Petition for Writ of Certiorari — Saldajeno v. Ishihara Sangyo Kaisha, Ltd.

| File -

V24784 uN 4 2903”

OFFICE OF THE CLERK

The

In

Supreme Court of the Gnited States

.

ALBERTO SALDAJENO, et al.,

Petitioners,

v.

ISHIHARA SANGYO KAISHA LTD., et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

*

JOSEPH W. COTCHETT LOURDES SANTOS TANCINCO

STEVEN N. WILLIAMS TANCINCO LAW OFFICE

COTCHETT, PITRE, SIMON One Hallidie Plaza,

& MCCARTHY Suite 818

840 Malcolm Road San Francisco, CA 94102

Burlingame, CA 94010 415-397-0808

650-697-6000 ROBERT HARWOOD

MICHAEL E. WITHEY WESCHSLER HARWOOD LLP

STRITMATTER KESSLER WHELAN 488 Madison Avenue,

WITHEY COLLUCIO 8th Floor

200 Second Avenue West New York, NY 10022

Seattle, WA 98119 212-935-7400

206-448-1777

Counsel for Petitioners

® BH 2 ©

QUESTIONS PRESENTED

1. Whether the Ninth Circuit erred by affirming a

dismissal pursuant to Fed. Rule of Civil Procedure 12(b)(6)

of claims brought pursuant to-Cal. Code Civ. Proc. 354.6,

by which the State of California sought to provide a forum

for Filipino-Americans to recover damages for having been

forced to perform slave labor for private Japanese busi-

nesses?

2. Whether the Petitioners possess inalienable rights

to be free from violations of fundamental human rights

which could not be waived by the 19£1 Treaty of Peace?

PARTIES TO THE PROCEEDING

The following individuals and entities are parties in

the court below: Alberto Saldajeno, Acelopio Galedo,

Generoso Jacob, Ishihara Sangyo Kaisha, Ltd., Ishihara

Corporation (USA), Taiheiyo Cement, Onoda USA, Ernesto

Santo Domingo, Imelda Santo Domingo, Perfecto Llanza,

Mitsui & Co. (USA), Inc., Mitsui Mining Co., Ltd., Mitsu-

bishi Corporation, Nippon Steel Corp., and Nippon Steel

USA Inc.

ili

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ................ 1

id sc auehandvncnuyeedvaswanseosssessviene 1

hele inl acl ce cuebehicavandeuitsssioctnkonausias 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

Ee AE BET GREET MEE sxnivnensccnessscoscecesssesssessensoves 2

STATEMENT OF THE CASE...................cccseccseeeeeeees 5

TEINS BREUER PUEE vnicsessassessicsscxssciaxevsnevscesseeses 9

REASONS FOR GRANTING THE WRIT................. 11

I. Petitioners’ Claims Are Not Barred ............... 11

II. Claims Against Private Japanese Corpora-

tions That Used Slave Labor Are Not Barred

ee NE icine pivskenviabisescentcueninnsnaers 11

III. The Rights of Petitioners That Have Been

Violated by Respondents are Jus Cogens or

Peremptory Norms of International Law

That Are So Fundamental They Cannot Be

Abrogated by Any Treaty or Agreement......... 21

IV. The Ninth Circuit Erred in Holding That

Petitioners’ Claims Are Barred by the Stat-

I sie sianansinipasbasakaenkdvisewesasiass 27

sbi uk chs bbs puincaiiinn vent exniveninwiade 28

lv

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

OG, Fey acc hirkislndidadccsacinsdtchicdndlammeuanemmaneen 24

BE Wey MCE nse civecsan Senien Genchuscieencacicngerdidecndeleuncanal 24

STATUTES AND RULES

50 U.S.C. ape. G11 GOGmp. EV TOEE) ncvececcecsvevesssssesoserssssosees 18

The Act of February 19, 1879, ch. 90, 20 Stat. 316

IPO scckniuvtnsarethiceicaeeacotanadeaneenaaaneeel 17

The Act of August 7, 1946, ch. 864, 60 Stat. 902

CE Ce RI TE P vnc tarincrssarincinecerasenmions 19

War Powers Act, § 201, 55 Stat. 838, 839 (1941); 50

CA SUR. ELE CI, FG i i oicistecrnnevntierncetencremenens 18

Coaie. Se Ge FUE: BH i vis swiivikvincccccacteteccsvernstcns passim

Cal. Code Civ. Proc. $ 364.G( a B)........0ccscesscsosscossosesescesscoes 6

Cal, Code Civ, Pre. § BEGG) oviscessisasscssveesssssocssvessvutovensirse 7

CASES

Committee of U.S. Citizens in Nicaragua v. Reagan,

SE Fe rs GE, TI verses cisansdocciabsnsisseaess 22, 26

Coniey v. Gibson, 356 U.S. €1 (19B7).......ccccsssevoseseseessesosanes 12

Cost Management Services Inc. v. Washington

National Gas Co., 99 F.3d 937 (9th Cir. 1996)............... 12

Emory v. United States, 19 Ct. Cl. 254 (1894).......14; 17, 18

Fernandez-Rodriguez v. Wilkinson, 505 F. Supp.

Pe Ca I RI shckcesccsousscersslinndcseteenneemunatemmnne 24

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)......... 24

TABLE OF AUTHORITIES — Continued

Page

Frankel v. Eder, 185 Misc. 274, 56 N.Y.S.2d 727

(FI ciscnsiinsstiennintisnnicniniccacasemniiamaaaammeaaiias 19, 20

General Wagener, Revista Penale 753 (Sup. Mil.

ema, BRR RENE wisnecs cacnsnrcssinnactintilensviteevninanananatne 23

Geofroy v. Riggs, 1383 U.S. 258 (1890)..............cccssseeeeeeeeees 20

In re World War II Era Japanese Forced Labor

Litigation, 114 F. Supp.2d 939 (N.D. Cal. 2000).................. 9

In re World War II Era Japanese Forced Labor

Litigation, 164 F. Supp.2d 1153 (N.D. Cal. 2001)........... 9

Jeong v. Onoda Cement Co. Ltd., 2000 U.S. Dist.

Eee TOW CBD. CARL, FIO iucivicpsanensinpsnicicnnincnntananints 15

Kawakita v. United States, 343 U.S. 717 (1952)......... 15, 16

Mitchell v. United States, 24 Ct. Cl. 399 (1889)................ 18

Murray v. The Charming Betsy, 6 U.S. (2 Cranch)

GE CDE) .aicenssrssiccvcsactneineioiabeidaranmeien lokam 24

Prosecutor v. Tadic, Int’1-Crim. Tribunal for the

Former Yugoslavia, IT-94-1-AR72 (Appeals

Comnian, SOE, FT hiinsicssnvsariensnegcuasintasicaiilentnlogaianmans 23

Richardson v. United States, 114 Ct. Cl. 695 (1949)......... 19

Rocca v. Thompson, 223 U.S. 317 (1912).............ccccccssrsrees 13

Siderman de Blake v. Republic of Argentina, 965

Fe Ge Ce Ce i veaniveseensetincsticrimiiniacs 21, 22, 23

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)...........0...... 24

The Nereide, 18 U.S. (9 Cranch) 388 (1815)....................4. 24

The Nuremberg Trial, 6 F.R.D. 69 (Intl Military

FRR TI ieveesvesstuvistinccacematetntaciaiams POUR rE 22

The Paquete Habana, 175 U.S. 677 (1900).........:cccccceeeeees 24

vi

TABLE OF AUTHORITIES -— Continued

The Schooner Amistad, 40 U.S. (15 Pet.) 519 (1841)........ 22

United States of America v. Alfred Felix Alwyn

Drupp von Bohlen und Halbach, IX Trials of War

Comme! L£arer DEO. 16 CUD) oacesesscsececsonvccnspenscvsctinensossennace 22

United States of America v. Carl Krauch, VIII

Trials of War Criminals Before the Nuremberg

Military Tribunals Under Control Council Law

BO, BO CEIIID scvsienssvicnsssnenccencarensinmeumnaeanncaamaalan 23

United States of America v. Friedrich Flick, VI

Trials of War Criminals Before The Nuremberg

Military Tribunals Under Control Council No. 10

(2QIEE snsiinsvecesevévesenssacsicevacnianteweiensmnenscihiaeiannaas sie anemia 23

United States v. Matta-Ballesteros, 71 F.3d 754 (9th

CRE. . BI) assevocsvessiininncecrvesepintetnsasnecummmaaiaaanaaaaneee 22, 23

United States v. North, 112 U.S. 510 (1884)... 18

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)................. 25, 26

TREATY OF 1951

I Bi ictasitainviacaamaaaae 12, 13, 14, 20

IE Fe vitinieenciticieidesteticmpceenraae ninibibeaaeeeas 14, 20

DUT Ti insivnisenscinsstinrncensnionedancunaeeaanee 14, 15

OTHER AUTHORITIES

1A Singer, Sutherland on Statutory Construction,

§ 32.08 at B73 (GG OG. TGBE)......ceccccesesreevesssscseasesecnssssens 13

1 Glam, BRR Coes. BE CRI) sss cnseincssscicnsescatveaereenniersnnenes 24

Black’s Law Dictionary 1298 (6th ed. 1990)..................0008 12

TABLE OF AUTHORITIES - Continued

Page

Jordan J. Paust, Joan M. Fitzpatrick, and Jon M.

Van Dyke, International Law and Litigation in

i: Se ibctttnnntienttatedisidcnanabidaiialactiiann 23, 24

Legislative Counsel’s Digest for Senate Bill 1245.............. 8

Matthew Lippman, War Crimes Trials of German

Industrialists: The “Other Schindler,” 9 Temp.

gg fe Be As 1a | Senna EE Cen 23

Restatement (Third) of the Foreign Relations Law

of the United States § 702 cmt. n (1987)... eee. 22

ee re Oe eid cicaiiicenatrehdiannenidecicinecabtieninines 25

PI SII, GIR BEING cneccccvntnccrintcccssisctconsnensosoncanes 17

Re a Bacco nncccnnccenassececddaveasicedabacantnns 21

Vienna Convention, art. rir ieee ere eh rea ee 21

PETITION FOR WRIT OF CERTIORARI

Petitioners Alberto Saldajeno, Acelopio Galedo,

Generoso Jacob, Ruben Resus, Perfecto Llianza,

Ernesto Santo Domingo and Imelda Santa Domingo

respectfully pray that a writ of certiorari be issued in this

case. Petitioners are Filipino-Americans who were forced

to labor for private Japanese corporations during the

Second World War. The Ninth Circuit, in violation of the

United States Constitution, the Law of Nations, and the

Federal Rules of Civil Procedure, has affirmed the dis-

missal of Petitioners’ claims, denying them any form of

relief. Petitioners seek this Court’s review of the unconsti-

tutional decision below in order to protect and enforce the

human and civil rights of Petitioners as well as the sover-

eign powers of the State of California.

+

OPINIONS BELOW

The order of the United States Court of Appeals for

the Ninth Circuit affirming the dismissal of this action is

reported at 317 F.3d 1005 (9th Cir. 2003). The Ninth

Circuit’s order denying rehearing is set forth at pages 20-

23 of the Appendix. The decision of the District Court

dismissing the Filipino claims is reported at 164

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

-

Vv

JURISDICTION

The action was originally filed in the Superior Court

of the State of California, County of San Francisco, and

removed by Respondents to the United States District

Court for the Northern District of California on the

sities iataciaamaaiaaaaaaitidaainiianaiineiniaaeanieenmmisidieeie ee

2

grounds of federal question jurisdiction. The judgment of

the district court dismissing Petitioners’ complaint was

entered on September 28, 2001. A timely notice of appeal

to the United States Court of Appeals for the Ninth Circuit

was filed on October 19, 2001 in the Saldajeno and Santo

Domingo cases. As set forth above, the Ninth Circuit

issued a decision affirming the dismissal on January 21,

2003, and an order amending the decision and denying

rehearing on March 6, 2003 (see pages 15-23 of the Ap-

pendix).

+

CONSTITUTIONAL PROVISIONS, STATUTES

AND TREATIES INVOLVED

United States Constitution, Art. I, § 8, clauses 1,

3, 10-14 provide:

The Congress shal] have Power To lay and collect

Taxes, Duties, Imposts and Excises, to pay the Debts and

provide for the common Defence and general Welfare of

the United States; but all Duties, Imposts and Excises

shall be uniform throughout the United States;

* * *

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes;

* * *

To define and punish Piracies and Felonies committed

on the high Seas, and Offences against the Law of Na-

tions;

To declare War, grant Letters of Marque and Reprisal,

and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of

Money to that Use shall be for a longer Term than two

Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of

the land and naval Forces;...

United States Constitution, Art. II, § 2, clauses 1-

2 provide:

The President shall be Commander in Chief of the

Army and Navy of the United States, and of the Militia of

the several States, when called into the actual Service of

the Unite States; he may require the Opinion, in writing,

of the principal Officer in each of the executive Depart-

ments, upon any Subject relating to the Duties of their

respective Offices, and he shall have Power to Grant

Reprieves and Pardons for Offences against the United

States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two

thirds of the Senators present concur; and he shall nomi-

nate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other public Ministers

and Consuls, Judges of the Supreme Court, and all other

Officers of the United States, whose Appointments are not

herein otherwise provided for, and which shall be estab-

lished by Law: but the Congress may by Law vest the

Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or in

the Heads of Departments.

4

California Code of Civil Procedure § 354.6 pro-

vides:

(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 busi-

ness 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 sympa-

thizers, 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 busi-

ness 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 injuries 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 without diminution for wartime or postwar

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 com-

pensation 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 juris-

diction 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.

Peace Treaty of 1941, § 14(b)

Except as otherwise provided in the present

Treaty, the Allied Powers waive [1] all repara-

tions claims of the Allied Powers, [2] other claims

of the Allied Powers and their nationals arising

out of any actions taken by Japan and its nation-

als in the course of the prosecution of the war,

and [3] claims of the Allied Powers for direct

military costs of occupation.

¢

STATEMENT OF THE CASE

This petition seeks to remedy the deprivation of

Petitioners’ fundamental human rights, and the conse-

quent unjust enrichment of Respondents, which resulted

from the orders of the courts below dismissing Petitioners’

complaint. The right to be free from slavery is perhaps,

after the right to life, the most fundamental of human

rights. Petitioners sought redress for this violation from

ee

6

Respondents, private corporations which profited — and

retained the profits — from Petitioners’ forced labor. The

deprivation of rights from which this case arises, and the

disregard for that deprivation and for California’s efforts

to provide a forum for redress, cry out for correction by

this Court. The Ninth Circuit erred by placing its gloss of

historical events on the factual record, and in that manner

violated the Federal Rules of Civil Procedure.

Petitioners are Filipino-Americans who were forced by

Respondents to perform labor under inhuman conditions

in the Phillippines during World War II. Petitioners

suffered inhumane physical and mental torture and

received starvation rations, no medical care, and no

compensation of any kind for their work.

In order to provide redress to victims of Japanese

corporate forced labor such as Petitioners, the Legislature

of the State of California enacted California Code of Civil

Procedure § 354.6, which extended the period in which any

person could file an action seeking recovery against

entities for which they performed forced labor during the

Second World War. The statute provides that any “Second

World War forced labor victim” may bring an action to

recover “compensation” from any entity (or its successor in

interest) for whom that labor was performed, either

directly or through a subsidiary or affiliate. Id. “Second

World War forced labor victim” is defined as “any person

who was a member of the civilian population conquered by

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 sympathiz-

ers, or enterprises transacting business in any of the areas

occupied by or under control of the Nazi regime or its allies

and sympathizers.” Cal. Code Civ. Proc. § 354.6(a)(2).

The statute extends the statute of limitations for such

actions for ten years to December 31, 2010 in recognition

of the passing of this generation of men. Cal. Code Civ.

Proc. § 354.6(c). The full text of the statute is set forth in

the immediately preceding section.

Private Japanese businesses were operating in the

| Phillippines before the Japanese invaded the Phillippines

| on December 8, 1941. After the Japanese army invaded

the Phillippines, private companies forced Petitioners to

work for them as slave and forced laborers.

Petitioners worked oppressive hours in mining and

farming, with little nutrition. They were forced to perform

back-breaking manual labor under extraordinarily harsh

and dangerous conditions. Alberto Saldajeno, now 83 years

old and a resident of Daly City, was forced to labor at a

copper mine owned by Ishihara Sangyo. Acelopio Galedo,

now 81 and a resident of San Francisco, was forced to build a

road for Ishihara Sangyo’s copper mine. Genoroso Jacob,

now 80 years old and a resident of San Francisco, was forced

to work in a coal mine owned by Taiheiyo Kogyo (now

Taiheiyo Cement) where he was repeatedly beaten.

Ernesto Santo Domingo, who has passed away since this

action was filed, was 16 years old when he was forced to

labor without pay in the copper mines owned by Ishihara

Sangyo. He suffered physical and emotional abuse, and

contracted malaria and dysentery while forced to labor.

Workers such as Petitioners were provided by the

Japanese government at the request of private industry.

The private companies would also kidnap people they

found in public, herd them into trucks, and force them to

work. One of the means that the private companies used to

force Petitioners to work for them was to threaten their

families with death.

ee

8

Conditions in the mines were very dangerous. Cave-

ins, tunnel collapses, and other threats were frequent, in

large part due to the crude conditions in which the Peti-

tioners were forced to work. Men, women, and children

were forced to work, and were beaten if they failed to meet

their quotas. Those who refused to perform labor were

subject to being hunted, arrested, and tortured.

Section 354.6 was enacted to provide a means for

slave and forced labor victims like Petitioners to seek

redress in a court of law. The Legislative Counsel’s Digest

for Senate Bill 1245 states:

This bill would authorize any World War II slave

labor victim or World War II forced labor victim,

or heir of the victim, to bring an action in supe-

rior court to recover compensation, as defined,

from any entity or successor in interest thereof,

for whom the labor was performed, either di-

rectly or through a subsidiary or affiliate. It

would provide that any action brought under

these provisions shall not be dismissed for failure

to comply with the applicable statute of limita-

tion, provided the action is commenced on or be-

fore December 31, 2010.

Section l(c) of the same Legislative Counsel’s Digest

provides the policy reasoning for this Legislation:

(c) California has a moral and public policy in-

terest in assuring that its residents and citizens

are given a reasonable opportunity to claim their

entitlement to compensation for forced or slave

labor performed prior to and during the Second

World War.

5

9

PROCEDURAL HISTORY

On August 2, 2000, Petitioners in Saldajeno filed their

Complaint against Respondents in the San Francisco

County Superior Court. The Complaint in the Santa

Domingo action was filed on October 11, 2000, also in the

San Francisco County Superior Court. Respondents filed

Answers to the Complaints, and removed them to the

United States District Court for the Northern District of

California. On June 5, 2000, the Judicial Panel on Multi-

District Litigation (“MDL Panel”) issued an order transfer-

ring 12 related cases that were pending in the Central and

Northern Districts of California to Judge Vaughn Walker in

the Northern District. On June 26, 2000, Judge Walker

issued “Order No. 1” consolidating those 12 cases for pretrial

purposes. The Filipino cases were then transferred to Judge

Walker, and also consolidated for pretrial purposes.

Following oral argument, the District Court issued

Order No. 4 on September 21, 2000, which dismissed with

prejudice claims made by Allied POWs against the Japa-

nese companies. See In re World War II Era Japanese

Forced Labor Litigation, 114 F. Supp.2d 939 (N.D. Cal. 2000).

In this order, the District Court held the Treaty of 1951

waived claims of all Allied nationals. 114 F. Supp.2d at 945.

Second, the Court found that there was no “sustainable

distinction” between Japanese corporations and the Japa-

nese government during the war years. 114 F. Supp.2d at

948.

On September 17, 2001 the District Court entered an

order dismissing the Filipino cases on the same basis as

the Allied POWs. See In re World War II Era Japanese

Forced Labor Litigation, 164 F. Supp.2d 1153 (N.D. Cal.

2001). This order largely incorporated the prior Order No.

10

4 which dismissed the Allied POW cases. The District

Court found that the Philippines was one of the Allied

Powers which signed the Peace Treaty, albeit not ratifying

it until 1956. Id. at 1157. The District Court reiterated its

earlier position that it would be a “stretch” to distinguish

between the conduct of Japan and the conduct of Japanese

companies during the war. Jd. at 1158.

In an opinion issued on January 21, 2003, the Ninth

Circuit affirmed the District Court on the ground that

California’s law providing redress to Petitioners and

people like them intruded upon the “federal government’s

exclusive power to make and resolve war.” The opinion

focused on the inhuman suffering and hardship of holo-

caust victims during the Second World War, rather than on

the hardships suffered by Petitioners, and noted that both

holocaust victims and United States prisoners of war were

provided with mechanisms for — albeit limited -- compen-

sation. 317 F.3d 1024-1026. The opinion never mentions

any type of compensation program for Filipino-Americans

like Petitioners. The Ninth Circuit also ruled that all of

the claims at issue were stale despite the extension of the

statute of limitations provided by Cal. Code Civ. Proc.

§ 354.6. The opinion also noted the “uncertain jurisdic-

tional issues” of cases like Petitioners’ that had been

removed to federal court, 317 F.3d at 1030, but concluded

that lack of federal jurisdiction “could have no effect on the

outcome of any of the cases.” Id.

4

v—

11

REASONS FOR GRANTING THE WRIT

I. Petitioners’ Claims Are Not Barred

In viewing the claims at issue in this case it is

tempting to substitute the perception of history with the

factual record. The error of the Court below was its

acceptance of a broad and unlimited federal war power

that far eclipses the powers of the Commerce Clause;

indeed, a power so sweeping that anything tangentially

connected to it is swallowed up. The Court below cou-

pled that perspective of Federal power with a historical

perception of the Second World War which fails to

account for the private conduct underlying Petitioners’

claims. As we now see in the perpetuation of the war in

Iraq, a banal commonplace world carries on even during

the heights of war. To assume without any exception

that any conduct by any Japanese corporation during

the Second World War was, in the terms of the govern-

ing phrase of this case, “in the prosecution of the war”

and to accept this interpretation in deciding a motion to

dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), was clear error and mandates granting this

petition.

II. Claims Against Private Japanese Corpora-

tions That Used Slave Labor Are Not Barred

by the “War” Power

Petitioners’ claims are against private Japanese

corporations for their profit-making activities, and not for

acts committed in the prosecution of the war. The Courts

below have refused to recognize the existence of factual

issues concerning whether any of the Respondents’ con-

duct was actually part of the prosecution of the war and

thus subject to the War power. By doing so, all factual

12

inferences were granted in favor of Respondents, contrary

to the law. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

Cost Management Services Inc. v. Washington National

Gas Co., 99 F.3d 937, 950 (9th Cir. 1996).

Simple review of Article 14h) demonstrates that the

Peace Treaty was not intended to extinguish Petitioners’

rights to sue Japanese companies for their private, profit-

making commercial activities. Article 14(b) of the Peace

Treaty states:

Except as otherwise provided in the present

Treaty, the Allied Powers waive [1] all repara-

tions claims of the Allied Powers, [2] other claims

of the Allied Powers and their nationals arising

out of any actions taken by Japan and its nation-

als in the course of the prosecution of the war,

and [8] claims of the Allied Powers for direct

military costs of occupation.

Peace Treaty, Article 14(b) (bracket mumbers added).

Article 14(b) delineates three specific waivers, only one of

which is relevant to the instant litigation.

The first is a waiver of all reparations claims of the

Allied Powers. In the context of war, “reparations” is

defined as “[pJayment made by one country to another for

damages during war.” Black’s Law Dictionary 1298 (6th

ed. 1990). This first waiver, therefore, extinguishing the

Japanese government’s wartime debts to the governments

of the Allied Powers, is not applicable here. The last

waiver, extinguishing the claims of the Allied Powers for

the costs of post-war occupation of Japan, also is not

relevant to the instant suits. _ ~

The second waiver — at issue here — extinguishes

“other claims of the Allied Powers and their nationals

13

arising out of any actions taken by Japan and their na-

tionals in the course of the prosecution of the war... .” Id.,

clause 2 (emphasis added). In reading this waiver, this

Court is instructed by its prior pronouncements that

“treaties are the subject of careful consideration before

they are entered into, and are drawn by persons compe-

tent to express their meaning and to choose apt words in

which to embody the purposes of the high contracting

parties.” Rocca v. Thompson, 223 U.S. 317, 332 (1912).

Recognizing that “a greater degree of professionalism

and more painstaking care [is] given to the process of

formulating the ideas to be embodied in [a treaty] and in

drafting it than is generally the case for domestic stat-

utes,” 1A Singer, Sutherland on Statutory Construction,

§ 32.08 at 572 (4th ed. 1984), a court should seek to give

meaning and value to each and every word in the Article

14(b), clause 2, provision. Clause 2, on its face, cemcains an

important qualifier: Not all claims for any wartime actions

taken by Japanese nationals are waived — rather only

those wartime “actions taken ... in the course of the

prosecution of the war.”

If the drafters of the Peace Treaty chose to limit the

waiver to actions taken “in the course of the prosecution of

the war,” rather than a blanket waiver of all acts during

the war, there is no basis to conclude that the Federal

government intended to prohibit private claims for private

conduct from going forward. While the Ninth Circuit held

that the Constitution “allocates the power over foreign

affairs to the federal government exclusively,” 317 F.3d at

1025, certainly the Federal government may choose to

permit individuals to recover on private claims — especially

when it has provided no form of compensation to these

individuals. Forfeiture of such claims would constitute a

14

denial of due process. Attributing value and meaning to

every word, the second waiver, therefore, is only for the

rights of claimants to seek redress for injuries inflicted by

the Japanese corporations in the active engagement of the

war. The phrase “in the course of the prosecution of the

war” does not encompass private, commercial activity of

the Japanese corporations committed between 1941-1945

— the very activity which forms the basis of this litigation.

United States law has been clear on this going back to

1894. Emory v. United States, 19 Ct. Cl. 254 (1894).

Although neither Article 14(b) nor any other provision

of the Peace Treaty defines “in the course of the prosecu-

tion of the war,” the meaning of the phrase becomes clear

when Article 14(b) is compared to Article 19(a) of the Peace

Treaty. Article 19 is the parallel article to Article 14,

waiving the claims of Japan and its nationals against the

Allied Powers and their nationals.

Japan waives all claims of Japan and its nation-

als against the Allied Powers and their nationals

arising out of the war or out of actions

taken because of the existence of a state of

war, and waives all claims arising from the

presence, operations or actions of forces or

authorities of any of the Allied Powers in

Japanese territory prior to the coming into

force of the present Treaty.

Peace Treaty, Article 19 (emphasis added).

Although similarly structured, the difference between

these two articles is striking. While the drafters of the

Peace Treaty specifically limited the second waiver of

Article 14 to actions taken by Japan and its nationals only

in the active engagement of the war (“during the course of

the prosecution of the war”), the waiver of Article 19 is

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15

expanded to any and all actions taken by the Allied Pow-

ers and their nationals during wartime (“arising out of the

war or out of actions taken because of the existence of a

state of war”).

Clearly “actions taken because of the existence of a

state of war” is more expansive than “action taken in the

course of the prosecution of the war.” Article 19(a) is more

generalized and expansive, requiring only a passive nexus

to war-related activity, and not actual activities resulting

directly from the prosecution of the war.

Japanese law required designation of war-related

businesses. On December 17, 1943 the Japanese govern-

ment enacted the Munitions Law which allowed the

government to designate companies as “munitions compa-

nies,” appoint and discipline the directors and managers

and conscript the employees as government workers. See

Jeong v. Onoda Cement Co. Lid., 2000 U.S. Dist. LEXIS

7985 at 25-26 (C.D. Cal. 2000). Thus, the Japanese them-

selves have a historical record of which companies the

Japanese government officially identified as part of the

war effort, and which were not — including the date when

the Japanese government enlisted the company in the war

effort.

The Muniticns Law was construed by the United

States Supreme Court in 1952 in Kawakita v. United

States, 343 U.S. 717, 727-728 (1952) which affirmed a

treason conviction of an American citizen who abused

United States POWs while employed by a private Japa-

nese company. The defendant, Kawakita, argued that his

conduct during the war was coerced and that all Japanese

companies were part of the war effort. Justice Douglas

16

rejected the argument that all Japanese companies should

be deemed to be part of the war effort:

The Oeyama Nickel Industry Co., Ltd., was a

private company, organized for profit. It was en-

gaged in producing metals used for war under

contracts with the Japanese government. In 1944

it was designated by the Japanese government

as a munitions corporation and under Japanese

law civilian employees were not allowed to

change or quit their employment without the

consent of the government. The company’s mine

and factory were manned in part by prisoners of

war. They lived in a camp controlled by the

Japanese army. Though petitioner took orders

from the military, he was not a soldier in the

armed services; he wore insignia on his uniform

distinguishing him as nonmilitary personnel; he

had no duties to perform in relation to the pris-

oners, except those of an interpreter. His em-

ployment was as an interpreter for the Oeyama

Nickel Industry Co., Ltd., a private company. The

regulation of the company by the Japanese gov-

ernment, the freezing of its labor force, the as-

signment to it of prisoners of war under military

command were incidents of a war economy. But

we find no indication that the Oeyama Company

was nationalized or its properties seized and op-

erated by the government. The evidence indicates

that it was part of a regimented industry; but it

was an organization operating for private profit

under private management. We cannot say that

[Kawakita’s] status as an employee of a private

company was changed by that regimentation of

the industry. (emphasis added)

Kawakita compels the conclusion that the Ninth Circuit’s

decision must be reversed.

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17

The phrase “in the course of the prosecution of the

war” is a term of art. It possesses a special meaning, as

indicated by the specific use of the term in statutes and

judicial] decisions prior to, and during the time, that the

Peace Treaty was negotiated.’ Reference to these cases

supports a broader scope of rights than the Ninth Circuit

found.

The first reported use of the phrase “in the prosecu-

tion of the war” is found in a federal statute enacted in the

aftermath of the Mexican-American War. The Act of

February 19, 1879, ch. 90, 20 Stat. 316 (1879) (hereinafter

“Act of 1879”) used the phrase “in the prosecution of the

war” to limit the scope of eligibility for extra war-time

related compensation. 4Ithough all members of the armed

services were employed during the war with Mexico, the

statute “[p]rovided[] that the provisions of this act shall

include ... soldiers .. . employed in the prosecution of said

war.” Id.

The limiting phrase “in the prosecution of said war”

was deemed to possess a meaning equivalent to “in actual

service during the war.” Emory v. United States, 19 Ct. Cl.

254 (1894) (explaining that the Act of 1879 was meant to

continue a war service benefit that had lapsed and to allow

soldiers as well as volunteers to recover, but was not

meant to expand the eligibility requirements to those with

an indirect connection to the fighting of the war). Both

phrases have been interpreted to mean “‘[s]omething more

than a mere muster into service. ... Recruits who had not

See Vienna Convention, art. 31(4) (requiring courts to apply the

“special meaning” of a word if the parties so intended).

18

left the United States for the seat of war, or if they had left

it, but had not joined their respective companies, [were]

not entitled to the extra pay allowed by the fifth section of

the act.’” Emory, 19 Ct. Cl. at 260.

Subsequent decisions also show that the phrase

possesses a narrow meaning. In United States v. North,

112 U.S. 510 (1884), the Supreme Court affirmed a statu-

tory award under the Act of 1879, citing the reasoning in

Emory, 19 Ct. Cl. at 254. In Mitchell v. United States, 24

Ct. Cl. 399 (1889), the court denied the statutory grant of

three months salary to a Navy lieutenant who served his

time during the Mexican War at a naval base in Philadel-

phia because the term “employed in the prosecution of said

war” in the Act of 1879 demanded proof that the lieuten-

ant was “employed in such service as exposed [him], either

immediately or prospectively, to danger, risk, or hardship,

incident alone to the Mexican War, by actual service

therein, to the exclusion of those who, while in the naval

service and employed in their ordinary duties, were not in

any way subject to those incidents.” Jd. at 401.

The phrase “in the prosecution of the war” was also

used in three World War II statutes regulating rights and

benefits of commercial contractors engaging in work “in

connection with the prosecution of the war” or “necessary

to the active prosecution of the war.” As demonstrated in

the cases cited below, courts are competent to distinguish

between production of goods which contribute to the

prosecution of war and those that do not. The First War

Powers Act, § 201, 55 Stat. 838, 839 (1941); 50 U.S.C. app.

611 (Supp. IV 1941) (hereinafter “War Powers Act”),

enabled the President to “authorize any department or

agency of the Government exercising functions in connec-

tion with the prosecution of the war effort” to modify

\

19

contracts “whenever he deems such action would facilitate

the prosecution of the war.” The Act of August 7, 1946, ch.

864, 60 Stat. 902 (1946) (hereinafter “the Lucas Act”),

authorizes equitable claims of contractors against the

government for losses incurred between September :3,

1940 and August 14, 1945.

Interpreting the Lucas Act, the Claims Court in

Richardson v. United States, 114 Ct. Cl. 695 (1949), held

that the Act was also governed by the limiting clause of

the War Powers Act, “in connection with the prosecution of

the war effort,” and therefore did not extend to all com-

mercial contracts. Jd. at 669-700. The Richardson court

found petitioner’s complaint fatally flawed because it

failed to allege a sufficient nexus between the contract and

the prosecution of the war. Id. at 700 (finding loss of profit

for numerous contracts including canals, pipelines, and a

bridge were an insufficient showing to establish a right to

recovery under the Lucas Act).

In Frankel v. Eder, 185 Misc. 274, 56 N.Y.S.2d 727

(1945), the Appellate Division of the New York Supreme

Court interpreted sections 2 and 8 of chapter 315 of the

Laws of 1945, which provided special protection for “war-

contractors” who are “engaged in war work and [who]

manufacture[] and/or produce[] or sell{] vital war materi-

als necessary to the active prosecution of the war...” The

Frankel court found that despite evidence that petitioner

carried gasoline and petroleum products throughout the

world for the War Shipping Administration, id. at 276, 56

N.Y.S.2d 727, petitioner “is not a ‘war contractor’ within

the meaning and intent [of the statute]; it is not engaged in

manufacturing, producing or selling vital war materials

necessary to the active prosecution of the war; its business,

20

admittedly, is solely that of operating a fleet of tankers

.... Id. at 276, 56 N.Y.S.2d 727.

The above cases show that the phrase “in the prosecu-

tion of the war” (or its equivalent) was well known and

had been interpreted in judicial decisions for over 60 years

before the signing of the Peace Treaty. All of the decisions

interpreted the phrase narrowly, limiting its meaning to

activities that are part and parcel of the war effort and

leaving intact claims outside of that scope. Activities

tangential to a war were never found to be “in the prosecu-

tion of the war.” These authorities demonstrate that,

contemporaneously with the negotiation of the Treaty, the

phrase “in the prosecution of the war” was given a limit-

ing, rather than a broad, construction, and establish that

the waiver in the Treaty should likewise be read narrowly

rather than broadly. See Geofroy v. Riggs, 133 U.S. 258,

272 (1890) (“where a treaty admits of two constructions,

one restrictive of rights that may be claimed under it and

the other favorable to them, the latter is to be preferred”)

If the drafters of the Peace Treaty had intended a

waiver of all claims of nationals of the Allied Powers

arising during the war, the Treaty would not have used the

limiting language of “in the prosecution of the war,” but

rather more expansive language as they had in Article 19

and other provisions throughout the Treaty. The specific

use of the narrow terminology in Article 14(b), in light of

the previous court decisions confirming the limited mean-

ing of such terminology, shows that Article 14(b) was not

meant to extinguish claims based upon activities of the

private Japanese corporations merely because such activi-

ties were committed by the corporations during wartime.

city .

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21

Whether Respondents’ conduct was in the prosécution

of the war raises issues of fact which preclude dismissal. If

the United States Supreme Court refused to concede a

blanket participation in the war by all Japanese compa-

nies and instead looked at the facts specific to a company,

the Court below was obliged to do likewise.

III. The Rights of Petitioners That Have Been

Violated by Respondents are Jus Cogens or

Peremptory Norms of International Law That

Are So Fundamental They Cannot Be Abro-

gated by Any Treaty or Agreement

Principles of international law known as “jus cogens”

or “peremptory norms” incorporate values that are so

central to the international community that no country

may diverge or derogate from them. All nations are bound

by jus cogens principles, regardless of consent, because

“universal norms constituting jus cogens transcend such

consent.” Siderman de Blake v. Republic of Argentina, 965

F.2d 699, 715 (9th Cir. 1992). See also Vienna Convention,

arts. 53,” 64°(stating that treaty provisions in violation of

2

states:

A treaty is void if, at the time of its conclusion, it conflicts

with a peremptory norm of general international law. For

the purposes of the present Convention, a peremptory norm

of general international law is a norm accepted and recog-

nized by the international community of States as a whole

as a norm from which no derogation is permitted and which

can be modified only by a subsequent norm of general

international law having the same character.

Article 64 of the Vienna Convention on the Law of Treaties

provides that:

Article 53 of the Vienna Convention on the Law of Treaties

3

(Continued on following page)

22

Jus cogens norms are void); The Schooner Amistad, 40 U.S.

(15 Pet.) 518, 553, 595-96 (1841) (treaty with Spain could

not be invoked to require the return of fugitive slaves

because “where human life and human liberty are in issue,

and constitute the very essence of the controversy, a

{treaty pertaining to ships and cargo] could never have

intended to. . . deprive foreigners of the protection given

them. . . by the general law of nations”); United States v.

Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995)

(recognizing that jus cogens rules “[aJre nonderogable and

peremptory, enjoy the highest status within customary

international law, are binding on all nations. and cannot

be preempted by treaty”); Committee of U.S. Citizens

Living in Nicaragua v. Reagan, 859 F.2d 929, 939-40 (D.C.

Cir. 1988) (describing jus cogens as an elite subset of the

norms recognized as customary international law).

Slavery and the slave trade, torture, summary execu-

tion, disappearance, prolonged arbitrary detention, geno-

cide and systematic racial discrimination all constitute jus

cogens violations. Siderman, 965 F.2d at 715-16 (citing

Restatement (Third) of the Foreign Relations Law of the

United States § 702 cmt. n (1987)). Indeed, enslavement

was classified by the Nuremberg Tribunal as a “crime

against humanity.” The Nuremberg Trial, 6 F.R.D. 69, 130

(Int'l Military Tribunal 1946). Private citizens and corpo-

rate entities were criminally prosecuted at Nuremberg for

utilizing slave laborers in the Industrial Cases. See United

States of America v. Alfred Felix Alwyn Drupp von Bohlen

“li]f a new peremptory norm of general international law

emerges, any existing treaty which is in conflict with that

norm becomes void and terminates.”

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und Halbach, IX Trials of War Council Law No. 10 (1950)

(finding criminal liability because the company was a

private profit making institution and defendants inde-

pendently sought to improve their profit margin by in-

creasing production with slave labor); United States v.

Friedrich Flick, V1 Trials of War Criminals Before The

Nuremberg Military Tribunals Under Control Council No.

10 (1952) (finding criminal culpability for two defendants

who took the initiative to increase the company’s produc-

tion of freight cars and attempted to further use of slave

labor to accomplish this end); United States of America uv.

Carl Krauch, VIII Trials of War Criminals Before the

Nuremberg Military Tribunals Under Control Council Law

No. 10, 1179 (1952) (finding criminal liability for members

of chemical and pharmaceutical company for their actions

in constructing a synthetic rubber plant adjacent to

Auschwitz). See also Matthew Lippman, War Crimes

Trials of German Industrialists: The “Other Schindlers,” 9

Temp. Int’l & Comp. L.J. 173 (1995).

The crime of slavery is thus classified as a universal

crime, and “enslavement [is] to be opposed and punished,

wherever [it] may have been committed.” Prosecutor uv.

Tadic, Int'l Crim. Tribunal for the Former Yugoslavia, IT-

94-1-AR72 (Appeals Chamber, Oct. 2, 1994), reprinted in

Jordan J. Paust, Joan M. Fitzpatrick, and Jon M. Van

Dyke, International Law and Litigation in the U.S. 452,

453 (2000) (quoting from General Wagener, Revista Penale

753, 757 (Sup. Mil. Trib., Italy 1950)). Slavery includes

forced labor. United States v. Matta-Ballesteros, 71 F.3d

754, 764 n.5 (9th Cir. 1995) (citing Siderman de Blake, 965

F.2d at 717)). Civil liability for the use of slave labor is

established by showing that a private party “participated

[or cooperated] in the forced labor practices.” Jd. at 1310.

24

International law is part of the law of the United

States. The Paquete Habana, 175 U.S. 677, 700 (1900);

The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815); Filartiga

v. Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980); Fernan-

dez-Rodriguez v. Wilkinson, 505 F. Supp. 787, 795-800 (D.

Kan. 1980); Paust, Fitzpatrick, and Van Dyke, supra, at

110-33; Jordan J. Paust, International Law as Law of the

United States 5-9 (1996). United States courts are bound

te apply treaties ratified by the United States as well as

customary international law. United States Constitution,

arts. III, § 2, VI, cl.2; Paust, Fitzpatrick, and Van Dyke,

supra, at 110-33, 345-60, 369-73; Paust, supra, at 5-9, 51-

64, 81-101, and numerous references cited therein. United

States courts are also obliged to interpret federal statutes

and executive pronouncements to be consistent with

customary international law. See, eg., Murray v. The

Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804);

Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); 1 Op.

Att’y Gen. 26, 27 (1792); Paust, supra, at 34 n.37, 107-08

n.9; Paust, Fitzpatrick, and Van Dyke, supra, at 141-42,

283, 438, 635.

The United States Supreme Court has ‘never ruled on

the issue of whether the government may waive the jus

cogens claims of its citizens. However, several decisions of

the Supreme Court make it clear that in those rare in-

stances where the United States waives commercial

claims for violations of international norms, the United

States must compensate the holders of the claims notwith-

standing any treaty to the contrary. The most important

decision in this regard is The Paquete Habana, 175 U.S.

677 (1900), which is most often cited for the proposition

that international law is part of United States law. In The

Paquete Habana Cuban nationals sued the United States

aia Tinta Baha

25

for seizing and selling two coastal fishing vessels during

the Spanish American War. The Supreme Court held that

the seizure and sale were violations of customary interna-

tional law and the Cuban nationals were entitled to

damages notwithstanding the wartime actions of the

United States in blockading the harbors of Cuba and the

treaty ending the war.

Two other decisions bear upon what powers the

United States has in concluding treaties that may impact

on the commercial claims of its nationals. In Ware uv.

Hylton, 3 U.S. (3 Dall.) 199, 279 (1796) the United States

Supreme Court upheld the validity of a pre-Revolutionary

War debt owed by a Virginia citizen to a British citizen

notwithstanding a Virginia statute that nullified debts to

British citizens if the amount of the debt was paid into the

State treasury. In doing so, the Court upheld the Treaty of

Paris of 1783 and the right of the new nation to preserve

debts that may have been nullified by the States. Justice

Chase rejected the idea that a government could waive

private claims without compensation to the claimants:

That Congress had the power to sacrifice the

rights and interests of private citizens to secure

the safety or prosperity of the public, I have no

doubt; but the immutable principles of justice;

the public faith of the States, that confiscated

and received British debts, pledged to the debt- —

ors; and the rights of the debtors violated by the

treaty; all combine to prove, that ample compen-

sation ought to be made to all the debtors who

have been injured by the treaty for the benefit of

the public. This principle is recognized by the

Constitution, which declares, “that private prop-

erty shall not be taken for public use without just

compensation”. See Vattel. Lib. 1. c. 20. s. 244.

26

Id. at 245. Justice Chase’s citation to “the immutable

principles of justice” supports the conclusion that the

Federal government cannot waive claims, even as part of a

peace settlement, without compensating those whose

claims have been violated.’ Justice Iredell wrote in the

same case that if Congress had given up the rights of

private persons in a peace treaty “as the price of peace,”

the private individuals whose “rights were sacrificed”

might well “have been entitled to compensation from the

public” for their loss. Id. at 279.

Jus cogens claims stand on a different footing than

commercial claims. They are ordinal rules of civilization

which no nation can derogate or waive. The vindication of

jus cogens claims is as essential to justice as is the pay-

ment of compensation. “. . . /JJus cogens (or “compelling

law”) enjoy the highest status in international law and

prevail over both customary international law and trea-

ties.” Committee of U.S. Citizens in Nicaragua v. Reagan,

859 F.2d 929, 935 (D.C. Cir. 1988).

Such basic norms of international law as the pro-

scription against murder and slavery may well

have the domestic legal effect that appellants

suggest. That is, they may well restrain our gov-

ernment in the same way that the Constitution

restrains it.

Id. at 941.

‘ See also 3 U.S. at 229 (“It is admitted, that Virginia could not

confiscate private debts without a violation of the modern law of

nations. . .”) and id. at 242 (“If the treaty had been silent as to debts,

and the law of Virginia had not been made, I have already proved that

debts would, on peace, have been revived by the law of nations”).

27

IV. The Ninth Circuit Erred in Holding That

Petitioners’ Claims Are Barred by the Statute

of Limitations

Following its discussion of the War power, the Ninth

Circuit concluded that in any event Petitioners’ claims are

barred by the statute of limitations. The Ninth Circuit

ruled that it would have to apply the statute of limitations

which California would apply, 317 F3d at 1027, but

inexplicably concluded that the longer statute of limita-

tions of section 354.6 was trumped by the shorter statutes

of limitations otherwise provided under California law. 317

F.3d at 1028. This analysis errs, because it is purely a

question of California law to determine what statute of

limitations shall apply, and California already made this

determination by providing for an extension of the statute

of limitations for Petitioners’ claims. Rather than pay

proper deference to California, the Ninth Circuit abro-

gated California’s effort to provide a forum for Petitioners’

claims. This was error and mandates granting of this

petition.

28

V. Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOSEPH W. COTCHETT LOURDES SANTOS TANCINCO

STEVEN N. WILLIAMS TANCINCO LAW OFFICE

COTCHETT, PITRE, SIMON & One Hallidie Plaza,

McCARTHY Suite 818

840 Malcolm Road San Francisco, CA 94102

Burlingame, CA 94010 415-397-0808

650-697-6000

MICHAEL E. WITHEY ROBERT HARWOOD

STRITMATTER KESSLER WESCHSLER HARWOOD LLP

WHELAN WITHEY COLLUCIO 488 Madison Avenue,

200 Second Avenue West 8th Floor

Seattle, WA 98119 New York, NY 10022

206-448-1777 212-935-7400

Counsel for Petitioners

June 4, 2003

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