class members allegedly number in the “thousands.” E.g., A/-

fano Complaint (SER 124); Saldajeno Complaint (ER tab 2).

a

5

121a).° Under the Treaty, Japan agreed to pay the Allied

Powers approximately $4 billion in reparations from various

sources — primarily from the assets of Japanese nationals,

including Japanese companies, located in Allied and neutral

nations. See U. S. Dept. of State, Foreign Relations of the

United States, 1951, Vol. VI: Asia and the Pacific, Pt. 1,

Washington, D.C.: U.S. G.P.O. (1977) (SER 473). While

the Treaty “recognized that Japan should pay reparations to

the Allied Powers for the damage and suffering caused by it

during the war,” the Treaty also recognized that the re-

sources of Japan were not sufficient “to make complete repa-

ration for all such damage and suffering.” Treaty, supra, art.

14(a), at 3180 (02-1776 Pet. App. 97a). Accordingly, except

for the reparations explicitly provided for in the Treaty, the

Allied Powers agreed to “waive all reparations claims” as

well as “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.” Jd. art. 14(b), at

3183 (02-1776 Pet. App. 99a). The Treaty does not create —

expressly or otherwise — a private right of action against Ja-

pan or its nationals, nor does it authorize any State of the

United States to create such a right.

The decision to limit the amount of reparations paid by

Japan, and to waive all other war-related claims, was dictated

by a number of foreign policy concerns. See generally

Statement of Interest, supra, at 1-2 (SER 338-39). At the

time the Treaty was negotiated, the Korean War was under-

way, Communism had taken hold of China, and Soviet ex-

pansionism was viewed as a worldwide threat. See J apanese

Peace Treaty Negotiations, Mar. 9, 1951, printed in Execu-

* The Philippines was one of the “Allied Powers” under the Treaty.

In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d

1153, 1157 (N.D. Cal. 2001). The Philippines ratified the Treaty on July

23, 1956, and deposited the ratification with the United States pursuant to

Article 24 of the Treaty. /d.

6

tive Sessions of the Senate Foreign Relations Comm. (His-

torical Series) vol. III, Part I, 82nd Cong., 1st Sess., 1951, at

261 (1976) (“Japanese Peace Treaty Negotiations”) (SER

427). This political reality caused the United States to view

an economically stable, anti-communist Japan as essential to

U.S. interests in the Pacific region. See Statement of Inter-

est, supra, at 4 (citing Japanese Peace Treaty Negotiations,

supra, at 261) (SER 341). Japan would be unable to be an

effective Cold War ally if its economy was stifled by the on-

going burden of unresolved war claims. See id. at 4, 5 (cit-

ing Japanese Peace Treaty Negotiations, supra, at 266-67)

(SER 341-42).

The United States also wanted to avoid repeating the

mistakes of the Versailles Treaty, which imposed crushing

reparations on Germany at the end of World War I, and

which many considered to be one of the root causes of World

War II. See Statement of Interest, supra, at 2 (SER 339). If

the Treaty had “validated, or kept contingently alive, mone-

tary reparations claims against Japan, her ordinary commer-

cial credit would vanish, the incentive of her people would

be destroyed and they would sink into a misery of body and

spirit which would make them easy prey to exploitation.”

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) (SER 391).

Finally, the United States government concluded that its

assumption of sole responsibility for Japan’s recovery fol-

lowing the war would mean that any substantial payment of

war-related claims would ultimately become the responsibil-

ity of U.S. taxpayers. See Statement of Interest, supra, at 4-5

(citing Japanese Peace Treaty Negotiations at 266-67) (SER

341-42). For all these reasons, the United States and its Al-

lies agreed in the Treaty to waive all claims against Japan

and its nationals in exchange for the forfeiture by Japan and

its nationals of their foreign assets.

SUE TR

7

The Senate Foreign Relations Committee report recom-

mending approval of the Treaty notes these concerns:

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 pos-

sess at present, destroy the initiative of its people, and

create misery and chaos in which the seeds of discon-

tent 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 Secu-

rity in the Pacific, S. Rep. No. 82-2, at 2 (1952) (SER 407).

The Committee recognized that the Treaty did not “give a

direct right of return to individual claimants except in the

case of those having property in Japan.” Jd. at 13 (SER 408).

Rather, the Committee 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.” Jd. at 14 (SER 409).°

Congress decided to use the reparations it received from

Japan under the Treaty — the confiscated assets of Japanese

companies, other Japanese nationals, and the Japanese gov-

ernment located in the United States — to compensate U.S.

~ © Article 14(b) was hotly debated in Congress, and a reservation was

proposed that would have preserved individual claims by providing that

“nothing contained in this Treaty shall be construed to abrogate the .. .

just and proper claims of private citizens of the United States.” State-

ment of Interest, supra, at 9 (quoting 98 Cong. Rec. 2365, 2567-71

(1952)) (SER 346). That reservation was deemed to be “in direct conflict

with Article 14(b),” was defeated, and the Treaty ratified, unchanged. /d.

(quoting Memorandum to The Secretary of State from Adrian S. Fisher

(the Legal Adviser), Mar. 19, 1952, at 4, 5) (SER 346).

8

nationals who were held as POWs during the war.’ Accord-

ingly, it established in the War Claims Act of 1948, 50

U.S.C. app. §§ 2001 et seq. (App. 7a-20a), a federal claims

mechanism by which former POWs, including these POW

petitioners, could seek a share of the reparations received

from Japan. Recognizing “that the question of war claims ...

is too complex to be approached by the Congress on a piece-

meal basis and that the subject in its entirety must be studied

thoroughly before any intelligent action can be taken,” H.R.

Rep. No. 801-976, at 4 (1947) (SER 490), Congress charged

the War Claims Commission with the adoption of uniform

standards and procedures for handling war claims. 50 U.S.C.

app. § 2007 (App. 18a-19a); see aiso 94 Cong. Rec. 567

(1948) (SER 504). The War Claims Act required POWs to

submit their claims to the federal War Claims Commission,

which was to make-a final decision with respect to each

claim. See 50 U.S.C. app. § 2010 (App 19a-20a).

The War Claims Act was intended to be the exclusive

remedy for the payment of reparations to POWs. The Act

does not permit any private lawsuits, and the final agency

decision constitutes the only means for POWs to obtain

compensation. In fact, a proposal that would have allowed

federal courts to adjudicate war compensation claims was

rejected because of the complexity of the issues and the need

to have the claims “classified by experts who are qualified to

do so” in order to “get some rationality out of this situation

’ The Treaty did not specify how the Allied Powers were to distrib-

ute the reparations they received from Japan. While the United States

established claims mechanisms for former POWs to receive a share of the

reparations, it was “the responsibility of each government to provide such

compensation to the persons enjoying its protection as it may determine

to be equitable out of reparations received from Japan or from other

sources.” Japanese Peace Treaty and Other Treaties Relating to Security

in the Pacific, 82d Cong. 147 (1952) (SER 465); see also S. Rep. No. 82-

2, at 13 (SER 408).

Fee fare tar ects Oh sstcia seateritccintinae

9

. . . [and] to determine the categories of claims that should be

allowed.” 94 Cong. Rec. 564 (1948) (SER 501).

In 1997, dissatisfied with the federal government’s poli-

cies regarding the appropriate level and means of compensat-

ing victims of World War II, the California legislature

launched its own efforts to provide a state law remedy for

wartime injuries. One element of California’s reparations

legislation was section 354.6, which, as discussed above, su-

pra p. 4, provides a private cause of action for “Second

World War” forced and slave labor victims, including former

POWs such as certain of the petitioners. Cal. Civ. Proc.

Code § 354.6(b).

California also provided a private cause of action for any

Holocaust victim, heir or beneficiary who “has a claim aris-

ing out of an [unpaid] insurance policy or policies purchased

or in effect in Europe before 1945.” Cal. Civ. Proc. Code

§ 354.5(b) (2003). Section 354.5 was complemented by tlie

Holocaust Victim Insurance Relief Act of 1999 (“HVIRA”),

Cal. Ins. Code Ann. §§ 13800-13807, which required insur-

ance companies licensed to do business in California to dis-

close information relating to unpaid policies issued either by

themselves or affiliated companies in Eurone between 1920

and 1945. This Court held the HVIRA to be preempted by

the foreign affairs power of the federal government in Gara-

mendi, 123 S. Ct. at 2379.

B. Proceedings in the District Courts

Shortly after section 354.6 was enacted, petitioners

brought these actions in California state court. Each action,

as well as several others not part of these petitions, was re-

moved to federal court. Upon removal, some of the petition-

ers unsuccessfully sought remand.

For example, in Tenney, No. 01-17116, the district court

found removal was proper because federal question jurisdic-

10

tion exists under the complete preemption doctrine. The dis-

trict court explained that Congress’s intent in ratifying the

Treaty was to “preempt other laws, including state laws .. .

relating to losses suffered by individuals during WWII,” and

to supplant them with a “trust fund for the payment of war

claims as provided by the War Claims Act of 1948.” SER

252-53. The district courts in other of the related cases

found jurisdiction on additional grounds, including the fed-

eral common law of foreign relations. See, e.g., Poole, No.

01-17195; Solis, No. 01-17134.

Eventually, the Judicial Panel on Multidistrict Litigation

transferred petitioners’ cases to the U.S. District Court for

the Northern District of California for coordinated pretrial

proceedings, along with fourteen other actions by U.S., Al-

lied, Filipino, Korean, and Chinese plaintiffs pursuing simi-

lar claims under section 354.6.

In the Northern District of California, respondents ini-

tially moved to dismiss twelve actions by U.S. and Allied

POWs. Respondents were supported in the district court by

the United States, which filed a Statement of Interest urging

dismissal on the ground that section 354.6 is preempted by

the foreign affairs power of the federal government. SER

328-75. In opposing dismissal, petitioners again argued that

the district court lacked subject matter jurisdiction over their

claims. In a single opinion, the district court reaffirmed that

it had subject matter jurisdiction because each of the actions

asserted claims implicating the common law of foreign rela-

tions. Jn re World War II Era Japanese Forced Labor Litig.,

114 F. Supp. 2d 939, 942-43 (N.D. Cal. 2000). The district

court then concluded that all of the claims by U.S. POWs

were barred by the Treaty and the War Claims Act. Accord-

ingly, the court dismissed the complaints. /d. at 944-49. Ina

subsequent order, the court dismissed three later-transferred

POW cases on the same grounds. App. 1a-6a.

1]

The respondents in the Filipino cases also moved to dis-

miss. The district court dismissed the Filipino complaints on

the ground that the claims were all barred by the Treaty. Jn

re World War II Era Japanese Forced Labor Litig., 164 F.

Supp. 2d at 1157. Unlike the POW petitioners, the Filipino

petitioners did not contest jurisdiction below. The district

court subsequently dismissed the remaining related actions

by Korean and Chinese plaintiffs.

C. The Court of Appeals Decision

The dismissals of all twenty-eight actions were appealed

to the U. S. Court of Appeals for the Ninth Circuit. The

United States filed an amicus curiae brief and appeared at

oral argument to urge affirmance of the district court’s rul-

ing. In a single opinion, the court of appeals affirmed the

dismissal of all actions.*

The court of appeals began by noting that section 354.6

“create[s] a specific cause of action for persons subjected to

slave labor by the Nazis and their allies and sympathizers.”

324 F.3d at 707. The court then analyzed whether section

354.6 unconstitutionally interferes with the foreign affairs

power of the federal government, in particular, “the federal

government’s exclusive power to make and resolve war, in-

cluding the procedure for resolving war claims.” Jd. at 712.

The court noted that of the eleven clauses of the Constitution

granting foreign affairs power to the President and Congress,

seven “concern preparing for war, declaring war, waging

war, or settling war.” Jd. at 711; see U.S. Const., art. II, § 2,

cls. 1, 2 (App. 22a-23a); art. I, § 8, cls. 1, 11-14 (App. 21a).

The Constitution also expressly limits the States’ foreign af-

* The twenty-eight cases dismissed by the Northern District of Cali-

fornia were consolidated on appeal, along with another case based on

section 354.6, Deutsch v. Turner, No. 9090-56673. Of the consolidated

cases, severai are the subjects of separate petitions to this Court. See Kim

v. Mitsui & Co. Ltd., No. 02-1773; Ma v. Kajima Corp., No. 02-1778.

12

fairs powers, particularly in the area of war. See U.S. Const.,

art. I, § 8, cl. 10 (App. 21a). Emphasizing that “it is clear

that matters concerning war are part of the inner core of [the

foreign relations] power,” 324 F.3d at 711, the court con-

cluded that “[mJatters related to war are for the federal gov-

ernment alouie to address,” id. at 712.

In addition, the court of appeals noted that the federal

government had already exercised its exclusive authority *o

resolve World War II and any claims arising out of it. The

United States had signed the Treaty with Japan, which did

not “create[] — explicitly or implicitly — a private right of ac-

tion against Japan or its nationals.” 324 F.3d at 714. In the

absence of some specific action of the federal government

authorizing states to exercise foreign affairs powers, Califor-

nia had no power to modify the federal government’s resolu-

tion of the war. Jd. With regard to the POW petitioners in

particular, the court noted that their claims “were addressed

by the federal government” in the War Claims Act, which

“conceived of no private night of action against . . . Japanese

entities.” Jd. at 714-15. The court of appeals accordingly

held section 354.6 unconstitutional. Jd. at 714-16.

After eliminating section 354.6 as a basis for petitioners’

lawsuits, the court considered all of the other claims and

concluded they were all time-barred. 324 F.3d at 716. Fi-

nally, the court of appeals declined to revisit the argument of

some petitioners that federal jurisdiction was lacking. The

court did note that diversity jurisdiction existed in some

cases, including Dunn v. Nippon Steel Corp., No. 01-17157.

See 324 F.3d at 718.

Petitioners requested rehearing and rehearing en banc,

which were unanimously denied. Following this Court’s de-

cision in Garamendi, petitioners in the related case Ma v.

Kajima Corp., No. 02-1778, filed for reconsideration. The

a

13

Ninth Circuit denied that motion at the same time it issued

the mandate on July 30.

REASONS FOR DENYING THE PETITION

I. THERE IS NO BASIS FOR REVIEW OF THE

MERITS OF THE DECISION BELOW

The petitions in Nos. 02-1776 and 02-1784 raise a num-

ber of related questions challenging the merits of the court of

appeals’ conclusion that section 354.6 unconstitutionally in-

terferes with the foreign affairs power of the federal govern-

ment. Those questions were effectively addressed and re-

solved in this Court’s recent Garamendi decision. Further-

more, the decision below is independently justified on at

least two alternate grounds: section 354.6 is unconstitutional

because it violates due process, and the political question

doctrine dictates that these cases are not justiciable. The ex-

istence of these alternate grounds for affirmance of the opin-

ion below also counsels against review.

A. The Court of Appeals Properly Held Section 354.6

Interferes With The Foreign Policy Choices Re-

flected In The Treaty of Peace With Japan And

The War Claims Act

Petitioners argue that this Court should review whether

the court of appeals mistakenly interpreted the Treaty as pro-

hibiting the assertion of private causes of action by individu-

als against “private Japanese companies that enslaved them.”

02-1776 Pet. at i; see also 02-1784 Pet. at 11 (“private Japa-

nese corporations for their profit-making activities”). This

question is inappropriate for review in light of Garamendi.”

* The POW petitioners mistakenly characterize the decision below as

necessarily resting on a conflict between the terms of the Treaty and sec-

tion 354.6. 02-1776 Pet. at 12. In fact, the court of appeals did not rest

its decision on any particular reading of the Treaty, but rather on a

broader holding that “[mlatters related to war are for the federal govern-

14

Garamendi directly undercuts petitioners’ fundamental

assertion that their claims are private, not governmental, and

therefore “neither are, nor are similar to, reparations claims.”

02-1776 Pet. at 21; 02-1784 Pet. at 12. A similar argument

was made by the State of California regarding the private

insurance claims at issue in Garamendi. This Court rejected

that distinction, noting that the frustration of private insur-

ance claims “fell within the subject of reparations, which be-

came a principal object of Allied diplomacy soon after the

war.” 123 S. Ct. at 2380. More so than private insurance

claims, claims by POWs and others held captive by the en-

emy during the war are quintessential reparations claims to

be resolved by governments at war’s end. The Treaty fully

and finally resolved those claims. Treaty, supra, art. 14(b), 3

U.S.T. at 3183 (02-1776 Pet. App. 99a).

Petitioners similarly assert that “no treaty in the history

of this Republic has ever been held hy this Court to preclude

the assertion of private r.ghts of action by private citizens

against foreign non-government defendants.” 02-1776 Pet.

at i. But Garamendi expressly held that the United States

may properly resolve claims against foreign corporations as

well as foreign governments:

[T]he distinction does not matter. Historically, war-

time claims against even nominally private entities

have become issues in international diplomacy. . ..

Untangling government policy from private initiative

during war time is often so hard that diplomatic ac-

ment alone to address.” 324 F.3d at 712. While noting that neither the

Treaty nor the War Claims Act authorized any private cause of action

against Japan or its nationals, the court of appeals held that “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.” /d. at 712. According to the court of appeals, the

real issue is the “lack of state power” to provide its own resolution of the

war. /d. at 715.

AAAS Naealibigndh \agndcsnne dates tata

15

tion settling claims against private parties may well

be just as essential in the aftermath of hostilities as

diplomacy to settle claims against foreign govern-

ments.

123 S. Ct. at 2387 (footnote omitted).

Petitioners’ other arguments regarding the proper inter-

pretation of the Treaty have been consistently rejected by the

United States, see Statement of Interest, supra (SER 328-75),

and are clearly without merit. Petitioners offer no rationale

for this Court to accept review of these questions. Petition-

ers are wrong that different language used in Article 19 of

the Treaty to waive claims by J apan and its nationals against

the United States and its nationals suggests that Article 14(b)

does not waive the claims here. 02-1776 Pet. at Part C.1.a;

02-1784 Pet. at 14-21. There is nothing ambiguous about the

Scope of the waiver in Article 14. As Garamendi made

clear, the concept of “reparations” includes the types of

claims asserted by petitioners, and Article 14 waives those

claims, along with all other claims arising in the course of

the prosecution of the war.'° The distinctions in phrasing

between Articles 14(b) and Article 19(a) reflect the different

positions of the Allied Powers and Japan — which, for exam-

ple, had to waive claims arising out of the post-war occupa-

tion. Petitioners’ reading ignores both the plain language of

Article 14(b) and the foreign policy goal underlying the

Treaty — the full and final resolution of wartime claims

against Japan.

'° The F ilipino petitioners argue here, as they did below, that Article

14(b) cannot apply to their claims because their forced labor in the occu-

pied Philippines, which was ruled by the Japanese military, did not occur

“in the course of the prosecution of the war.” 02-1784 Pet. at 15-20. The

district court correctly rejected this argument based on its careful analysis

of allegations made in the Filipino petitioners’ own complaints, Jn re

World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d at

1157-58, finding the argument “seriously disingenuous.” /d. at 1157.

16

The POW petitioners are also wrong to assert that the

waiver of their claims by Article 14(b) was revoked by sub-

sequent treaties between Japan and other countries. 02-1776

Pet. at Part C.2. In particular, they invoke Article 26, which

provides that “[s]hould Japan make a peace settlement or 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 pre-

sent Treaty.” Treaty, supra, art. 26, 3 U.S.T. 3169, 3190-91

(emphasis added) (02-1776 Pet. App. 106a). Even if it could

be assumed that any other nation was ever granted a “greater

advantage” than that provided to the United States with re-

spect to Article 14(b)’s waiver, it is the United States as a

party to the treaty who has the nght to invoke that clause,

and the United States has never done so, nor has any other

Treaty party. As the court of appeals correctly held, peti-

tioners cannot invoke this provision, as they were not parties

to the treaty. 324 F.3d at 714n.13.

The Filipino petitioners argue that because their claims

arise from violation of “jus cogens’’ norms, the claims could

not be waived by any treaty.'' 02-1784 Pet. at Part III. This

question is not worthy of this Court’s attention. The Filipino

petitioners point to no conflict among the circuits, no conflict

with any holding of this Court, and no conflict with any

holding of a state court of last resort.'* Indeed, the only

other court of appeals to interpret the Treaty has held that

'' The POW petitioners made similar arguments below, but aban-

doned them in their petition to this Court.

'? In fact, the Filipino petitioners have twisted the jus cogens argu-

ment beyond recognition. There is no jus cogens right to the remedy

they seek — civil litigation in tort and quasi-contract. The Treaty ac-

knowledged that Japan owed compensation to the Allies for war-related

injuries and wrongs, including forced labor, and required Japan to pay

reparations. As this Court recognized in Garamendi, for the “last half

century” the resolution of such claims has been the subject of diplomacy

and treaties. 123 S. Ct. at 2390.

3

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17

claims such as plaintiffs’ could be and were in fact settled

and waived. See Joo v. Japan, 332 F.3d 679, 687 (D.C. Cir.

2003) (affirming dismissal of claims by comfort women

from the Phillipines, Korea, China, and Taiwan because the

Treaty created “a settled expectation, left undisturbed by the

Congress, that Japan would not face suit in the courts of the

United States for its actions during World War II”).

Indeed, the Filipino petitioners’ position would under-

mine the ability of the Uaited States and other nations to re-

solve wars and establish peace through the settlement of

claims, and would require the abrogation of the Treaty and

other international agreements that resolved World War II.

Petitioners’ argument is impossible to reconcile with this

Court’s decision in Garamendi affirming the settlement of

the wartime claims of individuals as a “traditional subject

matter of foreign policy.” 123 S. Ct. at 2390; see also

Dames & Moore v. Regan, 453 U.S. 654, 679 (1981); United

States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110

(1801).

Finally, without citing any authority, the Filipino peti-

tioners argue that the court below erred in holding their non-

section 354.6 claims to be time-barred.'? 02-1784 Pet. at 27.

However, petitioners base this argument on the dual assump-

tion that section 354.6 is constitutional, and that it revives

and extends the statute of limitations on their remaining

claims. Both assumptions are wrong. As noted herein, sec-

tion 354.6 is unconstitutional, even if it is viewed as purely

procedural. Moreover, by its own terms, section 354.6(c)

only extends the statute of limitations on “action{s] brought

'® Relying on the same facts underlying their section 354.6 causes of

action, petitioners alleged a variety of additional claims (including ac-

counting, unjust enrichment, constructive trust, intentional infliction of

emotional distress, conversion, quantum meruit, and unfair business

practices in violation of Cal. Bus. & Prof. Code §§ 17200 et seq.). The

POW petitioners do not challenge the dismissal of these claims.

18

under this section” — not on other actions. Petitioners do not

identify any California statute of limitations, apart from sec-

tion 354.6(c), that permits sixty-year-old claims.

For all the foregoing reasons, petitioners have raised no

issue that would warrant review of whether the Treaty pre-

empts the assertion of their claims.

B. The Court of Appeals Did Not Inappropriately

Resolve A Question of State Law

The POW petitioners argue that the court of appeals

erred in holding that section 354.6 was a substantive statute

creating a cause of action, rather than a purely procedural

statute reviving and extending the statute of limitations on

sixty-year-old claims. 02-1776 Pet. at 11. This issue does

not merit review, because the court of appeals made clear

that its decision did “not depend on [its] conclusion that sec-

tion 354.6 is substantive law.” 324 F.3d at 708. The court

noted that

[w]hether substantive or procedural, section 354.6

creates 4 special rule that applies only to a newly de-

fined class of tort actions — actions brought by Second

World War slave labor victims against the entities

that enslaved them. This new rule 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 (al-

though we doubt that any such claims existed), but,

far more important, by reviving claims that were al-

ready time-barred.

Id. Because the question whether section 354.6 is procedural

or substantive “does not affect the outcome here,” review is

unwarranted. Jd.

Even if the court of appeals’ decision had turned on its

characterization of section 354.6 as a substantive statute cre-

19

ating a private cause of action, review would still be unnec-

essary. Contrary to petitioners’ assertion, this Court has ex-

pressly held that a federal appellate court may assess “how

the highest court of a State would resolve a question of inter-

pretation of State law.” 02-1776 Pet. at i. See, e.g., Comm’r

v. Estate of Bosch, 387 U.S. 456, 465 (1967) (noting that

when there is no decision by a State’s highest court, a federal

court must apply what it “find[s] to be the state law:after giv-

ing ‘proper regard’ to relevant rulings of other courts of the

State”).'* Thus, the court of appeals’ conclusion. that’ section

354.6 creates a private cause of action was both appropriate

and unremarkable.'>

Review is particularly unwarranted in light of this

Court’s recent decision in Garamendi. In that case, the in-

surance statute at issue (the HVIRA) was nothing more than

a reporting requirement. Nonetheless, this Court held that

the HVIRA employed “‘a different, state system of economic

pressure’” that “undercut[ ]” the foreign policy choices made

'* The POW petitioners assert that the California Supreme Court will

soon decide whether section 354.6 is substantive or procedural in a group

of related World War II-era cases. 02-1776 Pet. at 6. In fact, the Califor-

nia Supreme Court stayed proceedings in those cases pending this

Court’s resolution of Garamendi. Given this Court’s decision in Gara-

mendi, the California Supreme Court should have no need to decide

whether section 354.6 is substantive or procedural, since, as discussed

above, no matter its proper interpretation, the statute is clearly pre-

empted.

* Rejecting petitioners’ argument that section 354.6 merely ex-

tended the statute of limitations, the court of appeals correctly noted that

the statute provides that certain individuals “may bring an action.” 324

- F.3d at 707 (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 122 S. Ct.

1753, 1759 (2002), in which this Court noted that language in a statute

providing that a party “may bring an action” “reads like the conferral of a

private right of action”). In addition, the court of appeals noted that the

statute “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 corpora-

tions affiliated with the wrong-doer see § 354.6(b).” 324 F.3d at 707.

20

by the President in resolving wartime claims. 123 S. Ct. at

2391 (quoting Crosby v. Nat'l Foreign Trade Council, 530

U.S. 363, 376 (2000)). The Court noted that the President

had entered into an Executive Agreement reflecting a foreign

policy decision to “encourage European governments and

companies to volunteer settlement funds in preference to liti-

gation or coercive sanctions.” Garamendi, 123 S. Ct. at

2390. California, however, undertook “a different tack of

providing regulatory sanctions to compel disclosure and

payment” that impermissibly interfered with the executive

policy. Jd. at 2391. Significantly, this Court referred to

California’s Civil Procedure Code section 354.5 — the sister

act to section 354.6 — as “a new cause of action for Holo-

caust survivors.” Jd.

Whether section 354.6 is interpreted as creating a cause

of action or as resurrecting a statute of limitations on existing

causes of action, it is clearly more intrusive on federal for-

eign affairs than the HVIRA. Unlike the insurance claims in

Garamendi, which were not resolved at the end of World

War II, but were subject to a voluntary settlement process

under a later Executive Agreement, petitioners’ claims were

explicitly settled and waived by the Treaty. And unlike the

HVIRA, which on its face did not purport to facilitate the

resolution of war claims, section 354.6 applies only to “Sec-

ond World War” forced and slave labor victims, and creates

(or at least resurrects) those precise war claims. Even more

than the insurance regulation in Garamendi, section 354.6

interferes with a “traditional subject matter of foreign policy

in which national, not state, interests are overriding, and

which the National Government has addressed.” Gara-

mendi, 123 S. Ct. at 2390. It matters not whether the Cali-

fornia Supreme Court one day interprets section 354.6 as

substantive or procedural.

21

C. The Decision Below Is Independently Justified On

Two Separate Bases

Although the court below did not need to reach several

alternate arguments made by respondents, it could have

reached the same outcome on at least two alternate theories.

These alternate bases, too, indicate that review by this Court

is not warranted.

First, applying California law to these types of claims

would violate due process given the “weakness of the State’s

interest, against the backdrop of traditional state legislative

subject matter.” Garamendi, 123 S. Ct. at 2392. In Gara-

mendi, the Court held that California’s interest in assisting

several thousand Holocaust survivors in the State could not

displace “general standards for evaluating a State’s claim to

apply its forum law to a particular controversy or transac-

tion.” Jd. at 2393 (citing Phillips Petroleum Co. vy. Shutts,

472 U.S. 797, 820 (1985)). In Shutts, the Court held that the

State must have “‘significant contact or significant aggrega-

tion of contacts’ to the claims asserted” in order to ensure

that the application of state law would not be “arbitrary or

unfair.” 472 U.S. at 821-22 (quoting Allstate Ins. Co. v.

Hague, 449 U.S. 302, 312-13 (1981)). Here, the conduct at

issue is wholly unconnected to California. Neither petition-

ers nor respondents, at the time of the events, could “rea-

sonably have anticipated that their actions would later be

judged” by California law. Allstate, 449 U.S. at 327 (Ste-

vens, J., concurring).

Furthermore, whether section 354.6 is procedural or sub-

stantive in nature does not cure the due process violation.

Even if the statute were interpreted as merely a procedural

extension of the statue of limitations on claims against for-

mer enemy nationals, it would run afoul of the constitutional

prohibition on retroactive legislation. See Eastern Enters. v.

Apfel, 524 U.S. 498, 538-39 (1998) (Kennedy, J., concur-

22

ring) (legislation with retroactive effect is a particular con-

cern for the courts and subject to distrust under due process

jurisprudence); cf Stogner v. California, 123 S. Ct. 2446,

2448 (2003) (invalidating California’s retroactive extension

of a criminal statute of limitations as a violation of the Ex

Post Facto Clause). The court below, while not deciding the

retroactivity issue, recognized that “[s]uch a revival of liabil-

ity — even civil liability — is troubling and raises serious due

process questions.” 324 F.3d at 708.

Second, the political question doctrine renders the claims

brought in these cases non-justiciable. The power to make

war and to enter into treaties 1s committed solely to the po-

litical branches. See U.S. Const. art. I, § 8, cls. 11, 12, 14

and art. II, § 2 (App. 21a-23a). As discussed above, the ne-

gotiations culminating in the Treaty involved complex for-

eign policy considerations and compromises. Petitioners

seek nothing less than a judicial reexamination of policy de-

cisions made half a century ago, pursuant to which Japan be-

came and continues to be a vital ally of the United States.

Such a reexamination would undermine the policy choices of

the political branches embodied in the Treaty, involve the

courts in balancing competing foreign policy concerns, and

potentially expose the United States and its nationals to

claims from Japanese nationals injured during the war. Even

if “judicially . . . manageable standards” existed to allow

courts to resolve every injury resulting from a major world

war, the separation of powers precludes such a judicial un-

dertaking. See Baker v. Carr, 369 U.S. 186, 217 (1962).'°

'© The court of appeals opined that no political question is raised “by

the simple application of the requirements of a treaty to which the United

States is a party.” 324 F.3d at 713 n.11. With regard to petitioners’

claims, however, it is not the interpretation of the Treaty that raises a

political question, but rather petitioners’ attempt to use the courts to undo

the foreign policy decisions made by the President and Congress in the

23

Il. FEDERAL SUBJECT MATTER JURISDICTION

UNQUESTIONABLY EXISTS IN THESE CASES

In addition to challenging the court of appeals’ decision

on the merits, the POW petitioners argue that the federal

courts lack jurisdiction over their claims because they are

merely state law “wage claims.” 02-1776 Pet. at 4. The

Filipino petition raises no jurisdictional issues. !’

The jurisdictional issue the POW petitioners raise is in-

substantial and does not warrant review by this Court. First,

petitioners cannot show that a determination of whether there

was federal jurisdiction would change the decision on the

merits, as there is undisputed jurisdiction in some of the con-

solidated cases. Second, petitioners have not shown, and

cannot show, that any — let alone all — of the several grounds

on which the various district courts found federal jurisdiction

are ones on which the circuits are split, or are issues impor-

tant enough to require this Court’s intervention. Thus, under

the Court’s traditional criteria for granting certiorari, there is

no reason for review of this issue. Finally, the POW peti-

tioners’ jurisdictional argument misconstrues both the nature

of their own claims and the governing law. Under multiple

rationales, federal jurisdiction unquestionably exists in these

cases.

A. Diversity Jurisdiction Exists In At Least One Case

The court of appeals observed that in some of the actions,

including one of the actions that is part of the petition in No.

02-1776, Dunn v. Nippon Steel Corp., et al., No. 01-17157,

there is diversity jurisdiction. 324 F.3d at 718. Petitioners

aftermath of World War II. See generally Garamendi, 123 S. Ct. at

2386-87.

'” Indeed, the Filipino petitioners affirmatively argued to the district

court that federal subject matter jurisdiction was proper under the Alien

Tort Claims Act, 28 U.S.C. § 1350. See In re Worid War II Era Japa-

nese Forced Labor Litig., 164 F. Supp. 2d at 1159.

24

do not and cannot challenge this ruling. Petitioners argue

generally that “[t]he presence of California plaintiffs and de-

fendants precludes federal jurisdiction based on diversity of

citizenship.” 02-1776 Pet. at 3 n.2. However, in Dunn,

complete diversity exists, as the plaintiff is a citizen of Calli-

fornia, and no defendant is a citizen of California. See 324

F.3d at 718. Thus, the lower courts unquestionably had ju-

risdiction to decide the issues raised in this Court.

B. The Treaty And The War Claims Act Completely

Preempt Petitioners’ Claims

Petitioners’ efforts to divorce their claims from the war-

time context in which they arose and to recharacterize them

as simple state law wage claims does not survive this Court’s

decision in Garamendi. In that case, the State of California

argued that the HVIRA was merely a “consumer protection”

regulation designed to inform California residents which in-

surers failed to pay claims. 123 S. Ct. at 2392. The Court

saw through this argument and held that the HVIRA was ac-

tually designed to assist “several thousand Holocaust survi-

vors” in pursuing reparations claims. Jd. at 2393. Noting

that the resolution of “Holocaust-era insurance claims” was

part of the federal government’s ongoing diplomatic efforts

to address the “issue of restitution for Nazi crimes,” the

Court held this area was a “traditional subject matter of for-

eign policy” that overrode state regulation. Jd. at 2390

Where, as here, the POW petitioners’ claims involve the

powers of the federal government to make war and peace,

and where the President and Congress have exercised their

foreign affairs authority to resolve the claims of POWs ex-

clusively through the Treaty and the War Claims Act, peti-

tioners’ purported state law claims are completely pre-

empted, giving rise to federal jurisdiction.

Federal question jurisdiction exists as to each of the

POW petitioners’ actions because the Treaty and the War

25

Claims Act completely preempt World War II claims against

Japan and its nationals. Where federal law completely pre-

empts an area of state law, even complaints that purport to

bring only state law claims are nonetheless “necessarily fed-

eral in character.” Metro. Life Ins. Co. v. Taylor, 481 US.

58, 63-64 (1987); accord Caterpillar, Inc. v. Williams, 482

U.S. 386, 393 (1987) (“Once an area of state law has been

completely pre-empted, any claim purportedly based on that

pre-empted state la v is considered, from its inception, a fed-

eral claim, and therefore arises under federal law.”).

This Court recently explained that in determining

whether Congress intended that a particular statute would

completely preempt state laws on the same subject, it is ap-

propniate to consider whether the statute concerns a subject

the “special nature” of which requires “[uJniform rules . . .

prescribing exclusive remedies” so as to assure “protection

from ‘possible unfriendly State legislation.”” Beneficial Nat'l

Bank v. Anderson, 123 S. Ct. 2058, 2064 (2003) (quoting

Tiffany v. Nat'l Bank of Mo., 85 U.S. (18 Wall.) 409, 412

(1874)).'8

Under these principles, federal law completely preempts

state laws, such as section 354.6, dealing with claims by

POWs for injuries they incurred during World War II. “Vin-

dicating victims injured by acts and omissions of enemy cor-

porations in wartime is . . . within the traditional subject mat-

'® Treaties have the same preemptive force as statutes. See, e.g.,

Husmann v. TWA, 169 F.3d 1151, 1153*(8th Cir. 1999) (Warsaw Con-

vention); Asante Techs. v. Pmc-Sierra, Inc., 164 F. Supp. 2d 1142, 1152

(N.D. Cal. 2001) (United Nations Convention on Contracts for the Inter-

national Sale of Goods). Moreover, the complete preemption doctrine

may be satisfied when the federal law provides a federal administrative

remedy rather than a private cause of action and even when the federal

law provides no remedy at all. See Caterpillar, 482 U.S. at 391 n.4;

Botsford v. Blue Cross & Blue Shield of Mont., Inc., 314 F.3d 390, 396-

97 (9th Cir. 2002).

26

ter of foreign policy in which national, not state, interests are

overriding, and which the National Government has ad-

dressed.” Garamendi, 123 S. Ct. at 2390."

With regard to wartime claims against Japan, the Treaty

required Japan to pay reparations to the Allied Powers, in

exchange for a waiver of all other reparations claims or other

claims arising out of the war. As noted above, the Treaty

reflected political and foreign policy decisions to fully and

finally resolve war claims against Japan.

Using the reparations it received from Japan (the seized

assets of Japan and its nationals, including Japanese compa-

nies, in the United States), Congress enacted the War Claims

Act to distribute these funds to former POWs. The War

Claims Act alone, which the POW petitioners inexplicably

fail even to mention, provides the “exclusive” means of

compensating former POWs. Cf. Beneficial Nat’l Bank, 123

S. Ct. at 2063-64. The Act does not authorize private law-

suits by POWs, and it makes abundantly clear that the fed-

eral government has “set forth procedures and remedies gov-

ering” such claims. /d. at 2063. Those “procedures and

remedies” leave no room for the approach taken by Califor-

nia in section 354.6.

Indeed, as the legislative history of the War Claims Act

shows, the need for uniform federal rules in this area was

viewed as particularly important, with the question of war

claims deemed “too complex” to be approached by the

“piecemeal basis” of lawsuits. H.R. Rep. No. 801-976, at 4

'? In addition, statutes directly addressing foreign affairs — and the

resolution of war claims in particular — are comparable to statutes dealing

with Indian law, which displace state law even when there is no express

indication of an intent to do so because of the “special federal interest” in

such statutes. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536,

543 (8th Cir. 1996) (citing Oneida Indian Nation v. County of Oneida,

414 U.S. 661 (1974)). The federal interest in statutes such as the War

Claims Act is at least as unique. Cf’ Garamendi, 123 S. Ct. at 2390.

27

(1947) (SER 490). Thus, Congress considered and rejected a

proposal to allow federal courts to adjudicate war compensa-

tion claims because of the need to “get some rationality out

of this situation.” 94 Cong. Rec. 564 (1948) (SER 501). In-

stead, Congress chose an exclusive federal commission “in

view of the large number of claimants and the diversity in

the specific circumstances giving rise to the claims.” Wiener

v. United States, 357 U.S. 349, 355 (1958). Given the over-

riding federal interest in the resolution of war claims, the

need for uniformity in this area, and the complete and final

resolution of their claims under the Treaty and the War

Claims Act, it is beyond question that petitioners’ claims are

“necessarily federal in character.” Metro. Life Ins. Co., 481

U.S. at 63-64; see also Beneficial Nat’l Bank, 123 S. Ct. at

2064 (noting relevance of special federal interest in subject

area in making complete preemption determination).”°

The POW petitioners concede as they must that the

“complete preemption doctrine” provides a proper basis for

federal question jurisdiction. 02-1776 Pet. at 8. Nonetheless,

they argue that federal law does not completely preempt their

claims because common law claims between employees and

employers are traditionally governed by state law, and their

claims merely involve a state’s regulation of “the fairness

?° In Beneficial National Bank, the Court stressed the importance of

the historical need for a national banking system free from state interfer-

ence. 123 S. Ct. at 2064 (citing McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 431 (1819)). The historical recognition of the need for fed-

eral exclusivity of foreign relations, particularly the resolution of war

claims, is at least as firmly rooted. See Ware v. Hylton, 3 U.S. (3 Dall.)

199 (1796). Indeed, the need to consolidate this power in the national

government was one of the motivating forces behind the abandonment of

the articles of confederation and the adoption of the Constitution. See,

e.g., The Federalist No. 3, at 14 (John Jay) (Jacob E. Cooke ed., 1961);

The Federalist No. 42, at 279 (James Madison) (Jacob E. Cooke ed.,

1961); The Federalist No. 80, at 535-36 (Alexander Hamilton) (Jacob E.

Cooke ed., 1961).

28

with which [its] citizens are treated in the workplace.” 02-

1776 Pet. at 8. Petitioners’ argument ignores that at the time

their claims arose, they were not employees in a workplace

traditionally subject to state law regulation. Rather, they

were active duty members of the United States military who

were held as prisoners of war by Imperial Japan.

C. Federal Jurisdiction Exists Because A Substantial

Federal Question Is An Essential Element of Peti-

tioners’ Claims

Federal question jurisdiction also exists as to each of the

POW petitioners’ cases because they require the resolution

of a substantial federal question. City of Chicago v. Int'l

Coll. of Surgeons, 522 U.S. 156, 164 (1997) (where resolu-

tion of federal law question is necessary to a decision on the

merits, federal question jurisdiction exists); see also Verizon

Md., Inc. v. Pub. Serv. Comm’n, 122 S. Ct. 1753, 1758-59

(2002) (“the district court has [federal question] jurisdiction

if the right of the [plaintiffs] to recover under their complaint

will be sustained if the Constitution and laws of the United

States are given one construction and will be defeated if they

are given another”). To state a claim under section 354.6,

petitioners were required to prove the amount of wages or

compensation they “should have been paid.” Cal. Civ. Proc.

Code § 354.6(a)(3). Because petitioners were active duty

members of the military and prisoners of war at the time

their claims arose, determining the amount of wages they

should have been paid for their labor necessarily requires

construction of both treaties and federal statutes governing

the proper pay for military personnel held as POWs.’ See,

*! Treaties to which the United States is a party govern whether, how

much, and by whom petitioners “should have been paid” for their labor

as prisoners of war during World War II. The 1929 Geneva Convention

Relative to the Treatment of Prisoners of War, 47 Stat. 2021, and its 1949

counterpart, 6 U.S.T. 3316, T.L.A.S. No. 3364, 75 U.N.T.S. 135, provide

comprehensive rules for when and under what circumstances prisoners of

29

e.g., 1949 Geneva Convention, 6 U.S.T. 3316, 75 U.N.T.S.

(providing comprehensive rules for when and under what

circumstances POWs are entitled to be paid); 1929 Geneva

Convention Relative to the Treatment of Prisoners of War,

47 Stat. 2021 (same); To T-F. Conway, Dep't of the Army,

37 Comp. Gen. 29, 30 (1957) (declaration by the Comptrol-

ler General of the United States that wages and fees received

by members of the military for labor that is connected in

some way to their military service belong to the federal gov-

ernment and must be turned over to the federal treasury).

Thus, even though petitioners purport to assert only state

law causes of action, a necessary element of their claim re-

quires the resolution of substantial questions of federal law:

whether and to what extent active duty military personnel

held as POWs have a right to wages from third parties for

whom they worked during their captivity.”

war are entitled to be paid. For example, Article 34 of the 1929 Geneva

Convention provides that “belligerents” are entitled to “fix[]” the wages

of prisoners of war “by agreements.” 47 Stat. at 2042. Article 34 further

limits and defines which prisoners are entitled to working pay and under

what circumstances. /d. For example, prisoners working in certain ca-

pacities (e.g., camp administration) are generally not entitled to pay,

while others (e.g., those doing work “for the account of . . . private per-

sons”) are to be paid under “conditions . . . regulated by agreement with

the military authority.” /d. Similarly, Article 62 of the 1949 Geneva

Convention allows the “Detaining Power” to establish a “fair working

rate of pay,” which may not be less than one-fourth of one Swiss franc

for a full working day. 6 U.S.T. at 3364.

” The Northern District of California relied on an additional, inde-

pendent basis for federal jurisdiction in these cases, holding correctly that

the subject matter of petitioners’ claims is governed by the federal com-

mon law of foreign relations. 02-1776 Pet. App. 75a & n.6. This Court

has recognized that federal common law provides the rule of decision in

cases involving foreign relations. See, e.g., Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981); Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 425 (1964). Several courts of appeals have

concluded that the federal common law of foreign relations provides a

30

In sum, federal jurisdiction exists over all of these cases

on several independent grounds. For all of the reasons stated

above, the POW petitioners’ jurisdictional arguments are not

worthy of this Court’s attention.

CONCLUSION

Petitioners have provided no plausible reason why this

Court’s limited resources should be devoted to reviewing the

decision below. “To be sure, many of the petitioners are

World War II veterans who “incur[red] enormous personal

loss to preserve our way of life against severe and imminent

threats.” 02-1776 Pet. at 6-7. Nevertheless, the inherent

flaws in their legal arguments, especially following this

Court’s Garamendi decision, strongly counsel against re-

view. Indeed, as one court noted with respect to claims simi-

lar to those brought by petitioners, “[i]t would be a disservice

to [the] heroes of World War II to create the false hope of

some sort of monetary recovery” based on state statutes that

are constitutionally infirm. Mitsubishi Materials Corp. v.

Superior Ct., 130 Cal. Rptr. 2d 734, 737 (Cal. Ct. App.

2003). The petitions for a wnt of certiorari should be denied.

basis for removal jurisdiction. See, e.g., Torres v. Southern Peru Copper

Corp., 113 F.3d 540, 543 (Sth Cir. 1997); Republic of the Philippines v.

Marcos, 806 F.2d 344, 354 (2d Cir. 1986); cf New SD, Inc. v. Rockwell

Int’l Corp., 79 F.3d 953, 955 (9th Cir. 1996). Petitioners suggest, but do

not directly argue as they did below, that the Ninth Circuit rejected the

federal common law of foreign relations as a basis for removal in Pa-

trickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001), aff'd on other

grounds, 123 S. Ct. 1655 (2003). 02-1776 Pet. at 4. But petitioners’

suggestion reads Patrickson too broadly. Patrickson held only that re-

moval jurisdiction could not be based on the simple fact that a foreign

government had expressed an interest in the outcome of a commercial

dispute. 251 F.3d at 803. The court did not have before it a case involv-

ing the federal government’s exclusive powers to make wars, establish

peace, and enter into treaties, nor did Patrickson purport to overrule other

Ninth Circuit precedent such as New SD, Inc., which held that federal

common law can provide a basis for removal jurisdiction.

Respectfully submitted.

NATHAN LANE III

JOSEPH A. MECKES

SQUIRE SANDERS & DEMPSEY LLP

One Maritime Plaza

Suite 300

San Francisco, CA 94111

Counsel for Ishihara Sangyo

Kaisha Ltd., Ishihara Corporation

(U.S.A.), and ISK Americas

Incorporated

DAVID M. BALABANIAN -

CHISTOPHER B. HOCKETT

THOMAS S. HIXSON

BINGHAM MCCUTCHEN LLP

3 Embarcadero Center

San Francisco, CA 94111

Counsel for Mitsui & Co., Ltd. and

Mitsui & Co. (U.S.A.), Inc.

BARBARA CROUTCH

PILLSBURY WINTHROP, LLP

725 S. Figueroa St., Suite 2800

Los Angeles, CA 90017

Counsel for Mitsubishi Heavy

Industries America, Inc. and

Mitsubishi Heavy Industries, Ltd.

MARGARET K. PFEIFFER

JOSEPH J. REILLY

SULLIVAN & CROMWELL LLP

1701 Pennsylvania Ave., NW

Washington, DC 20006

Counsel for Nippon Steel Corp.,

Nippon Steel U.S.A., Inc., Nippon

Steel Trading Co., Ltd., and

Nippon Steel Trading America Inc.

Dated August 5, 2003

JOHN H. BEISNER

(Counsel of Record)

JOHN F. NIBLOCK

PAMMELA QUINN

O’MELVENY & Myers LLP

1625 Eye Street, NW

Washington, DC 20006

Counsel for Mitsubishi

Materials Corporation &

Mitsubishi Materials U.S.A.

MATTHEW E. DicBy

HEIDI A. LEIDER

BINGHAM MCCUTCHEN LLP

355 S. GRAND AVE., SUITE 4400

Los Angeles, CA 90071

Counsel for Mitsui Mining Co.,

Ltd., Mitsui Mining USA, Inc.,

Taiheiyo Cement Corp., and

Taiheiyo Cement U.S.A., Inc.

ARNE D. WAGNER

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, CA 94107

Counsel for Mitsubishi

Corporation and Mitsubishi

International Corporation